PEOPLE V ACKAH-ESSIEN
Docket No. 317411
Court of Appeals of Michigan
Decided June 4, 2015
311 Mich App 13
Submitted January 6, 2015, at Grand Rapids. Leave to appeal denied 498 Mich 921.
The Court of Appeals held:
1. At the time of defendant‘s crime,
2. The Michigan and United States Constitutions preclude the prosecution from making repeated attempts to convict a defendant for the same offense. If a trial is concluded prematurely after jeopardy has attached, a retrial for the same offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of manifest necessity. The decision to declare a mistrial after a finding of manifest necessity because of a deadlocked jury is entrusted to the sound discretion of the trial court. In this case, there was nothing in the record to suggest that the trial court abused its broad discretion by determining that manifest necessity required the declaration of a mistrial because the first jury was unable to reach a unanimous verdict in the case. After learning that the jury was having difficulty reaching agreement, the trial court read the “deadlocked jury” instruction and required the jury to continue deliberations. After further deliberations, the jury again indicated that it was unable to reach a verdict. Under the circumstances, with no objection by either party, the trial court‘s declaration of a mistrial in defendant‘s first trial was a proper exercise of judicial discretion. Defendant‘s retrial, therefore, did not constitute a constitutionally impermissible successive prosecution.
3. Offense Variable (OV) 10,
4. OV 14,
Defendant‘s conviction and sentence for carrying a dangerous weapon with unlawful intent vacated; all other convictions and sentences affirmed; case remanded for entry of an amended judgment of sentence.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Victor A. Fitz, Prosecuting Attorney, and Elizabeth M. Rivard, Assistant Attorney General, for the people.
Michael A. Faraone PC (by Michael A. Faraone) for defendant.
Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.
MARKEY, J. Defendant appeals by right his convictions, following a jury trial, of conspiracy to commit armed robbery,
I. FACTUAL SUMMARY
Defendant‘s convictions arise out of the robbery of a 21-year-old pizza delivery driver. Four young men had conspired to commit the crime by having a female friend place an order for food to be delivered to an abandoned house. The trial resulting in defendant‘s convictions was his second; defendant‘s first trial resulted in the trial court declaring a mistrial when the jury was unable to reach a verdict.
The testimony at trial showed Michael Smith and Anteyon Russell were identified from their clothing as two of three or four black males that a citizen had observed near the scene of the crime. Russell pleaded guilty to conspiracy to commit armed robbery and several other crimes as part of an agreement for his truthful testimony against defendant in the instant case. Detective Dan Wiggins obtained the fingerprints of Smith and Martrell Jones from pizza boxes he located during the criminal investigation. Jones entered into a guilty plea on multiple charges for the armed robbery of the victim as part of a plea agreement for the dismissal of certain charged offenses in exchange for his truthful testimony against defendant in the instant case.
Anteyon Russell testified that after defendant, Smith, and Jones got to Dowagiac, defendant, an acquaintance of Anteyon, but not a friend, suggested the idea of committing an armed robbery. According to Anteyon, defendant said he had done “home delivery robberies” of pizza delivery men in Wisconsin. Rolandis Russell is the older brother of Anteyon. Anteyon had been in the company of Smith, Jones, and defendant a few days before the robbery. Rolandis heard defendant suggest a robbery, but Rolandis declined to participate.
Jones testified that defendant, Anteyon, and Smith smoked marijuana and played basketball the morning of the robbery. Defendant suggested they commit an armed robbery, as he had done the day before. Jones first declined, but defendant said that he needed money to get back to Chicago. Defendant specifically suggested robbing a delivery person. Smith testified for defendant, and claimed that sometime later, while he and the codefendants were playing inside Williams‘s house with a rifle-type BB or pellet gun, they shot out the glass on a stove with it. Williams asked them to leave his home as a consequence.
Jones testified that Anteyon went to his grandmother‘s house to change his clothes and get a BB gun, which looked like a “[h]andgun.” Someone suggested they call Pizza Hut, and defendant called his girlfriend to have her do so, instructing her to ” get a lot of pizzas,” and giving her an address for the delivery. The group then walked to the vacant house they had earlier selected to wait and plan “who was gonna do what....” Defendant, who asked to be called “Pistol” according to Anteyon, elected to hold the gun to the victim‘s face, while Smith held the victim and Anteyon went through his pockets. Jones agreed to take the victim‘s car and be the driver.
