People v. Turner, 229 N.W.2d 861

People v. Turner

229 N.W.2d 861

Mich. Ct. App.

1975

Check Treatment

N. J. Kaufman, J.

Defendant was found guilty of armed robbery, MCLA 750.529; MSA 28.797, after a jury trial in Detroit Recorder’s Court. He was sentenced to a term of 5 to 15 years and now appeals.

At trial, the complainant, Larry Means, testified that, on the night he was robbed, he had gone with defendant to a bar where they met a mutual friend, Augustas Murphy. The three men drank together and, when Means went to the men’s room, Murphy left the bar. Means stated that, as he and the defendant were walking home, defendant suggested that they stop at a nearby apartment building to visit defendant’s sister. When the two men got into the elevator, defendant pushed the button for the seventh floor. Testimony later showed that defendant’s sister did not live on the seventh floor. According to Means, when the elevator door opened on the seventh floor, Augustas Murphy, whose head was covered with a clear plastic bag, rushed into the elevator and accosted Means with a butcher knife. Means claimed that Murphy instructed the defendant, by name, to go through Means’ pockets and take his money. Defendant did so and also took Means’ watch and gave it to Murphy. Murphy got off on the ninth floor. Defendant rode back down with Means where, according to Means, he threatened to "get him” if he pressed charges. Means claimed that, after defendant’s arrest, Murphy gave him back his watch. Murphy was never arrested.

Defendant testified that he and Means had gone to visit defendant’s sister at an address different than that given by Means. He claimed that before they got onto the elevator the two were accosted *592 by an unfamiliar man wielding a knife. He claimed that he was asked by Means to reach into his pocket and give Means’ money to the robber and that the robber had taken Means’ watch. Defendant denied threatening Means.

On appeal, defendant raises four claims of error. First, he contends that the evidence presented at trial was insufficient to support the verdict. Although defendant was charged with armed robbery, MCLA 750.529; MSA 28.797, the trial judge instructed the jury, and defendant was convicted, under the aiding and abetting statute, MCLA 767.39; MSA 28.979. That statute provides:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

To sustain a charge of aiding and abetting, the guilt of the principal must be established. People v Williams #1, 45 Mich App 623; 207 NW2d 176 (1973). The evidence must have been sufficient to show beyond a reasonable doubt that the defendant’s activity constituted aiding and abetting the crime. People v Palmer, 392 Mich 370; 220 NW2d 393 (1974), People v McGuire, 39 Mich App 308; 197 NW2d 469 (1972). Defendant does not question whether the evidence was sufficient to show that the man whom the complainant identified as Augustas Murphy committed an armed robbery. Rather, defendant states that, because armed rob *593 bery is a specific intent crime, People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970), lv den, 383 Mich 792 (1970), an aider and abettor cannot be held as a principal under the statute unless he was of such intent or he aided or abetted in the perpetration such that he knew that the actual perpetrator had the requisite intent. People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969). Defendant argues that the evidence was insufficient to establish that he had such intent.

We disagree. The record contains sufficient evidence, if believed by the jury, to demonstrate a commonality of intent between defendant and the principal perpetrator. The complainant described a scheme by defendant and Murphy to "set him up” for a robbery. Murphy left the bar while defendant was absent. Defendant suggested that he and complainant visit defendant’s sister, who lived on the eleventh floor, but defendant pushed the seventh floor button. Murphy was waiting on the seventh floor, and in the course of the robbery referred to defendant by name.

II.

Defendant’s second claim of error is that the court erroneously allowed one of the arresting officers to testify to prior inconsistent statements allegedly made by defendant while in custody. After defendant had testified that the robber had used a knife and that the robbery occurred before he and Means got on the elevator, the prosecution called one of the arresting officers, Officer Mc-Grath, as an impeachment witness. McGrath testified that, after his arrest, defendant claimed that the robber had used a gun and that the robbery *594 occurred on the elevator. 1 Before he testified, the officer had stated that he had no independent recollection of the conversation. He was then allowed to refer to notes which he had made at the time of defendant’s statement and which he identified as being in his (McGrath’s) handwriting. Defendant contends that the Supreme Court case of People v Rodgers, 388 Mich 513; 201 NW2d 621 (1972), requires reversal. Further, defendant argues that the memorandum should not have been read into evidence since the officer never fully authenticated it. People v Rosborough, 387 Mich 183; 195 NW2d 255 (1972). Plaintiff responds that Rodgers is not in point and that authentication was not required because the officer’s notes were used to refresh his recollection, not themselves offered into evidence.

