People v. Smith
| Decision Date | 22 October 2015 |
| Docket Number | No. 322745,322745 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HENRY VICTOR SMITH, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kalamazoo Circuit Court
Before: TALBOT, C.J., and BECKERING and GADOLA, JJ.
Defendant appeals as of right his jury trial conviction of armed robbery, MCL 750.529. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 25 to 50 years' imprisonment. For the reasons below, we affirm.
On December 6, 2013, defendant and Jerome Crenshaw robbed the Sunny Mart on South Westnedge Avenue in Kalamazoo, Michigan. When defendant and Crenshaw entered the store, defendant pointed a BB gun at the clerk, Surinder Kaur, and ordered her to take money out of the register. According to Crenshaw, once Surinder opened the register, defendant took cash out of the drawer and stuffed it into his pockets. At trial, Deb Kaur, another employee who was behind the counter during the robbery, positively identified defendant as the man who pointed the BB gun at Surinder. Surinder testified that both of the men were wearing masks so she could only see their eyes, and she was frightened because she believed defendant was going to shoot her.
After the robbery, Crenshaw and defendant ran outside and got into a gray minivan with a driver inside waiting for them.1 A motorist witnessed Crenshaw and defendant run to the van and she informed the police. On a hunch, Kalamazoo Police Officer Peter Hoyt sent officers to the Hilltop apartment complex, where Officer John Resseguie saw two men get out of a van matching the description of the getaway van. The police apprehended defendant and Crenshaw inside one of the buildings. Crenshaw confessed that he and defendant robbed the Sunny Mart,and the police arrested both men. At the station, the police found a grocery bag containing $3,513 in cash in the crotch area of defendant's pants. At trial, defendant's ex-wife, Dorothy Smith, testified that defendant was a heroin addict who was homeless as of November 2013. Officer Scott Brooks testified that Crenshaw told him he and defendant robbed the Sunny Mart because they were heroin addicts and they needed money for drugs.
Defendant first argues that the trial court erred by admitting testimony from defendant's ex-wife that defendant was a heroin addict. Although defendant argues that this testimony was admitted in violation of MRE 404(a), the prosecutor offered the evidence, and the trial court allowed it, for the purpose of showing defendant's motive for robbing the Sunny Mart. Accordingly, the admissibility of the evidence is properly considered under MRE 404(b) rather than MRE 404(a).
Generally, evidence of other crimes, wrongs, or acts "is inadmissible to prove a propensity to commit such acts." People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). However, such evidence may be admissible for other purposes under MRE 404(b)(1), which provides the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Admissible other acts evidence is not limited to the exceptions set forth in MRE 404(b)(1). People v VanderVliet, 444 Mich 52, 65; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994). Rather, "other acts evidence does not violate Rule 404(b) unless it is offered solely to show the criminal propensity of an individual to establish that he acted in conformity therewith." Id.
To determine whether other acts evidence is admissible under MRE 404(b), we apply the following four-pronged standard:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [VanderVliet, 444 Mich at 55.]
In this case, the prosecutor offered evidence that defendant was a heroin addict to show that his motivation for robbing the Sunny Mart was to obtain money to support his addiction. This is a proper purpose under MRE 404(b)(1). See People v Hoffman, 225 Mich App 103, 105; 570 NW2d 146 (1997). The prosecutor also had to show that the evidence was relevant to establish a material fact in the case or was "otherwise probative of a fact other than the defendant's character or criminal propensity." People v Mardlin, 487 Mich 609, 615; 790 NW2d607 (2010). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. To prove armed robbery, a prosecutor must show that a defendant intended to permanently deprive the victim of property. People v Parker, 230 Mich App 337, 344; 584 NW2d 336 (1998). Because evidence of defendant's drug use was relevant to show his intent to permanently deprive the Sunny Mart owners of property, the prosecutor satisfied the second admissibility prong of MRE 404(b). VanderVliet, 444 Mich at 55.
Even if evidence is relevant to demonstrate a proper purpose under MRE 404(b), it is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice under MRE 403. VanderVliet, 444 Mich at 55. "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." Crawford, 458 Mich at 398. Defendant's drug addiction was highly probative of his motive for robbing the Sunny Mart. See People v Rice (On Remand), 235 Mich App 429, 441; 597 NW2d 843 (1999) (). Further, evidence of defendant's drug addiction did not create a danger that the jury would conclude that defendant had a propensity to commit armed robbery because using drugs and committing a robbery are completely different acts. There is also no indication that evidence of defendant's drug use injected extraneous considerations such as jury bias, shock, anger, or sympathy. People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011). Finally, the trial court provided the jury with a limiting instruction, which cushioned the prejudicial effect of the evidence. Crawford, 458 Mich at 385. In sum, the drug addiction testimony was admissible under MRE 404(b), and the trial court did not abuse its discretion in admitting the evidence.
Defendant also seems to argue that the prosecutor committed error by eliciting the testimony regarding his drug addiction and commenting on this addiction during closing argument. Because defendant did not raise a claim of prosecutorial error below, we review the issue for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). In assessing whether a prosecutor's conduct amounted to error, we examine the entire record and any of the prosecutor's remarks in context to determine whether the defendant was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007).
To the extent that defendant argues the prosecutor committed error by eliciting the testimony regarding his drug addiction, his argument fails because a "prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be accepted by the court, as long as that attempt does not prejudice the defendant." People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). As discussed above, the challenged testimony was admissible under MRE 404(b), so the prosecutor did not commit error.
Defendant also implies that the prosecutor committed error by arguing during closing argument that defendant's motive for robbing the Sunny Mart was to get money to support his heroin addiction. However, the prosecutor's remarks were appropriate because they constituted reasonable inferences arising from the evidence, and responded to defendant's closing argumentattacking Crenshaw's credibility. See People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001); see also People v Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992). Defendant has not established plain error warranting reversal. Also, insofar as defendant argues that the admission of evidence of his drug addiction and the prosecutor's alleged errors violated his due process rights, defendant failed to support this claim with relevant law and has therefore abandoned it on appeal. People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001).
Defendant next argues that his trial counsel was ineffective for failing to timely file notice of an alibi witness and failing to call his alibi witness at trial. Whether a defendant was denied the effective assistance of counsel presents a mixed question of constitutional law and fact. People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004). We review questions of constitutional law de novo and a trial court's factual findings for clear error. Id. at 484-485.
To demonstrate ineffective assistance of counsel, a defendant must show that his attorney's performance fell below an objective standard of reasonableness, and that absent counsel's errors, there is a reasonable probability that the outcome of the proceedings would have been different. People v Pickens, 446 Mich 298, 302; 521 NW2d 797 (1994...
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