People v. Gardner, No. 4

• Court: Supreme Court of Michigan
• Writing for the Court: WILLIAMS; RYAN; This distinction is valid and important to an understanding of the admissibility of the police officer's testimony in the instant case. In my view; FITZGERALD; KAVANAGH, Chief Justice, and LEVIN
• Citation: 265 N.W.2d 1,402 Mich. 460
• Decision Date: 17 April 1978
• Docket Number: No. 4
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald Lee GARDNER and Dwight Sanford, Defendants-Appellants.

Page 1

265 N.W.2d 1 402 Mich. 460 The PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Reginald Lee GARDNER and Dwight Sanford, Defendants-Appellants. No. 4. Supreme Court of Michigan. April 17, 1978.

Page 2

[402 Mich. 466] 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.

WILLIAMS, Justice.

INTRODUCTION

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 [402 Mich. 467] 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.

I The Facts

Dwight Sanford and Reginald Lee Gardner were [402 Mich. 468] 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.

Page 3

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:

"Q. (By Mr. Morgan (Prosecuting Attorney) ): Okay. Now, the next day, Mr. Anderson, February 27, did you have occasion to go back to the drug store?

"A. I went back to the drug store.

[402 Mich. 469] "Mr. Ziemba (Defense Counsel) : Objection. This is entirely irrelevant, Your Honor.

"The Court : Overruled.

"Mr. Ziemba : Thank you.

"Q. (By Mr. Morgan ): Would that be in the afternoon some time?

"A. Yes. I went back to the drug store, and I saw them come in the drug store.

"Q. Who came in the drug store?

"A. Those two here.

"Mr. Ziemba : May I have a continuing line of this question? (sic ).

"The Court : Yes.

"Mr. Ziemba : Thank you.

"Q. (By Mr. Morgan ): You saw Mr. Gardner and Mr. Sanford?

"A. That's right.

"Q. Did they do anything in the drug store?

"A. They got a pack of cigarettes, I think, and walked out.

"Q. Okay. What did you do next, sir?

"A. I called a policeman.

"Q. Did some police officers come?

"A. That's right.

"Q. What did you do next?

"A. When I called the police, they circled around up and down Owen and Oakland, and then went in the poolroom.

"Q. After the police went into the billiard room, what did (18) you do, sir?

"A. I went in there, too.

"Q. What did you do next?

"A. They was standing around there looking.

"Q. Who do you mean, they?

"A. They was looking, the police, and I pointed him out and him out because them was the ones who robbed me.

"Q. You pointed Mr. Gardner and Mr. Sanford out?

"A. That's right.

[402 Mich. 470] "Q. What were they doing in the poolroom?

"A. He was playing pool.

"Q. Mr. Sanford?

"A. Yes, and he was playing checkers.

"Q. Were there any other people in the poolroom?

"A. Yes, about fifteen to sixteen people, something like that.

"Q. Mr. Anderson, did you testify at a prior hearing in this matter?

"A. I (sure) did.

"Q. At that particular time, did you have occasion to identify the defendants?

"Mr. Ziemba : I object to this. This is highly objectionable.

"The Court : Objection sustained.

"Mr. Ziemba : I ask that the answer (sic ) be stricken and the jury be instructed to disregard the answer (sic ).

"Mr. Morgan : Your Honor, may we approach the bench?

"The Court : Yes.

(Whereupon a discussion was held off the record.)

"Q. (By Mr. Morgan ): Mr. Anderson, is there any doubt in your mind that these are two of the men who attempted to rob you on February 26?

"A. That's right. That's the two right there." (8a-10a)

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 [402 Mich. 471] made February 27, 1974 in the poolroom. After this testimony the parties rested.

Page 4

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:

"Again, for 12 people or 6 people to reach a unanimous decision in a criminal trial is a difficult thing; and you have to listen to the opinions of each of your fellow jurors." (10)

The record also reveals,

"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.

[402 Mich. 472] II Comparison of Two Criminal Statutes

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:

"Defendants next contend that the crime they were convicted of, assault with intent to rob being unarmed, is the same offense as attempted unarmed robbery. They contend that since assault with intent to rob being unarmed carries only a 15-year maximum sentence, and attempted unarmed robbery carries only a 5-year maximum, it is a denial of equal protection to have two statutes, with different penalties, prohibiting the same conduct. We disagree with defendants' theory that the two statutes are aimed at prohibiting the same conduct." 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.)

...