                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                              UNPUBLISHED
                                                              August 9, 2016
              Plaintiff-Appellee,

v                                                             No. 326028
                                                              Wayne Circuit Court
DESEANTA RODERICK THOMPKINS,                                  LC No. 14-006448-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             No. 326094
                                                              Wayne Circuit Court
LEANDER STACEY THOMPKINS,                                     LC No. 14-006424-FC

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                             No. 326095
                                                              Wayne Circuit Court
WILLIAM ROY LEE, JR.,                                         LC No. 14-006441-FC

              Defendant-Appellant.


Before: K. F. KELLY, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.

PER CURIAM.




                                           -1-
        In this consolidated appeal, defendant Deseanta Roderick Thompkins (Deseanta) appeals
as of right his jury trial conviction for first-degree premeditated murder, MCL 750.316(1)(a), for
which he received a life sentence.1 Defendant Leander Stacey Thompkins (Leander) appeals as
of right his jury trial conviction for second-degree murder, MCL 750.317, for which he was
sentenced to 25 to 45 years’ imprisonment. Defendant William Roy Lee, Jr. (Lee) appeals as of
right his jury trial conviction for first-degree premeditated murder for which he received a life
sentence. Finding no errors warranting reversal, we affirm.

                                        I. BASIC FACTS

        The twenty-five year old victim in this case, Jonathon Michael Stokes (a/k/a “Slim”), was
found shot to death near a bus stop in the City of Detroit on July 31, 2013. The victim’s
identification was found next to his body. His front pockets were turned inside out as though
someone had rummaged through his pockets and his Cartier glasses were nowhere to be found.
The victim had been shot five times – four times in the legs and once in his head; all shots were
from behind. The four bullets recovered from the victim’s body revealed that all bullets came
from the same barrel of a .38 caliber weapon.

        Defendants were charged in the victim’s murder and were tried together. Deseanta and
Leander are cousins. Deseanta was also known as “D,” “De” or “Day.” Leander was sometimes
referred to as “Le Le.” Although tried together, there were two juries – one for Leander and
another for Deseanta and Lee. At trial, it was the prosecutor’s theory that defendants were upset
with the victim and thought he was a “snitch.” In contrast, defendants argued that this was a case
of mistaken identity and that the shooter was actually Leander’s cousin, Dejuan Griffin (Griffin),
whose street name was similar to Deseanta’s – “Da Da.”

        Jeffrey Pursey testified that on the night of the murder he was on his way to a liquor store
on Seven Mile between Grand River and Telegraph to meet a friend and go to the casino. Pursey
was unable to pull into the driveway of the liquor store because there were three individuals in
the way. One individual had on dark pants and a black hoody. Another had on dark pants and a
white shirt. Pursey was not entirely sure what the third individual was wearing, but knew he was
wearing dark clothing. At trial, Pursey identified Lee as the one in the white t-shirt and Deseanta
as the one in the hoody. Pursey testified that Lee actually waved Pursey into the parking lot.
Pursey’s friend arrived within a couple of minutes. Pursey put his phone and charger on his
friend’s front seat and was planning to go into the liquor store to grab a drink when he heard five
gunshots.

       Pursey went up to Seven Mile and saw the same three individuals running toward him.
Pursey grabbed his phone from his friend’s car and dialed 911 while driving to the area. He saw
a body lying on the ground. Pursey called 911 and later gave Detective Detrick Mott a written
statement and identified Lee from a photo array as the individual who waved him into the



1
 Deseanta was also convicted and sentenced for first-degree felony murder, MCl 750.316(1)(b),
but the sentence was vacated.


                                                -2-
parking lot and the one he later saw running towards him. Pursey identified Deseanta from
another array as the individual in the black hoody.

        All three defendants attacked the credibility of Pursey’s testimony because the victim’s
family had given Pursey $12,000 before trial as a reward for his cooperation. The victim’s
mother, Dorothy Strong-Stokes, testified that she and her husband had originally put up a
$27,500 reward with Crime Stoppers, hoping to apprehend their son’s killers. Although Pursey
provided critical information in the case and had testified at several preliminary examinations,
Crime Stoppers informed Strong-Stokes that Pursey did not qualify to receive the reward
because he had not made a tip directly to them. Crime Stoppers told Strong-Stokes that if she
wanted Pursey to have the money, she would have to do it herself. They returned the Stokes’
money. Strong-Stokes testified that she felt $12,000 was a fair reward. She did not intend the
payment as a bribe for Pursey’s testimony. Pursey denied that the $12,000 influenced his
testimony at a later preliminary examination or at trial. In fact, when Pursey gave his statement
to police and positively identified Lee and Deseanta, he was unaware that there was a reward
through Crime Stoppers.

