People v. Green

• Decision Date: 20 March 1998
• Docket Number: Docket Nos. 194995,195607
• Citation: 228 Mich.App. 684,580 N.W.2d 444
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lynn GREEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney J. BAKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 444

580 N.W.2d 444

228 Mich.App. 684

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lynn GREEN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney J. BAKER, Defendant-Appellant.

Docket Nos. 194995, 195607.

Court of Appeals of Michigan.

Submitted Dec. 10, 1997, at Detroit.

Decided March 20, 1998, at 9:00 a.m.

Released for Publication June 29, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appeals, Research, and Training, for People.

State Appellate Defender by Ralph C. Simpson, Detroit, for David L. Green.

Laurence R. Imerman, Bingham Farms, for Rodney J. Baker.

Before SAWYER, P.J., and WAHLS and REILLY, JJ.

PER CURIAM.

Following a joint trial before a single jury, defendants David L. Green and Rodney J. Baker were both convicted of three counts of kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, three counts of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, carjacking, M.C.L. § 750.529a; M.S.A. § 28.797(a), carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424, being a felon in possession of a firearm, M.C.L. § 750.224f; M.S.A. § 28.421(6), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). In addition, Green was convicted of one count of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), assault with intent to commit great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, and two counts of retaining a financial transaction device without consent, M.C.L. § 750.157n; M.S.A. § 28.354(14). Baker was also convicted of two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2).

The trial court sentenced Green to forty to seventy years' imprisonment for each of his kidnapping convictions; forty to seventy years' imprisonment for each of the armed robbery convictions; forty to seventy years' imprisonment for the first-degree criminal sexual assault conviction; ten to fifteen years' imprisonment for the assault conviction; 4 to 7 1/2 years' imprisonment for the carrying a concealed weapon conviction; 4 to 7 1/2 years' imprisonment for the felon in possession of a firearm conviction; four to six years' imprisonment for each of the retaining a financial transaction device without consent convictions; two years' imprisonment for the felony-firearm conviction, to be served before all other terms; and forty to seventy years' imprisonment for the carjacking conviction to be served consecutively to all other sentences. Green was sentenced as a second-offense habitual offender, under M.C.L. § 769.10; M.S.A. § 28.1082. Green appeals as of right.

The trial court sentenced Baker to twenty-five to forty-five years' imprisonment for each of his kidnapping convictions; twenty-five to fifty years' imprisonment for each of the armed robbery convictions; forty to seventy years' imprisonment for each of the first-degree criminal sexual conduct convictions; 5 to 7 1/2 years' imprisonment for the carrying a concealed weapon conviction; 5 to 7 1/2 years' imprisonment for the felon in possession of a firearm conviction; two years' imprisonment for the felony-firearm conviction, to be served before all other terms; and forty to seventy years' imprisonment for the carjacking conviction to be served consecutively to all other sentences. Baker was also sentenced as a second-offense habitual offender, under M.C.L. § 769.10; M.S.A. § 28.1082. Baker appeals as of right. The appeals were consolidated. We affirm with regard to both defendants.

In the early morning hours of July 21, 1995, three female friends left a bar in the city of Flint, intending to drive to a friend's house. The women rode in a convertible with the top down. When they arrived at a red traffic signal next to another automobile, defendant Green got out of the other automobile and jumped into the back seat of their convertible. Startled, the women told Green to leave the convertible, but he refused. Instead, he told them to drive through the intersection, turn at the next street, and stop the car. As they passed through the intersection, Green removed a gun from his shorts. When they pulled over, Green demanded money from the women, who had only $7. Green told them it was not enough and struck the driver in the mouth with the barrel of his gun, knocking out three of her teeth. Then, pursuant to Green's instructions, the women stepped out of the convertible and the driver handed her car keys to Green. Defendant Baker appeared as the women got out of the convertible. Green told the women to strip and Baker said, "Don't make them do that, not here." Green then urinated on the face of the woman who had been driving the convertible. When he finished, he announced that they needed more money and told the women to get back into the convertible. The women rode in the back seat while Green drove with the convertible's top up. Baker sat in the front passenger seat holding the gun. Green stopped the car at a bank machine and, using ATM cards and PIN numbers taken from the women, he withdrew a total of $200 from two accounts.

