People v. Perkins

314 Mich.App. 140

885 N.W.2d 900

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Floyd Gene PERKINS, Defendant–Appellant.

People of the State of Michigan, Plaintiff–Appellee,

v.Aaron Williams, Defendant–Appellant.

People of the State of Michigan, Plaintiff–Appellee,

v.Kenya Ali Hyatt, Defendant–Appellant.

Docket Nos. 323454

323876

325741.

Court of Appeals of Michigan.

Jan. 19, 2016.

Jonathan B.D. Simon, Bloomfield Hills for defendant Perkins.

Michael A. Faraone, PC, Lansing (by Michael A. Faraone ), for defendant Williams.

Ronald D. Ambrose for defendant Hyatt

Before: TALBOT, C.J., and CAVANAGH and K.F. KELLY, JJ.

K.F. KELLY, J.

These three defendants were tried jointly before separate juries. A jury convicted defendant Floyd Gene Perkins (Perkins) of first-degree felony murder, MCL 750.316(1)(b), conspiracy to commit armed robbery, MCL 750.157a, armed robbery, MCL 750.529, and felony-firearm, MCL 750.227b(1). Perkins was sentenced to life in prison for the murder conviction, 285 months to 50 years' imprisonment for both the conspiracy to commit armed robbery and armed robbery convictions, and two years' imprisonment for the felony-firearm conviction. On appeal, Perkins argues: (1) there was insufficient evidence to support his murder conviction; (2) his confession violated the Fifth and Sixth Amendments; and, (3) the judgment of sentence must be amended because Perkins' felony-firearm conviction was erroneously ordered to be served consecutively to his conviction for conspiracy to commit armed robbery. We agree that the matter must be remanded for the ministerial task of correcting Perkins' judgment of sentence, but in all other respects we affirm Perkins' convictions and sentences.

A jury convicted defendant Aaron Williams (Williams) of conspiracy to commit armed robbery, armed robbery, felon in possession of a firearm, MCL 750.224f, and felony-firearm. The jury could not reach a verdict on the felony murder charge. Williams was sentenced as a fourth habitual offender to 25 to 50 years' imprisonment for each of the conspiracy to commit armed robbery and the armed robbery convictions, 30 months to 60 months' imprisonment for the felon in possession conviction, and two years' imprisonment for the felony-firearm conviction. In lieu of a retrial on the felony murder charge, Williams later pleaded no contest to second-degree murder, for which he later received a 35 to 50 year prison term. On appeal, Williams argues there was insufficient evidence that he committed armed robbery and the trial court erred in assessing the same amount of restitution against Williams as it had against his more culpable codefendants. We affirm Williams' convictions and sentences.

A jury convicted Kenya Ali Hyatt (Hyatt) of first-degree felony murder, conspiracy to commit armed robbery, armed robbery, and felony-firearm. Because Hyatt was 17 years old when the offense occurred, the trial court held a Miller¹ hearing to determine Hyatt's sentence. It ultimately sentenced Hyatt to life without the possibility of parole for the murder conviction, 210 months to 40 years' imprisonment for each of the conspiracy to commit armed robbery and armed robbery convictions, and two years' imprisonment for the felony-firearm conviction. On appeal, Hyatt argues: 1) a police officer impermissibly encroached on the province of the jury when he identified Hyatt in a surveillance video; 2) the trial court erred in failing to instruct the jury on accident; and, 3) his sentence must be vacated because the determination of whether a juvenile should receive a life without parole sentence must be made by a jury. In light of this Court's decision in People v. Skinner , 312 Mich.App. 15, 877 N.W.2d 482 (2015), Hyatt must be resentenced so that a jury may determine whether he should receive life in prison without the possibility of parole. We otherwise affirm Hyatt's convictions and sentences. However, were it not for Skinner, we would affirm the sentencing court's decision to sentence Hyatt to life imprisonment without the possibility of parole. We therefore declare a conflict with Skinner pursuant to MCR 7.215(J)(2).

