People v. Davis

• Decision Date: 07 June 1984
• Docket Number: Docket No. 65303
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Ray DAVIS, Defendant-Appellant. 133 Mich.App. 707, 350 N.W.2d 796
• Court: Court of Appeal of Michigan — District of US

Page 796

350 N.W.2d 796

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Ray DAVIS, Defendant-Appellant.

Docket No. 65303.

133 Mich.App. 707, 350 N.W.2d 796

Court of Appeals of Michigan.

Submitted Dec. 6, 1983.

Decided April 16, 1984.

Released for Publication June 7, 1984.

[133 MICHAPP 709] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief Civil and Appeals, Asst. Pros. Atty., and Rosemary A. Gordon, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Susan J. Smith, Detroit, for defendant-appellant on appeal.

Before T.M. BURNS, P.J., and MacKENZIE and ROBINSON ^*, JJ.

PER CURIAM.

Defendant appeals as of right his jury conviction of breaking and entering with intent to commit a larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Defendant raises several issues on appeal, none of which we find require reversal of his conviction.

Having received information that a yellow Camaro had been used as a getaway car in a number of Wayne County breaking and enterings, the Detroit police commenced surveillance of defendant's vehicle, a yellow Camaro. On the fifth day of the surveillance operation, police officers from Detroit and Dearborn followed the vehicle to a residential area in Allen Park where the vehicle slowly cruised up and down some streets before stopping in front of a house. The owner of the house testified that she was away from home at that time. The police officers testified that defendant's brother knocked on the front door and waited for about a minute, went around the side of [133 MICHAPP 710] the house to another door, on which he used some type of instrument, and then returned to the vehicle. Defendant and his brother then parked the vehicle farther away from the house and returned on foot. Defendant and his brother were observed walking to the rear of the house, after which various lights in the house became illuminated and the shadows of persons moving about in the house were observed. However, none of the officers actually observed defendant and his brother enter the house. Defendant and his brother were subsequently observed walking from the rear of the house to the car, each carrying large objects covered with blankets or sheets. One item was placed in the back seat of the car and other objects were placed in the trunk.

Just after defendant and his brother entered the car, the police officers converged on the car and placed both men under arrest. After the arrest, one of the officers observed that the rear door of the house had been pried open and that some of the contents of the house were in disarray. In response to a radio dispatch, an Allen Park police officer arrived on the scene, and defendant and his brother were transported to the Allen Park lockup facility. The Camaro was towed to the Allen Park police department's garage, where it was searched. A television set was seized from the back seat of the vehicle, and a movie camera, piggy banks, costume jewelry, wall clock, radio, and another television set were seized from the trunk. These items, which were admitted over defendant's pretrial motion to suppress, were identified by the complainant as property taken from her house.

Defendant testified that he and his brother on the night of the offense were "scabbing", i.e., looking[133 MICHAPP 711] for discarded property left outside of residences in the area. Seeing a "for sale" sign in front of the complainant's home, defendant theorized that unwanted furniture may have been left behind if someone was moving out of the house. His brother knocked on the front door and, not receiving a response, returned to the car. However, while driving away, the men noticed a light go on in the house, and so parked the car and returned on foot. Defendant and his brother knocked on the rear door, a man opened the door, and defendant asked him if he was throwing away the two televisions and other items laying on the ground outside the door. The man responded in the affirmative, and told defendant and his brother they could take the items. After putting the items in the car, defendant and his brother were arrested. There was no evidence corroborating defendant's testimony that a man was inside the house at the time of the offense.

I

Defendant first claims that the court erred in allowing the prosecutor to impeach defendant with evidence of his prior convictions of larceny in a building and conspiracy to tamper with a motor vehicle. A trial court's decision to admit or exclude evidence of prior convictions under MRE 609(a) will not be disturbed on appeal absent an abuse of discretion. People v. Wilson, 107 Mich.App. 470, 475, 309 N.W.2d 584 (1981). The record reflects that the trial court recognized its discretion, and considered and properly applied the factors set forth in People v. Crawford, 83 Mich.App. 35, 268 N.W.2d 275 (1978). Indeed, the trial judge did suppress evidence of defendant's prior conviction for attempted breaking and entering on the ground that [133 MICHAPP 712] the conviction was too similar to the offense charged and evidence of a prior conviction for felonious assault on the basis that it was not probative of credibility.

