People v. Benjamin

101 Mich. App. 637 (1980) 300 N.W.2d 661

PEOPLE
v.
BENJAMIN

Docket No. 47024.

Michigan Court of Appeals.

Decided November 20, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

Myron E. Sanderson, for defendant on appeal.

Before: DANHOF, C.J., and BRONSON and CYNAR, JJ.

CYNAR, J.

Following a jury trial, defendant was found guilty of carrying a concealed weapon, MCL 750.227; MSA 28.424, and acquitted of a charge of aiding and abetting the crime of larceny in a building, MCL 750.360; MSA 28.592. Defendant was sentenced to four to seven years imprisonment and now appeals as of right.

Barbara Gumbert, manager of the Bottom Half Clothing Store in the Westwood Mall in Jackson, received a shipment of 35 Huckapoo shirts on February 14, 1979. After she unpacked and ticketed them, they were put on special hangers and placed on a rack near the front entrance of the store. No other mall stores carried that type of shirt. At approximately 8:30 p.m., defendant and a companion, later identified as Marketta Landrum, entered the store and began looking at merchandise, including the shirts. They both tried on jackets, and defendant asked Ms. Gumbert to put one on hold. Ms. Gumbert went to the back room and, when she returned, defendant filled out a form in order to purchase the jacket through the Community Action Program. While she was away from the merchandise area, there was no other salesperson on the floor assisting her, and defendant and Landrum were the only customers in the store. Ms. Gumbert had given the two women store bags, upon their request, and, after a brief conversation, they left. When she began counting the merchandise, she noticed six Huckapoo shirts and hangers missing.

After the mall security was alerted, Ms. Gumbert and security officer Jim Schmall went to Kinney's shoe store and waited for the two women to come out. They followed them to the mall entrance, and another security officer, John Rogus, stopped them at entrance. Ms. Gumbert asked Marketta Landrum whether she could look inside the Bottom Half bag she was carrying, and, when she opened it, she saw the shirts. Landrum denied taking them, and defendant "didn't see why she had to be with her at the time".

After the police arrived, they escorted defendant, Landrum, and Ms. Gumbert into a room inside Alladin's Castle. One of the officers, Jackson County Deputy Norman Purucker, found a razor knife and a jackknife in defendant's purse. The jackknife was open and was approximately eight to ten inches long. Only two of the six shirts found in the bag still had tags. Ms. Gumbert admitted, during cross-examination, that she did not see the jackknife until it was no longer in defendant's purse.

Mark Williston, assistant manager at Kinney's shoe store, testified that, after he finished waiting on the defendant, he checked one of the handbags at which she had been looking because it felt "heavier than usual". When he opened it, he found plastic hangers with the logo "Bottom Half" on the top of the hanger. Williston left the store and, after he spoke with the salesperson at the Bottom Half, went to Alladin's Castle. As he turned the bag over to deputy Purucker, he saw him holding a jackknife. He later discovered the missing shirt tags in his store.

James Schmall observed the Jackson County deputy search the two women and take two knives from one of their purses. He did not remember, however, from which purse they were taken.

Deputy Purucker testified that, after he arrived at the mall, he asked defendant and Landrum their names and addresses. He then asked defendant for permission to search a purse she was holding, and she consented after the officer had advised her that she could refuse his request. He found a large, pearl-handled jackknife and a Stanley utility knife. When he showed her the knives, she said, "I carry them when I'm walking down Frances Street, never know when I might need them". He did not give her a Miranda^[1] warning prior to her making the statement, and he denied that he asked her any questions about the alleged theft. He also denied that he had any reason to suspect that defendant was carrying any concealed weapon when he searched her purse. Finally, he characterized her statements as spontaneous since she made them as soon as he held up the knives.

Jackson County Deputy Sheriff William Tedder had accompanied deputy Purucker to the mall. He corroborated Purucker's testimony regarding the discovery of the knives in defendant's purse and her statements regarding why she carried them.

Marketta Landrum denied that she and defendant had any prior conversation about stealing anything at the mall and testified that she did not tell defendant that she took the shirts.

The trial court had denied defendant's motion to dismiss the aiding and abetting count made at the close of the prosecution's case since there was "some evidence" from which a reasonable person could conclude that defendant acted as a decoy in order to assist her companion.

The trial court had also ruled that, based upon the consensual nature of the search, the knives were admissible into evidence. In addition, the court ruled that defendant's statements were voluntary since they were not made in response to any police interrogation and, therefore, Miranda was inapplicable.

