People of Michigan v. Reco Nathaniel Simmons ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 15, 2016
Plaintiff-Appellant,
v No. 323081
Wayne Circuit Court
RECO NATHANIEL SIMMONS, LC No. 13-004236-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 323162
Wayne Circuit Court
AQUIRE BERNARD SIMMONS, LC No. 13-004236-02-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 323229
Wayne Circuit Court
FREDRICK KYLE YOUNG, LC No. 13-004223-FC
Defendant-Appellee.
Before: TALBOT, C.J., and WILDER and BECKERING, JJ.
PER CURIAM.
-1-
The instant appeals arise out of an armed robbery and murder that occurred in August,
2012. After a joint trial before a single jury, defendant Reco Nathaniel Simmons (Reco) was
convicted of second-degree murder,1 armed robbery,2 first-degree home invasion,3 and
possession of a firearm during the commission of a felony (felony-firearm).4 His brother and
codefendant Aquire Bernard Simmons was convicted of assault with intent to do great bodily
harm less than murder (AWIGBH),5 armed robbery, and first-degree home invasion. Defendant
Fredrick Kyle Young was convicted of first-degree home invasion. We affirm.
I. FACTS
On August 8, 2012, Michael Montgomery (Montgomery) concocted a plan to rob the
home of Melissa Villneff (Melissa). He enlisted the help of Reco and Aquire. These two sought
out four additional men to help: Fredrick, Michael Evans (Evans), Felando Hunter (Felando), and
Brandon Crawford (Brandon). That evening, Evans drove the group in his Explorer to Melissa’s
home. When the group first arrived, they noticed a group of young children playing outside, and
decided against going forward with their plan at that time. But a short time later, armed with an
SK assault rifle, revolvers, and a baseball bat, the men executed their plan.
Evans stayed behind as the getaway driver. Montgomery, who knew that Patrick Villneff
was at the house, lured him away by going for a walk with him and Patrick’s dog. Fredrick,
Felando, Reco, and Aquire entered the house. Apparently to their surprise, Terrance Villneff
(Terrance) was inside, playing a video game. One of the men struck him in the face. Armed
with the rifle, Felando ordered Terrance to a bedroom in the back of the house. There, Aquire
beat him with the baseball bat at Felando’s direction. The other men searched the home.
Eventually, the men left. But as they did, they noticed that Melissa’s father and next-door
neighbor, John Villneff, was standing on his porch and calling 911. John had been alerted to the
robbery by one of the children, who had seen the men enter Melissa’s home. Reco fired a few
shots from his revolver toward John, and Felando fired several more with the assault rifle. John
was struck by one of these bullets and died shortly after.
II. DOCKET NO. 323081
In Docket No. 323081, Reco argues that counsel was ineffective for admitting in closing
argument Reco was guilty of murder, but only in the second degree. We disagree. “Whether a
person has been denied effective assistance of counsel is a mixed question of fact and
1
MCL 750.317. All three defendants were charged with first-degree felony murder, MCL
750.316, assault with intent to commit murder, MCL 750.83, armed robbery, and first-degree
home invasion.
2
MCL 750.529.
3
MCL 750.110a(2).
4
MCL 750.227(b).
5
MCL 750.84.
-2-
constitutional law. A judge must first find the facts, and then must decide whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel.”6
But “[b]ecause [Reco] failed to move for a new trial or request a Ginther[7] hearing below, our
review of this issue is limited to mistakes apparent on the appellate record.”8 “If the record does
not contain sufficient detail to support [Reco]’s ineffective assistance claim, then he has
effectively waived the issue.”9
To be entitled to a new trial, Reco “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.”10 “In examining whether
defense counsel’s performance fell below an objective standard of reasonableness, a defendant
must overcome the strong presumption that counsel’s performance was born from a sound trial
strategy.”11 “This Court will not substitute its judgment for that of counsel regarding matters of
trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.”12
At trial, substantial evidence of Reco’s involvement in the crimes was presented. This
evidence included multiple witnesses who testified that Felando told Demerious Cunningham
(Demerious) that Reco shot John, as well as Reco’s statement to his aunt, in which Reco
admitted firing at John. Recognizing that this evidence would likely result in a murder
conviction, defense counsel argued in closing that “the verdict in this case is guilty. But the
question is guilty of what? Is it first degree—excuse me. First degree felony murder? Is it
second degree?”
