PEOPLE OF MI V HORACE TERTAR CLARK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 29, 2005
Plaintiff-Appellee,
v
No. 256190
Wayne Circuit Court
LC No. 03-012292-01
DONMISCE CLARK,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 256192
Wayne Circuit Court
LC No. 03-013613-01
ARTHUR SUMERLIN, III,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
No. 256193
Wayne Circuit Court
LC No. 03-012294-01
v
HORACE TERTAR CLARK,
Defendant-Appellant.
Before: Murphy, P.J., and Sawyer and Meter, JJ.
PER CURIAM.
-1-
In these consolidated appeals, defendants were convicted of various charges arising out
of multiple shootings at a Detroit drug house. Two victims died from gunshot wounds, and a
third individual survived after being shot in the head.1 Defendants were tried jointly before a
single jury. Defendants Donmisce Clark and Horace Clark were each convicted of two counts
of first-degree premeditated murder, MCL 750.316(1)(a), two counts of first-degree felony
murder, MCL 750.316(1)(b), and one count of assault with intent to commit murder, MCL
750.83. They were both sentenced to mandatory life imprisonment without the possibility of
parole for the first-degree premeditated murder convictions, they were not sentenced for the
felony-murder convictions ostensibly because of double jeopardy concerns,2 and they received
15 to 30 years’ imprisonment for their assault convictions. Defendant Sumerlin was similarly
convicted and sentenced; however, he was additionally found guilty of armed robbery, MCL
750.529, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the
commission of a felony, MCL 750.227b. He was sentenced to 15 to 30 years’ imprisonment for
the armed robbery conviction, 1 to 5 years’ imprisonment for the felon in possession conviction,
and 2 years’ imprisonment (consecutive) for the felony-firearm conviction. Defendants appeal
as of right. We affirm.
I. Defendant Donmisce Clark
Three of the four appellate arguments presented by defendant3 relate to the United States
Supreme Court’s decision in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d
177 (2004), in which the high Court held that an out-of-court statement by a witness that is
testimonial in nature is inadmissible under the Confrontation Clause, US Const, Am VI, where
the witness is unavailable to testify and the defendant did not have a prior opportunity to crossexamine the witness, regardless of whether the statement is deemed inherently reliable.
Defendant first argues that the trial court violated his constitutional rights under the
Confrontation Clause by admitting codefendant Sumerlin’s out-of-court “testimonial” statement
made to police that placed defendant at the murder scene, where Sumerlin was unavailable as he
had exercised his Fifth Amendment right not to testify, and where defendant’s counsel had no
opportunity to cross-examine Sumerlin regarding the statement. Defendant contends that this
1
The two murder victims were Pia Stanton and Corey Brown, and the surviving victim is Jovan
Stanton.
2
The judgments of sentence for all three defendants reflect that the felony murder convictions
were vacated. This Court has stated, “Where dual convictions of first-degree premeditated
murder and first-degree felony murder arise out of the death of a single victim, the dual
convictions violate double jeopardy. The proper remedy is to modify the judgment of conviction
and sentence to specify that defendant’s conviction is for one count and one sentence of firstdegree murder supported by two theories: premeditated murder and felony murder.” People v
Adams, 245 Mich App 226, 241-242; 627 NW2d 623 (2001) (citations omitted). Here, the
judgments of sentence must be corrected consistent with Adams.
3
Our reference to “defendant” shall pertain to the particular defendant listed in the designated
heading as structured by this opinion. For example, Donmisce Clark is the current subject of our
analysis, and thus the reference to defendant concerns Donmisce Clark.
-2-
was the crucial evidence placing him at the scene of the murders, and placing him there at about
the time the criminal offenses were committed. Defendant’s second argument is that the trial
court erred in refusing to sever his trial or to seat a separate jury in light of the Crawford
predicament. Defendant’s third appellate issue is that trial counsel was ineffective for failing to
independently and timely move to sever the trials or, alternatively, for failing to request a
separate jury given the holding in Crawford.4 Defendant’s fourth appellate argument is that the
trial court erred in denying his motion for directed verdict, where there was insufficient evidence
to prove beyond a reasonable doubt that he was a principal or an aider and abettor in the murders
and assault.
