People of Michigan v. Robert Earl White ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 29, 2016
Plaintiff-Appellee,
v No. 327418
Wayne Circuit Court
MARY ELAINE WHITE, LC No. 14-008075-01-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 327419
Wayne Circuit Court
ROBERT EARL WHITE, LC No. 14-008075-02-FC
Defendant-Appellant.
Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
In Docket No. 327418, defendant Mary Elaine White (MEW) appeals as of right her jury
trial convictions of assault with intent to do great bodily harm less than murder (AWIGBH),
MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm),
second offense, MCL 750.227b. The trial court sentenced MEW to 23 months to 10 years’
imprisonment for the AWIGBH conviction, to be served consecutively to five years’
imprisonment for the felony-firearm conviction. We affirm MEW’s convictions, but remand for
a Crosby1 proceeding under People v Lockridge, 498 Mich. 358; 870 NW2d 502 (2015), relative
to her sentences and for the ministerial task of correcting errors in the judgment of sentence.
In Docket No. 327419, defendant Robert Earl White (REW) appeals as of right his jury
trial convictions of assault with intent to commit murder (AWIM), MCL 750.83, felony-firearm,
1
This is a reference to United States v Crosby, 397 F3d 103 (CA 2, 2005).
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and felon in possession of a firearm, MCL 750.224f. The trial court sentenced REW as a second
habitual offender, MCL 769.10, to concurrent sentences of 15 to 25 years’ imprisonment for the
AWIM conviction and two to five years’ imprisonment for the felon-in-possession conviction, to
be served consecutively to a two-year term of imprisonment for the felony-firearm conviction.
We affirm.
The charges and convictions in this case stem from the shooting of MEW’s boyfriend.
There was evidence that MEW’s boyfriend hit MEW in the face after an argument outside their
house, that MEW then left the scene, that MEW returned to the house within about five to ten
minutes, that REW, who is MEW’s brother, also arrived at the house, that the boyfriend locked
himself inside the house and stood by the door as both defendants stood outside the door
verbalizing their intent to harm the boyfriend, that the boyfriend started to call 911, and that,
with MEW’s boisterous approval, REW then fired numerous gunshots through the door, striking
the boyfriend.
In Docket No. 327418, MEW first argues that there was insufficient evidence to support
her felony-firearm conviction, which was based on an aiding and abetting theory. We disagree.
We review de novo the issue regarding whether there was sufficient evidence to sustain a
conviction. People v Lueth, 253 Mich. App. 670, 680; 660 NW2d 322 (2002). In reviewing the
sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial
– in a light most favorable to the prosecutor and determine whether a rational trier of fact could
find that the essential elements of the crime were proved beyond a reasonable doubt. People v
Reese, 491 Mich. 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich. 417, 428; 646
NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their
testimony; therefore, an appellate court must not interfere with the jury’s role in assessing the
weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich. 508, 514-
515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise
from such evidence can constitute satisfactory proof of the elements of a crime. People v
Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every
reasonable theory of innocence, but need only prove the elements of the crime in the face of
whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich. 392,
400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution.
People v Kanaan, 278 Mich. App. 594, 619; 751 NW2d 57 (2008).
A defendant may be convicted of felony-firearm under an aiding and abetting theory.
People v Moore, 470 Mich. 56; 679 NW2d 41 (2004). In Moore, our Supreme Court held that
“the proper standard for establishing felony-firearm under an aiding and abetting theory is
whether the defendant’s words or deeds ‘procure[d], counsel[ed], aid[ed], or abet[ted]’ another to
carry or have in his possession a firearm during the commission or attempted commission of a
felony-firearm offense.” Id. at 58-59 (alterations in original). “All that is required to prove
aiding and abetting felony-firearm is that the defendant aided and abetted another in carrying or
having in his possession a firearm while that other commits or attempts to commit a felony.” Id.
