Michigan Court of AppealsJan 17, 1979
88 Mich. App. 210 (Mich. Ct. App. 1979)
88 Mich. App. 210276 N.W.2d 558

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Docket Nos. 77-824, 77-825, 77-939, 77-945.

Decided January 17, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and William Wertheimer, Timothy Scallen, and Anne B. Wetherholt, Assistants Prosecuting Attorney, for the people.

Lawrence R. Greene, for defendant Dujuan Miller.

Thomas A. Law, for defendant Michael Davis.

Gerald S. Surowiec, for defendant Kevin Ewing.

Before: ALLEN, P.J., and R.M. MAHER and J.E. TOWNSEND, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


Defendants Miller, Davis and Ewing were each charged with one count of felony murder, MCL 750.316; MSA 28.548, and three counts of armed robbery, MCL 740.529; MSA 28.797. The three defendants were represented by separate counsel, but were tried jointly. A recorder's court jury found defendants Miller and Davis guilty as charged, and found defendant Ewing guilty of second-degree murder, MCL 750.317; MSA 28.549, and one count of armed robbery. All defendants received life sentences on each count on which they were convicted. All three defendants appeal and these appeals have been consolidated.

The charges stem from an armed robbery of the Pixie Restaurant in Detroit on August 11, 1976. Testimony and evidence at trial indicated that defendants Miller and Davis entered the restaurant and robbed at gunpoint William Beneson, Robert Tompkins, and Edward Cornwall. As Miller and Davis were leaving, Miller fired a shot which killed Beneson. Defendant Ewing provided Miller with the weapon and waited in a car outside the restaurant. The car was driven by David Lyles, a friend of the defendants, who was paid $3 by Miller to drive defendants to the restaurant and wait for them. After dropping them off, Lyles drove off with Ewing without waiting for Miller and Davis. Lyles was at one point arrested, but he was never charged with the crime.

Tompkins testified that Davis was one of the robbers, but was not sure if Miller was the other. Cornwall identified both Miller and Davis as the robbers. Pierr Harris, who knew both Miller and Davis, testified that she was near the Pixie Restaurant at the time of the crime, heard a shot, and saw Miller and Davis running from the restaurant. Lyles testified that after the robbery Miller had said that he killed Beneson. Confessions made by each defendant were admitted at trial, but none of the defendants testified. Miller called two witnesses in defense who contradicted the testimony of Harris. Other than that, the defense consisted of attacking prosecution witnesses.

On appeal defendants raise a plethora of issues, three of which merit special attention. The remaining may be disposed of summarily. When necessary, additional facts will be developed.


Each defendant claims due process was violated and reversible error was committed because the trial judge selected the jury by what we shall call the "struck jury" method. Seventy-three members of the jury panel were identified and selected as prospective jurors. All defense counsel were given an opportunity to examine the juror sheets on the morning of the jury selection. None took advantage of the opportunity. Nor did any of the defense counsel submit questions for voir dire. The trial court itself questioned the jurors collectively and, at times, individually. After the court's voir dire, defense attorneys and the prosecutor were permitted to exercise their challenges on a rotating basis. The panel was reduced to 11 persons at which time 38 additional prospective jurors were seated and questioned. The procedure was repeated until 14 jurors remained. No juror was excused for cause. Miller and Davis each exhausted their 20 peremptory challenges and Ewing used 19 of his.

The method described above is not the only jury selection method termed the "struck jury" method. A perhaps more traditional procedure entailed actually striking the names of jurors from a jury list until only 24 remained and then proceeding normally as to the remaining 24. This method was authorized in Michigan by statute until 1963. MCL 618.45; MSA 27.1025. Repealed by MCL 600.9901; MSA 27A.9901. 1961 PA 236.
A method similar to that used here was approved by the Supreme Court in Pointer v United States, 151 U.S. 396; 14 S Ct 410; 38 L Ed 208 (1894). Similar methods continue to be used in Federal courts. Swain v Alabama, 380 U.S. 202; 85 S Ct 824; 13 L Ed 2d 759 (1965), United States v Mathis, 550 F.2d 180 (CA 4, 1976). Some states also use the procedure. 50 CJS, Juries, § 5. Generally, there appears to be statutory authorization where the method is used.

