Michigan Court of Appeals Case Summaries: October 6, 2003.

Byline: Michigan Lawyers Weekly Staff

Affirmed Convictions

Criminal Sexual Conduct, First Degree. Prearrest Silence. "[T]he prosecution sought to introduce evidence that defendant had been avoiding police contact. After the victim made her allegations, the police scheduled an interview with defendant. However, defendant failed to attend the interview, even though he knew of the allegations. Subsequent efforts by the police to contact defendant were unsuccessful. Also, when police arrived at defendant's sister's house to arrest him, the person who answered the door stated that defendant was not there. After searching the house and calling out defendant's name, defendant did respond and was arrested in a back room of the house. On these facts, we find the testimony to be probative of defendant's state of mind. Further, defendant had the opportunity, and seized it, to explain his version of events. In addition, the jury received a limiting instruction that it could either consider defendant's silence as indicative of a guilty mind, or attribute purely innocent reasons for his silence. Therefore, we hold that the trial court did not abuse its discretion in admitting the testimony as substantive evidence of defendant's consciousness of guilt."

People v. Adams. (Lawyers Weekly No. 09-50066) (3 pages) (Michigan Court of Appeals) (unpublished per curiam).

Criminal Sexual Conduct, Fourth Degree. Evidence. Following defendant's bench trial conviction, the court ruled that audiotapes and transcripts had been improperly admitted. However, a new trial is not warranted because the court stated that it did "not rely on the audiotapes and transcriptions in finding defendant guilty and its findings of fact support this. Therefore, we find the admission was not outcome determinative."

People v. Frierson. (Lawyers Weekly No. 09-50028) (3 pages) (Michigan Court of Appeals) (unpublished per curiam).

Delivery Of Less Than 50 Grams Of Cocaine; Delivery Of More Than 50 But Less Than 650 Grams Of Cocaine; Habitual Offender, Fourth Offense. Prearrest Delay. "The prearrest delay in this case, approximately twenty months, is substantial. However, defendant has failed to come forward with a detailed claim of loss of evidence or with any allegation that the delay was occasioned by the prosecution's attempt to obtain a tactical advantage. Defendant merely asserts, without explication, that the delay resulted in the loss of exculpatory evidence, testimony and potential witnesses. This allegation does not establish that the delay meaningfully impaired defendant's ability to defend against the charges against him and is insufficient to shift the burden of proof from defendant to the prosecution. Where defendant fails to identify the witnesses or the substance of the information allegedly lost to him, and where defendant offers no evidence showing that the delay was intended to secure a tactical advantage on the part of the prosecution, the trial court does not err in denying defendant's motion to dismiss."

People v. Cousins. (Lawyers Weekly No. 09-50060) (8 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, First Degree. New Trial Properly Denied. "Defendant ... argues that the trial court abused its discretion when it denied defendant's motion for a new trial that was based on newly discovered evidence that another individual, Nutter, confessed to murdering the victim. ... In light of the strong evidence against defendant in this case and the lack of credibility of the new witnesses, we find that the trial court correctly found that the newly discovered evidence was not such as would make a different result probable on retrial."

People v. Baldwin. (Lawyers Weekly No. 09-50017) (3 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, First Degree. Prior Bad Acts. Defendant argues that the trial court erred by "admitting testimony about defendant's involvement in a prior rape, which occurred in 1961, approximately twelve years before the offense leading to the instant conviction. According to defendant, the evidence of the prior crime was improperly admitted under MRE 404(b) because it was too dissimilar compared to the charged offenses and any probative value was outweighed by its unfairly prejudicial impact." We disagree. The evidence was properly introduced to show a "plan, scheme, or system to do the acts."

