PEOPLE OF MI V BOBBY EMMITT KENNEDY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 8, 2007
Plaintiff-Appellee,
v
No. 271020
Kent Circuit Court
LC No. 03-011966-FC
BOBBY EMMITT KENNEDY,
Defendant-Appellant.
Before: Whitbeck, C.J., and Talbot and Fort Hood, JJ.
PER CURIAM.
Defendant Bobby Kennedy appeals by delayed leave granted his jury conviction of first
degree premeditated murder,1 being a felon in possession of a firearm (felon in possession),2 and
carrying a firearm during commission of a felony (felony firearm).3 The trial court sentenced
Bobby Kennedy, as an habitual offender fourth,4 to 2 years’ imprisonment (less 610-days’ jail
credit) for felony firearm, followed by concurrent sentences of life imprisonment without the
possibility of parole for murder and two to five years’ imprisonment for felon in possession.
This case arises out of the June 1997 shooting death of 19-year-old Timmy Thomas. We affirm.
I. Basic Facts And Procedural History
In December 2003, police arrested Bobby Kennedy, and a one-man grand jury indicted
him for Thomas’s murder. The prosecution theory of the case was that Bobby Kennedy shot
Thomas execution-style because Bobby Kennedy believed that Thomas had stolen some drugs
from him and because Thomas had subsequently threatened Bobby Kennedy in front of other
people. Several witnesses testified that Bobby Kennedy told people before the shooting that he
was going to kill Thomas and that, after the shooting, he bragged that he had done it. According
to the prosecution, Bobby Kennedy established a false alibi after the murder with the help of
1
MCL 750.316(1)(a).
2
MCL 750.224f.
3
MCL 750.227b.
4
MCL 769.12.
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several witnesses. The witnesses testified that they lied by telling police that Bobby Kennedy
was with them on the morning of the murder. The prosecutor also contended that Bobby
Kennedy paid for lawyers for the witnesses when they got in trouble during the years between
the time of the shooting and the time that the grand jury indicted Bobby Kennedy. The
prosecutor posited that Bobby Kennedy used the lawyers he paid for to keep the witnesses quiet
and monitor what they said to police.
Anthony McLiechey testified that on the morning of June 24, 1997, he drove Bobby
Kennedy to the location where the shooting took place, that he saw Bobby Kennedy shoot
Thomas, and that he disposed of the gun in a garbage can after the shooting. After the murder,
McLiechey drove Bobby Kennedy to Tanea McKinney’s apartment. Tanea McKinney testified
that Bobby Kennedy and McLiechey came to her apartment sometime around 6:00 or 6:30 a.m.
on the morning of June 24, 1997. Tanea McKinney stated that she overheard Bobby Kennedy
tell her boyfriend, John Holman, “I got him.” Bobby Kennedy then changed his clothes, and
Tanea McKinney helped him put his old clothes in a bag to take out to the trash. McLiechey,
Bobby Kennedy, Tanea McKinney, and Holman, then all went to breakfast.
When police questioned Tanea McKinney a couple days after the murder, she told them
that Bobby Kennedy came to her house at 3:00 a.m. on the morning of June 24, 1997, and was
there until they went to breakfast. But during the 2003 grand jury hearing, Tanea McKinney
confessed to lying about Bobby Kennedy’s whereabouts on the morning of the murder. She
explained that she eventually decided to tell the truth during the grand jury proceedings because
she did not want to be subject to more jail time for lying.5
During his 2003 grand jury testimony, McLiechey repeatedly denied knowing anything
about the murder. But McLiechey was later recalled during the grand jury hearing, and he
finally admitted that he was involved in the murder as the driver of the vehicle that carried
Bobby Kennedy to and from the scene of the shooting. At that time, McLiechey denied that
Bobby Kennedy ever threatened him or tried to pay him off. At trial in 2005, McLiechey
explained that he eventually decided to tell the truth during the grand jury proceedings because
Tanea McKinney had finally confessed to lying to the police. McLiechey testified that Bobby
Kennedy began threatening him after he testified before the grand jury.
