People of Michigan v. Tyrell Lamar Sheppard
332422
| Mich. Ct. App. | Jul 18, 2017Background
- On Oct. 11, 2015, Hosanna Washington returned to her Kalamazoo apartment; Jamaal Conger, defendant Tyrell Sheppard, and another man were present. Washington saw Conger with a gun; the men searched for money.
- Corwin Jett (Washington’s boyfriend) fled when he returned; Conger chased him. Sheppard left with Washington’s laptop and TV, returned with a gun, then forced Washington at gunpoint into her car, drove her to a nearby lot, asked for her debit PIN, and left in Conger’s car.
- Washington identified Sheppard in a photo and lineup; police later arrested Conger the same day and Sheppard two days later after a traffic stop; a 9mm handgun with ammunition was found in Sheppard’s car and identified by Washington as similar to the robbery gun.
- Sheppard was convicted of armed robbery, kidnapping (later noted in the judgment as MCL 750.349 but conviction was for unlawful imprisonment, MCL 750.349b), and two counts of felony-firearm; sentenced as a fourth-offense habitual offender; remand ordered to correct the sentencing entry.
- At trial Sheppard moved to suppress the gun seized after the traffic stop claiming selective enforcement; the trial court denied the motion. Sheppard raised ineffective-assistance claims (failure to object to hearsay and prosecutorial remarks; failure to request an adverse-inference instruction) and a challenge to OV 12 scoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial counsel ineffective for not objecting to hearsay (Brittany’s testimony about Conger’s texts) | Prosecutor: testimony explained how Brittany assisted police; content not offered for truth but context | Sheppard: testimony was inadmissible hearsay that should have been excluded | Court: Statement was hearsay but counsel’s failure to object was reasonable trial strategy and, in any event, not prejudicial given strong identification and forensic evidence |
| Trial counsel ineffective for not objecting to prosecution remarks (uses of ATM/video/phone records) | Prosecutor: argument was reasonable inference from Detective Baker’s testimony about ATM/video and phone records | Sheppard: prosecutor argued facts not in evidence and overstated records | Court: Remarks were reasonable inferences from admitted testimony; jurors instructed to treat counsels’ statements as argument; objections would have been futile |
| Trial counsel ineffective for failing to request MCL 763.9 adverse-inference instruction for unrecorded custodial interrogation | Prosecutor: detective testified about interview content; instruction could have been requested | Sheppard: interview should have been recorded under MCL 763.8; absence warranted a jury instruction per MCL 763.9 | Court: Even if counsel erred in not requesting instruction, defense had already impeached the detective and the jury was instructed to credit the detective’s statements only if it concluded defendant spoke; no reasonable probability of a different outcome |
| Sentencing — OV 12 scoring for contemporaneous felonious acts (first-degree home invasion) | Prosecution: home invasion occurred within 24 hours and constituted a felonious act against a person — OV 12 scored accordingly | Sheppard: trial court erred in finding by preponderance that he committed first-degree home invasion | Court: Preponderance support existed (uninvited entry, armed, intent to steal while occupant present); 5 points for OV 12 proper |
Key Cases Cited
- People v LeBlanc, 465 Mich. 575 (standard for mixed question of law and fact and ineffective assistance review)
- People v Armstrong, 490 Mich. 281 (two-part ineffective-assistance test)
- People v Musser, 494 Mich. 337 (hearsay definition and exceptions)
- People v Stamper, 480 Mich. 1 (hearsay inadmissibility rule)
- People v Watson, 245 Mich. App. 572 (prosecutor may argue reasonable inferences)
- People v Putman, 309 Mich. App. 240 (no ineffectiveness for failing to raise meritless objections)
- People v Kowalski, 489 Mich. 488 (waiver when defense counsel expresses satisfaction with court’s ruling)
- People v Hardy, 494 Mich. 430 (standard of review for OV scoring; preponderance of evidence)
- Whren v United States, 517 U.S. 806 (selective enforcement claims under equal protection)
- People v Carines, 460 Mich. 750 (plain-error standard requiring effect on outcome)