PEOPLE OF MI V DEWAYNE PHILLIPS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 14, 2002
Plaintiff-Appellee,
v
No. 225047
Calhoun Circuit Court
LC No. 99-002852-FC
DEWAYNE PHILLIPS,
Defendant-Appellant.
Before: Bandstra, P.J., and Hoekstra and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right his convictions of first-degree murder, MCL 750.316, and
possession of a firearm during the commission of a felony, MCL 750.227b (felony-firearm). The
trial court sentenced defendant to life imprisonment for the murder conviction to run consecutive
to a two-year term for the felony-firearm conviction. We affirm.
Defendant first argues that he is entitled to a new trial on grounds of ineffective
assistance of counsel. His claim is based on the fact that another attorney in his counsel’s office
was representing prosecution witness Sherod Reed in an unrelated criminal matter. Defendant
argues that this presented a conflict of interest, of which he was unaware and did not waive. We
find no merit to defendant’s claim.
At the end of defendant’s first trial, which resulted in a mistrial, the prosecution received
additional information that led to the identification of Sherod Sedore and three others as new
witnesses. On the first day of trial, the prosecution moved to amend its witness list to add them
and was allowed to do so. When Sherod Sedore testified, however, he testified that his name
was Sherod Reed. After the verdict was rendered in the case, defense counsel learned that
another attorney in his office was representing Reed in another matter. Apparently, counsel
checked to see if his office represented Sherod Sedore when the name first came to light;
however, he never checked with respect to Sherod Reed.
A conflict is never presumed or implied. See People v Lafay, 182 Mich App 528, 530;
452 NW2d 852 (1990). Rather, the defendant has the burden of establishing a prima facie case
of ineffective assistance of counsel by demonstrating the existence of an actual conflict of
interest that adversely affected the adequacy of his representation. Id., citing Cuyler v Sullivan,
446 US 335, 348-350; 100 S Ct 1708; 64 L Ed 2d 333 (1980). In People v Fowlkes, 130 Mich
App 828, 836; 345 NW2d 629 (1983), the defendant’s counsel was aware of a potential conflict
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and brought it to the trial court’s attention on the first day of trial. The defendant’s counsel was a
member of the public defender’s office and learned that another lawyer in the office had
represented a codefendant earlier with respect to the case. The defendant planned to call the
codefendant as a witness. Id. Because the codefendant had pleaded guilty and already was
sentenced, this Court concluded that the defendant was not deprived of his counsel’s undivided
loyalty and that the defendant’s defense was not “slighted for that of” the codefendant. Id. More
importantly, this Court noted that it was impossible for the defendant to express how his
counsel’s representation may have been affected. Id. “To warrant reversal, the prejudice shown
must be actual, not merely speculative.” Id. See also People v Clark, 133 Mich App 619, 629;
350 NW2d 754 (1983).
In this case, defense counsel did not know of a potential conflict of interest and was
completely unaware that another attorney in his firm was representing Reed. Under the
circumstances, defendant cannot demonstrate any prejudice, i.e., he cannot articulate how his
counsel’s representation was affected by a conflict about which counsel was unaware. Thus, we
find no actual conflict or prejudice.1
Defendant next argues that the prosecutor admitted irrelevant and prejudicial evidence
that the police recovered a handgun, drugs, ammunition, and a sunbeam electronic scale from the
residence where the shooting of the victim took place. Defendant argues that there was no
foundation for the admission of the evidence, that the evidence was not related to the crime, and
that it constituted other “bad-act” evidence in violation of MRE 404(b). When reviewing
unpreserved evidentiary issues, we must determine if defendant has demonstrated the existence
of a plain error, which affected his substantial rights, i.e., affected the outcome of the lower court
proceedings. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). If defendant
demonstrates the aforementioned, this Court must then exercise its discretion in deciding
whether to reverse. Id. at 763.
Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error “‘seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.” [Id. (citation omitted).]
Defendant’s argument that the prosecutor denied him a fair trial by admitting this
evidence is clearly misleading. The information about the gun, ammunition and scale was first
introduced by defense counsel. In pursuing the defense theory that defendant was misidentified
as the shooter, defense counsel cross-examined Rochelle James about the .45 caliber handgun
that was found in the James’ house. Defense counsel also elicited testimony from Rochelle that
it was not uncommon for lots of people, whose names were unknown, to visit the James’ house.
