People of Michigan v. Demetrius Desean Morgan

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 29, 2018
Plaintiff-Appellee,
V No. 335855
Wayne Circuit Court
DEMETRIUS DESEAN MORGAN, LC No. 15-008349-01-FC
Defendant-Appellee.
Before: MURRAY, C.J., and METER and GLEICHER, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted his convictions, following a jury trial, of
first-degree premeditated murder, MCL 750.316(1)(a); possession of a firearm by a felon, MCL
750.224f; and possession of a firearm during the commission of a felony, MCL 750.227b. The
trial court imposed a sentence of two years’ imprisonment for the felony-firearm conviction, to
be served before and consecutively to concurrent sentences of life imprisonment without parole
for the murder conviction and two to five years’ imprisonment for the felon-in-possession
conviction. We affirm.
I. BASIC FACTS
Defendant’s convictions arose from a homicide that took place outside a Citgo gasoline
station at the corner of Chalmers St. and Houston Whittier St. in Detroit during the early-
morning hours of September 10, 2015. The victim was shot several times at close range. The
prosecution’s theory of the case was that defendant was affiliated with a gang that regarded that
gas station as part of its territory and that the victim had “intruded” on the territory. The defense
conceded that defendant was present at the gas station for some of the time that the victim was
there, but maintained that defendant had left the premises at the time of the shooting and was
misidentified as the shooter.
The homicide was captured by surveillance video equipment, but it was not possible to
identify the shooter from the resulting imagery, although the footage did appear to show the
shooter wearing some apparel similar to what defendant was wearing earlier that night. The sole
eyewitness to the homicide was a nonspeaking deaf man, who during the investigation twice
selected defendant’s image from a photographic lineup, and who at trial, with the assistance of
two sign-language interpreters, identified defendant as the shooter—albeit with some apparent
equivocation. The prosecution also presented evidence that a gang known as “Chedda Ave”
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trafficked in narcotics in, and asserted control over, the area of the homicide, and that defendant
was known publicly as a member of a rap group with the same name.
Defendant’s cousin told the police that defendant had come to her home that night and
remained there through the time of the shooting.1 Defendant in turn testified that he went to his
cousin’s home from the Citgo station, but that he then changed clothes and visited a casino for
about 15 minutes. A police officer testified that defendant had telephone conversations with his
mother while he was incarcerated as a suspect in this case, and that in those calls they talked
about an alibi and the mother advised defendant not to say anything about the casino.
In this appeal, defendant challenges his convictions, raising issues through both
appointed appellate counsel, and in a pro se supplemental brief filed pursuant to Supreme Court
Administrative Order No. 2004-6, Standard 4 (Standard 4 brief).
II. APPELLATE COUNSEL’S ISSUES
Appellate counsel first argues that defendant’s trial attorney was ineffective for not
having moved the trial court to suppress the eyewitness’s identification of defendant on the
grounds that that witness’s identification from the investigation onward was tainted by improper
suggestiveness or otherwise as the result of reliance by the police and prosecution of unqualified
sign-language interpreters. Appellate counsel alternatively argues that the prosecution presented
insufficient evidence to establish defendant’s identity as the shooter and that defense counsel was
ineffective for not having moved the trial court to either quash the bindover or direct a verdict of
acquittal at trial. Appellate counsel moved for a new trial on these bases, but the trial court
denied the motion, and did so without supplementing the record with an evidentiary hearing.
A. IDENTIFICATION PROCEDURES
A trial court’s decision on a motion for a new trial is reviewed for an abuse of discretion.
People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003); People v Lemmon, 456 Mich 625,
648 n 27; 576 NW2d 129 (1998). We also review for an abuse of discretion a court’s decision
regarding whether to hold an evidentiary hearing. See, e.g., People v Unger, 278 Mich App 210,
216-217; 749 NW2d 272 (2008).
“A claim of ineffective assistance of counsel presents a mixed question of law and fact.
