PEOPLE OF MI V CALVIN MAURICE COOLEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 21, 2008
Plaintiff-Appellee,
v
No. 278574
Wayne Circuit Court
LC No. 06-008668-01
CALVIN MAURICE COOLEY,
Defendant-Appellant.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317,
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b,
felonious assault, MCL 750.82 and felon in possession of a firearm, MCL 750.224f. Defendant
was sentenced to 35 to 70 years’ imprisonment for the second-degree murder conviction, two
years’ imprisonment for the felony-firearm conviction, two to four years’ imprisonment for the
felonious assault conviction and two to five years’ imprisonment for the felon in possession of a
firearm conviction. Defendant appeals as of right. We affirm defendant's convictions and
sentences, but vacate the trial court’s order that defendant pay for his court-appointed attorney
and remand for proceedings consistent with this opinion.
Defendant first contends that there was insufficient evidence presented at trial to convict
him of felon in possession of a firearm. We disagree. In reviewing a challenge based on the
sufficiency of the evidence, this Court conducts a de novo review. People v Sherman-Huffman,
241 Mich App 264, 265; 615 NW2d 776 (2000). A conviction will be affirmed when, viewing
the evidence in the light most favorable to the prosecutor, a rational trier of fact could find that
the elements of the crime were proven beyond a reasonable doubt. People v Johnson, 460 Mich
720, 723; 597 NW2d 73 (1999).
“MCL 750.224f prohibits a person convicted of a felony from possessing a firearm if
fewer than three years have passed since the person paid all fines, served all terms of
imprisonment, and successfully completed all terms of probation or parole imposed for the
violation.” People v Perkins, 262 Mich App 267, 269; 686 NW2d 237 (2004) (Footnote
omitted). Furthermore:
By the clear and unambiguous terms of the statute, a person convicted of a
specified felony is prohibited from possessing a firearm until five years after he
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has paid all fines, served all terms of imprisonment, and completed all terms of
probation or parole imposed for the offense. MCL 750.224f(2)(a). Moreover,
after the five-year period has passed, the convicted felon is prohibited from
possessing a firearm until his right to do so has been formally restored under
MCL 28.424. MCL 750.224f(2)(b). [Id. at 270-271.]
MCL 750.224f governs possession of a firearm by a person convicted of a felony and
provides in relevant part:
(2) A person convicted of a specified felony shall not possess, use, transport, sell,
purchase, carry, ship, receive, or distribute a firearm in this state until all of the
following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the violation.
(iii) The person has successfully completed all conditions of probation or parole
imposed for the violation.
(b) The person’s right to possess, use, transport, sell, purchase, carry, ship,
receive, or distribute a firearm has been restored pursuant to section 4 of Act No.
372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled
Laws.
***
(6) As used in subsection (2), “specified felony” means a felony in which 1 or
more of the following circumstances exist:
(i) An element of that felony is the use, attempted use, or threatened use of
physical force against the person or property of another, or that by its nature,
involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
(ii) An element of that felony is the unlawful manufacture, possession,
importation, exportation, distribution, or dispensing of a controlled substance.
(iii) An element of that felony is the unlawful possession or distribution of a
firearm.
(iv) An element of that felony is the unlawful use of an explosive.
(v) The felony is burglary of an occupied dwelling, or breaking and entering an
occupied dwelling, or arson.
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Defendant does not dispute that he possessed a firearm on the night in question and that he was
previously convicted of malicious destruction of property, MCL 750.377a(1). The parties agree
that if malicious destruction of property is not a specified felony, defendant was legally
permitted to possess a firearm. Conversely, if malicious destruction of property is a specified
felony, because defendant made no showing that his right to carry a firearm had been restored,
sufficient evidence existed to support defendant's conviction for felon in possession of a firearm.
Therefore, this Court must determine whether malicious destruction of property is a specified
felony pursuant to MCL 750.224f(6).
Review of MCL 750.224f(6) reveals that the elements of the specified felony must
include the actual use, attempted use, or threatened use of physical force against the person or
property of another. Alternatively, the crime, by its nature, must include a substantial risk that
physical force may be used against a person or property of another. MCL 750.224f(6).1
In accordance with MCL 750.377a(1), “[a] person who willfully and maliciously destroys
or injures the personal property of another person” is guilty of malicious destruction of property.
