People v. Roper

• Decision Date: 22 October 2009
• Docket Number: Docket No. 285137.
• Citation: 777 N.W.2d 483,286 Mich. App. 77
• Parties: PEOPLE v. ROPER.
• Court: Court of Appeal of Michigan — District of US

777 N.W.2d 483

286 Mich. App. 77

PEOPLE v. ROPER.

Docket No. 285137.

Court of Appeals of Michigan.

Submitted October 6, 2009, at Lansing.

Decided October 22, 2009, at 9:10 a.m.

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Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.

Peter Ellenson, Royal Oak, for defendant.

Before: TALBOT, P.J., and WILDER and MICHAEL J. KELLY, JJ.

PER CURIAM.

Defendant appeals as of right his conviction by a jury of second-degree murder. MCL 750.317. The trial court sentenced defendant to serve 250 months to 720 months in prison for the conviction. On appeal, defendant challenges the sufficiency and the weight of the prosecutor's evidence and challenges the trial court's decision to permit the prosecutor to introduce evidence of specific acts of prior conduct by defendant for the purpose of showing defendant's aggressive character. We conclude that the jury's verdict was fully supported by the evidence. We also conclude that the prosecutor could properly cross-examine defendant about specific instances of conduct tending to show his aggressive character after defendant presented testimony tending to permit an inference that he could not have committed the charged crime because he had a character for peacefulness. Furthermore, once defendant unequivocally denied on cross-examination that he had committed the acts giving rise to an inference of aggressiveness, we conclude that the prosecutor could properly call rebuttal witnesses to testify about the specific instances that defendant denied. Because there were no errors warranting relief, we affirm.

I. BASIC FACTS

Defendant's conviction arises from the stabbing death of his roommate, Anthony Jones, in August 2007. At that time, defendant lived in a trailer with three other young men: Larry Farmer, Theodore Morrow, and Jones. The roommates were all friends and socialized together.

On the night at issue, Jones, Morrow, and defendant went to a nightclub that they often went to on Thursday nights. Farmer did not attend because he was in California. Morrow testified that when they arrived, they ordered drinks. However, when the bartender returned, defendant was gone. Morrow said that he and Jones ended up paying for defendant's drink. When defendant returned, Morrow said that he and Jones confronted defendant by telling him that they did not "appreciate him ... not footing his part of the bill." Morrow said that defendant agreed to pay for the next round and then had his girlfriend, Chelsea Morris, actually pay for the next round.

Morrow stated that everything seemed normal on the drive home from the bar. When they got back to the trailer, Morrow took a beer from the refrigerator and sat down at the computer table in the living room area to play video games. Morrow testified that he called his girlfriend and asked her to come over. At some point after they got back, Jones again confronted defendant about the "situation" with the drinks. Morrow said that Jones also began to bring up other roommate issues such as food and drinks missing from the refrigerator. During the argument, Morrow said that he would state his agreement with Jones, but otherwise continued to play the video game.

Defendant testified that, when they got back to the trailer, Jones began to yell at him about the round of drinks back at the bar: "`It wasn't cool you know. You know we don't have really money for that blah, blah, blah, you know.'" Defendant said that Morrow chimed in as well and would every so often agree and say "`dude that wasn't cool.'" Defendant stated that Jones eventually got in his face and Morrow told him to "`chill.'"

Morrow agreed that Jones got into defendant's face and at one point pushed defendant, who stumbled back into the computer table and spilled Morrow's beer. Morrow said he got some tissue, cleaned up the spill, and then returned to his video game. Morrow stated that defendant seemed surprised by the shove, but the argument continued with just words. Morrow testified that he did not take the argument too seriously. At some point, defendant and Jones moved into the adjacent kitchen area.

Defendant testified that Jones chest-bumped him and then pushed him into the computer table. At this point, defendant said he began to back into the kitchen and Jones approached him and punched him. Defendant said that he saw Jones with his shirt off and approaching again when defendant grabbed a knife from the kitchen counter. Defendant testified that Jones stopped at this point and said, "`you going to grab a knife mother fucker, you pussy' or some shit like that." Defendant said that Jones then lunged his shoulders forward. Defendant testified that, at that point, he stepped up and swung the knife at Jones.

