People v. Smith

• Decision Date: 06 May 1983
• Docket Number: Docket No. 45045
• Citation: 332 N.W.2d 428,122 Mich. App. 106
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Wayne SMITH, Defendant-Appellant. 122 Mich.App. 106, 332 N.W.2d 428
• Court: Court of Appeal of Michigan — District of US

Page 428

332 N.W.2d 428

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Jerry Wayne SMITH, Defendant-Appellant.

Docket No. 45045.

122 Mich.App. 106, 332 N.W.2d 428

Court of Appeals of Michigan.

Submitted May 6, 1982.

Decided Dec. 20, 1982.

Rehearing Denied Feb. 1, 1983.

Released for Publication May 6, 1983.

[122 MICHAPP 108]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., William F. Delhey, Pros.Atty., and Lynwood E. Noah, Deputy Chief Asst. Pros.Atty., for the People.

Neil C. Williston, Plymouth, for defendant-appellant.

Before MAHER, P.J., and BRONSON and SNOW, ^* JJ.

MAHER, Presiding Judge.

Defendant, Jerry Wayne Smith, was convicted by a jury of first-degree murder, M.C.L. Sec. 750.316;M.S.A. Sec. 28.548.Sentenced to life in prison, he appeals as of right.

On April 27, 1978, four men participated in an armed robbery of the Brooks Brothers Food Store in Ypsilanti.Two of the robbers entered the store while two waited outside in separate cars.Four employees--Warren Wilfred Brooks, his brotherThomas Brooks, MaryJo Wayne, and Kenneth[122 MICHAPP 109] Mericle--were in the store when the robbers made their entrance.

In the course of the robbery, Thomas Brooks said, "Go ahead, you son of a bitch, shoot me and began walking toward the door.One of the robbers, identified at trial as the defendant, thereupon took the life of Thomas Brooks with a blast from a shotgun.

Defendant raises several claims on appeal, one of which requires reversal.

I

Defendant first challenges the in-court identification by the victim's brother, Warren Wilfred Brooks.Mr. Brooks had identified the defendant at a pretrial lineup and again at trial.Although the court suppressed the lineup identification as impermissibly suggestive, it found that the in-court identification had a sufficiently independent basis.

When a trial court decides whether an in-court identification has an independent basis, it must consider eight factors.

1.Prior relationship with or knowledge of the defendant.

2.The opportunity to observe the offense.

3.Length of time between the offense and the disputed identification.

4.Accuracy or discrepancies in the pre-lineup or showup description and the defendant's actual description.

5.Any previous proper identification or failure to identify the defendant.

[122 MICHAPP 110] 6.Any identification prior to the lineup or showup of another person as defendant.

7.The nature of the alleged offense and the physical and psychological state of the witness.

8.Any idiosyncratic or special features of defendant.SeePeople v. Kachar, 400 Mich. 78, 95-96, 252 N.W.2d 807(1977).The prosecutor must show by clear and convincing evidence that, considering these factors, "the in-court identification has a sufficient independent basis to purge the taint caused by the illegal confrontation".400 Mich. at 97, 252 N.W.2d 807(footnote omitted).

Applying the evidence to the above eight factors we find the following.

1.The witness had no prior relationship with or knowledge of defendant.

2.The witness viewed defendant for about one to 1 1/2 minutes from 3 to 4 feet away.

3.The in-court identification occurred about 10 months after the offense.

4.The witness's description of defendant to the police is consistent with defendant's actual description.

5.The first time the witness viewed the lineup he failed to identify defendant because Mr. Brooks thought he was to identify his accomplice, a shorter man.

6.Mr. Brooks had not identified another person as the defendant prior to the lineup.

[122 MICHAPP 111] 7.The offense--first-degree murder--is a most serious crime.The victim was the witness's brother.Although the witness was not fatigued or under the influence of alcohol, his perception of the killer must have been affected by this traumatic event.

8.Defendant has no idiosyncratic or special features.

