People v. McIntosh, Docket No. 17295

CourtCourt of Appeal of Michigan (US)
Citation62 Mich.App. 422,234 N.W.2d 157
Docket NumberDocket No. 17295
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel Douglas McINTOSH, Defendant-Appellant.
Decision Date21 July 1975

Page 157

234 N.W.2d 157
62 Mich.App. 422
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Samuel Douglas McINTOSH, Defendant-Appellant.
Docket No. 17295.
Court of Appeals of Michigan.
July 21, 1975.
Released for Publication Oct. 21, 1975.

Page 159

[62 Mich.App. 426] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Appellate Chief, Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and V. J. BRENNAN and PETERSON, * JJ.


Defendant was charged by separate informations with the offenses of assault with intent to commit rape, M.C.L.A. § 750.85; M.S.A. § 28.280, and first-degree murder by killing one Henry Turner while perpetrating or attempting to perpetrate rape, M.C.L.A. § 750.316; M.S.A. § 28.548. The charges were consolidated for trial, resulting in defendant's conviction by jury of the crime of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553. He [62 Mich.App. 427] was sentenced to a term of ten to fifteen years imprisonment and appeals.

It was the People's theory that defendant assaulted one Dolores Ann Brantley with intent to commit rape and that when one Henry Turner came to her aid, defendant killed Turner by a blow to the face with a bottle. Defendant contended that Ms. Brantley, having solicited his companionship professionally, attempted to steal his money; that Turner came upon the scene and intervened in the belief that defendant was robbing Ms. Brantley; that after a brief struggle, defendant attempted to drive away but Turner was struck by the car and received his fatal injury in that fashion.

Defendant asserts various claims of error in the submission of the charges and in the jury instructions. There was no error in the jury instruction defining second-degree murder and manslaughter as lesser

Page 160

included offenses of the felony-murder charge. We do not agree with People v. Bufkin, 43 Mich.App. 585, 204 N.W.2d 762 (1972); People v. Bufkin (On Rehearing), 48 Mich.App. 290, 210 N.W.2d 390 (1973), and think the better rule is that stated in People v. Wimbush, 45 Mich.App. 42, 205 N.W.2d 890 (1973); People v. Edwards, 47 Mich.App. 307, 209 N.W.2d 527 (1973), and People v. Smith, 55 Mich.App. 184, 222 N.W.2d 172 (1974). Since there was evidence tending to support the lesser included offenses, the instruction was proper. People v. Carter, 387 Mich. 397, 197 N.W.2d 57 (1972). Cf. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973).

Neither was it error by the Court to refuse defendant's requests to instruct on the offenses of negligent homicide, M.C.L.A. § 750.324; M.S.A. § 28.556, and involuntary manslaughter with a motor vehicle as lesser included offenses of murder. Involuntary[62 Mich.App. 428] manslaughter with a motor vehicle must be specifically charged, and negligent homicide is only a lesser included offense of '. . . manslaughter charged to have been committed in the operation of any vehicle', M.C.L.A. § 750.325; M.S.A. § 28.557. See People v. Ryczek, 224 Mich. 106, 194 N.W. 609 (1923); People v. Jordan, 347 Mich. 347, 79 N.W.2d 873 (1956).

Nor was there error in the Court's submission of both the assault and the murder charge to the jury with an instruction that defendant could be convicted of both. The alleged assault with intent to rape Ms. Brantley was a different offense than the alleged attempted rape which was the felony of the charged felony-murder, People v. Gibbons, 260 Mich. 96, 244 N.W. 244 (1932). And both were different than the killing of Turner, upon which the murder charge was predicated. Even though the charges had common elements and involved proof of some of the same facts, there was no double jeopardy, People v. Stewart, 46 Mich.App. 282, 207 N.W.2d 907 (1973), and the matters were properly joined. People v. Andrus, 331 Mich. 535, 50 N.W.2d 310 (1951), People v. White, 390 Mich. 245, 212 N.W.2d 222 (1973).

Relying on People v. Aldridge, 47 Mich.App. 639, 209 N.W.2d 796 (1973), defendant claims error by the trial court's refusal to allow discovery of the prosecution's dossier on the jury panel. We do not concur with Aldridge, and think the better view is that expressed in People v. Stinson, 58 Mich.App. 243, 227 N.W.2d 303 (1975).

