PEOPLE OF MI V TORRANCE L MCLEMORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 2, 2002
Plaintiff-Appellee,
No. 223408
Eaton Circuit Court
LC No. 99-020159-FC
v
JEROME JUYSHA TAYLOR,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 223410
Eaton Circuit Court
LC No. 99-020222-FC
TORRANCE L. MCLEMORE,
Defendant-Appellant.
Before: Gage, P.J., and Hoekstra and Meter, JJ.
PER CURIAM.
Following a joint jury trial, defendants Jerome Taylor and Torrence McLemore both were
convicted of assault with intent to commit murder, MCL 750.83, possession with intent to
deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and possession of a firearm
during the commission of a felony, MCL 750.227b. Defendant Taylor also was convicted of
being a felon in possession of a firearm, 750.224f, and defendant McLemore was convicted of an
additional count of carrying a concealed weapon (CCW), MCL 750.227. The trial court
sentenced Taylor as a third habitual offender, MCL 769.11, to a prison term of twenty-five to
fifty years for the assault conviction, a concurrent three to ten year term for the felon in
possession conviction, a consecutive five to forty year term for the possession with intent to
deliver cocaine conviction, and a consecutive two-year term for the felony-firearm conviction.
The court sentenced McLemore to a prison term of fourteen to twenty-five years for the assault
conviction, a concurrent one to four year term for the CCW conviction, a consecutive 1-1/2 to 20
year term for the possession with intent to deliver cocaine conviction, and a consecutive twoyear term for the felony-firearm conviction. Taylor now appeals as of right in Docket No.
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223408 and McLemore appeals as of right in Docket No. 223410, which have been consolidated
for this Court’s consideration. We affirm.
Both defendants challenge the sufficiency of the evidence in support of their convictions
for assault with intent to commit murder. In a criminal case, due process requires that a
prosecutor introduce evidence sufficient to justify a trier of fact in concluding that the defendant
is guilty beyond a reasonable doubt. In reviewing the sufficiency of the evidence, this Court
must view the evidence in the light most favorable to the prosecutor and determine whether a
rational trier of fact could find that each essential element of the crime was proven beyond a
reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999). This Court will
not interfere with the jury’s role of determining the weight of evidence or the credibility of
witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748, amended on other grounds
441 Mich 1201 (1992); People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
The elements of assault with intent to commit murder are (1) an assault, (2) with an
actual intent to kill, (3) which, if successful, would make the killing murder. People v Barclay,
208 Mich App 670, 674; 528 NW2d 842 (1995). The specific intent to kill may be proven by
inference from any facts in evidence, including the use of a dangerous weapon. Barclay, supra;
People v DeLisle, 202 Mich App 658, 672; 509 NW2d 885 (1993).
McLemore contends that the prosecution failed to present sufficient evidence of a
specific intent to kill because the victim was wounded only in his buttocks. The victim testified
at trial that McLemore deliberately shot him in the hip while he turned to try to flee. McLemore
shot the victim from fairly close range, one witness estimated five feet, with a .45 caliber
handgun. This evidence was sufficient to enable a rational jury to infer that McLemore shot the
victim with an intent to kill, but was unsuccessful either because he had poor aim or perhaps
missed shooting the victim in a more vital area because the victim was moving. As this Court
has observed, “[t]he intentional discharge of a firearm at someone within range is an assault.
The usual result and purpose of such an assault is death." People v Johnson, 54 Mich App 303,
304; 220 NW2d 705 (1974).
Taylor argues that the evidence failed to establish the requisite specific intent to convict
him as an aider and abettor. A person who aids and abets the commission of a crime can be
liable for a specific intent crime if he possesses the specific intent required to convict the
principal of the underlying crime, or if he provides assistance with knowledge that the principal
has the required specific intent. People v King, 210 Mich App 425, 429; 534 NW2d 534 (1995).
As previously indicated, the evidence was sufficient to allow the jury to find beyond a reasonable
doubt that McLemore shot the victim under circumstances supporting an inference that he
intended to kill the victim. To properly convict Taylor of this charge, the jury would have to find
that Taylor either intended for the victim to be killed or assisted McLemore with knowledge that
McLemore intended to kill the victim.
