PEOPLE OF MI V TIMOTHY SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 12, 2008
Plaintiff-Appellee,
v
No. 277903
Oakland Circuit Court
LC No. 2006-208650-FC
TIMOTHY SMITH,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and Jansen, JJ.
PER CURIAM.
A jury convicted defendant of voluntary manslaughter, MCL 750.321, and the trial court
sentenced him to 10 to 15 years’ imprisonment. He appeals as of right. We affirm.
I. Basic Facts
Defendant was convicted of killing his 34-year-old live-in girlfriend in their Pontiac
apartment on March 28, 2006. Defendant and the victim had dated since 1999, and had two
children together, ages five and six at the time of trial. The victim also had a daughter, QE, from
a prior marriage, who was age 13 at the time of trial. Defendant and the victim had a tumultuous
and volatile relationship, with several incidents of domestic violence. Throughout the years, the
victim had broken up with defendant on occasion, but would reconcile with him.
On the day before the victim’s death, the victim and the children met defendant at his
nephew’s barbeque gathering in Pontiac. QE testified that defendant and the victim eventually
began arguing, and defendant called the victim a derogatory name. At about 9:00 p.m., the
family left the barbeque, returned to their apartment, and defendant and the victim resumed
arguing. According to QE, defendant called the victim derogatory names and threatened to crack
her head open and pop her neck, a threat that QE had overheard before. One of the victim’s
friends testified that she called the victim at about 9:00 p.m. and could hear defendant yelling
angrily in the background. QE indicated that at about 9:30 p.m., the victim told the children to
go to bed. At that time, the victim was lying on the bed wearing her work clothing, and
defendant was sitting on the edge of the bed watching television with a liquor bottle nearby. At
about 5:00 a.m., QE was awakened by a noise, went in the victim’s bedroom, and saw the victim
lying facedown on the bed, nude and unresponsive. Defendant was leaning over the victim,
crying and screaming. QE directed her two younger siblings to leave the room and called 911.
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Upon arrival, the Pontiac police and EMS observed that the victim had a dark ligature
mark around her neck, and was cold and stiff, which indicated that she had been dead for several
hours. The officers smelled alcohol on defendant, and noted that he was sobbing, yelling, and
acting oddly. A cut or ripped portion of a telephone cord and coaxial cable were found near the
bed. A medical examiner concluded that the victim’s death was a homicide, caused by ligature
strangulation. There was bruising around the victim’s neck that formed a pattern of a ligature
mark, and the ligature mark was consistent with the seized telephone cord being used to apply
the force. QE testified that the phone cord was intact before the victim’s death. Additional
bruising on the victim’s neck was caused by a separate application of force with a larger object,
e.g., someone pressing one or both of their arms against her throat or holding her in a chokehold
or headlock. In addition, there was bruising on the victim’s lower lip, upper arms, shoulders, and
chest, consistent with being hit, grabbed, struggling, and significant force being applied. The
medical examiner opined that multiple injuries occurred before the ligature was applied and
estimated the time of death in the early morning hours, possibly around midnight. Defendant
was arrested for an outstanding domestic assault warrant, and later charged with first-degree
premeditated murder.
The defense denied any wrongdoing and claimed that when defendant left the house
during the early morning hours, he was in a “good mood” and later returned to find the victim.1
Defendant’s nephew testified that on March 27, 2006, defendant and the victim were both in a
good mood while at the barbeque at his house, and neither appeared angry. On crossexamination, he admitted that he did not see the victim and defendant for most of the evening,
and did not see them leave. Defendant’s brother testified that on March 28, 2006, from 1:30 to
2:30 a.m., defendant was at his home, which is about a five or ten-minute drive, and defendant
was in a good mood and did not appear angry, upset, or crying. On cross-examination,
defendant’s brother admitted that he and defendant used crack cocaine that evening. He also
admitted that defendant has a temper, was jealous of the victim, and that defendant and the
victim argued frequently.
II. Evidentiary Issues
Defendant argues that he is entitled to a new trial because the trial court erred in
admitting evidence of “other acts” under MRE 404(b), and the victim’s out-of-court statements
under MRE 803(3). We disagree.
