*1 Sangster 1983] v SANGSTER
PEOPLE 4, 1982, Mаy Lansing. No. 55036. Submitted Docket at Decided 9, February 1983. Sangster carrying L. Freddie was convicted of in an automobile, Court, Saginaw Joseph McDonald, Circuit R. J. The Saginaw Department Police had received information that Sangster carrying weapon. Subsequently, was a concealed officer, Saginaw carrying gun, approachеd Sangster sitting Sangster who was in his automobile and ordered that get out of the car. fled in his automobile with the pursuit. allegedly officer The officer saw throw a gun apprehended. out of the car window before he was At the examination, preliminary magistrate gun ruled that Sangster allegedly threw from the car had been obtained illegal аs a result of an search and seizure and dismissed the case. The circuit court reversed the decision and remanded the completion preliminary case to the district court for of the subsequently examination. bound over for trial appeals, alleging and convicted. The defendant that the trial (1) failing evidentiary hearing court erred in: to conduct an relying solely upon transcript preliminary of the examina- denying tion before his motion to (2) police; initially holding of the defen- dant’s convictions would not be that the admissible but prosecution again during could raise the issue trial subsequently allowing admission of evidence of the defendant’s prior convictions аfter the defendant testified on his own be- (3) half; refusing to instruct the on the lesser offense attempted carrying of a concealed Held: discarding subsequent 1. The defendant’s and the not, law, seizure of the were as a matter of illegal intrusion, although the results of an the issue should be [1] [2, [4] Offense of 5 Am Jur 79 Am Jur 81 Am Jur 2d, or carrying 2d, Weapons References plаce Arrest 2d, Witnesses 569. of concealment. 43 ALR2d 492. concealed §§ 80, and Firearms Headnotes for Points in 81. § §§ as affected 9,10,' 12. manner analyzed by using the "fruit of the tree” doctrine. drawing gun upon approaching Sangster’s The officer’s of his automobile did not transform the into an arrest. It is the privacy actual intrusion on a defendant’s that must be exаm- Amendment, alleged ined violation the Fourth not the *2 plan intent or of the officer. deciding permit impeachment in 2. The trial court erred prior of his convictions after the the defendant had testified. defendant refusing jury trial court did not err in to instruct the 3. The attempted carrying of a concealed on the lesser offense weаpon. Reversed and remanded. Maher, P.J., part part. concurred in and dissented in R. M. evidentiary He would direct the trial court to conduct an weapon. hearing He was unable on motion to determine from the record whether the trial court erred in denying suppress. The court the motion to lower must deter- unlawfully attempted mine whеther the officer to detain or so, If was obtained as a result arrest the defendant. suppressed of unlawful action and should be as "fruit of agreed He the trial court erred in tree”. admitting prior evidence of the defendant’s convictions for impeachment purposes after the defendant had He testified. refusing
believes that the trial court did not err in to instruct attempted carrying on the lesser offense of of a concealed
Opinion of the Court Stop— — 1. Arrest Police Measures. Protective officer, including by police Protective measures undertaken drawing approaching officer’s of a a car whose driver armed, arrest, may be do not transform a into an purposes Amendment; increase Fourth the officer (US being by leaving the risk of shot its holster IV). Const, Am Maher, R. M. Partial and — Impeachment. — 2. Evidence Prior Convictions Generally, ruling a trial court should not reserve its on a motion prior evidence of a defendant’s convictions until the completed testimony defendаnt has his but on the should rule immediately. motion Opinion of the Court Impeachment. — — Prior Convictions 3. Evidence determining whether evidence of a defendant’s A trial court impeachment purposes be admitted for convictions should impeachment crimes that are not should limit to evidence of substantially charged similar to the crime аnd crimes that are significantly probative credibility. of the defendant’s Weapons — Weapons — 4. Concealed Lesser Included Offenses. attempted carrying The crime of of a concealed is not a necessarily lesser included offense of the crime of (MCL 28.424). 750.227; in an automobile MSA J. Louis J. General, Kelley, Attorney Frank Caruso, Kаczmarek, Robert L. General, Solicitor Pearson, F. Kay Prosecuting and Assis- Attorney, Prosecuting people. tant for the Attorney, Carter), A. Derrick Appellate (by State Defender appeal. for defendant on P.J.,
Before: Bronson Snow,* R. J. JJ.
Bronson, I agree J. with the dissent that defen- dant’s conviction must be reversed due to the to untimely decision allow evidence of defendant’s to for impeachment pur- convictions be used poses.
