People of Michigan v. Page Cheatom ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 29, 2024
Plaintiff-Appellee,
v No. 366466
Wayne Circuit Court
PAGE CHEATOM, LC No. 21-002405-01-FC
Defendant-Appellant.
Before: MURRAY, P.J., and BORRELLO and MARIANI, JJ.
PER CURIAM.
Defendant appeals by leave granted1 her jury trial convictions for carrying a concealed
weapon, MCL 750.227; assault with a dangerous weapon, MCL 750.82; malicious destruction of
a building $200 or more, but less than $1,000, MCL 750.380(4); and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. We affirm.
The events underlying defendant’s convictions took place on November 8, 2020. At trial,
Nakia Perry testified that, on that day, she and defendant were involved in an argument that took
place on social media. According to Perry, minutes later, she heard a car horn honking outside her
house. As she looked out the front door of her house, Perry saw defendant get out of a tan Dodge
Journey and approach the house with a gun. Perry testified that defendant banged on the front
window of Perry’s house with the butt of the gun until the window shattered and then drove away.
Perry then went out to her front porch and called 911. Perry further testified that, while she was
still on the phone, defendant drove by the house again and fired multiple gunshots at the house as
she passed, breaking another window. Police arrived at Perry’s house shortly thereafter but no
shell casings were recovered from the scene.
Perry’s next-door neighbor testified at trial that, on November 8, 2020, he was in his
backyard when he heard a car horn honking and saw that the noise was coming from a light blue
1
People v Cheatom, unpublished order of the Court of Appeals, entered October 10, 2023 (Docket
No. 366466).
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van. He testified that he heard a car door slam, screaming and yelling, glass breaking, and a door
slam, and then saw the light blue van speed off down the road. A little later, he heard three
gunshots and rushed into his house. He testified that he saw the same light blue van stopped along
the curb, facing the opposite direction than it had previously sped off in, but that he never saw the
driver.
Detroit Police Department (DPD) Officer Nicholas Wagner testified at trial that members
of a special operations team executed a search warrant at defendant’s house a few days later.
Officer Brian Creech testified that officers found a nine-millimeter handgun, a magazine, and
ammunition in defendant’s house. Officer Thomas Love testified that he, alongside Sergeant
Steven Kue,2 searched a tan Dodge that was parked at defendant’s house. According to Officer
Love, while he was searching the passenger side of the car, Sergeant Kue searched the driver’s
side where he discovered a nine-millimeter shell casing. Sergeant Kue called Officer Love over
to the driver’s side of the car and pointed out the shell casing under the driver’s seat. Officer Love
then retrieved the casing. The sequence was recorded on Officer Love’s body camera, but Officer
Love did not mention Sergeant Kue in his police report. Officer Deandre Williams, the officer in
charge of the case, testified that he did not see Sergeant Kue’s name anywhere in the discovery
packet and that Sergeant Kue did not create his own police report.
Defense counsel then made an oral motion for a mistrial, arguing that there had been a
“Brady/Giglio violation.” Defense counsel argued that Sergeant Kue had a history of allegations
of police misconduct and that he was the subject of multiple DPD internal investigations. Defense
counsel argued that the prosecution suppressed Sergeant Kue’s involvement in the execution of
the search warrant, that evidence of Sergeant Kue’s involvement was exculpatory because
defendant could use Sergeant Kue’s record to raise a question as to whether the shell casing
discovered in the Dodge had been planted there, and that the evidence was material because the
shell casing was the sole piece of evidence connecting the gun found in defendant’s house to the
vehicle. The prosecution argued that there was not a Brady violation because Sergeant Kue did
not create a police report and there were no Brady/Giglio-related materials or information
regarding Sergeant Kue for the prosecution to produce, and that defense counsel had offered
nothing of adequate substance to support his Brady claim. The trial court denied the motion,
explaining that the prosecution was not “using [Sergeant Kue] to make their case” and “[t]here’s
nothing to suggest that evidence was hidden, anything was suppressed.”
