*1 MUHAMMAD PEOPLE v v FOWLER PEOPLE 19, 1988, 91940, May De- at Detroit. Nos. 93728. Submitted Docket 17, August 1988. cided Fowler, black, Larry N. both were Umar Muhammad murder, charged robbery, intent with bank assault with larceny, breaking entering intent and two with to commit during possession firearm the commission of counts of of a felony, The dismissed the break- St. Clair Circuit Court. court entering against ing charge each defendant. Defendants by stop their and search of vehicle contended thereby police illegal and all obtained should was evidence hearing suppressed. that the A on that contention revealed be stopping had vehicle knew that officer defendants’ people by a fifteen minute two black about been committed stop, the site that robbers often switched drive from crime, shortly criminals after after the that black vehicles committing defen- crime often head in direction would they taking going and that dants on the road were were time to see on that of road at that would be rare blacks section knowledge, stop day. determined to Based on the officer it, was which defendants’ the first vehicle with blacks did, occupant shot at least one vehicle. When he he was at gave chase and eventu- He and another officer vehicle. ally that under the circum- defendants. The court held arrested trial, permissible. Muhammad made was At stances trial, repeated separate requests the court refused. for a which prosecutor complained used his also when the Muhammad challenges peremptory four from the to exclude three of blacks challenges properly jury. exer- The court ruled that robbery, cised. was convicted bank assault Muhammad and, later, being murder, felony-firearm two counts of intent to robbery, felony of bank a fourth offender. Fowler convicted References 378, seq. 2d, seq., Law et 525 et Am Jur Criminal §§ 2d, seq. 17 et Am Jur Trial §§ change ground publicity as of venue. in criminal case Pretrial 33 ALR3d 17. 170 Mich dangerous weapon, felony-firearm assault with a one count of and, later, being sentenced, felony a second offender. Both were Oppliger, appealed. appeals Ernest F. J. Each were consoli- Appeals. dated the Court of Appeals The Court of held: *2 existing prior stop 1. The facts and circumstances to the of supported defendants’ vehicle the reasonableness of the officer’s investigate. decision to grant 2. It is error for the trial court not to a defendant’s put motion to sever the trial where the court is on notice of a potential conflict between the defendants and this conflict clearly apparent present becomes as the defendants their cases. apparent implicated A conflict was since Fowler confessed and Muhammad while Muhammad blamed two other individuals granted for the crimes. The court should have Muhammad’s request separate for a trial. by denying 3. The court did not abuse its discretion defen- request change change dants’ for a of A venue. of venue is not necessary though jurors exposed even have been to adverse publicity preconceived guilt and hold notions of or innocence if they lay impressions opinions can aside their or and render a upon presented verdict based the evidence in court. ruling prosecutor’s 4. The trial court’s peremptory challenges properly exercised was correct. properly felony-firearm 5. The charges trial court allowed two and convictions. dismissing breaking 6. The trial court erred in and entering charge since all the elements of the offense were preliminary established at the examination and at trial. How- ever, improperly charge that the court fact dismissed the and then let evidence of the crime be introduced should not inure to Muhammad’s benefit and be the cause of a new trial. properly 7. The court denied Muhammad a new trial based right on his compromised. claim that his to counsel had been 8. The court failed to articulate reasons for defendant Fowl- However, er’s sentence. the failure of a trial court in sentenc- ing expressly an offender to state on the record the reasons for imposed require the sentence resentencing does not remand for imposed guidelines where the sentence falls within the judicial does not shock the conscience. Fowler, Affirmed as to and reversed and remanded as to Muhammad. Cynar, J., only. concurred result Hood, J., on two issues. He in result but differed concurred vehicle was the initial of defendants’ would hold that illegal the trial court there was no need for but because, suppress the vehicle the driver of the evidence when officer, firing weapon the fact a at the came out of the vehicle proba- illegal stop and the officer had became irrelevant of pursue apprehend vehicle. He also was not ble cause peremptory challenges grant prosecutor’s prepared to that the motivated, but, put racially prosecutor forth since were not each, explanation racially that the he concluded neutral clearly err. court did not — — — Severance. 1. Criminal Law Trial Joinder grant motion to a trial court not to a defendant’s It is error for put potential the court is on notice of a sever the trial where and this conflict becomes conflict between the defendants present clearly apparent their cases. as the defendants Change op — — 2. Law Venue Venue. Criminal require pretrial publicity does not itself The existence of venue; necessary change change is not even venue exposed publicity though jurors hold to adverse have been lay guilt they preconceived aside or innocence if can notions upon opinions impressions a verdict their or and render based *3 presented in court. the evidence Appeal. Sentencing — — 3. Criminal Law sentencing expressly an offender to The failure of a trial court in imposed does on the record the reasons for sentence state resentencing require the sentence im- remand for where not judicial guidelines posed and does not shock falls within conscience. Attorney Kelley, General, Louis J.
