People v. Smith

336 Mich.App. 79

969 N.W.2d 548

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Alonte Perton SMITH, Defendant-Appellant.

No. 346044

Court of Appeals of Michigan.

Submitted May 7, 2020, at Lansing.

Decided February 18, 2021, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, John McColgan, Saginaw County Prosecuting Attorney, and Carmen R. Fillmore, Assistant Prosecuting Attorney, for the people.

Lee A. Somerville, Redford, for defendant.

Before: Swartzle, P.J., and Gleicher and M. J. Kelly, JJ.

Swartzle, P.J. Defendant shot the wrong person. Defendant and the intended victim were in rival Saginaw-area gangs, and the intended victim had recently made homophobic slurs against him in a Facebook Live video. As revenge, defendant shot the actual victim, a woman whom he mistook for the rival-gang member. This was the prosecutor's theory in the criminal trial, and in support, the prosecutor relied on various Facebook posts and the video. Yet most of the statements in the Facebook posts were made by third parties who did not testify at trial, and all of the Facebook evidence came from the Facebook pages of nontestifying third parties.

Although a close call, the trial court did not abuse its discretion in authenticating the Facebook evidence. Yet the trial court did abuse its discretion in admitting several hearsay statements from that evidence. We conclude, however, that while the hearsay statements should not have been admitted, they were merely cumulative to other admissible, nonhearsay evidence. Finding no other error justifying reversal or a new trial, we affirm defendant's convictions, though we do reverse and remand on a sentencing issue.

I. BACKGROUND

This case arises from a shooting that occurred in the early-morning hours of February 9, 2017. The victim was shot more than 10 times while seated in the front-passenger seat of a vehicle in the driveway of her home. Although no eyewitness could identify the shooter, data from defendant's GPS tether showed that he was present at the scene when the shooting occurred. The prosecutor argued that defendant was a member of a gang and that he shot the victim after mistaking her for Amaris Kinnard, a rival-gang member with whom he had been feuding on Facebook. The prosecutor introduced statements purportedly made by third parties on Facebook to prove that defendant went by the nickname "Brick Head" and introduced a video purportedly posted by Kinnard on Facebook Live to prove that she had disparaged Brick Head online, giving rise to defendant's motive to shoot her. Neither Kinnard nor any of the other third parties who made these statements was called as a witness. The focus on appeal is the admissibility and use of the Facebook evidence, though defendant does raise other, non-Facebook related claims that we address.

A. THE SHOOTING

Late in the evening of February 8, 2017, Tamika Amos, Joy Matthews, and Dorothy Cooper were hanging out together. Sometime around midnight, the women decided to visit a convenience store to purchase alcohol. Matthews drove her vehicle to the store, with Amos in the front-passenger seat. Cooper accompanied the two women to the store, but traveled in a separate vehicle. Amos entered the store and then returned to Matthews's vehicle. As the women drove away from the store, Cooper led the way in her vehicle and Matthews followed in her vehicle, with Amos as her front-seat passenger.

As soon as she left the store's parking lot, Matthews noticed that a white vehicle "zoomed up behind" her vehicle and followed closely behind her rear bumper. Matthews could not discern the make or model of the white vehicle, how many doors it had, or how many occupants were inside it. Matthews made two turns after leaving the store, and the white vehicle made the same two turns. While on South 24th Street, just as she crossed Cherry Street, Matthews noticed that the white vehicle was no longer behind her. Matthews pulled into the driveway of Amos's home, which was close to Cherry Street. She placed the vehicle in park, turned off the headlights, and sat talking to Amos for several minutes.

In addition to Matthews's observations, both Amos and Cooper also noticed that a white vehicle had followed Matthews's vehicle after they left the store. Amos testified that when Matthews pulled her vehicle into the driveway of Amos's home, the white vehicle pulled into a nearby driveway and turned off its headlights. Cooper was not able to see how many occupants were in the white vehicle, but she also saw it pull into a driveway. None of the three women noticed a person getting out of the white vehicle after it parked.

Matthews testified that she and Amos sat in her vehicle, talking for several minutes.

