People of Michigan v. Jomo Thomas ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 27, 2016
Plaintiff-Appellee,
v No. 326806
Wayne Circuit Court
JOMO THOMAS, LC No. 14-008967-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of first-degree
premeditated murder, MCL 750.316(1)(a). He was sentenced to life imprisonment without
parole for each conviction. We affirm.
I. FACTUAL BACKGROUND
Defendant was convicted of murdering his estranged wife, Tocarra Sims, and her
boyfriend, Martin Thomas (no relation to defendant), during the evening of January 4, 2014, or
the early morning of January 5, 2014. Tocarra’s teenage son discovered the bodies when he
returned to Tocarra’s home on January 5, 2014, after spending the night at his grandmother’s
house. The victims died from blunt force trauma, and their injuries were consistent with those
inflicted by a two-by-four board with protruding nails, which was discovered inside the house.
There were no eyewitnesses to the homicide. At trial, the prosecutor introduced evidence
that Tocarra had filed for divorce and obtained a personal protection order (“PPO”) against
defendant in October 2013. Tocarra’s son testified that a few days before the homicide,
defendant forcibly entered Tocarra’s home, argued with her, and threatened her. Defendant’s
cell phone records indicated that his phone traveled to the area of Tocarra’s home and returned to
the area of the house where defendant was living with his girlfriend during the early morning
hours of January 5, 2014. Likewise, a vehicle matching the description of a Grand Marquis
owned by defendant’s girlfriend was captured on a surveillance video recorded by a business
near Tocarra’s house on the night of the offense. The prosecution also introduced evidence that
defendant assaulted a prior domestic partner, Cassandra Arnold, by beating her with an
aluminum baseball bat in 2008.
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Gary Lewis, who regularly conversed with defendant while they were incarcerated in the
Wayne County Jail, testified that defendant confessed that he had killed his wife and her
boyfriend by beating them with a statue. During his testimony, he recounted several details of
the murder that he learned from his conversations with defendant, which were consistent with
other evidence admitted at trial.
II. EVIDENTIARY CLAIMS
Defendant first argues that the trial court improperly allowed the prosecutor to introduce
other act and hearsay evidence in violation of MRE 404(b) and MRE 802. We reject defendant’s
claims.
A. STANDARD OF REVIEW
Defendant preserved most of his evidentiary challenges with a timely objection at trial.
However, because he did not object to Lewis’ testimony referencing defendant’s prior assault
charges, his claim regarding that testimony is unpreserved. See MRE 103(a)(1); People v
Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001).
We “review[] for an abuse of discretion the trial court’s decision to admit or exclude
evidence.” People v Lane, 308 Mich. App. 38, 51; 862 NW2d 446 (2014). “[A] trial court abuses
its discretion when its decision falls outside the range of principled outcomes or when it
erroneously interprets or applies the law.” Id. (footnotes omitted). However, “[w]e review de
novo the preliminary questions of law surrounding the admission of evidence, such as whether a
rule of evidence bars admitting it.” Id.
Unpreserved claims of evidentiary error are reviewed for plain error affecting substantial
rights. People v Bulmer, 256 Mich. App. 33, 35; 662 NW2d 117 (2003), citing People v Carines,
460 Mich. 750, 763; 597 NW2d 130 (1999). A defendant must show that (1) an error occurred,
(2) the error was clear or obvious, and (3) “the plain error affected [the defendant’s] substantial
rights,” which “generally requires a showing of prejudice, i.e., that the error affected the outcome
of the lower court proceedings.” Carines, 460 Mich. at 763. Even if a defendant establishes a
plain error that affected his substantial rights, “[r]eversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763 (quotation marks and citation omitted;
second alteration in original).
B. APPLICABLE LAW
Evidence of a defendant’s “other crimes, wrongs, or acts” is generally inadmissible to
demonstrate the defendant’s propensity to act in conformity with those acts. MRE 404(b)(1);
People v Starr, 457 Mich. 490, 494; 577 NW2d 673 (1998). However, other acts evidence may
be admissible under MRE 404(b) for other, noncharacter purposes, such as to establish “proof of
motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,
identity, or absence of mistake or accident when the same is material[.]” MRE 404(b)(1); see
also Starr, 457 Mich. at 495-496. MRE 404(b) is “a rule of inclusion,” and the list of proper,
noncharacter purposes under the rule is nonexclusive. Starr, 457 Mich. at 496.
