PEOPLE OF MI V KEQUIEANTIA RAMONE MONTGOMERY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 12, 2011
Plaintiff-Appellee,
V
KEQUIEANTIA RAMONE MONTGOMERY,
No. 295358
Oakland Circuit Court
LC No. 2009-227031-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and JANSEN and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of two counts of second-degree
murder, MCL 750.317, and two counts of possession of a firearm during the commission of a
felony, MCL 750.227b. We affirm.
This case arose from a double homicide that took place in Pontiac. The victims were
found dead in the front seats of a parked vehicle. Each victim was shot once in the head. Two
spent .22 caliber shell casings were found in the vehicle, one on the driver’s side and one on the
passenger’s side of the vehicle. It was determined that both shell casings were fired from the
same gun. Defendant admitted to the police that he fired shots into the vehicle, but indicated that
he did so in self-defense after the passenger pulled out a gun and shot at him while defendant
was in the back seat of the vehicle. According to defendant, it was after he jumped out of the
vehicle that he fired shots into the car, dropped his .22 caliber gun, and took off running. He had
believed that he was going to be robbed by the victims. The police investigation failed to reveal
any evidence that defendant was shot at while he was in the back seat of the vehicle, i.e., there
were no bullet holes inside the vehicle or the seat cushions, and the windows were not broken.
Defendant’s gun was never recovered.
Defendant was charged with two counts of first-degree murder, on alternative theories of
premeditation and felony murder predicated on robbery or attempted robbery. See People v
Bigelow, 229 Mich App 218, 220-221; 581 NW2d 744 (1998). The prosecution’s theory of the
case was that defendant shot the victims in the course of a drug transaction and robbery or
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attempted robbery. Defendant presented a theory of self-defense. During the course of the trial,
a witness named Johnaquin Keys was called by the prosecution. Outside the presence of the
jury, Keys invoked his Fifth Amendment privilege against self-incrimination.
Then, during cross examination of Detective Jeff Buchmann, of the Pontiac Police
Department, Buchmann was asked if he interviewed Keys, and Buchmann replied that he did
not, but that Sergeant Hunt interviewed him. On redirect examination, Buchmann was
questioned about Keys as follows:
Q.
Along with, Anthony, this Johnaquin Keys, the one [defense
counsel] talked about. I want to talk about him a little bit, Mr. Keys. You spoke
with Mr. Keys; did you not?
A.
Yes, I did.
Q.
Give you some information about potential, a robbery? Not you, I
mean Sergeant Todd did; yes?
A.
Yes, Hunt.
Q.
Sergeant Hunt?
A.
Sergeant Hunt interviewed him and then relayed the information
that he got to me.
Q.
And your investigation from that discussing with Mr. Keys talking
to that witness indicated a potential robbery; yes?
A.
Yes.
Q.
Do robberies like this sometimes go bad?
A.
Oh, yes.
Sergeant Hunt did not testify at the trial. During closing arguments, the prosecution referenced
the testimony of Detective Buchmann, including that through his investigation it was determined
that “[i]t was a plan to rob.” The jury returned a verdict finding defendant guilty of two counts
of second-degree murder and two counts of felony firearm.
On appeal, defendant argues that his trial counsel’s failure to object to the hearsay
testimony about an alleged plan to rob constituted ineffective assistance of counsel. In the
alternative, defendant argues that the admission of this hearsay testimony constituted plain error
affecting his substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999).
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To establish a claim of ineffective assistance of counsel a defendant must show that
counsel’s performance was below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000); People v Stanaway,
446 Mich 643, 687-688; 521 NW2d 557 (1994). In showing that counsel’s representation was
deficient, a defendant must overcome a strong presumption that counsel’s performance
constituted sound trial strategy under the circumstances. Id. at 687.
We agree with defendant that his counsel’s failure to object to the challenged testimony
constituted performance below an objective standard of reasonableness. To the extent that the
declarant was implicating defendant in criminal conduct, such communication was testimonial in
character and thus inadmissible even if some hearsay exception applied. See Crawford v
Washington, 541 US 36, 53-54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). But a hearsay
exception did not apply. Detective Buchmann’s testimonial account of what Sergeant Hunt had
told him that Mr. Keys had told Sergeant Hunt is clearly not admissible under any hearsay
exception. See MRE 803-805. Further, the presumption that counsel’s failure to object
constituted sound trial strategy is defeated. The failure to object to inadmissible motive
testimony did not constitute sound trial strategy. Nevertheless, defendant has not established the
requisite prejudice. He has not shown there is a reasonable probability that, but for counsel’s
failure to object to the hearsay testimony, the result of the proceedings would have been
different.
Defendant was charged with two counts of first-degree murder, on alternate theories of
premeditation and felony murder predicated on robbery or attempted robbery. However, the jury
rejected both of these charges and, therefore, the evidence of robbery or attempted robbery. The
felony murder charge was the only charge that put the question of robbery at issue and defendant
was not convicted on that charge. Defendant argues, however, that the inadmissible hearsay
testimony also supplied the motive for the murders—robbery.
It is true that, while not necessarily an element of murder, proof of motive may be
relevant to establish the requisite intent of the crime. People v Herndon, 246 Mich App 371,
412-413; 633 NW2d 376 (2001). Here, defendant was found guilty of two counts of the lesser
included offense of second-degree murder. The elements of second-degree murder are: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or
excuse. People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868 (1998). “Malice is defined as
the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and
willful disregard of the likelihood that the natural tendency of such behavior is to cause death or
great bodily harm.” Id. at 464.
In this case, defendant admitted that he fired shots into the victims’ vehicle, at very close
range, and in the direction of both victims. Clearly, the first three elements of second-degree
murder were established even without any reliance on the inadmissible hearsay testimony, i.e.,
the requisite intent—malice—was established without the “motive testimony.” And although
defendant argued that he fired the shots in self-defense, this theory was rejected by the jury, just
as they rejected the prosecution’s robbery theory. Thus, there is no reasonable probability that,
but for counsel’s error, the result of the proceedings would have been different.
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Further, even if we concluded that the admission of the hearsay testimony constituted
plain error, we would not reverse defendant’s convictions because we are not persuaded that he
is actually innocent or that the error seriously affected the fairness, integrity, or public reputation
of judicial proceedings. See Carines, 460 Mich at 763.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
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