People of Michigan v. Perry Stanley ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 25, 2019
Plaintiff-Appellee,
v No. 340464
Wayne Circuit Court
PERRY STANLEY, LC No. 17-003086-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 340465
Wayne Circuit Court
PERRY STANLEY, LC No. 17-003087-01-FC
Defendant-Appellant.
Before: CAMERON, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions in two separate cases that were
consolidated for trial. In Docket No. 340464, defendant appeals his convictions of armed
robbery, MCL 750.529, assault with intent to do great bodily harm less than murder, MCL
750.84, carrying a concealed weapon (CCW), MCL 750.227, and two counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. In Docket No.
340465, defendant appeals his convictions of conspiracy to commit armed robbery, MCL
750.157a & MCL 750.529, armed robbery, and felony-firearm. In Docket No. 340464, the court
sentenced defendant to prison terms of 14 to 30 years for the armed robbery conviction, 5 to 10
years for the assault conviction, one to five years for the CCW conviction, and two years for
each felony-firearm conviction. In Docket No. 340465, the court sentenced defendant to prison
terms of 10 to 30 years each for the conspiracy and armed robbery convictions, and two years for
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the felony-firearm conviction.1 For the reasons set forth in this opinion, we reverse defendant’s
conviction and sentence for conspiracy to commit armed robbery, and remand for the purposes
of correcting the judgment of sentence. In all other aspects we affirm.
I. BACKGROUND
These cases arise from two armed robberies that occurred on the evening of December
16, 2016, in Detroit. At trial, the prosecution presented evidence that defendant approached
Hosea Hyman Perez Ortiz (Perez) as Perez was returning to his house, robbed him at gunpoint,
and then shot him in the back. A little while later, as Gladiola Vasquez Hernandez (Vasquez)
was returning to her home, defendant robbed her at gunpoint and hit her in the face with the gun.
Vasquez observed defendant get into the driver’s seat of a vehicle that was occupied by at least
two other individuals. After a border agent sighted a vehicle matching Vasquez’s description
and ran the license plate number, they obtained the address of defendant’s father, Prentice Russ,
to whom the vehicle was registered. When the vehicle returned to Russ’s residence on Lesure
Street in Detroit, defendant, Russ, and defendant’s brother got out of the vehicle. No weapons or
evidence related to the robberies were found.
At trial, Perez testified that he did not recognize defendant while he was being robbed,
but after police showed him a photographic lineup he realized that he knew defendant. Perez
identified defendant in the photographic lineup and at trial as the man who robbed him.
Similarly, Vasquez identified defendant in a photographic lineup and at trial as the man who
robbed her. Defendant did not testify or present any witnesses at trial. The defense theory at
trial was misidentification. Defendant was convicted of armed robbery, assault with intent to do
great bodily harm less than murder, CCW, and two counts of felony-firearm related to Perez, and
conspiracy to commit armed robbery, armed robbery, and felony-firearm related to Vasquez.
Defendant was sentenced as indicated above, and now brings this appeal as of right.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant first argues that he was denied the effective assistance of counsel
by defense counsel’s failure to (1) present an alibi defense after filing an alibi notice, and (2)
request the appointment of an expert on eyewitness identification evidence.
“Generally, whether a defendant had the effective assistance of counsel is a mixed
question of fact and constitutional law. This Court reviews findings of fact for clear error and
questions of law de novo.” People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012)
(quotation marks and citations omitted). However, because defendant did not raise his claims of
ineffective assistance of counsel in a motion for a new trial or request for an evidentiary hearing
in the trial court, our review of this issue “is limited to mistakes apparent from the record.” Id.
In Heft, this Court stated:
1
The sentences in both cases run concurrently with one another, with the felony-firearm
sentences all running concurrently with one another and consecutive to the other sentences.
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A criminal defendant has the fundamental right to effective assistance of
counsel. However, it is the defendant’s burden to prove that counsel did not
provide effective assistance. To prove that defense counsel was not effective, the
defendant must show that (1) defense counsel’s performance was so deficient that
it fell below an objective standard of reasonableness and (2) there is a reasonable
probability that defense counsel’s deficient performance prejudiced the defendant.
The defendant was prejudiced if, but for defense counsel’s errors, the result of the
proceeding would have been different. [Id. at 80-81 (citations omitted).]
“Because the defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his
claim.” People v Jackson (On Reconsideration), 313 Mich. App. 409, 432; 884 NW2d 297 (2015)
(quotation marks and citation omitted).
