People v. Cain

• Decision Date: 26 February 1976
• Docket Number: Docket No. 20525
• Citation: 241 N.W.2d 233,67 Mich.App. 433
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph K. CAIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 233

241 N.W.2d 233

67 Mich.App. 433

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph K. CAIN, Defendant-Appellant.

Docket No. 20525.

Court of Appeals of Michigan.

Feb. 26, 1976.

Released for Publication May 5, 1976.

Leave to Appeal Denied July 8, 1976.

Irwin F. Hauffe, II, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and MAHER and WALSH, JJ.

D. E. HOLBROOK, Presiding Judge.

Defendant and two others were charged with an armed robbery which occurred on December 5, 1972. M.C.L.A. § 750.529; M.S.A. § 28.797. On July 12, 1973 a hearing was held on defendant's motion to suppress evidence which was discovered in a search of codefendant Jackson's apartment. The court ruled that the search was valid because Jackson had given his consent, and that in any case, only Jackson had standing to attack the validity of the search. All three defendants were found guilty by a jury as charged. Defendant was sentenced to life imprisonment and he appeals as of right.

At trial, the prosecution introduced a great deal of testimony concerning the robbery itself and the apprehension and identification of the perpetrators. The robbery took place at around 2 p.m. on December 5, 1972 in Richerts' Market in Saginaw County. At that time, Mrs. Richerts, who was working at the liquor counter, noticed some suspicious looking individuals entering the store. She moved over to another counter and activated a buzzer which was intended to notify her husband, who was working in the back room, of the presence of the suspicious looking individuals. She then moved back to the liquor counter to complete a sale that she was making there. Before the sale was completed, one of the individuals approached her, drew a gun and announced a stick-up. Mrs. Richerts screamed for her husband. A shot was fired and Mrs. Richerts slumped to the floor, wounded in the head. Mr. Richerts, who was armed with a concealed .45 caliber handgun, could not come to his wife's aid, however, for he was being held at bay by a second man who wielded a sawed-off shotgun. The Richerts' daughter was also being covered by the individual with the sawed-off shotgun. This individual first demanded and received Mr. Richerts' money. He then produced a bag and ordered Mr. Richerts to begin filling it with handguns which were on display in the store. He threatened to kill the daughter if his demands were not met. Mr. Richerts complied, turning over 13 handguns to the robber. The individual with the sawed-off shotgun was positively identified at trial by both Mr. Richerts and his daughter. Both of them testified it was defendant Cain.

Meanwhile, the third man involved was directing the customer who had been at the liquor counter, a 73-year-old woman, to a cooler in the rear of the store. At one point this woman stumbled and fell, and was viciously kicked by the robber. Eventually, the three robbers forced all of the other people in the store into the cooling compartment. One of the robbers then announced that he would remain on guard for five to ten minutes in order to let the others escape. Mr. Richerts remained in the cooler only long enough to discover that his wife was in no immediate danger of death. He then instructed the others to get up against one of the walls in the cooler and, drawing his handgun, he went out in pursuit of the robbers. Outside the store, he observed them pulling away in their getaway car. He fired at the car, hitting it several times. He then pursued the getaway car in another vehicle until it was finally abandoned at the apartment complex where defendant was ultimately apprehended. There, the robbers exited the vehicle and eluded Mr. Richerts on foot.

Almost immediately, the police, who had been made aware that Mr. Richerts was in pursuit of the robbers, began arriving at the same apartment complex. Soon there were officers present from several law enforcement agencies. A large field next to the apartment complex was surrounded and searched. Several apartments were searched upon request of their occupants, who feared that the criminals may have somehow gained entrance. Finally, the police received an anonymous phone tip that the robbers were in a certain apartment. Several of the officers proceeded to that apartment and knocked upon the door. Defendant Jackson answered the door and identified himself as the occupant of the apartment. The officers informed him of the robbery and the fact that the robbers were believed to be in the area, and asked if they might come in and have a look around. Defendant Jackson consented to this. Also present in the apartment was defendant Cain. At some point, defendant Jackson withdrew his consent and the officers left the apartment. Because one of the officers had recognized defendant Cain as having been previously involved in illegal activities, word was sent to police headquarters to obtain pictures of defendants Cain and Jackson and ascertain whether or not they could be identified by the victims of the robbery. From a group containing photographs of approximately 10 men, the victims were able to identify defendants Jackson and Cain. The officers proceeded back to the apartment and placed those two defendants under arrest. A guard was posted outside the apartment to await the obtaining of a search warrant. When the search warrant was obtained, the ensuing search turned up a sawed-off shotgun, later identified as the one used in the robbery. A handgun and a bag containing 13 other handguns which were identified as the ones stolen from Richerts' Market were also seized.

When the prosecution rested its case, defendants Jackson and Gibson decided to enter no evidence. Defendant Cain took the stand in his own behalf and entered an alibi defense. In short, he claimed that at the time of the robbery he was either at school or in a car traveling from school to defendant Jackson's apartment. Other facts will be related where pertinent.

Defendant Cain first argues that reversible error occurred when the trial court gave the following instruction:

'Now the defendant in this case claimed the defense of what we call alibi. This is defendant Cain, and that is in simple English, that he was at another place all the time of the commission of the crime charged, and I instruct you that this sort of defense is a proper one and is as legal, if proven, as any other defense. You should consider all the evidence bearing upon that point and carefully examine it, and if in view of the evidence you have any reasonable doubt as to whether defendant was at some other place at the time the crime was committed, you should give him, the defendant, the benefit of any doubt and find him not guilty.'

We first note that no objection was made to this instruction at trial. Therefore, even if erroneous, the giving of the instruction will not warrant reversal absent a showing of manifest injustice. People v. McShan, 53 Mich.App. 407, 415, 219 N.W.2d 792, 796 (1974); People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972).

We hold that, far from constituting manifest injustice, the instruction given was substantially correct. The inclusion of the words 'if proven' did not place the burden of proving an alibi defense on the defendant. In People v. Johnson, 58 Mich.App. 60, 65, 227 N.W.2d 228, 231 (1975), we quoted from People v. Johnson, 54 Mich.App. 678, 683--684, 221 N.W.2d 452, 455 (1974):

"'An instruction to the jury concerning the defense of alibi must clearly explain that this defense offers two avenues of relief for the defendant. First, if the alibi is established, a perfect defense has been shown and the defendant should accordingly be acquitted. Alternatively and, perhaps, more importantly, the instruction must clearly indicate that if any reasonable doubt exists as to the presence the defendant at the scene of the crime then, also, the defendant should be...