PEOPLE
v.
KINCAID
Docket No. 64526.
Michigan Court of Appeals.
Decided June 6, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy *212 Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.
Warren H. Siegel, for defendant on appeal.
Before: J.H. GILLIS, P.J., and T.M. BURNS and N.J. KAUFMAN,[*] JJ.
PER CURIAM.
Defendant was charged with, and found guilty by a jury of, three counts of first-degree murder, MCL 750.316; MSA 28.548, two counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). The brutal murders for which defendant now stands convicted occurred when he was just 16 years old. He now faces life imprisonment.
After defendant's arrest, he was taken to the Wayne County Youth Home, and proceedings were initiated in juvenile court. Five days later, before any hearing could be held, he escaped, and was apprehended in California over three years later. When he was returned to Michigan, by which time he was 19 years old, he gave the police a very inculpatory statement, which he later recanted at trial. Although defendant's statement was determined to be voluntary in a Walker[1] hearing, defendant objects on appeal to its admission at trial. Defendant contends that when he was returned to Michigan he was still under the jurisdiction of the probate court, so that his interrogation as an adult was improper. It is true that defendant's statement was not taken pursuant to JCR 6.1(B) and *213 6.2, so that, if those rules applied, his statement would be inadmissible. Had the defendant been arrested one year earlier, his argument would raise an interesting legal issue. As the facts stand, however, his contention is without merit.
The record does not reveal by what provision the probate court assumed jurisdiction over defendant. If it was pursuant to MCL 712A.2(a)(1); MSA 27.3178(598.2)(a)(1), this jurisdiction would have expired two years after defendant's seventeenth birthday. Pursuant to MCL 712A.3; MSA 27.3178(598.3), the probate court has jurisdiction over a criminal charge against any person under the age of 17 at the time of the commission of the offense. However, this Court has ruled that the probate court jurisdiction shall be for the limited purpose of holding a waiver hearing pursuant to MCL 712A.4; MSA 27.3178(598.4). People v Schneider, 119 Mich. App. 480; 326 NW2d 416 (1982). The probate court may waive jurisdiction to the court having general criminal jurisdiction over the charged offense. In this case, probate proceedings were held after defendant's return from California, and jurisdiction was waived to Detroit Recorder's Court. Because the Recorder's Court had jurisdiction over defendant after he was returned from California, defendant's interrogation violated no rule or rights. Since defendant's statement was determined to be voluntary in a Walker hearing, it was properly admitted in trial.
Defendant also objects to the trial court's rulings with respect to the production at trial of certain alleged res gestae witnesses. Defendant already brought this issue to this Court once before, by way of a motion to remand. We granted his motion on February 23, 1983, and ordered the trial court to conduct an evidentiary hearing pursuant to *214 People v Pearson, 404 Mich. 698, 715; 273 NW2d 856 (1979). At that hearing, the trial court impliedly ruled that the prosecutor had shown due diligence in attempting to produce Elizabeth Haliburton, who had been endorsed on the information but whose physician stated that she was suffering from angina and should not testify. The trial court also ruled that the testimony of three other witnesses, who the prosecutor argued were not even res gestae witnesses, would have been cumulative and that their absence did not prejudice the defendant. Defendant then filed a motion with this Court to compel the trial court to produce the witnesses for the evidentiary hearing, which this Court denied.
The prosecution argues that the "law of the case" doctrine prevents this Court from now considering defendant's argument on this issue. However, merely by denying defendant's motion to compel production of the witness at the evidentiary hearing, we did not reach the merits of the trial court's finding in the Pearson hearing. In reviewing those findings, we are hampered by the ambiguity of the trial judge's ruling. We nevertheless find no abuse of discretion. Although the trial court did not specifically find that the prosecutor had used due diligence in attempting to produce Elizabeth Haliburton, he did refer to People v Sullivan, 97 Mich. App. 488, 493; 296 NW2d 81 (1980), lv den 412 Mich. 902 (1982), in which this Court noted that "due diligence means doing everything reasonable, not everything possible". Whether or not the other three witnesses' testimony would have been merely cumulative, we see no indication that defendant was prejudiced by their absence. Considering that defendant did not deny being at the scene of the crime, and none of *215 these witnesses saw what occurred inside the house, it is difficult to imagine anything these witnesses would relate that might bolster defendant's theory that his participation was coerced. In light of the other evidence, and the theory of the defense, the testimony of these witnesses could not possibly have convinced even one juror to vote for acquittal. People v Doyan, 116 Mich. App. 356, 365; 323 NW2d 397 (1982).
Defendant also argues that the trial court committed reversible error by its comments to the jury concerning the Walker hearing. We disagree. In his opening statement, defense counsel told the jury: "Now, the evidence will show that in violation of the law this policewoman went and coerced this young person to make a statement". Upon the prosecution's objection, the trial judge immediately explained to the jury that they were to determine the facts. He added:
"I should also state, ladies and gentlemen, there was a comment made to you that one of the officers did something improper, did something which was unlawful. I would state to you at this point in time that there has been rulings already made by this Court that found that any of the officers' actions in this particular were not improper and were not unlawful."
It is error requiring reversal for a trial judge to inform a jury that the defendant's statement has been found to be voluntary in a pretrial Walker hearing. People v Corbett, 97 Mich. App. 438; 296 NW2d 64 (1980), lv den 411 Mich. 846 (1981), and cases cited therein. The trial court in this case did not inform the jury that the statement had been voluntarily made, but rather that the police had not acted unlawfully in obtaining the statement. This statement did, however, have the same kind *216 of prejudicial effect of invading the province of the jury.
Because defense counsel failed to object to the court's comment at trial, the issue has not been preserved for appeal. People v Baker, 114 Mich. App. 524; 319 NW2d 597 (1982). However, we will review it to the extent necessary to insure that no manifest injustice will result. In view of the fact that the judge's comment was prompted by defense counsel's allegation of improper police conduct and that the judge properly instructed the jury regarding the defendant's statement at the close of the trial, as well as the fact that we find the other evidence against defendant substantial, we find no reversible error.
Defendant's final contention is that, by allowing the jury to deliberate on both Count II, first-degree murder, and Count V, assault with intent to commit murder, his right against double jeopardy was violated, because assault with intent to commit murder is a lesser included offense of murder.
The constitutional protection against double jeopardy prevents a criminal defendant from being convicted of two offenses where one is a necessarily or cognate lesser included offense of the other. People v Wilder, 411 Mich. 328, 343-344; 308 NW2d 112 (1981). In this case, however, the charges appear to have been for separate offenses. The evidence indicated that defendant attempted unsuccessfully to shoot Stephanie Ellington, for which defendant was charged with assault with intent to murder. The evidence further indicated that when defendant then told his companion that the gun had not fired, his companion went back and killed Ellington, for which defendant was charged with murder on the theory that he was an aider and abettor. Furthermore, although defendant *217 was found guilty on both counts, the prosecution moved to dismiss the assault charge after the verdict was announced, and the court granted the prosecution's motion. This was the proper remedy, if the separate counts did violate double jeopardy. People v Jankowski, 408 Mich. 79, 98; 289 NW2d 674 (1980).
Affirmed.
NOTES
[*] Former Court of Appeals Judge, sitting on the Court of Appeals by assignment.
[1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).