People v. Wadkins, Docket No. 43915
Decision Date | 04 November 1980 |
Docket Number | Docket No. 43915 |
Citation | 300 N.W.2d 542,101 Mich.App. 272 |
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 |
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.
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:
[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:
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...
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