People v. Hatten
| Decision Date | 05 March 2015 |
| Docket Number | No. 319417,319417 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. D'SEAN HATTEN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court
Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.
Defendant appeals by right his convictions, following a jury trial, of five counts of assault with intent to commit murder, MCL 750.83, five counts of felonious assault, MCL 750.82, one count of domestic violence, MCL 750.81, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 280 to 560 months' imprisonment for each assault with intent to commit murder conviction, 12 to 48 months' imprisonment for each felonious assault conviction, 93 days' imprisonment for the domestic violence conviction, and two years' imprisonment for the felony-firearm conviction. The trial court also ordered defendant to pay $600 in court costs and $400 in attorney fees. We affirm defendant's convictions and sentences, but remand for the trial court for further proceedings to establish a factual basis for the $600 in costs imposed, or to alter that figure, if appropriate.
This case arises from two drive-by shootings that occurred in Detroit, Michigan, on or around May 23, 2013. Storm Brooks and defendant knew one another for approximately five years and together have a son, TH. Storm moved in with her mother, Rhonda Brooks, and Rhonda's husband, Lee Walker, at 19791 Rutherford in March 2013 because she and defendant had an argument, defendant was arrested, and defendant kicked in her door after he was released from jail. Rhonda testified that defendant had previously broken her windows and driven his vehicle rapidly up and down her street. Walker testified that every time defendant and Storm had a problem, defendant would destroy Walker's property and shoot Walker's cars.
According to Storm, she and defendant had an argument on the phone on May 23, 2013,1 and defendant was served with a personal protection order (PPO) against him that day. According to Storm, defendant came to the house at approximately 7:00 p.m. after he was served with the PPO. He was yelling, but Storm could not understand him.
Rhonda testified that defendant repeatedly called her on May 23, 2013. At approximately 6:00 p.m., defendant called and said, Rhonda testified that defendant sounded angry. Later that night, after defendant had come by the house and yelled, defendant's mother called and asked if she could pick up TH, but Storm did not think that would be a good idea. Rhonda heard defendant in the background threatening to come over and kick in the door. Rhonda called the police.
Walker testified that defendant made threatening calls to Rhonda throughout the day on May 23, 2013, and at approximately 5:00 p.m. or 6:00 p.m., defendant drove by the house in his burgundy Trailblazer, and was yelling what he was going to do and that they should move out of the house.
Walker testified that at approximately midnight that night, defendant called, said, "wakey, wakey," and told them that they should get out of the house. According to Walker, defendant said that he was on his way. At approximately 2:00 a.m. or 2:20 a.m., shots were fired at the house while Storm, TH, Rhonda, Walker, and Dushion Dennis, Rhonda's nephew, were present inside the house. Walker heard three shots. Storm grabbed TH and pulled him to the floor. Shots were fired into the room that she was in and hit near the floor. Storm ran upstairs with TH, called defendant's mother, and asked her if she had seen defendant. Defendant's mother said that she had not seen him. Rhonda called 911.
After the first shots were fired, the lights were turned on in the house and the occupants were waiting for the police. Walker and Dennis were at the front door. Approximately 20 minutes after the first shooting, a second set of shots was fired. Walker saw defendant shooting out the window on the driver's side of a gray car, wearing a white T-shirt. Subsequently, after the police left, Walker picked up spent cartridges from inside the house and gave them to the prosecutor.
Dennis did not know defendant, but had seen him before. At approximately 2:00 a.m. on May 23, 2013, Dennis heard shots enter the house and saw a gray Avenger drive by the house. Dennis told everyone to get down. He did not see who was in the car the first time it passed. Dennis felt fragments from the window fall on his head. While they were waiting for the police, Dennis again saw a gray Avenger coming down the street and the shots started again. Dennis saw defendant on the driver's side of the vehicle, hanging out the window, wearing a white T-shirt, holding a weapon and firing shots. Dennis was unable to count the shots, as they were fired rapidly.