Defendant also asserts error in the course of trial in several particulars. It is claimed that defendant's right of cross-examination was erroneously limited when the Court sustained a prosecution objection to a question as to the street upon [62 Mich.App. 429] which the witness resided, citing Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), and Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). There was evidence, however, indicating that just prior to the cross-examination of this witness, she had been threatened by someone among the spectators in the courtroom. It was, thus, within the discretion of the Court to foreclose open court inquiry regarding the residence of the witness which might tend to endanger her personal safety. Smith, supra, at 134--135, 88 S.Ct. at 751, 19 L.Ed.2d at 960; People v. Paduchoski, 50 Mich.App. 434, 213 N.W.2d 602 (1973). And we note that defendant does not contend that the address of the witness was unknown to defense counsel.

During the examination of the mother of the deceased Henry Turner, the prosecutor asked the following question and received this answer:

'Q. Now, Ma'am, as a result of this particular incident involving your son, is it true that Mr. Turner got an award from the City Council?

'A. Yes, he did.'

Defendant promptly objected, without stating any ground therefor. The question was argued and the objection was properly sustained; evidence of the peaceful character of the deceased not being

Page 161

admissible in the prosecution's case in chief in anticipation of defense testimony of violent character supporting a plea of self-defense, People v. Dunn, 233 Mich. 185, 193, 206 N.W. 568 (1925), and this not being a proper means of proof of peaceful reputation in any event. Defendant does not contend that the ruling was inadequate to cure the error. Rather, he asserts that the Court should have declared a mistrial when, during the argument[62 Mich.App. 430] of the objection, the prosecuting attorney again referred to the award. However, defendant's reliance on Cachola v. Kroger Co., 32 Mich.App. 557, 189 N.W.2d 112 (1971), in support of his claim for a mistrial is misplaced, standing as it does for the proposition that the deliberate injection of prejudicial statements by counsel is misconduct warranting reversal.

Here, defense counsel 1 twice declined to have the jury excused before the objection was argued and called the prosecutor's reference to the award a lie. At this point, both the Court and prosecutor could well have taken defense counsel's general objection as going to the existence of the award. The prosecutor's response, which is the claimed basis for mistrial, was as follows:

'When Mr. Halpern says it's a lie, I have the document which I intend to introduce * * *. He received an award from the City Council, from Councilman Ernest Brown. * * * And it related to Mr. Turner's actions in trying to be a good citizen.'

The response was appropriate to counsel's categorization of the prosecutor's reference to an award as a lie and was not a case of deliberate prosecutorial misconduct. It is unfortunate that the response was made in the presence of the jury, but this was solely because defense counsel insisted on arguing the matter with the jury present. The trial court gave a careful instruction to the jury to disregard the matter, and that was all that defendant was entitled to, having prompted the statement in the presence of the jury. To allow the defense to create its own mistrial grounds would reduce trials to chaos, as might well have happened[62 Mich.App. 431] here on this and other occasions but for the patience of the trial judge.

Defendant raises other questions pertaining to the conduct of the trial which we do not find meritorious but shall note in our discussion of his claim that the trial judge was guilty of personal animus towards defense counsel, and hence (1) erred in refusing to disqualify himself, and (2) made a fair trial impossible. Some sharp comments and reprimands directed by the Court to defense counsel lends verisimilitude to these claims. At various points in the pretrial proceedings, the trial judge accused counsel of 'a con job', of being untruthful, of lying and being psychotic; the judge threatened counsel with contempt, jailed him, and again threatened to, and did, find him in contempt. But, those comments and reprimands must not be taken alone. A reading of the entire record discloses that counsel was rude, contumacious, dissembling and equivocating, often engaging in conduct which seemed to have been designedly intended to create error or cause the appearance of error.

Problems between Court and counsel persisted through a long and painful trial, but the events preceding the taking of testimony disclose the genesis of defense counsel's agitation of the Court. Defendant was arraigned on the murder charge on January 22, 1973, on which date a pretrial conference was set for February 1 and a trial date for March 20, 1973. At pretrial, defense counsel requested discovery only of police reports and indicated that no motions were to be filed. The assault case was assigned to the same trial judge and scheduled for trial the week after the murder case. In that case, defense counsel obtained a discovery

Page 162

order for the disclosure of the names of persons [62 Mich.App. 432] known to the complainant to be acquainted with a man, not a witness, for whom the complainant at preliminary examination claimed to have mistaken the defendant, leading to her entering defendant's car.

The events of March 19 and March 20...

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