People of Michigan v. Dwayne Anthony Dupree ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 21, 2019
Plaintiff-Appellee,
v No. 339627
Wayne Circuit Court
DWAYNE ANTHONY DUPREE, LC No. 16-008974-02-FC
Defendant-Appellant.
Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317, conspiracy
to commit first-degree murder, MCL 750.157a, MCL 750.316, interference in a criminal case,
MCL 750.122, felon in possession of a firearm, MCL 750.227f, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant as a fourth habitual offender, MCL 769.12, to serve concurrent prison terms of 50 to
75 years for the second-degree murder conviction, life without parole for the conspiracy to
commit first-degree murder conviction, 10 to 25 years for the interference in a criminal case
conviction, and 5 to 20 years for the felon in possession of a firearm conviction, and a
consecutive sentence of two years for the felony-firearm conviction. Defendant appeals as of
right, and we affirm.
In 2010, David Matlock shot Darryl Waller, who survived. Matlock hid from law
enforcement until he was arrested in December 2014. He was arrested with Michael Alexander
(his nephew) and Calvin Watson after the police stopped Watson’s vehicle. The police
discovered Matlock’s outstanding warrant for having previously shot Waller, and Matlock was
fearful that he could be incarcerated for life. While in custody, Matlock convinced Alexander
and Watson to kill Waller upon their imminent release. Watson got defendant to drive a vehicle.
Defendant, Watson, and Alexander formulated a plan to lure Waller from his home and shoot
him. After a trial run, Watson dropped out. Defendant, Alexander, and another man killed the
57-year-old Waller at his home. Matlock and Watson testified against defendant, although
Watson, who had already been sentenced pursuant to his plea bargain, changed his story at trial
in an apparent attempt to exonerate defendant.
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On appeal, defendant argues that his trial counsel provided ineffective assistance in
several respects, that the evidence was insufficient to support his convictions—which were also
against the great weight of the evidence, and that the trial court erred in issuing the judgment of
sentence. We disagree.
I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
An evidentiary hearing was held on the question of ineffective assistance of counsel,
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973); thus, this issue is preserved. See
People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009). The trial court’s factual
findings are reviewed for clear error. People v Brown, 205 Mich. App. 503, 504-505; 517 NW2d
806 (1994). Clear error occurs where the Court reviews the entire record and “is left with a
definite and firm conviction that a mistake has been made.” Id. at 505. The constitutional
question of whether an attorney’s ineffective assistance deprived a defendant of his Sixth
Amendment right to counsel, US Const, Am VI, is reviewed de novo. People v Unger (On
Remand), 278 Mich. App. 210, 242; 749 NW2d 272 (2008).
A defendant’s right to the effective assistance of counsel is guaranteed by the United
States and Michigan Constitutions, US Const, Am VI; Const 1963 art 1, § 20. People v Cline,
276 Mich. App. 634, 637; 741 NW2d 563 (2007). To establish an ineffective assistance of
counsel claim, a defendant must show that counsel’s performance was deficient, i.e., fell below
an objective standard of reasonableness, and prejudiced the defense. People v Taylor, 275 Mich
App 177, 186; 737 NW2d 790 (2007); People v Jordan, 275 Mich. App. 659, 667; 739 NW2d 706
(2007). The performance will be deemed to have prejudiced the defense if it is reasonably
probable that, but for counsel’s error, “the result of the proceeding would have been different.”
Id. The “effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich. App. 702, 714; 645 NW2d 294 (2001).
Alibi witness
Defendant first argues that his trial counsel failed to investigate or present to the jury
testimony from an alibi witness, Shallena Cummings, whom defendant had suggested as a
witness. At the Ginther hearing, defendant stated that he informed his trial counsel, Michael
McCarthy, that he had been with Cummings (whom he only knew as “little momma”) at the time
of the crime, and that McCarthy responded that he should not tell anyone because of
Cummings’s age. Cummings testified that she shared a child with defendant, and that she was at
defendant’s home from 10:00 a.m. to 7:00 p.m. on the date of the crime (January 1, 2015).
