People v. Taylor

• Decision Date: 09 November 1971
• Docket Number: No. 38,38
• Citation: 386 Mich. 204,191 N.W.2d 310
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Marshall TAYLOR, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 310

191 N.W.2d 310

386 Mich. 204

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Marshall TAYLOR, Defendant and Appellant.

No. 38.

Supreme Court of Michigan.

Nov. 9, 1971.

Thomas G. Plunkett, Pros. Atty., Oakland County by Dennis Donohue, Chief Appellate Counsel, for plaintiff and appellee.

Seymour Berger, Detroit, for defendant and appellant.

Before the Entire Bench.

WILLIAMS, Justice.

The major issue presented by this case is whether due to the erroneous submission of two counts of perjury to the jury, we should reverse defendant-appellant's conviction one a third count of perjury, and grant him a new trial as to that count.

Defendant was indicted on three counts of perjury on March 24, 1966, by the Honorable Philip Pratt, sitting as a One Man Grand Jury for Oakland County. At the start of a preliminary hearing held on October 5th and October 26, 1966, before Municipal Judge Hunter for the City of Clawson, the transcript of defendant's testimony before the Grand Jury was admitted into evidence. Defendant's own retained counsel was present at the preliminary hearing and raised no objection to the introduction of the transcript. Defendant was subsequently bound over for trial on all three counts of perjury to the Oakland County Circuit Court. The defendant was convicted by a jury of all three counts of perjury.

The Court of Appeals, 18 Mich.App. 381, 171 N.W.2d 219, reversed the convictions for the first and second counts of perjury on the grounds that there was no evidence upon which to submit them to the jury. The conviction on the third count of perjury was, however, affirmed by the Court of Appeals. The Court then remanded for resentencing in light of its opinion. Defendant's application for leave to appeal to this Court was granted.

We agree with the Court of Appeals that there is no evidence in the record to support the convictions on the first two counts of perjury, and thus those two convictions are reversed.

We agree with the Court of Appeals' affirmation of defendant's conviction on the third count of perjury. Defendant is not entitled to a retrial on the third count of perjury simply because the first and second counts were wrongfully submitted to the jury. The cases cited by the defendant on this issue are not on point as they concern situations involving lesser included offenses. In the instant case the charge on each of the three counts was identical, and defendant was convicted on each count. Since the counts were all for the same crime, and since the defendant was convicted on each count, there is no danger here that the jury reached a compromised verdict. Therefore a new trial on the third count of perjury is not necessary.

The United States Supreme Court case of Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957) is precedential as to this case. In Nilva, the defendant was convicted on three specifications of criminal contempt. On appeal, the Government abandoned two of the three specifications. The conviction on the third specification, however, was affirmed. Since a general sentence had been imposed on all three specifications, the case was remanded for a resentencing.

Had the defendant been sentenced separately on each count, such action could have obviated the necessity for remand. Since the sentence in the instant case was also a general one, the Court of Appeals was correct in remanding this case for a resentencing.

Defendant makes several other contentions of error in his brief which can be disposed of with dispatch. First, he alleges that the examining magistrate erred by admitting at the preliminary hearing the transcript of the defendant's testimony before the Grand Jury. The record of the preliminary hearing clearly indicates that the defendant's own retained counsel failed to raise a timely objection to the introduction of the transcript. This Court will not consider issues not raised in the court below. Lake Erie Land Co. v. Chilinski, 197 Mich. 214, 226, 163 N.W. 929 (1917).

Defendant contends that by subsequent qualification his negative answer to the question which was the basis for the third count of perjury became an affirmative, and thus non-perjurious, answer. We cannot accept this argument. Even with his qualification, the defendant in effect denied that he had any personal knowledge of any bribes to township officials.

As opposed to this denial, one witness testified that he, a township official, had been bribed by the defendant. This testimony, apparently believed by the jury, is sufficient to sustain the conviction on the third count of perjury.

Defendant's final allegation of error is that defense counsel's cross-examination of a Mr. Thomas Bowles, Sr. was unduly restricted. This Court has stated on numerous occasions that a trial judge has a great deal of discretion in limiting cross-examination. Such discretion is not subject to review unless a clear abuse of it is shown. Gilchrist v. Gilchrist, 333 Mich. 275, 282, 52...