Anteyon further testified that when car lights appeared from down the street, Jones went out the back sliding door; defendant and Smith went outside to the front, and Anteyon waited inside the house. Defendant was to initiate the robbery by signaling with the words, “‘Dad, the pizza man here [sic].’ ” Anteyon heard the
Anteyon testified that after the robbery, the four men got into the victim‘s car and drove off in it, with Jones driving as planned. They drove through a cornfield and stopped along the way near a railroad viaduct so Anteyon could throw the victim‘s cellular telephone out the car window, fearing its GPS tracking device. He also disposed of a Nintendo DS game. Defendant never gave Anteyon his gun back, which Anteyon last saw when defendant was brandishing it during the crime. According to Anteyon, defendant tried to remove the license plate from the victim‘s car because he wanted to take the car back to Chicago.
Jones testified that defendant originally wanted to drive back to Chicago, but Jones did not know how to drive. As they were making their escape, Jones slowed, and Anteyon threw the victim‘s cellular telephone out the window. They proceeded through a field before taking a laptop computer from the back seat and abandoning the car. Defendant and the group divided the money, ate pizza and recapped the crime. Anteyon testified that the four men split the victim‘s cash equally, ate pizza, boasted about their roles in the crime and how “we got away with it[.]” Later, Rolandis
Smith, a childhood friend of Anteyon‘s from Dowagiac who had moved to Chicago, testified for the defense that he had contacted Anteyon in advance to make arrangements to get together while Smith was in town. Smith also testified that he, Jones, and Anteyon planned the robbery of the victim. Smith testified that he had pleaded guilty to his involvement in the robbery and that defendant was not involved in either the planning or commission of the robbery. During cross-examination, Smith admitted that during the course of the investigation, he told the police on two separate occasions that defendant was involved in the robbery and told them that defendant pointed the gun at the victim. While during defendant‘s trial Smith denied that a gun was used in the crime, when Smith entered his own guilty plea he had testified that “[a] pellet gun, BB gun,” was used in the crime.
Defendant testified that contrary to the rendition of events by Anteyon and Jones, after the basketball activity, he left by himself and went to Louis Thomas‘s apartment. When he arrived there at 7:00 p.m., no one was home. He watched movies and a basketball game alone, until Jones, Smith, and Anteyon arrived about 10:00 p.m. Defendant was surprised to see they had
The jury convicted defendant of the crimes listed at the start of this opinion, and the trial court sentenced defendant as noted. Defendant now appeals by right his convictions and sentences.
II. MCL 750.226 —BB GUN
Defendant first argues that his conviction for carrying a weapon with unlawful intent,
A. STANDARD OF REVIEW
Issues of statutory interpretation present questions of law that are reviewed de novo. People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). But where, as here, a claim of error is not preserved, we consider whether plain error affected defendant‘s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Plain error affects a defendant‘s
B. ANALYSIS
The information alleged that on or about April 4, 2012, defendant “did, with intent to use the same unlawfully against the person of another, go armed with a pellet gun; contrary to
Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, shall be guilty of a felony... [Emphasis added.]2
This Court recently reviewed the elements necessary to sustain a conviction of carrying a dangerous weapon with unlawful intent under
The primary goal when construing a statute is to give effect to the Legislature‘s intent. Id.; Mitchell, 301 Mich App at 291. The most reliable source regarding the Legislature‘s intent is the language used in the statute. Cole, 491 Mich at 330; Mitchell, 301 Mich App at 291. When the statutory language is plain and unambiguous, the Legislature‘s intent is clearly expressed, and judicial construction is neither permitted nor required. Cole, 491 Mich at 330; Mitchell, 301 Mich App at 291. In
We first review the plain and ordinary meaning of the words used in the phrase “or any other dangerous or deadly weapon or instrument....”
Our primary goal in reading the statute is to effectuate the intent of the Legislature and enforce its clear statutory language in light of the purpose of the statute. Feezel, 486 Mich at 205 (opinion by CAVANAGH, J.); Mitchell, 301 Mich App at 291. In construing the related
Another “general rule of statutory construction is that the Legislature is ‘presumed to know of and legislate in harmony with existing laws.‘” People v Cash, 419 Mich 230, 241; 351 NW2d 822 (1984) (citation omitted). Since at least the enactment of 1992 PA 217, pertinent to the firearms chapter of the Michigan Penal Code, which contains
The word “firearm“, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun
designed and manufactured exclusively for propelling BB‘s not exceeding .177 calibre by means of spring, gas or air. [ MCL 8.3t , as added by 1959 PA 189.]
