73 Mich. App. 327 | Mich. Ct. App. | 1977
Lead Opinion
On April 30, 1975, defendant was convicted of committing statutory rape, MCLA 750.520; MSA 28.788, which has been repealed. This was the second trial for this offense, the first one resulting in a mistrial. Following sentence, defendant appeals as of right raising two issues for our consideration.
Although the second trial was not a duplicate of the first, many of the witnesses testified at both trials, including one of the two girls alluded to in the dissenting opinion, and the testimony is substantially identical. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967).
Defendant’s second claim of error is that certain testimony concerning the selling of marijuana by defendant and "pot parties” held in defendant’s home resulted in prejudicial error. We are of the opinion that this testimony did not assist any juror in the formation of a guilty verdict. People v Swan, 56 Mich App 22, 33; 223 NW2d 346 (1974), lv den, 395 Mich 810 (1975). In any event, it is clear from the record that the testimony regarding "parties” was brought out by the defense and that the prosecutor merely asked several more permissible questions on re-direct. See People v Wright, 41 Mich App 518; 200 NW2d 362 (1972). The probative value of the testimony was merely part of the res gestae of the crime and was admitted solely to assure the jury that all of the pertinent information and evidence was before the jury so that they could comprehend the entire picture as one continuing operation. People v Nawrocki, 376 Mich 252; 136 NW2d 922 (1965). Although the trial judge should have given a cautionary instruction in his final instructions as to both the "pot parties” and sale of marijuana, one was not requested by the defendant’s counsel. There being no absolute requirement that such a limiting instruction
Affirmed.
Dissenting Opinion
(dissenting). I agree with the majority that the trial judge abused his discretion in denying defendant’s motion to sequester the witnesses. People v Insley, 36 Mich App 593; 194 NW2d 20 (1971). However, I disagree with the majority’s finding of harmless error.
The justifications advanced for holding an abuse of discretion by the trial judge to sequester witnesses to be harmless er or have been that the witnesses involved testified substantially the same at the preliminary examination as they did at trial, People v Williams, 6 Mich App 412; 149 NW2d 245 (1967); or that there was no major dispute among the prosecution’s witnesses concerning the alleged crime, relative to defendant’s behavior. People v Insley, supra.
In the present case the defense was alibi. One of the two key prosecution witnesses, 14-year-old girls, did not testify in the previous trial that was declared a mistrial, nor did both witnesses testify at the preliminary examination. The credibility of these witnesses was the crux of defendant’s case. Although there was no major dispute in the testimony among the prosecution’s witnesses, there were discrepancies. The trial court’s failure to exclude the witnesses created the opportunity, at least arguably, for the witnesses to bolster each other’s testimony. To require a showing by defendant that the failure to sequester the witnesses resulted in such prejudice that the jury would have reached a different result as suggested by
Also, if this case were to be retried I would instruct the trial judge to exclude the references to pot parties and sale of marijuana unless the defendant is charged with and tried for controlled substance violations or contributing to the delinquency of minors.
I would reverse defendant’s conviction.
A panel of this Court has recently addressed this issue also by split decision, People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977).