People v. Cooper

• Citation: 423 N.W.2d 597,168 Mich.App. 62
• Decision Date: 08 June 1988
• Docket Number: Docket No. 98282
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn COOPER, Defendant-Appellant. 168 Mich.App. 62, 423 N.W.2d 597
• Court: Court of Appeal of Michigan (US)

Page 597

423 N.W.2d 597

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Lynn COOPER, Defendant-Appellant.

Docket No. 98282.

168 Mich.App. 62, 423 N.W.2d 597

Court of Appeals of Michigan.

Submitted Feb. 11, 1988.

Decided April 18, 1988.

Released for Publication June 8, 1988.

[168 MICHAPP 63] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div. Research, Training and Appeals, and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

Patricia S. Slomski, Detroit, for defendant-appellant.

Before KELLY, P.J., and HOOD and WARSHAWSKY, ^* JJ.

HOOD, Judge.

Following a bench trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, arising out of an incident in which the victim, Carolyn Williams, was burned to death in a Detroit alley. Defendant was sentenced to a term of imprisonment of from one hundred to two hundred years and appeals as of right.

The principle testimony regarding the incident came from the trial testimony of Tamika Williams and defendant and the preliminary examination testimony of Charmin Collier which was read into evidence in place of her actual testimony. Tamika Williams testified that, at approximately 6:00 p.m. on March 20, 1986, she looked out of her apartment[168 MICHAPP 64] window and saw defendant and Collier in the alley with Carolyn Williams. Carolyn Williams was tied up. She saw either defendant or Collier hit Carolyn Williams over the head, but she could not tell which of the two struck the actual blow. Then, she saw Carolyn Williams on fire and defendant and Collier running away. Again, she could not tell which of the two actually lit the fire.

When Collier was called to the stand, she answered one question, then stated she wished to exercise her Fifth Amendment privilege against self-incrimination. The court declared her unavailable and allowed the prosecution to have Collier's preliminary examination testimony read into the record. At the preliminary examination, Collier testified that on the date in question she and Carolyn Williams were at Collier's apartment, drinking and watching television. Defendant came over, and Collier left to buy some beer. When she returned, she discovered defendant and Williams naked in Collier's bedroom. Williams' hands were tied, and she was bleeding from the head. Defendant made Collier sit and watch as he had oral and genital sex with Williams. When Collier tried to help, defendant stopped her. Defendant also repeatedly asked Williams where her money was. When defendant was finished, he took Williams to the alley near an abandoned car and hit her over the head with a piece of concrete. At this point, Collier could watch no longer, so she ran a short distance down the road. When she looked toward the alley again, she saw Williams on fire near or in the abandoned car. She later saw defendant throw Williams' clothing over a fence.

Defendant testified that, although he was at Collier's house earlier in the day, at 6:00 p.m. he was at his brother's house, where he spent the [168 MICHAPP 65] night. Defendant denied having sex with Williams or setting her on fire.

Defendant was originally charged with felony murder. The court found that both defendant and Collier were present when Carolyn Williams was burned. The court then determined that, even if Collier actually lit the fire, defendant could still be convicted of murder on an aiding and abetting theory. The court gave defendant the benefit of the doubt as to the robbery and rape of Williams and found defendant not guilty of felony murder, but guilty of second-degree murder.

At sentencing, defendant gave a different account of the events of the day than he had given at trial. He stated that, when Collier and Williams entered Collier's house, Collier told him confidentially that Williams had money and that Collier wanted it. While defendant danced with Williams, one Antonia Brown went through Williams' purse, but found no money. Williams then told defendant she wanted to have sexual intercourse with him, so defendant complied. According to defendant, Collier then bound Williams, dragged her into the alley, and set her on fire. The court then stated that it believed that defendant and Collier both committed the act of setting Williams on fire and that the fact that each implicated the other did not exonerate either, but, rather, indicated that both were guilty. The court then sentenced defendant to a term of imprisonment of from one hundred to two hundred years.

On appeal, defendant first claims that he was denied his right to confront Collier, U.S. Const., Am. VI; Const. 1963, art. 1, Sec. 20, when the court permitted the prosecution to have Collier's preliminary examination testimony read into evidence in lieu of her actual testimony. This claim has no merit. MRE 804(b)(1) states:

[168 MICHAPP 66] "The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

In addition, M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049 states:

"Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify."

For purposes of M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049, asserting one's Fifth Amendment privilege against self incrimination makes the witness "unavailable." People v. Pickett, 339 Mich. 294, 305-308, 63 N.W.2d 681 (1954), cert. den. 349 U.S. 937, 75 S.Ct. 781, 99 L.Ed. 1266 (1955); People v. Castaneda, 81 Mich.App. 453, 458-59, 265 N.W.2d 367 (1978). This Court has, pursuant to MRE 804(b)(1) and M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049, held on many occasions preliminary examination testimony admissible in lieu of the actual testimony of the witness where the witness is unavailable. These rulings have rejected confrontation clause challenges. See People v. Dusterwinkle, 3 Mich.App. 150, 141 N.W.2d 719 (1966), lv. den. 378 Mich. 722 (1966); People v. Doverspike, 5 Mich.App. 181, 189-191, 146 N.W.2d [168 MICHAPP 67] 85 (1966), aff'd. 382 Mich. 1, 167 N.W.2d 285 (1969); People v. Havey, 11 Mich.App. 69, 76-78, 160 N.W.2d 629 (1968), lv. den. 381 Mich. 756 (1968); People v. Walter Moore, 78 Mich.App. 294, 259 N.W.2d 351 (1977); People v. Edgar, 113 Mich.App. 528, 535-536, 317 N.W.2d 675 (1982); People v. Whetstone, 119 Mich.App. 546, 552-553, 326 N.W.2d 552 (1982); People v. Gross, 123 Mich.App. 467, 470, 332 N.W.2d 576 (1983), lv. den. 417 Mich. 1100.36 (1983); People v. Morris, 139 Mich.App. 550, 554-556, 362 N.W.2d 830 (1984). See also Havey v. Kropp, 458 F.2d 1054 (CA 6, 1972). Whether defense counsel cross-examined the witness at the preliminary examination was a principle factor in these cases. The cases in which preliminary examination testimony has been held inadmissible involved instances where the prosecutor did not use due diligence in trying to locate the witness so that the witness could testify at trial. See People v. Herman Brown, 38 Mich.App. 69, 195 N.W.2d 806 (1972); People v. Williams # 2, 45 Mich.App. 630, 636-638, 207 N.W.2d 180 (1973).

In the instant case, defense counsel did cross-examine Collier at the preliminary examination; the record reveals that the cross-examination took up seven pages of the transcript. Thus, there was no error in using Collier's preliminary examination testimony.

Next, defendant claims his sentence of from one hundred to two hundred years was an abuse of discretion and should shock the conscience of this Court under People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983). The guidelines recommended a minimum sentence of ten years to life. Resolution of this issue requires an analysis of two recent decisions. In People v. Oscar Moore, 164 Mich.App. 378, 417 N.W.2d 508 (1987), a panel of this Court held that a sentence of from one hundred to three hundred years for armed robbery [168 MICHAPP 68] was essentially a life sentence without parole and that, because only first-degree murder and certain controlled substance crimes had a mandatory sentence of life imprisonment, the one hundred to three...