However, she could not remember the location of the home. She stated that defendant’s
girlfriend was not home so she and defendant were babysitting and having sex, and that his
girlfriend did not come home before she left. Cummings also reported that during the trial she
twice phoned defendant’s trial attorney, whose name she could not recall, on his cell phone, but
she did not leave any message.
McCarthy explained that defendant sent him a letter in December 2015 stating generally
that he had alibis, and asking whether they could inform the court of the alibis without requiring
the witnesses to testify. McCarthy asserted that he responded, and that defendant never
identified his alibi witness or any alibi. Defendant acknowledged that McCarthy sent him a letter
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asking for more information about alibi witnesses. McCarthy stated that no possible alibi
witness contacted him, including Cummings, and that he would have called back had he received
a voice mail message or a message from his secretary. McCarthy opined that an alibi witness
who did not come forward until late in the proceedings would have credibility problems and that
he would be reluctant to present such a witness to the jury because the witness would not appear
to be credible. McCarthy said that he had an investigator appointed from the beginning of
November 2015 to sometime in February 2016, and that he would have utilized this investigator
to investigate any identified alibi.
Defense counsel’s duty is to prepare, investigate, and present all substantial defenses. In
re Ayres, 239 Mich. App. 8, 22; 608 NW2d 132 (1999). To overcome the presumption of sound
trial strategy, the defendant must show that the failure to prepare for trial or interview witnesses
resulted in counsel’s ignorance of valuable evidence that would have substantially benefited the
accused. People v Bass, 223 Mich. App. 241, 252-253; 581 NW2d 1 (1997). “Furthermore, the
failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense.” People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308
(2004). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009) (quotation marks and
citation omitted).
Here, had McCarthy known that Cummings would provide alibi testimony, and
McCarthy failed to investigate or present the testimony, McCarthy’s performance might have
deprived defendant of a substantial alibi defense. However, the evidence indicated that
McCarthy was informed generally that defendant might have had an alibi, and that McCarthy
sought more information from defendant. The trial court found that the performance of
defendant’s trial counsel was not deficient because defendant did not make a good-faith effort to
inform McCarthy of his intention to pursue an alibi defense. Ultimately, the evidence indicated
that McCarthy was unaware of Cummings because defendant was unable to specifically identify
her, and Cummings did not provide information to McCarthy. Thus, there is no evidence to
show that McCarthy did not adequately pursue Cummings’s possible alibi testimony.
Even if McCarthy had been aware of the specific alibi testimony, despite defendant’s
inability to identify Cummings or provide an address, Cumming’s testimony could have been
challenged. First, according to defendant, he was discouraged from pursuing her as a witness
because she was apparently younger in age, possibly creating additional criminal liability and an
adverse reaction from the jury. Also, Cummings could not state the location at which she visited
defendant and testified that they were having sex and selling marijuana while they were
babysitting defendant’s child, who was also the child of his girlfriend. This evidence could have
adversely impacted Cummings’s credibility as well as the jury’s opinion of defendant.
Cummings’s credibility would also have been questioned because she said she was alone with
defendant until 7:00 p.m., whereas defendant’s girlfriend testified that she came home around
4:00 p.m. and that only defendant and another person were present. “ ‘[D]ecisions regarding
what evidence to present and whether to call or question witnesses are presumed to be matters of
trial strategy,’ which we will not second-guess with the benefit of hindsight.” Dixon, 263 Mich
App at 398, quoting People v Rockey, 237 Mich. App. 74, 76; 601 NW2d 887 (1999). Here, there
was no record evidence that trial counsel failed to investigate Cummings, that trial counsel failed
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to make a reasoned decision not to present her as an alibi witness, or that defendant was denied a
substantial defense.
