PEOPLE OF MI V MICHAEL BANKS MORGAN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2005
Plaintiff-Appellee,
v
No. 250437
Wayne Circuit Court
LC No. 03-001476-02
MICHAEL BANKS MORGAN,
Defendant-Appellant.
Before: Neff, P.J., and Cooper and R.S. Gribbs*, JJ.
PER CURIAM.
Defendant Michael Banks Morgan appeals as of right his jury trial convictions of firstdegree felony-murder,1 assault with intent to rob while armed,2 and conspiracy to assault with
intent to rob while armed.3 Defendant was sentenced to concurrent terms of life imprisonment
for his murder conviction and thirty-seven years and six months to one hundred years’ each for
his assault and conspiracy convictions. We affirm.
I. Factual Background
Defendant’s convictions arose from an attempted robbery and the subsequent murder of
Michael Connor that occurred during the robbery. The prosecution presented evidence that
defendant was a drug dealer who claimed that Connor owed him a large sum of money.
Jeremiah Brooks testified that defendant, who was on a tether at the time, arranged for Eladio
Nino and Patrick Bates to take money and drugs from Connor at his home. Because Brooks was
working off a debt he owed defendant, he was enlisted as the lookout. Brooks testified that
defendant assured him that the robbery would not be reported. Brooks testified that defendant
was aware that one of the men was carrying a taser and offered them a gun as well. Defendant
instructed the men to wait until a Taurus left Connor’s driveway before entering.4
1
MCL 750.316(1)(b).
2
MCL 750.89.
3
Id.
4
The Taurus was actually a Sable belonging to Connor’s mother.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1-
At approximately 7:00 a.m. on March 23, 2001, Nino, Bates, and Brooks parked Nino’s
black SUV at the end of Connor’s driveway. All three men were armed.5 After the Sable left the
driveway, Nino attempted to enter the front door while Bates and Brooks went to the side door.
Finding the door locked, Brooks knocked. When Connor answered, Bates punched Connor in
the face and chased him into the house. Bates struggled with Connor, hitting him on the head
with his gun while Connor fought back with a small souvenir baseball bat. Ultimately, Bates
shot Connor in the head. Bates and Brooks then ran back to the vehicle, followed by Connor’s
father and brother who were awakened by the gunshot. The men were able to reenter the SUV
and drive away.
After parking the SUV at an apartment complex, burying their weapons in a field and
hiding behind a nearby party store, the men called defendant for a ride. As defendant could not
leave his home, he sent his girlfriend, Dina Kellums, to pick them up. About two to four weeks
later, defendant accompanied the others to retrieve the buried weapons. Upon Nino’s instruction,
Brooks threw the shells and a bullet casing from the murder weapon over a bridge.
Subsequently, defendant destroyed the murder weapon.6 Nineteen months passed before any of
the men were arrested for their role in the attempted robbery and murder of Connor.
II. Insufficient Evidence
We first address defendant’s claim that there was insufficient evidence to sustain his
conviction of felony murder. Defendant contends that because the homicide was outside the
scope of the common criminal plan and was the unforeseen and unanticipated result of an
attempted robbery, there was insufficient evidence to establish the requisite intent for felony
murder. Viewed in a light most favorable to the prosecution, there was sufficient evidence
presented to justify a rational trier of fact in finding that the element of intent was proven beyond
a reasonable doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
Contrary to defendant's argument, there was sufficient evidence to sustain defendant's
convictions of felony murder on an aiding and abetting theory. The requisite intent for a
conviction as an aider and abettor is that necessary to be convicted as a principal. People v
Mass, 464 Mich 615, 628; 628 NW2d 540 (2001). The prosecution must show the intent to kill,
to do great bodily harm, or to create a very high risk of death or great bodily harm with
knowledge that death or great bodily harm was the probable result, i.e., malice. People v
Carines, 460 Mich 750, 758; 597 NW2d 130 (1999). An aider and abettor’s state of mind may
be inferred from all the facts and circumstances, including a close association between the
defendant and the principal, the defendant’s participation in the planning or execution of the
crime, and evidence of flight after the crime. Id. at 757-758. A defendant’s knowledge that an
accomplice was armed during the commission of an armed robbery is sufficient for an inference
of malice. People v Turner, 213 Mich App 558, 567, 572-573; 540 NW2d 728 (1995), overruled
in part on other grounds Mass, supra at 627-628.
