PEOPLE OF MI V JAMES KELLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 17, 2002
Plaintiff-Appellee,
v
No. 233756
Wayne Circuit Court
LC No. 99-012588-01
JAMES KELLEY, a/k/a JAMES KELLY,
Defendant-Appellant.
Before: Kelly, P.J. and Jansen and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony, MCL 750.227b. The
trial court sentenced defendant to a term of twenty to forty years’ imprisonment for the seconddegree murder conviction and two consecutive years’ imprisonment for the felony-firearm
conviction. We affirm.
I. Basic Facts and Procedural History
On November 9, 1999, Senita Bentley sustained multiple gunshot wounds that resulted in
her death. Earlier that evening, Bentley’s friend, Sheila Smith, saw defendant at Bentley’s house.
Several hours later, Smith returned to Bentley’s house and heard two sounds, which she later
believed to be gunshots. Smith went to the door and rang the bell. No one answered, but Smith
observed a man looking out the window. While Smith was unable to see the man’s face, she
noticed that he was wearing the same clothes that she had observed defendant wearing earlier
that evening. Smith then observed the man running from Bentley’s house to a burgundy car that
she had observed defendant driving in earlier that evening.
When the police arrived, the living room of Bentley’s home displayed signs of a struggle.
Blood found on the doorknob was linked to defendant by DNA testing. Defendant, who had a
previous sexual relationship with Bentley, was arrested on November 22, 1999. A warrant was
issued the next day. On November 24, 1999, defendant made a statement to the police in which
he denied killing Bentley. The following colloquy was contained in defendant’s statement:
Q.
Why did you kill [Bentley]?
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A.
didn’t.
I
Q.
Why is everyone saying you did?
A.
I have no idea. Maybe because I did not come back over to the house on
Ward and for not coming around after.
No objection was made to this portion of the statement at trial.
At the conclusion of trial, the trial court convicted defendant of second-degree murder
and possession of a firearm during the commission of a felony.
II. Ineffective Assistance Of Counsel
Defendant first argues that he was denied the effective assistance of counsel. Because
this Court denied defendant’s motion to remand this case to the lower court for a Ginther1
hearing2, our review of this issue is limited to errors apparent on the existing record. People v
Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
Effective assistance is presumed, and the defendant bears a heavy burden of proving
otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). We will not reverse
a conviction based on ineffective assistance of counsel unless the defendant establishes (1)
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms and (2) there is a reasonable probability that, but for counsel’s error, the
result of the proceedings would have been different. Strickland v Washington, 466 US 668, 687;
104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Toma, 462 Mich 281, 302-303; 613 NW2d 694
(2000). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
A. Pre-Arraignment Delay
Defendant first contends his trial counsel was ineffective because he failed to move to
suppress his custodial statement on the ground that it was illegally obtained during an
unreasonable pre-arraignment delay. We disagree.
A delay of more than forty-eight hours between arrest and arraignment is presumptively
unreasonable and violative of the Fourth Amendment. Riverside Co v McLaughlin, 500 US 44,
56-57; 111 S Ct 1661; 114 L Ed 2d 49 (1991); People v McKinney, 251 Mich App 205, 208; 650
NW2d 353 (2002); People v Manning, 243 Mich App 615, 631, 643; 624 NW2d 746 (2000).3
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
People v Kelley, unpublished order of the Court of Appeals, entered February 19, 2002 (Docket
No. 233756).
3
Further, if the police arrest a person without a warrant, that person must be brought before a
magistrate for arraignment without unnecessary delay. MCL 764.13; Manning, supra at 622. In
(continued…)
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Because defendant did not raise this issue below, the exact time between his arrest and the
arraignment is unknown. However, the record indicates that defendant was arrested on
November 22, 1999, at 2:15 p.m. A warrant was issued on November 23, 1999. Defendant was
arraigned on November 24, 1999. Trial testimony indicated that defendant made his statement
on November 24, 1999, “at about 9:40 a.m.” Accordingly, the length of detention was
approximately forty-three to forty-four hours and thus, was not presumptively unreasonable.
Riverside, supra at 55-57; see also Manning, supra at 628-629.
