People v. Charron, Docket No. 16258

• Decision Date: 24 June 1974
• Docket Number: Docket No. 16258,No. 1,1
• Citation: 54 Mich.App. 26,220 N.W.2d 216
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Kenneth CHARRON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 216

220 N.W.2d 216

54 Mich.App. 26

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Kenneth CHARRON, Defendant-Appellant.

Docket No. 16258.

Court of Appeals of Michigan, Division No. 1.

June 24, 1974.

Released for Publication July 24, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

Defendant was found guilty by a jury of carrying a concealed weapon contrary to M.C.L.A. § 750.227; M.S.A. § 28.424, was sentenced to 2 to 5 years in prison and appeals as of right.

The proofs adduced at trial showed that in the early morning hours of August 22, 1972 a plainclothes police officer, while having a cup of coffee in an all-night restaurant, observed two men entering the establishment. The officer's attention was drawn to these men by reason of the fact that one of the men had what appeared to be a severe cut on his neck. As the men sat down the officer observed what appeared to be a knife protruding from the rear pocket of the pants of the uninjured man. The officer immediately went out of his automobile and radioed to the station and requested that uniformed officers be dispatched to that location. The officer waited outside the restaurant until the uniformed officers arrived. When the uniformed officers approached the pair and began to question the injured man about the wound, the uninjured man, defendant herein, became belligerent and started mouthing obscenities. Defendant was arrested as a disorderly person. As defendant arose from the table, one of the officers observed the knife blade sticking from defendant's rear pocket, whereupon defendant was immediately arrested on the charge of carrying a concealed weapon.

The defense asserted by defendant at trial, after an unsuccessful attempt to have the knife suppressed as the fruit of an illegal search, was that since the knife was sufficiently visible to come within the 'plain view doctrine', it was not a concealed weapon within the meaning of the statute. At the close of proofs defendant moved for a directed verdict of acquittal on the ground that the people had failed to prove the necessary element of concealment. The trial court denied the motion on the basis that the question of concealment was one for the jury to determine under the particular circumstances.

On appeal defendant asserts that the trial court erred in denying the motion for a directed verdict. We find no merit in this assertion. As stated in People v. Jones, 12 Mich.App. 293, 296, 162 N.W.2d 847, 849 (1968):

'The evident statutory purpose is reflected in the general rule applied in other jurisdictions that absolute invisibility is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.'

The touchstone is thus whether the weapon is discernible as such by the ordinary observations of those coming in contact with the person carrying the weapon. The fact that the weapon is in plain view at one point in time does not negate, as a matter of law, the finding that under any particular set of circumstances there was the necessary concealment. Even though the blade of the knife was visible to the officers when defendant was in the act of sitting down or standing up, there was a question of fact whether there was concealment within the meaning of the statute. See also, People v. Stirewalt, 16 Mich.App. 343, 167 N.W.2d 779 (1969); People v. Iacopelli, 30 Mich.App. 105, 186 N.W.2d 38 (1971).

While there was sufficient evidence upon which the jury could find guilt beyond a reasonable doubt, we are nevertheless compelled to reverse defendant's conviction and remand the matter for a new trial. Prior to the trial, defense counsel sought to have references to the fact that defendant's companion had a cut throat suppressed, since such references were not germane to the charge at hand and were highly inflammatory, particularly in light of the absence of any evidence showing that defendant cut the companion's throat. The people argued that such testimony was admissible as part of the res gestae and under the 'similar act statute'. ¹ The trial court, recognizing that such references would indeed be highly prejudicial, indicated that he would instruct the jury that there was no evidence linking the defendant to the cut throat. The court further held that since the charged crime was not a specific intent crime, the manner in which the injured party received the cut throat was not admissible under the statute, since the question of motive, scheme, plan or intent was not at issue. The court did, however, rule that the people could, as part of the res gestae, show that defendant's companion had a cut throat when he was in the restaurant.

Had the prosecutor limited his references to the cut throat to the fact that it was this condition that originally caused the plainclothes officer to notice the pair, we would be inclined to hold that such reference was properly admitted as part of the res gestae, although even that reference was hardly necessary to the proof of the charged crime; however, the prosecutor was not content with that. The prosecutor in questioning the plainclothes officer brought out, over defense counsel's objection, not only the fact that defendant's companion had a cut on the neck, but also that there was great quantities of blood on the injured party's shirt, that the cut was not what one would associate with a shaving nick but rather much larger and that the officer also observed blood on defendant's clothes. In questioning the arresting officers, the prosecutor asked if they had observed anything on the knife found in defendant's pocket which would appear to be blood, to which was replied there were red spots on the knife. The prosecutor again took the opportunity to bring out the fact that there was a great quantity of blood emanating from the cut. The prosecutor called the injured companion and proceeded to inquire how his throat was. The prosecutor then had this person show the scar on his neck to the jury over a defense objection.

Not content by the prejudice engendered by these references, the prosecutor launched into a closing statement which could leave the jury with little doubt that the prosecutor felt that there was a much more far-reaching question than merely a concealed weapons charge. After demonstrating to the jury with his keys that an object would be concealed if sat upon, the prosecutor stated:

'But, if I stand up like this, these keys are there and the fellow over across the table, across from me who has his throat cut and the knife isn't concealed anymore; it is apparent.

'So, I guess I am saying before I get rid of my keys I guess what I'm saying is you know it is a matter of whether or not the knife is concealed, whether you intend it to be concealed. If you are carrying a gun, you can have it concealed and the gun butt can be sticking out.

'But, if your coat is wide open and the man can see it, it is not concealed anymore.

'So, what is your intention? All right, now I will give you the facts. I will also give you the fact that the fellow may be drunk and therefore not as good as he should be when he is sober in concealing things, but he might stick a fairly large knife in his pocket and be of the opinion that nobody is going to see it.

'You know what you, as an ordinary type citizen think about someone who carries a knife around that size and if you are carrying it around that size do you have any reason for carrying it around? When it is that size, are you a cook? You are just off duty or something like that, what do you want it for? Stock it in your pocket so it is hard to see, part of it sticking out, what have you got it for?

'You know, I ask you to think of the scene in this restaurant. It is an all night Beanery where you have got a booth, got a table, and got a guy sitting on one side and you have got a guy sitting on the other side and one of the fellows has got his throat cut. He didn't die, but you saw the scar up there. What's that all about? Is he a butcher coming home from his place of business and got a knife in his pocket?

'Is he a hunter; is he a fisherman? What is the situation? What should you as jurors do with a set of facts? Is it criminal or is it not criminal? That's what is before you.

'Not simply is it...