People v. Smith

• Decision Date: 06 May 1983
• Docket Number: Docket No. 45107
• Citation: 122 Mich.App. 202,332 N.W.2d 401
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Mann SMITH, Defendant-Appellant. 122 Mich.App. 202, 332 N.W.2d 401
• Court: Court of Appeal of Michigan — District of US

Page 401

332 N.W.2d 401

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry Mann SMITH, Defendant-Appellant.

Docket No. 45107.

122 Mich.App. 202, 332 N.W.2d 401

Court of Appeals of Michigan.

Submitted Oct. 6, 1981.

Decided Dec. 14, 1981.

Released for Publication May 6, 1983.

[122 MICHAPP 203] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad Sindt, Pros. Atty., and John H. MacFarlane, Asst. Pros. Atty., for the People.

State Appellate Defender by Richard B. Ginsberg, Ann Arbor, for defendant-appellant on appeal.

[122 MICHAPP 204] Before R.B. BURNS, P.J., and MacKENZIE and KALLMAN, ^* JJ.

PER CURIAM.

After a jury trial, defendant was convicted of assault with intent to commit great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to imprisonment for consecutive terms of five to ten years and two years and appealed by right. Defendant argued, among other things, that he had been denied a fair trial because a juror had failed during voir dire to reveal that he was to be a prosecution witness in a similar case. The juror was not directly asked if he had ever witnessed a similar crime. Defendant argued that a prosecution witness naturally tends to identify himself with the prosecution and to distrust the defense. Defendant submitted an affidavit from his trial counsel indicating that, had counsel been aware that the juror was a prosecution witness in a similar case, he would have exercised a peremptory challenge to have the juror dismissed. Since we regarded the record then before us as insufficient to resolve defendant's contentions, we retained jurisdiction and remanded the case to the trial court as follows:

"[S]ince it is unclear whether the juror in question was aware at the time of trial that he would be called as a witness in the other case, we feel that the proper procedure is to remand this matter for an evidentiary hearing in the trial court. At that hearing, the trial judge should determine whether (1) the juror's status as a witness deprived him of his ability to act impartially in the case at bar; (2) defendant could have successfully [122 MICHAPP 205] challenged the juror for cause; or (3) defendant would have 'otherwise' dismissed the juror by exercising a peremptory challenge had the truth been revealed." People v. Lary Smith, 106 Mich.App. 203, 213, 307 N.W.2d 441 (1981).

On remand, defendant's trial counsel testified that he would have peremptorily challenged the juror had he been aware that the juror was a prosecution witness in a similar case. The juror testified that he had not actually seen the similar crime committed:

"I was not present when Mr. Ritsema was shot. I was about a half--about three-quarters or a quarter of a--or a whole block away and my testimony was that I saw this panel truck pull up from this street, go into the gas station and then proceeded into the driveway and I--in my evidence, I said it sounded like to me the thing was backfiring. That's all I saw. I couldn't tell you whether he is black, white or yellow, whether he's male or female."

The other case was not tried until trial in this case was completed. The juror testified that, although he had made a statement to the police, he was not told that he would be called as a witness until he was served with a subpoena. The subpoena was served after trial in this case was completed. The juror also testified that his involvement in the other case had no influence on his consideration of this case.

The trial judge found that the juror's status as a witness did not deprive him of the ability to act impartially in this case and that defendant could not have successfully challenged the juror for cause. The trial judge made no finding as to whether the juror would have been dismissed by peremptory challenge had his status as a witness [122 MICHAPP 206] in the other case been revealed. Defendant now argues that this Court should make the finding that the trial judge failed to make. We decline to do so since testimony on remand has rendered the question moot. What defense counsel would have done if the juror had informed him that he was to be a witness in a similar case is irrelevant since the juror could not have so informed counsel. At the time of voir dire the juror himself did not know he was to be a witness. Moreover, the juror's status as a prosecution witness could not have led the juror to identify himself with the prosecution befor...