People v. Kramer

• Citation: 310 N.W.2d 347,108 Mich.App. 240
• Decision Date: 28 July 1981
• Docket Number: Docket No. 53343
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry KRAMER, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 347

310 N.W.2d 347

108 Mich.App. 240

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry KRAMER, Defendant-Appellant.

Docket No. 53343.

Court of Appeals of Michigan.

July 28, 1981.

Released for Publication Sept. 28, 1981.

Richard H. Browne, Pontiac, for plaintiff-appellee.

David M. Lawson, Southfield, for defendant-appellant.

Before MAHER, P. J., and ALLEN and CYNAR, JJ.

ALLEN, Judge.

Following a joint jury trial, defendant and his codefendant and brother, Jeffrey Kramer, were each found guilty of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and three counts of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278. Sentenced August 1, 1979, to five concurrent terms of imprisonment of from 10 to 30 years, defendant appeals of right, assigning nine grounds for reversal.

The incidents for which defendant was convicted took place in the early morning hours of April 3, 1978, when defendant and his brother, wearing ski masks and brandishing shotguns, entered the Red Oaks Bar in Wixom. They forced the bar maid and customers to lie on the floor, extracted money from their wallets, and, upon being discovered by officers from the Wixom and Wolverine Lake Police Departments, fled in a copper-orange colored pickup truck after firing a shot which struck one of the officers in the hand. The robbers took the bar maid, Marion Molk, as a hostage. At two different locations, roadblocks were set up, but each time the robbers escaped after exchanging gunfire with the police. Eventually the truck was abandoned, and the two robbers escaped on foot, leaving the hostage lying unharmed in the pickup truck. A box of shotgun shells was found lying near the shoulder of the road next to the abandoned truck. A sawed-off, single barrel shotgun was found lying on the shoulder of the road to the rear of the truck on the passenger side. On the morning of April 13, 1978, defendant and his girlfriend entered the ticket office in the terminal building at the Detroit Metropolitan Airport. There he was arrested by officers of the Oakland County Sheriff's Department, and a .38-caliber revolver was removed from his waistband. During trial, the arresting officer stated that the weapon was "loaded and ready to go".

The arresting officer took defendant outside and placed him in his patrol car. At that moment, one of the officers saw a blue van and recognized Jeffrey Kramer as the driver. Jeffrey Kramer was promptly arrested, and a loaded handgun was removed from his trousers. After the two prisoners were secured, one of the arresting officers, Mark Goodrich, drove the van to the Sheriff's Annex at the airport where the van was searched. Four shotguns and several rifles were found in the van. Further details of the robbery and arrests appear in the opinion of this Court on the appeal of the codefendant, Jeffrey Kramer. People v. Kramer, 103 Mich. 747, 750-753, 303 N.W.2d 880 (1981).

The trial court denied motions for separate trials and further denied a motion to preclude the introduction of evidence of the shotguns and rifles found in the van when it was searched by the Oakland County Sheriff's Department. The court held that defendant, Larry Kramer, had no standing to object to the search of the vehicle in which the codefendant, Jeffrey Kramer, was sitting when arrested. The court also stated that there was a sufficient exigency to justify the deputy's second entry into the van.

During trial, prior to the prosecution's resting its case, defendant moved, in limine, to preclude the prosecution from impeaching defendant by evidence of three prior convictions within the previous ten years. Defendant acknowledged convictions for breaking and entering with intent to commit larceny, carrying a concealed weapon, and gross indecency. The court ruled that should defendant take the stand the prosecution could question defendant regarding the three prior convictions but could not elicit the details of the crimes or the labels or titles of the offenses. Later during the trial, defense counsel stated on the record that his client declined to testify because of fear of undue prejudice if his prior record was made known to the jury.

1. Did the trial court commit error requiring reversal in ruling that defendant could be impeached by use of evidence of his prior convictions but that only the fact of the prior convictions, and not the nature or details of the crimes could be elicited?

