742 N.W.2d 610 (Mich.App. 2007), 271216, People v. Chambers

Docket Nº:271216.
Citation:742 N.W.2d 610, 277 Mich.App. 1
Opinion Judge:MURPHY, P.J.
Party Name:PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Billy Joe CHAMBERS, Defendant-Appellant.
Attorney:Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Attorney, and Betsy B. Mellos, Assistant Prosecuting Attorney, for the people. Neil J. Leithauser, Troy, for the defendant.
Judge Panel:Before: MURPHY, P.J., and SMOLENSKI and SCHUETTE, JJ.
Case Date:October 09, 2007
Court:Court of Appeals of Michigan
 
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Page 610

742 N.W.2d 610 (Mich.App. 2007)

277 Mich.App. 1

PEOPLE of The State of Michigan, Plaintiff-Appellee,

v.

Billy Joe CHAMBERS, Defendant-Appellant.

No. 271216.

Court of Appeals of Michigan

October 9, 2007

Submitted Oct. 2, 2007, at Detroit.

Released for Publication Dec. 10, 2007.

Macomb Circuit Court LC No. 2006-000637-FC

Page 611

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Eric J. Smith, Prosecuting Attorney, Robert Berlin, Chief Appellate Attorney, and Betsy B. Mellos, Assistant Prosecuting Attorney, for the people.

Neil J. Leithauser, Troy, for the defendant.

Before: MURPHY, P.J., and SMOLENSKI and SCHUETTE, JJ.

MURPHY, P.J.

[277 Mich.App. 2] Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, and assault with a dangerous weapon, i.e., felonious assault, MCL 750.82(1). He was sentenced to 81 to 135 months' imprisonment for the armed robbery conviction and 12 to 48 months' imprisonment for the

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felonious assault conviction. Defendant argues that his convictions and sentences violate his constitutional protections against double jeopardy, U.S. Const., Am. V; Const. 1963, art. 1, § 15. He further argues that his Sixth Amendment right to confront witnesses against him was violated when information given by a nontestifying confidential informant to the police was elicited and admitted into evidence at trial. Defendant makes an accompanying claim that counsel was ineffective for failing to object to the Confrontation Clause violation. Pursuant to People v. Smith, 478 Mich. 292, 733 N.W.2d 351 (2007), we hold that there was no double jeopardy violation because armed robbery and felonious assault do not constitute the "same offense" given that each requires proof of an element that the other does not. Further, we hold that there was no Confrontation Clause violation because the out-of-court testimonial statement by the confidential informant was not admitted to establish or prove the truth of the matter asserted. Accordingly, counsel [277 Mich.App. 3] was not ineffective for failing to raise what would have been a futile objection. We thus affirm defendant's convictions and sentences.

I. Basic Facts

On Thursday, December 22, 2005, the female victim drove to a medical center to withdraw cash from a nearby automated teller machine (ATM). She parked her car in the medical center's parking lot and walked to the ATM. The victim inserted her ATM card into the ATM and punched in her personal identification number. The ATM dispensed the requested amount and returned the victim's ATM card. As she waited for her receipt, "there was somebody on [her] back." She had not heard anyone approach the ATM, nor had she heard another car drive into the parking lot. This person, a man later identified as defendant from photographs developed from a tape produced by the ATM's video surveillance camera, placed a gun on the side of the victim's face and demanded her money. The victim held out the money that she had withdrawn from the ATM, and defendant snatched the cash and her ATM card from her hand.

Defendant then hit the victim in the back of the head, and she fell to the ground. She was unsure whether defendant struck her with his hand or with an object. Defendant proceeded to kick the victim as she lay on the ground and called her a derogatory name. He repeatedly ordered her to stand up, but each time she attempted to stand, defendant kicked her back down. As defendant was kicking the victim, he demanded her purse. The victim replied that she did not have a purse. Hearing this, defendant again kicked her and stepped on her legs. According to the victim, defendant then demanded something else from her, but, not hearing or [277 Mich.App. 4] understanding what was demanded, she turned onto her back and told defendant that she had nothing. Defendant stared at her, and the victim noticed that he was holding a gun. The weapon was pointed straight at her. The victim told defendant that her purse was in her car, and he kicked her one last time before walking to her car. The victim then got up and ran for assistance. Defendant fled the area.

