People v. Harris

• Decision Date: 21 October 1981
• Docket Number: Docket Nos. 52615,53103 and 53133
• Citation: 110 Mich.App. 636,313 N.W.2d 354
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd J. HARRIS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron Lee RAGLAND, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe GIVENS, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 354

313 N.W.2d 354

110 Mich.App. 636

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd J. HARRIS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aaron Lee RAGLAND, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joe GIVENS, Jr., Defendant-Appellant.

Docket Nos. 52615, 53103 and 53133.

Court of Appeals of Michigan.

Oct. 21, 1981.

Released for Publication Dec. 22, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Dolores M. Coulter, Flint, for defendant-appellant Harris on appeal.

Bruce St. John, Flint, for defendant-appellant Ragland on appeal.

Habeeb Ghattas, Flint, for defendant-appellant Givens on appeal.

Before J. H. GILLIS, P. J., and T. M. BURNS and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendants were each convicted by a jury of assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284. In addition, defendant Givens was convicted of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279. For the assault with intent to rob while armed convictions defendants were each sentenced to prison terms of 30 to 50 years. Defendant Givens was sentenced to a concurrent term of 61/2 to 10 years for his additional conviction. Defendants' convictions arise out of the June 22, 1979, robbery of the Citizen's Bank in Flint, in which five individuals, Ragland, Givens, Harris, Frank Moore and Herbert Hoey were implicated. All five were tried together. Ragland, Givens and Harris now appeal as of right.

At around noon on the day of the robbery, Norman Day, a Flint police officer moonlighting as a security guard at the bank, observed four men enter the bank. Two of them, Hoey and Givens, carried sawed-off shotguns, and Day yelled for the customers to drop to the ground. Hoey fired a shot into the ceiling and then leveled his shotgun at Day. Day fired three shots at Hoey when Givens shot at Day, sending fragments into his face. Day returned the fire, wounding Givens. As Givens fell to the floor a third man vaulted from behind a teller's cage and ran out the front door. A palmprint identified as that of Ragland was found on the counter of that teller's cage. Day also observed a fourth man run towards a teller's cage located farthest from the door. Day secured the scene until the police arrived. At approximately 2:25 p. m., Flint Police Sergeant David King discovered Harris crouched down in the last teller's booth, where King also found a hat, ski mask and glove. Harris was questioned by FBI agent James Yeager. He explained to Yeager that he jumped over the counter to avoid the shooting and then fell asleep. The fifth individual, Frank Moore, allegedly was driving a getaway car.

Defendants first argue that the trial court erred in denying their motions for directed verdicts at the close of the prosecution's proofs. The proper standard for ruling on a motion for directed verdict was enunciated by the Supreme Court in People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979). A court is to consider the evidence presented up to the time of the motion, viewed in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id., 368, 285 N.W.2d 284.

A conviction of assault with intent to rob while armed requires proof of an assault and an attempt to rob, while being armed. People v. Patskan, 387 Mich. 701, 714, 199 N.W.2d 458 (1972). The offense also requires proof of specific intent, which may be inferred from the surrounding facts. People v. Barnes, 30 Mich.App. 586, 589, 186 N.W.2d 790 (1971).

In the instant case, the evidence indicated that Hoey, Ragland, Givens and Harris entered the bank together and that Hoey and Givens were armed with sawed-off shotguns. Hoey shot into the ceiling and then leveled his gun at Norman Day. Givens fired his weapon in Day's direction. Day testified that he tried to fall backwards just as Givens was advancing toward him in preparation to fire, and that he was only struck by fragments. The testimony and evidence also indicated that Ragland and Harris each went behind the teller's counter, with Harris remaining until well after the incident.

The circumstances demonstrate that two separate assaults took place, the first when Hoey leveled his shotgun at Day and the second when Givens shot at the officer. Moreover, it is evident that these assaults were perpetrated in an attempt to rob the bank and with the specific intent to advance that robbery.

