People v. Williams

CourtCourt of Appeal of Michigan (US)
Citation172 N.W.2d 515,19 Mich.App. 291
Docket NumberDocket Nos. 4723,6088,No. 1,1
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wavie WILLIAMS, Jr., (in 4723) and Johnnie Sylvester Gardner, (in 6088), Defendants-Appellants
Decision Date09 December 1969

Irving Tukel, Detroit, for Williams.

Harold Koenigsberg, Detroit, Justin C. Ravitz, Detroit, of counsel, for Gardner.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Arthur N. Bishop, Asst. Prosecuting Atty., Wayne County, Detroit, for appellee.

Before HOLBROOK, P.J., and McGREGOR and BRONSON, JJ.

Opinion on Rehearing

HOLBROOK, Presiding Judge.

Defendants Johnnie Sylvester Gardner and Wavie R. Williams, Jr., were tried in a joint trial and convicted by a jury in the recorder's court for the city of Detroit, on June 16, 1967, of the crime of assault with intent to rob and steal being armed (C.L.1948, § 750.89 (Stat.Ann.1962 Rev. § 28.284)) and the crime of assault with intent to commit murder (C.L.1948, § 750.83 (Stat.Ann.1962 Rev. § 28.278)). Both defendants were represented at the trial by the same retained counsel. Neither defendant took the witness stand. Defendant Gardner was sentenced to prison for a term of 11 to 20 years and defendant Williams for a term of 17 to 35 years. Evidence was presented by the prosecution showing that on the evening of November 11, 1966, 3 men entered the Y & B Market, armed with pistols, and proceeded to demand money from owner Albert Yezbick and his son, Victor Yezbick. They departed after one of the men shot and wounded Albert Yezbick. Victor Yezbick, using a gun which was kept in the store, fired three shots at the men as they fled onto Milwaukee street from John R. street. A passerby, Thomas Phelan, armed under a concealed weapon permit, testified to having chased the three men on foot after they fled from the store brandishing weapons, with Phelan firing shots at them and at the get-away car located on Milwaukee, around the corner from the Y and B Market. Both described the get-away car as a Blue Oldsmobile convertible with white top.

Witness Phelan testified on direct examination in part as follows:

'Q. Do you know if there was anyone in the car, in the Oldsmobile, when they ran to it?

'A. Yes, there was.

'Q. When they got in there would be four persons altogether?

'A. Yes.

'Q. Could you identify the person that was in the car?

'A. No.

'Q. What did you do then when they got in the car?

'A. I opened fire on the automobile.

'Q. How many shots in all did you fire?

'A. Six; one in the tire, one in the bumper, three into the trunk and one in the back window.'

A 1960 Oldsmobile meeting this description was examined by a patrolman at a Detroit motel on December 3, 1966. He testified that the car contained numerous holes in the body, appering to be bullet holes, and in the convertible top, side and rear view mirror. Defendant Gardner, taken into custody at that time, stated to the patrolman that the car in question was his. The car was subsequently determined to have been registered to a John S. Gardner.

Wiley Richardson, Jr., owner of a service station a block from the scene of the crime testified that he had identified defendant Gardner in a line up sometime after November 11, 1966, 'maybe about a week later, two weeks later, * * * I couldn't recall.' The witness identified Gardner again, at the trial, as having entered his station on foot at approximately 6 o'clock on the night in question accompanied by two companions. Gardner asked to use the restroom, got the key and went to the outside restroom. The witness testified that after Gardner brought the key back the witness looked out the window and saw three men going toward the Y and B Market. He did not know whether Gardner was one of the three.

Defendant Gardner was not identified as having been in the Y and B Market at the time of the offense. Defendant Williams was identified by Victor Yezbick in a line up and again at trial. Witness Yezbick testified as follows:

'Q. About 6:10 P.M., around that time, 6:00 o'clock P.M., did a number of men enter the store?

'A. Yes, three young men.

'Q. Were there customers in at the time they entered the store?

'A. Three customers.

'Q. All right. Fine. What happened when they entered the store?

'A. Well, they first went over to the meat counter, which is over to the far end of the store. I saw them when they come in. I usually observe everybody that does come into the store and I walked parallel to them, to the side, and they asked my dad for hot dogs; got a pound of hot dogs. Usually I observe when strange people come in. I keep them under observation. And I knew they were up to something. I didn't know they were up to that. But when there are three of them coming in buying hot dogs, there is something wrong.

