PEOPLE OF MI V HYLAND STEPHEN STERLING
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 22, 2008
Plaintiff-Appellee,
v
No. 270838
Kalamazoo Circuit Court
LC No. 04-002417-FC
HYLAND STEPHEN STERLING,
Defendant-Appellant.
Before: Wilder, P.J., and Saad and Smolenski, JJ.
PER CURIAM.
After defendant’s first trial ended in a hung jury, a second jury convicted defendant of
first-degree felony murder, MCL 750.316(1)(b), and possession of a firearm during the
commission of a felony, MCL 750.227b, for the July 25, 1995, shooting death of Robert
O’Keefe. The court sentenced defendant to life in prison for the murder conviction and a
consecutive two-year term of imprisonment for the felony-firearm conviction. He appeals, and
we affirm.
I. Sufficiency of the Evidence
Defendant argues that the evidence at trial was insufficient to support his convictions.
The elements of felony murder are: (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 would be the probable result; (3) while committing, attempting to
commit, or assisting in the commission of an enumerated offense, including larceny. People v
Smith, 478 Mich 292, 318-319; 733 NW2d 351 (2007). The evidence at trial established that
O’Keefe was killed by a gunshot to his face that was fired from close range, and that O’Keefe’s
briefcase, which contained a large amount of cash, was missing after the offense. On appeal,
defendant does not argue that the evidence failed to support the jury’s determination that
O’Keefe was murdered during the commission of a larceny. Rather, he argues that the evidence
was insufficient to identify him as the killer. We disagree.
In reviewing a challenge to the sufficiency of the evidence, this Court must view the
evidence in the 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 Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). This Court should not
interfere with the factfinder’s role of determining the weight of evidence or the credibility of
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witnesses. People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992), amended 441 Mich 1201
(1992). This Court recognizes that it is the jurors’ role to determine what inferences can be fairly
drawn from the evidence, and to determine the weight to be accorded to the inferences. People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Circumstantial evidence and reasonable
inferences arising from the evidence can constitute satisfactory proof of the elements of the
crime. People v Fennell, 260 Mich App 261, 270; 677 NW2d 66 (2004). All conflicts in the
evidence must be resolved in favor of the prosecution. People v Fletcher, 260 Mich App 531,
562; 679 NW2d 127 (2004).
The evidence at trial established that defendant and O’Keefe planned to purchase a bar
known as The Warehouse. Defendant knew that an investor had given O’Keefe a large sum of
money to invest in the purchase, but was pressuring him to return the money. The investor’s
attorney testified that he was in the process of arranging for repayment of the money. Another
witness testified that a few days before O’Keefe’s death, defendant was looking for O’Keefe and
was angry because he believed that O’Keefe was backing out of the deal to buy The Warehouse.
James Rushmore, defendant’s former cellmate, testified that defendant told him that one of his
associates was killed for backing out of the deal to purchase The Warehouse.1
Defendant admitted that he saw O’Keefe retrieve money, which he assumed was part of
the investment money, from O’Keefe’s car trunk on the night before the offense. Further,
Christina Laing, O’Keefe’s live-in girlfriend, stated that defendant was with her, standing at the
trunk of O’Keefe’s car, when O’Keefe took a large sum of the money from a briefcase and split
it with defendant about a month before the offense. Defendant admitted receiving the money.
The bullets recovered from O’Keefe’s body were .44-caliber, and witnesses testified that
O’Keefe owned a .44-caliber handgun. Tricia Emme, O’Keefe’s sister, testified that during an
earlier bank robbery committed by defendant and O’Keefe, defendant carried O’Keefe’s .44caliber handgun. Christina Laing and O’Keefe’s mother both testified that O’Keefe always kept
his guns in his briefcase, which was always in his car trunk. Laurie Laing, one of O’Keefe’s
roommates, testified that when O’Keefe showed her the investment money in his briefcase, she
saw the .44-caliber handgun in it. Defendant admitted that he knew that O’Keefe owned two
guns. From this evidence, the jury could reasonably infer that defendant was aware that O’Keefe
kept the large sum of money and his guns in his briefcase, which was kept in the trunk of his car.
