People v. Marshall

• Decision Date: 01 May 1974
• Docket Number: No. 2,Docket No. 17305,2
• Citation: 53 Mich.App. 181,218 N.W.2d 847
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry MARSHALL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 847

218 N.W.2d 847

53 Mich.App. 181

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry MARSHALL, Defendant-Appellant.

Docket No. 17305.

Court of Appeals of Michigan, Division No. 2.

May 1, 1974.

Released for Publication June 19, 1974.

Michael A. Mason, Mason & Mason, Flint, for defendant-appellant.

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 HOLBROOK, P.J., and ALLEN and VanVALKENBURG,* JJ.

HOLBROOK, Presiding Judge.

After being tried jointly, defendant Marshall and a codefendant were convicted of larceny from a building, M.C.L.A. § 750.360; M.S.A. § 28.592, by a jury in Genesee County Circuit Court. Defendant was sentenced to a term of 32 months to 4 years in prison and appeals as of right.

The defendant and one Harold R. Haywood were charged with larceny from a J. L. Hudson Store in Flint Township, Genesee County. The defendant and Haywood were both represented by the same counsel at trial.

The major witness called by the prosecution was a security investigator at the Hudson Store. This investigator, Bernard Teachout, testified that on the evening in question he was situated in an observation booth above the selling area of the store's men's department. He testified that he observed the defendant and Haywood enter the department, walk to a clothes rack and remove clothing therefrom. He testified that Haywood removed a suit jacket and two pairs of pants from a hanger on the rack. The suit coat was handed to defendant Marshall. He testified that Marshall concealed the suit coat underneath the jacket he was wearing and that Haywood concealed the pants under his jacket. Thereafter, the two proceeded to walk through the exit of the store and into the parking area. After calling for assistance, Teachout descended from the observation booth and followed the defendant and Haywood into the parking area. An officer in a Genessee Valley Mall patrol car, who had responded to Teachout's request, called for the subjects to halt. From the testimony presented, it appears that Haywood stopped, whereas the defendant 'took off running'. Defendant was apprehended approximately 100 feet farther into the parking lot. During this scene, the suit jacket dropped 'from underneath Marshall's coat', according to Teachout.

While the defendant was being apprehended, Haywood was apprehended by two other security officers. One of these officers testified that he recovered two pairs of slacks from underneath a vehicle in the parking lot. When he was apprehended Haywood was standing in front of the vehicle, approximately 'ten feet' from the clothing. No one had seen Haywood drop or throw the clothing.

At trial defendant did not testify. Haywood testified that he did not take any clothing from the store. He stated that he and the defendant had entered and left the store together. According to him, while in the men's department, the defendant was in a different area while he was trying on suede jackets.

In his charge to the jury, the trial court included an instruction on aiding and abetting. Defense counsel moved for a mistrial, asserting that he was unaware that that was an issue in the case. The court responded that the instruction would have to remain, and stated:

'I think that the significance is that it is not necessarily an expansion upon the proofs, but rather is a justifiable instruction in a situation comparable to the one that we have before us, where there is an allegation that two parties joined together in the commission of a felony; and I'd have to deny the request.'

I

Does the inclusion of the instruction as to aiding and abetting constitute reversible error?

Defendant asserts that the evidence presented at trial supported only either the theory that the defendant was guilty of larceny as a principal or was not guilty of the alleged larceny in any way. He says that, based on Haywood's testimony that he took no clothes and the prosecution's presentation, there may have been an issue as to whether Haywood could have been convicted as an aider and abettor to the defendant. He asserts that in this context the questioned instruction would have been proper had the trial judge limited the consideration of aiding and abetting only to Haywood.

