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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v AARON MAURICE HAMILTON, Defendant-Appellant.

UNPUBLISHED December 22, 2005

No. 255449 Wayne Circuit Court LC No. 04-000691

Before: Cooper, P.J., and Fort Hood and Borrello, JJ. PER CURIAM. Defendant Aaron Maurice Hamilton appeals as of right from his convictions of first degree murder,1 assault with intent to commit murder,2 and possession of a firearm during the commission of a felony.3 He was sentenced to imprisonment for life without the possibility of parole for the murder conviction, 50 to 100 years' imprisonment for the assault conviction, and to a consecutive sentence of two years' imprisonment for the felony-firearm conviction. We affirm. I. Background Facts At approximately noon on Christmas Day in 2003, defendant was driving in a residential area in the city of Inkster. He stopped and picked up a young acquaintance, Dario Dennard, who was walking through the neighborhood. Shortly thereafter, defendant parked his car in front of a house and jumped out, carrying a shotgun. Defendant fired a shot at the house and injured Dawn Lange, who was standing in front of her kitchen window. He then chased Lamarr Moy, his intended victim, through a neighboring yard, and shot him in the back with a shotgun. When defendant left the vehicle to chase Mr. Moy, Mr. Dennard moved into the driver's seat. Mr. Dennard testified that he intended to leave the scene without defendant, but defendant returned too quickly. Mr. Dennard testified that, at defendant's direction, he then drove to a

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MCL 750.316. MCL 750.83. MCL 750.227b.

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nearby apartment building and parked the car. The two men briefly hid at the home of a friend before separating. Mr. Dennard then walked to his godmother's house where he called a relative to ask for a ride home. Paula Dennard, Mr. Dennard's mother, testified that he told her about the shooting later that evening. While defendant and Mr. Dennard were hiding, Detective Anthony Abdallah of the Inkster Police Department responded to the scene of the shooting. When he arrived, Mr. Moy was standing on a porch, but fell to the ground when he tried to walk toward the detective. Mr. Moy was covered in blood. Detective Abdallah asked Mr. Moy to identify the shooter. However, Mr. Moy's right lung had been punctured. He did not identify his shooter; he only responded with the word "air." Mr. Moy was unable to respond to any further questions and died shortly after arriving at the hospital. The morning after the shooting, the Dennard family awoke late and found defendant asleep on their couch. Mrs. Dennard asked defendant to explain why he shot Mr. Moy and subsequently asked him to make a written statement absolving her son of any fault. Mrs. Dennard testified that defendant instructed her to write the statement, claiming that his handwriting was messy. She testified that defendant subsequently read and signed the two-page statement. Mrs. Dennard then called the police and offered defendant a meal to stall his departure until the police arrived. II. Adjournment Moments before his trial began, defendant moved for a thirty-day adjournment. He claimed that he had just discovered two res gestae witnesses who would bolster his defense. Defendant asserted that the first witness, Hilda Davis, would testify that she saw someone other than defendant fleeing the scene of the crime. He identified the second witness as a woman named Jennifer, but did not specify the substance of her testimony. Defendant contended that he needed more time to locate this second witness and properly subpoena them both. The trial court determined that defendant had been given ample opportunity to investigate his case and could still subpoena these witnesses, as the defense would not present its case until the following day. Therefore, the court denied the motion. We review a trial court's denial of a defendant's request for an adjournment or continuance for an abuse of discretion.4 A motion for adjournment must be based on good cause.5 In determining whether defendant has presented good cause for an adjournment, the court must consider "`whether defendant (1) asserted a constitutional right, (2) had a legitimate reason for asserting the right, (3) had been negligent, and (4) had requested previous adjournments.'"6 Pursuant to MCR 2.503(C), a court may grant an adjournment based on the unavailability of a witness "only if the court finds that the evidence is material and that diligent

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People v Coy, 258 Mich App 1, 17; 669 NW2d 831 (2003). People v Jackson, 467 Mich 272, 276; 650 NW2d 665 (2002), citing MCR 2.503(B)(1). Coy, supra at 18, quoting People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992).

