People v. Gray, Docket No. 23680

Decision Date04 December 1975
Docket NumberDocket No. 23680
Citation238 N.W.2d 540,66 Mich.App. 101
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Erwin GRAY, Defendant-Appellant. 66 Mich.App. 101, 238 N.W.2d 540
CourtCourt of Appeal of Michigan — District of US

[66 MICHAPP 102] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Robert W. Horn, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and J. H. GILLIS and KELLY, JJ.

D. E. HOLBROOK, Presiding Judge.

Defendant was charged with robbery while armed, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. He was found guilty by a jury, and sentenced to 15 to 25 years imprisonment. He now appeals.

Defendant's conviction resulted from testimony tending to show occurrences as set forth below.

At approximately 12:05 a.m. on September 10, 1974, two men came through the front door of Little Harry's Restaurant on East Jefferson in Detroit. One of the men carried a sawed-off shotgun. The other man was identified by several witnesses as the defendant. The man with the sawed-off shotgun announced a stickup and told [66 MICHAPP 103] everybody to get down on the floor. The people in that particular room laid down on the floor, but the piano player got up and ran. Defendant chased and caught the piano player, then told him that he didn't want to hurt him and to 'be cool'. Everyone was then taken into the kitchen where they were again made to lie on the floor while defendant relieved them of their valuables. The night manager of the restaurant pleaded with defendant not to take his wedding ring, but defendant responded by saying 'take it off or I'll blow your blank blank head off'.

Defendant then went into the bar area where he told the bartender and patrons to get into the kitchen. When they did so they were made to lie on the floor and were relieved of their valuables.

During this time a certain Mr. English was employed at Little Harry's Restaurant. On the night in question, he was in the kitchen when he heard someone come into the restaurant and announce a stickup. He ran to the second floor and jumped out one of the windows on that floor. He went across the street to a police garage and told the police what was happening. Two policemen came with Mr. English to the restaurant, and called for some more policemen. The policemen then surrounded the building.

Back inside the restaurant, after everyone had been forced to give up their valuables, the two men announced that they were leaving and ordered everyone to stay face-down on the floor for ten minutes. Defendant and the other man then ran out the front door, but the other man came back inside right away and ran upstairs.

One of the police officers from the police garage arrested defendant as he exited the restaurant. This officer testified as follows:

[66 MICHAPP 104] 'Q. (By Mr. Morgan, prosecuting attorney) Where did you first observe Mr. Gray?

'A. The top of the steps in front of the restaurant Little Harry's Restaurant.

'Q. Was he walking?

'A. No he came out the front door and was running.

'Q. What happened next?

'A. He came down the foot of the steps turned west around the west part of the building and I apprehended him there.' (Emphasis supplied.)

When apprehended the defendant said: '(D)on't shoot I did it.' A search of the defendant revealed that he was carrying a green garbage bag containing money, rings and watches.

Defendant took the stand in his own behalf. On direct examination, defendant testified as follows:

'Q. Have you ever been convicted of a crime?

'A. Yes sir when I was in the twelfth grade I was convicted of attempt unarmed robbery.

'Q. Attempt unarmed robbery?

'A. Yes sir.

'Q. That was in what year?

'A. '72 I think.'

Defendant then testified that on the evening of September 9, 1974, he was riding his bicycle down East Jefferson. At about 11 p.m., defendant testified, he stopped at Little Harry's to get a cup of coffee. He testified that he went through the front door of the building, but when he opened the second door, he saw a man with a shotgun standing inside so he 'eased back out'. Defendant testified that after he came back outside, he looked to the side and saw some money on the ground. He testified that he picked the money up and put it in both pockets. He then said that he turned around [66 MICHAPP 105] and saw a police officer, and that he told the officer: 'I'm guilty of picking this money up off the ground.' On cross-examination the prosecutor asked defendant:

'Q. Mr. Gray were you convicted in 1973 of assault with intent to rob while being armed?

'A. No sir.

'Q. No. Do you know Keith Miles?'

This was the only mention the prosecutor made of a prior conviction. He did not pursue the matter further. There was no objection to the question.

In his charge to the jury, the trial court stated:

'Now under the law in this State the defendant may take the stand or elect not to do so.

'In this case the defendant took the stand. When he takes the stand it is your duty to weigh and analyse (sic) and consider his testimony exactly the same as you do that of any other witness in the case. You will seek to determine what the true facts are from his testimony the same as any other witness.

'You will apply the same test to determine the truth or falsity and weight and credibility that you will attach to that testimony.

'You have no right to discredit his testimony merely because he is the defendant in the case but on the contrary if you find his testimony to be rational natural and consistant (sic) it may outweigh the testimony of all the other witnesses in the case and be sufficient for you to return a verdict of not guilty.

