People v. Gearns

• Decision Date: 05 May 1998
• Docket Number: 107834,Nos. 8-9,Docket Nos. 101206,s. 8-9
• Citation: 577 N.W.2d 422,457 Mich. 170
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Alan GEARNS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donnell Latron THOMAS, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 422

577 N.W.2d 422

457 Mich. 170

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Alan GEARNS, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Donnell Latron THOMAS, Defendant-Appellee.

Docket Nos. 101206, 107834.

Calendar Nos. 8-9.

Supreme Court of Michigan.

Argued Nov. 5, 1997.

Decided May 5, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for People in Gearns.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Catherine Langevin Semel, Assistant Prosecuting Attorney, for People in Thomas.

Mark J. Kriger, Detroit, for defendant Gearns.

State Appellate Defender by Gail Rodwan, Detroit, for defendant Thomas.

Opinion

BRICKLEY, Justice.

I

In these cases, we are called upon to determine three issues. First, whether any constitutional error occurred when the people called a witness to the stand knowing that the witness would assert the privilege against self-incrimination in front of the jury. Second, if this was not constitutional error, was it evidentiary error? Finally, if this was evidentiary error, we must decide the proper level of assurance a reviewing court must have for preserved nonconstitutional error. We conclude that no constitutional error occurred in either case and that, while evidentiary error did occur, it was harmless because it is highly probable that the evidence did not contribute to the verdicts in light of the strength and weight of the untainted evidence.

II

A. People v. Gearns

Defendant Jeffrey Gearns was tried before a jury and convicted of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). The Court of Appeals affirmed his conviction in an unpublished per curiam opinion.

On April 3, 1991, the defendant met the deceased, Douglas Lineberry, in the bar of a Chi-Chi's restaurant in Dearborn. They conversed, and defendant became heavily intoxicated. The defendant, a regular at that bar, left with Mr. Lineberry. Later that evening, defendant called Gary Edwards, a friend of his, in Florida. Mr. Edwards testified that defendant sounded intoxicated and wanted him to play the flute over the speaker phone. Mr. Edwards testified that he heard another person in the background, who was laughing and "partying" and whom defendant stated he met at the bar. The next day, Mr. Edwards received another call from defendant asking him to recommend a good criminal attorney. When Mr. Edwards inquired regarding why, the defendant indicated that someone was shot and there was some kind of fatality. When Mr. Edwards called him back with the name of an attorney, defendant stated, "I guess I will see you in ten years."

The victim's wife reported him missing, and a Chi-Chi's manager noticed a car in the parking lot for several days, which belonged to the victim. The victim's body was discovered in a wooded area near Brighton with a single gunshot wound to the forehead. It was a 9 mm shell, shot from about four inches. The medical examiner testified that the deceased had been dead for approximately three to four days before the discovery of the body. In addition to the gunshot wound, there were abrasions on the sides of the neck and on the back of the hand of the deceased, and dried blood was found under his fingernails, which matched neither the deceased nor defendant. In the pocket of the deceased's clothing was a Chi-Chi's matchbook with defendant's name and telephone number written on it.

A police sergeant called the number in the matchbook and left a message on an answering machine. When the defendant called back, the sergeant asked him if he knew Mr. Lineberry, to which defendant responded that he had not heard of him. The sergeant requested that the defendant come in for an interview; however, he did not.

On April 12, the police executed a search warrant at defendant's home in Dearborn Heights. Defendant and his brother, Gregory Gearns, were present, and one officer testified that defendant was on his hands and knees scrubbing the kitchen floor when he entered the home. One of the evidence technicians sprayed luminol on various areas of the home. She testified that it would glow in the dark when exposed to certain substances, including blood and a chlorine substance present in some household cleaners and certain metals. The test produced a glow on a puddle near defendant's car in the garage and the pattern of a set of footprints in the corner of the basement. There also was a trace of denim material found in the trunk of the defendant's car, but a positive match could not be obtained with the blue jeans worn by the victim. There was also positive presence of human blood on a trace of carpet, but it could not be typed.

