People v. Buck

Decision Date08 December 1992
Docket Number120176,Docket Nos. 119249,121340 and 123031
Citation197 Mich.App. 404,496 N.W.2d 321
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman BUCK, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Wayne SEGO, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Franklin Charles GEICK, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randall Lee HOLCOMB, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Shelley R. Spivack, Flint, for defendant-appellant Holcomb.

Michael J. Breczinski, Burton, for defendant-appellant Sego.

Douglas R. Mullkoff, Ann Arbor, for defendant-appellant Buck.

State Appellate Defender by P.E. Bennett, for defendant-appellant Geick.

Before DOCTOROFF, C.J., and JANSEN and CORRIGAN, JJ.

PER CURIAM.

Defendants Buck, Sego, and Geick were convicted after a trial by jury in the Genesee Circuit Court of various offenses, all related to homicide. Defendant Holcomb, a juvenile, was also convicted of several offenses arising out of the same incident, although he had a separate jury hear his case. All defendants bring their appeals as of right, arguing a host of issues that will be addressed seriatim. We affirm in part, reverse in part, and remand to the trial court.

Defendants' convictions arise out of an incident that occurred in a home in Flint where Norman Buck, Sr., was shot to death with a 12-gauge shotgun. The victim was the father of defendant Norman Buck, Jr. There was substantial testimony admitted at trial indicating that the victim had a reputation for violence and abusive behavior, about which all the defendants had some knowledge. During the night of November 6 and early morning hours of November 7, 1988, the victim allegedly made repeated threats and assaults in the presence of the defendants at the home where he would eventually be gunned down.

The details of the incident will become apparent throughout the text of this opinion. However, at approximately 2:00 a.m. on November 7, 1988, the victim was shot three times by defendant Holcomb, while the remaining three defendants watched. Defendants Holcomb, Buck, and Sego immediately were charged with one count of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and conspiracy to commit first-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1); M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. Shortly thereafter, defendant Geick was charged with the same offenses.

Defendant Buck was convicted of first-degree murder, felony-firearm, and conspiracy to commit first-degree murder. He was sentenced to serve life in prison for the murder conviction, two years for the felony-firearm conviction, and thirty to sixty years for the conspiracy conviction. We affirm all of defendant Buck's convictions. Docket No. 119249.

Defendant Sego was convicted of first-degree murder, felony-firearm, and conspiracy to commit first-degree murder. He was sentenced to life in prison for the murder conviction, two years for the felony-firearm conviction, and twenty-five to forty years for the conspiracy conviction. We affirm defendant Sego's convictions of first-degree murder and conspiracy to commit first-degree murder, but vacate his conviction of and sentence for felony-firearm. Docket No. 120176.

Defendant Geick was convicted of voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and felony-firearm, but was acquitted of the conspiracy charge. He was sentenced to serve ten to fifteen years for the manslaughter conviction and two years for the felony-firearm conviction. We affirm defendant Geick's convictions, but remand for adjustment of his sentence to reflect the proper amount of credit for time served. Docket No. 121340.

Defendant Holcomb was convicted by a separate jury of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, felony-firearm, and conspiracy to commit second-degree murder, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1); M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. Following a hearing pursuant to the Juvenile Code, the court determined that Holcomb should be sentenced as an adult. He was sentenced to serve twenty-two to forty years for the murder conviction, two years for the felony-firearm conviction, and twenty-two to forty years for the conspiracy conviction. We affirm defendant Holcomb's second-degree murder conviction, but vacate his felony-firearm and conspiracy convictions. Docket No. 123031.

BUCK

Defendant Buck raises four issues on appeal, none of which we find warrants reversal. Buck first argues that there was insufficient evidence to support any of his convictions. We disagree.

Buck was convicted of first-degree murder, which requires that the prosecution prove, beyond a reasonable doubt, that the killing was intentional, deliberate, and premeditated. People v. Passeno, 195 Mich.App. 91, 100, 489 N.W.2d 152 (1992). Premeditation and deliberation require sufficient time for the defendant to take a second look. Id. The premeditation and deliberation elements may be inferred from the surrounding circumstances, including the prior relationship of the parties, the defendant's actions before the killing, the circumstances surrounding the killing itself, and the defendant's conduct after the killing. People v. Schollaert, 194 Mich.App. 158, 170, 486 N.W.2d 312 (1992).

In the case at bar, the evidence clearly indicated that Buck did not fire the fatal shots. Therefore, Buck's conviction must have resulted from the jury's conclusion that Buck aided and abetted the others in the commission of the murder. To find a defendant guilty on an aiding and abetting theory, the prosecution must prove that (1) a crime was committed either by the defendant or another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the In reviewing a claim of insufficient evidence, this Court examines the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact reasonably could conclude that all the elements of the charged offense have been proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. sub. nom. Michigan v. Hampton, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980); People v. Malone, 193 Mich.App. 366, 372, 483 N.W.2d 470 (1992). Our review of the evidence persuades us that a rational trier of fact reasonably could conclude that Buck aided and abetted the commission of first-degree murder in this case.

commission of the crime or had knowledge that the principal intended its commission at the time he gave the aid or encouragement. People v. Spearman, 195 Mich.App. 434, 441, 491 N.W.2d 606 (1992). All forms of assistance are included within the aiding and abetting theory. People v. Usher, 196 Mich.App. 228, 492 N.W.2d 786 (1992). To be convicted of aiding and abetting first-degree murder, the defendant must have had the intent to kill or have given the aid knowing the principal possessed the intent to kill. Id.

There was testimony presented that Buck went with defendants Sego, Geick, and others to get the gun that ultimately was used to kill the victim. Further, there was testimony indicating that Buck, while in the car on the way to the house where the victim was killed, stated: "My dad thinks he is going to come over and shoot us up, I guess I can shoot him back too." When the men were on their way to the house, Buck loaded and unloaded the weapon. In addition, Buck and defendant Holcomb discussed who should do the shooting, whereupon Buck suggested that Holcomb do it because he was a juvenile and would get off with a lighter sentence.

The testimony also revealed a plot by defendants to make the shooting look like self-defense. To this end, a man named Kevin Cameron acquired a large knife that was wiped clean of fingerprints and placed in the victim's hand after the victim was shot. The evidence indicated that Buck knew of the plan to place the knife in his father's hand and cautioned others not to touch the knife after it was wiped clean of fingerprints. Considering this evidence in a light most favorable to the prosecution, we are convinced that a rational trier of fact could conclude that Buck aided and abetted first-degree murder.

We are also persuaded that the evidence articulated above was sufficient to support a conviction of conspiracy to commit first-degree murder. A conspiracy is a mutual agreement between two or more individuals to commit a criminal act or to accomplish a legal act through criminal means. People v. Cotton, 191 Mich.App. 377, 392, 478 N.W.2d 681 (1991). The essence of the conspiracy is the agreement itself, and it is sufficient if the acts of the parties establish the agreement. Id. at 393, 478 N.W.2d 681. The crime is complete when the agreement is made, whether or not some overt act is taken in order to further the conspiracy. Id. To prove conspiracy to commit murder, it must be demonstrated that each conspirator had the requisite intent to commit the murder. People v. Hamp, 110 Mich.App. 92, 103, 312 N.W.2d 175 (1981). The prosecution must demonstrate that the conspirators deliberated and planned the crime with the intent to kill the victim. Id.

In the instant case, the evidence introduced at trial indicating Buck's involvement in the plot from the time the shotgun was acquired to the time the knife was placed in his father's hand after the shooting persuades us that there was...

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