                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 24, 2018
               Plaintiff-Appellee,

v                                                                  No. 321353
                                                                   Kalamazoo Circuit Court
EDWARD CLARENCE ROSS,                                              LC No. 2012-001925-FC

               Defendant-Appellant.


                                        ON REMAND

Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

        This case returns to us on remand from the Michigan Supreme Court, which concluded
that we had erred in admitting certain testimony under the res gestae rule. The Court directed us
to People v Jackson, 498 Mich 246; 869 NW2d 253 (2015), which held that there is no res gestae
exception to MRE 404(b) and directed us to reconsider whether the challenged evidence was
admissible under MRE 404(b). We ordered supplemental briefing.1 We conclude that as to the
charges of first-degree murder and felony firearm, the evidence was both procedurally and
substantively inadmissible, it prejudiced defendant, and rose to the level of outcome
determinative. We therefore reverse defendant’s conviction of first-degree murder and felony
firearm and remand for a new trial on those charges. However, we affirm defendant’s conviction
of solicitation of murder.

                                           I. FACTS

       Defendant was charged with three crimes arising out of two different events. He was
charged with first degree murder2 and felony firearm3 for the shooting death of Jheryl Wright


1
 People v Ross, unpublished order of the Court of Appeals, entered January 22, 2018 (Docket
No. 321353).
2
    MCL 750.316(1).
3
    MCL 750.227b.



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outside a Quick Stop convenience store (“the Quick Stop shooting”). 4 He was also charged with
solicitation of murder.5 The intended victim of the murder solicitation was Ciero Farris.

       No witness could identify defendant as the Quick Stop shooter, and there was conflicting
evidence as to whether defendant’s height and weight were consistent with the very general
descriptions of the shooter given by the two eyewitnesses not called to testify. 6 Two other
witnesses offered testimony that supported the prosecution’s case. According to a police officer,
when he interviewed defendant’s sister, she told him that defendant asked her if she had heard
about the Quick Stop shooting and told her that he knew who did it.7 Far more specific was the
testimony of Adrian Travier. He testified that defendant told him that he had sought out and
killed Wright because Wright had paid him with counterfeit money in exchange for drugs.8
Travier was cross-examined at length concerning his own criminal record.

        The evidence that defendant solicited the murder of Farris rested on tape recorded
conversations between defendant and Travier made after Travier agreed to cooperate with the
police. In those conversations, the two men discussed defendant’s request that Travier kill Fiero.
Travier also testified as to similar conversations that were not recorded. The alleged reason that
defendant wanted Fiero to be killed was that he had learned that she had been questioned by the
police regarding the Quick Stop shooting and about an uncharged robbery earlier the same night
at a house on Dutton Street (“Dutton Street robbery”). The prosecution maintained that
defendant abetted the Dutton Street robbery in which a man was shot.

       At the outset of the trial, the prosecution indicated that it would introduce several
witnesses whose testimony would concern only the uncharged Dutton Street robbery. Defendant
objected pursuant to MRE 404(b). He argued that evidence about the Dutton Street robbery was
not probative of facts relevant to the actual charges, that it was character evidence, and that it
would be confusing to the jury since the prosecution planned to begin its case with a one-and-a-
half day of testimony devoted to the Dutton Street robbery, a crime defendant was not charged


4
  For convenience of the reader and to avoid repetition, we will not specifically reference the
felony firearm charge in the balance of this opinion. References to the charges arising out of the
Quick Stop shooting as well as references to the murder charge should be read to include the
felony firearm charge as well.
5
    MCL 750.157b(2).
6
  According to the police report, “Sarbjit Singh, A Quick Stop clerk, told police through an
interpreter that the shooter was ‘a 19 to 20 year old black male approximately 5’11” with an
average to skinny build.’ Mike Stanfill, who apparently witnessed the shooting from across the
street, described the shooter in two police reports ‘as a tall/skinny [black male]’ and ‘taller than
5-8, [and] thin.’ ” P v Ross, unpublished per curiam opinion of the Court of Appeals, issued June
30, 2015 (Docket No. 321353), p 3.
7
 At trial, defendant’s sister testified that she did not recall saying that her brother told her that he
knew who had committed the Quick Stop murder.
8
    Ross, unpub op at 6.



