PEOPLE v BASS
Docket No. 327358
Court of Appeals of Michigan
September 13, 2016
317 Mich App 241
Submittеd September 8, 2016, at Detroit. Leave to appeal denied 501 Mich 871.
The Court of Appeals held:
1. Evidence that defendant had attempted to murder another woman 17 years before he allegedly committed the charged offenses in this case was duly admitted. Defendant‘s identity as the perpetrator was the primary issue at trial. Therefore, the similarities between the attempted murder and the facts known about the victim‘s death in this case had probative value. However, the trial court abused its discretion by admitting sexual-assault evidence from the same prior incident. Nevertheless, reversal was unnecessary because defendant failed to demonstrate that the erroneous admission of the sexual-assault evidence more probably than not resulted in a miscarriage of justice
2. There was sufficient evidence for a rational fact-finder to reasonably infer that defendant was the perpetrator. Defendant was in possession of the victim‘s vehicle after she died, and it was reasonable to infer from the record evidence that he was in possession of her cell phone. He was the last person to report seeing the victim alive, and, after she was found dead, he claimed to be the only person with whom she had been communicating. And yet, cell phone records showed no attempted phone calls or text messages between defendant‘s cell phone and the victim‘s cell phone in the almost two weeks between the date the victim disappeared until the date the victim‘s car was retrieved. It was reasonable to infer that defendаnt was lying about his communication with the victim and that his reason for lying was his desire to suggest the victim was alive when he knew she was not. Defendant‘s differing explanations for why he was in possession of the victim‘s car suggested he was lying to cover up the actual reason (that he took it after killing the victim). The similarities with the previous attempted murder 17 years earlier raised the reasonable inference that defendant was the perpetrator of both assaults. Defendant leaving work early the evening the police located the victim‘s car at his place of employment, his failure to collect his nightly cash pay that evening, and the fact that he never returned to collect that pay raised a reasonable inference that defendant had a guilty conscience. Moreover, the victim‘s credit card that was later found in the parking lot of defendant‘s place of employment was likely left there by defendant in an effort to rid himself of incriminating evidence. The circumstantial evidence and inferences reasonably drawn from it provided sufficient evidence from which a rational trier of fact could have concluded that defendant was the perpetrator of the charged offenses.
3. There was sufficient evidence from which a rational trier of fact could have found defendant guilty of first-degree murder. Defendant argued that the fatal gunshot could have been accidentally fired and thаt there was insufficient evidence of intentional killing, premeditation, and deliberation. However, there were several facts from which a rational trier of fact could infer the killing was intentional, premeditated, and deliberate: (1) the victim was shot in the back of the head, (2) her body was bound with wire and burned using gasoline as an accelerant, and (3) she was found in a deserted location.
4. Felony murder requires killing a human being with the intent to kill, to do great bodily harm, or to create a very high risk
5. There was sufficient evidence for the jury to have found defendant guilty of felon-in-possession. The parties stipulated that defendant had previously been convicted of a felony that made him ineligible to possess a firearm on March 12, 2013. Although the victim went missing on March 10, the jury could infer that defendant shot the victim on March 12 because the body was found in plain sight in an open garage on that day.
6. Felony-firearm simply requires possession of a firearm during the commission of a felony. In this case, there was sufficient evidence to infer that defendant committed first-degree murder and felony murder, both of which are felonies, and the cause of death in both cases was a gunshot wound to the back of the head, raising the reasonable inference that the perpetrator committed the felonies with a firearm. Therefore, there was sufficient evidence from which the jury could have found that defendant committed felony-firearm.
7. A defendant is guilty of mutilation of a human body under
8. Defendant argued that he was denied his right to a fair trial because the prosecution knowingly elicited false testimony from three different witnesses and used that testimony to secure defendant‘s convictions. Defendant failed to show that the testimony was actually false and, therefore, did not meet his burden of demonstrating that the eliciting of the testimony constituted plain error that affected his substantial rights.
9. Defendant was not denied the effective assistance of counsel. Defendant‘s claim regarding counsel‘s failure to file a motion to suppress the arrest warrant failed for multiple reasons. First, defendant cited no record evidence that he ever told his counsel about the alleged false statements supporting the arrest warrant or that counsel failed to investigate the matter. Second, defendant failed to explain why counsel‘s failure to file a motion to suppress the warrant more probably than not affected the outcome of the proceedings. Even assuming the arrest warrant was so deficient that it constituted the metaphorical “poison tree” for purposes of the exclusionary rule, none of the evidence used to convict defendant appeared to be “fruit” of that tree, so none of the evidence would have been suppressed. Therefore, defendant‘s claim failed. Likewise, defendant‘s claim that counsel was ineffective for failing to do additional DNA testing on the victim‘s credit card failed. Not only did defendant misstate the testimony of the prosecution‘s DNA analyst, but defendant‘s argument was that it could have yielded exculpatory evidence. Because additional DNA testing might have yielded incriminating evidence, it was a matter of trial strategy whether to request further testing. Defendant failed to rebut the presumption that trial counsel‘s decision was strategic and effective. Finally, defendant argued that trial counsel was ineffective for failing to consult with and retain an expert in cell phone analysis. Defendant failed to prove that an expert was not retained and consulted with; defendant only showed one was not called as a witness by the defense. In any case, this was also a matter of trial strategy, and defendant failed to rebut the presumption that defense counsel‘s decision was strategic and effective.
