People v. Miller

276 N.W.2d 558, 88 Mich. App. 210, 1979 Mich. App. LEXIS 1963

• Court: Michigan Court of Appeals
• Decided: January 17, 1979
• Docket: Docket 77-824, 77-825, 77-939, 77-945
• Status: Published

Opinions

Per Curiam.

Defendants Miller, Davis and Ewing were each charged with one count of felony murder, MCL 750.316; MSA 28.548, and three counts of armed robbery, MCL 740.529; MSA 28.797. The three defendants were represented, by-separate counsel, but were tried jointly. A recorder’s court jury found defendants Miller and Davis guilty as charged, and found defendant Ewing* guilty of second-degree murder, MCL 750.317; MSA 28.549, and one count of armed robbery. All defendants received life sentences on each count on which they were convicted. All three defendants appeal and these appeals have been consolidated.

The charges stem from an armed robbery of the Pixie Restaurant in Detroit on August 11, 1976. Testimony and evidence at trial indicated that defendants Miller and Davis entered the restaurant and robbed at gunpoint William Beneson, Robert Tompkins, and Edward Cornwall. As Miller and Davis were leaving, Miller fired a shot which killed Beneson. Defendant Ewing provided Miller with the weapon and waited in a car outside the restaurant. The car was driven by David Lyles, a friend of the defendants, who was paid $3 by Miller to drive defendants to the restaurant and wait for them. After dropping them off, Lyles drove off with Ewing without waiting for Miller and Davis. Lyles was at one point arrested, but he was never charged with the crime.

Tompkins testified that Davis was one of the robbers, but was not sure if Miller was the other. Cornwall identified both Miller and Davis as the robbers. Pierr Harris, who knew both Miller and Davis, testified that she was near the Pixie Restaurant at the time of the crime, heard a shot, and saw Miller and Davis running from the restaurant. Lyles testified that after the robbery Miller had said that he killed Beneson. Confessions made by each defendant were admitted at trial, but none of the defendants testified. Miller called two witnesses in defense who contradicted the testimony of Harris. Other than that, the defense consisted of attacking prosecution witnesses.

On appeal defendants raise a plethora of issues, three of which merit special attention. The remaining may be disposed of summarily. When necessary, additional facts will be developed.

Struck Jury

Each defendant claims due process was violated and reversible error was committed because the trial judge selected the jury by what we shall call the "struck jury” method. Seventy-three members of the jury panel were identified and selected as prospective jurors. All defense counsel were given an opportunity to examine the juror sheets on the morning of the jury selection. None took advantage of the opportunity. Nor did any of the defense counsel submit questions for voir dire. The trial court itself questioned the jurors collectively and, at times, individually. After the court’s voir dire, defense attorneys and the prosecutor were permitted to exercise their challenges on a rotating basis. The panel was reduced to 11 persons at which time 38 additional prospective jurors were seated and questioned. The procedure was repeated until 14 jurors remained. No juror was excused for cause. Miller and Davis each exhausted their 20 peremptory challenges and Ewing used 19 of his.¹

Defendants contend that this procedure violated GCR 1963, 511.6 and infringed upon the exercise of their peremptory challenges. The only specific claim of prejudice made by any of the defendants is that they could not keep track of the responses of the individual panel members. On the facts of this case we do not find reversible error.

We cannot accept the contention that defense counsel could not keep track of the responses of the prospective jurors. The struck jury method has been used and continues to be used in other jurisdictions and the attorneys there handle the situation. Nor do we find .that the technical violation of GCR 1963, 511.6 mandates reversal. GCR 1963, 511, which provides for the impaneling of jurors, was designed with the usual method of starting with a panel of 12 prospective jurors in mind. Therefore § 6 of the rule becomes important in order to insure that the effect of subsequent challenges will not be diluted by exercising them on a diminishing panel, and then having the members replaced with persons even less desirable. Under the instant method this problem never arises because counsel know from the start and can decide even before their first challenge all of the individuals they wish to challenge. Hence, the purpose behind GCR 1963, 511.6 was achieved here. With the exception of § 6, the struck jury method used here was in compliance with all of the other requirements of GCR 1963, 511.

The evidence against defendants was overwhelming. In this case we do not find a miscarriage of justice and reversal is unwarranted. MCL 769.26; MSA 28.1096. In addition, defense counsel were informed by the trial court a month before trial that the struck jury method would be used and no objection was made until the first day of selecting the jury. Although the use of the struck jury method did not warrant reversal in this case, our opinion should not be read as an endorsement of the method. Our Supreme Court has provided for a method of impaneling a jury, and the surest way of avoiding error, particularly in the sensitive area of a defendant’s right to a jury trial, is to follow the accepted method.