A. FAILURE TO PRESENT AN ALIBI DEFENSE
First, defendant argues that defense counsel provided ineffective assistance by failing to
present an alibi defense at trial after he previously filed an alibi notice and identified the alibi
witnesses for the jury during voir dire. The defense filed a “Notice Of Alibi” on July 24, 2017.
According to defendant, the notice listed four alibi witnesses who would have testified that
defendant was with them at an address on Barton Street until 10:30 p.m. on December 16, 2016.
At the start of the trial, the trial court listed “witnesses who may be called during this trial” and
asked the potential jurors whether they knew any of the named witnesses. The trial court’s list
included the four alibi witnesses’ names.2 At trial, however, defense counsel did not call any
witnesses to testify.
As stated by this Court in People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714
(2009):
An attorney’s decision whether to retain witnesses, including expert
witnesses, is a matter of trial strategy. A defendant must meet a heavy burden to
overcome the presumption that counsel employed effective trial strategy. In
general, the failure to call a witness can constitute ineffective assistance of
counsel only when it deprives the defendant of a substantial defense. [Quotation
marks and citations omitted.]
This Court will not substitute its judgment for that of counsel on matters of trial strategy, nor will
it use the benefit of hindsight when assessing counsel’s competence. Id.
2
Contrary to defendant’s assertions, the trial court, not defense counsel, named the witnesses for
the potential jurors. Furthermore, the potential witnesses were not identified as alibi witnesses.
Thus, defendant’s claim that defense counsel’s failure to call those witnesses was “tantamount to
a concession of guilt” is without merit.
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Defendant fails to overcome the presumption that defense counsel’s decision not to call
the alibi witnesses at trial was sound trial strategy. Defense counsel indicated on the record at
trial that the defense intended to rest without calling any witnesses, stating:
I’ve had many occasions to speak with my young client about his absolute
right to testify, and indeed produce witnesses. The Court ordered that an
Investigator be appointed, we’ve secured statements from several witnesses. As a
strategic matter, the defense lawyer’s not going to call these witnesses.
Thereafter, the trial court asked defendant whether he had heard what defense counsel had said,
and defendant said yes. Defendant then waived his right to testify. Even though defendant did
not expressly state his agreement with the decision not to call any witnesses, defense counsel’s
statements establish that he obtained statements from witnesses and that his decision not to
present an alibi defense was a matter of strategy. Instead of presenting an alibi defense, defense
counsel proceeded on a theory of false or mistaken identification. Because it is apparent from
the record that defense counsel elected not to call witnesses in support of an alibi defense as a
matter of trial strategy, and defendant has not presented any evidence to overcome the
presumption of sound strategy, defendant fails to establish that defense counsel’s performance
fell below an objective standard of reasonableness. Accordingly, defendant is not entitled to
relief on this issue.
B. FAILURE TO REQUEST THE APPOINTMENT OF AN EXPERT
Defendant also argues that defense counsel was ineffective for failing to request the
appointment of an expert on eyewitness identification. The prosecution’s case at trial was based
on the victims’ identifications of defendant, and the defense theory was mistaken identification.
However, defendant again fails to overcome the presumption that defense counsel’s decision not
to retain an expert witness was sound trial strategy. Principally, defendant fails to establish the
factual predicate for his claim. Defendant argues that an expert could have testified about the
unreliability of eyewitness identification, including how the stress of the event made it less likely
that the identifications were reliable. While defendant relies on numerous studies, treatises, and
reports, he fails to offer any affidavit from an expert or some other offer of proof that an expert
witness would have testified in the manner he alleges or in any manner favorable to the defense.
There is nothing provided on appeal from which we could glean a rationale or basis for a finding
that the retention and testimony of such an expert witness would have had an impact on the result
of these proceedings or that the failure to procure such an expert resulted in prejudice to
defendant. Thus, even presuming that defendant was ineffective for failing to provide an expert
on identification, defendant has not established a reasonable probability that, but for counsel’s
alleged error, the result of the proceedings would have been different. See People v Ackerman,
257 Mich. App. 434, 455-456; 669 NW2d 818 (2003).
II. RIGHT TO A PUBLIC TRIAL
Next, defendant contends that the trial court erred by excluding his mother from the
courtroom during part of the trial, in violation of his Sixth Amendment right to a public trial.
