Circuit Court LC No. 14-002915-01-FC
Before: Jansen, P.J., and Servitto and Shapiro, JJ.
appeals his convictions following a bench trial of
second-degree murder, MCL 750.317,  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.
Defendant was sentenced as a second-offense habitual
offender, MCL 769.11, to concurrent prison terms of 46 years
and eight months to 56 years for the second-degree murder
conviction and one to five years for the felon-in-possession
conviction, to be served consecutive to a five-year term of
imprisonment for the felony-firearm conviction. For the
reasons set forth in this opinion, we affirm defendant's
convictions, but remand for resentencing before a different
convictions arose from the December 24, 2013 shooting death
of the victim, James Buckman, Jr., in the driveway of Great
Lakes Power & Equipment (Great Lakes). It is undisputed
that defendant shot the victim during a verbal altercation,
causing his death. A witness, Mark Mosed, testified that at
the time that the victim was shot, he saw defendant pointing
a gun out of the window of his truck. Mosed removed the gun
from defendant's hand, but then gave the gun back to
defendant, and told him to leave. Another witness, Robert
Okun, observed the escalating verbal altercation between
defendant and the victim. Okun thought that he heard
defendant threaten the victim by saying, "I will kill
you, if you touch my dog." Okun denied hearing the
victim threaten defendant, but testified that he heard the
victim call defendant a "white trash hillbilly."
Although Okun did not see defendant's reaction to the
slur, he testified that he heard two gunshots thereafter.
defendant's arrest, he gave a statement to the police
claiming that he shot the victim because the victim was
coming at him with a gun. A surveillance camera located on
Great Lakes's property captured much of the encounter,
and defendant's statement was inconsistent with the
events depicted in the video. It revealed that at the time
the victim was shot, he was standing with his arms at his
side, and had nothing in his hands. At trial, defendant
asserted that the evidence established that he acted in
self-defense. Alternatively, defendant argued that, at most,
he was guilty of voluntary manslaughter. The trial court
rejected defendant's self-defense theory, and found him
guilty of second-degree murder and the firearm charges.
PRELIMINARY EXAMINATION TRANSCRIPT
appeal, defendant first argues that during trial, the court
improperly reviewed testimony from his preliminary
examination transcript. We disagree.
trial, the prosecutor attempted to impeach Mosed with
inconsistent testimony he gave at defendant's preliminary
examination with regard to the distance between defendant and
the victim before the shooting. The following exchange
occurred on the record:
The Court: Hold on. One moment.
Mr. Anderson: Yes, Judge.
The Court: They have this thing now where they
don't put preliminary exam transcripts in the file. So I
don't have preliminary exam transcripts readily
available. I'll get it hold on. I just have to log into
the computer. So just give me one moment.
* * *
The Court: You may continue.
(By Mr. Anderson):
[Mr. Anderson]. Do you recall testifying at the
preliminary examination that was held on April
[Mosed]. Yes, sir.
[Mr. Anderson]. In front of the Honorable Judge
Joseph Baltimore in this building?
[Mosed]. Yes, sir.
[Mr. Anderson]. Okay, and do you recall being asked