Petition for Writ of Certiorari — Demetrius Desean Morgan, Petitioner v. Michigan

APPENDIX A

Decision of the Michigan Court of .Appeals

'

o

Neutral

As of: August 20, 2019 10:52 PM Z

People v. Morgan

Court of Appeals of Michigan

November 29, 2018, Decided

No. 335855

Reporter

2018 Mich. App. LEXIS 3577 *; 2018 WL 6252031

PEOPLE OF THE STATE OF MICHIGAN, PlaintiffAppellee, v DEMETRIUS DESEAN MORGAN,

Defendant-Appellee.

Notice: THIS IS AN UNPUBLISHED OPINION. IN

ACCORDANCE WITH MICHIGAN COURT OF

APPEALS RULES, UNPUBLISHED OPINIONS ARE

NOT PRECEDENTIALLY BINDING UNDER THE

RULES OF STARE DECISIS.

Subsequent History: Leave to appeal denied by,

Motion granted by People v. Morgan, 2019 Mich. LEXIS

1182 (Mich.. July 2. 2019)

Prior History: [*1] Wayne Circuit Court. LC No. 15008349-01-FC.

People v. Morgan, 2018 Mich. Add. LEXIS 1543 (Mich.

Ct. Add.. Apr. 17. 2018)

Core Terms

eyewitness, juror, appellate counsel, gang, shooter,

identification, cousin's, station, rap, interpreters,

ineffective, homicide, impartial, argues, rights,

identification of a defendant, plain error, trial court, signlanguage, photographic, asserting, witness's, picture,

defendant argues, challenges, deafness, offering,

casino, lineup, prosecution's theory

Judges: Before: MURRAY, C.J., and METER and

GLEICHER, JJ.

Opinion

Per Curiam.

Defendant appeals by delayed leave granted his

convictions, following a jury trial, of first-degree

premeditated murder, MCL 750.316(1)(a): possession of

a firearm by a felon, MCL 750.224t and possession of a

firearm during the commission of a felony, MCL

750.227b. The trial court imposed a sentence of two

years' imprisonment for the felony-firearm conviction, to

be served before and consecutively to concurrent

sentences of life imprisonment without parole for the

murder conviction and two to five years' imprisonment

for the felon-in-possession conviction. We affirm.

I. BASIC FACTS

Defendant's convictions arose from a homicide that took

place outside a Citgo gasoline station at the corner of

Chalmers St. and Houston Whittier St. in Detroit during

the early-morning hours of September 10, 2015. The

victim was shot several times at close range. The

prosecution's theory of the case was that defendant was

affiliated with a gang that regarded that gas station as

part of its territory and that the victim had "intruded" on

the territory. The defense conceded that defendant was

present at the gas station for some of the time that [*2]

the victim was there, but maintained that defendant had

left the premises at the time of the shooting and was

misidentified as the shooter.

The homicide was captured by surveillance video

equipment, but it was not possible to identify the shooter

from the resulting imagery, although the footage did

appear to show the shooter wearing some apparel

similar to what defendant was wearing earlier that night.

The sole eyewitness to the homicide was a nonspeaking

deaf man, who during the investigation twice selected

defendant's image from a photographic lineup, and who

at trial, with the assistance of two sign-language

interpreters, identified defendant as the shooter—albeit

with some apparent equivocation. The prosecution also

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People v. Morgan

presented evidence that a gang known as "Chedda

Ave" trafficked in narcotics in, and asserted control over,

the area of the homicide, and that defendant was known

publicly as a member of a rap group with the same

name.

Defendant's cousin told the police that defendant had

come to her home that night and remained there

through the time of the shooting.1 Defendant in turn

testified that he went to his cousin's home from the

Citgo station, but that he then changed clothes [*3] and

visited a casino for about 15 minutes. A police officer

testified that defendant had telephone conversations

with his mother while he was incarcerated as a suspect

in this case, and that in those calls they talked about an

alibi and the mother advised defendant not to say

anything about the casino.

