People v. Rutherford

364 N.W.2d 305, 140 Mich. App. 272

• Court: Michigan Court of Appeals
• Decided: January 23, 1985
• Docket: Docket 71497
• Status: Published

Opinions

P. Nicolich, JJ.

Following a jury trial, defendant was convicted as charged of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to prison for 25 to 40 years, and appeals as of right.

Defendant first argues that the trial court erred in finding that his prearraignment statement was voluntary and admissible. Defendant was arrested on Friday evening, July 16, 1982, and arraigned on Monday, July 19, 1982. On July 18, at about 6:00 p.m., after a detective talked with the defendant and had informed him of his Miranda* 1 rights, the defendant agreed to make both a verbal and a taped statement. Both defendant’s mother and sister testified that they attempted to see defendant in jail over the weekend but were denied access. Defendant, as well as other witnesses, testified that, just prior to his arrest, defendant consumed a large quantity of beer and consumed 1-1/4 grams of "THC”. Defendant did not recall making a recorded statement. The trial court compared defendant’s taped statement with the account of the victim to determine if defendant was hallucinating when he made his statements. The court found defendant’s description of the events "practically identical” to the description related by the victim.

MCL 764.13; MSA 28.871(1) and MCL 764.26; MSA 28.885 prohibit unnecessary delays between arrests and arraignments. A confession made during prearraignment detention should not be excluded unless the delay was used as a tool to extract a confession. People v Stinson, 113 Mich App 719, 730; 318 NW2d 513 (1982). There is no indication that delay in this case was used as a tool to extract a confession. Rather, considering the large amounts of drugs and alcohol defendant had consumed, it was reasonable to wait until he had recovered from the effects of those drugs before arraigining him. Furthermore, the detective fully complied with Miranda. We have no doubt that the court correctly determined that defendant’s statement was voluntary. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974).

Defendant next contends that the trial court should not have admitted into evidence photographs of the victim taken after the crime, because they were irrelevant and prejudicial. The trial court ruled that the photographs were probative of the issue of the complainant’s credibility and that they were not so gruesome as to be prejudicial. Although the photographs were irrelevant as to the elements of armed robbery, they established that the complainant had been injured sufficiently to bring the crime within the statute providing for a two-year minimum if an aggravated assault or serious injury is inflicted in the course of an armed robbery, as the prosecutor argued. MCL 750.529; MSA 28.797. This Court has upheld admission of photographs under similar circumstances. People v Jackson, 119 Mich App 138; 326 NW2d 392 (1982). It was not reversible error in this case to admit the photographs.

Defendant next challenges the trial court’s instructions on the dangerous-weapon element of armed robbery. The trial court’s instruction was substantially the same as CJI 18:1:01. Defendant made no objection at trial. Reversible error may be found in the absence of an objection where the charge omits an essential element of the offense. People v Rivera, 120 Mich App 50; 327 NW2d 386 (1982). The evidence at trial indicated that defendant had a folding knife, showed the victim the six-inch handle of the knife, and threatened to cut her throat. Although she did not see the blade, we think this was sufficient evidence to satisfy the armed robbery statute. The defendant certainly used the knife in a manner to induce the reasonable belief that the knife was indeed a dangerous weapon. People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983), cert den — US —; 104 S Ct 2180; 80 L Ed 2d 561 (1984).

Defendant also contends that the trial court erred in instructing the jury that the exact time at which the victim was assaulted was immaterial as long as defendant had the intent to steal her money at the time of the assault. Defendant argues the assault did not occur until after he had found the money in the victim’s purse. This argument is without merit, as defendant’s assault of the victim prevented her from regaining her purse. People v LeFlore, 96 Mich App 557, 561; 293 NW2d 628 (1980), lv den 409 Mich 927 (1980).

Finally, defendant argues that his sentence was excessive, in light of the fact that he is a 17-year-old first-time adult offender. Defendant suspects the trial court wrongly relied on his juvenile record since he was without counsel during one of his two breaking and entering juvenile convictions.

The sentencing judge commented that an armed robbery of "a little old lady living alone in her house * * * should be discouraged”. He said he was imposing the sentence for defendant’s own rehabilitation and for the protection of the community. The presentence report referred to both juvenile convictions, although defendant recalled only one, and it is unclear whether the judge relied on them in passing his sentence.

Defendant was sentenced prior to People v Coles, 417 Mich 523; 339 NW2d 440 (1983), so the trial judge was not required to state specific reasons for the length of the sentence he imposed. The reasons which the judge did give are in accord with the criteria set forth in Coles to be used in determining an appropriate sentence. 417 Mich 550.

Defendant’s sentence was higher than that recommended by the sentencing guidelines, but the guidelines were not mandatory at the time of defendant’s sentence. Defendant’s sentence is high, but it does not shock our conscience and, according to Coles, our review of sentences is limited to determining whether the trial court abused its discretion to the extent that it shocks our conscience. Coles, supra, p 550.

Affirmed.

Mackenzie, J., concurred.

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