PEOPLE OF MI V ANTHONY DWAYNE SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 31, 1997
Plaintiff-Appellee,
v
No. 193537
Recorder’s Court
LC No. 95-005355
ANTHONY DWAYNE SMITH,
Defendant-Appellant.
Before: Saad, P.J., and O'Connell and M.J. Matuzak*, JJ.
PER CURIAM.
A jury convicted defendant of two counts of first-degree premeditated murder, MCL 750.316;
MSA 28.548, two counts of first-degree felony murder, MCL 750.316; MSA 28.548, one count of
armed robbery, MCL 750.529; MSA 28.797, four counts of assault with intent to commit murder,
MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL
750.227b; MSA 28.424(2). Defendant appeals as of right, and we affirm.
I
Defendant argues that he was denied effective assistance of counsel because his trial counsel
failed to investigate and present alibi witnesses. Defendant failed to move for a Ginther1 hearing or a
new trial on the basis of ineffective assistance of counsel. Therefore, this Court’s review is limited to
mistakes apparent on the record. People v McMillian, 213 Mich App 134, 141; 539 NW2d 553
(1995). To establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s
performance was deficient and that, under an objective standard of reasonableness, counsel made an
error so serious that counsel was not functioning as an attorney as guaranteed by the Sixth Amendment.
People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). The deficiency must be prejudicial
to the defendant. Id.
A defendant is entitled to have his counsel prepare, investigate and present all substantial
defenses. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). “At a posttrial
* Circuit judge, sitting on the Court of Appeals by assignment.
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evidentiary hearing, however, a defendant must show that he made a good-faith effort to avail himself of
this right and that the defense of which he was deprived was substantial.” Id. A substantial defense is
one that might have made a difference in the outcome of the trial. Id.
Here, defendant testified at trial that during the time period in which the crimes were committed
he stopped at an after hours establishment for a drink. Defendant contends on appeal that there were
witnesses at this establishment who could testify to his whereabouts. However, there is nothing in the
record showing what the proposed alibi witnesses’ testimony would have been had they been permitted
to testify and whether they would have, in fact, provided an alibi for defendant. Thus, on this record,
there is no showing that defendant was denied effective assistance of counsel.
II
Defendant next contends that, because the three eyewitness who identified him were allegedly
limited in their ability to perceive their assailant due to (among other things) intoxication, there was
insufficient evidence to convict him of the charged crimes. Whether the eyewitnesses were in a position
to perceive defendant as their assailant is not an issue of sufficiency, but rather, credibility. People v
Boynton, 46 Mich App 748, 749; 208 NW2d 523 (1973). Defendant’s sufficiency challenge on this
basis cannot be maintained.
III
Next, defendant argues that there was insufficient evidence for a reasonable jury to find all of the
elements of first-degree felony murder. We disagree. Statutory felony murder is governed by MCL
750.316; MSA 28.548, says that:
(1) A person who commits any of the following is guilty of first degree murder and shall
be punished by imprisonment for life:
* * *
(b) 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 substances offense, robbery, breaking and entering of a
dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or
kidnapping.
The elements of felony murder are: (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 the 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 MCL 750.316; MSA 28.548. People v
Thew, 201 Mich App 78, 85; 506 NW2d 547 (1993).
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Here, the robbery of the victims formed the basis of the felony murder charge. The elements of
armed robbery are: (1) assault, (2) felonious taking of property from the victim’s person or presence,
and (3) defendant being armed with a weapon described in the statute. MCL 750.529; MSA 28.797;
People v Johnson, 206 Mich App 122, 123; 520 NW2d 672 (1994). Defendant contends that the
evidence was insufficient for a reasonable trier of fact to conclude that property was taken from the
victims.
Contrary to defendant’s position, there was ample evidence to support the jury’s findings that
either property was taken or that there was an attempt to take property from six victims, including the
two that died. Complainant James testified that after the shooting he heard defendant say to his
companion, “Hit all they [sic] pockets.” James testified that he then felt a hand in his right pocket where
he had more than two hundred dollars. Although the only thing complainant Raynard recalls after going
to sleep that evening was waking up in the hospital weeks later recovering from gunshot wounds, he did
testify that when he went to sleep that night there was four or five hundred dollars and drugs in his
pocket and that these things were gone when he awoke in the hospital. Complainant Rodney testified
that after he was shot he felt either defendant or defendant’s accomplice go through his pockets and
take his money. From this evidence, a rational trier of fact could reasonably infer that the two victims
were killed during the commission of a robbery perpetrated by defendant and his accomplice.
Therefore, viewing the evidence in the light most favorable to the prosecution, sufficient evidence was
presented to support defendant’s convictions.
IV
Defendant also says that he is entitled to a new trial as a result of the trial court’s admission of
hearsay. Again, we disagree.
Three witnesses testified that two of the victims told them that defendant had committed the
shootings. The trial court did not abuse its discretion when it admitted this testimony because a proper
foundation was laid that permitted the testimony to be admitted under the excited utterance exception to
the hearsay rule. MRE 803(2). Complainants, James and Rodney, told the witnesses the identity of
their assailants while they were still under the influence of an overwhelming emotional condition brought
on by the stress of being the victims of a shooting spree. Put another way, the statements by James and
Rodney were made before there had been time to contrive and misrepresent. Consequently, the
testimony was properly admitted under the excited utterance exception. People v Kowalak (On
Remand), 215 Mich App 554, 557-558; 546 NW2d 681 (1996). Because this evidence was
properly admitted, we find no merit in defendant’s argument that the prosecutor improperly elicited the
hearsay testimony.
V
Finally, we hold that the retrial of defendant following the trial court’s mid-trial declaration of a
mistrial did not violate the Double Jeopardy Clause. US Const, Am V; Const 1963, art 1, § 15. When
a defendant exercises the right to trial by jury, jeopardy generally attaches at the time the jury is selected
and sworn. People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997). “If the trial is concluded
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prematurely, a retrial for that offense is prohibited unless the defendant consented to the interruption or a
mistrial was declared because of a manifest necessity.” Id. Any doubt regarding the existence of
manifest necessity should be resolved in favor of the defendant. People v Little, 180 Mich App 19,
23; 446 NW2d 566 (1989). The trial court must exercise the power to declare a mistrial with great
caution and employ less drastic alternatives which would be revealed by the scrupulous exercise of
judicial discretion. Id. After a review of the record, we conclude that the trial court declared a mistrial
out of manifest necessity and therefore, defendant’s retrial did not violate the Double Jeopardy Clause.
In People v Dry Land Marina, 175 Mich App 322, 325-326; 437 NW2d 391 (1989), cert
denied, 495 US 931, 110 S Ct 2170, 109 LE2d 499 (1990), we concluded that it was proper for a
trial judge to discharge an ailing juror and replace the juror with an alternate after the jury had begun
deliberations. Here, the trial court had no reasonable alternative but to relieve the discharged juror of
her obligations in light of the recommendations of her physician. Thus, removing the juror was not an
abuse of discretion. Nor did the trial court abuse its discretion in thereafter declaring a mistrial. Two of
the original fourteen jurors had been lost to attrition the day before and defendant, as was within his
rights, refused to be tried by fewer than twelve jurors. Under these circumstances, the trial court had no
other available alternatives but to declare a mistrial. Retrial of defendant was therefore permissible (and
not violative of the Double Jeopardy Clause) because the declaration of a mistrial was manifestly
necessary.
Affirmed.
/s/ Henry William Saad
/s/ Peter D. O'Connell
/s/ Michael J. Matuzak
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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