PEOPLE
v.
BRADFORD.
Docket No. 2,379.
Michigan Court of Appeals.
Decided April 2, 1968. Rehearing denied May 28, 1968. Leave to appeal denied September 30, 1968.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John T. Hammond, Prosecuting Attorney, and Harry J. Creager, Assistant Prosecuting Attorney, for the people.
Tat Parish and James B. McQuillan, for defendant.
Leave to appeal denied September 30, 1968. See 381 Mich 778.
HOLBROOK, P.J.
Defendant-appellant, Lionel Bradford, was found guilty by a jury on February 6, 1963, of the crime of assault with intent to commit murder.[1] He was sentenced to a term of 20 to 40 years. On May 31, 1966, defendant's motion for new trial was denied by the trial court. His motion for delayed appeal to this Court was granted August 8, 1966.
*700 Pertinent to defendant's appeal are the following facts: During the early morning hours of November 5, 1962, 2 policemen were shot and gravely wounded by 2 gunmen while stopping an automobile to investigate a local burglary in Benton Harbor, Michigan. LeRoy Payne was subsequently arrested. He confessed to the shooting and implicated defendant as his accomplice. Payne's confession was coerced by the police. He was the chief witness for the prosecution at defendant's trial where he named defendant as his accomplice.
In an affidavit made at Ionia State Reformatory, Ionia, Michigan, on August 31, 1965, Payne recanted his trial testimony implicating defendant, stating that the testimony given was false and made under police duress.
Restated, the questions raised by defendant for review will be treated in proper order as follows:
1. Did the trial court commit error in refusing defense counsel's motion to exclude witness Payne's testimony as untrustworthy as a matter of law?
At trial witness Payne implicated defendant as his accomplice in the shooting of the 2 police officers. He testified that he knew defendant and related his version of the events in question. He also testified for the prosecution and defense in great detail of physical harm inflicted during police interrogations to which he was subjected. Witness Payne's testimony was certainly to be considered and weighed with no small amount of suspicion. Yet for the trial judge to exclude it as untrustworthy as a matter of law would result in an invasion of the jury's exclusive and unquestioned province as the trier of fact.
In People v. Treichel (1924), 229 Mich 303, the fact situation and question raised were very similar to that herein. There the implicating accomplice was slapped into a confession by a sheriff. The *701 Michigan Supreme Court by Mr. Justice WIEST stated on p 309:
"Defendants may not urge the exclusion of the testimony of Howard Long on the ground he was led to confess by trickery, deceit, brutality or promises. He was not on trial. Methods and means employed to get him to confess went to the jury along with his testimony, and it was for the jury to say, under the circumstances, what weight, if any, they would give to what he said in court."
The jury in the instant case was made aware of the circumstances surrounding and leading to witness Payne's implication of defendant. The trial court gave instructions which were extremely favorable to defendant on this matter[2] and did not commit error in denying defense counsel's motion for exclusion of witness Payne's testimony as a matter of law.
Defendant further contends that the principles which led to the development of exclusionary rules for forced confessions should be equally applicable to the admission of confessional testimony of accomplices. The following statement from People v. *702 Ferguson (1965), 376 Mich 90, 97, indicates that this question is an open one in this State:
"It is unnecessary to discuss extending the rule in People v. Hamilton (1960), 359, Mich 410, to confessional testimony of an accomplice, because nothing appears of record to show that Miller was illegally detained or, if so, that it was for the purpose of extracting a confession. We need go no further, inferring nothing as to the merits of the question."
In view of People v. Treichel, supra, and absent precedent for extending the rule in People v. Hamilton, supra, to confessional testimony of an accomplice, we decline to extend it.
2. Was the evidence sufficient to convince beyond a reasonable doubt?[3]
The trial court, in ruling on defendant's motion for new trial, indicated that in his opinion the prosecution probably would not have been able to obtain a conviction against defendant without Payne's testimony.
However, in addition to Payne's testimony, 2 police officers identified defendant at trial as 1 of the 2 gunmen. Although defendant sought to discredit their testimony by cross-examination, the credibility of the witnesses was within the province of the jury and therefore we conclude that the evidence if believed by the jury was sufficient to convince beyond a reasonable doubt.
