People v. Hercules-Lopez, No. 280887 (Mich. App. 6/30/2009), No. 280887.
| Decision Date | 30 June 2009 |
| Docket Number | No. 280887. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARCO ANTONIO HERCULES-LOPEZ, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Kent Circuit Court, LC No. 06-000220-FC
Before: Markey, P.J., and Murphy and Borrello, JJ.
UNPUBLISHED
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.157a, and possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to concurrent prison terms of 10 to 27 years for the robbery conviction and 9 to 27 years for the conspiracy conviction, to be served consecutive to a two-year term of imprisonment for the felony-firearm conviction. We reverse and remand for a new trial.
As an initial matter, we disagree with defendant's argument that the evidence was insufficient to support his conspiracy conviction. In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005).
Defendant argues that he could not be convicted of conspiracy because the evidence showed that he agreed to participate in the offense only to gather evidence to report codefendants Martin Harris and Solivan Francisco Solivan to the police, which he did. We disagree.
Any person who conspires together with one or more persons to commit an offense prohibited by law or to commit a legal act in an illegal manner is guilty of conspiracy. MCL 750.157a. Conspiracy requires proof of both the intent to combine with others and the intent to accomplish the illegal objective. People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). This may be shown by evidence a defendant participates cooperatively to further the objective of an existing conspiracy. People v Blume, 443 Mich 476, 483-484; 505 NW2d 843 (1993). Feigned agreement or participation is insufficient. People v Smyers, 398 Mich 635, 640; 248 NW2d 156 (1976); People v Barajas, 198 Mich App 551, 558-559; 499 NW2d 396 (1993).
Thus, to establish defendant's guilt of conspiracy, the prosecutor was required to prove that defendant intended to agree with Solivan and/or Harris to commit the robbery, and intended the robbery occur. It is undisputed that defendant was not working on behalf of the police or with police authorization. Therefore, his agreement to participate in the robbery could not be excused on this basis, and he could not claim feigned agreement or participation. Compare Smyers, supra, and People v Atley, 392 Mich 298, 311-312; 220 NW2d 465 (1974), overruled in part on other grounds People v Hardiman, 466 Mich 417; 646 NW2d 158 (2002). Even if defendant's claim that he wanted to see Harris and Solivan punished for their involvement was true, and that he participated in the robbery toward that end, the evidence showed that he agreed to commit the robbery and intended for it to occur. Accordingly, there was sufficient evidence of defendant's guilty intent to support his conspiracy conviction.
We agree with defendant, however, that reversal is required because the trial court gave a supplemental jury instruction1 outside of defense counsel's presence and without defendant's having waived his right to counsel's presence. Because defendant did not object when the trial court initially made a record of its communication with the jury, which was after the jury returned its verdict, this issue is unpreserved. But an unpreserved constitutional error that is structural in nature requires automatic reversal. People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000).
The Sixth Amendment right to counsel attaches to criminal prosecutions when the judicial process is initiated, and it extends to every "critical stage" of the proceeding. People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). The complete denial of counsel at a critical stage of a criminal proceeding is structural error. Roe v Flores-Ortega, 528 US 470, 483; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Duncan, supra at 51-52. A "critical stage" is "a step of a criminal proceeding, such as an arraignment, that [holds] significant consequences for the accused." Bell v Cone, 535 US 685, 695-696; 122 S Ct 1843; 152 L Ed 2d 914 (2000). This Court has also defined a "critical stage" requiring counsel as one in which "counsel's absence might derogate from the accused's right to a fair trial." People v Buckles, 155 Mich App 1, 6; 399 NW2d 421 (1986).