Defendants contend that this procedure violated GCR 1963, 511.6 and infringed upon the exercise of their peremptory challenges. The only specific claim of prejudice made by any of the defendants is that they could not keep track of the responses of the individual panel members. On the facts of this case we do not find reversible error.

We cannot accept the contention that defense counsel could not keep track of the responses of the prospective jurors. The struck jury method has been used and continues to be used in other jurisdictions and the attorneys there handle the situation. Nor do we find that the technical violation of GCR 1963, 511.6 mandates reversal. GCR 1963, 511, which provides for the impaneling of jurors, was designed with the usual method of starting with a panel of 12 prospective jurors in mind. Therefore § 6 of the rule becomes important in order to insure that the effect of subsequent challenges will not be diluted by exercising them on a diminishing panel, and then having the members replaced with persons even less desirable. Under the instant method this problem never arises because counsel know from the start and can decide even before their first challenge all of the individuals they wish to challenge. Hence, the purpose behind GCR 1963, 511.6 was achieved here. With the exception of § 6, the struck jury method used here was in compliance with all of the other requirements of GCR 1963, 511.

The evidence against defendants was overwhelming. In this case we do not find a miscarriage of justice and reversal is unwarranted. MCL 769.26; MSA 28.1096. In addition, defense counsel were informed by the trial court a month before trial that the struck jury method would be used and no objection was made until the first day of selecting the jury. Although the use of the struck jury method did not warrant reversal in this case, our opinion should not be read as an endorsement of the method. Our Supreme Court has provided for a method of impaneling a jury, and the surest way of avoiding error, particularly in the sensitive area of a defendant's right to a jury trial, is to follow the accepted method.


Defendant Miller gave a false confession which exculpated him but inculpated both defendant Davis and defendant Ewing. Davis and Ewing were quickly arrested and they each confessed, but they incriminated defendant Miller. In the face of the contradiction between his statement and those of Davis and Ewing, Miller gave another confession which incriminated himself as well as Davis and Ewing. Except for Miller's first confession, all of the confessions described the same crime and events. There is no question that all defendants received full Miranda rights before any statements were given, and Miller received his rights twice, once before each of his confessions. All four of the confessions were introduced at trial.

On appeal it is contended that Miller's initial confession was given following an arrest made without probable cause. The police investigation of the crime continued over a month before defendant Miller was arrested. During this time many people were questioned about the crime and the name "Pops" came up several times in relation to the crime. Descriptions (but no names) of the robbers were obtained from Pierr Harris. Eventually the police learned that defendant Miller was known as "Pops" and they went to his home to question him. When the police met Miller they realized he matched very closely the description given by Harris. At that point Miller went with them to the police station where he made his first statement.

Whether or not Miller was actually arrested before he made his first statement, the police would have had sufficient probable cause to arrest him. The information available to the police while at Miller's home gave them "reasonable cause to believe" that defendant committed the crime. MCL 764.15(d); MSA 28.874(d). People v Green, 70 Mich. App. 311; 245 N.W.2d 730 (1976), lv den, 399 Mich. 855 (1977). Consequently, Miller's first statement was not taken in violation of his rights, and the subsequent statements of Davis and Ewing were not fruits of a poisonous tree. Miller's second statement was also validly taken and admissible. In passing we also note that defendants Davis and Ewing could not have relied on any impropriety in procuring defendant Miller's confession, because the impropriety involved infringement of a Fourth Amendment right and cannot be asserted vicariously. Brown v United States, 411 U.S. 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973), United States ex rel Wright v Cuyler, 563 F.2d 627 (CA 3, 1977).

One of the arguments made by defendants is that defendant Miller's arrest was the result of information received from unspecified informants, i.e., the people the police talked with during their investigation. These individuals were not "informants". They were people who admittedly heard rumors and had no unusual or special relationship with any of the defendants. Cf. People v Emmert, 76 Mich. App. 26; 255 N.W.2d 757 (1977), and discussion in People v Tooks, 403 Mich. 568; 271 N.W.2d 503 (1978).

