People v. McCray

Citation630 N.W.2d 633,245 Mich. App. 631
Decision Date27 June 2001
Docket NumberDocket No. 214701.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lorenzo McCRAY, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals.

Carl S. Christoph, for the defendant on appeal.

Before MARKEY, P.J., and MURPHY and COLLINS, JJ.

COLLINS, J.

Following a bench trial, defendant was convicted of assault with intent to commit murder, M.C.L. § 750.83, two counts of assault with intent to commit armed robbery, M.C.L. § 750.89, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. He was sentenced to twenty-five to fifty years' imprisonment for the conviction of assault with intent to commit murder, fifteen to thirty years' imprisonment for each of the convictions of assault with intent to commit armed robbery, and two years' imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm, but remand for correction of the amended judgment of sentence.

On December 28, 1997, Detroit Police Officers William Blake and Reginald Washington were patrolling the area of Joy and Epworth in a marked squad car. The officers saw two men lying face down on the ground and another man standing over them, holding a weapon. When the officers stopped and turned around, the assailant put his weapon in his pocket and ran to a waiting vehicle. The officers chased the vehicle until it stopped and the assailant jumped out of the passenger side and attempted to run between two houses. Blake pursued the assailant on foot. The assailant jumped over a fence and fell. When Blake jumped over the fence, the assailant got up, shot Blake in the right upper thigh, and then continued running.

Trial testimony revealed that defendant, along with Timothy Hobson and Terrance Hanson, was in the vehicle that fled from Blake and Washington, and that the vehicle was owned by Hobson's girlfriend. The critical issue at trial was whether defendant or Hobson was the assailant. Defendant acknowledged that he was present at the scene of the robbery attempt, but testified that he was in the back seat of the vehicle and that Hobson committed the charged crimes. Hobson testified that he was driving the vehicle, and that it was defendant whom the officers observed attempting to rob the two men and it was defendant who shot Officer Blake. Hanson did not testify.

Defendant first argues on appeal that the trial court erred in admitting defendant's notice of alibi as impeachment evidence because defendant did not pursue an alibi defense at trial. This Court reviews for an abuse of discretion the trial court's decision to admit or exclude evidence and will reverse only where there is a clear abuse of discretion. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998).

Before trial, defendant filed a notice of alibi defense pursuant to M.C.L. § 768.20, asserting that he was not at the scene of the shooting, but was at another location in Detroit with three named individuals. During trial, defendant testified on his own behalf and acknowledged that he was in the vehicle at the scene of the attempted robbery, but denied any involvement in the attempted robbery or shooting. On cross-examination, the prosecutor sought to impeach defendant's credibility with his notice of alibi, and defendant objected. Relying on People v. Von Everett, 156 Mich. App. 615, 402 N.W.2d 773 (1986), the court allowed the impeachment.

In Von Everett, this Court found that the defendant's notice of alibi, which alleged an alibi wholly inconsistent with the alibi to which the defendant testified at trial, was admissible as a party-opponent admission under MRE 801(d)(2)(C) and could be used to impeach the defendant. Von Everett, supra at 624, 402 N.W.2d 773. This Court reasoned that admission of the alibi notice for the purpose of impeachment did not infringe the defendant's right to remain silent where the defendant had already testified regarding an inconsistent alibi, and that the impeachment was proper because the inconsistent alibis reflected on the defendant's credibility. Id.

In People v. Malone, 180 Mich.App. 347, 354, 447 N.W.2d 157 (1989), this Court relied on Von Everett in allowing use of the defendant's notice of alibi defense for the purpose of impeachment, even though the statements made in the notice of alibi were not entirely inconsistent with the defendant's trial testimony. The defendant in that case testified that he was at his sister's house at the time of the offense, which was consistent with his alibi notice, but also testified that he had not seen one of the witnesses listed in his alibi notice on the date of the offense and that he did not know the other one. Again, this Court found the evidence relevant to the defendant's credibility. Id.