Frank J. Cleland, General, Pros- Caruso, H. Solicitor Robert Ap- George, ecuting Attorney, Peter B. Chief and people. pellate Attorney, for the Lumumba, Muhammad for defendant Chokwe appeal. on (by Appellate Jon Van Defender Peter
State Hoek), appeal. Fowler on for defendant 170 op Opinion the Court Cynar B. Hood, P.J., and R. Burns,*
Before: JJ. single Following a trial before a R. B. J. Burns, guilty
jury, found as defendant Fowler was charged robbery, 750.531; MCL MSA of bank (Count i), guilty included of- 28.799 of the lesser dangerous weapon, MCL of assault with a fense (Count charged guilty of 750.82; as MSA 28.277 ii), during possession of a firearm the commission of a 28.424(2) robbery, 750.227b; MSA MCL bank (Count iv), charged possession guilty as of and not during assault, of an the commission of a firearm v). 28.242(2) (Count 750.227b; MSA Defen- MCL charged guilty found as dant Muhammad was (Count i), robbery, 750.531; 28.799 MCL MSA bank guilty charged murder, of assault with intent to as (Count guilty 750.83; MSA 28.278 as MCL ii), during charged possession firearm of a robbery, 750.227b; of a MCL commission bank 28.424(2) (Count iv), charged guilty as of of MSA possession during the commission of a firearm 28.424(2) (Count assault, 750.227b; an MCL MSA v). charged with break- Defendants had also been entering occupied dwelling ing of an with larceny, 750.110; MSA to commit MCL intent 28.305 in). (Count The trial dismissed these charges. by jury
Later defendant Fowler was convicted being felony Defendant a second offender. i no sentenced on Count to life with Fowler was consecutively to run to the credit for time served sentence felony-firearm four for the conviction and years to to run credit for time served Count six ii
concurrently. *4 jury Muhammad was convicted Defendant * sitting Appeals by Appeals judge, on the Court of Former Court of assignment. Opinion Court being felony a fourth offender. Defendant Mu- i hammad was sentenced on Count to life with no consecutively served, run credit for time to the felony-firearm sentence for the Mu- convictions. hammad was sentenced for assault with intent being offender, murder an habitual MCL 28.1084, 769.12; MSA to life with no credit for consecutively served, time to run to the sentences felony-firearm convictions, for the which ran con- currently. January approximately 7, 1985,
On at 11:20 a.m., a bank occurred in Fort Gratiot Township, Michigan, County, St. Clair at the Port Michigan Bank, Huron branch of the National persons on 24th located Avenue. Two rushed into leaped the bank. One onto the counter at jumped teller’s window and the other over the pulled counter. Both wore ski masks down over gloves green zippered faces, their and dark sweat- guns. shirts. Both carried The man on the counter approximately was 5'8" to 5'9". Both men were black. Black skin was underneath visible the ski put money masks. The tellers were ordered to bags carrying. person which the robbers were pillowcase on the counter had a cloth and the person in the teller’s area behind the counter had plastic bag. placed Money a white into the bags along pack designed go with a die off when persons packet left the bank and a of "bait money” with serial numbers known.