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efforts have been made to produce the witness or evidence."7 Even if the trial court improperly denied the motion for adjournment, reversal is only required if defendant establishes that he was prejudiced by this error.8 While defendant alleged that Ms. Davis's testimony could bolster his defense, he did not establish the substance of Jennifer's testimony. Defendant asserted that he could easily locate Ms. Davis, but did not indicate his reasons for failing to attempt to subpoena her. Although the court could determine that Ms. Davis was a material witness, there was no basis for the court to determine that Jennifer's presence would assist the defense. Furthermore, it is clear that the trial court properly determined that defendant failed to exercise due diligence in locating these witnesses. Accordingly, the trial court did not abuse its discretion by denying defendant's motion for an adjournment. III. Dying Declaration Defendant also challenges the trial court's admission, over his objection, of Mr. Moy's statement--the word "air"--to Detective Abdallah as inadmissible hearsay. The prosecution contended that this statement was admissible as a dying declaration pursuant to MRE 804(b)(2). Defendant contends that the jury could infer from this statement that Mr. Moy attempted to say "Aaron." However, it appears from the record that defendant and Mr. Dennard only knew Mr. Moy by his street name--"Moe." While there is an indication in the record that Mr. Moy knew defendant, there is no indication that he knew defendant by his proper name. Furthermore, the prosecution never argued that Mr. Moy attempted to identify defendant.9 As Mr. Moy did not identify his shooter or make any statement relevant to establishing defendant's guilt or innocence, defendant's challenge is spurious. IV. Statements of Dario Dennard to Paula Dennard Defendant also raises several challenges pro se to his convictions and sentences. Defendant first contends that the trial court improperly admitted, and the prosecutor deliberately elicited, inadmissible hearsay testimony from Paula Dennard that her son, Dario, told her that defendant shot Mr. Moy. This testimony was admitted over defense counsel's repeated objections. Generally, a trial court's decision to admit evidence will be reversed only for an abuse of discretion.10 However, when a trial court's decision regarding the admission of evidence involves a preliminary question of law, we review the issue de novo.11 We review

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MCR 2.503(C)(2).
Coy, supra at 18-19.
Defense counsel alone argued against the inference in closing.
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Id.


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claims of prosecutorial misconduct on a case by case basis, examining any remarks in context, to determine if the defendant received a fair and impartial trial.12 "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."13 The prosecutor did elicit testimony from Mrs. Dennard regarding her son's statement that defendant shot Mr. Moy over defendant's objection. The prosecution contends on appeal that the statement was admissible as a statement of Dario Dennard's then-existing state of mind under MRE 803(3). Pursuant to that rule, "[a] statement of the declarant's then existing state of mind . . . , but not . . . a statement of memory or belief to prove the fact remembered or believed," is admissible as an exception to the hearsay rule.14 Generally, such a statement may be admitted "`to show the effect on the hearer . . . when this effect is relevant.'"15 In this case, however, it is clear that Mrs. Dennard's testimony was elicited to prove the truth of the fact believed. Mrs. Dennard testified that, based on her belief that defendant shot Mr. Moy, she took action to secure a confession from defendant. Under the circumstances, the trial court improperly allowed the prosecution to elicit testimony from Mrs. Dennard regarding Dario Dennard's statement. However, defense counsel conceded at trial that the content of that statement had already been placed before the jury through Dario Dennard's previous testimony. Accordingly, any potential error in the admission of this evidence through Mrs. Dennard's testimony was harmless.16 V. Photographic Line-up Defendant also challenges the photographic line-up conducted on the day of his arrest on several grounds. The trial court admitted the identification of defendant by Walter Lange, Dawn Lange's brother, over defendant's motion to suppress. Defendant alleges that he was arrested before the photographic line-up was conducted and, therefore, he was entitled to a live line-up. Defendant also challenges the lack of counsel at the line-up. Defendant further contends that the line-up was unfair, as the other men depicted in the photo array did not match his description. We review a trial court's factual findings on a motion to suppress for clear error17 and underlying legal determinations de novo.18

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People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). MRE 801(c). MRE 803(3).

People v Fisher, 449 Mich 441, 449; 537 NW2d 577 (1995), quoting 4 Weinstein, Evidence,

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