People v. Miller
| Decision Date | 17 January 1979 |
| Docket Number | Docket Nos. 77-824,77-939 and 77-945,77-825 |
| Citation | 276 N.W.2d 558,88 Mich.App. 210 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dujuan MILLER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael DAVIS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin EWING, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., William A. Wertheimer, Jr., Timothy C. Scallen, Asst. Pros. Attys., for plaintiff-appellee.
Before ALLEN, P. J., and MAHER and TOWNSEND, * JJ.
Defendants Miller, Davis and Ewing were each charged with one count of felony murder, M.C.L. § 750.316; M.S.A. § 28.548, and three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. The three defendants were represented by separate counsel, but were tried jointly. A recorder's court jury found defendants Miller and Davis guilty as charged, and found defendant Ewing guilty of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and one count of armed robbery. All defendants received life sentences on each count on which they were convicted. All three defendants appeal and these appeals have been consolidated.
The charges stem from an armed robbery of the Pixie Restaurant in Detroit on August 11, 1976. Testimony and evidence at trial indicated that defendants Miller and Davis entered the restaurant and robbed at gunpoint William Beneson, Robert Tompkins, and Edward Cornwall. As Miller and Davis were leaving, Miller fired a shot which killed Beneson. Defendant Ewing provided Miller with the weapon and waited in a car outside the restaurant. The car was driven by David Lyles, a friend of the defendants who was paid $3 by Miller to drive defendants to the restaurant and wait for them. After dropping them off, Lyles drove off with Ewing without waiting for Miller and Davis. Lyles was at one point arrested, but he was never charged with the crime.
Tompkins testified that Davis was one of the robbers, but was not sure if Miller was the other. Cornwall identified both Miller and Davis as the robbers. Pierr Harris, who knew both Miller and Davis, testified that she was near the Pixie Restaurant at the time of the crime, heard a shot, and saw Miller and Davis running from the restaurant. Lyles testified that after the robbery Miller had said that he killed Beneson. Confessions made by each defendant were On appeal defendants raise a plethora of issues, three of which merit special attention. The remaining may be disposed of summarily. When necessary, additional facts will be developed.
admitted at trial, but none of the defendants testified. Miller called two witnesses in defense who contradicted the testimony of Harris. Other than that, the defense consisted of attacking prosecution witnesses.
Each defendant claims due process was violated and reversible error was committed because the trial judge selected the jury by, what we shall call, the "struck jury" method. Seventy-three members of the jury panel were identified and selected as prospective jurors. All defense counsel were given an opportunity to examine the juror sheets on the morning of the jury selection. None took advantage of the opportunity. Nor did any of the defense counsel submit questions for voir dire. The trial court itself questioned the jurors collectively and, at times, individually. After the court's voir dire, defense attorneys and the prosecutor were permitted to exercise their challenges on a rotating basis. The panel was reduced to 11 persons at which time 38 additional prospective jurors were seated and questioned. The procedure was repeated until 14 jurors remained. No juror was excused for cause. Miller and Davis each exhausted their 20 peremptory challenges and Ewing used 19 of his. 1
Defendants contend that this procedure violated GCR 1963, 511.6 and infringed upon the exercise of their peremptory challenges. The only specific claim of prejudice made by any of the defendants is that they could not keep track of the responses of the individual panel members. On the facts of this case we do not find reversible error.
We cannot accept the contention that defense counsel could not keep track of the responses of the prospective jurors. The struck jury method has been used and continues to be used in other jurisdictions and the attorneys there handle the situation. Nor do we find that the technical violation of GCR 1963, 511.6 mandates reversal. GCR 1963, 511, which provides for the impaneling of jurors, was designed with the usual method of starting with a panel of 12 prospective jurors in mind. Therefore § 6 of the rule becomes important in order to insure that the effect of subsequent challenges will not be diluted by exercising them on a diminishing panel, and then having the members replaced with persons even less desirable. Under the instant method this problem never arises because counsel know from the start and can decide even before their first challenge all of the individuals they wish to challenge. Hence, the purpose behind GCR 1963, 511.6 was achieved here. With the exception of § 6, the struck jury method used here was in compliance with all of the other requirements of GCR 1963, 511.
