PEOPLE
v.
JONES
Docket No. 54716.
Michigan Court of Appeals.
Decided July 14, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Nora J. Pasman and John Nussbaumer, Assistants State Appellate Defender, for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and V.J. BRENNAN and R.L. TAHVONEN,[*] JJ.
PER CURIAM.
Gwendolyn Marie Jones was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). She was sentenced to a term of from 2 to 15 years for armed robbery and 2 years for felony-firearm, the two sentences to run consecutively. Defendant appeals as of right.
Defendant was tried jointly with Donald Haines for their alleged participation, along with James *167 Woodward and Raymond Grant, in the armed robbery of a Livonia Kentucky Fried Chicken store on May 26, 1980. All four individuals were arrested approximately five minutes after the robbery while riding together in an automobile approximately 2-1/2 miles from the scene. Codefendant Haines was driving, defendant Jones was riding in the front passenger seat, and Woodward and Grant were riding in the back seat. The police found a large sum of money taken from the Kentucky Fried Chicken store in Grant's pocket, a box of chicken in the car, and the gun used by Grant to commit the robbery in defendant Jones's waistband. The employees of the store testified at trial that Grant entered the store alone, robbed them at gunpoint, and left on foot with the money and a box of chicken. The employees never saw any of the other defendants or their automobile.
Charges against Woodward were dismissed at a preliminary examination because of insufficient evidence. Grant pled guilty the day before trial and ultimately testified for the prosecution. Grant testified that all four of the people in the automobile were in on the planning of the robbery and that they intended to split the proceeds four ways. This testimony contradicted Grant's original statement to the police, which he admitted making, in which he stated that the other three people in the car knew nothing about his plans to commit the robbery.
Defendant testified that the first time she saw the gun was when Grant passed it to her from the back seat of the car and asked her to hold it as the police were pulling them over. She testified that she first learned that a robbery had occurred when the police stopped them and she heard a broadcast on the police radio. She testified, also, that Grant *168 had asked them to stop at the Kentucky Fried Chicken store because he was hungry and that he went into the store alone. When he returned, he had only a box of chicken in his hands. She admitted having the gun when arrested, but denied any prior knowledge of, or having anything to do with, the robbery.
On appeal, defendant argues, first, that the trial court erred in allowing the prosecutor to cross-examine defendant, over objection, on her use of heroin and to introduce extrinsic evidence that the defendant had used heroin on one occasion a month or two before the robbery. The people argue the inquiry and subsequent extrinsic evidence were properly admitted in order to supply a motive for the crime and to attack defendant's credibility.
During the prosecutor's closing arguments, he argued that defendant had a heroin habit, needed money to buy heroin, and, therefore, participated in the robbery. Evidence of whether a defendant is a heroin addict at or near the time of a charged theft offense may be relevant and admissible as proof of motive. See MRE 404(b); MCL 768.27; MSA 28.1050; People v Talaga, 37 Mich. App. 100, 103; 194 NW2d 462 (1971). Evidence of heroin use, however, has a strong prejudicial effect. Thus, the legal relevance of heroin addiction to motive for a theft offense is dependent on two factors: (1) that defendant was addicted at or near the time of the offense and, therefore, compelled to obtain the drug, and (2) that defendant lacks sufficient income from legal sources to sustain his or her continuing need for heroin. See People v Walker, 86 Mich. App. 155, 159, fn 2; 272 NW2d 222 (1978). Without such a foundation, evidence of heroin use should be excluded from proof of motive, as its *169 prejudicial effect substantially outweighs its probative value. See MRE 403; Walker, supra, 160.
In the instant case, the prosecution failed to prove either of these two foundational factors. On cross-examination, defendant testified she had not used heroin for over five years. Following defendant's testimony, the prosecution called Anita Grant, who testified that she had seen defendant use heroin only once, one or two months before the robbery. The only evidence of defendant's heroin use, the testimony of defendant and Ms. Grant, did not establish defendant was a heroin addict nor that she lacked funds from legal sources to sustain any habit she did have. Thus, cross-examination of defendant on her previous heroin use and the testimony of Ms. Grant were more prejudicial than probative of motive.
In addition, Ms. Grant's testimony that she saw defendant use heroin once prior to the robbery was not admissible as evidence attacking the credibility of the defendant. Specific instances of conduct for the purpose of attacking credibility may not be proved by extrinsic evidence. MRE 608(b).
The prosecution's cross-examination of defendant on her previous heroin use, the introduction of Ms. Grant's specific act testimony, and the prosecution's use of such as substantive evidence of defendant's motive and guilt require reversal.
Our resolution of this initial issue makes full elaboration on the remaining issues unnecessary. We note, however, that error occurred when the trial court allowed the introduction of hearsay testimony, over objection, that the principal in the crime had stated during guilty plea proceedings that defendant had engaged with him in the planning of the armed robbery and that they were going to split up the proceeds. The testimony was *170 hearsay and no exception was applicable. Thus, the testimony was not admissible. MRE 802.
Error also occurred when the prosecution not only questioned defendant concerning her failure to make a statement at the time of her arrest, other than that she "didn't know anything about the robbery" but did possess the gun, but argued during closing argument that if defendant were telling the truth at trial she would have told her full story to the police at the time of her arrest. In People v Bobo, 390 Mich. 355; 212 NW2d 190 (1973), the Supreme Court ruled that in Michigan the prosecution may not use a defendant's silence against him. "The fact that a witness did not make a statement may be shown only to contradict his assertion that he did." Bobo, supra, 359. Defendant's failure to make a full statement at the time of her arrest was not inconsistent with any subsequent statements which she did make.
In addition, the trial court's specific instructions on felony-firearm were incorrect. The court instructed the elements to be:
"First, that the defendant committed or attempted to commit the crime of robbery armed, or attempt robbery armed either as the perpetrator or as an aider and abettor as that has been outlined and described to you under Count I.
"Second, that at the time they committed or attempted to commit that crime, they were knowingly carrying a firearm or knowingly they had a firearm in their possession, or in one of their possessions."
Defendant could not be found guilty of felony-firearm if she merely knew that the principal had a firearm in his possession at the time of the crime. Rather, "it must be established that the defendant procured, counselled, aided, or abetted and so assisted *171 in obtaining the proscribed possession, or in retaining such possession otherwise obtained". People v Johnson, 411 Mich. 50, 54; 303 NW2d 442 (1981).
Finally, we find no error in the trial court's instructions to the jury after it announced that it was deadlocked.
Reversed and remanded for a new trial.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.