PEOPLE OF MI V MICHAEL DESHAWN THOMPSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 28, 2008
Plaintiff-Appellee,
v
No. 278172
Calhoun Circuit Court
LC No. 2006-002703-FC
MICHAEL DESHAWN THOMPSON,
Defendant-Appellant.
Before: Hoekstra, P.J., and Cavanagh and Zahra, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions for first-degree murder, MCL
750.316(1)(a), carrying a concealed weapon, MCL 750.227, discharging a weapon from a motor
vehicle, MCL 750.234(a), and two counts of possession of a firearm during the commission of a
felony, MCL 750.227b. We affirm.
Defendant’s convictions arose from a shooting that occurred following an altercation at
Green’s Tavern in Battle Creek, Michigan. That altercation was a shoving match which led to
defendant and his companion, Terrance “Jack” Stevens, being ejected. Rather than leave,
defendant and Stevens waited outside for their adversaries. After the tavern closed, a fight
ensued with the outnumbered defendant and Stevens receiving a beating. Then defendant and
Stevens called a friend, Leon Mohead, for a gun. Mohead met defendant and Stevens at an afterhours place called the Warehouse. At the Warehouse, defendant saw two of his adversaries from
Green’s Tavern. Defendant, Stevens, and Mohead later followed these men to an apartment
complex, where defendant fired several shots from inside a car. One of the men who fought with
defendant at Green’s Tavern subsequently died from a single gunshot wound to the chest.
On appeal, defendant argues that the trial court erroneously admitted hearsay evidence
through the testimony of Charles Ousley. Defendant asserts that statements by Stevens to
Mohead, as told to Ousley (hearsay within hearsay), as well as statements by Mohead to Ousley,
should have been excluded. We review a trial court’s decision to admit evidence for an abuse of
discretion, but underlying questions of law are subject to de novo review. People v Washington,
468 Mich 667, 670-671; 664 NW2d 203 (2003).
Hearsay is an unsworn, out-of-court statement, which is offered to demonstrate the truth
of the matter asserted. MRE 801(c); People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007).
Generally, hearsay is inadmissible unless it falls under one of the hearsay exceptions set forth in
-1-
the Michigan Rules of Evidence. MRE 802; Stamper, supra. However, a statement does not
constitute hearsay where the statement is not offered for the truth of the matter asserted. Shuler v
Mich Physicians Mut Liability Co, 260 Mich App 492, 516; 679 NW2d 106 (2004); see, also,
People v Jones, 228 Mich App 191, 206-207; 579 NW2d 82, modified in part on other grounds
458 Mich 862 (1998) (a statement offered to demonstrate state of mind was admissible
nonhearsay); People v Flaherty, 165 Mich App 113, 122; 418 NW2d 695 (1987) (statements
offered to demonstrate the effect on the listener were admissible nonhearsay).
First we consider Stevens’ statements to Mohead, as told by Ousley, and conclude that
the statements were admissible nonhearsay. Ousley testified that Mohead told him the following
while they were incarcerated together: Stevens called Mohead, stating “that they got into it,” and
asked Mohead to bring a gun to Battle Creek, because “he had some problems.” The
significance of Stevens’ statements was to show that Mohead, at Stevens’ request, actually went
to Battle Creek with a gun; thus, Stevens’ statements were admissible nonhearsay offered for the
effect on the listener—Mohead. See id. They were not offered to prove the truth of the matter
asserted therein. However, the ultimate admissibility of Stevens’ statements necessarily turns on
the admissibility of Mohead’s statements to Ousley.
While Mohead was unavailable as a witness because he was “absent from the hearing and
the proponent of a statement has been unable to procure the declarant’s attendance,” the
prosecution was required to demonstrate due diligence to procure his attendance before offering
his statements to Ousley. See MRE 804(a)(5). The test for due diligence is one of
reasonableness, “i.e., whether diligent good-faith efforts were made to procure the testimony, not
whether more stringent efforts would have produced it.” People v James (After Remand), 192
Mich App 568, 571; 481 NW2d 715 (1992).
Mohead testified at the preliminary examination, but he thereafter absconded while on
parole. Defendant, even on appeal, does not provide any evidence that Mohead was readily
available to testify at the instant trial. On the record, the trial court did not engage in in-depth
fact finding with respect to the prosecution’s efforts to locate Mohead, but the prosecution
provided that Mohead absconded from parole, and Mohead’s parole officer was available to the
trial court and defense counsel for further inquiry. The trial court ruled that it would be unlikely
that Mohead would respond to a subpoena to testify in the instant trial. We conclude that the
trial court’s ruling that Mohead was unavailable was not clearly erroneous on the record before
us. See People v Watkins, 209 Mich App 1, 4; 530 NW2d 111 (1995).