Confessions

Defendant Miller gave a false confession which exculpated him but inculpated both defendant Davis and defendant Ewing. Davis and Ewing were quickly arrested and they each confessed, but they incriminated defendant Miller. In the face of the contradiction between his statement and those of Davis and Ewing, Miller gave another confession which incriminated himself as well as Davis and Ewing. Except for Miller’s first confession, all of the confessions described the same crime and events. There is no question that all defendants received full Miranda rights before any statements were given, and Miller received his rights twice, once before each of his confessions. All four of the confessions were introduced at trial.

On appeal it is contended that Miller’s initial confession was given following an arrest made without probable cause. The police investigation of the crime continued over a month before defendant Miller was arrested. During this time many people were questioned about the crime and the name "Pops” came up several times in relation to the crime. Descriptions (but no names) of the robbers were obtained from Pierr Harris. Eventually the police learned that defendant Miller was known as "Pops” and they went to his home to question him. When the police met Miller they realized he matched very closely the description given by Harris. At that point Miller went with them to the police station where he made his first statement.

Whether or not Miller was actually arrested before he made his first statement, the police would have had sufficient probable cause to arrest him. The information available to the police while at Miller’s home gave them "reasonable cause to believe” that defendant committed the crime. MCL 764.15(d); MSA 28.874(d). People v Green, 70 Mich App 311; 245 NW2d 730 (1976), lv den, 399 Mich 855 (1977). Consequently, Miller’s first statement was not taken in violation of his rights, and the subsequent statements of Davis and Ewing were not fruits of a poisonous tree. Miller’s second statement was also validly taken and admissible. In passing we also note that defendants Davis and Ewing could not have relied on any impropriety in procuring defendant Miller’s confession, because the impropriety involved infringement of a Fourth Amendment right and cannot be asserted vicariously. Brown v United States, 411 US 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973), United States ex rel Wright v Cuyler, 563 F2d 627 (CA 3, 1977).²

Each defendant objected to the admission of his two codefendants’ confessions because the confessions were, allegedly, prejudicial and violated their Sixth Amendment right to confront and cross-examine witnesses contrary to the rule of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). In the instant case, however, the confessions of each defendant had the names of any other defendant excised and replaced with John Doe #1, #2, or #3 as needed. Additionally, instructions were given that the confessions were to be used only in relation to the particular confessing defendant. In a multiple-defendant trial, confessions may be admitted where "any reference to one of the other codefendants is deleted” without violating Bruton. People v Macklin, 46 Mich App 297, 302; 208 NW2d 62 (1973).

The deletion of codefendants’ names would usually be sufficient to avoid Sixth Amendment problems, but in this case all of the confessions gave a similar story, and defendants claim the net effect of reading all three confessions was to indicate that the deleted names were the names of the codefendants. We do not reach defendants’ contention because each defendant admitted in his own confession the prejudicial information contained in the confessions of his codefendants. Where the various confessions are interlocking or substantially similar, the "powerfully incriminating extrajudicial statements of a codefendant” (391 US at 135) are not present as in Bruton, and hence it is harmless error at most to admit such statements. Mack v Maggio, 538 F2d 1129 (CA 5, 1976), United States ex rel Duff v Zelker, 452 F2d 1009 (CA 2, 1971), cert den, 406 US 932; 92 S Ct 1807; 32 L Ed 2d 134 (1972), Walden v Neil, 318 F Supp 968 (ED Tenn, 1970), aff'd, 451 F2d 1350 (CA 6, 1971).

Another issue relating to the confessions is raised by defendants Davis and Ewing. They each claim error in the admission of defendant Miller’s initial statement which incriminated them and exculpated Miller. Neither defendant cites any authority for his position. False statements may be admissible, People v Dandron, 70 Mich App 439; 245 NW2d 782 (1976), so the question becomes whether the admission of the statement violated Bruton. For the same reasons that the admission of Miller’s second statement did not prejudice Davis and Ewing, his first statement did not prejudice them.

Separate Trials

Where two or more defendants are jointly charged with an offense, they may be tried jointly or separately in the discretion of the court. MCL 768.5; MSA 28.1028. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). The trial court’s decision will be upheld absent an abuse of discretion, People v Billingslea, 70 Mich App 371; 246 NW2d 4 (1976), which requires an affirmative showing of prejudice to substantial rights of the accused. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). A defendant is entitled to a separate trial where defenses are antagonistic; that is, where it appears a codefendant may testify to exculpate himself and incriminate the defendant. People v Hurst, supra.

