PEOPLE OF MI V JERMOND LAWRENCE PERRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 13, 2011
Plaintiff-Appellee,
v
No. 294223
Wayne Circuit Court
LC No. 03-011974-FC
JERMOND LAWRENCE PERRY,
Defendant-Appellant.
Before: K. F. KELLY, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of first-degree,
premeditated murder, MCL 750.316(1)(a), two counts of first-degree, felony-murder, MCL
750.316(1)(b), one count of being a felon in possession of a firearm, MCL 750.224f, and one
count of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. Defendant was sentenced to life imprisonment for the first-degree murder
convictions, three to five years’ imprisonment for the felon in possession of a firearm conviction,
and two years’ imprisonment for the felony-firearm conviction. We affirm.
I. EXTRINSIC INFLUENCE ON JURY
Defendant first argues that he is entitled to a new trial because ex parte communications
allegedly occurred between the officer in charge and the jury. We disagree. While a trial court’s
factual findings are reviewed for clear error, its decision to deny a motion for a new trial is
reviewed for an abuse of discretion. People v Miller, 482 Mich 540, 544; 759 NW2d 850
(2008). “Clear error exists if the reviewing court is left with a definite and firm conviction that a
mistake has been made.” Id. A trial court abuses its discretion when it chooses an outcome that
falls outside the principled range of outcomes. Id.
At the outset, we note that defendant relies on People v France, 436 Mich 138; 461
NW2d 621 (1990), to argue that he was prejudiced. However, defendant’s reliance is misplaced
because France addressed ex parte communications between the trial court and a deliberating
jury which is prohibited under MCR 6.414(B). Id. at 142-144. Neither of these factors is present
in the instant case. Rather, defendant alleges that the officer in charge had ex parte contact with
the jurors after the jury was selected but before opening statements were presented.
Accordingly, the situation defendant alleges is more properly characterized as an extrinsic
influence on the jury.
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In order to establish that the extrinsic influence was error requiring
reversal, the defendant must initially prove two points. First, the defendant must
prove that the jury was exposed to extraneous influences. Second, the defendant
must establish that these extraneous influences created a real and substantial
possibility that they could have affected the jury’s verdict. Generally, in proving
this second point, the defendant will demonstrate that the extraneous influence is
substantially related to a material aspect of the case and that there is a direct
connection between the extrinsic material and the adverse verdict. [People v
Budzyn, 456 Mich 77, 88-89; 566 NW2d 229 (1997) (citations omitted).]
Here, two witnesses, Nicole Beedle, a co-worker, and defendant’s mother, Jill Perry,
testified at a post-trial evidentiary hearing that the officer in charge allegedly gathered the jurors
at the end of the hallway outside the courtroom and escorted them into a separate room for up to
ten minutes. Ultimately, the trial judge found the witnesses’ accounts to be incredible and he
denied defendant’s motion. After our review of the record, we cannot disagree with his
conclusion. Both witnesses misidentified the officer as Officer “Menendez,”1 although Jill
testified that she had obtained the officer’s business card. Neither witness heard what, if
anything, the officer said to the jurors. Jill thought the trial lasted two months, when it only
lasted four days. Jill also thought that the officer in charge was the only witness who testified at
trial, when there were actually 16 witnesses. Jill further testified that, by the time she and her
family entered the courtroom several minutes after seeing the jurors and the officer in charge
enter into this other room, Officer “Menendez” was already seated at the prosecutor’s table.
Regarding Beedle’s testimony, even though she said she attended every day of trial, she
stated that she was not sure if Officer “Menendez” testified at the trial.2 Additionally, Beedle
was not sure if these “jurors” were even wearing juror badges and she changed her story while
testifying. Initially, Beedle said that the next time she saw the jurors, after they entered the room
with Officer “Menendez,” was when they entered the courtroom through the jury room door.
But later, Beedle stated that she saw the jurors enter the courtroom through the regular entrance,
then enter the jury room, before exiting out of that jury room door. “[I]f resolution of a disputed
factual question turns on the credibility of witnesses or the weight of the evidence, [reviewing
courts should] defer to the trial court, which had a superior opportunity to evaluate these
matters.” People v Sexton, 461 Mich 746, 752; 609 NW2d 822 (2000). Thus, given the
credibility concerns raised through the witnesses’ testimony, the trial court was within its right to
deem the testimony unreliable and we should not disturb its findings. Sexton, 461 Mich at 752.