Thus we turn to Mohead’s statements to Ousley. Defendant concedes on appeal that the
challenged statements are nontestimonial, but he argues that his right to confrontation was
violated by the admission of Ousley’s statements. This argument lacks merit. The admissibility
of nontestimonial hearsay does not violate the Confrontation Clause if the prosecution can
establish either (1) that the declarant was unavailable as a witness and that the statements bore
adequate indicia of reliability, or (2) that the statements fell within a firmly rooted hearsay
exception. Washington, supra at 671-672. In this case, the prosecution established that the
declarant, Mohead, was unavailable as a witness—as discussed above—and the statements bore
adequate indicia of reliability.
At trial, Ousley testified that, essentially, Mohead told Ousley about his role in the
murder. After Stevens called him and asked him to bring a gun to Battle Creek, Mohead met
-2-
Stevens and his cousin, “Big J,”1 at a “club” on Hamblin Street in Battle Creek, and Mohead got
into their car. Mohead saw the victim talking to one of the proprietors of the Warehouse, and
then the victim got into a car. Mohead, Stevens, and “Big J” followed the other car. At the
apartment complex, “Big J” rolled down the window. Mohead claimed that “Big J” killed the
victim, and he opined to Ousley that Stevens was a coward and could not shoot anyone.
Mohead’s statements clearly were declarations against his penal interest, and thus were
admissible, under MRE 804(b)(3), which provides:
A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render invalid a claim by the declarant
against another, that a reasonable person in the declarant’s position would not
have made the statement unless believing it to be true.
Mohead’s statements demonstrated that he provided the gun that was used to kill the victim and
was also present when the murder took place. These statements tended to subject him to
criminal liability, and a reasonable person in his position would not have made the statements
without believing them to be true.
However, to determine if these statements against his penal interest bore adequate indicia
of reliability we evaluate the circumstances surrounding the making of the statements and their
content. Washington, supra at 672-673, quoting People v Poole, 444 Mich 151, 165; 506 NW2d
505 (1993). The presence of the following factors would favor admission of such statements:
“whether the statement was (1) voluntarily given, (2) made contemporaneously with the events
referenced, (3) made to family, friends, colleagues, or confederates-that is, to someone to whom
the declarant would likely speak the truth, and (4) uttered spontaneously at the initiation of the
declarant and without prompting or inquiry by the listener.” Washington, supra at 672-673,
quoting Poole, supra. The presence of the following factors would favor a finding of
inadmissibility: “whether the statement (1) was made to law enforcement officers or at the
prompting or inquiry of the listener, (2) minimizes the role or responsibility of the declarant or
shifts blame to the accomplice, (3) was made to avenge the declarant or to curry favor, and (4)
whether the declarant had a motive to lie or distort the truth.” Washington, supra at 673, quoting
Poole, supra.
Here, considering the totality of the circumstances, we conclude that Mohead’s
statements to Ousley bears sufficient indicia of reliability to allow their admission as substantive
evidence at trial. The statements were voluntary, made to a friend or confederate—another
incarcerated inmate, Mohead did not try to minimize his role in the crime, he had no motive to
lie or distort the truth, and there is nothing in the statement that indicates he was trying to curry
favor at the time he made the statement. See Washington, supra at 672. While Ousley initiated
the conversation, and prompted further responses, the circumstances do not otherwise support a
finding of inadmissibility. Thus, we conclude that the trial court did not abuse its discretion
when it admitted Mohead’s statements through Ousley’s testimony.
1
It appears that defendant is the person being referred to as “Big J.”
-3-
In reaching this conclusion, we reject defendant’s claim of ineffective assistance of
counsel. This claim was not presented in defendant’s statement of the issues; as such, we need
not review this claim. See MCR 7.212(C)(5); People v Miller, 238 Mich App 168, 172; 604
NW2d 781 (1999). Nevertheless, defendant’s claim lacks merit. Defendant argues on appeal
that defense counsel rendered ineffective assistance of counsel by failing to object to Ousley’s
testimony regarding statements by Stevens and Mohead, and for failing to call Mohead to testify
at trial. The record provides that defense counsel opposed the prosecution’s presentation of the
challenged statements during the preliminary examination and a pretrial motion hearing. And, as
previously discussed, the testimony was properly admitted; therefore, defendant’s ineffective
assistance of counsel claim must fail. Counsel’s conduct did not fall below an objective standard
of reasonableness. See People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). With
respect to defense counsel’s failure to call Mohead as a witness, decisions about what evidence
to present and which witness to call or question are presumed to be matters of trial strategy.
People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). However, the trial court found
that Mohead absconded from parole, thereby rendering it futile for defense counsel to call him as
a witness.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Mark J. Cavanagh
/s/ Brian K. Zahra
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
