Preview:

STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v TUNISIA YVETTE PHILLIPS, a/k/a TUNISIA PHILLIPS-LARK, Defendant-Appellant.

UNPUBLISHED June 5, 2012

No. 300497 Muskegon Circuit Court LC No. 10-058986-FH

Before: BECKERING, P.J., and OWENS and RONAYNE KRAUSE, JJ. PER CURIAM. A jury convicted defendant Tunisia Yvette Phillips of making a false report of a felony, MCL 750.411a(1)(b). The trial court sentenced defendant to 15 months of probation, with three months to be served in jail. Defendant appeals as of right. We affirm. I. PERTINENT FACTS Trial testimony revealed that on September 23, 2009, Kameasha Wilson and defendant's brother, Julius Johnson, were visiting a friend. At about 1:00 a.m., Johnson asked Wilson to drive him home. As Wilson drove Johnson home, City of Muskegon Police Officer Adam Dent stopped Wilson for making an illegal left turn. During the traffic stop, Officer Dent smelled marijuana coming from Wilson's vehicle and called for backup. Johnson called defendant on his cellular telephone at 1:25 a.m. but could not reach her. Within a short time, Officer Charles Anderson arrived. Officer Dent approached the passenger side of Wilson's vehicle where Johnson was sitting and asked him if he had been smoking marijuana. Johnson responded affirmatively. Officer Dent asked Johnson to step out of the vehicle, and Johnson complied. Officer Dent searched Johnson and found money and a blunt wrapper. Johnson then "took off running," and Officer Anderson pursued. Officer Dent noticed crack cocaine on the ground next to Wilson's vehicle, secured Wilson in his police car, and followed Officer Anderson's pursuit of Johnson. At the time, Johnson was a parolee and could be found in violation of his parole and returned to prison for either possessing marijuana or not being at his approved residence. Officer Anderson was five feet and eight inches tall and weighed between 160 and 165 pounds. Johnson was six feet tall and weighed 240 pounds. Johnson jumped over a four-foot -1-

chain-link fence, stumbled, and fell down. Officer Anderson jumped onto Johnson and attempted to wrap his legs around him so that he could not get away. Johnson then punched Officer Anderson. Officer Anderson got his pepper spray and attempted to spray Johnson but missed. Johnson then grabbed the pepper spray and sprayed Officer Anderson. Officer Anderson's eyes began burning, and he punched Johnson. Officer Anderson grabbed his radio and yelled for help. Johnson grabbed the radio out of Officer Anderson's hand and hit Officer Anderson in the head with the radio several times. Officer Anderson got his baton and tried to hit Johnson, but Johnson grabbed the baton. Dizzy, blinded, and fearing for his life, Officer Anderson warned Johnson that he was going to shoot him. Officer Anderson then felt "a very large blow" toward the center of his forehead. Although he could not see Johnson, Officer Anderson felt Johnson on top of him. Officer Anderson drew his firearm and fired once. After firing, Johnson was no longer on top of Officer Anderson. Johnson told Officer Anderson "you shot me." Officer Anderson radioed that a shot was fired and that he needed help. Officer Dent heard the gunshot and radioed "shots fired." Officer Dent and Officer Chad Hoop located Officer Anderson and Johnson. The area was completely dark except for the officers' two flashlights. Officer Anderson was lying on his back and pointing his gun at Johnson. Officer Anderson had a very large cut in the middle of his forehead and had pepper spray on him. Blood covered his face and was in his eyes. Johnson was lying on the ground with a gunshot wound to his arm and stated that "he shot me." The Michigan State Police were called in to investigate the shooting. When Johnson was being treated at the hospital before his death, defendant approached Detective Sergeant Gary Miles of the Michigan State Police and stated that he needed to take a statement from her. Defendant told Detective Miles that she approached the scene of the shooting because she heard a commotion. She walked out her back door and heard "the police" say, "I'm going to shoot you" and that she heard her brother say, "Please don't shoot me," after which she heard a gunshot. Defendant did not mention a telephone call from Wilson. Later that day, Detective Miles interviewed defendant a second time at the scene of the shooting. During this interview, defendant stated on multiple occasions that she received a telephone call before she went outside. The phone call was from a female who was using Johnson's cell phone, and who indicated that Johnson was "in the back with police... in the alley," which defendant connected to a commotion she heard outside. Defendant went outside, and although it was very dark with no artificial lighting of any kind, she saw her brother down and the police officer over him, at which time the officer said "I'm going to shoot you," and her brother responded, "please, don't shoot me." As soon as her brother finished the sentence the officer shot him. Using information gleaned from the radio dispatches, cellular phone data, police cruiser video footage, and a neighbor's surveillance camera, the Michigan State Police constructed a timeline of the incident preceding and following the shooting. The evidence reveals that thirtyfive seconds after Officer Dent's shots-fired call, Officer Dent's police-car video shows Wilson calling defendant on Johnson's cellular telephone and stating that Johnson ran away from the police. Wilson asks, "Where he at now?" Defendant responded that she did not know. Shortly after, defendant approached the scene of the shooting in her nightgown. Officers Dent and Hoop ordered defendant to stay back, and she complied. -2-