According to the victim, Taylor picked up the handgun, which had fallen from
McLemore’s waistband, and held it while the victim and McLemore fought. McLemore
subsequently obtained the gun from Taylor and, according to some witness accounts, Taylor
either handed the gun to McLemore or the transfer occurred in a permissive manner.
Furthermore, the victim testified that although he did not know McLemore, he had had trouble
with Taylor in the past and knew that McLemore was Taylor’s “flunkie.” The fact that Taylor
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and McLemore approached the victim together and that McLemore became instantly aggressive
raises an inference that he did so with Taylor’s knowledge. Viewing together all this evidence,
as well as the testimony indicating that Taylor later regained possession of the gun and ordered
McLemore to dispose of it, we conclude that the prosecution presented sufficient evidence to
allow a rational jury to find beyond a reasonable doubt that at the time Taylor assisted
McLemore he intended to kill the victim or had knowledge that McLemore intended to shoot and
kill the victim.
Both defendants also argue that insufficient evidence supported their convictions of
possession with intent to deliver less than fifty grams of cocaine. The elements of possession
with intent to deliver cocaine are that (1) the defendant knowingly possessed a controlled
substance, (2) the defendant intended to deliver this substance to someone else, (3) the substance
possessed was cocaine and the defendant knew it was cocaine, and (4) the substance was in a
mixture that weighed less than 50 grams. People v Crawford, 458 Mich 376, 389; 582 NW2d
785 (1998). With regard to the element of possession, a person need not have actual physical
possession of a controlled substance to be found guilty of possessing it. Wolfe, supra at 519-520.
Possession may be either actual or constructive, and may be joint or exclusive. Id. at 520. The
controlling question is whether the defendant had dominion or control over the controlled
substance. People v Konrad, 449 Mich 263, 271; 536 NW2d 517 (1995). An individual’s
presence at the place where drugs are found is not itself sufficient to prove constructive
possession; some additional link between the defendant and the contraband must be shown.
However, circumstantial evidence and reasonable inferences arising from the evidence may
suffice to establish possession. People v Fetterley, 229 Mich App 511, 515; 583 NW2d 199
(1998).
In this case, the occupant of the apartment, into which defendants fled following the
shooting and in which the cocaine subsequently was found, testified that she saw Taylor remove
the plastic baggie that contained the cocaine from his pocket and throw it at her, telling her to get
rid of it. She refused and the baggie fell to the floor. Taylor told McLemore to pick it up, then
pulled a black handgun out of his waistband and handed it to McLemore. Taylor directed
McLemore to dispose of the drugs and the gun and McLemore ran upstairs. The parties
stipulated at trial that the plastic baggie contained thirty-five separately “knotted clear plastic
packages each containing off-white chunky material” weighing in total 10.24 grams, that one
randomly selected package tested positive for cocaine, and that a police lieutenant was prepared
to testify that in his experience the thirty-five individually packaged rocks of cocaine were
consistent with trafficking. This evidence was sufficient to enable the jury to find that both
defendants knowingly possessed the cocaine found in the apartment with the intent to deliver it.
Although Taylor emphasizes that the apartment occupant witness did not identify him at the
preliminary examination, the witness explained that the reason she did not identify him then was
because Taylor stared at her and she was scared, and the credibility of her trial testimony was for
the jury to resolve.1
1
We note our rejection of Taylor’s related suggestion that the prosecutor violated MCL
600.2167(4) by failing at his preliminary examination to call as a witness the state police
evidence technician who analyzed the substance contained in the plastic baggie. Taylor’s claim
lacks any merit because MCL 600.2167(1) expressly permits a prosecutor to introduce at a
(continued…)
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McLemore further disputes that sufficient evidence supported his CCW conviction,
which requires a showing that McLemore carried a pistol concealed on or about his person.
MCL 750.227(2). The victim testified that after defendants approached him and McLemore
initiated a physical confrontation, a handgun dropped to the ground from the area of
McLemore’s waist during the struggle. This evidence amply supported the jury’s rational
determination beyond any reasonable doubt that McLemore carried a concealed weapon. People
v Charron, 54 Mich App 26, 29-30; 220 NW2d 216 (1974).
