People v. Gilmore
| Decision Date | 10 February 2015 |
| Docket Number | No. 318592,318592 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH LEE GILMORE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Wayne Circuit Court
Before: FORT HOOD, P.J., and JANSEN and GADOLA, JJ.
Defendant appeals as of right his jury trial convictions of two counts of armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), three counts of unlawful imprisonment, MCL 750.349b, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b. He was sentenced, as a fourth habitual offender, to 270 to 750 months' imprisonment for each armed robbery conviction, 110 to 240 months' imprisonment for his first-degree home invasion conviction, 70 to 180 months' imprisonment for each unlawful imprisonment conviction, 30 to 60 months' imprisonment for his felon in possession of a firearm conviction, and five years' imprisonment for his felony-firearm conviction. We affirm.
First, defendant argues that the trial court abused its discretion and violated his right to a fair trial when it denied his request for a one-day adjournment in order to secure the presence of two witnesses.1 We disagree. This Court reviews a trial court's decision to grant or deny an adjournment for an abuse of discretion, People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000), which "occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes," People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
A motion for an adjournment must be based on good cause. MCR 2.503(B)(1); People v Coy, 258 Mich App 1, 18; 669 NW2d 831 (2003). Factors that a court may consider in determining whether a defendant demonstrated good cause "include whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments." Coy, 258 Mich App at 18 (internal quotation marks and citation omitted). Defendant must also demonstrate prejudice resulting from the trial court's denial of the adjournment. Id. at 18-19; Snider, 239 Mich App at 421.
Defendant's request to adjourn was based on the absence of two officers that responded to the crime scene, Marcie Passalacqua and Gilda Mason. Defendant's purpose in obtaining Passalacqua's and Mason's testimony was to establish that the victims were unable to identify defendant immediately following the crime.2 We hold that the trial court did not abuse its discretion in denying defendant's request to adjourn. First, defendant has not established good cause because his negligence in securing the witnesses for trial resulted in the request to adjourn. Coy, 258 Mich App at 18-19. The prosecution's witness list was filed well before trial, and did not include Passalacqua or Mason as witnesses. Despite this, defendant did not subpoena Passalacqua or Mason as witnesses before trial, apparently assuming the prosecutor would subpoena the witnesses. It appears that defendant made no attempt to ensure the officers' presence before the first day of trial.3 While the trial court and the prosecution made efforts to locate the witnesses after trial began, they were unsuccessful, leading to defendant's request to adjourn on the third day of trial. Defendant's delayed efforts to secure the witnesses necessitated the request for adjournment. We further note that approximately two weeks before trial, the trial court granted defendant's motion to remove his attorney. At that time, the trial court clearly stated that no adjournments would be granted for discovery issues. Defense counsel acknowledged on the record that she had received defendant's file from defendant's former attorney, which included discovery from the prosecution. Based on these facts, we do not agree that there was good cause to adjourn.
Further, defendant has not shown he was prejudiced by the trial court's denial of his request to adjourn. Prejudice occurs when "the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Following the denial of the request to adjourn, the trial court deemed Passalacqua unavailable, and allowed her former testimony to be read to the jury. Defendant asserts that he was prejudiced because the jury did not have an opportunity to assess Passalacqua's credibility and demeanor, and because defense counsel indicated that she would have questioned Passalacqua differently or impeached Passalacqua more thoroughly if Passalacqua had testified in person at trial. However, defendant points to nothing substantial or significant that was missing from Passalacqua's former testimony that was read to the jury. Moreover, defendant's assertions that his first trial resulted in a hung jury merely because Passalacqua testified in person are speculative and founded on conjecture. In regard to Mason, defendant has not shown that her testimony would be anything other than cumulative of Passalacqua. Accordingly, defendant was not prejudiced and the trial court did not abuse its discretion in denying his motion to adjourn.
Defendant next argues that there was insufficient evidence presented at trial to establish his identity as a perpetrator of the offenses.4 We disagree. Challenges to the sufficiency of the evidence are reviewed de novo to "determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v Russell, 297 Mich App 707, 721; 825 NW2d 623 (2012) (citation omitted). All evidence is reviewed in the light most favorable to the prosecution, id., and "[a]ll conflicts in the evidence must be resolved in favor of the prosecution." People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
Defendant asserts that there was insufficient evidence presented at trial to establish his identity beyond a reasonable doubt. "[I]dentity is an element of every offense." People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Therefore, it is axiomatic that the prosecution must prove the identity of the defendant as the perpetrator of a charged offense beyond a reasonable doubt. See Russell, 297 Mich App at 721. "The credibility of identification testimony is a question for the trier of fact . . . ." People v Davis, 241 Mich App 697, 700; 617 NW2d 381 (2000).
At trial, the victims, Frank Graham and Italiya Anderson, identified defendant as one of the perpetrators. Although Graham never visibly observed defendant in the home during the robbery, Graham stated that he recognized defendant's voice based on previous conversations that he had with defendant during the three or four years that he had known him through their landlord-tenant relationship. In response to a question from the jury, Graham confirmed that he was "one hundred percent sure that it was [defendant's] voice" that he heard because he had talked to him "plenty of times." Anderson, who had known defendant for eight or nine years, testified that she saw defendant in the house during the incident, specifically noticing his Cartier glasses and light skin. She also recognized defendant's voice when he spoke with the otherperpetrators, asked Anderson where the money was located in the house, and instructed one of the perpetrators to check on a dog in the basement. Further, Graham testified that defendant threatened him by phone while defendant was in prison, and he identified defendant's voice on the recording of the phone call, which was admitted at trial. Thus, Graham's and Anderson's testimony provided sufficient evidence for a reasonable jury to conclude that defendant was one of the perpetrators of the offenses.
Defendant identifies a number of circumstances that purportedly undermined the credibility of the witnesses' identification of him, i.e., the witnesses did not identify defendant as a perpetrator during the 911 call made immediately following the incident; the witnesses did not identify defendant when Passalacqua and Mason responded to the scene; the witnesses identified defendant for the first time 12 hours after the incident; defendant's mouth was covered by a mask during the incident, which is inconsistent with Graham's and Anderson's assertion that they clearly recognized his voice; no physical evidence was collected from the scene; and the witnesses' testimony was impeached at trial. Based on these circumstances, defendant asserts that the prosecution did not present any reliable evidence of his identity. However, the question of identification testimony is a question for the trier of fact, and this Court will not interfere with the jury's role of determining the weight of evidence or the credibility of the witnesses. Id. at 700; People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012). Therefore, viewed in the light most favorable to the prosecution, Graham's and Anderson's testimony identifying defendant as a perpetrator provided sufficient evidence for a reasonable jury to find beyond a reasonable doubt that defendant committed the offenses.
Third, in his Standard 4 brief, defendant argues that the trial court abused its discretion when it denied the jury's request to review Passalacqua's testimony from his first trial. We disagree. This Court reviews for an abuse of discretion a trial court's decision regarding whether to allow a deliberating jury to review a witness's testimony. MCR 2.513(P); People v Davis, 216 Mich App 47, 56; 549 NW2d 1 (1996).
With regard to a jury's request to review testimony or evidence, MCR 2.513 provides:
If, after beginning deliberation, the jury requests a review of certain testimony or evidence that has not been allowed into the jury room under subrule (O), the court must exercise its discretion...
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