PEOPLE OF MI V RICHARD JAMES FARRELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 26, 2008
Plaintiff-Appellee,
v
No. 273907
Oakland Circuit Court
LC No. 2006-206284-FH
RICHARD JAMES FARRELL,
Defendant-Appellant.
Before: Whitbeck, C.J., and White and Zahra, JJ.
PER CURIAM.
A jury convicted defendant of manslaughter with a motor vehicle, MCL 750.321. The
trial court sentenced him, as a second habitual offender, MCL 769.10, to 7 to 22 ½ years’
imprisonment. Defendant appeals as of right. We affirm defendant’s conviction, but remand for
re-sentencing.
I. Basic Facts and Procedure
At around 6:45 a.m. on December 7, 2005, defendant was driving south in a full-size
pickup truck on Evergreen Road in Southfield. For about 25 years, he had regularly driven this
route to work. On that portion of the road there are two southbound lanes, a center turn lane, and
one northbound lane. Also, there are a number of residential homes, and defendant was aware
that school buses frequent the area to pick up children. He was driving in the eastern southbound
lane, traveling at a distance behind a school bus.
Defendant had noticed a school bus and recalled that it had already made one stop. The
school bus was in the western southbound lane, with its yellow warning lights activated,
indicating that it would soon be stopping. Defendant claimed that the car in front of him stopped
abruptly, and he was unable to stop. He maintained that, in order to avoid colliding with the car
in front of him, he moved into the center turn lane. At this time, Tiara Fisher, a 15-year-old girl,
was walking in the center turn lane while crossing the street to catch the bus. Defendant struck
and killed Fisher.
Although the posted speed limit was 35 miles an hour, the crash data recorder or “black
box” from defendant’s truck revealed that he was driving 58 miles an hour and accelerating
when he struck Fisher. Defendant, however, claimed that he was only driving at a rate of 40
miles an hour. Jurien Phillips, Carolyn Cleveland, and Antonio Record, eyewitnesses to the
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collision, agreed that defendant was driving at a speed of 50 miles an hour or more. The black
box also revealed that defendant did not apply his brakes before the impact. Cleveland, Record,
and Everett Cole, another eyewitness, agreed that defendant had not applied the brakes before
striking Fisher, and defendant admitted that he had not braked. According to Timothy Brown, an
accident reconstruction specialist with the Michigan State Police, Fisher’s body traveled 138 feet
after the impact.
A jury convicted defendant of manslaughter with a motor vehicle. On March 9, 2007,
defendant moved for a new trial, Ginther1 hearing, and resentencing. In relevant part, defendant
asserted that offense variable (OV) 6 and OV 19 were incorrectly scored. Defendant also
requested a correction of the judgment of sentence because it stated that he was convicted as a
third habitual offender rather than a second habitual offender. The prosecution responded,
contending that OV 6 and OV 19 were correctly scored. The prosecution also asserted that the
amended judgment of sentence correctly reflected defendant’s status as a second habitual
offender. After a hearing, the trial court denied his motion for resentencing.
II. Scoring of Offense Variables
Defendant argues that the trial court abused its discretion in scoring OV 6 and OV 19.
We disagree. We review a trial court’s scoring decision for an abuse of discretion to determine
whether the evidence adequately supports a particular score. People v Hornsby, 251 Mich App
462, 468; 650 NW2d 700 (2002). A trial court’s scoring decision will be upheld if there is any
evidence in the record to support it. People v Houston, 261 Mich App 463, 471; 683 NW2d 192
(2004).
A. OV 6
The trial court assigned 25 points for OV 6, which reflects that defendant “had
unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of
death or great bodily harm knowing that death or great bodily harm was the probable result.”
MCL 777.36(1)(b). Defendant challenges this score, arguing that he acted without malice. This
argument is misplaced. Malice does not require a specific intent to harm or kill. As our
Supreme Court has stated with respect to the mens rea for second-degree murder, “malice may
be established even absent an actual intent to cause a particular result if there is wanton and
wilful disregard of the likelihood that the natural tendency of a defendant’s behavior is to cause
death or great bodily harm.” People v Goecke, 457 Mich 442, 466; 579 NW2d 868 (1998).
Further, MCL 777.36(1)(b) specifically states that 25 points are appropriate if the defendant’s
conduct “created a very high risk of death or great bodily harm knowing that death or great
bodily harm was the probable result.”