       The only witness at the bus stop the night of the murder was Castro Pettway. Pettway
saw three individuals approaching from the east. One had on a black hoody and another was
wearing a white t-shirt. They stopped about 40 feet before the bus stop and were talking
amongst themselves. They continued to approach the bus stop when the individual wearing the
hoody mentioned something to the victim about a bus and pulled out a gun. Pettway heard and
saw the first shot fired and then ran. He heard three or four more shots. Pettway waited
approximately five minutes and then went back to retrieve his bag. Pettway could not identify
the shooters at trial.

        Walter Williams was doing some maintenance in the area where the murder occurred.
He heard four gunshots in the distance. From a window, Williams could see that there was a
man on the ground and four others around him. Three of the men were kneeling down and
appeared to be going through the man’s pockets. Like Pettway, Williams could not identify any
of the individuals at trial.

       Another key witness for the prosecution was Diamond Ruff (Ruff), who testified that she
was with all three defendants the night of the shooting. Ruff testified that she had known the
victim for seven years and he was once her best friend. She knew Lee as “Will,” Deseanta as
“De” (the letter), and Leander as “Lee” or “Lee Lee.” Ruff testified that both the victim and
defendants sold marijuana.

        On the day of the murder, Ruff had been drinking Cognac since the morning. She also
had been smoking “kush,” which she described as a more “exotic” and “stronger” form of weed.
Ruff was riding around with defendants in Lee’s Yukon or Suburban. She probably “dozed off”
in the car from smoking and drinking. At approximately 10:00 p.m., Deseanta went to the store
to buy more liquor and blunts. Lee received a phone call and told the caller, “be there in a
minute.” All three defendants then got out of the car. Defendants returned after approximately
10 minutes. They seemed “hyped up” so Ruff asked them what was happening. Leander said, “I
got that n*****, I got that n*****.” In her statement to police, Ruff said that Defendant Leander


                                               -3-
Thompkins said, “I got that n*****, I got that n***** . . .I had to pop a n***** a couple of
times. That n***** got handled.”

        Ruff did not know what Leander was talking about. Defendants dropped her off at a
friend’s house. While at her friend’s house, Ruff received a call that the victim was dead. Ruff
put together a candlelight vigil, which defendants attended. Although Ruff could have contacted
the victim’s parents with information about the murder, she was scared to do so. Ruff eventually
gave Mott a statement and identified defendants from photo arrays.

        As part of his investigation, Mott went to the liquor store to see if there was useable
surveillance footage. Because the footage ran a ten hour loop, Mott had to capture the video on
his phone’s camera. Therefore, as the parties acknowledged, the footage was not good. The jury
watched the surveillance video from inside and outside the store.

       Mott testified that Lee gave police a statement on November 22, 2013. The video was
played for the Deseanta/Lee jury, only. In the statement, Lee told Mott that Leander was there at
the time of the shooting, but blamed the shooting on “Day” or “Day Day” (Griffin), who shot the
victim because “he was snitching or being an informant in the neighborhood.”

       Mott testified that Leander also made an informal statement to police on November 22,
2013 at which time Leander indicated he was with his cousin at the time of the shooting. Mott
spoke with Leander a second time on November 25, 2013. Leander denied that he was present
during the murder, but implicated his cousin, Griffin, saying “that’s the kind of person he is.”
Leander demonstrated for Mott how Griffin shot the victim. Griffin had asked Dwayne
Haywood2 to borrow a weapon, but Leander did not think Griffin was going to kill the victim.
Leander vehemently denied being part of the crime. He was released from custody shortly after
making his statement, but was later re-arrested after Mott had a chance to interview Ruff and
learned that Leander admitted to shooting the victim.

