received by msc 3/1/2019 5:00:59 pm · 2019-08-13 · cross-examination by mr. piazza 5 re-direct...
TRANSCRIPT
STATE OF MICHIGAN
IN THE MICHIGAN SUPREME COURT ____________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
TRAVIS TRAVON SAMMONS,
Defendant-Appellant. /
Supreme Court No. 156189
Court of Appeals No. 332190
Saginaw County Circuit Court No. 15-041848-FC
Nathan Jeffrey Collison (P76031) SAGINAW COUNTY PROSECUTOR’S OFFICE 111 South Michigan Avenue Saginaw, Michigan 48602 989.790.5330 [email protected]
Attorneys for Plaintiff-Appellee
Gaëtan Gerville-Réache (P68718) Ashley G. Chrysler (P80263) Nicole A. Samuel (P83134) WARNER NORCROSS & JUDD LLP 900 Fifth Third Center 111 Lyon Street, N.W. Grand Rapids, Michigan 49503-2487 616.752.2000 [email protected]
Attorneys for Defendant-Appellant
APPELLANT’S APPENDIX
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APPENDIX TABLE OF CONTENTS
i
Designation of Entry Appendix Page No.
09/25/2015 Preliminary Exam Excerpts
Testimony of Tyler Poirier Testimony of Dyjuan Jones Testimony of David Rivard
1a
4a 7a 21a
10/26/2015 Preliminary Exam Excerpts
Testimony of David Rivard
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25a
01/21/2016 Trial Transcript Excerpts
Testimony of Tyler Poirier Testimony of Dyjuan Jones Testimony of Rosei Watkins
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31a 35a 41a
01/26/2016 Trial Transcript Excerpts
Testimony of David Rivard
44a
47a
01/15/2016 Trial Court Opinion and Order 50a
07/06/2017 Court of Appeals Opinion 61a
11/21/2018 Supreme Court Order 73a
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STATE OF MICHIGAN
IN THE 70th JUDICIAL DISTRICT COURT FOR SAGINAW COUNTY
TBB PEOPLE or THE STATE or MICHIGAN
vs.
DOMINIQUE ARNETT RAMSEY,
Defendant/
Case No. 15-003348-l'Y
1 S- oL/1 ?L()-Fc
8 TBB PEOPLE or THE STATE or MICHIGAN
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vs. Case No. 15-003349-l'Y
J r;--ol/Jf~f;~ . ~.,,.. .
a, V" C') ;;,.(. (/) -c:: -;;t;: :z:. % C>Cf) '§. ~ '"1j O :.'' - ""' c:c;::.;>.:. o-....\ n' -;r-. (J"\ 0 r-
PRELIMINARY EXAMINATION -< :;., ; C:. rn 0 ..,;. r- -:z. C, ,- (.") .....\ ""'O _.\ rn r- rn :;3 ....,<.
TRAVIS TR.AVON SAMMONS,
Defendant/
VOLUME I or I I ;O fT'\ :;!: •
BEFORE THE HONORABLE A.T. FRANK, DISTJci:r~; ~ SAGINAW, MICHIGAN - Friday, SeptemberKI(;, 2015
APPEARANCES:
For the People: DANIEL G. VAN NORMAN (P-34222) Assistant Prosecuting Attorney 111 S. Michigan Avenue Saginaw, Michigan 48602 (989) 790-5330
MARK J. GAERTNER (P-33773) Assistant Prosecuting Attorney 111 S. Michigan Avenue Saginaw, Michigan 48602 (989) 790-5330
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APPEARANCES:
3 For the Defendant: ALAN A. CRAWFORD (P-74474) 120 N. Michigan Avenue Ste. 303
4 Saginaw, Michigan 48602 ( 989) 355-1717
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6 For the Defendant: JAMES F. PIAZZA (P-30172) 903 Court Street
7 Saginaw, Michigan 48602 (989) 791-1813
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20 RECORDED AND
21 TRANSCRIBED BY: PATRICIA A. WISE CER 6066 Certified Electronic Recorder
22 111 s. Michigan Avenue Saginaw, Michigan 48602
23 (989) 790-5375
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TABLE OF CONTENTS
WITNESSES: PEOPLE 3 TYLER POIRIER
Direct Examination by Mr. Van Norman 4 Cross-Examination by Mr. Crawford
Cross-Examination by Mr. Piazza 5 Re-Direct Examination by Mr. Van Norman
Recross-Examination by Mr. Crawford 6 DYJUAN JONES
Direct Examination by Mr. Gaertner 7 Cross-Examination by Mr. Crawford
Cross-Examination by Mr. Piazza 8 BRADLEY HOLP
Direct Examination by Mr. Van Norman 9 Cross-Examination by Mr. Crawford
Cross-Examination by Mr. Piazza 10 DAVID RIVARD
Direct Examination by Mr. Gaertner 11
12 WITNESSES: DEFENSE
13 None
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16 EXHIBITS:
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PX#l - AUTOPSY REPORT
PX#2 - CERT. CONV. DOMINIQUE RAMSEY
PX#3 - CERT. CONV. TRAVIS SAMMONS
PX#4 - CELLPHONE RECORDS
PX#S - CD SECURITY CAMERAS
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IDENTIFIED:
· PAGE:
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Wanna direct your attention to the afternoon hours of June
21st of this year, were you on duty at that point and time?
Yes sir.
And your shift was when to when?
It would have been 6:00 in the morning to 2:00 p.m.
So, directing your attention to about 1:15, 1:30 that neck of
the woods, you were on duty and on patrol?
Yes sir, I was.
And, where you on patrol if you recall?
At that time I was preceding northbound on Dixie Highway near
the area of Dixie and Sun Valley.
Did you have occasion at that point and time or at some point
and time during that period to respond to a traffic call?
I was I did make a traffic stop at Dixie and Gretchen
where I notice a vehicle at Dixie and Sun Valley traveling
southbound on Dixie Highway.
Did you have any information from any source prior to
effecting that stop?
Yes sir, Saginaw County Central Dispatch advised that there
was a --
MR. PIAZZA: Objection, Your Honor, hearsay.
MR. VAN NORMAN: It's not being offered for the
truth of the matter Your Honor.
MR. PIAZZA: Then it's irrelevant for whatever it's
been offered for, in People v. Wilkins 408 Michigan 69 (1980)
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case says dispatcher's things as hearsay and it's irrelevant,
he can testify he received a dispatched and then preceded to
doing whatever he did afterwards. But, the content of the
dispatch is inadmissible.
MR. CRAWFORD: I'd join in that Your Honor.
THE COURT: Sustain, I think a little frame work
has been established, sustain the object.
MR. VAN NORMAN: Thank you.
THE COURT: Thank you.
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MR.
Subsequent, to receiving that dispatch, what if anything did
you do?
Sorry, I don't understand your question?
Subsequent to receiving the dispatch did you in fact effect a
traffic stop?
Yes sir, I did.
And, what -- what if anything did you observe with respect to
the vehicle that caused you to make the traffic stop?
Well the vehicle was described to me --
MR. PIAZZA: Objection, Your Honor it's hearsay.
VAN NORMAN:
Can't tell me what they said?
-- Okay.
Did you observe anything other than what you heard in the
dispatch?
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1 THE COURT: Absolutely.
2 MR. PIAZZA: Thank you, nothing further.
3 THE COURT: Any Re-Direct?
4 MR. VAN NORMAN: Just a couple, Your Honor.
5 REDIRECT EXAMINATION
6 BY MR. VAN NORMAN:
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Officer, just so -- about how much elapsed between the time
you received the dispatch and the time you effected this
traffic stop?
I think it was approximately 11 minutes or so.
And with a -- the driver Mr. Ramsey, did you recall what he
was wearing at that point and time?
I remember -- all I remember at this point, is he was wearing
a white tee shirt.
MR. VAN NORMAN: Thank you, that's all I have.
16 RECROSS EXAMINATION
17 BY MR. CRAWFORD:
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Roughly, what time did you see the Jeep -- what time did you
see the Jeep while you were on patrol?
I don't know an exact time; I mean bout maybe a minute or two
before I conducted the stop.
Okay and Mr. Ramsey did tell you where he was coming from
correct?
He -- yes, he did.
And he told you he was coming from his cousin's house at
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DYJUAN JONES
(At 2:08 p.m., sworn as a witness, testified as follows)
4 DIRECT EXAMINATION
5 BY MR. GAERTNER:
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Good afternoon, could you tell us your full name and spell
your first name?
DyJuan, D-Y-J-U-A-N DaShawn Devon Jones.
All right Mr. Jones how old are you?
17.
And, who's your mother?
Felicia Little.
And is she here at the courthouse today also?
Yes sir.
Mr. Jones, I'd like to have you remember back to Father's
Day, June 21st of this year, do you remember that day?
Yes sir.
Were you in a vehicle with your mother on that day?
Yes sir.
Were you in the vicinity of Cumberland in the City of Saginaw
on that day?
Yes sir.
Did you hear and observe something that day?
I heard what sounded like firecrackers.
All right and did you get -- did you look in the direction of
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where you heard the noise?
No cause it was right next to me cause I was sitting in the
backseat, I don't sit in the front.
All right and did you see where the noise came from?
Came from my left side.
And did you see anything involving people in a vehicle at
that time?
I seen a vehicle, I'm not sure about -- I didn't even get a
good description on the people.
All right, but do you remember seeing a vehicle where the
noise came from?
Yes sir.
All right, can you describe what the vehicle looked like?
It's a gray Jeep.
All right and are you familiar with what kind of a Jeep it
was?
No sir.
There is many different models?
No sir.
And you call it gray?
Yes
Yes or no?
-- Yes sir.
Was it dark or light in color?
Light.
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Did you see anybody in the Jeep or outside of the Jeep?
I just seen someone in it I wasn't paying attention to who
was outside of it.
All right and the person that was in the Jeep could you tell
the color of their skin?
African American.
All right, Black?
Yes.
Could you tell what that person was wearing?
No sir.
Was there another person inside or outside the Jeep?
It was outside.
All right and could you tell me what the skin color of that
person was?
Black.
And could you tell what that person was wearing?
He was -- he was kind of light skinned but he had on a big
white shirt.
Two Black males, both were males not woman?
Yes sir.
Both had white shirts on?
Yes sir.
Or some duration of the color of white?
Yes sir.
Did you see anybody with a gun?
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I seen the gun, I can't identify the person who was really.
Did one of the two have a gun or did both have a gun?
One, because the driver was still in the car.
All right, between the driver and the other person, who had
the gun?
The passenger.
Passenger, all right, I know these may seem to be silly
questions --
That's okay.
-- but I have to be real precise with the questions, you
understand that?
Yes sir.
I wasn't there you're saying you were, so I have to be real
precise about it, understand?
Yes sir.
All right, did you see the person with the gun do anything
with it?
I heard firecrackers and I seen a gun so obviously he was
shooting.
All right, did you see him shooting?
Yes sir.
All right, tell us what you saw as far as the gun being shot?
All I seen was the Hispanic man walking, because we were
driving from Church and it's long row from Cumberland to the
light and I seen a Hispanic man walking from the store. And,
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as we hit over the tracks all I seen is a African American
man get out the car shoot three times and I guess jammed and
the Hispanic male was kind of like rolling to try to get away
from it, but he was still walking and after that like 5
like not even 5 seconds, he just -- the gun un-jammed I guess
and he shot some more.
You saw that?
Yes sir.
The time that you saw the man with the gun shooting, where
was the driver of the vehicle?
He was still in the car.
St~ll in the car?
Yes sir, he was a heavy set man.
Pardon me?
Heavy set.
Okay, did you see anything else involved the shooting?
No sir.
To the best of your recollections about how much time did
this take from when you first heard the noise that you
described as firecrackers to the time --
No less than a minute.
less than a minute?
Yes sir.
Did you see where the Jeep went, if it went anywhere?
We were coming on CUmberland so they were going the opposite
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way .
They went the opposite way?
Right.
Were both of the Black men in the vehicle?
I'm not sure.
You're not sure, but you saw the vehicle go by?
Yes sir.
And when it went by do you remember if it was driving at a
slow rate of speed?
Oh no they were going at least 60 -- at least 60, 70.
After they left did you stay in the area?
No, we sped off because we didn't want them to at least see
us but then we turned around because we didn't want them to
see us but then we turned around because my Mom is a Nurse so
she had to at least check for the pulse.
All right, so you went back?
Yes sir.
And when you went back did you get out of your vehicle?
Yes.
Your mother's vehicle?
Yes sir.
Did you do anything?
Well, it was -- one of .my friends were behind and we both
went to sec and we did Criminal Justice, so the first thing
we did is count the shell casing.
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All right, you saw them, you counted them?
Yes sir.
How many did you count?
At least 11.
You said your Mother's a Nurse and she got out to check a
pulse; did you see her approach the victim?
Yes sir.
The person that you saw shot?
I had to take off her shoes, so yeah.
You had to take her shoes off?
Yes.
Were you there when the City of Saginaw Police Department
arrived?
Yes sir.
Did you talk to any Police Officer's there on Cumberland?
It was an African American Police Officer, all I told him was
my name and what I seen.
All right, did you have any other discussion with any Police
Officer's at the scene?
No sir.
Now, as of today, would you recognize if anybody is in
presence -- presence in the courtroom is either one or both
of the Black men that you saw?
No sir.
All right, would you look throughout the courtroom for me
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Yes sir.
And do you remember who told you to do that?
No, I don't know his name; I'm not sure, no sir.
And after you walked down the hallway, did you without going
into what you said, did you tell a Police Officer about what
you observed in the hallway?
Yes sir.
All right, when you walked down the hallway, do you remember
if there was vacant or rooms with anybody in them?
Yes sir.
Why don't you tell me how it was laid out and what you
remember about that?
Told me to walk down the hallway, look left and right, it was
two rooms, two males was sitting in a room, one was kind of
like really clean balled and then the other one he had
braids.
All right and when you got down to the end of the hallway,
were you asked anything about what you observed?
He asked me what did they have on in particular and I said
one just had on a wife beater and the other one had on a
white shirt.
All right, did you at any time tell this Officer, if you
remember as to whether or not you could identify either
person or whatever person were in the rooms?
As shooter, no sir.
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You don't remember that or it didn't happen?
No, I don't remember that, no sir.
You don't remember that, all right, I'm gonna show you a
Police Report here and for Counsel benefit it would be
Detective Trooper Doug Gough -- Gough's Report, page 1 and 2
and 2 of 2, it would be Report 1571703057.9, it's the 9th
supplement? All right Mr. Jones I'm gonna hand you this
Report and I want you read it to yourself before you say
anything, all right?
Yes sir.
I'm gonna hand you the report, I'm gonna point to this
paragraph here where it starts at, "The Saginaw PD", I want
you to read the concl -- that page there and I want you to
read the first paragraph at the top here, read that to
yourself, tell me when you're done reading?
I'm done.
All right you're done; does that Report help refresh your
memory?
Yes sir.
All right, now I'm gonna ask you some questions and you tell
me whether you remember or it didn't happen or what, all
right, just tell the truth? Do you remember walking down the
hallway and after walking down the hallway you told the
Sergeant as to who was in what room and who did the shooting?
No sir.
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No sir, I didn't tell anybody about a shooter.
You remember being asked who was in the other room?
Yes, he asked me did I see two people in a room.
All right, you remember that?
Yes sir.
You remember not making an identification at that time?
Yes sir.
Do you remember telling the Detective's Sergeant that the guy
in room number 2 was the shooter?
No sir.
You don't remember that?
I didn't say that.
Do you remember saying to him that the person in room number
2 --
MR. CRAWFORD: Your Honor, objection asked and ,, answered.
THE COURT: Overruled.
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-- Do you remembered saying that the guy in room number 2 was
the guy that you saw standing over the other guy and
shooting?
No sir.
You don't remember that?
I didn't say that.
,,
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Now the male inside of the vehicle, you stated on Direct
Examination that he was a heavy set male, correct?
Yes sir.
When say heavy set, if you can give estimate, how much did he
weigh?
At least 320, at least.
320, did you notice anything about his facial hair?
He had a beard.
It was longer
A long beard, yes.
-- okay so it wasn't like a goatee, it was a longer beard?
Yes sir, yes sir.
Now, you stated that you heard at least 7 shots, correct?
Mm-huh. \
Now did you also stated but you never saw the shooter get
inside the vehicle, correct?
Yes sir.
Did you happen to see the shooter run off?
No, cause after the shots were made, like I say then sped off
so I couldn't get a good look.
Now, you and -- there was someone behind you, one of your
friends you said --
Yes sir.
-- who went to school with you?
Mm-huh.
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And when you heard the firecrackers or you saw a gun, did you
continue looking or did you duck down?
No, I looked.
You looked and even though you looked how close was -- what's
the closes that you were to where that vehicle was?
Like from me to him, the Prosecutor right here, yes sir.
20, 25 feet?
Yes sir.
And yet you know because it happened so quick, you can't
identify the shooter or driver?
No sir.
Is that correct?
Yes sir.
You were -- could you describe what the drive was wearing at
all?
All I could see is his upper body, so I seen a white shirt,
he had a hat on and he was a big husky, heavy set man with a
beard.
And a hat, some type of hat?
Yes sir.
And, the other individual, did you see how that other
individual is dressed, if you remember?
No sir.
Did you again talk to other Officers' to give descriptions in
this case?
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Yes sir.
And a description you gave to I believe to Officer Patrick
Busch of the gunman let's say, you have him description of
what you saw is that correct?
Yes sir.
It was a Black male, is that correct?
Yes sir.
A white tee shirt?
Yes·sir.
Shaved head?
Yes sir.
Black cargo pants?
You talking about the driver?
No, the shooter?
Yes sir.
And Air Max's shoes I believe?
I don't know about know Air Max's.
Okay, but the rest of you know white tee shirt, shaved head
and black cargo pants, correct?
Yes sir.
The driver you said a beard, husky and some type of hat?
Yes sir.
You were taken to the Police Department, is that correct?
Yes sir.
And you had a conversation with one of the Officer's they
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Yes sir.
The individuals that were in the room, do you recall what any
of them were wearing?
One of them had on a wife beater; the other had just a plain
white tee shirt.
Now, for some you know people wife beater that's white type
tee shirt is that correct?
Yes sir.
That's not uncommon a dress for June for the summer time is
there?
No sir.
And the other had white tee shirt type deal?
Yes sir.
That's not an uncommon dress is that correct?
No sir.
So, there's nothing unusual about the dress was there?
No sir.
Did either of the individuals that you looked at had a shaved
head?
Yes sir.
And either one of them was heavy set?
No sir.
Did one have a big beard?
No sir.
How many shots or firecrackers or pops did you hear?
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City of Saginaw.
Did he tell you he was the driver or passenger of the
vehicle?
