PEOPLE OF MI V GREGORY ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 18, 2004
Plaintiff-Appellee,
V
No. 246187
Wayne Circuit Court
LC No. 98-008045-01
GREGORY ANDERSON,
Defendant-Appellant.
Before: Saad, P.J., and Sawyer and Fort Hood, JJ.
PER CURIAM.
After a bench trial, the trial court convicted defendant of assault with intent to do great
bodily harm less than murder, MCL 750.84, and possession of a firearm during the commission
of a felony, MCL 750.227b. The trial court sentenced defendant to four to ten years’
imprisonment for the assault conviction, and two years for the felony-firearm conviction, the two
sentences to run consecutively. Defendant appeals his convictions and sentences, and we affirm.
I
Defendant contends that the trial court’s findings do not support the element of specific
intent, and also maintains that the trial court acknowledged this deficiency in a statement made
while issuing the verdict. This Court reviews the trial court's factual findings for clear error.
MCR 2.613(C); People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000). “Factual
findings are sufficient as long as it appears that the trial court was aware of the issues in the case
and correctly applied the law.” People v Legg, 197 Mich App 131, 132; 494 NW2d 797 (1992)
(citing People v Armstrong, 175 Mich App 181, 185; 437 NW2d 343 (1989)).
Defendant’s argument on this issue depends entirely on his interpretation of one
statement made by the trial court in its findings of fact and conclusions of law. After reviewing
the evidence that had been presented and declaring its findings of fact, the trial court stated: “I
agree that there is no specific intent in this record. And so, I’m going to find the Defendant
guilty of the felony[-]firearm and assault with intent to do great bodily harm less than murder.”
Defendant interprets this statement as a declaration that the trial court found no specific intent
whatsoever, and specific intent is a necessary element of assault with intent to do great bodily
harm less than murder. People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997). We
reject this interpretation, and find that, viewed in its proper context, the trial court’s statement
meant that the trial court did not find specific intent to murder, a required element of the charge
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of assault with intent to murder, but did find specific intent to commit great bodily harm. “The
sufficiency of factual findings cannot be judged on their face alone; the findings must be
reviewed in the context of the specific legal and factual issues raised by the parties and the
evidence.” People v Rushlow, 179 Mich App 172, 177; 445 NW2d 222 (1989), aff'd 437 Mich
149; 468 NW2d 487 (1991).
Prior to making the challenged statement, the trial court said that it believed the victim’s
testimony, as well as the testimony of other witnesses that put defendant at the scene of the
shooting. Because the trial court believed this testimony, it properly found that defendant used a
gun to inflict serious injuries on the victim, and this clearly is evidence sufficient to support a
finding of intent to do great bodily harm. Furthermore the trial court’s findings of fact supported
its verdict. We need not remand in cases where, as here, it is “manifest that [the trial court] was
aware of the factual issue, that it resolved it and it would not facilitate appellate review to require
further explication of the path [the court] followed in reaching the result.” People v Jackson, 390
Mich 621, 627 n 3; 212 NW2d 918 (1973). Accordingly, we hold that the trial court’s findings
of fact were sufficient to support its verdict.
II
Also, defendant says that the prosecutor improperly provided his personal recollection of
facts during his cross-examination of a witness. Defendant contends that because he could not
cross-examine the prosecutor, he was denied his right of confrontation. Defendant did not
preserve this issue by making a timely, contemporaneous objection and request a curative
instruction. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). Therefore, we
review for a plain error that affected defendant’s substantial rights.1
Defendant’s allegations of misconduct center on two exchanges between the prosecutor
and a defense witness while the latter testified at trial. In both, the prosecutor asked the witness
if she had previously made a statement to him. In the first exchange, the prosecutor asked the
witness if she had ever told defendant that victim had been “talking bad” about him. The second
exchange occurred later in the same witness’ testimony. The prosecutor had asked her if another
witness had tried to calm defendant down after an argument with victim prior to the shooting.
After the witness seemed to deny that the other witness had even spoken to defendant, the
prosecutor asked her whether she had previously told him that the other witness had, in fact, tried
to calm defendant. The witness replied that the other witness had told defendant not to “mind”
the victim, but then stated that this was not an attempt to calm the victim.
