People v. Muhammad
| Decision Date | 27 September 1988 |
| Docket Number | 93728,Docket Nos. 91940 |
| Citation | 170 Mich.App. 747,428 N.W.2d 762 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Umar MUHAMMAD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry N. FOWLER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert H. Cleland, Pros. Atty., and Peter B. George, Chief Appellate Atty., for the People.
Chokwe Lumumba, Detroit, for defendant-appellant Muhammad on appeal.
State Appellate Defender by Peter Jon Van Hoek, Detroit, for defendant-appellant Fowler on appeal.
Before HOOD, P.J., and CYNAR and BURNS, * JJ.
Following a trial before a single jury, defendant Fowler was found guilty as charged of bank robbery, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799 (Count I), guilty of the lesser included offense of assault with a dangerous weapon, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277 (Count II), guilty as charged of possession of a firearm during the commission of a bank robbery, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) (Count IV), and not guilty as charged of possession of a firearm during the commission of an assault, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.242(2) (Count V). Defendant Muhammad was found guilty as charged of bank robbery, M.C.L. Sec. 750.531; M.S.A. Sec. 28.799 (Count I), guilty as charged of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278 (Count II), guilty as charged of possession of a firearm during the commission of a bank robbery, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) (Count IV), and guilty as charged of possession of a firearm during the commission of an assault, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2) (Count V). Defendants had also been charged with breaking and entering of an occupied dwelling with intent to commit larceny, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305 (Count III). The trial judge dismissed these charges.
Later defendant Fowler was convicted by a jury of being a second felony offender. Defendant Fowler was sentenced on Count I to life with no credit for time served to run consecutively to the sentence for the felony-firearm conviction and four to six years with credit for time served on Count II to run concurrently.
Defendant Muhammad was convicted by a jury of being a fourth felony offender. Defendant Muhammad was sentenced on Count I to life with no credit for time served, to run consecutively to the sentence for the felony-firearm convictions. Muhammad was sentenced for assault with intent to murder and being an habitual offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084, to life with no credit for time served, to run consecutively to the sentences for the felony-firearm convictions, which ran concurrently.
On January 7, 1985, at approximately 11:20 a.m., a bank robbery occurred in Fort Gratiot Township, St. Clair County, Michigan, at the Port Huron branch of the Michigan National Bank, located on 24th Avenue. Two persons rushed into the bank. One leaped onto the counter at the teller's window and the other jumped over the counter. Both wore ski masks pulled down over their faces, gloves and dark green zippered sweatshirts. Both carried guns. The man on the counter was approximately 5'8" to 5'9". Both men were black. Black skin was visible underneath the ski masks. The tellers were ordered to put money in bags which the robbers were carrying. The person on the counter had a cloth pillowcase and the person in the teller's area behind the counter had a white plastic bag. Money was placed into the bags along with a die pack designed to go off when the persons left the bank and a packet of "bait money" with serial numbers known.
Upon leaving the bank, the robbers were observed by a witness in the parking area. She noticed two masked men carrying white bags and guns run out of the bank and get into a white or ivory colored vehicle, a Trans Am or Camaro. As they got in the car a "red bomb went off in the bag" and one man dropped it there. They drove off in a southerly direction through the K-mart parking lot.
A deputy sheriff arrived at the scene within minutes and received a description of the robbers and the getaway car. He was given a partial license plate number, 773. He radioed this information to the dispatcher. From the parking lot, he retrieved a bag of money covered with red dye.
Deputy Sheriff Raymond Gleason heard the report of the robbery and proceeded to the turnaround at I-94 and Griswold Road to observe westbound traffic. This was at approximately 11:25 a.m. to 11:27 a.m. Gleason was watching for suspects heading for the Detroit/Mount Clemens area. At 11:33 a.m., he noticed a red and black Ford Bronco with one black male driving. He immediately pulled out and followed it. He called in the license plate number and advised that he would be stopping the vehicle.
Following the stop, the driver of the Bronco got out and, aiming a gun directly at the deputy, began firing. Gleason heard one shot and then a second shot. He saw the windshield break and he was hit in the head. He was stunned momentarily and went face down on the seat. After a couple of seconds, Gleason was able to move. He radioed that he had been shot. He heard the Bronco pull away. He wiped the blood from his face and decided he was able to function. He decided to follow and catch up with the Bronco.
Gleason pursued the Bronco down westbound I-94. A roadblock had been set up at the Smith Creek exit. Just before reaching the roadblock, Gleason observed the Bronco go across the median and the eastbound lane, through a ditch and then through the Intermediate School District Skill Center on Range Road.
Gleason followed, along with a Marysville police car from the roadblock. The Marysville unit was ahead of Gleason. The chase ended at a residence located at 815 Range Road.
Assistant Chief Timothy O'Boyle got out on the passenger side of the Marysville police car and ran around to the field behind the residence. O'Boyle pursued the robbers in the field. Gleason followed. When Gleason approached, the suspects were lying face down in the field. Gleason handcuffed the suspects while O'Boyle covered. The suspects were arrested. O'Boyle retrieved from the field the pillowcase thrown down by defendant Fowler. A large sum of money, a Ruger short-barreled revolver and a black holster were found inside. When defendant Muhammad was raised to his feet, a Smith & Wesson revolver was found on the ground where Muhammad had been lying.
On May 13 and 23, 1985, motions were heard by the trial judge as to defendant Muhammad's motion in limine to exclude his codefendant's statements. The prosecutor alleged that he did not intend to use the statements. However, the statements might be used against defendant Fowler in cross-examination or re-examination. The trial judge held that he would not allow the statements to be used without a hearing.
Defendants also contended that the stop of the Bronco was an illegal stop and an illegal search because Officer Gleason only stopped the Bronco because it contained a black driver. Therefore, all of the evidence obtained was the fruit of an illegal stop, arrest, detention and seizure. The trial judge held:
Defendant Fowler moved to sever the individual counts. Defendant Muhammad moved to sever the trial. The trial judge held that the counts arose out of substantially the same transaction and denied the motions.
It was determined that the motion to suppress the evidence because of an illegal stop would require an evidentiary hearing.
At the evidentiary hearing relating to the traffic stop made by Deputy Gleason, Deputy Sheriff Terry G. Baker testified that he received a radio call about the bank robbery at 11:22 a.m. January 7, 1985. At the bank, he was given a description of the robbers and the getaway vehicle. He radioed the description within two minutes.
Deputy William Herpel testified that approximately eleven minutes after he received the radioed description of the vehicle he discovered the getaway car abandoned less than a mile from the bank. It was still running. Just as Herpel attempted to broadcast this information, Deputy Gleason was broadcasting that he had been shot. For the safety of the officers, Herpel ceased trying to broadcast until the chase and capture of the suspect was completed.
Herpel stated that a common method of operation for bank robbers is to immediately get rid of the getaway vehicle and switch to a "cold vehicle." That is why he searched for the getaway vehicle within a mile of the robbery.
Deputy Sheriff Thomas Carr testified that the standard operating procedure in attempting to stop a vehicle is to radio in a description of the vehicle, the license plate number and the location. Carr heard Gleason broadcast that he was going to attempt to stop the Bronco. At the same time, Gleason radioed the license plate number and Carr ran it through the computer. Just as the computer responded that the Bronco was stolen, Gleason radioed that he had been shot.
Raymond Foltz, special agent with the...
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