Accordingly, defendant failed to establish that the jury was exposed to any extraneous influence.
The trial court did not abuse its discretion by denying defendant’s motion for a new trial.
1
The officer in charge’s name was Officer Moises Jimenez.
2
Officer Jimenez did testify at trial.
-2-
II. BATSON3 OBJECTION
Defendant next argues that he is entitled to a new trial because the prosecutor allegedly
discriminated against three black members of the jury pool when he used peremptory challenges
to remove them from the jury pool. We disagree. A Baston challenge presents mixed questions
of fact and law that we review under the clearly erroneous and de novo standards, respectively.
People v Knight, 473 Mich 324, 342-345; 701 NW2d 715 (2005).
The Equal Protection Clause of the Fourteenth Amendment prohibits a party from
exercising peremptory challenges to remove a prospective juror solely on the basis of the
person’s race. Knight, 473 Mich at 335. The party opposing a peremptory challenge must make
a prima facie showing of discrimination. Id. at 336, citing Batson v Kentucky, 476 US 79, 96;
106 S Ct 1712; 90 L Ed 2d 69 (1986). Once a party establishes a prima facie case the burden
shifts to the proponent of the peremptory challenge to articulate a race-neutral basis for the
challenge. Knight, 473 Mich at 337. If the proponent provides a race-neutral explanation, the
trial court must then determine whether the opponent of the challenge has proved purposeful
discrimination. Knight, 473 Mich at 337-338. The establishment of purposeful discrimination
“comes down to whether the trial court finds the . . . race-neutral explanations to be credible.”
People v Bell, 473 Mich 275, 283; 702 NW2d 128 (2005), amended 474 Mich 1201 (2005),
quoting Miller-El v Cockrell, 537 US 322, 339; 123 S Ct 1029; 154 L Ed 2d 931 (2003).
Here, defendant contends that the trial judge erred by failing to perform this Batson
analysis for all three black jurors that were peremptorily dismissed. However, at trial, defendant
only objected to the last one dismissed, juror Holley:
Your Honor, the only issue is I was challenging the release of Loretta
Holley by the prosecutor. She was the third African American. In fact, the third
African American female that the prosecutor released.
At that point in time he only had one other individual that he had released,
and that was Mr. Mero.
So that’s why I’m making a challenge because he had released two other
African Americans at the time he released Ms. Holley. [Emphasis added.]
Consequently, the prosecutor only provided an explanation for his decision to use a peremptory
challenge on Holley. The trial court, as well, only focused on the use of a challenge on Holley.
At no time did defense counsel object to the lack of discussion involving the other two jurors.
Accordingly, we conclude that defendant has waived his argument on appeal that the trial court
3
Batson v Ky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
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erred by not applying the Batson analysis with respect to the other two jurors. See Knight, 473
Mich at 346-347. Defendant’s Batson claim fails.4
III. EVIDENTIARY RULINGS
Defendant next claims that several evidentiary errors deprived him of a fair trial. A trial
court’s decision to admit evidence is reviewed for a clear abuse of discretion. People v Aldrich,
246 Mich App 101, 113; 631 NW2d 67 (2001). “An abuse of discretion occurs when the court
chooses an outcome that falls outside the range of reasonable and principled outcomes.” People
v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). To the extent that defendant’s
arguments are unpreserved, our review is for plain error affecting substantial rights. People v
Hawkins, 245 Mich App 439, 447; 628 NW2d 105 (2001). Reversal for unpreserved matters is
warranted only “if the defendant is actually innocent or the error seriously undermined the
fairness, integrity, or public reputation of the trial.” People v Pipes, 475 Mich 267, 274; 715
NW2d 290 (2006).
