People v. Mixon, Docket Nos. 95579

• Decision Date: 27 September 1988
• Docket Number: 95720,Docket Nos. 95579
• Citation: 170 Mich.App. 508,429 N.W.2d 197
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carlton MIXON, Defendant-Appellant. PEOPLE of State of Michigan, Plaintiff-Appellee, v. Annie Lee WILLIAMS, Defendant-Appellant. 170 Mich.App. 508, 429 N.W.2d 197
• Court: Court of Appeal of Michigan — District of US

Page 197

429 N.W.2d 197

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carlton MIXON, Defendant-Appellant.

PEOPLE of State of Michigan, Plaintiff-Appellee, v. Annie Lee WILLIAMS, Defendant-Appellant.

Docket Nos. 95579, 95720.

170 Mich.App. 508, 429 N.W.2d 197

Court of Appeals of Michigan.

Submitted April 21, 1988.

Decided Aug. 2, 1988.

Released for Publication Sept. 27, 1988.

[170 MICHAPP 510] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div. Research, Training and Appeals, and Larry L. Roberts and Susan Randolph, Asst. Pros. Attys., for the People.

Ilsa Draznin, Southfield, for Carlton Mixon on appeal.

[170 MICHAPP 511] Ada Snyder Kerwin, Detroit, for Annie Lee Williams on appeal.

Before CYNAR, P.J., and GRIBBS and GILLESPIE, ^* JJ.

GILLESPIE, Judge.

Defendant Carlton Mixon appeals as of right his convictions for unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, and extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410. Codefendant Annie Lee Williams appeals as of right her convictions for kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, and extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410. Defendants were tried by a jury before Detroit Recorder's Court Judge Michael J. Talbot. Defendant Mixon was sentenced to concurrent terms of ten to fifteen years for unarmed robbery, one hundred to two hundred years for kidnapping and thirteen to twenty years for extortion, and he received credit for 133 days already served. Defendant Williams was sentenced to concurrent terms of forty to eighty years for kidnapping and thirteen to twenty years for extortion, and she received credit for 132 days already served.

Remoyne Thornton, age thirteen, went to a store near his home at 9:00 p.m. on March 14, 1986. It was dark, but Remoyne saw someone he later identified as defendant Mixon standing by a telephone booth approximately fifteen to twenty feet from the store as he went in. He noticed nothing unusual about Mixon's appearance. Remoyne talked with a Mr. Bailey, who was later arrested with defendant, for a few minutes before entering the store and testified that he had the opportunity to observe Mixon during that time.

As Remoyne left the store, someone came up [170 MICHAPP 512] from behind him and put his arm around Remoyne's face and eyes. Remoyne was unable to see who did that to him because his eyes were covered, but knew that his assailant was a man wearing white tennis shoes. His eyes were later taped. He identified his assailant as defendant Mixon by his voice.

Mixon then put something to Remoyne's head which Remoyne believed was a gun, and Mixon took a silver and gold chain and a leather jacket from him.

Remoyne's hands were tied and he was led to a car. There was another male in the driver's seat and a woman in the back. Mixon got into the front seat with Remoyne. The car drove off and Mixon asked Remoyne for his phone number, which he provided. Mixon stopped at a telephone booth and shortly returned to the car saying that Remoyne's mother could not get the money for his release immediately.

The woman in the back seat told Remoyne to sit back, and held something to his neck which Remoyne believed to be a knife. The car then made a second stop and Remoyne was led into a house. Remoyne believed this house to be that of the woman in the car because he heard her tell children to go to bed. Remoyne was unable to hear the whole conversation, only hearing, "What is taking y'all so long?"

Remoyne was told to say "Mom" into a telephone, after which a coat was put over his head. Later, he was returned to the car and the same three people took him to another house, his eyes still taped and hands tied. He was led into a room and tied to a bed with a scarf over his head. He was rescued by the police the next morning.

Other evidence linking Mixon to the crime was a ransom box containing money and jewelry, [170 MICHAPP 513] which was placed in a garbage bag by Mildred Thornton, Remoyne's mother, at the instruction of the police after she finally decided to call them. Mrs. Thornton had been told that her son would be killed if she called the police or failed to comply with the kidnappers' instructions.

The police placed the bag prepared by Mrs. Thornton in a dumpster near a fire station in accordance with the kidnapper's instruction and maintained surveillance. The police saw a man whom they identified as Mixon pick up the bag, and followed him to a nearby house. Upon gaining access to the upstairs flat at this house, they found Bailey, Debra Scott, and defendants Mixon and Williams in the apartment. The police recovered the bag and ransom box. Mrs. Thornton identified the jewelry and two bills, which bore the serial numbers she had recorded, among the ransom objects recovered. The police also found a pair of white tennis shoes in Mixon's room. The next morning Scott led the police to the address where Remoyne was being held.