Codefendant Sumerlin spoke with police, and a written statement, containing the
interrogating officer’s questions and Sumerlin’s responses, was read to the jury. In the
statement, Sumerlin indicated that he, Horace Clark, and defendant went to the home where the
crimes were committed on the day of the murders in order to purchase some drugs. According to
Sumerlin, when the three defendants arrived at the home around 2:00 p.m., an African-American
male was just leaving and there were two other men in the home. These two individuals were
tall, with one having a light complexion and the other a medium complexion. Sumerlin stated
that the three defendants bought three ounces of drugs costing between $1,900 and $2,000, and
then the three left the home. Sumerlin asserted that neither he, Horace Clark, nor defendant had
a gun when they went to the home, and he denied that any of the three defendants shot the
victims.
We first find that Crawford bars admission of Sumerlin’s statement in the prosecution’s
case against defendant; the jury should not have been permitted to hear the officer’s testimony
regarding the statement as to defendant. In Crawford, supra at 42, the Supreme Court
commenced its analysis by stating:
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” We have held that this bedrock procedural guarantee
applies to both federal and state prosecutions. Pointer v Texas, 380 US 400, 406;
85 S Ct 1065; 13 L Ed 2d 923 (1965). [Alteration and omission in original.]
The Supreme Court then undertook an extensive examination of the historical roots of the
Confrontation Clause. The Court proceeded to find as follows:
An off-hand, overheard remark might be unreliable evidence and thus a
good candidate for exclusion under hearsay rules, but it bears little resemblance to
the civil-law abuses the Confrontation Clause targeted. On the other hand, ex
parte examinations might sometimes be admissible under modern hearsay rules,
but the Framers certainly would not have condoned them.
4
Defendant also claims that counsel was ineffective for failing to object to the trial court’s
failure to read CJI2d 3.1, which includes the direction that the jury cannot allow sympathy or
prejudice to influence its decision.
-3-
The test of the Confrontation Clause reflects this focus. It applies to
“witnesses” against the accused – in other words, those who “bear testimony.”
“Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.” An accuser who makes a
formal statement to government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not. The constitutional text,
like the history underlying the common-law right of confrontation, thus reflects an
especially acute concern with a specific type of out-of-court statement.
Various formulations of this core class of “testimonial” statements exist:
“ex parte in-court testimony or its functional equivalent – that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially[.] . . . Statements taken by police officers in the
course of interrogations are also testimonial under even a narrow standard. Police
interrogations bear a striking resemblance to examinations by justices of the peace
in England. The statements are not sworn testimony, but the absence of oath was
not dispositive. [Crawford, supra at 51-52 (omission and emphasis in original;
citations omitted).]
The Crawford Court also concluded that the Framers “would not have allowed admission
of testimonial statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 53-54. The
Court rejected case law that had carved out a “reliability” test that allowed admission of
testimonial statements based on various evidentiary rules despite the lack of an opportunity to
cross-examine the unavailable declarant. Id. at 61-68, abrogating Ohio v Roberts, 448 US 56;
100 S Ct 2531; 65 L Ed 2d 597 (1980).
Crawford involved damaging and incriminating statements made by the petitioner’s wife
to investigating detectives. The petitioner’s wife did not testify at trial on the basis of the state of
Washington’s marital privilege, although the law did permit the wife’s out-of-court statement to
be used at trial if admissible under a hearsay exception. The Washington Supreme Court ruled
that the statement was admissible because, although it did not fall under a firmly rooted hearsay
exception, it bore guarantees of trustworthiness. The United States Supreme Court reversed,
holding that use of the wife’s statement against the petitioner violated the Confrontation Clause.
Crawford, supra at 68-69. The Court concluded, “Where testimonial statements are at issue, the
only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation.” Id.
Here, whether by severance, separate juries, or an order precluding admission of
Sumerlin’s statement, the jury should not have been permitted to hear the statement relative to
the prosecution’s case against defendant, where Sumerlin was unavailable to testify pursuant to
his Fifth Amendment right against self-incrimination, and where defendant had no prior
opportunity to cross-examine Sumerlin. The statement to police was clearly testimonial in nature
-4-
under Crawford, and use of the statement by the prosecution violated defendant’s rights under
the Sixth Amendment’s Confrontation Clause.5
Having found Sumerlin’s statement inadmissible against defendant, we nonetheless hold
that reversal is not warranted as any error was harmless beyond a reasonable doubt. In People v
Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005), a case also addressing Crawford and an
assumed violation of the Confrontation Clause, our Supreme Court stated that any “alleged error
was not a structural defect requiring automatic reversal.” Rather, the question is whether the
alleged constitutional error was harmless beyond a reasonable doubt. Id. The Court ruled:
Harmless error analysis applies to claims concerning Confrontation Clause
errors[.] But to safeguard the jury trial guarantee, a reviewing court must
“conduct a thorough examination of the record” in order to evaluate whether it is
clear, beyond a reasonable doubt, that the jury verdict would have been the same
absent the error. [Id. at 348 (citations omitted).]
