PEOPLE OF MI V ANTOINE DANEILL TRAMBLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 12, 2010
Plaintiff-Appellee,
v
No. 291902
Wayne Circuit Court
LC No. 08-019071-FC
ANTOINE DANEILL TRAMBLE,
Defendant-Appellant.
Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ.
PER CURIAM.
A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a),
being a felon in possession of a firearm, MCL 750.224f, carrying a concealed weapon (CCW),
MCL 750.227, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant as a third habitual offender, MCL 769.11, to
concurrent terms of life in prison without parole for the first-degree murder conviction and 34 to
120 months in prison for the felon in possession and CCW convictions, and a consecutive twoyear term for the felony-firearm conviction. Defendant appeals as of right. We affirm.
Defendant stood trial for the April 14, 2008 shooting death of Lorenzo Pertee, which
occurred outside 18053 Bradford Street in Detroit. Several friends and relatives had gathered at
18053 Bradford to play cards and dominoes, drink alcohol, smoke marijuana, and listen to music,
as the group had done previously on several occasions. Some trial evidence established that the
victim had insulted defendant in front of the other guests, including defendant’s girlfriend. The
testimony of several witnesses at trial reflected that defendant left the gathering before the
victim, defendant retrieved a revolver from his van, and minutes later defendant shot the victim
after he had left the house and headed to his car. A medical examiner described that the victim
sustained four gunshot entrance wounds in his back, and another entrance wound to one of his
shoulders.
I. SUFFICIENCY OF EVIDENCE
We first will address defendant’s challenge to the sufficiency of the evidence supporting
his first-degree murder conviction. Defendant specifically contests the adequacy of proof that he
intended to kill the victim and that he premeditated and deliberated the killing of the victim.
When reviewing the sufficiency of the evidence in a criminal case, we must determine “whether
the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in
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finding guilt beyond a reasonable doubt.” People v Nowack, 462 Mich 392, 399; 614 NW2d 78
(2000).
The standard of review is deferential: a reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the jury
verdict. The scope of review is the same whether the evidence is direct or
circumstantial. Circumstantial evidence and reasonable inferences arising from
that evidence can constitute satisfactory proof of the elements of a crime. [Id. at
400 (internal quotation omitted).]
“Because it is difficult to prove an actor’s state of mind, only minimal circumstantial evidence is
required.” People v McGhee, 268 Mich App 600, 623; 709 NW2d 595 (2005).
To convict a defendant of first-degree premeditated murder, MCL 750.316(1)(a), the
prosecutor must establish that the defendant intentionally killed the victim and that the defendant
premeditated and deliberated the act of murder. People v Kelly, 231 Mich App 627, 642; 588
NW2d 480 (1998). Premeditation and deliberation require sufficient time to permit the
defendant to take a second look. Id. Inferences of premeditation and deliberation may arise
from evidence of (1) the prior relationship between the defendant and the victim, (2) the
defendant’s actions before the murder, (3) the circumstances of the killing itself, including the
type of weapon used and the location of the wounds inflicted, and (4) the defendant’s conduct
after the murder. People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999); People v
Berry (On Remand), 198 Mich App 123, 128; 497 NW2d 202 (1993).
At the time of the April 14, 2008 shooting at 18053 Bradford Street, the victim and
defendant shared a prior relationship to the extent that they drank and played dominoes together
over the course of a few hours that evening, and may have attended a gathering together at some
point previously. Larry Ward, who resided at 18053 Bradford Street, testified that within an
hour or two before the shooting, the victim had performed a rap, and that when defendant
expressed an interest in “get[ting] down with y’all,” the victim replied, “[W]e don’t let bums
sign up on our label[].” As defendant left the house within an hour or two later, he expressed in
a “mean” tone of voice to Nashanda Ivory, who also lived at 18053 Bradford Street, “[Y]’all be
moving up off this mother f***er today, and I’ll be riding off in that n****r car,” which Ivory
interpreted as a threat “to do something to the house” and the victim’s car. Multiple witnesses
estimated that defendant waited outside in or near his van for 10 to 20 minutes or more for the
victim to leave. Darryl Foster, who had parked behind defendant’s van earlier that evening,
recalled that he engaged defendant in discussion in the back of defendant’s van, and that when
the victim walked outside and headed toward his car defendant removed a revolver from a brown
bag and placed it in his waistband. The victim got inside his car, but got back out very shortly
thereafter and began walking toward the house; Foster described at trial that he saw the victim’s
and defendant’s “lips moving” at some point after the victim left the house, but Foster denied
hearing any discussion or yelling. The testimony of Foster and Ja’net Laston, the victim’s
cousin, reflected that defendant intercepted the victim, pulled the gun from his waistband, began
firing at the victim, and continued firing at the victim as he tried to flee up the block on foot.
