People v. Parker

584 N.W.2d 753 (1998) 230 Mich. App. 677

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Wade Sheldon PARKER, Defendant-Appellant.

Docket No. 199568.

Court of Appeals of Michigan.

Submitted February 10, 1998, at Grand Rapids. Decided July 14, 1998, at 9:00 a.m. Released for Publication October 7, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Angela Pasula, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for People.

State Appellate Defender (by Lyle N. Marshall), Lansing, and Wade S. Parker, Jackson, In Pro. Per.

Before RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK and NEFF, JJ.

PER CURIAM.

Defendant was charged with first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, possession of a firearm by a person convicted of a felony (hereinafter felon in possession), M.C.L. § 750.224f; M.S.A. § 28.241(6), and possession of a firearm during the commission of a felony (hereinafter felony-firearm), M.C.L. § 750.227b; M.S.A. § 28.424(2). Following a jury trial, defendant was convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, felon in possession, and felony-firearm. He was sentenced to consecutive terms of thirty to ninety years' imprisonment for the second-degree murder conviction and two years' imprisonment for the felony-firearm conviction. There is no indication in the record that defendant was sentenced for his felon in possession conviction. Defendant appeals as of right. We affirm, but remand for the imposition of a sentence for defendant's felon in possession conviction.

Defendant was charged in connection with the shooting death of Michael Hadley. In the early evening hours of May 15, 1995, defendant and Hadley got into a heated argument in the front yard of a home located in Benton Harbor. Defendant ultimately left the scene and walked across the street. Sometime later, defendant approached Hadley from behind as the decedent stood talking to his cousin. From close range, defendant fired four bullets into Hadley's head. Hadley died at the scene. The prosecution argued at trial that the killing was premeditated and unprovoked, whereas defendant argued that he shot Hadley in self-defense after Hadley had threatened defendant with a handgun Hadley had taken from his waistband.

Defendant first contends that the trial court erred in repeating for the jury its instructions regarding first- and second-degree murder, but failing to repeat the court's instructions regarding manslaughter and self-defense. We disagree. While the jury specifically requested supplemental instructions regarding first- and second-degree murder, no similar request was made with regard to the manslaughter and self-defense instructions. It is not an abuse of discretion for a trial court to fail to repeat instructions addressing areas not covered by a jury's specific request. People v. Bonham, 182 Mich.App. 130, 134-135, 451 N.W.2d 530 (1989); People v. Darwall, 82 Mich.App. 652, 663, 267 N.W.2d 472 (1978).

Defendant next claims that the trial court erred in not allowing David Jose to testify about an alleged prior inconsistent statement made by Nathan Magee, a witness to the shooting, who was called to testify on behalf of the prosecution. Magee testified that after defendant shot Hadley, defendant removed a nine-millimeter handgun from underneath Hadley's shirt. During cross-examination, Magee acknowledged that on the day after the shooting the police found a black ten-millimeter handgun underneath a mattress in Magee's home. However, he denied knowing either how the gun got there or who it belonged to. Magee also denied knowing Jose. We note that although defense counsel asked Magee on cross-examination if he knew Jose, counsel never directly questioned Magee about the alleged prior statement.

When the issue of Jose's testimony was raised after Magee had been cross-examined, defense counsel represented to the court that Jose would testify that Magee had told him, while the two were in the Berrien County Jail, that Hadley possessed a ten-millimeter handgun and that the gun that was found at Magee's home the day after the shooting was Hadley's gun. The trial court indicated that defendant would not be allowed to call Jose until he had first asked Magee about the alleged statement. After attempts to locate Magee to have him reappear at the trial proved unsuccessful, the trial court ruled that Jose could not be called because defendant had failed to satisfy the foundational requirements for the introduction of Jose's testimony. To the extent that the trial court's ruling was based on the assumption that Jose's testimony was not admissible until and unless Magee was first given the opportunity to explain or deny the alleged prior statement, we conclude that the trial court was mistaken. Nevertheless, the ultimate exclusion of Jose's testimony does not evidence an abuse of discretion.

