People v. Parker, Docket Nos. 25307 and 25466

Citation257 N.W.2d 109,76 Mich.App. 432
Decision Date06 July 1977
Docket NumberDocket Nos. 25307 and 25466
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph H. PARKER and Philman Arthur Mitchell, Defendants-Appellants. 76 Mich.App. 432, 257 N.W.2d 109
CourtCourt of Appeal of Michigan (US)

[76 MICHAPP 436] Jack J. Garris, Ann Arbor, for Parker.

Parker & Clark, by E. Spaulding Clark, Ann Arbor, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., Robert L. Cooper, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., R. B. BURNS and QUINNELL, * JJ.

DANHOF, Chief Judge.

Defendants were charged with first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and, after a lengthy jury trial, they were convicted of second-degree murder, M.C.L.A. § 750.317; M.S.A. § 28.549. Each defendant was sentenced to a term of from 17 1/2 years to 30 years imprisonment, and now appeals by right.

The slaying occurred at the home of Harriet Shimko. Ms. Shimko was romantically involved with both the victim, Daniel Reddic, and defendant Parker. Reddick was a black man; Ms. Shimko and defendants are white.

[76 MICHAPP 437] On the evening of September 16, 1973, Mr. Reddic and Ms. Shimko had retired to the upstairs bedroom of Ms. Shimko's Ann Arbor townhouse when defendants Parker and Mitchell arrived. Mitchell was armed with a gun. After Parker observed Reddic and Ms. Shimko together in her bedroom and went back downstairs, Reddic went into the children's bedroom to call the police and to hide from defendants. Meanwhile, defendant Mitchell had come upstairs and determined that the stairway was "the only way out". After allowing David Hayes and Mary Bielecki (Ms. Shimko's live-in babysitter) to leave, defendant Parker returned upstairs and beat Ms. Shimko to force her to divulge where "that nigger" was. When Ms. Shimko finally revealed that Reddic was in the children's bedroom, defendant Parker relayed that information to defendant Mitchell. Mitchell went and checked the children's bedroom, then returned and informed Parker that Reddic was not there. Parker continued beating Ms. Shimko until she finally revealed that Reddic was in the closet in the children's room. Parker said something to Mitchell, and moments later Ms. Shimko heard several shots. She later found Daniel Reddic at the bottom of the stairs, dead or dying from a wound caused by a bullet that entered his left chest just above the nipple, passed diagonally downward, ruptured his heart, and exited through his lower right flank, indicating that he was shot from above.

The facts will be further stated as they relate to each of the several issues raised on appeal.

I

Defendants first contend that the trial court erred in setting aside their pleas of nolo contendere[76 MICHAPP 438] to second-degree murder and permitting the prosecutor to proceed against them on the original charge of first-degree murder. They contend that under People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973), the court having once accepted their pleas of nolo contendere to the lesser charge, the prosecutor was foreclosed from thereafter proceeding against them on the original charge.

It appears from the records of the plea withdrawal proceedings that defendants sought to have their pleas set aside prior to sentencing when they learned that their maximum sentences would be higher than they had anticipated when they tendered their pleas. 1 Accordingly, the McMiller rule has no application to this case. People v. Lewandowski, 394 Mich. 529, 232 N.W.2d 173 (1975); People v. Millard, 394 Mich. 99, 228 N.W.2d 783 (1975); People v. Moore, 74 Mich.App. 195, 253 N.W.2d 708 (1977); Moore v. Ninth District Judge, 69 Mich.App. 16, 19-20, 244 N.W.2d 346 (1976). People v. McMiller, supra, 389 Mich. at 430-431, 208 N.W.2d 451, disposes of defendants' double jeopardy claims. There was no error.

II

Defendants next raise related claims. Defendant Parker contends that reversible prejudice resulted from the trial judge's refusal to order separate trials because (1) use of defendant Mitchell's out-of-court statements at trial prejudiced defendant Parker and (2) defendant Mitchell's counsel was so inadequately prepared for trial that defendant [76 MICHAPP 439] Parker's defense was prejudiced. Similarly, defendant Mitchell contends that he was prejudiced by denial of his counsel's motion for adjournment, which he sought because he assertedly had not had time to prepare properly for trial.

The second branch of defendant Parker's arguments can be considered along with defendant Mitchell's contention. At the hearing on the motion for adjournment, defense counsel stated that "any argument I may have on that motion is contained within the written motion". The motion itself merely recites that Mitchell's counsel "believes that an adjournment would be necessary to adequately prepare the defendant's defense". Although defense counsel did assert that "this is not a defense tactic to separate the trials in any way", he declined to respond to the prosecutor's arguments against the motion. In its ruling, the court noted that "every trial involves tactics", but concluded that there was "no reason for adjournment".