Impeaching Matlock’s credibility
Defendant asserts that his trial counsel failed to impeach Matlock. “Counsel may provide
ineffective assistance if counsel unreasonably fails to develop the defendant’s defenses by
adequately impeaching the witnesses against the defendant.” People v Lane, 308 Mich. App. 38,
68; 862 NW2d 446 (2014). Prejudice may result where trial counsel fails to introduce evidence
that would impeach a witness and corroborate defendant’s testimony. People v Trakhtenberg,
493 Mich. 38, 57; 826 NW2d 136 (2012).
Defendant argues that his trial counsel should have attacked Matlock’s testimony with
information that Watson provided at an investigative subpoena hearing. Watson had claimed
that Matlock wanted defendant dead because they were involved with the same woman, and
because Matlock thought that defendant would implicate him in the crime. At the Ginther
hearing, defendant said that Matlock had become angry with him in November 2014 because
they were seeing the same woman. McCarthy stated that his defense plan included discrediting
the witnesses, like Matlock, who had identified defendant as being involved, by exposing bias.
McCarthy said that he elicited testimony from Watson about defendant’s conflict with Matlock,
but not specifically that Matlock wanted to kill defendant, which Matlock could have denied.
McCarthy’s strategy to discredit Matlock included highlighting lies that he had told, and
exposing that it was in his self-interest to testify against defendant. The trial court found that
counsel adequately attacked Matlock’s credibility.
At trial, defendant’s trial counsel repeatedly asked Matlock about his self-interested
motivation to testify against defendant. Matlock testified that he was helping himself obtain an
agreeable sentence by implicating defendant and was avoiding possible life sentences for the
assault with intent to murder Waller in 2010 and the first-degree murder and conspiracy charges
in this case. Matlock had pleaded guilty to the 2010 assault charge and to second-degree murder
for the instant case in exchange for a minimum sentence of between 17 to 40 years and his
testimony in the instant case. On cross-examination, McCarthy elicited that Matlock had
previously lied to the police and in another court to serve his needs. Matlock also testified that
he and defendant had “a big dispute” after Matlock’s release from jail, although he could not
remember the details. Additionally, during McCarthy’s cross-examination of Watson, Watson
testified that Matlock was angry with defendant before Waller’s murder because Matlock had
discovered that defendant was involved with Matlock’s girlfriend. Watson had additionally
testified on direct that defendant and Matlock had a dispute after Matlock was released from jail
about using the assault rifle that defendant had stolen from his uncle.
Thus, McCarthy’s trial strategy to attack Matlock’s credibility did not include asking
either Matlock or Watson about Matlock’s statement about wanting to kill defendant. However,
McCarthy testified that he was not sure of the response that Matlock would provide, and that
asking Watson specifically what Matlock had said may have been calling for inadmissible
hearsay. It was reasonable trial strategy to avoid asking a question that Matlock may have
denied because he would not have wanted to provide testimony favorable to defendant. Even
without testimony about the extent of Matlock’s animosity toward defendant, the jury was
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informed of the animosity and how it could have motivated Matlock. Most importantly, much of
counsel’s cross-examination of Matlock focused on providing the jury with information about
Matlock’s credibility and motive to testify against defendant. The jury was completely aware of
the possible motives for Matlock’s testimony against defendant, and McCarthy ensured that the
jury would consider this information in making its credibility determination about Matlock.
Ballistics expert
Defendant argues that trial counsel was deficient for failing to challenge the ballistics
evidence presented by firearms and toolmark expert Detective Sergeant Dean Molnar, or to
request an expert to counter Molnar. Molnar testified that the marks on the shell casings
indicated that the shell casings collected from Waller’s home were fired from the same gun as
the shell casings found in the yard of a home in which defendant had lived. The casings
collected at defendant’s former home were collected one year before Waller’s murder, after a
nearby home had been repeatedly shot at.
Defendant first contends that the ballistics evidence should have been challenged based
on questions about the reliability of toolmark evidence. MRE 702 provides for the admission of
expert opinion that results from “scientific, technical, or other specialized knowledge,” and
assists the trier of fact. To determine whether such testimony is admissible, a searching inquiry
is mandated. The inquiry is not just of the data underlying expert testimony, but also of the
manner in which the expert interprets and extrapolates from the data. Gilbert v DaimlerChrysler
Corp, 470 Mich. 749, 782; 685 NW2d 391 (2004). The preliminary determination of the
qualification of an expert is an issue for the trial court to decide. Id. at 780. The admissibility of
expert testimony is in the trial court’s discretion. Unger, 278 Mich. App. at 216. The trial court
must consider many factors to determine “whether the reasoning or methodology underlying the
testimony is scientifically valid” and “whether that reasoning or methodology properly can be
applied to the facts in issue.” Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579, 592-593; 113 S
Ct 2786; 125 L. Ed. 2d 469 (1993). The data underlying the expert’s theories and the
methodology by which he draws his conclusions, as well as his opinion, must also be reliable.
