PEOPLE
v.
TRIPLETT
Docket No. 48547.
Michigan Court of Appeals.
Decided April 8, 1981.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Paul G. Bruno, Assistant Prosecuting Attorney, for the people.
Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
Before: BRONSON, P.J., and N.J. KAUFMAN and M.F. CAVANAGH, JJ.
*184 N.J. KAUFMAN, J.
Defendant was convicted in a bench trial on August 9, 1979, in the Wayne County Circuit Court of: Count I assault with intent to murder, MCL 750.83; MSA 28.278, Count II assault with intent to rob being armed, MCL 750.89; MSA 28.284, and Count III felony firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced on August 20, 1979, to from 17 to 35 years on Count I, from 17 to 35 years on Count II, and to two years on Count III. Defendant appeals as of right, pursuant to GCR 1963, 806.1.
Ernesto Garza testified that be owned the Eldorado Restaurant and that on October 11, 1978, at about 10:30 p.m., he was sitting in the front of the store near the cash register when someone wearing a mask and false beard entered through the front door. The intruder was carrying a .45-caliber firearm and announced a holdup. A waitress named Maria Montes was in the restaurant and ran to the back of the kitchen. Garza heard a shot in the back kitchen area, and the robber standing near him (referred to as first robber) went down the aisleway to see what happened. Garza went to the men's room in the back and lay down on the floor. Two employees were also lying on the floor at that time. The first robber asked Garza for money and Garza replied that there was no money and told him to check the cash register. Garza heard the cash register open and then heard a bell ring. Garza further testified that the waitress, Maria Montes, was bleeding from her left arm and left chest. There was a bullet hole in the men's room door.
Kenneth Barnes was the cook in the restaurant. Barnes testified that he was in the kitchen when a person came in from the rear of the restaurant and grabbed him. The man had a gun in his hand *185 and was wearing a mask and beard. Barnes heard Maria scream and heard her run into the men's room. The second robber turned and fired the gun, hitting the door of the men's room. The robber then opened the men's room door and told Barnes to lie face down on the hallway floor. Barnes did not see the first robber but heard someone speaking to Garza. Barnes testified that Maria had been shot.
Maria Montes' testimony corroborated that of Garza and Barnes.
John Coop lived near the restaurant. He testified that he saw two people getting into a car outside the restaurant who "looked funny". The car took off when the headlights from Coop's truck shined on it. The car had one dim taillight. Coop followed the car at 80 miles per hour. He lost sight of the car for a short time but caught up with it when the car pulled onto the shoulder of the road to go around a truck. He continued following the car until he could get the license number. Coop then went back to the restaurant and gave the license number to the police.
Detective Sexton testified that the license number given to him by Coop was WBS 161. The police checked the ownership of that vehicle and determined that it ws owned by Cheryl Triplett. He further testified that the police found a .45-caliber shell casing in the restaurant.
Harry Reed, a latent print specialist, testified that he obtained prints from the housing of the cash register and from one key of the register. Reed stated that he compared the lifted prints with known fingerprints of the defendant and determined that they were the same prints.
Buckner Shahan was the officer in charge of the case. He testified that the vehicle matching the *186 license number was a 1977 Pontiac Grand Prix. The Grand Prix was reported stolen on October 12, 1978. When the defendant was arrested on October 30, Shahan found a registration for the Grand Prix in defendant's possession.
Shahan and Sergeant Anderson testified that they interviewed the defendant shortly after his arrest. Prior to the interview, Anderson read him the police department's "pre-interview advice of rights card". Shahan testified that the defendant then said that he would talk about the charges against him. The defendant told the officers that he had participated in the robbery but that he was not the man who shot the waitress. Shahan testified that the defendant "said that he couldn't tell us who was the guy who did the shooting because he feared harm to his family and himself if he had, and that he didn't know what had happened to the car or the guns after the robbery".
Shahan further testified that the defendant asked that the questioning be stopped after the defendant had denied being the person who shot the waitress.
Sergeant Anderson testified that he was present when Shahan interviewed the defendant. Anderson stated that he advised the defendant of his rights and that defendant told him that he understood them. Anderson recalled, without looking at his notes, that the defendant had told him that he was in the restaurant but was not the man who shot the girl. He recalled defendant "saying that he was fearful for his safety or his family's safety * * *". Anderson's notes were written after the conversation terminated. After refreshing his recollection from the notes, Anderson testified that defendant told him that he had gone in the front door and out the back door. Defendant also said *187 that his car was used and that after the robbery the other robber dropped defendant off at his own home and left in defendant's car.
