PEOPLE OF MI V SERGIA G LIGON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 28, 2007
Plaintiff-Appellee,
v
No. 267806
Wayne Circuit Court
LC No. 05-005640-01
SERGIA G. LIGON,
Defendant-Appellant.
Before: Servitto, P.J., and Jansen and Schuette, JJ.
PER CURIAM.
Defendant was charged with three counts of first-degree premeditated murder, MCL
750.316(1)(a), three counts of assault with intent to commit murder, MCL 750.83, felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b(1). Following a jury trial, he was convicted of three
counts of second-degree murder, MCL 750.317, three counts of assault with intent to do great
bodily harm less than murder, MCL 750.84, felon in possession of a firearm, and felony-firearm.
He was sentenced as a second habitual offender, MCL 769.10, to concurrent prison terms of 54
years and 8 months to 85 years for the second-degree murder convictions, seven to ten years for
the assault convictions, and 18 months to 5 years for the felon-in-possession conviction, to be
served consecutive to a five-year term of imprisonment for the felony-firearm (second offense)
conviction. He appeals as of right. We affirm.
I. FACTS
Defendant’s convictions arise from an altercation that ended in the shooting deaths of
Anthony Smith, Tyrone Smith, and Jermaine Henry, and assaults of Nicole Vaughn, Shirley
Smith, and Frisco Williams. The situation began as a street fight between two girls, but
escalated into a larger altercation where several gunshots were fired. Nicole Vaughn enlisted the
aid of her brothers, Kimani and Chris. Evidence indicated that defendant procured a gun from
Mike King, and then accompanied Nicole, Kimani, and Chris, to the scene of the fight, where a
large crowd had gathered. Conflicting testimony was presented regarding who approached the
crowd, who had a gun, and who shot whom. Most of the witnesses agreed that Chris was a
shooter. Some witnesses saw two men with guns; others saw only one man with a gun.
Monique Powell identified defendant as being at the scene, but only Nicole and Kimani testified
that defendant shot Anthony Smith. The prosecutor’s theory at trial was that defendant aided and
abetted Chris.
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II. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to support his convictions. We
disagree.
A. Standard of Review
In reviewing the sufficiency of the evidence, this Court must view the evidence in the
light most favorable to the prosecution to determine whether a rational trier of fact could find
that the essential elements of the crime were proven beyond a reasonable doubt. People v
Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005).
B. Analysis
Second-degree murder is a general intent crime, which requires proof of malice. Malice
is shown by evidence of an intent to kill, an intent to inflict great bodily harm, or an intent to
create a very high risk of death with the knowledge that the act probably will cause death or great
bodily harm. A general intent to kill need not be directed at an identified individual or the
eventual victim, and circumstantial evidence and the inferences from the evidence are admissible
to establish malice. People v Abraham, 256 Mich App 265, 269-270; 662 NW2d 836 (2003).
Assault with intent to do great bodily harm less than murder is a specific intent crime.
The elements are: “‘(1) an attempt or threat with force or violence to do corporal harm to
another (an assault), and (2) an intent to do great bodily harm less than murder.’” People v
Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005), quoting People v Parcha, 227 Mich
App 236, 239; 575 NW2d 316 (1997) (emphasis added by the Brown Court). The intent
necessary may be established by several mental states, including an intent to inflict great bodily
harm, i.e., an intent to do serious injury of an aggravated nature, or wanton and willful disregard.
Id. at 149-150.
The prosecutor argued that defendant was guilty under an aiding and abetting theory,
with Chris as the principal. “The general rule is that, to convict a defendant of aiding and
abetting a crime, a prosecutor must establish that ‘(1) the crime charged was committed by the
defendant or some other person; (2) the defendant performed acts or gave encouragement that
assisted the commission of the crime; and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.’” People v Moore, 470 Mich 56, 67-68; 679 NW2d 41
(2004), quoting People v Carines, 460 Mich 750, 768; 597 NW2d 130 (1999) (alteration by the
Moore Court). As noted in Carines, supra at 757-758:
“Aiding and abetting” describes all forms of assistance rendered to the
perpetrator of a crime and comprehends all words or deeds that might support,
encourage, or incite the commission of a crime. . . . An aider and abettor’s state
of mind may be inferred from all the facts and circumstances. Factors that may be
considered include a close association between the defendant and the principal,
the defendant’s participation in the planning or execution of the crime, and
evidence of flight after the crime. [Citation omitted.]
