People v. Turner

Citation213 Mich.App. 558,540 N.W.2d 728
Decision Date22 September 1995
Docket NumberDocket Nos. 133436
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie TURNER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard INGRAM, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry JOHNSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ceko McDONALD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bobby HALL, Defendant-Appellant. to 133438, 133563 and 133564.
CourtCourt of Appeal of Michigan (US)

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Carolyn M. Breen, Assistant Prosecuting Attorney, for the people.

Neil J. Leithauser, Detroit, for Willie Turner.

John B. Payne, Jr., Dearborn, for Richard Ingram.

Douglas Hamel, Detroit, for Henry Johnson.

Shantz & Booker, P.C. by Ted C. Farmer, Bloomfield Hills, for Ceko McDonald.

State Appellate Defender by Susan M. Meinberg, Detroit, for Bobby Hall.

Before JANSEN, P.J., and FITZGERALD and LAMB, * JJ.

PER CURIAM.

In these consolidated appeals, defendants were charged and convicted of offenses arising from the November 11, 1989, robbery and shooting death of Rauheem Wells in the City of Detroit. On the night in question, defendants (members of the "Hit Boys Only" gang) met at defendant Ingram's house on the west side of Detroit with the purpose of going to the east side to rob people of their jackets. Defendant Johnson and at least one other man were armed with automatic weapons. While defendants Johnson, Turner, Hall, and Ingram and Johnson's girl friend, Ravonne Brown, drove in a stolen white Toyota, defendant McDonald walked with Herbert Whitty 1 and Shawn Harris to the parking lot of a nearby senior citizens' complex. After defendant McDonald assisted Harris in the armed robbery of Larry Patton whereby they stole his Plymouth from the parking lot, the group traveled to the east side in the two stolen cars.

In the vicinity of City Airport, Harris robbed a man of his jacket. On returning to the west side, the two cars stopped after the defendants observed Rauheem Wells jogging through a parking lot. Hall, Johnson, 2 and Turner approached the victim and Ingram was a lookout. McDonald and Whitty also approached the scene to assist in the armed robbery. After Hall, Turner, and Johnson hit the victim, Johnson took the victim's goose down jacket and Hall took the victim's shoes. As the others were returning to the cars, Ingram called out to Johnson, "Come on, Lamar, come on." At that point, Johnson stated, "He heard my name, and I got to kill him," and proceeded to fire four shots into the victim. The victim died of multiple gunshot wounds, including two fatal shots to the head. After the shooting, Johnson, Ingram, and Hall returned to the car and told Ravonne Brown that "we shot him." Afterwards, the group returned to Johnson's house where Johnson, Ingram, and McDonald burned the victim's identification card.

The defendants were all charged with first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, conspiracy to commit armed robbery, M.C.L. § 750.157a; M.S.A. § 28.354(1), and one count of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, arising from the robbery and death of the victim. Defendants Johnson and Ingram were also charged with possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and defendant McDonald was charged with additional counts of armed robbery involving Patton's car and the coat of the unknown male.

Defendants Turner and Hall were tried jointly by separate juries. Both Turner and Hall were convicted of first-degree felony murder, 3 M.C.L. § 750.316; M.S.A. § 28.548, and conspiracy to commit armed robbery, M.C.L. § 750.157a; M.S.A. § 28.354(1). Turner was sentenced to concurrent terms of life imprisonment without parole for the murder conviction and forty to eighty years' imprisonment for the conspiracy conviction. Hall was sentenced to concurrent terms of life imprisonment without parole for the murder conviction and thirty-five to seventy years' imprisonment for the conspiracy conviction.

Defendants Ingram and Johnson were tried jointly by separate juries. Both Ingram and Johnson were convicted of first-degree felony murder and conspiracy to commit armed robbery. Defendant Johnson was additionally convicted of felony-firearm, M.C.L. § 750.227b; M.S.A. § 28.424(2). Ingram was sentenced to concurrent terms of life imprisonment without parole for the murder conviction and fifty to seventy-five years' imprisonment for the conspiracy conviction. Johnson was sentenced to concurrent terms of life imprisonment without parole for the murder conviction and fifty to eighty years' imprisonment for the conspiracy conviction, to be served consecutively to a mandatory two-year term for the felony-firearm conviction.

Defendant McDonald was tried separately before a jury. He was convicted of first-degree felony murder, conspiracy to commit armed robbery, and armed robbery, 4 M.C.L. § 750.529; M.S.A. § 28.797. McDonald was sentenced to concurrent terms of life imprisonment without parole for the murder conviction, thirty to sixty years' imprisonment for the conspiracy conviction, and eight to twenty-four years' imprisonment for the armed robbery conviction. The defendants all appeal as of right.

Docket No. 133436
I

Defendant Turner first contends that the evidence was insufficient to support his conviction of felony murder. In reviewing the sufficiency of the evidence in a criminal case, this Court must view the evidence in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992).

A
(i)

M.C.L. § 750.316; M.S.A. § 28.548 provided at the time of the murder:

Murder ... which is committed in the perpetration, or attempt to perpetrate ... robbery ... is murder in the first degree, and shall be punished by imprisonment for life.

The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in M.C.L. § 750.316; M.S.A. § 28.548. People v. Thew, 201 Mich.App. 78, 85, 506 N.W.2d 547 (1993).

In People v. Flowers, 191 Mich.App. 169, 176-179, 477 N.W.2d 473 (1991), this Court observed:

Malice is an essential element of any murder, whether the murder occurs in the course of a felony or otherwise. [People v. Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980).] The element of malice required for statutory felony murder was redefined in Aaron to be the same as that required for second-degree murder....

The facts and circumstances of a killing may give rise to an inference of malice, but malice can never be established as a matter of law by proof of those facts and circumstances. It is for the jury to determine whether the element of malice can be inferred from all the evidence.... A jury can properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. If the jury concludes that malice existed, it can find murder and, if it determines that the murder occurred in the perpetration or attempted perpetration of one of the enumerated felonies, by statute the murder would become first-degree murder. Aaron, supra at 729-730 ....

* * * * * *

In situations involving the vicarious liability of cofelons, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for an unforeseen death that did not result from actions agreed upon by the participants. In cases where the felons are acting intentionally or recklessly in pursuit of a common plan, liability may be established on agency principles. Aaron, supra at 731 . If the homicide is not within the scope of the main purpose of the conspiracy, those not participating are not criminally liable. 40 AmJur2d, Homicide, § 34, p 326.

In order to convict one charged as an aider and abettor of a first-degree felony murder, the prosecutor must show that the person charged had both the intent to commit the underlying felony and the same malice that is required to be shown to convict the principal perpetrator of the murder. Therefore, the prosecutor must show that the aider and abettor had the intent to commit not only the underlying felony, but also to kill or to cause great bodily harm, or had wantonly and wilfully disregarded the likelihood of the natural tendency of this behavior to cause death or great bodily harm. Further, if it can be shown that the aider and abettor participated in a crime with knowledge of his principal's intent to kill or to cause great bodily harm, he was acting with wanton and wilful disregard sufficient to support a finding of malice. People v. Kelly, 423 Mich. 261, 378 N.W.2d 365 (1985).

Intent is a question of fact to be inferred from the circumstances by the trier of fact.... It is likewise a factual issue whether a particular act or crime committed was fairly within the intended scope of the common criminal enterprise.

Malice is a permissible inference from the use of a deadly weapon. People v. Martin, 392 Mich. 553, 561, 221 N.W.2d 336 (1974), overruled in part on other grounds in People v. Woods, 416 Mich. 581, 331...

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