PEOPLE OF MI V EMMANUEL JAMARR ATKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 9, 2009
Plaintiff-Appellee,
v
No. 282697
Kalamazoo Circuit Court
LC No. 07-000624-FC
EMMANUEL JAMARR ATKINS,
Defendant-Appellant.
Before: Beckering, P.J., and Wilder and Davis, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree, premeditated
murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony,
MCL 750.227b. Defendant was sentenced as an habitual offender, second offense, MCL 769.11,
to life imprisonment for the murder conviction and two years’ imprisonment for the felonyfirearm conviction. We affirm.
I
On March 29, 2007, at approximately 10:00 p.m., a Chevrolet Suburban with
approximately 11 young men inside, including defendant, drove by a house located near the
corner of Mills and Washington in Kalamazoo, Michigan. According to witness testimony,
defendant, who was seated closest to the passenger-side window of the vehicle’s second row,
fired one shot out of a gun toward a group of people gathered on the porch. The shot struck 14year-old William Berry in the eye, killing him. Witness testimony supported that the shooting
was the culmination of an earlier altercation between rival street gangs.
At the start of trial, over defendant’s objection, the prosecutor sought to have the
courtroom closed because several prosecution witnesses had been harassed and threatened, and
several threatening messages were posted to some of the witnesses’ Internet pages. In addition,
the prosecution indicated that a person with a baseball bat had chased one of the witnesses after
that witness testified at the preliminary examination. Another witness moved from the area, and
still another witness dropped out of school because of intimidation. The prosecutor noted that
two-thirds of the prosecution’s witnesses were minors who after the trial would come into
contact with many of the spectators in the courtroom at school and in the community. The trial
court declined to close the courtroom at that time, but indicated that it would monitor the
situation, including the conduct of the spectators in the courtroom.
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After approximately 11 witnesses testified, including two who were in the Suburban at
the time of the shooting, the prosecutor renewed his request for a closed courtroom, particularly
during the testimony of four witnesses who were in the vehicle with defendant. The court noted
that several spectators who had been sitting in the courtroom throughout the trial became quite
interested whenever gang references were made; that four spectators were removed from the
courtroom for making comments about the deputies’ guns; that spectators were removed despite
the presence of additional security at the trial; that the jurors had become somewhat concerned
and requested assistance to their vehicles; that witnesses had been threatened in the past and
there were ongoing concerns about the safety of witnesses and intimidation regarding potential
consequences for their testimony; and that the case involved a neighborhood crime, including
several young witnesses and spectators who attended the same high school, which could also
lead to threats, intimidation, and concern for the integrity of the proceedings. The trial court
concluded that under the presenting circumstances there was a substantial reason to allow for a
partial closure of the courtroom in order to protect the integrity of the judicial system and ensure
that witnesses were comfortable and testifying truthfully. The court kept the courtroom open to
the parents of the witnesses, defendant, and the victim, as well as the media.
Defendant declined the court’s offer to open the courtroom for the testimony of police
officers because he believed it would be prejudicial to open the courtroom for some witnesses
and close it for others. After taking the testimony of several witnesses, the trial court stated that
the courtroom would remain partially closed for the remainder of the trial and restated its
previous reasoning. The trial court also noted as additional concerns a report by a juror
regarding an episode where individuals standing by the elevator appeared to be taking a “head
count” of the jurors as they returned from lunch, as well as a report of ongoing Internet threats to
witnesses. The court indicated that the family members (not just the parents) of defendant, the
witnesses, and the victim were welcome to sit in the trial, as was the media. The courtroom
remained partially closed for the remainder of the trial, which included the testimony of nine
witnesses (including defendant) who were in the Suburban at the time of the shooting and six
other witnesses. Several witnesses testified to various threats and repercussions of their potential
testimony, including one witness who dropped out of school due to the fighting, harassment, and
threats, one who moved out of the area, and one who was chased by an individual with a baseball
bat following his testimony at the preliminary examination.
