People v. Toma

• Decision Date: 28 June 2000
• Docket Number: Docket No. 112860, Calendar No. 8.
• Citation: 613 N.W.2d 694,462 Mich. 281
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Adil TOMA, Defendant-Appellee.
• Court: Michigan Supreme Court

613 N.W.2d 694

462 Mich. 281

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Adil TOMA, Defendant-Appellee.

Docket No. 112860, Calendar No. 8.

Supreme Court of Michigan.

Argued November 9, 1999.

Decided June 28, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Daniel Lemisch, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, Pontiac, for the people.

State Appellate Defender (by Susan J. Smith), Detroit, for defendant-appellee.

Elwood Brown, President, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, for amicus curiae Prosecuting Attorneys Association of Michigan.

MARKMAN, J.

Following a jury trial, defendant was convicted of first-degree felony murder, M.C.L. § 750.316(1)(b); MSA 28.548(1)(b), and possession of a firearm during the commission of a felony (felony-firearm), M.C.L. § 750.227b; MSA 28.424(2).¹ The Court of Appeals affirmed the trial court's reversal of defendant's convictions, agreeing that defendant had been denied the effective assistance of counsel. The Court of Appeals also found that the admission of testimony regarding statements made by defendant to a forensic psychologist in contemplation of interposing an insanity defense was error requiring reversal. We hold that any error stemming from the introduction of defendant's statements to the forensic psychologist was harmless and that defendant was not denied his constitutional right to the effective assistance of counsel. Consequently, we reverse the judgment of the Court of Appeals.

I

Defendant's convictions arose from events that occurred sometime around 10:30 p.m. on the night of November 29, 1993, when Steve Burge was shot in the face and doused with gasoline at the front door of a residence he shared with Margo DeVita (now known as Margo McPherson) and her two children. Margo² testified that she had temporarily cohabited with defendant on two prior occasions under circumstances that she described as platonic. However, during the second of these periods, which lasted about a month, defendant began making unwelcome sexual overtures, and personal items went missing from Margo's bedroom. After an incident when defendant tried to imprison Margo in his house, she moved in with her mother until she was able to lease a unit in a duplex house. Steve, Margo's boyfriend, later moved in with her. In the months before the killing, Margo observed defendant drive past this house on numerous occasions, and, once, defendant stopped in and offered to pay Margo's rent if Steve would move out.

Margo testified that on the night of November 29, 1993, someone kicked the front door open while she was half-asleep on the couch and Steve was watching football on television. Margo ran to her children in another room, and later came out to find Steve stumbling back through the front door, dripping with gasoline and bleeding profusely from a gunshot wound to the cheek. Through the window, Margo saw a man of defendant's build, wearing a mask and light colored surgical gloves, struggle with her neighbor, Danny Parenteau, and then run away. After Steve was transported to the hospital, Margo observed an unfamiliar hat with hair attached to it in her living room, a gas can in front of her house, and a mask near the gas can. She reported to the police her suspicions that defendant was the assailant.

Danny Parenteau testified that on the night in question, he was watching football on television when he heard a gunshot from the house across the street. Danny ran outside and observed Steve and another man struggling inside the front door of Steve's house. Steve forced the other man out of the house, and, when Danny approached to assist, he noted that Steve was covered with blood. As Steve collapsed, he shoved the other man away. Danny realized that this other man, who had also fallen to the ground, was armed with a gun, so Danny seized this man's wrist and called to his brother, Russell, for help. The man smelled of gasoline, was wearing white, see-through gloves, and fired off several shots that Danny was able to direct away from himself. Russell came to help, but took cover behind a tree when the assailant shot toward him. As this was occurring, Danny observed Steve get back up, while holding his throat, and make it through his front door before again collapsing.

Danny tried to drag or carry the armed man, but when Danny stumbled and lost his grip, he ran for cover for fear of being shot. The man was not wearing a mask at this point and he ran to a car, which Danny recognized as one that he had observed cruise past Margo's house on four or five occasions. Danny was able to identify defendant at a police lineup as the man with whom he had struggled. Russell Parenteau, who lived with Danny, corroborated his brother's account and added that the assailant ran to a car that was parked next to the home of another neighbor, John Talarico.

