People v. Cunningham
| Docket Number | 359176 |
| Decision Date | 25 May 2023 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TODD WILLIAM CUNNINGHAM, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Muskegon Circuit Court LC No. 19-005209-FC
Before: Douglas B. Shapiro, P.J., and James Robert Redford and Christopher P. Yates, JJ.
A jury convicted defendant of conspiracy to commit armed robbery MCL 750.529; MCL 750.157a; assault with intent to rob while armed, MCL 750.89; felon in possession of a firearm (felon-in-possession), MCL 750.224f; and three counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant appeals as of right. We affirm.
Defendant's convictions arise from a conspiracy between defendant, Michael Monson, and Tabitha Bledsoe to rob a drug dealer named Mark Cheatum on August 13, 2019. Early that morning, Bledsoe called Cheatum to arrange purchasing drugs. Bledsoe met Cheatum on a street near defendant's home and according to defendant's instructions Bledsoe directed Cheatum to drive down a nearby alley where defendant and Monson lay in wait. However, the robbery attempt ultimately proved unsuccessful. While Bledsoe sat in Cheatum's vehicle in the alley, defendant and Monson approached on foot carrying guns and wearing masks and gloves. Monson shot at Cheatum's vehicle, but Cheatum escaped by running over Monson with his car and driving away. Defendant also repeatedly shot at the vehicle. Cheatum immediately drove to a police station to report the incident.
Bledsoe and Monson testified at trial admitting that they planned to rob Cheatum. The jury also viewed bodycam footage of Cheatum describing the incident to a police officer. Cheatum, however, did not testify at trial. The prosecutor also introduced surveillance video from inside and outside defendant's home on the morning of the incident. Defendant testified on his own behalf, acknowledging that he armed himself with a gun and that he agreed to have Monson's "back." He maintained, however, that once outside in the alley, he and Monson abandoned their robbery plan. According to defendant's version of events, Cheatum repeatedly ran over Monson with his vehicle for no reason, and defendant shot at Cheatum in an attempt to save Monson's life. The jury convicted defendant and he now appeals.
On appeal, defendant first argues that the trial court erred by admitting Cheatum's statements shown in the bodycam footage because Cheatum's statements were testimonial and their admission violated the Confrontation Clause given that defendant never had an opportunity to cross-examine Cheatum. Defendant, however, waived this issue at trial by affirmatively stating, twice, that he had no objection to the admission of the bodycam video. The affirmative approval constituted a waiver. See People v McDonald, 293 Mich.App. 292, 295; 811 N.W.2d 507 (2011). Alternatively, defendant contends that defense counsel provided ineffective assistance by failing to object to the admission of the bodycam footage. This ineffective-assistance claim lacks merit.
To fully address defendant's ineffective-assistance claim, we consider his underlying Confrontation Clause argument. "The Confrontation Clause of the Sixth Amendment bars the admission of testimonial statements of a witness who did not appear at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity to cross-examine the witness." People v Walker, 273 Mich.App. 56, 60-61; 728 N.W.2d 902 (2006) (quotation marks and citation omitted). When admitting Cheatum's statements in this case, the trial court relied on the ongoing-emergency doctrine, explained by the United States Supreme Court as follows:
Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [Davis v Washington, 547 U.S. 813, 822; 126 S.Ct. 2266; 165 L.Ed.2d 224 (2006).]
Factually, in Davis, the Court concluded that statements during a 911 call, describing events that were actually happening and seeking help "against a bona fide physical threat," were indicative of an "ongoing emergency," and that these statements were, therefore, nontestimonial. See id. at 827. In comparison, in a companion case, Hammon v Indiana, the victim was interviewed by police at her home, after an assault by her husband; she was interviewed in a separate room from her husband, and after answering questions, she signed an affidavit related to the events. Id. at 829-832. On these facts in Hammon, the Court concluded that the victim's statements to police at the scene of the crime, when "there was no immediate threat to her person," were not made while there was an emergency in progress and were instead a product of interrogation regarding the investigation of a possible crime. Id.
In this case, likening the current situation to the facts of Hammon, defendant argues that Cheatum's statements to Officer Trevon Durr were testimonial because Cheatum had reached a point of safety, and according to defendant, the emergency was, therefore, over. Defendant's argument proposes an overly-narrow reading of Davis, which the United States Supreme Court has itself rejected. In Michigan v Bryant, 562 U.S. 344, 359; 131 S.Ct. 1143; 179 L.Ed.2d 93 (2011), the Court provided "additional clarification with regard to what Davis meant by 'the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.'" Quoting Davis, 547 U.S. at 822. Specifically, the Bryant Court explained that whether the "primary purpose" of an interrogation is to enable police to meet an ongoing emergency requires an objective evaluation of "the circumstances in which the encounter occurs and the statements and actions of the parties." Bryant, 562 U.S. at 359. The Court recognized that Davis and Hammon- which both involved domestic-violence incidents with a known assailant who posed a threat to a specific victim-did not define the "outer bounds" of what constitutes an ongoing emergency; rather, "whether an emergency exists and is ongoing is a highly context-dependent inquiry." Id. at 363. For example, even if a threat to an initial victim has been neutralized, an emergency may remain ongoing when there is a continued threat to the police or the general public or both. Id. at 363-364. In assessing a possible ongoing risk, the type of weapon-such as a gun as compared to the use of fists-should also be considered to determine whether a threat has been neutralized or an emergency remains ongoing. Id. at 364. The victim's medical state is also relevant and "provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public." Id. at 365. Also relevant are the motives of the interrogators and declarants during the questioning, as well as what is known to them or perceived by them regarding whether the emergency is ongoing, as evinced by the questions asked and the statements made. Id. at 368-376.
Bryant also clarified that Davis's discussion of an ongoing emergency "should not be taken to imply that the existence vel non of an ongoing emergency is dispositive of the testimonial inquiry." Id. at 366. "As Davis made clear, whether an ongoing emergency exists is simply one factor-albeit an important factor-that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id. Ohio v Clark, 576 U.S. 237, 245; 135 S.Ct. 2173; 192 L.Ed.2d 306 (2015) (quotation marks and citation omitted).
In this case, viewing all the circumstances objectively Cheatum's statements depicted in the bodycam video were nontestimonial. The record shows that, after being shot at by masked gunmen and running over one of the men with his car, Cheatum drove immediately to the police station where he spoke to Officer Durr in the parking lot. Although they were at the police station, this was not a formal, station-house interrogation. The conversation took place outside, in a public area, and in a disorganized fashion. See Bryant, 562 U.S. at 366, 377. Both Cheatum and Bledsoe were excited and speaking over each other at times. One of the first things Cheatum can be heard to say is: "They trying to ambush me, trying to rob me." Both Cheatum and Bledsoe then described two masked men jumping out of the bushes and shooting at Cheatum's vehicle. Nothing in their statements suggested that the shooting involved a "purely private dispute or that the threat from the shooter[s] had ended." Cf. id. at 372. Further, Cheatum and Bledsoe informed Officer Durr that one of the gunmen had been hit by Cheatum's vehicle so that a potentially injured man also in need of help remained at the scene, a fact which Officer Durr...
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