People v. Smedley

• Decision Date: 06 December 1971
• Docket Number: Docket No. 9546,No. 2,2
• Citation: People v. Smedley, 194 N.W.2d 383, 37 Mich.App. 325 (Mich. App. 1971)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. King George SMEDLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 383

194 N.W.2d 383

37 Mich.App. 325

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. King George SMEDLEY, Defendant-Appellant.

Docket No. 9546.

Court of Appeals of Michigan, Division No. 2.

Dec. 6, 1971.

Released for Publication Feb. 29, 1972.

Erwin A. Salisbury, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

The defendant was convicted by a jury of the crime of robbery armed, M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797), and sentenced to serve a period of 10 to 25 years in prison.

The events which led up to the commission of this crime began at about 10:00 P.M. on April 9, 1968, when Gary Lapides, an undercover police officer in the City of Ann Arbor, called at the defendant's apartment at 337 East Jefferson in Ann Arbor and purchased some narcotics. Lapides left immediately, returned to his own apartment, and enlisted the assistance of one Wendell Munn, his roommate and fellow officer. They returned to defendant's apartment and were able to gain admittance, only to be confronted by a pistol in the hands of the defendant.

Both officers were searched, and Munn was relieved of a revolver and a book which contained the names and addresses of narcotic pushers, users and other vital information. The people in the room, including the defendant, suspected that the two officers were narcotics agents and questioned them for some 45 minutes.

It was decided that the narcotics, sold by the defendant, would have to be retrieved. Thereupon, a plan was entered into by defendant and the others, whereby Officer Lapides would be escorted to his apartment while Munn would be held as a captive until they returned with the goods. It was the understanding that, if Lapides and his escort did not return within 45 minutes, Munn would be killed. Fortunately, they were able to complete the mission within the allotted time.

The room was cleared of narcotics at the suggestion of the defendant; however, in the meantime, a wallet containing $32.00 was taken from Lapides. Neither the wallet nor the money was returned to the owner.

There was some discussion about killing the officers; however, the defendant decided that as long as they had no evidence about narcotics, it would be safe to let them go.

When the officers were about to be released, Lapides was asked if he had everything. He replied that he did not have his wallet. At this point defendant thrust the pistol towards the officer and said, 'What?' Lapides replied 'never mind' and left the apartment with Munn, in order to secure other assistance.

The defendant was charged with two counts of kidnapping and two counts of armed robbery. Prior to trial, the defendant filed notice of the defense of insanity, M.C.L.A. § 768.20 (Stat.Ann.1954 Rev. § 28.1043). A sanity hearing was ordered by the trial judge and the defendant was adjudged to be incompetent to stand trial. He was committed to the Center for Forensic Psychiatry at Ionia State Hospital for psychiatric evaluation. On January 14, 1970, the trial court found the defendant was then mentally competent and able to stand trial. At the trial, defendant not only denied committing the charged crime, but also raised the defense of insanity.

I. DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY WHICH WOULD TEND TO INDICATE THAT THE DEFENDANT HAD COMMITTED CRIMES OTHER THAN THE ONE CHARGED?

M.C.L.A. § 768.27 (Stat.Ann.1954 Rev. § 28.1050) provides:

'In any criminal case where the defendant's motive, intent, the absence of, mistake, or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

Michigan law is replete with cases that have attempted to interpret exactly what this statute intends; that is, exactly how much latitude the trial court may, in its discretion, allow in the testimony of witnesses as to other crimes committed by the defendant. In People v. Seaman (1895), 107 Mich. 348, 358, 359, 65 N.W. 203, 206, the Court propounded what has become the classic statement of what other crimes may be testified to to show a felonious intent:

'It is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.'

Further interpretations by the Court have been in the same vein. In People v. Savage (1923), 225 Mich. 84, 86, 195 N.Y. 669, the Court said:

'It is elementary that the acts, conduct and demeanor of a person charged with a crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the Res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime.'

The trial judge, in his discretion, should find the evidence to be relevant and that its probative value outweighs its potential prejudicial effect to the defendant. If such a finding is made, the evidence is admissible. People v. Shaw (1968), 9 Mich.App. 558, 157 N.W.2d 811; People v. Flansburgh (1970), 24 Mich.App. 470, 180 N.W.2d 373; People v. Burton (1970), 28 Mich.App. 253, 184 N.W.2d 336; People v. Kowatch (1932), 258 Mich. 630, 242 N.W. 791; People v. Andriacci (1968), 11 Mich.App. 482, 161 N.W.2d 435; People v. Henderson (1970), 25 Mich.App. 28, 180 N.W.2d 903; and People v. McClure (1971), 29 Mich.App. 361, 185 N.W.2d 426.

An examination of the trial transcript, in light of the above authorities, indicates that the other crimes testified to by the officers would clearly fall within the Res gestae.

Only one item might border upon error; that is the reference in five or six lines to the narcotics. However, any possible prejudice, not only by this evidence, but the other crimes as well, was extinguished by the excellent charge of the trial judge:

'There has been some testimony that might lead the Jury to believe that the defendant has committed some other offenses, some other types of offense. The Court would instruct you now that you are to disregard any testimony of this nature so far as it might tend to show that the defendant did or did not commit the offense with which he is charged. He is only being charged in this case with Armed Robbery. So, this is only up to the jury to determine whether he is guilty or not guilty, or not guilty by reason of insanity of Armed Robbery. The mere fact that some evidence, some other possible offense might have been introduced, does not mean that you can take that into account in determining whether the defendant is guilty of this offense, the offense which he is charged with, the offense of Armed Robbery.'

II. DID THE EVIDENCE PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT POSSESSED THE NECESSARY INTENT TO COMMIT ROBBERY ARMED?

The law is well settled that one who 'procures, counsels, aids or abets' in the commission of a crime may be prosecuted as a principal. M.C.L.A. § 767.39 (Stat.Ann.1954 Rev. § 28.979); People v. Smith (1935), 271 Mich. 553, 260 N.W. 911; People v. Miniear (1967), 8 Mich.App. 591, 155 N.W.2d 222.

The essential elements of robbery armed as set forth in the statute, M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797), are: (1) An assault by the defendant upon the complainant; (2) a felonious taking of any property, which may be the subject of a larceny, from complainant's person or in his presence; and (3) that the defendant was armed with a dangerous weapon.

The defendant insists that he did not know that the wallet would be taken away and not returned. This argument, as to the lack of intent, is without merit. He held a gun on the officers, which would constitute an assault; there was a felonious taking of the property; and defendant was aware of the fact that the wallet and money had not been returned.

A review of the record indicates that all of the necessary elements were present, and that proper instructions concerning the same were given to the jury by the trial judge. Accordingly, the jury was justified in finding the defendant guilty of such an offense. People v. Poplar (1969), 20 Mich.App. 132, 173 N.W.2d 732; People v. Lloyd (1967), 5 Mich.App. 717, 147 N.W.2d 740; People v. Thomas (1967), 7 Mich.App. 103, 151 N.W.2d 186.

III. WAS THE QUESTION OF SANITY PROPERLY SUBMITTED TO THE JURY?

The a clear understanding of this issue, it is necessary to place the facts in the proper perspective.

The episode ran from 10:00 P.M. until 5:15 in the morning. During this time, the defendant sold certain narcotics to Officer Lapides, only to learn later that he was a policeman. He knew that, upon conviction for the narcotics sale, he...