Reco now argues that by admitting guilt, trial counsel was ineffective. As the United
States Supreme Court has recognized, in cases where a client’s guilt is clear, such a strategy may
well be reasonable.13 Given the evidence admitted at trial, which overwhelmingly demonstrated
that Reco was a participant in a robbery during which a victim was shot and killed, and
moreover, that Reco was likely the shooter, pleading for leniency in the form of a sentence of
second-degree murder was a reasonable strategy. It was also successful. Despite strong
evidence that Reco was guilty of first-degree murder, the jury convicted him only of second-
6
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
7
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
8
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
9
Id.10
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
11
Id. at 52.
12
People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
13
See Florida v Nixon, 543 US 175; 125 S Ct 551; 160 L Ed 2d 565 (2004) (recognizing that it
may well be a reasonable trial strategy to admit guilt to a lesser offense in an attempt to avoid the
potential consequences of a finding of guilt of a higher offense).
-3-
degree murder, thereby allowing Reco to avoid the mandatory sentence of life imprisonment
without parole that would attach to a first-degree murder conviction.14 We will “not second-
guess counsel’s trial tactic of admitting guilt of a lesser offense.”15
Reco also argues that counsel was ineffective for failing to consult with Reco before
committing to this strategy. The existing record, however, does not disclose whether counsel did
or did not discuss this strategy with Reco. While Reco expressed his dissatisfaction with
counsel’s closing argument to the trial court, he did not clearly state that counsel proceeded
without Reco’s knowledge. Further, the trial court’s comments, with which Reco agreed,
indicated he had spoken with counsel regarding the strong likelihood that he would be convicted,
which was the very reason counsel adopted the strategy. And despite the trial court suggesting
that an evidentiary hearing would be necessary to resolve the issue, Reco never sought an
evidentiary hearing. Thus, counsel was never given the opportunity to explain whether he
discussed this strategy with Reco, and the trial court was never given the opportunity to resolve
the question. Because the existing record does not support Reco’s claim of ineffective assistance
of counsel, he has effectively waived the challenge.16
III. DOCKET NO. 323162
A. JUDICIAL BIAS
In Docket No. 323162, Aquire first argues that he was deprived of a fair trial by
comments made by the trial court during voir dire. We disagree. Because Aquire failed to raise
any such challenge in the trial court, we review the issue for plain error affecting his substantial
rights.17
“A trial judge’s conduct deprives a party of a fair trial if a trial judge’s conduct pierces
the veil of judicial impartiality.”18 “A judge’s conduct pierces this veil and violates the
constitutional guarantee of a fair trial when, considering the totality of the circumstances, it is
reasonably likely that the judge’s conduct improperly influenced the jury by creating the
appearance of advocacy or partiality against a party.”19 “Furthermore, the party who challenges
14
MCL 750.316(1) (“[A] person who commits . . . first degree murder [] shall be punished by
imprisonment for life without eligibility for parole[.]”).
15
People v Emerson (On Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994).
16
Id. We note that Reco does not ask this Court to remand for an evidentiary hearing to resolve
the issue. In fact, he takes the opposite position, stating that “an additional determination in the
lower court is not needed for review.”
17
People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011).
18
People v Stevens, 498 Mich 162, 170; 869 NW2d 233 (2015).
19
Id. at 171.
-4-
a judge on the basis of bias or prejudice must overcome a heavy presumption of judicial
impartiality.”20
During voir dire, after a potential juror stated that she worked for an attorney, the trial
court explained that the jury would be required to follow the law as articulated by the trial court.
Aquire claims that the following comment deprived him of a fair trial:
Thank you very much, and I want all jurors to know this is not an ego
thing. It is a legal requirement. The law that I give you is being taken down in
writing.
If we allow you to use the law that somebody told you in the hallway, or at
an office party, or anyplace else, a defendant couldn’t get a fair trial because then
the Court of Appeals could never know what law was used.
Aquire contends that by referencing the possibility of an appeal, the trial court conveyed
to the jury that Aquire was guilty and would be pursuing an appeal. Fairly taken in context, the
trial court’s comment made no such suggestion. The trial court simply explained one reason why
it was important that the jury follow the instructions provided by the court. Aquire was not
deprived of a fair trial.
B. STATEMENTS AGAINST INTEREST
Aquire next argues that the trial court violated his due process rights by admitting hearsay
statements under the exception for statements against interest.21 We disagree. “This Court
reviews de novo both constitutional claims and preliminary questions of law regarding
admissibility of evidence.”22 This Court reviews “the trial court’s ultimate decision regarding
admissibility of evidence for an abuse of discretion.”23 “An abuse of discretion occurs when
[the] trial court’s decision is outside the range of principled outcomes.”24
At the outset, it appears that the parties and the trial court erroneously read our Supreme
Court’s decision in People v Taylor25 and its effect on the Court’s prior decision, People v
Poole.26 In Poole, our Supreme Court addressed the admissibility of statements against interest
20
Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).