3. Does the newly discovered evidence (Payne's recanting affidavit) entitle defendant to a new trial?
This Court has quoted People v. Smallwood (1943), 306 Mich 49, 55 on several occasions for the proposition that a "court is not impressed by the *703 recanting affidavits of witnesses who attempt to show that they perjured themselves at the trial." People v. Dailey (1967), 6 Mich App 99, 102; People v. Miniear (1967), 8 Mich App 591. The trial judge, even though the recanting witness was not produced on the hearing of the motion for new trial,[4] was able to form an opinion of the weight to be given the recanting affidavit. In denying the motion for new trial the trial court commented as follows:
"He [LeRoy Payne] informed me in open court that he had done wrong, and that they [Payne and defendant] had done wrong. * * *
"Another thing, his statement [the recanting affidavit] that he lied when he testified that Bradford was with him is not substantiated by his telling who was, and that is a very crucial point in my opinion, in whether or not he is to be believed now, or what he said under oath at the trial."
We concur in the trial court's opinion and note that in the Smallwood Case the recanting witness named 2 other persons in asserting the innocence of the defendant.
Also of interest is the fact that Payne's recantation is dated August 31, 1965, evidencing a lapse of more than 2 years. Because of this fact, Payne's allegations in the recanting affidavit of being "afraid for my life" and "fear of further torture or death" *704 while incarcerated in Berrien county during defendant's trial compelled his implicating of defendant, are subject to disbelief.
4. Does the prosecutor's elicitation of defendant's prior criminal record as alleged by defendant require a new trial?
On re-direct examination of Officer Yost, one of the identifying police officers, the prosecutor entered into the following colloquy:
"Q. Now, officer, in connection with your police work over the years, had you previously come in contact with the defendant, Lionel Bradford?
"A. I have.
"Q. And do you recall how long ago or on how many occasions?
"A. Well, it was several years ago on the armed robbery that he was on.
"Q. And you worked that case?
"A. I was one of the officers that worked it.
"Q. Were you one of the officers that worked that case?
"A. Yes.
"Q. And at that time you came in contact with the defendant?
"A. I did.
"Q. Do you recall how long a period of time, or how many times you might have seen him during that time?
"A. I seen him quite a few times.
"Q. And have you subsequently come in contact with him in your police work?
"A. Yes.
"Q. Can you tell the court and jury I realize this is a hard question, but I think it's a fair question approximately how many times over the period of your police work have you come in contact with Lionel Bradford?
"A. You mean other than the armed robbery he was on?
*705 "Q. No, altogether, including that incident.
"A. Oh, I have seen him a dozen times or more."
Defendant contends that this examination is error constituting a denial of due process and requires a new trial. He also contends that defense counsel's failure to object did not constitute a waiver and cites Henry v. Mississippi (1965), 379 US 443 (85 S Ct 564, 13 L Ed 2d 408) in support of his contention.
Examination of the trial transcript reveals that defense counsel opened the door on cross-examination to the above-quoted colloquy between the prosecutor and Officer Yost as follows:
(By defense counsel)
"Q. Now, Officer Yost, isn't it true that before this shooting incident you knew LeRoy Payne? That is, the one that jumped out of the driver's side and shot you? You knew him before that, didn't you?
"A. Knew of him.
"Q. And you had seen him around town?
"A. Yes.
"Q. And you also knew Mr. Bradford before this shooting incident, didn't you?
"A. I did.
"Q. And you had had occasion to see him around town?
"A. I had."
The fact that Officer Yost knew defendant prior to the date of the crime charged was first brought out by defense counsel. It appears that this was a deliberate trial tactic on his part, i.e., defense counsel weighed the advantages and disadvantages of his questioning Officer Yost and decided he would rather emphasize to the jury that the defendant was well known to the police officers prior to the crime charged as against the possibility that the jury might become aware of the fact that defendant had *706 previous contact with the police. Henry v. Mississippi, supra, although dealing with admission of illegally obtained evidence, is analogous and provides in headnote 9 of Lawyers Edition an answer to the violation of due process alleged by defendant.
"If an accused's counsel in a State prosecution deliberately chooses not to object to illegally obtained evidence in the hope of discrediting the witness and thereby persuading the jury to acquit, or in the hope of inviting error and laying the foundation for a subsequent reversal, his conduct amounts to a waiver binding on the accused and precluding the accused from a decision either in the State courts or in the United States Supreme Court on the merits of his Federal claim regarding the admission of the evidence."
We also find that the questioning by the prosecutor was not intended to bring out any past criminal record of defendant. It appears to have been done with good intentions to bolster proof of the officer's ability to recognize defendant. Defendant has failed to make a sufficient showing to this Court that he did not actually intend to waive any Federal right against this alleged introduction of a prior criminal record by a failure to object. It is inconceivable that defense counsel was taken by surprise by the prosecutor's line of questioning the Michigan law regarding introduction of prior criminal records is not unknown. Henry v. Mississippi, supra. Finally, error, if any, was rendered harmless because defendant subsequently took the witness stand and testified in detail of his prior criminal record.
