People v. Logue

• Decision Date: 18 February 1971
• Docket Number: No. 3,Docket No. 8758,3
• Citation: 30 Mich.App. 669,186 N.W.2d 863
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jim Daniel LOGUE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 863

186 N.W.2d 863

30 Mich.App. 669

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jim Daniel LOGUE, Defendant-Appellant.

Docket No. 8758.

Court of Appeals of Michigan, Division No. 3.

Feb. 18, 1971.

Released for Publication May 21, 1971.

Leave to Appeal Denied July 5, 1971.

Zoe E. Shaffer, Small & Shaffer, Benton Harbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and McGREGOR and T. M. BURNS, JJ.

HOLBROOK, Presiding Judge.

The defendant was convicted by a jury of breaking and entering a building with intent to commit a larceny therein. M.C.L.A. § 750.110 (Stat.Ann.1970 Cum.Supp. § 28.305). Trial took place on November 20 and 21, 1968.

The defendant had timely asserted the defense of alibi. At the commencement of the trial the defense moved for a continuance due to the fact that three of the defendant's alibi witnesses were not available. The reason presented for the unavailability was that they were deer hunting. Defense counsel admitted these witnesses had not been subpoenaed. The trial judge denied the motion, basing his denial on the fact that he had a crowded docket, that the defendant had had adequate notice of the trial, and that the failure of the witnesses to be present was the result of the defense counsel's own oversight.

During the second day of trial, a conference was held between counsel and the trial judge out of the presence of the jury. At the conference it was determined that of the eight witnesses listed, only two were unavailable at time of trial and that one of the three witnesses supposedly deer hunting was actually incarcerated in the Berrien County Jail. At the same conference the trial judge brought to the attention of both counsel the fact that one of the defense witnesses, John Walters, had been arrested in the hall outside of the courtroom by a plainclothes sheriff's deputy. The judge asked both attorneys whether they wanted him to interrogate the jury with respect to their knowledge of the arrest and whether they would be prejudiced by any knowledge, they had of the arrest of witness Walters. The trial judge also presented the alternative of not mentioning the incident to the jury at all. The defendant, with the advice of his counsel, decided not to have the incident mentioned to the jury at all.

Upon conclusion of the proofs and after an hour's deliberation, the jury found the defendant guilty as charged. Present counsel was then appointed for appellate review, and a motion for new trial was filed. That motion was denied by the trial court. Defendant then appealed to this Court and has raised four issues to be considered.

I

Did the trial judge abuse his discretion in refusing to grant the continuance requested by the defendant at the outset of trial?

Under M.C.L.A. § 768.2 (Stat.Ann.1954 Rev. § 28.1025), the granting or denial of a continuance in a criminal case is a matter of discretion with the trial court. The case of People v. O'Leary (1967), 6 Mich.App. 115, 148 N.W.2d 516, reaffirms the discretionary aspect of granting or denying a continuance and adds that prejudice to the defendant must be apparent or proven to have been at least probable to show an abuse of discretion of a trial court in denying a motion for continuance in a criminal case. It is clear from the record that the defendant was not prejudiced by the denial of the grant of continuance by the trial court. Only two of the defendant's eight alibi witnesses were not available for trial. In the motion for a new trial of defendant, no affidavits of these two witnesses were proffered to indicate that they were actual alibi witnesses or as to what they would have testified to had they been called. The record indicates that the trial judge had good reason for not granting the continuance, and there was no abuse of discretion.

II

Did the trial judge err in not determining the prejudicial effect, if any, of the arrest of one of the defense witnesses in the hall outside the courtroom or in failing to declare a mistrial?

The core of the defendant's argument with respect to this issue is that the trial judge improperly handled the incident with respect to the arrest of one of the defendant's witnesses outside of the courtroom. The defendant alleges that the trial judge should either have (1) polled the jury to determine if they had any knowledge of the incident, and, if so, to determine if they were prejudiced by it, or (2) declared a mistrial Sua sponte as a result of the incident. He also asserts that the trial judge, in not informing the defendant that he had the option of moving for a mistrial, did not fully inform the defense of its options and this prejudiced the defendant's position.

This issue presents the question of jury prejudice from a view not presented to the court before this time. The typical case involving jury prejudice is one such as People v. Qualls (1968), 9 Mich.App. 689, 158 N.W.2d 60, in which the trial judge had questioned the jury with respect to possible prejudice from acts which occurred outside of the courtroom, the defendant had moved for a mistrial and the trial judge had denied that motion. In the case at hand, the trial judge, on his own motion, pointed out to the attorneys trying the case that he had become aware of the Possibility that the jury had been exposed to some information that Might be prejudicial to the defendant's interests. He presented the parties with a choice with respect to this information. He could either poll the jury as to their state of knowledge with respect to the information or he could not mention it at all. There had been no showing that any member of the jury actually knew of the arrest nor any showing that their knowledge of the arrest, if any, was in any way prejudicial to the defendant. The defense made a tactical decision not to pursue the matter further.

It should be recognized by the Court on appeal that one of the claims made by the defendant is that no determination was made by the...