People v. Dupuie , 52 Mich. App. 510 ( 1974 )

52 Mich. App. 510 (1974) 217 N.W.2d 902

PEOPLE
v.
DUPUIE

Docket No. 13883.

Michigan Court of Appeals.

Decided April 26, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.

Raymond L. Miller, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and T.M. BURNS and VAN VALKENBURG,^[*] JJ.

VAN VALKENBURG, J.

Defendant was found guilty by a jury on April 11, 1969, of the felony of robbery armed, MCLA 750.529; MSA 28.797, was sentenced to a prison term of from 10 to 20 years on May 16, 1969, and appeals on leave granted.

On December 1, 1967, a certain Detroit bar was held up by Andrew Goeppner and John Carl, III. Goeppner and Carl were found guilty in a joint nonjury trial and were sentenced to life imprisonment. Their convictions were affirmed by this Court. See 20 Mich. App. 425; 174 NW2d 143 (1969). Subsequent to that trial Carl implicated defendant. Both Carl and Goeppner testified at defendant's trial to the effect that defendant herein planned the robbery, furnished the information as to where the money was kept within the bar, supplied the gun, and divided the proceeds; but that defendant remained in the automobile outside the bar during the perpetration of the robbery. Defendant took the stand and testified that while he knew Goeppner and Carl, he took no part in the robbery.

Somewhat more than two years after defendant's conviction, Goeppner and Carl moved for new trials before the trial court. Their motions were granted. They thereafter pled guilty to armed robbery and were sentenced to 7-1/2 to 15 years.

On appeal defendant argues that he was denied due process and equal protection of the laws by reason of the fact that he received a harsher sentence than Goeppner and Carl received upon retrial. Defendant further argues that he did not receive a fair trial since the jury should have been informed of the deal made with Goeppner and Carl to secure their testimony and the jury should have been instructed as to the caution with which an accomplice's testimony should be viewed.

Defendant's argument with respect to equal protection of the laws is not well founded. Equal protection does not demand equal sentences, providing the different sentence or treatment was not based upon some arbitrary classification such as race or religion. See People v Sawicki, 4 Mich. App. 467; 145 NW2d 236 (1966), and People v Smyers, 47 Mich. App. 61; 209 NW2d 281 (1973).

There is no question that if Goeppner's and Carl's testimony was secured by promises of leniency, the jury must be apprised of that fact. See Giglio v United States, 405 U.S. 150; 92 S. Ct. 763; 31 L. Ed. 2d 104 (1972); People v Nettles, 41 Mich. App. 215; 199 NW2d 845 (1972). The question thus becomes whether there was, in fact, some deal made by the prosecutor to secure the testimony.

It should be noted that the question of whether a deal had been made was explored and argued at trial. Both the witnesses and the prosecutor denied that there was any deal made. Defendant, however, points to the fact that the witnesses were later granted new trials which resulted in reduced sentences. Had the temporal relationship between the giving of the testimony and the granting of the new trials been closer, we would be inclined to remand the matter to the trial court for a hearing to determine whether a deal had been made at the time of defendant's trial. Here the very fact that the motions for new trial were made more than two years after the testimony was given militates against a finding that there was any deal made by the prosecutor to secure the testimony. The fact that the trial court may have taken the witnesses' cooperation into consideration in granting the new trial would not affect the fairness of defendant's trial, providing there was no hidden promise of leniency made to secure the witnesses' testimony. Upon this record we find that there is not a sufficient showing of any deal to justify further inquiry.

While defendant was probably entitled to an instruction as to the caution with which an accomplice's testimony should be viewed, there is no need for the trial court to give such an instruction sua sponte. Defendant's failure to request such an instruction precludes his raising such failure as error on appeal. GCR 1963, 516.2; see also People v Love, 43 Mich. App. 608; 204 NW2d 714 (1972).

The remainder of defendant's allegations of error are of no merit. The question of the failure of the prosecutor to endorse and produce an alleged res gestae witness is not properly before this Court, since defendant failed to preserve the question by a motion to endorse before the trial court. Likewise the question of whether the verdict was against the great weight of the evidence was not preserved, since no motion for a new trial was made below.

Affirmed.

V.J. BRENNAN, P.J., concurred.

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

I cannot agree with the majority decision that there was not a sufficient showing of any deal upon the record to justify further inquiry.

The majority concedes that "if Goeppner's and Carl's testimony was secured by promises of leniency, the jury must be apprised of that fact". See Giglio v United States, 405 U.S. 150; 92 S. Ct. 763; 31 L. Ed. 2d 104 (1972); People v Nettles, 41 Mich. App. 215; 199 NW2d 845 (1972). However the majority concludes that the length of time between the date the testimony was given and the date the motions for new trial were made militated against a finding that there was any deal made by the prosecutor to secure the testimony.

I do not believe that the period of time between the date the testimony was given and the date the motions for new trial were made is dispositive of the question of the existence of a deal. The delay in resentencing is not inconsistent with defendant's theory. Goeppner and Carl were originally sentenced to life imprisonment. If there in fact was a deal whereby they would have their sentences reduced to a minimum of 7-1/2 years, the delay of 2 years certainly did not prejudice them. These witnesses would not be harmed by the delay in bringing the actions for a new trial until the expiration of the aforementioned 7-1/2 years.

After carefully reviewing the record in this case, I am convinced that in spite of the denials by Goeppner and Carl, a deal in fact had existed. Defendant's counsel did not have sufficient information at his disposal to prove the existence of a deal, and while he was able to hint that such a deal existed when cross-examining these witnesses, he could not conclusively prove its existence.

Whether the prosecution merely failed to obtain this evidence rather than actively suppressed evidence already in hand is of no consequence here. People v Jordan, 23 Mich. App. 375, 388; 178 NW2d 659 (1970). The fact remains that the existence of a deal was effectively suppressed from the jury. This information would have been of immeasurable benefit to the jury in determining Goeppner and Carl's credibility where credibility was such an important issue as in the instant case. The defendant did not receive a fair trial. Consequently, he is entitled to a new trial where once the question of the existence of a deal has been raised, the prosecution should be required to show by clear and convincing evidence that no such deal existed.

I vote to reverse and remand for a new trial.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.