PEOPLE OF MI V JERRY WILLISON LONG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 21, 2010
Plaintiff-Appellee,
v
No. 284499
Saginaw Circuit Court
LC No. 07-029124-FC
JERRY WILLISON LONG,
Defendant-Appellant.
Before: Jansen, P.J., and Fort Hood and Gleicher, JJ.
GLEICHER, J. (concurring).
I concur with the majority in result, but write separately to express my disagreement with
one aspect of the majority opinion. The majority holds that the trial court did not abuse its
discretion when it declined to instruct the jury regarding accomplice testimony. In my view, the
evidence supported the accomplice instructions requested by defendant, and the trial court’s
refusal to give them amounts to an abuse of discretion. But because this error did not undermine
the reliability of the verdict, I join the affirmance of defendant’s convictions.
The events culminating in the tragic murder of Stacy Evans, Jr., began in defendant’s
basement on the afternoon of March 2, 2007. Cameron Youngblood, the prosecutor’s primary
witness, testified that he visited defendant’s basement “almost every day” and went there
“between three and 4:30 p.m.” on March 2, 2007. Youngblood and several other young men
regularly gathered in defendant’s home to socialize, play dice, and smoke marijuana.
Youngblood’s friend, Jhirnea Harris, arrived in the basement that afternoon and reported
that he “just got in a fight” with Cruz Hinds at a Saginaw High School athletic event.
Youngblood recalled that Harris seemed angry and wanted to return to the school. According to
Youngblood, after the group in the basement heard Harris’s account of his fight with Hinds,
“then we all was like, okay, so we going to go up there. And we all started shooting dice a little
bit more.” When the group eventually decided to find Hinds, defendant advised that “he didn’t
have no gas money.” Youngblood additionally recounted the following relevant details:
Youngblood: I told him that I would was [sic] going to give him some gas
money if he was to take us up to Saginaw High.
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Prosecutor: Okay. And that was for the purpose of going to get Cruz
Hinds?
Youngblood: Yes.
Prosecutor: And for want of a better word, it . . . was basically everybody
okay with that idea to go back and find Cruz Hinds?
Youngblood: Yes.
Prosecutor: And now you said that [defendant], he wanted some money
for his Hummer, to pay for gas?
Youngblood: Yes.
Prosecutor: And once that was done, he was okay to take you guys?
Youngblood: Yes.
Prosecutor: Did you offer to give him $20?
Youngblood: Yes.
Defendant and four others, including Youngblood, boarded defendant’s Hummer and set out to
locate and harm Hinds.
Youngblood explained, “Our plan was to—when the game was out, to be back up there
so we can see if we can catch Cruz Hinds out there in the parking lot.” The group’s first foray
proved unsuccessful because Hinds was still inside the school attending the game. Defendant
drove the group to a store, and Youngblood went inside with Shaquille Harris, Jhirnea’s brother.
Shaquille attempted to buy bullets, but the clerk refused to sell any to him, so defendant agreed
to purchase the bullets. As defendant and Youngblood left the store, defendant asked
Youngblood for the previously promised gas money, which Youngblood retrieved from his
“pocket and gave . . . to [defendant] . . . .” Youngblood observed defendant give the bullets he
had purchased to Shaquille.
On the way back to defendant’s house, Jhirnea saw someone walking down a sidewalk
that he believed resembled Hinds. Youngblood described that defendant pulled into a driveway,
Jhirnea “jumped out the truck” with a loaded gun, “walked up the sidewalk, and . . . just started
shooting.” Youngblood estimated that Jhirnea fired “about 30” shots at his intended victim
before returning to defendant’s Hummer. The group made a second stop for bullets before
heading back to defendant’s basement, where Youngblood witnessed Jhirnea reloading the gun
and Shaquille loading a second firearm.
After spending another period of time in defendant’s basement, the group reentered the
Hummer and embarked on a second hunt for Hinds. Defendant claimed that after the first
shooting, he initially refused to take the group back to the school:
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… I told him [Jhirnea] what he just did in my car, I wasn’t going to take
him to no Saginaw High game. And I told him out straight.
And he said, we gave you money. I didn’t at that time say, well, Cameron
gave me gas money, because Cameron helped him pitch—after I told him no,
Cameron helped him pitch in to change my decision of taking them to the game.
