PEOPLE OF MI V MARCUS SHELDON BARNETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 3, 2011
Plaintiff-Appellee,
v
No. 295845
Kent Circuit Court
LC Nos. 09-000469-FH
09-000470-FH
MARCUS SHELDON BARNETT,
Defendant-Appellant.
Before: SHAPIRO, P.J., and FITZGERALD and BORRELLO, JJ.
PER CURIAM.
A jury convicted defendant of three counts of interfering with a witness in a criminal case
for which the maximum term of imprisonment for the violation is more than ten years, or for
which the violation is punishable by imprisonment for life or any terms of years, MCL
750.122(6); MCL 750.122(7)(b). The trial court sentenced defendant as an habitual offender,
fourth offense, MCL 769.12, to consecutive prison terms of 60 months to 20 years. Defendant
appeals as of right. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On September 14, 2008, defendant was charged in an unrelated matter with first-degree
home invasion arising from an incident that occurred on September 13, 2008, at the home of
Meagan Russow. A preliminary examination with regard to that charge was scheduled for
September 22, 2008. On September 21, 2008, defendant, who was being held at the Kent
County Correctional Facility, engaged in a recorded telephone conversation with his girlfriend,
Dezari Munjoy.1 During that conversation, defendant informed Munjoy that he would “be okay
if that chick don’t show up tomorrow, babe. You know that?” Defendant asked Munjoy to make
a three-way call to Russow. After Munjoy placed the call, defendant left the following message
on Russow’s answering machine:
1
Munjoy was at home during this telephone conversation.
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Hello Meagan. Hey this is me. I’m in jail. I’m calling you on the threeway. Check this out. Do not show up for court. And don’t tell everybody my
business. Don’t advertise this shit. Do not show up for court. You don’t show
up, they don’t have no case, they going to throw it out. So do not pull up with
that damn blue car, and f___ing advertise and come up there. Do not show up for
court. Do not attempt to be there. Go to work. Go to wherever you gotta go. Do
not be around. They cannot hurt you if you not around. Just go on to work. Do
not show up. You show up, I’m going to prison. And I aint’ trying to go there.
Today is my son’s birthday, 9-21-98. Thank you. I’m in jail for you. Do not
show up for court. Bye.
After the three-way call ended, defendant said to Munjoy:
I’m running my prelim. They ain’t got no evidence. And ain’t no mother f___er
gonna be there court. I’m coming home. Bam. You make sure a press it, and
keep it on. You keep that on, you keep that on there. You do what I ask you to
do. That’s all you need to do. . . . I need you to do this for me. . . . I’m telling
you what I need you to do from inside. I’m telling you what I need you to do.
Even if you have to sit outside in that f___ing court room, outside at f___in
Kentwood, you see that f___in broad pull up, you tell her to go, no, do not show
up. . . . This is my life. I’m trying not to make sure the bitch show up. You trying
to scare the mother f___er off and, and some brut shit. Your ass is gonna get me
f___ed up because she gonna press the situation. And I’m gonna be penalized
again. Listen to me. She cannot show up. That’s all I’m telling you.
Munjoy attended the September 22, 2008, preliminary examination, but Russow did not
appear. Because of Russow’s failure to appear, the trial court rescheduled the preliminary
examination for September 29, 2008.
A second recorded telephone conversation took place between defendant and Russow
while Russow was visiting defendant at the correctional facility on September 24, 2008. During
this conversation, defendant told Russow:
Listen. Now listen to this. My mamma told me to tell you this. You
don’t be at your house, go to work, be away. As long as they don’t put nothing
from my hand, from their hand, nothing, the case, no good. I can chill till
Monday, the 29th. If they don’t serve you nothing from now until the 21st, you go
away from your house, Castle Bluff, be gone. . . . Without you, listen, listen,
plaintiff, defendant, without you, there’s no case.
Defendant also accused Russow of having sexual relations with another man named Nicholas.
Additionally, defendant accused Russow of lying to the police about the home invasion charges
and told her that
You can’t go to court. Because you’ll be caught for lying. Because they
probably will, will go up to your job and find you and make you go to court, and
then get you for perjury for lying like I have. . . . So please listen to me. Court is
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Monday, do you know that? . . . They postponed my court date to Monday, the
29th, at 1. Be gone. Feel me. I will love you to death.