Upon leaving bank, the robbers were ob- parking served witness area. She carrying bags noticed two masked men white guns get run out of the bank and into a white or ivory vehicle, colored Am Trans or Camaro. As they got in the car a off in "red bomb went bag” dropped They and one man it there. drove off *5 170 op Opinion the Court park- through southerly Kthe mart
in a direction ing lot. deputy within at the scene arrived
A sheriff description of the robbers received a minutes and partial given getaway He was car. and license plate this infor- number, He radioed 773. parking dispatcher. lot, he From the mation to the dye. bag money with red covered retrieved a Raymond Deputy re- heard the Gleason Sheriff proceeded port to the turna- to observe west- 1-94 Griswold Road round at approximately 11:25 a.m. was at traffic. This bound watching suspects for a.m. Gleason was to 11:27 heading area. At Clemens the Detroit/Mount Bronco and black Ford 11:33 he noticed a red a.m., immediately driving. He male with one black pulled in the license it. He called out and followed stop- plate be that he would number and advised ping the vehicle. got stop,
Following of the Bronco the driver deputy, gun directly aiming at and, out firing. began and then a heard one shot Gleason break and he He saw the windshield second shot. momentarily stunned hit in the head. He was was couple After a down on the seat. and went face seconds, He radioed was able to move. Gleason pull the Bronco He heard that he had been shot. wiped away. face and de- the blood from his He follow He decided to able to function. cided he was and catch up the Bronco. pursued I- down westbound the Bronco
Gleason up at the Smith been set 94. A roadblock had reaching roadblock, exit. Just before Creek Gleason observed go median across the the Bronco through lane, a ditch and then the eastbound through Skill School District the Intermediate Range Road. Center police Marysville along followed, awith
Gleason Muhammad Opinion of the Court Marysville unit from the roadblock. car at a Gleason. The chase ended residence ahead of Range Road. located at got Timothy O’Boyle out on the Assistant Chief police Marysville passenger ran car and side of the O’Boyle to the field behind residence. around pursued followed. in the field. Gleason the robbers suspects lying approached, the were Gleason When handcuffed down in the field. Gleason face suspects O’Boyle suspects covered. The while *6 pil- O’Boyle from the field arrested. retrieved A defendant Fowler. lowcase thrown down large Ruger money, re- short-barreled sum of found inside. and a holster were volver to his Muhammad was raised When defendant feet, on the revolver was found a Smith & Wesson ground lying. had been where Muhammad May 23, 1985, motions were heard
On judge Muhammad’s mo- as to defendant state- to exclude his codefendant’s tion limine prosecutor alleged that he did not ments. The However, the state- the statements. intend to use against might Fowler in used defendant ments be The trial or re-examination. cross-examination judge the statements held that he would not allow hearing. used without a be stop
Defendants also contended that illegal illegal stop an search Bronco was an stopped only Bronco because Officer Gleason Therefore, driver. all it contained a black because illegal fruit of an was the of the evidence obtained stop, trial arrest, and seizure. The detention held: there exists the element
I’m satisfied that mind of the district probable It was in the cause. over, that’s what this matter judge when he bound proceeds time. As the case talking at this you’re 170 Opinion of the Court support for you have some and the facts indicate I your position, it will your position as relates to position at that time. There is you your let renew your I motion certainly no can find basis point. time and quash the information at this goes for the motion to dismiss That also Fowler, in this matter as regards to defendant entering charge breaking and relates to both the and the assault with intent intent to murder. The again if it proven larceny to commit has be a factual situa- isn’t shown of course that creates trial, also the intent to murder. tion at the time of to sever the individual Defendant Fowler moved Muhammad moved to sever the counts. Defendant arose trial. The trial held that counts substantially the same transaction and de- out of nied motions. suppress
It the motion to was determined illegal stop of an would the evidence because require hearing. evidentiary an hearing relating evidentiary At to the traffic Deputy by Deputy Gleason, Sheriff made Terry that he received a radio G. Baker testified January 11:22 the bank at call about 7, a.m. given description bank, 1985. At the he was *7 getaway vehicle. He radioed the robbers and the description within two minutes. Herpel approxi- Deputy testified that William mately minutes after he received the radi- eleven description of the vehicle he discovered the oed getaway than a mile from the car abandoned less running. Herpel It Just as at- bank. was still Deputy tempted information, to broadcast broadcasting shot. that he had been Gleason was For the Herpel trying safety officers, ceased of the capture until of the to broadcast chase suspect completed. was opera-
Herpel method of stated that a common op Opinion the Court get immediately tion for bank robbers is to rid of getaway vehicle and switch to a "cold vehicle.” getaway why That is he searched for the vehicle robbery. within a mile of Deputy Sheriff Thomas Carr testified that attempting operating procedure in to standard description stop a vehicle is to radio in a plate vehicle, the license number and the location. going that he to Carr heard Gleason broadcast attempt was time, At the Bronco. the same plate the license number and Carr Gleason radioed ran it responded through computer. computer Just as the stolen, Gleason the Bronco was that he had shot. radioed been Raymond special agent Foltz, testi- fbi, Deputy fied that he and were on a two- Gleason prior robbery. week stakeout to the instant bank He discussed with Gleason the fact that "switch in car” was often used bank robberies. Gleason suspects usually was also told that black would head back to the Detroit area.
