PEOPLE OF MI V DARRYL VON JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 27, 2007
Plaintiff-Appellee,
v
No. 271442
St. Clair Circuit Court
LC Nos. 05-002683-FC
05-002854-FC
DARRYL VON JOHNSON,
Defendant-Appellant.
Before: Servitto, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of armed robbery, MCL 750.529, and
assault with intent to rob while armed, MCL 750.89. He was sentenced to concurrent prison
terms of 19 to 39 years for each conviction, to be served consecutive to a one-year jail term
defendant previously received for violating his probation. We affirm.
I. Joinder of Charges
Defendant was charged in two separate files. He was originally charged in LC No. 05002854-FC with armed robbery against Angela Essenmacher and assault with intent to rob while
armed against Jennifer Steiner. The offense against Essenmacher occurred on the afternoon of
October 29, 2005, and the offense against Steiner occurred at approximately 2:00 a.m. on
October 30, 2005. Defendant was separately charged in LC No. 05-002683 with armed robbery
against Miranda Stimac for an offense that was committed at approximately 3:00 a.m. on
October 30, 2005. Both cases were consolidated for trial.
Defendant first argues that the trial court erred in granting the prosecutor’s motion to join
the two cases for trial. We disagree.
Joinder of related offenses is governed by MCR 6.120. The question whether charges are
related for purposes of consolidating them for trial is a question of law that this Court reviews de
novo. People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). A trial court’s decision
on a motion for joinder under MCR 6.120 is reviewed for an abuse of discretion. Id.
MCR 6.120(B) provides, in pertinent part
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Postcharging Permissive Joinder or Severance. On its own initiative,
the motion of a party, or the stipulation of all parties, except as provided in
subrule (C), the court may join offenses charged in two or more informations or
indictments against a single defendant, or sever offenses charged in a single
information or indictment against a single defendant, when appropriate to
promote fairness to the parties and a fair determination of the defendant's guilt or
innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain
on the parties’ resources, the potential for confusion or prejudice stemming from
either the number of charges or the complexity or nature of the evidence, the
potential for harassment, the convenience of witnesses, and the parties’ readiness
for trial.
In this case, the three incidents were part of a crime spree that began on the afternoon of
October 29 and ended during the early morning hours of October 30, 2005. They involved a
series of robberies against business establishments and in each incident defendant wielded a
knife against a woman who was tending to a cash register and demanded the money from the
register. The timing of the offenses and the manner in which each was committed demonstrate
that they involved a series of acts constituting parts of a single scheme or plan and, therefore, the
offenses were related under MCR 6.120(B)(1)(c). Moreover, the prosecutor informed the court
that the same police witnesses would be presented in both cases, so the convenience of the
witnesses weighed in favor of joinder. Under these circumstances, the trial court did not abuse
its discretion in joining the charges for trial.
II. Self-Representation
Defendant next argues that the trial court erred in denying his request for new appointed
counsel, and also erred when it subsequently permitted defendant to represent himself at trial.
We disagree.
A. Request for New Counsel
A trial court’s decision concerning substitution of counsel is reviewed for an abuse of
discretion. People v Flores, 176 Mich App 610, 614; 440 NW2d 47 (1989). Although an
indigent defendant is constitutionally guaranteed the right to counsel, he is not entitled to the
appointment of an attorney of his choice. Id. at 613. Nevertheless, a defendant is entitled to
have his assigned lawyer replaced upon a showing of adequate cause, provided that substitution
will not unreasonably disrupt the judicial process. Id. at 613-614.
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In this case, the trial court had already granted defendant’s earlier request for new
appointed counsel and warned defendant at that time that he needed to cooperate with his new
attorney. Defendant again requested appointment of new counsel on the day of trial. Defendant
complained that his new attorney had not come to see him and had no knowledge about the case.
Upon further inquiry by the court, however, defendant admitted that defense counsel had
discussed the case with him. The trial court also elicited prior to trial that defense counsel had
reviewed various videotapes, obtained necessary discovery, and was prepared for trial. Defense
counsel admitted that he had not filed certain motions requested by defendant, but explained that
the motions were frivolous. On appeal, defendant has not identified any nonfrivolous motion
that counsel failed to file. It is apparent from the record that the trial court provided defendant
with the opportunity to state his reasons for wanting new counsel, and that defendant failed to
demonstrate adequate cause for substitution. Additionally, new counsel had already been
appointed once before at defendant’s request, and another substitution on the day scheduled for
trial would have unreasonably disrupted the judicial process. Under the circumstances, the trial
court did not abuse its discretion in denying defendant’s request for new counsel.
