People v. Bailey
| Decision Date | 03 March 1981 |
| Docket Number | 47832,Docket Nos. 47831 |
| Citation | 104 Mich.App. 146,304 N.W.2d 507 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Ray BAILEY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Trevor Derrick BOYD, Defendant-Appellant. 104 Mich.App. 146, 304 N.W.2d 507 |
| Court | Court of Appeal of Michigan — District of US |
[104 MICHAPP 149] Ronald B. Shamblin, Lapeer, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Earl Morgan, Jr., Pros. Atty., John G. Strand, Asst. Pros. Atty., for plaintiff-appellee.
Before BRONSON, P. J., and J. H. GILLIS and CYNAR, JJ.
Defendants were charged in a four-count information with kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Both defendants were convicted on all four charges. Defendant Bailey was sentenced to three concurrent terms of imprisonment of 13 to 40 years, as well as the mandatory 2-year consecutive sentence on the felony-firearm conviction. Defendant Boyd was sentenced to three concurrent terms of imprisonment of 18 to 40 years, plus the mandatory 2-year term [104 MICHAPP 150] for the felony-firearm conviction. Defendants appeal as of right.
The bare-bones facts gleaned from the record are as follows. On January 1, 1979, Alphonzo Bowe, Jr., had stopped at a McDonald's in Flint before returning to Detroit from his parents' home. While in the restaurant, Bowe agreed to give the defendants a ride to their motel in return for $2. However, as Bowe was driving to the motel, Bailey put a .38-caliber derringer to Bowe's head, and Boyd said that he, too, was armed.
During the ensuing ride, Bowe was told to move over to the passenger seat and let Boyd drive. Bailey was still sitting in the back seat with the gun to Bowe's head. Bailey removed $26 from Bowe's pocket and, during a fight for the gun, Boyd choked Bowe. After the fight, Bailey stated several times that the gun was jammed.
At some point, the car was pulled on to the shoulder of a local expressway. When a state police car pulled up behind Bowe's car minutes thereafter, Boyd exited from the car and told Trooper Bohnett that everything was fine. However, Bohnett noticed that a scuffle had just started in the car, and heard one of the occupants yelling about a gun. Bohnett grabbed Boyd, spun Boyd around in front of him, and pulled his gun. Trooper Wilson opened the passenger door, after drawing his gun, and Bowe exited from the car screaming that he had been robbed and needed help.
Wilson spun Bowe around and Bohnett heard a gun hit the roof of the car. Wilson took the gun from Bowe, who had apparently wrested it from Bailey during the scuffle in the car. Bohnett then drew a second gun and aimed it at Bailey, who was still in the car. Although Bowe continued to [104 MICHAPP 151] say that he had been robbed, neither Bailey nor Boyd moved or said anything, until Boyd yelled that he had been robbed and Bailey agreed.
Initially, all three individuals were taken into custody and searched. The .38 derringer was identified as being registered to Boyd's stepmother. Two .38-caliber shells were found in the gun. Bowe had $2 or $3 and some change in his pants pocket, Bailey had $10.35, and Boyd had a total of $42.20; $16.20 in one pocket and $26.00 in another pocket. In the vehicle, which was searched with Bowe's consent, Wilson found two .38-caliber shells and five $1 bills on the floor. A motel maid found seven .38-caliber shells in the room assigned to defendants when they registered on January 1, 1979.
After they were arrested, Bowe made a statement consistent with the above facts, adding only that he started the scuffle with Bailey, while Boyd was talking with Bohnett, in order to get the trooper's attention. After waiving their Miranda 1 rights, Bailey and Boyd stated that they had asked Bowe for a ride to the motel, and had been held up shortly after Bowe began driving towards the motel. Later, Boyd said he could not remember what happened after he and Bailey entered the vehicle. Although each defendant made his statement in the absence of the other, testimony indicated that they had spoken together for several minutes just before talking to the police. During this conversation, the two agreed on the substance of their statements.
At trial, Boyd testified substantially as follows. Boyd stated that he had been given the gun by Bailey's stepsister, in order that he might sell it. When he and Bailey had been driven to the motel [104 MICHAPP 152] by Bailey's father, Boyd left the gun near a tree in Bailey's front yard. Later that evening, he hitch-hiked back to the Bailey home in order to get the gun. The person who gave Boyd a ride to Bailey's house was Bowe. During that ride Bowe suggested that he might be willing to buy the gun, and agreed to meet Boyd and Bailey at the McDonald's as soon as he (Bowe) got the money needed to make the purchase. Thereafter, Boyd and Bailey met Bowe at the McDonald's and drove with him to find an isolated area in which Bowe might try shooting the gun. During the ride, Bowe asked Boyd to drive so that Bowe might examine the derringer. When Boyd pulled on to the shoulder of the expressway, at Bowe's request, Bowe brandished the loaded pistol and told Bailey and Boyd to get out of the car. Just at that moment the state police car pulled up behind Bowe's car. Bailey's trial testimony corroborated Boyd's testimony.
