People v. Turner

• Decision Date: 06 January 1983
• Docket Number: 54521,Docket Nos. 53627
• Citation: 328 N.W.2d 5,120 Mich.App. 23
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dana Andrew TURNER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patricia TURNER, Defendant-Appellant. 120 Mich.App. 23, 328 N.W.2d 5
• Court: Court of Appeal of Michigan — District of US

Page 5

328 N.W.2d 5

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dana Andrew TURNER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patricia TURNER, Defendant-Appellant.

Docket Nos. 53627, 54521.

120 Mich.App. 23, 328 N.W.2d 5

Court of Appeals of Michigan.

Submitted May 4, 1982.

Decided Oct. 5, 1982.

Rehearing Denied Nov. 23, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 26] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief, Appellate Asst. Pros. Atty., and Nancy R. Alberts, Asst. Pros. Atty., for the People.

State Appellate Defender by Gail Rodwan, Detroit, for defendants-appellants.

Before KELLY, P.J., and T.M. BURNS and MacKENZIE, JJ.

BURNS, Judge.

Defendants were convicted after a jury trial on June 3, 1980, along with Joe Leandrew Davis, of armed robbery contrary to M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant Dana Turner was also convicted of felony-firearm, contrary to M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He received consecutive terms of from 6 to 15 years and 2 years imprisonment. Patricia Turner received a [120 MICHAPP 27] term of from 2 to 6 years imprisonment. Both appeal as of right.

In the early morning hours of February 14, 1980, Dana Turner robbed a Total Petroleum gas station attendant in Livonia. He escaped on foot but was captured within the hour in a car driven by Davis. Patricia Turner sat in the car's passenger's side.

Defendant Patricia Turner first argues that the evidence against her was insufficient to convict her of armed robbery. The only evidence presented against her was that she was in the passenger's side of the getaway car after the robbery had occurred and that the money taken in the robbery was later found inside Patricia Turner's bra.

To convict a defendant of a crime as an aider and abettor, the prosecutor need only prove that defendant performed an act that aided in the circumstances or participated in the criminal enterprise. People v. Pitts, 84 Mich.App. 656, 270 N.W.2d 482 (1978). However, the prosecutor must show that the defendant had the actual specific intent to aid in the crime or knew that the principal had the required intent. People v. Rigsby, 92 Mich.App. 95, 284 N.W.2d 499 (1979). Mere presence or knowledge is insufficient. People v. Burrel, 253 Mich. 321, 235 N.W. 170 (1931).

Patricia Turner contends that the evidence shows at most that she was guilty of being an accessory after the fact (M.C.L. Sec. 750.505; M.S.A. Sec. 28.773), and not an aider and abettor. While an aider and abettor is now prosecuted as if a principal (M.C.L. Sec. 767.39; M.S.A. Sec. 28.979), an accessory after the fact is not:

"An 'accessory after the fact', at common law, according to Professor Perkins, is 'one who, with knowledge of [120 MICHAPP 28] the other's guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment'. No case decided by this Court has construed the aiding and abetting statute to include accessories after the fact." People v. Lucas, 402 Mich. 302, 304-305, 262 N.W.2d 662, 663 (1978) (Footnote omitted.)

Patricia Turner argues that the crime of robbery was completed before she participated in the escape because all of the elements, including asportation, were completed. She claims that the prosecution confused the escape with the asportation element and so concluded that the robbery was incomplete until the escape had been perfected.

We agree that a completed escape is unnecessary to constitute asportation. "Any movement of goods, even if by the victim under the direction of defendant * * * constitutes asportation * * *." People v. McGuire, 39 Mich.App. 308, 314, 197 N.W.2d 469 (1972). See also People v. Alexander 17 Mich.App. 30, 169 N.W.2d 190 (1969); People v. Brightwell, 114 Cal.App.3d 280, 170 Cal.Rptr. 473 (1980). However, robbery is also a continuous offense: it is not complete until the perpetrators reach temporary safety. People v. Clark, 113 Mich.App. 477, 317 N.W.2d 664 (1982); People v. Salas, 7 Cal.3d 812, 103 Cal.Rptr. 431, 500 P.2d 7 (1972). As such, while the essential elements were completed, the offense continued during the escape. The evidence is, therefore, sufficient to convict Patricia Turner of armed robbery as an aider and abettor because she helped hide the money during the escape.

