People v. King, Docket No. 163102

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Before DOCTOROFF; PER CURIAM
• Citation: 534 N.W.2d 534,210 Mich.App. 425
• Docket Number: Docket No. 163102
• Decision Date: 05 May 1995
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Levurn KING, Jr., Defendant-Appellant.

Page 534

534 N.W.2d 534 210 Mich.App. 425 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Levurn KING, Jr., Defendant-Appellant. Docket No. 163102. Court of Appeals of Michigan. Submitted Feb. 17, 1995, at Detroit.
Decided May 5, 1995, at 9:05 a.m.
Released for Publication July 12, 1995.

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[210 Mich.App. 426] Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert J. Berlin, Chief Appellate Atty., and Mark G. Cardellio, Asst. Pros. Atty., for the People.

State Appellate Defender by Charles J. Booker, for defendant on appeal.

Before DOCTOROFF, C.J., and SMOLENSKI and DANHOF, ^* JJ.

PER CURIAM.

A jury convicted defendant of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797. Defendant received a sentence of two to fifteen years. We granted leave to appeal in this delayed appeal so we could consider whether a voluntary intoxication defense should have been available to defendant. We affirm.

On August 5, 1991, at about 12:30 a.m., two men in a car robbed a Mobil gasoline station in Sterling Heights. The station attendant, Michael Kluk, identified defendant as one of the robbers. Kluk testified that defendant and another man came into the station together. The other man was never identified.

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After defendant bought a pack of cigarettes and the other man paid for gas, they left. The other man returned a few minutes later, stuffed about fourteen or fifteen cigarette cartons into a tote bag, and ran out the door. Kluk followed the man. When Kluk warned the man that he was being videotaped by cameras, the man pulled out a gun and threatened to kill Kluk if he did not return inside. Kluk went inside and observed the two men alongside a black Camaro. As Kluk was trying to read the license plate number [210 Mich.App. 427] on the Camaro, he saw defendant throw the plate into the car. Defendant then drove the car away, with the other man in the passenger seat.

Officer David Crown of the Warren Police Department noticed a 1980 Chevrolet Monza without a license plate speeding on Eight Mile Road at about 3:45 a.m. Crown identified defendant as the driver. Defendant's driving was reckless and exhibited all the indications of a drunken driver. When Officer Crown pulled the car over, however, defendant did not smell of alcohol and was coherent, and Crown concluded he was not intoxicated. Crown detained defendant for traffic violations and because he fit the description of the robber of the gasoline station. When Crown interviewed defendant at the Warren police station, defendant admitted he was in the area of Fifteen Mile Road and Schoenherr that night. Defendant claimed that he had dropped off a hitchhiker at the corner of Fifteen Mile and Schoenherr, and that after defendant bought cigarettes, the hitchhiker jumped back in the car with cartons of cigarettes and told defendant to get out of there. Defendant let the hitchhiker drive while he drank a bottle of wine.

Defendant's sister, brother, and nephew testified at trial that defendant is an alcoholic and is easily influenced, especially when drunk. Defendant's brother testified that defendant lived in his car in August 1991. Defendant's brother also stated that when he saw defendant earlier in the evening of August 5, 1991, defendant was drunk.

A major issue at trial was how well Kluk, the only eyewitness, could see the event. Conflicting testimony was presented regarding how many panes of glass Kluk had to look through and regarding the presence of obstructions to Kluk's view of the pertinent gasoline pump and of defendant. [210 Mich.App. 428] The trial occurred in late February 1992. The trial court gave a cautionary instruction regarding changed weather and time-of-day conditions before the prosecution showed a videotape of the crime scene. After beginning deliberations the following day, the jury was allowed to view the crime scene over defense counsel's objection. The next day, the jury found defendant guilty of armed robbery.

First, defendant argues that, because aiding and abetting armed robbery is a specific intent crime, he was entitled to receive a jury instruction regarding voluntary intoxication. We disagree.

The elements of an armed robbery are (1) an assault and (2) a felonious taking of property from the victim's person or presence while (3) the defendant is armed with a weapon described in the statute. People v. Allen, 201 Mich.App. 98, 100, 505 N.W.2d 869 (1993). Armed robbery is a specific intent crime for which the prosecutor must establish that the defendant intended to permanently deprive the owner of property. People v. Fordham, 132 Mich.App. 70, 75, 346 N.W.2d 899 (1984), rev'd on other grounds 419 Mich. 874, 347 N.W.2d 702 (1984). The defense of intoxication will negate the specific intent element of the crime charged if the degree of intoxication is so great as to render the accused incapable of entertaining the intent. People v. Savoie, 419 Mich. 118, 134, 349 N.W.2d 139 (1984). Voluntary intoxication is a defense only to a specific intent crime. People v. Langworthy, 416 Mich. 630, 638, 331 N.W.2d 171 (1982).

If defendant had been charged as the principal in this armed robbery, the defense of intoxication would have been available to him upon a proper showing that he was intoxicated. Fordham, supra at 75, 346 N.W.2d 899; Savoie, supra at 134, 349 N.W.2d 139; Langworthy, supra at 638, 331 N.W.2d 171. However, in People v. Karst, 138 Mich.App. [210 Mich.App. 429] 413, 416, 360 N.W.2d 206 (1984), this Court defined two types of aiding and abetting: (1) where the aider and abettor himself possesses the requisite specific intent for the underlying

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crime and (2) where the aider and abettor knows that the principal has the requisite intent. Id. Voluntary intoxication was held not to negate the latter:

Where the offense is a specific intent crime, as here, voluntary intoxication of the defendant would be a defense to the first type, aiding and abetting with [specific] intent. However, we agree with the trial court that voluntary intoxication of the defendant is not a defense to the second type, aiding and abetting with knowledge, because this knowledge element is only a general intent, not a specific intent requirement.

... Therefore, notwithstanding that the substantive offense involved herein is a specific intent crime, defendant's voluntary intoxication was not a defense to conviction as an aider and abettor having knowledge of his coparticipants' possession of the requisite specific intent. [138 Mich.App. at 415-416, 360 N.W.2d 206.]

After Karst, the Michigan Supreme Court decided People v. Kelly, 423 Mich. 261, 278, 378 N.W.2d 365 (1985). In Kelly, our Supreme Court addressed the jury instruction for aiding and abetting a felony murder. The Supreme Court declined to review the actual instruction because the defendant had failed to preserve that issue for review. Id. at 280, 378 N.W.2d 365. Regarding the two types of aiding and abetting, the Supreme Court stated:

The...