*1 App v WEBB PEOPLE 1977, 12, at Detroit. Decided Submitted Docket 27284. October No. appeal applied Leave to for. 1978. March Henderson, codefendant, one and a Webb Robert Lee Defendant first-degree to charged murder. Prior two counts of with joint filed a motion sever. defendant Webb their trial charged of the Defendant was convicted was denied. Maher, Court, Joseph E. by jury in Detroit Recordеr’s offenses appeals. J. The defendant Held: separately try jointly the or codefendants A decision to and, a motion to sever has where discretion of the trial court denied, joint the trial worked be shown that been it must rights an prejudice one of the defendants before of at least to a A defendant is entitled can be found. of discretion abuse separate who, appears, may testify to trial from a codefendant seeking a exculpate incriminate the defendant himself and separate should be reversed A conviction trial. defendant’s denied the motion where the trial court remanded the matter right seeking his did have severance the defendant to sever and joint prejudiced trial. trial to a fair and remanded. Reversed Judge E. hold that D. Holbroоk dissented. He would discretionary to hold or trials was decision court; defining supporting the inconsisten- affidavit required parties before an cies between defenses of discretion could be found. abuse
Opinion of the Court Trial Court— of 1. Criminal Law —Trial—Joinder—Discretion Prejudice. Showing of Severance — separately jointly is in the try A decision codefendants [1, [2] [4] Antagonistic 3] 75 Am 5 Am in criminal 75 Am Jur Jur Jur 2d, Appeаl 2d, defenses as References cases. 82 ALR3d 2d, Trial §§ Trial §§ 20, 21, ground for 17-24. Error §§ Points 245. 24. in Headnotes 805. trials of codefendants v Webb Opinion Court court; discretion trial find an abuse of discretion severance, where a trial court has denied a motion for it must prejudice rights be shown that the trial worked to *2 at least the defendants. one of 2. Criminal Law —Trial—Joinder—Severance. separate A defendant еntitled to a trial from a codefendant who, appears, may testify exculpate himself and incrimi- nate the defendant who a seeks trial. D. E. Holbrook, 3. Criminal Law —Trial—Joinder—Severance—Motions—Discre- Supporting tion of Trial Court — Affidavits —Inconsisten- cies Between Defenses. A decision whether hold criminal trials is court; discretionary supporting with deffn- affidavit ing parties the inconsistencies between the defenses required before an abuse of discretion will found. be Appeal Ruling—Correct 4. and Error — Result. judge’s ruling calling A trial for a result correct will not be though premised upon wrong reversed even reason. Kelley, Attorney General,
Frank J. A. Robert Derengoski, General, Cahalan, Solicitor L. William Prosecuting Attorney, Acting Mueller, Michael R. Repeat Director, Bureau, Prosecutor’s Offenders Raymond Prosecuting Walsh, and P. Assistant Attorney, people. for the appeal. Stern,
Solomon & for defendant on J., Before: D. E. P. and N. J. Kauf and J. McDonald,* E. JJ. man Per Curiam. Defendant Robert Lee Webb and a charged codefendant, Henderson, one were first-degree murder, two counts each of MCLA 750.316; MSA 28.548. The date of the offense was City 10, 1975, in March of Detroit.
