People v. Smith

• Decision Date: 02 February 1977
• Docket Number: 21830 and 24016,Docket Nos. 27045
• Citation: 73 Mich.App. 463,252 N.W.2d 488
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Byron A. SMITH et al., Defendants-Appellants. 73 Mich.App. 463, 252 N.W.2d 488
• Court: Court of Appeal of Michigan — District of US

Page 488

252 N.W.2d 488

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Byron A. SMITH et al., Defendants-Appellants.

Docket Nos. 27045, 21830 and 24016.

73 Mich.App. 463, 252 N.W.2d 488

Court of Appeals of Michigan.

Feb. 2, 1977.

Rehearing Denied in No. 21830 April 4, 1977 and No. 27045

April 11, 1977.

Released for Publication April 27, 1977.

[73 MICHAPP 465] George E. Lee, Detroit, for Smith.

[73 MICHAPP 466] Fred K. Persons, Detroit, for Holloway.

Carl Ziemba, Detroit, for Gilmore.

[73 MICHAPP 465] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Detroit, Robert M. Morgan, Asst. Pros. Atty., for plaintiff-appellee.

[73 MICHAPP 466] Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.

V. J. BRENNAN, Presiding Judge.

Defendants were tried jointly and convicted by a Wayne County Circuit Court jury of murder committed in the perpetration of a kidnapping, M.C.L.A. § 750.316; M.S.A. § 28.548, and kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581. All three defendants were sentenced to concurrent life terms. All three defendants appeal as a matter of right.

In simplified terms, the facts of this matter arose in the following order. On December 1, 1973, Keith Arnold and Gerald Kraft, aged six years and eight years respectively, disappeared in late afternoon while playing near their homes on Inverness in the city of Detroit.

At 9:00 o'clock that evening, Roy Hillyer, a friend of the Arnold family, received a telephone call demanding fifty-three thousand dollars ransom for the return of the children. Police were notified immediately and telephone surveillance was established.

Two subsequent calls were received on December 1 and December 2, 1973, one taken by Marjorie Arnold, the mother, and one by Linda Ellis, Keith Arnold's sister. Both calls demanded ransom in the same general amount. Linda Ellis later testified that the calls she received all seemed made by the same person.

As ordered, Roy Hillyer went to a specified public telephone booth on December 2, 1973, [73 MICHAPP 467] where he received a call instructing him to deliver a bag with the ransom to an address on Griggs Street. The delivery was made with a dummy ransom bag. Meanwhile, police had established a surveillance at the telephone booth. After some moments, officers observed defendant Smith come to the booth, lift the receiver and look around. Testimony also placed defendant Holloway in the immediate area of the dummy drop at the same time.

On December 4, 1973, the Wayne County Sheriff's office reported finding the boys' bodies in two fields located in Romulus, Michigan. The boys had each been shot twice in the head from the same weapon. Neighbors reported hearing the shots the previous evening about 7:00 o'clock.

At trial, various prosecution witnesses placed all three defendants and the two kidnapped boys in the 14th Street apartment of Fannie Johnson, sister-in-law of defendant Gilmore, on the evening of December 1, 1973. The two boys remained there until December 3, 1973. At least one of the defendants was there at all times during this period. On the morning after the boys' bodies were discovered, police found defendant Gilmore at an apartment on Schaeffer Road and placed him under arrest. Defendant Smith was arrested on December 4, 1973 in the company of an acquaintance, Lucinda Prewitt. Defendant Holloway voluntarily surrendered himself to police on December 5, 1973.

On appeal, because the basic legal questions presented by defendants Gilmore, Smith and Holloway are very similar, we will attempt to discuss them together. Where distinct allegations are raised, we will address them separately.

Defendants Gilmore, Smith and Holloway all contend that reversible error occurred when the [73 MICHAPP 468] trial court denied their pretrial motions for severance. We do not agree.

The decision whether to hold joint or separate trials is discretionary with the trial court. M.C.L.A. § 768.5; M.S.A. § 28.1028. ¹ People v. Hurst, 396 Mich. 1, 11, 238 N.W.2d 6 (1976). In moving the court for separate trial, defendant must "show that his substantial rights will be prejudiced by a joint trial". People v. Scott, 61 Mich.App. 91, 94, 232 N.W.2d 315 (1975). See People v. Schram, 378 Mich. 145, 156, 142 N.W.2d 662 (1966). A supporting affidavit defining the inconsistencies between the defenses of the parties is required before an abuse of discretion will be found. People v. Mullane, 256 Mich. 54, 56, 239 N.W. 282 (1931).

