PEOPLE v DIETRICH PEOPLE v COLE
Docket Nos. 19792, 23417
Court of Appeals of Michigan
Submitted June 7, 1978. Decided November 27, 1978.
87 Mich. App. 116
Leave to appeal applied for.
1. The trial judge‘s findings that the witnesses were not aware of the rewards until after defendant Dietrich‘s trial and, therefore, did not testify with an expectation of consideration were not clearly erroneous.
2. The prosecutоr in Dietrich‘s trial was not under a duty to
3. Testimony regarding a conversation between the defendants and a third party the morning after the robbery was admissible as an adoptive admission by defendant Dietrich since he adopted and assented to Cole‘s statements during the conversation and denied or corrected those portions of Cole‘s statements which he thought were untrue.
4. The prosecutor‘s attempt to introduce a statement into evidence made by defendant Dietrich in which he admitted his involvement in another robbery was harmless error where Dietrich‘s objection to the introduction of this evidence at trial was sustained, Dietrich did not request a special curative instruction or make a motion for a mistrial, and the jury was instructed to consider only the evidence produced in court.
5. The triаl court did not err reversibly in denying Dietrich‘s motion to exclude his prior convictions from being admitted into evidence since the record indicates that the judge had sufficient information to properly exercise his discretion.
6. Any error in admitting evidence of Dietrich‘s prior arrest without proof of a conviction was not reversible error since the admission of such evidence was the result of the defendant‘s unresponsive answer to a proper question by the prosecutor, there is no indication that the prosecutor was deliberately attempting to interject inadmissible evidence, and the defendant did not object at trial to the admission of this testimony.
7. Second-degree murder is a necessarily lesser included offense of felony-murder.
8. An instruction on a necessarily lesser included offense must be given upon request. The Supreme Court holding providing this precedent is extended to apply in these casеs since the issue was preserved by a proper and timely request for an instruction on second-degree murder and the judgment of conviction is pending on an appeal as of right.
9. The retrial of defendant Dietrich is not required, although the trial court failed to give the requested instruction on the necessarily included offense of second-degree murder. Instead, the case is remanded for entry of a judgment of conviction of the lesser included offense of second-degree murder and for resentencing, or, upon motion of the prosecutor prior to resentencing the judgment of conviction of second-degree murder should be vacated and a new trial on the felony-murder charge granted.
10. The prosecutor did not commit reversible error by failing
11. The prosecutor‘s reference in his closing argument to defendant Cole‘s failure to question some of the witnesses who were present at the trial about some of the factual issues in the case did not impermissibly shift the burden of proof onto the defendant since the jury was properly instructed on the burden of proof and the statement was not directed at defendant‘s refusal to testify but rather to facts that could have been within the knowledge of persons other than the defendant.
12. The trial court did not err in allowing testimony regarding defendant Cole‘s use of an alias into evidence for impeachment purposes since such evidence was highly probative of the defendant‘s credibility and not highly inflammatory or prejudicial to the defendant.
13. The trial court properly denied defendant Cole‘s request for an instruction requiring the jury to find that the defendant had an actual intention of killing the victim of his robbery in order to convict him of first-degree felony-murder; felony-murder does not require an actual intention to kill the victim, rather, malice aforethought is all that is required.
14. The trial court erred by instructing the jury to find defendant Cole guilty of felony-murder if the killing of the victim occurred during the commission of a robbery, since such instruction took the issue of malice aforethought from the jury. Therefore, defendant Cole‘s felony-murder conviction should be reversed and the case remanded for entry of a judgment of conviction of the lesser included offense of manslaughter and resentencing, or, upon motion of the prosecutor prior to rеsentencing the judgment of conviction of manslaughter should be vacated and a new trial on the felony-murder charge granted.
15. It is reversible error for a court to inquire into the numerical division among the jurors, but it is not error for a trial judge to have his clerk inquire into whether the jury thought they might agree on a verdict before the day was over in order to properly supervise his docket and make any required arrangements.
16. It was harmless error where the jury foreman voluntarily
Reversed and remanded for further proceedings.
