K.F. KELLY, J.
These three defendants were tried jointly before separate juries. A jury convicted defendant Floyd Gene Perkins (Perkins) of first-degree felony murder, MCL 750.316(1)(b), conspiracy to commit armed robbery, MCL 750.157a, armed robbery, MCL 750.529, and felony-firearm, MCL 750.227b(1). Perkins was sentenced to life in prison for the murder conviction, 285 months to 50 years' imprisonment for both the conspiracy to commit armed robbery and armed robbery convictions, and two years' imprisonment for the felony-firearm conviction. On appeal, Perkins argues: (1) there was insufficient evidence to support his murder conviction; (2) his confession violated the Fifth and Sixth Amendments; and, (3) the judgment of sentence must be amended because Perkins' felony-firearm conviction was erroneously ordered to be served consecutively to his conviction for conspiracy to commit armed robbery. We agree that the matter must be remanded for the ministerial task of correcting Perkins' judgment of sentence, but in all other respects we affirm Perkins' convictions and sentences.
A jury convicted defendant Aaron Williams (Williams) of conspiracy to commit armed robbery, armed robbery, felon in possession of a firearm, MCL 750.224f, and felony-firearm. The jury could not reach a verdict on the felony murder charge. Williams was sentenced as a fourth habitual offender to 25 to 50 years' imprisonment for each of the conspiracy to commit armed robbery and the armed robbery convictions, 30 months to 60 months' imprisonment for the felon in possession conviction, and two years' imprisonment for the felony-firearm conviction. In lieu of a retrial on the felony murder charge, Williams later pleaded no contest to second-degree murder, for which he later received a 35 to 50 year prison term. On appeal, Williams argues there was insufficient evidence that he committed armed robbery and the trial court erred in assessing the same amount of restitution against Williams as it had against his more culpable codefendants. We affirm Williams' convictions and sentences.
A jury convicted Kenya Ali Hyatt (Hyatt) of first-degree felony murder, conspiracy to commit armed robbery, armed robbery, and felony-firearm. Because Hyatt was 17 years old when the offense occurred, the trial court held a Miller
On August 14, 2010, the victim, a security guard at River Village Apartments in Flint, was killed after being shot multiple times. Perkins, Williams and Hyatt each gave statements to police officer Terence Green, and each implicated himself in the murder. The statements revealed that Perkins and his family were in danger because of a dispute Perkins had with an individual. Perkins wanted to obtain a firearm to help him protect his family. Williams and Hyatt were Perkins' cousins, but were not related to one another. The three individuals devised a plan in which Perkins could obtain a gun. Williams lived in the apartment complex where the murder took place and knew that the security guards who worked there were armed. Williams borrowed a gun from an individual known as "Chief." The idea was that Perkins, Hyatt and Williams would use the borrowed gun to rob one of the security guards of his firearm. On the night of the shooting, Williams acted drunk and disorderly in the apartment complex's parking lot in order to lure the victim out of his security car. When the victim approached Williams, Perkins and Hyatt approached from behind. Perkins grabbed the victim and held him while Hyatt drew the gun he had received from Williams. Both Perkins and Hyatt indicated that the victim reached for Hyatt's gun and the gun discharged. After that first shot, Perkins grabbed the victim's side-arm and ran away. Perkins heard additional shots as he was fleeing. Hyatt maintained that the first shot was accidental and that he subsequently "blacked out" and could not remember what happened afterwards.
An autopsy revealed that the victim had been shot three times, although there were four gunshot wound paths. One bullet wound entered the back left side of the victim's scalp, exiting near the forehead, grazing the left cheek. This same bullet then entered the top of the left shoulder, with the bullet ending up deep in the muscle on the left side of the back thorax area. Another bullet entered behind the left ear and exited the right cheek. This bullet went through the spine, severing the spinal cord. A third bullet, and fourth path, entered the left chest region and was recovered from the lower back. This bullet went through the lung, causing significant injury to the lung and bleeding inside the left chest area. While all gunshot wounds had the potential to be fatal, the pathologist testified that two were immediately incapacitating — the one that entered behind the left ear and severed the spine and the one on the left side of the chest that caused significant internal bleeding. There was no way to tell which bullet came first.
