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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROOSEVELT PATTERSON PETTIFORD, Defendant-Appellant.

UNPUBLISHED March 3, 2009

No. 273369 Wayne Circuit Court LC No. 06-000343-01

Before: Talbot, P.J., and Bandstra and Gleicher, JJ. PER CURIAM. After a jury trial, defendant was convicted of first-degree premeditated murder, MCL 750.316(1)(a), being a felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to life imprisonment without parole for his firstdegree murder conviction, a concurrent term of 38 months' to 5 years' imprisonment for the felon in possession conviction, and a consecutive term of two years' imprisonment for the felony-firearm conviction. Defendant now appeals as of right. We affirm. I. Underlying Facts The victim, Vinson Lamont Ellington, was shot to death in Detroit on November 1, 2005. The shooting occurred between 11:30 a.m. and noon, at a gas station located near the intersection of Oakland Street and East Grand Boulevard. The victim was pumping gas when a lone assailant killed him with multiple gunshots. Chief Wayne County Medical Examiner Dr. Carl Schmidt testified that the victim endured 11 gunshot wounds, including two to his face, two in his neck, two to the back of his right shoulder, and one each to his upper chest, right lower back, right hip, right buttock, and left forearm. Schmidt opined that no evidence of close-range gunfire existed on the victim's body, and that "a high velocity weapon was used."1

The prosecutor presented several police witnesses to document the facts that the police never recovered the weapon used by the assailant, the van driven away by the assailant, or any usable fingerprints on fired casings collected at the gas station on November 1, 2005.

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Several eyewitnesses offered at trial their recollections of the November 1, 2005 shooting. Ninth-grade teacher LaDonna Morrow and one of her students, Taylor Hanserd, testified that while driving west on East Grand Boulevard toward a red traffic light, they heard three gunshots emanating from a gas station on the right side of the road. Morrow and Hanserd recounted that after Morrow stopped at the traffic light, they saw the victim pumping gas into a station wagon, and a dark green Cadillac Escalade parked on the opposite side of the gas pumps. Morrow and Hanserd similarly described that they also saw an African-American man wearing a black, hooded coat; they watched as the victim fell to the ground, the hooded man moved closer to the victim, within several feet, and continued shooting a gun at the victim,2 then ran behind the gas station and into the passenger's seat of a green 1997 Chevrolet conversion van with tan or beige stripes. Neither Morrow nor Hanserd could describe the shooter's face because his hood obscured it, and neither heard any verbal exchange between the victim and the shooter. Both Morrow and Hanserd saw an African-American woman on a sidewalk across the street from the gas station running away from it, the Escalade pull away from the station, and a white Detroit police car that had been parked at or near the gas station drive away from the scene after the shots rang out. Morrow then drove away and she or the student called 911. Evan James Nayfa testified that on November 1, 2005, he lived in a second-floor apartment across the street from, and "[j]ust east of," the East Grand Boulevard gas station where the shooting occurred. Nayfa recalled that within 15 minutes of noon, he heard three gunshots that prompted him to look out his window toward the gas station. From 30 or 40 feet away, Nayfa "saw a station wagon at the pump" nearest his vantage point, "the victim as he was falling to the ground," and "the shooter at the front of [the victim's] vehicle." According to Nayfa, the assailant, an African-American male who wore a black coat with its hood raised, "was running up towards [the victim], and he kind of stood in a stance at the front of the victim's car . . . . And I'd say from there he shot about six or seven more times" with a "very large" "automatic weapon."3 Nayfa described that the shooter then fled behind the gas station and into the driver's side of "a green conversion van" with "tan decals and a raised roof"; Nayfa disbelieved that the van contained any other occupants.4 "A couple minutes" later, Nayfa and his roommate ventured across the street, where the victim laid on the ground, silent and unmoving, and where many other people they did not know gathered around. Nayfa thereafter encountered the police and participated in a photographic lineup at the police station; Nayfa could not identify with certainty anyone as the shooter, but suggested that two of the photographs most resembled the shooter; a photograph of defendant was one of the two that Nayfa selected.5

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Morrow estimated that "altogether I may have heard nine, maybe thirteen shots," while Hanserd guessed that she heard at least six or seven.
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Nayfa estimated that the assailant approached within 8 to 10 feet of the victim, and that in total he heard 13 gunshots.