5. Do all or any one of the following claimed errors require the granting of new trial?
A. The trial court's refusal to allow the introduction in evidence of photographs showing witness Payne's face after he had been beaten.
*707 Payne testified on direct examination to abusive treatment, including facial beatings, in detail:
"Q. Then what happened?
"A. He started beating me in the face.
"Q. He struck you?
"A. Yes, sir. * * *
"Q. Were you bruised?
"A. Yes, sir.
"Q. Did you have a black eye?
"A. Both my eyes were black, sir.
"Q. Did you have a cut under your right eye?
"A. Yes, sir."
"The question of admissibility of photographs rests largely in the discretion of the trial court." 23 CJS, Criminal Law, § 852 (1), p 345.
No clear abuse of discretion by the trial judge having been shown, we conclude the ruling to have been a proper one.
B. The admission of medical testimony describing the nature and location of the wounds received by the police officers.
Defendant made no objection at trial to the testimony now alleged to be prejudicial. Objections not raised during trial and passed upon by the trial court will not be heard in this Court, when raised for the first time on appeal. See People v. Doverspike (1966), 5 Mich App 181, 191, and cases there cited. 23 CJS, Criminal Law, § 868, p 428 states as follows:
"A physician, or other qualified person, who examined the body of a wounded or injured person may testify as to the location or character of the wound or injury, the direction or course of a bullet in or through the body, or the possible or probable cause of the wound or injury."
*708 We find no error as regards the medical testimony describing the nature and location of the wounds received by the police officers.
C. An instruction indicating a test of proof of the term "beyond a reasonable doubt" to be whether there exists such a doubt as would cause the jurors to hesitate when acting in the graver and more important affairs of life.
This instruction was proper, having been approved by our Supreme Court in People v. Powers (1918), 203 Mich 40, 44.
D. A statement by the prosecutor indicating that gloves may have been worn by one of the gunmen and questions by the prosecutor on cross-examination of defendant about "drag racing" and defendant's relationship with a "common-law wife."
Defendant made no objection at trial to the statement and questions now alleged to be prejudicial. Evidence admitted is presumed to have been lawfully admitted in prosecution for a crime, where no proper objections were made at the trial. People v. Jury (1966), 3 Mich App 427.
In the instant case we have recognized that the officers brutally assaulted witness Payne who was being held on the same charge. We are compelled to condemn such conduct on the part of the officers. This conduct violates the law and is degrading and obnoxious to the administration of justice. People v. Treichel, supra, p 312.
Affirmed.
BURNS and J.H. GILLIS, JJ., concurred.
NOTES
[1] CL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278).
[2] "Now, as I have told you, you are the sole judges of the credibility of the witnesses, and I charge you that the testimony of a self-accused conspirator or an accomplice should be carefully scrutinized to ascertain whether it is corroborated by other testimony or other witnesses or circumstances, for the weight which you should give it depends upon the extent to which it is corroborated. Such testimony should be received by you with utmost caution and care, because the interest of such witness in the outcome of the trial and the desired result may color or shade his testimony.
"The defense may prove the expectation of gain of any witness for the prosecution whether founded upon agreement of the prosecutor or not, under which the witness for the prosecution testified, and if the defense have made a showing that there is such expectation of gain, the testimony of such witness for the prosecution must be received with great caution, and you alone are the sole judges of the credibility of the witnesses and the weight which is to be given to their testimony, and you are not to be guided or influenced in any manner in forming your opinion as to the guilt or innocence of the defendant by anything outside of the testimony in the case."
[3] The proper standard of proof in criminal cases. People v. Williams (1962), 368 Mich 494; People v. Washington (1966), 4 Mich App 453, 456; People v. Fred W. Thomas (1967), 7 Mich App 519, 539; People v. Cronk (1968), 9 Mich App 606.
[4] The record contains a stipulation stating as follows:
"1. The affidavit of LeRoy Payne previously filed in support of defendant's motion for new trial may be considered by this court with the same force and effect as though LeRoy Payne were testifying before this court. Said affidavit is an accurate representation of what LeRoy Payne would testify to if he were actually called.
"2. Their presence not being required and their return from Ionia, Michigan and Jackson, Michigan respectively being an unnecessary expense to the people of the State, it is stipulated that for the purposes of defendant's motion for new trial that neither defendant nor the people shall cause the aforesaid LeRoy Payne or defendant to be called as a witness or returned to Berrien county for the purposes of this motion for new trial."