This same conclusion was reached in People v. Jardine, 116 Cal.App.3d 907, 172 Cal.Rptr. 408 (1981). There, the defendant argued that he was an accessory after the fact because he had merely driven the getaway car and had not known beforehand[120 MICHAPP 29] or even during the crime that a robbery was about to occur or was occurring. The Court countered: "Since a robbery is a continuing crime which is not completed until the robbers reach a place of temporary safety, Rucker's assistance in the escape was necessarily a participation in the robbery". 116 Cal.App.3d 920, 172 Cal.Rptr. 414.

Superficially this reasoning seems to be contradictory. On the one hand, a criminal is guilty of a completed robbery and not merely of an attempt if he moves the stolen goods a short distance. Alexander, supra. On the other hand, the crime is continuous and not completed until the parties have reached temporary safety. Thus, a person who aids during an escape is guilty as an aider and abettor although the crime has apparently concluded. Although these two legal principles may seem to create a double-edged sword, they do not. Just because a completed escape is not a necessary element of the offense does not preclude it from being a part of it. See People v. Price, 25 Cal.App.3d 576, 102 Cal.Rptr. 71 (1972).

Both defendants argue that the trial judge improperly permitted impeachment with evidence not revealed pursuant to a pretrial discovery order. The prosecutor was ordered to supply "a fully complete list of all items confiscated from the scene of the alleged crime, from any of the defendants' possession or in possession of investigative--or in the process of investigating the alleged crime". The prosecutor did not list bullets found in Patricia Turner's purse after her arrest. Because such an omission violated the discovery order, the trial judge suppressed the bullets for use in the prosecutor's case in chief. However, the court did [120 MICHAPP 30] allow the prosecutor to use them for impeachment purposes should any of the defendants testify. Because of this ruling all three defendants chose not to testify although all had indicated their intentions to do so in opening statements.

Although the prosecution does not contend that the discovery order was not violated, it claims that the trial judge did not err in admitting the evidence for impeachment purposes. At this time, Michigan courts are apparently split on whether or not such evidence should be admitted for impeachment. In People v. Lynn, 91 Mich.App. 117, 283 N.W.2d 664 (1979), aff'd 411 Mich. 291, 307 N.W.2d 61 (1981), this Court refused to reverse even though the defendant was impeached with a statement not made available to him despite a discovery order. On the other hand, this Court did reverse in People v. Pace, 102 Mich.App. 522, 302 N.W.2d 216 (1980). There, not only was the discovery order violated by the failure to disclose an out-of-court statement, but the prosecutor failed to inform either the trial judge or the defendant that the statement existed until it was actually used to impeach the defendant. This Court noted:

"In light of the discovery order, defense counsel had a right to rely on his belief that defendant had made no other statements to the police besides those disclosed which might cast doubts on defendant's version of the events in question.

* * *

"As a matter of trial strategy, defense counsel might have advised his client not to testify had he been aware of the statements. Assuming that defendant would have testified anyway, some strategy for minimizing their impact might have been adopted." Pace, p. 531, 302 N.W.2d 216.

The prosecution attempts to distinguish Pace in [120 MICHAPP 31] several ways. First, the discovery order in Pace specified that any evidence not turned over pursuant to the order would be suppressed for either the prosecutor's case in chief or for impeachment. The present discovery order did not contain such a clause. However, this distinction is irrelevant; the clause was not considered in the Pace analysis.

The prosecutor next contends that the trial judge in Pace did not suppress until after the prosecutor had attempted to impeach the defendant. In the present case, the trial judge suppressed the evidence before any of the defendants could testify. Therefore, defendants were given the opportunity to reassess their decisions to testify. This distinction is likewise irrelevant. Defendants were equally surprised here because each defendant stated in opening statement that he or she would testify. The prosecutor's failure to produce the evidence did not come to light until after the opening statements. Defendants should not be forced to change their strategy midway through the trial: "The defense had every right to rely fully upon the prosecution's answer. This right of reliance extended throughout the trial". State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641, 647 (1973). Furthermore, the jury could not help but to have noticed that defendants did not in fact testify as promised.

The prosecutor argues that despite this reliance and unfair surprise, such evidence should be allowed in for impeachment to prevent the defendants from lying under the protection of the discovery order exclusion. In United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the [120 MICHAPP 32] Supreme Court permitted impeachment with evidence...