Lead Opinion
Defendant was convicted by a jury of five counts of assault with intent to do great bodily harm less than murder, MCL 750.84, one count of second-degree murder, MCL 750.317, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him to 5 to 10 years’ imprisonment for each of his assault with intent to do great bodily harm less than murder convictions and to 30 to 60 years’ imprisonment for the second-degree murder conviction, all to be served concurrently. The court also imposed a mandatory two-year felony-firearm sentence, to be served consecutively as provided by the felony-firearm statute. Defendant appeals his convictions and sentences. We affirm defendant’s convictions but vacate his sentences and remand for resentencing.
The victims in this case were part of a group of friends who went to downtown Detroit to celebrate the graduation of Carlos Spearman. The group consisted of Spearman, Courtney “Cortez” or “Tez” Smith, DeMario Drummond, Philip Knott, Raleigh Ross, Zachery Easterly, Raymond Malone, and Ron Banks. Some of the friends were football players at Wayne State University at the time. Spearman and a few of the others were drinking, but Smith was not drinking and served as the group’s designated driver that evening. After being denied access to Club Envy because the bouncer deemed Spearman too intoxicated, the group headed to a Coney Island for him to sober up. On the way, the group encountered some men handing out fliers; one of the friends recalled that ámong the people handing out fliers was defendant’s eventual codefendant, Quintin King.
Also on the way, Easterly decided to relieve himself in an alley in which Courtney’s car was parked. Also parked there was another car, and while he was urinating, several people approached Easterly, one of whom expressed concern that Easterly was urinating on the person’s car. The friends’ recollections of how many people were in the approaching group varied, but several of them identified King, who proceeded to punch Easterly. Several of the friends also identified defendant as a member of the group.
The two groups exchanged some words, and King said to Ross, “ ‘[W]e got a big fellow here. Here, got something for you.’ ” Then defendant flashed a gun he had in his pants at the group of friends. Defendant also commanded the group of friends to back up, and they obliged. Malone then heard King say to defendant, “ ‘Give me the Mag. Give me the Mag.’ ” Defendant then apparently passed the gun to King. Smith tried to neutralize the fight once the gun was shown. King then fired a shot into the pavement, and the group of friends fled, or attempted to flee, for safety. Spearman was shot in the leg, and Smith was fatally shot through his airway. Ten .45-caliber bullet casings were found at the scene.
Allante Mosley,
Defendant first argues that his identification by four witnesses was the product of impermissibly suggestive pretrial procedures that led to an irreparable misiden-tification. In particular, he argues that the photographic arrays were improper and that an expert witness should have been presented on the topic of eyewitness identification. Defendant argues that eyewitness identification is the least reliable kind of evidence in a criminal conviction, stating that there have been 250 exonerations based on DNA, 76% of which involved misidentification as a factor. Defendant relies on a recent New Jersey Supreme Court holding that discussed problems with identification testimony and a standard for how to judge the reliability of identification testimony. State v Henderson, 208 NJ 208; 27 A3d 872 (2011). He also argues that his in-court identification was highly unreliable and likely the product of false memories; for example, he argues, Knott identified him because he was one of the “ ‘only brothers sitting at the table,’ ” and this occurred almost two years after the incident. He argues that there was no independent basis
A trial court’s decision to admit identification evidence will not be reversed unless it is clearly erroneous. Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. People v McDade,
Defendant is of course correct in asserting that “identification was the key issue in this case,” so we agree that the propriety thereof is highly significant. We are aware that the state of New Jersey has expounded on the scientific evidence tending to show that eyewitness testimony is inherently unreliable. See Henderson, 208 NJ at 248-283. However, that case is not binding on this Court. See People v Jamieson,
We note that Michigan is not unfamiliar with the concept that human memory and perception are fallible. The standard jury instruction, which the trial court properly gave to the jury, clearly requires the jury to evaluate how reliable any witness’s identification might have been. Defendant had ample opportunity to argue why the specific witnesses against him should have been deemed unreliable, including why he believed Knott’s identification must be guesswork. We perceive no reason why placing defendant’s photograph first in a lineup is inherently suggestive, and in a random assortment the first slot is no less likely than any other. Defendant contends that the lineups were not “double blind,”
Trial counsel is presumed to have been effective, and defendant must prove otherwise. People v Vaughn,
Trial counsel’s strategy was to persuade the jury that defendant was merely present at the scene of the crime and that he had no involvement in the shooting. As the lower court found in its decision on defendant’s motion for new trial, counsel made strategic and reasonable choices in light of his trial strategy. His cross-examination of witnesses worked with the court’s instructions on identification: he impeached witnesses on issues of intoxication, lighting, distance, discrepancies in descriptions, and the amount of time each witness had to make an observation. Although defendant believes that additionally presenting an expert on eyewitness testimony would have been helpful, and defendant may even be right, that counsel could conceivably have done more, or that a particular trial strategy failed, does not mean counsel’s performance was deficient. People v Petri,
