PEOPLE OF MI V CRAIG CURTIS COKER JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 30, 2004
Plaintiff-Appellee,
v
No. 238738
St. Joseph Circuit Court
LC No. 01-010490-FC
CRAIG CURTIS COKER, JR.,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 238739
St. Joseph Circuit Court
LC No. 01-010491-FC
MATTHEW BALLOW HOBBS,
Defendant-Appellant.
Before: Jansen, PJ, and Markey and Gage, JJ.
PER CURIAM.
In these consolidated cases, defendants appeal by right their convictions and sentences
for first-degree murder and felony-firearm following a joint jury trial. We affirm.
Defendant Coker was found guilty as charged of premeditated murder, MCL
750.316(1)(a), felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and
possession of a firearm in the commission of another felony, MCL 750.227b. Defendant Hobbs,
prosecuted on the theory of aiding and abetting Coker, was found guilty of felony murder, the
lesser-included offense of second-degree murder, MCL 750.317, armed robbery, and felonyfirearm. As to both defendants, the trial court initially imposed sentence for all convictions but
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immediately vacated the sentences and entered amended judgments of sentence.1 The trial court
sentenced defendant Coker to life imprisonment for one count of first-degree murder predicated
on two theories and a consecutive two-year prison term for felony-firearm. The trial court
sentenced defendant Hobbs to life imprisonment for one count of first-degree felony murder and
a consecutive two-year prison term for felony-firearm. On appeal, each defendant argues the
trial court abused its discretion admitting certain evidence. Defendant Hobbs also challenges the
trial court’s denial of his motion to sever and the sufficiency of the evidence supporting his
convictions. We find none of defendants’ issues merit reversal, and therefore, we affirm.
I. Issues raised in both Docket No. 238738 and Docket No. 238739
First, each defendant argues the trial court abused its discretion by admitting photographs
of the victim’s body. We disagree.
Defendants preserved this issue by objecting to the admission of the photographs below
on the same ground asserted on appeal. MRE 103(a)(1); People v Aldrich, 246 Mich App 101,
113; 631 NW2d 67 (2001). We review for a clear abuse of discretion the trial court’s decision to
admit or exclude evidence. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). An
abuse of discretion exists only if an unprejudiced person, considering the facts on which the trial
court acted, would say that there is no justification or excuse for the trial court’s decision.
People v Rice (On Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999).
This Court stated the principles applicable to our review in Aldrich, supra at 114:
Generally, all relevant evidence is admissible at trial. Evidence is relevant
if it has any tendency to make the existence of a fact that is of consequence to the
action more probable or less probable than it would be without the evidence.
Under this broad definition, evidence is admissible if it is helpful in throwing
light on any material point. However, even if relevant, evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
1
The prohibition against multiple punishments for the same offense found in the Double
Jeopardy Clauses of the federal and Michigan constitutions preclude multiple murder
convictions for the death of single victim. US Const, Ams V and XIV; Const 1963, art 1, § 15.
See People v Clark, 243 Mich App 424, 429; 622 NW2d 344 (2000), and People v Bigelow, 229
Mich App 218, 220; 581 NW2d 744 (1998). When a murder conviction rests on multiple
theories the judgment of sentence should reflect a single conviction and sentence for first-degree
murder, supported by the two separate theories. Id. at 220-221.
Also, double jeopardy principles require that a felony murder conviction and its predicate
felony be merged into one conviction. People v Harding, 443 Mich 693, 714 (Brickley, J.), 735
(Cavanagh, C.J.); 506 NW2d 482 (1993); People v Wilder, 411 Mich 328, 347; 308 NW2d 112
(1981). Thus, when a defendant is convicted of both felony murder and the predicate felony, the
remedy is to vacate the conviction of the predicate felony. People v Minor, 213 Mich App 682,
690; 541 NW2d 576 (1995).
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prejudice, confusion of the issues, misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence. [Citations omitted.]
Defendants argue that the photograph exhibits five, six, and seven, tended to inflame the
jury and should have been excluded because unfair prejudice outweighed the evidence’s
probative value. Evidence is unfairly prejudicial when it is marginally probative and it is likely a
jury would give it more weight then it merits. People v Crawford, 458 Mich 376, 398, 582
NW2d 785 (1998). With respect to exhibit five, which showed the position of the victim’s body,
the prosecutor argued that it was relevant because it corroborated witness Hurley’s testimony
that the victim fell on the edge of the porch. The prosecutor further argued that exhibits six and
seven, which depicted the victim’s wounds, were relevant in that they helped to link defendants
to the crime because other evidence showed that defendant Coker had threatened to shoot the
victim in the back of the head. Although the victim was shot in the back, the photographs
showed how the victim was shot “pretty much, but not quite in the back of the head.” Without
the photographs, it would have been difficult for the pathologist to explain this to the jury.