Mr. Sammons indicated that he was the passenger the whole
time.
Did he indicate who the driver was?
He stated that Mr. Ramsey was the driver the whole time.
So, he readily admitted that he and Mr. Ramsey were in the
Jeep?
Yes.
There's no doubt about that?
Correct .
Did Mr. Sammons at any time tell you who owned the Jeep?
I don't believe Mr. Ramsey told me that.
All right, did Mr. Sammons ever tell you whether or not he
had changed his clothes that day?
I asked him if he changed his clothes from the time when he
got up to till the time he was arrested, we had contact with
him he said that he did not, that he was still wearing the
same clothing.
And, what was the clothing that he was wearing?
He had on a white tee shirt, shorts and I believe tennis
shoes as well.
About what time during that afternoon did you interview Mr.
Sammons?
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STATE OF MICHIGAN
IN THE 70th JUDICIAL DISTRICT COURT FOR SAGINAW COUNTY
THE PEOPLE OF THE STATE OF MICHIGAN
vs .
DOMINIQUE ARNETT RAMSEY ,
Defendant /
Case No. 15-003348-FY
/~-OL/) t t.j1 ~f(
8 THE PEOPLE OF THE STATE OF MICHIGAN
9 vs. Case No. 15-003349-FY
) ~ -o L{ 13 L/f (Z-r,"' (t") 10 TRAVIS TRAVON SAMMONS ,
r -
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..... G"> ~ - _ .. -Defendant/ r "
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PRELIMINARY EXAMINATION ' c,. -:, ~ G r r(I :.: • .\ _.
" - < VOLUME II OF II :_=, • • ..- ·-
BEFORE THE HONORABLE A.T. FRANK, D~I;;~uo'Qt ~ \
SAGINAW, MICHIGAN - Monday, October 26, 2015
APPEARANCES:
For the People: DANIEL G. VAN NORMAN (P-34222) Assistant Prosecuting Attorney 111 S. Michigan Avenue Saginaw, Michigan 48602 ( 989 ) 790-5330
MARK J. GAERTNER (P-33773) Assistant Prosecuting Attorney 111 S. Michigan Avenue Saginaw, Michigan 48602 (989 ) 790-5330
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APPEARANCES:
For the Defendant:
For the Defendant:
RECORDED AND TRANSCRIBED BY:
ALAN A. CRAWFORD (P-74474} 120 N. Michigan Avenue Ste. 303 Saginaw, Michigan 48602 (989) 355-1717
JAMES F. PIAZZA (P-30172) 903 Court Street Saginaw, Michigan 48602 (989) 791-1813
PATRICIA A. WISE CER 6066 Certified Electronic Recorder 111 s. Michigan Avenue Saginaw, Michigan 48602 (989) 790-5375
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2 WITNESSES: PEOPLE
3 DAVID RIVARD
TABLE OF CONTENTS
PAGE:
Direct Examination {cont} by Mr. Gaertner 78 4 Cross-Examination by Mr. Crawford 83
Cross-Examination by Mr. Piazza 86 5 ROBERT SCOTT
Direct Examination by Mr. Van Norman 6
VOIR DIRE 7 BY Mr. Piazza
VOIR DIRE BY Mr. Crawford
DAVID RIVARD
8
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11
Direct Examination {cont) by Mr. Van Norman Cross -Examination by Mr. Piazza
12 WITNESSES: DEFENSE
13 None
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16 EXHIBITS:
17 PX#l - AUTOPSY REPORT
18 PX#2 - CERT. CONV. DOMINIQUE RAMSEY
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25
PX#3
PX#4
PX#5
- CERT. CONV. TRAVIS SAMMONS
- CELLPHONE RECORDS
- CD SECURITY CAMERAS
75
IDENTIFIED:
92
92
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103
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108 111
RECEIVED:
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Were they individually in an individual room without the
other one in that room?
That is correct.
And do you remember who those two were that were placed in
the room?
Travis Sammons was in interview 2 and Mr. Ramsey was
interview room 3.
Okay, did you know a person by the name of DyJuan Jones?
Yes , he is one of the possible witnesses'.
And did you have contact with DyJuan Jones outside of those
interview rooms?
I did.
And, did he subsequently make an identification?
He did.
All right, without going into that would set the stage as to
how he physical or wear he moved physically at the Saginaw
Police Department to make that identification?
At the Saginaw PD there is a hallway and at the end of one of
the hallway there is two interview rooms. Interview room 2
would be to your life, interview room would be to your right.
THE COURT: I think we went over it, this part of
it.
MR. GAERTNER: All right, I was just trying to lay
the foundation.
25 BY MR. GAERTNER:
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Very briefly, state it?
With that I had Mr. Jones, I explain to him if he'd walk down
the hallway and look into both rooms and then return back to
me and once in looking inside the rooms, if he identified any
of indivi duals in the room, if he could explain how he
recognized them or how he knew them.
All right, then wait at one end of the hallway?
I did.
Did Mr. Jones come to you?
He did.
Did you and he have a conversation as to an identification?
Yes.
Would you state for the Court what it was?
MR. PIAZZA: And, Your Honor, I would assume I have
a continuing objection for the record?
THE COURT : Absolutely.
MR. PIAZZA: Thank you.
18 BY MR. GAERTNER:
19 Q Go head?
20 A Mr. Jones explained that the individual in number 2 was the
21 shooter.
22 Q And, who was that person that was in number 2?
23 A That'd be Mr. Sammons.
24 Q And is that person present in the courtroom today?
25 A He is.
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Yes.
There were three Detectives' I believe that were assigned to
this case correct?
I do believe there's more than that originally.
And Dominique Ramsey was arrested in a vehicle shortly after
this incident occurred correct?
Detained.
Detained, roughly how many minutes elapsed between the actual
shooting and Dominique Ramsey detainment?
I'd have to review the report to -- I don't remember the
exact time.
Less than 30 minutes though correct?
Oh, yes.
And, Mr. Ramsey as he sits here today, his appearance hasn't
changed much from when he was detained correct?
Well a little.
Well, he certainly wasn't anywhere around 300 pounds on June
21st of 2015, was he?
No, he wasn't.
And, he certainly didn ' t have a beard that came down to the
middle of his stomach, did he?
No, he did not.
In fact when he was arrested he was fair to say that Mr.
Ramsey was approximately 150 pounds or less?
That's correct.
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW
PEOPLE OF THE STATE OF MICHIGAN
vs.
DOMINIQUE ARNETT RAMSEY, TRAVIS TRAVON SAMMONS,
File No. 15-041847-FC-5 File No. 15-041848-FC-5
Defendants. _______________ !
JURY TRIAL - VOLUME II OF IV
BEFORE THE HONORABLE DARNELL JACKSON, CIRCUIT JUDGE
Saginaw, Michigan - January 21, 2016
APPEARANCES:
For the People:
For Defendant: Ramsey:
For Defendant: Sammons:
Report,d by:
DANG. VAN NORMAN (P34222) ASSISTANT PROSECUTING ATTORNEY 111 s. Michigan Avenu~ Saginaw, MI 48602-2019 (989) 790-s330 I
ALAN A. CRAWFORD (P74474) LAW OFFICES OF ALAN A. CRAWFORD, PLLC 120 N. Michigan Avenue, Ste. 303 Saginaw, MI 48~.02-4236 (989) 355-1717
JAMES F. PIAZZA (P30172} ATTORNEY AT LAW 803 Court Street Saginaw, MI 48602 (989) 791-1813
ESTELLE B. PRZYBYLSKI, CRR, RMR, CSR-3789 Official court Reporter
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I N D E X
Opening Statement by Mr. Van Norman
Opening Statement by Mr. Crawford
Opening Statement by Mr. Piazza i,!\,
WITNESSES FOR THE PEOPLE:
BRADLEY HOLP
Direct Examinatio~ By Mr. Van Norman Cross-Examination By Mr. Crawford Cross-Examination By Mr. Piazza
TYLER POIRER
Direct Examination By Mr. Van Norman Cross-Examination By Mr. Crawford Cross-Examination By Mr. Piazza Redirect Examination By Mr. Vari Norman Recross-Examination By Mr. Crawford Recross-Examination By Mr. Piazza
ROBERT SCOTT
Direct Examination By Mr. Van Norman Cross-Examination By Mr. Crawford Cross-Examination By Mr. Piazza Redirect Examination By Mr. van Norman Recross-Examination By Mr. Crawford
DYJUAN JONES
Direct Examination By Mr. Van Norman Cross-Examination By Mr. Crawford Cross-Examination By Mr. Piazza Redirect Examination By Mr. van Norman
2
PAGE
4
20
26
PAGE
31 40 42
47 59 61 69 71 71
72 89 96
106 109
116 133 140 148
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WITNESSES FOR THE PEOPLE (CONT'D):
FELICIA LITTLE
Direct Examination By Mr. Van Norman · Cross-Examination By Mr. Piazza
ROSEI WATKINS
Direct Examination By Mr. Van Norman Cross-Examination By Mr. Crawford Cross-Examination By Mr. Piazza Redirect Examination By Mr. Van Norman
DOUGLAS GOUGH
Direct Examination By Mr. Van Norman
* * *
EXHIBITS:
PX 1 PX 2 PX 3 PX 4 PX 5 PX 7 PX 8
Aerial map Map of Route Aerial Map - Satellite View Photograph - victim CD of Route Photograph - Jeep Photograph - Jeep
* * *
3
PAGE
151 161
162 169 173 176
178
RCVD
34 7.7 77 37 81
181 181
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a I want to direct your attention to the afternoon hours observed what was a silver Jeep Commander. And based 2 of the 21st of June, last year, Father's Day. Were you 2 off some incident earlier that day, I had obtained some 3 working that day? 3 information regarding this car. 4 A Yes, sir, I was. 4 As I turned around on the car, I noticed that
.~ 5 a Okay. And, specifically, If I direct your attention to 5 the car actually had a defective brake light as well. 6 1 :00, 1 :15 in the afternoon, maybe 1 :30 or so, were you 6 And once I proceeded to catc.h up to that car, they hit 7 working at that time? 7 their brakes again, which confirmed they had the 8 A Yes, sir, I was. 8 defective brake light, which then caused me to initiate 9 a Okay. And that would-would that be the day shift or 9 a traffic stop. 10 the afternoon shift? 10 a Do you recall the make or the type of vehicle it was? 11 A I was working day shift at that time. 11 A It was a Jeep Commander. 12 a Okay. And what were you doing - or when you were 12 a Okay. So the make was a Jeep, model was Commander? 13 working, what were your duties at that particular point 13 A Yes, sir. 14 in time? 14 a Do you recall the color? 15 A At that particular point in time, I was actually 15 A It was silver. 16 driving northbound on Dixie Highway in Bridgeport 16 a And, in the course of your duty, did you observe the 17 Township. 17 license plate? 18 a Okay. Is It safe to say you were on a routine patrol? 18 A Yes, sir. 19 A Yes, sir I was. 19 a And were you able to get a plate number?
20 a And did you have occasion to make a traffic stop? 20 A Yes, sir, I was. 21 A Yes, sir, I did. 21 a Do you have that - do you recall it right off the top 22 a Okay. And what caused you to make that traffic stop? 22 of your head? 23 What brought that - this particular vehicle to your 23 A It was DFQ 9593. 24 attention? 24 a And, again, you first - where did you first observe 25 A Well, as I was driving northbound on Dixie Highway, I 25 this vehicle? Where was it -
48 49
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1 A When - as I stated before, as I was patrolling 1 MR. VAN NORMAN: Your Honor, may the record 2 northbound on Dixie Highway, I observed this vehicle on 2 reflect identification of Defendant Ramsey? 3 Dixie traveling southbound near Sun Valley. 3 THE COURT: It shall reflect. 4 a Okay. And is that •• and then, at that point, if I 4 MR. VAN NORMAN: Thank you. 5 understand, you made a U-tum because you were 5 BY MR. VAN NORMAN: 6 traveling northbound; correct? 6 a And the passenger, is that person situated in the 7 A Yes, sir. 7 courtroom? 8 a Okay. And about how long did you follow it before you 8 A Yes,sir. 9 effectuated the stop? 9 a Would you point him out and identify him for the 10 A I don't know the exact distance, but H I had to 10 record. 11 estimate, maybe half-mile, almost to a mile. 11 A He is sitting next to Mr. Piazza there in the 12 a Okay. And do you recall the cross-street? 12 button-down - looks like striped shirt. 13 A Yeah, I initiated a traffic stop on Dixie Highway near 13 MR. VAN NORMAN: Your Honor, may the record 14 a road called Gretchen. 14 reflect identification of Defendant Sammons? 15 a Gretchen. And you approached the vehicle, I presume? 15 THE COURT: It shall reflect. 16 A Yes, sir, I did. 16 MR. VAN NORMAN: Thank you. 17 a And how many occupants were present? 17 BY MR. VAN NORMAN: 18 A I observed two occupants in the vehicle. 18 a Now, when you effectuated this traffic stop, and 19 a Just so that I'm clear, so the record's clear, are 19 forgive me, what happened after that when you - you 20 either or both of those occupants present in the 20 approached the vehicle, I presume? 21 courtroom today? 21 A Yes, sir. 22 A Both occupants are present today. 22 a And then what happened? 23 a Okay. Would you identify, first off, the driver? 23 A When I approached the vehicle, I approached on the
r-,... 24 A The driver is sitting to the right of Mr. Crawford 24 driver's side. At this time, Mr. Ramsey advised me ' 25 there in the tan vest and brown shirt. 25 that he did not have a driver's license on him, which I
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then- A All I can recall is that he had a white T-shirt on. 2 Q Let me stop you. Did you ask him to produce one? 2 Q With respect to Mr. Sammons, you indicated you got -3 A As I was actually walking up, he said he didn1 have 3 he got out of the car.
!\ 4 one. I heard him say out of the window that he didn1 4 A After - once I approached and asked him to step out of 5 have a license. 5 the vehicle, he exited the vehicle. 6 Q Okay. And then what did you do after that? 6 Q At your request. Do you recall what he was wearing? 7 A Well, at that time, because he was committing a 7 A I do not recall exactly what he was wearing. 8 misdemeanor traffic offense, I asked him to step out of 8 Q Well, you did or you do in the course of your 9 the vehicle. 9 performance of your duties, you have a dash cam or some 10 Q Okay. And then? 10 type of in-car video; correct? 11 A When I had him step out of the vehicle, I had him walk 11 A Yes,wedo. 12 to the back of the car, I conducted a pat-down of him, 12 a Okay. And just so that I'm clear and the jury 13 make sure he didn1 have any weapons or anything like 13 understands, there is - there's more than one video 14 that, and placed handcuffs on him. 14 being taken by the unit in your car; correct? 15 a What did you do after that? 15 A Yes, sir, there is. 16 A After I placed the handcuffs on him, I placed him in 16 Q Okay. In other words, how many angles or how many 17 the back of my patrol car. 17 perspectives are there, actually? 18 Q What, if anything, did you do with respect to 18 A There's two cameras in the vehicle, one that is 19 Mr. Sammons? 19 pointing straight ahead at the -what would be in this 20 A Well, as I was dealing with Mr. Ramsey, once I placed 20 case the car that I initiated the traffic stop with, 21 him in the rear of my patrol vehicle, I then approached 21 and there's also one in the back seat of our patrol car 22 the vehicle again on the passenger side, where I made 22 that watches if we have somebody sitting in the back 23 contact with Mr. Sammons. 23 seat. 24 Q And if we go back a no~ with respect to Mr. Ramsey, 24 Q Okay. And they work - do they work simultaneously? 25 what, if any - do you r what he was wearing? 25 A Yes, sir.
1 52 53
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1 Q So, in other words, one isn1 dependent on the other; A Sun Valley's going to be - we got The Gardens here. 2 they both work at the same time? 2 It's going to be up in this area right here before -3 A That is correct. 3 it's actually going to be what looks like that little 4 a Okay. And, did you notice-what, if anything, did 4 road where it curves just south of the Speedway 5 you notice about - about Mr. Sammons that got your 5 there on Dixie. 6 attention, if anything? 6 Q Now, as I understand it, did you have any discussion 7 A Well, when I pulled Mr. Sammons out of the vehicle - 7 with either of the defendants regarding a Birch Park 8 or I should say I asked him to step out of the vehicle, 8 location? 9 and had him come back to the back of the Jeep, I had 9 A Yeah. When I had Mr. Ramsey step out of the vehicle 10 him tum around, as - when I went to conduct my 10 and I was speaking to him, I asked- usually, when I 11 pat-down, I also noticed his hands were sweating 11 make a traffic stop, I ask where somebody's coming 12 heavily. And, to me, I felt that was pretty odd. 12 from. And I asked Mr. Ramsey where he was coming from 13 a Officer, I'm going to ask you to very briefly step down 13 at this time, and he said he was just leaving his 14 from the podium to the easel here, and I'm going to 14 cousin's house in Birch Park. 15 show you what's been marked as People's Proposed 2. 15 Q Now, does that proposed exhibit - would Birch Park be 16 Can you identify this for the record? 16 located somewhere within the confines of that proposed 17 A This appears to be Dixie Highway right here. 17 exhibit? 18 a Okay. When you say "right here,• you're pointing to a 18 A Excuse me. Yeah -yeah, it would be. Yes. 19 line. Now, there's a couple of different lines. Does 19 a And where would that be? 20 this one have a particular color? 20 A It would be on Hess Road over here in this general 21 A Yeah, it's the blue line. 21 vicinity. 22 a Okay. And Dixie Highway and Gretchen, is that - 22 Q Okay. Would that be on either side of the Dixie? 23 that's where you indicated the stop was; correct? 23 A It's going to - it would be on the west side of Dixie,
.0 24 A Yes, sir. 24 yes. 25 a Okay. About how far up the road is Sun Valley? 25 Q Okay. Thank you, Officer. You may resume the stand,
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please. 1 car at the particular point in time this video is 2 A Thank you. 2 operating;correct? 3 MR. V~ NORMAN: I apologize, Your Honor. 3 A That is correct.
