*1 368 368 PEOPLE v. GRIFFEN Opinion of the Court Witnesses—Expert -Requested 1. Criminal Law — Wit- Witness — Surveyor. ness — request Denial of surveyor to be furnished to survey charged the area of the homicide to determine dis- tances involved was not reversible error where the trial court city map, furnished defendant pertinent with which contained distances, photographs of the street block where the crime occurred. — — — Requested 2. Criminal Law Witnesses Witness Police Artist. request production Denial of defendant’s for the of an FBI composite artist who police had made a for a sketch “wanted” circular of a man saw witnesses at the scene of the crime charged was not error where the in Washington, artist was C.,D. at trial, the time of defendant’s the sketch was not evidence, eyewitnesses introduced into and two testified that the sketch did they not resemble the man saw. Jury Judge’s Criminal 3. Law —Instructions — Comments —Un- disputed Facts. judge’s Trial comment, during charge, that he did not believe difficulty would arriving have much in at the con- clusion that a felonious homicide had been committed and second-degree homicide improper, murder was but not reversible error where the fact homicide had been disputed committed was not at trial and the defendant’s defense was that he did not commit the crime. References Points Headnotes .1, 2d, Am Jur 2] Criminal Law 348. § Jur, 53 53 Am seq. Am Trial Trial et 3] 584§ 937§ Jur, seq. et '4] 2d, 21 Am Jur 5] Criminal Law 310. § Jur, 58 Am seq. '6] Witnesses 620 et § Jur, Am seq. Trial 480 et 7] 8] § Jur, Am seq. Trial et 469§ v. G-riffen Reading Reading. Testimony Requested Law — Criminal 4. — Permitting portions prosecution of a witness’s direct examination relating testimony, to defendant’s statements made the wit- county jail they together, were to be read back ness while *2 jury reading that the without also witness’s cross-examina- to testimony was error not reversible where there no direct tion testimony between the on direct and cross- conflict witness’s requested only jury examination and the had be read to portions back. those that were read Propria Proceeding Request 5. Criminal Law — to Persona — Counsel. Dismiss persona right propria proceed to Defendant not denied his judge granted request where the trial defendant’s to dismiss assigned who, judge’s request, counsel the remained at to defendant, help needed, if and voi/r counsel did conduct the jury dire and examination of the cross-examined some wit- nesses. by Levin, Witnesses—Credibility—Irrelevant
6. Criminal Law — Issues— Other Crimes. although prosecutor, allowed much latitude in cross-examin- ing bring credibility, to test independent cannot out issues involving alleged entirely other crimes are dissimilar both nothing in nature and motive have to do with whatsoever the issue involved. Argument Improper Argument. 7. Criminal Law —Prosecutor’s — introducing into .Prosecutor’s trial murder and defendant’s for arguing jury register to the the to the defendant’s failure for draft, employment record, alleged defendant’s defendant’s operation pig, alleged ownership blind of of handguns, testimony prosecution the witness that de- of something had witness, done formerly to the had who fendant worked as a defendant, prosecutor’s asking barmaid and the having counsel in why, the been defense front of after prosecution given allowed to read the statement the had witness police her, about what to done he had defendant concerning allegedly cross-examined her what was done to permissible her exceeded the bounds cross-examination of argument; the victim meritorious issue who killed of may well against have been because resolved defendant jury was the real temperate consideration of deflected from op Opinion the Court irrelevant, inflammatory issue introduction testi- mony. Argument Improper Argument. 8. Criminal Law —Prosecutor’s — challenging presence Prosecutor’s counsel in the defense why explain in a murder trial there had been no cross- concerning prosecution examination witness’s gone police given she had once and had them a state- her, though ment what about had done to even defendant counsel had been allowed to read the statement was defense impermissible challenge presence as a in the the trier right. legal to waive a fact Appeal from Recorder’s Court of Detroit, Cornel- September ius J. Sullivan, J. Submitted Division (Docket 9363.) 9, 1971, at Detroit. No. Decided October 19, 1971.
Leon Maurice convicted of Griffen was second- degree appeals. murder. Affirmed. Defendant *3 Kelley, Attorney
Frcmk J. Robert A. General, Derengoski, L. Cabalan, Solicitor William General, Prosecuting Attorney, Dominick R. Carnovale, Appellate Angelo Department, Chief, and A. Pen- Prosecuting Attorney, tolino, Assistant for people. appeal.
