People of Michigan v. Andrew Michael Czarnecki ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 10, 2021
Plaintiff-Appellee,
v No. 348732
Wayne Circuit Court
ANDREW MICHAEL CZARNECKI, LC No. 16-010813-01-FC
Defendant-Appellant.
Before: O’BRIEN, P.J., and STEPHENS and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions, following a jury trial, of first-degree
premeditated murder, MCL 750.316(1)(a), armed robbery, MCL 750.529, and mutilation of a dead
body, MCL 750.160.1 Defendant was sentenced to a term of life imprisonment without parole for
the first-degree murder conviction, 11 to 20 years’ imprisonment for the armed robbery conviction,
and 4½ to 10 years’ imprisonment for the mutilation of a dead body conviction, to be served
concurrently. We affirm.
I. BACKGROUND
Defendant’s convictions arise from the robbery and killing of Gavino Hernandez
Rodriguez, who went missing on July 10, 2013. Rodriguez left for work on the morning of July
10, 2013, and never returned home. Rodriguez was driving a Pontiac G6 that belonged to his
wife’s uncle. On July 12, 2013, the Pontiac G6 was found on Florida Street in southwest Detroit.
Blood was discovered on several areas of the car, including in the trunk. On July 20, 2013,
Rodriguez’s charred remains were discovered in a vacant area in southwest Detroit. Because the
body was so badly burned, the medical examiner was unable to determine a cause of death.
However, the examiner discovered that Rodriguez’s hyoid bone was fractured, and stains on the
1
The jury acquitted defendant of an additional charge of carjacking, MCL 750.529a. The jury
also convicted defendant of an additional alternative charge of first-degree felony murder, MCL
750.316(1)(b), but the trial court vacated that conviction at sentencing.
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fracture suggested that the fracture occurred at or near the time of his death. The type of fracture
was consistent with strangulation or a blow to the neck. DNA testing of blood samples collected
from the wheel well in the trunk of the Pontiac G6 matched Rodriguez’s DNA profile. Latent
fingerprints found on the trunk of the Pontiac G6 matched defendant’s prints.
The prosecution’s theory of the case was that defendant and Hameer Alkotiat jointly
participated in the killing of Rodriguez to take his Pontiac G6, and then disposed of his body in a
vacant area of southwest Detroit, where defendant set the body on fire. The prosecution’s key
witness, Robert Bonas, testified that he often spent time with defendant and Alkotiat, whose
nickname is “Moose.” Bonas claimed that the three of them were together in the early morning
hours of July 11, 2013, when defendant and Alkotiat both recounted to Bonas how they had beaten
Rodriguez by wrapping a chain around his neck, pulling him to the ground, and repeatedly kicking
him, and then defendant struck Rodriguez over the head with a heavy metal object that looked like
a Christmas tree stand. They explained that after Rodriguez was dead, they wrapped his body in
sheets, placed the body in the trunk of the Pontiac G6, and drove to a nearby vacant area where
they dumped the body and set it on fire.
The prosecution presented evidence of forensic cell phone record analysis to show
communications between Rodriguez’s and defendant’s cell phones on the afternoon of July 10,
2013, and in the weeks leading up to that day. Records also showed that both cell phones interacted
with the same cell tower in the area of defendant’s southwest Detroit neighborhood in the late
afternoon on July 10, 2013, that Rodriguez’s phone went “dark” later that evening (meaning there
was no more outgoing activity), and that during the early morning hours of July 11, 2013,
defendant’s cell phone interacted with a cell tower in the area where Rodriguez’s body was
discovered.
Defendant and Alkotiat were originally scheduled to be tried jointly, but on the eve of trial,
the court adjourned Alkotiat’s trial because of unanticipated medical issues with his attorney.
Therefore, the trial proceeded against defendant only.2 The defense theory at trial was that “there
is no doubt in our minds . . . that Mr. Bonas participated in this homicide with Moose.” The jury
found defendant guilty of first-degree premeditated murder, armed robbery, and mutilation of a
dead body, but acquitted him of an additional count of carjacking.
II. ADMISSIBILITY OF ALKOTIAT’S STATEMENTS TO BONAS
Defendant first argues that the trial court erred by allowing the prosecution to introduce
Alkotiat’s statements to Bonas under the hearsay exception for statements against the declarant’s
penal interest, MRE 804(b)(3). Defendant argues that the prosecution failed to establish that
Alkotiat was unavailable to testify, which is a requirement for admissibility under MRE 804(b)(3).
