People v. Jackson

• Citation: 200 N.W.2d 465,41 Mich.App. 530
• Decision Date: 27 June 1972
• Docket Number: No. 1,Docket No. 11776,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert JACKSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 465

200 N.W.2d 465

41 Mich.App. 530

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert JACKSON, Defendant-Appellant.

Docket No. 11776.

Court of Appeals of Michigan, Division No. 1.

June 27, 1972.

Released for Publication Sept. 26, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael R. Mueller, Asst. Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J, and McGREGOR and O'HARA, ^* JJ.

McGREGOR, Judge.

After a trial on a charge of first-degree murder, defendant was found guilty of second-degree murder, a violation of M.C.L.A. § 750.317; M.S.A. § 28.549, in Detroit's Recorder's Court, sitting without a jury. A timely claim of appeal as of right was filed.

Defendant, together with Lewis and Wilson, was driven to the vicinity of the home of Richard Holmes; defendant Jackson, Lewis and Wilson went to the Holmes residence, while two othr individuals, Gerald and David Blannon, remained in the car which was parked several houses away. Upon arriving at the holmes residence Wilson knocked on the door; defendant remained on the steps leading to the porch of the Holmes residence; Lewis and Wilson were located on the porch. After opening the door, Holmes told Wilson that he did not know Lewis and thereafter a short conversation about narcotics ensued between Holmes and Wilson. Wilson reached into his pocket or made a movement toward the door, and Holmes Jumped back into the hall. Lewis testified that Holmes fired the first shot from the hallway, although in fact, he saw no weapon in Holmes' possession. Lewis did see a flash in the hallway and heard a loud noise, but he could not say whether it came from defendant's shotgun or from Holmes' alleged pistol. Lewis testified that he saw the defendant remove a short-barreled shotgun from beneath his coat and fire three or four times; the next thing Lewis saw was Wilson lying on the porch.

A Detroit police officer assigned to ballistics testified that the murder weapon was a shotgun, which testimony was corroborated by a pathologist, who testified that the cause of death was a shotgun wound to the chest. Richard Holmes was not located and therefore did not testify at trial. The trial court ruled that the people had not made a good-faith attempt to locate Holmes and held that his testimony given at the preliminary examination was inadmissible at trial. Holmes had testified at the preliminary examination that he did not fire his weapon. Defendant did not object to the nonproduction of Holmes nor move for a continuance to allow his production as a witness for trial; in fact, the defendant protested a short adjournment to allow the People to attempt to secure Richard Holmes as a witness. Notwithstanding the foregoing, Officer Raymond Smith testified that he had travelled 900 to 1,000 miles, to Lake Providence, Louisiana, where he understood Holmes was living, in an attempt to contact him for trial. Subsequently, during trial, Holmes was contacted by telephone in Baton Rouge, Louisiana, at which time he stated that he did not wish to return to Detroit to testify.

Evidence in the trial court indicates that Wilson, Lewis and the defendant went to the Holmes residence to purchase narcotics. Lewis testified that there was a cordial atmosphere between the three individuals prior to their arrival at the Holmes residence. His testimony indicated that the defendant apparently intended to shoot Holmes, and instead, shot and killed Wilson. Both the prosecutor and defense counsel agreed that this was the posture of the case.

On appeal, defendant contends that the evidence at trial was insufficient to support defendant's conviction of second-degree murder, alleging that his claim of self-defense was not adequately considered. He also argues that he was prejudiced by the failure of the prosecution to produce Richard Holmes and their failure to analyze and introduce into evidence a shotgun allegedly found in Holmes' house. Finally, defendant contends that the trial judge did not adequately comply with GCR 1963, 517.1.

Defendant's strongest contention is that the evidence before the trial judge was not sufficient to overcome the defendant's claim of self-defense. An objection going to the weight of the evidence can be raised only by a motion for a new trial, and a denial is reviewed on appeal for abuse of discretion, but the trial judge's discretion is not invoked where no such motion is filed.

'Where an issue has not been preserved by timely objection, a new trial will not be ordered if the Court is convinced that it would not serve a useful purpose.' People v. Mattison, 26 Mich.App. 453, 457, 182 N.W.2d 604, 606 (1970).

Failure to move for a new trial in a criminal case does not prevent a defendant from pressing his claim on appeal that the evidence was legally insufficient to support a conviction. People v. Ragland, 34 Mich.App. 673, 192 N.W.2d 73 (1971). However, this Court will not reverse the findings of fact of a trial judge, sitting without a jury, unless his findings are clearly erroneous. This Court has recently expressed its reluctance to overturn the judgment of the trier of fact below, in People v. Stewart, 36 Mich.App. 93, 98--99, 193 N.W.2d 184, 186 (1971):

'When an appellate court is confronted with a challenge to the judgement of the trier of the facts, it will not easily be moved to overturn the judgment below. The trier of the facts, be it judge or jury, has had the opportunity to listen to the witnesses and observe their demeanor; he has had the opportunity to observe and evaluate the plethora of subjective and objective factors which together influence his opinion of the credibility of the witnesses. These factors do not survive in the stenographic transcription, we merely have a record of the words spoken at trial--an incomplete record at best. For this reason, an appellate court is reluctant to overturn the judgment of the trier of fact and substitute it judgment, which must necessarily be based on an inadequate description of the factors which lead the trier of fact to reach its decision. People v. Franczyk (1946), 315 Mich. 384, 24 N.W.2d 87; People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806.'

This Court went on further to state in the Stewart case:

'To determine whether or not the prosecution negated all theories consistent with innocence, we must look at the record in the light most favorable to the prosecution and determine whether sufficient evidence was adduced, which, if believed by the jury, Could support a finding of guilt beyond a reasonable doubt, (People v. Williams (1962), 368 Mich. 494, 118 N.W.2d 391; People v. Panknin, Supra; People v. Floyd (1968), 15 Mich.App. 284, 166 N.W.2d 506), not whether it could support a verdict of innocent.'

Thus, the facts brought out at the trial in the instant case must be analyzed within this framework to determine if there was reversible error.

The findings of fact of the trial court were as follows:

'I'm satisfied beyond a reasonable doubt that this defendant, Robert Jackson, at the time and place set forth in the information, came to the home of one Richard Holmes in company with the deceased, and at the time he came there he was armed with a sawed-off shotgun, which he carried under his coat. That they came to the Richard Holmes home for the purpose of making an unlawful purchase of narcotics. That the defendant Jackson approached the home and lingered on the steps while the deceased went up on the porch and rang the...