Lead Opinion
The defendant, his brother Jerome Johnson, and a person named Leon, who was neither found nor arrested, were all named as coconspirators in this matter. The defendant and Jerome were tried together but Jerome pled guilty before his case went to the jury. This appeal by right follows defendant’s conviction.
Michael Pierrie, a drug-addict informant, and Daniel Michael Averill, an undercover state police trooper, testified that the defendant parked his car behind theirs on a street in the City of Saginaw. Pierrie went to the defendant’s car to arrange a heroin deal while Averill remained in his car. Trooper Averill had told Pierrie that he only had $480 with which to purchase heroin. Pierrie testified that the defendant offered to deliver a "short quarter” or "7-1/2 spoons” for $480. Pierrie gave the defendant, the money. Trooper Averill did not hear any of the conversation between Pierrie and the defendant. Later, at Pierrie’s apartment, Jerome Johnson and Leon arrived and said they had their (Averill and Pierrie’s) dope. Leon produced the heroin, gave it to Jerome, who, without being asked to, measured out 7-1/2 spoons of heroin. Trooper Averill took the foil packet the heroin was placed in. Trooper Averill testified that 7-1/2 spoons was an uncommon quantity. Averill also testified that after he had taken the packet of heroin, Jerome told him, "I told you to go through me, not Mac”.
Although the prosecution has a duty to endorse on the information and call all res gestae witnesses, it is not obligated to endorse or produce
The defendant also contends that the trial court should have granted his motion for a mistrial when, after the jury was sworn, three members of the 14-member panel realized that they had sat on previous juries which had heard informant-witness Pierrie testify in drug prosecutions. Defense counsel moved for a mistrial based on the fact that they still had two peremptory challenges left (between the two defendants) and would have used those challenges had they known these jurors had heard Pierrie testify before. The trial court denied this motion. Two of the jurors asked to be excused, the third stated that, although he had been on a jury that had heard Pierrie testify, he had not taken part in the deliberations and he could give "a fair and impartial verdict in this case”.
It is important for trial courts to safeguard a defendant’s right to a fair trial before an impartial jury. Declaration of a mistrial may be appropriate where a trial judge discovers that one or more jurors might be biased. People v Gardner,
In the instant case, the juror who remained on the jury was questioned as to his ability to render an impartial verdict. The trial court’s determination of a juror’s ability to render an impartial verdict is reversed only where an appellate court finds a clear abuse of discretion. Rice v Winkelman, supra, People v Gerald Hughes,
The challenged juror here satisfied the trial court as to his impartiality. The trial judge is better able to judge demeanor and credibility when a juror asserts that he could render an impartial verdict. Even though this juror was ultimately chosen by his fellow jurors to act as foreman, we do not find a clear abuse of discretion for the trial court to retain this juror after questioning the juror on the matter. The court determined that the fact that this juror had sat on a panel that had heard the informant testify in other drug offense cases did not necessarily indicate that the juror must have been biased when he did not participate in the earlier jury’s deliberations. The juror maintained that he was not prejudiced by his having previously heard the informant-witness. We are persuaded that the trial judge acted correctly in not declaring a mistrial in
This Court in People v Graham,
"[T]o mandate a new trial more than the discovery of an error by way of the nondisclosure of facts is necessary. The party moving for a new trial must present proof of actual prejudice or must establish to the satisfaction of the trial court that the moving party would have successfully challenged for cause or otherwise dismissed the juror in question had the truth been revealed prior to trial.” Graham, supra, 668.
This Court in Citizens Commercial & Savings Bank v Engberg,
"Absent a showing of actual prejudice or proof that a challenge for cause would properly have been successful, or proof of circumstances that would indicate the moving party would have been more likely than not to have excused the juror on a peremptory challenge, it cannot be said that the trial court abused its discretion in refusing to grant a new trial.”
