PEOPLE OF MI V TIMOTHY BETTEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2001
Plaintiff-Appellee,
v
TIMOTHY BETTEN, a/k/a TIMOTHY BETTIN
No. 222463
Kent Circuit Court
LC No. 98-011381-FC
Defendant-Appellant.
Before: Gage, P.J., and Jansen and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree premeditated murder,
MCL 750.316(1)(a). The trial court sentenced him as a fourth habitual offender, MCL 769.12, to
life imprisonment without parole. Defendant appeals as of right. We affirm.
I
Defendant first contends that insufficient evidence of premeditation and deliberation
supported his conviction of first-degree murder. The test for determining the sufficiency of
evidence in a criminal case is whether the evidence, viewed in a light most favorable to the
prosecution, would warrant a reasonable juror in finding guilt beyond a reasonable doubt.
People v Nowack, 462 Mich 392, 399; 614 NW2d 78 (2000). All conflicts in the evidence must
be resolved in favor of the prosecution. This Court should not interfere with the jury's role of
determining the weight of evidence or the credibility of witnesses. People v Terry, 224 Mich
App 447, 452; 569 NW2d 641 (1997).
To prove first-degree premeditated murder, the prosecution must establish that the
defendant intentionally killed the victim and that the act of killing was premeditated and
deliberate. Premeditation and deliberation require sufficient time to allow the defendant to take a
second look. Premeditation and deliberation may be established by evidence of (1) the prior
relationship of the parties, (2) the defendant’s actions before the killing, (3) the circumstances of
the killing itself, and (4) the defendant’s conduct after the homicide. People v Abraham, 234
Mich App 640, 656; 599 NW2d 736 (1999).
Evidence indicated that before the victim was killed, snoring could be heard from outside
his bedroom door, thus raising the inference that the victim was asleep when defendant entered
the residence through a bedroom window. No defensive marks appeared on the victim’s body,
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indicating that the victim was not killed during an altercation. While the victim was alive, he
was struck three times on the head with a blunt object, possibly a four-way tire iron like the one
that the police recovered from the apartment shared by defendant and the victim. The victim
also was alive when he was stabbed in the heart with a kitchen knife, before he was strangled
with a clothesline. This sequence of events reflects the killer’s opportunity between each method
of assault to reflect on his actions. People v Kelly, 231 Mich App 627, 642; 588 NW2d 480
(1998).
Further evidence indicated that the victim dealt drugs from his bedroom and that
defendant, who had money problems, was angry that the victim had taken over the apartment and
did not contribute rent money. After the victim was killed defendant told acquaintances that the
victim had gone home to Detroit, and that he (defendant) no longer had any financial problems.
Defendant had so much crack cocaine that he uncharacteristically shared it with his friends.
Defendant was discovered attempting to cover the victim’s body with dirt, and admitted that he
had gone to great efforts to hide and dispose of all traces of the body. Contrary to defendant’s
argument, his conduct in disposing of the body and other evidence may be considered in
determining whether premeditation and deliberation existed. Abraham, supra.
Viewing this abundant evidence in the light most favorable to the prosecution, we
conclude that the evidence was sufficient to enable the jury to reasonably find the elements of
premeditation and deliberation beyond a reasonable doubt.
II
Defendant also argues that the trial court improperly refused to admit testimony by two of
defendant’s neighbors that three days after the estimated time of the murder they heard an
unidentified voice inside defendant’s residence say, “Jackie, you killed the son of a bitch,” “The
bitch did it,” and “They killed him.” Defendant contends that the statements, although hearsay,
were admissible under MRE 803(2), (3) and (24).
With respect to MRE 803(2), no indication existed that the statements arose out of a
startling event, particularly considering that they were made several days after the likely time of
the victim’s murder. Moreover, because the declarant and the circumstances surrounding the
statements were unknown, it was not established that the declarant lacked the capacity for
contrivance or misrepresentation. Thus, we conclude that the trial court did not abuse its
discretion in finding the statements inadmissible as excited utterances. People v Smith, 456 Mich
543, 551; 581 NW2d 654 (1998); People v Kowalak (On Remand), 215 Mich App 554, 557-558;
546 NW2d 681 (1996).
The statements also were inadmissible under the state of mind exception, MRE 803(3),
because the unidentified declarant’s state of mind was not at issue, and no indication existed that
the unidentified declarant acted in accordance with his or her stated intention. People v
Brownridge, 225 Mich App 291, 305; 570 NW2d 672 (1997), rev’d in part on other grounds 459
Mich 456; 591 NW2d 26 (1999); McCallum v Dep’t of Corrections, 197 Mich App 589, 605;
496 NW2d 361 (1992).
We further conclude that the trial court did not abuse its discretion in refusing to admit
the statements pursuant to MRE 803(24) because defendant failed to show that the statements
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possessed adequate indicia of reliability to fall within the catch all exception. People v Lee, 243
Mich App 163, 170-178; 622 NW2d 71 (2000).