at 68. In Moore, this Court explained:
The prosecutors must do more than demonstrate that defendants aided the
commission or attempted commission of the underlying crimes (here murder and
robbery). Rather, the prosecutors must demonstrate that defendants specifically
aided the commission of felony-firearm. Establishing that a defendant has aided
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and abetted a felony-firearm offense requires proof that a violation of the felony-
firearm statute was committed by the defendant or some other person, that the
defendant performed acts or gave encouragement that assisted in the commission
of the felony-firearm violation, and that the defendant intended the commission of
the felony-firearm violation or had knowledge that the principal intended its
commission at the time that the defendant gave aid and encouragement. In
determining whether a defendant assisted in the commission of the crime, the
amount of advice, aid, or encouragement is not material if it had the effect of
inducing the commission of the crime. It must be determined on a case-by-case
basis whether the defendant performed acts or gave encouragement that assisted
in the carrying or possession of a firearm during the commission of a felony. [Id.
at 70-71 (citations and quotation marks omitted).]
The Moore Court held:
The defendant in each case aided or abetted felony-firearm by actively
urging, inciting, encouraging, or motivating the principal to use the weapon that
was in the principal’s possession. Implicit in the use of a firearm is the possession
of that firearm. Thus, when a defendant specifically encourages another
possessing a gun during the commission of a felony to use that gun, he aids and
abets the carrying or possessing of that gun just as surely as if he aided or abetted
the principal in obtaining or retaining the gun. [Id. at 71.]
Here, REW arrived at the house with a gun, and MEW arrived shortly thereafter in her
own vehicle. There was evidence that both defendants yelled for the boyfriend to come outside.
An eyewitness testified that he saw a woman “hyping it up,” and the boyfriend testified that
MEW yelled, “F--- that. Get him. Kill him,” or “Get that mother------. Kill him.” A police
officer who responded to the scene testified that MEW’s boyfriend asserted that MEW had said,
“Shoot this mother------.” And then several shots were fired through the door, hitting the
boyfriend. Viewing this evidence in a light most favorable to the prosecution, the jury could find
that MEW encouraged REW’s use of the weapon by directing him to shoot or kill the boyfriend.
Moore, 470 Mich. at 71. Thus, MEW aided and abetted REW’s possession of the firearm by
specifically encouraging him to use the gun in his possession. Id. MEW’s arguments to the
contrary are unavailing, and reversal is unwarranted.
Next, MEW argues that defense counsel was ineffective for failing to object to an
allegedly defective verdict form and accompanying jury instructions. We disagree. Whether
counsel was ineffective presents a mixed question of fact and constitutional law, which we
review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich. 575, 579; 640
NW2d 246 (2002). In People v Carbin, 463 Mich. 590, 599-600; 623 NW2d 884 (2001), our
Supreme Court, addressing the basic principles governing a claim of ineffective assistance of
counsel, observed:
To justify reversal under either the federal or state constitutions, a
convicted defendant must satisfy the two-part test articulated by the United States
Supreme Court in Strickland v Washington, 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed.
2d 674 (1984). See People v Pickens, 446 Mich. 298, 302-303; 521 NW2d 797
(1994). “First, the defendant must show that counsel’s performance was deficient.
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This requires showing that counsel made errors so serious that counsel was not
performing as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland,
supra at 687. In so doing, the defendant must overcome a strong presumption that
counsel’s performance constituted sound trial strategy. Id. at 690. “Second, the
defendant must show that the deficient performance prejudiced the defense.” Id.
at 687. To demonstrate prejudice, the defendant must show the existence of a
reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. 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. See People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
An attorney’s performance is deficient if the representation falls below an objective standard of
reasonableness. People v Toma, 462 Mich. 281, 302; 613 NW2d 694 (2000).
