People of Michigan v. Tjuan Aquis McCloud ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 12, 2017
Plaintiff-Appellee,
v No. 333927
Wayne Circuit Court
ORLANDO BROWN, LC No. 15-006491-04-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 333931
Wayne Circuit Court
LAVELLE ANTONIO FIELDS, LC No. 15-006491-02-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 333932
Wayne Circuit Court
TJUAN AQUIS MCCLOUD, LC No. 15-006491-03-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 333933
Wayne Circuit Court
ANTONIO DONTEZ WEBSTER, LC No. 15-006491-01-FC
Defendant-Appellant.
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Before: TALBOT, C.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendants Orlando Brown, Lavelle Antonio Fields, Tjuan Aquis McCloud, and Antonio
Dontez Webster were convicted by a jury of felony murder,1 second-degree murder,2 and armed
robbery. 3 Defendants’ second-degree murder convictions were vacated, and each defendant was
sentenced to life in prison without parole for his felony-murder conviction and a term of
imprisonment of varying length for his armed-robbery conviction. Defendants appeal as of
right.4 We affirm, but remand this matter to the trial court in Docket No. 333927 for the
ministerial task of correcting Brown’s sentencing information report (SIR).
I. BACKGROUND
This case arises from the April 19, 2015 robbery and murder of Henry Perry. The bulk of
the narrative concerning the events surrounding Perry’s death was provided by a fifth
accomplice, Ashley Thompson, who was dating Fields in April 2015 and maintained a platonic
relationship with Perry. At trial, Thompson testified that Fields and Webster devised a plan to
rob Perry after Fields learned of her secret friendship with Perry on April 18, 2015. On April 19,
Fields and Webster included McCloud in discussions concerning the planned robbery and Fields
indicated that Perry “had to go,” which Thompson construed as meaning Perry had to die.
Around 3:30 p.m. on April 19, Thompson lured Perry to the intersection of Longacre and
Wadsworth in Detroit by turning the engine of her Jeep off, activating her hazard lights, and
calling Perry to ask for help with her malfunctioning vehicle. While Perry was examining the
Jeep’s engine compartment, Webster and McCloud arrived in a burgundy Impala driven by
Brown. According to Thompson, Webster pointed a gun at Perry and told him not to move. As
she was driving away from the standoff, she heard two gunshots and observed that Perry was not
standing anymore. In her rearview mirror, she saw McCloud take Perry’s shorts off before
getting inside Perry’s truck. A few minutes later, Fields called and directed her to pick McCloud
up at an intersection approximately two streets from the scene. Thompson complied and, after
locating McCloud, observed him removing a cell phone and wallet from Perry’s shorts.
Thompson returned to her house on Meyers Street with McCloud, where she saw Brown
and Fields in the Impala, parked in her driveway. Once inside the house, Fields, Brown, and
McCloud split Perry’s money, Fields took Perry’s cell phone, and they agreed to dispose of the
1
MCL 750.316(1)(b).
2
MCL 750.317.
3
MCL 750.529.
4
Defendants’ appeals were consolidated to advance efficient administration of the appellate
process. People v Brown, unpublished order of the Court of Appeals, entered July 27, 2016
(Docket Nos. 333927, 333931, 333932, 333933).
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Impala. About 30 minutes later, they left the house—Brown and McCloud in the Impala and
Thompson and Fields in her Jeep. Fields directed her to the eastside of Detroit, where Brown,
McCloud, and Webster were waiting. Shortly after abandoning the Impala, Thompson and
defendants were pulled over due to improper license plates on Thompson’s Jeep. McCloud was
arrested on an outstanding warrant, but Thompson, Fields, Brown, and Webster were permitted
to leave without incident. When McCloud was searched at the Detroit Detention Center, Perry’s
identification and credit card were discovered in his pant leg.
In the early morning hours of April 20, 2015, Thompson, Fields, and Webster drove to
the house Webster shared with his girlfriend, Dionne Williams-Mitchell. Williams-Mitchell
testified that Thompson, Fields, and Webster discussed the April 19 robbery and murder.
Williams-Mitchell also testified that Brown drove a red or burgundy Impala for a period of time
in April 2015, which Webster had stolen from a woman he met at the liquor store.
The prosecution also presented cell phone records tending to implicate defendants in
Perry’s death. Testifying as an expert in forensic analysis of cell phone call detail records, Stan
Brue presented a chart depicting the phone calls between the four defendants and Thompson
between 3:40 p.m. and 4:00 p.m., i.e., the period shortly before and after the 3:52 p.m. 911 call
reporting the shooting, along with a map depicting the cellular sites and sectors utilized for most
of the calls. According to Brue, the sites and sectors used in the periods before and after the
shooting were consistent with use at or near the crime scene. Detective David Boike, an expert
in computer and cell phone forensics, extracted potentially incriminating data from cell phones
belonging to Fields, Webster, and McCloud. Between April 19 and April 22, 2015, Webster’s
cell phone contained internet search queries regarding Detroit crimes and how to remove OnStar
from a 2007 Impala. There were also a number of visits to local news websites with headings
including, “a man shot and killed on Detroit’s west side,” “fatal shooting,” and “police search for
trio suspect after fatal shooting and robbery.” Fields’s cell phone reflected a similar internet
search history concerning recent shootings in Detroit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Brown and Fields argue that they were denied the effective assistance of counsel when
their respective trial attorneys failed to request separate trials or juries. To preserve a claim of
ineffective assistance of counsel, a defendant must move for a new trial or seek a Ginther5
hearing in the trial court.6 Neither Brown nor Fields moved for a new trial or Ginther hearing
below, and Brown’s motion to remand for that purpose was denied by this Court.7 As such, this
issue is unpreserved. Ineffective assistance of counsel claims present a mixed question of fact
and constitutional law.8 The lower court’s findings of fact are generally reviewed for clear error,
5
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
6
People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94 (2002).
