PEOPLE OF MI V SHABREA DREW MCCLINTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 12, 2009
Plaintiff-Appellee,
v
No. 277695
Berrien Circuit Court
LC Nos. 2006-404884-FH;
2006-405093-FH
SHABREA DREW MCCLINTON,
Defendant-Appellant.
Before: Murphy, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
A jury convicted defendant of witness intimidation, MCL 750.122(7)(c), resisting and
obstructing a police officer, MCL 750.81d(1), and disturbing the peace, MCL 750.170. The trial
court sentenced defendant as an habitual offender, third offense, MCL 769.11, to a prison term of
106 months to 30 years for the witness intimidation conviction, and to jail terms of 140 days for
resisting and obstructing a police officer and 90 days for disturbing the peace. Defendant
appeals as of right. We affirm.
Defendant first argues that the evidence was not sufficient to support defendant’s
conviction of witness intimidation. In reviewing the sufficiency of the evidence, we view the
evidence in a light most favorable to the prosecution to determine whether a rational trier of fact
could find that the essential elements of the crime were proved beyond a reasonable doubt.
People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). “Circumstantial evidence and
reasonable inferences arising therefrom may be sufficient to prove the elements of the crime.”
People v Plummer, 229 Mich App 293, 299; 581 NW2d 753 (1998). Intent may be inferred from
minimal circumstantial evidence and the reasonable inferences that arise from the evidence.
People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001).
MCL 750.122 “identif[ies] and criminalize[s] the many ways individuals can prevent or
attempt to prevent a witness from appearing and providing truthful information in some sort of
official proceeding.” People v Greene, 255 Mich App 426, 438; 661 NW2d 616 (2003). The
statute provides in relevant part:
(3) A person shall not do any of the following by threat or intimidation:
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(a) Discourage or attempt to discourage any individual from attending a present or
future official proceeding as a witness, testifying at a present or future official
proceeding, or giving information at a present or future official proceeding.
(b) Influence or attempt to influence testimony at a present or future official
proceeding.
(c) Encourage or attempt to encourage any individual to avoid legal process, to
withhold testimony, or to testify falsely in a present or future official proceeding.
***
(7) A person who violates this section is guilty of a crime as follows:
***
(c) If the violation involves committing or attempting to commit a crime or a
threat to kill or injure any person or to cause property damage, the person is guilty
of a felony punishable by imprisonment for not more than 15 years or a fine of not
more than $25,000.00, or both.
MCL 750.122 punishes both completed and attempted acts of witness interference. Greene,
supra at 440. An attempt consists of two elements: “(1) an intent to do an act or to bring about
certain consequences which would in law amount to a crime; and (2) an act in furtherance of that
intent which, as it is most commonly put, goes beyond mere preparation.” People v Jones, 443
Mich 88, 100; 504 NW2d 158 (1993) (quotation omitted).
Here, because defendant did not succeed in preventing Officer Smigielski from appearing
and providing truthful information at the preliminary examination, the jury necessarily found that
defendant attempted to prevent Officer Smigielski from appearing and providing truthful
information at the preliminary examination. Defendant argues that the prosecutor failed to
present evidence that defendant’s death threats toward Officer Smigielski were intended to
interfere with Officer Smigielski’s appearance at the preliminary examination. He contends that
the threats he made at the jail on the day before his preliminary examination were merely part of
a hostile tirade directed toward all police officers, and that no evidence was presented to support
a finding that defendant attempted to prevent or influence Officer Smigielski’s testimony with
his threats.
The evidence presented at trial revealed that Officer Smigielski arrested defendant on
September 11, 2006. On September 20, 2006, the day before defendant’s preliminary
examination, Officer Smigielski was at the jail booking a suspect in an unrelated case.