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In sum, evidence regarding a defendant’s prior crimes, wrongs, or acts is admissible
under MRE 404(b) if (1) it is offered for a proper, noncharacter purpose, (2) it is relevant to a
factual issue of consequence at trial, and (3) the probative value of the evidence is not
substantially outweighed by the potential for unfair prejudice under MRE 403. People v Sabin
(After Remand), 463 Mich. 43, 55-56; 614 NW2d 888 (2000), citing MRE 104(b), MRE 402,
MRE 403, MRE 404(b), and People v VanderVliet, 444 Mich. 52, 74-75; 508 NW2d 114 (1993),
amended 445 Mich. 1205 (1994). In addition, upon the admission of other acts evidence, “the
trial court, upon request, may provide a limiting instruction under MRE 105.” Sabin, 463 Mich.
at 56.
C. 2008 ASSAULT AGAINST CASSANDRA ARNOLD
Defendant contends that the prosecution did not justify the admission of evidence
concerning his 2008 assault against Cassandra Arnold by demonstrating that the evidence was
relevant to a proper nonpropensity purpose under MRE 404(b)(1). In raising this claim,
defendant fails to recognize that the trial court admitted this evidence after the parties disputed
whether the evidence was admissible under either MCL 768.27b and MRE 404(b). Because the
evidence was, in fact, admissible under MRE 768.27b, we reject defendant’s MRE 404(b)
claim.1
MCL 768.27b(1) provides:
Except as provided in subsection (4), in a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant’s commission of other acts of domestic violence is admissible for any
purpose for which it is relevant, if it is not otherwise excluded under Michigan
rule of evidence 403.
The statute’s definition of “domestic violence” includes acts “[c]ausing or attempting to cause
physical or mental harm to a family or household member.” MCL 768.27b(5)(a)(i). The term
“family or household member” includes “[a]n individual with whom the person has or has had a
child in common.” MCL 768.27b(5)(b)(iii).
“Evidence is relevant if it has any tendency to make the existence of a fact that is of
consequence to the action more probable or less probable than it would be without the evidence.”
Aldrich, 246 Mich. App. at 114, citing MRE 401. “Under this broad definition, evidence is
admissible if it is helpful in throwing light on any material point.” Aldrich, 246 Mich. App. at
114. Notably, unlike MRE 404(b)(1), which precludes the admission of other acts evidence for
the purpose of proving a defendant’s propensity to engage in the charged conduct, MCL
768.27b(1) permits the admission of evidence “for any purpose for which it is relevant,” subject
only to exclusion under MRE 403. Thus, MCL 769.27b(1) permits the introduction of prior bad
acts of domestic violence to prove propensity for such conduct, People v Railer, 288 Mich. App.
1
Likewise, for this reason, it is not necessary to consider defendant’s arguments with regard to
MRE 404(b).
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213, 219-220; 792 NW2d 776 (2010), “because a full and complete picture of a defendant’s
history tends to shed light on the likelihood that a given crime was committed,” People v
Cameron, 291 Mich. App. 599, 610; 806 NW2d 371 (2011) (quotation marks and citation
omitted).
Defendant’s 2008 assault against Arnold, the mother of two of defendant’s children, was
admissible under MCL 768.27b(1) because it was highly relevant to defendant’s propensity to
violently assault former domestic partners. Although defendant argues that the incident did not
share a “special quality” with the double homicide for purposes of proving his identity as the
perpetrator of the murders, MCL 768.27b only requires that the evidence be relevant. Relevance
in this context does not require proof of a common “special quality.” See MRE 401; Aldrich,
246 Mich. App. at 114.
The circumstances surrounding Tocarra’s and Thomas’ murders suggest that the
perpetrator acted in a violent and frenzied rage. There was no evidence of a prosaic motive for
these crimes, such as theft, as nothing of value was taken from the home. The victims were
beaten repeatedly with a blunt object, and the brutality of the assault suggests that the perpetrator
was motivated by powerful emotions. The victims’ nudity further indicates that this was a crime
of passion. There was no evidence suggesting that Tocarra or Thomas had any other enemies
who would want to hurt or kill them, and defendant was the only known person in their lives
who harbored hatred, possessiveness, or jealousy toward them. Evidence that defendant
previously exhibited rage against a former domestic partner by violently beating her with a bat
made it more probable that he had the capacity and motivation to commit the violent offenses
against Tocarra and Thomas. See MRE 401; Aldrich, 246 Mich. App. at 114.
