PEOPLE OF MI V BERNARD CHAUNCEY MURPHY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
March 3, 2009
9:10 a.m.
Plaintiff-Appellee,
v
No. 258397
Wayne Circuit Court
LC No. 04-001084-01
ON REMAND
Advance Sheets Version
BERNARD CHAUNCEY MURPHY,
Defendant-Appellant.
Before: Borrello, P.J., and Davis and Gleicher, JJ.
GLEICHER, J.
A jury convicted defendant of two counts of armed robbery, MCL 750.529, and one
count of possession of a firearm during the commission of a felony, MCL 750.227b. The trial
court sentenced defendant to concurrent terms of 15 to 30 years’ imprisonment for the armed
robbery convictions and a consecutive term of 2 years’ imprisonment for the felony-firearm
conviction. This Court reversed defendant’s convictions and remanded for a new trial.1 Our
Supreme Court granted the prosecution’s application for leave to appeal. People v Murphy, 477
Mich 1019 (2007). In an order dated June 25, 2008, the Supreme Court reversed this Court’s
decision to grant defendant a new trial and ordered this Court to instead afford defendant “a new
appeal.” People v Murphy, 481 Mich 919 (2008). We now affirm defendant’s convictions.
I. Underlying Facts and Proceedings
Defendant’s convictions arise from the armed robbery of Christopher Holman and his
fiancée, Tammy Isaac, on Thanksgiving morning in 2003. At defendant’s preliminary
1
On July 27, 2006, this Court issued a published opinion reversing defendant’s convictions on
the ground that he was denied the assistance of appellate counsel because his counsel had failed
to file a brief opposing the prosecution’s interlocutory appeal; this Court remanded for a new
trial. The prosecution then filed a motion for reconsideration, arguing that defendant’s
ineffective assistance claim should fail because he did not establish prejudice. This Court
vacated the July 2006 opinion and on reconsideration issued an unpublished opinion that again
reversed defendant’s convictions and remanded for a new trial. People v Murphy (On
Reconsideration), unpublished opinion per curiam of the Court of Appeals, issued October 12,
2006 (Docket No. 258397).
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examination, Holman described how, while en route to Detroit’s Thanksgiving Day parade in a
Dodge Neon, the victims stopped at a traffic light. According to Holman, a black Dodge Ram
pickup truck “bumped” the Neon from behind. Holman got out and walked to the rear of the car
to inspect it for damage. As Holman returned to the Neon, he heard the pickup’s driver inquire
whether the truck had hit Holman’s vehicle. Holman advised the driver that a collision had
occurred, but caused no discernible damage.
As Holman attempted to get into the car, he heard someone yell, “Get down on the
ground now.” Holman looked toward the truck and saw defendant standing behind its passenger
door, pointing “[s]ome type of shotgun” at him. Holman got down on his hands and knees and
produced his wallet in response to the pickup driver’s demand for money. As he handed the
driver money from the wallet, Holman heard defendant knock on the Neon’s passenger window
and yell: “Get out of the car now. Get out of the car now.” Holman could not see exactly what
happened, but believed that Isaac “was thrown onto the ground.” When Holman turned, he
observed defendant inside the Neon “going through our stuff.” Holman testified that defendant
stole two cell phones and Isaac’s purse. After the Dodge Ram departed, Holman and Isaac drove
to a state police post and reported the incident. On the basis of Holman’s testimony, the district
court bound defendant over for trial on the charged counts of armed robbery and felony-firearm.
Defendant’s trial commenced on April 22, 2004, before Judge Deborah Thomas. After
the parties selected a jury, the prosecutor and defense counsel addressed with Judge Thomas
several “housekeeping matters,” including “the People versus Hall issue.”2 (Emphasis added.)