5
Brooks testified that one of the weapons used by the men belonged to defendant.
6
The facts surrounding the actual attempted robbery and murder and the subsequent cover-up are
not in dispute.
-2-
There was ample evidence of defendant’s involvement in the events leading to the
shooting as well as the cover-up. The prosecution presented evidence that defendant planned
and organized a robbery in which three men, armed with guns, confronted Connor at his home to
steal money and drugs from him. According to Brooks’ testimony, during the planning,
defendant indicated that he had a gun that could be used if needed and Brooks recognized one of
the guns used in the robbery as one defendant had “showed off” a year earlier at his home. The
jury could infer that defendant knew that the men would be armed and that he supplied at least
one of the guns. There was also evidence that defendant participated in the cover-up after the
shooting, including grinding up the murder weapon on a grinder in defendant’s garage. The
evidence was sufficient to establish that defendant intentionally set in motion a force likely to
cause death or great bodily harm and, therefore, had the requisite malice to be convicted of
felony murder. Carines, supra at 759-760; Turner, supra at 572-573.
III. Right of Confrontation
Defendant contends that the trial court improperly admitted statements made by Bates to
Michael Broome regarding his role in the attempted robbery and murder. The statements were
admitted pursuant to MRE 804(b)(3) over defendant’s pretrial objection. In these statements,
Bates implicated defendant in planning the attempted robbery that led to the murder of Connor.
Defendant asserts that the trial court improperly admitted the statement pursuant to People v
Poole,7 as that case was overruled by Crawford v Washington8 and several other previous United
States Supreme Court cases.9 Defendant argues that even if Poole is binding precedent, the
statement would be inadmissible because it lacks adequate indicia of reliability. Defendant
alleges that the trial court failed to make this threshold determination before placing the issue
before the jury. Without this evidence, defendant contends that the only charge of which he
could be convicted is accessory after the fact,10 an offense with which the prosecution failed to
charge defendant. We disagree.
“We review a trial court’s decision to admit evidence for an abuse of discretion and
underlying questions of law de novo.”11 MRE 804(b)(3) provides that a statement is excluded
from the hearsay rule if the declarant is unavailable and the statement “so far tended to subject
7
People v Poole, 444 Mich 151, 153-154; 506 NW2d 505 (1993).
8
Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).
9
Defendant asserts that Poole was overruled by Lilly v Virginia, 527 US 116; 119 S Ct 1887;
144 L Ed 2d 117 (1999), and Williamson v United States, 512 US 594; 114S Ct 2431; 129 L Ed
2d 476 (1994).
10
MCL 767.67. Pursuant to this section, “Any number of accessories after the fact . . . may be
charged with substantive felonies in the same indictment, notwithstanding the principal felon
shall not be included in the same indictment, or shall not be in custody or amenable to justice.”
Id. Accessory after the fact is a common-law offense, punishable pursuant to MCL 750.505, in
which the offender, “‘with knowledge of the other’s guilt, renders assistance to a felon in the
effort to hinder his detection, arrest, trial or punishment.’” People v Lucas, 402 Mich 302, 304;
262 NW2d 662 (1978), quoting Perkins, Criminal Law (2d ed), p 667.
11
People v Shepherd, 263 Mich App 665, 667; 689 NW2d 721 (2004).
-3-
the declarant to civil or criminal liability . . . that a reasonable person in the declarant’s position
would not have made the statement unless believing it to be true.”
Brooks testified that he cooperated with the police following his arrest to gather evidence
against his coparticipants. Brooks telephoned Bates approximately five times attempting to elicit
incriminating statements under the guise of blackmailing Bates for his silence. Bates told
Broome, an old friend and the brother of Bates’ girlfriend, that he was being blackmailed and
made several statements indicating that he shot Connor and implicating defendant in the
planning of the attempted robbery.12 Bates was also charged in connection with the attempted
robbery and murder of Connor and was, therefore, unavailable to testify at defendant’s trial
because he exercised his right against self-incrimination.
We first reject defendant’s contention that the Michigan Supreme Court’s decision in
Poole has been overruled by United States Supreme Court precedent. Crawford v Washington
prohibits, as violative of the Confrontation Clause, the admission of testimonial statements of
unavailable witnesses when there’s been no opportunity for cross-examination.13 To the extent
that Poole could be applied to testimonial statements, defendant correctly asserts that it has been
partially overruled by Crawford. However, where the declarant’s statements are nontestimonial
hearsay, Poole remains in effect.14 Furthermore, this Court has specifically held that Williamson
12
Broome testified regarding Bates’ statements implicating defendant as follows:
Well, Patrick Bates had told me how they went to go rob this kid and that things
didn’t turn out the way they expected and the kid ended up the [sic] getting killed.
