People v. Bart

• Decision Date: 08 November 1996
• Docket Number: Docket No. 191403
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Steven Wallace BART, Defendant-Appellee. .
• Court: Court of Appeal of Michigan — District of US

Page 449

558 N.W.2d 449

220 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Steven Wallace BART, Defendant-Appellee. [On Remand].

Docket No. 191403.

Court of Appeals of Michigan.

Submitted Sept. 5, 1996, at Detroit.

Decided Nov. 8, 1996, at 9:10 a.m.

Released for Publication Feb. 4, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals.

Mary E. MacDougall, Dearborn, for defendant-appellee on appeal.

Before YOUNG, P.J., and TAYLOR and R.C. LIVO, ^* JJ.

ON REMAND

TAYLOR, Judge.

This case is before us pursuant to a Supreme Court order requiring us to consider this prosecutor's appeal as on leave granted. 450 Mich. 944, 548 N.W.2d 627 (1995). We reverse.

Defendant was charged with armed robbery and assault with intent to commit great bodily harm less than murder. The trial was held on June 25 and 26 of 1991 with Judge Kathleen MacDonald presiding. The victim testified that he was sitting in his convertible car with the top down when codefendant, Dominic Vasques, approached him and made a compliment about his car. After the codefendant left, defendant approached the victim and made a similar comment. Vasques then returned and defendant asked the victim what the make of his radio was. The victim told Vasques and defendant that he had to leave and he started his car. Defendant reached in, turned the car off, and told the victim he was not going anywhere. Vasques reached in and grabbed some compact discs and cassette tapes from the back seat. Defendant told the victim to hand over his radio and disc player. When the victim refused, Vasques hit him over the head with a Pepsi bottle. Defendant had a brown beer bottle in his hand. The victim said he did not see defendant hit him although he found some brown beer bottle glass along with Pepsi bottle glass in his car the next day and he said he had been hit in two places. The victim passed out for a moment and saw defendant and Vasques running when he regained consciousness. A police officer testified that he observed two males run away from a convertible and then drive in reverse through an alley. The officer stopped the vehicle and found some compact discs and cassette tapes in the car.

Defense counsel did not move for a directed verdict when the prosecution rested its case. After closing arguments, the trial court, sua sponte, advised the attorneys that it intended to give instructions regarding unarmed robbery and larceny from a person as lesser included offenses of armed robbery and regarding aggravated assault and felonious assault as lesser included offenses of assault with intent to do great bodily harm. The jury found defendant guilty of armed robbery and assault with intent to do great bodily harm less than murder. After the jury announced its verdict, the court asked defense counsel if he wanted the jury polled. Defense counsel answered in the affirmative. After the polling of the jury was completed and the jury was discharged, the court, sua sponte, stated as follows to defense counsel: "You don't have a motion for me?" Defense counsel then said that he wanted to move for a new trial and for judgment notwithstanding the verdict. The court said it would accept a motion for a directed verdict of acquittal as well as a motion for a new trial.

On August 16, 1991, the court entertained oral argument regarding the motion for a directed verdict of acquittal and a new trial. The court granted a directed verdict of acquittal, stating:

I was present at this trial and it absolutely amazed me that the jury brought back this verdict. There was never any testimony that this defendant committed any actual assault or robbery. The most that could have been said to support this charge that he was an aider and abettor and in fact, that must be proven if the People could have shown that at or be proven if the People could have shown that at or before [codefendant] Dominic Vasques's commission of the crime defendant either specifically intended to commit armed robbery or had the knowledge that Dominic Vasques had the specific intent to commit armed robbery as well as an assault.

These are specific intent crimes and there was no testimony to support that. The motion for directed verdict of acquittal on those charges is granted and rather than grant the motion for a new trial, it is this Court's opinion that there was sufficient evidence to support a conviction for larceny from a person in that there was testimony to support that there was property taken from this person and that the defendant was present and had knowledge of those tapes. There were some cassette tapes I believe that were taken.

Therefore I would reduce the charge to larceny from a person and refer the defendant back to the probation department with a strong recommendation from this Court that he be placed on probation for one year. Certainly I have probably over stepped my bounds to recommend this sentence but I was present at this trial and I found it to be a miscarriage of justice. This defendant has never been in trouble before. These are serious charges that were not supported with sufficient evidence in this Court's opinion.

