Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

January 8, 2010

139591

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v SC: 139591 COA: 274033 Wayne CC: 06-004742-01 JOVAN DEKEITH SMELLEY, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the August 13, 2009 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals opinion

that held that the trial court abused its discre tion in admitting flight ev idence. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.

In this homicide case, the prosecutor intr oduced as circumstantial evidence of defendant’s consciousness of guilt that he had been arrested in Ge orgia two weeks after the homicide. After being released from jail in Georgia, defendant returned to Michigan

where he was arrested. The fact that he voluntarily retu rned to Michigan does not necessarily mean that defendant did not initially flee to Georgia out of fear of apprehension.

The Court of Appeals stated, “There is no evidence in the re cord that defendant left the jurisdiction because he was aware o f, or motivated by fear of apprehension for, this homicide. The prosecu tion did not rebut defense coun sel’s claim that, before or during the time defendant was in Georgia, defendant had no knowledge about this

matter.” People v Smelley, 285 Mich App 314, 333 (2009).

First, the prosecutor is not required to prove that defendant left the jurisdiction because he was “motivated” by fear of appr ehension. If that was required, flight evidence would rarely be admissible b ecause it is obviously difficult to prove somebody’s motives. Second, the prosecutor did rebut defendant’s claim that he had no2

knowledge about this matter. McLeod’s testimony that the shots sounded like they originated from defendan t’s car and that he was driving this car at the time of the shooting rebutted defendant’s claim that he had no knowledge of the homicide.

C ORRIGAN , J. ( concurring ).

I concur in the order vacating the Court of Appeals judgment in part. I write separately to underscore that the trial c ourt did not abuse its discretion in admitting evidence of flight and in inst ructing the jury according to the model flight instruction,

CJI2d 4.4.

In this criminal case arising from a driv e-by shooting in Detroit, the trial court admitted evidence of defendant’s flight and s ubsequent arrest by a DEA agent in Georgia

two weeks after the homicide. The trial cour t determined that the flight evidence was

relevant circumstantial evidence of defe ndant’s consciousness of guilt. A jury subsequently convicted defendant of second-degree murder, 1 felon in possession of a firearm, 2 felony firearm, 3 and assault with intent to do great bodily harm less than

murder. 4 Defendant appealed by right, and the Court of Appeals reversed and remanded for a new trial, concluding that the trial c ourt abused its discretion in admitting evidence of defendant’s flight. Because the decision to admit this evidence and to instruct the jury about defendant’s flight fell within the range of reasonable and prin cipled outcomes, the Court of Appeals erred when it held that the trial court abused its discretion in admitting evidence of defendant’s flight.

It is well established that evidence of flight is admissible to sup port an inference of a defendant’s consciousness of guilt. 5 By itself, flight evidence is insufficient to sustain a conviction. Nonetheless, flight evidence is probative because it ma y show consciousness of guilt. 6 Examples of “flight” include: fleeing the scene of the crime, leaving the state or jurisdiction, running fr om the police, or atte mpting to escape custody. 7 Here, defendant left Michigan shortly after the homicide occurre d. Soon thereafter, a DEA agent arrested

1 MCL 750.317.

2 MCL 750.224f.

3 MCL 750.227b.

4 MCL 750.84.

5 People v Unger , 278 Mich App 2 10, 226 (2008); People v Compeau , 244 Mich App 595, 598 (2001).

6 People v Coleman , 210 Mich App 1, 4 (1998).

7 Id

.3

him in Georgia. Once defendant was releas ed from jail in Georgia, he returned to Michigan where he was later arrested.

Although flight evidence is equivocal in nature, “evidence of flight is generally

relevant and admissible.” 8 Whether defendant fled to Ge orgia for reasons other than his consciousness of guilt regarding these offe nses affects only the weight, and not the admissibility, of th e flight evidence. 9 Similarly, the relative remoteness of defendant’s flight from the time of his arrest does not affe ct the admissibility of the evidence, but it is relevant to the weight acc orded to such evidence. 10 As this Court ha s observed, “[i]t is true that flight from the scene of a tragedy may be as consistent with innocence as with guilt; but it is always for the ju ry to say whether it is unde r such circumstances as to evidence guilt.” 11

Moreover, the trial court in structed the jury according to the model flight instruction, which provides that flight evidence, standing alon e, is insufficient to warrant

conviction and an individual may flee for innocent reasons. 12 Specifically, the trial court

stated that:

There has been some evidence that the defe ndant left after the alleged crime. This evidence does not prove guilt. A person may run or hide for innocent reasons such as panic, mistake or fear. However, a person may also run or hide beca use of consciousness of guilt. You must decide

whether the evidence is true and whet her it shows that th e defendant had a guilty state of mind.

Not only was the flight instruction given by the trial court in this case entirely consistent with the model flight instruction, but it al so was reasonable and principled instruction based on the evidence presented.

8 People v Cutchall , 200 Mich App 396, 398 (1993).

9 See Unger, 278 Mich App at 226.

10 Compeau, 244 Mich App at 598.

11 People v Cipriano , 238 Mich 332, 336 (1927).

12 CJI2d 4.4.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk January 8, 2010

s0105 4

Because the trial court did not abuse its discretion in adm itting evidence of defendant’s flight or instruc ting the jury ac cording to the model flight instruction, I concur with the order vacating the Court of Appeals judgment in part.

C AVANAGH

, J., would deny leave to appeal.