*1 v KNIGHT PEOPLE 8, 1982, Docket No. 54393. October at Detroit.—Decided Submitted 20, January 1983. Knight second-degree Chare A. was convicted murder and conspiracy degree, Wayne to commit murder the second Court, Wise, acquitted felony- M. Circuit John J. He was appeals, alleging firearm and numerous errors. Held: conspiracy 1. The defendant’s conviction for to commit sec- ond-degree improper. murder was The crime of logically commit cannot exist. 2. The defendant’s conviction murder was acquittal felony-firearm charge. not on inconsistent with possession There was sufficient evidence unrelated to the References Points Headnotes 2d, 29 Am Evidence 327. § Jur 2d, 569, 81 Am Witnesses 571. §§ Jur 2d, 44, 40 Am Jur 53. Homicide §§ 1156, 2d, 76 Am Jur Trial 1157. §§ Inconsistency of criminal as verdict between different counts of indictment or information. ALR3d 259. 2d, 21 Am Jur Criminal Law 167. § 2d, 76 Am Jur Trial 1158. § 2d, 48, 5 Am Jur Arrest 49. §§ 2d, 29 Am Jur 590. Evidence § 2d, 81 Am Jur Witnesses 478. § 2d, Prosecuting Attorneys 63 Am Jur 29.§ 2d, 29 Am Jur Evidence 433-436. §§ Admissibility, prosecution, in criminal of evidence secured me- eavesdropping chanical or electronic device. 97 ALR2d 1283. 2d, 708, 29 Am Jur Evidence 731. §§ 2d, 29 Am Jur Evidence 494. § 2d, 30 Am Jur Consideration, Evidence 1103. § facts, determining hearsay of inadmissible intro- objection. duced without 79 ALR2d 890. 2d, seq. 75 Am Jur Trial 116 et § judge criticizing, rebuking, punishing Remarks or acts of or defense case, requiring counsel in criminal as or new trial reversal. ALR2d 166. 2d, 29 Am Jur Evidence 333. §§ accomplices firearm used the crime the defendant’s support the defendant’s conviction as an aider and abettor to the commission of the murder. probable
3. The had cause to arrest the defendant and his arrest was not unlawful. *2 4. Since the evidence on the issue of whether the defendant’s voluntarily conflicting, confession was made was the Court of Appeals findings deferred to the trial court’s on that issue depends solely credibility
because the resolution on the hearing. witnesses who testified at the 5. Reversal of the defendant’s conviction for required prosecutor’s calling murder is not due to the a witness going give testimony whom he knew was to at the trial incon- testimony preliminary sistent with her at the examination. The prosecuting attorney did not offer either version of the wit- testimony merely presented ness’s as the correct version but jury. both versions to the prosecutor’s questioning 6. The defendant’s claim that the of concerning plea-bargaining agreement him at the trial a consti- requiring tuted error reversal is without merit. The evidence testimony was offered to rebut the defendant’s on direct exami- prosecutor charges nation that the offered to dismiss the if the agreed testify against coparticipants to his in the injected trial, crime. Because the defendant the issue at the he may prosecutor’s not base a claim of error on the further questioning regarding subject. of him prosecuting attorney 7. The was not and should not have disqualified trying been merely from the case because he had participated plea-bargaining negotiations in unsuccessful the defendant. Any may 8. error that have resulted from the trial court’s failing suppress tape-recorded telephone evidence of a con- copartici- versation between a woman with whom one of the pants residing beyond and the defendant was harmless reasonable doubt. The statement that the caller made was not incriminating, being the caller was not identified as the defen- dant guilt and the other evidence of the defendant’s was so alleged that it could not be said that the error convincing juror aided in an otherwise undecided of the defen- guilt. dant’s testimony 9. The concerning admission of a witness’s state- night ment made the victim on the before he was killed was properly relating then-existing admissible as to the declarant’s state of hearsay. mind and was not inadmissible The Court of precluded considering claims Appeals defendant’s other from hearsay regarding failed of evidence because he the admission object of such trial and to the admission considering injustice not result from not manifest would claims. trial criticism of defense counsel in the 10. The court’s require jury presence not reversal. statements does relatively not the trial court were innocuous and could made unduly jury. have influenced at the station 11. The search the defendant’s wallet following incident to defen- his arrest was a valid search arrest. dant’s admitting not err evidence of the 12. The trial court did judge recognized prior The trial convictions. weighed appropriate determining factors discretion and By considering that the to admit the evidence. whether violence, judge were for consid- convictions crimes wrong detract but does not from ered one reason applied appropriate properly that he the other conclusion making The defendant’s conviction of factors in his decision. be should affirmed. part. part Affirmed in and reversed Danhof, C.J., judge concurred. He believed that trial *3 prior admitting evidence of the defendant’s convic- erred in judge misapplied the factors to be tions because evidence, determining in whether to admit such but considered against the that the error was harmless because the evidence defendant, confession, complete including a testimony nature of was incredible. and the the defendant’s
Opinion of Court Impeach- — — 1. of Prior Criminal Law Evidence Convictions ment. admitting A does its in trial court not abuse discretion prior purposes impeachment of a defendant’s convictions for balancing appropriate after factors for such determina- i.e., factor, considering improper tion but also an whether violence, prior court convictions crimes of where the involved solely improper did its factor but not base decision on the properly weighed appropriate competing factors. by Danhof, C.J. Part in Conspiracy Second-Degree — 2. Murder. no crime of There is commit exist, logically being