V. J. BRENNAN, J., concurred in the reversal of defendants’ convictions for first-degree felony-murder and the remand for entry of convictions for lesser homicide offenses since the trial court refused a proper and timely request for an instruction on the necessarily lesser included offense of second-degree murder, but he would specifically limit application of the Supreme Court case providing precedent for such action to cases, like this one, which were in the process of appeal on the date of the precedent setting opinion. He would dissent from that part of the majority‘s opinion holding the trial court‘s instruction that if the killing was found to have occurred during a robbery then the defendant could be found guilty of felony-murder eliminated the element of malice from the jury‘s consideration, since the element of malice sufficient to elevate the killing to felony-murder is established by a finding that the killing occurred in the perpetration of one of the enumerated felonies. He would reduce the convictions to second-degree murder in both cases.
REFERENCES FOR POINTS IN HEADNOTES
[1, 12] 81 Am Jur 2d, Witnesses §§ 23, 25, 27, 551, 554.
[2] 63 Am Jur 2d, Prosecuting Attorneys § 27.
[3] 29 Am Jur 2d, Evidence § 661.
[4] 29 Am Jur 2d, Evidence § 699.
[5] 29 Am Jur 2d, Evidence § 320.
[6] 29 Am Jur 2d, Evidence §§ 321, 333.
[7] 81 Am Jur 2d, Witnesses §§ 581, 582.
[8] 40 Am Jur 2d, Homicide §§ 559, 560.
[9] 40 Am Jur 2d, Homicide §§ 44-46.
[10, 18] 75 Am Jur 2d, Trial §§ 876, 877.
[11, 16] 40 Am Jur 2d, Homicide § 525.
[13] 75 Am Jur 2d, Trial §§ 754-757.
[14] 81 Am Jur 2d, Witnesses §§ 523-526.
[15] 40 Am Jur 2d, Homicide §§ 45, 50, 51, 269.
[17] 75 Am Jur 2d, Trial §§ 1000, 1004, 1058.
[19] 40 Am Jur 2d, Homicide §§ 45, 46, 269.
OPINION OF THE COURT
1. WITNESSES — CRIMINAL LAW — MONETARY REWARDS — APPEAL AND ERROR — REASONABLE DOUBTS — EXPECTATION OF CONSIDERATION.
A trial judge‘s finding that witnesses at a defendant‘s trial were not aware until after the trial of the fact that monetary rewards were to be given and, therefore, did not testify with an expectation of consideration, was not clearly erroneous and, therefore, will not be set aside where none of the witnesses knew of the rewards before testifying and thus the prosecutor was not under a duty to disclose such information, where the omitted information, if introduced, would not have raised a reasonable doubt about the defendant‘s guilt, and where it was not a case in which it would be atypical for a witness nоt to have an expectation of consideration for his cooperation.
A prosecutor is obligated to present the trier of fact with incriminating evidence against the defendant and any material evidence exculpating the defendant; this duty to disclose also extends to material impeaching information.
3. CRIMINAL LAW — EVIDENCE — ADOPTIVE ADMISSIONS.
The use of adoptive admissions in criminal cases is not favored, however, adoptive admissions are admissible when it clearly appears that the defendant understood and unambiguously assented to the statement made.
4. WITNESSES — CRIMINAL LAW — ADOPTIVE ADMISSIONS — SILENCE.
Testimony by a witness regarding a conversation which took place between herself and co-defendants the morning after the crime charged was admissible as an adoptive admission at the trial of one of the co-defendants where that co-defendant was not silent during the conversation, corrected statements made by his co-defendant which hе thought were incorrect and the facts support a conclusion that the defendant adopted and/or acquiesced in the statements.
5. CRIMINAL LAW — EVIDENCE — OTHER OFFENSES — ADMISSIBILITY.
Evidence which shows or tends to show that the accused has committed another offense wholly independent of and unconnected with that offense for which he is on trial is generally irrelevant and inadmissible.
6. APPEAL AND ERROR — EVIDENCE — HOMICIDE — FELONY-MURDER — COURT‘S DISCRETION — ABUSE OF DISCRETION.
The Court of Appeals will not make a finding that a trial judge abused his discretion in denying a defendant‘s motion to have his prior convictions excluded from evidence in a trial for felony-murder where it is shown that the judge had sufficient information concerning the defendant‘s criminal record to effectively exercise his discretion.
7. CRIMINAL LAW — IMPEACHMENT — MISDEMEANOR CONVICTIONS — MUNICIPAL ORDINANCE CONVICTIONS.
It is reversible error to impeach a criminal defendant with misdemeanor and municipal ordinance convictions.
