*1 96 PEOPLE v CARTER 4, 1979, September Docket No. 77-5039. Submitted at Detroit. De 21, 1980. April applied appeal cided Leave to forv Carter, Defendant, Chauncey was convicted of her oin, carrying in the Detroit, Boyle, J. Recorder’s Court Patricia J. At defendant’s examination, preliminary officer Ronald Smith of the Detroit Department night question Police testified that on the he patrol was on in the Gladstone routine area of and Woodrow police Wilson in Three Detroit. other officers were with Officer police approached Smith in his semimarked car. As the car Gladstone, away walking Officer Smith saw defendant apartment building from the at that address. When defendant sidewalk, police reached the he looked in direction of the car, apartment building. turned around and ran toward the building Officer Smith followed. When defendant reached the opened foyer he the door entered a area. As the door defendant, closing behind Officer Smith saw him throw down plastic bag. picked up bag officer and saw that it suspected contained a substance brown was heroin. placed Defendant was under arrest. Officer James con Irons patdown ducted a search of and took defendant a .25-caliber pistol loaded automatic from defendant’s waistband. Officer rapes Smith also testified there had been numerous in the reports breakings enterings area and he had received building at 1620 to Gladstone. The trial court refused suppress appeals. the heroin. Defendant Held: Appeals ruling 1. The Court of will not overturn a of a hearing suppress court at a on a motion evidence unless clearly is to be A found erroneous. officer’sinvesti- [1] [4] [3] [2] [6] [5] 81 Am Jur Witnesses 465. 68 Am Jur 21 Am Jur 21 Am Jur 68 Am Jur Jur 5 Am Jur 5 Am 2d, Appeal 2d, Appeal 2d, 2d, 2d, 2d, 2d, References Searches and Seizures Criminal Criminal Law Searches and and Error 772. 881. and Error Law § for Points Seizures §§ §§ §§ 189. 182, 188, § § in Headnotes §§ 41-44, 56, 41-44. 102. Carter 6.95 gatory pursuit defendant of a must be tested the Fourth general proscription against Amendment’s unreasonable seizures, reviewing and a court must if searches determine which, specific, record reveals articulable facts taken to- *2 therefrom, reasonably gether war- with rational inferences who, nighttime protested the intrusion. Police officers at ranted occurred, rapes a in an area where several had encountered officers, who, seeing building person upon ran a toward object breakings enterings of and were which had been further, justified investigating and discovered in the heroin investigation properly of that further admitted at course person possession the trial of that for of heroin. striking testimony persons 2. The of of who refuse to answer questions left to on cross-examination is a matter best sound discretion of the court. heroin, possession carrying 3. Conviction of of a concealed weapon felony-firearm, arising single all of a and out occur- rence, prohibition against violates the constitutional double Legislature jeopardy clearly because the did authorize separate carrying weapon for both a and convictions concealed felony-firearm. carrying weapon In such a case the a concealed conviction should be vacated. part part. Affirmed in and reversed in J., part. Mackenzie, dissented in She would hold that Legislature prohibited expressly fact that the crime of carrying weapon being underlying a concealed from offense felony-firearm of does not mean that there cannot be convic- felony underlying tions of both where another serves as the- of the conviction and would affirm all offense three convictions.
Opinion of the Court Appeal Suppression Clearly — — — 1. Criminal Law of Evidence Rulings. Erronéous Appeals ruling The Court of will not overturn of a trial court at a hearing suppress a on a motion to evidence unless that clearly is found to be erroneous. Appeal. — 2. Searches and Seizures investigatory pursuit