* judge, sitting Appeals by assignment. Circuit on the Court of Aрp Opinion of the Court September 1975, a motion 24, defendant filed
On Henderson, himself and the trials of to sever antagonistic. positions claiming The 7, 1975. denied on October motion was heard 24, 1975, in Re- on November Trial commenced 5, until December and continued Court corder’s 1975. jury returned a December
On charged guilty counts of on both verdict jury regard was un- to defendant. offense ' any to Henderson. On verdict as to reach able December 23, 1975, defendant was sentenced imprisonment. Appel- life terms of two concurrent having appointed, defendant been late counsel right. appeals as of beginning trial, both
At the respective motions sever their renewed *3 again denied. to sever were these motions sepa- jointly try codefendants The decision to rately of the MCLA trial court. the discretion 768.5; 28,1028. find of discretion MSA To an аbuse a motion sever- court has denied where a trial ance, trial worked that the it must be shown rights prejudice of the of at least one to defendants. present case, claims that In the defendant denying its a motion court abused discretion theories of the codefend- the defense sever because particular, antagonistic. In defendant ants were theory case that his codefendant’s claims offense, alone committed the was making a victim of circumstances. codefendant not have been Defendant contends that required should against of his the accusations defend codefendant. position. supports In case law defendant’s (1976),
People 6 Hurst, 1; 238 NW2d 396 Mich v People Webb v 185 Opinion op the Court Michigan Supreme Court dealt squarely question trial where the codefend- ants accuse each other of the crime. The Hurst Court stated: general
"The
rule is that a defendant does not have a
right
to a
trial. Joinder of defendants
for a
trial
ever,
usually
within the discretion of the court. How-
granted
severance should be
when the defense
'[a]
jointly
several defendants
antagonistic
indicted are
each
5
Procedure,
other’. Wharton’s Criminal Law and
1946;
Right
Anno:
to severance where two or
§
more
persons
accused,
jointly
are
" 'The trial in many respects more of a contest *4 between the defendants than between the produced the defendants. spectacle a where the Peo- ple frequently by stood and witnessed a combat in attempted which the destroy to each other. Any set of deprive circumstances which is sufficient to defendant of a fair if jointly trial tried with another ” require sufficient to trial.’ 396 Mich at 7. App op Opinion the Court Thibodeaux, 315 S2d 769 (La, 1975), State
In Hurst, supra, the Loui- in approval also cited with denial of a reversed the siana Court Supreme it appears severance motion for where pretrial the defense of counsel that arguments the from conflict: theories would hearing the on at held only
"The adduced evidence for Thibodeaux testimony was the of counsel the gravamen of his intended defense that the who testified to that the contra- Thibodeaux would be establish prosecution, forming which was the basis band defendants, apartment by was shared the found in an that Thibodeaux had property of Sallettes and the sole knowledge of its existence. no directly "Thus, defense the thrust of Thibodeaux’s him, effect, Sallettes, requiring in to stand acсusatory of accusers, and Thibodeaux. trial two the state before circumstances, requires justice Under these trial of charge be severed allow at 315 S2d 770-771. each defendant.” case present The record in the reveals antagonism of the claimed trial court was aware in time to have the defense theories süfíicient granted defendant’s motion severance. prior made to trial and motion to sever was first heard and denied on October this motion was 1975. at again
The motion raised trial. start of the start When the motion was renewed at trial, inquiry response the court’s those from any whether reasons were different trial, the follow- contained the motion prior ing occurred: *5 People v Webb Opinion of the Court attorney]; your No, [defense Honor, "MR. ARDUIN your defenses, I do want tell the Court that
but to these they antagonistic, Honor, believe, and are inconsistent are I and your Honor, of because the inconsistencies of my receiving defense, the trial if together. client will not be a fair your go try Honor has us ahead and this case my your motion, "That’s Honor. luxury pretty "THE COURT:That’s a that’s hard to busy court,
aiford in this as we are.” requested The codefendant also the severance of response these thought and trials the court’s it parties if would be a fair trial both jointly. tried reading
A this of discussion indicates that put potential trial court was on notice of a conflict between the this conflict became clearly apparent began pres- as the defendants throughout argu- ent their cases and continued testimony. ment and The trial thus bеcame the type prejudicial confrontation between codefend- contemplated by ant the Court in Hurst and Thi- having court, bodeaux. The trial been advised of upcoming grant failing conflict, this erred in defendant’s motion to sever the trial. alleges part
