People v. McKee, Docket No. 2548
| Decision Date | 10 July 1967 |
| Docket Number | Docket No. 2548,No. 2,2 |
| Citation | 7 Mich.App. 296,151 N.W.2d 869 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy Agee McKEE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Anthony Renne, Bloomfield Hills, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for appellee.
Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.
Defendant was charged with the crime of rape under C.L.S. 1961, § 750.520 (Stat.Ann.1954 Rev. § 28.788). Following jury trial in which defendant was represented by retained counsel, he was found guilty. Defendant, with new counsel, filed a motion for a new trial which was denied by the court and appeal followed.
Assignments of error on the denial of a motion for a new trial relate largely to the conduct of the trial. Specifically, counsel claims that the trial was not a fair and impartial trial by jury, affidavits being filed alleging that defendant's wife knew jurors 8 and 5; that defendant's brother-in-law knew juror 8 and juror 8's son; that defendant's mother-in-law knew juror 8; and that defendant's father-in-law knew juror 8. They further allege that juror 8 failed to reveal that she knew these relatives of defendant and further did not reveal the fact that she knew the location of a certain street in the city of Keego Harbor.
The usual question presented by such facts is whether a social relationship of a juror with one or more non-party witnesses in the case is of sufficient import to decide that a jury was not fair, unbiased, impartial and unprejudiced. However, as stated in 11 A.L.R.3d, p. 860, we actually have a two-pronged problem:
'One question that arises then is whether the fact that the potential juror had either a social or business relationship with a non-party witness in the case will affect the former's judgment in weighing the testimony of the witness, particularly where there may be a conflict between the testimony of that witness and the testimony of another witness.'
Determinative in the instant case is the further question explored in the above annotation, 'Whether the latter (the defendant) has in some way waived his right to object to the juror in question'.
The trial judge, in ruling on this specific point in his denial of a new trial, stated, 'The defendant and defendant's privately retained counsel had knowledge of the alleged relationship between 2 of the jurors and failed to challenge said jurors for cause, did not exhaust peremptory challenges, and did not object to the court until after an unfavorable verdict'.
It is defendant's affidavit itself which supports this finding. In it he states that during the empaneling of the jury he was advised by his wife that she was acquainted with jurors number 5 and 8. He was also informed by his wife that both of the said jurors 'were liable to be prejudiced against him'. Defendant's affidavit continues, 'that he advised his attorney of such facts * * * but that his attorney * * * did not seem to pay any attention to the advice that defendant had given * * *.'
The record in the instant case shows that though defendant and his counsel were aware that defendant's family had some acquaintanceship with jurors number 5 and 8, they failed to object to the seating of these 2 jurors until after an unfavorable verdict. The record further reveals a tenacious defense by defendant's counsel. There is every reason to believe he exercised his professional judgment in order to obtain a jury as sympathetic as possible to his client.
The record amply supports the conclusion that this was a deliberate trial tactic. As stated in Henry v. State of Mississippi (1965), 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408:
'(C)ounsel's deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim in the state courts or here'.
On the other points raised by defense counsel, we are satisfied that no error exists. The...
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