PEOPLE OF MI V BILLY JOE CHAMBERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 9, 2007
9:00 a.m.
Plaintiff-Appellee,
v
No. 271216
Macomb Circuit Court
LC No. 2006-000637-FC
BILLY JOE CHAMBERS,
Defendant-Appellant.
Official Reported Version
Before: Murphy, P.J., and Smolenski and Schuette, JJ.
MURPHY, P.J.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, and
assault with a dangerous weapon, i.e., felonious assault, MCL 750.82(1). He was sentenced to
81 to 135 months' imprisonment for the armed robbery conviction and 12 to 48 months'
imprisonment for the felonious assault conviction. Defendant argues that his convictions and
sentences violate his constitutional protections against double jeopardy, US Const, Am V; Const
1963, art 1, § 15. He further argues that his Sixth Amendment right to confront witnesses
against him was violated when information given by a nontestifying confidential informant to the
police was elicited and admitted into evidence at trial. Defendant makes an accompanying claim
that counsel was ineffective for failing to object to the Confrontation Clause violation. Pursuant
to People v Smith, 478 Mich 292; 733 NW2d 351 (2007), we hold that there was no double
jeopardy violation because armed robbery and felonious assault do not constitute the "same
offense" given that each requires proof of an element that the other does not. Further, we hold
that there was no Confrontation Clause violation because the out-of-court testimonial statement
by the confidential informant was not admitted to establish or prove the truth of the matter
asserted. Accordingly, counsel was not ineffective for failing to raise what would have been a
futile objection. We thus affirm defendant's convictions and sentences.
I. Basic Facts
On Thursday, December 22, 2005, the female victim drove to a medical center to
withdraw cash from a nearby automated teller machine (ATM). She parked her car in the
medical center's parking lot and walked to the ATM. The victim inserted her ATM card into the
ATM and punched in her personal identification number. The ATM dispensed the requested
amount and returned the victim's ATM card. As she waited for her receipt, "there was somebody
on [her] back." She had not heard anyone approach the ATM, nor had she heard another car
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drive into the parking lot. This person, a man later identified as defendant from photographs
developed from a tape produced by the ATM's video surveillance camera, placed a gun on the
side of the victim's face and demanded her money. The victim held out the money that she had
withdrawn from the ATM, and defendant snatched the cash and her ATM card from her hand.
Defendant then hit the victim in the back of the head, and she fell to the ground. She was
unsure whether defendant struck her with his hand or with an object. Defendant proceeded to
kick the victim as she lay on the ground and called her a derogatory name. He repeatedly
ordered her to stand up, but each time she attempted to stand, defendant kicked her back down.
As defendant was kicking the victim, he demanded her purse. The victim replied that she did not
have a purse. Hearing this, defendant again kicked her and stepped on her legs. According to
the victim, defendant then demanded something else from her, but, not hearing or understanding
what was demanded, she turned onto her back and told defendant that she had nothing.
Defendant stared at her, and the victim noticed that he was holding a gun. The weapon was
pointed straight at her. The victim told defendant that her purse was in her car, and he kicked
her one last time before walking to her car. The victim then got up and ran for assistance.
Defendant fled the area.
The police were able to obtain three still photographs from the video surveillance tape,
and they were aired on local television stations. An FBI agent later contacted the detective
working the case and told him that one of the agent's informants recognized and identified
defendant from the photographs. On the basis of that information, a police surveillance team
monitored defendant's home, and he was arrested after driving up to the house. Defendant was
wearing a jacket that was similar to the jacket worn by the perpetrator as seen on the videotape.
Further, a knit hat with a visor, which matched a description given by the victim, was found in a
search of defendant's bedroom. Defendant was tried and convicted of armed robbery and
felonious assault and sentenced to terms of imprisonment for both offenses.1
II. Analysis
A. Double Jeopardy Argument
Defendant first claims that his convictions and sentences for armed robbery and felonious
assault violate his constitutional protections against double jeopardy. The constitutional
provisions barring double jeopardy, US Const, Am V and Const 1963, art 1, § 15, prohibit a
defendant from being punished multiple times for the same offense. People v Torres, 452 Mich
43, 64; 549 NW2d 540 (1996).
