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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ANTONIO DESHAWN JENKINS, Defendant-Appellant.

UNPUBLISHED March 8, 2005

No. 250912 Wayne Circuit Court LC No. 03-005659

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MELVIN KAREEM WILLIAMS, Defendant-Appellant. No. 250913 Wayne Circuit Court LC No. 03-005659

Before: Meter, P.J., and Bandstra and Borrello, JJ. PER CURIAM. In Docket No. 250912, defendant Jenkins appeals as of right from his convictions by a jury of assault with intent to murder, MCL 750.83, felonious assault, MCL 750.82, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced him to thirteen to twenty years' imprisonment for the assault with intent to murder conviction, to a concurrent term of one to four years' imprisonment for the felonious assault conviction, and to a consecutive term of two years' imprisonment for the felony-firearm conviction. In Docket No. 250913, defendant Williams, who was tried jointly with Jenkins, appeals as of right from his convictions by a separate jury of assault with intent to do great bodily harm less than murder, MCL 750.84, possession of a firearm by a felon, MCL 750.224f, and felony-firearm. The trial court sentenced him to 34 to 120 months' imprisonment for the assault conviction, to a concurrent term of one to five years' imprisonment for the felon in possession of a firearm conviction, and to a consecutive term of two years' imprisonment for the felony-firearm conviction. We affirm in part and reverse and remand in part in Docket No. 250912. We reverse and remand in Docket No. 250913.

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All parties agree, in accordance with an affidavit signed and filed by the court reporter, that the tapes of the testimony portion of the trial have been lost and that a transcript cannot be prepared. Only the jury selection, closing arguments, verdict, and sentence were transcribed. A hearing to settle the record occurred on May 27, 2004, and two separate statements of fact were produced (one for each defendant). The two statements are largely consistent with each other. The settled statements of facts note that, at the preliminary examination, a witness, Edward Perry, testified as follows: He, Williams, and Jenkins were in Perry's cousin's house during the afternoon of April 25, 2003. An argument and struggle ensued between Perry and Jenkins. Jenkins produced a shotgun and then told Williams to "[g]et `em." Williams somehow obtained the shotgun. Eventually, Perry began to run out of the house, and Williams said, "Break yourself, dog, break yourself, n____r," while cocking the shotgun. Jenkins told Williams to shoot Perry. Perry ran, heard the firing of the gun, and realized he had been shot. The settled statements of fact, referring to testimony elicited at the May 27, 2004 hearing, indicate that the court reporter's notes referred to four witnesses who testified at trial: Perry, Officer William Niarhos, Officer Herman King, and Officer DaNeil Mitchell.1 The reporter's notes indicated that Robert Simmons, Williams' attorney, did not cross-examine these officers. The trial court's notes referred to an additional trial witness: Officer Fred Stahl. The statements of fact indicate that Simmons testified that he took "limited notes" but that "he recalled that the testimony of complainant Perry was consistent with his [preliminary examination] testimony." However, Simmons did not think that everything elicited from Perry at the preliminary examination was elicited at trial; Simmons believed there was "less testimony" at trial. Thomas Dienek, Jenkins' attorney, testified that he did not take notes during the trial and remembered "very, very little." However, he recounted that Jenkins had testified that he feared Perry, that he attempted to remove the shotgun from the house for safety purposes, and that the shotgun discharged as Perry struggled to get the gun away from Jenkins. Dienek could not recall whether the testimony of the police officers was consistent with their police reports. Simmons indicated that the officers' testimony was consistent with their preliminary complaint records. The following information was set forth, with minor stylistic differences, in both statements of fact: The preliminary complaint record of William Niarhos states that he performed a gunshot residue test on Defendant Jenkins at 8:30 p.m. [on] April 25, 2003. It does not report the results of the test. Herman King's report states that the incident occurred at or about 3:10 p.m. and was reported to the police about 20 minutes later. He was dispatched to 1714[7] Westphalia on a report of a person with a weapon. When he arrived, he observed Perry lying on the ground face up. According to King, Perry stated that he had been shot by Defendant

The settled statement of facts for Jenkins' case indicates that the court reporter's notes referred to an "Officer Daniels." However, it is apparent from context that the notes referred to "Officer DaNeil Mitchell."

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Jenkins, who lived around the corner. King went to 17146 Fairport, where he observed clothing on the front lawn. The house was empty. There was what appeared to be a shotgun blast to the ceiling, a shotgun casing on the floor and one in the street. He spoke with witnesses Valean Jordan, who stated that she witnessed Defendant Jenkins and complainant struggle over a shotgun before she ran from the house and called the police, and Sharon Williams, who stated that from the bathroom she heard two shots

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