People v. Libbett

• Decision Date: 23 August 2002
• Docket Number: Docket No. 227619.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Julius LIBBETT, a/k/a Jon Jan Libbett, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

650 N.W.2d 407

251 Mich. App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Julius LIBBETT, a/k/a Jon Jan Libbett, Defendant-Appellant.

Docket No. 227619.

Court of Appeals of Michigan.

Submitted April 9, 2002, at Grand Rapids.

Decided May 14, 2002, at 9:10 a.m.

Released for Publication August 23, 2002.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the people.

William A. Van Eck, Belding, for the defendant.

Before: OWENS, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of carjacking, M.C.L. § 750.529a, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. He was sentenced as a third-offense habitual offender, M.C.L. § 769.11, to ten to twenty-five years' imprisonment for the carjacking conviction and to a two-year consecutive prison term for the felony-firearm conviction. Defendant appeals as of right. We affirm.

I. Basic Facts and Procedural History

The facts adduced at trial revealed the following. On September 19, 2000, at approximately midnight, Ezequiel Deleon-Rodas (hereinafter Rodas) drove his uncle's blue Ford Tempo to a local party store. Rodas testified that while returning to the car, two black men, one taller than the other, stopped him. According to Rodas, the shorter man hit him, while the taller man put a gun to his head. The taller man ordered Rodas to unlock the car, which Rodas did, and the two men proceeded to get into the car and leave. Once the men left with the car, Rodas returned to the party store and asked the store attendant to call the police. The police arrived approximately ten to fifteen minutes later. The officer who arrived on the scene spoke to Rodas with the assistance of a Spanish-speaking police officer. Rodas informed the officer that a tall black male and a short black male had assaulted him at gunpoint and had taken the blue Tempo. After taking the statement from Rodas, the officer on the scene sent this general description of the suspects and the specifics concerning the car over the police radio.

According to Jerome Libbett, defendant's cousin and accomplice in this case, after he and defendant left with the car, they drove around, made a couple of stops, and then picked up two other individuals, Eric Libbett and Kenneth Libbett, who were also defendant's cousins. According to Kenneth, defendant and Jerome picked them up between midnight and in a blue Tempo.

At approximately 1:20 a.m., Grand Rapids police officer Joseph Sirad noticed a car fitting the description traveling down the road. Sirad followed the car, which proceeded to jump a median and end up in a McDonald's parking lot. According to Sirad, before the car came to a complete stop, defendant and Eric got out and ran. Sirad ordered the other two passengers, Jerome and Kenneth, to get out of the car and lie down on the ground.

A manhunt then ensued in order to locate defendant and Eric. With the assistance of a canine unit, defendant and Eric were located approximately twenty minutes later. Once all the suspects were apprehended, the police picked up Rodas to see if he could identify any of the four individuals as the persons who assaulted him and stole his Tempo. At the first scene, Rodas identified defendant as the taller man who had put the gun to his head, while at the second scene Rodas identified Jerome as the shorter man who assaulted him.

After a jury trial, defendant was convicted of carjacking and felony-firearm.

II. Analysis

A. The Motion To Quash

Defendant first argues that the trial court erred in denying his motion to quash the felony-firearm charge. "A circuit court's decision to grant or deny a motion to quash charges is reviewed de novo to determine if the district court abused its discretion in binding over a defendant for trial." People v. Jenkins, 244 Mich.App. 1, 14, 624 N.W.2d 457 (2000). Generally, "[t]he standard for reviewing a decision for an abuse of discretion is narrow; the result must have been so violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or an exercise of passion or bias." People v. Torres (On Remand), 222 Mich.App. 411, 415, 564 N.W.2d 149 (1997). However, a magistrate's erroneous conclusion that sufficient evidence was presented at the preliminary examination is rendered harmless by the presentation at trial of sufficient evidence to convict. People v. Meadows, 175 Mich.App. 355, 359, 437 N.W.2d 405 (1989).

MCL 750.227b punishes a person for possessing a firearm during the commission of or the attempt to commit a felony. Although defendant, in his statement to the police, denied having a gun and participating in the carjacking, several of the witnesses, including Rodas and Jerome, testified that defendant took Rodas' car at gunpoint. This testimony at trial was sufficient evidence to convict defendant of felony-firearm. See, e.g., People v. Davis, 216 Mich.App. 47, 53-54, 549 N.W.2d 1 (1996). Accordingly, even if the magistrate erroneously concluded that there was sufficient evidence produced at the preliminary examination, that error was harmless.

