People of Michigan v. Donald Eric Brezzell ( 2015 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    November 12, 2015
    Plaintiff-Appellee,
    v                                                                  No. 322978
    Oakland Circuit Court
    DONALD ERIC BREZZELL,                                              LC No. 2013-248285-FC
    Defendant-Appellant.
    Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
    PER CURIAM.
    Defendant was convicted in a jury trial of armed robbery, MCL 750.529, and possession
    of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was
    sentenced to 42 months to 20 years’ imprisonment for the armed robbery conviction and two
    years’ imprisonment for the felony-firearm conviction. Defendant appeals by right. We affirm.
    In the early morning hours of August 26, 2013, Stephen White, a police officer with the
    Detroit Police Department, was sitting in his driveway at the Sutton Place Apartments in
    Southfield. As White waited for his girlfriend to come outside, two men approached his 2013
    Dodge Charger, and pointed guns in his face. White testified that the men told him, “ ‘Run your
    s***, bro,’ ” which is a phrase White knew referred to a robbery. When one of the men fired a
    shot at White, White fired back using his police gun. White got out of the car and continued
    shooting as he backed into his garage. Once inside, he called 911. Police officers arrived at the
    scene and discovered the body of Deondre Collins, defendant’s half-brother, near White’s
    driveway. The gun Collins had in his hand was loaded, but one round had been fired. Officers
    arrested Brandon Smith near the apartment complex, and later found a 38-caliber revolver in the
    area where Smith was arrested. Southfield Police Officer Michael Raby found a third weapon, a
    black and silver semi-automatic handgun, in a roadway inside the complex. Officer Raby
    testified that the gun he found shoots plastic BBs.
    Defendant first argues that the prosecution failed to present sufficient evidence that he
    aided and abetted the armed robbery because the evidence did not prove beyond a reasonable
    doubt that he knew that there was a plan to commit armed robbery at the time he drove to the
    apartment complex. Further, defendant contends that the fact that he assisted one of the
    individuals after the robbery did not constitute aiding and abetting. We disagree.
    -1-
    We review claims of insufficient evidence de novo. People v Harrison, 
    283 Mich. App. 374
    , 377; 768 NW2d 98 (2009). The evidence must be viewed in a light most favorable to the
    prosecution to “determine whether a rational trier of fact could find that the essential elements of
    the crimes were proven beyond a reasonable doubt.” 
    Id. at 377-378.
    Viewing the evidence in a
    light most favorable to the prosecution, sufficient evidence existed for a reasonable jury to find
    that defendant knew the other individuals intended to commit armed robbery when defendant
    assisted by driving through the apartment complex and driving one of the individuals away from
    the complex.
    In 2004, the Legislature revised the unarmed-robbery statute, MCL 750.530,1 by
    codifying the transactional theory of robbery. People v Smith-Anthony, 
    494 Mich. 669
    , 686; 837
    NW2d 415 (2013). Under the statute, robbery includes acts that occur in an attempt to commit a
    larceny and in flight after the commission of a larceny. MCL 750.530(2). “[A] completed
    larceny is no longer necessary to sustain a conviction for the crime of robbery or armed
    robbery.” People v Williams, 
    491 Mich. 164
    , 166; 814 NW2d 270 (2012). The armed robbery
    statute, MCL 750.529,2 proscribes the conduct described in MCL 750.530 when the person
    engaging in such conduct is in possession of a dangerous weapon or “an article used or fashioned
    in a manner to lead any person present to reasonably believe the article is a dangerous weapon.”
    Under the revised statute, the elements of armed robbery are:
    1
    MCL 750.530 provides:
    (1) A person who, in the course of committing a larceny of any money or
    other property that may be the subject of larceny, uses force or violence against
    any person who is present, or who assaults or puts the person in fear, is guilty of a
    felony punishable by imprisonment for not more than 15 years.
