People v. Dixon, Docket No. 45428

• Decision Date: 03 September 1980
• Docket Number: Docket No. 45428
• Citation: 99 Mich.App. 847,298 N.W.2d 647
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James DIXON, Defendant-Appellant. 99 Mich.App. 847, 298 N.W.2d 647
• Court: Court of Appeal of Michigan — District of US

Page 647

298 N.W.2d 647

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James DIXON, Defendant-Appellant.

Docket No. 45428.

99 Mich.App. 847, 298 N.W.2d 647

Court of Appeals of Michigan.

Sept. 3, 1980.

Released for Publication Dec. 9, 1980.

James R. Neuhard, State Appellate Defender, [99 MICHAPP 849] Kim R. Fawcett, Asst. State Appellate Defender, for defendant-appellant.

[99 MICHAPP 848] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., George A. Best, II, Asst. Pros. Atty., for plaintiff-appellee.

[99 MICHAPP 849] Before BASHARA, P. J., and RILEY and QUINNELL, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of assault with intent to rob while being armed, M.C.L. § 750.89; M.S.A. § 28.284, and appeals of right.

Prior to trial, the defendant moved to suppress evidence of two prior convictions. The court ultimately ruled that evidence of the two prior convictions could be shown if defendant testified, but only as unspecified felonies for impeachment purposes. The ruling was erroneous, People v. Jones, 92 Mich.App. 100, 284 N.W.2d 501 (1979); People v. Garth, 93 Mich.App. 308, 287 N.W.2d 216 (1979).

Accordingly, we reverse the defendant's conviction and remand for a new trial. We note the recent amendment to MRE 609(a)(2), which requires that the trial court place on the record its consideration of the Crawford ¹ factors.

We suggest to the trial court that, on retrial, it confine its definition of dangerous weapon to CJI 17:4:03, deleting the word "knives." Given the somewhat equivocal character of the pocket knife involved in this incident, and with the abundant (albeit disputed) proof as to the use of the pocket knife, there can be no harm in being scrupulously careful in framing the instructions to refrain from giving the jury the impression that one of the elements of the offense had been established as a matter of law.

We also suggest that the prosecutor carefully instruct his witnesses to refrain from giving any [99 MICHAPP 850] testimony as to the defendant's assertion of his right to remain silent in order to avoid any reversible error, People v. Parks, 57 Mich.App. 738, 226 N.W.2d 710 (1975). Parks remains as an accurate statement of applicable Michigan law, unless our Supreme Court reexamines principles enunciated in People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973) in light of Jenkins v. Anderson, --- U.S. ----, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Defendant also contends that the court reversibly erred by refusing to suppress a toy gun seized from the defendant at the time of arrest. We disagree. Although the gun was not actually used in the assault, it was relevant and admissible as reflective of defendant's specific intent and as part of the res gestae of the crime. People v. Castillo, 82 Mich.App. 476, 266 N.W.2d 460 (1978). Finally, defendant claims the court erred in...