The trial court maintains control of "``the order in which parties will adduce proof.'" People v. Figgures, 451 Mich. 390, 398, 547 N.W.2d 673 (1996), quoting Geders v. United States, 425 U.S. 80, 86, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). Traditionally, extrinsic evidence of a prior inconsistent statement made by a witness could not be offered until and unless the witness was presented with the inconsistent statement. The traditional approach was modified somewhat by MRE 613(b),^[1] which provides that the witness need only be provided with the opportunity to address the alleged inconsistency at some point during the trial. "The rule contains no particular sequence or timing so long as the witness has the opportunity to explain the statement." Westphal v. American Honda Motor Co., Inc., 186 Mich.App. 68, 71, 463 N.W.2d 127 (1990).

However, while under MRE 613(b) it is no longer necessary to follow the traditional foundational requirements, there is nothing in the language of the subrule that indicates that a trial court must admit extrinsic evidence of a prior inconsistent statement before the statement is presented to the witness. In fact, although MRE 613(b) allows for more flexibility, the traditional method of presenting the alleged inconsistent statement to the witness on cross-examination is still preferred. See Wammock v. Celotex Corp., 793 F.2d 1518, 1522 (C.A.11, 1986) (observing that FRE 613(b), which is identical to MRE 613(b), "does not supplant the traditional method of confronting a witness with his inconsistent statement prior to its introduction into evidence as the preferred method of proceeding"). In circumstances like those present here, where the prior statement was not "given under oath subject to the penalty of perjury," MRE 801(d)(1)(A), the traditional method helps to assure that the prior statement will not be incorrectly interpreted by a jury as substantive evidence.^[2]

The record makes clear that defendant knew about the prior inconsistent statement before Magee was called to testify. Even though Magee did not have to be confronted with the prior statement before Jose could be called to testify, we conclude that under the circumstances the trial court did not abuse its discretion in ruling that the traditional sequence would be followed. Further, because Magee could not subsequently be located and consequently would not be given the opportunity to explain the prior statement, the exclusion of Jose's testimony altogether was not an abuse of discretion.^[3] See Wammock, supra at 1522 (observing that "where the proponent of the testimony fails to [follow the traditional method] ..., the proponent runs the risk that the court will properly exercise its discretion to not allow the admission of the prior statement").

Defendant next contends that he was erroneously convicted of felon in possession because, under the terms of M.C.L. § 750.224f; M.S.A. § 28.421(6), he was prevented from carrying a firearm for only three years after his 1988 conviction of attempted possession of cocaine, not five years as the trial court had concluded. M.C.L. § 750.224f; M.S.A. § 28.421(6) reads in pertinent part:

(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:

* * * * * *

(2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exists:

(a) The expiration of 5 years after all of the following circumstances exist:

* * * * * *

(5) As used in this section, "felony" means a violation of a law of this state, or of another state, or of the United States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law.

(6) As used in subsection (2), "specified felony" means a felony in which 1 or more of the following circumstances exist:

* * * * * *

(ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.

Defendant contends that because subsection 6(ii) does not include a reference to attempted possession of a controlled substance, his 1988 conviction does not meet the definition of a "specified felony." Rather, defendant argues that because subsection 5 specifically defines "felony" as "an attempt to violate" the laws of Michigan, his 1988 conviction is classified as a felony under the statutory scheme. Defendant claims, therefore, that he is subject to the three-year statutory limit imposed by subsection 1 and not the five-year limit imposed by subsection 2(a).