In this appeal, defendant challenges his convictions,

raising issues through both appointed appellate counsel,

and in a pro se supplemental brief filed pursuant to

Supreme Court Administrative Order No. 2004-6,

Standard 4 (Standard 4 brief).

II. APPELLATE COUNSEL'S ISSUES

Appellate counsel first argues that defendant's trial

attorney was ineffective for not having moved the trial

court to suppress the eyewitness's identification of

defendant on the grounds that that witness's

identification from the investigation onward was tainted

by improper suggestiveness or otherwise as the result

of reliance by the police and prosecution of unqualified

sign-language

interpreters.

Appellate

counsel

alternatively argues that the prosecution presented

insufficient evidence to establish defendant's identity as

the shooter and that defense counsel was ineffective for

not having moved the trial court to [*4] either quash the

bindover or direct a verdict of acquittal at trial. Appellate

counsel moved for a new trial on these bases, but the

trial court denied the motion, and did so without

supplementing the record with an evidentiary hearing.

A. IDENTIFICATION PROCEDURES

A trial court's decision on a motion for a new trial is

reviewed for an abuse of discretion. People v Cress.

468 Mich 678. 691: 664 NW2d 174 (2003): People v

Lemmon. 456 Mich 625. 648 n 27: 576 NW2d 129

(1998). We also review for an abuse of discretion a

court's decision regarding whether to hold an evidentiary

1 She later stated that she did not "know if he left or not

because [she] went to sleep."

hearing. See, e.g., People v Unger, 278 Mich Add 210,

216-217: 749 NW2d 272 (2008).

"A claim of ineffective assistance of counsel presents a

mixed question of law and fact. This Court reviews a

trial court's findings of fact, if any, for clear error, and

reviews de novo the ultimate constitutional issue arising

from an ineffective assistance of counsel claim." People

v Brown. 294 Mich Add 377. 387: 811 NW2d 531 (2011)

(citations omitted). However, where there has been no

evidentiary hearing on the issue, this Court's review of

claims of ineffective assistance of counsel is limited to

mistakes apparent on the existing record. See id.2 "In

reviewing a defendant's claim of ineffective assistance

of counsel, the reviewing court is to determine (1)

whether counsel's performance was objectively

unreasonable and (2) whether the defendant was

prejudiced by [*5] counsel's defective performance."

People v Rockev. 237 Mich Add 74. 76: 601 NW2d 887

(1999). Regarding the latter, the defendant, to obtain

relief, must show that the result of the proceeding was

fundamentally unfair or unreliable and that but for

counsel's poor performance, the result would have been

different. People v Messenger, 221 Mich Add 171, 181;

561 NW2d 463(1997).

A trial court's decision to admit identification evidence

should not be reversed unless clearly erroneous, and

clear error exists when the reviewing court is left with a

definite and firm conviction that a mistake was made.

People v Kurvlczvk. 443 Mich 289, 303: 505 N.W.2d

528 (GRIFFIN, J., joined by MALLETT, J ), 318

(BOYLE, J., joined by RILEY, J., joining GRIFFIN, J., in

pertinent part); 443 Mich. 289: 505 NW2d 528 (1993).

implied overruling on other grounds recognized by

People v Perry, 317 Mich Add 589. 598: 895 NW2d 216

(2016): People v Williams. 244 Mich Add 533, 537: 624

NW2d 575 (2001). The fairness of an identification

procedure is evaluated in light of the total circumstances

to determine whether the procedure was so

impermissibly suggestive as to render the identification

irreparably unreliable. Kurvlczvk. 443 Mich at 311-312,

318; People v McCray, 245 Mich Add 631, 639: 630

NW2d 633 (2001): People v Davis. 146 Mich Add 537,

548: 381 NW2d 759 (1985). If a witness is exposed to

an impermissibly suggestive pretrial lineup, that

witness's in-court identification of the defendant should

2We note that this Court denied defendant's motion for a

remand. People v Morgan, unpublished order of the Court of

Appeals, issued April 17, 2018 (Docket No. 335855). We

decline to revisit this decision.