10. The circuit court did not abuse its discretion by denying defendant‘s motion to quash. Although the evidence against defendant at the preliminary examination was circumstantial, there was more than enough to satisfy the probable cause standard.
Affirmed.
A defendant is guilty of mutilation of a human body under
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Research, Training, and Appeals Chief, and David A. McCreedy, Lead Appellate Attorney, for the people.
Neil J. Leithauser for defendant.
Before: GADOLA, P.J., and WILDER and METER, JJ.
PER CURIAM. Defendant, Walter Bass III, appeals as of right from his April 15, 2015 jury trial convictions of first-degree, premeditated murder (first-degree murder),
I. FACTUAL BACKGROUND
This case arises out of the March 10, 2013 disappearance of Evelyn Gunter (the victim), whose badly
At the time of her disaрpearance, the victim had an intimate, romantic relationship with defendant. The victim introduced her daughter, Jemmima Gunter, to defendant—who introduced himself as “Tiko“—in December 2012. The victim‘s teenaged grandson, Dalon Gunter, is the last known family member to have seen the victim alive. Dalon last saw the victim around 5:00 p.m. on March 10, 2013. She arrived at his house alone in her red Impala. The victim dropped off some groceries, spoke with Dalon for roughly five minutes, and then left in her vehicle, again alone. Dalon was unaware of her intended destination.
Early the next morning—March 11, 2013, sometime between midnight and 1:00 a.m.—Jemmima received a text message from the victim‘s cell phone stating “that she [the victim] was going to Chicago to help a friend” and would be back the next night. “Chicago” was misspelled, which was unusual because the victim “was a very intelligent person.” Moreover, the victim “had no friends in the Chicago area that [Jemmima] knew of.” Suspecting that the victim was being untruthful about her whereabouts, Jemmima responded via text, accusing the victim of lying to conceal substance abuse.1 In reply, Jemmima received another text from the victim‘s cell phone. On the basis of the tone and content, Jemmima suspected the text message had not actually been sent by the victim. After Jemmima sent another message, “someone” re-
sponded, “I‘m just going to Chicago to help my friend
The next day, Jemmima received another text message from the victim‘s number that appeared to be intended for “someone named Mike” and that contained a request for narcotics, specifically “an eight ball and a 20 bag.” Jemmima responded, “[Y]ou sent that message to the wrong person.” The response from the victim‘s phone number indicated that the text had been sent to “Mike” by the victim‘s “friend,” not the victim.
Daniel Hines is the victim‘s son and was living with her at the time of her disappearance. Hines last saw the victim on March 9, 2013. Thereafter, he noticed that her mail was accumulating, unopened. He later received a call from the victim‘s employer of 15 years indicating that the victim had not been reporting to work. Daniel was concerned and contacted his sister, Jemmima; it was unusual for the victim to be “missing from the house like that.” After the last time Hines saw the victim, he tried calling her several times on her cell phone. At first, “somebody would answer it” but remain silent. Later, around March 12 or March 13 of 2013, Hines called again and heard “a man‘s voice on the phone[.]” Hines asked, “Who is this?” The man responded, “Tiko.”
On the afternoon of March 12, 2013, a burned body was discovered in the garage of an abandoned house in Detroit. Genetic testing subsequently indicated that the body almost certainly belonged to the victim. The body was “burned pretty much beyond recognition,” bound with some kind of wire, and laid оut on a green
An “expert in fire investigation, cause and origin of a fire” subsequently determined that the fire “[o]riginated at the body.” Chemical testing and burn pattern analysis indicated that gasoline was used as an accelerant. In order to “consume bone as with a cremation,” as this fire had, it would necessarily have been “extremely hot.”
