People v. Thomas, Docket No. 16319
| Decision Date | 10 September 1974 |
| Docket Number | Docket No. 16319,No. 1,1 |
| Citation | 222 N.W.2d 320,55 Mich.App. 368 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman THOMAS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gerald M. Lorence, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.
Before BASHARA, P.J., and DANHOF and CHURCHILL,* JJ.
Defendant was found guilty by a jury of armed robbery, M.C.L.A. 750.529; M.S.A 28.797; and of first-degree murder, M.C.L.A. 750.316; M.S.A 28.548. He appeals his conviction which arose from a retrial after initial litigation on the same charges resulted in a hung jury.
The controversy in this appeal stems mainly from the testimony of a prosecution witness, Beverly Crawford, who was defendant's accomplice. Miss Crawford, prior to her testimony in both the first and second trials, pled guilty to attempted armed robbery. M.C.L.A. 750.529, M.S.A. 28.797; M.C.L.A. 750.92; M.S.A. 28.287. At defendant's first trial Miss Crawford allegedly admitted on cross-examination that she was a narcotics user and had participated in the 'murphy game' 1. At the second trial Miss Crawford refused to answer these same questions on cross-examination, standing on her right against self-incrimination.
It should be noted Miss Crawford did not waive her right to take the Fifth Amendment in the second trial after she testified in the first trial that she was a narcotics user and a 'murphy game player.' People v. DenUyl, 318 Mich. 645, 29 N.W.2d 284 (1947); In re Neff, 206 F.2d 149 (C.A. 3, 1953).
Defendant asserts he was denied his right to cross-examine Miss Crawford as to her credibility, when the judge allowed her to assert the privilege against self-incrimination.
On cross-examination an accomplice cannot invoke the privilege against self-incrimination about her involvement in the crime where on direct examination she has given testimony incriminating defendant in a common criminal enterprise. People v. Mobley, 390 Mich. 57, 210 N.W.2d 327 (1973); Foster v. People, 18 Mich. 266 (1869). That principle however, is distinguishable from the case at bar. Miss Crawford did not invoke the privilege against self-incrimination in response to cross-examination concerning her involvement in the same criminal activity for which defendant was tried and convicted. Rather, she invoked the privilege only in response to cross-examination concerning her involvement in other criminal activity not related to defendant's prosecution.
In these circumstances the privilege against self-incrimination was meaningfully asserted. The witness may have been forced to make incriminating admissions which could have been used against her in future prosecutions. No information concerning these other alleged criminal activities had been previously elicited on direct examination in this trial.
Although Miss Crawford properly invoked her Fifth Amendment rights at the retrial, her credibility could have been impeached by the use of prior statements made at the first trial. Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The trial court expressly informed defense counsel he could impeach Miss Crawford's testimony concerning her narcotics use and the 'murphy game' by reading her testimony in the first trial to the jury. Defense counsel declined to do this.
Defendant was therefore, not denied his right to cross-examine Miss Crawford when she was allowed to assert her privilege against self-incrimination.
Defendant also contends the trial court failed to instruct the jury to consider that Miss Crawford had been allowed to plead guilty to a lesser included offense. Defendant overlooks the fact that no request for any such instruction or objection to the trial court's instructions was made by defendant at trial. This assignment of error cannot be considered on appeal where there is no showing of manifest injustice. We find none here. People v. McPherson, 38 Mich.App. 534, 197 N.W.2d 173 (1972).
It should be noted that the recent Michigan Supreme Court decision of People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974), held that in certain circumstances a trial judge May sua sponte give instructions of the type defendant would have liked. However, McCoy, supra, does not apply to cases tried before the release of that opinion.
The third issue is whether defendant was denied a fair trial by his counsel's failure to obtain a transcript of the previous trial in order to impeach Miss Crawford. It is alleged that Miss...
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