People v. Moore

Decision Date21 January 1988
Docket NumberDocket No. 82073
Citation417 N.W.2d 508,164 Mich.App. 378
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Oscar MOORE III, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

[164 MICHAPP 380] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Thomas S. Richards, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and KELLY and TAHVONEN, * JJ.

SHEPHERD, Presiding Judge.

Defendant Oscar Moore III was convicted by a jury of one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1) and (2); M.S.A. Sec. 28.788(2)(1) and (2), one count of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and four counts of possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He appeals from his convictions, asserting that he was improperly deprived of his right to testify, was prejudiced when the jury saw him in handcuffs, and was improperly convicted of multiple counts of felony firearm. He also appeals his sentence of one hundred to three hundred years on the armed robbery conviction, claiming that the sentence is cruel and unusual, contrary to the indeterminate sentence act, and is so excessive as to shock the judicial conscience. We affirm defendant's convictions, but vacate defendant's armed robbery sentence and remand for resentencing.

Defendant's convictions arose out of his assault and robbery of the victim. At gunpoint, defendant stole the victim's money and necklace and forced her to submit to intercourse and fellatio. After defendant left the victim's home, she immediately contacted the police and gave a description of her assailant. A short time later, defendant, who resembled the victim's description, was observed and followed by an officer. When the officer approached defendant, defendant shot at the officer and fled. Defendant was subsequently apprehended by other officers.

Prior to trial, by motion in limine, the defense succeeded in suppressing evidence of defendant's prior convictions for impeachment purposes under MRE 609. However, the trial court's ruling did not preclude the use of evidence of the prior convictions[164 MICHAPP 382] to show perjured testimony. At the close of the prosecutor's case, defense counsel informed the court that he had recommended to defendant that he not testify. This was based on counsel's understanding that if the defense offered testimony that defendant was "a good law-abiding citizen," the prosecutor would be at liberty to rebut the claim by reference to evidence of the prior convictions. The trial court informed defendant that, if he testified, the prosecution might be permitted to make such use of the evidence of the prior convictions. The court also advised defendant of his right to remain silent and his right to testify. Defendant then chose not to testify.

Defendant first contends that the trial court's refusal to definitively rule on the admissibility of evidence of his prior convictions denied him his right to testify. Our Supreme Court has ruled that a defendant is entitled to know before he takes the stand whether, if he does so, evidence of his prior criminal convictions can be used for impeachment. People v. Lytal, 415 Mich. 603, 609, 329 N.W.2d 738 (1982), reh. den. 417 Mich. 1105 (1983). However, the Lytal rule only applies to evidence of prior convictions offered to impeach a defendant's general credibility. It remains within the trial court's discretion to admit evidence of prior convictions at any time to show perjured testimony by the defendant. People v. Douglas Taylor, 422 Mich. 407, 414, 373 N.W.2d 579 (1985).

In the instant case, the trial court was unable to rule in an anticipatory manner because defendant made no specific offer of proof as to what his testimony would be. The trial court, however, did explain the possible consequences of defendant's testimony. Those consequences were dependent upon the precise nature of defendant's testimony on the stand. The court declined to speculate on [164 MICHAPP 383] the nature and the scope of defendant's testimony and its consequent impact upon the admissibility of impeachment evidence. This was a proper exercise of judicial discretion in the absence of a specific offer of proof and is no basis for reversal.

Moreover, admission of the prior conviction evidence would have been wholly proper. A defendant cannot claim under oath to be a "law abiding citizen" and ask the court to shield his blatant perjury from the jury's view under the guise of MRE 609. MRE 609 does not govern the use of evidence of prior criminal conduct to refute affirmative evidence of a criminal defendant's good character. Nor is MRE 609 "intended to apply where evidence of prior convictions is offered to rebut specific statements of the defendant who testifies at trial." People v. Douglas Taylor, supra at 414, 373 N.W.2d 579.

After the proofs were closed and closing arguments completed, the defendant sought to reopen the proofs so that he could testify. The trial court refused to reopen the proofs. The defendant now contends that this decision denied him his right to testify.