Defendant attempts to distinguish Von Everett on the basis that the defendant in that case presented an alibi defense that was inconsistent with the alibi in his notice of alibi, while defendant in this case did not rely on an alibi defense. Defendant contends that because he did not present an alibi defense at trial, his notice of alibi should be considered analogous to statements made during plea negotiations, which are not admissible under MRE 410, or to statements made by a defendant to an examining psychiatrist, which are not admissible, pursuant to M.C.L. § 768.20a(5), if the defendant later chooses not to pursue an insanity defense. We note, however, that in both examples relied on by defendant, there exists a policy-based rule or statute that prohibits admission of the statements in question, including for purposes of impeachment. See, e.g., People v. Toma, 462 Mich. 281, 293, 613 N.W.2d 694 (2000) (no exception to M.C.L. § 768.20a[5] for impeachment exists). Although F.R. Crim. P. 12.1(f) prohibits the admission of a statement expressing an intent to rely on an alibi defense if the defense is later withdrawn, there is no such rule in Michigan.

We conclude that the holding of Von Everett is not limited to situations where a defendant testifies regarding an inconsistent alibi. Rather, as a party-opponent admission, the notice of alibi may be used to impeach defendant's credibility at trial when his testimony is inconsistent with the contents of the alibi notice. Here, as in Von Everett, defendant's Fifth Amendment right not to testify was not infringed, because the court permitted the impeachment only after defendant testified that he was present at the scene, but did not participate in the attempted robbery or the shooting.1 Accordingly, we conclude that the trial court did not abuse its discretion in admitting statements made in defendant's notice of alibi defense for the purpose of impeaching defendant.

Defendant next argues that the trial court abused its discretion in denying his motion for a new trial based on the claim that the verdict was against the great weight of the evidence. This Court reviews for an abuse of discretion the trial court's denial of a motion for a new trial on the ground that the verdict was against the great weight of the evidence. People v. Stiller, 242 Mich.App. 38, 49, 617 N.W.2d 697 (2000). The test is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. People v. Gadomski, 232 Mich. App. 24, 28, 592 N.W.2d 75 (1998).

Defendant contends that the verdict was against the great weight of the evidence because witness descriptions of the assailant varied, and none of the descriptions exactly fit defendant. However, "[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial." People v. Lemmon, 456 Mich. 625, 647, 576 N.W.2d 129 (1998). Although there were discrepancies among witness descriptions of the assailant and defendant's appearance, after review of the entire record we conclude that those discrepancies do not preponderate so heavily against the verdict that it would be a miscarriage of justice to let the verdict stand. Gadomski, supra.

Defendant next argues that the court erred in admitting Blake's out-of-court identification of defendant in a photographic lineup after defendant was in custody, and his in-court identification of defendant at trial, because counsel was not present at the photographic lineup, and the in-court identification may have been influenced by the prior photographic identification.2 Defendant did not object at trial to the admission of the photographic lineup identification or to Blake's in-court identification of defendant. Our review of this unpreserved issue is therefore limited to determining whether defendant has demonstrated a plain error that affected his substantial rights. People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999). Defendant argues in the alternative that his counsel was ineffective for failing to object to the admission of the out-of-court and in-court identifications of defendant by Blake.

"In the case of photographic identifications, the right of counsel attaches with custody." People v. Kurylczyk, 443 Mich. 289, 302, 505 N.W.2d 528 (1993) (Griffin, J.). Here, it is not possible to determine from the record whether counsel was present at the photographic lineup. At trial, the prosecutor asked Officer Blake if an attorney was present, and he responded that he could not recall. The issue was not further pursued by either party. Also, there is nothing in the record to show that the photographic lineup was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, and defendant did not request a Wade3 hearing. People v. Anderson, 389 Mich. 155, 169, ...

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    ...grant or denial of a new trial on the ground that the verdict was against the great weight of the evidence. People v. McCray, 245 Mich.App. 631, 637, 630 N.W.2d 633 (2001). A trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence prepon......
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