A. Background
Before trial, the prosecution filed notices and moved to admit evidence of defendant’s
acts of domestic violence against the victim, QE, and defendant’s former girlfriend under MCL
768.27b or MRE 404(b). The prosecution sought to admit the evidence under MRE 404(b) as
proof of defendant’s common system, scheme, or plan for assaulting and controlling the females
1
Police testimony indicated that there were no signs of forced entry, nothing was taken from the
house, the victim was still wearing her jewelry, and there were no indications of a break-in or
robbery. The medical examiner testified that there was no sign of sexual assault. A neighbor
testified that there were no strangers in the area.
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in his household. The prosecution also moved to admit evidence of the victim’s prior statements
made to others expressing her fear of defendant, relationship discord, and her contemplation of
leaving him and moving out of state under MRE 803(3) and People v Fisher, 449 Mich 441, 453;
537 NW2d 577 (1995). Defendant did not oppose the motions and the trial court summarily
granted them. At trial, defendant objected to the acts of domestic violence involving his former
girlfriend, and to some of the victim’s prior statements that she feared defendant and needed to
leave town because of him.
B. Standard of Review
Because defendant failed to object to the evidence of the prior acts of domestic violence
against the victim and QE, and most of the victim’s statements, we review those unpreserved
issues for plain error affecting substantial rights. People v Carines, 460 Mich 750, 752-753,
763-764; 597 NW2d 130 (1999). With regard to the evidence of the prior acts against
defendant’s former girlfriend and the challenged statements made by the victim, we review the
trial court’s decision to admit the evidence for an abuse of discretion. People v McDaniel, 469
Mich 409, 412; 670 NW2d 659 (2003). If there is an underlying question of law, such as
whether admissibility is precluded by a rule of evidence, we review that question of law de novo.
Id.
C. Analysis
1. Other Acts Against the Victim
At trial, the victim’s sister, Sharmon Woods, testified that in the summer of 1999, the
victim telephoned and asked her to come over. Woods could hear defendant cursing in the
background and calling the victim derogatory names. When Woods and her husband arrived
within five minutes, defendant had his hands around the victim’s throat and the victim was
struggling. Woods intervened and hit defendant to cause him to release the victim. Defendant
unsuccessfully reached for a baseball bat. Woods’s husband attempted to calm defendant, and
defendant left. QE testified that in 1999 or 2000, defendant grabbed the victim’s coat around her
neck and pushed her against the wall, causing the victim to choke. Defendant told the victim that
he was going to crack her head or “pop her neck.” QE testified that in 2001, while the victim
was pregnant with defendant’s youngest child, defendant and the victim were arguing and
defendant swung a baseball bat at the victim, attempting to hit her, as the victim ran for safety.
QE observed defendant put his hands around the victim’s neck about five or six times. The
victim’s niece observed an incident when defendant tried to hit the victim with a baseball bat
after she had left defendant and returned to obtain her clothes. The victim’s friend testified that
in early 2006, defendant broke the victim’s finger by bending it back while they were arguing.
The evidence of domestic violence against the victim was admissible under MCL
768.27b.2 MCL 768.27b(1) provides, in relevant part, that “in a criminal action in which the
2
Defendant contends that the evidence was inadmissible under MRE 404(b), and that any
probative value was substantially outweighed by the danger of unfair prejudice. Defendant does
not, however, address admissibility under MCL 768.27b.
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defendant is accused of an offense involving domestic violence, evidence of the defendant’s
commission of other acts of domestic violence is admissible for any purpose for which it is
relevant.” The definition of “domestic violence” includes acts “[c]ausing or attempting to cause
physical or mental harm to a family or household member” and “[p]lacing a family or household
member in fear of physical or mental harm.” MCL 768.27b(5)(a)(i) and (ii). “Family or
household member” includes “[a]n individual with whom the person resides or has resided,”
“[a]n individual with whom the person has or has had a child in common,” and “[a]n individual
with whom the person has or has had a dating relationship.” MCL 768.27b(5)(b)(ii)-(iv). All of
the assaults at issue here involved acts of domestic violence against a family member and,
therefore, were admissible under MCL 768.27b(1) to the extent they were relevant, and the
probative of the evidence was not substantially outweighed by the danger of unfair prejudice
under MRE 403.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” MRE 401. The relevancy “threshold is minimal: ‘any’ tendency is
sufficient probative force.” People v Crawford, 458 Mich 376, 390; 582 NW2d 785 (1998). The
evidence assisted the jury in weighing and assessing credibility, particularly where defendant
denied any wrongdoing and implied that a stranger entered the house and attacked the victim
while he was at his brother’s house. Further, defendant was charged with first-degree
premeditated murder, MCL 750.316(1)(a), and given his defense, the evidence was relevant to
show motive, intent, and premeditation.3 We therefore conclude that the evidence was relevant
for purposes of MCL 768.27b(1).
