PEOPLE OF MI V RAMONE DUSHAWN JONES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 27, 2007
Plaintiff-Appellee,
v
No. 273815
Wayne Circuit Court
LC No. 05-011451-01
RAMONE DUSHAWN JONES,
Defendant-Appellant.
Before: Jansen, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of carrying a concealed
weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession
of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was
sentenced as an habitual offender, third offense, MCL 769.11, to concurrent terms of 30 months
to ten years for the CCW and felon in possession convictions and to a consecutive two-year term
for the felony-firearm conviction. We affirm.
At the jury trial, evidence was received that defendant was approached on the street by
undercover police after they were alerted by a complainant that defendant may have a gun.
Defendant fled the scene and, as he ran, he kept his right hand either in his pocket or his
waistband as though he were carrying a weapon. Police gave chase and apprehended defendant
when he fell and a gun became dislodged from his grasp. At least three police officers saw the
gun in defendant’s hand as he fell.
Defendant first challenges the admission of a police officer’s testimony that the
complainant told him that “some guys” behind the complainant were trying to kill him and one
of the guys had a gun. Defendant argued at trial that the testimony was inadmissible hearsay.
He argues on appeal that it is also a violation of his rights under the Confrontation Clause, US
Const, Am VI. Because defendant’s counsel failed to raise the Confrontation Clause issue
below, our review is limited to plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763-765; 597 NW2d 130 (1999). To the extent defendant challenges the
testimony as inadmissible hearsay, our review is for an abuse of discretion. People v
Washington, 468 Mich 667, 670; 664 NW2d 203 (2003).
The Confrontation Clause bars the admission of testimonial statements of witnesses
absent from trial unless the declaring witness was unavailable and the defendant had a prior
opportunity to cross-examine the declaring witness. Crawford v Washington, 541 US 36, 59; 124
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S Ct 1354; 158 L Ed 2d 177 (2004). This rule applies only to out-of-court testimonial statements
offered to establish the truth of the matter asserted, id. at 59 n 9, and to “testimonial statements”
made by a witness. Davis v Washington, 547 US 813; 126 S Ct 2266, 2273; 165 L Ed 2d 224
(2006). The Supreme Court provided the following distinction between nontestimonial and
testimonial statements:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
[Davis, supra at 2273-2274.]
If a statement is nontestimonial, the Confrontation Clause does not apply. Davis, supra
at 2273. In this case, the complainant’s statements were clearly a plea for assistance from the
police that were made in the context on an ongoing emergency. As such, the statements were
nontestimonial in nature, and the Confrontation Clause was not implicated.
With regard to defendant’s hearsay challenge, the out-of-court statement that defendant
had a gun went directly to the heart of the charges against defendant and was clearly offered for
the truth of the matter asserted. Therefore it was inadmissible unless a specific hearsay
exception applied. MRE 801(c); MRE 802. No foundation for any exception was made, so the
admission of this hearsay testimony was an abuse of the trial court’s discretion. However, the
error was harmless in light of the other evidence that overwhelmingly established the charges
against defendant. MCL 769.26.
Defendant next challenges the trial court’s refusal to allow the jury to be present during
the good cause hearing, under MCL 767.40a, addressing the efforts made by police to locate the
missing witness, the complainant. This Court reviews a trial court's decision to admit or exclude
evidence for an abuse of discretion. People v Layher, 464 Mich 756, 761; 631 NW2d 281
(2001).
At trial, defendant’s attorney voiced his opinion that, had the complainant testified at
trial, his version of the incident would have contradicted the police officers’ testimony, and
consequently the police had not wanted to locate the complainant. However, when the court
asked whether defendant’s attorney had ever spoken to the complainant, defendant’s attorney
answered in the negative.
The trial court did not abuse its discretion in refusing to allow the jury to hear the
evidence concerning the efforts of the police to locate the complainant. The discrepancies
between the police reports and trial testimonies were minor, and defense attorney’s theory about
the complainant’s possible testimony was complete speculation. See People v Carnicom, 272
Mich App 614, 617; 727 NW2d 399 (2006) (it is not enough for the defendant to show a mere
possibility of assistance from the requested witness). Moreover, MCL 767.40a(4) provides that
the addition or deletion of witnesses may occur upon leave of the court for good cause shown.
Thus, the determination presents a legal issue for the trial court, not an issue for jury resolution.
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Next, defendant argues that he was denied his constitutional right to a speedy trial.
Because he did not raise this issue at the trial level, we review this unpreserved constitutional
claim of error for plain error affecting defendant's substantial rights. Carines, supra at 763-765.
Unlike application of the 180-day rule, criminal defendants are guaranteed a speedy trial without
reference to a fixed number of days. People v McLaughlin, 258 Mich App 635, 643-644; 672
NW2d 860 (2003). But a delay of six months is necessary to trigger an investigation into
defendant's claim of denial of his right to a speedy trial. People v O'Quinn, 185 Mich App 40,
47; 460 NW2d 264 (1990), overruled in part on other grounds, People v Koonce, 466 Mich 515;
648 NW2d 153 (2002). In this case, the trial started about six months and four days after
defendant’s arrest. However, the trial had been rescheduled from its original February 28, 2006,
date to May 3, 2006, due to the adjudication of defendant’s motion to adjourn the trial and two
motions seeking the withdrawal of defendant’s first two attorneys.1 Further exacerbating the
delay, defendant sought the removal of his attorney at the start of the May 3, 2006, trial, but the
trial court refused to allow the attorney to withdraw. Therefore, approximately two months of
the pretrial delay was attributable to adjudication of motions brought by defendant, and
defendant’s constitutional right to a speedy trial was not violated.
Defendant also maintains there was a violation of the 180-day rule. Before his
sentencing, defendant urged his attorney to file a motion for a new trial based on this alleged
violation, but the attorney refused on the ground that such a motion would be frivolous. On
appeal, defendant argues that he was provided ineffective assistance of counsel and that he
should receive a new trial based on the violation of the 180-day rule.
The 180-day rule requires the prosecutor to bring a prison inmate who has a pending
criminal charge to trial within 180 days after the Department of Corrections delivers notice to the
prosecutor of the inmate's imprisonment and requests disposition of the pending charge. MCL
780.131(1); see also MCR 6.004(D)(1). “[T]he statute applies only to those defendants who, at
the time of trial, are currently serving in one of our state penal institutions, and not to individuals
awaiting trial in a county jail.” McLaughlin, supra at 643. In this case, defendant was arrested
on October 29, 2005, but apparently released on personal bond sometime thereafter despite the
fact that he was on parole. Sometime between December 12, 2005, and January 3, 2006,
defendant’s parole officer violated defendant, which resulted in defendant’s arrest and
incarceration at the one of the penal institutions operated by the Michigan Department of
Corrections. Since December 12, 2005, was the earliest date that the Department of Corrections
could have sent a notice to the prosecutor, less than 180 days elapsed before the May 3, 2006
start of the jury trial. As such, there was no violation of the 180-day rule.
Finally, because a motion for a new trial based on the 180-day rule would have been
futile, defendant was not deprived of the effective assistance of counsel. People v Fike, 228 Mich
App 178, 182-183; 577 NW2d 903 (1998).
1
It should be noted that defendant apparently opposed the motion to adjourn, but this fact does
not change the analysis of defendant’s speedy trial claim since delays caused by the adjudication
of defense motions are attributable to the defendant. People v Gilmore, 222 Mich App 442, 461;
564 NW2d 158 (1997).
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Affirmed.
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
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