This Court reviews a trial court’s findings of fact, if any, for clear error, and reviews de novo the
ultimate constitutional issue arising from an ineffective assistance of counsel claim.” People v
Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011) (citations omitted). However, where
there has been no evidentiary hearing on the issue, this Court’s review of claims of ineffective
assistance of counsel is limited to mistakes apparent on the existing record. See id.2 “In
1
She later stated that she did not “know if he left or not because [she] went to sleep.”
2
We note that this Court denied defendant’s motion for a remand. People v Morgan,
unpublished order of the Court of Appeals, issued April 17, 2018 (Docket No. 335855). We
decline to revisit this decision.
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reviewing a defendant’s claim of ineffective assistance of counsel, the reviewing court is to
determine (1) whether counsel’s performance was objectively unreasonable and (2) whether the
defendant was prejudiced by counsel’s defective performance.” People v Rockey, 237 Mich App
74, 76; 601 NW2d 887 (1999). Regarding the latter, the defendant, to obtain relief, must show
that the result of the proceeding was fundamentally unfair or unreliable and that but for counsel’s
poor performance, the result would have been different. People v Messenger, 221 Mich App
171, 181; 561 NW2d 463 (1997).
A trial court’s decision to admit identification evidence should not be reversed unless
clearly erroneous, and clear error exists when the reviewing court is left with a definite and firm
conviction that a mistake was made. People v Kurylczyk, 443 Mich 289, 303 (GRIFFIN, J., joined
by MALLETT, J.), 318 (BOYLE, J., joined by RILEY, J., joining GRIFFIN, J., in pertinent part); 505
NW2d 528 (1993), implied overruling on other grounds recognized by People v Perry, 317 Mich
App 589, 598; 895 NW2d 216 (2016); People v Williams, 244 Mich App 533, 537; 624 NW2d
575 (2001). The fairness of an identification procedure is evaluated in light of the total
circumstances to determine whether the procedure was so impermissibly suggestive as to render
the identification irreparably unreliable. Kurylczyk, 443 Mich at 311-312, 318; People v
McCray, 245 Mich App 631, 639; 630 NW2d 633 (2001); People v Davis, 146 Mich App 537,
548; 381 NW2d 759 (1985). If a witness is exposed to an impermissibly suggestive pretrial
lineup, that witness’s in-court identification of the defendant should not be allowed unless the
prosecution shows by clear and convincing evidence that the in-court identification has a
sufficiently independent basis to purge the taint of the improper identification. People v Gray,
457 Mich 107, 115; 577 NW2d 92 (1998); People v Kachar, 400 Mich 78, 91-93; 252 NW2d
807 (1977). “The need to establish an independent basis for an in-court identification arises
[only] where the pretrial identification is tainted by improper procedure or is unduly suggestive.”
People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995).
Appellate counsel asserts that the eyewitness’s deafness “made it impossible for him to
communicate with hearing, speaking persons.” Appellate counsel, however, exaggerates the
eyewitness’s communication capabilities. Even persons with normal hearing often supplement
speaking and listening with other forms of communication, such as gestures and writing.
Appellate counsel does not dispute the credentials or performance of the interpreters who
assisted the eyewitness at trial, or of the one who assisted with part of the investigation and
appeared as an expert at trial. Although the eyewitness’s deafness presented special challenges
in communicating with the police, and at trial, those challenges were not insurmountable.
Appellate counsel additionally states that the eyewitness, “apparently, from the evidence
presented, could not read or write effectively,” but offers no record citations to support that
assertion. In fact, the record shows that the eyewitness could sign his name, and otherwise
leaves unanswered the question of his general state of literacy. Regardless, in making issue of
the eyewitness’s reading ability, appellate counsel mentions only that the eyewitness signed a
statement prepared for him early in the investigation as an instance where written words came
into play in connection with that witness. But counsel does not assert, let alone offer a record
citation to show, that this printed statement was relied upon by anyone involved in the case
thereafter. Further, the sign-language expert offered compelling testimony at trial to the effect
that the eyewitness’s entire initial interview with the police, relying on the limited interpreting
abilities of one officer, resulted in no useful or reliable information, including the statement the
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eyewitness signed. Although appellate counsel suggests that the eyewitness’s offering of
“statements to various law enforcement parties without the benefit of a proper interpreter”
resulted in a tainted identification of defendant, counsel presents no reason to suppose that
anything from the interview involving the officer with poor signing capabilities was suggestive
of defendant as the shooter.
