PEOPLE OF MI V TRAMEL PORTER SIMPSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 18, 2003
Plaintiff-Appellee,
v
No. 242305
Genesee Circuit Court
LC No. 02-009232-FC
TRAMEL PORTER SIMPSON,
Defendant-Appellant.
Before: Talbot, P.J., and Owens and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree felony murder, MCL
750.316; second-degree murder, MCL 750.317; armed robbery, MCL 750.529; two counts of
assault with intent to commit murder, MCL 750.83; and carjacking, MCL 750.529a. He was
sentenced to concurrent prison terms of life without parole for the first-degree murder
conviction, thirty-five to seventy years for the second-degree murder conviction, and twenty to
forty years each for the armed robbery, assault, and carjacking convictions. He appeals as of
right. We affirm defendant’s convictions for first-degree felony murder, assault with intent to
commit murder, and carjacking, but vacate his convictions and sentences for second-degree
murder and armed robbery.
Defendant’s convictions arise from events that took place at the Thrift City Bar in Flint,
Michigan, on July 19, 2001, during which defendant accompanied codefendant Antwain Johnson
when Johnson fired shots killing Beatrice DuBarry, and injuring Betty Asaro and Scott Mooney,
during the course of an alleged robbery or larceny at the bar. Afterward, defendant and Johnson
fled the scene, forced Diane and Edward Jankowiak out of a nearby car, and took their vehicle.
I
On appeal, defendant first argues that the trial court erred in denying his motion for a
directed verdict with regard to the first-degree felony murder charge. We disagree.
When reviewing a trial court’s decision on a motion for a directed verdict, this Court
reviews the record de novo to determine whether the evidence presented by the prosecutor,
viewed in the light most favorable to the prosecution, could persuade a rational trier of fact that
the essential elements of the crime charged were proved beyond a reasonable doubt. People v
Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People
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v Aldrich, 246 Mich App 101, 122; 631 NW2d 67 (2001). Circumstantial evidence and
reasonable inferences drawn therefrom may be sufficient to prove the elements of a crime.
People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993); People v Schultz, 246 Mich App 695,
702; 635 NW2d 491 (2001).
In People v Carines, 460 Mich 750, 758-759; 597 NW2d 130 (1999), the Court observed:
“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 knowledge that death or great bodily harm was
the probable result [i.e., malice], (3) while committing, attempting to commit, or
assisting in the commission of any of the felonies specifically enumerated in [the
statute, including armed robbery].” [Quoting People v Turner, 213 Mich App
558, 566; 540 NW2d 728 (1995).]
The facts and circumstances of the killing may give rise to an inference of
malice. Id. A jury may infer malice from evidence that the defendant
intentionally set in motion a force likely to cause death or great bodily harm. Id.
Malice may also be inferred from the use of a deadly weapon. Id., p 567.
“In situations involving the vicarious liability of co felons, the individual
liability of each felon must be shown. It is fundamentally unfair and in violation
of basic principles of individual criminal culpability to hold one felon liable for an
unforeseen death that did not result from actions agreed upon by the participants.
In cases where the felons are acting intentionally or recklessly in pursuit of a
common plan, liability may be established on agency principles. If the homicide
is not within the scope of the main purpose of the conspiracy, those not
participating are not criminally liable.” [Quoting Turner, supra 566-567, in turn
quoting People v Flowers, 191 Mich App 169, 178; 477 NW2d 473 (1991).]
See also People v Aaron, 409 Mich 672, 731; 299 NW2d 304 (1980).
In Turner, supra at 567, this Court, quoting Flowers, supra at 178, noted:
In order to convict one charged as an aider and abettor of a first-degree
felony murder, the prosecutor must show that the person charged had both the
intent to commit the underlying felony and the same malice that is required to be
shown to convict the principal perpetrator of the murder. Therefore, the
prosecutor must show that the aider and abettor had the intent to commit not only
the underlying felony, but also to kill or to cause great bodily harm, or had
wantonly and wilfully disregarded the likelihood of the natural tendency of this
behavior to cause death or great bodily harm. Further, if it can be shown that the
aider and abettor participated in a crime with knowledge of his principal’s intent
to kill or to cause great bodily harm, he was acting with wanton and wilful
disregard sufficient to support a finding of malice. People v Kelly, 423 Mich 261;
378 NW2d 365 (1985).
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Intent is a question of fact to be inferred from the circumstances by the
trier of fact. . . . It is likewise a factual issue whether a particular act or crime
committed was fairly within the intended scope of the common criminal
enterprise.