Because the Legislature has excluded through both
We next consider whether there was sufficient evidence to sustain defendant‘s conviction under
In applying this deferential review standard, we conclude the evidence shows that defendant went from one place to another while possessing a handgun-style BB gun with the intent to use the weapon unlawfully against another person. See Mitchell, 301 Mich App at 293. The prosecution argues that the BB gun defendant used was a dangerous weapon per se because before the robbery it was used to shoot out the glass of a stove. But as discussed already, that reading of the record is not accurate; the testimony showed it was a long, rifle-type BB or pellet gun that shot out the glass of Williams‘s stove. In this case, as in Parker, the prosecution presented no evidence that the BB gun in question was a dangerous weapon per se. Instead, the record shows that the weapon defendant used was a handgun-style BB gun. There was no evidence presented at trial that the handgun-style BB gun defendant used in the robbery was anything other than “a smooth bore... handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BB‘s not exceeding .177 caliber.”
Defendant next argues that because his first trial ended without his consent and manifest necessity did not support a mistrial, his second trial violated the Double Jeopardy Clause of the United States Constitution. The prosecution asserts the requisite manifest necessity supported the trial court‘s decision to declare a mistrial because the jury in defendant‘s first trial remained deadlocked after several hours of deliberation and after receiving the deadlocked-jury instruction. We conclude that defendant‘s retrial, following the trial court‘s declaration of a mistrial in his first trial, did not violate the successive-prosecutions protections of the Double Jeopardy Clause.
A. PRESERVATION
To preserve appellate review of a double jeopardy violation, a defendant must object at the trial court level. People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005). Defendant did not object to the trial court‘s decision to declare a mistrial at the time that it did so, or during defendant‘s second trial; consequently, his double jeopardy claim is unpreserved. Id.; People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).
B. STANDARD OF REVIEW
A double jeopardy challenge presents a question of constitutional law reviewed de novo on appeal. People v Ream, 481 Mich 223, 226; 750 NW2d 536 (2008). In this case, the unpreserved double jeopardy claim is reviewed for plain error affecting the defendant‘s substantial rights. Meshell, 265 Mich App at 628. Reversal is warranted only if the error resulted in a conviction
The decision to declare a mistrial after a finding of manifest necessity because of a deadlocked jury is entrusted to the ” ‘sound discretion‘” of the trial court. People v Lett, 466 Mich 206, 216-217; 644 NW2d 743 (2002), quoting United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824). On appeal, the trial court‘s decision to declare a mistrial because of a deadlocked jury must be afforded great deference. Id. at 213, 219-220, citing Arizona v Washington, 434 US 497, 510; 98 S Ct 824; 54 L Ed 2d 717 (1978). “The issue is not whether this Court would have found manifest necessity, but whether the trial court abused its discretion in finding manifest necessity.” Lett, 466 Mich at 220. A reviewing court will generally defer to the trial court‘s determination that the jury is deadlocked because that court is in the best position to assess all factors that might affect whether the jury would be able to reach a verdict on further deliberation. Renico v Lett, 559 US 766, 772, 774; 130 S Ct 1855; 176 L Ed 2d 678 (2010).
C. ANALYSIS
The United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense.
Generally, jeopardy attaches in a jury trial once the jury is empaneled and sworn. People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). Once jeopardy attaches, the defendant has a constitutional right to have his or her case completed and decided by that tribunal. People v Henry, 248 Mich App 313, 318; 639 NW2d 285 (2001). “If the trial is concluded prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a mistrial was declared because of a manifest necessity.” Mehall, 454 Mich at 4. A jury‘s inability to reach a unanimous verdict is one circumstance that constitutes a manifest necessity permitting retrial. Id. Indeed, a “hung jury” is the “prototypical example” of a situation when the “manifest necessity” standard is satisfied with respect to granting a mistrial and permitting retrial. Lett, 466 Mich at 217 (quotation marks omitted), quoting Oregon v Kennedy, 456 US 667, 672; 102 S Ct 2083; 72 L Ed 2d 416 (1982). “Necessarily intertwined with the constitutional [double jeopardy] issue... is the threshold issue whether the trial court properly declared a mistrial.” Lett, 466 Mich at 213.
Defendant‘s first jury trial began with jury selection on December 11, 2012, and continued for the next three days with the attorneys’ opening statements, the testimony of witnesses, the attorneys’ closing arguments, and the trial court‘s instructions to the jury. The jury began deliberations on December 13, 2012, at approximately 3:48 p.m. After the jury deliberated that afternoon without having reached a verdict, the trial court
After a lunch break and further deliberations, the trial court received another communication from the jury. The jury returned to the courtroom at approximately 2:59 p.m., and the trial court again addressed them:
Members of the jury, the Court has received your most recent communication and it reads as follows: “We are unable to reach a verdict.” In light of that and considering the length of time you have spent in deliberations, and the earlier instruction that the Court gave to you after you initially reported that you were unable to reach a verdict, I do hereby declare a mistrial in this case. I thank you, very much, for your jury service. This jury is discharged.