Derrick Thornton, Remoyne's cousin, went to a telephone booth at Livernois and Fullerton where he heard "something was going to happen." He saw defendant Williams enter the booth. After she left, Derrick retrieved a piece of paper on which was written the Thorntons' telephone number and some directions to relay to the Thorntons.

Mixon and Williams subsequently made handwritten statements to the police admitting having seized Remoyne Thornton and moving him to the places to which he testified. These statements were read at trial.

Defendant Mixon contends that his convictions should be reversed because of bias of the trial judge. Certain portions of the trial record are quoted in his brief to support his claim of bias. We [170 MICHAPP 514] have reviewed these colloquies, and it is apparent that the judge dealt sharply with defense attorney's arguments when the defense attorney continued to argue after the judge had ruled. However, the judge's statements do not reflect a bias against the defendant, but rather the judge's distaste for counsel's contentiousness and for the circumstances of the case.

Further, Mixon's claim of bias cannot prevail. First, because he failed to move for disqualification of the trial judge pursuant to MCR 2.003(C)(1), the issue is not preserved for appellate consideration. Kroll v. Crest Plastics, Inc, 142 Mich.App. 284, 291, 369 N.W.2d 487 (1985), lv. den. 423 Mich. 859 (1985); People v. Ensign (On Rehearing), 112 Mich.App. 286, 315 N.W.2d 570 (1982). Second, even if the issue had been preserved, Mixon's principal claim of bias arises from comments made by the trial judge during hearings not held in the presence of the jury. Therefore, the comments could not operate to deny defendant a fair trial. People v. Pointer, 133 Mich.App. 313, 317, 349 N.W.2d 174 (1984). Third, as stated by Judge Beasley in People v. Burgess, 153 Mich.App. 715, 719, 396 N.W.2d 814 (1986):

"The appropriate test to determine whether the trial court's comments or conduct pierced the veil of judicial impartiality is whether the trial court's conduct or comments 'were of such a nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and impartial trial.' "

The record in this case discloses that the jury was not influenced by any comment or conduct of the trial court, but rather by the overwhelming evidence of Mixon's guilt.

Defendant also claims prejudice in the trial court's limitation of cross-examination. MRE 611 [170 MICHAPP 515] grants a trial court broad power to control the manner in which a trial is conducted, including the examination of witnesses. As noted by our Supreme Court in People v. Taylor, 386 Mich. 204, 208, 191 N.W.2d 310 (1971):

"This Court has stated on numerous occasions that a trial judge has a great deal of discretion in limiting cross-examination. Such discretion is not subject to review unless a clear abuse of it is shown."

The record shows that the trial judge properly exercised his discretion and control of the case to restrict cross-examination to relevant matters.

Mixon's second claim is that the trial court abused its discretion in sentencing him to a 100-year minimum term because he will never be eligible for parole, the sentence should shock the conscience under the standard set by People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983), and that the sentence is disproportionate, excessively disparate and nullifies the "lifer law," M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4).

This Court's decisions on the subject are split. People v. Cooper, 168 Mich.App. 62, 423 N.W.2d 597 (1988), People v. Harden, 166 Mich.App. 106, 420 N.W.2d 136 (1988), and People v. Crawford, 144 Mich.App. 86, 372 N.W.2d 688 (1985), are some of the later cases upholding such sentences.

In People v. Oscar Moore, 164 Mich.App. 378, 417 N.W.2d 508 (1987), the majority construes a sentence for "life or any term of years" to mean any term of years less than life.

Judge Tahvonen dissented from the majority in Oscar Moore in a scholarly opinion which sets forth the view that the phrase "life or any term of years" is sufficiently clear as to need no construction.

[170 MICHAPP 516] Long indeterminate sentences applied in conjunction with those crimes which are included in Proposal B, M.C.L. Sec. 791.233b; M.S.A. Sec. 28.2303(3), do tend to abrogate the "lifer law," which allows the parole board to consider parole in ten years on nonmandatory life sentences. People v Hutchinson, 155 Mich.App. 84, 399 N.W.2d 448 (1986), lv. den. 428 Mich. 866 (1987).

The people of Michigan, when they voted to pass Proposal B in 1978, expressed the public policy of this state that punishment for certain crimes should be certain to the extent of the minimum sentence. Likewise, there are some crimes which are so violent, inhuman and brutal that their perpetrators should not again be given opportunity to...