People v. Macklin

• Decision Date: 23 April 1973
• Docket Number: 12705,Docket Nos. 12786,No. 2,2
• Citation: 46 Mich.App. 297,208 N.W.2d 62
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles MACKLIN and James Chipman, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 62

208 N.W.2d 62

46 Mich.App. 297

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles MACKLIN and James Chipman, Defendants-Appellants.

Docket Nos. 12786, 12705.

Court of Appeals of Michigan, Division No. 2.

April 23, 1973.

Released for Publication June 15, 1973.

Roger W. Kittendorf, Hayes & Kittendorf, Flint, for Macklin.

James C. Dillard, Neithercut & Neithercut, Flint, for Chipman.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and FITZGERALD and O'HARA, ^* JJ.

FITZGERALD, Judge.

On April 6, 1971, two Genesee County deputy sheriffs were assigned to take three county jail prisoners to a dentist's office in Flint for dental attention. Two of the prisoners were the defendants herein. At that office, during an escape attempt, one deputy was shot and died as a result thereof, and one deputy was seriously wounded.

Defendants were tried together and were convicted by a jury of first-degree murder ¹ of one deputy, and of assault with intent to murder ² another deputy.

The events which took place on April 6, 1971, are as follows:

Defendants Chipman and Macklin were inmates in the Genesee county jail awaiting trial on other charges. On the date in question, they were taken along with one Jessie Bailey to a dentist's office by Deputies Harry Abbott and Ben Walker. While at the dentist's office, a scuffle between Chipman and Macklin and the two deputies occurred. Deputy Walker was shot and died as a result of the wound; Deputy Abbott was seriously wounded. After the shooting the defendants fled, but were subsequently apprehended.

The prosecution theory at the trial was that while Chipman and Macklin were in the jail, they formulated a plan to escape and that they were prepared to effectuate their plan, even if it meant taking a life.

This theory was attempted to be proved by the people by statements and admissions made by Macklin. The prosecution theory as to Chipman was that he was acting as an aider and abettor, that he was part of the escape plot, and that the actions and intent of his codefendant would be attributable to him.

Each defendant raises separate issues on appeal which will be dealt with Seriatim.

Issues raised by defendant Macklin are:

1. Is defendant entitled to reversal of his conviction because the people introduced only that portion of defendant's confession which implicated him in the commission of the crimes charged?

2. Did the trial court commit error in its instructions to the jury? And if it did, can defendant raise objection for the first time on appeal?

Issues raised by defendant Chipman are:

1. Was the evidence introduced against defendant Chipman sufficient to support a conviction of murder in the first degree?

2. Did the trial court err in failing to instruct the jury that they were to consider the portion of codefendant Macklin's confession which was admitted into evidence against Macklin?

Defendant Macklin's first claim revolves around the confession. On April 6, 1971, Macklin gave police a 16 page statement of facts leading up to and bearing upon the crimes. Large portions of that statement implicated codefendant Chipman. At a pretrial Walker hearing, the statement of Macklin was ruled admissible at trial. Defendant Chipman subsequently moved for separate trials, contending that Macklin's statement would necessarily implicate him as forbidden by Bruton v. United States 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The prosecution, at trial, introduced only a small part of defendant Macklin's statement:

'Q. (Of the officer): I want to ask you: Pursuant to your duties on that date, did you have occasion to question a Charles Macklin concerning the events of that day?

'A. Yes, sir, I did.

'Q. Now, I want to direct your attention, Lieutenant, to that occasion and ask you where you were.

'A. In my office at the Detective Bureau of the Flint Police Department.

'Q. And who was present at that time?

'A. Excuse me. Detective Captain Victor Smith and Stenographer Loretta Morningstar.

'Q. All right. Now, I want to ask you if you advised Mr. Macklin of his rights.

'A. Yes, sir, I did.

'Q. Now, did you at that time question him concerning his activities prior to the shooting of Deputy Walker and Deputy Abbott?

'A. Yes, sir, I did. Yes sir.

'Q. All right. Could you tell us what questions you asked him and what answers he gave to whose questions?

'A. I asked him--

'Q. Had you planned on making an escape before you left the jail this morning?'

'And his answer was, 'Yes.'

'My next question was:

'Q. Was it planned to shoot the officers if you had to?'

'And his answer was:

'A. You know, if that was the only way.'

