aiding and abetting a felon in michigan

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Aiding and abetting a felon in michigan

Significantly, the Michigan rules offer broader double jeopardy protection than do the federal standards. Whitton v State, P2d Alas, As do their federal counterparts, Michigan courts engage in a greater- and lesser-included-offense analysis to evaluate double jeopardy challenges. However, in Michigan the emphasis is not on the theoretical elements of the crimes involved, but rather upon the proof of facts adduced at trial:.

Of course, in focusing upon the facts, a court must nevertheless still take account of the elements of the offense. People v Wilder, Mich , , fn 10; NW2d In addition, Michigan has an expansive definition of necessarily included offenses for double jeopardy and other[27] purposes:. The fact that a lesser offense contains an element not also contained in the greater does not necessarily preclude the lesser from being included within the greater. Further, cognate offenses include common statutory purposes as well as common elements; and, the shared elements must be related to those purposes, i.

Ora Jones, p Thus, in contrast to the test used in the federal system, the Michigan test for double jeopardy focuses on the facts of the particular case and proscribes multiple convictions of cognate as well as necessarily included offenses. The Michigan analysis has been applied by this Court to preclude dual convictions of possession and delivery of the same heroin, where the possession was necessarily incident to delivery.

People v Martin, Mich ; NW2d Reaching the same conclusion with respect to the sale and possession of the identical heroin in People v Stewart On Rehearing , Mich , ; NW2d 31 , we explained:. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin. People v Jankowski, supra. Further, he argues, the facts introduced at trial to demonstrate aiding and abetting necessarily proved the crime of conspiracy and vice versa, i.

We disagree. Initially we note that aiding and abetting the commission of extortion and conspiracy to commit extortion do not satisfy the definition of cognate offenses set forth in Ora Jones, supra. Although both crimes involve concerted activity, the offenses are not of the same class or category. Nor do they appear to reflect a common statutory purpose. The conspiracy statute punishes the planning of the offense and focuses upon the alleged "special dangers" resulting from group action.

On the other hand, the aiding and abetting statute punishes the actual commission of the crime. In addition, on the facts of this case, neither crime was necessarily included within the other. Stewart, p And, proof of either crime did not necessarily require a finding of the other.

In applying the Michigan "factual" double jeopardy test, it is critical to recognize the distinction between what a jury could or did conclude from the evidence and what a jury necessarily found. Thus, in the instant case, when the jury found the defendant guilty of aiding and abetting Kimble in the commission of extortion, it did not thereby find sufficient facts to find him guilty of conspiracy.

Carter's participation in the crime was demonstrated at trial by testimony that he had composed the threatening letter in Kimble's room at the Sewell Hotel, met Kimble after the robbery, and divided the money. However, these facts do not necessarily presuppose or establish an agreement to commit the extortion, the indispensable element of conspiracy.

Establishing the agreement required a completely separate inference, or a separate factual finding. Further, unlike the situation in Martin and Stewart, where the delivery and sale could not have taken place without the possession, in the instant case, the aiding and abetting could have occurred without the conspiracy. By the same token, the jury was not required to find defendant guilty of aiding and abetting the extortion based on proof that he conspired with Kimble to commit it.

Certainly the aiding and abetting was not a "necessary prerequisite or the sine qua non" of the conspiracy. In addition, proof of the conspiracy in this case was not sufficient to establish aiding and abetting. Even if the jury used the same facts as a starting point for finding defendant guilty of both charges, an additional fact is required to support a conviction of aiding and abetting, i.

In that sense, the instant case differs significantly from other cases in which this Court has found double jeopardy violations. In Martin and Stewart, once the delivery and sale were found, the possession was established without further proof. On the facts in Jankowski, when the jury found that the defendant had committed the taking which constituted an element of the armed robbery, the jury necessarily found, without additional evidence, the facts sufficient to convict on the larceny charges.

Finally, the factual pattern in the instant case may have allowed the jury to convict defendant of both crimes on the basis of completely different facts. Edward Kimble testified that he met with defendant Carter on two different occasions on December 18, the day before the robbery. According to Kimble, he and Carter discussed the "Consumers Power job" on the afternoon of December The jury could have believed Kimble's entire testimony, and concluded that the agreement was consummated in the first meeting, making the crime of conspiracy complete.

It could then have found the more active participation required for liability as an accessory in the events of the evening meeting at the Sewell Hotel. In sum, it was both factually and logically possible for defendant to be guilty of either crime in the case aiding and abetting the commission of extortion and conspiracy to commit extortion without at the same time being guilty of the other.

These crimes are factually and theoretically independent; they are neither inseparably intertwined, cf. In the instant case, this statement describes the facts as well as the law. In a further challenge to his conviction, defendant contends that the trial court erred in refusing to grant a new trial, despite the prosecutor's failure to indorse and produce a res gestae witness. Penney store located across the street from the Consumers Power office. According to Morris's affidavit filed in support of defendant's motion for a new trial, and also his testimony at the evidentiary hearing[34] to consider that motion, on two different occasions prior to December 19, , he noticed a black male standing in the lobby between the inside and outside doors of his store, staring at the Consumers Power building.

On each occasion, the man stayed for 10 or 15 mintues before leaving. Morris stated further that on the morning of December 19, he again saw the same black male come into the lobby and watch the building across the street for approximately 15 minutes. Morris testified that he went out to lunch at 11 a. When the same black male, subsequently identified as Edward Kimble, appeared in the store the day after the robbery, Morris called the police, who made the arrest. In his affidavit, Morris explained that he had noticed this particular black male because he was afraid that the man might be planning to rob the J.

Penney store. On all three occasions, the man appeared to be alone. Before trial, defense counsel filed a general demand for exculpatory evidence. He subsequently filed several specific motions for discovery, and received the particular evidence requested. Defense counsel first learned of his existence when he reviewed the presentence report following defendant's trial and conviction.

In denying defendant's motion for a new trial, the trial judge ruled that Morris was not a res gestae witness, and that further, in view of the "very persuasive" evidence of defendant's guilt, the failure of the jury to hear his testimony did not affect the outcome at trial.

The people have an affirmative duty to indorse and produce at trial all res gestae witnesses. While no precise definition of the term has been developed, a res gestae witness has been loosely described as "an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense".

The defendant argues that Morris's testimony would "aid in developing a full disclosure of the facts" by contradicting Edward Kimble's testimony in two important respects. First, Kimble indicated, in essence, that the conspiracy began on the afternoon of December 18, when he and Carter discussed the Consumers Power job. However, Morris's statements reveal that some time before that date, Kimble was seen staring at the Consumers Power building from across the street.

Second, Kimble testified that "one day" he and Carter surveyed the proposed scene of the crime from the sidewalk. Thus, defendant concludes, Morris is a witness who can attest to a crucial fact, i. Morris's statements do not necessarily contradict the prosecutor's case. The fact that Morris saw only Kimble does not require the conclusion that Kimble was surveying the robbery scene alone.

Carter could have easily been present, outside Morris's range of vision. Further, the fact Kimble may have been seen near the Consumers Power office before December 18 is not relevant to any involvement of Carter in the conspiracy. More importantly, even in terms of the "continuum of the criminal transaction", Morris is simply too far removed from the criminal event to be denominated a res gestae witness.

Morris was not an eyewitness to the crime; moreover, he never even saw the defendant until approximately two years after the crime. In those cases in which individuals were found to be res gestae witnesses in spite of the fact that they did not observe the actual commission of the crime, the connection between what was observed and the criminal event was much closer than in the instant case.