Here, Sumerlin’s statement does not indicate or suggest in any fashion that defendant
committed the murders and the assault, or that he aided and abetted in the crimes. Indeed,
Sumerlin’s statement expressly contends that defendant had nothing to do with the crimes, and it
provides information implicitly suggesting that other individuals at the house may have been
involved with the commission of the crimes. Defendant argues that his defense was
misidentification and lack of presence at the crime scene, and thus Sumerlin’s statement placing
him at the scene of the crimes, and placing him there at about the time the crimes were
committed, undercut his defense. There was, however, other evidence placing defendant in the
house. The surviving assault victim, Jovan Stanton, identified defendant as one of the
perpetrators in a photographic lineup. She also identified defendant at trial as the man who was
standing next to her aunt, Pia Stanton, who was murdered shortly thereafter, and as the individual
who directed that Jovan and the others be taken to the basement. And although Stanton’s
testimony and identifications were somewhat impeached, a young witness who was also at the
crime scene, Armanda, also identified defendant at trial as one of the perpetrators. Moreover,
there was evidence presented that defendant and Horace Clark were brothers, and Katrina
Brown, who knew all three defendants and had once dated Horace Clark, testified that the three
defendants were together at her home on the day of the crime and then left together, shortly after
1:30 p.m. or so, following a call from a woman who spoke with defendant. The 911 call to
police by Jovan Stanton was placed at 2:21 p.m. Thus, there was evidence that all three
5
We note the decision in Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476
(1968), in which the Supreme Court held that the admission of a codefendant’s confession that
implicated the defendant in a joint trial violated the Confrontation Clause and required reversal
where the codefendant was unavailable and not subject to cross-examination, despite the fact that
the trial court gave a clear, concise, and understandable instruction that the confession could only
be used against the codefendant and not the defendant. Bruton further supports our ruling,
especially considering that the declarant here was a codefendant. But we do not view Bruton as
precluding application of the harmless-error rule in the case at bar. People v Harris, 201 Mich
App 147, 150; 505 NW2d 889 (1993)(Bruton violation does not require automatic reversal); see
also discussion of People v Shepherd, 472 Mich 343; 697 NW2d 144 (2005), infra.
-5-
defendants were together shortly before the crimes were committed. Finally, the trial court
adamantly instructed the jury that it could only consider Sumerlin’s statement relative to
rendering a verdict in the prosecutor’s case against Sumerlin and not Horace Clark or defendant;
the statement could not be used against defendant in any form or fashion. Jurors are presumed
to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). In
light of the evidence other than Sumerlin’s statement, and considering the jury instruction, we
conclude that any error was harmless beyond a reasonable doubt. We are confident that the jury
verdict would have been the same absent the error.
With respect to defendant’s arguments that the trial court erred in refusing to sever his
trial or to seat a separate jury in light of Crawford, and that counsel was ineffective for failing to
timely seek severance or a separate jury, we again find that the lack of prejudice precludes us
from reversing the verdict.6 A trial court’s decision on a motion for severance or for dual juries
is reviewed for an abuse of discretion. People v Hana, 447 Mich 325, 331; 524 NW2d 682
(1994). Whether a person has been denied the effective assistance of counsel is a mixed question
of fact and constitutional law that is reviewed, respectively, for clear error and de novo. People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
MCR 6.121(C) provides, “On a defendant’s motion, the court must sever the trial of
defendants on related offenses on a showing that severance is necessary to avoid prejudice to
substantial rights of the defendant.” In Hana, supra at 351-352, our Supreme Court noted that
“[t]he dual-jury procedure should be scrutinized with the same concern in mind that tempers a
severance motion, i.e., whether it has prejudiced the substantial rights of the defendant.” In
regard to a claim of ineffective assistance of counsel, a defendant must show not only a deficient
performance, he must establish that the deficient performance prejudiced the defense, such that
there exists a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
For the facts and reasons on which we relied above in addressing the harmless error issue, we
decline to reverse defendant’s convictions because prejudice was not established.7
6
We note that defendant did not specifically move to sever or move for separate juries. Rather,
counsel for Horace Clark made such requests, which were denied. In light of our analysis, it is
unnecessary to determine whether the issues of severance and separate juries were properly
preserved or whether they were raised in a timely fashion. Typically, it is unnecessary for one
counsel to repeat an objection voiced by another counsel when the objection is sufficient to
direct the trial court’s attention to the matter. People v Bradford, 69 Mich App 583, 586; 245
NW2d 137 (1976).