II. Sixth Amendment Right To Counsel
A. Standard Of Review
Bobby Kennedy argues that he was denied his right to counsel of choice when the trial
court granted the prosecutor’s motion to disqualify Bobby Kennedy’s attorney, N.C. Deday
LaRene, on the ground that the prosecutor intended to call LaRene as a witness at trial. The
prosecution argued that LaRene’s testimony was necessary to show that Bobby Kennedy “took
care” of witnesses by hiring lawyers for them and paying their legal fees in order to prevent them
from testifying to the truth of Bobby Kennedy’s role in Thomas’s murder.
5
Tanea McKinney was serving a 20-to-50-year sentence on a drug possession conviction.
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“We review for an abuse of discretion a trial court’s exercise of discretion affecting a
defendant’s right to counsel of choice.”6 An erroneous deprivation of a defendant’s right to
retained counsel of his choice is a structural error requiring reversal.7
B. Relevant Facts
Sometime prior to the 2003 grand jury hearing, police interviewed McLiechey pursuant
to an investigative subpoena related to the Thomas murder. An attorney named Louise E.
Herrick initially represented McLiechey during the investigative subpoena proceedings. On
Herrick’s direction, McLiechey refused to testify at the time of the investigative subpoena.
McLiechey stated that Bobby Kennedy’s wife, Charlevette Kennedy, hired Herrick to
represent him. McLeichey explained that upon receiving the investigative subpoena, he
contacted Charlevette Kennedy because he wanted her to tell “them” that he did not know
anything. But McLiechey and Charlevette Kennedy ended up discussing whether he should have
legal counsel during questioning for the interview. According to McLiechey, Charlevette said
that she was going to have a lawyer come see him. McLiechey stated, “Herrick said that she was
paid by—she said somebody named Dee—Deday asked him something about—asked her to
represent me through Charlevette, something—something like that.” McLiechey stated that
when he asked Herrick about money, “she said that Charlevette gave her some money.”
McLiechey denied knowing why Bobby Kennedy would pay a lawyer to represent him.
Louise Herrick confirmed that she represented McLiechey during the investigative
subpoena proceedings. Herrick testified that she agreed to represent McLiechey after her fiancé,
who was also an attorney, told her that attorney Deday LaRene was looking for an attorney to
represent McLiechey. Herrick explained that all she knew was that the case involved an
investigative subpoena. Herrick testified that a woman named “Charlevette” paid for Herrick’s
legal fees by depositing funds in Herrick’s checking account. According to Herrick, LaRene
denied knowing the identity of the woman who had paid Herrick’s fee. Herrick simply assumed
the woman was McLiechey’s friend or girlfriend. Herrick denied knowing Bobby Kennedy and
stated that she had no knowledge of LaRene’s relationship with Bobby Kennedy or Bobby
Kennedy’s relationship with “Charlevette” until the relationships were exposed during the
investigative subpoena hearing. Once the relationships were exposed, the judge presiding over
the hearing removed Herrick from the case.
At the time he was served with the investigative subpoena, McLiechey was incarcerated
and his calls were being monitored and recorded. Detective Philip Betz testified that McLiechey
had a “large number of phone calls” with Charlevette Kennedy. Detective Betz explained that
there was
6
People v Akins, 259 Mich App 545, 556-557; 675 NW2d 863 (2003), quoting People v Fett,
257 Mich App 76, 88; 666 NW2d 676 (2003).
7
United States v Gonzalez-Lopez, ___ US ___; 126 S Ct 2557, 2564; 165 L Ed 2d 409 (2006).
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a lot of conversation regarding attorneys, and who had gotten an attorney, and
also conversations on the phone where it was clear that another attorney in
Detroit, a DeDay LaRene, was working on the same case, kind of behind the
scenes, so to speak, passing advice on, through Charlovette to this attorney, Ellie
Herrick, and then back again.
Tanea McKinney testified that while she was in jail on her drug possession conviction a
lawyer named Glenda Allen, whom she assumed her family hired, came to visit her. According
to Allen, a woman claiming to be Tanea McKinney’s sister asked Allen to go check on
McKinney in jail. Allen claimed that she did not know Tanea McKinney was a witness in Bobby
Kennedy’s grand jury proceedings until she went to visit her. Allen denied that Bobby Kennedy
asked her to go see Tanea McKinney. However, Glenda Allen admitted that she knew Bobby
Kennedy “through . . . dealing with some other clients in the past[,]” including John Holman.