People v Yost, 278 Mich. App. 341, 394; 749 NW2d 753 (2008), quoting Gilbert, 470 Mich. at
782.
Defendant cites a Supreme Court order denying leave to appeal in People v McAdoo, 497
Mich. 975; 859 NW2d 711 (2015), where in a concurring opinion Justice McCormack concluded
that “there are serious questions about whether [toolmark] evidence has an adequate scientific
foundation,” based on several studies regarding the accuracy of toolmark evidence used for
identity. Defendant, likewise, cites studies questioning the scientific validity of toolmark
evidence in his brief on appeal.
Regarding the ballistic evidence, McCarthy testified that his strategy was to demonstrate
that there was no evidence that defendant was involved with shooting a gun, particularly because
defendant had been evicted from the home where the shell casings were found. The trial court
concluded that defendant had not established that Detective Sergeant Molnar should not have
been qualified as an expert or that his methodology was defective. There is no authority
establishing that toolmark evidence does not meet the tests for scientific validity necessary to
assist the trier of fact as discussed in Gilbert, 470 Mich. 749, and Daubert, 509 U.S. 579. Thus, it
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is questionable whether defendant’s trial counsel could have effectively challenged the validity
of this evidence. “Failing to advance a meritless argument or raise a futile objection does not
constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793
NW2d 120 (2010).
Defendant further argues that his trial counsel should have requested funds to obtain an
expert in toolmarks to challenge Detective Sergeant Molnar’s testimony. Trial counsel’s
decision regarding whether to call an expert witness is a matter of trial strategy. Payne, 285
Mich. App. at 190. Defendant does not explain how an expert would have contradicted Detective
Sergeant Molnar’s conclusion that shell casings from two different areas were fired from the
same gun, other than to attack the validity of toolmark identifications generally. Again,
McCarthy’s strategy was to demonstrate that Alexander was the person who shot Waller, and
that there was no evidence that defendant was involved with shooting a gun. The trial court
concluded that defendant had not established that an alternative expert would have testified in his
favor, or that challenging Molnar’s testimony would have made a difference in the outcome of
the trial, and denied defendant’s motion for funds to retain a firearms expert.
Trial counsel presented evidence that defendant had been evicted, around December
2015, from the home where the casings were found. Defendant has not demonstrated that his
trial counsel’s strategy to rely on the lack of evidence that defendant used a gun was improper.
Additionally, to establish an ineffective assistance claim, it must be demonstrated that it is
reasonably probable that, but for counsel’s error, “the result of the proceeding would have been
different.” Jordan, 275 Mich. App. at 667. Excluding or challenging Molnar’s testimony could
not have exonerated defendant.
II. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE
Defendant argues that the verdict was against the great weight of the evidence, an issue
he did not preserve, and that the evidence was insufficient to convict him. This Court reviews
unpreserved issues involving the great weight of the evidence for plain error affecting the
defendant’s substantial rights. People v Musser, 259 Mich. App. 215, 218-219; 673 NW2d 800
(2003), citing People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999). Reversal is
warranted only if the plain error resulted in the conviction of an innocent defendant or if “the
error seriously affected the fairness, integrity, or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763. This Court reviews de novo a challenge
to the sufficiency of the evidence. Ericksen, 288 Mich. App. at 195.
