People v. Walton, Docket Nos. 27888

• Decision Date: 01 April 1977
• Docket Number: Docket Nos. 27888,27927
• Citation: 255 N.W.2d 640,76 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WALTON and Edward Sanders, Defendants-Appellants. 76 Mich.App. 1, 255 N.W.2d 640
• Court: Court of Appeal of Michigan — District of US

Page 640

255 N.W.2d 640

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David WALTON and Edward Sanders, Defendants-Appellants.

Docket Nos. 27888, 27927.

76 Mich.App. 1, 255 N.W.2d 640

Court of Appeals of Michigan.

April 1, 1977.

Released for Publication July 20, 1977.

[76 MICHAPP 2] Campbell & Plachta by Charles Campbell, Detroit, for Edward sanders.

Alvin C. Sallen, Detroit, for David Walton.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Detroit, Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and R. B. BURNS and BEASLEY, JJ.

PER CURIAM.

Defendants appeal from their jury conviction of first-degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548.

The evidence at trial showed that on the evening of February 21, 1975, the decedent and several other men were helping decedent's sister move into a flat on Tyler Street in Detroit. An automobile driven by defendant Sanders and occupied by defendant Walton and three other men pulled up in front of the house. The occupants of the vehicle inquired as to the whereabouts of a "party" and some heated words ensued between the decedent and Sanders. Sanders informed the decedent that he had better not be around when they returned, and warned another mover not to be "standing next to him when we come back".

[76 MICHAPP 3] Sanders then drove the vehicle around the corner and into an alley. Sanders and Walton exited the vehicle and removed a sawed-off shotgun from the trunk. They got back in the vehicle and returned to the Tyler flat.

Sanders inquired as to the whereabouts of "big mouth". Decedent responded from the upstairs porch of the flat. Walton was holding the shotgun and asked Sanders if he should shoot him. Sanders answered "yes", and Walton fired at, and killed, decedent. The vehicle drove away.

Testimony as to the above chronology of events was offered by numerous of the movers and all of the occupants of the vehicle, save defendant Sanders. Mover Alvin Reed knew both Walton and Sanders from the streets and positively identified Walton as the gunman. Two other movers stated that the person behind the driver fired the shot, but could not identify this person.

Jacky Hicks, an occupant of the vehicle, testified under grant of immunity that Sanders gave the order and that Walton fired the shot. Angelo Shedrick testified that he had been sitting in the middle of the rear seat. On direct examination he could remember nothing about any shooting episode, but stated on cross-examination that Hicks, and not Walton, had been sitting behind Sanders and had fired the shot. This contradicted his preliminary examination testimony that it was Walton who had fired. Zachary Threatt, the other front-seat passenger, stated that it was Walton who had been sitting behind Sanders but that he, Threatt, had passed out from drink and could remember nothing about the episode. However, in an earlier statement to police he had stated that Sanders gave the order and that Walton had shot decedent. Walton's own testimony was that it was [76 MICHAPP 4] Hicks who had shot the decedent, and that he, Walton, and Sanders had tried to stop him.

Both defendants assert reversible error in the trial judge's exclusion of the allegedly exculpatory testimony of a "surprise" witness who had disregarded the court's sequestration order.

The sequestration order had issued at the very beginning of trial with the agreement of both counsel. It was read in open court to all of the spectators. The "surprise" witness, Larry Hicks (the brother of Jacky Hicks, had been present in the courtroom, had heard all of the testimony, and came forward only after the respective cases of the prosecution and defense had been presented. According to the defense, Larry Hicks would have testified that his brother had told him "that he (Jacky, a black male) shot a nigger", but didn't know if he was dead.

It is settled that the exclusion of witnesses in a criminal case is discretionary with the trial judge. M.C.L.A. § 600.1420; M.S.A. § 27A.1420. People v. Dickerson, 62 Mich.App. 457, 233 N.W.2d 612 (1975), People v. Insley, 36 Mich.App. 593, 194 N.W.2d 20 (1971). A thorough review of the transcript does not indicate that the judge abused this discretion by reaching a result "palpably and grossly violative of fact and logic * * * ". Spalding v. Spalding, 355 Mich. 382, 384, 94 N.W.2d 810, 812 (1959). See People v. Sawicki, 4 Mich.App. 467, 145 N.W.2d 236 (1966).

This case involved a particularly violent crime and a large number of res gestae witnesses with obviously competing interests. The credibility of the various witnesses was crucial to any jury verdict, and the trial judge viewed it necessary to insure that the witnesses testified without hearing one another. Larry Hicks heard the sequestration [76 MICHAPP 5] order, ignored it, listened to his brother's testimony, and waited three days before coming forward.

To his credit, the trial judge expressly declined the prosecutor's invitation to base his decision on the obvious aura of perjury and gang intimidation which pervaded the trial and which very...