***
He had told me that Michael Morgan had set it up to where him, one of his
friends, well, Patrick Bates, Eladio Nino and one of Morgan’s friends would go
rob this kid. From there, they had went, the kid wouldn’t give up the money or
anything and [ Bates] and the kid ended up struggling and the kid ended up
getting shot.
***
That [ Morgan] was going to send his friend with Eladio Nino and Patrick Bates
because he couldn’t go with them because he was on house arrest or on tether
[sic]. So he sent his friend because he knew the house and I guess he knew the
kid, sir.
13
Crawford, supra at 1363-1367.
14
Id. at 1374. When analyzing nontestimonial hearsay, this Court recently found that:
Crawford left [Ohio v] Roberts[, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597
(1980),] intact regarding the admissibility of nontestimonial statements. The
admission of [challenged] statements as substantive evidence does not violate the
Confrontation Clause if the prosecution can establish that [the declarant] was
(continued…)
-4-
v United States and Lilly v Virginia did not overrule Poole.15 Although the Michigan Supreme
Court has never addressed the issue specifically, it has continued to rely on Poole.16
Here, Bates told a friend about his role in a murder. Bates made these statements more
than a year after the murder when a coparticipant began blackmailing him. These were not
statements made to the authorities or made by the victim. They were made by one criminal
participant to someone completely uninvolved in the offense. Bates would not have anticipated
that his statements would later be used against him at trial. In fact, Broome testified that he only
implicated Bates to the police to avoid prosecution following his own arrest on a completely
unrelated drug charge.17 Accordingly, we find that Bates’ statements to Broome were not
testimonial under any definition of the term.
Because Bates’ statements are nontestimonial, we must determine if they were properly
admitted pursuant to Ohio v Roberts, and the Michigan cases of Poole and Washington. The
admission of the statement as substantive evidence does not violate the Confrontation Clause if
Bates was unavailable as a witness and his statement bore adequate indicia of reliability.
Washington, supra at 671. In Poole, the Michigan Supreme Court provided the following
guidance concerning this inquiry:
In evaluating whether a statement against penal interest that inculpates a
person in addition to the declarant bears sufficient indicia of reliability to allow it
to be admitted as substantive evidence against the other person, courts must
evaluate the circumstances surrounding the making of the statement as well as its
content.
The presence of the following factors would favor admission of such a
statement: whether the statement was (1) voluntarily given, (2) made
contemporaneously with the events referenced, (3) made to family, friends,
(…continued)
unavailable as a witness and that the statements bore adequate indicia of
reliability, or if the statements fell within a firmly rooted hearsay exception.
[Shepherd, supra at 676, citing People v Washington, 468 Mich 667, 671-672;
664 NW2d 203 (2003).]
Our application of Ohio v Roberts to Michigan cases based on the Michigan Rules of Evidence is
controlled by the Michigan Supreme Court’s analysis in Poole and Washington.
15
People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000) (because federal
interpretations of federal rules of evidence are merely persuasive in interpreting their local
counterparts, Williamson does not bind Michigan courts), and 558-559, citing Texas v Brown,
460 US 730, 737; 103 S Ct 1535; 75 L Ed 2d 502 (1983) (because plurality opinions are not
binding, Poole remains intact following Lilly).
16
See People v Deshazo, 469 Mich 1044; 679 NW2d 69 (2004); Washington, supra.
17
Broome testified that he was about to enter the military when he was arrested for selling
ecstasy. He immediately told the police about Bates’, and the other participants’, role in the
murder to avoid a charge that could affect his career.
-5-
colleagues, or confederates—that is, to someone to whom the declarant would
likely speak the truth, and (4) uttered spontaneously at the initiation of the
declarant and without prompting or inquiry by the listener.
On the other hand, the presence of the following factors would favor a
finding of inadmissibility: whether the statement (1) was made to law
enforcement officers or at the prompting or inquiry of the listener, (2) minimizes
the role or responsibility of the declarant or shifts blame to the accomplice, (3)
was made to avenge the declarant or to curry favor, and (4) whether the declarant
had a motive to lie or distort the truth.
