People v. Stockard, Docket No. 13032

• Decision Date: 27 August 1973
• Docket Number: Docket No. 13032,No. 2,2
• Citation: 48 Mich.App. 680,211 N.W.2d 62
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip STOCKARD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 62

211 N.W.2d 62

48 Mich.App. 680

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip STOCKARD, Defendant-Appellant.

Docket No. 13032.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1973.

Released for Publication Oct. 18, 1973.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ADAMS,* JJ.

DANHOF, Judge.

Defendant was charged with counts of first- and second-degree murder in the death of William Clark. He was convicted by a jury of manslaughter, M.C.L.A. § 750.321; M.S.A. § 28.553, and was sentenced to a term of 14 to 15 years in prison. He appeals. We affirm, but correct defendant's minimum sentence.

The victim, William Clark, 16 years old, was riding in the front passenger seat of a Volkswagen automobile travelling north on Airline Drive in the City of Jackson on September 13, 1969. As the automobile passed High Street at approximately 9:30 p.m., the driver and the passengers in the back seat heard a 'loud pop of the window'. Clark had been shot in the head. The driver of the vehicle drove directly to the city police department where officers provided an escort to Foote Hospital. Upon arrival, the victim was pronounced dead.

Approximately 35 witnesses testified at trial. The most damaging evidence against defendant consisted of his own in-custody admissions and the testimony of one Ronald Cotton.

Cotton testified that he and defendant attended a meeting with about 15 other persons in the evening of September 13, 1969. The subject of the meeting was evidently a disturbance involving the police that had occurred at a football game the night before. Cotton, defendant, and 2 others left meeting. They had guns. According to Cotton, they intended to--

'Well, shoot these guns, you know, out in public, you know, draw the police around, maybe take some shots at police or policeman or something, you know.'

Cotton further testified that he was with defendant in the vicinity of Airline Drive at approximately 9:30 p.m. on the night in question; that Cotton was firing a shotgun and defendant was firing a .22-caliber rifle onto the highway at passing vehicles; that there was a Volkswagen among the group of cars shot at ant that he (Cotton) saw that someone had been hit.

While in custody, defendant made statements in which he admitted to being in the vicinity in question with Cotton on the night of September 13 and to firing a .22-caliber rifle onto the highway. He stated that he did not intent to shoot anyone, but rather to shoot over cars. He was not aware that anyone had been hit until he had read about it in the newspaper on the following day.

I

Defendant first argues that the trial court erred in failing to grant a change of venue in the face of pretrial publicity and knowledge by prospective jurors of the criminal incident. In his motion for change of venue, defendant alleged the following: defendant had been linked by the media to an organization called the Black Beret; that organization and the killing of Clark, a white youth, had received considerable media coverage; because of hostility in the city and county of Jackson to members of the Black Beret, and racial tension in general, it would be impossible for defendant to receive a fair trial in the county.

Following a hearing, at which several witnesses testified, the motion was denied with the proviso that it could be renewed should the court be unable to secure a fair and impartial jury. At voir dire, defense counsel challenged for cause all those prospective jurors who had expressed knowledge of the crime or had been exposed to articles about the Black Beret organization. The challenge was denied on the basis of the juror's statements that each would base his judgment solely on the evidence. Finally a jury was selected after defense counsel had exercised 18 of 20 peremptory challenges.

The grant or refusal of a change of venue is within the sound discretion of the trial court. The burden of proof is on the party seeking the change. The trial court's ruling will be reversed only where an abuse of discretion appears. People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912), People v. Dailey, 6 Mich.App. 99, 148 N.W.2d 209 (1967). It does not appear that the testimony of defendant's witnesses at the hearing established the impossibility or even improbability of impaneling an impartial jury.

Exposure of prospective jurors to publicity concerning the case does not automatically require their exclusion from the panel. In People v. Jenkins, 10 Mich.App. 257, 261, 159 N.W.2d 225, 228 (1968), it was stated:

'Jurors who have heard of or have read of the case, without more, are not disqualified as jurors, and their inclusion does not deny defendant a fair trial. See People v. Quimby (1903), 134 Mich. 625, 96 N.W. 1061; People v. Schneider (1944), 309 Mich. 158, 14 N.W.2d 819; People v. Dailey, Supra. A juror who has formed an opinion may not be challenged for cause, providing the opinion is not positive in character, and he may render an impartial verdict.'