Defendant argues that through these exchanges, the prosecutor was unlawfully assuming
the role of a witness not subject to cross-examination. MRE 607 provides: “The credibility of a
1
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must
have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings. It is the defendant rather than the
government who bears the burden of persuasion with respect to prejudice. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999).
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witness may be attacked by any party, including the party calling the witness.” MRE 613 allows
impeachment of a witness with that witness’s prior inconsistent statements. People v Rodriguez,
251 Mich App 10, 34-35; 650 NW2d 96 (2002). Before using a prior inconsistent statement to
impeach a witness or refresh the witness’s memory, one must lay a proper foundation regarding
when, where, and to whom the statement was made. Id. Neither MRE 607, MRE 613, nor the
cases interpreting these rules state that the prior inconsistent statement cannot have been made to
the prosecution. The prosecutor’s statement in the first exchange was not improper testimony on
his part, but was part of the foundational information required to introduce the statement.
Rodriguez, supra at 34-35. Because the prosecutor may impeach a witness with a witness’ prior
inconsistent statements, we hold that it was not plain error for the prosecution to do so here.
In the second exchange, the witness does not clearly deny making the prior statement to
the prosecutor. In fact, her final statements can reasonably be interpreted as an admission that
she made the prior statement but disagreed with the prosecution’s interpretation of what the other
witness was trying to do in speaking to defendant. Where a witness does “not deny [making] the
statements in question, the prosecutor's questioning function[s] more like ‘refreshment’ than
‘impeachment,’ and . . . [u]nder th[o]se circumstances, we find no error requiring reversal.”
Rodriguez, supra at 35. Because the prosecutor here was merely refreshing the witness’
recollection, and he was not testifying, his questions in the second exchange were not plain error.
III
Defendant further maintains that the trial court committed error requiring reversal when it
allowed the victim to testify that defendant had raped her friend. Defendant asserts two claims
of error with regard to this testimony: first, that it is hearsay, and second, that it is inadmissible
evidence of criminal propensity. We review a trial court’s decision to admit or exclude evidence
for an abuse of discretion. People v Herndon, 246 Mich App 371, 406; 633 NW2d 376 (2001).
An abuse of discretion occurs when the result is so palpably and grossly violative of fact and
logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment
but the defiance of it. A trial court's decision on a close evidentiary question ordinarily cannot
be an abuse of discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). However,
defendant’s argument that the testimony is inadmissible propensity evidence, here raised for the
first time, is not preserved, People v Avant, 235 Mich App 499, 512; 597 NW2d 864 (1999), and
consequently, this Court’s review is for a plain error that affected defendant’s substantial rights.2
The victim testified that some time prior to the shooting, she said, within defendant’s
hearing, that defendant had raped her friend. Victim made this statement as she was getting back
into a car after a verbal confrontation with defendant. Later, at another location, defendant shot
the victim. After the victim verified that she had indeed said this, defense counsel merely said:
“Excuse me. Excuse me.” The trial court then stated: “Sustained. The Court will disregard it.”
At a later point in victim’s testimony, the prosecutor again brought up victim’s statement about
the rape, and asked her again what she had said, whereupon defense counsel objected on the
grounds of hearsay; the trial court overruled defendant’s objection.
2
Carines, supra at 763-764.
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“Hearsay is defined as ‘a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Hearsay is
not admissible except as provided by the rules of evidence.” People v McLaughlin, 258 Mich
App 635, 651; 672 NW2d 860 (2003) (internal citations omitted); MRE 801(c). The prosecutor
argued at trial that the statement was not hearsay because it was not offered for the truth of the
matter asserted. The prosecutor’s theory of the case was that defendant, angered by things the
victim had said about him, “lashed out” at her. Under this theory, it would be important to show
that defendant was aware that the victim had made statements that would have angered
defendant. The prosecution presented evidence that the victim had said uncomplimentary things
to another witness about defendant, but that witness denied relaying this information to
defendant. It was therefore important to adduce any evidence available that victim had made
statements in defendant’s presence that would have given him a motive to assault her.