·0 4 We're getting our video operator. We may have a 4 a Now, the video itself has a tirneline; correct? 5 fill-in, Your Honor. 5 A Yes. 6 THE COURT: I hope so. 6 a And this one says 12:34? 7 BYMR. VAN NOR~: 7 A Yes. 8 a Officer, I'm going to direct your attention to the 8 Q Now, you indicated you were - made this stop sometime 9 video screen. 9 after 1 :15; correct? 10 THE COURT: I believe your expert has 10 A Yeah. I think It was around the 1 :30 area. 11 arrived. 11 Q Okay. 12 MR. V~ NORMAN: Ah. 12 A 1:35. 13 BY MR. V~ NORMAN: 13 a And do you recall, just before we get to that, how long 14 a I'm going to show you part of whafs been marked as 14 after you got the cal or you received the dispatch, 15 People's Proposed 5. Before we play it, can you 15 how much time lapsed between that - between the time 16 identify those -what's on the screen at this point? 16 you got the dispatch and the time you made the stop? 17 A Yeah. On the what-would be the left-hand side of 17 A It was approximately 11 minutes or so. 18 the screen is the front view of the camera facing the 18 0 Okay •. So if - is It uncommon tor these videos because 19 road. And then, as I stated before, on the right hand 19 of Daylight Savings Time or what have you, to be an
20 the back seat of my patrol vehicle. 20 hour - essentially an hour off? 21 Q So this is what you - on the left is what you see as 21 A That is possible, yes, sir •. 22 you're driving or as you're occupying the driver's seat 22 a Kind of tike people that forget to change their watches 23 then, if rm correct? 23 or computers that doni do It right on time? 24 A That is correct. 24 A Righl 25 a And then, what we see on the right is back seat of your 25 a Would that be the case in this - in U,is situation, if
56 57
~ 1 you know? 1 A Yes, sir. 2 A As far as I know, yes. 2 Q Okay. These are - these are simultaneous. There's no 3 MR. VAN NORMAN: Okay. Play the video, 3 · delay between the one on the left and the one on the 4 please. 4 right; correct? 5 THE COURT: Can everyone in the jury see the 5 A That is correct. 6 video, the screen? 6 a And this is the man you identified previously as the 7 THE JURORS: {Nodding heads.) 7 gentleman wearing the striped shirt? 8 MR. VAN NOR~: Thank you, Your Honor. 8 A Yes, sir. 9 (Video played.) 9 Q Thank you. 10 BY MR. V~ NOR~: 10 {Video concludes.) 11 Q This is the Jeep Commander you stopped; correct? 11 MR. VAN NORMAN: Unless the defense intends 12 A Yes.sir. 12 to question on the video, I'm going to excuse Detective 13 a And I see - the left light is WOlking, the right tight 13 Trooper Scott during cross-examination. 14 is not; correct? 14 THE COURT: Do you intend to recall Trooper 15 A That Is correct. 15 Scott at some point to testify? 16 Q Going to go out on a limb here. That's you approaching 16 MR. VAN NORMAN: He will be my next witness, 17 the vehicle? 17 Your Honor. 18 A Yes, thafs me approaching the vehicle. 18 THE COURT: Okay. Don1 excuse him too far. 19 a Is the driver handing you something at that point? 19 MR. VAN NORMAN: No. Fair enough. Thank 20 A I think he was giving me an identification card, but 20 you, Your Honor. 21 not an actual valid driver's license. 21 THE COURT: Questions, Mr. Crawford. 22 Q Just so rm clear, is this the same individual that 22 MR. CRAWFORD: Yes. 23 you've previously identified as Mr. Ramsey? 23 CROSS-EXAMINATION
-0 24 A Yes, sir. 24 BY MR. CRAWFORD: 25 Q The gentleman in the brown sutt with the bow tie? 25 Q Officer Poirer, good morning.
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1 A Good morning. A No, I did not 2 a I just have a few brief questions about the traffic 2 a Didn1 find any drugs on him; correct? 3. stop that you performed; okay? 3 A No, I did not.
.~ 4 A Okay. 4 a And, Mr. Ramsey, he also allowed you - gave you 5 a Now, when you originally turned your lights on, 5 consent to search his vehicle; correct? 6 effecting the traffic stop, the vehicle, the Jeep, it 6 A That is correct. 7 didn1 speed up; did it? 7 a Didn1 find any guns in his car; did you? 8 A -No, it did not. 8 A Did not. 9 a It pulled over; correct? 9 a And he - you didn1 have to get a search warrant to 10 A That is correct. 10 search his car, either; correct? 11 a And, when you approached the window, there was a brief 11 A That is correct. 12 conversation with Mr. Ramsey; correct? 12 a Because he allowed you to search his car; right? 13 A Yes. 13 A That is correct. 14 a And he wasni argumentative with you; was he? 14 a Also, you talked about Mr. Sammons' demeanor. Now, as 15 A Not at all. 15 It pertains to Mr. Ramsey, he wasni sweating; was he? 16 a When you asked him to get out the car, he complied; 16 A No, not at all. 17 correct? 17 a He appeared to be acting very normal; correct? 18 A That is correct. 18 A Yeah. 19 a And when he got out the car, he didn1 try to run off; 19 MR. CRAWFORD: No further questions. 20 did he? 20 THE COURT: Questions, Mr. Piazza. 21 A No, he did not. 21 MR. PIAZZA: Thank you, Your Honor. 22 a He let you search him; correct? 22 CROSS- EXAM I NATI ON 23 A Yes. 23 BY MR. PIAZZA: 24 a And while you searched him, you didn1 find any guns on 24 a Officer, you were working a one-man unit? 25 him; did you? 25 A Yes.
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1 a The one man being you were by yourseH in a patrol 1 A No. 2 vehicle; is that correct? 2 a Didn1 try to duck into some parking lot or driveway, 3 A That is correct. 3 did It, that you observed? 4 a And It was a marked unit; is that correct? 4 A No, it did not. 5 A Yes, it was. 5 a All right. You pulled up behind the vehicle; is that 6 a So it said "police" on the side of the vehicle? 6 correct? 7 A Both sides, correct. 7 A That is correct, sir. 8 a And It had the bubbles on top? 8 a The vehicle Itself was doing about the speed limit when 9 A It was a slick top patrol car, meaning the lights are 9 you pulled up behind It; is that correct? 10 inside. 10 A At that time, it was, yes. 11 a Inside. Okay. And, when you observed this vehicle- 11 a Okay. And when you turned on the -your lights, you 12 oh, by the way, you received a dispatch to look out for 12 activated your lights, that would be the red and blue 13 a - I believe an older style Jeep; is that correct? 13 flashing lights that you can see; is that correct? 14 A I was - I was told It was a box style Jeep, an older 14 A Yep. 15 box style Jeep; that is correct. 15 a And when you turned that on, this vehicle still didn1 16 a Okay. Older box style Jeep. Okay. And this was a 16 take off at a high rate of speed; correct? 17 Jeep Commander that you pulled over; is that correct? 17 A No. It pulled over immediately. 18 A That is correct. 18 a Okay. You stopped and waited for a brief moment in 19 a Now, when you observed this Jeep Commander, you were 19 your vehicle before you exited your vehicle; is that 20 going the opposite way; is that correct? 20 correct? 21 A That is correct. 21 A That is correct. 22 a You had to make a U-turn; is that correct? 22 a Neither the driver or the passenger took off running on 23 A Yes, sir. 23 foot; did they? 24 a And when you made a U-tum, this vehicle didn1 take 24 A No, they did not. 25 off at a high rate of speed; did it? 25 a Okay. You walked up to- as we observed on video, you
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marked.) state your full name for the record, please. 2 MS. LEWIS: All rise for the jury, please. 2 A Dyjuan DeShawn Davaun (phonetic) Jones. 3 (Jury returned at 1 :48 p.m., proceedings 3 Q May I call you Dyjuan? 4 reconvened.) 4 A Yes, sir.
0 5 MS.LEWIS: Court is again in session, the 5 Q Thank you. Mr. Jones, how old are you? 6 Honorable Darnell Jackson presiding. 6 A I'm 17. 7 THE.COURT: Please be seated. Mr. Van 7 Q Okay. Dyjuan, your mother's name is? 8 Norman, you may call your next witness. 8 A Felicia Little. 9 MR. VAN NORMAN: Thank you, Your Honor. At 9 Q I want to go back to June 21 of last year, Father's 10 this time, the People would call Dyjuan Jones. 10 Day. Do you remember that day? 11 MS.LEWIS: Please raise your right hand, 11 A Yes, sir. 12 sir. 12 Q I want to direct your attention to sometime after 1 :00 13 THE COURT: Hold on one second. 13 in the afternoon. It was one, 1 :30, somewhere in 14 MS.LEWIS: Please raise your right hand. Do 14 there. Do you recall where you were and with whom? 15 you solemnly swear that the testimony you shall give in 15 A I was with my mother coming home - coming from church, 16 this cause here pending shall be the truth, the whole 16 on our way home. 17 truth, and nothing but the truth, so help you God? 17 Q Okay. And just so that I understand It, when you 18 MR.JONES: ldo. 18 were - you and your mom were riding together? 19 MS.LEWIS: You can take the witness stand. 19 A Yes, sir. 20 DY JUAN JONES, 20 Q And there was nobody else in the car? 21 Being first duly sworn at 1 :50 p.m., testified under 21 A No, sir. 22 oath as follows: 22 Q Now, the way you ride with your mom, Mom's driving; 23 DIRECT EXAMINATION 23 right? 24 BY MR. VAN NORMAN: 24 A Mm-hmm. 25 Q Mr. Jones, good afternoon. You spelled It. Can you 25 Q And just so that I understand it, we have, like most
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1 cars, a front seat and a back seat; correct? 1 Q Okay. 2 A Yes, sir. 2 A But-3 Q And where were you situated? Where were you sitting? 3 Q Let me - let me take you back a notch. 4 A I sit behind the passenger seat in the front seal 4 A Mm-hmm. 5 Q So H Mom's here in the driver's seat - · 5 Q You're traveling on Cumberland near Holland?
6 A I'm in the back seat behind the passenger. 6 A Yes, sir. 7 Q Okay. Kind of kitty comer to her? 7 Q And you hear what you thought were firecrackers?
8 A Mm-hmm. 8 A Mm-hmm.
9 Q Okay. And did there come a time that- somewheres 9 Q Now- and forgive the inartful question. You've had
10 around that time where you were riding with Mom and you 10 occasion in your life to hear gunshots before?
11 were somewhere on Cumberland Street near Holland? 11 A Yes, sir.
12 A Yes, sir. 12 Q In your mind is there that much of a difference between
13 Q Okay. And was there anything - anything that caught 13 the two-
14 your attention or made you focus on something other 14 A Not really, no.
15 than what you normally did in the car? 15 Q - particularly given the time of year?
16 A I heard what sounded like firecrackers - 16 A Yes, sir.
17 Q Okay. 17 Q Okay. And, when you first heard the shots, did you see
18 A - because It was in June, so, you know Fourth of 18 where they were coming from when you first heard them?
19 July's coming up, so I'm just thinking, you know, 19 A No.
20 they're popping the fireworks early. 20 Q Okay. So you were -your attention -your visual
21 Q Okay. 21 attention was somewhere else?
22 A So I didn1 pay no mind to it. But then, I heard it 22 A Exactly, yeah.
23 again. So I turned around and looked, and I just - I 23 Q Okay. And when you heard - how many - how many of
.~ 24 hear the gun, and I see it, but in, like, three to five 24 those firecracker or gunshots did you hear? ' 25 seconds, we speed off. 25 A First time, I heard three.
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a Okay. And what did you do when you heard those? second over to an easel here, and we're going to take a 2 A Um, I didn1 pay no - like, I didn1 pay no mind to It 2 look at what we call People's Exhibit 1. Come on over 3 because I just thought they were lighting firecrackers, 3 here. 4 then they'd just stop. But then, when I heard another 4 We can agree that this is an aerial photo of -~ 5 one, I turned around and look because we were driving 5 the area where all this happened; right? 6 and so It came from behind me. 6 A Mm-hmm. 7 So then, I look and I turned around and I see 7 a Okay. And can you point out for the jury- this would 8 what was going on. And my mom just speeds off, like, 8 be the Blue Diamond here. Can you point out where you 9 she almost started crying, but I was so struck to what 9 saw this happen? 10 was going on, I stopped and I was just staring. 10 A Right about in - right here, in this area right here, 11 a Okay. Tell me what you saw. 11 because we were coming from the tracks right here. 12 A As we were crossing the tracks on Cumberland, we were 12 a Okay. Take the stand again. Thank you. 13 passing a little auto body shop or whatever. And as we 13 A Okay. 14 passed the tracks, I heard what I thought was 14 a Now, did you - were you able to get enough of a look 15 firecrackers. And then, I didn1 pay no mind to it. 15 at the people at the scene to be able to identify them? 16 But then, I heard them again, so I turned 16 A No. I cani identify them to this day. No. 17 around, and I see an African-American male shooting a 17 a Can you tell me anything about what - the individual 18 Hispanic male. And when the firecracker - well, when 18 that was doing the shooting, can you tell me anything 19 the guns~ots stopped, I see the Hispanic male, like, 19 about his ethnicity? 20 rolling in the - from the sidewalk into the street, 20 A Just know he was African-American. 21 trying to get away from It. And, as the gun unjammed 21 a Okay. And what was he wearing, if you recall? If you 22 when I thought it jammed, he started shooting again. 22 know? 23 And the Hispanic male just kept rolling and rolling 23 A H I remember, I just - I only remember the big white 24 until he just didn1 roll any more. 24 T-shirt. 25 a I'm going to have you step down from the podium for a 25 a Okay. Now, after you observed - let me ask you this.
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__ --..._ 1 You say you heard three shots the first time; correct? 1 happened from your perspective as far as what you and 2 A Yes, sir. 2 your mom did? What happened next? 3 a And then, there was a pause. Did you - when you first 3 A When we heard the shots, we sped off and going up 4 laid eyes on these events, was the individual shooting 4 Cumberland, and we made a left towards East Holland -5 or was he doing something else, n you remember? 5 a Okay. 6 A He was what I was - what I can think about or what can 6 A - towards the Admiral gas station. But since my mom's 7 I remember, he was trying to attempt to shoot some 7 a nurse - well, she's becoming a nurse. 8 more, but the gun didn1 - It was jammed, I guess. 8 a Let me just clarify something. You went up to the 9 a Okay. And what did he do with - after-when he was 9 intersection here. Your mom was driving; right? 10 unable to shoot, did there come a time when he was able 10 A Yes. 11 to shoot again, or you wouldn1 know that whether or 11 a She went to the intersection of Holland and Cumberland? 12 not he shot again? 12 A Yes, sir. 13 A No, sir, I don1 remember that. 13 a And then she turned left? 14 a Okay. So you heard three shots? 14 A Yes, sir. 15 A Yes. 15 a Okay. Where did - where did the two of you go after 16 a Then there was a pause? 16 you turned left? 17 A Mm-hmm. 17 A She was - we were intending to go home, but I told 18 a Did you hear any more shots after that? 18 her, you know, can we just tum around and see if the 19 A After that, probably like, at least seven seconds 19 man's okay, because, you know, she - she's trying to 20 later, yeah. 20 become a nurse, and she's certified for CPR and 21 a Okay. So three, pause, seven or so? 21 everything. 22 A Mm-hmm. 22 So we turned around in the Admiral gas 23 a So maybe as many as 1 O? 23 station, we make our way back to the scene.
-~ 24 A Yes, sir. · 24 a Do you know if either - either of you got on a cell 25 a Okay. After you heard the shots, where did you - what 25 phone or made a call while -
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a - since h was June, correct? A Yes.sir. 2 A Yes.sir. 2 Q - in other words, somebody- do you remember the name 3 Q But just later in the day? 3 of that detective?
.r'\ 4.A Yes.sir. 4 A What was his name? I think Doug, something like that. 5 Q Okay. And when you arrive there, did you stay with 5 I don't know. rm not sure. 6 your mom. or did there come a time where you were 6 Q Okay. His first name was Doug? 7 separated from her? 7 A · Mm-hmm. 8 A Yeah. It came a time when they wanted to ask us 8 Q Okay. And you talked with Doug for a while? 9 questions. 9 A Yes, mm-hmm. 10 Q Okay. 10 a Let me ask you. did Doug have you do anything with 11 A And we were separated. 11 respect to maybe looking at somebody or seeing -12 Q And you were present. Did your mom agree to that? 12 A They made me walk down the hal, a narrow hallway -13 A Yes. 13 Q Okay. 14 a So you were taken somewhere else; correct? 14 A - with two rooms on the side. 15 A Yes.sir. 15 a Let me stop you there. Bef01e you walked down that 16 a Now, you were 17 at the time; correct? 16 hallway-17 A No, I was 16. 17 A Mm-hmm. 18 Q Sixteen? Okay. So you've hit your 17th birthday since 18 Q - okay, you had a conversation with Doug; right? 19 then? 19 A Yes.sir. 20 A Yes,sir. 20 a Did - do you recall Doug teling you anything about 21 a Okay. And, after they took you aside, you don1 know 21 who was down there, if anybody? 22 what conversations they had with Mom; do you? 22 A He didn1 give me anything - you know, particular of 23 A Right. 23 who was in the room. He just told me to see - look 24 Q Whatever conversations they had with her, you were 24 left and right, see if I recognize anyone, and come 25 involved with a detective of your own; colf8ct - 25 back.
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~' 1 Q Okay. And did he walk down that hallway with you? 1 a That's what you're telling us today? 2 A No, sir. 2 A Exactly. 3 a Okay. So if, for example, I'm standing here at the 3 a Now, you've had occasion to talk about this under oath 4 podium, and you walked down the hallway, came back? 4 before; correct? 5 A Mm-hmm. 5 A Yes, sir. 6 a Doug, did Doug go anywhere with you? 6 a And you recal us asking you or another assistant 7 A No, sir. 7 asking you about whether or not you had made a 8 a Okay. He just stood there? 8 statement of identification to the man you called Doug; 9 A Yes.sir. 9 correct? 10 a While you walked down there, walked back. did he say 10 A Yes.sir. 11 anything? 11 a And if I were to say to you that Doug's last name is 12 A No,sir. 12 Rivard (sic], would you argue with that? 13 a Make any suggestions about what you were looking at. 13 A I'm not sure. 14 anything like that? 14 Q In any event, as I understand It, and, again, just to 15 A No, sir. 15 be -you may - It's your position you didn1 say 16 Q Okay. There came a time when you observed a couple of 16 anything to Doug about what those individuals, who they 17 people; correct? 17 were or were not; correct? 18 A Yes, sir. 18 A Yes, sir. 19 Q And what, if anything, did you tell Doug when you 19 a I'm going to show you a copy of this report. I want 20 walked back? 20 you to review It and see if It refreshes your 21 A I told him only thing that was similar was that both 21 recollection. 22 males were African.American. 22 MR. PIAZZA: Well, rm going to object to 23 a Okay. So as I understand it, you didn1 identify 23 that, Your Honor. It appears his memory does not need 24 anybody? 24 to be refreshed. He didn, say he doesn, remember. 25 A No, sir. 25 THE COURT: l'U overrule the objection.
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the drive(~ weight? an ea~ier date? 2 A 1-1 believe fsaid about 280 to 320, something 2 A Can you rephrase that? 3 around that nature. 3 a Do you remember testifying about this situation -4 Q Okay. So somewhere between 280 and 320? 4 A Yes, sir.