Each defendant objected to the admission of his two codefendants' confessions because the confessions were, allegedly, prejudicial and violated their Sixth Amendment right to confront and cross-examine witnesses contrary to the rule of Bruton v United States, 391 U.S. 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). In the instant case, however, the confessions of each defendant had the names of any other defendant excised and replaced with John Doe #1, #2, or #3 as needed. Additionally, instructions were given that the confessions were to be used only in relation to the particular confessing defendant. In a multiple-defendant trial, confessions may be admitted where "any reference to one of the other codefendants is deleted" without violating Bruton. People v Macklin, 46 Mich. App. 297, 302; 208 N.W.2d 62 (1973).

The deletion of codefendants' names would usually be sufficient to avoid Sixth Amendment problems, but in this case all of the confessions gave a similar story, and defendants claim the net effect of reading all three confessions was to indicate that the deleted names were the names of the codefendants. We do not reach defendants' contention because each defendant admitted in his own confession the prejudicial information contained in the confessions of his codefendants. Where the various confessions are interlocking or substantially similar, the "powerfully incriminating extrajudicial statements of a codefendant" ( 391 US at 135) are not present as in Bruton, and hence it is harmless error at most to admit such statements. Mack v Maggio, 538 F.2d 1129 (CA 5, 1976), United States ex rel Duff v Zelker, 452 F.2d 1009 (CA 2, 1971), cert den, 406 U.S. 932; 92 S Ct 1807; 32 L Ed 2d 134 (1972), Walden v Neil, 318 F. Supp. 968 (ED Tenn, 1970), aff'd, 451 F.2d 1350 (CA 6, 1971).

Another issue relating to the confessions is raised by defendants Davis and Ewing. They each claim error in the admission of defendant Miller's initial statement which incriminated them and exculpated Miller. Neither defendant cites any authority for his position. False statements may be admissible, People v Dandron, 70 Mich. App. 439; 245 N.W.2d 782 (1976), so the question becomes whether the admission of the statement violated Bruton. For the same reasons that the admission of Miller's second statement did not prejudice Davis and Ewing, his first statement did not prejudice them.


Where two or more defendants are jointly charged with an offense, they may be tried jointly or separately in the discretion of the court. MCL 768.5; MSA 28.1028. People v Hurst, 396 Mich. 1; 238 N.W.2d 6 (1976). The trial court's decision will be upheld absent an abuse of discretion, People v Billingslea, 70 Mich. App. 371; 246 N.W.2d 4 (1976), which requires an affirmative showing of prejudice to substantial rights of the accused. People v Carroll, 396 Mich. 408; 240 N.W.2d 722 (1976). A defendant is entitled to a separate trial where defenses are antagonistic; that is, where it appears a codefendant may testify to exculpate himself and incriminate the defendant. People v Hurst, supra.

As mentioned earlier, each defendant's confession or statement inculpated the codefendants. But each statement also inculpated the defendant making the statement. Therefore, the confessions did not incriminate codefendants and exculpate the confessing defendant. The result was that the statements did not represent antagonistic positions. At trial, Ewing's defense amounted to one of noninvolvement, but his own statement prejudiced him as much as that of either defendant Miller or Davis. Defendants Miller and Davis challenged the accuracy of the observations of the prosecution witnesses and challenged the voluntariness of their confessions. None of these positions were antagonistic to one another. The pitting of defendants against each other, the animus of Hurst, was not present here.

Defendant Miller in his second confession stated that his gun discharged accidentally. Defendant Davis confessed to participating in the crime, but said he was running out the door when Miller's gun discharged. Defendant Ewing admitted giving the gun to Miller and being in the car that took Miller and Davis to the restaurant.


Defendants Davis and Ewing raise several other issues, none of which warrant reversal.

