People v. Hurst

• Decision Date: 27 January 1976
• Docket Number: No. 16,16
• Citation: 238 N.W.2d 6,396 Mich. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norwood HURST, Defendant-Appellant. 396 Mich. 1, 238 N.W.2d 6, 82 A.L.R.3d 235
• Court: Michigan Supreme Court

Page 6

238 N.W.2d 6

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norwood HURST, Defendant-Appellant.

No. 16.

396 Mich. 1, 238 N.W.2d 6, 82 A.L.R.3d 235

Supreme Court of Michigan.

Jan. 27, 1976.

State Appellate Defender Office by Francis L. Zebot, Asst. Defender, Detroit, Michael Moran, Asst. Defender, Detroit, Mark Glazer, Law Student, for defendant-appellant.

William F. Delhey, Pros. Atty. by Lynwood E. Noah, Senior Asst. Pros. Atty., Ann Arbor, for plaintiff-appellee.

Before the Entire Bench except FITZGERALD, LINDEMER and RYAN, JJ.

LEVIN, Justice.

Norwood Hurst and Carolyn Kelker ¹ were jointly tried and convicted of manslaughter in the death of their 18-month-old daughter, Evelyn.

Hurst appealed ² contending the prosecutor misused a separate record and offer of proof to impeach Kelker's testimony with prior inconsistent statements and to threaten her with a perjury charge after he had stipulated, prior to joinder of the two informations for trial, not to use any statement of either defendant.

The Court of Appeals, stating that the prosecutor's stipulation could not be used by the defendants as a license to commit perjury, affirmed.

We conclude that the trial judge erred in ordering a joint trial and it is, therefore, unnecessary to decide whether the prosecutor's use of Keller's prior statements violated the stipulation. ³

Initially the judge ordered separate trials. Hurst's lawyer opposed the prosecutor's subsequent motion for a joint trial. He claimed the defenses of the defendants were antagonistic as 'both parties have been urged to testify against the other party' and cited Kellker's statements to the police exculpating herself and incriminating Hurst. The prosecutor sought a joint trial to save the expense of having an out-of-town witness brought in twice to testify and agreed not to use extrajudicial statements of either defendant. The motion was granted over the objection of Hurst's lawyer:

'(I)f you brought two adversaries into court into an adversary system, you know, you end up, it could easily end up being two adversaries, don't need the prosecutor, these two people either convict one or the other * * * two people charged with a crime and bring them into court and pit them against each other. You can forget the prosecutory system * * *'.

At the trial, Kelker's statements were in fact used to elicit from her testimony incriminating Hurst and exclupating herself.

We hold that in the circumstances Hurst was denied a fair trial. A defendant is entitled to a trial separate and apart from a codefendant who it appears may testify to exculpate himself and incriminate the defendant seeking a separate trial.

I

An autopsy revealed that the cause of Evelyn's death was the collapse of both lungs. The pathologist testified that in his opinion the tears in her lungs resulted from blows to the upper part of her body with a flat, narrow instrument such as a belt, strap or thin piece of wood. Hurst and Kelker, who had been alone with Evelyn the afternoon of her death, were charged with manslaughter.

Hurst testified that first he heard Evelyn cry and then Kelker screamed that Evelyn had fallen down the stairs. He said he did not hit Evelyn with a belt.

Kelker testified that she did not notice any marks on Evelyn when she dressed her. She admitted spanking Evelyn with a soft sandal for playing with disinfectant and said that after the spanking Evelyn had fallen down the stairs. She testified that Hurst did not strike Evelyn with a belt.

The pathologist conceded he could not rule out the possibility that the injuries were caused by a fall down the stairs, but it was his opinion that they were caused by an instrument like a belt.

After the defendants rested, the prosecutor asked to recall Kelker out of the presence of the jury to make a separate offer of proof for purposes of impeachment. He read Kelker's extrajudicial statements to the effect that Hurst had repeatedly whipped the baby with a belt. The prosecutor then asked the court to instruct Kelker on perjury. Kelker's and Hurst's lawyer moved for a mistrial. The motion was denied. Kelker was permitted, over Hurst's objection, to reopen her proofs.

Kelker then testified that Hurst had hit Evelyn 'a number of times' with a belt.

