People v. LoPresto, Docket No. 1410

• Decision Date: 08 December 1967
• Docket Number: Docket No. 1410,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angelo LoPRESTO, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 586

156 N.W.2d 586

9 Mich.App. 318

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Angelo LoPRESTO, Defendant-Appellant.

Docket No. 1410.

Court of Appeals of Michigan, Division No. 2.

Dec. 8, 1967.

Released for Publication March 1, 1968.

George M. Maurer, Jr., Zwerdling, Miller, Klimist & Maurer, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Harvey W. Moes, Special Pros. Atty., Hillsdale County, Hillsdale, for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and BAUM, ^* JJ.

BAUM, Judge.

Defendant was charged with assault with intent to murder ¹ and was convicted by a jury of felonious assault. ² He moved for a new trial on the ground of newly discovered evidence. He claims that the trial judge erred in denying this motion and submits seven other assignments of error. Since we conclude that newly discovered evidence warrants a new trial, it will not be necessary to consider the other assignments of error.

There is a lively controversy over the facts in this case. We shall try to separate those which are in dispute from those which are not.

It is clear that Lewis Scott suffered a gunshot wound of the leg in a three-cornered affray. One group of participants in the affray consisted of Scott, Duane Butler, and Edward Earl Brantley. These three men were employed by a private police company which was furnishing services to the strikebound Hillsdale plant of Essex Wire Company. At the time of the altercation, the three plant guards were in an auto attempting to escort another vehicle which was carrying two temporary workers.

The second group participating in the affray consisted of Bertus Stemen and Robert Hawley. Stemen was the driver and Hawley a passenger in a small jeep-like truck which was in a procession of a dozen or so cars. The entire auto caravan was harassing the plant guards in the latter's effort to escort and protect the two temporary workers. The defendant offers the following explanation for the harassment. The temporary workers were believed by strike sympathizers to be imported 'scabs' who had committed an unprovoked knife attack upon a local citizen. Joseph LoPresto, the defendant's brother, had tried to have the temporary workers arrested, but local authorities refused to do so without a warrant. The strike sympathizers were upset over this and the harassment ensued.

The third group of participants in the affray consisted of the defendant, Angelo LoPresto; his brother, Joseph; and Joseph's 15-year-old son, Tony.

Which of these three groups was the original aggressor was disputed in the evidence and was one of the critical questions before the jury.

The defendant denied firing the shot which injured Scott. The gist of the testimony given by the defendant, Angelo LoPresto, and his brother, Joseph, was that Joseph LoPresto fired the shot in legitimate defense of Angelo and young Tony to protect them from grace danger. On the other hand, testimony from certain of the people's witnesses supported the theory that The melee started with an exchange of violence between the plant guards on one side and Stemen and Hawley on the other. It was hotly disputed at the trial, however, which of the two groups was the aggressor.

There was also a dispute in the testimony concerning which of the five men in this initial altercation was the first to use potentially deadly force.

There appears to be no dispute that the LoPrestos went to the aid of Stemen and Hawley. There is a dispute in the evidence, however, whether this amounted to the LoPrestos' joining in the agressing of their friends, or was in fact the legitimate use of defensive force to protect their companions.

Concerning events which followed the LoPrestos' entry into the affray, there was a controversy as to whether persons in the LoPresto group or in the plant guard group were the first to employ force which appeared to be capable of killing or inflicting great bodily harm.

There was evidence to support the view that the purpose of the shooting was to protect the life of young Tony. On the other hand, there was evidence to support the view that the shooting was with malice aforethought--a product of hatred and racial bigotry. Whether the shooting represented defensive or aggressive force was the principal question for the jury.