Defendant failed to preserve his claim that the trial court violated his Sixth Amendment right to a
public trial by objecting in the trial court. See People v Vaughn, 491 Mich. 642, 646; 821 NW2d
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288 (2012). Thus, our review is for plain error affecting defendant’s substantial rights. Id. at
664-665. Defendant must show “(1) that the error occurred, (2) that the error was ‘plain,’ (3)
that the error affected substantial rights, and (4) that the error either resulted in the conviction of
an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 665 (citation omitted).
On the second day of trial, the prosecutor stated that she was informed that, after the end
of the first day of trial, individuals heard defendant’s mother yelling at defense counsel in the
hallway and Juror Number 5 was present. Defense counsel told defendant’s mother that they
needed to “go over here” because there was a juror present. The prosecutor believed that she
heard defendant’s mother yell, “well you know what, it doesn’t matter anyway, because half
those juries live in my community, and I know them.” The trial court agreed to question Juror
Number 5 regarding what he had heard. The trial court also questioned defendant’s mother,
Katrina Stanley, who indicated that she understood that she could not yell outside the courtroom
because of the presence of jurors, but stated that she had not seen the juror. She denied saying
“half of those jurors,” and told the trial court that she had said that one of the jurors looked
familiar. The trial court told Katrina that her behavior was inappropriate and asked her to leave
the courtroom and the building until the trial was over. The trial court warned the other members
of the public not to “talk or be in sight of” any juror and that “if anybody else does that, there’s
going to be just as serious, if not more serious consequences.” Thereafter, the trial court and the
attorneys questioned Juror Number 5, but he was not dismissed from the jury.
The Sixth Amendment of the United States Constitution and Const 1963, article 1, § 20
guarantee the right to a public trial. Vaughn, 491 Mich. at 650. As stated in Vaughn:
A defendant’s Sixth Amendment right to a public trial is limited, and there
are circumstances that allow the closure of a courtroom during any stage of a
criminal proceeding, even over a defendant’s objection:
[T]he party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, the closure must
be no broader than necessary to protect that interest, the trial court
must consider reasonable alternatives to closing the proceeding,
and it must make findings adequate to support the closure. [Id. at
653 (quotation marks and citation omitted).]
“[I]t does not follow that every temporary instance of unjustified exclusion of the public—no
matter how brief or trivial, and no matter how inconsequential the proceedings that occurred
during an unjustified closure—would require that a conviction be overturned.” Id. at 667
(quotation marks and citation omitted). The right to a public trial serves the goals of “(1)
ensuring a fair trial, (2) reminding the prosecution and court of their responsibility to the accused
and the importance of their functions, (3) encouraging witnesses to come forward, and (4)
discouraging perjury.” Id. Only a substantial, rather than a compelling, reason in required for a
partial closures. People v Gibbs, 299 Mich. App. 473, 481; 830 NW2d 821 (2013).
MCR 8.116(D)(1), which governs access to court proceedings, provides:
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Except as otherwise provided by statute or court rule, a court may not limit
access by the public to a court proceeding unless
(a) a party has filed a written motion that identifies the specific interest to
be protected, or the court sua sponte has identified a specific interest to be
protected, and the court determines that the interest outweighs the right of access;
(b) the denial of access is narrowly tailored to accommodate the interest to
be protected, and there is no less restrictive means to adequately and effectively
protect the interest; and
(c) the court states on the record the specific reasons for the decision to
limit access to the proceeding.
In Presley v Georgia, 558 U.S. 209, 210; 130 S. Ct. 721; 175 L. Ed. 2d 675 (2010), the trial
court excluded the lone courtroom observer, the defendant’s uncle, from the courtroom during
voir dire, citing concerns about space. The trial court indicated that the observer could return
after voir dire. Id. At a hearing on the defendant’s motion for a new trial, defendant showed that
there would have been adequate room for the public in the courtroom. Id. at 210-211. The
Supreme Court concluded that the trial court failed to take every reasonable measure to
accommodate public attendance at criminal trials by failing to consider alternatives to closure.
Id. at 215. The Court further stated that “even assuming, arguendo, that the trial court had an
overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable
alternatives to closure.” Id. at 216.
We begin our analysis of this issue by applying the factors set forth by our Supreme
Court in Vaughn. Applying those factors we conclude: “(1) that the error occurred, (2) that the
error was ‘plain,’ (3) that the error affected substantial rights.” Id. at 665 (citation omitted).