So I just felt like they was all in it together.
On the way to the school the Hummer stopped at a market, and Youngblood told
Shaquille “to bring me something back.” Shaquille complied. As the Hummer pulled out of the
market’s parking lot, one of the occupants spotted a nearby truck that looked like one owned by
“this dude named Zoe.” Youngblood noticed that the truck actually belonged to his mother, and
implored, “[N]o, no don’t shoot my momma truck up.” The group agreed to forebear, but came
across another target a few minutes later. In the second shooting of the evening, a passenger in
the Hummer shot at some people on a porch, who returned fire. The Hummer and its occupants
again stopped at a market, where Youngblood got out of the truck, bought something, and
returned to the truck. Youngblood recalled that “sooner or later” the Hummer encountered a
vehicle in which Joseph Ball was a passenger. The Hummer chased the vehicle until one of
Hummer’s occupants shot at Ball’s through the other vehicle’s passenger window. This
shooting, the third of the evening, killed Stacy Evans, Jr.
The majority opines that “there is no record evidence to suggest that there was any
agreement between Youngblood and defendant or anyone else to shoot anyone, nor is there any
evidence to suggest that Youngblood encouraged, helped, aided, or supported defendant or the
others involved at any point during the shootings.” Ante at 2-3. This conclusion ignores both
direct and circumstantial evidence placing Youngblood firmly among the conspirators. First and
most compellingly, the evidence establishes that Youngblood volunteered to help finance
defendant’s transportation of the roving band of armed men. Youngblood proffered the gas
money after witnessing defendant purchase bullets, and pursuant to his own testimony
unquestionably knew that the purpose of the Hummer’s journey was to find and harm Hinds.
Furthermore, Youngblood made no effort to distance himself from the other occupants of the
Hummer, despite having been presented with several opportunities to do so, even after the first
two shootings. Throughout Youngblood’s testimony, he included himself within the group of
armed marauders by consistently referring to the collection of men as “we.” Moreover, the
prosecutor applied for and received a grant of testimonial immunity for Youngblood. Had no
evidence implicated Youngblood in the shootings, the prosecutor’s application for immunity
would have been unnecessary. The prosecutor’s immunity application for Youngblood serves as
a powerful recognition that Youngblood faced potential criminal liability for his conduct that
evening.
This Court has adopted the definition of “accomplice” set forth in CJI2d 5.5; an
accomplice is “a ‘person who knowingly and willingly helps or cooperates with someone else in
committing a crime.’” People v Allen, 201 Mich App 98, 105; 505 NW2d 869 (1993), quoting
CJI2d 5.5. In my view, Youngblood knowingly and willingly helped and cooperated with
defendant’s commission of the crime of conspiracy to commit first-degree murder. The essence
of a criminal conspiracy consists of the conspirators’ agreement to commit an unlawful act,
“where one or more of the coconspirators do any act to effect the object of the conspiracy.”
People v Wilson, 454 Mich 421, 429; 563 NW2d 44 (1997) (opinion by Brickley, J.) (internal
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quotation omitted). The instant conspiracy began when the group decided to find and wreak
retribution on Hinds, and, in the words of the prosecutor, “envelope[d] the entire series of
events.” Youngblood furnished gas money for the conspirators’ journey. Furthermore,
Youngblood knowingly cooperated with his companions by remaining in the Hummer
throughout the night of terror and by failing to notify the police to warn of the Hummer’s deadly
mission. The prosecutor’s closing argument implicitly acknowledged that Youngblood aided
and abetted the others:
We have a situation in which a group of young men, all of them young
men ranging in age from 14 years to 23 years, got together and went out on a
hunting expedition with a single purpose in mind, to take human life; and
apparently, for little more than some degree of entertainment value, to make a
point that their group, their neighborhood is tougher than individuals from a
different neighborhood, perhaps to even up a score with an individual that was
involved in a fistfight on a basketball court that evening.
