People v. Kent, 040918 MICA, 336245

Docket Nº336245
Opinion JudgePer Curiam.
Party NamePEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TORIONO KENT, also known as TORIONO RAHMAN KENT, Defendant-Appellant.
Judge PanelBefore: Servitto, P.J., and Markey and O'Connell, JJ.
Case DateApril 09, 2018
CourtCourt of Appeal of Michigan (US)

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v.

TORIONO KENT, also known as TORIONO RAHMAN KENT, Defendant-Appellant.

No. 336245

Court of Appeals of Michigan

April 9, 2018

UNPUBLISHED

Wayne Circuit Court LC No. 15-006532-01-FC

Before: Servitto, P.J., and Markey and O'Connell, JJ.

ORDER

Michael J. Talbot, Chief Judge, acting under MCR 7.211(E)(2), orders:

The opinions in the following appeals are hereby AMENDED to correct a clerical error in the date of issuance. The date on the opinions is corrected to read April 10, 2018.

334631 People of MI v Maurice Larnell Glover

335396 People of MI v Robert Daren Hale

336245 People of MI v Toriono Kent

336893 Goldcorp Inc v Varoujan M Basmajian

337595 Jeffery Beck v Alpine Shredders Limited

337951 Teddy 23 LLC v Department of Treasury

In all other respects, the opinions remain unchanged.

Per Curiam.

Defendant appeals by right his jury trial convictions of assault with intent to do great bodily harm less than murder, MCL 750.84, assault with intent to commit murder, MCL 750.83, first-degree home invasion, MCL 750.110a(2), intentional discharge of a firearm in a building, MCL 750.234b, carrying a dangerous weapon with unlawful intent, MCL 750.226, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to 66 to 120 months' imprisonment for the assault with intent to do great bodily harm less than murder conviction, 225 to 360 months' imprisonment for the assault with intent to commit murder conviction, 111 to 240 months' imprisonment for the first-degree home invasion conviction, 57 to 120 months' imprisonment for the intentional discharge of a firearm in a building conviction, two to five years' imprisonment for the carrying a dangerous weapon with unlawful intent conviction, and two years' imprisonment for the felony-firearm conviction. We affirm.

This case arises from two shootings of a single victim in Detroit. Late in the evening of June 30, 2015, defendant and his next-door neighbor, Ray Williams, were drinking together in their apartments in Detroit. Defendant's girlfriend, Christine Davis, was also present at that time. Eventually, defendant and Williams got into a "fistfight" over Williams's excessive noise, and according to Williams, he lost the fistfight and left defendant's apartment. Subsequently, Williams left their apartment building and headed towards another apartment building. As Williams approached the other apartment building, a red or maroon Ford automobile driven by Davis pulled up near Williams, and defendant exited the automobile with a black gun.

Defendant pointed his gun at Williams and began shooting. Williams estimated that defendant fired five to six shots before defendant stopped shooting, and then defendant fired "some more." Williams was "hit" on his lower right side. During trial, Williams lifted his shirt, and the prosecutor noted for the record that Williams displayed "two black marks in a linear, somewhat downward sloping direction on his right flank."

After defendant finished shooting, he entered the automobile and left the area. Williams went back home to his apartment afterwards. He did not call 911, and he eventually passed out in his apartment while he was still bleeding. Williams woke up the next day, and he went to Henry Ford Hospital for medical attention. During trial, Williams explained that he did not reveal the identity of his shooter at that time because he "was just seeking medical attention at [that] moment."

At approximately 10:00 p.m. on July 7, 2015, Williams saw Davis sitting on a balcony outside of his apartment building. For a moment, they locked eyes. Davis was on her "phone, " and she seemed "kind of jumpy" after she saw Williams. Later that evening, Williams saw a gray or brown compact SUV in front of the apartment building. At that time, Williams was sitting in the dark in the front of his living room by the window. There was only one light on in the apartment, and that light was in the apartment's sole bedroom. Williams's door was then kicked in. Defendant was standing in Williams's doorway accompanied by two other men.

Defendant was armed with a black .40 caliber gun; the second man was armed with an AK-47, and the third man held a "chrome .380." The three men began shooting in the direction of the bedroom. However, the men eventually stopped shooting in the direction of the bedroom, and they then began shooting at Williams. Williams testified that the men were approximately 3 feet away from him, and that he was hit with "graze wounds;" however, Williams was unsure if his wounds were caused by "the drywall that was floating around . . . ." The men did not say anything to Williams after they finished shooting, instead, they left the apartment, and then departed from the apartment building in the "gray SUV" Williams saw earlier.

Shortly after the police arrived, Williams clarified that he did not call 911. He told the police about the shooting, and he confirmed that he told the police that defendant "did the shooting." He also informed the police that defendant lived next door. At some point later, Williams identified defendant using a photographic lineup. Detroit Police Officer Harold Lewis testified that Williams also identified Davis using a photographic lineup; however, Officer Lewis clarified that Williams was not "100 percent sure" about the identification. Approximately one week later, defendant was arrested after he was seen leaving Davis's home in Westland.

Defendant contends that the trial court erred when it denied his motion to suppress evidence obtained from Davis's home because the search warrant relied upon by police was premised upon an affidavit that failed to supply probable cause. We disagree.

We review de novo the trial court's ultimate ruling on a motion to suppress evidence, while reviewing its factual findings for clear error. People v Barbarich, 291 Mich.App. 468, 471; 807 N.W.2d 56 (2011). We will determine a finding clearly erroneous when left with a definite and firm conviction that the trial court made a mistake. Id.

"The Fourth Amendment of the United States Constitution and article 1, § 11 of the Michigan Constitution protect against unreasonable searches and seizures." Id. at 472. "Generally, searches or seizures conducted without a warrant are presumptively unreasonable and, therefore, unconstitutional." Id. Evidence obtained unconstitutionally is inadmissible as substantive evidence in a criminal proceeding. In re Forfeiture of $176, 598, 443 Mich. 261, 265; 505 N.W.2d 201 (1993). "Thus, in order to show that a search was legal, the police must show either that they had a warrant, or that their conduct fell under one of the narrow, specific exceptions to the warrant requirement." People v Davis, 442 Mich. 1, 10; 497 N.W.2d 910 (1993).

Constitutional rights, including the freedom from unreasonable searches and seizures, are personal and may not be invoked by third parties. People v Brown, 279 Mich.App. 116, 130; 755 N.W.2d 664 (2008). "For an individual to assert standing to challenge a search, the individual must have had a legitimate expectation of privacy in the place or location searched, which expectation society recognizes as reasonable." Id. An overnight guest at a residence may have a protected legitimate expectation of privacy. People v Parker, 230 Mich.App. 337, 340; 584 N.W.2d 336 (1998), citing Minnesota v Olson, 495 U.S. 91, 93-94; 110 S.Ct. 1684; 109 L.Ed.2d 85 (1990). "The defendant has the burden of establishing standing, and in deciding the issue, the court should consider the totality of the circumstances." Brown, 279 Mich.App. at 130 (citations omitted). The Brown Court noted various factors relevant to standing include, " 'ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.' " [Id., quoting People v Powell, 235 Mich.App. 557, 563; 599 N.W.2d 499 (1999).]

"Probable cause to search must exist at the time a warrant is issued." People v Stumpf, 196 Mich.App....

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