PEOPLE OF MI V CAVANTA D MCLILLY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellant,
v
No. 234577
Genesee Circuit Court
LC Nos. 00-007098-FC
00-007099-FC
00-007100-FC
00-007507-FC
CAVANTA D. MCLILLY, DEONDRICK D.
MCLILLY, LOUIS C. MCLILLY, JR., and
ORRACCIOUS Q. BROWN,
Defendants-Appellees.
Before: Fitzgerald, P.J., and Wilder and Cooper, JJ.
PER CURIAM.
Defendants were each charged with possession of a firearm during the commission of a
felony, MCL 750.227b, carrying a concealed weapon, MCL 750.227, and conspiracy to commit
armed robbery, MCL 750.529; MCL 750.157a. The circuit court granted defendants’ separate
motions to suppress hearsay statements offered to prove the existence of the conspiracy charge
on the ground that the prosecutor failed to prove the existence of a conspiracy by proof
independent of the hearsay statements. This Court granted the prosecutor’s application for leave
to appeal. We reverse and remand.
I. Facts and Procedural History
During the early morning hours of September 11, 2000, Eddie McGhee was the victim of
an armed robbery by two hooded men who took, inter alia, his car and his Nokia 6120 cellular
phone. The phone included a feature that would state the greeting “Hi, Eddie” when turned on.
Later that morning, McGhee’s son called McGhee’s cellular phone. It was answered by an
unidentified man. McGee’s son misled the man to believe that he wanted to purchase narcotics.
Upon learning this information, Bradford Barksdale, Captain of the Flint Police Department’s
Special Operations Bureau, devised a plan under which he would call McGhee’s phone and lead
the unidentified man to believe that the owner of the phone, McGhee, was a drug dealer, and that
Barksdale wanted to purchase controlled substances from McGhee. Barksdale reasoned that,
because the person or persons who had McGhee’s phone were robbers, they would be willing to
rob him if he gave them the impression that he had money. That evening, Barksdale called
McGhee’s number. An unidentified man answered the phone. Barksdale identified himself as
“Ralph,” and asked for Eddie. When the man told him that Eddie was not in, Barksdale told the
man to let Eddie know that he was coming from Detroit to pick up his package, and that he
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would be in Flint in an hour. About an hour later, Barksdale called McGhee’s phone again. He
identified himself as Ralph and he asked for Eddie. The unidentified man identified himself as
Eddie’s nephew, and he said that Eddie was not in. Barksdale explained that he was running late
due to bad weather and heavy traffic from Detroit, but that he would arrive in twenty minutes.
The unidentified man asked Barksdale about the nature of the package. Barksdale said that he
had originally wanted “twenty” but that he only had enough money for “ten,” and accordingly,
only wanted “ten.” Barksdale never mentioned anything about purchasing drugs, but he wanted
the man to believe that he was talking about drugs. The unidentified man promised Barksdale
that the quantity would be available when Barksdale arrived.
Accompanied by several unmarked police units, Barksdale went to the IMA Sports Arena
parking lot in Flint. Barksdale called McGhee’s phone number. He informed the unidentified
man that he was waiting behind the IMA. The man said that he was driving a white Corsica.
Barksdale told the man that he was in a bronze pickup truck.
At this point in the phone conversation, Barksdale believed that the man was going to
continue the conversation, but Barksdale soon realized that the man failed to properly hang up
the phone. Barksdale listened to a conversation that took place between the unidentified man
and two or three other unidentified men. In that overheard conversation, the men laid out their
plan of action to rob Ralph. Barksdale also heard the closing of car doors, the sound of a motor
starting, and the sound of a car radio. He heard the conversation continue in what sounded like a
moving vehicle. He learned that the unidentified man with whom he had just spoken tried to
trick Barksdale into believing that he was arriving in a Corsica, when he was actually driving a
truck.
At a point in the overheard conversation, Barksdale turned off his cellular phone. About
ten to fifteen minutes later, a dark Ford Explorer sports utility vehicle arrived from the Lapeer
Road entrance of the parking lot, located south of where Barksdale was parked. The Explorer
immediately turned left and drove to the west side of the parking lot behind the IMA building.