In light of the record evidence and Youngblood’s grant of immunity, Youngblood undisputedly
behaved as an accomplice to defendant. Consequently, the trial court should have read the jury
CJI2d 5.4, which applies to undisputed accomplice testimony.1
Even assuming that Youngblood’s status as an accomplice reasonably remained in
question, ample evidence supported defendant’s request that the trial court read CJI2d 5.5, the
disputed accomplice instruction:
(1)
Before you may consider what [name witness] said in court, you
must decide whether [he/she] took part in the crime the defendant is charged with
committing. [Name witness] has not admitted taking part in the crime, but there
is evidence that could lead you to think that [he/she] did.
(2)
A person who knowingly and willingly helps or cooperates with
someone else in committing a crime is called an accomplice.
(3)
When you think about [name witness]’s testimony, first decide if
[he/she] was an accomplice. If, after thinking about all the evidence, you decide
that [he/she] did not take part in this crime, judge [his/her] testimony as you judge
that of any other witness. But, if you decide that [name witness] was an
accomplice, then you must consider [his/her] testimony in the following way: [in
conformity with CJI2d 5.6.]
1
Pursuant to CJI2d 5.4, a grant of immunity permits a trial court to conclude that a witness
qualifies as an undisputed accomplice. The instruction reads, “[Name witness] says [he / she]
took part in the crime that the defendant is charged with committing,” and provides that the
judge should select among additional statements, including that “[Name witness] has been
promised that [he / she] will not be prosecuted for the crime the defendant is charged with
committing.”
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The evidence that Youngblood bought gas money, remained with his friends throughout the
evening, and plainly understood that they would continue to load and fire their weapons at Hinds
or other unfortunate human targets “could lead . . . [a reasonable juror] to think that”
Youngblood took part in the charged conspiracy to commit first-degree murder. CJI2d 5.5(1).
The majority observes that “there was scant evidence suggesting that Youngblood acted as an
accomplice,” and that “[o]ther than offering defendant gas money, there is nothing in the record
to suggest that Youngblood knowingly and willingly helped or cooperated with anyone in the
shootings.” Ante at 2. In my view, the majority improperly disregards the evidence that
Youngblood funded the Hummer’s fatal journey, incorrectly characterizes the evidence of
Youngblood’s cooperation with the Hummer’s occupant’s as “scant,” and fails to heed our
Supreme Court’s admonition that when some evidence supports an instruction, the instruction
must be given. “[W]hen a jury instruction is requested on any theories or defenses and is
supported by evidence, it must be given to the jury by the trial judge. A trial court is required to
give a requested instruction, except where the theory is not supported by evidence.” People v
Mills, 450 Mich 61, 81; 537 NW2d 909, mod 450 Mich 1212 (1995) (footnote omitted).
Whether properly characterized as “scanty” or “ample,” some evidence reasonably tended to
establish that Youngblood knowingly and willingly helped and cooperated with defendant and
the other conspirators. On this record, the trial court abused its discretion by declining to read
the jury an accomplice testimony instruction.
However, this error does not mandate reversal of defendant’s convictions. Defendant
bears the burden of establishing that a preserved nonconstitutional error more than likely affected
the outcome of the proceedings. People v Young, 472 Mich 130, 142; 693 NW2d 801 (2005).
“An error is deemed to have been ‘outcome determinative’ if it undermined the reliability of the
verdict.” Id. (internal quotation omitted). Here, the trial court’s failure to give the requested
instruction neither determined the outcome of the trial nor undermined the reliability of the
verdict in any respect. Defense counsel aggressively and extensively questioned Youngblood
and elicited that Youngblood had received immunity from prosecution. Furthermore, defendant
admitted that he purchased bullets that his passengers fired on March 2, 2007, drove the shooters
around in his car despite knowledge that they were armed, and chased the vehicle in which Ball
rode when the Hummer’s occupants directed him to do so. Although defendant insisted that he
lacked the intent to kill anyone, overwhelming evidence established that defendant twice
voluntarily reentered his Hummer after the first shooting to make additional journeys with a
group of armed men. Even had the jury discounted most of Youngblood’s testimony, defendant
himself admitted to virtually every fact described by Youngblood. Notwithstanding my
disagreement with the majority’s analysis, I believe that precisely the same result would have
obtained if the trial court had read an accomplice testimony instruction. Therefore, I concur in
affirming defendant’s convictions.
/s/ Elizabeth L. Gleicher
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