The trial court admitted exhibit five because it was “not particularly inflammatory or
gruesome” and agreed with the prosecution’s theory as to why the picture was probative.
Photographs may properly be used to corroborate a witness’ testimony and gruesomeness alone
will not cause their exclusion. People v Mills, 450 Mich 61, 76; 537 NW2d 909, remanded on
other grounds 450 Mich 1212; 539 NW2d 504 (1995). Similarly, the trial court found exhibit
seven, depicting the small entrance wounds, was not gruesome. As already noted, this
photograph was relevant to the prosecutor’s theory of the case and assisted the jury in assessing
the pathologist’s testimony. The trial court only found exhibit six to be gruesome because it
depicted exit wounds. But the trial court found exhibit six was also relevant to help the jury
understand the testimony of the pathologist. Further, the trial court noted the public had become
less sensitive to graphic material over the past forty years and the jury would be unlikely to use it
for an improper purpose. See, e.g., People v Turner, 17 Mich App 123, 132; 169 NW2d 330
(1969) observing that “today’s jurors, inured as they are to the carnage of war, television and
motion pictures, are capable of rationally viewing, when necessary, a photograph showing the
scene of a crime or the body of a victim in the condition or the place in which found.”
Accordingly, the trial court ruled that the probative value of the evidence was not outweighed by
the danger of unfair prejudice.
We conclude the trial court did not abuse its discretion by declining to exclude the
photographs because their probative value was not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
needless presentation of cumulative evidence. MRE 403; Aldrich, supra at 115. Defendants’
only claim prejudice based on the gruesome nature of the photographs. But the gruesome nature
of a photograph is insufficient by itself to exclude relevant evidence. Mills, supra at 76; People
v Eddington, 387 Mich 551, 562-563; 198 NW2d 297 (1972). “Relevant evidence is inherently
prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which
permits exclusion of relevant matter under Rule 403.” Mills, supra at 75. Because the trial court
is in the best position to contemporaneously assess whether the danger of unfair prejudice
substantially outweighs the relevancy of evidence, the record here simply does not establish that
the trial court abused its discretion finding the evidence relevant and not excluding the evidence
under the balancing test of MRE 403. People v Bahoda, 448 Mich 261, 291; 531 NW2d 659
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(1995). Moreover, even if admitting the photographs at issue was a close question, no abuse is
demonstrated. “The trial court's decision on close evidentiary questions cannot ‘by definition’
be an abuse of discretion.” Layher, supra at 761.
II. Issues raised only in Docket No. 238738
Defendant Coker argues that the trial court abused its discretion by admitting irrelevant
evidence that he had threatened the victim’s boyfriend before the murder. We disagree.
Defendant preserved this issue by objecting below to the testimony of witnesses Knight,
Swift, and Gillies. MRE 103(a)(1). But defendant failed to object on these grounds to similar
testimony given by witnesses Rowe, Janes, and Hurley. Thus, as to the testimony of the first
group, if error occurred, this Court will not reverse unless the preserved nonconstitutional
evidentiary error involves a substantial right, and after an examination of the entire cause, it
affirmatively appears that it is more probable than not that the error was outcome determinative.
People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999). We review admission of the
testimony of the later group for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999). Reversal is warranted only when
plain error results in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity or public reputation of judicial proceedings, independent of defendant’s guilt
or innocence. Id.; People v Coy, 243 Mich App 283, 312-313; 620 NW2d 888 (2000).
Evidence that is not relevant is not admissible. MRE 402. To be relevant, evidence must
have some tendency to prove a fact in issue. MRE 401; Mills, supra at 66; Aldrich, supra at 114.
Under this broad definition, evidence is admissible if it is helpful in throwing light on any
material point. Id. Our Supreme Court has observed that,
. . . all elements of a criminal offense are “in issue” when a defendant enters a
plea of not guilty. The prosecution must carry the burden of proving every
element beyond a reasonable doubt, regardless of whether the defendant
specifically disputes or offers to stipulate any of the elements. The elements of
the offense are always at issue. Thus, the prosecution may offer all relevant
evidence, subject to MRE 403, on every element. The claim that evidence that
goes to an undisputed point is inadmissible has also been rejected in criminal
cases. [Mills, supra at 69-71 (emphasis in the original, footnotes and citations
omitted).]