7
As indicated previously, defendant also argues that counsel was ineffective for failing to object
to the trial court’s failure to read CJI2d 3.1 and the language regarding juror sympathy contained
therein. However, use of the Michigan Criminal Jury Instructions is not mandatory and they do
not have the official sanction of our Supreme Court. People v Stephan, 241 Mich App 482, 496;
616 NW2d 188 (2000). Moreover, the trial court instructed the jury that its decision is to be
based on the evidence. We cannot conclude that counsel’s performance was deficient and,
assuming it to be deficient, we find that defendant was not prejudiced.
-6-
Defendant’s final appellate argument is that the trial court erred in denying his motion for
directed verdict, where there was insufficient evidence to prove beyond a reasonable doubt that
he was a principal or an aider and abettor in the murders and assault, in that the prosecutor failed
to establish more than mere presence with knowledge that an offense was about to be committed,
or, in other words, the evidence showed passive acquiescence at most.
We review claims of insufficient evidence de novo. People v Lueth, 253 Mich App 670,
680; 660 NW2d 322 (2002). When ascertaining whether sufficient evidence was presented at
trial to support a conviction, this Court must 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 proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515-516; 489
NW2d 748 (1992), amended 441 Mich 1201 (1992). This Court will not interfere with the trier
of fact’s role of determining the weight of the evidence or the credibility of witnesses. Id. at
514-515. Circumstantial evidence and reasonable inferences that arise from such evidence can
constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999). All conflicts in the evidence must be resolved in favor of the
prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).8
Felony murder requires: (1) the killing of a human being, (2) with 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 (collectively known as the “malice” element),
(3) while committing, attempting to commit, or assisting in the commission of any of the
enumerated felonies in the statute. MCL 750.316(1)(b); Carines, supra at 758-759. The
elements of first-degree premeditated murder are that the defendant killed the victim, and that the
killing was willful, deliberate, and premeditated. MCL 750.316(1)(a); People v Bowman, 254
Mich App 142, 151; 656 NW2d 835 (2002).
“Every person concerned in the commission of an offense, whether he directly commits
the act constituting the offense or procures, counsels, aids, or abets in its commission may
hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly
committed such offense.” MCL 767.39. In general, to convict a defendant of aiding and
abetting a crime, the prosecutor must establish that (1) the crime charged was committed by the
defendant or some other individual; (2) the defendant performed acts or gave encouragement that
assisted in the commission of the crime; and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time that the defendant
gave aid and encouragement. People v Moore, 470 Mich 56, 67-68; 679 NW2d 41 (2004).
Aiding and abetting includes any and all forms of assistance. People v Lawton, 196 Mich App
341, 352; 492 NW2d 810 (1992). “The quantum of aid or advice is immaterial as long as it had
the effect of inducing the crime.” Id. However, mere presence at the crime scene, even with
knowledge that an offense is about to be committed, is insufficient to establish that a defendant
8
These principles are equally applicable in the context of an argument that the court erred in
denying a motion for directed verdict. People v Kris Aldrich, 246 Mich App 101, 122-123; 631
NW2d 67 (2001).
-7-
aided or assisted in the commission of the crime. People v Norris, 236 Mich App 411, 419-420;
600 NW2d 658 (1999).9
Here, the record contains sufficient evidence to support the convictions. Jovan Stanton
testified that defendant Sumerlin at first held her, Corey Brown, and the two children at gunpoint
in the upstairs of the home. Sumerlin forced Stanton and the others to put pillowcases over their
heads. At gunpoint, Sumerlin then ordered everyone to go downstairs. Stanton further testified
that on her way down the steps, she saw Pia Stanton lying on the floor wrestling with defendant
Horace Clark, and she saw defendant standing next to Pia. Stanton stated that defendant then
directed Sumerlin to take her, Brown, Armanda, and Lexus to the basement. Sumerlin took the
four down to the basement as directed and forced them to sit on the floor. Stanton testified that
she heard “bumping” noises going on upstairs for a couple of minutes, followed by a gunshot
and silence. After the gunshot, one of the intruders joined Sumerlin and the four victims down in
the basement, although Stanton could not identify whether it was Horace Clark or defendant.