For a couple of minutes, the Explorer circled the parking lot areas south and then north of where
Barksdale was parked, moving fairly slowly. Barksdale radioed the marked police units and
ordered them to block all parking lot entrances. The Explorer then slowly drove toward the
Lapeer Road entrance it had entered. However, when the Explorer came face to face with one of
the marked police units that was blocking that entrance, it turned and drove west toward the IMA
building and stopped about fifty yards from its entrance. Barksdale saw the front passenger door
open. He saw a man lean out of the Explorer and reach to the ground. Four men disembarked
from the Explorer and walked toward the entrance of the IMA where they were apprehended by
police officers. Barksdale walked to the Explorer, which was parked outside of the marked
parking spaces in the lot with its headlights lights on, the driver’s window down, and the driver’s
door open. He found on the ground, within two feet of the front passenger door, two loaded
Smith and Wesson handguns. Barksdale then walked down the path that the Explorer had
driven. About twenty-five yards from the rear of the Explorer and on the driver’s side, he found
a Nokia cellular phone and, a couple of feet away, a battery. Barksdale determined that the
battery fit the cellular phone. He attached the battery to the phone. The phone came up with the
greeting “Hi, Eddie.” Barksdale called McGhee’s phone number. The phone rang and displayed
a city of Flint trunk line on it. The Explorer was also searched. Behind the backseat was a paper
bag with the top of the bag rolled down, containing two knit ski masks with holes cut out that
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appeared to be eye holes. One of the ski masks was black and one was dark blue. Beside the
bag were two other ski masks, one green and the other blue. No illegal substances were found in
the Explorer.
The trial court suppressed evidence of the McGhee armed robbery on the ground that the
prosecutor failed to establish its relevancy to the conspiracy charge. The trial court ruled that the
independent evidence in the case merely established defendants’ presence, and no more. The
trial court suppressed the overheard statements on the ground that the existence of the conspiracy
was not proved by a preponderance of the evidence.
II. Analysis
On appeal, the prosecutor argues that the trial court improperly suppressed the statements
as inadmissible hearsay that was not admissible absent independent evidence of the conspiracy.
We conclude that the trial court abused its discretion because the independent evidence in this
case was sufficient to show the existence of a conspiracy by a preponderance of the evidence,
and, accordingly, the overheard statements were not hearsay and were admissible because they
were made in the course and in furtherance of the conspiracy.
The decision whether to admit evidence will not be reversed on appeal absent an abuse of
discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Factual findings
made in conjunction with a motion to suppress are reviewed for clear error. People v Kaslowski,
239 Mich App 320, 323; 608 NW2d 539 (2000). However, where the decision regarding the
admissibility of evidence involves a preliminary question of law, that question is reviewed de
novo on appeal. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
According to MRE 801(d)(2)(E), the overheard statements at issue are not hearsay “if the
statement is offered against a party and is . . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy on independent proof of the conspiracy.” (Emphasis
added.) It is well settled in Michigan that, in order for a statement to qualify as a coconspirator
statement under MRE 801(d)(2)(E), three requirements must be met. First, there must be
independent proof by a preponderance of the evidence that a conspiracy in fact occurred. People
v Vega, 413 Mich 773, 780-782; 321 NW2d 675 (1982). Proof by a preponderance of the
evidence requires that the factfinder believe that the evidence supporting the existence of the
contested fact outweighs the evidence supporting its nonexistence. Blue Cross & Blue Shield v
Milliken, 422 Mich 1, 89; 367 NW2d 1 (1985). Second, the statement must be made during the
course of a conspiracy. People v Bushard, 444 Mich 384, 394; 508 NW2d 745 (1993). Finally,
the statement must be made in furtherance of a conspiracy. Id. at 395.
Establishing that the individuals specifically intended to combine to pursue the criminal
objective of their agreement is critical because the gist of the offense of conspiracy lies in the
unlawful agreement. People v Justice, 454 Mich 334, 345; 562 NW2d 652 (1997). Identifying
the objectives and even the participants of an unlawful agreement is often difficult because of the
clandestine nature of criminal conspiracies. Id. at 347. Thus, proof may be derived from the
circumstances, acts, and conduct of the parties. Id.
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Before resolving the element at issue – that is, whether there was independent proof by a
preponderance of the evidence that a conspiracy in fact occurred, the question regarding the
admissibility of evidence of the underlying McGhee armed robbery must first be addressed.
In general, other acts evidence may not be used to establish a defendant’s character to
show his or her propensity to commit the charged offense. People v Crawford, 458 Mich 376,
385; 582 NW2d 785 (1998). However, logical relevance is the touchstone of the admissibility of
uncharged misconduct evidence. People v VanderVliet, 444 Mich 52, 61; 508 NW2d 114
(1993), amended 445 Mich 1205 (1994). In VanderVliet, our Supreme Court clarified the
standard for admission of prior bad acts evidence. First, the evidence must be relevant to an
issue other than propensity under MRE 404(b). Id. at 74. Second, the evidence must be relevant
under MRE 402, as enforced through MRE 104(b), to an issue or fact of consequence at trial,
i.e., mens rea. Id. at 74, 86. Third, the trial court must employ the balancing process under
MRE 403 to determine whether the danger of undue prejudice substantially outweighs the
probative value of the evidence in view of the availability of other means of proof and other facts
appropriate for making decisions of this kind under MRE 403. Id. at 74-75. Finally, the trial
court, upon request, may provide a limiting instruction under MRE 105. Id. at 75.