The jury acquitted defendant of eight charges: assault with intent to murder, MCL 750.83;
discharge of a firearm in or at a building, MCL 750.234b(1); discharge of a firearm from a vehicle,
MCL 750.234a(1)(a); assault with intent to do great bodily harm, MCL 750.84; and four felony-
firearm charges predicated on the aforementioned offenses. The jury found defendant guilty of
the remaining offenses: carrying a concealed weapon, assault with a dangerous weapon, malicious
destruction of a building, and one count of felony-firearm. Defendant now appeals, arguing that
the trial court erred by denying her motion for a mistrial based on the alleged Brady violation.
2
The trial transcripts spell the sergeant’s first name as “Steven,” though it appears the correct
spelling may be “Stephen.”
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We review a trial court’s denial of a motion for a mistrial for an abuse of discretion. People
v Dickinson, 321 Mich App 1, 18; 909 NW2d 24 (2017). An abuse of discretion occurs when the
trial court renders a decision that falls outside the range of principled decisions. People v
Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016). “Underlying questions of law are
reviewed de novo, while a trial court’s factual findings are reviewed for clear error.” Id. “[T]his
Court reviews due process claims, such as allegations of a Brady violation, de novo.” Id.(quotation marks and citation omitted).
The United States Supreme Court held in Brady v Maryland, 373 US 83, 87; 83 S Ct 1194;
10 L Ed 2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” “When the reliability
of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence
affecting credibility falls within this general rule.” Giglio v United States, 405 US 150, 154; 92 S
Ct 763; 31 L Ed 2d 104 (1972) (quotation marks and citation omitted). Accordingly, to
demonstrate a Brady violation, “[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must have ensued.” People v Chenault,
495 Mich 142, 149-150; 845 NW2d 731 (2014) (quotation marks and citation omitted). “Stated
differently, the components of a ‘true Brady violation,’ are that: (1) the prosecution has suppressed
evidence; (2) that is favorable to the accused; and (3) that is material.” Id. at 150.
Defendant argues that the prosecution committed a Brady violation in two ways: (1) by
suppressing Sergeant Kue’s involvement in the investigation, and (2) by failing to call Sergeant
Kue as a witness. We disagree. While Sergeant Kue may well have a troubling history, defendant
has failed to demonstrate a Brady violation based upon it in this case. To start, defendant has
failed to explain how the prosecution suppressed evidence simply by not calling Sergeant Kue as
witness. Defendant points to neither record evidence nor legal authority to substantiate the notion
that the prosecution in this case may have had some obligation to call Sergeant Kue as a witness
or that its failure to do so amounted to or resulted in the suppression of evidence. It is well
established that a party “may not simply announce a position and leave it to this Court to make the
party’s arguments and search for authority to support the party’s position.” Seifeddine v Jaber,
327 Mich App 514, 519; 934 NW2d 64 (2019).
Defendant’s argument that the prosecution suppressed evidence of Sergeant Kue’s
involvement in the case fares slightly better. The government is responsible for evidence within
its control, including evidence unknown to the prosecution. Kyles v Whitley, 514 US 419, 437;
115 S Ct 1555; 131 L Ed 2d 490 (2015). “[E]ven though due process does not generally require
the prosecution to seek and find exculpatory evidence or to search for evidence that will support a
defendant’s case, the individual prosecutor does have a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case, including the police.”
Dimambro, 318 Mich App at 213 (cleaned up). There is some evidence in the record to support
defendant’s contention that the prosecution, either willfully or inadvertently, suppressed Sergeant
Kue’s involvement. MCL 767.40a(1) states that the prosecution “shall attach to the filed
information a list of all witnesses known to the prosecuting attorney who might be called at trial
and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement
officers.” While it is unclear from the record to what extent the prosecution complied with MCL
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767.401a(1), Sergeant Kue’s name was not on the prosecution’s witness list and it appears to be
undisputed that he was not named in any police report documenting the execution of the search
warrant. And Officer Williams, the officer in charge, testified that he had not seen Sergeant Kue’s
name listed anywhere in the discovery packet. The limited record before us thus provides some
support for the argument that the prosecution was obligated to disclose Sergeant Kue’s identity
and role in the investigation, but failed to do so.
