PEOPLE OF MI V ARTURO JUAN WHITE
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0STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2004
Plaintiff-Appellee,
v
No. 249210
Wayne Circuit Court
LC No. 02-005241-01
ARTURO JUAN WHITE,
Defendant-Appellant.
Before: Zahra, P.J., and White and Talbot, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of three counts of first-degree
premeditated murder, MCL 750.316(1)(a), three counts of first-degree felony murder, MCL
750.316(1)(b), felon in possession of a firearm, MCL 750.224f, and possession of a firearm
during the commission of a felony, MCL 750.227b, arising from the shooting deaths of three
victims. He was sentenced to concurrent terms of life imprisonment for each of the six murder
convictions, and thirty-eight months to five years’ imprisonment for the felon-in-possession
conviction, and to a consecutive two-year term for the felony-firearm conviction. He appeals as
of right. We affirm defendant’s convictions, but remand for modification of the judgment of
sentence.
The prosecutor introduced testimony at trial that had been previously given by a witness
at a proceeding pursuant to an investigative subpoena. The witness had testified at the subpoena
proceeding that he saw defendant, carrying an AK-47, enter the victims’ house shortly before the
killings. The witness had also testified that defendant came to his house later, still carrying a
weapon, and threatened that he would kill the witness unless he drove defendant to the hospital.
At trial, the witness admitted that he made the statements under oath, but denied that they were
true.
Evidence was also introduced of the witness’ oral and written statements to police,
indicating that defendant told the witness he was going to rob someone, that the witness saw
defendant enter the victims’ house with an AK-47, and that defendant later told him that he had
been shot, and that “some people tried to rob him, but he killed them.” The witness testified at
trial that he understood when he gave his statements that he had the right to remain silent and the
right to have an attorney present. The witness acknowledged that he told the police that
defendant threatened to kill him and his mother if he told the police what happened, and that
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defendant told the witness that he would be watched to be sure he did not “snitch.1” The witness
testified at trial that none of the things he told the police were true.
Girlfriends of one of the victims testified that the victims were planning to engage in a
drug transaction with “friends from around the block to make some extra money.”
According to the caller ID in the victims’ home, the last call made from the home was to
defendant’s telephone number. No guns or drugs were found in the house. There was evidence
that more than one type of weapon had been fired, a trail of blood leading away from two of the
victims and bloodstains outside on the driveway, but no blood analysis or gunshot residue tests
were conducted by the police.
Defendant also gave the police a statement, in which he admitted that he was in the house
at the time of the killings, where he took cocaine and “cooked it up,” but claimed that he had also
been a victim of the crime by two unknown men. Defendant suffered from six gunshot wounds
and said that he pretended to be dead until the assailants left, and then went to the hospital.
Defendant told the police that he did not check on the other victims or call 911 because he did
not want to be involved.
On appeal, defendant argues that the subpoenaed testimony of the witness should have
been suppressed because it was coerced and obtained in violation of the witness’ right to counsel,
and also because the prosecutor failed to comply with statutory procedures governing
investigative subpoenas, see MCL 767A.1 et seq. We disagree.
Questions of statutory interpretation are reviewed de novo, In re Request for Investigative
Subpoena, 256 Mich App 39, 44; 662 NW2d 69 (2003), as are constitutional issues, In re
Investigative Subpoena re: Homicide of Lance C. Morton, 258 Mich App 507, 509; 671 NW2d
570 (2003).
In response to defendant’s challenges, the trial court concluded that, even assuming
arguendo that defendant had standing to raise an issue involving the witness’ rights, there was no
evidence in this case of procedural defects. We agree and need not address the question of
standing here, because defendant fails to identify a valid challenge to the witness’ testimony. As
the trial court stated, in light of the allegations in the petition for the investigative subpoena (i.e.,
that the perpetrators were still at large and the prosecutor feared witness tampering), there was
good cause to waive the statutory seven-day notice requirement. MCL 767A.4(2).
Further, we find no basis in the record for defendant’s claim that the witness’
investigative subpoena testimony was coerced and involuntary, and obtained in violation of the
witness’ right to counsel. Indeed, the witness testified at trial that, at the subpoena proceeding,
he was advised of his statutory rights, including the right to have an attorney present, and told
that he could refuse to answer any question that he thought might incriminate him. The witness
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The witness was required to appear at defendant’s preliminary examination, where he testified
that his statements implicating defendant were all lies. The witness’ home burned down soon
afterwards.
