PEOPLE OF MI V LANIER MCPHERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
July 20, 2004
9:10 a.m.
Plaintiff-Appellee,
v
No. 242767
Wayne Circuit Court
LC No. 01-000730-01
LANIER MCPHERSON,
Defendant-Appellant.
Official Reported Version
Before: Saad, P.J., and Sawyer and Hood, JJ.
SAAD, P.J.
Four "friends" were involved in the shooting of two victims, Abdul Scott and Max King,
one of whom, Mr. Scott, died. One of the four friends, defendant Lanier McPherson, at first
pointed the finger at Delano Gaffney, later confessed that he was the shooter, but claimed selfdefense and then later claimed that Cherell King was the shooter. And, Gaffney pointed the
finger at Cherell King, who, in turn, implicated McPherson, Gaffney, and Dorsey. Cherell King
later was murdered by Gaffney and Dorsey, both of whom were convicted of the second-degree
murder of Mr. King. McPherson was twice tried for the murder of Scott; the first trial was
declared a mistrial because the jury was deadlocked and, in the second trial, the jury convicted
defendant and this appeal followed.
A jury convicted defendant Lanier McPherson (defendant) of first-degree murder,1 felon
in possession of a firearm,2 and possession of a firearm during the commission of a felony.3 The
trial court sentenced defendant to life imprisonment for the first-degree murder conviction, a
concurrent 3-1/2- to 5-year term of imprisonment for the felon in possession conviction, and a
consecutive five-year term for the felony-firearm conviction. Defendant appeals his convictions
and sentences, and we affirm.
1
MCL 750.316(1)(a).
2
MCL 750.224f.
3
MCL 750.227b.
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I. FACTS AND PROCEDURAL HISTORY
On April 24, 2002, a jury found defendant guilty of the fatal shooting of Abdul Scott.4
Shortly after the August 19, 2000, shooting in issue, the prosecution charged defendant, Delano
Gaffney, and Marcelle Dorsey in this case, but at the preliminary examination, the charges
against Gaffney and Dorsey were dismissed for insufficient evidence because Cherell King,5
who had implicated defendant, Gaffney, and Dorsey, failed to appear at the hearing. King, who
was present with defendant, Gaffney, and Dorsey at the time of the shooting, was murdered
before defendant's trial, and Gaffney and Dorsey were convicted of second-degree murder for the
killing of King.
Defendant was tried in January 2002, but the trial court declared a mistrial because the
jury was deadlocked. The jury in the second trial returned the convictions from which defendant
appeals. At trial, the prosecution's theory of the case was that defendant, accompanied by
Dorsey, Gaffney, and King, shot the victims because earlier on the day of the shooting the
victims had laughed about the fact that Gaffney's car was stolen. Though defendant admitted at
trial that he was present during the shooting, he claimed that King shot the victims.
Lucretia Thompson, defendant's girlfriend at the time of the shooting, testified that
Gaffney, Dorsey, and King were defendant's friends. Thompson testified that on the morning of
August 19, 2000, she drove King, defendant, and defendant's uncle to a funeral home on West
Grand Boulevard in Detroit. Defendant asked Thompson to take a gun home with her and told
her that the gun was not his, but that he did not want it at the funeral home. Defendant placed
the gun under the driver's seat of the car, and Thompson drove home, but, later, defendant
phoned her and told her to "forget it, bring it back." Thompson drove back to the funeral home,
at which time defendant took the gun from the car.
Montez Meadows testified that on the morning of August 19, 2000, after she left an adult
foster care home located at the intersection of West Grand Boulevard and Linwood, she saw two
men (the victims) walking on West Grand Boulevard. She and the two men stood at the corner,
waited for the traffic signal to change so they could cross the street, and she witnessed a car
screech to a halt in front of them. Meadows testified that defendant and another person got out
of the car and began running toward Meadows and the two men and that the two unknown
assailants were shooting at them. Meadows and the two men she was standing with fell to the
ground; both men were shot. Meadows testified that both defendant and the other man from the
car had a gun, and that both were firing their guns, but she did not know which of the two guns
fired the bullets that struck the victims.6 Understandably frightened, Meadows crawled into the
4
Another victim, Max King, was shot during the incident, but did not die from his wounds.
5
To avoid confusion, we will refer to Cherell King as "King," and Max King as "Max," or
collectively with Scott as "the victims."
6
The police recovered eight shell casings at the scene and a total of two bullets from the victims.
A police forensic examiner testified that the eight shell casings were fired by the same nine(continued…)
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foster care home and hid, and continued to hide even after the police arrived.7 Scott ultimately
died of his injuries, and Max, who was injured, did not appear at defendant's trial.