        In front of the Deseanta/Lee jury, only, Hasheem Beamon testified that, on the night of
the murder, he was with defendants, as well as Haywood, “Da Da” (Griffin) and “50.” At some
point, Leander, “Da Da” and “50” left; neither Lee nor Deseanta went with them. Shortly after
they left, Beamon heard gunshots. The men returned and Leander said that they shot someone
named “Slim.” Leander said he shot first and then “Da Da” took the gun and “finished him off.”
They told Beamon that “Slim” was a snitch: “They told me they had to kill a n*****.” Beamon
gave Mott a statement on February 19, 2014, identifying both Leander and Deseanta, but adding
that Deseanta and Lee “didn’t have s*** to do with this.”3

       Brandy Harris testified that the victim was her cousin. She was planning to pick him up
the night of the murder. In a phone call earlier that day, the victim reported that he had just had a
fight with someone who had called him a snitch. Harris remembered that one of the houses that



2
    Haywood was deceased at the time of trial.
3
    Beamon later shot and killed Haywood in what was described as an accidental shooting.


                                                 -4-
the victim frequented had been raided. Later, Harris saw that a Caucasian man had the victim’s
phone and when Harris asked the man where the victim was, he told her that the victim had gone
to the gas station. After learning that the victim had been shot, Harris went to retrieve the
victim’s phone from the Caucasian man, who threw it at her. Mott acknowledged that a white
man on Wormer, Patrick Boggs, was later arrested on unrelated charges. Mott did not believe
Boggs was connected to the homicide.

       In front of the Deseanta/Lee jury, only, Shenequia Carr (Peaches) testified that she was
with Deseanta at her house at the time of the murder. They heard shots and police sirens and
walked to where the shooting occurred. In a surveillance photo, Carr identified the man in a
hoody as “Da Da,” whom she also saw that night. Carr testified she saw Lee with Haywood a
couple of doors down. She did not see Ruff with any of the defendants.

       Although Leander, Haywood’s widow (Roslyn Haywood), Beamon, and Carr, accused
“Da Da” (Griffin) of being responsible for the crime, attempts at locating him were unsuccessful.
Mott admitted that he initially associated “Da Da” with Deseanta.

         Defendants were convicted and sentenced as outlined above.

                              II. DESEANTA’S APPEAL (326028)

                                A. DISCOVERY VIOLATIONS

        Deseanta argues that he was deprived of due process and a fair trial when the trial court
failed to grant his motion for mistrial, which was based on the prosecutor’s various Brady4
violations. We disagree.

      Defendant’s claim that he was denied due process is reviewed de novo.             People v
Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).

        “The suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Brady, 373 US at 87. In order to establish a
Brady violation, the test is whether “(1) the prosecution has suppressed evidence; (2) that is
favorable to the accused; and (3) viewed in its totality, is material.” People v Chenault, 495
Mich 142, 155; 845 NW2d 731 (2014). “Evidence is favorable to the defense when it is either
exculpatory or impeaching.” Id. at 150.         Evidence is material if “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Id. at 150, quoting United States v Bagley, 473 US 667, 682; 105 S
Ct. 3375, 87 L Ed 2d 481 (1985). “A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Chenault, 495 Mich at 150. “The question is not
whether the defendant would more likely than not have received a different verdict with the



4
    Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).


                                               -5-
evidence, but whether in its absence he received a fair trial.. . .” Kyles v Whitley, 514 US 419,
434; 115 S Ct 1555; 131 L Ed 2d 490 (1995).

        Deseanta first argues that the prosecutor failed to provide him with Leander’s recorded
police interview in which Leander inculpated Griffin and exculpated Deseanta. However, as will
be discussed in further detail later in this opinion, the evidence was inadmissible in Deseanta’s
case because Leander’s statement was not against Leander’s penal interest and lacked sufficient
corroborating evidence of trustworthiness. Because the evidence was inadmissible, it cannot be
considered material.

         Deseanta next argues that the prosecutor suppressed evidence that Pursey had received
$12,000 from the victim’s family as a “reward.” Mott testified that he learned Pursey had
received the money following the final preliminary hearing in July 2014. Mott should have
brought that information to the prosecutor’s attention prior to trial, which started several months
later in December 2014. Such evidence called into question Pursey’s credibility. Still, Deseanta
was not deprived of a fair trial. Evidence relating to the $12,000 played a significant role at trial.
All of the defendants vigorously attacked Pursey’s credibility and the jury was made fully aware
that he had been paid prior to trial.