The jury could also infer that the .44-caliber gun in O’Keefe’s briefcase was the weapon that was
used to shoot O’Keefe.
Christina Laing testified that on July 25, 1995, the day of the offense, O’Keefe was alive
when she left the house at 10:30 a.m. and was dead when she returned around 2:30 p.m. Officer
Higby testified that he arrived at the house at 2:38 p.m. There was conflicting evidence whether
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We disagree with defendant’s argument that there was no evidence of motive. The evidence
that defendant was aware that O’Keefe received a large sum of money, that he was angry at
O’Keefe because he believed that O’Keefe was attempting to back out of the deal to purchase
The Warehouse, and that O’Keefe was considering giving back the intended purchase money,
was sufficient to establish a motive for the offense. Regardless, the prosecution is not required to
prove motive in order to establish the elements of the crime.
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gunshots were heard before or after noon. Defendant did not have an alibi for the morning
hours. Justin Roettger, O’Keefe’s neighbor, saw a man matching defendant’s general description
looking into a car in O’Keefe’s driveway on the morning of the offense. He drew a sketch of the
shirt that the man was wearing. Three witnesses identified the shirt as similar to one they had
seen defendant wear. Roettger testified that when he saw defendant at the house later that day,
he looked like the man he saw earlier, except that his hair was shorter. Emme stated that
defendant had said that he cut his hair that day. Several witnesses testified that defendant did not
always have a clean-shaven head. Furthermore, defendant’s fingerprints were found on both
sides of O’Keefe’s car, as well as the trunk. From this evidence, the jury could reasonably infer
that defendant was the person who was observed outside O’Keefe’s house on the morning of the
offense, during a time span for which defendant did not have an alibi.
Christina Laing also testified that defendant overheard her tell O’Keefe that she had to
work on the day of the offense. It was undisputed that defendant and O’Keefe were good friends
at the time. The jury could have reasonably inferred that defendant knew that O’Keefe’s other
roommates and Christina Laing would be at work at the time of the offense. Although there was
no direct evidence that defendant had been in the upstairs portion of the home before O’Keefe
was killed, Christina and Laurie Laing both testified that defendant came up the stairs on the
night of the offense looking for O’Keefe’s blue book. Christina Laing also testified that
defendant had been to O’Keefe’s house before and sat near the kitchen table where the
roommates kept their car keys and where Laurie Laing left her backpack. O’Keefe’s briefcase
where he kept his money and Laurie Laing’s backpack were both missing after O’Keefe was
killed. Additionally, both items were found in a dumpster near the two places that established
defendant’s afternoon alibi. Furthermore, defendant asked his live-in girlfriend, Laura Schmidt,
to move his own briefcase before the police searched his home, and Rushmore testified that
defendant admitted to being at the scene when O’Keefe was shot. From this evidence, the jury
could reasonably infer that defendant was familiar with O’Keefe’s house, was aware that
O’Keefe would be the only person at the house on the morning of the offense, and knew where
the car keys were kept, giving him access to O’Keefe’s car where O’Keefe kept his briefcase.
The foregoing evidence and reasonable inferences arising from the evidence, viewed in a
light most favorable to the prosecution, is sufficient to enable the jury to determine beyond a
reasonable doubt that defendant was the person who murdered O’Keefe during the commission
of a larceny. A person matching defendant’s description was seen looking into O’Keefe’s car,
on which defendant’s fingerprints were found, near the time of the offense. Defendant had no
alibi for the morning hours, which were within the timeframe in which the offense could have
been committed. There was also evidence that defendant knew where O’Keefe kept his car keys,
knew O’Keefe would be alone at the time of the offense, and knew where O’Keefe kept his guns
and the investment money. O’Keefe was killed with the same caliber handgun as the one he kept
in his briefcase. The briefcase and Laurie Laing’s backpack were both taken from the scene.
These items were recovered in the vicinity of defendant’s afternoon alibi, but O’Keefe’s money
and the .44-caliber handgun that were inside the briefcase were never recovered. Finally,
defendant’s former cellmate testified that defendant made statements indicating that an associate
was killed for backing out of the deal to purchase The Warehouse. Although defendant argues
that many of the witnesses against him were biased, the credibility of the witnesses was for the
jury to resolve. The evidence was sufficient to support defendant’s convictions.