MEW’s verdict form appeared as follows:
MEW maintains that this verdict form was confusing, appearing to foreclose the jury’s
ability to acquit MEW of both AWIM and AWIGBH. Although a bit more clarity would have
been helpful, we find that the verdict form was not defective, as it gave the jury the opportunity
to return a general verdict of not guilty with respect to the assault against MEW’s boyfriend,
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encompassing a prospective acquittal on both AWIM and AWIGBH. See and compare People v
Wade, 283 Mich. App. 462, 464-468; 771 NW2d 447 (2009). We cannot envision that the jury
was of the belief that it was not permitted to render a general not-guilty verdict relative to the
assault. Indeed, to accept MEW’s argument, we would have to find that the jury, after
determining that MEW was not guilty of AWIM, was under the impression that it was absolutely
compelled to render a guilty verdict on AWIGBH, which is simply not logical. In its
instructions, the trial court directed the jurors that they could find defendant not guilty, guilty of
AWIM, or guilty of AWIGBH. Assuming for the sake of argument that the issue is a closer call
and that perhaps Wade dictates a different conclusion, we cannot find that defense counsel’s
failure to challenge the verdict form and instructions fell below an objective standard of
reasonableness. And given the strong evidence of MEW’s participation in the crime and her
guilt, the requisite prejudice has not been shown.
MEW next argues that she is entitled to a Crosby remand under Lockridge because her
sentencing guidelines were calculated on the basis of judicially-found facts, which were used to
mandatorily increase the floor of the guidelines minimum sentence range in violation of her right
to a jury trial. We agree. MEW did not raise this issue below; therefore, “our review is for plain
error affecting substantial rights.” Lockridge, 498 Mich. at 392. In Lockridge, our Supreme
Court held:
Because Michigan's sentencing guidelines scheme allows judges to find by
a preponderance of the evidence facts that are then used to compel an increase in
the mandatory minimum punishment a defendant receives, it violates the Sixth
Amendment to the United States Constitution . . . . We therefore reverse the
judgment . . . . To remedy the constitutional flaw in the guidelines, we hold that
they are advisory only.
To make a threshold showing of plain error that could require
resentencing, a defendant must demonstrate that his or her [offense variable] OV
level was calculated using facts beyond those found by the jury or admitted by the
defendant and that a corresponding reduction in the defendant's OV score to
account for the error would change the applicable guidelines minimum sentence
range. If a defendant makes that threshold showing and was not sentenced to an
upward departure sentence, he or she is entitled to a remand [to] the trial court for
that court to determine whether plain error occurred, i.e., whether the court would
have imposed the same sentence absent the unconstitutional constraint on its
discretion.[2] If the trial court determines that it would not have imposed the same
sentence but for the constraint, it must resentence the defendant. [Lockridge, 498
Mich. at 399.]
2
The Court referred to such remands as “Crosby remands” after the procedures outlined in
Crosby, 397 F3d 103. Lockridge, 498 Mich. at 395-399. “Crosby remands are warranted only in
cases involving sentences imposed on or before July 29, 2015 . . . .” Id. at 397. MEW was
sentenced in April 2015. The specific procedures applicable upon a Crosby remand are set forth
in Lockridge. Id. at 398.
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Here, 25 points were assessed by the trial court for OV 3, which is the appropriate score
when a “[l]ife threatening or permanent incapacitating injury occurred to a victim.” MCL
777.33(1)(c). This was not a fact necessarily found by the jury in rendering its verdict, as
AWIGBH does not require actual proof of an injury, nor was it a fact admitted by MEW. It is
unnecessary for us to examine any other OVs, given that the reduction of 25 points for OV 3
alone lowers the minimum guidelines range, MCL 777.65, thereby mandating a Crosby remand
under Lockridge.
Finally, MEW argues that the judgment of sentence inaccurately states that she was found
guilty of AWIM instead of AWIGBH. While the judgment of sentence provides the citation for
AWIGBH, MCL 750.84, it describes the offense as being AWIM, and this error is to be
corrected on remand. We further note that the judgment of sentence indicates that MEW was
sentenced as a second-habitual offender under MCL 769.10. This is also incorrect. She was
convicted of and sentenced for felony-firearm, second offense, MCL 750.227b(1). We direct
that this error also be corrected on remand.