Sumerlin then forced Stanton, Armanda, and Lexus into a basement bathroom; Brown was left
outside the bathroom door. As he was directing Stanton into the bathroom, Sumerlin took her
jewelry and one of the other intruders took her money. While in the bathroom, Stanton, who had
been speaking with Brown through the door, heard a gunshot within close range, and Brown was
not heard from again. Soon thereafter, Stanton was led to the basement stairs, with Sumerlin in
front of her and one of the other intruders behind her. Stanton was then shot in the head at close
range. Armanda testified that it was Horace Clark who at first held the victims at bay upstairs
and forced them to put pillowcases over their heads. Armanda stated that, as Horace Clark was
leading her downstairs, she observed defendant and Sumerlin wrestling with Pia Stanton. When
the victims and Horace were all down in the basement, Armanda heard bumping noises coming
from upstairs and then a gunshot. Defendant then came down to the basement and directed
Horace to take the four occupants into the basement bathroom. Additionally, as noted above,
Katrina Brown testified that the three defendants were together at her home on the day of the
crime and then left together, shortly before the crimes were committed, following a call from a
woman who spoke with defendant.
Minimally, this evidence showed that defendant worked in unison with his codefendants
and that he performed acts or gave encouragement, i.e., wrestling with Pia Stanton before she
9
Conviction of first-degree premeditated murder pursuant to an aiding and abetting theory
requires the prosecution to prove, in part, that the defendant (aider and abettor) either had the
premeditated and deliberate intent to kill or that the defendant knew that the principal possessed
this specific intent when the defendant gave aid or encouragement. People v Youngblood, 165
Mich App 381, 386-387; 418 NW2d 472 (1988). Conviction of first-degree felony murder
pursuant to an aiding and abetting theory requires the prosecution to prove, in part, that the
defendant had the intent to kill, intent to do great bodily harm, or wantonly and willfully
disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily
harm. People v Barrera, 451 Mich 261, 294; 547 NW2d 280 (1996), quoting People v Kelly,
423 Mich 261, 278-279; 378 NW2d 365 (1985). Additionally, if the aider and abettor
participates in a crime with the knowledge that the principal has the intent to kill or to cause
great bodily harm, he is acting with wanton and willful disregard sufficient to support a finding
of malice. Berrera, supra at 294, quoting Kelly, supra at 278-279.
-8-
was shot and directing that the victims be taken to the basement and then to the bathroom, that
assisted in the commission of the crimes; he was an active participant, not an innocent, passive
bystander. To the extent that there was conflicting evidence regarding the nature of his
involvement and credibility issues relative to the prosecution’s witnesses, such matters are left to
the jury for resolution and not this Court. Wolfe, supra at 514-515. Furthermore, the fact that
multiple victims were shot in the head at different times at close range (execution style), with
two having been forced to place pillowcases over their heads, clearly provides evidence of
malice, premeditation, and deliberation. Defendant’s convictions are affirmed.
II. Defendant Horace Clark
Defendant first argues that he was denied the right to exercise all of his peremptory
challenges. The record reflects that after the prosecutor and defendant Donmisce Clark exercised
peremptory challenges, one right after the other without juror replacement, counsel for defendant
and defendant Sumerlin were asked whether they had any peremptory challenges, and both
passed, declining to exercise a challenge. This left a jury of 12 (no alternates). The trial court
asked whether the parties were satisfied with the jury as constituted, and all expressed
satisfaction, including counsel for defendant. Although defendant may still have had
unexercised peremptory challenges, he explicitly declined to exercise those challenges and
affirmatively expressed satisfaction with all of the members of the jury.
In People v Carter, 462 Mich 206, 215, 219; 612 NW2d 144 (2000), our Supreme Court
discussed the principle of waiver:
Waiver has been defined as “the ‘intentional relinquishment or
abandonment of a known right.’” It differs from forfeiture, which has been
explained as “the failure to make the timely assertion of a right.” “One who
waives his rights under a rule may not then seek appellate review of a claimed
deprivation of those rights, for his waiver has extinguished any error.”
