                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 10, 2015
              Plaintiff-Appellee,

v                                                                 No. 321843
                                                                  Kent Circuit Court
BILLIE DESHAWN MCKINNEY,                                          LC No. 13-009813-FC

              Defendant-Appellant.


Before: BOONSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

       Defendant was convicted by a jury of assault with intent to murder (AWIM), MCL
750.83; possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b; and carrying a concealed weapon (CCW), MCL 750.227. He was sentenced as a
second-offense habitual offender, MCL 769.10, to concurrent terms of 27 to 50 years’
imprisonment for the AWIM conviction and 2 to 5 years’ imprisonment for the CCW conviction,
each to be served consecutive to a 2-year term of imprisonment for the felony-firearm
conviction. He now appeals his convictions by right. We affirm.

        Defendant’s convictions stem from a shooting that occurred at a house party in
Kentwood, Michigan, on the evening of July 14, 2013. On that date, Alicia Martin, a recent high
school graduate, hosted a party to celebrate her graduation. The party was held in her backyard,
where there was an above-ground pool enclosed by a deck. Martin testified at trial that she only
invited approximately 50 friends, but word of the party quickly spread to others and by 10:00 or
11:00 p.m., there were approximately 150 people at the house. According to multiple witnesses,
among the partygoers was a group of individuals known to be associated with a local gang called
“Bouldercrest.”

       Multiple witnesses testified at defendant’s trial. While each witness’s account of the
events varied slightly, the majority consistently testified that around 11:30 p.m., a group of
between six and ten individuals arrived at the party and entered the backyard. Included in this
group was defendant. According to multiple witnesses, several of these individuals, including
defendant, were associated with the “Bemis” gang, another local gang and a rival of the
“Bouldercrest” gang. From the moment the “Bemis” gang entered the backyard, there was
“conflict.” According to various witnesses, members from the “Bemis” gang, who were then
standing near the stairs to the pool deck, began yelling at members of the “Bouldercrest” gang,

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who were standing on the deck. At some point, defendant was punched and fell to the ground.
A fight then ensued between defendant and other members of his gang and members of the
“Bouldercrest” gang. During the fight, gunshots erupted on the pool deck. Several people were
injured, including two members of the “Bouldercrest” gang and an innocent bystander.

        Witness identifications of the shooter varied; however, several witnesses recalled that the
shooter was wearing an orange, “orangish,” or “bright” shirt, which matched the description of
the shirt defendant was wearing that night. Moreover, at least one witness identified the shooter
as the same individual who had earlier been punched. Finally, several witnesses specifically
identified defendant as the shooter. As a result of eyewitness identifications, defendant was
eventually arrested. While in the Kent County jail, defendant made incriminating statements
about the shooting to a fellow inmate, Jacqte Beal, some of which were recorded by Beal while
he was wearing a recording device. Specifically, among other things, defendant admitted being
one of two shooters and identified the type of weapon he used. Defendant also elicited Beal’s
help in sending a letter to defendant’s girlfriend, Sierra Wyant, in which he asked Wyant to
provide an alibi for defendant. The letter, along with portions of the recorded conversation
between defendant and Beal, were admitted at defendant’s trial.

        On appeal, defendant first argues that the prosecution committed misconduct when it
threatened witnesses with perjury charges and in some instances actually charged witnesses with
perjury. We review this unpreserved claim of prosecutorial misconduct for plain error affecting
defendant’s substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
A plain error affects a defendant’s substantial rights when it affects the outcome of the
proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The test for
prosecutorial misconduct is whether a defendant was denied a fair and impartial trial.” Brown,
279 Mich App at 134. Encompassed within a criminal defendant’s right to due process is the
right to present witnesses in defense of the charges. People v Hooper, 157 Mich App 669, 675;
403 NW2d 605 (1987). As such, a prosecutor may not intimidate witnesses, either in or out of
court. People v Clark, 172 Mich App 407, 409; 432 NW2d 726 (1988), citing People v Pena,
383 Mich 402, 406; 175 NW2d 767 (1970). Threats from law enforcement officers may be
attributed to the prosecution. People v Stacy, 193 Mich App 19, 25; 484 NW2d 675 (1992).