This Court in Turner, supra at 567, quoting People v Martin, 392 Mich 553, 561; 221 NW2d 336
(1974), overruled in part on other grounds in People v Woods, 416 Mich 581; 331 NW2d 707
(1982), also observed that “[m]alice is a permissible inference from the use of a deadly weapon.”
In Turner, this Court affirmed several codefendants’ convictions of felony murder arising
from the robbery and death of a victim who was shot by one of the codefendants, Johnson. The
evidence established that during the course of a committing a series of planned armed robberies,
one of the robbers called out Johnson’s first name. At that point, Johnson concluded that he had
to kill the victim because “[h]e heard my name” and Johnson then shot the victim. This Court
affirmed the felony murder convictions of Johnson’s codefendant’s, reasoning that there was
sufficient evidence that each participated in the armed robbery with knowledge of Johnson’s
intent to kill or cause great bodily harm so as to conclude that they acted with “wanton and wilful
disregard” sufficient to support a finding of malice under Aaron. Turner, supra at 572-575, 580581.
Similar to Turner, there was sufficient evidence in this case to allow a rational trier of
fact to convict defendant of felony murder for aiding and abetting codefendant Johnson in the
murder of DuBarry, during the course of an enumerated felony. The information in this case
charged defendant, in pertinent part, as follows:
[D]id, while in the perpetration or attempted perpetration of a robbery, or a
larceny, murder one Beatrice DuBarry and/or aid and abet Antwain Johnson in
doing so.
Robbery and larceny are both felonies enumerated in MCL 750.316. The jury determined that
defendant was guilty of felony murder based on the predicate felony of armed robbery. The
elements of armed robbery are: “(1) an assault, (2) a felonious taking of property from the
victim’s presence or person, (3) while the defendant is armed with a weapon described in the
statute.” Turner, supra at 569.
Relying on People v Randolph, 466 Mich 532, 536; 648 NW2d 164 (2002), defendant
argues that the evidence failed to establish a robbery. In Randolph, our Supreme Court held
“that the force used to accomplish the taking underlying a charge of unarmed robbery must be
contemporaneous with the taking.” In light of the Supreme Court’s decision in Randolph, we
agree that it is questionable whether a robbery was established in this case, given that the
evidence showed that codefendant Johnson took Asaro’s money from the table as he was
walking past it, that Johnson and defendant exited the bar, and that it was not until after Johnson
reentered the bar that he began his assaultive conduct. Under these circumstances, it appears the
evidence failed to show that the larcenous taking and the assault were sufficiently
contemporaneous to establish a robbery under Randolph.
Nonetheless, we conclude that our resolution of this issue is not necessary to the
disposition of this case. To the extent the evidence failed to establish a robbery, the remedy
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would be to vacate defendant’s armed robbery conviction. Conversely, even if we were to find
that the evidence could properly be viewed as establishing a robbery, it would still be necessary
to vacate that conviction where it served as the predicate felony for defendant’s felony murder
conviction. US Const, Am V; Const 1963, art 1, § 15; People v Gimotty, 216 Mich App 254,
259; 549 NW2d 39 (1996); see also People v Garcia (After Remand), 203 Mich App 420, 425;
513 NW2d 425 (1994), aff’d 448 Mich 442; 531 NW2d 683 (1995). In this regard, we also
conclude that any deficiency in the evidence with regard to the armed robbery conviction does
not affect defendant’s conviction of first-degree felony murder. Defendant was charged with
felony murder based on separate theories of larceny and armed robbery, and the jury was
instructed on both theories. By determining that defendant was guilty of felony murder based on
an armed robbery, the jury necessarily determined his guilt of felony murder based on the
commission of a larceny. Randolph, supra at 553.