Defendants claim that the crime was incomplete since Ragland and Harris did not personally intend to assault Day and Givens did not personally intend to rob the bank. Givens' claim is not supported by the facts. A trier of fact could reasonably infer that Givens was in the bank with the weapon to perpetrate the robbery. With respect to Ragland and Harris, the argument ignores the fact that they could be found liable for the assaults of Hoey and Givens as aiders and abettors. As stated in People v. Wirth, 87 Mich.App. 41, 46-47, 273 N.W.2d 104 (1978):

"To be held criminally liable for a specific intent crime as an aider or abettor, a defendant must have had either the requisite specific intent or known that the actual perpetrator had the required intent. People v. Frederick Lester, 78 Mich.App. 21, 259 N.W.2d 370 (1977); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969). Intent is a question of fact to be inferred from the circumstances by the trier of fact. People v Spry, 74 Mich.App. 584, 254 N.W.2d 782 (1977); People v. Sharp, 57 Mich.App. 624, 226 N.W.2d 590 (1975). It is likewise a factual issue whether a particular act or crime committed was fairly within the intended scope of the common criminal enterprise. People v. Haack, 396 Mich. 367, 240 N.W.2d 704 (1976); People v. McGuire, 39 Mich.App. 308, 197 N.W.2d 469 (1972); People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1969); People v. Poplar, supra."

From the evidence adduced at trial, the jury could have concluded that all of the defendants had entered into a common enterprise to commit the bank robbery and that each participant was assigned a specific role in the crime. Givens and Hoey carried their weapons openly, allowing the inference that all of the defendants knew that these two intended to commit any assault necessary to ensure the success of the endeavor. Thus, a rational trier of fact could have found defendants Ragland and Harris guilty on an aiding and abetting theory.

Defendants also contend that the prosecution had to show that they intended to rob Day, the assaulted party, and not another individual or the bank. We disagree. The statute in question does not specify that "the intent to rob" be directed at the person assaulted. A more reasonable interpretation would be that the assault be committed as a means to further the intended robbery, be it of the assaulted person or another. This Court has previously noted that the offense of armed robbery may be perpetrated even though the victim possessing the stolen property is not the actual owner, provided that the victim has a claim of right superior to that of the robber. People v. Needham, 8 Mich.App. 679, 683-684, 155 N.W.2d 267 (1967). The instant situation is an analogous one. Although Norman Day was neither the owner nor possessor of the funds intended to be taken, his presence and determination to prevent the robbery stood as an obstacle to its successful completion. The assaults were not gratuitous or committed on whim but rather to perpetrate the robbery. We interpret such an assault to fall within the statutory language.

Finally, we find without merit defendant Harris' contention that there was insufficient evidence to connect him with the crime. Norman Day testified that one of the perpetrators ran to a far teller's cage, the same location where Harris was found crouching nearly two and one-half hours later. There was testimony that the scene was noisy during the intervening period, casting doubt on Harris' claim that he slept after the robbery. Finally, photographs taken during the incident show Harris standing in the teller's booth looking toward the bank exit, contrary to his contention that he jumped over the counter and hid. The jury could have concluded that Harris' claim of innocence was a fabrication and that all three of these defendants were guilty beyond a reasonable doubt of assault with intent to rob while armed.

With regard to the charge against Givens of assault with intent to commit murder, the prosecution was required to prove an assault with specific intent to murder, which if successful would have made the killing murder. People v. Eisenberg, 72 Mich.App. 106, 114, 249 N.W.2d 313 (1976). Here, Norman Day's testimony indicated that Givens approached him, pointed a shotgun at his face and discharged the weapon. Day testified that he tried to fall backwards just prior to the shot. The jury could have inferred that it was only that motion that prevented his death. The circumstances, in particular, the use of the shotgun, indicate that Givens intended to murder Day. Although the jury chose to convict Givens of a lesser offense, a rational trier of fact could have found all of the elements of assault with intent to commit murder proven beyond a reasonable doubt.

Defendants next argue that they were denied the right to a speedy trial. While Givens and Harris were arrested on the day of the offense and Ragland within two weeks afterwards, trial did not commence until March 25, 1980, approximately nine months after the crime. Ragland and Harris remained incarcerated in the county jail pending trial. Givens was likewise held until August 16, 1979, when he was sentenced in Oakland...