People of Michigan v. Keith Devon Turner

Michigan Supreme Court Lansing, Michigan

Megan K. Cavanagh, Chief Justice Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood,

Justices

Order

October 3, 2025 167563 & (165)(166)(167)(174)(179)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 167563

COA: 358748

Genesee CC: 19-045042-FC

KEITH DEVON TURNER,

Defendant-Appellant. _________________________________________/ On order of the Court, the motion to amend the application is GRANTED. The application for leave to appeal the July 18, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motions to remand and to correct the record are

DENIED.

WELCH, J. (concurring). As I noted in People v Morris, ___ Mich ___, ___; 14 NW3d 411 (December 26, 2024) (Docket No. 167341), I believe our law regarding the distinction between first- and second-degree murder and the "second look" doctrine is worthy of reconsideration. The two offenses differ greatly in their penalties—first-degree murder carries a mandatory sentence of life without parole, see MCL 750.316(1), while second-degree murder allows for a sentence of life or a term of years, see MCL 750.317. A report from the Michigan Department of Corrections indicates that for prisoners committed in 2023—the last year for which data is available—the average minimum prison term for second-degree murder was 22.1 years. See Michigan Department of Corrections, 2023 Statistical Report (June 17, 2024; updated May 5, 2025), p 18, available at

/media/Project/Websites/corrections/Files/Statistical-Reports/Statistical-Reports/2023- Statistical-Report.pdf> (accessed September 26, 2025) [https://perma.cc/M255-B74P]. The distinction between these two crimes is premeditation, which occurs when a murder is

"perpetrated by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing." MCL 750.316(1)(a).

But despite the heavy weight attached to it, the difference between these two offenses is often paper-thin. Under the rule set out by this Court in People v Oros, 502 Mich 229 (2018), we will sustain a conviction for first-degree, premeditated murder provided there is evidence from which a jury could infer that the defendant could have taken a "second look" and reconsidered their actions. See id. at 248-249. Oros stated that

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the amount of time necessary for a defendant to take that "second look" is minimal—a

" 'brief moment of thought' or a 'matter of seconds' " will do. Id. at 243 (citation omitted). Thus, only the briefest instant may separate first- and second-degree murder. Placing so much weight on such a fine distinction leads to arbitrary results. This case provides an example. Defendant shot another man during a late-night fight in a strip club parking lot. It is undisputed that defendant and the decedent did not know each other. Rather, the shooting appears to have resulted from a chaotic altercation, involving a number of other individuals. Several eyewitnesses testified at trial, but their accounts were inconsistent. And while the episode was captured on surveillance video, the footage adds little clarity about the moments leading up to the shooting. It is unclear when, exactly, defendant formed the intention to murder the decedent. Perhaps defendant had the opportunity to take a "second look" before doing so. But we can do little more than speculate as to whether he actually did. This is a slender reed upon which to rest a life sentence.

However, defendant has not asked the Court to overrule or reconsider Oros. Given the low bar set by Oros, I concur in the Court's order denying leave to appeal. CAVANAGH, C.J., joins the statement of WELCH, J.

HOOD, J. (dissenting).

With respect, I would grant the application to consider whether Sergeant Esther Campbell's testimony violated defendant's rights under the Confrontation Clause by offering testimonial hearsay statements of an anonymous informant and whether defense counsel was ineffective for failing to object to such testimony.

In a shooting-death case with conflicting eyewitness testimony, the trial court allowed a police officer witness to testify that numerous individuals anonymously identified defendant, Keith Devon Turner, as the shooter. Ostensibly, the prosecution offered the statements to show the effect on the listener, not for the truth of the matter asserted—that Turner was the shooter. This case asks us to consider how to handle testimonial statements that do both. It is worth our consideration.

I. BACKGROUND

This case started with a shooting death outside a nightclub in November 2018. The police eventually identified Turner as a suspect in the shooting and arrested him. The prosecution charged Turner with first-degree premeditated murder, MCL 750.316(1)(a); assault with intent to commit murder (AWIM), MCL 750.83; being a felon in possession of a firearm (felon-in-possession), MCL 750.224f; carrying a concealed weapon (CCW),

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MCL 750.227; and three counts of possessing a firearm during the commission of a felony (felony-firearm), third offense, MCL 750.227b.

At trial, witnesses gave conflicting testimony about Turner's involvement. In addition to eyewitnesses, the prosecution called Sergeant Esther Campbell of the Flint Police Department, the officer in charge in this case. Sergeant Campbell testified that multiple anonymous tipsters identified Turner as the shooter. Specifically, on direct examination, she stated:

I received an anonymous tip in regards to who the actual—who was a suspect and received the name of Keith Turner at that point from an a [sic] anonymous tip . . . . [B]ecause he was a person of interest in an anonymous tip, I began to follow up on that information. . . . I received also follow up information that Mr. Turner had changed his appearance and rented a vehicle and left the state . . . .

