People v. Launsburry , 217 Mich. App. 358 ( 1996 )

551 N.W.2d 460 (1996) 217 Mich. App. 358

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Stephen LAUNSBURRY, Defendant-Appellant.

Docket No. 178536.

Court of Appeals of Michigan.

Submitted April 16, 1996, at Grand Rapids. Decided June 25, 1996, at 9:15 a.m. Released for Publication August 12, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

State Appellate Defender by Debra A. Gutierrez, Detroit, for defendant on appeal.

Before McDONALD, P.J., and MARKMAN and JOHNSON,^[*] JJ.

McDONALD, Presiding Judge.

Following a jury trial, defendant was convicted of two counts of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, kidnapping, M.C.L. § 750.349; M.S.A. § 28.581, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). All the convictions except for one count of first-degree felony murder and for felony-firearm were vacated, and defendant was sentenced to a two-year term of imprisonment for the felony-firearm conviction, which is to be served consecutively to and before the nonparolable life sentence for the murder conviction. Defendant now appeals as of right from both his convictions and sentences. We affirm.

On November 26, 1993, defendant and codefendant, Gregory Wines, intending to steal a vehicle in order to leave town, flagged down the victim's car. The victim was an expectant mother who was the lone occupant of the vehicle. After the victim stopped, defendant got into the passenger side of the vehicle. Wines sat directly behind the victim. Defendant pulled a .22 caliber revolver from his waistband and told the victim to follow his directions. After traveling for a time, defendant told the victim to pull over and stop the vehicle. Defendant ordered the victim out of the car. While Wines remained in the vehicle, defendant walked the victim toward a factory building. In defendant's first two statements to the police defendant admitted that when he and the victim came to a wall of the building, he shot the victim twice in the back of the head. However, at trial, defendant testified it was codefendant Wines who shot the victim after defendant made the victim get down on her hands and knees. Defendant claims he agreed to take the blame for the shooting because he was a juvenile and would not be subject to as harsh a penalty as codefendant. Defendant stated he was willing to take the "rap" even though his codefendant was the person that turned him in. Defendant does not dispute that he and Wines planned the robbery in advance and that defendant acquired the gun and ammunition used in the murder.

On appeal, defendant first claims the trial court erred in instructing the jury with regard to the elements of felony murder. We find no error. Defendant failed to object to the instructions below, and the instructions given fairly presented the issues to be tried and sufficiently protected defendant's rights. People v. Pollick, 448 Mich. 376, 531 N.W.2d 159 (1995); People v. Caulley, 197 Mich.App. 177, 494 N.W.2d 853 (1992).

We also find no merit in defendant's claim certain conduct by the prosecutor denied him his right to a fair trial. Once again defendant's failure to object below limits our review of his claim on appeal. Absent an objection or a request for a curative instruction, this Court will not review alleged prosecutorial misconduct unless the misconduct is sufficiently egregious that no curative instruction would counteract the prejudice to defendant or unless manifest injustice would result from failure to review the alleged misconduct.

People v. Allen, 201 Mich.App. 98, 505 N.W.2d 869 (1993); People v. Gonzalez, 178 Mich.App. 526, 444 N.W.2d 228 (1989). Neither situation is present here. A prosecutor may argue from the facts that a witness, including the defendant, is not worthy of belief, People v. Viaene, 119 Mich.App. 690, 326 N.W.2d 607 (1982), and is not required to state inferences and conclusions in the blandest possible terms. People v. Marji, 180 Mich.App. 525, 447 N.W.2d 835 (1989). Although the prosecutor went beyond proper comment regarding the evidence when he called the defendant a "moron," an "idiot," and a "coward," given the overwhelming evidence of defendant's guilt and the isolated nature of the comments, we do not believe the comments rise to the level of error requiring reversal. People v. Bahoda, 448 Mich. 261, 531 N.W.2d 659 (1995). Finally, defendant's claim that his counsel's failure to object to the contested prosecutorial comments constituted a deprivation of his right to the effective assistance of counsel must also fail. To show ineffective assistance of counsel, a defendant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557 (1994). Because the evidence of defendant's guilt was overwhelming, defendant cannot meet this burden.

Defendant next claims the trial court erred in sentencing him as an adult rather than as a juvenile. We disagree. Review of a trial court's decision to sentence a minor as a juvenile or as an adult is a bifurcated one. First, the trial court's factual findings supporting its determination regarding each factor enumerated in M.C.L. § 769.1(3); M.S.A. § 28.1072(3) are reviewed under the clearly erroneous standard. People v. Lyons (On Remand), 203 Mich.App. 465, 513 N.W.2d 170 (1994). The trial court's factual findings are clearly erroneous if, after review of the record, this Court is left with a definite and firm conviction that a mistake has been made. Id. Second, the ultimate decision whether to sentence the minor as a juvenile or as an adult is reviewed for an abuse of discretion. Id.

