People v. Holly

• Citation: 129 Mich.App. 405,341 N.W.2d 823
• Decision Date: 15 December 1983
• Docket Number: 59282,Docket Nos. 58429
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Duane HOLLY, a/k/a Kenneth Duane Holley, Defendant-Appellant, and PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Barry B. PEARSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 823

341 N.W.2d 823

129 Mich.App. 405

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Duane HOLLY, a/k/a Kenneth Duane Holley, Defendant-Appellant, and PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Barry B. PEARSON, Defendant-Appellant.

Docket Nos. 58429, 59282.

Court of Appeals of Michigan.

Submitted Oct. 14, 1982.

Decided Oct. 10, 1983.

Released for Publication Dec. 15, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., Edwin R. Brown, Asst. Pros. Atty., for the People.

David M. Hartsook, Fenton, for defendant-appellant Holly.

Roger A. Lange, Flint, for defendant-appellant Pearson.

Before HOLBROOK, P.J., and J.H. GILLIS and DODGE ^*, JJ.

DODGE, Judge.

Following a joint jury trial, codefendants were each found guilty of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendants appeal as of right.

Defendants first argue that the trial court incorrectly denied their motion for separate trials. Generally, a defendant does not have a right to a separate trial; joinder is usually within the discretion of the trial court. M.C.L. Sec. 768.5; M.S.A. Sec. 28.1028; People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976). In fact, strong policy exists favoring joint trials and a defendant must make an affirmative showing that his substantial rights will be prejudiced before he is entitled to severance. People v. Dunlap, 87 Mich.App. 528, 274 N.W.2d 62 (1978). Such a showing of prejudice must be supported by an affidavit defining the inconsistencies between the defenses of the parties. People v. Smith, 73 Mich.App. 463, 252 N.W.2d 488 (1977), lv. den. 402 Mich. 803 (1977).

Clearly in the present case, there were no affidavits supporting the severance motion which defined the inconsistencies between the respective defenses. However, the record establishes that not until the eve of trial did counsel even discover that the codefendants would testify, as neither had testified at the preliminary examination and all indications were that they would not testify at trial. Upon learning at this late date that each codefendant would testify to exculpate himself at the expense of inculpating the other, counsel for defendant Pearson submitted a motion for separate trials together with an affidavit containing a general averment of inconsistency.

While this Court adheres to the mandate in Smith which requires an affidavit defining the inconsistencies between the respective defenses, a strict application of that rule would result in a miscarriage of justice under the facts established on the record in this case.

In People v. McGilmer, 96 Mich.App. 433, 439, 292 N.W.2d 700 (1980), the Court, citing Dunlap, supra, held "that severance was not required where an allegation of antagonistic defenses was not supported either by citing previous antagonistic statements made by the codefendant or by making an offer of proof on the point". (Emphasis added.) Considering the late date at which counsel received notice that a separate trial might be needed (due to the fact neither defendant had earlier testified or indicated a willingness to testify), the citing in an affidavit of previous antagonistic statements made by a codefendant would have been a virtual impossibility. Therefore, the defendants should have been permitted the opportunity to make the offer of proof they requested.

A defendant is entitled to a trial separate and apart from a codefendant who it appears will testify to exculpate himself at the expense of incriminating the defendant seeking a separate trial. People v. Hurst, supra; People v. Webb, 82 Mich.App. 182, 266 N.W.2d 483 (1978), lv. den. 404 Mich. 809 (1978).

Therefore, based on the above described circumstances, the trial court abused its discretion in refusing the proffered testimony on behalf of both defendants. However, while the trial court abused its discretion in refusing the proffered testimony, defendants' convictions will not be disturbed on appeal in the absence of an affirmative showing that a joint trial did in fact prejudice the substantial rights of the defendants. People v. Bedford, 78 Mich.App. 696, 260 N.W.2d 864 (1977).

Each defendant testified at trial on his own behalf as summarized below.

