People of Michigan v. Marcus Allen Howell ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 11, 2019
Plaintiff-Appellee,
v No. 341383
Genesee Circuit Court
MARCUS ALLEN HOWELL, LC No. 15-038144-FC
Defendant-Appellant.
Before: METER, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his convictions for first-degree criminal sexual conduct
(CSC-I), MCL 750.520b; assault with intent to murder (AWIM), MCL 750.83; three counts of
armed robbery, MCL 750.529; first-degree home invasion, MCL 750.110a(2); and six counts of
possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b. We
affirm defendant’s convictions, but remand for the correction of errors in the judgment of
sentence.
I. BACKGROUND
Defendant’s convictions result from a home invasion that occurred during the early
morning hours of August 5, 2012. Three individuals—Patrick Boven, Randy Phillips, and Leah
Hopkins—lived in the home. Boven and Phillips were murdered by gunshots to the head. The
intruder assaulted Hopkins, but she was eventually able to escape to safety. She testified that she
was sleeping in the basement of the home when she was awakened by someone opening the
basement door. She tried to get out of her bed, but a man came running down the stairs at her,
punching her in the head. The man ran between the downstairs and main levels of the home
several times. Each time he returned to the basement, the man would assault Hopkins so that she
could not leave. The man punched her approximately twenty times in the face, strangled her,
and hit her in the head with a heavy television set. Hopkins testified that the man demanded
money and was tossing her belongings around the basement.
According to Hopkins, at some point during the attack, the man sexually assaulted her.
Hopkins submitted to a rape kit which returned DNA matching defendant’s DNA profile.
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Hopkins also testified that the man tried to kill her by slitting her throat with a knife. After the
man slit her throat, he put his coat on and walked up the stairs while “grinning at” Hopkins “like
he did something really good.” Hopkins testified that the man carried a gun, but she did not hear
any gunshots. After the man walked up the stairs, Hopkins fled the home to the safety of a
neighbor’s house. Police officers later discovered the bodies of Boven and Phillips, each killed
by a gunshot to the head. Both men’s rooms were ransacked and officers could not locate a
wallet for either man. Similarly, Hopkins testified that her wallet was missing after the attack.
Defendant was charged with two counts of first-degree murder, MCL 750.316, one count
of CSC-I, one count of AWIM, three counts of armed robbery, one count of first-degree home
invasion, and eight counts of felony-firearm. The jury found defendant not guilty of the two
murders and the related felony-firearm counts, but found him guilty of each of the remaining
counts. The trial court sentenced defendant to prison terms of 225 months to 75 years for his
CSC-I, AWIM, and three armed-robbery convictions, 95 months to 20 years for his first-degree
home-invasion conviction, and two years for each felony-firearm conviction. This appeal
followed.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
On appeal, defendant first argues that the prosecution presented insufficient evidence to
convict him of three counts of armed robbery. Challenges to the sufficiency of the evidence are
reviewed de novo. People v Solloway, 316 Mich. App. 174, 180; 891 NW2d 255 (2016). The
reviewing court must determine if, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could find that the prosecution proved each essential element
of the crime beyond a reasonable doubt. People v Reese, 491 Mich. 127, 139; 815 NW2d 85
(2012). “[C]ircumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” People v James, ___ Mich App ___,
___; ___ NW2d ___ (2019) (Docket No. 339504); slip op at 4 (internal citation and quotation
marks omitted). A trier of fact may consider circumstantial evidence and all reasonable
inferences that the evidence creates. Solloway, 316 Mich. App. at 180-181. “It is for the trier of
fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence
and to determine the weight to be accorded those inferences.” People v Flick, 487 Mich. 1, 24-
25; 790 NW2d 295 (2010) (internal citation and quotation marks omitted).
To obtain a conviction of armed robbery under MCL 750.529, the prosecutor must
establish:
(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; 742 NW2d 610 (2007).]
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Defendant argues that the prosecution presented insufficient evidence to establish a completed
larceny and that, in the absence of a completed larceny, he cannot be found guilty of armed
robbery. We disagree. Notably, the phrase “in the course of committing a larceny” is statutorily
defined to include “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.” MCL 750.530(2). Contrary to defendant’s arguments on
appeal, a completed larceny is not an element of armed robbery; rather, an attempted larceny is
sufficient to support a conviction of armed robbery. People v Williams, 491 Mich. 164, 172; 814
NW2d 270 (2012).
Viewing the evidence in a light most favorable to the prosecutor, the evidence was
sufficient to support the conclusion that defendant attempted or completed a larceny against each
victim. Specifically, the surviving victim testified that defendant rifled through her belongings
in the basement while asking “where’s your money, where’s your money.” Upstairs, the drawers
in one man’s bedroom were open. The other man’s bedroom appeared “disheveled” or
“ransacked,” and both bedrooms appeared to “have been gone through.” Viewed in a light most
favorable to the prosecutor, this evidence supports the conclusion that—even if defendant was
unsuccessful in finding money or other items to steal—he attempted to complete a larceny
against each victim.