A review of the record reveals the trial court carefully considered defendant's prior criminal record, his age, mental and physical maturity, potential for rehabilitation, the availability of treatment in the adult prison, and the circumstances surrounding the offense. The court's findings were not clearly erroneous and, given the severity of the offense and the inability to predict whether defendant would still be dangerous at the age of twenty-one, we find no abuse of discretion in the court's decision to sentence him as an adult. M.C.L. § 769.1(3); M.S.A. § 28.1072(3); Lyons, supra; People v. Black, 203 Mich.App. 428, 513 N.W.2d 152 (1994); People v. Cheeks, 216 Mich.App. 470, 549 N.W.2d 584 (1996). Contrary to defendant's unsupported assertions on appeal, the trial court's failure to conduct educational and psychological testing on defendant did not deprive him of an accurate hearing. The court had all the statutorily required evidence before it and rendered its decision in accordance with applicable law and procedures.

Finally defendant claims his status as a juvenile renders the mandatory sentence of life imprisonment without the possibility of parole cruel or unusual punishment. We disagree. Statutes are presumed to be constitutional, and this Court must construe them as being constitutional absent a clear showing of unconstitutionality. People v. Thomas, 201 Mich.App. 111, 505 N.W.2d 873 (1993). Our Supreme Court has already ruled a mandatory life sentence without the possibility of parole for an adult is not cruel or unusual punishment. People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976). In determining whether a punishment is cruel or unusual, one must look to the gravity of the offense and the harshness of the penalty, compare the penalty to those imposed for other crimes in this state as well as the penalty imposed for the instant offense by other states, and consider the goal of rehabilitation. People v. Bullock, 440 Mich. 15, 485 N.W.2d 866 (1992); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972).

Applying these factors to the instant case, defendant concedes murder is a serious offense and that the punishment imposed in this case has been held to be proportionate to the offense. Hall, supra. Other crimes in this state that carry the same sentence include the manufacture, delivery, or possession with intent to deliver or manufacture more than 650 grams of a controlled substance, M.C.L. § 333.7401(2)(a)(i); M.S.A. § 14.15(7401)(2)(a)(i); premeditated murder, M.C.L. § 750.316; M.S.A. § 28.548; treason, M.C.L. § 750.544; M.S.A. § 28.812, and placing explosives with intent to destroy and causing injury to a person, M.C.L. § 750.207; M.S.A. § 28.404. A sample of the other states that permit sentences of life imprisonment without the possibility of parole for minors include Washington, Massachusetts, Pennsylvania, Illinois, and Delaware. State v. Massey, 60 Wash.App. 131, 803 P.2d 340 (1990); Commonwealth v. Diatchenko, 387 Mass. 718, 443 N.E.2d 397 (1982); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); People v. Rodriguez, 134 Ill.App.3d 582, 89 Ill.Dec. 404, 480 N.E.2d 1147 (1985); People v. Spence, 367 A.2d 983 (Del.1976). The fourth factor, the need for rehabilitation, is taken into consideration by Michigan courts when they determine whether juvenile defendants should be sentenced as adults rather than as juveniles. M.C.L. § 769.1(3)(a)-(f); M.S.A. § 28.1072(3)(a)-(f); Lyons, supra at 468-469, 513 N.W.2d 170. We conclude it is not cruel or unusual punishment to sentence a juvenile to life imprisonment without the possibility of parole. The crime of first-degree murder is the most serious offense possible to commit and should be dealt with harshly. See Hall, supra; People v. Hamp, 110 Mich.App. 92, 312 N.W.2d 175 (1981). Michigan imposes the same sentence for crimes other than murder, and other states have imposed the same sentence for the crime of murder. Finally, the need to consider rehabilitation is already set forth as a factor to be considered in sentencing. We also note Michigan case law and statutes have treated juveniles as adults. In People v. Hana, 443 Mich. 202, 504 N.W.2d 166 (1993), our Supreme Court stated there is no constitutional right to be treated as a juvenile. In addition, our Legislature has enacted M.C.L. § 712A.4; M.S.A. § 27.3178(598.4), which allows a probate court to waive jurisdiction over cases involving children who have obtained the age of fifteen years and are accused of committing crimes that if committed by an adult would be felonies, as well as M.C.L. § 600.606; M.S.A. § 27A.606, which provides for automatic waiver of individuals between the ages of fifteen and seventeen from the probate court to the circuit court if they are charged with committing first-degree murder. The trial court's imposition of a life sentence without the possibility of parole on a sixteen-year-old does not constitute cruel or unusual punishment.

Affirmed.

NOTES

[*] Charles W. Johnson, 57th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.