This Court has previously stated “[t]he malicious destruction of personal property statute
proscribes the wilful and malicious destruction or injury of the personal property of another, by
any means.” People v Walker, 234 Mich App 299, 312; 593 NW2d 673 (1999) (emphasis in
original). The function of a reviewing court resolving disputed interpretations of statutory
language is to effectuate the legislative intent. People v Valentin, 457 Mich 1, 5; 577 NW2d 73
(1998). When a statute does not define a term, the plain, ordinary meaning of a term may be
applied or a dictionary may be consulted. People v Peals, 476 Mich 636, 641; 741 NW2d 61
(2007). The definition of the term “destroy” is “to reduce (a thing) to useless fragments or a
useless form, as by smashing or burning; injure beyond repair; demolish.” Random House
Webster’s College Dictionary (2000), p 361. The definition of the term “destroy” indicates that
the use of some degree of force is applied to achieve the injury to property. That is, a thing is
reduced to fragments by smashing, burning, or committing an act that injures an item beyond
repair. Accordingly, the malicious destruction of property felony satisfies the requirements of
MCL 750.244f(6)(i).2
1
Defendant relies on hypothetical scenarios to assert that the elements of the offense may be
satisfied without the actual use of physical force. The fact that a hypothetical could be posed to
cast doubt upon a statute is inappropriate; rather, the analysis centers on the language of the
statute itself as applied to the individual defendant. See People v Derror, 475 Mich 316, 337;
715 NW2d 822 (2006).
2
At oral argument, it was represented that the recent decision in People v Althoff, ___ Mich App
___; ___ NW2d ___ (2008), Docket No. 274906, issued September 2, 2008, distinguished
between an element test and a nature test. Defense counsel asserted that where a statute utilized
the nature terminology, the circumstances of the individual offense had to be examined, and
therefore, this Court had to remand to the circuit court to determine the nature of the
circumstances surrounding the malicious destruction of property conviction. In Althoff, supra,
the Court of Appeals was directed to determine whether the convicted offense required
registration as a sex offender based on the “nature” of the offense and in light of the catchall
provision, MCL 28.722(e)(xi). See People v Althoff, 477 Mich 961 (2006). Review of MCL
(continued…)
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Next, defendant asserts that the trial court erred in failing to instruct the jury on imperfect
self-defense. We disagree. “The determination whether a jury instruction is applicable to the
facts of the case lies within the sound discretion of the trial court.” People v Heikkinen, 250 Mich
App 322, 327; 646 NW2d 190 (2002). The abuse of discretion standard recognizes that in
certain circumstances there are multiple reasonable and principled outcomes and, so long as the
trial court selects one of these outcomes, its ruling will not be disturbed. People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003).
This Court has previously stated that imperfect self-defense can mitigate a second-degree
murder to a voluntary manslaughter. People v Butler, 193 Mich App 63, 67; 483 NW2d 430
(1992). However, “[t]he doctrine applies only where the defendant would have been entitled to
self-defense had he not been the initial aggressor.” Id. Therefore, in order to determine whether
defendant is shielded by the doctrine of imperfect self-defense, this Court must determine
whether defendant would have been entitled to self-defense had he not initiated the confrontation
with the victim. A defendant is entitled to self-defense if “he honestly and reasonably believe[d]
that he [was] in imminent danger of death or great bodily harm and that it [was] necessary for
him to exercise deadly force.” People v Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002). The
doctrine “requires that the actor try to avoid the use of deadly force if he can safely and
reasonably do so, for example by applying nondeadly force or by utilizing an obvious and safe
avenue of retreat.” Id. An individual can only use the amount of force that is necessary to defend
himself. People v Kemp, 202 Mich App 318, 322; 508 NW2d 184 (1993). In addition, where
the defendant was the initial aggressor, self-defense is not available unless the defendant first
withdrew from the encounter and communicated that withdrawal to the victim. Id. at 323.
In the present case, there is no evidence that defendant attempted to withdraw from the
encounter and communicated the withdrawal to the victim. Kemp, supra. Accordingly, the trial
court did not abuse its discretion in declining the requested instruction. Heikkinen, supra.
Defendant next asserts the prosecution denied him a fair trial during its closing argument.
We disagree. Where the alleged misconduct has been properly objected to, this Court analyzes
the context of the prosecutor’s comments to ascertain whether the defendant was denied a fair
and impartial trial. People v Truong, 218 Mich App 325, 336; 553 NW2d 692 (1996). Whether
(…continued)
750.224f(6) reveals that it is not limited to an examination of the nature of the offense alone.
Rather, MCL 750.224f(6) examines the elements of the felony or the nature. See People v
Warren, 462 Mich 415, 429 n 24; 615 NW2d 691 (2000) (“Every word of a statute should be
given meaning and no word should be treated as surplusage or rendered nugatory.”). In light of
the fact that the elements of malicious destruction of property include destroying property and
the term necessarily requires some degree of force or action to achieve the destruction, we need
not examine the individual nature of the offense at issue. Moreover, counsel may not harbor
error as an appellate parachute. People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000).
Although this issue arose in the lower court, there is no indication that the defense examined the
case file involved in the destruction of property case. Further, defendant did not file an affidavit
in the trial court to delineate the circumstances surrounding the conviction. Therefore, the
reliance on hypotheticals and the nature test is an insufficient basis to warrant a remand where
the plain language of MCL 750.224f(6) provides for examination of the elements of the offense
as well as the nature of the offense.