A of a defendant must be officer’s general proscription against tested the Fourth Amendment’s seizures, reviewing unreasonable and and a court searches specific, facts must determine if the record reveals articulable therefrom, which, together with rea- taken rational inferences sonably protested' warranted the intrusion. App 96 — (cid:127)— 3. Searches and Seizures Controlled Substances Evidence. who, nighttime rapes Police at an area where several officers occurred, who, person upon seeing encountered officers, building object ran toward a which had been the of breakings justified investigating further, enterings investiga- discovered in the course of that further heroin properly person at tion was admitted the trial of for possession of heroin. Striking Testimony — — — Witnesses of Refusal Answer Judicial Discretion. striking persons testimony ques- who to answer refuse is a matter left to tions on cross-examination best the sound discretion trial court. Felony-Firearm Carrying — — 5. Criminal Law a Concealed — Weapon Jeopardy. Double heroin, carrying weapon Conviction a concealed felony-firearm, arising occurrence, single all out of a vio- prohibition against jeopardy lates the constitutional double Legislature clearly separate because did not authorize felony- for both convictions *3 firearm; carrying weapon in such a case the a concealed convic- tion be should vacated. by Mackenzie, Dissent Part J. Jeopardy — — — Law Criminal Constitutional Law Double Multiple Punishments. guarantee against jeopardy protects
The constitutional double offense, against multiple punishment for the same and the test multiple punishment to determine whether there was for the requires proof same offense is either each whether crime of a require fact the other does crime whether the Legislature expressed punish sepa- a intent clear defíne rate offenses based on one incident. Felony-Firearm — Carrying — 7. Criminal Law a Concealed Weapon — Jeopardy. Double Legislature expressly prohibited fact the crime of carrying weapon being underlying a concealed from offense felony-Srearm does not mean that be there cannot convic- felony underlying tions of both where another serves as felony-firearm conviction; carrying offense conviction weapon, felony-firearm possession of heroin aris- ing single from a occurrence does not violate the constitutional prohibition against jeopardy. double v Carter Opinion op the Court General, Robert A. Kelley, Attorney Frank J. Cahalan, L. William General, Derengoski, Solicitor Wilson, Edward Reilly Prin- Prosecuting Attorney, Solak, and Andrea L. Attorney, Appeals, cipal for the Prosecuting Attorney, people. Assistant Jr., Haley, William A. appeal. for defendant on J., D. E. Before: P. and D. F. Holbrook, Jr., Mackenzie, Walsh and JJ. Defendant, Carter,
D. F. J. Wálsh, Chauncey heroin, jury was convicted 335.341(4)(a); 18.1070(41)(4)(a), posses- MSA MCL or attempted of a firearm the commission sion 750.227b; MCL MSA felony, commission of a 28.424(2), weapon, a concealed MCL carrying 16, 1977, 28.424. December 750.227; MSA On to a term of two to four prison was sentenced heroin conviction and two to five on the years a concealed convic- on years run concurrently. sentences were to tion. These sentence, to be mandatory year prison two consecutively, imposed felony- for the served appeals; He now we affirm in firearm conviction. reverse in part part. 26, 1977, September preliminary
At defendant’s examination, Ronald Smith of the Detroit Officer 8:40 p.m. testified that at about Department Police 15, 1977, patrol he was on routine September on the area of Gladstone and Woodrow Wilson with Offi- Detroit. Three other officers were *4 car. As the car police cer Smith his semimarked Gladstone, Smith saw approached 1620 Officer walking apartment from the away defendant reached that address. defendant building at When sidewalk, looked in the direction car, ran toward the turned around App 698 96 Mich Opinion of the Court apartment building. Officer Smith followed. When defendant reached the building he opened door and entered a foyer area. As the door closing defendant, behind Officer Smith him saw throw plastic bag. The officer up bag down picked saw that it contained substance brown he suspected was heroin. Defendant was placed arrest. Officer James Irons conducted under a patdown search of defendant took a .25- caliber loaded automatic pistol from defendant’s waistband. Smith,
According to Officer had been nu- there rapes merous in the area and he had received reports of breakings and enterings in the building at 1620 Gladstone. 21, 1977,
On October pretrial defendant’s motion to suppress the heroin was Citing v denied. Terrell, 676; Mich App (1977), NW2d argues defendant the trial court erred in denying his motion to suppress evidence.
We will not disturb the trial court’s denial of
defendant’s
suppression motion unless we find that
it was clearly
People White,
erroneous.
