People v. Leggions

• Decision Date: 20 May 1986
• Docket Number: Docket No. 78227
• Citation: 386 N.W.2d 614,149 Mich.App. 612
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Clarence LEGGIONS, Defendant-Appellant. 149 Mich.App. 612, 386 N.W.2d 614
• Court: Court of Appeal of Michigan — District of US

Page 614

386 N.W.2d 614

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Clarence LEGGIONS, Defendant-Appellant.

Docket No. 78227.

149 Mich.App. 612, 386 N.W.2d 614

Court of Appeals of Michigan.

Submitted Nov. 5, 1985.

Decided March 4, 1986.

Released for Publication May 20, 1986.

[149 MICHAPP 614] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty. and K. Davison Hunter, Asst. Pros. Atty., for the People.

James R. Newhard, State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant-appellant.

Before WALSH, P.J., and MacKENZIE and FERGUSON ^*, JJ.

WALSH, Presiding Judge.

Defendant appeals from a conviction by a jury of larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Defendant was also convicted of being a fourth-felony offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084, and was sentenced to from 5 to 25 years in prison.

On appeal, defendant argues that the trial court erred in: denying his motion for directed verdict; ruling that two witnesses were not res gestae witnesses and that his motion to endorse them was untimely; ruling that he could be impeached by evidence of his prior convictions; and failing to obtain a written waiver of trial by jury on the habitual offender charge.

FACTS

Terry Feasel, an employee of Wilson's Suede and Leather Store in the Lansing Mall, testified that she was working alone on May 19, 1983. She waited on two customers that morning, neither of whom ventured toward the back of the store. She observed nothing out of order in the store that [149 MICHAPP 615] morning. At noontime an older black man, later identified as Donny Mask, entered the store and began looking at coats on a rack near the front right-hand side of the store. Just behind him, a white female, later identified as Mona Hettich, entered and went to a rack of coats near the front left-hand side of the store. Defendant entered with Ms. Hettich, but proceeded directly down the left-hand side of the store to the back. On his way back, he passed by a rack of women's leather pants, but Ms. Feasel did not see him stop or pause at any rack on his way to the back of the store. Feasel went to the front of the store to help Hettich try on coats. She glanced back at defendant and saw him make a quick movement. She went back to see if he needed assistance. As she approached defendant, she noticed that there was a black bag on the rack next to him. Inside the bag she could see leather pants still on the hangers, with the Wilson tags visible. She had never seen the black bag before. There were no leather pants near defendant but he would have passed the rack of women's leather pants on his way toward the back of the store. Defendant had another pair of women's leather pants in his hand, which he dropped to the floor as Feasel approached. She asked defendant to leave the store and notified mall security. Defendant was apprehended in the parking lot. Hettich and Mask were also there and their names were written in the police report.

ISSUES

Defendant argues that the circumstantial evidence presented at trial was insufficient to support the findings of asportation and criminal intent. We disagree. Although the clerk did not see defendant [149 MICHAPP 616] remove leather pants from the rack and take them to the back of the store, a reasonable inference that he did so can be drawn from her testimony. She testified that she saw him pass the rack of leather pants, she saw him holding a pair at the back of the store, and there were no leather pants on racks in that location. We find that the prosecution, through the testimony of the clerk, presented evidence on each of the six elements of larceny in a building. Freeman v. Meijer, Inc, 95 Mich.App. 475, 478, 291 N.W.2d 87 (1980). The motion for directed verdict was properly denied.

Nor do we find an abuse of discretion in the trial court's decision to allow impeachment of defendant by evidence of his prior convictions. The court recognized its discretion, People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), and considered the nature of the prior offenses and the similarity of the prior offenses with the offense for which the defendant was on trial, People v. Crawford, 83 Mich.App. 35, 39, 268 N.W.2d 275 (1978). Moreover, prior to the trial court's ruling on the motion to admit evidence of prior convictions, defense counsel indicated that he did not think the defendant would testify. Defendant, therefore, failed to establish that he would take the stand if evidence of the convictions was not admitted and to outline the nature of his proposed testimony. Thus, defendant's argument that the court failed to consider the effect on the decisional process if he did not testify out of fear of impeachment, Crawford, supra, p. 39, 268 N.W.2d 275, is not reviewable on appeal. People v. Owens, 131 Mich.App. 76, 82-83, 345 N.W.2d 904 (1983); People v. Casey, 120 Mich.App. 690, 695-697, 327 N.W.2d 337 (1982); People v. Wilson, 107 Mich.App. 470, 476-477, 309 N.W.2d 584 (1981).

Defendant also argues that the trial court erred in denying his motion for a directed verdict on the [149 MICHAPP 617] grounds that the prosecution had failed to endorse and produce Donny Mask and Mona Hettich as res gestae witnesses. One of the grounds for denial of the motion was that it was untimely. We agree.

Both Mask and Hettich were well known to the defendant. In fact, Hettich was the defendant's girlfriend and entered the store with him. Mask was also a friend of the defendant's and entered the store just ahead of him. It has long been firmly established in this state that if a defendant knows of the existence of a res gestae witness and fails to move for endorsement of that witness until after the completion of the prosecution's case, he waives his right to endorsement and production of the witness. People v. Howey, 118 Mich.App. 431, 325 N.W.2d 451 (1982); People v. Robideau, 94 Mich.App. 663, 289 N.W.2d 846 (1980), aff'd on other grounds 419 Mich. 458, 355 N.W.2d 592 (1984); People v. Ferguson, 94 Mich.App. 137, 288 N.W.2d 587 (1979), lv. den. 409 Mich. 949 (1980); People v. Harrison, 75 Mich.App. 556; 255 N.W.2d 682 (1977); People v. Parsons, 59 Mich App 79; 228 N.W.2d 852 (1975); People v. Jones, 38 Mich.App. 512, 516, 196 N.W.2d 817 (1972), lv. den. 388 Mich. 792 (1972).

Defendant suggests that this long-standing rule was overturned by the Supreme Court in People v. Pearson, 404 Mich. 698, 273 N.W.2d 856 (1979). We are strongly persuaded to the contrary. In none of the three cases consolidated in Pearson did the defendant wait until the close of the prosecution's proofs to move for endorsement of the res gestae witnesses. Nowhere in the Pearson opinion does the Supreme Court consider or even mention the issue of waiver by a defendant of the res gestae rule.

The essential ruling in Pearson is that the missing res gestae witness issue may not be raised on appeal unless there has first been a hearing in the [149 MICHAPP 618] trial court at which the issue is raised and factual disputes relating thereto are determined. The hearing may be held at trial or in a post-trial motion for new trial.

In footnote 4 of the Pearson opinion the Court states its belief that the best time to hold this hearing at trial is at the...