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Page 3 of 8

People v. Morgan

not be allowed unless the prosecution shows by clear

and convincing evidence that the in-court identification

has a sufficiently independent basis to purge the taint of

the [*6] improper identification. People v Gray, 457

Mich 107. 115: 577 NW2d 92 (1998): People v Kachar.

400 Mich 78. 91-93: 252 NW2d 807 (1977). "The need

to establish an independent basis for an in-court

identification

arises

[only] where the

pretrial

identification is tainted by improper procedure or is

unduly suggestive." People v Barclay, 208 Mich App

670, 675: 528 NW2d 842 (1995).

Appellate counsel asserts that the eyewitness's

deafness "made it impossible for him to communicate

with hearing, speaking persons." Appellate counsel,

however, exaggerates the eyewitness's communication

capabilities. Even persons with normal hearing often

supplement speaking and listening with other forms of

communication, such as gestures and writing. Appellate

counsel does not dispute the credentials or performance

of the interpreters who assisted the eyewitness at trial,

or of the one who assisted with part of the investigation

and appeared as an expert at trial. Although the

eyewitness's deafness presented special challenges in

communicating with the police, and at trial, those

challenges were not insurmountable.

Appellate counsel additionally states that the

eyewitness, "apparently, from the evidence presented,

could not read or write effectively," but offers no record

citations to support that assertion. In fact, the record

shows that the eyewitness could sign his name, [*7]

and otherwise leaves unanswered the question of his

general state of literacy. Regardless, in making issue of

the eyewitness's reading ability, appellate counsel

mentions only that the eyewitness signed a statement

prepared for him early in the investigation as an

instance where written words came into play in

connection with that witness. But counsel does not

assert, let alone offer a record citation to show, that this

printed statement was relied upon by anyone involved in

the case thereafter. Further, the sign-language expert

offered compelling testimony at trial to the effect that the

eyewitness's entire initial interview with the police,

relying on the limited interpreting abilities of one officer,

resulted in no useful or reliable information, including

the statement the eyewitness signed. Although

appellate counsel suggests that the eyewitness's

offering of "statements to various law enforcement

parties without the benefit of a proper interpreter"

resulted in a tainted identification of defendant, counsel

presents no reason to suppose that anything from the

interview involving the officer with poor signing

capabilities was suggestive of defendant as the shooter.

Appellate counsel [*8] also offers no argument

impugning either of the photographic lineups from which

the eyewitness selected defendant's image, and the

descriptions of those proceedings at trial included no

basis for supposing that any such impropriety tainted

the identifications. A police sergeant described visiting

the eyewitness at the latter's workplace, where the two

were assisted in communications only by the

eyewitness's coworker or supervisor, and individually

displaying for the eyewitness six photographs, from

which the eyewitness showed obvious excitement over

the image of defendant and none other. The police

sergeant described gestures from the eyewitness that

required no expert to interpret, explaining that "he

emphatically pointed at the picture and tapped it several

times" and also "gestured . . . with his hands in the

shape of a handgun and pointed at the picture . . . and

made several motion[s] with his hand as if he were

shooting someone on the ground." The police sergeant

additionally testified that the police had no suspect in

view when trying to communicate with the eyewitness

earlier in the investigation such that they might have

suggested, then, a possible suspect to him. The signlanguage [*9] expert in turn described acting as

interpreter when the eyewitness was again presented

with the photographic lineup; he described how the

eyewitness, upon reaching defendant's image, "was

pointing and pointing that's the shooter ... as he

pounded on the page." The expert stated that he was

physically reacting to defendant's image such that "you

almost didn't even need to know sign language" to

understand that the eyewitness was emphatically

identifying defendant. Further, the sign-language expert

made clear that for his part in interpreting for the

eyewitness, "[h]is reading abilities . . . wouldn't play a

part at all," effectively neutralizing appellate counsel's

speculations concerning the eyewitness's ability to read.

Appellate counsel argues that the eyewitness's

performance at the preliminary examination did not

include a reliable identification of defendant as the

shooter, and points out some apparent inconsistencies

in what the eyewitness had to say, but appellate counsel

does not argue that the proceeding itself infected the

eyewitness with some improper suggestion that

defendant was the guilty person.

