People v. Byrd
| Decision Date | 19 January 2023 |
| Docket Number | 359350 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNETH DURELL BYRD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kent Circuit Court LC No. 21-000328-FC
Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.
Defendant appeals as of right his jury convictions of one count of first-degree felony murder, MCL 750.316(1)(b); one count armed robbery, MCL 750.529; one count of felon in possession of a firearm (felon-in-possession), MCL 750.224f; and three counts of carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life in prison without parole. For the reasons set forth in this opinion, we affirm.
Defendant's conviction stems from the murder of Ante Webb in an armed robbery gone wrong. Webb died of a gunshot to the abdomen after meeting with defendant for a drug deal in the basement laundry room of an apartment complex. Defendant and Webb had communicated over the phone about a drug deal throughout the day of the murder. Defendant had borrowed his wife's and friend's, Davonte Armstrong-Andrews, cell phones to contact Webb throughout the evening. After meeting, defendant and Webb engaged in a struggle during which defendant shot Webb.
Parts of Darron Williams's, defendant's brother, testimony pursuant to an investigative subpoena were deemed to be patently, obvious perjury. Williams subsequently agreed to testify under a second investigative subpoena to cure his earlier perjury and he agreed to testify at trial against his brother. In exchange, the prosecution agreed not to charge Williams with perjury and provide him with use immunity for any incriminating statements concerning the homicide. The prosecution also agreed to dismiss a pending heroin possession charge.
Williams testified during defendant's preliminary examination that he was present at the apartment complex the day of the murder and saw defendant wearing a black baseball cap. He further testified that he saw defendant making phone calls on a borrowed cell phone the day of the murder. He testified that after the shooting, defendant admitted that he robbed and shot the victim. Williams also testified that he helped defendant by taking and selling the gun used in the crime.
At the time of the trial, Williams resided in Texas. In the weeks before the trial, the prosecution mailed a subpoena to Williams. The prosecution also called Williams to arrange for him to fly to Grand Rapids to testify. The prosecution explained to him that it would pay his travel and lodging expenses and then return him to Texas as soon as possible. Williams's hesitancy about returning to Michigan caused the prosecution to contact Williams's attorney to encourage him to testify. Williams ultimately declined to return to the state of Michigan for the trial. The prosecution informed Williams through his attorney that his failure to attend the trial would be interpreted as a breach of his plea agreement.
The trial court found that the prosecution made a good-faith effort to procure Williams's testimony for trial and permitted the prosecution to read Williams's testimony taken during the preliminary examination into the record at trial. The jury found defendant guilty on all six charges. Defendant now appeals.
Defendant argues that he was denied his Sixth Amendment right to confront a witness because the trial court admitted Williams's preliminary examination testimony over defendant's objection. We disagree.
We review for an abuse of discretion the trial court's decision to admit evidence. People v Chelmicki, 305 Mich.App. 58, 62; 850 N.W.2d 612 (2014). "A trial court abuses its discretion when it selects an outcome that was not in the range of reasonable and principles outcomes." People v Roberts, 292 Mich.App. 492, 503; 808 N.W.2d 290 (2011). Whether a defendant's Sixth Amendment right of confrontation has been violated is a question of constitutional law that we review de novo. People v Fackelman, 489 Mich. 515, 524; 802 N.W.2d 552 (2011). This Court applies harmless error analysis to Confrontation Clause errors. People v Shepherd, 472 Mich. 343, 348; 697 N.W.2d 144 (2005). "A constitutional error is harmless if [it is] clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." People v Dendel (On Second Remand), 289 Mich.App. 445, 475; 797 N.W.2d 645 (2010) (quotation marks and citation omitted; alteration in original).
The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const, Am VI. Michigan's Constitution provides the same protections as the United States Constitution. Const 1963, art 1, § 20; Fackelman, 489 Mich. at 525. The introduction of out-of-court testimonial statements violates the Confrontation Clause unless the declarant appears at trial or the defendant has had a previous opportunity to cross-examine the declarant. Crawford v Washington, 541 U.S. 36, 53-54; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004).
The out-of-state witness was declared unavailable under MRE 804(a)(5), which states:
"The test for whether a witness is 'unavailable' as envisioned by MRE 804(a)(5) is that the prosecution must have made a diligent good-faith effort in its attempt to locate a witness for trial." People v Bean, 457 Mich. 677, 684; 580 N.W.2d 390 (1998). "The test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it." Id.
Defendant argues that the witness's unavailability resulted from the prosecution's failure to use the procedure under the uniform act to secure attendance of witnesses from without the state in criminal proceedings, MCL 767.91 et seq., and therefore, the prosecution could not establish that reasonable, good-faith efforts were made to locate the witness. Defendant relies on Barber v Page, 390 U.S. 719; 88 S.Ct. 1318; 20 L.Ed.2d 255 (1968), and Brumley v Wingard, 269 F.3d 629 (CA 6 2001),[1] for his argument that the uniform act must be followed before the trial court can find a witness unavailable. Neither of these cases stands for the proposition that the uniform act is the sole procedure by which an out-of-state witness must be procured.
Our Supreme Court has held that the prosecution is not obliged to apply to the courts of another state for process to compel production of a witness in order to show due diligence. People v Serra, 301 Mich. 124, 131; 3 N.W.2d 35 (1942). A line of cases follow the Serra Court's holding. See People v Kim, 124 Mich.App. 421, 424-425; 335 N.W.2d 58 (1983); People v McCullough, 51 Mich.App. 534; 215 N.W.2d 774 (1974); People v Ivy, 11 Mich.App. 427; 161 N.W.2d 403 (1968).
We recognize that a line of cases stated the contrary view. See People v Gaffney, 51 Mich.App. 526, 531; 215 N.W.2d 587 (1974); People v Freeland, 101 Mich.App. 501, 508-510; 300 N.W.2d 616 (1980), People v Biondo, 89 Mich.App. 96; 279 N.W.2d 330 (1979). Although the Gaffney Court questioned the validity of Serra, it stated that it was devoid of rulemaking power and that its decision was only binding on trial courts. Gaffney, 51 Mich.App. at 530. Gaffney, however, is not binding precedent. See MCR 7.215(J)(1). Accordingly, we decline to follow Gaffney and its progeny.
The record indicates that the prosecution made a good-faith effort to procure Williams for trial. The trial court, therefore, did not abuse its discretion when it ruled at trial that the prosecution made a good-faith effort to procure the out-of-state witness and permitted the prosecution to present Williams's preliminary examination testimony which had been subject to crossexamination.
Moreover, even if we were to find that the trial court erred by allowing Williams's preliminary hearing testimony at trial, the error was harmless. See Shepherd, 472 Mich. at 348. The record reflects that the prosecution presented to the jury ample evidence other than Williams's testimony that supported defendant's conviction. The witness testimony established that defendant arranged a drug deal with the victim with the intent of robbing him, but the robbery went wrong and defendant shot the victim. Afterward, defendant told multiple people about the robbery.
Makala Belaski testified that she saw defendant talk with the victim in the apartment complex parking lot the night of the evening. She further stated that the victim told her that he planned to go sell...
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