PEOPLE OF MI V IVAN LEE BECHTOL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 30, 2004
Plaintiff-Appellee,
v
No. 246345
Kalkaska Circuit Court
LC No. 01-002162-FC
IVAN LEE BECHTOL,
Defendant-Appellant.
Before: Neff, P.J., and Smolenski and Schuette, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of first-degree home
invasion, MCL 750.110a(2), conspiracy to commit first-degree murder, MCL 750.316(a) and
MCL 750.157a, conspiracy to commit kidnapping, MCL 750.349 and MCL 750.157a, and
attempted kidnapping, MCL 750.349 and MCL 750.92. Defendant was sentenced to ten to
twenty years’ imprisonment for the first-degree home invasion conviction, life imprisonment for
the conspiracy to commit first-degree murder conviction, eighteen to twenty-eight years’
imprisonment for the conspiracy to commit kidnapping conviction, and three to five years’
imprisonment for the attempted kidnapping conviction. Defendant’s home invasion sentence is
to be served consecutively to his other sentences. We affirm.
I
This case stems from the abduction and murder of a twenty-year-old woman, whose body
was found in her partially submerged car in the Torch River on September 5, 2001. Two days
earlier, in the early morning hours of September 3, 2001, defendant was involved in a home
invasion and attempted abduction of the victim from a trailer by William Cron, who had a
previous relationship with the victim. It was the prosecutor’s theory that defendant conspired
with Cron to kidnap and murder the victim to silence her concerning the perpetrators’ drug use or
Cron’s other alleged criminal activity.
II
Defendant first argues that he was denied due process when the prosecution intimidated a
potential defense witness into not testifying at trial. Attempts by a prosecutor to intimidate a
proposed witness into not testifying can constitute a denial of due process. People v Hooper, 157
Mich App 669, 674-675; 403 NW2d 605 (1987). However, contrary to defendant’s assertion, the
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record establishes that the prosecutor did not intimidate the proposed witness into not testifying.
The prosecutor never told the witness that he would be prosecuted if he testified. Instead, the
prosecutor advised the court, out of the presence of the witness and jury, that it may need to
inform the witness of his rights under the Fifth Amendment.1 The court questioned the witness
outside the presence of the jury, see People v Poma, 96 Mich App 726, 732; 294 NW2d 221
(1980), and the witness subsequently asserted his privilege.
Defendant additionally argues that the witness did not have a valid Fifth Amendment
right to assert. However, “testimony having even a possible tendency to incriminate is protected
against compelled disclosure.” People v Lawton, 196 Mich App 341, 346; 492 NW2d 810
(1992); see also Poma, supra at 733 (observing that a hearing should be held to determine if a
witness “will either properly or improperly claim the protection against self-incrimination”
[emphasis added]). Here, the witness had written a letter to defense counsel offering favorable
testimony in exchange for defense counsel’s procuring the dismissal of various charges pending
against the witness. The witness also threatened to not testify if counsel did not comply with his
demands. Given the concern that this could expose the witness to prosecution, e.g., under MCL
750.122(3)(b) referenced by defendant, we reject defendant’s argument.
III
Defendant argues that he was denied the effective assistance of counsel when counsel
failed to object to testimony regarding defendant’s invocation of the right to counsel and the
right to remain silent during police questioning. “The Fifth Amendment guarantees an accused
the right to remain silent during his criminal trial, and prevents the prosecution from commenting
on the silence of a defendant who asserts the right.” Jenkins v Anderson, 447 US 231, 235; 100
S Ct 2124; 65 L Ed 2d 86 (1980). To establish an ineffective assistance of counsel claim, a
defendant must show: (1) that counsel’s performance fell below an objective standard of
reasonableness under prevailing norms, and (2) that counsel’s deficient performance prejudiced
the defense. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984);
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). To demonstrate prejudice,
the defendant must show that but for counsel’s errors, there is a reasonable probability that the
result of the proceedings would have been different. Strickland, supra at 694; Pickens, supra at
314, 326-327.