As previously indicated, Perkins, Williams and Hyatt were tried jointly before separate juries. They were convicted and sentenced as outline above and now appeal as of right.
Perkins argues that there was insufficient evidence to support his felony murder conviction. Specifically, Perkins argues that the victim was not killed "while in the perpetration or attempted perpetration of a robbery" because the robbery was
"We review de novo a challenge on appeal to the sufficiency of the evidence." People v. Ericksen, 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). "Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt." People v. Hardiman, 466 Mich. 417, 421, 646 N.W.2d 158 (2002). "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." Id. at 428, 646 N.W.2d 158. "The requirements of the aiding and abetting statute are a question of law that this Court reviews de novo." People v. Robinson, 475 Mich. 1, 5, 715 N.W.2d 44 (2006) (footnote omitted).
In order to be convicted of first-degree felony murder, the prosecution had to prove the following elements:
While Perkins did not fire the fatal shots, the aiding and abetting statute, MCL 767.39, provides that a defendant may be convicted as a principal if he aided or abetted in the commission of a charged crime. The statute reads:
Therefore, in order to be convicted under an aiding and abetting theory, the prosecution must prove:
More specifically to this particular case:
"The phrase `aids or abets' is used to describe any type of assistance given to the perpetrator of a crime by words or deeds that are intended to encourage,
The facts in Robinson are similar to the case at bar. In Robinson, the defendant agreed with his codefendant that they would go to the victim's house and "f* * * him up." The defendant drove to the victim's home and provided the first blows to the victim. Once the victim was on the ground, the codefendant began to kick the victim. The defendant told his codefendant "that was enough" and began to walk back to the car when he heard a single gunshot; the codefendant had shot the victim. The trial court found the defendant guilty of second-degree murder. This Court reversed, holding that there was insufficient evidence to support the defendant's conviction because there was no evidence establishing that the defendant was aware of his codefendant's intent to kill the victim. Id. at 4-5, 715 N.W.2d 44. Our Supreme Court reversed, holding that the natural and probable consequence of aggravated assault was death. While the defendant may have only intended to assault the victim, it was foreseeable that a plan to assault someone could "escalate the assault to murder" and the fact that the defendant "serendipitously left the scene of the crime moments before [the] murder does not under these circumstances exonerate him from responsibility for the crime." Id. at 11-12, 715 N.W.2d 44. The Court explained that "sharing the same intent as the principal allows for accomplice liability. However, sharing the identical intent is not a prerequisite to the imposition of accomplice liability." Id. at 14, 715 N.W.2d 44. The Court held:
The prosecution presented sufficient evidence to convict Perkins of felony murder. Perkins, along with Williams and Hyatt, devised a plan to take a gun from a security guard. Perkins grabbed the victim and held him while Hyatt drew his own gun. Hyatt shot the victim while Perkins was holding him. While Perkins may have fled the scene after the first shot, he is not exonerated from Hyatt's subsequent action where the victim's death was a natural and probable consequence of the armed robbery. A reasonable jury could conclude that Perkins disregarded the likelihood that the natural tendency of his acts was to cause death. Clearly Perkins (1) performed acts or gave encouragement that assisted the commission of the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit,
Defendant argues that he had reached temporary safety before the fatal shots. However, the victim was shot multiple times with one of those shots coming when Perkins was still holding the victim. There is no clear indication of which shot actually killed the victim. Therefore, it is conceivable that the shot fired while Perkins held the victim was the one that actually caused the victim's death. At a minimum, the shot contributed to the victim's death. Perkins tries to separate his acts of assistance during the armed robbery from Hyatt's act of shooting the victim, relying heavily on the fact that he was attempting to leave the location. The jury could have inferred from the evidence, however, that Perkins assisted in the murder by actively participating in the underlying offense, i.e., the armed robbery, and that the shooting was a natural and probable result of the armed robbery.
Perkins next argues that his confession should have been suppressed because the investigating officer, Terence Green, knew that Perkins was in jail on an unrelated offense and was represented by counsel and nevertheless questioned Perkins without his attorney and because the officer lied to him about incriminating physical evidence. We disagree.
