People v. Holmes
| Decision Date | 04 May 1984 |
| Docket Number | Docket No. 60883 |
| Citation | 132 Mich.App. 730,349 N.W.2d 230 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Wellington HOLMES, Defendant-Appellant. 132 Mich.App. 730, 349 N.W.2d 230 |
| Court | Court of Appeal of Michigan — District of US |
[132 MICHAPP 733] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Robert F. Davisson, Asst. Pros. Atty., for the People.
Keller & Avadenka, P.C. by Frances R. Avadenka, Bloomfield Hills, for defendant-appellant.
Before KELLY, P.J., and SHEPHERD and COOPER, * JJ.
Defendant was convicted of two counts of armed robbery, M.C.L. Sec. 750.529, M.S.A. Sec. 28.797, one count of felony-firearm, M.C.L. Sec. [132 MICHAPP 734] 750.227b, M.S.A. Sec. 28.424(2), and one count of assault with intent to commit murder, M.C.L. Sec. 750.83, M.S.A. Sec. 28.278, by a jury on July 2, 1981. Trial had commenced on June 18, 1981. Defendant was sentenced to 13 to 30 years imprisonment on the robbery and assault charges to run concurrently, and 2 years on the felony-firearm charge.
Witness Steven Arthur Hammerstrom testified that he and his date, Teresa Zeitz stopped at a gas station shortly after midnight on Thanksgiving night, November 28, 1980, after leaving a local bar where he had three or four beers. After entering the gas station's restroom, he heard someone else enter and turned to see a small caliber revolver pointed at his chest. The intruder told him to empty his pockets and face the wall. Witness Hammerstrom took brief looks at the intruder over the course of approximately 30 seconds. According to Mr. Hammerstrom, while emptying his pockets which included approximately $100, he was facing the intruder. As the intruder left, he told Mr. Hammerstrom not to leave for 15 minutes or he would be blown away. However, Mr. Hammerstrom heard a car horn beeping and looked out of the bathroom door to see the same man leaning into the open driver's door of his girlfriend's car and hitting Ms. Zeitz with a pistol. Mr. Hammerstrom yelled at the assailant and the assailant fired two gunshots at Mr. Hammerstrom. Ms. Zeitz continued to struggle with the assailant by hanging onto her purse. However, she released the purse when the assailant again pointed the gun at Mr. Hammerstrom and fired a third shot. After obtaining the purse, the assailant ran behind the gas station and Mr. Hammerstrom ran around the front of the station in pursuit. The assailant fired a fourth shot at Mr. Hammerstrom before jumping [132 MICHAPP 735] into a waiting car driven by an unidentified person. Mr. Hammerstrom, who is color blind, described the assailant as a black male, medium complected, with a heavy build, approximately 5'10"' or 5'11"' in height, 20 to 25 years old, heavier than 160 pounds with no mustache. Approximately one month after the incident, Mr. Hammerstrom viewed a lineup but did not make a positive identification of the defendant as the assailant. However, he did state that the defendant "looked like" his assailant. At the trial, Mr. Hammerstrom was unable to identify the defendant as the assailant.
Witness Teresa Zeitz testified that the lighting at the gas station was very bright. She observed a man pass within four to six feet of her with his face turned towards her. The man went into the same rest room that Mr. Hammerstrom had entered and closed the door. About a minute later the man came out of the rest room, approached her car, and opened the car door. He put a gun to her side and said, "give me your purse". Witness Zeitz tried to pull her purse away and honked the car horn. The assailant hit her over the head with the gun approximately three times. At that point, Mr. Hammerstrom came out of the men's room and yelled at the assailant. After the assailant shot at Mr. Hammerstrom, he fled with Mr. Hammerstrom in pursuit. Ms. Zeitz ran to the gas station window to ask the woman attendant to call the police. At the trial, witness Zeitz identified defendant Michael Holmes as her assailant. Ms. Zeitz also testified that she and Mr. Hammerstrom had been at a local bar for three or four hours and that she had consumed three or four beers. She testified that the area over the gas pumps was well lit with fluorescent lights, but that the side of the [132 MICHAPP 736] building where the rest rooms were located was somewhat darker, although there was lighting under the roof overhang. Ms. Zeitz attended the lineup which contained five suspects and, after approximately two minutes, identified defendant Holmes as the assailant. Her trial testimony showed that she observed the defendant to be the heaviest person in the lineup and also the tallest person, with one exception. When asked by the defense attorney whether the defendant "stuck out like a sore thumb", she replied, "to me he did".
