People v. Pearson , 61 Mich. App. 366 ( 1975 )

O’Hara, J.

These are appeals of right from convictions by a jury of first-degree murder. The charges were laid under our so-called felony-murder statute. MCLA 750.316; MSA 28.548. The statute by its terms makes any homicide murder in the first degree when committed in the perpetration or attempt to perpetrate certain specified felonies.

The felony here involved is robbery.

Defendants set forth six assignments of error. To understand them a skeletal fact recitation is necessary. When we use the term facts, we include claims of fact supported by sufficient evidence to make that claim of fact jury submissible.

Both named defendants were identified as being present and armed at the time and place of the homicide. The identity of a third person was controverted. One defendant took money, the other jewelry. The fact question as to the perpetration of the robbery was sufficiently established to go to the jury.

As to the killing in its perpetration, the defense contended that a third person, never apprehended or identified, came into the motel during the incident and fired the fatal shots.

It was the theory of the prosecution that the two named defendants acting in concert killed the deceased. There was ample testimony and circumstantial evidence to permit the jury to accept the theory of the prosecution.

We turn therefore to the assignments of error. We consider number one:

Must defendants’ convictions be reversed because the trial judge refused to indorse on the people’s information the name of a res gestae witness?

This assignment of error stated as a question includes its own answer. Of course res gestae witnesses must be indorsed on the information. But the whole question in this case is whether the third person, whose identity was in doubt, was, in fact, the third person in the room with defendants. He was originally charged with the two named defendants and the charge against him was dropped. This was no "deal” to obtain incriminating testimony. The prosecutorial authorities were satisfied that he had a completely satisfactory alibi. The trial judge held a hearing on the issue out of the presence of the jury and found that the third party was not present and not a res gestae witness. Certainly, this issue had to be decided by the court. It couldn’t be submitted to the jury. Furthermore, had he been present, under the testimony, he would have been an accomplice and an exception to the res gestae witness rule. People v Moore, 29 Mich App 597; 185 NW2d 834 (1971).

We find no merit in this claim of error. We do not think it necessary to advert to People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), hence we merely note it requires a prior motion for a new trial to perserve this issue for review.

The second claim of error is:

Did the trial court commit prejudicial error by denying defendants’ motion for a mistrial for prosecutorial misconduct for charging a witness with perjury and arresting two other witnesses?

In support of this claim defendants cite, among others, a fourth circuit case, Bray v Peyton, 429 F2d 500 (CA 4, 1970), which, of course, we may consider but by which we are not bound. It is argued that by issuing warrants (one for perjury committed prior to this trial and two bench warrants for material witnesses after they had testified in the instant case to insure their appearance as witnesses in the unrelated perjury proceedings)¹ a "coercive” atmosphere was created. There is no suggestion that the warrants were not issued in compliance with all legal requirements. It is hardly necessary to restate that prosecutors may not threaten witnesses in order to obtain favorable testimony.

Such, however, is not the situation here. The witness charged with perjury testified that she was promised nothing in connection with her testifying. A review of her testimony shows little, if any, that was crucial. We cannot assume law enforcement officials, specifically prosecuting attorneys, issue perjury warrants to "buy” testimony. Nor can we place the stamp of judicial approval upon requiring prosecuting attorneys to delay for an indeterminate time the filing of charges because an accused is a witness in a separate case.

The third claim of error is somewhat difficult to understand completely. It reads as follows:

The trial court committed prejudicial error by allowing the prosecutor to impeach a witness whom the prosecutor had charged with perjury allegedly committed in this case.

In support of this assignment of error defendants argue as follows. The prosecutor had taken to the podium some yellow sheets of paper and flipped them over as he propounded the questions to the witness. The claim is made that the prosecutor allegedly read from a prior statement made by the witness to the police in an attempt to impeach the witness without first laying a sufficient foundation therefor.

Cited in support of this claimed error are two cases. One is People v Jackson, 42 Mich App 468; 202 NW2d 463 (1972). In Jackson the piece of paper the prosecutor had was an out-of-court statement made to the police. The trial judge admonished counsel "don’t read from that statement”. This is hardly support for the fact that an advocate cannot utilize the traditional yellow tablets or sheets therefrom while examining a witness. Defendants also cite People v Thomas, 359 Mich 251; 102 NW2d 475 (1960). This case is even less related to the one at bar since in that case admittedly the prosecutor was permitted to read, in the witness’s presence and that of the jury, excerpts from a statement given the prosecutor three years before. He interspersed questioning while reading from it. In the instant case the court refused to allow the prosecutor to question the witness about the substance of the statement without first laying a foundation. The court subsequently refused to allow the reading of the statement to which objection was made. Nor may the prosecutor’s questions be characterized as having the effect of using the witness’s prior statement. The questions cannot be said to be improper since there is no reference to the written statement. People v Jackson, supra.

