PEOPLE OF THE STATE OF MICHIGAN, Plаintiff-Appellee, v VICTOR MANUEL GARAY, Defendant-Appellant.
No. 329091
STATE OF MICHIGAN COURT OF APPEALS
April 11, 2017
UNPUBLISHED; Kalamazoo Circuit Court LC No. 2014-000785-FJ
Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.
PER CURIAM.
I. BACKGROUND
This case involves the shooting death of 13-year-old Michael Day on May 26, 2014, on Race Street in the Edison neighborhood of Kalamazoo, Michigan. The Edison neighborhood was home to two gangs: Trapp Money and the Washington Street Boys. Day was a member of the Washington Street Boys and defendant admitted a relationship with Trapp Money.
Defendant, who was 16-years-old at the time of trial, was tried with his two adult male codefendants before separate juries. Testimony was received from many live witnesses. However, two juvenile sisters, N and T, whose preliminary examination testimony placed defendant in the proximity of the shooting, were declared unavailable for trial over the defense’s objection. The parties made a record of the objection but neither the sisters nor their father were examined regarding their unavailability in open court. Instead, the court received information regarding threats made to the witnesses on Facebook and the prosecutor provided information that the father of the two girls communicated that he would not allow them to testify when he
Subsequent to the jury trial, the court was apprised of potential juror misconduct. Specifically, a juror reported that another juror was acquainted with Officer Latham and vouched for his expertise in weapons matters to the jury. Additionally, the juror reported that members of the jury used cell phones during the trial proceedings. Thе court held a hearing on this issue with the reporting juror placed under oath. At the conclusion of that hearing, the court declined to order a new trial.
II. ADMISSION OF THE PRELIMINARY EXAMINATION TESTIMONY OF N AND T
On appeal, defendant argues that the trial court erred in declaring sisters N and T unavailable as witnesses under
During trial, the prosecutor asked the trial court to declare that N and T were unavailable as witnesses under
” ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
- whether the party opposing the testimony “had at a prior proceeding an interest оf substantially similar intensity to prove (or disprove) the same side of a substantially similar issue“; (2) the nature of the two proceedings—both what is at stake and the applicable burden of proof; and (3) whether the party opposing the testimony in fact undertook to cross-examine the witness (both the employed and available but forgone opportunities). [People v Farquharson, 274 Mich App 268, 278; 731 NW2d 797 (2007).]
The trial court did not abuse its discretion in declaring N and T to be unavailable. The decision of N and T’s father not to allow the two sisters to testify is not expressly addressed under
The trial court also did not abuse its discretion in admitting the preliminary examination testimony of N and T under
Defendant also argues that the admission of the preliminary examination testimony of N and T violated his right of confrontation. We review constitutional questions de novo. People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997).
A defendant shall enjoy the right to be confronted with the witnesses against him.
“Former testimony is admissible at trial under both
III. JUROR MISCONDUCT
Defendant next argues that his convictions should be reversed because the jury was subject to extraneous influences. We review a trial court’s decision to grant or deny a motion for a new trial for an abuse of discretion. People v Armstrong, 305 Mich App 230, 241; 851 NW2d 856 (2014).
A defendant has a right to be tried by a fair and impartial jury. Duncan v Louisiana, 391 US 145, 153; 88 S Ct 1444; 20 L Ed 2d 491 (1968). Consistent with this right, a jury may only consider the evidence that is presented in court. People v Stokes, 312 Mich App 181, 187; 877 NW2d 752 (2015). A jury’s consideration of extraneous facts not introduced into evidence deprives a defendant of his constitutional rights of confrontation, cross-examination, and effective assistancе of counsel. Id. To establish that an extraneous influence was error requiring reversal, a defendant must prove two points: (1) the jury was exposed to an extraneous influence and (2) the extraneous influence created a real and substantial possibility that it could have affected the jury’s verdict. People v Budzyn, 456 Mich 77, 88-89; 566 NW2d 229 (1997). To prove this second point, the defendant must “demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extraneous influence and the adverse verdict.” Id. at 89. If the defendant proves these two points, then the burden shifts to the prosecution to demonstrate that the error was harmless beyond a reasonable doubt. Id. The prosecution may do so by proving that “the extraneous influence was duplicative of evidence produced at trial or the evidence of [the defendant’s] guilt was overwhelming.” Id. at 89-90.