In the recently issued opinion of Smith, supra at 315, the Michigan Supreme Court held
that the ratifiers of the 1963 Michigan Constitution intended that the Double Jeopardy Clause be
construed consistently with then-existing Michigan caselaw and with the interpretation given to
the Fifth Amendment by federal courts. The Smith Court concluded "that the ratifiers intended
1
The jury acquitted defendant of possession of a firearm during the commission of a felony.
MCL 750.227b.
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that the term 'same offense' be given the same meaning in the context of the 'multiple
punishments' strand of double jeopardy that it ha[d] been given with respect to the 'successive
prosecutions' strand." Id. at 315-316. Federal courts, in interpreting the "same offense"
language in the context of multiple punishments, first look to determine whether the Legislature
expressed a clear intent that multiple punishments be imposed. Id. at 316. If the Legislature
clearly intended to impose multiple punishments, the imposition of multiple punishments,
regardless of whether the offenses share the same elements, does not offend the constitutional
protections against double jeopardy. Id. If the Legislature has not clearly expressed its intention
to impose multiple punishments, federal courts apply the "same elements" test announced in
Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 2d 306 (1932). Smith, supra at
316. Under the Blockburger "same elements" test, two offenses are not the "same offense" if
each requires proof of an element that the other does not. Id. at 300, 307. The Smith Court
adopted Blockburger as the proper test under Michigan law relative to double jeopardy analysis
in the context of multiple punishments, overruling People v Robideau, 419 Mich 458; 355 NW2d
592 (1984). Smith, supra at 296, 324.
Pursuant to Smith, we must determine if armed robbery requires proof of an element not
required in establishing a felonious assault and whether felonious assault requires proof of an
element not required in establishing an armed robbery.2 The armed robbery statute, MCL
750.529, currently provides:
A person who engages in conduct proscribed under [MCL 750.530] and
who in the course of engaging in that conduct, possesses a dangerous weapon or
an article used or fashioned in a manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who represents orally or otherwise
that he or she is in possession of a dangerous weapon, is guilty of a felony
punishable by imprisonment for life or for any term of years. If an aggravated
assault or serious injury is inflicted by any person while violating this section, the
person shall be sentenced to a minimum term of imprisonment of not less than 2
years.
The Legislature had amended MCL 750.529 in 2004, resulting, in part, in the deletion of
the following language: "Any person who shall assault another, and shall feloniously rob, steal
2
In conducting its double jeopardy analysis relative to the crimes of first-degree felony murder
and armed robbery, the Smith Court stated:
First-degree felony murder contains elements not included in armed
robbery—namely a homicide and a mens rea of malice. Likewise, armed robbery
contains elements not necessarily included in first-degree felony murder—namely
that the defendant took property from a victim's presence or person while armed
with a weapon. Accordingly, we conclude that these offenses are not the "same
offense" under either the Fifth Amendment or Const 1963, art 1, § 5 and therefore
defendant may be punished separately for each offense. [Smith, supra at 319.]
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and take from his person, or in his presence, any money or other property, which may be the
subject of larceny . . . ." 2004 PA 128; see also Michigan Compiled Laws Annotated (West
2004) Historical and Statutory Notes following MCL 750.529. This deleted language was
replaced, as reflected above, by language that references persons who engage in conduct
proscribed by MCL 750.530.3 MCL 750.530(1) provides:
A person who, in the course of committing a larceny of any money or
other property that may be the subject of larceny, uses force or violence against
any person who is present, or who assaults or puts the person in fear, is guilty of a
felony punishable by imprisonment for not more than 15 years.
