People v. Coffey, Docket No. 80249

• Decision Date: 05 November 1986
• Docket Number: Docket No. 80249
• Citation: 153 Mich.App. 311,395 N.W.2d 250
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry COFFEY, a/k/a Jerry Coffee, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 250

395 N.W.2d 250

153 Mich.App. 311

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry COFFEY, a/k/a Jerry Coffee, Defendant-Appellant.

Docket No. 80249.

Court of Appeals of Michigan.

Submitted March 4, 1986.

Decided April 25, 1986.

Leave to Appeal Denied Sept. 23, 1986.

Released for Publication Nov. 5, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Mark Sanford, Asst. Pros. Atty., for the People.

Neil C. Szabo, Flint, for defendant-appellant on appeal.

Before WALSH, P.J., and HOOD and HANSEN ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of one count of carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, and two counts of felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Of the several issues raised on appeal, two merit discussion and one requires reversal.

Two conflicting versions of the incidents leading to defendant's arrest were presented at trial. The complainant, Ladetherie Duncan, testified that she got into an argument with defendant and the two other passengers in her car, Walter and Patricia Scott. Duncan testified that she and defendant got out of the car, defendant pulled a pistol from his jacket, held it to her head and threatened to kill her. She said he then threw her on the ground and kicked her in the stomach. In contrast, Patricia and Walter Scott both testified that Duncan retrieved a gun from the trunk of her car and that defendant wrestled the gun away from her and put it in his pocket. Collin Perry, an off-duty police officer moonlighting as a store security guard, testified that Duncan came into the store and informed him that a man had pulled a gun on her in the parking lot. Perry went to the parking lot, identified himself as a police officer, disarmed the defendant, and escorted him into the drug store. Perry testified that he placed the gun on a table and prepared to handcuff the defendant, who then shoved Perry back and grabbed the gun. When defendant grabbed the gun Perry shot him. The defendant did not testify.

Defendant objects on appeal to the trial court's ruling that evidence as to defendant's parole status was admissible as relevant to his credibility. We find no abuse of discretion in the judge's decision after considering the factors enumerated in People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978), to allow defendant to be impeached with evidence of two prior convictions. But a defendant may not be cross-examined as to the duration and details of a prior prison sentence to test his credibility. People v. Rappuhn, 390 Mich. 266, 270-274, 212 N.W.2d 205 (1973). Reversal is not required on this ground, however, because defense counsel told the judge that defendant would not testify if evidence of his prior record was admissible to impeach him. The judge did not abuse his discretion in ruling evidence of the prior convictions admissible for impeachment purposes, and defendant did not testify because of that ruling. The further ruling on defendant's parole status was harmless error.

The other issue meriting our attention concerns defendant's request for a special jury instruction on momentary or innocent possession of a weapon as a defense to the charge of carrying a concealed weapon. The trial court's reason for denying the request is not on the record. While the complainant testified that defendant pulled a pistol from his jacket and held it to her head, defense witnesses testified that the complainant retrieved the pistol from the trunk of her car and that defendant wrestled it from her and put it in his jacket pocket for safekeeping.

The offense of carrying a concealed weapon does not require proof of specific intent, People v. Lane, 102 Mich.App. 11, 14-15, 300 N.W.2d 717 (1980). The purpose of the statute is to prevent a quarreling or criminal person from suddenly drawing a concealed weapon and using it without prior notice to a victim that he or she was armed. People v. Wright, 97 Mich.App. 411, 413, 296 N.W.2d 46 (1980).

At least two jurisdictions have adopted a very limited "innocent possession" defense to a charge of weapons possession. In Hines v. United States, 326 A.2d 247 (D.C.App.1974), the Court analogized this defense to the concepts of excuse and justification. The Court ruled:

"In order to assert the defense of innocent or momentary possession, an accused must show not only an absence of criminal purpose but also that his possession was excused and justified as stemming from an affirmative effort to aid and enhance social policy underlying law enforcement." Id., 248.

Subsequent case law in the District of Columbia has distilled the Hines standard into two elements: (1) possession without criminal intent, and (2) intent to take the item to the police as soon as possible. Stewart v. United States, 439 A.2d 461, 463 (D.C.App.1981...