People v. Howard , 78 Mich. App. 592 ( 1977 )

78 Mich. App. 592 (1977) 261 N.W.2d 15

PEOPLE
v.
HOWARD

Docket No. 31212.

Michigan Court of Appeals.

Decided September 21, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney, for the people.

Kelly & Hall, for defendant on appeal.

Before: DANHOF, C.J., and T.M. BURNS and A.E. KEYES,^[*] JJ.

DANHOF, C.J.

On July 16, 1976, defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit a larceny therein, in violation of MCLA 750.110; MSA 28.305. Defendant was tried jointly with one codefendant who was also convicted. Defendant was sentenced to a term of 4 to 15 years in prison on August 30, 1976. Subsequently defendant moved for a new trial based on newly discovered evidence. This motion was heard on November 1, 1976, and denied in an order dated November 22, 1976. Defendant appeals as of right.

At trial the main prosecution witness was a third coparticipant in the alleged crime who had been granted immunity prior to testifying against the two codefendants. According to this witness the alleged breaking and entering occurred during the late night hours of March 30 and/or the early morning hours of March 31, 1976. Defendant Howard testified in his own defense and denied participation in the crime. The other codefendant did not testify.

On appeal defendant raises five issues. First, defendant asserts that the trial court should have granted him a new trial based on newly discovered evidence consisting of an affidavit signed by his codefendant which reads as follows:

Michigan State Prison Parole Camp Jackson, Mich. September 18, 1976

"My name is Kevin Edmund Lott. I swear under the pains and penalties of perjury that the following is true to the best of my knowledge. Michael Howard is innocent of any involvement in the events of March 30 and 31, 1976 for which he was convicted. He was not at the scene of the crime and I did not even see him at any time on the 30th or 31st of March 1976. As far as I know Michael Howard knew nothing about the break-in or the taking of the articles. His name was not even mentioned by me or by Rae Jean Shack. I have absolutely no knowledge of Michael Howard taking anything from the house that was broken into.

"I have read the above statement and it is true."

(signed) Kevin E. Lott

"Subscribed and sworn to me on this 18th day of September, 1976,"

(Signed) Ferd R. Hall, Notary Public

People v Clark, 363 Mich. 643, 647; 110 NW2d 638 (1961), sets up a four-part test for granting a new trial based on new evidence:

"Our Court has on numerous occasions held that to entitle one to a new trial on the ground of newly-discovered evidence, it must be shown that the evidence itself, not merely its materiality, was newly-discovered; that it is not cumulative; that it is such as to render a different result probable on a retrial of the cause; and that the party could not with reasonable diligence have discovered and produced it at the trial."

At the hearing on defendant's motion for a new trial the trial court stated:

"THE COURT: Then in essence you are alleging that the only evidence was that of a coconspirator?

"MR. HALL: That is correct.

"THE COURT: The jury apparently believed the coconspirator.

"MR. HALL: That is correct.

"THE COURT: Your motion is therefore denied."

The affidavit offered as new evidence asserts that the defendant is innocent of any involvement and was not at the scene of the crime. The affiant, however, does not admit his own participation in the crime nor his presence at the scene and fails to identify those who did participate. The original signed statement was apparently handwritten and notarized by the defendant's present appellate counsel. We take this statement at face value. While it purports to exculpate the defendant, it does not set out the basis for affiant's knowledge of the events referred to.

In People v McAllister, 16 Mich. App. 217; 167 NW2d 600 (1969), the affiant stated that he and another identified person had committed the crime and that the defendant in that case had not participated. The opinion does not indicate that the affiant had previously been prosecuted for the crime. Unlike McAllister, here the affiant does not admit his participation, does not name all the other participants and does not expose himself to further criminal prosecution by his statement.

In People v Cummings, 42 Mich. App. 108; 201 NW2d 358 (1972), this Court reversed the trial court's denial of a motion for new trial based on new evidence. The new evidence was an affidavit and deposition, stating in part that the declarant had participated in the crime, had not been prosecuted in return for agreeing to enlist in the United States Navy, that he had advised the police prior to defendant's trial that defendant was innocent, and that defendant had not participated in the crime in any way. In Cummings, unlike the instant case, the affiant admitted his own participation in the crime, had not himself been prosecuted for the crime, and revealed information which if true showed that the prosecution had improperly suppressed evidence at the original trial.

In People v Terry Burton, 74 Mich. App. 215; 253 NW2d 710 (1977), a new trial was ordered based upon (1) a sworn statement by a convicted coparticipant who had been tried separately, stating that he had participated in the crime and exonerating the defendant Burton from any part; and (2) the testimony of the defendant's two sisters who admitted their own participation in the crime and who gave sworn testimony that their brother had not participated. These two sisters had not been previously prosecuted and as the Burton opinion pointed out, the sisters' testimony subjected them to possible prosecution.

In all three of the above cases the new trial appears to have been ordered based at least in part upon statements which not only clearly exculpated the defendant, but clearly inculpated the declarant who was previously uncharged with a crime. In the instant case, the declarant has already been convicted and has nothing to lose by his statement. We view such affidavits with skepticism. However, the trial court did not find the affiant lacking in credibility. We therefore likewise take the affidavit at its face value, but decline to read anything more into it.

