PEOPLE OF MI V DENSON W GREEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 16, 2000
Plaintiff-Appellee,
v
No. 212126
Wayne Circuit Court
Criminal Division
LC No. 96-008248
DENSON W. GREEN,
Defendant-Appellant.
Before: Markey, P.J., and Gribbs and Griffin, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316; MSA
28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA
28.424(2).1 The trial court sentenced defendant to life imprisonment without parole for the first-degree
murder conviction and a consecutive two-year term for the felony-firearm conviction. Defendant
appeals by right. We affirm.
I
Defendant first argues that insufficient evidence existed to sustain his conviction of first-degree
murder. We disagree. When determining whether sufficient evidence has been presented to sustain a
conviction, we must view the evidence in a light most favorable to the prosecution and determine
whether any rational trier of fact could have found that the essential elements of the crime were proven
beyond a reasonable doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). To
prove first-degree, premeditated murder, the prosecution must establish that the defendant intentionally
killed the victim and that the act of killing was premeditated and deliberate. People v Schollaert, 194
Mich App 158, 170; 486 NW2d 312 (1992). “Premeditation and deliberation require sufficient time to
allow the defendant to take a second look.” Id.
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Defendant was convicted after his third trial. In each of the two previous trials, the jury was unable to
reach a unanimous verdict.
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Defendant focuses his insufficiency of the evidence argument on the credibility of the
prosecution’s two primary witnesses, whose testimony from prior proceedings was read to the jury.
Resolving the credibility of these witnesses was a function for the jury, not of this Court. People v
McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). We observe, however, that defendant’s
confession corroborates much of the challenged testimony.
Viewing the evidence in a light most favorable to the prosecution, as we must, defendant’s
second statement to the police and the testimony of Gordon Vance are sufficient to establish that, at a
minimum, defendant performed acts that aided and assisted in the planned avenging of a gang-related
shooting that resulted in the death of the young victim. Defendant acknowledged driving the two
shooters to the vicinity of the Hawthorne Recreation Center, near where the victim lived. There was at
least one assault rifle in the car, and possibly two, although the evidence is inconsistent on which
perpetrator possessed the weapons. Defendant either planned to “holler at” (i.e., shoot) some men
involved in the wounding of an acquaintance or knew that the other two perpetrators had planned this.
According to his own statement, defendant waited in the car and heard numerous rounds of gunfire.
When the two shooters returned to the car, defendant transported them back to Vance’s house. This
evidence is sufficient to convict defendant of aiding and assisting in a premeditated murder, thus making
him equally responsible for the primary offense even though he was not one of the actual shooters.
MCL 767.39; MSA 28.979; People v Smielewski, 235 Mich App 196, 209 n 4; 596 NW2d 636
(1999). Further, under the doctrine of transferred intent, it does not matter that the deceased, an
eleven-year-old boy who was standing in front of a neighbor’s house with his father, was not the
shooters’ intended victim. People v Plummer, 229 Mich App 293, 304 n 2; 581 NW2d 753 (1998).
Regarding defendant’s argument that strong evidence suggested that the shot that killed the
victim actually came from the area around the recreation center and, therefore, not from his
companions’ guns, the coroner testified that the bullet that killed the young victim was a high velocity
projectile from a high-powered weapon. Also, spent casings from an assault rifle were found near the
parked cars in the street and on the berm. Because no casings from a high powered weapon were
found in the area of the recreation center, the evidence sufficiently enabled the jury to find that the fatal
shot had been fired from an assault rifle in the hands of one of defendant’s two companions.
II
Next, defendant argues that the prosecution failed to establish that it exercised due diligence in
attempting to secure the in-court testimony of Gordon Vance and Terrell Brown, whose testimony from
prior proceedings was read to the jury. We disagree. The trial court’s determination that the
prosecution made a diligent good-faith effort to locate these missing witnesses for trial will not be
disturbed on appeal absent a clear abuse of discretion. People v Bean, 457 Mich 677, 684; 580
NW2d 390 (1998).
