People v. Bowman, Docket No. 230381.

• Decision Date: 20 February 2003
• Docket Number: Docket No. 230381.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin Dwayne BOWMAN, a/k/a KB, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

656 N.W.2d 835

254 Mich. App. 142

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kevin Dwayne BOWMAN, a/k/a KB, Defendant-Appellant.

Docket No. 230381.

Court of Appeals of Michigan.

Submitted August 7, 2002, at Grand Rapids.

Decided November 15, 2002, at 9:20 a.m.

Released for Publication February 20, 2003.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by P.E. Bennett), for the defendant an appeal.

Before: WHITBECK, C.J., and BANDSTRA and TALBOT, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of first-degree murder, M.C.L. § 750.316, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. We affirm.

I. Basic Facts and Procedural History

This case arises from the murder of a midlevel Grand Rapids area drug dealer found shot to death in his apartment. Forensic evidence admitted at trial indicated that the victim had been shot several times at close range while asleep in his bed. However, no evidence of forced entry into the apartment, which was generally secured by a deadbolt, was found.

Evidence offered at trial indicated that on the eve of his death the victim was in possession of a large amount of cash and cocaine and was alone in the apartment with defendant, who, despite being described as the victim's "shadow," was considered an "outsider" in a tightly knit group of associates centered around the victim. After the murder, defendant gave to the police and several individuals a number of inconsistent accounts regarding his whereabouts at the time of the murder. Defendant also began uncharacteristically spending money and was observed wearing more expensive clothing than usual. At about that same time, defendant was arrested and jailed for reasons unrelated to the murder and, while in jail bragged to a fellow inmate that he had killed someone who had "disrespected" him. Defendant further related details of the killing that were consistent with the victim's murder but that only the killer and those who actually examined the body would have known at that time. Defendant also told the inmate that he had stolen both cash and cocaine in conjunction with the murder.

During the course of the year-long investigation into the murder, defendant spoke with the police on several occasions. Although initially denying any involvement in the killing and theft, defendant ultimately acknowledged that he "may" have shot the victim, but indicated that he must have blacked out because he could not specifically recall the events of that evening. On the basis of this evidence, the jury convicted defendant as stated above. Defendant now appeals as of right, raising allegations of evidentiary and instructional error.

II. Analysis

A. Hearsay Concerning Motive and Intent of Others

Defendant first argues that the trial court erred by declining to allow him to present hearsay testimony regarding persons other than himself who may have harbored a motive and intent to kill the victim. Specifically, defendant claims that the court should have admitted testimony that the victim was "upset" after driving from a meeting with a fellow drug dealer to the home of a friend, and that a mechanic who knew the victim heard someone in his automobile repair shop boasting that he had killed a man by shooting him in the head. Defendant claims that the first of these statements was admissible as either a present sense impression or excited utterance under MRE 803(1) or (2), and that the second was admissible as a statement against penal interest under MRE 804(b)(3). We disagree.

We review for an abuse of discretion a trial court's ruling on the admissibility of evidence. People v. Starr, 457 Mich. 490, 494, 577 N.W.2d 673 (1998). With respect to the admissibility of the first challenged statement, a present sense impression is defined under MRE 803(1) as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." This Court is not overly literal in construing the phrase "immediately thereafter" and will allow a statement made less than a minute or even several minutes after the event observed to qualify under this exception. See People v. Cross, 202 Mich.App. 138, 142, 508 N.W.2d 144 (1993). However, the statement at issue here was not made merely a few minutes after the conversation being related took place, but following a drive of an indeterminate length from one house to another, and then in a separate conversation with someone not present during the first conversation. To call such an account a "present sense impression" is to rob the phrase of its meaning, and we will not interpret the language of this evidentiary rule in a sense so contrary to its "`fair and natural import.'" See People v. Morey, 461 Mich. 325, 330, 603 N.W.2d 250 (1999), quoting People ex rel Twitchell v. Blodgett, 13 Mich. 127, 168 (1865) (Cooley, J.). Accordingly, we do not conclude that the trial court abused its discretion by declining to admit the subject statement under MRE 803(1).