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a particular act is misconduct is evaluated on a case-by-case basis, and is evaluated in the context
of the evidence and theories of the defense. People v Dobek, 274 Mich App 58, 64; 732 NW2d
546 (2007). “The prosecution has wide latitude in arguing the facts and reasonable inferences,
and need not confine argument to the blandest possible terms.” Id. at 66. However, a prosecutor
is not permitted to make a factual statement to the jury that is not supported by the evidence. Id.
First, defendant contends that the prosecutor improperly commented on his failure to
testify when the prosecutor asked why Johnny never heard back from defendant despite
defendant's reassurance that he would call. As described above, this Court has stated that a
prosecutor is granted wide latitude in arguing the facts and reasonable inferences in a case. The
record in the present case does not support defendant's contention that the prosecutor was
commenting on his decision to not testify. Rather, when the prosecutor stated that there was
never an explanation for why Johnny did not get a call back from defendant or why defendant
left his wife and child in Michigan to go to Toledo, it seemed that he was merely alluding to
defendant’s decision to flee from authorities rather than turn himself in. Furthermore, the
prosecutor never stated that defendant himself was required to explain the reason for not calling
Johnny. The prosecutor merely stated that nobody provided an explanation for the failure to call.
Defendant cannot show that he was prejudiced by the comment as his failure to return a phone
call was likely not what persuaded the jury of his guilt. Furthermore, the trial court instructed
the jury that defendant's decision to not testify could not be considered an indication of his guilt,
nor was his decision to flee necessarily an indication of guilt. “Jurors are presumed to follow
their instructions, and instructions are presumed to cure most errors.” People v Abraham, 256
Mich App 265, 279; 662 NW2d 836 (2003). Defendant has not established that the jurors were
unable to follow the instructions.
Next, defendant asserts that the prosecution denied him a fair trial when it argued that the
reason the police initially sought Corey Kimson for Brown’s murder was because they were led
on a wild goose chase by Dave Johnson. Specifically, the prosecutor stated, “if you look at what
Mr. [Andra] Dailey describes Mr. Johnson’s doing, it’s not coincidence that they send the police
on a wild goose chase.” Defendant implies that Clay was the initial source of Kimson’s name
and that the prosecution’s argument improperly bolstered Clay’s credibility. The prosecutor’s
comment was likely too ambiguous to truly be prejudicial to defendant. First, Dailey did not
describe Johnson as doing anything that could be considered unusual. Furthermore, after
implying that Johnson was doing something unusual, the prosecutor stated that it was not
surprising that “they” led the police on a wild goose chase. It is unclear whom the prosecutor
was referring to as “they.” Additionally, it is not entirely clear that the prosecution was referring
to the initial focus on Kimson when it stated the police were on a wild goose chase. The
statement challenged by defendant was ambiguous, poorly structured and did not coherently fit
with the rest of the prosecution’s argument. There is no evidence that it had the effect of
bolstering Clay’s credibility or that it denied defendant a fair trial.
Finally, defendant asserts that the trial court erred in ordering him to pay for his courtappointed attorney without considering his financial circumstances. We agree. This Court
reviews unpreserved claims of error for plain error affecting the substantial rights of the
defendant. People v Carines, 460 Mich 750, 763, 597 NW2d 130 (1999).
A defendant may be required to reimburse the county for the cost of a court-appointed
attorney, but the court must order a fee that bears a relationship to the defendant’s foreseeable
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ability to pay. People v Dunbar, 264 Mich App 240, 251; 254-255; 690 NW2d 476 (2004). A
trial court’s pronouncement of the costs without consideration of the defendant’s present and
future ability to pay is insufficient and warrants a remand to the trial court. Id. at 255. The
sentencing court need not conduct a formal evidentiary hearing. People v DeJesus, 477 Mich
996, 997; 725 NW2d 669 (2007).3 The record does not indicate any inquiry into defendant’s
ability to pay. Therefore, we vacate the portion of the judgment of sentence requiring defendant
to pay attorney fees and remand for reconsideration in light of defendant’s present and future
ability to pay the attorney fees.4
Defendant's convictions and sentences are affirmed. The trial court’s order regarding
attorney fees is vacated, and this matter is remanded for a determination regarding defendant’s
ability to pay.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
3
Although this holding was rendered in an order, not an opinion, an order of the Supreme Court
is binding precedent when the rationale can be understood. See People v Edgett, 220 Mich App
686, 693 n 6; 560 NW2d 360 (1996).
4
The prosecution submits that Dunbar is no longer valid law. However, the issue of the validity
of Dunbar and its constitutional underpinnings was briefed and argued before the Supreme
Court, People v Carter, 480 Mich 938; 741 NW2d 23 (2007), but the Supreme Court declined
the opportunity to invalidate the decision. People v Carter, 480 Mich 1063; 743 NW2d 918
(2008).
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