Opinion
No. 351782
05-20-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EMILIO MICHAEL CORTES-LLOYD, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 19-045017-FC Before: SAWYER, P.J., and STEPHENS and RICK, JJ. PER CURIAM.
Defendant appeals as of right his jury-trial convictions of second-degree murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced to serve 375 to 750 months' imprisonment for second-degree murder and two years' imprisonment for felony-firearm, to be served consecutively. We affirm defendant's convictions, vacate defendant's sentence for second-degree murder, and remand for resentencing.
I. BACKGROUND
This case arises out of a shooting that occurred in December 2016. The victim, who was 16 years old, agreed to purchase a gun from a friend of defendant, and defendant drove the friend to the victim's house while a third person sat in the car's front passenger seat. As the trio approached the house, defendant stated that the victim had robbed a friend of his and said that he should have "smoked" him. The victim walked out to the car to discuss the transaction with defendant's friend. The victim turned around, apparently to speak to a person who was on the house's porch, and defendant shot him in the back before driving away. Shortly thereafter, the victim's mother found him on the ground and a bystander contacted emergency personnel. The following day, defendant's friend reported him to the police.
One of the police officers who responded to the scene was accompanied by a filmmaker who was producing a documentary series for Netflix. The police did not participate in the production of this series, and the filmmakers did not assist in the investigation. Images and conversations from the crime scene were included in an episode of the Netflix series. During defendant's trial, the prosecution played a brief clip from this series for the jury. Defendant was charged with first-degree murder, felony-firearm, and carrying a concealed weapon (CCW). Defendant was found guilty of the lesser included offense of second-degree murder, CCW, and felony-firearm; the trial court later entered an order vacating the CCW conviction because of an error in the verdict form concerning this charge. This appeal followed.
II. PLAIN ERROR
Defendant argues that he is entitled to a new trial because the trial court erroneously allowed the prosecution to play a clip from the Netflix video. We disagree.
Evidentiary challenges are reviewed for abuse of discretion. People v Thorpe, 504 Mich 230, 251; 934 NW2d 693 (2019). "The decision to admit evidence is within the trial court's discretion and will not be disturbed unless that decision falls 'outside the range of principled outcomes.' A decision on a close evidentiary question ordinarily cannot be an abuse of discretion." Id. at 251-252 (quotation marks and citation omitted). Because defendant failed to preserve this issue for our review by timely objecting at trial, we review for plain error. Id. at 252. A plain error occurs if three requirements are "met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citation omitted). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763 (quotation marks and citation omitted). Moreover, MCR 2.613(A) provides that the erroneous admission of evidence does not warrant reversal unless failing to reverse "appears to the court inconsistent with substantial justice."
Although defendant raised an unspecified objection after the video was played in its entirety for the jury, defendant did not timely object. "[T]o be timely, an objection should be interposed between [a] question and the answer." People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). We do not see a meaningful difference between failing to object until after a question was answered and failing to object until after video evidence has been fully presented. --------
Defendant argues that the Netflix video was irrelevant because the only disputed element in this case was the identity of the shooter. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. "A fact that is 'of consequence' to the action is a material fact." People v Crawford, 458 Mich 376, 388-389; 582 NW2d 785 (1998). "It is well established in Michigan that all elements of a criminal offense are 'in issue' when a defendant enters a plea of not guilty." Id. at 389. "Because the prosecution must carry the burden of proving every element beyond a reasonable doubt, regardless of whether the defendant specifically disputes or offers to stipulate any of the elements, the elements of the offense are always 'in issue' and, thus, material." Id. at 389. Because the Netflix video portrayed the victim's body on the ground, the police response to the shooting, and the visceral responses of witnesses in the case, it did tend to make it more likely that the victim died as the result of a malicious and unjustified act; therefore, it was relevant. MRE 401.
Defendant argues that the video's probative value was outweighed by the risk of unfair prejudice. Generally speaking, relevant evidence is admissible. MRE 402. However, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." People v Schaw, 288 Mich App 231, 237; 791 NW2d 743 (2010) (quotation marks and citation omitted; alteration omitted).
The admission of videotaped evidence is "closely analogous" to the admission of photographic evidence and the same rules of admissibility apply to the admission of both forms of evidence, although the trial court must take into account the differences between the two media when determining admissibility. People v Barker, 179 Mich App 702, 710; 446 NW2d 549 (1989).
[P]hotographs that are merely calculated to arouse the sympathies or prejudices of the jury should not be admitted. However, if a photograph is otherwise admissible for a proper purpose, it is not rendered inadmissible merely because it brings vividly to the jurors the details of a gruesome or shocking accident or crime. [People v Head, 323 Mich App 526, 541; 917 NW2d 752 (2018) (quotation marks and citation omitted).]"The proper inquiry is always whether the probative value of the photographs is substantially outweighed by unfair prejudice." People v Mills, 450 Mich 61, 76; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212 (1995).
