People v. Krist

• Decision Date: 06 November 1979
• Docket Number: Docket No. 78-154
• Citation: People v. Krist, 93 Mich.App. 425, 287 N.W.2d 251 (Mich. App. 1979)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry James KRIST, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 251

287 N.W.2d 251

93 Mich.App. 425

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

Docket No. 78-154.

Court of Appeals of Michigan.

Nov. 6, 1979.

Released for Publication Jan. 29, 1980.

James R. Neuhard, State App. Defender by Kathleen M. Cummins, Asst. State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and RILEY and THEILER, ^* JJ.

RILEY, Judge.

Defendant was tried and jury convicted of two counts of armed robbery. M.C.L. § 750.529; M.S.A. § 28.797. He was thereafter sentenced to concurrent terms of 14 to 20 years imprisonment on each count, and appeals by right.

The evidence presented at trial involved two closely related robberies. On December 10, 1976, at approximately 10:30 p. m., two men robbed the Beverage Barn, a take-out convenience store in Port Huron. On December 11, 1976, at about 12:10 a. m., 11/2 to 2 hours after the first robbery, a similar crime took place at Walsh's Party Store, also in Port Huron.

Witness Timothy Tiegeler, a clerk at the Beverage Barn, testified that as he returned from the stockroom he was struck, thrown to the floor near the cash register and ordered to lie still. One of the assailant's said, "that they had a .357 magnum and they were going to blow my head off." Tiegeler stated that although he never saw a gun, nor anything that looked like a gun, he conducted himself as though one was trained on him because of the threat made.

Various witnesses present at Walsh's Party Store stated that an "armed robbery" was specifically announced. In addition, co-participant Thomas Surline was variously described by four witnesses as waiving his hand in his coat pocket and shouting "I have a gun, I have a gun".

Surline testified for the prosecution, and admitted his participation in the two robberies stating that he and Krist had spent the evening of December 10, 1976, drinking heavily and smoking marijuana. He remarked that Krist had told an attendant at the Beverage Barn that he possessed a gun. Surline stated that, after going to two other bars nearby, they both robbed Walsh's Party Store. He further indicated that it was he who had his hand in his pocket, but asserted that he held a bottle of beer, and not a gun. On cross-examination, Surline claimed that neither he nor Krist actually had a weapon. He further testified that he had never seen defendant with a gun of any type.

Other facts necessary to the resolution of the five issues raised by defendant on appeal are discussed where pertinent.

Defendant initially contends that the trial judge erred in refusing to dismiss Count I (Beverage Barn robbery) because no evidence was adduced at trial showing that defendant was armed with a weapon as required by the armed robbery statute, M.C.L. § 750.529, Supra which provides that:

"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 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, punishable by imprisonment in the state prison for life or for any term of years." (Emphasis supplied.)

The essential components of the statute mandate a showing that (1) an assault was committed by defendant upon the complainant; (2) the defendant feloniously took property which might be the subject of larceny from the complainant or in his presence; and (3) the defendant was armed with a weapon as described in the statute. People v. Beebe, 70 Mich.App. 154, 157-158, 245 N.W.2d 547 (1976); People v. Karasek, 63 Mich.App. 706, 710, 234 N.W.2d 761 (1975).

Armed robbery is distinguished from unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798 ¹ by the element of a dangerous weapon, or any article so used or fashioned. Both crimes involve the element of assault and fear. With regard to its third requirement, the armed robbery statute evidences a dichotomous intermix between two separate measures of governmental proof. Verification of a "dangerous weapon" or "an article used or fashioned, etc." apparently requires an objective showing. However, the latter phrase is patently conjoined with subjective proof regarding the victim's state of mind.

The prosecution concedes that there was no evidence in Count I that a weapon was used, but maintains that the main thrust of the statute points to the reasonable belief of the victim, and, therefore, defendant's declaration that he had a gun and would use it was sufficient to sustain its burden of proof. We do not agree.

Several Michigan decisions have upheld convictions where, as in Count II, the facts adduced at trial indicated that a defendant had gestured with a covered hand in such a manner as to lead the victim to conclude that he probably had a weapon. People v. Shipp, 34 Mich.App. 67, 69, 190 N.W.2d 750 (1971); People v. Washington, 4 Mich.App. 453, 455-456, 145 N.W.2d 292 (1966); People v. Jury, 3 Mich.App. 427, 432, 142 N.W.2d 910 (1966). See also People v. Boxx, 16 Mich.App. 724, 725, 168 N.W.2d 628 (1969), wherein evidence that the victims felt hard objects pressed against them and saw what they thought were guns was sufficient to bind over defendant for trial. No case, however, has addressed the factual setting before us.