Defendant sought to show that the jury was subject to extraneous influences through the affidavit and testimony of Juror DG. Firmly established in the common law is a prohibition against the admission of juror testimony to impeach a jury verdict. People v Fletcher, 260 Mich App 531, 539; 679 NW2d 127 (2004). The only recognized exception to this rule relates to situations in which the jury verdict was affected by an extraneous influence. Id. Thus, where there is evidence to suggest that the verdict was affected by an influence external to the trial proceedings, a court may consider juror testimony to impeach a verdict. Id. But where the alleged misconduct relates to influences internal to the trial proceedings, a trial court may not invade the sanctity of the deliberative process. Id. The distinction between external and internal influences is not based on the location of the alleged misconduct. Budzyn, 456 Mich at 91. “Rather, the nature of the allegation determinations whether the allegation is intrinsic to the jury’s deliberative process or whether it is an outside or extraneous influence.” Id. “Generally speaking, information is deemed ‘extraneous’ if it derives from a source ‘external’ to the jury. ‘External’ matters include publicity and information related specifically to the case the jurors are meant to decide, while ‘internal’ matters include the general body of experiences that jurors are understood to bring with them to the jury room.” Warger v Shauers, 574 US 40; 135 S Ct 521, 529; 190 L Ed 2d 422 (2014) (citation omitted).
Defendant claims that the jury was subject to extraneous influences through their use of cell phones during deliberations. Juror DG testified that jurors, himself included, used their cell phone on breaks. Juror DG used his cell phone for text messaging, and he had no personal knowledge for what purposes the other jurors used their cell phones. Accordingly, defendant has not established that the jury was subject to any extraneous influence through the use of cell phones. Budzyn, 456 Mich at 88-89.
Defendant also claims that the jury was subject to extraneous influences through Juror 8. According to Juror DG, Juror 8 told the jurors that he knew Officer Gary Latham well, that Officer Latham was an expert with firearms, and that they could be extremely confident in Officer Latham’s testimony. Defendant has not estаblished that the jury was subject to an extraneous influence through Juror 8. Id. Internal matters include the general body of experiences that jurors are understood to bring with them to the jury room. Warger, 574 US at 40; 135 S Ct at 529. Juror 8’s statements regarding Officer Latham were based on his own personal knowledge of and experience with the officer. The statements were not based on anything that Juror 8 had read or heard about the case. While Juror 8 should have disclosed his relationship with Officer Latham during voir dire, Juror 8’s statements did not provide him or the other jurors with any
Even if Juror 8’s statements were an extraneous influence, and assuming that there was a real and substantial possibility that the statement could have affected the jury’s verdict, Budzyn, 456 Mich at 89, the error was harmless. Although the testimony from the three witnesses who were with Day when he was shot indicated that the only person they saw with a gun was Perez, Joshua Parker, who lived in the area, testified that, based on the different “pops” he heard, there were at least two, if not three, guns fired. Specifically, regarding defendant, Parker testified that he saw defendant, holding a gun, come down the alley from Race Street to James Street. He identified the gun that defendant had as the .16-gauge shotgun that was later found by Detective Frederick Hug at the basement landing of an abandoned house on James Street. Parker saw defendant put the shotgun in the grass or thickets. About 15 to 20 minutes later, Parker saw defendant run down the alley towards Race Street with the shotgun “laterally” by his knees. Parker then heard multiple gunshots. Within 15 to 20 seconds, Parker saw defendant run down the alley towards James Street. Defendant, who was still holding the shotgun, was “visibly in a hurry.” T, who lived at the corner of Hays Park Avenue and James Street, testified that she heard defendant and Perez talking about “airing out” any members of the Washington Street Boys that they saw. T, as well as N, saw Perez and defendant split up. Perez went down Hays Park Avenue, while defendant went down the alley. After N and T heard gunshots, defendant came to their house. According to them, as well as DeShawndra Spivey, who was visiting the two sisters, defendant was wearing gloves and had bullets with him. Spivey testified that defendant said, “he shot.” Lieutenant Jeffrey Crump, an expert in firearms identification, testified that the shotgun hull found in the alley by Officer Latham, which was a Hornady .20-gauge SST slug, was fired from the .16-gauge shotgun. Lieutenant Crump also testified that the bullet recovered from Day’s chest and the sabot found by Officer Latham on the sidewalk south of the alley were consistent with the bullets and sabots in the Hornady .20-gauge SST slugs that he purchased. Additionally, Officer Latham testified that the bullet he recovered from the tire of the Cadillac, which was parked on Race Street in front of the area where Day was shot, was consistent with a Hornady .20-gauge SST slug and that, because of the location of the hole in the tire, the bullet had to have come from “the north, northeast” of where it had entered the tire. Based on this testimony, the alleged error that exposed the jury to extraneous influence was harmless beyond a reasonable doubt. Budzyn, 456 Mich at 89. The evidence of defendant’s guilt was overwhelming.