The trial court abused its discretion by admitting the Netflix video. Parts of the video did have some marginal probative value. Images of the victim on the ground and receiving medical attention were relevant evidence that a person had died. Images of the police responding to the scene and asking questions as well as the images of the visceral responses of the witnesses who were present were relevant evidence that the victim's death was caused by a malicious act. However, this marginal probative value was tempered by the fact that this evidence was cumulative of testimony that more clearly established that a person had died as the result of a malicious act. Moreover, much of this video lacked any probative value and appeared to have been produced for the specific purpose of evoking sympathy for the victim and his family. For example, the jury could hear the victim's mother crying and screaming, "My son, please save my son." There were artistic shots of the victim's hand lying still on the ground. The video showed a police officer alone in his car discussing how difficult it was to see such a murder victim who was younger than his son. Music played in the background that appeared to have been designed to intensify the viewers' emotional responses to the images at the crime scene. A woman could be heard saying that the victim's father had died the previous year. The purpose of this video appeared to be to arouse sympathy for the victim and his family; images "that are merely calculated to arouse the sympathies or prejudices of the jury should not be admitted." Head, 323 Mich App at 541.
Nevertheless, establishing that the trial court erred is not the end of our inquiry. Defendant must establish that he was prejudiced by the admission of the evidence, and we conclude that he has failed to do so. Carines, 460 Mich at 763.
First, the playing of this video took up less than four minutes early in a six-day trial. There was nothing in the video that implicated defendant as the person who had shot the victim. The jury was instructed not to allow sympathy to impact its deliberations, and "jurors are presumed to follow their instructions." People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). Moreover, there was overwhelming evidence aside from the video that established defendant's guilt. Defendant's friend testified that he saw defendant shoot the victim. When defendant was arrested he was in possession of the gun that was later determined to have been used to shoot the victim. Defendant's fingerprints and DNA were found on the murder weapon. Defendant testified that it was the friend who was attempting to sell a gun who shot the victim; however, police did not find this person's DNA or fingerprints on the gun. Defendant had a motive to shoot the victim because the victim had allegedly robbed a friend of defendant. Therefore, it is highly improbable that defendant was convicted as a result of the trial court's having erroneously admitted the Netflix video, and defendant has failed to establish a plain error affecting substantial rights. Carines, 460 Mich at 763.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he is entitled to a new trial due to ineffective assistance of counsel because his trial attorney failed to object to the playing of the Netflix video. We disagree.
Claims of ineffective assistance of counsel present mixed questions of fact and law. Head, 323 Mich App at 539. Factual findings are reviewed for clear error and legal conclusions are reviewed de novo. Id. Because the trial court has not held an evidentiary hearing, our review is limited to mistakes that are apparent from the record. People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003).
The Sixth Amendment of the United States Constitution guarantees that criminal defendants receive effective assistance of counsel. Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984). "To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that (1) counsel's performance was below an objective standard of reasonableness and (2) a reasonable probability exists that the outcome of the proceeding would have been different but for trial counsel's errors." Head, 323 Mich App at 539 (quotation marks and citation omitted; alteration omitted).
Defendant argues that his trial counsel erred by failing to object to the admission of the Netflix video. For the reasons discussed above, the trial court erred by admitting the Netflix video; therefore, defense counsel should have lodged a timely objection. Nevertheless, there is no "reasonable probability" that the jury would not have found defendant guilty but for defense counsel's error. Head, 323 Mich App at 539. In light of the substantial evidence of defendant's guilt, the error was not outcome-determinative.
IV. SENTENCING GUIDELINES
Defendant argues that he is entitled to resentencing for his second-degree murder conviction because the trial court improperly scored PRV 7. As the prosecution concedes, zero points should have been assessed for PRV 7.
Ten points are assessed for PRV 7 if "[t]he offender has 1 subsequent or concurrent conviction." MCL 777.57(1)(b). However, the trial court cannot "score a felony firearm conviction in this variable." MCL 777.57(2)(b). Defendant's only conviction subsequent to or concurrent with the sentencing offense of second-degree murder is his felony-firearm conviction, which cannot be considered in scoring PRV 7. Because the scoring error alters defendant's recommended minimum sentence range under the guidelines, he is entitled to resentencing. People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).
We affirm defendant's convictions. We vacate defendant's sentence for second-degree murder and remand to the trial court for resentencing. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Cynthia Diane Stephens
/s/ Michelle M. Rick