PEOPLE OF MI V ORLANDO FOUNTAIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 2, 2001
Plaintiff-Appellee,
v
No. 218209
Wayne Circuit Court
LC No. 98-009723
ORLANDO FOUNTAIN,
Defendant-Appellant.
Before: Markey, P.J., and McDonald and K. F. Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA
28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2). The trial court sentenced defendant to ten to twenty years on the armed robbery
conviction and two years on the felony-firearm conviction. Defendant now appeals by right. We
affirm.
This case arises from the robbery of mail being delivered by a United States postal
worker. The postal worker positively identified defendant as her assailant in the case in chief and
by another postal worker in a similar uncharged mail robbery. Defendant’s motion to exclude his
pretrial identification was denied by the trial court after a Wade1 hearing held. At trial, the
prosecutor introduced evidence of both the charged and uncharged robberies. From this and
other claims of error, defendant now appeals.
Introduction of evidence
Defendant first argues that the trial court improperly admitted testimony that an
unidentified informant prompted the postal inspector to investigate defendant as a suspect.
Defendant claims that the testimony infringed on his constitutional right to confront his accusers
and that the prejudice ensuing from this information far outweighed its probative value. We
disagree. The decision whether to admit evidence is within the discretion of the trial court and
will not be disturbed on appeal absent a clear abuse of discretion. People v Starr, 457 Mich 490,
1
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).
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494; 577 NW2d 673 (1998). “An abuse of discretion is found only if an unprejudiced person,
considering the facts on which the trial court acted, would say there was no justification or
excuse for the ruling made.” People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000).
The prejudicial effect of evidence is best determined by the trial court’s contemporaneous
assessment of the presentation, credibility, and effect of the testimony. People v Bahoda, 448
Mich 261, 291; 531 NW2d 659 (1995). Generally, great deference is given to a trial court’s
decision, and a decision with regard to a close evidentiary question cannot be considered an
abuse of discretion. Id. at 290.
In People v Wilkins, 408 Mich 69, 70-74; 288 NW2d 583 (1980), the Supreme Court
reversed the defendant’s conviction because the trial court allowed a police officer’s testimony
on the content of the information a tipster provided him. The case at bar is factually
distinguishable from Wilkins because the only testimony providing content of the informant’s
statement to the postal inspector was that defendant’s name was provided, and the statement
served to focus the investigation on defendant. This falls short of being prejudicial. Even if the
witness did not explicitly provide defendant’s name, it still could have been easily inferred from
the nature and context of the inquiry and dialogue. Further, the confirmation of defendant’s
involvement in the robbery came from sources independent of the informant – specifically, a
photographic array and a lineup. The postal inspector’s testimony was limited to the statement
that the inspector was responding to a tip; it provided no details of surrounding circumstances,
and it was given for the limited purpose of contextual information explaining why defendant was
investigated as a suspect. Id. at 73. Therefore, we conclude that the trial court did not abuse its
discretion when it admitted this testimony.
Other acts evidence
Defendant argues that the trial court abused its discretion in allowing another mail carrier
to testify that he was also robbed and that defendant was the assailant. Defendant claims that the
proffered similarity was “merely that two mail carriers were robbed by black males with a gun”
and that the prosecutor relied on the prior robbery to prove guilt of the subsequent offense
charged. Defendant further argues that the test articulated in People v Golochowicz, 413 Mich
298, 309; 319 NW2d 518 (1982), remains valid to show logical relevance where similar acts
evidence is offered to show identification through modus operandi. Defendant relies on People v
McMillan, 213 Mich App 134, 138; 539 NW2d 553 (1995), and People v Ho, 231 Mich App
178; 186; 585 NW2d 357 (1998), to support his position.
This Court reviews a trial court’s evidentiary rulings under MRE 401 and MRE 403 for
an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 60; 614 NW2d 888 (2000);
Starr, supra. The prejudicial effect of evidence is best determined by the trial court’s
contemporaneous assessment of the presentation, credibility, and effect of the testimony.
Bahoda, supra at 291. Generally, a decision with regard to a close evidentiary question cannot
be considered an abuse of discretion. Id. at 289.
Evidence of other crimes, wrongs, or acts of an individual is inadmissible to prove a
propensity to commits such acts. MRE 404(b)(1); Sabin, supra at 55. To be admissible under
MRE 404(b), evidence of other acts must satisfy three requirements:
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First, the prosecutor must offer the other acts evidence under something
other than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third, under MRE 403, a “‘determination
must be made whether the danger of undue prejudice [substantially] outweighs the
probative value of the evidence in view of the availability of other means of proof
and other facts appropriate for making decisions of this kind under Rule 403.’”
[Sabin, supra, quoting People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114
(1993), amended 445 Mich 1205; 520 NW2d 338 (1994) (citations omitted).]
