The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 17, 2020
Plaintiff-Appellee,
v No. 346380
Wayne Circuit Court
AMARIA PALMORE, LC No. 18-000722-01-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of discharging a firearm in a building
causing physical injury, MCL 750.234b(3); assault with intent to great bodily harm less than
murder (AWIGBH), MCL 750.84; assault with a dangerous weapon (felonious assault), MCL
750.82; possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b; and domestic violence, MCL 750.81(2). The trial court sentenced defendant to 62
months to 15 years’ imprisonment for discharging a firearm in a building causing physical injury,
57 months to 10 years imprisonment for AWIGBH, 2 to 4 years’ imprisonment for felonious
assault, 2 years’ imprisonment for felony-firearm, and 93 days in jail for domestic violence. The
trial court also ordered defendant to pay $1300.00 in court costs. We affirm.
I. FACTUAL BACKGROUND
Defendant and Cortez Milliner were in a long-term romantic relationship and lived
together. On December 3, 2017, defendant shot Milliner in his “groin area.” After Milliner was
shot, defendant carried Milliner to his vehicle and drove Milliner to the hospital. When they
arrived at the hospital, Milliner could not breathe and needed to be intubated. Officers responded
to Milliner and defendant’s home and located a gun holster on a bed and an unloaded
semiautomatic pistol and a magazine containing live ammunition on the kitchen counter. The next
day, Officer Damario Elliot-Glenn, a Detroit police officer, went to the hospital to obtain a
statement from Milliner. Officer Elliot-Glenn testified that while he was at the hospital, the
attending nurse presented him with a piece of paper on which Milliner had written that defendant
-1-
had shot him. Officer Elliot-Glenn took custody of defendant, who had come to the hospital to try
and visit Milliner, and transported him to the Detroit Detention Center.
II. HEARSAY
On appeal, defendant first argues the trial court improperly admitted hearsay statements
made to police officers by Milliner identifying defendant as the shooter. Because the issue
presented has not been preserved for review, this Court must review the claim “for plain error
affecting defendant’s substantial rights.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d
402 (2014). “To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To
show that a defendant’s substantial rights were affected, there must be “a showing of prejudice,
i.e., that the error affected the outcome of the lower court proceedings.” Id. As such, “[r]eversal
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. (quotation marks and citations
omitted).
Defendant argues that police officers’ statements that Milliner identified defendant as the
shooter were inadmissible hearsay. “ ‘Hearsay’ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” People v Johnson, 315 Mich App 163, 193; 889 NW2d 513 (2016), quoting MRE
801(c). “Hearsay is generally not admissible unless an exception to the rule applies.” Id. Certain
statements made outside of trial, however, are by definition not hearsay under MRE 801(d). For
example, under MRE 801(d)(1), a witnesses’ prior statement is not hearsay, if:
[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent with the declarant's
testimony, and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition, or (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, or (C) one of
identification of a person made after perceiving the person.
While we agree with defendant that the statements at issue do not fall under MRE
801(d)(1)(B), defendant fails to address MRE 801(d)(1)(C). MRE 801(d)(1)(C) provides that a
prior statement is not defined as hearsay where the earlier statement is one of identification, and
the witness is available for cross-examination. People v Malone, 445 Mich 369, 376-377; 518
NW2d 418 (1994). Therefore, it is substantively admissible as nonhearsay. Id. at 378. The rule
“does not require laying a foundation other than that the witness is present and found to be
available for cross-examination.” Id. at 377.
At trial, Milliner testified that on December 3, 2017, he went to retrieve his jacket from the
closet, turned around and saw defendant pointing a gun at him, and defendant shot him. Milliner
stated that because he was intubated and unable to speak at the hospital, he wrote down
“[Defendant] shot me.” Milliner identified the piece of paper at trial and it was admitted into
-2-
evidence. Defense counsel cross-examined Milliner regarding the shooting, but did not inquire
about Milliner’s identification of defendant. Because Milliner’s statement was clearly one of
identification after perceiving defendant, and because he was available for cross-examination, the
statement was not hearsay. MRE 801(d)(1)(C).
Defendant also argues that the trial court erred by admitting police officers’ testimony that
Milliner identified defendant as the man who shot him. This argument is without merit.
At trial, Detective Jeffrey Williams testified that on December 4, 2017, he went to Detroit
Receiving Hospital to investigate the shooting. Williams testified that he asked Milliner if
defendant had shot him and Milliner nodded yes. On the second day of trial, the prosecution,
without objection by defendant, admitted a stipulation regarding the testimony of Sergeant Herbert
Forton, a Detroit Receiving Hospital police officer. According to the stipulated testimony, on
December 4, 2017, Milliner’s nurse showed Sergeant Forton the piece of paper on which Milliner
wrote “[Defendant] shot me.” Officer Damario Elliot-Glenn testified at trial that while he was at
the hospital, Milliner’s nurse also presented him with the piece of paper on which Milliner wrote
that defendant had shot him. The police officers were subject to cross-examination, and their
statements at trial were consistent with Milliner’s testimony at trial.
