PEOPLE OF MI V DUQUIL DION LOVE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 2007
Plaintiff-Appellee,
v
No. 272631
Wayne Circuit Court
LC No. 06-004368-02
DUQUIL DION LOVE,
Defendant-Appellant.
Before: Jansen, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
A jury convicted defendant of assault with intent to rob while armed, MCL 750.89,
possession of a firearm by a felon (felon-in-possession), MCL 750.224f, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b.1 Pursuant to MCL
769.12, defendant was sentenced as a fourth habitual offender to concurrent prison terms of 20 to
35 years for the assault conviction and 5 to 35 years for the felon-in-possession conviction, and
to a consecutive prison term of two years for the felony-firearm conviction. Defendant appeals
as of right, and we affirm.
Defendant first argues that there was insufficient evidence to support his felon-inpossession and felony-firearm convictions. We disagree. We review de novo challenges to the
sufficiency of the evidence. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002).
We “view the evidence in a light most favorable to the prosecution and determine whether any
rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt.” People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999)
(citation omitted).
Defendant argues that the prosecutor did not prove beyond a reasonable doubt that either
he or codefendant Bright was armed with a firearm. Defendant claims that although a witness
identified Bright as possessing a black firearm, there was insufficient evidence that the object
was actually a firearm. Defendant also claims that there was no evidence regarding the firearm’s
caliber, the means of propulsion, or any specific characteristics of the barrel. Defendant notes
1
Codefendant Shamarrie Bright pleaded guilty to assault with intent to rob while armed, MCL
750.89, felon-in-possession, MCL 750.224f, and felony-firearm, MCL 750.227b.
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that the firearm was not fired and that the police never recovered it. Defendant also argues that
even if Bright was armed with a firearm, defendant never possessed it. Finally, defendant claims
that the facts do not suggest beyond a reasonable doubt that he aided and abetted Bright in the
commission of the firearm-related offenses. We disagree.
The elements of felon in possession of a firearm are: (1) the defendant possessed a
firearm, (2) the defendant was previously convicted of a felony, and (3) the defendant’s right to
possess a firearm has not yet been restored. MCL 750.224f; People v Perkins, 262 Mich App
267, 270-271; 686 NW2d 237 (2004). The elements of felony-firearm are: (1) the defendant
possessed a firearm, (2) during the commission of or attempt to commit a felony. People v
Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999); see also MCL 750.227b. The central
questions here are whether the prosecutor presented sufficient evidence that there was a firearm
used in the assault and whether the evidence sufficiently established that defendant aided and
abetted in the firearm’s use or possession.
Bright testified that he used a blue steel gun to assault the victim. Both the victim and
her granddaughter testified that the man who took their bag had a firearm. According to their
testimony, the man told them, “If you don’t want to get hurt, put your head down . . . .”
Additionally, both defendant and codefendant Bright had been involved in another, separate
shooting on the same day as the assault at issue in this case. We recognize that the firearm was
not recovered and was not fired during the assault. Nonetheless, viewing the evidence in a light
most favorable to the prosecution, we conclude that there was sufficient evidence to prove
beyond a reasonable doubt that codefendant Bright possessed a firearm.
Thus, the question becomes whether defendant aided and abetted codefendant Bright in
the possession of the firearm. Nothing in the aiding and abetting statute suggests that it should
apply differently to a possessory offense than to any other crime. People v Moore, 470 Mich 56,
67; 679 NW2d 41 (2004). To convict a defendant of aiding and abetting a crime, a prosecutor
must prove that: (1) the crime charged was committed by the defendant or some other person;
(2) the defendant performed acts or gave encouragement that assisted the commission of the
crime; and (3) the defendant intended the commission of the crime or had knowledge that the
principal intended its commission at the time that the defendant gave aid and encouragement. Id.
at 67-68. Accordingly, the test for aiding and abetting the offense of felon-in-possession is
whether a defendant, who is himself ineligible to carry a firearm, has procured, counseled, aided
or abetted another in the use or possession of a firearm. Similarly, the test for aiding and
abetting the offense of felony-firearm is whether a defendant has procured, counseled, aided or
abetted another in the use or possession of a firearm during the commission or attempted
commission of a felony. Id. at 70. The prosecutor must “do more than demonstrate that [the
defendant] aided the commission or attempted commission of the underlying” felony. Instead,
the prosecutor must demonstrate that the defendant specifically aided the commission of felonin-possession and felony-firearm. Id.
