* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 9, 2004
v No. 246794
Wayne Circuit Court
WILLIAM CHRISTOPHER BROWN,
LC No. 02-007688
Before: Cavanagh, P.J., and Kelly and H Hood*, JJ.
Defendant appeals as of right his jury trial convictions for first-degree felony murder,
MCL 750.316(1)(b), and conspiracy to assault with intent to rob while armed, MCL 750.89.
Defendant was sentenced to life in prison without the possibility of parole for the first-degree
murder conviction and to twenty to thirty years? imprisonment for the conspiracy to assault with
intent to rob while armed conviction. We affirm in part and vacate in part.
Defendant was with Jeffrey Strickland and Tyrone Davenport in Detroit on August 10,
2001. There was a discussion about robbing someone to get money, and Strickland noticed that
Davenport had a gun. Davenport saw a taxi, flagged it down, and demanded money from the
driver. When the driver refused, Davenport shot him once in the head, killing him. Davenport
and Strickland entered into plea agreements with the prosecution.
Defendant first argues that the trial court erred when it allowed testimony of Strickland?s
plea agreement. Because defense counsel failed to object to this testimony, the issue is
unpreserved and will be reviewed for plain error that affected defendant?s substantial rights.
People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003). ?Reversal is warranted only when
the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when
an error seriously affected the fairness, integrity, or public reputation of the judicial proceedings
independent of the defendant’s innocence.? Id.
In general, ?all relevant evidence is admissible[.]? MRE 402. However, it may
nevertheless be excluded ?if its probative value is substantially outweighed by the danger of
unfair prejudice[.]? MRE 403. Therefore, we must determine whether the evidence of
Strickland?s plea is unfairly prejudicial. ?After all, presumably all the evidence presented by the
prosecutor was prejudicial because it attempted to prove that defendant committed the crime
charged.? People v Pickens, 446 Mich 298, 336; 521 NW2d 797 (1994). Unfairly prejudicial
evidence is not evidence that is merely damaging, but rather evidence that is likely to be given
disproportionate weight by the jury or evidence that cannot be equitably used by its proponent.
People v Mills, 450 Mich 61, 75-76; 537 NW2d 909 (1995).
The Michigan Supreme Court has ruled that evidence of an accomplice?s conviction by
trial is unfairly prejudicial. People v Lytal, 415 Mich 603, 612; 329 NW2d 738 (1982). This
Court, however, has adopted the reasoning of the plurality in People v Standifer, 425 Mich 543;
390 NW2d 632 (1986), and held that a prosecutor may question an accomplice about a guilty
plea and a plea agreement, but not a guilty conviction by trial. People v Dowdy, 211 Mich App
562, 571; 536 NW2d 794 (1995). In Dowdy, the defendant did not object to the admission of the
evidence of the plea agreement, and defense counsel used the plea agreement during cross-
examination to question the accomplice?s credibility. Id. at 571-572. This Court reasoned that
?[w]e will not allow a defendant to use the plea information to undermine the accomplice?s
credibility at trial, and then allow him to argue on appeal that introduction of the evidence of the
plea was prejudicial.? Id. Similarly, defense counsel in the instant case failed to object to
admission of the evidence of Strickland?s plea agreement, and, indeed, defense counsel used it to
attack Strickland?s credibility during his closing argument. As we held in Dowdy, defendant
may not make use of the evidence and then claim that he was prejudiced thereby.
Defendant next argues that his conviction for felony murder and for the underlying felony
of conspiracy violated his right against double jeopardy. We review de novo a potential
violation of the Double Jeopardy Clause. People v Nutt, 469 Mich 565, 573; 677 NW2d 1
Both the United States and Michigan constitutions contain a Double Jeopardy Clause.
US Const, Am V; Const 1963, art 1, § 15. Among other protections is a right ?against multiple
punishments for the same offense.? Nutt, supra at 574. A sentence for both felony murder and
for the underlying predicate crime violates this protection. People v Harding, 443 Mich 693,
712; 506 NW2d 482 (1993). The prosecution concedes that conspiracy to assault with intent to
rob while armed is the predicate crime of defendant?s felony-murder charge. Because defendant
received a sentence for both, his sentence for the conspiracy conviction, which was the predicate
felony, must be vacated. People v Bigelow, 229 Mich App 218, 221-222; 581 NW2d 744
Defendant finally argues that the trial court erred when it refused to allow the jury to
review certain testimony. Because defendant failed to object to the trial court?s decision
regarding the reviewing of testimony, this issue is unpreserved and will be reviewed for plain
error that affected defendant?s substantial rights. Jones, supra at 355.
Pursuant to MCR 6.414(H), a trial court may refuse an unreasonable request to review
testimony, but it may not refuse a reasonable request. A trial court may order a jury to continue
deliberating without reviewing requested testimony if the possibility of reviewing the testimony
later is not foreclosed. People v Howe, 392 Mich 670, 677-678; 221 NW2d 350 (1974).
Defendant argues that this case is similar to People v Carter, 462 Mich 206; 612 NW2d 144
(2000), in which our Supreme Court found a violation of the court rule when the trial court told
the jury that transcripts would not be available until ?some weeks and months way into the
future,? and that they must rely on their collective memories. Id. at 213. In the instant case, the
trial court stated: ?Ladies and Gentlemen, you will [have] to rely upon your recollection. While
they?re making a record that has not been prepared, I?ll probably get it to you by next
Wednesday or Thursday of next week. But right now, you will have to rely on your recollection.
Just remind me.? Because the trial court did not foreclose future review of the testimony, it did
not err. Furthermore, defendant has not articulated how he may have been prejudiced.
Accordingly, we affirm defendant?s conviction and sentence for first-degree felony
murder and vacate his conviction and sentence for conspiracy to assault with intent to rob while
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Harold Hood