354;
lv den
We agree with the Terrell panel
the police
officers’ investigatory pursuit of defendant must be
tested
the Fourth
general
Amendment’s
pro-
scription against unreasonable
searches
and sei-
Terrell,
zures. People v
supra, 679. Under
Terry
Ohio,
392 US
S Ct
Similarly, could to the officers this case investigatory articulable facts which warranted They pursuit of defendant. encountered defendant rapes nighttime in an area where several at Upon seeing suddenly them, occurred. defendant building which had turned and ran back toward enterings. breakings object the Under been investigation circumstances, rea- the further judgment, fact, In in our failure inves- sonable. good tigate have with would been inconsistent practice.1 The trial denial of defen- court’s suppress To dant’s motion to is affirmed. whatever 1 holding. jurisdictions support to our Several from other lend cases that, following cases, the courts under facts In each found facts, Terry analogous beeii to the standard had similar instant (Ala 1978), State, People App, v 358 So 2d 504 Crim satisfied: Luker v Taylor, 2d King, App Ill 379 69 v 363 So 3d NE2d State 1978). (Colo, (La, 1978), Waits, People v P2d 391 Also see (ED Coleman, Supp 439-440 States F discussion United concerning 1978), flight Mich, significance of a defendant’s determining Terry has satisfied. standard been whether 96 Opinion op Court supra, may Terrell,
extent be inconsistent case, with our this we decline to follow it. During separate trial a record was made to proposed Jackson, determine if Willard defense testify. witness, would be allowed to Mr. Jackson had been with defendant at the time of questions posed latter’s *6 response by In arrest. to to him counsel, Mr. defense Jackson stated that he would questions regarding answer where he had met September they 15, 1977, defendant on what time gone Gladstone, had to 1620 and what had oc- at curred the time of stated, defendant’s He arrest. however, that he would not answer certain of the questions posed by prosecutor.2 which would be prosecutor’s Mr. Jackson did not refuse to answer all of the questions. following is the entire cross-examination the witness prosecutor: "CROSS EXAMINATION "BY MR. SCHRAM: sir, "Q you you doing there, if Yes I were to ask what were would problem you? that be a to I "A refuse to Can answer? say yes "MR. SCHRAM: can You or no to It that. would be a problem you, you, to that doesn’t incriminate that means I wouldn’t you be ask able to that. that, no, "A answer to I wouldn’t that. answer Schram) "Q (By you Mr. You wouldn’t answer that. If I asked did you you? grams afternoon, see problem heroin that would that abe to "A I wouldn’t answer that. "Q you you yourself, heroin, grams If I asked if had touched you would answer that? "A No. "Q you you Carter, Chauncey If I asked if you handed it to would answer that? "A No. "Q you Chauncey grams If I asked did Carter have 50 of heroin on apartment building, him he you when walked back to that would answer that? that, probably, yes. "A I’d answer "Q you you Chauncey If I asked if were with Carter in the apartment prior exiting you doing apart- to it and what in the ment, would answer that? No, "A oh no. v Carter Opinion of the Court you you knew Mr. Carter was aware "Q if whether If I asked that, though, you that? would answer Yes, that. I’d answer "A "Q you truthfully? that Would answer truth. "A I swore tell the that, say you you would would answer what Well "THE COURT: that, your tobe sir? answer belonged question whether it to him? is "A What—the Schram) belonged "Q (By Not whether it to him. Whether Mr. No. there, dope that there was it was whether he knew he knew foyer? hallway, you meant? that what "A Is "Q Maybe I didn’t ask that. that, I don’t think. "A You didn’t ask “Q you I one think asked? Which did thought you question if he me would I answer The last I asked "A knowledge any it.of had "Q Right. knew it. "A if he about Or got "Q Right. he knew how it there. Not whether knowledge any of it? "A Whether dope day. "Q the Of "A Yes. "Q you that? Would answer Yes, "A I’d answer that. you question "Q whether time would answer But at same upstairs you apartment you Mr. with in that Carter *7 —whether you dope, you would answer that but knew about the wouldn’t and he answer you the once down on street? were "A Yes. knowledge may "Q you have had saying whatever he had or So are apartment longer no existed he was on was in when when he street? knowledge any we he was in there. What are "A If he had when knowledge assuming that he of? answering question. "Q assuming you For that We are that are not argument assuming did it was in we are that he know the sake apartment. question, If I that. I wouldn’t answer "A wouldn’t assume way. I evidently I it that he couldn’t have known about it. would take downstairs, anything If he know look at it on that side. didn’t would upstairs. anything know he wouldn’t you upstairs perhaps "Q goes, some how first Is that it were upstairs brought upstairs? dope exchanged or out question. "A That is not the "Q any knowledge question later That is the as to he had whether you up dope there or whether on the street whether there involved dope. question. "A I understand that ápp 702 96 694 op Opinion the Court questions Answering posed by to him the trial testify court, Mr. Jackson stated as would * * * to "the Mr. absence of Carter’s involvement knowledge” ques- ór but that he would not answer "tending go [his] tions knowledge”. to to own ór involvement The trial court Mr. ruled Jackson’s testi mony Would not be ádhiitted. The court found that the introduction of the witness’s testimony, light anticipated of his assertion of his Fifth privilege himself, Amendment not to incriminate prosecutor’s right would thwart to cross-examine hi m. general regarding proper rule to course he taken when a witness refuses to answer certain questions on cross-examination set Was forth (CA Stephan States, 87, 6, v United 133 F2d 1943), 781; 858; cert den 318 US 63 S Ct 87 L Ed reh 783; den 319 US S 63 Ct (1943): L Ed 1727 general
"The
rule is that
'where the witness after his
examination in
on
chief
the stand has refused to submit
cross-examination,
to
opportunity
probing
of thus
and testing his
substantially
statements has
failed and
his direct testimohy
be
Wigmore
should
struck out.’
on
Ev., supra,
112,
p
Sec.
and cases cited in the
general
footnotes. But
many
to this
rule there are
exceptions. One is that
'on the
circumstances
cdSe, the
or evasion of
answers
one more
refusal
questions only
Wigmore
need
lead to this result.’
states,
further
'Courts treat
varying
this situation with
you
Thát one
couldn’t answer?