In People v Hadley, supra, the witness observed the defendant, a suspicious-looking person, in a parking lot just a few minutes before the defendant broke into an automobile. The witness's phone call led directly to the defendant's arrest, and the court found that he qualified as a res gestae witness.

Defendant challenges the prosecutor's failure to indorse and produce Larry Morris from another perspective. Because the government's ability to investigate and uncover information is superior to the defendant's, the adversary process has been somewhat modified in the criminal trial context. Focusing upon the unfairness of this disparity and also upon the affirmative duty of the prosecution to ensure that a trial is directed toward fair ascertainment of the truth,[36] the United States Supreme Court has held that a defendant has a due process right of access to certain information possessed by the prosecution.

The prosecution may not suppress evidence requested by the defendant where the evidence is favorable to the accused and material to his guilt or punishment. It identified three different situations in which a defendant's due process right to discovery may be implicated. In the second type of situation, illustrated by Brady, supra, where a specific request for a piece of evidence is made, the test for reversal is whether "the suppressed evidence might have affected the outcome of the trial".

Footnote omitted. Quite often, however, as in the instant case, a third type of situation occurs: the defendant has no knowledge of exculpatory material possessed by the prosecutor, and, therefore, cannot make a specific request. In these circumstances, where defendant can only make a general request for exculpatory information, or, in fact makes no request at all,[37] the standard for what is in effect a voluntary disclosure is more difficult to meet:.

Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.

On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Agurs, pp Applying the Agurs test, the trial judge held that, given the overwhelming evidence of defendant's guilt, Larry Morris's testimony was not sufficient to create a reasonable doubt regarding that guilt. We agree.

The evidence implicating defendant in the crime was direct and persuasive. The testimony of the victim, describing her friendship with Carter and his knowledge of facts about her family reflected in the extortion note, i. Further, for the reasons noted above, the evidence contained in Morris's statements would not necessarily have contradicted the other evidence presented against the defendant. The omitted evidence, Morris's testimony, would not have served "to create a reasonable doubt that did not otherwise exist".

The prosecution, therefore, was under no duty to disclose his identity. Defendant was arrested approximately three weeks after the robbery, when he was identified by Diane Potter from a photograph. Defendant challenges the photographic identification procedure as impermissibly suggestive and argues further that there was no independent basis for her identification of defendant at trial. A Wade[38] hearing was held to consider this issue prior to trial. At the hearing, Detective Michael Rand, the investigating officer, testified that he showed Potter a total of approximately photographs on three or four different occasions.

At the first showup, held the day after the robbery, she selected the photograph of a person who had been in prison at the time of the crime. At the last photographic lineup, held nearly three weeks later, Potter picked out defendant's picture. Officer Rand testified that the witness stopped at Carter's picture, which was the third one in the pack, and did not look at the remaining photographs. This testimony was contradicted by Potter, who stated that she went through the entire pack twice before identifying defendant.

Diane Potter testified that she had given the police an independent description of defendant before viewing the photographs. He was depicted as clean-shaven, about six feet tall with a sturdy build, hair in tight circles, "buggy eyes", and flared nostrils. Although she remembered him as clean-shaven both in person and in his photograph, in fact defendant, both in person and as pictured, had a mustache and a goatee.

After she picked out defendant's picture, he confirmed that she had selected the right person. Detective Rand, on the other hand, stated that he could not recall making any such comment to Potter at the showup in question. The trial judge concluded that Potter, having testified that she had seen Carter several times at Leake's Lounge and the Sewell Hotel, had an independent basis for her identification of Carter. He also held that the photographic identification procedure was "fair under the circumstances".

Defendant challenges both conclusions. He argues that Detective Rand's statements to Potter revealing that he had focused on a particular suspect and that she had selected the proper photograph rendered the procedure impermissibly suggestive and tainted her identification at trial. It is true that comments such as those allegedly made by Detective Rand may lead to error in a photographic identification procedure:. First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person.

Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness's problems of sensation, retention, etc. Emphasis added. The great danger of an improper procedure is that an initial misidentification may unduly influence any subsequent identification.

Thus, a courtroom identification may be made on the basis of the initial photographic showup or corporeal lineup rather than from an independent recollection of the crime. To guard against this possibility, if a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established.

In People v Kachar, Mich 78, ; NW2d , this Court set forth the criteria to be used to determine whether such an independent basis exists:. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act. Accuracy or discrepancies in the pre-lineup or showup description and defendant's actual description.

We agree with the trial judge that the photographic identification procedure used in this case was not impermissibly suggestive. First, it is less than clear that the allegedly improper remarks even took place. Not only was Diane Potter's testimony contradicted by Officer Rand's, but also it was somewhat inconsistent in itself. At one point in the pretrial hearing, she stated that she was not positive that the officer had said anything before showing her the photographs.

Second, even if Officer Rand did indicate that he had a suspect in mind, he in no way indicated who that suspect was until after Potter unequivocally identified the defendant. Finally, any inconsistencies in Potter's testimony and identification relate more directly to her credibility as a witness than to the alleged suggestiveness of the procedure. In addition, application of the relevant Kachar criteria reveals that there was a sufficient independent basis for Diane Potter's identification of Alvin Carter.

The quality of the circumstances in which she observed him is also more likely to give rise to reliable identification than the emotional circumstances in which a victim views a suspect while the crime is taking place.

Further, although Potter erroneously described defendant as clean-shaven, she did accurately focus on a number of defendant's idiosyncratic features, such as his "buggy" eyes and flared nostrils. And, in spite of her initial selection of the wrong photograph, when confronted with defendant's picture, Potter's identification was clear and unequivocal. Under the totality of the circumstances, therefore, we hold that Potter's in-court identification was supported by a more than adequate independent basis.

The trial judge properly allowed this evidence at trial. At trial, Kimble testified that he had first met defendant in prison, where Carter was a guard and Kimble a prisoner. Defendant then called witnesses to establish that defendant and Kimble were assigned to different units of the prison and would have had no contact with each other. One of the witnesses testified from personnel records that Carter had been employed in the trusty division until he was dismissed.

On cross-examination, the prosecutor inquired as to the reason for the dismissal. Over defense counsel's objection, the witness was permitted to respond that defendant had been fired for assaulting his supervisor. The trial court allowed the testimony on the theory that the defense had opened the door by bringing in the employment records.

I've allowed the prosecutor to go into the records because the defendant produced them himself, and I thought it was only fair that he do so; however, I want to caution you at this time that you're not to consider anything concerning what was testified to in reference to any suspension or dismissal in determining whether he is guilty or innocent of this charge. It would be error for you to do so.

So, don't consider anything about that in reference as to whether he committed the offenses that he's on trial here for. Defendant argues that the trial court erred in allowing the testimony. Evidence that a defendant has committed another crime or offense is generally inadmissible on the issue of his guilt of the charged offense. The purpose of the rule is to guard against convicting an accused on the theory that he is a "bad man". The probative value of such evidence is often outweighed by its prejudicial effect.

DerMartzex, supra. Under the facts of this case, we find that any error that may have occurred was cured by the cautionary instruction. The instruction immediately followed the objectionable testimony, and the only further reference to defendant's discharge by either party was defendant's testimony that he had been reinstated with back pay after an investigation of the incident. Thus, we find this issue to be without merit.

Accordingly, we affirm defendant's conviction of aiding and abetting the commission of extortion and conspiracy to commit extortion. I would affirm defendant's conviction of extortion, but would set aside his conviction of conspiracy to perpetrate extortion. Nothing was added to the extortion by the "conspiracy" to effect it. When the extortion was carried out the charged conspiracy merged into the completed act.

