Summary
holding that a jury may convict a defendant based solely on the testimony of an accomplice
Summary of this case from People v. KnappOpinion
Docket Nos. 43214, 44032.
Decided May 19, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Richard L. Miller and Raymond L. Miller, for defendant Sullivan on appeal.
Monsey G. Wilson, for defendant DeJarnette on appeal.
Before: J.H. GILLIS, P.J., and ALLEN and BEASLEY, JJ.
The defendants were tried jointly and convicted of first-degree felony-murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), by a Detroit Recorder's Court jury. Each was sentenced to a mandatory two years imprisonment on his felony-firearm conviction and to life imprisonment on his felony-murder conviction. They appeal as of right pursuant to GCR 1963, 806.1.
Defendant Sullivan first argues that the lower court erred in permitting the testimony of a prosecution witness whose name had not been endorsed on the information filed against him. The argument is without merit. The late endorsement of a witness is within the discretion of the trial court. That discretion should be exercised with due regard for the defendant's right to a fair trial. People v Ward, 85 Mich. App. 473, 479; 271 N.W.2d 280 (1978). In the present case, the witness's name was endorsed on the information filed against codefendant DeJarnette and the cases were consolidated for trial. Furthermore, counsel for Sullivan was provided with the witness's statement prior to trial. Lastly, an examination of the record discloses that the testimony of the witness in question was substantially the same as that of three other witnesses. Under these circumstances we conclude that the trial judge did not abuse his discretion in permitting the witness to testify.
Sullivan next contends that the lower court erred in admitting a photograph of the decedent. We note that the photograph was taken approximately seven months before the incident in question and depicted the decedent, his wife and a small child.
Initially, we note that appellate counsel has neither cited authority nor presented policy arguments in support of this contention. It is well settled that a mere statement of position without argument or citation of authority is insufficient to bring the issue before an appellate court. Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959). We shall address the issue nonetheless.
The admission of photographs of victims of crime is committed to the discretion of the trial court. People v Eddington, 387 Mich. 551; 198 N.W.2d 297 (1972). The issue to be addressed in the admission of photographic evidence is whether the photograph is substantially necessary or instructive to show material facts or conditions or is merely calculated to excite passion and prejudice. People v Falkner, 389 Mich. 682, 685; 209 N.W.2d 193 (1973). Here, the photograph was substantially necessary to show the identity of the victim. Furthermore, we again emphasize that the photograph depicted the victim's appearance prior to the crime. It was in no way inflammatory or gruesome. Under such circumstances, it cannot be said that the lower court abused its discretion in admitting the photograph into evidence.
Defendant Sullivan contends that the trial court erred in denying his motion for a directed verdict of acquittal where the only testimony connecting him with the crime was provided by an accomplice who had been granted immunity. The argument is meritless. The credibility of an accomplice is a jury question. A jury may convict on such testimony alone. People v Ochko, 88 Mich. App. 737, 741; 279 N.W.2d 294 (1979). When one views all the evidence presented by the prosecution up to the time the motion was made, in the light most favorable to the prosecution, one finds that sufficient evidence was presented from which a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. See People v Hampton, 407 Mich. 354; 285 N.W.2d 284 (1979). The denial of defendant's motion was without error.
Both defendants contend that the lower court erred in declaring an endorsed res gestae witness unavailable due to ill health and in excusing her production. A trial judge's finding of diligent efforts to produce a res gestae witness and the concomitant decision to excuse production will not be reversed absent a clear abuse of discretion. Due diligence means doing everything reasonable, not everything possible. People v Frazier, 95 Mich. App. 570; 291 N.W.2d 125 (1980), MCL 767.40; MSA 28.980. No such abuse is here present.
The charges in this case arose out of an armed robbery committed against an elderly couple. During the course of the robbery, the husband was killed. The witness in question was the decedent's wife. At the time of trial, the victim, who was 84 years old, was in a nursing home in Tennessee where she had been since the date of the killing. The officer in charge of the case had contacted her physician who stated that the witness was suffering from heart problems, that she was a diabetic and that she required daily private nursing care. The physician opined that if the witness were required to testify, this would have serious adverse consequences to her health. The physician advised against her being brought to Michigan to testify. Under these circumstances, the trial judge's implicit finding that the prosecution was sufficiently diligent in its efforts to produce the witness was not an abuse of discretion.
Defendant DeJarnette further contends that the trial court's decision to permit an investigating officer to testify as to statements which this witness made shortly after the attack constituted error as a violation of his right to confrontation. We disagree.
The statements in question were a single question as to her husband's condition and a single declaration that she was not feeling well. These statements though hearsay were admissible as they fall within exceptions to the hearsay rule of exclusion. MRE 803(2) and 803(3) respectively. Nothing in the confrontation clause automatically requires exclusion of all hearsay. Whether a particular hearsay statement may be admitted without infringing on the defendant's right of confrontation depends on the nature of the declaration and the circumstances of its making. People v Fell, 65 Mich. App. 543, 549; 237 N.W.2d 550 (1975). The nature of the declarations in the present case is such that we can perceive no way in which the defendant was prejudiced by their admission into evidence. Accordingly, the right to confrontation was not violated.
Defendant Sullivan next contends that a conviction under the felony-firearm statute requires personal possession of a firearm. That contention is refuted by People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979), lv gtd 407 Mich. 882 (1979), People v Atkins, 93 Mich. App. 524; 286 N.W.2d 901 (1979).
An examination of the remaining issues raised by the defendants discloses them to be without merit. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), Weatherford v Bursey, 429 U.S. 545, 561; 97 S Ct 837; 51 L Ed 2d 30 (1977).
Affirmed.
ALLEN, J., concurred.
I respectfully dissent from that part of the opinion which holds that the felony-firearm statute does not require personal possession of a firearm. I would hold that one cannot be convicted of violating the felony-firearm statute as an aider and abettor. People v Walter Johnson, 85 Mich. App. 654; 272 N.W.2d 605 (1978).
Otherwise, I concur fully with the majority.