People v. Cotton

• Decision Date: 07 October 1991
• Docket Number: Docket Nos. 113824,113825
• Citation: 191 Mich.App. 377,478 N.W.2d 681
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Thomas COTTON, Brian Michael Powell, David Michael Venters, and Jeffrey Scott Wood, Defendants-Appellees. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George P. MERLINO, Jr., Defendant-Appellee. 191 Mich.App. 377, 478 N.W.2d 681
• Court: Court of Appeal of Michigan — District of US

Page 681

478 N.W.2d 681

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Thomas COTTON, Brian Michael Powell, David Michael

Venters, and Jeffrey Scott Wood,

Defendants-Appellees.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. George P. MERLINO, Jr., Defendant-Appellee.

Docket Nos. 113824, 113825.

191 Mich.App. 377, 478 N.W.2d 681

Court of Appeals of Michigan.

Submitted April 16, 1991, at Detroit.

Decided Oct. 7, 1991, at 9:15 a.m.

Released for Publication Feb. 3, 1992.

[191 MICHAPP 378] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the people.

Garber, Harris & Sherbow, P.C. by Ira A. Harris, Southfield, for James T. Cotton.

James A. Carlin, Southfield, for Brian M. Powell.

Barry A. Resnick, Farmington Hills, for David M. Venters.

Neaton & Fenner, P.C., by Richard A. Neaton, Detroit, for Jeffrey S. Wood.

Before MURPHY, P.J., and SHEPHERD and KAVANAGH, ^* JJ.

MURPHY, Presiding Judge.

The people appeal as of right from [191 MICHAPP 379] two orders entered by the Detroit Recorder's Court that granted defendants' motions to quash the information charging all the defendants with assault with intent to rob while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, and conspiracy to commit armed robbery, M.C.L. Sec. 750.157a(a); M.S.A. Sec. 28.354(1)(a), and defendant Merlino, alone, with possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The Recorder's Court held that there was insufficient evidence to support binding over defendants for trial on the former two charges because the prosecutor had failed to establish the corpus delicti of these crimes without the aid of defendants' confessions. The court concluded that the only possible crimes established by the evidence at the preliminary examination were malicious destruction of property and assault and battery, both committed by defendant Cotton. We reverse.

The sole issue on appeal is whether the district court erred in admitting defendants' confessions into evidence at the preliminary examination. The people argue that after the Supreme Court's decision in People v. Williams, 422 Mich. 381, 373 N.W.2d 567 (1985), the traditional corpus delicti rule now applies only to cases in which the use of a defendant's statement could lead to a conviction when no crime was actually committed. According to the people, once evidence is presented to establish the core of a crime, the defendant's confession may be used to elevate the crime by supplying additional elements or aggravating circumstances. The people contend that at the preliminary examinations in the present case, it presented evidence establishing that an assault and conspiracy had been committed and that defendant's confessions therefore properly could be used to elevate these [191 MICHAPP 380] offenses to those charged in the information. We agree.

The charges against defendants arose out of an incident that occurred just after midnight on May 18, 1988, at the home of attorney Michael Blake at 23340 Bonair in Dearborn Heights. At about 12:30 a.m., Kevin Klatz was in the neighborhood to drop off his sister when he observed a black Buick Regal driven by a light-skinned man circling the area. Because the driver kept looking at Klatz as he dropped off his sister and the driver had been circling around for about ten minutes, Klatz decided to follow the car. Klatz wrote down the license plate number "322 LYS" and called the police when he arrived at his home about thirty minutes later. The police traced this number to the license plate for a black Buick Regal owned by defendant Powell.

In the meantime, Blake was home alone, lying in bed and watching a movie on cable television while waiting for his girl friend and her friend to arrive. Suddenly, the cable television went out, so Blake turned off the television and tried to sleep. Because of a prior attempted burglary at a neighbor's house, he had left on all the outside lights of his house.

Blake then heard a tremendous pounding on his front door. His dog ran down the stairs and attacked the front door. Blake grabbed his gun and went downstairs. He looked through a window and saw a man wearing a black leather jacket and jeans, later identified as defendant Cotton, who was jumping around and pounding on the front door. Blake could see a large chunk of ham and a large knife on the front porch. Blake saw the man reach for the door, which Blake had left unlocked so that his girl friend could get into the house. Blake then opened the door, pointed the gun at [191 MICHAPP 381] the man's face and said: "Mother Fucker, I'm going to kill you if you move. Get on your hands and knees, put your hands behind your head, or I'm going to blow it off. I'm not fooling around with you, I had enough bullshit. Lay down." The man backed off, but did not lie down as Blake had ordered. He stood there shaking, with his eyes and mouth open.