The incorporation of MCL 750.530,4 the unarmed robbery statute, into the armed robbery
statute by the 2004 amendment leads us to the conclusion that a prosecutor must now prove, in
order to establish the elements of armed robbery, that (1) the defendant, in the course of
committing a larceny5 of any money or other property that may be the subject of a larceny, used
force or violence against any person who was present or assaulted or put the person in fear, and
(2) the defendant, in the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to reasonably
believe that the article was a dangerous weapon, or represented orally or otherwise that he or she
was in possession of a dangerous weapon. See CJI2d 18.1 (new instruction on armed robbery
that contains the substance of the elements described above but breaks it down into four
elements).6 These elements arise from a plain reading of the statutes when MCL 750.529 and
MCL 750.530 are read in conjunction.7
3
The amendatory language was made effective July 1, 2004, 2004 PA 128; therefore, it is
applicable here, given that the armed robbery and felonious assault took place in December
2005.
4
MCL 750.530 was also amended in 2004 by 128 PA 2004.
5
"In the course of committing a larceny" is statutorily defined as including "acts that occur in an
attempt to commit the larceny, or during commission of the larceny, or in flight or attempted
flight after the commission of the larceny, or in an attempt to retain possession of the property."
MCL 750.530(2).
6
The standard instruction speaks of using force or violence against, assaulting, or putting in fear
the "complainant" and indicates that the "complainant" must be present. CJI2d 18.1(2) and (4).
We note, however, that MCL 750.530 discusses the use of force or violence, an assault, or the
placing in fear in relation to "any person" who is present.
7
If the wording or language of a statute is plain and unambiguous, the Legislature is deemed to
have intended the meaning clearly expressed, and we must enforce the statute as written. People
v Tombs, 472 Mich 446, 451; 697 NW2d 494 (2005); Shinholster v Annapolis Hosp, 471 Mich
540, 549; 685 NW2d 275 (2004). We note that in Smith, supra at 319, our Supreme Court stated
that "[t]he elements of armed robbery are: (1) an assault; (2) a felonious taking of property from
the victim's presence or person; and (3) while the defendant is armed with a weapon." However,
the criminal action at issue in Smith occurred in January 2003, which was before the effective
date of 128 PA 2004, and the Court's recital of the elements paralleled the now deleted language
(continued…)
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The statute proscribing assault with a dangerous weapon, i.e., felonious assault, MCL
750.82, provides that "a person who assaults another person with a gun, revolver, pistol, knife,
iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or
to inflict great bodily harm less than murder is guilty of a felony . . . ." "The elements of
felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure
or place the victim in reasonable apprehension of an immediate battery." People v Avant, 235
Mich App 499, 505; 597 NW2d 864 (1999).
Having compared the elements of armed robbery and felonious assault, we deduce that
armed robbery requires proof of an element not required to establish a felonious assault, i.e.,
actions in the course of committing a larceny. Furthermore, the elements of felonious assault
require proof of an element not required to establish an armed robbery, i.e., the use of a
dangerous weapon. Indeed, an armed robbery can be completed without the actual use of a
dangerous weapon, such as where a defendant uses an article fashioned in a manner to lead a
person to reasonably believe that the article is a dangerous weapon, or where the defendant
merely represents orally or otherwise that he or she is in possession of a dangerous weapon.
Felonious assault, on the other hand, requires the use of a dangerous weapon. MCL 750.82;
Avant, supra at 505.8
We conclude that double jeopardy issues are not implicated when a defendant is
convicted and sentenced for both armed robbery and felonious assault, because they are not the
"same offense" given that, under the "same elements" test that is now applicable to the "multiple
punishments" strand of double jeopardy under Smith, each offense has an element that is not
required for the other.9
(…continued)
contained in MCL 750.529 before the amendment. We would also note that it was unnecessary
for the Smith Court, in the context of examining felony murder and armed robbery, to elaborate
on the fact that an armed robbery can be effectuated without the actual use of a dangerous
weapon.
8
Smith indicated that it is the legal elements of the respective offenses that must be focused on
and examined, not the particular factual circumstances giving rise to the charges. See Smith,
supra at 307-311, 314-316. Thus, the actual use of a dangerous weapon to accomplish a
particular armed robbery is irrelevant to the double jeopardy inquiry.