Counsel then specifically asked Rochelle about the boxes of ammunition and “scales” that were
1
To the extent that defendant argues that actual prejudice need not be shown, we disagree.
Defendant relies on People v Gallagher, 116 Mich App 283, 287; 323 NW2d 366 (1982),
however, unlike the defendant in Gallagher, defendant herein cannot articulate an actual or
specific conflict that interfered with or potentially interfered with his counsel’s representation.
Lafay, supra at 530. Thus, defendant has not met his burden of showing that he was deprived of
the effective assistance of counsel.
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found in the house. On cross-examination of Bryan James, defense counsel asked about the .45
caliber gun, ammunition and illegal drugs. He asked Bryan about whether it was common for
people visiting the house to use only their street names. Only after the evidence was mentioned
by defendant did the prosecutor elicit related information from police witnesses. Defense
counsel subsequently questioned the detective who collected the evidence and the detective
admitted that firearms, scales and ammunition are things that can be found at a drug house.
Defense counsel asked about the items that were found at the James’ house in order to
better argue defendant’s misidentification defense and to cast doubt on the credibility of
Rochelle, Bryan and Sheila James. By design of defense counsel, the jury was informed that a
lot of people came and went from the house, that the occupants did not know all of the people
who came and went, that the occupants did not know the real names of people who came and
went, and that items normally found in a drug house were found in the James’ house. In addition
to being relevant to the defense, the evidence was not prejudicial to defendant. Defendant did
not live at the James’ house and he maintained that he had never been there. His counsel elicited
that his fingerprints were not found there. The evidence at issue reflected only on the credibility
of the prosecution’s witnesses. Because defendant introduced the evidence to support his
defense and because the evidence was not prejudicial to the outcome of his trial, we find no plain
error requiring reversal. We further note that “[a] defendant should not be allowed to assign
error on appeal to something his own counsel deemed proper at trial.” People v Green, 228
Mich App 684, 691; 580 NW2d 444 (1998). “To do so would allow a defendant to harbor error
as an appellate parachute.” Id.
Defendant next argues that reversal is required because the prosecutor engaged in
misconduct when he asked defendant’s sister and grandmother during cross-examination whether
they visited defendant in jail. Defendant argues that information that he was incarcerated was
highly prejudicial. Because defendant did not object to the prosecutor’s questions, this issue is
not preserved.
[A] defendant’s unpreserved claims of prosecutorial misconduct are
reviewed for plain error. In order to avoid forfeiture of an unpreserved claim, the
defendant must demonstrate plain error that was outcome determinative. “No
error requiring reversal will be found if the prejudicial effect of the prosecutor’s
comments could have been cured by a timely instruction.” [People v Watson, 245
Mich App 572, 586; 629 NW2d 411 (2001) (citations omitted).]
We disagree that any error requires reversal. Defendant’s witnesses testified that they
were present when defendant was arrested. Defendant’s grandmother did not provide any alibi
information to the police at that time or at any other time before trial and his sister claimed that
she did not know the details of the crime until right before trial. The prosecutor attempted to
discredit the alibi testimony by eliciting evidence that the witnesses may have spoken with
defendant about the facts of the case and learned details to assist in providing the alibi defense.
Toward this end, the prosecutor asked the witnesses whether they had talked to defendant since
he was in jail. Defendant argues that the reference to his being in jail requires reversal. We
disagree.
While the prosecutor could have refrained from referring to defendant’s being in jail, any
prejudice could have been cured by a curative instruction. See, e.g., People v Taylor, 110 Mich
-3-
App 823, 835; 314 NW2d 498 (1981) (where the prosecutor questioned the defendant about
whether he received love letters while in jail, this Court found no error requiring reversal where a
cautionary instruction was given that was adequate to dispel any prejudice). Further, defendant
herein cannot demonstrate that the prosecutor’s two references to defendant’s jail status affected
the outcome of the case. It was clear to the jury that defendant was arrested for the crime on
which he was tried. The reference to his being in jail did not allude to any former confinement
for any other crime. More importantly, defense counsel himself asked defendant about being in
jail and Larry Williams testified, without objection, that he met defendant in jail. Therefore, the
jury was aware or should have been aware that defendant was in jail after being arrested. There
is no plain error requiring reversal. Watson, supra.
