*1 1985]
PEOPLE v ALLEN (Cаlendar 17). Argued No. No. 71658. June Docket —Decided 10, 1985. Rehearing post, 1205. December denied Saginaw by jury in the Circuit W. Allen was convicted David Court, Gilbert, J., The murder. Robert W. of J., Allen, P.J., Appeals, Bronson, (Wahls, J. curiam, opinion unpublished per dissenting), in an affirmed holding of of a cоfelon’s conviction the admission evidence that error, the error harmless was but that was of same crime 59964). (Docket beyond The defendant doubt No. a reasonable appeals. by by joined Brickley, opinion Justices In an Justice Supreme Court hеld: Riley, Cavanagh, Boyle, an error in for whether standard prior for the same homicide a cofelon’s conviction requires being defendant is tried reversal as that for which a by unfairly prejudiced evidence. whether the defendant case, In this the defendant was not. prosecution permitting the erred in While the trial court homicide, question same the cofelon elicited, erroneously defense counsel after the evidence was thoroughly and the trial court cross-examined promptly cоnviction could be instructed bearing credibility. only upon the witness’ considered addition, repeated trial the instruction. In there was court later guilt. overwhelming independent the defendant’s part. Affirmed in joined dissenting, Williams, Levin, Chief Justice Justice uphold under stated that in order a conviction obtained improperly in which a cofelon’s circumstances he was convicted of the same bolstered tried, the error must be crime for which a defendant was References Points in Headnotes [1, 2d, seq. Am Jur Law 163 et §§ Criminal 2d, Jur 1130. § Am Evidenсe 2d, seq. 27 et Am Jur Homicide §§ disposi- conspirator of one as affected Prosecution or conviction coconspirators. 192. 19 ALR4th case 424 Opinion of the Court found not to have to a fair trial. Court *2 — —
1. Homicide Evidence of Cofelon. Conviction The standard for whether an error prior evidence of a cofelon’s conviction for the same homicide being requires as that for which a defendant was tried reversal unfairly prejudiced by is whether the defendant was the evi- dence.
Dissenting Opiniоn by Williams, C.J. — — — 2. Criminal Law Evidence Conviction of Cofelon Fair Trial. A conviction obtained under circumstances that evidence that a cofelon was convicted of the same crime for which the defen- dant was tried was admitted to bolster the cofеlon’s credibility may upheld be where the error is found not have to to a fair trial. Kelley, Attorney General, Frank J. Louis J. Christopher Boyd, Caruso, General, Solicitor S. Prosecuting Attorney, Gray, and Annette M. Assis- (Patrick Prosecuting Attorney tant Meter, M. For- Prosecuting Attorney, mеr Chief Assistant of coun- sel), people. for the Appellate (by State Defender Peter Jon Van
Hoek) for the defendant.
permitting
J. The trial court erred in
prosecuting
question
attorney to
the cofelon Sali-
nas about
the witness’ conviction оf
murder for the same homicide for which the defen-
Lytal,
dant was on trial. See
v
603;
After the elicited Sali- Opinion op the Court acknowledgment convicted that he had been nas’ thoroughly killing deceased, defense counsel developing fully cross-examined jury had substantial the witness the idea falsely testify the defendant. motive to might have well of the murder conviction leading jury impeached murderer, that, his overall convicted as a believe unworthy Moreover, the of belief. promptly it instructed trial court only might consider witness’ credibility. bearing upon The court the witness’ again repeated at the conclu- once the instruction sion of the evidence. presented jurors addition, were independent the defen-
abundance dant’s charged. guilt That evidence the crime inculpatory statement included Allen’s own persons. occasion, Allen admit- On one three other *3 had hit the victim with to a witness that he ted poured ashtray An- her face. hot water on and that he Allen admitted testified that other witness had victim with gotten he hit the his shoe when blood on together аshtray. evidence, This
the pathologist testimony the cause of that of the with resulting injury in a cere- to the head death was permit the concussion, itself sufficient bral guilty find the defendant felony-murder, Aaron, 672; 299 more, however. Two There was NW2d serologists objection, the
testified, without consistent the shoe was found on defendant’s blood genetic markings type of the the blood and Salinas. One victim, with that of and inconsistent approximately serologists also testified of the population percent have had of the would five markings the victim. same blood in course, true, that Salinas testified It is C.J. detail involvement credibility homicide, im- and his was thereafter peached in Never- the fashion we have described. although provided only eyewit- theless, Salinas testimony murder, of the ness account part by in that of At corroborated other witnesses. least two witnesses testified to a conversation with prior to his arrest in he described Salinas which persons crime, and other verified several that Salinas and Allen were at a fact party descrip- murder. store to the kicking tion of victim’s back was corroborated knife into the further testimony "get up a technician that he had to on a stool and morgue put my table, onto the knee the victim’s back order to the knife.” extract We are satisfied that the evidence of the defen- guilt Ingram dant’s is court error in nas’ murder conviction did not murder of Minnie overwhelming. virtually Consequently, the trial of cofelon Sali-
unfairly prejudice the defendant. judgment of the Court of is af-
firmed. JJ.,
Brickley, agh, Boyle, Riley, Cavan J. concurred with (dissenting). This case involves a ap- determination of the standard of error to be plied improperly when a cofelon’s bolstered that he was convicted of the same crime for which the defendant is now on uphold trial. under suсh order to obtained conviction error must be found circumstances, *4 not to have a fair trial. in Because this case I that standard find Appeals met, not would reverse the Court of decision. History
I. Facts and 4, 1979, Minnie Ingram, February Sunday, On woman, was robbed killed sixty-ninе-year-old in She was beaten Saginaw. in her home back. The vic- in the face and head and stabbed February Monday, discovered on body tim’s 1979. cofelon, defendant, Allen, David and his vicinity seen
Jesse were was arrested the murder. Salinas the house before in a taking part the murder while day on the after Upon entering juveniles. with two breaking murder, gave Salinas questioned about in second Only inconsistent statements. two partici- as a name the defendant specifically did he in crime. pant mur- first-degree
Allen was сonvicted
28.548,
in
der,
750.316;
at a trial
which
MCL
MSA
of the testi-
large part
in
consisted
the evidence
of this
presentation
Prior
to the
mony of Salinas.
