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Docket Number

Docket No. 103461.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people. Gerald M. Lorence, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

People v Armstrong, Docket No. 103461 (Mich. Ct. App. Feb. 22, 1989)

Factual and Procedural Background

After a bench trial in the Detroit Recorder's Court, defendant was found guilty of armed robbery (MCL 750.529; MSA 28.797) and sentenced to ten to twenty-five years' imprisonment. The underlying events occurred on November 8, 1986, when defendant and an accomplice approached Robert Muhammad under the pretext of examining a car battery. An accomplice pointed a sawed-off shotgun at Muhammad, took his wallet and placed it on a porch. Defendant told Muhammad, "Man, remember our deal, fifty-fifty," took the wallet from the porch and began to back toward the street. A struggle over the shotgun ensued; defendant kicked Muhammad, struck him with a piece of lumber, and later struck him in the chest with a tree branch before grabbing the shotgun and fleeing. Defendant testified differently at trial, claiming he merely attempted to sell a battery, that an unknown man attempted the robbery, and that any assault by him was in self-defense. The trial judge found defendant's testimony not worthy of belief. Defendant appealed, raising (1) insufficiency of the trial court's factual findings, (2) asserted hearsay/admission of certain statements at trial, and (3) ineffective assistance of counsel for failing to object to that testimony.

Legal Issues Presented

Whether the trial court's findings of fact in a bench trial were sufficiently specific under MCR 2.517(A) to support the armed robbery conviction.
Whether statements by defendant admitted through the victim's testimony were inadmissible hearsay.
Whether defendant was denied effective assistance of counsel because counsel did not object to the complained-of testimony on hearsay grounds.

Arguments of the Parties

Appellant's Arguments

The trial court failed to make sufficient findings of fact to support the armed robbery conviction, specifically by not finding that defendant actually took Muhammad's wallet.
Muhammad was allowed to testify as to statements made by defendant during the robbery that were inadmissible hearsay and should have been excluded.
Defendant was denied effective assistance of counsel because trial counsel did not object to the challenged testimony on hearsay grounds.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Jackson, 390 Mich. 621, 627; 212 N.W.2d 918 (1973)	Purpose of requiring specific factual findings in nonjury cases (allows appellate review of law applied by factfinder).	Used to explain why factual findings are required and that generally remand is the remedy when findings are insufficient.
People v Daniels, 163 Mich. App. 703, 709; 415 N.W.2d 282 (1987), lv den 430 Mich. 854 (1988)	Discussed conflicting standards for the specificity required in trial court findings.	Cited as part of discussion on split among panels regarding the degree of specificity required under MCR 2.517(A).
People v Davis, 126 Mich. App. 66; 337 N.W.2d 315 (1983)	Held specific findings of fact on each element of the crime are necessary to satisfy rule.	Identified as the earlier, now-repudiated standard; the panel concluded Davis lacked precedential value.
People v Taylor, 133 Mich. App. 762; 350 N.W.2d 318 (1984), reversed and remanded on other grounds 422 Mich. 554, 568; 375 N.W.2d 1 (1985)	Holds findings are sufficient if it appears the court was aware of the issues and correctly applied the law.	Adopted by the panel as the controlling standard for sufficiency of findings.
People v Eggleston, 149 Mich. App. 665; 386 N.W.2d 637 (1986), lv den 425 Mich. 862 (1986)	Endorsed the Taylor standard (less specificity required).	Supported the panel's conclusion that Taylor's approach is correct and that Davis is no longer viable.
People v Evans, 173 Mich. App. 631; 434 N.W.2d 452 (1988)	Recognized the apparent conflict among panels on the specificity standard.	Listed as among cases recognizing the split; part of the panel's review of precedent.
People v Oliver, 170 Mich. App. 38, 44; 427 N.W.2d 898 (1988), lv den 431 Mich. 898 (1988)	Addressed the conflict and endorsed the Taylor standard.	Cited as authority favoring the Taylor standard adopted by this panel.
People v Porter, 169 Mich. App. 190, 193; 425 N.W.2d 514 (1988), lv den 431 Mich. 883 (1988)	Also recognized the conflict and endorsed the Taylor approach.	Used to show post-Davis panels favoring Taylor's standard.
People v Fair, 165 Mich. App. 294, 297-298; 418 N.W.2d 438 (1987)	Applied the standard that findings need only show awareness of issues and correct application of law.	Included among post-Davis cases supporting the Taylor standard.
People v Melvin Davis, 146 Mich. App. 537, 550-551; 381 N.W.2d 759 (1985)	Discussed factual findings sufficiency under the Taylor approach.	Cited as additional support for adopting the Taylor standard.
People v Robinson, 145 Mich. App. 562, 565-566; 378 N.W.2d 551 (1985)	Applied the less stringent standard for findings sufficiency.	Used to bolster the panel's view that Taylor governs.
People v Furman, 158 Mich. App. 302, 330; 404 N.W.2d 246 (1987), lv den 429 Mich. 851 (1987)	Under MRE 103(a)(1), failure to object at trial precludes appellate review absent manifest injustice.	Used to hold that defendant's hearsay complaint was forfeited by lack of objection unless manifest injustice is shown.
People v Godboldo, 158 Mich. App. 603, 607; 405 N.W.2d 114 (1986)	Statements made by a defendant and used against him are not hearsay (MRE 801(d)(2)(A)).	Applied to conclude the complained-of statements were admissions and therefore not hearsay.
People v Lyles, 148 Mich. App. 583, 596; 385 N.W.2d 676 (1986)	Counsel is not ineffective for failing to make a futile objection.	Applied to reject the ineffective-assistance claim because the objection would have been futile.

