People v. Pouncy, No. 269298 (Mich. App. 3/25/2008)
| Decision Date | 25 March 2008 |
| Docket Number | No. 270604.,No. 269298.,269298.,270604. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. OMAR RASHAD POUNCY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. OMAR RASHAD POUNCY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Genesee Circuit Court, LC Nos. 05-017154-FC, 05-017448-FC.
Before: Smolenski, P.J., Whitbeck, C.J., and Kelly, J.
The Court orders that the motions for reconsideration are GRANTED. This Court's opinion issued December 27, 2007, is VACATED as to case number 269298 only.
A new opinion is attached to this order, revising the discussion of case number 269298, but retaining the discussion as to the consolidated case number 270604.
In these consolidated appeals, defendant Omar Pouncy appeals as of right from two separate trials. In Docket No. 269298, defendant appeals his convictions from the Brady and Sandstrom jury trial (Brady trial). In Docket No. 270604, defendant appeals his convictions from the Haynes bench trial (Haynes trial). Both cases arise out of defendant's involvement in carjackings during which defendant posed as a potential buyer of vehicles advertised for sale. In each incident, after arranging to take the vehicle for a drive, defendant would allegedly pull a gun on the seller and steal the vehicle.
In Docket No. 269298, the Brady trial, defendant appeals his jury conviction of four counts of carjacking, MCL 750.529a, four counts of armed robbery, MCL 750.529, two counts of carrying a firearm during commission of a felony (felony firearm), MCL 750.227b, and one count of being a felon in possession of a firearm (felon in possession), MCL 750.224f. The trial court sentenced defendant as a third offense habitual offender, see MCL 769.11, to concurrent sentences of 2 years each for the felony firearm counts, followed by concurrent sentences of 562 months to 800 months' imprisonment for each of the four counts of carjacking, to 562 months to 800 months' imprisonment for each of the four counts of armed robbery, and two to 10 years' imprisonment for felon in possession. On appeal, defendant presents numerous claims of error. Because we conclude that there were no errors warranting relief, we affirm defendant's convictions and sentences in Docket No. 269298.
In Docket No. 270604, the Haynes trial, defendant appeals his bench conviction of one count each of carjacking, armed robbery, felony firearm, felon in possession, and carrying a concealed weapon, MCL 750.227. The trial court sentenced defendant as a fourth offense habitual offender, see MCL 769.12, to 2 years in prison for felony firearm and to 450 to 900 months' imprisonment for each of the remaining counts. The trial court determined that the first 24 months of the concealed weapon sentence should run concurrent with the felony firearm sentence. After defendant serves the felony firearm sentence, the armed robbery, felon in possession, and the remainder of the concealed weapon charge would run concurrently. Finally, the carjacking sentence would be served last, consecutive to all other counts. In his appeal, defendant again presents numerous claims of error, but we find only one dispositive. We conclude that defendant experienced a total deprivation of counsel during a critical stage of the proceedings because he did not unequivocally waive his right to counsel during the pretrial proceedings. For this reason, we reverse defendant's convictions in Docket No. 270604 and remand for further proceedings consistent with this opinion.
In September 2005, Ralph Haynes had a Monte Carlo on display for sale in the front yard of Samuel Anderson's home. Ralph was selling the car to pay for anticipated funeral expenses associated with his impending death from cancer. Anderson explained that on Saturday, September 24, 2005, a person came to look at Ralph's car. At trial, Anderson identified defendant as the prospective buyer. Anderson testified that defendant had looked at the car on three or four previous occasions. Anderson explained that during defendant's first visit, which was probably on the Sunday or Monday before the 24th, defendant inquired about the price, stated that "[m]oney is no object," and then left. On defendant's second visit, probably on Tuesday, he asked to drive the car, but Anderson refused. Sometime during his Tuesday visit, defendant mentioned to Anderson his desire to take the vehicle to his mechanic. Defendant arranged to come over again on Wednesday, but Anderson did not meet with him. Instead, Ralph and his brother Dan Haynes remained at Anderson's house in order to meet with defendant and defendant's mechanic.