Deputy part his Sheriff Gleason testified as to apprehension He stated that the defendants. experience in there were two locations where (1) suspects attempt go: would the South area, live; Park where most blacks in Port Huron (2) area, the Detroit/Mount Clemens via 1-94. got 1-94 Gleason minutes. He to the location within four or five approximately
knew took ten get fifteen minutes to there from the bank. Be- Foltz, cause of his conversations with he was not looking looking vehicle, for the described but was for a member or members of the black race. Trafile light at that time. It be rare to see would day. on that section of 1-94 at that time of blacks twenty passed Fifteen to vehicles before Gleason spotted the Bronco with a black driver. The Bronco was the first vehicle he saw with blacks *8 Opinion op the Court fifty traveling between it. The Bronco was sixty per hour. Gleason stated: miles going stop the first up my I was I made mind me, previous my person by went due black our detectives. experience Agent Foltz and with cross-examination, that he Gleason testified On person stop any drove who black had decided past any difference how It make him. did not many Race was his criteria were in the car. blacks descrip- making stops that was the because of the robbers. tion stated that he examination Gleason
On redirect only stop in them with blacks intended to vehicles twenty minutes; the time frame would within take to drive from the bank
to this location. people no had and number described vehicle stop bearing he he would because on what vehicle geta- people many in the did not know how way car. looking that, at the entire held
The trial permissible circumstances, and the this was probable the testi- cause were met elements of mony. During May 29, 1985.
Trial commenced on re- dire, Muhammad in the voir defendant break Muhammad ar- motion to sever trial. newed his alleged gued that codefendant Fowler’s statements antagonistic that, The trial held defenses. that there were until time as he was satisfied such proceed antagonistic defenses, the trial would both defendants. alleged that, Muhammad also
Defendant prosecutor peremptory challenges, had ex- prosecutor’s jury. from the Of cluded blacks challenges, peremptory blacks, three were five leaving jury. elderly Defen- man on the one Opinion of the Court *9 argues improper that this was an use of dant discharge peremptory challenges requiring a prosecutor jury. record, For the the stated preempted potential why reasons he as each explanation, juror. Following the trial challenges judge peremptory ruled were that properly. exercised
Following proofs, people’s defendants moved charge regard to the for a directed verdict with breaking entering with intent to commit lar- and ceny, murder, with intent to commit and assault judge felony-firearm the two counts. The trial held one at separate committed, felonies that two highway. Therefore, and one on the bank felony-firearm two counts would stand. The trial breaking entering judge dismissed the count of and larceny. with intent to commit appeal, On Muhammad raises seven issues and three will consolidate the Fowler raises issues where issues. We possible. judge
Defendants claim the trial erred when he quash warrants, denied their motions to plaint com- suppress the evi- information and following stop dence obtained of the motor riding vehicle which the defendants were be- stop cause the basis of the driver. was the race of the hearing evidentiary An relative to the vehicle stop by Deputy May 23, made Gleason was held on judge 1985. The held that there were reasons beyond suspicion stop. "hunch” for the mere or necessary The stated that is to look at the surrounding entire circumstances the case. The stop he officer’s statements would first going by black who was not tell the whole does police story. The officer had additional informa- tion, race, other than which affected his decision. testimony clearly held that indi- App 170 Mich Opinion of the Court permissible met the elements
cated a probable cause. suppress ruling motion to on a
A trial court’s appeal unless not be reversed evidence will clearly Grimmett, 97 Mich v erroneous. (1980). upon If its review 212; 293 NW2d possess a definite this Court does not of the record and firm conviction court made a People Toodle, mistake, 155 Mich it must affirm. (1986). App 539; 400 NW2d Taking totality of the circum- into account Deputy had a stances, particularized Gleason we believe suspecting objective basis for His assessment was based the driver of the Bronco. po- objective observation, information from on his *10 reports of the modes and consideration lice radio patterns operation He of robbers. bank and deductions trained officer whose inferences person. might He based elude an untrained well probabilities. Bronco on the his decision to totality of the circumstances His assessment led to the Bronco driving suspicion that the individual may in the have been involved observing merely more than on a the bank. This was predomi- driving highway where male recalling nantly found or white drivers would be month earlier. robbed a that a bank had been Deputy suspicion. individualized, articulable Gleason had an exist- and other circumstances