On March 13, 2013, Dr. Lokman Sung, who is an assistant medical examiner and was qualified as “an expert in the field of anatomic and forensic pathology,” performed an autopsy on the victim. There were “extensive burns to 100% of the body with consumption of much of the soft tissue, internal organs and fragmentation of most of the bones.” A gunshot wound was discovered, with the entry wound situated in “the left top of the head behind the ear” and the exit wound located in “the left forehead region.” “[T]hree fragments of a nonjacketed bullet” were “recovered from the skull.” Sung determined that the burns were postmortem and occurred after the victim was shot. There “were seven loops of copper wire wrapped around the body.” Sung was unable to determine
whether the wire was wrapped around the victim
Kateesha Bouldin was a patron of Detroit‘s “Club Celebrity” several times in February and March 2013 and met defendant there, where he worked as security. After speaking with defendant briefly on the evening that she met him, Bouldin gave him her cell phone number. Thereafter, she began to regularly receive telephone calls and text messages from defendant that originated from his cell phone number. However, at 2:30 a.m. on March 15, 2013—several days after the victim‘s body was discovered—Bouldin received a telephone call from defendant that originated from the victim‘s cell phone number.
On March 16, 2013, Jemmima received a telephone call from defendant, who inquired whether Jemmima still wanted him to paint her house.3 Jemmima declined. During the conversation, defendant never mentioned the victim or her vehicle, nor did he say anything about trying to return the victim‘s vehicle.
After speaking with her brother, Hines, on March 22, 2013, and learning that the victim “had been no call, no-show to work for all of the days since [Jem-
mima last] talked to her,” Jemmima became very
Later that same day, March 22, 2013, the victim‘s Impala was located outside Club Celebrity. Defendant was working as security at the club that evening. One of the managers knew him by the nickname “Tiko.” Earlier that night, Club Celebrity‘s deejay, Cortlant Smith—who also knew defendant as “Tiko“—had seen defendant arrive at the club alone driving the victim‘s Impala.
Several witnesses gave varying accounts regarding what took place at Club Celebrity on the evening of March 22, 2013. Along with her partner, Sergeant Shannon Jones of the Detroit Police Department (DPD) was dispatched to Club Celebrity after the victim‘s Impala was located using Onstar. The officers discovered the victim‘s Impala in the parking lot of Club Celebrity and, after searching it and finding no signs of “foul play,” had it towed and impounded. Despite the location and the March weather, the vehicle‘s sunroof was open, which led Jones to believe that the person who had parked it was likely still nearby. The Impala was parked just two spaces from Club Celebrity‘s main entrance, where the security personnel—including defendant—were stationed. A leather jacket bearing defendant‘s DNA was recоvered from the Impala‘s rear floor well.
According to Jemmima, after learning that the victim‘s Impala had been located, Jemmima, Hines, and
According to Smith (the deejay), after arriving, the police instructed Smith to make an announcement asking whether anyone present was driving an Impala. After Smith made the requested announcement, defendant “disappeared.”
According to Avria McKelvey, whо is a manager at Club Celebrity and a friend of Jemmima, while the police were trying to gain access to the Impala, defendant approached and asked the police, “What are you doing by my car? What are you doing with my car?” Consistent with McKelvey‘s description, the victim‘s cousin Arbie Campbell testified that defendant approached the police who were “standing around” the Impala and spoke to them, although Campbell was
McKelvey further testified that defendant explained his possession of the Impala to Club Celebrity‘s staff as “a crack rental,” i.e., he claimed that the victim was allowing defendant to “rent” her Impala in exchange for crack cocaine. According to McKelvey, defendant remained at Club Celebrity for an indeterminate period of time after the police arrived, then left abruptly on foot in the middle of his shift without receiving his nightly cash pay. To McKelvey‘s knowledge, defendant never returned to Club Celebrity.
Cleophus Clark, Jr., who is a manager at Club Celebrity, testified that he arrived at Club Celebrity on the evening in question while the victim‘s vehicle was being towed, at which time defendant approached him. Defendant informed Clark that “he gave [the victim] drugs to use her car,” and Clark replied, “I have to call the police.” As Clark called the police, defendant left the club without collecting his nightly pay. Defendant never returned to Club Celebrity. A “cleanup man” found the victim‘s credit card in the Club Celebrity parking lot that evening and passed the card along to the club‘s owner, who in turn passed it to Clark. Eventually, the card was given to the police. Genetic testing performed on the credit card was inconclusive.
According to Campbell (victim‘s cousin), that same evening Campbell initiated a conversation with defendant—who called himself “Tiko“—via cell phone and text message. Campbell asked defendant “if he knew where [the victim] was,” and defendant responded as follows:
He [defendant] told me [Campbell] that he wanted to talk, but he was scared, and he wanted to let us know. He told me that she was okay at first. He was letting me know that she was his aunt. Then he later on was trying to figure out where she was. . . . I told him I was her cousin. He then, after so long, just stopped replying.
During the conversation, defendant indicated that he was “the only person that [the victim] ha[d] been keeping in contact with.”