Michigan Rule of Evidence 404(b) permits the judge to admit other acts evidence
whenever it is relevant on a noncharacter theory. VanderVliet, supra at 62-63, 65. Admission of
evidence of bad acts is governed by MRE 404(b), which provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
When other acts are offered to show intent, logical relevance dictates only that the
charged crime and the proffered other acts “are of the same general category.” VanderVliet,
supra at 79-80. Here, a review of the record shows that evidence of the McGhee armed robbery
was relevant and offered for proper purposes to show motive, opportunity, and identity.
Specifically, the record shows that the evidence was offered to explain the reason why
Barksdale, accompanied by several marked and unmarked police units, was at the IMA parking
lot. Without this evidence, the fact finder would be left with a chronological and conceptual void
in the sequence of the factual events. VanderVliet, supra at 81. The evidence showed motive
and opportunity because Barksdale expressly testified that he led the unidentified man who
answered the stolen cellular phone to believe that Barksdale was carrying $9,000 cash. The
evidence was also offered to show the identity of the person or persons involved in the McGhee
armed robbery. Identity is always an essential element of a criminal prosecution. People v
Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976).
Moreover, the evidence showed preparation, scheme, and plan. Evidence of similar
misconduct is logically relevant to show that the charged act occurred where the uncharged
misconduct and the charged offense are sufficiently similar to support an inference that they are
manifestations of a common plan, scheme, or system. People v Sabin (After Remand), 463 Mich
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43, 63; 614 NW2d 888 (2000). Unlike evidence of uncharged acts used to prove identity, the
plan need not be unusual or distinctive; it need only exist to support the inference that the
defendant employed that plan in committing the charged offense. Id. at 66. Here, other evidence
offered at the preliminary examination suggested a high degree of similarity between the
uncharged McGhee armed robbery and the charged conspiracy. The evidence showed
preparation, scheme and plan in conducting the crime. The McGhee robbery, in which
McGhee’s cellular phone was stolen, involved the use of weapons and hoods. Here, McGhee’s
phone was recovered, and weapons and hoods were found near or in the vehicle that defendants
were driving. In light of the above, evidence of the McGhee armed robbery satisfied the first
two VanderVliet prongs.
Because the McGhee armed robbery evidence was relevant and offered for proper
purposes under MRE 404(b), its probative value was not outweighed by its highly prejudicial
nature. “Prejudice inures when marginally probative evidence would be given undue or
preemptive weight by the jury.” People v Rice (On Remand), 235 Mich App 429, 441; 597
NW2d 843 (1999). From the above analysis, it cannot be said that the proffered evidence was
only marginally probative. Thus, evidence of the McGhee armed robbery was admissible.
Accordingly, the trial court abused its discretion in suppressing it.
The question remains whether the trial court erred by concluding that the prosecutor
failed to present independent proof by a preponderance of the evidence that a conspiracy in fact
occurred. The testimony independent of the statements established that Barksdale communicated
his desire to purchase drugs to an unidentified person who answered the cellular phone that had
been stolen during an armed robbery by two men who wore hoods with eyeholes. Defendants
arrived at the agreed-upon location and were armed, were in possession of four ski masks with
eyeholes, and were driving suspiciously throughout the parking lot. Additionally, defendants
abruptly turned away from marked police units at the parking lot entrance and left their vehicle
with its headlights on and the driver’s door open. The stolen cellular phone was found only
twenty-five feet away in the path that the vehicle had driven, and no drugs were found to
consummate a drug sale. Circumstantial evidence is oftentimes stronger and more satisfactory
than direct evidence. People v Wolfe, 440 Mich 508, 526; 489 NW2d 748, amended on other
grounds 441 Mich 1201 (1992). The only evidence supporting the non-existence of the
conspiracy may be the fact that the perpetrators of the McGhee armed robbery and the declarants
of the phone and overheard statements, were unidentified, and that no drugs were found on
defendants or in their vehicle. The above evidence supporting the existence of the conspiracy
outweighs the evidence offered supporting its nonexistence, thus satisfying a preponderance of
the evidence standard. Blue Cross, supra at 89. Therefore, the independent proof was sufficient
to prove by a preponderance of the evidence that a conspiracy existed, and a jury could
reasonably infer that all four defendants conspired to commit an armed robbery. Accordingly,
we conclude that the trial court abused its discretion by ruling that the coconspirators’ statements
were not admissible under MRE 801(d)(2)(E) on the ground that independent proof of the
conspiracy was not established.1
1
The trial court did not address whether the second and third prongs necessary for a statement to
be qualified as a coconspirator statement were met, and no argument in this regard is raised on
appeal. We note, however, that these prongs were established by a preponderance of the
(continued…)
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Reversed and remanded. Jurisdiction is not retained.
/s/ E. Thomas Fitzgerald
/s/ Jessica R. Cooper
(…continued)
evidence.
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