PEOPLE OF MI V TIMOTHY KEITH GILLAM
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 31, 2007
Plaintiff-Appellee,
v
No. 266893
Macomb Circuit Court
LC No. 05-002477-FH
TIMOTHY KEITH GILLAM,
Defendant-Appellant.
Before: White, P.J., and Zahra and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of attempted assault with intent to rob
while armed,1 MCL 750.92 and MCL 750.89, and sentenced as an habitual offender, third
offense, MCL 769.11, to 21 to 60 months’ imprisonment.2 (Amended Judgment of Sentence,
1/30/07.) He appeals as of right. We affirm.
I. Basic Facts And Procedure
On June 3, 2005, defendant entered a Speedway gas station on 13 Mile Road in
Roseville. The complainant, who was the gas station clerk, testified that defendant approached
the counter holding what appeared to be a handgun inside a glove. Defendant placed the glove
on the counter and, with his hand on the glove, said: “[L]isten very carefully. This is a stick up.
I want all of the money in the drawer now.” When the complainant did not comply, defendant
moved around the corner of the counter toward the register. At that point, the complainant
concluded that the glove did not contain a gun. The complainant then intercepted defendant,
shoved him, and demanded he leave the store. Defendant instead approached the register, the
complainant blocked him, and defendant fled toward I-94.3
1
Defendant was charged with assault with intent to rob while armed, MCL 750.89.
2
Defendant was originally sentenced to a term of 24 to 60 months’ imprisonment. After this
Court granted defendant’s motion to remand, he was resentenced to the lesser term of 21 to 60
months’ imprisonment. Because defendant has already received the sentencing relief he
requested, it is unnecessary to address defendant’s sentencing issue on appeal.
3
In-store surveillance video of the incident was played for the jury.
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The complainant called the police and defendant was arrested shortly thereafter. Upon
searching defendant, the police found a jersey work glove. Inside the glove was a crushed pop
bottle twisted and fashioned in a way that looked similar to a gun. Part of the glove’s fabric had
been shoved into the mouth of the bottle made to look similar to the barrel of a gun. In a
statement to the police, defendant denied attempting to rob the gas station. Defendant admitted
going in the gas station, but claimed that he was waiting for a bus and went inside only to obtain
change for the bus. He further claimed that the pop bottle was shoved inside the glove because
he had drunk a beverage and was finished with the bottle. An arresting officer testified that
when he searched defendant, defendant had $1.11, completely in change, and that defendant was
found walking down the shoulder of I-94 instead of waiting for a bus.
II. Directed Verdict
Defendant first argues that the trial court erred by denying his motion for a directed
verdict on the charge of assault with intent to rob while armed. Defendant contends that there
was no credible evidence that he was armed, there was “no taking, so there was no intent that can
be inferred from the taking,” and the complainant’s credibility was “suspect.”
This Court reviews a trial court’s decision on a motion for a directed verdict de novo to
determine whether the evidence, viewed in the light most favorable to the prosecution, could
persuade a rational trier of fact that the essential elements of the crime were proven beyond a
reasonable doubt. People v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001).
The elements of the crime of assault with intent to rob while armed are: (1) that the actor
was armed with a dangerous weapon, or any article used or fashioned in a manner to lead a
person so assaulted reasonably to believe it to be a dangerous weapon; (2) that the actor
committed an assault; and (3) that the assault was committed with the intent to rob and steal.
MCL 750.89; People v Akins, 259 Mich App 545, 554; 675 NW2d 863 (2003), lv den 470 Mich
880 (2004).
In order to establish the armed element, there must be “some objective evidence of the
existence of a weapon or article.” People v Jolly, 442 Mich 458, 468; 502 NW2d 177 (1993).
“The existence of some object, whether actually seen or obscured by clothing or something such
as a paper bag, is objective evidence that a defendant possesses a dangerous weapon or an article
used or fashioned to look like one. Related threats, whether verbal or gesticulatory, further
support the existence of a weapon or article.” Id. at 469-470. In order to prove the intent to rob
element, the prosecution must show that at the time of the assault, the defendant intended to
permanently take money or property from the complainant. People v Garcia, 448 Mich 442,
482; 531 NW2d 683 (1995). Circumstantial evidence and reasonable inferences arising from the
evidence can constitute satisfactory proof of the elements of the crime, including the intent to