The next month, on the morning of April 10, 2013, defendant provided the following statement to the police “in his own words” regarding “the nature of his last contact with [the victim]“:
Evelyn [the victim] came to my home to bring me some beer. She met me on my street. While outside talking to [her] she asked me to keep her car for her, and after some discussion I agreed. She said thаt she was going to Chicago with a friend. A few moments later a lady in a Black Ford Fusion pulled up, and Evelyn got out her [sic] car and into the Fusion with the lady whom I heard her being referred to as Lori or Laura.4 Evelyn then asked me did I know where she could get three eight balls from, and I said[,] Yes.’ I then went up the street to a guy I know who sells eight balls and et cetera.
* * *
I motioned for them to drive up the street when he said that he had it. They gave me the money, and I gave it to him and got the eight balls. We then went back up the street and Evelyn showed me how to use the Onstar on her car and gave me the proof of insurance and registration. Evelyn then got back in the Fusion and drove off. I haven‘t seen or spoken to Evelyn since that date.
Sergeant Michael McGinnis of the DPD was qualified, without objection, “as an expert in the field of historical cell phone record analysis and tower mapping.” From March 14, 2013, through March 23, 2013, there were 15 incidents when the viсtim‘s cell phone and defendant‘s cell phone “were communicating with the same sector, same tower within the city of Detroit.” From March 10, 2013, until March 23, 2013, there were no attempted phone calls or text messages between defendant‘s cell phone and the victim‘s cell phone. But on March 23, 2013—after the victim‘s Impala was located—10 separate communications took place between those phones. The last recorded communication between the victim‘s cell phone and a cell phone tower took place on March 23, 2013, at which time the cell phone was in communication with the tower that services the area where Club Celebrity is situated. After she disappeared, the “home tower” of
the victim‘s cell phone (i.e., the cell phone tower most
Defendant elected not to testify at trial and was convicted and sentenced as noted earlier. The instant appeal ensued.
II. ANALYSIS
A. OTHER-ACTS EVIDENCE UNDER MRE 404(b)
On appeal, defendant first argues that the trial court abused its discretion by holding that other-acts evidence was admissible under
“We review for an abuse of discretion a trial court‘s decision to admit or exclude evidence,” while reviewing de novo any preliminary legal questions regarding admissibility. People v Mann, 288 Mich App 114, 117;
The other-acts evidence at issue in this case involves the testimony of two prosecution witnesses: (1) CB, whom defendant sexually assaulted and tried to murder in 1996, and (2) retired detective Robert Henderson, the officer to whom defendant provided a signed admission that he had assaulted CB. CB testified that, on the evening of October 8, 1996, she was alone at her house in Detroit when defendant stabbed and sexually assaulted her. At the time, CB was a 19-year-old college student. She had known defеndant since middle school and considered him to be a friend. Defendant came to CB‘s house around 8:30 p.m. and knocked on the door. She let him in and the two watched television, then “messed around a little bit,” with defendant performing oral sex on CB. CB “made him stop,” after which they sat together and watched more television. Defendant asked CB if she had “any rope or tape or something because it was cold and he needed to do something to the windows.” Defendant then left briefly. After calling a friend, CB realized that she was uncertain whether she had locked the door after defendant left. As CB walked back to the door to ensure that it was locked, defendant let himself back into the house. CB “felt nervous“; she had not expected defendant to return. CB and defendant walked back to the den. CB informed defendant that she had to go pack some clothing because a friend of hers was on the
Eventually CB emerged, thinking that perhaps there was nothing wrong and that it was “just [her] nerves.” Defendant was standing in the hallway. As CB stepped past him, she felt a “puncture” in her back. She reached back and touched the area. When she pulled her hand away, “it was full of blood.” CB tried to run, but defendant “grabbed [her] from behind” and “started slicing [her] neck” with a knife. CB continued to struggle as defendant stabbed her repeatedly—more than 20 times. She broke loose, but defendant grabbed her again and started “slicing” her neck again. Defendant dragged her to the basement. CB tried “to play dead,” but when defendant poured a liquid of some kind6 on her—which smelled like gasoline—CB coughed. In response, defendant “socked” her in the jaw and said, “Why won‘t you die, bitch?” CB “just laid there quiet.” Defendant mounted her, sexually assaulted her vaginally, and then wrapped her up in “a carpet or something.” While wrapped up, CB heard defendant slip and fall, after which he unwrapped her and placed her on a couch. At that point, CB‘s mother arrived home and called CB‘s name, and defendant fled. The police were summoned, along with an ambulance. CB informed the first responders that defendant was the person who had assaulted her.