Allen explained that she had represented Holman in a drug case and that an unknown woman had
paid her legal fees. Allen stated that Bobby Kennedy came into her office once or twice to check
on the status of Holman’s case. Allen thought Bobby Kennedy was just a concerned friend.
Allen was not aware at that time that Holman was a witness in the Thomas case. At some point,
Allen’s partner, Helen Nieuwenhuis, took over Holman’s case.
Helen Nieuwenhuis confirmed that she took over Holman’s case from Allen.
Nieuwenhuis testified that she knew that Holman was being questioned in the Thomas murder
because she knew the Thomas family. She testified that she also knew that Bobby Kennedy was
a suspect in the murder. Nieuwenhuis testified that when she saw Bobby Kennedy coming to the
office to see Allen, she warned Allen not to divulge to Bobby Kennedy any information about
Holman. Nieuwenhuis testified that she never spoke to Bobby Kennedy. Nieuwenhuis testified
that, at the time Allen took the retainer, Nieuwenhuis was under the impression that the money
came from Holman’s father. Nieuwenhuis had no information that Bobby Kennedy paid her or
Allen any money.
C. Applicable Law
The Sixth Amendment to the United States Constitution and Const 1963, art 1, § 20
guarantee a defendant’s right to counsel in all criminal prosecutions.8 The Sixth Amendment
right to counsel attaches to criminal prosecutions at the time judicial process is initiated, and
extends to every critical stage of the proceeding.9 The constitutional right to counsel
encompasses the right of a defendant to choose his own retained counsel.10 However, the right is
not absolute, and a court must balance the defendant’s right to choice of counsel against factors
such as the public’s interest in the efficient and fair administration of justice, avoidance of
8
See also People v Marsack, 231 Mich App 364, 372-373; 586 NW2d 234 (1998).
9
Iowa v Tovar, 541 US 77, 81, 87; 124 S Ct 1379, 1383, 1387; 158 L Ed 2d 209 (2004); People
v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004).
10
Gonzalez-Lopez, supra at 2561; Akins, supra at 557.
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conflicts of interest, and adherence to ethical standards.11 For example, a defendant may not
insist on an attorney’s representation when that attorney has a previous or ongoing relationship
with an opposing party.12
Further, MRPC 3.7(a), which provides the ethical rule regarding lawyers as witnesses,
states as follows:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be
a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
The comment to MRPC 3.7 provides as follows:
Combining the roles of advocate and witness can . . . involve a conflict of interest
between the lawyer and client.
. . . A witness is required to testify on the basis of personal knowledge, while an
advocate is expected to explain and comment on evidence given by others. It may
not be clear whether a statement by an advocate-witness should be taken as proof
or as an analysis of the proof.
Moreover, this Court has noted that
the purpose of the rule is to prevent any problems that would arise from a
lawyer’s having to argue the credibility and the effect of his or her own testimony,
to prevent prejudice to the opposing party that might arise therefrom, and to
prevent prejudice to the client if the lawyer is called as an adverse witness, not to
permit the opposing party to seek disqualification as a tactical device to gain an
advantage.[13]
D. Analysis
LaRene argued that he was not a necessary witness, noting that several other witnesses
could be called to testify regarding the referral arrangements. However, the record demonstrates
11
Gonzalez-Lopez, supra at 2565-2566; Wheat v United States, 486 US 153, 159; 108 S Ct 1692;
100 L Ed 2d 140 (1988); Akins, supra at 557.
12
Wheat, supra at 159.
13
People v Tesen, ___ Mich App ___; ___ NW2d ___ (2007), slip op at 6.
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that LaRene was likely to be a necessary witness to show that Bobby Kennedy used his money to
control and influence McLiechey and other witnesses.
Part of the prosecutor’s case was that LaRene was a conduit for Kennedy’s control over
key witnesses by the procurement and payment of legal services for that witness. The record
indicated that LaRene was involved in recruiting counsel to represent potential witnesses in
Bobby Kennedy’s trial. His involvement made him a potentially necessary witness to Bobby
Kennedy’s overall scheme to manipulate or silence witnesses, and created a conflict of interest
that precluded LaRene from representing Bobby Kennedy. Information regarding the fee and
referral arrangement for the hiring of an attorney for a witness, when and how the referral
attorney was contacted, as well as who sought the arrangement was not available by any other
means than LaRene. Although Herrick and Allen were available to testify regarding the referral
and the payment of the fees at their end of the arrangements, only LaRene could testify regarding
the transactions from his perspective, which the testimony revealed may have differed from
Herrick’s and Allen’s recollections. LaRene’s testimony was likely to be a critical and integral
part of the case necessary to illuminate his relationship with Bobby Kennedy and the witnesses.