steal. People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996), lv den
455 Mich 870 (1997). All conflicts in the evidence must be resolved in favor of the prosecution.
People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
Viewed in a light most favorable to the prosecution, a rational trier of fact could find that
the essential elements of assault with intent to rob while armed were proven beyond a reasonable
doubt. Evidence was presented that defendant walked in the gas station holding what appeared
to be a handgun shoved inside a glove. Defendant placed the object on the counter, leaving his
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hand on it, and said: “[L]isten very carefully. This is a stick up. I want all of the money in the
drawer now.” The complainant believed defendant had a gun because of what defendant said,
“the shape” of the object, and because the object appeared to have a “handle like a revolver” and
“a barrel.” According to police testimony, the article inside the glove “was twisted and
fashioned in a way that looked similar to a gun,” and part of the article was “shoved into the
mouth of the bottle which made it looked similar to the barrel of a gun.”
From this evidence, a jury could reasonably infer that defendant was armed and had the
requisite intent to rob. Contrary to defendant’s argument, it is not necessary for the defendant to
actually take any money or property to establish the intent to rob. Garcia, supra. Further,
although defendant claims that the complainant’s testimony was not credible, the credibility of
witnesses is for the jury to determine. See also People v Lemmon, 456 Mich 625, 642; 576
NW2d 129 (1998) (“absent exceptional circumstances, issues of witness credibility are for the
jury, and the trial court may not substitute its view of the credibility ‘for the constitutionally
guaranteed jury determination thereof.’”).
In sum, on the basis of the evidence presented, a rational trier of fact could conclude that
the essential elements of assault with intent to rob while armed were met. Therefore, the trial
court correctly denied defendant’s motion for a directed verdict. For the same reasons, the
evidence was sufficient to sustain defendant’s conviction of the inchoate offense of attempted
assault with intent to rob while armed.
III. Effective Assistance Of Counsel
Defendant also argues that a new trial is required because defense counsel was
ineffective. We disagree. Because defendant failed to raise this issue in the trial court in
connection with a motion for a new trial or an evidentiary hearing, this Court’s review is limited
to mistakes apparent on the record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922
(1973); People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19
(2000).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was below an objective standard of
reasonableness under prevailing norms and that the representation so prejudiced the defendant
that there is a reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different. Id.
We reject defendant’s claim that defense counsel’s failure to object to the prosecutor’s
use of the term “victim” to refer to the complainant during opening statement constituted
ineffective assistance of counsel. In opening statement, the prosecutor stated:
Now ladies and gentlemen of the jury, if you look out there in the gallery you are
not going to see any cameras from CNN, Court TV, Fox News, Channel 7, what
have you. In fact, I don’t even think there are any reporters out there from
Macomb Daily or the Detroit Free Press. No paparazzi. That doesn’t mean this
isn’t an important case. And one person who it is a very important case to his
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name is Harry Schurr. And Harry Schurr is the victim in this matter. Harry
Schurr is the victim of an assault with the intent to rob while armed.
Viewed in context,4 the prosecutor was indicating what he intended to prove, i.e., that the
complainant was a victim in this case.5 People v Moss, 70 Mich App 18, 32; 245 NW2d 389
(1976), aff’d 405 Mich 38 (1979) (“The purpose of an opening statement is to tell the jury what
the advocate proposes to show.”). The prosecutor did not repeatedly refer to the complainant as
“the victim.” Further, it is highly unlikely that the prosecutor’s brief and isolated references
during opening statement affected the presumption of innocence. In the opening statement,
subsequent to indicating that the complainant was “the victim,” the prosecutor delineated the
elements of the offense and stated that he was required to prove each element beyond a
reasonable doubt. In addition, the trial court instructed the jury that defendant was presumed
innocent, that the prosecution was required to prove the elements of the crime beyond a
reasonable doubt, and that the lawyers’ statements are not evidence. “Jurors are presumed to
follow their instructions, and instructions are presumed to cure most errors.” People v Abraham,
256 Mich App 265, 279; 662 NW2d 836 (2003), lv den 471 Mich 916 (2004). Under these
circumstances and given the weight of the evidence produced at trial, no reasonable likelihood
exists that defendant would not have been convicted but for trial counsel’s failure to object.
Effinger, supra.