Defendant on also misconduct jurors part and error on the of the court for allowing testimony key of a witness to be recrеa- transcript testimony ted after the of that could not prepared. be Defendant also claims that he was right appeal portion denied his for a transcript produced could not be and the court hearing testimony held to reconstruct settle the record. Since none of these last enumer- apt subsequent ated items are reoccur at the necessary defendant, trial of this it is not to write App Holbrook, P. J. by D. E. concerning any rea- the other claimed further appeal. sons for prejudicial to sever was the motion denial of is reversed of the defendant The conviction
error. *6 is remanded for trial. matter and the (dissenting). This writer is J.P. D. E. Holbrook, disagree respectfully with the result to constrained required by ap- opinion. majority in their the defendant-appellant pears re- to this writer prejudice resulted to that no a trial and ceived fair being Henderson. with codefendant tried him in Defendant-appellant guest of been a
Webb had apartment several weeks in his Henderson subject murders, are the which the two before proceeding, men Both had occurred. criminal this girl apartment. living in the them friends apartment girl on March left the Webb’s friend days murders. There was the two before Henderson’s) (not testimony the case indicate in hiding Big thought Big her. Jim was Webb Big Jim of the murder. of the victims Jim was one Big apartment Jim’s other victim were and the occurred and the murders on the first floor where apartment floor of on the third Henderson’s building. apartment the same morning 10, 1975, offense, March the On get went downtown and Henderson Webb obtaining checks. After Webb’s two welfare purchased a checks, shotgun and cashed one check Webb pawnshop. men Then both at a for $48 friend of Webb. visited a had a drink at bar and they shells for obtained the It is unclear where they shotgun, evidently when them for had but apartment they the shot- had at the Webb arrived gun Previous had a sack of shells. and Henderson purchased returning apartment Webb to the v Webb by D. E. gin vodka, bottle son’s took it with him tо Hender- apartment Young, and drank it with Patricia apartment a friend who came over from another building. in the same girl Neither Henderson nor his any dispute friend drank of it. There was no gun apartment the fact that was at the and bought that Webb had it. Webb testified that he gun for his father. He further testified that day question, 1:30 about in the afternoon of the apartment he left the home to his went mother’s quite away а distance at the time he —that police mother’s, at arrived his were there and stopped nearby at so he a friend’s home stayed police night there until left. That apartment get tried to return to Henderson’s the check that he had not cashed and had left A there. apartment friend of his drove him over to the they
and when arrived someone at shot passenger sitting, they side where Webb was *7 then left and did not return. Webb’s defense was simple there, not it, was he did not do he did —he anything shootings. not know at all about the The shootings place p.m., took 2:30 about about an apartment. after hour further Webb said he left the Webb shotgun testified he sold the to a $50 man whose name he doesn’t He not know. did describe him and did not know where he lived or anything else about him. He met him in a bar.
Henderson testified and verified account Webb’s concerning with a few variations the two of them that the activities of
day up p.m. until 1:30 Henderson, however, corroborated other witnesses’ testimony to the effect that before Webb was there just shootings. after not Henderson did place apartment shootings inWebb where the shootings. occurred, nor did he witness the One of say the witnesses testified she heard Webb was (one victims). going Big to shoot Jim There App D. E. to show that tended evidence considerable was building apartment present in the that Webb shootings. cross- counsel Webb’s time of at the gestae the res as all as well Henderson examined fairly jury defend- was able treat witnesses. concerning case facts of the all ant Webb pre- properly testimony brought in the out jury. of defendant Webb’s All bеfore the sented fully explored and ex- and theories were claims attorney. plained by his only judge had the is true conclusory language phrased and did he denied him when all these facts before
not have his trial. to sever defendant Webb the motion of is as follows: Webb of defendant The motion by M. Ar- defendant the above named "Now comes this Honorable Attorney and moves thur Arduin his following for the this defendant’s case Court to sever reasons: charged of with offense "1. the defendant is That - degree murders. first case is one this
"2. the other defendant That Johnny Lee Henderson. directly defendant are "3. That the interests this co-defendant, although and that opposite to those of his killing the two charged co-defendant his co-defendant, information, this
persons named in on trying put the blame Johnny Lee Henderson although he is innocent says this defendant charge. of this rrequirs "4. That such a conflict interests [sic] he can obtain separately, be tried so that this defendant a fair trial. *8 this co- go to trial with "5. That is is forced to [sic]
defendant, jury might come to a conclusion the guilty, then this defentant this co-defendant [sic] guilt be guilty, which could could be inferred to be also (Empha- presencee mere by inferred defendant’s [sic]” supplied.) sis People 191 v Webb by D. E.
