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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v AKO MBILI GILMORE, Defendant-Appellant.

UNPUBLISHED August 11, 2009

No. 285080 Ingham Circuit Court LC No. 06-001329-FC

Before: Before: O'Connell, P.J., and Bandstra and Donofrio, JJ. PER CURIAM. Defendant appeals as of right his conviction and sentence for felony murder, MCL 750.316(1)(b), and conspiracy to commit armed robbery, MCL 750.157a. We affirm. Defendant's convictions arise from the shooting death of Allen Redd, on September 11, 2006, in a garage located at 1318 Ohio Street in Lansing. The prosecution's theory at trial was that defendant and Lance Jones conspired to rob Redd of money and drugs at gunpoint and that Redd was killed during that robbery.1 The defense claimed that while defendant admittedly was present at the time of Redd's murder, he was not a participant in any plan or attempt to rob Redd, but instead merely tried, unsuccessfully, to intervene in an altercation between Jones and Redd. Testimony and evidence presented at defendant's trial established: that defendant worked as a drug runner or "mule" selling drugs for Redd and that he sold heroin to Jones; that there was an unusually large amount of telephone contact between defendant and Redd and between defendant and Jones in the days leading up to Redd's murder; that there was no telephone contact between Jones and Redd in the six months preceding Redd's murder; that the home at 1318 Ohio Street ("1318"), where Redd was murdered, was owned by Jones's stepfather; that Jones borrowed the key to 1318 shortly before Redd's murder; that Jones also borrowed a .22 caliber Ruger rifle, which was the murder weapon, from his stepfather two days before the murder; that other actions were taken in apparent preparation for the meeting with Redd, including hanging tarps in the garage of 1318 where the meeting was to occur and purchasing fireworks that were then used in an attempt to camouflage the noise generated by the
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Jones was tried separately and, on August 28, 2007, was convicted of murder, conspiracy to commit armed robbery and felony firearm.

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shooting; that Jones had taken defendant to the garage on at least two previous occasions; that on the day of Redd's murder two men fitting defendant's and Redd's descriptions were seen scuffling outside the garage, in the vicinity where two buttons from defendant's shirt were found, and that one of the men forced the other back into the garage; that Redd was shot and killed inside the garage; that Redd's blood was on the shirt, pants and shoes defendant was wearing at the time of Redd's murder and that the blood spatter on his clothes indicated defendant was in close proximity to Redd at the time he was shot; that money was taken from Redd's pockets; and that, after Redd was shot, men fitting defendant's and Jones's descriptions sped away from 1318 in Jones's mother's 1992 Oldsmobile Cutlass. On appeal, defendant first argues that there was insufficient evidence to establish his guilt of the predicate felony of conspiracy to commit armed robbery. We disagree. When considering a claim of insufficient evidence, this Court must view the evidence presented at trial in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005); People v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005). Conflicting evidence must be resolved in favor of the prosecution. People v Harmon, 248 Mich App 522, 524; 640 NW2d 314 (2001). And, we "must draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Further, "[c]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime." Id. MCL 750.157a provides that any person who conspires together with one or more persons to commit an offense prohibited by law or to commit a legal act in an illegal manner is guilty of conspiracy. Conspiracy requires proof of both the intent to combine with others and the intent to accomplish the illegal objective. People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). Thus, to establish defendant's guilt of conspiracy to commit armed robbery, the prosecutor was required to prove that defendant intended to combine with Jones to rob Redd while armed and that defendant intended that the armed robbery occur. Id. There was no dispute that defendant was present when Redd was shot; the only question was whether he was "merely" present or whether he was an active participant in a planned armed robbery of Redd, and ultimately, in Redd's murder. From our review of the record, we conclude that there was sufficient evidence to convict defendant of the predicate felony of conspiracy to commit armed robbery. We note specifically: (1) the absence of any phone contact between Jones and Redd in the six months preceding Redd's murder and the substantial increase in the amount of phone contact between Jones and defendant and defendant and Redd in the days leading up to the murder; (2) testimony that defendant and Redd "scuffled" outside the garage, as substantiated by the two buttons from defendant's shirt on the ground in that vicinity, with one of them pulling or forcing the other into the garage; and (3) testimony that defendant and Jones left the scene together, in Jones's mother's car and the absence of any testimony placing any vehicle driven by defendant in the vicinity, suggesting that they also arrived at the scene together. Drawing all reasonable inferences and making credibility choices in support of the jury verdict, as this Court is required to do, the evidence presented was sufficient to permit a rational jury to infer that defendant arranged for Redd to come to 1318 on September 11, 2006, for the purposes