The overt-act requirement tends to be relatively easy to meet; virtually any act, no matter how insignificant, may suffice. Among the other advantages afforded the prosecution in a conspiracy case are: the vagueness in the definition and elements of the crime, Krulewitch v United States, US , ; 69 S Ct ; 93 L Ed Jackson, J.

Under this merger doctrine, only the felony was punishable. Since the procedural differences which justified the doctrine no longer exist, it has now been largely abrogated. Michigan has abolished the doctrine of merger by statute. See also People v Wilder, Mich , , fn 9; NW2d , in which this Court noted that the "modern" interpretation of merger refers to necessarily included offenses in the double jeopardy context. Of course, this rationale loses force when, as in this case, the substantive offense has been completed.

See MCL In a recent case, this Court applied Wharton's Rule to reverse a police officer's conviction of conspiracy to obstruct justice. People v Davis, Mich ; NW2d Wharton's Rule has also been applied in bribery cases.

See, e. It has also been applied to offenses such as buying, selling or delivery of contraband, and receiving stolen goods. Although the rule appears to have arisen in the double jeopardy context, the United States Supreme Court has interpreted it as a principle of "broader application", which "does not rest on principles of double jeopardy". Thus, although the purpose of the rule is similar to that of the proscription against double jeopardy, the analysis engendered by the two principles and their application to specific cases may differ.

People v Smith, Mich ; NW However, to establish aiding and abetting, it must be shown that a crime was completed by someone and that the defendant aided and abetted the commission of that crime. People v Mann, Mich ; NW2d However, a majority of the justices found that the essence of the crime in Davis was an agreement not to arrest another in exchange for money. Thus, since agreement was a necessary element of the offense, Wharton's Rule precluded a conspiracy conviction. Unlike the crime in Davis, the crime in the instant case cannot be construed to require the element of agreement.

In Michigan, at least one panel of the Court of Appeals has arrived at the same conclusion. In People v Martin, Mich , ; NW2d , this Court discussed the collateral effects of such dual convictions:. Neither party has so argued; instead, each has briefed the double jeopardy question in terms of the more traditional application of the constitutional protection "as a restraint on courts and prosecutors imposing double punishment for a single criminal act.

Further, the question of legislative intent and its effect upon double jeopardy analysis was much more directly implicated in Wayne County Prosecutor than it is in the instant case. As does Wharton's Rule, the Blockburger test incorporates a rebuttable presumption against multiple punishment. The "same evidence" test of Blockburger has been soundly criticized by commentators and courts as unduly restricting the scope of double jeopardy protection.

However, the United States Supreme Court has not extended the reach of double jeopardy to that extent. See People v Wilder, supra, Mich , fn Or, it may be "legislatively determined" to be a lesser included offense when specifically so structured by the Legislature. See, also, People v Wilder, supra, Mich , fn 6. That is, a conspirator is liable for the acts of a co-conspirator taken in furtherance of the conspiracy. By the same token, an accessory is vicariously liable for the reasonably foreseeable acts of the principal.

Sometimes the courts have not adequately distinguished between the two sources of liability, seemingly assuming that, for example, entering into the conspiracy is sufficient to prove aiding and abetting and all acts vicariously associated with liability as an accessory. But in the instant case the possession and sale clearly constituted one single and same act.

The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused's involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand.

The error is not cured by the fact the trial court permitted the two sentences to run concurrently. The conviction and sentence upon the charge of possession must be set aside. He was also convicted of conspiracy to commit armed robbery, one of the substantive charges. This Court did not grant leave to appeal the propriety of the conspiracy conviction.

Therefore, there is no difference or distinction between a principle or leader and aider and abettor or supporter or a crime. The jury will decide if the individual is guilty as aiding and abetting or accessory after the fact. The distinction is subtle, but matters when determining what an individual defendant can be found guilty of. To be found guilty of accessory after the fact the prosecutor must show that the individual defendant had known about the commission of the crime and assisted in the individual who committed the crime from prosecution or after its commission.

Whenever you are charged within a criminal misdemeanor or felony, it is essential to obtain counsel. Josh Jones understands the distinctions in the law and will assist you whenever you are charged within a criminal offense here in Michigan. Contact him today for a free consultation. But what is the difference between aiding and abetting and Accessory After the Fact, which is are separate offenses here in Michigan?

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We disagree. Initially we note that aiding and abetting the commission of extortion and conspiracy to commit extortion do not satisfy the definition of cognate offenses set forth in Ora Jones, supra. Although both crimes involve concerted activity, the offenses are not of the same class or category. Nor do they appear to reflect a common statutory purpose.

The conspiracy statute punishes the planning of the offense and focuses upon the alleged "special dangers" resulting from group action. On the other hand, the aiding and abetting statute punishes the actual commission of the crime. In addition, on the facts of this case, neither crime was necessarily included within the other. Stewart, p And, proof of either crime did not necessarily require a finding of the other.

In applying the Michigan "factual" double jeopardy test, it is critical to recognize the distinction between what a jury could or did conclude from the evidence and what a jury necessarily found. Thus, in the instant case, when the jury found the defendant guilty of aiding and abetting Kimble in the commission of extortion, it did not thereby find sufficient facts to find him guilty of conspiracy. Carter's participation in the crime was demonstrated at trial by testimony that he had composed the threatening letter in Kimble's room at the Sewell Hotel, met Kimble after the robbery, and divided the money.

However, these facts do not necessarily presuppose or establish an agreement to commit the extortion, the indispensable element of conspiracy. Establishing the agreement required a completely separate inference, or a separate factual finding. Further, unlike the situation in Martin and Stewart, where the delivery and sale could not have taken place without the possession, in the instant case, the aiding and abetting could have occurred without the conspiracy.

By the same token, the jury was not required to find defendant guilty of aiding and abetting the extortion based on proof that he conspired with Kimble to commit it. Certainly the aiding and abetting was not a "necessary prerequisite or the sine qua non" of the conspiracy. In addition, proof of the conspiracy in this case was not sufficient to establish aiding and abetting. Even if the jury used the same facts as a starting point for finding defendant guilty of both charges, an additional fact is required to support a conviction of aiding and abetting, i.

In that sense, the instant case differs significantly from other cases in which this Court has found double jeopardy violations. In Martin and Stewart, once the delivery and sale were found, the possession was established without further proof. On the facts in Jankowski, when the jury found that the defendant had committed the taking which constituted an element of the armed robbery, the jury necessarily found, without additional evidence, the facts sufficient to convict on the larceny charges.

Finally, the factual pattern in the instant case may have allowed the jury to convict defendant of both crimes on the basis of completely different facts. Edward Kimble testified that he met with defendant Carter on two different occasions on December 18, the day before the robbery. According to Kimble, he and Carter discussed the "Consumers Power job" on the afternoon of December The jury could have believed Kimble's entire testimony, and concluded that the agreement was consummated in the first meeting, making the crime of conspiracy complete.

It could then have found the more active participation required for liability as an accessory in the events of the evening meeting at the Sewell Hotel. In sum, it was both factually and logically possible for defendant to be guilty of either crime in the case aiding and abetting the commission of extortion and conspiracy to commit extortion without at the same time being guilty of the other.

These crimes are factually and theoretically independent; they are neither inseparably intertwined, cf. In the instant case, this statement describes the facts as well as the law. In a further challenge to his conviction, defendant contends that the trial court erred in refusing to grant a new trial, despite the prosecutor's failure to indorse and produce a res gestae witness.