    (2) As used in this section, “in the course of committing a larceny”
    includes acts that occur in an attempt to commit the larceny, or during
    commission of the larceny, or in flight or attempted flight after the commission of
    the larceny, or in an attempt to retain possession of the property.
    2
    MCL 750.529 provides:
    A person who engages in conduct proscribed under section 530 and who
    in the course of engaging in that conduct, possesses a dangerous weapon or an
    article used or fashioned in a manner to lead any person present to reasonably
    believe the article is a dangerous weapon, or who represents orally or otherwise
    that he or she is in possession of a dangerous weapon, is guilty of a felony
    punishable by imprisonment for life or for any term of years. If an aggravated
    assault or serious injury is inflicted by any person while violating this section, the
    person shall be sentenced to a minimum term of imprisonment of not less than 2
    years.
    -2-
    (1) the defendant, in the course of committing a larceny of any money or other
    property that may be the subject of a larceny, used force or violence against any
    person who was present or assaulted or put the person in fear, and (2) the
    defendant, in the course of committing the larceny, either possessed a dangerous
    weapon, possessed an article used or fashioned in a manner to lead any person
    present to reasonably believe that the article was a dangerous weapon, or
    represented orally or otherwise that he or she was in possession of a dangerous
    weapon. [People v Chambers, 
    277 Mich. App. 1
    , 7-8; 742 NW2d 610 (2007),
    citing CJI2d 18.1.]
    One who does not directly commit an offense, but “procures, counsels, aids, or abets in
    its commission,” may be punished as if he directly committed the offense. MCL 767.39; People
    v Robinson, 
    475 Mich. 1
    , 5-6; 715 NW2d 44 (2006). Aiding and abetting is not a separate
    offense, but gives rise to vicarious liability for those who assist in the commission of a crime.
    
    Robinson, 475 Mich. at 6
    . A defendant may be convicted of a crime under the theory of aiding
    and abetting if:
    (1) the crime charged was committed by the defendant or some other
    person; (2) the defendant performed acts or gave encouragement that assisted the
    commission of the crime; and (3) the defendant intended the commission of the
    crime or had knowledge that the principal intended its commission at the time that
    [the defendant] gave aid and encouragement. [People v Plunkett, 
    485 Mich. 50
    ,
    61; 780 NW2d 280 (2010) (citations and quotation marks omitted).]
    Presence alone, even with knowledge that an offense is being committed or is going to be
    committed, is not enough to establish aid or encouragement. People v Norris, 
    236 Mich. App. 411
    , 419-420; 600 NW2d 658 (1999).
    “Circumstantial evidence and the reasonable inferences that arise from that evidence can
    constitute satisfactory proof of the elements of the crime.” People v Henderson, 
    306 Mich. App. 1
    , 9; 854 NW2d 234 (2014), citing People v Carines, 
    460 Mich. 750
    , 757; 597 NW2d 130 (1999).
    Further, “[a]n aider and abetter’s knowledge of the principal’s intent can be inferred from the
    facts and circumstances surrounding an event.” People v Bennett, 
    290 Mich. App. 465
    , 474; 802
    NW2d 627 (2010). “Factors that may be considered include a close association between the
    defendant and the principal, the defendant’s participation in the planning or execution of the
    crime, and evidence of flight after the crime.” 
    Carines, 460 Mich. at 758
    (citation and quotation
    marks omitted).
    Defendant testified regarding the events surrounding the robbery and regarding what he
    said during his interview with police. The prosecution played a recording of defendant’s
    interview at trial, and the court admitted the recording into evidence. According to defendant, at
    approximately 12:30 a.m. on August 26, 2013, Collins called and asked defendant for a ride.