However, a delay of less than forty-eight hours may also be unreasonable. Manning,
supra at 630-631. “Examples of unreasonable delay are delays for the purpose of gathering
additional evidence to justify the arrest, a delay motivated by ill will against the arrested
individual, or delay for delay's sake.” Id. at 630, quoting Riverside, supra at 56-57. The record
in this case does not suggest that the police were improperly motivated by a desire to gain
additional information for the arrest such that they intentionally delayed arraignment to elicit an
incriminating statement. People v McCray, 210 Mich App 9, 12; 533 NW2d 359 (1995). To the
contrary, an arrest warrant based on a probable cause determination by a magistrate had already
been issued the day before defendant made his statement to the police. Thus, a magistrate found
probable cause to arrest defendant without considering his statement.
Furthermore, we find defendant’s reliance on Riverside, for the proposition that his arrest
was constitutionally unreasonable, to be misplaced. In Riverside, the Court held that the failure
to provide a judicial determination of probable cause within forty-eight hours of an arrest is
presumptively unreasonable and violative of the Fourth Amendment. Riverside, supra at 55-57,
see also Manning, supra at 628-629. In Manning, this Court explained Riverside as follows:
When a person is arrested without a warrant, . . . no judicial officer has yet found
that there was reasonable cause for his arrest. Thus, while all accused persons are
“presumptively innocent until proven guilty,” when a person is being held without
a warrant or probable cause hearing, a judicial officer has not yet determined that
there is even reasonable cause to believe the person committed a crime.
Therefore, when Justice Scalia referred in his dissent in Riverside Co to an
“innocent arrestee,” he was quite literally correct. [Manning, supra at 622].
Here, the day after defendant’s custodial arrest, and before he made his statement, a
magistrate issued an arrest warrant based on probable cause. Therefore, a judicial determination
of probable cause was made well within the presumptively unreasonable forty-eight hours.
Therefore, defendant was not an “innocent arrestee” at the time of his arraignment. Manning,
supra at 622.
Finally, a delay, standing alone, does not necessarily require the suppression of statements
obtained while a person is in police custody during the delay. Instead, the proper analysis is
(…continued)
addition, a person charged with a felony must be brought before a magistrate for arraignment
without unnecessary delay. MCL 764.26.
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whether the person’s statement was obtained voluntarily as determined by the factors listed in
People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). Unreasonable delay before
arraignment is but one factor that should be considered in determining whether a defendant’s
custodial statement was voluntary. Manning, supra at 643.
The Michigan Supreme Court in Cipriano set forth the following nonexclusive list of
factors to determine whether a statement is voluntarily made:
[T]he age of the accused; his lack of education or his intelligence level; the extent
of his previous experience with the police; the repeated and prolonged nature of
the questioning; the length of the detention of the accused before he gave the
statement in question; the lack of any advice to the accused of his constitutional
rights; whether there was an unnecessary delay in bring him before a magistrate
before he gave his confession; whether the accused was injured, intoxicated or
drugged, or in ill health when he gave the statement; whether the accused was
deprived of food, sleep, or medical attention; whether the accused was physically
abused; and whether the suspect was threatened with abuse. [Cipriano, supra at
334.]
Considering the evidence in light of these factors, we find that defendant’s statement was
voluntarily given. First, the record indicates that defendant received and understood his
Miranda4 rights. Defendant never requested an attorney. Second, the record does not indicate
that defendant was uneducated, illiterate or unintelligent. Defendant was age twenty-eight, could
read and write and completed a ninth grade education. Defendant read his statement and made
several changes, in his handwriting, to the typed copy of his statement before he signed it. Third,
there is no indication that defendant was ill, physically abused or threatened when he gave the
statement. Fourth, defendant told the officer taking the statement that he was not under the
influence of alcohol, narcotics or prescription medication. His statement indicated that the last
time he smoked crack was a month ago and that he never smoked marijuana. Fifth, there was no
indication that defendant had been deprived of food, water or sleep before making his statement.
Sixth, defendant had prior experience with the police because he was convicted of receiving and
concealing stolen property in 1997.
