People v. McShan, Docket Nos. 15886
| Decision Date | 29 May 1974 |
| Docket Number | Docket Nos. 15886,16116,No. 3,3 |
| Citation | 53 Mich.App. 407,219 N.W.2d 792 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Felix McSHAN, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wallace TAYLOR, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Stanley Everett, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and R. B. BURNS and SMITH,* JJ.
Defendant McShan was found guilty by a jury of aiding and abetting an armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797 and M.C.L.A. § 767.39; M.S.A. § 28.979. Defendant Taylor was found guilty of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. McShan received a sentence of 3 1/2 to 15 years in prison; Taylor received 10 to 30 years.
On November 25, 1971, at about 10:00 p.m., two black males visited the home of Millard and Winifred VanDerVoort. Mr. VanDerVoort answered a ringing of the door chimes and, when he unlatched the storm door, it was jerked from his hand by one of the two men. One of the men began beating Mr. VanDerVoort while the other held a gun. The men demanded the VanDerVoorts' money and took the VanDerVoorts' wallets and a purse. After beating Mr. VanDerVoort, the men tore the phone off the wall and left the house.
At about the same time, two police officers on routine patrol discovered Felix McShan's Buick automobile parked near the scene of the crime; as the policemen approached the car, defendant McShan sat up in the front seat and told the officers that he was working on his tape player. McShan was asked to produce his driver's license, which he did. As one officer dealt with McShan, two black males came running towards the parked vehicles. The police vehicle was marked although its flashing lights were not in motion at the time. According to the officers, the two men ran towards them until they were perhaps 20 to 25 feet away, and then made a 'U-turn' and ran into a wooded area. One of the officers chased the two men and fired three warning shots, but was unable to catch them at that time. The officers then received, over their radio, notice of the VanDerVoort robbery, whereupon McShan was arrested. A short while later the officers found a handgun about 15 feet from the point where the two fleeing men had entered the wooded area.
McShan testified at trial that he had, on the day in question, installed a tape player in his automobile, that as he was driving on Parkway Drive he struck some bumps which caused a wire to become loose in the tape player, and that he had parked on the street, near a streetlight, to fix the tape player. In fact, music was being played in defendant's car when the officers approached him. McShan said that he saw the two men running in his direction, heard the officer yell 'halt', and saw the men run into the wooded area; he also said that he saw that one of the men was carrying a small handgun.
On December 8, 1971, defendant Taylor and three persons were arrested in a home in Battle Creek on a charge of receiving and concealing stolen property. However, on October 30, 1972, a nolle prosequi was entered in that case. In any event, a holster was found in an upstairs bedroom; no one was present in the room when the holster was found, and defendant Taylor was arrested in a downstairs room. The arresting officer never saw defendant upstairs; the officers had proceeded to the address to execute an arrest warrant for Claude Winford, who was seen climbing out of the window and was apprehended. The home was owned by a third party and was supposedly vacant at this time. Defendant Taylor told the police officers that he lived in the home with the owner's son; however, it was later discovered that he did not reside there.
The gun was offered as an exhibit without objection. However, defense counsel did object to the admission of the holster as an exhibit. The trial court stated that it could not interrupt trial and hold a hearing as to the admissibility of the holster. The prosecutor argued that a motion to suppress that evidence should have been made before trial, and the trial court denied defendant's motion to exclude the holster.
The VanDerVoorts described their assailants as two young black males, one of whom was wearing gloves. They were unable to identify defendant Taylor in a lineup but they did identify him in court as the person who had assaulted Mr. VanDerVoort.
Defendant Taylor's defense was one of alibi. He claimed that on November 25, 1971, Thanksgiving Day, he was home having dinner with his family; then, after dinner, he watched television, listened to records, and went to bed. He said that he had not participated in the robbery, that he had remained at home throughout the evening of November 25, 1971, that he had maintained a mustache and goatee since 1968, and that he was not clean-shaven on Thanksgiving Day. Millard VanDerVoort had described his assailants as clean-shaven. Taylor's mother, sister, and two brothers testified as to defendant's presence at the Thanksgiving Day celebration in their home. There were, however, some discrepancies in their testimony, especially when his sister indicated that defendant was in his bedroom, fully dressed, contrary to his brother Raymond's testimony that defendant was undressed and under the bedcovers on the night in question.
McShan testified that he had parked his car on Parkway Drive to fix his tape player; an auto mechanic testified that some time in December, 1971, he had to repair the wiring in defendant's car, stating that it was badly tangled underneath the dashboard. McShan testified that he had known both Taylor and Winford for some time, and Taylor's jacket was found in McShan's car at the time of his arrest. McShan testified that he saw Winford on the night in question at approximately 9:30 p.m Defense counsel objected at trial to the consolidation of the two cases, indicating that he had done so at the preliminary examination. The trial judge ruled to continue the previous order which consolidated the cases, denying the motion. The court told the jury that there was a difference in the charges which the defendants faced, and stated the charges made against each defendant and the prosecution's claims against each defendant. Concerning Taylor's defense of alibi, the court instructed the jury:
'However, in the consideration of this class of defenses, it is necessary for you to take into consideration the fact that alibi is a defense that is easily proven and hard to disprove, therefore, you will be careful and cautious in examining the evidence bearing upon the question of alibi.'
The Court's instructions concerning aiding and abetting were, in part:
The Court instructed the jury that four possible verdicts were involved with respect to both defendants: guilty of armed robbery, guilty of assault with intent to rob while being armed, felonious assault, and not guilty. Defense counsel stated no objection to these instructions. After deliberating more than 6 hours, the jury returned a verdict of guilty on the armed robbery count in both cases.
Before trial, McShan's counsel made a motion requesting defendant to be sent to the Center for Forensic Psychiatry so that he could be examined and diagnosed as to his competence to stand trial. That motion was granted on February 25, 1972. On appeal, defense counsel has argued that the provisions of M.C.L.A. § 767.27a(3); M.S.A. § 28.966(11)(3) and M.C.L.A. § 767.27a(4); M.S.A. § 28.966(11)(4) were not followed, because defendant was examined at the University of Michigan hospital and the trial court had never received any diagnostic reports concerning defendant's competency. In addition, no formal judicial hearing was held to determine defendant's competency to stand trial.
The dispositive issue before this Court with respect to defendant McShan is whether the trial court erred in ordering him to stand trial where (1) the defendant had not been examined at a diagnostic facility certified by the Department of Mental Health; (2) no psychiatric report was forwarded to the trial court with respect to defendant's mental condition or competency to stand trial; and (3) no judicial hearing was held to determine defendant's competency to stand trial.
M.C.L.A. § 767.27a; M.S.A. § 28.966(11) provides in pertinent part:
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