PEOPLE OF MI V KEVIN LONELL HARRINGTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 20, 2008
Plaintiff-Appellee,
v
No. 272939
Wayne Circuit Court
LC No. 02-013495-01
KEVIN LONELL HARRINGTON,
Defendant-Appellant.
Before: Meter, P.J., and Sawyer and Wilder, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a), and he was sentenced to life imprisonment without parole. He appeals as of right.
We affirm.
Defendant’s conviction arises from the fatal shooting of Michael Martin, whose body was
discovered in a field near an apartment complex where he lived. Martin died from two gunshot
wounds, one to the abdomen and one to his head. Defendant allegedly committed the offense
along with codefendant George Clark.
At trial, the prosecution’s principal witness, Bearia Stewart, a resident of the apartment
complex where the victim was killed, denied witnessing the shooting or hearing any gunshots.
Stewart admitted, however, that she previously testified at defendant’s and Clark’s preliminary
examinations that she saw defendant and Clark arguing and fighting with the victim about money
and drugs, after which Clark dragged the victim into the field behind the apartment complex, and
then she heard three or four gunshots. At trial, Stewart claimed that the police threatened her if
she would not cooperate and forced her to testify at the preliminary examinations. However, the
prosecution also introduced evidence that Stewart was threatened by defendant and others
associated with this case.
Defendant first argues that the trial court erred in denying his motion for a new trial on
the basis of juror misconduct. In support of his motion, defendant submitted affidavits indicating
that a juror failed to reveal during voir dire that she had a nephew who had pending criminal
charges in a case assigned to the same judge who presided over defendant’s trial and also failed
to reveal that she had a relative who had been killed by a drunk driver.
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This Court reviews a trial court’s decision denying a defendant’s motion for a new trial
for an abuse of discretion. People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000). “To
be entitled to a new trial on the basis of juror misconduct, defendant must ‘establish (1) that he
was actually prejudiced by the presence of the juror in question or (2) that the juror was properly
excusable for cause.’ ” Id., quoting People v Daoust, 228 Mich App 1, 9 n 3; 577 NW2d 179
(1998). In Daoust, this Court stated that this test does not apply in situations where it is
discovered that a juror lied during voir dire. However, this Court has viewed that statement as
dicta and defendant relies only on a dissenting opinion in support of his argument that Daoust
governs this case. See People v Benny Johnson, Jr, 245 Mich App 243, 267; 631 NW2d 1
(2001) (Whitbeck, J., dissenting).
In People v Fetterley, 229 Mich App 511, 545; 583 NW2d 199 (1998), this Court held
that in order for a defendant to be entitled to a new trial due to juror misconduct, “[p]rejudice
must be shown, or facts clearly establishing the inference that it occurred from what was said or
done.” In People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960), the Court quoted 39 Am
Jur, New Trial, § 70, p 85, and observed:
“[I]t is well established that not every instance of misconduct in a juror
will require a new trial. The general principle underlying the cases is that the
misconduct must be such as to affect the impartiality of the jury or disqualify
them from exercising the powers of reason and judgment. A new trial will not be
granted for misconduct of the jury if no substantial harm was done thereby to the
party seeking a new trial, even though the misconduct is such as to merit rebuke
from the trial court if brought to its notice.”
Defendant argues that he need not establish prejudice because the juror purposely lied.
Even if an intentional lie could support an inference of prejudice under Fetterley, the record does
not support defendant’s argument that the juror intentionally lied.
As the trial court observed, the affidavits that defendant submitted in support of his
motion failed to show that the juror was aware of her nephew’s pending criminal matter, nor was
there any evidence that the juror was aware that her relative’s death by a drunk driver was
something that she should have revealed when asked whether she or a family member had been
the victim of a crime. Because defendant’s offer of proof failed to show that the juror purposely
lied, the trial court did not abuse its discretion in denying defendant’s motion for a new trial and
request for an evidentiary hearing on this issue.
Next, defendant argues that the trial court erred in ruling that he would be required to
waive the attorney-client privilege before he could call his former attorney, Marlon Evans, as a
witness at trial. This Court reviews a trial court’s decision to admit or exclude evidence for an
abuse of discretion. Any preliminary questions of law are reviewed de novo. People v
Washington, 468 Mich 667, 670-671; 664 NW2d 203 (2003).
The record discloses that defendant sought to call Evans as a witness to rebut another
witness’s testimony regarding allegations of bribery and witness tampering. The trial court ruled
that defendant would be required to waive the attorney-client privilege if Evans was called as a
witness. Defendant was unwilling to waive the privilege, so Evans was not called.
