People v. Taylor

• Citation: 46 Mich.App. 259,207 N.W.2d 899
• Decision Date: 23 April 1973
• Docket Number: Docket No. 12076,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kent TAYLOR, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 899

207 N.W.2d 899

46 Mich.App. 259

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kent TAYLOR, Defendant-Appellant.

Docket No. 12076.

Court of Appeals of Michigan, Division No. 2.

April 23, 1973.

Released for Publication June 15, 1973.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before BRONSON, P.J., and McGREGOR and DANHOF, JJ.

McGREGOR, Judge.

A jury convicted the defendant of first degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and from the mandatory life sentence duly imposed, defendant brings this delayed appeal by leave of this Court.

The evidence shows that, on the late afternoon of September 26, 1969, defendant and Robert Ward followed an automobile driven by Fred Otto to the vicinity of 819 Jefferson street, in Ypsilanti, Michigan; they were accompanied by a passenger. The defendant and Ward left their automobile at the corner walked to the vicinity of 819 Jefferson, and attempted to rob the driver of the other automobile; the driver, Otto, bolted from his car, ran south, and the defendant fatally shot him in the back. The defendant and Ward then ran to a pool hall, followed by Ward's auto, then driven by the former passenger.

Carlton Thomas, who lives at 819 Jefferson, testified that the victim came to his house at approximately 6:00 p.m. on September 26, 1969 to collect some insurance. Another witness, Aubrey Lee, testified that, on the evening in question, he was standing on Jefferson street with a friend; that two men came from behind the hedges near a vacant house on the corner, cross the street, and headed toward the victim's car; that the victim forced his way out of the car and began running towards this witness and his friend. The two unidentified men turned at the same time, the tall one paused, and there was a crack as if a firecracker had exploded. The victim put his hands on his back and screamed, 'They got me, they got me'. This witness further testified that the insurance man, the victim, was Caucasian, while his assailants were both Negroes, one short and one tall; that there was a streetlight on the corner past which the two men ran as they made their escape; that the shorter man wore a white jacket; that both men had Afro hairstyles; and that, before the victim forced his way from the car, both men had been pushing against the door. This carpushing testimony was crucial, since it led the police to process the decedent's car for fingerprints.

A fingerprint technician of the Michigan State Police testified that two latent prints, taken from the victim's car, matched defendant's known fingerprints, and the witness concluded that the marks on the car were made by the defendant's hand.

Another witness testified that he saw a man who stumbled as he ran south across Jefferson street; that he saw two other men beside a car parked on the north side of the street; that as the first man ran across the street, he was shot by the taller but lighter-weight of the two men; and that as he fell to the ground, the first man hollered, 'I'm shot, they got me, they got me, I'm shot'. The two assailants ran past the streetlight on the corner and the witness was able to ascertain that the pursuers were black.

A third witness named Franklin Wells testified that he was standing on the steps of a poolroom on Monroe Street, near Hamilton, on the night of the victim's death; that he saw a white man walk to a car parked on Hamilton; that two black men walked to the car but the white man drove away; the witness identified the two men as this defendant and Robert Ward. Wells then asked Ward for a ride to Ann Arbor; Ward agreed, and Wells sat in the back seat of the car, a green Lincoln Continental. This defendant sat in the front seat, while Ward drove. The three drove down Monroe to Jefferson, turned right on Brooks, and stopped near the corner. Someone said, 'Look', and Wells turned and saw a parked car similar to the one he had seen on Hamilton near the poolroom. Ward and the defendant left the car and told Wells they would be back in a few minutes. The last he saw of them, they were headed towards the back of the car; five minutes later, Wells saw the pair returning from that direction. Ward told him to drive the car to the poolroom and Wells did so. Wells later saw Ward and the defendant and returned the car keys to Ward. Wells further testified that at this later meeting, the defendant had altered his clothing somewhat, changing from a jacket to a suit coat, or something similar.