See also People v. Garland, 44 Mich.App. 243, 205 N.W.2d 195 (1972). Furthermore, the fact that defense counsel chose not to exercise all peremptory challenges militates against defendant's argument of jury bias. People v. Collins, 43 Mich.App. 259, 263, 204 N.W.2d 290, 292 (1972); People v. Greene, 42 Mich.App. 154, 155--156, 201 N.W.2d 664, 665 (1972). We find no abuse of discretion in the trial court's denial of defendant's motion for a change of venue.

II

Defendant next claims that the exclusive use of voter registration lists in Jackson County for selecting the jury array denied him of a jury composed of a valid cross section of the community. This issue was decided contrary to defendant's position in People v. Robinson, 41 Mich.App. 259, 262--263, 199 N.W.2d 878, 880 (1972). See also People v. Porter, 46 Mich.App. 477, 208 N.W.2d 182 (1973).

III

Defendant argues that the failure of the prosecuting attorney and the trial court to inform the jury that the leading prosecution witness had received immunity for his testimony constituted a denial of due process of law. However, from the record it appears that defense counsel was aware from the very beginning of the grant of immunity to Ronald Cotton. The preliminary examination of defendant was held in the 13th District Court on the 20th, 21st, and 22nd days of August, 1970. Defense counsel, Charles Brown, was representing defendant at that time as well as throughout the entire trial. On August 21, 1970, the prosecution sought and the circuit court granted immunity to Cotton from any criminal prosecution growing out of events about which he testified at the examination.

At trial, it was defense cousel who asked that the jury be excused when Cotton was called to the stand. Defense counsel then challenged the competency of the witness to testify on the grounds that he had a record of psychiatric difficulties. The court ruled that the witness's psychiatric record went to the weight of his testimony, and was not grounds for his exclusion. The prosecutor then reminded the court and defense counsel that Cotton had been granted immunity. The trial court acknowledged the earlier order granting immunity and interpreted it to apply to Cotton's trial testimony. The jury was then recalled. Upon cross-examination of Cotton, defense counsel did not choose to explore the grant of immunity, but rather, was more interested in questioning Cotton about a felony charge, arising out of an entirely different incident, pending against him. The prosecutor initially objected, but later withdrew his objection. Defense counsel proceeded to elicit the fact that Cotton had a charge of assault with intent to commit murder pending against him and that he was presently on bond.

The record further reveals that, during a subsequent conference between the court and counsel on proposed jury instructions, there was never any request by defense counsel that the jury be instructed as to Cotton's immunity. Defense counsel did not refer to the grant of immunity in final argument. Counsel's failure to raise the issue of Cotton's possible bias on cross-examination, in final argument, or by way of requested instructions to the jury appears to have been a deliberate choice of trial strategy.

Cases cited by defendant in support of his argument are clearly distinguishable. In People v. Evans, 30 Mich.App. 361, 186 N.W.2d 365 (1971), Evans's codefendant, Tanner, pled guilty to a lesser offense after giving extremely damaging testimony to both himself and Evans at their joint trial. Evans's counsel requested that the jury be informed that Tanner had pled guilty to a lesser offense. The trial court's refusal to so instruct, or indeed to give any explanation for the fact that Tanner was no longer on trial, was held to be reversible error.

A factual situation parallel to that which prevailed in Evans, supra, evolved in People v. Love, 43 Mich.App. 608, 204 N.W.2d 714 (1972). There charges against Rebecca Love, Jesse Love's sister and codefendant, were dismissed just before the trial court delivered its instructions to the jury. Rebecca Love had given the only testimony implicating her brother in an alleged extortion plot. The trial court refused defense counsel's request that the jury be apprised of the fact that charges against Rebecca Love had been dropped upon motion of the prosecutor. The trial court also refused a requested jury instruction to the effect that an accomplice's testimony should be weighed carefully. These 2 refusals by the trial court were held to constitute reversible error.

In People v. Nettles, 41 Mich.App. 215, 199 N.W.2d 845 (1972), disclosure was made at trial, out of the presence of the jury, that witnesses Kimble and Brown had agreed to testify against defendant...