People v. Markham

• Decision Date: 29 October 1969
• Docket Number: No. 1,Docket No. 5062,1
• Citation: 173 N.W.2d 307,19 Mich.App. 616
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry MARKHAM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 307

173 N.W.2d 307

19 Mich.App. 616

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry MARKHAM, Defendant-Appellant.

Docket No. 5062.

Court of Appeals of Michigan, Division No. 1.

Oct. 29, 1969.

Released for Publication Jan. 9, 1970.

Joel M. Shere, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before FITZGERALD, P.J., and LEVIN and T. M. BURNS, JJ.

T. M. BURNS, Judge.

Defendant was found guilty of kidnapping by a jury in Wayne county circuit court and sentenced to serve 25 to 35 years under M.C.L.A. § 750.349 (Stat.Ann.1954 Rev. § 28.581) by the Honorable John M. Wise. Defendant was jointly tried under M.C.L.A. § 768.5 (Stat.Ann.1954 Rev. § 28.1028) with Robert Rolston, who was also convicted and sentenced to serve 30 to 40 years.

The pertinent facts are that defendant and his co-defendant were in the Great Lakes Hotel and Bar in River Rouge on January 23, 1967. Defendant testified that Rolston wrote out a hold-up note instructing the barmaid to give defendant the money and that Rolston gave the note to her. Defendant then went into the back room and the barmaid followed. She gave him the money. Defendant then took her out to Rolston's car where she waited while he called Rolston out of the bar. They all proceeded to defendant's parents' cottage at Half Moon Lake where defendant had sexual intercourse with the victim. The defendant testified that his co-defendant went into the bedroom with the victim, but that he did not know if his co-defendant had sexual intercourse with her.

Defendant testified that after Rolston came out of the bedroom, Rolston told him that he (Markham) would have to kill the barmaid since she knew him. The three of them then left the cottage again the Rolston's car which became bogged down because the road was muddy.

Defendant testified that when the three of them got out of the car, Rolston gave him a pistol and told him to kill the barmaid, Mrs. Riddell. He then testified that, with Rolston leading the way, they went up a hill to kill Mrs. Riddell.

Defendant testified that he had told her to play dead, and that when he fired his gun near her she fell down in a faint. He then testified that he told his co-defendant, 'I killed her. Let's go;' but that Rolston went over to her and, when he had determined that she was still alive, short her twice in the head.

At trial there were several witnesses who testified as to the events which immediately preceded the kidnapping, but no witnesses testified, except the co-defendants, to the subsequent events leading up to the murder.

Defendant relied on a defense of temporary insanity at trial while his co-defendant claimed he acted under duress by defendant.

Before trial, defendant's counsel, in response to co-defendant Rolston's attorney's request to interview defendant's psychiatric witnesses before trial, moved to enjoin Rolston's counsel from introducing evidence or cross-examining witnesses for the purpose of impeaching defendant's defense of temporary insanity, or, in the alternative, to grant separate trials. ¹ The trial judge denied the co-defendant's request to interview the psychiatric witnesses before trial. At trial the thrust of the testimony by the defendant's psychiatric witnesses was that defendant was a passive schizophrenic who acted at the direction of his older friend, who, although his name was not mentioned, was obviously the co-defendant Rolston.

Since this amounted to testimony against co-defendant Rolston and tended directly to refute his defense of duress, the trial judge decided to allow co-defendant's counsel to cross-examine in order to protect his client's right of confrontation. ² See Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. He emphasized, however, that the burden of refuting the defense of temporary insanity remained on the prosecution.

Defendant's counsel renewed his objection to such cross-examination at that time and further asked that one of the jurors be disqualified for alleged prejudice against one of defendant's witnesses. ³

The trial judge decided that although he did not doubt defendant's attorney's statement as to what was said by the juror, such a statement was not grounds for a mistrial nor sufficient grounds to disqualify the juror.

At the conclusion of the proofs, defendant submitted along with his other requested charges several which related to defendant's defense of temporary insanity. He requested that in addition to the 'right-wrong' and 'irresistible impulse' tests the court charge the jury under what he called the 'more modern rules' enunciated in Durham v. United States (1954), 94 App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, and United States v. Currens (C.A.3, 1961), 290 F.2d 751. The trial judge refused.

