People v. Smith

• Decision Date: 14 February 2001
• Docket Number: Docket No. 209326.
• Citation: 625 N.W.2d 46,243 Mich. App. 657
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Dwain SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

625 N.W.2d 46

243 Mich. App. 657

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Dwain SMITH, Defendant-Appellant.

Docket No. 209326.

Court of Appeals of Michigan.

Submitted January 11, 2000, at Lansing.

Decided December 15, 2000, at 9:25 a.m.

Released for Publication February 14, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and Lenore M. Ferber, Assistant Prosecuting Attorney, for the people.

Carolyn A. Blanchard, Northville, for the defendant on appeal.

Before WHITBECK, P.J., and HOEKSTRA and OWENS, JJ.

PER CURIAM.

Defendant Steven Smith appeals as of right his jury convictions of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(e); MSA 28.788(2)(1)(e), armed robbery, M.C.L. § 750.529; MSA 28.797, possession of a firearm by a felon, M.C.L. § 750.224f; MSA 28.421(6), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). The trial court sentenced defendant to serve concurrent sentences of forty to sixty years' imprisonment for the criminal sexual conduct and armed robbery convictions, as well as three to five years' imprisonment for the conviction of possession of a firearm by a felon. These sentences are preceded by the mandatory two-year sentence for his conviction of possession of a firearm during the commission of a felony. We affirm.

I. Facts And Procedural History

A. The Charged Offenses

This case arises out of a sexual assault and robbery that occurred in the early morning hours outside a University of Michigan dormitory in Ann Arbor. These offenses were followed by a series of other crimes that concerned the Ann Arbor community. Because there are multiple victims in this case, we refer to them with pseudonyms to avoid the confusion that would result from calling each of them "the victim."

At approximately 8:00 a.m. on Saturday, October 5, 1996, a woman (Jane Doe) left her dormitory room at Bursley Hall. As she left the building, she noticed a man dressed all in black and wearing a hooded sweatshirt standing at the bus stop about ten to fifteen feet from the door. Several moments later, as she reached her car, a man approached her from behind, put a pistol to her head, and then forced her into her car. The assailant entered the car after she did and sat in the driver's seat. He ordered her not to look at him and then told Doe to give him her wallet. As the woman did so, she glanced at the assailant several times until he told her to turn around and look out the window.

After the assailant combed through Doe's wallet, he told her to unfasten her pants and he put his fingers inside her vagina. Next, when he told her to remove her pants, she began crying uncontrollably. According to Doe, at that point the assailant must have decided that "it wasn't worth it" because he got out of the car and told her to keep her head below the dashboard for five minutes. Approximately one minute later, she heard a car speed past her and she tried to look out the window, but could not see anything because the window had fogged. After the assault, Doe checked her wallet and discovered that all the money, between $25 and $30, was gone.

Doe described her assailant to the police as a black male, 5'6" or 5'7", dressed in black shoes, black jeans or sweat pants, and a black hooded sweatshirt worn with the hood up. Although he wore a navy blue bandanna across the lower portion of his face, the bandanna slipped at one point during the attack. On the basis of a glimpse she got when the bandanna slipped, she believed that the man she had seen standing at the bus stop that morning was the same individual who had attacked her in her car. The pistol he carried was a two-tone silver semiautomatic with bronze on the sides.¹

B. Other Offenses

(1) Slauson Middle School

A few days after the assault and robbery charged in this case, a woman (Jane Jones) who worked at the Slauson Middle School arrived at the school at about 6:35 a.m. A white, "beat up," "rusty" car pulled into the parking lot shortly after she arrived there. Because it was her responsibility to open the school building early each morning, Jones was not accustomed to seeing other cars at the school when she arrived. She became scared when the car drove slowly past her and stopped a few car lengths away, so she locked her car doors and stayed in the car. The white car left immediately after a co-worker's car pulled into the lot.

