People v. Payne

• Docket Number: 358482,358483
• Decision Date: 20 July 2023
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. XAVIER FERNANDO PAYNE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. XAVIER FERNANDO PAYNE, Defendant-Appellant.

Nos. 358482, 358483

Court of Appeals of Michigan

July 20, 2023

UNPUBLISHED

Washtenaw Circuit Court LC Nos. 17-000728-FC, 18-001028-FC

Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.

PER CURIAM

In Docket No. 358482, defendant appeals as of right his jury trial convictions of first-degree felony murder, MCL 750.316(1)(b); conspiracy to commit armed robbery, MCL 750.529; MCL 750.157a; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.^[1] In Docket No. 358483, defendant appeals as of right his jury trial convictions of two counts of solicitation to commit murder, MCL 750.157b(2).^[2] The trial court sentenced defendant, who was a juvenile at the time of his offenses, to 32 to 60 years' imprisonment for felony murder, 32 to 60 years' imprisonment for conspiracy to commit armed robbery, two years' imprisonment for felony-firearm, and life with the possibility of parole for each count of solicitation to commit murder. The sentences for felony murder and conspiracy are concurrent with each other, the felony-firearm sentence is consecutive, and the solicitation sentences are concurrent with each other but consecutive to defendant's other sentences. We affirm defendant's convictions but remand for resentencing of his solicitation convictions under People v Stovall, 510 Mich. 301 987 N.W.2d 85 (2022).

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

According to the evidence at trial, relevant to the convictions at issue in Docket No. 358482, defendant shot and killed 19-year-old Brandon Cross on April 2, 2017. Cross sold marijuana, and defendant texted Cross, arranging to meet him at an apartment complex under the guise of wanting to buy marijuana. In actuality, defendant and his teenaged coconspirators- Calvin Vanderhoff and Jeffrey Thurman-planned to rob Cross. Cross parked his car in a parking space at the complex, and Thurman, who was driving with Vanderhoff in the passenger seat and defendant in the backseat, parked behind Cross's vehicle. Defendant exited the car with a gun and approached Cross's car. Defendant ordered Cross to "give everything up and open the door." When Cross did not comply, defendant fired once, hitting Cross. Cross died from a gunshot wound to the chest. Relevant to the solicitation convictions at issue in Docket No. 358483, the evidence at trial established that in August or September 2018, while in jail awaiting trial for Cross's murder, defendant asked a fellow inmate-Demond Harris-to kill Vanderhoff's parents.

Vanderhoff, Thurman, and Harris all testified against defendant at trial. While in a juvenile-detention center awaiting trial, defendant wrote incriminating graffiti on his cell wall, stating, in part, that he killed someone in broad daylight on April 2, 2017. A photograph of the graffiti was admitted into evidence. At trial, defendant testified in his own defense, asserting that he participated in the events related to Cross's death under duress-specifically, he maintained that he texted Cross to arrange a meeting at Thurman's insistence while Thurman pointed a gun at him. Defendant denied shooting Cross and instead named Thurman as the gunman. Defendant also denied soliciting Harris to murder Vanderhoff's parents. The jury convicted defendant as noted. Defendant appeals as of right.

II. NEWLY DISCOVERED EVIDENCE

On appeal, defendant first contends that he is entitled to a new trial on the basis of newly discovered evidence to support that defendant did not solicit Harris to kill Vanderhoff's parents. We disagree.

"Historically, Michigan courts have been reluctant to grant new trials on the basis of newly discovered evidence. This policy is consistent with requiring parties to use care, diligence, and vigilance in securing and presenting evidence." People v Grissom, 492 Mich. 296, 312; 821 N.W.2d 50 (2012) (quotation marks and citations omitted).

For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. [People v Cress, 468 Mich. 678, 692; 664 N.W.2d 174 (2003) (quotation marks and citations omitted).]

A defendant moving for a new trial bears the burden of satisfying each part of this test. People v Rao, 491 Mich. 271, 279; 815 N.W.2d 105 (2012).