II

The general rule is that a defendant does not have a right to a separate trial. Joinder of defendants for trial is usually within the discretion of the court. ⁴ However, '(a) severance should be granted when the defenses of several defendants jointly indicted are antagonistic to each other'. 5 Wharton's Criminal Law and Procedure, § 1946; Anno: Right to severance where two or more persons are jointly accused, 70 A.L.R. 1171. ⁵

The commentary accompanying the American Bar Association Standards Relating to Joinder and Severance states: 'it has long been the view that defendants joined for trial should be granted a severance whenever their defenses are antagonistic to each other'. ⁶

'A separate trial will be ordered where the defenses of the accused are antagonistic * * *.' State v. Klein, 97 Conn. 321, 116 A. 596, 597 (1922).

'Where defenses are antagonistic and one defendant accuses the other, thus making it impossible for the defendants asking for a severance to have a fair trial, the severance should be granted.' People v. Meisenhelter, 381 Ill. 378, 45 N.E.2d 678, 684 (1942). ⁷

In People v. Braune, 363 Ill. 551, 2 N.W.2d 839, 842 (1936), two physicians were charged with manslaughter of a patient who died following an illegal abortion. Their motions for severance on the ground of antagonistic defenses were denied, and at trial each accused the other. In reversing and remanding for new trials the Illinois Supreme Court said:

'The trial was in many respects more of a contest between the defendants than between the people and the defendants. It produced a spectacle where the people frequently stood by and witnessed a combat in which the defendants attempted to destroy each other. Any set of circumstances which is sufficient to deprive a defendant of a fair trial if tried jointly with another is sufficient to require a separate trial.'

An Oklahoma Court similarly reversed the second-degree murder convictions of codefendants who offered inconsistent defenses:

'(T)he respective defenses of Grizzle and Murray were mutually antagonistic. Grizzle's testimony and confession were such that only Murray could have done the shooting, while Murray's testimony and confession were such that only Grizzle could have done it.

'Denial of a severance in the instant case resulted in pitting defendant against co-defendant. To try both together was, in effect, to try each on the confession of the other. * * *

'In the instant case, it is our opinion, that both defendants had no alternative except to take the stand and defend himself against the other's confession blaming the killing on each other.' Murray v. State, 528 P.2d 739--740 (Okl.Cr., 1974).

In Eder v. People, 179 Colo. 122, 498 P.2d 945, 946 (1972), a quantity of hashish was seized in an apartment shared by four persons, two of whom were charged and convicted of possession. 'It was the theory of each defendant that the hashish belonged not to him, but to the other defendant.' The defenses were found to be antagonistic and separate trials were ordered on remand.

A Florida appellate court held that a pretrial motion to server should have been granted where 'a conflict between the defendants' defenses was inherent in the case'. Thomas v. State, 297 So.2d 850, 852 (Fla.App., 1974). During search of an automobile owned by one defendant and driven by another, police found a bag of cocaine on the floor between the owner's legs. At the trial the defendant owner attempted to disavow control of the drug by 'putting the blame on defendant (driver)'.

The Louisiana Supreme Court reversed the denial of a pretrial motion for severance where one defendant accused the other. The codefendants were jointly charged with possession of marijuana with intent to distribute:

'The only evidence adduced at the hearing held on the motion was the testimony of counsel for Thibodeaux, who testified that the gravamen of his intended defense of Thibodeaux would be to establish that the contraband forming the basis of the prosecution, which was found in an apartment shared by the defendants, was the sole property of Sallettes and that Thibodeaux had no knowledge of its existence. * * *

'Thus, the thrust of Thibodeaux's defense is directly accusatory of Sallettes, requiring him, in effect, to stand trial before two accusers, the state and Thibodeaux. Under these circumstances, justice requires that the joint charge be severed to allow the separate trial of each defendant.' State v. Thibodeaux, 315 So.2d 769, 770--771 (La., 1975). ⁸

III

While neither Keller nor Hurst directly accused the other of causing Evelyn's death, the tendency of the testimony of each was to accuse the other of her death. ⁹ By insisting on a joint trial, the state succeeded in pitting one defendant against the other, each trying to save himself at the detriment of the other.

The pathologist testified that in his opinion the lung collapse was caused by a beating administered with an instrument like a belt. While the primary issue was whether either or both defendants had caused the death of the child, the expert testimony focused subsequent inquiry on who had wielded 'the belt'.

Kelker testified that she had spanked Evelyn with a soft shoe or sandal but denied that she had used a belt. She ultimately testified that Hurst hit Evelyn with a belt. Hurst denied he used a belt; the tendency of his testimony, therefore, was that if a belt had been used, Kelker, despite her denial, was the one who used it.

Hurst was aware of Kelker's extrajudicial statements incriminating him and correctly anticipated that if the two were tried jointly she would testify to exculpate herself and incriminate him. The judge erred in...