People v. McDade

• Decision Date: 18 June 2013
• Docket Number: Docket No. 307597.
• Citation: 836 N.W.2d 266,301 Mich.App. 343
• Parties: PEOPLE v. McDADE.
• Court: Court of Appeal of Michigan — District of US

301 Mich.App. 343

836 N.W.2d 266

PEOPLE

v.McDADE.

Docket No. 307597.

Court of Appeals of Michigan.

Submitted June 4, 2013, at Grand Rapids.

Decided June 18, 2013, at 9:00 a.m.

Recognized as Unconstitutional

M.C.L.A. § 791.234(6)(a)

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Cheri L. Bruinsma, Assistant Prosecuting Attorney, for the people.

Donald L. Sappanos, for defendant.

Before: MURPHY, C.J., and FITZGERALD and HOEKSTRA, JJ.

MURPHY, C.J.

Defendant appeals as of right his convictions by a jury of first-degree murder, MCL 750.316, three counts of possession of a firearm during the commission of a felony, MCL 750.227b, two counts of assault with intent to commit murder, MCL 750.83, and carrying a concealed weapon, MCL 750. 227. Defendant was sentenced to mandatory life imprisonment absent the possibility of parole for the first-degree murder conviction, life imprisonment for each of the two assault convictions, 2 1/2 to 5 years' imprisonment for the concealed weapon conviction, and 2–year prison terms for the felony-firearm convictions. We affirm defendant's convictions and all his sentences, except for the mandatory life sentence for the murder conviction. Pursuant to Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and People v. Carp, 298 Mich.App. 472, 828 N.W.2d 685 (2012), and given that defendant was 17 years old at the time of the murder, we vacate the murder sentence and remand for resentencing consistent with the directives in Miller and Carp.

On July 14, 2010, James Warren went to a store in Kalamazoo where he spoke to defendant about acquiring some marijuana for resale in a profit-sharing arrangement. There was no drug transaction at the store, and instead defendant and Warren proceeded by bicycle to a home on Washington Avenue. Warren knew Lenell Ewell, who was often at the house. Ewell was friends with Carlton Freeman, and Freeman resided in one of the units in the subdivided house. Freeman, Ewell, and a mutual friend, Erick Jenkins, were at the home when defendant and Warren arrived at about 5:30 p.m. According to Warren, defendant gave him some marijuana to sell and a small amount of cash to make change when Warren sold the marijuana, and Warren rode away on defendant's bicycle, while defendant remained at the house to await Warren's return.¹ Ewell had indicated that defendant could remain at the location while awaiting Warren's return, which ultimately never did transpire.

Freeman, Jenkins, Ewell, and defendant went into the backyard of the Washington Avenue home after Warren left the premises. Ewell and Jenkins were drinking beer, Freeman was not. Time passed absent Warren's return, and defendant eventually spoke to someone on his cellular telephone. Defendant appeared to become frustrated and started making accusatory statements concerning the other three men. They, however, expressed befuddlement and denied involvement in a scam against defendant. Freeman testified that defendant rejected their denials and remained angry at them. Defendant subsequently walked around to the front of the house where another individual, Marlen Stafford, was waiting. Freeman, Jenkins, and Ewell followed defendant around the house and stepped onto the home's porch, while defendant continued walking to the sidewalk where Stafford was standing. At some point, defendant told the group on the porch that “[h]e wasn't leaving till he got his stuff back.” According to Freeman, defendant then took out a revolver and stated that “[s]omebody ... was gonna die[.]” Freeman and Jenkins ran into the backyard and defendant began shooting. Freeman escaped, Jenkins did not. Ewell remained on the porch. He testified that he did not even realize that he had been shot until he heard someone say, “You got shot—.”

Officer Brian Cake was the first officer to respond to the shooting at the home. Cake asked Ewell if the bullet came from a vehicle, and Ewell responded affirmatively. Jenkins was found in the backyard with a single bullet wound to the back. He was pronounced dead shortly thereafter. Officer Joshua Breese spoke with Ewell for about 10 minutes at the hospital on the day of the shooting, and the officer thereafter indicated that Ewell gave him multiple stories about what had happened that day. Detective Harold West also went to see Ewell at the hospital, and the detective described him as being very irritable, still intoxicated, oscillating in emotional intensity, and repeatedly asserting that he did not want treatment and wished to leave. Later in the evening, West showed Ewell a photographic lineup, which included an individual named James Turner, but not defendant. Ewell did not take much time studying the photographs, pointed to Turner's image, and said that he was the shooter.