7
People v Brown, unpublished order of the Court of Appeals, entered May 2, 2017 (Docket No.
333927).
8
People v Jordan, 275 Mich. App. 659, 667; 739 NW2d 706 (2007).
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while its rulings on questions of constitutional law are reviewed de novo.9 Because this issue is
unpreserved, our review is limited to errors apparent from the record.10
To establish a claim of ineffective assistance of counsel, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.”11 “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.”12 This Court presumes that defense counsel rendered effective assistance and
exercised reasonable professional judgment in all significant decisions.13 Accordingly, the
defendant must “overcome the strong presumption that counsel’s performance was born from a
sound trial strategy.”14
Criminal defendants charged with the same offense do not have an absolute right to
separate trials.15 To the contrary, “[a] strong policy favors joint trials in the interest of justice,
judicial economy, and administration.”16 However, MCR 6.121(C) provides that “[o]n a
defendant’s motion, the court must sever the trial of codefendants on related offenses on a
showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”
When a defendant challenges a joint trial on the basis of antagonistic defenses,
[i]nconsistency of defenses is not enough to mandate severance; rather, the
defenses must be “mutually exclusive” or “irreconcilable.” Moreover,
“[i]ncidental spillover prejudice, which is almost inevitable in a multi-defendant
trial, does not suffice.” The “tension between defenses must be so great that a
jury would have to believe one defendant at the expense of the other.”[17]
Unless there is a “significant indication on appeal that the requisite prejudice in fact occurred at
trial,” a defendant’s failure to satisfy the requirements of MCR 6.121(C) precludes reversal of a
9
Id.
10
Id.
11
People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012).
12
People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001), quoting Strickland v
Washington, 466 U.S. 668, 694; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984).
13
People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012).
14
Trakhtenberg, 493 Mich. at 52.
15
People v Bosca, 310 Mich. App. 1, 44; 871 NW2d 307 (2015).
16
Id., quoting People v Harris, 201 Mich. App. 147, 152; 505 NW2d 889 (1993).
17
People v Hana, 447 Mich. 325, 349; 524 NW2d 682 (1994) (citations omitted) (second
alteration in original).
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joinder decision.18 Additionally, because use of separate juries is a partial form of severance,
issues involving separate juries are evaluated under the same standard.19
In Docket No. 333927, Brown contends that his defense was mutually exclusive because
there were four defendants on trial for crimes committed by three people. We disagree. Brown’s
position lacks merit because it ignores the fact that he and his codefendants were prosecuted
under an aiding and abetting theory. “Fingerpointing by the defendants when such a prosecution
theory is pursued does not create mutually exclusive antagonistic defenses.”20 Brown’s odd-
man-out theory is particularly unpersuasive in light of Thompson’s testimony identifying Brown
as the driver of the getaway car and evidence that the fourth defendant, Fields, planned and
coordinated the crimes, even if he was not present at the time the plan was executed. Thus, it
was not objectively unreasonable for Brown’s attorney to refrain from seeking a separate trial or
jury when Brown was not entitled to severance.
In Docket No. 333931, Fields argues that he was prejudiced by the joint trial because
Webster, McCloud, and Brown repeatedly targeted him as the person responsible for the robbery
and murder. According to Fields, there was no strategic reason for his attorney to place him in
the position of having to defend against allegations from the prosecution and his codefendants.
We disagree. It is to be expected that the attorneys representing codefendants in a joint trial will
attempt to present the evidence in the light most favorable to his or her respective client.21 But,
again, when multiple defendants are prosecuted under an aiding and abetting theory, attempts to
shift the blame to codefendants do not result in mutually exclusive or antagonistic defenses that
require severance.22 Accordingly, Fields cannot demonstrate that his attorney was ineffective for
failing to request separate trials or juries.
III. JURY INSTRUCTIONS
In Docket Nos. 333927, 333931, and 333933, Brown, Fields, and Webster, argue that the
trial court erred by instructing the jury regarding flight as evidence of consciousness of guilt.
“Claims of instructional error are generally reviewed de novo by this Court, but the trial court’s
determination that a jury instruction is applicable to the facts of the case is reviewed for an abuse
of discretion.”23 “A defendant has the right to have a properly instructed jury consider the
evidence against him or her, and it is the trial court’s role ‘to clearly present the case to the jury
18
Id. at 346-347.
19
Id. at 351.
20
Id. at 360-361.
21
Id. at 348.
22
Id. at 360-361.
23
People v Henderson, 306 Mich. App. 1, 3; 854 NW2d 234 (2014), quoting People v Dobek, 274
Mich. App. 58, 82; 732 NW2d 546 (2007).
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and to instruct it on the applicable law.’ ”24 Before releasing the jury to deliberate, the trial
court’s final instructions to the jury including the following, modeled after M Crim JI 4.4:
There has been some evidence in this case that the defendants ran away
after the alleged crimes. This evidence does not prove guilt. A person may run or
hide for innocent reasons such as panic, mistake, or fear. However, a person may
also run or hide because of a consciousness of guilt. When you deliberate you
must decide whether the evidence is true, and if true whether it shows that each
defendant had a guilty state of mind.
On appeal, Brown, Fields, and Webster do not dispute the validity of the legal principal
underlying the so-called flight instruction. Rather, they argue that the trial court erred by
providing the flight instruction to the jury because it was unsupported by the evidence, which
showed that the perpetrators left the scene after completing the shooting and robbery, but did
nothing to intentionally avoid detection.
Defendants correctly observe that their interactions with the police in connection with
this case—during the April 19 traffic stop and at the time of their respective arrests—were
generally described as cooperative and that the prosecution did not present evidence to suggest
that they fled the scene as a result of active pursuit. However, it does not follow, as defendants
argue, that the jury could not infer that their departure evinced consciousness of guilt. In
addition to Thompson’s recollection of the April 19 robbery and murder, the prosecution also
presented testimony from Floria Thomas, an unrelated third-party who witnessed the incident.
