People v. Gunter

• Decision Date: 06 July 1977
• Docket Number: Docket No. 26416
• Citation: 76 Mich.App. 483,257 N.W.2d 133
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis B. GUNTER and William T. Griffith, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 133

257 N.W.2d 133

76 Mich.App. 483

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Louis B. GUNTER and William T. Griffith, Defendants-Appellants.

Docket No. 26416.

Court of Appeals of Michigan.

July 6, 1977.

Released for Publication Sept. 1, 1977.

Edson & Thompson by Gerald Edson, Jr., Port Huron, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and J. H. GILLIS and RILEY, JJ.

V. J. BRENNAN, Presiding Judge.

Defendants Louis B. Gunter and William T. Griffith were jointly tried before a St. Clair County jury on the charge of armed robbery, contrary to M.C.L.A. § 750.529; M.S.A. § 28.797. On May 2, 1975, the jury convicted both defendants of the charged offense. On June 9, 1975, defendant Griffith was sentenced to a term of not less than 7 1/2 years nor more than 15 years. On June 16, 1975, defendant Gunter was sentenced to a similar term. Both appeal to this Court as of right under GCR 1963, 806.1.

Defendants were charged with the commission of an armed robbery which occurred at the Vega Motel in Port Huron, Michigan, on October 19, 1974. Albert Myles, the manager of the Vega Motel, testified that on the night of the alleged offense he was at the Vega Motel in the company of his daughter and her friend and two grandchildren. He stated that he heard the doorbell ring and went to the door to find a man standing just outside the door asking for a room. He later identified this man as defendant Griffith.

Myles testified that Griffith took the cash box while armed with a handgun. Shortly afterward another man entered; but, because Myles was only able to get a quick glance at the second man, he was unable to identify him. Myles testified as to various objects which were taken by the perpetrators of the offense and identified certain objects found in the defendants' car as those which were taken from him on the evening in question. Phyllis Dorland, the daughter of Myles, and Thomas Gamble, a friend of Ms. Dorland, testified in substantial corroboration of the testimony as given by Myles.

Deputy Sheriff Edward D. Lane of the St. Clair County Sheriff's Department testified that, shortly before the commission of the robbery, he received a call which indicated that there were two black males in the area acting suspiciously. In the company of his partner, Officer Lane proceeded to follow the black males to the site of the Vega Motel. After about ten minutes had elapsed, defendants were observed running from the motel and leaving at a high rate of speed. The two officers followed, and a chase ensued in which the defendants were finally caught. Certain items subsequently found missing from the Vega Motel were found in the defendants' car.

Both defendants elected to testify in their own behalf. The substance of their testimony was that neither was involved in the robbery committed at the Vega Motel. Testimony was further elicited from both defendants to the effect that they were, due to the influence of drugs or alcohol, somewhat intoxicated during the evening in question. Certain other witnesses testified on behalf of the defense.

On appeal, defendants raise all allegations of error jointly, save one claim which relates to defendant Griffith alone. We will treat the questions dealing with defendants jointly first.

Defendants initially argue the trial court abused its discretion by denying their motions for severance and separate trials of their causes.

Generally, defendants do not have a right to separate trials in this state. People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976). Further, joinder of defendants for trial normally rests within the sound discretion of the trial court. M.C.L.A. § 768.5; M.S.A. § 28.1028. People v. Smith, 73 Mich.App. 463, 252 N.W.2d 488 (1977); People v. Hurst, supra, 396 Mich. at 6, 238 N.W.2d 6. In moving for separate trials, defendants must clearly, affirmatively and fully show that substantial rights will be prejudiced by a joint trial. People v. Scott, 61 Mich.App. 91, 94, 232 N.W.2d 315 (1975). See People v. Schram, 378 Mich. 145, 156, 142 N.W.2d 662 (1966).

Both defendants' counsel in this case moved for separate trial based only on the allegations that interviews with their clients disclosed the probability of antagonistic defenses. Supporting affidavits provided no indication of what those defenses would be or what factual basis existed to believe prejudice would occur. Under similar circumstances, no abuse of discretion has been found. People v. Markham, 19 Mich.App. 616, 633, 635, 173 N.W.2d 307 (1969); People v. Kynerd, 314 Mich. 107, 112, 22 N.W.2d 90 (1946). Further, defendants' testimony at trial was not inconsistent, supporting the view that no prejudice occurred. People v. Behm, 45 Mich.App. 614, 619, 207 N.W.2d 200 (1973); People v. Schram, supra, 378 Mich. at 156, 142 N.W.2d 662. We find no abuse of discretion.