As mentioned earlier, each defendant’s confession or statement inculpated the codefendants. But each statement also inculpated the defendant making the statement.³ Therefore, the confessions did not incriminate codefendants and exculpate the confessing defendant. The result was that the statements did not represent antagonistic positions. At trial, Ewing’s defense amounted to one of noninvolvement, but his own statement prejudiced him as much as that of either defendant Miller or Davis. Defendants Miller and Davis challenged the accuracy of the observations of the prosecution witnesses and challenged the voluntariness of their confessions. None of these positions were antagonistic to one another. The pitting of defendants against each other, the animus of Hurst, was not present here.

Remaining Issues

Defendants Davis and Ewing raise several other issues, none of which warrant reversal.

Contrary to the argument of defendants, neither MCL 712A.23; MSA 27.3178(598.23), nor People v Renno, 392 Mich 45; 219 NW2d 422 (1974), precluded the prosecutor’s questions relative to prior convictions of a defense witness. Impeachment is not restricted to convictions for felonies, but may include misdemeanors punishable by more than 90 days in jail. People v McMillan, 68 Mich App 113; 242 NW2d 518 (1976), lv den, 399 Mich 825 (1977). MCL 712A.23; MSA 27.3178(598.23), does not preclude use of a juvenile record to impeach a witness who is not the defendant. People v Davies, 34 Mich App 19; 190 NW2d 694 (1971).

Defendants contend that remarks in closing by the prosecutor resulted in prejudicial error. The very brief remarks complained of might have raised the jurors’ sympathies, but the remarks were in response to defense remarks, and no error resulted. People v Newby, 82 Mich App 489; 266 NW2d 492 (1978), People v Pomranky, 62 Mich App 304; 233 NW2d 263 (1975).

Since, even if true, two jurors’ comments overheard by Ewing’s mother were made after the close of evidence, there is no ground for reversal. People v Provost, 77 Mich App 667; 259 NW2d 183 (1977).

No error occurred when defendant Davis objected to the instruction on the effect of a defendant not testifying at trial. The instruction was requested by defendants Miller and Ewing. People v Hampton, 394 Mich 437; 231 NW2d 654 (1975). Although not precisely on point, the Supreme Court’s decision in Lakeside v Oregon, 435 US 333; 98 S Ct 1091; 55 L Ed 2d 319 (1978), further supports our rejection of defendant’s contention.

Defendant Ewing, individually, raises four additional issues. There was ample record evidence that Ewing had the requisite intent. The police complaint report met the tests of and was admissible under the business records exception to the hearsay rule. MCL 600.2146; MSA 27A.2146. The factual issue of whether Ewing furnished the gun was clearly left to the jury. No prejudice resulted from the court’s emphasis on the charge of aiding and abetting. Ewing was the only defendant charged as an aider and abettor and the instructions given followed CJI 8:1:02 through 8:1:05 practically verbatim.

Affirmed.

1 The method described above is not the only jury selection method termed the "struck jury” method. A perhaps more traditional procedure entailed actually striking the names of jurors from a jury list until only 24 remained and then proceeding normally as to the remaining 24. This method was authorized in Michigan by statute until 1963. MCL 618.45; MSA 27.1025. Repealed by MCL 600.9901; MSA 27A.9901. 1961 PA 236.

A method similar to that used here was approved by the Supreme Court in Pointer v United States, 151 US 396; 14 S Ct 410; 38 L Ed 208 (1894). Similar methods continue to be used in Federal courts. Swain v Alabama, 380 US 202; 85 S Ct 824; 13 L Ed 2d 759 (1965), United States v Mathis, 550 F2d 180 (CA 4, 1976). Some states also use the procedure. 50 CJS, Juries, § 5. Generally, there appears to be statutory authorization where the method is used.

2 One of the arguments made by defendants is that defendant Miller’s arrest was the result of information received from unspecified informants, i.e., the people the police talked with during their investigation. These individuals were not "informants”. They were people who admittedly heard rumors and had no unusual or special relationship with any of the defendants. Cf. People v Emmert, 76 Mich App 26; 255 NW2d 757 (1977), and discussion in People v Tooks, 403 Mich 568; 271 NW2d 503 (1978).

3 Defendant Miller in his second confession stated that his gun discharged accidentally. Defendant Davis confessed to participating in the crime, but said he was running out the door when Miller’s gun discharged. Defendant Ewing admitted giving the gun to Miller and being in the car that took Miller and Davis to the restaurant.