Appellate counsel also offers no argument impugning either of the photographic lineups
from which the eyewitness selected defendant’s image, and the descriptions of those proceedings
at trial included no basis for supposing that any such impropriety tainted the identifications. A
police sergeant described visiting the eyewitness at the latter’s workplace, where the two were
assisted in communications only by the eyewitness’s coworker or supervisor, and individually
displaying for the eyewitness six photographs, from which the eyewitness showed obvious
excitement over the image of defendant and none other. The police sergeant described gestures
from the eyewitness that required no expert to interpret, explaining that “he emphatically pointed
at the picture and tapped it several times” and also “gestured . . . with his hands in the shape of a
handgun and pointed at the picture . . . and made several motion[s] with his hand as if he were
shooting someone on the ground.” The police sergeant additionally testified that the police had
no suspect in view when trying to communicate with the eyewitness earlier in the investigation
such that they might have suggested, then, a possible suspect to him. The sign-language expert
in turn described acting as interpreter when the eyewitness was again presented with the
photographic lineup; he described how the eyewitness, upon reaching defendant’s image, “was
pointing and pointing that’s the shooter . . . as he pounded on the page.” The expert stated that
he was physically reacting to defendant’s image such that “you almost didn’t even need to know
sign language” to understand that the eyewitness was emphatically identifying defendant.
Further, the sign-language expert made clear that for his part in interpreting for the eyewitness,
“[h]is reading abilities . . . wouldn’t play a part at all,” effectively neutralizing appellate
counsel’s speculations concerning the eyewitness’s ability to read.
Appellate counsel argues that the eyewitness’s performance at the preliminary
examination did not include a reliable identification of defendant as the shooter, and points out
some apparent inconsistencies in what the eyewitness had to say, but appellate counsel does not
argue that the proceeding itself infected the eyewitness with some improper suggestion that
defendant was the guilty person.
Further, although appellate counsel complains about the lack of proper “translations” of
the eyewitness’s sign-language communications, appellate counsel stops short of impugning the
credentials, or of offering examples of inaccuracy, of the persons who performed that function at
trial or of the person who was recognized as an expert at trial and who also assisted in the
investigation.
In sum, although the eyewitness’s deafness presented special communication problems,
appellate counsel has failed to show that the police or prosecution did not recognize those
challenges and meet them head on.
Appellate counsel has failed to show that the eyewitness’s identification of defendant as
the shooter was tainted by improper suggestiveness. Because the eyewitness appeared at trial
with no improper taint regarding his ability to identify defendant, defense counsel would have
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had nothing to gain from seeking to suppress that identification. A trial attorney is “not required
to argue a frivolous or meritless motion.” People v Gist, 188 Mich App 610, 613; 470 NW2d
475 (1991).
B. SUFFICIENCY OF THE EVIDENCE
Whether the prosecution presented sufficient evidence to support a verdict of guilty is a
question of law, calling for review de novo. People v Herndon, 246 Mich App 371, 415; 633
NW2d 376 (2001). When reviewing the sufficiency of evidence in a criminal case, a reviewing
court must view the evidence of record in the light most favorable to the prosecution to
determine whether a rational trier of fact could have found that each element of the crime was
proved beyond a reasonable doubt. Id.Appellate counsel argues that the sole eyewitness’s equivocation in identifying defendant
at trial as the shooter left the jury without a sufficient basis for concluding beyond a reasonable
doubt that defendant was in fact the guilty person. We disagree.
The identity of the offender is an element in every offense. People v Yost, 278 Mich App
341, 356; 749 NW2d 753 (2008). The accounts of a single witness can suffice to persuade a jury
of a defendant’s guilt beyond a reasonable doubt. See, generally, People v Jelks, 33 Mich App
425; 190 NW2d 291 (1971).