In Nayfa's estimation, the green van "was parked in behind the gas station in a way that was premeditated" because it "ha[d] been backed in behind the gas station." Nayfa's roommate, offered testimony similar to Nayfa's in most respects. Nayfa's roommate also attended a photographic lineup on November 1, 2005, but could not identify the shooter because he had worn a dark hood covering his head.
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The prosecutor presented evidence that one eyewitness to the shooting had identified defendant as the victim's assailant. Yolanda Browning testified that she had grown up in the same area of Detroit as the victim and defendant, and had known them both for at least 20 years. Browning recounted that on November 1, 2005, she lived a couple of blocks away from the East Grand Boulevard gas station, and that she had started walking toward the gas station that morning intending to meet the victim, whom she had called requesting to purchase crack cocaine. Browning conceded at trial that she had heard some gunshots while walking toward the gas station, but insisted that she had not viewed any portion of the shooting, or any people or vehicles around the gas station, because the shots prompted her to "turn[] around and r[u]n" home. At trial, however, Browning confirmed that in a statement recorded by the police on November 1, 2005, her initials appeared alongside the following details: "Roosevelt did it [the shooting]"; Roosevelt's last name was Pettiford; Browning replied affirmatively to the police question, "Did you actually see Roosevelt fire the gun?"; Browning described Roosevelt as a "[b]lack male, thirty, five nine, a hundred and seventy-five pounds, medium complexion, short Afro, light [mustache] with black marks on his face and a big ass head"; Browning had known defendant all her life, and believed he lived "[o]n Rosedale at Oakland about three or four houses off the corner with the white picket fence . . . south side of the street"; that she "saw [the victim] going back to his car from the gas station at Oakland and East Grand Boulevard"; "[t]hat's when I saw Roosevelt shoot [the victim]"; that defendant had shot the victim from "[c]lose range, he just walked up on him and started shooting"; that defendant had fired his first shot while pointing a gun "[a]t [the victim's] face. It looked like it could have been his eye"; and that she had an "open" view of the shooting from about 25 feet away because she "could see straight to the East Grand Boulevard."6 Scott Shea, a Detroit police homicide officer, testified that he participated in a November 7, 2005 follow-up interview of Browning, precipitated when a colleague of Shea's telephoned Browning to arrange the discussion. Shea recounted that he first asked Browning "if she knew the gentleman that she named in her prior statement," and that Browning responded affirmatively, without hesitation or qualification. Shea described that the officer-in-charge of the case then showed Browning a mug shot photograph of defendant and inquired (1) whether she knew "this person," to which Browning responded, "Yeah, that's Roosevelt," (2) how she knew defendant, which she answered, "We went to school together. I've been knowing him my whole life," (3) whether she saw defendant on November 1, 2005, to which she replied, "Yes," "I saw him at the gas station at Oakland and East Grand Boulevard," (4) "what did Roosevelt do[,]" which she answered, "When he shot [the victim]," (5) if she had witnessed the shooting, and Browning responded, "I saw the first shot and then I took off running," "Roosevelt was shooting and he shot [the victim]," (6) "did you see Roosevelt with a gun[,]" which she answered, "Yeah, but I don't know what type of gun it was," and (7) whether anyone had accompanied defendant at the gas station, to which she replied, "No." Shea added that Browning then reviewed the

Detroit police homicide investigator Myron Love testified that he interviewed Browning in the early afternoon of November 1, 2005, and similarly described the contents of her statement that day.

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statement he had handwritten and signed both pages. Shea denied that Browning ever had suggested to the police that she could not see the shooting clearly because she was not wearing her glasses, or that she had fabricated her summary of events to gain a measure of revenge against defendant for abusing her niece. Detroit police homicide officer David Moore also testified about his interaction with Browning approximately a week after the shooting. Moore recalled that at police headquarters he talked for about 35 or 45 minutes with Browning, who had arrived alone and voiced concern regarding her participation in defendant's case, specifically "[t]hat she had heard conversations throughout the neighborhood that she was coming down to the police station and talking too much," felt "concerned about any kind of repercussions or anything like that." According to Moore, he and Browning also discussed the November 1, 2005 shooting at headquarters, then spent five or 10 minutes together revisiting the scene of the shooting. Moore described that Browning again recounted with specificity her unequivocal observations of the shooting, including that defendant had shot the victim near the gas pumps. Moore denied that Browning thereafter reported to police any qualifications of her shooting account.7 Thomas Hill testified that he had known both the victim and defendant for more than 20 years, that they all resided in the same neighborhood, and that he had dated defendant's sister. Hill conceded that he had criminal convictions and an addiction to crack cocaine, but denied that anyone had promised him any type of leniency in exchange for his trial testimony. While incarcerated on December 12, 2005, Hill wrote and sent a letter to homicide investigators inquiring whether the victim in fact had died, and suggesting that if so, Hill might have information relevant to a police investigation; Hill specifically mentioned in the letter that during a conversation with the potential suspect, he had "asked [Hill] to hit [shoot or kill]" the victim, that Hill knew the suspect to have "drugs and [a] gun," and that Hill could provide additional information.

