People v. Medcoff

• Decision Date: 01 December 1955
• Docket Number: No. 86,86
• Citation: 344 Mich. 108,73 N.W.2d 537
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. LaVone MEDCOFF and Mack Myers, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 537

73 N.W.2d 537

344 Mich. 108

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. LaVone MEDCOFF and Mack Myers, Defendants-Appellants.

No. 86.

Supreme Court of Michigan.

Dec. 1, 1955.

Maile & Leach, Detroit, and Herman F. Lande, Flint, Marvin W. Reider, Detroit, of counsel, for appellants.

Thomas Kavanagh, Atty. Gen., Edmund Shepherd, Sol. Gen., Lansing, Jerome F. O'Rourke, Pros. Atty., Genesee County, Robert A. Steadman, Asst. Pros. Atty., Genesee County, Flint, for appellee.

Before the Entire Bench.

BUTZEL, Justice.

LaVone Medcoff and Mack Myers were found guilty of aiding, assisting and abetting in keeping and maintaining a gambling room, and knowingly assisting in keeping and occupying a common gambling house at 830 1/2 Leith street in the city of Flint, Michigan, contrary to C.L.1948, § 750.303 Stat.Ann. § 28.535; C.L.1948, § 750.302, Stat.Ann. § 28.534. They have appealed from a denial of their motion for new trial and fundamentally raise but one question. The record points overwhelmingly to their guilt and it is not claimed that the verdict of the jury is against the great weight of the evidence.

On the initial day of the three day trial before a jury the first three witnesses for the State seemed to be suffering from amnesia of some sort. One witness, who lost the money he had in his pocket as well as the proceeds from cashing his pay check and who summoned the police, claimed he could not positively identify the defendants. The other two gave testimony of like purport. Another witness cashed his pay check at the gambling house. The judge was so exasperated that he ordered their arrest on grounds of perjury after they had finished their testimony. The trial continued with the testimony of other persons apprehended in the raid some of whom had their bail bonds furnished and fines paid by unidentified persons. It is evident that the court had to cope with a very difficult situation.

On the second day of the trial one of defendants' attorneys, not among those who now represent them on appeal, stated that he had received information from a 'very reliable source' and 'from a member of the jury' that some members of the jury knew of the court's commitment of the three witnesses for perjury. He was of the opinion that they had probably obtained this information from the lical newspaper. He asked that a mistrial be declared because of possible prejudice to the defendants. The court denied the motion and after the attorney said that it was the duty of the court to examine the jurors, the court stated:

'I will take care of it at the proper time.'

'At the conclusion of the testimony of Marvin Anderson, in the above entitled cause, and after a recess had been announced, and all persons excluded from the courtroom, other than the Court Reporter and Jury, the following occurred:

'The Court: There has been a serious accusation made against some members of this jury in this matter. It has been reported some members of this jury have been talking about this case in the hall, some member of this jury has talked to Louis McGregor relative to this case.

'Juror No. 11: I talked with Louis McGregor this morning, but not concerning this case.

'The Court (to juror): You did not say anything concerning the case?

'Juror No. 11: I did not say concerning the case.

'The Court: If he said that he is wrong?

'The Juror: I did not say anything about the case.

'The Court: I warned you people in the first place to you were not to talk with the attorneys or anybody else here. I don't know why you cannot follow your instructions. It has been reported that you talked to Mr. McGregor; Mr. McGregor reported you discussed this case with him.

'The Juror: I remember I said something of the case; I did not talk much about it.

'The Court: How much did you discuss about it?

'The Juror: He asked me what kind of a case it was. I said a gambling case.

'The Court: That is all you said?

'The Juror: Yes.

'The Court: You are sure of it?

'The Juror: Yes.

'The Court: None of the rest of you discussed this matter at all with anyone? (Jurors answer 'No.')

'The Court: You are sure that is the only thing you said to Mr. McGregor?

'Juror No. 11: That is all this morning.

'The Court: You did not say anything about any matters that occurred here or any matters that you heard here?

'The Juror: No, sir.

'The Court: All right. Now, remember, I told you you were not to discuss this matter with anyone, or allow anyone to discuss it with you, or read anything in the newspapers or anything else. That is final. In other words, of course, you know the case is decided upon testimony given upon the witness stand, and any conversation with any one else you are not supposed to receive, any information except what goes on from the witness stand. This is the first time in Flint that there has been an accusation concerning any errors of that kind in this Court. It is for the Court's protection in the matter.

'Juror No. 3: We are not supposed to say anything about it to our families?

'The Court: Do not even discuss it among yourselves. Before discussing any case you are sitting on, wait until you get all through, and you just decide it upon what is here.'

The relationship, if any, between this inquiry and the previous motion for mistrial is not at all clear. However, it is a fact that neither the defendants nor their counsel nor the prosecuting attorney were present during the proceeding. It is not apparent whether the exclusion from the courtroom of 'all persons' meant the public as well, but such is not pertinent to the basis of our decision.

It is counsels' contention that defendants' constitutional right to a 'public trial' was abridged by the court's investigation of the jury. While fundamental to a criminal proceeding the 'public trial' guarantee is concerned with the presence of the public in general and should not be confused in specific application with the right to trial by jury and its derivative rights such as the presence of the accused. The accused is not necessarily the 'public' referred to but his presence is required by other rights secured to him in the same constitutional provision. If the order of exclusion included the public in this case, and apparently it did, it could be that the 'public trial' guarantee would be an issue. However, counsels' argument revolves solely around the absence of the defendants. While, because of their common and fundamental end, the two rights may in some cases overlap, we do not consider the right to a 'public trial' as being involved in this case and counsels' rather unique argument in that regard is not the basis for our decision. Rather, we are concerned with the right of trial by jury and its concomitant, the right of an accused to be present at such trial.

The Constitution of the State of Michigan 1908, Article II, § 19, guarantees to an accused in every criminal prosecution the right of a trial by an impartial jury. By statute, C.L.1948, § 768.3, Stat.Ann. § 28.1026:

'No person indicted for a felony shall be tried unless personally present during the trial; persons indicted or complained against for misdemeanors may, at their own request, through an attorney, duly authorized for that purpose, by leave of the court, be put on trial in their absence.'

Defendants herein were tried and convicted of misdemeanors. While some jurisdictions have distinguished between one accused of a felony or capital crime and one accused of a misdemeanor or non-capital crime for purposes of this right, we think the fair implication of this statute is that a misdemeanant punishable by a maximum sentence of two years in the State prison as well as a felon is entitled to be present. The aforementioned right to trial by an impartial jury, from which the right to be present is derived, applies to 'every criminal prosecution.'

The United States Supreme Court in Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 137, 36 L.Ed. 1011, a case upholding the ritht of a defendant to be present when jurors are challenged, said:

'A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner.'

In Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S.Ct. 202, 204, 28 L.Ed. 262, the court; under a statute of the territory of Utah similar to that in Michigan, above quoted, condemned the practice of trying challenges for bias of juror out of the presence of the accused, saying:

'The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.'

Later decisions of the Supreme Court may have limited somewhat certain statements made in the Hopt and Lewis cases, supra, see Howard v. Commonwealth of Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421; Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969, but they have been concerned with 'due process' principles and have recognized the distinction which must be drawn between common law requirements of trial by jury and that which the States might enact or countenance without contravening the 14th Amendment 'due process' requirement. In Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, while majority and dissent disagreed as to whether 'due process' required the presence of the accused at a view by the jury of the scene of the crime, both agreed that ...