    Defendant owned a 1995 Buick Regal, and often gave Collins rides because defendant had a
    valid driver’s license. Defendant testified that when he got home to pick up Collins, Collins was
    heavily intoxicated. Collins asked defendant to pick up a couple of his friends and drive them all
    to Sutton Place, but did not explain why he and his friends needed to go to the apartment
    complex. Defendant had been driving Collins to Sutton Place twice a week because Collins had
    -3-
    friends from school there. Defendant agreed to give Collins a ride, and picked up Smith and
    Marquis Byas, Collins’s friends, along the way. The two got into the back seat of defendant’s
    car and, according to defendant, seemed heavily intoxicated, as well.
    Defendant testified that, as he drove into the apartment complex, he kept asking Collins,
    Smith, and Byas where to go, but they just told him to keep driving. When asked on cross-
    examination how long he drove around, defendant said that he was in the complex for
    approximately five to eight minutes. During his police interview, defendant told detectives that
    he drove through Sutton Place for 8 to 10 minutes before admitting that he actually drove for
    about 15 minutes. While driving, defendant heard someone mention the phrase “hittin’ a lick.”
    At trial, defendant said that, to him, the phrase means drinking liquor. However, defendant was
    also aware that the phrase referred to stealing. Defendant then heard one of the passengers talk
    about liking a specific car, and defendant assumed it was the Charger because that was the only
    car defendant saw running. During his police interview, defendant said that the car Collins,
    Smith, and Byas were going to hit was in the driveway, and that it was a 2013 Charger. When
    defendant had driven about two houses down from White’s driveway, Collins told defendant to
    stop the car, and defendant did.
    As soon as defendant stopped the car, the doors flew open. Defendant said that when
    Collins, Smith, and Byas got out of the car, he knew there was going to be trouble. He saw
    Smith with a black gun, saw Collins with a gun, and heard Byas complain about having a toy
    gun. Defendant also told detectives during his police interview that Smith had a black 38-caliber
    revolver, Collins had the same type of gun, but chrome, and Byas had a plastic gun. At trial,
    defendant testified that he did not know Collins, Smith, and Byas had guns until they were
    getting out of the car. However, during his police interview, defendant told detectives that the
    plastic gun was already in the back seat of his car. In addition, defendant nodded yes when
    asked by detectives if he heard Smith say he had a black gun while he was driving.
    Defendant said he drove away because he did not want to be involved,3 but could see
    what was happening in his rearview mirror. Collins, Smith, and Byas stood in the middle of the
    street, and then suddenly took off towards a long driveway. Not more than a minute later,
    defendant heard gunshots and saw flashes. Defendant then saw Smith and Byas running, but did
    not see Collins. Defendant got out of his car and started walking towards where he had last seen
    Collins. Defense counsel asked defendant on direct examination if he stopped the car because he
    was going to be the getaway driver, and defendant said, “No, sir, not at all.” When asked on
    cross-examination if, after he heard shots and saw Smith and Byas running, he knew they had
    attempted to get White’s car, defendant said, “Yes, from that point.”
    Before defendant could get to Collins, defendant was stopped by a police officer.
    Defendant told the officer he was there to see a friend because he assumed that if he told the
    truth, the officer would link him to the crime. Defendant was placed in the back of a police car,
    3
    During his police interview, defendant said that he was going to leave because Smith, Collins,
    and Byas were going to hit this lick and get the car.
    -4-
    and officers brought White to defendant’s location. When White said defendant was not one of
    the men who approached him, the police told defendant to leave.
    Defendant testified that when he returned to his car, Byas was sitting inside. Byas told
    defendant that Collins had started the shooting, but did not tell defendant what happened to
    Collins4. Byas then demanded that defendant take him somewhere. Defendant testified that he
    told Byas to get out of the car, but did what Byas said because he was not sure if Byas had a gun.
    Byas did not threaten defendant at any time, though. Defendant knew at this point that Byas,
    Smith, and Collins had tried to commit a crime. Defendant dropped Byas off, and then drove
    home. Defendant said that about 30 to 45 minutes later, police came to the house and took him
    into custody. By this time, defendant knew Collins had died.
