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UNPUBLISHED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 No. 09-000469-FH
09-000470-FH
MARCUS SHELDON BARNETT,
Defendant-Appellant.
Before: SHAPIRO, P.J., and FITZGERALD and BORRELLO, JJ.
SHAPIRO, J. (concurring).
I concur in the majority’s affirmance of defendant’s conviction. I write separately,
however, because I agree with defendant’s argument that, in People v Greene, 255 Mich App
426; 661 NW2d 616 (2003), this Court erroneously interpreted MCL 750.122(6).
Under MCL 755.122(3), a defendant may be convicted of witness tampering by
“discourag[ing] a person from testifying” only if he does so by “threat or intimidation.” Under
MCL 750.122(6), a person may be convicted without a finding of “threat or intimidation” if he
acts to “willfully impede, interfere with, prevent or obstruct . . . the ability of a witness” to
attend. In Greene, this Court held that a defendant guilty only of “discouraging” a witness
without any threat or intimidation, and so not guilty of a violation of subsection (1), could
nevertheless be convicted under subsection (6) for acting to discourage the witness without threat
or intimidation. I would reject the reasoning in Greene because it results in the conclusion that
the Legislature’s inclusion of subsection (6) was intended to wholly vitiate the “threat or
intimidation” requirement set forth in subsection (1) where the only action by the defendant is to
discourage a witness from appearing.
I agree, however, that defendant’s conviction in this case should be affirmed. Defendant
did not merely discourage the witness when he spoke with her, as was the case in Greene. Here,
defendant contacted a third party, one who bore substantial ill will towards the witness, and
attempted to arrange for this third party to physically intercept the witness outside the courthouse
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prior on the date of her testimony. Such an action does rise to the level of an “attempt to
willfully impede . . . prevent or obstruct the ability of a witness to attend.”1
/s/ Douglas B. Shapiro
1
I also note that, when speaking to the witness who was his former girlfriend, defendant made
reference to O.J. Simpson, which could certainly be read as a threat, although given that
defendant was not charged under MCL 750.122(3), it should not serve as the basis for his
conviction.
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