People v. Plummer
| Decision Date | 10 April 1998 |
| Docket Number | Docket No. 199770 |
| Citation | 581 N.W.2d 753,229 Mich.App. 293 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Gerard PLUMMER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelly, Attorney General, Thomas L. Casey, Solicitor General, Angela M. Pasula, Prosecuting Attorney, and Elizabeth A. Wild, Assistant Prosecuting Attorney, for People.
State Appellate Defender by P.E. Bennett, for Defendant-Appellant on appeal.
Before MICHAEL J. KELLY, P.J., and MARK J. CAVANAGH and N.J. LAMBROS *, JJ.
Defendant appeals as of right from his convictions of first-degree, premeditated murder, M.C.L. § 750.316; M.S.A. § 28.548, assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to life without parole for the murder conviction and thirty to ninety years' imprisonment for the assault conviction, both to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. We vacate the conviction of first-degree murder and remand for entry of a conviction of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549. We affirm defendant's other convictions.
During the early morning hours of September 18, 1995, defendant and his brother, Mark Plummer, were at the New Image Lounge in Niles. Defendant was wearing a black leather jacket. The decedent, Damon Hatcher, was also at the New Image Lounge along with several of his relatives, including Kevin Day.
Around 1:30 a.m., Day and Plummer began arguing in the pool room. Defendant and the decedent were also in the pool room at that time. A witness, Israel Bennett, testified that Day and Plummer exchanged words and that Day struck Plummer in the jaw with his fist, causing Plummer to fall to the floor. Plummer stood up, attempted to retaliate, and was again struck by Day. When Plummer went down, defendant tried to step in to help but Bennett stopped him, indicating that the fight was between Day and Plummer. Bennett then observed defendant hesitate for a moment, pull out his pistol and hold it at his side, give Bennett a threatening look, and subsequently turn to focus on his brother, who was lying on the floor with Day standing over him. Just then, the decedent ran from the other side of the bar toward Day, yelling, "Man break that up." The decedent approached with his hand extended to push Day back, but tripped and fell against the wall. As the decedent attempted to stand, defendant "panicked," raised his pistol and shot at the decedent's back, striking him in the left shoulder. Defendant then pulled Plummer from the floor and ran out the door with his pistol still in hand.
Marcus Hatcher, the decedent's cousin, testified that he observed the decedent run toward Day and Plummer and saw him trip and fall. Hatcher stated that after this occurred, defendant moved his hand so that the gun was aimed in a downward direction and fired, striking the decedent. Defendant fired a second shot, then grabbed Plummer and ran, "looking real paranoid like." As he left the bar, defendant fired a third shot "[l]ike he was shooting at somebody."
Christine Jolliff testified that she was in the New Image Lounge at the time of the incident. Jolliff observed defendant holding a gun and subsequently heard gunfire. As she tried to flee, Jolliff looked down, saw blood coming from her leg, and realized that she had been shot.
Day testified that Plummer was drunk at the time of their altercation. Plummer confronted him, apparently about a woman, and the two "commenced to arguing." Day explained that he hit Plummer only after Plummer began to raise his hand against Day. After Day struck Plummer, Day heard someone say, "He has a gun." Day turned, saw the gun in defendant's hand, and ran. Day heard two shots and was near Jolliff when he saw that she had been struck in the leg.
Clint Woods testified that he saw two black men arguing with Day at the New Image Lounge. He then witnessed one of them, who was wearing a black leather jacket, use a black gun to shoot the decedent and a female patron.
Kevin Scaife stated that he witnessed a man in a black leather jacket chase Day out of the pool room as he shot at him. Scaife believed that the man was aiming at Day when he shot a woman in the leg.
Michigan State Police Trooper John Moore testified that he was called to the New Image Lounge at approximately 1:30 a.m. or 2:00 a.m. for crowd control purposes. Shortly after his arrival, he observed a sudden surge of people running from the bar, some yelling that there had been a shooting inside. Moore stated that one of the female patrons fleeing from the building identified a man in a black leather jacket as the shooter. Moore then ordered the man, whom he identified as defendant, to the ground. Defendant briefly lowered himself but then rose again and took several additional steps. However, defendant complied when Moore again ordered him to stop, and Moore and Officer Jimmy Kidwell of the Niles Police Department then took defendant into custody.
Kidwell testified that, when he and Moore were attempting to apprehend defendant and his brother, he observed defendant stoop and throw something underneath a parked car. After defendant was taken into custody, Kidwell went back to the location where he had seen defendant bend down and retrieved a .25 caliber gun from underneath the car. Defendant told Kidwell that the gun did not belong to him.
Officer Fulton Moore of the Niles Police Department reported that, when he booked defendant, he discovered a gun holster hooked over defendant's belt and situated between his pants and his shorts. Defendant told Officer Moore that outside the bar, he had tripped and the gun had fallen out of the holster. Detective James Merriman, also of the Niles Police Department, reported that a preliminary breath test indicated that defendant's blood alcohol level was 0.10 percent.
Pathologist John Landgraf testified that he had performed an autopsy on the decedent. The decedent had sustained a gunshot wound to his upper back. The bullet pierced the decedent's aorta, and he bled to death.
Stuart Burritt, a firearms expert, testified that in his opinion the gun was less than fifteen inches from the decedent's body when the fatal shot was fired. Burritt also reported that he examined two .25 caliber shell casings retrieved from the scene, along with the bullet found on the floor of the bar and the one retrieved from the decedent's body. Burritt could not say with certainty whether the shell casings had been fired from the .25 caliber pistol found by Kidwell. However, Burritt believed that the two bullets had been discharged from the same weapon and that they could have been fired by the .25 caliber pistol. In addition, Burritt noted that there were "gross similarities" between the markings observed on the spent shell casings found at the scene and those observed on the casings subsequently fired from the pistol.
On April 16, 1996, a jury found defendant guilty of first-degree, premeditated murder, assault with intent to commit murder, and felony-firearm. Defendant appeals as of right.
Defendant first argues on appeal that there was insufficient evidence to support his convictions of first-degree, premeditated murder and assault with intent to commit murder. When ascertaining whether sufficient evidence was presented at trial to support a conviction, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 515, 489 N.W.2d 748 (1992). Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove the elements of a crime. People v. McKenzie 206 Mich.App. 425, 428, 522 N.W.2d 661 (1994).
Defendant contends that there was insufficient evidence of premeditation to support his conviction of first-degree murder. Premeditation is an essential element of first-degree, premeditated murder. People v. DeLisle, 202 Mich.App. 658, 660, 509 N.W.2d 885 (1993). Although there is no specific time requirement, sufficient time must have elapsed to allow the defendant to take a "second look." Id.; People v. Anderson, 209 Mich.App. 527, 537, 531 N.W.2d 780 (1995). This Court has explained:
[I]t underscores the difference between the statutory degrees of murder to emphasize that premeditation and deliberation must be given independent meaning in a prosecution for first-degree murder. The ordinary meaning of the terms will suffice. To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a "second look."
This interpretation of premeditation and deliberation in no way departs from existing Michigan law. Time and again the Michigan Supreme Court has reversed convictions where the evidence of premeditation and deliberation was insufficient to warrant submission of a charge of first-degree murder to the jury. In each case, the homicide occurred during an affray whose nature would not permit cool and orderly reflection. [People v. Morrin, 31 Mich.App. 301, 329-331, 187 N.W.2d 434 (1971).]
Though not exclusive, factors that may be considered to establish premeditation include the following: (1) the previous...
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