PEOPLE OF MI V DEONTAE TRAVOHN DAVIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 17, 2011
Plaintiff-Appellee,
v
No. 290131
Saginaw Circuit Court
LC No. 08-030280-FC
DEONTAE TRAVOHN DAVIS,
Defendant-Appellant.
ON REMAND
Before: FORT HOOD, P.J., and BORRELLO and STEPHENS, JJ.
PER CURIAM.
This Court previously issued an unpublished opinion in this case, affirming defendant’s
convictions and sentences for one count of conspiracy to commit first-degree premeditated
murder, MCL 750.157a; MCL 750.316, seven counts of attempted murder, MCL 750.91, one
count of placing offensive or injurious substances in or near real or personal property, MCL
750.209(1)(b), one count of conspiracy to commit arson of a dwelling house, MCL 750.157a;
MCL 750.72, and one count of arson of a dwelling house, MCL 750.72. People v Davis,
unpublished opinion per curiam of the Court of Appeals, issued June 22, 2010 (Docket No.
290131). Defendant sought leave to appeal with our Supreme Court, and our Supreme Court
remanded to this Court “for consideration of an issue raised by the defendant but not addressed
in that court’s opinion: whether the circuit court erroneously allowed the statement of the
defendant’s co-defendant, Caprice Mack, to be introduced into evidence through the preliminary
examination testimony of Travis Crowley.” People v Davis, ___ Mich ___; 790 NW2d 401
(2010). For the reasons set forth in this opinion, we affirm.
I. FACTS
The facts of this case were articulated in this Court’s previous opinion:
This case arises from events that occurred on December 10, 2007, in
Saginaw, Michigan. According to the testimony of witnesses, including that of
Darell Hewitt, who agreed to testify “truthfully and completely . . . about the
events that occurred December 10th, 2007,” he, defendant, Caprice Mack, Dquan
Favorite, Arnell Johnson, Jeremy Williamson and Deshawn Christopher were
drinking and playing games at a house on Sanford Street when Tonya Wilson’s
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car was burned. Travis Crowley testified that his girlfriend, April Johnson, called
him and told him that her mom’s car “got blew up.” Crowley said that Mack got
on the phone and told him that “some boys had blew up Tonya[’s] car, so . . . they
said that they was gonna take care of it.”
According to Hewitt, after Wilson’s car burned, defendant and Favorite
discussed retaliating against persons at a duplex located at 1622 Farwell Street in
Saginaw because they thought Ronell Hinley had burned the car. Hewitt said that
the group planned “to set the [Farwell] car on fire” and “to shoot anybody that
come [sic] out of the house.” Hewitt testified, however, that there was no
agreement to set fire to the house or to kill anyone.
The evidence indicated that defendant, Hewitt, Favorite, Mack, Johnson
and Williamson went to the house at Farwell to set the car on fire, but they failed
to successfully do so. The men returned to the house on Sanford and then
defendant, Hewitt, Favorite, Mack and Christopher made a second trip to the
Farwell house. Defendant and Mack went into the garage with containers of
gasoline and then ran out. This time, the car in the Farwell house garage was set
on fire. There was evidence that Hewitt and Favorite had guns and that as the fire
at the Farwell house spread from the garage to the house, people began to leave
the house, and Hewitt and Favorite shot at the people as they left.
Defendant, Favorite, and Mack, who were all tried together, moved for a
directed verdict on all counts. Defendant argued that Hewitt’s testimony, in a
light most favorable to the prosecutor, showed that there was a plan to burn a car
in the Farwell house’s garage. Defendant argued that this was insufficient to
support a charge of attempted murder or conspiracy to commit first-degree
murder. The trial court, concluding that the combination of starting a house on
fire at 2:00 a.m. and shooting at people as they exited the house “establish[ed]
evidence of attempt to murder,” denied the motion for directed verdict as to all
three defendants. On July 2, 2009, defendant moved for a new trial on the basis
of newly discovered evidence, the evidence being an affidavit, purportedly from
Hewitt, wherein Hewitt claims that he lied at trial to save himself, and that
defendant “is innocent of all charges.” The trial court denied the motion without
an evidentiary hearing, and this appeal ensued. [Davis, unpublished opinion, pp
1-2 (footnotes omitted).]
The issue on remand concerns Mack’s statement to Crowley during their telephone
conversation, and the admission of Mack’s statement through Crowley’s testimony. Crowley
testified that he was talking on the phone to his girlfriend, April Johnson, about the burning of
her mother’s car. Mack got on the phone and told Crowley that “they” were planning to retaliate
with bombs. Crowley testified at the preliminary examination:
Q. Okay. When you had that conversation with your girl earlier, where
she told you what had happened, did anybody else get on the phone with you?
A. Yes, sir.
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Q. Who got on the phone?
A. Sean.
Q. And who is that, what’s his full name?
A. Caprice.
Q. Okay. Caprice Mack?
A. Yes, sir.
*
*
*
Q. Did he tell you anything about what had happened or what they were
going do [sic]?