Detective Henderson subsequently interviewed defendant, who provided a signed statement. A copy of defendant‘s statement was admitted into evidence over
I just had a rage. When I came in the house, she was on the phone. I started to look at TV, Tool Time, and after it ended we were just talking. She went into the bedroom, and a short time later she came out. That is when the rage came over me. At first we were just fighting. Then I pulled out a knife I had on me, a kitchen knife. All I remember is stabbing at her. I then took her downstairs to the basement. I was just walking around looking at her and all of the blood.
* * *
Until her mother came home, then I ran out the side door.
While speaking with Detective Henderson, defendant denied having sexually assaulted CB, insisting: “We had sex, but it was before the fight. I never had sex with her after the fight[.]”
In pertinent part,
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Similarly,
In any criminal case where the defendant‘s motive, intent, the absence of, mistake or accident on his part, or the defendant‘s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant
which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant‘s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.
Other-acts evidence is admissible only if
(1) the evidence is offered for some purpose other than under a character-to-conduct theory, or a propensity theory, (2) the evidence is relevant to a fact of consequence at the trial, and (3) the trial court determines under MRE 403 that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. If requested, the trial court may provide a limiting instruction under MRE 105. [People v Ackerman, 257 Mich App 434, 440; 669 NW2d 818 (2003).]
“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
In ruling on this issue, the trial court treated CB‘s testimony as if it involved just one prior bad act. Conceptually, however, we conclude that the testimony
1. ATTEMPTED-MURDER EVIDENCE
Contrary to defendant‘s argument on appeal, the evidence regarding his attempt to murder CB bears logical relevance to a fact of consequence in this case, specifically whether defendant is the person who shot and killed the victim, then tried to dispose of her body using fire. Moreover, given the similarities, the evidence regarding the CB incident tends to show defendant‘s scheme, plan, or system in committing the charged offenses.
Defendant contends that there is little, if any, factual similarity between his assault against CB and the facts here. We disagree. Although there are certain differences, there are a number of notable similarities: (1) CB was attacked from behind and, similarly, the victim here was shot from behind (in the back of the head), (2) both are women defendant had known for a substantial time, (3) both are women with whom defendant had some sexual7 relationship at the time of offense, (4) defendant poured a liquid that smelled like gasoline on CB, and, similarly, gasoline was used as an accelerant to burn the victim‘s body, and (5) after stabbing her and slitting her throat, defendant wrapped CB “in a carpet or something,” and, similarly, the victim‘s body was found bound with wire atop a plastic tarp. Thus, it seems that evidence of the CB incident was both offered for a purpose other than
It is a closer question whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Obviously, the testimony regarding defendant‘s brutal assault against CB when she was a teenager was highly prejudicial. As defendant admits in his appellate brief, however, given the circumstantial nature of the proofs against him, his identity as the perpetrator was a “primary” issue at trial. Accordingly, the similarities between his assault against CB and the facts known about the victim‘s death had a heightened probative value. Given the balancing nature of this inquiry, and the fact that this scenario presents a close call, we do not find the trial court‘s ruling in this regard to be an abuse of discretion. See Cameron, 291 Mich App at 608 (“[A] trial court‘s decision on a close evidentiary question ordinarily cannot be an abuse of discretion.“). The decision to admit the attempted-murder evidence fell within the range of reasonable and principled outcomes.
2. SEXUAL-ASSAULT EVIDENCE
Conversely, we conclude that the trial court abused its discretion by admitting CB‘s testimony that defendant sexually assaulted her. Such testimony has no seeming relevance to a fact of consequence in this case. Defendant was not charged with criminal sexual conduct here, and there is no evidence that the victim in this case was ever sexually assaulted. Given its lack of relevance, the only logical purpose for the introduction of the sexual-assault evidence was the improper character purpose, i.e., prоof that defendant is a bad person and therefore probably committed the charged offenses.
3. REVERSAL IS UNWARRANTED
Even so, reversal is unwarranted. Reversal of a criminal conviction on the basis of a trial court‘s erroneous evidentiary ruling is only necessary when the error prejudiced the defendant and resulted in a miscarriage of justice.
Although the evidence in this case was largely circumstantial, in ruling on defendant‘s motion for a directеd verdict, the trial court aptly reasoned that the circumstantial evidence was “overwhelming” of defendant‘s guilt. As discussed further later, we agree with
B. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues that there was insufficient evidence to support his convictions. We disagree.
1. IDENTITY
“[I]dentity is an element of every offense.” People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Defendant‘s primary argument on appeal is that, although the prosecution proved that someone committed the charged offenses, it failed to prove beyond a reasonable doubt that defendant was the perpetrator. After plenary review of the record evidenсe, we conclude that there was sufficient evidence for a rational fact-finder to reasonably infer that defendant was the perpetrator.