Nearly three months after the shooting, on November 22, 2000, the police arrested King
and defendant, and, on November 23, Investigator Barbara Simon of the Detroit Police
Department interviewed defendant about the shooting. Defendant initially claimed ignorance of
the event and then became belligerent, at which point Simon ended the interview. Defendant
claims he asked for an attorney and that Simon refused.
On Friday, November 24, 2000, Investigator Terrill Shaw took a statement from King.
Shaw showed this statement to Investigator James Fisher, who took a formal statement from
defendant that afternoon. The statement contained yet another story about what happened on
August 19, 2000: Gaffney complained that his car was stolen, and he said he thought he knew
who had taken it. Gaffney told defendant to have Thompson bring Gaffney's gun to him.
Gaffney, Dorsey, and King drove around in a Jeep Cherokee until Gaffney saw the victims,
handed his gun to King, and told King to "smoke both of them." After some shots were fired,
Gaffney got out of the Jeep and into another vehicle, while King returned to the Jeep, and
defendant and Dorsey drove away. Investigator Fisher told defendant that he did not believe
defendant's story and arranged for defendant to be interviewed by Investigator Andrew Sims,
who specialized in polygraph examinations.
On Sunday, November 26, 2000, Sims, the polygraph specialist, interviewed defendant,
and defendant initially told a story similar to the written statement he gave to Fisher. Sims told
defendant he did not believe his story, and defendant again changed his story and finally made a
written statement in which he admitted that he shot the victims, but claimed self-defense.
Defendant was interviewed once more by Investigator Dwight Pearson, who was watching the
polygraph examination while seated in another room. Pearson then conducted his own interview
of defendant, and defendant, once again, stated that he had shot the victims in self-defense.
However, at trial, rather than claiming self-defense, defendant denied being the shooter
and, instead, testified that King, who by this time had been murdered by Gaffney and Dorsey,
was the shooter. Defendant, of course, desired to have Gaffney testify on his behalf that King,
not defendant, was the shooter. Accordingly, the trial court granted defendant's request to read
the prior testimony of Gaffney into the record. Gaffney's prior testimony was read to the jury
(…continued)
millimeter handgun and that the two bullets retrieved from the victims were fired by the same
nine-millimeter or .38-caliber handgun. However, it is not clear from the record, and indeed the
police witness testified that he could not determine, whether the bullets recovered from the
victims were fired by the same weapon from which the eight casings were expelled. Other than
the testimonial evidence provided by Meadows, the tangible or physical evidence is inconclusive
with respect to whether there were one or two handguns fired during this incident.
7
The police contacted Meadows approximately 1-1/2 years later, and she testified at two pretrial
hearings.
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because Gaffney chose to exercise his Fifth Amendment right against self-incrimination.8
Gaffney testified that King, not defendant, was the person who shot the victims.
Testifying in his own defense, defendant stated that Gaffney told King to shoot the
victims because Gaffney thought that they stole his car. He testified that, after his arrest, he did
not want to make a statement, but when Fisher questioned him, defendant knew that Fisher had
previously arrested defendant's mother and told defendant that something bad would happen to
defendant's mother if defendant did not give a statement. Defendant also testified that Fisher
told him that Gaffney was released after he made a statement inculpating King. Defendant
further told Fisher that King was the shooter. He also testified that he falsely told Fisher that he
handed a gun to Gaffney, who handed it to King, because he thought that Fisher would release
him upon learning this information. However, instead of releasing defendant, Fisher had
defendant interviewed by Sims. Defendant alleged that Sims told him that the only way out
would be to confess to shooting the victims and claim self-defense.
During cross-examination, the prosecutor asked defendant about defendant's motivation
for implicating King, including defendant's changed version of events, and a statement King
gave to the police implicating defendant:
Q. And you had known that before you gave your statement to
Investigator Fisher on November twenty-forth [sic] at 3:30 in the afternoon that
day, you already knew that Mr. King had ratted you out, isn't that true?
A. He ended up telling me that he said that I did it . . . .
Defendant moved for a mistrial and argued that the admission of King's statement,
through defendant, violated his Sixth Amendment right to confront witnesses against him. US
Const, Am VI and Am XIV. The trial court denied the motion.
II. STANDARD OF REVIEW
We review de novo a claim of constitutional error. People v Rodriguez, 251 Mich App
10, 25; 650 NW2d 96 (2002). However, when a trial court commits an error that denies a
defendant his constitutional rights under the Confrontation Clause, US Const, Am VI and Am
XIV, we need not reverse if the error is harmless beyond a reasonable doubt. People v Smith, 243
Mich App 657, 690; 625 NW2d 46 (2000), citing People v Carines, 460 Mich 750, 774; 597
NW2d 130 (1999).
