People v. Thenghkam, Docket No. 207303.

• Citation: 610 N.W.2d 571,240 Mich. App. 29
• Decision Date: 22 May 2000
• Docket Number: Docket No. 207303.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lamphone THENGHKAM, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

610 N.W.2d 571

240 Mich. App. 29

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Lamphone THENGHKAM, Defendant-Appellee.

Docket No. 207303.

Court of Appeals of Michigan.

Submitted September 14, 1999, at Detroit.

Decided February 29, 2000, at 9:10 a.m.

Released for Publication May 22, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Douglas P. Dwyer, Assistant Prosecuting Attorney, for the people.

James Krogsrud, Detroit, for the defendant.

Before: WHITBECK, P.J., and SAAD and HOEKSTRA, JJ.

WHITBECK, P.J.

I. Introduction

Defendant Lamphone Thenghkam pleaded guilty of second-degree murder, M.C.L. § 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2), crimes he committed at the age of sixteen. The trial court originally sentenced¹ him as a juvenile.² The prosecutor appealed, and this Court reversed and remanded for "reconsideration concerning whether defendant should be sentenced as an adult or a juvenile." People v. Thenghkam, unpublished opinion per curiam of the Court of Appeals, issued June 13, 1997 (Docket No. 182588). The trial court, on remand, again sentenced Thenghkam as a juvenile.

II. Nature Of The Instant Appeal

The prosecutor now appeals for the second time, contending that the trial court misconstrued its duty on remand as simply reconsidering its earlier findings and decisions rather than addressing the question of sentencing anew. Therefore, the prosecutor asks this Court to order the trial court to resentence Thenghkam again.

Thenghkam, however, argues that the trial court's findings on each of the statutory factors, M.C.L. § 769.1(3); MSA 28.1072(3), relevant to the decision whether to sentence him as a juvenile or adult on remand were not clearly erroneous. Accordingly, he contends, there are no grounds to support resentencing for a second time. Thenghkam further argues that remand for a second resentencing would violate his constitutional right to due process of law and his right to be free from multiple punishments for the same offense under the aegis of double jeopardy.

III. Factual Background

This Court summarized the facts underlying this case in its previous, unpublished opinion:

[D]efendant and four friends were walking in defendant's neighborhood at approximately 9:00 p.m. on October 15, 1993. Three young men, including the decedent [Darryl Woodard, Jr.], were approaching defendant's group from the opposite direction. A member of defendant's group shouted at the decedent's group. There was no response after which another member of defendant's group shouted at the decedent's group. Defendant then drew his rifle and fired. Six bullets struck the decedent in the back, killing him.[³] The decedent was unarmed and eyewitnesses reported that the decedent was running away when defendant shot him.

Defendant reported that he previously had been shot at in his neighborhood and that he feared being shot. He had been carrying a two-foot-long rifle in his pants for about a week before the shooting. Defendant claimed that during this incident one of the young men in the decedent's group pointed a shiny object towards him that he thought was a gun. Defendant explained that he was not aiming at the decedent and the others but just pulled the trigger to scare them away and started running.

* * *

At defendant's dispositional hearing, four individuals testified regarding the propriety of adult or juvenile placement. These included: (1) Gloria Singleton, a DSS/FIA social worker; (2) Deborah Starr, a clinical psychologist; (3) Ardyn Early, the presentence investigator; and (4) Anthony Keeling, the Recorder's Court Psychiatric Clinic examiner. Singleton and Starr recommended that the court sentence defendant as a juvenile; Early and Keeling recommended an adult sentence for defendant.

Singleton noted that defendant had over 250 absences from school; nonetheless, he obtained passing grades in all courses because he is a "smart kid." Also relevant to Singleton was the fact that defendant had conformed to routines at the youth home, except for one small altercation when he was first admitted. At home, defendant did not cause problems and worked to help support the family. Defendant's employer praised him as a quiet young man with good manners. Starr believed that the homicide was an "isolated incident." She did not believe that defendant posed a danger to society. She stated that defendant's behavior was indicative of the neighborhood, which was dangerous and plagued by gangs. Starr felt that the juvenile system could provide defendant with supervision, education, therapy and coping skills. Starr thus concluded that defendant should be sentenced as a juvenile.