Contrary to the argument of defendants, neither MCL 712A.23; MSA 27.3178(598.23), nor People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974), precluded the prosecutor's questions relative to prior convictions of a defense witness. Impeachment is not restricted to convictions for felonies, but may include misdemeanors punishable by more than 90 days in jail. People v McMillan, 68 Mich. App. 113; 242 N.W.2d 518 (1976), lv den, 399 Mich. 825 (1977). MCL 712A.23; MSA 27.3178(598.23), does not preclude use of a juvenile record to impeach a witness who is not the defendant. People v Davies, 34 Mich. App. 19; 190 N.W.2d 694 (1971).

Defendants contend that remarks in closing by the prosecutor resulted in prejudicial error. The very brief remarks complained of might have raised the jurors' sympathies, but the remarks were in response to defense remarks, and no error resulted. People v Newby, 82 Mich. App. 489; 266 N.W.2d 492 (1978), People v Pomranky, 62 Mich. App. 304; 233 N.W.2d 263 (1975).

Since, even if true, two jurors' comments overheard by Ewing's mother were made after the close of evidence, there is no ground for reversal. People v Provost, 77 Mich. App. 667; 259 N.W.2d 183 (1977).

No error occurred when defendant Davis objected to the instruction on the effect of a defendant not testifying at trial. The instruction was requested by defendants Miller and Ewing. People v Hampton, 394 Mich. 437; 231 N.W.2d 654 (1975). Although not precisely on point, the Supreme Court's decision in Lakeside v Oregon, 435 U.S. 333; 98 S Ct 1091; 55 L Ed 2d 319 (1978), further supports our rejection of defendant's contention.

Defendant Ewing, individually, raises four additional issues. There was ample record evidence that Ewing had the requisite intent. The police complaint report met the tests of and was admissible under the business records exception to the hearsay rule. MCL 600.2146; MSA 27A.2146. The factual issue of whether Ewing furnished the gun was clearly left to the jury. No prejudice resulted from the court's emphasis on the charge of aiding and abetting. Ewing was the only defendant charged as an aider and abettor and the instructions given followed CJI 8:1:02 through 8:1:05 practically verbatim.


R.M. MAHER, J. (dissenting).

I respectfully dissent. I agree that defendants suffered no prejudice from the method used to select the jury. I likewise agree that no prejudicial error resulted from the denial of separate trials and from the admission of the defendants' statements at trial.

Although I am of the opinion that impeachment by high misdemeanors should be permitted, I do not believe that the Supreme Court opinion in People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974), can be read as authorizing such a rule. Until the Supreme Court holds otherwise, I believe that Renno must be construed to prohibit impeachment by all misdemeanors, People v Bernard Smith, 81 Mich. App. 561; 266 N.W.2d 40 (1978), People v Harris, 86 Mich. App. 301; 272 N.W.2d 635 (1978). In the case at bar, moreover, the specific offense of which the witness had been convicted was never revealed. I fail to see how this Court can hold the impeachment proper because the offense was a high misdemeanor without knowing the nature of the offense. In view of the overwhelming evidence against defendants, however, I find the error harmless.

I also disagree with the majority's statement that a police preliminary complaint report is admissible as a business record. I share the skepticism expressed by Justice COLEMAN in Moncrief v Detroit, 398 Mich. 181, 189; 247 N.W.2d 783 (1976):

"The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the "nature" of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely.[2]"

"[2] See Palmer v Hoffman, 318 U.S. 109; 63 S Ct 477; 87 L Ed 645 (1943); McCormick, Evidence (2d ed), § 308."

See also Simpson v Burton, 328 Mich. 557; 44 N.W.2d 178 (1950). I do not agree that the preliminary complaint report was properly qualified in this case as a business record under the statute. However, the error was invited by counsel for the same defendant who raises the issue, in that he had earlier in the trial introduced a PCR as a business record. He may not now complain that admission of such reports is improper. See People v Williams, 84 Mich. App. 226; 269 N.W.2d 535 (1978).

In addition, I am of the opinion that defendants Miller and Davis were subjected to double punishment by being convicted of both felony murder and the underlying felony of armed robbery of the murder victim. I would sua sponte reverse their convictions for the robbery of the deceased, People v Anderson, 62 Mich. App. 475; 233 N.W.2d 620 (1975), People v Longuemire, 77 Mich. App. 17; 257 N.W.2d 273 (1977), People v Robert G Thompson, 81 Mich. App. 348; 265 N.W.2d 632 (1978), lv gtd 402 Mich. 938 (1978), People v Wilder, 82 Mich. App. 358; 266 N.W.2d 847 (1978). See also Harris v Oklahoma, 433 U.S. 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977).

