People v. Bushard

• Decision Date: 29 September 1993
• Docket Number: No. 6,D,Docket No. 90889,6
• Citation: 444 Mich. 384,508 N.W.2d 745
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anna Marie BUSHARD, Defendant-Appellant. Calendarecember Term 1992.
• Court: Michigan Supreme Court

Page 745

508 N.W.2d 745

444 Mich. 384

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anna Marie BUSHARD, Defendant-Appellant.

Docket No. 90889.

Calendar No. 6, December Term 1992.

Supreme Court of Michigan.

Argued Dec. 9, 1992.

Decided Sept. 29, 1993.

Jeffrey L. Sauter, Pros. Atty., William M. Worden, Melissa A. Coulter, Asst. Pros. Attys., Charlotte, MI, for plaintiff-appellee.

Steven T. Lett, Wilson, Lawler & Lett, Lansing, for defendant-appellant.

OPINION

BOYLE, Justice.

Anna Bushard was convicted by a jury of conspiracy to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1), and first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. The object of the conspiracy was the murder of Rodney Fancher, the live-in fiance of the defendant's daughter, Cora. In a per curiam opinion, the Court of Appeals affirmed Bushard's convictions. Unpublished opinion, decided January 11, 1991 (Docket No. 112817). We granted leave to appeal, 440 Mich. 889, 487 N.W.2d 758 (1992).

The defendant raises four issues: (1) whether the admission of testimony that defendant "shook her head" when asked by a cellmate if she realized she was admitting her guilt, was a violation of the defendant's Fifth Amendment right to remain silent; (2) whether cross-examination of the prosecutor's chief witness was improperly limited, contravening the defendant's right of confrontation; (3) whether a coconspirator's statement was admissible against the defendant; and, (4) whether the retrial of defendant violated the constitutional ban against double jeopardy. Because the defendant's conviction does not constitute a miscarriage of justice, M.C.L. § 769.26; M.S.A. § 28.1096, we affirm the decision of the Court of Appeals upholding the defendant's conviction of conspiracy to commit first-degree murder and first-degree murder. ¹

I

The defendant, Anna Bushard, was tried jointly with Tony Hill for first-degree murder and conspiracy to commit murder. Both were convicted. However, because of a trial court error, Bushard was granted a new trial. On retrial, the defendant was again convicted of first-degree murder and of conspiracy to commit first-degree murder.

Peggy Stevens' testimony was the primary evidence at trial. However, the trial was not simply a one-to-one credibility contest. Stevens testified that Anna Bushard had originated the idea that would lure the deceased from his home to the appointment with his murderer. Anna suggested that Rod Fancher should be told that they had posted a note at Don's Truck Stop saying that Rod was looking for work. Tony Hill was to call Rod and arrange to meet him on the pretext that he had seen such a note and wanted to hire him to unload a truck. She also testified that Anna had said that simply breaking Fancher's arms and legs would do no good, that he had to be shot, and that she would pay the $1000 fee for the killing in installments. Peggy testified that after the murder Anna gave her $100, and she, in turn, gave it to Hill.

Bushard's cellmate, Rhonda Howlett, reiterated her testimony that Anna Bushard told her that she had given money to Peggy to give to Tony and, corroborating Peggy's testimony, that the defendant said that "the way they planned it" the murder of Rod Fancher was supposed to occur on Wednesday, October 2, 1985, not on Thursday when it actually occurred. Cora Bushard's testimony established that Rod had received phone calls from a man who initially asked him tounload a truck on October 2, and then rescheduled the meeting for October 3. The jury was given an accomplice instruction, but it was entitled to conclude from Howlett's testimony that Anna Bushard could only have known about the failed October 2 attempt if she had been part of the conspiracy.

Evidence was also introduced through the interrogating detective that coconspirators Harold Stevens and Peggy Stevens, separately questioned, gave identical statements regarding Bushard's involvement.

Testimony of the deceased's mother, Mary Fancher, also corroborated Steven's account of Anna's involvement and may have been critical in jury deliberations. ² Mary Fancher testified that she asked Rod on Wednesday night (October 2) how the man who had called him knew he was looking for work and

"then Anna spoke up and said that she had written Rodney's name and phone number on a slip of paper and gave it to Peggy and Harold to take and put on Don's--at Don's Truck Stop on the bulletin board."

