People v. Nabers

• Decision Date: 03 February 1981
• Docket Number: Docket No. 44136
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Shon V. NABERS, Defendant-Appellant. 103 Mich.App. 354, 303 N.W.2d 205
• Court: Court of Appeal of Michigan — District of US

Page 205

303 N.W.2d 205

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Shon V. NABERS, Defendant-Appellant.

Docket No. 44136.

103 Mich.App. 354, 303 N.W.2d 205

Court of Appeals of Michigan.

Feb. 3, 1981.

Rehearing Denied March 18, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 359] James R. Neuhard, State Appellate Defender, Lander C. McLoyd, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief Asst. Pros. Atty., Timothy L. Cronin, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and BRONSON and QUINN, ^* JJ.

BRONSON, Judge.

Following a jury trial, defendant was convicted of two counts of armed robbery, contrary to M.C.L. § 750.529; M.S.A. § 28.797, and one count of possessing a firearm during the commission of a felony, contrary to M.C.L. § 750.227(b); M.S.A. § 28.424(2). He was sentenced to two concurrent terms of from 12 to 20 years' imprisonment for the robberies and an additional two-year consecutive [103 MICHAPP 360] term for the felony-firearm conviction. Defendant appeals as of right.

Defendant was originally tried with a codefendant, Karl Mix. Following the first trial, Mix was found to be guilty as charged. However, the jury could not agree on a verdict as to defendant. Codefendant Mix is not involved in this appeal but, rather, is pursuing a separate appeal of his own.

The charges in the instant case stem from a robbery of a Richman Brothers Clothing Store in Dearborn, Michigan, on December 28, 1977. Stanley Shernoff, the store manager, testified that two men entered the haberdashery and proceeded to examine various items of clothing. Shernoff described the two individuals as black males; one was tall ("over six foot and weighed over 200, 220 pounds"), and the other was short ("about 5' 6 , 5' 5 , something like that"). Shernoff identified defendant as the shorter man.

After being fitted with a suit, the short man went into a dressing room. When he returned, the tall man went into the dressing room. Thereafter, the shorter individual knocked on the dressing room door. At this point, the pair approached the counter and the man identified as defendant brandished a gun and said, "Freeze". The duo took money from the cash drawer and several items of clothing and then left.

The major issue at trial concerned the identity of defendant as one of the robbers. Although Mr. Shernoff identified defendant in court, at a lineup conducted on January 11, 1978, he had stated that he was not sure that defendant was one of the robbers. David and Richard Wolfe both identified defendant as the shorter robber during the course of trial. David Wolfe, however, conceded that he [103 MICHAPP 361] had been unable to positively identify defendant at the prior trial which resulted in a hung jury. The prosecution was permitted to read into evidence the prior testimony of Bharat Shah, an unavailable witness, who had identified defendant as one of the robbers at the first trial. The former testimony of Sergeant Edward Sikora, who interviewed Mr. Shah near the time of the robbery, was also read to the jury. Sergeant Sikora stated that Shah had only given him a description of the taller man involved in the robbery. Five other witnesses who were in the store during the robbery could offer no identifications.

The defense presented several witnesses seeking to establish an alibi. Cheryl Garner stated that she took defendant to a bus station on December 26, 1977, and that he was going to travel to Minnesota. Ms. Garner also indicated that she picked defendant up at the bus station on January 10, 1978. Lukie Ealey testified that defendant stayed with him in Minnesota from December 27, 1977, to January 9, 1978. Celia Bizens, who lived with Ealey, corroborated this testimony.

Other facts will be discussed where relevant to specific issues.

I.

The first issue we confront on appeal is whether the trial court erred in admitting evidence of defendant's other crimes on the issue of identity. The similar-acts evidence introduced at trial concerned defendant's involvement in the robbery of the Swank Men's Shop at 15600 Joy Road in Detroit 12 days after the robbery for which defendant was convicted.

David Bailog, an employee at the Swank Men's [103 MICHAPP 362] Shop, testified that, on January 9, 1978, he and another employee were preparing to open the store when two men, one tall and one short, approached them and indicated that they wanted to come in. Mr. Bailog told them to come back in a few minutes when the store opened. The pair returned, and the shorter man, identified as defendant, asked to try on a coat. Bailog gave him a size 40 coat, but it was too small. Consequently, Bailog turned around to get him a size 42 coat. At this point, defendant pulled out a short silver gun and said, "This ain't for fun, it's for real." Bailog and the other employee in the store were then taken to the back, tied up, and gagged. The taller man stood guard over them. Various articles of clothing were taken. The tall man also asked Mr. Bailog for his wallet. Bailog gave it to him. However, as he had no money in it, the tall man returned the wallet.

