People v. Wadkins, Docket No. 43915

• Citation: 300 N.W.2d 542,101 Mich.App. 272
• Decision Date: 04 November 1980
• Docket Number: Docket No. 43915
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Lynn WADKINS, Defendant-Appellant. 101 Mich.App. 272, 300 N.W.2d 542
• Court: Court of Appeal of Michigan — District of US

Page 542

300 N.W.2d 542

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Lynn WADKINS, Defendant-Appellant.

Docket No. 43915.

101 Mich.App. 272, 300 N.W.2d 542

Court of Appeals of Michigan.

Nov. 4, 1980.

Released for Publication Jan. 29, 1981.

Lawrence J. Emery, Lansing, for defendant-appellant.

[101 MICHAPP 276] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Charles M. Sibert, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KELLY and CORSIGLIA, ^* JJ.

CORSIGLIA, Judge.

The defendant, Jeffrey Lynn Wadkins, was convicted by a jury of breaking and entering a building in violation of M.C.L. 750.110; M.S.A. 28.305. Subsequently he pled guilty to a supplemental information charging him as a third offender under M.C.L. 769.11; M.S.A. 28.1083. He was sentenced to 5 to 20 years in prison. He appeals as of right.

On the morning of the day set for trial, after the jury had been called and the witnesses had been subpoenaed, the defendant's attorney requested an adjournment. He argued "that there are still other potential witnesses that I might or might not want to call". Defense counsel had been substituted five days prior to trial due to communication problems which had developed between the defendant and his previously appointed counsel. The trial judge denied the motion for an adjournment.

The trial judge based his decision on the timing of the request, its equivocal nature, and the power [101 MICHAPP 277] of the Court (offered to the defendant) to subpoena any additional witnesses that he might wish to call. Denial of an adjournment is within the discretion of a trial judge. Absent an abuse of discretion, this Court will not overturn such a decision. GCR 1963, 503. People v. Williams, 386 Mich. 565, 194 N.W.2d 337 (1972); People v. Parker, 76 Mich.App. 432, 257 N.W.2d 109 (1977). No abuse of discretion is evident in this case.

Testimony at trial indicated that sometime between 3:00 p. m. Saturday, September 16, 1978, and the following Monday morning, the Auto Salvage Company in Lansing, Michigan, was broken into and certain tools were stolen.

Richard Gearhart, a Lansing City Police Officer, testified that on September 17, 1978, at 6:00 p. m. he answered a silent alarm at the Auto Salvage Company. He stated that when he arrived, he observed an individual crawling from a window of a barn on the property. He further testified that although he ordered him to freeze, the person was able to get out of the window and run from him. Officer Gearhart testified that he ordered the person to "stop or I'll shoot" and when the person appeared to point a gun-like object at the officer, he fired one round, the person dropped to the ground, then got up and ran to a wooded area. Officer Gearhart testified that he heard a car door slam, and he approach the defendant's car, ordered him out, and arrested him. He stated that the defendant did not appear intoxicated.

The defendant's case was based on a defense of intoxication. Attempts to cross-examine two officers of the Lansing Police Department regarding statements made the next day by the defendant at the city jail regarding his drinking the prior day were properly excluded as self-serving hearsay not [101 MICHAPP 278] qualifying under any exception. See People v. Perryman, 89 Mich.App. 516, 280 N.W.2d 579 (1979).

The officer who frisked the defendant after Officer Gearhart arrested him testified that he found no odor of alcohol on the defendant, nor did he observe other indications of intoxication.

Out of the presence of the jury, the defendant called Patrick Parker to the stand as his first witness. Mr. Parker was a charged accomplice in the case. He asserted his Fifth Amendment privilege not to testify. Since this privilege was properly asserted out of the presence of the jury, no reversible error occurred. People v. Giacalone, 399 Mich. 642, 250 N.W.2d 492 (1977). The defendant then called, still out of the presence of the jury, Jane Parker, Patrick Parker's wife. The Court was informed that she "may assert a husband-wife privilege". Mrs. Parker testified on direct examination that the defendant was drunk about 2:30 in the afternoon on September 17. The last time she saw him, according to her testimony, was at approximately 3:30 p. m. and that he was drinking at that time.

When the prosecutor attempted to cross-examine her regarding the activities of her husband on the afternoon in question, her attorney (who also represented her husband) asserted the "spousal privilege" on her husband's behalf, and with her apparent consent. The following colloquy occurred:

"Q. (by Mr. Edwards, the prosecutor): Approximately three o'clock, isn't it true, that your husband was working on a Datsun?