Witness Audrey Nance was the cashier at the gas station on the night of the incident. She testified that she looked out of the window when she heard a car horn blow. She observed a heavy-set black male, wearing a dark jacket and dark ski cap and standing by the open door of the Zeitz car. She was about 20 to 23 feet away and testified at the trial "as God is my witness, that is the man", when asked to identify the defendant at the trial. However, at the lineup she did not make a positive identification for the reason that she thought the defendant's nose was a little bit wider than it showed in a composite drawing and that, at the time of the incident, she was quite a distance away and the light was not very bright. However, at trial, she stated that, if she had seen the assailant again on the night of the incident, she could have identified him.
Detective Ronald Morgan testified that Mr. Hammerstrom and Ms. Zeitz had done separate composites. The defendant was arrested on December 12, 1980, approximately one week after Detective Morgan received the composites and the lineup was held on December 30, 1980, over one month after the incident. Initially, Detective Morgan testified that the lineup was not one of the [132 MICHAPP 737] best lineups he had ever conducted. However, he later testified on redirect examination that it was a very good lineup. Witness Morgan testified that the goal of a lineup is to get everyone to look as much alike as possible. On cross-examination, he testified that the inclusion of one of the five persons in the lineup was improper due to the disparity in size between that person and the defendant. Also he testified that the remaining three suspects were too small to be in the lineup with the defendant. During the lineup, the defendant's first attorney objected to the lineup and departed, although the record is not clear as to his specific reason for departing. A second attorney, who did not object to the lineup, was provided. At the trial, the court denied defendant's motion to dismiss defendant's pretrial lineup and subsequent in-court identification. The trial court also denied both of defendant's motions to suppress evidence of his prior armed robbery conviction. During deliberation, the jury informed the court that it could not agree on a verdict. The jury had been deliberating part of the morning and most of the afternoon. The court encouraged the jury to try again, and within a few minutes after resuming deliberation, the jury returned with a unanimous verdict of guilty.
The defendant did not testify and gave his reason, out of the presence of the jury, as being the trial court's failure to suppress evidence of his prior conviction. The defendant's defense was that of alibi. Defendant's mother, Joan Holmes, testified that her son had accompanied her to defendant's great-grandmother's home for Thanksgiving dinner. She testified that she paid the defendant to wear a beige shirt, beige corduroy pants, black shoes and a new beige coat which she had just [132 MICHAPP 738] purchased. Evidently the defendant was reluctant to go, and his mother, in her desire to have him attend, offered him money to attend the Thanksgiving dinner. Witness Holmes testified that her son left the Thanksgiving dinner at approximately 11:05 p.m. and returned home at 2:30 a.m. wearing the same clothes that she had provided him. Witness Kim McNeal, defendant's cousin, testified that she and defendant had left the Thanksgiving dinner at 11:10 p.m. She stated that she dropped the defendant off at the home of a female friend who lived approximately a 15 minute drive away and that she did not see the defendant after that time. She also testified that the defendant was wearing beige pants, a beige overcoat and black dress shoes. She testified that she remembered what the defendant was wearing because it was unusual for the defendant to be dressed up. Diane Blander, the female friend, testified that she had been at the Thanksgiving dinner and that the defendant was wearing beige pants and a beige coat. She testified that the defendant stayed at her home until about 2 a.m. Ms. Blander, on cross-examination, testified that she had had three criminal convictions within the previous ten years. Ms. Blander's daughter and son, 15 and 12 years old testified that the defendant wore beige clothing, and according to the daughter, he had been at the Blander home until 2 a.m. The son testified that he fell asleep and did not know when the defendant left. Finally, defendant's sister, Michele Denise Holmes testified that the defendant wore beige corduroy pants and a beige jacket, that he left the Thanksgiving dinner at approximately 11 p.m. and returned home at approximately 2:30 a.m.
On appeal, defendant argues that the trial court abused its discretion in failing to exclude evidence [132 MICHAPP 739] of his prior conviction and that the court committed reversible error by failing to articulate, on the record the factors the court considered in making its determination....
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