I. BASIC FACTS

On August 14, 2010, the victim, a security guard at River Village Apartments in Flint, was killed after being shot multiple times. Perkins, Williams and Hyatt each gave statements to police officer Terence Green, and each implicated himself in the murder. The statements revealed that Perkins and his family were in danger because of a dispute Perkins had with an individual. Perkins wanted to obtain a firearm to help him protect his family. Williams and Hyatt were Perkins' cousins, but were not related to one another. The three individuals devised a plan in which Perkins could obtain a gun. Williams lived in the apartment complex where the murder took place and knew that the security guards who worked there were armed. Williams borrowed a gun from an individual known as “Chief.” The idea was that Perkins, Hyatt and Williams would use the borrowed gun to rob one of the security guards of his firearm. On the night of the shooting, Williams acted drunk and disorderly in the apartment complex's parking lot in order to lure the victim out of his security car. When the victim approached Williams, Perkins and Hyatt approached from behind. Perkins grabbed the victim and held him while Hyatt drew the gun he had received from Williams. Both Perkins and Hyatt indicated that the victim reached for Hyatt's gun and the gun discharged. After that first shot, Perkins grabbed the victim's side-arm and ran away. Perkins heard additional shots as he was fleeing. Hyatt maintained that the first shot was accidental and that he subsequently “blacked out” and could not remember what happened afterwards.

An autopsy revealed that the victim had been shot three times, although there were four gunshot wound paths. One bullet wound entered the back left side of the victim's scalp, exiting near the forehead, grazing the left cheek. This same bullet then entered the top of the left shoulder, with the bullet ending up deep in the muscle on the left side of the back thorax area. Another bullet entered behind the left ear and exited the right cheek. This bullet went through the spine, severing the spinal cord. A third bullet, and fourth path, entered the left chest region and was recovered from the lower back. This bullet went through the lung, causing significant injury to the lung and bleeding inside the left chest area. While all gunshot wounds had the potential to be fatal, the pathologist testified that two were immediately incapacitating—the one that entered behind the left ear and severed the spine and the one on the left side of the chest that caused significant internal bleeding. There was no way to tell which bullet came first.

As previously indicated, Perkins, Williams and Hyatt were tried jointly before separate juries. They were convicted and sentenced as outline above and now appeal as of right.

II. DOCKET NO. 323454 (PERKINS' APPEAL)

A. SUFFICIENCY OF THE EVIDENCE

Perkins argues that there was insufficient evidence to support his felony murder conviction. Specifically, Perkins argues that the victim was not killed “while in the perpetration or attempted perpetration of a robbery” because the robbery was complete when Perkins took the victim's gun and fled from the scene.² We disagree.

“We review de novo a challenge on appeal to the sufficiency of the evidence.” People v. Ericksen, 288 Mich.App. 192, 195, 793 N.W.2d 120 (2010). “Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v. Hardiman, 466 Mich. 417, 421, 646 N.W.2d 158 (2002). “It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences.” Id. at 428, 646 N.W.2d 158. “The requirements of the aiding and abetting statute are a question of law that this Court reviews de novo.” People v. Robinson, 475 Mich. 1, 5, 715 N.W.2d 44 (2006) (footnote omitted).

In order to be convicted of first-degree felony murder, the prosecution had to prove the following elements:

(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 [MCL 750.316(1)(b)...]. [People v. Smith, 478 Mich. 292, 318–19, 733 N.W.2d 351 (2007) (internal quotation marks omitted).]

While Perkins did not fire the fatal shots, the aiding and abetting statute, MCL 767.39, provides that a defendant may be convicted as a principal if he aided or abetted in the commission of a charged crime. The statute reads:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

Therefore, in order to be convicted under an aiding and abetting theory, the prosecution must prove:

(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that 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 that [the defendant] gave aid and encouragement. [People v. Robinson, 475 Mich. 1, 6, 715 N.W.2d 44 (2006).]

More specifically to this particular case:

To prove felony murder on an aiding and abetting theory, the prosecution must show that the defendant (1) performed acts or gave encouragement that assisted the

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