People v. Nettles

• Decision Date: 30 May 1972
• Docket Number: No. 2,Docket No. 11620,2
• Citation: People v. Nettles, 199 N.W.2d 845, 41 Mich.App. 215 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William NETTLES, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 845

199 N.W.2d 845

41 Mich.App. 215

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William NETTLES, Defendant-Appellant.

Docket No. 11620.

Court of Appeals of Michigan, Division No. 2.

May 30, 1972.

Released for Publication Aug. 23, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. P.A., for plaintiff-appellee.

Before McGREGOR, P.J., and LEVIN and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

Defendant was sentenced to a term of life imprisonment on each count of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797 and conspiracy to commit armed robbery, M.C.L.A. § 750.157a; M.S.A. 28.354(1), after conviction following a jury trial concluded on March 17, 1971. This appeal was taken as of right following sentence by the trial court.

At trial, Alan McNamara testified that on September 10, 1970, he and four other men were watching television at the home of one Charles Ludorf residing at 722 Lyndon Avenue in the City of Flint. There was a knock at the door at approximately 9:00 P.M. and two men entered; one of them held a 'rifle-shotgun'. These men were subsequently identified as Ralph Brown and Walter Kimble. They asked McNamara and his companions to surrender their money and the request was complied with. Brown and Kimble then rambled through the house, picking up a tape recorder, a ring, a knife and a polaroid camera. Brown and Kimble fled after forcing McNamara and his companions to remove their trousers.

Both Kimble and Brown testified in the trial below. Before Walter Kimble testified the following colloquy took place in the absence of the jury:

'MR. BEKOFSKE (counsel for Kimble): * * *. Mr. Talkow (attorney for defendant at trial) has raised a point that perhaps should be on the record and that is the substance of the agreement that has been reached, and I am perfectly willing to pose it at this point for Mr. Talkow's elucidation as well as for the court.

'THE COURT: I don't see anything wrong with that.

'MR. BEKOFSKE: The prosecutor has agreed to reduce any and all charges arising out of this transaction in regard to Mr. Kimble and Mr. Brown to that charge known as larceny from a building, providing they testify and tell the whole truth in this proceeding against Mr. Nettles; that is the sum and substance of the agreement.

'THE COURT: Is that right so far as you know, Mr. Marroso?

'MR. MARROSO (Prosecuting Attorney): That is correct, your Honor.'

Kimble then went on to testify that he and Brown had entered the aforementioned dwelling and had committed the robbery in question; Brown had been carrying the shotgun. According to his testimony Brown, the defendant Nettles and he had decided and plotted to commit the robbery when they were at the Nettles' home at approximately 5:00 P.M. on the same day. This testimony continued to indicate that Nettles drove his car to the Lyndon Street address and waited on a nearby street while Kimble and Brown were in the house. They returned to the car after the robbery, and the defendant drove them away from the scene of the crime. As they were driving away from the scene, they spotted a police car which followed them for some distance down Pierson Road to Industrial Road at which point allegedly Nettles made a sharp turn to lose the police. When Nettles turned his car into the driveway of Kimble's aunt's home, the police pulled up into the next driveway and got out. Kimble's testimony was basically corroborated by Ralph Brown when he took the stand.

One of the police officers in that scout car testified that he and his partner had followed the Nettles' car because it was proceeding 'very slowly and quite suspiciously'. The officer testified that the operator of the car had turned left on Industrial Avenue without signalling and that he then pulled the vehicle over. He then testified that he observed a camera, a tape recorder and a ring in the back seat of the automobile when he shined his light in that direction. Allegedly, he then inquired of the occupants of the car as to the ownership of those articles. They all denied ownership of any of the articles. Upon further inspection this officer found a knife on the front seat of the automobile near the passenger's door. While this was going on, another police cruiser arrived and its occupants reported the robbery at 722 Lyndon and described the assailants in a fashion resembling Brown and Kimble. Nettles, Brown and Kimble were all arrested on suspicion of armed robbery.

The defendant denied on the witness stand that he had ever plotted with Brown or Kimble to perpetrate the robbery. He contended that he had been forced at knife point to drive Brown and Kimble to the home of the latter's aunt and that he was unaware of what had transpired before that. Two issues are raised by the defendant on appeal. The first issue raised by the appellant is 'whether the reward given co-conspirators for their testimony should have been properly brought out for the jury by the prosecution?' In light of our disposition of this issue, we will not mention nor discuss the second issue raised by the defendant since a discussion of such question would in our opinion not make any substantial contribution to the jurisprudence of this State.

It is conceded by the prosecutor in his brief on appeal which was filed just ten days prior to the arguments on appeal, that the prosecutor did not bring out on his examination of either Kimble or Brown the facts relative to their plea-bargaining arrangement. Further, in that brief he concedes that these witnesses under cross-examination denied receiving any promise in exchange for their testimony even though Kimble came close to an admission when he said that his lawyer discussed the matter with him, although the lawyer told him that he 'couldn't promise anything'. Also, in the appellee's brief it is stated unequivocally that the police officer in charge of the case under cross-examination as to any 'deal' made with Kimble responded that he had advised Kimble that he 'didn't know, 'that's up to the prosecutor's office and his attorney". He gave a similar response when questioned as to whether or not he had told Brown that a 'deal' had been made for him. There is no question that the prosecutor and the trial judge must have been and were aware of the fact that these were not truly stated factual recitations; that in fact there was an arrangement because it was so stated on the record outside of the presence of the jury. This was known to everybody but the jury which was the 'trier of the facts'. Yet, under our law the 'trier of the facts' is entitled to full information on matters pertaining to the credibility of witnesses, and in fact it is always argued by the prosecution and instructed by ...