A. Yes, sir, he told me that some boys in that neighborhood had come and
blew up Tonya’s car, so—
*
*
*
Q. Go ahead, Judge says you can answer. What did Mr.—what did Sean
say?
A. Some boys had blew up Tonya car, so they was gonna, ah, they said
that they was gonna take care of it, and they—
*
*
*
Q. What did he say?
A. When he got on the phone, he said, “Man, Bro, some niggers done
blew up mom’s car, but yeah, we got these bombs, they gonna get ’em back, we
gonna take care of it.”
Pursuant to the directive of our Supreme Court, we address whether the circuit court
erroneously allowed the statement of Mack to be introduced into evidence through the
preliminary examination testimony of Crowley.
II. ANALYSIS
Defendant raises two bases of alleged error in the admission of Mack’s out-of-court
statement through Crowley’s testimony. He claims that the admission of the statement violated
his Sixth Amendment right of confrontation, and that the statement was inadmissible hearsay.
Because defendant did not preserve this issue for appellate review by raising it in the trial
court, this Court’s review is for plain error affecting defendant’s substantial rights. People v
Pipes, 475 Mich 267, 274-279; 715 NW2d 290 (2006), citing People v Carines, 460 Mich 750,
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763-764; 597 NW2d 130 (1999). Under the plain error rule, defendant must establish that (1)
error occurred, (2) the error was plain, that is, clear or obvious, and (3) the plain error affected a
substantial right of the defendant. Pipes, 475 Mich at 279, citing Carines, 460 Mich at 763-764.
Reversal is warranted only when plain error results in the conviction of an actually innocent
defendant or seriously affected the fairness, integrity or public reputation of the judicial
proceedings, independent of defendant’s guilt or innocence. Id.
A. CONSTITUTIONAL ERROR (RIGHT OF CONFRONTATION)
The Confrontation Clause of the Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to confront witnesses who testify against them. US
Const, Am VI. Michigan’s constitution guarantees the same right. Const 1963, art 1, § 20. The
right of confrontation has been interpreted to prohibit the admission of out-of-court testimonial
statements unless the accused has had a prior opportunity to cross-examine the declarant, and the
declarant is unavailable. Crawford v Washington, 541 US 36, 53-54, 59, 68; 124 S Ct 1354; 158
L Ed 2d 177 (2004); People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005).
Only out-of-court statements that are testimonial implicate the Confrontation Clause.
Crawford, 541 US at 50-52, 61, 68; People v Taylor, 482 Mich 368, 374; 759 NW2d 361 (2008).
A testimonial statement is “a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 US at 51. A statement is testimonial if its
“primary purpose” or the questioning that elicits it “is to establish or prove past events
potentially relevant to later criminal prosecution.” Davis v Washington, 547 US 813, 814; 126 S
Ct 2266; 165 L Ed 2d 224 (2006). Stated differently, statements are testimonial if they are made
under circumstances that would lead an objective declarant reasonably to believe that the
statement would be available for use in a later trial or criminal prosecution. Id. at 821-822;
Taylor, 482 Mich at 377-378. The rationale for limiting the Confrontation Clause’s application
to testimonial statements is that only testimonial statements cause the declarant to be a “witness”
within the meaning of the Confrontation Clause. Davis, 547 US at 821. “It is the testimonial
character of a statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id.
The Supreme Court in Crawford did not attempt “to spell out a comprehensive definition
of ‘testimonial[,]’” but the Court recognized that “a casual remark to an acquaintance” is not a
testimonial statement in the same way that an accuser making a formal statement to a
government officer is. Crawford, 541 US at 51, 68. This Court similarly held in People v
Bauder, 269 Mich App 174, 180-182; 712 NW2d 506 (2005), that a victim’s statements to
friends, coworkers, and the defendant’s relatives shortly before her death were not testimonial.
In Taylor, our Supreme Court applied Crawford and concluded that inculpatory
statements of a codefendant to an acquaintance were nontestimonial and admissible through the
acquaintance’s testimony. Taylor, 482 Mich at 378, 380. In that case, the three defendants—
Marlon Scarber, Eric Taylor, and Robert King—were tried together on charges arising from a
kidnapping and murder. One of the prosecution’s main witnesses was Troy Ervin, an
acquaintance of all three defendants. Id. at 371. Ervin testified that Scarber phoned him and
stated that he (Scarber) and the other defendants had kidnapped the victim and were holding him
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at a house owned by Ervin’s sister. In a later phone call, Scarber told Ervin that King had fatally
shot the victim. Id. at 371, 374.