Here, the trial court excluded defendant’s mother without first considering any reasonable
alternatives to her exclusion from the courtroom and the courthouse. The failure to consider
alternatives to closure is error under Presley. 558 U.S. at 216. Additionally, the trial court made
no finding as to whether the exclusion of defendant’s mother would be broader than necessary to
protect the interests the trial court had in preventing inappropriate behavior in front of jurors3. In
sum, the trial court failed to follow MCR 8.116(D)(1). Accordingly, error occurred and the error
was plain. As to the third factor in Vaughn, because we are dealing with unpreserved structural
error, our Supreme Court instructed us in People v Duncan 462 Mich. 47, 51; 610 NW2d 551
(2000), that such errors "are intrinsically harmful, without regard to their effect on the outcome .
. . " See also, Vaughn, 491 Mich. at 666. Accordingly, our caselaw suggests that a plain structural
error satisfies the third Vaughn prong. Left open then is the question of whether “ the error
3
We note that the trial court never specifically stated its explicit basis for its exclusion of
defendant’s mother. However, our review of the trial court’s statements lead us to conclude that
the trial court’s chief concern was preventing improper behavior by defendant’s mother and
deterring others from engaging in similar disruptive conduct in front of the jury.
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either resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 665.
In Vaughn, our Supreme Court set forth the standard of review to be utilized when
deciding this issue:
Nevertheless, even if defendant can show that the error satisfied the first
three Carines requirements, we "must exercise . . . discretion" and only grant
defendant a new trial if the error "resulted in the conviction of an actually
innocent defendant" or seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Although denial of the right to a public trial is
a structural error, it is still subject to this requirement. While "any error that is
'structural' is likely to have an effect on the fairness, integrity or public reputation
of judicial proceedings," the plain-error analysis requires us to "consider whether
an error 'seriously' affected those factors." Id.at 666-667. (internal citations
omitted).
We therefore set forth to determine whether exclusion of defendant’s mother from the
courtroom resulted in an actually innocent defendant being convicted or that her removal
seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
A. Denial of Defendant’s Claim will not Result in an Actually Innocent Defendant being
Convicted.
In keeping with our Supreme Court’s mandate, we review the trial court record to
determine if the error resulted in the conviction of an actually innocent defendant. Our review of
the record does not lead us to any factual or legal connection between the exclusion of
defendant’s mother from the courtroom and the jury’s verdict. Further, there is nothing within
the record which leads us to conclude that defendant did not receive a fair trial based on the
exclusion of his mother. Rather, our review leads us to conclude that based on the record
evidence produced, there was sufficient evidence from which a rational jury could conclude
beyond a reasonable doubt that defendant committed the offenses for which he had been
charged. Both victims identified defendant from a photographic lineup and at trial. One of the
victims realized he knew defendant after viewing the photographic lineup. During all stages of
proceedings in this matter, neither victim wavered in either their descriptions of events or in their
description and identification of defendant. On this record, we are not presented with any basis
from which we may conclude that an actually innocent defendant was convicted in this case.
Hence, we turn to whether exclusion seriously affected the fairness, integrity or public reputation
of the proceedings.
B. Exclusion of Defendant’s Mother did not Seriously Affect the Fairness, Integrity, or
Public Reputation of Judicial Proceedings.
Next we examine if the trial court’s exclusion of defendant’s mother seriously affected
the fairness, integrity, or public reputation of judicial proceedings. Anytime a trial court
excludes a member of the public and does so in violation of court rule and our Constitutions,
there will, of course, be some affect as to the fairness, integrity, or public reputation of judicial
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proceedings. However, the issue presented here is whether the exclusion seriously affected the
fairness, integrity, or public reputation of judicial proceedings. To answer, we again turn to the
record evidence presented.
We note that our examination of this issue is independent from our conclusions as to
defendant’s guilt as to the charged offenses. Indeed, the objective of our analysis is to ensure
that during the proceedings, defendant was afforded the protections of the Sixth Amendment,
irrespective of his guilt or innocence. As stated, in Vaughn, the goals sought by these protections
include (1) ensuring a fair trial, (2) reminding the prosecution and court of their responsibility to
the accused and the importance of their functions, (3) encouraging witnesses to come forward,
and (4) discouraging perjury. Vaughn, 491 Mich. at 667. After review of the record, we cannot
find any evidence, and defendant has not alerted us to any evidence, which would lead us to
conclude that defendant was denied any of these goals.