Defendant advances three arguments as to why the trial court should have excluded
evidence that he threatened the victim’s boyfriend. First, the threats were not probative of
whether he was present at the time of the offense. Because he presented an alibi defense,
defendant argues his intent was not at issue, and even if it had been, the threats had no bearing
on his intent at the time of the offense.
Defendant’s first argument fails under the “any tendency” test. The shooting occurred at
the boyfriend’s residence, and the evidence tended to establish a reason for defendant to be at the
residence on the night of the shooting.
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Even if it were not relevant to defendant’s presence at the crime scene, the testimony
tends to prove the material issue of his intent. To establish first-degree premeditated murder,
MCL 750.316(1)(a), “the prosecution must prove that the defendant intentionally killed the
victim and the act of killing was deliberate and premeditated.” People v Haywood, 209 Mich
App 217, 229; 530 NW2d 497 (1995). Because intent constitutes an element of the crime, any
evidence that tends to prove intent is relevant. MRE 401; Aldrich, supra at 114.
Evidence of defendant’s threatening the victim’s boyfriend has some tendency to prove
that defendant intended to kill the victim. Both Gillies and Rowe testified that defendant made
the threats because the victim’s boyfriend had caused Coker to be arrested, requiring him to pay
$700 to get out of jail. Porter testified that Coker was angry with the victim because of the same
incident.2 Hurley also testified that before Coker shot the victim, she admitted that it was she
who called the police and caused his arrest. Hurley further testified that Coker said killing the
victim would hurt the victim’s boyfriend more than actually killing him. “Evidence of the
defendant’s motive to commit the charged crime lends itself to three theories of logical
relevance: (1) identity; (2) actus reus, and (3) mens rea.” People v Sabin (After Remand), 463
Mich 43, 68; 614 NW2d 888 (2000), citing Imwinkelried, Uncharged Misconduct Evidence, §§
3:15, 4:19, and 5:35. Thus, motive is always relevant in a murder case. Rice, supra at 440.
Defendant failed to preserve his objections to the admission of the testimony given by
Rowe, Janes, and Hurley. Because the challenged evidence was relevant, the trial court did not
commit plain error. Defendant has forfeited this issue. Carines, supra at 763, 768. But even if
defendant had properly preserved an objection to this testimony, as he did with that of Knight
and Gillies, the result would not change. Because the threats against the victim’s boyfriend are
probative of intent, they are relevant and the trial court did not abuse its discretion in admitting
testimony regarding them.
Defendant also argues that the trial court abused its discretion by permitting Swift to
testify that she had originally lied to investigators at the behest of Sue Lockhart, defendant’s
girlfriend. Defendant argues that the record contains no evidence that he asked Lockhart to
convince Swift to lie. Because of this, defendant argues, Lockhart’s actions were not relevant
and should have been excluded under MRE 402.
We conclude the trial court did not abuse its discretion in admitting this evidence. The
credibility of a witness is always relevant. Mills, supra at 72. “If a witness is offering relevant
testimony, whether that witness is truthfully and accurately testifying is itself relevant because it
affects the probability of a consequential fact.” Id.
2
The prosecutor presented testimony that several months before the shooting the victim’s
boyfriend had telephoned Coker and accused him of breaking into his home. Shortly thereafter,
Coker, Hobbs and a third person arrived at the trailer of the victim and her boyfriend. The three
pounded on the doors and threatened to beat the victim’s boyfriend but left after the victim
telephoned the police. Later, the police arrested Coker for drunk driving and Hobbs for
possession of marijuana. Sue Lockhart, Coker’s girlfriend, received a ticket for possession of an
open alcohol container in a vehicle. The bond set for these offenses totaled $700.
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Finally, defendant argues the trial court erred by permitting Michelle Janes to testify that
defendant told Janes and her boyfriend, Chris Edgington, that they “shouldn’t be hanging out [at
the home of the victim and her boyfriend] because [defendant] wouldn’t want [Janes or
Edgington] to get hit with a stray bullet.” Further, defendant argues the trial court abused its
discretion by permitting Janes to testify to a telephone conversation Edgington had with Coker
on the night of the shooting. Edgington was in the hospital at the time of the trial and unable to
testify.3 Janes testified that Edgington told her Coker said, “I told you I’d be getting a hold of
you. I’m going to stop over. Stay home.”
Defendant argues the admission of this testimony denied him a fair trial because it was
inadmissible hearsay. He argues no categorical exception to the rule against hearsay applied,
and the hearsay did not bear sufficient indicia of reliability to be admitted under a “catch-all”
exception.4 We disagree. The admission or exclusion of evidence by the trial court is reviewed
for a clear abuse of discretion. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
Whether a rule of evidence, statute or constitutional provision precludes admission of evidence
presents a question of law reviewed de novo, and the trial court abuses its discretion when it
admits evidence that is inadmissible as a matter of law. Id.