Defendant was driving 23 miles an hour above the speed limit in an area where many
residences were located, he was aware that school buses frequently stopped on that portion of the
road, and he knew the bus had already stopped once. Defendant saw the yellow warning lights
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People v Ginther, 390 Mich 436, 441, 442; 212 NW2d 922 (1973).
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on the school bus and failed to slow down, even though he knew that the warning lights meant
that the bus was about to stop and children were in the immediate vicinity. Defendant moved
into the center turn lane, which was prohibited, and accelerated his vehicle, exhibiting an intent
to pass another vehicle that had stopped for the school bus. Defendant never applied his brakes.
Therefore, there was evidence to support the trial court’s conclusion that defendant “created a
very high risk of death or great bodily harm knowing that death or great bodily harm was the
probable result.” MCL 777.36(1)(b). Accordingly, the trial court did not abuse its discretion in
assessing 25 points for this variable.
B. OV 19
Defendant received ten points for OV 19, which reflects that he “otherwise interfered
with or attempted to interfere with the administration of justice.” MCL 777.49(c). Defendant
challenges this score, asserting that he cooperated with the police in every way and he merely
described himself to the police in a positive light, thereby minimizing, rather than denying, his
culpability. Defendant told one police officer that he estimated his speed at 40 miles an hour. In
his December 7, 2005, statement to the police, defendant claimed that he had applied his brakes
and was insured at the time of the collision. However, the black box and eyewitness testimony
directly contradict defendant’s statements that he was only traveling 40 miles an hour and had
applied the brakes. Further, defendant did not have insurance because he could not afford it.
The phrase “interfered with or attempted to interfere with the administration of justice,”
as used in OV 19, is not limited to conduct performed during the actual judicial process; rather, it
includes providing false information to police who are investigating a crime. People v Barbee,
470 Mich 283, 287-288; 681 NW2d 348 (2004); People v Endres (On Remand), 269 Mich App
414, 421; 711 NW2d 398 (2006). Here, defendant provided three false statements to police.
Therefore, the trial court did not abuse its discretion in assigning ten points for OV 19.
III. Upward Departure
Defendant argues that the trial court abused its discretion in sentencing him to 7 to 22½
years’ imprisonment for his manslaughter with a motor vehicle conviction, which constitutes a
departure from the sentencing guidelines minimum sentence range of 29 to 71 months. Whether
a particular sentencing factor exists is a factual determination for the sentencing court to
determine, and it will be reviewed for clear error. People v Fields, 448 Mich 58, 77; 528 NW2d
176 (1995). Whether a particular sentencing factor is objective and verifiable will be reviewed
de novo. Id. at 77-78. Whether the objective and verifiable factors constitute substantial and
compelling reasons to depart from the statutory minimum sentence will be reviewed for an abuse
of discretion. Id. at 78. An abuse of discretion occurs when the sentencing court chooses an
outcome that falls outside the permissible principled range of outcomes. People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003).
A trial court must impose a minimum sentence within the sentencing guidelines range
unless there are substantial and compelling reasons for a departure and the court states those
reasons on the record. People v Lowery, 258 Mich App 167, 169-170; 673 NW2d 107 (2003);
MCL 769.34(3). To be “substantial and compelling,” a reason must be both objective and
verifiable. Babcock, supra at 257-258. Additionally, it must be a reason that “keenly” or
“irresistibly” grabs a court’s attention and is of “considerable worth” in deciding the length of a
sentence. Id. at 258. A trial court may not base its departure on an offense characteristic that
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was already taken into account in calculating the appropriate sentence range unless it finds that
the characteristic has been given inadequate or disproportionate weight. MCL 769.34(3)(b).
The trial court articulated the following reasons for its departure: defendant’s speed, his
failure to brake, his familiarity with the route and his awareness of the presence of children and
school buses, and the number of persons, including children, who witnessed Fisher’s death.
After the trial court identified these reasons, it stated the sentence it was imposing, and discussed
restitution, the crime victim’s rights service fee, and the DNA testing requirement. The
prosecutor asked a question to verify the sentence and another to verify restitution, and the
following discussion occurred:
TRIAL COURT:
And I believe I’ve articulated on the record the necessary
basis upon which I’ve gone above the guidelines.
PROSECUTOR:
Does that include the Defendant’s driving record—
TRIAL COURT:
Yes.