21
MRE 804(b)(3).
22
People v Duenaz, 306 Mich App 85, 90; 854 NW2d 531 (2014).
23
Id.24
Id.25
People v Taylor, 482 Mich 368; 759 NW2d 361 (2008).
26
People v Poole, 444 Mich 151; 506 NW2d 505 (1993), abrogated in part by Taylor, 482 Mich
368.
-5-
under MRE 804(b)(3) and the Confrontation Clause of the Sixth Amendment.27 The Court first
determined that the entire statement at issue in Poole was admissible under MRE 804(b)(3).28
The Court then “consider[ed] whether admission of [the] statement violate[d]” the Confrontation
Clause.29 The Court explained that the statement did not violate the Confrontation Clause if the
declarant was “unavailable as a witness and his statement bears adequate indicia of reliability or
falls within a firmly rooted hearsay exception.”30 The Court declined to determine whether MRE
804(b)(3) was a firmly rooted hearsay exception, and instead, considered whether the statement
at issue bore adequate indicia of reliability.31 The Court turned to several factors to decide the
question:
In evaluating whether a statement against penal interest that inculpates a
person in addition to the declarant bears sufficient indicia of reliability to allow it
to be admitted as substantive evidence against the other person, courts must
evaluate the circumstances surrounding the making of the statement as well as its
content.
The presence of the following factors would favor admission of such a
statement: whether the statement was (1) voluntarily given, (2) made
contemporaneously with the events referenced, (3) made to family, friends,
colleagues, or confederates—that is, to someone to whom the declarant would
likely speak the truth, and (4) uttered spontaneously at the initiation of the
declarant and without prompting or inquiry by the listener.
On the other hand, the presence of the following factors would favor a
finding of inadmissibility: whether the statement (1) was made to law
enforcement officers or at the prompting or inquiry of the listener, (2) minimizes
the role or responsibility of the declarant or shifts blame to the accomplice, (3)
27
See Poole, 444 Mich at 157-166.
28
Id. at 157-162. As it pertained to MRE 804(b)(3), the pertinent question in Poole was whether
statements made by a declarant implicating another person, but made in a narrative of events also
inculpating the declarant, were admissible. Id. Poole argued that “only those portions of a
statement that directly inculpate the declarant [could] be admitted as substantive evidence.” Id.
at 161. The Court rejected this formulation of MRE 804(b)(3), holding that “where, as 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).”
Id.29
Id. at 162.
30
Id.31
Id. at 163-164.
-6-
was made to avenge the declarant or to curry favor, and (4) whether the declarant
had a motive to lie or distort the truth.[32]
In the trial court, the prosecutor argued that these factors weighed in favor of admitting
the statements. Each defendant contested the issue, and all focused largely on the question of
whether the statements were made sufficiently close in time to the crimes to be considered
contemporaneous. The trial court ruled that the statements were contemporaneous, and thus,
were nontestimonial and did not implicate the Confrontation Clause. This analysis, based on
Poole’s formulation of the Confrontation Clause question, was erroneous because Taylor has
since abrogated that formulation:
We hold that the portion of Poole pertaining to the requirements of the
Confrontation Clause is no longer good law because it was premised on Ohio v
Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597 (1980), which has been
overruled by Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d
177 (2004), and Davis v Washington, 547 US 813; 126 S Ct 2266 165 L Ed 2d
224 (2006). Because the hearsay statements in this case were nontestimonial,
they do not implicate the Confrontation Clause, Davis, supra at 821, and their
admissibility is governed solely by MRE 804(b)(3).[33]
On appeal, Aquire similarly looks to the Poole “indicia of reliability” factors to argue that
the admission of the statements violated his constitutional rights. Specifically, he argues that the
statements were not made contemporaneously with the crimes, “were not spontaneous but
instead in response to questioning[,]” and that “all of the witnesses had [a] motive to lie
regarding the alleged statements as a result of arrests and threats of prosecution by the police.”
These inquiries are of no relevance to this particular matter.
Rather, as explained in Taylor, there are two relevant inquiries to be made when a
prosecutor seeks to admit statements under MRE 804(b)(3) that inculpate a defendant: whether
the statements are testimonial, implicating the Confrontation Clause, and whether the statements
are admissible under MRE 804(b)(3). Here, the statements were not testimonial “because they
were made informally to an acquaintance, not during a police interrogation or other formal
proceeding, . . . or under circumstances indicating that their primary purpose was to establish or
prove past events potentially relevant to a later criminal prosecution[.]”34 Thus, admission of the
statements did not violate the Confrontation Clause.35
32
Id. at 165.