Due process, US Const, Am XIV, requires that evidence of every element of a crime be
proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton,
407 Mich. 354, 366; 285 NW2d 284 (1979), citing In re Winship, 397 U.S. 358, 364; 90 S. Ct.
1068; 25 L. Ed. 2d 368 (1970). To determine if the prosecutor produced evidence sufficient to
support a conviction, this Court considers “the evidence in the light most favorable to the
prosecutor” to ascertain “whether a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.” People v Tennyson, 487 Mich. 730, 735; 790 NW2d 354 (2010), quoting
People v Hardiman, 466 Mich. 417, 429; 646 NW2d 158 (2002). Direct and circumstantial
evidence, as well as all reasonable inferences that may be drawn, are considered to determine
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whether the evidence was sufficient to sustain the defendant’s conviction. Id. In reviewing the
sufficiency of the evidence, this Court “is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.” People v Gonzalez, 468 Mich. 636, 640-641;
664 NW2d 159 (2003), quoting People v Nowack, 462 Mich. 392, 399-400; 614 NW2d 78
(2000).
Defendant contends that the evidence was insufficient to convict him of aiding and
abetting second-degree murder, and conspiracy to commit first-degree murder. Defendant’s
central argument is that he was not identified as being present at the scene of the shooting.
“[I]dentity is an element of every offense.” Yost, 278 Mich. App. at 356.
However, defendant’s identity in planning and executing Waller’s murder was
established beyond a reasonable doubt by the testimonies of defendant’s friend, Kierra Hobbs, as
well as Matlock and Watson. The reason for killing Waller was that Matlock had shot him in
2010 and Waller could have implicated Matlock in that shooting. Matlock and Watson testified
about how Matlock had repeatedly asked Alexander and Watson to “take care of,” or kill Waller;
Matlock could not do so because he was being held on a warrant for the 2010 shooting.
Alexander and Watson agreed to help Matlock by killing Waller. Defendant told Hobbs that he
was asked to kill someone after she heard him discuss the issue on the phone. Hobbs then
witnessed defendant planning with Alexander and Shawn Pearson to lure someone from their
home in order to kill them by promising to pay rent. Watson’s former testimony was similar to
Hobbs’s testimony that defendant had planned the murder with him at defendant’s home, and
then distributed the weapons. Officer LeDawn Russell, the next-door neighbor, noted that
Waller was a landlord.
Hobbs also witnessed defendant leave in his brown Buick with two other men and guns
on the day that Waller was murdered. Witnesses saw a gold or light-brown car initiate contact
with Waller in his driveway, and Waller was murdered consistent with the plan that defendant
put forth with his associates in front of Hobbs. Defendant celebrated news reports of Waller’s
killing, boasted to Hobbs about the killing, and showed her blood from the killing in his brown
Buick. Defendant’s girlfriend, Anarika Dafney, testified that defendant had access to a tan or
gold Buick at the time, and defendant had been stopped by police while driving a gold or tan
sedan Buick three times, on November 4, 2014, November 25, 2014, and January 28, 2015.
Dafney and a neighbor testified that Dafney sold a gold Buick to the neighbor for $200 near the
time that defendant was incarcerated for this crime.
At a January 5, 2015 gathering, Alexander was heard describing being in a gold Buick
when he participated in killing Waller in a way that was consistent with defendant’s plan as
reported by Hobbs. According to Matlock, at the gathering, defendant boasted of participating in
Waller’s killing, including how he lured Waller to the shooting. Watson’s recanted testimony
was consistent with other testimony establishing that defendant was the driver, and that Matlock
thanked him at the gathering.
Defendant argues that the testimony of Matlock and Hobbs was not credible because of
the favorable plea deals they made in exchange for their testimony, as well as Hobbs’ use of
drugs. However, the jury heard all of this evidence and was tasked with determining the
credibility of the witnesses. An appellate court “does not interfere” with the fact-finder’s
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“assessment of the weight and credibility of witnesses or the evidence[.]” People v Dunigan,
299 Mich. App. 579, 582; 831 NW2d 243 (2013). The trier of fact determines “what inferences
may be fairly drawn from the evidence” and “the weight to be accorded those inferences.”
People v Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014), quoting Hardiman, 466 Mich.
at 428. “[A] reviewing court is required to draw all reasonable inferences and make credibility
choices in support of the jury verdict.” Gonzalez, 468 Mich. at 640-641, quoting Nowack, 462
Mich. at 399-400. Based on these credibility determinations and the evidence, a rational juror
could have found beyond a reasonable doubt that defendant planned and participated in Waller’s
murder.