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of combining with Jones to rob Redd of heroin and/or money at gunpoint, and that defendant further participated in the crime by forcing Redd into the garage, where Jones then shot him. Defendant next asserts that evidence that prosecution witness Charles Smith perjured himself at Jones's trial, discovered after defendant's trial was completed, warrants a new trial, and that the trial court abused its discretion by concluding otherwise. We disagree. This Court reviews a trial court's decision whether to grant a motion for a new trial for an abuse of discretion. People v Cress, 468 Mich 678, 691; 644 NW2d 174 (2003). A trial court abuses its discretion when it reaches a decision resulting in an outcome that falls outside the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003); People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). As our Supreme Court has explained: For a new trial to be granted on the basis of newly discovered evidence, a defendant must show that: (1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. [Cress, supra at 692 (internal quotations and citation omitted).] Jones was tried separately and was convicted of conspiracy to commit armed robbery, felony murder and felony firearm. Charles Smith testified at Jones's trial that he knew defendant as a result of purchasing heroin from him and he knew Jones from "seeing him around different people who use" and that he "met him again in jail." Smith testified further that, while he and Jones were both in jail, Jones confessed in detail to Redd's murder, telling Smith that defendant and Jones planned to rob Redd of heroin and money, but "pretty much everything went wrong"; that Redd did not want to "give everything up" and that Jones shot Redd after Redd and defendant started fighting. On November 7, 2007, Arthur Garrett, who had been housed with defendant for a short time in December 2006, and then with Smith thereafter, executed an affidavit in which he averred that Smith repeatedly told Garrett that he did not know anything about Jones's case and that he was being untruthful about Jones having confessed in order to try to get out of jail. Jones moved for a new trial on the basis of Garrett's affidavit. That motion was denied following a May 15, 2008 evidentiary hearing, at which Garrett and others testified. At defendant's trial, Smith testified that he knew defendant "[t]hrough dealing drugs and stuff, heroin"; that he would meet up with defendant "[o]nce, twice, three times a week or so," depending on how much money he had, to buy heroin for his personal use; that Smith called defendant on his cell phone to arrange drug buys; and that the last time Smith bought heroin from defendant was near the end of August 2006. Cellular telephone records showing that Smith called defendant 22 times in a six-month period ending on August 29, 2006 corroborated this testimony. Smith testified further that, he knew Jones as a fellow drug user and purchaser of heroin from defendant, an assertion that defendant did not dispute. Additionally, Smith testified that on one occasion, late in August 2006, Smith, his brother, defendant and another person were riding in a van together and Smith overheard defendant telling someone "he was coming into, you know, quite a bit of heroin, about 200 grams or so." -3-

In July 2008, defendant also moved for a new trial based on Garrett's affidavit, arguing that Smith's perjury was material to the outcome of defendant's trial. An evidentiary hearing was held on this motion on November 6, 2008. At this hearing, Garrett reiterated that Smith told him that he was giving false information to detectives so he could get out of jail. The trial court denied defendant's motion, noting the evidence implicating defendant in Redd's murder, including eyewitness testimony, phone records and blood spatter evidence, and concluding it was not probable that a new trial would result in a different outcome. On appeal, defendant argues that the trial court erred by concluding that introduction of evidence that Smith perjured himself would not make a different result probable on retrial. We disagree. Michigan Courts have held that "[t]he discovery that testimony introduced at trial was perjured may be grounds for a new trial." People v Mechura, 205 Mich App 481, 483; 517 NW2d 797 (1994), citing People v Barbara, 400 Mich 352, 363; 255 NW2d 171 (1977). As with other newly discovered evidence, however, "[i]n order to merit a new trial on the basis of such a discovery, a defendant must show that the evidence (1) is newly discovered, (2) is not merely cumulative, (3) would probably have caused a different result, and was not discoverable and producible at trial with reasonable diligence." Id. The only uncorroborated testimony offered by Smith at defendant's trial was that he overheard defendant tell someone that he was "coming into" a large quantity of heroin. Absent this testimony, there remained substantial evidence implicating defendant in planning an armed robbery of Redd, including the unusual amount of phone contact between Jones and defendant and Jones and Redd in the days leading up to the murder, the absence of any phone contact between Redd and Jones in the six months preceding the murder, eyewitness testimony about the "scuffle" outside the garage and about seeing defendant and Jones leave the scene together, the buttons from defendant's shirt found outside the garage, and the amount and pattern of Redd's blood on defendant's clothing. Even were the jury to disbelieve Smith's testimony about overhearing defendant's purported statement, there remained sufficient evidence to convict defendant of the crime. Nothing in Garrett's affidavit or testimony directly corroborated defendant's version of events or undermined the prosecution's version of events.2 Defendant's assertion that there is significant and credible evidence that a prosecution witness perjured himself at trial about central issues in the case significantly overstates the importance of Smith's testimony, as well as the impact of Garrett's affidavit on that testimony. Considering the brief and limited nature of Smith's uncorroborated testimony against defendant, and considering the

This is in stark contrast to the nature of the newly discovered evidence at issue in the cases relied on by defendant. In People v Mechura, 205 Mich App 481, 483; 517 NW2d 797 (1994), the newly discovered evidence directly corroborated the defendant's assertion that he shot the victim in self-defense. In People v Terry Burton, 74 Mich App 215; 253 NW2d 710 (1977), the newly discovered evidence directly corroborated the defendant's assertion that he was not involved in the robbery in any way. And, in People v LoPesto, 9 Mich App 318; 156 NW2d 586 (1967), the newly discovered evidence called into question the credibility of evidence this Court deemed of "real importance" on a crucial issue to the outcome of the trial.

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other evidence against defendant as described above, the trial court did not abuse its discretion by denying defendant's motion for a new trial. Defendant argues further that the trial court abridged his Sixth Amendment right to have a jury determine facts relevant to his guilt by concluding that it was not probable that a jury would reach a different conclusion on retrial. Essentially, defendant asserts that the trial court's analysis

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