People v. Kramer

• Decision Date: 17 February 1981
• Docket Number: Docket No. 48099
• Citation: 303 N.W.2d 880,103 Mich.App. 747
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey KRAMER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 880

303 N.W.2d 880

103 Mich.App. 747

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey KRAMER, Defendant-Appellant.

Docket No. 48099.

Court of Appeals of Michigan.

Feb. 17, 1981.

Released for Publication April 15, 1981.

[103 Mich.App. 750] Frederick William Heath, Birmingham, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Appellate Chief Pros. Atty., Geoffrey H. Nickol, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and ALLEN and HORN, ^* JJ.

KELLY, Presiding Judge.

Defendant appeals as of right from his jury convictions for armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, kidnapping, contrary to M.C.L. § 750.349; M.S.A. § 218.581, and three counts of assault with intent to commit murder, contrary to M.C.L. § 750.83; M.S.A. § 28.278.

FACTS

At approximately 2:15 a. m. on April 3, 1978, two men wearing dark-colored ski masks and gloves and brandishing shotguns robbed the Red Oaks Bar in Wixom. Upon entering the bar, the two men ordered the five customers and bartender then present to lie on the floor. The men then removed and searched the wallet of each customer and purse of Marion Molk, the bartender. Molk later discovered that $70 was removed from her purse.

The proprietor of the Red Oaks, Nicholas Curcuru, came to the bar while the robbery was in progress, but was not noticed by the intruders. Curcuru left before being discovered and telephoned the police. Officers from the Wixom and Wolverine Lake Police Departments arrived at the scene while the robbery was still in progress. Sergeant Lawrence Beamish of the Wixom Police Department, the first officer to arrive, observed a male who was wearing a ski mask and holding "what appeared to be a sawed-off shotgun". Upon seeing Beamish, the man fired a shot which struck Beamish in the hand.

The two robbers then took Marion Molk as a hostage and left the bar in a "reddish-brown" pickup truck. The police gave chase, and several shots were exchanged. Deputy Andre Bowen and Deputy Douglas Eader of the Oakland County Sheriff Department set up a road block in an attempt to stop the pickup truck. As the truck approached their parked cruiser, it slowed down and swerved around the vehicle. Deputy Bowen received a shotgun blast to the left side of his face as the truck traveled around the cruiser. Deputy Eader was struck in the hand and arm by a shotgun pellet fired from the truck. Another road block was set up by the Novi Police Department at the intersection of 13 Mile Road and Haggerty Road. About four or five shots were fired in that area. The robbers finally stopped the pickup truck on Haggerty Road, about one-half mile south of 13 Mile, and escaped on foot.

A loaded 16-gauge sawed-off shotgun, three shotgun shells and an empty ammunition box were found near the truck's right bumper. Three shells were also found inside the cab of the pickup truck. Two of these were live 12-gauge shells and the third was a spent 12-gauge shell casing. John Ryan, an identification technician in the Oakland County Sheriff Department, processed the bar, truck, shotgun, and the shells for fingerprints, but none were obtained. Two spent shotgun shells were also found inside the Red Oaks.

On the morning of April 13, 1978, Debora Cox, defendant's former girlfriend, was taken to Detroit Metropolitan Airport in a blue van by Larry Kramer and the defendant. When they arrived at the airport, Larry Kramer accompanied Ms. Cox to the Southern Airlines ticket counter while the defendant remained in the van. Ms. Cox and Larry Kramer were surrounded by 10 to 15 police officers inside the terminal, and Larry Kramer was placed under arrest. Ms. Cox identified the truck driven by the robbers as that which both Jeffrey Kramer and Larry Kramer had driven to her home on the night of April 2, 1978, just hours before the robbery.

Following the arrest of Larry Kramer, Detective Sergeant Mark Goodrich of the Oakland County Sheriff Department noticed a blue van outside the terminal and recognized the defendant as its driver. Goodrich then directed the defendant to get out of the van, placed him under arrest and searched his person. When the van began rolling down the ramp outside the terminal, Goodrich entered the van and placed it in park. Goodrich then ran a computer check on the license plate and the VIN number to determine the van's ownership. Since the van was still on the ramp in front of the main terminal, Goodrich reentered the vehicle and drove it directly to the Wayne County Sheriff's Annex at Metropolitan Airport. When Goodrich opened the door on the driver's side of the vehicle, he observed a shotgun lying next to the driver's seat. After driving the van to the Sheriff's annex, Goodrich obtained a search warrant. In executing the search, Goodrich discovered a loaded 12-gauge sawed-off pump shotgun near the driver's seat. He also found three other shotguns, one or more rifles, several shotgun shells, and a quantity of marijuana in the rear of the van.

