People v. Knight

• Decision Date: 06 May 1983
• Docket Number: Docket No. 54393
• Citation: 122 Mich.App. 584,333 N.W.2d 94
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chare Anthony KNIGHT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 94

333 N.W.2d 94

122 Mich.App. 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chare Anthony KNIGHT, Defendant-Appellant.

Docket No. 54393.

Court of Appeals of Michigan.

Submitted Oct. 8, 1982.

Decided Jan. 20, 1983.

Released for Publication May 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief Appellate Asst. Pros. Atty., A. George Best, II, Asst. Pros. Atty., for the People.

Richard J. Card, Birmingham, for defendant-appellant on appeal.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.

PER CURIAM.

We agree with Chief Judge Danhof's analysis of all issues in this case except one. We do not believe that the trial court erred when admitting evidence of the defendant's prior convictions. The "crimes of violence" standard used by the trial court is wrong. It appears nowhere in case law or the rules of evidence. But the judge did not base his decision solely on this standard. The record shows that the judge recognized his discretion and recognized both the prejudicial and probative elements in admitting evidence of similar crimes. People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). By announcing that these were crimes of violence, the trial judge announced one wrong reason for admitting evidence of the convictions, but this does not detract from the fact that he properly applied the Crawford factors in reaching his decision. Thus, the decision was not erroneous, despite the surplusage.

DANHOF, Chief Judge (concurring).

Defendant was convicted of second-degree murder, in violation of M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and conspiracy to commit murder in the second degree, in violation of M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, following a jury trial. He was acquitted on a charge of possession of a firearm during the commission of a felony. M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to serve two concurrent terms of from 18 to 25 years in prison. Defendant appeals his convictions as of right.

Defendant's convictions arose from the shooting death of Rothbe Elwood Perry. Two codefendants, Robert Jackson and Mildred Perry, the victim's wife, were tried in a separate proceeding. See People v. Jackson, 114 Mich.App. 649, 319 N.W.2d 613 (1982); People v. Perry, 115 Mich.App. 533, 321 N.W.2d 719 (1982). Some of the issues raised are identical to those raised in Jackson, supra; Perry, supra. With respect to those issues, we reach the same result. Therefore, defendant's conviction for conspiracy to commit second-degree murder is vacated.

Of the remaining issues raised by defendant, none require reversal.

Defendant first complains that his conviction for second-degree murder was inconsistent with his acquittal on the felony-firearm charge. Since the trial in this case took place prior to the Supreme Court's decision in People v. Vaughn, 409 Mich. 463, 295 N.W.2d 354 (1980), we review the verdict to determine whether it can be explained on some rational basis. People v. Smith, 108 Mich.App. 466, 469, 310 N.W.2d 425 (1981).

Unlike the situation presented in Vaughn, supra, defendant in the present case was charged as an aider and abettor. M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. In order to convict defendant as an aider and abettor in the murder of Mr. Perry, it was unnecessary to establish that he assisted his accomplices in obtaining or retaining possession of the firearm used to commit the felony. Compare People v. Palmer, 392 Mich. 370, 378-379, 220 N.W.2d 393 (1974), with People v. Johnson, 411 Mich. 50, 54, 303 N.W.2d 442 (1981). Our examination of the record discloses that sufficient evidence, evidence unrelated to the possession of the firearm by defendant's accomplices, was established to support defendant's conviction as an aider and abettor in the commission of Mr. Perry's murder. Therefore, we find nothing inconsistent about these two verdicts.

Defendant next complains that the police lacked probable cause to arrest him and that, therefore, his arrest was unlawful and the statements he made following his arrest should have been suppressed. In People v. Potter, 115 Mich.App. 125, 134-135, 320 N.W.2d 313 (1982), the Court stated the following:

"In reviewing a claim that a police officer lacked probable cause to arrest, the reviewing court must determine whether facts available to the officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. Each case must be analyzed in light of the particular facts confronting the arresting officer. People v Harper, 365 Mich 494, 501-502; 113 NW2d 808 (1962), People v Ward, 226 Mich 45; 196 NW 971 (1924)."

