PEOPLE OF MI V DAVID JAMAR BLAIR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 9, 2008
Plaintiff-Appellee,
v
No. 279914
Kent Circuit Court
LC No. 06-011905-FC
DAVID JAMAR BLAIR,
Defendant-Appellant.
Before: Hoekstra, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree felony murder,
MCL 750.316(1)(b); possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b; felon in possession of a firearm, MCL 750.224f; and assault with intent to rob
while armed, MCL 750.89. Because sufficient evidence supported defendant’s conviction for
first-degree felony murder, defendant failed to show that the verdict was against the great weight
of the evidence or that there was a plain error affecting his substantial rights, and defendant
failed to establish prosecutorial misconduct or a prima facie violation of the fair cross-section
requirement in the jury selection process, we affirm.
Defendant first argues that the prosecutor presented insufficient evidence to support the
jury’s verdict, or alternatively, that the verdict was against the great weight of the evidence. We
review challenges to the sufficiency of the evidence de novo. People v Martin, 271 Mich App
280, 340; 721 NW2d 815 (2006). In order to satisfy due process in a criminal case, a
defendant’s conviction must be based on evidence sufficient to justify the conclusion by the trier
of fact that the defendant is guilty beyond a reasonable doubt. People v Johnson, 460 Mich 720,
722-723; 597 NW2d 73 (1999). We review 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 Patterson, 428 Mich 502, 524-525;
410 NW2d 733 (1987). On review, all reasonable inferences and credibility choices are made in
support of the jury verdict. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
To determine whether a verdict is against the great weight of the evidence, the Court
must determine whether the evidence preponderates so heavily against the verdict that it would
be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 642643; 576 NW2d 129 (1998). Because defendant did not preserve this issue in the trial court, our
examination is limited to review for plain error affecting substantial rights. People v Carines,
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460 Mich 750, 763-764; 597 NW2d 130 (1999). Even where such error is found, we will reverse
the trial court judgment only if a plain error resulted in the conviction of an innocent defendant
or seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id.
To sustain a conviction for first-degree felony murder the prosecutor must prove: “(1) the
killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very
high risk of death or great bodily harm with knowledge that death or great bodily harm was the
probable result i.e., malice, (3) while committing, attempting to commit, or assisting in the
commission of any of the felonies specifically enumerated in [MCL 750.316(1)(b)].” Carines,
supra at 758-759. Assault with intent to rob while armed is a predicate felony under the felonymurder statute. People v Akins, 259 Mich App 545, 553; 675 NW2d 863 (2003). “The elements
of assault with intent to rob while armed are: (1) an assault with force and violence; (2) an intent
to rob or steal; and (3) the defendant’s being armed. Because this is a specific-intent crime, there
must be evidence that the defendant intended to rob or steal.” People v Cotton, 191 Mich App
377, 391; 478 NW2d 681 (1991) (internal citations omitted). Reasonable inferences drawn from
circumstantial evidence can be sufficient evidence to sustain a criminal conviction. Carines,
supra at 757.
On appeal, defendant does not dispute that the crime occurred or that the necessary
elements were proven beyond a reasonable doubt, with one exception. Defendant asserts that he
was not at the crime scene and was not the one who shot the gun. Identity is always an essential
element in every criminal prosecution. People v Oliphant, 399 Mich 472, 489; 250 NW2d 443
(1976). Here, considering the evidence in a light most favorable to the prosecution, there was
sufficient evidence to support beyond a reasonable doubt that defendant was at the crime scene
and shot the victim. Defendant was clearly identified as being at the crime scene and being the
shooter. And, the police later discovered that defendant jointly owned and had access to the gun
that killed the victim, Torry Hopson. Several witnesses, Brittany Dow, Ashley Hunter, and
Bobby Miller, all identified defendant, their friend, as the person who shot the victim. Contrary
to defendant’s argument on appeal, the prosecution witnesses’ credibility cannot be considered in
evaluating the sufficiency of the evidence. Lemmon, supra at 643-644.