33
Taylor, 482 Mich at 374.
34
Id. (quotation marks and citations omitted).
35
Id.-7-
It is also clear that the statements were admissible under MRE 804(b)(3), which allows
the admission of statements against interest when the declarant is unavailable to testify. Such
statements are defined as:
A statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement.[36]
Aquire does not argue that the declarants were available, nor was any such claim raised in
the trial court. There is no doubt that the statements were against the penal interest of the
declarants, such “that a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true.”37 In every statement, the declarant admitted to recently
participating in an armed robbery that resulted in a person’s death.38 The final sentence of MRE
804(b)(3) is of no relevance to this matter, as the statements were not “offered to exculpate the
accused . . . .”39 Thus, there is no need to consider whether “corroborating circumstances clearly
indicate[d] the trustworthiness of the statement[s].”40 Accordingly, the statements were
admissible under MRE 804(b)(3).
We note that the factors discussed in Poole are not entirely without relevance in
Michigan’s jurisprudence. In People v Barrera, our Supreme Court considered whether
statements against the declarant’s penal interest, but which tended to exculpate the accused,
could be admitted by the defendant.41 In examining MRE 804(b)(3)’s final sentence, i.e.,
whether corroborating circumstances indicating that such exculpatory statements were
36
MRE 804(b)(3).
37
MRE 804(b)(3).
38
We note that Aquire does not make any meaningful argument regarding whether those
portions of the statements inculpating him, rather than the declarant, were admissible. And in
any event, the entire statements were admissible. This is because the portions of the statements
inculpating Aquire were made in the context of a narrative of events, at the declarant’s initiative,
without prompting or inquiry. See Taylor, 482 Mich at 378-379.
39
MRE 804(b)(3).
40
MRE 804(b)(3).
41
People v Barrera, 451 Mich 261, 266-267; 547 NW2d 280 (1996).
-8-
trustworthy, the Court held that the proper inquiry was to consider the factors stated in Poole.42
Taylor addressed the admissibility of inculpatory statements,43 and thus, should not be read as
abrogating the relevance of the Poole factors when addressing exculpatory statements. But here,
the statements were purely inculpatory. Thus, the Poole factors are of no relevance to this case.
C. SEVERANCE OF TRIALS
Aquire next contends that the trial court erred by failing to sever his trial from those of
his codefendants. Because Aquire did not seek severance in the trial court, we review the issue
for plain error.44
“There is no absolute right to separate trials, and in fact, a strong policy favors joint trials
in the interest of justice, judicial economy, and administration.”45 Whether to hold separate trials
is a matter within the trial court’s discretion.46 “Severance is mandated under MCR 6.121(C)
only when a defendant provides the [trial] court with a supporting affidavit, or makes an offer of
proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will be
prejudiced and that severance is the necessary means of rectifying the potential prejudice.”47
“The failure to make this showing in the trial court, absent any significant indication on appeal
that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder decision.”48
Aquire made no attempt in the trial court to demonstrate that a joint trial would cause any
prejudice; indeed, he never sought a separate trial. He now argues that the failure to hold
separate trials prejudiced him in two ways. First, he asserts that, had the trial court held separate
trials, evidence of the conduct of his codefendants would not have been admitted against him.
Aquire offers no explanation of why witnesses would not have been able to testify to the entire
sequence of events that occurred, including the acts undertaken by Fredrick and Reco, at a trial
held with respect only to Aquire. Aquire also argues that the statements discussed in the
previous issue would not have been admitted at a separate trial. But he similarly offers no reason
why these statements could not be admitted against him alone. Aquire cannot simply state a
position and leave it to this Court to rationalize the basis for his contention of error.49 As Aquire
42
Id. at 272-276. The Court also explained that additional factors were relevant in instances
where “the statement was made to the authorities while the declarant was in custody . . . .” Id. at
275-276.
43
Taylor, 482 Mich at 370.
44
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
45
People v Bosca, 310 Mich App 1, 44; 871 NW2d 307 (2015) (quotation marks, brackets, and
citation omitted).
46
People v Hana, 447 Mich 325, 331; 524 NW2d 682 (1994).
47
Id. at 346.
48
Id. at 346-347.
49
People v Waclawski, 286 Mich App 634, 679; 780 NW2d 321 (2009).