We address first Janes’ testimony that Coker warned her and Edgington against “hanging
out” at the home of the victim and her boyfriend. The testimony indicated this statement was
made sometime between the night Coker, Hobbs and Lockhart were stopped by the police and
the night of the shooting. The statement was not part of the telephone conversation between
Edgington and Coker on the night of the murder. Further, the record reflects that witness Janes
was present when defendant purportedly made the statement.
At trial, defense counsel objected to Janes’ testimony on the grounds that the statement
constituted hearsay. The court responded that Coker had made the statement. Although the
record is not clear whether the defense objection was withdrawn, it is clear the evidence was not
admitted under the residual exception to the hearsay rule. We conclude the trial court did not
abuse its discretion in admitting Janes’ testimony concerning Coker’s statement. Under MRE
801(d)(2)(A) a statement is not hearsay if it is offered against a party and it is the party’s own
statement.
Next, we consider Janes’ testimony as to what Edgington told her Coker said. MRE
801(c) defines hearsay as a declarant’s out of court statement offered to prove the truth of the
3
Edgington, a friend of defendant Coker, attempted to commit suicide the day before trial began
in an apparent attempt to keep from having to testify.
4
Michigan’s “residual” or “catch-all” exceptions to the hearsay rule, MRE 803(23) and MRE
804(b)(6), were adopted January 19, 1996, effective April 1, 1996. 450 Mich cixviii. MRE
804(b)(6) was renumbered 804(b)(7) when the current 804(b)(6) was added effective September
1, 2001 (MRE 804, note to 2001 amendment). The substantive provision of the two catch-all
exceptions are identical except that the availability of the declarant is immaterial under MRE
803(24) while the declarant must be unavailable under MRE 804(b)(7). See People v Welch,
226 Mich App 461, 464 n 2; 574 NW2d 682 (1997).
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matter asserted. Hearsay is inadmissible as substantive evidence unless one of the exceptions in
the rules of evidence applies. MRE 802; People v Poole, 444 Mich 151, 159; 506 NW2d 505
(1993). Here, the trial court applied MRE 803(24) to admit the challenged statements, relying on
People v Lee, 243 Mich App 163, 178; 622 NW2d 71 (2000).
MRE 803(24) provides:
A statement not specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a material fact, (B) the
statement is more probative on the point for which it is offered than any other
evidence that the proponent can procure through reasonable efforts, and (C) the
general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of the statement makes known
to the adverse party, sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent's
intention to offer the statement and the particulars of it, including the name and
address of the declarant.
By its plain terms, the residual exception may only apply where one of the categorical
hearsay exceptions does not. Katt, supra at 289. Further, because the residual exception is not
firmly rooted, hearsay admitted under this rule must not only comply with the terms of rule but
also satisfy the Confrontation Clause. See Idaho v Wright, 497 US 805, 814-815; 110 S Ct 3139;
111 L Ed 2d 638 (1990). Thus, hearsay to be admitted under MRE 803(24) must “possess
equivalent circumstantial guarantees of trustworthiness” that traditional exceptions enjoy, and
also satisfy the Confrontation Clause by bearing adequate “indicia of reliability,” which must be
determined by reviewing the totality of the circumstances surrounding the making of the
statements at issue.5 Poole, supra at 164; Lee, supra at 178. Under this test, the factors to be
considered may include:
5
We recognize that the United States Supreme Court recently limited the “indicia of reliability”
test adopted in Ohio v Roberts, 448 US 56, 66; 100 S Ct 2531; 65 L Ed 2d 597 (1980), and
applied in Wright, Poole, and Lee to determine whether an accused’s Confrontation Clause rights
were violated by the admission of hearsay. Crawford v Washington, 541 US ___; ___ S Ct ___;
___ L Ed 2d ___ (2004). Specifically, the Crawford Court held that “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id., slip op at 33. But, “[w]here
nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the
States flexibility in their development of hearsay law, as does Roberts, and as would an approach
that exempted such statements from Confrontation Clause scrutiny altogether.” Id. Although
Crawford does not provide a comprehensive definition of “testimonial,” we are convinced that
the hearsay to which Coker objects is nontestimonial, and therefore, we apply the Roberts
reliability rule.