The evidence agreed that the victim never possessed a weapon. After Ward heard gunshots, he
ran outside to confront defendant, who told Ward “my mother-f***ing cousin talk too much,”
pointed the gun at Ward, and pulled the empty gun’s trigger a couple times before running away.
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The medical examiner confirmed that the victim had five gunshot wounds, four of which had
entered his back.
Viewed in the light most favorable to the prosecution, the evidence that (1) the victim had
insulted defendant, (2) defendant waited outside 18053 Bradford Street for the victim to leave
the house, (3) when the victim came outside defendant retrieved his revolver, intercepted the
victim, commenced firing at the victim and then emptied the revolver in the victim’s back as he
fled, (4) defendant told Ward the victim talked too much, and (5) defendant fled the scene,
constituted an ample foundation for the jury’s reasonable finding beyond a reasonable doubt that
defendant intended to kill the victim and premeditated and deliberated the victim’s murder. With
respect to defendant’s complaint that the trial testimony contained many inconsistencies, our
review of the record reveals that the witnesses agreed or their testimony remained consistent
concerning most of the basic aspects of the April 14, 2008 shooting. In any event, to the extent
that inconsistencies existed among the trial witnesses or between the witnesses’ trial testimony
and their prior statements, we will not revisit the jury’s weighing of the testimony and credibility
determinations. Nowack, 462 Mich at 400; People v Elkhoja, 251 Mich App 417, 442; 651
NW2d 408 (2002), vacated in part on other grounds 467 Mich 916 (2003).
II. PROSECUTORIAL MISCONDUCT
Defendant additionally maintains that the prosecutor engaged in several instances of
misconduct at his trial.
Prosecutorial misconduct issues are decided case by case, and the
reviewing court must examine the pertinent portion of the record and evaluate a
prosecutor’s remarks in context. Prosecutors may not make a statement of fact to
the jury that is unsupported by the evidence, but they are free to argue the
evidence and all reasonable inferences arising from it as they relate to the theory
of the case. Prosecutorial comments must be read as a whole and evaluated in
light of defense arguments and the relationship they bear to the evidence admitted
at trial. [People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000),
criticized on other grounds in Crawford v Washington, 541 US 36; 124 S Ct 1354;
158 L Ed 2d 177 (2004).]
This Court reviews alleged instances of prosecutorial misconduct in context to determine
whether the defendant received a fair and impartial trial. People v Watson, 245 Mich App 572,
586; 629 NW2d 411 (2001).
In this case, defendant did not preserve at trial any of the claims of prosecutorial
misconduct that he raises on appeal. People v Unger, 278 Mich App 210, 235; 749 NW2d 272
(2008). Appellate review of improper remarks by the prosecutor is generally precluded absent
an objection by defense counsel because a failure to object deprives the trial court of an
opportunity to cure the alleged error. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
(1994). This Court reviews unpreserved claims of prosecutorial misconduct only for plain error
that affected the defendant’s substantial rights. Unger, 278 Mich App at 235; Schutte, 240 Mich
App at 720. A forfeited plain error warrants reversal “only when plain error resulted in the
conviction of an actually innocent defendant or seriously affected the fairness, integrity, or
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public reputation of judicial proceedings.” Unger, 278 Mich App at 235 (internal quotation
omitted).
A
Defendant initially characterizes as improper prosecutorial vouching for state witnesses
the following portion of the prosecutor’s closing argument:
When you look at the state of a person when they’re that traumatized and
they’re that upset it’s very unlikely that those folks are lying. Think about it. This
is not an example of someone who is talked to hours later who’s had a chance to
sit down [and] in a very calm calculated fashion thinks about what they’re saying.
