People v. Spearman, s. 130745

• Citation: 491 N.W.2d 606,195 Mich.App. 434
• Decision Date: 04 August 1992
• Docket Number: Nos. 130745,131895,s. 130745
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donnie A. SPEARMAN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dedrea RUSH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 606

491 N.W.2d 606

195 Mich.App. 434

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donnie A. SPEARMAN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dedrea RUSH, Defendant-Appellant.

Nos. 130745, 131895.

Court of Appeals of Michigan.

Submitted July 15, 1992, at Detroit.

Decided Aug. 4, 1992, at 9:15 a.m.

Released for Publication Nov. 19, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, Ernest O. Hornung, Asst. Pros. Atty., in Docket No. 130745, and Maria A. Petito, Asst. Pros. Atty., in Docket No. 131895, for plaintiff-appellee.

John B. Payne, Jr., Dearborn, for Donnie A. Spearman.

Donnie A. Spearman, in pro. per.

Ted C. Farmer, Detroit, for Dedrea Rush.

Before FITZGERALD, P.J., and HOOD and KINGSLEY, ^* JJ.

PER CURIAM.

The charges in this case arose from the shooting death of a pizza delivery man. Defendants Rush and Spearman, both of whom were minors at the time of the crime, were tried together in the circuit court under the automatic waiver law, M.C.L. 600.606; M.S.A. 27A.606. Rush was tried by a jury and Spearman by the court. Rush was charged with first-degree (felony) murder, M.C.L. 750.316; M.S.A. 28.548, possession of a firearm during the commission of a felony, M.C.L. 750.227b; M.S.A. 28.424(2), and assault with intent to rob while armed, M.C.L. 750.89; M.S.A. 28.284. Spearman was charged with first-degree (felony) murder.

Spearman was convicted of second-degree murder, M.C.L. 750.317; M.S.A. 28.549, and sentenced as an adult to 18 to 40 years' imprisonment. Rush was convicted of second-degree murder, possession of a firearm during the commission of a felony, and assault with intent to rob while armed. He was sentenced as an adult to the mandatory two years' imprisonment for the felony-firearm conviction and to concurrent terms of 20 to 40 years' imprisonment for each of the other two convictions. Both defendants appeal as of right. We vacate Spearman's conviction and remand for reconsideration and affirm in part and reverse in part with regard to Rush.

Defendants, and perhaps others, planned to rob a pizza delivery person by ordering a pizza delivered to a vacant home and waiting for the delivery person. ¹ Rush hid behind a bush with a sawed-off shotgun. When the delivery man arrived, Rush jumped out from behind the bush and shot him. All the participants fled; no money was taken.

We will deal first with the arguments raised by Spearman.

Spearman first argues that the trial court impermissibly used the intent to rob to satisfy the mens rea requirement of second-degree murder. We disagree.

Second-degree murder is established where the defendant causes a death with malice and without provocation. People v. Harris, 190 Mich.App. 652, 659, 476 N.W.2d 767 (1991). Malice is defined as the intent to kill or to do great bodily harm, or as the wilful and wanton disregard of the likelihood that the natural tendency of the defendant's actions will be to cause death or great bodily harm. People v. Kelly, 423 Mich. 261, 273, 378 N.W.2d 365 (1985); People v. Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980). Malice may not be inferred solely from the intent to commit another felony but it may be inferred from the facts and circumstances surrounding the commission of that felony. Kelly, 423 Mich. at 273, 378 N.W.2d 365; Aaron, 409 Mich. at 727-730, 299 N.W.2d 304.

Where, as in this case, a defendant is being held vicariously liable for a killing committed by another, he must be found to have had the same mens rea required to convict the principal, that is, malice as defined above. Kelly, 423 Mich. at 278, 378 N.W.2d 365; Aaron, 409 Mich. at 731, 299 N.W.2d 304. However, "if the aider and abettor participates in a crime with knowledge of his principal's intent to kill or to cause great bodily harm, he is acting with 'wanton and willful disregard' sufficient to support a finding of malice." Kelly, 423 Mich. at 278-279, 378 N.W.2d 365. An aider and abettor may also be held liable "on agency principles" where he acts "intentionally or recklessly in pursuit of a common plan." Aaron, 409 Mich. at 731, 299 N.W.2d 304.