        Finally, Deseanta complains that defense counsel was not made aware that Mott saw the
defendants pulling down Crime Stopper flyers because such information was not included in
Mott’s reports. However, as the prosecutor points out, Deseanta fails to indicate how this
evidence was favorable to him. In fact, evidence that Deseanta was seen taking down Crime
Stoppers posters seems rather incriminating. To the extent Deseanta argues that the evidence (or
lack thereof) was relevant to Mott’s overall credibility, defense counsel pursued Mott’s failure to
include the information in his reports. The jury was, therefore, apprised of Mott’s alleged lack of
credibility. There is simply no indication that the “evidence” was material to Deseanta or
deprived him of a fair trial.

                             B. RIGHT TO PRESENT A DEFENSE

        Deseanta next argues that he was deprived of the right to present a defense when the trial
court refused to allow Deseanta to introduce Leander’s statement to police. We disagree.

        “This Court . . .reviews de novo the constitutional question whether a defendant was
denied [his] constitutional right to present a defense.” People v Kurr, 253 Mich App 317, 327;
654 NW2d 651 (2002). “This Court reviews preserved evidentiary issues for an abuse of
discretion. A trial court abuses its discretion when it chooses an outcome that is outside the
range of reasonable and principled outcomes.” People v Orr, 275 Mich App 587, 588-589; 739
NW2d 385 (2007) (internal footnote omitted).

        “A criminal defendant has a right to present a defense under our state and federal
constitutions,” which necessarily includes evidence that “might influence the determination of
guilt.” People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006). Deseanta argues that his
right to present a defense was impacted when the trial court prevented him from presenting
Leander’s statement to police as evidence at trial. In Leander’s November 25, 2013 statement,



                                                 -6-
Leander implicated his cousin Griffin, indicating that Griffin had an argument with the victim,
borrowed a gun, and boasted of shooting the victim.

        Leander’s statement to police was hearsay. “ ‘Hearsay’ is a statement, other than the one
made by the defendant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” MRE 801(d). Hearsay is not admissible except as provided by the
rules of evidence. A statement against penal interest is only admissible if the declarant is
unavailable.5 MRE 804(b)(3) provides:

       A statement which was at the time of its making so far contrary to the declarant’s
       pecuniary or proprietary interest, or so far tended to subject the declarant to civil
       or criminal liability, or to render invalid a claim by the declarant against another,
       that a reasonable person in the declarant’s position would not have made the
       statement unless believing it to be true. A statement tending to expose the
       declarant to criminal liability and offered to exculpate the accused is not
       admissible unless corroborating circumstances clearly indicate the trustworthiness
       of the statement.

The trial court correctly concluded that Leander’s statement to police did not constitute a
statement against his own penal interest; instead, Leander asserted that he was merely present
when some of the discussions took place and otherwise vehemently denied any wrongdoing.
Leander’s statement did not, on its face, facially expose Leander to criminal liability.

        In any event, even if Leander’s statement could be construed as against his penal interest,
because the statement was offered to exculpate Deseanta from criminal liability, an additional
hurdle had to be cleared. As the proponent of the evidence, Deseanta had to show that
corroborating circumstances clearly indicated the trustworthiness of Leander’s statement. MRE
804(b)(3). In People v Poole, 444 Mich 151, 163; 506 NW2d 505 (1993), overruled in part by
People v Taylor, 482 Mich 368, 378; 759 NW2d 361 (2008), the Supreme Court discussed “[t]he
indicia of reliability necessary to establish that a hearsay statement has particularized guarantees
of trustworthiness” and concluded:

              In evaluating whether a statement against penal interest that inculpates a person in
       addition to the declarant bears sufficient indicia of reliability to allow it to be admitted as
       substantive evidence against the other person, courts must evaluate the circumstances
       surrounding the making of the statement as well as its content.
              The presence of the following factors would favor admission of such a statement:
       whether the statement was (1) voluntarily given, (2) made contemporaneously with the
       events referenced, (3) made to family, friends, colleagues, or confederates—that is, to
       someone to whom the declarant would likely speak the truth, and (4) uttered