Courts should also consider any other circumstance bearing on the
reliability of the statement at issue. See, generally, United States v Layton, 855
F2d 1388, 1404-1406 (CA 9, 1988). While the foregoing factors are not
exclusive, and the presence or absence of a particular factor is not decisive, the
totality of the circumstances must indicate that the statement is sufficiently
reliable to allow its admission as substantive evidence although the defendant is
unable to cross-examine the declarant.[18]
In this case, Bates’ statements meet three of the four Poole factors in favor of
admissibility. Bates voluntarily made the challenged statements. He made the statements to
Broome, a friend and the brother of his girlfriend—someone to whom he would likely speak the
truth. The statements were not made in response to prompting or inquiry by Broome.19
Although the statements were not contemporaneous with the charged offense, the
circumstances do not otherwise support a finding of inadmissibility. There is no suggestion that
Bates had a motive to lie or distort the truth. There also is no indication that he made the
statements to avenge himself or curry favor. Bates did not make the statements to law
enforcement officers, and he did not minimize his role or responsibility. Although Bates
implicated Nino and defendant by name as coparticipants in the planning and implementation of
the attempted robbery, he admitted that he shot Connor in the head. Given the totality of the
circumstances, we find the statement sufficiently reliable for admission.
Even if the admission of the statement was error, as the dissent concludes, we do not
agree that Brooks’ testimony was “highly impeached” and that the jury might not have convicted
defendant absent the hearsay testimony at issue. Brooks participated in the robbery and testified
at length concerning the details of the planned robbery, the shooting, and defendant’s
involvement. Brooks’ testimony was corroborated by physical evidence, including the souvenir
baseball bat found at the murder scene, Brooks’ hat found in the field where he discarded it after
the murder and, perhaps most telling, the recovery of one spent shell casing and five bullets from
18
Poole, supra at 165. See also Washington, supra at 672-673; Shepherd, supra at 676-677.
19
Defendant accurately points out that Broome asked Bates about some phone calls that
appeared to upset Bates, after which Bates made statements concerning the robbery and murder,
but Bates nonetheless talked about the shooting of his own accord and not in response to any
direct inquiry.
-6-
under the bridge where Brooks said they had been thrown. In addition, Brooks’ testimony was
corroborated, in part, by defendant’s former girlfriend, Dina Kellums’ testimony that she picked
up the three perpetrators after the murder and drove them back to defendant’s home.
As plaintiff argues, the hearsay evidence of Bates’ statements to Broome were
cumulative of the corroborated testimony of Brooks, and, further, defendant’s own incriminating
statements demonstrated his guilt. We conclude that any error in the admission of Bates’
statements to Broome was harmless.20
IV. Instructional Errors
Defendant asserts that the trial court erred in failing to give an imperfect self-defense
instruction and gave an erroneous accessory-after-the-fact instruction. Generally, we review
claims of instructional error de novo.21 However, because defendant failed to request an
imperfect self-defense instruction or raise an objection to the instructions22 on either of the
grounds argued on appeal, our review is limited to plain error affecting defendant’s substantial
rights.23 It is the function of the trial court to clearly present the case to the jury and instruct
them on the applicable law.24 “Jury instructions must include all the elements of the charged
offense and must not exclude material issues, defenses, and theories if the evidence supports
them.”25 Jury instructions must be read as a whole to determine if the trial court committed error
requiring reversal.26 The instructions need not be perfect, but must fairly present the issues and
sufficiently protect the defendant’s rights.27
A. Accessory After the Fact
Defendant challenges the manner in which the trial court gave the requested accessoryafter-the-fact instruction. Defendant contends that the trial court should have clearly instructed
the jury that accessory after the fact is a separate and distinct offense from any offense
prosecuted on an aiding and abetting theory. Defendant asserts that the instructions as given
20
We acknowledge that there is a difference of opinion in this Court regarding the standard to be
applied to a harmless error analysis of preserved constitutional error. See People v Shepherd,
263 Mich App 665; 689 NW2d 721 (2004). However, this difference is not germane to the
outcome of this case.
21
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002).
22
In fact, defense counsel indicated that he was satisfied with the instructions as given.
23
Carines, supra at 763-764.
24
People v Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001), aff’d 468 Mich 272 (2003).
25
People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000).
26
Katt, supra at 310.
27
Id., quoting Canales, supra at 574.