The granting of a new trial on the ground of new evidence is discretionary with the trial court. In People v Bersine, 48 Mich. App. 295, 298; 210 NW2d 501 (1973), this Court stated:

"The granting of a motion for a new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown. People v Dailey, 6 Mich. App. 99; 148 NW2d 209 (1967); People v Keiswetter, 7 Mich. App. 334; 151 NW2d 829 (1967); People v Harris, 31 Mich. App. 100; 187 NW2d 502 (1971). The standard to be used in determining whether the trial court abused its discretion was stated by this Court in People v Harris, supra, as follows:

"``Appellate relief from a denial of a motion for a new trial on basis of newly discovered evidence is granted if it is demonstrated that the trial court abused its discretion in such denial. "Abuse" in such a case would be evidenced by a result that is palpably and grossly violative of fact and logic, such that it evidences "not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias." People v Wolschon, 2 Mich. App. 186, 188; 139 NW2d 123, 124 (1966).'"

As we read the record, the trial court rejected the motion for a new trial because it believed that the jury had convicted the defendant on the basis of Rae Jean Shack's testimony and the same result would be likely on a retrial. We agree that without more, the information in the proffered affidavit does not render a different result probable on a retrial. Assuming that the affiant testified to the same effect at a new trial, that testimony would not clearly exculpate the defendant since there is no admission by the affiant that he participated in the crime and was present at the crime scene. Therefore, we find that the trial court did not abuse its discretion in denying a new trial.

Defendant has not requested that this case be remanded for another evidentiary hearing on his motion for new trial. Since the denial of a new trial was not based upon a finding that the affiant lacked credibility we also see no need for a further evidentiary hearing such as was ordered in People v Mosden, 381 Mich. 506; 164 NW2d 26 (1969), and People v Semchena, 7 Mich. App. 302; 151 NW2d 895 (1967). In both of those cases, unlike the instant case, the information contained in the affidavit if true would clearly have exculpated the defendant.

Defendant also argues that a new trial should be granted because of the introduction without objection of evidence of other crimes committed by the defendant. Much of this evidence pertained to the res gestae of the charged offense and was therefore properly admissible. People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975). Some of the questions about marijuana smoking may have gone beyond the res gestae of the charged offense. Absent objection at trial we will reverse only if necessary to prevent a miscarriage of justice. People v Redfern, 71 Mich. App. 452, 454; 248 NW2d 582 (1976). The defendant has failed to show that the unobjected-to questions and answers deprived him of a fair trial. We therefore find no reversible error.

After a review of the briefs of the parties and the record we find that the defendant's other allegations of error do not merit reversal.

Affirmed.

A.E. KEYES, J., concurred.

T.M. BURNS, J. (dissenting).

I cannot agree with the majority's interpretation of the affidavit filed in support of defendant's motion for new trial. Although it may be ambiguous, one reasonable interpretation of the affidavit is a confession by Lott, a former codefendant, which exonerates defendant. The circuit court could have required Lott to testify to resolve any ambiguity in the affidavit as presented. Anything less deprives defendant of the "full and fair hearing" to which this claim is entitled. People v Mosden, 381 Mich. 506; 164 NW2d 26 (1969).^[1]

If, at the hearing, Lott admits his participation and exonerates defendant, defendant would be entitled to a new trial.^[2] Because he was jointly tried with defendant, Lott could not be forced to waive his Fifth Amendment privilege against self-incrimination^[3] at trial. This testimony would be newly discovered and could not have been produced with reasonable diligence at trial. People v Terry Burton, 74 Mich. App. 215, 224; 253 NW2d 710 (1977).

Defendant testified that he played no part in the breaking and entering. Several witnesses supported his version of his whereabouts on that night. But defendant produced no testimony showing what occurred during the breaking and entering and who was responsible except through cross-examination of the main prosecution witness, an admitted participant testifying under a grant of immunity. Lott's testimony would contradict this testimony, not be merely cumulative of it.

Lott's testimony would also render a different result probable on a retrial. The people's case was based on the testimony of an admitted participant, given under a grant of immunity and contradicting several statements made earlier by this witness to the police. This Court has not hesitated to grant a motion for new trial under similar circumstances. People v McAllister, 16 Mich. App. 217; 167 NW2d 600 (1969), People v Cummings, 42 Mich. App. 108; 201 NW2d 358 (1972), People v Terry Burton, supra.

The people contend that the affidavit did no more than attack the credibility of the admitted participant and will therefore not support the grant of a new trial. As a general rule, new evidence which merely impeaches testimony given at trial will not support a motion for a new trial. People v Serra, 301 Mich. 124, 133; 3 NW2d 35 (1942). But, Lott's testimony would do more than impeach that version of the events. It cannot be seriously contended that Lott's testimony would not be substantive evidence to be considered by the jury in determining what occurred and who was responsible. Just because his testimony contradicts the other participant's trial testimony does not make it "merely impeachment" evidence. Even though one effect of Lott's testimony would be to impeach the people's witness it would still be substantive evidence of defendant's innocence. See, McCormick, Evidence (2d ed), § 47, p 99.

I would remand for a full and fair hearing on defendant's motion for new trial.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] No witnesses were called during the "hearing" below. The circuit court denied the motion because the jury had believed the other participant's version of the events given during trial.

[2] I agree that defendant's claim must be measured against the standards set forth in People v Clark, 363 Mich. 643; 110 NW2d 638 (1961).

[3] US Const, Am V.