III. ANALYSIS
8
By the time of defendant's second trial, Gaffney had been convicted of the second-degree
murder of King, but he nonetheless asserted his Fifth Amendment right to remain silent
regarding the murder of Scott.
-4-
A. APPLICABILITY OF CRAWFORD v WASHINGTON
The United States Supreme Court recently held that for testimonial evidence to be
admissible against a defendant, the declarant must be unavailable and the defendant must have
had "a prior opportunity for cross-examination" of the declarant. Crawford v Washington, ___
US ___, ___; 124 S Ct 1354, 1374; 158 L Ed 2d 177, 203 (2004). In so doing, the Court
overruled its previous decision in Ohio v Roberts, 448 US 56; 100 S Ct 2531; 65 L Ed 2d 597
(1986), which held that such evidence could be admitted if it met certain reliability tests. The
Court in Crawford expressly rejected the concept that the reliability of an out-of-court statement
satisfies the Confrontation Clause, and stated that "[d]ispensing with confrontation because
testimony is obviously reliable is akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, 124 S Ct 1371
(emphasis added).
Crawford bars the admission of testimonial, out-of-court statements where the witness is
unavailable and the defendant did not have "a prior opportunity for cross-examination" of the
declarant. Crawford, 124 S Ct 1374. While the Court "[left] for another day any effort to spell
out a comprehensive definition of 'testimonial,'" Crawford, 124 S Ct 1374, it also stated that
"[s]tatements taken by police officers in the course of interrogations are . . . testimonial under
even a narrow standard," Crawford, 124 S Ct 1364. Therefore, under Crawford, King's
statement here is undeniably testimonial in nature. Furthermore, because King was dead at the
time of defendant's trial, King is undeniably an "unavailable witness." Moreover, it is
undisputed that at no time did defendant have the opportunity to cross-examine King.
In the words of the Court in Crawford, "[t]he text of the Sixth Amendment does not
suggest any open-ended exceptions from the confrontation requirement to be developed by the
courts." Crawford, 124 S Ct 1365 (emphasis added).9 However, the Court also made clear that
the Confrontation "Clause . . . does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted." Crawford, 124 S Ct 1369 n 9, citing
Tennessee v Street, 471 US 409, 414; 105 S Ct 2078; 85 L Ed 2d 425 (1985). In Street, the
defendant testified in his own defense, and claimed that his confession was coerced and derived
from an accomplice's testimony. Street, supra at 411. The prosecution successfully moved for
the admission of the accomplice's testimony at trial. Id. The defendant argued that his
Confrontation Clause right had been violated because he had not had the opportunity to crossexamine the accomplice. However, the Court held that the accomplice's confession did not
violate the Confrontation Clause because it was admissible for the limited purpose of allowing
the jury to compare it to the defendant's confession to see whether the defendant's claim that his
confession was coercived or derived from the accomplice's testimony was true. Id. at 413-414.
9
The Court explained that "the historical record" suggests "that the Framers would not have
allowed admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."
Id. at 1365.
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Similarly, here, the prosecution argues that evidence of King's statement was not
introduced for its substance, but, instead, was introduced to show that defendant was aware of
King's statement in light of defendant's testimony that King was the shooter and as part of the
prosecutor's theory that defendant changed his story several times and could not be believed.