Morrow testified that he was playing his video game as defendant and Jones moved into the kitchen. He then heard what sounded like a noise from body-on-body contact or body-on-inanimate-object contact and heard Jones say, "`what the fuck you're going to grab a knife.'" At that, Morrow turned toward the kitchen and saw Jones run toward the back of the trailer. Morrow said that there was blood everywhere and defendant was holding a knife.

Morrow immediately got up, pulled defendant's arms behind his back, and told him to drop the knife. Morrow said that defendant was very angry, but only lightly resisted his efforts. Morrow testified that, while he was telling defendant to drop the knife, defendant was saying, "fuck that, fuck him." Morrow said defendant eventually dropped the knife, but not before Jones ran outside. Morrow stated that he let defendant go and then proceeded to call 911.

A 911 tape revealed that Jones also called 911 and told the operator that his roommate had stabbed him and that he was bleeding to death. At some point Jones fell to the ground and stopped speaking with the 911 operator.

Defendant testified that he was concerned about the severity of Jones's injury and went outside to see what he was doing. When defendant got outside he went up to Jones and began to kick him in the ribs. Defendant said he kicked him because he was still angry and told Jones "you shouldn't have fucked with me." Morrow testified that when he came out of the trailer he saw defendant kicking Jones and stating: "`Who's tough now, you're not such a tough guy now are you.'" Morrow stated that he yelled at defendant to stop and that defendant eventually went to his car and drove quickly from the area. Defendant's angry tones were apparently audible on the recording of Jones's phone call to 911, which was still being recorded even after Jones stopped speaking.

Defendant's ex-girlfriend, Sarah Makela, testified that defendant called her about that time. She said that defendant was hysterical and asked for the phone number of her lawyer. She said that he told her that he "snapped," stabbed Jones, kicked him, stomped on his head, and left him on the ground "gurgling." She said that defendant explained that Jones kept pushing him, which she took to mean that Jones was in defendant's face about something.

Morrow and his girlfriend, who had just arrived, tried to assist Jones. Morrow's girlfriend testified that every time Morrow tried to perform CPR, Jones would cough up blood.

A medical examiner testified that Jones had suffered a single knife wound to his neck. The wound was on Jones's left side and proceeded downward more than three inches into Jones's neck. The knife severed Jones's external carotid artery and his throat. Jones bled extensively into his stomach, aspirated some blood, and died from acute loss of blood.

Defendant was arrested and eventually tried on a single charge of open murder. Defendant did not contest that he caused Jones's death by stabbing him. However, he asserted that it was justifiable as self-defense or, in the alternative, that he did so under circumstances that amounted to manslaughter rather than first- or second-degree murder. The jury rejected these defenses and returned a verdict of guilty on the charge of second-degree murder.

II. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

A. STANDARD OF REVIEW

We shall first address defendant's challenges to the sufficiency and the weight of the evidence against him. In challenges to the sufficiency of the evidence, this Court reviews the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v. Martin, 271 Mich.App. 280, 340, 721 N.W.2d 815 (2006).

In contrast to a challenge to the sufficiency of the evidence, a motion for a new trial based on a belief that the verdict was against the great weight of the evidence does not implicate issues of constitutional magnitude and, for that reason, the decision to grant a new trial is committed to the discretion of the trial court. People v. Lemmon, 456 Mich. 625, 634 n. 8, 576 N.W.2d 129 (1998). Accordingly, this Court reviews a trial court's decision on a motion regarding the great weight of the evidence for an abuse of discretion. People v. Lueth, 253 Mich.App. 670, 680, 660 N.W.2d 322 (2002). A trial court abuses its discretion when it selects an outcome that is not within the range of reasonable and principled outcomes. People v. Young, 276 Mich.App. 446, 448, 740 N.W.2d 347 (2007).

B. MALICE

Defendant first contends that there was insufficient proof that he had the requisite malice to convict him of second-degree murder. In order to convict a defendant of second-degree murder, the prosecution must prove: "(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse." People v. Mayhew, 236 Mich.App. 112, 125, 600 N.W.2d 370 (1999). "Malice is defined...