The facts stop supported ing immediately prior to the Deputy decision to Gleason’s reasonableness investigate. the trial court Next, claim that the defendants mo- Muhammad’s it denied defendant erred when reason that there the trials for the tion to sever antagonistic defenses. We believe were trial denying defen- his discretion abused He the trial. motion to sever Muhammad’s dant People Opinion op the Court possible antagonistic prior had notice of defenses separate trial, and after a record was made during trial the inconsistencies between the defen- apparent. readily ses became granted A severance should be when the defen- jointly ses of several defendants indicted are an- tagonistic towards each other. When one defen- making impossible other, dant accuses the thus asking for the defendant fair for a severance to have a granted. People trial, the severance should be (1976). Hurst, 1; v 396 Mich NW2d More- directly over, even when defendants do not accuse being guilty party, one another of the court separate proofs, should order trials if the combined pit theories, with the defense the defendants against Any each other. set of circumstances deprive which is sufficient to a defendant of a fair jointly if trial tried with another is sufficient to require separate trial. put potential
When the court is
on notice of a
conflict between the defendants and this conflict
apparent
clearly
pres-
becomes
as the defendants
cases,
ent their
it is error for the trial court not to
grant a defendant’s motion to sever the trials.
Webb, 182;
Following people’s proofs, defendant Fowler testify. jury was called to was removed. Defen- dant Muhammad renewed his motion to sever separate By separate trial. A record was made. *11 record Fowler testified that he and Muhammad planned together. and executed the Mu- hammad drove the Bronco and fired the first shots deputy. emptied at the Fowler also his revolver at police might vehicle. Fowler have hit the car or shot into a window. The trial held that special record did not reach the standards set trying Hurst, forth in in that Fowler was not 747 170 Mich Opinion of Court exculpate incriminate Muhammad. himself opportunity requested Muhammad’s counsel an antagonistic Muham- on the defenses. elaborate would tes- mad’s counsel stated that Muhammad tify participants there two who other involved, know were the that Muhammad did not of stayed bank, that he with the rob a intent robbery, participate Bronco and did not in the that and that gun freeway never shot at all on he the other participants away two from ran shooting. We believe that testi- scene mony pitted clearly of defendants them against though they other, each even did not directly clearly accuse The was each other. conflict apparent at time and the should trials have severed. been process
Defendant Muhammad claims his due rights impartial jury to trial an were denied refused motion for when change court change
of of a for a Denial motion venue. of venue within trial court’s discretion and its discretion will not be reversed unless there Swift, v has been abuse of such discretion. (1912). appropriate 473; 172 Mich It is NW trial for the court to reserve a decision on a request change jury for a of venue until selection attempted original county. has been in the pretrial publicity not does existence require change change itself of venue. A necessary though jurors venue is not even have precon- exposed publicity hold to adverse been they guilt lay notions or innocence if can ceived aside opinions impressions their or and render a upon presented based the evidence verdict 1639; Dowd, 717; 366 US 81 S Ct 6 L court. Irvin (1961). During the voir dire trial Ed 2d twenty-two jurors for cause when dismissed impar- they they not indicated could be fair *12 People v Muhammad Opinion of the Court tial. At the dire, conclusion of the voir judge open stated that there had been full questioning jurors by both defense counsel represented jury and that of the a fair cross section community impartial. and was fair and He change denied the motion for a of venue. judge
We believe the trial did not abuse his denying discretion in defendants’ motion for a change of venue. they
Next, defendants claim that were denied process prosecutor, exercising because the due challenges, peremptory persons excluded black jury. previously prosecutor, stated, from the As peremptory challenges, out of five excluded three leaving elderly jury. blacks, one black on the prosecutor However, the stated on the record his challenges. reasons for such He excused Mrs. Ash- ford on the basis of her answers and her conduct. Her attitude was not consistent with what he good juror. conceived to be a He also some noticed kind of communication between Mrs. Ashford and one of the defendants. He excused Mrs. Kidd be- cause, when he first asked her if she had driven Ashford, home with Mrs. Mrs. Kidd said no and changed yes. prose- then later her answer to The did not feel comfortable with her answers. cutor prosecutor finding excused Mr. Ward after out charge, that he had been arrested for a criminal peremptory sufficient basis for the use of a chal- were lenge. peremptory challenges None of his racially motivated. relying that, record,
