People v. Sawicki, s. 156

• Decision Date: 11 October 1966
• Docket Number: No. 1,157,Nos. 156,s. 156,1
• Citation: 4 Mich.App. 467,145 N.W.2d 236
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chester A. SAWICKI and Albert A. Martin, Defendants-Appellants. Cal
• Court: Court of Appeal of Michigan — District of US

Page 236

145 N.W.2d 236

4 Mich.App. 467

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chester A. SAWICKI and Albert A. Martin, Defendants-Appellants.

Cal. Nos. 156, 157.

Court of Appeals of Michigan, Division No. 1.

Oct. 11, 1966.

Leave to Appeal Denied Jan. 10, 1967.

Patrick R. Donahue, Grosse Pointe Farms, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty. Wayne County, Detroit, for appellee.

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

HOLBROOK, Judge.

Defendants, Chester A. Sawicki and Albert A. Martin, were convicted of the crime of robbery armed, ¹ in the recorders court for the city of Detroit, before a jury, September 13, 1963, and sentenced to prison for respective terms of 15 to 30 years and 7 1/2 to 15 years, September 27, 1963.

Defendants have appealed from this conviction and raise the following questions for review:

1. Where the prosecution attempt to establish the whereabouts of the defendants on the night of the crime by two witnesses, should the trial court have excluded one of the witnesses from the courtroom while the other was testifying?

2. Where the only testimony allegedly placing defendants at the scene of the crime was given by an alleged accomplice, should the trial court have instructed the jury that such testimony should be viewed with extreme caution and grave suspicion?

3. Where the key witness for the prosecution in defendant's trial for robbery armed had already pled guilty to the charge of attempted robbery armed, but after seven months had not yet been sentenced, should the trial court have instructed the jury that such witness had an interest in the outcome of the trial?

4. Where an alleged accomplice names himself and three others as co-perpetrators of the crime of robbery armed, is the constitutional requirement of equal protection violated by the fact that of the four alleged co-perpetrators, two are convicted of robbery armed, the third is allowed to plead guilty to attempted robbery armed, and the fourth is not prosecuted at all?

The pertinent facts appear to be as follows: On December 28, 1962, Miss Elizabeth Bach, Miss Bertha Bach and Mr. Louis Bach lived at 21651 W. Seven Mile Road in the city of Detroit. In response to a telephone call, approximately at 7:00 p.m., from an unknown party stating that there was a fire in the back yard, Mr. Louis Bach opened a side door of the house to investigate and was met by two, three or possibly four men armed with a gun, who forcibly entered the residence.

Holding the Bach family at gun point, the assailants ransacked the house, taking a collection of early American coins valued at approximately $200 together with upwards of $30 in other cash.

The only witnesses to the crime were the three members of the Bach family. At the time of the trial, Mr. Louis Bach was deceased. Neither Elizabeth nor Bertha Bach was able to identify either defendant Albert Martin or defendant Chester Sawicki as the thieves who entered their house, because the robbers wore caps, gloves and face masks made of a green material.

Since Mr. Louis Bach was deceased at the time of trial, he could not identify certain old coins produced by the prosecution as being from his collection. The sisters, Elizabeth and Bertha Bach, were not sufficiently familiar with their brother's coin collection to be able to positively identify the coins produced as being from the stolen collection.

It is the contention of the People that the crime was committed by defendants Sawicki and Martin; that one James Parker was their accomplice; and that after completion of the robbery, Sawicki, Martin and Parker retired to the residence of one Ralph McAfee to split the loot.

The only direct evidence placing the two defendants at the scene of the crime was given by James Parker who testified that the robbery was planned and carried out by himself, Chester Sawicki, Albert Martin and Ralph McAfee. Ralph McAfee denied any participation in the robbery, but stated that on the night of the crime he permitted the two defendants and James Parker the use of his basement to divide up a sack full of money, some of which consisted of old coins. Although McAfee denied participation in the robbery and any knowledge as to where the money came from, he shared in the proceeds to the extent of $52.

The testimony of McAfee and Parker was the only evidence placing defendant Sawicki in McAfee's basement on the night of the crime. The only other evidence placing defendant Martin in the basement was his fingerprint on a Vernor's Ginger Ale bottle found in the basement. Martin claims that the print was placed on the bottle when he and Sawicki were in the building looking for an apartment some time before the night of the crime.

On January 17, 1963, James Parker was arraigned and at this time he entered a plea of not guilty. Subsequently, on February 1, 1963, he withdrew his plea of not guilty and, by leave of court, entered a plea of guilty to the reduced charge of attempted robbery armed.

Both Martin and Sawicki entered pleas of not guilty and stood trial together on the charge of robbery armed. Parker and McAfee were witnesses on behalf of the prosecution. When Parker was brought in to testify, counsel for defendant Martin made a motion to exclude other witnesses from the courtroom. The trial judge denied the motion because it was not made seasonably; Parker and McAfee were the eighth and ninth witnesses to testify.

James Parker, on September 30, 1963, was sentenced to a term of 3 1/2 to 5 years on the charge of attempted robbery armed. Ralph McAfee has not been tried for any offense arising out of the incident.

The issue raised by appellants' first question is whether the trial judge abused his discretion in denying counsel for defendants motion to exclude witness McAfee from the courtroom while witness Parker was on the witness stand. At the time of the motion, 7 prosecution witnesses had previously testified and Parker was being examined. No previous motion for sequestration had been made. The stated reason for the court's refusal of the motion was that 7 witnesses had already testified, and it would be unfair to grant the motion at such a late stage. The names of both Parker and McAfee were indorsed upon the information as prosecution witnesses, and defendants' counsel was charged with the knowledge that they would be called to testify as well as the other witnesses' names so indorsed.

As we said in People v. Likely (1966), 2 Mich.App. 458, on page 461, 140 N.W.2d 529, on page 530: 'The matter of sequestering of witnesses is discretionary with the court. People v. Burns (1887), 67 Mich. 537, 35 N.W. 154; People v. Martin (1920), 210 Mich. 139, 177 N.W. 193.'

The term 'discretion' is defined in the case of Spalding v. Spalding (1959), 355 Mich. 382, on pp. 384, 385, 94 N.W.2d 810, on p. 811, wherein Mr. Justice Smith stated as follows:

'The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse' in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.'

We conclude that the trial judge did not abuse his discretion in denying the late motion for sequestering of witnesses.

The issues raised by the second and third questions, i.e., credibility of the testimony of an accomplice, can be dealt with together.

Should the trial judge have instructed the jury that the testimony of the alleged accomplice, Parker, should be viewed with extra caution and grave suspicion?

Judge Skillman chaged the jury in part as follows:

'Now in...