This evidentiary matter concerned a separate case filed against defendant that arose from a
carjacking committed on the day after Thanksgiving 2003. The prosecutor sought to introduce in
defendant’s armed robbery prosecution evidence obtained at the time of defendant’s arrest in the
carjacking case. Coincidentally, Judge Thomas had been assigned to preside over the carjacking
case. By the time of defendant’s armed robbery trial, Judge Thomas had dismissed the
carjacking charges filed against defendant and a codefendant on the basis that inadequate
evidence linked defendant to the carjacking.
This Court ultimately reversed Judge Thomas’s decision to quash the carjacking charges
against defendant.3 In an unpublished opinion, this Court summarized the facts surrounding the
alleged carjacking as follows:
[T]he victim was delivering newspapers in Detroit at approximately 4:30
[a.m.] when a black pickup truck approached, someone from the truck pointed a
sawed-off long gun at him and demanded that he not look in that direction, and
told him to lie face down on the ground. Multiple assailants then threatened to
shoot him, demanded money, searched him, and took his glasses and keys. The
victim saw both the truck and his own car driving away. He called the police with
2
People v Hall, 433 Mich 573; 447 NW2d 580 (1989).
3
People v Jones, unpublished opinion per curiam of the Court of Appeals, issued November 10,
2005 (Docket Nos. 254939 and 254964).
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his description of the truck and firearm, but he could not identify any of the
assailants.[4]
During the preliminary examination conducted in the carjacking case, Detroit police sergeant
Ramon Childs explained that shortly after hearing a report regarding the carjacking, he located a
black Dodge Ram pickup and followed it to a gas station. As Childs watched from across the
street, one of the pickup’s passengers left the truck and entered the gas station. Another
passenger walked to the rear of the gas station, while the other two occupants remained outside
the truck, near the gas pumps. The four men got back in the pickup and began to drive away.
The police stopped the pickup shortly thereafter and arrested its occupants, including defendant.
The police found a live shotgun shell inside the pickup. A search at the gas station yielded a
sawed-off shotgun in a dumpster behind the building and additional live shotgun shells in trash
receptacles near the gas pumps. All the live shells were “caliber consistent” with the shotgun.
The prosecutor argued that Childs’s testimony summarizing his observations after the
carjacking was admissible against defendant at his armed robbery trial pursuant to Hall.
Specifically, the prosecutor urged the trial court to admit “the testimony of the officer that made
the observations before the gas station and at the gas station and the officers that were involved
in the detention of the Black Dodge Ram Pickup and the officers that were involved in securing
the evidence that I’ve made reference to.” The prosecutor stated that he would “sanitize out” the
carjacking circumstances prompting Childs’s pursuit of the pickup. Defense counsel countered
that Childs’s testimony failed to establish that any of the men at the gas station “had a shotgun in
his hand or even an object of any sort.” Judge Thomas ruled that the prosecutor could present
testimony related to the shotgun shells found in the pickup and the trash cans near the gas pumps,
but not the shotgun or testimony regarding its discovery “because nobody gave any testimony
they saw anybody taking anything behind the gas station.” In her bench ruling, Judge Thomas
elaborated that Childs “didn’t say he saw anybody going around the store carrying anything. If I
had that, I would allow it. I don’t have any of that.”
On April 23, 2004, the prosecutor filed an emergency application for leave to appeal in
this Court. Late that afternoon, this Court entered an order peremptorily reversing Judge
Thomas’s exclusion of evidence of the shotgun and remanding for further proceedings. People v
Murphy, unpublished order of the Court of Appeals, entered April 23, 2004 (Docket No.
255101). On April 26, 2004, defense counsel informed Judge Thomas that she had not received
notice of the prosecutor’s appeal and planned to file a motion for reconsideration. Judge Thomas
granted a stay of the proceedings, but defense counsel failed to pursue appellate relief.
In September 2004, the armed robbery case proceeded to trial before Judge Michael
Hathaway, and a jury convicted defendant of all charges. Defendant filed an appeal of right, and
this Court reversed his convictions because he entirely lacked the assistance of counsel during
the prosecutor’s interlocutory appeal. People v Murphy (On Reconsideration), unpublished
opinion per curiam of the Court of Appeals, issued October 12, 2006 (Docket No. 258397). Our
Supreme Court thereafter reversed this Court’s order granting defendant a new trial and instead
held that defendant is entitled to a new appeal. The Supreme Court advised that this Court “is
4
Id. at 1.
