People of Michigan v. Deshawn Andrew Boylan

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 24, 2018
Plaintiff-Appellee,
v No. 335556
Muskegon Circuit Court
DESHAWN ANDREW BOYLAN, LC No. 16-000772-FC
Defendant-Appellant.
Before: GLEICHER, P.J., and M. J. KELLY and CAMERON, JJ.
PER CURIAM.
A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), arising
from Robert Gee’s shooting of Jacob Rameau, who pursued defendant after defendant stole a car.
On appeal, defendant argues that the prosecution presented insufficient evidence that he caused
Rameau’s death, that his trial counsel was ineffective, and that the trial court did not properly
instruct the jury on the elements of felony murder. Although defendant’s trial was not perfect,
we discern no errors requiring relief and affirm.
I. BACKGROUND
In the early morning hours of June 26, 2014, Robert Gee shot and killed Jacob Rameau.
The evening before, Rameau and his brother, Christopher Hotz, went to DJ’s Pub and Grill in
Muskegon. Hotz parked his car in the lot but left his windows rolled down and his keys inside.
Rameau drove separately on a motorcycle and parked nearby. That same evening, a group of
men, including defendant and Gee, decided to visit DJ’s Pub. The driver of their party, Harry
McBride, parked next to Hotz’s vehicle in the parking lot.
When defendant’s group left, McBride, Gee, and two other men returned to McBride’s
car. Defendant delayed, looking inside nearby vehicles. He entered Hotz’s car, found the keys,
started the engine, and pulled away from the bar. McBride did not want to follow defendant, but
testified that Gee pressured him to do so. By this time, Hotz and Rameau had exited the bar and
saw defendant driving away in Hotz’s car. Rameau jumped on his motorcycle and took up chase
while Hotz called 911 to report the theft.
Defendant, followed by McBride, followed by Rameau drove along at high speeds.
Eventually, Rameau passed McBride and pulled alongside defendant who had stopped abruptly
on a residential street. Gee pulled out a gun, leaned out the window, and fired several shots at
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Rameau. Rameau pulled away and McBride pulled alongside defendant. McBride heard
defendant state that he had intended to “pop” Rameau before Gee started shooting.1 Gee then
fired another shot in the motorcycle’s direction.
Eventually, defendant abandoned the stolen car. He and Gee searched it, stole various
items, and then wiped the vehicle to remove any fingerprints. A local resident found Rameau
lying on her front yard next to his motorcycle. She called 911, but Rameau died before he could
be transported to the hospital. The next day, defendant, Gee, and two other men travelled to a
pawn shop to sell the items they stole.
Defense counsel argued that there was no evidence that defendant aided and abetted Gee
in murdering Rameau or had any intent to harm Rameau. The jury rejected this defense and
convicted defendant of felony murder based on the underlying felony of larceny. Defendant now
appeals.
II. SUFFICIENCY OF THE EVIDENCE
Defendant contends that the prosecution presented insufficient evidence to establish that
he was the factual and proximate cause of Rameau’s death because Gee’s decision to shoot
Rameau was not foreseeable.2 We review de novo a challenge to the sufficiency of the evidence,
examining the “record evidence . . . in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond a reasonable doubt.” People v Roper, 286 Mich App 77, 83; 777 NW2d 483
(2009). We must resolve all conflicts in the evidence in favor of the prosecution. People v
Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). “Circumstantial evidence and
reasonable inferences drawn from it may be sufficient to prove the elements of the crime.” Id.Generally, the prosecution must prove that a defendant’s act was both the factual and
proximate cause of the victim’s death. See People v Feezel, 486 Mich 184, 194; 783 NW2d 67
(2010). “Factual causation exists if a finder of fact determines that ‘but for’ defendant’s conduct
the result would not have occurred.” Id. at 194-195.
Proximate causation is a legal construct designed to prevent criminal
liability from attaching when the result of the defendant’s conduct is viewed as
too remote or unnatural. If the finder of fact determines that an intervening cause
supersedes a defendant’s conduct such that the causal link between the
defendant’s conduct and the victim’s injury was broken, proximate cause is
lacking and criminal liability cannot be imposed. Whether an intervening cause
supersedes a defendant’s conduct is a question of reasonable foreseeability.
