People v. Akins, Docket No. 240359

• Citation: 259 Mich. App. 545,675 N.W.2d 863
• Decision Date: 19 February 2004
• Docket Number: Docket No. 240360.,Docket No. 240359
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aljarrau L. AKINS, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Jamario A. Mitchell, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

675 N.W.2d 863

259 Mich. App. 545

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Aljarrau L. AKINS, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Jamario A. Mitchell, Defendant-Appellant.

Docket Nos. 240359, 240360.

Court of Appeals of Michigan.

Submitted October 7, 2003, at Detroit.

Decided December 9, 2003, at 9:00 a.m.

Released for Publication February 19, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Lamar Moreland, Assistant Prosecuting Attorney, for the people.

James C. Hall, Eastpointe, for Aljarrau Akins.

Jonathan B.D. Simon, Detroit, for Jamario Mitchell.

Before: FITZGERALD, P.J., and ZAHRA and FORT HOOD, JJ.

ZAHRA, J.

Following a jury trial, defendants Aljarrau L. Akins and Jamario A. Mitchell were both convicted of first-degree felony murder, MCL 750.316, and assault with intent to rob while armed, MCL 750.89, arising out of the shooting death of Vito Davis. Mitchell was also convicted of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced Akins to mandatory life imprisonment for his felony-murder conviction and six to twenty-five years' imprisonment for his conviction of assault with intent to rob while armed. The trial court sentenced Mitchell to mandatory life imprisonment for his felony-murder conviction, five to twenty-five years' imprisonment for his conviction of assault with intent to rob while armed, and two years' imprisonment to be served consecutively for his felony-firearm conviction.¹ Defendants appealed as of right, and their appeals were consolidated by order of this Court.²

The most significant issue presented on appeal is whether assault with intent to rob while armed is a proper underlying felony to support defendants' felony-murder convictions. We hold that it is. Under MCL 750.316(1)(b), felony murder includes murder committed in the perpetration of, or attempt to perpetrate, inter alia, a robbery. Because a person who commits assault with intent to rob while armed also commits the necessarily included lesser offense of attempted armed robbery, which is a well-established predicate felony under the felony-murder statute, we conclude that assault with intent to rob while armed is also a predicate felony under the felony-murder statute. Accordingly, we affirm defendants' felony-murder convictions.

For reasons more fully set forth in this opinion, we affirm in part and vacate in part.³

I. Facts and Procedure

This case arises from the attempted robbery and the shooting death of Vito Davis. Defendants and Osiris Cuesta were admittedly at the scene of the shooting. Defendants gave police conflicting statements relating to the events that led up to the shooting. However, Cuesta, who was the only eyewitness to the shooting to testify at trial, testified that on the day of the shooting, he, Akins, and Mitchell were together on Glenwood Street at about 2:00 a.m., when Antwan Banks approached Akins and had a private conversation with him. Akins then asked Cuesta and Mitchell if they wanted to help him rob someone who would shortly arrive at the home of Banks in a 2001 Cadillac. Cuesta and Mitchell agreed to help with the robbery.

Cuesta, Akins, and Mitchell then went to Mitchell's house to retrieve a 9 millimeter automatic handgun, which Mitchell gave to Akins. The three men returned to Glenwood Street and waited on the porch of a nearby house for the target of the robbery to arrive. While waiting, Cuesta and Mitchell decided not to go along with the robbery, and the three men began walking away down the street. As they were walking away, a Cadillac drove up and stopped near the home of Banks. Without saying anything, Akins turned around and began walking toward the Cadillac. Cuesta followed, intending to go along with the robbery.⁴ Akins walked up to the passenger side of the Cadillac, hit the butt of the gun against the car window, and fired one shot into the car. The driver of the Cadillac, Davis, sped away. Akins ran behind the car, pulling the trigger of the gun but no other bullets were discharged. Davis crashed into a parked van on a nearby street and died from excessive bleeding from a gunshot wound to his leg. After the shooting, Akins and Cuesta ran from the scene. Cuesta observed Mitchell, running in front of him toward the home of Akins.

In the days following the shooting, defendants, Cuesta,⁵ and Banks⁶ were arrested. Both defendants gave statements to the police. Akins told the police that he acted as the lookout man for the robbery, but that Cuesta was the shooter. Mitchell, on the other hand, told the police that Akins was the shooter, but also that he (Mitchell) had supplied the gun used in the shooting and that he had expected to get paid for the use of his gun.