Perkins argues that the trial court erred in admitting his statement to police where the statement violated his right to counsel under both his Fifth and Sixth Amendment rights. Our Court has explained the interplay between these two amendments:
The Sixth Amendment, as applied to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to have an attorney assist in his defense. People v. Russell, 471 Mich. 182, 187, 684 N.W.2d 745 (2004), cert. den. 543 U.S. 1095, 125 S.Ct. 965,
The record reveals that adversarial judicial proceedings for the instant case had not yet begun when Perkins confessed. At the Walker hearing, Green testified that he knew that Perkins was in jail on an unrelated home invasion charge. Green never bothered to see whether Perkins had been arraigned on the home invasion charge or whether there was an attorney of record. Because the Sixth Amendment right to counsel is offense specific and because adversarial judicial proceedings had not been initiated for the offenses in this case, Perkins' right to counsel under the Sixth Amendment had not yet attached and the trial court properly denied Perkins' motion to suppress his confession on that basis.
Perkins nevertheless claims that his statement was involuntary. The Michigan Supreme Court has held:
Perkins claims that his statement was involuntary because Green lied to him about what evidence existed in the case. Green admitted that he told Perkins there was video, DNA, and fingerprint evidence, even after Green assured Perkins at the outset of their conversation that he would "never lie to" Perkins. The fact that police lie to a suspect about the evidence against him does not automatically render an otherwise voluntary statement involuntary. People v. Hicks, 185 Mich.App. 107, 113, 460 N.W.2d 569 (1990). Instead, misrepresentation by the police is just one factor to be considered; the focus remains the totality of the circumstances.
Green testified that he questioned Perkins on February 20, 2013 at approximately 4:55 p.m. Perkins was over 21 years old and had both a G.E.D. and a high school diploma. Perkins could read and write the English language. Perkins had previous contact with the police and the criminal justice system and, as previously mentioned, was in jail for home invasion. Perkins was not deprived of food, sleep, or medical attention, and he was not injured, intoxicated, or drugged. There is no evidence that Perkins was physically abused, or threatened with abuse. The interview was short, lasting only an hour. Perkins was advised of and waived his Miranda rights before speaking with Green and never requested an attorney. Therefore, even if Green lied to Perkins regarding the evidence against him, the trial court did not err in determining that defendant's statement was voluntarily made under the totality of the circumstances.
Finally, Perkins argues that the trial court erred in ordering that Perkins' felony-firearm sentence run consecutively to Perkins' conspiracy to commit armed robbery sentence. The prosecution concedes error on this point.
At the time of Perkins' sentence, the felony-firearm statute provided, in relevant part:
Our Supreme Court has held:
From the plain language of the felony-firearm statute, it is evident that the Legislature intended that a felony-firearm sentence be consecutive only to the sentence for a specific underlying felony. Subsection 2 clearly states that the felony-firearm sentence "shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony." It is evident that the emphasized language refers back to the predicate offense
Perkins' judgment of sentence should be amended to reflect that his felony-firearm sentence does not run consecutively to his conspiracy to commit armed robbery sentence.
Williams first argues that the trial court erroneously assessed the full amount of restitution against him when he was merely an aider and abettor to crimes less than murder. He points out that he was not convicted of felony murder and was only liable for the impact of his conduct on the victim, not the criminal acts of others. This issue is moot and has been waived.
In lieu of a second trial, Williams pleaded no contest to second-degree murder. Notably, the judgment of sentence from the murder conviction includes the same order of restitution as the previous judgment of sentence. Williams tried unsuccessfully to withdraw his guilty plea in the trial court. He sought delayed application for leave to appeal, which this Court denied. People v. Williams, unpublished order of the Court of Appeals, entered August 4, 2015 (Docket No. 328103), lv pending. Therefore, as of now, the judgment of sentence from Williams' murder conviction stands. The restitution order for the murder conviction is the same as the restitution for this case. Under those circumstances, "this Court is unable to provide a remedy for the alleged error" and the issue is deemed moot. People v. Tombs, 260 Mich.App. 201, 220, 679 N.W.2d 77 (2003).