Ordinary negligence is considered reasonably foreseeable, and it is thus not a
1
There was evidence that defendant was also carrying a handgun that night.
2
Gee was convicted of first-degree murder after a bench trial. See People v Gee, unpublished
per curiam opinion of the Court of Appeals, issued March 14, 2017 (Docket No. 326634).
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superseding cause that would sever proximate causation. In contrast, gross
negligence or intentional misconduct on the part of a victim is considered
sufficient to break the causal chain between the defendant and the victim because
it is not reasonably foreseeable. [Id. at 195 (quotation marks and citations
omitted).]
These causation principles apply to first-degree felony murder. Felony murder is a
murder committed “in the perpetration of, or attempt to perpetrate” various felonies, including
“larceny of any kind.” MCL 750.316(1)(b). By covering a murder committed “in the
perpetration of” an enumerated felony, the Legislature intended to criminalize deaths caused
“during the uninterrupted chain of events surrounding the commission of the predicate felony.”
People v Gillis, 474 Mich 105, 121; 712 NW2d 419 (2006). However, there must be a sufficient
relationship between the homicide and the predicate felony to establish that the homicide was
“incident to the felony and associated with it as one of its hazards.” Id. at 127 (quotation marks
and citation omitted).
A jury could find defendant guilty of felony murder despite that he did not inflict the fatal
injury. Rather, when a person “sets in motion a chain of events which were or should have been
within his contemplation when” he acted, that person will “be held responsible for any death
which by direct and almost inevitable sequence results from the initial criminal act.” People v
Podolski, 332 Mich 508, 515-516; 52 NW2d 201 (1952) (quotation marks and citation omitted).
The question for the jury is not whether the defendant directly caused the homicide, but rather
whether the homicide had a causal relationship with the defendant’s commission of the predicate
felony. See Gillis, 474 Mich at 127; Podolski, 332 Mich at 515-516; see also People v Carines,
460 Mich 750, 769; 597 NW2d 130 (1999) (“We wish to emphasize that we have never held that
a defendant must participate in the actual killing to be guilty of felony murder. To the contrary,
our case law establishes that, in certain circumstances, a defendant may be held responsible for
the actions of a co-felon.”); People v Smith, 56 Mich App 560, 567; 224 NW2d 676 (1974)
(rejecting the contention that the jury had to find that the defendants caused the victim’s death
and stating that the jury only had to find that the killing was the direct cause or result of the
perpetration of the felony).
The prosecution presented evidence that defendant left DJ’s pub with Gee and looked
inside parked vehicles. Surveillance footage showed defendant entering Hotz’s car. Defendant’s
friends testified that defendant boasted to Gee when he found Hotz’s keys. The testimony
suggested that defendant formed the intent to steal Hotz’s car at that moment and that his
companions were aware of what he was doing. McBride also testified that Gee cajoled him into
following defendant as he drove away. The jury could infer that defendant and Gee were
working in concert or at least had some understanding that Gee would follow defendant. See
People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002) (stating that, if evidence is
relevant and admissible, it does not matter that it gives rise to multiple inferences or that the
inferences give rise to further inferences).
The surveillance footage revealed that Hotz and Rameau caught defendant in the act.
The jury could infer from that evidence that defendant then knew the jig was up. At a minimum,
the evidence regarding the ensuing chase established that defendant would have been aware that
he was being followed when Rameau caught up with him while driving his motorcycle at a high
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rate of speed. McBride caught up to defendant at the intersection when the motorcyclist passed
him and proceeded through the light in hot pursuit of defendant. The chase scenario from that
point on suggested that defendant was trying to lose Rameau. The jury could also find that
defendant knew that Gee and his companions were following right behind.
The testimony showed that defendant sped off down Hackley Street at a high rate of
speed and that Rameau was undeterred. Rameau passed other cars and proceeded through the
light after defendant. Defendant then turned onto Jefferson and stopped rather abruptly, within a
few houses of the corner. The jury could infer that defendant pulled over because he intended to
confront Rameau or wanted to give his companions time to catch up and confront him.
