People v. Burnett, Docket No. 95523

• Decision Date: 07 April 1988
• Docket Number: Docket No. 95523
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer James BURNETT, Defendant-Appellant. 166 Mich.App. 741, 421 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

421 N.W.2d 278

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer James BURNETT, Defendant-Appellant.

Docket No. 95523.

166 Mich.App. 741, 421 N.W.2d 278

Court of Appeals of Michigan.

Submitted Jan. 7, 1988.

Decided March 7, 1988.

Released for Publication April 7, 1988.

[166 MICHAPP 742] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Mardi Crawford, Detroit, for defendant-appellant on appeal.

Before CYNAR, P.J., and BEASLEY and GLASER, ^* JJ.

BEASLEY, Judge.

Defendant, Elmer James Burnett, was convicted by a jury of conspiracy to commit first-degree murder and arson, contrary to M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), arson, contrary to M.C.L. Sec. 750.72; M.S.A. Sec. 28.267, breaking and entering with intent to commit murder, contrary to M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, two counts of first-degree murder, contrary to M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, three counts of assault with intent to murder, contrary to M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and possession of a firearm during the commission of a felony, contrary to M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to serve concurrent [166 MICHAPP 743] terms of life on the conspiracy to commit first-degree murder and arson conviction, not less than thirteen nor more than twenty years on the arson conviction, not less than ten nor more than fifteen years on the breaking and entering with intent to commit murder conviction, life on both first-degree murder convictions, life on all three assault with intent to murder convictions, and a two-year consecutive sentence for the felony-firearm conviction. Subsequently, defendant's delayed application for leave to appeal was granted by this Court.

In order to understand the various peripheral arguments defendant makes on appeal, it is necessary first to review the prosecutor's case.

The prosecutor's theory at trial was that defendant intended to kill Robert Anderson, Thomas Batson, and a man named Mafete because of their interference with his drug business. The prosecutor elicited testimony from Gloria Ruffin, Bonnie Davis, James Anderson, Marilyn Walton, Thomas Batson and Nathaniel Grover concerning their involvement and defendant's involvement in drug trafficking.

The events that gave rise to these gruesome crimes began during the evening on December 10, 1984, and continued through the night to the morning of December 11, 1984. Defendant was accompanied at various times by Nathaniel Grover, Robert Thompson, and Curtis Montana Philpots. At approximately 10:00 p.m. on December 10, 1984, Grover received a message from a young man that defendant and Robert Anderson had had a dispute. Grover was told that defendant wanted him to bring defendant the "defender," a twelve gauge shotgun. At the time, Grover was at Gloria Ruffin's home, she being his girlfriend with whom he had lived for the past four months. Grover sold drugs out of Gloria's home.

[166 MICHAPP 744] Grover brought the "defender" to defendant and also carried with him a .38 caliber automatic pistol and a .357 caliber revolver. Defendant was at Bonnie Davis' home, she being his girlfriend. Bonnie Davis and defendant sold drugs out of her home. When Grover arrived at Davis' home, defendant told Grover that some guys, including Robert Anderson and Mafete, had "disrespected" him and that they were expected to return. Grover drove defendant over to defendant's wife's home. As they were on their way, defendant and Grover saw a Nova which they believed belonged to Robert Anderson. Defendant told Grover to follow the Nova, drive around the block, park and wait for him. Defendant got out of the car, took the "defender" with him, and fired three or four shots at the Nova. Defendant returned to the car and told Grover that "[he] got that bitch."

Renaldo Hutson was driving the Nova at the time, and he was hit in the shoulder and hospitalized. Hutson did not know defendant.

Grover proceeded to drive defendant to his wife's home where defendant either changed clothes or put some in the washing machine and told Grover to clean the "defender." Defendant and Grover returned to Gloria Ruffin's home around midnight or 1:00 a.m., where they began to drink, smoke marijuana and do cocaine.

Thompson and Philpots arrived at Ruffin's home around 2:00 a.m., after stopping at Bonnie Davis' home to look for defendant. She had told them about the incident with Robert Anderson. Thompson and Philpots asked defendant what he wanted to do about the incident, and they decided to shoot at and burn Robert Anderson's home.

