PEOPLE OF MI V GEOFFREY EMANUEL THOMAS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 11, 2002
Plaintiff-Appellee,
v
No. 230384
Oakland Circuit Court
LC No. 99-167032-FC
GEOFFREY EMANUEL THOMAS,
Defendant-Appellant.
Before: Murphy, P.J., and Jansen and Kelly, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree felony murder, MCL
750.316(1)(b), first-degree fleeing and eluding a police officer, MCL 750.479a(5), and failure to
stop at the scene of a serious personal injury accident, MCL 257.617. Defendant was sentenced,
as a fourth-offense habitual offender, MCL 769.12, to the mandatory term of life imprisonment
without parole for the first-degree felony murder conviction, a term of twelve to twenty years for
the first-degree fleeing and eluding conviction, and a term of five to fifteen years for the failure
to stop at the scene of a serious personal injury accident conviction. Defendant appeals as of
right and we affirm.
I
This case involves the theft of two vehicles that resulted in a brief police chase and a fatal
collision, the scene from which defendant fled on foot. On March 31, 1999, police saw a red van
crossing a red traffic light on Fourteen Mile Road, east of Rochester Road, in the city of
Clawson. The red van was pushing a small gray car. The patrol unit initiated its overhead lights
and pulled up behind the red van. The van pushed the car into a parking lot on the north side of
the road, and continued to drive east on Fourteen Mile Road. Before reaching Rochester Road,
the van made a u-turn in what appeared to be a move to return to the gray car. Although the
police officer had established eye contact with the van’s driver, and the police car’s overhead
lights were still on, the van did not stop. Instead, it paused at the parking lot where it had pushed
the gray car, and then made another u-turn, again heading eastbound on Fourteen Mile Road.
Unable to successfully complete the u-turn, the van drove over the curbs, sidewalks, and front
yard lawns of the houses on the south side of Fourteen Mile Road. The van then headed south on
Rochester Road. The police car followed with sirens and overhead lights.
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Thirty-one-year-old Amy Aplin was driving in a lane ahead of the van. She stopped at
that lane to make a left turn onto her residential street. The van, instead of slowing down, moved
to the northbound lane, increased its speed to over sixty miles an hour, and drove south in the
northbound lane. The van struck Aplin’s car that was turning left, instantly killing Aplin, and
pushing her car about one hundred feet to the southeast corner of Rochester Road and Montrose
Avenue. The driver fled the scene into the Royal Oak neighborhood east of Rochester Road, and
was seen by different witnesses who observed his erratic behavior in running, entering
backyards, jumping fences, breathing heavily, and looking over his shoulder toward Rochester
Road. He was apprehended ten minutes after the collision.
II
Defendant first argues that the evidence was insufficient to support his felony murder
conviction. Specifically, defendant asserts that the evidence was insufficient to establish malice
or to prove the elements of larceny for purposes of felony murder.
The test for determining whether sufficient evidence was presented to support a criminal
conviction is whether the evidence, viewed in a light most favorable to the prosecution, would
warrant a rational factfinder in finding that the essential elements of an offense were proven
beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
Felony murder consists of the following elements: (1) the killing of a human being, (2)
with malice, (3) while committing, attempting to commit, or assisting in the commission of any
of the felonies specifically enumerated in the felony murder statute, MCL 750.316. Id. at 401.
Malice is defined as (1) the intent to kill, (2) the intent to do great bodily harm, or (3) the intent
to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm. People v Goecke, 457 Mich 442, 464; 579
NW2d 868 (1998). It is the third definition of malice that is at issue in this case.
Viewed in a light most favorable to the prosecution, the evidence adduced at trial was
sufficient for the jury to reasonably infer that defendant placed himself in a position, the results
of which a reasonable person would know, had the natural tendency to cause death or great
bodily harm. Id. at 471-472. The evidence adduced at trial was also sufficient for the jury to
rely solely on common sense and personal driving experiences to infer that defendant knew of
the very high risk of death or great bodily harm that would result from driving over sidewalks
and front yard lawns of residential houses, and from driving over sixty miles an hour in the lane
of opposite traffic. A reasonable inference may be made that defendant simply took a fatally
dangerous risk by miscalculating that the car ahead of him would have cleared the northbound
speed lane before he reached it. Viewing the evidence in a light most favorable to the
prosecution, the evidence was sufficient to support the jury’s verdict.