    At trial, defendant admitted that, during his interview, he lied and told police he drove a
    Ford Focus, and then a “Jimmie.” Defendant also admitted that he lied to police by claiming he
    came home after dropping Collins off at the apartment complex.
    Detective Daryl Palmer, one of the detectives that interviewed defendant, testified that
    defendant was able to articulate where Collins, Smith, and Byas each stood as they approached
    White’s car. Detective Palmer admitted that, during the interview, he told defendant that if he
    were defendant, he would rather be in the witness column than the defendant column, because
    Smith might be charged with first-degree murder, and that is life in prison. The recording also
    shows that Detective Palmer used the words “hit a lick” before they were used by defendant.
    Because it was late at night and defendant drove through the complex for several minutes
    while the passengers in the car discussed “hitting a lick,” a reasonable jury could infer that
    defendant understood Collins, Smith, and Byas did not intend to go to Sutton Place to meet up
    with friends, but intended to commit robbery, instead. It would be reasonable to infer that
    defendant knew that Byas, Collins, and Smith had guns before they got out of his car because of
    defendant’s detailed descriptions of the guns and his statement during his police interview that
    the toy gun was already in the back seat of the car. Also, the fact that defendant remained close
    enough to see portions of the robbery could lead a reasonable jury to believe that defendant
    intended to serve as the getaway driver. In addition, defendant lied to police, both when he was
    stopped by Officer Raby and during his interview, and fled the apartment complex after the
    crime. These facts indicate that defendant attempted to conceal his involvement in the armed
    robbery. See 
    Henderson, 306 Mich. App. at 9
    ; 
    Bennett, 290 Mich. App. at 474
    .
    Defendant testified that it was not until Collins, Smith, and Byas got out of his car that he
    knew there was going to be trouble. Defendant testified that the reason he stopped the car was
    not because he was going to be the getaway driver. He also testified that he did not realize
    Collins, Smith, and Byas had guns until they were already out of his car. Despite defendant’s
    testimony, we will not interfere with the jury’s determinations regarding the weight of the
    evidence or credibility of witnesses. People v McKinney, 
    258 Mich. App. 157
    , 165; 670 NW2d
    4
    However, during his police interview, defendant stated that Byas called him while Byas was
    running away and informed him, “That was Dre shooting.”
    -5-
    254 (2003). Further, “[a]ll conflicts in the evidence must be resolved in favor of the
    prosecution.” People v Kanaan, 
    278 Mich. App. 594
    , 619; 751 NW2d 57 (2008).
    Moreover, even if defendant did not know that Collins, Smith, and Byas intended to
    commit armed robbery as he drove through the apartment complex, sufficient evidence existed
    that defendant knew the crime had been committed when he drove Byas away from the complex.
    During his police interview, defendant drew a picture of the area around White’s driveway, and
    pointed out where Byas, Smith, and Collins were standing as they approached the Charger.
    When asked on cross-examination if, after he heard shots and saw Smith and Byas running, he
    knew they had attempted to get White’s car, defendant said, “Yes, from that point.” Defendant
    still drove Byas to Nine Mile or Ten Mile Road and Beech. Under the transactional theory of
    robbery, then, defendant gained the requisite knowledge of an aider and abettor during the
    commission of an ongoing robbery, and assisted Byas while Byas was still in the course of
    fleeing from the attempted larceny.5 See 
    Bennett, 290 Mich. App. at 474
    ; Chambers, 277 Mich
    App at 7-8. For the reasons discussed above, there was sufficient evidence to convict defendant
    of
    Defendant next argues he was denied the effective assistance of counsel when his
    attorney failed to request a jury instruction on accessory after the fact. We disagree.
    Generally, to preserve a claim of ineffective assistance of counsel, a defendant must file a
    motion for a new trial or a Ginther6 hearing in the trial court to establish evidence supporting the
    claim. People v Sabin (On Second Remand), 
    242 Mich. App. 656
    , 658-659; 620 NW2d 19
    (2000). Defendant did not raise this issue in a motion for a new trial or a Ginther hearing.