At the Walker ¹ hearing, a police officer testified concerning the facts known to the police at the time defendant was arrested. From that testimony, it is clear that the police had an abundance of evidence from which to conclude that Mrs. Perry had hired at least one black male to kill her husband. In addition, we are convinced that probable cause existed to believe that defendant was that man. Just prior to the shooting, a neighbor heard a woman talking to a man in front of the Perry home. Furthermore, there was evidence that a man named Charlie called Mrs. Perry on the day before the killing. On the day of the killing, a man, who also identified himself as Charlie, called Mrs. Perry's niece and asked for Mrs. Perry. He again called on several occasions following the killing demanding money and threatening violence. The caller left a phone number which was registered in the name of defendant's wife. Defendant was living with his wife at the time of the killing. Furthermore, defendant was known by the name of Charles or Charlie. When Mrs. Perry's niece questioned Mrs. Perry about Charlie, Mrs. Perry told her that Charlie wanted lots of money and instructed her never to repeat that name to the police.

From the foregoing, we conclude that there were sufficient facts known to the police to justify defendant's arrest.

Defendant next complains that the trial court erred in ruling that his confession was voluntarily made. The evidence on this issue was conflicting and resolution thereof depended solely on a determination concerning the credibility of the witnesses who testified at the hearing. Therefore, we defer to the trial court's findings on this issue. People v. Price, 112 Mich.App. 791, 797-798, 317 N.W.2d 249 (1982).

Defendant contends that reversal is required because the prosecutor called a witness who he knew was going to give false testimony. We disagree. The prosecutor called a witness, defendant's niece, who testified at the preliminary examination that defendant told her after the shooting that he drove the getaway car. At trial, the prosecutor first questioned the witness about that testimony. He then brought out the fact that she recanted that testimony one week after the preliminary examination. She claimed that she testified falsely at the preliminary examination because she wanted to get even with defendant for upsetting her mother. In our opinion, the situation involved here is not akin to the situation involved in People v. Thornton, 80 Mich.App. 746, 750, 265 N.W.2d 35 (1978). In Thornton, supra, the prosecutor knew that the testimony being presented was false. Here, although the witness recanted her testimony, the prosecutor could not be sure which version was accurate. Furthermore, since he did not offer either version as the correct version but, rather, presented both to the jury, it is clear that he did not knowingly present false testimony.

Defendant next claims that the prosecutor's questioning of him concerning a plea-bargaining agreement constituted reversible error. We find this issue to be without merit. The evidence was offered to rebut defendant's testimony on direct examination that the prosecutor offered to dismiss the charges if defendant agreed to testify against his coparticipants. The prosecutor's questioning of defendant was designed to prove that the agreement was only to reduce the charge if defendant agreed to testify. It is not clear whether MRE 410 permits a criminal defendant to introduce evidence concerning a plea-bargaining agreement. See People v. Strickland, 78 Mich.App. 40, 54, 259 N.W.2d 232 (1977). However, since defendant injected the issue, he may not now base a claim of reversible error on the prosecutor's further questioning of him about the subject. See e.g., People v. Jansson, 116 Mich.App. 674, 693, 323 N.W.2d 508, 517 (1982).

We also reject defendant's claim that the prosecutor should have been disqualified to try the case because of his participation in unsuccessful plea bargaining negotiations. See People v. Lemble, 103 Mich.App. 220, 303 N.W.2d 191 (1981).

Defendant claims that reversal is required because the trial court refused to suppress a tape recording obtained without a warrant of a police-initiated telephone call to defendant from a woman with whom Mrs. Perry was staying after the murder. People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975).

A split of opinion exists among members of this Court concerning whether the rule announced in Beavers, supra, as it relates to participant monitoring should be expanded to include the electronic recording of a private conversation where one of the participants consents to the recording. Compare People v. Artuso, 100 Mich.App. 396, 298 N.W.2d 746 (1980); People v. Atkins, 96 Mich.App. 672, 293 N.W.2d 671 (1980); People...