We note that the trial judge here gave careful and detailed instructions to the jury as to both defendants' theories of the case and in all other aspects of the case. The jury after some deliberation asked to see defendant's hospital record. The trial judge at the time reiterated his instructions as to participants in a crime. He went on to say:

'You are to consider the case of the defendants separately. However, in order to convict either defendant of the charge made against him in this Information there must be evidence against such defendant which convinces you beyond a reasonable doubt of the guilt of that particular defendant. While these defendants were tried together and were charged with a joint offense, it is necessary that the evidence shall be given against each one of them and it is within the power of the jury and it is also the duty of the jury to consider the case of each defendant separately as though he were on trial here alone. If the evidence is not sufficient to convict him, no matter whether it is sufficient to convict the other defendant or not, then you should consider the case of each one just the same as if he were on trial alone and you can render a verdict with regard to one which may be one way and with regard to the other which may be the other way.'

The jury then retired to deliberate and returned guilty verdicts against both defendants within an hour.

On appeal, defendant raises three questions for our consideration which are considered and disposed of separately.

DID THE TRIAL JUDGE ERR IN DENYING DEFENDANT'S MOTION TO DISQUALIFY A JUROR ON THE GROUNDS OF THAT JUROR'S ALLEGED BIAS TOWARD ONE OF DEFENDANT'S WITNESSES?

The defendant claims on appeal that the juror's alleged remark as presented in footnote 3 imposed a legal duty upon the trial judge to interrogate the juror. ⁴

Certainly as the appellant notes citing People v. Schram (1965) 1 Mich.App. 279, 284, 136 N.W.2d 44, 46:

'The rule is well stated in People v. Levey (1919), 206 Mich. 129, at pages 130 and 131, 172 N.W. 427, at pages 428: 'Both the people and defendant were entitled to a trial by a fair, impartial, and unprejudiced jury."

See generally People v. Freeman (1969) 16 Mich.App. 63, 70, 167 N.W.2d 810. We note that neither this court nor the Supreme Court of this state which affirmed People v. Schram, Supra in (1966) 378 Mich. 145, 142 N.W.2d 662 found reversible error in the trial court's denial of a mistrial. See also People v. McDonald (1969) 17 Mich.App. 88, 169 N.W.2d 148.

The rule of the Schram case as followed by this court in People v. Qualls (1968), 9 Mich.App. 689, 693, 158 N.W.2d 60, 63:

'* * * (I)s that not every improper contact with a jury presents grounds for a mistrial, and the appellate court will reverse only when prejudice is affirmatively shown or facts clearly establish the inference that it occurred from what was said or done.'

In the Schram case, the prosecuting attorney had conversed with two of the jurors; and in Qualls, a manslaughter case, the victim's brother had strongly criticized the defendant's counsel in the presence of some of the jurors.

Unlike the cases upon which appellant relies, ⁵ here we have no such colorably improper contact or outside prejudicial influence. The alleged comment of the juror viewed in conjunction with purported facial expressions is not an unequivocal statement of prejudice like that found in People v. Sharp (1910), 163 Mich. 79, 80, 127 N.W. 758. Nor are we persuaded that the trial court abused its discretion under People v. Bartlett (1945), 312 Mich. 648, 20 N.W.2d 758. Although we do not share the trial judge's view that it would have been reversible error to have interrogated the juror as to possible prejudice, we do not find that he clearly abused his discretion in refusing to do so. See People v. Bergin (1969), 16 Mich.App. 443, 448, 168 N.W.2d 459. The Supreme Court in People v. Schram, Supra, p. 159, 142 N.W.2d 662 compared the situation before it to People v. Nick (1960), 360 Mich. 219, 103 N.W.2d 435 and derived its rule therefrom. Consequently, we turn to the Nick case and rely on it as the touchstone for deciding cases of this type. The Court in Nick, supra, p. 224, 103 N.W.2d p. 437 said:

'The judge presiding throughout the trial and observing the occurrences in the courtroom and elsewhere was in a better position to determine the probability of any conduct on the part of jurors or others prejudicial to the rights of the defendant than is this Court.'

The trial judge throughout the trial advised the jury against discussing the case amongst themselves or with anyone else, and against expressing any opinions. We find that (a) 'juror is entitled to react within the confines of proper decorum to the testimony presented.' People ex rel. Adams v. Moran (1962), 35 Misc.2d 1078, 232 N.Y.S.2d 201. Noting that in the Nick case there was no interrogation of jurors; we find that although an interrogation of the juror in question here would...