The officers found 9 mm ammunition, the same caliber as the bullet that killed the deceased. Defendant was the registered owner of a 9 mm Smith & Wesson pistol, which was not found in the search. Some type O blood was found in the trunk, consistent with defendant's blood type, and type A blood was found in the trunk, but no type B blood (the victim's blood type) was found. Defendant's father testified that defendant and Gregory Gearns lived together at the Dearborn Heights address.

After the jury was sworn, the prosecutor asked for a ruling from the court outside the jury's presence. The prosecutor wanted to call Gregory Gearns as its first witness. Gregory Gearns' attorney indicated that he would assert the Fifth Amendment and refuse to answer questions. The prosecutor had offered Gregory Gearns immunity from prosecution for a charge of accessory after the fact to murder, which the prosecution argued was sufficient to cover any information that the prosecutor knew or was likely to ever know concerning Gregory Gearns' involvement. The judge indicated that she would hold Gregory Gearns in contempt if he refused to testify. His attorney indicated that he could not be held in contempt unless he actually refused to testify, and counsel for Gregory Gearns requested that the refusal take place outside the jury's presence. The prosecutor indicated his acquiescence, but the judge expressed her opinion that the refusal had to occur in front of the jury; otherwise, Gregory Gearns would not be in contempt of court.

The jury was called in, and Gregory Gearns testified about the address at which he resided. When asked with whom he lived at that address, he stated that he was taking the Fifth Amendment. On request of the prosecutor, the judge instructed the witness that he had no valid privilege and must answer the question. Counsel for Gregory Gearns indicated that he believed the privilege was valid. The prosecutor asked the court to hold Gregory Gearns in contempt. Counsel for Gregory Gearns asked that the case be dismissed. The jury was excused. Defense counsel argued it was impossible that the prosecutor could have believed that Gregory Gearns was going to testify. The judge denied the motion because Gregory Gearns did not say anything detrimental about his client, and defense counsel was not counsel for Gregory Gearns, who did not say anything about defendant.

B. People v. Thomas

Defendant Donnell Thomas was tried by a jury and convicted of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553 (he was charged with second-degree murder), possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424. The Court of Appeals reversed his conviction in an unpublished per curiam opinion. These charges arose from a shooting that occurred as several men were leaving a party on Park Street in Saginaw. The prosecutor's theory was that Thomas shot and killed his friend, Curtis Madison, while trying to shoot members of a rival gang.

Thomas and five other friends, Curtis Madison, Tarkeus Gee, Robert Jamerson, Demarcus Wesby, and Terry King left the party around 9:30 p.m. with two others. A pickup truck heading north on Park Street drove by, and the occupants fired shots at the group. Mr. Madison and Mr. King were already in Mr. Madison's car. Mr. Jamerson and defendant returned gunfire--Mr. Jamerson from a .38 caliber revolver and defendant from a 9 mm semiautomatic pistol. Defendant and Mr. Jamerson left before the police arrived.

A 9 mm bullet was recovered from Mr. Madison, the victim. Its entry indicated it did not come from the road where the truck occupants fired shots. The expert's laser trajectory indicated defendant was in a position consistent with the line of fire, although it could also have come from a building. The 9 mm pistol was not recovered. Mr. King indicated that defendant was firing at the blue truck in their direction. Defendant offered a statement indicating that Mr. Wesby also fired shots. There was additional testimony that shots might have been fired from a nearby building. Thomas' theory was that the prosecutor failed to prove that he was the killer beyond a reasonable doubt and that, even if the jury believed he fired the shot, it was not murder.

The prosecutor and the police went to interview Mr. Gee in jail before trial, and Mr. Gee indicated that he had no intention of testifying. Mr. Gee also said there was nothing anyone could do to make him testify. The prosecutor requested that the court compel him to take the stand. The court asked Mr. Gee why he was refusing--if he was going to assert the Fifth Amendment privilege. The prosecutor agreed to grant immunity. The prosecutor and the court agreed that if Mr. Gee still refused to testify, the prosecutor would have the right to call him. The defense maintained that to call him would be unfairly...