Akins moved to suppress his statements to the police, claiming that they were not voluntarily made. After an evidentiary hearing, the trial court concluded that the statements were made voluntarily and, thus, were admissible at trial. Akins and Mitchell were tried together and convicted by separate juries. After sentencing, the trial court vacated Mitchell's conviction of assault with intent to rob while armed because it was violative of double jeopardy, given his felony-murder conviction. This appeal followed.

II. Analysis

A. People v. Mitchell (Docket No. 240360)

1. Assault With Intent to Rob While Armed as a Predicate Felony for Felony Murder

Mitchell first argues that his felony-murder conviction must be reduced to second-degree murder⁷ because assault with intent to rob while armed is not one of the enumerated felonies within the felony-murder statute. The prosecution relies on this Court's vacated opinion of People v. Ross, 242 Mich.App. 241, 618 N.W.2d 774 (2000), vacated 465 Mich. 909, 638 N.W.2d 746 (2001).⁸ In Ross, supra at 243, 247-248, 618 N.W.2d 774, this Court held that the offense of assault with intent to rob while unarmed is a predicate offense under the felony-murder statute.⁹

Because Ross was vacated, this issue is before this Court once again as an issue of first impression.¹⁰ We review de novo issues of statutory construction and interpretation. People v. Phillips, 469 Mich. 390, 394, 666 N.W.2d 657 (2003). "When construing a statute, our primary goal is `to ascertain and give effect to the intent of the Legislature.' To do so, we begin by examining the language of the statute." Id. at 395, 666 N.W.2d 657 (citations omitted). If the language of the statute is unambiguous, a court may read nothing into the words of the statute and must enforce the statute as written. Id. "`Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent.'" Id., quoting Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). The mere fact that a statutory scheme may be difficult to follow does not render any portion of a statute ambiguous. "An ambiguity can be found only where the language of the statute as used in its particular context has more than one common and accepted meaning. Thus, where common words used in their ordinary fashion lead to one reasonable interpretation, a statute cannot be found ambiguous." Colucci v. McMillin, 256 Mich.App. 88, 94, 662 N.W.2d 87 (2003).

Mitchell argues that assault with intent to rob while armed is not an offense upon which a felony-murder charge may be predicated. The felony-murder statute provides that a person who commits the following is guilty of felony murder:

Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first, second, or third degree, child abuse in the first degree, a major controlled substance offense, robbery, carjacking, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping. [MCL 750.316(1)(b).]

There is no dispute that armed robbery falls within the meaning of the term "robbery" in the felony-murder statute. Because an attempt to commit an enumerated offense constitutes a predicate felony under the felony-murder statute, attempted armed robbery also constitutes a predicate felony. The crux of this issue is whether assault with intent to rob while armed constitutes an "attempted robbery" under the felony-murder statute. Mitchell correctly points out that assault with intent to rob while armed is not the same offense as armed robbery, see People v. Kamin, 405 Mich. 482, 501, 275 N.W.2d 777 (1979) (holding that assault with intent to rob while armed is a lesser included offense of armed robbery), or attempted armed robbery, cf. People v. Sanford, 402 Mich. 460, 474, 265 N.W.2d 1 (1978) (holding that assault with intent to rob while unarmed is not the same offense as attempted unarmed robbery). But assault with intent to rob while armed is a necessarily lesser included offense of armed robbery, Kamin, supra at 501, 275 N.W.2d 777, and attempted armed robbery is a lesser included offense of assault with intent to rob while armed, People v. Patskan, 387 Mich. 701, 714, 199 N.W.2d 458 (1972); People v. Bryan, 92 Mich.App. 208, 225, 284 N.W.2d 765 (1979). Thus, attempted robbery is established every time assault with intent to rob while armed is established. Patskan, supra at 713-714, 199 N.W.2d 458; People v. Adams, 128 Mich.App. 25, 29, 339 N.W.2d 687 (1983). The distinguishing element between the greater offense of assault with intent to rob while armed and the lesser offense of attempted armed robbery is the element of assault. Patskan, supra at 713, 199 N.W.2d 458; cf. Sanford, supra at 473-474, 265 N.W.2d 1 (holding that attempted unarmed robbery may be committed simply by putting someone in fear, while assault with intent to rob while unarmed requires an assault with force and...