People v. Roberson
| Citation | 423 N.W.2d 245,167 Mich.App. 501 |
| Decision Date | 31 May 1988 |
| Docket Number | Docket No. 90754 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Donald ROBERSON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph P. Kwiatkowski, Pros. Atty., and Thomas C. Johnson, Asst. Atty. Gen., for the People.
State Appellate Defender by Kim Robert Fawcett, for defendant-appellant on appeal.
Before WAHLS, P.J., and BEASLEY and BURRESS, * JJ.
On October 16, 1985, defendant Patrick Donald Roberson was convicted by a jury in the Cheboygan Circuit Court of the offenses of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). On December 12, 1985, defendant was sentenced to a mandatory two-year prison term for the felony-firearm conviction, and to from seven to twenty-five years for the armed robbery conviction. Those sentences were to be served consecutively. Defendant appeals his convictions and sentences as of right.
On May 21, 1985, at approximately 11:55 p.m., defendant entered a Clark gas station in Cheboygan, Michigan, just prior to closing and while the female attendant was counting the day's receipts. Defendant pointed a shotgun at her and demanded and was given the money. He then demanded more money from the station's safe. The attendant was unable to open the safe and convinced defendant of this fact only after demonstrating that each of her keys could not open the door. Defendant then made her toss the keys into a back room and ordered her to lie down next to them. Fearing she would be shot, she grabbed the gun and a struggle ensued following which the two stumbled out the door of the station and onto the pavement. Defendant repeatedly pushed the attendant's head into the cement in an effort to wrestle the gun away. Defendant himself finally let go and stomped on the gun which was lying across the attendant's chest, causing it to discharge. Defendant then retrieved the money and fled the station without the gun.
At trial, the attendant positively identified the defendant and the shotgun used during the robbery. In addition to testifying to the foregoing facts, the attendant testified she saw defendant's hand near the gun's trigger, but not actually on it, and that throughout most of the robbery the gun was held at knee level although it was pointed in the attendant's direction. Finally, the attendant testified that defendant's eyes were noticeably bloodshot, although she did not smell alcohol, and that defendant did not seem intoxicated to her.
A neighbor who lived behind the gas station testified that he observed a "loud" car idling in front of his house at approximately 11:45 p.m. on the night of the robbery. There were two occupants in the vehicle, one of whom got out and walked toward the station. That person soon returned and got back into the car. The two occupants then conversed for a short time before the same person got out of the car again and returned to the station. A couple of minutes later the witness heard a gunshot and saw that same person running toward the car, which sped away after he got in. During the time the car was parked in front of his home, the witness had a view of the person's stature and clothing. The person was observed running and did not appear to be under the influence to the witness.
A second neighbor observed a suspicious older model blue car with a noisy muffler around midnight on the night of the robbery. A few minutes later, he saw the young man slam the trunk of the car and get into the vehicle which then sped away.
Officers from the Cheboygan Police Department were dispatched to the scene of the robbery. Descriptions of the defendant and the vehicle were broadcast over the police radio after the witnesses were interviewed. An officer from the Tuscarora Township Police Department heard the broadcast and subsequently located the suspect vehicle in the vicinity of Indian River, Michigan. Backup assistance was called. Thereafter, with the assistance of two state police troopers, the suspect vehicle was stopped after it drove down a dead-end street in the village of Wolverine. Defendant was arrested.
The troopers testified that defendant did not appear to be intoxicated, did not have any trouble walking (even backward), and his actions were very deliberate. He was described as defiant and uncooperative. The other officer also testified that the defendant did not appear to be intoxicated.
The third state trooper who encountered defendant at the state police post after his arrest testified that defendant had a slight odor of alcohol but did not appear to be intoxicated.
The following morning the suspect's vehicle was searched and two partial rolls of coins were recovered. Also, defendant's clothes were confiscated as they matched the description given by the attendant. Both the coins and clothing were admitted into evidence at trial.
Defendant moved for a directed verdict following the close of the prosecution's case-in-chief, arguing that the proofs did not establish that the defendant had the requisite intent and present ability to injure, or the intent to permanently deprive the attendant of something of value. That motion was denied.
In his reserved opening statement, defense counsel theorized that defendant's alcohol intake prevented him from forming the specific intent to commit armed robbery.
Eileen Jorgensen testified that defendant and her son, Casey, were at her house from 11:00 p.m. to 11:20 p.m. on May 21, 1985. She believed they had been drinking. She could smell alcohol on defendant and he talked very fast (which he did not normally do). On cross-examination, she stated that defendant was not falling-down drunk, did not stagger or pass out, and was able to carry on a sensible conversation.
Dr. Russell Wood, a clinical psychologist and director of Harbor Hall (a residential substance abuse clinic in Petoskey, Michigan) testified that defendant had received treatment in the past for approximately seven months. On cross-examination, the prosecutor questioned Wood about the type of patients the clinic received and elicited the response that a majority of the patients referred were prior felons. Defense counsel objected to this questioning on the ground that it was improper since, prior to trial, the judge had ruled that defendant's prior arrests or convictions could not be used except for impeachment purposes. The prosecutor withdrew the question conceding that it was unimportant.
Dr. Charles Laufer, a consultant who treated defendant during his stay at Harbor Hall, diagnosed defendant as having a borderline personality disorder and as being an alcoholic. Laufer gave extensive testimony regarding the implications and behavior patterns associated with alcoholism. When defense counsel asked Laufer about an alcoholic's ability to form a specific intent, the prosecutor objected, stating that the answer would embrace an ultimate issue for the jury. The objection was overruled. The question was again posed to Laufer who stated that it was not for him to decide whether defendant had the specific intent (apparently he too was under the misconception that the evidence rules did not allow such testimony). Laufer then gave an opinion about alcoholics in general without referring to defendant in particular.
Following cross-examination of Laufer, and outside the presence of the jury, the court explained its prior ruling and offered to clarify the law in an instruction to the jury. Both counsel agreed that such instruction would suffice. Laufer was not again requested to opine as to defendant's ability to form the requisite specific intent.
The prosecutor called rebuttal witness Jay Geyer who had been with defendant until approximately 10:00 p.m. on the night of the robbery. Geyer said that defendant had been drinking but he was not so drunk as to have difficulty moving around.
During closing argument, the prosecutor argued that defendant's intoxication defense was without foundation because of the planning and execution of the robbery and because there was no physical appearance of intoxication. During rebuttal argument, the prosecutor stated, "I submit to you that at one point in time, when he told the victim to lie down, that he certainly wasn't going to leave any eyewitness behind--." At that point, defense counsel objected. The court permitted the argument for the reason that there was evidence at trial upon which to base it.
Over objection the trial judge instructed the jury regarding a defendant's election not to testify (CJI 3:1:06). The trial court indicated its belief that the instruction was mandatory when the defendant elected not to take the witness stand.
After deliberating for about forty minutes, the jury returned its verdict finding defendant guilty of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2).
At defendant's sentencing hearing held on December 12, 1985, defense counsel alleged that two offense variables on defendant's sentencing information report had been misscored. First, counsel argued that the probation agent had erroneously scored defendant as though he was a leader in a multi-offender situation instead of being an equal participant. Second, counsel asserted that the agent also erred in assessing points based upon bodily injury inflicted on the victim because there was no indication of such in the record. The court agreed with the probation agent's scoring, ruling that defendant was the leader and that the gas station attendant had been touched beyond that needed to commit the offense.
Defense counsel also argued that defendant's intoxication should serve to mitigate the severity of the offense...
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