Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEITH ADIR CARTER, JR., Defendant-Appellant.

UNPUBLISHED May 20, 2010

No. 289986 Wayne Circuit Court LC No. 08-011715-FC

Before: METER, P.J., and MURRAY and BECKERING, JJ. PER CURIAM. Defendant appeals as of right from his convictions following a bench trial of felonious assault, MCL 750.82; discharge of a firearm at a building, MCL 750.234b; felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony, third offense, MCL 750.227b. The trial court sentenced defendant to a mandatory ten years' imprisonment for the felony-firearm conviction. Applying a fourth-offense habitual offender enhancement under MCL 769.12, the trial court sentenced defendant to concurrent sentences of 19 months to 15 years for the remaining convictions, to be served consecutively with the felonyfirearm sentence. We affirm. Defendant argues that the prosecutor presented insufficient evidence to sustain his convictions of felonious assault and discharging a firearm at a building. Specifically, defendant contends that the prosecutor failed to adequately disprove that defendant acted in self-defense. We review a challenge to the sufficiency of the evidence in a bench trial de novo. People v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). We view the evidence in the light most favorable to the prosecutor to determine whether the trial court could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id. "Circumstantial evidence and reasonable inferences drawn from it may be sufficient to establish the elements of a crime." People v Fennell, 260 Mich App 261, 270; 677 NW2d 66 (2004). As noted in People v Truong, 218 Mich App 325, 337; 553 NW2d 692 (1996), "[o]nce evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt" (citation and quotation marks omitted). An assault may be justified "if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm." People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990).

-1-

Allyn Henderson testified that during a gathering at his house during the early morning hours of August 23, 2008, defendant kept trying to pay a woman, Lisa Hood, to have sex with him. Defendant began hitting Hood, and some unidentified men pulled him away from her. Some unidentified men then tried to keep defendant away from Henderson, but defendant managed to run towards him. At that point Henderson hit defendant with his fist. Defendant then stumbled and walked "two houses down." Defendant returned with a gun and "start[ed] firing." Defendant was firing the gun in Henderson's direction. Henderson noticed several new bullet holes in his house after the incident. Hood corroborated Henderson's testimony that defendant solicited sex from her and also assaulted her on the day in question. She stated that she was inside the house when she heard shots being fired. Davone Murray testified that he attended the party at Henderson's house. Murray stated that defendant was arguing and having a physical altercation with a woman and then Henderson "pulled out a big long knife" and subsequently reached for a gun. Murray said that defendant and Henderson argued and Henderson hit defendant with the gun. Murray then "heard shots." He testified that he did not witness the shooting but that he saw Henderson with a gun and did not see defendant with a gun. Warren Baker testified that he also attended the party. substantially similar to Murray's. He provided testimony

Defendant testified that he did argue with Hood on the night in question; he stated that they ended up hitting each other. Henderson then struck him with a gun and also fired a shot somewhere, possibly in the air. Defendant stated that he picked a gun off the ground and fired it in the air once or twice to stop Henderson from shooting. Sergeant James Metiva of the Detroit Police Department testified that he interviewed defendant, who stated the following regarding the incident: "I was at 3071 Lakewood at an after hours strip party. Lisa Hood charged me $50.00 for sexual intercourse. I didn't pay her or have sex with her. Allyn wanted to charge me $100.00 so me and Allyn started to argue. He goes in his pocket and pulls out a pistol and hits me in the right ear. Then he fires a shot in the air. Then I pull out my gun and fired a shot in the air. We were outside. More arguing took place and the police came." Defense counsel argued during her closing statement that defendant acted in self-defense. The court ruled: "There is testimony that it was three bullet holes. Guilty of Discharge in or at a Building . . . ." The court also ruled: guilty of Count 4, Assault With a Dangerous Weapon, that being using a dangerous weapon to cause reasonable apprehension or fear in the mind of Mr.

-2-

Henderson, which was accomplished in this particular case based upon the testimony and the evidence presented.[1] Defendant's argument that the prosecutor presented insufficient evidence to rebut defendant's claim of self-defense is without merit. Henderson's testimony in particular indicated that defendant walked away from the scene and then returned to fire a gun. This was sufficient to prove that defendant committed the crimes in question without honestly and reasonably believing that his life was in imminent danger or that there was a threat of serious bodily harm. Heflin, 434 Mich at 502. While the testimony from various witnesses differed, "[a]ll conflicts with regard to the evidence must be resolved in favor of the prosecution." Wilkens, 267 Mich App at 738. Defendant contends that the trial court's factual findings were inadequate. However, defendant did not raise this issue in the statement of his questions presented for appeal and also did not adequately brief the issue. Accordingly, this issue has been abandoned. Lansing v Hartsuff, 213 Mich App 338, 351; 539 NW2d 781 (1995); People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001). At any rate, we find that the trial court "was aware of the issues, correctly applied the law, and sufficiently articulated its findings to satisfy MCR 2.517." People v Wardlaw, 190 Mich App 318, 321; 475 NW2d 387 (1991). Defendant argues that the trial court erred in determining that self-defense is not a proper defense to a charge of felon-in-possession or felony-firearm. We need not address this issue because the trial court, by way of its factual findings, clearly rejected defendant's claim of selfdefense. Therefore, even if the court had considered the self-defense claim in the context of felon-in-possession and felony-firearm, the outcome of the trial would not have differed. Defendant next argues that the trial court erred in failing to suppress the statement given to Sergeant Metiva because defendant's intoxication and limited mental capacity rendered the statement involuntary. The issue of the voluntariness of a statement is a question of law for a court's determination. In reviewing a trial court's findings, this Court examines the entire record and makes an independent determination of voluntariness. However, this Court gives deference to a trial court's findings, unless they are clearly erroneous. A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. [People v Jobson, 205 Mich App 708, 710; 518 NW2d 526 (1994) (citations omitted).] As stated in People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988): In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his

1

The court rejected the two possible higher charges of assault with intent to murder and assault with intent to commit great bodily harm less than murder.

-3-

lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. Metiva testified as follows during a pretrial hearing: He read defendant his constitutional rights and defendant initialed them. Defendant indicated to Metiva that he understood his rights. Defendant appeared to understand what Metiva was saying and never complained of being injured or ill. Defendant stated that he had had nine years of schooling. At no time did defendant indicate that he wanted a lawyer or that he did not want to speak with Metiva. Metiva did not recall defendant's having had "the appearance of strong fatigue." Defendant did not appear to be visibly intoxicated when Metiva spoke with him, and did not appear to be mentally disabled to Metiva when Metiva was reading him his rights. Defendant testified that he was "[h]urting" and "high" during the interrogation. He also testified that he attended "special ed classes" for reading and English during school. Defendant stated that he needed to go to the hospital during the interrogation because he had been "pistolwhipped." Defendant further stated that he asked for a lawyer. Defendant was arrested at 4:00 a.m. and was interrogated at 10:00 a.m. He claimed that "Ecstasy pills . . . last longer than six hours." The court ruled, in part: [Defendant] indicated, in fact, that he understood he had a right to counsel. In fact, he claims that he asserted that. And the

Download PEOPLE OF MI V KEITH ADIR CARTER JR.pdf

Michigan Law