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Relying on People v Squire, 123 Mich App 700; 333 NW2d 333 (1983), defendant argues
that he should not have been required to waive the attorney-client privilege, because Evans did
not intend to testify regarding communications between himself and defendant. In Squire, this
Court stated:
Michigan has long recognized that a party does not waive the attorneyclient privilege by presenting his or her attorney as a witness to testify regarding
matters not communicated by the client. Steketee v Newkirk, 173 Mich 222, 232;
138 NW 1034 (1912); In re Dalton Estate, 346 Mich 613, 620-621; 78 NW2d 266
(1956). Here, defense counsel sought the testimony of attorney Minock to rebut
the prosecutor’s argument that the testimony of the defendant’s sister and her two
friends was a recent fabrication, dreamed up for the trial. Given the fact that the
three were eyewitnesses to the shooting and that their testimony directly
contradicted the testimony of witness Hudson Ray, Jr., we find that the error
cannot be harmless. [Id. at 706.]
However, as explained in Kubiak v Hurr, 143 Mich App 465, 473; 372 NW2d 341 (1985)
(citations omitted):
Although either can assert the privilege, only the client may waive the
privilege. . . . Professor Wigmore instructs that the client’s offer of his own
testimony in the case at large is not a waiver of the privilege. Otherwise the
privilege of consultation would be exercised only at the cost of closing the client’s
mouth on the stand. Nor will the client’s offer of his own testimony as to specific
facts which he has happened to communicate to the attorney operate as a waiver
of the privilege. It is only where the client offers his own or his attorney’s
testimony as to a specific communication to the attorney that the privilege is
waived as to all communications to the attorney on the same matter. This is to
ensure that the privilege is used only as an incidental means of defense and not as
a means of attack. For the same reason, the client’s offer of his own or his
attorney’s testimony to a part of any communication is a waiver as to the whole of
that communication. 8 Wigmore, Evidence, § 2327, p 637 (McNaughton rev ed,
1961).
Furthermore, the attorney-client privilege protects communications regarding past
wrongdoing, but does not apply to ongoing or future wrongdoing. Where the attorney-client
privilege advances a criminal enterprise or fraud, the privilege will not apply. People v Paasche,
207 Mich App 698, 705-706; 525 NW2d 914 (1994). The crime-fraud exception applies where
the prosecution shows “that there is a reasonable basis to (1) suspect the perpetration or
attempted perpetration of a crime or fraud and (2) that the communications were in furtherance
thereof.” Id. at 707.
Here, we agree that the trial court erred in stating that defendant would be required to
waive the attorney-client privilege, regardless of the substance of Evans’s proposed testimony.
As the foregoing authorities indicate, waiver depends on the purpose and nature of the testimony.
However, considering the purpose for which Evans’s testimony was offered, the trial court
correctly determined that the privilege would be waived. We will not reverse where the trial
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court reaches the correct result. People v Lyon, 227 Mich App 599, 612-613; 577 NW2d 124
(1998).
According to both the trial record and counsel’s arguments when discussing this issue at
sentencing, counsel sought to call Evans as a witness only to testify regarding the allegations of
witness tampering and bribery. Because these allegations involved ongoing criminal matters, the
crime-fraud exception to the privilege would have applied and defendant could not call Evans as
a witness without waiving the attorney-client privilege. We note that defendant filed a motion
for a new trial in which he offered additional reasons for calling Evans as a witness that would
not have required waiver of the privilege. However, he did not identify these other reasons on
the record at trial. Moreover, the trial court agreed to allow defendant to make a separate record
on this issue, but he did not do so. Under these circumstances, appellate relief is not warranted.
Defendant next argues that the trial court erred by allowing Ronald Wade to testify that
while Stewart was testifying at Clark’s preliminary examination, a woman in the courtroom
looked at Stewart and made a slashing motion with her hand across her throat. Defendant argues
that it was improper to allow this testimony because there was no evidence connecting him to the
woman who made the threat. See People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996);
People v Long, 144 Mich 585; 108 NW 91 (1906).
The prosecutor did not offer the evidence to prove defendant’s consciousness of guilt, but
instead to explain the change in Stewart’s testimony after the threat was made. “A witness’
motivation for testifying is always of undeniable relevance and a [party] is entitled to have the
jury consider any fact that may have influenced the witness’ testimony.” People v Minor, 213
Mich App 682, 685; 541 NW2d 576 (1995). Because the testimony was highly probative to
show a possible influence on Stewart’s testimony, and it was established that another woman, not
defendant, was responsible for the threat, the probative value of this testimony was not
substantially outweighed by the danger of unfair prejudice. MRE 403; People v Sabin (After
Remand), 463 Mich 43, 57-58; 614 NW2d 888 (2000).
Next, defendant argues that the prosecutor engaged in misconduct throughout the trial.
