People v. Jelks
| Decision Date | 18 May 1971 |
| Docket Number | No. 1,Docket No. 8318,1 |
| Citation | 190 N.W.2d 291,33 Mich.App. 425 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Lee JELKS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
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., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee. Before V. J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.
The victim of the criminal offenses of which the defendant, John Lee Jelks, was convicted testified that her automobile became inoperable early in the morning of April 13, 1969, while she was driving on an expressway. She said that Jelks approached and offered to assist her, and, when her automobile could not be restarted, offered to drive her home. She claimed that he drove into alleys near her home, threatened her with a gun, and robbed and raped her, and required her to commit an act of gross indecency.
She identified Jelks' photograph from reels containing a large number of photographs and two weeks later picked him out of a lineup composed of five men.
She testified that when the criminal acts were committed there was a card hanging in the back window of Jelks' automobile. A police officer testified that the victim had mentioned the card before Jelks was apprehended. Both the officer and the victim testified that the card described was in the back window of Jelks' automobile when they viewed the automobile after Jelks was in custody.
Four alibi witnesses testified that Jelks was with them at the time the crimes were committed. The judge, who sat without a jury, in stating his findings said that he did not believe the alibi witnesses and indicated that he believed the victim's testimony. He said that he was satisfied that the lineup was fair. In conclusion he expressed his satisfaction beyond a resonable doubt of Jelk's guilt of all three charged offenses and convicted him of armed robbery, 1 rape 2, and committing an act of gross indecency with a woman. 3
Jelks filed a motion for a new trial on the ground that the automobile identified by the victim as the one used by him when the crime were committed was in fact disabled and and at a collision repair shop from April 1, 1969, continuously to and through April 13, 1969, the date on which the crimes were committed. In support of his motion he submitted a post-trial affidavit of a person who swore that he was responsible for incoming cars at the repair shop, that on April 1, 1969, the defendant brought in his automobile for a repair estimate and that the estimate was $450. The affidavit concludes with the statement that the automobile had remained at the repair shop since April 1, 1969, and was still there on the date of the affidavit. The judge denied the new trial motion.
At the trial the victim testified that while she was riding in Jelks' automobile it was 'smoking' and that he told her it was not operating properly and explained that he had just taken it out of the 'shop.'
When Jelks testified, he said that he had received a key from the owner of the shop 'to go and open the car and work.' He also claimed that he had a 'receipt' from the repair shop which was in the hands of an attorney who was representing him in civil litigation arising out of an automobile accident that occurred on April 1, 1969. He said he showed the receipt to a police officer.
The officer testified that Jelks said he took the automobile to the repair shop on April 1, 1969, that he did not exhibit a receipt, and that persons employed at the repair shop were unable to recall the exact date on which the automobile was brought in but thought it was between April 11 and April 18.
A photocopy of a receipt or estimate, dated April 1, 1969, issued by the repair shop is attached to Jelks' brief on appeal. The estimated cost of repair is $450 and payment of $20 is acknowledged, leaving a balance of $430. The document does not purport to show whether Jelks' automobile was immobile between April 1 and April 13 or the date on which it was actually delivered to the repair shop.
Jelks' testimony at the trial that he had been trying to obtain the return of the receipt does not compel the conclusion that he exerted reasonable diligence to obtain it and was unable to produce it at the trial. Nor do we think, in the light of his testimony that he had a key to the repair shop and, thus, access to the automobile, and the victim's testimony that the automobile was smoking and that Jelks had told her that he had just taken it from the shop, that the alleged newly-discovered evidence is 'such as to render a different result probable on a retrial.' 4 Accordingly, we do not have an adequate basis for concluding that the judge abused his discretion in denying Jelks' motion for a new trial.
Jelks' alternative contention that he was denied the effective assistance of counsel is largely predicated on his trial lawyer's failure to obtain and produce the receipt. But the record does not show that the existence of the receipt was brought to the attention of his trial lawyer before the trial.
Jelks' motion for a new trial was based entirely on his claim that he could not have committed the crime because the automobile identified by the victim was at the repair shop at the time the crime was committed. He did not, in his new trial motion, claim that his trial lawyer failed diligently and conscientiously to prepare for trial, nor did he ask for a hearing on a claim that he was denied the effective assistance of counsel. We could not properly find, based solely on Jelks' assertions on appeal, that his trial lawyer was lacking in diligence in failing to produce or to seek production of the receipt.
Jelks' trial lawyer did not call as witnesses any of the garage personnel. His reasons for failing to do so do not appear on this record. Perhaps, as defendant alleges, the lawyer had not properly prepared his case and did not know that Jelks' car might have been delivered to the garage before the date the crime was committed. On the other hand, he might have known of Jelks' possible defense but rejected it because, after investigation, he concluded that it was insubstantial or would backfire.
The people did not endorse the garage personnel even though there is authority which tends to support the view that they are Res gestae witnesses; 5 but the failure of Jelks' trial lawyer to object...
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