People v. Triplett

• Decision Date: 08 April 1981
• Docket Number: Docket No. 48547
• Citation: People v. Triplett, 306 N.W.2d 442, 105 Mich.App. 182 (Mich. App. 1981)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Glyn TRIPLETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 442

306 N.W.2d 442

105 Mich.App. 182

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Ronald Glyn TRIPLETT, Defendant-Appellant.

Docket No. 48547.

Court of Appeals of Michigan.

April 8, 1981.

Released for Publication June 16, 1981.

James R. Neuhard, State Appellate Defender, Kim R. Fawcett, Asst. State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., William L. Cahalan, Pros.Atty., Edward Reilly Wilson, III, Chief Appellate Asst. Pros.Atty., Paul G. Bruno, Asst. Pros.Atty., for plaintiff-appellee.

Before BRONSON, P. J., and KAUFMAN and CAVANAGH, JJ.

KAUFMAN, Judge.

Defendant was convicted in a bench trial on August 9, 1979, in the Wayne County Circuit Court of: Count I assault with intent to murder, M.C.L. § 750.83;M.S.A. § 28.278, Count II assault with intent to rob being armed, M.C.L. § 750.89;M.S.A. § 28.284, and Count III felony-firearm, M.C.L. § 750.227b;M.S.A. § 28.424(2).Defendant was sentenced on August 20, 1979, to from 17 to 35 years on Count I, from 17 to 35 years on Count II, and to two years on Count III.Defendant appeals as of right, pursuant to GCR 1963, 806.1.

Ernesto Garza testified that he owned the Eldorado Restaurant and that on October 11, 1978, at about 10:30 p.m., he was sitting in the front of the store near the cash register when someone wearing a mask and false beard entered through the front door.The intruder was carrying a .45-caliber firearm and announced a holdup.A waitress named Maria Montes was in the restaurant and ran to the back of the kitchen.Garza heard a shot in the back kitchen area, and the robber standing near him (referred to as first robber) went down the aisleway to see what happened.Garza went to the men's room in the back and lay down on the floor.Two employees were also lying on the floor at that time.The first robber asked Garza for money and Garza replied that there was no money and told him to check the cash register.Garza heard the cash register open and then heard a bell ring.Garza further testified that the waitress, Maria Montes, was bleeding from her left arm and left chest.There was a bullet hole in the men's room door.

Kenneth Barnes was the cook in the restaurant.Barnes testified that he was in the kitchen when a person came in from the rear of the restaurant and grabbed him.The man had a gun in his hand and was wearing a mask and beard.Barnes heard Maria scream and heard her run into the men's room.The second robber turned and fired the gun, hitting the door of the men's room.The robber then opened the men's room door and told Barnes to lie face down on the hallway floor.Barnes did not see the first robber but heard someone speaking to Garza.Barnes testified that Maria had been shot.

Maria Montes' testimony corroborated that of Garza and Barnes'.

John Coop lived near the restaurant.He testified that he saw two people getting into a car outside the restaurant who "looked funny".The car took off when the headlights from Coop's truck shined on it.The car had one dim taillight.Coop followed the car at 80 miles per hour.He lost sight of the car for a short time but caught up with it when the car pulled onto the shoulder of the road to go around a truck.He continued following the car until he could get the license number.Coop then went back to the restaurant and gave the license number to the police.

Detective Sexton testified that the license number given to him by Coop was WBS 161.The police checked the ownership of that vehicle and determined that it was owned by Cheryl Triplett.He further testified that the police found a .45-caliber shell casing in the restaurant.

Harry Reed, a latent print specialist, testified that he obtained prints from the housing of the cash register and from one key of the register.Reed stated that he compared the lifted prints with known fingerprints of the defendant and determined that they were the same prints.

Buckner Shahan was the officer in charge of the case.He testified that the vehicle matching the license number was a 1977 Pontiac Grand Prix.The Grand Prix was reported stolen on October 12, 1978.When the defendant was arrested on October 30, Shahan found a registration for the Grand Prix in defendant's possession.