While talking to the police after the shootings, Storm saw defendant in a gray Avenger driving down the street and pointed it out. Defendant drives a burgundy Trailblazer, but his ex-girlfriend drove an Avenger.
Officer Raymond Buford of the Detroit Police Department responded to a drive-by shooting at 19791 Rutherford on May 23, 2013. As he was talking to the victims, a gray Avenger drove by and the victims indicated that it was the vehicle that had just done the shooting. He and his partner, Officer Philip Parham, searched the area for the vehicle. They located and stopped the vehicle. A young woman2 was driving, defendant was in the front passenger's seat, and a man named Leon Pierce was also in the vehicle. The occupants were patted down, but no gun was found. The officers arrested defendant. Buford collected four shell casings near a bus stop on Seven Mile Road. Buford testified that one of the occupants of the house said that the passenger was the person shooting. Buford had been to the Rutherford address approximately eight months to a year earlier, after defendant had "shot the car up" that belonged to Storm or Walker.
Defendant was charged with five counts of assault with intent to commit murder, five counts of felonious assault, aggravated stalking, and domestic violence second offense. At the preliminary examination, the prosecution dismissed the charge of aggravated stalking. Before trial, the prosecution filed a notice of its intent to offer evidence of defendant's other acts of domestic violence under MCL 768.27b and MRE 404(b), including evidence that: (1) defendant had assaulted Storm on May 3, 2013, and kicked in her door after being released from jail, (2) defendant had shot Rhonda's car in November 2012, and (3) defendant had broken windows at Rhonda's home and in her van in April 2010.
At the start of trial, the trial court granted the prosecution's request to amend the information to add a count of felony-firearm. During trial, Storm testified that, in March 2013, she and defendant had an argument and defendant kicked in her door after he was released from jail. Rhonda testified that defendant had previously broken her windows and sped up and down the street. Walker testified that every time defendant and Storm had a problem defendant would destroy Walker's property and shoot his cars. Buford also testified that he had been to the address where the incident occurred approximately eight months to a year earlier, after defendant had shot up Storm's or Walker's vehicle. After the close of testimony, defendant objected to a jury instruction regarding other acts of domestic violence. The trial court allowed the instruction based on the "overriding manner" of the domestic violence statute. Defendant was convicted of all offenses charged in the second amended felony information.
At sentencing, trial counsel objected to the scoring of 50 points for offense variable (OV) 7 because there was no torture or terrorism. The trial court assessed 50 points for OV 7 based on its findings that defendant had called the house, said he was coming to shoot the house, and did so twice, which qualified as an act of terror. The trial court sentenced defendant within the minimum guidelines range to 280 to 560 months' imprisonment for each assault with intent tocommit murder conviction, 12 to 48 months' imprisonment for each felonious assault conviction, 93 days' imprisonment for the domestic violence conviction, and two years' imprisonment for the felony-firearm conviction, with 182 days' jail credit. The trial court also ordered defendant to pay $600 in court costs and $400 in attorney fees, in addition to other costs and fees. This appeal followed.
First, defendant contends that the trial court abused its discretion in admitting evidence of his other acts of violence to show his propensity to be violent. We disagree.
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Douglas, 496 Mich 557, 574; 852 NW2d 587 (2014) (citation and quotation marks omitted). The record does not contain a response from defendant to the prosecution's notice of intent, nor did defendant object to the admission of testimony regarding his prior acts of violence, but only objected to a proposed jury instruction regarding other acts of domestic violence. Therefore, with regard to the admission of evidence of prior acts of domestic violence, this issue is unpreserved. See Douglas, 496 Mich at 574. "Unpreserved claims of evidentiary error are reviewed for plain error affecting the defendant's substantial rights." People v Benton, 294 Mich App 191, 202; 817 NW2d 599 (2011). We review a trial court's decision to give a jury instruction to see if the instruction fairly presented the issues for trial and sufficiently protected the defendant's rights. People v Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997).
MRE 404(b)(...
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