McBride and another man in McBride’s car, Everett Glover, both testified that they knew
Gee had a gun. Glover also testified that he saw defendant with a gun earlier in the day.
Glover’s testimony suggested that it was common knowledge among those who knew Gee that
he carried a gun. If Gee’s friends and associates—McBride and Glover—knew that he carried a
gun, a reasonable jury could infer that Gee’s brother-in-law, defendant, also possessed this
knowledge. Accordingly, the jury could infer that defendant pulled over to enable Gee to catch
up and assist him against his pursuer. When Gee arrived, he did just that—he pulled his gun and
fired at Rameau.
Even if defendant did not know that Gee had a gun before stealing the car, he would have
realized that Gee shot at Rameau. If defendant did not intend to confront Rameau or did not
agree with Gee’s actions, he had every opportunity to express his disagreement when McBride
pulled up next to him after Gee fired the first shots. Defendant could have abandoned the stolen
car then and fled on foot, he could have told Gee to let Rameau go, he could have expressed
anger at the shooting, or done any number of things to communicate that he wanted no part in
Rameau’s attack. Instead, defendant indicated that he personally was going to “pop” Rameau.
McBride then continued down the street, and Gee shot at Rameau again. Given the pathologist’s
testimony about Rameau’s injuries, a reasonable jury could find that Gee’s final shot was fatal, a
shot fired after defendant told Gee that he too had wanted to “pop” him.
Defendant proceeded to speed past McBride, and McBride followed. Defendant
eventually found a place to jump ship, and Gee helped him search the stolen car for valuables.
Again, there was no evidence that defendant demurred. Instead, he and Gee continued to act in
concert to complete the theft and get away. From the totality of this evidence, a reasonable jury
could infer that defendant and Gee acted in concert to take the car and anything within it of value
from the very start.
The evidence showed that defendant’s theft of Hotz’s car led directly and foreseeably to
Rameau’s murder. A car thief generally knows that there is a risk that a witness to the theft or a
police officer may pursue him and that the pursuit itself places the pursuer at risk of harm. In
this case, there was also evidence that defendant knew his companions had followed him and
knew that Gee was armed. A reasonable jury could infer that defendant pulled over to
orchestrate a confrontation with Rameau and ensure his escape. Given the testimony that
defendant and Gee both had guns, it was foreseeable that one or both men would use their
weapons against anyone who posed a threat to their escape. Consequently, Gee’s decision to fire
at Rameau was a natural and foreseeable consequence of the chain of events that defendant set in
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motion when he stole Hotz’s car, fled from Rameau, and then stopped to confront Rameau.
There was no unforeseen break in the causal chain relieving defendant of responsibility and we
may not interfere with the jury’s conviction.
III. INEFFECTIVE ASSISTANCE
Defendant next argues that his trial counsel was ineffective. Because the trial court did
not hold an evidentiary hearing on defendant’s claim of error, there are no factual findings to
which this Court must defer and our de novo review is for mistakes apparent on the existing
record. People v Gioglio (On Remand), 296 Mich App 12, 19-20; 815 NW2d 589 (2012), rem
on other grounds 493 Mich 864 (2012).
“ ‘Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.’ ” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009), quoting
People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). “This Court will not
substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” People v Petri, 279 Mich App 407, 411;
760 NW2d 882 (2008) (quotations omitted).
To establish an ineffective assistance of counsel claim, a defendant must
show that (1) counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have
been different. A defendant must also show that the result that did occur was
fundamentally unfair or unreliable. [People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012).]
“[T]he defendant necessarily bears the burden of establishing the factual predicate for his claim.”
