People v. McPherson, Docket No. 242767.

• Decision Date: 29 September 2004
• Docket Number: Docket No. 242767.
• Citation: 687 N.W.2d 370,263 Mich. App. 124
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lanier McPHERSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

687 N.W.2d 370

263 Mich. App. 124

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lanier McPHERSON, Defendant-Appellant.

Docket No. 242767.

Court of Appeals of Michigan.

Submitted May 6, 2004, at Detroit.

Decided July 20, 2004, at 9:10 a.m.

Released for Publication September 29, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Ana I. Quiroz, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Chari K. Grove), Detroit, for the defendant.

Before: SAAD, P.J., and SAWYER and HOOD, JJ.

SAAD, P.J.

Four "friends" were involved in the shooting of two victims, Abdul Scott and Max King, one of whom, Mr. Scott, died. One of the four friends, defendant Lanier McPherson, at first pointed the finger at Delano Gaffney, later confessed that he was the shooter, but claimed self-defense and then later claimed that Cherell King was the shooter. And, Gaffney pointed the finger at Cherell King, who, in turn, implicated McPherson, Gaffney, and Dorsey. Cherell King later was murdered by Gaffney and Dorsey, both of whom were convicted of the second-degree murder of Mr. King. McPherson was twice tried for the murder of Scott; the first trial was declared a mistrial because the jury was deadlocked and, in the second trial, the jury convicted defendant and this appeal followed.

A jury convicted defendant Lanier McPherson (defendant) of first-degree murder,¹ felon in possession of a firearm,² and possession of a firearm during the commission of a felony.³ The trial court sentenced defendant to life imprisonment for the first-degree murder conviction, a concurrent 3-½- to 5-year term of imprisonment for the felon in possession conviction, and a consecutive five-year term for the felony-firearm conviction. Defendant appeals his convictions and sentences, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

On April 24, 2002, a jury found defendant guilty of the fatal shooting of Abdul Scott.⁴ Shortly after the August 19, 2000, shooting in issue, the prosecution charged defendant, Delano Gaffney, and Marcelle Dorsey in this case, but at the preliminary examination, the charges against Gaffney and Dorsey were dismissed for insufficient evidence because Cherell King,⁵ who had implicated defendant, Gaffney, and Dorsey, failed to appear at the hearing. King, who was present with defendant, Gaffney, and Dorsey at the time of the shooting, was murdered before defendant's trial, and Gaffney and Dorsey were convicted of second-degree murder for the killing of King.

Defendant was tried in January 2002, but the trial court declared a mistrial because the jury was deadlocked. The jury in the second trial returned the convictions from which defendant appeals. At trial, the prosecution's theory of the case was that defendant, accompanied by Dorsey, Gaffney, and King, shot the victims because earlier on the day of the shooting the victims had laughed about the fact that Gaffney's car was stolen. Though defendant admitted at trial that he was present during the shooting, he claimed that King shot the victims.

Lucretia Thompson, defendant's girlfriend at the time of the shooting, testified that Gaffney, Dorsey, and King were defendant's friends. Thompson testified that on the morning of August 19, 2000, she drove King, defendant, and defendant's uncle to a funeral home on West Grand Boulevard in Detroit. Defendant asked Thompson to take a gun home with her and told her that the gun was not his, but that he did not want it at the funeral home. Defendant placed the gun under the driver's seat of the car, and Thompson drove home, but, later, defendant phoned her and told her to "forget it, bring it back." Thompson drove back to the funeral home, at which time defendant took the gun from the car.

Montez Meadows testified that on the morning of August 19, 2000, after she left an adult foster care home located at the intersection of West Grand Boulevard and Linwood, she saw two men (the victims) walking on West Grand Boulevard. She and the two men stood at the corner, waited for the traffic signal to change so they could cross the street, and she witnessed a car screech to a halt in front of them. Meadows testified that defendant and another person got out of the car and began running toward Meadows and the two men and that the two unknown assailants were shooting at them. Meadows and the two men she was standing with fell to the ground; both men were shot. Meadows testified that both defendant and the other man from the car had a gun, and that both were firing their guns, but she did not know which of the two guns fired the bullets that struck the victims.⁶ Understandably frightened, Meadows crawled into the foster care home and hid, and continued to hide even after the police arrived.⁷ Scott ultimately died of his injuries, and Max, who was injured, did not appear at defendant's trial.

