People v. Hess

Per Curiam.

Defendant, Virgil Hess, and his codefendant, Douglas Roy Schrotenboer, were charged with breaking and entering a warehouse with the intent to commit larceny, MCL 750.110; MSA 28.305. Hess was also charged with assault with intent to commit murder, MCL 750.83; MSA 28.278. In June of 1982, defendants were tried before two juries in a bifurcated trial. Hess was convicted as charged and sentenced to 5 to 10 years for the breaking and entering conviction and 10 to 20 years for the assault conviction, the sentences to run concurrently. Schrotenboer was convicted of a lesser offense of attempted breaking and entering a building with the intent to commit larceny and was sentenced to three to five years in prison. Both defendants appeal as of right. This opinion deals only with defendant Hess’s appeal.

Defendant Hess raises several issues on appeal. Because we find merit to one of his arguments which mandates reversal and a remand for retrial, we will not, in this opinion, address the other issues raised by defendant. However, our review of the record reveals that the remaining allegations of error raised by defendant will not arise upon defendant’s retrial.

We agree with defendant’s claim that the prosecution’s reference to codefendant Schrotenboer’s confession, testimony, and prior conviction in the joint closing argument constituted error. During closing argument, the prosecutor alternately addressed each defendant’s jury.

Defendant Schrotenboer’s confession and prior conviction were not introduced at the Hess trial. Even though the prosecutor addressed each jury, he did overlap arguments. Prefacing portions of his argument with the name of each jury did not prevent both juries from hearing the entire argument. Words such as "confession” and "prior conviction” would certainly pique any juror’s interest. Even though the contents of the Schrotenboer confession were not revealed, the Hess jury could infer that, since both defendants were on trial, both defendants were implicated. There was a distinct possibility that the Hess jury, knowing that both defendants lived together, were fired from the same job, and that defendant Schrotenboer was a convicted felon and had confessed, would find Hess guilty by association.

The sole purpose of the bifurcated trial was to eliminate prejudice. However, the joint closing argument totally undermined the effect of the bifurcated trials in defendant Hess’s case. In our opinion, the joint closing argument prejudiced defendant Hess and a cautionary instruction to the jury would not have eliminated this prejudice.

Reversed and remanded for a new trial.