With respect to the court’s instruction regarding identification, seeking an alternative instruction would have been inconsistent with counsel’s strategy, which, as already noted, tied into the instruction given. In any event, defendant urges the adoption of an instruction based on authorities not binding in Michigan, and trial counsel is generally not ineffective for failing to make a novel argument. People v Reed,
Claims of instructional error are reviewed de novo. People v Hall,
We have already discussed why the standard jury instruction regarding identification was appropriate in the instant matter. Defendant distinguishes Robinson by asserting that the codefendants in Robinson were friends, whereas there was no evidence here that defendant and King even knew each other. We find such an argument unavailing in the face of evidence that defendant handed King an apparently loaded gun. We find it highly unlikely that anyone would simply hand over a gun to a complete stranger during a group confrontation, and even if someone did, it would reflect the most colossal and egregious disregard for the predictable result of that gun being discharged at another person. In Robinson, our Supreme Court reiterated that the necessary intent for second-degree murder is “the intent to kill, the intent to inflict great bodily harm, or the willful and wanton disregard for whether death will result.” Robinson,
Defendant next argues that the prosecutor committed misconduct and denied him a fair trial when the prosecutor told the jury that it could convict him based on a team theory of guilt, asked for sympathy for the deceased, argued facts not in evidence, used inflammatory and religious arguments, denigrated defense counsel, and misstated the law. A general claim that the defendant was denied his or her due-process right to a fair trial is a claim of nonconstitutional error, and defendant has not asserted that a specific constitutional right was violated. See People v Blackmon,
Defendant argues that the prosecutor not only denied him a fair trial by comparing the aiding-and-abetting theory of criminal culpability to teamwork, but that when coupled with the jury instruction, the burden of proof was shifted to him. We disagree. The prosecutor’s references to the way in which all members of a sports team share in the team’s victory was obviously a metaphor. Importantly, the trial court clearly instructed the jury that the arguments of counsel were not evidence. Unlike the instruction in Sandstrom v Montana,
Defendant next argues that the prosecutor imper-missibly asked for sympathy for the deceased. While the prosecutor used language that invoked grisly imagery of “transporting this young college student, this Wayne State University football player into a piece of meat sitting on a slab,” we do not think that language exceeds the bounds of permissibility. Further, the prosecutor’s argument that Knott’s lack of cooperation with authorities was because of Knott’s perception that “snitches end up in ditches” was a reasonable circumstantial inference, one that the jury may have made on its own. See People v Bahoda,
The prosecutor’s use of a biblical reference could have appealed to a juror’s sense of religious duties, but in context, the quotation was merely a somewhat hyperbolic reference to the deceased victim as someone who had attempted to make peace that evening. It was not a reference to any religious beliefs per se, see People v Jones,
Defendant next argues that the evidence was insufficient to support his convictions. He concedes that the evidence was sufficient for the jury to find that he displayed the gun, fired it into the ground, and handed it to King. However, he contends that this evidence is insufficient to prove beyond a reasonable doubt that he aided and abetted second-degree murder.
Evidence is sufficient if, when viewed in the light most favorable to the prosecution, “a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.” People v Hampton,
The elements of assault with intent to do great bodily harm less than murder are: “(1) an attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.” People v Parcha,
Defendant contends that because King fired into the ground and Spearman
We also disagree with defendant’s contention that the evidence was insufficient to find him guilty of aiding and abetting second-degree murder. King was convicted of first-degree murder. The passing of the gun unambiguously rendered assistance to the commission of that crime and, indeed, was an indispensable part of the crime. We reject defendant’s contention that he was unaware of what King intended to do with the gun or did not intend the gun to be used in the way that King used it. There are a limited number of conceivable reasons why an angry individual presently involved in a violent confrontation might demand that a gun be handed to him, and most of them tend not to end in the gun going unused. There are, likewise, a limited number of conceivable ways in which a loaded gun can be used. The overwhelmingly likely inference is that defendant either knew that King intended to discharge the gun or intended for King to discharge the gun. Consequently, we find that the evidence is sufficient to support defendant’s convictions.
Defendant’s final argument regarding his convictions is that he is entitled to a new trial on the basis of newly discovered evidence from Todd regarding Mosley’s alleged involvement in the crimes. Defendant contends that the evidence provided by Todd will prove the following: (1) Todd met Mosley at the Wayne County Jail, (2) Mosley admitted to Todd that he, not King, killed the football player from Wayne State, (3) Mosley told Todd that defendant was not involved, and (4) Mosley told Todd that defendant never passed Mosley the gun.
