PEOPLE OF MI V KEVIN LAMONT SPEARS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 10, 2009
Plaintiff-Appellee,
v
No. 286911
Kent Circuit Court
LC No. 08-002697-FC
KEVIN LAMONT SPEARS,
Defendant-Appellant.
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of assault with intent to murder,
MCL 750.83; first-degree home invasion, MCL 750.110a(2); felon in possession of a firearm,
MCL 750.244f; and possession of a firearm during the commission of a felony, MCL
750.227(b)(a). Defendant was sentenced to 25 to 60 years’ imprisonment for his assault with
intent to murder conviction, to 20 to 50 years’ imprisonment for his first-degree home invasion
conviction, 6 to 30 years’ imprisonment for his felon in possession of a firearm conviction and
two years’ imprisonment for his felony-firearm conviction. We affirm defendant’s convictions
and sentences for home invasion, felon in possession and felony firearm; we vacate defendant’s
conviction and sentence for assault with intent to murder and remand for a new trial on that
charge.
Defendant first argues that the supplemental jury instruction regarding the definition of
murder provided at the jury’s request effectively instructed the jury that it could convict
defendant of assault with intent to murder based on an intent less than an actual intent to kill.
We agree. “This Court reviews de novo claims of instructional error.” People v Dupree, 284
Mich App 89, 97; ___ NW2d ___ (2009). “It is axiomatic that a defendant has a right to have a
properly instructed jury pass upon the evidence.” People v Haggart, 142 Mich App 330, 338;
370 NW2d 345 (1985). When a trial court gives both a correct and incorrect instruction, this
Court presumes that the jury followed the incorrect one. People v Hess, 214 Mich App 33, 37;
543 NW2d 332 (1995). Jury instructions must include all elements of the charged offense and
any material issues, defenses, and theories that are supported by the evidence. People v McGhee,
268 Mich App 600, 606; 709 NW2d 595 (2005). “Instructions are read as a whole rather than
extracted piecemeal to determine whether error requiring reversal occurred.” Id.
“The elements of the crime of assault with intent to commit murder are (1) an assault, (2)
with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v
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Plummer, 229 Mich App 293, 305; 581 NW2d 753 (1998). “A defendant is guilty of assault
with intent to murder only if there is an actual intent to kill.” People v Burnett, 166 Mich App
741, 757; 421 NW2d 278 (1988). But a murder conviction may be based on “an intent to kill, an
intent to inflict great bodily harm, or a wanton and wilful disregard of the likelihood that the
natural tendency of the actor’s behavior is to cause death or great bodily harm.” People v
Taylor, 422 Mich 554, 567; 375 NW2d 1 (1985).
In People v Crawford, 128 Mich App 537, 538; 340 NW2d 323 (1983), the trial court
instructed the jury that to find the defendant guilty of assault with intent to murder, it must find
that the defendant intended to murder the victims. The trial court also instructed the jury:
Murder is the killing of one person by another with malice. Malice is a term with
special meaning in the law. Malice means that the defendant intended to kill or
that he consciously created a very high degree of risk of death with knowledge of
the probable consequences of his act and that he did so under circumstances
which did not justify, excuse or mitigate the crime. [Id. at 538-539.]
Based on these instructions, this Court determined that “the jury was authorized to convict
defendant of assault with intent to commit murder upon finding either that he intended to kill the
officers or that he intended consciously to create a very high degree of risk of death with
knowledge of the probable consequences of his acts.” Id. at 539. Because an actual intent to kill
must be proven to support a conviction of assault with intent to commit murder and because the
defendant’s intent was the sole disputed issue, this Court held that the improper instruction
required reversal of defendant’s assault convictions and remand for a new trial. Id.
In the present case, after the trial concluded, the trial court properly instructed the jury on
the elements of assault with intent to murder. With regards to the intent element, the trial court
stated: “the defendant intended to kill the person he assaulted, and the circumstances did not
legally excuse or reduce the crime.” The trial court further stated “[t]he defendant can only be
guilty of a crime of assault with intent to commit murder if he would have been guilty of murder
had the person he assaulted actually died.” The court went on to instruct the jury regarding
mitigating factors that could reduce the crime of murder to voluntary manslaughter, and also
instructed the jury on the elements of the lesser-included crimes of assault with intent to great
bodily harm and felonious assault. The parties did not object to these instructions.
After a few hours of deliberation, the jury asked for a definition of murder. In response
to the jury’s request, the trial court stated:
In general murder can be defined as follows. And I’m going to give a copy of this
to your foreperson. A person who kills another is guilty of the crime of murder if
the murder is committed with malice aforethought. Malice aforethought is the
intention to kill, actual or implied, under circumstances which do not constitute
excuse or justification or mitigate the degree of the offense to manslaughter. The
intent to kill may be implied where the actor actually intends to inflict great
bodily harm or the natural tendency of his behavior is to cause death or great
bodily harm.
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Please remember that the third element in count one, of assault with intent to
commit murder. That element requires that the defendant intended to kill the
person that he assaulted.