Defendant next argues that the trial court improperly excused the prosecutor from
producing three witnesses. The prosecutor argued that, despite the exercise of due diligence, the
witnesses could not be produced. Defendant objected to the request to excuse production of the
witnesses. Thus, the issue is preserved. “The inability of the prosecution to locate a witness
listed on the prosecution’s witness list after the exercise of due diligence constitutes good cause
to strike the witness from the list.” People v Canales, 243 Mich App 571, 577; 624 NW2d 439
(2000). This Court will not overturn a trial court’s decision with respect to due diligence absent
an abuse of discretion, and the determination of due diligence is a factual matter that will not be
reversed unless clearly erroneous. People v Lawton, 196 Mich App 341, 347-348; 492 NW2d
810 (1992). The test for due diligence is whether diligent, good-faith efforts were made to
produce the witness. Id.
At trial, a special record was made, outside the presence of the jury, about the
prosecution’s attempts to produce the three witnesses at issue. Having reviewed the special
record, we uphold the trial court’s rulings. With respect to Linda Simms and Denise Powell, the
prosecution and police made diligent, good-faith efforts to locate them. They were not required
to take every measure possible to secure and produce the witnesses at trial. People v Cummings,
171 Mich App 577, 585; 430 NW2d 790 (1988). With respect to Charles Brim, his name came
to light only after the first trial, which ended in a mistrial on November 29, 1999. Nevertheless,
the witness was located and actually served with a subpoena. He chose to ignore the subpoena.
There was no information that the prosecutor anticipated this and it appears that Brim
purposefully eluded testifying by not responding to the subpoena. Under the circumstances, the
prosecutor took reasonable measures to secure Brim’s presence at trial.
Defendant next argues that the trial court abused its discretion in allowing the late
endorsement of Sherod Reed. The prosecutor learned about potential witness Michael Sedore
toward the end of the first trial. The police investigated this lead and other names came to light.
On December 3, 1999, the prosecutor notified defendant that it wanted to add four witnesses,
including Sherod Sedore (a/k/a Reed) to its witness list. On the first day of trial, the trial court
heard the prosecution’s motion to add the new witnesses as possible alibi rebuttal witnesses.
Defense counsel argued unfair surprise and pointed out that the witnesses were more likely res
gestae witnesses, not alibi rebuttal witnesses. The trial court agreed that the witnesses’ testimony
belonged in the case-in-chief and it allowed the prosecution to add them to its witness list. It
also informed defendant that he would have the opportunity to interview the witnesses and that
an adjournment or recess could be taken.
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A trial court's decision to allow a late endorsement of a witness is
reviewed for an abuse of discretion. An abuse of discretion exists when the
court's decision is so grossly violative of fact and logic that it evidences perversity
of will, defiance of judgment, and the exercise of passion or bias. Stated
differently, an abuse of discretion exists when an unprejudiced person,
considering the facts on which the trial court acted, would say there was no
justification or excuse for the ruling. [People v Gadomski, 232 Mich App 24, 3233; 592 NW2d 75 (1998) (citations omitted).]
“A prosecutor's late endorsement of a witness is permitted at any time upon leave of the
court and for good cause shown. MCL 767.40a(4).” People v Canter, 197 Mich App 550, 563;
496 NW2d 336 (1992). In Canter, good cause was found where the witness was not identified
until the middle of trial. Id. Here, too, good cause was shown. Michael Sedore was not
identified until sometime at the end of the first trial. Only after investigating did the police learn
of Sherod Sedore (a/k/a Reed). Within days, the prosecution attempted to add him to its witness
list. We further note that, under the circumstances, the listing of the witness was not technically
late because the prosecution had no duty to learn about Reed at an earlier time. See People v
Burwick, 450 Mich 281, 290-291; 537 NW2d 813 (1995). It was only required to give advance
notice of witnesses known to the prosecution. Id. Because the prosecution did not know about
the witness, it could not have listed him at an earlier time. Moreover, the trial court provided
defendant an opportunity to interview Reed and prepare for cross-examination. Thus, the trial
court fashioned a remedy to account for any “unfair surprise.” There was no abuse of discretion.
Defendant next argues that the trial court committed error requiring reversal when it
refused to instruct the jury on the cognate lesser offense of voluntary manslaughter. We
disagree. Where a defendant is convicted of first-degree murder and the jury rejects other lesser
included offenses, the trial court’s failure to instruct on voluntary manslaughter is harmless.
