People v. Howard , 391 Mich. 597 ( 1974 )

M. S. Coleman, J.

Defendant is appealing a jury verdict finding him guilty of armed robbery. This was affirmed by the Court of Appeals in an unpublished opinion. People v Howard, No. 13083 (1973).

The incident occurred on December 3, 1970 at the O’Mack Bar in Detroit. Two men committed the robbery. One was armed with a pistol, the other with a sawed-off shotgun. The patrons were made to lie on the floor and surrender their valuables.

On December 18th, an automobile was stopped because it was being driven without lights after dark and was on the wrong side of the street. Defendant was a passenger in the rear seat. The driver had a sawed-off shotgun standing between his legs, the butt of the gun resting on the floor. Defendant subsequently was arrested for the armed robbery of the O’Mack Bar.

The first witness at trial, a barmaid, identified defendant as being the robber holding the shotgun. She had previously identified him in a lineup. When shown the shotgun, at first she identified it as the one used in the robbery and on further examination, she said it looked like the one used in the robbery.

The next witness, a customer, also made an in-court identification of defendant as being the man with the shotgun. He said that he thought the shotgun taken from the car was approximately four inches longer than the robbery weapon. A second barmaid identified defendant. She testified that the shotgun was similar to the one used in the robbery. Another employee gave similar testimony. She also recalled identifying defendant when shown some photographs after the robbery.

The fifth witness was a customer. He identified defendant as the robber with the shotgun. When shown the weapon he said it was similar to the one used in the robbery. Another customer could not positively identify defendant but he did say the shotgun was similar to the robbery weapon.

The next witness identified himself as the robber who was holding the pistol. He identified defendant as being his partner in this particular crime. He said defendant used a sawed-off shotgun. When shown the weapon produced in court, he said it was similar to the robbery weapon.

. Following this testimony the jury was excused and a separate record was made to determine if the shotgun should be admitted into evidence. One of the arresting officers testified regarding the aforementioned circumstances of the arrest, also including the fact that the two in the back seat of the car ducked down when the police approached. The prosecutor and defendant’s attorney presented arguments and briefs. After deliberating overnight, the court ruled in favor of admissibility.

When the jury was returned, the arresting officer testified. The prosecution moved to introduce the weapon. Defendant’s counsel objected. After admitting the evidence, the court, without request, cautioned the jury as follows:

"There has been no testimony that this is the sawed off shotgun. Now, you will remember that. So I am admitting that gun into evidence for your consideration; it is up to you to determine under the facts and circumstances of the arrest, and who was arrested at the time, and what was found; you will assess the weight that you will give to that Exhibit in this case.”

Defendant presented one witness. His mother-in-law said he spent the night of the robbery in her house.

In the Court of Appeals defendant alleged two instances of reversible error. He said the trial court did not give correct instructions regarding the alibi defense. There was no objection to the instructions at trial. The Court of Appeals noted the judge’s frequent references to the prosecutor’s duty to prove all elements of the offense and the defendant’s involvement beyond a reasonable doubt. The Court of Appeals noted the judge’s frequent reminders that the defendant was not obligated to prove anything. The Court of Appeals was "satisfied the jury understood that this defendant’s alibi defense need only to have raised a reasonable doubt to justify acquittal”. We are convinced there was no error in the instructions.

Also challenged was the court’s admitting the shotgun into evidence. The Court of Appeals said that the shotgun

"was sufficiently connected with the offense for which defendant was on trial to warrant its introduction into evidence. The fact that the sawed off shotgun was not specifically identified as the weapon used in the robbery but was only identified as being similar to the one used in the robbery goes to the weight of the evidence and not its admissibility.”

Leave to appeal was granted 389 Mich 807 (1973).

Defendant has made two attacks concerning admission of the shotgun. He claims the evidence was irrelevant because it was not found in defendant’s possession nor was it specifically identified as the robbery weapon. Even assuming that the gun was admissible, defendant claims its prejudicial effect was so great that it was an abuse of discretion to admit it.

How are we to evaluate the relevancy of the proffered evidence? Defendant has cited this passage by Justice Cooley in Stewart v People, 23 Mich 63; 9 Am Rep 78 (1871) concerning the use of impeachment evidence:

"The proper test for the admissibility of evidence ought to be, we think, whether it has a tendency to affect belief in the mind of a reasonably cautious person, who should receive it and weigh it with judicial fairness.” (p 75.)

Justice Cooley further said the judge "ought to be allowed a reasonable discretion in such cases” which "ought not to be set aside except in a cleár case of abuse”, (p 76.)

This preeminent jurist understood the difficulty of trying to devise a mechanical test for determining relevancy. The trial judge must draw upon his own wisdom and experience in making a decision. It is not within the role of the appellate courts to second-guess such judgment. They should intervene only when clear abuse is shown.