PROSECUTOR:
—and criminal past? Thank you.
Defendant claims that the trial court improperly relied on his criminal record and driving
record in exceeding the minimum sentencing guidelines range. However, defendant’s prior
record variable score was zero, which demonstrates that his criminal record was not taken into
account in the scoring of his prior record variables, MCL 777.50. Further, the trial court had
already listed its reasons for the departure and imposed the sentence before the prosecutor asked
these questions, and it interrupted and answered the prosecutor’s question before he asked about
defendant’s criminal past. Moreover, the trial court had previously stated that it would not
consider defendant’s criminal record because it was “a long time ago” and he had rehabilitated
himself and “recovered from that.” Therefore, it is clear that the trial court did not actually base
its decision to depart on defendant’s criminal record.
To the extent that the trial court may have based its departure in part on defendant’s
driving record, we are not persuaded by defendant’s argument that it was taken into account in
the scoring of OV 6. Defendant’s score for OV 6 reflects that he “had unpremeditated intent to
kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm
knowing that death or great bodily harm was the probable result.” As discussed above, OV 6
took into consideration the circumstances of the collision that together provided an indication of
defendant’s creation of a very high risk of death or great bodily harm. OV 6 makes no mention
of a defendant’s past conduct, and there is no indication that defendant’s driving record was
contemplated in scoring OV 6. According to the presentence investigation report, defendant had
been involved in nine accidents, had six speeding tickets, and had five or six other technical
violations. Defendant’s driving record “keenly” or “irresistibly” grabs our attention and is of
“considerable worth” in deciding the length of a sentence because it is so extensive. Babcock,
supra at 258. A driving record is external to the minds of judges and capable of being
confirmed. Accordingly, to the extent that the trial court may have relied on defendant’s driving
record, it was objective and verifiable and was not taken into account in scoring the variables.
MCL 769.34(3)(b); People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003).
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As mentioned, the trial court stated that the number of persons, including children, who
witnessed Fisher’s death constituted a reason to upwardly depart from the sentencing guidelines
range. Defendant asserts that the trial court erred because OV 5 and OV 9 already took this fact
into consideration. Defendant was assessed 15 points for OV 5, which indicates that the victim’s
family members sustained a psychological injury. MCL 777.35(1)(a). Defendant’s argument
regarding OV 5 is misplaced because the trial court never stated that it was relying on Fisher’s
parents witnessing her death; rather, it stated that it was basing the departure in part on the
number of persons, including Fisher’s friends who were children, who watched her die. The trial
court assigned defendant ten points for OV 9, which reflects the fact that between two and nine
persons were placed in danger of injury or loss of life as a victim. MCL 777.39(1)(c), (2)(a).
Defendant’s argument regarding OV 9 is similarly misplaced. This variable does not take into
account the number of witnesses to Fisher’s death and that so many of the witnesses were
children; rather, it takes into account the number of other people who were placed in danger.
Defendant argues that the trial court improperly relied on his speed, failure to brake, and
familiarity with the route because these factors supported the scoring of OV 6. MCL
769.34(3)(b) provides:
The court shall not base a departure on an offense characteristic or offender
characteristic already taken into account in determining the appropriate sentence
range unless the court finds from the facts contained in the court record, including
the presentence investigation report, that the characteristic has been given
inadequate or disproportionate weight.
As mentioned, OV 6 reflects that defendant “had unpremeditated intent to kill, the intent
to do great bodily harm, or created a very high risk of death or great bodily harm knowing that
death or great bodily harm was the probable result.” MCL 777.36(1)(b). Here, defendant’s
speed, failure to brake, and familiarity with the route plainly implicate whether defendant
“created a very high risk of death or great bodily harm knowing that death or great bodily harm
was the probable result.” The trial court did not indicate that these aspects of defendant’s
conduct had been given inadequate or disproportionate weight. Indeed, at the motion for re
sentencing, in response to defendant’s challenge of OV 6, the trial court justified its scoring of
OV 6 relying on many of the same facts that justified its upward departure. Because it is not
evident that it would have departed to the same degree solely on the basis of the other reasons,
we must remand the case to the trial court for resentencing or rearticulation of the reasons for the
departure. Babcock, supra at 271.
We affirm defendant’s conviction, but remand for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Helene N. White
/s/ Brian K. Zahra
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