After closing arguments, the court made findings of fact and found the defendant guilty as to all three counts.
On appeal, defendant first claims that the findings of fact by the trial judge were insufficient to support defendant's conviction of assault with intent to murder. Defendant asserts that to convict a person of a specific-intent crime through the aiding and abetting statute, the trier of fact must find that the defendant either possessed the specific intent to kill or knew that the principal had such intent. Although we agree with defendant's interpretation of the law, we do not agree with his claim regarding the insufficiency of factual findings.
Assault with intent to murder is a specific-intent crime, People v Fields, 64 Mich. App. 166; 235 NW2d 95 (1975), citing People v Phillips, 37 Mich. App. 242; 194 NW2d 501 (1971), lv den 386 Mich. 789 (1972). Cf. People v Joeseype Johnson, 407 Mich. 196; 284 NW2d 718 (1979), opinion of Justice WILLIAMS, noting that the Legislature has provided that specific intent is required in an assaultive crime when the crime is an assault with intent to do a prohibited activity.
The prosecution contends that assault with intent to murder can be a general intent crime because murder can be in either the first or second degree. That contention, however, is incorrect. When a defendant is charged with assault with intent to murder, whether the killing would have been murder in the first or second degree is immaterial, People v Scott, 6 Mich. 287 (1859). Assault with intent to murder is, thus, a specific-intent crime.
*188 The aiding and abetting statute, MCL 767.39; MSA 28.979, provides:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."
Defendant correctly notes that to be convicted as an aider and abettor the defendant must either himself possess the required intent (in this case, specific intent) or participate while knowing that his coparticipant possessed the requisite intent. People v Poplar, 20 Mich. App. 132, 136; 173 NW2d 732 (1969), stated:
"Where a crime requires the existence of a specific intent, an alleged aider and abettor cannot be held as a principal unless he himself possessed the required intent or unless he aided and abetted in the perpetration of the crime knowing that the actual perpetrator had the required intent. 22 CJS, Criminal Law, § 87; 21 Am Jur 2d, Criminal Law, § 124.
"`But it is the knowledge of the wrongful purpose of the actor plus the encouragement provided by the aider and abettor that makes the latter equally guilty. Although the guilt of the aider and abettor is dependent upon the actor's crime, the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor's wrongful purpose.' People v Ellhamer (1962), 199 Cal App 2d 777, 782; (18 Cal Rptr 905, 908)."
Either defendant's own specific intent or his knowledge that his coparticipant had the necessary specific intent may be inferred from circumstantial evidence, Fields, supra, 174. To convict *189 defendant as an aider and abettor in the present case, then, there must be evidence that either the defendant himself possessed the specific intent to murder or that he knew his coparticipant possessed that intent, and either intent may be inferred circumstantially. See People v Rigsby, 92 Mich. App. 95; 284 NW2d 499 (1979), lv den 408 Mich. 879 (1980).
The final determination to be made on this issue is whether the court made sufficient findings of fact under the above standards and, if so, whether the findings were clearly erroneous.
People v Bruce Ramsey, 89 Mich. App. 468, 473-474; 280 NW2d 565 (1979), lv den 407 Mich. 861 (1979), detailed what findings must be made by the court:
"GCR 1963, 517.1 requires the trial court, in actions tried without a jury to `find the facts specially and state separately its conclusions of law thereon'. Fact findings are sufficient if `the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts.'"
After the conclusion of the trial in the instant case, the court stated its findings regarding this issue:
"With regard to the offense of assault with intent to murder, the Court has heard the testimony of Mr. Garza, but more significantly from witnesses Maria Montes and Kenneth Barnes and the assailant who came in the rear of the Eldorado also had a weapon and had some initial conversation with Mr. Barnes in which he physically assaulted him, and in the process Miss Montes in fear attempted to run and hide in the men's lavatory. And at this point, it is testified that the assailant at the back fired a .45 caliber bullet into the *190 door, hitting Miss Montes in the left elbow, I believe, and in the left chest.
