People v. Lytal

• Decision Date: 03 December 1982
• Docket Number: Docket No. 55281
• Citation: 326 N.W.2d 559,119 Mich.App. 562
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David William LYTAL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 559

326 N.W.2d 559

119 Mich.App. 562

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David William LYTAL, Defendant-Appellant.

Docket No. 55281.

Court of Appeals of Michigan.

Submitted July 13, 1982.

Decided Sept. 21, 1982.

Released for Publication Dec. 3, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Kay F. Pearson, Asst. Pros. Atty., for the People.

State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant on appeal.

Before ALLEN, P.J., and CYNAR and MARTIN, ^* JJ.

CYNAR, Judge.

Defendant was originally charged with open murder for the death of his girlfriend, Tori Lynn Scott. On July 18, 1978, defendant pled guilty to open murder. The trial court subsequently took testimony to determine the degree of murder. It found defendant guilty of second-degree murder and sentenced defendant to a life term with credit for 240 days. This Court vacated defendant's guilty plea. The Supreme Court denied the prosecutor's application for leave to appeal. People v. Lytal # 1, 409 Mich. 884 (1980). Defendant was again charged with open murder. After a jury trial, defendant was found guilty of second-degree murder. M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Defendant was sentenced to a life term with credit for 2 years and 273 days. Defendant appeals as of right.

I

Defendant argues that the trial court abused its discretion by admitting evidence of defendant's prior felony convictions. MRE 609(a). The decision to admit evidence of prior convictions rests in the sound discretion of the trial court. People v. Jackson, 391 Mich. 323, 336, 217 N.W.2d 22 (1974). The trial court must recognize its discretion on the record, People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974), and should exercise its discretion with reference to three specific criteria, People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). ¹ Although it has been stated that the record should affirmatively reflect the trial court's awareness of the Crawford criteria, it has been held that this is unnecessary where there is no showing of an affirmative misapplication of the three criteria. See People v. Roberson, 90 Mich.App. 196, 201-202, 282 N.W.2d 280 (1979), lv. den. 407 Mich. 908 (1979), and People v. Wakeford, 94 Mich.App. 249, 251, 288 N.W.2d 381 (1979).

We do not find any indication that the trial court affirmatively misapplied the factors delineated in Crawford. The trial judge's comments indicate that he knew he had discretion to admit or exclude evidence of the prior convictions, although nowhere did he say the word "discretion". It is clear that he considered the nature of the offenses because he concluded that they involved dishonesty and noted the recency of the convictions. The second Crawford factor clearly favors admission because the crime charged, i.e., murder, is not similar to the defendant's prior drug convictions. The third Crawford factor, however, favors exclusion because the defense was accident and defendant was the only eyewitness to the incident. We note, however, that there was no evidence that drugs played a part in Ms. Scott's death. Thus, the fact that the prior convictions were for drug offenses does not augment their prejudicial impact, contrary to defense counsel's argument at the hearing on the motion in limine.

II

Defendant contends that the trial court erred by excusing the production of a res gestae witness and allowing that witness's prior recorded testimony to be read to the jury.

During the testimony of Diane St. Dennis, an occupant of the same apartment building as that occupied by the defendant, a special record was made regarding the physical condition of her father, Wilbur St. Dennis. Ms. St. Dennis testified that her father had recently been released from the hospital and had a bad leg, which was so swollen that he could not walk on it. She testified that he could not come to the courthouse and that he was under a doctor's care. The prosecutor later moved for the admission of Mr. St. Dennis's prior recorded testimony. Defense counsel objected on the ground that it was cumulative. Defense counsel renewed this objection before this testimony was read at trial. Defendant has not referred to, nor has this Court found, an objection to the failure to produce this witness. The failure to object will foreclose this issue on appeal unless, absent review, manifest injustice will result. See People v. Jeffrey Johnson, 113 Mich.App. 650, 662, 318 N.W.2d 525 (1982).