We find no abuse of discretion in the court's admission of evidence of defendant's prior conviction for larceny in a building. As a theft offense, the conviction was probative of defendant's credibility. People v. Pedrin, 130 Mich.App. 86, 343 N.W.2d 243 (1983); People v. Jones, 98 Mich.App. 421, 432, 296 N.W.2d 268 (1980). That conviction was only somewhat similar to the charged offense of breaking and entering with intent to commit a larceny, and we cannot say that the court abused its discretion in finding that the probative value of the evidence outweighed its prejudicial effect. Even evidence of prior convictions for an offense identical to the crime charged may be admitted under MRE 609(a). People v. Moss, 113 Mich.App. 626, 628, 318 N.W.2d 501 (1982).

With respect to defendant's prior conviction for conspiracy to tamper with a motor vehicle, defendant argues that tampering with a motor vehicle, M.C.L. Sec. 750.416; M.S.A. Sec. 28.648, does not necessarily involve an attempt to steal the vehicle since the statute encompasses intentionally damaging a vehicle and that evidence of that conviction was not probative of credibility. The trial judge noted that the conviction was the result of a plea bargain and determined that it involved a crime of theft and therefore that evidence of the conviction was probative of defendant's credibility. The record reflects that defendant's "rap sheet" was presented to the trial judge, but does not reflect whether it apprised the judge of some additional facts which indicated that the conviction arose out of a theft or attempted theft. In any event, we find that, [133 MICHAPP 713] even if admission of evidence of that conviction was error, it was harmless beyond a reasonable doubt in view of the strength of the police testimony relating defendant's activities and the fact that defendant was properly impeached with evidence of another prior conviction. Compare People v. Karam, 106 Mich.App. 383, 395-396, 308 N.W.2d 220 (1981), lv. den. 414 Mich. 870 (1982); People v. Mustafa, 95 Mich.App. 583, 585-586, 291 N.W.2d 130 (1980).

II

Defendant next argues that the trial court abused its discretion in refusing to strike the testimony of sequestered police witnesses who discussed their testimony among themselves during the trial. The record reveals that one officer admitted that, during the lunch break, he discussed with another officer his testimony regarding the route he took while following the Camaro through Allen Park. Another police officer admitted that the officers had conversed about the case during the course of the trial, but that the conversation had not helped his memory. Another officer testified that during the trial the police officers had talked about details of the case but had not discussed their testimony.

Prior to trial, defense counsel stated that it was unnecessary to move for sequestration because all the prosecution witnesses had voluntarily left the courtroom. Thus, although there was no formal sequestration order entered by the court, defendant asserts that we must treat this case as if a sequestration order had been entered based on the prosecution's voluntary sequestering of its witnesses, and the prosecution on appeal does not argue otherwise. Nevertheless, in a previous decision[133 MICHAPP 714] involving police officers discussing the case during the trial, this Court explained that a sequestration order alone does not automatically put the witnesses on notice that they are not to discuss their testimony and thus held there was no violation of the sequestration order in that case. People v. Stanley, 71 Mich.App. 56, 61-62, 246 N.W.2d 418 (1976). Where the trial court is not requested to caution the sequestered witnesses not to discuss the evidence, the sequestration order is not violated by such discussion, and therefore the court does not abuse its discretion in permitting the witnesses to testify. People v. Linzey, 112 Mich.App. 374, 379, 315 N.W.2d 550 (1981); People v. Stanley, supra. Likewise, in the present case, defendant did not request the court to caution the police officers not to discuss the case, and there is no indication in the record that the witnesses had been advised by the prosecutor not to discuss the case so that defendant was lulled into believing that such a request was unnecessary. Hence, we conclude that the court did not abuse its discretion in denying defendant's motion to strike the police officers' testimony.

III

Although defendant does not dispute that there existed probable cause to arrest him, he claims that his arrest in Allen Park by the Detroit and Dearborn surveillance team was unlawful since at that time the latter were not acting in...