People v. Hayden, Docket Nos. 61914

• Decision Date: 16 March 1984
• Docket Number: Docket Nos. 61914,62168 and 62917
• Citation: 348 N.W.2d 672,132 Mich.App. 273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cedric HAYDEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abrom Juan HAYDEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric DICKERSON, Defendant-Appellant. 132 Mich.App. 273, 348 N.W.2d 672
• Court: Court of Appeal of Michigan — District of US

Page 672

348 N.W.2d 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cedric HAYDEN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Abrom Juan HAYDEN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric DICKERSON, Defendant-Appellant.

Docket Nos. 61914, 62168 and 62917.

132 Mich.App. 273, 348 N.W.2d 672

Court of Appeals of Michigan.

Submitted July 25, 1983.

Decided Feb. 21, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 276] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief Appellate Asst. Pros. Atty., and Kevin G. Simowski, Asst. Pros. Atty., for the People.

Arthur James Rubiner, Southfield, for defendant-appellant Cedric Hayden.

Kenneth E. Rosen, Southfield, for defendant-appellant Abrom Hayden.

[132 MICHAPP 277] James R. Neuhard, State Appellate Defender by John Nussbaumer, Detroit, for defendant-appellant Dickerson.

Before HOLBROOK, P.J., and WAHLS and LAMB ^*, JJ.

LAMB, Judge.

Each of the defendants were charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, breaking and entering an occupied dwelling with the intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Following a joint jury trial in the Detroit Recorder's Court, defendant Cedric Hayden was convicted of all charges, defendant Eric Dickerson was convicted of the armed robbery and the breaking and entering charges, and defendant Abrom Hayden was convicted only of breaking and entering.

Cedric Hayden was sentenced to serve concurrent prison terms of from 10 to 20 and 6 to 15 years respectively on the armed robbery and breaking and entering convictions. A two-year consecutive term of imprisonment was imposed for the felony-firearm conviction. Eric Dickerson was sentenced to serve concurrent terms of imprisonment of from 15 to 30 years (armed robbery) and 7 to 15 years (breaking and entering). Abrom Hayden was sentenced to serve a term of from 3 to 15 years imprisonment for his breaking and entering conviction.

All three defendants now appeal as of right. This Court, on its own motion, consolidated the three appeals in an order dated February 2, 1983.

The charges arose out of a criminal transaction occurring on March 24, 1981, at the residence of [132 MICHAPP 278] Bernard Lafferty in Detroit. Lafferty testified that he was awakened at approximately 11:45 p.m. to find Cedric Hayden, partially masked, standing over his bed. Cedric pointed a sawed-off shotgun in Lafferty's face and demanded guns, money, and jewelry. A second man, whom Lafferty could not identify, stood behind Cedric. This man was armed with a revolver. Lafferty said that he could hear other individuals rummaging through the house, and he heard one of the offenders say something like "look here Tyronne".

Lafferty's observance of the two men lasted for approximately fifteen seconds. One of the men then kicked him in the face, and Lafferty buried his head into a pillow. Before the perpetrators left the premises, they tied Lafferty's feet with an electrical cord and his hands with a belt.

After Lafferty heard the downstairs door close, he untied himself. He discovered that two television sets, a jewelry box containing $60 to $70 in coins, a "couple" of gold necklaces, and a revolver with serial number 707023 were missing. Lafferty's roommate, Bruce Allen, also reported various items missing, including a deer rifle, over $400, and jewelry.

Birk Stennis testified that he was convicted of armed robbery and possession of a firearm during the commission of a felony arising out of the Lafferty incident. Stennis was sentenced to 1 year, 1 day to 20 years imprisonment for the robbery and an additional two-year consecutive term was imposed for the felony-firearm conviction. The prosecution dismissed another case against Stennis involving a charge of breaking and entering and agreed not to bring charges against him in three other matters in which he was implicated. In exchange for this disposition of the various criminal[132 MICHAPP 279] matters in which he was involved, Stennis agreed to testify against the defendants.

Stennis alleged that he had served as a lookout while the defendants and Aaron Hayden, also known as Tyronne, broke into the Lafferty home. ¹ Stennis's description of the items which the four took from Lafferty's house corroborated Lafferty's testimony. Stennis specifically testified that defendant Dickerson returned to the car with a .38-caliber handgun he had taken from the Lafferty residence.

