People v. Lewis

• Court: Court of Appeal of Michigan
• Writing for the Court: Before LESINSKI; HOLBROOK
• Citation: People v. Lewis, 149 N.W.2d 457, 6 Mich.App. 447 (Mich. App. 1967)
• Decision Date: 13 April 1967
• Docket Number: Docket No. 458,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Dale Arthur LEWIS and Peter James Kamen, Defendants, and Guy Arthur Reid, Defendant and Appellant

Page 457

149 N.W.2d 457

6 Mich.App. 447

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Dale Arthur LEWIS and Peter James Kamen, Defendants and Guy Arthur Reid, Defendant and Appellant.

Docket No. 458.

Court of Appeals of Michigan, Division No. 1.

April 13, 1967.

Rehearing Denied May 19, 1967.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Rheo C. Marchand, Asst. Pros. Atty., Wayne County, Detroit, for appellant.

Robert E. Childs, Detroit, for appellee.

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

HOLBROOK, Judge.

Defendant was tried before a jury and found guilty in December of 1964, of breaking and entering a place of business with intent to commit larceny. ¹ At the trial, evidence was offered to show that Reid and two other men, Lewis and Kamen, broke into a party store in Detroit and took some change from the cash register. Officer Kuziel placed Lewis in custody as Lewis left the rear of the store. At that time $5.78 in change, partly in rolls, was taken from Lewis, and the officer noticed that Lewis's hands were bleeding. There is uncontradicted evidence that Lewis was taken completely by surprise and immediately questioned in a police car near the scene.

Officer Hutsko testified in the presence of the jury that Lewis said, 'Guy Reid was the lookout man and had assisted him (Lewis) into the front door.' Defendant's attorney ² then objected because Reid was not present when Lewis made the statement. The court immediately instructed the jury as follows:

'Now, members of the jury, this is very important, if you don't mind my saying so. Members of the jury, it is a general rule of law, and it applies here, that whatever one person,--after the alleged events are over with, whatever one person may say in relation to other people, cannot be used against the other people. It cannot bind him or be used against him in any way whatsoever. It can only be used by you members of the jury as affecting the guilt or innocence of the person who said it and not anybody else at all.

'So in this particular,--at the present instance, whatever Mr. Lewis may have told this police officer, you may consider in relation to the guilt or innocence of Lewis, but you cannot in any way consider as to the guilt or innocence of Reid. Now, that is very important for you to remember that.'

When defendant Reid was arrested he was hiding in some bushes approximately thirty feet from the rear of the party store. When asked what he was doing there, he replied that he was afraid of the police and 'he wanted to stay away from the action.' Officer Hutsko testified before the jury that Reid called out to Lewis, 'Don't tell them nothing.'

Out of the presence of the jury the court clearly advised defense counsel that any one of them could cross-examine any officer testifying to any statement against interest and could introduce any witness or evidence he wished on the issue of whether the statement was 'freely and voluntarily made.' Defendant's trial attorney cross-examined detective Dunn concerning a statement made by defendant Reid. On recross-examination by defendant's attorney, detective Dunn testified that defendant Reid identified Kamen in a picture and admitted being with him at the bar on the night of his arrest.

Robert Brown and George Wheeler were present in the Chit Chat Bar on the evening of August 30, and early morning of August 31, 1964, and Brown testified that he saw Reid and Lewis together with another man in the bar. Brown and Wheeler left the Chit Chat Bar in Brown's car to get a hamburger and upon returning they discovered two officers searching Mr. Wheeler's car with Mr. Lewis in their custody. The officers said they thought the car belonged to Lewis. Upon being shown identification and registration papers the officers took Lewis to the squad car. The officers desired to complete the search of the area and asked Brown and Wheeler to stay with Reid, who had been found in the bushes near the rear of the party store. Brown testified he talked to Reid and a part of Brown's testimony is as follows:

'A. Yes, I was talking to him and I asked him if he knew Dale,--Mr. Lewis. He said 'No,' he didn't know him. I asked him what he was doing out there with him, being caught in the bushes. He said, 'I don't know. Well, maybe I seen the guy around.' I says, 'Well, you can't tell me that because I saw you in the bar talking with him and another fellow.' He said, 'Okay, so I was in the bar drinking with him. What does that make out of it?'

'Q. All right.

'A. Mr. Lewis yelled out of the back of the scout car and told him, says, 'Shut up, don't tell him anything.'