People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
Defendant first asserts that defense counsel was unprepared for trial. A defendant has the
right to have counsel prepare, investigate, and present all substantial defenses. People v Chapo,
283 Mich App 360, 371; 770 NW2d 68 (2009). Defendant does not identify any particular act or
omission related to defense counsel’s purported lack of preparation that prejudiced his defense
and therefore has not established the factual predicate of his claim. See People v Caballero, 184
Mich App 636, 641-642; 459 NW2d 80 (1990) (stating that the defendant must show that the
lack of preparation resulted in “counsel’s ignorance of valuable evidence which would have
substantially benefited” the defense). In any event, it is evident from defense counsel’s voir dire
of the prospective jurors, his aggressive cross-examination of the witnesses, and his opening and
closing statements that counsel was prepared to try this case.
Defendant next argues that counsel was ineffective in failing to file a motion to quash the
information on the ground that defendant’s decision to unlawfully drive Hotz’s car away did not
foreseeably cause Rameau’s death. As already discussed, the prosecutor had sufficient evidence
to establish that defendant’s commission of or attempt to commit a larceny was the cause in fact
and proximate cause of Rameau’s murder. Counsel is not ineffective for declining to file a
frivolous or futile motion. People v Riley, 468 Mich 135, 142; 659 NW2d 611 (2003).
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Defendant also contends that counsel should have moved to quash on the ground that the
charge violated the doctrine of res judicata and amounted to a piecemeal prosecution in violation
of due process. Specifically, the prosecution initially charged defendant only of stealing Hotz’s
car. After defendant pleaded guilty to unlawfully driving away a vehicle, the prosecution
charged defendant with murder.
Our Supreme Court has applied issue preclusion to criminal prosecutions. See People v
Albers, 137 Mich 678, 685; 100 NW 908 (1904). In such cases, the criminal defendant may
prevent the prosecution from relitigating a fact that was necessarily decided in his favor during a
previous trial. Id.; see also Yeager v United States, 557 US 110, 119; 129 S Ct 2360; 174 L Ed
2d 78 (2009) (recognizing that the Double Jeopardy Clause prohibits the government from
relitigating any issue that was necessarily decided by the jury’s acquittal in a prior trial). And
this Court has recognized that res judicata may apply in the context of a criminal proceeding
when “there has been an adjudication on the merits.” People v George, 114 Mich App 204, 210;
318 NW2d 666 (1982).
Defendant’s plea-based conviction was a final adjudication on the merits and precludes
retrial on the elements of unlawfully driving away a motor vehicle. MCL 750.413 proscribes
this offense as follows: “Any person who shall, wilfully and without authority, take possession of
and drive or take away, and any person who shall assist in or be a party to such taking
possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of
a felony. . . .” However, the offense “is not a larceny because it does not require an intent to
permanently deprive a victim of property.” People v Hendricks, 200 Mich App 68, 71; 503
NW2d 689 (1993). Larceny requires proof that the defendant intended to “deprive the owner of”
the stolen property. People v March, 499 Mich 389, 401; 886 NW2d 396 (2016). By accepting
defendant’s guilty plea to unlawfully driving away a motor vehicle, the court was not required to
consider whether defendant intended to permanently deprive Hotz of his property and therefore
did not find that defendant had not committed a larceny. Accordingly, defendant’s trial for
felony murder based on the underlying charge of larceny was not precluded on res judicata
grounds.
Moreover, the doctrine of res judicata does not preclude piecemeal prosecution. The
“doctrine of res judicata was judicially created in order to relieve parties of the cost and vexation
of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication.” Pierson Sand & Gravel, Inc v Keeler Brass Co, 460 Mich
372, 380; 596 NW2d 153 (1999) (quotation marks and citations omitted). The purpose of the
doctrine is to promote fairness. Id. at 383. However, it cannot be applied to subvert the intent of
the Legislature. Bennett v Mackinac Bridge Auth, 289 Mich App 616, 630; 808 NW2d 471
(2010). And the Legislature has granted prosecutors broad discretion “to investigate criminal
wrongdoing, determine which applicable charges a defendant should face, and initiate and
conduct criminal proceedings.” Fieger v Cox, 274 Mich App 449, 466; 734 NW2d 602 (2007).
Additionally, our Supreme Court has not applied res judicata broadly in the criminal context;
instead, it has limited it to facts and claims that were necessarily decided in the first litigation.
