261 Mich. App. 463 | Mich. Ct. App. | 2004
Defendant appeals by right his convictions and sentences, after a jury trial, of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant argues that the trial court abused its discretion by admitting evidence that three days before the murder defendant possessed a weapon similar to one used in the homicide. He also contends that he must be resentenced because the trial court relied on inaccurately scored
i
Defendant first argues that the trial court abused its discretion by admitting evidence that defendant possessed a .380-caliber handgun three days before the crime. Defendant contends the evidence was not relevant, that it should have been excluded under MRE 403, and that it was evidence of another crime, but the prosecutor failed to provide the notice required by MRE 404(b)(2). We disagree.
Defendant preserved his challenge of this evidence on grounds of relevancy, unfair prejudice, and that the evidence did not meet the requirements of MRE 404(b)(1), by objecting on those grounds in the trial court. MRE 103(a)(1); People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). But defendant failed to preserve a specific objection regarding pretrial notice required by MRE 404(b)(2). MRE 103(a)(1); Aldrich, supra.
We review for a clear abuse of discretion the trial court’s decision to admit or exclude evidence. Aldrich, supra at 113. An abuse of discretion exists only if an unprejudiced person considering the facts on which the trial court acted would say that there is no justification
We review for plain error unpreserved claims of evidentiary error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To warrant reversal, defendant must establish that the plain error affected his substantial rights, meaning that the error was outcome-determinative. Id.
Evidence that defendant possessed a .380-caliber pistol three days before the crime was relevant; consequently, we conclude the trial court did not abuse its discretion by admitting it. MRE 401; MRE 402. Further, the trial court properly concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. MRE 403. Because the evidence was properly admitted, defendant cannot establish that the prosecutor’s alleged failure to comply with MRE 404(b)(2) affected his substantial rights. People v Hawkins, 245 Mich App 439, 455; 628 NW2d 105 (2001).
Generally, all relevant evidence is admissible at trial. Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the action more probable or less probable than it would be without the*467 evidence. Under this broad definition, evidence is admissible if it is helpful in throwing light on any material point. However, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. [Aldrich, supra at 114 (citations omitted).]
Here, evidence that defendant possessed a .380-caliber pistol three days before the crime was directly relevant to identifying defendant as the killer. In People v Hall, 433 Mich 573; 447 NW2d 580 (1989), our Supreme Court, in a decision that presaged the Court’s subsequent approach to MRE 404(b),
Defendant also fails to overcome his heavy burden of showing that the trial court abused its discretion by declining to exclude the testimony on the grounds that
Defendant’s argument regarding MRE 404(b) also fails. Analysis under MRE 404(b) is inapposite because the evidence that defendant possessed a .380-caliber pistol three days before the crime did not operate through an intermediate inference. Hall, supra at 583. Nor did the prosecutor present the evidence for the prohibited purpose of proving that defendant committed the crimes charged in accordance with a pattern of historical misconduct. See People v Starr, 457 Mich 490, 495; 577 NW2d 673 (1998), and People v Golochowicz, 413 Mich 298, 308; 319 NW2d 518 (1982). Thus, the evidence was not offered “to prove a person’s character
But even if MRE 404 applied to the evidence at issue, the evidence was still properly admitted. In Hawkins, supra, this Court summarized the criteria for admissibility of evidence under MRE 404(b) as clarified by our Supreme Court in VanderVliet.
Prior bad acts evidence is admissible if: (1) a party offers it to prove something other than a character to conduct theory as prohibited by MRE 404(b); (2) the evidence fits the relevancy test articulated in MRE 402, as enforced by MRE 104(b); and (3) the balancing test provided by MRE 403 demonstrates that the evidence is more probative of an issue at trial than substantially unfair to the party against whom it is offered, defendant in this case. A fourth factor articulated in VanderVliet, which does not fully conform to the idea of a test expressed in the preceding three factors, suggests that a party may request a limiting instruction under MRE 105 if the trial court decides to admit the challenged evidence. [Hawkins, supra at 447-448 (citations and internal punctuation omitted).]
The evidence in this case met these criteria because it was relevant for a reason other than to prove a theory linking character to conduct, and the trial court did not abuse its discretion when applying the balancing test of MRE 403. Moreover, the trial court gave a limiting instruction prohibiting the jury from drawing an improper inference. “Juries are presumed to follow their instructions.” People v Rodgers, 248 Mich App 702, 717; 645 NW2d 294 (2001), citing People v Graves, 458 Mich
ii
The trial court sentenced defendant to life in prison for his conviction of second-degree murder on the basis of sentencing guidelines scoring of five prior record variable (PRV) points and 115 offense variable (OV) points.