According to Thomas, three African-American men were involved in the shooting and, after the
perpetrators shot Perry and removed his shorts, two of the perpetrators sped away from the scene
in the Impala, while the third perpetrator fled the scene on foot. Thompson likewise indicated
that McCloud was left behind and that she had to return to the area to pick him up. The jury
could infer from the hasty retreat of those defendants who departed in the Impala, and their
refusal to return when it became apparent that McCloud was left without a quick avenue of
escape, that defendants left the scene in order to elude detection, and not simply because they
had completed their mission. Thus, the trial court did not abuse its discretion by properly
instructing the jury that it should determine whether the circumstances of defendants’ departure
were indicative of a guilty state of mind. 25
Having addressed those claims raised by more than one defendant, we will now turn to
the balance of the issues raised by each defendant.26
24
Henderson, 306 Mich. App. at 4, quoting Dobek, 274 Mich. App. at 82.
25
People v Unger, 278 Mich. App. 210, 226; 749 NW2d 272 (2008) (“[I]t is always for the jury to
determine whether evidence of flight occurred under such circumstances as to indicate guilt.”)
26
Fields did not raise any additional issues in Docket No. 333931.
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IV. DOCKET NO. 333927 – ORLANDO BROWN
A. GREAT WEIGHT OF THE EVIDENCE
To preserve a claim that a jury’s verdict was against the great weight of the evidence, the
party claiming such error must move for a new trial on that ground.27 Brown did not move for a
new trial on this basis below and his motion to remand for that purpose was denied by this
Court.28 As such, this issue is unpreserved, and our review is limited to plain error affecting
Brown’s substantial rights.29 “The test to determine whether a verdict is against the great weight
of the evidence is whether the evidence preponderates so heavily against the verdict that it would
be a miscarriage of justice to allow the verdict to stand.”30 “Conflicting testimony and questions
of witness credibility are generally insufficient grounds for granting a new trial.”31 The jury’s
verdict should not be disturbed “[u]nless it can be said that directly contradictory testimony was
so far impeached that it ‘was deprived of all probative value or that the jury could not believe it,’
or contradicted indisputable physical facts or defied physical realities . . . .”32
In arguing that the jury’s verdict was against the great weight of the evidence, Brown first
takes issue with Thompsons’s testimony concerning Brown’s role in the incident, arguing that as
Fields’s girlfriend, she had motive to identify Brown as the driver instead of Fields.
Additionally, he maintains that Thompson’s identification was directly contradicted by Thomas’s
description of the driver. Brown’s arguments lack merit because neither issues of witness
credibility nor conflicting evidence will generally suffice to demonstrate that a defendant’s
conviction was contrary to the great weight of the evidence.33 The jury was well aware that
Thompson’s relationship with Fields might sway her testimony and still accepted her assertion
regarding Brown’s involvement as true. Admittedly, Thomas described the driver as having a
stocky build and dreadlocks and agreed at trial that Fields was stocky and had dreadlocks.
However, Brown’s physical appearance in April 2015 is not apparent from the record provided
to this Court34 and, thus, does not support his claim of error.
27
People v Musser, 259 Mich. App. 215, 218; 673 NW2d 800 (2004).
28
People v Brown, unpublished order of the Court of Appeals, entered May 2, 2017 (Docket No.
333927).
29
Musser, 259 Mich. App. at 218.
30
Id. at 218-219.
31
Unger, 278 Mich. App. at 232.
32
Musser, 259 Mich. App. at 219, quoting People v Lemmon, 456 Mich. 625, 645-646; 576 NW2d
129 (1998).
33
Unger, 278 Mich. App. 232.
34
Thomas confirmed that Brown had a braided hairstyle at trial and did not opine regarding his
body type. Thompson was uncertain regarding Brown’s hairstyle in April 2015, but indicated
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Brown also points to cell phone records indicating that approximately 1 minute before the
shooting was reported to 911 and approximately 3½ to 5 minutes after the 911 call, he was not in
the vicinity of Longacre and Wadsworth. Specifically, a 3:51 p.m. call utilized what Brue
described as the “grey sector,” the far edge of which ends approximately one block south to
south-east of the scene. Calls at 3:56 p.m. and 3:58 p.m. utilized what Brue referred to as the
“yellow sector,” the far edge of which ends approximately one to two blocks east of the scene.
However, Brue made the limitations of the information available from call detail records
abundantly clear: he could not definitively place a person in a particular location based on the
records. Rather, he could only opine as to whether the cellular site used by a cell phone was
consistent with being in a location. Furthermore, he explained that the geographic dimensions
covered by each cellular site were not exact and that the maps he prepared depicting the relevant
sites and sectors only showed the intended service area. Brue also identified numerous reasons
why a cell phone might not connect to the intended or closest site, including factors like weather,
topography, and signal quality or strength.
Importantly, Brue acknowledged that these records seemingly placed Brown away from
the scene at the time of the shooting, but explained that in his experience, the actual dimensions
covered by Sprint (Brown’s service provider) cellular sites were often larger than the intended
dimensions Sprint communicated to law enforcement personnel. Thus, he opined that even
though Brown’s phone connected to cellular sites that were not intended to service the crime
scene, the close proximity of the utilized sites was still consistent with Brown being at the scene.
Undoubtedly, the cell phone records presented a weakness in the prosecution’s case against
Brown, but Brue’s interpretation of the records was not so seriously impeached that it was
rendered completely unbelievable. Accordingly, we will not conclude that the evidence
preponderated so heavily against the jury’s verdict that it would be a miscarriage of justice to
allow it to stand.
