People of Michigan v. Lawrence Issac McCree

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

December 13, 2018

Plaintiff-Appellee,

v No. 339802

Wayne Circuit Court

LAWRENCE ISSAC MCCREE, LC No. 16-008446-01-FC

Defendant-Appellant.

Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

Defendant appeals as of right his bench-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.1 The trial court sentenced defendant to 30 to 50 years in prison for the second-degree

murder conviction and a consecutive two-year term of imprisonment for the felony-firearm

conviction. We affirm defendant’s convictions, but remand for resentencing.

This case arose from the fatal shooting of Deanthony Walters (the victim) on September

4, 2016, in Detroit. At a bench trial, the prosecution presented the eyewitness testimony of

defendant’s ex-girlfriend, Chelinda Fomby, that defendant shot the victim outside her home.

Defendant’s theory at trial was misidentification. The trial court found insufficient evidence that

defendant was “lying in wait” to support guilt with regard to first-degree premediated murder,

but convicted defendant of second-degree murder and felony-firearm. This appeal followed.

I. SEIZURE OF DEFENDANT’S CELLULAR TELEPHONE

First, defendant argues that the trial court erred by denying his motion to suppress based

on the seizure of his cellular telephone from his friend, Derrick Burgess, who was on probation.

Although Burgess gave the telephone to the police, defendant appears to be arguing that this

relinquishment was done under duress when the police confronted Burgess.

1

The trial court found defendant not guilty of first-degree premeditated murder, MCL

750.316(1)(a).

-1-

“To preserve an evidentiary issue for review, a party opposing the admission of evidence

must object at trial and specify the same ground for objection that it asserts on appeal.” People v

Aldrich, 246 Mich App 101, 116; 631 NW2d 67 (2001). Defendant argued below that Burgess

did not have actual or apparent authority to consent to the seizure of the telephone. He argued

that Burgess was a bailee who was holding the telephone for defendant. The trial court denied

the motion to suppress on the basis that there was no bailment, Burgess consented to giving the

telephone to the police and, in addition, defendant did not have an expectation of privacy in

someone else’s home, from where the item was taken. On appeal, defendant raises a new

argument—that the police lacked reasonable suspicion to believe that Burgess was engaged in

any criminal activity. Defendant’s argument is not a model of clarity, but, based on the caselaw

he cites, he appears to be arguing that because of this alleged lack of reasonable suspicion, the

police should not have searched or attempted to search Burgess’s home or person. Because this

argument was not raised below, it is unpreserved.

This Court reviews de novo a trial court’s ultimate decision on a motion to suppress

because of an alleged constitutional violation. People v Mahdi, 317 Mich App 446, 457; 894

NW2d 732 (2016). Unpreserved claims of constitutional error are reviewed for plain error

affecting defendant’s substantial rights. People v Morris, 314 Mich App 399, 404; 886 NW2d

910 (2016).

In People v Antwine, 293 Mich App 192, 194-195; 809 NW2d 439 (2011), this Court

stated:

The Fourth Amendment of the United Stated Constitution and article 1, §

11 of the Michigan Constitution prohibit unreasonable searches and seizures. The

Michigan constitutional provision is generally construed to afford the same

protections as the Fourth Amendment. [T]he Fourth Amendment protects people,

as opposed to places or areas . . . . Accordingly, a search for purposes of the

Fourth Amendment occurs when the government intrudes on an individual’s

reasonable, or justifiable, expectation of privacy. Whether an expectation of

privacy is reasonable depends on two questions. First, did the individual exhibit

an actual, subjective expectation of privacy? Second, was the actual expectation

one that society recognizes as reasonable? Whether the expectation exists, both

subjectively and objectively, depends on the totality of the circumstances

surrounding the intrusion. [Citations and quotation marks omitted.]

“Searches and seizures conducted without a warrant are unreasonable per se, subject to

several specifically established and well-delineated exceptions.” People v Mead (On Remand),

320 Mich App 613, 622; 908 NW2d 555 (2017) (citations and quotation marks omitted). For

example, “ ‘[w]hen an officer has reasonable suspicion that a probationer subject to a search

condition is engaged in criminal activity, there is enough likelihood that criminal conduct is

occurring that an intrusion on the probationer’s significantly diminished privacy interests is

reasonable.’ ” Mahdi, 317 Mich App at 465, quoting United States v Knights, 534 US 112, 121;

122 S Ct 587; 151 L Ed 2d 497 (2001) (emphasis added in Mahdi).

“Fourth Amendment protections apply only when a person has an expectation of privacy

in the searched property.” Mead, 320 Mich App at 622. “The right to be free from unreasonable

-2-

searches and seizures is personal, and the right cannot be invoked by a third party.” Mahdi, 317

Mich App at 458-459.