From the evidence that defendant (1) left work early on March 22, 2013, after the police located the victim‘s car at Club Celebrity, (2) did not collect his nightly cash pay, and (3) never returned to collect that pay, it is reasonable to infer that defendant had a guilty conscience. People do not generally perform work at a paid
Moreover, defendant‘s differing explanations for why he was in possession of the victim‘s Impala suggest that he was lying to cover up the actual reason (that he took the vehicle after killing the victim). Defendant explained his possession of the Impala to Club Celebrity‘s staff as “a crack rental,” i.e., he claimed that the victim was allowing defendant to “rent” her Impala in exchange for crack cocaine. But he told Jemmima and the police that the victim had entrusted him to keep her Impala while she traveled to Chicago. When Jemmima asked defendant, “When you called me оn the 16th, why didn‘t you tell me then you had my mom‘s car?” defendant “really didn‘t have an answer.”
Given the circumstantial evidence and the inferences fairly drawn from it, there was sufficient evidence for a rational trier of fact to conclude that defendant was the perpetrator of the charged offenses. Aside from identity, however, defendant also argues that there was insufficient evidence to support each of the essential elements of the offenses for which he was convicted. We will examine each offense in turn.
2. FIRST-DEGREE MURDER
“The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation
Defendant argues that the fatal gunshot “could have been accidentally fired,” and that, therefore, there is insufficient evidence of an intentional killing, of premeditation, and of deliberation. There are several facts, however, from which a rational trier of fact could infer that the killing was intentional, premeditated, and deliberate, most notably: (1) the victim was shot in the back of the head, (2) her body was bound with wire and burned using gasoline as an accelerant, and (3) she was found in a deserted location. Moreover, the reasonable inferences from the evidence that support defendant‘s identity as the perpetrator also support an inference that the killing was intentional, premeditated, and deliberate. Therefore, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the prosecution, there was sufficient evidence for a rational trier of fact to find defendant guilty of first-degree murder.
“The elements of felony murder are (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in
It is undisputed that the victim was killed, and the fact that the victim was killed by a gunshot to the back of her head is sufficient for a rational fact-finder to reasonably infer that the gunshot was inflicted with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result. Thus, the first two elements for felony murder were satisfied. Moreover, given the evidence that defendant was in possession of the victim‘s Impala and her cell phone following her death, it is reasonable to infer that defendant killed the victim during the commission, or attempted commission, of a larceny of any kind. Hence, there was sufficient evidence for a rational trier of fact to find defendant guilty of felony murder.
4. FELON-IN-POSSESSION
Felon-in-possession is a statutory offense that is set forth by
Regarding the felon-in-possession conviction, at trial, rather than introducing the judgments of sentence from defendant‘s prior felony convictions, the parties stipulated that defendant had previously been convicted of a felony that made him ineligible to possess a firearm on March 12, 2013. It is unclear from the record why the stipulation focused solely on March 12, 2013, which is the day that the victim‘s body was discovered but two days after she disappeared.
Nevertheless, despite the inexact stipulation, there was sufficient evidence for a rational trier of fact to conclude that defendant possessed a firearm on March 12, 2013—when he was ineligible to do so—and used that firearm to shoot and kill the victim. Specifically, such an inference was reasonable on the basis of the evidence that, although it was in plain sight within the open garage, the victim‘s body was not found until the afternoon of March 12, 2013. In other words, a rational juror could reasonably infer that defendant shot the victim on March 12, 2013—not on March 10 or March 11.
5. FELONY-FIREARM
Felony-firearm is set forth by
As we have previously explained, there was sufficient evidence for a rational fact-finder to infer that defendant committed first-degree murder and felony murder, both of which are felonies. From the evidence that the victim‘s cause of death was a gunshot to the back of the head, it is reasonable to infer that defendant possessed a firearm during the commission of those felonies. Ergo, there was sufficient evidence for a rational fact-finder to find defendant guilty of felony-firearm.
6. MUTILATION OF A HUMAN BODY
No published authority has yet set forth the essential elements of mutilation of а human body under
A person, not being lawfully authorized so to do ... who shall mutilate, deface, remove, or carry away a portion of the dead body of a person, whether in his charge for burial or otherwise, whenever the mutilation, defacement, removal, or carrying away is not necessary in any proper operation in embalming the body or for the purpose of a postmortem examination, and every person accessory thereto, either before or after the fact, shall be guilty of a felony, punishable by imprisonment for not more than 10
years, or by fine of not more than $5,000.00. This section shall not be construed to prohibit the digging up, disinterment, removal or carrying away for scientific purposes of the remains of prehistoric persons by representatives of established scientific institutions or societies, having the consent in writing of the owner of the land from which the remains may be disinterred, removed or carried away. [ MCL 750.160 .]
