PEOPLE OF MI V TERRENCE LEE MCCRADYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 19, 2000
Genesee Circuit Court
LC No. 98-002690-FC
TERRENCE LEE McCRADY,
February 16, 2001
Before: Jansen, P.J., and Doctoroff and O'Connell, JJ.
Defendant appeals as of right his jury convictions of first-degree felony murder, MCL
750.316(1)(b); MSA 28.548(1)(b), and possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). The trial court sentenced defendant to life in prison for
the first-degree felony-murder conviction, and two years in prison for the felony-firearm
conviction. We affirm.
The charges arise from the shooting death of Travis Daugherty. The prosecution's theory
is that defendant aided and abetted codefendant Miguel Barron in the shooting. The prosecutor
charged Barron and defendant with first-degree premeditated murder, MCL 750.316(1)(a); MSA
28.548(1)(a), and with felony murder, MCL 750.316(1)(b); MSA 28.548(1)(b), the underlying
felony either being home invasion, MCL 750.110a(2); MSA 28.305(a)(2), or robbery, MCL
750.529; MSA 28.797. The prosecution alleged that Barron and defendant went to the apartment
of Felicia Crawley, Barron's ex-girlfriend, with the intent to either murder or rob the occupants.
Defendant asserted, through counsel, that he was only at the apartment to protect Barron as he
retrieved some clothing from Crawley's apartment. According to defendant, the victim had
stabbed Barron during a previous visit.
Defendant's first argument is that the trial court erred in failing to suppress evidence of a
statement that he gave to the police. Generally, a defendant must challenge the admissibility of a
confession in the trial court or the issue is unpreserved. People v Snider, 239 Mich App 393,
417; 608 NW2d 502 (2000); People v Gray, 45 Mich App 643, 644; 207 NW2d 161 (1973).
Because defendant did not object at trial, and he noted on the record his decision not to bring a
motion for a Walker1 hearing, the issue is not preserved. We therefore review this claim for plain
error that affected defendant's substantial rights. People v Carines, 460 Mich 750, 774; 597
NW2d 130 (1999).
Our review of the record leaves us with little doubt that defendant
knowingly, intelligently, and voluntarily waived his rights, and we therefore find no error
requiring reversal on this issue.
Defendant's second argument is that the trial court erred in instructing the jury on the
element of intent with respect to first-degree home invasion and felony murder.
defendant did not object at trial and the issue is unpreserved. Snider, supra at 420. We have
reviewed the disputed instructions and conclude that they fairly presented the issues and
sufficiently protected defendant's rights. People v Mass, 238 Mich App 333, 341; 605 NW2d
322 (1999). Therefore, the trial court did not commit plain error that affected defendant's
substantial rights. Carines, supra at 774; Snider, supra at 420.
Defendant's third contention is that using the felony of first-degree home invasion to
support his felony-murder conviction was "redundant, circular, and against the intent of the
Legislature." Resolution of this issue entails a questions of law and statutory interpretation. We
review such questions de novo. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998).
First-degree felony murder includes:
Murder committed in the perpetration of, or attempt to perpetrate, arson,
criminal sexual conduct in the first, second, or third degree, child abuse in the first
degree, a major controlled substance offense, robbery, carjacking, breaking and
entering of a dwelling, home invasion in the first or second degree, larceny of any
kind, extortion, or kidnapping. [MCL 750.316(1)(b); MSA 28.548(1)(b)
Felony murder consists of the following elements: (1) the killing of a human being, (2) with the
intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm
with knowledge that death or great bodily harm was the probable result, (3) while committing,
attempting to commit, or assisting in the commission of any of the felonies specifically
enumerated in the felony-murder statute. People v Nowack, 462 Mich 392, 401; 614 NW2d 78
(2000); Carines, supra at 758-759.
The first-degree home invasion statute, MCL 750.110a(2); MSA 28.305(a)(2), provides:
A person who breaks and enters a dwelling with intent to commit a felony,
larceny, or assault in the dwelling, a person who enters a dwelling without
permission with intent to commit a felony, larceny, or assault in the dwelling, or a
person who breaks and enters a dwelling or enters a dwelling without permission
and, at any time while he or she is entering, present in, or exiting the dwelling,
commits a felony, larceny, or assault is guilty of home invasion in the first degree
if at any time while the person is entering, present in, or exiting the dwelling
either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
In the instant case, the prosecutor sought to prove that defendant intended to commit
either robbery or murder. Defendant contends that using the intent to commit murder as the
underlying predicate for felony murder is circular and that the Legislature did not intend such a
result. We disagree. First, the lower court record does not indicate whether the basis of the jury's
verdict was that defendant went to the apartment with the intent to murder or the intent to rob.
Second, MCL 750.316(1)(b); MSA 28.548(1)(b) provides that murder committed during a firstdegree home invasion constitutes felony murder. We presume that the Legislature intended the
meaning that it plainly expressed. People v Venticinque, 459 Mich 90, 99; 586 NW2d 732
The breaking and entering of a dwelling, or the entering of a dwelling without
permission, constitutes first-degree home invasion if the perpetrator has the intent to commit any
felony therein. MCL 750.110a(2); MSA 28.305(a)(2). In our view, the felony-murder statute is
straightforward and its plain meaning is determinative of this issue. Accordingly, we affirm
defendant's felony-murder conviction, which had first-degree home invasion as its predicate
Finally, defendant argues that a remand to the trial court is necessary to correct the
presentence investigation report, which erroneously states that defendant was convicted of firstdegree premeditated murder. The jury actually convicted him of first-degree felony murder. To
preserve an issue regarding the accuracy of the presentence investigation report for appeal, the
defendant must object to the error at the time of sentencing. People v Bailey (On Remand), 218
Mich App 645, 647; 554 NW2d 391 (1996). Here, defendant did not object to the alleged error
at the time of sentencing, and so the issue is unpreserved. Although the presentence investigation
report contains plain error in that it misstates the crime of which the jury convicted defendant, the
error does not deprive defendant of any substantial right. Carines, supra at 774. We therefore
decline to remand for correction of the presentence report.
/s/ Peter D. O'Connell
/s/ Kathleen Jansen
/s/ Martin M. Doctoroff
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Our conclusion is also consistent with People v Warren, 228 Mich App 336; 578 NW2d 692
(1998); rev'd in part on other grounds 462 Mich 415; 615 NW2d 691 (2000). Although Warren
involved a different issue, this Court ultimately affirmed the defendant's felony-murder
conviction where the underlying felony was first-degree home invasion. Id. at 345-354.