People v Sullivan, 231 Mich App 510, 520; 586 NW2d 578 (1998), citing People v Beach, 429
Mich 450, 481, 490-491; 418 NW2d 861 (1988). Here, the jury rejected second-degree murder.
Thus, any error with respect to the voluntary manslaughter instruction was harmless. Sullivan,
supra. See also People v Coddington, 188 Mich App 584, 605-606; 470 NW2d 478 (1991).
Next, defendant argues that his first-degree murder conviction must be reduced to
second-degree murder because there was insufficient evidence of premeditation and deliberation.
When reviewing the sufficiency of the evidence, we view the evidence in a light most favorable
to the prosecution and determine whether a rational trier of fact could find that the essential
elements of the crime were proved beyond a reasonable doubt. People v Hoffman, 225 Mich
App 103, 111; 570 NW2d 146 (1997).
In order to convict defendant of first-degree, premeditated murder, the prosecution had to
prove that defendant intentionally killed the victim and that the act of killing was premeditated
and deliberate. People v Kelly, 231 Mich App 627, 642; 588 NW2d 480 (1998).
Premeditation and deliberation require sufficient time to allow the
defendant to take a second look. The elements of premeditation and deliberation
may be inferred from circumstances surrounding the killing. [Id. (citations
omitted).]
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Minimal circumstantial evidence is sufficient to prove an actor’s state of mind. See People v
Bowers, 136 Mich App 284, 297; 356 NW2d 618 (1984). In People v Plummer, 229 Mich App
293, 300-301; 581 NW2d 753 (1998), this Court examined the issue of premeditation and stated:
“[I]t underscores the difference between the statutory degrees of murder to
emphasize that premeditation and deliberation must be given independent
meaning in a prosecution for first-degree murder. The ordinary meaning of the
terms will suffice. To premeditate is to think about beforehand; to deliberate is to
measure and evaluate the major facets of a choice or problem. As a number of
courts have pointed out, premeditation and deliberation characterize a thought
process undisturbed by hot blood. While the minimum time necessary to exercise
this process is incapable of exact determination, the interval between initial
thought and ultimate action should be long enough to afford a reasonable man
time to subject the nature of his response to a ‘second look.’[”]
***
Though not exclusive, factors that may be considered to establish
premeditation include the following: (1) the previous relationship between the
defendant and the victim; (2) the defendant's actions before and after the crime;
and (3) the circumstances of the killing itself, including the weapon used and the
location of the wounds inflicted. Premeditation and deliberation may be inferred
from all the facts and circumstances, but the inferences must have support in the
record and cannot be arrived at by mere speculation.
A pause between the initial homicidal intent and the ultimate act may, in
the appropriate circumstances, be sufficient for premeditation and deliberation.
However, the Legislature's use of the words "willful," "deliberate," and
"premeditated" in the first-degree murder statute indicates its intent to require as
an element of that offense substantially more reflection on and comprehension of
the nature of the act than the mere amount of thought necessary to form the intent
to kill. As the Supreme Court has stated, "when a homicide occurs during a
sudden affray ... it would be 'a perversion of terms to apply the term deliberate to
any act which is done on a sudden impulse.'" To speak of premeditation and
deliberation being instantaneous, or taking no appreciable time, destroys the
statutory distinction between first- and second-degree murder. [Citations
omitted.]
In this case, viewed in a light most favorable to the prosecution, there was sufficient
evidence of premeditation and deliberation. Defendant attempted to control the actions of the
victim and the person with whom the victim was arguing. When defendant was ignored, he fired
a warning shot into the porch after stating, “Do y’all think I’m playin.” When the victim turned
to look at defendant, defendant raised the gun, pointed it at the victim’s head, and fired. The
evidence indicated that this occurred somewhere between a couple of seconds and a couple of
minutes after the first shot. The evidence, viewed most favorably to the prosecution, indicates
that defendant and the victim did not engage in any argument before defendant put the gun to the
victim’s head and shot. The gun was so close to the victim’s head at the time of shooting that
gun powder tattooing was found by the orbit of the victim’s eye where the bullet entered. A
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witness testified that defendant later stated that he was dating the victim’s girlfriend and that,
when the victim and “the girl” argued, defendant told the victim to leave. When the victim did
not, defendant went inside the house, obtained a gun and shot it into the ground. He then raised
the gun and shot the victim in the face. A rational jury could have found premeditation and
deliberation based on the evidence presented.2
Defendant next argues that the trial court improperly denied his Batson challenge during
jury voir dire. Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). Defendant
objected when the prosecutor used a peremptory challenge to excuse the only black juror on the
panel at the time. Defendant argues that the juror’s removal was improper and that removal of
the only juror of defendant’s race satisfies the requirements necessary for a successful Batson
challenge. Defendant’s argument has no merit.
