People v. Oscar Moore , 164 Mich. App. 378 ( 1987 )

164 Mich. App. 378 (1987) 417 N.W.2d 508

PEOPLE
v.
OSCAR MOORE

Docket No. 82073.

Michigan Court of Appeals.

Decided November 16, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by James Krogsrud), for defendant on appeal.

Before: SHEPHERD, P.J., and M.J. KELLY and R.L. TAHVONEN,^[*] JJ.

SHEPHERD, P.J.

Defendant Oscar Moore III was convicted by a jury of one count of armed robbery, MCL 750.529; MSA 28.797, two counts of first-degree criminal sexual conduct, MCL 750.520b(1) and (2); MSA 28.788(2)(1) and (2), one count of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and four counts of possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). He appeals from his convictions, asserting that he was improperly deprived of his right to testify, was prejudiced when the jury saw him in handcuffs, and was improperly convicted of multiple counts of felony firearm. He also appeals his sentence of one hundred to three hundred years on the armed robbery conviction, claiming that the sentence is cruel and unusual, contrary to the indeterminate sentence act, and is so excessive as to shock the judicial conscience. We affirm defendant's convictions, but vacate defendant's armed robbery sentence and remand for resentencing.

Defendant's convictions arose out of his assault and robbery of the victim. At gunpoint, defendant stole the victim's money and necklace and forced her to submit to intercourse and fellatio. After defendant left the victim's home, she immediately contacted the police and gave a description of her assailant. A short time later, defendant, who resembled the victim's description, was observed and followed by an officer. When the officer approached defendant, defendant shot at the officer and fled. Defendant was subsequently apprehended by other officers.

Prior to trial, by motion in limine, the defense succeeded in suppressing evidence of defendant's prior convictions for impeachment purposes under MRE 609. However, the trial court's ruling did not preclude the use of evidence of the prior convictions to show perjured testimony. At the close of the prosecutor's case, defense counsel informed the court that he had recommended to defendant that he not testify. This was based on counsel's understanding that if the defense offered testimony that defendant was "a good law-abiding citizen," the prosecutor would be at liberty to rebut the claim by reference to evidence of the prior convictions. The trial court informed defendant that, if he testified, the prosecution might be permitted to make such use of the evidence of the prior convictions. The court also advised defendant of his right to remain silent and his right to testify. Defendant then chose not to testify.

Defendant first contends that the trial court's refusal to definitively rule on the admissibility of evidence of his prior convictions denied him his right to testify. Our Supreme Court has ruled that a defendant is entitled to know before he takes the stand whether, if he does so, evidence of his prior criminal convictions can be used for impeachment. People v Lytal, 415 Mich. 603, 609; 329 NW2d 738 (1982), reh den 417 Mich. 1105 (1983). However, the Lytal rule only applies to evidence of prior convictions offered to impeach a defendant's general credibility. It remains within the trial court's discretion to admit evidence of prior convictions at any time to show perjured testimony by the defendant. People v Douglas Taylor, 422 Mich. 407, 414; 373 NW2d 579 (1985).

In the instant case, the trial court was unable to rule in an anticipatory manner because defendant made no specific offer of proof as to what his testimony would be. The trial court, however, did explain the possible consequences of defendant's testimony. Those consequences were dependent upon the precise nature of defendant's testimony on the stand. The court declined to speculate on the nature and the scope of defendant's testimony and its consequent impact upon the admissibility of impeachment evidence. This was a proper exercise of judicial discretion in the absence of a specific offer of proof and is no basis for reversal.

Moreover, admission of the prior conviction evidence would have been wholly proper. A defendant cannot claim under oath to be a "law-abiding citizen" and ask the court to shield his blatant perjury from the jury's view under the guise of MRE 609. MRE 609 does not govern the use of evidence of prior criminal conduct to refute affirmative evidence of a criminal defendant's good character. Nor is MRE 609 "intended to apply where evidence of prior convictions is offered to rebut specific statements of the defendant who testifies at trial." People v Douglas Taylor, supra at 414.

After the proofs were closed and closing arguments completed, the defendant sought to reopen the proofs so that he could testify. The trial court refused to reopen the proofs. The defendant now contends that this decision denied him his right to testify.

