People v. Williams

• Decision Date: 12 October 1988
• Docket Number: Docket No. 97724
• Citation: 429 N.W.2d 649,171 Mich.App. 234
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Allen WILLIAMS, Defendant-Appellant. 171 Mich.App. 234, 429 N.W.2d 649
• Court: Court of Appeal of Michigan — District of US

Page 649

429 N.W.2d 649

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Allen WILLIAMS, Defendant-Appellant.

Docket No. 97724.

171 Mich.App. 234, 429 N.W.2d 649

Court of Appeals of Michigan.

Submitted March 3, 1988.

Decided Sept. 7, 1988.

Released for Publication Oct. 12, 1988.

[171 MICHAPP 235] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief, Criminal Div., and Jeffrey Caminsky, Asst. Pros. Atty., for the people.

Suzanne Carol Schuelke, Detroit, for defendant-appellant on appeal.

Before HOOD, P.J., and J.H. GILLIS and BREIGHNER, ^* JJ.

J.H. GILLIS, Judge.

Following a bench trial, defendant was convicted of two counts of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and two counts of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to concurrent mandatory life sentences for the murders to be served consecutively to his mandatory two-year prison sentence for felony-firearm. Defendant moved for a new trial, claiming that one of the two felony-firearm convictions which appeared on his judgment of sentence should be struck, that the trial court did not make specific findings of fact and that defense counsel [171 MICHAPP 236] was ineffective because he failed to convey a plea bargain offer to defendant. The trial court granted defendant's motion to strike one felony-firearm conviction but otherwise denied defendant's motion. Defendant appeals as of right. We affirm.

In this case, Van Robin Hooper and Charles David Stanley were killed in Hooper's Volvo. Hooper, seated in the driver's seat, was shot four times in the head (i.e., once in the ear, chin, forehead and right side of the head) and once in the neck. All the shots travelled from right to left. Two of the shots were close range (i.e., less than eighteen inches). Stanley, seated in the passenger seat behind Hooper, was shot eight times, four times in the head (once in the ear, chin, temple and eye) and once in each hand, his chest and back. One shot was at close range and two of the wounds may have been reentry wounds. The shots again travelled from right to left. Twelve nine-millimeter casings were found at the scene.

James Scamp, who lived on the road where the bodies were discovered, testified that at approximately 1:10 a.m. on April 6, 1985, he heard four or five back-firing sounds. He then heard a roaring car, gunning its engine. Hooper's Volvo had its rear flashers on, but the other car on the street did not have its lights on. The street was a dead-end street and Hooper's Volvo was facing in the direction of the dead end. Scamp saw that the other car was an older dark-colored two-door Grand Torino with a scoop hood. Scamp observed a person slowly jogging from the passenger side of the Volvo to the passenger side of the Grand Torino. The person had shoulder-length light brown hair and was wearing a thin dark-colored jacket and blue jeans. Scamp believed the person was a female because of the hair, the way the body was proportioned and the jog. Because Scamp saw a white reflection on [171 MICHAPP 237] the wet pavement, he believed that the person was wearing white-bottomed oxfords or tennis shoes. That person got in the passenger side of the Torino and the Torino drove off without its lights on. Once the Torino reached the main street, its lights came on. The bodies were discovered the next day and, when the police came to Scamp's door, he told them what he had seen.

Defendant first claims that the trial court erred when it failed to suppress an April 10, 1985, statement he gave to the police. Defendant claims that, because he was the focus of the police investigation or was in custody when he gave the statement, he was entitled to be informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Recently, our Supreme Court rejected the focus test and adopted the custody test. People v. Hill, 429 Mich. 382, 415 N.W.2d 193 (1987). To determine whether the defendant was in custody at the time of the interrogation, the totality of circumstances must be examined. People v. Marbury, 151 Mich.App. 159, 162, 390 N.W.2d 659 (1986). The key question is whether the defendant could have reasonably believed that he was not free to leave. Hill, supra, 429 Mich. at p. 399, 415 N.W.2d 193; Marbury, supra, 151 Mich.App. at p. 162, 390 N.W.2d 659. The trial court's decision regarding the admissibility of a statement will not be reversed unless it is clearly erroneous. Id. We note that this Court defers to the trial court's superior ability to assess the credibility of the witnesses. People v. Williams, 163 Mich.App. 744, 749-750, 415 N.W.2d 301 (1987).