5
  There is no question that Leander was unavailable, having invoked his constitutional right not
to testify.


                                                -7-
       spontaneously at the initiation of the declarant and without prompting or inquiry by the
       listener.
               On the other hand, the presence of the following factors would favor a finding of
       inadmissibility: whether the statement (1) was made to law enforcement officers or at the
       prompting or inquiry of the listener, (2) minimizes the role or responsibility of the
       declarant or shifts blame to the accomplice, (3) was made to avenge the declarant or to
       curry favor, and (4) whether the declarant had a motive to lie or distort the truth. [Id. at
       165.]
Granted, and as discussed in further detail below, Poole was subsequently partially overruled in
Taylor to the extent Poole found that the Confrontation Clause had any application to
nontestimonial statements. And Leander’s statement was not being used as substantive evidence
against another person. But the factors Poole discusses when looking to whether a statement has
sufficient indicia of trustworthiness is still helpful. Here, Leander’s statement was made to law
enforcement during an interrogation at which time Leander minimized his role and shifted blame
to Griffin. Leander had a strong motivation to lie or distort the truth and his statement was
primarily self-serving. Under those circumstances, it cannot be said that Leander’s statement to
police had sufficient corroborating circumstances indicating the trustworthiness of his statement.
The trial court, therefore, did not abuse its discretion in refusing to permit Deseanta to present
the statement to the jury.

        Although the trial court refused to permit Deseanta to present Leander’s statement to the
jury, Deseanta was not denied his right to present a defense and, in fact, placed blame for the
shooting squarely on Leander and Griffin. At trial, Beamon testified that Leander and Griffin
admitted to shooting “Slim” for being a snitch, with Leander firing the first shot and Griffin
“finishing him off.” Beamon gave Mott a statement on February 19, 2014, identifying both
Leander and Deseanta, but adding that Deseanta “didn’t have s*** to do with this.”
Additionally, in his statement to police, Lee blamed the shooting on Griffin. Deseanta was able
to present the jury with his theory that he was mistaken for Griffin based on their similar street
names. Defendant was not denied his right to present a defense.

                           C. LEANDER’S STATEMENT TO RUFF

       Deseanta next argues that the trial court erred in admitting evidence of Leander’s
statement to Ruff because Leander’s statement not only implicated himself, but also implicated
Deseanta, who was allegedly with Leander at the time the statement was made. Deseanta’s right
to confrontation were violated because he was unable to cross-examine Leander, as set forth in
Bruton v United States, 391 US 123, 127–128; 88 S Ct 1620; 20 L Ed 2d 476 (1968). We
disagree.

         “Constitutional questions, such as those concerning the right to confront witnesses at
trial, are reviewed de novo.” People v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006).

        A defendant’s Sixth Amendment right to confront the witnesses against him is violated if
the trial court allows the admission of a non-testifying codefendant’s confession implicating the
defendant at a joint trial. Bruton, 391 US at 127–128; Pipes, 475 Mich at 269. Additionally,
out-of-court testimonial statements by nontestifying witnesses are not admissible under the

                                               -8-
Confrontation Clause unless the witness is unavailable and the defendant had an opportunity to
cross-examine the witness. Crawford v Washington, 541 US 36, 51–52; 124 S Ct 1354; 156 L
Ed 2d 177 (2004); People v Nunley, 491 Mich 686, 698; 821 NW2d 642 (2012).

        However, Crawford has no application in this case because Leander’s statement was non-
testimonial in nature. “[T]he right of confrontation is concerned with a specific type of out-of-
court statement, i.e., the statements of ‘witnesses,’ those people who bear testimony against a
defendant.” People v Fackelman, 489 Mich 515, 528; 802 NW2d 552 (2011). Our United States
Supreme Court has explained:

       The text of the Confrontation Clause . . .applies to “witnesses” against the
       accused—in other words, those who “bear testimony.” 2 N. Webster, An
       American Dictionary of the English Language (1828). “Testimony,” in turn, is
       typically “[a] solemn declaration or affirmation made for the purpose of
       establishing or proving some fact.” Ibid. An accuser who makes a formal
       statement to government officers bears testimony in a sense that a person who
       makes a casual remark to an acquaintance does not. The constitutional text, like
       the history underlying the common-law right of confrontation, thus reflects an
       especially acute concern with a specific type of out-of-court statement.
       [Crawford, 541 US at 51.]6

Nor does Bruton have any application to this case because, not only was Leander’s statement
non-testimonial, but Leander did not specifically implicate Deseanta or Lee or attempt to shift
the blame for the shooting onto his codefendants. When nontestimonial hearsay is at issue, the
states are afforded the opportunity to create their own rules of admissibility. Crawford, 541 US
at 68. Thus, the relevant inquiry is whether Leander’s statement to Ruff qualifies under the rules
of evidence. The trial court found Leander’s statement admissible both as an excited utterance
and as a statement against penal interest.

       D. RUFF’S IDENTIFICATION OF DESEANTA ON SURVEILLANCE VIDEO

      Finally, Deseanta argues that the trial court also erred in allowing Ruff to identify that it
was Deseanta with others in a video. We disagree.