Pursuant to MRE 801(d)(1)(C), “third-party testimony of an out-of-court statement of
identification by an identifier/declarant is substantive nonhearsay evidence and is admissible even
if it goes beyond the simple facts and circumstances of the prior out-of-court statement of
identification—if the identifier/declarant testifies and is subject to cross-examination.” People v
Sykes, 229 Mich App 254, 266-267; 582 NW2d 197 (1998). Because the police officers’ testimony
about Milliner’s out-of-court statements of identification were admissible as nonhearsay, the trial
court did not err in admitting this evidence. Further, “[t]hird-party identification testimony by a
police officer, including repetition of the statements of identification, is not hearsay, and the
admission of such testimony is within the discretion of the trial court.” People v Legrone, 205
Mich App 77, 83; 517 NW2d 270 (1994) (emphasis added).
While defendant additionally claims that the admission of Milliner’s previous
identification of defendant improperly bolstered Milliner’s credibility, defendant did not dispute
at trial that he was the one who shot Milliner. Defendant claimed the shooting was accidental. The
officers did not testify about the substance of Milliner’s allegations regarding how the shooting
occurred, only the fact that Milliner identified defendant as the shooter, which was not in dispute.
Therefore, defendant is not entitled to a new trial.
Defendant also argues defense counsel was ineffective for failing to object to the admission
of the alleged hearsay statements made to police officers by Milliner identifying defendant as the
shooter. However, it is well established that this Court will not find trial counsel to be ineffective
where, even if counsel had made an objection, that objection would have been futile. People v
Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). As previously discussed, the third-party
identification testimony by the police officers qualifies as nonhearsay under MRE 801(d)(1)(C).
Because the testimony by the police officers regarding Milliner’s previous statements of
identification does not constitute hearsay, defense counsel was not ineffective for failing to make
a groundless objection to the identification testimony.
III. DOUBLE JEOPARDY
Defendant next argues that his convictions for AWIGBH, felonious assault, discharging a
firearm in a building causing injury, and domestic violence, arising from a single gunshot, violate
the double jeopardy prohibition against multiple punishments for the same offense. To preserve a
-3-
double jeopardy claim, the defendant must raise the issue at the trial court level. People v McGee,
280 Mich App 680, 682; 761 NW2d 743 (2008). Because defendant failed to raise this issue before
the trial court, it is unpreserved. “However, a double jeopardy issue presents a significant
constitutional question that will be considered on appeal regardless of whether the defendant raised
it before the trial court.” Id.
“A double jeopardy challenge presents a question of constitutional law reviewed de novo
on appeal.” People v Ackah-Essien, 311 Mich App 13, 30; 874 NW2d 172 (2015). “We review
an unpreserved claim that a defendant's double jeopardy rights have been violated for plain error
that affected the defendant's substantial rights, that is, the error affected the outcome of the lower
court proceedings.” McGee, 280 Mich App at 682. To avoid forfeiture under the plain error rule,
it must be shown that error occurred, the error was plain, and the plain error affected substantial
rights.” Carines, 460 Mich at 763.
The United States and the Michigan Constitutions protect a defendant from being placed
twice in jeopardy for the same offense. US Const, Am V; Const 1963, art 1, § 15. “The prohibition
against double jeopardy protects individuals in three ways: (1) it protects against a second
prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the
same offense after conviction; and (3) it protects against multiple punishments for the same
offense.” People v Miller, 498 Mich 13, 17; 869 NW2d 204 (2015) (quotation marks and citation
omitted). Because defendant’s convictions and sentences were on the basis of the same conduct,
this case involves the multiple punishments strand of double jeopardy. Id.
The multiple punishments strand of double jeopardy is designed to ensure that
courts confine their sentences to the limits established by the Legislature and
therefore acts as a restraint on the prosecutor and the Courts. The multiple
punishments strand is not violated [w]here a legislature specifically authorizes
cumulative punishment under two statutes . . . . Conversely, where the Legislature
expresses a clear intention in the plain language of a statute to prohibit multiple
punishments, it will be a violation of the multiple punishments strand for a trial
court to cumulatively punish a defendant for both offenses in a single trial. Thus,
the question of what punishments are constitutionally permissible is not different
from the question of what punishments the Legislative Branch intended to be
imposed. [Id. at 17-18 (quotation marks and citations omitted).]
