People v. Hood

Full title: PEOPLE v. HOOD

Court: Michigan Court of Appeals

Date published: Mar 30, 1970

23 Mich. App. 93 (Mich. Ct. App. 1970)

178 N.W.2d 125

Opinion

Docket No. 7,205.

Decided March 30, 1970.

Appeal from Oakland, H. Russell Holland and Arthur E. Moore, JJ. Submitted Division 2 March 3, 1970, at Lansing. (Docket No. 7,205.) Decided March 30, 1970.

Victor Leroy Hood was convicted of armed robbery. Defendant's motion for a new trial denied. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.

Richard P. Condit, for defendant.

Before: J.H. GILLIS, P.J., and DANHOF and O'HARA,^_ JJ.

_ Former Supreme Court Justice sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

PER CURIAM.

In 1960 defendant and a codefendant, Carroll Lay, were tried jointly for robbery armed, CLS 1961, § 750.529 (Stat Ann 1970 Cum Supp § 28.797). Out-of-court statements by Lay which implicated the defendant were admitted over objection by the defense counsel. The trial court properly charged the jury that it could not consider such statements as evidence against Hood. Lay was acquitted, but the defendant was convicted and sentenced to a term of 30 to 50 years in prison.

An application for delayed appeal was filed April 17, 1968, and on July 23, 1968, this Court ordered the case remanded to the trial court for a consideration of defendant's motion for a new trial in light of Bruton v. United States (1968), 391 U.S. 123 ( 88 S Ct 1620; 20 L Ed 2d 476) and Roberts v. Russell (1968), 392 U.S. 293 ( 88 S Ct 1921); 20 L Ed 2d 1100) reh den 393 U.S. 899 ( 89 S Ct 73; 21 L Ed 2d 191).

The lower court held that the decisions in Bruton and Roberts did not require that defendant be granted a new trial and, accordingly, denied defendant's motion.

In Bruton the court held that, despite instructions to the jury to disregard the implicating statements in determining the codefendant's guilt or innocence, admission at a joint trial of a defendant's extrajudicial confession implicating a codefendant violated the codefendant's right of cross-examination secured by the confrontation clause of the Sixth amendment. The Roberts case held that Bruton is to be applied retroactively to both Federal and state prosecutions.

In the present case codefendant Lay took the stand and was cross-examined extensively not only by defendant Hood's attorney, but also by the prosecuting attorney. Thus, it is distinguishable from the Bruton and Roberts cases because the requirement of confrontation was fulfilled. See People v. Patton (1968), 15 Mich. App. 198, 201.

Affirmed.