We disagree.
2
Alkotiat later pleaded guilty to second-degree murder, MCL 750.317, and was sentenced to a
prison term of 18 to 20 years.
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A. PRESERVATION OF ISSUE AND STANDARD OF REVIEW
“To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 116; 631 NW2d 67 (2001). The admissibility of Alkotiat’s statements
to Bonas was addressed in a pretrial motion in limine. The trial court ruled that the statements
were admissible. Although defendant argued that Alkotiat’s statements did not meet the
requirements for admissibility under MRE 804(b)(3) and that admission of the statements would
violate defendant’s right of confrontation, defendant did not argue that Alkotiat was not an
unavailable witness under MRE 804(a). Therefore, defendant’s appellate argument is
unpreserved. Accordingly, we review this issue for plain error affecting defendant’s substantial
rights. People v Knox, 469 Mich 502, 508; 674 NW2d 366 (2004); People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
The parties do not dispute that Alkotiat’s statements to Bonas are hearsay. MRE 801(c)
provides that “ ‘hearsay’ is a statement, other than the one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Under MRE
802, hearsay is not admissible unless specifically provided for by the rules of evidence. In this
case, Alkotiat’s statements were offered under MRE 804(b)(3) (statements against interest). That
exception is applicable only if the declarant is unavailable. MRE 804 provides, in pertinent part:
(a) Definition of Unavailability. “Unavailability as a witness” includes
situations in which the declarant--
(1) is exempted by ruling of the court on the ground of privilege from
testifying concerning the subject matter of the declarant’s statement[.]
* * *
(b) Hearsay Exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
* * *
(3) Statement Against Interest. A statement which was at the time of its
making so far contrary to the declarant’s pecuniary or proprietary interest, or so far
tended to subject the declarant to civil or criminal liability, or to render invalid a
claim by the declarant against another, that a reasonable person in the declarant’s
position would not have made the statement unless believing it to be true. A
statement tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Defendant does not argue that Alkotiat’s statements to Bonas do not qualify as statements against
interest under MRE 804(b)(3). Rather, he argues only that the statements were not admissible
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under that exception because it was not demonstrated that Alkotiat was unavailable as a witness.
We disagree.
The record discloses that defendant and Alkotiat were both charged in this matter. They
were scheduled to be tried jointly, but on the eve of trial the court agreed to adjourn Alkotiat’s trial
because of some unanticipated medical issues involving Alkotiat’s attorney. Therefore, trial
proceeded against defendant only. When the admissibility of Alkotiat’s statements to Bonas was
revisited on the first day of trial, the issue of Alkotiat’s unavailability was neither discussed nor
contested. In his opening statement, defense counsel informed the jury that Alkotiat was “a person
who was involved in this homicide,” but explained that Alkotiat was being tried separately and
would not be present at defendant’s trial.
In People v Meredith, 459 Mich 62, 65-66; 586 NW2d 538 (1998), our Supreme Court
recognized that a witness who relies on the Fifth Amendment to avoid testifying at trial is
unavailable under MRE 804(a). The Court explained:
While invocation of the Fifth Amendment is not expressly treated in MRE
804(a) it is of the same character as the other situations outlined in the subrule.
Further, while “unavailability” is a term of art under MRE 804(a), it also bears a
close nexus to the ordinary meaning of the word. Thus we often have recognized
that a witness, in fact, is unavailable who cites the Fifth Amendment as a
justification for not testifying. [Meredith, 459 Mich at 66 (emphasis added).]
Although defendant complains that the prosecutor never demonstrated that Alkotiat was an
unavailable witness for purposes of MRE 804(a), it is apparent from the record that Alkotiat was
unavailable because he was a codefendant in this case who was still awaiting trial. Indeed, defense
counsel noted in his opening statement that Alkotiat was “involved in this homicide,” but would
not be present at defendant’s trial because he was being tried separately. Because of Alkotiat’s
Fifth Amendment right against self-incrimination, the prosecution could not have called him as a
witness and compelled his testimony. Moreover, defendant failed to object on grounds that the
prosecution did not establish Alkotiat’s unavailability, so the prosecution did not have the
opportunity to fully develop this issue. Under these circumstances, and without any indication in
the record otherwise suggesting that Alkotiat was willing or expected to testify, defendant has not
demonstrated that the admission of Alkotiat’s statements under MRE 804(b)(3) can be considered
plain error for the reason that it was not demonstrated that Alkotiat was an unavailable witness
under MRE 804(a).
