People v. Rush
| Docket Number | 353182,353184 |
| Decision Date | 13 January 2022 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN Plaintiff-Appellee, v. DARNELL RUSH, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN Plaintiff-Appellee, v. CARLOS THOMAS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC Nos. 19-004021-01-FC, 19-005373-01-FC
Before: Boonstra, P.J., and Cavanagh and Riordan, JJ.
In these consolidated appeals, [1] defendants Darnell Rush (Rush) and Carlos Thomas (Thomas) appeal by right their convictions entered after a joint trial before a single jury, of first-degree felony murder, MCL 750.316(1)(b), armed robbery MCL 750.529, mutilation of a dead body, MCL 750.160, and possession of a firearm during the commission of a felony MCL 750.227b. The trial court sentenced Rush to concurrent prison terms of life without parole (LWOP) for the murder conviction, 10 to 60 years for the armed robbery conviction and 5 to 10 years for the mutilation conviction, and a consecutive two-year term of imprisonment for the felony-firearm conviction. The court sentenced Thomas as a third-offense habitual offender, MCL 769.11, to concurrent prison terms of LWOP for the murder conviction, 562 to 800 months for the armed robbery conviction, and 5 to 10 years for the mutilation conviction, and a consecutive two-year term of imprisonment for the felony-firearm conviction. We affirm both defendants' convictions and sentences.
Defendants' convictions arise from their participation with at least three accomplices in the fatal shooting of Christopher Thompson (Thompson) during an armed robbery. Thompson was shot while sitting inside his GMC Yukon that was parked in the driveway of a Detroit home during the early morning hours of January 3, 2018. Demonte Foster (Foster)[2] testified that on the night in question, he observed expensive-looking wheel rims on the tires of Thompson's Yukon, and called another accomplice, Jarrin Larry (Larry), [3] to meet him, saying he wanted to rob "[t]he guy in the truck." Foster testified that he, Thomas, Larry, and two other men, Ralph Scott (Scott)[4] and Jacarta Jennings (Jennings)[5] met near Thompson's vehicle and that Larry was armed with a firearm. Larry, however, denied ever being armed with a firearm during the robbery. Foster testified that Rush, Thomas, and Larry walked toward Thompson's truck to carry out the robbery. However, Larry testified that Rush, Thomas, and Scott were the three men who approached Thompson's vehicle. Both witnesses testified that they heard at least one gunshot and that the group then fled the scene. Both witnesses also testified that, after Thomas expressed concern about possible identification evidence being left at the scene, the group returned to the scene and three of them used gasoline to set Thompson's truck on fire with Thompson still inside. Foster testified that Rush, Thomas, and Larry set the fire; while Larry testified that it was Rush, Thomas, and Scott who did so. An autopsy revealed that Thompson died from two gunshot wounds, one to the neck and one to the chest. Surveillance video collected by police showed three men approach Thompson's truck, although it did not capture any shooting. The recording also showed three men on foot returning a short time later and lighting Thompson's vehicle on fire.[6]
The jury convicted defendants as described. These appeals followed.
Rush argues that there was insufficient evidence to support his conviction of first-degree felony murder under an aiding or abetting theory, because there was insufficient evidence that he had the requisite intent. We disagree. We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich.App. 703, 713; 873 N.W.2d 855 (2015). When determining 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 proven beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury's verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).
A conviction for first-degree felony murder requires proof that the defendant (1) killed the victim, (2) with the intent to kill, to cause great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of a felony specifically enumerated in MCL 750.316(1)(b).[7] People v Smith, 478 Mich. 292, 318-319; 733 N.W.2d 351 (2007); People v Gayheart, 285 Mich.App. 202, 210; 776 N.W.2d 330 (2009). The facts and circumstances of a killing may give rise to an inference of malice. People v Carines, 460 Mich. 750, 759; 597 N.W.2d 130 (1999). A jury may infer malice from evidence that the defendant intentionally set in motion a force likely to cause death or great bodily harm, or from the use of a deadly weapon. Id.
At trial, the prosecution's theory of the case was that Rush was guilty of first-degree felony murder as an aider or abettor. A person who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense. MCL 767.39.
Alternatively, the prosecution may prove an offense on an aiding and abetting theory with proof that "the charged offense was a natural and probable consequence of the commission of the intended offense." People v Robinson, 475 Mich. 1, 15; 715 N.W.2d 44 (2006). "Aiding and abetting" describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime. Carines, 460 Mich. at 757; People v Rockwell, 188 Mich.App. 405, 411-412; 470 N.W.2d 673 (1991). "The quantum of aid or advice is immaterial as long as it had the effect of inducing the crime." People v Lawton, 196 Mich.App. 341, 352; 492 N.W.2d 810 (1992). An aider or abettor's state of mind may be inferred from all the facts and circumstances, including a close association between the defendant and the principal, and the defendant's participation in the planning or execution of the crime. Carines, 460 Mich. at 757; People v Bennett, 290 Mich.App. 465, 474; 802 N.W.2d 627 (2010).
Viewed in a light most favorable to the prosecution, the evidence was sufficient to show that a member of Rush's group committed the crime of first-degree felony murder by shooting Thompson in the neck and chest, causing his death, as part of the commission of an armed robbery, and that, at the time of Thompson's killing, Rush and the other men intended to rob Thompson. Second, there was sufficient evidence that Rush assisted in Thompson's murder by (1) planning and agreeing with his codefendants to rob Thompson, (2) acting in concert with two of his codefendants, at least one of whom was armed, in approaching Thompson's truck to carry out the robbery, (3) fleeing from the scene with his codefendants after Thompson was shot, leaving Thompson in the truck, and (4) returning to the scene with two of his codefendants and burning Thompson's truck, with Thompson inside, in an effort to avoid detection. See Carines, 460 Mich. at 757; People v Bennett, 290 Mich.App. 465, 474; 802 N.W.2d 627 (2010).
Moreover, an aider or abettor is criminally responsible for anything that is fairly within the common enterprise such that one might anticipate its commission should the opportunity arise. Robinson, 475 Mich. at 9, 15. Rush does not dispute that the evidence was sufficient to show that he knew and intended for the codefendants to commit an armed robbery against Thompson, and that he intended to participate in that robbery. Because Rush agreed to commit a robbery against Thompson, was aware that a firearm was being used to carry out the planned robbery, and voluntarily accompanied his codefendants as they approached Thompson in order to rob him, the evidence, considered together, was sufficient to support a finding that a fatal shooting was a natural and probable consequence of the intended armed robbery. Id. Accordingly, the evidence was sufficient to support Rush's conviction of first-degree felony murder under an aiding or abetting theory.
Alternatively, Rush argues that he should receive a new trial because his conviction for first-degree felony murder was against the great weight of the evidence. Again, we disagree. A defendant is required to move for a new trial in the lower court to preserve a claim that his conviction is against the great weight of the evidence. People v Cameron, 291 Mich.App. 599, 617-618; 806 N.W.2d 371 (2011). Because Rush did not raise this issue in a motion for a new trial, we review this unpreserved claim for plain error affecting Rush's substantial rights. People v Musser, 259 Mich.App. 215, 218; 673 N.W.2d 800 (2003).
Rush's great-weight...
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