In this case, Harris testified that defendant asked him to kill Vanderhoff's parents. Harris testified that he received several documents from defendant in jail, including information about defendant's court dates and a note in defendant's handwriting about the case, which Harris was supposed to give to a woman named "Kelly" to help defendant establish an alibi. Harris testified that defendant gave him the document with the court dates because defendant wanted Vanderhoff's parents killed before those dates. On one of the documents, Harris handwrote an address for Vanderhoff's parents, which he testified that he received from defendant. In contrast to Harris's testimony, defendant testified that he threw the documents away, and opined that Harris must have found the papers in the trash because that was "the only place that he could have got it."

After trial, defendant moved for a new trial on the basis that another inmate-Karon Hadden-could testify that defendant gave his discovery packet to Hadden and Hadden then allowed Harris access to those documents. Hadden could also testify that he had the cell next to defendant's and he did not overhear any conversations between defendant and Harris about killing Vanderhoff's parents. To support his motion, defendant submitted an affidavit from Hadden recounting his potential testimony. The trial court denied defendant's motion.

The trial court did not abuse its discretion by denying defendant's motion for a new trial.^[3]Considering the Cress test, for purposes of the first prong, Hadden's potential testimony that he gave Harris access to defendant's documents appears to be new evidence. Under the second prong, contrary to the prosecutor's arguments, the evidence is not cumulative. No one testified at trial- and no other evidence was presented to show-that Harris received documents from Hadden.

Nevertheless, even if defendant satisfied the first two prongs, defendant's newly discovered evidence claim fails under the third and fourth prongs of Cress. The third prong requires a defendant to show that he could not, using reasonable diligence, have discovered and produced the evidence at trial. See Cress, 468 Mich. at 692. With regard to this issue, defendant claims that he had no way of knowing that Hadden gave Harris access to his documents. However, Hadden's affidavit makes clear that Hadden received the documents in question from defendant, meaning that defendant knew that Hadden had the documents. Accordingly, the fact that Hadden had the documents is not new evidence. See Rao, 491 Mich. at 281 ("[E]vidence is not newly discovered if the defendant or defense counsel was aware of the evidence at the time of trial.").

Moreover, the question of where Harris obtained documents related to defendant's case has been in dispute since at least the preliminary examination in December 2018. Indeed, at the preliminary examination, defense counsel argued that inmates talk "with each other" and share information, and it was possible that Harris received information from someone other than defendant. Yet, knowing that he gave his discovery packet to Hadden, and knowing the potential importance of the documents at trial, defendant apparently made no effort before trial to ask Hadden whether he shared this information with Harris. "It is the obligation of the parties to undertake all reasonable efforts to marshal all the relevant evidence for that trial." Id. at 280. On the facts of this case, reasonable efforts would have involved the simple task of asking Hadden- or anyone else with whom defendant shared his discovery packet-whether they gave Harris access to this information. Cf. People v Gray, 216 Mich. 509, 513; 185 N.W. 728 (1921) (rejecting newly discovered evidence claim when the new potential witness was someone whom the defendant should have questioned-she was a member of "defendant's own household, and in the nature of things, defendant would, in the exercise of any diligence, have called upon her as a witness at the trial."); People v Safiedine, 152 Mich.App. 208, 215; 394 N.W.2d 22 (1986) (concluding that the defendant was not entitled to a new trial when he had a potential witness's name and yet made no effort to uncover his potential testimony).^[4] Likewise, with reasonable efforts, defendant could have determined that Hadden-or potentially others who lived in defendant's unit at jail-had not heard defendant and Harris discussing plans to murder Vanderhoff's parents. Because reasonable diligence would have led to the discovery and production of Hadden's potential testimony at trial, defendant's newly discovered evidence claim fails under the third prong of Cress, 468 Mich. at 692.

Defendant's newly discovered evidence claim also fails under the fourth prong of Cress because Hadden's testimony would not make "a different result probable on retrial." Id. Considering whether new evidence would make a different result probable on retrial requires consideration of the evidence previously introduced at trial as well as the evidence that would be admitted at a new trial. People v Johnson, 502 Mich. 541, 571; 918...