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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KENNETH MCMULLEN, Defendant-Appellant.

UNPUBLISHED January 17, 1997

No. 186971 LC No. 94-008763

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BERNARD HOWARD, Defendant-Appellant. No. 186972 LC No. 94-008763

Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber,* JJ. PER CURIAM. Defendants Kenneth McMullen and Bernard Howard, and a codefendant, Ladon Salisbury, were tried jointly, but with two separate juries--one for McMullen and Howard and one for Salisbury. The jury convicted defendant McMullen of three counts of first degree premeditated murder, MCL 750.316; MSA 28.548, three counts of felony-murder, MCL 750.316; MSA 28.548, three counts of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant Howard was convicted of three counts of second-degree murder, MCL 750.317; MSA 28.549, three counts of first-degree felony murder, three counts of armed robbery, and one count of felony-firearm. Salisbury was convicted by

* Circuit judge, sitting on the Court of Appeals by assignment. -1

his jury of three counts each of first-degree premeditated murder, first-degree felony-murder and armed robbery, together with one count of felony-firearm. Defendants McMullen and Howard each received sentences of life imprisonment without parole for the first-degree murder convictions and life imprisonment for the armed robbery convictions, together with a consecutive two-year sentence for the felony-firearm conviction.1 McMullen and Howard filed separate appeals as of right, which were consolidated for our review. 2 We affirm in part, but reverse and vacate each defendants' armed robbery convictions and sentences, and modify defendant McMullen's judgment of sentence to reflect only three convictions and sentences for first-degree murder. Defendants' convictions stem from the July 16, 1994, robbery and shooting deaths of three individuals, Marcus Averitte, Reshay Winston, and John Thornton, each of whom died from multiple gunshot wounds. Testimony indicated that marijuana, cash, and other items of personal property were stolen from the victims. Witnesses at trial placed McMullen, Salisbury and a third unidentified individual at the scene of the crime near the time of the shootings. The police investigation produced evidence that the victims were shot with three different firearms. One witness heard a barrage of gunshots and then observed a van, which she later identified as belonging to codefendant Salisbury, pull away from the crime scene at a high rate of speed. A subsequent search of codefendant Salisbury's house led to the discovery and seizure of a Glock 9mm semi-automatic pistol that was later identified as one of the firearms used in the offense. Shortly after the offense, the police obtained a written statement from defendant McMullen, wherein McMullen admitted assisting Howard and Salisbury in the commission of the offenses. However, McMullen claimed that it was Howard and Salisbury who shot the victims and McMullen denied either possessing a gun or shooting any of the victims himself. The police also obtained a written statement from defendant Howard, wherein Howard admitted assisting McMullen and Salisbury, but Howard denied possessing any gun himself and claimed that it was McMullen and Salisbury who shot the victims. Both statements were introduced at trial, but the jury was instructed that each statement was admissible only against the defendant who made the statement and could not be considered against the other defendant. Following their arrests, McMullen, Howard and Salisbury were all placed in the Detroit Police Headquarters' jail where they allegedly met Joe Twilley, who was also an inmate at the jail, but had trustee status, thereby giving him the ability to move about the jail. Twilley claimed that McMullen and Salisbury both spoke to him about the charged offense and both told him that all three of them, McMullen, Howard and Salisbury, committed the offenses together and that all three of them were armed with guns and participated in shooting the victims. The statements by McMullen to Twilley and Salisbury to Twilley were both admitted at trial, not only against the defendant who made the statement, but also as substantive evidence against each of the other codefendants implicated in the statement. McMullen and Howard both presented an alibi defense. Also, they each took the stand and denied any involvement in the offenses. Both admitted signing their respective police statements, but claimed they were coerced into doing so by the police, who, they claimed, fabricated the events described in the statements. McMullen and Howard both denied discussing the offense with Joe Twilley. -2

On appeal, defendants McMullen and Howard challenge the admission of Salisbury's statements to Joe Twilley as substantive evidence against each of them. Additionally, defendant Howard challenges the admission of McMullen's statement to Twilley as substantive evidence against him. Defendants contend that the statements made by Salisbury, as to each of them, was inadmissible hearsay and, further, that admission of the statements violated their constitutional right to confrontation. US Const, Am VI; Const 1963, art 1,

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