For an individual to assert standing to challenge a search, the individual must

have had a legitimate expectation of privacy in the place or location searched,

which expectation society recognizes as reasonable. A court determines the issue

of standing by examining the totality of the circumstances, and a defendant bears

the burden of establishing that he has standing. [Id. at 459 (citations and

quotation marks omitted; emphasis added).]

Relevant to the determination of standing are:

ownership, possession and/or control of the area searched or item seized;

historical use of the property or item; ability to regulate access; the totality of the

circumstances surrounding the search; the existence or nonexistence of a

subjective anticipation of privacy; and the objective reasonableness of the

expectation of privacy considering the specific facts of the case. [Id. (citations

and quotation marks omitted).]

On appeal, defendant does not challenge the trial court’s finding that he did not have an

expectation of privacy in Burgess’s home. As such, to the extent that defendant is arguing that

the police had no basis to search Burgess’s home, defendant does not have standing to make this

argument.2 In addition, defendant clearly had no expectation of privacy with regard to Burgess’s

person and therefore no standing to challenge a search of him. The trial court did not err by

denying defendant’s motion to suppress the evidence in question.

II. ADMISSION OF PHOTOGRAPH

Next, defendant argues that reversal is required because the trial court admitted an

allegedly prejudicial photograph of him holding a gun. We disagree.

“A decision whether to admit photographs is within the sound discretion of the trial court

and will not be disturbed on appeal absent an abuse of discretion.” People v Head, 323 Mich

App 526, 539-540; 917 NW2d 752 (2018) (citation and quotation marks omitted). “An abuse of

discretion occurs when the trial court reaches a result that is outside the range of principled

outcomes.” People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).

“A proper foundation for the admission of photographs is made if someone who is

familiar from personal observation of the scene or person photographed testifies that the

photograph is an accurate representation of the scene or person.” In re Robinson, 180 Mich App

454, 460; 447 NW2d 765 (1989). “Relevant evidence is generally admissible. MRE 402.

Relevant evidence means evidence having any tendency to make the existence of any fact that is

2

Although defendant had a legitimate expectation of privacy in the contents of the telephone, id.

at 458, the police obtained a search warrant before searching the contents.

-3-

of consequence to the determination of the action more probable or less probable than it would

be without the evidence. MRE 401.” Head, 323 Mich App at 540 (quotation marks omitted).

MRE 403 provides: “Although 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.” “All relevant evidence is prejudicial to some extent. Exclusion is

required under MRE 403 only when the danger of unfair prejudice substantially outweighs the

probative value of the evidence. Thus, [p]hotographic evidence is generally admissible as long

as it is relevant, MRE 401, and not unduly prejudicial, MRE 403.” Head, 323 Mich App at 541

(citations and quotation marks omitted).

In this case, a proper foundation for the admission of the photograph was made because

Fomby, who was familiar from personal observation with defendant and the gun used in the

crime, testified that the photograph accurately reflected defendant holding the gun used in the

crime. See In re Robinson, 180 Mich App at 460. Moreover, contrary to defendant’s assertion,

the photograph of him holding a gun that was at least similar to the one used in the crime was

relevant. In People v Hall, 433 Mich 573, 580-581; 447 NW2d 580 (1989), the Michigan

Supreme Court stated that “[e]vidence of a defendant’s possession of a weapon of the kind used

in the offense with which he is charged is routinely determined by courts to be direct, relevant

evidence of his commission of that offense.” The Court noted that “to be admissible the gun

seized from a defendant need only be shown to have been in the defendant’s possession and of

the same kind as that used during the charged offense.” Id. at 582 n 7. See also People v

Howard, 391 Mich 597, 604; 218 NW2d 20 (1974) (“The fact that defendant had access to a

sawed-off shotgun which at a minimum was similar to the one used in the commission of the

crime is adequate at least to establish relevancy.”). Fomby testified that the photograph showed

defendant holding the gun that she believed was used in the shooting. Therefore, the photograph

was relevant evidence that defendant committed the crime.

Further, while the trial court did not expressly address the prejudicial effect of the

photograph, the danger of unfair prejudice was low because defendant was tried before a judge,

not a jury. See, generally, People v Parker, 319 Mich App 664, 672; 903 NW2d 405 (2017)

(discussing “trained jurist[s]”).

The trial court did not err by admitting the photograph, and even if it had, there would be

no basis for reversal because, while the trial court noted the existence of the photograph, it did

not rely on the photograph in making its findings regarding the elements of the crimes. See

People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013) (citation and quotation marks

omitted) (discussing the harmless-error standard for evidentiary errors). There is no basis for

reversal.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next argues that there was insufficient evidence to support his convictions.

We disagree.