We recognize that difficulties confronted defense counsel when he was appointed to replace defendant's retained counsel, who was forced to withdraw because he had received a judicial appointment and was prohibited from practicing law. Nevertheless, defense counsel had over 30 days to prepare for trial, the court had indicated and demonstrated its willingness to cooperate with newly appointed defense counsel by making court files and transcripts available to him, and defense counsel agreed that he could avail himself of the work product of defendant's former attorney.

Requests for adjournments or continuances are addressed to the trial court's discretion, and absent an abuse of this discretion the decision will not be overturned. People v. Shuey, 63 Mich.App. [76 MICHAPP 440] 666, 671, 234 N.W.2d 754 (1975); People v. Masonis, 58 Mich.App. 615, 619, 228 N.W.2d 489 (1975); People v. Carter, 54 Mich.App. 69, 73, 220 N.W.2d 330 (1974). Adjournments or continuances are not to be granted except for good cause shown. M.C.L.A. § 768.2; M.S.A. § 28.1025, GCR 1963, 503.1. In the present case defendant did not claim that he was being deprived of his right to counsel, as in People v. Williams, 386 Mich. 565, 573, 194 N.W.2d 337 (1972), nor that he was being deprived of compulsory process, as in People v. Merritt, 396 Mich. 67, 80-81, 238 N.W.2d 31 (1976). Indeed, defense counsel advanced no reasons or circumstances whatsoever in support of his bald assertion that an "adjournment would be necessary to adequately prepare the defendant's defense", 2 nor does the record reveal any. To the contrary, the record reveals that Mitchell's counsel proceeded to trial without renewing his motion or indicating in any way that he remained unprepared, and that he conducted a vigorous defense. Under these circumstances, and applying the standards set out in Williams, supra, we find no abuse of discretion, and consequently no error on which to predicate reversal. See People v. Carter, supra; People v. Calhoun, 17 Mich.App. 401, 402, 169 N.W.2d 505 (1969).

A defendant does not have a "right" to a separate trial; rather, joinder rests within the discretion of the trial judge. People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976); People v. Foster, 51 Mich.App. 213, 215, 214 N.W.2d 723 (1974); M.C.L.A. § 768.5; [76 MICHAPP 441] M.S.A. § 28.1028. A defendant predicating error upon having been tried jointly with another defendant must demonstrate that the court abused its discretion in denying a motion for separate trial. People v. Moore, 306 Mich. 29, 38, 10 N.W.2d 296 (1943); People v. Rogers, 39 Mich.App. 157, 161, 197 N.W.2d 292 (1972). A motion for severance on the ground that a codefendant has made extrajudicial statements 3 implicating the movant is likewise addressed to the sound discretion of the trial court. People v. Campbell, 301 Mich. 670, 673-674, 4 N.W.2d 51 (1942); 75 Am.Jur.2d, Trial, § 17, p. 133, Anno: Right to severance where codefendant has incriminated himself, 54 A.L.R.2d 830, 833-834.

In determining whether a separate trial ought to have been granted, several factors must be weighed. First, we note that in his testimony Mitchell retraced the history of the statements he had made concerning the origin of his wound, explaining that he was confused and weakened by loss of blood after having been shot. Thus his testimony was substantially in accord with his statements, a factor weighing against a finding of abuse of discretion. Anno: 54 A.L.R.2d, supra, at 863, particularly since there was no objection to the use of the "snake bite" statements. People v. Campbell, supra, at 674, 4 N.W.2d 51.

Secondly, none of Mitchell's statements inculpated[76 MICHAPP 442] defendant Parker; indeed, only one of the statements related directly to defendant Parker, and it tended to exculpate him. As defendant Parker concedes on appeal, Mitchell's statements were "neither confession nor admission", and after examining with care his brief on appeal, we note that defendant Parker advances not one reason to support his claim that he was prejudiced by their admission. We agree with him that "the only purpose these statements could serve would be impeachment of Mitchell's testimony".

A third factor is the extent to which the codefendants' defenses were antagonistic. Anno: 54 A.L.R.2d, supra, at 858. In the present case it is clear that they were not antagonistic. Parker did not take the stand, and there is no indication from either the course of examination by respective defense counsel, nor from their arguments, that Parker sought to defend on a theory different from Mitchell's. An additional factor, the weight and sufficiency of the evidence, independent of...

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