Reopening the case after the defense has rested is a decision committed to the trial court's sound discretion. People v Van Camp, 356 Mich. 593, 602; 97 NW2d 726 (1959); People v Somma, 123 Mich. App. 658, 664; 333 NW2d 117 (1983). In reviewing the trial court's exercise of discretion, several factors are pertinent. These include whether conditions have changed or undue advantage would result, whether newly discovered and material evidence is sought to be admitted, whether surprise would result, and the timing of the motion during the trial. Van Camp, supra; Bonner v Ames, 356 Mich. 537, 541; 97 NW2d 87 (1959); Kornicks v Lindy's Supermarket, 24 Mich App 668, 672; 180 NW2d 847 (1970), lv den 384 Mich. 771 (1970). In the case at bar, a significant additional factor is defendant's constitutional right to testify. See People v Simmons, 140 Mich. App. 681, 683-684; 364 NW2d 783 (1985), lv den 422 Mich. 963 (1985).

The right to testify is not an absolute. It will be deemed waived if the defendant decides not to testify or acquiesces in his attorney's decision that he will not testify. The test is whether the defendant's waiver was made knowingly and voluntarily. Simmons, supra.

The record discloses that defendant's waiver of his right to testify was made knowingly and voluntarily. There were no changes in circumstances following that decision. There was no newly discovered evidence, nor does defendant suggest that the prosecution gained undue advantage by the court's decision not to reopen the proofs. Further, the request to reopen proofs was very tardy, as closing arguments had already been concluded. Since defendant had already waived his right to testify, it was within the trial court's sound discretion to permit or disallow his testimony at that stage of the trial. We find no abuse of discretion.

Defendant also argues that the trial court should have declared a mistrial following the jury's brief, inadvertent view of defendant in handcuffs. The incident occurred when the deputies having custody of defendant were returning him to court following a recess.

In general, freedom from shackling of a defendant during trial has long been recognized as an important component of a fair and impartial trial. People v Duplissey, 380 Mich. 100, 103; 155 NW2d 850 (1968); People v Baskin, 145 Mich. App. 526, 545; 378 NW2d 535 (1985). However, this rule does not extend to circumstances in which a defendant may be shackled outside a courtroom to prevent escape. People v Cleveland Wells, 103 Mich. App. 455, 459; 303 NW2d 226 (1981); People v Panko, 34 Mich. App. 297, 300; 191 NW2d 75 (1971), lv den 385 Mich. 783 (1971). In addition, where a jury inadvertently sees a shackled defendant, there must be some showing that prejudice resulted. People v Herndon, 98 Mich. App. 668, 672; 296 NW2d 333 (1980). It was incumbent upon defendant here to establish prejudice. Wells, supra. He failed to do so, and there is no error requiring reversal.

Defendant next contends that he was improperly convicted of multiple counts of felony firearm. Neither his statutory argument nor his constitutional double jeopardy claim have merit.

In People v Morton, 423 Mich. 650, 655-656; 377 NW2d 798 (1985), our Supreme Court construed the legislative intent of the felony-firearm statute and concluded that, but for a few exceptions not applicable here, every felony committed by a person possessing a firearm may result in a felony-firearm conviction. Significantly, the multiple underlying offenses in Morton occurred within the continuum of a single criminal transaction. A defendant's right to be free of double jeopardy is not impinged upon by this result. 423 Mich. 655. There is no basis here to reverse defendant's convictions.

Defendant also challenges his sentence for armed robbery on several grounds. In addition to the one hundred to three hundred years imprisonment imposed for armed robbery, defendant was sentenced to life on the two criminal sexual conduct counts, six to ten years in prison on the assault conviction, and consecutive terms of two years each on the four counts of felony firearm. Defendant does not challenge his sentences on these other charges.

We do not believe the Legislature has authorized a sentence of one hundred to three hundred years in prison for the offense of armed robbery. This case thus presents a question involving the interpretation of the numerous statutes relating to sentencing and parole. As the sentence given was not a valid one, we do not reach the issue of whether such a sentence is shocking to the appellate conscience. We remand for resentencing on the armed robbery charge, at which the trial court shall impose a valid sentence.

MCL 750.529; MSA 28.797 provides that a person convicted of armed robbery may be sentenced to prison "for life or for any term of years." Armed robbery is a Proposal B offense. Persons serving sentences for armed robbery are not eligible for parole until they have served the minimum sentence imposed, less an allowance for disciplinary credits. MCL 791.233b(x); MSA 28.2303(3)(x). In sentencing defendant to one hundred to three hundred years, the trial court used language which appears to describe an indeterminate sentence. MCL 769.9(2); MSA 28.1081(2). It is clear, however, that the trial court intended by its sentence to prevent defendant's release from prison under the "lifer law," MCL 791.234(4); MSA 28.2304(4). See People v Johnson, 421 Mich. 494; 364 NW2d 654 (1984). Because of the restrictions of Proposal B. what defendant in fact received is, and was intended to be, a life sentence without parole.