Penney store located across the street from the Consumers Power office. According to Morris's affidavit filed in support of defendant's motion for a new trial, and also his testimony at the evidentiary hearing[34] to consider that motion, on two different occasions prior to December 19, , he noticed a black male standing in the lobby between the inside and outside doors of his store, staring at the Consumers Power building. On each occasion, the man stayed for 10 or 15 mintues before leaving.

Morris stated further that on the morning of December 19, he again saw the same black male come into the lobby and watch the building across the street for approximately 15 minutes. Morris testified that he went out to lunch at 11 a. When the same black male, subsequently identified as Edward Kimble, appeared in the store the day after the robbery, Morris called the police, who made the arrest. In his affidavit, Morris explained that he had noticed this particular black male because he was afraid that the man might be planning to rob the J.

Penney store. On all three occasions, the man appeared to be alone. Before trial, defense counsel filed a general demand for exculpatory evidence. He subsequently filed several specific motions for discovery, and received the particular evidence requested. Defense counsel first learned of his existence when he reviewed the presentence report following defendant's trial and conviction.

In denying defendant's motion for a new trial, the trial judge ruled that Morris was not a res gestae witness, and that further, in view of the "very persuasive" evidence of defendant's guilt, the failure of the jury to hear his testimony did not affect the outcome at trial. The people have an affirmative duty to indorse and produce at trial all res gestae witnesses. While no precise definition of the term has been developed, a res gestae witness has been loosely described as "an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense".

The defendant argues that Morris's testimony would "aid in developing a full disclosure of the facts" by contradicting Edward Kimble's testimony in two important respects. First, Kimble indicated, in essence, that the conspiracy began on the afternoon of December 18, when he and Carter discussed the Consumers Power job. However, Morris's statements reveal that some time before that date, Kimble was seen staring at the Consumers Power building from across the street.

Second, Kimble testified that "one day" he and Carter surveyed the proposed scene of the crime from the sidewalk. Thus, defendant concludes, Morris is a witness who can attest to a crucial fact, i. Morris's statements do not necessarily contradict the prosecutor's case. The fact that Morris saw only Kimble does not require the conclusion that Kimble was surveying the robbery scene alone.

Carter could have easily been present, outside Morris's range of vision. Further, the fact Kimble may have been seen near the Consumers Power office before December 18 is not relevant to any involvement of Carter in the conspiracy. More importantly, even in terms of the "continuum of the criminal transaction", Morris is simply too far removed from the criminal event to be denominated a res gestae witness. Morris was not an eyewitness to the crime; moreover, he never even saw the defendant until approximately two years after the crime.

In those cases in which individuals were found to be res gestae witnesses in spite of the fact that they did not observe the actual commission of the crime, the connection between what was observed and the criminal event was much closer than in the instant case. In People v Hadley, supra, the witness observed the defendant, a suspicious-looking person, in a parking lot just a few minutes before the defendant broke into an automobile.

The witness's phone call led directly to the defendant's arrest, and the court found that he qualified as a res gestae witness. Defendant challenges the prosecutor's failure to indorse and produce Larry Morris from another perspective. Because the government's ability to investigate and uncover information is superior to the defendant's, the adversary process has been somewhat modified in the criminal trial context.

Focusing upon the unfairness of this disparity and also upon the affirmative duty of the prosecution to ensure that a trial is directed toward fair ascertainment of the truth,[36] the United States Supreme Court has held that a defendant has a due process right of access to certain information possessed by the prosecution. The prosecution may not suppress evidence requested by the defendant where the evidence is favorable to the accused and material to his guilt or punishment.

It identified three different situations in which a defendant's due process right to discovery may be implicated. In the second type of situation, illustrated by Brady, supra, where a specific request for a piece of evidence is made, the test for reversal is whether "the suppressed evidence might have affected the outcome of the trial". Footnote omitted. Quite often, however, as in the instant case, a third type of situation occurs: the defendant has no knowledge of exculpatory material possessed by the prosecutor, and, therefore, cannot make a specific request.

In these circumstances, where defendant can only make a general request for exculpatory information, or, in fact makes no request at all,[37] the standard for what is in effect a voluntary disclosure is more difficult to meet:. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.

This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

Agurs, pp Applying the Agurs test, the trial judge held that, given the overwhelming evidence of defendant's guilt, Larry Morris's testimony was not sufficient to create a reasonable doubt regarding that guilt. We agree. The evidence implicating defendant in the crime was direct and persuasive. The testimony of the victim, describing her friendship with Carter and his knowledge of facts about her family reflected in the extortion note, i. Further, for the reasons noted above, the evidence contained in Morris's statements would not necessarily have contradicted the other evidence presented against the defendant.

The omitted evidence, Morris's testimony, would not have served "to create a reasonable doubt that did not otherwise exist". The prosecution, therefore, was under no duty to disclose his identity. Defendant was arrested approximately three weeks after the robbery, when he was identified by Diane Potter from a photograph. Defendant challenges the photographic identification procedure as impermissibly suggestive and argues further that there was no independent basis for her identification of defendant at trial.

A Wade[38] hearing was held to consider this issue prior to trial. At the hearing, Detective Michael Rand, the investigating officer, testified that he showed Potter a total of approximately photographs on three or four different occasions. At the first showup, held the day after the robbery, she selected the photograph of a person who had been in prison at the time of the crime.

At the last photographic lineup, held nearly three weeks later, Potter picked out defendant's picture. Officer Rand testified that the witness stopped at Carter's picture, which was the third one in the pack, and did not look at the remaining photographs. This testimony was contradicted by Potter, who stated that she went through the entire pack twice before identifying defendant. Diane Potter testified that she had given the police an independent description of defendant before viewing the photographs.

He was depicted as clean-shaven, about six feet tall with a sturdy build, hair in tight circles, "buggy eyes", and flared nostrils. Although she remembered him as clean-shaven both in person and in his photograph, in fact defendant, both in person and as pictured, had a mustache and a goatee. After she picked out defendant's picture, he confirmed that she had selected the right person. Detective Rand, on the other hand, stated that he could not recall making any such comment to Potter at the showup in question.

The trial judge concluded that Potter, having testified that she had seen Carter several times at Leake's Lounge and the Sewell Hotel, had an independent basis for her identification of Carter. He also held that the photographic identification procedure was "fair under the circumstances". Defendant challenges both conclusions. He argues that Detective Rand's statements to Potter revealing that he had focused on a particular suspect and that she had selected the proper photograph rendered the procedure impermissibly suggestive and tainted her identification at trial.

It is true that comments such as those allegedly made by Detective Rand may lead to error in a photographic identification procedure:. First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person.

Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness's problems of sensation, retention, etc.

Emphasis added. The great danger of an improper procedure is that an initial misidentification may unduly influence any subsequent identification. Thus, a courtroom identification may be made on the basis of the initial photographic showup or corporeal lineup rather than from an independent recollection of the crime. To guard against this possibility, if a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established.

In People v Kachar, Mich 78, ; NW2d , this Court set forth the criteria to be used to determine whether such an independent basis exists:. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.

Accuracy or discrepancies in the pre-lineup or showup description and defendant's actual description. We agree with the trial judge that the photographic identification procedure used in this case was not impermissibly suggestive. First, it is less than clear that the allegedly improper remarks even took place. Not only was Diane Potter's testimony contradicted by Officer Rand's, but also it was somewhat inconsistent in itself. At one point in the pretrial hearing, she stated that she was not positive that the officer had said anything before showing her the photographs.