The police were able to obtain three still photographs from the video surveillance tape, and they were aired on local television stations. An FBI agent later contacted the detective working the case and told him that one of the agent's informants recognized and identified defendant from the photographs. On the basis of that information, a police surveillance team monitored defendant's home, and he was arrested after driving up to the house. Defendant was wearing a jacket that was similar to the jacket worn by the perpetrator as seen on the videotape. Further, a knit hat with a visor, which matched a description given by the victim, was found

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in a search of defendant's bedroom. Defendant was tried and convicted of armed robbery and felonious assault and sentenced to terms of imprisonment for both offenses. 1

II. Analysis

A. Double Jeopardy Argument

Defendant first claims that his convictions and sentences for armed robbery and felonious assault violate his constitutional protections against double jeopardy. The constitutional provisions barring double jeopardy, U.S. Const., Am. V and Const. 1963, art. 1, § 15, prohibit a [277 Mich.App. 5] defendant from being punished multiple times for the same offense. People v. Torres, 452 Mich. 43, 64, 549 N.W.2d 540 (1996).

In the recently issued opinion of Smith, supra at 315, 733 N.W.2d 351, the Michigan Supreme Court held that the ratifiers of the 1963 Michigan Constitution intended that the Double Jeopardy Clause be construed consistently with then-existing Michigan caselaw and with the interpretation given to the Fifth Amendment by federal courts. The Smith Court concluded "that the ratifiers intended that the term 'same offense' be given the same meaning in the context of the 'multiple punishments' strand of double jeopardy that it ha[d] been given with respect to the 'successive prosecutions' strand." Id. at 315-316, 733 N.W.2d 351. Federal courts, in interpreting the "same offense" language in the context of multiple punishments, first look to determine whether the Legislature expressed a clear intent that multiple punishments be imposed. Id. at 316, 733 N.W.2d 351. If the Legislature clearly intended to impose multiple punishments, the imposition of multiple punishments, regardless of whether the offenses share the same elements, does not offend the constitutional protections against double jeopardy. Id. If the Legislature has not clearly expressed its intention to impose multiple punishments, federal courts apply the "same elements" test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L .Ed. 306 (1932). Smith, supra at 316, 733 N.W.2d 351. Under the Blockburger "same elements" test, two offenses are not the "same offense" if each requires proof of an element that the other does not. Id. at 300, 307, 52 S.Ct. 180. The Smith Court adopted Blockburger as the proper test under Michigan law relative to double jeopardy analysis in the context of multiple punishments, overruling People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984). Smith, supra at 296, 324, 733 N.W.2d 351.

[277 Mich.App. 6] Pursuant to Smith, we must determine if armed robbery requires proof of an element not required in establishing a felonious assault and whether felonious assault requires proof of an element not required in establishing an armed robbery. 2 The armed robbery statute, MCL 750.529, currently provides:

A person who engages in conduct proscribed under [MCL 750.530] and who in the course of engaging in that conduct,

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possesses a dangerous weapon or an article used or fashioned in a manner to lead any person present to reasonably believe the article is a dangerous weapon, or who represents orally or otherwise that he or she is in possession of a dangerous weapon, is guilty of a felony punishable by imprisonment for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while violating this section, the person shall be sentenced to a minimum term of imprisonment of not less than 2 years.

The Legislature had amended MCL 750.529 in 2004, resulting, in part, in the deletion of the following language: "Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny ...." 2004 PA 128; see also Michigan Compiled Laws Annotated (West 2004) Historical and Statutory Notes following MCL 750.529. [277 Mich.App. 7] This deleted language was replaced, as reflected above, by language that references persons who engage in conduct proscribed by MCL 750.530. 3 MCL 750.530(1) provides:

A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is...

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