People v. Sexton

Decision Date14 June 2002
Docket NumberDocket No. 224917.
Citation646 N.W.2d 875,250 Mich. App. 211
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kent E. SEXTON, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janice M. Joyce Bartee, Senior Appellate Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek) and Kent E. Sexton, in propria persona, Detroit, St. Louis, for the defendant on appeal.

Before: BANDSTRA, C.J., and SAAD, P.J., and WHITBECK, J.

SAAD, P.J.

Defendant appeals as of right a jury trial conviction of solicitation to commit murder, M.C.L. § 750.157b, conspiracy to commit murder, M.C.L. § 750.157a(a) and M.C.L. § 750.316, conspiracy to obstruct justice, M.C.L. § 750.157a(a) and M.C.L. § 750.505, and common-law obstruction of justice, M.C.L. § 750.505. The trial court sentenced defendant to concurrent terms of life imprisonment for both the solicitation and conspiracy to commit murder convictions, and one to five years each for the conspiracy to obstruct justice and obstruction of justice convictions.

I. Facts and Procedural History

In March 1999, the Gibraltar Police arrested both defendant Kent Sexton and Frank Slavik after the police received information from Brian Gross that the two robbed a Total gasoline station in 1997. The record indicates that the prosecutor also considered charging Gross with participating in the robbery, but that the charge was dropped after Gross assisted in the robbery investigation and subsequent court proceedings. Gross testified as a key witness against defendant and Slavik at their preliminary examination on March 30, 1999, after which both defendant and Slavik were bound over for trial on armed robbery charges. Slavik posted bond later that day and defendant was released on bond on April 19,1999.

Several witnesses testified at trial regarding the events surrounding the charges in this case. Slavik testified that he and defendant became friends after defendant started working at a car audio store Slavik managed in 1994. The two worked together for approximately four years and, after Slavik left his job to start his own roofing business, the two maintained a friendship.1 According to Slavik's testimony and his statements to the police, on May 5, 1999, Slavik visited defendant at his workplace, Palco Electronics, in Southgate. While talking about the armed robbery charges, defendant commented to Slavik that the charges would be much more difficult to prove if Gross did not testify at trial. Defendant further stated that his friend "Charlie" was interested in "taking the job."

During their conversation, defendant asked if Slavik remembered seeing a man in the courtroom during their preliminary examination, whom defendant identified as "Charlie." Slavik recalled seeing the man in court and identified him during this trial as Charles Milstead. Defendant further told Slavik that Milstead was at the preliminary examination to kill Gross, but that he was unable to do so on that day. However, defendant explained that the preliminary examination allowed Milstead to identify and gather information about Gross in order to kill him.

According to Slavik, he told his attorney about defendant's comments to avoid being implicated if someone murdered Gross. Slavik testified that he also told his attorney that, at a motion hearing on May 17, 1999, defendant again talked about eliminating Gross and asked Slavik if he had $7,500, which Milstead demanded to be paid in two installments to perform the killing. Slavik's attorney notified Gibraltar Police Lieutenant George Hammerle about defendant's statements and, after talking to Slavik on May 24, 1999, Lieutenant Hammerle contacted the Michigan State Police. On June 3, 1999, Slavik repeated his conversation with defendant to Lieutenant Hammerle and state police Detective Sergeant Norman Lipscomb. Lieutenant Hammerle also provided Sergeant Lipscomb with a picture of Charles Milstead, whom he suspected was the man Slavik saw at the preliminary examination.

Later that day, June 3, 1999, Sergeant Lipscomb asked Slavik to meet with defendant while wearing a hidden recording device in order to gather more information about the potential murder. Slavik complied and, wearing a wire, he went to Palco Electronics to talk to defendant. During the recorded conversation, which was also videotaped by Sergeant Lipscomb, defendant and Slavik talked about Milstead's involvement and defendant unsuccessfully tried to reach Milstead by telephone. After Slavik left, Sergeant Lipscomb told Slavik to notify him if either Milstead or defendant tried to contact him. Over the next week, Slavik testified that he notified Sergeant Lipscomb after defendant left messages on his answering machine, including one letting Slavik know when Milstead would contact him.