Second, even if Officer Rand did indicate that he had a suspect in mind, he in no way indicated who that suspect was until after Potter unequivocally identified the defendant. Finally, any inconsistencies in Potter's testimony and identification relate more directly to her credibility as a witness than to the alleged suggestiveness of the procedure.

In addition, application of the relevant Kachar criteria reveals that there was a sufficient independent basis for Diane Potter's identification of Alvin Carter. The quality of the circumstances in which she observed him is also more likely to give rise to reliable identification than the emotional circumstances in which a victim views a suspect while the crime is taking place.

Further, although Potter erroneously described defendant as clean-shaven, she did accurately focus on a number of defendant's idiosyncratic features, such as his "buggy" eyes and flared nostrils. And, in spite of her initial selection of the wrong photograph, when confronted with defendant's picture, Potter's identification was clear and unequivocal.

Under the totality of the circumstances, therefore, we hold that Potter's in-court identification was supported by a more than adequate independent basis. The trial judge properly allowed this evidence at trial. At trial, Kimble testified that he had first met defendant in prison, where Carter was a guard and Kimble a prisoner.

Defendant then called witnesses to establish that defendant and Kimble were assigned to different units of the prison and would have had no contact with each other. One of the witnesses testified from personnel records that Carter had been employed in the trusty division until he was dismissed. On cross-examination, the prosecutor inquired as to the reason for the dismissal.

Over defense counsel's objection, the witness was permitted to respond that defendant had been fired for assaulting his supervisor. The trial court allowed the testimony on the theory that the defense had opened the door by bringing in the employment records. I've allowed the prosecutor to go into the records because the defendant produced them himself, and I thought it was only fair that he do so; however, I want to caution you at this time that you're not to consider anything concerning what was testified to in reference to any suspension or dismissal in determining whether he is guilty or innocent of this charge.

It would be error for you to do so. So, don't consider anything about that in reference as to whether he committed the offenses that he's on trial here for. Defendant argues that the trial court erred in allowing the testimony. Evidence that a defendant has committed another crime or offense is generally inadmissible on the issue of his guilt of the charged offense. The purpose of the rule is to guard against convicting an accused on the theory that he is a "bad man".

The probative value of such evidence is often outweighed by its prejudicial effect. DerMartzex, supra. Under the facts of this case, we find that any error that may have occurred was cured by the cautionary instruction.

The instruction immediately followed the objectionable testimony, and the only further reference to defendant's discharge by either party was defendant's testimony that he had been reinstated with back pay after an investigation of the incident. Thus, we find this issue to be without merit. Accordingly, we affirm defendant's conviction of aiding and abetting the commission of extortion and conspiracy to commit extortion. I would affirm defendant's conviction of extortion, but would set aside his conviction of conspiracy to perpetrate extortion.

Nothing was added to the extortion by the "conspiracy" to effect it. When the extortion was carried out the charged conspiracy merged into the completed act. The overt-act requirement tends to be relatively easy to meet; virtually any act, no matter how insignificant, may suffice. Among the other advantages afforded the prosecution in a conspiracy case are: the vagueness in the definition and elements of the crime, Krulewitch v United States, US , ; 69 S Ct ; 93 L Ed Jackson, J.

Under this merger doctrine, only the felony was punishable. Since the procedural differences which justified the doctrine no longer exist, it has now been largely abrogated. Michigan has abolished the doctrine of merger by statute. See also People v Wilder, Mich , , fn 9; NW2d , in which this Court noted that the "modern" interpretation of merger refers to necessarily included offenses in the double jeopardy context. Of course, this rationale loses force when, as in this case, the substantive offense has been completed.

See MCL In a recent case, this Court applied Wharton's Rule to reverse a police officer's conviction of conspiracy to obstruct justice. People v Davis, Mich ; NW2d Wharton's Rule has also been applied in bribery cases.

See, e. It has also been applied to offenses such as buying, selling or delivery of contraband, and receiving stolen goods. Although the rule appears to have arisen in the double jeopardy context, the United States Supreme Court has interpreted it as a principle of "broader application", which "does not rest on principles of double jeopardy".

Thus, although the purpose of the rule is similar to that of the proscription against double jeopardy, the analysis engendered by the two principles and their application to specific cases may differ. People v Smith, Mich ; NW However, to establish aiding and abetting, it must be shown that a crime was completed by someone and that the defendant aided and abetted the commission of that crime.

People v Mann, Mich ; NW2d However, a majority of the justices found that the essence of the crime in Davis was an agreement not to arrest another in exchange for money. Thus, since agreement was a necessary element of the offense, Wharton's Rule precluded a conspiracy conviction. Unlike the crime in Davis, the crime in the instant case cannot be construed to require the element of agreement. In Michigan, at least one panel of the Court of Appeals has arrived at the same conclusion.

In People v Martin, Mich , ; NW2d , this Court discussed the collateral effects of such dual convictions:. Neither party has so argued; instead, each has briefed the double jeopardy question in terms of the more traditional application of the constitutional protection "as a restraint on courts and prosecutors imposing double punishment for a single criminal act. Further, the question of legislative intent and its effect upon double jeopardy analysis was much more directly implicated in Wayne County Prosecutor than it is in the instant case.

As does Wharton's Rule, the Blockburger test incorporates a rebuttable presumption against multiple punishment. The "same evidence" test of Blockburger has been soundly criticized by commentators and courts as unduly restricting the scope of double jeopardy protection.

However, the United States Supreme Court has not extended the reach of double jeopardy to that extent. See People v Wilder, supra, Mich , fn Or, it may be "legislatively determined" to be a lesser included offense when specifically so structured by the Legislature.

See, also, People v Wilder, supra, Mich , fn 6. That is, a conspirator is liable for the acts of a co-conspirator taken in furtherance of the conspiracy. By the same token, an accessory is vicariously liable for the reasonably foreseeable acts of the principal. Sometimes the courts have not adequately distinguished between the two sources of liability, seemingly assuming that, for example, entering into the conspiracy is sufficient to prove aiding and abetting and all acts vicariously associated with liability as an accessory.

But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused's involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand.

The error is not cured by the fact the trial court permitted the two sentences to run concurrently. The conviction and sentence upon the charge of possession must be set aside. He was also convicted of conspiracy to commit armed robbery, one of the substantive charges. This Court did not grant leave to appeal the propriety of the conspiracy conviction. Jacobs, prosecutor]: Had you discussed what you were going to do at Consumers with anyone previous to going in there? The rule of lenity, grounded in due process, is a basic policy that any doubt in the enforcement of a criminal statute will be resolved in a defendant's favor, i.

Because we do not agree with defendant's premise, we need not decide the effect of the rule of lenity in this case. Conspiracy and aiding and abetting are not alternative means of referring to the same behavior. As has been discussed, conspiracy goes to the planning, and aiding and abetting the commission, of the substantive offense. Further, as we have held, the two crimes are different offenses, both in terms of their definitional elements and, in particular cases such as the instant one, the proofs adduced at trial.

At such a hearing, the prosecution has the burden of explaining why the witness was not indorsed and produced at trial. A public prosecutor has no right to suppress testimony. It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence in relation to the main issue or to give some good excuse for not doing so.

If there is a duty to respond to a general request of that kind, it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor. But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made. Whether we focus on the desirability of a precise definition of the prosecutor's duty or on the potential harm to the defendant, we conclude that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all.