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not bound by the law of the case doctrine” and further directed this Court to consider whether
voice identification evidence was properly admitted during defendant’s trial. Murphy, 481 Mich
at 919.
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II. The Shotgun Evidence
Defendant contends that because no testimony directly linked him and the shotgun, Judge
Thomas properly ruled the shotgun evidence and Childs’s testimony inadmissible. According to
defendant, the prosecutor established only defendant’s proximity to the shotgun and the shells,
not his knowing possession and control over these items. Defendant additionally asserts that
even if he had possessed the shotgun, MRE 403 would bar its admission because of the
substantial danger that this evidence would confuse the issues and mislead the jury. We review
for an abuse of discretion a trial court’s decision whether to admit evidence. People v Lukity,
460 Mich 484, 488; 596 NW2d 607 (1999). A trial court abuses its discretion when it selects an
outcome that falls outside the range of reasonable and principled outcomes. People v Babcock,
469 Mich 247, 269; 666 NW2d 231 (2003). We review de novo whether a court rule or statute
precludes the admission of evidence. People v Martin, 271 Mich App 280, 315; 721 NW2d 815
(2006), aff’d 482 Mich 851 (2008).
In People v Hall, 433 Mich 573, 575; 447 NW2d 580 (1989), our Supreme Court
considered whether MRE 404(b) precluded the admission of evidence regarding other crimes,
wrongs, or acts that otherwise qualified as relevant and material to a defendant’s guilt. The
defendant in Hall was charged with having committed an armed robbery at a videotape rental
store. The victims of the robbery testified that their assailant had been armed with a sawed-off
shotgun and escaped in a rust-colored, mid-size vehicle. Id. at 575-577. Approximately seven
months later, a witness observed the defendant standing near a dry cleaning establishment
holding a large brown bag. The witness believed that the bag contained a gun and reported his
suspicion to the dry cleaning store’s manager. When the witness left the store, he noticed the
defendant sitting in a tan or rust-colored car. Id. at 577. The store manager saw the defendant
place the bag into the car through an open window and walk away. Id. at 577-578. Store
personnel summoned the police, and an officer testified that he looked into the car and observed
a black plastic bag lying on the floor. Inside the bag, the officer found a large brown grocery bag
containing a sawed-off shotgun. On the car’s front seat, the officer found a business card for the
videotape store. The trial court allowed the prosecutor to introduce evidence surrounding the
defendant’s arrest, including his possession of the shotgun. On appeal, the defendant contended
that the introduction of the evidence violated MRE 404(b). Id. at 578.
The Supreme Court affirmed the defendant’s conviction, holding that the trial court
properly admitted the shotgun and the testimony of the witnesses who participated in supplying
information used by the police to arrest the defendant:
We hold that, as direct physical evidence of the commission of the armed
robbery, the shotgun was properly admitted notwithstanding the fact that mere
possession of it was a distinct criminal offense. We also hold that the testimony
of the various witnesses to the circumstances surrounding the defendant’s arrest
was admissible to establish the defendant’s possession and control of both the
shotgun and a vehicle similar to the one used in the charged robbery. In both
instances, admissibility is governed by MRE 401 and not, as defendant claims, by
MRE 404(b). [Id. at 575.]
The Supreme Court reasoned that evidence of the defendant’s “possession of a weapon of the
kind used in the offense with which he is charged is routinely determined by courts to be direct,
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relevant evidence of his commission of that offense.” Id. at 580-581. In Hall, the Supreme
Court determined that “both the gun and the testimonial evidence of defendant’s possession of it
and the car . . . were clearly relevant to make the defendant’s identity as the gunman in the
charged robbery ‘more probable . . . than it would be without the evidence.’” Id. at 582-583,
quoting MRE 401.
