People v. Schram

• Citation: 142 N.W.2d 662,378 Mich. 145
• Decision Date: 08 June 1966
• Docket Number: No. 7,7
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Clayton SCHRAM, Defendant-Appellant.
• Court: Supreme Court of Michigan

Page 662

142 N.W.2d 662

378 Mich. 145

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Clayton SCHRAM, Defendant-Appellant.

No. 7.

Supreme Court of Michigan.

June 8, 1966.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, James E. Lacey, Asst. Pros. Atty., Detroit, for the People.

Michael Clayton Schram, in pro. per.

Before the Entire Bench.

SMITH, Justice.

Leave was granted from a decision of the court of appeals which affirmed the trial court conviction of defendant. The issues in this Court are two: (1) Did the trial court commit reversible error when it consolidated for trial two separate informations charging joint violators with the same crime where each was arrested, arraigned, examined and informed against at different times; and (2) Did the trial court abuse its discretion in denying a motion for mistrial when it learned that an assistant prosecuting attorney had engaged in a brief conversation with two jurors who asked on what day the trial might be concluded?

As appears from the court of appeals opinion, People v. Schram, 1 Mich.App. 279, 136 N.W.2d 44, a certain tavern was robbed on September 26, 1958. Defendant's codefendant in trial proceedings, Mark Brock, was implicated and complaint issued January 13, 1959. He was arrested January 20th, examined on January 27th, and the information filed against him February 19th, 1959. Both Brock and Schram were charged with the crime of assault with intent to rob while armed.

Defendant-appellant Schram, whose involvement in the crime either was not known or fully understood until after Brock had become implicated, had a complaint issued against him January 27th, was arrested on a separate warrant January 30th, examined February 18th, and informed on separate information also filed February 19th, 1959. On the day of trial, the assistant prosecutor moved to consolidate the cases for trial and over objections the motion was granted.

Objection was made by codefendant Brock's attorney and concurred in by defendant Schram's attorney. There was no claim by either defense attorney that prejudice would result from the consolidation. It was not claimed either that the prosecution's motion to consolidate came as a surprise, hence both counsel declined the trial court's offer of adjournment. The defendant's motion was based on the contention that the trial court had no authority, either under statutory or common law, to consolidate the cases 'even though it may be claimed both defendants were involved in this same transaction.' In ruling on the motion, the trial judge observed that the witnesses in each case were identical.

As to the other issue in the case, that of the conversation between the assistant prosecutor and two jurors about when the case might end, the following account of what took place is quoted from the record. It should be pointed out, for purposes of identification, that in the following colloquy Mr. Taylor was defendant Schram's attorney, Mr. Kent the assistant prosecuting attorney, and Mr. Montante the attorney for defendant Brock.

'Mr. Taylor: If it please the Court, this is a little difficult to put. I am trying to be as much a gentleman as possible. There is no intimation or inference of maliciousness in this or any other aspect, but I must make this statement. I left the Court Room at noon. I believe two of the Jurors were sitting out in the hallway having a conversation with Mr. Kent. I don't know what the conversation was. I didn't overhear any part of it except for two words, and one was the name mentioned by Mr. Kent of the witness on the stand at the time of adjournment and the other name was the name of my client.

'I don't know what was said or any of the context of the conversation. I will profess to knowing nothing.

'I am merely pointing out this is improper procedure to engage in discussions--

'The Court: Were they two jurors sitting on this case? Were they two jurors sitting on this case?

Hereinafter, the assistant prosecutor, Mr. Kent, reported the conversation with the jurors as follows:

'Mr. Kent: Of course, that calls for an explanation. I do not disagree with Mr. Taylor except with his use of the word 'improper'. I think, of course, a Court would be entitled to an explanation and Mr. Taylor and Mr. Montante.

'After the adjournment, I walked out the side door which leads into the hallway from the Jury Room which is directly adjoining this Court Room. As I walked out, I believe one of the Jurors whose name is Mr. Schultz and I don't recall the name of the other Juror--I think it was Juror No. 6--it is No. 1, Maude Vickroy.

'Mr. Schultz said, as he pointed to me, as we were all walking out with our hats and coats heading down the hall, he said, 'It is all your fault that we are being kept over.'

'I believe he said it in a joking manner. I said, 'Well what do you mean?'

'He said, 'Well, you know that we will have to probably stay over our term.'

'I said, 'Yes, I am very sorry. I know the Judge explained to you perhaps you might have to. He explained it on the voir dire and asked if there were any Jurors whose terms would expire Friday, whether or not they were willing to sit before the Jury was empaneled.'

