People v. Lewis

• Decision Date: 26 August 1970
• Docket Number: No. 1,Docket No. 8834,1
• Citation: 26 Mich.App. 290,182 N.W.2d 86
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie LEWIS, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 86

182 N.W.2d 86

26 Mich.App. 290

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie LEWIS, Jr., Defendant-Appellant.

Docket No. 8834.

Court of Appeals of Michigan, Division No. 1.

Aug. 26, 1970.

Released for Publication Jan. 5, 1971.

Robert F. Mitchell, Jr., and Thomas J. Olejnik, Detroit, for 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 appellee.

Before LESINSKI, C.J., and HOLBROOK and BURNS, JJ.

LESINSKI, Chief Judge.

Defendant Jimmie Lewis, Jr., was convicted, following a jury trial, of murder in the second degree (M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549)), and was sentenced to life in prison. Defendant's motion for new trial was denied and he mow brings this appeal.

The facts giving rise to this case occurred on December 24, 1965, in Skid's Bar in the city of Detroit. At approximately 8 p.m., decedent Leroy Turner and defendant made a wager regarding a game of pocket billiards, known as 'eight ball', then in progress. A dispute broke out over who had won the bet; the dispute ended when defendant shot and killed decedent. It was defendant's position below that he shot in self-defense.

On appeal defendant raises three issues: first, whether sufficient evidence was adduced at trial to sustain his conviction second, whether the lower court erred in denying his motion for new trial based on newly discovered evidence; and third, whether reversible error was committed by the trial court in its instructions to the jury.

Our review of the record satisfies us that sufficient evidence was presented below which, if believed, would justify a jury conviction. Eight Res gestae witnesses were produced by the prosecutor at trial. Although the testimony of the witnesses varied as to a few details and several of the witnesses did not observe the entire series of events, the substance of the testimony was consistent and related the following.

Defendant made a $2 wager with Turner over the outcome of the pool game being played between Turner's brother and another other man. An altercation ensued over who had won the bet. Turner stood up from the barstool where he had been sitting, 'as if * * * he was going toward' defendant. Defendant took several steps backwards away from Turner and said 'Well, I'll pay you off, just a minute.' Defendant then reached in his pocket and pulled out a gun from his inside coat pocket. Turner then began backing away from defendant, who started to cock the pistol. After a moment of difficulty in getting the gun to work, defendant fired twice at Turner, killing him.

Based on the record, sufficient evidence was adduced at trial which, if believed, justified a verdict of guilty. People v. Stevens (1965), 1 Mich.App. 673, 137 N.W.2d 735; People v. White (1965), 2 Mich.App. 104, 138 N.W.2d 492; People v. Panknin (1966), 4 Mich.App. 19, 143 N.W.2d 806.

Defendant's motion for new trial below was based, Inter alia, on allegedly newly-discovered evidence which consisted of the testimony of Maurice Willingham. The following signed affidavit was attached to defendant's motion:

'Maurice Willingham, of Detroit, Wayne County, Michigan, being first duly sworn, deposes and says, that he makes this affidavit in support of the attached application for leave to file delayed motion for new trial, and should said motion be granted, he would testify, in substance, as follows:

'1. That I was present in Skid's Bar on the evening of December 24, 1965.

'2. That some commotion came about and I saw the defendant headed toward the door.

'3. That the other fellow (victim) was behind me, whom I observed was going after the defendant with a knife in his hand.

'4. Defendant was having difficulty reaching the door because patrons were entering. It was at this point that defendant turned around and fired two (2) shots at victim.

'5. That deponent had no trial notice, nor was he subpoenaed to defendant's trial; that he is not related to either the victim or defendant.'

In People v. LoPresto (1967), 9 Mich.App. 318, 324, 156 N.W.2d 586, 590, we noted:

'Tests for measuring the sufficiency of newly-discovered evidence were recently stated in the cases of People v. Clark (1961), 363 Mich. 643, 110 N.W.2d 638, and People v. Ake (1961), 362 Mich. 134, 106 N.W.2d 800. These cases hold that for a new trial four requirements must be met. First, the substance of the evidence, and not merely its materiality, must have been discovered after the trial. Second, it must be shown that the new evidence is not merely cumulative. Third, it must be shown that the moving party could not with reasonable diligence have produced the evidence in question at trial. Fourth, the newly discovered evidence must be such as to render probable a different result on retrial.'

Further, it is well settled that the granting of a new trial on the grounds of newly discovered evidence is directed to the sound discretion of the trial court. People v. Pizzino (1945), 313 Mich. 97, 20 N.W.2d 824; People v. Serra (1942), 301 Mich. 124, 3 N.W.2d 35; People v. Mullane (1931), 256 Mich. 54, 239 N.W. 282; People v. Thomas (1969), 17 Mich.App. 740, 170 N.W.2d 286.

As we deem the alleged newly-discovered evidence not to be 'such as to render probable a different result on retrial' we pass over the other tests set forth in LoPresto. There was no evidence below indicating that defendant was headed for the door and the only witness specifically questioned on the subject stated that Turner did not have a knife. The affidavit thus presents a substantially different set of facts than those brought out at trial.

We concede that upon retrial the evaluation of the different versions of the events would be left to the jury as a question of credibility. Yet, to justify a new trial a different result must be 'probable.' In light of the substantive similarity of the testimony of the eight witnesses at the first trial, we are unable to say that one new witness telling a substantially different story renders a different verdict probable. The trial judge did not abuse...