The jury was discharged without any further remark appearing on the record. Defense counsel did not object or further comment in response to the trial court‘s
Defendant argues that the trial court abused its discretion by not considering reasonable alternatives before sua sponte declaring a mistrial and that the court should have made findings on the record showing that no reasonable alternative to declaring a mistrial existed. This argument is without merit as neither our Supreme Court nor the United States Supreme Court has ever required that a trial court follow a particular procedure, consider alternatives to a mistrial, or make record findings before declaring a mistrial on the basis that a jury is unable to reach a unanimous verdict. See Lett, 466 Mich at 221 (“[T]his Court has never required an examination of alternatives before a trial judge declares a mistrial on the basis of jury deadlock; nor have we ever required that the judge conduct a ‘manifest necessity’ hearing or make findings on the record.“). And the United States Supreme Court has stated:
We have expressly declined to require the “mechanical application” of any “rigid formula” when trial judges decide whether jury deadlock warrants a mistrial. We have also explicitly held that a trial judge declaring a mistrial is not required to make explicit findings of ” ‘manifest necessity‘” nor to “articulate on the record all the factors which informed the deliberate exercise of his discretion.” And we have never required a trial judge, before declaring a mistrial based on jury deadlock, to force the jury to deliberate for a minimum period of time, to question the jurors individually, to consult with (or obtain the consent of) either the prosecutor or defense counsel, to issue a supplemental jury instruction, or to consider any other means of breaking the impasse. [Renico, 559 US at 775 (citations omitted).]
There is nothing in this record to suggest that the trial court abused its broad discretion in determining
IV. SENTENCING ISSUES
Defendant next argues that the trial court erred by scoring Offense Variable (OV) 10 at 15 points because “predatory conduct” was not involved and also erred by scoring OV 14 at 10 points because defendant was not a leader in a multiple-offender situation. Because defendant timely objected to the scoring of OV 10 and OV 14 and the trial court heard and decided the
A. STANDARD OF REVIEW
Our review of a sentence imposed under the statutory guidelines is limited to determining whether the sentence was imposed within the appropriate guidelines range and, if not, whether the trial court based its departure from the recommended range upon an articulated substantial and compelling reason.
B. ANALYSIS
The preponderance of the evidence in the record supports the trial court‘s assessment of 15 points under OV 10 for predatory conduct in the exploitation of a vulnerable victim,
OV 10 of the sentencing guidelines addresses the exploitation of a vulnerable victim.
The record contains more than ample evidence to support the trial court‘s scoring of OV 10 at 15 points on the basis of defendant‘s predatory planning and
OV 14 of the sentencing guidelines addresses the offender‘s role in the offense.
A “multiple offender situation” is one in which more than one person—up to several or many persons—participates in a violation of the law. People v Jones, 299 Mich App 284, 287; 829 NW2d 350 (2013), vacated
While defendant argues that the trial court erred by assessing 10 points for OV 14, we find that a preponderance of the evidence in the record supports the trial court‘s scoring. See Hardy, 494 Mich at 438. There was testimony that defendant paid Smith‘s travel expenses from Chicago to Dowagiac. Both Anteyon and Jones testified that it was defendant who first expressed the idea of committing an armed robbery when defendant told them he had done “home delivery robberies” of pizza delivery men in Wisconsin. When Jones protested that he “didn‘t come out here for that,” defendant refused to take no for an answer and insisted that “we need to get this money” in order to return to Chicago. Rolandis also testified he heard defendant suggest a robbery, but that he declined to participate. Testimony showed it was defendant who selected Pizza Hut and directed a female friend to place the false order for him, giving her the address to the abandoned house where the crime was to take place. Defendant initiated the robbery by signaling with the words, “Dad, the pizza man here [sic].” Defendant also directed the group to call him “Pistol,” and it was he who held the BB gun to the victim‘s face during the robbery. Given this evidence, the trial court did not clearly err by assessing 10 points for OV 14.
In summary, the preponderance of the evidence in the record supports the trial court‘s assessment of 15 points for OV 10 and 10 points for OV 14.4 See Hardy,
We affirm all defendant‘s convictions and sentences except that for carrying a dangerous weapon with unlawful intent,
RIORDAN, P.J., and WILDER, J., concurred with MARKEY, J.