Court's Reasoning and Analysis

The panel affirmed the conviction. It first addressed the sufficiency of the trial court's factual findings under MCR 2.517(A), quoting the rule and explaining its purpose (to allow appellate review of the law applied by the factfinder) as stated in People v Jackson. The court acknowledged a split among panels about the degree of specificity required (citing People v Daniels and the Davis/Taylor disagreement). Noting that members of the Davis panel subsequently repudiated Davis and that multiple later panels had adopted the Taylor standard, the panel concluded that Davis no longer has precedential value and that the Taylor standard controls. Under that standard—findings are sufficient if it appears the trial court was aware of the issues and correctly applied the law—the panel found the trial judge's findings adequate because the judge clearly believed defendant actively participated in and facilitated the crime. The court further explained that, having found active participation, the judge was not required to make an explicit finding that defendant personally took the wallet, citing MCL 767.39; MSA 28.979.

On the hearsay claim, the court observed defense counsel did not object at trial; consequently appellate review is barred absent manifest injustice under MRE 103(a)(1) and People v Furman. Independently, the court held the statements were not hearsay because they were admissions by a party-opponent under MRE 801(d)(2)(A), citing People v Godboldo. Because the statements were admissible as admissions, the court rejected the claim that counsel was ineffective for failing to object; counsel is not ineffective for failing to make a futile objection, citing People v Lyles.

Holding and Implications

Holding: The conviction and sentence were affirmed.

Implications:

The panel adopted the Taylor standard for sufficiency of findings in bench trials: factual findings are sufficient if it appears the trial court was aware of the issues and correctly applied the law. The opinion states that People v Davis is without precedential value in light of subsequent repudiation by panels and related developments.
The court confirmed that failure to object at trial precludes appellate review of evidentiary rulings absent manifest injustice (MRE 103(a)(1)), and reiterated that statements by a defendant used against him are admissions (MRE 801(d)(2)(A)) and therefore not hearsay.
Direct effect: defendant's armed robbery conviction and ten- to twenty-five-year sentence remain in force. The opinion did not impose a new rule beyond endorsing the Taylor standard and declaring Davis nonprecedential for purposes described in the opinion.

Judge Cynar concurred in the result only.

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PEOPLE v ARMSTRONG

PER CURIAM.

At the conclusion of a bench trial in the Detroit Recorder's Court, defendant was found guilty of armed robbery, MCL 750.529; MSA 28.797, and was subsequently sentenced to ten to twenty-five years imprisonment. We affirm.

On November 8, 1986, defendant and an accomplice robbed Robert Muhammad of his wallet by gunpoint. Defendant lured Muhammad to the back of a house under the pretext of examining a car battery. When Muhammad attempted to leave, the accomplice appeared and pointed a sawed-off shotgun at him. The accomplice took Muhammad's wallet and placed it on the porch. During this time, defendant said, "Man, remember our deal, fifty-fifty. I get fifty percent of what you get." Defendant took the wallet off the porch and began backing up toward the street.

When the accomplice prodded Muhammad with the shotgun, he grabbed it and a struggle ensued. While they were struggling, defendant kicked Muhammad in the jaw and then struck him in the head with a piece of 2" X 4" lumber. At this point, the accomplice let go of the gun, which then discharged and folded up, and he fled the scene. Defendant initially followed the accomplice but returned and, after striking Muhammad in the chest with a tree branch, grabbed the shotgun and ran away.

Defendant testified at trial and gave a substantially different version of what had happened. He admitted that he tried to sell Muhammad a car battery but stated that Muhammad was not interested. At this same time, though, an unknown man appeared carrying the sawed-off shotgun and attempted to rob Muhammad. Defendant denied assaulting Muhammad or saying anything about receiving fifty percent of the money. Defendant claimed he simply took his battery and left. After Muhammad managed to grab the shotgun away from the robber, Muhammad approached defendant and asked him why he did not help. Apparently, because Muhammad was pointing the gun at defendant, another struggle began. Acting in self-defense, defendant hit Muhammad in the head with a brick and then left.

In pronouncing defendant guilty of armed robbery, the trial judge stated that she found defendant's testimony not worthy of belief.

As his first issue on appeal, defendant claims the trial court failed to make sufficient findings of fact to support the armed robbery conviction. Specifically, he claims there was no finding that he actually took Muhammad's wallet. We hold that the trial court's factual findings were sufficient.

MCR 2.517(A) provides in pertinent part:

(1) In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment.