Armand D. Rove, for defendant on J., P. J.Y. Before: Levin, Quinn and JJ. Brennan, by jury J. Convicted of murder
Quinn, degree, § (Stat second MCLA 750.317 Ann 1954Rev 28.549), § appeals. defendant was sentenced and he alleged
Two of appellate errors relied on for relief were not namely: saved for review, claimed charge error in the of the court to the and the v. Griffen op Opinion the Court process pretrial identification viti- claim identification. in-court ated the request expert for at trial witnesses Defendant’s and this denial is asserted as reversible denied requested Defendant that be furnished a error. he survey surveyor the area of the crime order to judge The trial determine distances involved. fur- survey map with a of the nished defendant block in question pertinent which contained distances and photographs of the find street. no We reversible request error in the denial of surveyor. for a composite An for FBI artist made a sketch police requested for a “wanted” circular. Defendant production of the at artist trial. The artist inwas Washington, judge D. atC., and the trial time, request. denied the The sketch was not introduced eyewitnesses in evidence and two indicated that the they sketch did not resemble the man saw. Defend- denying request ant’s claim of reversible error in his production the artist is not sustained record.
During charge jury, judge to the the trial said: may say “I I going don’t believe this is difficulty to have arriving much at the conclusion felonious homicide was and that committed, second-degree homicide was murder.” improper, The comment was if the fact that a disputed, homicide had been committed had been it require would *4 Wichman reversal, App 15 Mich 110. However, fact a homicide disputed had been committed was not at trial. The contest was over did who it and defense was that he did not it. If do the comment was error, it was not reversible error. by Levin, P. J. requested jury
During deliberations, its Copeland’s testimony relating portions of witness Copeland to made the defendant statements county jail read back to them. This was done be Copeland’s objected cross- because and defendant judge trial The over- read. examination was objection contends this was and defendant ruled requested jury read; error. What reversible Copeland’s conflict between direct there was no testimony direct and on cross-examination. reading and the back to extent People v. thereof is a matter of Shuler discretion, record 136 Mich 167. This does not establish that discretion. abuse of requested assigned
Defendant that his counsel be request granted dismissed. This but at the judge’s request, help counsel remained to defendant, if needed. Counsel conducted the voir dire exam- ination of the and cross-examined some wit- nesses. Defendant’s claim of reversible error because right proceed he propria per- was denied his sona is not sustained on this record.
Finally, defendant’s contention that he was denied a fair trial is not sustained on this record. Most of the turmoil, chaos, and confusion relied on to support this claim was created defendant.
Affirmed.
V. J. J., Brennan, concurred. (dissenting). Levin, The defendant, Leon Maurice Griffen, milk murdering was convicted of truck driver.
A number of running witnesses a man saw from the scene of the crime. At the trial none of the *5 People v. Grifeen by Levin, Dissent P. J. identify gunman conld Griffen witnesses as Haynes. except she She testified that saw Clare a gunman’s “a full face for second or half view of a he ran from second” as her home about feet standing, she was that Griffen was that man. shooting February occurred 7, on 1968. January months
Eleven on later, Clare 17, 1969, Haynes lineup. descrip- identified ain Her Griffen gunman tion of eye- matched that of the other except witnesses that some of the witnesses said gunman goatee had a Haynes and Clare did seeing goatee. remember a April Three after was arrested, months Griffen on Copeland 1969, Robert arrested for 11, was another the murder crime, beer truck driver. At Grif- Copeland fen’s testified that trial, Griffen had told Copeland that he had killed milk truck driver. August Copeland gave
Before the on trial, 8,1969, prosecutor implicating Stanley a statement killing. Mitchell in the beer truck driver The murder charge against Copeland was dismissed later that Cooper month. On November 1, 1969, Oscar also killing. arrested for the beer truck driver It awas few weeks 19, November later, 1969, Copeland gave first im- statement plicating Griffen the murder of the milk truck driver. Copeland
At Griffen’s trial testified at a party in October, before either Griffen 1968, or Copeland subsequently, had been arrested, April they after both been had arrested and they while county jail, were in the Griffen told him that he had killed the milk truck driver. Levin,
Copeland Griffen said that he testified that shot spur milk of the moment on the be- truck driver just leaving apart- him an cause the seen driver supposed who ment where he had killed woman testify against That one Griffin’s relatives. story with the was inconsistent James *6 gunman alighted that the Moore, who said from an put gloves and automobile, then walked over to on, the milk truck and shot the driver. It also in- police testimony consistent with the aof officerwho police said any were not able to discover shooting day other on the in same area the milk truck driver was killed.