Defendants raise seven issues on appeal. They will be briefly discussed seriatim.
Defendants first challenge the trial court's decision to grant the prosecutor's motion to consolidate the two cases for trial.
Michigan law strongly favors joint trials. M.C.L. § 768.5; M.S.A. § 28.1028, People v. Slate, 73 Mich.App. 126, 127, 250 N.W.2d 572 (1977). A decision to join or consolidate two cases will not be reversed on appeal "in the absence of a showing of prejudice to substantial rights of the accused." People v. Schram, 378 Mich. 145, 156, 142 N.W.2d 662 (1966).
Defendants claim that they were prejudiced at trial by the admission into evidence of their statements to the police which were inconsistent with [104 MICHAPP 153] their trial testimony. We find no prejudice. The pretrial statements were substantially identical, as was each defendant's trial testimony. Even if the defendants were impeached by their own prior inconsistent statements, such impeachment could have occurred without the consolidation. Neither of the defendants' statements nor trial testimony had any tendency to incriminate the other defendant.
Because shared counsel is not per se prejudicial, People v. Tillman, 59 Mich.App. 768, 770, 229 N.W.2d 922 (1975), People v. Perna, 23 Mich.App. 507, 509, 179 N.W.2d 43 (1970), we likewise reject defendants' claim in that regard. Certainly, counsel's failure to highlight defendant Boyd's status as an aider and abettor is irrelevant. See, M.C.L. § 767.39; M.S.A. § 28.979, which abolishes the distinction between accessories and principals.
Defendant Boyd's claim that he was improperly convicted of felony-firearm is likewise rejected. An aider and abettor need not have possession of the firearm to be convicted under M.C.L. § 750.227b; M.S.A. § 28.424(2). People v. Tavolacci, 88 Mich.App. 470, 473-474, 276 N.W.2d 919 (1979), lv. gtd. 407 Mich. 882 (1980).
At trial, the prosecutor questioned the arresting officers as to the "demeanor" of the defendants and the victim just prior to their arrests. Both officers testified that as soon as they approached the car, Bowe immediately and excitedly stated that he had been robbed. The defendants, on the other hand, had initially remained silent and [104 MICHAPP 154] calm. Defendants claim on appeal that such testimony, coupled with the prosecutor's closing argument stressing the officers' recollections, was nothing but an attempt to use the defendants' silence against them.
The prosecutor excuses the testimony and argument thereon because the questions were designed to explore all of the facts and circumstances surrounding the offenses. He cites People v. Savage, 225 Mich. 84, 86, 195 N.W. 669 (1923), in support of his position:
"It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as part of the res gestae."
A review of the cases which have relied on this portion of Savage reveals that no case has yet applied the rule to a defendant's silence. Indeed, the Supreme Court has clearly stated that testimony as to a defendant's silence may not be offered into evidence as part of the res gestae of an offense. People v. Bobo, 390 Mich. 355, 361, 212 N.W.2d 190 (1973). See also, MRE 801(d)(2)(B).
Contrary to defendant's contention, however, the prosecutor did not impermissibly use the defendants' right to silence against them. Rather, the prosecutor's questions, the witnesses' answers, and the prosecutor's closing argument focused on the fact that the alleged victim was the first of the three to state that a robbery had taken place or was in progress. The record clearly reveals that, after Bowe's statement, one or both of the defendants stated that Bowe had robbed them and that they then were told to be quiet by the officer who had his gun aimed at them. We thus conclude that [104 MICHAPP 155] no error occurred when the prosecutor explored the defendants' statements and demeanors just before their arrest. Certainly, this testimony was relevant to the defendants' claim that they were the robbery victims.
Assault with intent to murder, M.C.L. § 750.83; M.S.A. § 28.278, is a specific intent crime. People v. Fields, 64 Mich.App. 166, 173, 235 N.W.2d 95 (1975), People v....
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People v. Brown
...149 Mich.App. 665, 668, 386 N.W.2d 637 (1986); People v. Mack, 112 Mich.App. 605, 611, 317 N.W.2d 190 (1981); People v. Bailey, 104 Mich.App. 146, 155, 304 N.W.2d 507 (1981). However, the requisite specific intents for these two offenses differ. The elements of assault with intent to do gre......