Furthermore, the evidence was not inadmissible simply because the nature of the
evidence is prejudicial, and defendant has not demonstrated that he was unfairly prejudiced by
the evidence. See MRE 403. While the acts described were serious and incriminating, such
characteristics are inherent in the underlying crimes for which defendant was accused. The
danger that MRE 403 seeks to avoid is that of unfair prejudice, because, presumably, all
evidence presented by the prosecution is prejudicial to the defendant to some degree. People v
Pickens, 446 Mich 298, 336; 521 NW2d 797 (1994). The probative value of the evidence was
not substantially outweighed by its prejudicial effect.
2. Acts Against QE
QE testified that defendant inappropriately touched her on two occasions that made her
feel uncomfortable. Defendant rubbed her left breast with his hand for a “medium” amount of
time, and touched her “back part” with his hand. QE told the victim about the incidents, and the
victim said that they were going to move when she received her “Section 8.”
3
The elements of first-degree premeditated murder are that the defendant killed the victim and
that the killing was “willful, deliberate, and premeditated.” MCL 750.316(1)(a); People v
Bowman, 254 Mich App 142, 151; 656 NW2d 835 (2002). Premeditation may be inferred from
all the facts and circumstances, including the relationship between the parties, the circumstances
of the killing itself, and a defendant’s conduct before the murder. People v Anderson, 209 Mich
App 527, 537; 531 NW2d 780 (1995).
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Defendant’s acts against QE constituted an act of domestic violence on a family member
for purposes of MCL 768.27b(1). “Domestic violence” means “[e]ngaging in activity toward a
family or household member that would cause a reasonable person to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” MCL 768.27b(5)(a)(iv). The evidence was
probative of motive and premeditation because QE had told the victim about the incidents, and
the victim responded by indicating that she intended to move away from defendant. While the
probative value of defendant’s act of touching QE, compared with the prejudicial effect of the
evidence, presents a closer question, it does not rise to the level of a “clear or obvious” error,
which is necessary to establish a plain error under Carines, supra at 763.
Furthermore, this evidence did not affect defendant’s substantial rights considering that
the remaining evidence against defendant was strong. Defendant and the victim had a volatile
relationship leading before the victim’s death, QE and officers testified that defendant was
standing over the victim’s lifeless body after the incident, the victim died by ligature
strangulation, a cut phone cord was recovered from defendant and the victim’s bedroom, and
there was no evidence that an intruder had entered the house. In short, absent the testimony in
question, the possibility of a different result would have been remote.
3. Other Acts against a Former Girlfriend
Monique Shelton testified that she and defendant dated and, at times, lived together.
Shelton testified that in 1995, after she received her paycheck, defendant retrieved her from her
father’s house, carried her out of the house, took her back to their apartment, threw her on the
bed, choked her to the point that she could not breathe, punched her, and took her money. In
1996, while Shelton was pregnant, Shelton was packing her belongings to leave when defendant
brandished a shotgun and threatened to shoot her, and then pushed her down the stairs. In 1997,
when Shelton was residing with a relative, defendant called and requested a meeting. Shelton
agreed, but did not meet defendant. Later, defendant was driving his car and saw Shelton driving
her car. Defendant raised his hand to form the shape of a gun. Defendant followed Shelton to
his brother’s house and after his brother told defendant that Shelton was not there, defendant
entered through a window. Once inside, defendant grabbed Shelton around the neck, lifted her
from the ground by the neck, and squeezed her neck. Defendant threw her against the wall,
choked her, and punched her in the face multiple times with one hand while leaving the other
around her neck. Defendant’s brother intervened, but defendant was able to grab Shelton and
choke her again. When defendant and his brother began fighting, Shelton left the apartment.
The trial court did not abuse its discretion in admitting the 1996 and 1997 acts against
Shelton under MCL 768.27b. The acts constituted domestic violence against a family member.
