People v. Wright

• Decision Date: 26 June 1972
• Docket Number: No. 3,Docket No. 11652,3
• Citation: 41 Mich.App. 518,200 N.W.2d 362
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Solomon WRIGHT, Ill, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 362

200 N.W.2d 362

41 Mich.App. 518

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Solomon WRIGHT, Ill, Defendant-Appellant.

Docket No. 11652.

Court of Appeals of Michigan, Division No. 3.

June 26, 1972.

Released for Publication Sept. 15, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for appellee.

Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, ^* JJ.

HOLBROOK, Judge.

Solomon Wright, III, was arrested at the Grand Rapids Police Station by Detective William Pettiford on September 14, 1970. Mr. Wright had voluntarily responded in person to a police card left at his residence requesting him to contact Detective Pettiford. Solomon Wright was charged with breaking and entering a restaurant building on August 26, 1970, in violation of M.C.L.A. § 750.110; M.S.A. § 28.305. James M. Parker, manager of the First Choice Barbecue, testified to having caught defendant in the act of breaking and entering his place of business.

Fingerprinting tests run by Officer Frank Phillips at the scene of the alleged crime produced a number of smudged and clear prints. One of the clear prints, a left-hand palm print, belonged to Mr. Wright.

Defendant entered a defense of alibi which was supported by five witnesses. These witnesses testified to having seen and talked with Mr. Wright while he umpired and played baseball at the time the crime was alleged to have occurred.

The jury returned a verdict of guilty as charged and subsequently, on March 8, 1971, defendant was sentenced by the trial court to a term of from 3 1/2 to 10 years in prison. It is from his trial conviction and sentence that Solomon Wright appeals. Present counsel did not represent the defendant at trial.

Defendant raises 3 issues on appeal which we restate and consider in order.

I.

Did the trial court improperly answer questions asked by the jury after it had commenced its deliberations?

The jury, in the instant case, was instructed on the law on January 20, 1971, and retired to deliberate at 4:18 p.m. Subsequently, the jury presented the court with 3 questions: (1) Could the jury have all the exhibits; (2) is Solomon Wright right-handed or left-handed; and (3) is complainant Parker right-handed or left-handed? The jury was returned to the courtroom at 4:40 p.m. Thereupon the court addressed itself to the jury's questions:

'You have asked for the exhibits. Those have been gathered and will be brought into the juryroom after you return.

'Now, your two questions, is Solomon right-handed or left-handed and is Mr. Parker right-handed or left-handed.

'Ladies and gentlemen, as I advised you during the charge, you must rely on only the evidence which was presented to you during the course of the trial, and your memories of what the evidence was from the testimony that constituted the evidence, as well as the exhibits. If there were matter that were not put into evidence, then those matters you will just never hear.

'What I am trying to say is that I can't answer your questions. If there was testimony on these questions, then that is what you have. If there wasn't, then you don't--you won't have answers.

'Have I made myself clear?

'All right, thank you very much. Would you return to the juryroom, please?'

Defense counsel immediately raised objection to the court's additional instruction:

'Mr. Titta: I have an objection, Your Honor, that I would like to state for the record--not to the wording or phrasing that was used, but the fact that it didn't go farther. The fact that the jury should have been told that if they find there is evidence or missing evidence--missing portions of the case, that they can use that to conclude that there is a reasonable doubt, and I think the jury should have been told that, that the fact if they feel the evidence in this case is incompetent, that does raise a reasonable doubt as to the guilt of Mr. Solomon Wright to the offense committed.'

The trial court did not rule on this objection of defense counsel which we construe as a denial of the same.

The exhibits were given to the jury as requested. The second question--'is Solomon Wright right-handed or left-handed?' could not possibly be answered for the reason that defendant had elected not to take the stand in his own behalf. The answer to this question could only be supplied by the defendant and at no time did he offer to take the witness stand. As to the last question, the defendant now asserts for the first time that the court should have, on its own motion, reopened the proofs to permit the questions of the jury to be answered specifically. The defendant has not furnished this Court with any authority or precedent for such an unusual procedure. Defendant further alleges that 'had the testimony been reopened the prejudice to appellant might well have been eliminated.' To this allegation, we can only remark with the question--What prejudice 'might well have been eliminated'? Absent a request by defense counsel to reopen the proofs after the case had been submitted to the jury, we conclude that the trial court would have been standing on legal quicksand to have reopened the testimony. See 2 Gillespie, Michigan Criminal Law & Procedure (2d ed.), § 610, pp. 790--791, and People v. George, 375 Mich. 262, 134 N.W.2d 222 (1965).