A Batson ruling is reviewed for an abuse of discretion. People v Howard, 226 Mich App
528, 534; 575 NW2d 16 (1997). Batson prohibits a prosecutor from exercising peremptory
challenges to strike jurors solely on the basis of their race. Batson, supra at 96. “It is wellsettled that the party opposing the strike must make a prima facie showing of discrimination
before the burden shifts to the other party to provide a race-neutral rationale for striking the
juror.” Clarke v Kmart Corp (After Remand), 220 Mich App 381, 383; 559 NW2d 377 (1996).
In deciding whether a defendant has made a prima facie case of discriminatory dismissal,
the trial court must consider all relevant circumstances, including whether there is
a pattern of strikes against black jurors, the questions and statements made by the
prosecutor during voir dire and in exercising his challenges, all of which may
support or refute an inference of discriminatory purpose. [People v Barker, 179
Mich App 702, 705-706; 446 NW2d 549 (1989), aff’d 437 Mich 161 (1991),
habeas corpus gtd on other grounds 199 F3d 867 (1999) (citation omitted).]
This Court also has stated that
the race of a challenged juror alone is not enough to make out a prima facie case
of discrimination. The mere fact that a party uses one or more peremptory
challenges in an attempt to excuse minority members from the jury venire . . . is
not enough to establish a prima facie showing of discrimination. [Clarke, supra,
citing People v Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989).]
If there is no prima facie showing of purposeful discrimination, a prosecutor is not required to
offer a neutral explanation for the use of the peremptory challenge. Id.; Barker, supra at 706.
To overcome a claim of discriminatory purpose, the prosecution must
provide a racially neutral explanation for peremptorily excluding racial minorities
from the venire, and the trial court must decide if the defendant proved purposeful
discrimination. [People v Ho, 231 Mich App 178, 184; 585 NW2d 357 (1998).]
2
We disagree with defendant that the evidence showed an accidental shooting.
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In this case, there was no prima facie showing of purposeful discrimination. Defendant
did nothing but point to the race of the juror who was removed. This is insufficient. Clarke,
supra. Further, at the time defendant made the Batson challenge, the juror at issue was the first
juror of defendant’s race to be removed from the jury and the record indicates that there were
other potential jurors of defendant’s race in the venire. It is unclear whether any of those
potential jurors sat on defendant’s jury. Defendant failed to demonstrate any facts or
circumstances to support an inference that the juror at issue was excused because of her race.
Thus, the trial court did not abuse its discretion in denying defendant’s Batson challenge.3
Finally, defendant argues that his sentence of life imprisonment without the possibility of
parole is an unconstitutional determinate sentence, which violates Const 1963, art 4, § 45. He
also argues that the sentence constitutes cruel and unusual punishment. Both arguments are
without merit.
In People v Snider, 239 Mich App 393, 426-428; 608 NW2d 502 (2000), citing People v
Cooper, 236 Mich App 643, 660-664; 601 NW2d 409 (1999), this Court specifically rejected a
claim that a determinate life sentence without the possibility of parole offends Const 1963, art 4,
§ 45. Contrary to defendant’s argument, the constitutional provision does not bar determinate
sentencing. Id. Further, a mandatory life sentence without the possibility of parole is not cruel
or unusual punishment when imposed on an adult. People v Launsburry, 217 Mich App 358,
363; 551 NW2d 460 (1996).
Affirmed.
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
3
We also note that the prosecutor offered valid, race neutral reasons for removing the juror. The
prosecutor indicated that he excused the juror because she sat on a previous panel in Calhoun
County that month and the prosecutor believed that the panel had acquitted the defendant in that
case. In addition, at defendant’s first trial, several of the jurors were women. The prosecution
did not want as many women on the panel for the second trial. Both of these reasons are race
neutral. The fact that the prosecutor removed the only black juror from the panel at one point in
time is simply insufficient to sustain a Batson challenge.
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