8. APPEAL AND ERROR — HOMICIDE — FELONY-MURDER — EVIDENCE — PRIOR ARRESTS.
A trial court did not commit reversible error, in a trial for felony-
9. CRIMINAL LAW — HOMICIDE — SECOND-DEGREE MURDER — FELONY-MURDER — LESSER INCLUDED OFFENSES.
Second-degree murder is a necessarily lesser included offense of felony-murder.
10. CRIMINAL LAW — TRIAL — LESSER INCLUDED OFFENSES — INSTRUCTIONS — REQUESTED INSTRUCTIONS.
An instruction on a necessarily lesser included offense must be given in a criminal trial when requested.
11. HOMICIDE — FIRST-DEGREE MURDER — FELONY-MURDER — INSTRUCTIONS TO JURY.
A conviction for first-degree felony-murder should be reversed and the case remanded for entry of a judgment of conviction of second-degree murder, or, upon motion of the prosecutor, a new trial for felony-murder, where the trial court refused a proper and timely request to instruct the jury on the lesser necessarily included offense of second-degree murder and where the issue was preserved by such a request.
12. WITNESSES — CRIMINAL LAW — MONETARY REWARDS — FALSE TESTIMONY — PROSECUTOR‘S DUTY TO DISCLOSE.
The fact that a monetary reward was offered and paid to some witnesses who testified at the earlier trial of one accomplice would not, absent evidence to the contrary, motivate that same witness, or another witness, to give false testimony at the trial of another accomplice; reversible error does not result where a prosecutor failed to disclose this information to the jury and where there is no indication that these past rewards would have motivated any of the witnesses to give false testimony.
13. TRIAL — BURDEN OF PROOF — SHIFTING BURDEN.
A prosecutor did not impermissibly shift the burden of proof onto the defendant by referring, in his closing argument, to the defendant‘s failure to question some of the witnesses who were prеsent at trial about some of the factual issues of the case
14. WITNESSES — CRIMINAL LAW — DEFENDANT‘S CREDIBILITY — IMPEACHMENT — DEFENDANT‘S USE OF AN ALIAS — CREDIBILITY.
A defendant‘s credibility can be impeached by introducing evidence of his use of aliases where the introduction of the defendant‘s use of aliases into evidence is not highly inflammatory or prejudicial to the defendant; a witness‘s use of an alias is highly probative of the witness‘s credibility.
15. HOMICIDE — FELONY-MURDER — MALICE AFORETHOUGHT.
Felony-murder does not require that the defendant have an actual intention to kill the victim; malice aforethought is all that is required.
16. HOMICIDE — FIRST-DEGREE MURDER — FELONY-MURDER — INSTRUCTIONS TO JURY — MANSLAUGHTER — RESENTENCING — NEW TRIALS — MALICE — APPEAL AND ERROR.
A defendant‘s conviction of first-degree murder under a felony-murder theory should be reversed, and the matter remanded for entry of a judgment of conviction of the lesser included offense of mаnslaughter and for resentencing, or, upon motion of the prosecutor, a new trial for felony-murder, where the trial judge, in his instructions to the jury, erroneously removed the essential element of malice from the jury‘s consideration.
17. TRIAL — PREJUDICE — DISCLOSURE — NUMERICAL DIVISION OF JURORS — HARMLESS ERROR — HOMICIDE — FELONY-MURDER.
The disclosure of the numerical division among the jurors to a trial court may create the possibility of prejudice; however, such a disclosure was harmless error, in a trial for felony-murder, where the trial judge had his court clerk inquire of the jury whether they thought that they might agree on a verdict before the day was over and the jury foreman voluntarily told the clerk the numerical division but not which way the majority and minority were leaning, where the clerk did not interject extraneous or prejudicial matter into his conversation, and where there is no reasonable possibility that the disclosure of this information to the clerk aided in convincing even one undecided juror of defendant‘s guilt beyond a reasonable doubt.
18. TRIAL — JURY INSTRUCTIONS — REQUEST FOR INSTRUCTION — PRECEDENT — RETROACTIVE APPLICATION.
The Supreme Court has held that an instruction on a necessarily lesser included offense must be given upon request; however, the Supreme Court precedent to this effect has retroactive application only to those cases which were in the process of appeal on the date of the Supreme Court‘s holding.