IV. SENTENCING
Defendant argues that his sentences for life without parole must be revеrsed because the trial court’s findings and reasons for those sentences did not reflect that he was incapable of rehabilitation. Our review of a trial court’s decision to sentence a juvenile offender to life without parole is threefold: (1) any fact-finding by the trial court is reviewed for clear error; (2) any questions of law are reviewed de novo; and (3) the trial court’s ultimate determination as to the sentence imposed is reviewed for an abuse of discretion. People v Hyatt, 316 Mich App 368; 891 NW2d 549 (2016) (Docket No. 325741); slip op at 25.
The United States Constitution forbids cruel and unusual punishment.
The United States Suрreme Court clarified what a trial court misses if every juvenile offender is treated as an adult:
Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. . . . And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. [Id. at 2468; 132 S Ct at 2468.]2
In Montgomery v Louisiana, 577 US 190; 136 S Ct 718, 734; 193 L Ed 2d 599 (2016), the United States Supreme Court held that Miller applied retroactively to juvenile offenders whose convictions and sentences were final when Miller was decided, and rеiterated that a life-without-parole sentence is cruel and unusual punishment for all juvenile offenders, except for the “rarest of juvenile offenders” whose crimes reflect irreparable corruption.
Following Miller, the Legislature enacted
(5) If the prosecuting attorney files a motion under subsection (2) requesting that the individual be sentenced to imprisonment for life without parole eligibility, the individual shall file a response to the prosecution’s motion within 14 days after receiving notice of the motion. (6) If the prosecuting attorney files a motion under subsection (2), the court shall conduct a hearing on the motion as part of the sеntencing process. At the hearing, the trial court shall consider the factors listed in Miller v Alabama, 567 US 460; 183 L Ed 2d 407; 132 S Ct 2455 (2012), and may consider any other criteria relevant to its decision, including the individual’s record while incarcerated.
(7) At the hearing under subsection (6), the court shall specify on the record the aggravating and mitigating circumstances considered by the court and the court’s reasons supporting the sentence imposed. The court may consider evidence presented at trial together with any evidence presented at the sentencing hearing.
* * *
(9) If the court decides not to sentence the individual to imprisonment for life without parole eligibility, the court shall sentence the individual to a term of imprisonment for which the maximum term shall be not less than 60 years and the minimum term shall be not less than 25 years or more than 40 years.
In Hyatt, 316 Mich App at 368; slip op at 1-2, this Court emphasized that the mandate of Miller, that a sentence of life without parole is reserved only for the rarest of juvenile offenders, affects not only the way a trial court is to exercise its discretion in sentencing a juvenile offender, but also the way an appellate court reviews a life-without-parole sentence. Id. In sentencing a juvenile, a trial court must begin its analysis with the understanding that life-without-parole sentences are, “unequivocally, only appropriate in rare cases.” Id. at 23; slip op at 23. This Court further stated:
We note that nearly every situation in which a sentencing court is asked to weigh in on the appropriateness of a life-without-parole sentence will involve heinous and oftentimes abhorrent details. After all, the sentence can only be imposed for the worst homicide offenses. However, the fact that a vile offense occurred is not enough, by itself, to warrant imposition of a life-without[-]parole sentence. The court must undertake a searching inquiry into the particular juvenile, as well as the particular offense, аnd make the admittedly difficult decision of determining whether this is the truly rare juvenile for whom life without parole is constitutionally proportionate as compared to the more common and constitutionally protected juvenile whose conduct was due to transient immaturity for the reasons addressed by our United States Supreme Court. And in making this determination in a way that implements the stern rebuke of Miller and Montgomery, the sentencing court must operate under the notion that more likely than not, life-without-parole is not proportionate. [Id. at 24; slip op at 24.]
This Court stated that an appellate court’s review of a life-without-parоle sentence requires “a heightened degree of scrutiny.” Id. at 26; slip op at 26. Although a trial court’s decision to impose a life-without-parole sentence is reviewed for an abuse of discretion, an appellate court must view such a sentence as inherently suspect. Id. at 26-27; slip op at 26-27.
