[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Cass Circuit Court. LC No. 12-010170-FC.
Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.
[311 Mich.App. 15] Jane E. Markey,
Defendant appeals by right his convictions, following a jury trial, of conspiracy to commit armed robbery, MCL 750.529, armed robbery, MCL 750.529, unlawful imprisonment, MCL 750.349b, larceny from a motor vehicle, MCL 750.356a(1), carrying a weapon with unlawful intent, MCL 750.226, unlawfully driving away an automobile, MCL 750.413, larceny in a building, MCL 750.360, and receiving and concealing stolen property $200 or more but less than $1,000, MCL 750.535(4)(a). The trial court sentenced defendant to concurrent prison terms of 8 to 20 years [311 Mich.App. 16] for the conspiracy and armed robbery convictions, 4 to 15 years for the unlawful imprisonment conviction, and time already served for the remaining convictions. We vacate defendant's conviction and sentence for carrying a dangerous weapon with unlawful intent, but affirm defendant's other convictions and sentences. The evidence established that defendant used a BB gun; however, a BB gun does not come within the meaning of " any other dangerous or deadly weapon or instrument" under MCL 750.226.
I. FACTUAL SUMMARY
Defendant's convictions arise out of the robbery of a 21-year-old pizza delivery driver. Four young men had conspired to commit the crime by having a female friend place an order for food to be delivered to an abandoned house. The trial resulting in defendant's convictions was his second; defendant's first trial resulted in the trial court declaring a mistrial when the jury was unable to reach a verdict.
The testimony at trial showed Michael Smith and Anteyon Russell were identified from their clothing as two of three or four black males that a citizen had observed near the scene of the crime. Russell pleaded guilty to conspiracy to commit armed robbery and several other crimes as part of an agreement for his truthful testimony against defendant in the instant case. Detective Dan Wiggins obtained the fingerprints of Smith and Martrell Jones from pizza boxes he located during the criminal investigation. Jones entered into a guilty plea on multiple charges for the armed robbery of the victim as part of a plea agreement for the dismissal of certain charged offenses in exchange for his truthful testimony against defendant in the instant case.
[311 Mich.App. 17] Martrell Jones testified that he lived in Chicago where he met Michael Smith and defendant through his high school football team. In early April 2012, Jones was on spring break and decided to go to Michigan for a basketball tournament at Smith's invitation. Defendant came with Jones and Smith on a train from Chicago to South Bend; all three are friends. Defendant paid Smith's travel expenses. Smith asked his uncle, Paul Williams, to pick him up at the South Bend Airport, where the train from Chicago also deposits passengers. When Williams arrived, Jones and defendant were also there, and Williams
took the three of them to his home near Walter Ward Park in Dowagiac.
Anteyon Russell testified that after defendant, Smith, and Jones got to Dowagiac, defendant, an acquaintance of Anteyon, but not a friend, suggested the idea of committing an armed robbery. According to Anteyon, defendant said he had done " home delivery robberies" of pizza delivery men in Wisconsin. Rolandis Russell is the older brother of Anteyon. Anteyon had been in the company of Smith, Jones and defendant a few days before the robbery. Rolandis heard defendant suggest a robbery, but Rolandis declined to participate.
Jones testified that defendant, Anteyon, and Smith smoked marijuana and played basketball the morning of the robbery. Defendant suggested they commit an armed robbery, as he had done the day before. Jones first declined, but defendant said that he needed money to get back to Chicago. Defendant specifically suggested robbing a delivery person. Smith testified for defendant, and claimed that sometime later, while he and the codefendants were playing inside Williams's house with a rifle-type BB or pellet gun, they shot out the glass on a stove with it. Williams asked them to leave his home as a consequence.
[311 Mich.App. 18] Anteyon testified that the four men met at Anteyon's grandmother's house before leaving to play basketball and again shoot a BB gun recreationally. Defendant again brought up the topic of a robbery, saying he knew who to call and " set it up." The codefendants found an empty house and determined it would be a suitable location for the planned crime. Anteyon suggested he had a gun that might work and went home to obtain a black BB gun pistol that was later used in the robbery of the victim. Anteyon gave the black BB gun to defendant. Anteyon also testified that once he was back at the unoccupied house, which had no electricity, defendant called a female friend to place an order with Pizza Hut. While the group waited inside the house for the pizza to arrive, they drank a pint of whiskey and planned " who was gonna do what."