19. CRIMINAL LAW — JURY INSTRUCTIONS — HOMICIDE — FELONY-MURDER — APPEAL AND ERROR — MALICE — ROBBERY — ENUMERATED FELONIES.
A trial judge‘s instructions to the jury, in a trial for first-degree felony-murder, were not erroneous and did not eliminate the element of malice from the jury‘s consideration where he instructed that if the killing was found to have occurred during a robbery the defendant could be found guilty of felony-murder; the element of malice sufficient to elevate the killing to felony-murder is established by a finding that the killing occurred in the perpetration of one of the enumerated felonies.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.
Loeks, Buth, Wood & Weidaw, for defendants.
Before: DANHOF, C.J., and V. J. BRENNAN and R. H. CAMPBELL,* JJ.
DANHOF, C.J. These two felony-murder cases arose out of an armed robbery. On October 18, 1972, defendants allegedly robbed a pharmacy and during the perpetration of that robbery shot and killed the pharmacist, Dr. Werra. On October 4, 1973, after a jury trial, defendant Dietrich was found guilty of first-degree murder,
Early the next morning, defendants had a conversation with Ms. Ellis in which defendant Cole explicitly admitted his participation in the robbery and defendant Dietrich implicated himself in the robbery by correcting some of Cole‘s misstatements concerning the events that took place during the robbery. Later that day, these individuals left in an automobile for Kentucky. On the way, Dietrich,
These cases were consolidated on appeal because they raised one common issue and were both remanded back to the trial court for an evidentiary hearing on this issue. However, except for this one common issue, these cases raise different issues. For this reason and because defendants were tried separately, this opinion will discuss the issues raised by each defendant separately.
THE DIETRICH TRIAL
After trial, defendant‘s attorney learned that some of the prosecution‘s witnesses received monetary rewards from various organizations, such as Silent Observer and the Kent County Pharmaceutical Association (KCPA), in connection with this case. Defendant contends that the prosecutor knew or should have known of these rewards or at least of the possibility of them, because of the cooperation between the prosecutor, the police, and these organizations. The prosecutor did not disclose any information relating to these rewards either to the defendant before trial or to the jury at trial. Defendant claims that the failure to disclose this material information pertaining to the credibility of these witnesses requires reversal, see United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976), Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), People v Mata (On Remand), 80 Mich App 204; 263
As mеntioned before, on appeal this case was remanded for an evidentiary hearing on this issue. At that hearing, a witness connected with the Silent Observer Program testified that he did not contact any of the witnesses in defendant‘s trial either before or during trial. He testified that a reward was paid to Roger Mollema but that he was not contacted about it until November 16, 1973. Another witness testified that she received an award from a veteran‘s club in which the victim was a member but that she was not contacted about this until after trial. Also, she testified that prior to trial she had no expectation of receiving a reward. A police detective testified that he was aware that rewards were paid by the KCPA on March 6, 1974, but that he did not become aware of these rewards until after trial. A newspaper article, dated October 20, 1972, was introduced into evidence and it stated that a $500 reward was being offered by the KCPA for information leading to the arrest of the defendants. After the hearing, the trial judge denied defendant‘s motion for a new trial since he found that none of the witnesses were offered rewards until after trial. This finding will not be set aside unless it is clearly erroneous,
Defendant‘s argument is premised on the basis that the prosecutor has the duty to protect the interests of all citizens and to seek justice, not just convictions, Hurd v People, 25 Mich 405 (1872), People v Nettles, supra. The prosecutor is obligated to present the trier of fact not only with incriminating evidence against the defendant but also with any material evidence exculpating the defendant. This duty to disclose also extends to
The general standard for materiality in this context is set out in United States v Agurs, supra, at 112-113.
“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence crеates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” (Footnotes omitted.)
Almost all the impeaching evidence cases cited by defendant involve a promise or expectation of leniency for an accomplice and/or addict informer, see People v Atkins, supra, People v Mata, supra, People v Nettles, supra. Defendant argues that the only difference between these addict/accomplice-informer cases and this monetary reward case is the degree and kind of benefit conferred upon thе witness in exchange for the testimony. Defendant claims that this difference does not justify the prosecutor‘s failure to disclose and that this information should have been presented to the trier of fact to be considered together with all the other evidence.