***
In the present case, counsel clearly expressed satisfaction with the trial
court’s decision to refuse the jury’s request and its subsequent instruction. This
action effected a waiver. Because defendant waived, as opposed to forfeited, his
rights under the rule, there is no “error” to review. [Citations omitted.]
Here, defendant waived any claim that he was denied the right to exercise all of his
peremptory challenges and any claim that the jury voir dire or selection process was legally
flawed;10 he expressed satisfaction with the jury and declined to exercise further peremptory
10
While technically the court was required to replace a juror as soon as that juror was excused,
MCR 2.511(F), the selection method remained fair and impartial, MCR 2.511(A)(4); People v
Green (On Remand), 241 Mich App 40, 48; 613 NW2d 744 (2000), and, under the
circumstances, no harm or prejudice came to defendant, whose right to a fair trial was in no way
violated.
-9-
challenges. MCR 2.511(E)(3)(b), which addresses peremptory challenges, provides that “[a]
‘pass’ is not counted as a challenge but is a waiver of further challenge to the panel as
constituted at that time.” (Emphasis added). Defendant mistakenly relies on People v Schmitz,
231 Mich App 521; 586 NW2d 766 (1998), abrogated by People v Bell, 473 Mich 275, 293; 702
NW2d 128 (2005) (peremptory challenges improperly denied subject to harmless-error analysis).
In Schmitz, the trial court refused the defendant’s request to exercise a peremptory challenge
regarding a venireman who had been on the panel when the defendant had passed for peremptory
challenges the day before. This Court ruled, “If the composition of the panel is changed after a
party passes a panel (either by challenges for cause or the exercise of peremptory challenge by
another party), the party is free to exercise further peremptory challenges to any member of the
new panel.” Id. at 529. Here, the issue was waived, extinguishing error, and, after defendant
passed on exercising a peremptory challenge, no other challenges were made that changed the
members of the jury, and the jury was seated. The fact that the trial court decided to go with 12
jurors as opposed to 13 or 14 as indicated earlier did not give rise to a right by defendant to then
exercise a peremptory challenge. Reversal is unwarranted.
Defendant next argues that there was insufficient evidence to convict him of either firstdegree murder or assault with intent to commit murder because specific intent was never
established. Defendant contends that the evidence did not show that he had the requisite intent,
or that he had knowledge aforehand of the principal’s actions and intent.
The guiding principles regarding sufficiency arguments, as well as those concerning
aiding and abetting and first-degree murder, are set forth above. Specific intent, like any other
fact at issue in a trial, may be proven indirectly by inference from the conduct of the accused and
surrounding circumstances from which it logically and reasonably follows. Lawton, supra at
349. Because of the difficulty in proving a defendant’s state of mind, minimal circumstantial
evidence is sufficient. People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999). The
intent to kill may be proven by the prosecution through inferences arising from any facts
admitted into evidence. Id.
There was evidence presented that defendant actively participated and assisted in the
commission of the crimes by holding the victims at gunpoint, by directing them to place
pillowcases over their heads, by forcing them to move about the house, and by wrestling with Pia
Stanton, and he was quite possibly involved as the actual shooter when considering the
witnesses’ testimony. The victims were not permitted to interfere while Pia Stanton was
struggling with two of the defendants. The fact that multiple victims were shot in the head at
different times, in varying locations, and at close range (execution style), with two having been
forced to place pillowcases over their heads, clearly provides circumstantial evidence of an intent
to kill or knowledge of an intent to kill that can be attributed to defendant, especially considering
the evidence that he marched the victims through the home and forced them to wear pillowcases
over their heads and evidence that he did not leave after Pia Stanton was murdered. He
continued participating in the criminal activity. To the extent that there was conflicting evidence
regarding the nature of defendant’s involvement and credibility issues relative to the
prosecution’s witnesses, such matters are left to the jury for resolution and not this Court. Wolfe,
supra at 514-515.
Finally, defendant argues that the trial court erred in failing to instruct the jury that aiders
and abettors must have the intent necessary to be guilty of the crime as a principal. We first note
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that counsel for defendant expressed satisfaction with the jury instructions, except for some
instructions not pertinent here, when she affirmatively communicated to the court that she did
not have any objections to the instructions when directly queried by the trial court. Accordingly,
the issue was waived for purposes of appellate consideration. Carter, supra at 215. Moreover,
the trial court specifically instructed the jury as follows regarding aiding and abetting:
To prove this, the prosecution has to prove the following elements beyond
a reasonable doubt. First, that the alleged crime was actually committed either by
the defendant or someone else. Second, that before or during the crime, the
defendant did something to assist in the commission of the 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 the giving of
assistance.