Jones testified that Anteyon went to his grandmother's house to change his clothes and get a BB gun, which looked like a " [h]andgun." Someone suggested they call Pizza Hut, and defendant called his girlfriend to have her do so, instructing her to " 'get a lot of pizzas,'" and giving her an address for the delivery. The group then walked to the vacant house they had earlier selected to wait and plan " who was gonna do what . . . ." Defendant, who asked to be called " Pistol" according to Anteyon, elected to hold the gun to the victim's face, while Smith held the victim and Anteyon went through his pockets. Jones agreed to take the victim's car and be the driver.
Anteyon further testified that when car lights appeared from down the street, Jones went out the back sliding door; defendant and Smith went outside to the front, and Anteyon waited inside the house. Defendant was to initiate the robbery by signaling with the words, " 'Dad, the pizza man here [sic].'" Anteyon heard the [311 Mich.App. 19] signal from defendant and once the crime was underway, went through the victim's pockets as planned. Anteyon took money, a cellular telephone and a Nintendo DS game system from the victim. Jones testified that when the group saw the victim's car approaching, Jones went out the side door to position himself out front to steal the victim's car. After Smith " lured" the victim into the house, Jones jumped in the car and confirmed the keys were in it. Anteyon came out of the house with the victim's wallet but went back for the pizzas. Smith and defendant then came out, and the four drove off.
Anteyon testified that after the robbery, the four men got into the victim's car and drove off in it, with Jones driving as planned. They drove through a cornfield and stopped along the way near a railroad viaduct so Anteyon could throw the victim's cellular telephone out the car window, fearing its GPS tracking device. He also disposed of a Nintendo DS game. Defendant never gave Anteyon his gun back, which Anteyon last saw when defendant was brandishing it during the crime. According to Anteyon, defendant tried to remove the license plate from the victim's car because he wanted to take the car back to Chicago.
Jones testified that defendant originally wanted to drive back to Chicago, but Jones did not know how to drive. As they were making their escape, Jones slowed, and Anteyon threw the victim's cellular telephone out the window. They proceeded through a field before taking a laptop computer from the back seat and abandoning the car. Defendant and the group divided the money, ate pizza and recapped the crime. Anteyon testified that the four men split the victim's cash equally, ate pizza, boasted about their roles in the crime and how " we got away with it[.]" Later, Rolandis [311 Mich.App. 20] picked up Smith and Anteyon and took them back to Anteyon's grandmother's house. Smith then asked Anteyon to walk him home, and as they did so, the police stopped them and inquired about the robbery. Smith and Anteyon lied to the police, denying any knowledge of the crime. Jones testified that Smith left with Anteyon but returned some time later, saying that " the cops was on us . . . ." Jones, Smith and defendant called another uncle of Smith's who drove them to the South Bend Airport, where they took a train back to Chicago.
Smith, a childhood friend of Anteyon's from Dowagiac who had moved to Chicago, testified for the defense that he had contacted Anteyon in advance to make arrangements to get together while Smith was in town. Smith also testified that he, Jones and Anteyon planned the robbery of the victim. Smith testified that he had pleaded guilty to his involvement in the robbery and that defendant was not involved in either the planning or commission of the robbery. During cross-examination, Smith admitted that during the course of the investigation, he told the police on two separate occasions that defendant was involved in the robbery and told them that defendant pointed the gun at the victim. While during defendant's trial Smith denied that a gun was used in the crime, when Smith entered his own guilty plea he had testified that " [a] pellet gun, BB gun," was used in the crime.
Defendant testified that contrary to the rendition of events by Anteyon and Jones, after the basketball activity, he left by himself and went to Louis Thomas's apartment. When he arrived there at 7:00 p.m., no one was home. He watched movies and a basketball game alone, until Jones, Smith and Anteyon arrived about 10:00 p.m. Defendant was surprised to see they had [311 Mich.App. 21] pizza boxes, a laptop computer and $50 to $75 in cash, since neither Smith nor Jones had any money when they left Chicago. Defendant testified that none of the three told him anything about a robbery that night or anytime while they were in Dowagiac, and defendant never saw a BB pistol the entire time he was in Dowagiac. Defendant was surprised to learn about the robbery when Smith told him the following Monday.
The jury convicted defendant of the crimes listed at the start of this opinion, and the trial court sentenced defendant as noted. Defendant now ...