People v. Allen

• Citation: 505 N.W.2d 869,201 Mich.App. 98
• Decision Date: 02 August 1993
• Docket Number: Docket No. 136801
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Talvest ALLEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 869

505 N.W.2d 869

201 Mich.App. 98

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Talvest ALLEN, Defendant-Appellant.

Docket No. 136801.

Court of Appeals of Michigan.

Submitted May 13, 1993, at Detroit.

Decided Aug. 2, 1993, at 9:40 a.m.

Released for Publication Oct. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Kathleen T. Donahue, Asst. Pros. Atty., for People.

Rose Mary C. Robinson, Detroit, for defendant on appeal.

Before JANSEN, P.J., and REILLY and KNOBLOCK, ^* JJ.

REILLY, Judge.

Defendant appeals as of right from his convictions, after a jury trial, of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). We affirm defendant's felony-murder and felony-firearm convictions and vacate his conviction of and sentence for armed robbery.

I

Defendant first argues that the trial court erred in denying his motion for a directed verdict because insufficient evidence was presented to support the charge of felony murder. Specifically, defendant contends that there was insufficient evidence regarding the underlying crime of armed robbery.

This Court reviews a challenge to the sufficiency of the evidence by viewing the evidence in a light most favorable to the prosecution and determining whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980). Circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. People v. Reddick, 187 Mich.App. 547, 551, 468 N.W.2d 278 (1991).

The essential elements of an armed robbery are (1) an assault, and (2) a felonious taking of property from the victim's person or presence, while (3) the defendant is armed with a weapon described in the statute. People v. Newcomb, 190 Mich.App. 424, 430, 476 N.W.2d 749 (1991). On the basis of our review of the record, we conclude that there was sufficient evidence regarding the element of assault and sufficient evidence to show that defendant was armed with a weapon described in the statute. Furthermore, we believe that, viewing the evidence in a light most favorable to the prosecution, a jury could have reasonably inferred that there was a felonious taking of property from the victim.

Testimony was presented that established that the victim wanted to buy crack cocaine and that she asked defendant if he could supply a "$2 crumb." Defendant responded that the victim would have to "do him," and the victim and defendant went into an apartment building. A neighbor heard a man and a woman fighting and heard a voice that she recognized as the victim's say "Stop, stop, I don't have no more." There was also testimony that no money was found on the victim when she was discovered at the bottom of a stairwell in the apartment building dead as a result of five gunshot wounds to the head. Lastly, the testimony of a witness established that defendant was seen leaving the apartment building with money in his hands. ¹

We believe that a jury could reasonably infer that the victim had at least two dollars on her before her death, and that this money was taken by defendant during the struggle preceding her death. Contrary to defendant's argument, the hearsay statement made by the victim, "Stop, stop, I don't have no more" was properly admitted and considered by the trial court in denying defendant's motion for a directed verdict. The statement was admissible under the excited utterance exception to the hearsay rule. MRE 803(2); People v. Ellis, 174 Mich.App. 139, 143-144, 436 N.W.2d 383 (1988). People v. Jones, 115 Mich.App. 543, 549-550, 321 N.W.2d 723 (1982), aff'd.419 Mich. 577, 358 N.W.2d 837 (1984).

II

Next, defendant asserts that he was denied his right to a fair trial when the prosecutor was allowed to question him about his postarrest, post-Miranda warnings ² silence.

The Due Process Clause of the Fourteenth Amendment prohibits the use of postarrest, post-Miranda warnings silence to impeach a defendant's exculpatory story at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); People v. Sutton (After Remand), 436 Mich. 575, 592, 464 N.W.2d 276 (1990) (opinion by Boyle, J). However, this rule is inapplicable where a defendant claims to have told the police the same version of the exculpatory story upon arrest. Id. at 593, 464 N.W.2d 276. The Doyle Court, citing United States v. Fairchild, 505 F.2d 1378 (CA 5, 1975), made the following distinction:

It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. [Doyle, supra 426 U.S. at 619-620, n. 11, 96 S.Ct. at 2245, n. 11.]

In the present case, defendant did not claim to have told the police the same version of his exculpatory story upon arrest. Rather, his claim on redirect examination was that the trial was his first opportunity to tell his version of the events. ³ We believe that this case falls within the exception permitting impeachment of a defendant's version of his postarrest behavior. Doyle, supra 426 U.S. at 633, 96 S.Ct. at 2251-52; Fairchild, supra. Although defendant's testimony would not have permitted the prosecutor to argue that his postarrest silence was inconsistent with his claim of innocence, it did permit the prosecutor to attempt to discredit defendant's testimony by showing that defendant did have an opportunity before the trial to tell his side of the story. See United States v. Mavrick, 601 F.2d 921, 933 (CA 7, 1979). Having raised the issue of his opportunity to explain his version of the events, he "opened the door to a full and not just a selective development of that subject." Fairchild, supra at 1383; Mavrick, supra.

Additionally, we conclude that the prosecutor's comments during closing argument regarding defendant's opportunity to explain were not improper. The prosecutor did not use the evidence of defendant's silence as direct evidence of defendant's guilt. Compare Fairchild, supra at 1383. Rather, the remarks were aimed at rebutting the impression that defendant did not have an opportunity to tell his version of the events.

III

Defendant also argues that certain comments made by the prosecutor during closing argument denied him a fair trial. We disagree.

Questions of prosecutorial misconduct are decided case by case. The reviewing court examines the record and evaluates the prosecutor's remarks in context. People v. Foster, 175 Mich.App. 311, 317, 437 N.W.2d 395 (1989). The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Id. Appellate review of prosecutorial misconduct is foreclosed where the defendant fails to object or request a curative instruction, unless the misconduct was so egregious that no curative instruction could have removed the prejudice to the defendant or if manifest injustice would result from our failure to review the alleged misconduct. People v. Buck, 197 Mich.App. 404, 418, 496 N.W.2d 321 (1992).

We have already concluded that the prosecutor did not improperly comment about defendant's exercise of his right to remain silent after arrest. Additionally, we conclude that pursuant to People v. Buckey, 424 Mich. 1, 378 N.W.2d 432 (1985), the trial court properly permitted the prosecutor to comment about defendant's opportunity to conform his testimony to that of the other witnesses presented at trial. Contrary to defendant's argument on appeal, we do not believe that the prosecutor implied that defense counsel had assisted defendant in misleading the jury. Nor do we find that the prosecutor's comments implicated the attorney-client privilege. Id. at 15, 378 N.W.2d 432.

Defendant cites several other comments that he claims denied him a fair trial. However, no objections were made. We have carefully reviewed the record and conclude that a curative instruction could have remedied any prejudice arising from the comments. No manifest injustice will result from our failure to grant defendant relief in this respect. Buck, supra at 418, 496 N.W.2d 321.

IV

Next, defendant asserts that the trial court should have given the requested cautionary accomplice instructions, CJI2d 5.5 and 5.6, with regard to the testimony of Keith Robinson. CJI2d 5.5 defines "accomplice" as a "person who knowingly and willingly helps or cooperates with someone else in committing...