Thereafter, defendant was sentenced to five years' probation, with the first six months in jail, for the conviction of larceny from a person.

The trial court's ruling did not comply with MCR 6.419(C), which provides:

If the court grants a directed verdict of acquittal after the jury has returned a verdict, it must also conditionally rule on any motion for a new trial by determining whether it would grant the motion if the directed verdict of acquittal is vacated or reversed. [Emphasis added.]

The prosecution appealed the court's order that granted a directed verdict of acquittal. On September 3, 1993, this Court unanimously reversed in an unpublished memorandum opinion that stated in full:

Defendant was found guilty by a jury of armed robbery, MCL 750.529; MSA 28.797, and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279. The trial court subsequently ordered directed verdicts of acquittal and entered a conviction for the lesser included offense of larceny from a person, MCL 750.357; MSA 28.589. Plaintiff now appeals as of right. MCL 770.12; MSA 28.1109. We reverse the directed verdicts of acquittal and remand for entry of judgment consistent with the jury verdicts.

When viewed in a light most favorable to the prosecution, the evidence was sufficient to enable a rational trier of fact to find that the essential elements of the charged offenses were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 285 N.W.2d 284 (1979); People v. Heard, 178 Mich.App. 692, 703, 444 N.W.2d 542 (1989). Accordingly, the court erred when it directed verdicts of acquittal.

Reversed and remanded for entry of judgments of conviction consistent with the jury's verdicts. ¹

Pursuant to this Court's remand, the case returned to the lower court for sentencing. The case was assigned to Judge John H. Gillis, Jr. Defendant moved to have further proceedings conducted before Judge MacDonald. Judge Gillis denied the motion, said the motion for a new trial was moot, and sentenced defendant to concurrent terms of four to fifteen years for the armed robbery conviction and four to ten years for the conviction of assault with intent to commit great bodily harm less than murder. Defendant then filed a motion for a new trial with Judge MacDonald. In denying the motion, on November 16, 1994, Judge MacDonald held that she could not overturn Judge Gillis' decision but added:

I still am of the opinion that this defendant was wrongly charged and wrongly convicted, and I remember. I remember the complainant's testimony and how incredible it was. However, the Court of Appeals didn't see it the same way and apparently Judge Gillis didn't look at it either. ²

Defendant appealed the denial of his motion to have further proceedings held by Judge MacDonald. On March 22, 1995, this Court issued an order granting defendant's appeal, stating:

The Court orders, pursuant to MCR 7.205(D)(2) and 7.216(A)(7), that the December 14, 1993 order of the Recorder's Court for the City of Detroit in this cause, denying plaintiff's [sic] motion for reassignment, after remand following this Court's decision in Docket No. 144483, to the original trial judge, is REVERSED, and the cause is REMANDED with instructions to reassign the matter to the original trial judge, who has specifically indicated her availability and who remains an active member of the trial bench. For reasons explored in People v. McCline, 442 Mich. 127, 131, 133 (1993), defendant is entitled both to be sentenced by the trial judge, and to have his post-conviction motion for new trial predicated on the great weight of the evidence, People v. Johnson, 397 Mich. 686 (1976), adjudicated by the trial judge, the only judicial officer with knowledge and appreciation of the relevant credibility of witnesses and other extra-record aspects of the trial. People v. Pierce, 158 Mich.App. 113, 115 (1987); People v. Clemons, 407 Mich. 939 (1979). Accord: MCR 6.440(C), 8.111(C) and (D). This Court notes that, by virtue of her ruling on defendant's alternative motion for directed verdict of acquittal, reversed by this Court's prior opinion, the trial judge never addressed defendant's motion for new trial. People v. McCline, supra, 442 Mich. at 134 . On remand, the original trial judge shall adjudicate defendant's motion for new trial, and, if that motion is denied, the trial judge shall then proceed to sentencing.

Pursuant to this Court's remand, on June 20, 1995, Judge MacDonald granted defendant's motion for a new trial, stating:

I think in this case its a very difficult decision. I think as I have stated before to support the seriousness of the charges against this...