In this case, a person who was present at the home where the crime was planned testified that Spearman said that they were going to rob the pizza man. This witness also testified that he saw Rush with a bulge under his clothes, which the witness concluded was a weapon that he believed that Rush had purchased a few days before the murder. Another person who was present when the crime was planned testified that Spearman asked him to get off the phone so that he could order a pizza. The witness did not remain in the room while Spearman made the call.

Spearman's statement to the police was admitted into evidence outside the presence of Rush's jury. In that statement, Spearman indicated that the robbery was Rush's idea and that the owner of the home where it was planned--whose phone number was given to the pizza parlor to confirm the order--was the one who called for the pizza. Spearman nevertheless indicated that he was aware that, when they arrived at the vacant home to wait for the pizza, Rush hid in the bushes with a sawed-off shotgun. The shotgun had been purchased at a K mart store by or for Rush only two days before the crime and had been sawed off in the basement of the home where the robbery was planned on the day before the crime. Spearman characterized his own role in the event as that of a "lookout."

The evidence on the record, especially Spearman's confession, was sufficient to support a finding beyond a reasonable doubt that he acted with wilful and wanton disregard of the possibility that death or great bodily harm would result from a planned robbery that involved someone hiding behind bushes with a sawed-off shotgun.

Spearman, relying on People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), argues that the elements of the crime, specifically malice, must be established independently of his confession. We disagree. According to two recent well-reasoned interpretations of the corpus delicti rule, the only things that must be proven independently of a defendant's confession are the fact of death and the fact that death was the result of some criminal agency. People v. Williams, 422 Mich. 381, 391-392, 373 N.W.2d 567 (1985); People v. Hughey, 186 Mich.App. 585, 587-589, 464 N.W.2d 914 (1990). Those elements were established in this case by the stipulated testimony of the medical examiner. It was therefore proper to rely on Spearman's confession to find that he acted with malice.

Spearman next argues that the trial court erred in relying on Rush's confession to determine Spearman's role in the robbery. The trial court found that, in addition to being a lookout, Spearman "was on the porch ... acting as the person who was to receive the pizza." Spearman correctly points out that the only support for this finding was Rush's confession. According to Spearman's own statement--which was the only other evidence placing him at the scene--he acted only as a lookout and was standing two or three houses away from the appointed delivery site at the time of the shooting.

Spearman correctly points out that a nontestifying codefendant's confession is inadmissible against a defendant. See People v. Banks, 438 Mich. 408, 420-421, 475 N.W.2d 769 (1991); People v. Watkins, 438 Mich. 627, 646, 651-652, 475 N.W.2d 727 (1991). In this case, however, the confession was admitted only against Rush, who was being tried by a jury. The court's use of the confession against Spearman was therefore improper. The issue thus is whether this improper use by the trial court was harmless and, if it was not, what remedy is appropriate.

To find a defendant guilty on an aiding and abetting theory, the people must show that (1) a crime was committed either by the defendant or by another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid or encouragement. People v. Rockwell, 188 Mich.App. 405, 411, 470 N.W.2d 673 (1991). Mere presence at the scene, even with knowledge, is insufficient. Id., at 412, 470 N.W.2d 673; People v. Anderson, 166 Mich.App. 455, 475, 421 N.W.2d 200 (1988). However, "other factors such as a close association between the defendant and the principal actor, his participation in planning or executing the crime, and evidence of flight after the crime could be considered in determining whether there was sufficient evidence that he acted in concert with the principal." Id.; People v. Trudeau, 51 Mich.App. 766, 772, 216 N.W.2d 450 (1974). Aiding and abetting "describes all forms of assistance ... and comprehends all words or deeds which may support, encourage or incite the commission of a crime." Rockwell, 188 Mich.App. at 411-412, 470 N.W.2d 673.

In this case, there was evidence from which the court could properly find that Spearman participated in planning the robbery, that he ordered the pizza, that he was a lookout, and that he fled the scene of the crime. However, the evidence was not so overwhelming that we can say that the error was harmless beyond a reasonable doubt. Whether the trial court would have found Spearman guilty of second-degree murder on an aiding and abetting theory had it not improperly relied on Rush's confession is a question that should be answered by the trial court in the first instance. The trial court can make that determination on the basis of the evidence already submitted at trial but excluding Rush's confession. Spearman's conviction is hereby vacated, and the case is remanded for reconsideration in light of the evidence properly admitted against Spearman. See People v. Simon, 189 Mich.App. 565, 567-569, 473...