-9-
has not demonstrated that any actual prejudice occurred as the result of the trial court’s decision
to hold a joint trial, this Court may not reverse.50
Aquire also argues that counsel was ineffective for failing to seek severance. Because he
has failed to demonstrate the existence of error or any prejudice resulting from the failure to seek
separate trials, Aquire’s claim of ineffective assistance fails.51
D. SENTENCING ERROR
In his final argument, Aquire contends that the trial court made an independent finding
that he was guilty of murder at sentencing, despite the fact that the jury acquitted him of murder.
We disagree. Because this error was not raised below, our review is for plain error.52
Aquire’s argument arises from the following statements of the trial court at sentencing:
And I am going to stack these. Because if one of those boys had said, no,
I’m not going along with this the rest of them might not have, and none of this
might have happened. But he’s just as responsible for that man’s death as
everybody else. Although the jury didn’t convict him of the Second Degree
Murder. As I said, how am I going to – a Robbery Armed and a Home Invasion
First Degree, and you don’t find – even though the man died during it – you don’t
find Second Degree Murder. They wanted to give him a break.
And so he will serve the Home Invasion and the Robbery Armed
consecutive to each other.
“Although a trial court may not make an independent finding of guilt with respect to a
crime for which a defendant has been acquitted, and then sentence the defendant on the basis of
that finding, the court in fashioning an appropriate sentence may consider the evidence offered at
trial, including other criminal activities established even though the defendant was acquitted of
the charges, and the effect of the crime on the victim.”53 Read in context, the trial court did not
make a finding that Aquire was guilty of murder. Indeed, the trial court repeatedly
acknowledged that the jury had not reached that conclusion. It did, however, consider the fact
50
Hana, 447 Mich at 346-347.
51
See Trakhtenberg, 493 Mich at 51 (to be entitled to relief on a claim of ineffective assistance
of counsel, a defendant must demonstrate a reasonable likelihood of a different result absent the
error); People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.”).
52
People v Meshell, 265 Mich App 616, 638; 696 NW2d 754 (2005).
53
People v Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1999) (citations omitted).
-10-
that while Aquire had not been convicted of murder, the crimes of which he was convicted
nonetheless led to John’s death. In doing so, the trial court did no more than consider the
criminal activities established at trial and the effect of those activities on the victims, as it was
permitted to do.54 Aquire’s argument is without merit.
IV. DOCKET NO. 323229
In Docket No. 323229, Fredrick raises a single argument: that the prosecutor failed to
present sufficient evidence to support his conviction of home invasion. We disagree. “In
determining whether sufficient evidence exists to sustain a conviction, this Court reviews the
evidence in a light favorable to the prosecution.”55 We will affirm Fredrick’s conviction if the
evidence would allow a rational juror to find him guilty beyond a reasonable doubt.56
Fredrick challenges his conviction of first-degree home invasion. First-degree home
invasion is defined by MCL 750.110a(2), which provides:
A person who breaks and enters a dwelling with intent to commit a felony,
larceny, or assault in the dwelling, a person who enters a dwelling without
permission with intent to commit a felony, larceny, or assault in the dwelling, or a
person who breaks and enters a dwelling or enters a dwelling without permission
and, at any time while he or she is entering, present in, or exiting the dwelling,
commits a felony, larceny, or assault is guilty of home invasion in the first degree
if at any time while the person is entering, present in, or exiting the dwelling
either of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
There was ample evidence that Fredrick participated in the robbery. Terrance testified
that several men entered the home, although he could not specifically identify Fredrick as one of
these men. However, Fredrick was identified as one of several individuals who traveled to
Melissa’s home intending to commit a robbery. Montgomery testified that Fredrick’s role was to
be one of the men who entered the home. Fredrick was identified as having exited Evans’s
Explorer and heading toward the home with the other participants. And after the robbery, he was
one of the men picked up by Evans and driven away from the location. There was also evidence
demonstrating that he was in possession of at least some of the items stolen from Melissa’s
home. Regardless of whether Terrance or any other witness specifically testified to seeing him
inside the home, there was more than adequate circumstantial evidence that would allow a
rational juror to conclude that he was one of the men who entered Melissa’s home. Because
54
Id.55
People v Sherman-Huffman, 466 Mich 39, 40; 642 NW2d 339 (2002).
56
Id.-11-
circumstantial evidence can provide satisfactory proof of the elements of a crime,57 Fredrick’s
argument lacks merit.
Affirmed.
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
/s/ Jane M. Beckering
57
Bosca, 310 Mich App at 16.
-12-