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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BOBBY EMMITT KENNEDY, Defendant-Appellant.

UNPUBLISHED November 8, 2007

No. 271020 Kent Circuit Court LC No. 03-011966-FC

Before: Whitbeck, C.J., and Talbot and Fort Hood, JJ. PER CURIAM. Defendant Bobby Kennedy appeals by delayed leave granted his jury conviction of first degree premeditated murder,1 being a felon in possession of a firearm (felon in possession),2 and carrying a firearm during commission of a felony (felony firearm).3 The trial court sentenced Bobby Kennedy, as an habitual offender fourth,4 to 2 years' imprisonment (less 610-days' jail credit) for felony firearm, followed by concurrent sentences of life imprisonment without the possibility of parole for murder and two to five years' imprisonment for felon in possession. This case arises out of the June 1997 shooting death of 19-year-old Timmy Thomas. We affirm. I. Basic Facts And Procedural History In December 2003, police arrested Bobby Kennedy, and a one-man grand jury indicted him for Thomas's murder. The prosecution theory of the case was that Bobby Kennedy shot Thomas execution-style because Bobby Kennedy believed that Thomas had stolen some drugs from him and because Thomas had subsequently threatened Bobby Kennedy in front of other people. Several witnesses testified that Bobby Kennedy told people before the shooting that he was going to kill Thomas and that, after the shooting, he bragged that he had done it. According to the prosecution, Bobby Kennedy established a false alibi after the murder with the help of

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MCL 750.316(1)(a). MCL 750.224f. MCL 750.227b. MCL 769.12.

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several witnesses. The witnesses testified that they lied by telling police that Bobby Kennedy was with them on the morning of the murder. The prosecutor also contended that Bobby Kennedy paid for lawyers for the witnesses when they got in trouble during the years between the time of the shooting and the time that the grand jury indicted Bobby Kennedy. The prosecutor posited that Bobby Kennedy used the lawyers he paid for to keep the witnesses quiet and monitor what they said to police. Anthony McLiechey testified that on the morning of June 24, 1997, he drove Bobby Kennedy to the location where the shooting took place, that he saw Bobby Kennedy shoot Thomas, and that he disposed of the gun in a garbage can after the shooting. After the murder, McLiechey drove Bobby Kennedy to Tanea McKinney's apartment. Tanea McKinney testified that Bobby Kennedy and McLiechey came to her apartment sometime around 6:00 or 6:30 a.m. on the morning of June 24, 1997. Tanea McKinney stated that she overheard Bobby Kennedy tell her boyfriend, John Holman, "I got him." Bobby Kennedy then changed his clothes, and Tanea McKinney helped him put his old clothes in a bag to take out to the trash. McLiechey, Bobby Kennedy, Tanea McKinney, and Holman, then all went to breakfast. When police questioned Tanea McKinney a couple days after the murder, she told them that Bobby Kennedy came to her house at 3:00 a.m. on the morning of June 24, 1997, and was there until they went to breakfast. But during the 2003 grand jury hearing, Tanea McKinney confessed to lying about Bobby Kennedy's whereabouts on the morning of the murder. She explained that she eventually decided to tell the truth during the grand jury proceedings because she did not want to be subject to more jail time for lying.5 During his 2003 grand jury testimony, McLiechey repeatedly denied knowing anything about the murder. But McLiechey was later recalled during the grand jury hearing, and he finally admitted that he was involved in the murder as the driver of the vehicle that carried Bobby Kennedy to and from the scene of the shooting. At that time, McLiechey denied that Bobby Kennedy ever threatened him or tried to pay him off. At trial in 2005, McLiechey explained that he eventually decided to tell the truth during the grand jury proceedings because Tanea McKinney had finally confessed to lying to the police. McLiechey testified that Bobby Kennedy began threatening him after he testified before the grand jury. II. Sixth Amendment Right To Counsel A. Standard Of Review Bobby Kennedy argues that he was denied his right to counsel of choice when the trial court granted the prosecutor's motion to disqualify Bobby Kennedy's attorney, N.C. Deday LaRene, on the ground that the prosecutor intended to call LaRene as a witness at trial. The prosecution argued that LaRene's testimony was necessary to show that Bobby Kennedy "took care" of witnesses by hiring lawyers for them and paying their legal fees in order to prevent them from testifying to the truth of Bobby Kennedy's role in Thomas's murder.

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Tanea McKinney was serving a 20-to-50-year sentence on a drug possession conviction.

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"We review for an abuse of discretion a trial court's exercise of discretion affecting a defendant's right to counsel of choice."6 An erroneous deprivation of a defendant's right to retained counsel of his choice is a structural error requiring reversal.7 B. Relevant Facts Sometime prior to the 2003 grand jury hearing, police interviewed McLiechey pursuant to an investigative subpoena related to the Thomas murder. An attorney named Louise E. Herrick initially represented McLiechey during the investigative subpoena proceedings. On Herrick's direction, McLiechey refused to testify at the time of the investigative subpoena. McLiechey stated that Bobby Kennedy's wife, Charlevette Kennedy, hired Herrick to represent him. McLeichey explained that upon receiving the investigative subpoena, he contacted Charlevette Kennedy because he wanted her to tell "them" that he did not know anything. But McLiechey and Charlevette Kennedy ended up discussing whether he should have legal counsel during questioning for the interview. According to McLiechey, Charlevette said that she was going to have a lawyer come see him. McLiechey stated, "Herrick said that she was paid by--she said somebody named Dee--Deday asked him something about--asked her to represent me through Charlevette, something--something like that." McLiechey stated that when he asked Herrick about money, "she said that Charlevette gave her some money." McLiechey denied knowing why Bobby Kennedy would pay a lawyer to represent him. Louise Herrick confirmed that she represented McLiechey during the investigative subpoena proceedings. Herrick testified that she agreed to represent McLiechey after her fianc

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