People v. Lee

• Decision Date: 28 December 2000
• Docket Number: Docket No. 219538.
• Citation: 622 N.W.2d 71,243 Mich. App. 163
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald LEE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

622 N.W.2d 71

243 Mich. App. 163

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald LEE, Defendant-Appellant.

Docket No. 219538.

Court of Appeals of Michigan.

Submitted October 10, 2000, at Grand Rapids.

Decided November 3, 2000, at 9:05 a.m.

Released for Publication December 28, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Tamara L. Hoffstatter, Assistant Prosecuting Attorney, for the people.

Martin J. Beres, St. Clair Shores, for the defendant on appeal.

Before FITZGERALD, P.J., and HOOD and McDONALD, JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of armed robbery, M.C.L. § 750.529; MSA 28.797. He was sentenced to twenty-five to forty years' imprisonment, and he appeals as of right. He challenges the sufficiency of the evidence, the propriety of allowing other witnesses to testify about the victim's identification, the jury instructions, a photographic lineup, and his sentence. We affirm.

The charges arose out of the armed robbery of Manson Grant, an eighty-one-year-old man for whom defendant did yard work and odd jobs. The victim identified defendant as the person who assaulted and robbed him. Unfortunately, the victim died before trial, but the prosecutor's attempt to amend the information to charge defendant with murder was unsuccessful.

Defendant's first argument may be summarized as a contention that there was insufficient evidence that he was the person who assaulted the victim and insufficient evidence that he feloniously took any property from the victim's person or presence. Neither argument has merit.

The evidence, when viewed in a light most favorable to the prosecution, was sufficient to show that the essential elements of the crime were proved beyond a reasonable doubt.

In reviewing the sufficiency of the evidence, all conflicts with regard to the evidence must be resolved in favor of the prosecution. People v. Terry, 224 Mich.App. 447, 452, 569 N.W.2d 641 (1997). Further, this Court should not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses. People v. Wolfe, 440 Mich. 508, 514, 489 N.W.2d 748 (1992), amended 441 Mich. 1201, 489 N.W.2d 748 (1992). And circumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime. People v. Allen, 201 Mich.App. 98, 100, 505 N.W.2d 869 (1993).

The essential elements of the charged crime include (1) an assault and (2) a felonious taking of property from the victim's person or presence (3) while the defendant is armed with a dangerous weapon described in the statute. People v. Norris, 236 Mich.App. 411, 414, 600 N.W.2d 658 (1999). "Robbery is committed only when there is larceny from the person, with the additional element of violence or intimidation." People v. Harding, 443 Mich. 693, 731, 506 N.W.2d 482 (1993) (Riley, J.), citing People v. Chamblis, 395 Mich. 408, 425, 236 N.W.2d 473 (1975), overruled in part People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982). Armed robbery is a specific intent crime, and the prosecutor must establish that the defendant intended to permanently deprive the owner of property. People v. King, 210 Mich.App. 425, 428, 534 N.W.2d 534 (1995).

At trial, there was testimony from Donette Bolden, the victim's former daughter-in-law, Detective Clifton Johnson, and Renee Williams, a neighbor, that the victim indicated that the "yard boy" committed the crime. Bolden testified that defendant was the only person that the victim called "yard boy." Defendant's speculation that the victim may have called other people "yard boy" is completely unsupported by the record developed at trial. Also, John Jamerson, defendant's cellmate, testified that defendant admitted committing the assault on the victim with a lead pipe. Finally, the victim picked defendant out of a photographic lineup. Viewing this testimony in a light most favorable to the prosecution, there clearly was sufficient identity evidence for the jury to determine that defendant was the perpetrator of the assault and robbery on the victim.

