People v. Knapp
| Decision Date | 22 June 1971 |
| Docket Number | No. 3,Docket No. 9504,3 |
| Citation | 34 Mich.App. 325,191 N.W.2d 155 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James G. KNAPP, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Dirk C. Hoffius, Varnum, Riddering, Wierengo & Christenson, Grand Rapids, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and BRONSON and O'HARA, * JJ.
The defendant, James G. Knapp, was convicted in a Circuit Court jury trial of felonious assault, 1 held March 11 and 12, 1969. The events which lead to defendant's conviction occurred on December 6, 1969. They involved two groups of youths and two confrontations between these two groups. The first group was composed of Jack Everett, Bob Grover, Bill Grover, Jim Grover, Steve Grover, Dan Shimshack, and Jeff Pierce. They were guests of Frank and Nancy Grover who lived in the upstairs apartment at 901 Butterworth, Grand Rapids, where the confrontations took place. At about 9 p.m., Jack Everett, with Bob and Bill Grover, left the apartment for the purpose of taking Bill Grover home. As they entered Everett's automobile, about 10 to 14 youths on the sidewalk started to call them names. One of them hit Bill Grover in the back. Help was summoned of those remaining upstairs and four of the group came to help. The other youths ran away. The members of the first group returned upstairs and shortly, some of the group that had run away came back and one had a gun. The police were called by one of the Grovers. When the police arrived, they questioned all present at the Grovers' and others in the neighborhood and then left. At about midnight there was a noise at the door leading into the apartment, and some of the group went to the door and saw a boy running down the stairs. There was further commotion on the porch and Jack Everett together with Jeff Pierce, Bill Grover, and Steve Grover, went downstairs. Frank Grover started to leave and then returned to call the police. The outside door had been opened and there were youths outside cursing and telling those inside to come out. These youths were not invited guests of the Grovers. They were the second group and included James G. Knapp, the defendant, Jerald Harig, Rick Bowhuis, Dan Brown, Bill Battjes, and other unnamed individuals. These youths, with the exception of Jerald Harig belonged to a club called 'The Violators'. The four youths who were inside the house and had come downstairs attempted to close the outside door. A member of the second group had a club and swung it at one of the members of the first group. A snow shovel was thrown from the outside at the youths in the stairway, and both Pierce and Everett ducked as it passed by them. Then a broomstick was thrown from the outside and Everett moved out of the way and it struck Pierce in the eye. Pierce fell to the floor from the blow and Steve Grover carried him upstairs. Other testimony indicated that a chair, a club, and a hammer were thrown by members of the second group into the stairway. The first group was able to close the door, but members of the second group broke the three glass panes in the door with a hammer.
Jack Everett and Steve Grover positively identified defendant Knapp in open Court as the one who threw the broomstick.
Dr. William Zimmerman, M.D., an ophthalmologist, testified that Jeff Pierce sustained severe injuries to his right eye. These injuries included lacerations on both the upper and lower eyelid; lacerations involving the lacrimal canal which is the tear duct system for drainage of tears from the eye; a fracture of one of the bones at the floor of the orbit; and edema, or swelling of the retina. Two operations, performed by four surgeons, were only partly successful. Pierce has suffered serious, permanent damage to his eye and to his eyesight.
The members of the second group who testified told a different version of the confrontations. Jerald Harig testified that around midnight he and the defendant, James Knapp, were returning from Rudy's store after purchasing some soft drinks. They cut through an alley and across the grass, and as they did, some youths began to holler at them. They in turn hollered back, and as a result several of these youths started running down the stairs after them. They then picked up some stuff and began throwing it at Harig and Knapp. Consequently, Harig picked up some of the stuff, including the broom, and threw it back. Then he ran, and he said he didn't know whether the broom hit anyone. On cross-examination, Harig admitted that he had been in trouble with the juvenile authorities.
Dan Brown testified that at midnight he had been with Bill Battjes and had seen Jerald Harig and James Knapp. He said he had been in a yard near 901 Butterworth at the time. He and Bill had been looking for Knapp and Harig and saw them cutting through a yard while some others were shouting at them to get out of the yard. Brown then saw a broom thrown out at them and Jerald picked it up and threw it back, whereupon everyone ran.
This testimony was corroborated by Bill Battjes who had been walking with Brown at the time. Rick Bowhuis testified that the same night that these events took place, Jerald Harig admitted to throwing the broom.
Defendant raises three issues on appeal which we restate as follows:
(1) Was reversible error committed when the prosecuting attorney questioned Jerald Harig about a specific arrest after he had admitted having previously been in trouble with juvenile authorities?
(2) Was there sufficient evidence produced at the trial to support the verdict of guilty beyond a reasonable doubt that defendant James G. Knapp committed an assault with a dangerous weapon?
(3) Was the broomstick, as used, under the facts in this case, a dangerous weapon within the provisions of M.C.L.A. § 750.82 (Stat.Ann.1962 Rev. § 28.277)?
The pertinent cross-examination of Jerald Harig to which defendant claims reversible error is as follows:
'Q. You ever been in trouble with the juvenile authorities before?
'A. Yes.
'Q. How many times would you say you have been in trouble with the juvenile authorities?
'Q. (Mr. Zerial): I am just asking how many times-- 'MR. DOHERTY: I don't think it is relevant. If he has admitted he has been in trouble it is not relevant to how many times or what the trouble was.
'THE COURT: Objection is sustained.
Harig was a Res gestae witness whom the people were required to call, but he was also a 'key witness' for the defense when he testified it was he and not Knapp that threw the broomstick. Under the circumstances, it was permissible for the prosecutor to impeach his credibility. M.C.L.A. § 767.40a (Stat.Ann.1954 Rev. § 28.980(1)); People v. Pope (1967), 8 Mich.App. 231, 154 N.W.2d 537; People v. Danles (1969), 15 Mich.App. 510, 166 N.W.2d 620.
Our Supreme Court has ruled in the case of People v. Smallwood (1943), 306 Mich. 49, 10 N.W.2d 303, that M.C.L.A. § 712A.23 (Stat.Ann.1962 Rev. § 27.3178(598.23)) does not render improper a question put to a witness as bearing on his credibility as to whether he had been in trouble with the juvenile authorities.
The main thrust of defendant's claim of error pertains to the question of the prosecuting attorney:
This question was objected to by defense counsel whereupon the prosecutor withdrew the question and the trial judge sustained the objection and instructed the jury to disregard the question. To support the claim of error, defendant cites the case of People v. Brocato (1969), 17 Mich.App. 277, 169 N.W.2d 483. Brocato ruled that a defendant testifying at his own trial may not be asked if he has been arrested or charged with a crime where the arrest or charge has not resulted in a conviction and where the only purpose of the question is to impeach the defendant's credibility as a witness. However, where the issue involves a witness instead of a defendant in a criminal trial, the rule is stated in Brocato on p. 302, on p. 495 of 169 N.W.2d as follows:
Under the facts in the present case, where the question was withdrawn before an answer was given and the trial judge instructed the jury to disregard the question, we conclude no reversible error occurred. People v. Droste (1910), 160 Mich. 66, 125 N.W. 87; People v. Page (1917), 198 Mich. 524, 165 N.W. 755; People v. Williams (1922), 218 Mich. 436, 188 N.W. 403; People v. Richardson (1927), 239 Mich. 695, 214 N.W. 965; People v. Fleish (1948), 321 Mich. 443, 32 N.W.2d 700; People v. Farley (1968), 13 Mich.App. 132, 163 N.W.2d 692; and People v. Clairmont (1968), 13 Mich.App. 577, 164 N.W.2d 676.
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