III. TEXT MESSAGE EVIDENCE
Defendant next argues that the trial court erred by admitting text-message evidence at trial.
The prosecution offered the text messages as evidence of Rodriguez’s communications with both
defendant and Alkotiat during the weeks leading up to and on the day of Rodriguez’s
disappearance. Defendant argues that the prosecution failed to establish a sufficient foundation
for admitting the text messages because it failed to demonstrate that the messages that Rodriguez
sent and received involved communications with Alkotiat and defendant. We disagree.
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We review a trial court’s decision regarding the admission of evidence for an abuse of
discretion. People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). A court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes. Id.MRE 901(a) provides:
The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
In Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154; 908 NW2d 319
(2017), this Court explained that there are two discrete questions related to the challenge of
evidence on the basis of its authenticity:
In Michigan, challenges to the authenticity of evidence involve two related,
but distinct, questions. The first question is whether the evidence has been
authenticated—whether there is sufficient reason to believe that the evidence is
what its proponent claims for purposes of admission into evidence. The second
question is whether the evidence is actually authentic or genuine—whether the
evidence is, in fact, what its proponent claims for purposes of evidentiary weight
and reliability.
The first question is reserved to the trial court, and as the evidentiary gatekeeper, it must decide
whether evidence was presented to support a conclusion that the evidence is what the proponent
asserts it is. Id. at 155. There is no one particular way for the proponent to meet this burden, and
“evidence supporting authentication may be direct or circumstantial and need not be free of all
doubt.” Id. This Court further explained the process underlying the authentication of evidence by
the trial court as follows:
Michigan courts have interpreted MRE 901(a) as requiring the proponent
only to make a prima facie showing that a reasonable juror might conclude that the
proffered evidence is what the proponent claims it to be. See Mitchell, 37 Mich
App at 355-356. See also Gillespie, Michigan Criminal Law & Procedure, Practice
Desk Book (2d ed.), § 9.2, p 472 (“[T]he question of admissibility turns on an initial
decision by the court that a reasonable juror might find for the proponent on the
question.”). Once the proponent of the evidence has made the prima facie showing,
the evidence is authenticated under MRE 901(a) and may be submitted to the jury.
See Mitchell, 37 Mich App at 356. At this first stage, the opponent may oppose
authentication by arguing that a reasonable juror could not conclude that the
proffered evidence is what the proponent claims it to be. [Mitchell, 321 Mich App
at 155.]
Under MRE 901(a), the prosecution was required to present evidence to support a finding
that the text messages in question were what the prosecution claimed them to be, namely,
communications between Rodriguez and both Alkotiat and defendant. Evidence at trial established
that the phone numbers that Rodriguez sent his messages to, and received messages from, were
numbers associated with Alkotiat and defendant. Further, in the text messages themselves, the
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senders of the messages identified themselves as Moose (Alkotiat’s nickname) and Drew (a name
defendant used), and Rodriguez likewise referred to the recipients by these names. This evidence
was sufficient to support a finding that the matters in question (Rodriguez’s text-message
exchanges) were what the prosecution claimed them to be (communications between Rodriguez
and both defendant and Alkotiat). To the extent that there were any factual issues involving the
identities of the persons whom Rodriguez was communicating with, those issues were to be
resolved by the jury. Mitchell, 321 Mich App at 154; see also People v Anderson, 322 Mich App
622, 632; 912 NW2d 607 (2018) (explaining that it is for the jury to determine questions of fact);
People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008) (explaining that it is the jury’s
role to weigh the evidence presented at trial).
IV. JUDICIAL MISCONDUCT
Defendant next argues that the trial court’s conduct throughout trial pierced the veil of
judicial impartiality and thereby denied him a fair trial. We disagree.
A. PRESERVATION OF THE ISSUE AND STANDARD OF REVIEW
To preserve a claim of judicial bias or misconduct, a defendant is required to raise the claim
in the trial court. People v Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011); MCR
2.003(B). Because defendant did not object to any of the challenged conduct on the basis that the
court pierced the veil of judicial impartiality, his claims of judicial misconduct are not preserved.