Using a plain language analysis involving dictionary definitions, an unpublished opinion of this Court recently interpreted the statute as follows:
Black‘s Law Dictionary (8th ed) defines “mutilation” as the “act of cutting off or permanently damaging a body part.” To “mutilate” is otherwise defined as “to injure or disfigure by removing or irreparably damaging parts.” Random House Webster‘s College Dictionary (2001). To “deface” means “to mar the surface or appearance of; disfigure.” Random House Webster‘s College Dictionary (2001). To “remove” means “to move or shift from a place or position.” Random House Webster‘s College Dictionary (2001). Thus, according to the plain language2 of the statute, a person may not cause irreparable or permanent damage or injury to, change the appearance of, or remove a portion of, the dead body.
[People v Peña, unpublished opinion of the Court of Appeals, issued March 13, 2008 (Docket No. 275508), p 3.]
We agree with this persuasive analysis. Accordingly, we hold that a defendant is guilty of mutilation of a human body under
Hence, it is clear that there was sufficient evidence for a rational fact-finder to find defendant guilty of mutilation of a human body. As we have explained, it is reasonable to infer from the record evidence that defendant shot and killed the victim. In turn, it is reasonable to infer that defendant is the person who attempted to conceal the murder by burning the victim‘s body with gasoline. The body was almost totally charred, and portions of it were entirely consumed by the fire. The damage was so serious that it could not be visually determined by Dr. Sung whether the body belonged to a male or a female. And it is reasonable to infer from the record evidence that defendant lacked any legal authority to burn the victim‘s body. Therefore, there was sufficient evidence that defendant irreparably damaged a portion10 of the body and defaced it, and his conviction of mutilation of a dead body should be affirmed.
C. PROSECUTORIAL MISCONDUCT11
In his pro se Standard 4 brief, defendant argues that he was denied his right to a fair trial when the prosecution knowingly elicited “false” testimony from three different witnesses and used that testimony to secure defendant‘s convictions. Because defendant did not object in the trial court to the testimony in question, this issue is unpreserved, and our review is for plain error affecting defendant‘s substantial rights. See Bennett, 290 Mich App at 475. “To avoid forfeiture, the defendant bears the burden to show that (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error prejudiced substantial rights, i.e., the error affected the outcome of the lower court proceedings.” Cameron, 291 Mich App at 618. In this case, because defendant has failed to show that the testimony elicited by the prosecution was actually false, he cannot meet his burden of demonstrating that the elicitation of such testimony constituted plain error that affected his substantial rights.
It is well settled that a conviction obtained through the knowing use of perjured testimony offends a defendant‘s due process protections guaranteed under the Fourteenth Amendment. If a conviction is obtained through the knowing use of perjured testimony, it must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Stated differently,
Defendant first challenges Hines‘s testimony that, after Hines last saw the victim, he placed calls to the victim‘s cell phone that were answered. Defendant incorrectly contends that the victim‘s cell phone records “indicate that at no time was there a[n] answered call from ... Hines[‘s] number ... or from any other number.” Accordingly, defendant argues, Hines‘s testimony was false.
Hines testified that, after he last saw the victim on March 9, 2013, he tried calling her several times on her cell phone. According to Hines, at first, “every time [he] call[ed] her phone, somebody would answer it, and it be [sic] quiet.” Later, “about” March 12 or March 13 of 2013, Hines called again and heard “a man‘s voice on the phone[.]” Hines asked, “Who is this?” The man responded, “Tiko.” Notably, in his testimony, Hines did not specify that he called the victim exclusively from his own cell phone. Also, he was uncertain regarding the specific dates on which he called, and consequently he provided an approximate date: “about the 12th оr the 13th” of March 2013. Therefore, the telephone calls about which Hines testified could have originated from a number other than his cell phone number and might have taken place on days other than March 12 or March 13 of 2013.
For similar reasons, defendant‘s claim of error regarding Bouldin‘s testimony also necessarily fails under plain error review. On the basis of Bouldin‘s prior statements that she could not “recall” the specifics of such a call, defendant argues that Bouldin‘s testimony that she received a call from defendant on March 15, 2013, was actually false.
Defendant‘s argument is entirely unconvincing. First, Bouldin‘s trial testimony is not inconsistent with her prior statements. The fact that Bouldin remembered the specifics of the call at trial, whereas she had been unable to in previous statements, is explained by
Finally, defendant asserts that the prosecution knowingly elicited false testimony from CB. Specifically, given the fact that in a prior statement to the pоlice CB described the liquid that defendant poured on her as “water,” defendant contends that her trial testimony that the liquid smelled like gasoline was necessarily false. Again, however, the existence of a prior inconsistent statement is not evidence that CB‘s trial testimony was actually false. Although defendant‘s trial counsel used the prior inconsistent statement, on cross-examination, to impeach Bouldin‘s credibility, it does not definitively prove that her trial testimony was false.