These are people at their rawest moment and their most honest moments.
These are people who tell it like it is because the state they’re in doesn’t let them
do anything but that and that’s the state that Larry Ward was in when he told the
officers that [defendant] killed [the victim], that [defendant] said, your cousin
talks too much.
That’s the state that Ja’net Laston was in when she told the police she saw
. . . Defendant pull that gun out, fire multiple times and [the victim] dropped in
the street and was dead. [Emphasis added.]
Contrary to defendant’s contention, the prosecutor in no way suggested that she had any “special
knowledge of the witnesses’ truthfulness.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314
(2009), citing People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). Instead, the
prosecutor properly argued on the basis of the trial testimony that the witnesses who observed or
were present at the time of the April 14, 2008 shooting were worthy of belief. Seals, 285 Mich
App at 22 (“[T]he prosecutor may argue from the facts that a witness should be believed.”)
(internal quotation omitted); People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004)
(“[A] prosecutor may comment on his own witnesses’ credibility during closing argument . . .
.”). The witnesses themselves had recounted at trial their presence when the traumatic shooting
took place, and several police officers testified at trial about out-of-court statements made by the
witnesses shortly after the shooting and their agitated states at the time they made their
statements. In summary, the prosecutor engaged in no improper vouching.
B
Defendant next criticizes as prosecutorial attempts “to lessen the burden of proof” the
following portions of the prosecutor’s opening statement and closing argument:
Now, ladies and gentlemen, as we are not machines, we are not robots, I
expect that you will hear some slight inconsistencies between the witnesses’
testimony. That’s not unusual. People see things differently and people hear
things differently depending on where they’re standing, what they’re looking at,
and what keeps their attention. . . . [Opening statement.]
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They describe the same event, ladies and gentlemen. They describe the
same event and I submit to you, ladies and gentlemen, are their inconsistencies in
[the] testimony? Sure. Are there little nuances or little things that are different
between each person’s testimony? Absolutely.
And I’d expect nothing but that, ladies and gentlemen, cause people aren’t
robots. People don’t process information the exact same way. People aren’t
looking in the same direction as each other at all times so I would ask you not to
be disturbed by that because I’ll tell you this, ladies and gentlemen.
The evidence again from that witness stand places the Defendant with that
gun in his hand pulling it out and firing multiple times. . . . [Closing argument.]
Nothing akin to improper burden shifting appears in the challenged passages; nowhere does the
prosecutor insinuate that the defense must prove anything or try to minimize her own burden of
proof. Most of the points referenced in the prosecutor’s opening statement relating to potential
inconsistencies in witness testimony and possible reasons therefor appear in CJI2d 3.4 regarding
witness credibility, which the trial court read to the jury before deliberations commenced. And
the prosecutor’s closing argument simply summarized the nature of the sometimes inconsistent
witness testimony given at trial, properly suggesting that on the basis of the trial record,
irrespective of any inconsistencies, the evidence agreed that defendant was the lone individual
who possessed a firearm on the evening of April 14, 2008. Schutte, 240 Mich App at 721. We
detect no prosecutorial misconduct in the challenged argument.
C
Defendant also characterizes the following, italicized prosecutor comments during
closing argument as improper burden shifting:
You heard testimony that some fingerprints were taken off the bottle
downstairs and I submit to you, . . . as one of the witnesses testified, I believe it’s
Larry Ward, when he indicated that everybody was picking up that bottle and
drinking out of it. So would it be any big surprise if you found prints, didn’t find
prints when that many people were handling that bottle?
But again that’s where people get distracted or are lead [sic] to believe that
every case has some mystery C.S.I. hair fibers, blood spatters, things like [that] . .
. . That’s not reality. That’s TV. When we talk about a DNA sample about one
of the cups down here, . . . as you heard from Officer Smith, DNA can be used to
determine the identity of someone.
You respond to a crime scene and there’s blood samples there or
something that allows you to take a DNA sample and you test it to find out the
identity of that person. There’s no question about the identity of the individual
who committed this murder, no question, but again, DNA is very hot and very
news worthy to throw out there.