'He said, 'Do you think it will be over Monday or will it run into Tuesday?'

'I said, 'We, frankly, are through. We have Mr. Seevers here and we are going to ask a few more questions. Then somebody would be testifying about Schram and then we will have arguments. I think that we will be able to complete the case by Monday.' * * *

'That was the complete sum total of our conversation.' (Emphasis supplied.)

After Mr. Kent's report, the following colloquy and questioning of jurors took place:

'The Court: Do you think the statements were prejudicial to your client?

'Mr. Taylor: I think any conversation, any discussion in the case including mentioning the facts what they are going to bring or prove--

'The Court: I want to interrogate the Jurors.

'Mr. Taylor: It may be prejudicial.

'The Court: If a Juror spoke to you, why didn't you walk away?

'I don't think the statement, to me, is anything that is prejudicial or detrimental, just a question about the time. There wasn't anything about the case.

'I want to question the Jurors. I would rather it be done, as far as I am concerned.

'Mr. Taylor: I make a motion for a mistrial on what happened.

'Mr. Kent: You are placing the Court in a position of making a mistrial.

'The Court: Well, you have made a motion for a mistrial. I will interrogate the Jurors.

'Mr. Taylor: I make a motion for a mistrial.

'Mr. Kent: I think it is Juror No. 1 and 5--I think you ought to interrogate just the two of them.

'The Court: Wait a minute. Just step back and let me question the two jurors. I think it is Juror No. 1 and No. 5.

'(Thereupon, the Jurors were called into the Chambers in the presence of Counsel and Defendants.)

'The Court: We understand both of you Jurors had a conversation with Mr. Kent this noon?

'Mr. Schultz: Yes.

'The Court: And you are Mr. Schultz, is that your name?

'Mr. Schultz: Yes.

'The Court: Did you have a conversation with Mr. Kent whether or not you would have to stay over a day?

'Mr. Schultz: Yes.

'The Court: And was that the only question?

'Mr. Schultz: The time, sir.

'The Court: Was there anything that transpired between you and Mr. Kent which was either prejudicial to the prosecution or prejudicial to the defense?

'Mr. Schultz: Nothing as to the case. We were remarking about the time, sir.

'The Court: Worrying about the time?

'Mr. Schultz: Yes.

'The Court: You feel that notwithstanding your conversation, you could give these Defendants a fair and just and impartial trial?

'Mr. Schultz: Yes.

'The Court: Is it likewise true of you?

'Mrs. Vickroy: Yes.

'The Court: Was there anything that transpired during your lunch that would sway you one way or the other?

'Maude Vickroy: No.

'The Court: Are you sure?

'Maude Vickroy: Yes.

'The Court: And you, ma'am--

'Maude Vickroy: There was nothing pertaining to the case.

'The Court: Nothing in the lawsuit, only as far as the time because your term was ending?

'Maude Vickroy: Right.

'The Court: You are positive anything that transpired between you and Mr. Kent will not affect the defense or the prosecution?

'Maude Vickroy: No.

'Mr. Schultz: No.

'The Court: Are you sure of that?

'Mr. Schultz: Yes.

'Maude Vickroy: Yes.

'The Court: All right, call the balance of the Jury back. The motion is denied.' (Emphasis supplied.)

First, we take up defendant's argument that the consolidation or joinder of his case with that of Brock was without legal authority. 'If,' he says, 'it (the court) acted without any authority, then its actions are beyond the jurisdiction of the court and therefore void.' Defendant cites that statute providing for separation of trials when defendants are jointly indicted: 'When 2 or more defendants shall be jointly indicted for any criminal offense, they shall be tried separately or jointly, in the discretion of the court.' C.L.1948, § 768.5 (Stat.Ann.1954 Rev. § 28.1028). Defendant argues that because the cited statute contemplates only a situation where two or more defendants are Jointly indicted, then joinder or consolidation where two or more defendants are separately indicted is forbidden, in the absence of express statutory authority.

Defendant's contention that joinder, under the circumstances, is a jurisdictional matter cannot be sustained. In People v. Foster, 261 Mich. 247, 246 N.W. 60, where one of the questions was whether, after the statute cited above was amended to its present form, a previous order of separation could be set aside and defendants tried jointly, this Court held that such was a statutory procedural right which the legislature could abrogate. We think the point should be well taken that under circumstances herein presented the matter is not one of jurisdiction but of procedure. There is nothing in the record to suggest that, as to place of crime,...