We conclude, as in Crawford, supra at 539, the jury instructions provided by the trial
court were misleading and authorized the jury to convict defendant of assault with intent to
commit murder on less than an actual intent to kill. Though we recognize that the trial court
attempted to remind the jury that defendant had to intend to kill the victim, this statement was
not effective because the only definition of murder provided to the jury indicated this intent
could be implied. Because assault with intent to commit murder is a specific intent crime and
because defendant’s intent was the sole issue at trial, we hold that the jury instructions were
impermissible. Crawford, supra at 538; Burnett, supra at 757. We vacate defendant’s
conviction and sentence for assault with intent to commit murder and remand for a new trial on
that charge.
Defendant next contends that the trial court abused its’ discretion when it scored offense
variable (“OV”) 4, MCL 77.34, for ten points when there was no evidence to support that either
the victim or defendant’s former girlfriend suffered psychological harm as a result of the
shooting. MCL 777.34(1)(a) provides that OV 4 may be scored for ten points if “[s]erious
psychological injury requiring professional treatment occurred to a victim.” When determining
the appropriate score for OV 4, the fact that the victim did not seek professional treatment is not
conclusive. MCL 777.34(2). In present case, defendant’s former girlfriend testified that she ran
and hid in a closet until the shooting ended and that she was “scared” during the shooting. This
was sufficient evidence to justify the trial court’s decision to score OV 4 for ten points. See
People v Apgar, 264 Mich App 321, 329; 690 NW2d 312 (2004).
Defendant also argues that OV 9, MCL 777.39, was misscored for ten points because
defendant’s former girlfriend was never in any danger of being injured or killed as a result of the
gunshots. OV 9 may be scored for 10 points if “ [t]here were 2 to 9 victims who were placed in
danger of physical injury or death . . .” MCL 777.39(1)(c). “[O]nly people placed in danger of
injury or loss of life when the sentencing offense was committed (or, at the most, during the
same criminal transaction) should be considered.” People v Sargent, 481 Mich 346, 351; 750
NW2d 161 (2008). OV 9 must be scored only for conduct that occurred during the sentencing
offense. People v McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009). In the present case,
evidence presented at trial revealed that while defendant was invading the home, he shot a gun
several times toward the area of the basement stairs. Defendant’s former girlfriend was at the
top of the basement stairs when the shooting began, which established she was in the immediate
vicinity when the shooting occurred. Thus, the score of ten points was proper.
Defendant argues that the offense variables were scored based on facts found by the trial
court and not proven to a jury beyond a reasonable doubt and that this fact-finding increased the
legislatively authorized range of punishment in violation of his Sixth Amendment rights, Blakely
v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), and his right to due process,
Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000). Defendant further
argues that the Court wrongly decided People v Drohan, 475 Mich 140, 164; 715 NW2d 778
(2006). Michigan’s sentencing scheme is unaffected by the United States Supreme Court
holdings, Blakely, supra at 296, and Apprendi, supra at 466, because Michigan utilizes an
indeterminate sentencing scheme in which the trial court sets the minimum sentence but can
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never exceed the statutory maximum sentence. Drohan, supra at 162-164. Though defendant
argues that Drohan, supra, was wrongly decided, we are bound to follow decisions issued by our
Supreme Court. People v Hall, 249 Mich App 262, 270; 643 NW2d 253 (2002), remanded 467
Mich 888 (2002), on remand 256 Mich App 674; 671 NW2d 545 (2003).
Defendant also argues that the trial court improperly ordered restitution without
complying with the requirements of MCL 771.3(5). MCL 771.3(5) states “[i]f the court requires
the probationer to pay costs under subsection (2), the costs shall be limited to expenses
specifically incurred in prosecuting the defendant or providing legal assistance to the defendant
and supervision of the probationer.” Because it is undisputed defendant was sentenced to prison
and is not a probationer, this statute is inapplicable to the instant case.
Defendant next argues that the trial court impermissibly failed to consider defendant’s
ability to pay the restitution before imposing the restitution order pursuant to MCL 780.766(2).
Pursuant to MCL 780.766(2), a trial court “shall order, in addition to or in lieu of any other
penalty authorized by law or in addition to any other penalty required by law, that the defendant
make full restitution to any victim of defendant’s course of conduct that gives rise to the
conviction or to the victim’s estate.” After June 1, 1997, MCL 780.767 “no longer includes the
defendant's ability to pay among the factors to be considered when determining the amount of
restitution.” People v Crigler, 244 Mich App 420, 428; 625 NW2d 424 (2001). Thus, contrary
to defendant’s claims, the trial court was not required to consider defendant’s ability to pay.
Defendant further alleges that he was denied the effective assistance of counsel because
his attorney did not object to the order of restitution where the trial court failed to investigate
defendant’s ability to pay. Because the trial court was not required to consider defendant’s
ability to pay, an objection by defense counsel on this ground would have been futile and did not
constitute ineffective assistance of counsel. People v Petri, 279 Mich App 407, 415; 760 NW2d
882 (2008) (A defense counsel need not make a futile motion to be effective.)
We affirm in part, vacate in part and remand for proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
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