Additionally, the trial court, upon request, may provide a limiting instruction under MRE 105.
Id. at 56.
The prosecutor offered two theories of admissibility to support the admission of
defendant’s prior acts: (1) to show identification or lack of mistake, and (2) to show the existence
of a plan or scheme or method by which defendant accomplished the robberies. This satisfies the
first step in the analytical framework because MRE 404(b)(1) does not require exclusion of
otherwise admissible evidence and only prohibits the use of specific acts to prove a person’s
character. Sabin, supra. However, mere articulation of a proper purpose does not complete the
analysis because “the trial court must still determine whether the evidence under a proper theory,
has a tendency to make the existence of a fact of consequence in the case more or less probable
than it would be without the evidence.” Id. at 60; see, also, MRE 401.
In the case at bar, the offense charged was armed robbery and the prosecutor was required
to prove: (1) an assault, (2) a felonious taking of property from the victim's presence or person,
and (3) that the defendant was armed with a weapon described in the statute. People v Carines
460 Mich 750, 757; 597 NW2d 130 (1999). Here, defendant’s general denial placed all elements
of the charge at issue, Starr, supra at 501, and identity is logically relevant and necessary to
proving that defendant committed the crime charged.
The Golochowicz test for identification requires that: (1) there is substantial evidence that
the defendant committed the similar act, (2) there is some special quality of the act that tends to
prove the defendant’s identity, (3) the evidence is material to the defendant’s guilt, and (4) the
probative value of the evidence sought to be introduced is not substantially outweighed by the
danger of unfair prejudice. Ho, supra at 186; see, also, Golochowicz, supra at 309. Defendant
maintains that the analysis fails on the second prong because there are insufficient similarities in
the act to establish a special quality that proves defendant’s identity. We disagree.
The circumstances of the other acts evidence support the conclusion that the logical
relevance test is satisfied by the substantial evidence that defendant committed the earlier robbery
and that both crimes shared similar qualities. Ho, supra at 187. A review of the record suggests
a reasonable inference that both robberies were committed within fairly close geographic
proximity. Both robberies occurred at a time of optimum return because of month-end social
security checks in the mail. Both mail carriers described their assailants as a dark-complexioned,
black male. The descriptions of the color of the firearms used in the robberies differ but are,
nonetheless, sufficiently similar to conclude that they were the same weapon. This Court
concludes that the circumstances of the robbery suggest familiarity and knowledge of the area
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and were conclusive of a signature pattern that supports identification. Likewise, the evidence
also is admissible under MRE 404(b) because it is “logically relevant to show that the charged
act occurred where the uncharged misconduct and the charged offense are sufficiently similar to
support an inference that they are manifestations of a common plan, scheme, or system.” Sabin,
supra at 63.
Next, the inquiry turns to a determination under MRE 403 of whether, although relevant,
the evidence may be excluded because its probative value is substantially outweighed by the
danger of unfair prejudice. Prejudice has been defined as meaning more than simply damage to
an opponent’s cause and includes an undue tendency to move the tribunal to decide on an
improper basis, commonly, an emotional one. People v Vasher, 449 Mich 494, 501; 537 NW2d
168 (1995).
The trial court in admitting the evidence determined that the prejudicial effect of its
admission was outweighed by the probative effect on the issues of identification, plan, and
scheme. We agree. The issue of identification was contested by defendant; consequently, the
prosecutor was required to support the complainant’s identification. Because both mail carriers
positively identified defendant and the robberies were sufficiently similar to support the
identifications, we conclude that the prejudicial effect did not substantially outweigh its probative
value, so the trial court did not abuse its discretion by allowing the testimony.
Reasonable doubt instruction
Defendant argues that the trial court’s instructions undercut the burden of proof by
suggesting that the jurors had a duty to articulate and justify their doubts to the other jurors.
People v Foster, 175 Mich App 311, 319; 437 NW2d 395 (1989), overruled in part on other
grounds sub nom People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995); People v Jackson,
167 Mich App 388, 391; 421 NW2d 697 (1988). To withstand a constitutional challenge, a
reasonable doubt instruction when read in its entirety must leave no doubt in the mind of the
reviewing court that the jury understood the prosecutorial burden of proof and what constituted a
reasonable doubt. People v Hubbard,(After Remand), 217 Mich App 459, 487; 552 NW2d 493
(1996); Jackson, supra.
Because this issue was not preserved, defendant must show that: (1) an error occurred, (2)
the error was plain, i.e., clear and obvious, and (3) the plain error affected substantial rights.
Carines, supra at 763. It is impermissible for instructions defining reasonable doubt to shift the
burden of proof by requiring the jurors to have a reason to doubt the defendant’s guilt. Jackson,
supra. Instead, what is required is that the instructions must convey that a reasonable doubt is an
honest doubt based on reason. Id.
