People v. Jolly

• Decision Date: 03 March 1992
• Docket Number: 111196,Docket Nos. 111171
• Citation: 483 N.W.2d 679,193 Mich.App. 192
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Michael JOLLY, Defendant-Appellant. 193 Mich.App. 192, 483 N.W.2d 679
• Court: Court of Appeal of Michigan — District of US

Page 679

483 N.W.2d 679

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Michael JOLLY, Defendant-Appellant.

Docket Nos. 111171, 111196.

193 Mich.App. 192, 483 N.W.2d 679

Court of Appeals of Michigan.

Submitted June 4, 1991, at Lansing.

Decided March 3, 1992, at 9:00 a.m.

Released for Publication May 19, 1992.

[193 MICHAPP 193] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Gladys L. Christopherson, Asst. Pros. Atty., for the People.

State Appellate Defender by Ralph C. Simpson and Laura K. Vickers, Detroit, for defendant-appellant on appeal.

[193 MICHAPP 194] Before CAVANAGH, P.J., and HOLBROOK and CYNAR, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of unarmed robbery, M.C.L. 750.530; M.S.A. 28.798. Defendant then pleaded guilty to a supplemental charge of being a second-conviction habitual offender, M.C.L. 769.10; M.S.A. 28.1082, and probation violation. He was sentenced to 9 to 22-1/2 years' imprisonment for the habitual offender conviction and to a concurrent term of 6-1/3 to 10 years' imprisonment for violating probation. Defendant appeals as of right. We reverse.

I

Jennifer Herzog, testifying as a prosecution witness, stated that she and defendant, her former boyfriend, decided to rob someone in order to buy drugs. She and defendant entered an Arby's restaurant and ordered some food. Herzog then placed a bag on the counter and told the employee to put money in it or defendant would shoot him. The cashier did not see defendant with a gun, but testified that there was a bulge under the vest defendant was wearing. The cashier put the money in the sack, and Herzog and defendant left the store with it.

II

Defendant first contends that he was denied a fair trial by the prosecution's use of a prior consistent statement to bolster a witness' credibility. Defendant claims that this alleged error was exacerbated by the prosecutor's testimonial statement [193 MICHAPP 195] to the jury during opening statements. Defendant further maintains that this alleged error must have prejudiced his defense, in light of the fact that the jury submitted a note to the court asking how the investigating officer knew to go to the witness' house. The prosecution argues that defendant received a fair trial, particularly in light of the fact that he failed to object to the alleged error. The prosecution contends that a prior consistent statement was not used during trial. We agree with the prosecution.

As a general rule, neither a prosecutor nor anyone else is permitted to bolster a witness' testimony by referring to prior consistent statements of that witness. People v. Rosales, 160 Mich.App. 304, 308, 408 N.W.2d 140 (1987). While there are exceptions to this rule, such as to rebut a charge of recent fabrication, the exceptions apply only if the earlier consistent statement was given at a time before the existence of any fact that would motivate bias, interest, or corruption on the part of the witness. People v. Lewis, 160 Mich.App. 20, 29, 408 N.W.2d 94 (1987). Because defendant raises this issue for the first time on appeal, we decline to review it absent a showing of manifest injustice. People v. Federico, 146 Mich.App. 776, 791, 381 N.W.2d 819 (1985).

During his opening statement at trial, the prosecutor stated that the witness was going to testify that he told the investigating officer that he remembered the night of the robbery because Herzog and defendant entered his home and began counting the money. The witness then testified during trial to that effect and that he figured that defendant was involved in the robbery. The witness did not state the contents of his conversation with the investigating officer, but merely stated that as a result of the interview, he believed that defendant [193 MICHAPP 196] was involved in the robbery. We find that this testimony did not include a prior consistent statement, and defendant has failed to show manifest injustice.