                                                  -2-
with. The trial court overruled the objection on the grounds that the Dutton Street robbery was
part of the res gestae of the crimes since it occurred the same night as the Quick Stop shooting,
and because the alleged motive for the solicitation of murder charge was defendant’s belief that
Fiero was talking to the police about the Dutton Street robbery as well as the Quick Stop
shooting. We affirmed that ruling, but the Michigan Supreme Court concluded that we had erred
in admitting the testimony under the res gestae rule. The Court directed us to People v Jackson,
498 Mich 246; 869 NW2d 253 (2015), in which it had held that there is no res gestae exception
to MRE 404(b). Accordingly, it directed us to reconsider whether that evidence was admissible
under MRE 404(b). Accordingly, we now consider whether the Dutton Street robbery evidence
was admissible under MRE 404(b) as to each of the crimes committed.

                                           II. MRE 404(b)

        Admission of evidence under MRE 404(b) has both a procedural and substantive aspect.
Procedurally, the prosecution is required to provide defendant with pretrial notice of its intent to
introduce the other-acts evidence. MRE 404(b)(2);9 People v Denson, 500 Mich 385; 902 NW2d
306 (2017). Substantively, MRE 404(b)(1) sets out the rule regarding the admission of other-
acts evidence, and provides:

                 Evidence of other crimes, wrongs, or acts is not admissible to prove the
         character of a person in order to show action in conformity therewith. It may,
         however, be admissible for other purposes, such as proof of motive, opportunity,
         intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
         or absence of mistake or accident when the same is material, whether such other
         crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
         conduct at issue in the case.

        Understanding that the Supreme Court has directed us to review the issue under MRE
404(b), we will now consider whether admission of the Dutton Street robbery evidence was
error: (a) as to the solicitation of murder charge, and (b) as to the charges arising out of the Quick
Stop shooting. We will then consider whether erroneous admission of any such evidence was
harmless error.




9
    MRE 404(b)(2) provides as follows:
                 The prosecution in a criminal case shall provide reasonable notice in
         advance of trial, or during trial if the court excuses pretrial notice on good cause
         shown, of the general nature of any such evidence it intends to introduce at trial
         and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting
         the evidence. If necessary to a determination of the admissibility of the evidence
         under this rule, the defendant shall be required to state the theory or theories of
         defense, limited only by the defendant’s privilege against self-incrimination.
         [Emphasis added.]




                                                 -3-
                              A. SOLICITATION OF MURDER

       Procedurally, the admission of the Dutton Street robbery violated MRE 404(b)(2)’s
requirement of pre-trial notice. However, it was substantively admissible to the solicitation of
murder charge because it was highly probative of the motive for the killing of Farris. According
to Travier, defendant wanted to have Farris killed because she was talking with the police about
the Dutton Street robbery, and was implicating defendant as an abettor in that crime. MRE
404(b)(1) provides that if the evidence is probative as to motive, it may be admitted.10 This is
consistent with People v VandeerVliet, 444 Mich 52, 84-87; 508 NW2d 114 (1993) and Denson,
500 Mich at 397. Therefore, the evidence was admissible under MRE 404(b)(1) to show
defendant’s motive and was not substantially more prejudicial than probative.

       Accordingly, we conclude that the Dutton Street robbery with regard to the solicitation of
murder charge was substantively admissible under MRE 404(b)(1), but procedurally defective
because of the lack of pretrial notice of intent to admit the other-acts evidence.

                              B. THE QUICK STOP SHOOTING

        The evidence about the Dutton Street robbery was, as already noted, procedurally
defective due to the lack of notice. It was also substantively inadmissible because it was
irrelevant to the Quick Stop shooting: it was not relevant to “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” MRE 404(b). Other
than occurring on the same night as the Quick Stop shooting, there was no evidence that the
Dutton Street robbery was connected to it. Farris did not have any knowledge of the Quick Stop
shooting, and was not a witness to it. She offered no testimony about the Quick Stop shooting. 11

        At the same time, the evidence about the Dutton Street robbery was prejudicial. From it,
a jury could conclude that defendant was a dangerous man of bad character, and that he was
therefore likely to have been the Quick Stop shooter regardless of any lack of evidence linking
him to that crime.12 As the Supreme Court stated in Denson, 500 Mich at 397-398:

       Far from mere technicality, this prohibition gives meaning to the central precept
       of our system of criminal justice, the presumption of innocence. This rule reflects


10
  A defendant may challenge such evidence on other grounds, however, including the argument
that its admission violates MRE 403.
11
   There was evidence that Farris had been questioned by the police about the Quick Stop
shooting as well as the Dutton Street robbery and that defendant’s motive in soliciting her
murder concerned both of these crimes. However, the fact that the Quick Stop shooting was
relevant to the solicitation of murder charge does not explain why the Dutton Street robbery was
relevant to the question of defendant’s guilt in the Quick Stop shooting.
12
   In other words, “the introduction of this evidence may have “diverted the jury from an
objective appraisal of defendant’s guilt or innocence for the crime[] charged.” People v Ullah,
216 Mich App 669, 676; 550 NW2d 568 (1996).