In Docket No. 327419, REW contends that his convictions must be reversed because
there was insufficient evidence of his identity as the perpetrator and of an intent to kill. We
disagree. “[I]dentity is an element of every offense,” People v Yost, 278 Mich. App. 341, 356;
749 NW2d 753 (2008), and an intent to kill is an essential element of AWIM, People v
Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014). REW maintains that MEW’s boyfriend
was the only person who provided identification testimony and that his testimony was not
credible. REW claims that the boyfriend could not have known who the shooter was because he
was standing behind the door of the home when the shots rang out. The boyfriend, however,
testified that he saw REW exit his vehicle with a gun in his hand and that he observed REW
shoot out the top window. REW is also incorrect that the boyfriend was the only witness who
provided identification testimony. There was an eyewitness who described the shooter’s vehicle
as a red truck with a white door, and REW was arrested in a red Suburban with a white door.
Another eyewitness saw the shooter get into an SUV or van. Moreover, contrary to REW’s
assertion, this witness did not describe the shooter as being short. Rather, she testified that she
referred to the shooter as the “short guy” and the other man on the porch as the “tall guy”
because “one was basically shorter than the other one.” Thus, her testimony did not actually
describe the height of the shooter. And the other eyewitness described the shooter as tall and
slender, fitting REW’s description. Finally, although REW claims that there were
inconsistencies between the boyfriend’s testimony and his earlier statements and testimony,
“[t]he credibility of witnesses and the weight accorded to evidence are questions for the jury, and
any conflict in the evidence must be resolved in the prosecutor’s favor.” People v Jackson, 292
Mich. App. 583, 587-588; 808 NW2d 541 (2011) (citation and quotation marks omitted). Thus,
there was sufficient evidence identifying REW as the shooter.
We also reject REW’s argument that there was insufficient evidence showing an intent to
kill. REW makes this claim on the basis that there was a lack of evidence indicating that he
knew that the boyfriend was directly behind the door when he fired his weapon. The boyfriend
testified that MEW was trying to unlock the door and the boyfriend relocked it, and he also told
defendants that he was calling the police. Given his relocking of the door and his statement to
defendants, the jury could reasonably have found that defendants were aware that the boyfriend
was within close proximity to the door. And REW’s intent to kill can be inferred by his use of a
deadly weapon, Henderson, 306 Mich. App. at 11, which he fired multiple times into an occupied
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home. REW argues that because there was no evidence of “bad blood” between himself and the
boyfriend, there was no evidence of motive that might supply a basis to infer an intent to kill.
“Minimal circumstantial evidence is sufficient to show an intent to kill, and that evidence can
include a motive to kill, along with flight and lying, which may reflect a consciousness of guilt.”
Id. While we note that motive is not an element of the crime that needed to be established, the
boyfriend’s earlier assault of REW’s sibling, MEW, provided motivation for him to kill the
boyfriend. REW’s flight after the shooting also reflected a consciousness of guilt. Accordingly,
there was sufficient evidence of REW’s intent to kill.
Finally, REW presents a Lockridge argument and requests a Crosby remand. REW filed
a motion in the trial court for resentencing under Lockridge after its release, and the court
conducted a hearing on the motion, entertaining the parties’ briefs and arguments. Although the
trial court did not articulate its decision in the precise terms set forth in Lockridge, the court
made absolutely clear that the sentences imposed on REW would not have been any different
under the principles announced in Lockridge. Therefore, REW was effectively afforded a
Crosby remand, and we see no reason to return the matter back to the trial court for further
review.
In Docket No. 327418, we affirm MEW’s convictions, but remand for a Crosby
proceeding under Lockridge and for the ministerial task of correcting errors in the judgment of
sentence, as identified above. In Docket No. 327419, we affirm REW’s convictions and
sentences. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ William B. Murphy
/s/ Michael J. Riordan
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