since such a crime cannot anomalous to speak planning in terms of to commit a crime which premeditation definition is committed without and deliberation. — 3. Criminal Law Inconsistent Verdicts. Supreme jury The rule announced Court that verdicts applied retroactively, need not be consistent should not be and jury instructions in cases decided to the announcement of which, law, the rule consistent with the then-extant indicated jury verdicts must be consistent and that inconsistent explained verdicts must be set aside unless on some rational provide grounds basis should not be held to for reversal on appeal. Weapons Felony-Firearm. — 4. committing attempting
Possession of a firearm while or to com- felony separate underlying felony; mit a is a crime from the therefore, charged where a defendant is as an aider and abettor underlying felony necessary prosecution of the it is not for the accomplices to establish that the defendant assisted his obtaining retaining possession or of the firearm used to commit felony to convict the defendant as an aider or abettor of the underlying felony guilty and in such a case a verdict of of guilty felony-firearm murder and not is not (MCL 28.979). 750.227b, 767.39; 28.424[2], inconsistent MSA Appeal — — — 5. Arrest Felonies Probable Cause. court, reviewing probable A a claim that a officer lacked defendant, cause to arrest must determine whether facts justify available to the officer at the moment of arrest would person average intelligence believing fair-minded that the suspected person felony; had committed a each case must be analyzed light particular confronting facts the arrest- ing officer. Appeal. — — — 6. Criminal Law Confessions Voluntariness court, appellate reviewing An rulings when a trial court’s on the confession, voluntariness of a defendant’s must examine the conclusions; however, entire record and draw its own if there is conflicting evidence and the determination of voluntariness is largely dependent witnesses, appellate credibility on the findings. court should defer to the trial court’s *4 — 7. Criminal Law of Cross-Examination Defendant. prosecutor’s questioning, A improper, even if does not result questions inquiring reversible error where the are asked in into issues raised the defendant. Prosecuting Attorneys Plea-Bargaining Agreements. — 8. prosecuting attorney prohibited trying A is not from a criminal against prosecuting attorney a defendant case because participated plea-bargaining negotiations in unsuccessful the defendant. Tape Recordings. — 9. Evidence may Any error that have resulted was harmless and reversal of a required not defendant’s conviction was where the trial court suppress tape recording of a refused to evidence obtained police-initiated telephone a warrant of a conversation without copartici- a between the defendant and woman with whom a pant residing in the crime was where the statement that the incriminating, caller made was not the caller was not identified defendant, and the other evidence of the defendant’s as the guilt overwhelming was so could not be said that the convincing juror alleged an otherwise undecided error aided guilt. of the defendant’s Hearsay. — 10. Evidence then-existing A of a declarant’s state of mind which statement motive, intent, plan, design or admissi- the declarant’s shows (MRE 803[3]). exception hearsay rule ble as an Appeal Preserving Hearsay — — — 11. Evidence Question. objections in the trial court to the admission Failure raise preclude appellate alleged hearsay review absent evidence will injustice. manifest — 12. Law Judicial Criticism of Defense Counsel. Criminal interrupted improperly A claim the trial court deprived the in a manner which and criticized defense counsel in the context defendant of a fair trial must be considered proceedings; duty reversal the court’s to control required court where the trial defendant’s conviction is not relatively not be said statements which could made innocuous unduly jury. to have influenced — 13. Prior Evidence Convictions. prior on convictions of evidence of a defendant’s The admission basis, i.e., improper were because the convictions an violence”, grounds his convic- for reversed of is not "crimes beyond complained harmless of was tion where the error nature of doubt because of the reasonable complete defendant, including against confes- testimony sion, nature of the defendant’s and the incredible the trial. *5 589 by Danhof, C.J. Part Concurrence in Frank Kelley, Attorney Louis J. General, Caruso, Cahalan, General, William L. Solicitor Wilson, Prosecuting Attorney, Edward Reilly Dep- George Best, and A. Chief, and uty Appeals, Civil II, Prosecuting Attorney, people. Assistant for the Card,
Richard J. on appeal. Danhof, C.J., N. J. Before: and and Kaufman Riley, JJ. D. C. We agree Judge Chief
Per Curiam. Dan- in of all issues this analysis except case one. hof’s We do trial not believe that court erred when admitting evidence of the convic- tions. The "crimes of violence” used by standard the trial It wrong. appears court nowhere case or the law Rules of Evidence. But the judge did not base his on solely decision this standard. judge record shows that recognized recognized discretion and both and prejudicial probative in admitting elements of simi- Crawford, lar crimes. Mich App By announcing these violence, were judge crimes announced one wrong admitting reason for evidence of the convictions this but does not detract from the fact that he properly applied the Crawford factors in reaching Thus, his decision. the decision was not erroneous, despite the surplusage.
