People v. Carson

SPECIAL ORDERS (other grants of the court In this section are orders Appeals) appeal of leave Court of and denials general and bar of the state. interest the bench Entered, 14, June 1996: Order special shall orders that No. 159501.The Court Carson, pursuant to Administrative Order No. 1996-4 resolve

be convened (After Remand), 213 Mich between this and conflict 89, 4, opinion in case released June Court further orders that the The 1996, hereby vacated. days may supplemental appellant clerk’s file a brief within 28 The supplemental Appellee brief within 21 of this order. file certification days appellant’s copies Nine must be filed with service of brief. the Court. Clerk of PEOPLE v CARSON vacated June No. 159501. Released June 9:20 A.M.; Docket 1996. P.J., P. and and J. JJ. Taylor Before: Jansen, Noecker,* appeals right his convictions of J. Defendant as of trial Taylor, 28.284, armed, 750.89; MCL MSA and with intent to rob while assault bodily murder, great harm MCL with intent to commit less than assault 750.84; pleaded being subsequently guilty MSA 28.279. Defendant 769.10; offender, offense, 28.1082. Defendant second MSA habitual prison of assault with life in for the conviction was sentenced rob, ten to for the conviction of assault with intent to and fifteen bodily great We affirm convictions and commit harm. intent to bodily intent commit for the conviction of assault with sentence resentencing the conviction of less than murder and remand for with intent to rob while armed. assault February 24, 1992, approached vic- on about 12:30 am. At directions, put asking parking a knife to lot. After tim in a up money. the victim throat and demanded Defendant backed the victim’s pants. pushed began against trying to undo her The victim a truck and punched footing the victim the defendant back. Defendant lost crouching stabbed her fell down when defendant The victim face. days away. spending four ran victim recovered after the back and The hospital.Defendant will first dis- claims of error. We raises several dispose requires resentencing and of the remain- cuss the claim ing issues. sitting Appeals by assignment. judge, Court of on the *Circuit Opinion argues parolable life Defendant that his sentence for the conviction of disproportionate.1 assault with intent to rob while armed is He notes that sentence for this recommended under twenty years, eight offense is states that his beyond range. guidelines’ far recommended minimum subject argues although he will become reality parole years,2 board after ten the is that most sentenced parolable prison. to are life never released from opinions parolable conflicting reviewing has issued This Court life People App 412; Lindsey, (1984), sentences. In v Mich 304 139 362 NW2d McNeal, 379; People App panels (1986), v 156 Mich 401 NW2d 650 thirty sixty thirty-five seventy Court held sentences of to to parolable though were lesser sentences than life a parolable permit parole. life sentence would earlier for consideration People (After 160; Remand), App (1988), v Hurst 169 425 NW2d 752 forty- eighty-year another this Court that a concluded sentence parolable was more severe life sentence because a defendant serv- ing parolable parole years. eligible a life for sentence was after ten In Peo- ple App 805, 811; Houghteling, (1990), panel v 183 Mich a 440 parolable sentencing of this Court reviewed a guidelines’ range life the sentence where years. had been twelve to fifteen stated The Court that a parolable conscience, noting life sentence did not shock eligible years. parole the defendant would be after for ten The Court then parolable “may actually quite stated that the life lenient.” sentence be Id. People Gilbert, App 741, 750-751; at 811. In v 183 Mich 455 NW2d 731 (1990), parolable sentencing this Court reviewed a life sentence twenty guidelines’ years. was ten to The Court noted that the eligible parole serving defendant would for after and con- ten that, compared guidelines’ range, parolable cluded a was not or excessive. However, Houghteling used Courts and Gilbert rejected People Shell, App 160, 161; (1993), v 200 Mich 503 NW2d 711 parolable where the Court stated that a life sentence is not be consid- guidelines merely ered within the time at which the defend- eligible parole point guide- ant becomes for coincides with a within the Also, People Biggs, App 450, 456; lines. v 202 Mich 509 803 (1993), panel accepted prosecutor’s of this Court concession that the imposing parolable trial court had erred in life sentence under the mis- impression taken gible that such a life sentence would make the defendant eli- parole Biggs sooner than a This statement directly by People Legree, App 141-142; contradicted 441 fifteen-year challenge Defendant does not ten- sentence for the and, great bodily thus, conviction of assault with intent commit we affirm sentence. 1, 1992, parole eligibility For crimes committed after October years. People Merriweather, 799, 809, 9; moved to fifteen n NW2d 460 receiving parolable a defendant (1989), stated that NW2d 433 who is sentenced eligible parole a defendant “well before” may However, Biggs Court long-term indeterminate ato parolable life sen- considering with a fact that a defendant have been judge judge paroled or a successor if his tence between a is a difference opposes parole fact that there and the board and receiv- coining under Hurst, supra. 28.2304(6)(b); 791.234(6)(b); ing MSA People contradictory opinions in 1994-95. were issued Additional (1994), 287, 291; Rehearing), Phillips (On sixty-five years was minimum sentence that a of this Court found discretion, had been that if the sentence but added an abuse of appeared approach vindicated to be life, This have affirmed. it would People decided when the might have been (1994), and said that the 120-year sentence the 60- to life sentence than with a better off apparently our imposed. not understood Id. This was that had been Remand), (After however, dispositive, Court to be long-term App 89; held that a this Court term, sixty-year prison forty- is less sentence, such as indeterminate because, punishment life term under severe very early 1990s, through defendants few practices the late 1980s (After Love life were sentenced with Remand), distinguishing rationale, comment expanding the cited on the Lino out ninety-year prison matter, that a held for that from Merriweather parolable punishment life sentence. than a severe is also less holdings 1994-4, of Lino and Love these Order No. Under Administrative panel.3 bind this urges, conclude, required that in result, as this defendant we are As years, parole situation, eligible he for ten where he will be his current upon if, advantaged in this invariably would be success than he less is might given resentenced, be the circumstances as he well he were crime, long-term It seems somewhat to a indeterminate of his by perceive advanced self-interest to be puzzling us that he would opportunity gives first life him his this outcome because many but, resentencing, decades years, parole after it in ten Perhaps parole he is confident appearance board. before a his first before just maybe believes, lengthy, he will not be new sentence any case, we can lengthy, off. In he is somehow better is if the sentence own, of his for reasons to move in this direction he has decided conclude Nevertheless, challenge. may question that concession but not which we applica- questioning puzzled by Judge whether Lino We are Jansen’s proposition squarely stands for the ble. Lino sixty years. forty years lengthy as such term of severe than a is more way, expanding conclusion Lino’s panel Lino this so understood The Love ninety-year sentence. to a having made, help similarly we ask been cannot ourselves whether sit- inmates, by Love, uated bound law Lino of and would also see a potential long-term advantage parol- an over indeterminate sentence as they planned prisoners might, able life. Such inmates to be model distinctly probabilities parole, took a taged by view of the feel disadvan- They holding compels. might, put the conclusion that the Lino plainly, prefer parole it a situation where is a shot at to one there likely is, there is no shot at Because the Lino in its most (such Love), counterintuitive, extreme manifestation to date as in so begs question got posture. how the law into this unusual We believe problem improper that at its root can be traced to utilization of statis- past predict tical data actions the future. Court, harkening and, using dissent in Merriweather parole statistics, some law recent held as a matter that few parole it,4 eligible get life inmates will the future *and thus, penalty long-term life is more severe than a indeterminate position sent ence.5 We believe flawed because the statistics only controlling granting used in Lino are reflective of the variables period always for the studied. These variables will include the considered, being behavior of inmates as well as the board’s disposition granting parole lifers, invariably mirror, toward which will extent, policy then-sitting governor, temper to some Legislature, public opinion concerning crime, many other factors of Lino, supra As stated in at 97-98: through 1990, only prisoners serving parolable seven [F]rom paroled. prisoners serving life were sentences Of the 975 such a 1990, only paroled. prisoner only term in serving parolable two were one 1992, again life term was one

