PEOPLE OF MI V FRANK STEVENS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 6, 1998
Plaintiff-Appellee,
v
No. 196156
Macomb Circuit Court
LC No. 93-002597 FH
FRANK STEVENS a/k/a FRANK STEVEN
BUTLER,
Defendant-Appellant.
Before: Wahls, P.J., and Holbrook, Jr. and Fitzgerald, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of conspiracy to commit malicious destruction of
personal property over $100, MCL 750.157a; MSA 28.354(1), two counts of malicious destruction of
personal property over $100, MCL 750.377a; MSA 28.609(1), conspiracy to commit arson, MCL
750.157a; MSA 28.354(1), arson of real property, MCL 750.73; MSA 28.268, and two counts of
arson of personal property, MCL 750.74; MSA 28.269. He was sentenced to five years’ probation as
to all counts, to be served concurrently, with the first year to be served in the Macomb County Jail.
Defendant now appeals as of right. We affirm.
Defendant first argues that the trial court erred in denying his motion for a new trial. He claims
that the verdict was against the great weight of the evidence because a crucial witness’s credibility was
suspect. We reject this argument. Our Supreme Court has recently clarified the proper standard in
evaluating a motion for a new trial: “A trial judge does not sit as the thirteenth juror in ruling on motions
for a new trial and may grant a new trial only if the evidence preponderates heavily against the verdict so
that it would be a miscarriage of justice to allow the verdict to stand.” People v Lemmon, 456 Mich
625, 627; 576 NW2d 129 (1998).
New trial motions which depend solely on the weight of evidence concerning witness credibility
are not favored, and absent exceptional circumstances, credibility questions are for the jury. Id. at 636,
639, 642. In defining the exceptions to this general rule, the Court indicated that exceptional
circumstances might be found “‘[w]here testimony is patently incredible or defies physical realities,’
‘[w]here a witness’s testimony is material and is so inherently implausible that it could not be believed by
a reasonable juror,’ or where the testimony has been seriously ‘impeached’ and the case marked by
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‘uncertainties and discrepancies.’” Id. at 643-644 (citations omitted). However, the Court cautioned
that a judge’s disagreement with the jury’s verdict is not grounds for a new trial. Id. at 644.
Here, defendant claims that witness John Pree “was an incredible liar.” However, the
information Pree provided regarding the acts of vandalism and the firebombing were consistent with
police reports. In addition, other testimony given by Pree was corroborated both by the police officer
in charge of the investigation and by an FBI agent. Even defendant’s own testimony confirmed some of
Pree’s statements. Thus, while there were inconsistencies in Pree’s testimony, much of his testimony
was corroborated by other witnesses. Under these circumstances, there is no justification for departure
from the general rule that questions regarding credibility are for the jury. Accordingly, the trial court did
not abuse its discretion in denying defendant’s motion for a new trial.
Next, defendant argues that the trial court erred in excluding portions of a letter written by
Macomb County Prosecutor Carl Marlinga. We disagree. The decision to admit evidence will not be
reversed absent an abuse of discretion. People v McElhaney, 215 Mich App 269, 280; 545 NW2d
18 (1996).
Marlinga’s letter included a statement that “there is no credible evidence to indicate that City
Management Company (or any officer, employee or person connected with your company) is guilty of
or suspected of any criminal wrong doing whatsoever.” Defendant argues that this statement amounts
to an admission that Pree is not credible. We find nothing in the record to support this assertion.
Marlinga could have believed that Pree was telling the truth and still concluded that there was no
“credible evidence” implicating City Management Company. In any event, as we noted above,
questions of credibility are for the jury, and Marlinga’s opinion on this issue was irrelevant.1 Thus, the
trial court did not abuse its discretion in excluding portions of the letter.
Finally, defendant argues that he was denied a fair trial because his trial was not severed from
that of his codefendant. Defendant has not provided this Court with a copy of the motion to sever or
the trial court’s disposition as to that motion.2 Therefore, this issue would normally be considered
waived on appeal. People v Anderson, 209 Mich App 527, 535; 531 NW2d 780 (1995).
Moreover, because defendant and codefendant’s defenses were not “irreconcilable” or “mutually
exclusive,” joinder of their cases was proper. People v Hana, 447 Mich 325, 331, 349-350; 524
NW2d 682 (1994).
Affirmed.
/s/ Myron H. Wahls
/s/ Donald E. Holbrook, Jr.
/s/ E. Thomas Fitzgerald
1
As our Supreme Court has noted, one witness’s opinion regarding the credibility of another witness “is
not probative of the matter.” People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985).
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2
We note that there is evidence in the record that someone made a motion to sever, and that the motion
was denied. However, it is not clear whether it was defendant or one of his codefendants that made the
motion, nor is it clear what arguments were made in support of the motion.
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