Sergeant Campbell did not receive tips identifying anyone else as the shooter. Defense counsel did not object to this testimony. On cross-examination, Sergeant Campbell stated there was more than one anonymous caller who identified Turner by name. On redirect examination, Sergeant Campbell testified she did not receive any other names during the investigation.

Turner moved for a directed verdict, arguing that there was insufficient evidence of premeditation and deliberation to submit the charge of first-degree murder to the jury. The trial court denied his motion.

The jury found Turner guilty as charged. The trial court sentenced him, as a fourth- offense habitual offender, MCL 769.12, to life imprisonment without the possibly of parole for first-degree murder; 40 to 60 years' imprisonment for AWIM; 10 to 20 years' imprisonment for felon-in-possession; 10 to 20 years' imprisonment for CCW; and 10 years' imprisonment for each felony-firearm conviction.

Turner appealed as of right in the Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed his convictions. People v Turner, unpublished per curiam opinion of the Court of Appeals, issued July 18, 2024 (Docket No. 358748). Judge MALDONADO concurred in part and dissented in part, concluding that there was insufficient evidence of premeditation and deliberation to support Turner's first-degree murder conviction. Id. (MALDONADO, J., concurring in part and dissenting in part). Turner then applied for leave to appeal in this Court.

II. ANALYSIS

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Turner argues that Sergeant Campbell's testimony violated his Confrontation Clause rights by offering testimonial hearsay statements of anonymous informants and, relatedly, that defense counsel was ineffective for failing to object to such testimony.¹I would grant the application to consider these related issues.

Under the United States and Michigan Constitutions, "[a] defendant has the right to be confronted with the witnesses against him or her." People v Chambers, 277 Mich App 1, 10 (2007); see also US Const, Am VI; Const 1963, art 1, § 20. The United States Supreme Court has recognized that a primary objective of the Confrontation Clause is to compel witnesses to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. [People v Buie, 285 Mich App 401, 408 (2009) (quotation marks and citation omitted).]

The Confrontation Clause prohibits the admission of any out-of-court statement that is "testimonial" in nature unless the witness making the statement was available at trial or the defendant had a prior opportunity to cross-examine the witness. Crawford v Washington, 541 US 36, 68 (2004). "However, the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted." Chambers, 277 Mich App at 10-11. Rather, "[t]he Confrontation Clause applies only to statements used as substantive evidence." People v Fackelman, 489 Mich 515, 528 (2011).

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At the outset, it is uncontested that the defense did not have an opportunity to cross- examine the anonymous tipsters' identification of Turner as the "actual" shooter, as presented through Sergeant Campbell. So, the focus of any plain-error analysis would be on whether the statements were testimonial and therefore a violation of the Confrontation Clause. Cf. Fackelman, 489 Mich at 562 (synthesizing Confrontation Clause inquiries into two questions: (1) whether the person is a "witness against" the accused; and (2) if so, whether the accused has been "afforded an opportunity to 'confront' "). Neither this Court nor the United States Supreme Court has provided a comprehensive or exhaustive list of the sorts of statements that are testimonial and those that are nontestimonial, but the core of these statements is well understood. See Crawford,

541 US at 51-52 (providing a "core class of 'testimonial statements' " that are subject to the Confrontation Clause); Fackelman, 489 Mich at 556-558. In the broadest sense, testimonial statements are statements made to be used in court (like prior testimony, expert reports, plea allocutions, and police interrogations), and nontestimonial statements are statements made without such an expectation (like casual, off-hand, or overheard remarks; statements in furtherance of a conspiracy; or business records). Crawford, 541 US at 51-

52. In other words, "testimonial statements 'include statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial[.]' " People v Spangler, 285 Mich App 136, 154 (2009), quoting Crawford, 541 US at 52. To determine whether a statement constitutes a "testimonial statement," a court must objectively examine the circumstances under which the statement was made. Davis v Washington, 547 US 813, 826 (2006). "A statement by a confidential informant to the authorities generally constitutes a testimonial statement." Chambers, 277 Mich App at 10.

"[T]he Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 10-

11. "[A] statement offered to show why police officers acted as they did is not hearsay."

Id. at 11.

This case raises the question of what happens when out-of-court testimonial statements are offered to show the effect on the listener and as substantive proof of the matter asserted. Here, the Court of Appeals rejected Turner's argument that this violates the Confrontation Clause. Specifically, the Court of Appeals held: "Sergeant Campbell's testimony about the anonymous tips was not offered to prove that Turner was the shooter. Rather [it] was offered to show why the police made defendant the focal point of the investigation. Because the statements were not offered for their truth, they did not implicate the Confrontation Clause." Turner, unpub op at 10.