John Talarico testified that he lived next door to Steve and Margo and that, on the night in question, he heard gunshots just after he got out of the shower, so he looked out his window and saw a gunman wrestle with Danny and shoot toward Russell. From a distance of fifty feet, John observed the gunman's face and identified him as defendant. Defendant departed in a car that John recognized as one that he had observed cruise slowly by on several occasions, once with its lights out. Donald Lumm, a neighbor who lived around the corner from Margo and Steve, testified that on the night of November 29, 1993, he was in his kitchen when he heard several shots. Donald then heard squealing tires and, through his kitchen window, saw a vehicle "take off really quick." Donald identified a photograph of defendant's car as the one he saw that night.

Steve died from what was determined to be a single gunshot wound to the right side of his jaw, with the bullet traveling down through his neck. From the scene, the police recovered: a white towel soaked in gasoline, a hat with a wig sewn to it, several .38 caliber bullet casings, a mask found between the sidewalk and curb, and a fingertip from a "rubber" glove. The front screen door was broken outward and covered with blood, but there was no visible damage to the interior door. There was also blood outside the house, around the door area and on the grass. A subsequent search of defendant's house turned up a large quantity of the type of gloves used by meat packers.³ Hairs were retrieved from the mask and hat, which were later determined to be similar in all respects to a sample of defendant's hair. Fingerprints recovered from tape attached to the mask were later determined to be those of defendant.

The police began staking out defendant's house on the night of the killing, and defendant was stopped in his automobile and taken into custody at 7:30 a.m. the following morning. The officers detected a strong smell of gasoline from defendant's vehicle and hat. After an attempted arraignment, where there was some discussion regarding count five in the multiple count warrant, defendant was overheard to make the following unsolicited statement: "They count five. They say I killed five people. I only kill one. Why do they count five now?"

Defendant, whose native language is Arabic, testified at trial through an interpreter, although he frequently answered questions in English. His testimony described his relationship with Margo, during the twelve days she first lived with him as that of a husband and wife, just as it was when she again stayed with him. Margo allegedly began stealing from defendant and only moved out the second time after defendant assured her that he would be her boyfriend and would come to visit her everyday and pay the rent. However, when defendant came over after working late one night, he found Margo in the company of "John" and "Don." The three of them were drunk and Margo was wearing only a slip. After that, defendant stopped going to Margo's house.

According to defendant, around 3:00 p.m. on the day of the incident, Margo came to defendant's home and demanded that he sign over his house, and car to her. She also commanded him to give her all the money he had in the bank, and to vacate the house, taking only his clothes, but leaving the furniture. Defendant refused, so Margo took his car. She returned later, along with her children, in a different car, claiming that defendant's car was broken and that Steve had taken it to get it fixed. Margo drove defendant to her house, and he played with Margo's children while waiting for Steve to return with defendant's car. Margo's daughter brought a mask into the room and defendant and the children played with it.

The events that defendant next described are somewhat muddled by the circumstances that gave rise to the trial court and the Court of Appeals determinations that defendant was denied the effective assistance of counsel. Specifically, defense counsel failed to clarify who defendant was identifying as his story unfolded. Defendant mispronounced certain names, and the interpreter made certain incorrect translations of what defendant said. However, as it was told to the jury, somebody named "Cherry" arrived, then within ten minutes Steve came home and denied being in possession of defendant's car. Margo then said that John had defendant's car. Then John, Jim, and "Rose" (and apparently "Don") entered the residence, with John and "Don" being armed with what the interpreter described as "a small gunshot, black" and a shotgun. These men ordered defendant to pay a $3000 drug debt owed by Margo, and defendant tried to talk them into postponing payment until the next day. John ordered defendant to sign a piece of paper, but defendant crushed it and threw it back in John's face.

The jury heard that John drew his gun while Margo yelled "kill him outside." Steve tried to...