Shahan and Sergeant Anderson testified that they interviewed the defendant shortly after his arrest.Prior to the interview, Anderson read him the police department's "pre-interview advice of rights card".Shahan testified that the defendant then said that he would talk about the charges against him.The defendant told the officers that he had participated in the robbery but that he was not the man who shot the waitress.Shahan testified that the defendant"said that he couldn't tell us who was the guy who did the shooting because he feared harm to his family and himself if he had, and that he didn't know what had happened to the car or the guns after the robbery".

Shahan further testified that the defendant asked that the questioning be stopped after the defendant had denied being the person who shot the waitress.

Sergeant Anderson testified that he was present when Shahan interviewed the defendant.Anderson stated that he advised the defendant of his rights and that defendant told him that he understood them.Anderson recalled, without looking at his notes, that the defendant had told him that he was in the restaurant but was not the man who shot the girl.He recalled defendant "saying that he was fearful for his safety or his family's safety * * * ".Anderson's notes were written after the conversation terminated.After refreshing his recollection from the notes, Anderson testified that defendant told him that he had gone in the front door and out the back door.Defendant also said that his car was used and that after the robbery the other robber dropped defendant off at his own home and left in defendant's car.

After closing arguments, the court made findings of fact and found the defendant guilty as to all three counts.

On appeal, defendant first claims that the findings of fact by the trial judge were insufficient to support defendant's conviction of assault with intent to murder.Defendant asserts that to convict a person of a specific-intent crime through the aiding and abetting statute, the trier of fact must find that the defendant either possessed the specific intent to kill or knew that the principal had such intent.Although we agree with defendant's interpretation of the law, we do not agree with his claim regarding the insufficiency of factual findings.

Assault with intent to murder is a specific-intent crime, People v. Fields, 64 Mich.App. 166, 235 N.W.2d 95(1975), citingPeople v. Phillips, 37 Mich.App. 242, 194 N.W.2d 501(1971), lv. den.386 Mich. 789(1972).Cf.People v. Johnson, 407 Mich. 196, 284 N.W.2d 718(1979), opinion of Justice Williams, noting that the Legislature has provided that specific intent is required in an assaultive crime when the crime is an assault with intent to do a prohibited activity.

The prosecution contends that assault with intent to murder can be a general intent crime because murder can be in either the first or second degree.That contention, however, is incorrect.When a defendant is charged with assault with intent to murder, whether the killing would have been murder in the first or second degree is immaterial, People v. Scott, 6 Mich. 287(1859).Assault with intent to murder is, thus, a specific-intent crime.

The aiding and abetting statute, M.C.L. § 767.39;M.S.A. § 28.979, provides:

"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."

Defendant correctly notes that to be convicted as an aider and abettor the defendant must either himself possess the required intent (in this case, specific intent) or participate while knowing that his coparticipant possessed the requisite intent.People v. Poplar, 20 Mich.App. 132, 136, 173 N.W.2d 732(1969), stated:

"Where a crime requires the existence of a specific intent, an alleged aider and abettor cannot be held as a principal unless he himself possessed the required intent or unless he aided and abetted in the perpetration of the crime knowing that the actual perpetrator had the required intent.22 C.J.S.Criminal Law § 87;21 Am.Jr.2d, Criminal Law, § 124.

" 'But it is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter equally guilty.Although the guilt of the aider and abettor is dependent upon the actor's crime, the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose.'People v. Ellhamer(1962), 199 Cal.App.2d 777, 782(18 Cal.Rptr. 905, 908)."

Either defendant's own specific intent or his knowledge that his coparticipant had the necessary specific intent may be inferred from circumstantial evidence, Fields, supra, 64 Mich.App. 174, 235 N.W.2d 95.To convict defendant as an aider and abettor in the present case, then, there must be evidence that either the defendant himself possessed the specific intent to murder or that he knew his coparticipant possessed that intent, and either intent may be inferred circumstantially.SeePeople v. Rigsby, 92 Mich.App. 95, 284 N.W.2d 499(1979), lv. den.408 Mich. 879(1980).

The final determination to be made on this issue is whether the court made sufficient findings of fact under the above standards and, if so, whether the findings were clearly erroneous.

People v. Ramsey, 89 Mich.App. 468, 473-474, 280 N.W.2d 565(1979), lv. den.407 Mich. 861(1979), detailed what findings must be made by the court:

"GCR 1963, 517.1 requir...