         The record reveals that there was a general unwillingness on the part of many witnesses
to fully cooperate with the police and the prosecution, either because they were involved in the
incident, had loyalties to the persons involved, or feared repercussions from “snitching” on gang
members. As such, police had a difficult time interviewing the witnesses, which resulted in the
decision to hold an investigative subpoena hearing. More than 20 witnesses were subpoenaed
for the hearing and testified under oath. Each witness was informed at the investigative
subpoena hearing that false testimony could result in a perjury charge. The record also reveals
that several of the witnesses were later subpoenaed to compel their appearance at the preliminary
examination. Likewise, many of the witnesses were subpoenaed to compel their appearance at
trial, and some witnesses were even incarcerated on material witness warrants to compel their
appearance at trial. Three witnesses testified at trial that they were ultimately charged with
perjury in connection with their testimony under oath at either the subpoena hearing or the
preliminary examination.



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        At the outset, defendant does not appear to argue, and there is no authority to support,
that the investigators’ mere act of convening an investigative subpoena hearing was improper.
To the contrary, such proceedings are lawful. See MCL 767A.1 et seq. Likewise, defendant
concedes that it was not improper for the investigators to inform each of the witnesses that false
testimony at the investigative subpoena hearing could result in perjury charges. See MCL
767A.9; People v Layher, 238 Mich App 573, 587; 607 NW2d 91 (1999); People v Robbins, 131
Mich App 429, 439; 346 NW2d 333 (1984). Finally, defendant does not appear to argue, and
there is no authority to support, that the prosecution’s acts of subpoenaing several witnesses for
the preliminary examination and trial, or of obtaining material witness warrants to compel
several witnesses’ appearance at trial, were in any way improper. To the contrary, these are also
lawful methods of furthering the truth-seeking function of the judicial process. See MCL
767.40a; MCL 767.35. Instead, defendant’s claim is limited to his argument that the prosecution
committed misconduct when it singled out one defense witness, Leontae Craig, to more
emphatically threaten with perjury charges than the other witnesses, causing him to not testify.

         The record does not support the first portion of defendant’s argument. Two detectives
testified that they treated Craig the same as the other witnesses that they interviewed. One
detective did acknowledge telling Craig during the interview that he did not believe his story and
that “if we were able to prove his statements were false, that he could be charged with perjury,”
which could carry a maximum sentence of life imprisonment given the nature of the case. See
MCL 767A.9(1)(b), providing that the punishment for a false statement under oath “made during
the investigation of a crime punishable by imprisonment for life, by imprisonment for life or for
any term of years.” Although the defense subpoenaed Craig to testify at trial, nothing in the
record establishes that it was not Craig’s free and voluntary choice to not testify. Robbins, 131
Mich App at 440. The detective did nothing improper by telling Craig during the interview that
the detective believed Craig’s statements were untrue and that if the witness lied while testifying,
and the police could prove that the testimony was untrue, the witness could be charged with
perjury. We conclude this truthful admonition regarding the possibility of perjury charges falls
within the general rule that “a prosecutor [here, the police] may inform a witness that false
testimony could result in a perjury charge.” Layher, 238 Mich App at 587.

         Defendant bases his argument to the contrary on Webb v Texas, 409 US 95, 97-98; 93 S
Ct 351; 34 L Ed 2d 330 (1972). The facts of this present case, however, are far different from
those in Webb, where it was the trial judge who “gratuitously singled out [the sole defense]
witness for a lengthy admonition on the dangers of perjury.” Webb, 409 US at 97. Given the
trial judge’s powerful position over the witness and his strong language, the Court found that the
judge’s remarks “could well have exerted such duress on the witness’ mind as to preclude him
from making a free and voluntary choice whether or not to testify.” Id. at 98. Thus, the Court
concluded that “the judge’s threatening remarks, directed only at the single witness for the
defense, effectively drove that witness off the stand, and thus deprived the petitioner of due
process of law under the Fourteenth Amendment.” Id. The present case is not at all like Webb.
Here, Craig was not a lone witness but one of many witnesses, several of whom were
uncooperative with the police and provided untruthful statements. Further, the police did not
occupy a position of immediate power over Craig regarding his testimony as did the judge in
Webb. Moreover, the police here couched an admonition regarding perjury tentatively, stating
that “if we were able to prove his statements were false that he could be charged with perjury . . .


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.” Thus, we reject defendant’s argument that the present case is analogous to, or controlled by
Webb.

