People v. Hana
| Decision Date | 01 March 1994 |
| Docket Number | 94877 and 94878,Docket Nos. 94542,Nos. 3-4,s. 3-4 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Durid Bajhat HANA, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Aldo Sam GALLINA, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Eric Christopher RODE, Defendant-Appellee. Calendar, |
| Court | Michigan Supreme Court |
John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research, Training and Appeals, Janice M. Joyce Bartee, Asst. Pros. Atty., Detroit, for State in Nos. 94877, 94878.
State App. Defender Office by Peter Jon Van Hoek, Asst. Defender, Detroit, for defendant-appellee Aldo Gallina.
Edick and Esper, P.C., David J. Esper, Dearborn, for defendant-appellee Eric Rode.
Levada Austin-Giesey, President, Metro Detroit Chapter, Parents of Murdered Children, Inc., Pontiac, amicus curiae, brief on appeal in Nos. 94877, 94878.
We have consolidated the appeals of these cases to consider related issues regarding the severance of trials of codefendants in criminal cases. In People v. Hana, we address the question whether the trial court should have granted defendant's motion for severance in the context of the presentation of allegedly antagonistic defenses. In People v. Rode and People v. Gallina, the question presented is whether the dual-jury procedure utilized in these cases unduly prejudiced the defendants.
We hold, in line with M.C.L. § 768.5; M.S.A. § 28.1028 and MCR 6.121(D), that the decision to sever or join defendants lies within the discretion of the trial court. Severance is mandated under MCR 6.121(C) only when a defendant demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice.
Judged by this standard, we find in People v. Hana that the trial court did not abuse its discretion in denying defendant's motion for severance. The decision of the Court of Appeals is therefore affirmed.
In People v. Rode and People v. Gallina, we conclude that the defendants have not demonstrated prejudice to their substantial rights. The use of separate juries is a partial form of severance to be evaluated under the standard, set forth above, applicable to motions for separate trials. The issue is whether there was prejudice to substantial rights after the dual-jury procedure was employed. On the basis of a review of the record, we find no demonstrated prejudice to either defendant under these circumstances. The Court of Appeals conclusion to the contrary is therefore reversed.
Defendant Durid Hana was convicted of possession of over 650 grams of cocaine, M.C.L. § 333.7403(2)(a)(i); M.S.A. § 14.15(7403)(2)(a)(i), and delivery of over 225, but less than 650, grams of cocaine. M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii).
Defendant and his brother, Kafan, were arrested following a controlled narcotics purchase in January, 1988, that took place at the Sterling Heights home in which the defendant and his brother lived with their parents and siblings.
At trial, it was established that the drug transaction arose out of a conversation between James Hornburger and Raed Alsarih at the Sterling Heights High School where they were students. Hornburger approached Alsarih about obtaining twelve ounces of cocaine for Stephen Putnam (an undercover narcotics police officer). Alsarih confirmed the transaction after contacting his "connection," Kafan. Hornburger, Putnam, and Alsarih drove to Kafan's home. Alsarih went to the door and spoke with defendant. Defendant contacted Kafan by beeper and reported that Kafan would be back in fifteen minutes. Putnam, Alsarih, and Hornburger drove to a parking lot, waited, and then returned to the Hana home. Defendant told Alsarih that Kafan had not yet returned. Putnam then dropped Alsarih and Hornburger off at Alsarih's home, with instructions to call him when Kafan arrived. Alsarih eventually called Putnam and reported that Kafan would have the twelve ounces of cocaine at 7:00 p.m.
Putnam picked up Alsarih and Hornburger and they again drove to the defendant's home. When they arrived, nobody answered the door. After waiting a minute or two, they saw Kafan drive up and Alsarih and Kafan went into the house together.