Then gunshots rang out. One of her vehicle's windows was shot out, and steady shots kept coming at the passenger door of the vehicle. Amos indicated that she had been shot, and Matthews attempted to flee by driving around the house to the backyard, where she struck a tree. Meanwhile, Amos testified that she was seated in the front-passenger seat of Matthews's vehicle, with her window up. She saw a dark figure standing a few feet away in her neighbor's yard, and she saw the flash of a firearm. Because it was dark, she could not identify the race of the shooter. Amos was shot more than 10 times, though she survived the attack.

Neither Matthews, Amos, nor Cooper could identify defendant as the shooter, and none of them knew defendant. There was no testimony that any of the women were members of a gang or that defendant had a gang-related motivation to shoot any of them. Furthermore, both Matthews and Amos denied that they had any enemies or problems with anybody at the time of the shooting.

B. THE POLICE INVESTIGATION

1. THE SCENE OF THE SHOOTING

Buena Vista Township Police Department Officer Anthony Teneyuque was dispatched to the scene of the shooting at approximately 12:32 a.m. He observed that Amos was "writhing in pain" and that she had bullet holes in her legs, as well as significant injuries to her right hand. Amos told him that she and Matthews had been sitting in Matthews's vehicle when somebody started shooting. Officer Teneyuque observed numerous bullet holes in the passenger door of the vehicle. Officer Teneyuque spoke with Matthews, who told him that she and Amos had been at a local convenience store, and although they had not encountered any problems with anyone at the store, they had noticed a white vehicle follow them home.

After speaking with Amos and Matthews, Officer Teneyuque searched the driveway and front yard, where he found broken glass from the vehicle's shattered window. He found spent shell casings that had been discharged from a handgun, located approximately 10 to 15 feet from the spot where Matthews's vehicle had been parked. He found the shell casings in a grassy area containing a fence post, near the driveway of the neighbor's house. Another police officer collected 14 spent shell casings that had been fired from a 40-caliber handgun. Officer Teneyuque estimated that the shooter was standing within five feet from the location of the shell casings when the shooter fired the handgun at Amos. No handgun was ever recovered, and the prosecutor presented no evidence that defendant was found in possession of a 40-caliber handgun.

2. TETHER EVIDENCE

Three witnesses testified that data from defendant's GPS tether placed him at the scene of the shooting when it occurred. Several witnesses also provided circumstantial evidence that defendant had covered his GPS-tether unit with tinfoil on the night of the shooting in a partially successful attempt to block the unit's signal from connecting with GPS satellites. The prosecutor presented this evidence for two purposes: to prove that defendant was present at the scene of the shooting when it occurred, and to prove that defendant committed the criminal offense of tampering with an electronic-monitoring device.

Gary Lutkus, a parole agent for the Michigan Department of Corrections (MDOC), testified that defendant was on parole on February 8–9, 2017, that he served as defendant's parole officer, and that defendant was monitored by a GPS tether at that time. Agent Lutkus testified that defendant had been "on and off" a GPS tether at different periods in time because defendant "went to jail on a violation" and that defendant was placed back on a GPS tether "after serving a jail sentence." The trial court promptly instructed the jury to "ignore and disregard" Agent Lutkus's testimony that defendant had been incarcerated and instructed the jury that "when [defendant] was on the tether device is the only relevant information you are to consider."

Walter Wysopal, also a parole agent for the MDOC, testified that he regularly operated a software program to monitor GPS-tether units worn by parolees. After he learned about the shooting in this case, he searched that software program for the address where the shooting had occurred. According to Agent Wysopal, the software program indicated that defendant's GPS-tether unit was present at the scene of the shooting. Agent Lutkus explained that, because defendant was not permitted to leave his residence at night, defendant had violated the conditions of his tether by being present at Amos's home on the night of the shooting.

Jessica Reuschel, another agent with the MDOC, testified that she worked in that agency's electronic-monitoring center, where she specialized in monitoring individuals under MDOC jurisdiction who were wearing a tether. The trial court qualified Agent Reuschel as an expert regarding the electronic-monitoring maps and systems associated with the tracking of GPS tethers. She testified about a map that was displayed to the jury, showing the location of defendant's tether at various points in time on February 8–9, 2017. She further testified that the tether was still attached to defendant at that time because the computer system had never...