People v. Maybee, Docket No. 8980

• Citation: 205 N.W.2d 244,44 Mich.App. 268
• Decision Date: 16 January 1973
• Docket Number: No. 2,Docket No. 8980,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James MAYBEE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 244

205 N.W.2d 244

44 Mich.App. 268

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James MAYBEE, Defendant-Appellant.

Docket No. 8980.

Court of Appeals of Michigan, Division No. 2.

Jan. 16, 1973.

Released for Publication March 27, 1973.

Leave to Appeal Denied May 3, 1973.

Charles J. Porter, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and V. J. BRENNAN and TARGONSKI ^*, JJ.

TARGONSKI, Judge.

Two questions confront us in this appeal from a jury conviction of manslaughter in violation of M.C.L.A. § 750.321; M.S.A. § 28.553. The first issue is the question of whether the trial court committed reversible error in failing to give, Sua sponte, a cautionary jury instruction concerning the credibility of accomplice testimony. The second is whether the trial court committed reversible error under the facts of this case in permitting a codefendant, being tried without a jury and whose statements were shown to be inconsistent, to testify in the jury trial of defendant after the codefendant had testified on his own behalf in the absence of the jury.

One Lorenz Baltz died March 15, 1969 as a result of stab wounds inflicted that date in the men's room of Bob & Ken's Bar in Pontiac, Michigan. There was adequate testimony by customers and an employee of the bar to place the defendant James Maybee as well as his codefendant Richard Henry in the area of the men's room of the bar at the approximate time of the stabbing. Testimony also indicated that the murder weapon, a hunting knife, belonged to the codefendant Henry. They both departed from the bar shortly after the wounded man exited from the bar. Henry was heard to say, 'We better get out of here.' and Maybee responded, 'I don't have to get out of here, I didn't do nothing (sic).'

Codefendant Henry was arrested on the evening of the altercation indicated above, while this defendant was not arrested until March 17, 1969, at which time he was allegedly walking towards the Pontiac police station for the purpose of surrendering himself. Henry's pants which he wore at the time of the arrest and a gold-colored jacket which was retrieved later from the rear of a bar located approximately one block from the place in which the incident took place, and papers in his wallet, all had human bloodstains of Type O on them which was the same type of blood as the victim's. Chemical tests performed on the clothing worn by defendant Maybee on the night of March 15, 1969, showed no bloodstains. Chemical tests performed on the hunting knife which was found on the floor of Bob & Ken's Bar revealed that the stains were of human blood origin and Type O.

Defendant Maybee was tried in a joint trial with codefendant Henry. The former was tried by a jury while his codefendant elected to waive and be tried by the court.

At trial, Detective Sergeant Orville Johnston of the Pontiac Police Department testified in the absence of the jury with regard to inconsistent statements made by codefendant Henry after his arrest. Such inconsistent statements related to bloodstains on his clothing, the location of the gold bloodstained coat and the location of the hunting knife both before and after the incident in question.

When the prosecution had rested, counsel for codefendant Henry called him to the stand. Defendant Maybee's counsel then requested that the jury be removed and objected to the testimony of codefendant Henry being presented in front of the jury. The trial court ruled that his testimony would be heard in the absence of the jury without prejudice to the right of the plaintiff to reopen proofs and to endorse Henry as a witness against defendant Maybee. Henry then testified on his own behalf in the absence of the jury. His testimony placed the entire blame for the stabbing death of Mr. Baltz on the defendant Maybee. The prosecutor in the absence of the jury conducted a cross-examination of Henry in which he established many inconsistencies in his testimony and conflicting statements with reference to many of the details of the events of the evening in question.

Then, knowing full well the conflicting statements and inconsistencies in Henry's testimony, the prosecutor moved to reopen proofs and called him as a witness for the prosecution in defendant Maybee's jury trial. This defendant's trial counsel objected but the court ruled that since Henry had taken the stand in his own defense he had waived his privilege against self-incrimination.

In the presence of the jury Henry reiterated his prior statements that he was free from blame and that defendant Maybee was responsible for the stabbing death of the deceased. Here the prosecutor studiously avoided any reference to any inconsistencies or conflicts in Henry's testimony. Defendant Maybee's trial counsel, however, did his best to bring out by cross-examination all of the inconsistencies of Henry's testimony as it conflicted with prior testimony of other witnesses. It is important to note, however, that the effectiveness of this cross-examination was largely diminished because the jury had not heard the testimony of Detective Sergeant Johnston who testified in the absence of the jury and whose testimony particularly weakened the credibility of Henry.