With respect to defendant’s claim challenging the great weight of the evidence, defendant
has failed to show that the evidence preponderates heavily against the verdict, or that the
prosecution witnesses’ testimony was impeached to the extent that it was deprived of all
probative value that the jury could not believe it. Lemmon, supra at 642-643. We conclude,
after reviewing the record, there is no indication that the evidence preponderates so heavily
against the verdict that it would be a miscarriage of justice to allow the verdict to stand. Thus,
no plain error exists requiring reversal.
Defendant next argues that the prosecution’s witnesses were coerced into testifying
against defendant through police and prosecutorial misconduct. Unpreserved claims of
prosecutorial misconduct are reviewed for plain error. People v Watson, 245 Mich App 572,
586; 629 NW2d 411 (2001). Claims of prosecutorial misconduct are considered on a case-bycase basis, and the actions of the prosecutor are to be considered as a whole and evaluated in
light of the defense arguments and the evidence admitted at trial. People v Rodriguez, 251 Mich
App 10, 30; 650 NW2d 96 (2002). It is axiomatic that a prosecutor may not knowingly use false
testimony and has a constitutional obligation to correct false evidence if he knows or “can be
deemed to have known” that his witness lied. See People v Lester, 232 Mich App 262, 275-276,
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279; 591 NW2d 267 (1998). Furthermore, police or prosecutor intimidation used to coerce a
witness to testify or change his testimony amounts to a denial of defendant’s due process rights.
People v Hill, 257 Mich App 126, 135; 667 NW2d 78 (2003).
After reviewing the record, we conclude that defendant has failed to establish a factual
predicate showing that the police and prosecution coerced witnesses into offering false
testimony. The record here does not support defendant’s claim that his conviction was based on
false testimony. Defendant’s argument is based on minor inconsistencies and perceived bias. At
best, the record establishes credibility issues that were resolved by the jury in favor of finding
that defendant shot the victim during a robbery. The mere fact that a witness’s testimony
conflicts with other evidence does not establish that a prosecutor knowingly presented perjured
testimony. People v Parker, 230 Mich App 677, 690; 584 NW2d 753 (1998). Defendant has
failed to show that the prosecutor coerced witnesses or knowingly presented false testimony.
Therefore, defendant’s claim of prosecutorial misconduct is without merit.
Defendant next argues that defects in the Kent County jury selection system deprived him
of the right to an impartial jury drawn from a fair cross section of the community. We review
unpreserved constitutional errors for plain error that affects the substantial rights of the
defendant. Carines, supra at 763.1 To establish a prima facie violation of the fair cross-section
requirement, the defendant bears the burden of proving “(1) that the group alleged to be excluded
is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this under-representation is due to systematic exclusion of the group
in the jury-selection process.” People v Smith, 463 Mich 199, 215; 615 NW2d 1 (2000), quoting
Duren v Missouri, 439 US 357; 99 S Ct 664; 58 L Ed 2d 579 (1979).
Defendant has failed to prove the second prong of the test. Defendant’s only evidence of
underrepresentation was his own observation of his jury array that he claims contained only three
minorities. But defendant did not present evidence of underrepresentation for jury venires in
Kent County in general. “Merely showing one case of alleged underrepresentation does not rise
to a ‘general’ underrepresentation that is required for establishing a prima facie case.” People v
Williams, 241 Mich App 519, 526; 616 NW2d 710 (2000). Defendant has also failed to meet the
third prong of the test. His counsel mentioned past systematic errors, and the trial court
acknowledged an error that existed years previous but had since been resolved.2 However,
defendant produced no evidence that systematic exclusion existed at the time he chose his jury.
“[S]ystematic exclusion cannot be shown by one or two incidents of a particular venire being
disproportionate.” People v Flowers, 222 Mich App 732, 737; 565 NW2d 12 (1997). Therefore,
1
Regardless of defendant’s claims to the contrary, we do not accept that the claim is somehow
preserved. Defendant did not challenge the jury array until the third day of trial, after the jury
was impaneled and sworn. People v Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996).
2
Defendant attached to his brief several exhibits including newspaper articles chronicling the
jury pull glitch that occurred in 2002. But, defendant may not expand the record on appeal.
People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
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defendant has failed to establish a prima facie case of racial discrimination and his claim is
without merit.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
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