Kenneth Duane Holley testified:

On July 28, 1980, defendant Holley was on his front porch talking with defendant Pearson and one Patrick Williams. Pearson suggested getting some money so they went to Pearson's house and got his car. Shortly after Pearson started to drive off, he pulled over and left the car for a few minutes, leaving Holley and Williams inside. When Pearson returned, he suggested a place they could rob and pulled out a gun and handed it to Williams, who in turn handed it to Holley, who placed it in his pants because he saw a police car. After deciding not to rob a 7-11 store at which they had stopped, they proceeded to a gas station where Pearson dropped off Holley and Williams. Pearson then proceeded around the block and parked. When Pearson arrived he asked why they had not committed the robbery at the station and then told Williams to stay with the car while he and Holley went inside. Pearson told Holley that once inside, if everything was alright, he would nod his head and Holley would then pull the gun. After entering the station Pearson asked for a fuse and then twice said: "Pull the gun." When Holley did not, Pearson pulled the gun from under Holley's shirt and committed the robbery. Pearson then ordered the attendant outside. When the three got outside, Holley ran to the car and lay in the back seat with Williams. When Pearson got in the car he told them to stay down or he would shoot them. They drove back to Pearson's father's home where they divided the money. Holley put the money in a truck and then the police arrived.

Barry Bernard Pearson testified:

Around 4:00 p.m. on July 28, 1980, Pearson met with Holley and Williams and they gambled for a while in the park. Holley wanted to borrow Pearson's car to go to the hospital and snatch a purse because it was nurses' payday. Pearson loaned his car to Williams for an hour and Williams and Holley left together in the car. Pearson went to his father's home since he had told Williams to return the car to that location. When Holley and Williams returned they gave Pearson $13 and his car keys. Shortly thereafter, someone kicked the door and Williams ran upstairs and said, "There is the police." Williams threw a .32-caliber gun into the room into which Holley had shut himself. Pearson denied driving to the gas station or being involved in the robbery.

A reading of each defendant's testimony reveals that the joint trial did prejudice the substantial rights of defendant Pearson. Defendant Pearson's defense was based on total noninvolvement in the armed robbery; he claimed he merely loaned his car to Williams and Holley with instructions to return it to his father's home at a later time. Holley's testimony, however, explicitly pointed the finger at Pearson. While Holley did not deny carrying the gun into the station with a knowledge that a robbery was contemplated, he claimed Pearson was the organizer and sole perpetrator of the crime in question, a defense clearly contrary and antagonistic to Pearson's defense.

A trial should not be a contest between the defendants in which the prosecution stands by and watches the defendants accuse each other. It is the prosecution which carries the burden of proof and this burden should not be taken lightly. People v. Millard, 53 Mich. 63, 18 N.W. 562 (1884). See also, Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895). While there was ample other testimony implicating defendant Pearson at trial, one of the station attendants, Stewart Brower, was unable to identify the defendants. The other attendant, Larry Reed, while identifying the defendants at trial, was initially unable to pick them out in police pictures.

After denial of Pearson's motion for separate trials, it does not matter that the determination of the effect, if any, of Holley's finger-pointing is conjectural; any set of circumstances sufficient to deprive a defendant of a fair trial if tried jointly requires severance. See Hurst, supra.

Defendant Pearson's testimony, however, does not have the same impact on defendant Holley's defense. The essence of Pearson's testimony was that he loaned Williams and Holley his car, but as to where they went or what they did, Pearson pointed no finger at Holley in regard to the crime in question. In fact, Pearson testified that Holley denied driving to the gas station or being involved in the robbery. While Pearson's testimony differs from Holley's, it is not antagonistic to Holley's defense of unwilling participation in the armed robbery. Pearson never even mentioned the armed robbery in his testimony, except to say that Holley denied its commission.

Merely because Holley pointed his finger at Pearson does not mean Pearson's testimony was antagonistic. Pearson's testimony in and of itself shed no light on Holley's involvement in the Sam's Standard Station armed robbery.

Where defenses of codefendants differ, but are not antagonistic, reversal is not mandated. People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976).

Defendant Holley next claims that the trial judge erred in denying his motion for a mistrial. The motion was based upon an allegedly nonresponsive answer elicited from a police officer during cross-examination. During cross-examination by defense counsel, the following colloquy occurred:

"Q. All right, sir. Now I wonder if you can recall any other things that he might have said other than what are right down here on this paper.

"A. Yes, sir.

"Q. Did he say things other than that were here on the paper that you didn't write down?

"A. Yes, sir. He did.

"Q. How did you choose what to put down on the paper and what not to put down?

"...