People v. Baskerville

Decision Date20 August 2020
Docket NumberNo. 345403,345403
Citation963 N.W.2d 620,333 Mich.App. 276
Parties PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Travun BASKERVILLE, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Timothy A. Baughman, Special Assistant Prosecuting Attorney, for the people.

Melvin Houston for defendant.

Before: Murray, C.J., and Ronayne Krause and Tukel, JJ.

Ronayne Krause, J.

A jury convicted defendant of second-degree murder, MCL 750.317 ;1 human-trafficking enterprise involving death, MCL 750.462d(b), MCL 750.462f(1)(d) ; human trafficking of a minor involving commercial sexual activity, MCL 750.462e(a) ; commercial child sexually abusive activity, MCL 750.145c(2) ; possession of child sexually abusive material, MCL 750.145c(4)(a) ; felon in possession of a firearm (felon-in-possession), MCL 750.224f ; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to serve prison terms of 60 to 100 years each for the murder and human-trafficking-enterprise-involving-death convictions, 25 to 50 years each for the human-trafficking-of-a-minor-for-commercial-sexual-activity and the commercial-child-sexually-abusive-activity convictions, 1 to 15 years for the possession-of-child-sexually-abusive-material conviction, one to five years for the felon-in-possession conviction, and a two-year term of imprisonment for the felony-firearm conviction. The trial court ordered that defendant's felony-firearm sentence be served consecutively with all of his sentences and that his sentence for human-trafficking enterprise involving death be served consecutively to his remaining five sentences, which are to be served concurrently. Defendant appeals as of right. We affirm defendant's convictions and sentences, but we remand for the ministerial task of correcting his sentencing guidelines scores. This appeal is being decided without oral argument under MCR 7.214(E)(1).

I. BACKGROUND

Defendant's convictions arise from the fatal shooting of Donald Calhoun during a pay-for-sex "date" with 17-year-old AB at a Detroit house on the morning of June 1, 2017. AB testified, in accordance with an immunity agreement, that she began dating defendant when she was 16 years old. She did not want to have sex for money; however, defendant persuaded her to do so, took the money she made, controlled and dictated all details of the enterprise and individual transactions, and refused her requests to stop by using physical violence against her. In the instant incident, after a "date" was arranged, Calhoun met with AB at her house on Burgess Street. According to AB, after engaging in oral sex using a condom as AB required, Calhoun asked to engage in vaginal intercourse without using a condom. AB refused and told Calhoun to leave. In turn, Calhoun demanded his money back. Some manner of dispute between AB and Calhoun ensued, at which point defendant entered the room with a "long gun." Defendant and Calhoun exchanged words, and Calhoun suggested that they go outside to settle the matter. Defendant shot Calhoun instead. AB's child, who was then one year old, was in a bedroom further back in the house at the time.

After "an hour or two," defendant and AB dragged Calhoun's body out of the house, put his body in a dumpster they found next to the vacant house next door, and pushed the dumpster to the detached garage of another vacant house on the other side of a grassy field. They also moved Calhoun's vehicle. The next day, on June 2, Calhoun's sister filed a missing-person report, and an investigation eventually led the police to the Burgess Street residence. After making several false statements, which she explained were at least partially made at defendant's direction,2 AB told the police that defendant shot Calhoun during a dispute. On July 7, AB led the police to Calhoun's body, which was badly decomposed and identified by Calhoun's sister on the basis of his tattoos. AB testified that she only observed one gun in the house or in defendant's possession and that she did not see Calhoun with a gun. However, Calhoun's autopsy revealed that Calhoun had been shot by bullets fired from two different guns.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that he committed second-degree murder or engaged in human trafficking of a minor involving commercial sexual activity. We disagree.

We review de novo a challenge to the sufficiency of the evidence. People v. Bailey , 310 Mich. App. 703, 713, 873 N.W.2d 855 (2015). When ascertaining whether sufficient evidence was presented at trial to support a conviction, we must "review[ ] the evidence in a light most favorable to the prosecutor to determine whether any tier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v. Reese , 491 Mich. 127, 139, 815 N.W.2d 85 (2012) (citation and quotation marks omitted). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v. Nowack , 462 Mich. 392, 400, 614 N.W.2d 78 (2000). All conflicting evidence, and any reasonable inferences that may be drawn from that evidence, must be resolved in favor of the prosecution. People v. Lockett , 295 Mich. App. 165, 180, 814 N.W.2d 295 (2012).

