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People v. Everett

Court of Appeals of Michigan

January 17, 2017

DONNIE EVERETT, Defendant-Appellant.

         Wayne Circuit Court LC No. 15-001383-FC

          Before: Talbot, C.J., and Jansen and Hoekstra, JJ.

          Per Curiam.

         A jury convicted defendant of second-degree murder, MCL 750.317, three counts of assault with intent to commit murder (AWIM), MCL 750.83, two counts of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a second-offense habitual offender, MCL 769.10, to 40 to 60 years' imprisonment for the second-degree murder conviction, 18 to 30 years' imprisonment for each AWIM conviction, 3 to 15 years' imprisonment for each AWIGBH conviction, and 3 to 7 years' imprisonment for the felon-in-possession conviction, and a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of right. For the reasons explained in this opinion, we affirm.

         Defendant stood trial for the shooting death of three-year-old Amiracle Williams, the nonfatal shooting of Frieda Tiggs, Demetrius Williams, and Tkira Steen, and assaults on Chinetta Williams and Johnetta Williams. The shootings stemmed from an argument between teenaged Johnetta and her former friend, Lashay Davis. On the day of the shooting, Lashay and several of her supporters arrived at a home occupied by Amiracle and her family. Lashay and Johnetta then engaged in a physical altercation outside the house, which escalated to the point that several young men and women joined in the fray. Eventually, multiple gunshots were fired.

         According to the evidence, defendant brought a gun to the scene and he fired several shots, including shots at the house occupied by Amiracle, Demetrius, and Tkira. He also fired directly at Frieda while she lay on the ground and defendant fired in the direction of Chinetta and Johnetta while they were outside the home. Amiracle was tragically shot and killed during these events, and Demetrius, Tkira, and Frieda all suffered gunshot wounds. After the shooting, defendant fled the scene with others, he stated that he shot "the momma and the daughter, " and he gave a backpack containing his gun to a neighbor. Given evidence that others at the scene also fired shots, the prosecutor presented alternative theories based on defendant's guilt as either a principal or an aider or abettor. The jury convicted defendant as noted above. Defendant now appeals as of right.


         Defendant first argues that the trial court abused its discretion when it granted the prosecutor's request to dismiss a witness detainer for defendant's girlfriend, Brittany Dawning, who was also present at the scene of the shooting. More fully, defendant argues that Dawning was an endorsed witness that the prosecutor was obligated to produce for trial pursuant to MCL 767.40a(3). At a minimum, defendant contends that, if the prosecutor could not produce Dawning, the trial court should have given a missing witness instruction. In contrast, the prosecutor maintains on appeal that Dawning was an "and/or, " i.e., "an alternative witness, meaning that the prosecutor never guaranteed she would be called." Because she was not "expressly" endorsed, the prosecutor maintains-and the trial court agreed-that Dawning could be removed from the witness list without a showing of good cause. Alternatively, the prosecutor argues on appeal that there was good cause for deleting Dawning from the witness list and that, in any event, defendant is not entitled to relief on appeal because he has not shown prejudice.


         We review a trial court's decision to permit the prosecutor to add or delete witnesses for an abuse of discretion. People v Callon, 256 Mich.App. 312, 326; 662 N.W.2d 501 (2003). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008). A trial court necessarily abuses its discretion when it makes an error of law. People v Al-Shara, 311 Mich.App. 560, 566; 876 N.W.2d 826 (2015). An abuse of discretion may also occur when a trial court "operates within an incorrect legal framework." People v Hine, 467 Mich. 242, 250-251; 650 N.W.2d 659 (2002).

         In comparison, statutory interpretation presents a question of law that this Court reviews de novo. People v Steele, 283 Mich.App. 472, 482; 769 N.W.2d 256 (2009). "Our purpose when interpreting a statute is to determine and give effect to the Legislature's intent." People v Armstrong, 305 Mich.App. 230, 243; 851 N.W.2d 856 (2014). "We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed-no further judicial construction is required or permitted, and the statute must be enforced as written." People v Barrera, 278 Mich.App. 730, 736; 752 N.W.2d 485 (2008) (citation omitted).

         B. ANALYSIS

         The prosecutor's obligation to identify and produce witnesses is governed by MCL 767.40a, which, in relevant part, states:

(1) The prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.
(2) The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become known.
(3)Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting ...

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