Further, the evidence was relevant to show defendant’s controlling behavior against his
girlfriends, to show how he reacted when a girlfriend left or threatened to leave him, and to show
defendant’s methodology for assaulting his girlfriends, which was similar to the victim’s manner
of death in this case. Additionally, the probative value of this evidence was not substantially
outweighed by its prejudicial effect. With regard to the 1995 act, MCL 768.27b(4) provides that
“[e]vidence of an act occurring more than 10 years before the charged offense is inadmissible
under this section, unless the court determines that admitting this evidence is in the interest of
justice.” Here, the trial court did not make a finding on the record that the act was admissible in
the interest of justice. However, MCL 768.27b “does not limit or preclude the admission or
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consideration of evidence under any other statute, rule of evidence, or case law,” MCL
768.27b(3), and plaintiff also relied on MRE 404(b) as a basis for admitting the evidence.
MRE 404(b) prohibits “evidence of other crimes, wrongs, or acts” to prove a defendant’s
character or propensity to commit the charged crime. MRE 404(b)(1); see also People v Knox,
469 Mich 502, 509; 674 NW2d 366 (2004). But other acts evidence is admissible under MRE
404(b) if it is (1) offered for a proper purpose, i.e., one other than to prove the defendant’s
character or propensity to commit the crime, (2) relevant to an issue or fact of consequence at
trial, and (3) sufficiently probative to outweigh the danger of unfair prejudice, pursuant to MRE
403. People v Starr, 457 Mich 490, 496-497; 577 NW2d 673 (1998), reh den 459 Mich 1203
(1998); People v VanderVliet, 444 Mich 52, 55, 63-64, 74-75; 508 NW2d 114 (1993), amended
445 Mich 1205 (1994). In application, the admissibility of evidence under MRE 404(b)
necessarily hinges on the relationship of the elements of the charge, the theories of admissibility,
and the defenses asserted. Id. at 75.
The prosecution offered the evidence to prove a common scheme or plan in doing an act,
and to prove defendant’s intent, which are proper purposes under MRE 404(b) (See prosecutor’s
notice.) As our Supreme Court explained in People v Sabin (After Remand), 463 Mich 43, 63;
614 NW2d 888 (2000), “evidence of similar misconduct is logically relevant to show that the
charged act occurred where the uncharged misconduct and the charged offense are sufficiently
similar to support an inference that they are manifestations of a common plan, scheme, or
system.” See also People v Hine, 467 Mich 242, 251; 650 NW2d 659 (2002). The Sabin Court
noted that “[g]eneral similarity between the charged and uncharged acts does not, however, by
itself, establish a plan, scheme, or system used to commit the acts.” Sabin, supra at 64. “For
other acts evidence to be admissible there must be such a concurrence of common features that
the uncharged and charged acts are naturally explained as individual manifestations of a general
plan.” Hine, supra at 251; see also Sabin, supra at 64-65. But “distinctive and unusual features
are not required to establish the existence of a common design or plan. The evidence of
uncharged acts needs only to support the inference that the defendant employed the common
plan in committing the charged offense.” Hine, supra at 253, citing Sabin, supra at 65-66.
The evidence was not offered to show that defendant had a bad character. Rather, it was
probative of defendant’s common scheme, plan, or system of assaulting his girlfriends. In both
the prior act and the charged crime, there was a concurrence of common features that defendant
utilized against the women, including strangulation. The commonality of the circumstances of
the other acts evidence and the charged crime are sufficiently similar that the jury could infer that
defendant had a scheme, plan, or system in doing an act. Furthermore, the probative value of the
evidence was not substantially outweighed by its prejudicial effect. MRE 403.
4. The Victim’s Statements
At trial, defendant challenged as inadmissible hearsay testimony that the victim had
stated that she was afraid of defendant and needed to move out of town because she believed that
defendant was going to kill her and “messing with [her] baby.”
Hearsay, which is a statement other than one made by the declarant while testifying at the
trial or hearing and offered to prove the truth of the matter asserted, is inadmissible at trial unless
there is a specific exception allowing its introduction. See MRE 801, MRE 802, and People v
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Ivers, 459 Mich 320, 331; 587 NW2d 10 (1998). Under MRE 803(3), a statement of a
declarant’s “then existing state of mind, emotion, sensation, or physical condition” is not
excluded by the hearsay rule. People v Coy (After Remand), 258 Mich App 1, 14; 669 NW2d
831 (2003). “Statements of mental, emotional, and physical condition, offered to prove the truth
of the statements, have generally been recognized as an exception to the hearsay rule because
special reliability is provided by the spontaneous quality of the declarations when the declaration
describes a condition presently existing at the time of the statement.” People v Moorer, 262
Mich App 64, 68-69; 683 NW2d 736 (2004). Statements made by a declarant can also be
admitted under MRE 803(3) if they relate to a then existing plan or intent. Fisher, supra at 450.