Our statutes and court rules reflect this conclusion. MCLA 769.26; MSA 28.1096 says in part:

«No * * * verdict shall be * * * reversed or a new trial granted by any court of this state in any criminal case on the ground of * * * improper admission or rejection of evidence * * * unless in the opinion of the court, after examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

Also see GCR 1963, 529.1.

In the instant matter, the trial judge heard the testimony, saw the witnesses, listened to arguments and read the briefs. He decided that the shotgun should be admitted. He told the jury, in effect, to "receive it and weigh it with judicial fairness”. Compare People v Kelly, 386 Mich 330; 192 NW2d 494 (1971).

Defendant argues that the shotgun was not relevant and, if relevant, that the probative value of the otherwise admissible evidence was outweighed by its prejudicial effect. It also has been argued that its probative value in this instance amounts to little or none at all in light of the several positive identifications and other strong testimony which almost certainly would have led to defendant’s conviction without admission of the gun into evidence.

' The fact that defendant had access to a sawed-off shotgun which at a minimum was similar to the one used in the commission of the crime is adequate at least to establish relevancy.

The argument that proof of access to the shotgun tagged defendant as a "bad boy” and therefore was prejudicial to a fair trial is also of flimsy fabric. Although it is conceded that the probative value was not conclusive, there was real probative value in the evidence that the defendant was identified as the robber with a shotgun and he did have access to a sawed-off shotgun which was similar to and could have been the one used by defendant at the time of the robbery. As the judge properly instructed immediately upon admission of the gun, the jury was to give the evidence whatever weight it deemed appropriate.

It further is noted that no objection was made during the showing of the gun to the various witnesses and the questioning regarding identification of the gun. Only after the completion of the testimony and a motion to admit into evidence was there a motion to suppress. By this time, whatever prejudice may have flowed from the gun was a fait accompli. The technical hurdle of admission was accompanied by the judge’s statement that there had been no testimony that this "is” the sawed-off shotgun. It was relevant and was submitted for jury consideration and assessment of weight.

Prejudice is not borne out by facts. Indeed, one of defendant’s arguments is that there were so many positive identifications, including that of the other man admittedly with defendant in the perpetration of the armed robbery, that the evidence of the shotgun was not needed at all for conviction. In other words, defendant contends that the prosecutor was guilty of "overkill”.

Argument is made that such evidence might have had sufficient probative value had it been part of a chain of circumstantial evidence, but was not necessary here.

On the face of it, this theory is subject to some limitations and use of discretion if it is not to become "form without substance”. For instance, if such evidence is to be used in a weak case against the defendant but not in a strong case, we could distort the reflection of justice.

Practically speaking, the prosecutor normally does not have the gift of "second sight”. He cannot gauge before trial exactly what identification testimony will be forthcoming (as of the subject shotgun and of the defendant himself). He cannot predict with exactitude what will bring the jury to the conclusion of guilt beyond a reasonable doubt or tip the scales to acquittal. He must bring all possible evidence which, if admitted, must be weighed against all other evidence. It would be unreasonable under the facts of the instant case to require the prosecutor (1) to know in advance the nature of the identification testimony and (2) then to assess its probative value in the last analysis as against its prejudicial value and (3) to make judgment as to whether the case is strong enough to stand without the exhibit. We must concede that the prosecutor must present all of the evidence known to him.

The burden then falls upon the judge to control the introduction of evidence, to assess the total of trial facets and use discretion. As stated, in the content, context and posture of this case, the judge did not abuse that discretion in submitting the gun for the consideration of the jury. Indeed, an argument might have been made that the instruction to the jury was overly favorable to the defendant in light of the testimony of one witness at least that the gun was the one used in the robbery and of the others that it looked like the one used. Certainly, no one would expect them to have closely inspected the gun under the circumstances. We conclude that both the prosecutor and the judge performed their functions in a manner which requires affirmance by this Court.

This is an appropriate occasion to speak also of the role of the truth in judicial proceedings. The constitutional guarantees to persons coming into our system of justice were designed to develop the true facts of any given situation. Procedures have developed over the years towards orderly means of insuring the truth. Occasionally, the target of these procedures and rules is obscured by webs of split hairs and the constitution is subrogated to a play of words or "gamesmanship”. On the other hand, there are occasions when there is something in a trial "so offensive to the maintenance of a sound judicial process that it never can be regarded harmless”. People v Mobley, 390 Mich 57; 210 NW2d 327 (1973).

In this case, the truth is apparent.

Defendant was properly and fairly tried. The Court of Appeals is affirmed.

Swainson, J., concurred with M. S. Coleman, J. T. M. Kavanagh, C. J., and Williams, J., concurred in the result of the opinion by M. S. Coleman, J.