PEOPLE OF MI V ARDELL ROBINSON JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 30, 2001
Plaintiff-Appellee,
v
No. 219686
Jackson Circuit Court
LC No. 98-087785-FC
ARDELL ROBINSON, JR.,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and McDonald and Saad, JJ.
PER CURIAM.
Defendant was charged with open murder, MCL 750.316; MSA 28.548, and possession
of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), for killing
Michael Cotton. Following a jury trial, he was convicted of manslaughter, MCL 750.321; MSA
28.553, and the felony-firearm charge. He was sentenced as a third habitual offender, MCL
769.11; MSA 28.1083, to a term of twenty to thirty years’ imprisonment for the manslaughter
conviction and a consecutive two-year term for the felony-firearm conviction. He appeals as of
right. We affirm.
Defendant first argues the trial court violated his federal and state right to confrontation
by admitting hearsay statements into evidence. We review a trial court’s decision to admit
evidence for abuse of discretion, and review the constitutional issue de novo. People v Stephen
Smith, 243 Mich App 657, 669, 682; ___ NW2d ___ (2000). A defendant has a right to confront
the witnesses against him, but admitted statements do not violate that right if they possess the
particularized guarantees of trustworthiness which the Confrontation Clause demands. See US
Const, Am VI; Const 1963, art 1, § 20; People v Poole, 444 Mich 151, 163-164; 506 NW2d 505
(1993). Reliability can be inferred without more in a case where the contested evidence falls
within a firmly rooted hearsay exception. People v Meredith, 459 Mich 62, 67; 586 NW2d 538
(1998). In this case, each of the two challenged witnesses’ statements was within one of the
exceptions to impermissible hearsay.
The first challenged statement was admitted by the trial court after the court found the
prosecutor had exercised due diligence in attempting to locate a witness and allowed the witness’
testimony from the preliminary examination to be read into the trial record. A trial court’s
determination of due diligence is a factual matter and the court’s findings will not be reversed
unless clearly erroneous. People v Wolford, 189 Mich App 478, 484; 473 NW2d 767 (1991).
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The prosecutor testified that attempts were made to locate the witness (or information of his
whereabouts) at his last known address, the homes of his relatives, and corrections rosters.
This is not a case where the prosecutor failed to follow up on any leads or ignored information he
already had. See People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). “The test is
whether the proponent of the evidence made good-faith efforts to procure the testimony, not
whether more stringent efforts would have produced it.” People v Conner, 182 Mich App 674,
681; 452 NW2d 877 (1990). The trial court did not abuse its discretion in finding that the
prosecution acted with due diligence and that the witness was unavailable; therefore the witness’
former testimony was not impermissible hearsay and thus did not violate the Confrontation
Clause. MRE 804(b)(1); Meredith, supra at 71.
The other challenged statement, made by the victim, implicated defendant as the shooter
and was admitted into evidence as an excited utterance. MRE 803(2) defines an excited
utterance as “[a] statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” The question is not strictly one
of time, but of the possibility for conscious reflection and the capacity to fabricate. People v
Larry Smith, 456 Mich 543, 551; 581 NW2d 654 (1998). Whether a statement made in response
to questioning should be excluded depends on the circumstances and whether it appears that the
statement was the result of reflective thought. Id. at 553. Here, the victim made the statement
several times to a number of witnesses minutes after he was shot, and the statement related
directly to the startling event – being shot. There was no time between the event and the
statement in which to reflect and fabricate the content of the statement. The question, “Who did
this?” was not suggestive and thus does not exclude the answer, “Ardell,” from the definition of
an excited utterance. The trial court is given wide discretion in its determination that the
declarant was still under the stress of the event, and did not abuse its discretion in admitting the
statement under this exception. Id. at 552. Because the statement was excepted from hearsay,
defendant’s right of confrontation was not violated. Meredith, supra.
Defendant next argues that he was denied effective assistance of counsel at sentencing
because defense counsel did not present character witnesses on defendant’s behalf. To merit
reversal of an otherwise valid conviction, defendant must show that counsel’s representation fell
below and objective standard of reasonableness and so prejudiced defendant that it denied him a
fair trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). This Court will not
second-guess counsel’s trial strategy. People v Emerson (After Remand), 203 Mich App 345,
349; 542 NW2d 3 (1994). At the evidentiary hearing, defense counsel testified that defendant
refused to provide any information when counsel asked, in person and by letter, what defendant
would like to have presented at the sentencing hearing. Defense counsel’s stated trial strategy, to
limit the proofs at sentencing to errors in the PSIR, has not been shown by defendant to be
unsound. Furthermore, defendant has not shown any resulting prejudice to his case because the
trial court ultimately denied resentencing despite the additional character witnesses testifying at
the evidentiary hearing.
Finally, defendant argues that his sentence was disproportionate and was based on the
trial court independently finding defendant guilty of murder. This Court reviews the sentence
imposed on an habitual offender for an abuse of discretion. People v Hansford (After Remand),
454 Mich 320, 323; 562 NW2d 460 (1997). A trial court does not abuse its discretion in giving a
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sentence within the statutory limits when an habitual offender demonstrates an inability to
conform his conduct to the law of society. Hansford, supra at 326. Because the statutory
maximum for the underlying felony of manslaughter was fifteen years, MCL 750.321; MSA
28.553, the third habitual offender statute provides for a maximum sentence of thirty years.
MCL 769.11; MSA 28.1083. At both the sentencing hearing and the evidentiary hearing, the
trial court especially noted the “egregious conduct” of defendant and the minimal likelihood of
his rehabilitation. Thus, the trial court did not abuse its discretion in sentencing defendant
because the sentence was within the statutory limits, and the court’s reasoning showed defendant
was unable to conform to the laws of society.
A sentencing judge is not permitted to make an independent finding of a defendant’s guilt
on another charge, or to consider an offense of which defendant was found not guilty, and use
that as a basis for justifying a sentence. People v Zuccarini, 172 Mich App 11, 17; 431 NW2d
436 (1988). However, consideration of the underlying facts of the offense is not precluded at
sentencing so long as those facts are sufficiently reliable. People v Ewing (After Remand), 435
Mich 443, 453; 458 NW2d 880 (1990). In this case, we find nothing in the record supporting
defendant’s assertion that the trial court made an independent finding of guilt on the murder
charge and sentenced defendant on the basis of that finding. The trial court did not depart from
the statutory sentencing limits for manslaughter, and because defendant was charged with open
murder, he had the opportunity to rebut the same facts considered by the sentencing court. The
trial court’s comments that defendant, in fact, killed the victim and that incarceration was the
only deterrence that might work merely reflect its reasoning for sentencing defendant to the
maximum sentence within the limits. The trial court correctly concluded that defendant could
not conform his conduct to that of society, and therefore did not abuse its discretion in sentencing
him to the maximum set by the statute.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Gary R. McDonald
/s/ Henry William Saad
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