There was also sufficient evidence that there was a felonious taking of property from the victim. Bolden and Williams testified that it was a known fact that the victim kept large sums of cash on his person. Bolden testified that the victim kept his wallet attached to his person by a chain. Bolden also testified that on the evening of July 24, 1995, she saw the victim with a "wad" of cash after he gave her some money to pay his bills. When the victim was found the following afternoon, his wallet was not attached to his pants by a chain. It was found two to three feet away from him and was empty. The victim's pockets were turned inside out. There was evidence that the victim and the defendant argued about $25 earlier in July and again, by defendant's admission to Jamerson, on the day of the assault. On July 25, 1997, the day the victim was found, defendant went to a pawn shop and redeemed two items at a cost of almost $300. Further, the victim told Johnson that he had money on his person and, after defendant hit him with the pipe and knocked him out, he awoke to find his pockets empty and the money gone. Bolden additionally testified that after the incident not one penny of money was found in defendant's house.

From this evidence, a jury could reasonably infer that the victim had cash on his person at the time defendant came to his house and that defendant deprived him of that cash, leaving him incapacitated and with an empty wallet and pockets. Therefore, viewed in a light most favorable to the prosecution, the evidence was sufficient to indicate that defendant assaulted the victim, that defendant intended to and, in fact, took property from the victim, and that defendant was armed with a lead pipe. Next, defendant argues that the trial court abused its discretion when it allowed Bolden, Johnson, and Williams to testify about statements the victim made. We disagree and find that the statements were properly admitted pursuant to MRE 803(24), the catchall exception to the hearsay rule.

MRE 803(24) provides in relevant part:

Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

The only case interpreting MRE 803(24) is People v. Welch, 226 Mich.App. 461, 574 N.W.2d 682 (1997), which the defendant argued that the trial court improperly refused to allow a hearsay statement into evidence under MRE 803(24). Welch, supra, pp. 464-468, 574 N.W.2d 682. An officer had recorded, in his report, that a witness at the chaotic scene of the crime approached the officer and indicated that the victim, before jumping off a bridge, said she was going to kill herself. The officer observed the witness, who was named Simmons, laughing and giggling about the situation before approaching and making the statement. The officer did not get any information from Simmons about where Simmons was when, or under what circumstances, he allegedly heard the victim state that she was going to kill herself. The trial court refused to allow the hearsay statement under MRE 803(24), finding that no other person had heard the victim make such a statement, that there was no indication that Simmons heard the statement himself, that the group was laughing and giggling about the incident, which reduced the trustworthiness of the statement, that sixteen minutes passed between the time Simmons allegedly heard the statement and the time he told the officer about it, that the scene was chaotic, and that the officer did not write down the statement as Simmons gave it to him. Welch, supra, pp. 465-466, 574 N.W.2d 682. This Court noted that MRE 803(24) had not been interpreted in Michigan and that it needed to look at analogous cases discussing the federal catchall exceptions, FRE 803(24) and 804(b)(5).

In United States v. Barrett, 8 F.3d 1296, 1300 (C.A.8, 1993), the Eighth Circuit Court of Appeals considered the issue whether hearsay evidence of a child's statements concerning her mother's abuse were sufficiently trustworthy to be admissible under FRE 803(24):

"In order to comply with the Sixth Amendment, hearsay statements offered into evidence must bear `adequate "indicia of reliability."' This reliability requirement is fulfilled when the hearsay exception either `"falls within a firmly rooted hearsay exception"' or occurs under circumstances with `"particularized guarantees of trustworthiness."' Because the residual exception [FRE 803(24) ] `is not a firmly rooted hearsay exception for Confrontation Clause purposes,' these ... statements must be analyzed for particularized guarantees of trustworthiness. In order to determine whether a statement meets this standard, the trial court must examine the totality of the circumstances surrounding the making of the statement and those rendering the declarant particularly worthy of belief. [Citations omitted.]"

In Barrett, the court noted that the trustworthiness factors appropriate for it to consider in that case with respect to the child's statements included (1) the spontaneity of the statement, (2) the consistent repetition of the statement, (3) the child's lack of a motive to fabricate, and, (4) the reason for the child's inability to testify at trial. Id.

In United States v. Shaw, 69 F.3d 1249, 1253 (C.A.4, 1995), the Fourth Circuit Court of Appeals explained that the trustworthiness requirement contained in FRE...