At some point in the evening of July 14, 2010, Officer Fidel Mireles transported Freeman to the police station to be interviewed. Mireles indicated that Freeman told him that “James” was one of the shooters. Detective Kristin Cole interviewed Freeman later that night and understood Freeman to have meant that “James,” meaning James Warren, was merely involved with the shooting. Detective West again met and spoke with Ewell on July 16, 2010. As West entered the room, Ewell, without prompting, blurted out that he, in the prior interview, had mistakenly identified the wrong person. West showed Ewell a different photographic lineup, which included defendant. West observed Ewell “go over all the photographs, looking at each one ... very, very carefully.” Ewell then placed his hand on defendant's photograph and stated, “I got a funny feeling. I don't know why I'm getting this strange feeling,” followed by, “[t]his him. This the guy right there.” Afterward, West told Ewell, “good job,” but the detective claimed that his remark was merely an interpersonal nicety, not an affirmation of Ewell's identification of defendant. At trial, Ewell again identified defendant as the shooter and claimed that his initial misidentification of Turner was due to fear of reprisal.

On July 19, 2010, Detective Michael Hecht showed Freeman five photographic lineups, which separately included photographs of defendant, Warren, Turner, and Stafford. Freeman identified Warren as the person who originally accompanied defendant to the house, and he identified Stafford as the person who later came to the house and stood next to defendant. Freeman eventually selected defendant as the shooter. Before identifying defendant, Freeman had asked to see additional photographs. With respect to defendant's photograph, Freeman stated, “I want to say it's him” or “[i]t got to be him,” among other things. He did not select James Turner. Hecht interviewed Stafford on July 20, 2010, which was Stafford's second interview, and Stafford eventually admitted that he had observed the shooting, identifying defendant as the shooter.

On July 24, 2010, Warren was interviewed by Detective Robert East and was presented a photographic lineup. Warren was not asked to first provide a description of the shooter before reviewing the lineup. Warren told the interviewing detective that he wished to look at a second page of photographs, but there were no other pages available. Detective East admitted that Warren repeated the word “tall” while looking at the lineup, and East acknowledged that because of the composition of the different photographs, defendant's head appeared closer to the top of the picture frame than did the heads of the other persons shown, despite the fact that defendant was the shortest person in the lineup grouping. At trial, Warren again identified defendant.

Defendant agreed to be interviewed by Detective Hecht on July 27, 2010. He denied involvement with the shooting and claimed to have been at a family barbecue or with a woman. Defendant also provided the police several cellular telephone numbers that he claimed to have used recently. The police, with the assistance of FBI agent Mark Waldvogel, determined that the associated cellular telephone records indicated that one or more of the cellular telephone numbers provided by defendant reflected contacts or communications near Washington Avenue around the time of the shooting.

On October 1, 2010, Detective William Moorian organized a live, corporeal lineup featuring defendant. Warren attended the lineup while drunk and “recognized” a person in the lineup who was not defendant. Ewell and Freeman each viewed the lineup and identified defendant as the shooter.

On October 4, 2010, the day before the preliminary examination was conducted, Ewell contacted Detective Hecht and showed Hecht his cellular telephone, which displayed call logs, including at least one entry from a telephone number belonging to defendant's mother. Ewell had also received a call from a different phone number, with the caller warning Ewell that “[y]ou gonna get yours,” and “[y]ou better watch your back.”

As of August 8, 2010, an individual named Shondell Kellumn, along with defendant and Stafford, were all being held in the same jail. Defendant and Kellumn were held in the same cellblock, while Stafford was held in a different cellblock in the same wing of the jail. Stafford asked Deputy Bryan McLain to pass a handwritten note to Kellumn on August 8, which McLain photographed. This first note was addressed to “Dalloc” ² and stated, “They just came in[,] said if I come to your court day [and] say that you did it they will give me $60,000 to say you did it....” Kellumn later asked McLain to pass a note to Stafford, which McLain also copied. This note read, in part:

Marlen[:] even if you said something already[,] just don't say nothing when you go to Dallas court date. If you real like you say.... when you get on the stan[d,] just say you don't [know] this man and tell them you was just scared because Duck [Turner] said he was [going to] kill you or something.... Just play...