Defendant further argues that the evidence of conspiracy to commit first-degree murder
was insufficient because the jury found that he was guilty of second-degree murder, which did
not involve the premeditation element required for first-degree murder. See People v Bennett,
290 Mich. App. 465, 472; 802 NW2d 627 (2010). Defendant argues that, if the second-degree
murder of Waller was unplanned, then defendant could not be guilty of having planned it. It is
possible that the jury found that defendant agreed with at least Alexander to accomplish the
premeditated killing of Waller by luring him out to the car, but that the jury concluded defendant
was an accomplice to Alexander and one other person’s intentional killing of Waller that was
done without premeditation, but with malice, when the assailants chased Waller into his home.
Nonetheless, the evidence was sufficient to demonstrate that defendant agreed to participate in
the premeditated killing of Waller, and that he did participate in Waller’s murder by driving the
car and attempting to lure him outside. Notably, while independently considering two separate
offenses, a jury in a criminal case may reach different conclusions concerning the identical
element contained in both offenses. People v Goss, 446 Mich. 587, 597; 521 NW2d 312 (1994).
A jury may reach inconsistent verdicts as a result of mistake, compromise, or leniency. Id. at
597-598. The jury can choose, without any apparent logical basis, what to believe and what to
disbelieve because the jury is the sole judge of all the facts. People v Vaughn, 409 Mich. 463,
466; 295 NW2d 354 (1980). The verdicts are not inconsistent where there is an interpretation of
the evidence that provides a logical explanation for the findings of the jury. People v Tombs,
472 Mich. 446, 462-463; 697 NW2d 494 (2005).
Regarding the great weight of the evidence, a trial court should grant a new trial based on
the weight of the evidence only where the evidence preponderates heavily against the verdict so
that it is a serious miscarriage of justice to allow the verdict to stand. People v Gadomski, 232
Mich. App. 24, 28; 592 NW2d 75 (1998), citing People v Lemmon, 456 Mich. 625, 627; 576
NW2d 129 (1998). A trial court may order a new trial in the “interest of justice” or to prevent a
“miscarriage of justice.” Id. at 634-635. A trial court may vacate a verdict only when it does not
find reasonable support in the evidence, and the verdict was “more likely the result of causes
outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.”
People v Lacalamita, 286 Mich. App. 467, 469; 780 NW2d 311 (2009).
Defendant noted the lack of physical evidence and eyewitness testimony of defendant’s
involvement, even though both Officer Russell, from next door, and Lawrence Harris witnessed
the gold Buick in Waller’s driveway. Both described the driver, distinctly, and did not identify
defendant. However, it was not discussed how clearly the witnesses saw the driver of the vehicle
from inside their homes, particularly considering that they had to quickly seek safety from the
gunshots. Importantly, neither witness stated that defendant did not appear to be the driver of the
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vehicle, in contrast to the testimonial evidence identifying defendant as the driver of the vehicle.
Further, there was no physical evidence to contradict the testimonial evidence that defendant was
involved in the planning and execution of Waller’s death.
Defendant notes that there were other vehicles similar to the one used in the murder in the
area because the police had impounded a vehicle reported by Officer Russell and found that it
was not the vehicle used in the crime. However, a tan or gold Buick was used in the crime, and
defendant had access to and was cited while driving the same type of vehicle in the months
preceding and following the crime. That the police did not recover the vehicle does not
contradict the fact that defendant drove the vehicle as a part of the crime.
Defendant also argues that the ballistics evidence, indicating that the shell casings at the
murder scene were fired from the same gun as the shell casings found in the backyard of
defendant’s former home, do not provide a link between defendant and the murder. Because it
was not demonstrated, or alleged, that defendant fired the weapon at either location, it is true that
this evidence could not demonstrate that defendant shot Waller. The jury was empowered to
weigh the evidentiary value that the gun used to kill Waller had also been fired on defendant’s
property. Notably, this evidence does not exclude the possibility that defendant participated in
planning and executing the murder.