Albers, 137 Mich at 685; see also People v Sharp, 9 Mich App 34, 39-40; 155 NW2d 719 (1967)
(applying res judicata and holding that the trial court erred when it allowed the question of first-
degree murder to go to the jury after the defendant’s conviction of assault with the intent to
murder because the most severe charge of which the defendant could have been found guilty
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after the previous conviction was manslaughter). Given the state of the law, defense counsel was
not ineffective in failing to seek dismissal on this ground.
Defendant also mentions in passing that the prosecutor’s decision to charge him with
separate crimes arising from the same transaction amounted to a “piecemeal prosecution” that
violated his right to due process. By failing to offer any meaningful analysis of this claim, he
abandoned it on appeal. See People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
Finally, defendant argues that it was unacceptable for defense counsel to meet with him
only twice. He complains that counsel failed to inform him of the trial strategy and failed to
explain the plea offers made. Defendant informed the court before trial that counsel had only
met with him twice. Counsel responded that he had spent a great deal of time preparing for this
case, had discussed the defense theory with defendant “numerous times,” and was “ready to go.”
Defendant has not identified how counsel’s failure to meet with him in person more often or to
better explain the defense theory deprived him of fair trial.
Similarly, defendant cannot establish that counsel’s failure to better explain the plea
offers deprived him of the benefit of those deals. At sentencing, defendant acknowledged that he
had been offered two plea deals—one for 18 years and one for less than 13—and that he rejected
both. He explained that he “did not want no murder case on my file because I feel deep down in
my heart and my soul that I didn’t contain or condone in that.” Defendant rejected the pleas
because he felt in his heart that he was not responsible for Rameau’s death. He cannot now show
that, but for counsel’s inadequate advice, he would have accepted the offers. See People v
Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). Accordingly, defendant has not
established that he is entitled to a new trial.
IV. INSTRUCTIONAL ERRORS
Defendant finally argues that the trial court erred in several respects when it instructed
the jury on the elements of felony murder on an aiding and abetting theory. After the court
completed its instructions and released the jury for deliberation, it asked the parties if they had
“any further additions or corrections or exceptions to the instructions.” The prosecutor stated
that she did not and defense counsel stated, “[n]ope, I don’t either. Thank you, Judge.” Defense
counsel thereby approved the instructions. See People v Kowalski, 489 Mich 488, 504-505; 803
NW2d 200 (2011). An express approval constitutes waiver and, for that reason, there is no error
to review. Id. at 504. Accordingly, we shall limit our review to defendant’s subchallenge—that
counsel’s agreement with the instructions amounted to ineffective assistance. And we review de
novo whether the trial court properly instructed the jury and whether the court properly
interpreted the statutory elements of a claim. Martin, 271 Mich App at 337-338.
“A criminal defendant has a constitutional right to have a jury determine his or her guilt
from its consideration of every essential element of the charged offense.” Kowalski, 489 Mich at
501. We review the instructions as a whole to ensure that the elements of the charged offense
have been submitted to the jury in a manner that is “neither erroneous or misleading.” Id.
(quotation marks and citation omitted).
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Instructional errors that omit an element of an offense, or otherwise misinform the
jury of an offense’s elements, do not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
Accordingly, an imperfect instruction is not grounds for setting aside a conviction
if the instruction fairly presented the issues to be tried and adequately protected
the defendant’s rights. [Id. at 501-502 (quotation marks and citations omitted).]
The trial court patterned its instruction after M Crim JI 16.4 but modified it to reflect the
evidence that Gee was the person who shot Rameau as part of a common enterprise. It instructed
the jury that the prosecutor had to prove each of the following elements:
First, that [Gee] caused the death of [Rameau]—that is, that [Rameau] died as a
result of being shot by [Gee].
Second, the prosecutor must prove that [Gee] and [defendant] had one of
three states of mind. Either an intention to kill, an intention to do great bodily
harm to [Rameau] or knowingly created a very high risk of death or great bodily
harm, knowing that death or such harm would be the likely result of his actions.
However, [Gee] and [defendant] need not share the same state of mind.