"MR. DEITRICK (attorney for the Parkers): Your, Honor, at this time on behalf of her husband, Pat Parker, we would assert the husband-wife privilege with regard to any questions which might relate to [101 MICHAPP 279] what Mrs. Parker observed her husband doing that afternoon.

"MR. EDWARDS: Your Honor, I have told Mr. Deitrick and Mr. Oesterle before that I agreed that Mr. Parker has a marital privilege, and merely because he is not the Defendant in this matter does not prohibit him from exercising marital privilege. My objection goes to the fact that what, in effect, is occuring (sic) is that the Defense calling a witness who will answer questions for him, but then when we get into areas that I believe to be relevant and material to the case will refuse to answer those questions based upon the invocation of the marital privilege, thus denying me a right to cross-examine.

"MR. OESTERLE (attorney for defendant): Your, Honor, Miss Parker's testimony in this matter is clearly relevant, and it is clearly essential for the Defense in this matter. Mr. Edwards would have the right to cross-examine Miss Parker on anything relating to the intoxication until such time as the husband-wife privilege is invoked. Until we know how far that is going to go, I think her testimony can go in front of the Jury.

"THE COURT: Well, Mr. Oesterle, what if we take a situation, you know, if they were working on a car together and the ability of Mr. the Defendant to work on the car with this other person, her observations of them working together, if they got in the car and left and as an example, if the Defendant was driving, there is a tremendous amount of information here which certainly could be very germane to the condition of the Defendant which would be totally cut off by this type of approach.

"MR. EDWARDS: Your Honor, in the examination of the statute, it seems as though there is a right to invoke privilege, but it doesn't seem to say that you can pick and choose where it comes in. If you are going to invoke the privilege, you are going to invoke the privilege. If he invokes the privilege, it would appear as though the witness may not testify, and that he is invoking the privilege."

[101 MICHAPP 280] Further argument was heard by the court, and authorities were considered over a brief recess.

The court then ruled that Jane Parker would not be permitted to testify before the jury on any matters. No further record was made to determine the extent of the conflict between the areas into which the prosecution sought to inquire and the asserted privilege. The trial judge stated:

"The Court is of the opinion that the Prosecutor, as well as Defense, the Defendant, is entitled to proper and thorough cross-examination to the extent that that cross-examination is for all practical purposes made ineffectual by the lack of the opportunity to fully examine a witness. Either party is deprived of their right. Certainly a very crucial witness in any trial. In this case it can the prosecutor has distinguished from certain other cases. The Court is of the opinion that if we take the approach that the person may testify and then the testimony is to be stricken, is virtually saying to the Jury you may hear all of the evidence. There is no way that they can strike it from their minds. So that the Court is of the opinion that the witness should not be permitted to testify at all if they are going to assert a privilege such as that which has been asserted in this particular matter."

Subsequently, the defendant introduced testimony before the jury to support his defense of intoxication. Vicki Bishop, a bartender at Elk's Lodge, testified that the defendant drank about a fifth of vodka in a gallon of Bloody Marys at a bartender's meeting on September 17, and that he was drunk.

Debra Parker, Patrick's sister and the defendant's girlfriend, testified that the defendant had been drunk the night of September 16, and was drunk on September 17 in the afternoon. During cross-examination, after laying a proper foundation,[101 MICHAPP 281] the prosecutor used a prior inconsistent statement made by Ms. Parker to him in an attempt to impeach her credibility. This was permissible cross-examination. MRE 613(a).

The defendant testified that he was an alcoholic or had a serious drinking problem, that he drank Bloody Marys at the bartender's meeting, and that the next thing that he remembered is Debra Parker waking him while he was sleeping in a car. He also testified that he did not intend to break and enter into the Auto Salvage Company, and that he did not intend to steal.

The Court has carefully examined the record in this case, the briefs filed and the supplemental briefs on appeal. The errors raised by the defendant do not merit reversal. We specifically find that the exclusion of the testimony of Jane Parker by the trial judge was harmless error beyond a reasonable doubt because of the cumulative nature of her proffered testimony. The mere number of witnesses presented for a party on an issue is irrelevant in determining where the truth lies. People v. Hagle, 67 Mich.App. 608, 617, 242 N.W.2d 27 (1976). It is clear that testimony by one...