Blake then noticed the man's eye movements, and out of the corner of his eye he could see other movement, so he fired his gun. Blake was hit at least once in the wrist with some object and was knocked to the ground. Infuriated, Blake fired a second shot. As he tried to close the door, someone on the other side was trying to break it down. Finally, Blake slammed the door shut and locked it. He ran upstairs, activated his alarm system, and grabbed his shotgun. From a window in the front of the house, Blake fired more shots. Blake saw only one person, but he knew there were at least two people present because he had been hit by a second person.

When the police arrived, Blake came back downstairs and saw blood, bone, and flesh on his front door and a trail of blood down the front walk. The police found a chunk of ham on the front porch, a machetelike knife on a ledge to the left of the front door, and a nine-millimeter semiautomatic weapon lying on the front lawn approximately ten to fifteen feet from the door. There were holes in the front lawn that appeared to have been caused by gunshots. Later, Blake discovered that the cable to his television had been cut, both at the telephone pole and at the point where it entered the house. Using a tracking dog, the police followed what appeared to be one set of footprints from the rear of Blake's house to a church parking lot less than two blocks away. In the parking lot, several [191 MICHAPP 382] drops of blood, a handcuff key, a nickel, and two pennies were found on the ground.

At Garden City Hospital, where he was taken for treatment of his arm, Blake saw defendant Cotton sitting in the waiting room and identified him to two police officers who were present. Coincidentially, these officers had been sent to the hospital to investigate a reported gunshot wound received by a George Merlino. The officers also had been informed of the incident at Blake's house. They arrested Cotton on the basis of Blake's identification. They also arrested Merlino after he and Cotton gave inconsistent explanations of how Merlino had been wounded. However, both men indicated that they were together when the shooting occurred. When Merlino's clothing was seized as evidence, rounds of nine-millimeter ammunition were found in his jacket. Cotton's leather jacket also was seized.

Subsequently, all the defendants gave statements to the police. Defendant Cotton told the police that defendant Wood had contacted him and defendant Merlino about going to an attorney's house to "put [a] gun to his head and ask him for the phone, the battery pack, and the watch." Cotton said that one of Wood's friends (Venters) and an individual known as "Toothless" (Powell) met Cotton in a church parking lot. They cut wires both on a telephone pole and underground. A gun was supplied, and someone brought a knife, which Toothless threw onto the front porch. Cotton said that Toothless knocked the gun out of the man's hand as he came out the house. They all ran away toward the woods, leaving their gun on the front lawn. Merlino was wounded, and he and Cotton went to the hospital.

Defendant Wood told the police that he was contacted by defendant Venters about having "a [191 MICHAPP 383] job done on a house of an attorney who had been talking too much." Wood said that he contacted Merlino and Cotton to assist and they met him and Venters during the day. The plan was to break into the house, take a portable telephone, battery pack, and watch, and to scare the attorney. Because too many people were around the house during the day, they decided to do the job at night. Wood said that he was grounded by his father and was unable to go along with the others that night.

Defendant Venters told the police that he had contacted Wood about the job and that Wood contacted Cotton and Merlino, whom Venters did not know. Venters contacted Powell when Wood could not go. These four met at 11:00 or 11:30 p.m. Defendant Powell's statement was generally consistent with those of the other defendants.

Defendant Merlino told the police that Venters supplied the semiautomatic weapon. He said that he had cut the two wires to the house, believing that they were telephone wires. He said that the ham was intended for Blake's dog. Merlino said he was stationed to the right side of the front door while Powell, who hit Blake in the arm with the gun, was stationed to the left. Merlino was shot and driven to the hospital, where they concocted a story for the police.

The statements of defendants Cotton, Powell, Venters, and Wood were admitted into evidence at their preliminary examination on June 1, 1988. Defendant Merlino's statement was admitted at his separate preliminary examination on August 10, 1988. The district court bound over all the defendants for trial on all the charges.

I

In order for a district court to bind over a [191 MICHAPP...