People v. Grihm

Decision Date04 April 1986
Docket NumberDocket No. 83090
Citation383 N.W.2d 631,148 Mich.App. 285
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Norman GRIHM, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Brian Marzec, Asst. Pros. Atty., for People.

Parzen & Parzen by George C. Parzen, Detroit, for defendant-appellee on appeal.

Before SHEPHERD, P.J., and J.H. GILLIS and CLULO *, JJ.

PER CURIAM.

The defendant was charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. At the end of the preliminary examination the magistrate bound the defendant over to Detroit Recorder's Court on the reduced charge of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. The prosecution made a motion for reinstatement of the original charge of armed robbery. After a hearing on that motion, the court upheld the decision of the magistrate and found that the magistrate had not abused his discretion in reducing the charge to unarmed robbery. Leave to appeal and a stay of proceedings were granted by this Court on March 11, 1985.

The issue in this case arises out of the specific language of Michigan's armed robbery statute which provides as follows:

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison." M.C.L. Sec. 750.529; M.S.A. Sec. 28.797.

At the preliminary examination the complaining witness testified that the defendant had approached her and demanded her purse. His right hand was underneath his cut-off shirt, and he moved it in such a way that she noticed it. She further testified that she believed that the defendant had a gun or a knife. Both lower courts ruled that a concealed hand held in such a manner as to resemble a weapon does not satisfy the "armed" element and that the only way the element can be satisfied is with the use of some "article".

The prosecutor argues that both the magistrate and the trial judge have misconstrued the rule of People v. Parker, 417 Mich. 556, 339 N.W.2d 455 (1983), and its application to the facts of this case. Both the magistrate and the trial court held that the Parker decision stands for the proposition that armed robbery cannot be made out unless some "article" is in fact used by the robber in such fashion or manner as to induce the reasonable belief that the article is a dangerous weapon. We agree with the position of the prosecutor that the magistrate and the trial court have misread the rule of Parker. In Parker, the complainant was assaulted as she was getting out of a car in a Detroit parking lot. Her assailant told her that he would stab her with a knife if she did not keep quiet. That is the only evidence in the Parker record that would suggest any weapon. In addressing these facts, the Supreme Court stated, p. 565, 339 N.W.2d 455:

"It is not enough that the person assaulted is put in fear; a person who is subjected to an unarmed robbery may be put in fear.

"To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon--a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.

"Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words."

In People v. Tullie, 141 Mich.App. 156, 366 N.W.2d 224 (1985), the complainant testified that the assailant "held his hand in his pocket indicating he had a gun". The Court in Tullie stated, p. 157, 366 N.W.2d 224:

"A defendant may be convicted for armed robbery even if the weapon was not actually seen by the complainant. People v Hayden, 132 MichApp 273, 293; 348 NW2d 672 (1984); People v McCadney, 111 MichApp 545; 315 NW2d 175 (1981); People v Krist, 93 MichApp 425; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980). This case is unlike People v Parker, 417 Mich 556; 339 NW2d 455 (1983), cert den 466 US 962; 104 SCt 2180; 80 LEd2d 561 (1984), where no evidence of the presence of a weapon was adduced at trial."

Also, in People v. Burden, 141 MichApp 160, 366 N.W.2d 23 (1985), the complainant testified that the defendant had "held his hand in his pocket in such a way that it was believed that he had a gun". The Court went on to state, p. 165, 366 N.W.2d 23:

"A number of cases have held that a concealed hand, held in such a manner as to resemble a pistol, may satisfy the 'armed' element of armed robbery. People v Jury, 3 MichApp 427; 142 NW2d 910 (1966); People v Washington, 4 MichApp 453, 455-456; 145 NW2d 292 (1966), lv den 379 Mich 783 (1967). Defendant claims, however, that People v Saenz, 411 Mich 454; 307 NW2d 675 (1981), and People v Parker, 417 Mich 556; 339 NW2d 455 (1983), cert den 466 US 962; 104 SCt 2180; 80 LEd2d 561 (1984), preclude conviction based on a reasonable belief that defendant was armed. In both of those cases there was no evidence that the victims saw a weapon or another item fashioned to simulate a weapon. The Court ruled that it was error to instruct the jury that it could convict merely on the victims' reasonable belief that the defendant was armed. Parker, supra, and Saenz, supra, require more than a belief that the defendant was armed in order to convict."

It is well established that a reviewing court may not properly substitute its judgment for that of the magistrate, but may reverse only if it appears on the record...

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8 cases
  • People v. Glover
    • United States
    • Court of Appeal of Michigan — District of US
    • December 29, 1986
    ...Court." The standard for review of a magistrate's judgment in binding a case over for trial is set forth in People v. Grihm, 148 Mich.App. 285, 289-290, 383 N.W.2d 631 (1986): "It is well established that a reviewing court may not properly substitute its judgement for that of the magistrate......
  • People v. Siler
    • United States
    • Court of Appeal of Michigan — District of US
    • October 12, 1988
    ...that a crime has been committed and there is probable cause to believe that the defendant committed it. People v. Grihm, 148 Mich.App. 285, 289-290, 383 N.W.2d 631 (1986). It is well established that a reviewing court may not properly substitute its judgment for that of the magistrate, but ......
  • People v. Stafford, Docket No. 91298
    • United States
    • Court of Appeal of Michigan — District of US
    • June 8, 1988
    ...determine whether there was an abuse of discretion and will not substitute its judgment for that of the magistrate. People v. Grihm, 148 Mich.App. 285, 383 N.W.2d 631 (1986); People v. Talley, 410 Mich. 378, 301 N.W.2d 809 An act of discretion by the magistrate, by its very definition, is a......
  • People v. McKenzie
    • United States
    • Michigan Supreme Court
    • January 8, 1992
    ...acted to create a reasonable fear in the victim to believe that the defendant is armed with a dangerous weapon. In People v. Grihm, 148 Mich.App. 285, 383 N.W.2d 631 (1986), the defendant moved his concealed hand so that the victim noticed it and believed it to be a weapon. In People v. Tul......
  • Request a trial to view additional results

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