B. SENTENCING ERROR
Brown also argues that his case should be remanded to the trial court for correction of his
judgment of sentence and SIR. We agree, in part.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.”35 Whether the
statutory scoring conditions are satisfied by the trial court’s findings of fact is a question of
statutory interpretation and, therefore, reviewed de novo.36
that he might have had braids. She had difficulty recognizing him in a photograph in which he
did not have a long hairstyle.
35
People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013).
36
Id.
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Recognizing that the Double Jeopardy Clauses of the federal and state Constitutions
prohibit multiple homicide convictions for the death of a single victim, 37 the trial court vacated
Brown’s conviction for second-degree murder before sentencing him for the felony-murder and
armed-robbery convictions. As such, Brown correctly argues that the trial court erred by
assessing 20 points for PRV 7, which is only proper when the defendant has two or more
subsequent or concurrent convictions.38 Because Brown had only one concurrent conviction—
armed robbery—his score for PRV 7 should have been 10 points.39
Brown acknowledges on appeal that correction of this error will not alter the sentencing
guidelines range applicable to his armed robbery conviction and does not seek resentencing.
Instead, he requests that his case be remanded to the trial court only for “correction of his
Judgment of Sentence and SIR.” To the extent that Brown requests correction of his SIR, we
agree that remand is appropriate for the ministerial task of amending Brown’s PRV score.
However, Brown’s judgment of sentence accurately states that a jury found him guilty of second-
degree murder, that the second-degree murder conviction was vacated, and that Brown’s life
sentence attached only to the felony-murder conviction.40 As such, the judgment of sentence
need not be amended on remand.
V. DOCKET NO. 333932 – TJUAN MCCLOUD
A. BATSON41 ERROR
For his first claim of error, McCloud argues that he is entitled to a new trial because the
prosecutor violated his right to equal protection by using peremptory challenges to remove
potential African-American jurors. We disagree.
It is well settled that dismissal of a potential juror based solely upon his or her race
violates the Equal Protection Clause of the Fourteenth Amendment.42 When a defendant
challenges the prosecution’s dismissal of potential jurors as racially motivated, the trial court
employs the three-part test developed in Batson v Kentucky: “First, the defendant must show a
prima facie case of discrimination. Second, the prosecutor may rebut the defendant’s prima facie
37
People v Clark, 243 Mich. App. 424, 429; 622 NW2d 344 (2001).
38
MCL 777.57(1)(a).
39
MCL 777.57(1)(b).
40
The trial court left the minimum and maximum terms of imprisonment applicable to count
two, the second-degree murder count, blank on the judgment of sentence and added the
following comment: “Defendant was found guilty of Felony Murder and Second[-]Degree
Murder following jury trial. The convictions are merged for sentencing and the life sentence
attaches to the Felony Murder only. . . . Count 2 is vacated.”
41
Batson v Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986).
42
People v Knight, 473 Mich. 324, 335; 701 NW2d 715 (2005).
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case with a race-neutral reason for dismissing the juror. Third, the trial court must determine
whether the prosecutor’s explanation is a pretext for discrimination.”43 Our consideration of
purported Batson errors involves a mixed standard of review:
If the first step is at issue (whether the opponent of the challenge has satisfied his
burden of demonstrating a prima facie case of discrimination), we review the trial
court’s underlying factual findings for clear error, and we review questions of law
de novo. If Batson’s second step is implicated (whether the proponent of the
peremptory challenge articulates a race-neutral explanation as a matter of law),
we review the proffered explanation de novo. Finally, if the third step is at issue
(the trial court’s determinations whether the race-neutral explanation is a pretext
and whether the opponent of the challenge has proved purposeful discrimination),
we review the trial court’s ruling for clear error.[44]
To establish a prima facie case of discrimination under the first step, the party opposing
the peremptory challenge must show three things:
(1) he is a member of a cognizable racial group; (2) the proponent has exercised a
peremptory challenge to exclude a member of a certain racial group from the jury
pool; and (3) all the relevant circumstances raise an inference that the proponent
of the challenge excluded the prospective juror on the basis of race.[45]
On the third day of jury selection, Brown’s attorney objected to the prosecutor’s use of a
peremptory challenge to remove prospective juror KM. Counsel observed that KM was the fifth
African American to be removed from the jury panel by the prosecutor and asserted that all five
prospective jurors had been removed by virtue of their race. Although we note that the trial court
failed to make factual findings regarding other circumstances from which racial discrimination
could be inferred, the deficiency in the court’s ruling is of no consequence to the issue at hand
because a fair reading of the record demonstrates that the court ultimately ruled that the
prosecutor did not engage in purposeful discrimination, thereby rendering the first Batson step
moot.46
Of the eight individuals removed by the prosecutor, prospective jurors IP, JR, CR, KS,
and KM were African American. Consistent with Batson’s second step, the prosecutor explained
her reasons for dismissing each prospective juror. KM had giggled or laughed while answering
questions concerning her father’s criminal history and other matters during voir dire the previous
day. KS had unwittingly conversed with Brown’s brother outside of the courthouse. The
43
People v Armstrong, 305 Mich. App. 230, 238; 851 NW2d 856 (2014), citing Batson, 476 U.S.
96-98.
44
Knight, 473 Mich. at 345.
45
Id. at 336.
46
Id. at 338.
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prosecutor did not believe IP would make an appropriate juror because her brother and father had
both been convicted of drug trafficking offenses. JR, too, disclosed problems between her
brother and the police and, given the demands upon JR’s time as a student with dual
employment, the prosecution was concerned that she might not be attentive throughout the
lengthy trial. CR had a previous conviction for disorderly conduct. Additionally, the prosecutor
had observed CR and JR behaving “extremely touchy, feely,” in the courtroom. Thus, she was
concerned that the two women may have developed some sort of relationship which could
influence them to vote together or discuss the case outside of jury deliberations.