In a prior case, this Court determined that prosecutorial comments that reasonable doubt
required that the doubt have a reason did not misinform the jury. People v Lee, 212 Mich App
228, 254; 537 NW2d 233 (1995). Taken in context, the court’s statement, “[t]hat you can assign
a reason for having,” did not impermissibly require articulation or justification of the reason for
the jurors’ doubt, but instead implied that the doubt should be related to the evidence or lack of
evidence.
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Suppression of identification evidence
On October 22, 1998, a Wade hearing was held where defendant challenged both the
photographic array and a later corporeal lineup in which he was positively identified. Defendant
argues that the cumulative effect of the testimony showed uncertainty in the identification and
that there was clear error in allowing this evidence because it was prejudicial and affected the
outcome of the trial. We disagree. Review of a trial court’s decision to admit identification
evidence is considered under a clearly erroneous standard. People v Kurylczyk, 443 Mich 289,
303 (Griffin, J.), 318 (Boyle, J.); 505 NW2d 528 (1993); People v Colon, 233 Mich App 295,
304; 591 NW2d 692 (1998). Clear error exists where the reviewing court is left with a definite
and firm conviction that a mistake was made, Kurylczyk, supra, and warrants reversal only when
the error is not harmless beyond a reasonable doubt, People v Hampton, 138 Mich App 235, 239;
361 NW2d 3 (1984). When reviewing pretrial identification procedures, this Court evaluates the
fairness and suggestiveness of identification procedures in the light of the total circumstances.
Kurylczyk, supra at 311-312 (Griffin, J.), 318 (Boyle, J.); People v Doursey Lee, 391 Mich 618,
626; 218 NW2d 655 (1974). The test is whether the procedure was so impermissibly suggestive
that there is a substantial likelihood of misidentification. Kurylczyk, supra at 306 (Griffin, J.),
318 (Boyle, J.). Factors to consider include the opportunity of the witness to view the defendant
at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation. Id. at 306, 309
(Griffin, J.), 318 (Boyle, J.).
Defendant maintains that the pretrial photographic array used to identify him was unduly
suggestive because his photograph was the only one with the hands showing and the complainant
could immediately exclude nine of the twelve photographs. Simply because an identification
procedure is suggestive does not render it constitutionally defective. Id. at 306 (Griffin, J.), 318
(Boyle, J.); Colon, supra. Likewise, differences in the composition of photographs and in
physical characteristics of the individual photographed have been found not to render a lineup
impermissibly suggestive. Kurylczyk, supra at 304-305 (Griffin, J.), 318 (Boyle, J.).
The circumstances of the challenged identification are sufficient to withstand
constitutional scrutiny because defendant’s identity was imprinted by (1) a preliminary encounter
where defendant greeted the complainant, and (2) observation of her assailant from a distance of
two feet for the approximately three- to four-minute duration of the robbery. The length of time
between the robbery and the photographic array was only a matter of weeks. Given the nature of
the robbery and the complainant’s statement that she was focused on the incident itself and
looked directly into defendant’s face, allows a conclusion that the length of time between the
robbery and the identification was insufficient to detract from its reliability. People v
McElhaney, 215 Mich App 269, 287; 545 NW2d 18 (1996). The photographic array was neither
unduly suggestive nor did it allow a substantial likelihood of misidentification that would
implicate due process concerns.
Defendant also challenges the suggestiveness of a later corporeal lineup. Like the
photographic lineup, the corporeal lineup must be examined in light of the totality of its
circumstances. Kurylczyk, supra at 311-312 (Griffin, J.), 318 (Boyle, J.). Differences among
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participants are significant only if they are apparent to the witness and substantially distinguish
the defendant to the extent that there exists a substantial likelihood that these differences, rather
than recognition of the defendant, were the basis of the identification. Id. at 312 (Griffin, J.), 318
(Boyle, J.). If counsel was present at the lineup, then the defendant bears the burden of showing
that the lineup was impermissibly suggestive. McElhaney, supra at 286. Defendant fails to meet
this burden. All participants in the lineup were uniformly identified as “black males, medium
complexion . . . [, dressed in] jail greens.” The complainant took approximately one minute to
identify defendant as her assailant, explaining later that she picked out defendant because “[h]e
was the person that I best recalled in my mind of the person that robbed me. He fit the
description in my mind.” We find no support for defendant’s argument that the lineup was
unduly suggestive.
Prosecutorial misconduct
Defendant next claims that he was denied a fair trial because the prosecutor denigrated
defense counsel and vouched for a key prosecution witness. Appellate review of allegedly
improper remarks is precluded if the defendant fails to timely and specifically object unless an
objection could not have cured the error or a failure to review the issue would result in a
miscarriage of justice. People v Kelly, 231 Mich App 627, 638; 588 NW2d 480 (1998).