B. Self-Representation
Defendant was permitted to represent himself at trial, with his appointed attorney serving
as standby advisory counsel. Defendant now argues that the trial court erred by allowing him to
represent himself at trial without complying with MCR 6.005(D)(1), or the requirements of
People v Anderson, 398 Mich 361; 247 NW2d 857 (1976).
In People v Willing, 267 Mich App 208, 219-220; 704 NW2d 472 (2005), this Court
explained:
Defendants who face incarceration are guaranteed the right to counsel at
all critical stages of the criminal process by the Sixth Amendment, which applies
to the states through the Due Process Clause of the Fourteenth Amendment. Both
federal and state law also guarantee a defendant the right of self-representation,
although this right is subject to the trial court's discretion.
Before granting a defendant's request to represent himself or herself, the
trial court must determine that the three factors set forth in People v Anderson
have been met: (1) the defendant's request is unequivocal, (2) the defendant is
asserting the right knowingly, intelligently, and voluntarily after being informed
of the dangers and disadvantages of self-representation, and (3) the defendant's
self-representation will not disrupt, unduly inconvenience, and burden the court
and the administration of the court's business. In addition, a trial court must
satisfy the requirements of MCR 6.005(D), which prohibits the trial court from
allowing the defendant to make an initial waiver of the right to counsel without
first
“(1) advising the defendant of the charge, the maximum possible prison
sentence for the offense, any mandatory minimum sentence required by law, and
the risk involved in self-representation, and
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(2) offering the defendant the opportunity to consult with a retained
lawyer or, if the defendant is indigent, the opportunity to consult with an
appointed lawyer.”
A trial court must substantially comply with the Anderson factors and the court
rule for a defendant to effect a valid waiver of the right to counsel.
When determining whether the requirements were met, we indulge every
reasonable presumption against waiver of fundamental constitutional rights.
Presuming waiver from a silent record is impermissible. The record must show,
or there must be an allegation and evidence which show, that an accused was
offered counsel but intelligently and understandingly rejected the offer. Anything
less is not waiver. [Footnotes and internal quotations omitted.]
We disagree with defendant’s claim that the trial court failed to adequately inform him of
the risks and disadvantages of self-representation. The trial court is required to make the
defendant aware of the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open. Anderson,
supra at 368. In this case, the trial court informed defendant that he would be subject to the
same rules as any attorney, explaining what this meant in the context of a trial. The court later
referred to the maxim that “an attorney who represents himself has a fool for a client,” and
explained to defendant that although he had no legal background and did not understand parts of
the law, he would have to follow proper trial procedures and rules, and follow the rules of
evidence. We conclude that defendant was sufficiently informed of the dangers and
disadvantages of self-representation.
We also reject defendant’s argument that he did not unequivocally request to represent
himself. Although defendant initially indicated that he wanted substitute counsel appointed, after
the trial court denied that request and defendant was given the choice between proceeding with
his present attorney or representing himself, he clearly stated that he wanted to represent himself.
Further, the trial court repeatedly gave defendant the option of changing his mind, but defendant
never exercised that option and defendant asked several questions about representing himself and
received answers to those questions. The record establishes that defendant’s request to represent
himself was unequivocal.
Defendant also argues that various rulings by the trial court prevented him from properly
representing himself. Defendant does not expand on this claim and a review of the cited portions
of the record fails to disclose any support for defendant’s claim that the trial court improperly
interfered with defendant’s right of self-representation. To the extent that the trial court required
defendant to adhere to established rules of procedure, this was not error.
III. Adjournment
Defendant argues that the trial court erred in denying his motion for an adjournment. A
trial court’s decision denying a request for an adjournment is reviewed for an abuse of discretion.
People v Coy, 258 Mich App 1, 18-19; 669 NW2d 831 (2003).
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A motion for an adjournment must be based on good cause. Id. at 18. “Good cause”
factors include whether the defendant (1) asserted a constitutional right, (2) had a legitimate
reason for asserting the right, (3) had been negligent, and (4) had requested previous
adjournments. Id. Even with good cause and due diligence, the trial court’s denial of such a
request is not grounds for reversal unless the defendant demonstrates prejudice as a result of the
abuse of discretion. Id. at 18-19.