moved in lim-
unsuccessfully
had
testimony, Allen
Salinas’ conviction of
ine
suppress
At that
killing.
murder
in the instant
time,
acknowledged
that no deal had been
he
prosecutor
exchange
in
made
he did not
intend to
and stated that
Nonetheless,
during
the trial.
raise
issue
the evidence "admissible
so the
trial court
ruled
can
the full facts on
the credibil-
judging
have
conclusion,
reaching
of Mr. Salinas.”
this
ity
the trial court
relied on the
explicitly
v Lytal,
App
96 Mich
decision in
(1980).
140; decision was
NW2d
That
603;
reversed
this Court.
subsequently
In an
decision issued
unpublished
the decision
Appeals,
reviewing
the Court of
*5
424 Mich Opinion by
Williams, C.J.
Lytal,
this case after our reversal of
had no diffi-
culty deciding
admission of evidence of
However,
conviction was erroneous.
then
reviewed
other evidence
in the case and held that
the error was harmless
beyond
Judge
a reasonable doubt.
dis-
Wahls
arguing
sented,
the other evidence offerеd
sufficiently persuasive
was not
to deem the error
granted
appeal.
harmless. We
leave to
419 Mich
op Lytal
Application
II.
to This Case
Lytal,
this Court stated:
It is an established rule of law that
the convic-
person
of another
involved
the criminal
enterprise is not
sepa-
admissible at defendant’s
prosecutor
rate trial. The
defends the admission of
ground
this evidence on the
that under the rule of
Atkins,
People
163;
v
397 Mich
witness convicted. [415 612.] presents This case an almost identical set prosecutor facts. The was allowed to bolster the credibility ing demonstrat- already guilty
that he had been found leniency no therefore would receive crime and testimony.1 Lytal Error III. of Review fоr Standard to a If an error trial, the conviction. this Court must reverse fair e.g., Smith, 164; 108 See, *6 statutory harmless-error 751 NW2d provision2 responsibility of not eliminate the does reviewing to make this determination. court provision may mollify minor er- statutory be held not to affeсt clearly rors which result, can it must serve it not a cure-all and but It cannot cure an constitutional limitations. within right of due deprives an accused of the error which to . . are constrained hold process of law. . We charge complained deprived of the defen- by free trial of a dant of constitutional 58, 72; [People Bigge, 297 Mich 297 NW jury. (1941).] right to a unable to find that the defendant’s am prejudiced. trial was not
fair
excluding
against Allen,
the testi-
The evidence
support
mony
a
of
was not sufficient
first-degree felоny murder. Four
conviction of
appeal
argues
note that on
the state
that there was considera
We
given
testimony,
he
that his state
for Salinas’
was assured
would not be used
him at
ments at the defendant’s trial
retrial. Even if this were the
without
victed.
case,
of this
could be advised
already
informing
con
the defendant had
been
them that
judgment
new
set aside or reversed or a
"No
or verdict shall be
case,
granted by any
any
criminal
on
trial be
court of this state
improper
ground
rejection
procedure,
the entire
jury,
or
or the
admission
of misdirection of the
evidence,
pleading
any
or
matter of
of
or for error as
court,
opinion
of
after an examination
unless in the
cause,
affirmatively appear
the error com
it
shall
769.26;
miscarriagе
justice.”
plained
28.1096.
MSA
resulted in a
MCL
of has
prison supposedly inmates related statements killing. However, made Allen to them about the these statements contradicted each other on the crucial issue of the defendant’s involvement in the killing. Testimony that Allen and Salinas were point day at some on the of the murder is of little value in what occurred later. juveniles The statement made one of the ar- rested with Salinas that Salinas said his accom- plice killing guy” "was a colored does not identify any dеgree particu- the defendant with larity. piece analysis evidence, The final of a merely shoe, bloodstain on Allen’s showed it to be general type of the same as that of the deceased. provided was crucial. He only eyewitness account of the crime and described in detail the defendant’s involvement and intent during killing. stand, theOn Salinas testified that he and the defendant broke into Minnie Ingram’s house and killed her. He admitted that unconscious, he rendered the victim but stated attempted pil- that Allen to suffocate her ashtray, low, beat her over the head with an *7 knife, stabbed her with a steak and tried to set the house on fire. He further stated that when he tried to remove the back, knife from the victim’s kicked it in farther with the heel of his foot. important,
Because Salinas’ was so credibility key jury’s was a issue determina- guilt. damaged tion of Allen’s His regarding his earlier inconsistent statements Any improper the defendant’s role in the crime. bolstering regarded cannot therefore be as harm- less in this instance. reasons,
For these I am unable to concur with Appeals. agree Judge the Court with I Wahls presented that the other evidence at trial was not C.J. negate any possible preju- overwhelming toas so arising from the error. to the defendant dice therefore reverse would for new trial.
and remand Williams, Levin, J., concurred