'Q. All right. Was there any further conversation then, or did he shut up?

'A. Well, he kept talking quite a bit. I think Mr. Wheeler asked him quite a few questions.

'Q. All right. Do you recall anything further in the conversation?

'A. Wheeler asked him if he wasn't involved why was he hiding in the bushes, and he says, 'Well, I was getting away from all the action.' Said, 'What action?' He said, 'The police officers.'

'Q. All right. Then what happened after that?

'A. After that the officers took our names, addresses, and they took the two men away in the car and we went home.'

Wheeler, testified before the jury that Lewis hollered from the squad car, 'don't tell them a damn thing.'

When defendant Kamen was placed on the witness stand, the court clearly advised defense trial counsel as to their rights to cross-examine in the absence of the jury; Reid's attorney did not take this opportunity to cross-examine Kamen. Conflicting testimony going to the voluntariness of Kamen's statement to detective Dunn was heard in the absence of the jury and the trial judge determined that Kamen's statement was voluntarily made. The case was tried before the rule set down in the case of People v. Walker (on rehearing 1965), 374 Mich. 331, 132 N.W.2d 87 governing the procedure of such cases. The court also submitted the question of the voluntariness of Kamen's statement to the jury.

Detective Dunn read before the jury the statement signed by defendant Kamen, which stated that Reid was involved in the crime. Defendant Reid's attorney made no objection whatever to this testimony. Before the testimony was received into evidence the court instructed the jury as follows:

'Now, there is also going to be read the statement of Mr. Kamen, which is allegedly a statement Kamen allegedly made, and the same goes for him. I am not saying they were made. You heard them claim they were made. Now, whatever you find Mr. Kamen said, if you further find it was freely and voluntarily made--and I will instruct you more fully about that later on--but if you do find it was freely and voluntarily by Mr. Kamen, then you can only consider it in relation to the guilt or innocence of Mr. Kamen and you cannot consider it in relation to the guilt or innocence of Mr. Reid.

'Now, I told you this before. I tell you it again. It is difficult, I understand that. You have to block your mind.'

After the People had rested, defendant Reid's trial attorney moved for a directed verdict of not guilty on the ground that there was no competent evidence connecting Reid with the crime. The motion was denied.

Thereafter the court repeated the substance of an earlier instruction:

'Now, also, I have instructed you before and I will instruct you again, that if you do find that an alleged confession or statement was made by either one of these defendants on trial, you may only consider that alleged confession or alleged statement against interest in relation to the guilt or innocence of the individual who made it and you cannot consider the alleged statement against interest or confession of someone else that was made other than the person who made it.'

Defendants Reid and Kamen were found guilty by the jury and sentenced to prison terms. Lewis was found guilty by the trial judge and sentenced to probation.

Defendant Reid, asks this Court to reverse and remand and raises three issues in this appeal. (1) Was it prejudicial error for the trial court to admit Lewis's statement into evidence, which implicated Reid in the crime? (2) Was it prejudicial error for the trial court to fail to delete all reference to defendant Reid in defendant Kamen's statement? (3) Was there sufficient evidence to support the jury finding of guilty in regard to defendant Reid?

We join and discuss the first 2 issues raised by defendant.

At trial, defendant's then attorney failed to make timely objection to the introduction of Lewis's statement, and ordinarily we would not consider this matter on appeal. However, with court prompting, Reid's trial attorney made his objection after the statement was before the jury. The explanation for the late objection was that he could not hear the witness. After the cautionary instruction by the court, no request was made to strike or for further instructions.

It is also important to note that defendant's attorney at trial made no objection to the reading before the jury of Kamen's signed statement to detective Dunn. The relaxed practice of relying on exceptions saved by counsel for codefendants in a joint trial is to be discouraged. But, perhaps, even more damaging to appellant's case is the fact that defendant's then attorney was given full opportunity to cross-examine the declarant Kamen himself; having failed to do so, appellant cannot now claim error.

Even if there had been no such confrontation, the law of this jurisdiction, insofar as reasonable search can determine, uniformly supports the admission into evidence before the jury of detective Dunn's testimony relating to Kamen's signed statement. People v. Louzon (1953), 338 Mich. 146, 154, 155, 61 N.W.2d 52; People v. Roxborough (1943), 307 Mich. 575, 585, 587, 12 N.W.2d 466. The court carefully instructed the jury that Kamen's statement...