Defendant requested an adjournment, explaining that he needed time to prepare for trial.
On appeal, however, defendant does not explain how further preparation would have aided his
case and he makes no attempt to explain how he was prejudiced by the denial of his request.
Therefore, reversal is not warranted on the basis of this issue.
IV. Lesser Offense Instruction
Defendant argues that the trial court erred in denying his request for a lesser offense
instruction on attempted robbery. We disagree.
A requested instruction on a necessarily included lesser offense or an attempt is proper
only if the charged greater offense requires the jury to find a disputed factual element that is not
part of the lesser included offense and a rational view of the evidence would support the
instruction. Instruction on cognate included lesser offenses is not permissible. People v Cornell,
466 Mich 335, 354; 646 NW2d 127 (2002); People v Silver, 466 Mich 386, 388; 646 NW2d 150
(2002); see also People v Smith, 478 Mich 64, 73; 731 NW2d 411 (2007).
“Necessarily included offenses are offenses in which the elements of the lesser offense
are completely subsumed in the greater offense.” People v Mendoza, 468 Mich 527, 532 n 3;
664 NW2d 685 (2003). Generally, a necessarily included offense is one which 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 Bearss, 463 Mich 623, 627; 625 NW2d 10
(2001).
In this case, an instruction on attempted robbery as a lesser offense to the armed robbery
charges was not supported by a rational view of the evidence. The victims’ testimony clearly
established a completed robbery. Further, although assault with intent to rob while armed may
include as a factual matter conduct that, taken alone, would constitute an attempted armed
robbery, the legal elements of attempt are not duplicated in the completed offense of assault with
intent to rob while armed. Cf. People v Adams, 416 Mich 53, 56, 58-59; 330 NW2d 634 (1982).
Therefore, attempted armed robbery is a cognate lesser included offense of assault with intent to
rob while armed, and instruction on that offense is not permitted. Accordingly, the trial court
properly denied defendant’s request for an instruction on attempted armed robbery.
V. Prosecutorial Misconduct
Defendant argues that the prosecutor’s conduct denied him a fair trial. We disagree.
Questions of misconduct by the prosecutor are decided case by case. This Court must
examine the prosecutor’s conduct in context to determine whether the defendant was denied a
fair and impartial trial. People v Legrone, 205 Mich App 77, 82-83; 517 NW2d 270 (1994).
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Appellate review of allegedly improper conduct by the prosecutor is precluded where the
defendant fails to timely and specifically object; this Court will only review the defendant’s
claim for plain error. People v Barber, 255 Mich App 288, 296; 659 NW2d 674 (2003).
Defendant first argues that the prosecutor engaged in misconduct by moving to join the
charges for trial. In light of our conclusion in section I that the offenses were sufficiently related
under MCR 6.120(B)(1)(c), and that the trial court did not abuse its discretion in consolidating
the charges for trial, we reject this claim of misconduct.
Defendant also argues that the prosecutor improperly elicited Officer Karen Brisby’s
testimony that when she received a description of the perpetrator from one of the victims, she
thought of defendant. Defendant argues that this testimony was irrelevant and highly prejudicial
because it suggested that defendant had a prior criminal record. Because defendant did not
object to this testimony at trial, our review is limited to plain error affecting defendant’s
substantial rights. At trial, Brisby explained that she was familiar with defendant because she
grew up in the area and had just seen him the day before at a local gas station. Brisby also
testified that she was surprised that defendant could possibly be involved in the crime. Viewed
in context, Brisby’s testimony did not improperly suggest that defendant had a prior criminal
record, nor was it particularly prejudicial. Thus, it did not constitute plain error or affect
defendant’s substantial rights.
VI. Scoring of Offense Variables
Defendant raises several challenges to the trial court’s scoring of the sentencing
guidelines offense variables. Although the trial court's factual findings at sentencing are
reviewed for clear error, People v Babcock, 469 Mich 247, 264-265; 666 NW2d 231 (2003), the
trial court's scoring of the sentencing guidelines will be upheld if there is any evidence in the
record to support it, People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). Here,
we find no scoring errors.
