People v. Hill

• Court: Court of Appeal of Michigan (US)
• Citation: 257 Mich. App. 126,667 N.W.2d 78
• Docket Number: Docket No. 237014.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton R. HILL, Defendant-Appellant.
• Decision Date: 17 June 2003

667 N.W.2d 78
257 Mich. App. 126

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Milton R. HILL, Defendant-Appellant

Docket No. 237014.

Court of Appeals of Michigan.

Submitted June 10, 2003, at Detroit.

Decided June 17, 2003, at 9:10 a.m.

Released for Publication August 11, 2003.

667 N.W.2d 81

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Mary DuFour Morrow, Assistant Prosecuting Attorney, for the people

Ashford & Associates, PC (by Linda D. Ashford), Detroit, for the defendant.

Before: GRIFFIN, P.J., and MURPHY and JANSEN, JJ.

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667 N.W.2d 80

MURPHY, J

Defendant appeals as of right his jury-trial convictions of armed robbery, M.C.L. § 750.529; possession of explosive or combustible substances with intent to use unlawfully, M.C.L. § 750.210(2)(a); placing offensive or injurious substances in or near real or personal property, M.C.L. § 750.209(1)(b); and willfully and maliciously setting fire (preparation to burn),¹ M.C.L. § 750.77(1)(d)(i).² Defendant was sentenced to four to fifteen years' imprisonment on the armed-robbery conviction, two to fifteen years' imprisonment on the explosive or combustible-substances conviction, two to fifteen years' imprisonment on the offensive- or injurious-substances conviction, and two to ten years' imprisonment on the "preparation to burn" conviction. We affirm in part and reverse in part.

I. BASIC FACTS

This case arises out of an armed robbery of a Detroit-area Citgo gasoline station by two masked individuals, and possibly an accomplice waiting outside the station, during the early morning hours of April 15, 2000. The weapon used in the robbery was a sawed-off shotgun, which was pointed at the station clerk by one of the robbers, while the other robber sprayed gasoline from a small container over the bulletproof glass barrier that separated customers from station personnel. The robber spraying the gasoline also flicked a lighter during the robbery. The gas station clerk, frightened by the weapon and the implicit threat of arson, turned over cash to the robbers.

At trial, the jury heard testimony by numerous police officers, the gas station clerk, and defendant. The clerk testified that he was the only person working at the station when it was robbed at approximately 3:00 a.m. The clerk stated that he was terrified, despite the bulletproof glass, when he was confronted with the barrel of a shotgun and an accelerant being sprayed on the glass barrier. The two robbers demanded money, and the clerk handed over $70 to $100 in one-dollar bills by pushing the money through the small cashtray opening in the glass barrier, which was partially filled with gasoline. The robbers left the gas station after they became nervous about a customer's vehicle pulling up outside the station. The clerk indicated that the customer ran away,

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leaving his car behind, after seeing that a robbery was taking place. The clerk could not identify the robbers because of their masks, and he was unsure whether they left the station on foot or in a vehicle, or whether any other perpetrators were involved. He further testified that he never saw defendant in the station preceding the robbery as asserted by defendant in his testimony.

A responding police officer testified that he and his partner received radio communications regarding the armed robbery and about unidentified persons who got out of a vehicle after a police pursuit. The officer testified that he proceeded to the gas station and that upon arriving at the station, he smelled gasoline inside and found that an accelerant had been sprayed on the glass barrier and in the cash tray.

Another police officer testified that he was in the vicinity of the station when he received a call about a drag race, and on heading to the site of that matter, a brown Buick LeSabre raced by him at an excessive rate of speed. The officer turned his patrol car around and pursued the speeding vehicle, which had three occupants. The officer could not identify the occupants, aside from the driver being a black male, because the vehicle sped by his patrol car. The officer activated his lights and siren, but the Buick LeSabre did not slow and eventually it crashed into a cemetery gate and came to a stop. The cemetery was about a mile from the gas station. The officer did not see the occupants get out of the LeSabre, and when he reached the location where the vehicle was resting, the engine was still running, the driver's side door was jammed closed, the vehicle was empty, and a shotgun was sitting on the front seat.