Defendant further argues that defense counsel was ineffective for failing to object to the
prosecutor’s use of leading questions during the examination of the complainant. On direct
examination, after the complainant testified about the incident, the jury viewed the in-store
surveillance video of the incident. Thereafter, the prosecutor played the video while questioning
the complainant about its contents:
Q. Where was he going?
A. As I said, he was headed towards the other end of the counter.
***
Q. - - when the Defendant comes up to the counter, is what you saw in the
videotape [sic] he was holding the glove with what you thought was a gun
inside the glove on the counter top?
A. Yes, sir.
4
This Court reviews preserved claims of prosecutorial misconduct case by case, examining the
challenged remarks in context, to determine whether the defendant received a fair and impartial
trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995), reh den 448 Mich 1225
(1995); People v Rodriguez, 251 Mich App 10, 29-30; 650 NW2d 96 (2002), lv den 468 Mich
880 (2003).
5
“Victim” is defined as “a person harmed by a crime, tort, or other wrong.” Black’s Law
Dictionary (7th ed).
-4-
Q. There is also a point in the videotape where it appears that you cock your head
down a little bit downward. And obviously it is difficult because the tape is
slowed down so much, but is [that] the point that you were focusing on the
weapon?
A. Yes, sir.
Q. And then obviously in the second version you see you leave the cash register
and move to what was your right. Was that the point in time when you were
going down - A. Yes, sir.
MRE 611(c)(1) states that “[l]eading questions should not be used on the direct
examination of a witness except as may be necessary to develop the witness’ testimony.” To
warrant reversal based on a prosecutor’s use of leading questions, the defendant must show
“some prejudice or pattern of eliciting inadmissible testimony.” People v Watson, 245 Mich App
572, 587; 629 NW2d 411 (2001), lv den 465 Mich 933 (2001) (citation omitted). Reversal is
required if the defendant was prejudiced by the leading questions. Id.
We agree that the prosecutor should not have used leading questions. But viewed in
context, defendant was not prejudiced. The jury viewed the videotape, and the complainant had
already testified in detail about the incident. Further, apart from making general comments,
defendant has failed to show “some prejudice or pattern of eliciting inadmissible testimony.” Id.
Indeed, the prosecutor could have elicited the same testimony through other questions.
Consequently, defendant cannot demonstrate that the result of the proceeding would have been
different had defense counsel objected. Effinger, supra.
IV. Statement By Defense Counsel Not Admitted
Defendant also argues that the trial court’s evidentiary ruling deprived him of his
constitutional right to present a defense. We disagree. We review de novo constitutional
questions regarding a defendant’s right of confrontation. People v Beasley, 239 Mich App 548,
557; 609 NW2d 581 (2000), lv den 462 Mich 906 (2000). A trial court’s evidentiary rulings are
reviewed for an abuse of discretion. Watson, supra at 572.
On direct examination, the arresting officer testified that although defendant stated that
he went in the gas station to obtain change for the bus, “he already had a $1.11 completely in
change.” During defense counsel’s cross-examination of the officer, the following exchange
occurred:
Q. Do you know - - you said it was unusual or odd that he had a $1.11 yet he had
gone to get change. Do you know how much bus [fare] is?
A. No, I don’t.
Q. It is $1.75.
A. Okay.
-5-
The prosecutor objected, arguing that defense counsel was testifying. Defense counsel
withdrew the question. The trial court sustained the objection, and instructed the jury to
disregard the question.
On this record, the trial court did not abuse its discretion in sustaining the prosecutor’s
objection. Defendant does not address the propriety of the trial court’s evidentiary ruling, but
only asserts that the ruling denied him his right to present a defense. Although a defendant has a
constitutional right to present a defense, US Const, Am VI; Const 1963, art 1 § 20; People v
Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993), he must still comply with procedural
and evidentiary rules established to assure fairness and reliability in the verdict. See People v
Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984); People v Arenda, 416 Mich 1, 8; 330 NW2d
814 (1982). Here, the trial court did not preclude defendant from presenting evidence of the cost
of bus fare, but only prevented this evidence from being offered in the form of “testimony” by
defense counsel. Moreover, contrary to defendant’s implication, evidentiary rulings do not
ordinarily rise to the level of a constitutional violation. See Crane v Kentucky, 476 US 683, 690;
106 S Ct 2142; 90 L Ed 2d 636 (1986). For the same reasons, defense counsel was not
ineffective for failing to challenge the prosecutor’s objection. See People v Snider, 239 Mich
App 393, 425; 608 NW2d 502 (2000), lv den 463 Mich 855 (2000) (counsel is not required to
make a futile argument).