Although defendant concedes that the evidence clearly showed that codefendant Johnson
committed a larceny, he argues that the evidence was insufficient to show that he aided and
abetted Johnson in committing a larceny. We disagree.
The 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, (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).
Although defendant contends that he did not assist codefendant Johnson in committing
the larcenous act, i.e., taking the ten-dollar bill from the table, the evidence showed that
defendant had previously discussed with Johnson how to open the cash register when they were
seated at the bar together. Additionally, during a discussion in which Johnson said that he was
going to “house the till,” defendant informed Johnson that he was going to “house everything
else in there.” This evidence supports an inference that defendant and Johnson were acting in
pursuit of a common plan when Johnson took the ten-dollar bill from the table. Additionally,
when Johnson pulled out his gun and pointed it in Wilson’s face, defendant said to Johnson, “If
you were going to do that, you might as well house the whole bitch,” i.e., steal everything. Thus,
the evidence was sufficient to establish defendant’s guilt under an aiding and abetting theory.
Furthermore, there was sufficient evidence of malice to support defendant’s conviction of
felony murder under an aiding and abetting theory. As in Turner, defendant knew that Johnson
was armed with a gun when they entered the bar. Additionally, while defendant and Johnson
were seated at the bar, they discussed how to open the cash register and commit a robbery.
When Johnson told defendant that he was going to “house the till,” defendant replied that if “he
housed the till, he was gonna house everything else.” Defendant’s knowledge that Johnson was
armed during the planned commission of a robbery was additional evidence that enabled a
rational trier of fact to find that he acted with the “wanton and wilful disregard” necessary to
support a finding of malice. See Turner, supra at 572.
II
Defendant also challenges the sufficiency of the evidence in support of his convictions
for assault with intent to commit murder. “The elements of assault with intent to commit murder
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are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the
killing murder.” People v Barclay, 208 Mich App 670, 674; 528 NW2d 842 (1995).
Defendant argues that the evidence was insufficient to show that he assisted codefendant
Johnson in shooting Asaro and Mooney while possessing the requisite intent to kill. We
disagree.
To support a finding that a defendant aided and abetted a crime, the prosecutor must
show that: (1) the crime charged was committed by the defendant or some other person, (2) the
defendant performed acts or gave encouragement which assisted the commission of the crime,
and (3) the defendant intended the commission of the crime or had knowledge that the principal
intended its commission at the time he gave aid and encouragement. Turner, supra at 568. An
aider and abettor’s state of mind may be inferred from all the facts and circumstances. Id.
Here, the evidence showed that defendant was aware that codefendant Johnson was
armed with a gun and that the two had discussed committing a robbery. This supports an
inference that defendant and codefendant Johnson were acting in pursuit of a common plan.
Additionally, although it was Johnson who shot at Asaro and Mooney, a witness testified that
defendant was right behind Johnson when Johnson reentered the bar and that defendant held the
door open for Johnson. One of the victims, Mooney, similarly testified that defendant was inside
the bar behind Johnson when Johnson fired the shots. Viewed most favorably to the prosecution,
the evidence was sufficient to enable a rational jury to find that defendant assisted Johnson with
knowledge of Johnson’s intent to kill, thereby supporting defendant’s convictions for assault
with intent to commit murder under an aiding and abetting theory.
III
Next, defendant argues that the trial court erred by denying his motion for a directed
verdict with regard to the charge of first-degree premeditated murder. We disagree.
To convict a defendant of first-degree premeditated murder, the prosecution must show
that the defendant intentionally killed the decedent and that the killing was premeditated and
deliberate. People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). “Premeditation
and deliberation require sufficient time to allow the defendant to take a second look.” Id. The
elements of premeditation and deliberation may be inferred from the circumstances surrounding
the killing. Jolly, supra at 466. Among the factors that may be considered in order to establish
premeditation and deliberation are: (1) the previous relationship between the decedent and the
defendant, (2) the defendant’s actions before and after the crime, and (3) the circumstances
surrounding the killing itself, including the weapon used and the location of the wounds. People
v Coddington, 188 Mich App 584, 600; 470 NW2d 478 (1991).