Defendant's argument is predicated on an erroneous reading of M.C.L. § 750.224f; M.S.A. § 28.421(6). "Statutory interpretation is a question of law reviewed de novo on appeal." People v. Williams, 226 Mich.App. 568, 570, 576 N.W.2d 390 (1997). The overriding goal guiding judicial interpretation of statutes is to discover and give effect to legislative intent. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996); Williams, supra at 570, 576 N.W.2d 390; Knight v. Limbert, 170 Mich.App. 410, 413, 427 N.W.2d 637 (1988). "Unless defined in the statute, every word or phrase therein should be accorded its plain and ordinary meaning, taking into account the context in which the words are used." People v. Hack, 219 Mich.App. 299, 305, 556 N.W.2d 187 (1996).

M.C.L. § 750.224f; M.S.A. § 28.421(6) establishes two separate periods during which it is unlawful for a convicted felon to carry a firearm. The first period lasts for three years, and it applies to individuals convicted of a felony, as that term is defined by the statute. The second period lasts for five years, and it applies to individuals convicted of a specified felony, as that phrase is defined by the statute. The problem with defendant's reading of the statute is that it is based on an erroneous assumption that the categories "felony" and "specified felony" exist independently of each other. In plain and unambiguous language, the statute indicates that a specified felony is merely a particularized subcategory of the category felony. Subsection 5 clearly indicates that the definition of felony applies throughout the statute. M.C.L. § 750.224f(5); M.S.A. § 28.421(6)(5) ("As used in this section...."). Accordingly, the definition of felony provided in subsection 5 also applies to the definition of specified felony found in subsection 6. Subsection 6 simply outlines what additional requirements must be met in order for a felony to also be a specified felony. In other words, subsections 5 and 6 are overlapping categories, not discrete classifications, with the specified felony category being entirely subsumed within the felony category. Thus, if an individual is convicted of the attempted violation of law, and that attempt involved "the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance," then such an individual has been convicted of a specified felony under M.C.L. § 750.224f; M.S.A. § 28.421(6). Because defendant's 1998 conviction of attempted possession of cocaine meets these criteria, he is subject to the five-year limit.

We also reject two related arguments raised by defendant. First, defendant contends that the trial court erred in admitting into evidence a judgment of probation addressing defendant's 1988 conviction. Initially, we note that defendant failed to preserve the issue for appeal by raising a timely and specific objection to the exhibit when it was offered by the prosecution at the close of its case-in-chief or to the lack of any limiting instruction in the trial court's final jury instructions. People v. Mayfield, 221 Mich.App. 656, 660, 562 N.W.2d 272 (1997). In any event, we conclude that defendant's argument lacks merit given that it is predicated on his erroneous conclusion that the 1988 conviction is not a specified felony. Second, defendant argues that M.C.L. § 750.224f; M.S.A. § 28.421(6) is unconstitutional in that it (1) infringes on his right to keep and bear arms under the Michigan Constitution^[4] and (2) violates the Ex Post Facto Clauses of the federal and state constitutions.^[5] Both of these arguments were rejected by this Court in People v. Swint, 225 Mich.App. 353, 363, 375, 572 N.W.2d 666 (1997).

Defendant next argues that his convictions must be vacated because he was held in custody in excess of ninety days before commencement of his trial. The ninety-day limit is established by both Const. 1963, art. 1, § 15 and MCR 6.106(B)(3). While we agree that defendant was held beyond the ninety-day time limit,^[6] we find that vacation of his convictions is unwarranted.

MCR 6.106(B) states in pertinent part:

(1) The court may deny pretrial release to

(a) a defendant charged with

(i) murder or treason ...

* * * * * *

(3) If the court determines as provided in subrule (B)(1) that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.

The lower court record includes a criminal scheduling order that indicates that defendant agreed that the trial would commence on April 23, 1996. The trial began as scheduled. The defendant, having agreed to the April 23 date, effectively waived his right to proceed to trial within ninety days. Hence, we conclude defendant's argument to be without merit.

Defendant also argues that the trial court lacked jurisdiction with regard to the charge of felon in possession because the prosecution presented no evidence at the preliminary examination regarding defendant's 1988 conviction. Although we agree that an error was made, we conclude that it was harmless given that sufficient evidence was adduced at trial to convict defendant of the charge. People v. Meadows, 175 Mich.App. 355, 359, 437 N.W.2d 405 (1989).

