People v. Lasenby

Decision Date27 May 1981
Docket NumberDocket No. 50848
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald E. LASENBY, Jr., Defendant-Appellant. 107 Mich.App. 462, 309 N.W.2d 572
CourtCourt of Appeal of Michigan — District of US

[107 MICHAPP 464] A. George Best, II, Detroit, for plaintiff-appellee.

Mark R. Hall, Detroit, for defendant-appellant.

Before KELLY, P.J., and V. J. BRENNAN and T. M. BURNS, JJ.

PER CURIAM.

The defendant was charged with armed robbery in violation of M.C.L. § 750.529; M.S.A. § 28.797 and possession of a firearm during the commission of a felony in violation of M.C.L. § 750.227b; M.S.A. § 28.424(2). A jury convicted the defendant of the lesser included offense of assault with intent to rob being armed, M.C.L. § 750.89; M.S.A. § 28.284, and found him not guilty of the felony-firearm charge. The defendant was sentenced to a term of from four to seven years in prison. The defendant appeals as a matter of right.

The complainant testified that on January 27, 1979, at 1:00 a. m., he was washing his car at a car wash when the defendant drove up in a burgundy Volare behind the car wash stall which the complainant was using and stated "give me your money or I'll kill you". The complainant stated that he didn't pay much attention to the defendant until the defendant again threatened him. The complainant testified that he then turned a water sprayer which he was using toward the [107 MICHAPP 465] defendant. At some point during the incident, the complainant called to his friend, Joe Boyd, who was washing his car in a nearby stall, for assistance. Mr. Boyd testified that he went to the stall where the complainant was and picked up a water sprayer and started spraying the defendant. The complainant stated that the defendant pulled out a gun and pointed it at the complainant. The complainant's testimony as to when the defendant produced a weapon was confusing. The complainant stated that the defendant pulled a gun from his waistband as he was getting out of his vehicle. Complainant also indicated that defendant pointed a gun out of the vehicle's window. Mr. Boyd stated that defendant had something in his hands but that he could not see what the object was.

The complainant indicated that after he saw the gun he started running. Mr. Boyd also ran out of the car wash with him. After they had run across the street, the complainant realized that he had left his keys in his automobile. The complainant stated that he heard his car door slam and the engine start. The complainant saw his car being driven out of the car wash and onto 7 Mile Road. The complainant and Mr. Boyd ran back to the car wash, jumped into Mr. Boyd's automobile and followed the complainant's car down 7 Mile. At the corner of 7 Mile and Evergreen, the complainant's car was involved in an accident. The defendant, who was driving the complainant's car, ran away from the scene of the accident. Shortly thereafter, the defendant returned to the scene of the accident where Boyd and the complainant grabbed the defendant and searched him. The complainant stated that, although no gun was found in the defendant's possession, a knife was found. No gun was found by the police officers [107 MICHAPP 466] investigating the alleged crime and none was produced at trial.

On appeal, defendant raises three issues. First, defendant contends that the jury's verdicts of guilty of assault with intent to rob being armed and not guilty of possession of a firearm during the commission of a felony are inconsistent and therefore require reversal. This issue recently has been decided contrary to defendant's contention. People v. Vaughn, 409 Mich. 463, 295 N.W.2d 354 (1980). In Vaughn, where the jury returned verdicts of guilty of felonious assault and not guilty of a felony-firearm charge, the Supreme Court, in reversing the Court of Appeals decision to vacate the defendant's conviction, stated:

"Our Court has recognized the role of the jury in a criminal trial. 'Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal to the judge as "undisputed" need not be believed by a jury.' People v. Chamblis, 395 Mich. 408, 420, 236 N.W.2d 473 (1975).

"Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury's capacity for leniency. Since we are unable to know just how the jurors reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant's release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility." Id., 466, 236 N.W.2d 473.

In accordance with the Court's holding in [107 MICHAPP 467] Vaughn, supra, the defendant's conviction should not be vacated on the basis of inconsistent verdicts. Furthermore, the facts of the instant case indicate that a rational explanation for the jury's verdicts exists. While the jury could have believed that defendant was not armed with the handgun and acquitted the defendant of the felony-firearm charge, the jury also could have believed that defendant was armed with a weapon when he assaulted the complainant and stole the car. Testimony at trial indicated that a knife was found in the defendant's possession when he was searched. Thus, the jury could have decided that a dangerous weapon other than a firearm was used by defendant.

Secondly, defendant argues that the prosecutor improperly and prejudicially argued that the jury had a "duty" to find the defendant guilty. We are not so persuaded. We first note that the defendant's counsel did not object to the prosecutor's statement during trial. It is well settled that the absence of objection during trial precludes appellate review of alleged prejudicial remarks by a prosecutor in closing argument, unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v. Rojem, 99 Mich.App. 452, 459, 297 N.W.2d 698 (1980); People v. Tenbrink, 93 Mich.App. 326, 332, 287 N.W.2d 223 (1979); People v. Blassingame, 59 Mich.App. 327, 335, 229 N.W.2d 438 (1975).

In some cases, a prosecutor's appeal to the civil duty or social fears of the jurors has...

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9 cases
  • People v. Wise
    • United States
    • Court of Appeal of Michigan — District of US
    • July 12, 1984
    ...objection is required to preserve this issue for appeal. People v. Cleveland, 295 Mich. 139, 294 N.W. 124 (1940); People v. Lasenby, 107 Mich.App. 462, 309 N.W.2d 572 (1981); People v. Hogan, 105 Mich.App. 473, 307 N.W.2d 72 (1981), lv. den. 413 Mich. 937 (1982). This Court will not reverse......
  • People v. Jansson
    • United States
    • Court of Appeal of Michigan — District of US
    • September 1, 1982
    ...issue would result in a miscarriage of justice. People v. Rojem, 99 Mich.App. 452, 459, 297 N.W.2d 698 (1980); People v. Lasenby, 107 Mich.App. 462, 467, 309 N.W.2d 572 (1981); People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626 (1977). Further, as an advocate, the prosecutor is free to relate......
  • People v. Guenther
    • United States
    • Court of Appeal of Michigan — District of US
    • April 1, 1991
    ...have provided contradictory testimony. See, e.g., People v. Parker, 307 Mich. 372, 376, 11 N.W.2d 924 (1943), People v. Lasenby, 107 Mich.App. 462, 469; 309 N.W.2d 572 (1981) (and cases cited therein), and People v. Jacoboni, 34 Mich.App. 84, 86, 190 N.W.2d 720 (1971). But see People v. Cen......
  • People v. Avery
    • United States
    • Court of Appeal of Michigan — District of US
    • May 4, 1982
    ...unless the prejudicial effect was so great that it could not have been cured by a timely cautionary instruction. People v. Lasenby, 107 Mich.App. 462, 309 N.W.2d 572 (1981), citing People v. Rojem, 99 Mich.App. 452, 297 N.W.2d 698 (1980), People v. Tenbrink, 93 Mich.App. 326, 287 N.W.2d 223......
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