Preview:

STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KEVIN LONELL HARRINGTON, Defendant-Appellant.

UNPUBLISHED March 20, 2008

No. 272939 Wayne Circuit Court LC No. 02-013495-01

Before: Meter, P.J., and Sawyer and Wilder, JJ. PER CURIAM. Defendant was convicted by a jury of first-degree premeditated murder, MCL 750.316(1)(a), and he was sentenced to life imprisonment without parole. He appeals as of right. We affirm. Defendant's conviction arises from the fatal shooting of Michael Martin, whose body was discovered in a field near an apartment complex where he lived. Martin died from two gunshot wounds, one to the abdomen and one to his head. Defendant allegedly committed the offense along with codefendant George Clark. At trial, the prosecution's principal witness, Bearia Stewart, a resident of the apartment complex where the victim was killed, denied witnessing the shooting or hearing any gunshots. Stewart admitted, however, that she previously testified at defendant's and Clark's preliminary examinations that she saw defendant and Clark arguing and fighting with the victim about money and drugs, after which Clark dragged the victim into the field behind the apartment complex, and then she heard three or four gunshots. At trial, Stewart claimed that the police threatened her if she would not cooperate and forced her to testify at the preliminary examinations. However, the prosecution also introduced evidence that Stewart was threatened by defendant and others associated with this case. Defendant first argues that the trial court erred in denying his motion for a new trial on the basis of juror misconduct. In support of his motion, defendant submitted affidavits indicating that a juror failed to reveal during voir dire that she had a nephew who had pending criminal charges in a case assigned to the same judge who presided over defendant's trial and also failed to reveal that she had a relative who had been killed by a drunk driver.

-1-


This Court reviews a trial court's decision denying a defendant's motion for a new trial for an abuse of discretion. People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000). "To be entitled to a new trial on the basis of juror misconduct, defendant must `establish (1) that he was actually prejudiced by the presence of the juror in question or (2) that the juror was properly excusable for cause.' " Id., quoting People v Daoust, 228 Mich App 1, 9 n 3; 577 NW2d 179 (1998). In Daoust, this Court stated that this test does not apply in situations where it is discovered that a juror lied during voir dire. However, this Court has viewed that statement as dicta and defendant relies only on a dissenting opinion in support of his argument that Daoust governs this case. See People v Benny Johnson, Jr, 245 Mich App 243, 267; 631 NW2d 1 (2001) (Whitbeck, J., dissenting). In People v Fetterley, 229 Mich App 511, 545; 583 NW2d 199 (1998), this Court held that in order for a defendant to be entitled to a new trial due to juror misconduct, "[p]rejudice must be shown, or facts clearly establishing the inference that it occurred from what was said or done." In People v Nick, 360 Mich 219, 230; 103 NW2d 435 (1960), the Court quoted 39 Am Jur, New Trial,

Download PEOPLE OF MI V KEVIN LONELL HARRINGTON.pdf

Michigan Law