We note that our presumed basis for defendant’s mother being excluded from the
courthouse was to discourage improper behavior and conduct in front of the jury. Such a
rationale supports a finding that the trial court was seeking to protect important interests, namely
the orderly running of the trial coupled with the freedom from fear for jurors to render their
verdict based on the evidence and not how their verdict will impact singular members of their
community. However, as we have already held, based on the lack of a record as to its reasons,
removal of defendant’s mother, was likely broader than necessary to protect that interest.
However, our earlier holding of error does not preclude us from also holding that the trial court,
in ordering the removal of defendant’s mother from the courtroom, was seeking to protect these
important interests.
Additionally, we note that at the time of the removal, the remaining witnesses who were
called to testify were police officers who were aware of their obligations to come forward and
testify truthfully. Further, there were no additional restrictions as to members of the public
gaining access to the proceedings, and nothing within the record indicates that any of the
witnesses called after exclusion of defendant’s mother from the courtroom testified in a manner
inconsistent with their reports or prior testimony.
The record therefore reveals that there existed a legitimate basis to seek the removal of
defendant’s mother from the courtroom. Further, based on the mother’s conduct, we can envision
a scenario where defendant’s mother could have been lawfully removed from the courtroom
based on her behavior—as a deterrent to her and to others not to engage in such antics. Hence,
examination of the record as a whole leads us to conclude that---whether defendant was actually
innocent or guilty of the charges against him---exclusion of defendant’s mother from the
courtroom midway through the trial did not deprive defendant of the of the protections conferred
by the Sixth Amendment. Accordingly, we cannot find that exclusion of defendant’s mother
midway through the trial seriously affected the fairness, integrity, or public reputation of judicial
proceedings. Defendant is not entitled to relief on this issue.
III. JOINDER
Defendant next argues that the trial court erred by permitting the prosecution to join two
separate criminal incidents into a single prosecution for trial.
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In People v Williams, 483 Mich. 226, 231; 769 NW2d 605 (2009), our Supreme Court
stated:
Generally, this Court reviews questions of law de novo and factual
findings for clear error. The interpretation of a court rule, like matters of statutory
interpretation, is a question of law that we review de novo. To determine whether
joinder is permissible, a trial court must first find the relevant facts and then must
decide whether those facts constitute “related” offenses for which joinder is
appropriate. Because this case presents a mixed question of fact and law, it is
subject to both a clear error and a de novo standard of review. [Citations
omitted.]
MCR 6.120(B), which governs postcharging permissive joinder, provides:
On its own initiative, the motion of a party, or the stipulation of all parties,
except as provided in subrule (C), the court may join offenses charged in two or
more informations or indictments against a single defendant, or sever offenses
charged in a single information or indictment against a single defendant, when
appropriate to promote fairness to the parties and a fair determination of the
defendant’s guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain
on the parties’ resources, the potential for confusion or prejudice stemming from
either the number of charges or the complexity or nature of the evidence, the
potential for harassment, the convenience of witnesses, and the parties’ readiness
for trial.
(3) If the court acts on its own initiative, it must provide the parties an
opportunity to be heard.
Accordingly, “[o]ffenses are ‘related’ if they comprise either ‘the same conduct’ or ‘a
series of connected acts or acts constituting part of a single scheme or plan.’ ” Williams, 483
Mich. at 233 (citation omitted).4 The Williams Court explained that charges are not related
4
In Williams, the Court analyzed an earlier version of the court rule. Williams, 483 Mich. at 233
& n 5.
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“simply because they [are] of the same of similar character.” Id. at 235 (quotation marks and
citation omitted). Moreover, joinder is appropriate when the charges are “logically related” and
“there is a large area of overlapping proof.” Id. at 237 (quotation marks and citation omitted).
Defendant argues that the two incidents that were joined for trial were “completely
different” because they involved different victims, occurred at different times, and occurred
under different circumstances. He also argues that the first act did not facilitate the second.
However, the facts at trial established that the two offenses were a series of acts constituting
parts of a single scheme or plan. The armed robberies of Perez and Vasquez were similar in
character. Both robberies appeared be part of a scheme to commit armed robberies on isolated
victims as they were returning to their homes in Detroit on the evening of December 16, 2016.