No affidavits were attached to defendants' motions. Nor did the statements contained in defendants' motions adequately assert "the full scope of the antagonism between his and his co-defendant's defenses". People v. Markham, 19 Mich.App. 616, 635, 173 N.W.2d 307 (1969). The only substantial claim made by defendants Gilmore and Smith is that they could not call their co-defendants to testify in a joint trial; and this claim is largely vitiated by decisions indicating that co-defendants, even if tried separately, cannot be compelled to testify against their will. People v. Merritt, 396 Mich. 67, 84, n. 18, 238 N.W.2d 31 (1976); People v. Van Alstine, 57 Mich. 69, 82, 23 N.W. 594 (1885). In the same vein, authority exists to answer defendant Holloway's allegation that he was denied his right of confrontation in a joint trial where he was not allowed to cross-examine his co-defendants. State v. Moore, 101 N.W.2d 579, 587 (N.D.1960). We [73 MICHAPP 469] find no abuse in the trial court's denial of the respective motions.

Neither do we feel the trial court erred by failing to grant defendants Gilmore and Smith a separate trial sua sponte after the closing argument by defendant Holloway. People v. Rogers, 39 Mich.App. 157, 161, 197 N.W.2d 292 (1972). Further, we do not even perceive how the remarks of defendant Holloway's counsel concerning Holloway's mental state which counsel couched in biblical terms could incriminate defendants Gilmore and Smith. People v. Hurst, supra, 396 Mich. at 4, 238 N.W.2d 6.

Defendants Gilmore and Smith next contend the trial court abused its discretion by allowing rebuttal evidence that Gary Braceful, a person connected with the case, had been killed by the same gun used to kill the two boys.

Gary Braceful was mentioned frequently during the trial. He was present numerous times during the period the boys were being held at the 14th Street apartment. Defendant Gilmore's testimony clearly implicated Braceful as the sole party to the crime. Consequently, objection arose to police rebuttal indicating that the gun which killed Braceful was the same gun used to kill the two boys.

We feel the police testimony was proper rebuttal, not improper evidence of another crime. People v. Utter, 217 Mich. 74, 83, 185 N.W. 830 (1921). Therefore, we find no abuse of discretion. People v. Ames, 60 Mich.App. 168, 172, 230 N.W.2d 360 (1975). See People v. Williams, 386 Mich. 565, 571-573, 194 N.W.2d 337 (1972). Evidence introduced by defendant Gilmore inculpating Braceful as the sole participant in the crime clearly justifies prosecution rebuttal. We also believe this testimony regarding the gun did not improperly inject another crime into the case where its relevancy as rebuttal [73 MICHAPP 470] evidence was found by the trial court to outweigh its prejudicial effect.

Defendants Gilmore and Holloway argue next that the prosecution's summation was improper. We do not agree.

No objection to any of those comments made was raised at trial. In such circumstances, the remarks will not be reviewed unless the following obtains:

"The general rule in Michigan is that a defendant's failure to object to allegedly improper remarks made by the prosecutor during closing argument precludes appellate review unless it can be said that an objection and the appropriate curative instruction could not have eliminated the prejudice arising from the prosecutor's statements. People v. Tarpley, 41 Mich.App. 227, 199 N.W.2d 839 (1972), People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970)." People v. McLendon, 51 Mich.App. 543, 547, 215 N.W.2d 742, 744 (1974).

Viewing the allegedly improper comments within the full context in which they were made, we feel the remarks were not so improper that they could not have been corrected by a curative instruction. People v. Scott, 65 Mich.App. 657, 659-660, 237 N.W.2d 602 (1975). See People v. Blake, 58 Mich.App. 685, 688, 228 N.W.2d 519 (1975). We decline to review them now.

Error is next alleged because the prosecution stated in summation that defendants' presence in court gave them opportunity to alter their testimony.

No objection was made to these comments. Consequently, under the standard applicable to determine whether we will review prejudicial remarks of prosecution in a closing argument, we find no basis to believe a curative instruction would not [73 MICHAPP 471] have removed any error. People v. Scott, supra at 659-660, 237 N.W.2d 602. We also note that this Court has found no error in argument by prosecution that a witness had an opportunity to fabricate. People v. Couch, 49 Mich.App. 69, 72, 211 N.W.2d 250 (1973).

However, defendants maintain a constitutional violation of their right to be present at trial. People v. Montgomery, 64 Mich.App. 101, 103, 235 N.W.2d 75 (1975). We feel the remark was inadvisable. However, in the full context of the summation, we believe the error was harmless. People v. Christensen, 64 Mich.App. 23, 32-33, 235 N.W.2d 50 (1975). We decline to reverse on this ground.

Defendant Gilmore contends that the trial court erred in admitting voiceprints of the telephone calls demanding ransom and in limiting the jury's use of them. We disagree.

The evidence was not offered by the prosecution against defendant Gilmore but was solely limited to use against co-defendant Holloway. Therefore, we find defendant Gilmore has no standing to object to its admission. For our...