The prosecution says that because the statement was not admitted for its substance (to identify
the shooter), it is admissible under Crawford and Crawford's express adoption of the reasoning
in Street. We agree with the prosecution. When viewed in light of defendant's testimony as a
whole, we conclude that the prosecutor's question was designed to impeach defendant's statement
that King was the shooter, particularly in light of defendant's earlier testimony that King had
been murdered by Gaffney and Dorsey because of a dispute over money and because King was
looking to "rat people out" in court. When defendant volunteered testimony that King had
planned to "rat people out," defendant opened the door to questioning by the prosecutor that
King had "ratted out" defendant. Further, defendant changed his version of the facts numerous
times and the prosecution cross-examined defendant to show his lack of credibility, and King's
statement was simply one more element that undermined defendant's credibility. Moreover,
though certainly not dispositive on the issue of the applicability of Crawford, we note that the
prosecution never mentioned or used King's statement during its closing for the purpose of
identifying defendant as the shooter. To the contrary, in closing, the prosecution relied
exclusively on Meadows's eyewitness testimony that identified defendant as a person who shot
the victims and on defendant's inculpatory statements to the police that he shot the victims, albeit
in self-defense. As a result of the foregoing, we hold that the introduction of King's statement
through defendant did not violate the Confrontation Clause, and therefore, the trial court did not
err when it admitted this statement. 10
10
Were we to hold, under Crawford, that the trial court erred in admitting King's statement,
which we do not, we would nevertheless hold that the error was harmless beyond a reasonable
doubt in light of Meadows's unequivocal identification of defendant as one of the victims'
shooters and in light of defendant's own inculpatory statements. Again, were we to hold that
Crawford applies to these facts, we would also find that the decision applies retrospectively
because "'a new rule for the conduct of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final.'" Powell v Nevada, 511 US 79,
84; 114 S Ct 1280; 128 L Ed 2d 1 (1994), quoting Griffith v Kentucky, 479 US 314, 328; 107 S
Ct 708; 93 L Ed 2d 649 (1987). We note also that our Supreme Court has vacated and remanded
at least two opinions of this Court for reconsideration of Confrontation Clause claims in light of
Crawford. People v Bell (On Remand), unpublished opinion per curiam of the Court of Appeals,
issued February 5, 2002 (Docket Nos. 209269, 209270), vacated and remanded, 470 Mich 875
(2004); People v Brown, unpublished opinion per curiam of the Court of Appeals, issued
September 9, 2003 (Docket No. 237027) vacated and remanded, 470 Mich 851 (2004). Finally,
were we to hold that Crawford applies, we would also hold that Crawford overrules sub silentio
People v Schutte, 240 Mich App 713; 613 NW2d 370 (2000), because Schutte relies on our
Supreme Court's decision in People v Poole, 444 Mich 151, 162-163; 506 NW2d 505 (1993),
which, in turn, relies on Roberts, supra at 66. The Court in Crawford expressly overruled
Roberts, and specifically cited Schutte as an example of a court that allowed the admission of
statements under Roberts. Crawford, ___ US ___; 124 S Ct 1371.
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B. INTERROGATION
Additionally, defendant challenges the admissibility of his statements to police
investigators on the ground that the statements violated his Fifth and Sixth Amendment rights to
counsel. Defendant also argues that evidence of his statements to Investigator Sims and
Investigator Pearson should have been excluded on the ground that they were involuntary.
We find no merit to defendant's claim that his Sixth Amendment right to counsel was
violated because defendant does not identify any adversarial judicial proceeding against him
before his statements were given. The Sixth Amendment right to counsel does not attach until
adversarial judicial proceedings are initiated against a defendant. People v Anderson (After
Remand), 446 Mich 392, 402; 521 NW2d 538 (1994); People v Williams, 244 Mich App 533,
538-539; 624 NW2d 575 (2001). The failure to brief the merits of an allegation of error
constitutes an abandonment of the issue. People v Kelly, 231 Mich App 627, 640-641; 588
NW2d 480 (1998); People v Kent, 194 Mich App 206, 210; 486 NW2d 110 (1992).
Whether defendant's Fifth Amendment right to counsel was violated, Edwards v Arizona,
451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and whether defendant's statements to Sims
and Pearson were voluntary turned principally on credibility issues, which were resolved against
defendant. Giving deference to the trial court's superior position to evaluate the credibility of the
witnesses, defendant has not established that his Fifth Amendment right to counsel was violated.
People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999); People v Adams, 245 Mich App
226, 235; 627 NW2d 623 (2001).
Also, we have independently reviewed the record, and again giving due deference to the
trial court's findings, we find no basis for disturbing the court's decision that defendant's
statements were voluntary. People v Shipley, 256 Mich App 367, 372; 662 NW2d 856 (2003).
The delay between defendant's initial arrest for an unrelated matter on November 22, 2000, and
his statements to Sims and Pearson on November 26, 2000, is a relevant factor in determining
whether the statements were voluntary, but the principal focus is not on the mere passage of
time, but on the effect of the delay on defendant. People v Cipriano, 431 Mich 315, 334-335;
429 NW2d 781 (1988). The evidence at the suppression hearing supports the trial court's
findings that defendant knew what he was doing when he signed the advice-of-rights forms and
that, in light of the statements provided by Gaffney and King, defendant agreed to be taken for a
polygraph examination and stated that he wanted to clear his name. Moreover, the delay
between defendant's consent for the polygraph examination and the resulting examination was
because Sims, the polygraph examiner, was not available until two days after Fisher's
questioning of defendant. Defendant's statement to Sims occurred at the polygraph examination
under circumstances in which defendant was told that he was untruthful. Defendant's statement
to Pearson was made after the statements to Sims and contained the same admissions. The
totality of the circumstances surrounding both statements indicates that they were made
voluntarily. People v Daoud, 462 Mich 621, 635; 614 NW2d 152 (2000); Cipriano, supra;
People v Emanuel, 98 Mich App 163, 182; 295 NW2d 875 (1980).