~ 5 A Yes, sir. 5 Q -ea~ier? 6 Q Okay. And you observed him from roughly 25 to 30 feet 6 A Yes, sir. 7 away; correct? 7 MR. CRAWFORD: I'm going to show you, on 8 A Yes, sir. 8 page 32 of the preliminary examination - may I 9 Q And nothirt was obstructing your view when you saw this 9 approach, Your Honor? 10 280 to 320rpound male-. 10 THE COURT: You may. 11 A Exactly. 11 BY MR. CRAWFORD: 12 Q - correct?· Do you remember what type of shirt this 12 Q I'm just going to show you the testimony. If you can 13 large male:had on? 13 read that over to yourseH. 14 A I only seen his ~pper body, so he had a big, white 14 A Okay. 15 T-shirt on also. • 15 Q Let me know when you're finished. 16 Q Okay. And you
1
know that he was a heavyset male, I 16 A Now the male -17 imagine, becau'9 hjs body was protruding over the 17 Q Don1 read it out loud. Just read It to yourself. 18 windshield1 maybe? 18 A Oh, okay. Yeah, I remember- I remember this, because 19 A Yes, sir. 19 I did say that. 20 Q Okay. Now, yo~ also told Officer Bady while on ~e 20 Q Okay. So does that help refresh your recollection? 21 scene that the driver had a large beard; correct? 21 A A little bit, yes, sir. 22 A I believe so. I believe so. 22 a Okay. So you do remember describing the driver as a 23 Q Okay. 23 32o-pound male; correct? 24 A I'm not sure. 24 A Yes, sir. 25 Q Do you remember testifying in regards to this matter at 25 a And you - do you also recall describing the driver as
136 137
.....--.... \
1 having a long beard? 1 a Now, they took you to one room. Now, you testified 2 A Yes.sir. 2 that you didn1 make any identHications; correct? ' 3 a And this long beard, did this come down to the middle 3 A Yes, sir. 4 of his chin? 4 a Now, one of those rooms, did the officer ask you, is 5 A No, it came to, like, his collar - 5 that the driver -6 a To his coUar. 6 A No,sir. 7 A - like, it'D come.to, like, right here. 7 a - in there? But you did indicate that that was not 8 Q So It wasn, a normal goatee, but It was one that 8 the driver-9 someone could actually grab? 9 A Exactly. 10 A Yes, sir. 10 a - that you looked at? 11 a And this was very distinctive to you; wasn't It? 11 A Exactly. 12 A Yes, sir. 12 a That in either of the rooms that you looked at, you 13 Q Now, there was also some testimony a minute ago about 13 told the officer the driver is in neither one of these 14 you going to the police station on the day in question, 14 rooms; correct? 15 on June 21 ; correct? 15 A Yes, sir. 16 A Yes, sir. 16 a And that's because the people that they showed you were 17 a And this was roughly four to five hours after the 17 not consistent with the 320-pound male that you 18 shootingoccurred;correct? 18 described; correct? 19 A Yes, sir. 19 A Yes, sir. 20 Q Roughly four to five hours after you gave the 20 (Off-the-record discussion held.) 21 description of the driver to Officer Bady; correct? 21 MR. CRAWFORD: No further questions, Your 22 A Yes, sir. 22 Honor. 23 Q And while you were there, a detective took you to two 23 THE COURT: Questions, Mr. Piazza.
~ 24 dHferent rooms; correct? 24 MR.PIAZZA: Thank you, Your Honor. 25 A Yes, sir. 25
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CROSS-EXAM I NA Tl ON a You ran into a friend of yours or ex-classmate; is that 2 BY MR. PIAZZA: 2 correct? 3 a Good afternoon, sir. 3 A Yes.sir. 4 A Good afternoon. 4 a And your mother was assisting in - or assisting the 5 a I take it it was very distulblng, what you heard and 5 person on the ground; is that correct? 6 saw; is that correct? 6 A Yes.sir. 7 A Not really. 7 Q Police officers arrived; correct? 8 Q Okay. But rou were corning back from church - 8 A Yes.sir. 9 A Yes.sir. ! 9 a And you talked with police officers at the scene; is 10 Q - correctlAnd you're hearing some -what you 10 that correct? 11 thought fi rackers. And then another, you said you 11 A Yes, sir. 12 looked around and saw a gun being discharged; is that 12 a You also talked with some officers down at the police 13 correct? i 13 station at 612 Federal, is that correct-14 A Yes, sir. 14 A Yes, sir. 15 Q About 25 f,et away, according to what you've indicated 15 Q - later? All right When you talked with the 16 to counselj is that correct? 16 officers, you gave a description, as you indicated, 17 A Yes, sir. 17 about the driver being, you know, a heavyset black male 18 a And thestn that you indicated was the shooter, you 18 with, you know, a goatee- a long goatee or something; 19 did not . get into any vehicles as yo1,1 were driving 19 is that correct? 20 away; is that correct? 20 A Yes.sir.
' .,,/'-.
21 A Yes, sir. ! 21 a You also gave a description of the gunman as best as
22 a AH right. Now, what happened is you - you drive on, 22 you could-23 your mothiks driving, made a left at the Admiral 23 A Yes.sir. 24 station, and came back to the scene; is that correct? 24 a - is that correct? You indicated that the gunman was 25 A Yes.sir. 25 a black male; correct?
140 141
~ 1 A Yes.sir. 1 BY MR. PIAZZA: 2 a Black cargp pants; correct? 2 Q Showing you Officer Bush's report. if you'll read this 3 A I'm not sure about that; probably. 3 to yourself. 4 a And a shaved head; is that correct? 4 A Okay. 5 A Yeah, he was bald. Yes. 5 Q Does that refresh your memory? 6 a Okay. And you Indicated that the driver had a beard, 6 A I probably said it at the time. 7 husky, and maybe even wearing a red or blue hat, is 7 Q Okay. CE or GE, but today, you have no memory; is 8 that correct, if you remember that? 8 that-9 A It's accurale - 9 A Yes, sir. 10 Q Okay. 10 Q All right The photograph that was shown to you, was 11 A - but rm not sure. 11 it this one - exhibit - Proposed 7? Proposed 7, 12 Q You also was [sic} asked that -whether or not you 12 you're not saying this is the vehicle. You said It 13 observed any license plate; is that correct? 13 Just looks similar to -14 A Yes, sir. 14 A Yes.sir. 15 Q And you did make an attempt to look at a license plate 15 Q -in color? 16 of a vehicle; is that correct? . 16 A Yes.sir. 17 A Yes,sir. 17 Q Okay. Now, that is- in the photograph, it's a Jeep, 18 Q And you gave a couple letters to the police at the 18 but there's various models of Jeep. You've got a 19 scene of what you thought you saw; is that correct? 19 Commander, Liberty, Patriot, you know, you cani 20 A Probably, yes, sir. 20 describe to us today what kind -21 Q And that would be either CE or GE, those letters; is 21 A No,sir. 22 that correct? 22 Q - of Jeep? All right. You indicated you picked or 23 A I'm not sure about that. 23 counted some sheU casings at the scene; is that
~ 24 MR.PIAZZA: If I may approach? 24 correct? 25 THE COURT: You may. 25 A Yes, sir.
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a And, you kmow, 10 or so, approximately, is that about a At some point in time, one officer - one detective had 2 what- I 2 you to a side and talked to you; is that correct? 3 A Yes, sir. 3 A Yes, sir. 4 a You indicated you were in criminal justice class or 4 a And that was in the hallway; is that correct?
:~ 5 something? 5 A Yes, sir. l
6 A I-yes, sir. 6 a And that was away from other officers; is that correct? 7 a Are you still in criminal justice classes? 7 A Yes, sir. 8 A No,sir. 8 a You originally was talking to, what, two officers? 9 a All right. Yf u were - then you went home; correct? 9 A Yes, sir. 10 A Yes, sir. , 10 a But he pulled you aside alone, talked to you without 11 a You went hpme, and you - either yourseH or your 11 the other officer present; is that correct? 12 lllOlher 1 a phone callto come- to lhe 12 A Yes, sir. 13 Saginaw P lice Department at 612 Federal; is that 13 a All right. After that conversation you had with that 14 correct? 14 officer, you walked down a hallway; is that correct? 15 A Yes, sir. I 15 A Yes, sir. 16 a And you ~ your mother went down there; is that 16 a And you were asked to look at two single individuals 17 correct? ! 17 sitting in two separate rooms; is that correct? 18 A Yes, sir. ! 18 A Yes, sir. 19 a And while ti 1ere, a detective or a police officer did 19 a Asking whether or not you recognized any of those 20 interview ye u; is that correct? 20 individuals? 21 A Yes, sir. 21 A Yes, sir. 22 a You know, hey gave - took a statement, and, 22 a And you did that; is that correct? 23 basically' It e same things you're telling us here; is 23 A Yes, sir. 24 that correctf 24 a And you came back and told that you doni recognize 25 A Yes, sir. ' 25 either one of them; is that correct?
144 145
-~ A Yes, sir. A Yes, sir.
2 a Okay. No'-1- and in one of the reports indicates 2 a And the person you said that - you know, the actual 3 that - is ~n, says that you 1Ded one of the 3 shooter at the scene that you cannot identify was 4 people in ttr9 as the shooter. That's not correct, is 4 ·standing over this Hispanic male at one time, or not? 5 It? 5 A Yes, sir. 6 A Right. 6 (Off-the-record discussion held.) 7 a You did not1identify anybody as the shooter; is that 7 MR.PIAZZA: Okay. If I might have a brief
I
8 correct? 8 moment here, Your Honor. 9 A No, sir, I di~ni. 9 BY MR. PIAZZA: 10 a So if a poli~ officer or detective would say that you 10 a When you were shown this photograph here, Proposed 11 did identify omebody as the shooter, that would be 11 Exhibit 7, you were not shown a series of photographs 12 incorrect; isl that correct? 12 to have you, you know, pick out any particular vehicle; 13 A Exactly. I 11B1T1ed similarities to It, but not exactly 13 were you? 14 100 perceni. 14 A No,sir. 15 a Okay. So you did not identify anybody as the proposed 15 a And when you walked down that hallway at 612 Federal, 16 shooter? 16 at the police station, there was one individual in one 17 A Exactly. 17 room alone, and one individual in another room alone; 18 a Okay. You !also said it was very hot that day? 18 is that correct? 19 A Yes, sir. 19 A Yes, sir. 20 a And this ve~icle you - you describe here leaving the 20 MR. PIAZZA: Thank you. I have no further 21 scene, I wopld imagine; correct? 21 questions. 22 A Yes, sir. ! 22 THE COURT: Anything else, Mr. Van Norman? 23 a But you dldjnot see the person that did the shooting at 23 MR. VAN NORMAN: Just a few, Your Honor. 24 the scene *1ually get into that vehicle, did you - is 24 25 that correct? 25
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a 2 A 3 4 s a 6 A 1 a 8 9 A 10 11 12 13 a 14 15 16 17 18 19 20 21 22 23 24 25
2 3 4 5 6 7 8
Mm-hmm.
- okay? So I'm here. And shooting takes place ~· • Do I just sit there and let them see me? I mean, I watch a lot of TV. Okay. They usually shoot witnesses. ,
Okay. So you were concerned - you were concernr about being seen by the shooters; correct? Concerned with being seen, concerned with a stray: bullet coming through my car, concerned with runni~g over a man that was already shot, concerned with ..; yeah. And it's safe to say that if you were concerned they see you, you were concerned they would retaliate , somehow, either immediately or some point after that?
MR. PIAZZA: Objection, Your Honor.· I doni see the relevancy of this at this particular point in time.
MR. CRAWFORD: I join in that, Your'Honor. THE WITNESS: I doni even know w~at you
asking. · · THE COURT: Nope, because I'm goilg to
sustain the objection. J '
MR. VAN NORMAN: Thank you, Yo~r Honor. No ! further questions.
160
this cause here pending shall be the truth, the who~ truth, and nothing but the truth, so help you God?
1
MS. WATKINS: Yes. MS. LEWIS: You can take the witne$s stand.
ROSEi WATKINS, Being first duly sworn at 3:24 p.m., testified under . oath as folows:
DIRECT EXAMINATION 9 BY MR. VAN NORMAN: 10 a Ms. Watkins, good afternoon. Would you state yo11r ful 11 name for the record, please? 12 A Rosel Lee Watkins. I
13 a Ms. Watkins, I want to direct your attention to Jun121 14 of last year, Fathel's Day. Do you recall that date. 15 A Yes. 16 a And want to direct your attention further to the eany 17 afternoon hours, sometime between 1 :15, 1 :30. 09 you 18 recall that particular time? I 19 A Yes. 20 a Do you recall where you were at that point in time1 21 A Yes. 22 Q And where were you? 23 A Coming home from the cemetery. 24 a Okay. And did that journey home from the cemetEl!'Y take
I 25 you to Cumberland Street? ·
162
THE COURT: Questions, Mr. Crawford? 2 MR. CRAWFORD: No questions, Your Honor. 3 THE COURT: Questions, Mr. Piazza? 4 CROSS-EXAMINATION 5 BY MR. PIAZZA: 6 a You ind'icated you observed two truQks, one burgundy and 7 one gray or silver; is that correct? 8 A Yes. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 .22 23 24 25
A a
A Q
A a
A a
A a
A a A Q
MR. PIAZZA: Okay. Thank you. THE COURT: Anything else on that? MR. VAN NORMAN: No, thank you, Your Honor. THE COURT: You may step down. THE WITNESS: Thank you very much. Can I go
to work? Because I'm not getting paid right now. THE COURT: Ms. LitUe? THE WITNESS: rm sorry. Can I go to work? THE COURT: You're excused. THE WITNESS: Thank you, sir. (Witness excused.)
••• THE COURT: Call your next witness. MR. VAN NORMAN: Thank you, Your Honor. The
People would call Rosel Watkins to the stand. MS. LEWIS: Please raise your right hand. Do
you solemnly swear thet the testimony you shall give in
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Yes. And did it take you -were you there about that time, say sometime between 1 :15, 1 :30 that - that particular day? Yep. Now, you said you were coming home from the cemetery. Did you - were you - did you have anybody with you? Were you visiting alone or did you take someone along? My eight-year-old grandson. And when you were on Cumberland Street do you recall, were you traveling toward HoHand or away from HoRand? Towards Holland. Okay. So if my geography's correct, you were traveling north; right? Yep. Okay. As you approached the intersection or as you got toward the end of Cumberland Street, not quite to the end, did there come a time when you - something got your attention? Yes. And what was that? Three men. Okay. When you say ihree men,• you're traveling north, so I'm going to deduct that you're in the right-hand lane; correct?
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A rm going this way. three people outside this car? 2 Q Okay. 2 A Yes. 3 A And they was on that side. rm on this side. 3 Q Do you recall the car itself? Do you remember what it 4 Q So they wer• on - somewhere to the left of you? 4 looked like or what kind of car it was?
~ 5 A Yeah, and I ,vas on this side. They was on that side.i 5 A Gray, silver Jeep, whatever you call those things. 6 Q Okay. And do you recall - K you know, do you recallf 6 Q Ms. Watkins, rm going to show you what we've had 7 were they in the roadway, were they off the road 7 m8lked as People's Proposed 7 and People's Proposed 8 somewhere? 8 Exhibit 8. 9 A It was like Ille road going this way, this way. rm 9 A That Qndk:ating.) 10 going this way. 10 a Okay. Now, this is the -were you looking at -11 a Mm-hmm. 11 A That's what I saw. 12 A They was on this side of the road, like, right here in 12 a Okay. This vehicle, did you -13 the grass, whatever .. There's a buikling right there, 13 A That's the same vehicle; ain't it? 14 there was a vehicle parked there, the men was right 14 a Same vehicle. Okay. 15 there. 15 A Okay. 16 a Okay. So they were off - they were off the street, 16 a And this was the vehicle that you saw? 17 itself? 17 A Yes. 18 A Right, they were not in the street 18 a Now, you've indicated that - did you see the two 19 a And what. hnything, did you see happen? 19 people that were - other than the person that was 20 A I saw one man shoot a man. 20 shot, did you see the other two get back in that 21 a Okay. 21 vehicle? 22 A And the man bent over. And the one man got back '1 the 22 A One got in, and then one went around and got in. 23 vehicle. The other man walked up and kept ~ng 23 a Okay. And the one that got in, could you tel, was it 24 him. . 24 the driver's side that he got in, if you recall? 25 Q Okay. So if I understand this, there were, apparerittf, 25 A Yeah, the first guy, yeah.
' '
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r-'\ 1 a Okay. Lers talk about the individual that got in the A It passed me. 2 driver's seat Did you get a good look at that person? 2 Q Okay. 3 A After I saw what happened, I realy was worried aba!Jt 3 A It kept going. 4 my grandson. 4 a Now - and I want to focus on the individual that 5 a Okay. Before- and I presume, by that statement, your 5 was - that you saw get back into the driver's side. 6 Intention was to get- get away from the area? ' 6 Didn't get a look at his face, really; correct? 7 A Right 7 A No, I didn't pay attention. I wasn't really- after I 8 a Okay. Before you got away from the area, rm 8 saw what happened and came down, It was Just - I was 9 gathering, did you -what kind of look did you get at 9 too nervous and afraid. 10 the man? Did you - were you able to observe his ffl(:e? 10 Q Could you tell us whether thet person was a tall man, 11 A No, I didn't. I was, like, actually trying to put my 11 like - like Mr. Gaertner, or someone maybe my height 12 car in gear to tum around because I didn't want to . 12 or somewhere in between? 13 pass. 13 A He wasn't a real tall person. 14 a Okay. 14 a It wasn't a - so he - if we - if someone said he was 15 A So there was a car behind me, so I was backing my hand 15 six.four, six.five, was that the kind of person you 16 for them to back back so I could back back, becau$8 it 16 saw? 17 was Ike they was on me. 17 A Six-four, six-five. That's tall. 18 a Okay. 18 a Yeah. 19 A So I just turned my car around and came back the way 19 A To me, It is, but I don't think they was that tall 20 that I came. And when I looked In the mirror, the 20 a Could you tell anything about his build? Was he stocky 21 vehicle was behind me, so I just mashed on my gas and 21 or heavy, or was he skiMy, somewhere in between? 22 ran off the road and laid on my grandson. 22 A In between. 23 Q Okay. And do you know where the vehicle went? 23 Q Okay. So, for lack of a better phrase, a normal build?