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(1) the spontaneity of the statements; (2) the consistency of the statements; (3)
lack of motive to fabricate or lack of bias; (4) the reason the declarant cannot
testify; (5) the voluntariness of the statements, i.e., whether they were made in
response to leading questions or made under undue influence; (6) personal
knowledge of the declarant about the matter on which he spoke; (7) to whom the
statements were made, e.g., a police officer who was likely to investigate further;
and (8) the time frame within which the statements were made. The court may not
consider whether evidence produced at trial corroborates the statement. [Lee,
supra at 178 (citations omitted).]
Our Supreme Court recently set forth the criteria for admissibility under MRE 803(24):
[E]vidence offered under MRE 803(24) must satisfy four elements to be
admissible: (1) it must have circumstantial guarantees of trustworthiness equal to
the categorical exceptions, (2) it must tend to establish a material fact, (3) it must
be the most probative evidence on that fact that the offering party could produce
through reasonable efforts, and (4) its admission must serve the interests of
justice. Also, the offering party must give advance notice of intent to introduce
the evidence. [Katt, supra at 279, 290.]
We have already rejected defendant’s argument that because he presented an alibi
defense, his intent was not a material issue in the case. Intent is always a material issue where
the charge is willful, deliberate, premeditated murder. Although there was other evidence of
defendant’s intent on the night of the shooting, because of the declarant’s hospitalization, the
hearsay was best evidence the prosecutor could produce that defendant had warned Edgington to
stay away from the victim on the night of the shooting. This was a material fact from which
premeditation and deliberation could be inferred. Because of this, an unprejudiced person could
not find that there was no justification for the trial court’s finding that the hearsay statement was
admissible under MRE 803(23). Katt, supra at 279, 290; Lee, supra at 178-179.
In addition to stating that it did not meet the standards set forth in the residual exception,
defendant contends that the statement lacked sufficient indicia of reliability because it did not
satisfy requirements of any of the other hearsay exceptions. We reject this argument as well
because it would defeat the purpose of having a residual exception. Indeed, the rule specifically
requires that hearsay admitted under the residual exception “not [be] specifically covered by any
of the [other hearsay] exceptions.” See Katt, supra at 289. We conclude the trial court properly
determined under the totality of the circumstances that the hearsay statement possessed sufficient
circumstantial guarantees of trustworthiness to be reliable and therefore admitted under the
residual exception. Katt, supra at 290-292; Lee, supra at 178. The trial court found that the
declarant consistently made the same statement. The statement was voluntarily made and
concerned a phone call about which he had personal knowledge. Edgington, the declarant, had
no motive to lie because he and defendant were friends. Edgington also made the statement
contemporaneously and spontaneously to a loved one. These findings provide sufficient
justification for the court’s determination that the statement was reliable. We find that the trial
court did not abuse its discretion.
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Defendant’s final argument is that the prosecution failed to provide proper notice that it
intended to offer evidence under the residual exception. Although defendant did not know in
advance that that the prosecutor would offer Edgington’s statement under the residual hearsay
exception, defendant had the advance notice contemplated by the rule of the substance of
Edgington’s statement. The prosecutor had intended to call Edgington as a witness and named
him on the prosecution’s first amended witness list. The prosecutor only presented Janes’
hearsay testimony as an alternative because Edgington apparent distraught over the prospect of
testifying, attempted suicide the day before. Because defendant had notice of the evidence
equivalent to that required by MRE 803(24) and had a fair opportunity to meet it, the trial court
did not abuse its discretion by admitting Edgington’s statement.
Accordingly, the trial court did not abuse its discretion by admitting the evidence
defendant Coker challenges. We therefore affirm defendant Coker’s convictions and sentences.
III. Issues raised only in Docket No. 238739
Defendant Hobbs asserts two reasons why the prosecutor failed to present sufficient
evidence to sustain his felony murder conviction. First, he argues that the prosecutor presented
insufficient evidence of malice as required by People v Aaron, 409 Mich 672, 733; 299 NW2d
304 (1980). Second, he argues the murder occurred after the robbery had been completed. We
disagree.
We review de novo defendant’s claim that evidence at trial was insufficient to support his
conviction as a question of law. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376
(2001). Viewing the evidence in a light most favorable to the prosecution, we must determine
whether a rational trier of fact could have found all of the elements of the offense were proved
beyond a reasonable doubt. Jackson v Virginia, 443 US 307, 319; 99 S Ct 2781; 61 L Ed 2d 560
(1979); People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), mod 441 Mich 1201 (1992).
Circumstantial evidence and their reasonable inferences may constitute sufficient evidence to
find all the elements of an offense beyond a reasonable doubt. People v Hardiman, 466 Mich
417, 428; 646 NW2d 158 (2002); Carines, supra at 757. Furthermore, we must review the
sufficiency of the evidence with deference by making all reasonable inferences and resolving
credibility conflicts in favor of the jury verdict. People v Nowack, 462 Mich 392, 400; 614
NW2d 78 (2000); Wolfe, supra at 514-515.