'The office of the charge is to apprise the jury of the questions involved and the rules of law applicable thereto,' People v. Ring, 267 Mich. 657, 661, 255 N.W. 373, 374, 93 ALR 993, 995--996 (1934). See, also, People v. MacPherson, 323 Mich. 438, 452, 35 N.W.2d 376, 382 (1949). In pertinent part, the trial court instructed the jury:

'We also have a law in the state with respect to principals and accessories, and I would like to tell you what it is. It says this: that in all felony cases all parties who are concerned in the commission of a felony, whether they directly commit the act constituting the felony or aid and abet in its commission, are held to be equally responsible; so that whether a party commits by himself the entire act which constitutes a felony, or if he is concerned with another in its commission, if he aids another in its commission, if he assists another in its commission, by word or deed, either by words of encouragement, assistance or support, or by actions giving encouragement, assistance or support, either party under these circumstances would, in the eyes of the law, be held to be equally responsible that is, so far as their personal guilt or innocence is concerned.' ¹

It is reversible error to give an instruction on aiding and abetting when there is no evidence to support that charge. People v. McClendon, 48 Mich.App. 552, 558, 210 N.W.2d 778, 781 (1973); People v. Ware, 12 Mich.App. 512, 516, 163 N.W.2d 250, 252 (1968); People v. Davis, 32 Mich.App. 704, 705, 189 N.W.2d 132, 133 (1971). It is a question of whether there is evidence of concert of action. People v. Walker, 40 Mich.App. 142, 144, 198 N.W.2d 449, 450 (1972). See, also, People v. Adams, 35 Mich.App. 408, 411, 192 N.W.2d 625, 626 (1971), and People v. Dawson, 32 Mich.App. 336, 337, 188 N.W.2d 676, 677 (1971).

In McClendon, supra, one individual was caught by a police officer at the scene of the crime. The police officer radioed a description of the defendant, and he was apprehended one block away from the building. This Court held that a review of the record disclosed that there was ample proof as to the presence of an accomplice. Ware, supra, was a charge of breaking and entering with intent to commit larceny. The people's theory was that the defendant and others had perpetrated the breaking and entering. Some witnesses had used the word 'they'; however, there appeared no substantive proof to justify the theory or the charge. In the present case, merely the testimony of the complaining witness, Teachout, is sufficient to show that there was substantive proof on the record of concert of action. Further, the fact that the defendant was apprehended after Haywood some 100 feet farther into the parking lot makes this case similar to McClendon. Reviewed in this fashion, the questioned instruction was not erroneous.

As to defendant's assertion of error on the part of the trial court in failing to give a limiting instruction on aiding and abetting, we point out that no request therefor was made nor was an objection made to its not being included. In People v. Chism, 390 Mich. 104, 120--121, 211 N.W.2d 193, 200 (1973), Justice Williams wrote:

'Here no instruction was ever requested by defendant nor did he offer objection to the final charge to the jury. As a result, no cautionary instruction was ever given. We hold that in the absence of request or proper objection under present Michigan case law, there is no absolute requirement that the trial judge give limiting instructions, even though such an instruction should have been given.'

In People v. Bohm, 49 Mich.App. 244, 253--254, 212 N.W.2d 61, 66 (1973), speaking for this Court, this writer held that where there was no request or objection, there was no error in not giving an instruction as to the defendant's failure to take the witness stand. Similarly, in People v. Grace, 50 Mich.App. 604, 213 N.W.2d 853 (1973), the failure to request a cautionary instruction as to an alleged prior inconsistent statement was held to foreclose reversal. In People v. Anderson, 13 Mich.App. 247, 250, 163 N.W.2d 793, 794 (1968), there was no error in not giving an instruction limiting the use of a police informer's testimony to an alleged prior offense where no request or objection was made. In People v. Stevens, 25 Mich.App. 181, 181 N.W.2d 31 (1970), and People v. White, 27 Mich.App. 432, 183 N.W.2d 606 (1970), evidence which was admissible to show purpose, scheme, plan or assistance did not warrant a Sua sponte limiting instruction in the absence of request or objection. ² In People v. McGath, 31 Mich.App. 351, 187 N.W.2d 904 (1971), there was no error in not Sua sponte giving a limiting instruction where the prosecution's key witness testified that he had accomplices in other robberies which left open the possibility of inference by the jury that the witness was referring to the defendant.

Under the facts in this case, we find there has been no prejudice to the defendant which has resulted in a miscarriage of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096.

II

Was defendant denied effective assistance of counsel due to joint representation at trial?

After the proofs were presented and before the jury retired, the trial court explained to the jury that joint trial is a matter of convenience and does not dilute each defendant's right to separate determination. In his instructions, the court charged the jury that they were to consider the testimony with respect to each individual separately and that the verdict as to each would be returned separately.

The defendant now asserts that a conflict of interest...