People v. Martin

Decision Date13 June 2006
Docket NumberDocket No. 261088.,Docket No. 256464.,Docket No. 261025.,Docket No. 256461.,Docket No. 256463.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bobby Dean MARTIN, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Roger D. Thompson, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Roger W. Brown, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Billy Ray Martin, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. James B. Frasure, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Eric B. Restuccia and William E. Molner, Assistant Attorneys General, for the people.

Timothy P. Murphy, St. Clair Shores, for Bobby Dean Martin, Roger D. Thompson, and Roger W. Brown.

Patrick J. McQueeney, St. Clair Shores, for Billy Ray Martin.

Michael L. Donaldson, Livonia, for James B. Frasure.

Before: SMOLENSKI, P.J., and OWENS and DONOFRIO, JJ.

SMOLENSKI, P.J.

In these consolidated appeals, defendants appeal as of right their convictions and sentences arising out of their participation in the operation of an adult entertainment establishment by the name of Legg's Lounge.1 After a joint jury trial, defendants Bobby Dean Martin (Bobby Martin), Roger D. Thompson (Thompson) and Roger W. Brown (Brown) were convicted of keeping, maintaining, or operating a house of ill-fame, bawdy house, or any house or place resorted to for the purpose of prostitution or lewdness (keeping a house of prostitution) in violation of MCL 750.452. The trial court sentenced Bobby Martin, Thompson, and Brown each to two years' probation.

In a separate jury trial, defendants Billy Ray Martin (Billy Martin) and James B. Frasure (Frasure) were convicted of knowingly conducting or participating in the affairs of an enterprise directly or indirectly through a pattern of racketeering activity (racketeering) in violation of MCL 750.159i(1). The trial court sentenced defendant Billy Martin to three years' probation and ordered him to perform 200 hours of community service. The trial court also sentenced defendant Frasure to three years' probation, but ordered him to perform 300 hours of community service.

We affirm the convictions of Billy Martin and Frasure. However, because we conclude that the trial court erroneously instructed the jury that it could convict defendants Bobby Martin, Thompson, and Brown of keeping a house of prostitution as a necessarily included lesser offense of racketeering, we reverse and vacate their convictions for that offense.

I. Lesser Included Offense of Racketeering

In Docket Nos. 256461, 256463, and 256464, defendants Bobby Martin, Brown, and Thompson argue that the trial court committed error warranting reversal when it instructed the jury that it could convict them of keeping a house of prostitution as a necessarily included lesser offense of racketeering. We agree.

Whether keeping a house of prostitution is a necessarily included lesser offense of racketeering is question of law, which this Court reviews de novo. People v. Nickens, 470 Mich. 622, 625-626, 685 N.W.2d 657 (2004). This Court also reviews de novo the proper interpretation of a statute. Macomb Co. Prosecutor v. Murphy, 464 Mich. 149, 157, 627 N.W.2d 247 (2001).

Although the prosecution alleged that defendants kept a house of prostitution in violation of MCL 750.452 as one of the predicate offenses necessary to prove that defendants violated Michigan's racketeering statute, see MCL 750.159f(c) and MCL 750.159g(ee), defendants were not separately charged with that offense. In April 2004, the prosecution moved the trial court to permit amendment of the information to include one count of keeping a house of prostitution and one count of knowingly accepting, receiving, levying, or appropriating any money or valuable thing without consideration from the proceeds of the earnings of any woman engaged in prostitution in violation of MCL 750.457 (accepting the earnings of a prostitute). However, the trial court declined to hear the motion because it was made after the deadline set for such motions. Nevertheless, at the close of proofs, but before closing arguments, the prosecution asked the court to instruct the jury that it could convict defendants of these offenses as necessarily included lesser offenses of racketeering. The trial court agreed that the offenses were necessarily included lesser offenses of racketeering and, over objection, gave the requested instructions. After deliberations, the jury returned a verdict of not guilty for each defendant on the racketeering charge. In addition, the jury found each defendant not guilty of accepting the earnings of a prostitute, but guilty of keeping a house of prostitution.

"It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him." Schmuck v. United States, 489 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). This rule is based in part on the defendant's right to have notice of the charges against him or her. Id. at 718, 109 S.Ct. 1443. However, a defendant is on notice when charged that he or she may be found guilty of a necessarily included lesser offense of the offense charged. People v. Cornell, 466 Mich. 335, 359, 646 N.W.2d 127 (2002); Schmuck, supra at 718, 109 S.Ct. 1443. Hence, it is not error to instruct the jury on such necessarily included lesser offenses. Cornell, supra at 357, 646 N.W.2d 127; MCL 768.32(1).

In Cornell, supra, our Supreme Court addressed the propriety of instructing a jury on offenses with which the defendant was not charged. In examining the issue, the Court determined that MCL 768.32(1) governed the result. Cornell, supra at 341, 646 N.W.2d 127. MCL 768.32(1) provides:

Except as provided in subsection (2),[2] upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.

In analyzing the statutory language and the relevant precedents, the Court noted that the statute's application was not limited only to those offenses that were expressly divided into "degrees," but rather that it "was intended to extend to all cases in which different grades of offenses or degrees of enormity had been recognized." Cornell, supra at 353-354, 646 N.W.2d 127. Further, the Court determined that the statutory reference to "inferior" degrees foreclosed consideration of cognate offenses, "which are only `related' or of the same `class or category' as the greater offense and may contain some elements not found in the greater offense." Id. at 355, 646 N.W.2d 127. Instead, only necessarily included offenses may be considered. Id. at 356 n. 9, 646 N.W.2d 127. An offense is a necessarily included lesser offense when: (1) it is impossible to commit the greater offense without first committing the lesser offense and (2) conviction of the greater offense requires the jury to find a disputed factual element that is not part of the lesser offense. Id. at 361, 646 N.W.2d 127. Finally, the Court held that an "instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." Id. at 357, 646 N.W.2d 127.

In order to prove a racketeering violation, the prosecution must prove beyond a reasonable doubt that the defendant was employed by, or associated with, an enterprise and knowingly conducted or participated in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity. MCL 750.159i(1). Pursuant to MCL 750.159f(c), a pattern of racketeering activity means the commission of not less than two incidents of racketeering, to which all of the following characteristics apply:

(i) The incidents have the same or a substantially similar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts.

(ii) The incidents amount to or pose a threat of continued criminal activity.

(iii) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity.

"Racketeering" is further defined as "committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit" certain enumerated offenses for financial gain. MCL 750.159g. Hence, the prosecution must normally prove the commission of each element of the predicate acts of racketeering, in addition to the other elements of racketeering, in order to prove a racketeering violation.

In the present case, the prosecution charged each defendant with a single count of racketeering. The original information listed four predicate offenses as establishing the requisite pattern of racketeering activity. However, by the time of the trial, only two predicate offenses remained.3...

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