The evidence in this case indicated that defendant was aware that codefendant Johnson
was armed with a gun and that the two discussed committing a robbery together. There was also
evidence that defendant encouraged and assisted Johnson when Johnson pulled out his gun upon
initially leaving the bar and told him, “If you were going to do that, you might as well house the
whole bitch.” Additionally, there was evidence that defendant accompanied Johnson when
Johnson reentered the bar and began shooting, and assisted Johnson by holding the door open for
him, following which the two fled the scene together and carjacked an automobile from another
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couple to aid their escape. This evidence, viewed most favorably to the prosecution, is sufficient
to support an inference that defendant aided and abetted codefendant Johnson with knowledge of
a premeditated intent to kill. Thus, the trial court did not err in denying defendant’s motion for a
directed verdict with regard to the charge of first-degree premeditated murder.
Furthermore, even if the evidence did not support the charge of first-degree premeditated
murder, any error in submitting that charge to the jury was harmless where the jury acquitted
defendant of that offense and found him guilty only of second-degree murder. People v Graves,
458 Mich 480, 482-483; 581 NW2d 229 (1998).
IV
We agree with defendant that the trial court erroneously instructed the jury that the use of
force in retaining property previously taken, or in attempting to escape, is sufficient to provide
the element of force or coercion necessary to the offense of robbery. This transactional approach
to robbery was rejected by our Supreme Court in Randolph, supra. Nonetheless, because we are
vacating defendant’s armed robbery conviction on independent grounds (see part I, supra), this
issue does not warrant further relief. Furthermore, as also discussed in part I, because
defendant’s felony murder conviction may be sustained on the basis that a larceny was
committed during the commission of a murder, the court’s instructional error is harmless as it
concerns the felony murder conviction. People v Lukity, 460 Mich 484, 495-496; 596 NW2d
607 (1999).
V
Defendant also argues that the trial court erroneously admitted Marilyn Wilson’s
statement to the police, wherein she reported that codefendant Johnson had stated, “We’re going
to rob the place.” The statement was admitted as a past recollection recorded under MRE
803(5). We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Layher, 464 Mich 756, 761; 631 NW2d 281 (2001).
In People v Daniels, 192 Mich App 658, 667-668; 482 NW2d 176 (1992), this Court
discussed the foundational requirements for admitting a statement under MRE 803(5):
The following foundational requirements must be met before a
memorandum or writing may be admitted into evidence under the recorded
recollection exception to the hearsay rule:
“Documents admitted pursuant to this rule must meet three requisites: (1)
The document must pertain to matters about which the declarant once had
knowledge; (2) The declarant must now have an insufficient recollection as to
such matters; (3) The document must be shown to have been made by the
declarant or, if made by one other than the declarant, to have been examined by
the declarant and shown to accurately reflect the declarant’s knowledge when the
matters were fresh in his memory.” [Quoting People v J D Williams, 117 Mich
App 505, 508-509; 324 NW2d 70 (1982), rev’d and remanded on other grounds
412 Mich 711; 316 NW2d 717 (1982).]
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In the instant case, the prosecution satisfied the foundational requirements to admit
Wilson’s statement under MRE 803(5). First, Wilson gave a statement to the police while the
events were fresh in her memory. Second, Wilson could not remember the specific statement
that the prosecution wished to introduce at trial. Third, Wilson testified that the police officer
wrote her statement down and that she reviewed his notes at the time, confirming their accuracy.
Thus, the trial court did not abuse its discretion when it allowed Wilson’s statement to the police
as a past recollection recorded under MRE 803(5).
VI
Finally, because we are affirming defendant’s felony murder conviction, we agree that it
is necessary to vacate his conviction and sentence for second-degree murder, inasmuch as both
convictions stem from the death of a single victim. US Const, Am V; Const 1963, art 1, § 15;
People v John Clark, 243 Mich App 424, 429-430; 622 NW2d 344 (2000).
We affirm defendant’s convictions for first-degree felony murder, two counts of assault
with intent to commit murder, and carjacking, but vacate his convictions and sentences for
second-degree murder and armed robbery.
/s/ Michael J. Talbot
/s/ Donald S. Owens
/s/ Karen M. Fort Hood
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