Turning to the facts of the present case, codefendant Bright testified that he attempted to
rob the victim with a blue steel gun, thereby committing the underlying felony and the felonyfirearm offense. Moreover, both Bright and defendant were previously convicted felons and
were ineligible to possess a firearm.
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The evidence also showed that defendant directly aided in the commission of the firearmrelated offenses. Defendant transported Bright and the firearm in a white vehicle for the purpose
of seeking out a potential victim. Defendant followed the victim to her home and waited at the
end of her driveway while Bright assaulted her with the firearm. Defendant then again aided
Bright by providing a quick getaway. Finally, the evidence showed that defendant had aided in
the planning and preparation of the crimes. We conclude that a rational trier of fact could have
concluded beyond a reasonable doubt that defendant aided and abetted codefendant Bright’s
commission of the offenses of felon-in-possession and felony-firearm.
Defendant next argues that the trial court erred when it failed to instruct the jury
regarding the use of prior inconsistent statements. This issue has been waived on appeal. A
claim of instructional error is waived when a defendant or his attorney affirmatively approves the
jury instructions in the trial court. People v Carter, 462 Mich 206, 214-216; 612 NW2d 144
(2000). In this case, defendant’s attorney submitted the instructions that the trial court used. In
addition, after the jury instructions were read, the trial court asked, “Is there anything else for the
record at this time, either counsel?” Defendant’s attorney responded, “No, Your Honor.” We
conclude that defense counsel affirmatively approved the jury instructions. Because this issue
has been waived on appeal, any error has been extinguished. Id.
Defendant also argues that he was prejudiced by the nine-month delay in the issuance of
a warrant following the charged offenses. Defendant argues that he could not have known that
the charges would be brought against him. He further argues that too much time had elapsed to
allow him to effectively pursue an alibi defense. Finally, defendant claims that the delay was
deliberately caused in an effort to prejudice him. We disagree.
Michigan applies a balancing test to determine if a prearrest delay requires
reversing a defendant’s conviction because the state may have an interest in
delaying a prosecution that conflicts with a defendant’s interest in a prompt
adjudication of the case. A defendant has the burden of coming forward with
evidence of prejudice resulting from the delay while the prosecutor has the burden
of persuading the reviewing court that the delay was not deliberate and did not
prejudice the defendant. [People v Cain, 238 Mich App 95, 108; 605 NW2d 28
(1999) (citations omitted).]
“A challenge to prearrest delay implicates constitutional due process rights.” People v
Crear, 242 Mich App 158, 166; 618 NW2d 91 (2000). A defendant must produce evidence of
actual and substantial prejudice. Id. “To be substantial, the prejudice to the defendant must
meaningfully impair his ability to defend against the charges against him in such a manner that
the outcome of the proceedings will likely be affected.” Id. A defendant must show more than
just generalized allegations. Id. “Alleged imperfections of a witness’ memory are generally
insufficient to establish actual and substantial prejudice.” Id. In Crear, the defendant claimed
that certain witnesses had difficulty recalling certain details, but he did not identify those details.
Similarly in this case, defendant merely sets forth generalized allegations. He does not identify
the names of potential alibi witnesses or the details of their expected testimony. In addition,
although defendant claims that the prosecutor deliberately delayed the charges, the prosecutor
explained that the delay simply resulted from the natural course of an ongoing investigation.
Defendant has not shown actual and substantial prejudice sufficient to warrant relief on this
issue. No due process violation occurred.
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Defendant lastly argues that the 180-day rule was violated because he was detained in the
Wayne County jail for nine months before he was arraigned for the present offenses. The
purpose of the statutory 180-day rule is to dispose of untried charges against prison inmates so
that sentences may run concurrently. MCL 780.131; People v McLaughlin, 258 Mich App 635,
643; 672 NW2d 860 (2003). Thus, the statute applies only to those defendants who, at the time
of trial, are serving time in a state penal institution. It does not apply to individuals awaiting trial
in a county jail. Id. Defendant is entitled to no relief under MCL 780.131 because he was
detained in the Wayne County jail.
Affirmed.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
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