The Legislature has mandated life sentences for first-degree murder, MCL 750.316; MSA 28.548, and certain major controlled substance offenses, MCL 333.7401(2)(a)(i) and 333.7403(2)(a)(i); MSA 14.15(7401)(2)(a)(i) and 14.15(7403)(2) (a)(i). The so-called "lifer law" excludes persons serving the mandatory life sentences for these crimes from the jurisdiction of the parole board. MCL 791.234(4); MSA 28.2304(4). See also MCL 333.7401(3); MSA 14.15(7401)(3).

We are unable to locate any similar statutory authorization for a sentence of life without parole for an armed robbery conviction, however. While such may be a desirable public policy, it is up to the Legislature to authorize such a sentence. The Legislature is the source of a court's sentencing power. People v Moore, 51 Mich. App. 48, 54; 214 NW2d 548 (1974). As we are unable to discern any legislative authorization for the result of defendant's sentence, we must conclude that the sentence given was not valid.

In so holding, we disagree with People v Martinez, 147 Mich. App. 94; 382 NW2d 741 (1985), in which another panel of this Court concluded in part that a sentence of 100 to 150 years on an habitual offender charge given with the hope that defendant would never be released from prison was expressly authorized by statute and thus did not infringe upon the Legislature's powers, even though it effectively precluded parole. We also disagree with the similar holding in People v Rodgers, 30 Mich. App. 582, 584-585; 186 NW2d 840 (1971), which held that the effect on parole expectation of a sentence of ninety-nine to one hundred years was irrelevant.^[1]

Having concluded that the Legislature has not authorized sentences for armed robbery convictions that are, in effect, life sentences without parole, we must then decide what sentences the Legislature has authorized. The armed robbery statute clearly allows a life sentence. In such a case, defendant would be eligible for parole in ten years. Johnson, supra; MCL 791.234(4); MSA 28.2304(4). The fact that defendant is eligible for parole does not mean that he has a right to parole. Cf. Hurst v Dep't of Corrections, Parole Board, 119 Mich. App. 25, 29; 325 NW2d 615 (1982) (early parole case). While the parole board is solely responsible for granting parole, MCL 791.235; MSA 28.2305, the parole board shall not grant parole until it has reasonable assurance that the prisoner will not become a menace to society or to public safety and has satisfactory evidence regarding arrangements for the prisoner's employment, education or care, if ill or incompetent, MCL 791.233(1)(a) and (d); MSA 28.2303(1) (a) and (d). In the case of prisoners serving nonmandatory life terms who are eligible for parole after ten years, parole shall not be granted if the sentencing judge or the judge's successor files written objections. MCL 791.234(4)(b); MSA 28.2304(4)(b). If trial judges could impose sentences of one hundred to three hundred years, they would take away from the parole board and from themselves or their successors the legislatively mandated duty to evaluate a prisoner periodically to see if the passage of time has made release a reasonable option. As we have indicated, the Legislature has removed this option for certain offenses. It has not yet done so in the case of armed robbery, however desirable such a course of action may or may not be.

The remaining possibility is a sentence "for any term of years." The meaning of "any term of years" has not been extensively analyzed in this precise context. Panels of this Court, however, have upheld many lengthy sentences. In Martinez, supra, the defendant was convicted of voluntary manslaughter and sentenced as an habitual offender under MCL 769.12; MSA 28.1084, which authorizes a sentence for "life or for a lesser term" but also describes the latter sentence as one "for any term of years." Martinez approved the "long term of years" of 100 to 150 years, even though this sentence was obviously intended to exceed the defendant's life expectancy.

First-degree criminal sexual conduct is also punishable by a sentence "for life or for any term of years." MCL 750.520b(2); MSA 28.788(2)(2). Another panel of this Court in People v Crawford, 144 Mich. App. 86, 89; 372 NW2d 688 (1985), upheld concurrent sentences of 80 to 120 years for first-degree criminal sexual conduct, noting that

[f]rom a defendant's standpoint in viewing length of time to be served, there is no sentence more severe than a life sentence. A sentence of 80 to 120 years is almost certain to be longer than a defendant's life.

The Court in Crawford concluded that the purpose of the lengthy sentence was to recognize the heinous nature of the crime and tell the public that such conduct will not be tolerated. The Court was not prepared "to say that these equivalents of life sentences were an abuse of discretion" such as to shock the judicial conscience. 144 Mich App at 8990.

