People v. Moreland

• Decision Date: 25 July 1968
• Docket Number: No. 3,Docket No. 2546,3
• Citation: 163 N.W.2d 257,12 Mich.App. 483
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Richard MORELAND, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 257

163 N.W.2d 257

12 Mich.App. 483

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Richard MORELAND, Defendant-Appellant.

Docket No. 2546.

Court of Appeals of Michigan, Division No. 3.

July 25, 1968.

Released for Publication Jan. 3, 1969.

Gordon H. Kriekard, Kalamazoo, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for appellee.

Before HOLBROOK, P.J., and BURNS and GILLIS, JJ.

GILLIS, Judge.

On September 17, 1963, the defendant, John Richard Moreland, was convicted by a jury of breaking and entering in the night time with intent to commit larceny. ¹ The information further charged that 'said offense hereinabove charged is hereby charged as a fourth offense,' ² and thereupon recited three alleged prior convictions of the defendant.

Before the selection of the jury and in the absence of the veniremen, the defendant's counsel objected to a procedure in which the jury would be informed of the prior convictions. Defendant claimed that the jury should first determine his guilt on the breaking and entering charge and then, if he was found guilty of that charge, be called back to determine whether or not he was guilty as a fourth offender. The court declined to follow this procedure and thereupon the defendant entered what was termed a 'plea of guilty' to the 3 prior convictions alleged in the information. The court then ruled that unless the defendant elected to take the stand, the prosecutor would be prohibited from introducing any evidence pertaining to the defendant's prior convictions. A jury conviction resulted and the trial court thereafter sentenced the defendant to be placed on probation for a 5-year period.

Approximately 1 1/2 years later the defendant was brought before the court as a probation violator, the defendant's probation was revoked and he was sentenced to serve a prison term of 20--30 years. Application for delayed appeal was granted by this Court.

A major issue in this appeal concerns a newspaper article which appeared in the Kalamazoo Gazette on September 13, 1963. The trial had begun the previous day, but due to certain preliminary matters, the jury was not impanelled until the 13th. The article was captioned 'Man Faces Fourth Offense Trial' and read in full as follows:

'John R. Moreland, 36, of 447 W. Walnut, today faced a Kalamazoo circuit court jury, charged with breaking and entering in the nighttime and as a fourth offender.

'Judge Raymond W. Fox Thursday denied a motion for continuance (postponement) presented by Moreland's attorney John Vlachos. Vlachos agreed to handle Moreland's case Tuesday. Prior to that time, Fred Sauer, Sr., had provided counsel.

'Vlachos argued that continuance was necessary to permit him to acquaint himself with Moreland's situation.

'John L. Schwendener, county prosecutor, opposed the motion, saying that Vlachos provided no testimony or affidavits to support the continuance request.

'Moreland will stand trial for the March 18, 1960, burglary of the Comstock Beer Store.

'The trial is being held at this time because Moreland served about two years in an Indiana prison for another 1960 burglary. He was released less than a year ago.

'Moreland remains free on $10,000 bond. His trial is scheduled to begin Friday. If convicted, he faces a possible life sentence.'

The next trial date was September 17, 1963, at which time defense counsel, out of the presence of the jury, informed the trial judge of this article and made a motion to reserve the right to 'poll' the jurors after verdict concerning whether any of them had read the story and been influenced by it. This motion was denied and counsel explicitly refused to move for a mistrial.

It appears that after the trial two jurors approached defense counsel concerning the newspaper article. Each of them later made an affidavit which stated that the contents of the article were disclosed and discussed in the jury room during the deliberations.

The prosecution's position in this appeal is that, since there was no motion for mistrial or request for the court to examine the jurors as to their knowledge of the article's contents, the question was not properly saved for review. Chief reliance is placed upon the concurring opinion in People v. Nick (1960), 360 Mich. 219, 103 N.W.2d 435. While we are in full agreement with the propriety of the rule that questions will not be heard on appeal unless first presented for the trial court's determination (Haggerty v. MacGregor (1968), 9 Mich.App. 671, 158 N.W.2d 33), we note that an exception exists when to apply the rule would result in 'fundamental injustice.' ³ In our opinion this case comes within the exception. The story relates the fact of at least one prior conviction and supports a clear inference that defendant had been convicted of crime on two additional occasions. Evidence of such convictions would normally have been admissible at trial only if defendant had testified in his own behalf, and then for the limited purpose of impeachment. Defendant, however, did not take the stand. Since the newspaper article's existence and contents had not been brought out before the jury in open court, there was no charge given as to the narrow purposes for which the contents could have been considered, even if the contents were proper matter for disclosure in this case. It was therefore a matter of fundamental injustice to defendant that the jury, in weighing guilt, discussed and considered his prior convictions.

Having decided that the matter concerning the article is properly before us, we must next determine whether the jurors' affidavits should be considered in this regard. On the motion for new trial, the prosecution repeatedly asserted that the affidavits were not admissible, as well as that the defense had not preserved the objection for review. The opinion of the circuit court judge indicates that the basis for denial of the motion was 'the defendant has waived any right in my opinion to raise the question at this time.' Though the judge gave a good deal of attention to the admissibility problem, he did not think it necessary to rule upon it.

Defendant's contention that the affidavits are admissible is based on two cases People v. Van Camp (1959), 356 Mich. 593, 97 N.W.2d 726; Mattox v. United States (1892), 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917.

First, the Mattox Case. Because a clear understanding of that case is crucial to our own, extended quotation is necessary (pp. 147--149, 13 S.Ct. p. 52):

'In U.S. v. Reid, (53 U.S. 12 How., 361, 366, 13 L.Ed. 1023, 1025), affidavits of two jurors were offered in evidence to establish the reading of a newspaper report of the evidence which had been given in the case under trial, but both deposed that it had no influence on their verdict. Mr. Chief Justice Taney, delivering the opinion of the court, said: 'The first branch of the second point presents the question whether the affidavits of jurors impeaching their verdict ought to be received. It would perhaps hardly be safe to lay down any general rule upon this subject. Unquestionably such evidence ought always to be received with great caution, but cases might arise in which it would be impossible to refuse them without violating the plainest principles of justice. It is, however, unnecessary to lay down any rule in this case, or examine the decisions referred to in the argument, because we are of opinion that the facts proved by the jurors, if proved by unquestioned testimony, would be no ground for a new trial. There was nothing in the newspapers calculated to influence their decision, and both of them swear that these papers had not the slightest influence on their verdict.' The opinion thus indicates that public policy, which forbids the reception of the affidavits, depositions, or sworn statements of jurors to impeach their verdicts, may, in the interest of justice, create an exception to its own rule, while at the same time the necessity of great caution in the use of such evidence is enforced.

'There is, however, a recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict.

'This distinction is thus put by Mr. Justice Brewer, speaking for the Supreme Court of Kansas in Perry v. Bailey, 12 Kan. 539, 545: 'Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because, being personal, it is not accessible to other testimony. It gives to the secret thought of one the power to disturb the expressed conclusions of twelve. Its tendency is to produce bad faith on the part of a minority; to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors. If one affirms misconduct, the remaining eleven can deny. One cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Under this view of the law, the affidavits were properly received. They tended to prove something which did not essentially inhere in the verdict,--an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one.'

'The subject was much considered by Mr. Justice Gray, then a member of the Supreme Judicial Court of Massachusetts, in Woodward v. Leavitt, 107 Mass. 453, where numerous authorities were referred to and applied, and the conclusions announced, 'that on a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors, as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence,...