“The purpose of the double jeopardy protection against multiple punishments for the same
offense is to protect the defendant from having more punishment imposed than the Legislature
intended.” People v Dickinson, 321 Mich App 1, 10; 909 NW2d 24 (2017), (quotation marks and
citation omitted). Absent such clear legislative intent to impose multiple punishments, this Court
must determine whether the sentences were imposed for the “same offense” as defined by the test
in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). People v
Smith, 478 Mich 292, 315-316; 733 NW2d 351 (2007), aff’d in part, rev’d in part on other grounds
478 Mich 292 (2007). Two offenses can, after all, have common elements and still be separate for
double jeopardy purposes if the legislative intent that separate offenses be created is clear from the
face of the statutes or the legislative history. People v Ford, 262 Mich App 443, 449; 687 NW2d
119 (2004). “[T]he Blockburger test is a tool to be used to ascertain legislative intent,” and in
applying this test, “a court must inquire whether each offense contains an element not contained
-4-
in the other offense.” Dickinson, 321 Mich App at 11. “If the two offenses do not each contain at
least one element that the other does not, double jeopardy bars additional punishment.” Id. If,
however, “two distinct statutes cover the same conduct but each requires proof of an element the
other does not, a presumption exists that the Legislature intended multiple punishments unless the
Legislature expressed a contrary intent.” Id. (quotation marks and citation omitted). Thus, if the
Legislature has clearly intended to impose multiple punishments, the imposition of multiple
sentences is permissible regardless whether the offenses have the same elements, but if the
Legislature has not clearly expressed its intent, multiple offenses may be punished if each offense
has an element that the other does not. Smith, 478 Mich at 316.
The AWIGBH statute, MCL 750.84(1)(a), makes it is a 10-year felony to “[a]ssault[ ]
another person with intent to do great bodily harm, less than the crime of murder.” MCL 750.84(3)
provides that “[t]his section does not prohibit a person from being charged with, convicted of, or
punished for any other violation of law arising out of the same conduct as the violation of this
section.” Likewise, the statute prohibiting the discharge of a firearm in a dwelling or occupied
structure provides, “[t]his section does not prohibit an individual from being charged with,
convicted of, or punished for any other violation of law that is committed by that individual while
violating this section.” MCL 750.234b(8). The plain language of MCL 750.84(3) and MCL
750.234b(8) make it clear that the legislature intended that defendant’s convictions of AWIGBH
and discharge of a firearm at a dwelling or unoccupied structure does not preclude a conviction of
felonious assault or domestic violence. The most reliable evidence of our Legislature’s intent is
the plain language of the statute. People v Rea, 500 Mich 422, 427, 902 NW2d 362 (2017). And,
there is no double jeopardy violation when a defendant is convicted and sentenced under multiple
statutes that authorize cumulative punishment for the same conduct. Miller, 498 Mich at 17-18.
Therefore, there is no double jeopardy violation with respect to these two offenses.
More importantly, each of the convictions defendant is challenging involve different
elements. The elements of AWIGBH are: “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than murder.”
People v Brown, 267 Mich App 141, 147; 703 NW2d 230 (2005) (quotation marks and citation
omitted.) “The elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and
(3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery.” People v Avant, 235 Mich App 499, 505; 597 NW2d 864 (1999). The elements of
discharge of a weapon in a building are: (1) the defendant intentionally discharges a firearm, (2)
in a facility, (3) the defendant knows or has reason to believe is an occupied structure, and (4) in
reckless disregard for the safety of any individual. People v Henry, 239 Mich App 140, 143; 607
NW2d 767 (1999). The domestic violence statute provides that “an individual who assaults or
assaults and batters . . . an individual with whom he or she has or has had a dating relationship . .
. is guilty of a misdemeanor. . . .” People v Stricklin, 322 Mich App 533, 537; 912 NW2d 601
(2018), quoting MCL 750.81.
In People v Strawther, 480 Mich 900; 739 NW2d 82 (2007), our Supreme Court
determined that convictions of both AWIGBH and felonious assault do not violate the double
jeopardy because the two crimes have different elements. A Supreme Court order is binding if it
is “a final Supreme Court disposition of an application, and the order contains a concise statement
of the applicable facts and the reason for the decision.” People v Crall, 444 Mich 463, 464 n 8;
510 NW2d 182 (1993). In addition, by definition, the crimes of felonious assault and discharge of
a weapon in a building require the offender to be in possession of a dangerous weapon, while the
-5-
crime of AWIGBH does not. Further, to be convicted of discharge of a weapon in a building,
defendant must intentionally discharge a firearm in a facility in reckless disregard for the safety of
any individual. These elements are not required to be convicted of AWIGBH nor felonious assault.
Lastly, a conviction of domestic violence requires a dating relationship, which is not an element
in any of defendant’s other convictions. Because the offenses at issue involve different elements,
there was no double jeopardy violation.