It doesn’t matter how much help, advice, or encouragement that the
defendant gave, however, you must decide whether the defendant intended to help
another commit the crime . . . . [Emphasis added.]
The trial court then proceeded to instruct the jury with respect to first-degree
premeditated murder and felony murder, which included instructions concerning specific intent
and malice. The instruction above is consistent with Supreme Court precedent, Moore, supra
67-68, and CJI2d 8.1. The jury was properly instructed, and there exists no basis for reversal.11
III. Defendant Arthur Sumerlin
Defendant first argues that there was insufficient evidence to support his conviction under
either a principal theory or an aiding and abetting theory. In that same vein, defendant contends
that the trial court erred in failing to grant his motion for directed verdict. In particular,
defendant maintains that there was insufficient evidence to establish premeditation, deliberation,
specific intent, and malice. The legal principles regarding sufficiency claims, as well as those
concerning aiding and abetting and first-degree murder, are cited above. They are equally
applicable in the context of an argument that the court erred in denying a motion for directed
verdict. Aldrich, supra at 122-123 (record reviewed de novo to determine whether evidence,
when viewed in light most favorable to prosecutor, could persuade rational trier of fact that
elements of crime were proven beyond a reasonable doubt).
Premeditation and deliberation may be inferred from all of the facts and circumstances
surrounding the killing. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). Although
there is no time requirement for establishing premeditation, sufficient time must have elapsed to
allow the defendant the opportunity to take a second look. People v Plummer, 229 Mich App
293, 300; 581 NW2d 753 (1998). Factors that may be considered to establish premeditation
include the following: (1) the previous relationship between the defendant and the victim; (2) the
11
Defendant briefly alludes to ineffective assistance of counsel in relation to the instructional
argument. Because there was no instructional error, counsel was not ineffective for waiving any
claim of error. See People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
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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. Id. at 300-301. Malice may
also be inferred from the facts and circumstances surrounding the killing, including the use of a
deadly weapon. Carines, supra at 759; People v Kemp, 202 Mich App 318, 322; 508 NW2d 184
(1993). Further, malice may be inferred from evidence that the defendant intentionally set in
motion a force likely to cause death or great bodily harm. People v Flowers, 191 Mich App 169,
177; 477 NW2d 473 (1991). Specific intent is discussed above.
There was evidence that defendant held the victims, not including Pia Stanton, at bay in
the upstairs of the home by gunpoint, that he ordered these victims downstairs, that he took the
victims into the basement, that Pia Stanton was soon shot by one of the perpetrators, that
defendant then forced the children and Jovan Stanton into a basement bathroom, that he took
Jovan’s jewelry, that Corey Brown was then shot, and that he was forcing Jovan to walk to the
stairs when she was shot. Armanda’s testimony indicated that defendant was wrestling with Pia
shortly before she was shot.
Once again, the fact that multiple victims were shot in the head at different times, in
varying locations, and at close range (execution style), with two having been forced to place
pillowcases over their heads beforehand, all with defendant’s active assistance, clearly provides
circumstantial evidence of premeditation, deliberation, specific intent, and malice. Even prior to
the murder of Pia Stanton, there was evidence that she was engaged in a fairly lengthy struggle
with two of the defendants before a shot was fired ending her life. Regardless whether defendant
was the principal or an aider and abettor, the circumstances surrounding the commission of these
horrific crimes provides ample evidence that defendant acted with premeditation, deliberation,
specific intent, and malice, or that he was fully cognizant that the principal was acting in such
fashion when giving assistance. Defendant points to conflicting evidence and witness credibility
issues, but, to the extent that there was conflicting evidence regarding the nature of his
involvement and credibility issues relative to the prosecution’s witnesses, such matters are left to
the jury for resolution and not this Court. Wolfe, supra at 514-515.
Defendant next argues that the trial court erred when it refused to instruct the jury with
respect to the lack of production of telephone records associated with the house where the crimes
were committed. Defendant sought to have the jury instructed regarding an adverse inference
pursuant to CJI2d 5.12 (Prosecutor’s Failure to Produce Witness) and People v Perez, 469 Mich
415; 670 NW2d 655 (2003). The trial court denied the request without discussion.