The evidence indicated that the two offenses occurred less than two hours apart. The similarity
of defendant’s conduct during the two offenses and the closeness in time between the offenses
shows a logical and temporal relationship between the charges. Moreover, the record establishes
that there was a “large area of overlapping proof.” Williams, 483 Mich. at 237 (quotation marks
and citation omitted). The evidence regarding the border patrol agent’s observation and pursuit
of the vehicle involved and the investigation of the occupants of the vehicle at the Lesure address
was relevant to both cases. Other factors also weighed in favor of joinder—the prosecution’s
motion appeared to be timely, there was little potential for confusion or prejudice from joinder of
the two offenses, and joinder was convenient for the witnesses who would have been called to
testify at both trials. Thus, the trial court did not err by ruling that joinder was permissible.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that there was insufficient evidence to support his conviction of
conspiracy to commit armed robbery.
This Court reviews de novo a challenge to the sufficiency of the evidence. People v
Willis, 322 Mich. App. 579, 583; 914 NW2d 384 (2018). In determining whether sufficient
evidence to support a conviction was presented at trial, “this Court must view the evidence in a
light most favorable to the prosecution and determine whether a rational trier of fact could find
that the essential elements of the crime were proved beyond a reasonable doubt.” Id. “Whether
conduct falls within the scope of a criminal statute . . . is a question of statutory interpretation
that we review de novo.” Id. at 584.
MCL 750.157a provides that “[a]ny person who conspires together with 1 or more
persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is
guilty of the crime of conspiracy punishable as provided herein . . . .” In People v Jackson, 292
Mich. App. 583, 588; 808 NW2d 541 (2011), this Court explained:
A criminal conspiracy is a partnership in criminal purposes, under which
two or more individuals voluntarily agree to effectuate the commission of a
criminal offense. The individuals must specifically intend to combine to pursue
the criminal objective, and the offense is complete upon the formation of the
agreement. The intent, including knowledge of the intent, must be shared by the
individuals. Thus, there must be proof showing that the parties specifically
intended to further, promote, advance, or pursue an unlawful objective. Direct
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proof of a conspiracy is not required; rather, proof may be derived from the
circumstances, acts, and conduct of the parties. [Quotation marks and citations
omitted.]
“Conspiracy is a specific-intent crime, because it requires both the intent to combine with others
and the intent to accomplish the illegal objective.” People v Mass, 464 Mich. 615, 629; 628
NW2d 540 (2001). “For intent to exist, the defendant must know of the conspiracy, must know
of the objective of the conspiracy, and must intend to participate cooperatively to further that
objective.” People v Blume, 443 Mich. 476, 485; 505 NW2d 843 (1993).
As stated by this Court in People v Chambers, 277 Mich. App. 1, 7; 742 NW2d 610
(2007), 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.
Defendant argues that there was no evidence that he intended to conspire or agreed with
the other individuals in the vehicle to rob Vasquez. We agree with defendant’s assertion that
there was no direct evidence of a conspiracy, and the circumstantial evidence was insufficient for
a rational trier of fact to conclude that defendant conspired with the individuals in the vehicle to
commit armed robbery on Vasquez. Vasquez testified that she saw three or four individuals in
the vehicle that defendant got into after the offense. There was, however, no direct or
circumstantial evidence that the other individuals were aware of the plan to rob Vasquez and
intended to participate in that plan. Vasquez testified that defendant got into the driver’s seat
after he robbed her. Thus, there was no evidence that one of the other individuals drove to or
from the armed robbery, which might have supported a reasonable inference that the individual
had the knowledge and intent to conspire with defendant. Furthermore, while Perez observed a
similar vehicle during the first armed robbery, he did not see any individuals in the vehicle.
Accordingly, there was no evidence that the other individuals were present during or aware of
the earlier armed robbery of Perez, such that their knowledge and intent to commit the second
robbery of Vasquez could be inferred. Finally, given Vasquez’s testimony that defendant got
into the driver’s seat of the vehicle, the conduct in fleeing from law enforcement after the armed
robbery can only be attributed to defendant. While a backseat occupant turned around and
looked at the border patrol agent before the vehicle accelerated, there was no evidence that such
individual had any knowledge of the armed robbery or intended to further the conspiracy by
fleeing from the police. Based on the testimony presented at trial, the other individuals were
merely present in the vehicle while defendant committed the armed robbery of Vasquez, which is
insufficient to establish that they conspired with defendant to commit the offense. Accordingly,
there was insufficient evidence to establish a conspiracy.
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We reverse defendant’s conviction and sentence for conspiracy to commit armed robbery
in Docket No. 340465, and remand for correction of the judgment of sentence. We affirm
defendant’s remaining convictions and sentences in both appeals. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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