People v. Leverette

112 Mich. App. 142 (1982) 315 N.W.2d 876

PEOPLE
v.
LEVERETTE.

Docket No. 50523.

Michigan Court of Appeals.

Decided January 5, 1982.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.

Ronald A. Molter, for defendant on appeal.

Before: BRONSON, P.J., and R.M. MAHER and F.X. O'BRIEN,^[*] JJ.

BRONSON, P.J.

Defendant was convicted of unarmed robbery contrary to MCL 750.530; MSA 28.798, and unlawfully driving away an automobile (UDAA), in violation of MCL 750.413; MSA 28.645,^[1] following a jury trial in the Detroit Recorder's Court. Defendant was sentenced to concurrent terms of from 3 to 5 years for UDAA and from 3 to 15 years for the robbery. He now appeals as of right.

The complaining witness, Linda Bridges, testified that on September 20, 1979, she was driving her 1977 Thunderbird when she pulled into a parking lot at Six Mile and Meyers in Detroit. She stated that she locked her car, which contained a purse, a diamond ring, a checkbook, credit cards, and approximately $25, and went to mail a letter. Upon her return, however, the vehicle was unlocked. Before she could close the door, defendant approached her with a gun. He told Ms. Bridges to exit from the vehicle. She tried to close the door but failed. After a brief struggle, defendant was able to pull her out of the car, get into the vehicle himself, and drive away.

Defendant's testimony was somewhat different than complainant's and substantially consistent with previous statements he had given to the police. Defendant indicated that he had been in a record store in the Six Mile-Meyers area when he observed an unoccupied 1977 Thunderbird with its motor running. Thereafter, he jumped into the car, heard a woman scream, and took off. Defendant specifically denied threatening anybody with a gun or struggling with anyone.

Defendant was arrested about one hour after the incident. The police obtained a description of the stolen vehicle and followed defendant to his house. He generally matched the description of the thief given by Ms. Bridges and was arrested.

Among his several claims, defendant contends that on the facts of this case convictions for both UDAA and robbery violates his constitutional right to be free from double jeopardy. We agree.

Where, on the facts of a particular case, the jury must necessarily find a defendant guilty of the lesser offense in order to convict him of the greater, it is not consonant with the prohibition against double jeopardy to permit convictions for both the greater and the lesser offense. People v Cook, 236 Mich. 333; 210 N.W. 296 (1926), People v Martin, 398 Mich. 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich. 540; 256 NW2d 31 (1977), People v Jankowski, 408 Mich. 79; 289 NW2d 674 (1980). Where the object of the taking is an automobile and robbery is the charged offense, UDAA is a lesser cognate offense which the trial court must instruct upon if it is requested by the defense. People v Harris, 82 Mich. App. 135; 266 NW2d 477 (1978). Jankowski clearly establishes that a defendant may not be convicted of the most serious crime and also lesser cognate offenses based upon one illegal taking.

The prosecution on appeal argues, however, that this case involves two distinct crimes and thus is not controlled by Jankowski and its predecessors. The prosecution notes that the information filed in this matter alleged that items other than the automobile were taken from the victim. The prosecution contends that these other items constitute the basis of the robbery charge, while the automobile is the basis for the UDAA conviction. We disagree that two distinct crimes were proven on the facts of this case.

The prosecution's argument focuses solely on the separate items of property taken and not defendant's criminal behavior or his intent. We believe that the references in Jankowski to a "single act" and a "single taking" allude to a single criminal transaction in which defendant's act manifests a single criminal intent. Acceptance of the prosecution's argument would lead to absurd results. For instance, one taking in which a watch with a value of $250 and a $10 bill were stolen could result in convictions of larceny over $100 and larceny under $100 by making the watch and the federal reserve note the basis of two separate counts in the information. Similarly, if a defendant robbed his victim of a wallet containing 50 credit cards, under the prosecution's argument 50 counts of armed robbery could be properly charged.^[2]

In the instant case, there was no break in time or any significant intervening circumstances between the taking of the car and the purse. Indeed, it was a mere fortuity that the purse, containing the other items, happened to be in the vehicle at the time of the taking. Defendant committed one criminal act manifesting one criminal intention. Under Jankowski separate convictions and punishments would violate the prohibition against double jeopardy.

Generally, where a defendant is convicted of both a greater and a lesser offense, the remedy is to vacate the conviction on the lesser offense and affirm the conviction on the greater offense. See People v Grable, 95 Mich. App. 20; 289 NW2d 871 (1980), People v Hale (On Remand), 103 Mich. App. 273; 303 NW2d 17 (1981). In this case, however, another error precludes utilizing the usual remedy.