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II. Great Weight of the Evidence
Defendant also argues that the jury’s verdict is against the great weight of the evidence
and that the trial court erred in denying his motion for a new trial on this ground. We review the
trial court’s decision for an abuse of discretion. People v Daoust, 228 Mich App 1, 16; 577
NW2d 179 (1998).
A new trial may be granted if a verdict is against the great weight of the evidence. MCR
2.611(A)(1)(e). The test is whether the evidence preponderates so heavily against the verdict
that it would be a miscarriage of justice to allow the verdict to stand.2 People v Musser, 259
Mich App 215, 218-210; 673 NW2d 800 (2003).
Defendant’s great weight argument focuses on issues involving witness credibility, the
reliability of the witnesses’ testimony in light of the fact that the offense was committed more
than ten years earlier, the existence of conflicting evidence regarding whether defendant was at
O’Keefe’s house at the time of the offense, and the lack of direct evidence. Conflicting
testimony and questions of witness credibility are insufficient grounds for granting a new trial.
Id. at 219. The court must defer to the jury’s determination unless directly contradictory
testimony was so far impeached that it was deprived of all probative value, or the evidence
contradicted indisputable physical facts or defied physical realities. Id. Although there was
conflicting evidence at trial, the evidence supporting defendant’s guilt had probative value. As
discussed previously, the circumstantial evidence, and the reasonable inferences arising from it
was based on multiple sources, from the testimony of several witnesses. The facts that support
defendant’s conviction do not preponderate so heavily against the verdict that it would be a
miscarriage of justice to allow it to stand. Accordingly, the trial court did not abuse its discretion
in denying defendant’s motion for a new trial on this ground.
III. Ineffective Assistance of Counsel
Defendant maintains that he was denied the effective assistance of counsel because his
trial counsel made several errors in representing him at trial.
The trial court denied defendant’s motion for a new trial on this ground after conducting
an evidentiary hearing pursuant to People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
The question of whether a defendant has been deprived of the effective assistance of counsel
presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). The trial court must first find the facts and then decide whether those
facts constitute a violation of the defendant’s constitutional right to the effective assistance of
counsel. We review the trial court’s factual findings for clear error, and its constitutional
determinations de novo. Id.
2
Defendant asserts that the judiciary should adopt a more stringent standard of review in cold
cases, particularly when the evidence is solely circumstantial. However, defendant offers no
support for this argument other than his assertion that the passage of time results in unreliable
memories. We decline to make his argument for him. People v Martin, 271 Mich App 280, 315;
721 NW2d 815 (2006).
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The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const, Am VI; Const 1963, art 1, § 20, is the right to the effective assistance of counsel. United
States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Pubrat, 451
Mich 589, 594; 548 NW2d 595 (1996). To establish ineffective assistance of counsel, a
defendant must show that counsel’s deficient performance denied him the Sixth Amendment
right to counsel and that, but for counsel’s errors, the result of the proceedings would have been
different. People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). Effective assistance
of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v
Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004).
A. Prison Photograph
Defendant contends that his trial counsel was ineffective for failing to object to the
prosecutor’s use of a photograph to depict the length of defendant’s hair at the time of the
offense. The parties agree that the photograph was taken after defendant’s arrest for bank
robbery, which defendant mentioned in his testimony at trial. Although the date the photograph
was taken was not revealed to the jury, neither did the prosecutor suggest that the photograph
was taken in 1995.
Additionally, we fail to see how defendant was prejudiced. The witnesses who were
shown the photograph stated that defendant’s hair was longer in 1995 than it was at the time of
trial, but shorter than it appeared in the picture. Defendant testified that the photograph did not
accurately depict his hairstyle in 1995 and he introduced photographs of his own from the fall
and winter of 1994, and the spring of 1995, showing his hairstyle at the time. Accordingly,
failure to object to the photograph did not constitute ineffective assistance.