The group then resumed driving. Baker and Green repeatedly told the women that they were going to kill them. At one point, Green angrily ordered the woman he had urinated on to climb up to the front seat. When she came forward, Baker made her sit in front of him on the floor of the convertible and perform oral sex on him. Green then stopped the convertible and ordered one of the other women to get out. After she stepped out of the car, Green asked her to perform oral sex on him. When she refused, Green hit her face five or six times and pushed her back into the car. Green then drove the group to a narrow fenced alley behind a school and parked. Baker took the woman who had performed oral sex on him to an area in front of the car, ordered her to lie on the ground, and raped her. At the same time, Green took the second woman he had hit to an area in back of the car, forced her to undress, and then raped her on the trunk of the convertible. The third woman was told to lie in the back seat.

Eventually, all parties entered the car and Green drove to a house near a field. On the way, Baker and Green told the women that they wanted the car radio. They also asked the women if they could have their telephone numbers and be friends. When they arrived at the house, Baker left the car and returned a short time later with a screwdriver. After driving around some more, Baker and Green removed the radio. The defendants then argued about splitting up the money and about who would get the radio. Baker left with the radio and Green wiped down the car with a towel. When he was done, Green told the women they could leave. The women then drove the convertible to a restaurant and called the police. At trial, Green testified on his own behalf. He denied having a gun and urinating on one of the women, and he described the rest of the night's events as being consensual.

Docket No. 194995

Defendant Green first argues that he was denied a fair trial as a result of the trial court's failure to sever the charge of being a felon in possession of a firearm from the other charges against him. We disagree. Because Green did not move to sever the prosecutions or make any sort of objection below, he has failed to preserve this issue for appeal. See People v. Mayfield, 221 Mich.App. 656, 660, 562 N.W.2d 272 (1997). Therefore, we will review this issue only if necessary to avoid manifest injustice. Id. at 661, 562 N.W.2d 272.

Before the selection of the jury, the trial court informed the prospective jury panel that defendant Green had been charged with possessing a firearm when ineligible to do so because of a prior conviction of larceny from a person. During trial, the parties and the trial court addressed the possibility of prejudice stemming from the existence of the felon-in-possession charge. Defense counsel expressed concern that Green might be prejudiced by any mention of the nature of his prior conviction. Accordingly, the parties agreed to stipulate that Green had been convicted of an unspecified prior felony. The jury was so instructed and Green did not object to the instruction. Because the issue was resolved to the apparent satisfaction of all parties at trial, we are hesitant to upset the result of that consensus on appeal. A defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial. People v. Roberson, 167 Mich.App. 501, 517, 423 N.W.2d 245 (1988). To do so would allow a defendant to harbor error as an appellate parachute. Id.

This Court has explained that "adequate safeguards" can be erected to ensure that a defendant charged with both felon-in-possession and other charges arising from the same incident suffers no unfair prejudice if a single trial is conducted for all the charges. See Mayfield, supra at 659-660, 562 N.W.2d 272. Specifically, these "safeguards" are (1) the introduction by stipulation of the fact of the defendant's prior conviction, (2) a limiting instruction emphasizing that the jury must give separate consideration to each count of the indictment, and (3) a specific instruction to consider the prior conviction only as it relates to the felon-in-possession charge. See id. at 660, 562 N.W.2d 272, citing United States v. Mebust, 857 F.Supp. 609, 613 (N.D.Ill., 1994). In this case, the fact of Green's prior felony conviction was introduced by stipulation, the specific nature of Green's prior conviction was not mentioned apart from the initial remark to the prospective jury panel, and the trial court instructed the jury that defendants were entitled to a separate determination regarding each of the charges against them. Although the trial court did not give a specific instruction that the stipulation was to be...