People v. Slate
| Decision Date | 05 January 1977 |
| Docket Number | Docket No. 24804 |
| Citation | 250 N.W.2d 572,73 Mich.App. 126 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Thomas SLATE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Robert E. Slameka, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellee.
Before WALSH, P.J., and R. B. BURNS and BIVINS, * JJ.
Defendant Slate, along with codefendants Hunter and Thomas, was charged with receiving and concealing stolen property, the value of which exceeded $100.00, contrary to M.C.L.A. § 750.535; M.S.A. § 28.803. All three codefendants were charged in the same information. Codefendants Hunter and Thomas only were also charged with armed robbery in a separate information. The trial court, pursuant to a motion by the prosecutor, granted a joinder of the informations for trial over the objection of defendant Slate. On June 11, 1975, the jury convicted defendant Slate and codefendant Thomas of the receiving and concealing charge. Defendant Slate, on July 9, 1975, was sentenced to a prison term of forty to sixty months. Defendant Slate now appeals as of right.
The evidence adduced at trial showed the following chain of events:
On October 2, 1974, an armed robbery of the Shifrin-Willens Jewelry Store located at 2028 East Eight Mile Road, Detroit, took place.
Witness Macaulay, a sales employee at the jewelry store, was working in the store on the day of the hold-up.
Her manager asked her to wait on two gentlemen who were standing by the diamond case. The two men asked her if she could show them a few diamonds, and she showed them some men's diamond rings. After she showed them the rings, she put them back into the case, and the two men asked to see more diamond cuts. She told Mr. Robinson, the manager of the store, to assist the two men. The two men thereafter left the store.
About twenty minutes later, the two men again entered the jewelry store. Defendant Thomas had a shotgun in his hands and was pointing it towards witness Macaulay, demanding that she give him the case filled with diamonds. She placed the diamonds in a brown bag; the items included men's diamond rings, ladies' diamond rings, engagement rings, and wedding rings.
The two men then demanded the money in the cash register. The money was placed in a bag by defendant Thomas. At this time defendant Hunter had a pistol in his hand. The two defendants then left the store.
The store manager immediately called the police, and they arrived at the store just minutes later. Detroit Police officers Robert Edge and Greg Woods obtained a description of the hold-up men and of the merchandise stolen.
On October 4th, two days after the robbery, several witnesses identified defendant Hunter during a photographic display and during a line-up.
On October 4th, Sergeant John Fabian of the Detroit Police Department obtained a search warrant for the address of 5731 Charles, in that city, to enter the premises and search for diamond rings, money, and weapons used in the robbery.
After obtaining the warrant, Fabian, with additional personnel, proceeded to the address to execute the warrant. Fabian drove past the house on Charles and observed no activity at the house, no cars in the driveway and none in front of the house. He then drove around the block and informed the other police officers about this condition.
The police officers then proceeded towards the house to execute the warrant with Sergeant Fabian in the lead car. This time he observed three men standing alongside a car (1974 Thunderbird) which was parked in front of the house. As he got closer to the parked car, he observed one of the men walk to the rear of the car. He parked his car face-to-face with the parked T-Bird. Sergeant Fabian and the other officers then exited their car. As Sergeant Fabian approached the two men who were standing alongside of the car, he observed both of these men taking objects out of their pockets and throwing these objects to the ground. At trial, he identified defendants Hunter and Thomas as being the two men.
Defendants Hunter and Thomas were ordered to put their hands on the car, and they complied with this request. Sergeant Fabian retrieved the objects from the ground and put them in his pockets. The thrown items consisted of ladies' rings, watches and men's rings.
Sergeant Fabian then went to the rear of the T-Bird where the trunk was open; defendant Slate was standing directly behind the trunk. Slate was leaning into the trunk and was reaching into it. The T-Bird was owned by defendant Slate.
While at the back of the car, Sergeant Fabian noticed an open athletic bag with clothing inside. There were several ladies' rings and ring sets lying on top of the clothing with store tags on them. The tags were similar to store tags which he had seen at the jewelry store and described as those taken in the robbery. A more complete search resulted in his finding other diamond jewelry items inside the athletic bag.
After Sergeant Fabian retrieved the jewelry from the trunk, the three defendants were all placed under arrest.
A custodial search was made of all three arrested defendants by Sergeant Fabian. The sum of $433.00 was taken from defendant Thomas; a wristwatch was also found underneath his socks along with some rings in his pockets.
Defendant Slate now appeals from his jury conviction of receiving and concealing stolen property of the value of over $100.00, and raises several claims of error. We find only one issue merits extended discussion. We find no merit in the other assignments of error.
Defendant claims that the trial court reversibly erred in granting the prosecutor's motion to join the armed robbery charges against Hunter and Thomas with the charges of receiving and concealing stolen property against Hunter, Thomas, and himself in one trial upon the joined informations over his objection. Defendant argues that said joinder of the two separate informations prejudiced him in that it enabled the prosecutor to improperly argue to the jury by inference that he was also involved in the uncharged commission of the armed robbery. He maintains that the joinder operated to deny him a fair trial and was prejudicial to him.