    Therefore, the issue is not preserved.
    Claims of ineffective assistance of counsel are mixed questions of law and fact. People v
    Trakhtenberg, 
    493 Mich. 38
    , 47; 826 NW2d 136 (2012). This Court reviews a trial court’s
    findings of fact for clear error, and reviews constitutional questions de novo. 
    Id. The defendant
    must establish a factual predicate for the ineffective assistance of counsel claim. People v Hoag,
    
    460 Mich. 1
    , 6; 594 NW2d 57 (1999). Because defendant did not seek a new trial or Ginther
    hearing, this Court’s review is limited to the appellate record. Sabin (On Second 
    Remand), 242 Mich. App. at 658-659
    .
    Defendant was not denied the effective assistance of counsel when his attorney failed to
    request a jury instruction on accessory after the fact. To evaluate a claim of ineffective
    assistance of counsel, this Court uses the standard established in Strickland v Washington, 466
    5
    This Court has found that serving as a getaway driver may support a robbery conviction under
    the theory of aiding and abetting. See 
    Norris, 236 Mich. App. at 421
    ; People v Martin, 150 Mich
    App 630, 634-635; 389 NW2d 713 (1986). See also People v Smielewski, 
    235 Mich. App. 196
    ,
    207; 596 NW2d 636 (1999) (concluding that a rational trier of fact could reasonably find that the
    defendant acted as a principal or as an aider and abettor in the robbery as a getaway driver).
    6
    People v Ginther, 
    390 Mich. 436
    ; 212 NW2d 922 (1973).
    -6-
    US 668, 687; 
    104 S. Ct. 2052
    ; 
    80 L. Ed. 2d 674
    (1984). 
    Hoag, 460 Mich. at 5-6
    , citing People v
    Pickens, 
    446 Mich. 298
    ; 521 NW2d 797 (1994). For a successful claim of ineffective assistance
    of counsel, the defendant must show: (1) that counsel’s performance was deficient such that it
    “fell below an objective standard of reasonableness and (2) but for counsel’s deficient
    performance, there is a reasonable probability that the outcome would have been different.”
    
    Trakhtenberg, 493 Mich. at 51
    . The effective assistance of counsel is presumed. People v
    Roscoe, 
    303 Mich. App. 633
    , 644; 846 NW2d 402 (2014).
    The common-law crime of accessory after the fact is similar to that of obstruction of
    justice. People v Perry, 
    460 Mich. 55
    , 62; 594 NW2d 477 (1999). Unlike aiding and abetting,
    accessory after the fact is a substantive offense which may be charged under MCL 750.505.
    MCL 750.505 provides:
    Any person who shall commit any indictable offense at the common law,
    for the punishment of which no provision is expressly made by any statute of this
    state, shall be guilty of a felony, punishable by imprisonment in the state prison
    not more than 5 years or by a fine of not more than $10,000.00, or both in the
    discretion of the court.
    Accessory after the fact must be charged separately. See 
    Perry, 460 Mich. at 64
    n 21, citing
    People v Karst, 
    118 Mich. App. 34
    , 41; 324 NW2d 526 (1982). Defendant was charged with
    armed robbery and felony-firearm. Defendant was not charged with accessory after the fact.
    In general, a court must instruct the jury regarding law applicable to the case. MCL
    768.29.7 This includes “all elements of the charged offenses and any material issues, defenses,
    and theories if supported by the evidence.” 
    Henderson, 306 Mich. App. at 4
    , quoting People v
    McGhee, 
    268 Mich. App. 600
    , 606; 709 NW2d 595 (2005).