Although defendant‘s arguments are not unreasonable, there are other factual differences in this case which distinguish it from cases in which
Thе possibility of receiving a monetary reward would influence and motivate a witness to give false testimony only if the witness was aware of the possibility of a reward. In this case, there is no evidence that any of the witnesses were aware, before trial, of the possibility of a reward. Furthermore, this is not a case in which it would be atypical for a witness to not have an expectation of consideration for his cooperation, cf. People v Atkins, supra. These witnesses are not addict informers, accomplices or co-conspirators. In United States v Washington, 550 F2d 320 (CA 5, 1977), the Court even questioned whether this type of monetary reward offer was the type of “exculpatory evidence” contemplated by Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
After a review of the record, we conclude that the trial judge‘s findings that the witnesses were not aware of the reward until after trial and did not testify with an expectation of consideration were not clearly erroneous. Since nоne of the witnesses knew of these rewards before testifying, the prosecutor was not under a duty to disclose this information concerning these future possibilities, see People v Atkins, supra, at 174. Further-
The second issue raised by defendant concerns the admission into evidence of testimony by Ms. Ellis about a conversation which took place between Dietrich, Cole and herself on the morning after the robbery. Ms. Ellis testified that Dietrich and Cole came into her room around 9:30 a.m. and she also testified as follows:
“Q. What were you referring to?
“A. I was referring to the shooting the night before.
“Q. What, if anything, was said after you said that?
“A. Terry Cole said he was the one that shot the man.
“Q. Terry said he shot the man?
“A. Yes. He said, ‘I shot the man.’
“Q. All right, please continue.
“A. And I asked him, ‘Why?’ Terry said they were just robbing him. And then he went into detail about how he went into the store and went behind the counter and the man was sitting on a chair behind the counter, or a wall — I don‘t remember exactly what he said, but he said the man was sitting behind а counter, I believe, and he went in and the man came after him. He said that he turned around, shot the gun, and then he turned to run. And he couldn‘t remember whether the gun went off or not. So he turned around, looked again when he got to the door, and the man was right there, so he shot it again. And I believe he said that he had only shot it once, and that is when Skippy said, ‘No, you shot him twice.‘”
If defendant had been silent when Cole made these statements, then this evidence would not be admissible as an аdoptive admission, see Bobo, supra, Bigge, supra. However, the defendant was not silent, but rather, he corrected those statements made by Cole which he thought were incorrect. The circumstances surrounding this conversation and the defendant‘s statements in response to Cole‘s statements distinguish this case from the holding and rule announced in Bobo, supra.1
Even though the introduction of this testimony does not infringe on defendant‘s right to remain
The third issue raised by defendant concerns the prosecutor‘s attempt to introduce into evidence a statement made by defendant in which he admitted his involvement in another robbery. Evidence which shows or tends to show that the accused has committed another offense wholly independent of and unconnected with that offense for which he is on trial is generаlly irrelevant and inadmissible, People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). The prosecutor argues that this evidence
Although the prosecutor should have anticipated this testimony in response to this question, we do not think the error in this case was so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless, see People v Adan, 83 Mich App 326; 268 NW2d 397 (1978), People v Wilkins, 82 Mich App 260; 266 NW2d 781(1978), People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), since the trial judge excluded this testimony from evidence, see People v Willie Lee Lewis, 31 Mich App 433; 188 NW2d 107 (1971), People v Farley, 13 Mich App 132; 163 NW2d 692 (1968), and the prosecutor did not attempt to continue this line of questioning or mеntion this testimony in his closing argument. Furthermore, considering the other evidence against defendant, any error in this case was harmless beyond a reasonable doubt, see Swan, supra. This testimony was excluded from evidence by the trial judge. Also, although no curative instruction was requested or given, the jury was instructed to consider only the evidence produced in court.