III

Defendant next contends that the trial court erred in denying his motion for a directed verdict, because he was not armed with a dangerous weapon or any article used in a manner to lead the victim to reasonably believe it was a dangerous weapon. Defendant maintains that the evidence failed to show that he made any effort to physically communicate the presence of a dangerous weapon. According to the prosecution, the evidence of Herzog's threat and the presence of the bulge in defendant's vest was sufficient to establish the armed element of the offense.

A

In reviewing a claim concerning the denial of a motion for a directed verdict, this Court must view the evidence 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. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979); People v. Strunk, 184 Mich.App. 310, 325, 457 N.W.2d 149 (1990).

Armed robbery is defined at MCL 750.529; MSA 28.797:

Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any [193 MICHAPP 197] article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony....

B

Two decisions from our Supreme Court are most applicable to this case.

In People v. Saenz, 411 Mich. 454, 307 N.W.2d 675 (1981), the Court ruled that the trial court erred when it denied the defendant's motion for a directed verdict with respect to a charge of armed robbery. The Saenz Court held that the victim's belief that the defendant was armed must be induced by the use or fashioning of an article with which the assailant was armed. Because the victim did not see an article, a bulge under the defendant's coat, or the defendant's hand shaped to look like a weapon and the assailant did not say he had a gun, the Supreme Court reversed the defendant's conviction. Id. at 458, 307 N.W.2d 675.

In People v. Parker, 417 Mich. 556, 339 N.W.2d 455 (1983), the Court held that to convict a defendant of armed robbery, the factfinder must determine that at the time of the robbery the assailant, in fact, was armed with something and not just that the victim thought he was armed. The Parker Court stated:

It is not enough that the person assaulted is put in fear; a person who is subjected to an unarmed robbery may be put in fear.

To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon--a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.

[193 MICHAPP 198] Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.

To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.

Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim. [Id. at 565, 339 N.W.2d 455; emphasis added.]

The victim in Parker testified that she did not see a weapon or article fashioned like a weapon, but that the defendant told her to shut up or he would use his knife and stab her. Thus, the Court concluded that jury instructions were erroneous because they required only a finding that the victim reasonably believed that the defendant was armed. Id. at 566, 339 N.W.2d 455.

In this case, the robbery took place at an Arby's restaurant. The cashier testified at trial that the woman handed him a paper bag and told him to fill it with money because the man next to her had a gun. The cashier saw a bulge in the vest defendant was wearing. The cashier saw defendant's hands at all times. Herzog testified that defendant did not have a gun.

The trial court instructed the jury concerning armed robbery, unarmed robbery, larceny from a person, and attempted armed robbery. The jury found defendant guilty of unarmed robbery. Because the evidence failed to show that defendant was actually armed with a dangerous weapon or any article that would cause the victim to reasonably[193 MICHAPP 199] believe that the article was a dangerous weapon, the trial court erred in denying defendant's motion for a directed verdict with regard to the armed robbery charge. ¹

C

Although our Supreme Court ruled that a robber must be armed with something at the time of the robbery in order to establish the armed element of armed robbery, Parker, supra, numerous panels of this Court have held that the use of only a hand and a covering in a manner to resemble a gun satisfies this element. See People v. DeMeyers, 183 Mich.App. 286, 454 N.W.2d 202 (1990); People v. Grihm, 148 Mich.App. 285, 383 N.W.2d 631 (1986); People v. Burden, 141 Mich.App. 160, 366 N.W.2d 23 (1985). ² However, each of these three cases is distinguishable, because the victim in this case was able to see defendant's hands at all times and saw only a bulge in the vest defendant was wearing. Accordingly, defendant's hand was not "an article" used in a manner to lead the victim to reasonably believe it was a dangerous weapon.

Still, the fact remains that defendant had a bulge in the vest he was wearing. In People v. Tullie, 141 Mich.App. 156, 366 N.W.2d 224 (1985), this Court relied on People v. Hayden, 132 Mich.App. 273, 348...