(2) Brief, definite, and pertinent findings and conclusions on the contested matters are sufficient, without overelaboration of detail or particularization of facts.

The purpose of requiring specific factual findings in a nonjury case is similar to the function served by the trial court's charge in a jury case. It allows the appellate court to review the law applied by the factfinder. People v Jackson, 390 Mich. 621, 627; 212 N.W.2d 918 (1973). Generally, where the factual findings are insufficient, the appropriate remedy is to remand the cause for additional fact-finding. Id., p 628. But, a remand is unnecessary "where it is manifest that [the judge] was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result." Id., p 627, n 3.

In People v Daniels, 163 Mich. App. 703, 709; 415 N.W.2d 282 (1987), lv den 430 Mich. 854 (1988), a panel of this Court discussed the apparent conflicting standards for reviewing the sufficiency of a trial judge's factual findings:

Currently, there is a split among the panels of this Court concerning the degree of specificity necessary to satisfy the above court rule. In People v Davis, 126 Mich. App. 66; 337 N.W.2d 315 (1983), this Court held that the specific findings of fact on each element of the crime are necessary to satisfy the court rule. Another panel in People v Taylor, 133 Mich. App. 762; 350 N.W.2d 318 (1984), reversed and remanded on other grounds 422 Mich. 554, 568; 375 N.W.2d 1 (1985), stated that so long as it appears from the court's findings of fact that the trial court was aware of the issues in the case and correctly applied the law, the requirements of the court rule had been met. A more recent opinion has endorsed the latter view. People v Eggleston, 149 Mich. App. 665; 386 N.W.2d 637 (1986), lv den 425 Mich. 862 (1986). We note that two members of the Davis panel have since repudiated the Davis rule. See Eggleston at 672, n 1; Taylor, supra at 766, n 1.

The apparent conflict in standards was recognized most recently in People v Evans, 173 Mich. App. 631; 434 N.W.2d 452 (1988), People v Oliver, 170 Mich. App. 38, 44; 427 N.W.2d 898 (1988), lv den 431 Mich. 898 (1988), and People v Porter, 169 Mich. App. 190, 193; 425 N.W.2d 514 (1988), lv den 431 Mich. 883 (1988).

Because, as noted supra, two members of the Davis panel no longer subscribe to its holding, we believe the conflict has dissipated. Although we are unaware of any precedent standing for the proposition that a case is overruled when a majority of the panel repudiates its holding in subsequent cases, this is the logical result. The viability of a case should cease when the forces which gave it lifeblood subsequently advocate its demise. Unless and until a future case from this Court or our Supreme Court adopts the Davis holding, the trial bench and criminal law practitioners should be on notice that Davis is without precedential value.

We agree with the long line of post- Davis cases which have adopted the Taylor standard, i.e., factual findings are sufficient so long as it appears that the trial court was aware of the issues in the case and correctly applied the law. Evans, supra; Oliver, supra, p 46; Porter, supra, p 194; People v Fair, 165 Mich. App. 294, 297-298; 418 N.W.2d 438 (1987); Eggleston, supra, p 672; People v Melvin Davis, 146 Mich. App. 537, 550-551; 381 N.W.2d 759 (1985); People v Robinson, 145 Mich. App. 562, 565-566; 378 N.W.2d 551 (1985). Under that standard, the trial judge's findings of fact in the instant case were sufficient. It is clear from the judge's findings that she believed defendant actively participated in and facilitated the commission of the crime. Having made that finding, the judge was not required to also find that it was defendant who actually took Muhammad's wallet. MCL 767.39; MSA 28.979. The judge was obviously aware of the issues in dispute and correctly applied the law in resolving them.

In light of the unanimous rejection of the Davis holding by subsequent panels of this Court and the Supreme Court's consistent declination to address the issue, Judge MAHER — as the last holdout of the Davis panel — heretofore accepts the standard espoused in Taylor as controlling. As to Davis then, the coffin is sealed and the last nail has been driven.

Defendant next argues that his conviction must be reversed because Muhammad was allowed to testify at trial as to certain statements made by defendant during the robbery. Defendant claims those statements were inadmissible hearsay and should have been excluded from evidence. Defendant is mistaken. Because defense counsel did not object to the now-complained-of testimony, appellate review is precluded absent manifest injustice. MRE 103(a)(1); People v Furman, 158 Mich. App. 302, 330; 404 N.W.2d 246 (1987), lv den 429 Mich. 851 (1987). Regardless, though, the statements, being made by defendant and used against him at trial, were not inadmissible hearsay. MRE 801(d)(2)(A); People v Godboldo, 158 Mich. App. 603, 607; 405 N.W.2d 114 (1986).

In a related argument, defendant claims he was denied the effective assistance of counsel because his trial attorney did not object, on hearsay grounds, to the statement complained of. Since the statement was not hearsay, this argument is without merit. Counsel is not ineffective for failing to make a futile objection. People v Lyles, 148 Mich. App. 583, 596; 385 N.W.2d 676 (1986).

Affirmed.

CYNAR, J., concurs in the result only.

PEOPLE v. ARMSTRONG