On June 10, 1999, Slavik allowed Sergeant Lipscomb to connect a recording device to his home telephone to record conversations and messages. Over the next four days, Slavik recorded several telephone calls, all of which were played for the jury at trial. At various times, defendant left messages for Slavik to call him and Milstead left a message for Slavik to contact defendant. During one conversation on June 14, 1999, defendant instructed Slavik that Milstead would call Slavik at 11:30 p.m., and that if he did not call, Slavik should call Milstead. That night, Slavik did not receive Milstead's call, so Slavik called Milstead twice and left messages. Milstead returned Slavik's call after 1:00 a.m. and offered to meet Slavik at Elizabeth Park in Trenton the next day.

Before the appointed time on May 15, 1999, Slavik met Sergeant Lipscomb at the state police post and was outfitted with a recording device. Sergeant Lipscomb also provided Slavik with $3,500 in marked currency and followed Slavik to the park where several other officers were already positioned. Milstead arrived shortly after Slavik drove into the parking lot and the two talked for an hour to an hour and a half, all of which was recorded on audio and video tape by the state police. During the conversation, Milstead described several methods he might use to kill Gross. Milstead also recounted his involvement in several prior violent incidents involving unrelated parties. Milstead also told Slavik that he planned to kill Gross in two or three weeks, after he gathered more information. Near the end of the encounter, Slavik opened his trunk and handed Milstead an envelope containing $3,500. Milstead took the envelope and Slavik told Milstead he could sit inside Slavik's car to count the money. As Slavik and Milstead sat in Slavik's car, the police approached and placed Milstead and Slavik under arrest. The police arrested defendant at his home later that day.

Following a preliminary examination before 33rd District Court Judge Donald L. Swank on June 29, 1999, defendant was bound over for trial on charges of solicitation to commit murder, conspiracy to commit murder, conspiracy to obstruct justice, and common-law obstruction of justice. Thereafter, defendant filed in the Wayne Circuit Court a motion to quash the information and to dismiss the charges. Following a hearing on September 21, 1999, the trial court denied defendant's motions. Defendant and Milstead were tried together before one jury, and the jury found defendant guilty of the above charges on November 9, 1999.2

II. Analysis
A. Entrapment

Defendant contends that the trial court erred in denying his motion to dismiss, which was brought on the ground of entrapment. We disagree.

As this Court recently explained in People v. McGee, 247 Mich.App. 325, 344, 636 N.W.2d 531 (2001):

Whether entrapment occurred must be determined by considering the facts of each case and is a question of law for the court to decide. People v. Patrick, 178 Mich.App. 152, 154, 443 N.W.2d 499 (1989). The trial court must make specific findings regarding entrapment, and we review its findings under the clearly erroneous standard. People v. Juillet, 439 Mich. 34, 61, 475 N.W.2d 786 (1991); People v. Connolly, 232 Mich.App. 425, 428, 591 N.W.2d 340 (1998). The findings are clearly erroneous if this Court is left with a firm conviction that a mistake was made. Id. at 429, 591 N.W.2d 340.

Entrapment occurs if "(1) the police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or (2) the police engage in conduct so reprehensible that it cannot be tolerated by the court." McGee, supra at 344-345, 636 N.W.2d 531. The defendant bears the burden of proving entrapment by a preponderance of the evidence. People v. Pegenau, 447 Mich. 278, 294, 523 N.W.2d 325 (1994). The test for entrapment is objective and "focuses on the propriety of the government's conduct that resulted in the charges against the defendant rather than on the defendant's predisposition to commit the crime." People v. Hampton, 237 Mich.App. 143, 156, 603 N.W.2d 270 (1999). "Entrapment will not be found where the police did nothing more than present the defendant with the opportunity to commit the crime of which he was convicted." McGee, supra at 345, 636 N.W.2d 531.

Here, the trial court decided the question of entrapment at a pretrial hearing after reviewing the transcripts of the preliminary examination, five audio-visual exhibits, and after hearing two live witnesses, defendant and his mother. Defendant denied any conspiracy to commit murder, and insisted that Slavik lied at the preliminary examination about defendant's involvement. Defendant further testified that Slavik called him repeatedly about contacting Milstead, and that defendant finally gave Slavik Milstead's telephone...

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