Defendant Maybee's case was submitted to the jury on instructions permitting a finding of guilty of second-degree murder or manslaughter. These instructions did not include a cautionary instruction on accomplice testimony. However, defendant Maybee did not request such an instruction nor was there any objection to its omission. The trial court did, however, charge the jury to weigh the credibility of each witness. Subsequent to sentencing, the defendant filed a motion for new trial based upon an affidavit of codefendant Henry that he had committed perjury in his testimony that defendant Maybee had stabbed Mr. Baltz.

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO GIVE SUA SPONTE A CAUTIONARY JURY INSTRUCTION CONCERNING THE CREDIBILITY OF ACCOMPLICE TESTIMONY?

The general rule is that where the defendant neither makes a request for a jury instruction nor makes any objection to the jury charge as given, this issue is waived and cannot be raised for the first time upon appeal unless a manifest injustice has occurred. People v. Duerson, 35 Mich.App. 223, 192 N.W.2d 309 (1971); People v. Edwards, 35 Mich.App. 233, 192 N.W.2d 382 (1971); People v. Ely, 35 Mich.App. 390, 192 N.W.2d 662 (1971); People v. Timmons, 34 Mich.App. 643, 192 N.W.2d 75 (1971); People v. Lewis, 26 Mich.App. 290, 182 N.W.2d 86 (1970); GCR 1963, 516.2; M.C.L.A. § 769.26, M.S.A. § 28.1096; M.C.L.A. § 768.29, M.S.A. § 28.1052.

This Court in People v. Billings, 19 Mich.App. 348, 172 N.W.2d 494 (1969), specifically held that failure to instruct the jury to weigh the testimony of the defendant's accomplice with caution was not error. Billings, Supra, cited with approval People v. Sawicki, 4 Mich.App. 467, 145 N.W.2d 236 (1966), and People v. Zesk, 309 Mich. 129, 132, 14 N.W.2d 808 (1944). Zesk, Supra, is similar to the instant case in that the accomplice there also had manifested prior statements contrary to his testimony at trial. A cautionary instruction as to accomplice testimony was not given. In holding that this did not constitute error the Court quoted the following from 1 Gillespie, Michigan Criminal Law & Procedure, § 379:

'The credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and it is well settled that a jury may convict on such testimony alone, and it is not error for the court to refuse to charge that it is not safe to convict a defendant, on the uncorroborated testimony of an accomplice.'

This passage now appears in 1 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 488, p. 600. It has gained judicial acceptance through Billings and Sawicki, supra, as the applicable rule with regard to cautionary jury instructions on accomplice testimony.

This was a joint trial. What was said in People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784, 788 (1967), is particularly applicable:

'Whenever defendants are jointly tried, it is of utmost importance that the rights of each defendant be carefully protected by the trial judge.'

It is the defendant's position that this passage requires the trial judge to give a cautionary instruction regarding the testimony of the accomplice Henry. The judge gave ample instructions on credibility of a witness and the weight and value to be given to a witness's testimony even though he did not go into the specific issue of warning instructions on the dangers of accomplice testimony.

Further, in this case there was other testimony which tended to implicate defendant Maybee in the crime. Also, in United States v. Finazzo, 288 F.2d 175 (CA 6, 1961), cert. den., 368 U.S. 837, 82 S.Ct. 37, 7 L.Ed.2d 38 (1961), the Court said:

'There are numerous cases stating that it is the better practice for the trial judge to caution the jury against reliance upon the testimony of an accomplice and against giving credence to such testimony in the absence of corroborating evidence. However, it is also well settled that failure of the trial judge to so instruct the jury is not reversible error.'

See also United States v. George, 319 F.2d 77 (CA 6, 1963).

It is quite clear, according to the case law, that the trial judge did not commit error in failing, Sua sponte, to give a cautionary instruction on accomplice testimony where none was requested and there was no objection to the jury charge. An inquiry must now be made, however, to see if a manifest injustice has occurred. If the defendant has been denied a fair and impartial trial, then his argument will be heard for the first time on appeal. This question is examined in the context of the second issue.

II. DID THE TRIAL COURT COMMIT...