People v. Crosby
| Decision Date | 23 September 2021 |
| Docket Number | 350959,350961 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHNNY CLYDE CROSBY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEREK MAUHAMAD CUNNINGHAM, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-001424-02-FC
Before: Cameron, P.J., and Jansen and Gleicher, JJ.
These consolidated appeals arise from a joint jury trial of defendants, Johnny Clyde Crosby and Derek Mauhamad Cunningham. Defendants were convicted of first-degree murder MCL 750.316, conspiracy to commit first-degree murder, MCL 750.157a; MCL 750.316, witness bribing, intimidating, or interfering, MCL 750.122, and conspiracy to commit witness bribing, intimidating, or interfering, MCL 750.157a; MCL 750.122. Crosby was also convicted of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f and carrying a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b.
Defendants were sentenced to life imprisonment without parole for the first-degree murder and the related conspiracy convictions and to 3 to 10 years' imprisonment for witness bribing intimidating, or interfering and the related conspiracy conviction. Crosby was also sentenced to two to five years' imprisonment for felon-in-possession and to five years' imprisonment for felony-firearm. We affirm Crosby's convictions and sentences. We affirm Cunningham's convictions and sentences, but we vacate his judgment of sentence and remand with directions to enter an amended judgment of sentence setting a new due date for payment of his penalties, fees, and costs at or after the time the amended judgment of sentence is entered.
These appeals arise from the February 21, 2018 shooting death of the victim. In October 2016, the victim was robbed and assaulted and his motor vehicle was stolen.[1] The victim identified Cunningham as one of the perpetrators, and a warrant was issued for Cunningham's arrest. In April 2017, Krystle Begley was with defendants at a home in Detroit, Michigan. At that time, Cunningham was "on the run." According to Begley, Cunningham instructed Crosby that he should not "do anything" to the victim until after Cunningham was "incarcerated." Begley clarified that Cunningham wanted Crosby to "get rid of [the victim] . . . [s]o that he [could not] testify against him" and so Cunningham could "have the perfect alibi." Begley testified that she was willing to participate in murdering the victim because of her romantic feelings for Cunningham.
Cunningham was arrested on February 14, 2018. The probable cause conference was scheduled for February 22, 2018, and the preliminary examination was scheduled for February 27, 2018. On February 21, 2018, Begley spoke to Crosby on the telephone. Crosby asked Begley if she was "ready to go." Begley picked up Crosby, who was in possession of a firearm, in her red-colored vehicle. Begley and Crosby traveled to the victim's home on Woodside Street in Detroit. Begley and Crosby saw the victim standing in the street, and Crosby got out of the vehicle and shot the victim. Crosby then got back in the vehicle, and Begley drove away. The victim died from multiple gunshot wounds. The criminal charges against Cunningham in the carjacking case were dismissed, and he was released from jail.
After the murder, it was discovered that Cunningham had made numerous telephone calls to a phone number associated with Begley while he was in jail. Several eyewitnesses told law enforcement that the shooter was a passenger in a red-colored vehicle. One of the eyewitnesses provided law enforcement with the last four numbers of the vehicle's license plate. The vehicle was tied to Begley, who was arrested and interviewed by Sergeant Marcus Ways on March 5, 2018. Begley denied that she had knowledge concerning defendants' involvement in the murder. After the interview, Begley made a telephone call to Cunningham "[t]o tell him what evidence [law enforcement] had on him." Begley also instructed Cunningham that he and Crosby needed to "run."
Begley was charged with multiple crimes, including first-degree murder. After her trial commenced, she entered into a plea agreement, whereby she agreed to plead guilty to accessory after the fact in exchange for a sentence of three to five years' imprisonment so long as she provided complete and truthful testimony about the victim's murder. Defendants were convicted and sentenced as described above. These appeals followed.
Defendants raise several claims of ineffective assistance of counsel. "The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). Because this Court denied defendants' motions to remand, our review is limited to mistakes apparent from the existing record. People v Muhammad, 326 Mich.App. 40, 63; 931 N.W.2d 20 (2018).
We review preserved claims of error regarding discretionary rulings for an abuse of that discretion, which include a trial court's decision to jointly try multiple defendants, People v Furline, 505 Mich. 16, 20; 949 N.W.2d 666 (2020), rulings regarding the admissibility of evidence, People v Burger, 331 Mich.App. 504, 510; 953 N.W.2d 424 (2020), and denial of a motion for a new trial, People v Miller, 482 Mich. 540, 544; 759 N.W.2d 850 (2008). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." Burger, 331 Mich.App. at 510 (quotation marks and citation omitted). Challenges to the sufficiency of the evidence are reviewed de novo on appeal, People v Bailey, 330 Mich.App. 41, 46; 944 N.W.2d 370 (2019), as are constitutional issues, People v Parrott, ___ Mich. App___, ___;___ N.W.2d___ (2021) (Docket No. 350380); slip op at 3, lv pending.
Unpreserved issues "are reviewed for plain error affecting substantial rights." People v Spaulding, 332 Mich.App. 638, 652; 957 N.W.2d 843 (2020).
To avoid forfeiture under the plain error rule three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3) the plain error affected substantial rights. Reversal is warranted only if the plain error resulted in the conviction of an innocent defendant or if the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. [Id. at 653 (quotation marks and citation omitted).]
Crosby first argues that he was denied effective assistance of counsel when his attorney decided to forgo an alibi defense and successfully moved to admit an exhibit that implied that Begley had passed a polygraph examination. We conclude that Crosby is not entitled to relief.
In order to obtain a new trial on the basis of ineffective assistance of counsel, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich. at 51. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Muhammad, 326 Mich.App. at 63 (quotation marks and citation omitted). The defendant must establish both requirements and the factual predicate for his or her claim. Id. A defendant who claims to have been denied the effective assistance of counsel bears a heavy burden to overcome the presumption of effective assistance, People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018), and sound trial strategy, People v Solloway, 316 Mich.App. 174, 188; 891 N.W.2d 255 (2016).
Crosby waived his argument that he was denied effective assistance of counsel because his counsel decided to forgo an alibi defense at trial. After the prosecution rested, Crosby's attorney stated that, although he had filed a notice of alibi before trial, they were "not going to raise that defense." Counsel indicated that the decision was made with Crosby's permission, and Crosby stated on the record that he agreed. Crosby also agreed to waive testimony from several witnesses. By explicitly agreeing to forgo the alibi defense, Crosby waived review of this issue. See People v Kowalski, 489 Mich. 488, 503; 803 N.W.2d 200 (2011). Crosby may not seek review of a waived error because waiver extinguishes the error. See id.
Crosby further argues that defense counsel was ineffective for moving to admit Defense Exhibit C, which is a memorandum regarding Begley's plea deal. In pertinent part, the memorandum states: "It is further our agreement that Krystle Begley will, upon request of the Wayne County Prosecutor's Office, submit to polygraph examinations regarding his [sic] statement." Crosby argues that there was no sound basis for admitting the memorandum because it allowed the jury to infer that Begley took and passed a polygraph examination. We disagree.
Notably while discussing the admission of Defense Exhibit C, the prosecutor explained that she had spoken with Crosby's attorney about the polygraph reference and that they had agreed that any results could not be mentioned. The prosecutor also explained that a polygraph had been requested, but there was no indication that a polygraph examination had been conducted. The jury was not present when these statements were made. When the jury returned to the courtroom, Defense Exhibit C was admitted by stipulation without verbal...
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