The victim’s statements to witnesses that she feared defendant and needed to leave town
were admissible under MRE 803(3), as statements of the victim’s then existing state of mind and
intent. Because defendant denied killing the victim, her fear and plan to leave him were relevant
to show motive, intent, and premeditation. Fisher, supra at 450-451, 453. Moreover, the
statements were not admitted for the truth of the matter asserted, i.e., that the defendant was
actually going to kill the victim, but to demonstrate relationship discord, which is highly
probative to show motive and intent. See id.; see also People v Rotar, 137 Mich App 540, 548549; 357 NW2d 885 (1984). Further, although the statements were not favorable to defendant,
he has not shown that their admission was unfairly prejudicial. The probative value of the
statements was not substantially outweighed by the danger of unfair prejudice. MRE 403.
Consequently, the trial court did not err in admitting the victim’s statements.
III. Upward Departure
Defendant also contends that the trial court erred when it departed from the sentencing
guidelines recommended sentence range of 43 to 86 months and sentenced him to 10 to 15 years’
imprisonment for his voluntary manslaughter conviction. We disagree.
Under the sentencing guidelines statute, the trial court must ordinarily impose a minimum
sentence within the calculated guidelines range. MCL 769.34(2) and (3); People v Babcock, 469
Mich 247, 272; 666 NW2d 231 (2003). A court may depart from the appropriate sentence range
only if it “has a substantial and compelling reason for th[e] departure and states on the record the
reasons for departure.” MCL 769.34(3). A court may not depart from the guidelines range
based on an offense or offender characteristic already considered in determining the guidelines
range unless the court finds, based on facts in the court record, that the characteristic was given
inadequate or disproportionate weight. MCL 769.34(3)(b).
Our Supreme Court has reiterated that the phrase “substantial and compelling” constitutes
strong language intended only to apply in “exceptional cases.” Babcock, supra at 257-258
(citation omitted). The reasons justifying departure should “keenly and irresistibly grab” the
court’s attention and be recognized as having “considerable worth” in determining the length of a
sentence. Id. Only objective and verifiable factors may be used to assess whether there are
substantial and compelling reasons to deviate from the minimum sentence range under the
guidelines. Id. at 257, 273. This means that the facts considered must be actions or occurrences
that are external to the minds of the judge, defendant, and others involved in making the decision
and must be capable of being confirmed. People v Hill, 192 Mich App 102, 112; 480 NW2d 913
(1991).
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Whether a factor exists is reviewed for clear error on appeal. Babcock, supra at 265, 273.
Whether a factor is objective and verifiable is subject to review de novo. Id. The trial court’s
determination that objective and verifiable factors constitute a substantial and compelling reason
to depart from the minimum sentence range is reviewed for an abuse of discretion. Id. at 265,
274; see also People v Armstrong, 247 Mich App 423, 424; 636 NW2d 785 (2001). “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the permissible
principled range of outcomes.” Babcock, supra at 274.
In this case, the trial court stated its reasons for departure on the record:
This case warrants an upward departure from sentencing guidelines.
Factors that are not taken into consideration and consider - considering the
guideline range or are not given adequate weight. These Factors in this Court’s
view provide substantial and compelling reasons to depart upward[] from the
guidelines.
First, there are multiple prior assaults on girlfriends. In 1999, you
strangled [the victim] on the front lawn of your residence. In 2000, you again
strangled her and prevented her from leaving the residence. In 2001, you swung a
baseball bat at [the victim] while she was pregnant. In 2006, you broke her finger
by bending it backwards. You verbally and physically, not only victimized but
terrorized [the victim] for years. You are a menace to society. You are a threat to
any woman you have a relationship with.
The Court heard testimony from Monique Sheldon, who articulated
several incidents where you assaulted her. In 1997 at your brother’s residence. In
1996 again. She also referenced and incident where you threatened her with a
firearm.
After killing [the victim], you made no attempt to treat her, instead you
chose to go to your brother’s apartment and smoke crack cocaine. You left three
children in the home with a – with the deceased victim.
