People v. Boshell
| Decision Date | 13 May 2021 |
| Docket Number | 347207, No. 347208 |
| Citation | 337 Mich.App. 322,975 N.W.2d 72 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeremiah James BOSHELL, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Jeremiah James Boshell, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jean M. Cloud, Prosecuting Attorney, and Joshua R. Van Laan, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Katherine Marcuz and Michael Waldo) for defendant.
Before: Fort Hood, P.J., and Cavanagh and Tukel, JJ.
Defendant stood trial in two different cases that were consolidated for a jury trial. In Docket No. 347207, defendant appeals as of right his convictions of assault with intent to commit murder (AWIM), MCL 750.83 ; felon in possession of a firearm, MCL 750.224f ; carrying a weapon with unlawful intent, MCL 750.226 ; third-degree fleeing or eluding a police officer, MCL 257.602a(3) ; and two counts of possession of a firearm during the commission of a felony (second offense) (felony-firearm), MCL 750.227b.1 The trial court sentenced defendant to life imprisonment for the AWIM conviction, five years’ imprisonment for each felony-firearm conviction, and 30 to 60 months’ imprisonment for the remaining convictions. In Docket No. 347208, defendant appeals as of right his jury convictions of first-degree premeditated murder, MCL 750.316(1)(a) ; assault of a pregnant individual causing a miscarriage or stillbirth, MCL 750.90a ; and two counts of felony-firearm (second offense). The trial court sentenced defendant to life imprisonment without parole for the first-degree murder conviction, five years’ imprisonment for each felony-firearm conviction, and 375 to 600 months’ imprisonment for the assault-of-a-pregnant-individual conviction. This Court consolidated defendant's appeals.2 For the reasons provided below, we affirm.
Defendant's convictions in Docket No. 347208 arise from the shooting death of Lisa Fabbri in Macomb County. At the time of her death, Fabbri was 12 weeks’ pregnant. Her body was found inside her car, which in turn was found in the backyard of defendant's friend, Wallace Grala. Defendant and Fabbri were an on-and-off couple for many years, and they had a 16-year-old son at the time of Fabbri's death.
Grala lived on Frost Road in Lenox Township, which is in Macomb County. On the evening of August 14, 2016, defendant came over, unannounced, to visit Grala. Defendant was driving a gray F-150 pickup truck, and he drove it around Grala's attached garage and parked the vehicle behind the garage. At some point that evening, defendant used cocaine and donned a tactical vest. When Grala went to bed, defendant was still at the home. The next morning, on August 15, 2016, defendant was still present when Grala left for work.
That same afternoon, Grala's neighbor, Beverly Burgess, noticed a gray pickup truck parked behind Grala's house. At approximately 5:00 p.m., she noticed activity coming from Grala's driveway. Specifically, she heard an "elevated" woman's voice, which sounded angry or upset. Then Beverly saw a PT Cruiser in Grala's driveway with a woman next to it. At approximately 5:15 p.m., Beverly heard a gunshot, which sounded like it came from a smaller firearm—not a rifle. Beverly's husband, Bill Burgess, arrived home shortly thereafter around 5:30 p.m. After Bill arrived home, Beverly heard a truck "take off" on the gravel road. She explained that the truck had come from next door and that it was accelerating quickly on Frost Road. Beverly did not get a good look at the truck but saw that it was an "obscure gray" color. Bill identified the vehicle as a gray Ford pickup truck, which he recognized was not Grala's.
The next morning, August 16, 2016, Grala went out to his barn and saw a car parked in his field. Upon closer inspection, Grala saw that the car was Fabbri's PT Cruiser and that Fabbri was "hunched over" with blood all over herself. Grala called 911. Fabbri's death was classified as a homicide. She had been shot in the left side of the forehead, with an exit wound out the back, right portion of her head. The presence of stippling indicated that the gun was anywhere from three to six inches away from Fabbri's head at the time of the shooting. In the ensuing police investigation, tracks were noticed leading from Grala's driveway and terminating where the PT Cruiser was parked. The police recovered a spent shell casing from Grala's driveway and a bullet from the PT Cruiser's passenger-side door.
Later in the afternoon on August 16, 2016, defendant drove to a couple of different transmission shops in the Lapeer area, looking for two people named "Rob" and "Dylan." Defendant was wearing his tactical vest with lots of ammunition and had an AR-15 rifle, a shotgun, and a nine-millimeter handgun in the truck. Defendant was acting very upset and repeatedly stated that he was going to kill Rob and Dylan because he believed they had "set up" his girlfriend "to get whacked." The police were notified and were on the lookout for defendant.