Defendant relies on four different cases1 and argues that the fact he accelerated the speed
of the van was insufficient for a finding of malice to satisfy the second element of felony murder
1
The four cases are People v Goecke, 457 Mich 442, 464; 579 NW2d 868 (1998); People v
Vasquez, 129 Mich App 691; 341 NW2d 873 (1983); People v Goodchild, 68 Mich App 226;
242 NW2d 465 (1976); and People v Hoss, unpublished opinion per curiam of the Court of
(continued…)
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because there was proof that he attempted to avoid the collision when he applied the brakes.
Defendant argues that the most he could have been convicted of was second-degree murder.
Defendant’s reliance on these cases is misplaced. These cases showed that the state of mind of
the respective defendants were affected by intoxication, mental and physical illness, or lack of an
intent to permanently deprive the rightful owner of possession. There was no evidence in this
case to that effect.
Defendant next argues that the evidence was insufficient for a finding of larceny.
Defendant asserts that, instead, the evidence regarding the red van he was driving only proves
that he was guilty of unlawfully driving away an automobile (UDAA), while the evidence
regarding the gray car that he had pushed into a parking lot shows that defendant may have been
merely assisting a stranded motorist.
In cases involving the taking of an automobile, if the prosecution believes that the
evidence so warrants, it has discretion to charge the suspect either with UDAA or with larceny.
People v Goodchild, 68 Mich App 226, 233-234; 242 NW2d 465 (1976). The essential elements
of larceny are: (1) an actual or constructive taking of goods or property; (2) a carrying away or
asportation; (3) the carrying away must be with a felonious intent; (4) the subject matter must be
the goods or personal property of another; and (5) the taking must be without the consent and
against the will of the owner. People v Cain, 238 Mich App 95, 120; 605 NW2d 28 (1999).
Larceny requires that the defendant intend to permanently deprive the victim of the property
which is the subject of the larceny. People v Murph, 185 Mich App 476, 480-481; 463 NW2d
156 (1990). UDAA, on the other hand, does not require an intent to permanently deprive the
owner of his property. Id. at 481.
Here, the evidence adduced at trial showed that at least twenty minutes after the red van
was stolen from a parking lot, and only a few miles away, it was seen pushing what turned out to
be another stolen vehicle with a dead battery. The short time frame and distance in which the red
van was seen after having been stolen, the fact that it was pushing another stolen car, coupled
with the fact of defendant’s brief return to the stolen car when defendant was being followed by
a police car provided sufficient evidence for a finding that, for purposes of larceny, defendant
intended to deprive from possession the rightful owners of either the van or the car, or both.
Defendant argues, however, that it may be inferred from the evidence that he was merely
acting as a Good Samaritan, assisting a stranded driver. Even assuming that such an inference
could have been reasonably made, the prosecution was not required to negate every reasonable
theory of innocence, but was only required to prove its own theory beyond a reasonable doubt in
the face of whatever contradictory evidence defendant provided. Nowack, supra at 400. At trial,
defendant provided no contradictory evidence. Consequently, there was sufficient evidence
presented by the prosecution to sustain the underlying offense of larceny for the felony murder
conviction.
(…continued)
Appeals, issued October 31, 1997 (Docket No. 195661).
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III
Defendant next argues that the prosecutor overcharged him. Defendant failed to preserve
the issue of prosecutorial overcharge because it was not raised before the trial court. See People
v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). This Court reviews unpreserved
constitutional claims of error for plain error that affected the defendant’s substantial rights.
People v Carines, 460 Mich 750, 761-764; 597 NW2d 130 (1999).
It is well settled that “the decision whether to bring a charge and what charge to bring lies
in the discretion of the prosecutor.” People v Venticinque, 459 Mich 90, 100; 586 NW2d 732
(1998). The prosecutor is given broad charging discretion, and judicial review of the exercise of
that discretion is limited to whether an abuse of power occurred, i.e., whether the charging
decision was made for reasons that are unconstitutional, illegal, or ultra vires. People v Conat,
238 Mich App 134, 149; 605 NW2d 49 (1999).
Here, defendant’s contention that the prosecution overcharged him is premised solely on
the same arguments that defendant raised regarding the sufficiency of the evidence, and we reject
them for the same reasons. The evidence was sufficient for a finding of malice on the part of
defendant for purposes of murder, and the evidence was sufficient for a finding of defendant’s
intent to permanently deprive either the van owner or the car owner of their possession for
purposes of larceny. Therefore, the prosecution, in charging defendant with felony murder, did
not abuse its charging discretion.