Moreover, the probative value of this evidence was not substantially outweighed by its
prejudicial effect. “The ‘unfair prejudice’ language of MRE 403 refers to the tendency of the
proposed evidence to adversely affect the objecting party’s position by injecting considerations
extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.”
Cameron, 291 Mich. App. at 611 (quotation marks and citations omitted). During her testimony,
Arnold merely stated the basic facts of the assault. Her statements were not presented in a
sensationalized or dramatic manner that was likely to inflame the jurors’ passions—and cause
the jurors to attribute undue weight to the evidence—or inject considerations separate from the
merits of the case. Additionally, the presentation of Arnold’s testimony after the jury already
had heard all of the evidence related to the charged homicides avoided any danger that the jury
would be inclined to believe that defendant was guilty before the facts of the homicides were
revealed. These circumstances mitigated the potential prejudicial effect of the evidence in
relation to its significant probative value.
Thus, the trial court did not abuse its discretion when it admitted evidence regarding the
assault under MCL 768.27b.
D. DECEMBER 31, 2013 ARGUMENT
Defendant also argues that evidence of his argument with Tocarra on December 31, 2013,
was inadmissible under MRE 404(b)(1). Again, we disagree.
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The argument between Tocarra and defendant, and the specific threats that defendant
made during the argument, were relevant to defendant’s motive and intent, which are recognized
purposes for admitting evidence under MRE 404(b)(1). Starr, 457 Mich. at 495-496. The threats
made the existence of defendant’s motive and intent to harm Tocarra—given his hostility toward
her shortly before the commission of the offense—more probable than it would have been
without the evidence. See Aldrich, 246 Mich. App. at 114. “Although motive is not an essential
element of the crime, evidence of motive in a prosecution for murder is always relevant.” People
v Unger, 278 Mich. App. 210, 223; 749 NW2d 272 (2008). See also People v Hoffman, 225 Mich
App 103, 109-110; 570 NW2d 146 (1997) (concluding that evidence of the defendant’s hatred of
women and previous acts arising from that hostility were “relevant and material to [the]
defendant’s motive for his unprovoked, cruel, and sexually demeaning attack on his victim”).
Defendant contends that the verbal altercation was not relevant to motive because the
December 31 incident was nonviolent and therefore dissimilar to the homicides. However, prior
acts offered to prove motive do not require the same degree of similarity as when prior acts are
offered to prove a common pattern or scheme of conduct. See Sabin, 463 Mich. at 63-68; People
v Watson, 245 Mich. App. 572, 574-579; 629 NW2d 411 (2001) (holding that the defendant’s
nude photograph of the victim was admissible to prove the defendant’s motive, notwithstanding
the fact that the acts of taking and possessing a nude photograph are different in character from
the physical contact and sexual penetration involved in a charge of first-degree criminal sexual
conduct). Here, defendant demonstrated a motive to kill Tocarra when he angrily confronted
her, after kicking in the side door of her house, and threatened to harm her if she reported his
conduct to his probation agent. The fact that defendant did not physically harm Tocarra during
this altercation does not detract from the relevance of his nonphysical conduct in demonstrating
his motivation to harm her.
We also note that defendant’s conduct in forcefully entering Tocarra’s house through the
side door during the December 31 argument was relevant to show that he knew that the side door
was a viable means of entry to the home. Defendant argues that this fact was not relevant
because there was no evidence that the perpetrator entered the house through the side door and
because others, including witnesses, also knew about the side door. However, Sergeant Kevin
Wight testified that he observed footprints in the snow leading to and from the side door, but not
the front door.