Defendant also raises two issues which relate to the prosecutor‘s use of defendant‘s prior convictions to impeach his credibility. At the beginning of the trial, defendant made a motion to exclude
In a related issue, defendant claims that reversible error occurred when the prosecutor cross-examined the defendant about his arrest for drunk and disorderly conduct. Defendant on direct examination admitted that he had been convicted of breaking and entering. On cross-examination, the prosecutor asked defendant, “You mentioned arrest and conviction in Florida. Were you ever arrested and convicted for anything else?” Defendant answered, “I was arrested in Kentucky for some drunk and disorderly conduct“. Defendant did not object, at trial, to the admission of this evidence. On appeal, defendant argues that the admission of this testimony requires reversal because the offense was only a misdemeanor which
In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court held that it was reversible error to impeach a defendant with misdemeanor and municipal ordinance convictions, but that case was not decided until after the trial in this case. Renno, supra, does not apply retroactively to this case because Dietrich had already acknowledged his prior felony conviction on direct examination and becаuse he did not fully preserve this issue by objecting at trial, People v Sanders, 394 Mich 439; 231 NW2d 639 (1975).
Defendant also claims that it was reversible error to admit this evidence of defendant‘s arrest without proof of a conviction, see People v Falkner, 389 Mich 682; 209 NW2d 193 (1973), People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973). However, if there was any error in this case, it does not require reversal. First, it should be noted that defendant‘s answer was not responsive to the prosecutor‘s question. The prosecutor asked defendant if he had ever been arrested and convicted of anything else but defendant responded that he was arrested for drunk and disorderly conduct. This unresponsive answer to a proper question does not justify reversal, see People v Tutha, 276 Mich 387; 267 NW 867 (1936), People v Petrov, 75 Mich App 532; 255 NW2d 673 (1977). Also, there is no indication that the prosecutor was deliberately attempting to interject inadmissible evidence into the trial. Defense counsel, at the beginning of trial, mentioned that defendant had two prior convictions. Defendant, on direct examination, acknowledged his conviction fоr breaking and entering. Since he did not mention the misdemeanor conviction, it seems very likely that the prosecu-
Defendant also assigns as error the trial judge‘s failure, upon request, to instruct the jury on the lesser included offense of second-degree murder. The trial judge denied defendant‘s request because he did not think there was sufficient evidence to support a conviction of second-degree murder, see People v Carter, 387 Mich 397; 197 NW2d 57 (1972). At the time of trial, People v Carter, supra, was the controlling Supreme Court case on this issue but since trial, the Supreme Court has decided a number of significant cases concerning this issue, see People v Crawl, 401 Mich 1; 257 NW2d 86 (1977), People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), People v Carter, 395 Mich 434; 236 NW2d 500 (1975), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). In People v Carter, 395 Mich 434; 236 NW2d 500 (1975), the Supreme Court held that second-dеgree murder is a necessarily lesser included offense of felony-murder. In Ora Jones, supra, the Supreme Court held that an instruction on a necessarily lesser included offense must be given upon request. People v Lovett, 396 Mich 101; 238 NW2d 44(1976), and People v Allen, 80 Mich App 786; 265 NW2d 47(1978), apply Ora Jones, supra, retroactively. In People v Crawl, supra, the Supreme Court held that it was error to fail to give an instruction on second-degree murder in a felony-murder case when the defendant had requested one. The con-
THE COLE TRIAL
Defendant Cole also contends that it was reversible error for the prosecutor to fail to disclose the fact that certain witnesses at his trial had been paid monetary rewards. Cole‘s trial did not take place until November, 1974. By this time, defendant Dietrich had already been convicted by a jury and the witnesses who testified at Dietrich‘s trial had already received their monetary rewards. By the time of Cole‘s trial, the prosecutor was aware that the witnesses knew that rewards had been
The primary reason why reversal is not required is that there was no evidence that any of these witnesses had any expectation of another or further rewards for their testimony in this case. The rewards that had been offered were all paid out after Dietrich‘s trial. Presumably, the rewards were offered and paid for either the information that led to these defendants’ arrests or for the testimony given at Dietrich‘s trial. Since all the allotted reward money had been paid out, it seems unlikely that the witnesses expected further rewards for their testimony in Cole‘s trial. Again, this is not a case in which it would be atypical for a witness not to expect consideration in exchange for his testimony, compare, Atkins, supra. There was no evidence that any of the earlier rewards were revocable or that the witnesses feared losing their reward money if they changed their testimоny at Cole‘s trial. In conclusion, in the absence of any evidence to the contrary, we do not think the fact that a monetary reward was offered and paid to some witnesses at an earlier trial of one accomplice would motivate that same witness, or another witness, to give false testimony at the trial of another accomplice. Since there is no indication that these past rewards would motivate any of the witnesses to give false testimony, the prosecutor did not err reversibly by failing to disclose this information to the jury.