V. Comments By The Court Were Impartial
Defendant further argues that the trial court denied him a fair and impartial trial by
improperly commenting on witnesses’ in-court identification of defendant. We disagree.
Because defendant did not challenge the trial court’s conduct below, we review this claim for
plain error affecting substantial rights. People v Kimble, 470 Mich 305, 312; 684 NW2d 669
(2004); People v Conley, 270 Mich App 301, 305; 715 NW2d 377 (2006), lv den 477 Mich 931
(2006).
During the prosecutor’s examination of the complainant, the following exchange
occurred:
Q. Did you see the person in the courtroom today that robbed you on that day?
A. Yes, sir, right over there, sir.
Q. Could you point him out by an article of clothing please?
A. He’s wearing a blue shirt, sir.
[The prosecutor]:
Your Honor, will the record reflect that the witness has
identified the Defendant?
[The court]:
The record will reflect that.
During the prosecutor’s examination of the arresting officer, the following exchange
occurred:
-6-
Q. Do you see the individual who you patted down that evening prese[n]t in the
courtroom today?
A. Yes, I do.
Q. Where is he seated and what is he wearing?
A. He’s seated - - he’s the bald gentleman to the far right.
[The prosecutor]:
identification?
Your Honor, I would ask that the record reflect
[The trial court]:
The record will reflect that.
It is well established that the trial court has a duty to control trial proceedings in the
courtroom, and has wide discretion and power in fulfilling that duty. Conley, supra at 307
(citations omitted). But a court’s conduct may not pierce the veil of judicial impartiality. Id. at
308. “The appropriate test to determine whether the trial court’s comments or conduct pierced
the veil of judicial impartiality is whether the trial court’s conduct or comments ‘were of such a
nature as to unduly influence the jury and thereby deprive the appellant of his right to a fair and
impartial trial.’” Id. (citations omitted).
No plain error is evident from the record. The trial court’s remarks were not of such a
nature as to unduly influence the jury. Id. Rather, the trial court properly exercised its duty to
address an evidentiary matter by acknowledging the identification testimony for the record. The
trial court’s response, “[t]he record will reflect that,” was not calculated to cause the jury to
believe that the court had any opinion regarding the case. Moreover, the trial court instructed the
jury that it had a duty to rule on the admissibility of evidence. The trial court also instructed the
jurors that its rulings are not evidence, that it is not trying to influence the vote or express a
personal opinion about the case when it makes a comment or gives an instruction, and that if they
believe the court has an opinion, that opinion must be disregarded. As previously indicated,
jurors are presumed to follow their instructions. Abraham, supra.
VI. Felonious Assault Instruction Unwarranted
Defendant also argues that the trial court erred in refusing to instruct the jury on felonious
assault, MCL 750.82, as a lesser offense of assault with intent to rob while armed. We disagree.
MCL 768.32 only permits instruction on necessarily lesser included offenses, not cognate
lesser offenses. People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002); People v Cornell,
466 Mich 335, 357-358; 646 NW2d 127 (2002). “A necessarily included offense is one that
must be committed as part of the greater offense; it would be ‘impossible to commit the greater
offense without first having committed the lesser.’” People v Alter, 255 Mich App 194, 199; 659
NW2d 667 (2003), lv den 469 Mich 873 (2003) (citation omitted). A cognate offense is one that
contains an element not found in the greater offense. Cornell, supra at 345. The determination
whether an offense is a lesser included offense is a question of law subject to de novo review.
People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 (2003).
-7-
In People v Walls, 265 Mich App 642, 645-646; 697 NW2d 535 (2005), lv den 474 Mich
1142 (2006), this Court held that felonious assault is not a necessarily lesser included offense of
assault with intent to rob while armed. The Court explained that felonious assault requires the
possession of a dangerous weapon, while assault with intent to rob while armed allows
conviction when the offender has “any article used or fashioned in a manner to lead a person so
assaulted reasonably to believe it to be a dangerous weapon.” Id. at 646 (citation omitted).
Because the elements of felonious assault “are not completely subsumed in the greater offense,”
“felonious assault is a cognate offense of assault with intent to rob while armed.” Id. (citations
omitted). Consequently, the trial court’s refusal to instruct the jury on felonious assault was not
error.
Affirmed.
/s/ Helene N. White
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
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