Third, the prosecutor must prove that when [Gee] did the act that caused
the death of Mr. Rameau, [Gee] or [defendant] were committing or attempting to
commit or helping someone else commit the crime of larceny of any kind.
Defendant argues that the trial court erroneously failed to instruct the jury that it had to
find that he caused Rameau’s death before it could find him guilty of felony murder. As
previously noted, however, the prosecution was not required to prove that defendant personally
killed Rameau. “In cases where the felons are acting intentionally or recklessly in pursuit of a
common plan, . . . liability may be established on agency principles.” People v Aaron, 409 Mich
672, 731; 299 NW2d 304 (1980). That is, the prosecution need only prove that the defendant
had the mens rea for murder and that the murder—even if caused by an accomplice—occurred
during the defendant’s commission or attempted commission of the enumerated underlying
felony and was one of the hazards accompanying the defendant’s commission of that offense.
See Gillis, 474 Mich at 127; Carines, 460 Mich at 771 (stating that the defendant must
deliberately participate in the underlying felony in which the victim was killed, must act with
malice, and the death must not be totally unexpected or accidental); Podolski, 332 Mich at 515-
516; Smith, 56 Mich App at 567. Consequently, the trial court’s instruction—although
awkwardly worded—adequately reflected the elements of felony murder and counsel’s approval
was not unreasonable.
Defendant also maintains that the court’s instruction on the charge’s third element was
improper as it allowed the jury to find defendant guilty even if only Gee committed or attempted
to commit the larceny. On its face, the instruction does appear to allow the jury to find defendant
guilty of felony murder if Gee murdered Rameau during the commission of any larceny, even if
it found that defendant did not commit, attempt to commit, or help commit a larceny. But when
read as a whole and in context, the instructions adequately conveyed that the jury had to find that
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defendant committed or attempted to commit a larceny or helped commit a larceny and that Gee
killed Rameau during defendant’s perpetration of those acts.
Although the court used the disjunctive “or” in the phrase “[Gee] or [defendant] were
committing or attempting to commit or helping someone else commit the crime of larceny of any
kind,” the court also instructed the jury that it had to find that the men “were” committing,
attempting, or helping. The term “were” refers to both subjects rather than just one, which
suggests that the jury had to find that both men committed, attempted, or helped with the
underlying larceny when Gee shot Rameau. Additionally, after instructing the jury on larceny
and attempt, the court clarified that the “[d]efendant must have been either committing or
helping someone else commit the crime of larceny. . . .” The court then instructed the jury on
what it means to help another commit a crime. Finally, the court instructed the jury on the
manner in which it should determine whether Rameau’s death occurred during the perpetration
of the larceny:
[I]n determining the act causing death in this case occurred while the defendant
was committing or helping someone else commit the crime of larceny, you should
consider the length of time between the commission of the larceny and the
murder, the distance between the scene of the larceny and the scene of the murder,
whether there is a causal connection between the murder and the larceny, whether
there is a continuity of action between [the] larceny and the murder, and whether
the murder was committed during an attempt to escape.
This instruction, when considered with the others already noted, emphasized that Rameau’s
death had to have occurred during defendant’s perpetration of the underlying offense.
Accordingly, the instructions as a whole presented the correct elements and adequately protected
defendant’s rights.
Defendant also states that it was error to allow the jury to convict on the basis of an
alleged larceny of the car or the speaker box taken from the car. He notes that unlawfully
driving away a car does not amount to larceny and the theft of the speaker box occurred after
Rameau had been shot. It is true that defendant pleaded guilty to unlawfully driving away a
vehicle and that unlawfully driving away a vehicle is not a larceny. However, the prosecution
may charge a person with larceny for stealing a vehicle. See MCL 750.356 (proscribing the
“stealing” of “goods” or “chattels”). That defendant later abandoned Hotz’s vehicle does not
mean that he did not intend to permanently deprive Hotz of his property when he took it. See
People v Goodchild, 68 Mich App 226, 233-234; 242 NW2d 465 (1976) (recognizing that the
prosecutors can charge car thieves with unlawfully driving away a motor vehicle or larceny, and
stating that the evidence supported the charge of felony murder premised on larceny even though
the defendant abandoned the car after causing a fatal crash because it could be inferred from the
evidence that the defendant took the car with the intent to steal).