We agree with defendant's contention that the prosecutor's rebuttal argument constituted an improper appeal to the jurors' civic duty and fears. A civic duty argument is impermissible because it injects into the trial issues beyond the guilt or innocence of the defendant and encourages the jurors to convict based on some societal obligation apart from the evidence adduced. See, for instance, People v Wright (On Remand), 99 Mich. App. 801, 809; 298 NW2d 857 (1980), lv den 410 Mich. 854 (1980).

In this case the prosecutor stated:

"Ordinarily in presenting the facts of the case which is my job as the prosecutor to do, I can't just sit back and listen to the proofs and comment on the evidence as it comes out. But every now and then you get a little upset because here we've got a situation where you've got Mrs. Bridges, who's being attacked, her credibility, her story, the manner in which she's describing the act. She didn't ask to have her car stolen that day.

"On the other hand, you have a person who's charged with a crime who admits to taking the car and then the argument that he's a person who is not used to being questioned by police officers. So when he admits to something in the police station, let's give him a break, okay? After a while you hear this for a little while and it gets you a little upset because who's supposed to get a break; the criminal or the victim in our society? This isn't a game where you're weighing things on scales. If you listen to defense counsel's version, if you ever had a crime where there were no people as witnesses around, the defendant should automatically go free, because it's a one-on-one situation, and that's not the law ladies and gentlemen. That can't possibly be the law. Does she mean to say that if you're out in the street and there's no witnesses — "

At this point an objection was interposed but was overruled by the trial court. Thereafter, the prosecutor continued:

"If you were out on the street and there's no witnesses around and someone comes up and commits a crime against you, are we to say then that we cannot bring prosecution against that person that committed the crime when that person gets on the stand and admits, `yes, I was there, but you've only got one witness, the victim, so you can't convict me because there's only one witness.' Block the scales. That is not the law ladies and gentlemen; that is nonsense."

The prosecutor did not emphasize in his argument how defendant's testimony was unbelievable. Instead, the argument injected into the case the broader issue of the problem of crime. The prosecutor's argument also implied that the jury should convict out of sympathy to the victim. Furthermore, the prosecutor in part argued from a hypothetical case putting the jurors in the position of the victim.^[3] Compare, People v Edward Villarreal, 100 Mich. App. 379, 392-393; 298 NW2d 738 (1980).

The harmless error standard applicable to this type of problem requires us to reverse if the error was so offensive to the maintenance of the judicial system that it can never be deemed harmless or if, in a trial free of the error, one juror might have voted to acquit. People v Swan, 56 Mich. App. 22, 31-33; 223 NW2d 346 (1974), lv den 395 Mich. 810 (1975).

We are not convinced that the prosecutor deliberately injected error into the proceedings. While arguments appealing to a jury's fears or indicating that a duty to convict exists have been condemned,^[4] the impermissible portion of the prosecutor's argument here was not so blatantly improper that we believe he intentionally injected error into the trial. Instead, it appears that he was merely caught up in the heat of battle. Thus, this case is distinguishable from Wright, supra, in which the prosecutor's argument concerning the effects of drug trafficking on the community had been squarely condemned in People v Gloria Williams, 65 Mich. App. 753; 238 NW2d 186 (1975).

In considering the likely effect of a prosecutor's argument on the verdict, the improper statements must be evaluated in light of their relationship to the evidence adduced at trial. Each case must be considered on its own facts. An improper argument harmless in one case may be reversible in another. See People v Cowell, 44 Mich. App. 623, 627-628; 205 NW2d 600 (1973).

In many cases, the argument made here would not warrant reversal.

In this case, however, the argument cannot be deemed harmless in respect to the robbery charge. The case turned on the jury's assessment of the defendant's and the victim's credibility. The trial was short; the evidence of guilt on the robbery charge was not overwhelming. Consequently, it is impossible for us to say that one juror would not have voted to acquit on the robbery charge but for the error.^[5] However, since defendant admitted driving off with the car without permission, the error in the argument cannot be deemed harmful in respect to the UDAA charge.^[6]

Our resolution of the argument issue allows us to formulate the following remedy in respect to the double jeopardy problem. Defendant's UDAA conviction can stand, and the unarmed robbery conviction is vacated. However, if the prosecution believes the interests of justice will best be served by retrying defendant for unarmed robbery, it may do so. If a reprosecution is brought, the jury must be instructed that its verdict may be guilty of unarmed robbery or guilty of UDAA, but not both.

We will briefly address the remainder of the issues raised by defendant in case the prosecution elects to try him again. None of the remaining issues would entitle defendant to a reversal of his conviction. However, other problems with the trial are apparent.