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Defendant argues that the evidence did not support his murder or assault convictions,
either as a principal or an aider and abettor. We disagree. Kimani and Nicole testified that
defendant was armed with a gun and used it. Although they had motive to lie to protect Chris,
credibility determinations should be left to the jury. People v Fletcher, 260 Mich App 531, 561;
679 NW2d 127 (2004). Also, Monique Powell testified that defendant was wearing a blue shirt.
And another witness testified that the person with Nicole’s brother was wearing a blue shirt and
was the shooter. Although some witnesses identified Chris as the shooter and the testimony
varied with regard to whether he wore a white or blue shirt, all conflicts should be resolved in
favor of the prosecution. Id. at 562.
In regard to intent, it was reasonable for the jury to infer that defendant’s use of a gun in a
large crowd showed, at a minimum, wanton and willful disregard for the likelihood that the harm
he may cause would create a very high risk of death with knowledge that the act probably would
cause death or great bodily harm. Also, under the theory of transferred intent, it was sufficient
that defendant possessed this state of mind, regardless of whether it was directed at a specific
person. Abraham, supra at 270.
Under an aiding and abetting theory, there was ample evidence that Chris was the
shooter. Four witnesses testified that Chris was the shooter. One of those witnesses further
testified that Chris sprayed the crowd with bullets, shooting randomly in an arc from one side of
the street to the other. Two other witnesses testified that the shooter confronted the group and
asked who was messing with his sister. Kimani admitted that both he and Chris made this
statement. Witnesses testified that both Chris and defendant engaged in a physical fight with
others at the scene. It was reasonable for the jury to infer from the circumstances that defendant
accompanied Chris in order to assist him in the fight. As our Supreme Court recently explained
in People v Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006), “a defendant is liable for the crime
the defendant intends to aid or abet as well as the natural and probable consequences of that
crime.” Here, the offenses for which defendant was convicted (second-degree murder and
assault with intent to do great bodily harm) were a natural and probable consequence of engaging
in a confrontation and assault while armed with a handgun.
Regardless of the theory on which the jury relied, there was sufficient evidence to support
defendant’s other convictions. Regarding the felony-firearm charge, the prosecutor had to prove
that defendant possessed a firearm during the commission of a felony or that he aided and
abetted someone who did. People v Akins, 259 Mich App 545, 554-555; 675 NW2d 863 (2003).
As previously discussed, the evidence supported an inference that defendant possessed a gun and
used it in the commission of a felony. Regarding the felon in possession of a firearm charge, the
parties stipulated that defendant had a previous felony conviction and could not legally possess a
firearm. Kimani testified that he saw defendant retrieve a gun from King’s trunk. The trial court
may not determine the weight of the evidence or the credibility of the witnesses, regardless of
how inconsistent or vague the testimony was. People v Mehall, 454 Mich 1, 6; 557 NW2d 110
(1997). Thus, there was sufficient evidence to support defendant’s convictions for these two
charges. 1
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Having concluded that there was sufficient evidence to support defendant’s convictions, we
(continued…)
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III. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor engaged in misconduct concerning late
disclosure of police reports, by encouraging false testimony, by making improper comments
during closing arguments, and by failing to produce evidence. Again, we disagree.
A. Standard of Review
This Court reviews de novo claims of prosecutorial misconduct to determine whether a
defendant was denied a fair and impartial trial. People v Cox, 268 Mich App 440, 450-451; 709
NW2d 152 (2005). However, we review unpreserved claims of error only for plain error
affecting a defendant’s substantial rights. Carines, supra at 763-764.
