People v. Johnson

303 N.W.2d 908, 103 Mich. App. 825, 1981 Mich. App. LEXIS 2757
CourtMichigan Court of Appeals
DecidedFebruary 18, 1981
DocketDocket 48010
StatusPublished
Cited by10 cases

This text of 303 N.W.2d 908 (People v. Johnson) 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. Johnson, 303 N.W.2d 908, 103 Mich. App. 825, 1981 Mich. App. LEXIS 2757 (Mich. Ct. App. 1981).

Opinions

Per Curiam.

The defendant, his brother Jerome Johnson, and a person named Leon, who was neither found nor arrested, were all named as coconspirators in this matter. The defendant and Jerome were tried together but Jerome pled guilty before his case went to the jury. This appeal by right follows defendant’s conviction.

Michael Pierrie, a drug-addict informant, and Daniel Michael Averill, an undercover state police trooper, testified that the defendant parked his car behind theirs on a street in the City of Saginaw. Pierrie went to the defendant’s car to arrange a heroin deal while Averill remained in his car. Trooper Averill had told Pierrie that he only had $480 with which to purchase heroin. Pierrie testified that the defendant offered to deliver a "short quarter” or "7-1/2 spoons” for $480. Pierrie gave the defendant, the money. Trooper Averill did not hear any of the conversation between Pierrie and the defendant. Later, at Pierrie’s apartment, Jerome Johnson and Leon arrived and said they had their (Averill and Pierrie’s) dope. Leon produced the heroin, gave it to Jerome, who, without being asked to, measured out 7-1/2 spoons of heroin. Trooper Averill took the foil packet the heroin was placed in. Trooper Averill testified that 7-1/2 spoons was an uncommon quantity. Averill also testified that after he had taken the packet of heroin, Jerome told him, "I told you to go through me, not Mac”.

Although the prosecution has a duty to endorse on the information and call all res gestae witnesses, it is not obligated to endorse or produce [829]*829accomplices. People v Threlkeld, 47 Mich App 691; 209 NW2d 852 (1973), People v Szymanski, 52 Mich App 605; 218 NW2d 95 (1974). The prosecutor was not obligated to endorse or call the missing codefendant, Leon. There was no showing of prosecutorial impropriety or bad faith in the state’s inability to find or arrest Leon and, thus, no denial of fundamental fairness to defendant.

The defendant also contends that the trial court should have granted his motion for a mistrial when, after the jury was sworn, three members of the 14-member panel realized that they had sat on previous juries which had heard informant-witness Pierrie testify in drug prosecutions. Defense counsel moved for a mistrial based on the fact that they still had two peremptory challenges left (between the two defendants) and would have used those challenges had they known these jurors had heard Pierrie testify before. The trial court denied this motion. Two of the jurors asked to be excused, the third stated that, although he had been on a jury that had heard Pierrie testify, he had not taken part in the deliberations and he could give "a fair and impartial verdict in this case”.

It is important for trial courts to safeguard a defendant’s right to a fair trial before an impartial jury. Declaration of a mistrial may be appropriate where a trial judge discovers that one or more jurors might be biased. People v Gardner, 37 Mich App 520, 527; 195 NW2d 62 (1972), lv den 387 Mich 771 (1972). The court may grant a challenge of a juror for cause if the court determines a person is biased for or against a party or attorney or if "the person shows a state of mind which will prevent him from rendering a just verdict, or has formed a positive opinion on the facts of the case or as to what the outcome should be”. GCR 1963, [830]*830511.4(3)(4). "Lack of actual bias or prejudice of a challenged juror is a matter for the trial judge’s determination. The challenging party is obliged to make a showing of such claimed bias or prejudice. The trial judge is then properly permitted to conduct a voir dire or interrogate the juror and make a finding of bias or lack of same and is entitled to broad discretion in his examination.” Rice v Winkelman Brothers, Inc, 13 Mich App 281, 287; 164 NW2d 417 (1968), lv den 381 Mich 798 (1969). (Citations omitted.)

In the instant case, the juror who remained on the jury was questioned as to his ability to render an impartial verdict. The trial court’s determination of a juror’s ability to render an impartial verdict is reversed only where an appellate court finds a clear abuse of discretion. Rice v Winkelman, supra, People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978).

The challenged juror here satisfied the trial court as to his impartiality. The trial judge is better able to judge demeanor and credibility when a juror asserts that he could render an impartial verdict. Even though this juror was ultimately chosen by his fellow jurors to act as foreman, we do not find a clear abuse of discretion for the trial court to retain this juror after questioning the juror on the matter. The court determined that the fact that this juror had sat on a panel that had heard the informant testify in other drug offense cases did not necessarily indicate that the juror must have been biased when he did not participate in the earlier jury’s deliberations. The juror maintained that he was not prejudiced by his having previously heard the informant-witness. We are persuaded that the trial judge acted correctly in not declaring a mistrial in [831]*831light of People v Wyskochil, 76 Mich App 468, 471; 257 NW2d 126 (1977), which held that "[t]o adopt a rule that would per se exclude a police officer or other witness from testifying before the same panel a second time would unduly constrain the judicial process”.

This Court in People v Graham, 84 Mich App 663; 270 NW2d 673 (1978), held that a new trial was necessary where a juror recognized a witness only after the witness took the stand and the juror stated he was prejudiced in favor of one party to the case because of his acquaintance with the witness. The Graham Court said:

"[T]o mandate a new trial more than the discovery of an error by way of the nondisclosure of facts is necessary. The party moving for a new trial must present proof of actual prejudice or must establish to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial.” Graham, supra, 668.

This Court in Citizens Commercial & Savings Bank v Engberg, 15 Mich App 438, 441; 166 NW2d 661 (1968), held:

"Absent a showing of actual prejudice or proof that a challenge for cause would properly have been successful, or proof of circumstances that would indicate the moving party would have been more likely than not to have excused the juror on a peremptory challenge, it cannot be said that the trial court abused its discretion in refusing to grant a new trial.”

There was no deliberate attempt by the jurors in the case sub judice to conceal their prior service on juries which had heard drug cases. (Pierrie’s [832]*832name may have been mispronounced when the list of witnesses was read to the prospective jurors.)

The defense counsels did not challenge peremptorily or for cause any of the jurors who sat on previous drug cases. They did not indicate any belief that the jurors would not render an impartial verdict. After a review of the whole record, we find no abuse of discretion in the trial court’s denial of a mistrial in the case.

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Related

People v. Daoust
577 N.W.2d 179 (Michigan Court of Appeals, 1998)
People v. Anderson
421 N.W.2d 200 (Michigan Court of Appeals, 1988)
People v. Johnson
418 N.W.2d 117 (Michigan Court of Appeals, 1987)
People v. Roupe
389 N.W.2d 449 (Michigan Court of Appeals, 1986)
People v. Ayoub
387 N.W.2d 848 (Michigan Court of Appeals, 1985)

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Bluebook (online)
303 N.W.2d 908, 103 Mich. App. 825, 1981 Mich. App. LEXIS 2757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-michctapp-1981.