Danhof, C.J. (concurring). Defendant was con- murder, victed of second-degree in violation of 750.317; MCL 28.549, MSA and to com- mit degree, second violation 28.354(1) MCL 750.157a; 750.317; MSA and MCL MSA 28.549, following acquit- trial. He jury ted on a charge of possession during of a firearm 122 by Danhof, C.J. 750.227b; MSA MCL felony.
the commission 28.424(2). sentenced to serve two concur- He was prison. years of from rent terms of right. his convictions as appeals shooting arose from the convictions Defendant’s codefendants, Two Perry. of Rothbe Elwood death the victim’s Perry, and Mildred Robert Jackson *6 wife, proceeding. in a See separate were tried Jackson, People v App 114 Mich 319 NW2d (1982); People Perry, v App 115 Mich 321 (1982). Some of the issues raised are NW2d 719 Jackson, supra; Perry, raised in to those identical issues, to we reach the supra. respect With those Therefore, for defendant’s conviction same result. va- commit murder to cated. defendant, remaining the issues raised
Of require none reversal. complains first that his conviction inconsistent his murder was with charge. the the Since
acquittal felony-firearm on place Supreme in took to the trial this case Vaughn, People v 409 Mich Court’s decision (1980), 463; 295 review the verdict we NW2d explained can be on some to determine whether Smith, v People Blondell 108 Mich rational basis. 466, 469; 310 App NW2d 425 su- Vaughn, Unlike situation presented pra, charged as present case In 767.39; MSA 28.979. an aider and abettor. MCL to order defendant as an aider and abettor convict to unnecessary in the of Mr. it was Perry, accomplices in ob- establish that he assisted used taining retaining possession or of the firearm Palmer, People v felony. Compare commit (1974), 370, 378-379; 392 Mich NW2d Johnson, People v 50, 54; 303 v by Danhof, C.J. record Our examination discloses evidence, that sufficient evidence unrelated of the firearm defendant’s accom- possession support was established to con- plices, as an aider and in the commission viction abettor Therefore, Mr. Perry’s nothing murder. we find inconsistent about these two verdicts. police
Defendant next
lacked
complains
that,
therefore,
cause to
him and
probable
arrest
his arrest was unlawful
and the statements
he
following
sup-
made
his arrest
should have been
Potter,
125,
In
pressed.
115 Mich
134-135;
(1982),
"In
a claim that a
officer lacked
arrest,
probable
reviewing
cause
court must
determine whether
facts available to the officer at the
justify
person
moment of arrest would
a fair-minded
average intelligence
in believing
suspected
person
felony.
had committed a
Each case must be
analyzed
light
particular
confronting
facts
arresting
502;
People Harper,
officer.