In reaching this conclusion, the Court of Appeals relied on Chambers, 277 Mich App at 10-11. In Chambers, the Court of Appeals held that the Confrontation Clause was not violated when the lead detective testified about an informant's tip that helped the police

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locate the defendant and seize other evidence. See Chambers, 277 Mich App at 10-11. In that case, following a robbery at an ATM, the police obtained still photographs from the ATM's video surveillance camera, which local television stations publicized. Id. at 4. At trial, the lead detective "testified that he received a telephone call from an FBI agent who told him that one of the agent's informants recognized the man in the still photograph as [the] defendant." Id. at 10. The Court of Appeals concluded that the testimony did not violate the Confrontation Clause, because "the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted." Id. at 10-11, citing People v McPherson, 263 Mich App 124, 133 (2004) and Crawford, 540 US at 59 n 9. The Court of Appeals concluded that the tip was not offered for its truth, but rather to explain why the detectives organized surveillance at the defendant's home, how they arrested him, and how the police seized other physical evidence. See Chambers, 277 Mich App at 11.

I question the Court of Appeals' conclusion on the confrontation issue for two reasons. First, read broadly, Chambers may represent a drift away from the text of the Confrontation Clause and this Court's interpretation of it. Compare Chambers, 277 Mich App at 10-11, with People v Eady, 409 Mich 356 (1980). Second, reading Chambers narrowly may have resulted in a different outcome in this case. The Chambers decision relied on People v Jackson, 113 Mich App 620 (1982), which held, in the context of a robbery trial, that testimony about a 911 dispatcher's statement did not violate the right to confrontation because it was not offered to prove the truth of the dispatcher's statement, but merely to explain the presence of officers at the scene. See id. at 624; see also Chambers, 277 Mich App at 10-11. The Court of Appeals explained that it had "no doubt that the jury understood that the dispatcher's statement had no substantive bearing on whether it was in fact a robbery that was taking place." Jackson,

113 Mich App at 624. It distinguished the circumstances in that case from cases in which the statement is also substantive evidence that is probative of issues in the case. See id. (distinguishing Eady, 409 Mich 356, where the content of the radio dispatch was substantive proof that the victim had been resisting the defendant's sexual advances before the police arrived at the scene of the alleged criminal sexual conduct). It is also worth noting that the Court of Appeals in Chambers generalized the holding in Jackson as follows: "[A] statement offered to show why police officers acted as they did is not hearsay." Chambers, 277 Mich App at 11; cf. Jackson, 113 Mich App at 624. The Court of Appeals' application of Chambers in this case almost seems like the application of an exception to the Confrontation Clause. If Chambers created an exception, it would be difficult to imagine how this exception would not collapse the right of confrontation related to statements made to the police. It is also possible that neither Chambers nor Jackson abrogates the hallmark rule: statements made to the police are testimonial and subject to the Confrontation Clause, see Crawford, 541 US at 51-52, unless they are solely offered to show why the police did something or are subject to confrontation,

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see Jackson, 113 Mich App at 624, and Eady, 409 Mich at 356. We should consider: if the statement shows the effect on the hearer and has independent evidentiary value, does its introduction violate the Confrontation Clause? See Jackson, 113 Mich App at 624. Here, Sergeant Campbell's statements were offered to explain why she investigated Turner. But this was not the only effect of her testimony. The statements of the anonymous tipsters were also introduced as substantive proof of Turner's identity as the shooter. Or, as Sergeant Campbell began to state, who the "actual" shooter was. Sergeant Campbell testified that multiple anonymous tips came in identifying Turner as the shooter. She also explained that she received information from anonymous tips that Turner had changed his appearance, rented a vehicle, and left the state. This testimony exceeds what was necessary for Sergeant Campbell to explain her actions. I believe the admission of Sergeant Campbell's testimony regarding anonymous tips violated Turner's right to confrontation.

"A violation of the Confrontation Clause does not automatically entitle defendant to relief; rather, the violation is subject to a harmless-error analysis." People v Washington,

514 Mich 583, 604 (2024). In this case, I do not think the Confrontation Clause violation was harmless error. The evidence against Turner was not especially strong. This case involves a chaotic scene in a nightclub parking lot. Witnesses gave vastly different recollections of the events leading up to the shooting. Sergeant Campbell's testimony was important in identifying Turner as the shooter, particularly when bolstered with the unexamined identifications of anonymous witnesses.

I would grant leave to appeal to consider whether the testimony violated Turner's Confrontation Clause rights, and whether admitting it prejudiced Turner. I believe Turner may also succeed on his ineffective-assistance-of-counsel claim. It was likely unreasonable for defense counsel to fail to object to Sergeant Campbell's testimony. The question of prejudice necessarily bleeds into the issue of the sufficiency of the evidence.

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I, Elizabeth Kingston-Miller, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. October 3, 2025

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Clerk For these reasons, I would grant the application. BOLDEN, J., joins the statement of HOOD, J.

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