People v. McConnell

• Decision Date: 08 June 1983
• Docket Number: Docket Nos. 61755,61756
• Citation: 335 N.W.2d 226,124 Mich.App. 672
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William McCONNELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 226

335 N.W.2d 226

124 Mich.App. 672

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William McCONNELL, Defendant-Appellant.

Docket Nos. 61755, 61756.

Court of Appeals of Michigan.

Submitted Nov. 8, 1982.

Decided April 6, 1983.

Released for Publication June 8, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Asst. Pros. Atty., and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Norman R. Robiner, Detroit, for defendant-appellant.

Before RILEY, P.J., and KAUFMAN and WALSH, JJ.

PER CURIAM.

Following a jury trial in Detroit Recorder's Court, defendant was convicted of two counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of possession of a firearm during the commission of a felony (felony-firearm), M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). In an unrelated case, defendant pled nolo contendere to one count of armed robbery and one count of felony-firearm. On Thursday, September 24, 1981, defendant was sentenced to concurrent terms of five to ten years imprisonment on each of the three armed robbery counts to be served after completion of concurrent mandatory terms of two years imprisonment on each of the felony-firearm counts. Defendant appeals from all of the convictions as of right, these cases having been consolidated on appeal. We address the numerous issues raised by defendant seriatim.

In the first of these two cases, the testimony at trial revealed that on April 16, 1981, defendant entered a fast-food restaurant in the City of Detroit and pointed a handgun at the restaurant employee, demanding that she give him money from the cash register. After the employee obeyed his demand, defendant then instructed her to give him money from two other cash registers. Accordingly, the employee went over to the next two registers where she and other employees emptied the contents and turned them over to defendant.

Defendant's first contention on appeal is that there was insufficient evidence to sustain his conviction of armed robbery of the second restaurant employee. The basis of this contention is the fact that defendant only pointed his gun at that employee for a short time.

The standard of review for a sufficiency of the evidence question was recently summarized in People v. Delongchamps, 103 Mich.App. 151, 159, 302 N.W.2d 626 (1981).

"When determining whether there is sufficient evidence to support their convictions, this Court must review the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), [cert. den., 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980) ].

The essential elements of armed robbery are as follow: (1) an assault, (2) a felonious taking of property from the victim's person or presence, and (3) the defendant must be armed with a weapon described in the statute. People v. Avery, 115 Mich.App. 699, 321 N.W.2d 779 (1982); People v. Beebe, 70 Mich.App. 154, 157, 245 N.W.2d 547 (1976). The element regarding an assault is satisfied if the defendant committed an unlawful act which placed another in reasonable apprehension of receiving an immediate battery. More is not required. People v. Sanford, 402 Mich. 460, 265 N.W.2d 1 (1978).

Neither defendant's brief nor our research reveals any authority holding that each of several armed robbery victims must have had the weapon pointed at them for a requisite minimum length of time. It seems reasonable to conclude that one who is confronted with a pointed gun would suffer a "reasonable apprehension" notwithstanding the fleeting duration of the gunman's aim. Thus, we conclude that there was sufficient evidence to sustain defendant's conviction of armed robbery of the second restaurant employee.

Second, defendant contends that the trial court improperly admitted third-party testimony regarding the pretrial lineup identification procedure in violation of the hearsay rule, MRE 802. Defendant's failure to object to the admission of this third-party testimony, however, precludes our review of this issue, absent manifest injustice. People v. Horton, 98 Mich.App. 62, 71, 296 N.W.2d 184 (1980). We find no such manifest injustice. In cases such as the one at bar, where there was other competent testimony given at trial by two other witnesses who attended the pretrial lineup, and where defense counsel had an opportunity to cross-examine the third party, any prejudice resulting from the erroneous admission of his testimony is harmless. People v. Prophet, 101 Mich.App. 618, 624, 300 N.W.2d 652 (1980).

In any event, we are not persuaded that the trial court erred in admitting this testimony. Where a third party's testimony regarding a pretrial lineup procedure is limited to the fact of identification and the circumstances surrounding the identification procedure, its admission into evidence is not erroneous. People v. Sanford, supra, 402 Mich. at p. 491, 265 N.W.2d 1; People v. Gwinn, 111 Mich.App. 223, 245, 314 N.W.2d 562 (1981).

This holding shall not be read as a departure from Judge Riley's position as stated in Prophet, supra, or People v. Turner, 116 Mich.App. 421, 323 N.W.2d 425 (1982), where she found error, albeit harmless, in the trial court's admission of a third party's testimony concerning a pretrial lineup procedure. The case at bar is markedly different from Prophet, supra, or Turner, supra, inasmuch as, in this case, the third party did not testify as to what the complainant actually said but, rather, his testimony was limited to the fact of identification and the circumstances surrounding the identification. Based on this record, we find no error.

Next, defendant contends that the trial court erred in refusing to grant a mistrial based on the prosecution's failure to comply with a discovery order. Specifically, defendant contends that the prosecution breached its duty pursuant to the discovery order, which required that "[a]ll statements known to the police and prosecutor of all endorsed witnesses" be turned over to defendant, by failing to inform defendant of the restaurant manager's oral identification of defendant made to the police at the time of the preliminary examination.

In People v. Pace, 102 Mich.App. 522, 530-531, 302 N.W.2d 216 (1980), this Court

set forth the standard of review for a discovery order violation as follows:

"Where a prosecutor has violated a discovery order--even if done inadvertently in good faith--unless it is clear that the failure to divulge was harmless beyond a reasonable doubt, we will reverse." (Footnotes omitted.)

In the case at bar, we find that the admission of this evidence was harmless beyond a reasonable doubt. Even if defendant had been furnished with the statement prior to trial, he would not have been able to suppress it. Hence, the only possible prejudice resulting from this failure to divulge was the inadequate preparation of cross-examination by defense counsel. However, the prosecutor eliminated this source of prejudice by insuring that the witness would "remain available for any additional cross-examination the defense would care to conduct". Moreover, in view of the other evidence against defendant, it is impossible to believe that, absent the restaurant manager's identification of defendant, he would have had a reasonably likely chance of acquittal. We conclude that the trial court did not commit reversible error in denying defendant's motion for a mistrial since the error was harmless beyond a reasonable doubt.

Defendant further contends that the prosecution improperly impeached him by questioning him about being a heroin addict. We disagree.

In cases involving larceny-related crimes, the prosecutor may question a defendant concerning his drug addiction to establish a motive for the crime charged. People v. Walker, 86 Mich.App. 155, 159, 272 N.W.2d 222 (1978). In People v. Talaga, 37 Mich.App. 100, 103, 194 N.W.2d 462 (1971), this Court stated:

"Whether the defendant was a heroin addict at or near the time of the offense was relevant and material to the establishment of a motive for defendant's commission of the crime charged. Motive, if established, would tend to rebut defendant's contention that he was at home and knew nothing of the charge made against him."

In view of its highly inflammatory nature, the Court in People v. Walker, supra, cautioned that such motive evidence be used with utmost discretion so as to minimize undue prejudice to defendant. To accomplish this, the Court set forth the following guidelines for admitting such evidence:

"The legal relevance of such evidence to motive for a theft offense would seem to depend upon proof of three factors: (1) that defendant not merely used a drug, but that he used a drug which is addictive and that he actually was, in some substantial measure, addicted, and thus, compelled to obtain the drug; (2) that he used the drug in such quantity that...