A secretary at the school (Jane Miller) was not so lucky. She arrived at the school sometime between 6:40 a.m. and 6:45 a.m. She parked her car and, as she got out of the car, someone grabbed her from behind. A man told her to get back into her car. When she refused, the man told her to do as he said because he did not want to hurt her. He put his hand over her mouth, pulled her head to the side, and shoved a shiny metal object about three inches long between her eyes and only one inch from her face. She thought the object was a knife because it was small and because of the way the man held it; however, she could not focus on the object because it was so close to her face. Miller and her attacker struggled for a moment and ended up staring each other in the face. He then picked up her purse, which she had dropped during the struggle, and ran away from the school. Miller described her assailant to the police as a 5'7" to 5'9" tall African-American man with a medium complexion and medium build. He wore a dark, navy blue jacket with a hood covering his head.

(2) Clarion Hotel

A woman (Jane White) was working in the front lobby of the Clarion Hotel in Ann Arbor at approximately 4:00 a.m. in mid-October 1996 when a man holding a pistol walked in and directed her to open the cash drawers and give him the money. She gave the man approximately $500 to $650 and then he slowly walked out of the lobby. One $100 bill and at least one roll of quarters packaged in a standard bank roll were among the cash she gave him. White described the robber as approximately 5'5" to 5'6" tall. He wore a black jacket with the word "Spurs" across the back and had a dark scarf across the lower portion of his face. His pistol was small, about the size of his hand, and was a "silver chrome" color.

C. The Police Investigation

Detective Michael Schubring of the Ann Arbor Police Department was assigned to investigate the Slauson Middle School robbery. He had been sharing information regarding his investigation with the University of Michigan Department of Public Safety when, on October 15, 1996, he received information that two suspects, defendant and his wife, Wendy Smith, had been arrested in connection with these crimes and were being held at the Ann Arbor Police Department.

After Schubring advised Wendy Smith of her Miranda² rights, she reportedly told him that she and defendant had argued on the morning they were arrested. They decided to go for a drive at 3:00 a.m. or 4:00 a.m. so that they would not disturb other family members who were living in their apartment. Defendant drove them to a gasoline station on Victors Way.

At this point in the interview, Schubring interjected that the police were investigating a series of early morning robberies and sexual assaults, which included the crimes at the University of Michigan, Slauson Middle School, and the Clarion Hotel, as well as a robbery at a local Subway restaurant. Wendy Smith stated that defendant was at home in bed with her at the time of each of those offenses. Schubring then left the interrogation room for approximately one hour, during which time he interviewed defendant. When Schubring returned to the room where Wendy Smith was waiting, she stated that even though she had been truthful regarding why she and her husband went for a drive during the early morning hours on the day they were arrested, she had lied about several other matters. She stated that, in reality, when they were driving down Victors Way, defendant saw a police patrol car and stated, "I got to get rid of this gun." He then threw a small gold and silver pistol out the window of his car somewhere along Victors Way.

Wendy Smith told Schubring that, on the day of the Clarion Hotel robbery, defendant asked to use her car approximately thirty minutes before the robbery occurred and was gone for approximately one hour. On the day of the Subway incident, defendant had gone out for an extended period on foot and definitely did not have her car. However, she believed that defendant did have the car on the day of the Slauson Middle School robbery. She also noted that their oldest son was a student at that school, so her husband was familiar with that area. Relying on Wendy Smith's description of the area along Victors Way where defendant tossed the pistol, the police found a pistol several feet away from the curb. The pistol was a Titan .25 caliber semiautomatic with five aluminum rounds in the magazine. It had a blue steel barrel with a gold-plated slide. In his twenty-four years as a police officer, Schubring had never seen another pistol like it. Later, when the police showed this pistol to Doe, she stated that she had no doubt it was the pistol her attacker used.

After locating the pistol, Schubring obtained a search warrant and executed it at defendant's home. Officers found a box of ammunition on the top of the dresser, which contained eight aluminum rounds identical to the rounds found in the pistol located on Victors Way. They also found in the pocket of a denim jacket $240 in paper currency and a $10 roll of quarters packaged in a standard orange and white bank roll; the paper currency consisted of one $100 bill, as well as three $20 bills, two $10 bills, one $5 bill, and fifty-five $1 bills. Sergeant Kevin MeNulty of the University of Michigan Public Safety Department found a black hooded sweatshirt, black sweat pants, and a pair of black jeans in the apartment.

Crystal Smith, defenda...