The lower court record indicates that counsel for defendant Donmisce Clark raised the
issue after the prosecution rested its case, noting that the prosecutor’s witness list indicated that
there were phone records. The prosecutor responded, without elaboration, that he did not have
possession of the phone records. The trial court simply responded, “So that deals with that.”
During the instructional phase of the trial, the court brought up the issue of an adverse inference
instruction and declined to so instruct, while at the same time mentioning that the prosecutor had
not provided a reasonable explanation for not producing the records or the custodian of the
records.12 The prosecutor’s witness list includes the “phone record custodian” relative to the
12
The trial court also noted that counsel for each defendant had raised the issue in an earlier
(continued…)
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address of the home where the crimes were committed. The witness is checked off or marked,
indicating endorsement for trial under MCL 767.40a(3).
In Perez, supra at 418, the Supreme Court noted that, “[b]efore 1986, the statute [MCL
767.40a] plainly imposed on a prosecutor the duty to list all res gestae witnesses on the
information and to produce them at trial.” With the 1986 amendment, the Legislature replaced
the prosecutor’s duty to produce res gestae witnesses with an obligation to provide notice of
known witnesses. Perez, supra at 418-419. However, an instruction pursuant to CJI2d 5.12 may
still be appropriate “if a prosecutor fails to secure the presence at trial of a listed witness who has
not been properly excused.” Id. at 420. In the case at bar, we cannot decipher from the limited
record whether the prosecutor had a reasonable or proper excuse for not procuring the presence
of the custodian and records, but the court hinted that no reasonable explanation was given.
Defendant frames this issue with more of an emphasis on missing phone records as
opposed to a missing witness. With respect to missing records and an adverse inference
instruction, intentional misconduct or bad faith on the part of the prosecutor is typically
necessary. See People v Davis, 199 Mich App 502, 515; 503 NW2d 457 (1993) (“[D]efendant
has not demonstrated that the prosecutor acted in bad faith in failing to produce the evidence.
Rather, . . . the evidence simply did not exist or could not be located. Under the circumstances,
the trial court did not err in declining to give this instruction.”). We cannot conclude from the
record that the prosecution acted in bad faith.
In sum, because of the limited record, we decline to conclude that the trial court erred in
refusing to give an adverse inference instruction. Regardless, assuming error, defendant has not
established that the error was prejudicial and affected the outcome of the trial. See MCL 769.26;
People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999). Reversal is unwarranted.
Finally, in a supplemental standard 4 brief, defendant argues that he was denied his right
to counsel and a fair trial when photographic lineups were conducted, where he was not yet in
custody but was the focus of the investigation. As part of this argument, defendant additionally
contends that his attorney was ineffective for failing to move to suppress the identifications
based on lack of counsel. According to defendant, his attorney should have had the photographic
identifications thrown out and then counsel should have argued that there was no independent
basis for the in-court identifications.
Only cursory treatment need be given to this argument. In People v Hickman, 470 Mich
602, 607, 611; 684 NW2d 267 (2004), our Supreme Court held that the right to counsel attaches
only to identifications conducted at or after the initiation of adversarial judicial criminal
proceedings, such as by formal charge, a preliminary hearing, an indictment, an information, or
an arraignment. The Court stated, “To the extent that People v Anderson, 389 Mich 155; 205
NW2d 461 (1973), goes beyond the constitutional text and extends the right to counsel to a time
before the initiation of adversarial criminal proceedings, it is overruled.” Id. at 603-604. The
cases relied on by defendant arose out of the now-rejected Anderson decision. The first
photographic array with Jovan Stanton in which she identified defendant was undertaken prior to
(…continued)
sidebar conference.
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the initiation of adversarial judicial criminal proceedings.13 Moreover, the police record relied
on by defendant indicates that a show-up attorney was indeed present at this initial photo lineup
in order to protect the rights of any suspects identified by the witnesses. The record indicates
that a second and third photo lineup with other witnesses in which defendant was identified took
place on September 25, 2003. Again, the record reflects that counsel was present at these lineups
or arrays. There was no error, and counsel was not ineffective for failing to pursue a meritless
position. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
Affirmed, but with remand for correction of the judgments of sentence consistent with
footnote 2 of this opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Patrick M. Meter
13
The lower court record indicates that the first photographic lineup with Jovan Stanton occurred
on September 4, 2003, and that a felony complaint was sworn out and a warrant was issued on
September 10, 2003.
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