The trial ruled on the challenges peremptory prop- were exercised erly. agree. We
Also, defendant Muhammad claims the trial by allowing court committed error him to be charged and convicted of two counts under the felony-firearm statute, he because claims App 747 Opinion op the Court single
charges against of a transac- him arose out tion. case in the instant
The trial ruled committed two there were two sets felonies felony separate *13 the bank One was at occasions. agree highway. the that the other on We and there charging defendants was no error the separate felonies. with two Next, he was de- Muhammad claims defendant process a the due and fair trial because trial nied court failed to prior all
rule to trial that the charges necessary support to of the elements entering breaking intent to commit lar- and with allowing ceny thereby established, had been not alleged testify regarding the crime witnesses respect prejudicing jury thereby and with defendant. breaking entering
All of the elements of and larceny intent to commit were established at with both preliminary trial. It examination and at error for the trial to dismiss this count. However, 750.110; it was harmless error. MCL MSA 28.305 states: Any person break enter with who shall and larceny or any felony, any
intent therein, commit tent, office, hotel, store, shop, ware- any house, barn, building, granary, factory or other structure, ship, private car any or railroad or boat apartment pied dwelling any buildings any or unoccu- such house, guilty felony a shall be of imprisonment prison in the punishable by not more than 10 state person years. Any who breaks house, occupied dwelling in- any and enters therein, any felony larceny tent to or shall commit punishable guilty felony by imprisonment be of prison years. in the for not more than 15 For state dwelling purpose "any occupied of section require one house” includes that does not occupant an of the physical presence of at the time Opinion of the Court breaking entering habitually one and but which is place used as abode. Delores house, she Cook testified that was at her mother’s Range Road, when two burst men into her, the unlocked house. One man asked "Where’s keys” and she stated that she not did have the keys. outside, The two men went locked Cook door, chain, lock, and the men broke the casing on the door and reentered the house. The again captured by men ran out police may in the field It behind house. be asking inferred one of the defendants was keys purpose taking Delores Cook for for the occupant dwelling. vehicle from the The fact keys there were no or vehicle at the house negate does not element intent. We believe dismissing the trial erred in the count of breaking entering with intent to commit lar- ceny. judge improperly The fact *14 dismissed count this should not inure to defen- dant’s benefit and be the cause a new trial.
Next, defendant Muhammad claims the trial by denying court erred his motion for new trial right the basis that his to counsel had been compromised. evidentiary 10, 1987, On March an hearing relating held was before the trial court to attorney-client the that assertion defendant’s con- electronically ferences were monitored while he County in was incarcerated the St. Clair Jail. assigned corporal Bloomfield, Michael as in the County 1985, Clair 13, St. Jail on December testi- 17, 1985, fied that he was notified on December attorney speaker Dean David that there awas (the in "blue device the room” room conference for attorney-client meetings jail). at the Dean did not thought police actually indicate listening he the instrument, the over but to wanted know 170 Opinion op the Court capability the to listen into there whether was he to Dean that room. Bloomfield indicated blue having ability knowledge no ever had listen or speaker system. speak by any kind of into that room requested to be shown
Bloomfield speaker. a face It on the wall behind the plate. was up get in had on a table order
Bloomfield speaker. to see the speaker in the blue
Bloomfield believed that knowledge inoperable that it and had no room was speak ever listen or to into room. was The used to speaker system jail goes certain cell Visiting block areas. rooms do not have same speak capabilities. into or hear You cannot them going con- is on in them. The main control what operates public system has address sole which any speaker in the which controls blue no switch room. equip- in the use
Bloomfield was trained supervisor. jail He full ment he has when became knowledge operating of the and has console everyday year. no used for the last There was support evidence to defendant’s contention moni- the conversations the blue room had been right or that defendant’s Sixth Amendment tored infringed. the trial had affirm to counsel been We judge’s order. raised in this case is defendant last issue