Moreover, the issue has been waived. "[I]n general, an appellant may not benefit from an alleged error that the appellant contributed to by plan or negligence." People v. Witherspoon, 257 Mich.App. 329, 333, 670 N.W.2d 434 (2003). At Williams' August 11, 2014 sentence, the following exchange took place:
"[A] party cannot request a certain action of the trial court and then argue on appeal that the action was error." People v. McCray, 210 Mich.App. 9, 14, 533 N.W.2d 359 (1995). Defense counsel seems to have "undoubtedly inadvertently, created the very error that it wishes to correct on appeal." People v. Szalma, 487 Mich. 708, 726, 790 N.W.2d 662 (2010). But "a party may not harbor error at trial and then use that error as an appellate parachute." Id.
Williams argues that there was insufficient evidence to support his convictions for armed robbery and conspiracy to commit armed robbery. Williams writes: "There is no evidence that Williams knew
"The essential elements of an armed robbery are (1) an assault, and (2) a felonious taking of property from the victim's person or presence, while (3) the defendant is armed with a weapon described in the statute." People v. Henry (After Remand), 305 Mich.App. 127, 142, 854 N.W.2d 114 (2014). "A conspiracy is a partnership in criminal purposes. The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. Establishing a conspiracy requires evidence of specific intent to combine with others to accomplish an illegal objective." People v. Blume, 443 Mich. 476, 505 N.W.2d 843 (1993) (quotation marks and citations omitted).
As previously stated, the aiding and abetting statute, MCL 767.39, provides that a defendant may be convicted of a crime if he aided or abetted in the commission of the crime. Williams admitted that he, Perkins and Hyatt discussed the need to rob a security guard in order to obtain a weapon. Williams borrowed a gun for the group. In fact, Williams concedes that the evidence was sufficient to support his convictions for felon in possession of a firearm and felony-firearm based on his admission to Green that he obtained the gun from a man known as "Chief." Not only did Williams provide the weapon, but he acted in a drunk and disorderly way in order to lure the victim out of his car, making the victim an easier target for Perkins and Hyatt. Hyatt shot the victim with the gun that Williams procured. It is disingenuous for Williams to now argue that he did not expect an armed robbery when, in fact, he provided a gun to accomplish the armed robbery. There was overwhelming evidence to support Williams' convictions for armed robbery and conspiracy to commit armed robbery.
Hyatt argues that Green invaded the province of the jury by offering his opinion that certain video footage and still frames from the stairwell of the apartment building where the murder occurred were of Hyatt. We agree that the trial court abused its discretion when it allowed Green to identify Hyatt in a surveillance video, but conclude that the error was harmless.
"We review for an abuse of discretion the trial court's evidentiary rulings that have been properly preserved. An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v. Fomby, 300 Mich.App. 46, 48, 831 N.W.2d 887 (2013) (internal quotation marks and citation omitted).
The following exchange took place while the prosecutor questioned Green:
Green then testified that, as Hyatt neared the bottom of the stairs, "you can clearly see him make a motion. Left hand crosses the body. Right hand touches the hip," which Green believed was an attempt to conceal a weapon.
The testimony at issue constituted lay opinion testimony. Fomby, 300 Mich.App. at 50, 831 N.W.2d 887. MRE 701 provides: "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." However, Green's testimony invaded the province of the jury. In Fomby, this Court cited with support federal case law that "the issue of whether the defendant in the courtroom was the person pictured in a surveillance photo [is] a determination properly left to the jury." Fomby, 300 Mich.App. at 52, 831 N.W.2d 887. In such a situation, there is no reason to believe that the witness who offered the identifying testimony was "more likely to identify correctly the person than is the jury." Id. (internal quotation marks omitted).
Unlike the witness in Fomby who testified that the individual in the video footage was the same individual in still images but did not specifically identify the defendant as the individual in the images, Green affirmatively identified Hyatt as the individual in the stairwell. Green could properly comment that, based on his experience, the individual appeared to be concealing a weapon, but Green should not have been allowed to identify Hyatt as that individual. "[W]here a jury is as capable as anyone else of reaching a conclusion on certain facts, it is error to permit a witness to give his own opinion or interpretation of the facts because it invades the province of the jury." People v. Drossart, 99 Mich.App. 66, 80, 297 N.W.2d 863 (1980). There was nothing about the images (i.e. poor quality of the images, defendant wearing a disguise) that necessitated Green's opinion. This is evidenced by the trial court's own statement during defense counsel's objection that "I would have no trouble making an identification myself."