        Ruff testified that she had the opportunity to observe surveillance videos. The prosecutor
played the video and Ruff identified the liquor store and Lee’s vehicle in the parking lot. She
also identified Deseanta as the man inside the store, covering his face.

        The identification testimony in this case constituted lay opinion testimony. Fomby, 300
Mich App at 50. MRE 701 provides: “If the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inferences which
are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding


6
  Testimonial statements minimally include “prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and . . .police interrogations.” Id. at 68.


                                                -9-
of the witness’ testimony or the determination of a fact in issue.” In Fomby, this Court cited
federal case law that “the issue of whether the defendant in the courtroom was the person
pictured in a surveillance photo was a determination properly left to the jury.” Fomby, 300 Mich
App at 52. “[W]here a jury is as capable as anyone else of reaching a conclusion on certain
facts, it is error to permit a witness to give his own opinion or interpretation of the facts because
it invades the province of the jury.” People v Drossart, 99 Mich App 66, 80; 297 NW2d 863
(1980). In Fomby, the Court concluded that there was no reason to believe that the witness who
offered the identifying testimony was “more likely to identify correctly the person than is the
jury” and, in so doing Fomby Court acknowledged that there are times when specific
identification testimony is appropriate. Id. (internal quotation marks omitted).

        Here, Ruff testified that she was well acquainted with all of the defendants and had
known them for several months before the night of the murder. She had spent the evening with
them and was present when they were at the liquor store. Because the video was on a loop and
was in jeopardy of being taped over, Mott had to capture the images on his phone. By all
accounts, the footage was grainy and shaky. Ruff was, therefore, more likely to correctly
identify the individual in the surveillance video than the jury and did not invade the province of
the jury.

                              III. LEANDER’S APPEAL (326094)

       Leander argues that there was insufficient evidence to support his conviction.            We
disagree.

        “We review de novo a challenge on appeal to the sufficiency of the evidence.” People v
Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). “Taking the evidence in the light
most favorable to the prosecution, the question on appeal is whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421;
646 NW2d 158 (2002). “It is for the trier of fact, not the appellate court, to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded
those inferences.” Id. at 428.

        “The elements of second-degree murder are: (1) a death, (2) caused by an act of the
defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457 Mich
442, 463-64; 579 NW2d 868 (1998). At issue is whether the jury could have found that these
essential elements were proven beyond a reasonable doubt. People v Russell, 297 Mich App
707, 721; 825 NW2d 623 (2012).7



7
  Leander seems to imply that he was found guilty under the theory of aiding and abetting. The
aiding and abetting statute, MCL 767.39, provides:
       Every person concerned in the commission of an offense, whether he directly
       commits the act constituting the offense or procures, counsels, aids, or abets in its
       commission may hereafter be prosecuted, indicted, tried and on conviction shall
       be punished as if he had directly committed such offense.


                                                -10-
         There was sufficient evidence to convict Leander of second-degree murder. Ruff
testified that Defendant Leander Thompkins said, “I got that n*****, I got that n***** . . .I had
to pop a n***** a couple of times. That n***** got handled.” And, as the prosecution points
out, Leander’s statement to police placed him at the shooting. Although there were
inconsistencies, the jury was at liberty to accept or reject any of the testimony in its role as the
trier of fact. Russell, 297 Mich App at 721. It was permissible, therefore, for the jury to use
Leander’s statement to the police to place him at the shooting and reject the remainder of the
self-serving statement while accepting Ruff’s testimony that Leander admitted to shooting the
victim. Additionally, even though Pettway saw Deseanta with the gun, it is possible that
Deseanta fired the first shot and then handed the gun to Leander. A rational jury could have
inferred from the circumstances of the case that defendant caused or aided in the victim’s death.

                                  IV. LEE’S APPEAL (326095)

       Lee argues that the trial court erred in concluding that Leander’s statement to Ruff was
admissible as an excited utterance under MRE 803(2) or as a statement against penal interest
under MRE 804(b)(3). We disagree.