The trial court did not abuse its discretion in admitting the evidence of defendant’s
December 31 argument with Tocarra.
E. OCTOBER 2013 PROBATION VIOLATION
Defendant also challenges the admissibility of testimony by his probation officer, Jamal
Womble, regarding the probation violation that he issued against defendant in October 2013. He
argues that this testimony was inadmissible prior-bad-act evidence under MRE 404(b)(1) and
inadmissible hearsay. We disagree.
Womble testified that after speaking with Tocarra in October 2013, he issued a warrant
for a violation of probation against defendant on the basis of his threatening and intimidating
behavior toward Tocarra. However, Womble did not testify that defendant actually threatened
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and intimidated Tocarra; he only testified that he issued a warrant for a violation of probation
after his conversation with Tocarra. Likewise, Womble did not indicate that he had personal
knowledge of whether defendant actually engaged in such conduct. Rather, his testimony was
offered for the permissible purpose of proving defendant’s motive for the homicide, i.e., his
animosity toward Tocarra given her previous contact with his probation agent. See MRE
404(b)(1); Starr, 457 Mich. at 495-496; Unger, 278 Mich. App. at 223. This testimony was
especially relevant to defendant’s motive to kill Tocarra given his previous threat to harm her if
she reported his conduct to his probation agent.
Further, contrary to defendant’s claim, Womble’s testimony was not inadmissible
hearsay. “Under Michigan’s evidentiary rules, ‘hearsay’ is an unsworn, out-of-court statement
that is ‘offered in evidence to prove the truth of the matter asserted.’ ” People v Musser, 494
Mich. 337, 350; 835 NW2d 319 (2013), quoting MRE 801(c). Generally, “[h]earsay is not
admissible except as provided by [the Michigan Rules of Evidence].” MRE 802. Notably,
though, “[i]f . . . the proponent of the evidence offers the statement for a purpose other than to
prove the truth of the matter asserted, then the statement, by definition, is not hearsay.” Musser,
494 Mich. at 350.
The prosecutor did not ask Womble to repeat Tocarra’s statement. Instead, she asked,
“As a result of speaking to her, what action did you take?” When Womble stated that Tocarra
“came in and indicated that he--,” the prosecutor and the trial court interrupted Womble and
cautioned him not to repeat Tocarra’s statements. Additionally, during his testimony, the
prosecutor never elicited testimony regarding the events in October 2013 that caused Tocarra to
obtain a PPO and caused Womble to issue the warrant for a probation violation. Thus,
Womble’s testimony was not hearsay. See Musser, 494 Mich. at 350.
Even assuming arguendo that Womble effectively repeated the content of Tocarra’s
report by stating that he issued a violation against defendant “for threatening and intimidating
behavior,” his testimony still was not inadmissible hearsay because Womble’s testimony was not
offered to prove what happened between Tocarra and defendant, but to explain why he issued the
probation violation. See People v Chambers, 277 Mich. App. 1, 11; 742 NW2d 610 (2007)
(stating that a statement offered to show why a police officer took certain action is not hearsay).
Thus, we reject defendant’s claim.
F. TESTIMONY REGARDING OTHER UNCHARGED ASSAULTS
Defendant’s fourth claim of evidentiary error arises from the following testimony
provided by Lewis, a fellow prisoner at the Wayne County Jail, on direct examination by the
prosecutor:
Q. And did he indicate anything in the June 7th conversation about his ex-
wife? I think you said that he?
A. He grabbed her. When he hit the guy, she was trying to leave. He
said, this all happened June 7th. She was trying to go. He grabbed her in her
throat, and I said, well, if you and him arguing that’s your ex-wife, why did you
grab her? He said because he was on probation.
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Q. Right?
A. And he said all his charges was assault charges which was six to eight
charges on his record and they was [sic] all assaults and he said he was on
probation now for assaults, so he couldn’t let her leave but he said he hit her and
he said he just lost control and he kept hitting them. I said well all this blood
you’re hitting them with something, I mean, what happened to all the blood.
