People v. Tucker

448 N.W.2d 811, 181 Mich. App. 246

Opinion

Per Curiam.

After a consolidated trial before a jury, defendants Patrick Musick and Donald Gary Beckom were each convicted of two counts of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305, and defendant Thomas Lee Tucker was convicted on one count of the same offense. Defendant Musick was subsequently convicted by a different jury of being a fourth-felony offender, MCL 769.12; MSA 28.1084. Musick was sentenced to concurrent prison terms of ten to fifteen years on each of the two breaking and entering counts, and the underlying felony sentence was vacated in favor of-a twenty-to fifty-year term on the habitual offender conviction. Defendant Beckom was sentenced to concurrent terms of eight to fifteen years, and defendant Tucker was also sentenced to eight to fifteen years.

All three defendants argue that the trial court abused its discretion by not granting their motions for severance of their trials and by not granting a mistrial when it became apparent that each defendant was raising a defense that was antagonistic to the defenses of thé codefendants. The trial court’s decision whether to grant severance is reviewed in light of those considerations succinctly stated by our Supreme Court:

Statutory authority for the exercise of the court’s discretion (MCLA 768.5; MSA 28.1028) and case law establishing a strong policy in favor of joint trials are acknowledged by defendants. There must be an; affirmative showing of prejudice to substantial rights of the accused. . . . The motion here was based upon an allegation of inconsistent defenses. The record discloses that the defenses differed but were not inconsistent and no statement was used by one defendant against another. No abuse of discretion is demonstrated. [People v Carroll, 396 Mich 408, 414; 240 NW2d 722 (1976) (citation omitted).]

Likewise] a ruling on a motion for a mistrial premised upon the occurrence of antagonistic defenses at trial is reviewed for an abuse of discretion. People v Jackson, 100 Mich App 146, 159; 298 NW2d 694 (1980).

Essentially, each defendant argues that the joinder of their cases into one consolidated trial forced them into the position of adopting a defense that sought to exculpate that defendant and shift the blame to the others. We find no abuse of discretion in the refusal to grant severance. Although some of the evidence gave rise to an inference that only two persons were involved in the perpetration of the crimes, this inference was by no means substantial. In contrast, there was substantial evidence incriminating all three defendants, including, but not limited to, the testimony of William Roosa tending to link Musick and Beckom to the breaking and entering incidents, Musick’s inculpatory statement made to Roosa, fingerprint evidence of Musick and Beckom, Tucker’s arrest while driving an automobile containing stolen goods, and evidence of footprints. Musick’s last-minute decision to testify that he loaned his ca:r to the other defendants without actually participating in crimes did not derogate the others’ defenses. Although Tucker did state facts inconsistent with other evidence, i.e., his noninvolvement in the crimes, reversal is not warranted because he did not thereby provide evidence of any facts unknown to the jury that could further incriminate his codefendants or otherwise erode the viability of their defenses. See People v Holly, 129 Mich App 405, 413-414; 341 NW2d 823 (1983). Each defendant essentially urged that the evidence linking him to the crimes was unconvincing without attempting to incriminate his codefendants. This type of defense is not antagonistic because it is not dependent on an assertion that a codefendant did commit the crimes.

The convictions of defendants Beckom and Tucker are affirmed. The remaining issues are raised solely by defendant Musick.

Musick argues that he was prejudiced by the prosecutor’s exploitation of codefendant Beckom’s confession in an attempt to incriminate Musick. During the prosecutor’s direct examination of the police officer testifying to Beckom’s confession, no reference was made to the other defendants. This redaction avoided any violation of the rule of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). See People v Purofoy, 116 Mich App 471, 481-482; 323 NW2d 446 (1982), lv den 417 Mich 969 (1983). However, Musick’s specific argument is that the prosecutor made improper comments that raised inferences from the confession incriminating Musick. During the rebuttal part of closing arguments, the prosecutor addressed a central matter in dispute, that of the credibility of William Roosa, the key prosecution witness who provided transportation and assistance to two of the defendants after the commission of the acts of which defendants were accused. The prosecutor made two brief references to statements made in Beckom’s confession in order to provide corroboration of Roosa’s testimony. In a final summation, the prosecutor argued that the entirety of the evidence, including, among other matters, the confession, demonstrated the three defendants’ guilt. Thus, no argument directly impugning Musick on the basis of statements contained in the confession was asserted. All three references to the confession were abbreviated. No objection was made. The trial court later cautioned the jury in accordance with CJI 4:1:02 not to consider Beckom’s confession against the other codefendants.