Because we find that defendant’s statement was voluntary, defense counsel was not
ineffective for failing to move to suppress it. Defense counsel was not required to bring a
frivolous or meritless motion. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
B. Witness Opinion and Hearsay
Defendant also argues his trial counsel was ineffective because he did not object to the
portion of the custodial statement that he alleges reveals inadmissible witness opinions that
defendant killed Bentley. Although the admission of defendant’s statement improperly revealed
witness opinions concerning defendant’s guilt or innocence, People v Bragdon, 142 Mich App
4
Miranda v Arizona, 384 US 436; 86 S Ct 1602; L Ed 2d 694 (1966).
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197, 199-200; 369 NW2d 208 (1985), defendant fails to demonstrate that the admission of the
witness opinions prejudiced him so as to deny him a fair trial, People v Pickens, 446 Mich 298,
303; 521 NW2d 797 (1994).
First, we find the isolated reference to the witness opinions that defendant killed Bentley,
coupled with defendant’s denial of guilt, is not “tantamount to the transformation of this
proceeding from a jury trial to a guilty plea situation” warranting reversal. Bragdon, supra at
199. Moreover, a judge, not a jury, tried defendant. “A judge, unlike a juror, possesses an
understanding of the law which allows him to ignore such errors and to decide a case based
solely on the evidence properly admitted at trial.” People v Jones, 168 Mich App 191, 194; 423
NW2d 614 (1988).
In addition, our review of the trial court’s factual findings indicates that the trial court did
not consider defendant’s statement, but instead convicted defendant based on the strong DNA
evidence and witness testimony linking defendant to the scene. As such, defendant failed to
demonstrate a reasonable probability that, but for defense counsel’s failure to move to suppress
the portion of defendant’s statement revealing the improper opinion evidence, the result of the
trial would have differed. Toma, supra at 423.
Defendant also contends that the statement is inadmissible hearsay. Hearsay is defined as
“a statement, other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” MRE 801(c). In this case, the statement
“Why is everyone saying you did?” was not offered for the purpose of showing the guilt of
defendant. Instead, viewing the statement in context, it is evident that the statement was offered
to explain why defendant denied killing Bentley. Accordingly, the statement did not constitute
inadmissible hearsay.
III. Sufficiency of the Evidence
Defendant next asserts that the evidence did not support a conviction of second-degree
murder. Instead, defendant contends that the evidence supported a finding of provocation and a
conviction of voluntary manslaughter. We disagree. When reviewing a challenge to the
sufficiency of the evidence, we must determine whether the evidence, when viewed in the light
most favorable to the prosecution, was sufficient to allow a rational trier of fact to find that the
prosecution proved the essential elements of the offense beyond a reasonable doubt. People v
Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998). “Circumstantial evidence and
reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.” In re
Abraham, 234 Mich App 640, 656-657; 599 NW2d 736 (1999), citing People v Jolly, 442 Mich
458, 466; 502 NW2d 177 (1993).
“The offense of second-degree murder consists of the following elements: ‘(1) a death,
(2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse.’”
People v Aldrich, 246 Mich App 101, 123; 631 NW2d 67 (2001), quoting People v Mayhew, 236
Mich App 112, 124-125; 600 NW2d 370 (1999), quoting People v Goecke, 457 Mich 442, 463464; 579 NW2d 868 (1998). “Voluntary manslaughter is an intentional killing committed under
the influence of passion or hot blood produced by adequate provocation and before a reasonable
time has passed for the blood to cool.” People v Hess, 214 Mich App 33, 38; 543 NW2d 332
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(1995). “Murder and voluntary manslaughter are both homicides and share the element of being
intentional killings. However, the element of provocation that characterizes the offense of
voluntary manslaughter separates it from murder.” Id.
Viewed in the light most favorable to the prosecution, the evidence supports defendant’s
conviction of second-degree murder. First, the testimony at trial linking defendant to the
homicide scene is circumstantial evidence that defendant caused Bentley’s death. Moreover,
there was compelling physical DNA evidence linking defendant to the crime. Second, we find
the evidence sufficient to support a finding that defendant acted with the requisite malice.