“Historically, Michigan courts have been reluctant to grant new trials on the basis of newly discovered evidence.” People v Grissom,
We note first that Todd’s testimony is to some extent corroborated by an official report that Mosley actually attempted to confess to a murder while in jail. However, it is undermined to an equal extent by the fact that it appears that nothing came of that purported confession. The fact that Mosley made a clear and obvious statement against his own penal interest by stating that he was responsible for “ ‘the Wayne State Murder’ ” and was the person who “ ‘grabbed the gun’ ” and “ ‘shot him’ ” tends to exonerate King, and, to the extent Mosley also stated that defendant was uninvolved, this testimony would also exonerate defendant. Furthermore, Mosley’s awareness that the altercation that resulted in the murder began because “ ‘somebody pissed on something’ ” suggests more than casual knowledge of the circumstances of the case. However, again undermining the testimony, Todd said this admission came up because everyone was calling Mosley a snitch in jail because he may have leaked information about the Wayne State murders, but Mosley told them that “ T can’t be a snitch against myself,’ ” implying that he committed the murders. The circumstances therefore suggest that it was strongly to Mosley’s immediate benefit to claim to be a murderer rather than a snitch. We note also that the eyewitnesses were shown photographs of Mosley and denied that he was the shooter, and the jury reviewed photographs of Mosley, defendant, and King.
On its face, the proffered evidence is highly equivocal. Todd testified at the hearing on defendant’s motion for a new trial, and the trial court thus had a better opportunity than this Court to observe and evaluate his credibility. See People v Canter,
Lastly, defendant argues that the trial court improperly enhanced his sentence by scoring Offense Variable (OV) 5 at 15 points on the basis of facts not found by the jury and that, without the improperly considered evidence, OV 5 should have been scored at zero points. The trial court commits plain error when it calculates an OV score “using facts beyond those found by the jury or admitted by the defendant” if that miscalculation “would
Even though defendant’s minimum sentence of 360 months lies within both the scored and the corrected minimum sentence ranges, because the sentence range itself has changed, our Supreme Court’s historical interpretation of the sentencing guidelines would constrain us to vacate defendant’s sentence and remand for resentencing. People v Francisco,
We affirm defendant’s convictions, but we remand, consistently with Crosby, for possible resentencing. We do not retain jurisdiction.
K. F. KELLY, J., concurred with RONAYNE KEAUSE, P. J.
Notes
King was found guilty of first-degree murder, six counts of assault with intent to commit murder, and felony-firearm. His convictions are not at issue in the instant appeal.
A significant issue at trial and on appeal is whether that identification was accurate.
Mosley is also spelled “Moseley” in jail records.
“Double blind” is a scientific term referring to a manner of conducting a study in which neither the subjects nor the experimenters know which of multiple variables is which, generally accomplished by some kind of coding system and logged randomization that can be retrieved after the study is completed. The purpose of double-blind testing is, as defendant points out, to ensure that the experimenters’ own perceptions and biases do not unconsciously affect the outcome of the test.
Our dissenting colleague has provided a thorough analysis and summary of the current state of scientific knowledge regarding eyewitness identification, and properly agrees that our present jury instruction regarding eyewitness testimony remains the law. The Court of Appeals is an error-correcting court, and we are unpersuaded that it was erroneous for the trial court or defense counsel to follow the law.
Defendant’s argument in this regard relies, in part, on his assertion, addressed and rejected earlier in this opinion, that the jury was improperly instructed.
Defendant’s felony-firearm charge is derivative of the other charges.
We are aware that elsewhere in the same opinion, our Supreme Court in Lockridge also stated “that trial courts must assess the “highest number of points possible’ to each variable, ‘whether using judge-found facts or not.’ ” People v Stokes,
Dissenting Opinion
(dissenting).
Late on May 5, 2011, there was a brief but deadly confrontation between two groups of young men in downtown Detroit. As the two groups faced each other, a man from one group fired eight to ten gunshots at the other group. The shots struck two men, killing Courtney “Cortez” Smith and wounding Carlos Spearman.
Following the incident, defendant Anton Blevins and codefendant Quintín King were charged with first-degree premediated murder, MCL 750.316, several counts of assault with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
The prosecution presented evidence that King fired the shots that killed Smith and wounded Spearman. He was convicted as
Blevins was convicted of second-degree murder, MCL 750.317, multiple counts of assault with intent to do great bodily harm less than murder, MCL 750.84, and felony-firearm. Blevins raises several issues on appeal. I conclude that a new trial is merited because of errors arising out of the eyewitness identification testimony and because the prosecutor’s closing argument substantially misstated the legal standards by which the jury could convict Blevins on an aiding-and-abetting theory.
I. EYEWITNESS IDENTIFICATION TESTIMONY
It is undisputed that this case turned exclusively on the jury’s evaluation of eyewitness identification testimony. There was no forensic evidence linking Blevins to the gun, no evidence of robbery, and no evidence of any prior bad blood between Blevins and the victims. Although Blevins’s attorney conceded that Blevins was among the group of men standing with King, there was no evidence that anyone in the group, other than the man who handed him the gun, did anything to assist King in the crimes. Thus, the question of identification was not whether Blevins was present. Instead, the question was whether Blevins was the man who displayed a gun and then gave it to King before the shooting. I agree with the majority that the evaluation of a witness’s honesty is one exclusively for the jury; they, not we, hear and see the witnesses and are in the best position to make such determinations. However, the majority fails to distinguish between the issues of truthfulness and reliability. Unlike truthfulness, questions of reliability turn on factors other than the good faith and subjective honesty of the witness.