Thomas said, “I cleaned up”, you know, he cleaned up and was out of there in
about 45 minute [sic]. I think what he said it something like about 8:00 or
something when he left. It was 8:00 and he said he left about 40, 45 minute. He
got two motorcycles. He said he had the 2005 Harley and the 2008 Harley but it
was snow, cold so he didn’t ride the Harleys. He rode her car. [Emphasis added.]
Because defendant did not object to the challenged testimony, our review of this claim is limited
to plain error affecting defendant’s substantial rights. Bulmer, 256 Mich. App. at 35.
The challenged testimony was not responsive to any question asked by the prosecutor,
and there is no indication that the prosecutor anticipated that Lewis would reveal defendant’s
statements to him regarding his criminal record in the context of discussing defendant’s ex-wife.
“[U]nresponsive answers . . . are generally not considered prejudicial errors unless egregious or
not amenable to a curative instruction.” People v Mahone, 294 Mich. App. 208, 213; 816 NW2d
436 (2011) (quotation marks and citation omitted). See also People v Haywood, 209 Mich. App.
217, 228; 530 NW2d 497 (1995) (“[A]n unresponsive, volunteered answer to a proper question is
not grounds for the granting of a mistrial.”); People v Burch, 170 Mich. App. 772, 776; 428
NW2d 772 (1988) (finding that plain error had not been shown when an unresponsive and brief
remark did not deprive the defendant of a fair trial); People v Measles, 59 Mich. App. 641, 643;
230 NW2d 10 (1975) (“An unresponsive answer to a proper question is not usually error.”).
Moreover, although Lewis’ testimony referenced defendant’s prior assault history, it did
so in the context of describing defendant’s explanation for why “he couldn’t let [Tocarra] leave.”
Thus, the relevance of this testimony did not involve an impermissible propensity purpose.
Instead, the testimony was probative of why defendant attacked Tocarra. As such, it was
relevant to the issues of motive and intent, both of which are recognized purposes for admitting
evidence under MRE 404(b)(1).
Under these circumstances, defendant has not established that Lewis’ testimony
constituted a plain error affecting his substantial rights.
G. UNFAIR PREJUDICE UNDER MRE 403
Lastly, defendant contends that the trial court abused its discretion in admitting the
aforementioned evidence because all of it was unfairly prejudicial. See Sabin, 463 Mich. at 55-
56. We disagree.
In support of this claim, defendant merely reiterates his previous arguments in order to
contend that each piece of evidence had a “slight” probative value and a “great” prejudicial
effect given the likelihood that the jury would conclude from the testimony that defendant had a
“general propensity for assaulting people.” For the reasons previously explained, we reject
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defendant’s claims. Especially in light of the significant probative value of this evidence to
prove defendant’s motive and intent, its probative value was not outweighed by the danger of
unfair prejudice. See MRE 403.
The trial court did not abuse its discretion in admitting the other-acts evidence under
MRE 404(b) and MCL 769.27b(1).
III. WITNESS COMPETENCY
Defendant argues that the trial court erred in finding Lewis competent to testify because
his “testimony was so inherently incredible that the record shows that Lewis did not have the
capacity and sense of obligation to testify truthfully.” We disagree.
A. STANDARD OF REVIEW
Because defendant failed to raise this issue below,2 it is unpreserved and reviewed for
plain error affecting his substantial rights. See Carines, 460 Mich. at 762-763, 774.
B. ANALYSIS
MRE 601 provides:
Unless the court finds after questioning a person that the person does not
have sufficient physical or mental capacity or sense of obligation to testify
truthfully and understandably, every person is competent to be a witness except as
otherwise provided in these rules.
“All witnesses are presumed to be competent to testify.” Watson, 245 Mich. App. at 583. “The
test of competency is thus whether the witness has the capacity and sense of obligation to testify
truthfully and understandably.” Id.
Although defendant correctly recognizes that assessing a witness’s credibility is normally
a function for the jury, Musser, 494 Mich. at 349, he argues that Lewis’ bizarre statements, such
as his testimony that he has been a police informant since he was 20 years old, revealed that he
lacked the capacity and sense of obligation to testify truthfully. In support of his claim,
defendant also cites erroneous factual information in Lewis’ testimony, such as his inaccurate
reference to defendant’s wife as “Flo.” Accordingly, the crux of defendant’s claim is that the
problems with Lewis’ credibility were so extreme that the trial court should have concluded from
his testimony that Lewis was incompetent to testify.