The People contend, on the other hand, that the joinder of the informations was not prejudicial to defendant-appellant.
Defendant's contentions are dual in nature. First, he claims that the improper joinder permitted the prosecutor to draw inferences unfavorable to him which were not based on the evidence properly before the jury on the charged receiving and concealing stolen property offense. Second, he asserts that said joinder of charges resulted in the jury hearing 'conflicting' defenses from defendant, Hunter and Thomas in relation to their armed robbery charges. We disagree.
Under Michigan law, the practice of joint trials and consolidation of actions is clearly approved in general. Cf., M.C.L.A. § 768.5; M.S.A. § 28.1028; GCR 1963, 505.1.
The fact that persons are indicted or informed against separately does not bar their being tried jointly in criminal cases. People v. Schram, 378 Mich. 145, 142 N.W.2d 662 (1966). The decision to join separate charges against multiple defendants for the same criminal offense is discretionary with the trial court, and that discretionary decision will not be disturbed on appeal absent a showing of clear abuse, and resulting prejudice to the defendant. People v. Clark, 57 Mich.App. 339, 341--342, 225 N.W.2d 758 (1975); People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976); Cf., M.C.L.A. § 769.26; M.S.A. § 28.1096. Thus, in the absence of an affirmative showing that a joint trial prejudiced substantial rights of a defendant, the discretionary exercise of the trial court in allowing joinder will not be set aside on appeal.
It would appear, however, that the precise factual situation involved in the case at bench in relation to the joinder issue presented has not been dealt with in any prior Michigan appellate decision. We are here concerned with the joinder for trial purposes of three defendants, all of whom have had one common charge placed against them, but where only two of the three defendants have a separate and additional charge to confront.
A recent decision by another panel of this Court, however, is of significant assistance in facilitating the proper resolution of this joinder question. In People v. Billingslea, 70 Mich.App. 371, 246 N.W.2d 4 (1976), Lv. den., --- Mich. --- (1976) the defendant and a codefendant were charged under separate informations with delivery of heroin, and both were convicted of said charge in a joint jury trial. The codefendant was also separately tried in the same trial for a separate delivery charge arising out of a totally distinct and unrelated transaction. On appeal, the defendant contended that his joint trial with the codefendant under these circumstances deprived him of his due process right to a fair trial. This Court agreed and found reversible error and inherent prejudice in such joinder. (70 Mich.App. at p. 375, 246 N.W.2d 4) The critical concern and factually crucial circumstance in that case were that the codefendant was tried in the joint trial with the defendant for an 'entirely separate incident'. (70 Mich.App. at p. 372, 246 N.W.2d 4)
The case at bench is clearly distinguishable from the factual backdrop of the Billingslea case. In this case all three defendants had one common charge, with two of the three also having been charged and tried for a separate offense. We would distinguish the Billingslea result here because we believe that the additional armed robbery charge in the instant case did not arise out of an 'entirely separate incident'. We acknowledge, as did the Court in B...
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People v. Missouri
... ... The decision as to whether codefendants will be tried separately or jointly is in the discretion of the trial judge. M.C.L. § 768.5; M.S.A. § 28.1028, People v. Slate, 73 Mich.App. 126, 132, 250 N.W.2d 572 (1977). Where two defendants are tried jointly on a similar charge and, in addition, one of the defendants is also charged for a separate offense, the rule is that separate trials should be granted if the separate offense arises out of a transaction totally ... ...
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People v. Stricklin
... ... People v. Ritchie, 85 Mich.App. 463, 271 N.W.2d 276 (1978); People v. Slate, 73 Mich.App. 126, 132, 250 N.W.2d 572 (1977). Moreover, the improper joining of defendants for trial for separate offenses is not per se error requiring reversal. There must be an affirmative showing of prejudice to the substantial rights of the accused. Missouri, 100 Mich.App. 348-349, 299 ... ...
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People v. Moore, Docket No. 27272
... ... No prejudice to substantial rights of the defendant having been shown, the competing interests of benefit to the courts, the public and to the administration of justice from such joinder, come into play. People v. Slate, 73 Mich.App. 126, 250 N.W.2d 572 (1977). We find no error in the trial court's denial of a severance ... Affirmed ... --------------- ... * JOHN N. O'BRIEN, 6th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, ... ...
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People v. Atkins, Docket No. 45188
... ... Alderman, supra, 394 U.S. p. 172, 89 S.Ct. p. 965. Defendant Wiggins may, accordingly, invoke the discretion of the trial court by moving for a separate trial. People v. Slate, 73 Mich.App. 126, 131-132, 250 N.W.2d 572 (1977). M.C.L. § 768.5; M.S.A. § 28.1028. See 54 A.L.R.2d 830 ... Our consideration of the adequacy of the search warrant in this case is premised upon the accepted rule that absent a clear abuse of discretion, this Court will not ... ...