,,-..., 24 A No. 24 A Yeah. 25 a Did It pass you or did It puU up behind you? 25 a This wasn't somebody that was weighing in at three,
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a 2 A 3 a 4 A 5 a 6 7 A 8 a 9 10 A 11 a 12 13 A 14 a
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And this was roughly on June 23; correct? I don1 know exacUy what day that was. H was a few days after? Yeah, It was a few days after. And, while these officers were at your house, they showed you a photo lineup; correct? Yes. And there were roughly six or seven people in that I photo lineup; correct? Mm-hmm. . I
And you looked at that photo lineup - I believe It wif two different lineups you looked at; correct? · Yes, I had. And you were unable to identify anybody in those pljoto lineups; correct? i
Yes. Do you remember specifically what you told the offiders
I
when looking at those photo lineups? Not really. , Okay. Did you - do you recall possibly saying !
anything of the effect tha~ the people in these photof are too skinny? Nope. You don1 recall saying that the peopleNope.
172
officers; is that correct? Yes. All right. And you gave them the information that you're relating to us now; is that correct? Yes. And indicated that the - you indicated It was, what, some type of Jeep; is that correct? Yes. Okay. Did you tell the officer that It looked like a newer Jeep, approximately, like, a 2013 or something? h looked like a new Jeep? I doni know the difference, new, old. I know It looked like a Jeep. Okay. Hwas a box. Okay. Some boxy type vehicle; correct? h was the one that I saw -Okay. - on that picture. You didni write down a license number? No, I didn1 even see a license number. Yeah. And I take It that you didn't because of your concern for your grandson -Which is true. - you didn1 want to be around there; is that correct1
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Q - who were involved? 2 A I don1 remember saying anything about the photos, 3 because I don1 know nobody on them. 4 a Okay. But you didni make an identHication? 5 A No. 6 Q And you definltively told those officers you don't know 7 who was involved in this? 8 A Right. 9 Q And the reason you don1 know who was involved is 1 O because you didn1 get a chance to get a clear look at 11 the people; correct? 12 A Which is true. 13 Q And that was because you were concerned with your 14 grandson, and you were concerned for your own safety; 15 correct? 16 A I know, you're right. 17 MR. CRAWFORD: No further questions. 18 THE COURT: Questions, Mr. Piazza. 19 MR. PIAZZA: Thank you, Your Honor. 20 CROSS-EXAMINATION 21 BY MR. PIAZZA: 22 a Good afternoon, ma'am. 23 A Hello. 24 Q Just a couple questions. You indicated that you looked 25 at some photographs and you also talked with a couple
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1 A Right. 2 a You also talked with the officers, you know, that day 3 and also a couple days later, and told them that you 4 thought that the shooter had a bald or shaved head; is 5 that correct? 6 A Short cu~ looked short cut. 7 a Did you say bald? Did you tell the officer that? 8 A Probably said it, but It was short cut. I didn1 -9 MR. PIAZZA: ff I may approach, Your Honor? 10 THE COURT: You may. 11 BY MR. PIAZZA: 12 Q Showing you the report of Trooper Montgomery. When you 13 were shown the photographs, did you tell the officer 14 you were not able to identify the photos of either 15 suspect. 16 Rosei did state, however, that the shooter 17 looked like he had a bald head. 18 Did you say that? 19 A Yeah. h looked like he had a bald head. 20 a And also, to Officer Bush - an Officer Bush, you 21 indicated in reference to the suspect with the gun, he 22 also had a shaved head. 23 Did you say that at that time? 24 A Probably did. I was -25 Q Okay.
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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW
PEOPLE OF THE STATE OF MICHIGAN
vs.
DOMINIQUE ARNETT RAMSEY , TRAVIS TRAVON SAMMONS,
File No. 15-041847-FC-5 File No. 15-041848-FC-5
Defendants. _ _________ _____ __ !
JURY TRIAL - VOLUME III OF IV
BEFORE THE HONORABLE DARNELL JACKSON, CIRCUIT JUDGE
Saginaw, Michigan - January 26 , 2016
APPEARANCES:
For the People:
For Defendant: Ramsey:
For Defendant: Sammons:
Reported by:
DANG. VAN NORMAN (P34222) ASSISTANT PROSECUTING ATTORNEY 111 S. Michigan Avenue Saginaw, MI 48602 - 2019 (989 ) 790-5330
ALAN A. CRAWFORD (P74474) LAW OFFICES OF ALAN A. CRAWFORD , PLLC 120 N. Michigan Avenue, Ste. 303 Saginaw, MI 48602-4236 (989) 355-1717
JAMES F. PIAZZA (P30172 ) ATTORNEY AT LAW 803 Court Street Saginaw, MI 48602 (989) 791-1813
ESTELLE B. PRZYBYLSKI, CRR , RMR, CSR-3789 Official Court Reporter
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0 1 I N D E X
2 WITNBSSES FOR THE PEOPLE: PAGE
3 KANtJ1 VIRANI, M.D.
4 Direct Examination By Mr. Van Norman 14 Cross-Examination By Mr. Piazza 28
5
6 DAVIP RIVARD
7 Di~ect Examination By Mr. Van Norman 31 Crpss-Examination By Mr. Crawford 48
8 Cress-Examination By Mr. Piazza 50 Re~irect Examination By Mr. Van Norman 58
9
10 People rest 59
11 * * * 12
13 PAGE /~
14 Defense (Ramsey) rests 59
15 Defense (Sammons) rests 60
16 Motion for Directed Verdict (Ramsey) by Mr. Crawford 61
17 Ruling of the court 63
18 Motion for Directed Verdict (Sammons) by Mr. Piazza 63
19 Ruling of the Court 64
20 Closing Argument by Mr. Van Norman 68
21 Closing Argument by Mr. Crawford 92
22 Closing Argument by Mr. Piazza 99
23 Closing Argument by Mr. Van Norman 115
24 Jury Sworn by Ms. Bidwell 162
25 * * *
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EXHIBITS:
PX 9 PX 10 PX 11 PX 12 PX 13 PX 14 PX 15 PX 16 PX 17
Certified Conviction (Ramsey) Certified Conviction (Sammons) Miranda Waiver (Sammons) Blow-up - Jeep Photograph - Autopsy Photograph - Autopsy Photograph - Autopsy Photograph - Autopsy Photograph - Autopsy
* * *
3
RCVD
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1 MR. PIAZZA: No objection. 2 THE COURT: Exhibit 11 wiU be admitted as it 3 relates to Defendant Sammons. 4 BY MR •. VAN NORMAN: 5 Q When - after you completed the initial Mirandization 6 [sic] procass, he agreed to continue the interview; 7 correct?. 8 A Yes. 9 Q And wha~ ff anything, did he tell you with respect to 10 a gray JEjep Commander, if you recaU? 11 MR. CRAWFORD: And, Your Honor, at this time, 12 I'd object on behalf of Defendant Ramsey. Anything 13 that Mr. Sammons said is hearsay, cannot be used 14 against ,Y client. 15 ' THE COURT: Mr. Van Norman? 16 MR. VAN NORMAN: Leave the Court to its 17 discretia,, Your Honor. 18 THE COURT: Weft, rm not sure what the 19 testimony is going to be, but ladies and gentlemen, ff 20 you find that there were any statements made by the 21 Defen~ Sammons, it cannot be used against the 22 Defendairt Ramsey in any way when you decide if he is 23 guilty or Innocent of the crimes he's aDeged to have 24 committed. Proceed. 25 MR. VAN NORMAN: Thank you, Your Honor.
36
1 THE COURT: Mr. Crawford? 2 MR. CRAWFORD: No objection, Your Honor. 3 THE COURT:. Mr. Piazza? 4 MR. PIAZZA: May I see it? H I might voir 5 dire, Your Honor?
. 6 THE COURT: You may. 7 MR. PIAZZA: Did you take this picture? 8 THE WITNESS: No, I did not
9 MR. PIAZZA: Did you go out to the garage and 10 look at the vehicle yourseft? 11 THE WITNESS: Yes, I did. 12 MR. PIAZZA: Okay. No comment, Your Honor. 13 THE COURT: Exhibit 12 wiH be admitted. 14 BY MR. VAN NORMAN: 15 Q Sergeant, rm approaching you with People's - what 16 have been admitted as People's 7 and 8. Can you 17 identify those? 18 A These two pictures are pictures of the Jeep as well, 19 but different angles.
20 a What, ff anything, did Defendant Sammons say about his 21 presence in the Jeep? 22 A That he was a passenger in the Jeep. 23 Q Did he say anything - in addition to being a 24 passenger, did he say how - how -who was driving the 25 Jeep?' '.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. VAN NORMAN: Q Did - do you recaU if Defendant Sammons indicated to
you any knowledge of the ownership of the Jeep in question?
A Yes, he did. Q And what did he indicate, if you recall? A That it was Mr, Ramsey's girlfriend's vehicle. a Okay. And did you have occasion to obtain or review a
Secretary of State running of the plate, if you wil? A ldid. a Okay. And you got that plate number from the vehicle? A Correct.
MR. VAN NORMAN: Approach the- approach, Your Honor?
THE COURT: You may. BY MR. VAN NORMAN: Q Sergeant rm showing you People's Proposed 12. Can
you identify that? A Yeah. This is a picture of the Jeep that Mr. Ramsey
and Mr. Sammons was [sic] stopped in that day. a Okay. And that is a picture of what view of the Jeep? A It Is a picture of the back view showing the Michigan
registration plate.
A a
A
a A a
A a
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MR. VAN NORMAN: Move for admission of People's 12 at this time, Your Honor.
37
He Indicated Mr. Ramsey was. And what, If anything, did he indicate about how long or where -where they had gone, that sort of thing, riding around in the Jeep? He explained that he was picked up approximately 10:30, 11 :00 that morning by Mr. Ramsey, and that they drove around the city of Saginaw until they were stopped by the police. Did he, at any time, talk about going to Birch Park? He did. He did. Now, there came a time during that same session when you met with or interviewed somebody by the name of Dyjuan Jones; correct? Correct. And just -when you first met up with Mr. Jones, who was present with him, if you recaD? I actually met Mr. Jones in the City Police Department hallway. Okay. Wasn1 alone at that time or was he with anybody? He was alone. I do .believe he was corning from the restroom. Okay. And just in police parlance, what is a show-up? A show-up is a way for us as investigators to help identify possible suspects to see if we're looking in
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i h~gg- around the outer perimeter of the building on the 2 a Okay. d there may be variations on the theme, but 2 second floor, and then on the inside, there Is a bigger 3 the bas' procedure consists of what? 3 room. The bigger room on the inside in the middle of
0 4 A Of an i • '. that we might be - believe is 4 the building consists of cubicles where the detectives 5 involved In a crime, of showing the witness that . 5 have their offices set up.
• • 1
6 individual to see H they identify them as being the 6 On one end of that, we have an interview 7 personi~. 7 room, which we call Interview Room 1. On the outside 8 . a - And did you, in fact, conduct a show-up Involving 8 perimeter of this, where the hallway goes around, 9 Mr.Jone~? 9 there's several other offices, and that's where other 10 A I did. I 10 detective offices are. And we also have interview i 11 a And the people that you had - or you had show up or 11 rooms - what we call Interview Room 2 and Interview 12 had him tevlew, who were they; do you recall? 12 Room3. 13 A Mr. Saminons and Mr. Ramsey. 13 Q Now, with respect to those last two, were the - were 14 Q Okay. Npw, I want you to try and walk me through this 14 the defendants placed in those two rooms? 15 a little 1: are - this is all at the Saginaw 15 A Yes. 16 Ponce ent on Federal; correct? 16 Q And Just to put it in context, if you're standing at 17 A Correct.' 17 the end of the hallway - or an end of the hallway, 18 Q And as I /understand - well, strike that. 18 where would Interview Room 2 be? 19 Would you describe where you were standing at 19 A To your left Try to envision a rectangle, and inside 20 one pokf when you discussed this with him? 20 the center of the rectangle is where the detective 21 A The ~ department has a couple floors to it. The 21 offices are. And inside to the left will be a room 22 first floor is designated for the uniform officers, 22 approximately 10 by 12, which would be interview room 23 where lt1ey begin and end their shifts. On the second 23 No. 2. 24 floor Is administrative and the detective offices. 24 Q And Interview Room 3? 25 n you could visualize a hallway thal goes 25 A Would be diagonally across that on the outside outer
40 41
/""""\ 1 wall of the hallway. That would be Interview Room 3, 1 Mr. Ramsey was in Interview Room 3 to my right. 2 approximately the same size. 2 Q And what if anything -well, were the -was there 3 Q Now, fro,m your vantage point just so I understand it, 3 any special identification with respect to these 4 the procj3dl.Jre that was employed was what? 4 defendants? They were wearing street clothes; correct? 5 A rm sofl)i? 5 A They were wearing the clothes that they were brought in 6 Q Well, strike that. I'm ahead of myseff. You placed 6 with. 7 the defendants in the same room or separate rooms? 7 Q So they weren't wearing any type of other uniforms or 8 A Interview Room 2 had Mr. Sammons placed in it. 8 identifying -9 Interview Room 3 had Mr. Ramsey placed In it. 9 A No. 10 a n I put myself in your vantage point, Interview Room 2 10 a Were they restrained or handcuffed in any way? 11 would bf some distance from where you're currently 11 A No. 12 located to the left; correct? 12 Q Other than being in the room, there were no - nothing 13 A Yes. 'ft18 hallway is approximately about the length of 13 chaining them to any furniture or anything like that? 14 the courtroom this way. It's about 11, 12 yards long. 14 A Correct •. 15 And if - from your position, as Jurors, if you were 15 a So, to a civllian eye, it would just be a guy in each 16 looking, interview room left - to your left would be 16 room-17 lntervieW Room 2, and a little bit dm'{~ and to the 17 A Correct. 18 right would be Interview Room·3. 18 a - sitting down? And do you know if they were seated 19 a From your vantage point, Interview Room 2 would be this 19 or standing, or did you have -20 way? 20 A Seated. 21 A To my left. 21 Q Now, at some point, what if anything, did you have 22 Q Interview Room 3, this way? 22 Mr. Jones do? 23 A To my ""1t, Correct. 23 A I met Mr. Jones in the hallway. I should first back up
.~ 24 Q And, ag~n. which defendant was in which room? 24 to explain that this was a very ongoing, instantaneous 25 A Mr. Sammons would be in Interview Room 2 to my left. 25 investigation from the time of the caR of being
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advised that there's a homicide to that we had I
suspects- possible suspects at the PD and possible witnesse$ at the PD. Things have moved relatively fast in an i~n of this nature.
1 We were trying to determine whether or not the indiJciuals that we had detained were, in fact, the possl~ ~spects. I was advised that other detectives had Inter' 'ewed Mr. Jones. .
I MR. PIAZZA: Objection, Your Honor, to what
other ~es said. I THE COURT: I don't believe he said what they
said. He said he was advised that they interviewed so~. Ovenule the objection. Proceed.
j THE WITNESS: . Mr. Jones was interviewed by another detective. As that was going on, we were trying to ~ine whether we had the correct indi~ as suspects in our police department or not. CoQtacted the prosecutofs office and indicatad what we~ like to do is a show-up to help us identify if we ~e looking in the right direction or not.
1 At that point, Mr. Jones, I do believe, was - rdieved himself In the restroom, came out in the hallWay. And what I asked Mr. Jones to do is to walk down the hallway, look in Interview Room No. 2 and Interview Room No. 3 and return back to me. Upon doing
44
1 A Nine to '811 yards. 2 a Okay. So 27 to 30 feet? 3 A Approximately. 4 a A little further back than where I'm at now? 5 A Little fur!her, yeah. 6 a Okay. And Interview Room 3, as I understand it is not 7 immediately across from Interview Room 2; correct? 8 A Correct, that would be about 11 to 12 yards down to 9 yourrighL 1 o a And did Mr. Jones walk down the hal? 11 A He d'td. 12 a Did he look in each of the interview rooms? 13 A He did. 14 a Did he return to you at that point? 15 A Hedid. 16 Q Did-what, if anything, did he say to you? 17 MR. PIAZZA: Objection, Your Honor, hearsay, 18 and for reasons previously stated prior to the trial. 19 THE COURT: And pursuant to my earlier 20 rulings, II allow it pursuant to Rule 801 (d)(1 )(C). 21 MR. VAN NORMAN: Thank you, Your Honor. 22 BYMR. VANNORMAN: 23 a Your answer? 24 A . Mr. Jon~s indicated to me that the individual in Room 2 25 was the shooter.
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SO; rd like him to - if he knew who was in the rooms, how he knew them by.
3 BY MR. VAN NORMAN: 4 a Did you indicate to him any knowledge you had or any -5 any information you had regarding either of these 6 7 8 A 9 a 10 11 12 13 14
defendants' involvement in any - any criminal activity of any kind? No, ldidnoL Did you suggest to him, in any way, with.facial expressions, gestures, anything, that either of these . defendants should be identified or were connected with anything? Did you say or do anything that told Mr. Jones or communicated to Mr. Jones what, if anything, he should say?
15 A No. The question was to look in the rooms to see if he 16 knew who they were and how he knew them. 17 Q And what did he do after you communicated that to him? 18 A I watched him walk down the wan - hallway. He looked 19 20
into room No. 2, looked into room No. 3, and then returned to me.
21 Q Okay. Now, just so that I'm clear, and again, we'll go 22 back to that example. If you're at the end of the 23 hall, or some spot in the hall, Interview Room 2 is how 24 far down - it's to the left side, about how far from 25 where you're located now?
1 Q
2 A a a 4 5 6 A 7 Q
8 9 10 A 11 Q
12 13 14 A 15 Q
16 17 18 19 20 21 22 23 24 25
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And the individual in Room 2 was whom? Mr. Sammons. Okay. And this is the same Mr. Sammons that had indicated to you he was a passenger in the Jeep; correct? Correct. Sergeant, in the course - I don't think I asked this, and I apologize if I did. How long have you been an officer? Over 20 years with the state police. Okay. Have you had occasion, in the course of that 20 years, to do general investigations with respect to . homicides? Yes. And in your experience, your training -with your training and in your experience, how often is a murder weapon recovered?
MR. PIAZZA: Objection, Your Honor. I don't see the relevance that is relating to this particular case. The question is whether or not it's - you know, one was found in this case or not. What other cases had, each individual case is different.