Police officers searched the cemetery and found defendant on the opposite side of the cemetery from where the LeSabre crashed. Defendant was lying on his belly and crawling under some bushes when he was apprehended. He blurted out that he did not rob that place. It was not until after the LeSabre crashed in the cemetery that officers pursuing the vehicle became aware of the armed robbery.

According to the police, defendant subsequently told them that he and two occupants of the LeSabre, who he specifically named and identified as coworkers at Atlas Oil, got out of the vehicle and ran in separate directions. Defendant maintained to the police that his two cohorts ran out of the gas station and into defendant's vehicle. A police officer testified that defendant expressly stated "we did the robbery."

A police evidence technician took the stand to identify objects collected from the LeSabre after the crash. The technician had also collected a sample of gas from the inside of the Citgo station. The technician identified the following items found in the LeSabre: gasoline contained in a dishwashing liquid bottle, a sawed-off shotgun, shotgun ammunition, several one-dollar bills,³ a mask, and a black wallet.

Defendant testified on his own behalf. He testified that on the date of the robbery, he was employed by Atlas Oil as a truck driver, which required him to make fuel deliveries to various locations. Defendant asserted that he would typically smell like gasoline after working a shift because of the nature of his job. On the night of the robbery, defendant claimed that he finished his shift at work and drove to the Citgo station in his Buick LeSabre to pick up a snack. According to defendant, he entered the gas station carrying his keys

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and leaving his vehicle parked in the station parking lot. When he left the station after purchasing soda pop and chips, he noticed an unknown individual meandering around the LeSabre. Defendant claimed that he began to approach the individual standing near the LeSabre when he noticed that two other unknown individuals were sitting in the front seat of his vehicle. At this point, he became scared and turned to run; however, the individual standing outside defendant's vehicle forced defendant into the backseat of the vehicle at gunpoint. One of the individual's drove the LeSabre away, and during the drive, defendant maintained that he was forced at gunpoint to keep his head down by a gun-toting individual sitting in the backseat. The vehicle sped down the roadway and subsequently crashed into the gate at the cemetery and came to a stop, although defendant alleged that he did not see anything until he got out of the LeSabre after the crash. Defendant was unsure how the individuals started his vehicle because he had carried the keys inside the gas station and dropped them outside the station when he was first held at gunpoint.

After the crash, defendant got out of the LeSabre and crawled along the cemetery fence in an injured state. He testified that he did not know in which direction the other individuals ran. Defendant claimed that he crawled and hid under some bushes to avoid being found by his three alleged abductors. According to defendant, an officer then came upon him as he hid in the bushes and placed him under arrest after first striking defendant in the back of the head. Defendant denied any involvement in the robbery, and he denied knowing anyone who was involved. Defendant asserted that he gave the police the names of a cousin and a coworker as being involved in the robbery after police threatened him with mace; however, defendant later denied that those individuals had anything to do with the crime. Defendant, looking at a picture of his LeSabre, acknowledged that the vehicle had a broken steering column, but he testified that it was not broken at the time he entered the gas station.⁴

On cross-examination, defendant stated that he was very familiar with the clerk who served him on the night of the robbery because defendant went into the store almost every other night, and they typically would joke around. This directly contradicted the clerk's testimony that he had not seen defendant in the store before the robbery. Defendant admitted that he parked in one of the furthest parking spots in the gas-station lot despite there being open, closer spots. Defendant also acknowledged that the shotgun found by police belonged to him and had been sitting under the LeSabre's backseat when defendant was abducted. He admitted sawingoff part of the barrel of the gun just for the "heck" of it.

A rebuttal witness for the prosecution, a police officer who questioned defendant at the cemetery, testified that at the time defendant was apprehended, he stated that he had been abducted by two black males six hours earlier.

The jury returned the guilty verdicts as indicated above. Defendant appeals the convictions as of right.

II. APPELLATE ARGUMENTS and ANALYSIS

A. Prosecutorial Misconduct

Defendant first argues that the prosecutor committed misconduct when

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the police indicated at the time of trial that a prospective and important defense witness was now considered a potential suspect in the armed robbery, which resulted in the...