*1 121 1968] v. Shirk. PEOPLE v. SHIRK.
Opinion on the Court. Sufficiency 1. of Homicide — Evidence. given Testimony together murder trial that defendant with person deceased and another union, had robbed a credit thereafter defendant and a witness had discussed the deceased’s being police wanted and defendant had said the best thing “plant” someplace, to do was to deceased that defendant help had asked the witness if he would dispose of body, that defendant admitted at trial he left town with shortly death, deceased before his and that defendant had ad- mitted to disposing witness that he was involved in of the held, adequate body, support finding guilt beyond rea- degree sonable doubt of murder in the first (CL 1948, 750- § .316). 2. Criminal Law —Instructions—Admissions on Joint Defendant. provide Instruction to must protection sufficient to a defend- ant when the confession of one defendant is admitted into keep as considering evidence so the confession respect anyone but the declarant. Pear—Prejudice. 3. Homicide —Witnesses—Joint Defendants — joint defendant, Refusal of a former called as a rebuttal further defendant, “because afraid of” the after charged defendant who was with murder [1] [5] [6, [2] [3,4] 16 Am Jur Propriety Attempt plices. 4 ALR3d 351. Am26 Am26 26 Am Criminal cused with Am Jur, Jur, Jur, Law Jur, References eonceal or homicide. Homicide specific jury Homieide Homicide 297. Homieide §§ 2d, 333-344. Constitutional dispose § § §§ 2 for Points 455 et A.LR §§488, instructions as to 1227. 523. seq. body Law in Headnotes as § evidence 574j credibility 21 connecting Am of accom- Jur 2d, ac- App 121. former defendant’s killing and after the into implicating confession require (CL
held, new trial not so 750.316). *2 Defendant —Re- 4. Same —Confrontation of Witnesses —Joint buttal. argument was denied his constitutional Defendant’s that he where, witness, charged of of a after defendant confrontation denying knowledge killing, all murder confession, implicating defend- former whose ant, previously admitted into called as had been prosecution testify and refused rebuttal held, defendant, of” the further “because afraid persuasive, since the turned the rebuttal witness 1948, 750.316). (CL over for to the defense cross-examination Dissenting Opinion. T. G. P. J. Trial. 5. Criminal Law- —Pair justice administering concept system on is based American of gmlt that no man is until his has been established in a trial. fair Codefendants—Prejudicial
6. Same — Statements. joint defendant, called as rebuttal Refusal of former defendant, testify “I because am afraid further of” after charged with mmder ioho was testified killing, of after former defendant’s implicating defendant, into evidence confession prejudicial held, the whole so to vitiate trial. Duty Prejudicial of 7. Same — Statements — Prosecutors. joint defendant, called as a rebuttal witness Refusal former murder, by prosecution charge on “because further imposed defendant, duty upon prosecutor I am afraid of” by reguesting try either to to correct statement movmg (CL compel answers, 19J)8, the court or mistrial for §750.318) Oakland; Gr.), Dondero Appeal (Stanton J. 8, 1966, Lansing. Division December Submitted No. (Docket March Decided Loave 33.) People' v. Shirk! April granted appeal 15,1968, and ease remanded Appeals July 24,1968. See Mich Court Harvey convicted of murder in appeals. degree. Defendant the first Affirmed. Kelley, Attorney Frank J. General, A. Robert. Derengoski, General, Solicitor S. Jerome Bronson, Raymond Prosecuting Attorney, Hand, As- Attorney, Prosecuting people. for sistant the- Douglas appeal. Booth, for W. defendant on J. H. J. Defendant, Richard H. Shirk, Gillis, charged one were and degree with- first- Carlo
murder * death whose body county January was found in Oakland *3 They together jury were tried 1960. before a county court, circuit which Oakland trial com Tuesday, May May menced 1960. On prosecuting attorney was allowed to -file thereby adding an to the information, amendment charging McKay count Gerald with murder second n degree. police in the This was done after second by McKay officers testified as to confessions made . implicated which had H. Shirk. plea
McKay accepted, and the court offered, then proceeded The trial to the second count. only. as to defendant Shirk prior
During to Mc- of the trial the course Kay’s plea, in- when the confession defendant Shirk’s troduced into counsel gave, requested, instructions the court considered confession could be that such McKay. jury only against [*] OL 750.316 (Stat Ann 1954 Rev § 28.548) .—Reporter. App Opinion op the Count. After killing, was called as a prosecution. His
rebuttal part, follows: inwas, respondent you Eichard know Do “Q. rather? Shirk, or-—-Eichard Yes. “A. “Q. acquainted you facts with the surround-
Are shooting Vitale? ing of Carlo going to answer. I am “A. you present when Carlo Vitale “0. Were killed? any questions, going Mr. answer to “A. Barry. subpoena of court? under You are here
“Q. Yes. “A. why you this court and the tell
“Q. Would questions concerning you this mat- refuse answer ter? why. that is Dick, Because I am afraid “A. Dick
“Q. Of Shirk? Yes.
“A. way?
