People of Michigan v. Terriance Nigel-Ray Davis ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 15, 2021
Plaintiff-Appellee,
v No. 348922
Wayne Circuit Court
TERRIANCE NIGEL-RAY DAVIS, LC No. 18-004065-01-FC
Defendant-Appellant.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for second-degree murder,
MCL 750.317, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and
possession of a firearm during the commission of a felony, second offense, (felony-firearm),
MCL 750.227b. We affirm.
I. BACKGROUND
Defendant’s convictions arise out of the shooting death of Freddie Goss, Jr., on April 7,
2018. Four people testified at trial that defendant shot Goss: Takela Hooten (Goss’s girlfriend),
Raynard Cann (Hooten’s brother), Roshard Murray (Cann’s friend), and another witness.
Although each of these four witnesses made previous statements that were inconsistent with their
trial testimony, the jury convicted defendant.
On appeal, defendant argues the trial court erred by permitting the prosecution to introduce
Cann’s and Murray’s testimony under MRE 404(b), as well as testimony that defendant followed
them in a vehicle several days after the shooting to intimidate them. Specifically, defendant argues
the evidence was not admissible to show defendant’s consciousness of guilt because Cann and
Murray did not see defendant in the vehicle following them. He further argues that the prosecution
could not admit the evidence to bolster Cann’s and Murray’s credibility. Finally, defendant argues
that any probative value of the evidence was outweighed by its prejudicial effect because the
evidence portrayed him as an intimidating person attempting to interfere with the witnesses. We
disagree.
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II. ANALYSIS
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Thorpe, 504 Mich 230, 251; 934 NW2d 693 (2019). A trial court abuses its discretion when it
“chooses an outcome that falls outside the range of principled outcomes.” People v Douglas, 496
Mich 557, 565; 852 NW2d 587 (2014) (quotation marks and citation omitted).
Generally, all relevant evidence is admissible. MRE 402. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401.
MRE 404(b) creates an exception to the general rule by prohibiting the introduction of “[e]vidence
of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in
conformity therewith.” MRE 404(b)(1). In other words, “evidence of other crimes, wrongs, or
acts is inadmissible to prove a propensity to commit such acts.” People v Denson, 500 Mich 385,
397; 902 NW2d 306 (2017). However, MRE 404(b) does not prohibit the admission of other-acts
evidence that is admitted for some other, nonpropensity purpose, “such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident.” MRE 404(b)(1). Our Supreme Court provided the following
framework for assessing the admissibility of evidence under MRE 404(b):
First, that the evidence be offered for a proper purpose under Rule 404(b); second,
that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
probative value of the evidence is not substantially outweighed by unfair prejudice;
fourth, that the trial court may, upon request, provide a limiting instruction to the
jury. [People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended
445 Mich 1205 (1994).]
Cann and Murray both testified that, after they witnessed the shooting, they noticed an
SUV that appeared to follow them while they walked down the street together. Although neither
actually saw defendant in the vehicle, they both believed that the defendant was the driver. Cann
testified the SUV was a beige Yukon or other similarly large SUV, and he associated it with
defendant because he saw the vehicle outside Hooten’s home on the night of the shooting and he
saw it at a party he attended where he first met defendant. Murray testified that the SUV was a
champagne-colored Tahoe, and he associated it with defendant because he saw it in front of
Hooten’s home the day after the shooting. Officer Douglas testified that the vehicle defendant was
arrested in was a tan, 2002 Chevrolet Suburban.
Before trial, the prosecution provided defendant notice of its intent to introduce and admit
the evidence under MRE 404(b). The trial court granted the motion and concluded that the
evidence was admissible under MRE 404(b) to show defendant’s consciousness of guilt. The court
also concluded that the probative value of the evidence was not substantially outweighed by its
prejudicial effect. The court did not address whether the evidence was admissible to bolster the
credibility of Cann and Murray, despite the prosecution arguing it was also admissible for that
purpose.
As an initial matter, the parties and trial court missed an important preliminary issue: this
evidence is not other-acts evidence at all. Under MRE 404(b)(1), “[e]vidence of other crimes,
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wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” “Thus, by its plain terms, MRE 404(b) only applies to evidence of crimes,
wrongs, or acts ‘other’ than the ‘conduct at issue in the case’ that risks an impermissible character-
to-conduct inference.” People v Jackson, 498 Mich 246, 262; 869 NW2d 253 (2015) (emphasis
added). “Correspondingly, acts comprised by or directly evidencing the ‘conduct at issue’ are not
subject to scrutiny under MRE 404(b).” Id. In this case, the prosecution did not rely on a
character-to-conduct inference to gain probative value from this evidence. Instead, it sought to
use defendant’s conduct of following Cann and Murray to enable the jury to infer that defendant
was attempting to intimidate two eyewitnesses and, therefore, committed the charged offenses.
That defendant’s intimidating conduct also presented the possibility of the jury concluding he had
an intimidating character trait does not change this analysis. The key is that the prosecution was
not using defendant’s potential character trait to imply defendant acted in conformity with that
character trait. See VanderVliet, 444 Mich at 62-64 (explaining the type of inferences MRE 404(b)
was implemented to prevent). Indeed, the prosecution did not need to use such an inference
because Cann and Murray testified that they believed defendant was following them after they
witnessed the shooting. Therefore, MRE 404(b) was not applicable to this evidence, and the
ordinary rules of admissibility under MRE 401 and MRE 402, subject to exclusion under
MRE 403, should have been applied by the trial court.