        Defendant also relies on our Supreme Court’s opinion in Pena, and this Court’s opinion
in Stacy. In Pena, the prosecutor sent a letter to each of the defendant’s three listed alibi
witnesses a week before trial that quoted Michigan’s perjury statute. Pena, 383 Mich at 405.
Two of the defense witnesses testified at trial in support of the defendant’s alibi; the prosecutor
called the third witness who professed lack of memory regarding the pertinent time. Id. at 407.
Three justices would have held that reversal of the defendant’s conviction was required by the
prosecution’s intimidating tactic because “[a] prosecutor may impeach a witness in court but he
may not intimidate him—in or out of court.” Id. at 406. A majority of the Court, however,
merely remanded the case to the trial court for its determination whether, in fact, “the
prosecutor’s letter did intimidate the witnesses.” Id. at 407-408. If no witness intimidation
occurred, the trial court was directed to deny the defendant’s motion for a new trial.1 Id.
Subsequently, this Court held in Layher, 238 Mich App at 587, which applies to this case, that “a
prosecutor may inform a witness that false testimony could result in a perjury charge.”

        This Court’s opinion in Stacy also does not assist defendant’s argument. In that case, the
defendant argued that the police used the threat of prosecution to gain the cooperative testimony
of a key witness, the defendant’s girlfriend. Stacy, 193 Mich App at 25-27. The Court held that
the unpreserved claim of error did not warrant relief because the jury was presented with
evidence of the police statements to the witness and had the opportunity to assess the witness’s
credibility. Id. at 27-28. Under these circumstances, the Court concluded that manifest injustice
had not occurred. Id. at 30. Similarly, in the present case, the jury heard testimony regarding the
police contacts with Craig and other witnesses; therefore, it could both judge the credibility of
the witnesses and weigh the investigative tactics of the police when assessing the overall strength
prosecution’s case. Thus, as in Stacy, we cannot conclude that Craig’s absence at trial prejudiced
defendant.

        Furthermore, to establish prejudice regarding this unpreserved claim, defendant is
required to show “that the error affected the outcome of the lower court proceedings.” Carines,
460 Mich at 763. In this case, Craig did not testify at any stage of the prosecution, and the
substance of his statements during his interview with the police was not divulged to the jury. So
it is not apparent from the lower court record whether Craig would have in fact testified
favorably to defendant. Moreover, defendant has not provided anything to this Court, such as an
affidavit, indicating what the substance of Craig’s testimony would have been. Without a record
of Craig’s potential testimony, it is impossible to conclude that the outcome of defendant’s trial
would have been different. See People v Davis, 250 Mich App 357, 369; 649 NW2d 94 (2002).



1
  “The clear rule in Michigan is that a majority of the Court must agree on a ground for decision
in order to make that binding precedent for future cases. If there is merely a majority for a
particular result, then the parties to the case are bound by the judgment but the case is not
authority beyond the immediate parties.” Spectrum Health Hosps v Farm Bureau Mut Ins Co,
492 Mich 503, 535; 821 NW2d 117 (2012) (citations mitted).


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Even assuming for the sake of the argument that Craig would have testified favorably for
defendant, defendant cannot establish that the outcome of the trial would have been different in
light of the overwhelming evidence supporting defendant’s convictions. Carines, 460 Mich at
763-764.

        With respect to the second portion of defendant’s argument about the witnesses charged
with perjury, we are not convinced that the witness’s trial testimony resulted from improper
intimidation. The record reveals that a total of three individuals were charged with perjury
stemming from their testimony either at the preliminary examination or the investigative
subpoena hearing. The prosecution elicited this information, as well as the basis for the charges,
from each of the witnesses at trial. Still, there was no indication that any of the witnesses were
intimidated by those charges into testifying. And, at no time did the prosecutor attempt to bolster
the witness’s credibility by suggesting that the witnesses were now telling the truth or by
indicating that the perjury charges would be dropped in exchange for their testimony. In any
event, the other evidence in the case was more than sufficient to support defendant’s convictions,
and the alleged intimidation therefore did not affect the outcome of defendant’s case.