We agree with defendant that under the standards set forth in People v Kachar, 400 Mich. 78, 95-96; 252 NW2d 807 (1977), the complainant's incourt identification of defendant should not have been allowed. Prior to the preliminary examination, where the complainant identified defendant, she had incorrectly chosen a person other than defendant at a lineup as the thief. This incorrect identification was positively asserted. None of the other Kachar factors cut in favor of admitting the questionable identification. The prosecution bears the burden of showing by clear and convincing evidence that an unduly suggestive confrontation between the witness and the defendant did not taint the subsequent in-court identification. People v Richmond, 84 Mich. App. 178, 182; 269 NW2d 521 (1978). This burden was not satisfied in this case. The fact that the prior confrontation occurred at the preliminary examination does not per se mean it cannot be considered unduly suggestive. People v Solomon, 47 Mich. App. 208; 209 NW2d 257 (1973), (LESINSKI, C.J., dissenting), remanded for the reasons stated by the dissent 391 Mich. 767; 214 NW2d 60 (1974).

Solomon involved other indicia of undue suggestiveness not present here, namely, that the witness was told by the police that the man who robbed him was going to be in court and, in fact, defendant was the only person there who could possibly have been the culprit. Nonetheless, this factual difference is not dispositive. Solomon adopted a totality of the circumstances test in determining whether a preliminary examination confrontation is unduly suggestive. The factors identified as important by then Chief Judge T. JOHN LESINSKI in Solomon are included within the Kachar test. While Kachar actually was concerned with the problem of an independent basis for the identification following a suggestive identification procedure, the Kachar factors are equally applicable here where the problem of an unduly suggestive confrontation, itself, must be resolved in relationship to the totality of the circumstances. In some cases, such as this one, undue suggestiveness in the confrontation and an independent basis for the identification are inextricably intertwined. See People v Lyles, 100 Mich. App. 232, 245-247; 298 NW2d 713 (1980). In Lyles, while we referred separately to the Solomon and Kachar criteria, it is apparent that the Solomon factors merely consist of two of the Kachar factors.

Despite the foregoing, the error was harmless beyond a reasonable doubt.^[7] Defendant admitted that he took the car, and there was substantial circumstantial evidence implicating him as the thief.

Defendant next argues that two series of questions, one put to him and one to his mother, insinuated that he committed the crime because he was unemployed and poor. These questions were not objected to during trial. Some of the questions were arguably relevant to show that defendant had indeed robbed the victim of some money. The complainant stated that she had about $25 in her purse at the time of the robbery. Defendant was arrested with $200 on his person. He testified that he had cashed a disability check for $180 from Ford Motor Company on the day of the incident. Thus, from the line of questions asked, the jury could infer that the extra money was obtained from the victim.^[8]People v Stanton, 97 Mich. App. 453, 460; 296 NW2d 70 (1980).

Other questions asked by the prosecutor were clearly immaterial. For instance, defendant's mother was asked if her son paid room and board. To the extent that the questions were improper, we are convinced that they did not result in manifest injustice. See People v Smith, 80 Mich. App. 106, 114-117; 263 NW2d 306 (1977), lv den 406 Mich. 920; 275 NW2d 259 (1979). The prosecutor did not argue that the theft was committed for economic reasons. Furthermore, it is clear that on the day of the theft defendant did enjoy a legitimate source of income.

Defendant next asserts that the following instruction tended to coerce a guilty verdict on the greater offense:

"Now I'm going to instruct you on a lesser included offense, which is not one of the principle charges. The two charges in this case are unlawfully driving away an automobile and also robbery armed. However, I'm going to give you an instruction on a third offense. It is not charged, but it is a lesser included offense that you can consider after consideration of the principle charges. This charge is unarmed robbery."

It constitutes reversible error to give an order of consideration instruction which suggests that the jurors must find a defendant innocent or not guilty of a greater offense before turning their deliberations to lesser offenses. People v Hurst, 396 Mich. 1, 10; 238 NW2d 6 (1976), People v Mays, 407 Mich. 619; 288 NW2d 207 (1980). In this case, however, nothing in the court's charge suggested a verdict actually had to be reached on the greater offenses before consideration of the lesser offense.^[9] We further note that, in fact, defendant was convicted of the lesser offense of unarmed robbery instead of the greater charged offense of armed robbery.

Defendant finally contends that the prosecutor argued facts not in evidence in closing. We disagree. The prosecutor's argument was limited to the facts and fair inferences to be drawn from the facts.

