People v. Lewis, Docket Nos. 78-2959

• Decision Date: 06 May 1980
• Docket Number: Docket Nos. 78-2959,43838
• Citation: 97 Mich.App. 359,296 N.W.2d 22
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hughie V. LEWIS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. HOWARD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 22

296 N.W.2d 22

97 Mich.App. 359

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hughie V. LEWIS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. HOWARD, Defendant-Appellant.

Docket Nos. 78-2959, 43838.

Court of Appeals of Michigan.

May 6, 1980.

Released for Publication Sept. 24, 1980.

Ronald Weitzman, Detroit, for Lewis.

Arthur H. Landau, Detroit, for Howard.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Asst. Pros. Atty., Nels L. Olson, Asst. Pros. Atty., for plaintiffs-appellees.

Before KAUFMAN, P. J., and HOLBROOK and MAHER, JJ.

PER CURIAM.

The defendants together with a third codefendant named Bobby Mallory were tried jointly before a Detroit Recorder's Court jury and were convicted of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. Both Lewis and Howard were sentenced to life imprisonment and solitary confinement at hard labor. They now appeal as of right. Codefendant Mallory was convicted and appealed separately. ¹

At the trial, Minnie Cheatham, the mother of the decedent, testified that her son left her home on the evening of January 12, 1978, to go to his girlfriend's house. He had $15.40 in his pocket. Robert Parker testified that he looked out of his apartment window and saw the defendant Lewis and another codefendant named Mallory throw the decedent on the hood of a car and beat him. Parker went to telephone the police. When he returned to the window, the decedent was lying on the ground and the two men were jumping up and down on his head. When the police arrived, Parker supplied them with a description of the two men, and described their car as a green Buick with damage to the rear. Mr. Parker could only describe the third man who was the driver of the car as dark-complected. Officer Savinsky testified that he found decedent on the scene. One of his pockets had been ripped out, and he had no money.

Another police officer testified that he observed all three defendants about an hour after the alleged offense at a location approximately two blocks from the scene of the assault. They were standing near a green Buick which was parked at the curb and emitting smoke from the engine or radiator. There was old damage to the rear of the car and fresh damage to the front. The defendant Howard said it was his car, and claimed he had been involved in a hit and run accident. The three men were arrested as suspects in the reported assault. At the time the defendants were booked at the police station, Howard had $4, Lewis had $6 and Mallory had $5, for a total of $15, the same amount the decedent had on his person when he left his mother's house.

The prosecution introduced Mallory's shoes, which had blood of the same type as the decedent's, into evidence. The defendants did not take the stand at trial. Although the notice of alibi listed six witnesses, none of them were called to testify.

On appeal, defendants raise numerous allegations of error. We find that three of them merit discussion. The first issue raised involves a jury view of the scene of the crime. The alleged crime took place at 10:20 p. m. on a snowy night, and there was objection by defense counsel to a jury view during daylight on a spring day. However, the trial court allowed the jury view in order to establish how visible the crime was from the window of Mr. Parker's apartment. When defense counsel inquired if the defendants could go, the trial court said they could not because of "security problems". Later on in the trial, the following exchange occurred:

"We will see everybody here at 2:00 o'clock and the defendants can't go, but the lawyers can go out (to) the scene if they wish.

"MR. SLAMEKA: For the record, I would like to indicate that my client, Mr. Howard, would like to visit the scene.

"MR. POSNER: On behalf of Mr. Mallory I would like to indicate that also.

"MR. TOWNSEND: I join in that also.

"THE COURT: Well, we have a problem as to whether they are prejudiced if they go to the scene in handcuffs.

"MR. SLAMEKA: I was indicating my point of view. In fact, the Court has indicated on the record in front of the jury that they would take them back to the cell, so they know they are confined.

"THE COURT: We can't take them out, security wise."

Whether to allow the jury to view the scene of the crime is within the trial court's discretion. M.C.L. § 768.28; M.S.A. § 28.1051. People v. Dykes, 37 Mich.App. 555, 195 N.W.2d 14 (1972).

An accused has the right to be present at every stage of the trial where his substantial rights may be affected. People v. Medcoff, 344 Mich. 108, 116, 73 N.W.2d 537 (1955), People v. Ewing, 48 Mich.App. 657, 659, 211 N.W.2d 56 (1973). The right of a defendant to be present at his trial is a fundamental right which is guaranteed by M.C.L. § 768.3; M.S.A. § 28.1026 as part of the Fourteenth Amendment right to due process. People v. Montgomery, 64 Mich.App. 101, 235 N.W.2d 75 (1975).

