People v. Holmes

• Decision Date: 01 July 1980
• Docket Number: Docket No. 78-819
• Citation: 98 Mich.App. 369,295 N.W.2d 887
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Charles HOLMES, Defendant-Appellant. 98 Mich.App. 369, 295 N.W.2d 887
• Court: Court of Appeal of Michigan — District of US

Page 887

295 N.W.2d 887

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Charles HOLMES, Defendant-Appellant.

Docket No. 78-819.

98 Mich.App. 369, 295 N.W.2d 887

Court of Appeals of Michigan.

July 1, 1980.

Rehearing Denied Aug. 25, 1980.

Released for Publication Sept. 24, 1980.

[98 MICHAPP 371] James R. Neuhard, State Appellate Defender, Kim R. Fawcett, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Howard B. Gave, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and WALSH and BEASLEY, JJ.

KELLY, Presiding Judge.

Defendant appeals as of right from his jury conviction of larceny in a building, contrary to M.C.L. § 750.360; M.S.A. § 28.592. Subsequently defendant pled guilty to a habitual offender charge of being a third felony offender. M.C.L. § 769.11; M.S.A. § 28.1083. Defendant was sentenced to a term of four to eight years imprisonment.

Defendant contends that the prosecutor abused his discretion in charging him with the felony offense of larceny in a building rather than simple larceny for his alleged shoplifting of five pairs of $13 slacks from J. C. Penney Company. In advancing this argument defendant relies heavily on People v. Carmichael, 86 Mich.App. 418, 272 N.W.2d 667 (1978), which deviates from a long line of cases holding the larceny in a building statute applicable to shoplifting offenses even where the property stolen is worth less than $100. E. g., People v. Jackson, 29 Mich.App. 654, 185 N.W.2d 608 (1971); People v. Shepherd, 63 Mich.App. 316, 234 N.W.2d 502 (1975) and cases cited therein. Carmichael is factually distinguishable from the present case in two important respects: defendant therein was apparently coerced into entering a plea of guilty and suffered from acute alcoholism and mental problems.

[98 MICHAPP 372] The circumstances of the instant case closely parallel those of People v. Evans, 94 Mich.App. 4, 287 N.W.2d 608 (1979), in which another panel of this Court held that prosecution for the greater offense is permissible as a general rule and is particularly appropriate when, as here, the defendant is a prior felony offender. Accordingly, we find the prosecutor properly exercised his charging discretion.

Defendant further claims that the prosecutor's ability to exercise discretion in charging violates constitutional guarantees of due process and equal protection. This argument has previously been considered and rejected by this Court. Jackson, supra ; People v. Graves, 31 Mich.App. 635, 188 N.W.2d 87 (1971); Evans, supra. The larceny and larceny in a building statutes do not purport to allow two different punishments for the same crime; rather, the distinguishing factor is that the larceny in a building statute requires proof that the larceny was committed in a building. As was stated in People v. Jackson, supra, 29 Mich.App. 656, 185 N.W.2d 609, "(i)t is clearly within the discretion of the legislature to distinguish simple larceny and larceny in a building as separate social evils". Moreover, according to the United States Supreme Court's recent decision in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), as long as the two larceny statutes give sufficient notice of their differing penalties and are not used to discriminate against classes of defendants, they are not constitutionally infirm. Although defendant in the instant case alleges that he was prosecuted under the larceny in a building statute as a result of his race, the record is absolutely devoid of evidence on this matter since defendant did not establish a record in the trial court at a hearing on a motion [98 MICHAPP 373] for a new trial. In summary, the statutory scheme is constitutional and defendant has failed to show that he was the victim of arbitrary racial discrimination by the prosecutor.

The next three issues raised by defendant concern the permissible application and constitutionality of the habitual offender statute, M.C.L. § 769.10 et seq.; M.S.A. § 28.1082 et seq., which provides in part:

"Sec. 10. (1) If a person has been convicted of a felony, an attempt to commit a felony, or both, whether the conviction occurred in this state or would have been for a felony in this state if the conviction obtained outside this state had been obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction as follows:

(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, then the court, except as otherwise provided in this section or in section 1 of chapter 11, may place the person on probation or sentence the person to imprisonment for a maximum term which is not more than 11/2 times the longest term prescribed for a first conviction of that offense or for a lesser term.

