People v. Harrell
| Citation | 54 Mich.App. 554,221 N.W.2d 411 |
| Decision Date | 12 August 1974 |
| Docket Number | Docket No. 13068,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Walter Gene HARRELL, Jr., Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.
Defendant was convicted by a jury of assaulting a police officer, M.C.L.A. § 750.479; M.S.A. § 28.747, and fleeing and eluding a police officer, M.C.L.A. § 750.479a; M.S.A. § 28.747(1). On December 23, 1971, defendant was sentenced to 6 months in jail and $150 costs, or an additional 30 days in jail on one count, and a suspended sentence of $100 fine and $100 costs on the other count.
Because defendant does not challenge the sufficiency of the evidence to support the convictions, we need not set out at length the conflicting testimony adduced at trial. For our purposes here, it is sufficient to summarize the opposing versions of what transpired on New Year's Eve, 1970.
According to testimony presented by the people, two Jackson police officers attempted to stop a vehicle operated by the defendant for a minor traffic offense. Rather than heeding the officers' directions that he pull over, the defendant led them on a high speed vehicular chase through the streets of Jackson, committing additional traffic violations in the process. Unsuccessful in his attempts to elude the officers by automobile, defendant parked his car in front of a residence located on Euclid Street and ran to the back door of the house. While defendant was trying to enter the house by that door, the law, in the form of one patrolman Williams, caught up with defendant. Officer Williams placed defendant in a 'bear hug' and advised him that he was under arrest for fleeing a police officer. Officer Williams testified that, as he started to bring the defendant around the house towards the street, the defendant struggled, tried to break the officer's hold, and attempted to trip him. Officer Williams then put defendant to the ground and unsuccessfully endeavored to handcuff his hands behind his back. At this point, ten or fifteen people emerged from the house, one identifying herself as the defendant's mother. Apparently sympathizing with defendant's plight, the assembled citizens threateningly demanded his immediate release; resorting to a more basic level of communication, members of the group allegedly struck the officer. Officer Williams was soon joined by one Officer Fredericks, but due to physical harassment by the crowd, they were unsuccessful in handcuffing the defendant. When additional police reinforcements arrived on the scene, the defendant was handcuffed and dragged to a waiting cruiser. Officer Williams testified that prior to being handcuffed, the defendant hit, bit, and kicked him.
Testimony elicited by the defense tended to indicate that defendant violated no traffic ordinances; that he attempted to elude the police when they turned on their sirens because he had been beaten by police officers two nights before this incident; that he did not kick, hit, or bite anyone; and finally, that the police officers, without provocation, physically assaulted him.
On appeal, defendant raises seven issues for our consideration. Further pertinent facts will be given in our discussion of those issues.
Defendant first contends that the prosecutor's failure to endorse certain res gestae witnesses was reversible error.
At trial, defense counsel objected to the prosecuting attorney's failure to endorse certain unspecified res gestae witnesses (apparently those who witnessed the altercation between the police and the defendant, numbering at least 30 to 40 people). The prosecutor responded that the only unendorsed res gestae witnesses known to him were the defendant's parents and that he would endorse them, if defense counsel wished. Relying principally on People v. Harrison, 44 Mich.App. 578, 205 N.W.2d 900 (1973), defendant now asserts that the people were under an affirmative obligation to discover the identity of the unendorsed witnesses and present them at trial.
Defendant's reliance on Harrison, supra, is clearly misplaced. In Harrison, at the time of trial, the prosecutor knew the identity of the five res gestae witnesses defense counsel wished to be endorsed. 1 The prosecutor's position on appeal was that he was under no obligation to endorse witnesses whose identity he had acquired after the filing of the information. This Court rejected that contention and held that the prosecutor may be obligated to endorse witnesses whose identity he learns after the information is filed but before the trial begins. In the present case, the prosecutor did not know the names of the res gestae witnesses, either at the time the information was filed or at the time of trial. Under these circumstances, Harrison is inapplicable and the general rule, that the prosecutor need not endorse res gestae witnesses whose identity is unknown to him, governs. People v. Loggins, 17 Mich.App. 388, 169 N.W.2d 519 (1969).
Defendant's next contention, that the prosecutor's closing remarks were so prejudicial as to deny him a fair trial, is similarly without merit. Since we find that any alleged prejudice resulting from the remarks in question could have been vitiated by a curative instruction, defense counsel's failure to object is fatal to the present claim on appeal. People v. Tarpley, 41 Mich.App. 227, 199 N.W.2d 839 (1972).
Defendant next alleges that the trial court's failure to examine the jury on voir dire, as requested, with respect to racial prejudice denied him his constitutional right to a trial by a fair and impartial jury and mandates reversal.
Prior to trial, defense counsel submitted 120 questions to be asked during voir dire. Although the trial court chose not to ask the specific questions propounded by defense counsel, he did cover the subject matter involved in those questions thoroughly. For example, the trial court asked the following questions during voir dire:
'Have any of you had any dealings or experiences with black persons that might make it difficult for you to sit in impartial judgment on this case? By 'you' I mean also members of your immediate family, your spouse, your children?
'(none)
'The Court: Will the fact that the defendant is black in anyway affect your judgment in this cause?
'(none)
'The Court: Would any of you give more credence to the testimony of a white person than you would give to the testimony of a black person, everything else being equal?
'(none)
'The Court: That is give two persons of equal statute and so forth upon the stand, equal appearance, and one is a white skin, one has a black skin, would that in anyway prejudice you in either way?
'(none)
'The Court: Would any of you give the police officers any more credence in their testimony than you would a person who is not a police officer, because of the fact that the witness was a police officer?'
The extent of allowable voir dire is largely a matter of judicial discretion as to manner and scope and the trial court is not required to conduct the voir dire in the precise language proposed by counsel. People v. Holffmeister, 52 Mich.App. 219, 217 N.W.2d 58 (1974). The trial court's voir dire was sufficient to afford defense counsel information necessary to challenge the prospective jurors, either peremptorily or for cause. Further, in light of the fact that defense counsel did not exhaust his peremptory challenges and expressed satisfaction with the jury at the end of the trial court's extensive voir dire, the defendant's position is without merit.
Next, defendant challenges the trial court's rulings with respect to a number of evidential questions.
During trial, defense counsel attempted to introduce testimony that, two nights before the incident in question, the defendant had been beaten by police officers. Counsel apparently did so in an effort to show that the defendant attempted to elude the police because he was frightened by the prospect of being beaten again. The trial court ruled the proffered testimony inadmissible.
Decisions with respect to the materiality and relevancy of proffered evidence are within the discretion of the trial court and our review of such decisions is limited to a determination of whether the trial court abused that discretion in admitting or excluding the proffered testimonial or physical evidence. People v. Moore, 51 Mich.App. 48, 214 N.W.2d 548 (1974); ...
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