LaRene argued that presenting his testimony would not constitute an ethical violation
because he would be testifying to the uncontested fact that he assisted in securing counsel for the
witnesses.14 However, LaRene’s mere statement that his testimony would be uncontested did not
make it so. Notably, the prosecution sent interrogatories to LaRene to determine whether a
stipulation was possible in lieu of his testimony; however, LaRene refused to answer numerous
questions, including basic background questions regarding his relationship with Kennedy. Thus,
it was not unreasonable for the trial court to conclude that LaRene testimony would touch on
contested matters. Further, although LaRene implied that Bobby Kennedy was willing to waive
any conflict of interest raised by LaRene serving as witness and advocate, the trial court was not
bound to accept the waiver.15
LaRene argued that any of his conversations with Bobby Kennedy regarding his
motivations for securing counsel for the witnesses would be privileged. However, LaRene could
have testified regarding the unprivileged communications between him and Bobby Kennedy
regarding the specifics of the financial arrangements made for the witnesses’ attorneys.16 To the
extent that the prosecutor attempted to delve into privileged matters, Kennedy would have been
entitled to object and seek the trial court’s ruling as to the propriety of a specific inquiry.
Additionally, we simply find no merit to Bobby Kennedy’s claim that LaRene’s
disqualification would have worked a substantial hardship on Bobby Kennedy’s defense.17
Bobby Kennedy was entitled to have as his counsel an attorney with whom he had an
14
See MRPC 3.7(a)(1).
15
Wheat, supra at 160-163.
16
See Yates v Keane, 184 Mich App 80, 83; 457 NW2d 693 (1990); US Fire Ins Co v Citizens
Ins Co, 156 Mich App 588, 592-593; 402 NW2d 11 (1986).
17
See MRPC 3.7(a)(3).
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established, trusting relationship. However, “while the right to select and be represented by
one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the
Amendment is to guarantee an effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”18
“‘Courts have the power and duty to disqualify counsel where the public interest in maintaining
the integrity of the judicial system outweighs the accused’s constitutional right.’”19 “The court
has . . . an ‘independent interest in ensuring that criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear fair to all who observe them.’”20
LaRene’s testimony would have created an impermissible conflict for LaRene between
his role as an advocate for Bobby Kennedy and his role as witness. And the record is devoid of
evidence that the prosecution sought to disqualify LaRene to gain a tactical advantage.21 Thus,
balancing the interests of Bobby Kennedy’s right to choose his own counsel with the public’s
interest in the efficient and fair administration of justice, avoidance of conflicts of interest, and
adherence to ethical standards, we conclude that that trial court did not error in disqualifying
LaRene from serving as defense counsel.
The fact that, ultimately, the prosecution did not call LaRene to testify at trial does not
invalidate the trial court’s ruling to disqualify him. As the United States Supreme Court
explained in Wheat v United States:
Unfortunately for all concerned, a [trial] court must pass on the issue whether or
not to allow a waiver of a conflict of interest by a criminal defendant not with the
wisdom of hindsight after the trial has taken place, but in the murkier pretrial
context when relationships between parties are seen through a glass, darkly. The
likelihood and dimensions of nascent conflicts of interest are notoriously hard to
predict, even for those thoroughly familiar with criminal trials.[22]
At the time the trial court granted the prosecution’s motion to disqualify, the court was
convinced that Mr. LaRene was likely to be a necessary witness. Accordingly, we conclude that
the trial court’s decision to disqualify LaRene on the ground that he was a potentially necessary
witness at trial fell within the principled range of outcomes.23
18
Wheat, supra at 159.
19
Id. at 158 n 2, quoting In re Grand Jury Subpoena Served Upon Doe, 781 F2d 238, 250-251
(CA 2).
20
Gonzalez-Lopez, supra at 2566, quoting Wheat, supra at 160.
21
Tesen, supra.