The remainder of the case against the defendants was "similar acts evidence". Frank Sheckell described an attempted breaking and entering which occurred at his Birmingham home on April 27, 1981, thirty-four days after the charged offense. At approximately 3:15 a.m., on April 27, Sheckell was awakened by a noisy vehicle. A few minutes later he noticed a flashlight shining on the wall outside his bedroom door. Upon investigation, Sheckell saw persons outside by a downstairs window and another person walking back and forth on his porch. Upon hearing a tap on the window, and the window being raised, Sheckell turned on a light and yelled, and the intruders fled. The following evening, Sheckell found a revolver in his yard which proved to be the handgun stolen from Lafferty's house.

At approximately 8:30 a.m. on April 27, Officer John Hepner received a radio transmission that a woman in Bloomfield Township had found three people in her car in her garage. This ultimately led to the arrest of the defendants in the area of the Sheckell home.

[132 MICHAPP 280] All three defendants admitted their involvement in the Sheckell incident. Their confessions were introduced into evidence. The trio stated that they ran away from the Sheckell house after hearing somebody scream and upon seeing a police car. Thereafter, the trio went to sleep in an automobile in a nearby garage.

Other facts will be set forth when relevant to specific issues.

I. Issues Common to All Defendants

Defendants first assert that the trial court erred in admitting into evidence the similar acts testimony concerning the aborted attempt to break into the Sheckell residence. The admissibility of this evidence was extensively argued, and the trial court ultimately held that this evidence could be considered by the jury because the revolver taken in the Lafferty incident was found in Sheckell's backyard. The court apparently did not believe that the two criminal incidents were so similar that the other acts evidence tended to establish defendants as the perpetrators of the Lafferty incident through proof of a distinctive common modus operandi, although the prosecution on appeal argues for the admissibility of the other acts evidence on this basis.

In People v. Golochowicz, 413 Mich. 298, 308, 319 N.W.2d 518 (1982), the Supreme Court held that, before similar acts evidence may be introduced, the following requirements must be satisfied:

" * * * (1) there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced; (2) there must be some special quality or circumstance of the bad act tending to prove the defendant's identity or the motive, intent, absence of mistake [132 MICHAPP 281] or accident, scheme, plan or system in doing the act and, in light of the slightly different language of MRE 404(b) we add, opportunity, preparation and knowledge; (3) one or more of these factors must be material to the determination of the defendant's guilt of the charged offense; and (4) the probative value of the evidence sought to be introduced must not be substantially outweighed by the danger of unfair prejudice." (Footnote omitted.)

In this case, defendants contend that the other bad act had no tendency to show their identities as the perpetrators of the crimes committed at the Lafferty residence. We agree that the Sheckell offense and the charged offense were not so similar that it was, in the words of the prosecution on appeal, as "if each of the defendants personally signed their names on Mr. Sheckell's front-door". ² As appellate counsel for defendant Dickerson notes:

"Five participants, including accomplice Birk Stennis, were allegedly involved in the charged offense, while only three, Defendant and Co-Defendants Cedric and Abrom Hayden, participated in the subsequent breaking and entering. The charged offense took place late in the evening on the near east side of Detroit, the subsequent incident during the early morning hours in the northwest suburb of Birmingham. The charged offense was a brazen and forceful home invasion, the Birmingham incident a surrpetitious [sic ], cat burglar type crime."

In Golochowicz, supra, p. 325, 319 N.W.2d 518, the Supreme Court made it clear that when similar acts evidence is introduced to prove identity through a distinctive modus operandi, the prosecution must show a [132 MICHAPP 282] "high degree of similarity" and that special characteristics "so uncommon, peculiar and distinctive" compel the conclusion that the defendant perpetrated the charged offense. In this case, to the extent that the charged offenses and the other acts were similar, they were not so distinctive as to compel the conclusion that the same person or persons were responsible for both criminal episodes. Indeed, the methods used to perpetrate each criminal episode strike us as singularly unexceptional and as being two common means of committing a breaking and entering. ³

We next consider whether, because a revolver stolen from the Lafferty residence was found in Sheckell's yard within hours of the aborted effort to break into the Sheckell residence, the other acts evidence was properly admitted. The parties argue this issue as if the dispositive question is whether a 34-day lapse of time between...