Detective Sergeant David Early testified that he went to defendant's house because other people he had questioned told him that defendant might have information about the crime. Defendant was sleeping and his mother woke him. When defendant arrived downstairs, Early asked defendant to [171 MICHAPP 238] accompany him to the station. Defendant agreed. Defendant was probably searched before entering Early's unmarked police car. Defendant was not handcuffed. After questioning defendant, it became clear to Early that defendant may have been involved in the crime. Defendant was arrested and informed of his Miranda rights. Defendant waived his rights and continued with his statement. Early was impeached with a computer form which indicated that defendant was arrested at his residence.

Defendant agreed that he accompanied Early and his partner to the police station. Defendant testified that Early told him that he would not be charged because he was just a witness. Defendant testified that he believed he was under arrest when he left his house. Defendant claimed that Early told him that he was under arrest when he left his house.

The court listened to a tape of the conversation between defendant and Early. The court held that defendant was not the focus of the police investigation until he made statements incriminating himself and was not in custody until he was read his rights. We cannot say that the trial court's findings were clearly erroneous. See and compare Marbury, supra.

Defendant also claims that the trial court's findings of fact were insufficient because it declined to decide whether defendant was the principal or an aider and abettor. MCR 2.517(A). While the prosecutor argued that defendant was either the principal (i.e., the shooter) or an aider or abettor (i.e., provided the gun and drove the getaway car with knowledge that Mark Sennett intended to kill the victims), defendant claimed that he was merely present when the shootings occurred and did not know that Sennett intended to kill the victims. Because this was a contested matter, the trial [171 MICHAPP 239] court should have decided whether defendant was the principal or an aider and abettor. MCR 2.517(A)(2). However, in light of the fact that the Legislature abolished the distinction between aiders and abettors and principals, M.C.L. Sec. 767.39; M.S.A. Sec. 28.979, we believe that any such error is harmless.

Defendant argues that the error is not harmless because it may affect his chances for a commuted sentence. Defendant relies on People v. Norman, 148 Mich.App. 273, 384 N.W.2d 147 (1986). We believe that Norman is distinguishable and, therefore, decline to remand for further fact-finding.

Further, defendant claims that the trial court erred when it denied his request for a new trial, given that defense counsel failed to convey a plea bargain offer to him. In an affidavit defense counsel Martin Marcus stated that, at the beginning of trial, the prosecutor offered defendant a plea to second-degree murder with a fifteen-year prison sentence. Marcus stated that he did not relay the offer to defendant because he believed that defendant stood a good chance of acquittal.

At a hearing on the motion for a new trial, defendant testified that, one month before trial, he received an offer to plead to second-degree murder in exchange for a twenty-year sentence. Upon Marcus' advice, defendant declined the offer. Defendant indicated that he told Marcus in the first week he met him that he would accept a plea if the sentence were low enough. Defendant first indicated that he told Marcus that five years would be low enough. Later in his testimony defendant claimed that five, ten or fifteen years would be low enough. At defendant's sentencing, Marcus mentioned a plea bargain, but defendant did not know the details. Defendant at first testified that Marcus may have talked to him in the lockup during trial; however, on rebuttal, defendant testified[171 MICHAPP 240] that Marcus did not see him in the lockup. Defendant stated that he would have pled guilty to second-degree murder in exchange for a fifteen-year sentence.

Marcus testified that defendant declined to take the first offer. Marcus then testified that on the second day of trial there was a break in the proceedings. Marcus walked over to the prosecutor's table where Mr. Agacinski, the prosecutor, and Early were sitting. Somehow, the discussion concerning a plea came up and Agacinski indicated that a plea to second-degree murder in exchange for a fifteen-year sentence might be possible; however, Agacinski indicated that prosecutor Kenny, his superior, would have to approve such a plea. Then, the judge came back into the courtroom. Marcus could not recall if he had mentioned the offer to defendant, although he conceded that there was sufficient time to do so. Marcus stated that he believed that he had conveyed the offer to defendant but became unsure when defendant acted surprised when he mentioned the offer at sentencing.

Following the first plea offer, Marcus conceded that he had gone to Kenny to see if he could get a better deal for defendant. Kenny refused to lower the original...