According to Alsarih, testifying pursuant to a plea bargain, he went to a back bedroom with Kafan where defendant was sleeping. Defendant awoke when Kafan turned on the light. While Kafan opened a safe, defendant asked Alsarih whether the person outside was a police officer and whether Alsarih had dealt with him before. Kafan removed a plastic bag from the safe, mixed it with the contents from some other bags and gave it to Alsarih. Alsarih was given an "eight ball" (one-eighth ounce of cocaine), which was to be given to Hornburger for his part in the transaction. They then proceeded to the door and Kafan watched while Alsarih went out to Putnam's car. As Putnam opened the door, Alsarih explained that he had been instructed not to get in. Putnam then put his car keys on top of the car and refused to leave. Defendant was watching from the living room window. Alsarih then got in the back seat, gave the bag of cocaine to Putnam and Putnam handed him $12,500 in marked money. Putnam signaled to a surveillance team, which moved in and arrested Hornburger, Alsarih, Kafan, and defendant.
A subsequent search of the home, pursuant to a search warrant, disclosed that the safe contained three kilograms of cocaine, miscellaneous jewelry and papers, a telephone recorder, and a telephone beeper. Both Kafan and defendant initially denied knowing the combination to the safe. However, Kafan later supplied the combination, and defendant admitted that the safe belonged to him (defendant).
Both defendant and Kafan filed pretrial motions for separate trials. Following a hearing, the trial court denied severance. Kafan's attorney renewed the motion during trial after the prosecution rested its case, but the trial judge again denied the motion. Defendant was tried jointly with Kafan before a jury in February 1989. 1 Neither the defendant nor his brother testified. Defendant was convicted, as charged (as was Kafan).
The trial court imposed a prison term of from ten to thirty years for the delivery count and a nonparolable life sentence for possession of 650 or more grams of cocaine. Defendant appealed, alleging in pertinent part that the trial court erred in denying his motion for a separate trial. The Court of Appeals rejected defendant's severance claim and affirmed his conviction. Unpublished opinion per curiam, issued March 20, 1992 (Docket No. 119380).
Defendant's motion for a rehearing was denied, and he then filed a delayed application for leave to appeal with this Court. In an order dated June 28, 1993, we granted leave to appeal, consolidating this case with People v. Rode and People v. Gallina, for consideration of related issues concerning the severance of trials of criminal defendants. 442 Mich. 935, 503 N.W.2d 909.
Following a joint trial before separate juries, defendants Eric Rode and Aldo Gallina were convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), stemming from the killing of a young man in Dearborn in 1989. An explanation of the relevant events is set forth in the Court of Appeals opinion:
On July 2, 1989, defendants were riding around in a Chevrolet Camaro with some high school friends. The Camaro was owned by defendant Gallina's cousin, Frank Kuhne. Defendant Gallina, age fifteen, was seated in the front passenger seat, and defendant Rode, age sixteen, was in the back seat on the passenger side. A Ford Mustang pulled beside the Camaro and the Mustang's occupants, Edward and Charles Schramek, indicated that they wanted to race. When the cars were side by side, Charles and the other occupants of the Camaro began shouting at each other. Charles shouted, "You're lucky we don't pull our gun out and shoot you." At that point, defendant Gallina pulled a gun from the front panel of the car, where he knew his cousin kept it, and fired it out the window more than once. Defendant Rode then took the gun from defendant Gallina. Defendant Gallina testified that defendant Rode said, "If you are not going to shoot at them, I will." Defendant Rode fired the gun toward the tires of the Mustang.
Defendant Rode testified that after he shot toward the tires, the gun went back to defendant Gallina, who shot the gun again. Defendant Rode then reloaded the gun with bullets supplied by defendant Gallina. The Mustang continued to follow the Camaro. The driver of the Camaro stopped the car suddenly, and, as the Mustang passed the driver's side of the Camaro, one of the defendants pulled himself up out of the passenger-side window and shot several times over the roof of the Camaro into the passenger side of the Mustang. Charles was killed by one of these shots.
Each defendant testified after the prosecutor rested. Each denied firing the gun over the roof as the Mustang passed the Camaro, and each claimed that the other defendant fired the gun. Jonathan Warmack, who was driving the Camaro, testified that defendant Gallina did not fire the gun when the Mustang was passing. Warmack also testified that after the Mustang passed by, defendant Rode said, "I know I hit him." Brad Andrews, who was in the back seat of the Camaro on the driver's side, made a statement to the police wherein ...
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