22
Wheat, supra at 162-163.
23
See Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
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III. Prosecutorial Misconduct
A. Standard Of Review
Bobby Kennedy argues that he was denied his right to a fair trial when the prosecutor
obsessed on the fact that Bobby Kennedy had paid for the witnesses’ attorneys. We review
prosecutorial misconduct issues case by case under a de novo standard.24 We must examine the
pertinent portion of the record and evaluate the prosecutor’s remarks in context to determine
whether a defendant was denied a fair and impartial trial.25
B. Relevant Facts
The prosecutor began her closing argument with the following statement:
This whole case, from back in 1997 all the way up until today, to this
minute, has really been about control and manipulation. By him. By defendant.
First he tried to control and manipulate the victim.
***
[Bobby Kennedy] couldn’t control [Thomas.] He couldn’t manipulate
him. So he killed him.
And he’s done that with everyone and everything in the entire course of
this investigation and trial. How did he control and manipulate the witnesses?
Well, from the beginning, he used them, right? They were all his friends. . . . [H]e
really controlled and manipulated ‘em at first by implicating them, by drawing
them in to the crime.
The prosecutor continued,
And as the years went on, people started to catch cases, right? People
started to get their own legal troubles, and so now he had to control them,
manipulate them, keep them in check with the original story, the first story.
How? Legal help. Hire attorneys. Keep them quiet. Tell them to take the Fifth.
And pay them out of his own pocket, or out of this hotshot attorney in Detroit’s
pocket. Why? Can you think of one legitimate reason why a person, who is not
afraid of what these people would say, who didn’t have something to hide, who
didn’t need to control these people, would ever pay thousands of dollars to keep
them quiet? There isn’t any.
24
People v Thomas, 260 Mich App 450, 453-454; 678 NW2d 631 (2004).
25
Id. at 454.
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C. Applicable Law And Analysis
The prosecutor’s role and responsibility differs from that of other attorneys: his duty is to
seek justice, not merely to convict.26 “A defendant’s opportunity for a fair trial can be
jeopardized when the prosecutor interjects issues broader than the guilt or innocence of the
accused.”27 The propriety of a prosecutor’s remarks depends on all the facts of the case.28 A
court must read the prosecutorial comments as a whole and evaluate them in light of defense
arguments and the relationship the comments bear to the evidence admitted at trial.29
Evidence that Bobby Kennedy had attempted to influence the testimony of prosecution
witnesses was proper and relevant. A defendant’s threat against a witness is relevant and
generally admissible to demonstrate the defendant’s consciousness of guilt.30 Similarly,
evidence of a defendant’s efforts to influence, coerce, or bribe witnesses against him is
admissible to demonstrate a consciousness of guilt.31 Therefore, the fact that Bobby Kennedy
paid for counsel to represent people who would be potential witnesses at his murder trial was
highly relevant to demonstrate his consciousness of guilt.
“A prosecutor may not make a statement of fact to the jury that is unsupported by
evidence, but she is free to argue the evidence and any reasonable inferences that may arise from
the evidence” as they relate to the theory of the case.32 The prosecutor need not use the least
prejudicial evidence available to establish a fact at issue, nor must he or she state the inferences
in the blandest possible terms.33 “A prosecutor’s good faith effort to admit evidence does not
constitute misconduct.”34
Part of the prosecutor’s case was that Bobby Kennedy acted to intimidate, interfere with,
and threaten witnesses, and evidence showed that LaRene was involved in retaining attorneys for
witnesses. The prosecutor was free to make reasonable inferences about this evidence. Bobby
Kennedy failed to show that the prosecutor’s statements were not related to the evidence or that
his statements served to mislead the jury. Indeed, defense counsel never objected to the
prosecutor’s comments at trial, choosing instead to respond to the comments by arguing the
existence of different inferences. Further, the trial court’s jury instruction that the prosecutor’s
26
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007).
27
Id. at 63-64.
28
People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002).
29
People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005).
30
People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996).
31
People v Mock, 108 Mich App 384, 389; 310 NW2d 390 (1981); United States v Blackwell,
459 F3d 739, 768 (CA 6, 2006).
32
People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).
33
People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995); Dobek, supra at 66.
34
Dobek, supra at 70.