Griffen took the stand and denied that he com- mitted the crime. He said that he was unable account for his at the Whereabouts time the crime was committed because he was not arrested until year almost a day later and he had no recollection of the killing occurred. previously When testified he had not Griffen been committing by convicted of He crime. was asked prosecutor, lawyer’s objection, over his whether army. he had ever been in the He admitted that he army had not been in the and later admitted registered he had not for the draft. prosecutor assiduously
The also cross-examined concerning employment Griffen his record and whether Gloria Jackson had ever for him. worked people
Gloria Jackson was called as a re- buttal witness. She testified that she had worked speakeasy oper- Griffen ated in his aas at a barmaid that he apartment, that Griffen owned two hand- guns,1 gone and police she had on the encouragement report of a Father Ward to what the defendant “done to me”. What had Griffen concurring See part Hall dissenting part.) (Levin, J., v. Griffen Levin, upon. to her elaborated
“done” was not Father operated halfway to which house Gloria Ward paroled Jackson had been after she left the Adrian Training School. Girls prosecutor argument
During’ stressed gone had that she to the Jackson’s Gloria police suggestion of Father that she at the Ward, given police a statement and had defense counsel given opportunity been an to read the statement reading and after it he had decided to cross- regarding examine her contents her state- you [defense why ment: “I counsel] ask didn’t spending reading cross-examine after minutes five that statement?” The also asked the credibility to consider “the of a man who register “employment doesn’t for the draft” and his of Gloria Jackson”. questions argument prosecutor’s mani-
festly permissible exceeded bounds. *7 capital trial for a was on offense. The
Griffen issue to be decided the whether he gunman people’s killed milk the who the driver. Haynes, only case was far from conclusive. Clare identify gunman, witness who claimed could she conceded that she full view of his face seen for not more than a second. The details Robert of Copeland’s testimony that Griffen had admitted committing the crime were inconsistent with estab- Copeland possible lished facts; moreover, had a fabricating testimony. motive for his may The meritorious issue well have been resolved against Griffen because the was deflected from temperate consideration issue real inflammatory testimony introduction of irrelevant, concerning past. Mich by Levin, Michigan Supreme
The observations of the Court People (1889), in Pinkerton 110, 114,are point: in competent “in a not criminal we think it case, do compel respondent,
to questions who is witness, answer tendancy having irrelevant to the issue, bring charges. to proper in other Whatever latitude is veracity, it cross-examination to test can- properly independant against introduce issues person respondent.” who is both witness and In the cited Jennie case, Pinkerton’s conviction keeping a house of ill fame was because, reversed among other errors, there had been references to her unchastity prostitution. charges against and to made her of (1904),
In v. Dowell 136 Mich it 306, 311, improper bring during was held out cross-exam- charged ination of a defendant, with crime statutory assault with intent to commit the crime of rape, previous that he had been sued on a occasion taking young girl. indecent liberties with another recently,
More v. Simard Mich 624, 630-631, the defendant’s conviction in ducing an abortion was reversed because on cross- prosecutor examination brought out that he had signed a showing persons medical certificate contemplating marriage were free from venereal disease laboratory without a having test been made required by as Michigan Supreme statute. The Court declared: “While much latitude allowed in is cross-examina- credibility, bring
tion to test cannot independent involving alleged out issues other *8 entirely crimes that are dissimilar both in nature nothing and motive and have with whatsoever to do the issue involved.” 377 v. Griffen by Levin, P. J. Wright (1940), 294 Mich the 20, 29, v.