III
Defendant next asserts that the trial court erred in permitting the prosecutor to inquire on
redirect examination of a witness into certain matters that allegedly exceeded the scope of
defense counsel’s cross examination. Because defense counsel had the opportunity to conduct
recross examination and because defendant has demonstrated no prejudice from the allegedly
improper testimony that was permitted on redirect, we conclude that defendant has failed to
show that the trial court abused its discretion in permitting an open redirect examination. MRE
611(a), (b); People v Stevens, 230 Mich App 502, 507; 584 NW2d 369 (1998).
IV
Defendant additionally submits that the trial court improperly permitted the prosecutor to
present evidence of his postarrest silence to rebut defense counsel’s opening statement that,
“once defendant was apprehended . . ., he summoned the police to him and told them exactly
what his involvement was.” The trial court permitted a police officer to testify that shortly after
defendant was arrested on August 31, 1998, he questioned defendant about the body, and that
defendant would not discuss the matter until he gave a statement approximately one week later.
A defendant’s silence may be used to impeach his testimony that he gave an exculpatory
statement to the police. People v Sutton (After Remand), 436 Mich 575, 579; 464 NW2d 276,
amended on other grounds 437 Mich 1208 (1990); People v Allen, 201 Mich App 98, 102; 505
NW2d 869 (1993). In this case, defendant through his counsel expressed his intent to prove that
“once he was apprehended” he advised the police “exactly what his involvement” was in the
victim’s murder. See MCR 6.414(B) (providing that a defendant’s opening statement “must
make a full and fair statement of the [defendant]’s case and the facts the [defendant] intends to
prove”). In light of defendant’s proposal to demonstrate his postarrest cooperation with the
police, we find that the trial court properly permitted the prosecutor to rebut defendant’s
allegations of willing cooperation with evidence of defendant’s post arrest silence. Allen, supra
at 103-104.
We further note that even assuming the trial court erred in admitting references to
defendant’s post arrest silence, any nonstructural constitutional error that occurred was harmless
beyond a reasonable doubt in light of the abundant and overwhelming other evidence of
defendant’s guilt. People v Duncan, 462 Mich 47, 51-52; 610 NW2d 551 (2000).
V
We next reject defendant’s contention that the trial court erred in admitting the irrelevant
and unfairly prejudicial testimony of a sanitation worker who found a knife in a sewer drain
approximately six months after the victim’s murder. Evidence regarding the discovery of the
knife in a sewer drain behind a bar was relevant because it tended to establish the credibility of a
jail inmate who testified that defendant advised him of the knife’s whereabouts, and likewise
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tended to tie the knife to defendant as one of the murder weapons he employed.1 MRE 401;
People v Mumford, 183 Mich App 149, 152; 455 NW2d 51 (1990). Furthermore, we are unable
to conclude that the probative value of this evidence was substantially outweighed by some
unfair prejudice to defendant given his failure to specifically allege what prejudice he endured.
MRE 403. Accordingly, we cannot conclude that the trial court abused its discretion in
admitting the testimony regarding the knife’s discovery. People v Lukity, 460 Mich 484, 488;
596 NW2d 607 (1999).
VI
Defendant also challenges the validity of a witness’ on-the-scene identification of him as
improper and unduly suggestive. Defendant failed to preserve this issue, however, with an
appropriate trial court objection to the identification testimony. Therefore, appellate review is
foreclosed absent a plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). Because defendant does not claim that the on-the-scene
identification was untimely conducted, and because the record contains no indication that the
identification was unduly suggestive, we conclude that defendant has failed to show plain error.
People v Winters, 225 Mich App 718, 721-728; 571 NW2d 764 (1997).
VII
Defendant next contends that two jail inmate witnesses against him were acting as agents
of the state, and therefore should have advised him of his Miranda rights before questioning him
about the murder. Defendant also suggests that he had a right to have counsel present during this
questioning. Defendant’s failure to preserve these issues by raising them below forecloses
appellate relief absent a plain error affecting his substantial rights. Carines, supra.