I write to state with separately my disagreement the dissent’s treatment of the search and seizure A gun stop issue. drawn does not a into transform Ohio, In Terry 1868; arrest. 392 US 88 S Ct 20 L (1968), Ed 2d 889 Chief Justice Warren stated: govern-
"We are now concerned with more than the addition, crime; mеntal there in investigating interest police is the more immediate in interest taking steps person officer to that the assure himself dealing with whom he is is not armed with a * judge, sitting Appeals by assignment. Circuit on the Court of Mich 101 Opinion the Court of against fatally unexpectedly be used could that him. require that unreasonable to in Certainly it would be perfоr- unnecessary risks the take police officers Terry, supra, p 23. duties.” of their mance pri- significant Terry on encroachments allowed protect police rights vacy in the officers in order this measure of To achieve of their duties. course "stop permitted protection, Terry officers to subject, in which under circumstances frisk” a probable offending exist, without did not
cause drawing gun of a does may Amendment. Fourth of a frisk but add to the intrusiveness little to protection greatly the officer afforded add during stop. measures, such as Protective approaching drawing gun driver a car whose armed, into an do not transform be being may increase the risk of arrest; the officer leaving shot, however, in its holster. (CA 1981). 2, Jackson, 652 F2d United States v appropriate, addition, it I do not think In analysis, attempt to devine Fourth Amendment have done had a sus- officer would what planned pect intrusion on not fled. It is not the privacy examined, it is the actual which must be Terry, supra, p 21, fn 16. one. See disagree I must alsо with the statement clearly ob- "the allegedly illegal intru- tained as a result” of the agree although problem I do must be sion analyzed by using the "fruit tree” the act doctrine. The trial court ask whether must throwing from the car was a result allegedly illegal doing so, In it cannot action. *4 discarding possibility overlook the gun response to was the result оf unreasonable an the situation This Court cannot defendant. discarding conclude, law, as a matter of that the Sangster Maher, and Partial R. M. P.J. fruit gun illegal was the of the allegedly stop. questions concerning suppresssion All of evi- open dence remain our remand to the trial court.
Reversed and remanded. Snow, J.,
R. J. concurred. in (concurring part and dis- in Defendant, senting part). Sangster, Freddie Lee was convicted in carrying an automobile, 750.227; MCL MSA 28.424. Sentenced years prison, appeals three to five he as of right. 1979, April, Saginaw
In Police Department Mr. tip Sangster received a was carrying a later, weapon. concealed Two weeks the police tip received another to the same effect. days Two tip, after the second Officer Russell Howell spotted Sangster leaving thereupon a bar. Howell ap- car, proached Sangster, sitting who was in a in an him in effort to detain order to determine whether or not he was Howell ordered Sangster out of the car at gunpoint. For some detained, Sangster reason did not wish to be thus car, and he fled the scene in his with Officer chase, pursuit. Howell In the course of the Howell observed allegedly Sangster throw a through thereafter, his car’s open window. Shortly apprehended.
At the preliminary hearing, magistrate ruled that thrown allegedly from his car had been obtained as a result of illegal search and magis- seizure. Accordingly, trate dismissed the case. The circuit court reversed and remanded the case to the dsitrict court completion of the preliminary hearing.
was bound over for trial. *5 App 101 123 Mich
106 Maher, Partial and trial, defense counsel filed motion Before the the and suppress to rely solely upon the circuit court urged hearing transсript deciding preliminary the court failed to conduct an Accordingly, motion. the motion. hearing denying before evidentiary also filed a motion in limine to Defense counsel convictions for prior evidence of exclude purposes. Sangster prior had four impeachment a 1975 conviction for con- convictions: 1978 wеapon; cealed 1972 and convictons felo- assault; a 1975 for possession nious conviction The circuit court ruled that evidence of of cocaine.1 convictions would not be admissible but prior could raise the prosecution stated that issue trial if the circumstances so again during war- ranted. ruling,
In this testified in reliance оn gin defense. He testified that he threw a his own bottle, gun, completion not a out of his car. At the examination, prosecutor brought of the direct impeach Sangster by prior a motion to evidence of convictions, arguing put that "in the jury minds of the that he sits there with a halo court granted over his head”. The trial the motion. We reversе and remand for a new trial. rule, general
As a
a trial court
not reserve
its
on a
ruling
prior
motion to
evidence of
completed
convictions until
the defendant
his
has
testimony but must
rule on the motion immedi-
A
ately.2
defendant’s decision
or not
whether
take the stand
the trial
typically
hinges upon
prosecution
did
the 1978
not seek to introduce evidence of
felonious assault conviction at trial.