The evidence against defendants was overwhelming. In this case we do not find a miscarriage of justice and reversal is unwarranted. M.C.L. § 769.26; M.S.A. § 28.1096. In addition, defense counsel were informed by the trial court a month before trial that the struck jury method would be used and no objection was made until the first day of selecting the jury. Although the use of the struck jury method did not warrant reversal in this case, our opinion
should not be read as an endorsement of the method. Our Supreme Court has provided for a method of impaneling a jury, and the surest way of avoiding error, particularly in the sensitive area of a defendant's right to a jury trial, is to follow the accepted method.
Defendant Miller gave a false confession which exculpated him but inculpated both defendant Davis and defendant Ewing. Davis and Ewing were quickly arrested and they each confessed, but they incriminated defendant Miller. In the face of the contradiction between his statement and those of Davis and Ewing, Miller gave another confession which incriminated himself as well as Davis and Ewing. Except for Miller's first confession, all of the confessions described the same crime and events. There is no question that all defendants received full Miranda rights before any statements were given, and Miller received his rights twice, once before each of his confessions. All four of the confessions were introduced at trial.
On appeal it is contended that Miller's initial confession was given following an arrest made without probable cause. The police investigation of the crime continued over a month before defendant Miller was arrested. During this time many people were questioned about the crime and the name "Pops" came up several times in relation to the crime. Descriptions (but no names) of the robbers were obtained from Pierr Harris. Eventually the police learned that defendant Miller was known as "Pops" and they went to his home to question him. When the police met Miller they realized he matched very closely the description given by Harris. At that point Miller went with them to the police station where he made his first statement.
Whether or not Miller was actually arrested before he made his first statement, the police would have had sufficient probable cause to arrest him. The information available to the police while at Miller's home gave them "reasonable cause to believe" that defendant committed the crime. M.C.L. § 764.15(d); M.S.A. § 28.874(d). People v. Green, 70 Mich.App. 311, 245 N.W.2d 730 (1976), Lv. den. 399 Mich. 855 (1977). Consequently, Miller's first statement was not taken in violation of his rights, and the subsequent statements of Davis and Ewing were not fruits of a poisonous tree. Miller's second statement was also validly taken and admissible. In passing we also note that defendants Davis and Ewing could not have relied on any impropriety in procuring defendant Miller's confession, because the impropriety involved infringement of a Fourth Amendment right and cannot be asserted vicariously. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), United States ex rel. Wright v. Cuyler, 563 F.2d 627 (C.A.3, 1977). 2
Each defendant objected to the admission of his two codefendants' confessions because the confessions were, allegedly, prejudicial and violated their Sixth Amendment right to confront and cross-examine witnesses contrary to the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In the instant case, however, the confessions of each defendant had the names of any other defendant excised and replaced with John Doe # 1, # 2, or # 3 as needed. Additionally, instructions were given that the confessions were to be used only in relation to the particular confessing defendant. In a multiple-defendant trial, confessions may be admitted where "any reference to one of the other codefendants is deleted" without violating Bruton. People v. Macklin, 46 Mich.App. 297, 302, 208 N.W.2d 62, 65 (1973).
The deletion of codefendants' names would usually be sufficient to avoid Sixth Amendment problems, but in this case all of the confessions gave a similar story, and defendants claim the net effect of reading all three confessions was to indicate that the deleted names were the names of the codefendants. We do not reach defendants' contention because...
To continue reading
Request your trial
-
People v. Missouri
...of prejudice to substantial rights of the accused. People v. Carroll, 396 Mich. 408, 240 N.W.2d 722 (1976), People v. Miller, 88 Mich.App. 210, 222, 276 N.W.2d 558 (1979). Applying these factors to the case on appeal, we conclude that the trial judge did not abuse his discretion in denying ......
-
People v. Byrd
...will not reverse a trial court's decision concerning joint trials unless there has been an abuse of discretion. People v. Miller, 88 Mich.App. 210, 222, 276 N.W.2d 558 (1979), rev'd on other grounds 411 Mich. 321, 307 N.W.2d 335 (1981). There must be an affirmative showing of prejudice to s......
-
People v. Colon
...759 (1965), overruled on other grounds Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); People v. Miller, 88 Mich.App. 210, 217, n. 1, 276 N.W.2d 558 (1979), rev'd 411 Mich. 321, 307 N.W.2d 335 (1981).2 The jury selection procedure set forth in MCR 2.511 is not constit......
-
People v. Ferguson
...an affirmative showing of prejudice to substantial rights of either defendant. Thus a severance was not required. People v. Miller, 88 Mich.App. 210, 222, 276 N.W.2d 558 (1979), and the cases cited Nor do we find reversible error in the trial court's refusal to instruct on the lesser-includ......