After reviewing the record, we find absolutely no indication that either inmate acted as an
agent for the police. Furthermore, even if defendant could prove that the inmates acted as police
agents, they were not required before speaking with defendant to provide him with Miranda
warnings or otherwise announce that they were police agents of the police. People v Fox (After
Remand), 232 Mich App 541, 552-553; 591 NW2d 384 (1998).
With respect to defendant’s claim that he was entitled to counsel when talking with the
inmates, we note that “the Sixth Amendment right to counsel does not attach until a prosecution
is commenced, that is until the initiation of adversary criminal proceedings by a formal charge, a
preliminary hearing, an indictment, an information, or an arraignment.” People v Riggs, 223
Mich App 662, 676; 568 NW2d 101 (1997). Defendant was not charged with murder until after
most of the information obtained by the inmates had been elicited.
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We note that the sanitation worker’s testimony at trial to his belief that the knife had been in the
drain for “at least a couple months because of the amount of dirt that was above it” did not
preclude the possibility that the knife, which the worker recovered in February 1999, had been
placed there more than two months before it was discovered, i.e., before defendant’s arrest on
August 31, 1998.
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Regarding the Fifth Amendment right to counsel, this Court in People v Williams, 244
Mich App 533, 539; 624 NW2d 575 (2001), stated the following:
The right to counsel found in the Fifth Amendment “is designed to
counteract the ‘inherently compelling pressures’ of custodial interrogation,”
McNeil v Wisconsin, 502 US 171, 176; 111 S Ct 2204; 115 L Ed 2d 158 (1991),
citing Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and
to secure a person’s privilege against self-incrimination by allowing a suspect to
elect to converse “with the police only through counsel.” McNeil, supra at 176.
The procedural safeguards for this right to counsel adopted in Miranda require
that the police discontinue the questioning of a suspect when a request for counsel
is made. These safeguards, however, apply only when there is a custodial
interrogation of a suspect.
In order for the Fifth Amendment right to counsel to attach, defendant must show that the
inmates were agents of the police. Because the record does not support defendant’s claim that
the inmates who questioned him were police agents, thus invoking the Fifth Amendment,
defendant’s Fifth Amendment right to counsel claim necessarily fails.
Accordingly, we find that defendant has failed to show any plain error affecting his
substantial rights arising from the inmates’ discussions with and questioning of defendant.
VIII
Defendant further asserts this Court should remand the case for an evidentiary hearing to
determine whether the tire iron the police found inside defendant’s apartment had been cleaned,
consistent with a jail inmate’s testimony that defendant told him that the police would find
nothing on the tire iron because defendant had cleaned it. In support of his request for a remand,
defendant offers nothing beyond complete speculation that the tire iron might not have been
washed, which speculation is insufficient to satisfy MCR 7.211(C)(1)(a)(ii). Given the
overwhelming evidence of defendant’s guilt, he has failed to demonstrate that the jury’s hearing
of testimony that the tire iron was not clean would have altered the outcome of the case.
Carines, supra at 774.
IX
We next reject defendant’s various contentions that he was denied the effective assistance
of counsel. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000); People v Williams,
240 Mich App 316, 331-332; 614 NW2d 647 (2000). Defendant’s claim that his counsel
ineffectively failed to file a motion to quash the search warrant because the affiant did not have
personal knowledge of the facts alleged lacks merit. To prevail on a motion to suppress evidence
seized pursuant to a search warrant procured by a defective affidavit, the defendant must show
by a preponderance of the evidence that the affiant knowingly and intentionally, or with reckless
disregard for the truth, inserted false material into the affidavit or made material omissions and
that the false or omitted material was necessary to a finding of probable cause. People v Stumpf,
196 Mich App 218, 224; 492 NW2d 795 (1992). Defendant’s reliance on People v Mackey, 121
Mich App 748, 753-755; 329 NW2d 476 (1982), is misplaced because the affidavit in this case
clearly demonstrates that whatever information the affiant did not personally obtain he acquired
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from fellow officers. Furthermore, the affidavit provided probable cause to search defendant’s
residence. People v Snider, 239 Mich App 393, 406-407; 608 NW2d 502 (2000). Defendant has
failed to demonstrate any basis on which defense counsel successfully could have moved to
quash the search warrant.
Defense counsel did not betray attorney-client confidentiality when she provided the
prosecutor with a copy of the report prepared by defendant’s private investigator, as required by
MCR 6.201(A)(2). People v Holtzman, 234 Mich App 166, 189; 593 NW2d 617 (1999).