A. PRINCIPLES OF EYEWITNESS IDENTIFICATION
The reliability of eyewitness identifications has generally been understood to turn on external factors, such as those referred to in M Crim JI 7.8, including distance, time of exposure, and lighting. However, in the last several decades, the nature and functioning of memory have become subjects of advanced research and peer-reviewed scientific publications.
Scientific developments have often required the modification of evidentiary standards and trial proofs. The core function of evidentiary standards is to enhance the truth-finding process.
The consistent finding in the scientific studies of human memory is that, rather than being a single function, memory is made up of multiple, intricate brain operations that govern perception, memory formation, storage, and retrieval. Each of these functions is more complex and subject to far more distortion and error than we previously knew.
The overriding principle that has emerged is that memory does not function like a videotape, accurately and thoroughly capturing and reproducing a person, scene or event, but is instead a constructive, dynamic and selective process. Memories must endure the complex processing required for encoding, storage, and retrieval. In the encoding or acquisition stage, the witness perceives an event and enters the information into memory. The storage or retention stage is the period between when the memory is encoded and whenthe witness attempts to retrieve it. The retrieval stage represents the witness’s attempt to recall the stored information from memory. Memories are vulnerable to distortion, contamination, and falsification at each step. Eyewitnesses encode limited data bits and then their brains tend to fill in the gaps with whatever else seems plausible under the circumstances. Memories rapidly and continuously decay and may be covertly contaminated by suggestive influence—including by law enforcement officers during interviewing and identification procedures. [Note, State v Henderson: A Model for Admitting Eyewitness Identification Testimony, 84 U Colo L Rev 1257, 1264 (2013) (emphasis added; quotation marks and citations omitted).]
Contrary to our intuition, neuroscience and cognitive studies demonstrate that what is stored in a person’s memory can be changed over time, particularly when there are repeated retrieval attempts as a result of prompting. The gaps in memory can be filled in with information that is subjectively experienced as if it were part of the initial memory of the event.
There are several factors that are not adequately addressed in our present jury instruction that are of particular significance with regard to crime scenes. These inadequately addressed factors can lead to a disturbingly high error rate. First, although the stress and fear that accompany these experiences make it likely that the witness will remember the event, the stress and fear also serve to “interfere with the ability to encode reliable details.” Id. at 1275 (quotation marks and citation omitted). “[A] meta-analysis incorporating twenty-seven independent studies found that. . . only 39 percent [of eyewitnesses] made a correct identification after a high-stress situation.” Id. (emphasis added); see also Deffenbacher et si, A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum Behav 687 (2004). Second, delays in identification result in higher error rates during later recall. Studies of the decay rate of memory show that 20% of memory quality is lost after two hours, 30% within a day, and 50% within a month. State v Henderson: A Model for Admitting Eyewitness Identification Testimony, 84 U Colo L Rev at 1277. “Longer intervals between the event and identification are associated with fewer correct identifications.” Id. Third, mistaken familiarity may cause the witness to identify as the perpetrator a person who was merely present at the crime scene or who, while not present, was viewed by the witness at a lineup. Id. at 1277-1278.
Unfortunately, our “common sense” belief that identification errors are rare is false. Cognitive studies have demonstrated that identification errors are likely commonplace. “[A] review of published scientific research suggests that one-third to one-half of eyewitness identifications are simply wrong.” Id. at 1260 (emphasis added). As a result, eyewitness misidentification has been “widely recognized as the single greatest cause of wrongful convictions in this country.” State v Delgado, 188 NJ 48, 60;
The risk of misidentification leading to a wrongful conviction is significantly heightened by the fact that our present instruction directs jurors to consider “how sure the witness was about the identification . . . ,”
Similarly, while the standard jury instruction directs the jury to consider the “state of mind” of the witness during the recalled event, it offers no guidance regarding which states of mind are likely to result in more or less reliable memories.
States have taken various approaches to permitting expert testimony about the factors relevant to assessing the reliability of eyewitness identifications. According to a recent article in the American Journal of Criminal Law, the overwhelming majority of state courts and federal circuits allow such testimony at the discretion of the trial judge. Fourteen states and two federal circuits have rules that either encourage or
New Jersey has taken the lead in addressing this problem through revised jury instructions rather than expert testimony. In State v Henderson, 208 NJ 208, 217-219, 296-299; 27 A3d 872 (2011), the New Jersey Supreme Court appointed a special master to review the relevant scientific literature. After a review of more than 200 published scientific articles submitted by the parties and 10 days of testimony, the special master issued a highly detailed report in which he concluded that the research “abundantly demonstrates the many vagaries of memory encoding, storage and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.” State v Henderson, Report of the Special Master, issued June 18, 2010 (NJ Docket No. A-8-08), pp 72-73. The special master further concluded that the traditional mechanisms for considering the reliability of eyewitness testimony “neither recognize [] nor systematically accommodate [] the full range of influences shown by science to bear on the reliability of such testimony.” Id. at 76.
