People v. Bankston

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JEROME ANTHONY BANKSTON, Defendant-Appellant.

No. 352604

Court of Appeals of Michigan

July 29, 2021

UNPUBLISHED

Macomb Circuit Court LC No. 2018-004312-FC

Before: Gadola, P.J., and Jansen and O'Brien, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions for armed robbery, MCL 750.529, two counts of carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b receiving and concealing a stolen motor vehicle, MCL 750.535(7), and assault with intent to murder, MCL 750.83. Defendant also appeals as of right his separate bench trial convictions of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and an additional count of felony-firearm.^[1] Defendant was sentenced as a third-offense habitual offender, MCL 769.11, to 12 to 30 years' imprisonment for armed robbery, 5 to 10 years' imprisonment for receiving and concealing stolen property, 28 to 60 years' imprisonment for assault with intent to murder, 5 to 10 years' imprisonment for felon-in-possession, and two years' imprisonment for each felony-firearm conviction. We affirm.

I. BACKGROUND

This case arises from an armed robbery of an armored-truck guard that took place outside of Bank of America in Clinton Township on August 28, 2014. The guard, Ryan Smith, testified that he was transporting money into the bank at around 1:00 p.m. when a man, later identified as Bernard Allen approached him from behind with a silver revolver pointed at Smith. Smith allowed Allen to take the money, and after Allen started to run off with the money, Smith removed his gun from his holster and began firing at Allen, who returned fire. Smith testified that he eventually realized he was being shot at from two different directions-from Allen and from the front seat of a nearby silver minivan. Smith turned his attention and gunfire to the minivan, which quickly drove out of the parking lot. Allen was killed during the shootout. Although several bystanders witnessed the robbery, none of the witnesses were able to identify the driver of the minivan.

Later that same day, the minivan was found abandoned a short distance from the bank. The ignition had been punched out, there was a screwdriver in the cup holder, several windows had been shot out, and there was blood on the steering wheel, driver's seat cushion, and the driver's side seatbelt latch or receiver. The police also discovered a revolver underneath a vest on the middle row of seating. The police had few leads on the identity of the driver until Detective James Hertel received an anonymous tip that the person the police were looking for was defendant. The tipster further indicated that defendant had been shot in the robbery, "stitched up by a friend," and left town. Defendant was already known to have been in contact with Allen, and his cell phone records demonstrated that he was near Bank of America just before the robbery took place.

The police were unable to locate defendant, and the investigation remained inactive for several years until, in 2018, a local Combined DNA Index System database administrator got a case-to-case match between the DNA profile from the blood found in the minivan and a profile entered by the New Orleans Police Department. Defendant was eventually located in Louisiana, arrested, and transported to Michigan for trial in this case. Defendant's DNA was analyzed, compared to the blood samples from 2014, and confirmed to be a match. The prosecution also presented evidence that defendant had what appeared to be a bullet wound scar in a location consistent with the trajectory of one of the bullets that struck the minivan.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first argues that the prosecution did not present sufficient evidence to support his felon-in-possession and related felony-firearm bench-trial convictions. We disagree.

Challenges to the sufficiency of the evidence are reviewed de novo on appeal. People v Bailey, 330 Mich.App. 41, 46; 944 N.W.2d 370 (2019). "Evidence is sufficient if, when viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." Id. (quotation marks and citation omitted). In reviewing the sufficiency of the evidence, this Court must draw reasonable inferences and assess witness credibility in favor of the verdict. People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000). "Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of [a] crime." People v Savage, 327 Mich.App. 604, 613; 935 N.W.2d 69 (2019) (quotation marks and citation omitted; alteration in original).

Conviction of felon-in-possession under MCL 750.224f requires proof of two elements: "(1) the defendant is a felon who possessed a firearm (2) before his right to do so was formally restored under MCL 28.424." People v Bass, 317 Mich.App. 241, 268; 893 N.W.2d 140 (2016). "The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony." Id. at 268-269 (quotation marks and citation omitted). "Possession of a firearm can be actual or constructive, joint or exclusive." People v Johnson, 293 Mich.App. 79, 83; 808 N.W.2d 815 (2011). "The test for constructive possession is whether the totality of the circumstances indicates a sufficient nexus between defendant and the contraband." People v Minch, 493 Mich. 87, 91-92; 825 N.W.2d 560 (2012) (quotation marks and citation omitted). The defendant must knowingly have the power and intention to exercise dominion and control over the firearm. Id. at 92.

Directly after the robbery, Smith told the police that the driver of the minivan pointed a gun at him. Although he did not initially report that the driver shot at him, Smith was adamant at trial that he saw muzzle flashes coming from the front of the vehicle, which prompted him to return fire. Viewing this evidence in the light most favorable to the prosecution, a fact-finder could conclude beyond a reasonable doubt that the driver of the minivan had a firearm in his possession during the robbery. At trial, defendant's identity as the driver of the minivan was firmly established. When the abandoned minivan was located shortly after the robbery, there was blood on the driver's side of the vehicle with at least some of the blood appearing fresh. The blood samples that were analyzed by the Michigan State Police matched defendant's DNA profile, and defendant had a scar that was consistent with the trajectory of the bullet that passed through the passenger side head rest before striking the steering wheel. On the basis of the foregoing, the prosecution presented sufficient evidence to establish beyond a reasonable doubt that defendant possessed a firearm and was guilty of both felon-in-possession and felony-firearm.^[2]

III. ANONYMOUS TIP TESTIMONY

Next, defendant argues that Detective Hertel's testimony about the anonymous tip was improperly admitted. We disagree.

Defendant failed to preserve this issue for review by objecting at trial on the same ground he asserts on appeal. People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). Unpreserved claims of error are reviewed for plain error affecting substantial rights. People v Caddell, 332 Mich.App. 27, 40; 955 N.W.2d 488 (2020) (regarding constitutional errors); People v Brown, 326 Mich.App. 185, 195; 926 N.W.2d 879 (2018) (regarding evidentiary errors). "Under the plain error rule, a defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." People v Wiley, 324 Mich.App. 130, 150-151; 919 N.W.2d 802 (2018) (quotation marks and citation omitted). "To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings." Id. at 151 (quotation marks and citation omitted). Reversal is warranted "only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Thorpe, 504 Mich. at 252-253.

Testimony concerning anonymous tips can raise admissibility concerns under state evidentiary rules and the United States Constitution. First, hearsay-"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," MRE 801(c)-is generally inadmissible. MRE 802. Second, from a constitutional standpoint, "[t]he Confrontation Clause prohibits the admission of all out-of-court testimonial statements unless the declarant was unavailable at trial and the defendant had a prior opportunity for cross-examination." People v Chambers, 277 Mich.App. 1, 10; 742 N.W.2d 610 (2007).

Defendant argues that Detective Hertel's testimony about receiving an anonymous tip was inadmissible for both of these reasons. But when an out-of-court statement is offered to prove something other than the truth of the matter asserted, it is neither hearsay nor barred by the Confrontation Clause. People v Putman, 309 Mich.App. 240, 246; 870 N.W.2d 593 (2015). Without objection by defense counsel, Detective Hertel described receiving a tip that defendant was involved in the robbery, shot, "stitched up by a friend," and left town. The prosecution asked Detective Hertel about how the tip affected the course of his investigation prompting Detective Hertel to explain that the investigation then focused on defendant, whereas defendant had previously been only a person of interest because of his...