At the sentencing hearing, the trial court was aware of Miller. It knew that Miller prohibited mandatory sentences of
In Miller, 567 US at 460; 132 S Ct at 2464, the Unitеd States Supreme Court stated, “the distinctive attributes of youth diminish the penological justifications [which it identified as retribution, deterrence, incapacitation, and rehabilitation] for imposing the harshest sentences on juvenile offenders.” This statement was repeated in Montgomery, where the United States Supreme Court also stated that Miller “established that the penological justifications for life without parole collapse in light of the distinctive attributes of youth.” Montgomery, 577 US at 190; 136 S Ct at 733-734 (emphasis added). There can be no doubt that the trial court’s consideration of the goals of sentencing impacted its decision to sentence defendant to life without parole. The trial court stated that it had to be satisfied that whatever sentence it imposed maximized the goals of sentencing. It further stated that it needed to address the attitude of defendant’s peers that they could “engage in the law of the jungle.” Then, when it sentenced defendant to life without parole, the trial court specifically stated that the sentence served to protect the public and to deter other individuals who might engage in similar conduct. The trial court’s consideration of the goals of sentencing contravened Miller and Montgomery, which established that the goals of sentencing do not justify the imposition of a life-without-parole sentence for a juvenile offender.
Additionally, we cannot say that the trial court began it analysis regarding whether to sentence defendant to life without parole with the understanding that a life-without-parole sentence is only appropriate in rare cases and that such a sentence is more likely than not a disproportionate sentence. Hyatt, 316 Mich App at 368; slip op at 23-24. Although the trial court knew that Miller prohibited mandatory life-without-parole sentences for juvenile offenders and that it was to consider the Miller factors, the trial court never acknowledged the circumstance in which the United States Supreme Court allоwed for such a sentence to be imposed. And nothing said by the trial court indicated that it understood the rarity with which such sentences should be imposed and that such sentences were reserved for the rarest of juvenile offenders whose crimes reflect irreparable corruption. In fact, at one point, the trial court stated that none of the Miller factors were applicable to this case. The statement implies a belief that a life-without-parole sentence can or should be imposed unless there is a mitigating factor not to impose the sentence. Additionally, the trial court’s discussion about gang warfare and the need to address the attitude of people involved in gang warfare reflects a misunderstanding about the rarity of life-without-parole sentences. The discussion was not relevant to whether defendant was and would remain wholly incapable of rehabilitation for the remainder of his life. Hyatt, 316 Mich App at 368; slip op at 29. The court was focused on the punitive and deterrent aspects of sentencing.
In Hyatt, 316 Mich App at 368; slip op at 23-24, this Court emphasized the United States Supreme Court’s statement in Roper, 543 US at 573, that even expert psychologists have a difficult time differentiating between juvenile offenders whose crimes reflect irrepаrable corruption and those whose crimes reflect transient immaturity. At the sentencing
Because the trial court made an error of law in considering the goals of sentencing a youth when it sentenced defendant to life without parole, and because the trial court did not sentence defendant to life without parole with the understanding that such sentences are reserved for the rare juvenile offender whose crime reflects irreparable corruption, we reverse defendant’s sentences for life without parole and remand for resentencing. On remand, the trial court must not only consider the Miller factors and place its findings on the record, but it must also decide whether defendant is the rare juvenile offender who is incapable of reform. Hyatt, 316 Mich App at 368; slip op at 28. The trial court must be mindful that Miller and Montgomery caution against the imposition of a life-without-parole sentence except in the rarest of cases and operate with the understanding that, more likely than not, a life-without-parole sentence is a disproportionate sentence for defendant.3
Affirmed in part, reversed in part, and remanded for resentencing. We retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
People of MI v Victor Manuel Garay
Docket No. 329091
Court of Appeals, State of Michigan
LC No. LC No. 2014-000785-FJ
Cynthia Diane Stephens Presiding Judge; Douglas B. Shapiro; Michael F. Gadola Judges
ORDER
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction.
Proceedings on remand in this matter shall commence within 63 days of the Clerk’s certifiсation of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, we remand this case to the trial court for resentencing for it to not only consider the Miller factors and place its findings on the record, but to decide also whether defendant is the rare juvenile offender who is incapable of reform. The proceedings on remand are limited to these issues.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The transcript of all proceedings on remand shall be prepared and filed within 42 days after completion of the proceedings.
/s/ Cynthia Diane Stephens
April 11, 2017