PEOPLE OF MI V SHANTRELL DEVERES GARDNER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 5, 1999
Plaintiff-Appellee,
v
No. 208426
Muskegon Circuit Court
LC No. 97-140898 FC
SHANTRELL DEVERES GARDNER,
Defendant-Appellant.
Before: McDonald, P.J., and Neff and Smolenski, JJ.
PER CURIAM.
Defendant Shantrell Gardner appeals as of right his jury convictions of armed robbery, MCL
750.529; MSA 28.797, assault with intent to do great bodily harm less than murder, MCL 750.84;
MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2). Defendant was sentenced to serve concurrent terms of fifteen to fifty years’ imprisonment
for the armed robbery conviction and five to ten years for the assault, preceded by a mandatory two
year sentence for the felony-firearm conviction. We affirm.
I
This case arises out of an early morning armed robbery and shooting that occurred at the KDiscount store located in the city of Muskegon Heights on June 19, 1997. According to Michael
Hunter, one of the store clerks on duty that night, he was waiting on a customer sometime between
12:30 a.m. and 1:00 a.m., when an individual wearing a heavy black coat and mask entered the store
and then stepped behind the counter where Hunter and George Saqqa, a second clerk, were standing.
The individual told Saqqa to open his register, then pulled out a small-caliber pistol. At that point,
Saqqa attempted to open the register but had trouble doing so. The masked individual then cocked the
gun and shot Saqqa in the leg. The shooter turned toward Hunter and demanded that he open the other
register. Hunter opened the register and then stepped back while the perpetrator removed the money.
The individual put the money in his pocket and ran out the door.
II
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On appeal, defendant first argues that the prosecution failed to produce sufficient evidence of his
guilt. When determining whether sufficient evidence has been presented to sustain a conviction, this
Court must view the evidence in a light most favorable to the prosecution and determine whether a
rational trier of fact could have found that the essential elements of the crime were proved beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended on other
grounds 441 Mich 1201; 489 NW2d 748 (1992).
In this case, there was no dispute at trial that a robbery occurred nor that one of the store’s
clerks was shot during the course of that robbery. The sole issue at trial was the identity of the
perpetrator. Identity is always an essential element in a criminal prosecution. People v Oliphant, 399
Mich 472, 489; 250 NW2d 443 (1976). On appeal, defendant argues that because the prosecution
was unable to produce any direct evidence identifying him as the assailant, his conviction must be
reversed. Defendant claims that the evidence was insufficient because none of the three witnesses
present during the robbery could, with any certainty, identify defendant as the masked individual who
had robbed the store. We disagree. The evidence as a whole, when viewed in the light most favorable
to the prosecution, was sufficient to support defendant's convictions.
At trial, Hunter testified that before the robbery on June 19, 1997, defendant had been a
frequent customer of the store, coming in nearly every day, and each time wearing the same outfit.
Hunter testified that although he did not immediately recognize the similarity, the outfit worn by the
armed robber was the same as the outfit he had seen defendant wear on those daily visits to the store.
Hunter also stated that the mask worn by the gunman was identical to the one Hunter had on several
previous occasions asked defendant to remove while inside the store, and that based upon these factors
as well as the height and build of the assailant, Hunter believed defendant to be the perpetrator.
Hunter also identified the perpetrator’s weapon as a small-caliber pistol, and upon being shown
the gun that had been taken from defendant at the time of his arrest, Hunter stated that it appeared,
based on its size and distinctive pearl handle, to be the same gun held by the perpetrator during the
robbery.
A store customer who was present during the robbery also provided testimony linking
defendant to the crime. According to Sharlene Shelton, she was at Hunter’s counter purchasing beer
when an individual approximately the same height as defendant entered and robbed the store. Shelton
testified that the gun used by the perpetrator to shoot Saqqa closely resembled that taken from
defendant at the time of his arrest, and further stated that she thought it was odd that she was not
stopped or robbed by the masked assailant, because she left the store immediately after the clerk was
shot and before the assailant fled. During her testimony, Shelton revealed that she was acquainted with
defendant inasmuch as his sister and her brother had a child together. Although Shelton stated that she
did not recognize the perpetrator’s voice as that of defendant, her testimony provided further evidence
to justify a reasonable trier of fact in concluding that defendant committed the robbery.
