969 N.W.2d 548
Mich. Ct. App.2021Background
- Early morning Feb. 9, 2017: victim Tamika Amos was shot over 10 times while seated in the front‑passenger seat of a car; she survived. No eyewitness identified the shooter.
- GPS-tether data and expert testimony placed defendant Alonte Smith at the scene during the shooting and showed a temporary loss of signal consistent with tampering; tinfoil consistent with attempted signal-blocking was found at his home.
- Prosecutor's theory: Smith, an East Side Gang member known as “Brick Head,” intended to shoot rival-gang member Amaris Kinnard after a Facebook Live video in which Kinnard disparaged him; Smith allegedly shot Amos by mistake after mistaking her for Kinnard.
- Prosecution introduced four printed Facebook posts (from third‑party accounts) linking Smith to the nickname "Brick Head" and a Facebook Live video posted by Kinnard; none of the third‑party posters or Kinnard testified to authenticate their posts.
- Jury convicted Smith of assault with intent to murder, two counts of felony‑firearm (second offense), felon in possession, and tampering with an electronic‑monitoring device; trial court later resentenced the AWIM term upward, but the Court of Appeals ordered reimposition of the original AWIM sentence on remand.
Issues
| Issue | People (Prosecution) Argument | Smith (Defendant) Argument | Held |
|---|---|---|---|
| Authentication of Facebook posts (Exs. 11A, 11B, 11C, 11E) | Agent Wysopal, a gang expert who viewed and printed the posts and who knew Smith, can authenticate the posts under MRE 901. | Posts came from third‑party accounts; account owners didn’t testify; risk of fake/hacked accounts makes authentication insufficient. | Court: Authentication met prima facie standard under MRE 901(a); admission left weight/reliability to jury. |
| Hearsay in Facebook posts/comments | Posts were relevant to identity/nickname and gang affiliation; some defendant comments were party‑opponent statements. | Many post comments were out‑of‑court statements by nonparties offered for their truth (e.g., that Smith was called “Brick Head”) and thus hearsay. | Court: Admission of comments in Exs. 11A, 11C, 11E was hearsay error, but Exhibit 11B and portions (including defendant’s comments) were admissible. Error was harmless because testimony of Agent Wysopal independently established the nickname. |
| Gang‑related evidence / propensity concerns | Facebook posts and video show gang ties, motive, and absence of mistake — a non‑conformity purpose. | Gang evidence is highly prejudicial and risks use as propensity evidence. | Court: Evidence relevant to motive and absence of mistake and not improperly used for propensity; MRE 403 risk was not substantial. |
| Ineffective assistance claims re: witnesses, instructions, objections | N/A (People defend adequacy of counsel) | Trial counsel failed to call Kinnard, investigate witnesses, request mere‑presence instruction, and sufficiently object to Facebook hearsay. | Court: Counsel’s choices were reasonable trial strategy; objections sufficiently raised hearsay concerns; no prejudice shown. |
| Sentencing error (AWIM sentence) | N/A | Trial court increased maximum on resentencing in contravention of Michigan’s 2/3 rule. | Court: Agreed; remanded to reimpose original AWIM sentence (40–50 years). |
Key Cases Cited
- People v Bynum, 496 Mich 610 (2014) (limits on gang‑related evidence and guidance on admissibility)
- Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144 (2017) (prima facie authentication standard under MRE 901(a))
- People v Layher, 464 Mich 756 (2001) (abuse of discretion review for evidentiary rulings)
- People v Gursky, 486 Mich 596 (2010) (harmless‑error standard under MCL 769.26 for preserved nonconstitutional errors)
- Estelle v McGuire, 502 US 62 (1991) (due‑process/unfairness standard for reversal based on evidentiary error)
- People v Floyd, 490 Mich 901 (2011) (application of 2/3 sentencing rule on remand)
- Strickland v Washington, 466 US 668 (1984) (ineffective‑assistance-of‑counsel standard)
- People v Knox, 469 Mich 502 (2004) (other‑acts evidence limits and limiting instructions)
- People v Carbin, 463 Mich 590 (2001) (deference to reasonable trial strategy)