Following its receipt of the report of the special master, the New Jersey Supreme Court issued its opinion in Henderson and later adopted jury instructions intended to provide jurors with sufficient guidance so as to allow them to evaluate the reliability of eyewitness identifications with greater accuracy and without the need for expert testimony. See Henderson, 208 NJ at 296-297;
There is scant Michigan caselaw concerning this issue. The sole published case appears to be People v Hill,
Once a trial begins, however, it remains for the jury to perform its truth-finding role. Accordingly, the jury must be reasonably informed of the scientific understanding of how memory functions and what factors research has shown to be indicative of reliability or a lack thereof. The Supreme Court may wish to direct the Committee on Model Criminal Jury Instructions or some other body suited to the task to undertake the work necessary so as to allow the Court to refine M Crim JI 7.8 in light of generally accepted scientific principles. This approach would provide consistency and would avoid the inefficient presentation of expert testimony on a case-by-case basis.
At the present time, however, M Crim JI 7.8 remains as our standard instruction on eyewitness testimony, and until such a revision occurs, it is incumbent upon defense attorneys, particularly in cases that rest solely on eyewitness identification, to request a special jury instruction or to proffer expert testimony.
At the Ginther
It is with these issues in mind that we should conduct our review of the eyewitness testimony in this case.
B. THE EYEWITNESS IDENTIFICATION TESTIMONY
All the witnesses traveled to downtown Detroit to celebrate Spearman’s college
1. SPEARMAN
Spearman was shot and wounded in the incident. He testified that he never saw the man who shot him, and lie could not identify Blevins as having passed the gun or even as having been present during the incident.
2. EASTERLY
Easterly testified that, except for himself and decedent Smith, all the members of his group had been drinking. He stated that the incident began at about 11:30 p.m. when he walked some distance away from his group and urinated in a parking lot. He said a “[d]ark skin[ned]” black male, whom he identified as King, confronted him about urinating. He said that King and a second man—who was not Blevins— cornered him against a wall. He testified that King punched him in the nose, causing him to bleed profusely. Shortly thereafter, the rest of Easterly’s group rejoined him, and, seeing his injury, they started “walking up on” King and a group of four or five men with whom King was standing.
Easterly testified that he was about 25 feet from the men in King’s group when he saw a “light skinned” black man take a silver gun out of his waistband and fire one shot at the ground.
Easterly also testified regarding the pretrial identification procedures. He stated that four days after the shooting, the police showed him a photo array made up of headshots
3. KNOT
Because he did not appear when subpoenaed for the preliminary examination, Knot testified pursuant to subpoena and under the threat of being detained as a material witness. His testimony was inconsistent with that of the others in several respects and, unlike the other witnesses, was challenged on cross-examination on the basis of a lack of credibility.
Knot testified that he had been shown as many as 60 photographs by the police, although the record did not reveal whose photos he was shown or when the photo
At trial, nearly two years after the shooting, he identified the two black men sitting at the defense table as the assailants.
Knot testified that King then returned with a gun and began firing, at which point Knot hid and ran. He testified, consistently with his on-scene statement to the police, that he saw two separate guns but that only one was fired.
4. ROSS
Ross testified that he had consumed a couple of shots of vodka shortly before the shooting. He recalled hearing Easterly calling out and then finding him bleeding from the nose after being punched. He stated that King’s group numbered between six and eight, none of whom he knew previously. He identified Blevins as being in that group. Ross recalled that unfriendly words were exchanged between the two groups. He said he began walking toward the other group, asking why Easterly had been attacked. He heard a man say, “I got something for you,” and saw him lift a gun from his waist and point it at him. He testified that the man who spoke and held the gun was not Blevins and described the man as approximately 180 pounds.
Ross explained that he backed up, turned around, and immediately heard a shot. He did not think that there was time for the man with the gun to have passed the gun to anyone else. He said he
Ross testified that he did not see Blevins with a gun, nor did he believe Blevins fired any shots. On June 10, he was shown a photo array that included Blevins. He wrote next to Blevins’s photo that he had “seen him at the scene with the group.” When asked by the police what he saw Blevins do, he stated “I didn’t see him do anything other than stand there [.] ”
5. DRUMMOND
Drummond initially testified that he had no alcohol on the evening of the incident. However, after being shown his preliminary examination testimony, he conceded that he had consumed a couple of drinks that evening and that “it did slip my mind.”
Drummond testified that he saw King punch Easterly after Easterly urinated. He testified that another, lighter-skinned man was with King at that time, but that this second man was not Blevins. Drummond stated that, believing that “they got a fight going on,” he punched King’s companion and then the four “tusslefd]” for about 30 seconds. Almost immediately after, the two groups stood opposite each other: 7 in his group and 6 or 7 in the other group. He testified that Blevins and King were in the other group. According to Drummond, “[Everybody in [my] group [was] upset. ... I think it’s about to be a fight.” Drummond stated that Smith then began walking toward the other group, trying to get everyone to calm down. Then a man he identified at trial as Blevins pulled out a gun and said something like “ ‘yon don’t want this’ ” or “ ‘this ain’t what y’all want[.]’ ” Drummond said that when he saw the gun, he froze and put his hands up to show he did not mean to take things any further. However, Ross and Knot kept walking “aggressive, like” toward the other group despite his verbal warning to them that there was a gun. Drummond testified that he saw Blevins hand the gun to Kang, but said he did not hear any words pass between them. Within a few seconds, King fired one shot at the ground and then a few seconds later, he fired in the direction of Drummond and his friends. Drummond testified that as soon as King fired the first shot, everyone in both groups, including Blevins, began to run. Only King remained in place.