Malice may be inferred from the facts and circumstances of the killing. People v Wofford, 196
Mich App 275, 278; 492 NW2d 747 (1992). “The ‘malice’ required to prove murder requires
either: 1) an intent to kill, 2) an intent to cause great bodily harm, or 3) wanton and wilful
disregard that the natural tendency of defendant’s behavior is to cause death or great bodily
harm.” People v Nowack, 462 Mich 392, 408; 614 NW2d 78 (2000). Firing a gun at a person is
a force that is likely to cause death or great bodily harm. Id. Furthermore, based on the fact that
Bentley suffered multiple gunshot wounds and the location of those shots, in her face and her
chest area, a rational trier of fact could reasonably infer that defendant also possessed the intent
to kill. Finally, no evidence was presented to establish an excuse or justification for the killing.
Accordingly, we find that there was sufficient evidence, when viewed in the light most favorable
to the prosecution, to establish the elements of second-degree murder beyond a reasonable doubt.
Furthermore, we find that the evidence does not support mitigating murder to voluntary
manslaughter. We find nothing in the witnesses’ testimony, or any reasonable inferences from it,
indicating that Bentley provoked defendant such that he killed in the heat of passion. None of
the witnesses had any knowledge concerning the events that transpired inside Bentley’s house
when she was killed. Although there were signs of a struggle or physical confrontation between
defendant and Bentley, it is pure speculation to conclude that the shooting was the result of
adequate provocation.
IV. Illegality of Arrest
Defendant finally claims that his statement should have been suppressed because his
arrest was not supported by probable cause. However, defendant failed to preserve this issue for
our review. To avoid forfeiture of an unpreserved issue on appeal, a defendant must demonstrate
plain error affecting his substantial rights. People v Carines, 460 Mich 750, 761-764; 597 NW2d
130 (1999).
Because defendant failed to move for a suppression hearing, the record does not indicate
what evidence supported the magistrate’s probable cause determination. Thus, our review is
limited to the trial record. It is evident from the trial record that the warrant was issued before
defendant gave his statement to the police. It is also apparent from the record that the DNA
evidence connecting defendant to the scene of the crime did not exist at the time of defendant’s
arrest. Therefore, we consider this issue without taking into account the DNA evidence or
defendant’s statement.
For an arrest to pass constitutional muster, it must be supported by probable cause that a
crime has been committed at the moment that the officer makes the arrest. People v Lyon, 227
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Mich App 599, 611; 577 NW2d 124 (1998). “Probable cause requires only a probability or
substantial chance of criminal activity, not an actual showing of criminal activity.” Lyon, supra
at 611, citing Illinois v Gates, 462 US 213, 243, n 13; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
“Probable cause exists where the facts and circumstances within the police officer’s knowledge
are sufficient to lead the police officer to believe that the suspect has committed or is in the
process of committing a felony.” People v Heard, 178 Mich App 692, 701; 444 NW2d 542
(1989). However, “[w]hile guilt need not be established beyond a reasonable doubt, there must
be evidence of each element of the crime charged, or evidence from which the elements may be
inferred.” Abraham, supra at 656.
The evidence demonstrates that there was probable cause to support a charge of firstdegree murder. As we addressed supra, Smith’s testimony established that defendant caused the
killing. Based on the fact that Bentley suffered from multiple gunshot wounds in the face and her
chest area, one could reasonably infer that defendant intended to kill Bentley. Furthermore, the
evidence regarding the timing and number of gunshot wounds demonstrated probable cause that
the killing was premeditated and deliberate.5 See People v Coy, 243 Mich App 283, 315-316;
620 NW2d 888 (2000). Smith testified that she only heard two sounds at the house, while
Bentley had three gunshot wounds. Defendant had sufficient time to “take a second look” before
shooting Bentley again. In sum, the facts and circumstances, in this case, were sufficient to lead
the police to believe that defendant committed murder. Heard, supra at 701. Accordingly, we
find there was probable cause to support defendant’s arrest. As such, defendant failed to
establish plain error affecting his substantial rights. Carines, supra at 761-764.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
5
“Premeditation and deliberation require sufficient time to allow the defendant to take a second
look.” Abraham, supra at 656, quoting People v Schollaert, 194 Mich App 158, 170; 486 NW2d
312 (1992).
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