The court instructed the jury on self-defense, defense of relatives and defense of companions. Under these instructions, the jury must have found that the LoPresto group were aggressors or were seriously at fault in the melee. We turn now to the defendant's claim that newly discovered evidence warrants a new trial. The defendant relies on five separate items of evidence. First, the defendant discovered that Duane Butler, one of the plant guards, lied in answering the question, whether he had ever been arrested or convicted of any crime. Butler answered, 'I was convicted of a drunk driving charge Once, sir.' (Emphasis added.) The full context of Butler's testimony on cross-examination makes it clear that he conveyed to the jury the impression that this was his only conviction. The newly found evidence shows that in addition to the drunk driving conviction, Butler had, to his knowledge, twice been arrested and convicted of assault. There is also newly discovered evidence of a third assaultive offense by Butler, but apparently he had not yet been arrested for it at the time of trial.

The second item of the defendant's allegedly newly discovered evidence consists of an affidavit from Butler. On the question of who committed the first serious violence, Butler's affidavit is diametrically opposed to his trial testimony. He testified at trial that Stemen and Hawley were the initial aggressors, aided and abetted by the three LoPrestos. The tenor of Butler's posttrial affidavit is to make Brantley the aggressor in the sense of being the first to resort to physical force sufficient to engender a reasonable and honest belief that it was capable of inflicting serious bodily harm.

The third portion of the allegedly newly discovered evidence consists of information concerning the background of Edward Earl Brantley. The new evidence indicates that Brantley had testified falsely respecting his age, his educational background, his employment record and his weapons-carrying practices. Brantley was one of three plant guards who participated in the physical encounter. There is no question that he exchanged physical force with Stemen and Hawley. The evidence is conflicting as to whether he knifed Stemen. Brantley's trial testimony flatly, clearly, and unreservedly made Stemen and Hawley the aggressors and the LoPrestos, aiders and abettors in such aggression. By his testimony, Brantley and his fellow plant guards were without fault in the melee.

At trial Brantley testified that he attended a Detroit high school and was active in extracurricular activities. The newly discovered evidence shows that he never attended high school; that when he was in the seventh grade he was assigned to an ungraded class in the Moore School for boys; that his formal education ended less than two years later when he left the Moore School; that his testimony regarding extracurricular activities was a complete fabrication.

His testimony at trial established a stable and good work record in desirable employment. The newly discovered evidence, on the other hand, shows an unsatisfactory work record. It was revealed after trial, contrary to his testimony, that Brantley had never worked for the Detroit Department of Parks and Recreation; that he hardly had a week's work, all told, for Star Florists, contrary to his testimony of lang enduring employment; that he worked for Singleton Private Police for less than two months rather than the nine months to which he testified; and that he was fired by two different employers, Ford Motor Company and Singleton Private Police, for work-related misconduct which was in direct conflict with his testimony at trial.

At trial, he testified that he never carried weapons. The newly discovered evidence demonstrates otherwise.

The fourth item of allegedly newly found evidence is the statement of one Joe Cisneros. Cisneros was not indorsed as a Res gestae witness, although he was at the scene of the shooting. His statement reveals that he did not observe the aggressive conduct on the part of Stemen, Hawley and the LoPrestos which was described by prosecution witnesses. His statement also indicates that he did not observe one Merle Gratz at the scene. Gratz was a key prosecution witness at the trial. At that time, the defendant was unaware of the existence of Cisneros and had no idea of Cisneros' knowledge of Res gestae facts.

The last item of newly discovered evidence consists of an affidavit subscribed by William Benson, Dannie Byard, and John Miller. They were not indorsed on the information. Their affidavit tends to show that Brantley was armed with a knife; that he probably cut Stemen; that he had earlier threatened 'to get' the LoPrestos in profane language and in a provocative manner; that in doing so, Brantley brandished a switchblade or hunting knife from his car window; that Lewis Scott, shortly before the shooting, drove the plant guard's car at a high rate of speed at the LoPresto station wagon almost striking the LoPresto car. These affiants did not see the shooting itself, but saw events so close in time that they lend credence to the defendant's claim that the plant guards were the aggressors.

The Benson-Byard-Miller affidavit has the tendency of showing that the first physical assault with force sufficient to kill or inflict great bodily harm was an assault by motor vehicle, driven by plant guard Scott upon the auto occupied by the LoPrestos.

We turn now to the question of whether the trial judge erred in denying the defendant's motion for a new trial. Tests for measuring the sufficiency of newly discovered evidence were...