When no objection is made to prosecutorial comments, reversal is warranted only if necessary to redress manifest injustice. People v Wise, 134 Mich App 82, 105; 351 NW2d 255 (1984), lv den 422 Mich 852 (1985). Under the circumstances presented here, we are not inclined to find manifest injustice. Indeed the challenged remarks were so fleeting and the prejudice, if any, so insignificant that Musick’s trial attorney may well have refrained from an objection as a matter of judgment as to what course of action would present his client in the best possible light. Even if we were to address this claim as one timely preserved for appeal, we would not reverse. We further find no manifest injustice arising from the prosecutor’s comment that the issue of defendant’s waiver of constitutional rights had been previously litigated. See People v Kincaid, 136 Mich App 209, 215-216; 356 NW2d 4 (1984), lv den 422 Mich 905 (1985).

Musick, relying on the Fourth Amendment, argues that the trial court should have suppressed evidence of stolen items discovered during an inventory search of an automobile operated by codefendant Tucker but owned by Musick. This argument is premised on the police actions in arresting Tucker for an outstanding warrant, an action that Musick maintains was merely a pretext so that the inventory search could be conducted for improper investigatory purposes. In the aftermath of our Supreme Court’s inability to achieve a majority holding in People v Krezen, 427 Mich 681; 397 NW2d 803 (1986), the proper test for evaluation of an inventory search is somewhat unclear. About the only certain axiom to be gleaned from Krezen is that the police must act reasonably in light of the circumstances. Id., pp 685-686, 697-698. See also South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976). However, the United States Supreme Court has recently shed more light on this issue, stating that the police are not constitutionally required to use less intrusive means of securing a vehicle so long as the inventory search is conducted according to standard criteria and for legitimate noninvestigatory reasons. Colorado v Bertine, 479 US 367; 107 S Ct 738; 93 L Ed 2d 739 (1987). In this case, the. police did adhere to a standard operating procedure, as required in People v Long (On Rem), 419 Mich 636; 359 NW2d 194 (1984). The decision to impound the automobile is based on a sound justifica tion, the desire of the police to avoid abandoning an automobile parked on the side of a busy street. The trial court’s finding of reasonableness and implicit rejection of the allegation of pretext were not clearly erroneous. People v Castle, 126 Mich App 203; 337 NW2d 48 (1983), lv den 419 Mich 876 (1984). The same reasons support our conclusion that a second, subsequent inventory search of an automobile occupied by Musick and another was reasonable under the circumstances. Once both occupants were arrested, the police adhered to standard operating procedures in impounding the automobile.

Musick argues that evidence discovered during a search incident to his arrest should have been suppressed because the arrest itself was effected without probable cause. Since this issue is raised for the first time on appeal, we need not undertake appellate review unless failure to do so would result in a miscarriage of justice. People v Juarez, 158 Mich App 66, 71; 404 NW2d 222 (1987). We find no miscarriage of justice because evidence at trial demonstrated probable cause to arrest, thereby rendering this issue unavailing to Musick on the merits. Immediately prior to Musick’s arrest, the police knew that Tucker was arrested in Musick’s automobile with goods apparently taken in the two breaking and entering incidents. The police observed cotton gloves protruding from Mu-sick’s jacket that were consistent with fabric impressions left at the scene of the crimes. They further observed that Musick was wearing the brand of shoes indicated by footprints at the scene of the crimes and that items in the automobile were consistent with the description of items stolen in the reported incidents. This evidence was sufficient for a prudent person to believe that Musick had committed the charged crimes. See People v Lewis, 160 Mich App 20, 25; 408 NW2d 94 (1987), lv den 429 Mich 860 (1987).