Further, although appellate counsel complains about the

lack of proper "translations" [*10] of the eyewitness's

sign-language communications, appellate counsel stops

short of impugning the credentials, or of offering

QUWUMl.

Page 4 of 8

People v. Morgan

examples of inaccuracy, of the persons who performed

that function at trial or of the person who was

recognized as an expert at trial and who also assisted in

the investigation.

In sum, although the eyewitness's deafness presented

special communication problems, appellate counsel has

failed to show that the police or prosecution did not

recognize those challenges and meet them head on.

Appellate counsel has failed to show that the

eyewitness's identification of defendant as the shooter

was tainted by improper suggestiveness. Because the

eyewitness appeared at trial with no improper taint

regarding his ability to identify defendant, defense

counsel would have had nothing to gain from seeking to

suppress that identification. A trial attorney is "not

required to argue a frivolous or meritless motion."

People v Gist. 188 Mich Add 610. 613; 470 NW2d 475

(1991).

B. SUFFICIENCY OF THE EVIDENCE

Whether the prosecution presented sufficient evidence

to support a verdict of guilty is a question of law, calling

for review de novo. People v Herndon, 246 Mich Add

371, 415: 633 NW2d 376 (2001). When reviewing the

sufficiency of evidence in a criminal case, a reviewing

court must view the evidence [*11] of record in the light

most favorable to the prosecution to determine whether

a rational trier of fact could have found that each

element of the crime was proved beyond a reasonable

doubt. Id.

Appellate counsel argues that the sole eyewitness's

equivocation in identifying defendant at trial as the

shooter left the jury without a sufficient basis for

concluding beyond a reasonable doubt that defendant

was in fact the guilty person. We disagree.

The identity of the offender is an element in every

offense. People v Yost. 278 Mich Add 341, 356; 749

NW2d 753 (2008). The accounts of a single witness can

suffice to persuade a jury of a defendant's guilt beyond

a reasonable doubt. See, generally, People v Jelks, 33

Mich Add 425: 190 NW2d 291 (1971).

In this case, the eyewitness unequivocally testified that

he had selected defendant's image at the photographic

lineups presented to him as part of the investigation, but

when asked to identify defendant at trial, the witness

could not seem to avoid some equivocation. When the

prosecutor later asked the eyewitness if he realized that

the picture he selected from the lineup was of

defendant, the witness replied, "He didn't have a big

face he had a small face he didn't have a big head he

had a small head . . . almost like a rat face," adding,

"almost like [*12] he had think [sic] eyebrows he had

these big eyebrows you know I think that's the picture."

A jury could have reasonably viewed the eyewitness's

apparent equivocation over a matter not actually in

doubt (i.e., that the picture the eyewitness chose was a

picture of defendant) as signaling that the witness's

nervousness, or other excitement, in the trial setting

caused him to pepper his identifications of defendant

with impressions relating to how a photograph of a

person might not perfectly match that person's later

personal appearance.

Further, the sign-language expert offered a benign

explanation for what might otherwise seem a striking

inconsistency

in

the

eyewitness's

statements.

Confronted at trial with indications that while the

investigation was in progress he had told the

prosecution that he had seen the shooter "many times"

before, the eyewitness replied, "I said I never saw him

before." Asked if his expertise in American sign

language suggested an explanation for the apparently

inconsistent answers, the expert offered the following

response:

As an interpreter the word ["]defendant["] make us

pause. Should make us as interpreters pause

because [deaf] people . . . don't have the[*13]

same exposure [to words] like ["]defendant["] that

we have.

... He does not know what the word defendant is.

So how I would sign the word defendant to him is

built up in the conversation before court starts.

Some interpreters have been legally trained do it

[sic] and some don't.

And if he didn't know what the word defendant

means as you can see on the video, he will answer

a question without knowing exactly what it is.

So if he responded I've never seen him before did

he know he was talking about the defendant or the

victim ...[?]