In this case, the eyewitness unequivocally testified that he had selected defendant’s image
at the photographic lineups presented to him as part of the investigation, but when asked to
identify defendant at trial, the witness could not seem to avoid some equivocation. When the
prosecutor later asked the eyewitness if he realized that the picture he selected from the lineup
was of defendant, the witness replied, “He didn’t have a big face he had a small face he didn’t
have a big head he had a small head . . . almost like a rat face,” adding, “almost like he had think
[sic] eyebrows he had these big eyebrows you know I think that’s the picture.” A jury could
have reasonably viewed the eyewitness’s apparent equivocation over a matter not actually in
doubt (i.e., that the picture the eyewitness chose was a picture of defendant) as signaling that the
witness’s nervousness, or other excitement, in the trial setting caused him to pepper his
identifications of defendant with impressions relating to how a photograph of a person might not
perfectly match that person’s later personal appearance.
Further, the sign-language expert offered a benign explanation for what might otherwise
seem a striking inconsistency in the eyewitness’s statements. Confronted at trial with indications
that while the investigation was in progress he had told the prosecution that he had seen the
shooter “many times” before, the eyewitness replied, “I said I never saw him before.” Asked if
his expertise in American sign language suggested an explanation for the apparently inconsistent
answers, the expert offered the following response:
As an interpreter the word [“]defendant[”] make us pause. Should make
us as interpreters pause because [deaf] people . . . don’t have the same exposure
[to words] like [“]defendant[”] that we have.
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. . . He does not know what the word defendant is. So how I would sign
the word defendant to him is built up in the conversation before court starts. Some
interpreters have been legally trained do it [sic] and some don’t.
And if he didn't know what the word defendant means as you can see on
the video, he will answer a question without knowing exactly what it is.
So if he responded I’ve never seen him before did he know he was talking
about the defendant or the victim . . . [?]
The eyewitness’s deafness, combined with his apparent nervous or otherwise excited
answers to questions, did indeed present special challenges to the jurors in weighing that
witness’s testimony. But even when a witness’s identification of the defendant is less than 100%
solid, the question remains one for the jury. See People v Abernathy, 39 Mich App 5, 7; 197
NW2d 106 (1972), and People v Smith, 15 Mich App 505, 507; 166 NW2d 610 (1969).
In this case, in addition to the eyewitness’s seemingly equivocal identification at trial, the
jury had for its consideration the evidence of that witness’s emphatic selection of defendant’s
image each time a six-image photographic array was shown to him. Also in evidence was
defendant’s own account of being at the subject Citgo station near the time of the shooting.
Also, even if not conclusive by itself, good circumstantial evidence linking defendant to the
crime was that the shooter, as described by the eyewitness, was wearing black pants and red
shoes similar to what defendant was wearing while admittedly at the Citgo.
Further, defendant described going from the Citgo to his cousin’s home, changing
clothes, then spending only a token amount of time at a casino. The prosecution’s theory that
defendant took those actions to create evidence suggesting an alibi was bolstered by the evidence
of a second attempt to manufacture an alibi not consistent with defendant’s own. In particular,
defendant’s cousin included specific times of day with her statements to the police about
defendant’s having spent time at her house on the night in question, but the times did not
comport with defendant’s account of briefly visiting a casino, or with the surveillance footage
showing defendant at both the Citgo and the casino, and the cousin admitted offering her
statement to the police in the first instance in hopes of providing defendant with an alibi. The
evidence further indicated that defendant’s mother, in a telephone conversation with defendant
after he was arrested, admonished him to not to speak of his visit to the casino, as if
recommending the cousin’s manufactured alibi over defendant’s own.
For these reasons, we reject appellate counsel’s challenge to the sufficiency of the
evidence to support the verdict at trial.