One justice dissented on the issue of whether the initial showup was impermissibly suggestive. Three others did not participate in the decision. Conspiracy should be considered in isolation from the substantive crime or crimes underlying it.

The core of a conspiracy is the agreement, and it can be considered complete once the agreement has been made and some action has been taken in furtherance of it. Whether or not the conspiracy is successful does not affect whether the charge may be sustained. The merger doctrine does not apply between conspiracy and the completed substantive offense, so a defendant may be convicted of and punished for both.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. It is important to understand what acts constitute conviction under the law here in Michigan. The concept may be considered similar to a conspiracy charge, however, aiding and abetting requires different proofs for a prosecutor to obtain a conviction. First, in order to obtain a conviction under aiding and abetting, the prosecutor must prove that the individual defendant or someone else committed a crime.

Further, the individual must have prior to or during the crime, assisted in some manner to commit the crime. Lastly, the individual defendant must have intended for the commission of the crime or knew was going to be committed. The crime of aiding and abetting comes from common law and was generally a separate and distinct crime; however, it is abrogated by statute here in Michigan pursuant to MCL The Statute actually abolishes the distinction between the aider and abettor and the principle.

This means that an individual convicted of aiding and abetting will be sentenced and technically convicted of the principle offense attached to the elements of the aiding and abetting charge.

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CORAL BETTING SHOP READING

Aiding and abetting is a theory that permits vicarious liability to be imposed on accomplices to a crime. If a person knowingly assists or participates with another in committing a crime, the law holds the person responsible as an aider and abettor. An aider and abettor faces the same punishment as the actual perpetrators as though the aider and abettor had engaged in such conduct himself.

Mere Presence: Without more, mere presence at the scene of a crime is not sufficient to establish aiding and abetting. It takes one phone call to get immediate answers to your most pressing legal questions from attorneys that are endorsed by their clients and the legal community. Serving all courts in Macomb, Oakland, Wayne or St. Clair County. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail.

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Criminal Law. Drug and Marijuana Crimes. Possession, Conspiracy, Aiding and Abetting. Possession, Conspiracy, Aiding and Abetting A person may be implicated in a criminal matter for aiding, abetting or conspiring even though that person is not the actual perpetrator of the offense. Retain a Lawyer if You the Subject of a Criminal Investigation If you are the subject of a criminal investigation , or charged with a crime, it is always wise to consult with an experienced criminal defense attorney as soon as possible before talking to the police.

Even those that deny any wrongdoing may be hurting themselves beyond repair by making statements to the police that: Place them at the location of a crime scene. Establishing relationships with other suspects. Give evidence of motive to commit the crime drug addiction. Provide inaccurate information which supports a charge for filing a false police report.

Get set up for a polygraph without first consulting with a lawyer. Actual Possession: When the illegal property is found in the hands or on the person. It is very difficult to attack a criminal possession charge when the police can show actual possession. However, although difficult to prove, a criminal charge may be dismissed when the underlying police search and seizure is illegal or not supported by legal grounds probable cause, consent.

Holding the illegal property for someone else is not a defense since ownership is not required to establish possession. Constructive Possession: A person need not have actual physical possession of illegal property to be found guilty of possessing it. In the instant case, of course, the substantive crime is extortion.

Extortion is not a crime of such a nature as to necessarily require the participation of two persons. In addition, any presumption in favor of the application of Wharton's Rule is rebutted by the legislative intent expressed in the aiding and abetting statute. As noted earlier, conspiracy does not merge with the completed substantive crime that is its object.

The aiding and abetting statute states that in all respects prosecution, indictment, trial and punishment one who aids in the commission of a crime is to be treated exactly as if he had directly committed the offense. To provide that conspiracy would merge with the object crime for an aider and abettor but not for a principal would be to provide for differences in the prosecution, indictment, trial and punishment of accessories as opposed to principals.

Defendant argues further that his convictions of conspiracy and aiding and abetting with respect to the same substantive crime violate his federal constitutional right not to be placed twice in jeopardy for the same act. The guarantee against double jeopardy in the Constitution of the United States has been made applicable to the states through the Fourteenth Amendment. That guarantee incorporates three distinct constitutional protections:.

It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. In the instant case, the question is one of multiple punishment. People v Jankowski, Mich 79; NW2d The problem in multiple punishment cases, as in multiple prosecution cases, is to determine whether the charges at issue constitute the "same offense" for double jeopardy purposes.

The Blockburger test focuses on the statutory elements of the offenses involved, not on the particular facts introduced at trial to establish their commission. Defendant concedes that under a strict application of the Blockburger test, aiding and abetting and conspiracy would be considered different offenses because aiding and abetting requires a completed crime and aiding and abetting by the defendant in the commission of that crime, People v Mann, Mich ; NW2d , and conspiracy requires a combination or agreement.

As an offshoot of the Blockburger rule, the Supreme Court has applied a necessarily lesser-included-offense analysis in determining whether offenses are the same for double jeopardy purposes. Reference is made to state law for definitions of the offenses involved and also to ascertain whether they stand in the relation of greater- and lesser-included offenses. Again, the emphasis is upon the legal elements of the offense, not upon the facts of a particular case. Under the necessarily lesser-included-offense test, the separate crimes need not contain identical elements to constitute the "same offense".

Brown v Ohio, supra. To be necessarily included in the greater offense, a lesser offense must be such that it is impossible to commit the greater crime without also having committed the lesser. It is true that the two crimes contain certain common elements, i. However, aiding and abetting the commission of a crime and conspiracy to commit that crime are legally distinct offenses. The crux of a conspiracy is an agreement to perpetrate the crime.

Conviction of conspiracy does not depend on the success or failure of its object. Further, as defined in Michigan, conspiracy does not require any overt act in furtherance of its illegal end. People v Atley, supra. In contrast, to be convicted as an accessory, one must procure, counsel, aid, or abet the commission of a crime. Some form of active, overt participation toward the accomplishment of the offense is required, as is a completed crime and a guilty principal.

People v Palmer, supra. It is, therefore, possible to commit either crime without necessarily having committed the other. A person may aid and abet the commission of a crime without at the same time having specifically agreed to commit it. It does not automatically follow that when an offense is committed by multiple defendants the action is taken pursuant to a prior arrangement or agreement. Comment, Conspiracy, 28 La L Rev Even if, factually, liability as an accessory is based upon an agreement, it does not require proof of such agreement.

Iannelli v United States, , fn Further, as stated by the United States Supreme Court:. Conversely, a conspirator is not necessarily liable as an accessory to the completed crime on the basis of the agreement alone. To be liable as an accessory, a person must advise, assist, counsel, or induce the commission of the crime. Such behavior may require more than mere agreement. The fact that, in many cases, conspirators do assume an active role in the commission of the object crime does not alter the legal distinction between liability as an accessory and as a conspirator.

Nor is the fact that some of the evidence introduced at trial "may have served double duty", supporting both the conspiracy and accessory charges, material under federal double jeopardy analysis. Thus, defendant's dual convictions of conspiracy to commit extortion and of aiding and abetting the commission of extortion are not barred by the double jeopardy provision of the United States Constitution. Michigan, unlike some other states,[24] has its own specific constitutional protection against double jeopardy.

Although the language of the state provision is nearly the same as that of the federal constitution,[25] there are certain important differences between the state and federal tests used to establish a constitutional violation. Significantly, the Michigan rules offer broader double jeopardy protection than do the federal standards. Whitton v State, P2d Alas, As do their federal counterparts, Michigan courts engage in a greater- and lesser-included-offense analysis to evaluate double jeopardy challenges.