B. Autopsy Photographs
Also, defendant says that counsel was ineffective for failing to object to the admission of
autopsy photographs. He asserts that the photographs were unnecessary, because he did not
dispute the cause of O’Keefe’s death. However, the photographs were relevant to explain the
pathologist’s testimony that powder stippling around the wounds and a grazing wound on
O’Keefe’s hand revealed that O’Keefe’s hand was near his face when he was shot in the cheek at
close range. Although defendant did not dispute the cause of O’Keefe’s death, the prosecutor
may permissibly introduce all relevant evidence, including evidence that is probative of a matter
that the defendant does not dispute. People v Mills, 450 Mich 61, 71; 537 NW2d 90991995),
mod 450 Mich 1212 (1995). The prosecution bears the burden of proving all elements of the
crime beyond a reasonable doubt, regardless of whether a defendant disputes or stipulates to an
element. Id. at 69-70. Accordingly, the photographs were admissible, and defense counsel did
not err in failing to object.
Defendant also avers that the photographs were prejudicial because their gruesome nature
only served to inflame the jury. However, the probative value of the photographs outweighed
the potential for prejudice because the powder stippling indicated a close range shot, which
showed intent to kill. Gruesome photographs need not be excluded unless their probative value
is substantially outweighed by the danger of unfair prejudice, even if they tend to arouse jurors’
passions. Id. at 75-77. Although some of the jurors might have found the photographs
disturbing, they are not so gruesome that they would have caused the jurors to abandoned their
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duty to follow their instructions to consider the evidence as a whole. Accordingly, defense
counsel was not ineffective for not objecting to their admission.
C. Bad Acts Evidence
Defendant says that defense counsel was ineffective for failing to challenge the
prosecutor’s use of other bad acts evidence, specifically defendant’s involvement in a bank
robbery. Defense counsel explained that he used this evidence to explain why defendant was at
the murder scene looking for O’Keefe’s day planner and why he asked Schmidt to move his
briefcase before the police searched his home, conduct that a jury might interpret as evidence of
a cover-up or consciousness of guilt.3 Defense counsel also used the evidence to attack Emme’s
credibility, whose testimony was generally damaging to defendant. Although she participated in
the bank robbery, she was not charged in the matter after she helped the FBI build its case
against defendant. The trial court did not clearly err in finding that the evidence was helpful to
defendant’s case and that defense counsel’s decision not to object to its admission was trial
strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
D. Babbie Booker and Detective Amy Hicok
Defendant raises several claims regarding two potential witnesses. Defendant argues that
defense counsel was ineffective for failing to conduct an investigation regarding Babbie Booker.
Booker testified at defendant’s posttrial hearing that she saw two men, one white and one black,
exit O’Keefe’s house around noon on the day of the offense. She stated that one of them was
carrying a gun and a black bag. She stated that defendant was not the black man she saw.
However, the evidence presented at the hearing also showed that Booker gave several statements
to the police that contained significant inconsistencies, including the number of persons she saw,
their race, and what they were carrying. Booker also had a criminal record and admittedly had a
severe drinking problem in 1995, which lasted until at least 2006.
Defense counsel obtained location information from the police before trial and
unsuccessfully attempted to find Booker on his own. When he tried to locate her before the first
trial, his investigator was unsuccessful and informed him that chances of finding her were slim.
Counsel explained that he did not request more aggressive police efforts in locating Booker or
force such efforts by requesting a due diligence hearing because he wanted to locate her before
the police did. He was concerned that if the police located her first, she would have given them
another potentially inconsistent or unfavorable statement. Additionally, her general description
of the black man she saw exiting O’Keefe’s house, which she gave to the police in 1995,
matched defendant’s description. Counsel testified that he was also concerned about the police
finding a witness that would turn out to be helpful to the prosecution. Therefore, he decided not
to put more effort into finding Booker.
The trial court did not clearly err in finding that defense counsel had legitimate concerns
regarding Booker’s credibility and properly concluded that he made a strategic decision not to
3
Defendant claimed that his briefcase contained evidence of the bank robbery and he was
concerned that O’Keefe’s day planner book did too.