Our rejection of the sufficiency claim predicated on the prosecution’s asserted failure to
establish defendant’s identity as the shooter obviates our need to consider appellate counsel’s
related arguments that defendant’s trial attorney was ineffective for not having moved the trial
court to quash the bindover or grant a directed verdict of acquittal. We note that there is no
preservation requirement for appellate review of a challenge to the sufficiency of the evidence to
support a verdict in a criminal case. See People v Patterson, 428 Mich 502, 514; 410 NW2d 733
(1987). Accordingly, the lack of any such motion below left defendant at no disadvantage in
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asking for this Court’s review de novo of that legal question on appeal. Moreover, an appellate
court’s decision de novo on a sufficiency challenge renders moot whether such a challenge
would have succeeded if urged as ground for a directed verdict at trial. Finally, we point out that
even when a magistrate has erroneously concluded that sufficient evidence was presented at the
preliminary examination to support a bindover, such error is rendered harmless by conviction at
trial on the basis of sufficient evidence. People v Meadows, 175 Mich App 355, 359; 437 NW2d
405 (1989).
III. DEFENDANT’S STANDARD 4 BRIEF
Defendant, in his Standard 4 brief, argues that he was denied a fair trial by the
introduction of evidence of his participation in a rap group sharing the name of the gang that
asserted control over the area where the homicide took place, by the empaneling of an allegedly
biased juror, and by the victim’s cousin’s testimony that defendant told him that the victim’s
family had formed the opinion that defendant had committed the homicide. Defendant
additionally asserts that defense counsel was ineffective for not having raised objections in
connection with the challenged juror or the testimony concerning the victim’s family’s
suspicions.
A. RAP GROUP
Defendant argues that the trial court erred by overruling objections to the evidence
linking him to a rap group with the same name as the gang that asserted control over the area in
question, on the grounds that it was both irrelevant, see MRE 401, and unfairly prejudicial, see
MRE 403. Defendant additionally argues for the first time on appeal that the prosecution’s use
of that evidence violated his constitutional rights of association and expression. 3
This Court reviews a trial court’s evidentiary decisions for an abuse of discretion. People
v Martzke, 251 Mich App 282, 286; 651 NW2d 490 (2002). “A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes.” People v
Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 (2012). This Court reviews
constitutional questions de novo. People v Conat, 238 Mich App 134, 144; 605 NW2d 49
(1999). However, because defendant’s constitutional issues were not raised below, our review is
for plain error affecting substantial rights. See People v Miller, 482 Mich 540, 559; 759 NW2d
850 (2008), citing People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
A police detective assigned to a unit combating Detroit’s street gangs testified that the
area of Chalmers and Houston Whittier, including the Citgo station where the subject homicide
took place, was menaced by a gang known as “Chedda Ave,” which trafficked in narcotics in,
and asserted control over, the area.
The police officer in charge of the investigation identified records from an internet social
networking site under the name “Chedda Ave Meech,” explaining that this was defendant’s
3
US Const, Am I; Const 1963, art 1, § 3 (assembly) and § 5 (expression).
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account name. The officer additionally identified a post from that account that was made on
September 19, 2015, and that stated, “I heard the police look for me because I got the hood
hot[.]” The officer also identified images of defendant at the apartments next to the Citgo
station. The officer further testified that her investigation included scouting a popular video-
sharing site for features involving defendant, and she identified an exhibit as “a video for Chedda
Ave called everybody wanna be a boss[.]” It depicted defendant and other “Chedda Ave people
. . . actually on top of the [Citgo] gas station” in the area in question. The officer explained that
she resorted to such internet sleuthing because “with social media people tend to kind of be open
about information and they also tend to post pictures and it is just another valuable tool to help
with the investigation.”
Defendant admitted that he was present at the Citgo station on the night in question and
that he sometimes answered to the nickname “Meech.” He also admitted his participation in a
group of some sort called “the Chedda Ave”4 and admitted being the singer of a rap song whose
lyrics included a reference to “another body up at the Citgo[.]”
Defendant argues that the evidence concerning the activities of the Chedda Ave gang was
not relevant because there was no evidence that the subject homicide was gang-related. We
disagree, given the prosecution’s theory that defendant was affiliated in some manner with a
gang that regarded the Citgo station as part of its territory upon which the victim had intruded,
and that intrusion on gang turf, in the absence of any evidence of personal animosity, was the
motive for the point-blank shooting of a young man who was only standing and smoking while
apparently waiting for a ride and who showed no apprehension when his eventual killer
approached him.