B. On-The-Scene Identification

Defendant next argues that the trial court erred in denying his motion for a new trial because the police conducted an improper on-the-scene identification. A trial court's decision whether to grant a new trial is reviewed for an abuse of discretion. People v. Jones, 236 Mich.App. 396, 404, 600 N.W.2d 652 (1999). As noted, an abuse of discretion exists only if the result was so violative of fact and logic that it indicates either a perversity of will, a defiance of judgment, or an exercise of passion or bias. Torres, supra at 415, 564 N.W.2d 149.

Defendant challenges the on-the-scene identification, arguing that it was not prompt and that it was inherently suggestive. Defendant further argues that the on-the-scene identification procedure used was improper because the police already possessed sufficient information to supply probable cause to arrest defendant and there were no exigent circumstances.¹

We initially point out that this argument does not implicate any right to counsel under the Sixth Amendment of the United Stated Constitution.² Rather, defendant's argument implicates the right to counsel as declared by our Supreme Court in People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973). People v. Winters, 225 Mich.App. 718, 721-722, 571 N.W.2d 764 (1997). In Winters, this Court held that prompt, on-the-scene identifications are reasonable, "indeed indispensable, police practices because they permit the police to immediately decide whether there is a reasonable likelihood that the suspect is connected with the crime, and subject to arrest, or merely an unfortunate victim of circumstance." Id. at 728, 571 N.W.2d 764. How the Winters Court came to this holding is critical to an understanding of this area of law and to a resolution of the issue in this case.

In Winters, this Court noted that in Anderson, supra, the Supreme Court, in dicta, recognized that the absence of counsel at an eyewitness identification procedure may be justified where there is a prompt, on-the-scene corporeal identification within minutes of the crime. Id. at 726, 571 N.W.2d 764. The Winters Court noted that on the basis of Anderson, this Court had previously adopted three varying approaches in analyzing whether a defendant is entitled to counsel during a prompt, on-the-scene identification. Id. The Winters Court noted that one panel of this Court had adopted the approach that "when the police have `more than a mere suspicion' that the suspect is wanted for the crime, the officer cannot return the suspect to the scene of the crime but must take him to the police station and have a lineup at which counsel is present." Id., quoting People v. Dixon, 85 Mich.App. 271, 280-281, 271 N.W.2d 196 (1978).

The Winters Court then noted that a second panel of the Court had adopted the approach that "police officers may conduct an on-the-scene identification without the presence of counsel any time promptly after the crime, except where the police have `very strong evidence' that the person stopped is the culprit." Winters, supra at 726-727, 571 N.W.2d 764, quoting People v. Turner, 120 Mich.App. 23, 37, 328 N.W.2d 5 (1982). The Court in Winters, supra at 727, 571 N.W.2d 764, quoted the holding in Turner, supra at 37, 328 N.W.2d 5 that "[s]trong evidence exists where the suspect has himself decreased any exculpatory motive, i.e., where he has confessed or presented the police with either highly distinctive evidence of the crime or a highly distinctive personal appearance.' " The Winters Court finally noted that a third panel of the Court had noted that the second approach, the one taken in Turner, may not always be an easy one to apply and had interpreted "very strong evidence" to mean "`evidence such that the police, acting in good faith, have no reasonable necessity for confirming that the suspect they have apprehended is in fact the perpetrator.'" Winters, supra at 727, 571 N.W.2d 764, quoting People v. Wilki, 132 Mich.App. 140, 144, 347 N.W.2d 735 (1984).

The Winters Court stated that the first two approaches "fail[ed] to provide a simple, practical standard consistent with Anderson for use by police officers in the field." Winters, supra at 727, 571 N.W.2d 764. Therefore, as previously noted, the Winters Court held "that it is proper and does not offend the Anderson requirements for the police to promptly conduct an on-the-scene identification" because "[s]uch on-the-scene confrontations are reasonable, indeed indispensable, police practices because they permit the police to immediately decide whether there is a reasonable likelihood that the suspect is connected with the crime and subject to arrest,...