The prosecutor established that both witnesses had been personally served with subpoenas, that
officers had spoken with both witnesses, and that arrangements had been made to give both witnesses
rides to the court, but that both were gone when the officers arrived to pick them up for trial. Defendant
argues that, pursuant to this Court’s decision in People v James (After Remand), 192 Mich App 568;
481 NW2d 715 (1992), the efforts shown by the prosecutor to produce the two witnesses were
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insufficient to be considered due diligence. We find that the facts of this case are not as extreme as in
James, and the trial court did not abuse its discretion in allowing the prosecutor to use the former
testimony of these two witnesses.
Defendant also claims that the trial court’s failure to read the entire prior testimony of the
unavailable witnesses was error requiring reversal. However, the record shows that defendant did not
request further testimony to be read and, accordingly, this issue is not preserved for our review.
III
Defendant argues that he was denied his constitutional right to the effective assistance of counsel
because statements made by defense counsel during opening and closing arguments shifted the burden
of proof to defendant, defense counsel failed to object to the lack of due diligence in producing the
unavailable witnesses, and defense counsel failed to object to reading the witnesses’ prior testimony to
the jury. We disagree. To establish a claim of ineffective assistance of counsel, a defendant must
demonstrate that defense counsel’s performance fell below an objective standard of reasonableness
under prevailing norms. People v Leonard, 224 Mich App 569, 592; 569 NW2d 663 (1997).
Defendant also must show that counsel’s representation so prejudiced the defendant as to deprive him
of a fair trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). This means that
there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have
been different. Id. at 314.
Defense counsel closed his opening argument with the following statement, “And I hope that by
the end of the case, at the conclusion, you’ll be able to decide beyond a reasonable doubt that Mr.
Green is not guilty.” In his closing argument, defense counsel stated, “The second key principle is Mr.
Denson Green does not have to prove that he is not guilty. The prosecutor must prove beyond a
reasonable doubt that he is guilty. And what I will show you based on what the evidence presented
today that you’re going to find beyond a reasonable doubt that Mr. Green is not guilty of this charge.”
While defense counsel may have misspoke regarding the burden of proof, the trial court instructed the
jury on the correct burden of proof and specifically admonished the jury that if one of the lawyers gave
contrary interpretations of the law, the jury was to follow what the court said and not what the lawyer
said. Therefore, defendant cannot establish that his counsel’s misstatements deprived him of a fair trial.
The trial record also belies defendant’s contention that his trial counsel waived the in-court
appearance and testimony of Gordon Vance and Terrell Brown. Defense counsel demanded the
production at trial of these two witnesses. After hearing testimony regarding the efforts made to secure
their presence, counsel strongly objected to the reading of their prior testimony, arguing that the
prosecutor had not shown due diligence in securing the witnesses for trial. When the trial court found
that the prosecutor’s efforts were sufficient but offered to issue bench warrants for the witnesses’ arrests
in one last attempt to secure their presence, defendant personally waived this final attempt and asked to
proceed with the transcripts. Therefore, defendant’s argument that counsel’s performance was
constitutionally ineffective is without merit.
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IV
Next, defendant argues that the prosecutor’s continuous reference to gang activity denied him a
fair trial. We disagree. Defendant cites People v Hubbard, 209 Mich App 234; 530 NW2d 130
(1995), as precedent for finding that interjecting information about gangs and gang activity is more
prejudicial than probative and grounds for reversal. In Hubbard, supra at 237-238, the trial court
allowed a police detective to testify over defense objection about the common characteristics of drug
dealers, and the prosecutor referred to this profile evidence as circumstantial evidence of the
defendant’s guilt in presenting his theory of the case to the jury.