                                               -4-
       the fear that a jury will convict a defendant on the basis of his or her allegedly bad
       character rather than because he or she is guilty beyond reasonable doubt of the
       crimes charged. Indeed, the very danger of other-acts evidence is not that it is
       irrelevant, but, to the contrary, that using bad acts evidence can weigh too much
       with the jury and . . . so overpersuade then as to prejudge one with a bad general
       record and deny him a fair opportunity to defendant against a particular charge.
       Woven inextricably into the fabric of our jurisprudence is the principle that we try
       cases rather than persons. . . . [Quotation marks and citations omitted.]

       Accordingly, we conclude that the evidence about the Dutton Street robbery was both
procedurally and substantively inadmissible with regard to the Quick Stop shooting.

                                    C. HARMLESS ERROR

         Given our conclusions regarding the admissibility of the evidence, we must consider
whether the error constitutes harmless error as to each of the charges.13 As to the solicitation of
murder charge we conclude that it was harmless. The evidence of defendant’s guilt as to this
charge was overwhelming. The jury heard tapes of phone calls in which defendant directed
Travier to commit the murder, and discussed how to find Farris. In addition, Travier cooperated
with the police and, consistent with the tapes, testified about the solicitation made by defendant.
And defendant had a strong motive given his belief that Farris was discussing the Quick Stop
shooting (as well as the Dutton Street robbery) with the police. Therefore, despite the procedural
error of lack of notice, we conclude that had the challenged evidence been excluded it would not
have affected the jury’s deliberations as to the solicitation charge and it did not undermine the
reliability of the verdict.

        We do not, however, reach the same conclusion regarding the Quick Stop shooting. First,
admission of the evidence concerning the Dutton Street robbery was both procedurally and
substantively erroneous. In addition, the evidence about the Quick Stop shooting was far from
overwhelming. The only evidence that defendant committed the Quick Stop shooting was the
testimony of Travier in which he stated that defendant admitted to him that he had done the
Quick Stop shooting.14 As already noted, Travier was cross-examined about his own criminal
history. And unlike the solicitation of murder charge, there was no tape to demonstrate the
veracity of Travier’s testimony about this other crime. In addition, other evidence of guilt was


13
  See People v Denson, 500 Mich 385, 409; 902 NW2d 306 (2017) (applying the harmless-error
review where other-acts evidence was improperly admitted under MRE 404(b)); see also
Jackson, 498 Mich at 296, 279 (holding that the admission of other acts evidence without the
proper notice is subject to harmless error review).


14
   The testimony of defendant’s sister that defendant told her he knew the identity of the shooter
also had probative value, but even with that a jury could certainly have concluded that there was
a reasonable doubt as to defendant’s guilt.



                                                -5-
lacking. No witness identified defendant as the shooter at the Quick Stop, and the security
videotape showed the assailant only from behind. There was also evidence that defendant did
not fit the description given by the one witness who saw the assailant at the store.15 In addition,
there was no forensic evidence linking defendant to the shooting or the Quick Stop location.
Given the limited evidence as to the Quick Stop shooting, we cannot conclude that the evidence
of the Dutton Street shooting did not undermine the reliability of the verdict or affect the
outcome of the trial.

                                       III. CONCLUSION

         The evidence of the Dutton Street robbery was erroneously admitted at trial. However,
because the admission was harmless error as to the solicitation of murder charge, we affirm that
conviction. Because the admission was not harmless error as to the Quick Stop shooting, we
reverse defendant’s convictions of first degree murder and felony firearm and remand for a new
trial on these charges. We do not retain jurisdiction.



                                                            /s/ Jane M. Beckering
                                                            /s/ Jane E. Markey
                                                            /s/ Douglas B. Shapiro




15
   As we discussed in our prior opinion, there were two potential witnesses who could not be
located and who gave descriptions not clearly consistent with defendant’s appearance.



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