-7-
indicate that accessory after the fact is merely an alternative method of ascertaining guilt on an
aiding and abetting theory.28
Defendant correctly asserts that accessory after the fact is separate and distinct from
aiding and abetting. A person may not be convicted of aiding and abetting in the commission of
a crime based on his conduct as an accessory after the fact.29 In People v Lucas, the Michigan
Supreme Court found that the language “concerned in the commission of an offense” in MCL
767.39 precluded from aiding and abetting any acts of assistance amounting to accessory after
the fact.30
This case is distinguishable from Lucas because the trial court did not affirmatively
instruct the jury that accessory after the fact was an alternative method of establishing that a
28
The trial court instructed the jury as follows:
To prove this charge the Prosecution must prove the following elements
beyond a reasonable doubt. And this goes to aiding and abetting. First that the
alleged crime was actually committed either by the defendant or someone else. It
does not matter whether anyone else was convicted of that crime.
Second that before or during the crime, the defendant did something in the
commission or to assist in the commission of that crime, and third the defendant
must have intended the commission of the crime alleged or must have known that
the other person intended its commission at the time of giving the assistance.
Ladies and gentlemen, the court will define for you accessory after the fact
because there is testimony that may give you reason to consider accessory after
the fact and the parties have asked for this instruction. The court is going to give
you a definition at this point.
An accessory after the fact is defined as follows: Access [sic] after the fact
is a person who with knowledge of the other persons [sic] guilt gives assistance to
a felon in an effort to hinder the felons [sic] detection, arrest, trial or punishment.
Now ladies and gentlemen as far as mere association. Mere association
even with the knowledge that a crime was planned or was committed is
insufficient to establish the defendant Mr. Morgan aided or assisted in the
commission of that crime.
Now it does not matter how much help, advice or encouragement Morgan
gave; however, you must decide whether Mr. Morgan intended to help another
commit the crime and whether his help advice [sic] or encouragement actually did
help advise [sic] or encourage the crime.
29
Lucas, supra at 304-305, citing People v Wilborn, 57 Mich App 277, 282; 225 NW2d 727
(1975).
30
Id. at 305.
-8-
defendant aided and abetted in the commission of a crime. Here, after rejecting defendant’s
confusing proposed instructions on aiding and abetting, the trial court properly instructed the jury
of the prosecutor’s burden of proof: that defendant aided or abetted before or during the crime.
This instruction was not modified nor made confusing by defining accessory after the fact. In
light of the evidence of defendant’s conduct during and after the crime, we cannot conclude that
he has demonstrated plain error affecting his substantial rights.
B. Imperfect Self-Defense
Defendant also contends that he was denied a fair trial because the trial court did not sua
sponte instruct the jury on the imperfect self-defense doctrine. Defendant claims that Bates’
shooting of Connor qualified for an imperfect self-defense instruction, which would lower
defendant’s culpability and require a conviction for manslaughter, rather than felony-murder.
A successful imperfect self-defense theory can mitigate second-degree murder to
voluntary manslaughter by negating the malice element.31 This doctrine applies only if (1) the
defendant would have been entitled to invoke lawful self-defense had he not been the initial
aggressor, and (2) the defendant did not use more force than necessary, even if under an honest
and reasonable belief that his life was in danger.32
A rational view of the evidence does not support the imperfect self-defense doctrine.
Bates shot Connor because Connor hit him with a miniature souvenir baseball bat after Bates had
punched him, invaded his home, chased him through the house, ordered him onto the ground at
gunpoint, and hit him with a gun. Bates made no attempt to retreat and used more force than
necessary to repel Connor’s nonlethal attack. Furthermore, “a trial court is not required to
present an instruction of the defendant’s theory to the jury unless the defendant makes such a
request.”33 Because defendant failed to request this instruction and the instruction is not
supported by the evidence, we find no plain error.
Affirmed.
/s/ Janet T. Neff
/s/ Roman S. Gribbs
31
People v Kemp, 202 Mich App 318, 323-324; 508 NW2d 184 (1993). The Michigan Supreme
Court has neither recognized nor rejected imperfect self-defense as a theory that would reduce
first-degree murder to manslaughter. People v Posey, 459 Mich 960; 590 NW2d 577 (1999).
32
Kemp, supra at 325 & n 2.
33
People v Mills, 450 Mich 61, 81; 537 NW2d 909 (1995), mod on other grounds 450 Mich
1212 (1995).
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
