People v. McNair

• Decision Date: 29 December 2022
• Docket Number: 357974
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID MCNAIR, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DAVID MCNAIR, Defendant-Appellant.

No. 357974

Court of Appeals of Michigan

December 29, 2022

UNPUBLISHED

Wayne Circuit Court LC No. 18-002868-01-FC

Before: Kathleen Jansen, P.J., and Deborah A. Servitto and Michael F. Gadola, JJ.

PER CURIAM.

Defendant appeals as of right^[1] his jury trial convictions of two counts of first-degree felony murder, MCL 750.316(1)(b), second-degree murder, MCL 750.317, armed robbery, MCL 750.529, carrying a concealed weapon, MCL 750.227, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.^[2] The trial court sentenced defendant to 40 to 60 years' imprisonment for each of his first-degree felony-murder convictions, 30 to 60 years' imprisonment for his second-degree murder conviction, 20 to 40 years' imprisonment for his armed robbery conviction, one to five years' imprisonment for his carrying a concealed weapon conviction, and a consecutive two years' imprisonment for his felony-firearm conviction. We affirm defendant's convictions of first-degree felony murder, armed robbery, and felony-firearm, vacate defendant's conviction and sentence for second-degree murder, and remand to the trial court to modify defendant's judgment of sentence and resentence defendant on his first-degree felonymurder convictions.

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I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of the fatal shootings of Deonta Blinco and Javionne Trotter, which occurred outside a home at 1659 Buena Vista Street in Detroit between 2:30 and 3:00 p.m. on February 16, 2018. The prosecution presented the testimony of Larry Jackson, who drove Blinco and Trotter to the crime scene, as well as the testimony of several witnesses who lived on or near the street to establish the facts concerning the homicides. The testimony of the witnesses was largely consistent. On the day of the shooting, Jackson drove Blinco and Trotter in his black Jeep Compass to meet defendant and codefendant Christopher Pritchett^[3] on Buena Vista Street. Trotter was Jackson's cousin, and Blinco was a family friend whom Jackson considered to be like a cousin. Jackson testified that the purpose of the meeting was for Blinco and Trotter to trade firearms with defendant and Pritchett. According to Jackson, Blinco and Trotter connected with defendant and Pritchett over social media and reached an agreement for Pritchett and Trotter to trade a Smith &Wesson nine-millimeter pistol with an extended magazine possessed by Blinco and Trotter for two nine-millimeter pistols possessed by defendant and Pritchett. Jackson was not sure which individuals, exactly, had agreed to what part of the exchange.

As Jackson drove down Buena Vista Street with Blinco and Trotter in his Jeep, either defendant or Pritchett flagged down the vehicle. Jackson parked on the side of the street in front of the house where the murders occurred. Blinco and Trotter got out of the Jeep, shook hands with defendant and Pritchett, and had a quiet one- to two-minute conversation with defendant and Pritchett. Pritchett and Trotter walked to the back of the house, and defendant and Blinco stood in the front yard. Moments later, a gunshot rang out from behind the house, immediately followed by four more in quick succession. Jackson testified that, just after the shootings behind the house, defendant pulled out a .38 revolver from his coat and shot Blinco multiple times. Blinco ran and fell down into the street. Defendant ran to the back of the house, and Jackson drove away. Trotter was lying on the ground behind the house. Defendant hopped the fence behind the house and waited for Pritchett. Pritchett struggled to get over the fence, and one witness testified that Pritchett had what appeared to be a gun in his pocket, which caused his pants to sag and start to fall down. After Pritchett got over the fence, defendant and Pritchett ran through yards and across the street running parallel to Buena Vista Street. Blinco and Trotter both died of multiple gunshot wounds. Jackson, with the help of others, tracked down the identities of defendant and Pritchett using social media, shared the information with the police, and later identified defendant and Pritchett from photographic arrays.

