PEOPLE OF MI V GEORGE CALICUT JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 7, 2001
Plaintiff-Appellee,
v
No. 224817
Wayne Circuit Court
Criminal Division
LC No. 99-003147
GEORGE CALICUT, JR.,
Defendant-Appellant.
Before: Zahra, P.J., and Smolenski and Talbot, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316, and was
sentenced to life imprisonment. He appeals as of right. We affirm.
Defendant’s conviction arises from the strangling and stabbing death of a woman who
was a friend of defendant’s family. The incident occurred at the home of the decedent. The
police traced defendant through his use of a cellular telephone that belonged to the decedent and
had been reported missing by her husband after the decedent was killed. Defendant admitted to
the police that he had the telephone and gave a statement confessing to the crime.
Defendant argues that the evidence adduced at trial was insufficient to support his
conviction because there was no evidence that he killed the decedent in connection with a
larceny. In reviewing whether the prosecution presented sufficient evidence to support a
conviction, we view the evidence in the light most favorable to the prosecution to determine
whether a rational trier of fact could find that the elements of the offense were proved beyond a
reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000). The
elements of felony murder are: (1) the killing of a human being, (2) with malice, (3) while
committing, attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in MCL 750.316(1)(b), of which larceny is one. People v Watkins, 247
Mich App 14, 32; 634 NW2d 370 (2001); 750.316(1)(b). “The facts and circumstances of the
killing may give rise to an inference of malice.” People v Carines, 460 Mich 750, 759; 597
NW2d 130 (1999).
Although he later denied the killing, in his statement to police defendant confessed to
becoming angry when the decedent said that she had no money to lend him. Defendant admitted
that he was high because he had been smoking crack cocaine. Defendant confessed to choking
and stabbing the decedent, and confessed to subsequently taking $5.00 and a cellular telephone.
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He also told the police where he left the bloody knife. The contents of the decedent’s purse had
been dumped onto the floor, the knife was in the kitchen sink where defendant said he left it, and
the phone was in defendant’s possession. Viewing the evidence and reasonable inferences
arising therefrom in the light most favorable to the prosecution, a rational trier of fact could find
that defendant killed the decedent and that he had the intent to commit a larceny at the time he
killed her. People v Brannon, 194 Mich App 121, 125; 486 NW2d 83 (1992).
Defendant also argues that he was denied a fair trial because his statement to police was
not electronically recorded. This issue was considered by this Court in People v Fike, 228 Mich
App 178, 183-186; 577 NW2d 903 (1998), which declined to extend Michigan’s constitutional
due process guarantees by requiring electronic recordings of all custodial confessions. Thus, we
find no plain error necessitating reversal. Carines, supra at 763-764.
Finally, defendant contends that he was denied his right to the effective assistance of
counsel. Defendant maintains that his counsel should have moved to suppress defendant’s
statement to police and evidence seized as a result of a consent search on the ground that both
were products of an unlawful arrest. Defendant also argues that his counsel should have moved
to suppress his statement on the basis that it was not voluntarily given. Because defendant did
not request a Ginther1 hearing below, our review is limited to errors apparent from the record.
People v Knapp, 244 Mich App 361, 385; 624 NW2d 227 (2001).
“To establish a claim of ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient and that there is a reasonable probability that, but for the
deficiency, the factfinder would not have convicted the defendant.” People v Snider, 239 Mich
App 393, 423-424; 608 NW2d 502 (2000), citing People v Pickens, 446 Mich 298, 312; 521
NW2d 797 (1994). “The defendant must overcome a strong presumption that counsel’s
assistance constituted sound trial strategy.” People v Stanaway, 446 Mich 643, 687; 521 NW2d
557 (1994). Defense counsel is not required to make frivolous or meritless motions. People v
Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998). This Court will not substitute its
judgment for that of trial counsel in matters of trial strategy, People v Avant, 235 Mich App 499,
508; 597 NW2d 864 (1999), or assess counsel’s competence with the benefit of hindsight.
People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
The police arrested defendant after learning that he had made a telephone call with the
cellular telephone which was missing, and suspected stolen, from the decedent’s home. Also, the
police found no sign of forced entry into the decedent’s house. We find no support in the record
for defendant’s claim that his arrest was not supported by probable cause. Nor is there any
support for defendant’s claim that his confession was not voluntarily made. The police officer
who took defendant’s statement first advised defendant of his Miranda2 rights and defendant
signed a written waiver. Based on the record before us, we do not find any error by counsel that
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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prejudiced the defense and deprived defendant of a fair trial, nor are we persuaded of the need to
remand this matter to the trial court for an evidentiary hearing.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Michael J. Talbot
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