The prosecution also offered additional evidence implicating defendant. The manager of a hotel
located across the street from the store testified that she saw defendant wearing a hooded sweatshirt
and hanging around in the parking lot of the store shortly before the robbery. The manager recalled
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seeing defendant running from the back of the store between 12:30 a.m. and 1:15 a.m., shortly before
the police and ambulance arrived.
A former employee of the K-Discount store also testified that approximately a week before the
robbery defendant had approached her and inquired about security measures in the store. In addition, a
resident of the hotel across the street testified that on the night of the robbery, she went to K-Discount
to make a purchase and, while entering the store, saw defendant in the back parking lot and recalled
that he was wearing a coat similar to the one alleged to have been worn by the perpetrator. After
making her purchase, the resident returned to the hotel and, approximately three to four minutes later,
was informed by the manager that a robbery had just occurred at K-Discount.
More directly, Aeron Sims, another acquaintance of defendant, testified that after the robbery
defendant approached him regarding the purchase of crack cocaine. Sims stated that defendant told
Sims that he robbed the store, and that he shot the clerk because he did not open the cash register fast
enough. Further, defendant told Sims he received approximately $400 from the robbery, then paid
Sims $100 for the cocaine. We note that the amount defendant boasted of taking closely coincides with
the amount claimed by the store’s owner to have been taken in the robbery. At trial, the owner testified
that after the robbery he determined that an amount between $500 and $600 had been stolen.
The prosecution also presented evidence indicating that defendant had attempted to hide his
identity as the perpetrator by inducing others to fraudulently provide him with an alibi. Travonda Hall,
an acquaintance of defendant, testified that while she was incarcerated in the Muskegon County jail she
received a letter, which she believed was from defendant. Hall stated that she recognized the
handwriting on the letter as that of defendant and further indicated that the letter was signed “Trell.”
Hall refused to read the letter during trial, but stated that, in the letter, defendant asked her to lie for him
by alleging that someone else had robbed the store. The letter, admitted into evidence, requested that
Hall tell the authorities that she was with defendant outside K-Discount at the time of the robbery and
that the two of them saw another unknown individual, wearing a mask and a black winter coat, run past
them. On questioning by the prosecutor, Hall admitted that she was not with defendant at the time of
the robbery.
The prosecution also presented evidence linking the pistol found on defendant at the time of his
arrest with the pistol used in the robbery. An expert in firearms identification testified that the bullet
removed from Saqqa’s leg had been fired from the same .25-caliber pistol found on defendant at the
time of his arrest.
This evidence, and all reasonable inferences drawn therefrom, was sufficient to sustain
defendant's convictions of armed robbery, assault, and felony-firearm. See People v Godbold, 230
Mich App 508, 522-523; 585 NW2d 13 (1998).
III
Defendant next argues that in effecting his arrest, the police violated his state and federal right to
be free from unreasonable seizures. US Const, Am IV; Const 1963, art 1, § 11.1 We again disagree.
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The trial court held a suppression hearing where defendant unsuccessfully argued that the gun
found on defendant was discovered as a result of an illegal arrest. On appeal, defendant renews this
argument, contending that his arrest without a warrant was unconstitutional because the police did not
have probable cause to arrest him.
This Court reviews a trial court's findings of fact in deciding a motion to suppress for clear error,
but reviews de novo the trial court's ultimate decision regarding a motion to suppress. People v
Powell, 235 Mich App 557, 560; ___ NW2d ___ (1999).
A
“A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the
Fourth Amendment.” People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996). “A police
officer may arrest an individual without a warrant if a felony has been committed and the officer has
probable cause to believe that the individual committed the felony.” People v Kelly, 231 Mich App
627, 631; 588 NW2d 480 (1998); MCL 764.15(c); MSA 28.874(c). “In reviewing a challenged
finding of probable cause, [this Court] must determine whether the facts available to the arresting officer
at the moment of arrest would justify a fair-minded person of average intelligence in believing that the
suspected individual had committed the felony.” Kelly, supra at 631, citing People v Oliver, 417 Mich
366, 374; 338 NW2d 167 (1983). “The standard is one of objective reasonableness without regard to
the underlying intent or motivation of the officers involved.” People v Holbrook, 154 Mich App 508,
511; 397 NW2d 832 (1986).