Here, unlike in Hall, the prosecutor lacked direct evidence demonstrating defendant’s
possession and control of the weapon. However, the appropriate test is not whether sufficient
evidence existed to convict defendant of constructively possessing the shotgun, but whether the
circumstances surrounding the gun’s discovery tended to establish defendant’s connection to it.
“This demand is one of simple, logical relevancy, measured by logic, common experience, and
common sense, apart from legal technicalities.” People v McKinney, 410 Mich 413, 418 n 3; 301
NW2d 824 (1981). Alternatively stated, “the general rule is that evidence ‘is admissible if
helpful in throwing light upon any material point in issue’.” Id. at 419 (citation omitted). “A
material fact is one that is ‘“in issue” in the sense that it is within the range of litigated matters in
controversy.’” People v Sabin (After Remand), 463 Mich 43, 57; 614 NW2d 888 (2000)
(citations omitted). The central issue in controversy during defendant’s armed robbery trial was
whether Holman correctly identified him as one of the Thanksgiving Day assailants. Evidence
that defendant drove a black Dodge Ram pickup the next day and parked it in proximity to a
discarded sawed-off shotgun and with consistent caliber shells tended to prove defendant’s
identity as one of the assailants who had robbed Holman and Isaac on Thanksgiving Day. See
Hall, 433 Mich at 582-583.
In this Court’s previous opinion regarding precisely the same issue, we observed that
there was evidence that Murphy was driving the truck when the police stopped it.
That Murphy was driving then is circumstantial evidence that he assumed the role
of driver in general. The obvious inference from stopping the truck both for the
assault, and then to jettison contraband, is that the driver was fully involved in
those actions. . . . Murphy’s role as driver circumstantially links him to the crime
beyond his mere presence in the truck . . . . [People v Jones, unpublished opinion
per curiam of the Court of Appeals, issued November 10, 2005 (Docket Nos.
254939 and 254964), at 2.]
Despite Childs’s failure to report seeing one of the pickup’s passengers carry an object to the
dumpster, the surrounding circumstances supported a reasonable inference that the black Dodge
Ram containing defendant stopped at the gas station so that its occupants could dispose of
evidence of their crimes, including both the shotgun and shells compatible with it. This
evidence, which tended to show that defendant and his fellow passengers participated in a joint
enterprise designed to dispose of the contraband, logically linked defendant to a sawed-off
shotgun. Holman testified that his assailants traveled in a black Dodge Ram and possessed a
sawed-off shotgun. “‘The acid test is logical relevance, and a logically relevant act is admissible
even when the finding of logical relevance requires a long chain of intervening inferences.’”
People v VanderVliet, 444 Mich 52, 61; 508 NW2d 114 (1993), quoting Imwinkelried,
Uncharged Misconduct Evidence, § 2:17, pp 45-46.
Evidence that (1) defendant drove a black pickup truck involved in a recent alleged
carjacking, (2) the occupants of the truck possessed live cartridges, (3) the truck stopped at a gas
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station where police found live cartridges in the trash cans, and (4) the police found a shotgun
compatible with the cartridges behind the gas station tended to prove that defendant participated
in the carjacking and knew that the shotgun was being discarded along with the shells. And both
the shotgun and the black pickup truck linked defendant to the robbery of Holman and Isaac.
Although circumstantial, this evidence had a tendency to corroborate defendant’s identity as a
participant in the armed robbery, apart from also constituting evidence of his involvement in a
carjacking. Judge Thomas’s apparent ruling that direct rather than circumstantial evidence must
connect defendant and the shotgun lacks legal support. “‘[C]ircumstantial evidence is oftentimes
stronger and more satisfactory than direct evidence.’” People v Wolfe, 440 Mich 508, 526; 489
NW2d 748 (1992) (citation omitted). Reasonable inferences derived from circumstantial
evidence are reviewed in the same manner as those arising from direct evidence. Id.