People v. Wingeart. (Lawyers Weekly No. 09-50039) (11 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, First Degree; Assault With Intent To Do Great Bodily Harm Less Than Murder. Defendant argues that a rational finder of fact could not conclude from the evidence that defendant's actions were premeditated and deliberate. We disagree. "Defendant alleges that he did not have the ability to properly reflect on his actions after announcing his intent to kill Ms. Goddard by saying 'I'm going to prison now. You're dead bitch[,]' and then following her into the house, stabbing her forty-four times with various objects, and striking her on the head with a cement statute. We find that such overwhelming evidence is more than sufficient to conclude that there is no merit to defendant's claim."

People v. Abbott. (Lawyers Weekly No. 09-50054) (6 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, Second Degree. Accomplice Instruction. "Defendant contends that the trial court erred by failing to sua sponte provide a cautionary instruction regarding accomplice testimony. Defendant concedes, however, that he did not object to the trial court's instructions below. Accordingly, this issue is forfeited, and defendant is not entitled to relief unless he can show a plain error that affected his substantial rights." Further, it is doubtful "that either Michael Martin or Eugene Lawrence was truly an accomplice. Although the witnesses were questioned by the police, there is no indication that they were potential suspects who testified out of self-interest. Further, to whatever extent Martin accompanied defendant on the day of the murders, even though he may not have done enough to discourage defendant from arming himself or robbing someone, the evidence did not suggest that Martin was at all willing to actually help defendant. Similarly, although Lawrence provided defendant a gun, Lawrence's testimony indicated that defendant told him he needed the gun for self-defense. There is absolutely no indication in the record that Lawrence knew what defendant planned to do with the gun. Because CJI2d 5.5(2) instructs the jury that an accomplice is someone 'who knowingly and willfully helps or cooperates with someone else in committing a crime,' it is doubtful that either Martin or Lawrence actually qualified as accomplices. Accordingly, we are not persuaded that the trial court erred in failing to provide the accomplice instructions. Consequently, in the absence of plain error, defendant may not avoid forfeiture of this issue."

People v. Young. (Lawyers Weekly No. 09-50065) (8 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, Second Degree. Search And Seizure. "[W]hen police officers enter a private residence pursuant to exigent circumstances and observe evidence in plain view but do not seize the evidence, a subsequent warrantless entry shortly after the first entry to process evidence that could have legally been seized by the officer who first viewed the evidence does not violate the Fourth Amendment."

People v. Martin. (Lawyers Weekly No. 09-50068) (6 pages) (Michigan Court of Appeals) (unpublished per curiam).

Carjacking. Sufficient Evidence. "[T]here was sufficient evidence to enable the jury to find beyond a reasonable doubt that Newman's van was taken in Newman's presence, notwithstanding that Newman was disabled and in bed when defendant accosted him. Newman was the owner of the van, which had been modified to allow him to drive it. At the time defendant threatened Newman with a knife, Newman had possession of the keys and, therefore, was in control of the vehicle. ... The jury could properly conclude that defendant obtained control and possession of the van in Newman's presence by threatening Newman with a knife and causing him to surrender the keys."

People v. Redwood. (Lawyers Weekly No. 09-50022) (7 pages) (Michigan Court of Appeals) (unpublished per curiam).

Murder, Second Degree. Sufficient Evidence. "[A]n eyewitness testified that defendant, pursuant to discussions with Banks questioning his paternity of what he had believed was his young son by her, retrieved a gun from storage, and pointed it at Banks. As defendant points out, that witness, his sister, described the shooting in terms suggesting that it was wholly unintentional, reporting that defendant was never angry in the event, and that the discussion about parentage was not serious. Those facets of the witness' testimony were for the jury to credit or not as it saw fit. ... Further, defendant himself admitted to the police that he had loaded the gun, cocked it, and 'played' with it, including by way of pointing it at Banks. Although defendant first said that he had dropped the gun, which caused it to discharge, he later admitted that he had not dropped it, but agreed with the investigator's suggestion that, while he was pointing the cocked gun at Banks, it went off while he was trying to 'uncock' it. The jury apparently concluded that defendant did not act with premeditation and deliberation, but was free to conclude that defendant brandished his loaded gun in a …