Drummond testified that the police showed him several headshot photo arrays at several different times. On May 9, he was shown an array in which King and Blevins were not pictured. He selected one photograph from this group, but the person he selected was not a suspect. He was shown another array on May 23, from which he selected two men: King and one other (not Blevins) as possibly being the shooter. On June 9, he picked out two other men from an array, neither of whom became suspects. On June 11, Drummond was shown yet another array of headshots, and in this one he identified Blevins from “the night of the shooting” and wrote that Blevins “pass[ed] the shooter the gun.” At trial Drummond stated that he was “100 percent” sure that Blevins displayed and passed the gun. He agreed on cross-examination that on the night of the shooting, he told the police the man who drew the gun was “skinny.”
6. MALONE
Malone testified that he saw King and Easterly get in a scuffle, but did not see anyone with King at that time. When he saw King hit Easterly, he and his friends were “all approaching to go fight,” and, as they did, Blevins, who was in the group with King, “showed us the gun,” and “we all backed up.” Malone explained that by
7. SUMMARY OF TESTIMONY
There were six witnesses to the shooting, several of whom had been drinking. The first four gave testimony that did not implicate Blevins as a shooter or as the person who supplied King with the gun. Spearman remembered nothing. Easterly remembered saying that there were two “light skinned” males in the other group and that the one involved in the fistfight with him was not Blevins. He testified that he could not place Blevins at the scene at all, let alone as the man who passed the gun to King. Knot offered testimony that varied substantially from all the other witnesses. Unlike every other witness, he testified that the man who displayed the gun knew Smith personally and called him by his nickname, that two men had guns at the scene but only one of them fired, and that no gun was passed. AJthough it had been nearly two years since the incident and he had never before identified Blevins or King, Knot identified them at trial as the men with the guns. He testified that only King fired. Ross testified that Blevins was in the opposing group, but he could not say whether Blevins displayed or passed a gun. Drummond and Malone testified that Blevins was the man who displayed the gun and provided it to King. However, on the night of the shooting, each told the police that the man in question was very skinny, and their initial identifications were based on headshot photos that did not reveal build. There was no evidence presented from either side regarding the number of photo arrays examined by Malone or whether Malone made any selections from those arrays. Although Drummond had selected several photos of nonsuspects before and after he selected Blevins, he nevertheless told the jury that he was “100 percent positive” that Blevins was the man who passed the gun to King.
C. GROUNDS FOR REVERSAL AND NEW TRIAL
Given the state of scientific knowledge concerning eyewitness identifications and the factors that increase or lessen their reliability, I would conclude that defense counsel was ineffective in this case. At the Ginther hearing, defense counsel agreed that he made no effort to learn about or make use of the available science. He explained that he did not do so because he did not think that jurors convict defendants on the basis of eyewitness identifications, a view that is difficult to square with his testimony that the entire case came down to identification and that the only evidence in this case was that of the eyewitnesses. He also testified that he did not request a modified identification instruction because he had never done so in his 40-year career, which is not surprising
Given the facts of this case, I would conclude that counsel’s strategy was not reasonable, and that the failure to present expert testimony or request a special instruction constituted ineffective assistance of counsel.
For this reason, I would reverse and remand for a new trial. For the same reasons, I respectfully propose that our Supreme Court consider whether and how to revise the relevant jury instructions to embrace the scientific advances concerning eyewitness testimony.
II. THE ARGUMENTS OF TRIAL COUNSEL
Blevins’s appellate brief also asserts that two aspects of the prosecutor’s closing argument constituted misconduct, or alternatively, that defense counsel’s failure to object constituted ineffective assistance of counsel. I agree that the prosecutor’s arguments were improper in both respects, but conclude that only one of them rises to the level of error requiring reversal.
A. MISSTATEMENT OF AIDING-AND-ABETTING LAW
It is well settled that mere presence is insufficient to establish guilt as an aider and abettor. People v Wilson,
The prosecution argued, both implicitly and explicitly, that guilt should be assigned on a group or “team” basis, a metaphor particularly powerful in this case given that two groups of young men, one of which contained several members of the Wayne State University football team, lined up against each other. The prosecutor repeatedly argued that guilt could be assigned to the entire “team” that stood with King and repeatedly analogized to the fact that every member of a team shares
In his opening statement the prosecutor said:
You’ll hear these groups kind of pair off facing each other. Words are exchanged. Some people try to do some peacemaking. But then you’ll hear that in the defendants’] group a gun is produced. [Emphasis added.]
