People v. Matthews
| Decision Date | 19 December 2013 |
| Docket Number | No. 308369,No. 308640,308369,308640 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEVON RAYMON MATTHEWS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Court of Appeals, State of Michigan
ORDERPeople of MI v Devon Raymond Matthews
Docket No. 308369;308640
Donald S. Owens
Presiding Judge
Kathleen Jansen
Joel P. Hoekstra
Judges
The Court orders that the November 19, 2013 opinion is hereby VACATED, and a new opinion is attached.
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
_________________
Chief CIerk
UNPUBLISHED
Wayne Circuit Court
Before: OWENS, P.J., and JANSEN and HOEKSTRA, JJ.
This matter involves a consolidated criminal appeal from the circuit court. In Docket No. 308369, defendant Devon Matthews appeals as of right from his bench trial convictions of one count of second-degree murder, MCL 750.317, three counts of assault with intent to do great bodily harm less than murder, MCL 750.84(1)(a), one count of felon in possession of a firearm (felon in possession), MCL 750.224f, and one count of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to concurrent prison terms of 30 to 35 years for the second-degree-murder conviction, 5 to 10 years for each of the assault-with-intent-to-do-great-bodily-harm convictions, and 2 to 5 years for the felon-in-possession conviction, and to a consecutive prison term of 2 years for the felony-firearm conviction. We affirm defendant Matthews's sentence.
In Docket No. 308640, defendant Darius Theriot appeals as of right from his jury trial convictions of one count of second-degree murder, MCL 750.317, three counts of assault with intent to commit murder, MCL 750.83, one count of assault of a pregnant individual causingdeath to fetus, MCL 750.90b(a), and one count of felony-firearm, MCL 750.227b. He was sentenced as a second-offense habitual offender to concurrent prison terms of 45 to 80 years for the second-degree-murder conviction and each of the assault-with-intent-to-murder-convictions, and 10 to 15 years for the assault-causing-death-to-fetus conviction, and to a consecutive prison term of 2 years for the felony-firearm conviction. We affirm defendant Theriot's convictions, but we vacate his sentence and remand for resentencing.
This case arises from a drive by shooting. Defendant Theriot drove the vehicle from which defendant Matthews shot an AK-47, killing a pregnant woman and injuring three others.
Defendant Matthews argues that the information in the presentence investigation report (PSIR) did not support a score of 15 points for OV 5, and thus, he is entitled to resentencing for his second-degree-murder conviction. We disagree.
We review for clear error the trial court's factual findings that serious psychological injury requiring professional treatment occurred to the victim's mother. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). We review de novo whether these findings were sufficient to assess 15 points for OV 5. Id. The trial court's factual findings must be supported be a preponderance of the evidence. Id.
The trial court must assess 15 points for OV 5 if "[s]erious psychological injury requiring professional treatment occurred to a victim's family." MCL 777.35(1)(a). The fact that professional treatment has not been sought is not conclusive. MCL 777.35(2). A trial court must assess 15 points "if the serious psychological injury to the victim's family may require professional treatment." Id. (emphasis added).
The trial court did not clearly err when it determined that the victim's mother suffered psychological injury that may require professional treatment. Citing People v Portellos, 298 Mich App 431, 441-442, 449; 827 NW2d 725 (2012), defendant argues that the victim's impact statement only describes the mother's disbelief and grief at the loss of her daughter, which is not evidence that she suffered a psychological injury requiring counseling. However, the impact statement also stated that the victim's mother had not tried counseling yet, which as the trial court noted, could be an indication that she was contemplating treatment. Additionally, as the trial court also noted, the impact statement described more than just natural and ordinary grief arising from the death of a loved one, particularly because of the nature of the crime. Accordingly, we conclude that these findings were sufficient to assess 15 points for OV 5.
However, even if we determined that the trial court erred by assessing 15 points for OV 5, defendant is not entitled to resentencing because the scoring error would not alter his appropriate guidelines range. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).