The instant case presents far different facts. Although defendant maintains that there was no
evidence of gang activity, defendant himself introduced in his statements to the police the idea that those
involved in the shooting were gang members and that the shooting was committed in retaliation for an
earlier gang-related shooting. Therefore, the trial court did not abuse its discretion in denying
defendant’s motion to exclude gang references. The evidence was necessary to understand the motive
for what otherwise appeared to be a senseless shooting.
V
Defendant also maintains that the coroner’s violation of the trial court’s sequestration order was
grounds for a mistrial. We disagree. The trial court has the discretion to order sequestration of
witnesses and, in instances of violation of a sequestration order, discretion to exclude or allow the
testimony of the offending witness. People v Nixten, 160 Mich App 203, 209-210; 408 NW2d 77
(1987).
During defendant’s first two trials, Dr. Sawait Kanluen testified that he did not personally
perform the autopsy and could not tell what caliber weapon killed the victim. At defendant’s third trial,
Dr. Laning Davidson testified that he performed the autopsy and could classify the type of bullet that
killed the victim as “a high velocity type of bullet coming from a high powered weapon” because it
exited from the body, which a bullet from a low velocity weapon would not, and because of the massive
internal injuries. Dr. Davidson also testified that he had served in Vietnam, and the injuries to the victim
were similar to the types of injuries caused by assault rifles that he had observed in soldiers. Under
cross-examination, Davidson acknowledged that he was present in the courtroom and heard testimony
that an AK-47 was involved in the killing.
Defendant argues that Dr. Davidson’s violation of the trial court’s order to sequester witnesses
constituted grounds for a mistrial; however, defendant did not move to strike the medical testimony or
request a mistrial in the trial court. Further, there is no evidence that the trial court was aware that Dr.
Davidson was in the courtroom before he testified. The trial court does not have a sua sponte duty to
question witnesses who may have violated a sequestration order. People v King, 215 Mich App 301,
309; 544 NW2d 765 (1996). Finally, defendant has not demonstrated that he was prejudiced by the
coroner’s violation of the sequestration order. See People v Solak, 146 Mich App 659, 669; 382
NW2d 495 (1985). Dr. Davidson explained that his knowledge about the victim’s wounds and their
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cause was attributable to his personal performance of the autopsy and his prior service in the Vietnam
War, rather than to testimony he heard in the courtroom.
VI
Finally, defendant argues that the trial court erred in admitting into evidence his second custodial
statement because it was not voluntary and was procured by undue influence. We disagree. When
reviewing a trial court’s determination that a defendant’s confession was voluntary, this Court must
examine the entire record and make an independent determination of the issue as a question of law.
People v Howard, 226 Mich App 528, 543; 575 NW2d 16 (1997). However, deference is given to
the trial court's assessment of the weight of the evidence and credibility of the witnesses, and the trial
court's findings will not be reversed unless they are clearly erroneous. Id.
Defendant moved to suppress his confession before his first trial, and the trial court held a
hearing in which testimony was received from Sergeant Butler, who took both of defendant’s
statements, and from defendant. The court found that defendant’s statements were voluntarily given.
This finding is not clearly erroneous. Defendant was given the opportunity to have other police
witnesses testify, but asked only for Sergeant Butler, the officer who took defendant’s two statements.
Defendant’s testimony contradicted that of Sergeant Butler on important points, and the trial court found
the officer’s testimony to be more credible. Defendant’s claim that he believed that he would be killed
by the police if he did not give a second statement incriminating his two companions is not credible,
particularly considering that defendant agreed to ride along with the officers after he had allegedly been
threatened. Further, we do not find credible defendant’s argument that he believed that the officers
would immediately allow him to leave the station if he confessed to knowingly driving two shooters to
the scene where an eleven-year-old child was fatally shot and transporting them to safety afterwards.
We find no clear error in the trial court’s determination that defendant’s second statement was
voluntarily given. Id.
We affirm.
/s/ Jane E. Markey
/s/ Roman S. Gribbs
/s/ Richard Allen Griffin
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