All of the men put on gloves and defendant, Grover and Philpots armed themselves. Grover carried a .357 magnum and the "defender," defendant[166 MICHAPP 745] carried a twelve gauge pump shotgun, and Philpots carried a .38 caliber automatic pistol. Defendant, Grover, Thompson and Philpots all drove over to Bonnie Davis' home. Grover sent Philpots to get a rifle which he gave to Thompson upon Philpots' return to the car. Then they all drove to a gas station where Grover and Thompson filled an empty container with gasoline. They then drove over to Robert Anderson's home and parked around the corner from it. Philpots made four firebombs out of the gasoline and some empty beer bottles and gave one each to defendant, Grover and Thompson. By now it was around 3:00 or 3:30 a.m. and they all walked to Robert Anderson's driveway.

Philpots lit his firebomb and ran to the back of Anderson's home. Grover lit his firebomb and threw it into the back door. Grover ran around to the front of the home after hearing gunshots coming from that direction. As he got there, Grover saw Philpots running away from the home, and Thompson was standing behind a tree in the front of the home with a .30-06 rifle. Defendant apparently was in the back of the home and came out front shortly afterwards with a twelve gauge shotgun. Grover called Philpots back to the home and they all stood in front of the home and shot at it.

Robert Anderson's mother, Barbara, and Robert were both hit by the shots fired into their home. Barbara was wounded and Robert was killed. After firing approximately twenty shots, they left. Philpots and Thompson drove off in the car and defendant and Grover began walking. As they walked through the neighborhood, defendant began shooting at the houses. One of defendant's bullets went through the front window of Lisa Carr's home, and a piece of glass hit her in the face.

Philpots and Thompson came around the corner [166 MICHAPP 746] in the car, and defendant and Grover shot at it. They ceased firing after Philpots yelled that it was the wrong car. Defendant and Grover got into the car with Philpots and Thompson, and they all drove back to Gloria Ruffin's home, taking all of the guns into her home except for the .357 pistol.

While they were in the house, Thompson and Philpots began to discuss Thomas Batson. They thought that Batson was a "snitch" and wanted to get him out of his apartment so that Philpots could sell drugs out of the apartment. Defendant interrupted the conversation and yelled at the others for not waiting until the Andersons came out of their home to shoot. Defendant felt that only Thompson did it correctly. At some time during the conversation, they realized that the .357 pistol was missing and defendant went out to the car to retrieve it. While defendant was retrieving the pistol, Thompson stated that defendant took the .30-06 rifle from him at the Anderson home and began shooting it.

Eventually, they all began loading their guns to go over to Thomas Batson's apartment. Defendant stated that he was going to kill Batson, and Philpots stated that defendant would not have to because he would do so. Defendant told Grover that he did not have to go over to Batson's apartment because he was too drunk. Grover gave defendant the keys to his car, and Philpots drove his own car.

Defendant, Thompson and Philpots arrived at Batson's apartment around 7:00 a.m. Batson was not at home, but Marilyn Walton, the downstairs tenant, heard talking and shooting coming from Batson's apartment. Defendant and the others shot at the back door, bed, refrigerator, walls and floor of the apartment. Some of the shots came through the ceiling into Marilyn Walton's apartment. During[166 MICHAPP 747] the course of all this, Marilyn Walton received a call from Philpots telling her not to go outside or look out of the window. The shooting in Batson's apartment continued for about ten minutes, then defendant and Thompson began to run down the street and shoot their guns.

A group of children, including Ray Parker, Jr., age eleven, and Alpha Breed, age fourteen, were standing at a church waiting for their school bus. Defendant and Thompson approached the children and began shooting at them. Parker was hit and died after receiving four gunshot wounds to his body. Breed, who was hit in the thigh, testified that the gunmen deliberately aimed at Parker and him and shot them. The other children scattered about the area. Defendant and Thompson ran between the houses near Eldridge and Flint Park Boulevard.

Ladale Woods, a police officer for the City of Flint who lived in the vicinity, was leaving for work around 7:30 a.m. that morning. As he was leaving his home, Officer Woods heard "three loud bangs" and saw defendant and Thompson run in between the houses. Officer Woods drove his cruiser down the street looking in between the houses.

In the meantime, defendant had run between two homes and was leaning against Marilyn Rembert's home near her bedroom window. She watched defendant as he stood against her home and loaded his gun. As he was doing so, defendant kept looking out towards the street and around the corner. By now, Officer Woods had backed...