People v. Hall

• Decision Date: 03 June 1976
• Docket Number: No. 2,J,2
• Citation: 396 Mich. 650,242 N.W.2d 377
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sam HALL, Defendant-Appellant. une Term 1975. 396 Mich. 650, 242 N.W.2d 377
• Court: Michigan Supreme Court

Page 377

242 N.W.2d 377

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sam HALL, Defendant-Appellant.

No. 2, June Term 1975.

396 Mich. 650, 242 N.W.2d 377

Supreme Court of Michigan.

June 3, 1976.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Detroit, for plaintiff-appellee.

State Appellate Defender Office by Dennis H. Benson, Asst. Defender, Detroit, for defendant-appellant.

LINDEMER, Justice.

Defendant was charged with the robbery and beating death of Albert Hoffman on January 13, 1967. Two witnesses, Kimbrough and Tarver, saw two men attack Hoffman and rob him. They heard one assailant say,

'If you move again, we'll kill you,' and 'Get his watch and ring'.

While the defendant was being held in the Wayne County Jail on an unrelated charge, he participated in separate lineups for each of the two witnesses. At these lineups all subjects were told to repeat the assailant's statements. The defendant was identified by both Kimbrough and Tarver at the lineups and at trial. Defendant was subsequently charged with felony murder, M.C.L.A. § 750.316; M.S.A. § 28.548. After a first trial ended in a hung jury, defendant was jury-convicted of felony murder in a second trial. That conviction was affirmed by the Court of Appeals, 24 Mich.App. 509, 180 N.W.2d 363 (1970), and this Court denied leave to appeal, 384 Mich. 785 (1970).

Defendant subsequently filed with the trial court a delayed motion for new trial, which was denied. From this denial, defendant filed a petition for mandamus in the Court of Appeals, which was apparently treated as an application for delayed appeal and denied. Defendant's application for leave to appeal was granted by this Court, 391 Mich. 786 (1974). The prosecutor's motion to strike six of the seven issues in this case was denied by order, 394 Mich. 907 (1975), so this opinion will consider all seven issues.

Defendant first claims that his right to be free from unreasonable searches and seizures under U.S.Const., Am. IV, and Const.1963, art. 1, § 11, was violated by forced participation in a lineup while in policy custody. It does not appear from the record that defendant was forced to participate in the lineup, but neither is consent evident. We treat defendant's participation as forced. We agree with appellant that confinement in the Wayne County Jail did not strip him of all constitutional rights, People v. Trudeau, 385 Mich. 276, 187 N.W.2d 890 (1971). However, the Court of Appeals did not err in concluding that, once initially restrained by lawful incarceration without infringement of any search and seizure rights, the forced participation in a lineup, complete with speaking requirement, does not constitute an unreasonable search and seizure. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Defendant next argues that his conviction may not be sustained since it is based solely on untrustworthy, unreliable and legally insufficient evidence. That the corpus delicti of the crime was established is not challenged. The identification of defendant by witnesses Kimbrough and Tarver was thoroughly explored at trial before the jury. Such identification testimony, if believed by the jury, established defendant as one of the perpetrators of the crime.

'Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. Where sufficient evidence exists, which may be believed by the jury, to sustain a verdict of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed by an appellate court. People v. Moore, 306 Mich. 29, 33, 10 N.W.2d 296 (1943).' People v. Palmer, 392 Mich. 370, 376, 220 N.W.2d 393, 395 (1974).

This claim of error is without merit.

Defendant challenges that his second trial after the first trial ended with a hung jury violated his right not to be twice placed in jeopardy under Const.1963, art. 1, § 15, citing People v. Duncan, 373 Mich. 650, 130 N.W.2d 385 (1964). In Duncan, as in this case, there was a lengthy period of jury deliberations. In both cases testimony and supplementary charges were given. In contrast to Duncan, the trial court here followed the better practice (as suggested by Duncan) by making further inquiry to determine whether there was any probability that the jury ultimately could agree on a verdict. When the court ascertained there was not, the mistrial was declared. The holding of Duncan applies in this case. The double-jeopardy guarantee does not bar retrial where, as here, the trial court has reasonably concluded that the jury is unable to agree on a verdict.

Defendant complains of the unconstitutionality of Michigan's former notice-of-alibi statute, M.C.L.A. § 768.20; M.S.A. § 28.1043, in connection with an attempt by the prosecutor to introduce a prior inconsistent statement for alibi rebuttal. Since there was no notice of this statement to defendant, its admission, defendant claims, would have violated the statute. We do not reach the question. The statement was never admitted, and there was no impermissible intimation as in People v. Jones, 293 Mich. 409, 292 N.W. 350 (1940). Defendant was able to present his complete alibi defense. This claimed error is without substance.

Defendant charges that misconduct by the prosecutor deprived him of a fair trial. We agree with the prosecutor that defendant, by appellate counsel, imposes on this Court by claiming that the prosecutor knowingly permitted the introduction of false testimony. Witnesses Kimbrough and Tarver never precisely identified when the crime took place. Inconsistencies in time statements of Kimbrough and Tarver and throughout defendant's alibi testimony were thoroughly weighed and resolved by the jury against defendant.

No objections or requests for curative instructions were made in response to the prosecutor's closing argument, so we will reverse only if such instructions could not have cured any prejudice. People v. Humphreys, 24 Mich.App. 411, 416, 180 N.W.2d 328 (1970). Commentary on the evidence adduced at trial did not amount to statements of fact by the prosecuting attorney, so there is no error under People v. Ignofo, 315 Mich. 626, 24 N.W.2d 514 (1946).

In the course of closing argument, the prosecutor said:

'If any person committing a crime or being suspected of committing a crime could say to a police officer, 'I am not coming out of my cell for anybody to look at me,' then let's throw away our law books and let's eliminate our courts and try these cases on the streets with a shotgun and a pistol and go back to the Dark Ages.

'But, by the same token, members of the jury, the People of the State of Michigan have some rights. We have a right to be safe and secure in our homes and on our streets. We have a right to protect ourselves against predatory animals. We have a right to ask citizens of our community for honest and decent verdicts, and we ask for those rights in the name of the People of the State of Michigan.

'Albert Hoffman had some rights, ladies and gentlemen. He had a right to live until God took him away and his wife had a right to his company until that time. But he was snatched away by someone who did not accord him the rights this defendant demands. This defendant was judge, jury and executioner that night at Van Dyke and Gratiot on his seventy-third birthday.'

Whether or not in total context this language is improper, we cannot agree with defendant that appropriate cautionary instructions given on request would not have cured any error. Indeed, the trial court gave the following agreed-upon and appropriate instruction:

'(A)rguments of counsel are not evidence in the case and should not be construed by you (the jury) as such. The purpose of arguments of counsel is to assist you in coordinating, summarizing and drawing conclusions from what testimony and evidence you have heard.'

The remaining statements are justifiable in response to the...