“This Court reviews de novo a challenge to the sufficiency of the evidence in a bench

trial.” People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d 746 (2006). This Court

-4-

must view the evidence “in a light most favorable to the prosecution to determine whether the

trial court could have found that the essential elements of the crime were proven beyond a

reasonable doubt.” Id. at 474. In People v Solloway, 316 Mich App 174, 180-181; 891 NW2d

255 (2016), this Court stated:

In determining whether sufficient evidence was presented to support a

conviction, the reviewing court will not interfere with the fact-finder’s role of

deciding the credibility of the witnesses. All conflicts in the evidence must be

resolved in favor of the prosecution, and circumstantial evidence and all

reasonable inferences drawn therefrom can constitute satisfactory proof of the

crime. [Citations omitted.]

Defendant was convicted of second-degree murder and felony-firearm. The elements of

second-degree murder are “(1) a death, (2) the death was caused by an act of the defendant, (3)

the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse

for causing the death.” People v Bergman, 312 Mich App 471, 487; 879 NW2d 278 (2015)

(citation and quotation marks omitted). “The elements of felony-firearm are that the defendant

possessed a firearm during the commission of, or the attempt to commit, a felony.” People v

Bass, 317 Mich App 241, 268-269; 893 NW2d 140 (2016) (citation and quotation marks

omitted). “[I]dentity is an element of every offense.” Id. at 263 (citation and quotation marks

omitted).

With regard to his second-degree murder conviction, defendant only challenges his

identity as the perpetrator. In particular, he argues that Fomby admitted that she relied in part on

the way that the assailant walked to conclude that it was defendant, and said that defendant was

making an angry look that she had never seen before, which suggested that maybe the assailant

was not defendant. Although Fomby had never before seen defendant make the angry facial

expression that she observed, she testified that it did not make her think that it was not defendant.

She identified defendant based on his face, his clothing, the way he walked, and his height.

While Fomby’s identification was based in part on the way that the assailant walked, she

expressly testified that she saw defendant’s face. She further testified that she was close enough

to defendant that he could have opened the door of the car she was occupying. There was also a

streetlight illuminated over the car. The trial court found that Fomby’s testimony was credible,

noting that she knew defendant and had been in a romantic relationship with him, defendant was

close enough to open the door, his face was not covered, and there was a streetlight in close

proximity to where the observation was made. The court also noted that she told the police that

evening that defendant was responsible for the shooting. This Court will not interfere with the

trial court’s credibility determination. See Solloway, 316 Mich App at 180. The evidence was

sufficient to establish defendant’s identity as the person who committed the offense of second-

degree murder.

With regard to his felony-firearm conviction, defendant argues that the weapon used in

the crime was never recovered, there was no way to determine whether the weapon that Fomby

had previously seen was the one used in the crime, and another witness could not identify the

weapon used. To convict defendant of felony-firearm, however, it was not necessary for the

weapon used to have been recovered or admitted at trial. Nor was the testimony of Fomby or the

other witness regarding the weapon determinative. In Bass, 317 Mich App at 269, this Court

-5-

concluded that it was reasonable to infer that the defendant possessed a firearm during the

commission of murder based on the evidence that the victim’s cause of death was a gunshot

wound to the back of the head. In this case, the cause of the victim’s death was multiple gunshot

wounds. As such, it was reasonable to infer that defendant possessed a firearm during the

commission of second-degree murder.

IV. ADMISSION OF TESTIMONY REGARDING CELLULAR TELEPHONE RECORDS

Defendant argues that the trial court erred by denying his request to exclude a police

officer’s testimony about cellular tower activity for a cellular telephone used to make certain

calls in this case. We disagree.

At trial, defendant objected to the testimony of Officer Robert Skender, arguing that his

testimony called for expert testimony, which he was not qualified to provide. The trial court,

however, permitted Skender to testify as a lay witness, specifically noting that the prosecutor was

not attempting to qualify the witness as an expert. Defendant’s primary argument on appeal is

that Skender’s testimony was not reliable because of the technology involved and not because of

Skender’s qualifications; this particular argument was not raised below and, therefore, is

unpreserved. See Aldrich, 246 Mich App at 116. “Unpreserved claims of evidentiary error are

reviewed for plain error affecting the defendant’s substantial rights.” Benton, 294 Mich App at

202.

MRE 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the

form of opinions or inferences is limited to those opinions or inferences which 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 in issue.

MRE 702 provides:

If the court determines that scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise if

(1) the testimony is based on sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

Defendant argues that Skender’s testimony should not have been admitted because it did

not meet the requirements of MRE 702. Skender’s testimony, however, was not admitted as

expert testimony, but as lay witness testimony. Therefore, it was not necessary for his testimony

to meet the requirements of MRE 702. Although defendant argued below that Skender’s

testimony required expertise, he does not adequately make this argument on appeal. In other

words, defendant argues about applying MRE 702 to the testimony without even first adequately

arguing about or establishing the initial step: that the testimony was “expert” testimony and not

“lay witness” testimony.