In contrast, Early recommended an adult sentence because defendant shot the victim in the back as the victim turned to run. Early opined that defendant displayed a callous disregard for human life. Early acknowledged, however, that defendant would not disrupt the rehabilitation of others at the juvenile facility. In her opinion, defendant did not pose a danger to the community; nevertheless, she advised sentencing as an adult given the seriousness of the crime. Keeling felt that defendant lacked good judgment and decision-making skills. Keeling characterized defendant as having a behavior problem and as being rebellious. Keeling speculated that defendant might be involved in gang activity; however, the youth bureau had no knowledge of an Asian gang in defendant's neighborhood. Keeling felt that defendant was intelligent, but associated with people who got into trouble, and had difficulty accepting authority. Thus, Keeling concluded that defendant should be sentenced as an adult.

According to Thenghkam's brief, in June 1998, he reached twenty-one years of age and the juvenile authorities discharged him from their custody.

IV. Legal Context: Trying And Sentencing Minor Defendants

A. Introduction

Trying and sentencing minors for criminal offenses has long been a controversial issue.⁴ Notoriety surrounding a number of recent cases involving criminal offenses by individuals under age eighteen has heightened the debate over the wisdom or necessity of applying the laws and criminal procedure designed for adults to people whose families, much of society, and certainly the law consider them children.⁵ Therefore, in order to set the context for our decision in this appeal, we think it is provident to outline the various options Michigan courts have for trying and sentencing minors who commit criminal offenses.

B. Family Court Jurisdiction

Ordinarily, the family division of the circuit court (family court), formerly the probate court, exercises jurisdiction over individuals seventeen years old and younger. MCL 712A.2(a)(1); MSA 27.3178(598.2)(a)(1). The unique feature of the family court is the civil, and not criminal, nature of its proceedings, known as adjudications. MCL 712A.1(2); MSA 27.3178(598.1)(2). If a juvenile commits a crime and through an adjudication is determined to be within the family court's jurisdiction,⁶ then the family court has broad authority to sentence the juvenile in a manner that best suits the juvenile and society's interests. MCL 712A.1(3); MSA 27.3178(598.1)(3), M.C.L. § 712A.18; MSA 27.3178(598.18); MCR 5.943(E). In keeping with the civil nature of the adjudication, juvenile sentences, known as dispositions, can range from a warning, fine, or community service, to placement in an institution or boot camp. MCL 712A.18; MSA 27. 3178(598.18). Those sentences, however, terminate automatically once the juvenile turns eighteen years old, or in some circumstances, twenty-one years old. MCL 712A.5; MSA 27.3178(598.5), M.C.L. § 712A.2a; MSA 27.3178(598.2a).

C. Traditional Waiver

If, however, the minor is over age fourteen⁷ when charged with conduct amounting to a felony had the minor been an adult, the prosecutor has the discretion to ask the family court to waive its jurisdiction over the juvenile. MCL 712A.4(1); MSA 27.3178(598.4)(1); see also MCR 5.950; People v. Hana, 443 Mich. 202, 504 N.W.2d 166 (1993) (there is no constitutional right to be treated as a juvenile and differently from adults). The family court, after it conducts a hearing, must determine if there is probable cause to believe that the juvenile committed a felony and whether the facts pertinent to each statutory factor weigh in favor of a juvenile adjudication or an adult trial.⁸ See M.C.L. § 712A.4(4); MSA 27.3178(598.4)(4) (statutory factors include seriousness of offense, juvenile's culpability in the charged offense, prior record of delinquency, willingness to participate in programming, adequacy of punishment or programs available in juvenile system, and the dispositions available); Hana, supra at 221-224, 504 N.W.2d 166 (requirements for waiver hearing). If the juvenile has ever been subject to the jurisdiction of a circuit court or the former recorder's court, the family court must waive jurisdiction.⁹ MCL 712A.4(5); MSA 27.3178(598.4)(5). A juvenile convicted of an offense in the circuit court pursuant to this waiver provision must be sentenced in accordance with M.C.L. § 769.1(3); MSA 28.1072(3), which permits the court to impose an adult or juvenile sentence¹⁰ on the basis of findings relevant to explicit criteria and the way the court weighs those findings. See also MCR 6.931.

D. Automatic Waiver

The prosecutor, alone, has the discretion to decide to charge and try a juvenile, age fourteen or older, as an adult for a select group of seventeen¹¹ specified offenses, along with any lesser included offenses, or the crimes of attempt, conspiracy, or solicitation to commit those enumerated offenses; generally speaking, these enumerated offenses are among the most serious acts made criminal under Michigan law, such as murder and carjacking. MCL 764.1f; MSA 28.860(6); ...