Moreover, the defense presented evidence that defendant was not upset after the argument with
victim. It was therefore important to present rebuttal evidence that victim had said things to him
inflammatory enough to upset a normal person.
Given the evidence presented, it would not be unreasonable to believe that defendant
heard the victim’s statement about the rape; his violent reaction immediately after she made it is
further evidence that he heard and was angered by it. Accordingly, we find that the trial court’s
decision to admit the statement is not “so palpably and grossly violative of fact and logic that it
evidences not the exercise of will but perversity of will, not the exercise of judgment but the
defiance of it,” Hine, supra at 250, and hold that the trial court’s decision to admit the evidence
was not an abuse of discretion.
Defendant also argues that the statement regarding the rape was “improper evidence of
‘criminal propensity.’” The admissibility of evidence relating to a defendant's other crimes,
wrongs, or acts is governed by MRE 404(b). Evidence is admissible under this rule if it: (1) is
offered for a proper purpose, i.e., one other than to prove the defendant's character or propensity
to commit the crime, (2) is relevant to an issue or fact of consequence at trial, and (3) is
sufficiently probative to outweigh the danger of unfair prejudice, under MRE 403. People v
Starr, 457 Mich 490, 496-497; 577 NW2d 673 (1998). MRE 404(b) provides a list of “other
purposes,” for which other acts evidence might be admissible, including “proof of motive . . . . ”
Relevant evidence is evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. MRE 401; People v Martzke (On Remand), 251 Mich App 282, 293; 651
NW2d 490 (2002). “Although relevant, evidence may be excluded 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.” MRE 403; Martzke, supra at 294.
The victim’s testimony that she had said, within defendant’s hearing, that he raped one of
her friends, is relevant. Defendant’s subsequent attempt to strike victim immediately after she
made the statement tends to show that he was angered by it, and makes it more likely that
defendant had a motive for his subsequent attack on her. The trial court stated that motive was
of consequence here. We agree with the trial court, and consequently hold that the admission of
this evidence was not a plain error affecting defendant’s substantial rights.
IV
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Defendant asserts that he was denied a fair trial by the prosecution’s introduction of
testimony that the victim, after being shot, suffered a miscarriage. The victim testified that she
suffered a miscarriage as the result of the bullet traveling to her uterus after defendant shot her in
the buttocks. Defendant says that this evidence had no probative value, was highly prejudicial,
and was only presented to gain sympathy for the victim, an improper motive. Because defendant
has not previously raised this issue, he has failed to preserve it, Avant, supra at 512. Therefore,
we will review for a plain error that affected defendant’s substantial rights.3
Our Supreme Court, in Mills, supra at 71, held that where the defendant’s intent is an
element of the charged offense, and where intent is at issue, “evidence of injury is admissible to
show intent to kill.” Furthermore, the severity of a victim’s injuries is of consequence to the
determination of whether the defendants' acts were intentional. Id. at 71. Defendant’s intent was
at issue because he made a general denial, thereby placing all elements of the charged offense at
issue. Starr, supra at 501. Here, defendant’s intent was one of the elements that the prosecutor
had to prove in the case at bar. People v Lugo, 214 Mich App 699, 710; 542 NW2d 921 (1995).
Thus, we hold that evidence of the full extent of the victim’s injuries was properly admitted as
material to proving defendant’s intent to murder, the offense with which the prosecution charged
defendant.
V
Further, defendant alleges that the verdict was against the great weight of evidence, and
was based on the trial court’s clearly erroneous findings of fact. A verdict is against the great
weight of the evidence if the evidence preponderates so heavily against the verdict such that it
would be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625,
627; 576 NW2d 129 (1998). “A trial court’s finding is clearly erroneous if it leaves this Court
with a definite and firm conviction that a mistake has been made.” People v Williams, 244 Mich
App 533, 537; 624 NW2d 575 (2001); MCR 2.613(C).