Defendant's convictions in Docket No. 347207 arise from a series of offenses committed after the police eventually spotted defendant driving in Lapeer County, which led to a police chase. There were numerous vehicles involved in the chase, including unmarked vehicles from the Macomb County Sheriff's Department, marked and unmarked vehicles from the Lapeer County Sheriff's Department, and marked Michigan State Police vehicles. Evidence was presented that during the pursuit, defendant fired a gunshot out of his driver's side window. Neighbors heard the gunshot, and a bullet was later found inside one of the homes. There also was a large amount of broken glass in the street.
The pursuit continued onto North Saginaw Street. Defendant was driving erratically and aggressively, including in the oncoming traffic lane, at a high rate of speed. Defendant passed a pedestrian, Virgil Nordlund, narrowly missing him. According to Nordlund, defendant fired a shot out his passenger-side window, which caused glass to shatter and fall onto the road. Nordlund, a Vietnam veteran, testified that he heard and felt the bullet fly right by his head. Seconds later, as Detectives James Onyski and Grant Perry approached in an unmarked police vehicle, defendant fired another shot out his driver's side window, causing more glass to shatter. The pursuit continued for many more miles, ultimately ending on I-69, where defendant was apprehended after his vehicle ended up in a side ditch.
The police recovered an AR-15 rifle, a shotgun, a nine-millimeter pistol, and lot of ammunition from defendant's vehicle. The shell casing that was found in Grala's driveway was positively identified as having been fired from the nine-millimeter handgun found in defendant's possession. The spent bullet found in the PT Cruiser passenger door was of the same class to have been fired from the nine-millimeter gun, but it could not be positively identified as having been fired from any particular firearm.
Defendant was charged in Docket No. 347208 for the offenses related to Fabbri's shooting death in Macomb County and charged in Docket No. 347207 for the offenses associated with the police pursuit in Lapeer County. Both cases were prosecuted in Macomb County. Defendant moved to dismiss the crimes alleged to have been committed in Lapeer County, arguing that venue was not proper in Macomb County. The trial court denied the motion. The two cases were consolidated for trial, and defendant was convicted of the offenses as noted above. This appeal followed.
Defendant first argues that the trial court erroneously admitted an autopsy photograph and a series of text messages between him and Fabbri. He contends that the autopsy photograph admitted at trial, depicting Fabbri's dead fetus, as well as text messages unfairly prejudicial toward defendant should have been excluded under MRE 403. We disagree.
We review a trial court's decision regarding the admissibility of evidence for an abuse of discretion.
People v. Aldrich , 246 Mich. App. 101, 113, 631 N.W.2d 67 (2001). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. People v. Unger , 278 Mich. App. 210, 217, 749 N.W.2d 272 (2008).
When a defendant pleads not guilty to a crime, "the prosecution may offer all relevant evidence, subject to MRE 403, on every element." People v. Mills , 450 Mich. 61, 71, 537 N.W.2d 909 (1995) (emphasis added), mod 450 Mich. 1212, 539 N.W.2d 504 (1995). Indeed, a defendant's offer to stipulate certain elements does not alter this principle for those elements. Id. at 70 & n. 5, 537 N.W.2d 909. In this case, defendant was charged with assaulting a pregnant woman causing stillbirth or miscarriage. One of the elements of that offense is that the defendant assaulted a pregnant individual, and another element is that the defendant's conduct "resulted in a miscarriage or stillbirth ... or death to the embryo or fetus." MCL 750.90a(b). Therefore, the prosecution was entitled to offer all relevant evidence establishing that Fabbri was pregnant and that defendant's actions resulted in the death of Fabbri's fetus. Clearly, any photographs showing the dead fetus would be highly relevant to both of these elements and thus admissible, subject only to MRE 403.
MRE 403 states, in pertinent part, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...." "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." People v. Ortiz , 249 Mich. App. 297, 306, 642 N.W.2d 417 (2001) (quotation marks and citation omitted). Contrary to defendant's...
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... ... considering the totality of the circumstances, "it is ... reasonably likely that the judge's conduct improperly ... influenced the jury by creating the appearance of advocacy or ... partiality against a party." [ People v Boshell , ... ___ Mich.App. ___, ___; ___ N.W.2d ___ (2021) ... (Docket Nos. 347207, 347208); slip op at 13, lv pending, ... quoting Stevens , 498 Mich. at 171.] ... As described in Stevens , 498 Mich. at 171-172: ... This inquiry requires a fact-specific analysis. A single ... ...
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