The reasons offered by the prosecution under the second step need not be persuasive or
plausible.47 Instead, the explanation must merely be based on something apart from race and,
“[u]nless a discriminatory intent is inherent in the prosecution’s explanation, the reason offered
will be deemed race neutral.”48 Here, although defense counsel began rebutting the prosecutor’s
proffered explanations before the court ruled regarding Batson’s second step, it is evident that
the prosecutor’s reasons did not involve race and were not inherently discriminatory.
The final step under Batson requires the trial court to “determine whether the race-neutral
explanation is a pretext and whether the opponent of the challenge has proved purposeful
discrimination.”49 In the trial court, defense counsel took issue with the prosecutor’s explanation
for removing KM, arguing that it made little sense for the prosecutor—who had a large number
of challenges remaining at all relevant times—to remove a prospective juror based on conduct
that occurred the day before and had not been repeated. The prosecutor, on the other hand,
maintained that she was following the defense attorneys’ practice of exercising only one
challenge at a time. Despite acknowledging that defense counsel “made a good point,” the court
concluded that it was satisfied with the prosecutor’s nondiscriminatory explanations. While the
court did not articulate specific findings or otherwise explain its rationale for accepting the
prosecutor’s explanations, a fair reading of the record suggests that the court determined that the
proffered explanations were not pretextual and that defendants had not proved purposeful
discrimination.
On appeal, McCloud simply concludes that the prosecutor’s explanations were not clear,
specific, legitimate, or related to the case being tried. These vague, generic criticisms do not
elucidate why the prosecutor’s proffered explanations were deficient or why McCloud contends
that the trial court erred by concluding that the prosecutor had not engaged in purposeful
discrimination. As such, this issue is abandoned because “[a]n appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims . . . .”50 Moreover, even if this issue had been properly presented, the prosecutor’s
explanations were supported by the record and, having reviewed the voir dire transcripts, we see
47
Id. at 337.
48
Id. (quotation marks and citation omitted).
49
Id. at 337-338.
50
People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998).
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no basis for doubting the credibility of the prosecutor’s proffered explanations. Accordingly,
this Court will defer to the trial court’s conclusion that the prosecutor did not engage in
purposeful misconduct.51
B. STATEMENTS AGAINST PENAL INTEREST
We review preserved claims of evidentiary error for an abuse of discretion, which occurs
when the trial court “chooses an outcome that is outside the range of reasonable and principled
outcomes.”52
MRE 804 sets forth several exceptions to MRE 802’s general rule prohibiting admission
of hearsay statements. Relevant to the instant matter is the exception set forth in MRE 804(b)(3),
which permits admission of an unavailable declarant’s out-of-court statement where the
statement is “at the time of its making . . . so far tended to subject the declarant to civil or
criminal liability . . . that a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true.”53 On appeal, McCloud argues that the trial court erred
by allowing Williams-Mitchell to testify about statements made by Fields and Webster,54
implicating not only themselves in Perry’s death, but also McCloud. McCloud maintains that
these statements were inadmissible because they did not bear sufficient indicia of reliability. We
disagree.
Williams-Mitchell testified that Fields, Webster, and Thompson came to her house in the
early morning hours of April 20. While there, they discussed the events of the previous day. In
particular, they indicated that Fields instructed Thompson to pretend that her car would not start
so Perry would help her, Webster shot Perry with a gun belonging to Brown, and McCloud was
51
See also Knight, 473 Mich. at 344 (stating that the trial court’s finding under Batson’s third
step should be accorded great deference).
52
People v Orr, 275 Mich. App. 587, 588-589; 739 NW2d 385 (2007).
53
MRE 804(b)(3).
54
The hearsay exceptions set forth in MRE 804(b) apply only to statements made by a declarant
who is deemed unavailable under MRE 804(a). On appeal, McCloud takes issue with the
hearsay statements made by Webster and Fields who, as nontestifying codefendants, were
undoubtedly unavailable for purposes of MRE 804. MRE 804(a)(1). However, Williams-
Mitchell described the content of a conversation that took place between Webster, Fields, and
Thompson, without identifying specific statements made by each person. Although McCloud
does not raise this issue, we note that statements made by Thompson would not be admissible
under MRE 804(b)(3) because, as a testifying witness at trial, she was not an unavailable
declarant. In any event, even if this issue had been raised, it would not warrant reversal because
the error was harmless. See People v Smith, 243 Mich. App. 657, 680; 625 NW2d 46 (2001)
(applying harmless error analysis to evidentiary error). Thompson was cross-examined at length
regarding the incident and each defendant’s role, and Williams-Mitchell’s recollection of the
matters discussed was consistent with Thompson’s testimony.
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supposed to take Perry’s car. However, Perry’s car would not start, so Thompson had to return
to the scene to pick up McCloud.
Although MRE 804(b)(3) does not explicitly speak to those portions of an out-of-court
statement that might expose others, in addition to the declarant, to criminal liability, our Supreme
Court has held that such statements can fall within the ambit of the rule:
[W]here . . . the declarant’s inculpation of an accomplice is made in the context of
a narrative of events, at the declarant’s initiative without any prompting or
inquiry, that as a whole is clearly against the declarant’s penal interest and as such
is reliable, the whole statement—including portions that inculpate another—is
admissible as substantive evidence at trial pursuant to MRE 804(b)(3).[55]
Contrary to McCloud’s argument, the admissibility of such a statement does not depend on
additional indicia of trustworthiness because its reliability can be inferred from the self-
incriminating nature of the statement itself.56
In this case, Williams-Mitchell’s testimony described a narrative conversation and there
is no indication in the record that the conversation was prompted by an outside inquiry. To the
contrary, Williams-Mitchell was the only person present who did not have first-hand knowledge
of the incident and she repeatedly stated at trial that she merely heard the conversation and did
not actively participate in it. Because Fields and Webster described their own roles in the
shooting, the conversation as a whole was clearly contrary to their penal interests. Accordingly,
the trial court did not err by allowing the prosecutor to introduce the entirety of Fields’s and
Webster’s hearsay statements.