'Q. You were watching them?

'A. I was watching them, yes.

'A. He said, 'This is a stick up. Nobody moves.' Nobody heard them or paid attention. Then he said it again, 'This is a stick up. Don't nobody move.' And I tried to get them away from my father, because he was retired and I know him. Because he won't give them nothing. I was trying to get them away from my father and he just finished with the customer, and he had a big bill and he handed it to me and one fellow says, 'I will take that, too.'

'Q. Can you identify any of these men in the store?

'A. Yes.

'Q. Which one?

'A. Williams.

'Q. The one seated in the back?

'A. Yes.

'THE COURT: * * * The record will now stand that he identified Wavie Williams.

'Q. Now, what did Wavie Williams in particular do? What was his part in this that you saw?

'A. He come behind the cash register. The three of them spread out. One came behind the cash register. He came behind the cash register. This other fellow that is dead, he was in the middle.

'Q. What happened when Williams went behind the counter?

'A. He said, 'Come on. Give me all your money. Let's go.'

'Q. Was there one distinguishing factor that caused you to identify this person as the person being in your store that Friday on November 11?

'A. Himself. That I saw the face before.

'Q. Is there any way that you could be mistaken about your identity of this individual?

'A. No. When he walked I observed his walk. When he walked in I observed the up and down walk, the strut. I observed that.'

Sidney Freeman, a customer who was in the store when the three armed men entered, identified Williams as having been one of the three men. His testimony was in part as follows:

'Q. Are you familiar with the Y and B Market in the City of Detroit?

'A. Yes, sir.

'Q. Do you trade at the store?

'A. Yes, sir.

'Q. Did you have occasion to go there on a Friday of last year in November, November 11, 1966, in particular?

'A. I go there everyday.

'Q. Did you happen to be there that Friday about 6:00 o'clock in the evening?

'A. I was there.

'Q. What did you see at that time, if anything?

'A. I see'd him get shot.

'MR. CONNOR: Let the record show that he (is) pointing to and identifying Albert Yezbick.

'Q. Did you see the man that did the shooting?

'A. Yes, sir.

'Q. Can you identify him?

'A. Yes.

'Q. Look around the courtroom and see if you see him here.

'A. There he is.

'Q. Which man in particular are you indicating over there? Point again. I couldn't make out who you were pointing to.

'A. The man sitting behind that man there.

'Q. The man with the black shirt on?

'A. Yes.

'MR. CONNOR: Let the record show that he is pointing to and identifying the defendant Wavie R. Williams.

'Q. He was one of the men in the store and he did the shooting?

'A. Yes.

'Q. Are you sure he did the shooting or he was just there?

'A. I am sure. I see'd it.

'Q. He had a gun?

'A. Sure, he had a gun.'

Defendants appealed their convictions, each raising several assertions of error in the lower court proceedings. The following issues are raised by defendants on appeal.

1. Was the admission into evidence of Co-defendant's (Gardner's) oral exculpatory statement implicating defendant Williams violative of Williams' Sixth Amendment right of cross-examination where defendant Gardner did not testify?

Defense counsel proceeded in the trial of this cause upon the theory that both defendants denied having taken any part in the holdup of the Y and B Market on November 11, 1966. The record is clear that on December 4, 1966, Detective Gilbert Hill had a conversation with defendant Gardner at the Hold-up Bureau and that at that time defendant Gardner made a statement which was subsequently admitted at the trial. In the presence of the jury, Detective Hill testified as to the substance of defendant Gardner's statement:

'Q. As near as you can recall, what was your conversation?

'A. He told me that he was driving--that, 'We were driving down John R,' and they pulled over at Milwaukee and John R, I believe it was, so that he could go to the bathroom. He told me that he went into the bathroom, came back to the car, and when he came back to the car Wavie Williams, Herbert Farmer and John Anthony said they were going to the store to get some beer to check it out. He told me that he was scared and that he said he asked them what they were going to do, and they walked on to the store. He stated that he remained in his car. He walked back to the corner, got out of the car once and walked back to the corner and looked around the corner and he saw guns coming out and heard all of this shooting. He stated at this time that he got scared and ran and got into his car and started it up and attempted to pull away from the curb. I believe he stated that he had a little trouble getting out. I don't know if because of the parked cars or what.

'But by this time he heard all the shooting and Wavie Williams came and got in the car and he asked him, 'Man,...

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