Defendant first argues that the trial court erred in denying defendant's motion to dismiss the charge of carrying a concealed weapon (CCW). Defendant claims that the information was deficient in failing to specify that the knives found in defendant's purse were carried for either an offensive or defensive purpose. Where statutory language is used in an information in charging an offense, it is sufficient if it adequately informs a defendant of "the nature and character" of the charged offense. People v Lightstone, 330 Mich. 672; 48 NW2d 146 (1951), see also, People v Adams, 389 Mich. 222; 205 NW2d 415 (1973). The language used in the information adequately informed defendant of the nature and character of the charged offense.

We further find no violation of defendant's rights to equal protection and due process of law arising from the prosecution's decision to charge defendant with larceny in a building, a felony, as opposed to simple larceny, a misdemeanor. The decision to charge defendant with the former was a proper exercise of prosecutorial discretion and not constitutionally infirm. People v Evans, 94 Mich. App. 4; 287 NW2d 608 (1979), People v Birmingham, 13 Mich. App. 402; 164 NW2d 561 (1968).

As defendant's sentence was within permissible statutory limits, MCL 750.227; MSA 28.424 and MCL 769.10; MSA 28.1082, and since the trial court considered no improper criteria in sentencing defendant, we decline to disturb the trial court's decision with respect to the sentence meted out, and we likewise reject defendant's argument that her sentence constituted cruel and unusual punishment as being grossly disproportionate to the offense (CCW and second felony offender). People v Lorentzen, 387 Mich. 167; 194 NW2d 827 (1972), People v Cox, 53 Mich. App. 314; 218 NW2d 843 (1974), lv den 392 Mich. 803 (1974).

Next, we address defendant's contention that the trial court erred in denying her motion for a directed verdict of acquittal on the charge of aiding and abetting the crime of larceny in a building. Defendant, as noted hereinbefore, ultimately was acquitted of that charge by the jury. Although not expressly argued by defendant in her brief on appeal, presumably the prejudice which she contends followed from the denial of the motion for a directed verdict was the consideration by the jury of a charge unwarranted by the proofs which substantially decreased defendant's chances of acquittal on any valid charge because of the possibility of a compromise verdict. People v Vail, 393 Mich. 460, 464; 227 NW2d 535 (1975).

It is proper to deny a motion for a directed verdict of acquittal if, considering the evidence presented by the prosecution up to the time the motion is made in a light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were established beyond a reasonable doubt. People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), People v Walker, 93 Mich. App. 189, 196; 285 NW2d 812 (1979). Our review of the prosecution's proofs convinces us that the trial court's ruling was correct. We find the case at bar on all fours with our Supreme Court's recent decision in People v Thomas, 407 Mich. 936; 285 NW2d 658 (1979), although we note that the precise question raised by the defendant in Thomas was the sufficiency of the evidence in support of a verdict of guilty following a bench trial, whereas here, we review the lower court's denial of a motion for a directed verdict of acquittal.

The evidence offered during trial established that defendant and Marketta Landrum entered the Bottom Half Clothing Store and that, while Landrum was looking around other parts of the store, defendant talked to a clerk concerning a purchase and had the clerk fill out a form from the Community Action Program for the purchase of an item which required the clerk to go into the back room of the store and obtain the store's stamp. Sometime during this exchange, Landrum was able to take six shirts, hangers and all, and place them in her purse. Prior to leaving, both defendant and Landrum asked the clerk for empty Bottom Half bags which the clerk supplied to them. Defendant and Landrum then went to the Kinney shoe store where, while Landrum was looking at certain handbags in the store, defendant had a clerk fit her for a pair of shoes and again fill out a purchase requisition from the Community Action Program. While the clerk was filling out this form, defendant went over to talk with Landrum by the handbags. Then, both left the store together. Upon leaving the shoe store, the clerk in the shoe store saw a handbag, which had been on display in that store, lying on the floor. It contained several hangers from the Bottom Half store. The clerk from the Bottom Half store, who had discovered the theft and become suspicious of defendant and Landrum, had followed them to the shoe store. There, she observed defendant and Landrum leaving the shoe store with Landrum now carrying a Bottom Half bag which, it developed, contained the six shirts, absent the hangers, that had just been taken from the Bottom Half store. Four of the six shirts no longer had tags when found in the Bottom Half bag which Landrum was carrying. Moreover, defendant was in possession of a razor knife peculiarly suited for removing such price tags, as well as a jackknife also capable of performing such a task.

Reasonable inferences which could be drawn from this evidence are that defendant distracted the clerk at the Bottom Half in order to facilitate the theft of the shirts by Landrum and then, later, similarly distracted the clerk at the Kinney shoe store in order to assist Landrum in concealing the stolen shirts and in getting rid of the hangers. So, too, circumstances point to defendant's role in removing the tags from the shirts or, at least, aiding that action. Thus, we conclude, much as did the Court in Thomas, that a rational trier of fact could find that all the elements of aiding and abetting the crime of larceny in a building were established beyond a reasonable doubt. No error or prejudice to defendant resulted from the trial court's denial of defendant's motion for directed verdict.