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I submit to you, ladies and gentlemen, as thoughtful and thinking folks,
don’t be distracted by things that don’t apply to this case. There’s no question
about trying to narrow down who was there. No question about who committed
the murder.
So fingerprints and DNA I submit you can talk all day long about what’s
[not] there because it will give you a chance to not look at what is there. What is
there is the strength of the testimony of Miss Ivory, Mr. Ward, Miss Laston and
Mr. Foster. [Emphasis added.]
The entirety of this passage consists of proper prosecutorial comment on the basis of the trial
record. In light of (1) the consistent eyewitness identifications of defendant at trial as the
shooter, and (2) police officer testimony at trial that the police had dusted for fingerprints a
liquor bottle found in the basement of 18053 Bradford Street and took a swab from defendant’s
cup for deoxyribonucleic acid (DNA) analysis,1 the prosecutor properly urged the jury to focus
on the eyewitness testimony. Seals, 285 Mich App at 22 (“Generally, prosecutors are accorded
great latitude regarding their arguments, and are free to argue the evidence and all reasonable
inferences from the evidence as they relate to their theory of the case.”); Schutte, 240 Mich App
at 721. This passage similarly reveals no reasonable inference that, as defendant asserts, the
prosecutor has made some effort to “ignor[e] the standard for a guilty verdict of beyond a
reasonable doubt.” Consequently, we again detect no prosecutorial misconduct. Moreover, the
trial court instructed the jury that its “instructions on the law” governed the jury’s evaluation of
the evidence, that defendant’s presumption of innocence “continues through trial and entitles . . .
Defendant to a verdict of not guilty unless you are satisfied beyond a reasonable doubt that he is
guilty,” and that “[t]he prosecutor must prove each element of the crime[s] beyond a reasonable
doubt. . . . Defendant is not required to prove his innocence or to do anything. If you find that
the prosecutor has not proven every element beyond a reasonable doubt then you must find . . .
Defendant not guilty.” See Unger, 278 Mich App at 235 (noting that “jurors are presumed to
follow their instructions”).
D
Defendant lastly argues that the prosecutor engaged in misconduct when she made
opening statement and closing argument references to facts not of record concerning defendant’s
departure from the scene in his van. However, our reading of the record does not substantiate
defendant’s position that the prosecutor “informed the jury that the Defendant drove away and/or
was driven away from the scene of the shooting by his girlfriend.” Instead, the record shows that
the prosecutor in her opening statement mentioned that after the shooting “Defendant took off
running,” and in her closing argument similarly noted that “after accomplishing what he had set
out to do, [defendant] turns and runs down the street.” At trial, several witnesses, including
Ward, Ivory and Laston, agreed that after the shooting, defendant fled on foot toward a side
street, and that defendant’s girlfriend had driven away defendant’s van at the time of the
shooting. And Ward explained at trial that he had pursued defendant down Bradford Street, but
1
The trial record does not refer to whether any testing occurred.
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when Ward reached the first intersection, he no longer saw defendant, although Ward did see
“the same van that [defendant’s] girlfriend pulled off in.” The witness testimony thus gives rise
to a reasonable inference that defendant got into the van driven by his girlfriend within minutes
after the shooting. The prosecutor accurately summarized the trial testimony about defendant’s
departure in her rebuttal closing argument. Because the prosecutor accurately summarized the
trial testimony in this regard, no prosecutorial misconduct occurred. Schutte, 240 Mich App at
721.2
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant finally contends that his trial counsel was ineffective for “fail[ing] to object to
several different instances of prosecutorial misconduct.” However, as we have discussed,
defendant has not shown that any prosecutorial misconduct tainted his trial. See Thomas, 260
Mich App at 457 (“Counsel is not ineffective for failing to make a futile objection.”). Although
defendant insinuates that his counsel made other “trial errors and omissions,” he has essentially
abandoned any further claims of error by offering no additional argument or specific detail with
respect to the purported ineffective assistance supplied by his counsel. People v Hoag, 460 Mich
1, 6; 594 NW2d 57 (1999); Kelly, 231 Mich App at 640-641.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Brian K. Zahra
/s/ Kirsten Frank Kelly
2
Because defendant has failed to demonstrate any single instance of prosecutorial misconduct,
we have no cumulative effect of prosecutorial misconduct to consider.
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