Defendant’s argument is, essentially, that the testimony of two important witnesses was
severely impeached and contradicted physical laws. When we review a trial court’s denial of a
motion for new trial on the basis that the verdict was against the great weight of the evidence, we
defer to the trier of fact’s determination regarding witness credibility unless witnesses have been
impeached to the extent that their testimony has no probative value, or where the testimony
defies indisputable physical facts or realities. People v Musser, 259 Mich App 215, 219; 673
NW2d 800 (2003), citing Lemmon, supra at 647. Furthermore, “[i]n general, conflicting
testimony or a question as to the credibility of a witness are not sufficient grounds for granting a
new trial.” Lemmon, supra at 625 (internal citations omitted). Our review of the record leads us
to the conclusion that the testimony supporting the trial court’s verdict was not “so far
impeached that it was deprived of all probative value or that the jury could not believe it, or
3
Carines, supra at 763-764.
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contradicted indisputable physical facts or defied physical realities.” Musser, supra at 219.
Consequently, we hold that a new trial is not warranted. Id.4
VI
Defendant argues that he was denied a fair trial when the prosecutor impeached a nonalibi witness with questions about why she did not come forward to the police prior to trial with
information tending to help defendant. Defendant did not object at trial to the prosecution’s
questioning of the witness, and so this issue is not preserved. People v Grant, 445 Mich 535,
546; 520 NW2d 123 (1994). Therefore, this Court’s review is for a plain error that affected
defendant’s substantial rights.5
The witness in question was a non-alibi witness. Defendant maintains that the trial court
erred in allowing the prosecution to cross-examine a non-alibi defense witness regarding why the
witness did not come forward to police without first requiring the prosecution to lay a foundation
showing that the witness would naturally have come forward to police with the information. The
trial court relied upon our Supreme Court’s opinion in People v Gray, 466 Mich 44, 46-47; 642
NW2d 660 (2002) (adopting the reasoning of People v Phillips, 217 Mich App 489, 552 NW2d
487 (1996)) in making its decision. Our Supreme Court, in Gray, expressly overruled this
Court’s opinion in People v Fuqua, 146 Mich App 250, 256; 379 NW2d 442 (1985), in which
this Court held that before the prosecutor is allowed to impeach an alibi witness for failure to
come forward and tell his story to the police before trial, there must be some showing, on the
record, regarding why it would have been natural for the alibi witness to relate his story to the
police. Another case, People v Emery, 150 Mich App 657, 666; 389 NW2d 472 (1986), had
applied Fuqua’s foundational requirement to non-alibi witnesses. Defendant further cited
People v Grisham, 125 Mich App 280; 335 NW2d 680 (1983) , and People v Perkins, 141 Mich
App 186; 366 NW2d 94 (1985), for the proposition that the prosecution may not cross-examine
non-alibi witnesses regarding their failure to come forward to police without having laid the
appropriate foundation. Accordingly, defendant argues, we are bound by this Court’s opinions in
Emery, Grisham, and Perkins. However, while an opinion issued by a panel of this Court on or
after November 1, 1990, is binding on future panels, MCR 7.215(J)(1), opinions issued prior to
that date are not binding. People v Antkoviak, 242 Mich App 424, 479 n 25; 619 NW2d 18
(2000). Because this Court’s opinion in Emery relied upon its opinion in Fuqua, a case expressly
overruled by our Supreme Court, we decline to follow Emery, Perkins, and Grisham, and agree
with the trial court the Gray applies to non-alibi witnesses as well as alibi witnesses. Therefore,
we hold that the trial court’s decision to allow the prosecution to cross-examine the defense
4
Defendant also claims that the trial court’s factual findings were clearly erroneous. “A finding
is clearly erroneous if, after a review of the entire record, the appellate court is left with a definite
and firm conviction that a mistake has been made.” People v Gistover, 189 Mich App 44, 46;
472 NW2d 27 (1991). However, defendant does not indicate which factual findings were clearly
erroneous, and, after our review of the record, we are not left with the firm conviction that a
mistake has been made.
5
Carines, supra at 763-764.
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witness regarding the witness’s failure to come forward to police was not a plain error requiring
reversal.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Karen M. Fort Hood
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