People v. Miller
| Decision Date | 19 May 1995 |
| Docket Number | Docket No. 136488 |
| Citation | 211 Mich.App. 30,535 N.W.2d 518 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Dale MILLER, Defendant-Appellant. (After Remand) |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James J. Gregart, Pros. Atty., and Michael H. Dzialowski, Asst. Pros. Atty., for the People.
State Appellate Defender by F. Martin Tieber, for defendant on appeal.
Before FITZGERALD, P.J., and MARILYN J. KELLY and BASHARA, Jr., * JJ.
AFTER REMAND
Defendant was convicted of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and was sentenced to life imprisonment and two years' imprisonment for the respective convictions. He appeals as of right. We affirm.
Defendant was convicted of shooting and killing Kevin AcMoody, who had been dating the defendant's former girl friend.
Gracia Davis testified that she met the defendant in 1984, when she enrolled in a photography class that utilized a laboratory in which the defendant was working. Davis was seventeen years old; defendant was thirty-one. Davis testified that she began dating defendant in April 1984, and broke off the relationship approximately a year later. Davis indicated that she lived with defendant off and on between 1984 and 1986 or 1987 when she met a man she later married, Mohammad Hamouda.
Davis testified that before her marriage, defendant became obsessive if she dated other men. Davis testified that while she was dating her future husband, defendant would harass them by calling and following them. She described an altercation that occurred before her marriage in which the defendant approached her and Hamouda and began attacking, choking, and kicking Hamouda, prompting Hamouda to stab defendant with a kitchen knife. Davis testified that defendant said that he would not prosecute Hamouda if the couple would separate. 1
In February 1988, defendant moved to Taiwan to "get away from" Davis. While defendant was in Taiwan, he sent her six or seven videotapes of himself talking to her on camera. Davis testified that she went to Taiwan to visit defendant. At that time, defendant told Davis that he had let himself into the apartment she shared with Hamouda while they were out and would try to think of ways to hurt Davis, such as harming her cat. Davis concluded that defendant was obsessed with her rather than in love with her. Nonetheless, when defendant returned from Taiwan, he lived with her for about one month.
Davis began dating Kevin AcMoody in December 1989. Even before she began dating AcMoody, she saw defendant standing in the parking lot of her apartment complex five or six times, staring at her window. Davis testified that defendant became upset when he learned that AcMoody was spending nights at her apartment; in February 1990, in Davis' presence, defendant pulled out some of his own hair, hit himself in the face, and cried as he questioned why Davis had chosen AcMoody over him.
Defendant called Davis numerous times between January and March 1990, leaving messages asking her to come back to him. Davis testified that on one occasion defendant knew that she was going skiing up north with the victim, and defendant knew exactly where she went and what time she arrived back in town.
Davis testified that AcMoody had spent the night at her apartment the night before he was shot and that he had left to return to his apartment at approximately 6:00 a.m. As soon as Davis heard about a shooting on the street where the victim lived, she immediately thought of defendant and AcMoody. Davis testified that she believed defendant was capable of killing and that he killed the victim because defendant was capable of killing and that he killed the victim because defendant knew the relationship with AcMoody had become serious.
A detective testified that his postarrest search of defendant's dresser turned up an envelope with two license plate numbers--one belonging to the victim and one belonging to a resident of Davis' apartment complex who owned a vehicle similar to the victim's.
A letter sent to defendant by Davis was read into evidence, and the defendant's videotaped response was shown. In that tape, recorded about ten months before the murder, the defendant told Davis that she should not see other men "because I do have the ability and the capability and the mind where I will kill somebody." Defendant's objections to the admission of the tape will be addressed in Issue I, infra.
A man testified that he saw defendant at a gym where they both worked out. Approximately one week before the murder, defendant asked him if he knew where he could get a gun that could not be traced and that would have to be thrown away.
A male employee at the gym testified that about a week before the killing defendant came to the gym and asked a female employee if she knew a good criminal attorney because he was "going to go all the way on the girlfriend thing." The female employee denied the conversation took place.
Defendant had told one woman that he wished AcMoody were dead so that Davis would come back to him and he would not feel bad if something bad happened to AcMoody. She testified that defendant had told her approximately two weeks before the murder, which happened on a Wednesday, that something bad was going to happen by Wednesday. She also testified that defendant offered to beat up her ex-boyfriend for her because he did not like foreigners.
Defendant's neighbor testified that on the day of the murder, she heard a car leave defendant's driveway at 5:25 a.m. (the murder occurred at about 6:10 a.m.). She testified that when she later heard defendant drive his car around the block, it sounded the same as the car she heard the morning of the murder. Her identification of the sound of the car is addressed in Issue III, infra.
A woman who lived near the victim's apartment testified that on the morning of the murder she heard what sounded like a car backfiring at 6:05 or 6:10 a.m. Three to five minutes later, she saw a car with what looked like a male driver run a stop sign at a high rate of speed. When she returned home that day, she recognized a car pictured on a police flyer as being the one she saw run the stop sign. She notified the police, but indicated that the car she had seen had a rack on the back. The police took her to look at defendant's car several days later (it was parked in defendant's parents' driveway); she indicated that it appeared to be identical to the car she had seen. That identification is addressed in Issue II, infra.
Defendant's neighbor testified that on the day of the murder he asked one of the police officers involved in the investigation if the victim had been killed with a .22 caliber pistol because he knew that defendant had such a gun. Defendant had told the neighbor that he wanted it for protection and also that he would not feel bad if he had to get rid of it after using it.
Cynthia McKnight, defendant's roommate for approximately six months and a lifelong friend, testified that defendant was not at home when she got up at 8:30 a.m. on the day of the murder. A detective testified that McKnight seemed nervous when interviewed the morning of the murder in her apartment. Defendant's objection to this opinion evidence is addressed in Issue IV, infra.
A detective testified that he spoke with Gracia Davis on the morning of the murder and she told him of her concerns that the defendant was involved. This evidence is also addressed in Issue IV, infra.
A secretary at a school where defendant served as a substitute teacher testified that the defendant arrived at work in a quiet and unhappy mood, contrary to his normal talkative, "happy and bubbly" personality.
The court admitted into evidence six teacher evaluations regarding defendant that were prepared between December 1989 and March 1990. The prosecutor offered them to show a rapid deterioration in defendant's personal life in the four months before the crime. The trial judge stated that he knew some of the teachers who prepared the evaluations; defendant's objection regarding that personal knowledge is addressed in Issue V, infra.
The officer in charge of the investigation testified that the defendant admitted that he was obsessed with Davis and that she was his reason for living, but defendant denied the killing and denied knowing where AcMoody lived. Defendant further told the officer that he had put Davis behind him and had met a woman at a dance club whom he described as thirty-two years old, blonde, and blue-eyed. When contacted by the police, the woman was actually a twenty-year-old African American with black hair and brown eyes.
Other isolated facts specific to the issues will be raised hereafter.
Defendant first argues that the court erred in admitting into evidence the videotape made by the defendant about ten months before the killing. In that tape, the defendant told Davis that she should not see other men "because I do have the ability and the capability and the mind where I will kill somebody." Defendant argued that his statements were only boasts and an accession to Davis' request that he talk rough to her. The prosecutor offered the tape to show defendant's intent and that he acted in conformity with the threats made on tape. The defendant argued that the tape was too remote in time to show his intent on the day the victim was shot and that the victim was unknown to the defendant...
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