Police investigation corroborated Peggy's testimony that no note was ever posted at Don's Truck Stop. The jury was thus entitled to conclude that the fictional note was a ruse and that Anna's statement that the call had come in response to a note she had personally written and allegedly given to Peggy and Harold to post, confirmed her participation in the plot to kill Rod Fancher.

Defendant also acknowledged that she had given Harold $100, but said it was to repair her car. She denied having said she wrote a note to be posted at Don's Truck Stop. Defendant testified that her daughter Cora, Rod's girl friend, had asked her in September if she would post a note. However, the jury was also entitled to credit Cora Bushard's contrary testimony concerning the note. Cora testified that the defendant told her that Peggy posted a note at Don's Truck Stop. While Cora also stated that she did not recall when any discussion about a note occurred, she admitted that she probably did not know about it before she asked her mother on October 2, 1985, how the man who called Rod knew he was looking for work.

Two juries have now considered the credibility of evidence implicating Anna Bushard and resolved the credibility question adversely to the defendant. We find no basis to conclude that the conviction of Anna Bushard constitutes a miscarriage of justice.

II

A

The defendant first complains that the testimony of Rhonda Howlett, a cellmate, was a violation of her right to silence under the Fifth Amendment. Howlett testified that while in jail, Bushard discussed her role in the plan to murder Fancher and when another cellmate asked Bushard whether she realized she was admitting her guilt, Anna "just shook her head, didn't say anything else." We agree with Justice Levin ³ that Howlett's testimony was evidence of Bushard's nonverbal response to a question presented during a conversation with her cellmates that the defendant actively took part in. Thus, the testimony was not admitted as a violation of the defendant's right to silence under the Fifth Amendment.

B

Although not raised at trial, the defendant complains that her constitutional right of confrontation was violated on retrial when the court refused to allow the defendant to cross-examine Peggy Stevens, the prosecutor's chief witness, regarding prior unprosecuted criminal activity. ⁴ The defense contends that cross-examination concerning the welfare application fraudulently filed in defendant's name would show Peggy Stevens' tendency to accuse her mother of criminal activity. It is also claimed that cross-examination of Peggy regarding prior statements made by codefendant Tony Hill, that he was paid $100 for his participation in the theft of a trailer and that the money had nothing to do with the murder of Rod Fancher, would assist the jury in assessing Stevens' credibility. ⁵

Dealing with the assertions in inverse order, it is clear that the trial judge properly prevented cross-examination with respect to Tony Hill's statement regarding the reason for payment to him of $100. The question contained a hearsay assertion, and no showing of the witnesses' unavailability was made so as to bring it within the hearsay exception, MRE 804(b)(1). ⁶

Second, although evidence of a false charge of welfare fraud generally may have been helpful to suggest Peggy Stevens' hostility toward her mother, limitation of impeachment in these circumstances did not violate defendant's right of confrontation. A trial court has wide latitude in deciding whether particular evidence indicates partiality. 1 McCormick, Evidence (4th ed), § 39, pp. 134-135. Stated otherwise, "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (emphasis in original); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). ⁷

In Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974), the Court found a denial of confrontation where the trial court prevented any exploration of a witness' "bias," resulting from the witness' status as a juvenile on probation, for its bearing on the motivation for his testimony incriminating the defendant. By contrast, in the instant case, the welfare incident had been resolved without prosecution, and the defendant fully explored the bias inherent in Peggy Stevens' status as a fully immunized witness. Stevens was extensively examined regarding the fact that she had received complete immunity from prosecution for her admitted involvement in the conspiracy to murder in exchange for her testimony implicating her mother. Although inquiry into Stevens' prior conduct may have been helpful in discrediting Peggy Stevens, the limitation complained of did not deny the defendant a fair trial or violate her right of confrontation.

C

The defense also claims the trial court committed error requiring reversal by admitting the hearsay statement made by coconspirator, Tony Hill, to Peggy Stevens that he told the victim that "this was the way she [Anna] wanted it done." In a pretrial motion, the defense challenged the admission of Hill's statement to Stevens because it occurred after the murder and was thus not a statement made "in furtherance" of the conspiracy because any conspiracy had been completed at that point.

The trial court deferred...