C. EXPERT TESTIMONY OF STAN BRUE
This Court reviews a trial court’s decision to admit expert testimony for an abuse of
discretion. 57 A trial court’s ruling regarding an expert’s qualification is likewise reviewed for an
abuse of discretion.58 “A trial court abuses its discretion when it chooses an outcome that is
outside the range of reasonable and principled outcomes.”59
55
People v Poole, 444 Mich. 151, 161; 506 NW2d 505 (1993), overruled in part on other grounds
by People v Taylor, 482 Mich. 368; 759 NW2d 361 (2008).
56
Taylor, 482 Mich. at 379. See also Poole, 444 Mich. at 161 (“The circumstantial guaranty of
reliability for declarations against the interest is the assumption that persons do not make
statements which are damaging to themselves unless satisfied for good reason that they are
true.”).
57
Dobek, 274 Mich. App. at 93.
58
People v Steele, 283 Mich. App. 472, 480; 769 NW2d 256 (2009).
59
Orr, 275 Mich. App. at 588-589.
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The admissibility of an expert’s opinion is governed by MRE 702, which provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
In determining whether to admit proposed expert testimony, the trial court should ensure
that the testimony “(1) will assist the trier of fact to understand a fact in issue, (2) is provided by
an expert qualified in the relevant field of knowledge, and (3) is based on reliable data,
principles, and methodologies that are applied reliably to the facts of the case.”60
McCloud contends on appeal that Brue should not have been accepted as an expert
witness because he lacked the requisite qualifications. We disagree. The trial court ruled that
Brue could testify as an expert in the field of forensic analysis of cellular call detail records. The
trial court did not abuse its discretion in this regard, as Brue had received extensive training in
the functioning of cellular networks, as well as the computer programs used to analyze call detail
records, and had analyzed over 2,700 records in nearly 1,000 criminal investigations since 2010.
McCloud also contends that Brue should not have been permitted to testify regarding cell
phone records reflecting communications among defendants, Thompson, and Perry around the
time of the shooting. Again, we disagree. Brue presented charts reflecting the common calls or
text messages exchanged among those individuals between 2:52 p.m. and 4:52 p.m. on April 19
and the period between November 1, 2014, through July 2, 2015. On cross-examination, Brue
agreed that his purpose for preparing the charts was to demonstrate whether the volume of
communications between these individuals around the time of the shooting was consistent with
their historical patterns. However, apart from agreeing with inferences suggested by defense
counsel, Brue did not opine regarding the significance of the records.61 Rather, he merely
presented the voluminous records produced by each individual’s cellular service provider—
which were already admitted without objection—in a more consolidated format. Because MRE
1006 permits that practice, the trial court did not abuse its discretion by allowing the prosecution
to introduce the summarized records through Brue.
60
People v Kowalski, 492 Mich. 106, 120; 821 NW2d 14 (2012).
61
Brue agreed that given the frequency of communications between Fields and Thompson
between November 2014 and July 2015, it was not unusual that the two would have
communicated approximately 20 times on April 19, 2015.
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D. TEXT MESSAGES
We review preserved claims of evidentiary error for an abuse of discretion, which occurs
when the court “chooses an outcome that is outside the range of reasonable and principled
outcomes.”62 “[A] preserved, nonconstitutional error is not a ground for reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.”63
As a general rule, all relevant evidence is admissible.64 Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”65 However, even
if evidence is relevant, it may still be excluded “if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”66
McCloud contends that the trial court erred by admitting irrelevant and unfairly
prejudicial text messages sent from his phone to Brown’s phone on April 18, stating, “Bro say
it’s the same year Impala that he dropped yup [sic] off in,” and, “Same bolor [sic].” According
to McCloud, the most powerful, if not only, inference that can be drawn from these messages is
that McCloud was aiding and abetting Brown in the commission of an uncharged crime
involving the theft of the Impala. Without further context, the relevancy of these messages is
unclear. But assuming, without deciding, that the messages lacked relevance or that their
prejudicial effect substantially outweighed their probative value, any error arising from the
admission of the messages would not entitle McCloud to relief. The prosecution’s evidence
against McCloud was substantial. Thompson testified that McCloud discussed the plan with
Fields and Webster before the shooting; participated in a dry run earlier in the day to identify the
location where Thompson would lure Perry; stole Perry’s shorts, wallet, and cellphone; and
entered Perry’s vehicle with the intention of taking it. She also identified him as the person who
ran from the scene on foot and a series of photographs taken from his cell phone depicted what
appeared to be the areas surrounding the scene as he fled. The parties’ cell phone records
suggested that McCloud was in regular contact with Brown, Webster, and Fields in the period
before and after the robbery and murder and the cellular sites and sectors that serviced
McCloud’s phone during that period were consistent with being at or near the scene at the time
of the shooting. Finally, when McCloud was taken into custody later on April 19 he had Perry’s
62
Orr, 275 Mich. App. at 588-589.
63
People v Lukity, 460 Mich. 484, 496; 596 NW2d 607 (1999) (quotation marks and citation
omitted).
64
MRE 402.
65
MRE 401.
66
MRE 403.
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identification and credit card in his possession. In light of the above, it is improbable that the
ambiguous text messages affected the outcome of the trial.