This Court reviews unpreserved claims of prosecutorial misconduct for plain error.
People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). Instances of prosecutorial
misconduct are decided case by case, and this Court must examine the pertinent portion of the
record and evaluate the prosecutor’s remarks in context. Id. at 721. Reversal is warranted only
when a plain error affected substantial rights and resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings. Carines, supra at 763, 774; Schutte, supra at 720.
After reviewing the record, we conclude that defendant’s allegations of prosecutorial
misconduct are unsubstantiated because the prosecutor’s comments, when taken in context, were
a fair rebuttal to defendant’s theory of the case and did not rise to a level sufficient to deny
defendant a fair and impartial trial.
Cumulative Error
Defense counsel argues that even if the errors set forth on appeal do not warrant reversal
individually, when taken together they constitute reversible misconduct because their cumulative
and prejudicial effect denied defendant a fair trial. Regarding “alleged cumulative error,” “the
test to determine whether reversal is required is not whether there are some irregularities, but
whether defendant has had a fair trial.” People v Duff, 165 Mich App 530, 539; 419 NW2d 600
(1987). Because we find no error, defendant’s right to a fair trial has not been denied. Id.; see,
also, People v Daoust, 228 Mich App 1, 16; 577 NW2d 179 (1998). Consequently, reversal of
defendant’s conviction is not warranted on the basis of cumulative error.
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Sentencing Issues
Defendant next claims that his sentence was excessively disproportionate. He also claims
that the use of erroneous guidelines scoring requires a remand for resentencing. This Court
reviews sentencing decisions for an abuse of discretion. People v Milbourn, 435 Mich 630, 635636; 461 NW2d 1 (1990); People v McCrady, 213 Mich App 474, 483; 540 NW2d 718 (1995).
A sentence constitutes an abuse of discretion if it is disproportionate to the seriousness of the
circumstances surrounding the offense and the offender. Milbourn, supra at 636. Departures
from the sentencing guidelines’ range are permitted, but are suspect and subject to scrutiny on
appeal. Id. at 656-657; People v Rockey, 237 Mich App 74, 79; 601 NW2d 887 (1999).
“Permissible factors that may be considered by the court when imposing a sentence include the
severity and nature of the crime, the circumstances surrounding the criminal behavior, the
defendant’s attitude toward his criminal behavior, the defendant’s social and personal history,
and the defendant’s criminal history, including subsequent offenses.” People v Oliver, 242 Mich
App 92, 98; 617 NW2d 721 (2000).
In the present case, the trial court based its departure from the guidelines on defendant’s
prior conviction involving possession of a loaded handgun. The trial court considered the instant
offense particularly serious in light of the fact that defendant was still on probation at the time the
present offense was committed and also considered the social impact of robbing a United States
postal worker, identifying it as an attack on the United States. Based on these factors, the trial
court properly concluded that the guidelines’ recommendation would not adequately serve as a
deterrent or protect the public and that an upward departure from the guidelines’
recommendation of thirty-six to ninety-six months was justified.
Review of guidelines’ calculations is limited. A sentencing court has discretion in
scoring provided that there is evidence on the record that adequately supports a particular score.
People v Cain, 238 Mich App 95, 129; 605 NW2d 28 (1999). The analytical framework requires
that a sentence must be overturned and new sentencing ordered only where (1) the factual
predicate is wholly unsupported, (2) a factually predicate is materially false, and (3) the sentence
is disproportionate. Id. at 131. Because the sentence was proportionate, this Court need not
address the issue challenging the guidelines’ scoring.
Determinate Sentencing
Defendant urges this Court to find, in contravention of previously decided cases, that the
Michigan Constitution, by expressly authorizing indeterminate sentencing in Article 4, § 45,
prohibits determinate sentencing such as the two-year mandatory incarceration for felonyfirearm. MCL 750.227b; MSA 28.424(2). Moreover, defendant requests that we indicate in the
text of our opinion our disagreement with People v Cooper, 236 Mich App 643, 660-664; 601
NW2d 409 (1999), pursuant to MCR 7.215(H)(2). We decline to do so.
This Court has consistently ruled that although the Michigan Constitution authorizes only
indeterminate sentences, it includes no prohibition against a statute requiring determinate
sentencing as punishment for a crime. Cooper supra at 661; Snider, supra at 426. Because
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defendant has raised no new arguments in this regard, the rules of constitutional construction and
stare decisis require that the decision of the trial court be affirmed.
We affirm.
/s/ Jane E. Markey
/s/ Gary R. McDonald
/s/ Kirsten Frank Kelly
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