People of Michigan v. Marvin Lamar Wilburn
327061
| Mich. Ct. App. | Oct 18, 2016Background
- Three defendants (Campbell — bench trial; Sanders and Wilburn — jury trials) were convicted of armed robbery, carjacking, UDAA, and related weapons offenses for an October 24, 2014 carjacking/robbery of Bernard Ogburn in Detroit; sentences lengthy and substantial for each.
- Evidence: Ogburn’s eyewitness testimony (Sanders struck him with a gun; second gunman pointed a gun; victim pushed/fell); defendants were seen earlier in a stolen black Explorer; police pursuit of the stolen burgundy Explorer ended in arrests; weapons and a Rolex were recovered; each defendant made statements admitting participation.
- Multiple evidentiary challenges: alleged Bruton/Confrontation Clause issues from admission of co‑defendant statements (redacted), failure to produce scout‑car video and a non‑endorsed witness (Christian Flennoy), and admission of other‑acts evidence about the prior theft of a black Explorer.
- Sentencing challenges: defendants disputed scoring of several offense variables (OVs 4,7,9,10,14,19 etc.), and raised Sixth Amendment/Lockridge issues about judicial fact‑finding increasing guidelines minima; court found judicial fact‑finding occurred and ordered Crosby remands.
- Court disposition: convictions affirmed; sentencing remanded for Crosby procedure and several clerical/sentencing corrections (including clarifying habitual‑offender status and correcting concurrency for Wilburn’s felony‑firearm sentence).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of nontestifying codefendants’ statements (Bruton/Confrontation Clause) | Prosecutor: statements were redacted and limited‑use instructions sufficient; any error harmless. | Sanders/Wilburn: admission violated Confrontation Clause despite limiting instruction. | Court: No Bruton violation — statements not facially incriminating; limiting instruction effective; any error harmless given overwhelming evidence. |
| Failure to produce scout‑car video / adverse‑inference instruction | Prosecutor: no video known to exist; no bad faith; not exculpatory. | Defendants: nonproduction denied due process and entitled them to adverse inference. | Court: No Brady/Youngblood violation — no proof video existed, was exculpatory, or was destroyed in bad faith; no adverse‑inference instruction required. |
| Nonproduction/non‑use of witness Christian Flennoy / right to present defense | Prosecutor: Christian not endorsed; no duty to produce; defendants could call her. | Wilburn: prosecutor’s failure denied right to present defense; preliminary testimony should be admitted. | Court: No violation — prosecutor had no duty to produce, no showing Christian was unavailable per MRE 804(a); trial court properly refused adverse inference. |
| Admission of other‑acts evidence (prior theft of black Explorer) | Prosecutor: evidence showed motive, common plan/scheme, and was relevant; limiting instruction given. | Wilburn: evidence unfairly prejudicial and denied due process. | Court: Admissible under MRE 404(b) for motive/plan; probative value not substantially outweighed by unfair prejudice; any error harmless given strong evidence. |
| Sentencing OV scoring and Lockridge Sixth Amendment challenge | State: many OV findings supported by record evidence; no prejudice in some respects. | Defendants: trial court engaged in judicial fact‑finding on OVs, unlawfully increasing guidelines minima. | Court: Agreed Lockridge error occurred for all three; their OV points materially affected guideline cell — remand under Crosby required to determine whether court would impose materially different sentences. |
| Wilburn consecutive sentencing for felony‑firearm vs concealed‑weapon | Prosecutor: (concedes) sentencing structure was improper. | Wilburn: felony‑firearm sentence improperly run consecutive to carrying‑concealed‑weapon. | Court: Plain error — felony‑firearm must be consecutive only to predicate felony; modify judgment to make sentences concurrent on remand. |
Key Cases Cited
- People v Hardy, 494 Mich 430 (Mich. 2013) (defines elements of carjacking and OV7 analysis)
- Bruton v. United States, 391 U.S. 123 (U.S. 1968) (admission of an unredacted confession of a nontestifying codefendant may violate Confrontation Clause)
- Richardson v. Marsh, 481 U.S. 200 (U.S. 1987) (redaction plus limiting instruction can avoid Bruton error when confession does not facially incriminate co‑defendant)
- Lockridge v. Michigan, 498 Mich 358 (Mich. 2015) (judicial fact‑finding to score OVs that mandatorily increase guidelines minima violates Sixth Amendment; guidelines rendered advisory; Crosby remand remedy described)
- Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988) (prosecutor’s failure to preserve potentially useful evidence violates due process only on showing of bad faith)
- People v Frazier, 446 Mich 539 (Mich. 1994) (Bruton/Richardson line — examine redactions and whether inference of identity is attenuated)
- People v Huston, 489 Mich 451 (Mich. 2011) (definition and examples of predatory conduct for OV10)