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People v. Atkins, Docket No. 19025 (Mich. Ct. App. Feb. 11, 1975)

Factual and Procedural Background

John H. Atkins was convicted by a jury in Kalamazoo County Circuit Court of armed robbery in violation of MCLA 750.529; MSA 28.797. The trial lasted three days. During the trial the trial judge questioned the defendant on five occasions; those colloquies covered 5 of 196 pages of transcribed testimony and addressed the last name of a friend, locating a landmark, the length of time defendant spent at his parents' home on the date of the crime, when the defendant had last shaved, and the defendant's memory of the day the crime was committed.

In the defense case in chief, the defense sought to introduce a portion of a line-up photograph taken eight days after the robbery showing the defendant with some facial hair growth. An eyewitness, Mrs. Dock, had earlier described the robber as having no facial hair and had identified the defendant at trial as the armed robber. The prosecution objected to admission of only part of the picture; the trial judge sustained that objection, and the defense then introduced the entire photograph into evidence. The prosecution later offered rebuttal testimony from Mrs. Dock concerning the line-up photograph.

Defendant appealed his conviction alleging (1) the trial judge's questioning of the defendant displayed doubt about the defendant's credibility and deprived him of a fair trial; (2) the trial court erred in sustaining the prosecution's objection to admitting only a portion of the line-up photograph; and (3) the trial court abused its discretion by permitting the prosecution to present rebuttal testimony from Mrs. Dock concerning the photograph, effectively allowing the prosecution to bolster its case in chief. Defendant also submitted a supplemental brief raising an additional issue later noted to have been decided against him in People v Milton.

Legal Issues Presented

  1. Whether the trial judge's questioning of the defendant during trial demonstrated judicial bias or otherwise deprived the defendant of a fair and impartial trial.
  2. Whether the trial court erred in sustaining the prosecution's objection to the admission of only a portion of a line-up photograph offered by the defense.
  3. Whether the trial court abused its discretion by permitting the prosecution to elicit rebuttal testimony from an eyewitness about the line-up photograph, thereby impermissibly reinforcing the prosecution's case in chief.

Arguments of the Parties

Defendant's Arguments

  • The trial judge's repeated questioning of the defendant indicated the judge doubted the defendant's credibility and thereby deprived the defendant of a fair trial.
  • The trial court erred by sustaining the prosecution's objection to admitting only part of the line-up photograph; the partial photograph was relevant to show the defendant's appearance.
  • The trial court abused its discretion by allowing the eyewitness, Mrs. Dock, to give rebuttal testimony concerning the line-up photograph, effectively allowing the prosecution to divide its proofs and bolster its case after resting.

People / Prosecution's Position

  • The prosecution objected to admission of only part of the line-up photograph; the objection was sustained by the trial judge.
  • The prosecution offered rebuttal testimony from the eyewitness, Mrs. Dock, concerning the line-up photograph; the trial court allowed this testimony as rebuttal evidence.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Watson, 52 Mich. App. 211; 217 N.W.2d 121 (1974) Support for the proposition that trial-court questioning designed to clarify testimony does not necessarily deprive a defendant of a fair trial. The court relied on Watson to find that four of the five colloquies were clarifying and did not demonstrate denial of a fair and impartial trial.
People v Wright, 38 Mich. App. 427; 196 N.W.2d 839 (1972), lev den, 388 Mich. 758 (1972) Approval of a particular line of judicial questioning relating to events surrounding the charged offense. The court found the fifth colloquy paralleled the line of questioning approved in Wright and therefore was within the court's discretion.
People v DeLano, 318 Mich. 557, 570; 28 N.W.2d 909, 914 (1947) Provides a broad definition of rebuttal evidence and states that allowance of rebuttal is within the trial court's discretion (quoting People v Utter). The court quoted DeLano's definition to justify that the eyewitness's testimony was proper rebuttal evidence and within the trial judge's discretion to allow.
People v Utter, 217 Mich. 74; 185 N.W. 830 (1921) Source of the quotation defining rebuttal evidence (as quoted in DeLano). Used as the foundational quotation (via DeLano) to explain the scope and discretionary nature of rebuttal evidence.
People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974) Statement that it is improper for the prosecution to divide proofs between its case in chief and present the remainder as rebuttal. The court acknowledged McGillen #1's rule but found the present case did not involve an improper division of the prosecution's proofs; the testimony was within the scope of proper rebuttal.
People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974) Resolution of the supplemental issue raised by defendant (cited as deciding that issue adversely to defendant). The court held that the supplemental issue raised by defendant had been decided against him in Milton, so that contention lacked merit.

Court's Reasoning and Analysis

The court reviewed each of the trial judge's five colloquies with the defendant. Four of the colloquies were characterized as clarification of testimony and were not of a nature to support a claim that the defendant had been denied a fair and impartial trial; the court cited People v Watson in support of that conclusion. The fifth colloquy involved questioning about events of the week of the robbery; the court found this line of questioning paralleled that approved in People v Wright (and its appellate disposition), and therefore concluded it was within the trial court's discretion.

