PEOPLE OF MI V CALVIN L FULBRIGHTAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 17, 1998
Oakland Circuit Court
LC No. 96-145817 FC
CALVIN L. FULBRIGHT,
Before: Corrigan, C.J., and MacKenzie and R. P. Griffin*, JJ.
Following a jury trial, defendant was convicted of assault with intent to rob while armed, MCL
750.89; MSA 28.284, assault with intent to murder, MCL 750.83; MSA 28.278, and two counts of
possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
Defendant was sentenced as an habitual offender, third offense, MCL 769.11; MSA 28.1083, to
twenty-five to fifty years’ imprisonment for each assault conviction, to be served consecutively to his
mandatory two-year sentence for the felony-firearm convictions. He appeals as of right. We affirm.
Complainants Charles and Jeffery Fitch were walking toward Charles Fitch’s house on the
evening of April 4, 1996, when a man approached them with a gun, pointed it at Charles Fitch, and
fired twice. The man then pointed the gun at Jeffery Fitch’s head and took his car keys. Charles Fitch
got into the house and called 911. He described the assailant as wearing a rolled up black stocking cap
and a white and red shirt with the word “Fila” on the front. The police apprehended defendant a short
time later behind a restaurant approximately two-tenths of a mile from Charles Fitch’s house.
Defendant was wearing a Fila shirt. Police found a black stocking cap, Jeffery Fitch’s keys, and a gun
nearby. Testing revealed that a bullet and spent shell casing found at Charles Fitch’s house were fired
from that gun.
On appeal, defendant first contends that the trial court erred in allowing Charles Fitch to make
an in-court identification of defendant as his assailant. Even if the trial court erred in allowing the in
court identification, the error would warrant reversal only if it was not harmless
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
beyond a reasonable doubt. People v Solomon (Amended Opinion), 220 Mich App 527, 531; 560
NW2d 651 (1996); People v Winans, 187 Mich App 294, 299; 466 NW2d 731 (1991). Here, the
evidence aside from the identification was sufficient to support defendant’s conviction. Defendant was
apprehended shortly after the shooting within two-tenths of a mile from the shooting. He was wearing a
Fila shirt as described by Charles Fitch. When he saw the police, he tried to hide. When questioned,
he gave a false name. The gun used in the assault, Jeffery Fitch’s keys, and a cap matching the
description given by Charles Fitch were found where defendant was apprehended. Defendant claimed
that Germaine Watkins was the shooter. However, Watkins, who is 6’ 11” tall and weighs over four
hundred pounds, clearly did not fit the description of the assailant given by either brother. Given the
overwhelming evidence that defendant was the person who assaulted the Fitch brothers, aside from the
in-court identification by Charles Fitch, any error in allowing the identification was harmless beyond a
Defendant next argues that he was denied due process when the trial court denied his motion for
a Walker hearing [People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965)]. The
motion was made on the first day of trial, after defendant’s motion to adjourn was denied and just
before jury selection, and was requested on the ground that counsel wanted to cross-examine the
officers who interviewed defendant to see if there was some possibility that his statement was
involuntary. Given the circumstances, defendant’s motion was not the type of pretrial motion
contemplated by Walker, supra, and the decision to entertain the motion was in the discretion of the
trial court. See People v Mitchell, 44 Mich App 679, 683; 205 NW2d 876 (1973), rev’d on other
grounds 402 Mich 506; 265 NW2d 163 (1978); People v Soltis, 104 Mich App 53, 55; 304 NW2d
811 (1981). In light of the generality and timing of the request, we find no abuse of discretion.
Furthermore, even if the trial court abused its discretion in refusing to accord defendant a full Walker
hearing, the error would not require reversal because the record shows that defendant’s statements -
which did not constitute a confession or acknowledge culpability in any way and were voluntarily given
after defendant was read his Miranda rights [Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L
Ed 2d 694 (1966)] -- were voluntarily made and the police did not engage in misconduct. People v
Littlejohn, 197 Mich App 220, 223-224; 495 NW2d 171 (1992).
Defendant’s final argument is that there was insufficient evidence to prove that he acted with
intent to kill. When reviewing the sufficiency of the evidence, this Court must view the evidence in a light
most favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich
508; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). Circumstantial evidence and
reasonable inferences arising from that evidence may constitute satisfactory proof of the elements of the
offense, including the intent to kill. People v Barclay, 208 Mich App 670, 674; 528 NW2d 842
(1995). In this case, defendant’s gun was loaded, he fired it while aiming it at Charles Fitch, and one of
the bullets hit, at chest height, the door Fitch was attempting to open. From this evidence, a rational jury
could infer that defendant intended to kill Charles Fitch.
/s/ Maura D. Corrigan
/s/ Barbara B. MacKenzie
/s/ Robert P. Griffin