He continued with this theme by asserting that “all the shots that [were] fired that night were fired by the defendants’ group.” (Emphasis added.) Further, the notion of group liability was again emphasized in the context of the two groups being two opposing teams:
[T]he evidence is going to show you that night they were acting as a team. Unfortunately far more effective than my Michigan Wolverines were last night....
They were together during the confrontation. ... These groups pair off like rival time. Gun was displayed, not in Mr. Smith’s team or anybody of that team but by this other side.
This line of argument was repeatedly emphasized during the prosecution’s closing argument. In discussing the concept of aiding and abetting, the prosecutor said, “The Judge has talked to you about aiding and abetting. I’m not going to go over all the instructions with you, but what I think you need to look at is this whole team [concept] that comes into play.” (Emphasis added.) He went on to say:
[A] football team gets credit for [a] touchdown when the defense recovers the ball in the fumble, in the end zone. Even if we can’t see who recovered the ball, may be a dispute between us and our friend as to exactly who got the ball. Everyone on the team from the start [er] to the bench warmer gets the same ring if that team wins the championship. Because every one of them in a larger or smaller way contributed to that championship. Like Bo Schlembecker [sic] said back in 1983, “everything is the team. The team.”
Describing what happened after King punched Easterly, the prosecutor argued:
Then [Easterly’s] friends come to intervene. Mr. Blevins comes to Mr. King’s aid with some other people. The gun is displayed. As the groups pair off, words are exchanged. Smith comes in trying to calm people down. I think Mr. Drummond said he was trying to kind of hold Mr. Ross back. Told you shots are fired at Mr. Smith’s group. Mr. Smith is hit dead. Mr. Spearman is left wounded. The defendants flee.
And even if there are some discrepancies of exactly who did what when, there is no doubt that they acted together to bring about this deadly mayhem. Teammates. They deserve the same credit for the crime.
The prosecutor’s words did not merely suggest that the shooter and whoever handed him the gun were a team, but that they were members of a team made up of everyone who stood with them. He argued that the defendants “acted together as part of a. deadly assaultive team.” (Emphasis added.) And when noting the absence of self-defense, the prosecutor again referred to the “group” that committed the crime, stating that “[n]ot at issue is did those people in the group that killed Mr. Smith or wounded Mr. Spearman and shot at the others act in some kind of lawful self-defense [.] ” (Emphasis added.)
A prosecutor’s misstatement of law can necessitate reversal when it deprives the defendant of a fair trial. People v Matulonis,
I don’t know what to tell you about the team concept ....
The team concept notion of aiding and abetting, all that’s accurate.
Because the prosecutor’s comments went to the heart of what constitutes criminal conduct, I would find that that the defense counsel’s decision to agree with the prosecutor’s statements rather than to object to them and seek a corrective instruction constituted ineffective assistance of counsel.
B. invoking sympathy
The defense also argues that the prosecution’s argument improperly invoked sympathy by repeatedly describing the victim as a “peacemaker.” There was a factual basis for this description because, in the prosecutor’s words, the victim had attempted to get everyone at the scene to “chill out.” Reference to the facts is not improper, and in and of itself, it represented only a brief, nonprejudicial reference to the victim’s good character. However, in my view, the prosecutor’s argument was improper because of the manner in which he addressed this fact.
The prosecutor’s argument began with a three-page discourse comparing the victim to renowned peacemakers who had been assassinated. “A prosecutor may not appeal to the jury to sympathize with the victim.” People v Unger,
There was no objection to this argument, however, and unlike the prosecutor’s “team” references, I do not believe that allowing these comments rose to the level of “plain error,” nor that the failure to object constituted ineffective assistance of counsel.
III. CONCLUSION
I would reverse and remand for a new trial because defense counsel provided ineffective representation on the issue of eyewitness identification and by failing to object to the prosecution’s closing argument based on “team” responsibility.
King is not a party to this appeal. A separate panel of this Court affirmed his convictions, but remanded for resentencing in light of Miller v Alabama,
“[0]ver two thousand studies on eyewitness memory have been published in a variety of professional journals over the past 30 years.... Even more remarkable is the high degree of consensus that the researchers report in their findings.” State v Henderson, Report of the Special Master, issued June 18, 2010 (NJ Docket No. A-8-08), p 9, available at <https://www.judiciary.state.nj.us/pressrel/HENDERS0N%20FINAL%20 BRIEF%20PDF%20(00621142).PDF> (accessed September 29, 2015) [https://perma.cc/R6L5-XNYZ].
In addition to the Report of the Special Master, which cites many such studies, a literature review can be found in Note, State v Henderson: A Model for Admitting Identification Testimony, 84 U Colo L Rev 1257 (2013), and in Hallisey, Experts on Eyewitness Testimony in Court—A Short Historical Perspective, 39 How LJ 237 (1995).