In this case, the record reveals that the officers presented substantial evidence from which it was
possible to identify defendant as the perpetrator of an armed robbery and shooting that had occurred
ten days before the present incident. The testimony of the detective investigating the matter established
that several witnesses had positively identified defendant as either being the perpetrator or being present
near the scene immediately before and after the robbery. In addition, the officer had interviewed
another individual who said that defendant had boasted of committing the crime. “Probable cause
requires only a probability or substantial chance of criminal activity, not an actual showing of criminal
activity.” People v Lyon, 227 Mich App 599, 611; 577 NW2d 124 (1998). Given the abundance of
information linking defendant to the robbery, we find that the officers had probable cause on which to
base defendant’s warrantless arrest.
B
Defendant also appears to argue that because the arresting officer did not himself have personal
knowledge of the facts underlying the investigating officer’s request to apprehend defendant, the arrest
was constitutionally invalid. This argument lacks merit.
Initially, we note that at the hearing on the motion to suppress, the arresting officer testified that
the detective who requested defendant’s arrest had informed him that one of the robbery victims
positively identified defendant as the perpetrator. This knowledge alone was likely sufficient for
probable cause to arrest defendant on suspicion of the robbery.
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That notwithstanding, under the “police team” theory of probable cause, the additional factual
knowledge held by the investigating officer may be imputed to the arresting officer. People v Dixon,
392 Mich 691, 696-699; 222 NW2d 749 (1974) (collective perceptions of officers working on a case
may be combined to satisfy the presence requirement for a misdemeanor arrest); People v Mackey,
121 Mich App 748, 753-754; 329 NW2d 476 (1982) (information from a fellow officer may properly
be used as the basis of a warrant affidavit); United States v McManus, 560 F2d 747, 750 (CA 6,
1977) (probable cause for arrest may rest upon the collective knowledge of the police, rather than
solely on that of the officer who actually makes the arrest).
In this case, the arresting officer was acting on the basis of both his limited personal knowledge
of the factual basis underlying probable cause to believe defendant was the armed robbery perpetrator,
as well as the facts uncovered by the investigating officer through his initial investigation of the crime. As
such, the arrest was properly based upon probable cause and admission of the gun into evidence was
not error.
C
Next, defendant argues that he was illegally arrested solely for questioning. “[A]n arrest for
questioning [is] an illegal police practice long condemned by the United States Supreme Court and the
appellate courts of this state.” Kelly, supra at 633. However, based upon our finding that the officers
possessed probable cause to effect an arrest of defendant as a suspect in the armed robbery, we find
the arrest was proper. See, e.g., People v Cook, 153 Mich App 89, 91; 395 NW2d 16 (1986); see
also Kelly, supra at 633 (“an officer’s characterization of an arrest is not determinative of its legality”).
IV
Defendant’s final argument is that the trial court erred in allowing the prosecution to present
rebuttal testimony. Generally, the decision to admit evidence in rebuttal rests within the trial court's
discretion. People v Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996). However, in this case,
defendant’s objection at trial was based upon the prosecutor’s failure to endorse the rebuttal witness,
not that such testimony would constitute improper rebuttal. An objection based on one ground is
insufficient to preserve an appellate attack based on a different ground. People v Maleski, 220 Mich
App 518, 523; 560 NW2d 71 (1996). Failure to preserve this allegation of error at trial precludes
appellate review absent a showing of plain error that affected substantial rights. People v Grant, 445
Mich 535, 545-546, 552-553; 520 NW2d 123 (1994); People v Rice (On Remand), 235 Mich App
429, 441-442; 597 NW2d 843 (1999). In light of the nature of the alleged error and the substantial
evidence against defendant, we are unpersuaded that such prejudice would result from our refusal to
review this issue.
Affirmed.
/s/ Gary R. McDonald
/s/ Janet T. Neff
/s/ Michael R. Smolenski
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1
Defendant presents this same argument in a separate appeal to this Court, Docket No. 211081, on the
same facts. Our resolution is identical in both cases.
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