Defendant was charged with first-degree premeditated murder, two counts of first-degree felony murder, armed robbery, carrying a concealed weapon, and felony-firearm. At trial, defendant testified that he shot Blinco in self-defense. Defendant admitted that he agreed to attend the firearms transaction with Pritchett to provide protection and that he brought the .38 caliber pistol for that purpose, but he denied that he ever went to the transaction with any intention to shoot anyone or commit a robbery. Defendant testified that, after the gunshots rang out from behind the house, Blinco pulled out a pistol and began firing it at defendant, grazing his left

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shoulder and piercing his jacket in another spot. Defendant testified that he then fired two shots at Blinco from his .38 revolver, ran behind the house, tripped over the legs of Trotter, who was lying on the ground, hopped the fence, and fled.

II. SUFFICIENCY OF THE EVIDENCE

A. FIRST-DEGREE FELONY MURDER AND SECOND-DEGREE MURDER

Defendant argues that there was insufficient evidence to support his murder convictions and felony-firearm conviction. We disagree that there was insufficient evidence to support defendant's convictions of two counts of first-degree felony murder and one count of felonyfirearm. However, defendant was improperly convicted of second-degree murder because he was also convicted of first-degree felony murder for the homicide of Blinco.

This Court reviews de novo a challenge to the sufficiency of the evidence. People v Martin, 271 Mich.App. 280, 340; 721 N.W.2d 815 (2006), aff'd 482 Mich. 851 (2008). "When a defendant challenges the sufficiency of the evidence in a criminal case, this Court considers whether the evidence, viewed in a light most favorable to the prosecution, would warrant a reasonable juror to find guilt beyond a reasonable doubt." People v Werner, 254 Mich.App. 528, 530; 659 N.W.2d 688 (2002). "In reviewing a sufficiency argument, this Court must not interfere with the jury's role of determining the weight of the evidence or the credibility of witnesses." People v Stiller, 242 Mich.App. 38, 42; 617 N.W.2d 697 (2000).

Defendant challenges both his first-degree felony-murder convictions and his second-degree murder conviction. As explained in People v Carines, 460 Mich. 750, 759; 597 N.W.2d 130 (1999):

The elements of felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in [the statute, including armed robbery]. [Quotation marks and citation omitted.]

The elements of second-degree murder are: "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." Werner, 254 Mich.App. at 531 (quotation marks and citations omitted). Defendant also challenges his felony-firearm conviction on the basis of the sufficiency of the evidence of his murder convictions. "To be guilty of felony-firearm, one must carry or possess [a] firearm, and must do so when committing or attempting to commit a felony." People v Burgenmeyer, 461 Mich. 431, 438; 606 N.W.2d 645 (2000) (emphasis omitted). The elements of a crime can be proven with circumstantial evidence and reasonable inferences drawn from that evidence. People v Fletcher, 260 Mich.App. 531, 560; 679 N.W.2d 127 (2004).

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Defendant argues that the prosecution failed to bring forth sufficient evidence to show he possessed the required malice to support a first-degree felony-murder conviction.^[4] "Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." People v Goecke, 457 Mich. 442, 464; 579 N.W.2d 868 (1998). Malice may be inferred when there is evidence that a defendant "intentionally set in motion a force likely to cause death or great bodily harm." Stiller, 242 Mich.App. at 43 (quotation marks and citation omitted). "Malice may also be inferred from the use of a deadly weapon." Carines, 460 Mich. at 759.

Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence to find that defendant acted with malice and to convict defendant of first-degree felony murder. Defendant agreed to attend a transaction involving the trading of firearms. As will be discussed later, there is sufficient evidence to show that the proposed gun swap was actually a guise for an armed robbery. By his own admission, defendant's intention in attending the transaction was to provide protection for Pritchett, and defendant carried a pistol for that purpose. That deadly weapon was concealed in defendant's pocket. There was testimony that, after the gunfire behind the house began, without saying a word, defendant took out his weapon, fired at and hit Blinco, killing him. There is evidence that defendant set in motion the events that led to Blinco's death, used a deadly weapon, and displayed the intent to cause death or serious bodily injury, showing defendant acted with malice.

Defendant next argues that he did not possess malice because Blinco shot at defendant first and defendant was acting in self-defense. "Once evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a reasonable doubt." People v Fortson, 202 Mich.App. 13,...