Even assuming, however, that the record adequately supports defendant’s contention that
the prosecution suppressed Sergeant Kue’s involvement, defendant has not met her burden of
establishing the remaining two elements of a Brady violation: favorability and materiality.
“Evidence is favorable to the defense when it is either exculpatory or impeaching.” Chenault, 495
Mich at 150. Defendant argues that evidence of Sergeant Kue’s involvement in the search would
have been favorable to her defense because she would have been able to “bring[] to light, for the
jury to hear, his history of planting evidence.” Both before the trial court and on appeal, however,
defendant has failed to adequately substantiate that position—to identify, for instance, the specific
aspects of Sergeant Kue’s record at the time of trial that defendant would have sought to use for
that purpose, or to explain in any particular detail how that information would have been admitted
and used at trial.3
Nor has defendant shown that the evidence would have been material. As our Supreme
Court has explained:
To establish materiality, a defendant must show that there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. This standard does not require
demonstration by a preponderance that disclosure of the suppressed evidence would
have resulted ultimately in the defendant’s acquittal. The question is whether, in
the absence of the suppressed evidence, the defendant received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. In assessing the
materiality of the evidence, courts are to consider the suppressed evidence
collectively, rather than piecemeal. [Id. at 150-151 (cleaned up).]
Defendant argues that the shell casing found by Sergeant Kue is the sole piece of evidence linking
the bullets fired at Perry’s house to the gun found in defendant’s house. But again, defendant has
not substantiated or explained in any meaningful detail how she would have actually made use of
Sergeant Kue’s history at trial, and even assuming the jury could have been made aware of that
history in some form or another, defendant has offered nothing but speculation to connect that
history to the shell casing in this case. Furthermore, there was other circumstantial evidence
offered at trial, unrelated to the shell casing or Sergeant Kue, in support of the allegation that
defendant fired gunshots at Perry’s house. And finally, regardless of its import to that allegation,
3
In her appellate brief, defendant cites to an online news article regarding Sergeant Kue’s troubling
track record, but that article is from 2023—after defendant’s trial—and defendant fails to point to
any evidence in the record of this case that substantiates the article’s content or her contention that
the suppressed evidence would have been favorable to her defense.
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the shell casing was only relevant to defendant’s convictions insofar as the jury found her guilty
of offenses stemming from the firing of the gun at Perry’s house. It had no particular bearing on
the offenses stemming from the allegation that defendant smashed in Perry’s window with the butt
of a gun. The distinction between those two alleged acts played out in the jury’s verdict. The jury
acquitted defendant of each of the offenses which could only be supported by a finding that
defendant fired the gun. Indeed, the reasonable inference from the jury’s decision is that it was
unconvinced by the proofs offered at trial regarding the shooting and convicted defendant solely
for breaking Perry’s window with the butt of the gun. Defendant has offered nothing to suggest
otherwise, or to substantiate the notion that the verdict the jury reached is not worthy of confidence.
See Chenault, 495 Mich at 150-151. On this record, we cannot conclude that, as a result of any
suppression of Sergeant Kue’s involvement in this case, defendant did not receive a fair trial. Id.Based on the foregoing, we do not see reversible error in the trial court’s denial of
defendant’s motion for a mistrial based on the alleged Brady violation. Defendant’s broad
concerns regarding Sergeant Kue are well taken, but defendant has failed to demonstrate
entitlement to relief based upon them in this case.
Defendant alternatively argues that the prosecution engaged in misconduct by suppressing
Sergeant Kue’s involvement in the case. The test for prosecutorial misconduct is whether the
defendant was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d
546 (2007). Defendant, however, concedes that this prosecutorial misconduct argument is based
on the same alleged Brady violation already discussed, and we find it fails for the same
fundamental reasons. Defendant has not shown that she was denied a fair and impartial trial based
on the prosecution’s conduct in this case with respect to Sergeant Kue.
Affirmed.
/s/ Christopher M. Murray
/s/ Stephen L. Borrello
/s/ Philip P. Mariani
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