PEOPLE OF MI V DETRICK HENDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 27, 1999
Plaintiff-Appellee,
v
No. 203308
Recorder’s Court
LC No. 96-006865
DETRICK HENDERSON,
Defendant-Appellant.
Before: Hood, P.J., and Holbrook, Jr., and Whitbeck, JJ.
PER CURIAM.
The trial court convicted defendant, following a bench trial, of second-degree murder, MCL
750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL
750.227b; MSA 28.424(2). The trial court sentenced defendant, a juvenile at the time, as an adult to
fifteen to sixty years’ imprisonment for the second-degree murder conviction and two years’
imprisonment for the felony-firearm conviction. Defendant now appeals as of right. We affirm
defendant’s convictions, but we vacate his sentences and remand for further proceedings.
I. Basic Facts And Procedural History
In mid-August 1996, Larial Hill was shot and killed as he was walking with his aunt and two
cousins on a street in Detroit. After the shooting, Hill’s aunt pointed defendant out to police officer
Julian Sage of the Detroit Police Department and Sage arrested defendant. At trial, several witnesses
identified defendant as the shooter. In addition, an expert in forensic chemistry did a laboratory analysis
on the gunshot residue test that had been performed on defendant and determined that defendant had
gunshot residue on his hands at the time the test was administered.
During the trial and after a defense witness testified, but before the defense called another
witness, defense counsel asked the trial court for a five-minute recess. The trial court stated that it
would grant a twenty-minute break. Defense counsel then asked the trial court, “[y]our Honor, could
there be an opportunity as we are drawing to a close of our case that I can talk with the defendant as
well as his mother?” The trial court responded, “[w]hoa. Talk to the officers. They say no. They’re
too short in manpower.” When the trial resumed, the defense called its witness to testify. After the
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witness testified, the trial court recessed the trial from 12:00 p.m. until 3:18 p.m. to take up other
unrelated matters. At 3:18 p.m. the trial court stated, “[l]et’s continue with the trial,” and defense
counsel responded, “[y]our Honor, at this time we don’t wish to present any further witnesses, your
Honor.”
After defendant’s conviction, he appeared before the trial court for sentencing. The trial court
found that the offense was of an extremely serious nature. The trial court also stated that defendant
continuously told different people different stories regarding his drug use. The trial court expressed its
concern that there would not be enough time to rehabilitate defendant if he were sentenced as a juvenile
and that the investigators’ reports did not state that defendant could be rehabilitated in five years. The
trial court also stated that the background information that was provided to the investigator for the
presentence investigation report was false.
The prosecutor concedes on appeal that the trial court “did not make factual findings [as] to
each of the relevant criterion” under MCL 769.1(3); MSA 28.1072(3). Arguably, the trial court made
findings on defendant’s character, the seriousness of the offense, that defendant is likely to be dangerous
to the public if released at the age of twenty-one, and the best interest of the public welfare and the
protection of society. The trial court, however, did not make factual findings as to whether the offense
was part of a repetitive pattern which would lead to defendant not being amenable to treatment or that
defendant was likely to disrupt the rehabilitation of other juveniles in a juvenile treatment program. The
trial court also did not make factual findings regarding whether defendant is more likely to be
rehabilitated by the services of the juvenile or adult programs and procedures.
II. Standard Of Review
A. Opportunity To Consult With Counsel
This Court reviews constitutional questions de novo. People v Pitts, 222 Mich App 260, 263;
564 NW2d 93 (1997). Where an error is of constitutional dimension, “the prosecution bears the
burden of establishing the error is harmless beyond a reasonable doubt.” People v Levine, 231 Mich
App 213, 228; 585 NW2d 770 (1998).
B. Sentencing
“This Court reviews a trial court's findings of fact under a ‘clearly erroneous’ standard, while the
trial court's ultimate decision to sentence defendant as an adult is reviewed for an abuse of discretion.”
People v Dilling, 222 Mich App 44, 52; 564 NW2d 56 (1997).
III. Opportunity To Consult With Counsel
Defendant argues that the trial court denied him his right to assistance of counsel by refusing to
allow counsel and defendant to consult during the mid-trial recess. We disagree.
The right to assistance of counsel is fundamental. US Const, Am VI; Const 1963, art 1. The
United States Supreme Court stated in Geders v United States, 425 US 80; 96 S Ct 1330; 47 L Ed
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2d 592 (1976), that a defendant’s Sixth Amendment right to counsel was violated when a defendant, on
the eve of his cross-examination, was forbidden from consulting with his attorney during the overnight
recess. This Court has stated that “[t]he purpose of prohibiting an attorney and defendant from
consulting during recesses is to deter impropriety. The fear is that testimony will be fabricated in light of
the testimony already given.” People v Igaz, 119 Mich App 172, 178; 326 NW2d 420 (1982),
vacated on other grounds 418 Mich 893 (1983). This Court also stated that “under the present state of
the law the balance must be struck in favor of preserving the right to counsel, even where a short recess
is involved.” Id. at 179.