'However merely because he is the defendant in the case you are not bound to give his testimony any greater weight or credibility then you will that of any other witness.

'Now Ladies and Gentlemen as I indicated to you previously the defendant took the stand in this matter. You heard something about a previous conviction in this case of his record.

[66 MICHAPP 106] 'There has been, I want to give you what the law is on that and how you are to use that.

'There has been some testimony here regarding the defendant's previous conviction for other Offenses. That testimony is admissable (sic) to determine what weight or credibility you will attach to his total testimony. That testimony is of course in no sense proof of guilt or his participation in this particular offense as charged here; but it is admitted solely for the purpose of enabling you to determine the credibility that you will attach to his testimony or the weight that you will give it and in considering it it is not to be used to determine whether he is guilty or innocent of this particular offense which he is on trial for here today but merely for you to determine his credibility.' (Emphasis supplied).

The jury found defendant guilty as charged.

Defendant first alleges that reversible error was committed when the prosecutor suggested, in a question, that defendant had been convicted of assault with intent to rob while being armed, and when the judge, in his charge, referred to testimony of other 'offenses' committed by defendant when he had admitted to only one previous conviction. Defendant bases this claim of error on the question we have quoted above. That single question by the prosecutor was the only time during the case where he referred to any prior conviction. Defense counsel did not object when the prosecutor asked the question. There was apparently good reason for not objecting, as evidenced by the following excerpt from the sentencing transcript:

'The Court: Mr. Gray you were before the court and during the time of the trial the prosecutor asked if you had ever been convicted of a crime and you indicated that you had been convicted of what was it Mr. Murphy do you remember what it was, it was not a true statement as to what the conviction was.

[66 MICHAPP 107] 'Mr. Murphy (defense attorney): Well your Honor it was a conviction--

'The Court: Well I'm trying to make sure that the record is straight on that because he indicated that he was convicted of robbery unarmed or attempt robbery armed.

'Mr. Gray: Yes.

'The Court: You were actually convicted of assault with intent to rob while being armed and that's what the record reflects.

'Mr. Gray: I'm talking about what I copped out to.

'The Court: What did you cop out to?

'Mr. Gray: Attempt, let's see attempt armed robbery without being armed.

'The Court: No you didn't that's not what the report reflects.

'The report reflects that your prior record indicates that you pled guilty to assault with intent to rob being armed on May 16th, 1973 before the Honorable Henry Heading and that you were sentenced one to five.

'Mr. Gray: I made a mistake.

'The Court: Is that true, do you realize that that is what happened to you now?

'Mr. Gray: Yes I realize now, that you done told me I realize your honor.'

As the above quote indicates, defendant actually was convicted of assault with intent to rob being armed and not, as the defendant had earlier urged, of 'attempt unarmed robbery'. The fact that the prosecutor did not confront the defendant with the truth shows a lack of effort on the prosecutor's part to prejudice the defendant's case. This was not a case where the prosecutor implies an offense or over-emphasizes a conviction that he does not prove. However, since defense counsel failed to object at trial, our review is limited to ascertaining whether...

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4 cases
  • People v. Wesley
    • United States
    • Michigan Supreme Court
    • August 25, 1987
    ...that had the defendant affirmatively admitted guilt, his sentence would not have been so severe. See, e.g., People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975); People v. Grable, 57 Mich.App. 184, 225 N.W.2d 724 (1974); People v. Fleming, 142 Mich.App. 119, 127, 369 N.W.2d 499 (1985). U......
  • People v. Yennior, Docket No. 26115
    • United States
    • Court of Appeal of Michigan — District of US
    • October 20, 1976
    ...little analysis and cites no authority on what constitutes improper sentencing considerations. In the recent case of People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975), defendant, as does defendant in the case now before us, relied on Grable in asserting that he was improperly sentence......
  • People v. Fleming
    • United States
    • Court of Appeal of Michigan — District of US
    • June 19, 1985
    ...clearly erroneous nor improper for the trial court to consider the defendants' lack of remorse in imposing sentence. People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975). We do not believe that the trial court's statement concerning his belief that defendants were not remorseful for the ......
  • People v. Miller
    • United States
    • Court of Appeal of Michigan — District of US
    • October 20, 1989
    ...for trial by jury); People v. Hogan, 105 Mich.App. 473, 307 N.W.2d 72 (1981) (defendant's refusal to plead guilty); People v. Gray, 66 Mich.App. 101, 238 N.W.2d 540 (1975) (defendant's maintaining his innocence); People v. Anderson, 391 Mich. 419, 216 N.W.2d 780 (1974) (defendant's declinin......

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