Musick argues that the trial court abused its discretion by denying his request that defense counsel be substituted. Although an indigent defendant is entitled to the appointment of a lawyer at public expense, he may not have his assigned lawyer replaced except upon a showing of adequate cause for a change in lawyers. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Genuine disagreement between counsel and the defendant over the use of a substantial defense or of a fundamental trial táctic satisfies the good cause requirement in view of the importance of protecting the accused’s right to counsel. People v Jones, 168 Mich App 191, 194; 423 NW2d 614 (1988). However, a mere allegation that a defendant lacks confidence in his attorney, unsupported by a substantial reason, does not amount to adequate cause, particularly when the request is belated. See People v Otler, 51 Mich App 256, 258-259; 214 NW2d 727 (1974). The trial court’s denial of a request for a new attorney is reviewed for an abuse of discretion. People v Morgan, 144 Mich App 399, 401; 375 NW2d 757 (1985).

In this case, the proffered reasons for the desired change of counsel simply did not add up to adequate or good cause. No conflict in trial strategy, allegation of incompetence, or inadequate trial preparation emerged. Although defendant expressed his dissatisfaction, he failed to demonstrate a breakdown in the attorney-client relationship. We find no abuse of discretion.

Musick argues that the trial court committed instructional error by not giving a cautionary instruction concerning testimony by an accomplice. More particularly, defendant argues that the court should have given CJI 5:2:02 and 5:2:03. However, when the defendant does not request an instruction or object, to its omission, reversal is not warranted unless necessary to redress a miscarriage of justice. People v Federico, 146 Mich App 776, 784-785; 381 NW2d 819 (1985), lv den 425 Mich 867 (1986). When the omitted instruction pertains to the need to examine an accomplice’s testimony with caution, the failure to give the instruction sua sponte requires reversal if the issue of the defendant’s guilt is "closely drawn.” People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974). See also People v Fredericks, 125 Mich App 114, 120-122; 335 NW2d 919 (1983). However, the instant case did not present a credibility contest between the defendant and the alleged accomplice to the extent occurring in McCoy. Musick’s guilt was premised upon a substantial amount of circumstantial evidence independent of the testimony of Roosa, the alleged accomplice. Consequently, reversal is not warranted. Moreover, the evidence tending to establish Roosa’s role as an accomplice was relatively weak. Even if it could be said that Musick was entitled to a cautionary instruction upon a timely request, we would be inclined to find the error harmless beyond a reasonable doubt.

Making reference to several issues raised for the first time in this appeal, which we have already found lacking in merit, Musick argues that his defense attorney’s failure to raise them at the trial level demonstrated ineffective assistance of counsel. In view of our resolution of these issues, we concomitantly find that defendant’s right to effective assistance was not thereby abridged.

We affirm Musick’s conviction on the principal offenses of breaking and entering an occupied dwelling with intent to commit larceny. The remaining issues pertain to Musick’s conviction as an habitual offender.

Musick argues that his conviction as a fourth-felony offender should be reduced to that of a second-felony offender. The supplemental information charged Musick as a fourth-felony offender, premised upon the principal conviction in the instant case and three previous convictions for breaking and entering with intent to commit larceny. At the trial on the supplemental information, the prosecutor’s proofs demonstrated that Musick pled guilty to five counts of breaking and entering, two before Oakland Circuit Court Judge John N. O’Brien (January 28, 1982, sentencing date) and three before Oakland Circuit Court Judge Steven N. Andrews (May 20, 1982, sentencing date).