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closing argument was not evidence cured any possible prejudice. The prosecutor did not engage
in misconduct by highlighting the fact that Bobby Kennedy paid for counsel to represent
witnesses. Accordingly, we conclude that the prosecutor’s comments during closing argument
did not deny Bobby Kennedy a fair trial.
IV. Other Bad Acts Evidence
A. Standard Of Review
Bobby Kennedy argues that the trial court abused its discretion in admitting testimony
from several witnesses stating that he was involved in dealing drugs. We review for an abuse of
discretion the trial court’s decision to admit other acts evidence.35 Even when properly
preserved, the defendant bears the burden of establishing that, more probably than not, a
miscarriage of justice occurred.36 Reversal is not required unless, viewing the evidence in the
light most favorable to the prosecutor,37 it affirmatively appears that it is more probable than not
that the error was outcome determinative.38
B. Relevant Facts
Several witnesses testified during trial regarding Bobby Kennedy’s alleged involvement
in selling drugs. John McKinney, Tanea McKinney’s brother and a friend of both Thomas and
Bobby Kennedy, testified that both Thomas and Bobby Kennedy sold drugs. Tanea McKinney
testified that Bobby Kennedy was probably out on the street selling drugs when he first saw
Thomas on the morning of the shooting. Tanea McKinney confirmed that Bobby Kennedy
would leave guns, drugs, or “illegal stuff” in her apartment “from time to time.” She confirmed
that Bobby Kennedy was involved in selling crack.
Alisha Coleman, a friend of Bobby Kennedy’s, testified that Bobby Kennedy sold drugs.
During her testimony, the prosecutor asked Coleman, “[P]rior to [Thomas’s] death, did the
defendant ever mention anything about having a run-in with somebody?” Coleman responded,
“Just saying that someone stole some drugs from him.” Levar Elliott, another friend of Bobby
Kennedy’s, testified that in 1996 Bobby Kennedy pulled a gun on him “because [Elliott] was out
selling drugs, and [he] snatched one of [Bobby Kennedy’s] sales[.]” Elliott clarified that
statement by confirming that he took some money from one of Bobby Kennedy’s drug clients.
Larry Creighton, a private investigator, testified that he interviewed Bobby Kennedy as a
potential witness during his investigation of a drug raid case in October 2000. Bobby Kennedy
admitted to Creighton that he was present during the drug raid. Indeed, Bobby Kennedy
35
People v Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998).
36
People v Knapp, 244 Mich App 361, 378; 624 NW2d 227 (2001).
37
People v Knox, 469 Mich 502, 511 n 3; 674 NW2d 366 (2004).
38
Knapp, supra at 378.
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described himself “as the biggest heroin dealer in Grand Rapids.” Creighton testified that Bobby
Kennedy told him that he sold $5,000 to $10,000 worth of drugs a day.
C. Applicable Law And Analysis
MRE 404(b)(1) governs the admissibility of other bad acts evidence and provides as
follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
To be admissible under MRE 404(b), bad acts evidence generally must satisfy three
requirements: (1) it must be offered for a proper purpose, (2) it must be relevant, and (3) its
probative value must not be substantially outweighed by its potential for unfair prejudice.39 A
proper purpose is one other than establishing the defendant’s character to show his propensity to
commit the offense.40 The prosecutor bears the burden of establishing relevance.41 The
proffered evidence would be unfairly prejudicial if it presents a danger that the jury would give
undue or preemptive weight to marginally probative evidence.42 Use of bad acts as evidence of
character is excluded, except as MRE 404(b) allows, to avoid the danger of conviction based on
a defendant’s history of misconduct.43
Evidence of Bobby Kennedy’s prior involvement in the sale of drugs was admissible
under MRE 404(b). As the prosecutor explained, Bobby Kennedy’s involvement in drug dealing
was relevant to show motive, one of the enumerated exceptions under MRE 404(b), when the
prosecution’s theory of the case was that Bobby Kennedy killed Thomas for revenge arising out
Thomas’s alleged theft of drugs from Bobby Kennedy. For this same reason, introduction of this
probative evidence was not unfairly prejudicial. Accordingly, we conclude that the trial court
did not abuse its discretion in allowing the admission of evidence related to Bobby Kennedy’s
prior involvement in drug dealing.
39
Knox, supra at 509.
