PEOPLE OF MI V RAMARO A RICKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 21, 2001
Plaintiff-Appellee
v
RAMARO A. RICKS, a/k/a RAMANO AKIME
RICKS,
No. 221282
Wayne Circuit Court
LC No. 98-012430
Defendant-Appellant.
Before: Hoekstra, P.J., and Saad and Whitbeck, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions of second-degree murder, MCL
750.317, and possession of a firearm during the commission of a felony, MCL 750.227b. The
trial court sentenced defendant to consecutive terms of twenty-five to forty-five years’
imprisonment for the second-degree murder conviction and two years’ imprisonment for the
felony-firearm conviction. We affirm.
Defendant claims that his convictions must be reversed because the record regarding his
waiver of a jury trial is inadequate. An examination of the proceedings with respect to
defendant’s waiver of a jury reveals that defendant and his attorney signed a waiver of jury trial
form1 on May 11, 1999.2 The following day, May 12, 1999, defendant, his attorney, and the
prosecutor appeared before the trial court for the purpose of placing defendant’s waiver of jury
trial on the record. At that hearing the following record was made:
1
Defendant’s signature appears on the waiver of trial by jury form dated May 11, 1999, under
the following statements:
I, having had an opportunity to consult with counsel, do hereby in open Court
voluntarily waive ansd [sic] relinquish my right to a trial by jury and elect to be
tried by a judge of the above named Court, in which this cause is pending.
I fully understand that I have a constitutional right to a trial by jury.
2
The record is not clear with regard to what occasioned the signing and entry of the waiver form
on May 11, 1999. No transcript of the proceedings that day is filed.
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DEFENSE COUNSEL: Good morning, your Honor. We’re here to place a waive
[sic] of jury trial on the record.
THE COURT: Prosecution have any objection?
PROSECUTING ATTORNEY: No, your Honor.
THE COURT: Mr. Ricks, you’ve signed this waiver of your right to a jury trial.
Is that correct?
DEFENDANT RICKS: Yes.
THE COURT: You understand, sir, that as a defendant in this case, you have the
right to make a decision of whether you have a trial by me or a trial by jury?
DEFENDANT RICKS: Yes.
THE COURT: And have you had enough time to think about this and to talk to
your attorney about it?
DEFENDANT RICKS: Yes, I have talked to my attorney.
THE COURT: Okay. You understand that any finding of guilt or innocence by
me has the same force and effect as a decision by a jury?
DEFENDANT RICKS: Yes, ma’am.
THE COURT: And you said you’ve talked to your attorney, but have you had
enough time to think about this?
DEFENDANT RICKS: I had basically had my mind set for a jury, but by me
talking to my attorney – can I have a little more time to think, a day or two?
THE COURT: Okay. You understand your trial is scheduled for tomorrow?
DEFENDANT RICKS: Yes.
THE COURT: So you can have until tomorrow to think about it.
DEFENDANT RICKS: Until tomorrow? Yes, ma’am, that would be fine.
THE COURT: Okay. See you tomorrow.
Defendant next appeared before the trial court on May 19, 1999. On that day, the trial court
announced that defendant was present for trial by waiver. At the outset of the proceedings on the
19th, no one addressed the issue of defendant’s decision to proceed with a bench trial. The case
was tried to conclusion before the court, without any further mention of the issue.
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On this record, defendant maintains that the trial court failed to comply with the
requirements of MCR 6.402(B). Specifically, defendant alleges that when the trial court gave
defendant additional time to think about whether he wished to be tried in a bench trial and then
failed to revisit that issue before proceeding with the trial itself some days later, the court failed
to obtain on the record a statement from defendant that he was voluntarily choosing to relinquish
his right to be tried before a jury as required by the court rule. “We review the validity of a
defendant's waiver for clear error.” People v Taylor, 245 Mich App 293, 305, n 2; 628 NW2d 55
(2001), citing People v Leonard, 224 Mich App 569, 595; 569 NW2d 663 (1997).
MCR 6.402(B) states:
Before accepting a waiver, the court must advise the defendant in open
court of the constitutional right to trial by jury. The court must also ascertain by
addressing the defendant personally, that the defendant understands the right and
that the defendant voluntarily chooses to give up that right and to be tried by the
court. A verbatim record must be made of the waiver proceeding.