Reopening the case after the defense has rested is a decision committed to the trial court's sound discretion. People v. Van Camp, 356 Mich. 593, 602, 97 N.W.2d 726 (1959); People v. Somma, 123 Mich.App. 658, 664, 333 N.W.2d 117 (1983). In reviewing the trial court's exercise of discretion, several factors are pertinent. These include whether conditions have changed or undue advantage would result, whether newly discovered and material evidence is sought to be admitted, whether surprise would result, and the timing of the motion during the trial. Van Camp, supra; Bonner v. Ames, 356 Mich. 537, 541, 97 N.W.2d 87 (1959); Kornicks v. Lindy's Supermarket, 24 Mich.App. [164 MICHAPP 384] 668, 672, 180 N.W.2d 847 (1970), lv. den. 384 Mich. 771 (1970). In the case at bar, a significant additional factor is defendant's constitutional right to testify. See People v. Simmons, 140 Mich.App. 681, 683-684, 364 N.W.2d 783 (1985), lv. den. 422 Mich. 963 (1985).

The right to testify is not an absolute. It will be deemed waived if the defendant decides not to testify or acquiesces in his attorney's decision that he will not testify. The test is whether the defendant's waiver was made knowingly and voluntarily. Simmons, supra.

The record discloses that defendant's waiver of his right to testify was made knowingly and voluntarily. There were no changes in circumstances following that decision. There was no newly discovered evidence, nor does defendant suggest that the prosecution gained undue advantage by the court's decision not to reopen the proofs. Further, the request to reopen proofs was very tardy, as closing arguments had already been concluded. Since defendant had already waived his right to testify, it was within the trial court's sound discretion to permit or disallow his testimony at that stage of the trial. We find no abuse of discretion.

Defendant also argues that the trial court should have declared a mistrial following the jury's brief, inadvertent view of defendant in handcuffs. The incident occurred when the deputies having custody of defendant were returning him to court following a recess.

In general, freedom from shackling of a defendant during trial has long been recognized as an important component of a fair and impartial trial. People v. Duplissey, 380 Mich. 100, 103, 155 N.W.2d 850 (1968); People v. Baskin, 145 Mich.App. 526, 545, 378 N.W.2d 535 (1985). However, this rule does [164 MICHAPP 385] not extend to circumstances in which a defendant may be shackled outside a courtroom to prevent escape. People v. Cleveland Wells, 103 Mich.App. 455, 459, 303 N.W.2d 226 (1981); People v. Panko, 34 Mich.App. 297, 300, 191 N.W.2d 75 (1971), lv. den. 385 Mich. 783 (1971). In addition, where a jury inadvertently sees a shackled defendant, there must be some showing that prejudice resulted. People v. Herndon, 98 Mich.App. 668, 672, 296 N.W.2d 333 (1980). It was incumbent upon defendant here to establish prejudice. Wells, supra. He failed to do so, and there is no error requiring reversal.

Defendant next contends that he was improperly convicted of multiple counts of felony firearm. Neither his statutory argument nor his constitutional double jeopardy claim have merit.

In People v. Morton, 423 Mich. 650, 655-656, 377 N.W.2d 798 (1985), our Supreme Court construed the legislative intent of the felony-firearm statute and concluded that, but for a few exceptions not applicable here, every felony committed by a person possessing a firearm may result in a felony-firearm conviction. Significantly, the multiple underlying offenses in Morton occurred within the continuum of a single criminal transaction. A defendant's right to be free of double jeopardy is not impinged upon by this result. 423 Mich. at 655, 377 N.W.2d 798. There is no basis here to reverse defendant's convictions.

Defendant also challenges his sentence for armed robbery on several grounds. In addition to the one hundred to three hundred years imprisonment imposed for armed robbery, defendant was sentenced to life on the two criminal sexual conduct counts, six to ten years in prison on the assault conviction, and consecutive terms of two years each on the four counts of felony firearm. [164 MICHAPP 386] Defendant does not challenge his sentences on these other charges.

We do not believe the Legislature has authorized a sentence of one hundred to three hundred years in prison for the offense of armed robbery. This...

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