However, in Michigan the emphasis is not on the theoretical elements of the crimes involved, but rather upon the proof of facts adduced at trial:. Of course, in focusing upon the facts, a court must nevertheless still take account of the elements of the offense. People v Wilder, Mich , , fn 10; NW2d In addition, Michigan has an expansive definition of necessarily included offenses for double jeopardy and other[27] purposes:. The fact that a lesser offense contains an element not also contained in the greater does not necessarily preclude the lesser from being included within the greater.

Further, cognate offenses include common statutory purposes as well as common elements; and, the shared elements must be related to those purposes, i. Ora Jones, p Thus, in contrast to the test used in the federal system, the Michigan test for double jeopardy focuses on the facts of the particular case and proscribes multiple convictions of cognate as well as necessarily included offenses. The Michigan analysis has been applied by this Court to preclude dual convictions of possession and delivery of the same heroin, where the possession was necessarily incident to delivery.

People v Martin, Mich ; NW2d Reaching the same conclusion with respect to the sale and possession of the identical heroin in People v Stewart On Rehearing , Mich , ; NW2d 31 , we explained:. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin. People v Jankowski, supra. Further, he argues, the facts introduced at trial to demonstrate aiding and abetting necessarily proved the crime of conspiracy and vice versa, i.

We disagree. Initially we note that aiding and abetting the commission of extortion and conspiracy to commit extortion do not satisfy the definition of cognate offenses set forth in Ora Jones, supra. Although both crimes involve concerted activity, the offenses are not of the same class or category. Nor do they appear to reflect a common statutory purpose. The conspiracy statute punishes the planning of the offense and focuses upon the alleged "special dangers" resulting from group action.

On the other hand, the aiding and abetting statute punishes the actual commission of the crime. In addition, on the facts of this case, neither crime was necessarily included within the other. Stewart, p And, proof of either crime did not necessarily require a finding of the other. In applying the Michigan "factual" double jeopardy test, it is critical to recognize the distinction between what a jury could or did conclude from the evidence and what a jury necessarily found.

Thus, in the instant case, when the jury found the defendant guilty of aiding and abetting Kimble in the commission of extortion, it did not thereby find sufficient facts to find him guilty of conspiracy. Carter's participation in the crime was demonstrated at trial by testimony that he had composed the threatening letter in Kimble's room at the Sewell Hotel, met Kimble after the robbery, and divided the money. However, these facts do not necessarily presuppose or establish an agreement to commit the extortion, the indispensable element of conspiracy.

Establishing the agreement required a completely separate inference, or a separate factual finding. Further, unlike the situation in Martin and Stewart, where the delivery and sale could not have taken place without the possession, in the instant case, the aiding and abetting could have occurred without the conspiracy. By the same token, the jury was not required to find defendant guilty of aiding and abetting the extortion based on proof that he conspired with Kimble to commit it.

Certainly the aiding and abetting was not a "necessary prerequisite or the sine qua non" of the conspiracy. In addition, proof of the conspiracy in this case was not sufficient to establish aiding and abetting. Even if the jury used the same facts as a starting point for finding defendant guilty of both charges, an additional fact is required to support a conviction of aiding and abetting, i.

In that sense, the instant case differs significantly from other cases in which this Court has found double jeopardy violations. In Martin and Stewart, once the delivery and sale were found, the possession was established without further proof. On the facts in Jankowski, when the jury found that the defendant had committed the taking which constituted an element of the armed robbery, the jury necessarily found, without additional evidence, the facts sufficient to convict on the larceny charges.

Finally, the factual pattern in the instant case may have allowed the jury to convict defendant of both crimes on the basis of completely different facts. Edward Kimble testified that he met with defendant Carter on two different occasions on December 18, the day before the robbery. According to Kimble, he and Carter discussed the "Consumers Power job" on the afternoon of December The jury could have believed Kimble's entire testimony, and concluded that the agreement was consummated in the first meeting, making the crime of conspiracy complete.

It could then have found the more active participation required for liability as an accessory in the events of the evening meeting at the Sewell Hotel. In sum, it was both factually and logically possible for defendant to be guilty of either crime in the case aiding and abetting the commission of extortion and conspiracy to commit extortion without at the same time being guilty of the other. These crimes are factually and theoretically independent; they are neither inseparably intertwined, cf.

In the instant case, this statement describes the facts as well as the law. In a further challenge to his conviction, defendant contends that the trial court erred in refusing to grant a new trial, despite the prosecutor's failure to indorse and produce a res gestae witness. Penney store located across the street from the Consumers Power office.

According to Morris's affidavit filed in support of defendant's motion for a new trial, and also his testimony at the evidentiary hearing[34] to consider that motion, on two different occasions prior to December 19, , he noticed a black male standing in the lobby between the inside and outside doors of his store, staring at the Consumers Power building.

On each occasion, the man stayed for 10 or 15 mintues before leaving. Morris stated further that on the morning of December 19, he again saw the same black male come into the lobby and watch the building across the street for approximately 15 minutes. Morris testified that he went out to lunch at 11 a. When the same black male, subsequently identified as Edward Kimble, appeared in the store the day after the robbery, Morris called the police, who made the arrest. In his affidavit, Morris explained that he had noticed this particular black male because he was afraid that the man might be planning to rob the J.

Penney store. On all three occasions, the man appeared to be alone. Before trial, defense counsel filed a general demand for exculpatory evidence. He subsequently filed several specific motions for discovery, and received the particular evidence requested. Defense counsel first learned of his existence when he reviewed the presentence report following defendant's trial and conviction.

In denying defendant's motion for a new trial, the trial judge ruled that Morris was not a res gestae witness, and that further, in view of the "very persuasive" evidence of defendant's guilt, the failure of the jury to hear his testimony did not affect the outcome at trial.

The people have an affirmative duty to indorse and produce at trial all res gestae witnesses. While no precise definition of the term has been developed, a res gestae witness has been loosely described as "an eyewitness to some event in the continuum of a criminal transaction and [one] whose testimony will aid in developing a full disclosure of the facts surrounding the alleged commission of the charged offense". The defendant argues that Morris's testimony would "aid in developing a full disclosure of the facts" by contradicting Edward Kimble's testimony in two important respects.

First, Kimble indicated, in essence, that the conspiracy began on the afternoon of December 18, when he and Carter discussed the Consumers Power job. However, Morris's statements reveal that some time before that date, Kimble was seen staring at the Consumers Power building from across the street. Second, Kimble testified that "one day" he and Carter surveyed the proposed scene of the crime from the sidewalk.

Thus, defendant concludes, Morris is a witness who can attest to a crucial fact, i. Morris's statements do not necessarily contradict the prosecutor's case. The fact that Morris saw only Kimble does not require the conclusion that Kimble was surveying the robbery scene alone. Carter could have easily been present, outside Morris's range of vision. Further, the fact Kimble may have been seen near the Consumers Power office before December 18 is not relevant to any involvement of Carter in the conspiracy.

More importantly, even in terms of the "continuum of the criminal transaction", Morris is simply too far removed from the criminal event to be denominated a res gestae witness. Morris was not an eyewitness to the crime; moreover, he never even saw the defendant until approximately two years after the crime. In those cases in which individuals were found to be res gestae witnesses in spite of the fact that they did not observe the actual commission of the crime, the connection between what was observed and the criminal event was much closer than in the instant case.