B. Analysis
Defendant argues that he was prejudiced by the late disclosure of a fingerprint
comparison report and another police report. Although the fingerprint report indicated that none
of the lifted prints from a van in which defendant allegedly rode to the scene matched
defendant’s prints, defendant asserts that it bolstered the evidence technician’s testimony
regarding the relative uselessness of fingerprint evidence in this case. However, the prosecutor
only engaged in that line of questioning in response to defendant’s cross-examination. Given
that the evidence was exculpatory, that defendant was able to cross-examine the fingerprint
examiner, and that defendant was allowed to argue the evidence in his closing argument, we fail
to see how defendant was denied a fair trial.
The other report related to a police officer’s testimony that Frisco Williams was
transported by EMS to the hospital after the shootings, contrary to Williams’s testimony that he
drove himself to the hospital. Defendant asserts that the officer’s testimony made Williams look
like a “lying fool” and suggested that defendant was manipulating the witness or that Williams
was hiding information for defendant. Williams admitted, however, that his intoxication from
drinking and smoking marijuana may have affected his memory. Additionally, in her direct
examination, the prosecutor raised inconsistencies between Williams’s police statement and his
trial testimony. Thus, his credibility was already suspect. Under these circumstances, defendant
was not denied a fair trial.
Defendant also argues that the prosecutor allowed Nicole and Kimani to give false
testimony when they stated that defendant shot Anthony Smith. Defendant presents no evidence
(…continued)
need not address defendant’s claims challenging whether there was sufficient evidence at the
preliminary examination on which to bind him over for trial on the original, greater charges, or
whether the trial court properly denied his motion for a directed verdict and submitted the
original charges to the jury. Defendant was not convicted of the original charges, so any error
was harmless. See People v Graves, 458 Mich 476, 479 n 2, 486; 581 NW2d 229 (1998); People
v Moorer, 246 Mich App 680, 682; 635 NW2d 47 (2001); People v Meadows, 175 Mich App
355, 359; 437 NW2d 405 (1989).
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that the prosecutor had knowledge that Kimani and Nicole perjured themselves, and it is
apparent that defendant was aware of the substance of the witnesses’ testimony based on their
preliminary examination testimony and testimony at the previous trial of Chris and King.
Defendant did not object to their testimony or seek to exclude it. Moreover, the prosecutor
argued that defendant was guilty under an aiding and abetting theory. Under these
circumstances, defendant has not established a plain error affecting his substantial rights.
Defendant also objects to statements made by the prosecutor in her closing argument
regarding King. The first claim of error is unpreserved. In closing argument, the prosecutor
discussed the law of aiding and abetting, attempting to demonstrate that defendant did not need
to do anything at the scene in order to be held liable for the murders and assaults. She focused
on defendant’s conduct before his arrival at the scene. To illustrate this point, she stated that no
one had identified King at the scene, yet he had been convicted. Regardless of the accuracy of
the prosecutor’s statement, defendant’s substantial rights were not affected. The prosecutor was
simply making a point regarding aiding and abetting law. She did not argue that defendant
should be convicted because King was, but rather consistently argued the evidence as it applied
to defendant. Therefore, appellate relief is not warranted. Carines, supra at 763.
Defendant also takes issue with a statement regarding King that the prosecutor made in
her rebuttal closing argument. To the extent that the prosecutor may have misstated defendant’s
comments, defendant was not denied a fair trial. The prosecutor was again trying to point out
that defendant did not need to be identified at the scene in order to be convicted. His actions
beforehand were sufficient. Furthermore, the trial court instructed the jury on the law and that
the lawyer’s arguments were not evidence. This was sufficient to cure any prejudice. See
People v Matuszak, 263 Mich App 42, 58; 687 NW2d 342 (2004).
Lastly, defendant argues that the prosecutor’s failure to produce the bullet that was
removed from Tyrone Smith’s body denied him his right to present a substantial defense. We
note that defendant did not raise this issue below. Therefore, our review is limited to plain error
affecting defendant’s substantial rights. Carines, supra at 763.
There is no evidence that defendant requested, before or during trial, that the bullet be
turned over to him for analysis or that a report was generated that the prosecutor failed to
provide. Investigator Simon testified that she did not know if the bullet was submitted to
ballistics for testing. Defendant’s discovery motion only requested an opportunity to inspect
tangible evidence if it was to be introduced at trial. The bullet was not introduced. To the extent
defendant argues that there was a duty to have the bullet tested to determine whether it was fired
from a revolver or an automatic weapon, no such duty existed. See People v Anstey, 476 Mich
436; 461; 719 NW2d 579 (2006) (distinguishing between failing to disclose evidence that has
been developed and failing to develop evidence in the first instance, and holding that there is no
constitutional duty to assist a defendant in developing potentially exculpatory evidence).