        MRE 803(2) provides that, regardless of whether a declarant is available, “[a] statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition” is not excluded by the hearsay rule. “The rule
allows hearsay testimony that would otherwise be excluded because it is perceived that a person
who is still under the sway of excitement precipitated by an external startling event will not have
the reflective capacity essential for fabrication so that any utterance will be spontaneous and
trustworthy.” People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998) (internal quotation
marks omitted). Therefore, when determining whether the declarant is still under the excitement
caused by the event, the relevant inquiry is “whether the statement was made before there was

Therefore, in order to be convicted under an aiding and abetting theory, the prosecution must
prove:
       (1) the crime charged was committed by the defendant or some other person; (2)
       the defendant performed acts or gave encouragement that assisted the commission
       of the crime; and (3) the defendant intended the commission of the crime or had
       knowledge that the principal intended its commission at the time that [the
       defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715
       NW2d 44 (2006).]

“The phrase ‘aids or abets’ is used to describe any type of assistance given to the perpetrator of a
crime by words or deeds that are intended to encourage, support, or incite the commission of that
crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). “In determining whether a
defendant assisted in the commission of the crime, the amount of advice, aid, or encouragement
is not material if it had the effect of inducing the commission of the crime.” Id. at 71. Whether
and to what extent a defendant acts or gives encouragement “must be determined on a case-by-
case basis.” Id.




                                               -11-
time to contrive and misrepresent, and whether it related to the circumstances of the startling
occasion.” Id. at 550-551, citing People v Straight, 430 Mich 418, 424, 424 NW2d 257 (1988).
However, “it is the lack of capacity to fabricate, not the lack of time to fabricate, that is the focus
of the excited utterance rule. The question is not strictly one of time, but of the possibility for
conscious reflection.” Smith, 456 Mich at 551. The key is whether the declarant “was still under
the influence of an overwhelming emotional condition” at the time the statement was made.
Straight, 430 Mich at 425.

        The record reveals that Leander was still under the stress of the excitement when he made
the statement to Ruff. Ruff testified that the defendants left after Lee received a telephone call
and returned after approximately 10 minutes. She noticed that defendants seemed “hyped up” so
Ruff asked them what was happening. Leander said, “I got that n*****, I got that n*****.” In
her statement to police, Ruff said that Defendant Leander Thompkins said, “I got that n*****, I
got that n***** . . .I had to pop a n***** a couple of times. That n***** got handled.” Not
only was the statement contemporaneous with the shooting, but Leander was acting under the
influence of the stress of the event, as demonstrated by Ruff’s testimony that they all seemed
“hyped up.” The trial court did not abuse its discretion when it admitted the statement as an
excited utterance.

       In contrast to an excited utterance where the availability of the declarant is irrelevant, a
statement against penal interest is only admissible if the declarant is unavailable.8 MRE
804(b)(3) provides:

       A statement which was at the time of its making so far contrary to the declarant’s
       pecuniary or proprietary interest, or so far tended to subject the declarant to civil
       or criminal liability, or to render invalid a claim by the declarant against another,
       that a reasonable person in the declarant’s position would not have made the
       statement unless believing it to be true. A statement tending to expose the
       declarant to criminal liability and offered to exculpate the accused is not
       admissible unless corroborating circumstances clearly indicate the trustworthiness
       of the statement.

A reasonable person in Leander’s position would not have admitted to having “to pop a n***** a
couple of times” because such a statement exposed Leander to criminal liability. Because
Leander’s statement was not “offered to exculpate the accused” there is no need to determine
whether “corroborating circumstances clearly indicate the trustworthiness of the statement”
under the rule.

       To the extent Lee argues that the statement violated his right to confrontation, the
Michigan Supreme Court has determined that “the holding in Poole, that a codefendant’s
nontestimonial statement is governed by both MRE 804(b)(3) and the Confrontation Clause is no
longer good law.” People v Taylor, 482 Mich 368, 378; 759 NW2d 361 (2008). Once a


8
  There is no question that Leander was unavailable, having invoked his constitutional right not
to testify.


                                                 -12-
determination is made that a declarant’s statement is nontestimonial, i.e. “made informally to an
acquaintance, not during a police interrogation or other formal proceeding . . .or under
circumstances indicating that their ‘primary purpose’ was to ‘establish or prove past events
potentially relevant to later criminal prosecution,’” the admissibility of the statement is ruled
solely by MRE 804(b)(3). Taylor, 482 Mich at 378. Leander’s statement not being testimonial
in nature, the right to confrontation was not violated and the trial court did not abuse its
discretion in admitting Leander’s statement as a statement against penal interest.

       Affirmed.

                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Michael J. Kelly
                                                           /s/ Amy Ronayne Krause




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