There was no deliberate attempt by the jurors in the case sub judice to conceal their prior service on juries which had heard drug cases. (Pierrie’s
The defense counsels did not challenge peremptorily or for cause any of the jurors who sat on previous drug cases. They did not indicate any belief that the jurors would not render an impartial verdict. After a review of the whole record, we find no abuse of discretion in the trial court’s denial of a mistrial in the case.
Defendant next contends that it was error for the trial court to allow the statement of coconspirator Jerome Johnson to Trooper Averill, "I told you to go through me, not Mac”, to be used against defendant MacNeal Johnson.
A declaration or act of a conspirator pursuant to or in furtherance of the conspiracy is admissible against a coconspirator but declarations or acts must be made or done while the conspiracy is in existence or in progress. They are not admissible where they occur before or after the conspiracy. 16 Am Jur 2d, Conspiracy, §69, p 280, People v Chambers,
We do not find that the statement by Jerome Johnson was unconnected with conspiracy to de
It is the task of the jury to weigh the credibility of witnesses’ testimony. The defendant admitted receiving money from Pierrie but claimed that the transaction which occurred in front of Pierrie’s apartment had to do with bootlegging tapes. We do not find that the facts of this case indicate the "highly prejudicial impact” of Averill’s testimony about the coconspirator’s statement which would bring it within the Berryman requirement to find error.
We agree with defendant that it was error for the trial court to allow testimony of the state’s rebuttal witness, Sergeant Robinson, to impeach Jerome Johnson’s testimony on direct examination.
Jerome Johnson testified on cross-examination that he did not see or meet his brother MacNeal
MRE 608(b) states:
"Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.”
The conduct which Jerome testified he engaged in (not stopping at Mac’s Record Store or Mac-Neal’s house to see his brother during the trip to pick up the heroin) was contradicted by the prosecutor’s witness, Sergeant Robinson. Robinson testified that he had followed Jerome and had seen him stop at both of these places on that day. The purpose of this rebuttal testimony was to attack the credibility of Jerome as a witness. The admission of Sergeant Robinson’s testimony for this purpose constituted error under MRE 608(b). The defense counsel preserved this issue for appeal by properly objecting to the testimony. This testimony was not admissible against MacNeal as a prior bad act under MRE 404(b) because there was not "substantial evidence” that MacNeal participated in the May 10 heroin delivery. People v Wilkins,
Testimony about Jerome Johnson’s alleged deliveries of heroin on May 10, 1977, and other occa
The defense counsel assisted in preparing an additional instruction which the court read to the jury. It instructed them to consider the evidence as it applied to each individual defendant. Admission of the testimony to impeach Jerome’s credibility as to his statement that he did not go to Mac’s Record Store or house was error, but, because the trial judge instructed the jury as to the limited use of the evidence of Jerome’s prior conduct, and because of the additional instructions, which the defense counsel assisted in drafting,
We do not find merit in defendant’s other issues on appeal and, accordingly, affirm.
Affirmed.
Notes
The court’s additional instructions included the statement:
"Each defendant is entitled to have his case determined from the evidence, as to his own acts and statements and conduct and any other evidence, which may apply to him.”
Dissenting Opinion
(dissenting). I disagree with the holding of the majority insofar sis they would find no reversible error with respect to defendant’s
This Court in People v Ellerhorst,
"On collateral matters, the testimony of a witness is binding except as it may be shaken by his own cross-examination, and even such cross-examination may be limited in the discretion of the trial judge to keep the trial within the bounds of relevancy and pertinency. Under no circumstances may the testimony of others be produced to impeach by putting in issue the accuracy or truthfulness of the witness on unrelated matters.” (Emphasis supplied.)
More recently, the Supreme Court recognized the potential for prejudice to a criminal defendant when the prosecutor deems it expedient to impeach a witness with regard to a collateral trial issue. People v Spalla,
Therefore, because the rebuttal testimony unquestionably was improper, I believe that reversible error has occurred that could not have been cured by the trial judge’s instructions to the jury. I would reverse and remand this cause for a new trial.