Defendant points out that rap music by its nature “reflects and glorifies violent street life
and inner-city culture,” and he argues that his participation in rap performances no more
implicate him in the subject homicide than do “the movies of Sylvester Stallone or Bruce Lee”
implicate those performers in violent crime. This comparison is inapt, however. The evidence
showing defendant’s involvement with a group bearing the name of the gang identified as the
one asserting control over the area in question, including his singing a lyric about “another body
up at the Citgo,” was offered not to suggest generally that defendant was a gang member and
thus an indiscriminately violent person, but rather to show specifically that defendant at least
identified with that gang. This, in turn, gave rise to the inference that defendant was at least in
harmony with that gang’s territorial sensitivities or proclivities. Further, as the prosecutor
suggested at trial, the evidence also explained why the arresting officer, and also the head of the
investigation, respectively, came to regard defendant as a person of interest.
For these reasons, the trial court’s decision to allow the challenged evidence did not fall
outside of the range of reasonable and principled outcomes. See Waterstone, 295 Mich App at
131-132.
4
From context, this appears to be a rap-music group.
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In addition, we find no plain error in connection with defendant’s unpreserved
constitutional arguments about how use of the evidence of his affiliation with “the Chedda Ave”
allegedly violated his expressive and associational rights. Defendant argues that making
prosecutorial capital out of his membership in a rap group violated his associational rights and
that making such capital out of a lyric that he sang violated his expression rights. Defendant
relies on Dawson v Delaware, 503 US 159, 168; 112 S Ct 1093; 117 L Ed 2d 309 (1992), in
which the United States Supreme Court held that a defendant’s First Amendment rights were
violated by the introduction of evidence at a sentencing hearing that the defendant was a member
of a prison gang, when that evidence proved nothing more than the defendant’s “abstract
beliefs,” which had “no bearing on the issue being tried.” But the Court first advised that “the
Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs
and associations . . . simply because those beliefs and associations are protected by the First
Amendment.” Id. at 165.
Defendant likens his case to Dawson on the ground that the evidence of his involvement
in a rap group engaging in First Amendment activity “proved nothing more than Defendant’s
innocent association with others.” Defendant further argues that “the lyric ‘another body up at
the Citgo’ was an irrelevant statement of ‘machismo’ typical of rap songs.” However, evidence
of membership in a rap group which adopted the name of the gang asserting control over the area
at issue and whose expressive activities included publicly celebrating dominion over the Citgo
station at issue showed at least a strong personal and regional affinity with that gang, and thus
had direct bearing on the prosecution’s theory that the subject murder was committed as an
assertion of territorial dominance. Defendant had a constitutional right to indulge in an artistic
celebration of violent inner-city culture, or otherwise to display a personal affinity with a gang,
but not to keep a jury from learning of such things when they bore on the prosecution’s theory of
the case. No plain error is apparent.
B. ALLEGEDLY BIASED JUROR
Defendant argues that he was denied an impartial jury when a prospective juror stated
that he had been victim of an armed robbery, then was seated and sworn without further inquiry
into the matter. Because there was no objection below, our review is for plain error affecting
substantial rights. Miller, 482 Mich at 559; Carines, 460 Mich at 763-764.
“[A] criminal defendant has a constitutional right to be tried by an impartial jury . . . .”
Miller, 482 Mich at 547. However, “jurors are presumed to be . . . impartial, until the contrary is
shown,” and the defendant bears the burden of establishing that a juror “was not impartial or at
least that the juror’s impartiality is in reasonable doubt.” Id. at 550 (quotation marks and
citations omitted).
Defendant bases this appellate claim on the following exchange that took place in
response to the trial court’s inquiry regarding whether any of the prospective jurors had been
victims of a crime:
JUROR NO. 12: Robbed at knife point as a paper boy long a long time
ago.
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THE COURT: You got robbed at knife point?
JUROR NO. 12: Yes.
THE COURT: So did I when I was a paper boy.
JUROR NO. 12: Free [P]ress.