Regarding the disputed line-up photograph, the court determined the trial judge was properly exercising his statutory power to control the introduction of evidence (citing MCLA 768.29; MSA 28.1052). The trial judge had found it important for the jury to see the lighting and quality of the entire picture to assess its value; sustaining the objection to admitting only a portion of the photograph and admitting the entire photograph was held proper.

On the admissibility of the prosecution's rebuttal testimony from Mrs. Dock, the court quoted People v DeLano's broad definition of rebuttal evidence (which in turn quoted People v Utter) and observed that whether evidence that could have been offered earlier may be given in rebuttal is within the trial judge's discretion. The court acknowledged the rule from People v McGillen #1 that the prosecution may not improperly divide its proofs between its case in chief and rebuttal, but found that was not the situation here because the testimony was clearly within the scope of rebuttal evidence. Having examined the record, the appellate court found no abuse of discretion in the trial judge's rulings.

Finally, the court noted a supplemental argument raised by defendant had been decided adversely in People v Milton, removing any merit from that contention.

Holding and Implications

Affirmed.

Direct effect: The defendant's conviction for armed robbery was affirmed by the Michigan Court of Appeals; the court found no reversible error in the trial judge's questioning, his evidentiary rulings regarding the line-up photograph, or his allowance of rebuttal testimony.

Broader implications: The opinion applies existing authority on trial-court questioning, control of evidence, and the scope of rebuttal testimony but does not announce a new rule of law; rather, it confirms the trial court's discretionary role in clarifying testimony, controlling photographic evidence, and permitting rebuttal testimony when within proper scope.

PEOPLE v. ATKINS

V.J. BRENNAN, P.J.

Defendant, John H. Atkins, was convicted by a jury in Kalamazoo County Circuit Court of armed robbery in violation of MCLA 750.529; MSA 28.797. In the course of the three-day trial, the trial judge questioned the defendant on five occasions. The colloquies between the trial court and the defendant covered 5 of 196 pages of transcribed testimony. The questioning involved determining the last name of a friend of the defendant, locating a landmark with which the trial court was unfamiliar, the length of time the defendant spent at his parents' home on the date of the crime, when the defendant had last shaved, and the quality of the defendant's memory of the day on which the crime was committed.

The defense, in its case in chief, attempted to introduce a portion of a line-up photograph taken eight days after the robbery which showed the defendant to have some facial hair growth. An earlier eyewitness, Mrs. Dock, had described the armed robber as having no facial hair. This same eyewitness identified the defendant as the armed robber. The prosecution objected to the admission of only part of the picture. The trial judge sustained the objection and the defense introduced the entire photograph into evidence.

The defendant appeals his conviction alleging that the questioning by the trial judge demonstrated to the jury that he, the trial judge, had doubts about the credibility of the defendant and that this deprived the defendant of a fair trial. Defendant also argues that the trial court erred in allowing rebuttal testimony of the eyewitness, Mrs. Dock, concerning the line-up photograph introduced by the defense. The defendant claims that the prosecution was really allowed to reinforce its case in chief and that the trial court abused its discretion in permitting such testimony. Similarly, defendant argues that the trial court erred in sustaining the prosecution's objection to admitting only a portion of the line-up photograph.

With respect to defendant's first issue it appears that four of the five colloquies between the trial court and the defendant occurred as an attempt to clarify testimony. These exchanges were not such as would support a claim that defendant was denied a fair and impartial trial. People v Watson, 52 Mich. App. 211; 217 N.W.2d 121 (1974). In the fifth, the trial court questioned the defendant concerning the events of the week of the robbery. This colloquy parallels the line of questioning, approved in People v Wright, 38 Mich. App. 427; 196 N.W.2d 839 (1972), lev den, 388 Mich. 758 (1972). We, therefore, find defendant's allegation to be without merit and the line of questioning within the discretion of the court.

The second allegation is also without merit. The trial judge here was properly exercising his power to control the introduction of evidence. MCLA 768.29; MSA 28.1052. As the trial judge found, it was clearly important for the jury to see the lighting and quality of the entire picture to determine its value as support for the position for which it was offered.

Finally, the trial judge did not abuse his discretion in allowing the rebuttal testimony of the eyewitness, Mrs. Dock.

"`Rebuttal evidence is broadly defined as that given by one party to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. In practical application the line of demarcation between rebuttal evidence and that which should properly be given in chief before the prosecution rests is frequently more or less obscure, and it is a general rule that whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court.'" People v DeLano, 318 Mich. 557, 570; 28 N.W.2d 909, 914 (1947), quoting from People v Utter, 217 Mich. 74; 185 N.W. 830 (1921).

The above statement is, of course, subject to the rule that it is not proper for the people to divide up the proofs upon which they have decided to rest their case and present some in their case in chief and the rest as "rebuttal". See People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974). This was not the situation in the present case, however. The testimony in this case was clearly within the scope of rebuttal evidence and within the trial judge's discretion to allow. Since our examination of the record herein fails to disclose any abuse of discretion, we refuse to reverse defendant's conviction on the ground here presented.

Lastly, by way of supplemental brief, defendant sought to raise an additional argument. The issue presented therein, however, was decided adversely to defendant's position in the recent case of People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974). Defendant's contention, therefore, no longer has any merit.

Affirmed.

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PEOPLE v. ATKINS
(Feb 11, 1975)