People v. Holly

341 N.W.2d 823, 129 Mich. App. 405
CourtMichigan Court of Appeals
DecidedOctober 10, 1983
DocketDocket 58429, 59282
StatusPublished
Cited by34 cases

This text of 341 N.W.2d 823 (People v. Holly) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Holly, 341 N.W.2d 823, 129 Mich. App. 405 (Mich. Ct. App. 1983).

Opinions

M. E. Dodge, J.

Following a joint jury trial, codefendants were each found guilty of armed robbery, MCL 750.529; MSA 28.797. Defendants appeal as of right.

Defendants first argue that the trial court incorrectly denied their motion for separate trials. Generally, a defendant does not have a right to a separate trial; joinder is usually within the discretion of the trial court. MCL 768.5; MSA 28.1028; People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). In fact, strong policy exists favoring joint trials and a defendant must make an affirmative showing that his substantial rights will be prejudiced before he is entitled to severance. People v Dunlap, 87 Mich App 528; 274 NW2d 62 (1978). Such a showing of [410]*410prejudice must be supported by an affidavit defining the inconsistencies between the defenses of the parties. People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), lv den 402 Mich 803 (1977).

Clearly in the present case, there were no affidavits supporting the severance motion which defined the inconsistencies between the respective defenses. However, the record establishes that not until the eve of trial did counsel even discover that the codefendants would testify, as neither had testified at the preliminary examination and all indications were that they would not testify at trial. Upon learning at this late date that each codefendant would testify to exculpate himself at the expense of inculpating the other, counsel for defendant Pearson submitted a motion for separate trials together with an affidavit containing a general averment of inconsistency.

While this Court adheres to the mandate in Smith which requires an affidavit defining the inconsistencies between the respective defenses, a strict application of that rule would result in a miscarriage of justice under the facts established on the record in this case.

In People v McGilmer, 96 Mich App 433, 439; 292 NW2d 700 (1980), the Court, citing Dunlap, supra, held "that severance was not required where an allegation of antagonistic defenses was not supported either by citing previous antagonistic statements made by the codefendant or by making an offer of proof on the point” (Emphasis added.) Considering the late date at which counsel received notice that a separate trial might be needed (due to the fact neither defendant had earlier testified or indicated a willingness to testify), the citing in an affidavit of previous antagonistic statements made by a codefendant would [411]*411have been a virtual impossibility. Therefore, the defendants should have been permitted the opportunity to make the offer of proof they requested.

A defendant is entitled to a trial separate and apart from a codefendant who it appears will testify to exculpate himself at the expense of incriminating the defendant seeking a separate trial. People v Hurst, supra; People v Webb, 82 Mich App 182; 266 NW2d 483 (1978), lv den 404 Mich 809 (1978).

Therefore, based on the above described circumstances, the trial court abused its discretion in refusing the proffered testimony on behalf of both defendants. However, while the trial court abused its discretion in refusing the proffered testimony, defendants’ convictions will not be disturbed on appeal in the absence of an affirmative showing that a joint trial did in fact prejudice the substantial rights of the defendants. People v Bedford, 78 Mich App 696; 260 NW2d 864 (1977).

Each defendant testified at trial on his own behalf as summarized below.

Kenneth Duane Holly testiñed:

On July 28, 1980, defendant Holly was on his front porch talking with defendant Pearson and one Patrick Williams. Pearson suggested getting some money so they went to Pearson’s house and got his car. Shortly after Pearson started to drive off, he pulled over and left the car for a few minutes, leaving Holly and Williams inside. When Pearson returned, he suggested a place they could rob and pulled out a gun and handed it to Williams, who in turn handed it to Holly, who placed it in his pants because he saw a police car. After deciding not to rob a 7-11 store at which they had stopped, they proceeded to a gas station where Pearson dropped off Holly and Williams. Pearson [412]*412then proceeded around the block and parked. When Pearson arrived he asked why they had not committed the robbery at the station and then told Williams to stay with the car while he and Holly went inside. Pearson told Holly that once inside, if everything was alright, he would nod his head and Holly would then pull the gun. After entering the station Pearson asked for a fuse and then twice said: "Pull the gun.” When Holly did not, Pearson pulled the gun from under Holly’s shirt and committed the robbery. Pearson then ordered the attendant outside. When the three got outside, Holly ran to the car and lay in the back seat with Williams. When Pearson got in the car he told them to stay down or he would shoot them. They drove back to Pearson’s father’s home where they divided the money. Holly put the money in a truck and then the police arrived.

Barry Bernard Pearson testiñed:

Around 4:00 p.m. on July 28, 1980, Pearson met with Holly and Williams and they gambled for a while in the park. Holly wanted to borrow Pearson’s car to go to the hospital and snatch a purse because it was nurses’ payday. Pearson loaned his car to Williams for an hour and Williams and Holly left together in the car. Pearson went to his father’s home since he had told Williams to return the car to that location. When Holly and Williams returned, they gave Pearson $13 and his car keys. Shortly thereafter, someone kicked the door and Williams ran upstairs and said, "There is the police.” Williams threw a .32-caliber gun into the room into which Holly had shut himself. Pearson denied driving to the gas station or being involved in the robbery.

A reading of each defendant’s testimony reveals that the joint trial did prejudice the substantial [413]*413rights of defendant Pearson. Defendant Pearson’s defense was based on total noninvolvement in the armed robbery; he claimed he merely loaned his car to Williams and Holly with instructions to return it to his father’s home at a later time. Holly’s testimony, however, explicitly pointed the finger at Pearson. While Holly did not deny carrying the gun into the station with a knowledge that a robbery was contemplated, he claimed Pearson was the organizer and sole perpetrator of the crime in question, a defense clearly contrary and antagonistic to Pearson’s defense.

A trial should not be a contest between the defendants in which the prosecution stands by and watches the defendants accuse each other. It is the prosecution which carries the burden of proof and this burden should not be taken lightly. People v Millard, 53 Mich 63; 18 NW 562 (1884). See, also, Coffin v United States, 156 US 432; 15 S Ct 394; 39 L Ed 481 (1895). While there was ample other testimony implicating defendant Pearson at trial, one of the station attendants, Stewart Brower, was unable to identify the defendants. The other attendant, Larry Reed, while identifying the defendants at trial, was initially unable to pick them out in police pictures.

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Bluebook (online)
341 N.W.2d 823, 129 Mich. App. 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-holly-michctapp-1983.