Defendant next claims he was denied his right to due process as guaranteed by the Fourteenth Amendment of the federal constitution^[7] when he and his counsel were not allowed to be present at a hearing concerning the prosecution's petition to hold two individuals as material witnesses. We disagree. "A defendant has a right to be present during ... any ... stage of trial where the defendant's substantial rights might be adversely affected." People v. Mallory, 421 Mich. 229, 247, 365 N.W.2d 673 (1984). The subject matter of the hearing at issue was the witnesses' fear of testifying against defendant. No other matters were discussed, and no substantive evidence was taken from the witnesses. Therefore, defendant's exclusion from the hearing was not error. Id.; People v. Gross, 118 Mich.App. 161, 164, 324 N.W.2d 557 (1982).

Defendant also claims that his Sixth Amendment right to confront the witnesses against him^[8] was violated when he was not afforded the opportunity to cross-examine the two material witnesses at the hearing. "[T]he principal protection provided by the [Sixth Amendment's] Confrontation Clause to a criminal defendant is the right to conduct cross-examination." People v. Gearns, 457 Mich. 170, 186, 577 N.W.2d 422 (1998) (Brickley, J.). A criminal defendant's right to cross-examine, however, comes into play only when a witness has provided evidence of substance that bears on the outcome of the criminal trial. Id. at 187, 577 N.W.2d 422. Again, that was not the case with regard to the matters discussed at the hearing. Therefore, no violation of defendant's Confrontation Clause rights occurred. As for defendant's contention that the prosecution failed to disclose any consideration or inducements offered to the two witnesses, there is nothing in the record that supports this allegation.

Finally, defendant claims that his convictions should be reversed because the prosecutor knowingly presented perjurious testimony. See People v. Canter, 197 Mich.App. 550, 558, 496 N.W.2d 336 (1992). Again, we conclude that defendant's claim is not supported by the record. While it is true that some of the details of the testimony given by the prosecutor's res gestae witnesses did conflict, there is no evidence that the prosecutor attempted to conceal these contradictions. Further, while the testimony of some of the witnesses conflicted with statements they had given to the police immediately after the shooting, there is no evidence that the prosecutor attempted to keep the contents of those previous statements from defendant. See People v. McWhorter, 150 Mich.App. 826, 831-832, 389 N.W.2d 499 (1986). Indeed, defense counsel was afforded ample opportunity to impeach the witnesses' credibility at trial with the prior statements. See People v. Thornton, 80 Mich.App. 746, 751-752, 265 N.W.2d 35 (1978).

Defendant's convictions and sentences are affirmed. We remand for imposition of a sentence for the felon in possession conviction. We do not retain jurisdiction.

NOTES

[1] MRE 613(b) reads, in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

[2] If the proponent of the extrinsic evidence does not confront the witness on cross-examination with the prior statement, we believe the best course of action would be for the proponent to excuse the witness subject to recall. This procedure was not followed in the case at bar.

[3] Furthermore, defendant has not established that the "interests of justice otherwise require" us to conclude that the trial court abused its discretion.

[4] Const. 1963, art. 1, § 6 reads: "Every person has a right to keep and bear arms for the defense of himself and the state."

[5] U.S. Const., art. I, § 10 reads in pertinent part: "No State shall ... pass any ... ex post facto Law...." Const. 1963, art. 1, § 10 reads in pertinent part: "No ... ex post facto law ... shall be enacted."

[6] Defendant was arraigned in the district court on January 16, 1996. At that time defendant was ordered to be held without bond. His jury trial began on April 23, 1996, well in excess of the ninety-day limit.

[7] U.S. Const., Am. XIV reads in pertinent part: "No State shall ... deprive any person of life, liberty, or property, without due process of law...."

[8] U.S. Const., Am. VI reads in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...."