The elements of felony murder are: (1) the killing of a human being, (2) with malice,
meaning, with the intent to kill, to do great bodily harm, or to create a very high risk of death or
great bodily harm with knowledge that death or great bodily harm was the probable result, (3)
while committing, attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in MCL 750.316(1)(b), including the charged underlying offense here of
robbery. Carines, supra at 759.
The prosecutor theorized defendant was culpable as an aider and abettor. In order to
prove felony murder on an aiding and abetting theory, the prosecutor must show that the
accused:
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(1) performed acts or gave encouragement that assisted the commission of the
killing of a human being, (2) with the intent to kill, to do great bodily harm, or to
create a high risk of death or great bodily harm with knowledge that death or
great bodily harm was the probable result, (3) while committing, attempting to
commit, or assisting in the commission of the predicate felony. [People v Riley
(After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003).]
To establish the element of malice required by Aaron, the prosecutor must show that the
accused “either intended to kill, intended to cause great bodily harm, or wantonly and willfully
disregarded the likelihood that the natural tendency of his behavior was to cause death or great
bodily harm.” Riley, supra at 140-141. The malice necessary for a felony murder conviction
cannot “be inferred merely from the intent to commit the underlying felony,” but the facts and
circumstances involved in the perpetration of a felony may provide sufficient evidence from
which the jury may infer the necessary element of malice. People v Kelly, 423 Mich 261, 273;
378 NW2d 365 (1985), citing Aaron, supra at 728. Such circumstantial evidence may include a
close association between the defendant and the principal, the defendant’s participation in the
planning or execution of the crime, the use of a deadly weapon, and evidence of flight after the
crime. Carines, supra 758-759. Thus, “if an aider and abettor participates in a crime with
knowledge of the principal’s intent to kill or to cause great bodily harm, the aider and abettor is
acting with ‘wanton and willful disregard’ sufficient to support a finding of malice.” Riley,
supra at 141.
Viewing the evidence in a light most favorable to the prosecutor, we conclude that a
rational jury could find beyond a reasonable doubt that defendant acted with the malice
necessary to sustain his felony murder conviction. Witness Hurley testified he accompanied
Hobbs and Coker to the victim’s residence on the day of the murder. Hurley testified that both
Coker and Hobbs entered the residence, with Coker carrying a rifle. Minutes later Coker
returned without the rifle, and Hurley heard Hobbs make statements from which the jury could
infer Hobbs was then holding the victim at gunpoint. In addition to malice that could be inferred
from his use of a deadly weapon, the evidence supports an inference that Hobbs knew Coker
intended to kill or cause great bodily harm. Hurley testified that Hobbs was present when Coker
said someone might be shot. Hurley also testified that on the way to the victim’s residence,
Hobbs steered the car while Coker test-fired the weapon. A rational jury could have found that
Hobbs acted with malice because he knew Coker’s intent. Further, the prosecutor presented
evidence that Hobbs fled the state with Coker after the crime and that Hobbs told Coker’s father
that he (Hobbs) shot the victim. Viewed in the light most favorable to the prosecution, the
evidence was sufficient for a rational jury to have found Hobbs guilty of felony murder beyond a
reasonable doubt.
Next, defendant Hobbs argues the evidence was insufficient to convict him of felony
murder because it was not “committed in the perpetration of, or attempt to perpetrate” a robbery.
MCL 750.316(1)(b). Defendant contends that codefendant Coker killed the victim after the
robbery; therefore, the robbery cannot support a felony murder conviction. We disagree.
As noted supra, the prosecutor must prove that the murder occurred while the defendant
was committing, attempting to commit, or assisting in the commission of a predicate felony to
establish felony murder. Riley, supra at 140. When the evidence here is viewed in a light
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favorable to the prosecution, it established that Coker had carried stolen property from the
victim’s residence while Hobbs, armed with a rifle stayed inside with the victim. The victim was
shot after Coker again entered the residence and told Hurley to leave with more stolen property.
Coker shot the victim as Hobbs and Hurley, carrying stolen property, walked from the residence
to their waiting automobile. We conclude this evidence was sufficient for a rational trier of fact
to find beyond a reasonable doubt that the murder occurred during the commission of a robbery.