A. OV 1
The trial court scored 15 points for OV 1. Fifteen points are to be scored for OV 1 where
the victim had a reasonable apprehension of an immediate battery when threatened with a knife.
MCL 777.31(1)(b). In this case, one robbery victim testified that defendant came into the store,
grabbed her arm, and demanded money while holding a knife. She explained that she was scared
and pleaded with defendant not to hurt her. The other robbery victim testified that defendant
came into the gas station, armed with a knife, and demanded money. The incident scared her so
much that she quit her job. This evidence was sufficient to support the trial court’s 15-point
score for OV 1.
B. OV 4
The trial court scored ten points for OV 4, which addresses psychological injury to a
victim. The court should score ten points if “serious psychological injury requiring professional
treatment occurred to a victim.” Ten points are proper is the serious psychological injury may
require professional treatment. In making this determination, the fact that treatment has not been
sought is not conclusive. MCL 777.34(2).
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One robbery victim stated to a probation officer that the robbery left her emotionally and
mentally scarred. She further stated she has had nightmares about the robbery, is afraid to be
alone in her house, and is paranoid about going out in public alone. The other robbery victim
also expressed that she was emotionally and psychologically scarred by the incident, has
problems being out in public, and is very nervous around strangers. This evidence was sufficient
to show that both robbery victims suffered a serious psychological injury that may require
professional treatment. Therefore, ten points were properly scored for OV 4.
C. OV 9
The trial court scored ten points for OV 9. Under the version of the sentencing guidelines
in effect at the time of the crime and defendant’s sentencing, the trial court was required to score
ten points under OV 9 if there were between two and nine victims. MCL 777.39(1)(c). In
determining the number of victims, the trial court was to count each person who was placed in
danger of physical injury or loss of life as a victim. MCL 777.39(2)(a); People v Melton, 271
Mich App 590, 592; 722 NW2d 698 (2006).
In People v Cook, 254 Mich App 635, 641; 658 NW2d 184 (2003), this Court held that it
is proper to consider the entirety of a defendant’s conduct in calculating the sentencing guideline
range with respect to each offense where the crimes involved constitute one continuum of
conduct. In this case, the police pursued defendant after the Admiral gas station robbery and
defendant physically fought with the officers. Officer Bean stated that defendant attempted to
flip him over, causing him to fall to the ground. Thus, at a minimum, both Miranda Stimac and
at least one police officer were placed in danger of physical injury during that offense, thereby
justifying a ten-point score.1
D. OV 12
The trial court scored five points for OV 12. Five points should be scored for OV 12 if
one contemporaneous felonious criminal act involving a crime against a person was committed
or if two contemporaneous felonious criminal acts involving other crimes were committed.
MCL 777.42(1)(d) and (e). A felonious criminal act is contemporaneous if both of the following
exist (1) the act occurred within 24 hours of the sentencing offense, and (2) the act has not and
will not result in a separate conviction. MCL 777.42(2).
The evidence indicated that after the Admiral gas station robbery, the police pursued
defendant, who eventually fled on foot. Defendant physically fought with the police before he
was arrested. This evidence showed that defendant committed the crime of resisting or
obstructing a police officer, see MCL 750.479 and MCL 750.81d, which involved a
contemporaneous felonious act involving a crime against a person. Because defendant was
neither charged with, nor convicted of that offense, the trial court properly scored five points for
OV 12.
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Although unnecessary to our analysis, we note that because all three offenses involved a series
of acts constituting parts of a single scheme or plan, each robbery victim could be considered a
victim in the scoring of each offense, thereby also justifying a ten-point score for OV 9.
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E. OV 13
The trial court scored 25 points for OV 13, continuing pattern of criminal behavior.
Twenty-five points should be scored if the offense was part of a pattern of felonious criminal
activity involving three or more crimes against a person. MCL 777.43(1)(b). For determining
the appropriate points under this variable, all crimes within a five-year period, including the
sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.
MCL 777.43(2)(a). However, it is improper to score conduct that was considered in the scoring
of offense variables 11 or 12. MCL 777.43(2)(c).
In this case, the evidence showed that defendant’s convictions arose out of a crime spree
involving two robberies and an assault with intent to rob during a 15-hour period. The trial court
properly scored 25 points for OV 13.
F. OV 19
The trial court scored ten points for OV 19, which is proper where the offender interfered
with or attempted to interfere with the administration of justice. MCL 777.49(c).
