PEOPLE OF MI V JOSEPH JEROME SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 23, 2008
Plaintiff-Appellee,
v
No. 277901
Oakland Circuit Court
LC No. 2007-212716-FC
JOSEPH JEROME SMITH,
Defendant-Appellant.
Before: Davis, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529,
carjacking, MCL 750.529a, felon in possession of a firearm, MCL 750.224f, third-degree fleeing
or eluding a police officer, MCL 257.602a, carrying a concealed weapon (CCW), MCL 750.227,
and two counts of possession of a firearm during the commission of a felony, MCL 750.227b.
He was sentenced, as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 60
to 100 years each for the armed robbery and carjacking convictions, and 5 to 20 years each for
the felon in possession, fleeing or eluding, and CCW convictions, with the carjacking and felon
in possession sentences to be served consecutive to two concurrent two-year terms of
imprisonment for the felony-firearm convictions. He appeals as of right. We affirm.
Defendant’s convictions arise from the September 5, 2006, robbery of a Bank of
Michigan branch in Farmington Hills, Michigan.
I. Appellate Counsel’s Brief
Defendant first argues that the prosecution abused its discretion by charging him in the
alternative with both armed robbery and bank robbery. Defendant did not preserve this issue
below, because he did not object to the alternative charges in the trial court. Accordingly, we
review this issue for plain error affecting defendant’s substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999).
Defendant was charged in the alternative with both armed robbery and bank robbery,
MCL 750.531, and the jury was given the option of finding him guilty of either armed robbery
“or” bank robbery, or not guilty. The jury found him guilty of armed robbery.
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On appeal, defendant argues that he should have been charged only with bank robbery,
because that statute is more specific. He relies on case law holding that where two statutes
prohibit the same conduct, the defendant must be charged under the more specific, and more
recently enacted, statute. See People v Patterson, 212 Mich App 393, 394-395; 538 NW2d 29
(1995). But if two statutes prohibit different conduct (i.e., an additional element is required to
convict the defendant of one crime, but not the other), the prosecutor has the discretion to charge
under either statute. People v Werner, 254 Mich App 528, 536-537; 659 NW2d 688 (2002);
People v Peach, 174 Mich App 419, 423; 437 NW2d 9 (1989). With respect to armed robbery
and bank robbery, this Court observed in People v Avery, 115 Mich App 699, 701-702; 321
NW2d 779 (1982):
The essential elements of armed robbery consist of an assault, a felonious
taking of property from the victim’s person or presence, and that the defendant be
armed with a weapon. In contrast, the statute on bank robbery does not require
that a defendant be armed, nor does it require an assault or felonious taking. In
addition, the statute on bank robbery requires that there be an intent to steal from
a building, bank, safe, or other depository of money to establish a violation
whereas the statute on armed robbery requires the felonious taking to be from a
person or in his presence.
There will be times when the statute on armed robbery and the statute on
bank robbery will overlap. However, not every violation of the statute on bank
robbery will result in a violation of the statute on armed robbery. This is not a
case of the Legislature carving out an exception to a general statute and providing
a lesser penalty for a more specific offense, in which case the prosecutor would
have to charge the defendant under the statute fitting the particular facts. The
crimes of armed robbery and bank robbery involve different elements and carry
the same possible sentence. [Citations omitted.]
In Avery, this Court concluded that the prosecutor had the discretion to charge either bank
robbery or armed robbery. Id. at 702.
In this case, there was factual support for both charges, and because the prosecution had
the discretion to charge defendant with either bank robbery or armed robbery, there was no plain
error in charging defendant in the alternative with both offenses.
Defendant next argues that there was insufficient evidence to support his carjacking
conviction. We disagree.
In determining whether sufficient evidence has been presented to sustain a conviction, an
appellate court is required to view the evidence in a light most favorable to the prosecution and
determine whether a rational trier of fact could have found that the essential elements of the
crime were proven beyond a reasonable doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d
108 (1994).
The offense of carjacking requires proof of three elements: (1) that the defendant took a
motor vehicle from another person, (2) that the defendant did so in the presence of that person, a
passenger, or any other person in lawful possession of the motor vehicle, and (3) that the
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defendant did so either by force or violence, by threat of force or violence, or by putting the other
person in fear. People v Davenport, 230 Mich App 577, 579; 583 NW2d 919 (1998).
The evidence indicated that defendant entered a motor vehicle that was occupied by the
driver and three passengers, announced he was taking the car, and pointed a gun at the
occupants. The occupants fled the vehicle and defendant attempted to drive away. We find no
merit to defendant’s argument that the evidence did not establish a taking because he only
intended to use the vehicle to flee from the police, and never actually took the vehicle because it
was involved in an accident before he was able to evade the police. A defendant takes a motor
vehicle from another when he acquires possession of the motor vehicle, through force or
violence, threat of force or violence, or by putting another in fear. People v Green, 228 Mich
App 684, 695-696; 580 NW2d 444 (1998). In this case, defendant announced he was taking the
vehicle, threatened the occupants with a gun, gained physical possession of the vehicle, and
attempted to drive away. The evidence was sufficient to support defendant’s carjacking
conviction.
Defendant next argues that the trial court erred by allowing the prosecutor to admit
evidence of his 1996 and 1997 convictions (for receiving or concealing stolen property, two
counts of unlawful use of a motor vehicle, and receiving or concealing stolen property), for
impeachment. We disagree.