Finally, defendant argues that the credibility issues of Matlock, Hobbs, and Watson
should have prevented the jury from determining that defendant was guilty. Matlock and Hobbs
testified pursuant to plea deals in order to achieve more favorable sentences, and defendant’s
trial counsel elicited testimony that Hobbs had abused drugs and that Matlock had
opportunistically lied. Defendant asserts that Watson’s previous testimony could not be trusted
because he recanted, and notes that the prosecutor did not charge another individual whom
Watson had implicated. However, the jury heard the entirety of the testimony and was
responsible for making credibility determinations. “In general, conflicting testimony or a
question as to the credibility of a witness are not sufficient grounds for granting a new trial.”
Lemmon, 456 Mich. at 643. Unless there are “exceptional circumstances,” the jury determines
the credibility of witnesses and the reviewing court may not substitute its view on credibility, an
issue that the constitution guarantees is in the province of the jury. Id. at 642. Even where the
“testimony is in direct conflict and testimony supporting the verdict has been impeached,”
because the jury determined credibility, “it cannot be said as a matter of law that the testimony
thus impeached was deprived of all probative value or that the jury could not believe it.” Id. at
643. “Conflicting testimony, even when impeached to some extent, is an insufficient ground for
granting a new trial.” Lacalamita, 286 Mich. App. at 469-470, quoting Lemmon, 456 Mich. at
647. Thus, the verdict was not against the great weight of the evidence and defendant has not
demonstrated plain error.
III. JUDGMENT OF SENTENCE
Defendant next argues that the trial court erred by imposing a life without parole
sentence. We disagree.
The trial court sentenced defendant for conspiracy to commit first-degree murder by
stating, “[P]ursuant to the statute I’m going to sentence you to life with the possibility of parole.”
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However, the judgment of sentence provides that defendant was sentenced to life without the
possibility of parole for this conviction. The conspiracy statute, MCL 750.157a(a), provides, in
relevant part:
[I]f commission of the offense prohibited by law is punishable by imprisonment
for 1 year or more, the person convicted under this section shall be punished by a
penalty equal to that which could be imposed if he had been convicted of
committing the crime he conspired to commit.
Thus, the trial court was required to sentence defendant to the sentence prescribed by the first-
degree murder statute. MCL 750.316 provides that a defendant who commits a premeditated
killing “is guilty of first degree murder and shall be punished by imprisonment for life without
eligibility for parole.” Thus, the trial court was required to sentence defendant to life without the
possibility of parole, and the judgment of sentence is legally correct.
Defendant cites People v Jahner, 433 Mich. 490, 504; 446 NW2d 151 (1989), where the
Court analyzed the conspiracy, first-degree murder, and “lifer” statues,1 and concluded that “a
person sentenced to life imprisonment for conspiracy to commit first-degree murder is eligible
for parole consideration[.]” However, the first-degree murder statute, MCL 750.316, was
amended in 2014 and now includes the requirement that those convicted of first-degree murder
“shall be punished by imprisonment for life without eligibility for parole.” Thus, Jahner did not
consider a first-degree murder statute that included the life without parole language. Where a
judgment of sentence does not include a statutorily mandated punishment, the sentence is
invalid. People v Comer, 500 Mich. 278, 292; 901 NW2d 553 (2017). Had the trial court
sentenced defendant to life with the possibility of parole, the sentence would have been invalid
and subject to correction pursuant to the previous version of MCR 6.429. Thus, the trial court
did not plainly err by issuing the judgment of sentence.
Affirmed.
/s/ Thomas C. Cameron
/s/ Mark J. Cavanagh
/s/ Douglas B. Shapiro
1
As stated in Jahner, 433 Mich. at 506, MCL 791.234(4) provided, in relevant part that “[a]
prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for
murder in the first degree and prisoners sentenced for life or for a minimum term of
imprisonment for a major controlled substance offense, who has served 10 calendar years of the
sentence is subject to the jurisdiction of the parole board and may be released on parole by the
parole board . . . .”
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