PEOPLE OF MI V JERRELL KEMPLE MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 10, 2009
Plaintiff-Appellant,
v
No. 286971
Wayne Circuit Court
LC No. 08-001760
JERRELL KEMPLE MOORE,
Defendant-Appellee.
Before: Servitto, P.J., and Fort Hood and Stephens, JJ.
PER CURIAM.
The prosecutor appeals by leave granted from a circuit court order denying the
prosecutor’s motion to admit evidence of flight. We reverse in part and remand for further
proceedings.
Defendant was charged with first-degree felony murder, MCL 750.316(1)(b), first-degree
premeditated murder, MCL 750.316(1)(a), felon in possession of a firearm, MCL 750.224f,
felony-firearm, MCL 750.227b, and three counts of assault with intent to rob while armed, MCL
750.89, in connection with a fatal shooting at a residence in Detroit. The issue presented is
whether the trial court properly excluded evidence involving defendant’s flight from police
officers after they observed him driving a stolen vehicle approximately 1-1/2 months after the
charged shooting.
We review a trial court’s decision regarding the admission of evidence for an abuse of
discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). An abuse of
discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes. People v Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). This Court
reviews de novo preliminary questions of law regarding the admission of evidence. People v
Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible.
MRE 402; People v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003). Relevant evidence is
evidence that has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” MRE 401. Even if relevant, evidence may be excluded under MRE 403 “if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
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issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative
evidence.” People v Taylor, 252 Mich App 519, 521; 652 NW2d 526 (2002).
In Michigan, evidence of flight is admissible to support an inference of a defendant’s
consciousness of guilt. People v Unger, 278 Mich App 210, 226; 749 NW2d 272 (2008). It is
because flight evidence is probative of a defendant’s guilty state of mind that it is relevant.
People v McGhee, 268 Mich App 600, 639; 709 NW2d 595 (2005). Although such evidence
“may be as consistent with innocence as with guilt . . . it is always for the jury to say whether it
is under such circumstances as to evidence guilt.” People v Cutchall, 200 Mich App 396, 398;
504 NW2d 666 (1993), overruled in part on other grounds People v Edgett, 220 Mich App 686;
560 NW2d 360 (1996), quoting People v Cipriano, 238 Mich 332, 336; 213 NW 104 (1927).
Here, the trial court improperly excluded the flight evidence on the basis that it was
unclear whether it was probative of defendant’s consciousness of guilt regarding the November
shooting offense or the stolen car. The fact that there may have existed a reason other than the
November shooting offense for defendant’s flight pertains to the weight of the evidence rather
than its admissibility. This Court has previously recognized that the remoteness of a defendant’s
flight does not affect the admissibility of the evidence, but rather only the weight to be accorded
such evidence. People v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001). Similarly,
the fact that a defendant may have fled for reasons other than consciousness of guilt regarding
the offense for which he is standing trial affects only the weight to be accorded such evidence. It
was for the jury to determine whether defendant’s flight was indicative of guilt for the November
shooting offense or the stolen car, as defendant contends. See Unger, supra at 226.
The trial court also reasoned that the evidence was not admissible because the police
officers did not recognize defendant as a murder suspect while they were pursuing him. The
police officers’ state of mind is not relevant to the admissibility of the evidence. Evidence of a
defendant’s flight is relevant to show the defendant’s consciousness of guilt. McGhee, supra at
639. What the police officers may or may not have known, and what motivated their efforts to
apprehend defendant was irrelevant to defendant’s consciousness of guilt. The test focuses on
the defendant’s state of mind, not that of the police officers.
The trial court also determined that the evidence was more prejudicial than probative.
We partially agree with this determination. MRE 403 allows for the exclusion of relevant
evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”
“Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence
will be given undue or preemptive weight by the jury.” People v Crawford, 458 Mich 376, 398;
582 NW2d 785 (1998). When considering whether to admit evidence of defendant's flight, the
trial court apparently viewed defendant’s flight as a singular transaction. However, a review of
the facts of this case demonstrates that defendant’s flight involved several distinct acts. While in
a stolen car, defendant fled from officers and ultimately entered a building. From this building,
defendant fired shots at officers with two different firearms before being apprehended. The trial
court determined that the probative value of the evidence of defendant’s flight was outweighed
by the likelihood of prejudice. While we agree that the evidence of the possession and use of the
two firearms was more prejudicial than probative, we conclude that the trial court had the
discretion to allow the prosecution to present evidence of the other aspects of defendant’s flight.
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We recognize that this Court has previously held that all of the elements of a defendant’s
flight can be admitted as part of the res gestae of the flight. People v Coleman, 210 Mich App 1,
5; 532 NW2d 885 (1995). However, this Court has never stated that a lower court is faced with
an “all or nothing” proposition when determining the admissibility of evidence of flight. Rather,
we must permit our trial courts the discretion to determine the admissibility of each of a
defendant’s acts. Otherwise, as in the present case, trial courts will be forced to issue
unjustifiably broad rulings. Because there was no evidence connecting the firearms used during
defendant’s flight to the crime of which he was convicted, we find that the evidence of those
firearms would only serve to create confusion and prejudice. However, defendant's conduct
during the course of his flight is otherwise admissible, as its prejudicial effect does not
substantially outweigh its probative value regarding defendant's consciousness of guilt. To hold
that defendant’s violent conduct during his flight rendered all evidence of his flight inadmissible
would be to reward defendant for behaving violently.
Defendant argues that the evidence was not admissible under MRE 404(b)(1) because it
is not sufficiently similar to any of the charged offenses and does not evidence a common plan or
scheme. For the reasons previously discussed, however, the evidence is admissible for reasons
independent of MRE 404(b)(1), and the prosecutor did not seek to admit the evidence under
MRE 404(b)(1). Assuming that defendant correctly argues that the evidence is not admissible
under MRE 404(b)(1), “the fact that evidence is admissible for one purpose, but not another,
does not make it inadmissible.” McGhee, supra at 639.
In summary, the trial court erroneously determined that there must be a direct connection
between the flight evidence and the charges for which defendant is standing trial in order for the
evidence to be relevant. The evidence is not inadmissible because the police officers did not
recognize defendant as a murder suspect while they were pursuing him. Rather, it is for the jury
to determine the weight to accord the evidence. See Compeau, supra at 598. Further, the trial
court abused its discretion to the extent that it determined that no evidence of defendant's flight
could be introduced because the danger of unfair prejudice substantially outweighed the
probative value of the evidence. Rather, we find that while the highly prejudicial evidence of
defendant’s possession and use of firearms during his flight was properly excluded, the
prosecution is permitted to introduce evidence of the other aspects of defendant's flight. We note
that in introducing the evidence of flight, the prosecution must avoid any reference to the
improper firearm evidence in order to avoid misconduct.
Reversed in part and remanded for further proceedings. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Karen M. Fort Hood
/s/ Cynthia Diane Stephens
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