    Under MCL 768.32(1),8 a jury may find a defendant not guilty of the charged offense, but
    “ ‘guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to
    7
    MCL 768.29 provides:
    It shall be the duty of the judge to control all proceedings during the trial,
    and to limit the introduction of evidence and the argument of counsel to relevant
    and material matters, with a view to the expeditious and effective ascertainment
    of the truth regarding the matters involved. The court shall instruct the jury as to
    the law applicable to the case and in his charge make such comment on the
    evidence, the testimony and character of any witnesses, as in his opinion the
    interest of justice may require. The failure of the court to instruct on any point of
    law shall not be ground for setting aside the verdict of the jury unless such
    instruction is requested by the accused.
    -7-
    commit that offense.’ ” People v Jones, 
    497 Mich. 155
    , 162-163; 860 NW2d 112 (2014), quoting
    MCL 768.32(1). In Cornell, “this Court concluded that a defendant is entitled to a lesser offense
    instruction only if that lesser offense is necessarily included in the greater offense; that is, the
    offense must be committed as part of the greater offense insofar as it would be ‘impossible to
    commit the greater offense without first committing the lesser offense.’ ” 
    Id. at 164,
    quoting
    
    Cornell, 466 Mich. at 361
    . In other words, “[n]ecessarily included lesser offenses are offenses in
    which the elements of the lesser offense are completely subsumed in the greater offense.”
    People v Nickens, 
    470 Mich. 622
    , 626; 685 NW2d 657 (2004) (citation and quotation marks
    omitted). Cognate lesser offenses may not be considered. 
    Jones, 497 Mich. at 164
    , citing
    
    Cornell, 466 Mich. at 353-355
    .
    Accessory after the fact cannot be considered a necessarily included lesser offense of
    armed robbery or felony-firearm. As stated above, the elements of armed robbery are:
    (1) the defendant, in the course of committing a larceny of any money or other
    property that may be the subject of a larceny, used force or violence against any
    person who was present or assaulted or put the person in fear, and (2) the
    defendant, in the course of committing the larceny, either possessed a dangerous
    weapon, possessed an article used or fashioned in a manner to lead any person
    present to reasonably believe that the article was a dangerous weapon, or
    represented orally or otherwise that he or she was in possession of a dangerous
    weapon. 
    [Chambers, 277 Mich. App. at 7-8
    , citing CJI2d 18.1.]
    Felony-firearm requires “ ‘that the defendant possessed a firearm during the commission of, or
    the attempt to commit, a felony.’ ” People v Johnson, 
    293 Mich. App. 79
    , 82-83; 808 NW2d 815
    (2011), quoting People v Avant, 
    235 Mich. App. 499
    , 505; 597 NW2d 864 (1999). An accessory
    after the fact is a person “ ‘who, with knowledge of the other’s guilt, renders assistance to a felon
    in the effort to hinder his detection, arrest, trial or punishment.’ ” 
    Perry, 460 Mich. at 62
    , quoting
    Perkins, Criminal Law (2d ed), p 667, quoted in People v Lucas, 
    402 Mich. 302
    , 304; 262 NW2d
    662 (1978). Reviewing the elements of each offense, it would be possible to commit both armed
    robbery and felony-firearm without first committing accessory after the fact. Therefore, the
    court could not have permitted a jury instruction regarding accessory after the fact, and defense
    8
    MCL 768.32(1) provides:
    Except as provided in subsection (2), upon an indictment for an offense,
    consisting of different degrees, as prescribed in this chapter, the jury, or the judge
    in a trial without a jury, may find the accused not guilty of the offense in the
    degree charged in the indictment and may find the accused person guilty of a
    degree of that offense inferior to that charged in the indictment, or of an attempt
    to commit that offense.
    -8-
    counsel was not ineffective for failing to request such an instruction since defense counsel need
    not make a meritless argument. See People v Ericksen, 
    288 Mich. App. 192
    , 201; 793 NW2d 120
    (2010) (explaining that the defense counsel need not make a meritless request).
    Affirmed.
    /s/ Kathleen Jansen
    /s/ William B. Murphy
    /s/ Michael J. Riordan
    -9-