People v. Cyr
| Decision Date | 12 April 1982 |
| Docket Number | 47056 and 48199,Docket Nos. 46025,46962 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard CYR, Ezell Witcher, Warner Nelson, a/k/a Pete Nelson, and Frank Smith, Defendants-Appellants. 113 Mich.App. 213, 317 N.W.2d 857 |
| Court | Court of Appeal of Michigan — District of US |
[113 MICHAPP 217] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Asst. Pros. Atty., and Janice M. Joyce, Asst. Pros. Atty., for the People.
Charles A. Haas & Associates, Detroit, for defendant-appellant Cyr.
Jean D. Artman, Detroit, for defendant-appellant Witcher.
Norris J. Thomas, Jr., Asst. State Appellate Defender, Detroit, for defendant-appellant Nelson.
Norman R. Robiner, Detroit, for defendant-appellant Smith.
Before J. H. GILLIS, P. J., and BEASLEY and DEEGAN, * JJ.
This consolidated appeal involves four defendants who were jointly tried on charges of conspiracy to violate the state's dog-fighting statute, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 750.49; M.S.A. Sec. 28.244. Four other people, who were tried jointly with these defendants, are not involved in this appeal.
Defendants Richard Cyr, Ezell Witcher and Frank Smith, were tried and found guilty by a jury. Defendant Warner Nelson was tried and found guilty in a bench trial. After being sentenced to three years probation, with the first six months to be spent in the Detroit House of Corrections, defendants appeal as of right.
Defendants Smith, Nelson and Witcher claim on appeal that it was error to charge them with an ongoing conspiracy rather than multiple substantive[113 MICHAPP 218] crimes or separate conspiracies based on each individual incident.
As to each defendant, it was charged that, from March 21, 1978, through and up to and including September 29, 1978, in Sumpter Township and other locations in Wayne and Monroe counties, defendants:
" * * * did wickedly, maliciously and feloniously conspire, combine, confederate and agree together and with each other and with divers [sic] other persons for the purpose and with intent then and there engage in the promotion of dog fighting by owning, housing, training dogs for the purpose of fighting, by baiting and fighting dogs, by providing locations where dog fights took place, and by participating in dog fights, contrary to Sec. 750.157a; M.C.L.A. and Sec. 750.49, C.L.1948 P.A.1976, No. 392 Sec. (1)."
M.C.L. Sec. 750.49; M.S.A. Sec. 28.244 states:
M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) states in part:
"Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein: * * *."
Defendants' specific arguments are that the evidence showing the limited involvement of each defendant constituted a fatal variance from the charge of conspiracy and that Wharton's Rule applies to preclude prosecuting substantive acts of dog fighting as a conspiracy. Defendants further argue that the statute covers all the completed substantive offenses provided in this case and, therefore, it was error for the prosecutor to charge the defendants with conspiracy to violate the statute when the statute was violated directly.
Defendants' argument lacks merit. First, defendants' analogy of this case to the "wheel having spokes but no rim with Furman [a co-defendant] at the hub" is incorrect. Defendants cite Kotteakos v. [113 MICHAPP 220] United States. 1 In that case, there was one individual, a broker, who interacted separately with other individuals who obtained loans. There was no conspiracy because each transaction between the broker and the individual was unconnected to the others, as the individual was only interested in his particular loan.
In the present case, however, the defendants interacted on more than one occasion with each other. There were two organized dog fights at which a number of defendants were present. There were several roll (practice) matches attended by various defendants, and each defendant was shown to have kept and trained dogs to fight. Also, there was a plan to have another organized dog fight that did not transpire when the identity of Timberlake, an undercover agent, became known. There was no central figure with unrelated, separate transactions. The evidence showed that during the six-month period there were ongoing dog fights involving the defendants.
There was no evidence that each act relating to dog fighting was a separate conspiracy even though, as the trial court stated, one can always analyze the situation as a separate series. In the present case, the overall conspiracy was to promote the fighting of dogs. This involved the training and keeping of dogs, the roll matches, the organized fights, the maintaining of a place to fight dogs, and the betting on the dog fights. All of these acts contributed to promoting dog fighting. Therefore, the evidence did not indicate separate miniconspiracies, and, even though there were separate substantive acts prohibited by the statute, there was also an overall conspiracy.
In addition, defendants' argument that Wharton's[113 MICHAPP 221] Rule was violated in the instant case lacks merit. Wharton's Rule was stated in People v. Sesi, 2 as follows:
The Court went on to say that there was general agreement that Wharton's Rule was applicable only where the number of alleged conspirators does not exceed the minimum number of persons logically necessary to complete the substantive offense.
Defendants' reliance upon People v. Davis 3 is misplaced. In that case, there was no ongoing conspiracy involving more than the number of persons needed to violate the statute. As a result, it could be found that the defendant conspired only with the suspect and, therefore, Wharton's Rule was applicable.
In the present case, defendants were charged with conspiracy to violate the dog-fighting statute. The statute does not necessarily require the cooperative acts of more than one person, as one person could violate the statute by fighting dogs alone. Betting on a dog fight would, of course, require the actions of more than one person. However, there were altogether 28 defendants charged in this case. Some defendants could not be located, one pled guilty, two were granted immunity for their testimony, the charge against one was dismissed, and eight were tried jointly, including the [113 MICHAPP 222] defendants. Therefore, the number of alleged conspirators clearly exceeded the number logically necessary to complete the substantive offense. Wharton's Rule does not apply.
Further, defendants' argument that it was improper to charge one conspiracy when the proofs indicated separate and distinct conspiracies is meritless as held by this Court in People v. Missouri. 4
All four defendants involved in this appeal claim that there was insufficient evidence to convict them. Nelson had a nonjury trial. A trial court's finding in a bench trial will not be set aside unless clearly erroneous. Special regard will be given to the trial court's opportunity to judge the credibility of the witnesses and its decision will be affirmed where there is sufficient evidence to support the court's findings. 5
In rendering its verdict against defendant Nelson, the trial court stated the following findings:
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