People v. Gatson, No. 284654 (Mich. App. 9/1/2009), No. 284654.

Page 1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DECARLO DAMIEN GATSON, Defendant-Appellant.

No. 284654.

Court of Appeals of Michigan.

September 1, 2009.

Appeal from Wayne Circuit Court, LC No. 08-000769.

Before: Cavanagh, P.J., and Markey and Davis, JJ.

UNPUBLISHED

PER CURIAM.

Defendant was convicted by a jury of being a felon in possession of a firearm, MCL 750.224f, carrying a concealed weapon (CCW), MCL 750.227, and possession of a firearm during the commission of a felony,¹ MCL 750.227b. He was sentenced as an habitual offender, second offense, MCL 769.10, to concurrent prison terms of 7 months to 7½ years each for his felon in possession and CCW convictions, both of which to be served consecutive to a five-year term for his felony firearm conviction. Defendant appeals as of right. We affirm, but we remand for the trial court to correct a portion of defendant's sentence.

On December 23, 2007, at approximately 12:55 a.m., Detroit Police Officers Michael Patti and Brian James were on routine patrol in a fully marked police vehicle when they observed a group of people outside a gas station. The officers made a U-turn and pulled into the parking lot, whereupon defendant and two other men walked quickly toward the sidewalk, then began running as the police officers continued to approach. Officer James pursued one of the other men on foot, while Officer Patti pursued defendant in the police vehicle, apparently losing control of the vehicle at least once in the process because of the slippery road conditions. Both officers testified that they saw defendant remove a handgun from his pants; Officer Patti observed defendant throw the handgun into a snow bank. Officer Patti exited the patrol vehicle and, after a short foot chase and scuffle with defendant, placed him under arrest. He retrieved the handgun and found it loaded with five live rounds.

Defendant's defense at trial was that he did not possess the handgun. Defendant and the other man pursued by Officer James both testified that they ran away from the gas station because they believed it was going to be blown up by a vehicle. Defendant had, consistently, stated in a post-arrest interrogation conducted by Sergeant Raymond Evans that he ran away because the police vehicle almost hit the gas pumps and he did not want to get blown up. Another defense witness, Gilbert Howard, testified that he walked hurriedly away from the gas station after he heard a loud engine roaring and saw everybody leaving. Defendant testified that he never possessed a gun.

On appeal, defendant argues that the evidence was insufficient to support each of the convictions and, in addition, that the verdict for each conviction was against the great weight of the evidence. Defendant argues that the officers' testimony was patently incredible and that the prosecution failed to provide the requisite proof that the handgun was operable. We disagree. In reverse order, the relevant definition of a "[f]irearm" is found in MCL 750.222(d):

a weapon from which a dangerous projectile may be propelled by an explosive, or by gas or air. Firearm does not include a smooth bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BB's not exceeding .177 caliber.

Decisions considering the similar definition of "firearm" in MCL 8.3t² indicated that a "firearm" must be operable, such that "the pistol must be capable of propelling the requisite-sized dangerous projectile or be able to be altered to do so within a reasonably short time." People v Parr, 197 Mich App 41, 45; 494 NW2d 768 (1992); see also People v Gardner, 194 Mich App 652; 487 NW2d 515 (1992). However, our Supreme Court has explained that operability is not relevant to whether a weapon meets the statutory definition of a firearm under MCL 750.222(d). People v Peals, 476 Mich 636, 638; 720 NW2d 196 (2006). Therefore, we reject defendant's assertion that the handgun's operability was relevant to his convictions for offenses within the firearms chapter of the Penal Code, MCL 750.222 et seq.

We also find nothing patently incredible about the police officers' testimony. "[W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). "The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." People v Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003). There must be some exceptional circumstance, such as testimony that contradicts indisputable physical facts or is patently incredible, to take the issue of witness credibility away from the jury. People v Lemmon, 456 Mich 625, 642-644; 576 NW2d 129 (1998).

To prove the CCW offense, the prosecutor was required to prove beyond a reasonable doubt that defendant knowingly carried a concealed pistol. MCL 750.227(2); People v Hernandez-Garcia, 477 Mich 1039, 1040 n 1; 728 NW2d 406 (2007). A pistol is defined as "a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded firearm that by its construction and appearance conceals itself as a firearm." MCL 750.222(e). To be concealed, it must not be readily observable, but need not be absolutely hidden. People v Jackson, 43 Mich App 569, 571; 204 NW2d 367 (1972). The offenses of felon in possession of a firearm, MCL 750.224f, and felony-firearm, MCL 750.227b, also contain an element of possession. Peals, supra at 640.

Defendant argues that the officers' testimony was incredible because, among other things, they admitted that they did not perceive defendant engaging in any illegality at the gas station; the fact that after observing defendant produce a gun, Officer James pursued one of the other fleeing individuals and neither officer immediately responded by drawing and possibly firing their own guns; the fact that defendant needed treatment at a hospital but was described by officers as having sustained only minor injuries, and the fact that the gun was preserved for fingerprinting but no fingerprints were ever taken. These facts might be relevant to other possible arguments, but they simply do not render the officers' testimony patently incredible. Viewed in a light most favorable to the prosecution, the police officers' testimony regarding their observations of defendant were sufficient to establish the requisite possession to sustain each conviction. The credibility of their testimony was for the jury to decide. Wolfe, supra at 514. Therefore, in addition to finding no basis for a directed verdict of acquittal, defendant has failed to establish a plain error to support a new trial based on the great weight of the evidence. Musser, supra at 218-219.

Defendant next argues that the trial court violated his right under US Const, Am VI, to be tried before a jury drawn from a fair cross-section of the community when it excused a prospective juror who advised the court during voir dire, "I don't think I speak English good. I don't think that I will understand so I don't want to judge something. So I don't understand English." We disagree. The exclusion of a single prospective juror who volunteered information that could have affected her ability to function as an effective juror is simply not the kind of systematic exclusion of a distinct group necessary to establish even "a prima facie violation of the fair-cross-section requirement." Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979). Even if that one juror was part of defendant's hypothetical "distinctive" group consisting of the immigrant population, the states remain free to establish relevant qualifications for jurors that advance significant state interests. Id. at 367-368. Under MCL 600.1307a(1)(b), a person must be able to communicate in the English language in order to qualify as a juror. We find no error in the trial court's decision to excuse the juror.³

Next, defendant argues that he was deprived of his right to a fair trial because the trial court and the prosecutor disclosed to the jury that he had been previously convicted of a specified felony. Defendant argues that the jury should have been instructed only that he was ineligible to possess a weapon, not that the reason why he was ineligible was because of a prior felony. We disagree. This issue is waived because the disclosure was by stipulation of both defendant and the prosecutor. People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998). In any event, ineligibility because of a prior felony is an actual element of the crime with which defendant was charged, and establishing this element by stipulation actually minimizes prejudice. We further hold that any challenge to the trial court's flight instruction was waived by defense counsel's affirmative reply to the trial court's question, "Are both sides satisfied with the charge?" People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002).

Defendant next argues that the prosecutor engaged in misconduct and denied him a fair trial by ridiculing and disparaging the defense, to the extent that reversal is warranted even though defendant did not object. Plaintiff concedes on appeal that it was improper for the trial prosecutor to state that defense counsel was doing a "good job of trying to muddy it up" when commenting on Officer Patti's testimony. However, the prosecutor's remarks are examined in context to determine whether the defendant was denied a fair and impartial trial. People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007). Defendant has the burden of showing an...