While this Court has split on the question, the weight of authority indicates that impeachment by evidence of prior, unspecified felony convictions clearly constitutes error. People v. Vincent, 94 Mich.App. 626, 633, 288 N.W.2d 670 (1980); People v. Jones, 92 Mich.App. 100, 109-112, 284 N.W.2d 501 (1979); People v. Graves, 98 Mich.App. 112, 116-117, 296 N.W.2d 4 (1979); People v. Dixon, 99 Mich.App. 847, 849, 298 N.W.2d 647 (1980). Contra: People v. Huff, 101 Mich.App. 232, 248-252, 300 N.W.2d 525 (1980). However, such error is harmless, where the evidence of guilt is overwhelming. People v. Makidon, 84 Mich.App. 287, 289, 269 N.W.2d 568 (1978); People v. Moseley, 94 Mich.App. 461, 465, 290 N.W.2d 39 (1979); People v. Mustafa, 95 Mich.App. 583, 585, 291 N.W.2d 130 (1980); People v. Ovegian, 106 Mich.App. ---, 307 N.W.2d 472 (1981). As set forth later in this opinion, ¹ the evidence against defendant, although circumstantial, was overwhelming, particularly the evidence linking him to the blue van and to the weapons found therein. Defendant's main defense lack of identification would have been put severely to the test had defendant elected to testify. This, rather than fear of exposure by prior convictions, we believe, was the true reason that defendant declined to testify. We reject defendant's argument that an error "can't be harmless" where the defendant does not take the stand. In support of this assertion counsel points out that in Moseley and Ovegian the defendant did not testify and that in Makidon and Mustafa the opinion fails to disclose whether defendant testified or not. The inference to be drawn from counsel's argument is that there is no case holding that an error in admitting a prior conviction is harmless where a defendant does not testify. However, a check of the record and file in Makidon does disclose that defendant elected to remain silent after the trial court declined to exclude evidence of defendant's prior criminal convictions.

2. Did the trial court err in denying defendant's motion to suppress evidence seized from the van pursuant to a search warrant, where the defendant was neither the owner nor the occupant of the van and where certain facts articulated in the affidavit for the search warrant were discovered by the affiant officer upon entering the van to drive it to the police station after a codefendant's arrest?

The blue van in which the weapons were found was a stolen vehicle. Neither defendant nor his brother were the owners or lessees, and defendant was not a passenger in the vehicle when the weapons were seized. In Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the defendants were passengers in a car which they neither owned nor leased, yet one which they were using with the owner's permission. Nevertheless, the United States Supreme Court held the defendants lacked standing because they had no reasonable expectation of privacy in the place searched. In accord with Rakas are United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Since defendant's interest in the van in the instant case was even less than that of the defendants in Rakas, et al., we conclude that defendant lacked standing to contest the search. Furthermore, the identical claim was made by defendant's brother and was rejected in Kramer, supra, on grounds that the search was a permissible inventory search.

3. Did the trial court's instructions on the crime of assault with intent to commit murder, to which no objection was made, constitute error?

Defendant challenges the jury instruction given on the crime of assault with intent to commit murder. Defendant claims that the instruction was deficient because it failed to state that only actual malice a specific intent to kill rather than implied malice an intent to cause serious bodily harm or risk of death is required. Defendant's argument is flawed in three respects. First, the instructions were taken directly from the Michigan Criminal Jury Instructions, CJI 18:1:01, and included an instruction on specific intent, CJI 3:1:16. Second, the instruction on malice was in accord with existing law. People v. Moncure, 94 Mich.App. 252, 256, 288 N.W.2d 675 (1979), vacated on other grounds 409 Mich. 905, 295 N.W.2d 494 (1980). See CJI 16:3:01. Third, this Court has held that proof that a defendant intended to commit either first- or second-degree murder establishes the mental element of assault with intent to commit murder. People v. Branner, 53 Mich.App. 541, 544-546, 220 N.W.2d 183 (1974), lv. den. 392 Mich. 814 (1974); People v. Eisenberg, 72 Mich.App. 106, 114-116, 249 N.W.2d 313 (1976), lv. den. 401 Mich. 803 (1977). Thus, the instruction on malice did not constitute error.

4. Was sufficient evidence presented to establish the identity of defendant as one of the two individuals involved in the crimes charged?

Citing People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972), defendant claims that the evidence linking him to the crimes charged was all circumstantial and as such was insufficient to connect him to the crimes charged. Because the two robbers wore ski masks and gloves during the robbery and the flight in the truck, the barmaid and hostage were unable to identify the individuals charged except to the extent that one was bigger than the other and that during the flight in the truck they called one...