VI. DOCKET NO. 333933 – ANTONIO WEBSTER
A. SUFFICIENCY OF THE EVIDENCE
This Court reviews challenges to the sufficiency of the evidence de novo.67 The evidence
is viewed “in the light most favorable to the prosecution to determine whether a rational trier of
fact could find that the evidence proved the essential elements of the crime beyond a reasonable
doubt.”68 Additionally, “[c]ircumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime.”69
Defendants were jointly charged with felony murder and armed robbery and prosecuted
under an aiding and abetting theory, which allows a defendant to be convicted of an offense if
(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.[70]
In challenging the sufficiency of the evidence presented against him, Webster argues on appeal
that there was insufficient evidence that he aided and abetted the commission of armed robbery
because there was no evidence that he deprived another person of property or shared in the
proceeds of the larceny committed by McCloud and Brown. He further reasons that because
armed robbery served as the predicate offense for his felony-murder conviction, both of his
convictions should be reversed. We disagree. Viewing the evidence in the light most favorable
to the prosecution, it is evident that the prosecution presented sufficient evidence from which the
jury could find beyond a reasonable doubt that Webster was guilty of armed robbery, even
without relying on an aiding and abetting theory.
Armed robbery typically involves “(1) an assault, and (2) a felonious taking of property
from the victim’s person or presence, while (3) the defendant is armed with a weapon described
in the statute.”71 However, when the Legislature amended the statutes defining robbery and
67
People v Henry (After Remand), 305 Mich. App. 127, 142; 854 NW2d 114 (2014).
68
Id. (quotation marks and citation omitted).
69
People v Carines, 460 Mich. 750, 757; 597 NW2d 130 (1999), quoting People v Allen, 201
Mich. App. 98, 100; 505 NW2d 869 (1993).
70
People v Moore, 470 Mich. 56, 67-68; 679 NW2d 41 (2004) (quotation marks and citation
omitted) (alteration in original).
71
Henry (After Remand), 305 Mich. App. at 142 (quotation marks and citation omitted).
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armed robbery in 2004, it removed “the words denoting actual deprivation of property—‘rob,
steal and take’—and replaced them with a broader phrase: ‘in the course of committing a
larceny.’ ”72 The Legislature further defined the phrase “in the course of committing a larceny”
to include “acts that occur in an attempt to commit the larceny, or during commission of the
larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to
retain possession of the property.”73 As our Supreme Court has explained, the revised statutory
language evinces the Legislature’s clear intent to include attempts to rob within the scope of
armed robbery.74 Accordingly, a defendant can be properly convicted of armed robbery even if
the larcenous taking is not completed.75
With this understanding in mind, it is apparent that the prosecution presented sufficient
evidence to prove that Webster was guilty of armed robbery beyond a reasonable doubt.
Thompson testified that when Fields described his plan to rob Perry, Webster said, “Okay,”
though he did not comment when Fields later said that Perry “had to go.” Thus, the jury could
infer that, at minimum, Webster was in agreement with Fields’s robbery scheme and intended to
participate in it. Webster then carried out his role by pointing a gun at Perry, telling him not to
move, and shooting him. In doing so, Webster clearly committed an unlawful act that placed
Perry in reasonable apprehension of an immediate battery—in other words, an assault 76—using a
dangerous weapon as required by MCL 750.529. Finally, with respect to the requirement that
these actions occur in the course of committing a larceny, Thomas testified on cross-examination
that the shooter took something from Perry’s vehicle before running from the scene. If the jury
found Thomas’s testimony credible, this would be sufficient evidence that Webster completed
the larcenous taking of Perry’s property. Even if the jury credited Thompson’s testimony
identifying McCloud, rather than Webster, as the person who entered Perry’s vehicle after the
shooting, there was still sufficient evidence regarding this element because Webster could be
convicted of armed robbery even if the larcenous taking was not completed.77 Given the
evidence of Webster’s earlier assent to Fields’s robbery plan and subsequent participation in
carrying it out, a rational jury could find him guilty of armed robbery beyond a reasonable doubt.
72
People v Williams, 491 Mich. 164, 171; 814 NW2d 270 (2012), quoting former MCL 750.529,
as amended by 1959 PA 71, and the current version of MCL 750.530, as amended by 2004 PA
128.
73
MCL 750.530(2).
74
Williams, 491 Mich. at 182-183.
75
Id. at 183.
76
Henry (After Remand), 305 Mich. App. at 143.
77
Williams, 491 Mich. at 183.
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B. UNTIMELY DISCOVERY AND WITNESS ENDORSEMENT
A trial court’s ruling on a motion for continuance or adjournment is reviewed for an
abuse of discretion.78 Decisions regarding amendment of the prosecution’s witness list are also
reviewed for an abuse of discretion.79 “A trial court abuses its discretion when it chooses an
outcome that is outside the range of reasonable and principled outcomes.”80
Webster contends that he was denied due process and the right to a fair trial as a result of
the trial court’s handling of two discovery issues that arose during and after jury selection, but
before opening statements had been made. First, Webster takes issue with the length of the
adjournment granted by the trial court after the prosecution produced 2,800 pages of discovery
on March 19, 2016, when opening statements were scheduled for March 21, 2016. However, the
record reflects that after objecting to an earlier one-day adjournment granted on March 21, 2016,
the parties all agreed on March 22, 2016, that they would be prepared to proceed with opening
statements after an additional two-day adjournment. By agreeing that the second adjournment
would provide an adequate time to review the newly produced discovery materials, Webster
intentionally relinquished a known right, thereby waiving any error arising from the trial court’s
ruling. 81
The second basis for Webster’s claim of error relates to the late endorsement of Cynthia
Fain as a witness for the prosecution. On March 16, 2016, the third day of jury selection, the
prosecution moved to amend its witness list to include Fain. Pursuant to MCL 767.40a(4), with
the court’s leave, the prosecution may add or delete a witness from its list of trial witness upon a
showing of good cause.82 The prosecution acknowledged that it had been aware for some time
that Fain had reported her burgundy Impala stolen the day before the murder. However, because
she had been moving between different homeless shelters, the prosecution was unable to locate
and interview her until March 15, 2016. The prosecution’s investigator testified that he began
looking for Fain in November 2015, checking addresses and phone numbers she provided to the
police when reporting her Impala stolen. He also followed up at prior addresses associated with
Fain in other police and state records, including two or three homeless shelters. The investigator
left phone messages with several friends and family members and eventually received a return
call from a gentleman who provided a new cell phone number for Fain and agreed to give her the
investigator’s message. When the investigator finally got in touch with Fain, she agreed to meet
with the prosecution for an interview. The interview was conducted on March 15, 2016, at
which point the prosecution first learned that Fain had an intimate relationship with Webster
before the theft and could therefore identify him as the person who stole her Impala.