Defendant again accused Russow of being a liar and instructed her to
[W]rite me a letter today, saying you apologize for lying about the keys, lying
about I don’t live there, lying about I’m homeless, put that and make me
something I can read. Right when you get up get out of here, go somewhere,
don’t go to twenty, don’t’ go to, don’t go there. Listen to me, you got, if you do
go over there, check the mail, I’ve got a letter, so you can read it. Beyond that,
don’t be around there, because if they give you paperwork, it would be, a
subpoena is nothing without giving it to you. It don’t come in the mailbox. So
don’t worry about that. But if they see you . . . If it don’t go from theirs to yours,
don’t worry about it. Out of sight out of mind. Do you hear me? That’s all you
gotta worry about. I will love you for that. Because they already, last week is
gone. This week, you not there, they don’t come, there’s no case. You know
Anna Nicole, no, no, no um, no, Nicole Simpson Smith, no OJ Simpson. If she
come, see what I’m saying? It takes two to tango. It takes two, Nicholas and you.
See, without him . . . Without him it wouldn’t have been no problem
Russow did not appear for the rescheduled preliminary examination of September 29,
2008, and the home invasion charge against defendant was eventually dismissed.
The prosecutor later filed new criminal information charging defendant with three counts
of witness tempering under MCL 755.122(6), which provides that:
A person shall not willfully impede, interfere with, prevent, or obstruct or
attempt to willfully impede, interfere with, prevent, or obstruct the ability of a
witness to attend, testify, or provide information in or for a present or official
proceeding.
At trial, the primary evidence against defendant consisted of the two recorded telephone
conversations. The jury found defendant guilty on all three counts.
II. MCL 750.122(6) and People v Greene2
The witness tampering statute, MCL 750.122, identifies “four different categories of
witness tempering: bribery (subsection 1), threats or intimidation (subsection 3), interference
(subsection 6), and retaliation (subsection 8).” Greene, 255 Mich App at 624. To prove that a
defendant has violated MCL 750.122(6), the prosecutor must establish that the defendant
2
People v Greene, 255 Mich App 426; 661 NW2d 616(2003).
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(1) committed or attempted to commit (2) an act that did not consist of bribery,
threats or intimidation, or retaliation as defined in MCL 750.122 and applicable
case law, (3) but was any act or attempt that was done willfully (4) to impede,
interfere with, prevent, or obstruct (5) a witness’s ability (6) to attend, testify, or
provide in or for a present or future official proceeding (7) having the knowledge
or the reason to know that the person subjected to the interference could be a
witness at any official proceeding. In this last part of the definition, we use the
word interference to include all types of conduct proscribed in subsection 6.
[Greene, 255 Mich App at 442-443.]
“As long as the interference does not consist of bribery, threats or intimidation, or retaliation as
defined in MCL 750.122 and applicable case law, any act or attempt to impair the witness’s
capacity to attend, testify, or provide information in or for a present or future official proceeding
violates subsection 6.” Greene, 255 Mich App at 441. The Court in Greene concluded that the
evidence in that case was sufficient in that case to create a question of fact with regard to
whether the defendant’s appeals to a witness to not attend the preliminary examination
“constituted interference.” Id. at 446.
Defendant does not argue that the evidence was insufficient to support his convictions.
Rather, he argues that this Court in Greene erroneously interpreted MCL 750.122(6) to include
statements that are not bribes, intimidation, or threats because such an interpretation is
inconsistent with the common law offense of obstruction of justice. Inherent in this argument is
the premise that MCL 750.122 codified the common law offense of obstruction of justice.
However, as this Court noted in Greene, 255 Mich App at 438, “the precise statutory description
of the prohibited criminal conduct, not necessarily notions of witness tampering that existed at
common law, under other statutes, or even under other subsections of MCL 750.122, guides our
interpretation [of MCL 750.122(6)]. The Court also stated:
This Court, in People v Milstead, 250 Mich App 391, 406 n 9; 648 NW2d
648 (2002), and People v Sexton, 250 Mich App 211, 224 n 5; 646 NW2d 875
(2002), recently noted that, in enacting MCL 750.122(6), the Legislature codified
the common-law crime of obstruction of justice. Notably, that statement was
obiter dictum, and therefore lacks the force of law because the statute was not at
issue in Milstead or Sexton, which were related cases. See People v Higuera, 244
Mich App 429, 437; 625 NW2d 444 (2001). Additionally, we are not persuaded
that, contrary to the plain language in the statute but as Greene argues, MCL
750.122(6) follows any common-law approach to obstruction of justice that
would require threats, intimidation, or physical interference as elements of this
offense. [Greene, 255 Mich App at 438 n 6.]