A trial court's communication with a deliberating jury may constitute a "critical stage" of the proceedings depending on the nature of the communication. Compare French v Jones, 332 F3d 430 (CA 6, 2003) (), and Hudson v Jones, 351 F3d 212 (CA 6, 2003) ().2 Unlike in Hudson, the trial court here did not simply reread an unchallenged original instruction, but rather crafted a new, nonstandard supplemental instruction in response to the jury's question, similar to the situation in French. Because the nature of the instruction was substantive, it involved a critical stage of the proceedings. Therefore, prejudice is presumed and automatic reversal is required unless defendant waived his right to have counsel present. The record does not indicate that defendant did so. A silent record is insufficient to establish a valid waiver. People v Willing, 267 Mich App 208, 220; 704 NW2d 472 (2005). Accordingly, we must reverse defendant's convictions and remand for a new trial. Duncan, supra at 51-52.
In light of our decision, it is unnecessary to address defendant's remaining issues on appeal.
We reverse and remand for a new trial. We do not retain jurisdiction.
I agree with the majority that there was sufficient evidence to support the conspiracy conviction. I respectfully disagree, however, with the majority's conclusion that reversal is required because the trial court responded in writing to a jury question absent the presence and input of defense counsel. Accordingly, I concur in part and dissent in part.
During jury deliberations, the jurors sent a note to the court asking whether defendant's intent (motives, goals, and thoughts) changed any verbal agreements that defendant made to commit the crime of armed robbery, which question, as indicated in the note, was relative to resolution of the conspiracy charge. Defense counsel was not present in the courtroom at the time the note was sent, nor was counsel present when the court provided the jury with a written response to the question.1 The court wrote, "If the defendant actually agreed with another to commit a crime, it does not matter why he agreed." Defense counsel returned to the courtroom shortly thereafter, was informed of what transpired relative to the note and response, and did not object to the court's actions or ask for a change in the supplemental instruction. The jury subsequently returned a verdict against defendant. Earlier, when the trial court was reading all of the instructions to the jury, at which time defense counsel was present, the court stated in pertinent part:
You need to understand that it is no defense which excuses criminal behavior that a defendant acted, if you find that he did, for purposes of helping the police. That can, in very limited circumstances, be a defense but only in two circumstances and they're not even claimed here.
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So what you've got to decide is did he participate in the crimes in ways that satisfied the statute, but there is no excuse or justification or over-arching defense for the fact that he claims he did it to help the police because he doesn't even claim he did it in the way that would make that a defense.
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And there was some suggestion here as I heard some things unfold of what's called the defense of duress; that, you know, maybe he did what he did because he was in fear of what would happen if he didn't do it. That way again . .. can be a defense but under extremely limited circumstances, and he doesn't claim those circumstances existed here, so that's not a defense either.
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Like I said yesterday, to prove that kind of a charge [conspiracy] with the evidence presented at this trial, all of it taken as a whole, has to do is convince you that Mr. Hercules-Lopez agreed with somebody else to commit an armed robbery.
"The Sixth Amendment safeguards the right to counsel at all critical stages of the criminal process for an accused who faces incarceration." People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004). "A critical stage of the proceedings is any stage where the absence of counsel may harm a defendant's right to a fair trial[.]" Duncan v Michigan, ___ Mich ___; ___ NW2d ___, issued June 12, 2009 (Docket Nos. 278652, 278858, and 278860), slip op at 7. In Van v Jones, 475 F3d 292, 306-307 (CA 6, 2007), the Sixth Circuit for the United States Court of Appeals observed:
In the last several years, our court has recognized as critical stages both the issuance of jury reinstructions and the pretrial period, broadly defined. In French v Jones, 332 F3d 430 (6th Cir. 2003), a panel affirmed the district court's grant of a writ of habeas corpus where the "trial judge delivered a supplemental instruction to a deadlocked jury" without the presence of the defendant's counsel. Id. at 438. We cited [several cases] . . . in support of our conclusion that harmless error analysis was not warranted where counsel was shown to be absent during a critical stage. Id. at 438-39. This court confirmed and reiterated the holding of French in Caver v Straub, 349 F3d 340, 350 (6th Cir. 2003), a case presenting similar facts,...
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