Multiple witnesses testified at trial concerning Browning's contact with defendant's girlfriend between her early November 2005 statements to the police and her detention as a material witness in March or April 2006. Browning repeatedly denied ever feeling influenced by defendant or his family or friends, or discussing her preliminary examination and trial testimony with defendant's girlfriend, Crystal Cowan. The prosecutor called Lora Baldwin, a 36th District Court security officer present at defendant's January 3, 2006 preliminary examination, who recounted her observations that after Browning left the witness stand at the examination, outside the courtroom she "met up with a light-skinned lady [Cowan]," who got "close to" Browning and spoke to Browning in "[a] little aggressive" tone of voice. The prosecutor also inquired of Baldwin, "And had you been in the courtroom when the Court admonished that there was to be no contact between friends and family members of the defendant and the witnesses[,]" to which Baldwin replied, "Yes, I was." The prosecutor additionally elicited testimony from Detroit police officer Anthony O'Rourke, who described that on March 22, 2006, he had gone to investigate potential witness tampering at 520 Smith Street in Detroit. O'Rourke recalled that at 520 Smith Street, he identified and spoke with Browning, who resided in the lower flat, and also identified and spoke with Cowan, who resided in the upper flat.

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When a police sergeant came to interview Hill on December 15, 2005, he first advised him that someone had killed the victim, then asked what Hill knew about the victim's shooting. Hill testified that he related to the sergeant the following details about defendant: as defendant drove him around one day past a local barber shop, they passed the victim on the sidewalk and defendant became upset and announced "I'm going to get the M.F.," mentioning in explanation only that he and the victim "had some words" and that he "had a problem with all of [the victim's crew/friends]"; defendant inquired of Hill "what if I gave you some money to hit [the victim]"; defendant also expressed, "I'm going to have that mother fucker hit or I'm going to kill him myself"; when Hill expressed disinterest in killing the victim, defendant called him a "bitch" and "a coward, and . . . started telling [Hill] how easy it was to be able to do somebody"; defendant theorized, "All you have to do is hit the [crew] leader [the victim] and the rest of them will fall." Hill recalled that he additionally told the sergeant that he had seen guns at defendant's three Detroit houses and the residence of defendant's girlfriend.8 Defendant presented two alibi witnesses. Defendant's cousin, Gloria Pettiford, testified that she and her mother went to a Detroit residence on Rosedale Street around 11:30 a.m. on November 1, 2005. Pettiford recalled that she spoke with defendant at the Rosedale residence for about 20 minutes, then at about 12:00 p.m. or 12:10 p.m., she drove defendant to a Coney Island restaurant where they had lunch. According to Pettiford, she returned defendant to the Rosedale residence at around 1:40 p.m. Pettiford acknowledged that she had told no one about defendant's alibi until a couple weeks before his trial commenced. Patricia Crenshaw, defendant's aunt, offered similar details regarding her November 1, 2005 trip to the Rosedale Street residence with her daughter, Gloria. Crenshaw specifically related that she and her daughter had spoken with defendant at the Rosedale residence for 15 or 20 minutes, that she then entered the house, and that around noon or shortly thereafter she observed out a window that her daughter drove away with defendant. Crenshaw conceded that she also failed to report her observances to either the police, prosecutor, or defense counsel until two or three weeks before trial. II. Improper Impeachment with Out-of-Court Statement of Another Defendant first contends that the trial court improperly permitted the prosecutor to question Crenshaw, defendant's aunt, about an out-of-court statement by a nontestifying witness that tended to undercut the alibi testimony of Gloria Pettiford, defendant's cousin. Defendant theorizes that the prosecutor's improper cross-examination of Crenshaw with an out-of-court

The prosecutor also played for the jury portions of several recorded telephone calls that defendant had initiated from jail after his arrest. Defendant's brief on appeal challenged the court reporter's failure to transcribe the content of the recorded jail phone calls that the prosecutor played for the jury at trial. This Court remanded the case in April 2008 for an evidentiary hearing, and instructed the trial court to "settle the record with respect to the tape recordings that were played to the jury . . . [and] see that the recordings are included with the record to be transmitted to this Court." Because defendant's appellate counsel conceded on remand that he had deemed the recorded phone call issue settled, this issue has become moot. People v Briseno, 211 Mich App 11, 17; 535 NW2d 559 (1995).