40
People v Johnigan, 265 Mich App 463, 465; 696 NW2d 724 (2005).
41
Knox, supra at 509.
42
People v Ortiz, 249 Mich App 297, 306; 642 NW2d 417 (2001).
43
Johnigan, supra at 465.
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V. Hearsay Evidence
A. Standard Of Review
Bobby Kennedy argues that the trial court abused its discretion in refusing to admit a
deceased witness’s statement that was contained in police investigation notes. The decision
whether to admit evidence is within the discretion of the trial court, and is a decision that we will
not disturb on appeal absent an abuse of discretion.44 “A trial court’s decision on a close
evidentiary question ordinarily cannot be an abuse of discretion.”45 We will not assess the
weight and value of the evidence when reviewing a trial court’s decision to admit evidence; we
will only determine whether the jury properly considered the evidence.46 The trial court best
determines the prejudicial effect of evidence by contemporaneously assessing the presentation,
credibility, and effect of the testimony.47
B. Relevant Facts
During trial, defense counsel moved under MRE 804 for the admission of police notes
from the interview of Johnny Brown, who was a witness to the Thomas murder. Brown was
unavailable to testify at trial because he had passed away before trial. Defense counsel argued
that his statements were “critical to [the] defense, because he was an eyewitness, and he made
observations that are clearly more consistent with what the other eyewitnesses in the
neighborhood saw, and more inconsistent with what either jailhouse snitches or any of the . . .
prosecution witnesses say they saw.” After acknowledging that MRE 804 required a showing of
trustworthiness, defense counsel pointed out that, at the time of the murder, Brown was a 47
year-old security guard who witnessed the murder while on his way home from work. Defense
counsel noted that Brown was interviewed the same day as the murder and related his “honest
recollection” to a “trained detective investigating a homicide,” and pointed out that the interview
notes were “preserved as part of the case file.” The trial court denied admission of the statement,
concluding that the statement did not have the necessary guarantees of trustworthiness to make it
admissible under the rules of evidence.
C. Applicable Law And Analysis
MRE 804(a)(4) recognizes that a witness is considered “unavailable” when the witness is
unable to testify because of death. When a witness is “unavailable,” MRE 804(b)(7) further
provides for the admission of the witness’s out of court statement if the statement is:
1) trustworthy, 2) evidence of a material fact, and 3) more probative than any other evidence that
can be procured through reasonable efforts. Further, admission of the statement into evidence
must best serve the general purposes of the rules of evidence and the interests of justice.
44
People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
45
People v Meshell, 265 Mich App 616, 637; 696 NW2d 754 (2005).
46
Cole v Eckstein, 202 Mich App 111, 113-114; 507 NW2d 792 (1993).
47
People v Bahoda, 448 Mich 261, 291; 531 NW2d 659 (1995).
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In determining whether a statement is trustworthy, the court should consider the “totality
of the circumstances” and look to factors such as:
(1) the spontaneity of the statements; (2) the consistency of the statements;
(3) lack of motive to fabricate or lack of bias; (4) the reason the declarant is
unavailable; (5) the voluntariness of the statements, i.e. whether they were made
in response to leading questions or made under undue influence; (6) personal
knowledge of the declarant about the matter on which he spoke; (7) to whom the
statements were made; and (8) the timeframe within which the statements were
made.[48]
Here, Brown was unavailable to testify because he died before trial. However, an
unspecified police officer’s notes from an interview with Brown do not have the necessary
guarantees of trustworthiness to be admissible at trial. Brown’s statements were made several
hours after the shooting incident took place, his recollection was inconsistent with that of other
witnesses who were present to testify at trial, and the record was lacking evidence regarding
Brown’s reliability. There was no evidence regarding the accuracy of the police officer’s notes,
and as the trial court pointed out, “it’s not uncommon for a police officer to write something
down differently or incorrectly from what is stated.” Accordingly, we conclude that the trial
court did not abuse its discretion in denying Kennedy’s motion to admit unverified and, thus,
untrustworthy, evidence from an unavailable witness.
Affirmed.
/s/ William C. Whitbeck
/s/ Michael J. Talbot
/s/ Karen M. Fort Hood
48
People v Lee, 243 Mich App 163, 178; 622 NW2d 71 (2000) (internal citations omitted).
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