Defendant was in a cell across the hall from where the booking was taking place. When
defendant saw Officer Smigielski, defendant “went berserk.” He began yelling angry statements
at Officer Smigielski and making death threats. Officer Smigielski testified that defendant asked
him if he was going to be attending the “trial” or “hearing” the next day and stated that Officer
Smigielski should not wear his “blues” (his police uniform) because defendant would take them
from him and when “the Court was all done with,” defendant would come and find him and kill
him. Officer Smigielski interpreted this as an attempt to discourage him from attending the
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preliminary examination. Deputy Brian Thompson witnessed the verbal attack on Officer
Smigielski. He recalled that defendant said, “What are you gonna say tomorrow? You need to
watch what you gonna say.” Deputy Thompson also heard defendant say, “You bitch, I’m gonna
kill you,” “You’re [sic] bullet proof vest isn’t gonna do you any good,” “You better get you a
hard hat because I’m gonna shoot you in the head.” Defendant also made reference to a fortycaliber handgun. These threats were unequivocally made in conjunction with defendant’s
inquiry as to whether Officer Smigielski would be attending the preliminary examination the
follow day. Viewed in a light most favorable to the prosecution, the evidence was sufficient to
allow reasonable jurors to infer that defendant attempted to discourage Officer Smigielski from
testifying or giving information at the preliminary examination, attempted to influence Officer
Smigielski’s testimony, or attempted to encourage Officer Smigielski to withhold testimony or
testify falsely. Further, defendant’s threat to kill or injure the officer satisfied the requirement of
MCL 750.122(7)(c), that there is a threat to kill or injure.
Defendant also argues that he was denied the right to present a defense when the trial
court erroneously prevented him from presenting relevant evidence tending to show the
credibility or bias of Officer Smigielski. A trial court’s decision to admit evidence is reviewed
for an abuse of discretion. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003).
However, whether a defendant’s right to present a defense was violated by the exclusion of
evidence is a constitutional question that is reviewed de novo. People v Kurr, 253 Mich App
317, 327; 654 NW2d 651 (2002); People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997).
A defendant has a right under the state and federal constitutions, Const 1963, art 1, § 13;
US Const, Ams VI, XIV, to confront witnesses and to present a defense. People v Whitfield, 425
Mich 116, 124 n 1; 388 NW2d 206 (1986). However, the right to confront witnesses and present
a defense extends only to relevant and admissible evidence. People v Hackett, 421 Mich 338,
354; 365 NW2d 120 (1984). “’Relevant evidence’ means 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. Evidence that is not relevant
is not admissible. MRE 402. Here, a review of defendant’s offer of proof with regard to the
excluded evidence reveals that the evidence was not relevant to the only issue for which it was
offered – credibility and bias. Because the proffered evidence was not relevant, the trial court did
not abuse its discretion by declining to admit the evidence, and defendant’s constitutional right to
present a defense was not implicated.
Defendant next argues that he was denied his state and federal constitutional right to due
process as a result of being in leg shackles and shackled to the floor during the trial.1
Constitutional claims are reviewed de novo. Pitts, supra. However, the ultimate decision
whether to restrain a defendant is reviewed for an abuse of discretion under the totality of the
circumstances. People v Dixon, 217 Mich App 400, 404-405; 552 NW2d 663 (1996). “[A]
defendant may be shackled only on a finding supported by record evidence that this is necessary
[to] prevent escape, injury to persons in the courtroom or to maintain order.” People v Dunn,
1
During trial, defendant’s legs were shackled together and to the floor under the defense table.
A curtain made of cotton skirted the defense table.
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446 Mich 409, 425; 521 NW2d 255 (1994). Here, the record supports the trial court’ finding that
it was necessary to shackle defendant to prevent injury to persons in the courtroom. Defendant
had previously threatened to kill police officers. Some of the police officers whose lives were
threatened by defendant were planning to testify at the trial. Indeed, defendant was on trial for
resisting and obstructing, and on a consolidated, additional charge of witness intimidation for
threatening an officer with death related to that officer’s plans to testify at the preliminary
examination. Further, while defendant claims that the noise from the shackles would have been
better masked in another courtroom, the trial court disagreed. More importantly, nothing in the
record supports that the jury knew defendant was shackled during trial. Consequently, defendant
was not denied his constitutional right to a fair trial and the trial court did not abuse its discretion
in determining that defendant’s legs should be shackled together and to the floor.
Affirmed.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
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