Some time later, Wells visited the Ypsilanti police station at the request of Robert Ford, who was in jail pending disposition of a marijuana charge against him; while there, the police asked to talk to Wells concerning the death of Fred Otto, the victim in the instant case. A police sergeant told this witness that if he refused to make a taped statement he would be arrested.

Robert Ford corroborated the testimony of Franklin Wells. Ford testified that upon the return of Ward and the defendant to the poolroom on Ramsey street, Ford asked the defendant for money he was owed; the defendant replied that he had no money, and the witness described the subsequent conversation:

'Q. And, what else was said at that time?

'A. I said that I heard, you know, they had some money.

'Q. Well, state exactly the words you used as best you can recall.

'A. I said I heard that they had robbed an insurance man or something like that.

'Q. And what did Kent Taylor state, exactly, as best you can recall his words, when you made that statement to him?

'A. He said that, you know, he didn't get no money and said the insurance man kicked him in the but (sic) or something.'

The witness further testified that about a half hour later, he talked to the defendant inside the poolroom, and when he stated that he had heard that an insurance man had been killed, the defendant told him, 'He said he had shot the guy but he didn't mean to do it'. This witness stated that he expected no favors for testifying at this trial. Before calling Wells to the police station, Ford made a statement on tape for the police.

Apparently, Ford received no favors for coming forward with his testimony; however, the sentencing on the marijuana charge which had originally been scheduled to take place before the trial of this defendant was postponed until after the trial.

Ward had also been charged with the murder of the insurance man, Fred David Otto, which charge was pending against him at the time he testified. Ward testified that, on the day of the Otto homicide, he was in the Ramsey street poolroom with the defendant, discussing ways of getting money; that they saw the insurance man and the defendant suggested that they ought to take his money; that the pair ran towards the insurance man's car but he got in and drove away; that the defendant suggested they follow the car, so they got into Ward's car and pursued the insurance man, accompanied now by Franklin Wells; that they saw the insurance man again on Jefferson near Brooks. Ward further testified that the two approached the insurance man's car from two sides, defendant on the driver's side, Ward on the other side, as the insurance man returned to his auto; that there had been no conversation concerning weapons, but as the victim got into his car, the defendant produced a gun, a small automatic pistol. The victim screamed, forced his way out of the car, and started to run, at which point the defendant shot him. Ward and the defendant then ran away. Ward stated that his own trial date had been set for March 25 1970, (trial of the instant matter was had on March 16, 18, 23, and 24, 1970) that no promises had been made in return for his testimony, but that he felt he had to testify in order to clear himself, that is, to save himself from a life sentence.

The record further shows that, one month later, Ward appeared before a circuit judge, at which time an assistant prosecutor moved that Count I (first-degree murder) of the information be dismissed, and that Count II (second-degree murder) be added. Ward pled guilty to the amended information and, on June 24, 1970, Ward was sentenced to 5 1/2 to 15 years in prison, with a recommendation that he not be sent to the same institution as defendant Kent Taylor.

At the time of Ward's plea, the assistant prosecutor stated that there had been conversations between the attorney for Ward, the prosecuting attorney, and Ward, a few days before the trial of this defendant, concerning whether or not Ward would testify.

At trial, this defendant presented no evidence, but chose to rely on his presumption of innocence and the failure of the prosecutor to prove him guilty of the crime charged beyond a reasonable doubt.

About one year later, on March 5, 1971, Ward signed an affidavit which was appended to this defendant's brief on appeal, in which he stated that his testimony at defendant's trial was a deliberate lie, given in exchange for the prosecutor's promise to get him out of the murder charge. Parenthetically, it should be noted that the record does not indicate that this affidavit has ever been filed in the trial court or in any other court, and is, therefore, not a part of the official record for our consideration.

Defendant contends that error occurred because the jury did not hear certain testimony or facts which might have borne upon the credibility of the prosecution witnesses.

It is defendant's contention that Ward testified that the last time he had spoken with the police was one month before defendant Taylor's trial. Yet it appears from the transcript of Ward's sentencing that there had been discussions between the prosecuting attorney and Ward and his attorney only a few days before this defendant's trial concerning whether or not Ward would testify against this defendant; that this was...