PEOPLE OF MI V DAVID JAMES EDDLEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 19, 2002
Plaintiff-Appellee,
v
No. 224957
Wayne Circuit Court
Criminal Division
LC No. 97-000801
DAVID JAMES EDDLEMAN,
Defendant-Appellant.
Before: Owens, P.J., and Holbrook, Jr., and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of second-degree murder,
MCL 750.317, and possession of a firearm during the commission of a felony (felony firearm),
MCL 750.227b. Defendant was sentenced to thirty to sixty years’ imprisonment for the murder
conviction and a consecutive two-year term for the felony firearm conviction. We affirm.
Defendant’s convictions stem from the shooting death of 16 year-old Joane Georgescu.
Georgescu was killed when a bullet fired at the car, in which she was riding, struck her in the
heart. The bullet entered through the trunk and passed through the back seat before striking
Georgescu. The shooting was allegedly ordered by the leader of a street gang to which defendant
belonged.
Defendant first argues that the trial court erroneously allocated the burden of proof at the
hearing on his motion to suppress his police confession. We review this issue de novo on the
entire record. People v Daoud, 462 Mich 621, 629; 614 NW2d 152 (2000). Defendant argued
below that the police fabricated the confession and then coerced him to sign it. Where
a defendant claims that he involuntarily signed a statement and that the statement
was fabricated by police, the trial court must hold a Walker[1] hearing prior to
introduction of the statement at trial. At the hearing the trial court must
determine, assuming the defendant made the statement, whether he did so
voluntarily. If it is found that the defendant voluntarily made the statement, the
1
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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defendant is free to argue to the jury that the police fabricated it. However, if the
trial court at the hearing finds the statement was involuntarily made, the statement
is inadmissible, regardless of the defendant’s claim that he actually never made it.
[People v Neal, 182 Mich App 368, 372; 451 NW2d 639 (1990).]
As defendant correctly observes, the prosecution must prove by a preponderance of the
evidence that there was a valid waiver of the right against self-incrimination. People v
Etheridge, 196 Mich App 43, 57; 492 NW2d 490 (1992). We agree with defendant that the trial
court erred because it refused to suppress the statement, despite concluding that defendant and
the interrogating officer were equally credible in their diametrically opposing versions of what
happened with regard to the voluntariness issue. The necessary implication of the trial court’s
conclusion is that the prosecutor had not sustained its burden of proving a voluntary confession
by a preponderance of the evidence.
Nonetheless, we conclude that reversal is not warranted because the error was harmless.
People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994). The testimony
of several witnesses clearly implicated defendant in the crime. Brian Babbitt, also a member of
defendant’s street gang, was in a car traveling behind the car defendant was riding in on the night
of the shooting. Babbitt testified that he witnessed shots coming from the passenger side of
defendant’s car, where defendant was seated. Two other gang members, Brian Weaver and
Thomas Valastek, testified that they heard defendant admit to being the shooter. Defendant also
told a fellow inmate that he had shot and killed Georgescu. Given the weight of this evidence,
we conclude that the erroneous admission of the confession was harmless beyond a reasonable
doubt. Id.
Next, defendant argues that reversal is required because the trial court erred in failing to
fully instruct the jury on the various concepts of accessory culpability when responding to a jury
question. We disagree.
An accessory after the fact is someone “‘who, with knowledge of the other’s guilt,
renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.’”
People v Lucas, 402 Mich 302, 304; 262 NW2d 662 (1978), quoting Perkins, Criminal Law (2d
ed.), p 667. In this case, there was absolutely no evidence that defendant played such a role.
Therefore, the trial court did not err in failing to instruct the jury on accessory after the fact.
Further, there is no longer any distinction between an accessory before the fact, and an
aider and abettor. People v Smielewski, 235 Mich App 196, 202-203; 596 NW2d 636 (1999).
An aiding and abetting instruction is appropriate when there is evidence that more than one
person was involved in committing the crime, and that the defendant’s role may have been less
than direct participation. People v Bartlett, 231 Mich App 139, 157; 585 NW2d 341 (1998).
Here, however, there was no evidence that defendant’s role in the crime was anything less than
direct participation. Therefore, the trial court did not err in refusing to instruct on aiding and
abetting.
Defendant next argues that the trial court erred in finding that the prosecution exercised
due diligence in assisting the defense in attempting to locate two res gestae witnesses, and further
erred in refusing to give a missing witness instruction. We disagree. The prosecutor’s former
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duty to exercise due diligence in producing res gestae witnesses “has been replaced with an
obligation to provide notice of known witnesses and reasonable assistance to locate witnesses on
defendant’s request.” People v Burwick, 450 Mich 281, 289; 537 NW2d 813 (1995). We are
satisfied from our review of the record that the trial court did not err in finding that the
prosecution provided reasonable assistance in attempting to locate the two missing witnesses.
