People v. Dixon , 99 Mich. App. 847 ( 1980 )

99 Mich. App. 847 (1980) 298 N.W.2d 647

PEOPLE
v.
DIXON

Docket No. 45428.

Michigan Court of Appeals.

Decided September 3, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.

Before: BASHARA, P.J., and D.C. RILEY and E.A. QUINNELL,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of assault with intent to rob while being armed, MCL 750.89; MSA 28.284, and appeals of right.

Prior to trial, the defendant moved to suppress evidence of two prior convictions. The court ultimately ruled that evidence of the two prior convictions could be shown if defendant testified, but only as unspecified felonies for impeachment purposes. The ruling was erroneous, People v Jones, 92 Mich. App. 100; 284 NW2d 501 (1979), People v Garth, 93 Mich. App. 308; 287 NW2d 216 (1979).

Accordingly, we reverse the defendant's conviction and remand for a new trial. We note the recent amendment to MRE 609(a)(2), which requires that the trial court place on the record its consideration of the Crawford^[1] factors.

We suggest to the trial court that, on retrial, it confine its definition of dangerous weapon to CJI 17:4:03, deleting the word "knives". Given the somewhat equivocal character of the pocket knife involved in this incident, and with the abundant (albeit disputed) proof as to the use of the pocket knife, there can be no harm in being scrupulously careful in framing the instructions to refrain from giving the jury the impression that one of the elements of the offense had been established as a matter of law.

We also suggest that the prosecutor carefully instruct his witnesses to refrain from giving any testimony as to the defendant's assertion of his right to remain silent in order to avoid any reversible error, People v Parks, 57 Mich. App. 738; 226 NW2d 710 (1975). Parks remains as an accurate statement of applicable Michigan law, unless our Supreme Court reexamines principles enunciated in People v Bobo, 390 Mich. 355; 212 NW2d 190 (1973), in light of Jenkins v Anderson, ___ US ___; 100 S. Ct. 2124; 65 L. Ed. 2d 86 (1980).

Defendant also contends that the court reversibly erred by refusing to suppress a toy gun seized from the defendant at the time of arrest. We disagree. Although the gun was not actually used in the assault, it was relevant and admissible as reflective of defendant's specific intent and as part of the res gestae of the crime. People v Castillo, 82 Mich. App. 476; 266 NW2d 460 (1978). Finally, defendant claims the court erred in finding that the prosecution exercised due diligence in attempting to locate several res gestae witnesses. Failure to produce the unknown bystanders was excusable. People v Carter, 87 Mich. App. 778, 785; 276 NW2d 493 (1979). However, the trial testimony was such that, following remand, the police should make additional efforts to procure the attendance of Manny Wright.

Reversed and remanded for new trial.

NOTES

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

[1] People v Crawford, 83 Mich. App. 35; 268 NW2d 275 (1978).