The eyewitness's deafness, combined with his apparent

nervous or otherwise excited answers to questions, did

indeed present special challenges to the jurors in

weighing that witness's testimony. But even when a

witness's identification of the defendant is less than

100% solid, the question remains one for the jury. See

People v Abernathy, 39 Mich Add 5, 7; 197 NW2d 106

(1972). and People v Smith. 15 Mich Add 505. 507: 166

NW2d 610 (1969).

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Page 5 of 8

People v. Morgan

In this case, in addition to the eyewitness's seemingly

equivocal identification at trial, the jury had for its

consideration the evidence of that witness's emphatic

selection of defendant's image each time a six-image

photographic array was shown to him. Also in evidence

was defendant's own account of being at the subject

Citgo station [*14] near the time of the shooting. Also,

even if not conclusive by itself, good circumstantial

evidence linking defendant to the crime was that the

shooter, as described by the eyewitness, was wearing

black pants and red shoes similar to what defendant

was wearing while admittedly at the Citgo.

Further, defendant described going from the Citgo to his

cousin's home, changing clothes, then spending only a

token amount of time at a casino. The prosecution's

theory that defendant took those actions to create

evidence suggesting an alibi was bolstered by the

evidence of a second attempt to manufacture an alibi

not consistent with defendant's own. In particular,

defendant's cousin included specific times of day with

her statements to the police about defendant's having

spent time at her house on the night in question, but the

times did not comport with defendant's account of briefly

visiting a casino, or with the surveillance footage

showing defendant at both the Citgo and the casino,

and the cousin admitted offering her statement to the

police in the first instance in hopes of providing

defendant with an alibi. The evidence further indicated

that

defendant's

mother,

in

a

telephone

conversation [*15] with defendant after he was

arrested, admonished him to not to speak of his visit to

the casino, as if recommending the cousin's

manufactured alibi over defendant's own.

For these reasons, we reject appellate counsel's

challenge to the sufficiency of the evidence to support

the verdict at trial.

Our rejection of the sufficiency claim predicated on the

prosecution's asserted failure to establish defendant's

identity as the shooter obviates our need to consider

appellate counsel's related arguments that defendant's

trial attorney was ineffective for not having moved the

trial court to quash the bindover or grant a directed

verdict of acquittal. We note that there is no

preservation requirement for appellate review of a

challenge to the sufficiency of the evidence to support a

verdict in a criminal case. See People v Patterson. 428

Mich 502, 514; 410 NW2d 733 (1987). Accordingly, the

lack of any such motion below left defendant at no

disadvantage in asking for this Court's review de novo of

that legal question on appeal. Moreover, an appellate

court's decision de novo on a sufficiency challenge

renders moot whether such a challenge would have

succeeded if urged as ground for a directed verdict at

trial. Finally, we point out that even when a

magistrate [*16] has erroneously concluded that

sufficient evidence was presented at the preliminary

examination to support a bindover, such error is

rendered harmless by conviction at trial on the basis of

sufficient evidence. People v Meadows. 175 Mich Add

355. 359: 437 NW2d 405 (1989).

III. DEFENDANT'S STANDARD 4 BRIEF

Defendant, in his Standard 4 brief, argues that he was

denied a fair trial by the introduction of evidence of his

participation in a rap group sharing the name of the

gang that asserted control over the area where the

homicide took place, by the empaneling of an allegedly

biased juror, and by the victim's cousin's testimony that

defendant told him that the victim's family had formed

the opinion that defendant had committed the homicide.

Defendant additionally asserts that defense counsel was

ineffective for not having raised objections in connection

with the challenged juror or the testimony concerning

the victim's family's suspicions.