Our resolution of the issue is guided in part by the long-standing principle that criminal statutes are to be strictly construed. People v. Lockwood, 308 Mich. 618, 622, 14 N.W.2d 517 (1944); People v. Goulding, 275 Mich. 353, 358, 266 N.W. 378 (1936); People v. Reynolds, 71 Mich. 343, 348, 38 N.W. 923 (1888); People v. Gilbert, 88 Mich.App. 764, 768, 279 N.W.2d 546 (1979); People v. Goodchild, 68 Mich.App. 226, 232, 242 N.W.2d 465 (1976).

Consistent therewith, and in accordance with the wording of the statute, we are of the opinion that, under the "article used or fashioned" element of armed robbery, there must be, in addition to proof of the victim's fear, competent evidence purporting to establish some attempt by defendant, aside from mere oral insinuations, to physically communicate the existence of a dangerous weapon. A verbal statement, without more, is insufficient. In this manner, both the objective and subjective criteria of the "article so used or fashioned" portion of the statute are satisfied.

We note that the result of this interpretation does not relieve a defendant of criminal liability, but rather, only effects conviction under another, albeit lesser, statute, I. e., unarmed robbery. ² Accordingly, we vacate defendant's armed robbery conviction under Count I and remand for entry of conviction for unarmed robbery ³ and resentencing.

Defendant next assails the trial judge's failure to hold an evidentiary hearing ⁴ regarding the validity of his pre-custody photographic identification without counsel being present and by allowing the identifying witnesses to testify regarding same.

If the complained of procedure was, in fact, erroneous, we determine that any error in permitting such testimony was clearly harmless error. Gilbert v. California, 388 U.S. 263, 272-274, 87 S.Ct. 1951, 1956-1957, 18 L.Ed.2d 1178, 1186-1187 (1967); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 (1967); People v. Anderson, 389 Mich. 155, 167-169, 205 N.W.2d 461 (1973). The evidence of guilt in both Counts, including the considerable and destructive testimony of codefendant Surline, was overwhelming. In addition, despite any impropriety of the photo showups, the in-court identifications of defendant originated from an independent basis. People v. Hill, 88 Mich.App. 50, 64, 276 N.W.2d 512 (1979); People v. Richmond, 84 Mich.App. 178, 182, 269 N.W.2d 521 (1978). Witness Timothy Tiegeler recognized defendant as a high school classmate, and further testified that defendant had been in the Beverage Barn store twice before on the night in question. The four employees of Walsh's Party Store testified that they observed defendant throughout the course of the robbery, while one also recognized defendant from several previous appearances at the market. All gave detailed descriptions of defendant's appearance on the night in question. We find no reversible error.

Defendant also asserts that, for three reasons, he was denied the effective assistance of counsel: (1) despite evidence of a breakdown in the attorney-client relationship, the trial court failed to explore defendant's claims or appoint substitute counsel; (2) defense counsel had failed to demand separate trials for the two robbery offenses; and (3) counsel had failed to properly cross-examine co-participant Surline regarding a polygraph test.

Although an indigent defendant is constitutionally ⁵ guaranteed representation by counsel, that right does not extend to an attorney of his own choosing. People v. Eddington, 77 Mich.App. 177, 185, 258 N.W.2d 183 (1977). Nevertheless, he may be entitled to have his assigned lawyer replaced upon a showing of adequate cause, People v. Ginther, 390 Mich. 436, 441, 212 N.W.2d 922 (1973); People v. Blassingame, 59 Mich.App. 327, 331, 229 N.W.2d 438 (1975); People v. Bradley, 54 Mich.App. 89, 95, 220 N.W.2d 305 (1974), provided it does not unreasonably disrupt the judicial process. Blassingame, supra, 59 Mich.App. 331, 229 N.W.2d 438; People v. Wilson, 43 Mich.App. 459, 462, 204 N.W.2d 269 (1972), but see People v. Williams, 386 Mich. 565, 574-577, 194 N.W.2d 337 (1972). The decision regarding substitution is entrusted to the trial court's discretion, Eddington, supra, 77 Mich.App. 185-186, 258 N.W.2d 183, and will not be overturned on appeal absent an abuse of that discretion.

The record reveals that,...