D. EFFECTIVE ASSISTANCE OF COUNSEL
The next argument presented in defendant‘s Standard 4 brief is that his trial counsel performed ineffec-
Defendant first argues that, despite the fact that his trial counsel was purportedly aware of false statements in the subscribing officer‘s statement, counsel failed to investigate the matter or to file a motion to “suppress” defendant‘s arrest warrant. For dual reasons, defendant‘s claim of error merits no relief. First, defendant has failed to prove the factual predicate of his claim. He has cited no record evidence that he ever told his trial counsel about the alleged “false statements” supporting the arrest warrant, nor has he cited any record support for his claim that counsel failed to investigate the matter. Second, defendant offers no explanation of how or why counsel‘s failure to file such a motion to “suppress” the arrеst warrant more probably than not affected the outcome of the lower court proceedings. This Court will not supply such argument on his behalf. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position. The appellant himself must first adequately prime the pump; only then does the appellate well begin to flow.“). And even assuming,
Defendant‘s second ineffective assistance argument is that his counsel performed ineffectively by failing to file a motion seeking additional DNA testing of the victim‘s credit card, which, defendant contends, could have uncovered exculpatory evidence that someone other than the victim or defendant had been in possession of that card. In support, defendant claims that Andrea Young, one of the prosecution‘s expert witnesses in DNA analysis, testified that defendant “was excluded as a DNA donor to the credit card and that the major donor to the credit card was from a[n] unknown person[.]”
Defendant misstates Young‘s testimony. She did not testify that defendant was “excluded” as being one of the several “donors,” i.e., people whose DNA was discovered on the credit card. On the contrary, Young testified that the sample drawn from the credit card provided “a partial profile with a mixture of at least two individuals,” at least one of whom was male. Defendant was “excluded as being a major donor” in the credit card sample, but it could not be determined whether he was a “minor donor.”
In any event, on this record defendant‘s argument is entirely unpersuasive. Defendant argues that addi-
Moreover, defendant‘s argument fails to recognize that counsel‘s decision is presumed to have been a matter of trial strategy. See People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002) (“Decisions regarding what еvidence to present and whether to call or question witnesses are presumed to be matters of trial strategy.“). “Defense counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). Accordingly, there is a “strong presumption that trial counsel‘s performance was strategic,” and “[w]e will not substitute our judgment for that of counsel on matters of trial strategy[.]” Id. at 242-243. Given the fact that Young‘s testing of the credit card was inconclusive—i.e., she could neither exclude defendant as a DNA donor nor include him as one—defense counsel might have reasonably concluded that a motion for additional DNA testing would have been imprudent. Put differently, counsel might have reasonably feared that additional testing could have revealed inculpatory DNA evidence from which it could be determined that defendant‘s DNA was on the credit card. Hence, defendant has failed to rebut the strong presumption that his trial counsel‘s decision in this regard was both strategic and effective.
Finally, defendant argues that his trial counsel performed ineffectively by failing to consult with and
E. MOTION TO QUASH
After he was bound over on the charges against him in district court, defendant filed a motion to quash in the circuit court, arguing that there was insufficient evidence presented at the preliminary examination to satisfy the applicable probable cause standard. The circuit court denied defendant‘s motion. In the final argument in his Standard 4 brief, defendant argues that the circuit court abused its discretion by so ruling. We disagree.
“A district court magistrate‘s decision to bind over a defendant and a trial court‘s decision on a motion to quash an information are reviewed for an abuse of discretion.” People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011). However, “[t]o the extent that a lower court‘s decision on a motion to quash the information is based on an interpretation of the law, appellate review of the interpretation is de novo.” People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010).
Although the evidence presented against defendant at the preliminary examination was circumstantial, there was more than enough to satisfy the probable cause standard. Most notably, there was testimony (1) that defendant saw the victim on the evening that she disappeared, (2) that he possessed the victim‘s cell phone and used it to call Bouldin after the victim had been discovered dead, (3) that he possessed and used the victim‘s car after she died, (4) that he abruptly left Club Celebrity in the middle of his shift after Clark called the police, (5) that the victim‘s cell phone “went dark” that same night near Club Celebrity, and (6) that the next day the victim‘s credit card was located in the parking lot of Club Celebrity. Such evidence was more than ample to lead a рerson of ordinary prudence and caution to conscientiously entertain a reasonable belief
Affirmed.
GADOLA, P.J., and WILDER and METER, JJ., concurred.