MR. CRAWFORD: I join in that, Your Honor. MR. VAN NORMAN: Doofs been opened by
Mr. Piazza in his previous questioning when he talked
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At a session of said Court ~n the Saginaw, State of Michigan on this~ day
I. N
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Following a two-part preliminary exami ·on before the Hon. A.T. Frank of the 70'1' District Court, Dominique Ramsey (".R.amseyj Travis Sammons ("Sammons") (collectively "Defendants") were bound over for trial on one unt each of Conspiracy, Open Murder and Possession of a Firearm by a F•Ion and three unts of Possession of a Firearm during the
' Commission of a Felony. The actions are now be the Court on five pretrial motions filed by Sammons, namely, (l) Sammons' Motion to • • (2) Sammons' Motion to Suppress the Identification, (3) Sammons' Motion in · · Re: Identification, (4) Sammons' Motion in Limine Re: Videotapes and (S} Sammons' Moti for Separate Trials. Ramsey has also filed the following ttm,e pretrial motions which are y befole the Court: (1) Ramsey's Motion to Quash All Counts, (2) Ramsey's Motion for of the Parties and (3) Ramsey's Motion in Liminc to Bxcludo any Testimony or Refem1cc Carlos Delgado. After having heard the oral arguments of counsel in open Court on January , 2016 and having thoroughly reviewed the preliminary examination transcripts together with parties' briefs and the applicable law cited themn, the Court will grant Ramsey's Motion in · · to Exclude any Testimony or Reference to Carlos Delgado and deny all remaining motions
n.
victim"). At approximately 1:30 p.m. on June 1, 201S, seventeen-year--old Dyjuan Jones ("Jones") and his mother, Felicia Little ("Little"), traveling down Cumberland Street in the City of Saginaw in Little's vehicle when they a loud noise that initially sounded like firecrackers. (PB Trans, Vol I at 20). Jones, wu riding in the backseat of his mother's vehicle, observed a light gray Jeep ("suspect vehic ") in the area of where the noise was coming ftom. (PB Trans, Vol I at 21). Jones also observed African-American male in the driver's seat of the suspect vehicle and another lighted-compl "oned African-American male outside of the vehicle; both men were wearing white shirts. (P Trans, Vol I at 22). Jones then saw the man who was on the outside of the suspect vehicle t three times at the vietim who was walking down Cumberland. After the initial shots, the er's gun apparently jammed and the victim tried to get away. Approximately five seconds la , the gunman fired several more shots at the victim before he re-entered the suspect vehicle. suspect vehicle then sped away from the scene at a high rate of speed. (PB Trans, Vol I at 25).
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I After the assailants left the area, Jones and is mother exited their vehicle and attempted
to aid the victim. A short time later, the Saginaw olice Department and paramedics arrived at the scene. Despite efforts to resuscitate him, the · died at the scene at approximately l :4S p.m. (PE Trans, Vol I at 44-47).
Approximately ten minutes after the s:ho<ittna occurred, Bridgeport Township Police · Officer Tyler Poirier ("Officer Poirier") initiated traffic stop ("the traffic stop") on a Silver J~ Commander near the intersection of Dixie H way and Gretchen Street. (PE Trans, Vol I at 6-11 & 18). When Officer Poirier approached vehicle, the driver, Ramsey, advised him that he did not have a valid driver's license. (PE rans, Vol I at 9). Based on that admission, Officer Poirier asked Ramsey to step out of the v · cle after which Officer Poirier conducted a pat down ofRamsey, handcutfed him and placed in the back ofhis police cruiser. (PE Trans, Vol I at 9-10). Officer Poirier then asked the ger, Sammons, to exit the vehicle. After Sammons got out of the vehicle, Officer Poirier ·cec1 that his hands were "very, very sweaty." (PE Trans, Vol I at JO). Officer Poirier also the Jeep, with Ramsey's permission, and did not locate any guns or other contraband. (PET Vol I at 11·12).
Following the traffic stop, Ramsey and ns were transported to the City of Saginaw Police Department ("the police department") they were detained for questioning regarding the homicide on Cumberland. (PE Trans, Vol I at 8-59). After being read his Miranda rights, Ramsey declined to speak with the police. (PET Vol I at 60). Sammons agreed to waive his Miranda rights and told the police that he and had spent the majority of the day riding around the City of Saginaw in Ramsey's Jeep they were stopped by the police. (PE Trans, Vol I at 62-64). Sammons, who was dressed in a • t-shirt, shorts and tennis shoes, also told the police that he bad been wearing these clothes day. (PE Trans, Vol I at 64). Ramsey was similarly dressed in a white t-shirt, blue jeans and · s shoes. (PE Trans, Vol I at 63).
Eyewitnesses Jones and Little were also tt"r l'fl!l'Vi0,ewed at the police department after the
shooting. At approximately 4:00 or S:00 that David Rivard, then a Michigan State Police Detective Sergeant assigned to the M.tjor • es Unit ("Detective Rivard"), arranged a show-up to determine if Jones could identify and Sammons from the homicide. (PE Trans, Vol I at 68; PE Trans Vol II at 87). show-up involved Jones walking down the hallway at the police department and looking a window into Interview Room 2, where Sammons was, and Interview Room 3, where was. At the preliminary examination, Detective Rivard testified that Jones identified suspect in Interview Room 2 (Sammons) as the shooter, but did not identify the suspect in ·ew Room 3 (Ramsey). (PE Trans, Vol Il at 81 & 83).
Jones did not identify either Defendant at e preliminary examination and ftlrther denied maldng a positive identification of Sammons at police department (PE Trans, Vol I at 26-
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31 ). In addition, at the preliminary examination, J described the driver of the suspect vehicle as a heavy set malet weighina at least 320 po with a long beard. (PE Trans, Vol I at 32). According to Detective Rivard, at the time of his -·""'""" Ramsey weighed ISO pounds or less and bad only short facial stubble. (PE Trans, Vol II at 85).
In the days after the homicide, Detective per Robert Scott ("Trooper Scott") visited various businesses between the scene of the crim and the location of the traffic stop to obtain surveillance video from June 21, 2015. (PE T Vol II at 94--95). Trooper Scott obtained ten
surveillance videos from different locations alo this route which all showed a silver Jeep Commander traveling along the roadway. (PET Vol II at 95; 100-102). Trooper Scott then downloaded each surveillance video onto a se:1>111'1e CD and sent all of them to the Michigan State Police Technical Services Unit to have piled into a single CD. The compilation, which Trooper Scott testified accurately reflected individual surveillance videos, was played during the preliminary examination over the o 'on of counsel for both Defendants. (PB Trans, Vol n at 103-104; 108-111).
First, Sammons argues that the police • n show-up was improper because be was in custody and it was conducted without the of counsel. In People v .Anderson, 389 Mich 1SS; 20S NW2d 461 (1973), the Michigan S e Court expanded the right to counsel to "all pre1rial corporeal identifications, including those ucted before the initiation of adversarial proceedings." People v Hicbt,an, 470 Mich 60 605; 684 NW2d 267 (2004). In Hickman, however, the Michigan Supreme Comt exp • that Anderson •s expansion of the right to counsel was not grounded in either the federal · ·on or the state constitution and had generated significant confusion regarding its application. Hickman, 410 Mich at 606, 609-610. TherefOCCt the Hickman Court overruled .A. rson and adopted the analysis of Moore v Blinols, 434 US 220; 98 S Ct 4S8 (1977), which· ·cates that the right to counsel "attaches only to corporeal identifications conducted 'at , or after the initiation of adversary judicial proceedings-whether by way of formal c ~ preliminary hearing, indictment, or arraigmnent[.]'" Hickman, 410 Mich at 607 q · Moore, 434 US at 226-227. Here, the showup took place before Defendants were formally c Therefore, the presence of counsel was not required.
Next, Sammons contends that the police the show-up where Defendants were presented
4
uld have used a corporeal lineup instead of the eyewitness individually. After Hickman,
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identifications conducted before the initiation of adversarial judicial process can still be challenged on due-process grounds. Id. at 607. " process protects the accused against the introduction of evidence of, or tainted by, unrer le pretrial identifications obtained through unnecessarily suggestive procedures." Id. quotin Moore, 434 US at 227. "An identification procedure violates a defendant's right to due of law when it is so impennissibly suggestive that it gives rise to a substantial likclih of misidentification." People v Harris, 261 Mich App 44, S l; 680 NW2d 92 (1998) citing Pea e v Gray, 451 Mich 107, 111; 577 NW2d 92 (1998). "The fairness of an identification p ure is evaluated in light of the total circumstances to detennine whether the procedure so impennissibly suggestive that it led to a substantial likelihood of misidentification." Pe le v Murphy (On Remand), 282 Mich App 571, S84; 766 NW2d 303 (2009) (quotations and "tation omitted). "(A]n improper suggestion often arises when the witness when called by the lice or prosecution is told or believes that the police have apprehended the right person." Gray, S1 Mich App at 111 (quotation and citation omitted). Also, "when, the witness is shown only person or a group in which one person is singled out in some way, he is tempted to p that he is the person." Id. (quotation and citation omitted).
However, even when an out-of-court i · cation involves an impennissibly suggestive procedure, there is no nile of automatic exclusio See Manson v Brathwaite, 432 US 98, 112· 114; 97 S Ct 2243 (1977). Instead, the televant ·on for purposes of due process is whether the identification is teliable under the totality o the cb:cumstances. Id. at 114. To suppress evidence of an out-of-court identification, "[t]he must show that in light of the totality of the cucum.stances. the procedure used was so • ·bty suggestive as to have led to a substantial likelihood of misidentification." People v Colon, 233 Mich App 29S, 304; 591 NW2d 692 (1998). In examining the totality of the • the court should consider "the opportunity for the witness to view the criminal the time of the crime, the witness' degree of attention, the accuracy of a prior description, witness' level of certainty at the pretrial identification procedure, and the length of time the crime and the confiontation." Id. at 30S.
In this case, the identification occurred wi • hours of the homicide, while the details of the crime were still fresh in the witness' mind. Ri explained that the show-up procedure was used as an investigative tool to determine if their · vestigation was headed in the right diteetion. {PB Trans, Vol I at 66). Although Defendants singled out because they were presented alone, there is no evidence that Jones was to identify either man nor was he told that the police had arrested the suspects. (PE Trans, ol n at 69). The fact that Jones identified Sammons as the gunman, but did not identify , indicates that he was relying on his memory of the crime and was not influenced by suggestiveness of the procedure. Based on the totality of the circumstances, the Court finds the out-of-court identification was ieliable
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B. n Next, Sammons bas filed a Motion in "4f111.1· - Re: Identification asking the Court to
prohibit the prosecution from presenting Detecti ·vard's testim~ny regarding the out-of-court statement of identification made by Jones at the • of trial. l
l Previously, the mies of evidence provi that the prior ,mtements of witnesses were
admissible only for impeachment purposes, not prove the substance of the prior statements. See People v Malone, 44S Mich 369, 375; 518 NW2d 418 (1994). However, MRE 801(d) reflects a departure from the earlier approach, and ows prior statements of witnesses to be used as substantive evidence in certain circumstances. /4 at 375-385. For instance, prior statements of identification are admissible as substantive evi under MRB 801 ( dXl )( c) which provides:
A statement is not hearsay if ..• [t]he dee testifies at the trial or hearing and is subject to cross-examination concerning statement, and the statement is •.. one of identification of a person made after l>eff:a·ving the person. .••
This rule permits the substantive use of any pri statement of identification by a witness as nonhemsay, provided that the witness is availabl for cross-examination. Malone, 445 Mich at 377. An out-of-cowt statement of identificati defined as nonhearsay is substantively admissible under MRE 80l(d)(l)(C), without to whether it is offered through i1s maker or a thin:l party. Id. at 377-378. Thus, an · • · police offiars testimony concerning statements of identification made by other • is admissible as substantive evidence, where the declarant bas testified subject to about the asserted identification. Sec People v Whitfleld, 214 Mich App 348, 350-351; 3 NW2d 347 (199S).
Here, the declarant, Jone5i, testified during first preliminary examination hearing and was subject to cross-examination regarding out-of-court statement of identification. Therefore, the requirements ofMRB 801(dXIXC) satisfied, and the district court properly considered Detective Rivard's testimony conoeim·m.g Jones' extrajudicial statement of identification as substantive evidence against • Although Jones denied making the out-of-court statement of identification attributed to by Detective Rivard, this did not affect its admissibility under MRE 80l(dXIXC). On the co , prior statements of identification are not limited by whether the out-of-court statement is ·ed or affinned by the declarant's testimony. See Malone, 44S Mich at 377.
Pursuant to MRE 801(dX1XC1 Detecti Rivard wilt be permitted to testify at trial concerning the out-of-court statement of identifi ·on made by Jones provided that Jones also
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testifies at trial and is subject to crosHxaminati regarding this issue. Sammons' request to exclude this evidence under MRE 403 is also d for the reason that be has not shown that the probative value of this evidence is s:ubs1tart1i·a11y outweighed by the danger of unfair prejudice.
C. ' m imine & : • In his Motion in Limine Re: Videotapes, ammons seeks a court order precluding the
prosecution from introducing the surveillance vid footage and/or any commentary based on that footage at the time of trial. Ramsey has also fil a concurrence with this Motion.
Sammons contends that the surveillance fi e should not have been admitted at the preliminary examination, and should be excluded trial, because the prosecution cannot lay a proper foundation for its admission. The tomKlali"onal requirements for the admissibility of evidence are found in MRE 901(a), which states:
The requirement of authentication or i cation as a condition precedent to admissibility is satisfied by evidence suffici t to support a finding that the matter in question is what its proponent claims.
At the preliminary examination, Trooper tt testified that be obtained surveillance footage from ten different locations as part of investigation of this case. Trooper Scott downloaded the surveillance footage from each I • on onto his personal tlasb drive. From that flash drive, be cmated a separate CD of each locati 's smveillance footage. He then sent the ten
individual CDs to the Michigan State Police Ti cal Services Unit which created a single CD that includes all ten surveillance recordings. T Scott testified that the compilation CD accurately mlected the surveillance videos that obtained from the individual locations. (PE Trans, Vol n at 102-104). 'Ibis testimony by T Scott was sufficient to "support a finding that the matter in question is what its proponent c "as required by MRE 90l(a).
Sammons also argues that the compilation is an improper summary of the individual surveillance videos. MRE l 006, regarding sununares states as follows:
The contents of voluminous writings, Jeco11GJ.Q· RS or photographs which cannot be conveniently examined in court may be in the fonn of a chart, summary or calculation. The originals, or dupli shall be made available for examination or copyin& or both, by other • at a reasonable time and place. The court may order that they be produced · court.
Here, all ten surveillance videos were convenience in order to avoid playing ten separate
7
iled onto a single CD for the sake of in court. All ten individual recordings are
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I in the possession of the prosecutor and presumabl are available for review by defense counsel. (See PE Trans, Vol n at 103). Under the · the iequirements ofMRE 1006 are met and the compilation CD is admissible in evi as a summary of the ten individual surveillance videos.
Next. Sammons asks the Court to prohib and/or commentary of the surveillance footag examination, Trooper Scott proffered some limi surveillance footage including identifying the establishment each recording came from and argues that this commentary was contrary to invade the province of the jury if admitted at 1rial.
MRE 602 provides, in idevant pmt, that: I
Trooper Scott from providing any opinion at the time of trial. At the preliminary commentary regarding the contents of the
ilver Jeep Commander, explaining which location of each establishment. Sammons 602 and MRE 701 and would improperly Court disagrees.
A witness may not testify to a unless the evidence introduced is sufficient to support a finding that the tness has personal knowledge of the
. matter. Evidence to prove personal knowl may, but need not, consist of the ... ~, ....: ..... ,.... "~- OWD--.u.u.v.uy ••••
MRE 701 states:
If the witness is not testifying as form of opinions or inference is limited to (a) rationally based on the perception of understanding of the witness' testimony or
ex.pert, the witness' testimony in the opinions or inferences which are
witness and (b) helpful to a clear determination of a fact in issue.
In this Motion, Sammons has cited to eral cases ftom foreign jurisdictions which purportedly support his request to exclude T:l'OODs Scott's testimony regarding the surveillance footage. However, the only controlling case • by Sammons is People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013). In Fomby, Court of Appeals YJ?held the trial court's decision to admit a police officer's lay opini testimony regarding the identity of certain individuals on a smveillance video. The Fomby urt found that the officer's testimony was rationally based on his perception because, althou he was not at the scene when the video was being m:ord~ his testimony was based on his ·on of the video itsel£ See Id at SO-SI. The Court further found that the testimony was priate because it provided the jury with a clearer miderstanding of what was depicted on videotape. Id. at Sl-52. Finally, the police officer's testimony did not improperly invade the vince of the jury because the officer did not identify the defendant in the videotape and no opinion on the defendant's guilt or innocence. Id.
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In the mstant case, Trooper Scott visited ~ · individual establishments between the crime scene and the traffic stop and reviewed their survf llance footage from the date of the offense to detennine if those recordings showed a silv Jeep Commander. Thus, Trooper Scott's observations about the contents of the surveill footage, and the locations depicted on the
I
footage, are based on bis own personal knowledg' and perceptions as required by MRE 602 and MRE 701. Further, Trooper Scott's commen regarding the locations on the surveillance video will assist the trier of fact in detennining the silver Jeep Commander was located around the time of the homicide. Finally, like the lice officer in Fomby, Trooper Scott did not identify Defendants on the surveillance footage and expressed no opinion on their guilt or innocence of the charged offenses. Accordingly, e Court finds that his lay opinion testimony regarding the surveillance footage was properly 0
tted at the preliminary examination and similar testimony will also be allowed at the · e of trial. Therefore, Sammons' Motion in Limine Re: Videotapes is denied.
D. ~~ti~L.W.~IIB!!
Both Defendants have also filed a Motion its discretion in binding them over for trial on the
This Court reviews a bindover decision b a district judge using an abuse of discretion standard. People v Fielder, 194 Mich App 682· 487 NW2d 831 (1992). "The standard for reviewing a decision for an abuse of discretion is w; the result must have been so violative of fact and logic that it evidences a perversity of · a defiance of judgment or an exercise of passion or bias." People v Torres, 222 Mich App 4 1,415; 564 NW2d 149 (1997).
The primary purpose of a preliminary ·on is to detennine if a crime was committed and, if so, if there is probable cause to lieve that the defendant committed it. People v Redden, 290 Mich App 65, 83; 799 NW2d 184 010). There is probable cause to bindover a defendant for trial where the prosecution presen evidence "sufficient to cause a person of ordinary prudence and caution to conscientiously tertain a reasonable belief of the accused's guilt." Id. at 83-84 ( citation omitted). Probable ca does not require proof beyond a reasonable doubt. People v Graves, 19 Mich App 103, 105; 2 I NW2d 226 (1971). Thus, "[i]fthe evidence conflicts or raises a reasonable doubt the defendant's guilt, the defendant should nevertheless be bound over for trial, at which the er of fact can resolve the questions." Redden, 290 Mich App at 84.
In bis Motion to Quash/Dismiss, Sammo challenges the district court's decision to admit evidence of()) Detective Rivard's testim ny regarding the out-of-court statement of identification made by Jones, (2) the surveillan footage and (3) Trooper Scott's testimony concerning the surveillance footage at the preli ·nary examination. Sammons contends that
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without this evidence, the remaining proofs decision to bind him over for trial.
