People v. McGilmer ( 1980 )

M. J. Kelly, P.J.

Defendant was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305, and of being an habitual offender, MCL 769.12; MSA 28.1084. Defendant was subsequently sentenced to 10 to 15 years imprisonment and now appeals as of right.

Defendant first assails his conviction under the habitual offender statute as being unconstitutional because it punished the status of being a criminal. This argument is lacking in merit. People v Hendrick, 52 Mich App 201, 207-208; 217 NW2d 112 (1974), aff'd 398 Mich 410; 247 NW2d 840 (1976), People v Potts, 55 Mich App 622, 634-639; 223 NW2d 96 (1974).

Likewise lacking in substance is defendant’s claim that the discretion afforded the prosecutor under the habitual offender statute is violative of due process and equal protection. People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968).

Finally, defendant contends that the trial court committed reversible error by granting the prosecution’s motion to consolidate his case with that of his brother and by denying his motion in opposition thereto and his later motion to sever.

The decision on which the defendant relies for his severance argument is People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), which states the general rule to be that a defendant does not have a right to a separate trial.

"Joinder of defendants for trial is usually within the discretion of the court. However, '[a] severance should be granted when the defenses of several defendants jointly indicted are antagonistic to each other’. 5 Wharton’s Criminal Law & Procedure § 1946; Anno: Right to severance where two or more persons are jointly accused, 70 ALR 1171.” (Footnotes omitted.)

So the question becomes, what constitutes an antagonistic defense. This defendant, Calvin Lewis McGilmer, did not present any affidavit in opposition to the prosecution’s motion for joinder. Counsel for his brother, that is, counsel for Norman McGilmer, did present an affidavit in opposition. His attorney preliminarily argued that:

"Defendant recognizes that it would not be an abuse of discretion for this Court to grant prosecution’s motion for consolidation of trials if the defendant did not provide a supporting affidavit.”

Thereafter, by affidavit and by oral argument on the motion, counsel for defendant Norman Mc-Gilmer presented the argument that although Norman would not take the stand and would not present testimony or evidence, he, that is counsel, would argue that Norman was not the dark complected black man seen by the witness, it was Calvin. Calvin’s counsel presented no argument against joinder except this statement:

"Mr. Burgess: Your Honor, I had not been involved in this, but I did inform the Court at the last hearing that I would be in support of the denial for the motion to consolidate and join Mr. Ferris in his motion.”

In denying the motion the court ruled:

"Both the defendants can refuse to take the stand, and then there wouldn’t be any conflict. If one takes the stand, I don’t know if he would necessarily accuse the other.”

And what followed was as predicted. Calvin took the stand and testified. He gave evidence, but he did not implicate his brother. He exculpated himself and his brother. Before he testified his counsel addressed the jury as follows:

"I represent Calvin McGilmer. You have heard the statements of Mr. Blixt [prosecutor], statements of Mr. Ferris [counsel for Norman McGilmer] and I would again tell you that those are not evidence. My statements are not evidence. The evidence you’re going to have to consider is the evidence that is presented from the witness stand, and the exhibits and stipulations in this case.”

The evidence presented on behalf of Norman was constituted only of testimony of a police sergeant and two exhibits which were photographs of each defendant. Thereafter, the defense of Norman Mc-Gilmer rested and Calvin McGilmer took the witness stand. He testified that he and his brother picked up a couple of girls at the Detroit bus station and took them to Ann Arbor and were directed by one of the girls to a parking lot in the Arrowwood Complex, arriving a little before 10 p.m., whereupon the brothers separated. He said thereafter that while he was sitting in the car "a guy came out and started to get in his car and started talking to me”. This unknown person then asked Calvin for a ride because he had a flat and Calvin gave him a ride to a store and brought him back and let him off in the lot. The man gave him some change, mostly in nickels and dimes in exchange for this favor, and Calvin bought a bag containing a headphone and earphone component set from this man. Thereafter, Calvin located his brother and the other suspect at a house of some friends and took off in the car. They were momentarily stopped by the police. Following Calvin’s cross-examination he rested his case.

The testimony later developed that the brothers and Martin Baxter were apprehended a short distance from the apartment complex by police officers answering a call as to the breaking and entering. Martin Baxter successfully avoided prosecution but was subpoenaed to testify at trial and, although he was a reluctant witness, his testimony detailed the brothers having broken into the apartment with the use of a tool they used to pry a sliding glass door off its track. The defendants were further implicated by the inhabitants of the adjoining apartment who called the police and by the police officers who apprehended them within three or four minutes of their having been dispatched. The headphones and camera taken from the burglarized apartment were in the vehicle; the camera in the back seat and the headphones in the front seat. A substantial quantity of nickels and dimes found on defendant Calvin McGilmer were linked to the items missing from the burglarized apartment.

We do not think the defenses were antagonistic. A fair reading of this record puts both Calvin and Norman at the scene of the crime, identified and apprehended with the fruits of the burglary. The suggestion that it was a finger-pointing match between the brothers was a sham totally injected by counsel’s argument and unsupported by actual or proffered testimony or exhibits.

In People v Dunlap, 87 Mich App 528; 274 NW2d 62 (1978), this Court held that severance was not required where an allegation of antagonistic defenses was not supported either by citing previous antagonistic statements made by the co-defendant or by making an offer of proof on the point. People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), held that a supporting affidavit defining the inconsistencies between the defenses of the parties is required before this Court will find an abuse of discretion in not ordering separate trials. Norman McGilmer never testified against Calvin, nor was an offer of proof made out of the presence of the jury so that the court could make an informed decision. We believe this case is distinguishable from People v Webb, 82 Mich App 182; 266 NW2d 483 (1978), lv den 404 Mich 809 (1978), wherein the testimony of each defendant clearly implicated the other.

Affirmed.

M. F. Cavanagh, J., concurred.