Opinion
Docket No. 24823.
Decided January 17, 1977.
Appeal from Delta, Clair J. Hoehn, J. Submitted October 13, 1976, at Marquette. (Docket No. 24823.) Decided January 17, 1977.
Larry G. Barbeaux was convicted of committing statutory rape. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Tony I. Marcinkewciz, Prosecuting Attorney, and Mark I. Leach, Assistant Attorney General, for the people.
Stephen T. Davis, for defendant.
On April 30, 1975, defendant was convicted of committing statutory rape, MCLA 750.520; MSA 28.788, which has been repealed. This was the second trial for this offense, the first one resulting in a mistrial. Following sentence, defendant appeals as of right raising two issues for our consideration.
Defendant claims, and we agree, that the trial judge abused his discretion in denying defendant's motion to sequester witnesses. People v Insley, 36 Mich. App. 593; 194 N.W.2d 20 (1971). However, after a thorough reading of the entire transcript, we find this error to be harmless. People v Erb, 48 Mich. App. 622; 211 N.W.2d 51 (1973).
Although the second trial was not a duplicate of the first, many of the witnesses testified at both trials, including one of the two girls alluded to in the dissenting opinion, and the testimony is substantially identical. People v Williams, 6 Mich. App. 412; 149 N.W.2d 245 (1967).
Defendant's second claim of error is that certain testimony concerning the selling of marijuana by defendant and "pot parties" held in defendant's home resulted in prejudicial error. We are of the opinion that this testimony did not assist any juror in the formation of a guilty verdict. People v Swan, 56 Mich. App. 22, 33; 223 N.W.2d 346 (1974), lv den, 395 Mich. 810 (1975). In any event, it is clear from the record that the testimony regarding "parties" was brought out by the defense and that the prosecutor merely asked several more permissible questions on re-direct. See People v Wright, 41 Mich. App. 518; 200 N.W.2d 362 (1972). The probative value of the testimony was merely part of the res gestae of the crime and was admitted solely to assure the jury that all of the pertinent information and evidence was before the jury so that they could comprehend the entire picture as one continuing operation. People v Nawrocki, 376 Mich. 252; 136 N.W.2d 922 (1965). Although the trial judge should have given a cautionary instruction in his final instructions as to both the "pot parties" and sale of marijuana, one was not requested by the defendant's counsel. There being no absolute requirement that such a limiting instruction be given, the failure to so request results in a waiver.
Affirmed.
W.P. HAMPTON, J., concurred.
I agree with the majority that the trial judge abused his discretion in denying defendant's motion to sequester the witnesses. People v Insley, 36 Mich. App. 593; 194 N.W.2d 20 (1971). However, I disagree with the majority's finding of harmless error.
The justifications advanced for holding an abuse of discretion by the trial judge to sequester witnesses to be harmless error have been that the witnesses involved testified substantially the same at the preliminary examination as they did at trial, People v Williams, 6 Mich. App. 412; 149 N.W.2d 245 (1967); or that there was no major dispute among the prosecution's witnesses concerning the alleged crime, relative to defendant's behavior. People v Insley, supra.
In the present case the defense was alibi. One of the two key prosecution witnesses, 14-year-old girls, did not testify in the previous trial that was declared a mistrial, nor did both witnesses testify at the preliminary examination. The credibility of these witnesses was the crux of defendant's case. Although there was no major dispute in the testimony among the prosecution's witnesses, there were discrepancies. The trial court's failure to exclude the witnesses created the opportunity, at least arguably, for the witnesses to bolster each other's testimony. To require a showing by defendant that the failure to sequester the witnesses resulted in such prejudice that the jury would have reached a different result as suggested by Insley, supra, is impossible. Rather, the better approach is that an error is not harmless if it is reasonably possible that in a trial free of the error complained of, one juror might have voted to acquit the defendant. See People v Christensen, 64 Mich. App. 23, 32-33; 235 N.W.2d 50, 55 (1975). Under the circumstances of the present case, I cannot say that the trial judge's error was harmless beyond a reasonable doubt. See People v Robinson, 386 Mich. 551, 562-563; 194 N.W.2d 709 (1972).
A panel of this Court has recently addressed this issue also by split decision, People v Cutler, 73 Mich. App. 313; 251 N.W.2d 303 (1977).
Also, if this case were to be retried I would instruct the trial judge to exclude the references to pot parties and sale of marijuana unless the defendant is charged with and tried for controlled substance violations or contributing to the delinquency of minors.
I would reverse defendant's conviction.