Opinion
No. 318627
01-22-2015
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CAVANTA DANYELL McLILLY, Defendant-Appellant.
UNPUBLISHED Genesee Circuit Court
LC No. 13-033099-FC
Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by right his convictions, following a jury trial, for armed robbery, MCL 750.529, assault with intent to murder, MCL 750.83, carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, and possession of a firearm in the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced as a fourth habitual offender, MCL 769.12, to concurrent prison terms of 40 to 60 years for armed robbery, 43 to 65 years for assault with intent to murder, 2 to 10 years for CCW, and 5 to 30 years for felon in possession, and a consecutive two-year term for felony-firearm. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of the robbery of a convenience store in Flint, Michigan on December 21, 2012. Before the robbery, defendant approached three young men, Demetrius Robinson, Anthony Watkins, and AJR, a minor, and asked them to go into the store and drop a bottle on the floor; defendant promised them one hundred dollars apiece if they did this. The three then went into the store and Robinson dropped a bottle on the floor. An employee of the store, Hergid Singh, left his bulletproof enclosure to clean up the broken bottle. After he did so, defendant and two other men demanded money from him at gunpoint, and took money from the store's cash register. Defendant made Singh lie down on the floor, stood over him, and shot him once in the chest. A witness, Madison Wortham, saw at least two men enter the store wearing masks, and called 911. Singh identified defendant as the man who had robbed and shot him. Robinson and AJR identified defendant as the man who had offered them money. Wortham identified a picture taken from a store video as depicting two men who had entered the store, although he testified that he could not see their faces because of their masks. Defendant denied committing the robbery or the shooting, although he did admit to being in the store earlier to make a purchase. The jury convicted defendant as described above. This appeal followed.
II. LAY OPINION TESTIMONY
On appeal, defendant argues that the trial court erred in allowing Detective Sergeant Jennings to testify regarding the contents of the store's security video, including identifying defendant as one of the robbers depicted in the video. Detective Jennings and Officer Michael Dumanois also identified defendant from still photos created from the store video. Defendant argues that this testimony invaded the jurors' ability to interpret the evidence themselves. We agree in part.
Lay opinion testimony is generally admissible when the opinions or inferences are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact and issue." MRE 701. In this case, the store video, a composite from 14 cameras, was introduced after Jennings and Dumanois testified as to its contents. The foundation for the video's introduction was also provided by Detective Sergeant Tomassi, who was qualified as an expert in forensic video analysis.
Defendant argues that Jennings, and presumably Dumanois, had no better basis for interpreting the video than the jurors themselves. Thus, defendant argues, Jennings's opinion was "merely an inadmissible lay witness' opinion on the believability of the complainant's story." People v Smith, 425 Mich 98, 113; 387 NW2d 814 (1986). However, it is important to distinguish between the officers' foundational testimony regarding the video itself, and their testimony identifying defendant as being depicted in the video.
With regard to the officers' foundational testimony regarding the events taking place in the video, we find no error in its admission. Smith and the other cases on which defendant relies, People v Beckley, 434 Mich 691, 711; 456 NW2d 391 (1990) and People v McGillen, 392 Mich 278, 284; 220 NW2d 689 (1974), all deal with the admissibility of testimony by a physician or professional concerning whether a complainant in a sexual assault case had been sexually assaulted, and involved an expert witness reaching a conclusion regarding whether the victim's testimony was truthful or reaching the ultimate conclusion that the victim had been sexually assaulted. See Smith, 425 Mich at 112; Beckley, 434 Mich at 728; McGillen, 392 Mich at 286. The foundational testimony in this case is much different. Jennings's and Dumanois's testimony was rationally based on their perceptions of the video. See People v Fomby, 300 Mich App 46, 50; 831 NW2d 887 (2013) (holding that a police officer's "scrutiny of the video surveillance footage" rendered his opinion on the identity of the individuals in the video—as compared to still images created from the video—rationally based on his perceptions of that video). Further, this testimony was intended to provide a clearer understanding concerning the sequence of events of the robbery, a fact that was at issue in the case. See id. at 51. The admission of foundational testimony concerning the events taking place in the video was thus within the trial court's discretion.