Accordingly, defendant has not demonstrated a plain error.
IV. JURY INSTRUCTIONS
Defendant also argues that the trial court erred in denying his request for a disputed
accomplice instruction and its accompanying cautionary instruction because it applied to Kimani.
We disagree.
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A. Standard of Review
This Court reviews for an abuse of discretion a trial court’s decision whether to give an
accomplice jury instruction. People v Young, 472 Mich 130, 135; 693 NW2d 801 (2005). An
abuse of discretion occurs when the result is outside the principled range of outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
B. Analysis
The disputed accomplice instruction, CJI2d 5.5, states:
(1) Before you may consider what [name witness] said in court, you must
decide whether [he/she] took part in the crime the defendant is charged with
committing. [Name witness] has not admitted taking part in the crime, but there is
evidence that could lead you to think that [he/she] did.
(2) A person who knowingly and willingly helps or cooperates with
someone else in committing a crime is called an accomplice.
(3) When you think about [name witness]'s testimony, first decide if
[he/she] was an accomplice. If, after thinking about all the evidence, you decide
that [he/she] did not take part in this crime, judge [his/her] testimony as you judge
that of any other witness. But, if you decide that [name witness] was an
accomplice, then you must consider [his/her] testimony in the following way:
[CJI2d 5.6 is then to be given.]
The instruction is only required if supported by the evidence. People v Ho, 231 Mich App 178,
189; 585 NW2d 357 (1998). The trial court refused to give the instruction because it found there
was no evidence that Kimani was an accomplice.
Defendant argues that this jury instruction should have been given because several
witnesses stated that one of the shooters asked who was messing with his sister and Kimani
admitted that he asked that question. In response, plaintiff argues that although Kimani testified
that he asked the question, the witness who identified that person as the shooter of Anthony
Smith stated that the person was Chris. Defendant contends, however, that other witnesses
testified that the shooter asked who was messing with his sister and they were unable to identify
that person, leaving the door open to the possibility that the person was Kimani.
We believe that there was scant evidence to support the instruction and defendant’s
argument was weak in light of the other evidence. But there may have been a very tenuous
question of fact whether Kimani was an accomplice to Chris. Defendant argues that the trial court
abused its discretion in failing to give the instruction and in submitting the question to the jury.
People v Perry, 218 Mich App 520, 527-529; 554 NW2d 362 (1996), aff'd 460 Mich 55 (1999).
But even if defendant’s argument is plausible, reversal is not required if the error was harmless,
i.e., it is not more probable than not that the error affected the outcome of the proceedings.
Young, supra at 141-142. Although Kimani was the only one to testify to seeing defendant with a
gun before the shooting, Nicole testified that defendant called for a gun and later saw him shoot
Anthony. Other witnesses testified that a person in a blue shirt entered the fight with Chris and one
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witness identified this person as defendant. Also, several witnesses testified that these two people
both had guns. In light of this other evidence, if the failure to give this requested jury instruction
was error, it was harmless.
V. SENTENCING
Finally, defendant argues that the trial court improperly considered his lack of remorse
when fashioning his sentences. Although lack of remorse is an impermissible consideration in
determining whether to depart from the sentencing guidelines range because it is not objective
and verifiable, People v Daniel, 462 Mich 1, 8; 609 NW2d 557 (2000), it is otherwise a proper
sentencing consideration because it is relevant to a defendant’s potential for rehabilitation.
People v Houston, 448 Mich 312, 323; 532 NW2d 508 (1995). In any event, defendant was
sentenced within the appropriate guidelines ranges and does not assert that there were scoring
errors or factual inaccuracies in the presentence investigation report. Therefore, resentencing is
not warranted. MCL 769.34(10); People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004).
Affirmed.
/s/ Deborah A. Servitto
/s/ Kathleen Jansen
/s/ Bill Schuette
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