"Q
"A No.”
court
further
ruled that exclusion of the witness’s
testimony
Giacalone,
was mandated
the decision in
(1977). Finding
Mich
reliánce on a
In two recent
pre
precise
which is
dealt with the
issue
Court
court
in this case: whether
to us
sented
striking
testimony
properly
the entire
in
acted
Monsoor, 56
2d
See State v
Wisc
witness.
defense
State,
Peters v
70 Wisc
689; 203 NW2d
(1975).
Peters,
As noted in
22;
Defendant was convicted of three crimes—fel- ony-firearm, possession carrying of heroin and a weapon. Supreme holding concealed The Court’s Wayne County v Prosecutor Recorder’s Court Judge, (1979), 374; 406 Mich 280 793 NW2d conclu- sively constitutionality legality establishes the and possession of concurrent convictions of of heroin felony-firearm. Supreme Court’s discus- Wayne County Prosecutor, however, sion in inevitably ing leads carry-
to the conclusion that defendant’s weapon a concealed conviction cannot stand. felony-firearm expressly provides statute felony-firearm that one of element the crime of is attempted any or commission commission felony carrying weapon other than a concealed weapon. 750.227b(1); unlawful aof MCL 28.424(2)(1), Wayne County MSA Prosecutor v Re Judge, supra, corder’s Court words, 397. In other (id.) carrying weapon "proper” a concealed is not a felony purposes supporting felony-firearm for conviction. argued, however,
It is that because defendant was also convicted of the heroin offense and be- underlying cause that crime can serve as the felony supporting felony-firearm conviction, carrying weapon a concealed conviction can separate stand as a and distinct conviction. The statutory language possible clearly does not eliminate the argument.
validity of this Nor did the Legislature clearly indicate its intent to authorize concurrent convictions of a cases which felony charged third in the information. analyzing reaffirming In its decisions in People (1926), Cook, v 296 NW People Carter Opinion Court People 303; 247 Martin, 398 Mich NW2d (On (1976), Rehearing), v Stewart Supreme 256 NW2d Mich Court, supra, Wayne County Prosecutor, ob- "in- cases had none those earlier served legislative a clear statutes volved evidenced separate and cumu- convictions to authorize intent punishments on occurrence”. based one lative The Court concluded: *10 stand for the cases "These [Cook/Martin/Stewart] Legislature clearly the has not that where proposition punish- cumulative multiple and authorized ments, convictions and their attendant of two convictions both 374, 402. 406 Mich punishments cannot stand.” Applying situation, to the standard instant this carrying con- that defendant’s a are satisfied we weapon must be set aside. The conviction cealed carrying weapons felony-firearm
a concealed occurrence”, i.e., are "one one based on convictions Legislature possession the of a firearm. Because clearly separate convictions for authorized has both weapon felony-fire- carrying a concealed firearm, a one of on one arm based punishment can- and its attendant the convictions therefore, We, aside defendant’s stand. set not carrying weapon vacate a concealed conviction and punishment for that conviction.4 the received jury the instructions We have examined assignment error with find that defendant’s respect thereto is without merit. part. part; in in
Affirmed
reversed
major
by
opposite
the
are
the
result was reached
We
aware
(1979).
Shelton,
App
In
People
E.D.
concurred.
J. (dissenting
part).
Mackenzie,
I
join
cannot
part of
opinion
the majority’s
which holds that
there cannot be convictions
for both
a
carrying
weapon
concealed
and felony-firearm
upon
based
one occurrence. Unlike the
I agree with
majority,
Shelton,
majority opinion
As right against noted in double (1) is jeopardy not violated if each requires offense (2) proof not, of a fact the other does Legislature a expressed clear intent to define and punish separate offenses based on one occurrence. carrying The crimes of require each proof of fact that not.
other does The former that a requires danger- ous weapon be concealed while the latter requires that a firearm possessed during be the commission or attempted commission of a felony.
I do not believe the
Legislature
fact that
has
prohibited the
expressly
crime of
a con-
*11
cealed weapon from
being
underlying
offense
felony-firearm means that
there cannot be convic-
tions
both where another
serves as the
felony
underlying offense of the
conviction.
The crimes of
concealed
felony-firearm serve two different
Ac-
purposes.
Jones,
cording
in People v Jonnie W
to this Court
(1968):
293,
12 Mich App
295-296;