IV
Defendant also challenges the prosecutor’s comments during closing argument regarding
a baseball cap that defendant was allegedly wearing at the time of his arrest, but was not
admitted into evidence because of the prosecutor’s failure to establish the chain of custody.
Defendant failed to preserve the issue because no objection was made in the trial court to the
prosecutor’s comments. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). A
defendant’s unpreserved claim of prosecutorial misconduct is reviewed for plain error. People v
Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). In order to avoid forfeiture of an
unpreserved claim, the defendant must demonstrate plain error that affected his substantial rights.
Id., quoting Carines, supra at 763.
Prosecutors cannot make statements of fact unsupported by the evidence, but remain free
to argue the evidence and all reasonable inferences arising from it as they relate to the theory of
the case. Schutte, supra at 721. Our review of the prosecutor’s remarks, in context, reveals that
the prosecutor was merely summarizing the facts in evidence, as testified to by several witnesses,
and encouraging the jury to draw reasonable inferences from those facts. Four witnesses at trial
testified to seeing defendant wearing a baseball cap; therefore, the prosecutor’s comments were
based on witness testimony. Further, we note that the jury was properly instructed on the
definition of evidence, particularly excluded evidence. Because the prosecutor’s comments at
closing argument about the baseball cap were based on the testimony of four witnesses, the
prosecutor’s comments were not improper and defendant has failed to show plain error affecting
his substantial rights.
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V
Lastly, defendant argues that he was denied the effective assistance of counsel because
trial counsel failed to call an expert witness to explain the fallibility of eyewitness identification
and also failed to request a supplemental jury instruction regarding the issue of identification.
Defendant did not move for a new trial or for an evidentiary hearing below; therefore, our review
of the issue is limited to the record on appeal. People v Sabin (On Second Remand), 242 Mich
App 656, 658-659; 620 NW2d 19 (2000). In order to establish a claim of ineffective assistance
of counsel, a defendant has the burden of establishing that his counsel’s representation fell below
an objective standard of reasonableness and that the deficient representation was so prejudicial
that the defendant was denied a fair trial. People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000).
With regard to counsel’s failure to call an expert witness to explain the fallibility of
eyewitness identification, we first note that the decision whether to call a witness is presumed to
be a matter of trial strategy. People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997).
Defendant stresses that the prosecutor relied heavily on eyewitness testimony to establish that
defendant was the driver of the red van; however, our review of the eyewitness testimony reveals
that it was consistent, contrary to defendant’s claim. Importantly, the record shows that the
residential neighborhood witnesses were particularly consistent in describing what they noticed
most about the man they saw in the area: his erratic behavior. He was running, breathing
heavily, sweating, crossing through private backyards, jumping over fences, and looking over his
shoulder toward Rochester Road. At one point, he knocked on the door of one witness’ house,
but then walked away when the witness approached him from the back door. Other evidence
offered at trial was a shoe print found in the red van that matched defendant’s shoe. Defendant’s
statements to the police immediately before his arrest provided additional circumstantial
evidence from which an inference could have been made that he was the perpetrator of the crime
because he provided the police with a false name and a false birth date. Any inconsistencies in
the eyewitness’ testimony could have been, and were, attacked on cross-examination. Therefore,
counsel’s failure to call an expert witness regarding eyewitness identification was neither
deficient nor prejudicial to defendant.
Defendant also argues that counsel failed to request an additional jury instruction
regarding eyewitness identification. There is nothing in the record to indicate any unusual
circumstance that would require additional attention to the matter in the instant case. The
inconsistencies in the testimony regarding the color of defendant’s shirt, along with counsel’s
competent cross-examination, was sufficient to place doubt in the minds of the jurors regarding
the reliability of the testimony identifying defendant as the perpetrator of the crime.
Consequently, the standard jury instructions were sufficient to protect defendant’s rights. Our
review of the record does not support defendant’s claim that an additional jury instruction
regarding eyewitness testimony may have changed the outcome of the proceeding. Accordingly,
defendant was not denied the effective assistance of counsel.
Affirmed.
/s/ William B. Murphy
/s/ Kathleen Jansen
/s/ Kirsten Frank Kelly
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