In Rodgers, supra at 584-585, a panel of this Court affirmed a sentence of ninety-nine to one hundred years, holding that

"any term of years" means exactly that. The trial judge may sentence a defendant to any term of years and the fact that the term of years may result in a sentence which, in terms of parole, is greater than life is irrelevant.

We believe that these cases misconstrue the phrase "any term of years." In People v Blythe, 417 Mich. 430; 339 NW2d 399 (1983), the Supreme Court considered whether the phrase "for any term of years" in the armed robbery statute required imposition of a mandatory minimum sentence. In determining that it did not, the Supreme Court concluded that the phrase referred to the maximum sentence to be imposed. 417 Mich at 434. In Johnson, supra at 497-498, the Supreme Court wrote:

The difference between a life sentence and an indeterminate sentence having a minimum and maximum term has been recognized by this Court since our decision in People v Vitali, 156 Mich. 370; 120 N.W. 1003 (1909). We observed in Vitali that if a life sentence is imposed there can be no minimum term.

Accordingly, when a statute authorizes the imposition of a sentence of "life or any term of years" it allows the imposition of a fixed sentence — life — or an indeterminate sentence — any number of years. We observed in People v Blythe, 417 Mich. 430, 434-435; 339 NW2d 399 (1983), that the Legislature viewed the phrase "life or any term of years" as descriptive of the maximum sentence only. The sentence concepts "life" and "any term of years" are mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.

If "life" and "any term of years" are mutually exclusive concepts, the Court's statement that the latter allows imposition of "any number of years" must mean "any number of years less than life."

By definition, a person cannot serve a prison sentence lasting longer than that person's life. A life term is, as a matter of law, a greater penalty than a term of years. People v McNeal, 156 Mich. App. 379, 381; 401 NW2d 650 (1986); People v Lindsey, 139 Mich. App. 412, 415; 362 NW2d 304 (1984). Therefore, it is meaningless for a person to receive a sentence longer than life. The phrase "any term of years" also cannot mean a time equal to life, as it would then be surplusage for the Legislature to have also provided for life sentences in the same statute.

All that remains, then, is a term of years less than life. In a very early case, People v Murray, 72 Mich. 10, 16-17; 40 N.W. 29 (1888), the Supreme Court wrote:

There is another feature of this case to which we wish to call special attention, and that relates to the sentence imposed. It is for 50 years, and will very likely reach beyond the natural life of the respondent, unrestrained of his liberty, and overreach by 10 or 15 years his natural life if so restrained. We see nothing in this record warranting any such sentence, and it must be regarded as excessive. It will not do to say the executive may apply the remedy in such a case. We do not know what the executive may do, and it is but a poor commentary upon the judiciary when it becomes necessary for the executive to regulate the humanity of the bench.

But the Constitution has not left the liberty of the citizen of any state entirely to the indiscretion or caprice of its judiciary, but enjoins upon all that unusual punishments shall not be inflicted. Where the punishment for an offense is for a term of years, to be fixed by the judge, it should never be made to extend beyond the average period of persons in prison life, which seldom exceeds 25 years.

Several subsequent cases have distinguished Murray as involving a fixed sentence at a time when the defendant was required to serve the sentence imposed unless pardoned, rather than the modern practice of indeterminate sentences. See, e.g., People v Burton, 396 Mich. 238, 243 n 9; 240 NW2d 239 (1976); Rodgers, supra at 585; People v Girard, 18 Mich. App. 593, 595; 171 NW2d 567 (1969). We see little difference, however, between a sentence "for a term of years, to be fixed by the judge" which must be served fully and a lengthy indeterminate sentence "for any term of years" of which a defendant must serve the minimum less disciplinary credits. Through the workings of proposal B, defendant's sentence effectively precludes any possibility of parole during his lifetime. Defendant's situation is thus much like that of the defendant in Murray.

Murray's value lies not in the absolute numbers it offers. Its recommendation of a twenty-five year cap on the prison sentence of a twenty-three-year-old defendant reflects the harshness of life when the opinion was written. More important is Murray's recognition that a sentence for a term of years should consider a defendant's life expectancy. An indeterminate sentence "for any term of years" must be one for less than life and must accordingly be fashioned with consideration of a defendant's life expectancy at the time of sentencing as determined by the trial judge.^[2]

We note that even such a sentence must also consider the sentencing guidelines and the criteria required by People v Coles, 417 Mich. 523, 550; 339 NW2d 440 (1983). While a sentence approaching a defendant's life expectancy might be appropriate and justified in many cases, such a sentence must be supported by adequate reasons on the record.