The trial court properly instructed the jury in the main charge. The objection of defendant's attorney on the record did not call for a reiteration of that charge as to the burden of proof and the sufficiency of the evidence.

Subsequent to the court's additional instruction, the jury retired for a second time. After 28 minutes of further deliberation, the jury again submitted three more questions to the court: (1) Verify if exhibit No. 3 (photo of fingerprints) shows a right or left palmprint: (2) Is the print shown on exhibit No. 3 the top or the bottom of the meat turner; and (3) Could the reporter read back that portion of the testimony. The court returned the jury at 5:10 p.m. and responded to its request, thusly:

'Ladies and gentlemen, I can't answer factual questions for you. You must determine the true facts from the evidence which was presented to you during the course of the trial. And, in order to do that, you must search your own memories as to what evidence was produced at trial. I can ask the court reporter to read back clearly identified selections of testimony of any given witness if you request and identify it for us. If such a procedure is used, however, you should realize it takes quite a bit of time for the court reporter to find that testimony, and if it is any length, quite a bit of time to read it.

'I will request you to return to the juryroom, review whether you really need these questions answered. If you feel you do have to have them answered search your own memories for the answers. If you are then convinced that none of you--or to your satisfaction enough of you cannot remember what you feel is pertinent in these questions, then write me another note identifying precisely what witness's testimony you wish reread and we can do that.'

The jury returned to its deliberations at 5:15 p.m. and remained at the task until 5:50 p.m. when a verdict of guilty was returned to the court. The law is clear that judicial discretion is not abused where the jury is directed to deliberate further on questions posed by it to the court, so long as the possibility of having testimony read at a later time is not ruled out. Klein v. Wagenheim, 379 Mich. 558, 153 N.W.2d 663 (1967); Zaitzeff v. Raschke, 31 Mich.App. 87, 187 N.W.2d 564 (1971). The trial court followed this procedure in the instant case. Further, the attorney for the defendant stated 'defense has no objection to the statement and phrasing.' We find no error as to the first issue raised.

II.

Was it prejudicial error for the prosecution to show what defendant had said concerning an alibi when he was interrogated subsequent to his having been advised of his Miranda rights?

During the direct examination of Officer William Pettiford, the prosecution elicited details of the officer's initial interrogation of defendant September 14, 1970. Officer Pettiford testified in part as follows:

'On September the 14th, approximately 1:50 or 1:55 when I came into the--I was in the Detective Bureau after lunch. I was informed that a gentleman wanted to see me. It was Mr. Wright.

'I got the warrant. I got the Constitutional Rights Card, and I got the police report form. I took Mr. Wright into the Detective Bureau interrogation room. I asked Mr. Wright could he read and write, and he said yes. I gave him his Constitutional Rights Card and asked him if he would read it, and he did. After reading the card, I asked him did he understand his rights. He said that he did. I asked him would he sign the card showing that he had read the card and that he understood his rights, that he was not signing any confession. This he did. I showed Mr. Wright the warrant--the breaking and entering warrant. I also read the police report form to Mr. Wright, and Mr. Wright denied it.

'Q. (By Mr. Zerial, Assistant Prosecuting Attorney) This police report form was what? The investigating officer's report, is that it?

'A. That was Officer Gary Jager's report that he took at the scene.

'I read the police report to Mr. Wright and he denied it. I asked him where he was on August the 26th, 1970, at approximately 7:25 p.m. He said that he was at Buckley Field. I asked him what he was doing down at Buckley Field, and he told me that he umpired four innings, and then he kept score, and I asked him who that he was down at Buckley Field with, and he told me a lot of people. I asked him for names, but he did not give me any. That was the extent of the conversation.

'I then took Mr. Wright to District Court, where he was arraigned on the...