Before we address any specific convictions, the gravamen of defendant's argument on appeal is that most of the evidence against him consisted of AB's testimony, which he alleges was not credible and not corroborated, so it should not be relied upon. Defendant notes that the trial court harbored some doubt that AB told the complete truth regarding the circumstances of Calhoun's murder, especially given the discrepancy between her testimony that she only saw one gun and the forensic evidence that Calhoun had been shot by two guns. We do not dismiss the trial court's reservations. See McGonegal v. McGonegal , 46 Mich. 66, 67, 8 N.W. 724 (1881). However, although it is sometimes appropriate for a court to remove a credibility assessment from the jury's consideration, those circumstances are extremely rare and require testimony that borders on being impossible. See People v. Lemmon , 456 Mich. 625, 642-646, 576 N.W.2d 129 (1998). Otherwise, only the jury may determine the credibility of a witness or the weight to be afforded any evidence, and it may convict a defendant based solely on the testimony of an accomplice. People v. Koukol , 262 Mich. 529, 532-533, 247 N.W. 738 (1933) ; People v. Unger , 278 Mich. App. 210, 222, 749 N.W.2d 272 (2008). "[T]he credibility of witnesses is a matter of weight, not sufficiency." People v. Scotts , 80 Mich. App. 1, 9, 263 N.W.2d 272 (1977).

"[A] jury is free to believe or disbelieve, in whole or in part, any of the evidence presented." People v. Perry , 460 Mich. 55, 63, 594 N.W.2d 477 (1999). The jury may choose to believe part of a witness's testimony and disbelieve another part of the same witness's testimony. See Ferris v. Neville , 127 Mich. 444, 449-451, 86 N.W. 960 (1901) ; Detroit Electric Light & Power Co. v. Applebaum , 132 Mich. 555, 557-558, 94 N.W. 12 (1903). Defense counsel thoroughly explored various weaknesses in AB's testimony. The trial court properly instructed the jury that it should exercise caution in considering the testimony of an accomplice who had received an immunity agreement in exchange for testimony, that it could consider a witness's prior inconsistent statements in determining the witness's believability, and that it was permitted to believe that a witness lied about some things but told the truth about others. AB's testimony was not so incredible that it should have been taken from the jury. The jury was fully aware that AB's testimony was potentially problematic, and it nevertheless chose to believe AB, as was the jury's right. Therefore, we reject defendant's argument that his convictions could not be based on AB's testimony alone.

A. SECOND-DEGREE MURDER

The elements of second-degree murder are "(1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death." People v. Smith , 478 Mich. 64, 70, 731 N.W.2d 411 (2007). "Malice is defined as ‘the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.’ " People v. Werner , 254 Mich. App. 528, 531, 659 N.W.2d 688 (2002) (citation omitted). Second-degree murder evolved from common-law murder, under which "malice aforethought" was understood for centuries to be the "grand criterion" distinguishing murder from less "wicked" homicides. People v. Hansen , 368 Mich. 344, 350-351, 118 N.W.2d 422 (1962) (citation and quotation marks omitted); People v. Mesik (On Reconsideration) , 285 Mich. App. 535, 544-547, 775 N.W.2d 857 (2009) (citation and quotation marks omitted).

AB's testimony at trial—which the jury was free to, and clearly did, believe—was that defendant intervened in a dispute between AB and Calhoun, which led to further arguing between Calhoun and defendant. When Calhoun suggested that they step outside, defendant shot Calhoun and then hid his body in a dumpster. The evidence therefore shows that defendant intentionally killed Calhoun; and no mitigating circumstances, such as self-defense or an accident, were present to negate the clear presence of malice. See Mesik , 285 Mich. App. at 546, 775 N.W.2d 857. Defendant argues that AB did not know how...

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