However, Jennings and Dumanois testified to more than the events taking place in the video; they also identified defendant at trial as an individual captured in the video. That testimony invaded the province of the jury. In Fomby, this Court stated as follows:
Third, Gibson's testimony did not invade the province of the jury. In United States v. LaPierre, 998 F.2d 1460, 1465 (C.A.9, 1993), an officer provided lay opinion testimony that the defendant was the individual captured in surveillance photographs from the bank that was robbed. The Ninth Circuit concluded that the trial court abused its discretion by admitting this testimony and remanded the case. Id. The Ninth Circuit identified two situations under that circuit's precedent
illustrative of when such testimony was admissible. The LaPierre court opined that the "common thread" of this authority was "reason to believe that the witness is more likely to identify correctly the person than is the jury." Id. The court concluded that the issue of whether the defendant in the courtroom was the person pictured in a surveillance photo "was a determination properly left to the jury." Id.; see also United States v. Rodriguez-Adorno, 695 F.3d 32, 40 (C.A.1, 2012) (holding that when a witness is in no better position than the jury to make an identification from a video or photograph, the testimony is inadmissible under FRE 701).Fomby thus held the officer's testimony in that case to have been admissible precisely because the officer had not identified the defendant as depicted in the video. By contrast, Dumanois and Jennings did precisely that; they identified defendant at trial as a person depicted in the video, and thus essentially opined as to his guilt. No evidence was submitted indicating that they were in a better position than the jury to identify defendant as a person in the video. Accordingly, this was impermissible lay opinion testimony and should not have been admitted at trial.
But unlike the officer in LaPierre, Gibson did not identify defendant in the video or still images. Gibson's testimony only linked individuals depicted in the surveillance video as being the same individuals depicted in the still photographs. While "a witness cannot express an opinion on the defendant's guilt or innocence of the charged offense," People v. Bragdon, 142 Mich.App. 197, 199, 369 N.W.2d 208 (1985), Gibson expressed no such opinion. [Fomby, 300 Mich App at 52-53 (emphasis added).]
However, error in the admission of evidence does not require reversal if it was not prejudicial. People v Snyder (After Remand), 301 Mich App 99, 111; 835 NW2d 608 (2013). Whether erroneously admitted evidence requires reversal depends on the error's effect in light of the weight of the properly admitted evidence. People v Phillips, 469 Mich 390, 397; 666 NW2d 657 (2003). Here, we find the error in the admission of the testimony to have been harmless. Defendant was also identified by two of the young men, Robinson and AJR, as the person who was in the store and who had talked to them before the robbery. Robinson (if not both Robinson and AJR) had spoken with defendant, and had a good opportunity to view him up close. Additionally, Singh identified defendant as the man who had shot him, and as one of the robbers of the store; he, too, had a good opportunity to observe and identify the robbers, and the man who had shot him, was quite certain of his identification, and had no motive to lie. Thus, there was more than sufficient evidence, even excluding the identification testimony of Dumanois and Jennings, to identify defendant as one of the robbers, and as the man who had shot Singh. We therefore find no error requiring reversal.
III. ADMISSION OF GUILTY PLEA TRANSCRIPT
Next, defendant argues that he was denied a fair trial by the trial court's admission of the transcript of Robinson's guilty plea. Robinson was originally charged with armed robbery, but was permitted to plead to unarmed robbery and to seek youthful trainee status under the Holmes Youthful Trainee ACT (HYTA), MCL 762.11 et seq., in exchange for truthful testimony against defendant. At trial, the prosecution offered Robinson's plea transcript as a prior consistent statement. Defendant objected to the transcript as having "no evidentiary value" and not admissible as a prior consistent statement. We agree that the admission of the transcript was erroneous, but find the error harmless.
In admitting the evidence, the trial court cited MRE 801(d)(1)(B), which provides in pertinent part:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if—
(1) Prior Statement of Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . .
Defendant argues that the court's ruling was erroneous, because Robinson's statements were made after a motive to fabricate arose. If true, that would indeed disqualify Robinson's statements from admission under the MRE 801(d)(1)(B) hearsay exclusion. People v McCray, 245 Mich App 631, 641-642; 630 NW2d 633 (2001); People v Rodriquez (On Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996). The exclusion applies only if the earlier statement was "given at a time prior to the existence of any fact which would motivate bias, interest, or corruption." People v Lewis, 160 Mich App 20, 29; 408 NW2d 94 (1987). In Lewis, this Court found that the relevant time would have been before the witness was offered a plea bargain. Afterward, he would have had a motive to lie, and the statement would be clearly inadmissible and should not be admitted at trial. Id. at 30.
In this case, Robinson's statements were made after he had received an offer of a plea bargain. Thus, at the time the statements were made, he had a motive to color his testimony to incriminate defendant and/or match what the prosecution wanted him to say. Thus, the statements were not made before a motive to fabricate arose, and were not admissible as prior consistent statements under MRE 801(d)(1)(B).
We find, however, that the error in admitting the guilty plea transcript was not prejudicial and does not require reversal. Snyder, 301 Mich App at 111. The totality of the evidence that was properly admitted at trial, Phillips, 469 Mich at 397, was more than sufficient to prove defendant's guilt of the charged crimes beyond a reasonable doubt. Further, the trial court gave a cautionary instruction on accomplice testimony. It is not likely that the exclusion of Robinson's guilty plea transcript would have produced a different result at trial. We thus find no error requiring reversal.
Affirmed.
/s/ Jane M. Beckering
/s/ Kathleen Jansen
/s/ Mark T. Boonstra