Defendant nevertheless argues that the legislative intent to prohibit multiple punishments
is expressed in the inconsistent mens rea requirements to prove AWIGBH and felonious assault.1
Defendant, however, cites no authority for this proposition. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his claims,
nor may he give only cursory treatment with little or no citation of supporting authority.” People
v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). Further, when an offense requires
criminal intent, the necessary mens rea is an element of the offense. If offenses contain differing
elements, conviction under both does not constitute a double jeopardy violation. Smith, 478 Mich
at 319. These two offenses contain differing elements.
IV. IMPROPER SENTENCING CONSIDERATIONS
Defendant next argues that he should be resentenced because the trial court based his
sentence on his lack of remorse, thus punishing him for exercising his right to maintain his
innocence and refusal to admit guilt. We disagree.
“Generally, this Court reviews a trial court’s sentencing decisions for an abuse of
discretion.” People v Conley, 270 Mich App 301, 312; 715 NW2d 377 (2006). However, because
defendant failed to preserve this issue for appeal, his claim is reviewed for plain error affecting
defendant’s substantial rights. Id.
“A court cannot base its sentence even in part on a defendant's refusal to admit guilt.” Id.
at 314 (quotation marks and citation omitted). This Court
look[s] to three factors to determine if a sentencing court improperly considered a
defendant’s refusal to admit guilt: (1) the defendant's maintenance of innocence
after conviction; (2) the judge’s attempt to get the defendant to admit guilt; and (3)
the appearance that had the defendant affirmatively admitted guilt, his sentence
would not have been so severe. [People v Payne, 285 Mich App 181, 194; 774
NW2d 714 (2009) (quotation marks and citation omitted).]
The presence of all three factors indicates that the sentence was likely improperly influenced by a
defendant’s refusal to admit guilt. Id.
1
To be convicted of AWIGBH requires proof that defendant acted with “intent to do great bodily
harm, less than murder.” MCL 750.84(1)(a). To be convicted of felonious assault, requires proof
that defendant did not intent “to commit murder or to inflict great bodily harm less than murder. .
. .” MCL 750.82(1).
-6-
Here, the trial court did not attempt to make defendant admit guilt or consider his refusal
to admit guilt at sentencing. With respect to the first factor, defendant did not formally express
acceptance of guilt. Instead defendant stated that he “apologize[d] to the victim for the tragic event
that occurred,” and expressed that “[i]t was never [his] intent for any of this to transpire,” and
asked for leniency. With respect to the second factor, the trial court did not attempt to get
defendant to admit guilt. The trial court only gave defendant the opportunity for allocution. Lastly,
the trial court did not indicate that if defendant admitted guilt, he would have received a less severe
sentence. The trial court explained that its primary purpose in imposing defendant’s sentence was
to protect the public and deter other criminals. The trial court mentioned that after Milliner was
shot, defendant initially claimed that Milliner shot himself to escape responsibility for his actions.
Thus, the trial court only mentioned defendant’s unwillingness to accept responsibility and his
attempt to blame Milliner for the shooting, not his failure to admit guilt. The trial court’s
statements indicate that the court believed defendant was a poor prospect for rehabilitation.
Resentencing is not warranted when “nothing in the record suggests that the trial court would have
been more lenient had defendant admitted guilt.” Payne, 285 Mich App at 194. Accordingly,
defendant has failed to establish the trial court committed plain error at sentencing that affected
his substantial rights. Carines, 460 Mich at 763.
V. ASSESSMENT OF COURT COSTS
Defendant’s final argument is that the trial court’s assessment of court costs under MCL
769.1k(1)(b)(iii) constituted an unconstitutional tax and must be vacated. We disagree.
“Whether a charge is a permissible fee or an illegal tax is a question of law.” People v
Cameron, 319 Mich App 215, 220; 900 NW2d 658 (2017) (citation omitted). Constitutional
questions such as this are reviewed de novo. Id. “[T]he burden of proving that a statute is
unconstitutional rests with the party challenging it.” Id. (citation omitted). However, because
defendant failed to preserve this issue for appeal, his claim is reviewed for plain error affecting
defendant’s substantial rights. Carines, 460 Mich at 763.
Under MCL 769.1k, trial courts may impose court costs on defendants as long as those
costs are “reasonably related to the actual costs incurred by the trial court.” Cameron, 319 Mich
App at 225. In Cameron, this Court recently held that the cost assessment of MCL 769.1k is a tax,
not a fee, and that the tax is constitutional and within a trial court’s power to assess to a defendant.
Id. at 236. Defendant acknowledges that Cameron is controlling precedent that binds us but argues
that Cameron was wrongly decided. Regardless of the merits of defendant’s position, this Court
-7-
is bound to follow Cameron, under the rule of stare decisis, because it is a published decision of
this Court that has not been overruled. People v Cross, 281 Mich App 737, 738; 760 NW2d 314
(2008). Because Cameron is controlling precedent, defendant has failed to show how the
imposition of costs under MCL 769.1k constitutes plain error.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
-8-