The predicate felony could also be based on the theft of the items within Hotz’s car. For
purposes of felony murder, the murder must occur within the “unbroken chain of events
surrounding the predicate felony.” Gillis, 474 Mich at 125. As such, that defendant and Gee did
not secure the subject items until after Gee shot Rameau did not prevent the consideration of that
theft. Indeed, a reasonable jury could infer that defendant intended to steal the items inside the
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from the moment that he drove the car away. See People v Bradovich, 305 Mich 329, 332-333;
9 NW2d 560 (1943) (stating that a larceny is complete the moment the defendant moves the
property with the intent to steal and remains complete even though he or she abandons the
property before leaving the store). These instructions, on the whole, adequately stated the
elements of felony murder and protected defendant’s rights. Therefore, defense counsel had no
obligation to object to them.
Finally, defendant maintains that the court erred when it instructed the jury on aiding and
abetting. The court instructed the jury that it could find defendant guilty of aiding and abetting
Gee in the commission of felony murder as follows:
Now, as I said, the Defendant is charged with the crime of first-degree
felony murder, and this includes intentionally assisting someone else in
committing the crime. That’s called aiding and abetting. Anyone who
intentionally assists someone else in committing a crime is as guilty as the person
who directly commits it and can be convicted of that crime as what is called an
aider and abett[o]r.
To prove that charge, the prosecutor must prove beyond a reasonable
doubt, first, that the alleged crime was actually committed either by the Defendant
or someone else. And it doesn’t matter whether anyone else has been convicted.
Second, the prosecutor must prove that before or during the crime, the
defendant did something to assist in the commission of the crime.
And third, the prosecutor must prove that at the time of giving the
assistance, the defendant either intended the commission of some crime or knew
that the other person intended the commission of some crime, and that the alleged
crime was either the same as the intended crime or a natural and probable
consequence of the intended crime. Doesn’t matter how much help, advice or
encouragement the defendant gave. However, you must decide whether the
defendant intended to help another commit the crime and whether his help, advice
or encouragement actually did help, advise or encourage the other crime. Now—
Or encourage the crime itself, rather.
Specifically, defendant faults the court for instructing the jury that it could find him guilty of
felony murder if it found that he intended the commission of “some crime” or knew that the
other person intended the commission of “some crime.”
The trial court’s instruction on the third element was not accurate. The court should have
more clearly instructed the jury that defendant must have intended the commission of felony
murder or had knowledge that Gee intended to commit felony murder. See Carines, 460 Mich at
768 (aiding and abetting requires proof that the defendant intended the commission of the
charged crime). Nevertheless, any error was not so egregious that defense counsel’s failure to
object necessarily fell below an objective standard of reasonableness, and defendant has not
shown that the imperfect instruction prejudiced his trial.
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The court emphasized that defendant was charged with one crime: first-degree felony
murder. It then instructed the jury that it could find defendant guilty of felony murder as a
principal or by “intentionally assisting” someone. The court further instructed the jury that it had
to find that defendant did something to assist in the commission of “the crime,” which had to
refer to a felony murder committed by Gee. Although the court referred to “some crime” when
instructing the jury on the necessary intent, it was evident that the term “some crime” referred to
felony murder. The court stated that defendant’s intent to commit “some crime” or his
knowledge that Gee intended to commit “some crime” must be “the same as the intended crime
or a natural and probable consequence of the intended crime.” The latter part of the instruction
referred to Gee’s intent and informed the jury that defendant had to have intended the
commission of felony murder or knew that Gee intended to commit the crime of felony murder.
The court used the same language when it instructed the jury on aiding and abetting the lesser
included offense of second-degree murder. Accordingly, although the court should have been
clearer about the necessary intent, on the whole any defect was minor and likely had no effect on
the jury’s verdict. See Carines, 460 Mich at 772. Accordingly, we discern no error warranting a
new trial.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
/s/ Thomas C. Cameron
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