However, even if the trial court abused its discretion, reversal is not warranted where the error was not outcome determinative. "Under MCL 769.26, a preserved, nonconstitutional error is not grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative. Similarly, MCR 2.613(A) provides that an error is not grounds for disturbing a judgment unless refusal to take this action appears to the court inconsistent with substantial justice." People v. Williams, 483 Mich. 226, 243, 769 N.W.2d 605 (2009) (internal quotation marks and citation omitted). "An error is outcome determinative if it undermined the reliability of the verdict." People v. Feezel, 486 Mich. 184, 192, 783 N.W.2d 67 (2010). When determining whether the verdict has been undermined, an appellate court must "focus on the nature of the error in light of the weight and strength of the untainted evidence." Id.
Here, evidence of Hyatt's guilt was overwhelming. In fact, the assailants' identities were not reasonably in dispute. Hyatt confessed to helping plan the robbery. He armed himself with a gun that Williams gave him. Although the plan was simply to scare the security guard and take his weapon, Hyatt shot the victim at least three times. Hyatt clearly admitted that
Hyatt next argues that the trial court erred when it declined Hyatt's request to instruct the jury on accident. We disagree.
"[J]ury instructions that involve questions of law are also reviewed de novo. But a trial court's determination whether a jury instruction is applicable to the facts of the case is reviewed for an abuse of discretion." People v. Gillis, 474 Mich. 105, 113, 712 N.W.2d 419 (2006) (internal quotation marks and citation omitted).
"Challenges to jury instructions are considered in their entirety to determine whether the trial court committed error requiring reversal." People v. Eisen, 296 Mich.App. 326, 330, 820 N.W.2d 229 (2012). "Jury instructions must clearly present the case and the applicable law to the jury. The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence." People v. McGhee, 268 Mich.App. 600, 606, 709 N.W.2d 595 (2005) (emphasis added, internal citation omitted). Therefore, "when a jury instruction is requested on any theories or defenses and is supported by evidence, it must be given to the jury by the trial judge. People v. Mills, 450 Mich. 61, 80-81, 537 N.W.2d 909, modified on other grounds 450 Mich. 1212, 539 N.W.2d 504 (1995). However, a trial court is not required to give a requested instruction "where the theory is not supported by evidence." Id. Even when a defendant has been charged with first-degree murder and claims a firearm accidentally discharged, failure to instruct on accident is not subject to automatic reversal but is subject to review for harmless error. People v. Hawthorne, 474 Mich. 174, 181, 713 N.W.2d 724 (2006). In the event of an instructional error, a defendant must "demonstrate that it is more probable than not that the failure to give the requested lesser included misdemeanor instruction undermined reliability in the verdict." People v. Cornell, 466 Mich. 335, 364, 646 N.W.2d 127 (2002).
Defense counsel asked that the jury be instructed as to accident under CJI2d 7.1 or self-defense under CJI2d 7.2, in light of the fact that there was record evidence that the gun simply discharged when the victim attempted to grab it from Hyatt. The trial court declined to give either instruction because "I do not think there's any evidence or sufficient evidence... that would support the theory that the handgun he was holding discharged accidentally during a struggle with [the victim]."
There was no evidence to support Hyatt's theory that the shooting was accidental. Hyatt did not testify at trial, so the only evidence that the shooting was accidental was Hyatt's statement to Green that the victim grabbed the gun with both hands and it "just went off," as well as Perkins' statement that the victim reached for the gun and it discharged. Had the victim been shot only once, the record might have supported an accident instruction. However, Hyatt fails to address the fact that the victim was shot at least three times. That would mean that, even if the first shot was accidental, Hyatt shot the victim at least two additional times. Under those circumstances, no rational view of the evidence would support an accident instruction.
Finally, Hyatt argues that he was entitled to have a jury determine whether he
In Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2457, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that mandatory life imprisonment without the possibility of parole for those under the age of 18 when they committed a crime violated the Eighth Amendment's, U.S. Const. VIII, prohibition against cruel and unusual punishment. Miller, ___ U.S. ___, 132 S.Ct. 2455. The Court concluding that juveniles were different from adults:
However, the Court fell short of categorically barring life without parole for juvenile offenders; instead, it held that a sentencing court must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 2469.