Language set forth in a footnote of an opinion can constitute binding precedent if the language
creates a rule of law and is not merely dictum. MCR 7.215(J)(1). The language in the Greene
footnote was not dictum; rather, the footnote addressed an argument raised by the defendant
regarding the applicability of MCL 750.122(6) and was, therefore, necessary to the disposition of
the case. Thus, the language in the footnote constituted a rule of law. We note, nonetheless, that
we agree with the analysis in the footnote.
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III. THE CONSTITUTIONALITY OF MCL 750.122(6)
Defendant argues that MCL 750.122(6) is unconstitutionally overbroad and vague.
Specifically, he asserts that the statute is unconstitutionally vague and overbroad and that it
infringes upon protected speech; i.e., his legal right to prevent Russow from testifying at his
preliminary examination because he did not want her to commit perjury. Whether a statute is
constitutional is a question of law that this Court reviews de novo. Phillips v Mirac, Inc, 470
Mich 415, 422; 685 NW2d 174 (2004).
A statute is accorded a strong presumption of validity and this Court has a duty to
construe it as valid absent a clear showing of unconstitutionality. People v Jensen (On Remand),
231 Mich App 439, 444; 586 NW2d 748 (1998). As this Court stated in People v Vronko, 228
Mich App 649, 652; 579 NW2d 138 (1998):
A penal statute is unconstitutionally vague if (1) it does not provide fair notice of
the conduct proscribed, (2) it confers on the trier of fact unstructured and
unlimited discretion to determine whether an offense has been committed, or (3)
its coverage is overly broad and impinges on First Amendment Freedoms.
In order to pass constitutional muster and give fair notice, “a penal statute must define the
criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement’”
People v Lino, 447 Mich 567, 575-576; 572 NW2d 434 (1994), quoting Kolender v Lawson, 461
US 352, 357; 103 S Ct 1855; 75 L.Ed.2d 903 (1983); People v White, 212 Mich App 298, 312;
536 NW2d 876 (1995). The statute cannot use terms that require persons of ordinary intelligence
to guess at its meaning and differ regarding its application. Id.; People v Perez-DeLeon, 224
Mich App 43, 46; 568 NW2d 324 (1997). A statute is sufficiently definite if its meaning can
fairly be ascertained by reference to judicial interpretations, the common law, dictionaries,
treatises, or the commonly accepted meanings of words. Vronko, supra at 653.
The overbreadth doctrine is primarily applied to First Amendment cases where a statute
prohibits constitutionally protected conduct. Jenson (On Remand), supra. “The overbreadth of a
statute must be real and substantial; it must be judged in relation to the legitimate sweep of the
statute where conduct and not merely speech is involved.” Id.
It is not plainly apparent that MCL 750.122(6) is vague or unconstitutionally overbroad.
The statute at issue deters a person from tempering with a witness. Specifically, MCL
750.122(6) deters a person from willfully impeding, interfering with, preventing, or obstructing a
witness’s ability to attend, testify, or provide information for a present or future official
proceeding. “Willful” and “impede,” “interfere” “prevent” and “obstruct” are sufficiently
specific terms with commonly understood meanings such that enforcement of the statute will not
be arbitrary or discriminatory. Further, because the statute requires that a defendant willfully
impede, interfere, prevent, or obstruct a witness’s ability to attend, testify, or provide information
for a present or future official proceeding, the conduct prohibited is clearly stated. Defendant
has not established that the statute is unconstitutionally vague.
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Nor has defendant established that the statute is unconstitutionally overbroad as applied
to his conduct. The statute prohibits conduct in the form of acts which impede, interfere with,
prevent, or obstruct a witness’s ability to attend, testify, or provide in or for a present or future
official proceeding. It is not plainly apparent that the statute infringes upon protected conduct, or
that defendant’s particular conduct was constitutionally protected. From the evidence presented
at trial, defendant told Russow not to show up for the preliminary examination and not to testify.
He told her to avoid service of the subpoena. He also told Munjoy to be at the courthouse and to
deter Russow from appearing in court if she showed up. This conduct is clearly prohibited by
the explicit terms of MCL 750.122(6). The statute is neither unconstitutionally vague nor
overbroad as to violate any free speech protections.3
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Stephen L. Borrello
3
If the true purpose of defendant’s statements was to prevent Russow from committing perjury
as he purports, he could have simply instructed Russow to tell the truth during the preliminary
examination.
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