(b) If the subsequent felony is punishable upon a first conviction by imprisonment for life, then the court, except as otherwise provided in this section or in section 1 of chapter 11, may place the person on probation or sentence the person to imprisonment for life or for a lesser term."

Contrary to defendant's position that the Legislature did not intend the act to apply in those instances where defendant could have been convicted of a misdemeanor rather than a felony, the statutory language clearly reflects legislative intent that a defendant's third felony conviction trigger application of the statute regardless of [98 MICHAPP 374] alternate charging choices on that conviction. Defendant herein, convicted of two prior felonies in addition to his conviction of the present felony charge of larceny in a building, was properly sentenced under the habitual offender statute.

Defendant's constitutional attacks upon the habitual offender statute are likewise without merit. Identical Fifth, Eighth and Fourteenth Amendment claims were rejected in People v. Shepherd, supra; People v. Bohm, 49 Mich.App. 244, 251, 212 N.W.2d 61 (1973); People v. Hendrick, 52 Mich.App. 201, 208, 217 N.W.2d 112 (1974), aff'd 398 Mich. 410, 247 N.W.2d 840 (1976); In re Pardee, 327 Mich. 13, 18, 41 N.W.2d 466 (1950); People v. Shastal, 26 Mich.App. 347, 351, 182 N.W.2d 638 (1970); People v. McGilmer, 96 Mich.App. ---, 292 N.W.2d 700 (1980).

It is also submitted that defendant was denied a fair trial by the trial judge's direct communication with two jurors requesting a reading of certain portions of trial testimony and supplemental instructions on the law of aiding and abetting. Defendant reasons that through this communicative process two dissenting jurors were inadvertently singled out and coerced into voting guilty. The following conversations between the court and jurors form the basis of defendant's claim:

"The Court : * * * Can you be specific; tell me exactly whose testimony and what portion you want? Anyone may speak.

"The foreman, if you like Mr. Honsinger?

"Juror No. 1: Well, we wanted to be sure that the security guard actually saw Mr. Holmes touch the material, the pants.

"The Court : You see the problem?

"Juror No. 1: I understand the problem, sir.

"The Court : We'd have to read the testimony, the cross examination, the whole thing, in order to find out whether that was in that.

"Juror No. 1: This was a request from two of the jurors.

"The Court : I can ask the reporter, but it will take some time. I would say that you should return to the [98 MICHAPP 375] jury room and continue with your deliberations. I'll ask the reporter if she can perhaps locate it. It would be probably on both the direct and on the cross examination.

"Do you know which witness you have in mind?

"Juror No. 1: Well, both of the security guards, that's the problem.

"The Court : It covers all the testimony in the case.

"Juror No. 1: I understand that.

"The Court : Is there anyone else that has any comment?

"Juror No. 1: Let's go back and try again.

"The Court : It's a difficult matter to handle, but if you will go back and continue with your deliberation, the Court will confer with the reporter and see and with the attorneys and see if we can find it. We will, if it's absolutely necessary. We'll make every effort.

"Juror No. 1: We'll go back.

"The Court : But I can't tell you right now we have it. We don't have it right now.

"(Jury left the Courtroom.)"

Later the jury returned to the courtroom and requested further instructions on the law of aiding and abetting, specifically whether defendant could have aided and abetted if he did not touch or adjust the slacks. In response, the court reinstructed the jury on the law of aiding and abetting, and then asked if anyone had any further questions. At that point, another juror came forward and the following conversation occurred:

"The Court : * * * Now that is the law on the subject of aiding and abetting. The Court would like to ask whether you have any other questions; any of the jurors who do may speak or the foreman may speak.

"Mrs. Nickleberry?

"Juror No. 13: When you say aiding, would this person have to touch well, I am saying in this particular[98 MICHAPP 376] case, would the defendant have to touch the article that was stolen?

"The Court : It would depend, you see, upon the circumstances in the case. The statute says aid or assist or encourage, depending upon what you find actually occurred.

"The statute again says whether he directly commits the act constituting the offense or procures, counsels, aids or abets in its commission. A defendant must have performed acts of giving encouragement which aid or assist the commission of the crime, either before or at the time of commission of the crime. The defendant must have intended the commission of the crime at the time of giving the encouragement.

"Now the Court will say there are a number of words used there which I think are used in the ordinary human conversations...