C. LIMITATION OF CROSS-EXAMINATION
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Defendant claims erroneously that he was denied his Sixth Amendment right of
confrontation when the trial court limited his cross-examination of Meadows at trial. Defendant
failed to preserve this claim of error because he did not specifically object at trial on this ground
nor did he make an adequate offer of proof that identified what relevant evidence he was unable
to present or what issues he was unable to adequately explore because of the trial court's
limitation. People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984); People v Considine,
196 Mich App 160, 162; 492 NW2d 465 (1992). Defense counsel's mere statement that the trial
court's ruling would substantially limit his intended cross-examination was insufficient to
properly preserve this claim for appeal. Accordingly, our review of this issue is limited to
whether defendant has shown a plain error affecting his substantial rights. Carines, supra at 763.
We find no support for defendant's claim that the trial court limited his cross-examination
solely because the witness was nervous. Quite apart from considering the distraught condition of
the witness, the trial court correctly observed that defense counsel asked numerous questions on
the same points. The trial court did not preclude defendant from placing before the jury any facts
from which bias, prejudice, or lack of credibility might be inferred. People v Cunningham, 215
Mich App 652, 657; 546 NW2d 715 (1996); People v Mumford, 183 Mich App 149, 153; 455
NW2d 51 (1990). Because defendant has not shown that he was denied a reasonable opportunity
to test the truthfulness of Meadows's testimony on any material issue, we conclude that he has
not shown plain error. Hackett, supra at 344; People v Adamski, 198 Mich App 133, 139; 497
NW2d 546 (1993).
D. ALLEGED UNRESPONSIVE WITNESS TESTIMONY
Defendant also maintains that reversal is required because Sims11 gave unresponsive
testimony, on cross-examination by defense counsel, that denied him a fair trial. We conclude
that defendant waived his right to seek appellate review of Sims's response because defendant
sought opinion testimony from Sims about interview techniques. The potential that Sims could
provide an opinion harmful to the defense was affirmatively waived by defense counsel's
conduct. People v Riley, 465 Mich 442, 448; 636 NW2d 514 (2001). Under the doctrine of
invited error, a party waives the right to seek appellate review when the party's own conduct
directly causes the error. People v Jones, 468 Mich 345, 352; 662 NW2d 376 (2003). Here,
where defendant clearly waives this issue by inviting the alleged error and fails to object, he has
lost his right to assert this issue on appeal. See People v Carter, 462 Mich 206, 215-216; 612
NW2d 144 (2000).12
11
Although defendant's argument refers to Sims as the polygraph examiner, this fact was not
disclosed to the jury. Rather, Sims was referred to at trial as an interview specialist.
12
We reject defendant's alternative claim that defense counsel was ineffective for failing to
object to Sims's testimony. Limiting our review to error apparent from the record, defendant has
not overcome the presumption that counsel failed to object as a matter of trial strategy. People v
Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000), People v Avant, 235 Mich App 499, 507;
597 NW2d 864 (1999).
-8-
E. ALLEGED PROSECUTORIAL MISCONDUCT
Defendant asserts that the prosecutor's remark during rebuttal argument that King had
been shot in the head and his body dumped in Hamtramck deprived him of a fair trial because the
remark lacked evidentiary support. We disagree. Although the prosecutor's remark was not
supported by the evidence,13 the jury heard testimony about Gaffney being charged with King's
murder. Furthermore, defendant himself testified about this fact, that he initially implicated
Gaffney in King's murder, and that Gaffney was tried for the murder of King. Moreover, as the
trial court observed when addressing defendant's motion for a mistrial, defendant did not timely
object to the prosecutor's remark. Under the circumstances, the trial court's jury instruction that
"[t]he lawyers' statements or arguments, they are not evidence" was sufficient to dispel any
prejudice. Therefore, this unpreserved issue does not warrant appellate relief. Schutte, supra at
720-722.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
13
However, it is undisputed that King was murdered, that Gaffney and Dorsey were convicted of
second-degree murder, and that defendant had, indeed, testified that defendant earlier implicated
Gaffney in the murder of King. Though Gaffney and Dorsey had been convicted of seconddegree murder before defendant's second trial, the fact of this conviction had not been presented
to the jury.
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