Charles Tolchin, another employee of the Swank Men's Shop, gave testimony corroborating that of Mr. Bailog. Mr. Tolchin indicated that one of the robbers forced him to hand over his wallet and left with it. He identified defendant as the shorter robber and said that he was carrying a "small nickel plated type gun".

Both Bailog and Tolchin admitted that, at a lineup following the robbery, they expressed uncertainty that defendant was involved in the crime. Bailog testified that he had really been sure about his identification at the lineup but did not want to get involved. Both witnesses said that they were positive about their in-court identifications in the instant case. Neither witness described the short robber as having a bad complexion or facial hair, although defendant had an unusually bad complexion and a goatee.

[103 MICHAPP 363] The admission of evidence revealing defendant's other bad acts or crimes is allowable upon a showing of (1) substantial evidence that defendant committed the other acts, (2) special circumstances of the act tending to establish one of the enumerated items in MRE 404(b), which has superseded M.C.L. § 768.27; M.S.A. § 28.1050, ¹ and (3) materiality of the enumerated item to a determination of defendant's guilt of the charged offense. People v. Wilkins, 82 Mich.App. 260, 267-268, 266 N.W.2d 781 (1978), rev'd on other grounds 408 Mich. 69, 288 N.W.2d 583 (1980), People v. Bloom, 93 Mich.App. 573, 287 N.W.2d 5 (1979). See also People v. Major, 407 Mich. 394, 398-399, 285 N.W.2d 660 (1979).

After determining that the other-acts evidence is probative, the trial court must still weigh its probative value against the possibility that unfair prejudice will result to the defendant if it is admitted. MRE 403, Wilkins, supra, 82 Mich.App. at 270, 266 N.W.2d 781, People v. Ernest Smith, 87 Mich.App. 18, 22, 273 N.W.2d 573 (1978), People v. Oliphant, 399 Mich. 472, 489-490, 250 N.W.2d 443 (1976).

Defendant earnestly contends that the threshold requirement of the Wilkins test substantial evidence tending to show that defendant committed the other act was not established in this case. We believe that the prosecution did meet its burden of proof on this requirement. ² The argument to the contrary rests on the fact that the two witnesses to the Swank Men's Shop robbery had expressed some uncertainty concerning their identification at a lineup following the incident, certain discrepancies in these witnesses' descriptions of the defendant and his actual appearance, and the omission in the descriptions of certain details which defendant[103 MICHAPP 364] considers significant. As to the first point, both witnesses stated that they were positive that defendant was one of the Swank Men's Shop robbers at the trial of the instant matter. Furthermore, witness Bailog stated that he feigned uncertainty at the time of the lineup. As to the second point, any variations between the defendant's actual appearance and the witnesses' descriptions were minor. As to the third point, we do not expect witnesses to be able to give total recall of a felon's appearance.

Defendant was tried for the Swank Men's Shop robbery; this trial ended in a hung jury. Nonetheless, this fact does not automatically bar the admission of such evidence. ³ Oliphant, supra, 399 Mich. 499-500, 250 N.W.2d 443, People v. Bolden, 92 Mich.App. 421, 424, 285 N.W.2d 210 (1979). However, we take this opportunity to express our support for Judge Allen's partial concurrence and partial dissent in People v. Bolden, 98 Mich.App. 452, 464, 296 N.W.2d 613 (1980), wherein he writes:

"To the extent that a prior acquittal of the alleged similar act of the defendant reflects on the accuracy of the charge that defendant committed that act, then the defendant should be entitled to show that another jury determined that he did not commit the similar act."

We think the same rationale holds true where defendant was not convicted due to a hung jury.

Defendant also suggests that the other-acts evidence was not sufficiently similar to the circumstances of the charged offense to warrant its introduction. While this is a close question, we disagree. Both robberies occurred at men's clothing stores in [103 MICHAPP 365] the same general area of the Detroit metropolitan area. Both robberies were perpetrated by one tall and one short black male. In both robberies the culprits took not only the store's cash, but goods and the wallets of those who happened to be in the store. In both robberies the shorter culprit, alleged to be defendant, carried a small shiny or silvery gun. There was sufficient similarity in the modus operandi of the robberies to allow the other-acts...