THE COURT: That’s a coincidence.
Later, when the court asked the prospective jurors about having friends or relatives who were
law-enforcement officers, Juror 12 advised that he was friends with the Wayne County
Prosecutor and also with a district judge. Asked if those relationships would influence him,
Juror No. 12 answered, “I can be fair.”
Defendant protests that “[n]o one ever returned to ask Juror 12 if he could set aside the
fact that he had been robbed at knife point,” and objects that Juror No. 12 “was not excused from
the panel and went on to serve on the jury.” Defendant asserts that what Juror No. 12 revealed
about being robbed as a newspaper carrier placed his impartiality in reasonable doubt, resulting
in plain error because he “never said he could set aside the fact that he had been robbed at knife
point.” We are not persuaded by defendant’s argument.
The instant case concerned a person murdered by being shot at close range. In contrast,
Juror No. 12 described being robbed, i.e., threatened. Juror No. 12 gave no hint that this crime
that took place “a long time ago” left him severely traumatized such that he could not be
impartial in deciding a criminal case. The court, in effect, signaled that it detected no lingering
problems for that juror by asking no follow-up questions and conversationally volunteering that
the court had suffered the same crime as a youth. The juror confirmed the court’s impression by
offering no further details about the incident other than the benign one that the newspaper for
which he was delivering papers was The Detroit Free Press. Defendant cites no authority that
stands for the proposition that a distant history as the victim of a robbery per se rebuts the
presumption of juror impartiality. We find no plain error.
Further, defense counsel actively participated in jury selection, including by exercising
multiple peremptory challenges. Contrary to defendant’s argument, there is simply no basis
from which to conclude that counsel was ineffective by failing to further question the juror,
especially when the juror explicitly stated (albeit in the context of discussing his friends in the
legal system) that he could be a fair juror.
C. VICTIM’S COUSIN’S STATEMENT
Defendant argues that he was denied a fair trial when the victim’s cousin testified that
defendant had told him that the victim’s family thought defendant was the shooter, asserting that
this was inadmissible hearsay, the introduction of which violated his right to confront adverse
witnesses. Defendant admits that the challenged testimony drew no objection below, leaving
appellate objections unpreserved. Our review is thus for plain error affecting substantial rights.
See Miller, 482 Mich at 559; Carines, 460 Mich at 763-764.
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Defendant takes issue with the victim’s cousin’s testimony that, a few days after the
cousin saw defendant at a candlelight vigil for the victim at the home of the victim’s
grandmother, defendant telephoned him and said “[h]e heard my family was saying that he did it
and stuff like that.” The witness then answered “I guess” when asked if defendant had simply
wanted to let him “know that.”
Hearsay, meaning testimony about a person’s unsworn, out-of-court assertions offered to
prove the truth of the matter asserted, MRE 801(c), is generally inadmissible, MRE 802, subject
to several exemptions and exceptions as provided by the rules of evidence. Defendant
characterizes the challenged testimony as “not Defendant’s statement,” but rather as “the
[victim’s] family’s statement that Defendant was the shooter.” Even accepting defendant’s
debatable argument that the cousin’s testimony was offered to prove that defendant “did it” (as
opposed to being offered to prove what defendant knew about rumors surrounding the murder),
any error did not rise to a level requiring reversal under the plain-error standard. This general
information about “my family . . . saying that he did it,” without any specifics to back it up and
in light of the inculpatory evidence presented at trial, did not rise to the level of affecting the
outcome of the trial. Carines, 750 Mich at 763.5
In connection with this issue, defendant argues that his trial attorney was ineffective for
failing to object to the testimony, but defendant has not demonstrated that an objection would
have affected the outcome of the trial. Messenger, 221 Mich App at 181.
Affirmed.
/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Elizabeth L. Gleicher
5
We also note that the alleged and vague “statement” by the “family” was clearly not
“testimonial” in that it was not the result of an attempt to “prove past events potentially relevant
to later criminal prosecution.” Davis v Washington, 547 US 813, 814; 126 S Ct 2266; 165 L Ed
2d 224 (2006).
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