Accordingly, Judge Thomas abused her discretion by ruling that in the absence of direct
evidence linking defendant and the shotgun, the prosecutor could not introduce the shotgun at
defendant’s trial.
Defendant next maintains that even if the challenged evidence satisfied the relevancy
criteria set forth in Hall, it qualified as substantially more prejudicial than probative and should
have been excluded under MRE 403. Defendant unsuccessfully raised this objection at his trial.5
MRE 403 proscribes the admission of relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” (Emphasis added.) All relevant evidence will be damaging to some extent. People v
Mills, 450 Mich 61, 75; 537 NW2d 909 (1995). The fact that evidence is prejudicial does not
make its admission unfair. Unfair prejudice exists only “where either ‘a probability exists that
evidence which is minimally damaging in logic will be weighed by the jurors substantially out of
proportion to its logically damaging effect,’ or ‘it would be inequitable to allow the proponent of
the evidence to use it.’” People v McGuffey, 251 Mich App 155, 163; 649 NW2d 801 (2002),
quoting Mills, 450 Mich at 75-76.
Although the carjacking-related evidence involved a serious and entirely separate crime,
the risk of unfair prejudice did not substantially outweigh the probative force of the evidence,
which connected defendant to the Dodge Ram and the shotgun. The record supports that the
prosecutor never argued to the jury that an aspect of defendant’s character, or his alleged
participation in a different, uncharged crime, established his guilt in the armed robbery.
Moreover, in the final instructions to the jury, Judge Hathaway provided a cautionary instruction,
limiting the potential for undue prejudice. Consequently, Judge Hathaway did not abuse his
discretion by ruling that the admission of evidence of the post-carjacking events on the day after
Thanksgiving 2003 did not contravene MRE 403.
5
Defendant contends that Judge Thomas excluded the shotgun evidence on the grounds of unfair
prejudice under MRE 403 as well as relevancy. Our review of the record reveals no support for
that contention. Rather, Judge Thomas clearly ruled that if the prosecutor had “something else
that might make it both relevant and material, then it’s in.”
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III. Voice Identification Evidence
Defendant lastly challenges Judge Thomas’s decision to admit Holman’s identification of
defendant. Holman identified defendant in a lineup only after requesting that members of the
lineup say, “Get down on the ground now.” After hearing defendant utter those words, Holman
selected him from the lineup participants and identified him as the passenger with the shotgun.
Defendant contends that Holman’s voice identification should have been excluded because it was
not based on a peculiarity in defendant’s voice or on sufficient knowledge about defendant’s
vocal characteristics. We review for clear error a trial court’s factual findings regarding a motion
to suppress evidence. People v Farrow, 461 Mich 202, 208-209; 600 NW2d 634 (1999).
However, this Court reviews de novo a trial court’s conclusions of law and ultimate decision
regarding a motion to suppress evidence. People v Garvin, 235 Mich App 90, 96-97; 597 NW2d
194 (1999).
“The fairness of an identification procedure is evaluated in light of the total
circumstances to determine whether the procedure was so impermissibly suggestive that it led to
a substantial likelihood of misidentification.” People v Hornsby, 251 Mich App 462, 466; 650
NW2d 700 (2002). Vocal identification evidence is competent if the identifying witness
demonstrates “certainty . . . in the mind . . . by testimony that is positive and unequivocal.”
People v Hayes, 126 Mich App 721, 725; 337 NW2d 905 (1983). Further, voice identification
must be based on a peculiarity in the voice or on “‘sufficient previous knowledge by the witness
of the person’s voice.’” People v Bozzi, 36 Mich App 15, 19; 193 NW2d 373 (1971) (citation
omitted). Holman had ample opportunity to hear and see the robber with the shotgun. We find
that the totality of the circumstances, combined with Holman’s certainty regarding his
identification of defendant, supplied sufficient reliability of the voice identification.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Stephen L. Borrello
/s/ Alton T. Davis
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