If!?·. ~J
insufficient to support the district court's
For the reasons discussed in the earlier of this Opinion, the district court properly admitted Detective Rivant•s testimony regarding out-of-court identification, the surveillance footage and Trooper's Scott's testimony concern the contents of surveillance footage at the preliminary examination. This evidence, together ·th the other evidence presented, was more than sufficient to establish probable cause to beli that Sammons was the gunman that killed the victim. First, the out-of-court statement of id ·fication by Jones was direct evidence linking Sammons to the crime. There was also signifi t circumstantial evidence presented against Sammons, including, evidence that he was bended in a vehicle generally matching the c:lescription of the suspect vehicle approximately minutes after the shooting, be was "very, very sweaty" when stopped by the police. and dressed in a white shirt like the shooter. The fact that Jones denied making the out-of-court i tification, and failed to identify Sammons at the preliminary examination, merely created a q • on of fact regarding his guilt or innocence which will be resolved by the trier of fact at trial. the Court finds no abuse of discretion in the district court's decision to bind him over fo trial, Sammons' Motion to Quash/Dismiss is denied.
In his Motion to Quash, Ramsey argues the district court erred by binding him over for trial where there was no direct evidence implicating him in the homicide, even under an aiding and abetting theory. However "[c ]ircumstanti.al evidence and reasonable inferences arising ftom the evidence are suffici to support the bindover of the defendant if such evidence establishes probable cause." People v Whipple, 202 Mich App 428, 431-432; 509 NW2d 837 (1993). In this case, there was si • cant circumstanti.al evidence indicating that Ramsey assisted in the homicide by, at a minim providing transportation to and from the crime scene. First, Ramsey's silver Jeep generally matcbecl the description of the suspect vehicle. Ramsey was driving that vehicle when he and Sammons, the alleged shooter, were pulled over approximately ten minutes the shooting. The surveillance footage also showed a silver Jeep Commander traveling the area of the crime scene and the location of the traffic stop on the day of the shooting. At time of the traffic stop, Ramsey was dressed in a white shirt like the driver of the suspect vehi e. Although Ramsey does not have the other physical attributes of the driver (320 pounds wi a long beanf) described by ]ones, the other circumstantial evidence linking him to the • is sufficient to cause a person of ordinary prudence and caution to entertain a reasonable be of guilt. Accordingly, Ramsey's Motion to Quash will also be denied.
E. Next, Sammons and Ramsey have each fil separate motions asking the Court to sever
these cases for purposes of trial.
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A trial court bas discretion to try codefi ts separately or jointly. MCL 768.S; MCR 6.121 (D). Severance is required only when a d:'*1]l<181tt shows that severance is necessary to avoid prejudice to his substantial rights. MCR 6.1 l(C). A defendant docs not have an absolute right to a separate trial. People v Etheridge, 196 "ch App 43, 52; 492 NW2d 490 (1992). In fact, "[t]here is a strong policy favoringjoint trials the interest ofjustice,judicial economy and administration." Id·
In People v Hana, 441 Mich 325; 524 d 682 (1994), the Court set forth numerous considerations for determining when separate • for codefendants are required. Specifically, the Hana Court noted that "[s]evenmce is mandat under MCR 6.12l(C) only when a defendant provides the court with a supporting a:ffidavi or makes an offer of proo( that clearly, affirmatively, and fully demonstrates that his stt>Sttantial rights will be prejudiced and that severance is the .necessary means of rectifying the · prejudice." Id. at 346-347.
In Hana, the Court recognized that are serious negative implications for codefendants in a joint trial where each is pram a defense that is antagonistic to the other. Id. at 347. Nonetheless, the Court imposed a high standard in determining whether severance is mandated. The Hana Court ruled that ISeVC'1'llllce should be granted "only if there is a serious risk that a joint trial would compromise a i:fic trial right of one of the defendants, or prevent the jury ftoln making a reliable judgment ut guilt or innocence." Id. at 359-360.
The Court further ruled:
Inconsistency of defenses is not entJWlh to mandate severance; rather the defenses must be "mutually exclusive" or cilable." Moreover, [i]ncidental spillover prejudice, which is almost inevi le in a multi-defendant trial, does not suffice." The "tension between defenses be so great that a jury would have to believe one defendant at the expense of other."
Id at 349 (internal citations omitted). Further,"[ ] trial court ruling on a pretrial motion must have concrete facts on which to base a ruling; finger pointing does not suffice." Id. at 355.
In their respective Motions, Defendants argue that severance is necessary due to potentially antagonistic defenses. However, • Defendant has provided the Court with an affidavit, or any concrete facts, that would j · severance in order to prevent prejudice to himself or the other Defendant. There is also no • in the record at this time to indicate the existence of mutually exclusive defenses in this /case. Defendant Ramsey declined to give a statement to the police after the crimes. Altho Sammons did give a statement, he did not directly implicate himself or Ramsey in the • es. Thus, Defendants have not shown irreconcilable defenses in this case that would · severance under the standard set forth in
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Hana. Further, the factors outlined in MCR 6. l(D) do not support a discretionary severance of these matters for trial. Therefore, Defendants' uests for separate trials are denied.
F.
Finally, Ramsey has filed a Motion J Limine asking the Court to issue an order excluding any testimony or evidence pertaining Carlos Delgado, who is currently charged with several felonies, including delivery/manufactu of heroin between 450 and 999 grams, as the result of a large-scale drug operation that th police uncovered while investigating another unrelated case involving Ramsey, People v ominique Ramsey, File No. 15-041941-FC-S. Ramsey argues that any evidence concerning los Delgado should be excluded from the trial in this case on the grounds that it is irrelevant, 401, and/or more prejudicial than probative, MRE 403. In its Response to this Motion, the · on has not cited any relevant purpose for introducing evidence regarding Carlos Delgad in these matters. Accordingly, the Court will grant Ramsey's Motion in Limine to Exclude
I y Testimony or Evidence Referencing Carlos
Delgado pursuant to MRE 401 and MRE 402. I
I NOW, mEREFORE, IT IS HE Y ORDERED AS FOLLOWS:
I. Defendant Sammons' Motion to ~ISb/JlJi"smiss, Motion to Suppress the Identification, Motion in Limine : Identification, Motion in Limine Re: Videotapes and Motion for Trial an, DENIED;
2. Defendant Ramsey's Motion to 'if .. _. all Counts and Motion for Severance of the
Parties are DENIED;
3. Defendant Ramsey's Motion in L" · e to Exclude any Testimony or Evidence referencing Carlos Delgado is O
12
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
UNPUBLISHED July 6, 2017
v No. 332190 Saginaw Circuit Court
TRAVIS TRAVON SAMMONS,
LC No. 15-041848-FC
Defendant-Appellant.
Before: TALBOT, C.J., and BECKERING and M.J. KELLY, JJ. PER CURIAM.
A jury convicted defendant, Travis Sammons, of conspiracy to commit open murder, MCL 750.157a.1 The trial court sentenced him as a third habitual offender, MCL 769.11, to life in prison with the possibility of parole. Defendant appeals as of right. We affirm.
I. BASIC FACTS
Defendant’s conviction arises from the murder of Humberto Casas in the afternoon of June 21, 2015, in Saginaw, Michigan. Police charged defendant and codefendant, Dominique Ramsey, with the crime, and the same jury tried the two men. Two eyewitnesses testified to the fatal shooting at the trial. Rosie Watkins testified that she was driving north on Cumberland Street when she observed three men on the opposite side of the road. She testified that the first man shot the second man, who bent over, and the third man got into a vehicle while the first man continued shooting. Then the shooter got into the vehicle. Watkins described the vehicle as a gray or silver Jeep. Approximately 11 minutes after dispatch received a call regarding the shooting, police pulled over a Jeep matching that description. Watkins positively identified a photograph of the Jeep admitted into evidence at trial as the Jeep she saw at the shooting. In the Jeep were defendant and Ramsey.
1 The jury acquitted defendant of open murder, MCL 750.316, possession of a firearm by a felon, MCL 750.224f, and three counts of possession of a firearm during the commission of a felony, MCL 750.227b.
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Dyjuan Jones, who was 16-years old at the time of the shooting, testified that he was riding in the backseat of his mother’s car when he heard what sounded like three firecrackers going off. He looked in the direction of the sound and witnessed the shooting, including the assailant’s firing at least seven more shots into the victim, who was rolling from the sidewalk into the street in an apparent attempt to avoid being hit.2 Jones was approximately 20 to 25 feet away from the shooting. He, too, observed a gray Jeep at the scene that he agreed looked similar to the one in the photograph identified by Watkins.
The prosecution produced a composite video made from nine or ten surveillance tapes that depicted a silver Jeep Commander starting from the corner where the homicide occurred to the location where defendant and Ramsey were detained after a traffic stop. Jones described the shooter as an African-American male wearing a white T-shirt. Michigan State Police Sergeant David Rivard testified that Jones identified defendant as the shooter at a showup conducted at the police station a few hours after the shooting. However, Jones maintained that he did not identify defendant while at the police station.
The jury found both defendant and Ramsey guilty of conspiracy to commit open murder. Both men filed motions for a directed verdict or a new trial. The trial court denied defendant’s motion, but granted Ramsey’s, holding that there was insufficient evidence to convict him.3 This appeal ensued.
II. ADMISSION OF IDENTIFICATION TESTIMONY
On appeal, defendant contends that the trial court clearly erred by denying his motion to suppress the testimony about Jones’s identification of defendant at a police-station showup.4 This Court reviews a trial court’s determination in a suppression hearing regarding the admission of identification evidence for clear error. See People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). The Court reviews the trial court’s findings of fact for clear error, People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005), and its rulings on questions of law, including constitutional issues, de novo, People v Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007).
2 Felicia Little, Jones’ mother, testified that she was driving northbound on Cumberland when she witnessed the victim walking along the sidewalk, at which time the assailant walked up from around a truck and started shooting the victim, who then fell into the southbound lane of the street. She testified that two trucks were parked at the scene, one burgundy and one silver or gray. She described Cumberland as a “two-lane very small street,” and she was trying not to run over the victim as she attempted to get away from the shooting. 3 We note that this Court had denied the prosecutor’s application for leave to appeal the trial court’s decision. People v Ramsey, unpublished order of the Court of Appeals, entered December 29, 2016 (Docket No. 334614). In lieu of granting leave to appeal, on May 2, 2017, our Supreme Court has remanded the case to this Court for consideration as on leave granted. People v Ramsey, ___ Mich ___; ___ NW2d ___ (Issued May 2, 2017, Docket No. 155321). 4 A showup is “a police procedure in which a suspect is shown singly to a witness for identification, rather than as part of a lineup.” Black’s Law Dictionary (10th ed.), p 1591.
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“A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made.” People v Barclay, 208 Mich App 670, 675; 528 NW2d 842 (1995).
Defendant first asserts that absent exigent circumstances, police must use a corporeal lineup instead of a showup if a suspect is in custody. Defendant cites for support of this proposition People v Kurylczyk, 443 Mich 289, 298 n 8; 505 NW2d 528 (1993) and People v Franklin Anderson, 389 Mich 155, 186 n 22; 205 NW2d 461 (1973), overruled by People v Hickman, 470 Mich 602; 684 NW2d 267 (2004).5 Defendant’s reliance is misplaced. Franklin Anderson, 389 Mich at 186 n 22, primarily cites journal and law review articles in support of the position to which footnote 22 is appended, i.e., that to use “photographs beforehand to see whether important witnesses can identify an accused person whom they are afterwards going to see is to pursue a course which is not a proper one.” Franklin Anderson, 389 Mich at 186, quoting an English case, Rex v Gross, 17 Crim App Rep 196, 197 (1923). Parenthetical explanations in the footnote indicate that the articles distinguish photographic from corporeal identification, and generally prefer the latter to the former. Defendant makes no meaningful argument regarding how any of the articles cited support his position, and nothing in the footnote indicates that the articles collected address corporeal showups of the type at issue. Kurylczyk, 443 Mich at 298 n 8, refers to a rule set forth by the Franklin Anderson Court that “prohibits the use of photographic lineups only when a suspect is in custody or when he can be compelled by the state to appear at a corporeal lineup.” Again, however, defendant fails to explain how or why a rule that seems to prefer corporeal over photographic identification procedures applies to the instant case.
In short, the authorities cited by defendant are inapt to the extent that they address photographic showups rather than the corporeal showup conducted in this instance. Even assuming that the police should have conducted a lineup rather than a showup because defendant was in custody, defendant produced no caselaw holding that his identification at the showup must be excluded automatically.
Defendant next asserts that the showup violated his right to due process because it was impermissibly suggestive. Due process protects the accused against evidence obtained through unnecessarily suggestive identification procedures. Hickman, 470 Mich at 607, citing Moore v Illinois, 434 US 220, 227; 98 S Ct 458; 54 L Ed 2d 424 (1977). “In order to sustain a due process challenge, a defendant must show that the pretrial identification procedure was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification.” Kurylczyk, 443 Mich at 302. When examining the totality of the circumstances, a court should consider relevant factors such as “the opportunity for the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of a prior description, the witness' level of certainty at the pretrial identification procedure, and the
5 Hickman impliedly overruled Kurylczyk to the extent that Kurylczyk relied upon Franklin Anderson for the proposition that a suspect in custody is entitled to counsel. See People v Perry, 317 Mich App 589; __ NW2d __ (2016).
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length of time between the crime and the confrontation.” People v Colon, 233 Mich App 295, 304-305; 591 NW2d 692 (1998).
In the case at bar, Jones and his mother went to the police station within four or five hours of the shooting to be interviewed separately regarding the incident. At some point, Rivard asked Jones to walk down the hallway and look left and right into two interview rooms. Jones observed one male seated in each room. According to Rivard, Jones identified the man in Room 2—i.e., defendant—as the shooter. Defendant moved to suppress the alleged identification that Jones made of him, arguing that the showup violated his right to counsel and that the police should have held a lineup because he was in custody. Relying on Hickman, the trial court ruled that defendant was not denied the right to counsel because that right attaches only at or after the initiation of adversarial proceedings, and the showup occurred before defendant was charged with any crime. The court also held that the showup was reliable and declined to suppress the identification based on the totality of the circumstances even though defendant was shown to Jones individually.
Defendant contends on appeal that the showup was unduly suggestive, and thus violative of his due-process rights, because the police singled him out by presenting him to Jones alone in an interview room. The fact that a procedure is suggestive does not necessarily render it constitutionally defective. Kurylczyk, 443 Mich at 306. Rather, the procedure is defective only if under the totality of the circumstances there is a substantial likelihood of misidentification. Id. at 302. An identification procedure can be unduly suggestive when a witness is led to believe that the police have apprehended the right person or where the witness is shown only one person or a group in which one person is singled out. People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).
In the case at bar, although defendant was singled out to the extent that he was alone in an interview room, he was unrestrained and wearing street clothes, and there were no improper suggestions from Rivard that the police had arrested anyone for the shooting or even that defendant and Ramsey were suspected to be involved in the shooting. In fact, Jones agreed that Rivard did not indicate who the men were and only asked him to see if he knew who was in the rooms, and if so, how he knew them.6 Thus, to the extent that defendant’s appearing in a room
6 Rivard testified at trial that he did not indicate to Jones that he had any knowledge or information regarding either one of the persons in the rooms with respect to their involvement in criminal activity. Rather, Jones was being interviewed by another detective about the shooting when he stepped into the hallway to use the restroom. Rivard then asked Jones to walk down the hallway, look into Interview Room 2 and Interview Room 3, and return to him, at which time he asked Jones if he knew who was in the two rooms, and if so, how he knew them. Rivard testified that he did not suggest to Jones, using facial expressions, gestures, or anything, that either defendant or Ramsey should be identified or were connected with anything. According to Rivard, Jones walked back to him and stated that the individual in Room 2—defendant—was the shooter.
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alone was suggestive, there is no indication that comments or actions by the police rendered the identification procedure unnecessarily suggestive.
Further, we conclude that the trial court correctly reasoned that there was not a substantial likelihood of misidentification under the totality of the circumstances. Jones witnessed the shooting and identified defendant as the shooter within hours of the event, when the details of the crime would still be fresh in his mind.7 Moreover, that Jones identified defendant as the shooter but not Ramsey as the getaway driver—or in any way involved, for that matter—supports the trial court’s reasoning that Jones relied on his recollection of the event and was not influenced by the suggestiveness of the procedure.
Based on the foregoing, we conclude that the showup procedure was not “so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification.” Kurylczyk, 443 Mich at 302. Therefore, we are not left with a definite and firm conviction that the trial court erred by denying defendant’s motion to suppress the identification, and defendant has not sustained his due process challenge.
Defendant also contends that the trial court erred by relying on MRE 801(d)(1)(C) to allow Rivard to testify that Jones had identified defendant, and that the testimony was more prejudicial than probative. Defendant raised this issue in the trial court in a motion in limine, but did not include it in his statement of issues presented to this Court. An argument is not properly presented for review if it is not within the scope of the question presented. See MCR 7.212(C)(5); People v Albers, 258 Mich App 578, 584; 672 NW2d 336 (2003) (indicating that this Court can decline to consider an argument not within the scope of the question presented).
Even if defendant had properly presented this issue on appeal, he could not prevail because his argument lacks merit. Rivard’s testimony about Jones’s prior identification of defendant falls squarely within the ambit of MRE 801(d)(1)(C), which provides that a statement is not hearsay if “the declarant testifies at the trial and is subject to cross-examination concerning the statement,” and the statement is “one of identification of a person made after perceiving the person[.]” See also People v Malone, 445 Mich 369, 377; 518 NW2d 418 (1994) (“As long as the statement is one of identification, Rule 801(d)(1)(C) permits the substantive use of any prior statement of identification by a witness as non-hearsay, provided the witness is available for cross-examination”). Jones testified at trial and was available for cross-examination; therefore, the requirements of MRE 801(d)(1)(C) were met.
The crux of defendant’s argument is that admission of Rivard’s testimony was more prejudicial than probative because the showup was improper. However, as discussed above, defendant did not demonstrate that the showup was improper or that there was a substantial likelihood of misidentification under the totality of the circumstances. Therefore, defendant’s
7 The shooting occurred shortly after Jones and his mother left church at around 1:00 p.m., and Jones asserted that he went to the police station where the showup occurred around 5:00 or 6:00 p.m.
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argument that Rivard’s testimony was more prejudicial than probative because of alleged errors relative to the showup identification procedure must fail.
III. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE
Defendant also contends that there was insufficient evidence to convict him of conspiracy and that his conviction was against the great weight of the evidence. This Court reviews a defendant’s challenge to the sufficiency of the evidence de novo, People v Cline, 276 Mich App 634, 642, 741 NW2d 563 (2007), and a trial court’s denial of a motion for a new trial based on the great weight of the evidence for an abuse of discretion, People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). “A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes.” People v Young, 276 Mich App 446, 448; 740 NW2d 347 (2007).
