People v. Simmons

• Decision Date: 02 August 1984
• Docket Number: Docket Nos. 66263,66267
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester SIMMONS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carnell HUMPHREY, Defendant-Appellant. 134 Mich.App. 779, 352 N.W.2d 275
• Court: Court of Appeal of Michigan — District of US

Page 275

352 N.W.2d 275

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester SIMMONS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carnell HUMPHREY, Defendant-Appellant.

Docket Nos. 66263, 66267.

134 Mich.App. 779, 352 N.W.2d 275

Court of Appeals of Michigan.

Submitted Jan. 5, 1984.

Decided April 11, 1984.

Released for Publication Aug. 2, 1984.

[134 MICHAPP 781] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Andrea L. Solak, Detroit (in Simmons) and Jeffrey Caminsky, Detroit (in Humphrey), for the People.

Clarence H. Ledwon, Southfield, for defendant-appellant Simmons.

James R. Neuhard, State Appellate Defender by Susan J. Smith, Detroit, for defendant-appellant Humphrey.

[134 MICHAPP 782] Before J.H. GILLIS, P.J., and T.M. BURNS and ROBINSON, ^* JJ.

PER CURIAM.

Following a joint trial before a jury, defendants Carnell Humphrey and Lester Simmons were convicted of voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553. Defendant Simmons was also convicted of one count of felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant Simmons was sentenced to a term of 10 to 15 years imprisonment on the manslaughter charge plus a consecutive term of 2 years on the felony-firearm charge. Defendant Humphrey was sentenced to a term of 7 1/2 to 15 years imprisonment. Defendants appeal as of right. Their appeals have been consolidated.

Defendant Simmons first argues that he was improperly arrested for "investigation of murder" and that the information should have been quashed and his case dismissed. Specifically, defendant Simmons argues that the testimony of Lt. Lordon to the effect that defendant was arrested for investigation of murder establishes that his arrest was illegal. Lt. Lordon was not the arresting officer, nor was he involved in giving information to the arresting officer. Mr. Simmons made a statement to Lt. Lordon after he was arrested.

Defendant relies on People v. Martin, 94 Mich.App. 649, 290 N.W.2d 48 (1980), for the proposition that an arrest for "investigation of murder" is per se unlawful since there is no such crime. Defendant Simmons's claim is without merit for four reasons. First, Lt. Lordon was not the arresting officer and his personal opinion is not determinative. Second, the arresting officer had probable [134 MICHAPP 783] cause to arrest defendant Simmons since Simmons admitted that he shot the victim. This distinguishes each case cited by defendant. In the cases cited by defendant, the arrests were all based on a tip from a third party or a report of the crime by the defendant without any admission of participation. Third, the arresting officer informed defendants they were being arrested for "assault with intent to commit murder". The arresting officer had probable cause to believe that the shooting was not in self-defense since there was evidence that defendant Simmons fired numerous shots at the victim. Finally, the terminology used in effectuating the arrest is not determinative. As noted by this Court in People v. Hamoud, 112 Mich.App. 348, 351-352, 315 N.W.2d 866 (1981), the use of the word investigation does not per se make the arrest illegal and the Court should look to see if the arrest was supported by probable cause. We conclude that defendant Simmons's arrest was valid.

Defendant Humphrey contends that the trial court, in sentencing him, improperly considered a prior misdemeanor conviction for which he was not represented by counsel. This Court previously remanded Humphrey's case for a Tucker hearing to determine if the trial court improperly considered defendant's prior misdemeanor conviction. ¹ On remand, the trial court stated:

"This matter was remanded to this particular Court, I believe, for the purpose of acting upon a Tucker hearing. In the essence of that is at the time of the sentence, the Court was presented with a pre-sentence report, the probation report, and all other papers. And the Court had full knowledge of the previous several minor misdemeanor convictions of this particular Defendant,[134 MICHAPP 784] Carnell Humphrey. And the Court, in determining the sentence pointed out to Mr. Humphrey the fact that there were these other matters pending against him, did not make any difference. Rather, it would not have made any difference whatsoever. And the Court had full knowledge of it. But because of the seriousness of the crime, the matter--the manner of the crime, and the hainnes [sic, heinousness] of his crime. The Court did give what it though[t] was the appropriate sentence at that time.

"So when the Court of Appeals sent this case back here, I'd like the Court of Appeals to know, of course, that the fact that the Court had full knowledge of that, but did not interfere with the sentence whatsoever that was given by this Court given to Defendant."

Since the trial court did not consider defendant's misdemeanor convictions, the rule stated in Tucker was not violated. People v. Watroba, 89 Mich.App. 718, 282 N.W.2d 196 (1979).

We next consider the issues argued by both defendants. Both defendants argue that there was insufficient evidence to convict them. Defense counsel moved for a directed verdict at the close of the people's proofs and again renewed the motion at the end of the trial, arguing that the evidence was not sufficient to send the case to the jury. When reviewing the denial of defendants' motion for a directed verdict, this Court views the evidence presented at the time of the motion in a light most favorable to the prosecution and determines whether a rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979).

It is clear that the corpus delicti of any offense is not established until evidence is presented from which a rational trier of fact could reasonably conclude that all the essential elements of the [134 MICHAPP 785] offense have been committed and that a criminal act was responsible therefor. People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973). In this regard, a conviction of second-degree murder requires a showing of the killing of a person by another with malice and without justification or excuse. People v. Hawkins, 80 Mich.App. 481, 486, 264 N.W.2d 33 (1978). ² The corpus delicti of a crime may be established by circumstantial evidence and reasonable inferences therefrom, and the identity of the perpetrator is not an element of the corpus delicti. People v. Harris, 64 Mich.App. 503, 507, 236 N.W.2d 118 (1975).

In the instant case, these elements were reasonably established. Doreen Tyus, the deceased's niece, testified that she identified the body of McCarroll Tyus on November 25, 1981, at the Wayne County morgue. This testimony established that there was a death. The medical examiner's testimony, which established that Tyus was shot six times, with four of the shots entering Tyus's body from the rear, is in itself sufficient to allow a jury to infer malice as well as lack of justification or excuse. There was also some evidence that Tyus was not carrying a weapon on that particular day and that he had a reputation for being a peaceful person, which further supports the inference that the killing was without justification. Accordingly, there was sufficient evidence to support the charge of second-degree murder to present the issue to the jury. The trial court did not err in denying defendant's motion for directed verdict.

Defendant Humphrey was convicted of being an aider and abettor, M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. To be convicted as an aider and abettor, a defendant must either possess the requisite intent to commit [134 MICHAPP 786] the principal offense or participate while knowing that his codefendant possessed the requisite intent. Such intent or knowledge may be inferred from circumstantial evidence, although a defendant's mere presence at the scene of the crime, in and of itself, is insufficient to make him an aider and abettor. People v. Karst, 118 Mich.App. 34, 39, 324 N.W.2d 526 (1982).

Upon reviewing the facts, we find that there was sufficient evidence to permit the jury to infer that defendant Humphrey had knowledge of Simmons's intent. The facts show that both defendants went to a pawn shop prior to the incident in order to redeem a rifle. The facts also tended to show that Humphrey drove Simmons around trying to find the victim. When they found the victim, Humphrey waited in his car while Simmons went to get the rifle in the trunk to shoot the victim. After Simmons shot the victim, Humphrey drove him away from...