'My next question was:

'Q. Did you make any definite plan as to what you would do first, like get a mace can first?'

'His answer was:

'A. Yes.'

'Mr. Leonard: Your witness.

'Mrs. Eakin: I have no questions.

'Mr. Zielinski: No questions, your Honor.'

Defendant Macklin's attorney, prior to the admission of the confession as deleted, had complained to the court that the confession as abridged by the prosecution was prejudicial to Macklin. Macklin again moved for a separate trial. The court thereafter reviewed the confession as deleted and permitted the prosecution to introduce it in its deleted form.

It is accepted procedure in joint trials, involving codefendants, to allow a prosecutor to introduce a lawfully acquired confession of one of the defendants, provided any reference to one of the other co-defendants is deleted. People v. Patton, 15 Mich.App. 198, 166 N.W.2d 284 (1968); People v. Ronald Smith, 27 Mich.App. 442, 183 N.W.2d 584 (1970).

Defendant Macklin claims however that the prosecutor, if he introduces a part of a confession, is under a duty to introduce the entire confession. In support of his contention that the prosecutor is under a duty, once he has introduced a part of a confession, to introduce the rest of it, defendant Macklin cites the cases of People v. Hepner, 285 Mich. 631, 281 N.W. 384 (1938) and People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466 (1943). Both of these cases are distinguishable from the instant one, standing for the proposition that where the prosecution introduces only a part of a statement, the defendant is entitled to put the complete statement into evidence.

The foregoing cases were decided in the Pre-Bruton period. In the instant case, the prosecution could not and did not introduce defendant Macklin's complete statement. Defendant's trial attorney, probably because of Bruton, did not urge the admission of the entire 16-page statement. Rather, her objection was to the effect that the confession, as deleted, should not be admitted at all because, as it stood, it was prejudicial to defendant Macklin.

In accordance with Bruton a defendant being tried jointly with a codefendant does not, in the absence of a showing of prejudice, have a right to have his whole confession introduced when portions of said confession also implicate the nonconfessing codefendant. Such a ruling would comport with the spirit of Bruton and the procedure itself is proper as demonstrated in cases such as Patton and Smith, supra.

That a defendant, in urging this Court to reverse his conviction, must show how he was prejudiced by an alleged error, is well settled. People v. Calhoun, 17 Mich.App. 401, 169 N.W.2d 505 (1969). Defendant Macklin makes the bare assertion that the failure of the prosecution to introduce the rest of his confession at trial is reversible error. He has not shown how he was prejudiced. Consequently, this Court cannot predicate reversible error upon the fact that the prosecution, in deference to Bruton, only introduced a part of defendant Macklin's confession.

Defendant Macklin contends as his second point, and for the first time on appeal, that the trial court committed error in its instructions to the jury because the judge allegedly overemphasized the phrase 'lying in wait' and allegedly led the jury to believe that lying in wait to commit murder and lying in wait to escape were one and the same. This contention is without merit.

First of all, as the people correctly point out, the defendant did not object to this instruction at trial. Where no objection has been made to instructions, the alleged errors have not been saved for appellate review absent manifest injustice. People v. McKeller, 30 Mich.App. 135, 185 N.W.2d 905 (1971). The instant case is not one in which the trial court failed to instruct upon an element of the offense. Defendant contends that the trial court's instructions gave the jury the impression that lying in wait to commit murder (under the first-degree murder statute) and lying in wait to escape were one and the same crime. The speciousness of this claim is best exhibited by an examination of the allegedly defective part of the instructions:

'Now, let's discuss the matter of count one, the charge of murder. Murder is defined as where a person of sound memory and discretion willfully and unlawfully and unreasonably kills any creature as being against the peace of the State with malice aforethought, express or implied. Under the statute of this State, all murders which are perpetrated by means of poison or lying in wait or any other means of unlawful, deliberate, and premeditated killing, or which should be committed in the perpetration of certain offenses as defined by statute shall be deemed murder in the first degree. This is the statutory definition.

'All other murders are deemed to be murder in the second degree. If one without cause inflicts a wrong upon another, we call him wicked and malice. So when one, without any legal provocation, justification, or excuse intentionally kills another, he is called a murderer. The law implies from such unprovoked, unjustifiable, or inexcusable killing the existence of that wicked disposition which the...