In principle Supreme relying elucidated on the Court, quoted language above taken and the in Pinkerton opinion, reversed the convic from that prosecutor manslaughter the asked of because tion about on cross-examination earlier defendant the gun. Language when he had incidents brandished quoted opinion from the Pinkerton was also above Forsyth relied on in the civil of v. Nostrand cases (1918), 201 Mich and Kovich v. & 558, 569, Church (1934), judg Inc. 267 Mich Church, 640, 644, improper ments were of reversed cross- because party employee of examination the an or of the party against judgment whom the rendered. jurisdictions recognized
Courts in other have unjustified prejudice serious and done a defendant brought in a criminal case when it is out on cross- properly examination that he has avoided or not dis- charged military obligation service and have on that account reversed convictions; there do appear any Michigan be decisions. Grigsby In (1945), Ky Commonwealth 721, (187 263), 259, SW2d established escapee guard- defendant was an from a house being he where was held aas deserter. defendant’s conviction reversed, Court saying: apparent compelling it
“We think the admis- may sion of the defendant that he was or have been guilty especial- military an law, offense under the ly being deserter time was calculated war, against inflame or him, infuriate and that range beyond fair cross-examination went legitimate inquiry. prejudi- that a Therefore, cial error was committed.”2 (214 2 Similarly, SW2d see Powell 1004), v. Commonwealth where, as in Grigsby, people proved Ky 467, *9 368 by Levin,
Dissent P. J. People (81 (1948), In v. Wilson 400 Ill 461 NE2d 211), improper it held to ask was the defendant gone whether he had not army. Similarly, while he inwas the AWOL Jackymiak (1943), v. (46 54), 381 Ill 528, NE2d the ques conviction was reversed because he had been concerning registration tioned military his for ser vice. The Court observed: the
“It whatever in record. It had no basis neither guilt proved prove of nor tended to the the accused, justi any It was not or issue in the case. involved by any that fied the mere fact under circumstances plaintiff improperly permitted in his in error was testify he examination in the fact that chief to to registered. attorney had not did The assistant state’s
occupy partisan of he the counsel; the role people’s lawyer. duty the It was to that both his see state and fair trial ac the defendant received a cording repeated to law the the land. insin of by plaintiff uation the had that error convey registered only never for the to draft could jury impression the the that had the he violated of the laws United was a evader.”3 States and draft principle On the same line draft evasion inquiry of completely was out of bounds, it was improper drag jury herring to before the red of the minor children. he was that defendant was he given trial tion because it was been but, (136 SE 658), (1946), 82 3 Similarly, may be, impropriety any juror said the day discharged the guilty defendant the Kentucky’s damage Okla Crim to judge disabuse see under guilty where it was without of draft evasion v. Harold had' Commonwealth admonished the asking not a close highest court, “by the time this admonition whs the his been honor circumstances, deserter (171 mind done, defendant brought but, P2d offense of ease and it was from nevertheless, such 634), army, out charged, we the not to consider the no matter in a inflammatory doubt army. and Blackwell criminal case whether the court affirmed his convic the defendant nonsupport if apparent On the how it was testimony.” 147 Va 617 fair-minded recognized following evidence, v. possible State his Grieeen Levin, operation employment of a record, Ms Griffen’s handguns, if pig, he he did, fact that owned blind sometMng allegation had “done” to Gloria that he challenge lawyer before the given and to Jackson, explanation why hadn’t Gloria he for an during opportunity an cross-examination Jackson gave to reveal the contents of statement she police concerning, presumably, what Griffen had litigant permissible “It for a done to her. is not *10 challenge opponent presence in the of the trier County legal right.” fact to waive Oakland v. (1971), App Schoenrock 33 Mich 368. 365, inquiries argu- impropriety of these challenge apparent. funda- is Less ments and mentally, point rebuttal view, from technical testimony the doctrine violated Gloria Jackson answer on cross-examination of witness “the binding merely to a matter becomes as collateral upon may cross-examiner not be contra- through further dicted introduction of regarding other witnesses these collateral matters.” Joseph (1970), Barbara, v. Jr. 23 Mich 548.4 the cross-examiner matters.” answers “Where a witness is Similarly, the’Michigan Supreme given are see truthful, may cross-examined on matters because Court said: MacCullough inquire such of other witnesses whether inquiry would 281 Mich purely open irrelevant collateral, 15, 26,