Although defendant focuses on specific aspects of Lewis’ testimony in challenging his
competency, a witness’s competency under MRE 601 is a threshold issue that should be
2
During trial, defense counsel moved for an adjournment to allow him to interview Lewis before
he testified, but defense counsel did not object to Lewis’ testimony on incompetency grounds.
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determined before a witness testifies. See Watson, 245 Mich. App. at 583 (stating that when a
child witness is found competent to testify, “a later showing of the child’s inability to testify
truthfully reflects on credibility, not competency.”) (quotation marks and citations omitted).
Nonetheless, even in considering the content of Lewis’ testimony, we reject defendant’s claims.
Although Lewis’ statements concerning his experiences and expertise as a self-styled freelance
prosecutorial investigator were at times bizarre and tended to suggest delusions of grandeur, this
testimony does not demonstrate an insufficient capacity or sense of obligation to testify truthfully
and understandably. A witness’s delusional tendencies may be a proper subject of cross-
examination, but they are generally insufficient to overcome the presumption of competency.
Cf. People v Flowers, 222 Mich. App. 732, 737 n 4; 565 NW2d 12 (1997) (“The official comment
to FRE 601, which [was previously] identical to our MRE 601, states: ‘A witness wholly without
capacity is difficult to imagine. The question is one particularly suited to the jury as one of
weight and credibility, subject to judicial authority to review the sufficiency of the evidence.’ ”).
Likewise, any factual inaccuracies inherent in Lewis’ rendition of defendant’s confession were
matters for the jury to consider in its evaluation of the reliability and credibility of his testimony,
but were not reasons for questioning his capacity to testify truthfully and understandably. Cf.
Watson, 245 Mich. App. at 583.
Moreover, in reviewing defendant’s claim for plain error, see Carines, 460 Mich. at 762-
763, 774, it is significant that much of Lewis’ testimony about defendant’s confession was
substantially corroborated by other witnesses’ testimony as well as other evidence. For example,
according to Lewis, defendant argued with his ex-wife or estranged wife about parenting time
with their son. Defendant told Sergeant Russell that he and Tocarra had argued about parenting
time. Lewis testified that defendant received a text message from his live-in girlfriend who was
unaware that defendant had left the house. This was consistent with the testimony of defendant’s
girlfriend that she called defendant when she awoke and discovered that he was not with her.
According to Lewis, defendant said that his victim lived near an Auto Zone or “something like a
car place” that had surveillance cameras. Tocarra’s house was adjacent to an Auto Zone that had
surveillance cameras. Additionally, Lewis testified that defendant said that he found his wife
with another man, that he killed both of them, and that he was on probation for a prior offense,
all of which was consistent with other evidence presented at trial. Lewis also provided additional
details regarding the murders that were consistent with other witnesses’ testimony. Although
Lewis’ statements were not completely consistent with the evidence—as he provided an
incorrect name for Tocarra, there was no evidence that a statue was used as the murder weapon,
and Tocarra’s son, not a family member of Thomas, discovered the bodies—these discrepancies
were matters for the jury to consider in evaluating Lewis’ credibility.3 They do not establish that
Lewis was unable to distinguish the truth.
3
Similarly, in the context of a defendant’s claim that a jury’s verdict was against the great
weight of the evidence, we generally defer to the jury’s credibility determinations unless the
testimony “was so far impeached that it was deprived of all probative value or that the jury could
not believe it, or [it] contradicted indisputable physical facts or defied physical realities[.]”
People v Lemmon, 456 Mich. 625, 643-647; 576 NW2d 129 (1998) (quotation marks and citation
omitted). As such, “[i]n general, conflicting testimony or questions concerning the credibility of
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The evidence in the record does not rebut the presumption that Lewis was competent to
testify. Defendant has failed to establish a plain error affecting his substantial rights.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence presented at trial was insufficient to establish
that he committed the murders.4 We disagree.
