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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v VINCE ALLEN MANN, Defendant-Appellant.

UNPUBLISHED October 27, 2009

No. 281673 Wayne Circuit Court LC No. 07-005003-FC

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v THOMAS REED BUTLER, Defendant-Appellant. No. 281674 Wayne Circuit Court LC No. 07-005003-FC

Before: Murphy, P.J., and Meter and Beckering, JJ. PER CURIAM. In these consolidated appeals, defendants Vince Allen Mann and Thomas Reed Butler appeal as of right their convictions and sentences. Following a trial before Wayne Circuit Judge Vera Massey Jones and separate juries, both defendants were convicted of second-degree murder, MCL 750.317. Thereafter, the trial court sentenced Mann as an habitual offender, third offense, MCL 769.11, to 32 to 70 years' imprisonment. The court sentenced Butler as an habitual offender, second offense, MCL 769.10, to 337 months' (28 years and one month) to 60 years' imprisonment. We affirm. I. Facts and Procedural History This case arises out of the November 2006, death of Ricky Arquette. Marisa Michalak testified that at approximately 2:30 a.m. on November 20, 2006, Randall Davis, along with Robert Ashby and David Cochran, picked her up to take her to Butler's house. Butler was Michalak's boyfriend. En route to Butler's house, Michalak had Davis stop at a condominium complex. At the complex, Arquette approached the vehicle and offered Davis money for a ride. -1-

Davis agreed, although none of them had ever met Arquette before, and Arquette entered the vehicle. They then drove directly to Butler's house. Butler's house was located on Mercedes Street in Redford, Michigan. When Davis and his passengers arrived at the house, Butler was not at home. A few minutes later, however, Butler arrived with his cousin Joseph Schork and roommates Larnie Neal and Mann. Everyone conversed and then went inside the house. Michalak and Butler went upstairs to Butler's bedroom. Shortly thereafter, Michalak heard commotion downstairs and someone say, "Hey you gotta get the f**k out of here," or words to that effect. She then heard Mann call to Butler. Butler told Michalak to stay upstairs and he went downstairs. While Butler and Michalak were upstairs, everyone else "hung out" downstairs. Arquette was loud, obnoxious, and tried to do karate moves. When Arquette pushed Mann in the chest, Mann told him not to put his hands on him. When Arquette pushed him again, Mann told him to leave the house. Mann then yelled upstairs to Butler and removed his shirt in his bedroom. While in the bedroom, Mann told Schork that Arquette had swung at him and said, "Let's get him." Mann then grabbed a glass beer bottle from the kitchen, walked into the living room, and hit Arquette on the left side of the head with the bottle when Arquette's back was turned. The bottle shattered and Arquette fell to the floor. Schork testified that Butler kicked Arquette in the head as he was falling, and Butler later admitted to the same to three additional witnesses. Several other witnesses testified that as Arquette lay on the floor, Mann, Butler, Schork, Ashby, and Davis surrounded him. They repeatedly kicked him in the body, face, and head. Thereafter, Mann, Butler, and possibly others carried Arquette, who appeared unconscious, outside. They left Arquette across the street on the neighbor's lawn and then returned to the house. After a few minutes, Schork and Davis went back outside because they saw Arquette walking around. Davis then punched Arquette in the face. Arquette's head and shoulder hit the neighbor's SUV. He fell to the ground and hit his head on the cement with a loud thud. Davis and Schork left Arquette unconscious on the neighbor's driveway. In the early morning hours of November 20, police and paramedics arrived on the scene and took Arquette to the hospital for treatment. Sergeant Eric Kapelanski subsequently conducted a canvas of the neighborhood and spoke to Mann and Butler. Butler told the sergeant that at approximately 3:00 a.m., they saw four or five men assaulting someone across the street, but that the men had run away. Mann confirmed Butler's story. Neal testified that after the sergeant left, he, Mann, and Butler decided to remove a piece of the living room carpeting because Arquette's blood was on it. Arquette died in the hospital on November 28. Francisco Diaz, an assistant medical examiner for Wayne County, performed the autopsy on Arquette. Arquette had several cuts, abrasions, and bruises on his face and head. Diaz found an accumulation of blood under the scalp, primarily on the left side. There was a one-inch linear fracture of the skull, a fracture of the right orbital roof, a subdural hematoma on the left side, bleeding into the coverings of the brain, and contusions on the brain as a result of blunt trauma. Diaz explained that blunt force means force applied with a non-sharp object or surface. He opined that Arquette sustained multiple inflicted blunt injuries due to being struck several times and that the cause of death was inflicted blunt trauma, mainly to the brain, and the complications resulting from being placed on a ventilator. Diaz testified that the fracture to Arquette's skull could have been caused by falling -2-

unimpeded and hitting his head on an unyielding surface such as a vehicle, concrete, or a foot kicking his head while he was falling. He further testified that striking a person on the head with a thick bottle and with enough force and velocity could cause a subdural hematoma. Ljubisa Dragovic, the chief medical examiner for Oakland County and the only defense witness called, opined and testified that the cause of death was blunt trauma to the head and that the injuries to the base of Arquette's skull resulted from Arquette's head striking an unyielding surface, such as a floor, cement, or a metal structure. According to Dragovic, Arquette's injuries were not the result of being struck with a beer bottle or kicked in the head. Dragovic explained that the injuries were the result of a moving head striking an unyielding surface, as opposed to a stationary head being struck by a moving object. On the afternoon of November 29, Sergeant Kapelanski again visited the Mercedes Street house. He told Butler, Mann, and the other people present that Arquette had died and asked if they knew anything else about the men who assaulted him. Butler told the sergeant the same story. Neal and Michalak indicated that they had not observed anything that night. Later on November 29, Sergeant Kapelanski returned to the Mercedes Street house after being called there by fellow officers executing an unrelated search warrant in the house. Based on the evidence Sergeant Kapelanski observed

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