140;
People
Lytal,
To the extent
v
96 Mich
and
292 NW2d
(1980),
(1980),
gtd
People
Taylor,
498
App
lv
If the trial against probative of a conviction value *6 prejudicial has in- until the court been effect its testimony, the defendant’s the nature of formed of then, apprise upon request, counsel shall defense general the of what the substance the court of say if he takes stand. intends to defendant ruling. If trial court its then issue court shall prior grants of evidence the motion to impeachment by of convictions, prior evidence then no permitted unless shall be convictions diverges substantially testimony from defendant’s "preview” court deter- and unless the version divergence, light that, the substantial of mines prior probative offense now value of each prejudicial effect. exceeds its Sang- case, the record shows that In the instant surprise testimony to either the came as no ster’s prosecution Sangster’s version of the trial court. or prosecution’s very the facts was similar to (except he threw a that he testified that version bottle of gun,
gin car, as from his rather than contended). Sangster finished Howell After Officer testifying, its however, decided to reverse the court con- earlier to decision Nothing supports the trial in the record victions. change did not of heart. court’s sudden testify had or that he that he had a clean record gave gun. simply possessed his own never He the trial court version of the facts. hold that We permit deciding im- abused its discretion 123 Mich and Partial Dissent peachment evidence of prior convictions after already had testified. court, instance,
Even if the trial in the first had permit decided to impeachment by evidence of (rather prior convictions than until waiting after testified), we already are not neces- sarily convinced that such a decision would have reflected a proper exercise of discretion. Sangster’s simple conviction possession of a controlled was, all, substance if at only probative marginally Moreover, of his credibility. introduction into evi- dence conviction of a con- cealed weapon similar crime —was very prejudi- —a cial to his case. The trial court made no attempt distinguish between the three prior offenses intro- Rather, duced prosecution. the court simply probative ruled thаt value of the three convic- tions prejudicial exceeded their effect. In such urge situations we trial courts to exercise their (1) discretion to limit impeachment to evidence of crimes that are not similar substantially (2) charged, crime crimes that are significantly *7 probative of the defendant’s credibility.
I shall now address two other issues which will arise again in the Sangster еvent is retried.
In People v Talley, 378; 301 809 NW2d (1981), the Supreme Court indicated its disap- proval of practice of reliance on preliminary examination transcripts in ruling on motions suppress evidence. I find myself unable to deter- mine on the basis of the present record whether the trial court erred in denying Sangster’s motion to suppress. I Accordingly, would direct the trial court, remand, to conduct an hear- evidentiary ing ruling before on the suppress. motion to
I would like to make the following observations
in order
to provide
the trial
court with some
Partial
ruling
in
on the motion to
guidance
measure
(1) I
doubt whether
harbor considerable
suppress.
suspect
gun-
who
a
at
aрproaches
officer
police
suspect
intent
to search the
and with the
point
Terry3
making
said to be
weapons
fairly
can be
remand,
the trial
rather
than an arrest. On
whether
Howell
court
should determine
Officer
arrest,
not just
to make an
actually trying
was
(2) If the trial court determines
that
a Terry
stop.
Terry
stop,
to make а
attempting
Howell was
then determine whether Howell rea-
court should
that
armed and
believed
was
sonably
(3) More
I take issue
dangerous.
fundamentally,
the Fourth
with the trial court’s assertion
United
Constitution
Amendment
to the
States
was
of the
intro-
inapplicable
weapon
to the seizure
The court was
under the
apparently
duced аt trial.
that,
since
impression
allegedly
vehicle,
thrown the
from his
he had not
right
been "searched” and that
therefore his
to be
searches and seizures had
free from unreasonable
analysis
point.
not
violated.4 This
misses the
been
police
It is irrelevant
This,
person.
was not
taken
from
(1968).
Ohio,
1868;
Terry v
392 US
88 S Ct
Finally, I
contention that the
address
refusing
to instruct the
trial court erred
attempted carrying
of a con-
the lesser offense
weapon. Attempted carrying of a concealed
cealed
necessarily
not a
lesser included offense
is
People
carrying
pistol in an automobile. Cf.
v
(1982).
Adаms,