Fowler, should be vacated who claims sentence resentencing because case remanded under facts of his sentence excessive court case and sufficient reasons for failed to articulate because imposition In of the sentence. Coles, 523; 417 Mich NW2d *15 (1983), Supreme appellate our held an Court reviewing court, of dis- in a trial court’s exercise sentencing, may in afford relief to a defen- cretion dant appellate only if the court finds that the trial Muhammad Opinion Court of the imposing court, sentence, in its abused discre- to tion the extent that it shocks the conscience of appellate court. August 6, 1985, On defendant was con- Fowler being felony victed of had been second offender. Defendant
previously of bank convicted armed rob- bery in the State of California. robbery
The crime of armed with it carries imprisonment punishment prison in of the state any years. life of 750.529; for or for term MCL MSA 28.797. Defendant’s shock the life sentence of does not of
conscience this Court. Defendant also contends did sufficiently impo- not articulate his reasons for announcing In sition impose sentence. decision robbery a life the bank sentence on convic- tion trial stated: record, all, Let me state first of that I’m very having final aspects case, with all familiar of this same, jury heard and the has made their determination guilt as to of this defen- and, course, dant bank with it a carries maximum life sentence and thereto addition certainly, put
there is it all of way, let’s aggravated present circumstances that could be present were Mr. you, this case and I want to tell Fowler, impressed I was with your statement made, indicates, you course, that lack in do you not education, you, obviously, good have education you the same token must have been you doing aware of what at time pass I’m you going did these actions and sen- tence at this time. It judgment you is the of this court be Michigan committed to the Commis- Corrections at Michigan, sion the State Prison Southern Jackson, Township [sic], of Blackman County of penal in such be confined institution of the state as it shall direct for life with no credit for time served. *16 App 747
766 170 Mich by Hood, P.J. Concurrence judge’s Perhaps that "all the statement trial pres- aggravated could be that circumstances the satisfy present” to of this Court is not sufficient ent were mandates died sentencing judge have reme- of Coles. Panels by remand to of articulation absence may placed that reasons be so App Cannoy, 451; Mich v 136 the record. (1984). 357 67 NW2d App People Willhite, However, 155 Mich in v (1986), re- did not 124; 399 57 this Court NW2d specific the not statement where mand for more guidelines and did fell within the sentence shock the a sons the defendant’s sentence. panel judicial held that conscience. The specific by its court of rea- statement trial reviewing way would no aid Court do not believe that a remand for We specifically to articulate its reasons court more Therefore, would assist us in review. the sentence declare the error harmless. we is As as affirmed. This case to defendant Fowler Muhammad, the case is reversed to defendant remanded for a new trial. only. J., concurred in result
Cynar, (concurring). I P.J. concur with result Hood, separately majority, to but write reached express respectful to conclusions difference as two reached on issues. Deputy
First,
Gleason had
I do not feel
probable
simply because
cause to
the Bronco
agree
necessary I
it is
it had
driver.
totality
of the circumstances
deter-
examine the
police is
to authorize
mine what cause
sufficient
stop.
411,
Cortez,
US
v
449
make
United States
(1981); People v
418;
690;
101
in a white or Less than fifteen minutes noticed a black and red Ford Trans Am or Camaro. Deputy
later, Gleason Bronco, with one *17 approximately fifty years driving male, old, black and decided to it because black male was driving. stop Gleason testified he had decided to person
any regard- him, black who drove persons less knew Bronco the number of in the car. Gleason nothing being about cars or switched the
being stolen. There is no discernible basis supporting for Gleason’s statement is rare freeway to see blacks on an interstate the day. Being driving middle of black the on a public highway within a short time after a bank opinion, my justify not, does the arbi- trary stop made in this case. The fortuitous fact perpetrators the turned out be in justify vehicle does not in and of itself the result. Despite illegal stop, however, initial there suppress was no need for the trial court to evidence. When driver the Bronco came out firing weapon deputy, of the vehicle at the illegal stop irrelevant, fact of the became deputy certainly probable Gleason had cause to pursue occupants. apprehend the Bronco and its prepared,
I am not record, also based on the prosecutor’s make a conclusion that none of challenges peremptory racially motivated. clearly The the planations err, however, trial court did not since prosecution put racially did forth neutral ex- challenging jurors. Except agree herein, as indicated I all opinion. majority conclusions