prisoner serving parolable paroled. During life term was the last fifty years, prisoners serving parolable ten actu- ally paroled place and the releases took after the served average between 15‘/2to 19‘/2 [Citations omitted.] People Moore, Lino relied on the also statement that a term of is a lesser penalty misplaced, than life. Lino’s reliance on this statement was how ever, People Kelly, because another of this held in App 8, 15-17; that Moore had been overruled supra. Kelly was issued one week before the Lino opinion and, thus, likely was issued the Lino not aware of the Kelly panel’s holding opinion. Kelly when it its issued penalty note that Moore’s statement that a lesser life is contradicted later Merriweather’s observation that receiving sentenced to life better off a 60- to 120-year disagreed Judge Kelly, Even if we as Jansen apparently does, pursuant we would be to follow bound it Administra tive Order No. 1994-4. and, obviously change quite from time to time sort. These conditions that thus, paroles granted. Indeed, look at one need will the number of so by The this. the Lino Court to understand not considered the statistics panel thirty paroles by were that the Lino show sources used same apparently Further, panel granted Lino was also from 1979 to 1981. the paroled of 1994. were in the first nine months that twelve lifers unaware analysis Accordingly, (1995). Lino of B J if the method Mich Cf. 74 case, say correct, that a in 1982 even have been were past parole frequency embarking based on statis- on an court panel likely Lino conclusion than the would have reached different tics very they least, con- had a difficult time would have in 1995. At did cluding, confidently did, panel life was effec- that as the Lino panel point used tively is not that the Lino without The here through 1981, or the first nine months or that 1979 bad statistics periods, these statistics cannot that better reference were project the future. used to into point, vali summary, then, as make the recent statistics we modest extrapolate predict impossible date, actions of future that it the sort used in Lino on the basis of statistics of will determine now variables that are a number of unknowable there Accordingly, following, as we decisions board. future have, Supreme respectfully Lino should believe the with a be better off statement Merriweather would, years, we were it not life than Love, proportionate. life sentence find defendant’s for Lino However, require Lino us to consider defendant’s as and Love ninety-year sentence, as more severe and constituted we conclude that this sentence abuse of discretion.6 urged has reach the sentenc us to this conclusion because only eight twenty years. underlying ing guidelines for offense sentencing guidelines directly apply to offender do not habitual The Cervantes, People sentences. Gatewood, justices agreeing have four Court held that Cervantes did not of this applied by analogy reviewing guidelines habitual- should not and, therefore, past precedent applying guidelines offender binding. Michigan Supreme peremptorily by analogy was The Court Gatewood, issuing an order that holds as follows: vacated Appeals holding that Court erred The (1995), majority Cervantes, of this 448 Mich 620 applied habitual on whether Cervantes, justices three held offenders. appellate apply guidelines do review of the sentences not justice on the basis habitual offenders. A fourth concurred appellate habit- should extend to view that review sentences Consequently, majority offender sentences. ual 806 also he was a fair Defendant contends that denied trial because the trial testify prosecution previously court witness to that allowed defendant prison. agree had been in We that the trial court should not have allowed testimony, trial, this but find the error that was harmless. Before the court granted prevent prison to to defendant’s motion reference record. However, during trial, testify prosecution to the court allowed a witness recognized spoken that he defendant had to him and prison gave limiting shown him identification card. The court a prison previously. instruc- regarding tion the fact that defendant have been in Allen, 558, 581; v 429 420 juries prior Court that misuse stated often evidence of convictions. See 664-665; People Robinson, 661, (1983). v also We testimony steps