We agree with plaintiff that People v Rodgers, supra, does not control this issue. In Rodgers, a police officer, called to impeach the prior testimony of an alibi witness, read into evidence a memo which contained a statement that the witness had made but had refused to sign. The Supreme Court found the statement inadmissible as hearsay because its contents were not used for impeachment but as substantive evidence. In the instant case, Officer McGrath’s testimony was elicited solely to impeach defendant’s testimony by prior inconsistent statements.

What must be determined here is whether Officer McGrath used his notes to refresh his recollection or whether the notes represented a record of his past recollection, and he testified by merely reading them into evidence. Where a witness testi *595 fies from memory, with his recollection having been stirred by a writing, his testimony is what he relates, not the writing. People v Thomas, 359 Mich 251; 102 NW2d 475 (1960), 3 Wigmore, Evidence § 735, p 78. Opposing counsel must be allowed to examine the writing, Miles v Clairmont Transfer Co, 35 Mich App 319; 192 NW2d 619 (1971). If after examining the writing, the witness still has no present memory of the transaction described but does believe that the memorandum accurately describes the transaction, the writing itself becomes the testimony. The witness is merely reading from the prior recorded recollection. At that point, a specific foundation must be laid before the writing may be read into evidence. The foundation consists of:

"(a) a showing that the witness has no present recollection of the facts, (b) a showing that the witness’ memory is not refreshed upon reference to the document, (c) a showing that the document is an original memorandum made by the witness from personal observation, (d) a showing that the document was prepared by the witness contemporaneously with the event and was an accurate recording of the occurrence and, (e) a showing that the substance of the proffered writing is otherwise admissible.” Jaxon v City of Detroit, Department of Street Railways, 379 Mich 405, 413; 151 NW2d 813, 816 (1967).

An examination of the record does not tell us how the notes were used. However, we find that, in either case, the correct procedures were followed. Although treated as present recollection refreshed, the testimony satisfied the foundation requirements for past recollection recorded. Officer Mc-Grath authenticated his notes, People v Rosborough, supra. He testified that he made them while defendant was speaking to him and that they were *596 an accurate summary of defendant’s statement. Further, the testimony was clearly introduced as impeachment, not substantive evidence. Thus, if the officer had no present recollection, and his memory was not refreshed, and if he was merely reading from his notes, he did so properly.

III.

Defendant’s final two claims of error both involve allegations that the trial court committed error in not giving certain instructions. In both cases, defendant failed to object or offer an instruction. To preserve a claim of error for appeal, a party must interpose a timely objection at trial, GCR 1963, 516.2. Absent such objection, this Court will consider claims of error only where manifest injustice has occurred, People v McClure, 29 Mich App 361; 185 NW2d 426 (1971), lv den, 385 Mich 761 (1971). 2 Defendant argues that error occurred when the court failed to instruct the jury that Officer McGrath’s testimony would be considered only for impeachment purposes and not as substantive evidence. This failure is not per se reversible, People v Coates, 40 Mich App 212; 198 NW2d 837 (1972). No manifest injustice resulted. Indeed, the trial court carefully cautioned the jury concerning Officer McGrath’s testimony. The judge stressed that Officer McGrath’s testimony. The judge stressed that Officer McGrath "had no independent recollection of his conversation with the *597 defendant, but only a vague recollection of the continence of the defendant”. He also stated that the notes were not themselves admissible, although, as we noted above, if the officer read the notes into evidence, he did so properly. Defendant did not object to this instruction.

Defendant, citing People v Lemmons, 384 Mich 1; 178 NW2d 496 (1970), also argues that the court should have sua sponte instructed the jury on lesser included offenses. 3 Lemmons requires reversal in the absence of objection, only when the court “affirmatively excluded [lesser included offenses] from the consideration of the jury”. Id. at 3; 178 NW2d at 497, People v Lindsey, 56 Mich App 458; 224 NW2d 273 (1974).

The trial court instructed: “You have only two possible verdicts. They are guilty or not guilty”. This Court has approved this instruction on at least two occasions, People v Goldfarb, 37 Mich App 57; 194 NW2d 535 (1971), lv den, 386 Mich 787 (1972), and People v Roshinsky, 37 Mich App 754; 195 NW2d 282 (1972), lv den, 388 Mich 761 (1972). We approve it here, but not without the same reservations as those succinctly stated by Chief Judge Lesinski, concurring in Roshinsky, supra. A clarification of the Lemmons doctrine is clearly required.

Affirmed.

Notes

Defendant makes no claim that the statement allegedly made to Officer McGrath was involuntarily made or made without defendant’s "Miranda rights” having been explained to him. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” MCLA 769.26; MSA 28.1096.

Unfortunately, defendant’s appellate counsel does not indicate on what lesser included offenses the jury should have been instructed. Appellate counsel for defendant has, on his other issues, failed to do much more than state conclusions and cite a few cases without any real discussion of those cases or of the issues involved.