Contrary to what defendant argues, his conduct in fleeing the police and physically
resisting the police after the Admiral gas station robbery properly could be considered in the
scoring of that offense because it was part of one continuum of conduct. Cook, supra at 641.
Further, because law enforcement officers “are an integral component in the administration of
justice,” defendant’s conduct in physically resisting them constitutes the interference with the
administration of justice. People v Barbee, 470 Mich 283, 288; 681 NW2d 348 (2004).
Lastly, we find no merit to defendant’s claim that OV 19 is unconstitutionally void for
vagueness. The critical terms “interfere,” “administration,” and “justice” are neither unusual nor
esoteric, nor are they used in an uncommon or extraordinary context. Further, the commonly
accepted meanings of these terms can be readily ascertained by reference to a dictionary. A
person of ordinary intelligence would understand the type of conduct referred to in the statute,
and the statute provides fair notice of what conduct it proscribed. People v Hill, 269 Mich App
505, 524; 715 NW2d 301 (2006); People v Russell, 266 Mich App 307, 311; 703 NW2d 107
(2005); People v Sands, 261 Mich App 158, 161; 680 NW2d 500 (2004).
VII. Judicial Fact-Finding at Sentencing
We reject defendant’s claim that the trial court improperly engaged in judicial factfinding at sentencing, contrary to Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed
2d 403 (2004). In Blakely, the United States Supreme Court struck down as violative of the
Sixth Amendment a determinate sentencing scheme in which the sentencing judge was allowed
to increase the defendant’s maximum sentence on the basis of facts that were not reflected in the
jury’s verdict or admitted by the defendant. Our Supreme Court has determined that Blakely
does not apply to Michigan’s indeterminate sentencing scheme in which the maximum sentence
is set by statute and the trial court’s scoring of the guidelines affects only the defendant’s
minimum sentence. People v Drohan, 475 Mich 140; 715 NW2d 778 (2006); People v
Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). Although defendant contends that
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Drohan was wrongly decided, we are bound to follow that decision. People v Tierney, 266 Mich
App 687, 713; 703 NW2d 204 (2005).
VIII. Consecutive Sentencing
Defendant next argues that the trial court improperly ordered that his sentences be served
consecutive to a one-year jail term for a prior conviction. We disagree.
Concurrent sentencing is required, absent statutory authority for consecutive sentencing.
People v Sawyer, 410 Mich 531, 534; 302 NW2d 534 (1981). MCL 768.7b(2) provides, in
pertinent part:
Beginning January 1, 1992, if a person who has been charged with a
felony, pending the disposition of the charge, commits a subsequent offense that
is a felony, upon conviction of the subsequent offense or acceptance of a plea of
guilty, guilty but mentally ill, or nolo contendere to the subsequent offense, the
following shall apply:
(a) Unless the subsequent offense is a major controlled substance offense,
the sentences imposed for the prior charged offense and the subsequent offense
may run consecutively.
Although defendant correctly argues that an offense is not “pending” within the meaning
of this statute where a person has been sentenced to probation, People v Malone, 177 Mich App
393, 401; 442 NW2d 658 (1989), in this case defendant pleaded guilty to violating his probation
approximately a week before committing the instant offenses and was awaiting sentencing for
the prior offense. Thus, disposition of the prior offense was pending when defendant committed
the instant offenses and consecutive sentencing was authorized under MCL 768.7b(2).
IX. Ineffective Assistance of Counsel
We reject defendant’s claim that he was denied the effective assistance of counsel. First,
because defendant elected to represent himself at trial, he cannot raise a claim of ineffective
assistance of counsel based on any trial-related issues. People v Kevorkian, 248 Mich App 373,
419; 639 NW2d 291 (2001). Second, defendant does not raise an ineffective assistance of
counsel issue independent of the issues previously addressed in this opinion. Having found no
error with respect to any of defendant’s issues, either at trial or sentencing, there is no basis for
concluding that defense counsel was ineffective. People v Carbin, 463 Mich 590, 599-600; 623
NW2d 884 (2001); People v Torres (On Remand), 222 Mich App 411, 425; 564 NW2d 149
(1997).
Affirmed.
/s/ Deborah A. Servitto
/s/ David H. Sawyer
/s/ Christopher M. Murray
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