People v. Coles

¶1(dissenting). After a jury trial conviction for armed robbery, MCLA 750.529; MSA 28.797, defendant was sentenced to serve 15 to 25 years in prison. I would grant a new trial.1

¶2Defendant was jointly charged with two others with the armed robbery of a Sunshine Dairy Store in Flint on June 20, 1975. Defendant and codefendant Darnell Welsh, through their counsel, participated in the selection of a single jury. After the jury selection was completed, but before any witnesses were sworn, Welsh changed his plea to guilty. Welsh later testified before the same jury he had helped select, concerning his and defendant’s involvement in this robbery. At no time did the court instruct the jury that Welsh’s plea of guilty was to play no part in their deliberations on defendant’s guilt.2

¶3*271The potential prejudice which can result from a codefendant’s plea of guilty after a jury has been selected is obvious, especially where the prosecution charges that the pleading defendant and the remaining defendant were acting together. Hudson v North Carolina, 363 US 697; 80 S Ct 1314; 4 L Ed 2d 1500 (1960). When a codefendant changes his plea after participating in the selection of a jury and later testifies before that same jury, I would require the trial court to instruct the jury that the plea of the codefendant is not to be considered in determining the guilt of the remaining defendant or defendants if a request is made. A failure to give such an instruction, because of the substantial danger that the jury will infer the guilt of the remaining defendant from such a plea, deprives defendant of the right to an impartial jury to which he is constitutionally entitled. Const 1963, art 1, § 20.

¶4A similar rule applies in the Federal circuits. Although it is not necessary to declare a mistrial and discharge the jury, the court must instruct the jury on the effect of the codefendant’s plea. United States v McCord, 166 US App DC 1, 13, n 35; 509 F2d 334, 346, n 35 (1974), cert den, 421 US 930; 95 S Ct 1656; 44 L Ed 2d 87 (1975), United States v Dardi, 330 F2d 316, 333 (CA 2, 1964), cert den, 379 US 845; 85 S Ct 50; 13 L Ed 2d 50 (1964), United States v Aronson, 319 F2d 48 (CA 2, 1963), cert den, 375 US 920; 84 S Ct 264; 11 L Ed 2d 164*272(1963), United States v Johnson, 451 F2d 1321 (CA 4, 1971), cert den, 405 US 1018; 92 S Ct 1298; 31 L Ed 2d 480 (1972), Fahning v United States, 299 F2d 579 (CA 5, 1962), Bearden v United States, 403 F2d 782 (CA 5, 1968), cert den, 393 US 1111; 89 S Ct 920; 21 L Ed 2d 808 (1969), United States v Kahn, 381 F2d 824 (CA 7, 1967), cert den, 389 US 1015; 88 S Ct 591; 19 L Ed 2d 661 (1967), Nemec v United States, 178 F2d 656 (CA 9, 1949), cert den, 339 US 985; 70 S Ct 1006; 94 L Ed 1388 (1950), Osborne v United States, 371 F2d 913 (CA 9, 1967), cert den, 387 US 946; 87 S Ct 2082; 18 L Ed 2d 1335 (1967). See also Brant v Scafati, 301 F Supp 1374, 1379 (D Mass, 1969), People v Sherman, 127 Cal App 2d 230; 273 P2d 611 (1954), People v McNaspie, 261 App Div 657; 27 NYS2d 906 (1941).

¶5The failure to instruct in this case was error even though no request was made. Defendant presented alibi testimony from five witnesses. Two witnesses placed defendant at the robbery; the manager of the store which was robbed and defendant’s former codefendant. But, their testimony was considerably weakened on cross-examination. The jury deliberated for several hours. over two days and did not reach a verdict until the manager’s testimony was reread. Given these circumstances it cannot be said that the failure to instruct on the effect of Welsh’s plea of guilty did not result in a manifest injustice.

¶6One other issue merits brief discussion. During the direct examination of the manager of the store, testimony was elicited showing that the second man to enter the store, allegedly the defendant, was wearing a leopard-skin patterned T-shirt and black slacks. On cross-examination, the description of the second person to enter the store was expanded but the description of his clothing *273did not vary. The manager was never asked if he had given any description of the robbers to the police.

¶7On direct examination of the officer who answered the report of an armed robbery, the prosecutor attempted to elicit whether the manager had given a description of the robbers on the night in question. Over defense counsel’s objection, he was allowed to testify that the manager had told him that the second man to enter the store was wearing a leopard-skin T-shirt and black pants.

¶8The officer’s testimony was inadmissible. A prior consistent statement of a witness is admissible if the witness is impeached by a prior inconsistent statement and there is some question as to whether that prior statement was made. Stewart v People, 23 Mich 63; 9 Am Rep 78 (1871). But, until the manager’s description of the robber’s clothing was drawn into question, the officer’s testimony represented an uncalled-for attempt to bolster his credibility. People v Hallaway, 389 Mich 265, 276; 205 NW2d 451 (1973) (opinion of Brennan, J.).

¶9In this case the description of the robber’s clothing was not seriously challenged. What was disputed was whether defendant owned or was ever seen wearing such clothing. The officer’s repetition of the description was therefore not prejudicial because he did not link the defendant to this clothing.