In People v. Auerbach, 176 Mich. 23, 47-48, 141 N.W. 869, 877 (1913), the Supreme Court said:

" 'The court was not in error in permitting or directing a view of the premises by the jury; but we think it was the duty of the court, in the absence of the respondent, to have kept the jury while on their way to, and on their return from, and in their view of, the premises, under the supervision of an officer, so that no person might communicate with them or express any opinion, or give any directions in their hearing; for anything which took place which was in the nature of testimony certainly could not be given to the jury in the absence of the respondent.'

"We think that the weight of authority is to the effect that a respondent who is at liberty may expressly waive his right to accompany the jury, but that the jury in no case should take anything in the nature of evidence, in his absence. We also think that the respondent had the right to accompany the jury, had he desired to do so in this case. More than this, it is not necessary for us to decide, as the question is not likely to occur upon a new trial in view of what we have said."

In Auerbach, the respondent had been free on bail, and had not been prohibited from accompanying the jury. Therefore, the Court held that he had waived the right to be present at the jury view.

We find no Michigan cases where a conviction was reversed because of the trial court's refusal to allow defendant to accompany the jury to a view of the scene. In People v. Kasem, 230 Mich. 278, 282-283, 203 N.W. 135 (1925), and People v. Connor, 295 Mich. 1, 5-6, 294 N.W. 74 (1940), the defendant was free on bail and could have accompanied the jury had he chosen to do so, as was the case in Auerbach, supra. In People v. Raider, 256 Mich. 131, 137-138, 239 N.W. 387 (1931), there was an unresolved factual dispute about whether defendant was present, and defense counsel did not object before the verdict was given. In People v. Gauthier, 28 Mich.App. 318, 324, 184 N.W.2d 488 (1970), and in People v. Dykes, supra, the defendant was in custody, but made no request to accompany the jury to the scene.

We conclude that the trial court erred in denying the defendants' request to accompany the jury to the scene, based on People v. Auerbach, supra. Although the trial court expressed concern over the possible prejudicial effect of the jury seeing the defendants in handcuffs at the view, the use of handcuffs has been approved during a jury view in People v. Anderson, 29 Mich.App. 578, 582-583, 185 N.W.2d 624 (1971), aff'd, 389 Mich. 155, 205 N.W.2d 461 (1973).

We now reach the issue of whether the trial court's erroneous ruling concerning the defendants' presence at the view constitutes reversible error. In People v. Morgan, 400 Mich. 527, 535-536, 255 N.W.2d 603 (1977), the Court relied on the following language from Wade v. United States, 142 U.S.App.D.C. 356, 360, 441 F.2d 1046, 1050 (1971), in rejecting the automatic reversal rule involving defendant's absence from trial:

"It is possible that defendant's absence made no difference in the result reached. The standard by which to determine whether reversible error occurred (is) * * * whether there is 'any reasonable possibility of prejudice'."

Defense counsel were well aware of the differences in weather and lighting conditions between the jury view and the time of the actual crime, and pointed them out to the jury in closing argument. We, therefore, fail to perceive now defendants' presence at the jury view would have affected the result. On the authority of Morgan, supra, we find no "reasonable possibility" of prejudice, and decline to reverse on this basis.

The second issue raised by defendants involves testimony by relatives of the deceased that he was suffering from terminal brain cancer at the time of the assault and had lost the use of his right side. Prior to trial, defense counsel had attempted to suppress this evidence on the basis that it was more prejudicial than probative. The prosecutor argued that it was probative to show malice, since decedent was incapable of defending himself, and it showed why decedent's mother had placed $15 in his left pocket. The trial court ruled that this testimony was admissible. The prosecutor referred to the fact that Cheatham was "dying of a brain tumor" and that he did not have the use of his right arm, during the closing argument.

The admission or exclusion of evidence is within the trial court's discretion. People v. Cancino, 70 Mich.App. 90, 96, 245 N.W.2d 414 (1976), People v. Triplett, 68 Mich.App. 531, 536, 243 N.W.2d 665 (1976). That decision should not be reversed unless there was a clear abuse of discretion. People v. Howard, 391 Mich. 597, 603, 218 N.W.2d 20 (1974).

According to MRE 402, all relevant evidence is admissible. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence...