Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Pennington

Court of Appeals of Michigan

March 22, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
FLOYD RAY PENNINGTON, Defendant-Appellant.

          Wayne Circuit Court LC No. 14-002915-01-FC

          Before: Jansen, P.J., and Servitto and Shapiro, JJ.

          PER CURIAM.

         Defendant appeals his convictions following a bench trial of second-degree murder, MCL 750.317, [1] 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 judge.

         I. FACTS

         Defendant's 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.

         After 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.

         II. ANALYSIS

         A. PRELIMINARY EXAMINATION TRANSCRIPT

         On appeal, defendant first argues that during trial, the court improperly reviewed testimony from his preliminary examination transcript. We disagree.[2]

         During 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 9th, 2014?
[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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.