Moreover, contrary to defendant’s argument, the jury could reasonably have concluded
that defendant did in fact steal items from each victim. Hopkins testified that defendant
demanded money from her and that she witnessed defendant pick up her wallet. She was unable
to locate her wallet after the assault. Similarly, although the record revealed that both male
victims kept their wallets close to them, neither victim’s wallet could be located after the home
invasion. Under the circumstances of this case, a jury could reasonably conclude that defendant
stole the wallets. See, e.g., People v Bowman, 254 Mich. App. 142, 152-153; 656 NW2d 835
(2002). The evidence was sufficient to convict defendant of three armed robberies.
B. EVIDENCE SUPPRESSION
Next, defendant argues that the prosecution violated his due-process rights by
withholding “extra judicial” statements made by three witnesses to police officers before trial.
Under Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963), “the suppression by
the prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” People v Chenault, 495 Mich. 142, 149; 845 NW2d 731 (2014) (internal
citation and quotation marks omitted). A Brady violation occurs when “(1) the prosecution has
suppressed evidence; (2) that is favorable to the accused; and (3) that is material.” Id. at 150.
“To establish materiality, a defendant must show that there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (internal citation and quotation marks omitted).
Defendant concedes that he was provided with police reports about witness interviews,
but argues that the prosecution suppressed “actual statements,” audio recordings, and “waiver
forms” that he could have used to impeach witnesses. Defendant, however, has offered no
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evidence regarding the content of these alleged statements and, having reviewed the record we
are unable to find as much. Defendants bears the burden of establishing the factual predicate for
his claim and, without any showing regarding the content of the allegedly suppressed statements,
we are unable to conclude that these statements, had they been released to defendant, would have
resulted in a different outcome. People v Elston, 462 Mich. 751, 762; 614 NW2d 595 (2000).
Accordingly, defendant’s claim is without merit.1
C. COERCED TESTIMONY
Defendant argues that the prosecution violated his due-process rights by coercing Bobby
Person, to testify against him.2 Witness intimidation by the prosecutor has been strongly
condemned, and threats by law enforcement officers against witnesses may be attributed to the
prosecutor. People v Hill, 257 Mich. App. 126, 135; 667 NW2d 78 (2003); People v Stacy, 193
Mich. App. 19, 25; NW2d 675 (1992). “Attempts by the prosecution to intimidate witnesses from
testifying, if successful, amount to a denial of a defendant’s constitutional right to due process of
law.” Hill, 257 Mich. App. at 135.
At trial, Person testified that defendant told him that he had murdered two people and slit
a woman’s throat. Person also testified at two preliminary hearings. At the first hearing, Person
denied discussing the crimes with defendant, but, at the second hearing, Person testified
consistent with his trial testimony. At trial, Person explained that he was initially reluctant to
implicate someone close to him but that he had spoken with an attorney and decided to testify
truthfully. At trial, Person denied that the police threatened him or suggested that he could be
charged criminally if he did not testify. Later, however, Person testified that police told him that
they were “going to give [him] more time if [he] didn’t say nothing.” Person was never charged
but “guess[ed]” that he could be charged as an “accessory or something” because of his contact
with defendant. The trial court instructed the jury on judging witness credibility, indicating that
it could consider whether the witness had any bias or reason to lie.3 During closing arguments,
1
We note that defendant moved this Court to remand for an evidentiary hearing pertaining to the
prosecutor’s alleged suppression of extrajudicial statements, and we denied his request. People v
Howell, unpublished order of the Court of Appeals, entered November 16, 2018 (Docket No.
341383). In connection with defendant’s motion, he failed to make an offer of proof to support
his assertion that these items were withheld from him, that these items were favorable to him,
and that these items were material. See Chenault, 495 Mich. at 149-150. In other words,
defendant has failed to show the need for further factual development on this issue.
2
In making this argument, defendant also appears to argue that police officers violated Person’s
constitutional rights by compelling him to testify. Yet, “[a]s a general rule, one does not have
standing to raise issues involving the violation of the rights of others.” People v Russell, 266
Mich. App. 307, 314; 703 NW2d 107 (2005).
3
To the extent defendant challenges the trial court’s jury instructions, he waived this argument
when his counsel expressed approval of the instructions at trial. See People v Kowalski, 489
Mich. 488, 503; 803 NW2d 200 (2011).
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defense counsel used Person’s claim of police pressure to argue that Person’s testimony
incriminating defendant should not be believed.
