People v. Gardner
| Decision Date | 17 April 1978 |
| Docket Number | No. 4,4 |
| Citation | 265 N.W.2d 1,402 Mich. 460 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Lee GARDNER and Dwight Sanford, Defendants-Appellants. |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Research, Training & Appeals, Timothy A. Baughman, Asst. Pros. Attys., Detroit, for plaintiff-appellee.
Carl Ziemba, Detroit, for defendants-appellants.
This case concerns an attack upon Mr. Anderson, the complaining witness, by three men. The day after the attack Mr. Anderson called the police to inform them that he had seen his attackers. The police then accompanied Mr. Anderson to a poolroom where he pointed out the defendants. At trial Mr. Anderson and a police officer were permitted, over objection, to testify to the circumstances of the poolroom identification. The Court of Appeals found no reversible error. We agree.
At the conclusion of the trial, defense counsel requested special jury instructions on reliability of witness identification testimony. The trial judge did not give the exact instructions requested but gave substantially similar ones. Defense counsel, who expected not to be present during the giving of the instructions had previously made an objection if the requested instructions were not given. The Court of Appeals found no reversible error. We agree.
The trial judge failed to instruct the jury that their verdict must be unanimous. The jury was instructed on the requirement of unanimity during their orientation. The record reveals that all jurors acknowledged that they agreed on the verdict. Defense counsel neither requested an instruction on unanimity nor objected to the trial judge's failure to give it. The Court of Appeals found no reversible error. We agree.
Before the Court of Appeals defense counsel alleged a violation of defendants' right to due process and equal protection. Defendants were convicted of assault with intent to rob not armed, M.C.L.A. § 750.88; M.S.A. § 28.283 which carries a 15-year maximum sentence, and sentenced to 2 to 15 years imprisonment. Defense counsel contends attempted robbery unarmed, M.C.L.A. § 750.530; M.S.A. § 28.798 and M.C.L.A. § 750.92; M.S.A. § 28.287 is an identical offense with a 5-year maximum sentence. Therefore he alleges defendants' rights were violated because of the discretion given to the prosecutor to charge either offense when both are identical. The Court of Appeals found the statutes prohibited different offenses and therefore were not identical. We agree the statutes are not identical, but for reasons different from the Court of Appeals. Affirmed.
Dwight Sanford and Reginald Lee Gardner were charged in a one count information with the commission of the offense of assault with intent to rob being unarmed, M.C.L.A. § 750.88; M.S.A. § 28.283.
The complainant, Booker Anderson, testified that on February 26, 1974 at about 5:45 p. m. he went to the Sherman Drug Store near Owen and Oakland in the city of Detroit. When he returned to his car and was unlocking the door someone grabbed him. Two persons hit him on the side of the head and tried to throw him down. They tried to get into his pocket and said that there was money in the pocket. A third person came and grabbed him and he was dragged to an alley and the culprits kept saying there was money in the pocket. Then they broke and ran. The culprits got nothing.
At trial Mr. Anderson identified defendants Gardner and Sanford as two of the men who attacked him. Mr. Anderson testified he had one false eye and his glasses were broken in the struggle. He also testified he had never seen the defendants before that day, but he had seen them in the drug store when he walked into the drug store.
Mr. Anderson also testified on direct examination to having identified the defendants the day after the attack. Mr. Anderson saw the defendants in the same drug store and called the police. By the time the police arrived defendants were in a poolroom. The police joined Mr. Anderson at the poolroom. Mr. Anderson then pointed the defendants out to the police. The relevant portions of that testimony follow:
(Whereupon a discussion was held off the record.)
The trial judge did not permit Mr. Anderson to testify to the identification procedure used for the preliminary examination. At the preliminary examination, at the request of the defense counsel, the complainant was excused from the courtroom and the defendants were seated in the audience. The complainant then entered the courtroom and took the witness stand. He was asked to identify the men who assaulted him, and identified defendants in the audience.
A police officer, over objection, confirmed complainant's testimony concerning the identification made February 27, 1974 in the poolroom. After this testimony the parties rested.
At the close of the trial defense counsel requested, in writing, a special instruction on the reliability of witness identification testimony. The trial judge gave an instruction which was substantially similar.
The Court did not instruct the jury that their verdict had to be unanimous. Defense counsel neither requested such an instruction nor objected to the trial judge's failure to give it. The record reveals that the jury was instructed on the unanimity requirement during their orientation in the following manner:
"that all the jurors acknowledged to the trial judge that they agreed on the verdict." People v. Sanford, 65 Mich.App. 101, 106, 237 N.W.2d 201, 204 (1975).
The jury convicted the defendants of assault with intent to rob unarmed. Both defendants received prison sentences of 2 to 15 years.
The Court of Appeals affirmed defendants' convictions in People v. Sanford, 65 Mich.App. 101, 237 N.W.2d 201 (1975).
We granted leave to appeal on the issues raised in defendants' application, the four discussed above. We affirm defendants' convictions, but on issue I for reasons different from the Court of Appeals.
The defendants contend the offense defined in M.C.L.A. § 750.88; M.S.A. § 28.283, assault with intent to rob being not armed is identical to the offense of attempted robbery unarmed, defined in M.C.L.A. § 750.530; M.S.A. § 28.798 and M.C.L.A. § 750.92; M.S.A. § 28.287.
The Court of Appeals in discussing defendants' first issue stated:
65 Mich.App. 101, 103, 237 N.W.2d 201, 203.
M.C.L.A. § 750.88; M.S.A. § 28.283 provides:
"Assault with intent to rob and steal being unarmed Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years." (Emphasis added.)
M.C.L.A. § 750.530; M.S.A. § 28.798 provides:
"Robbery unarmed Any person who shall, by force and violence, or by assault or...
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