Defendants contend secondly that the trial court should have excluded all eyewitness identifications of defendants due to the contingent prejudicial effect of a pretrial lineup which was allegedly unduly suggestive and unfair.

Where the pretrial lineup is allegedly so suggestive as to taint any subsequent identification at trial, we must determine if the lineup was so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. People v. Lee, 391 Mich. 618, 626, 218 N.W.2d 655 (1974), People v. Rivera, 61 Mich.App. 427, 431, 232 N.W.2d 727 (1975). Defense counsel carries the burden of proving the lineup was impermissibly suggestive where defendant was represented by counsel at the lineup. People v. Rivera, supra, at 431, 232 N.W.2d 655, People v. Curtis, 34 Mich.App. 616, 617, 192 N.W.2d 10 (1971).

In this case, defendants claim the lineup was impermissibly suggestive because (1) they were forced to appear before the witnesses in the same clothes they were arrested in the night of the robbery and (2) with respect to defendant Griffith, all participants in the lineup, although of the same race, were darker skinned than defendant.

We have stated that wearing the same clothing as when arrested is not of itself indicative that a lineup is impermissibly suggestive. People v. Jones, 44 Mich.App. 633, 637-638, 205 N.W.2d 611 (1973). We find no error here where witnesses had 20 minutes to 1/2 hour in which to observe defendants and where there is no record evidence that identification of defendants depended substantially on the clothing they wore on the night of the robbery.

Neither do we find defendant Griffith's contention concerning the lightness of his skin persuasive. People v. Herrera, 42 Mich.App. 617, 620-623, 202 N.W.2d 515 (1972). We do not believe the lineup was impermissibly suggestive. We find no error in the trial court's subsequent rulings or actions.

Defendant next claims that the trial court abused its discretion by refusing to suppress evidence of the defendants' prior convictions.

In deciding whether to admit evidence of prior felony convictions for purposes of impeachment, the trial court must exercise and identify its discretion in doing so. People v. Trombley, 67 Mich.App. 88, 94, 240 N.W.2d 279 (1976). We find the court did adequately exercise its discretion on the record. People v. Pleasant, 69 Mich.App. 322, 328, 244 N.W.2d 464 (1976).

However, defendants argue that the court abused its discretion by admitting defendant Gunter's conviction for breaking and entering in 1966 and defendant Griffith's conviction for breaking and entering in 1967. People v. Jackson, 391 Mich. 323, 332-333, 217 N.W.2d 22 (1974).

We will not reverse a conviction simply because the prior convictions admitted by the trial court were remote in time. See Proposed Michigan Rules of Evidence, Rule 609(b) (evidence not necessarily inadmissible where, as here, neither conviction was ten years old or more at the time of the present trial). Furthermore, we have held that the trial court need not exclude prior convictions merely because they involved crimes of a similar nature to the crime charged. People v. Townsend, 60 Mich.App. 204, 206, 230 N.W.2d 378 (1975). We do not find the prior conviction in this case so remote in time as to be unfair or improper to admit. See People v. Penn, 71 Mich.App. 517, 519-521, 248 N.W.2d 602 (1976) (where the convictions had occurred some 20 years before). We must also believe from statements on the record that the court properly admitted the prior convictions primarily because of their relation to defendants' credibility. We find no abuse of discretion here. People v. Kelly, 66 Mich.App. 634, 637, 239 N.W.2d 691 (1976).

Defendant contends fourthly that the trial court erred reversibly in charging the jury on the defense of intoxication.

We recognize that the Michigan Supreme Court has found defective an instruction on the defense of intoxication which stressed the defendant's capacity to form the necessary specific intent and not whether defendant had in fact entertained the specific intent. People v. Crittle, 390 Mich. 367, 372, 212 N.W.2d 196 (1973).

However, Crittle did not prohibit giving any instruction at all in terms of defendants' capacity to form criminal intent because of intoxication. In fact, we believe such an instruction is necessary in order to inform the jury that they must determine whether the purported intoxication would prohibit a person from forming a criminal intent. However, what is also necessary to avoid improperly misleading the jury is the additional charge that, regardless of intoxication, defendant must in fact be found to have formed a specific criminal intent before conviction is justified.

In the case before us, the trial court instructed the jury regarding intoxication on three occasions. ¹ The pertinent language of the charge in question is the following:

"If you...