We similarly find no support for defendant's contention that this testimony was admissible as an excited utterance under MRE 803(2). The excited utterance exception applies only to a statement that arises from a truly "`startling occasion'" and was "`made before there has been time to contrive and misrepresent.'" People v. Kreiner, 415 Mich. 372, 378-379, 329 N.W.2d 716 (1982), quoting People v. Gee, 406 Mich. 279, 282, 278 N.W.2d 304 (1979). In addition to considering whether there was time to fabricate the statement, a court must also consider whether the declarant's emotional state would have permitted such fabrication. People v. Edwards, 206 Mich.App. 694, 697, 522 N.W.2d 727 (1994). Under none of these standards does the statement in question qualify as an excited utterance. Although defendant offered some detail regarding the substance of and circumstances giving rise to the challenged testimony, the fact that one drug dealer was "upset" after seeing another does not suggest any "startling" event. Indeed, we have found the sexual harassment of a corrections officer at work two days before being murdered (allegedly in connection with the harassment) not to have constituted a startling event, McCallum v. Dep't of Corrections, 197 Mich.App. 589, 592-593, 604, 496 N.W.2d 361 (1992), and have similarly ruled that viewing a daughter's body in an open casket four days after she was murdered is not a startling event that allows the admission of a hearsay statement under MRE 803(2), People v. Lobaito, 133 Mich.App. 547, 558-559, 351 N.W.2d 233 (1984). In light of these precedents, a disagreement, even a heated or upsetting one, between drug dealers simply cannot be regarded as a "startling event." Moreover, the time between the event in question and the statement itself gave the victim "time to contrive and misrepresent" before making the statement, Kreiner, supra, and it does not appear that the victim's emotional state when he made the statement necessarily would have excluded the possibility of such fabrication, Edwards, supra. Accordingly, the trial court did not abuse its discretion in refusing to admit the statement as an excited utterance under MRE 803(2).

We similarly find no error in the trial court's decision not to admit the second statement in question, i.e., that, at some indeterminate point, a mechanic heard a certain "Little Tony," who allegedly owned a handgun similar to that with which the victim was killed and was affiliated with a drug organization rival to that of the victim, remark that he had killed someone by emptying a gun into him, and in the process had kicked in both a front door and a bedroom door. Defendant sought to admit this statement under MRE 804(b)(3), which permits the admission of hearsay statements against the penal interest of the declarant. However, under this rule, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." MRE 804(b)(3). The requirement of corroborating circumstances for the application of this exception to the general rule excluding hearsay has been enforced in a number of our cases, including People v. Jensen, 222 Mich.App. 575, 582-583, 564 N.W.2d 192 (1997), vacated in part on other grounds, 456 Mich. 935, 575 N.W.2d 552 (1998), People v. Underwood, 184 Mich.App. 784, 788, 459 N.W.2d 106 (1990), and People v. Sanders, 163 Mich.App. 606, 610, 415 N.W.2d 218 (1987), and we agree with the trial court that the evidence proffered here lacked such corroborating circumstances. Indeed, the condition of the doors in the victim's apartment actually contradicted the statement. Accordingly, the statement was insufficiently trustworthy to warrant its admission into evidence under MRE 804(b)(3), and the trial court did not abuse its discretion in so ruling.¹

B. Instruction on Reasonable Doubt

Defendant next argues that the trial court's instructions regarding the standard for finding him guilty beyond a reasonable doubt were erroneous. The trial court instructed the jury that

[p]roof beyond a reasonable doubt simply means evidence presented here which after you have assessed it leaves you firmly convinced in your own mind that he's guilty. If you are firmly convinced based on the evidence, then you have been convinced beyond a reasonable doubt.

... If based on your careful consideration of the evidence and whatever inferences follow from the evidence you're firmly convinced that [defendant] is guilty of some criminal offense, then you may find him guilty.

If, on the other hand, based on the evidence, the lack of

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