PEOPLE OF MI V HENRY BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 31, 2001
Plaintiff-Appellee,
v
No. 219354
Wayne Circuit Court
LC No. 98-008613
HENRY BROWN,
Defendant-Appellant.
Before: McDonald, P.J., and Murphy and Meter, JJ.
PER CURIAM.
Defendant appeals by right from his conviction by a jury of voluntary manslaughter, MCL
750.321. The jury concluded that defendant killed the manager of the Saxony Motel in Detroit
by throwing him from a second-floor balcony. The trial court sentenced defendant to seven to
fifteen years’ imprisonment. We affirm.
I. Admission of Evidence
Defendant first argues that the trial court erred in admitting various statements by
prosecution witnesses. Generally, we review a trial court’s decision to admit evidence for an
abuse of discretion. People v Williams, 240 Mich App 316, 320; 614 NW2d 647 (2000).
However, if a defendant did not object below to the admission of the evidence, we will not
reverse in the absence of a plain error that affected the outcome of the case. People v Coy, 243
Mich App 283, 287, 303-304; 620 NW2d 888 (2000).
Defendant contends that the trial erred in admitting the testimony of Johnnie May
Dewberry, who stated that she heard defendant say that he threw the victim from the balcony,
because it constituted inadmissible hearsay. Defendant did not object to Dewberry’s testimony
below, and we therefore review its admission for plain error. Id. We find no plain error, because
the statement about which Dewberry testified was admissible as an admission of a partyopponent under MRE 801(d)(2)(A). Defendant also contends that the trial court erred in
admitting Dewberry’s testimony because it was not credible and because she had an incentive to
lie. Again, we find no plain error; Dewberry’s statements were sufficiency believable such that
the jury could choose to accept them. Defendant’s argument goes merely to the weight, not to
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the admissibility, of the testimony. See, e.g., People v Daniels, 192 Mich App 658, 669; 482
NW2d 176 (1992), and People v McRaft, 102 Mich App 204, 213; 301 NW2d 852 (1980).
Defendant contends that the trial court erred in admitting the testimony of Donald
Edwards, who also stated that he heard defendant say that he threw the victim from the balcony,
because the testimony was inherently incredible and because Edwards had an incentive to lie.
However, defendant did not object to Edwards’ testimony on these grounds below and therefore
failed to preserve this issue for appeal. See People v Considine, 196 Mich App 160, 162; 492
NW2d 465 (1992). Accordingly, we review the admission of Edwards’ testimony for plain error.
Coy, supra at 287. We find no plain error. Indeed, Edwards’ testimony was sufficiently credible
such that the jury could choose to accept it; again, defendant’s argument goes merely to the
weight, not to the admissibility, of the testimony.1 See, e.g., Daniels, supra at 669, and McRaft,
supra at 213.
Finally, defendant contends that the trial court erred in admitting the testimony of Evilyn
Willis, who recounted an out-of-court statement by witness Edwards, because it constituted
hearsay that did not, as the prosecutor contended below, fall within the excited utterance
exception to the rule excluding hearsay. An excited utterance will not be excluded under the
hearsay rule if the statement related to a startling event and was made while the declarant was
under the excitement caused by the event. People v Smith, 456 Mich 543, 550; 581 NW2d 654
(1998); MRE 803(2).
The factual circumstances surrounding Edwards’ statement were sufficient for it to
qualify as an excited utterance. Edwards, a resident at the Saxony Motel, witnessed a startling
event when he came to where defendant and the victim had been yelling at each other and learned
from defendant that he had thrown the victim from the second floor balcony. He looked over the
balcony and saw the victim laying on the ground moaning. After witnessing this startling event,
while still under the excitement it caused, he immediately and frantically rushed to the office and
instructed Willis to call the police because of the situation. The trial court did not abuse its
discretion in admitting the statement under the excited utterance exception to the hearsay rule.
Moreover, even if the trial court had erred in admitting Willis’ testimony, we would nonetheless
find no grounds for reversal, because the testimony was merely cumulative; its admission was
not outcome determinative. See People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999)
(setting forth harmless-error rule).
II. Sufficiency of the Evidence Supporting the Conviction
Next, defendant argues that the prosecutor failed to present sufficient evidence to support
the conviction. In reviewing this issue, we view the evidence in a light most favorable to the
prosecutor to determine whether a rational trier of fact could have found that all the elements of
the offense were proven beyond a reasonable doubt. People v Nelson, 234 Mich App 454, 459;
1
Although his argument is not entirely clear, defendant also appears to suggest that the trial court
should not have admitted Edwards’ testimony because it constituted hearsay. However, the
statement in question was admissible as an admission of a party-opponent under MRE
801(d)(2)(A).
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594 NW2d 114 (1999). We note that circumstantial evidence and reasonable inferences arising
from that evidence may be sufficient to prove the elements of a crime. Id.
“Voluntary manslaughter is an intentional killing committed under the influence of
passion or hot blood produced by adequate provocation and before a reasonable time has passed
for the blood to cool.” People v Hess, 214 Mich App 33, 38; 543 NW2d 332 (1995). “An
essential element of voluntary manslaughter is the intent to kill or commit serious bodily harm.”
Id.
Although no one actually saw defendant throw the victim off the balcony, there was
sufficient evidence for the jury to convict defendant of voluntary manslaughter. Testimony
established that defendant and Willis, his girlfriend at the time, got into an argument in a motel
room, after which she left the room and was rebuffed by defendant on her return. She summoned
the victim, who was the motel manager, to assist her in gaining access to the room after
defendant’s rebuff. Edwards then accompanied the victim to defendant’s room, heard defendant
arguing with the victim, left the room, and then returned a few minutes later, only to hear from
defendant that he had thrown the victim over the balcony. Moreover, Dewberry, the motel
cleaning woman, testified that she heard defendant say that he had thrown the victim over the
balcony and hoped that he died. After hearing this, Dewberry looked over the balcony and saw
the victim lying on the ground. In light of this evidence, the jury reasonably could have
concluded that defendant committed voluntary manslaughter.