Taylor also challenges his felony-firearm conviction, again claiming that the evidence
was insufficient to establish his possession of the firearm. To sustain a conviction for felonyfirearm, the prosecution must prove that the person charged had possession of the firearm during
the commission of a felony. People v Burgenmeyer, 461 Mich 431, 437; 606 NW2d 645 (2000).
“Possession may be actual or constructive and may be proved by circumstantial evidence.” Id.,
citing People v Hill, 433 Mich 464, 469-471; 446 NW2d 140 (1989). Whether actual or
constructive, possession may be joint as well as exclusive. Hill, supra at 470-471.
The aforementioned testimony that Taylor possessed the firearm while McLemore and
the victim were fighting and that Taylor subsequently transferred possession of the firearm to
McLemore, whereupon McLemore shot the victim, was sufficient to enable the jury to find
Taylor guilty of felony-firearm. Furthermore, according to the testimony of the apartment
occupant, Taylor exercised dominion and control of a firearm while possessing the cocaine found
in the apartment, and Taylor subsequently gave control of both to McLemore with orders for him
to get rid of them. This evidence amply supported Taylor’s felony-firearm conviction beyond a
reasonable doubt.
Taylor also argues that he received ineffective assistance of counsel when, during jury
deliberations, McLemore’s attorney agreed to stand in for Taylor’s trial attorney and then failed
to object to the trial court’s rereading of the instructions pertaining to intent following a question
from the jury. Because defendant failed to move for a new trial or an evidentiary hearing
regarding the issue of ineffective assistance of counsel, our review of this issue is limited to the
existing record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Thew,
201 Mich App 78, 90; 506 NW2d 547 (1993).
A defendant seeking a new trial on the ground that trial counsel was ineffective bears a
heavy burden. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). To justify
reversal, the defendant first must show that counsel’s performance fell below an objective
standard of reasonableness. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
The defendant must overcome a strong presumption that counsel’s decisions constituted sound
trial strategy. Stanaway, supra. The defendant also must show that counsel’s deficient
performance prejudiced the defense; the defendant must show a reasonable probability that, but
for counsel’s error, the result of the proceeding would have been different. People v Toma, 462
Mich 281, 302-303; 613 NW2d 694 (2000); Pickens, supra at 312.
(…continued)
preliminary examination “a report of the findings of a technician of the . . . state police . . . in
place of the technician’s appearance and testimony.” In this case, the prosecutor complied with
subsection 2167(1) at Taylor’s preliminary examination.
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The trial court instructed the jury on the elements of the offenses, including the requisite
intent elements, and gave a specific instruction regarding the necessary findings concerning
Taylor’s intent as an aider and abettor. Taylor’s counsel expressed that she approved these
instructions. She then indicated that she had a scheduling conflict and had to leave the court, but
that McLemore’s attorney could stand in for her. The jury deliberated for most of the day and
Taylor’s counsel returned before court was dismissed for the evening, but stated that she again
would be unavailable the following morning due to another court appearance. The next morning,
with Taylor’s express permission, the trial court allowed deliberations to continue with
McLemore’s attorney again standing in for Taylor’s counsel. The trial court noted that Taylor’s
counsel would be available by phone. In response to a jury request to hear additional
instructions regarding the elements of intent, the trial court provided essentially the same
instructions that it had read the previous day. When questioned about their propriety,
McLemore’s attorney approved of the instructions.
The jury requested another instruction on intent later in the day pursuant to a note that
read as follows:
Judge, with regard to document CJI, Criminal Jury Instructions, 2nd 8.1,
number 3c, point of clarification requested: 1) Does this item accurate [sic] reflect
the options available to the jury? 2) Is this item worded correctly? 3) Must the
findings of the jury match the charge (or lack thereof) to the finding of the other
defendant charge [sic] under the aiding and abetting theory?
The trial court subsequently instructed the jury again, in a manner substantially comporting with
CJI2d 8.1. Afterwards, the trial court stated the following:
So, with that I’m going to send you folks back. I don’t know if that
answers your question or clarifies things or not. I don’t feel at this point I can say
anything beyond that. So, you’re back, I guess, into the jury room and I’ll await
further instructions.
After the jury again retired to deliberate, McLemore’s counsel advised that she had no comments
or concerns with the instructions, and the following conversation ensued:
The Court: All right. . . . I don’t think that’s going to answer their
question in all honesty.