Defendant further predicates reversible error upon the admission into evidence of the two knives found in her purse by deputy Purucker, arguing that they were the fruits of an illegal search and subject to the operation of the exclusionary rule. The prosecution argues that the consent obtained from defendant prior to the search of her purse vitiates any claim of illegality stemming from the search.

We agree with the prosecution, for we find that, under the totality of the circumstances extant at the time the consent was obtained, such consent was given voluntarily, and the search was, therefore, valid. People v Turner, 62 Mich. App. 467, 470-473; 233 NW2d 617 (1975), lv den 395 Mich. 799 (1975), People v Ricky Smith, 85 Mich. App. 32, 37, 46; 270 NW2d 697 (1978), see also, People v Reed, 393 Mich. 342, 360-366; 224 NW2d 867 (1975), cert den 422 U.S. 1044, 1048; 95 S. Ct. 2660, 2665; 45 L. Ed. 2d 696, 701 (1975). Accordingly, the knives were properly allowed into evidence.

As a final argument, defendant contends that her admission that she carried the knives found in her purse for purposes of self-protection was obtained by means of an impermissible "interrogation" conducted in violation of Miranda and its progeny. It was admitted by the arresting sheriff's deputies that defendant was not informed of her Miranda rights prior to her making the statement in question.^[2] The prosecution, however, contends that no "interrogation" took place and that defendant merely uttered a spontaneous, in-custody declaration which does not fall within the purview of the Miranda protections.^[3] The question for decision is whether the police actions in this case constituted "interrogation" under Miranda. As noted hereinbefore, the police activity claimed to be tantamount to interrogation occurred when deputy Purucker removed the knives from defendant's purse and held them up to her.

In Rhode Island v Innis, 446 U.S. 291; 100 S. Ct. 1682; 64 L. Ed. 2d 297 (1980), the United States Supreme Court addressed the question of what constitutes "interrogation" under Miranda. After noting that not all statements obtained by police after a person has been taken into custody are considered products of "interrogation" and that volunteered statements of any kind are not barred by the Fifth or Fourteenth Amendments, the Court indicated that "interrogation", as contemplated in Miranda, must reflect a measure of compulsion above and beyond that inherent in custody itself. The Court continued:

"We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ``interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." 100 S. Ct. 1689-1690. (Footnotes omitted.) (Emphasis in the original.)

We, therefore, must measure the police actions in the case at bar against the above standard in order to determine whether it was the "functional equivalent" of interrogation.

In Innis, the police had arrested the suspect in an area near a school for handicapped children. Enroute to the police station, two patrolmen conversed regarding their fears that a missing shotgun (the weapon used by Innis to commit two robberies, as well as a murder) might be found by a handicapped child who would possibly injure or kill himself or herself. Overhearing this conversation, Innis told the police he would take them to the shotgun. The Supreme Court concluded that the officers' conversation did not amount to interrogation, as it was not reasonably likely to elicit an incriminating response from Innis.

Turning to the facts of the instant case, we likewise conclude that the deputy's isolated act of holding up the knives in front of defendant was not a practice which the officer should have known would be reasonably likely to elicit an incriminating response.^[4] Defendant's response was an unforeseeable result of the brief, unembellished gesture of deputy Purucker. This is particularly true since the response related to an offense other than that which the officer was investigating. Thus, his act was not the functional equivalent of interrogation, and defendant's spontaneous declaration was admissible into evidence.

To summarize, we find no error necessitating remand or reversal in this case, and, therefore, we affirm defendant's conviction and sentence.

Affirmed.

NOTES

[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).

[2] In Michigan, Miranda warnings are required to be given once an investigation has focused on a particular suspect, even if the suspect is not in custody. Reed, supra, People v Ridley, 396 Mich. 603; 242 NW2d 402 (1976), People v Brannan, 406 Mich. 104, 118; 276 NW2d 14 (1979).

[3] See People v Terry, 86 Mich. App. 64, 67-68; 272 NW2d 198 (1978), People v Nard, 78 Mich. App. 365, 377-378; 260 NW2d 98 (1977).

[4] There is nothing in the record to indicate that deputy Purucker was aware of any unusual susceptibility of the defendant herein to any particular form of persuasion, whether by word or deed, or that the officer perceived defendant to be unusually disoriented or upset at the time he showed her the knives. Both considerations are factors which Innis, supra, intimates may affect the determination as to whether a police practice constitutes "interrogation" under Miranda.