78
People v Jackson, 467 Mich. 272, 276; 640 NW2d 665 (2002).
79
People v Callon, 256 Mich. App. 312, 325-326; 662 NW2d 501 (2003).
80
Orr, 275 Mich. App. at 588-589.
81
People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000).
82
See also Callon, 256 Mich. App. at 327.
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Under these circumstances, the trial court did not abuse its discretion by finding that the
prosecution had demonstrated good cause to add Fain as a witness. The prosecution’s
investigator made substantial efforts to locate Fain in advance of trial but was unsuccessful
owing in large part to Fain’s transient housing circumstances. Although the prosecution
suspected that Fain was the owner of the Impala used in the April 19 incident based on the
timing of the theft, the significance of Fain’s availability as a witness lay in her ability to identify
Webster as the person who stole her vehicle. At the time the prosecution filed its witness list, it
had no reason to believe that Fain would be able to confidently link any defendant to the Impala
because Fain did not disclose that she knew the thief when she reported the incident to the police.
Moreover, the court’s ruling did not unfairly prejudice Webster.83 Because Webster’s
former relations with Fain were known to him, her testimony should not have come as a surprise.
Additionally, when the trial court ruled that the prosecution could add Fain to its witness list, it
also appointed an investigator to conduct a second interview on Webster’s behalf, thereby
ensuring that Webster’s attorney was prepared to cross-examine Fain when she testified over two
weeks later.
C. DOUBLE JEOPARDY
In a supplemental brief filed on his own behalf, Webster also argues that his
constitutional protection against double jeopardy was violated when he was convicted of both
felony murder and second-degree murder stemming from Perry’s death. Although Webster
correctly notes that the federal and state Constitutions prohibit multiple homicide convictions
arising from the death of a single victim, the appropriate remedy for such a constitutional
violation is to vacate one of the convictions.84 Because the trial court vacated Webster’s second-
degree murder conviction at his sentencing hearing, this claim of error is moot.
D. EXPERT TESTIMONY OF DR. AUNEESH GUPTA
Next, Webster argues in his Standard 4 brief that the medical examiner who performed
Perry’s autopsy should not have been permitted to opine regarding the distance from which Perry
was shot. We disagree.
As already noted, we review the trial court’s decision to admit expert testimony85 and its
ruling regarding an expert’s qualification86 for an abuse of discretion. “A trial court abuses its
83
See id. at 328 (noting that the defendant must demonstrate that the trial court’s decision to
allow late endorsement of witness resulted in prejudice).
84
See Clark, 243 Mich. App. at 429-430.
85
Dobek, 274 Mich. App. at 93.
86
Steele, 283 Mich. App. at 480.
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discretion when it chooses an outcome that is outside the range of reasonable and principled
outcomes.”87
The parties stipulated that Dr. Gupta was an expert in the field of forensic pathology. Dr.
Gupta testified that Perry died as a result of multiple gunshot wounds, but stated that his
conclusion regarding the range of fire was indeterminate. However, he opined that the shooter
was more than 18 to 24 inches away, based on the absence of soot or stippling on Perry’s skin.
According to Webster, Dr. Gupta was not qualified to render that opinion because he lacked
expertise relating to firearms. This position is unavailing because an expert can be qualified by
“knowledge, skill, experience, training, or education,”88 and Dr. Gupta testified that his training
included hands-on experience and reading about the characteristics of gunshot wounds to
determine whether a firearm was discharged at close, intermediate, or indeterminate range. In
any event, when a witness is properly qualified as an expert, as Dr. Gupta was in this case,
“[g]aps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to
the weight of his testimony, not its admissibility.”89 The trial court did not abuse its discretion in
this regard.
E. PHOTOGRAPHS
Lastly, Webster argues that the trial court erred by excluding two photographs of
Thompson from evidence at trial. The photographs at issue were not provided to this Court for
review, but the trial court described them as “very provocative pictures” depicting Thompson
“with very limited clothing on . . . .” The trial court precluded Webster’s use of the photographs,
reasoning that they had minimal probative value and that any such value was “extremely”
outweighed by the risk of unfair prejudice. In articulating his claim of appeal, Webster merely
states that the trial court erred because the photographs could have been used to impeach Thomas
and “set forth a defense,” but does not attempt to explain how the photographs were relevant or
why they should not have been excluded under MRE 403. By failing to rationalize the basis for
his claim or furnish this Court with a sufficient record to review, Webster has effectively
abandoned appellate review of the purported err.90
87
Orr, 275 Mich. App. at 588-589.
88
MRE 702.
89
People v Gambrell, 429 Mich. 401, 408; 415 NW2d 202 (1987).
90
Kelly, 231 Mich. App. at 640-641 (“An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims . . . .”).
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VII. CONCLUSION
In Docket Nos. 333931, 333932, and 333933, we affirm defendants’ convictions and
sentences. We also affirm Brown’s convictions and sentences in Docket No. 333927, but
remand his case to the trial court for the ministerial task of correcting Brown’s SIR consistent
with this opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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