People of Michigan v. Bobby Fomby
332090
| Mich. Ct. App. | Sep 14, 2017Background
- In the early morning of May 18, 2015, a Molotov cocktail was thrown through a window of defendant Bobby Fomby’s sister’s home; gasoline residues and fire-investigator testimony supported arson by an incendiary device.
- Seven occupants (including a toddler) were inside; some witnesses saw Fomby riding away on a moped after they escaped and reported overheard/on-the-phone admissions by Fomby the next day.
- Fomby was convicted by a jury of second-degree arson and placing an offensive substance with intent to injure or damage property; sentenced as a fourth-offense habitual offender to concurrent 15–30 year terms.
- On appeal Fomby challenged: denial of mistrials for (1) juror-witness contact and (2) testimony that family asked a witness not to appear; ineffective assistance for alleged inadequate investigation and failure to obtain phone records/call witnesses; exclusion of a detective’s testimony about a witness’s prior statement; and several sentencing-guidelines (OV) scores.
- The trial court had excused the jury, questioned the juror who said a brief non-substantive remark would not affect fairness, struck the family-request testimony and instructed the jury to disregard it; the record showed telephone records Fomby sought did not exist and a prosecution-called alibi witness repudiated an alibi.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of mistrial after juror spoke briefly with a witness was abuse of discretion | Court: brief non-substantive contact, juror said he could be fair; no presumed prejudice | Fomby: contact prejudiced jury and required mistrial | Denial affirmed — no prejudice shown; juror’s assurance sufficient (Schaw, Nick) |
| Whether denial of mistrial for testimony that family asked witness not to appear was error | Court: testimony was cumulative of recorded jail call showing defendant discouraged family attendance; struck and jury instructed to disregard | Fomby: testimony was prejudicial and irrelevant | Denial affirmed — testimony struck and curative instruction sufficient; juries presumed to follow instructions (Graves) |
| Whether counsel was ineffective for inadequate investigation, not calling witnesses, and not obtaining phone records | Prosecution/trial court: counsel’s choices were trial strategy; requested phone records were found not to exist; alibi witness repudiated alibi | Fomby: counsel failed to investigate, call witnesses, and obtain records that would be exculpatory | Claim rejected — defendant gave no specifics or evidence of missing records; failure to call unnamed witnesses not shown to deprive him of a substantial defense (Rockey, Grant, Russell) |
| Whether exclusion of lieutenant’s testimony about another witness’s prior inconsistent statement was erroneous | Court: impeachment via prior inconsistent statement must follow rules; detective’s testimony about another’s statement did not fit MRE 613, 801(d), or 803(5); defendant already elicited substance from the witness | Fomby: wanted Crandall to testify to Nichols’s earlier statement to impeach her | Exclusion affirmed — procedures for prior inconsistent statements and recorded recollections not met; substance obtained from witness testimony anyway |
| Whether OV scoring (OV 1, OV 2, OV 9, OV 10) was erroneous | Prosecution: Molotov cocktail is an "incendiary device" exposing occupants to fire/smoke; occupants were placed in danger and were vulnerable while likely asleep | Fomby: device not used against persons; intent was to burn property, not to harm occupants; argued Ball supports limiting weapon scoring | Scoring affirmed — Molotov is an incendiary device; exposure to smoke/flame supports OV 1 and OV 2; proximity and risk support OV 9; time of attack supports OV 10 (Hardy, Ball distinguished) |
Key Cases Cited
- People v Schaw, 288 Mich. App. 231 (2010) (mistrial standard; prejudice must be shown)
- People v Nick, 360 Mich. 219 (1960) (juror contact does not automatically require reversal)
- People v Schram, 378 Mich. 145 (1966) (exposure of jurors to outside comments does not mandate reversal absent prejudice)
- People v Jordan, 275 Mich. App. 659 (2007) (standard for ineffective assistance review)
- People v Rockey, 237 Mich. App. 74 (1999) (presumption that counsel was effective; defendant bears burden)
- People v Hardy, 494 Mich. 430 (2013) (OV factual findings reviewed for preponderance; legal issues de novo)
- People v Ball, 297 Mich. App. 121 (2012) (distinguishing use of chemical substances as weapons)
- People v Gratsch, 299 Mich. App. 604 (2013) (OV 9 victim definition: proximity to threat can suffice)
- People v LaVearn, 448 Mich. 207 (1995) (failure to present perjured testimony does not establish ineffective assistance)