PEOPLE OF MI V CORDALL R NEAL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 14, 2004
Plaintiff-Appellee,
v
No. 246031
Lenawee Circuit Court
LC No. 02-009793-FC
CORDALL R. NEAL,
Defendant-Appellant.
Before: Gage, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of first-degree murder, MCL 750.316,
carrying a weapon with unlawful intent, MCL 750.226, and possession of a firearm during the
commission of a felony, MCL 750.227b. He was sentenced as a habitual offender, third offense,
MCL 769.11, to life imprisonment for the murder conviction, fifty-seven months to ten years’
imprisonment for the carrying a weapon offense, and two years’ imprisonment for the felonyfirearm conviction. Defendant appeals as of right, and we affirm.
Defendant left his residence in Clinton Township and drove with relatives to Adrian,
Michigan to visit his son. Defendant knew that his relatives carried weapons, although he denied
seeing any weapons that evening. He also knew that his relatives were looking for a particular
individual named Jamal Bradley, who had allegedly stolen money from their parents, defendant’s
grandparents. Defendant testified that he feared Bradley because he had heard rumors that
Bradley was threatening to shoot him. Yet, he knew that his relatives were seeking Bradley out
to determine a repayment schedule for the money he had taken from their parents. Defendant
testified that he drove to the home of his son, but did not stop there because he believed that his
ex-girlfriend had a guest over.
Defendant was driving a van with his cousin seated in the front passenger seat and his
two uncles seated in the back seat. Defendant came upon a vehicle that he believed was driven
by Bradley. He was instructed by his relatives to pull up alongside the vehicle because they
wanted to talk to Bradley. He complied and heard a gunshot followed by “all types of gunshots.”
Defendant drove off because he “just wanted to assist ’em [sic] to get away.” Defendant testified
that there was no plan or discussion to shoot the driver of the vehicle. The van driven by
defendant was stopped a short distance from the shooting. The weapons used by the occupants
had been discarded between the location of the shooting and the location of the traffic stop. At
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the police station, defendant learned that Bradley was not driving the vehicle, and Marcus
Newsom had been shot and killed instead.
On cross-examination, defendant acknowledged that he had three children who lived in
the area, but he only attempted to see his son. He acknowledged that there was nothing to
preclude him from stopping in to visit his son. Defendant also acknowledged that he made a
telephone call to try and locate Bradley when he got into town. Although he had testified that he
was “afraid” of Bradley, defendant nonetheless tried to locate Bradley when accompanied by his
relatives whom he assumed were carrying guns. Defendant could not definitively testify to
where the first gunshot came from. After the gunshot, defendant “stopped for a second, then the
back swingin’ doors comes (sic) open, gunshots, I hear a bunch of gunshots then.” Defendant
knew that his front passenger, his cousin, was shooting, but he did not know, but guessed, that
his uncles were also shooting.
Witness Carolyn Sue McMillian testified that defendant telephoned her home on the
evening of the shooting and asked her about the whereabouts of Bradley. The day after the
shooting, McMillian received a telephone call from defendant. Defendant apologized to
McMillian about the shooting and advised her that the gunshots were not meant for Newsom.
Following a jury trial, defendant was convicted as charged.
Defendant first alleges that the trial court erred in denying his motion to suppress his
statements.1 We disagree. When reviewing a trial court’s determination of the voluntariness of a
confession, an appellate court engages in de novo review of the entire record. People v Daoud,
462 Mich 621, 629; 614 NW2d 152 (2000). While a trial court’s factual findings are reviewed
under the clearly erroneous standard, id., an appellate court is required to examine the entire
record and make an independent determination of the issue as a question of law. People v Wells,
238 Mich App 383, 386; 605 NW2d 374 (1999).
On the record available, we cannot determine that the trial court’s factual findings were
clearly erroneous. The totality of the circumstances are to be considered when determining
whether a statement is voluntary. People v Cipriano, 431 Mich 315, 334; 429 NW2d 781
(1988). The factors that may be considered include the age of the accused, his education or
intelligence level, his prior contacts with police, the nature and extent of the questioning, the
length of the detention, the mental and physical state of the accused, and any threats or abuse.
Id. Ultimately, the test of admissibility is whether the totality of the circumstances surrounding
the making of the confession indicate that it is freely and voluntarily made. Id. “To knowingly
waive Miranda2 rights, a suspect need not understand the ramifications and consequences of
choosing to waive or exercise the rights that the police have properly explained to him.” People
v Cheatham, 453 Mich 1, 28; 551 NW2d 355 (1996).