The elements of robbery are: (1) a felonious taking of property from the person of
another or in his presence, (2) by force and violence or by assault or by putting in fear, and (3)
being armed, MCL 750.529, or being unarmed, MCL 750.530. See People v Rodgers, 248 Mich
App 702, 707; 645 NW2d 294 (2001) (armed robbery), and People v Himmelein, 177 Mich App
365, 378; 442 NW2d 667 (1989) (unarmed robbery). Defendant apparently bases his argument
on the requirement that to establish robbery, the use or threat of force must contemporaneous
with the taking of property. People v Randolph, 466 Mich 532, 546; 648 NW2d 164 (2002).
Based on a review of the common law of robbery and Michigan’s unarmed robbery statute,6 the
Randolph Court held that a theft of property accomplished without using force or violence
cannot be converted to a robbery by the subsequent use of force or violence to escape or retain
possession of the stolen property. Randolph, supra at 536, 539. Thus, the Court overruled the
so-called “transactional approach”7 and held that “the force, violence, assault or putting in fear
underlying the robbery must occur before or contemporaneously with the felonious taking.” Id.
at 551. But the Court made clear that “contemporaneous” included use of force or violence
immediately before or immediately after the taking of the property. Id. at 538 n 6.
Randolph has no application to the case at bar for two reasons. First, viewing the
evidence in the light most favorable to the prosecution, there is no question that the taking of
property here was accomplished through the use of force or violence, which established that a
robbery occurred. The only question is whether the robbery was completed when the killing
occurred so as to invoke felony murder. The evidence supports a rational inference that the
victim was alive and being held at gunpoint at the same time Hobbs and Hurley were carrying
property away from her residence and when she was killed. In sum, a rational jury could find
beyond a reasonable doubt that the victim was killed during the robbery because the victim was
continuously assaulted between the time defendants entered her home and began taking property
and when the victim was killed.
6
It is clear the Court’s analysis applies equally to both armed robbery and unarmed robbery.
Randolph, supra at 536, citing People v LeFlore, 96 Mich App 557, 562; 293 NW2d 628 (1980).
The Randolph Court overruled the so-called “transactional approach” to robbery, first developed
in People v Sanders, 28 Mich App 274, 184 NW2d 269 (1970). Randolph, supra at 546. Under
the “transactional approach,” which this Court explicitly adopted in LeFlore, robbery is a
continuous offense that is not complete until the perpetrator reaches a place of temporary safety.
Randolph, supra at 536, 540-541.
7
See n 5, supra.
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Second, the Randolph Court distinguished the situation it addressed from the question of
whether a homicide in connection with a robbery was felony murder. Id. at 549-550, citing
People v Podolski, 332 Mich 508, 515-516; 52 NW2d 201 (1952). In Podolski, the Court
reviewed whether felony murder applied where a police officer was killed by friendly fire in a
gun battle with armed robbers. The Court considered the question as one of whether the
homicide was contemplated within the scope of the initial criminal enterprise, adopting the
approach of the Pennsylvania supreme court. Id. at 515-516. Thus, “‘when a felon’s attempt to
commit robbery or burglary sets in motion a chain of events which were or should have been
within his contemplation when the motion was initiated, he should be held responsible for any
death which by direct and almost inevitable sequence results from the initial criminal act.’” Id.,
quoting Commonwealth v Moyer, 357 Pa 181, 190-191; 53 A2d 736 (1947).
This Court in People v Thew, 201 Mich App 78; 506 NW2d 547 (1993) upheld the felony
murder conviction of the defendant who killed an eleven-year-old rape victim by running over
her with his car while leaving the scene of the crime. The Thew Court quoted People v Smith, 55
Mich App 184, 189; 222 NW2d 172 (1974), which relied on Podolski, as follows:
[I]f a murder is committed while attempting to escape from or prevent detection
of the felony, it is felony murder, but only if it is committed as a part of a
continuous transaction with, or is otherwise “immediately connected” with, the
underlying felony.. [Thew, supra at 85-86, quoting Smith, supra at 189.]
The Thew Court upheld the defendant’s plea of guilty to felony murder because
“inculpatory inferences can be drawn that he killed the victim to prevent detection of the act of
sexual intercourse with her, and that the killing was ‘immediately connected’ with the act of
sexual intercourse.” Id. at 88. Thus, a murder committed while attempting to escape from or
prevent detection of the predicate felony, or is otherwise “immediately connected” with the
underlying felony, is felony murder.