In People v Schollaert, 194 Mich App 158, 164; 486 NW2d 312 (1992), we addressed the
issue whether a defendant’s constitutional rights are violated by the admission as substantive
evidence of testimony concerning a defendant’s silence before either custodial interrogation or
the giving of Miranda2 warnings. We held that the admission of defendant’s silence before a
custodial interrogation or Miranda warnings did not violate his constitutional rights. Schollaert,
supra at 166-167; see also People v Sutton (After Remand), 436 Mich 575, 599; 464 NW2d 276
(1990). Here, defendant did not receive Miranda warnings before he requested a lawyer, nor
1
US Const, Am V.
2
Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966).
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was he subject to custodial interrogation.3 Thus, the statement was admissible. Under these
circumstances, counsel cannot be deemed to have rendered ineffective assistance by failing to
raise a futile objection. People v Milstead, 250 Mich App 391, 401; 648 NW2d 648 (2002).
IV
Defendant argues that because a statement made by the victim to police investigating the
events giving rise to the home invasion charge was testimonial, its admission at trial violated his
rights under the Confrontation Clause because he did not have an opportunity to cross-examine
her. The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” US Const, Am VI. Defendant’s argument is predicated on Crawford v Washington, ___
US ___; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Crawford held that for testimonial evidence to
be admissible at trial, the Sixth Amendment demands that the declarant be unavailable and that
the defendant have had “a prior opportunity for cross-examination” of the declarant. Id. at 1374.
While the Court decided to “leave for another day any effort to spell out a comprehensive
definition of ‘testimonial[,]’” the Court did indicate that “it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id.
The only exemplar on this list that arguably applies is the last—police interrogations.
Clearly, the victim is unavailable. We conclude, however, that the victim’s statement to the
police officer was not the product of a structured police interrogation. Thus, the rule of
Crawford does not apply. In any event, even if the statement was testimonial in nature, we find
any error in its admission harmless beyond a reasonable doubt given that testimony regarding the
events set forth in the victim’s statement was properly presented to the jury through other
testimony. People v McPherson, 263 Mich App 124, 131; 687 NW2d 370 (2004) (observing that
“when a trial court commits an error that denies a defendant his constitutional rights under the
Confrontation Clause, US Const, Ams VI and XIV, we need not reverse if the error is harmless
beyond a reasonable doubt”).
V
Defendant argues that the trial court erred in determining that defendant’s convictions
arose from the same transaction and thus sentencing him to consecutive terms of imprisonment.
We disagree. The primary goal of judicial interpretation of statutes is “‘to ascertain and give
effect to the intent of the legislature.’” People v Weeder, 469 Mich 493, 497; 674 NW2d 372
(2004), quoting People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). If the plain
meaning of the statute is clear, judicial construction is neither necessary nor permitted. Weeder,
supra; Pasha, supra.
3
While defendant was in police custody, he was not subjected to police interrogation while in
custody.
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MCL 750.110a(8) provides: “The court may order a term of imprisonment imposed for
home invasion in the first degree to be served consecutively to any term of imprisonment
imposed for any other criminal offense arising from the same transaction.” If statutory terms
remain undefined by the Legislature, this Court may consult dictionary definitions of those
terms. People v Stone, 463 Mich 558, 563; 621 NW2d 702 (2001). Black’s Law Dictionary (6th
ed) defines ‘transaction’ as: “[a]ct of transacting or conducting any business; between two or
more persons; . . . that which is done; an affair.” Random House Webster’s College Dictionary
(2nd ed) defines ‘arise’ as “to result; spring or issue . . . .”
Despite defendant’s assertion to the contrary, the evidence presented in this case shows
that the conspiracy, attempt, and home invasion convictions arose from the same overall scheme
or plan to abduct the victim, and thus from the same transaction. Therefore, the trial court did
not err in imposing consecutive sentences.
