People v. Payne

163 N.W.2d 650, 13 Mich. App. 116, 1968 Mich. App. LEXIS 1018

• Court: Michigan Court of Appeals
• Decided: August 29, 1968
• Docket: Docket No. 3,080
• Status: Published

Opinion

J. H. Gillis, J.

Defendant Lonnie Payne was convicted by a jury of armed robbery.¹ It was alleged that on March 4, 1966 appellant entered the Madison Food Store and asked Leroy Height, an employee, to get him a beer. Height went to the rear of the store and obtained a beer from the cooler. As he returned to the front of the store with the defendant following, they approached Chatfield Young, the store manager, who was facing the opposite direction. The defendant grabbed a revolver sticking out of Mr. Young’s pocket, who then turned around and observed the defendant now holding a gun in each hand. The robbery followed. Both Height and Young in their testimony identified defendant as the perpetrator. Additionally, Mr. Young testified that defendant was an old customer to whom he had once loaned $3. The defense was based on an alibi supported by the testimony of 2 girls.

On appeal defendant presents the following issues for our consideration: (1) was the verdict of the jury supported by sufficient evidence to sustain a conviction of armed robbery beyond a reasonable doubt? (2) did the trial court err in denying defendant’s motion for a new trial based on an allegation that one of the jurors, during a noon recess, talked with a law enforcement officer who, defendant believes, might have been connected with the case? (3) did the court err in failing to grant a new trial on the basis of newly discovered evidence? (4) did the court err in permitting the prosecution to ask certain questions of the alibi witnesses?

A review of the record in the instant case establishes that there was sufficient evidence to sustain a conviction of armed robbery beyond a reasonable doubt if the trier of the facts believed the testimony of the witnesses presented by the people.

In answer to the second issue, the proscuting attorney filed an affidavit.² The record fails to show that the defendant was prejudiced by this conduct on tbe part of the juror.

On the third issue presented for our review, the affidavits presented in support of the defendant’s contention that he was not present when the robbery (took place contradict the alibi witnesses presented iby the defendant at trial. It does not appear from 'this record that, had these witnesses testified, a different verdict would have been rendered.

The record demonstrates that the defendant’s conviction was supported by the direct testimony of eyewitnesses who had ample time to observe the defendant while he was in the process of committing the offense charged.

The final issue raised by the defendant pertains to the propriety of the cross-examination of the defense witnesses. The pertinent testimony to which the defendant takes exception consisted of the following :

“Q. [By Mr. Kalliel {prosecuting attorney)] : Would you consider yourself a friend of Lonnie Payne?

“A. Yes.

“Q. And are you a friend of Marie Ingram?

“A. Yes.

“Q. How does it happen Lonnie lives at your home —lived at your home ?

“Mr. Jaross [defense counsel]: I object to that. He lives there.

“Mr. Kalliel: Why?

“Mr. Jarosz: How does it happen?

“The Court: Objection overruled. She may answer.

“A. Marie and Lonnie were going together.

* # *

“Q. And discussed the events of what happened that night?

“A. Yes.

“Q. You and she have compared what happened that night, haven’t you?

“A. Yes, we have.

“Q. And one of you would say one thing and the other said, ‘No, that isn’t true,’ isn’t that right?

“A. Yes.

“Q. And then you’d say, ‘Oh, I guess it is true,’ wouldn’t you?

“A. If — I mean—

“Q. Is that right?

“A. Yes. <

< “Mr. Jarosz: I object to this, your Honor, trying to establish what she’d say. I let him go on a little bit. He is begging the answers now.

“The Court: This is cross-examination. You may continue.”

We agree with the trial judge in his view that this was proper cross-examination.

We find no reversible error in the issues presented for our review. Affirmed.

Fitzgerald, P. J., and Bowles, J., concurred.

1 CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797).

2 “I, A. Raymond Kalliel, being first duly sworn, deposes and says that I was the Assistant Prosecuting Attorney, who prosecuted the ease of The People of the State of Michigan vs. Lonnie Payne, for armed robbery.

“During the lunch recess on one of the days of the trial, I walked into the courtroom and observed one of the jurors sitting at the far end of the courtroom in the spectators’ seats near an open ■window reading a newspaper. Outside in the hallway wore some persons and the counsel for the defendant, Alexander S. Jarosz, After observing the juror, I -walked out of the courtroom and notified Mr. Jarosz that the juror was seated in the courtroom and asked him if I should ask the juror to return to the jury room. Mr. Jarosz indicated in the affirmative and I then asked the juror if he would return to the jury room which lie did, explaining that he was merely seated near the window during the lunch hour to take advantage of the fresh air and the breeze. To my knowledge, the juror was not engaged in any conversation with anyone nor did he overhear any conversation that might have been taking place. At the time, Mr. Jarosz did not place any importance on the fact that this juror was In the courtroom.

/s/ A. Raymond Kalliel

“A. Raymond Kalliel

“Assistant Prosecuting Attorney”