501-
*7
(1962),
Ward,
People
told her wanted repeat her to that name to and instructed never police. foregoing, conclude that there were From the we justify defen- facts known to the sufficient dant’s arrest. complains that the trial court next ruling voluntarily that his confession was erred conflicting made. The evidence on this issue depended solely on a deter- thereof and resolution concerning credibility of the wit- mination hearing. Therefore, we nesses who testified at findings on this issue. defer to court’s App 791, Price, 797-798; NW2d 249 required
Defendant contends that reversal prosecutor who he because the called a witness going give testimony. dis- knew was agree. false We prosecutor witness, called a preliminary niece, at the examina- who testified shooting tion her after the told prose- getaway trial, At that he drove the car. questioned about that testi- cutor first mony. the witness brought out *8 the fact that she He then v by Danhof, C. pre- the recanted that one week after testimony that she testi- examination. She claimed liminary the examination be- falsely preliminary fied get cause she wanted to even with defendant upsetting opinion, her mother. In our the situation involved here is not akin to the situation involved People Thornton, v 746, 750; App Mich supra, Thornton, prose- NW2d 35 In the being presented cutor knew that the testimony Here, although was false. the witness recanted her prosecutor not be testimony, could sure which Furthermore, version was accurate. since he did but, not offer either version as the correct version rather, presented both to jury, is clear that he present did not knowingly false testimony. prosecutor’s next claims questioning of him concerning plea-bargaining agreement constituted reversible error. We find this issue to be without merit. The evidence was offered to rebut defendant’s testimony on direct examination that the prosecutor offered to dismiss if charges defendant agreed to testify against his coparticipants. prosecutor’s questioning defendant was designed prove agree- ment was only to reduce charge if defendant agreed to It testify. is not clear whether MRE 410 permits a criminal to introduce evi- dence concerning a plea-bargaining agreement. See Strickland, 40, (1977). However, NW2d 232 since defendant in- jected issue, he may not now base a claim of reversible error on prosecutor’s ques- further e.g., People tioning of him about the subject. See Jansson, 674, Mich App 323
We also reject defendant’s claim that prose- cutor should have disqualified been to try the case *9 App 584 122 Mich
594 by Danhof, C.J. Part in Concurrence plea- in unsuccessful participation of his because Lemble, 103 People v See negotiations. bargaining (1981). 191 220; 303 NW2d App Mich required be- reversal claims that tape suppress to refused the trial court cause police- a warrant of without recording obtained from a telephone call initiated after staying was Perry Mrs. with whom woman 554; 227 Beavers, Mich People v 393 the murder. (1975). 511 NW2d of this among members exists opinion
A split the rule announced concerning whether Court moni- Beavers, supra, as participant it relates the elec- to include expanded be toring should where conversation recording private of a tronic recording. consents participants one of Artuso, 396; 298 v App 100 Mich People Compare Atkins, App Mich (1980); People v 96 746 NW2d (1980); People Perry, v 91 671 293 NW2d People v (1979), 14 282 NW2d App Mich (1977), Dubose, 644 633; 283 NW2d App 91 Mich dissenting opinion Judge and Danhof’s (1979). Hall, 324; 276 NW2d App issue be- to address this unnecessary find it We required cause, that a warrant assuming even requirement to the warrant exception and that no of this existed, the admission agree cannot that we reversal. The statement requires Furthermore, incriminating. caller not made was the defen- being as the caller was not identified dant. the other evidence Finally, be said it cannot guilt was so convincing an alleged error aided guilt. undecided of defendant’s juror otherwise Therefore, harmless error was any we find that (On Prast People v beyond a reasonable doubt. 469, 489; 319 NW2d Rehearing), by Danhof, C. Part Defendant’s claim that the admission of a wit- ness’s testimony concerning a statement made Mr. night on the Perry before he was killed relat- ing plan to his to leave on a trip was erroneous because it was hearsay evidence is also without merit. The statement related to declarant’s then- existing state of mind and was admissible under 803(3). Oaks, People v MRE 745, 751; Mich App In the absence of a finding of manifest injustice, we are precluded from addressing defendant’s re- *10 maining concerning claims the admission of al- leged hearsay evidence because defendant failed to to the object introduction of that evidence at the Buschard, People v 306, trial. 109 App 310; Mich (1981). We note that had defendant evidence, objected admission of this a cura- tive instruction could have remedied harm. In any event, our any examination of the record discloses no manifest injustice.
We also reject defendant’s
claim that
court’s criticism of his trial
attorney
pres-
ence of the jury requires
reversal. The relatively
innocuous statements made
the court
by
cannot be
said to have unduly influenced the
jury. On
if
contrary,
all,
the jury was influenced
at
as the result of defense counsel’s uncalled-for
re-
sponse to the court’s
Therefore,
remark.
reversal
is
not required. People Moss,
v
18,
App
38;
70 Mich
(1976) (M.
erred
his
two
evidence
purposes,
impeachment
convictions,
attempted
an
un-
robbery
unarmed
conviction,
assault
and
felonious
robbery
armed
that, because the
court ruled
trial
conviction.
violence,
involved crimes
prior convictions
was admissible.
evidence
the fac-
misapplied
that
the trial court
agree
I
Crawford, 83 Mich
App
tors
announced
(1978), and
evi-
39; 268 NW2d
People v
See
have been excluded.
dence should
72, 76;