Musick took the stand and admitted that he pled guilty to the five previous counts in accordance with a single plea bargain. Musick explained that he was arrested on November 4, 1981, and that police investigation resulted in nine counts of breaking and entering lodged against him. It was Musick’s understanding of the terms of the plea agreement that his consideration for the pleas included dismissal of four counts and sentencing assurances relating to the five plea-based convictions.

The trial judge instructed the jury that it should convict Musick as a fourth-felony offender if it found that Musick had been previously convicted of the offenses set forth in the supplemental information. In so doing, the trial judge rejected Mu-sick’s argument that, because all of his previous plea-based convictions emanated from one transaction and one plea bargain, Musick’s potential criminal liability should be reduced as a matter of law to that of a second-felony offender. The jury returned a verdict of guilty as charged.

In People v Stoudemire, 429 Mich 262; 414 NW2d 693 (1987), the defendant had three prior convictions arising out of a single transaction, but was tried and sentenced pursuant to a single proceeding. The defendant was charged for a subsequently committed principal offense and for being a fourth-felony offender. Defendant appealed his plea-based conviction, and the Supreme Court reversed, concluding that the defendant could only be charged as a second-felony offender because convictions resulting from the prior proceeding counted as only one offense under the habitual offender statute.

The question presented by this case is whether several prior convictions count as only one offense for purposes of the habitual offender statute if those prior convictions were obtained pursuant to a single plea bargain. The precise holding in Stoudemire is that "multiple convictions arising out of a single incident may count as only a single prior conviction for purposes of the statute.” Id., p 278. Since it is unclear from the record in the instant case whether the previous plea-based convictions were all based on a single incident, the holding of the Court in Stoudemire may not be directly controlling of the potentially different factual situation presented by the instant case. However, the broader reasoning of the Court is instructive:

The Legislature intended that the habitual offender statute’s fourth-felony provision, like the parallel provision in the New York statute, should apply only to a person who had had three opportunities to reform — who had been convicted and sentenced and then subsequently committed another felony for which he was also convicted and sentenced, and then subsequent to the second conviction committed yet another felony, for which he was again convicted and sentenced. Upon this person’s conviction for yet a fourth felony, he would be subject to the habitual offender act’s fourth-felony provision. He would be subject to mandatory life imprisonment because he had three times failed to reform, "because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws . . . .” [Id., p 271, quoting People v Palm, 245 Mich 396, 401; 223 NW 67 (1929).]

Since the stated policy to impute to an habitual offender only one prior conviction for each missed opportunity to reform is evidently the animus behind the holding in Stoudemire, we are convinced that the Supreme Court would deem Mu-sick’s five previous pleas as only one conviction for habitual offender purposes, assuming that the facts represented in Musick’s testimony, i.e., multiple convictions obtained pursuant to one plea bargain, are accurate.

The trial court in this case erroneously rejected Musick’s position as a matter of law. Accordingly, we reverse his conviction as a fourth-felony offender and remand with the direction that a conviction as a second-felony offender, MCL 769.10; MSA 28.1082, be entered and that Musick be resentenced on that charge. If, however, the prosecutor disputes whether Musick did in fact tender his five previous pleas pursuant to a single bargain and if he contends that the facts underlying Mu-sick’s pleas justify a third-felony offender charge under our reading of Stoudemire, he shall have leave to retry Musick on the supplemental information. To that end, the trial court shall, upon receiving notification from the prosecutor prior to resentencing, vacate the judgment of conviction and grant a new trial of Musick as a third-felony offender. 1

We are unpersuaded that the prosecutor abused his discretion by instituting habitual offender proceedings against Musick. See People v Gwinn, 111 Mich App 223, 253-254; 314 NW2d 562 (1981), lv den 417 Mich 949 (1983).

Affirmed as to defendants Tucker and Beckom. Affirmed in part, reversed in part, and remanded as to defendant Musick.

1 It is clear from the record that sentencing on two of the three prior convictions set forth in the supplemental information was accomplished in one proceeding. At a minimum, these two convictions would count as only one offense under our reading of Stoudemire, and it would therefore be improper to retry Musick as a fourth-felony offender.