People v. Wadkins, Docket No. 43915
Court | Court of Appeal of Michigan (US) |
Writing for the Court | Before DANHOF; CORSIGLIA; DANHOF |
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 |
Page 542
v.
Jeffrey Lynn WADKINS, Defendant-Appellant.
101 Mich.App. 272, 300 N.W.2d 542
Released for Publication Jan. 29, 1981.
Page 543
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
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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,
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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,...
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People v. Love, Docket No. 72384
...It precludes all testimony regardless of whether the events at issue occurred before or during the marriage. People v. Wadkins, 101 Mich.App. 272, 282-283, 300 N.W.2d 542 (1980). The parties agree that Mrs. Love could voluntarily testify concerning the kidnapping prosecution since it grew o......
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Engberg v. Meyer, No. 87-15
...It was recognized "[i]n Michigan, for well over a century, the spousal privilege has been controlled by statute." People v. Wadkins, 101 Mich.App. 272, 300 N.W.2d 542, 546 (1980). See People v. VerMeulen, 432 Mich. 32, 438 N.W.2d 36 (1989). See also People v. Hamacher, 432 Mich. 157, 438 N.......
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People v. Warren, Docket No. 111745, Calendar No. 2.
...the events occurred before or during the marriage. People v. Hamacher, 432 Mich. 157, 161, 438 N.W.2d 43 (1989); People v. Wadkins, 101 Mich. App. 272, 282, 300 N.W.2d 542 (1980).12 A. People v. Quanstrom13 Over one hundred years ago, in People v. Quanstrom, this Court rendered a narrow int......
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People v. Armentero, Docket No. 78594
...88 S.Ct. 2010. 5 M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162. 6 398 Mich. 250, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977). 7 101 Mich.App. 272, 300 N.W.2d 542 (1980). 8 Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). 9 Wadkins, supra, 101 Mich.App. p.......
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People v. Love, Docket No. 72384
...It precludes all testimony regardless of whether the events at issue occurred before or during the marriage. People v. Wadkins, 101 Mich.App. 272, 282-283, 300 N.W.2d 542 (1980). The parties agree that Mrs. Love could voluntarily testify concerning the kidnapping prosecution since it grew o......
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Engberg v. Meyer, No. 87-15
...It was recognized "[i]n Michigan, for well over a century, the spousal privilege has been controlled by statute." People v. Wadkins, 101 Mich.App. 272, 300 N.W.2d 542, 546 (1980). See People v. VerMeulen, 432 Mich. 32, 438 N.W.2d 36 (1989). See also People v. Hamacher, 432 Mich. 157, 438 N.......
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People v. Warren, Docket No. 111745, Calendar No. 2.
...the events occurred before or during the marriage. People v. Hamacher, 432 Mich. 157, 161, 438 N.W.2d 43 (1989); People v. Wadkins, 101 Mich. App. 272, 282, 300 N.W.2d 542 (1980).12 A. People v. Quanstrom13 Over one hundred years ago, in People v. Quanstrom, this Court rendered a narrow int......
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People v. Armentero, Docket No. 78594
...88 S.Ct. 2010. 5 M.C.L. Sec. 600.2162; M.S.A. Sec. 27A.2162. 6 398 Mich. 250, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977). 7 101 Mich.App. 272, 300 N.W.2d 542 (1980). 8 Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). 9 Wadkins, supra, 101 Mich.App. p.......