When reviewing a challenge to the sufficiency of the evidence, this Court reviews “the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt.” People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). “Circumstantial evidence and reasonable inferences therefrom may be sufficient to prove all the elements of an offense beyond a reasonable doubt.” People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). “The credibility of witnesses and the weight accorded to evidence are questions for the jury, and any conflict in the evidence must be resolved in the prosecutor’s favor.” People v Harrison, 283 Mich App 374, 378; 768 NW2d 98 (2009).
The jury convicted defendant of conspiracy to commit open murder, MCL 750.157a. MCL 750.157a provides that “[a]ny person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy . . . .” In other words, “[a] criminal conspiracy is a partnership in criminal purposes, under which two or more individuals voluntarily agree to effectuate the commission of a criminal offense.” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011). The individuals must specifically intend to combine to commit the underlying substantive offense, and evidence of the conspiracy can be established through circumstantial evidence including the acts and conduct of the parties. Id. While defendant was convicted of conspiracy to commit open murder, the underlying substantive offense was first-degree murder,8 the elements of which are “(1) the intentional killing of a human (2) with premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010); MCL 750.316(1)(a).
The trial court correctly concluded that there was sufficient evidence, when viewed in the light most favorable to the prosecution, for the jury to find defendant guilty of conspiracy to commit murder beyond a reasonable doubt. The acts of the parties established an implied
8 The substantive offense underlying the conspiracy could not be conspiracy to commit second-degree murder. See People v Hammond, 187 Mich App 105, 108-109; 466 NW2d 335 (1991) (holding that conspiracy to commit second-degree murder is not recognized as a crime under Michigan law because conspiracy to commit such an offense is logically inconsistent).
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agreement to commit first-degree murder. Witnesses Jones and Watkins both testified that they saw a man shoot the victim, and they saw a second man that they described as the driver of the getaway vehicle. Watkins described the vehicle as a gray or silver Jeep, and she identified a photograph of the Jeep stopped by police and in which were defendant and co-defendant Ramsey as the vehicle she saw that day. Sergeant Rivard testified that Jones identified defendant as the shooter after observing defendant in an interview room at the police station. Although the record contains no evidence of an explicit agreement, the coordinated actions of defendant and the driver of the getaway vehicle warrant a fair inference that defendant and the driver conspired together to accomplish the shooting, which they intended to result in the death of the victim.
There was also sufficient evidence of premeditation and deliberation, which can be established through the circumstances of the killing itself and the conduct after the homicide. People v Robert Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). “Premeditation and deliberation require sufficient time to allow the defendant to take a second look.” Id. In the instant case, there was testimony establishing that the victim was shot seven times in the head, back, abdomen, thigh and arm. Jones also testified that the shooter’s gun appeared to jam briefly, and then he continued firing at the victim. The multiple shots and the fact that the shooter had to unjam the firearm support the inference that there was sufficient time for a “second look” to evaluate his actions.
Defendant also challenges the sufficiency of the evidence with respect to defendant’s identity. Defendant is correct that Jones contradicted Rivard by testifying that he did not tell Rivard that defendant was the shooter. However, this is an issue of witness credibility and conflicting evidence, and the credibility of witnesses is a question for the jury to resolve while this Court resolves any conflict in evidence in the prosecutor’s favor when examining the sufficiency of the evidence. Harrison, 283 Mich App at 378. Thus, that Jones contradicted Rivard’s testimony does not warrant relief. Defendant also points out that the partial license plate of the vehicle given by Jones did not match the plate of the Jeep that defendant and Ramsey were stopped in,9 and Little recalled seeing “trucks” at the scene but did not mention a Jeep. But Watkins testified that the vehicle she saw was a silver or gray “Jeep” and she positively identified the Jeep Commander defendant and Ramsey were in as the one she saw that day. Again, this Court resolves conflicting evidence in favor of the prosecution, Harrison, 283 Mich App at 378, so conflicting evidence regarding the getaway vehicle does not warrant relief. Defendant also points out that Jones testified that the shooter was bald, Watkins testified that she initially told police the shooter was bald but also testified that his hair was cut short, and Rivard agreed that defendant did not have a shaved or bald head when he was identified by Jones. Again, Rivard testified that Jones identified defendant, and conflicting testimony is resolved in favor of the prosecution. Harrison, 283 Mich App at 378. Thus, defendant brought to light no discrepancy that renders the evidence against him insufficient to secure a conviction after resolving conflicts in favor of the prosecution.
9 Jones agreed that he “probably” told officers that the vehicle had a license plate with the letters “CE” or “GE” on it. The Jeep Commander defendant and Ramsey were stopped in had a license plate reading DFQ9593.
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Defendant also challenges the sufficiency of the evidence with respect to the conspiracy asserting that there can be no one-man conspiracy, and that the trial court violated this rule when it allowed defendant’s conviction to stand, but granted co-defendant Ramsey’s motion for a directed verdict and acquitted Ramsey of conspiracy to commit murder. Defendant relies on People v James Anderson, 418 Mich 31, 35-36; 340 NW2d 634 (1983), in which our Supreme Court explained that the common-law “no one-man conspiracy” rule applies to Michigan’s criminal conspiracy statute, MCL 750.157a. “That rule provides that ‘if two are tried together for a conspiracy in which no additional persons are implicated, a verdict finding one guilty and the other not guilty requires a judgment of acquittal of both’.” Id. at 36, quoting Perkins, Criminal Law (2d ed), p 622. The purpose of this rule was to prevent the enforcement of “inherently defective or inconsistent verdicts in conspiracy cases.” Id. Defendant contends that the no one-man conspiracy rule applies to the instant case because he and Ramsey were tried jointly and found guilty of conspiracy, but the trial court granted Ramsey’s renewed motion for a directed verdict.
Although the James Anderson Court addressed a hypothetical situation similar to the instant case, stating that if two conspirators were tried jointly and the case against the first was dismissed as a matter of law while a jury convicted the second, the no one-man conspiracy rule would be violated, id. at 37 n 1, the “no one-man conspiracy” rule does not apply to the specific facts of this case. This case is analogous to People v Williams, 240 Mich App 316; 614 NW2d 647 (2000). In Williams, the defendant contended that his conviction for conspiracy to possess with intent to deliver over 650 grams of cocaine violated the “no one-man conspiracy” rule because his codefendant was found guilty only of conspiracy to possess with intent to deliver more than 225 but less than 650 grams of cocaine. This Court reasoned that the verdicts did not violate the “no one-man conspiracy” rule because the codefendant was not acquitted, and the convictions were not sufficiently inconsistent, and rejected the defendant’s claim “in its entirety because of the involvement of others.” Id. at 329. This Court held that the “no one-man conspiracy” rule did not apply because the felony information charged that the defendant and the codefendant had conspired “together and with others,” and there was evidence presented from which a jury could find beyond a reasonable doubt that the defendant did conspire with others aside from the codefendant to commit the underlying offense. Id. at 330-331.
In the case at bar, as in Williams, the felony information charged defendant with conspiring with Ramsey “and/or other unknown persons” to commit open murder. The trial court granted Ramsey’s renewed motion for a directed verdict indicating that there was insufficient evidence to convict him of participation in the conspiracy as the driver of the getaway vehicle.10 Nevertheless, there was testimony from Jones and Watkins that there was a
10 The video compilation that tracked the Jeep after the shooting shows that it stopped for three minutes and 12 seconds at a house, at which time the passenger exited the vehicle, another person entered the house, and then multiple people walked out of the house. The video was shot from a distance and the individuals could not be clearly seen; further, the driver’s side was not visible. The trial court concluded that it was impossible to determine whether Ramsey was the getaway driver in light of the stop at the house and because there was no direct evidence that he was involved. The trial court denied defendant’s motion for a directed verdict or a new trial in
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driver of the getaway vehicle, and the jury could find beyond a reasonable doubt that defendant conspired with the unidentified driver to commit murder. Thus, defendant’s assertion that the “no one-man conspiracy” rule bars his conviction lacks merit.
Defendant also asserts that the jury would not have convicted him of conspiracy if it had known there was insufficient evidence to convict Ramsey of conspiracy. Further, defendant argues that the jury must have believed that defendant was not the shooter because it acquitted him of murder. While not explicitly stated, the crux of these arguments is that the verdict on the conspiracy charge is illogical or inconsistent with the verdict of not guilty on the other charges. However, consistency in jury verdicts is not required. People v Vaughn, 409 Mich 463, 465-466; 295 NW2d 354 (1980). Indeed, juries must make an independent evaluation of each element of a charge, and they are free to reach different conclusions concerning an identical element of two different offenses. People v Goss (After Remand), 446 Mich 587, 597; 521 NW2d 312 (1994). As our Supreme Court explained:
Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency. Since we are unable to know just how the jury reached their conclusion, whether the result of compassion or compromise, it is unrealistic to believe that a jury would intend that an acquittal on one count and conviction on another would serve as the reason for defendant’s release. These considerations change when a case is tried by a judge sitting without a jury. But we feel that the mercy-dispensing power of the jury may serve to release a defendant from some of the consequences of his act without absolving him of all responsibility. [Vaughn, 409 Mich at 466 (citation omitted).]
Thus, defendant’s argument fails because juries are not held to rules of logic or required to return consistent verdicts.
Defendant also contends that his conviction was against the great weight of the evidence. A verdict is against the great weight of the evidence when “the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003). Questions involving credibility should be left to the trier of fact, and “[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial.” People v Lemmon, 456 Mich 625, 647; 576 NW2d 129 (1998). This Court must defer to the jury’s verdict unless the testimony contradicted indisputable physical facts or the witnesses were so far impeached that their testimony lost all probative value. Id. at 645-646. In general, “a verdict may be vacated only when the evidence does not reasonably support it and it was more likely the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.” People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009).
light of all of the evidence, including Rivard’s testimony that Jones positively identified defendant as the shooter.
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In the instant case, defendant’s argument that the verdict was against the great weight of the evidence is coextensive with his argument that there was insufficient evidence. Thus, for the same reasons discussed above, defendant failed to demonstrate that the evidence preponderates so heavily against the verdict that it would be an injustice to allow it to stand. Instead, defendant brought to light questions of witness credibility and inconsistent testimony, which are properly left to the jury to resolve. Lemmon, 456 Mich at 647.
IV. STANDARD 4 BRIEF
Defendant filed a brief in propria persona pursuant to Administrative Order 2004-6, Standard 4. Defendant contends that the prosecutor committed misconduct by referencing facts during his opening statements and closing arguments that were never presented in evidence. We review this issue for plain error because defendant failed to preserve it with a timely objection below. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). Issues of prosecutorial misconduct are reviewed “on a case-by-case basis by examining the record and evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). “Given that a prosecutor’s role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Where there is no allegation that prosecutorial misconduct violated a specific constitutional right, a court must determine whether the error so infected the trial with unfairness as to make the resulting conviction a denial of due process of law.” People v Blackmon, 280 Mich App 253, 262; 761 NW2d 172 (2008).
“A prosecutor may not make a statement of fact to the jury that is not supported by evidence presented at trial and may not argue the effect of testimony that was not entered into evidence.” Unger, 278 Mich App at 241. However, prosecutors are “free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case.” Id. at 236. Further, a prosecutor’s opening statement is “the appropriate time to state the facts that will be proven at trial.” People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010).
Defendant asserts that it was error for the prosecutor to state during opening statements that defendant and Ramsey “agreed and worked together with each other to commit the brutal killing of Mr. Casas[.]” He takes issue with the prosecutor’s statement that the evidence presented would show that defendant and Ramsey were in a vehicle and that defendant got out and shot Casas, that Ramsey aided and abetted defendant, and that the men possessed a firearm. Defendant also takes issue with the prosecutor’s description of the shooting and statements about the witnesses’ anticipated testimony. But these statements reveal that the prosecutor was properly stating the facts that he intended to prove at trial, Ericksen, 288 Mich App at 200, or making reasonable inferences from the evidence he intended to introduce as it related to his theory of the case, Unger, 278 Mich App at 236. In short, defendant has not pointed to any statement made by the prosecutor that was actually outside the scope of the evidence later presented at trial or that was not a reasonable inference derived from the evidence later presented.
Defendant also contends that the prosecutor violated his Sixth Amendment right to confrontation and cross-examination because the prosecutor effectively became an unsworn
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witness by arguing facts not in evidence. This claim lacks merit because the prosecutor did not argue facts not in evidence or in any other way testify against defendant.
Defendant further contends that the prosecutor made statements during closing arguments that were unsupported by facts or evidence. However, defendant abandoned these claims by merely providing citation to multiple pages of the transcript without specifying what statements he takes issue with and without briefing the merits of his claims. See People v Lopez, 305 Mich App 686, 694; 854 NW2d 205 (2014) (holding that failure to properly argue the merits of an issue results in abandonment on appeal). In any event, after reviewing the pages identified by defendant, they merely contain the prosecutor’s arguments relating to his theory of the case or his summary of the witnesses’ testimony. Nothing stated by the prosecutor was improper because, as we indicated above, prosecutors are “free to argue the evidence and all reasonable inferences from the evidence as it relates to their theory of the case.” Unger, 278 Mich App at 236.
Finally, defendant argues that the prosecutor improperly bolstered the testimony of Rivard and vouched for his credibility during closing arguments because the prosecution’s case hinged on Rivard’s testimony that Jones identified defendant. “A prosecutor may not vouch for the credibility of his witnesses by suggesting that he has some special knowledge of the witnesses’ truthfulness.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Nevertheless, a prosecutor may argue from the facts that a witness should be believed. Id. It is proper for a prosecutor to “comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.”
Defendant takes issue with the following statement made by the prosecutor that referenced Rivard’s testimony that Jones identified defendant and Jones’s conflicting testimony that he did not:
Who has more to lose? When you talk about analyzing the testimony of witnesses and when you – and the court will instruct you about motives to say things and whether they’re truthful, untruthful, deliberate, un-in-deliberate [sic], that sort of thing, who has more to lose here? A 13-year veteran of the Michigan State Police Department who’s conducted a number of investigations, or a 16-year-old kid whose mom recognizes, they shoot witnesses. Who has more to lose?
This kid has to survive in society. He has to function in a day-to-day living in a place where they shoot witnesses.
Defendant argues that this statement constitutes improper vouching for the credibility of Rivard. In context, this line of argument was clearly a response to defense counsel’s argument that Jones had no reason to be untruthful. Additionally, the prosecutor was not implying that he had special knowledge of the truthfulness of the police officer. In fact, the prosecutor made no comment about his personal knowledge or belief regarding the truthfulness of Rivard; he merely argued that Jones had a reason to be untruthful while Rivard did not. Thus, defendant failed to
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demonstrate that the prosecutor impermissibly bolstered Rivard’s testimony or vouched for his credibility.
Finally, defendant argues that his counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct described above. Review of a claim of ineffective assistance of counsel is limited to the existing record where, as here, the defendant fails to move for a new trial or an evidentiary hearing. People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). “To prove that defense counsel was not effective, the defendant must show that (1) defense counsel’s performance was so deficient that it fell below an objective standard of reasonableness and (2) there is a reasonable probability that defense counsel’s deficient performance prejudiced the defendant.” People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). “The defendant was prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been different.” Id. at 81. “A defendant may meet this burden ‘even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.’ ” People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012), quoting Strickland v Washington, 466 US 668, 694; 104 S Ct 2052, 2068; 80 L Ed 2d 674 (1984). “The defendant must overcome a strong presumption that counsel’s assistance constituted sound trial strategy.” People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
For the reasons discussed above, defendant failed to demonstrate that there were any instances of prosecutorial misconduct. Thus, defendant has not shown that counsel’s performance fell below an objective standard of reasonableness by failing to make objections. Indeed, any objection would have been futile, and counsel is not ineffective for failing to raise a futile objection. Ericksen, 288 Mich App at 201.
V. CONCLUSION
We conclude for the reasons stated above that the station-house showup was not unnecessarily suggestive and, accordingly, that the trial court did not clearly err in denying defendant’s motion to suppress Jones’s identification. Defendant having thus failed to show that the “pretrial identification process was so suggestive in light of the totality of the circumstances that it led to a substantial likelihood of misidentification[,]” he has failed to sustain his due process challenge. Kurylczyk, 443 Mich at 302. We further conclude that Rivard’s testimony of Jones’s identification of defendant was admissible pursuant to MRE 801(d)(1)(C) as non-hearsay, and reject defendant’s contention that the trial court should have excluded the testimony based on the suggestiveness of the showup. Likewise, for the reasons stated above, we conclude that evidence presented at trial was sufficient to sustain defendant’s conviction for conspiracy to commit open murder, and that said conviction is not against the great weight of the evidence. Finally, we conclude that defendant has not sustained his claims of prosecutorial misconduct, and has not shown that the conduct of the prosecutor “so infected the trial with unfairness as to make the resulting conviction a denial of due process of law.” Blackmon, 280 Mich App at 262.
Affirmed.
/s/ Michael J. Talbot /s/ Jane M. Beckering /s/ Michael J. Kelly
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Michigan Supreme Court Lansing, Michigan
Stephen J. Markman,
Chief Justice
Brian K. Zahra Bridget M. McCormack
David F. Viviano Richard H. Bernstein
Kurtis T. Wilder Elizabeth T. Clement,
Justices
Order November 21, 2018 156189 PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, v SC: 156189 COA: 332190 TRAVIS TRAVON SAMMONS, Saginaw CC: 15-041848-FC
Defendant-Appellant. _____________________________________/ By order of April 4, 2018, the prosecuting attorney was directed to answer the application for leave to appeal the July 6, 2017 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and we direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).
We further ORDER the Saginaw Circuit Court, in accordance with Administrative Order 2003-03, to determine whether the defendant is indigent and, if so, to appoint attorney Christine DuBois, if feasible, to represent the defendant in this Court. If this appointment is not feasible, the trial court shall, within the same time frame, appoint other counsel to represent the defendant in this Court.
The appellant shall file a supplemental brief within 42 days of the date of the order
appointing counsel, addressing whether (1) the show-up identification procedure was impermissibly suggestive, see People v Kurylczyk, 443 Mich 289, 303-306 (1993); (2) if so, whether the identification was nonetheless sufficiently reliable so that it was properly admitted, Perry v New Hampshire, 565 US 228, 238-239 (2012); and (3) if improperly admitted, whether it is more probable than not that the erroneous admission of the identification through the detective’s testimony affected the outcome of the trial. People v Lukity, 460 Mich 484, 496 (1999).
In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant’s brief. The
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I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.
November 21, 2018 a1114
2
Clerk
appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellee’s brief. The parties should not submit mere restatements of their application papers. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
74a
RE
CE
IVE
D by M
SC 3/1/2019 5:00:59 PM