This motion conclusory in nature and not in presented accord the facts to the jury. spelled Defendant Webb should have out in an conflict, if any, affidavit the him between defendant Henderson. This he did not do.
Also, in connection with the motion to sever the Webb, trial of defendant we note with interest attorney that his filed a motion to endorsе addi- gestae tional res witnesses —those who were not on the listed information but who Webb claimed gestae were res witnesses. Webb desired these witnesses to appear and testify and motion to gestae endorse res granted witnesses was by the trial court and the subpoenaed witnesses were to testify.
The opinion of the majority bases their
reversal
grant of
a new trial on the faсt that
improperly
court
denied
motion to sever. Peo-
Hurst,
(1976).
ple
1;
v
396 Mich
"No affidavits were attached to defendants’ motions.
Nor did the statements
contained
defendants’ mo-
adequately
scope
antagonism
tions
'the
assert
full
*9
App
182
82 Mich
192
Holbrook,
by
J.
D.
P.
E.
Dissent
People v
defenses’.
his and his co-defendant’s
between
(1969).
616, 635;
307
Markham,
173 NW2d
App
Mich
19
by
Gilmore
made
оnly
claim
substantial
their co-defend-
they
not call
is that
could
and Smith
trial;
largely
claim is
and this
testify in a
ants to
co-defendants,
indicating that
even
vitiated
decisions
testify
compelled to
be
separately,
cannot
if tried
67, 84,
Merritt,
n
396
People v
against
their will.
Alstine, 57 Mich
(1976); People v Van
18;
As motion of defendant Webb to the attached is a conclu- sever Defendant’s severance. sory facts, claimed that statement without might appellаnt for blame Henderson codefendant testify as Henderson did Codefendant the murders. appellant’s activities his and to details of both not Henderson did the murders. before and after anyone, appellant did not see Webb murder see appellant Big apartment day, had also Jim’s thorough of his codefendant cross-examination required Defendant-appellant was not Hendersоn. antagonistic present stran- an a defense before ger, of a defendant had cross-examination rather fact, to him. In codefendant well known apartment. occupied the same and codefendant right Henderson cross-examined Defendant Webb they gestae along witnesses, and all res other provided of both some evidence all circumstantial guilt. appellant’s and his codefendant’s any properly Defendant-appellant claim did not v Webb by D. E. right grounds substantial for the motion for appellant prejudice severance, has nor shown right. any substantial appears defendant-appel- this writer that having gestae
lant presented desirous of all the res *10 jury. before the He made a motion to granted. may effect, this thought which was be that he ' acquit- he would have a at better chanсe gestae presented. tal regard if all the res In this agree. this writer would At least all the presented jury. facts would be to the judge Now it is true that the trial stated in refusing the motion to sever as follows: luxury pretty a "That’s that’s hard to afford in this court, busy as we are.” good. This writer admits that reason was not judge refusing However, the trial also stated motion to sever as follows: "I advantage tried, think it would be to his to hаve it case, if that’s the everything Jury front a that can hear
at once. If are there two Juries who one only can’t see in front man and can see the man one that’s other, they’ve them got and not the then chance to observe both.
"I it think would be way a fairer trial this than would be. you gave,
"For the
deny your
reason
I’ll
motion.”
judge’s ruling calling
A trial
for a correct result
though premised upon
not bе
will
reversed even
wrong
Co,
reason.
v
Williams
The Detroit Edison
(1975),
App
Przbylin-
559;
63 Mich
In accord whereby shown that it is stated herein the reasons all the res a fair trial had Webb jury presented no to the gestae witnesses resulting rule him, would this writer prejudice to sever judge’s denial proper. issues raised other has The defendant appeal merit which do not this error in claims or decision. discussion the conviction. to affirm votes
This writer