II
On appeal, defendant contends that the trial court denied him his constitutional right to a
public trial when it partially closed the courtroom. Whether a trial court denied a criminal
defendant the right to a public trial involves a question of constitutional law which this Court
reviews de novo. People v Dunbar, 463 Mich 606, 615; 625 NW2d 1 (2001). The denial of a
criminal defendant’s Sixth Amendment right to a public trial constitutes a structural error
warranting automatic reversal. People v Anderson (After Remand), 446 Mich 392, 405; 521
NW2d 538 (1994), citing Waller v Georgia, 467 US 39, 49 n 9; 104 S Ct 2210; 81 L Ed 2d 31
(1984).
A defendant in a criminal proceeding has both a state and federal constitutional right to a
public trial. US Const Am VI; Const 1963, art 1, § 20; People v Kline, 197 Mich App 165, 169;
494 NW2d 756 (1992). “Although the right to an open trial is not absolute, that right will only
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rarely give way to other interests.” Id. The United States Supreme Court in Waller, supra at 48,
set forth the requirements for the total closure of a trial:
[T]he party seeking to close the hearing must advance an overriding interest that
is likely to be prejudiced, the closure must be no broader than necessary to protect
that interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.
However, this Court in Kline, supra at 169-170, explained the difference between a partial
closure and a total closure as follows:
Waller addressed total closure of a suppression hearing, and does not necessarily
govern partial closures. Because the impact of a partial closure does not reach the
level of total closure, only a substantial, rather than a compelling, reason for the
closure is necessary. [Citations and footnote omitted.]
“A partial closure occurs where the public is only partially excluded, such as when family
members or the press are allowed to remain . . . .” Id. at 170 n 2 (citations omitted).
In this case, the trial court only partially closed the courtroom because it allowed
defendant’s relatives, relatives of the victim and the testifying witnesses, and members of the
media to remain in the courtroom. Id. Thus, a substantial interest, as opposed to a compelling
interest, was necessary to implement the partial closure. Id. at 170.
The record indicates that the nature of this offense involved two neighborhood street
gangs, and there was a high likelihood of influence and intimidation from spectators. The
shooting was the culmination of a clash between geographically based neighborhood street
gangs, and the trial court and prosecutor noted that there were many young people in the
courtroom, many of whom appeared to be from the same high school as the witnesses. In
addition, threats were posted on the Internet, and, according to the prosecutor, some of the
witnesses indicated they were afraid to testify in court. The threats posted online warned some
witnesses that there would be retaliation depending on who testified and who “snitched.” One
witness testified that his parents forced him to leave the city, another admitted during testimony
that a person chased him with a baseball bat after he testified at the preliminary examination, and
another testified that he dropped out of school after being harassed. Furthermore, the prosecutor
indicated that witnesses were being threatened as they left the courtroom. The trial court also
noted that four individuals were removed from the courtroom for inappropriate comments about
weapons carried by deputies, that jurors were being escorted out of the courthouse as a safety
precaution, and that a juror complained about a remark directed at the jury during a break.
Under these circumstances, we find there was a substantial interest in partially closing the
courtroom to ensure that witnesses were testifying without threats or intimidation and to protect
the integrity of the judicial system.
Additionally, the closure was narrowly tailored, the trial court properly articulated
findings on the record, and it considered alternatives to a total closure. Waller, supra at 48;
Kline, supra at 169. Here, the trial court narrowly tailored the closure to allow relatives of
defendant, the victim, and the testifying witnesses, as well as members of the media to remain in
the courtroom. The trial court properly articulated findings on the record; specifically, the trial
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court discussed that threats were being made against several witnesses, that the crime was a
“neighborhood crime,” that rival gangs and many high school-aged individuals were involved,
that threatening messages were posted online, that a comment was directed at a juror, and that
several individuals were removed from the courtroom for inappropriate remarks about weapons.
This record is sufficient to allow this Court to determine that the closure was proper. Waller,
supra at 45 (citations omitted). Furthermore, the trial court properly considered alternatives to
totally closing the courtroom. The court left the courtroom open for the first 11 witnesses, it
offered to open the courtroom during the testimony of police officers, and it allowed relatives
and media members to remain.
III
Defendant also contends that there was insufficient evidence to show that he acted with
premeditation and deliberation when he fired a gunshot out of the window of the Suburban at the
porch. We review a challenge to the sufficiency of the evidence de novo. People v Lueth, 253
Mich App 670, 680; 660 NW2d 322 (2002). In determining whether the prosecution presented
sufficient evidence to sustain a conviction, this Court must construe the evidence in a light most
favorable to the prosecution and consider whether there was sufficient evidence to justify a
rational trier of fact in finding that all of the elements of the crime were proven beyond a
reasonable doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999).