Defendant's convictions are affirmed, but we vacate defendant's sentence for armed robbery and remand for resentencing in accordance with this opinion.

M.J. KELLY, J., concurred.

R.L. TAHVONEN, J. (dissenting).

I respectfully dissent.

The majority concludes that the sentence imposed by the trial court is invalid because the majority does "not believe the Legislature has authorized a sentence of one hundred to three hundred years in prison for the offense of armed robbery." My understanding of the law constrains me to disagree.

Mr. Moore was sentenced for armed robbery. The applicable statute provides that armed robbery is "punishable by imprisonment in the state prison for life or for any term of years." MCL 750.529; MSA 28.797. The trial court sentenced Mr. Moore to a term of one hundred to three hundred years in prison. The conclusion follows, with the force and simplicity of Aristotelian syllogism, that the sentence was within the maximum authorized by the Legislature.

The majority opinion avoids the snare of the obvious by reading the statute creatively. The law says that the sentence may be for "any term of years"; the majority reads "a term of years less than life." The law grants broad discretion to the trial bench to fashion an appropriate sentence; the majority restricts that authority on the basis of considerations extraneous to the statute. The law is clear; the majority's view obscure.

Of course, the majority purports to merely "construe" or "interpret" the statute to effectuate the Legislature's intent. However, the most fundamental rule of statutory construction is that, where a statute is clear and unambiguous, the judiciary's role is to enforce, not construe. The statute here is plain: a trial court may sentence for "life or any term of years." Any term of years means a term without limitation as to duration. The assertion that the term of years must be shorter than life expectancy because no one can serve more than life misses the mark. The issue is not whether the defendant can serve the sentence, but whether the court can impose it. Likewise, the existence of the lifer law, MCL 791.234(4); MSA 28.2304(4), may prompt long indeterminate sentences but certainly does not invalidate them. Finally, although the long and indeterminate sentence may in fact exceed a life sentence as served, that assumption is premised upon speculation alone. Notwithstanding the lifer law, the inmate serving a life sentence perhaps will never be paroled. In fact, the lifer law itself may be repealed or amended. In short, the majority analysis is founded upon assumptions similar to those this Court expressly prohibits trial courts from making at sentencing. People v Humble, 146 Mich. App. 198; 379 NW2d 422 (1985), and People v Fleming, 142 Mich. App. 119, 126; 369 NW2d 499 (1985).

The majority suggests the Legislature can correct the problem by amending the statute. I suggest this Court can avoid the problem in the first place by simply applying the law as it is.

Because I am convinced judicial construction here is not warranted in the first instance, I will not discuss at length the construction adopted by the majority. It is enough to say that if "any term of years" cannot equal or exceed a particular defendant's life expectancy, every judge will be an actuary, every attorney will be a physician, and every defendant will be at death's door on sentencing day.

I would affirm.

NOTES

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

[1] Such a sentence, of course, violates the two-thirds rule of People v Tanner, 387 Mich. 683, 690; 199 NW2d 202 (1972).

[2] In People v Fleming, 428 Mich. 408, 427; 410 NW2d 266 (1987), the Supreme Court's majority opinion said in its footnote 24:

The use of "good time credits" was considered in the Task Force Report on Prison Overcrowding, n 9 supra [pp 419-420], as part of the solution to overcrowding:

"The overcrowded conditions of our state prisons affirm the necessity for sentencing reform. During the past ten years, the average length of prison terms in this state has risen from 22 months to in excess of 32 months. This dramatic increase in sentence length, when coupled with the general increase in the absolute number of commitments to the state system, is directly responsible for the majority of the overcrowding we are now experiencing.

"Thus the recommendations within this section address the issue of sentencing. The first two recommendations directly address sentencing reform, while the last addresses good-time credits that are applied to the minimum and maximum sentences of convicted offenders."

We note the similarity in factoring the OPEA and "good time" into a defendant's sentence to circumventing the parole provisions of the "lifer law," MCL 791.234(4); MSA 28.2304(4) by sentencing defendants to a term of years that exceeds life and precludes parole. A sentence of one or more centuries in prison violates the spirit and intent of the indeterminate sentencing statutes. The Legislature has recognized that a defendant may be rehabilitated in prison and has vested in the parole board the power to release a rehabilitated prisoner once the minimum sentence has been served. MCL 791.231 et seq; MSA 28.2301 et seq. Any changes in the parole provisions of the "lifer law" should be made by the Legislature, not the judiciary.

This was dicta but we find it persuasive.