"Well, it seems fairly clear to the Court and it is not disputed at all in this record that the intent, the offer of violence to Miss Montes by the assailant, taking into consideration the nature of his being there, the weapons used, certainly satisfies this Court that there was an intent to murder. She is indeed very fortunate that she wasn't killed.
* * *
"I recall that Mr. Telek did bring to the attention of the Court on the charge of assault with intent to murder the People have not contended that this Defendant was responsible for the shots fired at Miss Montes, but Mr. Telek has advised the Court that as an aider and abettor, the transaction still continuing after the shot was fired, not having come to rest, that the law provides that one who participates in an offense with another is as guilty as that person if that person is in fact guilty.
"I find the Defendant guilty on all three counts."
We find that under Bruce Ramsey, supra, and under GCR 1963, 517.1 the court made sufficient findings of fact. The court was clearly aware of the intent issue and resolved that issue.
People v Hampton, 407 Mich. 354, 368; 285 NW2d 284 (1979), recently considered the concept of sufficiency and held:
"Due process requires that the prosecutor introduce sufficient evidence which could justify a trier of fact in reasonably concluding that defendant is guilty beyond a reasonable doubt before a defendant can be convicted of a criminal offense * * *."
Although Hampton involved a jury conviction, the Court relied upon Jackson v Virginia, 443 U.S. 307; 99 S. Ct. 2781; 61 L. Ed. 2d 560 (1979), a nonjury criminal case, in reaching its conclusion. It should *191 be noted that the present case also involves a nonjury conviction. Prior to Hampton, the standard for review of sufficiency of the evidence in nonjury criminal cases was stated in People v Hubbard, 19 Mich. App. 407, 413; 172 NW2d 831 (1969), aff'd 387 Mich. 294 (1972):
"In a nonjury case we are required to review the entire record to determine whether the trial judge clearly erred."
Because it is unclear whether Hampton applies to nonjury cases, this Court will analyze the facts under both the Hubbard and Hampton standards of review.
Since defendant was convicted as an aider and abettor, the evidence must be sufficient to show either that defendant himself possessed specific intent or that he knew his coparticipant possessed specific intent to kill. As in Poplar, supra, there is no evidence that defendant himself possessed specific intent to kill. The two armed men entered the restaurant through different doors, and the defendant did not go to the back of the restaurant until after he heard the shot. The issue, then, is whether defendant's knowledge of his coparticipant's specific intent can be inferred circumstantially.
In the present case, the trial court made sufficient findings of fact. Additionally, the evidence was sufficient to support the trial court's findings that defendant's coparticipant possessed the specific intent to kill and that it could be inferred circumstantially that defendant was aware that his coparticipant possessed that intent. It is a reasonable inference that when two masked men, each brandishing a gun, enter a restaurant and announce a holdup each can expect that one or *192 both of the guns may be used during the robbery. Thus, sufficient evidence was introduced to justify the trial court's conclusion of guilt beyond a reasonable doubt under Hampton, supra. Additionally, viewing the entire evidence does not convince this Court that a mistake has been committed under the clearly erroneous standard of Hubbard, supra.
The defendant further claims on appeal that he was denied his right to effective assistance of counsel in that his attorney did not request a Walker hearing, People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965), in regard to defendant's statements to police.
Defendant does not claim any brutality, promises, or delay in the proceedings prior to the statement. Nor does he deny making the statement. Neither has he filed for a motion for a new trial based on ineffective assistance of counsel. People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973). We believe that this tactic was pure trial strategy to support his contention of lack of intent. People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976). As stated in People v Parisi, 270 Mich. 429, 434; 259 N.W. 127 (1935):
"Error is claimed because of the prosecutor's refusal to exhibit to defendant's attorney certain written statements alleged to have been made by defendant * * *. Defendant's own statement was of no conceivable value to him. He must have known what was contained therein."
Defendant knew that he had denied the shooting, and he relied on that fact as his trial strategy.
We have examined the other grounds for appeal and find them to be without merit.
In the case at bar, it was reasonable to infer *193 from the circumstances that the intentional discharging of one of the two handguns carried into the restaurant, resulting in a path of internal destruction through the back and breast of a female employee, was fairly within the scope of the common unlawful enterprise. Our holding is in accord with Fields, supra, People v Wright, 44 Mich. App. 111; 205 NW2d 62 (1972), and People v Palmer, 392 Mich. 370, 378-379; 220 NW2d 393 (1974).
Affirmed.