Defendant maintains that the police coerced Person’s cooperation and that the trial court
should have sua sponte ordered the jury to disregard this evidence. We disagree. While some
evidence tended to indicate that officers coerced Person into testifying, other evidence indicated
that Person testified by his own volition, consistent with his attorney’s advice. Indeed, Person
testified that he was initially reluctant to implicate defendant, but that his trial testimony was the
truth. Where, as here, the evidence for and against coercion is properly laid before the jury, there
was no concern that the jury would not be able to perform “its traditional role of assessing
credibility.” Stacy, 193 Mich. App. at 28. In short, presenting the question to the jury satisfied
defendant’s right to due process. Defendant’s argument is without merit.4
D. JUDGMENT OF SENTENCE
Finally, both parties ask that we remand this case to the trial court to correct errors in the
judgment of sentence. Because these issues were not raised below, our review is for plain error
affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
Questions of law are reviewed de novo. People v Howell, 300 Mich. App. 638, 644; 834 NW2d
923 (2013).
Regarding the consecutive nature of the sentences, the judgment states:
[Felony-firearm sentence] TO BE SERVED CONSECUTIVE TO [armed-robbery
and home-invasion sentences]. [Home-invasion sentence] TO BE SERVED
CONSECUTIVE TO [CSC-I, AWIM, and armed-robbery sentences] & [the
felony-firearm sentence].
The prosecution argues that the judgment of sentence contains an error because, although it
states that defendant’s felony-firearm sentence is consecutive to his armed-robbery and home-
invasion sentences, it does not state that defendant’s felony-firearm sentence should also be
consecutive to the sentences for CSC-I and AWIM. We agree. Although below, the trial court
and the parties appeared to treat the felony-firearm sentence as a single sentence for one
conviction, defendant was actually convicted of a separate felony-firearm offense in connection
with each of his other offenses. The judgment should be amended to provide that defendant’s
felony-firearm sentences run concurrent to each other, but consecutive to the sentences for their
predicate felonies—including the CSC-I and AWIM convictions. Moreover, as defendant points
out, the judgment should reflect that the felony-firearm sentences precede the sentences for the
predicate felonies. See MCL 750.227b(3) (stating that a term of imprisonment imposed for a
felony-firearm conviction “is in addition to the sentence imposed for the conviction of the felony
4
We also reject defendant’s assertion that his attorney was ineffective for failing to move to
exclude Person’s testimony. “[T]rial counsel cannot be faulted for failing to raise an objection or
motion that would have been futile.” People v Fike, 228 Mich. App. 178, 182; 577 NW2d 903
(1998).
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or the attempt to commit the felony and shall be served consecutively with and preceding any
term of imprisonment imposed for the conviction of the felony or attempt to commit the
felony.”) (Emphasis added).
Next, the prosecution argues that the jail credit in the judgment of sentence is incorrect.
The judgment of sentence states that defendant had 730 days of jail credit toward his felony-
firearm sentences and 105 days jail credit toward each of his other sentences. According to the
prosecutor, because defendant’s home-invasion sentence is consecutive to the other sentences,
the 105 days of jail credit applied toward defendant’s home-invasion conviction should not have
been applied to defendant’s convictions for CSC-I, AWIM, and armed robbery. We agree.
When sentences are concurrent, jail credit is properly applied to each sentence. See People v
Williams, 294 Mich. App. 461, 478; 811 NW2d 88 (2011). Nonetheless, when consecutive
sentencing is imposed, a defendant is not entitled to “double credit.” People v Cantu, 117 Mich
App 399, 403; 323 NW2d 719 (1982). Rather, credit should be applied only toward the first
sentence of the consecutive sentences. Id. Thus, because defendant’s home-invasion sentence
runs consecutive to his sentences for CSC-I, AWIM, and armed robbery, the trial court should
not have applied the 105 day credit to the latter sentences. Accordingly, on remand, the
judgment of sentence should be corrected to reflect that defendant is only entitled to 105 days
credit toward the first of his consecutive sentences for home invasion, CSC-I, AWIM, and armed
robbery.
Finally, the prosecution argues that the judgment of sentence incorrectly states that the
murder charges were dismissed by “a party.” In actuality, next to the murder charges on the
judgment of sentence there is a “D,” which, according to the form, indicates that the charges
were “dismissed by court.” It would perhaps be more accurate for the form to state “not guilty,”
but, as written, the form includes no option for “not guilty” and “D” for dismissed by the court
appears to be the most accurate descriptor available. See generally MCR 6.427 (“If the
defendant was found not guilty or for any other reason is entitled to be discharged, the court must
enter judgment accordingly.”). Thus, as constrained by the judgment form, the “D” indicator is
not erroneous.
III. CONCLUSION
We affirm defendant’s convictions, but remand for correction of errors in the judgment of
sentence, consistent with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Kathleen Jansen
/s/ Michael J. Kelly
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