PEOPLE v MILTON
Docket No. 105076
Court of Appeals of Michigan
Submitted August 8, 1990. Decided December 17, 1990.
186 MICH APP 574
The Court of Appeals held:
- Evidence of a threat by the defendant to stab a third party several hours before the fatal stabbing of the victim was properly admitted. The prejudicial effect of the statement did not substantially outweigh its probative value.
- The trial court‘s scoring of the sentencing information report was supported by the evidence.
- The sentence imposed comports with the principle of proportionality announced in People v Milbourn, 435 Mich 630 (1990), and was nоt an abuse of discretion. Departure from the sentencing guidelines was justified because the guidelines do not adequately account for important factors that were legitimately considered at sentencing.
- The defendant need not be resentenced under
MCL 769.1(3) ;MSA 28.1072(3) , as amended. Amendments of criminal statutes concerning sentences or punishment are not retroactive. - The trial court did not abuse its discretion in denying the defendant‘s motion to disqualify the trial court.
Affirmed.
DANHOF, C.J., concurring in part and dissenting in part, stated that, because the sentence exceeded the sentencing guidelines, the case should be remanded to permit the parties to argue the proportionality standard and to permit thе trial court to resentence the defendant in light of Milbourn.
REFERENCES
Am Jur 2d, Evidence §§ 324, 651.
See the Index to Annotations under Declarations or Statements; Intent or Motive; Prior Testimony or Statement; Same or Similar Acts or Matters.
A prior statement of general intent by a criminal defendant is not a prior act for the purposes of
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Thomas L. Smithson, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.
State Appellate Defender (by Kim Robert Fawcett), fоr the defendant on appeal.
Before: DANHOF, C.J., and SULLIVAN and NEFF, JJ.
NEFF, J. Following a jury trial, defendant was convicted of second-degree murder,
This case arises from the fatal stabbing of sixty-six-year-old Clara R. Nelson at a laundromat in Escanaba, Michigan.
I
Dеfendant claims that the trial court erred in admitting a statement made by defendant several hours before the homicide where he threatened to stab a third party. Defendant claims that the prejudicial effect of the threat outweighed its probative value. We disagree.
The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. People v Watkins, 176 Mich App 428, 430; 440 NW2d 36 (1989). An abuse of discretion is
Before trial, the prosecutor sought a determination of whether evidence of certain similar acts involving defendant would be admissible at trial under People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). Among other things, the prosecutor wished to introduce into evidence a statement allegedly made by defendant during a confrontation with Todd Juhl several hours before defendant killed Nelson. Defendant threatened to stab Juhl. Defendant responded by moving in limine to exclude all similar acts. The trial court held that the prior statement was admissible under Golochowicz and stated that the prior statement was relevant to issues of identity and intent.
In People v Goddard, 429 Mich 505, 514-515; 418 NW2d 881 (1988), however, our Supreme Court held that a statement of general intent is not a prior act for the purposes of
Evidence is relevant if it tends to make the existence of a fact in issue more probable or less probable than it would be without the evidence.
Here, defendant‘s prior statement is relevant to the issue of defendant‘s theory of accident. Defen-
The question then becomes one of prejudice. While the testimony of Juhl was certainly prejudicial to defendant, we cannot conclude that the trial court abused its discretion in determining that the prejudicial effect of the statement did not substantially outweigh its probative value.
II
Defendant also claims that the trial court erred in scoring the sentencing information report and claims that Offense Variable 7, offender exploitation of a victim‘s vulnerability, should have been scored at zero beсause the victim was not vulnerable and because defendant did not exploit any alleged vulnerability. We disagree.
Appellate review of sentencing guidelines calculations is very limited. People v Richardson, 162 Mich App 15, 16; 412 NW2d 227 (1987). A sentencing judge has discretion in determining the number of points to be scored, provided there is evidence on the record which adеquately supports a
The trial court explained its scoring of Offense Variable 7 as follows:
I, too, went through the Sentencing Information Report, noted that ov 7 had been scored at 3 and sрent a consider — considerable amount of time reflecting back on the information available to the Court through the pre-sentence information and, in fact, the trial wherein I heard the testimony.
I‘m going to specifically rule, as a matter of fact and law, that I believe the ov 7 scored at 3 was correct. I do bеlieve that this offender took advantage of the disparity between himself and the victim, both in size, strength, agility, age and the ability of the offender to surprise the 66-year-old woman in a state of fatigue at the end of the day, who was attempting to mop a floor with a totally unexpected, unprovoked attack. I think, and to prеserve the point for appeal, I believe it to be appropriately scored and I‘m mindful of the comments that say just because one or two of these are present, I think that in this particular case, there was a definite advantage on the side of Mr. Milton. He used it. It resulted in the death of Mrs. Nelson. I refuse to change ov 7.
We conclude that the trial court‘s scoring of Offense Variable 7 was supported by evidence at trial.
Defendant next claims that his sentence should shock this Court‘s conscience.
Defendant‘s sentence of twenty-five to fifty years’ imprisonment exceeded the sentencing guidelines range of seven to sixteen yеars’ imprisonment. Under the newly announced “principle of proportionality,” our Supreme Court has instructed that departures from the guidelines, while permissible, are suspect and are subject to careful scrutiny on appeal. People v Milbourn, 435 Mich 630, 659-660; 461 NW2d 1 (1990). The Supreme Court also instructed, however, that “departures are approрriate where the guidelines do not adequately account for important factors legitimately considered at sentencing,” and that
trial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime.