        Defendant next argues that the trial court erred in allowing the admission of audio
recordings of the conversation he had with Beal while in jail. We disagree. We review a trial
court’s decision whether to admit evidence for an abuse of discretion. People v Lukity, 460 Mich
484, 488; 596 NW2d 607 (1999). “A trial court abuses its discretion when its decision falls
outside the range of reasonable and principled outcomes.” People v Duncan, 494 Mich 713,
722-723; 835 NW2d 399 (2013).

         As at trial, the basis for defendant’s challenge to the audio recordings is that the
recordings were of poor quality, difficult to understand, and unintelligible at times. The trial
court acknowledged as much after reviewing the recordings. Nonetheless, the trial court
identified parts of the recordings where defendant could be heard making “potentially
incriminating statements,” such that the jury should be allowed to hear them. Based on our
independent review of the recordings, we cannot conclude that the trial court abused its
discretion. While the tapes were not of the best quality and contained unintelligible portions,
they were not so unintelligible as to be inadmissible as a matter of law. See People v Karalia, 35
Mich App 541, 545-546; 192 NW2d 676 (1971); People v Frison, 25 Mich App 146, 147-148;
181 NW2d 75 (1970). Moreover, we note that in allowing the recordings to be played, the trial
court carefully instructed the jury to use its independent judgment as to the value of the
recordings and to disregard them if it found them to be of little value. We also note that Beal
testified at trial and personally recalled some of the incriminating statements defendant made,
thereby further authenticating the recordings.

        Defendant next argues in his brief filed in propria persona that the trial court lacked
subject matter jurisdiction over him because the complaint and warrant were defective. We
disagree. Subject matter jurisdiction refers to a court’s right to exercise judicial power over a
class of cases, and is not dependent on the particular facts of the case. People v Kiyoshk, 493
Mich 923; 825 NW2d 56 (2013). Circuit courts are courts of general jurisdiction and have
subject matter jurisdiction over all felony cases. People v Goecke, 457 Mich 442, 458; 579
NW2d 868 (1998). In this case, the lower court record contains an information charging
defendant with three felonies, which was filed after the preliminary examination. The circuit

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court acquired subject matter jurisdiction over defendant’s case when the district court filed in
the circuit court the return of examination, MCR 6.110(G). Goecke, 457 Mich at 458-459. To
the extent defendant argues that the trial court lacked personal jurisdiction over him, he has
waived such a challenge by appearing before the trial court and waiving his arraignment. See
Kiyoshk, 493 Mich at 924; People v Lown, 488 Mich 242, 268; 794 NW2d 9 (2011).

        Next, defendant argues that the district court magistrate lacked probable cause to issue an
arrest warrant because the complaint was defective because probable cause itself was lacking,
and the warrant was defective because it was never “returned.” We review these unpreserved
claims for plain error affecting defendant’s substantial rights. Carines, 460 Mich at 763.

        At the outset, defendant’s argument that the district court could not issue an arrest
warrant because the complaint was defective lacks merit. The complaint, submitted with the
arrest warrant and an affidavit of probable cause, listed the charged offenses, the statutory
citations for the charges, and the factual predicate for the charges. The affidavit more
specifically set forth this information. Each of these documents was sworn to before the
magistrate. The complaint therefore satisfied the basic requirements of MCR 6.101(A).
Likewise, the magistrate’s probable cause finding was not erroneous. A finding of probable
cause on a complaint is proper where the complaint and supporting facts are sufficient to enable
the magistrate “to make the judgment that the charges are not capricious and are sufficiently
supported to justify bringing into play further steps of the criminal process.” Jaben v United
States, 381 US 214, 224-225; 85 S Ct 1365; 14 L Ed 2d 345 (1965). The standard of probable
cause to support an arrest “looks only to the probability that the person committed the crime as
established at the time of arrest” without regard to whether the prosecution can ultimately prove
guilt at trial. People v Cohen, 294 Mich App 70, 76; 816 NW2d 474 (2011) (citation omitted).
Based on our review of the complaint and affidavit, the magistrate had more than enough
information to find probable cause that the offenses were committed and probable cause to
believe that defendant committed them. Finally, while defendant correctly argues that the
warrant was never “returned,” as required by MCL 764.1b and MCR 6.102(E), defendant was
not prejudiced by this error. Carines, 460 Mich at 763.

       We affirm.

                                                            /s/ Mark T. Boonstra
                                                            /s/ William B. Murphy
                                                            /s/ Jane E. Markey




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