A. OUT-OF-COURT STATEMENTS OF JAMES
Defendant first contends that the trial court abused its direction when it admitted a
statement that the murder victims’ six-year-old son, James, made to Officer Gina Gallow
because it did not qualify as an excited utterance. We disagree. MRE 803(2) provides an
“excited utterance” exception to the bar on hearsay: “A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.” There are two primary requirements for a statement to be admissible under the
excited utterance exception: “1) that there be a startling event, and 2) that the resulting statement
be made while under the excitement caused by the event.” People v Smith, 456 Mich 543, 550;
581 NW2d 654 (1998). “It is the lack of capacity to fabricate, not the lack of time to fabricate,
that is the focus of the excited utterance rule. The question is not strictly one of time, but of the
possibility for conscious reflection.” Id. at 551.
James made the complained of statements to Officer Gallow the day after the murders.
Officer Gallow was the first to respond to the scene and James indicated to her that armed men
stormed into the house and led his parents by gunpoint into the basement. According to Officer
Gallow, James said that he later heard nearly two-dozen gunshots. Certainly, given the lapse of
time between James’ statements and the shootings, the question whether his statements
constituted excited utterances presents a close evidentiary question. However, under the
circumstances, we cannot conclude that the trial court abused its discretion by admitting James’
4
We note that Knight does direct courts to apply the Batson analysis to all strikes in an alleged
pattern, even if the prior strikes were not specifically objected to earlier. Knight, 473 Mich at
346. However, after our review of the record, we can discern no pattern of strikes evincing a
prima facie showing of discrimination.
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out-of-court statements. Given James’ demeanor at the time he made the statements, it is a
reasonable conclusion that he was still under the stress of perceiving his parents’ murders.
Although Officer Gallow testified that James was calm but fearful, several other testimonies
indicated that he was crying and frantic. Further, contrary to defendant’s argument, the startling
event includes the entire event, from the moment the gunmen entered the house, to the gunshots
being fired, and arguably until the police arrived at the scene the next day. Because a trial
court’s determination of whether a declarant’s statement was made while under the stress of an
event is given “wide discretion,” this Court will defer on these close calls. Id. at 552; see also
People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995) (stating that a trial court’s decision
on a close evidentiary question cannot be an abuse of discretion). Accordingly, the trial court did
not abuse its discretion when it found that James’s statement to Officer Gallow qualified as an
excited utterance exception to hearsay.5
B. STATEMENTS MADE BY CODEFENDANTS, YOUNG AND HAMILTON
Defendant also argues that he is entitled to a new trial because hearsay statements made
by the two codefendants, Young and Hamilton, were permitted into evidence. Specifically, with
respect to Young, defendant takes issue with three statements: (1) Young hoped that the people
inside the victims’ home were dead, (2) Young was going to take the shotgun home, and (3)
Young believed that defendant shot Young’s hand. Similarly, defendant contends two
statements made by Hamilton constituted impermissible hearsay: (1) Hamilton stating that “it
was a bullshit lick”6 and (2) Hamilton saying that he shot the female victim. Defendant did not
object to the admission of any of these statements at trial.
Generally, hearsay is inadmissible. MRE 802. But not all out-of-court statements are
hearsay; only statements that are offered to establish the truth of the matter asserted are hearsay.
MRE 801; People v Stamper, 480 Mich 1, 4; 742 NW2d 607 (2007). Moreover, even if a
statement is hearsay, it may be admissible under one of the exceptions to the hearsay rule. See
MRE 803; MRE 804.
Here, Young’s first two statements fall under the then existing state of mind exception to
hearsay, MRE 803(3), which states
5
We note that to the extent that it was error to admit the statement, any error was harmless.
Evidentiary error does not warrant reversal unless it involves a substantial right, and after an
examination of the entire cause, it affirmatively appears that it is more probable than not that the
error was not outcome determinative. People v Moorer, 262 Mich App 64, 74; 683 NW2d 736
(2004). Given that James’s statement to Officer Gallow did not introduce anything new for the
jurors, we do not believe any evidentiary error was outcome determinative.
6
There was testimony presented that a “lick” is slang for robbing or breaking into somebody’s
house.
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A statement of the declarant’s then existing state of mind, emotion, sensation or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revocation
identification, or terms of declarant’s will.