9
In light of the amendments of MCL 750.529 and MCL 750.530 and the Supreme Court's ruling
in Smith, we no longer find relevant the decision in People v Yarbrough, 107 Mich App 332; 309
NW2d 602 (1981), in which this Court held that felonious assault and armed robbery should be
punished separately only when it can be clearly established that the offenses occurred at separate
times. Additionally, the language in MCL 750.529 mandating a minimum two-year prison term
when an aggravated assault or serious injury is inflicted during an armed robbery does not reflect
a clear intention by the Legislature that felonious assault and armed robbery should not be
prosecuted and punished separately. See Smith, supra at 316. The Legislature has shown its
capability at clearly and expressly precluding prosecutions under multiple statutes, e.g.,
providing that "[a] person who commits retail fraud in the second degree [under MCL 750.356d]
shall not be prosecuted under [MCL 750.360]." MCL 750.356d(3). Such clarity is not reflected
(continued…)
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B. Confrontation Clause Argument
Defendant also claims that his right of confrontation was violated when the lead detective
testified that he received a telephone call from an FBI agent who told him that one of the agent's
informants recognized the man in the still photographs as defendant. Because defendant failed to
object to the testimony, we review defendant's argument for plain error affecting his substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Defendant also argues
that he was denied the effective assistance of counsel because counsel failed to object to the
detective's testimony. Because defendant failed to move for a new trial or for a Ginther10
hearing, our review of defendant's claim of ineffective assistance of counsel is limited to errors
apparent on the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
A defendant has the right to be confronted with the witnesses against him or her. US
Const, Am VI; Const 1963, art 1, § 20; Crawford v Washington, 541 US 36, 42; 124 S Ct 1354;
158 L Ed 2d 177 (2004). The Confrontation Clause prohibits the admission of all out-of-court
testimonial statements unless the declarant was unavailable at trial and the defendant had a prior
opportunity for cross-examination. Id. at 68. A statement by a confidential informant to the
authorities generally constitutes a testimonial statement. United States v Cromer, 389 F3d 662,
675 (CA 6, 2004). However, the Confrontation Clause does not bar the use of out-of-court
testimonial statements for purposes other than establishing the truth of the matter asserted.
People v McPherson, 263 Mich App 124, 133; 687 NW2d 370 (2004), citing Crawford, supra at
59 n 9. Thus, a statement offered to show the effect of the out-of-court statement on the hearer
does not violate the Confrontation Clause. People v Lee, 391 Mich 618, 642-643; 218 NW2d
655 (1974). Specifically, a statement offered to show why police officers acted as they did is not
hearsay. People v Jackson, 113 Mich App 620, 624; 318 NW2d 495 (1982).
In the present case, the challenged testimony did not violate defendant's right of
confrontation. The testimony was not offered to establish the truth of the informant's tip.
Rather, it was offered to establish and explain why the detective organized a surveillance of
defendant's home and how defendant came to be arrested. Because the Confrontation Clause
does not bar the use of out-of-court testimonial statements for purposes other than establishing
the truth of the matter asserted, the testimony did not violate defendant's right of confrontation.
Thus, the trial court did not plainly err when it admitted the detective's testimony. In addition,
because the testimony did not violate defendant's right of confrontation, any objection to the
testimony would have been futile. Counsel is not ineffective for failing to make a futile
objection. People v Fike, 228 Mich App 178, 182-183; 577 NW2d 903 (1998). Accordingly,
defendant was not denied the effective assistance of counsel.
(…continued)
in MCL 750.529; there is no statement that a person shall not be additionally prosecuted or
punished under MCL 750.82.
10
People v Ginther, 390 Mich 436, 441-442; 212 NW2d 922 (1973).
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III. Conclusion
Pursuant to Smith, supra, we hold that there was no double jeopardy violation because
armed robbery and felonious assault do not constitute the "same offense" given that each
requires proof of an element that the other does not. Further, we hold that there was no
Confrontation Clause violation because the out-of-court testimonial statement by the confidential
informant was not admitted to establish or prove the truth of the matter asserted. Accordingly,
counsel was not ineffective for failing to raise a futile objection. In sum, reversal of defendant's
convictions and sentences is unwarranted.
Affirmed.
/s/ William B. Murphy
/s/ Michael R. Smolenski
/s/ Bill Schuette
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