The test for prosecutorial misconduct is whether the defendant was denied a fair trial. People v
Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Claims of prosecutorial misconduct
are decided case by case and the challenged comments must be read in context. People v
McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). Defendant concedes that he did not
preserve many of his clams of misconduct with an appropriate objection at trial. Unpreserved
claims of misconduct are reviewed for plain error affecting substantial rights. People v Carines,
460 Mich 750, 761-767; 597 NW2d 130 (1999); People v McLaughlin, 258 Mich App 635, 645;
672 NW2d 860 (2003). Reversal is not warranted if a cautionary instruction could have cured
any prejudice resulting from the prosecutor’s remarks. People v Stanaway, 446 Mich 643, 687;
521 NW2d 557 (1994).
Although defendant raises several claims of misconduct, he does not identify the specific
factual basis for each claim asserted. He merely provides a list of citations to the record, but
without identifying the specific remarks or conduct that he believes were improper, and without
linking any specific remarks or conduct to his individual claims of misconduct. A defendant
may not leave it to this Court to search for factual support to sustain or reject his position.
People v Traylor, 245 Mich App 460, 464; 628 NW2d 120 (2001). Further, a party may not
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simply announce a position or assert error and leave it to this Court to discover and rationalize
the basis for his claims. People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006).
To the extent that defendant argues that the prosecutor improperly offered argument or
evidence that Marlon Evans was involved in witness tampering while representing defendant,
and offered testimony from Demetria Brue, the prosecutor at defendant’s first trial, we find no
error. “A defendant’s right to a fair trial may be violated when the prosecutor interjects issues
broader than the guilt or innocence of the accused.” People v Rice (On Remand), 235 Mich App
429, 438; 597 NW2d 843 (1999). But prosecutorial misconduct may not be predicated on goodfaith efforts to admit evidence. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999).
The prosecutor is entitled to attempt to introduce evidence that he legitimately believes will be
accepted by the trial court, so long as it does not prejudice the defendant. Id. at 660-661. The
evidence of witness tampering was admitted by the trial court and the prosecutor had a goodfaith reason for offering the evidence, because a witness testified that she was told by
defendant’s former attorney to testify falsely in order to discredit Stewart. Further, as explained
previously, the evidence of the threats against Stewart was admissible to show an attempt to
influence her testimony. Thus, the prosecutor properly could comment on this evidence at trial.
Brue’s testimony about her observations of Stewart at defendant’s first trial was not
improper prosecutorial vouching. Brue was acting as a witness, not as an attorney for the state in
this case. Her testimony properly was limited to matters of which she had personal knowledge
as a witness.
We find no merit to defendant’s claim that the prosecutor offered the evidence of possible
witness tampering and threats against Stewart for the improper purpose of attempting to inflame
the jurors’ passions or appeal to their sympathies. As discussed previously, the evidence was
offered for a proper purpose and its admission did not constitute misconduct.
Defendant next argues that the trial court erroneously admitted Stewart’s testimony from
defendant’s first trial, because defendant was not afforded an opportunity to cross-examine
Stewart at the first trial.
In People v Ho, 231 Mich App 178, 189-190; 585 NW2d 357 (1998), this Court
explained:
A defendant has a constitutional right to confront the witnesses against
him, US Const, Am VI; Const 1963, art 1, § 20. If a defendant has been limited
in his ability to cross-examine the witnesses against him, his constitutional right
to confront witnesses may have been violated. People v Cunningham, 215 Mich
App 652, 657; 546 NW2d 715 (1996). Yet, there are limits to this right to
confront witnesses. The Confrontation Clause “ ‘guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.’ ” People v Bushard, 444
Mich 384, 391; 508 NW2d 745 (1993) (Boyle, J.), quoting Delaware v Fensterer,
474 US 15, 20; 106 S Ct 292; 88 L Ed 2d 15 (1985). Rather, the Confrontation
Clause protects the defendant’s right for a reasonable opportunity to test the
truthfulness of a witness’ testimony. People v Adamski, 198 Mich App 133, 138;
497 NW2d 546 (1993). [Emphasis in original.]
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“The Confrontation Clause is violated when a defendant is ‘prohibited from engaging in
otherwise appropriate cross-examination designed . . . “to expose to the jury the facts from which
jurors . . . could appropriately draw inferences relating to the reliability of the witness.” ’ ” Cotto
v Herbert, 331 F3d 217, 249 (CA 2, 2003), quoting Delaware v Van Arsdall, 475 US 673, 680;
106 S Ct 1431; 89 L Ed 2d 674 (1986), and Davis v Alaska, 415 US 308, 318; 94 S Ct 1105; 39
L Ed 2d 347 (1974).