A. STANDARD OF REVIEW
This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Henderson, 306 Mich. App. 1, 8-9; 854 NW2d 234 (2014). “We examine the evidence in a light
most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” People v Dunigan, 299 Mich. App. 579, 582; 831 NW2d 243
(2013) (quotation marks and citation omitted). “Circumstantial evidence and reasonable
inferences arising [from the evidence] may constitute proof of the elements of [a]
crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010). This Court’s review
is deferential, as “[w]hen assessing a challenge to the sufficiency of evidence, the trier of fact,
not the appellate court, determines what inferences may be fairly drawn from the evidence and
the weight to be accorded those inferences.” People v Malone, 287 Mich. App. 648, 654; 792
NW2d 7 (2010), overruled in part on other grounds by People v Jackson, 498 Mich. 246, 268 n 9
(2015). See also People v Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000).
“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” Bennett, 290 Mich. App. at 472. Defendant does not contend
that any of the elements of first-degree murder were not proven in this case. He only argues that
there was insufficient evidence to prove that he was the perpetrator. See People v Yost, 278
Mich. App. 341, 356; 749 NW2d 753 (2008) (“[I]t is well settled that identity is an element of
every offense.”).
Defendant emphasizes that there is no physical evidence linking him to the homicides,
and he dismisses the circumstantial evidence presented by the prosecution as “weak and
inconclusive.” Contrary to his characterization of the record, the prosecution presented
substantial circumstantial evidence from which a reasonable jury could conclude beyond a
reasonable doubt that he was the perpetrator of the homicides. See Bennett, 290 Mich. App. at
465.
the witnesses are not sufficient grounds for granting a new trial.” People v Brantley, 296 Mich
App 546, 553; 823 NW2d 290 (2012).
4
In particular, defendant claims that “[t]he evidence, absent the incompetent testimony of Gary
Lewis, was not sufficient to identify the [d]efendant as the perpetrator of the murders[.]” As
previously discussed, we reject defendant’s claims regarding Lewis’ purported incompetency.
Thus, we decline his invitation to “throw out the testimony of Gary Lewis and find that the
remaining evidence was not sufficient[.]”
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From the evidence discussed supra, a rational jury could reasonably infer that defendant
had the motive and capacity to kill Tocarra and Thomas, that defendant used his girlfriend’s
Grand Marquis to drive to the victims’ house when the crime was committed, that defendant
forcibly entered the house through the side door, and that he killed Tocarra and Thomas by
beating them with a two-by-four board with protruding nails, which was discovered at the scene.
See Bennett, 290 Mich. App. at 472.
Defendant’s conduct after the homicides further supports the jury’s finding of guilt.
Defendant tried to evade the police and enter the house while the police were processing the
crime scene. He also “deflected” Sergeant Russell’s questions by volunteering information
about his sexual contacts with Tocarra and his girlfriend. During the interview, he did not ask
questions about Tocarra’s murder or suggest any suspects. More significantly, he confessed to
Lewis that he committed the murders, and Lewis’ trial testimony accurately described several
details related to the homicides and the subsequent court proceedings. Although Lewis’
testimony included some factual inaccuracies, the credibility of Lewis’ testimony was for the
jury to evaluate. See Unger, 278 Mich. App. at 222 (“[W]e will not interfere with the jury’s
determinations regarding the weight of the evidence and the credibility of the witnesses.”).
Viewed in a light most favorable to the prosecution, the totality of the evidence was
sufficient to establish beyond a reasonable doubt defendant’s identity as the perpetrator. See
Dunigan, 299 Mich. App. at 582.
V. PROSECUTORIAL MISCONDUCT
Lastly, defendant argues that the prosecutor purposefully offered inadmissible evidence
and asked objectionable questions in a bad-faith effort to prejudice the jury against him, which
had a cumulative effect of violating his right to a fair trial. We reject defendant’s claims.
A. STANDARD OF REVIEW
Although defendant objected to some of the evidence that he cites as the basis of his
prosecutorial misconduct claim, he never objected to the prosecutor’s conduct during the trial.