Dan testified that he went to Anderson's house with Ralph on Wednesday, September 21, 2005, in order to meet some people who were interested in purchasing the Monte Carlo. At trial, Dan identified defendant as the prospective buyer. After briefly discussing the car, defendant asked to take it for a test drive, but, because the car did not have a license plate, Dan offered to take defendant for a ride instead. Defendant agreed, but during the ride he told Dan that he really wanted to take the car to his mechanic. Dan refused, but told defendant that he would ask Ralph about it, and then took defendant back to Anderson's house. Ralph refused to let defendant take the car to his mechanic, so Dan offered to let defendant go get his mechanic and bring him back to Anderson's house. Dan stated that defendant then left and came back shortly thereafter with his mechanic. After defendant and his mechanic looked at the car, defendant asked whether he needed to leave a deposit, but Dan declined, promising that the car would still be there the next day. Defendant agreed to come back the next day at 12:30 p.m., but he never showed up. According to Dan, defendant called Ralph on Friday, apologized for not showing up, and asked to see the car again.
On September 24th, defendant arrived at Anderson's house and asked to take the car for a test drive. Anderson agreed to accompany defendant on the test. Anderson informed defendant that the car was not insured and instructed defendant on a specific route for the test drive. Anderson testified that part of the instructed route included getting on the expressway, but as they approached the expressway ramp, Anderson realized that defendant was in the wrong lane. When Anderson advised defendant that he needed to change lanes, defendant replied, "No, the car is mine now[,]" pulled out a gun, and pointed it at Anderson. Anderson told defendant he could have the car and asked to be let out. Defendant stopped at a red light and told Anderson, "All right when that light turns green you better be out the door or I will blow you through the door." Anderson got out.
Joseph Davis testified that Earl Brady brought a Camaro drag-racing car to his racecar chassis fabrication shop to display it for sale. Approximately four or five days before September 29, 2005, three men came to look at the Camaro; one of them identified himself as "Jacob Woods." At trial, Davis identified defendant as "Jacob Woods" and noted that he had been the one doing most of the talking. Defendant came back a second time and then a third time on the 29th. On September 29th, defendant called Davis and indicated that he was ready to make a deal, so Davis called Brady and told him to come over. Brady arrived in his truck with his friend Patrick Wendell. Defendant and two other men showed up later in a grey Intrepid. During negotiations, defendant told Davis that he wanted to take the Camaro to his mechanic at King Automotive. Brady agreed, loaded the Camaro onto a trailer attached to his truck, and they all left.
At trial, both Brady and Wendell identified the prospective buyer of the Camaro as defendant. The group arrived at a house where defendant said they would meet the mechanic and defendant asked Brady to back the truck into the driveway. Defendant and Brady were discussing the Camaro, when one of defendant's associates pulled out a gun and demanded Brady's keys and cell phone. When Brady refused, the associate fired the gun up into the air; Brady then complied. The men also took Wendell's cell phone. The men told Wendell and Brady to walk across the street and into the woods. While in the woods, Brady and Wendell heard the vehicles drive away. Brady and Wendell walked to a nearby house and called the police.
Wayne Grimes, defendant's stepbrother, testified that he helped defendant commit the Brady carjacking. Grimes testified that he owned an Intrepid, in which he drove defendant and defendant's friend, Tiaqua, to Davis's race shop on September 29, 2005. After defendant spoke to some men about a car, defendant directed Grimes to drive to defendant's "engineer." On the way, defendant told Grimes that he planned to "take" the cars and sell them, and Tiaqua handed Grimes a gun. Grimes testified that they arrived at a house, and, after Grimes gave him the signal, he pointed the gun at one of the men and took his keys and cell phone. He testified that he shot the gun in the air when the man first refused. He also testified that he ordered the men to walk into the woods. According to Grimes, after the men walked into the woods, he got in his car and left defendant and Tiaqua. Grimes testified that he had pleaded guilty to armed robbery and felony firearm.
Thomas Sandstrom testified that on October 11, 2005, a man, who had already called the previous day, came to his home in a metallic Intrepid to see a Cadillac that Sandstrom had advertised for sale. At trial, both Thomas and his wife Maria Sandstrom identified defendant as the prospective buyer. Defendant asked to take the car to his mechanic at King Automotive and Thomas agreed. Thomas rode in the Cadillac with defendant, defendant's associate...
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