In People v Hadley, supra, the witness observed the defendant, a suspicious-looking person, in a parking lot just a few minutes before the defendant broke into an automobile. The witness's phone call led directly to the defendant's arrest, and the court found that he qualified as a res gestae witness. Defendant challenges the prosecutor's failure to indorse and produce Larry Morris from another perspective.

Because the government's ability to investigate and uncover information is superior to the defendant's, the adversary process has been somewhat modified in the criminal trial context. Focusing upon the unfairness of this disparity and also upon the affirmative duty of the prosecution to ensure that a trial is directed toward fair ascertainment of the truth,[36] the United States Supreme Court has held that a defendant has a due process right of access to certain information possessed by the prosecution.

The prosecution may not suppress evidence requested by the defendant where the evidence is favorable to the accused and material to his guilt or punishment. It identified three different situations in which a defendant's due process right to discovery may be implicated. In the second type of situation, illustrated by Brady, supra, where a specific request for a piece of evidence is made, the test for reversal is whether "the suppressed evidence might have affected the outcome of the trial".

Footnote omitted. Quite often, however, as in the instant case, a third type of situation occurs: the defendant has no knowledge of exculpatory material possessed by the prosecutor, and, therefore, cannot make a specific request. In these circumstances, where defendant can only make a general request for exculpatory information, or, in fact makes no request at all,[37] the standard for what is in effect a voluntary disclosure is more difficult to meet:.

Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record.

If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. Agurs, pp Applying the Agurs test, the trial judge held that, given the overwhelming evidence of defendant's guilt, Larry Morris's testimony was not sufficient to create a reasonable doubt regarding that guilt.

We agree. The evidence implicating defendant in the crime was direct and persuasive. The testimony of the victim, describing her friendship with Carter and his knowledge of facts about her family reflected in the extortion note, i.

Further, for the reasons noted above, the evidence contained in Morris's statements would not necessarily have contradicted the other evidence presented against the defendant. The omitted evidence, Morris's testimony, would not have served "to create a reasonable doubt that did not otherwise exist". The prosecution, therefore, was under no duty to disclose his identity. Defendant was arrested approximately three weeks after the robbery, when he was identified by Diane Potter from a photograph.

Defendant challenges the photographic identification procedure as impermissibly suggestive and argues further that there was no independent basis for her identification of defendant at trial. A Wade[38] hearing was held to consider this issue prior to trial. At the hearing, Detective Michael Rand, the investigating officer, testified that he showed Potter a total of approximately photographs on three or four different occasions.

At the first showup, held the day after the robbery, she selected the photograph of a person who had been in prison at the time of the crime. At the last photographic lineup, held nearly three weeks later, Potter picked out defendant's picture. Officer Rand testified that the witness stopped at Carter's picture, which was the third one in the pack, and did not look at the remaining photographs.

This testimony was contradicted by Potter, who stated that she went through the entire pack twice before identifying defendant. Diane Potter testified that she had given the police an independent description of defendant before viewing the photographs. He was depicted as clean-shaven, about six feet tall with a sturdy build, hair in tight circles, "buggy eyes", and flared nostrils.

Although she remembered him as clean-shaven both in person and in his photograph, in fact defendant, both in person and as pictured, had a mustache and a goatee. After she picked out defendant's picture, he confirmed that she had selected the right person. Detective Rand, on the other hand, stated that he could not recall making any such comment to Potter at the showup in question. The trial judge concluded that Potter, having testified that she had seen Carter several times at Leake's Lounge and the Sewell Hotel, had an independent basis for her identification of Carter.

He also held that the photographic identification procedure was "fair under the circumstances". Defendant challenges both conclusions. He argues that Detective Rand's statements to Potter revealing that he had focused on a particular suspect and that she had selected the proper photograph rendered the procedure impermissibly suggestive and tainted her identification at trial. It is true that comments such as those allegedly made by Detective Rand may lead to error in a photographic identification procedure:.

First, the witness when called by the police or prosecution either is told or believes that the police have apprehended the right person. Second, if the witness is shown only one person or a group in which one person is singled out in some way, he is tempted to presume that he is the person. Third, as the second factor just discussed above shows, eyewitness identification has inherent weaknesses from the standpoint of the witness's problems of sensation, retention, etc.

Emphasis added. The great danger of an improper procedure is that an initial misidentification may unduly influence any subsequent identification. Thus, a courtroom identification may be made on the basis of the initial photographic showup or corporeal lineup rather than from an independent recollection of the crime.

To guard against this possibility, if a pretrial identification has been improperly conducted, an independent basis for any in-court identification must be established. In People v Kachar, Mich 78, ; NW2d , this Court set forth the criteria to be used to determine whether such an independent basis exists:. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.

Accuracy or discrepancies in the pre-lineup or showup description and defendant's actual description. We agree with the trial judge that the photographic identification procedure used in this case was not impermissibly suggestive. First, it is less than clear that the allegedly improper remarks even took place. Not only was Diane Potter's testimony contradicted by Officer Rand's, but also it was somewhat inconsistent in itself.

At one point in the pretrial hearing, she stated that she was not positive that the officer had said anything before showing her the photographs. Second, even if Officer Rand did indicate that he had a suspect in mind, he in no way indicated who that suspect was until after Potter unequivocally identified the defendant.

Finally, any inconsistencies in Potter's testimony and identification relate more directly to her credibility as a witness than to the alleged suggestiveness of the procedure. In addition, application of the relevant Kachar criteria reveals that there was a sufficient independent basis for Diane Potter's identification of Alvin Carter. The quality of the circumstances in which she observed him is also more likely to give rise to reliable identification than the emotional circumstances in which a victim views a suspect while the crime is taking place.

Further, although Potter erroneously described defendant as clean-shaven, she did accurately focus on a number of defendant's idiosyncratic features, such as his "buggy" eyes and flared nostrils. And, in spite of her initial selection of the wrong photograph, when confronted with defendant's picture, Potter's identification was clear and unequivocal. Under the totality of the circumstances, therefore, we hold that Potter's in-court identification was supported by a more than adequate independent basis.

The trial judge properly allowed this evidence at trial. At trial, Kimble testified that he had first met defendant in prison, where Carter was a guard and Kimble a prisoner. Defendant then called witnesses to establish that defendant and Kimble were assigned to different units of the prison and would have had no contact with each other. One of the witnesses testified from personnel records that Carter had been employed in the trusty division until he was dismissed.

On cross-examination, the prosecutor inquired as to the reason for the dismissal. Over defense counsel's objection, the witness was permitted to respond that defendant had been fired for assaulting his supervisor. The trial court allowed the testimony on the theory that the defense had opened the door by bringing in the employment records. I've allowed the prosecutor to go into the records because the defendant produced them himself, and I thought it was only fair that he do so; however, I want to caution you at this time that you're not to consider anything concerning what was testified to in reference to any suspension or dismissal in determining whether he is guilty or innocent of this charge.

It would be error for you to do so. So, don't consider anything about that in reference as to whether he committed the offenses that he's on trial here for. Defendant argues that the trial court erred in allowing the testimony. Evidence that a defendant has committed another crime or offense is generally inadmissible on the issue of his guilt of the charged offense. The purpose of the rule is to guard against convicting an accused on the theory that he is a "bad man".

The probative value of such evidence is often outweighed by its prejudicial effect. DerMartzex, supra. Under the facts of this case, we find that any error that may have occurred was cured by the cautionary instruction. The instruction immediately followed the objectionable testimony, and the only further reference to defendant's discharge by either party was defendant's testimony that he had been reinstated with back pay after an investigation of the incident.

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