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testified at trial that a court reporter was present to transcribe his subpoenaed testimony. After
the witness made his subpoenaed statement, while the reporter was still present, the witness was
given an opportunity to change the statement and, he testified at trial, he chose not to do so. At
trial, the witness admitted that he made the statement that was transcribed, but testified that the
statement was not true. The trial court did not err in denying defendant’s request to suppress the
witness’ investigative subpoena testimony.
Defendant concedes that out of court statements are admissible under MRE 801(d)(1)(A)
when they are given under oath, in a trial, hearing or other proceeding, and are inconsistent with
the witness’ trial testimony. Defendant argues, however, that the trial court abused its discretion
when it admitted the witness’ investigative subpoena testimony as substantive evidence in this
case. A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.
Waknin v Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002). Preliminary issues of
admissibility are reviewed de novo, but it is an abuse of discretion to admit evidence that is
inadmissible as a matter of law. Id.
MRE 801(d)(1) provides that a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the
declarant’s testimony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition . . . .
Defendant does not dispute that the witness’ investigative subpoena testimony was inconsistent
with his trial testimony, or that it was given under oath subject to the penalty of perjury. Rather,
he argues that being called to testify pursuant to an investigative subpoena is a police
investigation, not a judicial proceeding and, therefore, such testimony is not given at “a trial,
hearing, or other proceeding” for purposes of this rule. We disagree.
In People v Chavies, 234 Mich App 274, 281-284; 593 NW2d 655 (1999), this Court held
that grand jury testimony is admissible at a defendant’s trial under MRE 801(d)(1)(A). In the
present case, while the witness’ investigative subpoena testimony was given in an investigative
context, the prosecutor’s inquiry was more akin to a grand jury proceeding than an interview by
law enforcement officers. As noted, the witness was advised that he could have an attorney, he
testified under oath and his testimony was recorded.
Defendant cites United States v Livingston, 213 US App DC 18; 661 F2d 239, 240-243
(1981), in support of his argument that the witness’ investigative subpoena testimony was not
admissible under MRE 801(d)(1)(A). Although not binding on this Court, we find the analysis
in the federal case useful. We conclude, however, that Livingston actually supports the
admissibility of the testimony under this rule. In analyzing the federal counterpart to Michigan’s
rule, FRE 801(d)(1)(A), the court in Livingston held that a statement given to a postal inspector
at the witness’ residence, which the witness then signed swearing to its accuracy, did not “satisfy
the rule's requirement of ‘a trial, hearing, or other proceeding.’” Livingston, supra at 242. The
Court found that the crucial distinction between the interview conducted by the inspector and the
“proceeding” referenced by the court rule is whether an “official verbatim record” is made so
that there is “overwhelming proof that the witness did in fact make the prior inconsistent
statement.” Id.
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Here, the investigative subpoena procedure was “investigatory, ex parte, inquisitive,
sworn, basically prosecutorial, held before an officer other than the arresting officer, recorded,
and held in circumstances of some legal formality.” See Livingston, supra, 661 F2d at 243. The
statement was made under oath and was transcribed by a court reporter. Moreover, there was
“overwhelming proof that the witness did in fact make the prior inconsistent statement,” because
the witness here testified at trial that he had, in fact, made the statement. Thus, the decision in
Livingston supports our conclusion that the witness’ testimony here qualifies for admission under
MRE 801(d)(1)(A).
Defendant’s reliance on United States v Lloyd, 10 F3d 1197, 1216 (CA 6, 1993), is also
misplaced. The court in Lloyd merely stated that statements given to an investigating officer do
not fall within the purview of the rule allowing the admission of statements given under oath at a
trial, hearing, or other proceeding. The decision does not support defendant’s position that the
investigative subpoena testimony at issue here is not admissible. We therefore conclude that the
witness’ prior investigative subpoena testimony, which was inconsistent with his trial testimony,
was admissible as substantive evidence at defendant’s trial.
Finally, defendant argues that alleged procedural defects in obtaining an investigative
subpoena may be considered in determining the admissibility of investigative subpoena
testimony at a future trial under MRE 801(d)(1)(A). As noted previously, even assuming that
defendant has standing to raise this issue, we find no evidence from the witness’ description of
the proceeding that there were any procedural defects.
Defendant also argues that he was denied a fair trial because of prosecutorial misconduct.
We disagree. Claims of prosecutorial misconduct are reviewed on a case-by-case basis, and the
challenged remarks are examined in context. People v Noble, 238 Mich App 647, 660; 608
NW2d 123 (1999). The test for prosecutorial misconduct is whether the defendant was deprived
of a fair trial. People v Bahoda, 448 Mich 261, 266-267 and nn 5-7; 531 NW2d 659 (1995).