But violations of the Confrontation Clause are subject to a harmless error analysis. Cotto,
supra at 253. The following series of factors should be considered in deciding if the error was
harmless:
[T]he importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and . . . the overall strength of
the prosecution’s case. [Van Arsdall, supra at 684.]
Initially, we note that this Court previously decided in a prior appeal that Stewart’s
testimony from defendant’s first trial was admissible as substantive evidence. People v
Harrington, unpublished order of the Court of Appeals, entered October 6, 2005 (Docket No.
265614). Accordingly, that decision is the law of the case. See Freeman v DEC Int’l, Inc, 212
Mich App 34, 37-38; 536 NW2d 815 (1995).
Furthermore, it is apparent that any error in admitting Stewart’s testimony from
defendant’s first trial was harmless beyond a reasonable doubt. Stewart’s testimony from the
first trial was generally cumulative of Stewart’s testimony from the preliminary examinations.
Defendant and codefendant Clark were afforded the right to cross-examine Stewart when she
testified at the preliminary examinations. The only distinction was that, at the first trial, Stewart
reached a point where she refused to testify any further. Stewart’s refusal to cooperate was
likewise cumulative of her testimony in this trial. Stewart was available for cross-examination
by defense counsel at this trial and defendant had the opportunity to fully question Stewart about
her previous testimony before this jury and any other matters he wanted to explore. He was
given the opportunity to fully test her testimony in this case. Accordingly, any error was
harmless.
Defendant next argues that the trial court improperly precluded him from attacking the
credibility of the officer in charge. A trial court’s limitation on cross-examination is reviewed
for an abuse of discretion. People v Sexton, 250 Mich App 211, 221; 646 NW2d 875 (2002).
The trial court has broad discretion in imposing reasonable limits on cross-examination in order
to avoid the harassment of witnesses, confusion of the issues, repetitive questioning, or the
admission of marginally relevant evidence. Adamski, supra at 138. “Cross-examination may be
denied with respect to collateral matters bearing only on general credibility . . . , as well as on
irrelevant issues.” People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1992).
Defendant failed to establish the relevancy to this case of the evidence regarding
Towanda Moore and the registration card at the Rancho Motel. Further, the trial court did not
completely foreclose examination regarding the officer’s alleged misconduct in another case.
Rather, the court expressed a willingness to allow inquiry if a proper foundation could be
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established during the officer’s testimony. Defendant did not revisit the issue later. On this
record, no error has been shown.
Defendant next argues that the trial court erred by admitting Stewart’s entire videotaped
police statement. Contrary to what defendant asserts, the record discloses that the statement was
admitted only for impeachment, not as substantive evidence. In People v Jenkins, 450 Mich 249;
537 NW2d 828 (1995), the Court explained that when a statement is offered to impeach a
witness and the statement contains other prejudicial information, only that portion of the
statement that is inconsistent should be admitted. Id. at 264. Defendant was offered the
opportunity below to explain how portions of the statement would be unduly prejudicial and
should not be admitted, but he failed to do so. Similarly, on appeal, defendant has not provided
examples of any portions of the statement that he believes were unduly prejudicial. Defendant
has failed to establish that the trial court abused its discretion by admitting Stewart’s police
statement.
Lastly, defendant argues that there was insufficient evidence to convict him of firstdegree premeditated murder. We disagree.
An appellate court’s review of the sufficiency of the evidence to sustain a conviction
should not turn on whether there was any evidence to support the conviction, but whether there
was sufficient evidence to justify a rational trier of fact in finding the defendant guilty beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 513; 489 NW2d 748 (1992), amended 441
Mich 1201 (1992). The evidence must be reviewed in a light most favorable to the prosecution.
Id. at 514-515.
To convict defendant of first-degree murder, the prosecution was required to prove that
defendant intentionally killed the victim and that the killing was premeditated and deliberated.
Premeditation and deliberation require sufficient time to allow the defendant to take a second
look. People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995).
Stewart’s prior testimony under oath properly could be considered as substantive
evidence. The evidence indicated that defendant and Clark were involved in an argument with
the victim during which Clark threatened to kill the victim if he did not give him money.
Thereafter, both defendant and Clark physically fought with the victim. While the evidence
showed that Clark had possession of a gun just before the victim was shot, the prosecutor argued
that defendant was guilty as an aider and abettor. To prove aiding and abetting, the prosecutor
was required to prove the following:
(1) the crime charged was committed by the defendant or some other
person, (2) the defendant performed acts or gave encouragement that assisted 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. [Carines, supra at 768, quoting
People v Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995).]
Viewed in a light most favorable to the prosecution, the evidence was sufficient to enable
the jury to find beyond a reasonable doubt that defendant assisted Clark with knowledge of
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Clark’s intent to kill the victim. The evidence was sufficient to support defendant’s conviction
of first-degree murder.
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
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