The first, third and seventh factors and, to a lesser extent, the fifth factor weigh against a finding of sufficient independent basis.The evidence weighing in favor of such a finding is, therefore, only somewhat stronger and is not in our judgment clear and convincing.However, on review we do not substitute our judgment for that of the trial court.This Court will not overturn a trial court's ruling at a suppression hearing unless it was clearly erroneous.People v. Ealey, 102 Mich.App. 301, 305, 301 N.W.2d 514(1980).We do not find that the trial court's ruling was clearly erroneous and, accordingly, we affirm it.

II

Defendant next argues that the prosecutor's reference to Charles Manson in his closing argument requires reversal.¹We cannot agree.

[122 MICHAPP 112]A prosecutor's remarks must be examined in the context in which they were made.People v. Duncan, 402 Mich. 1, 16, 260 N.W.2d 58(1977);People v. Allen, 351 Mich. 535, 88 N.W.2d 433(1958).The prosecutor was apparently trying to point out that the police in this case, unlike those in the Manson investigation, had made no mistakes.He was, thus, commenting only on the strength of his case.This is permissible.People v. Rowen, 111 Mich.App. 76, 82-83, 314 N.W.2d 526(1981).

[122 MICHAPP 113]

III

Defendant next contends that the trial court erred in failing to require the prosecution to call Donald White as a res gestae witness.The prosecution is indeed obliged to call all res gestae witnesses.SeePeople v. Castaneda, 81 Mich.App. 453, 265 N.W.2d 367(1978).However, the prosecutor is not under a duty to call an accomplice.People v. Belenor, 408 Mich. 244, 246, 289 N.W.2d 719(1980);People v. White, 401 Mich. 482, 508-509, 257 N.W.2d 912(1977).White was an accomplice inasmuch as he helped plan the robbery and stood as lookout.He was tried separately and was acquitted, however, before he was to testify at defendant's trial.His acquittal nevertheless does not change his status as an accomplice for purposes of applying the exception to the res gestae rule.The rationale behind the exception was stated in People v. Raider, 256 Mich. 131, 135-136, 239 N.W. 387(1931):

"Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own."

This case illustrates the wisdom of this reasoning.Defendant had two trials.Testifying at defendant's first trial, White made statements that were inconsistent with his testimony in his own case, causing the court to grant defendant's motion for mistrial.White was later charged with perjury.Moreover, White, still facing the perjury charge, refused to testify at defendant's second trial, invoking the privilege against self-incrimination.The trial court found, and we agree, that there was a sufficient [122 MICHAPP 114] foundation to invoke the privilege.Under these circumstances, the trial court properly excused the prosecution from calling Donald White as a res gestae witness.

IV

Finally, defendant claims the court erred in admitting gruesome photographs of the victim.Although defense counsel had earlier objected to the jury's viewing the photographs immediately after admission, he did not object to the admission of the photographs.Without a proper objection, appellate review is precluded absent manifest injustice.People v. Embree, 70 Mich.App. 382, 246 N.W.2d 6(1976).

Admission of photographs lies within the sound discretion of the trial court.People v. Eddington, 387 Mich. 551, 562, 198 N.W.2d 297(1972);People v. Rocha, 110 Mich.App. 1, 13, 312 N.W.2d 657(1981).The issue upon review is whether the photographs are substantially necessary or instructive to show material facts or conditions or merely calculated to excite passion and prejudice.People v. Falkner, 389 Mich. 682, 209 N.W.2d 193(1973).

We find that these photographs were neither substantially necessary nor instructive to show a material fact and were introduced only to excite the jury's passion and prejudice.Admitting these photographs caused a manifest injustice.Accordingly, we reverse.

The photographs were used twice at trial and only to establish that the extensive wounds they depicted were those of Thomas Brooks.The nature of the wounds, however, did not serve to rebut [122 MICHAPP 115]defendant's alibi defense; nor was it relevant to any element of first-degree murder.As Judge Bronson said in People v. Wallach, 110 Mich.App. 37, 67, 312 N.W.2d 387(1981):

"Since defendant did not deny that the victims were brutally killed, but only his participation in the killings, the photographs were improperly admitted.They had no probative value in tending to establish first-degree murder as opposed to some other type of killing nor any value in rebutting defendant's defense.Moreover, at least some of the photographs, particularly the color shots, may well have had a tendency to inflame the jurors and distract their attention from truly probative evidence."

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