People v. Pena

Michigan Court of Appeals

People v. Pena

292 N.W.2d 141, 96 Mich. App. 101, 1980 Mich. App. LEXIS 2536

CourtMichigan Court of Appeals

DecidedJanuary 16, 1980

DocketDocket No. 78-1927

StatusPublished

This text of 292 N.W.2d 141 (People v. Pena) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Pena, 292 N.W.2d 141, 96 Mich. App. 101, 1980 Mich. App. LEXIS 2536 (Mich. Ct. App. 1980).

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Opinion

Per Curiam.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. Thereafter sentenced to a prison term of 15 to 40 years, defendant appeals following this Court’s grant of a motion for delayed appeal.

At trial defendant claimed he did not have the requisite specific intent to commit the crime of robbery because he was so intoxicated from alcohol and mescaline. To this end, defendant testified that he had never robbed anyone before. On cross-examination, defendant denied committing a prior robbery on September 18, 1974, with his brother Robert Puente and Lee Lerma. The prosecution called Robert Puente and Lee Lerma in rebuttal. Their testimony indicated that defendant dropped [103]*103them off in his car before the September 18, 1974, robbery and picked them up afterwards, and that defendant received some of the proceeds of the robbery, but both denied that defendant participated in said robbery. Also, there was no testimony that defendant knew that a robbery was going to be or had been committed.

Admission of this testimony was error because it did not tend to directly disprove defendant’s statement. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). Substantial evidence that defendant committed the prior robbery was lacking. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

Additionally it was error to allow the prosecutor to "refresh” the memory of Robert Puente when Puente denied that his memory needed refreshing. Battle Creek Food Co v Kirkland, 298 Mich 515, 527; 299 NW 167 (1941). The prosecutor could not have impeached Puente with a prior inconsistent statement, since Puente was the prosecutor’s witness, whom the prosecutor had no obligation to call. People v White, 401 Mich 482; 257 NW2d 912 (1977). Puente was not a hostile witness, as the prosecutor could hardly have been surprised when defendant’s brother, who had already testified for defendant, declined to implicate defendant in a prior robbery. People v White, supra. Nor are these errors harmless beyond a reasonable doubt. They affected the credibility of defendant’s contention that he lacked the specific intent to commit the crime.

Resolution of the foregoing being dispositive, discussion of appellant’s remaining allegations of error is rendered unnecessary. Moreover, we find same to be without merit.

Reversed and remanded for a new trial.

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Per Curiam.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. Thereafter sentenced to a prison term of 15 to 40 years, defendant appeals following this Court’s grant of a motion for delayed appeal.

At trial defendant claimed he did not have the requisite specific intent to commit the crime of robbery because he was so intoxicated from alcohol and mescaline. To this end, defendant testified that he had never robbed anyone before. On cross-examination, defendant denied committing a prior robbery on September 18, 1974, with his brother Robert Puente and Lee Lerma. The prosecution called Robert Puente and Lee Lerma in rebuttal. Their testimony indicated that defendant dropped [103]*103them off in his car before the September 18, 1974, robbery and picked them up afterwards, and that defendant received some of the proceeds of the robbery, but both denied that defendant participated in said robbery. Also, there was no testimony that defendant knew that a robbery was going to be or had been committed.

Admission of this testimony was error because it did not tend to directly disprove defendant’s statement. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). Substantial evidence that defendant committed the prior robbery was lacking. People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978).

Additionally it was error to allow the prosecutor to "refresh” the memory of Robert Puente when Puente denied that his memory needed refreshing. Battle Creek Food Co v Kirkland, 298 Mich 515, 527; 299 NW 167 (1941). The prosecutor could not have impeached Puente with a prior inconsistent statement, since Puente was the prosecutor’s witness, whom the prosecutor had no obligation to call. People v White, 401 Mich 482; 257 NW2d 912 (1977). Puente was not a hostile witness, as the prosecutor could hardly have been surprised when defendant’s brother, who had already testified for defendant, declined to implicate defendant in a prior robbery. People v White, supra. Nor are these errors harmless beyond a reasonable doubt. They affected the credibility of defendant’s contention that he lacked the specific intent to commit the crime.

Resolution of the foregoing being dispositive, discussion of appellant’s remaining allegations of error is rendered unnecessary. Moreover, we find same to be without merit.

Reversed and remanded for a new trial.

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292 N.W.2d 141, 96 Mich. App. 101, 1980 Mich. App. LEXIS 2536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pena-michctapp-1980.

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