Dr. Colleen Seifert, a professor of cognitive psychology at the University of Michigan who has published extensively in the field, submitted an affidavit in support of Blevins’s motion for a new trial. Seifert’s affidavit states that there is now a “generally accepted body of scientific research” in this area that is based on the “[t\hree to four hundred peer-reviewed articles . . . published each year in professional research journals that demonstrate the social and cognitive factors affecting eyewitness accuracy,” and that the researchers’ findings have been “replicated” across “hundreds of studies” involving the “testing of] thousands of individuals” with “statistically reliable results.” (Emphasis added.)
Daubert v Merrell Dow Pharm, Inc,
Frye v United States, 54 App DC 46; 293 F 1013 (1923).
For a summary of state and federal law on this issue, see Vallas, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am J Crim L 97, 136-138 (2011).
“[T]he primary objective of procedural rules should be to facilitate the discovery of truth. . . . [T]ruth must be the goal of any rational procedural system . . . .” Grano, Implementing the Objectives of Procedural Reform: The Proposed Michigan Rules of Criminal Procedure— Part I, 32(3) Wayne L Rev 1007, 1011-1012 (1986) (citation omitted).
M Crim JI 7.8(3).
Greene, Eyewitness Testimony and the Use of Cautionary Instructions, 8 U Bridgeport L Rev 15 (1987) (concluding that traditional jury-instructions on eyewitness testimony are of minimal effect).
M Crim JI 7.8(3).
In her affidavit in support of Blevins’s motion for new trial, Seifert offered this criticism of our present jury instruction:
While well intentioned, the instructions [do] not provide guidelines to the jurors about how to apply them; for example, what amount of time passing since the incident is likely to lead to correct identification, and what states of mind lead to less accuracy? Further, these instructions do not include warnings about other known biasing factors, such as the presence of a weapon during the crime, discussion among witnesses about the suspects, and effects of [police] instructions ....
We generally do not allow jurors to apply their intuition when there is available scientific evidence to the contrary. For example, in a medical-malpractice case, a plaintiffs lawyer may seek to take advantage of a lay person’s intuition that a catastrophic injury resulting from a medical procedure is proof that the procedure was incorrectly performed. We do not shield the jurors from scientific information that shows this “common sense” conclusion to be incorrect. We permit the defense to introduce expert testimony to the contrary and even instruct jurors that an adverse outcome is not, in and of itself, sufficient to show negligence. M Civ JI 30.04. The general principle of reliance on the common sense of jurors is not an excuse to ignore demonstrable scientific data that runs counter to that common sense.
The New Jersey Supreme Court ultimately adopted two instructions. One addresses out-of-court identifications, and the other addresses in-court identifications. Each informs the jurors that they are to determine whether the identification is sufficiently reliable. The instructions offer brief general information about memory and list numerous variables, indicating whether the presence of those variables tends to increase or decrease the reliability of an eyewitness identification. See New Jersey Judiciary, Revised Eyewitness Identification Jury Instructions (July 19, 2012), available at <https://www.judiary.state.nj.us/pressrel/2012/ jury_instruction.pdf> (accessed September 30, 2015) [https://perma.cc/ L2YH-GVRZ],
Available at <https://www.judiary.state.nj.us/pressrel/2012/ prl20719a.html> (accessed September 30, 2015) [https://perma.cc/ CQ5E-SVN5],
The Hill Court reversed the defendant’s conviction and remanded for a new trial on the basis of a separate challenge to two in-court identifications and the lower court’s failure to conduct a necessary evidentiary hearing regarding those identifications. Hill,
The task force was co-chaired by Nancy Diehl, former Chief of the Trial Division of the Wayne County Prosecutor’s Office, and Valerie Newman, a staff attorney with the State Appellate Defender Office. Members of the task force included four trial judges, two appellate judges, several prosecutors, and several defense attorneys.
See generally United States v Hall,
People v Ginther,
The other witnesses testified that King fired all the shots, including the one at the ground.
The photos showed the individuals from the neck up.
In People v Kachar,
“Ordinarily, when a witness is asked to identify the assailant or thief, or other person who is the subject of his testimony, the witness’s act of pointing out the accused (or other person), then and there in the courtroom is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person’s identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him. (Emphasis in original.)” 4 Wigmore on Evidence (3d ed, Supp), § 1130, quoted in Comment, Erroneous Eyewitness Identification at Lineups— The Problem and Its Cure, 5 U San Fran L Rev 85, 90 (1970) (emphasis in original). See also United States v Toney, 440 F2d 590, 592 (CA 6, 1971) (McCree, J., concurring), for discussion of courtroom identification as highly suggestive.
As already noted, Blevins weighed 245 pounds.
Defense counsel is a highly regarded and sought-after trial attorney. However, even excellent attorneys make serious errors from time to time, and while there are great benefits to experience, it can sometimes lead to complacency regarding the need to stay abreast of newer developments.
Seifert’s affidavit states that she reviewed the preliminary examination and trial transcripts, the police reports, and the photographic identification materials. She opined that the methods of identification used in this case involved “factors [that] have each been shown in scientific studies to impair eyewitness accuracy and to affect decision-making by triers of fact.”