First, defendant Theriot argues that the trial court abused its discretion by prohibiting defendant Theriot from asking any of the witnesses about his demeanor immediately after the shooting. We agree, but because the error was harmless, we find that defendant is not entitled to relief.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. People v Herndon, 246 Mich App 371, 406; 633 NW2d 376 (2001). However, to the extent defendant Theriot argues that the trial court's ruling violated his constitutional right to present a defense, that argument is unpreserved, as an objection based on the rules of evidence does not preserve the issue of whether the exclusion violated a constitutional right, and thus, we review it for plain error affecting substantial rights. See People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003)
Defendant Theriot argues that any testimony regarding his nonverbal behavior and demeanor was admissible as nonassertive conduct. Defendant Theriot argues that his reaction to the shooting, whether by his sudden silence, erratic driving, or body language, was not a statement for hearsay purposes.1 Defendant Theriot also argues that his statement "what the hell was that?" made immediately after the shooting was not hearsay because it was not assertive or offered for the truth of the matter asserted, and thus was admissible. At trial, the trial court prohibited defendant Theriot from admitting into evidence any witnesses' observations of his reaction to the shooting. The trial court determined that evidence of defendant Theriot's reaction to the shooting contained an implied assertion, making it hearsay.
MRE 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." "A 'statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." MRE 801(a). Quoting 2 McCormick on Evidence (4th ed), § 250, pp 110-111, this Court explained the rationale for excluding nonassertive conduct from the definition of hearsay:
People do not, prior to raising their umbrellas, say to themselves in soliloquy form, "It is raining," nor does the motorist go forward on the green light only after making an inward assertion, "The light is green." The conduct offered in the one instance to prove it was raining and in the other that the light was green, involves no intent to communicate the act sought to be proved, and it was recognized long ago that purposeful deception is less likely in the absence of intent to communicate. [People v Jones (On Rehearing After Remand), 228 Mich App 191, 214; 579 NW2d 82, mod in part on other grounds 458 Mich 862 (1998).]
The key determination is whether an assertion was intended. People v Watts, 145 Mich App 760, 762; 378 NW2d 787 (1985). Behavior that is "so patently involuntary" such as the "spontaneous act of crying" cannot be treated as an assertion. People v Davis, 139 Mich App 811, 813; 363 NW2d 35 (1984).
Reactions to a shooting are likely spontaneous outbursts, and thus, "so patently involuntary" that they could not be intended assertions. Defendant Theriot's display of surprise, anger, silence, and erratic driving were likely involuntary reactions to the shooting, and they do not indicate that he had an "intent to communicate the act sought to be proved." Thus, defendant Theriot should have been permitted to ask questions regarding his demeanor following the shooting, so long as the conduct involved was involuntary and spontaneous, and not intended as an assertion. Accordingly, the trial court erred in this regard.
Likewise, defendant Theriot's question "what the hell was that?" made after the shooting was not hearsay. As stated, to qualify as hearsay, the "statement" must be an "assertion". Defendant Theriot's question is incapable of being true or false, and thus, is not an assertion. Jones (On Rehearing After Remand), 228 Mich App at 204-205; see also United States v Thomas, 451 F3d 543, 548 (CA 8, 2006) (). Even if the question could qualify as an assertion, the question was not offered to prove the matter asserted, i.e., what something was. Rather, the question was offered to show that defendant Theriot was surprised the shooting occurred. Although, as the trial court suggested, there may be an implied assertion that defendant Theriot is innocent of being an aider and abettor because he did not know there was going to be a shooting, this Court has stated that implied assertions are not hearsay. Jones (On Rehearing After Remand), 228 Mich App at 225-226. Thus, the trial court erred in excluding this evidence.2
However, although the trial court erred, in light of the overwhelming evidence against defendant Theriot, the error was harmless, and thus, he is not entitled to relief. MCR 2.613(A). Defendant Theriot admitted to getting the gun, which he illegally owned, of his own free...
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