People Of The State Of Mich. v. Davis

• Decision Date: 17 March 2011
• Docket Number: No. 290131,No. 08-030280-FC,290131,08-030280-FC
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEONTAE TRAVOHN DAVIS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEONTAE TRAVOHN DAVIS, Defendant-Appellant.

No. 290131

No. 08-030280-FC

STATE OF MICHIGAN COURT OF APPEALS

March 17, 2011

UNPUBLISHED

ON REMAND

Before: Fort Hood, P.J., and Borrello and Stephens, JJ.

Per Curiam.

This Court previously issued an unpublished opinion in this case, affirming defendant's convictions and sentences for one count of conspiracy to commit first-degree premeditated murder, MCL 750.157a; MCL 750.316, seven counts of attempted murder, MCL 750.91, one count of placing offensive or injurious substances in or near real or personal property, MCL 750.209(1)(b), one count of conspiracy to commit arson of a dwelling house, MCL 750.157a; MCL 750.72, and one count of arson of a dwelling house, MCL 750.72. People v Davis, unpublished opinion per curiam of the Court of Appeals, issued June 22, 2010 (Docket No. 290131). Defendant sought leave to appeal with our Supreme Court, and our Supreme Court remanded to this Court "for consideration of an issue raised by the defendant but not addressed in that court's opinion: whether the circuit court erroneously allowed the statement of the defendant's co-defendant, Caprice Mack, to be introduced into evidence through the preliminary examination testimony of Travis Crowley." People v Davis, _____ Mich _____; 790 NW2d 401 (2010). For the reasons set forth in this opinion, we affirm.

I. FACTS

The facts of this case were articulated in this Court's previous opinion:

This case arises from events that occurred on December 10, 2007, in Saginaw, Michigan. According to the testimony of witnesses, including that of Darell Hewitt, who agreed to testify "truthfully and completely... about the events that occurred December 10th, 2007," he, defendant, Caprice Mack, Dquan Favorite, Arnell Johnson, Jeremy Williamson and Deshawn Christopher were drinking and playing games at a house on Sanford Street when Tonya Wilson'scar was burned. Travis Crowley testified that his girlfriend, April Johnson, called him and told him that her mom's car "got blew up." Crowley said that Mack got on the phone and told him that "some boys had blew up Tonya['s] car, so... they said that they was gonna take care of it."

According to Hewitt, after Wilson's car burned, defendant and Favorite discussed retaliating against persons at a duplex located at 1622 Farwell Street in Saginaw because they thought Ronell Hinley had burned the car. Hewitt said that the group planned "to set the [Farwell] car on fire" and "to shoot anybody that come [sic] out of the house." Hewitt testified, however, that there was no agreement to set fire to the house or to kill anyone.

The evidence indicated that defendant, Hewitt, Favorite, Mack, Johnson and Williamson went to the house at Farwell to set the car on fire, but they failed to successfully do so. The men returned to the house on Sanford and then defendant, Hewitt, Favorite, Mack and Christopher made a second trip to the Farwell house. Defendant and Mack went into the garage with containers of gasoline and then ran out. This time, the car in the Farwell house garage was set on fire. There was evidence that Hewitt and Favorite had guns and that as the fire at the Farwell house spread from the garage to the house, people began to leave the house, and Hewitt and Favorite shot at the people as they left.

Defendant, Favorite, and Mack, who were all tried together, moved for a directed verdict on all counts. Defendant argued that Hewitt's testimony, in a light most favorable to the prosecutor, showed that there was a plan to burn a car in the Farwell house's garage. Defendant argued that this was insufficient to support a charge of attempted murder or conspiracy to commit first-degree murder. The trial court, concluding that the combination of starting a house on fire at 2:00 a.m. and shooting at people as they exited the house "establish[ed] evidence of attempt to murder," denied the motion for directed verdict as to all three defendants. On July 2, 2009, defendant moved for a new trial on the basis of newly discovered evidence, the evidence being an affidavit, purportedly from Hewitt, wherein Hewitt claims that he lied at trial to save himself, and that defendant "is innocent of all charges." The trial court denied the motion without an evidentiary hearing, and this appeal ensued. [Davis, unpublished opinion, pp 1-2 (footnotes omitted).]