find court have that the should taken to limit this to origin exclude evidence identification card fore- any possibility close that the would convict defendant because he previously prison. People Wilkins, 69; been had v 288 NW2d Nevertheless, (1980); admitting MRE 105. we find the error in this conclusively evidence was harmless. The victim identified defendant as prejudicial her assailant. Admission of this evidence did not result in a justice. 769.26; miscarriage of MCL MSA 28.1096. appoint refusing Defendant also the trial contends that erred in court expert eyewitness for him an in the witness field of identification. We disagree. refusing appoint expert The court did not abuse its discretion in an eyewitness People Hill, 95-96; identification. argument this Court reviewed a similar and concluded requiring that the trial court had not committed error reversal exclud- testimony ing expert process regarding people perceive pretrial procedures remember events and how identification can affect process. We this in Hill and find agreed appellate review of habitual-offender sentences using inappropriate. [People Gate wood, (1996).] 450 Mich 1021 Thus, proportionality our review of the of defendant’s sentence is made sentencing guidelines’ underly- without consideration of the for the ing conviction. We find a sentence that we must consider more severe sixty ninety years proportionate and, thus, was not an abuse of say lengthy discretion. This is not defendant does not merit a sen- merely surrounding tence remand. on find the circumstances place respect offense do not it in most serious class with crime People Houston, (1995). committed. permanently Room be left for must crimes this sort victim is disabled, mutilated, say nothing or the like. To of the fact that this defend- history, bad, present ant’s criminal while is not as severe as others who deserving themselves court with numerous felonies thus felony prior more harsh treatment than this defendant who had one Merriweather, supra conviction. at 806. Special Orders

Opinion Jansen, P.J. People Sanders, regarding this issue. See also entitled to relief 475, 507-510; 420; Rptr (1995). P2d 46 Cal 2d 751 Cal 4th expert public appointment is entitled to the A defendant safely 775.15; proceed expense cannot otherwise to trial. if he expert prevent defendant from The lack of such an MSA 28.1252. presented who, safely proceeding to trial because he alibi witnesses believed, of defendant into have called the victim’s identification argued question. Moreover, that the victim’s identification defense counsel subjected proved suggestive victim had been to a was not and that the array. photographic declining to instruct also claims that the trial court erred eyewitness jury regarding findings identifications and studies on People Anderson, contained princi- ground. We decline to reverse on this We find that the Anderson presented jury given by ples adequately in the trial instruction fact, jury instruction, 7.8, appears CJI2d was drafted to court. In that the any event, apprise opinion. the Anderson this instruction did reflect accept proper determining considerations in whether to or reject eyewitness identifications. prosecutor engaged improper ques- argues in Defendant next improper tioning argument. disagree. of witnesses and object trial, appellate did not review is limited to Because defendant any situations where a curative instruction could not have eliminated prejudice or failure to consider the issue would result in a miscar justice. 643, 687; riage Stanaway, 521 record, , US _ (1995). (1994) After a review of the we are cert den 513 any improper prosecutor engage questioning in satisfied that the assumed, cautionary argument. is we find that a instruc or Even error any perceived prejudice. at 687. tion could have cured Id. sentence for his conviction of assault with Defendant’s convictions and great bodily harm less than murder are affirmed. We intent to commit resentencing conviction of assault with intent remand to rob while armed. J., J. P. concurred. Noecker, part part). (concurring dissenting I in fol P.J. Jansen, App 89; (After Remand),