A. RAP GROUP

Defendant argues that the trial court erred by overruling

objections to the evidence linking him to a rap group

with the same name as the gang that asserted control

over the area in question, on the grounds that it was

both irrelevant, see MRE 401. and unfairly prejudicial,

see MRE 403. Defendant additionally argues [*17] for

the first time on appeal that the prosecution's use of that

evidence violated his constitutional rights of association

and expression.3

This Court reviews a trial court's evidentiary decisions

for an abuse of discretion. People v Martzke, 251 Mich

Add 282. 286: 651 NW2d 490 (2002). "A trial court

abuses its discretion when its decision falls outside the

range of reasonable and principled outcomes." People v

Waterstone. 296 Mich Add 121. 131-132: 818 NW2d

432 (2012). This Court reviews constitutional questions

de novo. People v Conat, 238 Mich Add 134, 144; 605

NW2d 49 (1999). However, because defendant's

constitutional issues were not raised below, our review

is for plain error affecting substantial rights. See People

v Miller. 482 Mich 540. 559: 759 NW2d 850 (2008).

3 US Const. Am I: Const 1963. art 1. $ 3 (assembly) and §_5

(expression).

WP

Page 6 of 8

People v. Morgan

citing People v Cannes, 460 Mich 750, 763-764; 597

NW2d 130 (1999).

A police detective assigned to a unit combating Detroit's

street gangs testified that the area of Chalmers and

Houston Whittier, including the Citgo station where the

subject homicide took place, was menaced by a gang

known as "Chedda Ave," which trafficked in narcotics in,

and asserted control over, the area.

The police officer in charge of the investigation identified

records from an internet social networking site under the

name "Chedda Ave Meech," explaining that this was

defendant's account name. The officer additionally

identified a post from that account that was made on

September 19, 2015, and that stated, "I heard the police

look for me [*18] because I got the hood hot[.]" The

officer also identified images of defendant at the

apartments next to the Citgo station. The officer further

testified that her investigation included scouting a

popular video-sharing site for features involving

defendant, and she identified an exhibit as "a video for

Chedda Ave called everybody wanna be a boss[.j" It

depicted defendant and other "Chedda Ave people . . .

actually on top of the [Citgo] gas station" in the area in

question. The officer explained that she resorted to such

internet sleuthing because "with social media people

tend to kind of be open about information and they also

tend to post pictures and it is just another valuable tool

to help with the investigation."

Defendant admitted that he was present at the Citgo

station on the night in question and that he sometimes

answered to the nickname "Meech." He also admitted

his participation in a group of some sort called "the

Chedda Ave"4 and admitted being the singer of a rap

song whose lyrics included a reference to "another body

up at the Citgo[.]"

Defendant argues that the evidence concerning the

activities of the Chedda Ave gang was not relevant

because there was no evidence that [*19] the subject

homicide was gang-related. We disagree, given the

prosecution's theory that defendant was affiliated in

some manner with a gang that regarded the Citgo

station as part of its territory upon which the victim had

intruded, and that intrusion on gang turf, in the absence

of any evidence of personal animosity, was the motive

for the point-blank shooting of a young man who was

only standing and smoking while apparently waiting for

a ride and who showed no apprehension when his

eventual killer approached him.

Defendant points out that rap music by its nature

"reflects and glorifies violent street life and inner-city

culture," and he argues that his participation in rap

performances no more implicate him in the subject

homicide than do "the movies of Sylvester Stallone or

Bruce Lee" implicate those performers in violent crime.

This comparison is inapt, however. The evidence

showing defendant's involvement with a group bearing

the name of the gang identified as the one asserting

control over the area in question, including his singing a

lyric about "another body up at the Citgo," was offered

not to suggest generally that defendant was a gang

member and thus an indiscriminately violent £*20]

person, but rather to show specifically that defendant at

least identified with that gang. This, in turn, gave rise to

the inference that defendant was at least in harmony

with that gang's territorial sensitivities or proclivities.

Further, as the prosecutor suggested at trial, the

evidence also explained why the arresting officer, and

also the head of the investigation, respectively, came to

regard defendant as a person of interest.