During trial, counsel for defendants Larry and Jeffrey Kramer moved to exclude from evidence the items that were found in the van on April 13, 1978. Defense counsel contended that the items were irrelevant to the case and unduly prejudicial to the defendants if placed in evidence. The prosecutor and defense counsel stipulated that the marijuana would not be introduced into evidence. The trial court decided to exclude the rifles from evidence and to admit the shotguns into evidence. Of the four shotguns found in the van, only the 12-gauge sawed-off pump shotgun found near the driver's seat was ballistically linked to the robbery. Subsequent motions for a mistrial, separate trials and separate juries were similarly denied.

I SEPARATE TRIALS

Defendant first alleges error in the trial court's decisions, twice denying motions for separate trials. Defendant argues that these denials forced him to forego reliance on an available alibi defense, because of codefendant Larry Kramer's refusal to assert a similar defense.

The decision on a motion for separate trials is one left to the discretion of the trial court. M.C.L. § 768.5; M.S.A. § 28.1028, People v. Wright (On Remand), 99 Mich.App. 801, 821, 298 N.W.2d 857 (1980). In People v. Hurst, 396 Mich. 1, 6-9, 238 N.W.2d 6 (1976), the Supreme Court held that separate trials are not a defendant's right, but are advisable where the defendants' separate defenses are antagonistic. To support the motion, a defendant must prove that a joint trial will infringe upon his "substantial rights". People v. Wright, supra, citing People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976). In the instant case, counsel for codefendant Larry Kramer alleged that a refusal of separate trials would place the defendants in an antagonistic position. However, neither attorney nor defendant provided support for this allegation at trial. Absent any factual predicate for an affirmative showing of prejudice, we are unable to conclude that the trial court abused its discretion in denying defendant's motion. People v. Wright, supra, People v. Schram, 378 Mich. 145, 142 N.W.2d 662 (1966).

II SEPARATE JURIES

The trial court's decision denying defendant's motion for separate juries is also assailed as reversible error. In People v. Brooks, 92 Mich.App. 393, 396-397, 285 N.W.2d 307 (1979), this Court approved of the dual jury procedure as an alternative means to avoid the problems arising from a joint trial of defendants whose defenses were antagonistic. The Brooks Court did not, however, articulate a standard to guide trial courts in deciding the validity of a motion for separate juries.

In United States v. Rowan, 518 F.2d 685, 690 (CA 6, 1975), the Court approved the use of multiple juries as a permissible response to a defendant's motion for severance of a joint trial under F.R.Crim.P. 14:

"Under Rule 14, Fed.R.Crim.P., the question of partial or total severance is within the sound discretion of the trial judge. United States v. Goble, 512 F.2d 458, 465-66 (6th Cir. 1975); United States v. Lee, 428 F.2d 917, 920 (6th Cir. 1970); United States v. Etheridge, 424 F.2d 951, 967 (6th Cir. 1970). Jackson's actions were intertwined with those of his co-defendants, and he cannot claim 'cumulation of prejudice by charging defendants with similar but unrelated offenses.' United States v. Reynolds, 489 F.2d 4, 6 (6th Cir. 1973), quoting Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 993 (1966). Indeed, what was effectively a joint trial to two juries was appropriate if the entire incident was to be fully explained. The fact that the District Court granted a form of severance for a purpose which disappeared when Jackson chose not to call Gaddie to the stand does not affect the principle that Jackson must show substantial prejudice to override the District Court's discretion in denying complete severance. In fact, the Gaddie-Rowan jury rebutted Jackson's claim of undue prejudice flowing inevitably from the photograph of Gaddie, since it acquitted Rowan of bank robbery. The District Court's discretion was not abused."

See also United States v. Sidman, 470 F.2d 1158 (CA 9, 1972). We are persuaded that the use of separate juries is not violative of the defendant's constitutional or statutory rights to trial by a jury.

The language employed by the Sixth Circuit above discloses that the use of separate juries is merely a partial form of severance and is to be evaluated under factors applicable to motions for separate trials. Further, the discretion accorded the Federal District Court to employ complete or partial severance is similar to the discretion available to our own trial court. Thus, we conclude that the standard of review governing the instant defendant's motion for separate juries is the same as that for his companion motion for separate trials. Applying this standard to the...