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pursue her as a witness or request a due diligence hearing that might have led to more police
involvement. This Court will not substitute its judgment for that of counsel regarding matters of
trial strategy, nor will it assess counsel’s competence with the benefit of hindsight. People v
Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004). Even strategic choices made after an
incomplete investigation are reasonable to the extent that reasonable professional judgments
support the limitation on investigation. Wiggins v Smith, 539 US 510, 521-522, 528; 123 S Ct
2527, 2535, 2539; 156 L Ed 2d 471, 485, 489 (2003).
Defendant also argues that the prosecution and the police failed to provide reasonable
assistance to locate Booker, contrary to their duties under MCL 767.40a(5), which provides that
“[t]he prosecuting attorney or investigative law enforcement agency shall provide to the
defendant, or defense counsel, upon request, reasonable assistance, including investigative
assistance, as may be necessary to locate and serve process upon a witness.” The police
provided defense counsel with an address for Booker. The law does not require a hearing to
determine if the assistance provided was reasonable when there is no allegation that it was not.
People v Cook (On Remand), 266 Mich App 290, 295-296; 702 NW2d 613 (2005). Here, there
was no request for a hearing. Thus, the question is whether defense counsel was ineffective for
failing to request a due diligence hearing.
Defendant asserts that the trial court erred in finding that the prosecution exercised due
diligence in attempting to locate Booker, improperly shifted the burden of proving prejudice
from the lack of due diligence to defendant, and improperly made its own assessment of
Booker’s credibility. Because defense counsel advanced a strategic reason for not requesting a
due diligence hearing, the trial court had to determine if counsel’s decision was reasonable. The
question whether the police assistance was reasonable was not addressed and did not need to be
addressed by the trial court. Therefore, the trial court did not shift any burden to defendant. The
court simply stated that had defendant desired more assistance, it would have been provided.
The trial court’s comments regarding Booker’s credibility were made in the context of
explaining that defense counsel’s decision not to pursue her, or request additional police efforts
to locate her, was reasonable. As previously explained, the trial court did not clearly err in
finding that counsel reasonably was concerned about Booker’s credibility, and that he did not
request a due diligence hearing as a matter of trial strategy.
Defendant further argues that counsel was ineffective for failing to call Detective Amy
Hicok as a witness. We disagree. Detective Hicok could not say whether defendant was the
person she saw walking near the crime scene carrying a backpack-type bag, but her general
description of the man she saw matched defendant and defendant did not have an alibi for the
timeframe during which Detective Hicok saw the man. The trial court did not err in finding that
counsel’s decision not to call her as a witness was reasonable trial strategy. Her identification
testimony was equivocal and there was the possibility that her testimony might actually help the
prosecution.
Defendant argues that counsel’s trial strategy regarding Booker and Detective Hicok was
not reasonable because it deprived him of a valid defense. Defendant asserts that their testimony
was direct evidence that he was not at O’Keefe’s house at the time of the offense. The failure to
call witnesses constitutes ineffective assistance of counsel only if it deprives the defendant of a
substantial defense. People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), vacated
in part on other grounds 453 Mich 902 (1996). A substantial defense is one that might have
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made a difference in the outcome of the trial. Id. The trial court concluded that defendant was
not prejudiced by the absence of the witnesses’ testimony.
The defense theory at trial was that defendant was elsewhere at the time of the offense,
and defendant was able to present that defense at trial. Defense counsel decided to present the
defense without Booker or Detective Hicok. The witnesses’ testimony did not support a
different defense, and we do not believe that their testimony would have shored up the defense to
such a degree that had the jury heard it, it might have decided the case differently. Booker had
significant credibility issues. Her police statements were inconsistent with each other and with
her testimony at the post-trial evidentiary hearing. Additionally, she had an admitted substance
abuse problem at the time of the offense and for years afterward that could have affected her
memory. Detective Hicok could not unequivocally state that defendant was not the person she
saw near the crime scene. The testimony of both witnesses could have potentially helped the
prosecution, because they gave descriptions of a person that matched defendant’s general
description.
Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for
a new trial.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Henry William Saad
/s/ Michael R. Smolenski
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