[Defendant], I am convinced that you threaten any woman you have a
relationship with. For that reason and the others I just articulated, it is the
sentence of this Court that you serve ten to 15 years with the Department of
Corrections with credit for 342 days.
On a departure evaluation form, the trial court listed the following reasons for departure:
1.
Verbally and physically victimizing [the victim] for several years
2.
Multiple prior assaults on his girlfriend Monique Sheldon
3.
using drugs
4
Wanton and Willful leaving of the victim to die by going to and
Leaving three children with the dead corpse of their mother
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5.
Prior assaultive convictions
6.
Overwhelming evidence he is and will continue to be a continuing
threat to other people, especially any woman he has a relationship with.
The trial court relied on factors that are objective and verifiable, and the court did not
abuse its discretion by finding that these factors amounted to substantial and compelling reasons
to depart from the sentencing guidelines range. Defendant argues that the trial court
impermissibly relied on factors already taken into account in the scoring of the guidelines.
Defendant correctly notes that he was scored 15 points for offense variable (OV) 5
(psychological injury to a member of the victim’s family), MCL 777.35(1)(a), 25 points for OV
6 (intent to kill or injure), and ten points for prior record variable (PRV) 5 (prior misdemeanor
convictions), MCL 777.55(1)(c). Nonetheless, the trial court did not err by finding that the
offense and offender characteristics that are unique to this voluntary manslaughter were not
adequately reflected in the guidelines. Although the scoring for PRV 5 reflected that defendant
had three or four prior misdemeanor convictions, as noted by the trial court, the guidelines did
not adequately account for the many additional assaults committed by defendant over the years,
the brutal nature and enduring and devastating consequences of this offense, or that the
defendant committed this crime against his children’s mother and callously left the victim’s
corpse at home with their young children while he left to use drugs. Further, the scoring of PRV
5 did not reflect that several of defendant’s prior convictions involved domestic violence, which
was at issue in this case.
Defendant challenges the trial court’s conclusion that he is a threat to the public,
particularly woman, as a basis for departure. Indeed, a trial court’s general conclusion that a
defendant is a danger is not, itself, an objective and verifiable factor. See People v Solmonson,
261 Mich App 657, 670; 683 NW2d 761 (2004). Here, however, it is apparent that the trial court
did not simply conclude in general that defendant was a danger to society. Rather, the trial court
based this finding on the specific objective circumstances surrounding defendant’s past history of
domestic violence against his girlfriends and the killing of the victim in this case, and concluded
that those circumstances were not adequately accounted for in the scoring of the guidelines,
thereby justifying an upward departure. The facts on which the trial court relied for its
conclusion that defendant will be a continuing threat were external to the court’s mind and were
capable of being confirmed.
In sum, the objective and verifiable reasons justifying departure keenly and irresistibly
grab one’s attention and are of considerable worth in deciding the length of defendant’s
sentence.4 Further, considering the violent manner in which the victim was killed and
4
Even if we accept that the trial court improperly relied on defendant being a danger to the
public as a reason for departure, resentencing is not warranted. If a trial court articulates
multiple reasons for a departure, but some of the reasons are found to be invalid, this Court must
determine whether the trial court would have departed, and would have departed to the same
degree, on the basis of the valid reasons alone. Babcock, supra at 260, 273. If this Court cannot
determine whether the trial court would have departed from the guidelines range to the same
extent, remand for rearticulation or resentencing is necessary. Id. at 260-261. Having reviewed
(continued…)
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defendant’s prior assaultive history, the extent of the departure, 34 months, is proportionate to
the seriousness of the circumstances surrounding the offense and the offender. See Babcock,
supra at 264, 272.
Defendant also argues that he must be resentenced because the facts supporting the trial
court’s upward departure were not determined by a jury, contrary to Blakely v Washington, 542
US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004). We disagree. 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 a defendant’s maximum sentence is set by statute and
the sentencing guidelines affect only the minimum sentence. People v Drohan, 475 Mich 140;
715 NW2d 778 (2006), cert den ___ US ___; 127 S Ct 592; 166 L Ed 2d 440 (2006); People v
Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). Consequently, defendant’s argument
is without merit.
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
(…continued)
the record and scrutinized the sentencing transcript, we are satisfied that the trial court would
have imposed the same sentence on the basis of the valid factors alone, given that it is apparent
that the court’s conclusion that defendant was a danger to the public was a manifestation of the
court’s earlier objective and verifiable reasons for departure.
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