Clearly, Young stating that he wished that the people were dead conveyed Young’s then existing
state of mind. Similarly, Young stating that he was going to take the shotgun home also
conveyed his then existing state of mind or his plan at the time. As a result, these statements
were hearsay, but fell under a recognized exception to hearsay and were admissible. Moorer,
262 Mich App at 68-69. Defendant has failed to demonstrate any error with respect to the
admission of these statements.
With regard to Young’s third statement, we are of the view that it was not offered to
prove the truth of the matter asserted, i.e., that defendant shot Young’s hand. When viewing the
statement in the context of prosecution’s examination, it is clear that the prosecutor did not ask
the question to determine whether defendant was the actual cause of Young’s injury. Rather, the
statement was offered merely to show that defendant was present at the shooting. Thus, the
statement was not hearsay and was not excludable. See People v Mesik (On Reconsideration),
285 Mich App 535, 540; 775 NW2d 857 (2009). We are of the same opinion with regard to
Hamilton’s statements describing the incident as a “bullshit lick” and indicating that he shot the
female victim. Again, the prosecutor did not introduce these statements to prove the truth of the
matters asserted therein. Rather, the prosecutor introduced the testimony to show the
individuals’ roles in the altercation and to put into context defendant’s own admission that he
was there and was “just shooting.” Accordingly, none of these statements constituted
impermissible hearsay. Defendant has failed to show that any error occurred with regard to the
admission of these statements. Accordingly, defendant’s claim fails.
V. NEWLY DISCOVERED EVIDENCE
Finally, defendant argues that the trial court erred by denying his motion for a new trial,
which was based on newly discovered evidence. Specifically, the motion asserted that
codefendants Young and Hamilton would testify that defendant was not involved in the murders.
We disagree. As noted, we review a trial court’s decision on a motion for a new trial for an
abuse of discretion, while its findings of fact are reviewed for clear error. People v Cress, 468
Mich 678, 691; 664 NW2d 174 (2003).
In order to obtain a new trial on the basis of newly discovered evidence, a defendant must
show the following: “(1) the evidence itself, not merely its materiality, was newly discovered;
(2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable
diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a
different result probable on retrial.” Id. at 692 (internal quotations omitted).
Here, the testimonies of Young and Hamilton are not newly discovered evidence. Rather,
their testimonies were merely newly available. This Court recently addressed the same issue
defendant now raises in People v Terrell, ___ Mich App ___; ___ NW2d ___ (2010). The Court
held:
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[W]hen a defendant knew or should have known that his codefendant could
provide exculpatory testimony, but does not obtain that testimony because the
codefendant invokes their privilege against self-incrimination, the codefendant’s
post-trial statements do not constitute newly discovered evidence, but merely
newly available evidence. [Id.]
By the time defendant’s trial started, Young and Hamilton had already pleaded guilty.
Accordingly, defendant knew or should have known that, since Young and Hamilton were
claiming responsibility for the crimes, they could have offered material testimony regarding
defendant’s role in the charged crimes. Defendant’s argument that Young and Hamilton could
have chosen to not testify, by claiming their rights against self-incrimination, is of no
consequence.7 See Terrell, ___ Mich App at ___ (slip op at 9-10). Accordingly, defendant
cannot meet the first element in the four-part test established in Cress, 468 Mich at 692, that the
evidence be “newly discovered.” The trial court did not abuse its discretion by denying
defendant’s request for a new trial.8 Defendant’s claim fails.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
7
We note that, although the plea agreement that Young and Hamilton entered into prevented the
prosecution from compelling them to testify against defendant, the agreement did not prevent
them from testifying on their own volition.
8
We also reject defendant’s related argument that defense counsel’s performance was deficient
for failing to discover the allegedly exculpatory testimonies of Hamilton and Young. Even
assuming counsel’s performance fell below the objective level of professional norms, defendant
cannot demonstrate prejudice. Overwhelming evidence supported defendant’s convictions and
Hamilton and Young’s testimonies would be inherently suspect, Terrell, ___ Mich App at ___.
Thus, there is no reasonable likelihood that but for counsel’s error the result of the proceedings
would have been different.
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