People v. Mosden
| Decision Date | 03 February 1969 |
| Docket Number | No. 6,6 |
| Citation | 164 N.W.2d 26,381 Mich. 506 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Henry MOSDEN, Defendant and Appellant. |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for plaintiff and appellee.
Henry Mosden, pro se.
Before BRENNAN, C.J., and DETHMERS, KELLY, BLACK, KAVANAGH, SOURIS and ADAMS, JJ.
Defendant Mosden and another were tried together and convicted of armed robbery. This is defendant Mosden's appeal, on leave granted, from Court of Appeals denial of application for delayed appeal from recorder's court of the city of Detroit denial of his application for leave to file a delayed motion for new trial.
Defendant mentions, sketchily in his brief, that police officers were permitted to testify concerning exculpatory statements made by him shortly after his arrest. He claims that this testimony should have been excluded because he had not been apprised of his constitutional rights to remain silent, to assistance of counsel, etc. He makes the kind of argument which is based on Escobedo, 378 U.S. 478, 84 S.Ct. 1758; 12 L.Ed.2d 977 and Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, having application only to inculpatory statements. Defendant was represented by counsel at trial, but no objections were made to reception of this testimony. The trial occurred in January of 1964 before the decision in Escobedo, on June 22, 1964, and the Miranda decision, on June 13, 1966. Those decisions were not retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. We cannot reverse on this ground.
In connection with consideration of the application for leave to appeal here, attention was directed to a claim that the people were allowed to introduce into evidence written reports of the police officers' surveillance of defendants before and at the time of the robbery, prepared by the officers after the fact from fragmentary notes made during the surveillance but subsequently destroyed. This bears resemblance to facts in the case of People v. Hobson, 369 Mich. 189, 119 N.W.2d 581. Defendant's brief now before us on this appeal makes no motion of this point, however, so we may conclude he has abandoned it. Furthermore, while in Hobson the surveillance reports were introduced into evidence, that does not appear to have occurred here, but the notes were used only to enable the police officers while testifying, to refresh their recollections. Ground for reversal is not presented in this connection.
Defendant's brief is chiefly devoted to a discussion of evidentiary matters and conflicts of testimony. Defendant styles his conviction as one based on circumstantial evidence, and offers, for the benefit of this Court, a jury argument as to why he ought not to have been found guilty under the evidence. Determination of the factual questions was definitely a function for the jury, not the trial court on motion for new trial nor this Court on appeal. We find there was testimony which, if believed by the jury, as it apparently was, warranted a finding of defendant's guilt beyond a reasonable doubt. We cannot reverse on this ground.
A more serious question is presented in connection with denial of defendant's delayed motion for new trial or application for leave to file a delayed motion therefor. Whichever it may be termed, it was based in part on a claim of newly discovered evidence. It was predicated on an affidavit of a Jackson State prison inmate, named Blackwell, in which the latter confessed commission of the robbery in question and completely absolved defendant from any participation therein.
On March 2, 1966, a hearing was held before a recorder's court judge on the motion. Defendant was represented by court-appointed counsel. That attorney requested the opportunity of subpoenaing witnesses for defendant, including Blackwell. The request was refused and the hearing proceeded as on a motion for new trial. Police officers testified to discredit Blackwell's affidavit on the grounds that Blackwell's story was not complete, that he was a person of low moral character who could readily confess a crime he had not committed and in their opinion he was not worthy of belief. There is no evidence that he knew defendant or that, at the time of making the statement, knew defendant had been convicted of the crime, or that he had any reason to be for defendant. The police officers' testimony did not refute any specific facts or allegations in Blackwell's affidavit.
In Townsend v. Sain, 372 U.S. 293, pp. 312--313, 83 S.Ct. 745, p. 757, 9 L.Ed.2d 770, the United States Supreme Court said:
'* * * We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.'
Under the above from Townsend v. Sain, supra, it seems clear that upon denial of further relief in this case in State courts, a Federal court, on application for habeas corpus, would be constrained to do what the trial court in this case did not do, namely, permit a full and fair hearing on Blackwell's confession and absolving of defendant, with defendant permitted to bring in Blackwell as a witness to testify on the subject. For us to require less would hardly square with due process or the holding in Townsend, supra.
We are not unaware of the decision of this Court in People v. Czarnecki, 241 Mich. 696, 217 N.W. 781, handed down in 1928, long before the 1963 decision of the United States Supreme Court in Townsend v. Sain, supra. Czarnecki is, at all events, distinguishable from the instant case in that there the defendant did not, as here, seek to have the absolving prison inmate brought into court to testify...
To continue reading
Request your trial
-
People v. Moss
... ... In conducting this review the appellate court must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v. Mosden, 381 Mich. 506, 510, 164 N.W.2d 26 (1969). In determining the facts the jury may draw reasonable inferences from the facts established by either direct or circumstantial evidence. People v. Weyonen, 247 Mich. 308, 311, 225 N.W. 552 (1929) ... 'Juries, not appellate courts, see and hear ... ...
-
People v. Herbert
...255 (1963) (opinion of O'Hara, J.); Kalamazoo Co. Rd. Comm'rs v. Bera, 373 Mich. 310, 314, 129 N.W.2d 427 (1964); People v. Mosden, 381 Mich. 506, 510, 164 N.W.2d 26 (1969); People v. Jackson, 390 Mich. 621, 625, n. 2, 212 N.W.2d 918 (1973); People v. Palmer, 392 Mich. 370, 375-376, 220 N.W......
-
People v. Smyers
... ... 'In conducting this review the appellate court must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v. Mosden, 381 Mich. 506, 510, 164 N.W.2d 26 (1969).' People v. Palmer, 392 Mich. 370, 375, 220 N.W.2d 393, 395 (1974) ... The jury's determination that defendant was a coconspirator rather than a police informant cannot be upset where sufficient evidence to support a finding of guilt ... ...
-
People v. Patskan, 9
... ... 6 See United States v. Wade, Supra, at p. 241, 87 S.Ct. 1926, for the test to be applied at this hearing. For examples where our Court has remanded for an evidentiary hearing, see, People v. Mosden ... ...