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statement by a third party occasioned several different types of error: (1) violation of defendant's due process protections and his constitutional right of confrontation because the letter's contents were testimonial, yet defendant had no opportunity to cross-examine the letter's author, Lakea Green; (2) introduction of inadmissible hearsay; and (3) the prosecutor's engagement in misconduct by questioning Crenshaw about the credibility of another witness, then employing Crenshaw's response to improperly interject Green's letter. A. Standards of Review During the prosecutor's cross-examination of Crenshaw, defense counsel initially objected to Green's letter as hearsay, and later lodged a relevance objection. This Court reviews for an abuse of discretion the trial court's rulings whether to admit evidence, but considers de novo the legal question "whether evidence is admissible under a particular rule of evidence." People v Moorer, 262 Mich App 64, 67; 683 NW2d 736 (2004). However, defense counsel did not offer a timely objection on the basis that the prosecutor's questioning infringed on defendant's right of confrontation. This claim is therefore subject to review for plain error. To avoid forfeiture under the plain error rule, three requirements must be met: (1) an error must have occurred; (2) the error must have been plain error; (3) and the plain error must have affected substantial rights, i.e., the defendant was prejudiced (the defendant generally must show that the error affected the outcome of the lower court proceedings). An appellate court must then exercise its discretion in deciding whether to reverse a defendant's conviction. Reversal is warranted only when the plain error results in a conviction of an innocent defendant or seriously affects the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. [Moorer, supra at 68.] Defendant also raises within this issue a prosecutorial misconduct assertion that he did not specifically and timely present at trial. This Court reviews properly preserved claims of prosecutorial misconduct according to the following standards: Prosecutorial misconduct issues are decided case by case, and the reviewing court must examine the pertinent portion of the record and evaluate a prosecutor's remarks in context. Prosecutors may not make a statement of fact to the jury that is unsupported by the evidence, but they are free to argue the evidence and all reasonable inferences arising from it as they relate to the theory of the case. Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial. [People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000), criticized on other grounds in Crawford v Washington, 541 US 36; 124 S Ct 1354, 1371; 158 L Ed 2d 177 (2004).] This Court reviews alleged instances of prosecutorial misconduct in context to determine whether the defendant received a fair and impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). But appellate review of improper remarks by the prosecutor is generally precluded absent an objection by defense counsel because a failure to object deprives -6-

the trial court of an opportunity to cure the alleged error. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). This Court reviews unpreserved claims of prosecutorial misconduct only for plain error that affected the defendant's substantial rights. Schutte, supra at 720. No error requiring reversal exists if a timely instruction could have cured the prejudicial effect of the prosecutor's remarks. Id. at 721. B. Hearsay Analysis Our careful review of the prosecutor's cross-examination of Crenshaw reveals that no portion of the prosecutor's inquiries about Green's letter embodied inadmissible hearsay. The prosecutor posed two inquiries of Crenshaw in which she tried to summarize the gist of Green's letter. However, neither inquiry injected much, if any specific detail from the contents of Green's letter. The prosecutor's first inquiry ("[W]ould your opinion of your daughter's truthfulness change if you knew that someone else wrote a letter to the Judge and said that they were somewhere else during the crime?") reveals virtually no detail, and its use of the nonspecific pronoun "they" leaves somewhat unclear about whom Green and the prosecutor even intend to refer. The second inquiry ("So you don't know that nobody wrote a letter to the Judge and said that they were somewhere else than what your daughter said at the time of the crime?") more successfully conveys the thrust of Green's letter. However, irrespective of the specifics contained in the questions, they do not meet the definition of "hearsay" because the prosecutor offered them, and the trial court permitted them, to impeach defendant's proffered alibi testimony, specifically Crenshaw's declaration regarding her daughter's veracity, and not "to prove the truth of the matter asserted" by Green. MRE 801(c). C. Relevance Analysis With respect to relevance, the prosecutor's abbreviated references to Green's claim of an unspecified alibi tended to reveal the potential inaccuracy of Crenshaw's declarations in the veracity of her daughter's alibi testimony, a material issue in the case. MRE 401.9 The prosecutor's inquiries premised on Green's letter thus constituted relevant evidence. D. Confrontation Clause Analysis We also find that defendant's right of confrontation claim lacks merit. A defendant has the right to be confronted with the witnesses against him or her. US Const, Am VI; Const 1963, art 1,

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