The issue on remand concerns Mack's statement to Crowley during their telephone conversation, and the admission of Mack's statement through Crowley's testimony. Crowley testified that he was talking on the phone to his girlfriend, April Johnson, about the burning of her mother's car. Mack got on the phone and told Crowley that "they" were planning to retaliate with bombs. Crowley testified at the preliminary examination:

Q. Okay. When you had that conversation with your girl earlier, where she told you what had happened, did anybody else get on the phone with you?

A. Yes, sir.

Q. Who got on the phone?

A. Sean.

Q. And who is that, what's his full name?

A. Caprice.

Q. Okay. Caprice Mack?

A. Yes, sir.

* * *

Q. Did he tell you anything about what had happened or what they were going do [sic]?

A. Yes, sir, he told me that some boys in that neighborhood had come and blew up Tonya's car, so—

* * *

Q. Go ahead, Judge says you can answer. What did Mr.—what did Sean say?

A. Some boys had blew up Tonya car, so they was gonna, ah, they said that they was gonna take care of it, and they—

* * *

Q. What did he say?

A. When he got on the phone, he said, "Man, Bro, some niggers done blew up mom's car, but yeah, we got these bombs, they gonna get 'em back, we gonna take care of it."

Pursuant to the directive of our Supreme Court, we address whether the circuit court erroneously allowed the statement of Mack to be introduced into evidence through the preliminary examination testimony of Crowley.

II. ANALYSIS

Defendant raises two bases of alleged error in the admission of Mack's out-of-court statement through Crowley's testimony. He claims that the admission of the statement violated his Sixth Amendment right of confrontation, and that the statement was inadmissible hearsay.

Because defendant did not preserve this issue for appellate review by raising it in the trial court, this Court's review is for plain error affecting defendant's substantial rights. People v Pipes, 475 Mich 267, 274-279; 715 NW2d 290 (2006), citing People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Under the plain error rule, defendant must establish that (1) error occurred, (2) the error was plain, that is, clear or obvious, and (3) the plain error affected a substantial right of the defendant. Pipes, 475 Mich at 279, citing Carines, 460 Mich at 763-764. Reversal is warranted only when plain error results in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of the judicial proceedings, independent of defendant's guilt or innocence.Id.

A. CONSTITUTIONAL ERROR (RIGHT OF CONFRONTATION)

The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees criminal defendants the right to confront witnesses who testify against them. US Const, Am VI. Michigan's constitution guarantees the same right. Const 1963, art 1, § 20. The right of confrontation has been interpreted to prohibit the admission of out-of-court testimonial statements unless the accused has had a prior opportunity to cross-examine the declarant, and the declarant is unavailable. Crawford v Washington, 541 US 36, 53-54, 59, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004); People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005).

Only out-of-court statements that are testimonial implicate the Confrontation Clause. Crawford, 541 US at 50-52, 61, 68; People v Taylor, 482 Mich 368, 374; 759 NW2d 361 (2008). A testimonial statement is "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford, 541 US at 51. A statement is testimonial if its "primary purpose" or the questioning that elicits it "is to establish or prove past events potentially relevant to later criminal prosecution." Davis v Washington, 547 US 813, 814; 126 S Ct 2266; 165 L Ed 2d 224 (2006). Stated differently, statements are testimonial if they are made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use in a later trial or criminal prosecution. Id. at 821-822; Taylor, 482 Mich at 377-378. The rationale for limiting the Confrontation Clause's application to testimonial statements is that only testimonial statements cause the declarant to be a "witness" within the meaning of the Confrontation Clause. Davis, 547 US at 821. "It is the testimonial character of a statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Id.

The Supreme Court in Crawford did not attempt "to spell out a comprehensive definition of 'testimonial[,]'" but the Court recognized that "a casual remark to an acquaintance" is not a testimonial statement in the same way that an accuser making a formal statement to a government officer is. Crawford, 541 US at 51, 68. This Court similarly held inPeople v Bauder, 269 Mich App 174, 180-182; 712 NW2d 506 (2005), that a victim's statements to friends, coworkers, and the defendant's relatives shortly before her death were not testimonial.

In Taylor, our Supreme Court applied Crawford and concluded that inculpatory statements of a codefendant to an acquaintance were nontestimonial and admissible through the acquaintance's testimony. Taylor, 482 Mich at 378, 380. In that case, the three defendants— Marlon Scarber, Eric Taylor, and Robert King—were tried together on charges arising from a kidnapping and murder. One of the prosecution's main witnesses was Troy Ervin, an...