Defendant's conviction for UDAA is affirmed. Defendant's conviction for unarmed robbery is reversed. Upon remand, the prosecution may elect to retry defendant for unarmed robbery and UDAA. However, in this instance, the jury must be instructed that a guilty verdict on one charge constitutes an acquittal on the other.^[10]

Affirmed in part, reversed in part and remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Defendant was originally charged with UDAA or, in the alternative, receiving and concealing stolen property with a value in excess of $100 in contravention of MCL 750.535; MSA 28.803. Following an oral motion by the prosecutor at the close of the preliminary examination, defendant was also bound over on a charge of armed robbery. MCL 750.529; MSA 28.797. Before the case was submitted to the jury, the receiving and concealing count was dropped. Defendant argues on appeal that the magistrate erred in granting the prosecution's motion to add a count of armed robbery. Since the objection to the added count was not renewed before the trial court, any defect in the proceedings before the magistrate was waived. People v Jones, 75 Mich. App. 261, 268; 254 NW2d 863 (1977), lv den 402 Mich. 822 (1977). In any case, an examining magistrate is empowered to add a count not originally charged in the absence of unfair surprise to defendant. People v Mathis (On Remand), 75 Mich. App. 320, 329, 326; 255 NW2d 214 (1977). There was no unfair surprise here.

[2] Even were we to accept that one act resulting in the theft of several items could constitute multiple offenses, there would still be a double jeopardy problem in this case. The court charged:

"It is the prosecution's theory in this case that on or about September 20, 1979 that 17150 Meyers, in the City of Detroit on a Thursday, that the defendant Rickey Leverette approached the complainant Linda Bridges in the parking lot and at gunpoint ordered her out of the car. The defendant Rickey Leverette then took the car, drove north onto Meyers to Santa Maria, then turned right.

"Now if you find that the people have established their theory, you must find the defendant guilty of count I, unlawfully driving away an automobile, and count II, robbery armed."

The court's instruction, which apparently was submitted by the prosecutor as his theory of the case, specifically told the jury that the theft of the car was the basis of both counts. Thus, the jury did, in fact, return the multiple guilty verdicts based on the theft of but one item. Moreover, trial on the theft of the other stolen items would now be barred by the Michigan doctrine of transactional double jeopardy. People v White, 390 Mich. 245; 212 NW2d 222 (1973).

[3] Later in his argument the prosecutor again made statements associating the jurors as victims when he stated, "I don't know how many of you have ever been mugged, or attacked or held up at gunpoint * * *."

[4] Villarreal, supra, People v Biondo, 76 Mich. App. 155, 159-160; 256 NW2d 60 (1977), lv den 402 Mich. 835 (1977).

[5] The tenor of the prosecutor's argument suggests that in part he was legitimately rebutting the defense counsel's argument. However, this is not really the case. Defense counsel did not argue that defendant could not be convicted of robbery because the complainant was the only witness. Rather, she specifically suggested that defendant's story was more credible concerning how the taking occurred. She never indicated that defendant should be given a "break". Her argument was entirely proper and related to the evidence. As such, it did not give the prosecution the right to respond with an improper rebuttal argument.

[6] We question the extent to which the present day jury is actually likely to be swayed by a prosecutor's comments. At one time it was probably true that juries routinely gave greater weight to a prosecutor's statements because he acts with the imprimatur of the state. We believe, however, that in post-Viet Nam, post-Watergate American society the average juror is not so easily swayed by the statements of public officials. This is not to say that occasionally juries are not impressed with the prosecutor's position and thus give undue weight to his argument. It seems to us that problems with prosecutorial arguments could be handled by explicit instructions from the trial court. Prior to the arguments the court could state that the attorneys are given free rein to say what they want to but that these arguments are not evidence, should be treated with skepticism, and represent the individual attorney's view of the case. In the case of a particularly strong argument, these warnings could be repeated. However, the sweeping change of the variety suggested here would require a reappraisal of prosecution arguments by the Michigan Supreme Court. Although counsel in this case objected to the argument, no cautionary instruction was given, nor were specific, explicit warnings about closing arguments of the type suggested here given.

[7] Although it is rarely articulated in the opinions of this Court, the harmless beyond a reasonable doubt standard propounded in Chapman v California, 386 U.S. 18; 87 S. Ct. 824; 17 L. Ed. 2d 705 (1967), relating to fundamental constitutional errors, seems to require more than merely ascertaining if, but for the error, one juror might have voted to acquit. Instead, the relevant inquiry is whether there is a reasonable possibility that the erroneously admitted evidence contributed to the guilty verdict.

[8] At the same time, however, since defendant admitted removing money from the purse — which he claimed was merely lying on the car seat when he took the car — it is difficult to see how the source of the money was material in this case.

[9] Although we do not believe the instruction was erroneous, we also believe that it would be preferable if the trial court explicitly indicated that the jurors need not reach an agreement on the greater charge before considering any lesser offenses. See Mays, supra, 623, fn 1.

[10] Although we found no error requiring reversal in respect to the UDAA conviction, if defendant is retried for unarmed robbery, his UDAA conviction is vacated. It would be unfair to require defendant to have his case submitted only on the unarmed robbery charge. On the facts of this case, the jury is unlikely to want to acquit defendant entirely. If UDAA is not offered as a possible verdict, it is inherently likely that the jury would convict defendant of robbery even if it really believed his story concerning what happened.