Accordingly, his claim is unpreserved and reviewed for plain error affecting his substantial
rights. Bennett, 290 Mich. App. at 475-476.
B. ANALYSIS
First, defendant’s claim of prosecutorial misconduct is largely based on the evidence
presented regarding his previous assault against Arnold, his threatening and intimidating conduct
against Tocarra, and Lewis’ reference to his history of unspecified assaults. As previously
discussed, evidence concerning defendant’s prior misconduct against Arnold and Tocarra was
admissible, and the prosecutor was not responsible for Lewis’ unresponsive reference to
defendant’s prior assaults. Likewise, Womble’s testimony that he issued a warrant for a
probation violation against defendant was permissible.
Additionally, testimony by Tocarra’s sister that Tocarra obtained a PPO against
defendant was relevant and admissible for the same reasons discussed supra, i.e., to demonstrate
the animosity between Tocarra and defendant in order to prove defendant’s motive and intent.
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See MRE 404(b); Unger, 278 Mich. App. at 223; Aldrich, 246 Mich. App. at 114, citing MRE 401.
“[P]rosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence.”
People v Noble, 238 Mich. App. 647, 660; 608 NW2d 123 (1999). Thus, these claims of
misconduct lack merit.
Defendant also argues that the prosecutor committed misconduct by eliciting testimony
from Sergeant Wight that defendant refused to cooperate with providing a DNA sample. Before
the prosecutor called Wight to the stand, defendant moved to preclude testimony regarding this
incident on relevancy grounds, but the trial court overruled the objection. It is not improper for a
prosecutor to rely on a court’s evidentiary ruling, regardless of whether the ruling was correct.
People v Blackmon, 280 Mich. App. 253, 270 n 7; 761 NW2d 172 (2008). Nevertheless, at the
end of the trial, the court instructed the jury that it should disregard any testimony regarding
defendant’s refusal to provide a DNA sample. Even if we assume, arguendo, that the
prosecutor’s elicitation of this evidence was improper, any prejudice was cured by the trial
court’s instruction. See Unger, 278 Mich. App. at 240-241; Watson, 245 Mich. App. at 586.
In addition, defendant argues that the prosecutor acted improperly by allowing Tocarra’s
son and Tocarra’s mother to testify that they “knew” that defendant killed Tocarra, and by
allowing Tocarra’s mother to call defendant a liar and a psychopath. However, the prosecutor
never elicited any testimony from Tocarra’s son indicating that he had personal knowledge that
defendant killed the victims. Rather, Tocarra’s son specifically testified that he told the police
that he believed that defendant was the perpetrator, and that he formed this belief solely based on
defendant’s hostility toward Tocarra a few days earlier, a fact that was clearly and permissibility
established at trial.
Likewise, the prosecutor did not elicit the testimony from Tocarra’s mother that she knew
that defendant was involved in the murders, that defendant lied when she spoke to him on the
phone on January 5, or that defendant was a psychopath. In each instance, her mother’s
testimony was unresponsive to the prosecutor’s questions or interrupted the prosecutor’s
questions. Similarly, Tocarra’s mother also accused defendant of lying and stated that she
“knew” that defendant was involved in the murders during defense counsel’s cross-examination
of her regarding the phone calls that she made to defendant on January 5. The trial court
repeatedly directed Tocarra’s mother to answer the questions asked, but she continued to
interject her comments on these matters during the prosecutor’s redirect examination—as well as
during defense counsel’s recross-examination—even though both the prosecutor and the trial
court reminded her to wait to respond until after a question had been asked and to only answer
the question asked. “Unresponsive answers from witnesses are generally not prosecutorial
error,” and there is no indication that the prosecutor knew in advance that Tocarra’s mother
would make those statements. People v Jackson (On Reconsideration), 313 Mich. App. 409, ___;
___ NW2d ___ (2015) (Docket No. 322350); slip op at 8.
Because defendant has not established any individual errors, we reject his claim that the
cumulative effect of these purported errors violated his right to a fair trial. See Unger, 278 Mich
App at 258.
VI. CONCLUSION
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Defendant has failed to establish that any of his claims of error on appeal warrant
reversal.
Affirmed.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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