Our Courts have since struggled with what, exactly, Miller requires. See People v. Eliason, 300 Mich.App. 293, 833 N.W.2d 357 (2013); People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012). In Carp, this Court noted that "the only discretion afforded to the trial court in light of our first-degree murder statutes and Miller is whether to impose a penalty of life imprisonment without the possibility of parole or life imprisonment with the possibility of parole" guided by "the following nonexclusive list of factors":
Our Legislature enacted MCL 769.25 effective on March 4, 2014. The statute provides, in relevant part, as follows regarding the sentencing of select juvenile offenders:
Therefore, pursuant to MCL 769.25, juveniles are no longer sentenced under the same fixed sentences as adults and, absent a motion by the prosecutor seeking a sentence of life without parole, "the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years." MCL 769.25(4) and (9). If the prosecutor files a motion seeking life imprisonment without the possibility of parole for the allowed enumerated offenses, the trial court must hold a hearing, at which it must consider the factors listed in Miller and shall specify on the record any reasons supporting the sentence imposed. MCL 769.25(6) and (7).
When considering Eliason and Carp, our Supreme Court determined that a sentencing court was not afforded with only the discretion to impose a penalty of life imprisonment without the possibility of parole or life imprisonment with the possibility of parole; a defendant whose case was on direct review at the time Miller was decided was entitled to resentencing pursuant to MCL 769.25(1)(b)(ii):
In addition to the changes impacting juvenile sentences, our Supreme Court has recently declared certain features of Michigan's sentencing scheme unconstitutional. In People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015), our Supreme Court concluded that
In order to remedy the constitutional deficiency, the Supreme Court severed "MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory." Id. The Court struck "the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure." Id. Going forward, the Supreme Court held that "a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness." Id.
This Court recently applied Lockridge to juvenile sentencing in People v. Skinner, 312 Mich.App. 15, 877 N.W.2d 482 (2015), and held that a jury must decide whether a juvenile is to be sentenced to life imprisonment without the possibility of parole because such a sentence increases the maximum penalty in violation of the Sixth Amendment. In finding that portions of MCL 769.25 violate the Sixth Amendment, this Court explained:
Therefore, the Skinner Court concluded that: (1) MCL 769.25 makes an indeterminate term of years the default sentence for juveniles convicted of first-degree murder; (2) a court increases the default range if it sentences a juvenile to life in prison without parole; and, (3) the statute unconstitutionally requires the trial court to make factual findings in increasing the term of years. We disagree with the majority opinion in Skinner and would instead adopt Judge Sawyer's well-reasoned dissent.
In Apprendi, 530 U.S. at 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court reemphasized that the Sixth Amendment entitlement of a criminal defendant to a jury trial and the Due Process Clause in the Fourteenth Amendment "indisputably entitle a criminal defendant to a jury determination that [she] is guilty of every element of the crime with which [s]he is charged beyond a reasonable doubt." (Internal quotation and citation omitted). The Supreme Court summarized that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum" or prescribed sentence range, "must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. However, the Supreme Court additionally observed that "judges ... have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case," including by "taking into consideration various factors relating both to offense and offender...." Id. at 481, 120 S.Ct. 2348 (emphasis in original). MCL 769.25 does not violate Apprendi because the jury in this case decided each and every element of the crimes for which Hyatt was convicted. His sentence was not an enhancement, but was within the prescribed statutory maximum once the prosecutor filed a proper notice.
In Ring v. Arizona, 536 U.S. 584, 592, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Opinion by GINSBERG, J.
The Supreme Court overruled a prior decision "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Id. at 609, 122 S.Ct. 2428 (emphasis added). The Supreme Court concluded that "[b]ecause Arizona's enumerated aggravating factors operate as the functional equivalent of an element of a greater offender, the Sixth Amendment requires that they be found by a jury." Id. (internal quotation and citation omitted; emphasis added). Here, the sentencing court did not find any additional aggravating circumstances beyond what the jury found.