In order to prove first-degree, premeditated murder, MCL 750.316(1)(a), the prosecution
must prove beyond a reasonable doubt that “the defendant killed the victim and that the killing
was . . . ‘willful, deliberate, and premeditated . . . .’” People v Bowman, 254 Mich App 142,
151; 656 NW2d 835 (2002), quoting MCL 750.316(1)(a). Under the doctrine of transferred
intent, if evidence shows that a defendant intended to kill someone, yet accidentally killed
someone else, the evidence is sufficient to establish the intent element of first-degree murder.
People v Youngblood, 165 Mich App 381, 388; 418 NW2d 472 (1988). To show premeditation
and deliberation, there must be some time span between the initial homicidal intent and the
ultimate action. People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003) (citations
omitted). “The interval between the initial thought and ultimate action should be long enough to
afford a reasonable person time to take a ‘second look.’” Id. (citations omitted). The facts and
circumstances surrounding the killing, including evidence of motive as a result of a previous
relationship between the parties, can establish premeditation and deliberation. Youngblood,
supra at 387. Moreover, “[c]ircumstantial evidence and reasonable inferences drawn from the
evidence may constitute satisfactory proof of premeditation and deliberation.” People v Unger,
278 Mich App 210, 229; 749 NW2d 272 (2008). And, “[b]ecause of the difficulty of proving an
actor’s state of mind, minimal circumstantial evidence is sufficient.” People v McRunels, 237
Mich App 168, 181; 603 NW2d 95 (1999).
In this case, the evidence viewed in a light most favorable to the prosecution showed that
defendant had a motive to commit the murder. Several witnesses testified at trial that the group
inside the Suburban was involved in an altercation with a rival street gang earlier in the day.
Following the altercation, certain members of the group wanted to return to the area to fight the
rival gang. Defendant was informed of the earlier altercation and joined the others in the
Suburban. Defendant himself acknowledged during his testimony that certain members of the
group informed him they wanted to return to fight the other group, and asked him if he had a
gun.
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Additionally, the evidence viewed in a light most favorable to the prosecution showed
that defendant planned to shoot someone that night and that he had adequate time for a “second
look.” Defendant brought a gun with him in the Suburban after he was informed that the group
wanted to fight. Defendant had time during the ride from his residence to the scene of the
shooting to contemplate and reflect upon his actions. According to witnesses’ testimony, the
Suburban drove past Mills, where the group inside the vehicle observed a crowd of people
gathered on a porch, some of whom were involved in the earlier altercation. The Suburban then
turned around in a driveway and circled back, turning onto Mills. During this time, defendant
had an opportunity for a “second look” and time to contemplate his actions. According to the
testimony of the witness who was seated next to defendant in the Suburban, as the vehicle
approached the house, defendant’s window rolled down, and defendant pointed a gun out of the
window and fired a shot at the porch where the kids were gathered. As defendant’s window
rolled down and he pointed the gun, he had yet another opportunity for a “second look” and to
reflect on his actions before he fired the weapon into the crowd of people on the porch.
In reaching our conclusion that the evidence was sufficient to establish the elements of
first-degree, premeditated murder, we will not interfere with the factfinder’s role of determining
the weight of the evidence or credibility of the witnesses. People v Wolfe, 440 Mich 508, 514515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “It is the function of the jury
alone to listen to testimony, weigh the evidence and decide the questions of fact. . . . Juries, not
appellate courts, see and hear witnesses and are in a much better position to decide the weight
and credibility to be given to their testimony.” Id., quoting People v Palmer, 392 Mich 370, 375376; 220 NW2d 393 (1974). Reviewing the evidence in a light most favorable to the
prosecution, and considering that only minimal circumstantial evidence is needed to prove a
defendant’s state of mind, we find there was sufficient evidence to allow a rational trier of fact to
conclude beyond a reasonable doubt that defendant was guilty of first-degree, premeditated
murder.
Affirmed.
/s/ Jane M. Beckering
/s/ Kurtis T. Wilder
/s/ Alton T. Davis
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