Applying the appropriate rules, this evidence was properly admitted. Clearly, defendant
following two eyewitnesses days after the charged conduct occurred could permit the jury to infer
that defendant was attempting to intimidate the witnesses and, as such, suggests consciousness of
guilt. Consciousness of guilt, in turn, tends to make it more probable that defendant committed
the charged offenses than if the evidence were not presented. MRE 401. However, because Cann
and Murray did not see defendant in the vehicle following them, this evidence was only relevant
if sufficient evidence was admitted upon which the jury could conclude that defendant was in the
vehicle. See MRE 104(b) (“When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient
to support a finding of the fulfillment of the condition.”) Cann’s testimony that he saw the vehicle
outside Hooten’s home on the night of the shooting and at a party where he first met defendant, as
well as the similarity of the vehicle’s description provided by Cann and Murray to Officer
Douglas’s description of defendant’s vehicle, satisfy this requirement because it could support a
finding that defendant was the driver. Thus, the evidence was relevant under MRE 401 and,
therefore, admissible under MRE 402.
Further, the evidence had little, if any, unfair prejudicial effect on defendant. “[E]vidence
is unfairly prejudicial when there exists a danger that marginally probative evidence will be given
undue or preemptive weight by the jury.” People v Musser, 494 Mich 337, 357; 835 NW2d 319
(2013) (quotation marks and citation omitted). If the jury did not believe defendant was the driver
of the vehicle, it would have excluded consideration of the evidence altogether and, thus, had no
prejudicial effect. If the jury believed that defendant was the driver, in light of the testimony of
no less than four eyewitnesses that saw defendant shoot Goss, the possibility of the jury giving this
evidence undue or preemptive weight seems unlikely. Id. In any event, the possible prejudice did
not substantially outweigh the probative value of the evidence. Therefore, it was not subject to
exclusion under MRE 403. For these reasons, Cann’s and Murray’s testimony that defendant
followed them after they witnessed the shooting was admissible.
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Nevertheless, even under MRE 404(b), this evidence was admissible. Under VanderVliet,
the first hurdle the prosecution had to overcome was offering the evidence for a proper purpose
under MRE 404(b). VanderVliet, 444 Mich at 55. The prosecution argued the evidence was
admissible to show defendant’s consciousness of guilt. As consciousness of guilt is a
nonpropensity purpose, it was a proper purpose under MRE 404(b). Second, the prosecution had
to establish the evidence was relevant. Id. As noted earlier, following an eyewitness days after an
alleged crime supports an inference of intimidation, and intimidation supports an inference of
guilt.1 Thus, the evidence made it more probable that defendant committed the charged offenses
than if the evidence was not admitted—i.e., it was relevant. MRE 401. Third, the prosecution had
to show that the probative value of the evidence was not substantially outweighed by any unfair
prejudice. VanderVliet, 444 Mich at 55. As discussed earlier, the prosecution met its burden here
as well. For these reasons, the trial court did not abuse its discretion in admitting the evidence
under MRE 404(b), assuming it falls within MRE 404(b) at all.
Defendant also argues that the evidence was inadmissible to bolster the credibility of Cann
and Murray. According to the prosecution, Cann and Murray initially lied to the police because
they were afraid of defendant and they believed defendant was following them. As noted earlier,
the trial court did not address this argument. Further, defendant’s argument on this issue lacks any
legal citation and is, thus, abandoned. People v Miller, 326 Mich App 719, 739; 929 NW2d 821
(2019). Nevertheless, the proffered purpose was also proper, whether under the ordinary rules of
admissibility or under MRE 404(b). “Credibility of a witness is almost always at issue, and thus
evidence bearing on that credibility is always relevant.” People v Spaulding, ___ Mich App ___,
___; ___ NW2d ___ (2020) (Docket No. 348500); slip op at 11. The credibility of Cann and
Murray was certainly relevant here because the prosecution was asking the jury to believe their
testimony that defendant shot Goss.2 Further, that a vehicle Cann and Murray believed to be driven
by defendant was following them days after the alleged murder tends to explain why they were
initially reluctant to tell the police the truth of what they observed. As such, it was both material
and probative under MRE 401, and it was not propensity evidence under MRE 404(b). We note
that under this theory of admissibility, the actual identity of the driver is not important. All that
matters is that Cann and Murray believed defendant was the driver. Finally, once again, the risk
of unfair prejudice to defendant was fairly limited. Under this theory, the jury would only have
used the testimony to consider how much weight to give to Cann’s and Murray’s testimony. With
such a limited scope of relevance, the risk of undue or preemptive weight is similarly limited.
Musser, 494 Mich at 357. For these reasons, Cann’s and Murray’s testimony was similarly
admissible to explain why they initially lied to police.
1
The discussion earlier about there being sufficient evidence for the jury to conclude defendant
was the driver of the vehicle following Cann and Murray applies equally here.
2
We also note that “[t]he credibility of a witness may be attacked by any party, including the party
calling the witness.” MRE 607.
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Affirmed.
/s/ Jonathan Tukel
/s/ Deborah A. Servitto
/s/ /Michelle M. Rick
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