“Q. what afraid all. I don’t him, “A. Just that’s want anything. wrong going I am not about any questions. answer Barry:
“Mr. witness.” Your Then on cross-examination he testified: you say “Q. now, Were told sir? say “A. Was I told to that? No. I What was say. told—I was—that is what I I told was police You “Q. told the that Carlo *4 killed on November 28th. any questions. I am
“A. to answer “Q. Was Carlo Vitale killed on November 28th? any “A. answering questions, Mr. Bedrosian.” Shirk. v. Court. a verdict of first- returned against
degree Shirk. murder appeal This asserts two errors: (1) con- accused was denied his guaranteed by against by him fronted the the witnesses Michigan art and 2, 19, Constitution Am 6. Constitution, the United States (2) (properly admitted) against The evidence support finding defendant Shirk was insufficient to of beyond guilt a reasonable doubt. regard assertion of error to the second we With Henry Crow, David little merit. One
find (the together with he, that Shirk Vitale testified Engineers up deceased), Designing held Credit witness and Thereafter the Shirk discussed Union. was “hot”—wanted fact that Vitale the police thing said that Shirk best do —and someplace. “plant” him also be to Crow would help if him that Shirk asked Crow would testified body, (Shirk) dispose saying that he of the way.” (Vitale) him on his “send part corroborated in This Jo Huldquist. Ann he left town with
Shirk shortly prior death. Vitale’s (Detective Schlacter) testified One that disposing admitted he involved body. testimony, finding In view if our believed, adequate support beyond reasonable doubt. analyzing error, however, the first assertion of are confronted with
we a more difficult task. It is clear when a confession of one admitted under such as in the is circumstances required case, instant the instruction the court provide protection give must sufficient (1957), to the defendant. See Paoli v. United States (77 278). 1 L 2d 352 US S Ct Ed *5 Act? op the Court. sufficiency question of instructions the “kept limiting whether or not the instructions considering [of the the the contents anyone respect statements] to the but Wong v. the declarant.” Sun United States See (83 (1963), L S 9 Ed 371 US Ct 457). given by 2d court the trial instructions were and clear. accurate testimony reading A the the rebuttal witness leads us in the conclusion from to different that reached opinion. prosecutor
dissenting may have McKay been forewarned that take the testify. and decline to stand We do know prosecutor hoped whether the once that change sworn in aas witness he would his mind testify, prosecutor put or whether the him on purpose eliciting the stand for Any that he was afraid of Shirk. comments point speculative. agree but are While we that it have been better if testi- fied that he was afraid of Shirk, the statement as require made not so as to a new argument trial. Defendant’s that he was denied his constitutional of confrontation of the witness persuasive. is not turned the rebut- tal witness over to the defense for cross-examina- tion and the fact that the defense was dissatisfied grounds with the cross-examination is not for re- versal.
Affirmed.
McGregor, J., concurred with IT. J. Gillis, J. (dissenting). T. G. Kavanagh, P. J. If we could adopt theory justifies the end means, we could affirm the defendant’s conviction without compunction. v. Shirk. Dissenting Opinion T. G. and Gerald killed Carlo Richard Shirk confessed mnrder
Vitale. police investigating Shirk, in an un- it. trial after he new had been effort obtain usual prison, to life in sentenced convicted it in *6 judge. trial letter to the a his admission was direct contradiction While testimony at a fact trial, sworn which the to his trial judge request, as the basis for used reading touching the witnesses upon flight of the interstate the defendants and inescapable leads to the deceased, conclusion that- long last, Shirk told the truth when he admitted the murder.' jailed we killer for
So have confessed murder. justifies been Justice has served—if the end means. system administering justice our
But whole is concept based that no man is until his guilt has been in a fair trial. In Our established tradition even Richard Shirk should not im- prisoned without a fair trial.
Among myriad prejudicial' instances of conduct which the record of trial discloses, one is so my squarely blatant vote for reversal is based upon it. permitted After the defendant to
plead guilty second-degree following to murder, implicated admission his confession which Shirk, he was called as a rebuttal witness after Shirk had testified that he killing. had not committed the excerpt transcript quoted from the majority in the opinion persisted discloses how he in his refusal to explained by his refusal his fear of Shirk.
My brothers prose- maintain that to conclude the cutor knew, before took the what he stand, say would from his statement: Arp Mick T. Dissenting G. say I told No. that? What I told “Was say”, I was I told what
—I was—that is forewarning. speculate prosecutor’s on the may appear indulgence a more char- as such While prosecutor’s position, we view towards the itable prosecutor practice charity if towards the cannot it injustice requires to the defendant. prosecutor knew what either
say censured knew, If he If he he should be or he didn’t. McKay’s calling know, him. didn’t when for testimony presented surprising since affront, such a by calling possible it Mc- had made duty Kay, try either it, he correct compel moving requesting answers or that the court merely said, that he “Your a mistrial. fact for persuades me that he was neither sur- witness”, disappointed. prised nor my perform- necessary view the effect of this totally prejudicial ance so the defendant *7 whole to vitiate the trial.
I would set aside the conviction and remand for prosecution. proper