This Court reviews for an abuse of discretion a trial court’s determination whether a prior
conviction involving a theft component may be used to impeach a defendant. People v Meshell,
265 Mich App 616, 634; 696 NW2d 754 (2005).
The trial court applied the balancing test under MRE 609(b) to determine the
admissibility of the convictions. The prosecutor established that each of the prior convictions
involved the theft of a car. Because the prior convictions involved theft crimes, they were
probative of defendant’s credibility. Meshell, supra at 635. The probative value of the
convictions was diminished, however, by their age.1 Nonetheless, the prior convictions were
dissimilar to the charged offenses, and defendant appeared prepared to testify regardless of
whether the convictions were admitted, thereby minimizing any prejudicial effect. Although the
charges in this case included carjacking, which like defendant’s prior convictions involves the
taking of an automobile, none of the prior convictions was for an offense involving the taking of
an automobile by force or violence, and therefore, the prior convictions were dissimilar to the
charged carjacking offense. On balance, however, the trial court did not abuse its discretion in
admitting defendant’s prior convictions for impeachment.
Defendant next argues that improper comments by the prosecutor deprived him of a fair
trial. Because defendant did not object to the prosecutor’s comments at trial, we review this
1
Although defendant asserts for the first time on appeal that the convictions did not qualify for
admission under MRE 609 because they were more than ten years old, MRE 609(c) provides that
the ten-year cut-off period is measured from the date of the conviction or the date of release from
confinement, whichever is later. The record in this case indicates that less than ten years elapsed
since the date of defendant’s release from confinement for the convictions.
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issue for plain error affecting defendant’s substantial rights. Carines, supra at 763; People v
Barber, 255 Mich App 288, 296; 659 NW2d 674 (2003).
Contrary to what defendant argues, the prosecutor did not vouch for the credibility of her
witnesses, by suggesting that she had special knowledge that they were testifying truthfully.
People v Ramsdell, 230 Mich App 386, 404; 585 NW2d 1 (1998). Rather, she offered plausible
explanations, based on the evidence at trial, for why some of their testimony conflicted with
other evidence. A prosecutor properly may comment on a witness’s credibility, People v
Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004), and is permitted to comment on
testimony and draw reasonable inferences from it, People v Buckey, 424 Mich 1, 14-15; 378
NW2d 432 (1985). Further, it was not improper for the prosecutor to argue from the evidence
that defendant was a liar. A prosecutor properly may argue from the facts that a defendant is
unworthy of belief. People v Dobek, 274 Mich App 58, 67; 732 NW2d 546 (2007).
Accordingly, there was no plain error.
II. Defendant’s Standard 4 Brief.
Defendant raises several issues in a pro se supplemental brief, filed pursuant to Supreme
Court Administrative Order No. 2004-4, Standard 4, none of which has merit.
First, defendant argues that his statement to Officer Beesley was improperly admitted at
trial because he was not advised of his Miranda2 rights before making the statement. We
disagree.
This Court reviews de novo a trial court’s ultimate decision on a defendant’s motion to
suppress a statement to the police. People v Akins, 259 Mich App 545, 563; 675 NW2d 863
(2003). However, the trial court’s factual findings are reviewed for clear error. Id.
While placing defendant in her patrol car after he was arrested, Office Beesley told
defendant he was lucky he was not shot. Defendant responded, “You guys are lucky I didn’t
shoot you. I do practice and know how to shoot my gun.”
Failure to give Miranda warnings to a person, before the person is subject to a custodial
interrogation, renders any statement made inadmissible for purposes other than impeachment.
People v Raper, 222 Mich App 475, 479; 563 NW2d 709 (1997). “Interrogation” refers to
express questioning, and to any words or actions by the police that the police should know are
reasonably likely to elicit an incriminating response. Id. Statements made voluntarily by
persons in custody do not fall within the purview of Miranda. Id.
In this case, Beesley testified that she was not questioning defendant, and expected no
response from him when she told him he was lucky he was not shot. Viewed objectively,
Beesley’s brief remark did not involve questioning, nor did it call for an incriminating response.
The trial court did not clearly err in finding that it was not reasonably designed to elicit an
2
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602, 1612; 16 L Ed 2d 694 (1966).
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incriminating response. Accordingly, defendant was not being interrogated when he made his
remark, and Miranda warnings were not required. Thus, the statement was admissible.
Next, defendant argues he was denied a fair trial, because defense counsel had a folder
with both his name and the words “In Custody” written on it, which was pointed toward the jury.
Defendant argues that this situation is comparable to appearing before a jury in shackles. We
disagree.
“Freedom from shackling and manacling of a defendant during a trial of a criminal case
has long been recognized as an important component of a fair and impartial trial.” People v
Duplissey, 380 Mich 100, 103; 155 NW2d 850 (1968). In People v Baskin, 145 Mich App 526,
546; 278 NW2d 535 (1985), this Court observed that shackling “is a situation where actions
speak louder than words” and that “mere shackling” “impinge[s] upon defendant’s credibility by
indicating that defendant was not to be trusted.” These same concerns are not implicated by the
mere display of a folder with the words “in custody.” Moreover, as the trial court observed, the
jury was aware that defendant had been charged with several serious offenses, and two sheriff’s
deputies were in the courtroom throughout the trial, so the mere fact that defendant may have
been in custody should not have been alarming or unexpected to the jury.
Although defendant asserts on appeal that the trial court should have at least provided a
cautionary instruction, he did not request an instruction in the trial court. In any event, the trial
court did instruct the jury that a person accused of a crime is presumed to be innocent, that this
presumption continues throughout the trial, and that defendant is entitled to a not-guilty verdict
unless the jury was satisfied beyond a reasonable doubt that defendant was guilty.
Under the circumstances, the folder display did not prejudice defendant’s right to a fair
trial, and the trial court did not abuse its discretion in failing to take any additional action.
People v Banks, 249 Mich App 247, 256; 642 NW2d 351 (2002).
Finally, because no cognizable errors have been identified, reversal under a cumulative
error theory is unwarranted. Werner, supra at 544.
Affirmed.
/s/ Alton T. Davis
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
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