1
In the trial court, defendant alleged that the statement was not knowing, intelligent, and
voluntary under the totality of the circumstances. On appeal, defendant alleges that the
statements were the “fruit of the poisonous tree.” Despite the change in strategy, we nonetheless
have addressed the merits of the claim on appeal.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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In the present case, two police officers testified regarding their conversation with
defendant and his waiver of his Miranda rights. The testimony indicated that defendant was
engaged in minor conversation and Miranda rights were administered when the topic of the
conversation led to the shooting incident. The trial court concluded that the testimony of the
officers was credible, and defendant did not present any testimony to contradict the officers.
Under the circumstances, we cannot conclude that the trial court’s factual conclusions were
clearly erroneous. Daoud, supra.3
Defendant next alleges that the trial court abused its discretion in denying the defense
motion to quash the bindover where insufficient evidence of premeditation and deliberation were
presented. We disagree. “The evidentiary error committed at the preliminary examination stage
… does not require automatic reversal of the subsequent conviction absent a showing that
defendant was prejudiced at trial.” People v Hall, 435 Mich 599, 602-603; 460 NW2d 520
(1990). See also People v Yost, 468 Mich 122, 124 n 2; 659 NW2d 604 (2003) (“If defendant
went to trial and w[as] found guilty, any subsequent appeal would not consider whether the
evidence adduced at the preliminary examination was sufficient to warrant a bindover.”)
Defendant does not allege prejudice at trial as a result of the bindover. Consequently, any
challenge to the bindover on appeal does not provide relief to defendant.4
3
We note that on appeal and in the supplemental brief, defendant contends that his statements
should have been suppressed based on police misconduct and “fruit of the poisonous tree.”
Defendant contends that the manner of the interviews, in “rapid succession,” and the impropriety
of a pre-Miranda interrogation tainted any subsequent written and taped statements. However,
we are bound by the lower court record. The only testimony presented regarding pre-Miranda
conversations was given by a police officer. The officer testified that they engaged in small talk,
and Miranda rights were given when the nature of the conversation turned to the shooting.
Defendant did not testify to the contrary, and defendant’s version of the interrogations as
presented in the narrative form of the brief are not supported by the testimony or the trial court’s
factual findings. Defendant’s reliance on Missouri v Seibert, ___ US ___; 124 S Ct 2601; 159 L
Ed 2d 643 (2004) is misplaced. In Seibert, supra, the police knowingly and purposefully
admitted to engaging in “question first” tactics where Miranda warnings were administered only
after obtaining a confession from the defendant. The objective of the confession first tactic is to
render Miranda warnings ineffective by waiting to give them until after the suspect has already
confessed. However, in the present case, we have no record evidence to support the conclusion
that police administered Miranda warnings only after defendant confessed. Defendant did not
testify that he was only given the rights after confessing. Accordingly, defendant’s attempt to fit
within the parameters established by Seibert is without merit.
4
In any event, the question of a defendant’s intent presents a question of fact to be inferred from
the circumstances by the trier of fact. People v Tower, 215 Mich App 318, 322; 544 NW2d 752
(1996). Where there is credible evidence that both supports and negates the intent requirement, a
factual question exists that is left for resolution by the jury. People v Neal, 201 Mich App 650,
655; 506 NW2d 618 (1993). Because of the difficulty of proving a defendant’s state of mind,
minimal circumstantial evidence is sufficient. People v McRunels, 237 Mich App 168, 181; 603
NW2d 95 (1999). In the present case, defendant indicated that he came to Adrian to visit his
son. After failing to meet his son, defendant drove in the area looking for Bradley with whom
his relatives were in a dispute. He also telephoned McMillian and inquired about Bradley’s
(continued…)
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Defendant next alleges that the trial court erred in refusing to provide a jury instruction
regarding self-defense. We disagree. Jury instructions are reviewed in their entirety to
determine if error requiring reversal occurred. People v Canales, 243 Mich App 571, 574; 624
NW2d 439 (2000). Jury instructions must include the charged offense elements and must not
exclude material issues, defenses, and theories if the evidence supports them. Id.
“The killing of another person in self-defense is justifiable homicide only if the defendant
honestly and reasonably believes his life is in imminent danger or that there is a threat of serious
bodily harm and that it is necessary to exercise deadly force to prevent such harm to himself.”