One minute and four seconds after the shots-fired call, a video recording device attached to a private citizen's home depicts a female voice stating, "Oh my God, is that my brother, oh my God, what happened[?]" At one minute and 12 seconds after the shots-fired call, the citizen's video depicts the officers telling defendant to get back. One second later, defendant asks, "What happened to him[?]" At one minute and 16 seconds after the shots-fired call, the citizen's video shows defendant asking, "Who shot [Johnson], oh my God what is wrong[?]" And at two minutes and 24 seconds after the shots-fired call, the citizen's video depicts defendant asking, "Can anyone tell me what is going on, please?" Officer Dent treated Johnson until the paramedics arrived. Johnson did not speak with defendant. Johnson ultimately died from the contact-range gunshot wound. He had a small scrape on a finger and a blunt-force abrasion on his shoulder. His blood contained THC, and his urine indicated cocaine and opiate use within hours of his death. Officer Anderson's sinus was broken, fractured, and displaced downward. He also suffered an orbital fracture. Officer Anderson's injuries required reconstructive surgery. Detective Miles interviewed defendant a third time. Detective Miles gave defendant an opportunity to reconsider her statements because they conflicted with the evidence revealed during the investigation. Defendant maintained that she witnessed the shooting and saw the position of her brother and the officer at the time of the shooting. The police arrested defendant for making a false report of a felony. II. ANALYSIS On appeal, defendant raises numerous issues for this Court's review, and we address each accordingly. A. UNAVAILABILITY OF TRANSCRIPT AND CLOSING-ARGUMENT IMPROPRIETIES Defendant first argues that the unavailability of a transcript of the attorneys' closing arguments violates her right to due process because it impedes her right of appeal. At a post-trial hearing, the trial court admitted that it inadvertently neglected to record a portion of the attorneys' closing arguments, so no transcript could be produced. Whether the unavailability of a transcript denies a defendant the due-process right to proper appellate review is a constitutional issue subject to de novo review on appeal. See People v Jackson, 292 Mich App 583, 590; 808 NW2d 541 (2011). "[T]he inability to obtain the transcripts of criminal proceedings may so impede a defendant's right of appeal that a new trial must be ordered." People v Horton (After Remand), 105 Mich App 329, 331; 306 NW2d 500 (1981). However, "[t]he unavailability of transcripts does not . . . automatically require that the case be started all over again." People v Jackson, 95 Mich App 565, 568; 291 NW2d 123 (1980). The Michigan Court Rules address what an appellant must do when a transcript cannot be obtained. See MCR 7.210(B)(2). "When a transcript of the proceedings in the trial court or tribunal cannot be obtained from the court reporter or recorder, the appellant shall file a settled statement of facts to serve as a substitute for the transcript." MCR 7.210(B)(2). The proposed statement of facts must be filed in the trial court within 14 days after filing the claim of appeal and must concisely set forth the substance of -3-

the oral proceedings before the trial court. MCR 7.210(B)(2)(a). The appellee may file an amendment or objection to the proposed statement of facts before the time set for settlement. MCR 7.210(B)(2)(b). The trial court will then "settle any controversy and certify a statement of facts as an accurate, fair, and complete statement of the proceedings before it." MCR 7.210(B)(2)(c). Aside from the requirements of MCR 7.210(B)(2), this Court has stated that a defendant's constitutional right to an appeal is satisfied if the surviving record is sufficient to allow evaluation of the issues on appeal. People v Audison, 126 Mich App 829, 834-835; 338 NW2d 235 (1983); see also Const 1963, art 1,

Download PEOPLE OF MI V TUNISIA YVETTE PHILLIPS.pdf

Michigan Law