Defendant also raises two issues relating to the prosecutor‘s cross-examination of the defendant
Another related issue raised by defendant concerns the prosecutor‘s questioning of defendant about his use of aliases. On cross-examination, the defendant admitted using aliases both before and after the robbery. Although the issue of whether a defendant‘s credibility can be impeached by introducing evidence of his use of aliases is an issue of first impression in Michigan, other jurisdictions have allowed the admission of this evidence for impeachment purposes, see, Bland v State, 42 Ala App 392; 166 So 2d 728 (1964), Fletcher v State, 40 Ariz 388; 12 P2d 284 (1932), Feldman v State, 194 So 2d 48 (Fla App, 1967), State v Waldron, 128 La 559; 54 So 1009 (1911), Commonwealth v Giambrone, 183 Pa Super 283; 130 A2d 254 (1957), State v Sysinger, 25 SD 110; 125 NW 879 (1910), but see People v Fleming, 166 Cal 357; 136 P 291 (1913).
Defendant also claims that the trial judge‘s instructions to the jury were erroneous. Dеfendant requested an instruction which would have required the jury to find that he had an actual intention of killing the pharmacist in order to convict him of first-degree felony-murder. The trial judge properly denied defendant‘s request. Felony-murder does not require that the defendant have an actual intention to kill the victim. Malice aforethought is all that is required, see People v Haack, 396 Mich 367; 240 NW2d 704 (1976), People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), see also
Defendant also claims that the trial judge erred by instructing the jury to find defendant guilty of felony murder if the killing of the pharmacist occurred during the commission of the robbery.
Finally, defendant argues that reversal is required because the court clerk communicаted with the jury during their deliberations and inquired into whether they were anywhere near reaching a verdict. At approximately 4:30 p.m., the trial judge asked the clerk to check on the jury‘s status for the purpose of determining whether to prepare additional arrangements in the event that deliberations carried over to the next day. The court‘s clerk did not ask for the numerical division among the jurors, but the foreman of the jury voluntarily told him this anyway. The jury resumed their deliberations and after approximately 1/2 hour, they returned a verdict of guilty.
In this case, it was not error for the trial judge to have the clerk inquire into whether the jury thought they might agree on a verdict before the day was over. The trial judge did not ask the jury himself. He sent the clerk. The jury had been deliberating since early morning and the hour was growing late. The trial judge expressed his concern over the status of two of the jurors who were pregnant. This minor intrusion into the privacy of the jury‘s dеliberation is justified to permit the trial judge to make any required arrangements and to properly supervise his docket, see People v Luther, 53 Mich App 648; 219 NW2d 812 (1974). Also, there is no evidence that the clerk interjected any extraneous or prejudicial matter into his conversation with the jury foreman. The clerk did not state any opinion, give any instructions or refer to any of the evidence. He merely asked the foreman whether the jury thought they would be able to reach a verdict before the day was over.
The courts in Michigan have recognized that
These cases are reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
R. H. CAMPBELL, J., concurred.
V. J. BRENNAN, J. (concurring in part; dissenting in part). I concur separately as to Dietrich but respectfully dissent as to Cole.
I agree that Ora Jones should be applied retroactively to reduce the defendant‘s conviction to second-degree murder. However, I would specifically point out that the retroactive application of Ora Jones is limited to cases like this one which were in the process of appeal on the date of the Ora Jones opinion. See my dissenting opinion in People v Thurmond, 75 Mich App 310; 254 NW2d 879 (1977).
COLE
The trial court instructed that if the killing was found to have occurred during the robbery then the defendant could be found guilty of felony-murder. The majority holds that this instruction eliminated the element of malice from the jury‘s consideration. The element of malice sufficient to elevate the killing to felony-murder is established by finding that the killing occurred in the perpetration of one of the enumerated felonies. People v Till, 80 Mich App 16, 28-29; 263 NW2d 586 (1977). I would hold the instruction not to be erroneous.
Since defendant Cole also properly raised the lesser included offense issue under Ora Jones, I would reduce the conviction to second-degree murder as was done with defendant Dietrich.