The Prosecutor: I think they want to know what that intent is. If it’s
specific intent to kill or if it’s knowing that the other person intended to kill when
he provided the assistance.
The Court: Yeah.
The Prosecutor: I guess all I can say is maybe after you had reread it, just
said that accurately reflects the state of the law. They asked if it’s accurately
worded, what can you say?
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The Court: Yeah. Perhaps I should have answered their question directly,
“Is this item worded correctly?” It is. But - The Prosecutor: By reading it you’re saying it is.
The Court: If I, if I get another note I think I’m going to take a close look
at the notes under, after 8.1 and I might elaborate and in effect summarize what
different Supreme Court cases have held in regard to 8.1. It might help them to
clarify, I don’t know. There’s some language in here that I think would help
them, and I hesitate to put it on the record, but I might because it’s the state of the
law. So, we’ll see what they say. Thanks.
The jury did not return with another question regarding intent, but with a verdict approximately
1-1/2 hours later.
Taylor now argues that the foregoing circumstances demonstrate that he did not receive
the effective assistance of counsel due to an inadvertent conflict of interest on the part of
McLemore’s attorney. Taylor maintains that McLemore’s attorney deliberately kept silent
instead of informing the trial court that the correct answer to the jury’s third question should
have been “no,” that the jury remained free to find that McLemore had the specific intent to
commit murder, while finding either that Taylor did not have the specific intent to commit
murder or that Taylor did not know that McLemore had the specific intent to kill.
We are not convinced that Taylor was denied the effective assistance of counsel. The
existing record does not substantiate Taylor’s suggestion of a theoretical conflict of interest. We
first note that both Taylor’s counsel and McLemore’s attorney had approved of the instructions
initially read to the jury, and that the trial court’s subsequent instructions mirrored the initial,
correct instructions. Measuring the performance of McLemore’s attorney against an objective
standard of reasonableness and without the benefit of hindsight, People v LaVearn, 448 Mich
207, 216; 528 NW2d 721 (1995), we find that the decision to allow the jury to rehear the
standard jury instruction does not appear so objectively unreasonable as to support a conclusion
that McLemore’s attorney was not functioning as the counsel guaranteed Taylor by the Sixth
Amendment. People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). Furthermore,
“[e]ven if imperfect, instructions do not create error if they fairly present to the jury the issues for
trial and sufficiently protect the defendant’s rights.” People v Bartlett, 231 Mich App 139, 155;
585 NW2d 341 (1998). Because the jury was properly instructed that to find Taylor guilty as an
aider or abettor it must find that Taylor specifically intended the victim’s death or knew that
McLemore possessed that intent, King, supra at 429, any failure to object by McLemore’s
attorney was not objectively unreasonable, and we are unpersuaded that the absence of any
objection prejudiced Taylor. We therefore conclude that Taylor has failed to show that he was
denied the effective assistance of counsel.
Taylor also avers for the first time on appeal that the prosecutor engaged in misconduct at
the preliminary examination. We find no merit to this unpreserved issue. First, we are not
persuaded that defendant has demonstrated plain error in the prosecutor’s questioning of a
witness or introduction of a law enforcement information network printout regarding Taylor.
People v Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). Even assuming defendant
could establish misconduct, he has failed to show how the prosecutor’s actions at the preliminary
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examination prejudiced him at trial. Accordingly, appellate relief is not warranted. People v
Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
Taylor’s unpreserved claims of a fair cross-section violation and improper use of
peremptory challenges during jury selection likewise do not warrant appellate relief. Although
Taylor asserts that his particular jury consisted of all white jurors, Taylor provides no indication
of the composition of the jury pool itself, of the process used to select the pool, or any indication
of how the selection process systematically excluded minorities. Thus, Taylor has failed to
establish a prima facie violation of the fair cross-section requirement. People v Howard, 226
Mich App 528, 533; 575 NW2d 16 (1997). Taylor also has failed to demonstrate that the
prosecutor improperly used peremptory challenges to remove members of his race. Batson v
Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). Although defendant states that his
jury contained no minorities, he provides no indication of the racial makeup of the jurors who
were excluded and this information is not apparent from the record.