* * *
. . . Even though sentencing within the guidelines is recommended rather than compulsory, departures from the guidelines, unsupported by reasons not adequately reflected in the guidelines variables, should nevertheless alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme.
* * *
Where there is a departure from the sentencing guidelines, an appellate court‘s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the reсommended range in the absence of factors not adequately reflected in the guidelines should alert
the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. [Id., pp 657, 659-660.]
Milbourn further instructed that
[t]he trial court appropriately exercises thе discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination. [Id., pp 653-654.]
Defendant clearly raised and preserved the issue of sentence length in this appeal which was pending when Milbourn was decided. Therefore, Milbourn applies to this appeal. Id., p 670.
Applying the new standards of appellate sentence review announced in Milbourn to the exercise of sentence discretion by the trial judge in this case, we conclude that the sentence imposed comports with the “principle of proportionality” and does not constitute an abuse of discretion.
In sentencing defendant, the trial court stated in pertinent part:
I do not intend to sentence [defendant] in a sterile vacuum. I do intend to exceed the guidelines and as scored by myself, those guidelines in response to the Defendant‘s request, those guidelines would be 84 to 192 months and I do intend to exceed them. This is one of those cases where indeed although I do not look to pass conviction as a juvenile, as I say, I cannot remain in a vacuum and there is a clear pattern known to the Court of Mr. Milton‘s activities which shows escalating aggressiveness and assaultiveness and in particular, as in this case, and the sworn evidеnce before the
Court, Mr. Milton is not adverse to the use of weapons, deadly weapons. He has now done so, effecting the death of this woman. It is time to discipline Mr. Milton and it is time to remove him from society for its own protection with the hope that there will be a time of rehabilitation or reformation. And in so doing, I accept the comments as reasons for this sentence, in addition to those comments that Mr. Milton at this level does not understand the reasons for moral or ethical rules. He is not able to reflect upon his own behavior in advance and guide himself in a rational fashion. He has no religious training or beliefs which could be substituted for a rational guide to his behavior. Abstract thinking skills must be developed in Mr. Milton through education and counseling for him to be able to understand himself, what is happening to him, what the future may hold for him, and determine his own course of action in accordance with the rules of society. It would appear from the evaluation perfоrmed for sentencing that Mr. Milton does have some potential for rehabilitation if the above issues are addressed as a major part of a rehabilitation effort.
The trial judge found that there was a “totally unexpected, unprovoked attack” on the victim. His reasons for sentencing defendant in excess of the guidelines included defendant‘s escalating aggressiveness and assaultiveness, the fact that defendant is not adverse to using deadly weapons, that defendant does not understand the reasons for moral or ethical rules, and that defendant needs to develop abstract thinking skills. These circumstances were not adequately embodied within the variables used to score the guidelines and justified the departure from the guidelines.
Our review of the sentencing transcript does not leave us with the conclusion that the trial judge was imposing a subjective personal “philosophy of
IV
Defendant claims that he should be resentenced under
V
Defendant contends that the trial judge erred in dеnying his motion for disqualification. Defendant claims that the trial judge was exposed to inadmissible evidence before sentencing and was, therefore, not impartial.
At a pretrial motion hearing, defendant requested that the trial judge review the waiver proceedings from the probate court. At best, it is unclear from the reсord whether defendant wanted to have the waiver proceedings reviewed
After defendant‘s conviction, he moved to disqualify the trial judge from sentencing. He argued at the hearing on the motion that the trial judge had been exposed to testimony by Poit that would be inadmissible at trial under MCR 5.911(G) and would affect the trial judge‘s sentencing decision. Defendant also moved to have Poit‘s report suppressed and deleted from the presentence investigation report. The trial judge denied defendant‘s motion to disqualify, but granted defendant‘s motion to suppress the report, noting that he had not reread Poit‘s report in consideration of sentencing. Defendant‘s motion to disqualify was reviewed de novo by another circuit judge, who also denied defendant‘s motion.
The denial of a motion to disqualify is tested under an abuse of discretion standard. People v Houston, 179 Mich App 753, 755; 446 NW2d 543 (1989); People v Upshaw, 172 Mich App 386, 389; 431 NW2d 520 (1988). We have reviewed the record and conclude that the trial court did not abuse its discretion in denying defendant‘s motion to disqualify.
Defendant also argues that his right to due process of law and his right against self-incrimination were violated when he was sentenced by a judge who had reviewed the psychological report and testimony. The right against self-incrimination attaches at a court-ordered psychiatric examination used for sentencing purposes. People v Wright, 431 Mich 282, 295; 430 NW2d 133 (1988). Defendant has not, however, shown a violation of
Affirmed.
SULLIVAN, J., concurred.
DANHOF, C.J. (concurring in part and dissenting in part). I dissent from part III of the majority opinion. As noted by the majority People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), clearly applies to this case. Milbourn placed considerable emphasis on the sentencing guidelines in assessing whether a trial court compоrted with the principle of proportionality. The trial court in this case exceeded the guidelines. For this reason alone, I would remand this case to permit the parties to argue the proportionality standard and to permit the trial court to resentence defendant in light of Milbourn. Until the trial court has the opportunity to apply Milbourn, I would not intimate any opinion regarding whether defendant‘s sentence comported with or violated the principle of proportionality.