Finally, I would remand for a hearing on the issue of juror misconduct. According to statements made by counsel for defendant Ewing and by Ewing's father, two jurors had been overheard by Ewing's mother discussing the case. At the time the alleged discussion took place, all the evidence had been presented and closing arguments had been completed. However, the jury had not yet received the court's instructions on the law. Defendant Ewing's counsel apparently was not immediately informed of the incident. After the jury had been instructed on the law, but before they began their deliberations, counsel for defendant Ewing informed the court that he had just learned that two jurors had been overheard by his client's mother discussing the case in the hall during the lunch break. Mrs. Ewing thereupon collapsed and was taken to the hospital, after informing her husband of the overheard conversation. Upon being informed of these allegations, the court ordered Mr. Ewing sworn and an inquiry held into the possible misconduct. Mr. Ewing testified that he did not hear the alleged conversation, and was prevented from testifying regarding his wife's statements about what she heard by the prosecutor's hearsay objection. Counsel then asked the court to adjourn until the following morning, in the hope that Mrs. Ewing would be sufficiently recovered to testify to what she overheard. The court refused, and ordered the jury to begin deliberations.

The Supreme Court in People v Hunter, 370 Mich. 262; 121 N.W.2d 442 (1963), held that it was reversible error for the trial court to instruct the jury that they could discuss the testimony during the trial, so long as they did not arrive at a verdict. The Court quoted at length from Winebrenner v United States, 147 F.2d 322, 327-328 (CA 8, 1945), in which the United States Court of Appeals discussed the reasons jurors are not to discuss a case before it is submitted to them upon proper instructions:

"[J]urors are unschooled and inexperienced as to their duties in a criminal case, and they are not instructed as to those duties until all the evidence has been received, except as the court may in his admonition give them advice on their functions and how they are to be performed, and particularly as to how they should demean themselves; hence, the importance of this admonition. Without admonition their course is uncharted. Thus, it is not until the final submission of the case that the jurors are told that a defendant is under the law presumed to be innocent and not guilty and that that presumption attends him throughout the trial, so that it is incumbent upon the Government to prove the guilt of the defendant beyond a reasonable doubt. These instructions are deemed of vital importance as fixing the standards to be followed by the jury in determining the guilt or innocence of a defendant. If, however, the jurors may discuss the case among themselves, either in groups of less than the entire jury, or with the entire jury, they are giving premature consideration to the evidence. By due process of law is meant `a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.' The jury should not discuss the case among themselves because, first, they have not heard all of the evidence; second, they have not heard the instructions of the court as to how this evidence is to be considered by them, and neither have they heard the arguments of counsel."

In People v Blondia, 69 Mich. App. 554; 245 N.W.2d 130 (1976), this Court reversed for an instruction similar to that in Hunter, supra, on the assumption that jurors who had been invited to discuss the testimony during trial in fact did so. Accord, People v Monroe, 85 Mich. App. 110; 270 N.W.2d 655 (1978). In the case at bar the prejudice is even more obvious, for the jurors allegedly did discuss the case during trial, despite repeated instructions by the trial court not to do so.

I am of the opinion that the trial court should have continued the matter until the following day in order to facilitate a full investigation into the allegations of juror misconduct. Had Mrs. Ewing continued unavailable, the jurors themselves could have been questioned about the incident, People v Bergin, 16 Mich. App. 443; 168 N.W.2d 459 (1969), People v Markham, 19 Mich. App. 616; 173 N.W.2d 307 (1969). I would remand to the trial court for the purpose of taking Mrs. Ewing's testimony on the matter. If she is unavailable, the jurors should be summoned and questioned. If after a full investigation the trial court finds no misconduct, defendants' convictions may be considered affirmed by this Court. If the trial court finds prejudicial misconduct, defendants are entitled to a new trial.