For these reasons, the trial court's decision to allow the

challenged evidence did not fall outside of the range of

reasonable and principled outcomes. See Waterstone,

295 Mich Add at 131-132.

In addition, we find no plain error in connection with

defendant's unpreserved constitutional arguments about

how use of the evidence of his affiliation with "the

Chedda Ave" allegedly violated his expressive and

associational rights. Defendant argues that making

prosecutorial capital out of his membership in a rap

group violated his associational rights and that making

such capital out of a lyric that he sang violated his

expression rights. Defendant relies on Dawson v

Delaware. 503 U.S. 159. 168: 112 S Ct 1093: 117 L Ed

2d 309 (1992). in which the United States Supreme

Court held that a defendant's First Amendment rights

were violated by the introduction of evidence at a

sentencing hearing [*21] that the defendant was a

member of a prison gang, when that evidence proved

nothing more than the defendant's "abstract beliefs,"

which had "no bearing on the issue being tried." But the

Court first advised that "the Constitution does not erect

a perse barrier to the admission of evidence concerning

one's beliefs and associations . . . simply because those

beliefs and associations are protected by the First

Amendment." Id. at 165.

Defendant likens his case to Dawson on the ground that

4 From context, this appears to be a rap-music group.

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Page 7 of 8

People v. Morgan

the evidence of his involvement in a rap group engaging

in First Amendment activity "proved nothing more than

Defendant's innocent association with

others."

Defendant further argues that "the lyric 'another body up

at the Citgo' was an irrelevant statement of 'machismo'

typical of rap songs." However, evidence of membership

in a rap group which adopted the name of the gang

asserting control over the area at issue and whose

expressive activities included publicly celebrating

dominion over the Citgo station at issue showed at least

a strong personal and regional affinity with that gang,

and thus had direct bearing on the prosecution's theory

that the subject murder was committed as an assertion

of

territorial

dominance.

Defendant

had

a

constitutional [*22] right to indulge in an artistic

celebration of violent inner-city culture, or otherwise to

display a personal affinity with a gang, but not to keep a

jury from learning of such things when they bore on the

prosecution's theory of the case. No plain error is

apparent.

B. ALLEGEDLY BIASED JUROR

Defendant argues that he was denied an impartial jury

when a prospective juror stated that he had been victim

of an armed robbery, then was seated and sworn

without further inquiry into the matter. Because there

was no objection below, our review is for plain error

affecting substantial rights. Miller. 482 Mich at 559;

Cannes, 460 Mich at 763-764.

"[A] criminal defendant has a constitutional right to be

tried by an impartial jury . . . ." Miller. 482 Mich at 547.

However, "jurors are presumed to be . . . impartial, until

the contrary is shown," and the defendant bears the

burden of establishing that a juror "was not impartial or

at least that the juror's impartiality is in reasonable

doubt." Id. at 550 (quotation marks and citations

omitted).

Defendant bases this appellate claim on the following

exchange that took place in response to the trial court's

inquiry regarding whether any of the prospective jurors

had been victims of a crime:

JUROR NO. 12: Robbed at knife point as a

paper [*23] boy long a long time ago.

THE COURT: You got robbed at knife point?

JUROR NO. 12: Yes.

THE COURT: So did I when I was a paper boy.

JUROR NO. 12: Free [Pjress.

THE COURT: That's a coincidence.

Later, when the court asked the prospective jurors about

having friends or relatives who were law-enforcement

officers, Juror 12 advised that he was friends with the

Wayne County Prosecutor and also with a district judge.

Asked if those relationships would influence him, Juror

No. 12 answered, "I can be fair."

Defendant protests that "[n]o one ever returned to ask

Juror 12 if he could set aside the fact that he had been

robbed at knife point," and objects that Juror No. 12

"was not excused from the panel and went on to serve

on the jury." Defendant asserts that what Juror No. 12

revealed about being robbed as a newspaper carrier

placed his impartiality in reasonable doubt, resulting in

plain error because he "never said he could set aside

the fact that he had been robbed at knife point." We are

not persuaded by defendant's argument.

The instant case concerned a person murdered by

being shot at close range. In contrast, Juror No. 12

described being robbed, i.e., threatened. Juror No. 12

gave no hint that [*24] this crime that took place "a long

time ago" left him severely traumatized such that he

could not be impartial in deciding a criminal case. The

court, in effect, signaled that it detected no lingering

problems for that juror by asking no follow-up questions

and conversationally volunteering that the court had

suffered the same crime as a youth. The juror confirmed

the court's impression by offering no further details

about the incident other than the benign one that the

newspaper for which he was delivering papers was The

Detroit Free Press. Defendant cites no authority that

stands for the proposition that a distant history as the

victim of a robbery per se rebuts the presumption of

juror impartiality. We find no plain error.