low , 1994-4, (1995) I Order No. not because am bound Administrative correctly parolable life sen I believe that Lino resolved that a majority penalty long years. Although greater than a term of tence is a majority analysis employed the statistical offers no faults Rather, majority portion relies on a alternative of its own. 799, 809; People Merriweather, a sentence contained might (1994), that a “defendant be better off with a sentence of any event, life,” holding in a defendant serv which was not a that case. ing parolable off with a sentence of life term also not be better possibility prisoners serving a of life with the life because rarely paroled. parole are ever Opinion by P.J. Jansen, People Moore, our Supreme face, penalty Court stated that its the stated for second- “[o]n (life, years degree years) murder term of indicates that term of penalty Supreme a lesser than life.” The Court further stated that there are, therefore, types judge may impose upon two of sentences that a person second-degree prison, convicted of murder —a sentence of life p Id., or a sentence of a less than life. 319. The Court held that a sentence of a term of must be an indeterminate sentence less than life and it must be sentence that the defendant has a reasonable actually possibility serving. Id., p 329; People Rushlow, accord Although People Kelly, App 8; this Court held in Supreme that the Court’s decision in Moore was overruled Supreme nothing Court said in Merriweather about overruling Supreme Moore. If the Court intended to overrule Moore and body the substantial law that has followed it in this say explicitly Court should so. nothing holding parol- There is “counterintuitive” about that a term of longer imprisonment able life is a term of term of If anything counterintuitive, something it is the that a life term is reality prisoners serving other than a life term when the is that most paroled. Further, problem term of life are never the real improper analysis, misconception these cases not an statistical but the coming actually being that paroled under the board and thing. actually entirely prospects are the same These are different serving because few life sentences are ever Merriweather, supra, pp dissenting). 813-814 (Cavanagh, C.J., Finally, question applicable I whether Lino is even to this case. In the present case, arguing possi- defendant is that his sentence of life with the bility principle proportionality. Although violates the acknowl- edging apply that the do not to habitual offender sentences, guide- defendant claims that his sentence is well outside the underlying lines’ of 96 to 240 months for the conviction of assault with intent to rob while armed. Defendant then notes that a just that, term, was, term constitutes a life and that the sentence there- fore, longest possible imposed that could be for this conviction. sentencing judge operating Defendant does not claim that the under a misconception law, pp supra, as was the Lino. See opinion regarding 98. This Court intimated no whether the defendant’s imprisonment second-degree proportion- sentence of life murder was Id., p ate in Lino. 99. Defendant claims that his sentence of a life term is possible longest sentence, because he was sentenced the offense type, possible was not the worst of its and he does not have the worst history. However, pro- criminal I would find that defendant’s sentence is portionate twenty-two years in this case. Defendant was old when he was prior felony (felonious assault), sentenced. He had one conviction a hor- juvenile (sixteen juvenile adjudications rendous according record presentence report), major and he received numerous misconducts while Special Orders Opinion by Jansen, P.J. imprisoned for his felonious assault conviction. The facts of this offense grabbed the victim her hair and held a knife to are that defendant her pinned against pickup demanding her truck after her throat. He money. grabbed began the victim her throat unbutton push away, punched pants. was able to but he her The victim away, at in her face with his fist. The victim was able to turn her in the back with his knife. time defendant stabbed her that, notwithstanding I that defendant’s life sentence is the would find principle longest possible, defendant’s sentence does not violate the proportionality People Milbourn, set forth proportion proportionality The test of is whether the sentence surrounding background of the offender and the circumstances ate to possible permitted by offense, longest not whether the sentence is the law. majority’s I with the decision to affirm defendant’s convictions concur and the sentence for his conviction assault with intent to commit bodily However, murder. I also affirm defendant’s less than for his conviction of assault with intent to rob while armed.

Case Details

Case Name: People v. Carson

Court Name: Michigan Court of Appeals

Date Published: Sep 13, 1996

Citation: 553 N.W.2d 1

Docket Number: Docket 159501

Court Abbreviation: Mich. Ct. App.