McLemore contends that the trial court erred when it allowed evidence of a photographic
identification made by the victim twenty-nine days after the shooting. A trial court’s decision to
admit identification evidence will not be reversed unless it is clearly erroneous. Clear error
exists when the reviewing court is left with a definite and firm conviction that a mistake was
made. People v Kurylczyk, 443 Mich 289, 303 (Griffin, J), 318 (Boyle, J); 505 NW2d 528
(1993); People v Williams, 244 Mich App 533, 537; 624 NW2d 575 (2001).
McLemore’s challenges to the use of a photographic lineup lack merit. A photographic
lineup should not be used for identification “when a suspect is in custody or when he can be
compelled by the state to appear at a corporeal lineup.” Kurylczyk, supra at 298 n 8; People v
Strand, 213 Mich App 100, 104; 539 NW2d 739 (1995). A defendant is subject to legal
compulsion to appear at a lineup when a warrant has been issued for his arrest. People v
Harrison, 138 Mich App 74, 77; 359 NW2d 256 (1984). At the time of the photographic
identification in this case, McLemore was not in custody and no warrant had issued for his arrest.
Accordingly, the photographic lineup was not per se improper. Furthermore, we have reviewed
the circumstances surrounding the lineup to the extent possible from the existing record and
conclude that the photographic lineup was not impermissibly suggestive. People v Gray, 457
Mich 107, 111; 577 NW2d 92 (1998); Kurylczyk, supra at 302.
McLemore next asserts that the trial court erred in allowing the parties to stipulate that
(1) the plastic baggie found inside the apartment to which defendants fled following the shooting
contained thirty-five “knotted clear plastic packages each containing off-white chunky material”
with a total weight of 10.24 grams, (2) one sample of the material tested positive for crack
cocaine, and (3) a police officer was prepared to testify that in his opinion the amount of the
cocaine and the manner in which it was packaged was consistent with drug trafficking. Because
defense counsel affirmatively stipulated to the admission of this evidence, defendant has waived
any claim of error. People v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000).
Furthermore, considering that McLemore raised an alibi defense at trial, he has not shown that
defense counsel was ineffective in deciding to stipulate to this evidence. People v Emerson
(After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994).
McLemore further claims that the trial court abused its discretion when sentencing him to
a term of fourteen to twenty-five years’ imprisonment for his conviction of assault with intent to
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commit murder, and 1-1/2 to 20 years’ imprisonment for his possession with intent to deliver
cocaine conviction. Because defendants committed the instant offenses after January 1, 1999,
the legislative sentencing guidelines apply. MCL 769.34(2). Where, as here, the trial court
imposes a minimum sentence within the sentencing guidelines range, this Court must affirm the
sentence absent an error in scoring the guidelines or the trial court’s reliance on inaccurate
information in determining the defendant’s sentence. MCL 769.34(10); People v Leversee, 243
Mich App 337, 348; 622 NW2d 325 (2000). A sentencing judge has wide discretion in
determining the number of points to be scored provided that evidence on the record adequately
supports a particular score. “Scoring decisions for which there is any evidence in support will be
upheld.” People v Elliott, 215 Mich App 259, 260; 544 NW2d 748 (1996).
McLemore challenges the trial court’s scoring decision for offense variable thirteen (OV
13), which considers whether the offenses were related to the defendant’s involvement in an
organized criminal group. MCL 777.43. Given the fact that McLemore abandoned his
challenges to the prosecutor’s offer of proof concerning both defendants’ involvement with the
Garden Boys, a subset of the Gangster Disciple gang, we find that the trial court properly
considered this evidence at sentencing. In light of this information, coupled with evidence that
the victim had had prior trouble with Taylor, a high-ranking member of the gang, the fact that the
victim was carrying cocaine at the time of the offense, and that Taylor also was carrying cocaine
packaged for sale, the record supports the prosecutor’s theory that the altercation with the victim
involved a turf war between the victim and defendants. The trial court did not err in determining
that the crimes constituted part of a pattern of felonious criminal activity related to membership
in an organized criminal group. Elliott, supra. We conclude that the court properly scored ten
points for OV 13, and we affirm McLemore’s sentences, which fell within the guidelines ranges.
Affirmed.
/s/ Hilda R. Gage
/s/ Joel P. Hoekstra
/s/ Patrick M. Meter
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