In Cunningham v. California, 549 U.S. 270, 274, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), the United States Supreme Court held unconstitutional under the Sixth and Fourteenth Amendments a determinate sentencing law that "assign[ed] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term' sentence," because the facts that the trial court found "are neither inherent in the jury's verdict nor embraced by the defendant's plea." The Supreme Court summarized:
Our statute does not run afoul of Cunningham because Hyatt did not receive an enhanced sentence. The sentencing court did not determine facts not already determined by the jury's verdict.
In Alleyne, 133 S.Ct. at 2155 (Opinion by THOMAS, J.
The Supreme Court in Alleyne elaborated: (1) "Apprendi concluded that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime," and "the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt," id. at 2160; (2) "[i]t is indisputable that a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed," id.; and (3) because "facts increasing the legally prescribed floor [undisputedly] aggravate the punishment," "the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury." Id. at 2161. Our statute does not run afoul of Alleyne because juveniles are not exposed to an increased penalty.
While our Supreme Court in Carp mentioned the term "default," the language of § 25(4) only divests the sentencing court of the discretion to impose a sentence other
Moreover, unlike the sentencing statutes the United States Supreme Court ruled unconstitutional in Apprendi, Ring, Blakely, Cunningham, and Alleyne, nothing in MCL 769.25 premised the sentencing court's authority to impose a term of life imprisonment without parole on any specific finding that Hyatt's jury failed to consider in convicting Hyatt of first-degree felony murder. Because the prosecutor undisputedly and properly filed a motion seeking a life-without-parole sentence for Hyatt, the term of years mandate in §§ 25(4) and (9) did not apply.
Finally, the plain language of the statute did not require the trial court to make any findings concerning aggravating or mitigating factors before the court could sentence Hyatt to life without parole. Consequently, the life without parole sentence in this case came within the statutory maximum, specifically "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Cunningham, 549 U.S. at 283-284, 127 S.Ct. 856, quoting Blakely, 542 U.S. at 303-304, 124 S.Ct. 2531.
At Hyatt's Miller hearing, Officer Terrence Green testified that, unlike the other defendants, Hyatt showed "no remorse, no concern" for what happened. Green acknowledged that the robbery was Perkins' idea and that the other defendants were older than Hyatt. Hyatt's school records revealed assaultive behavior and a threat to "put a cap" in a teacher, resulting in his suspension. A counselor had worried that Hyatt appeared to have no remorse or conscience.
Psychologist Karen Noelle testified that Hyatt had a below average IQ. She testified that Hyatt was a "seriously disturbed young man" with "serious maladjustment" who was "impressionable, easily led, frustrated," depressed and "caught in a morass of [ ] conflict." Hyatt reported that his mother, who was a lesbian, preferred "her women and alcohol" over her children. In contrast, Hyatt's father was a "very solid role model" for Hyatt. But Hyatt's father had been shot by intruders and was paralyzed from the chest down. Hyatt believed his father blamed him for the incident and Hyatt also blamed himself. After his father went to a VA hospital in Texas, Hyatt lived with his mother and other family members, though he considered himself homeless.
Noelle believed Hyatt had the intellectual capacity to be rehabilitated. She was "not sure" whether Hyatt was capable of remorse before the incident occurred because he clearly failed to appreciate the consequences of his prior actions. Hyatt was immature and irresponsible. Noelle testified: "I don't know that he has no sense of remorse and no conscience at all.... I do feel that he is not a sensitive, compassionate young man. I do feel that he's pretty disconnected from societal morals and mores. I think that's concerning, yes I do." Noelle testified that she could not predict whether Hyatt was going to change. It would "require extreme effort and dedication on his part." But she could not say that he was "irredeemable." "[I]f I were to predict in five years, it would not be possible."
The sentencing court took the Miller factors into consideration at sentencing
In Docket No. 323454, we affirm Perkins' convictions and sentences, but remand for the ministerial task of correcting Perkins' judgment of sentence to reflect that his felony-firearm sentence does not run consecutively to his conspiracy to commit armed robbery sentence.
In Docket No. 323876, we affirm Williams' convictions and sentences.
In Docket No. 325741, we affirm Hyatt's convictions, but remand for resentencing so that a jury may determine whether Hyatt should receive a sentence of life in prison without the possibility of parole.
We do not retain jurisdiction.