People v Long, 246 Mich App 582, 586; 633 NW2d 843 (2001). Thus, the trial court properly
concluded that defendant was not entitled to a missing witness instruction.
Defendant next argues that the trial court erred when, in responding to a jury question
concerning the felony-firearm charge, it essentially instructed the jury on the uncharged crime of
carrying a concealed weapon in a vehicle. We agree with defendant that the trial court erred
when it responded to the jury’s question by reading a hornbook passage that essentially paralleled
the instruction for the offense of carrying a weapon in a vehicle,2 CJI2d 11.1(4)-(6), which was
not charged in this case. However, we find this error to be harmless. See People v Duncan, 462
Mich 47, 54; 610 NW2d 551 (2000) (observing that “an instructional error regarding one element
of a crime, whether by misdirection or omission, is subject to a harmless error analysis”).
The trial court initially correctly instructed the jury on the elements of felony-firearm,
using as its paradigm the standard instruction found at CJI2d 11.34. When the jury asked to be
re-instructed on the charge during the second day of deliberations, the court re-read the correct
instruction it originally gave. Later, the jury sent out a note asking whether a person can be
guilty of felony-firearm if that person was only in the car at the time of the shooting. It was in
response to this question that the court read the following hornbook passage:
To support a conviction for carrying a weapon in an automobile, the
prosecution must show (1) the presence of a weapon in a vehicle operated or
occupied by the defendant, (2) that the defendant knew or was aware of its
presence, and (3) that he or she was “carrying” it. [3 Gillespie, Michigan
Criminal Law & Procedure (2001 Revision), § 80:21, p 645.]3
Pursuant to CJI2d 11.34, the jury was instructed that in order to convict defendant of
felony-firearm, the prosecution must prove that defendant knowingly carried or possessed a
firearm at the time of the murder. The second and third elements in the hornbook passage
essentially mirror this element of felony-firearm. Further, in the context of a felony-firearm
charge, the first element in the hornbook passage can be reasonably read as correctly pointing out
that possession of the firearm can be actual or constructive. See People v Hill, 433 Mich 464,
469-471; 446 NW2d 140 (1989). While not perfect, we conclude that taken as a whole the
instructions fairly presented the issue to be tried and sufficiently protected defendant’s rights.
People v Brown, 239 Mich App 735, 746; 610 NW2d 234 (2000). Additionally, given the weight
of the evidence adduced at trial, we conclude that failure to reverse defendant’s felony-firearm
conviction would not be “inconsistent with substantial justice.” MCR 2.613(A).
2
MCL 750.227(2).
3
The format of this quote is taken from the Gillespie text and not from the trial transcript. The
language, however, is identical.
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Lastly, in a supplemental pro se brief, defendant argues that the prosecutor’s comments
during rebuttal closing argument erroneously shifted the burden of proof and improperly
impinged on his right not to testify, thus depriving him of a fair trial. We disagree. Claims of
prosecutorial misconduct are reviewed on a case-by-case basis, and the challenged remarks are
reviewed in context. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999). The test
for prosecutorial misconduct is whether defendant was deprived of a fair trial. People v Bahoda,
448 Mich 261, 266-267; 531 NW2d 659 (1995).
The first challenged remarks concern defendant’s ex-girlfriend. It is clear from the record
that the prosecutor’s remarks were made in response to allegations raised during defendant’s
closing argument. People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000). Defense
counsel posed a series of rhetorical questions concerning the taking of the woman’s statement.
The clear implication of these questions was that the police were not really interested in
uncovering the truth, and that they had therefore created a situation in which defendant’s exgirlfriend was pressured to overstate the extent to which defendant allegedly made selfincriminating statements to her. The prosecutor responded that defendant was the person running
from the truth. The prosecutor suggested that the better question for the jury to consider was why
defendant and his brother had tried to get defendant’s ex-girlfriend to lie about the police
threatening to take her children away. We conclude that the prosecutor’s remarks were not
improper because they were made to rebut charges raised by defendant. Id.
Defendant also argues that he was denied a fair trial when the prosecution stated that
while defendant “has no burden of proof” and no duty “to bring in any witnesses,” common sense
dictates that a reasonable person would have produced the two alleged res gestae witnesses, who
were characterized as being “very close” to defendant, if they could “blow” the prosecution’s
case “out of the water.” These remarks were made in response to defense counsel’s questioning
why the two witnesses had not been produced. “Otherwise improper prosecutorial remarks
generally do not require reversal if they are responsive to issues raised by defense counsel.” Id.
Given the context and the fact that the trial court sustained defendant’s objection to these
remarks, we conclude that the defendant was not denied a fair and impartial trial by these
remarks. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
Affirmed.
/s/ Donald S. Owens
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
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