We agree with defendant that on the facts of this case the trial court failed to comply with
the strict requirements of the court rule. When the trial court graciously afforded defendant
additional time to consider whether he wished to forgo his right to a jury trial, it allowed for the
possibility that a mistake could be made in this process, and a mistake, in fact, occurred. The
trial court failed to revisit the waiver issue before proceeding with a nonjury trial. In this
context, clearly the trial court failed to address the defendant personally and obtain an
unequivocal statement from him that he desired to voluntarily waive his right to a jury trial and
to be tried by the court. MCR 6.402(B)
This error, however, does not necessitate reversal of defendant’s convictions. The error
in this case is constitutional, US Const, Am VI; Const 1963, art 1, § 20, but it is unpreserved. At
no time did defendant register an objection to proceeding without a jury. Therefore, defendant’s
claim on appeal is subject to review as forfeited constitutional error. People v Carines, 460 Mich
750, 763-764, 774; 597 NW2d 130 (1999). To prevail a defendant must show plain error that
affected his substantial rights. Id. at 763. If a defendant succeeds in showing plain error
affecting his substantial rights, then this Court must exercise its discretion in deciding whether to
reverse. Id. “Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
Id., quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 LE2d 508 (1993)
(internal quotations omitted).
Here, we find that defendant easily establishes plain error affecting his substantial rights.
However, we cannot say that defendant is actually innocent or that the error seriously affected
the judicial proceedings. Later in this opinion we address and reject defendant’s claims that the
evidence was insufficient and that the verdict was contrary to the great weight of the evidence.
The evidence, in fact, persuasively shows that defendant is guilty.
The analysis regarding whether this error seriously affected the judicial process is more
difficult. We are not unmindful of the fundamental constitutional right at stake here. US Const,
Am VI; Const 1963, art 1, § 20. Nevertheless, we believe that neither the fairness, integrity nor
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public reputation of the judicial process was seriously affected by what happened in this case.
We have already alluded to the fact that the circumstances that gave rise to this error were a
consequence of the trial court proceeding in a manner intended to benefit defendant. The trial
court gave defendant additional time to consider his position. Defendant had already signed a
waiver. On May 12, the trial court clearly explained to defendant his rights and the
consequences of waiver. The only step left was a statement in agreement in open court. That
step never occurred when the proceedings resumed. However, we believe that the fact that the
case proceeded without any objection from defendant about the trial being conducted without a
jury speaks volumes. The obvious implication is that defendant was either receiving the type of
trial he desired or he was harboring error in the record. In either event, he is entitled to no relief.
Obviously, if it was his intention to be tried before the court rather than a jury, he has no claim
for relief. Regarding harboring error, this Court has stated in other circumstances that a
defendant who engages in such a practice is entitled to no relief. See People v Fetterley, 229
Mich App 511, 520; 583 NW2d 199 (1998) (“To hold otherwise would allow defendant to
harbor error as an appellate parachute.”). Under these circumstances, we believe the only
possible attack on the fairness, integrity or public reputation of judicial proceeding would be if
we held this error to be one requiring reversal. Consequently, we hold this error harmless and
grant defendant no relief.
Next, we address an issue raised in defendant’s pro se supplemental brief that alleges that
the evidence at trial was insufficient to support his conviction for second-degree murder.
Specifically, defendant claims that the proofs did not establish that his weapon was used to kill
the victim and that the trial court’s findings of fact were not supported by the evidence.
Due process requires that the prosecution introduce sufficient evidence that could justify
a trier of fact in concluding that the defendant is guilty beyond a reasonable doubt. People v
Fisher, 193 Mich App 284, 287; 483 NW2d 452 (1992). “When reviewing a claim of
insufficient evidence following a bench trial, this Court must view the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could have found that
the essential elements of the crime were proven beyond a reasonable doubt.” People v Hutner,
209 Mich App 280, 282; 530 NW2d 174 (1995).
The elements of second-degree murder are “‘(1) a death, (2) caused by an act of the
defendant, (3) with malice, and (4) without justification or excuse.’” People v Mayhew, 236
Mich App 112, 125; 600 NW2d 370 (1999), quoting People v Goecke, 457 Mich 442, 463-464;
579 NW2d 868 (1998). Circumstantial evidence and reasonable inferences arising therefrom
may be sufficient to prove the elements of a crime. People v McRunels, 237 Mich App 168, 181;
603 NW2d 95 (1999). In reviewing a sufficiency argument, this Court must not interfere with
the trier of fact’s role in determining the credibility of witnesses. People v Wolfe, 440 Mich 508,
514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
First, we dispense with the notion that the prosecution must prove that defendant’s
weapon was the murder weapon. Defendant does not challenge on appeal his presence at the
scene, nor does he maintain that he was unarmed. What he does claim is that the evidence failed
to show that his weapon fired the fatal shot and argues that this fact establishes that the evidence
is insufficient to convict him of murder. However, defendant offers no support, nor can he, for
the proposition that proof that his weapon fired the fatal shot is an essential element of the crime
of murder. To the contrary, the prosecution is not required to produce the actual murder weapon
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in order to convict an individual of second-degree murder. Mayhew, supra; see People v
Saunders, 189 Mich App 494, 495-496; 473 NW2d 755 (1991).