People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002). The first requirement of a claim of
self-defense or defense of others is that a defendant act in response to an assault. Detroit v
Smith, 235 Mich App 235, 238; 597 NW2d 247 (1999). To act in lawful self-defense when a
defendant uses deadly force, the defendant must have an honest and reasonable belief of the
danger of serious bodily harm or death and may only employ the amount of force necessary to
defend himself. People v Heflin, 434 Mich 482, 507-509; 456 NW2d 10 (1990). To satisfy the
necessary element of self-defense, the defendant must try to avoid the use of deadly force if he
can safely do so by applying nondeadly force or utilizing an avenue of retreat. Riddle, supra at
119.
As an initial matter, we note that defendant’s testimony does not support the theory of
self defense. Defendant testified that he drove the vehicle with his cousin and two uncles as
passengers. He testified that his passengers in the vehicle possessed weapons, but defendant
denied that he had or fired a weapon. Based on this testimony, the theory of self-defense was
inapplicable because defendant did not perform any act in defense of himself or others.
Moreover, defendant did not testify that he had any reasonable belief of imminent danger or
serious bodily harm.5 While defendant testified that he “feared” Bradley, there was no attempt to
determine whether the driver of the vehicle was in fact Bradley. Without any testimony
regarding any acts of the victim, defendant’s testimony, that he was merely the driver of the
vehicle without knowledge of any plan to shoot the victim, does not support a self defense
theory.
Even assuming that defendant had performed an act in furtherance of self defense, the
evidence admitted at trial failed to support the self defense instruction. Defendant alleged that
the testimony regarding the location of the first gunshot and a gunshot hole in his van entitled
him to a self defense instruction. However, there was no evidence that the victim had a gun and
fired it into the van. It was equally as plausible that the hole in the van occurred before the
shooting or was caused by defendant’s relatives. There was no testimony to establish an assault
(…continued)
whereabouts. Defendant knew that his relatives were angry over money taken from relatives and
carried weapons. Although defendant indicated that there was no plan to shoot Bradley, the facts
and circumstances of the case presented a question for the trier of fact regarding the nature of the
visit to Adrian, Michigan. Accordingly, the challenge to the premeditation and deliberation
evidence at the preliminary examination is without merit.
5
Defendant’s uncles and cousins did not testify at trial. Defendant does not allege or provide
any documentary evidence from trial to indicate that his relatives acted in lawful self defense and
that defendant has standing to assert their right to act in self defense.
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by the victim, Smith, supra, and defendant did not exercise his duty to pursue an avenue of
retreat. Riddle, supra. After the first gunshot, defendant as the driver of the van could have fled
the scene, but remained while he heard “all types of gunshots.” Accordingly, the trial court did
not err in denying the request for a self-defense instruction where the evidence did not support
the instruction. Canales, supra.
Lastly, defendant alleges that he was denied a fair and impartial trial based on
prosecutorial misconduct. We disagree. A claim of prosecutorial misconduct is reviewed de
novo. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001). The test of
prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v
Watson, 245 Mich app 572, 586; 629 NW2d 411 (2001). We decide issues of prosecutorial
misconduct on a case by case basis, reviewing the pertinent portion of the record and examining
the prosecutor’s remarks in context. People v Noble, 238 Mich app 647, 660; 608 NW2d 123
(1999). The remarks must be read as a whole and evaluated in light of defense arguments and
the relationship to the evidence admitted at trial. People v Schutte, 240 Mich App 713, 721; 613
NW2d 370 (2000).
Review of the record reveals that the defense raised the issue of race in closing argument,
although race never had any bearing on the crime or the circumstances surrounding the crime.
The prosecutor began to respond to the issue in closing argument. Defense counsel objected to
the statement and did not request a curative instruction or a mistrial.6 The trial court essentially
sustained the objection by stating that the comment was “inappropriate at this time.” Because
the prosecutor was responding to an issue raised by the defense and the discussion was limited in
duration and scope, the comment does not require reversal. See People v Jones, 468 Mich 345,
353; 662 NW2d 376 (2003). The trial court instructed the jurors that the arguments of the
attorneys were not evidence. Accordingly, defendant’s challenge is without merit.
Affirmed.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
6
A defendant may not acquiesce to the trial court’s handling of a request, then raise objection as
error before the appellate court. People v Fetterley, 229 Mich App 511, 520; 583 NW2d 199
(1998).
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