Defendant has not shown that the investigator’s report contained any “mental impressions,
conclusions, opinions, or legal theories . . . concerning the litigation.” MCR 2.302(B)(3).
We also find that defense counsel was not ineffective for failing to object to the
prosecutor’s insinuation that a witness had not told the truth. The prosecutor is permitted to
comment on the testimony in a case and to argue on the basis of the facts presented that a witness
is not worthy of belief or is lying. People v Gilbert, 183 Mich App 741, 745-746; 455 NW2d
731 (1990).
Defendant failed to show that his counsel rendered ineffective assistance by not objecting
to the court’s instructions to the jury. After reviewing the instructions as a whole, we find that
they fairly presented the issues to be tried and sufficiently protected defendant’s rights. People v
Cain, 238 Mich App 95, 127; 605 NW2d 28 (1999).
The record also belies defendant’s assertion that counsel inadequately investigated the
case. Furthermore, after reviewing defendant’s numerous other claims of ineffective assistance,
we find that defendant’s remaining claims involve matters of trial strategy, which we will not
second guess. People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997); People v Stewart
(On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
We conclude that defendant has not overcome the presumption that he received the
effective assistance of counsel. Williams, supra.
X
Defendant lastly argues that his due process rights were violated because his arrest for
cocaine possession was used as a pretext to search for evidence that he murdered the victim.
Defendant claims that the prosecutor utilized the undue delay to place an informant, whom the
police directed and manipulated, near him to learn his defense strategies.
Pretext arrests occur when an officer, although making an apparently lawful arrest, is
making the arrest to conduct a search for which there is no independent probable cause, in
violation of the basic principle that an arrest may not be used as a pretext to search for evidence.
People v Holloway, 416 Mich 288, 306 (Levin, J., dissenting); 330 NW2d 405 (1982); People v
Haney, 192 Mich App 207, 209; 480 NW2d 322 (1991). The factors to be considered in
determining whether a stop or arrest was a mere pretext include the following:
[T]he reasonableness of an arrest depends on the existence of two
objective factors. First, did the arresting officer have probable cause to believe
that the defendant had committed or was committing an offense? Second, was the
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arresting officer authorized by state or municipal law to effect a custodial arrest
for the particular offense? If these two factors are present, we believe that a stop
or arrest is necessarily reasonable under the Fourth Amendment. In other words,
as long as the police are doing no more than they are legally permitted and
objectively authorized to do, a stop or arrest is constitutional. [Haney, supra at
210.]
We find that at the time of defendant’s arrest for cocaine possession the police had
probable cause to believe that he had committed an offense because he fit the description of the
man seen using a shovel at the site where the victim’s body was found and because the car that
the man was driving was registered to defendant’s wife and was discovered parked in front of
defendant’s residence. When defendant saw the police, he ran. On defendant’s capture, a search
of his person yielded crack cocaine, and defendant was arrested and charged for possession of
cocaine. No question exists that under these circumstances the police officers were authorized to
arrest defendant for possession of cocaine. We therefore conclude that the arrest for possession
of cocaine was reasonable. Haney, supra.
We also find defendant’s suggestion of undue delay without merit. On August 31, 1998,
defendant was arrested and immediately charged with possession of cocaine. In light of
defendant’s status a murder suspect, which was solidified after the police searched his apartment
on the day of his arrest, later that same day two detectives approached defendant in jail to talk
about the victim’s body. Because defendant would not talk about the body, the police
investigation into the murder continued. On September 7, defendant made it known that he
wanted to talk to the police about the body, and the police visited the jail the next day and took
defendant’s statement. The record shows that the police did not start talking with the jail
informant until after defendant had made his statement.
The threshold test for determining whether a delay constitutes a denial of due process is
whether the defendant suffered prejudice. People v Reddish, 181 Mich App 625, 627; 450
NW2d 16 (1989). The defendant must show substantial prejudice to his right to a fair trial and
an intent by the prosecution to gain a tactical advantage. People v White, 208 Mich App 126,
134; 527 NW2d 34 (1994). The defendant must demonstrate “actual and substantial” prejudice
to his right to a fair trial, which requires more than generalized allegations. People v Adams, 232
Mich App 128, 134-135; 591 NW2d 44 (1998).
We find that defendant has offered nothing more than mere allegations in support of his
claim that his arrest constituted a pretext to permit the police to gather information by placing an
informant near defendant in the jail. Consequently, we conclude that defendant was not denied
his due process rights.
Affirmed.
/s/ Hilda R. Gage
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
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