Here, however, we are not confronted with a situation where the trial court denied defendant his
right to consult with his attorney during the forty-eight minute recess. The request by defense counsel
was to meet with defendant and defendant’s mother. The trial court denied that request because there
was a shortage of security personnel available. Defense counsel did not thereafter request to meet with
defendant alone, and the trial court did not prohibit defense counsel from meeting with defendant alone.
The trial court did not deny defendant his right to counsel during the short recess, but merely denied a
meeting with defense counsel with defendant’s mother present.
Further, we conclude that any error was harmless beyond a reasonable doubt. Levine, supra,
231 Mich App 228. Defendant had three witnesses testify on his behalf before the recess began.
When the recess ended, forty-eight minutes later, defendant called an additional defense witness. After
that witness testified, there was a three hour and eighteen minute break. Defendant does not argue that
he was denied assistance of counsel during this break. Therefore, because defendant had ample
opportunity to confer with his counsel during an extended break prior to resting his case, any error was
harmless beyond a reasonable doubt.
IV. Sentencing
Defendant argues that the trial court failed to make sufficient findings of fact regarding the
statutory elements to sentence defendant, a juvenile, as an adult. We agree.
MCL 769.1(3); MSA 28.1072(3), as in force at the time of the crimes of which defendant was
convicted, provided:
A judge of a court having jurisdiction over a juvenile shall conduct a hearing at the
juvenile's sentencing to determine if the best interests of the juvenile and the public
would be served by placing the juvenile on probation and committing the juvenile to a
state institution or agency . . . , or by imposing any other sentence provided by law for
an adult offender. The rules of evidence do not apply to a hearing under this subsection.
In making this determination, the judge shall consider the following criteria giving each
weight as appropriate to the circumstances:
(a) The prior record and character of the juvenile, his or her physical and mental
maturity, and his or her pattern of living.
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(b) The seriousness and the circumstances of the offense.
(c) Whether the offense is part of a repetitive pattern of offenses which would
lead to 1 of the following determinations:
(i) The juvenile is not amenable to treatment.
(ii) That despite the juvenile's potential for treatment, the nature of the
juvenile's delinquent behavior is likely to disrupt the rehabilitation of other
juveniles in the treatment program.
(d) Whether, despite the juvenile's potential for treatment, the nature of the
juvenile's delinquent behavior is likely to render the juvenile dangerous to the public if
released at the age of 21.
(e) Whether the juvenile is more likely to be rehabilitated by the services and
facilities available in adult programs and procedures than in juvenile programs and
procedures.
(f) What is in the best interests of the public welfare and the protection of the
public security.[1]
This Court in People v Hazzard, 206 Mich App 658; 522 NW2d 910 (1994), found that
although “the trial judge made a number of piecemeal findings that were potentially relevant to the
statutory criteria, the trial court did not make complete, detailed findings with respect to each of the
requisite factors as required under MCR 6.931(E)(3) and (4).” Id. at 660. This Court in Hazzard
went on to find that it did not appear from that record that “the trial court attempted to weigh the
relevant factors in any meaningful way at the sentencing hearing.” Id. at 661. Due to the trial court’s
failure in Hazzard to make complete, detailed findings with respect to each of the requisite factors or to
weigh those factors in a meaningful way, this Court found that the trial court's decision to sentence
defendant as an adult constituted an abuse of discretion. Id.
As noted above, arguably, here the trial court made findings on defendant’s character, the
seriousness of the offense, that defendant is likely to be dangerous to the public if released at the age of
twenty-one, and that sentencing defendant as an adult would be in the best interest of the public welfare
and the protection of society. However, the trial court failed to make factual findings as to whether the
offense was part of a repetitive pattern which would lead to defendant not being amenable to treatment
or whether defendant was likely to disrupt the rehabilitation of other juveniles in a juvenile treatment
program. The trial court also failed to make factual findings regarding whether defendant is more likely
to be rehabilitated by the services and facilities of juvenile or adult programs and procedures.
Therefore, because the trial court failed to make specific and detailed findings of fact regarding
each of the statutory factors, we vacate defendant’s sentences and remand for further proceedings to
determine whether defendant should be sentenced as a juvenile or as an adult. Hazzard, supra, 206
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Mich App 661. In light of our resolution of this issue we need not address defendant’s remaining
sentencing issues.
We affirm defendant’s convictions, vacate his sentences, and remand for further proceedings to
determine whether defendant should be sentenced as a juvenile or as an adult. We do not retain
jurisdiction.
/s/ Harold Hood
/s/ Donald E. Holbrook, Jr.
/s/ William C. Whitbeck
1
Although MCL 769.1; MSA 28.1072 has been substantially revised, this is the version of section 3 in
effect when the instant offenses were committed.
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