We review for clear error the trial court’s factual findings at sentencing. MCR 2.613(C); People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003). But the proper construction or application of statutory sentencing guidelines presents a question of law that is reviewed de novo. People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001). A trial court has discretion in scoring the sentencing guidelines. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). On appeal, we will uphold the trial court’s guidelines scoring if there is any evidence in the record to support it. People v Spanke, 254 Mich App 642, 647; 658 NW2d 504 (2003); People v Phillips, 251 Mich App 100, 108; 649 NW2d 407 (2002). In sum, this Court “reviews a sentencing court’s scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
We assume that the trial erred in scoring OV 3, but conclude that resentencing is not warranted because the life sentence imposed by the trial court was still within the appropriate guidelines range. When a trial court imposes a sentence within the recommended guidelines range of accurately scored sentencing guide
Under the sentencing guidelines act, a court must impose a sentence in accordance with the appropriate sentence range. MCL 769.34(2), Hegwood, supra at 438. But the Legislature has provided that second-degree murder “shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCL 750.317. The two alternative sentences available to a trial court, “life” or “any term of years,” are “ ‘mutually exclusive and a sentencing judge may (in the appropriate case) opt for either but not both.’ ” People v Carson, 220 Mich App 662, 669; 560 NW2d 657 (1996), quoting People v Johnson, 421 Mich 494, 497-498; 364 NW2d 654 (1984) (additional citations and internal punctuation omitted). Many factors affect the grant of parole, so one can only speculate regarding whether a lengthy term of years or life imprisonment is the more severe sentence. Carson, supra at 676. The sentencing guidelines grid that ap
If we accept defendant’s proposed guidelines scoring as correct, the appropriate sentencing guidelines range in this case is prior record variable level “B” and offense variable level “II.” Defendant argues that when MCL 777.21(3) (a) is applied because of his status as a second-felony offender, the II-B range changes from a recommended minimum sentence of 162 to 270 months to a range of 162 to 337 months and the trial court does not have the option to impose a life sentence without articulating a substantial and compelling reason for departing from the guidelines range. MCL 769.34(3). The second-degree murder, habitual offender sentencing guidelines grid found in the Sentencing Guidelines Manual, March 1, 2003, p 86, supports defendant’s position. But the Sentencing Guidelines Manual explicitly acknowledges that it has no force of law, and indeed provides the following caveat inside its front cover:
This sentencing guidelines manual has been prepared as an aid for those who use the guidelines enacted by the Michigan Legislature The manual is intended to reflect with complete accuracy the substance of the law. However, in the event that the manual fails to comport with the law, remember that the statute is the controlling authority. [Sentencing Guidelines Manual, March 1, 2003.]
In fact, the Legislature has not provided separate guidelines grids in situations where the habitual offender act applies. Rather, the Legislature has only directed that the upper level of the appropriate recommended minimum sentence range for an indeterminate sentence be increased in proportion to whether the convicted offender has one (twenty-five percent), two (fifty percent), or three (one hundred percent) prior felony or attempted felony convictions. MCL 777.21(3).
This view is buttressed by the fact that only one of six loci in the M2 grid, III-A (162 to 270 months) recommends an alternative life sentence where the upper limit of the recommended minimum sentence range is less than three hundred months. MCL 777.61. Similarly, the sentencing guidelines grid for class “A” offenses has life as a recommended alternative sentence only where the upper limit of the recommended minimum sentence range is at least three hundred months.
In sum, we hold that a life sentence for second-degree murder is outside the guidelines where the appropriate guidelines locus is II-B, and MCL 777.21(3) does not apply. But, where MCL 777.21(3) (a) applies to increase the upper limit of locus II-B to 337 months, then a life sentence is within the appropriate guidelines range. Accordingly, in this case, even if OV 3 and OV 14 were wrongly scored, the life sentence the trial court imposed was within the guidelines recommended range. Accordingly, remand for resentencing is not required. Davis, supra at 83; Mutchie, supra at 52.
See People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), mod 445 Mich 1205 (1994).
A math error exists on the sentencing information report (sir), which has an OV score of 105 points. This error did not affect the sentencing guidelines recommended range and does not affect defendant’s claim of error.