However, where a defendant fails to object to alleged misconduct, appellate review is precluded
unless a curative instruction could not have eliminated possible prejudice or failure to consider
the issue would result in a miscarriage of justice. Noble, supra at 660. Unpreserved claims of
prosecutorial misconduct are reviewed for plain error affecting the defendant’s substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
Defendant first argues that the prosecutor improperly appealed to the jury’s sympathy and
emotions. Although defendant correctly observes that such appeals are improper, People v
Watson, 245 Mich App 572, 591-592; 629 NW2d 411 (2001), he has not demonstrated that
reversal is warranted on this basis. The challenged remarks were brief, and the trial court
sustained defense objections on this basis when counsel choose to raise them. Further, the court
instructed the jury not to allow sympathy or prejudice to influence its decision, not to consider
the statements of counsel, to base its decision only on properly admitted evidence, and to set
aside all biases and prejudices. Under these circumstances, the prosecutor’s remarks did not
deprive defendant of a fair trial.
Regarding the prosecutor’s elicitation of a witness’ prior statements, we have already
held that the witness’ prior investigative subpoena testimony was properly admitted as
substantive evidence. Additionally, the trial court made clear that the witness’ prior statements
to the police were admissible only for purposes of impeachment, and could not be considered as
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substantive evidence. Jurors are presumed to follow the court’s instructions. People v
McAlister, 203 Mich App 495, 504; 513 NW2d 431 (1994). Thus, the prosecutor’s conduct in
eliciting the foregoing testimony, acknowledged by plaintiff as clumsy, did not amount to
misconduct that deprived defendant of a fair trial, or constitute plain error resulting in prejudice.
“A finding of prosecutorial misconduct may not be based on a prosecutor’s good-faith effort to
admit evidence.” People v Abraham, 256 Mich App 265, 278; 662 NW2d 836 (2003).
We also reject defendant’s argument that reversal is required because the prosecutor
injected unfounded and prejudicial speculation. As defendant argues, a prosecutor may not
inject unfounded prejudicial innuendo into the proceedings. People v Burrell, 127 Mich App
721, 726; 339 NW2d 239 (1983). In this case, defendant challenges the prosecutor’s attempts to
question a police witness about how narcotics transactions usually take place, and whether there
was any evidence that defendant had been using drugs with the victims before they were shot.
The trial court also sustained defense objections to the prosecutor’s questions concerning a
perpetrator’s motives for taking weapons from a crime scene. The prosecutor’s questioning did
not approach a level of prejudicial innuendo found to require reversal. Compare People v
Whalen, 390 Mich 672, 683; 213 NW2d 116 (1973); Burrell, supra.
Defendant argues that hearsay statements were improperly admitted as substantive
evidence. We disagree. The statements made during an investigative subpoena hearing were
admissible under MRE 801(d)(1)(A), which provides for the admission of a prior inconsistent
statement when the witness testifies at trial and is subject to cross-examination, and the prior
statement “was given under oath subject to the penalty of perjury at a trial, hearing or other
proceeding.” As noted previously, at trial, the witness admitted making the subpoenaed
statement, but denied that it was true. The witness’ other statements to the police were
introduced as impeachment evidence, and the jury was properly instructed that they were to be
considered only for impeachment, not for their truth, and were not to be considered in
determining defendant’s guilt or innocence. “A previous inconsistent statement of a witness,
admissible to impeach credibility, is not regarded as an exception to the hearsay rule because it is
not offered as substantive evidence to prove the truth of the statement, but only to prove that the
witness in fact made the statement.” Merrow v Bofferding, 458 Mich 617, 631; 581 NW2d 696
(1998); see also People v Stanaway, 446 Mich 643, 692-693; 521 NW2d 557 (1994).
We agree, however, that a statement made by one of the victims to his girlfriend,
indicating that he intended to engage in a drug transaction with persons who lived around the
corner, and a similar statement made to his other girlfriend, were not admissible as a present
sense impression under MRE 803(1), because they were not made while the victim was
perceiving an event or condition at the time he spoke. However, in light of defendant’s
statement to the police that he was at the house using drugs at the time of the crime, it is not
more probable than not that the victim’s statements were outcome determinative, and any error
in their admission is harmless on this record. People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).
Finally, we agree that defendant’s six convictions of first-degree murder, arising from
three deaths, is improper and violates defendant’s double jeopardy rights. The appropriate
remedy is to modify defendant’s judgment of sentence to reflect only three convictions of firstdegree murder, each supported by two theories, premeditated murder and felony murder. People
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v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). Accordingly, we remand for this
purpose.
Affirmed and remanded for correction of the judgment of sentence in accordance with
this opinion. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Michael J. Talbot
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