Applying reasonable inferences and resolving credibility conflicts in favor of the jury
verdict as we must, Nowack, supra at 400, we find the murder in this case was within the scope
of the criminal enterprise embarked on by Coker and Hobbs and was within Hobbs’ knowledge,
as already discussed, supra. Moreover, testimony at trial indicated that Hobbs told Coker’s
father after the murder that the robbery “went bad,” and “they didn’t want nobody witnessing
them trying to strong arm for money.” It is reasonable to infer from this testimony that the
victim was murdered to prevent detection of the robbery and was “immediately connected” with
it. Thew, supra. Thus, viewed in the light most favorable to the prosecution, sufficient evidence
existed for the jury to have found Hobbs guilty of felony murder beyond a reasonable doubt.
Last, defendant Hobbs argues the trial court abused its discretion denying his pretrial
motion for severance. Again, we disagree. We review a trial court’s decision to grant or deny a
motion to sever for an abuse of discretion. People v Hana, 447 Mich 325, 346; 524 NW2d 682
(1994), amended 447 Mich 1203 (1994).
MCR 6.121(C) provides: “On a defendant’s motion, the court must sever the trial of
defendants on related offenses on a showing that severance is necessary to avoid prejudice to
substantial rights of the defendant.” Offenses are “related” if they are “based on the (1) the same
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conduct, or (2) a series of connected acts or acts constituting part of a single scheme or plan.”
MCR 6.120(B). Thus, charges in the instant case against defendant Hobbs were clearly “related”
to charges against defendant Coker. But our Supreme Court in Hana, supra at 346-347, stated as
follows:
Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substantial rights will be prejudiced
and that severance is the necessary means of rectifying the potential prejudice.
The failure to make this showing in the trial court, absent any significant
indication on appeal that the requisite prejudice in fact occurred at trial, will
preclude reversal of a joinder decision.
No lesser standard applies even where codefendants intend to present antagonistic
defenses. Hana, supra at 347-348. The Hana Court explained:
Inconsistency of defenses is not enough to mandate severance; rather, the
defenses must be “mutually exclusive” or “irreconcilable.” Moreover, incidental
spillover prejudice, which is almost inevitable in a multi-defendant trial, does not
suffice. The tension between defenses must be so great that a jury would have to
believe one defendant at the expense of the other. [Id. at 349 (citations and
internal punctuation omitted).]
Defense counsel argued at the motion to sever that Hobbs would present a defense of
“mere presence” while Coker would present an alibi defense. We agree with the trial court that
these defenses were not “mutually exclusive” or “irreconcilable,” as discussed in Hana. Further,
defendant Hobbs has not otherwise established that severance was necessary to avoid prejudice
to his substantial rights. Although Coker testified he was elsewhere at the time of the shooting,
he did not accuse Hobbs. Hobbs never testified or directly accused Coker. Based on the
evidence at trial, the jury could have believed both that Coker was not at the scene of the
shooting and that Hobbs was, but did not participate in killing the victim. Additionally, Hobbs
has not established actual prejudice occurred at trial. Like the trial court in Hana, the trial court
here instructed the jury that it must determine guilt on an individualized basis.
Nevertheless, Hobbs argues that prejudice requiring reversal occurred because witnesses
testified at trial concerning admissions Coker made, and because Coker did not testify on his
own behalf, Hobbs was denied the opportunity to cross-examine him regarding these admissions
in violation of his rights under the Confrontation Clause. We find the record does not support
this argument. The prosecutor called two sheriff’s deputies to testify concerning Coker’s
admissions while he was incarcerated awaiting trial. But Coker also testified that although he
talked to the deputies, he denied confessing to the crime. Further, Hobbs’ trial counsel crossexamined Coker, albeit not regarding the alleged admissions. Regardless of whether the denial
of the right to cross-examine a codefendant would create prejudice mandating severance, no such
denial occurred in the instant case. “[W]hen the declarant appears for cross-examination at trial,
the Confrontation Clause places no constraints at all on the use of his prior testimonial
statements.” Crawford v Washington, 541 US ___; ___ S Ct ___; ___ L Ed 2d ___ (2004), slip
op at 23 n 9, citing California v Green, 399 US 149, 162; 90 S Ct 1930; 26 L Ed 2d 489 (1970).
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Moreover, Coker’s admissions did not prejudice Hobbs because he argued that Coker was solely
responsible for the murder, and because the trial court instructed the jury that the admissions
were admitted only against Coker and could not be considered as evidence of Hobbs’ guilt.
Thus, error warranting reversal did not occur.
For the above reasons, we conclude the trial court did not abuse its discretion by denying
Hobbs’ motion for a separate trial.
IV. Conclusion
In Docket No. 238738, we affirm defendant Coker’s convictions and sentences. In
Docket No. 238739, we affirm defendant Hobbs’ convictions and sentences.
/s/ Kathleen Jansen
/s/ Jane E. Markey
/s/ Hilda R. Gage
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