Further, defense counsel actively participated in jury

selection, including by exercising multiple peremptory

challenges. Contrary to defendant's argument, there is

simply no basis from which to conclude that counsel

was ineffective by failing to further question the juror,

especially when the juror explicitly stated (albeit in the

context of discussing his friends in the legal system) that

he could be a fair juror.

C. VICTIM'S COUSIN'S STATEMENT

Defendant argues [*25] that he was denied a fair trial

when the victim's cousin testified that defendant had told

him that the victim's family thought defendant was the

shooter, asserting that this was inadmissible hearsay,

the introduction of which violated his right to confront

adverse witnesses. Defendant admits that the

i&K:

ISESS5

Page 8 of 8

People v. Morgan

challenged testimony drew no objection below, leaving

appellate objections unpreserved. Our review is thus for

plain error affecting substantial rights. See Miller. 482

Mich at 559: Cannes, 460 Mich at 763-764.

Defendant takes issue with the victim's cousin's

testimony that, a few days after the cousin saw

defendant at a candlelight vigil for the victim at the home

of the victim's grandmother, defendant telephoned him

and said "[h]e heard my family was saying that he did it

and stuff like that." The witness then answered "I guess"

when asked if defendant had simply wanted to let him

"know that."

Hearsay, meaning testimony about a person's unsworn,

out-of-court assertions offered to prove the truth of the

matter asserted, MRE 801(c). is generally inadmissible,

MRE 802. subject to several exemptions and exceptions

as provided by the rules of evidence. Defendant

characterizes the challenged testimony as "not

Defendant's

statement,"

but

rather

as

"the

[victim's] [*26] family's statement that Defendant was

the shooter." Even accepting defendant's debatable

argument that the cousin's testimony was offered to

prove that defendant "did it" (as opposed to being

offered to prove what defendant knew about rumors

surrounding the murder), any error did not rise to a level

requiring reversal under the plain-error standard. This

general information about "my family . . . saying that he

did it," without any specifics to back it up and in light of

the inculpatory evidence presented at trial, did not rise

to the level of affecting the outcome of the trial. Cannes,

460 Mich at 763.5

In connection with this issue, defendant argues that his

trial attorney was ineffective for failing to object to the

testimony, but defendant has not demonstrated that an

objection would have affected the outcome of the trial.

Messenger, 221 Mich Add at 181.

Affirmed.

Is/ Christopher M. Murray

Is/ Patrick M. Meter

is/ Elizabeth L. Gleicher

5 We also note that the alleged and vague "statement" by the

"family" was clearly not "testimonial" in that it was not the

result of an attempt to "prove past events potentially relevant

to later criminal prosecution." Davis v Washington, 547 U.S.

813, 814:126 S Ct 2266: 165 L Ed 2d 224 (2006).

End of Document

APPENDIX B

Decision of the Michigan Supreme Court

*

o

Neutral

As of: August 20, 2019 10:54 PM Z

People v. Morgan

Supreme Court of Michigan

July 2, 2019, Decided

SC: 158982

Reporter

2019 Mich. LEXIS 1182 *; 929 N.W.2d 341

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DEMETRIUS DESEAN MORGAN, DefendantAppellant.

Prior History: [*1] COA: 335855. Wayne CC: 15-008349-FC.

People v. Morgan, 2018 Mich. Add. LEXIS 3577 (Mich. Ct. Add., Nov. 29, 2018)

Judges: Bridget M. McCormack, Chief Justice. David F. Viviano, Chief Justice Pro Tern, Stephen J. Markman,

Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Justices.

Opinion

Order

On order of thp Court, the motion to file a supplement is GRANTED. The application for leave to appeal the

November 29, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not

persuaded that the questions presented should be reviewed by this Court.

End of Document