The fourth claim is prosecutorial misconduct in rebuttal argument to the jury. The argument concerned why the third man alleged to have been in the room when the claimed robbery was being committed or attempted to be committed was no longer in custody and there was "no case” against him. We quote one of the excerpts:

"You are told, ladies and gentlemen, that because the case against — or that because the particular person who was in custody, Raymond Collins, is no longer held that there is no case against him, that it means that the police and the prosecution don’t believe Earline Pattaway. You are asked what other conclusion can you arrive at. The conclusion that you can arrive at is that the police and the prosecution know that he wasn’t the man.”

Certain others are specified by the defendants. We have examined the record with extreme care. All the statements, as before noted, were made in the prosecutor’s rebuttal argument; each of the questioned statements was made in response to defense counsel’s remarks in his closing argument.

It is permissible for the prosecutor to respond in final argument to matters first raised by the defense in closing argument. People v Thomas, 17 Mich App 740; 170 NW2d 286 (1969). Hence, even if the remarks were improper, reversible error has not occurred. People v Green, 34 Mich App 149; 190 NW2d 686 (1971).

High as is the duty of the prosecutor not to take advantage of his public position of trust, it does not extend to sitting mute at the counsel table while his adversary is given virtual free rein.

The fifth error concerns claimed erroneous instructions. Two instructions are involved.

"In considering the testimony in this case, members of the jury, if in fact you are satisfied beyond a reasonable doubt that there was a robbery or an attempt to commit a robbery in the motel room and that the parties left the motel room in furtherance of the unlawful activity, the fact that the actual murder took place in the motel lobby rather than in the motel room would have no effect on the situation because it would be part of a continuing offense.”

Standing alone this instruction would be reversibly erroneous. The learned trial judge obviously misspoke when he said: "the fact that the actual murder took place in the motel lobby rather than in the motel room would have no effect upon the situation.”

Literally taken he said, "[a] murder took place”. The question of whether either of the two defendants killed the deceased was an essential ingredient of the felony-murder charge. The other was that the killing took place in the perpetration or attempt to perpetrate the felony of robbery.

When alert defense counsel objected to the quoted charge the trial judge recalled the jury and charged them additionally as follows:

"Members of the jury, I am further going to charge you in this case that if you found that in fact an armed robbery or an attempt to commit an armed robbery was committed in the motel room but that when the parties left the motel room and entered into the lobby, if you have a reasonable doubt that these two defendants or another party with them did not cause the death of the deceased Mr. Kidd then you would likewise have to exercise that reasonable doubt in favor of the defendants and find each of the defendants not guilty.”

To this instruction no objection was made. We can assume only that defense counsel was satisfied with it and acquiesced in it. Thus we may not properly pass on it on appeal.

We reject defendants’ contention that it was reversibly erroneous for the trial court to instruct the jury that they could not convict "if you have a reasonable doubt that these two defendants * * * did not cause the death of the deceased” rather than stating it positively that if the jury entertained a reasonable doubt that the defendants caused the death of the deceased they must acquit.

We find no error as claimed in the trial judge’s unequivocal instruction that if the homicide took place in the lobby rather than the motel room it would make no difference as long as "the parties left the motel room in furtherance of the unlawful activity”. It was a jury question and properly submitted to them.

We reject claim of error number five that the charge of the court taken as a whole did not fairly present defendants’ theory, including the fact that some unidentified person came in the front door, killed the deceased and disappeared.

Lastly, we reject the contention that the trial judge did not instruct the jury that their verdict had to be unanimous. We quote:

"The defendants in this case are, as the defendants are in every criminal case, presumed to be innocent. That presumption attaches to them at the outset of the case and remains with them during the entire trial and during your deliberations in the jury room until you and each and every one of you are satisñed beyond a reasonable doubt of each defendant’s guilt. You should attempt, members of the jury, to rationalize the testimony in this case, if you can, consistent with the theory of the innocence of each accused.” (Emphasis added.)

"[Y]ou and each and every one of you”, is as unanimous as can be required.

This case was most vigorously and competently tried by the defense and by the people. The trial judge literally went overboard in giving each counsel every opportunity to state his position, make objections and argue his theory of the case. By all the established requisites of our system the parties had a fair trial. The jury spoke. We cannot disturb its verdicts.

Affirmed, as to both defendants.

Judge D. E. Holbrook, Jr. concurs in the result only.

1 The bench warrants were not executed and the witnesses were merely placed under bond as material witnesses to insure their appearance in the separate perjury case.