VI
In a related argument, defendant asserts that because the trial court’s imposition of
consecutive sentences increased his cumulative penalty, a jury should have determined whether
the crimes arose from the same transaction. “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v New Jersey, 530 US
466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000); see also Blakely v Washington, ___ US ___;
124 S Ct 2531; 159 L Ed 2d 403 (2004). However, MCL 750.110a(8), does not permit the trial
court to increase the maximum penalty beyond the statutory maximum on the basis of judicial
fact-finding. Although a defendant is exposed to an overall longer period of imprisonment when
consecutive sentences are imposed, the penalty for each crime is not increased beyond the
statutory maximum.
VII
Defendant raises two additional issues in his Standard 11 brief. We are unpersuaded that
either claim warrants reversal of his conviction.
A
Defendant argues that he was denied his right to a fair trial when the trial court allowed
the prosecutor to introduce a witness’s prior consistent statement, MRE 801(d)(1)(B), absent an
allegation that the witness had recently fabricated his story and despite the fact that the witness
had a strong motivation to lie when he made the prior statement. We disagree.
Defendant failed to preserve this issue for appeal by objecting to the admission of the
evidence during trial. This Court reviews unpreserved evidentiary issues for plain error affecting
defendant’s substantial rights. People v Taylor, 252 Mich App 519, 523; 652 NW2d 526 (2002).
“Reversal is only warranted if the unpreserved error resulted in the conviction of an actually
innocent defendant” or “seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id.
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Defendant has not shown plain error that affected his substantial rights. Four
requirements must be satisfied for admission of a prior consistent statement under MRE
801(d)(1)(B): (1) the declarant must testify at trial and be subject to cross-examination, (2) there
must be an express or implied charge of recent fabrication or improper influence or motive, (3)
the statement must be consistent with the declarant’s challenged testimony, and (4) the statement
must be made before the time that the motive to fabricate arose. People v Jones, 240 Mich App
704, 707; 613 NW2d 411 (2000).
Contrary to defendant’s assertion that there was no allegation of recent fabrication in this
case, the record indicates that defense counsel alleged that the witness fabricated the story to
obtain a plea deal with prosecutors. Further, it appears that the statement was made before, not
after an offer of leniency, i.e., the time that the alleged motive to lie arose. Id. at 711. Thus, we
find no plain error. Moreover, we cannot conclude that even if the admission of the prior
statement was error, it warrants reversal of defendant’s conviction. Taylor, supra.
B
Defendant argues that the evidence was insufficient to sustain his convictions. We
disagree.
Viewed in a light most favorable to the prosecution, there was sufficient evidence
presented to sustain defendant’s convictions. People v Johnson, 460 Mich 720, 722-723; 597
NW2d 73 (1999). Contrary to defendant’s argument, there was sufficient evidence to sustain
defendant’s convictions of first-degree home invasion and attempted kidnapping on an aiding
and abetting theory given the evidence of William Cron’s entry into the trailer where the victim
was staying and his attempt to forcibly remove her from the trailer, and given evidence of
defendant’s acknowledgement of his involvement. The jury could properly choose to reject
defendant’s exculpatory testimony in assessing witness credibility. People v Avant, 235 Mich
App 499, 506; 597 NW2d 864 (1999).
Likewise, there was sufficient evidence to sustain defendant’s conspiracy convictions.
The prosecutor presented testimony that established defendant’s involvement in the subsequent
abduction and murder of the victim by conspiring with Cron. Although defendant challenges
this testimony, as noted above, matters of credibility are left to the trier of fact. Id.
We reject defendant’s argument that because he was taken into temporary custody on
September 3, 2001, and the victim was found dead on September 5, 2001, that no agreement
could have continued during that time to support a conviction of conspiracy. The offense of
conspiracy is complete upon the formation of the agreement. People v Justice (After Remand),
454 Mich 334, 345-346; 562 NW2d 652 (1997). The fact that defendant was in temporary
custody during the period at issue does not automatically negate proof of defendant’s
involvement in a conspiracy to kidnap and murder the victim.
Affirmed.
/s/ Janet T. Neff
/s/ Michael R. Smolenski
/s/ Bill Schuette
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