Additionally, defendant expends considerable effort pointing out the weaknesses and
inconsistencies in the testimony of the three eyewitnesses to the crime. This is not a difficult
task. We readily admit that the proofs in this case are littered with contractions, inconsistencies,
and gaps in the timeline. Alone, however, such circumstances do not mandate a finding that the
evidence is insufficient. These circumstances merely create credibility issues that the fact-finder
must resolve and that we will not resolve anew on appeal. MCR 2.613(C); People v Givans, 227
Mich App 113, 123-124; 575 NW2d 84 (1997).
Clearly, the evidence in this case, when viewed in a light most favorable to the
prosecution, could lead a rational trier of fact to conclude that the prosecution proved the
essential elements of the crime beyond a reasonable doubt. Hutner, supra. The thread of the
testimony of the three eyewitnesses is that a minor disturbance occurred between the victim and
defendant while in a store. They exited the store after the incident together, where the interaction
escalated between them, and led to defendant producing a gun and pointing it at the victim. A
witness attempted to pull the victim into the store, but at that time defendant shot the victim in
the leg. The gunshot severed the victim’s femoral artery and he bled to death. This evidence, if
believed, proved defendant’s guilt beyond a reasonable doubt of the charge of second-degree
murder.
We also reject defendant’s assertion that the trial court’s fact findings were clearly
erroneous. Specifically, defendant argues that the trial court erred in finding that defendant shot
the victim because the testimony of eyewitnesses was inconsistent with their preliminary
examination testimony and with each other’s testimony. However, this Court gives deference to
the trial court’s special opportunity to judge the credibility of the witnesses. MCR 2.613(C).
This Court will not resolve questions of credibility anew on appeal. Givans, supra. Findings of
fact are clearly erroneous if, after review of the entire record, this Court is left with a definite and
firm conviction that a mistake was made. People v Hermiz, 235 Mich App 248, 255; 597 NW2d
218 (1999), aff’d on other grounds 462 Mich 71 (2000). We have reviewed the trial court’s
findings and, upon review of the record and in light of our deferential standard of review, we
conclude that no error exists that would entitle defendant to any appellate relief.
Further, we find without merit defendant’s claim that the verdict in this case was against
the great weight of the evidence. Defendant predicates this argument on the confusing and
contradictory testimony of George Jones, an eyewitness, and, relying on People v Lemmon, 456
Mich 625, 642-643; 576 NW2d 129 (1998), asserts that this testimony has so little probative
value that it would be a miscarriage of justice to allow the verdict to stand.
Conflicting testimony or questions of credibility are sufficient grounds for granting a new
trial only if the impeached testimony was deprived of all probative value. Lemmon, supra. Here,
after reviewing the evidence that defendant maintains is without probative value, we are not
persuaded that the verdict in this case is based upon evidence that is devoid of probative value.
Again, although there were weaknesses in the witness’s testimony, we do not find them to be
exceptional. This incident transpired rapidly and unexpectedly. It is not surprising that the
witness had difficulty reconstructing the events and that his testimony was somewhat
inconsistent, or even that his trial testimony varied in some respects with his preliminary
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examination testimony. Nevertheless, taken as a whole, this witness’s testimony, along with all
the other evidence in the case, establishes defendant’s guilt. Further, and most importantly to
this claim, we believe that this witness’s testimony was not impeached to the point of being
without any probative value. Although his testimony was impeached, the prosecution
rehabilitated his testimony through prior statements and testimony that were consistent with his
testimony at trial. Additionally, the other witnesses provided testimony that was predominantly
consistent with Jones’ testimony. Also, the location of the gunshot wound was consistent with
his testimony that he tried to pull the victim into the store and that the victim was shot as they
tried to do so. Consequently, the evidence does not preponderate heavily against the verdict so
that it would be a miscarriage of justice to allow the verdict to stand. Id. at 627.
Defendant’s final claim, raised in his supplemental pro se brief, is that the trial court
admitted false and perjured testimony. Defendant maintains that much of the testimony of
George Jones should have been excluded for this reason. We review a trial court’s decision to
admit or exclude evidence for an abuse of discretion. People v Herndon, 246 Mich App 371,
406; 633 NW2d 376 (2001). We categorically reject defendant’s argument. Merely because
defendant vigorously attacked this witness’s testimony at trial regarding its credibility is not a
sufficient basis to say that the testimony is perjured and must be excluded. The trial court did
not abuse its discretion in admitting the challenged testimony of this witness.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Henry William Saad
/s/ William C. Whitbeck
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