III. Ineffective Assistance of Counsel
Next, defendant argues that his trial attorney rendered ineffective assistance of counsel by
failing to develop and present a self-defense argument.
To establish ineffective assistance of
counsel, a defendant must show that his attorney’s performance was deficient under an objective
standard of reasonableness and that the deficiency reasonably affected the outcome of the case.
People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994); People v Snider, 239 Mich App
393, 423-424; 608 NW2d 502 (2000). An attorney is presumed to provide effective assistance of
counsel; therefore, a defendant bears a heavy burden of proving otherwise. Stanaway, supra at
687. Here, because no evidentiary hearing on the ineffective assistance of counsel claim took
place in the lower court, our review is limited to the facts available from the existing record.2
People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998).
“[T]he killing of another person in self-defense is justifiable homicide if the defendant
honestly and reasonably believes that his life is in imminent danger or that there is a threat of
serious bodily harm.” People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990). Here, there is
no evidence on the existing record that the victim caused defendant to fear for his life or health
such that the use of deadly force was justified. Indeed, we note that the assertions in the ex parte
affidavit that defendant attached to his appellate brief cannot be considered by us; a defendant
2
Defendant contends that we should remand now for an evidentiary hearing. We decline to do
so. Indeed, defendant should not have waited until this case was being heard on the merits to
seek a remand. See People v Bright, 126 Mich App 606, 610; 337 NW2d 596 (1983).
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may not enlarge the record on appeal.3 People v Wiley, 112 Mich App 344, 346; 315 NW2d 540
(1981). Even if we did consider defendant’s assertion in the affidavit that the victim hit him in
the face, there is no evidence that throwing the victim off the balcony was a reasonable response
to the assault. People v Kemp, 202 Mich App 318, 322; 508 NW2d 184 (1993) (“[a] defendant is
not entitled to use any more force than is necessary to defend himself”). Reversal based on
ineffective assistance of counsel is unwarranted.
IV. Prosecutorial Misconduct
Finally, defendant argues that the prosecutor committed misconduct requiring reversal.
Defendant failed to object to the alleged prosecutorial misconduct at trial; therefore, reversal is
required only if a plain error occurred that affected the outcome of the case. People v Schutte,
240 Mich App 713, 720; 613 NW2d 370 (2000).
To determine whether a prosecutor committed misconduct requiring reversal, this Court
must review the relevant portions of the record and consider the prosecutor’s remarks in the
context used. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). “The test of
prosecutorial misconduct is whether the defendant has been deprived of his right to a fair and
impartial trial.” Id.
Defendant contends that the prosecutor argued facts not in evidence when he stated that
Dewberry testified to having heard an argument, because Dewberry in fact testified that she heard
defendant cussing to himself. However, in light of the other evidence introduced at trial and the
trial court’s instructions to the jury that the lawyers’ statements and arguments were not
evidence, the prosecutor’s minor misstatement did not reasonably contribute to the guilty verdict.
See Schutte, supra at 720.
Defendant contends that the prosecutor again argued facts not in evidence when he stated
that Denny Patel testified that he saw blood at the scene. However, Patel did in fact testify to
having seen blood at the scene; accordingly, no misconduct occurred.
Defendant contends that the prosecutor improperly vouched for the credibility of his
witnesses by referring to the fact that both Edwards and Dewberry were African-American, thus
allegedly implying that the jury should trust them, because defendant was also African-American,
and Edwards and Dewberry would not want to implicate a fellow African-American. We
disagree that impropriety requiring reversal occurred. Indeed, viewing the statement in context,
it is apparent that the prosecutor mentioned race only after defense counsel raised the issue by
cautioning the jury not to employ bias and convict defendant because he had a Caucasian
girlfriend. Moreover, the prosecutor’s statement about the race of Dewberry and Edwards did
not reasonably affect the outcome of the case. See Schutte, supra at 720.
3
In the affidavit, defendant contends that in addition to failing to develop a self-defense theory,
his attorney committed other errors, such as failing to adequately investigate the case. Again,
however, we cannot consider the assertions in the affidavit.
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Finally, defendant contends that the prosecutor allowed and failed to correct the allegedly
false testimony of Edwards, who testified at trial that he saw defendant standing outside of his
motel room but testified at the preliminary examination that he saw defendant “in the room.”
Defendant has failed to show that the prosecutor knowingly solicited false testimony to obtain a
conviction or that if the jury had learned of Edwards’ inconsistency on this non-crucial detail,
they would have acquitted defendant. See People v Lester, 232 Mich App 262, 277, 280; 591
NW2d 267 (1998). Again, defendant has failed to demonstrate plain error affecting the outcome
of the case.4 See Schutte, supra at 720.
Affirmed.
/s/ William B. Murphy
/s/ Patrick M. Meter
McDonald, J. did not participate.
4
We note that in his pro per brief, defendant alludes to the testimony of Dewberry and Willis and
to a written “witness statement” of another individual. Defendant’s argument regarding these
individuals is unclear. Defendant does not make a reasoned argument about their involvement in
the case and has therefore abandoned the issues relating to them. See People v Jones (On
Rehearing),201 Mich App 449, 456-457; 506 NW2d 542 (1993), and People v Canter, 197 Mich
App 550, 565; 496 NW2d 336 (1992).
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