People v. Kimble, Docket No. 227212.

• Decision Date: 19 July 2002
• Docket Number: Docket No. 227212.
• Citation: 651 N.W.2d 798,252 Mich. App. 269
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard A. KIMBLE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 798

252 Mich. App. 269

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard A. KIMBLE, Defendant-Appellant.

Docket No. 227212.

Court of Appeals of Michigan.

Submitted January 9, 2002, at Detroit.

Decided July 19, 2002, at 9:05 a.m.

Released for Publication October 6, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for the people.

Craig A. Daly, P.C. (by Craig A. Daly), Detroit, for the defendant on appeal.

Before: COOPER, P.J., and GRIFFIN and SAAD, JJ.

SAAD, J.

Defendant appeals as of right from his bench trial conviction of second-degree murder, M.C.L. § 750.317, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The trial court sentenced defendant to consecutive prison terms of thirty to seventy years for the second-degree murder conviction and two years for the felony-firearm conviction. We affirm defendant's convictions, but remand for resentencing.

In this disturbing case, defendant shot and killed twenty-three-year-old Monique Trotty in an effort to steal the wheel rims from her fiancé's car. Defendant argues that the trial court erred in denying his motion to suppress evidence of his confession to the police. We disagree.

In deciding whether a defendant validly waived the right against self-incrimination, we review the entire record de novo to determine whether the trial court properly admitted a confession. People v. Daoud, 462 Mich. 621, 629, 614 N.W.2d 152 (2000). "Because this Court gives ample deference to the trial court, it will not reverse the trial court's findings unless they are clearly erroneous." People v. Snider, 239 Mich.App. 393, 417, 608 N.W.2d 502 (2000). A finding is clearly erroneous if this Court is left with a definite and firm conviction that the trial court made a mistake. People v. Manning, 243 Mich.App. 615, 620, 624 N.W.2d 746 (2000).

Defendant claims that the trial court erred in failing to suppress his statement because he testified at his Walker¹ hearing that the police questioned him after he requested an attorney and despite his initial refusal to give a statement. At the hearing, Officer Michelle Jones testified that she took defendant's statement after she read defendant his Miranda² rights and after defendant signed an advice of rights form stating that he understood his rights and wished to make a statement. In addition to Officer Jones' written account of defendant's version of the events, defendant added additional information to the statement in his own handwriting.

Defendant testified at the Walker hearing that he "lied" when he signed the advice of rights form. Defendant further testified that he made the statement to Officer Jones after he repeatedly asked for a lawyer and after two male police officers threatened to lock him up "forever." However, defendant later admitted that the two male officers did not really intimidate him or force him to give a statement. Further, defendant testified that what he told Officer Jones was "the truth" and that he gave his handwritten statement "freely, knowingly, and voluntarily."

In finding that defendant validly waived his right to remain silent, the trial court specifically found that defendant's testimony regarding his request for an attorney was not credible. "[B]ecause the demeanor of witnesses and credibility are so vitally important to a trial court's determination," this Court gives deference to the trial court's credibility determination at a Walker hearing. Snider, supra at 418, 608 N.W.2d 502. Defendant offers no reason to second-guess the trial court's credibility determination and we find no clear error in the trial court's finding that defendant's testimony regarding his confession was unworthy of belief. Accordingly, the trial court did not err in denying defendant's motion to suppress the statement at trial.³

Defendant also contends that this Court should remand this case for resentencing because the trial court erred in scoring certain offense variables (OV) contained in the legislative guidelines.

Specifically, defendant says that the trial court erroneously scored OV 9 at ten points. Under M.C.L. § 777.39(1)(c), the trial court must assign ten points to this variable if the crime involves two to nine victims. Further, M.C.L. § 777.39(2)(a) specifically states that, in scoring the variable, the trial court must "[c]ount each person who was placed in danger of injury or loss of life as a victim." The victim's fiancé and child were both next to the victim inside the car when defendant shot the victim through the windshield. Clearly, defendant placed all three in danger of injury or loss of life and, therefore, the trial court correctly assigned ten points to OV 9.

Defendant also claims that the trial court misscored OV 10 at fifteen points. Under M.C.L. § 777.40(1)(a), the trial court must assign fifteen points to this variable if "[p]redatory conduct was involved." The statute defines predatory conduct as "preoffense conduct directed at a victim for the primary purpose of victimization." MCL 777.40(3)(a). Here, the record reflects that defendant and his accomplices drove around for an hour, looking for a car to steal so they could remove and sell the wheel rims. The record further indicates that, when defendant and his cohorts saw the victim driving a car with valuable rims, they followed the victim home, watched the victim pull into the driveway, and shot the victim in order to steal the car. Defendant's preoffense behavior in seeking out a victim and following this victim home for the specific purpose of committing a crime against her was clearly predatory within the meaning of the statute. Accordingly, the trial court did not err in assigning fifteen points for OV 10.

Finally, defendant asserts that the trial court erred in assigning five points for OV 16. MCL 777.46. Though defendant argued at sentencing that OV 16 should be scored at one point instead of five points, defendant did not preserve his argument that OV 16 is inapplicable to a murder conviction. While our dissenting colleague asserts that defendant waived appellate review of this issue under M.C.L. § 769.34(10),⁴ we hold that defendant's failure to assert this argument before the trial court does not preclude appellate review under the plain error doctrine. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999).

Though our dissenting colleague asserts that defendant forfeited his claim of error, it is well settled that "[m]ere forfeiture ... does not extinguish an `error.'" People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000). Rather, "[a]n appellate court properly may review forfeited claims of error when the forfeited claim involves a plain error affecting the defendant's substantial rights." People v. Coy, 243 Mich.App. 283, 287, 620 N.W.2d 888 (2000), citing People v. Grant, 445 Mich. 535, 547-549, 552-553, 520 N.W.2d 123 (1994). Though the legislative guidelines are clear, the record indicates that the prosecutor, defense counsel, and the trial court all failed to realize that OV 16 does not apply to this offense. Regardless whether defendant forfeited this claim by failing to timely raise it, the trial court's erroneous application of this offense variable constitutes a plain error that affected defendant's substantial rights.

MCL 777.21 provides that, to determine the appropriate minimum guidelines sentence range, the trial court must do the following:

(a) Find the offense category for the offense from part 2 of this chapter. From section 22 of this chapter, determine the offense variables to be scored for that offense category and score only those offense variables for the offender as provided in part 4 of this chapter. Total those points to determine the offender's offense variable level.

As noted, M.C.L. § 777.21 directs the trial court to "score only those offense variables" that apply. Offense variable 16 does not apply here because second-degree murder is in the "crimes against a person" category, M.C.L. § 777.16p, and, under § 22, for crimes against a person, OV 16 applies only to the home invasion statute. MCL 777.22(1). Here, therefore, the trial court committed plain legal error in applying OV 16 to this offense in violation of M.C.L. § 777.22(1).⁵

Regardless whether we characterize this as a "misscoring"⁶ issue under M.C.L. § 777.46 or a violation of M.C.L. § 777.22(1), we hold that defendant is entitled to resentencing on the basis of the plain error doctrine of Carines: To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. [United States v. Olano, 507 U.S. 725, 731-734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).] The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. Id. at 734, 113 S.Ct. 1770." It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error "`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." Id. at 736-737, 113 S.Ct. 1770. [Carines, supra at 763, 597 N.W.2d 130.]

The trial court misapprehended and misapplied the law and, where the result is a sixty-month increase in defendant's sentence, we hold that defendant's rights were clearly prejudiced.⁷ Clearly, the trial court, sitting as...