On appeal, King argued that the admission of Scarber’s statements through Ervin’s
testimony violated King’s right of confrontation and were inadmissible hearsay. This Court
disagreed and affirmed defendant’s convictions. Our Supreme Court affirmed. Relying on
Crawford and Davis, the Court held that “[b]ecause the hearsay statements in this case were
nontestimonial, they do not implicate the Confrontation Clause . . . and their admissibility is
governed solely by MRE 804(b)(3).” Id. at 374. The Court reasoned:
Scarber’s statements to Ervin were nontestimonial because they were made
informally to an acquaintance, not during a police interrogation or other formal
proceeding, see Crawford, supra at 68, or under circumstances indicating that
their “primary purpose” was to “establish or prove past events potentially relevant
to later criminal prosecution,” Davis, supra at 822. Accordingly the admissibility
of the statements in this case is governed solely by MRE 804(b)(3).” [Taylor, 482
Mich at 378.]
Similarly, in People v Bennett, ___ Mich App ___; ___ NW2d ___ (Docket Nos. 286960,
287768, November 2, 2010), this Court rejected the defendant’s Confrontation Clause challenge
to the admission of an acquaintance’s testimony. Jessica Fritz, the codefendant’s friend, testified
that after the victim’s murder, the codefendant told her that the defendant “did it.” This Court
relied on Taylor and found no error:
[O]ur Supreme Court has ruled that a statement made to an acquaintance, outside
of a formal proceeding, is a nontestimonial statement, and may be admitted as
substantive evidence at trial pursuant to MRE 804(b)(3). [The defendant] argues
that Fritz’s testimony that [the codefendant] told her that [the defendant] killed the
victim violated his right of confrontation. [The codefendant]’s statements were
made to Fritz, a friend, and not within a formal proceeding. Thus, they were
nontestimonial and do not implicate the confrontation clause. [Bennett, ___ Mich
App at ___, slip op p 9 (citations omitted).]
Likewise, this Court rejected the defendant’s challenge to the testimony of the codefendant’s
cousin, that the codefendant told the cousin that the defendant was threatening to kill the victim:
“Because this statement was to an acquaintance and there is no indication that it was made for
the purposes of identifying the perpetrator of a crime, the statement was nontestimonial and did
not implicate the Confrontation Clause.” Id., citing Taylor, 482 Mich at 378.
In the present case, Mack’s statement was not testimonial and therefore its admission at
trial did not violate defendant’s confrontation rights. Mack’s statement was made to an
acquaintance over the telephone. He took the phone from Johnson during her call with her
boyfriend, Crowley, and told Crowley that he and others planned to retaliate against persons who
they believed had burned Wilson’s car. Mack stated that “we got these bombs, they gonna get
’em back” and “they was gonna take care of it.” The statement was not a solemn declaration for
the purpose of establishing a past fact. And the informal circumstances under which the
statement was made do not suggest that Mack made the statement in contemplation of later
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criminal prosecution. See Bauder, 269 Mich App at 180-182. Because the statement was not
testimonial, the Confrontation Clause is not implicated. Taylor, 482 Mich at 378. Therefore,
defendant fails to establish error in the admission of Mack’s statement through Crowley’s
preliminary examination testimony.
B. EVIDENTIARY ERROR (HEARSAY)
The rules of evidence pertaining to hearsay also govern the admissibility of Mack’s
statement to Crowley. “Hearsay” is an out-of-court statement offered in evidence to prove the
truth of the matter asserted, MRE 801(c); it is generally not admissible, MRE 802. People v
Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). A statement of a coconspirator is not
hearsay if it “is offered against a party and is a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy on independent proof of the conspiracy.” People v
Martin, 271 Mich App 280, 316; 721 NW2d 815 (2006), quoting MRE 801(d)(2)(E). For
admission of the statement under MRE 801(d)(2)(E), the proponent of the statement must
establish by a preponderance of the evidence that a conspiracy existed, that the statement was
made during the course of the conspiracy, and that the statement furthered the conspiracy.
Martin, 271 Mich App at 316-317.
There is evidence that Mack’s statement to Crowley furthered the conspiracy. Mack was
with Johnson when Johnson told Crowley about her mother’s car, and Mack got on the phone to
tell Crowley that he and the others planned to “get ’em back” and “take care of it.” The
statement was made shortly before the conspirators executed their plan. Arguably, Mack’s
statement to Crowley furthered the conspiracy inasmuch as it may have induced Crowley not to
report the burned car to the police, or to refrain from retaliating himself. In this respect, Mack’s
statement “promote[d] or facilitate[d] the accomplishment of the illegal objective” of the
conspiracy, which is all that is required. Martin, 271 Mich App at 317. The fact that Crowley
was not a conspirator is irrelevant, because the statement need not have been made to another
conspirator in order to qualify for admission.1 Id. MRE 801(d)(2)(E) requires that the statement
be a statement by a coconspirator of a party, which in this case it was, under the prosecution’s
theory that Mack and defendant were coconspirators. On this record, the admission of Mack’s
statement against defendant as a statement by a coconspirator cannot be considered plain error.
1
At oral argument, defense counsel suggested that Mack’s statement was inadmissible under
MRE 801(d)(2)(E) because Crowley was not a coconspirator. Counsel stressed that Crowley
was never charged in this case and was an innocent bystander.
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Affirmed.
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
/s/ Cynthia Diane Stephens
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