-6-

Even if we interpret defendant’s argument as an argument that the testimony should have

been deemed “expert” testimony, we would find no basis for reversal because, first, Skender did

testify that he had received targeted training on “cell phone analysis and mapping.” In addition,

with regard to the unpreserved contention about the reliability of the technology involved,

defendant’s citation to a witness in an unpublished case and his citation to a single scientific

paper is inadequate to establish plain error.3

V. DEPARTURE SENTENCE

Defendant argues that the trial court abused its discretion by imposing a disproportionate

sentence that exceeded the minimum guidelines range. We conclude that resentencing is

required because the trial court departed from the sentencing guidelines range without providing

adequate reasons for its departure and the extent of the departure.

Defendant’s sentencing guidelines range for his conviction of second-degree murder was

162 to 270 months. The trial court departed from this range and sentenced defendant to 30 to 50

years in prison. This Court reviews “a trial court’s upward departure from a defendant’s

calculated guidelines range for reasonableness.” People v Walden, 319 Mich App 344, 351; 901

NW2d 142 (2017). The reasonableness of a sentence is reviewed for an abuse of discretion. Id.

In People v Steanhouse (On Remand), 322 Mich App 233, 237-238; 911 NW2d 253 (2017), this

Court stated:

When reviewing a departure sentence for reasonableness, we must review

whether the trial court abused its discretion by violating the principle of

proportionality set forth in [People v Milbourn, 435 Mich 630; 461 NW2d 1

(1990)]. A trial court abuses its discretion if it violates the principle of

proportionality test by failing to provide adequate reasons for the extent of the

departure sentence imposed. . . . In such cases, this Court must remand to the trial

court for resentencing. [Citations and quotation marks omitted.]

In Steanhouse (On Remand), 322 Mich App at 238-240, this Court further explained:

Under the principle of proportionality standard, a sentence must be

proportionate to the seriousness of the circumstances surrounding the offense and

the offender. Accordingly, the sentencing court must impose a sentence that takes

into account the nature of the offense and the background of the offender.

Generally, sentences falling within the minimum sentencing guidelines range are

presumptively proportionate. However, a departure sentence may be imposed

when the trial court determines that the recommended range under the guidelines

is disproportionate, in either direction, to the seriousness of the crime. Factors

3

We also note that while the trial court stated that the cellular telephone activity “corroborated”

Fomby’s testimony, the court found her identification credible based on many other factors. In

addition, Officer Skender acknowledged that the location information from the telephone was

inexact.

-7-

that may be considered under the principle of proportionality standard include, but

are not limited to:

(1) the seriousness of the offense; (2) factors that were

inadequately considered by the guidelines; and (3) factors not

considered by the guidelines, such as the relationship between the

victim and the aggressor, the defendant’s misconduct while in

custody, the defendant’s expressions of remorse, and the

defendant’s potential for rehabilitation.

An appellate court must evaluate whether reasons exist to depart from the

sentencing guidelines and whether the extent of the departure can satisfy the

principle of proportionality. Therefore, even in cases in which reasons exist to

justify a departure sentence, the trial court’s articulation of the reasons for

imposing a departure sentence must explain how the extent of the departure is

proportionate to the seriousness of the circumstances surrounding the offense and

the offender.

The first inquiry in our reasonableness review is whether there were

circumstances that are not adequately embodied within the variables used to score

the guidelines. . . . [T]he guidelines remain a highly relevant consideration in a

trial court’s exercise of sentencing discretion that trial courts must consult and

take . . . into account when sentencing. To conduct such an analysis, we must

compare the stated reasons for exceeding the guidelines with the scored offense

variables (OVs) to determine whether those reasons were already encompassed

within the guidelines. Specifically, we must determine whether the trial court

abused its discretion by imposing a departure sentence without articulating

whether the guidelines adequately took into account the conduct alleged to

support the particular departure imposed. [Citations and quotation marks omitted;

second emphasis added.]

In imposing the sentence of 30 to 50 years for the second-degree murder conviction, the

failed to expressly provide reasons for the departure or the extent of the departure. Accordingly,

the caselaw requires resentencing. Id. at 238; People v Steanhouse, 500 Mich 453, 476; 902

NW2d 327 (2017).4

4

We note that the trial court is not precluded from imposing the same sentence on remand, as

long as it provides adequate reasons for doing so.

-8-

We affirm defendant’s convictions, but remand for resentencing consistent with this

opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Patrick M. Meter

/s/ Colleen A. O'Brien

-9-