People v. Woodfork , 47 Mich. App. 631 ( 1973 )

J. H. Gillis, J.

Defendants, George Woodfork and Calvin Langston, were convicted in a joint jury trial of first-degree murder and armed robbery.¹ They appeal raising separate issues.

At about 2 p.m. on December 31, 1969, two men entered a grocery in Flint, Michigan. One man produced a rifle, customers were ordered to lie on the floor, and one of the pair opened the cash register. Shots were fired; the proprietor was killed.

Maria Hopkins testified she had been babysitting at a nearby home that day when defendants arrived at 2:30 p.m. She was permitted to testify over defense objection that defendant Langston stated, "[T]hey had robbed the store”; that defendant Woodfork directed another at that scene to go to the store to "see what was happening”; and that defendant Woodfork stated, "[T]hey only got three dollars”.

Defendant Woodfork contends the admission of Langston’s statements violated the principles of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). We disagree.

It is well settled that admissions and statements of a codefendant are admissible against another defendant, even in the absence of a charge of conspiracy, provided there is sufficient independent evidence of a concert of action between the defendants. Fuentes v United States, 283 F2d 537 (CA 9, 1960). The statements attributed to Langston, who did not testify, were admissible against defendant Woodfork because there was evidence, aliunde, of a conspiracy, and the statements were made during its course. Thus, Bruton v United States, supra, where the admission of a nontestifying codefendant’s in-custody confession was held error, is distinguishable. In such a case, any common plan or scheme to commit a crime and successfully escape capture is terminated when a codefendant is taken into custody. See Kay v United States, 421 F2d 1007 (CA 9, 1970). See also People v Stewart, 46 Mich App 282 (1973).

Defendant Langston claims error in the trial court’s jury instructions relative to the defense of insanity. The error occurred when the trial court told the jury:

"Where there is any evidence in the case by the respondent which tends to show that at the time of the commission of the offense he was laboring under either permanent or temporary insanity, it then becomes the duty of the prosecution to prove the sanity of the respondent by at least a fair preponderance of the evidence. "(Emphasis supplied.)

While it is true that the prosecution must at least prove a defendant claiming an insanity defense to be sane by a preponderance of the evidence, that alone would not satisfy the state’s burden. The prosecution must prove, in such an instance, that the defendant was sane beyond a reasonable doubt. People v Geiger, 10 Mich App 339 (1968); People v Neumann, 35 Mich App 193 (1971).

The trial court made that point clear in other instructions:

"It is the further contention of defendant Calvin Langston * * * that [he] was, at the time of the crime alleged, criminally insane. That defendant, having introduced competent evidence, including an expert opinion and lay testimony, raising serious question of his sanity, it has become the burden of the prosecution to establish beyond a reasonable doubt that Calvin Langston was in fact sane at the time of the crime alleged in the information.

"The burden of proof is upon the people to establish the respondents guilty beyond a reasonable doubt, and to establish that Calvin Langston, Jr., was sane. The burden is not upon Calvin Langston to prove himself insane.

"Let me state, on insanity, the burden of proof. At the outset, there is a presumption in cases of this kind that the respondent Calvin Langston, was sane, but as soon as evidence is offered by the respondent to overthrow this presumption, the burden shifts and then it rests upon the people to convince the jurors beyond a reasonable doubt of the respondent's sanity, as that is one of the necessary conditions on which guilt may be predicated. When any evidence is given which tends to overthrow that presumption, the jurors should examine, weigh, and pass upon it with the understanding that, although the initiative in presenting the evidence is taken by the defense, the burden of proof in this part of the case is upon the prosecution to establish the conditions of guilt. Emphasis supplied.)

The trial court then further instructed the jury that every element of the crime must be proven beyond a reasonable doubt in order to warrant conviction, and defined reasonable doubt, not in comparison to the preponderance of evidence test, but in terms of fair doubt based on reason and common sense.

We are convinced that the contested instruction which did not completely describe the prosecution’s burden cannot be read out of context with the other repeated instructions that did accurately set out the relative burdens. Those other instructions, coming before and after the acknowledged misstatement, as well as the entire charge to the jury, when read as a whole, adequately apprised the jurors of their duty.

We note it has been said in other cases that:

"[W]hen several instructions are imparted to the jury, some proper and some incorrect, the jury is presumed to have followed the erroneous * * * .” See, e.g., People v Neumann, supra, pp 195-196.

However, the contested instruction in this case was only incorrect in that it did not completely describe the prosecution’s burden of proof. The whole charge to the jury, and specifically those portions quoted above, are not necessarily inconsistent with the contested instruction and serve to augment and clarify what was intended.

We stress that our analysis is, in part, based on the lack of objection to the contested instruction or the assertion of any need to clarify what the jury had been told. That acquiescence at the time the case is submitted to the jury indicates the defendant was satisfied the instructions, when given, adequately apprised the jurors of the law. Any error is harmless. See People v Nelson, 35 Mich App 368, 370 (1971).

Affirmed.

Fitzgerald, P. J., concurred.

1 MCLA 750.316; MSA 28.548, and MCLA 750.529; MSA 28.797, respectively.