We find no such manifest injustice here. Mr. St. Dennis was not a key witness. His testimony was similar to that of the other occupants of the apartment building. Indeed, while arguing that the prior recorded testimony of Mr. St. Dennis should be excluded, defense counsel argued that it was cumulative and repetitious. Further, we note MRE 804(b)(1) allows the admission of hearsay evidence where the declarant is unavailable as a witness and the testimony was given as a witness at another hearing of the same proceeding and the defendant had an opportunity and similar motive to develop the testimony by examination. "Unavailability" includes a situation where the witness is unable to testify at the hearing because of a then-existing physical infirmity. MRE 804(a)(4). See also, People v. Murry, 106 Mich.App. 257, 307 N.W.2d 464 (1981), and People v. Doverspike, 5 Mich.App. 181, 146 N.W.2d 85 (1966).

We also reject defendant's argument that he was prejudiced by portions of Mr. St. Dennis's prior testimony which implied that the defendant was involved in criminal activity. Specifically, Mr. St. Dennis testified that he often overheard fights and conversations in the defendant's apartment. One conversation involved a discussion about an apparent larceny. There was no objection to this testimony at the earlier hearing. At trial, defense counsel objected to all of the testimony on the ground that it was prejudicial, but there was no specific reference to the evidence of other criminal activity in the objection. On appeal, defendant argues that he was denied effective assistance of counsel by the failure to object to this testimony at the earlier hearing. The standard for review of a serious mistake of counsel was set out in People v. Garcia, 398 Mich. 250, 266, 247 N.W.2d 547 (1976). We cannot conclude that defendant would have had a reasonably likely chance of acquittal had the disputed evidence not been admitted. Defendant was impeached by evidence of his prior convictions. Many of the prosecution witnesses, friends of defendant, were impeached by evidence of their prior convictions. Evidence of other possible criminal activity did not prejudice defendant.

III

On appeal, defendant argues that it was reversible error to mention first-degree murder during the jury instructions because the highest offense charged was second-degree murder. Defendant argues that the instructions encouraged a "compromise verdict", i.e., encouraged the jury to convict defendant of the highest charge because they could not convict him of first-degree murder. It is important to note that there is no objection on record to this jury instruction. Reversal, therefore, is not required unless manifest injustice would result. We find no such manifest injustice. See People v. King, 361 Mich. 140, 104 N.W.2d 922 (1960), and People v. Alexander, 33 Mich.App. 704, 190 N.W.2d 319 (1971).

In People v. Palmer, 105 Mich. 568, 63 N.W. 656 (1895), the trial judge defined the different degrees of murder and also manslaughter. Later, the trial judge withdrew first-degree murder from the jury's deliberation because the defendant had been acquitted of that charge in a former trial. On appeal, the defendant argued that the charge was misleading and prejudicial because the judge first defined murder in the first degree and instructed the jury that they should commence with the higher crime. The Supreme Court rejected this argument: "A juror who could be thus misled or prejudiced would not possess intelligence sufficient to justify his sitting as a juror in any case." Id., 573, 63 N.W. 656.

Defendant attempts to bolster his argument by suggesting that the instruction, when coupled with the evidence of sexual conduct and the prosecutor's rebuttal argument, improperly suggested a first-degree murder-felony (rape) theory to the jury. Scientific evidence presented at trial indicated that the victim had sexual intercourse within 8 to 12 hours before the autopsy. Defendant testified that he had sexual intercourse with Ms. Scott during a period when they were not fighting.

In closing argument, defense counsel mentioned several times that defendant and Ms. Scott had consensual intercourse during the several hours they were fighting. During rebuttal, the prosecutor suggested that sexual relations between defendant and Ms. Scott were certainly not voluntary. Defense counsel did not object to this argument. Appellate review is precluded unless the failure to review would cause a miscarriage of justice. People v. Duncan, 402 Mich. 1, 15-16, 260 N.W.2d 58 (1977); People v. Hogan, 105 Mich.App. 473, 485-486, 307 N.W.2d 72 (1981). Argument which may be improper if standing alone may not constitute reversible error because of its responsive nature to matters raised by the defendant and where any unduly prejudicial effect could have been eliminated by a curative instruction if one had been requested upon a timely objection. Duncan, supra, 402 Mich. at 16-17, 260 N.W.2d 58. We believe the prosecutor's remarks were in response to the defense argument that the sexual intercourse was consensual, an argument possibly made to suggest that defendant did not want to kill his girlfriend. Even if the prosecutor's argument was improper, it could have been remedied by a curative instruction had one been requested.

IV

We have not found a defense counsel objection to the testimony concerning evidence of possible sexual relations between de...