Nearly three months after the shooting, on November 22, 2000, the police arrested King and defendant, and, on November 23, Investigator Barbara Simon of the Detroit Police Department interviewed defendant about the shooting. Defendant initially claimed ignorance of the event and then became belligerent, at which point Simon ended the interview. Defendant claims he asked for an attorney and that Simon refused.

On Friday, November 24, 2000, Investigator Terrill Shaw took a statement from King. Shaw showed this statement to Investigator James Fisher, who took a formal statement from defendant that afternoon. The statement contained yet another story about what happened on August 19, 2000: Gaffney complained that his car was stolen, and he said he thought he knew who had taken it. Gaffney told defendant to have Thompson bring Gaffney's gun to him. Gaffney, Dorsey, and King drove around in a Jeep Cherokee until Gaffney saw the victims, handed his gun to King, and told King to "smoke both of them." After some shots were fired, Gaffney got out of the Jeep and into another vehicle, while King returned to the Jeep, and defendant and Dorsey drove away. Investigator Fisher told defendant that he did not believe defendant's story and arranged for defendant to be interviewed by Investigator Andrew Sims, who specialized in polygraph examinations.

On Sunday, November 26, 2000, Sims, the polygraph specialist, interviewed defendant, and defendant initially told a story similar to the written statement he gave to Fisher. Sims told defendant he did not believe his story, and defendant again changed his story and finally made a written statement in which he admitted that he shot the victims, but claimed self-defense. Defendant was interviewed once more by Investigator Dwight Pearson, who was watching the polygraph examination while seated in another room. Pearson then conducted his own interview of defendant, and defendant, once again, stated that he had shot the victims in self-defense.

However, at trial, rather than claiming self-defense, defendant denied being the shooter and, instead, testified that King, who by this time had been murdered by Gaffney and Dorsey, was the shooter. Defendant, of course, desired to have Gaffney testify on his behalf that King, not defendant, was the shooter. Accordingly, the trial court granted defendant's request to read the prior testimony of Gaffney into the record. Gaffney's prior testimony was read to the jury because Gaffney chose to exercise his Fifth Amendment right against self-incrimination.⁸ Gaffney testified that King, not defendant, was the person who shot the victims.

Testifying in his own defense, defendant stated that Gaffney told King to shoot the victims because Gaffney thought that they stole his car. He testified that, after his arrest, he did not want to make a statement, but when Fisher questioned him, defendant knew that Fisher had previously arrested defendant's mother and told defendant that something bad would happen to defendant's mother if defendant did not give a statement. Defendant also testified that Fisher told him that Gaffney was released after he made a statement inculpating King. Defendant further told Fisher that King was the shooter. He also testified that he falsely told Fisher that he handed a gun to Gaffney, who handed it to King, because he thought that Fisher would release him upon learning this information. However, instead of releasing defendant, Fisher had defendant interviewed by Sims. Defendant alleged that Sims told him that the only way out would be to confess to shooting the victims and claim self-defense.

During cross-examination, the prosecutor asked defendant about defendant's motivation for implicating King, including defendant's changed version of events, and a statement King gave to the police implicating defendant:

Q. And you had known that before you gave your statement to Investigator Fisher on November twenty-forth [sic] at 3:30 in the afternoon that day, you already knew that Mr. King had ratted you out, isn't that true?

A. He ended up telling me that he said that I did it....

Defendant moved for a mistrial and argued that the admission of King's statement, through defendant, violated his Sixth Amendment right to confront witnesses against him. U.S. Const., Am. VI and Am. XIV. The trial court denied the motion.

II. STANDARD OF REVIEW

We review de novo a claim of constitutional error. People v. Rodriguez, 251 Mich.App. 10, 25, 650 N.W.2d 96 (2002). However, when a trial court commits an error that denies a defendant his constitutional rights under the Confrontation Clause, U.S. Const, Am. VI and Am. XIV, we need not reverse if the error is harmless beyond a reasonable doubt. People v. Smith, 243 Mich.App. 657, 690, 625 N.W.2d 46 (2000), citing People v. Carines, 460 Mich. 750, 774, 597 N.W.2d 130 (1999).

III. ANALYSIS

A. APPLICABILITY OF CRAWFORD v. WASHINGTON

The United States Supreme Court recently held that for...