People v. Watson

• Court: Court of Appeal of Michigan
• Writing for the Court: V. J. BRENNAN; T. M. BURNS
• Citation: People v. Watson, 217 N.W.2d 121, 52 Mich.App. 211 (Mich. App. 1974)
• Decision Date: 26 March 1974
• Docket Number: No. 1,Docket No. 14427,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe Eddy WATSON, Defendant-Appellant

Page 121

217 N.W.2d 121

52 Mich.App. 211

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe Eddy WATSON, Defendant-Appellant.

Docket No. 14427.

Court of Appeals of Michigan, Division No. 1.

March 26, 1974.

Released for Publication April 30, 1974.

Leonard Townsend, Grubbs, Smith & Townsend, 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., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and VanVALKENBURG,* JJ.

V. J. BRENNAN, Presiding Judge.

Defendant, Joe Eddy Watson, appeals from his conviction of first-degree murder (M.C.L.A. § 750.316; M.S.A. § 28.548) by a jury in the Recorder's Court of the City of Detroit.

On this appeal defendant initially asserts, as he did in his motion for new trial, that his conviction in sentence should be reversed because the jury's verdict was against the great weight of the evidence. The proper standard by which we must judge such a claim is whether the evidence presented during trial is sufficient to support a finding of guilt beyond a reasonable doubt. People v. Bynum, 21 Mich.App. 596, 175 N.W.2d 870 (1970), lv. den., 383 Mich. 776 (1970). In the case at bar it was clearly established that a gunman, during the commission of an armed robbery, shot and killed Richard Holley, the deceased. Although the identity of defendant as the gunman was hotly contested in the court below, we cannot say that the evidence presented was insufficient to support a finding of guilt beyond a reasonable doubt. People v. Hayton, 28 Mich.App. 673, 184 N.W.2d 755 (1970), lv. den., 384 Mich. 825 (1971). Witnesses were presented by the prosecution who testified that defendant was the person who shot the deceased and then bent over the body and removed his wallet. Defendant's alibi was ably presented and the prosecution's witnesses vigorously examined by defendant's attorney. The credibility of identification testimony is a matter left solely to the jury who, after listening to all the testimony and viewing the demeanor of the witnesses, chose to disbelieve defendant. We are not about to substitute our judgment for theirs. People v. Harper, 43 Mich.App. 500, 204 N.W.2d 263 (1972); People v. Hayton, Supra.

Defendant's second and third assignments of error focus on the conduct of the trial judge in the proceedings below. Defendant contends that he was denied a fair trial and his cause prejudicially influenced in the minds of the jurors when the trial judge questioned certain of the witnesses, interrupted and criticized defendant's attorney in the presence of the jury, and called a recess after defendant's attorney had begun to cross-examine one of the witnesses. We find defendant's allegations of error in this regard to be without merit. In order for us to find that the conduct of the trial judge constituted reversible error we would be required to say that what occurred prevented defendant from having a fair and impartial trial. People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972), civ. den., 388 Mich. 809 (1972); People v. Roby, 38 Mich.App. 387, 196 N.W.2d 346 (1972). This we are unable to do. The questions propounded by the trial judge were generally made in an attempt to clarify matters to which testimony had previously been directed and did not approach the degree of judicial impropriety condemned in People v. Bedsole, 15 Mich.App. 459, 166 N.W.2d 642 (1969). The further acts of the trial judge which defendant relies upon to establish that he was denied a fair trial, when examined in the context of this heated trial, are not of the 'magnitude necessary for reversal on the ground that the trial court pierced the veil of judicial impartiality'. People v. Turner, 41 Mich.App. 744, 201 N.W.2d 115 (1972), lv. den., 388 Mich. 790 (1972). See M.C.L.A. § 768.29; M.S.A. § 28.1052.

Defendant's next assertion is that the trial judge abused her discretion when she denied, on two occasions, defendant's requests that lineups be held, prior to any in-court identifications, for witnesses who had not confronted defendant prior to trial. Defendant properly recognizes that the decision to grant or deny such requests is left to the sound discretion of the trial judge. People ex rel. Ingham County Prosecutor v. East Lansing Municipal Judge, 42 Mich.App. 32, 201 N.W.2d 318 (1972). The test to be employed in determining whether the denial of such a motion requires reversal of a defendant's conviction was stated in the following terms by the Ninth Circuit Court of Appeals in United States v. Williams, 436 F.2d 1166, 1168--1169 (CA 9, 1970), cert. den. 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971).

'Absent abuse of that discretion resulting in procedure 'so unnecessarily suggestive and conductive to irreparable mistaken identification' as to amount to a denial of due process of law * * * we should not question the trial judge's ruling.'

Defendant has failed to establish any such abuse of discretion in this case. Accordingly, we hold that reversible error was not here committed.

Defendant next contends that the trial judge committed reversible error by allowing the prosecution to introduce certain time cards into evidence. Defendant asserts that the admission of this evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const.1963, art. 1, § 20 and the Sixth Amendment to the United States Constitution. The time cards upon which defendant bases this assignment of error were admitted into evidence only after defendant's attorney stated that he had no objection. The issue now sought to be raised by defendant with respect to the propriety of receiving these time cards into evidence is not, therefore, properly before us. Defendant's attorney, by stating that he had no objection to the admission of these time cards, acquiesced in their admission and defendant cannot now be heard to complain. This was not a situation where defendant's attorney failed to object to the proffered evidence, as was the case in People v. Lester, 50 Mich.App. 725, 213 N.W.2d 793 (1973), but, rather, was a situation where defendant's attorney, for whatever reason, acceded to the prosecution's offer of evidence. We, therefore, decline the invitation to consider this issue on appeal.

Defendant finally alleges that certain remarks made by the prosecutor during the trial and in closing argument were so prejudicial as to deny him his right to a fair trial. We have closely examined the remarks of the prosecutor made during the course of the trial and find ourselves unable to say that they were so prejudicial as to cause the jury to suspend its own power of judgment in receiving the evidence before it. People v. Gray, 45 Mich.App. 643, 207 N.W.2d 161 (1973); People v. Turner, Supra. The statements of the prosecutor made during closing argument which defendant also assigns as error were not objected to at trial. Since an objection and the appropriate curative...