In People v Swilley, 504 Mich 350, 370; 934 NW2d 771 (2019), our Supreme Court
explained:
The question whether a judge’s conduct has “denied a defendant a fair trial is a
question of constitutional law that this Court reviews de novo.” [People v Stevens,
498 Mich 162, 168; 869 NW2d 233 (2015)]. “When the issue is preserved and a
reviewing court determines that the trial judge’s conduct pierced the veil of judicial
impartiality, the court may not apply harmless-error review.” Id. at 164. Rather,
“once a reviewing court has concluded that judicial misconduct has denied the
defendant a fair trial, a structural error has occurred and automatic reversal is
required.” Id. at 168, citing Arizona v Fulminante, 499 US 279, 309; 111 S Ct
1246; 113 L Ed 2d 302 (1991).
However, unpreserved claims of judicial misconduct are reviewed for plain error affecting
substantial rights. Jackson, 292 Mich App at 597. As this Court explained in People v Cooper,
309 Mich App 74, 88; 867 NW2d 452 (2015):
A plain error is one that is “clear or obvious,” and the error must affect the
defendant’s “substantial rights.” Carines, 460 Mich at 763. That is, the defendant
must have been prejudiced by the plain error. Id. “Reversal is warranted only when
the plain, forfeited error resulted in the conviction of an actually innocent defendant
or when an error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of defendant’s innocence.” Id. at 763 (citation
and quotation marks omitted; alteration in original).
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B. ANALYSIS
In determining whether a trial judge’s conduct deprived a defendant of a fair and impartial
trial, the pivotal inquiry is whether the judge’s conduct pierced the veil of judicial impartiality.
Swilley, 504 Mich at 370. “A judge’s conduct pierces this veil and violates the constitutional
guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely
that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” Stevens, 498 Mich at 171. This inquiry is dependent on the facts of
each case and requires a weighing of the following factors:
the nature of the trial judge’s conduct, the tone and demeanor of the judge, the scope
of the judicial conduct in the context of the length and complexity of the trial and
issues therein, the extent to which the judge’s conduct was directed at one side more
than the other, and the presence of any curative instructions, either at the time of an
inappropriate occurrence or at the end of trial. [Swilley, 504 Mich at 371.]
This list is nonexhaustive and other factors may also be considered as relevant. Id. It is not
necessary that every factor weigh in favor of a determination of impermissible partiality for a
reviewing court to conclude that the judge’s conduct improperly influenced the jury—the standard
for reviewing courts is to consider a court’s conduct under the totality of the circumstances. Id.
Therefore, a court should not evaluate errors standing alone, but must consider the cumulative
impact of the errors. Id.
1. THE NATURE OF THE TRIAL COURT’S CONDUCT
We first consider the nature of the trial court’s conduct because this is “the starting point
to evaluate whether the conduct overstepped the line of judicial impartiality.” Stevens, 498 Mich
at 173. In Swilley, 504 Mich at 371-372, the Court discussed the type of conduct that can pierce
the veil of judicial impartiality and be reasonably likely to improperly influence a jury:
Improper judicial conduct may come in many forms, including belittling of counsel,
inappropriate questioning of witnesses, providing improper strategic advice to a
particular side, biased commentary in front of the jury, or a variety of other
inappropriate actions. [Quotation marks and citation omitted.]
The majority of defendant’s challenges to the trial court’s conduct involve the court’s
interference with defense counsel’s questioning of witnesses. As our Supreme Court observed,
“undue interference, impatience, or participation in the examination of witnesses, or a severe
attitude on the judge’s part toward witnesses . . . may tend to prevent the proper presentation of
the cause, or the ascertainment of truth in respect thereto.” Stevens, 498 Mich at 174.
Initially, while defendant accuses the trial court of “targeting defense counsel’s ability to
cross-examine key witnesses,” the record does not support this assertion. With respect to defense
counsel’s questioning of (1) Dr. Gary Berman regarding an alleged inconsistency in Dr. Wornick’s
report, and (2) Captain Winston Farrow regarding his admittedly prior incorrect testimony, the
trial court’s conduct was aimed at limiting defense counsel’s belaboring cross-examination on
points that were not materially relevant to issues at trial. The alleged inconsistences in Dr.
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Wornick’s report, and any inaccuracy with respect to whether Captain Farrow observed a body
when he visited the scene, were not materially relevant to a determination of defendant’s guilt or
innocence of the charged offenses. Notably, the trial court did not foreclose questioning on these
subjects, but only acted to limit defense counsel’s cross-examination when it became repetitive.
With regard to the trial court’s rulings on the prosecutor’s objections that defense counsel’s
questioning of Bonas and Sergeant Wight was argumentative, the trial court, rather than seeking
to curtail or limit cross-examination of these witnesses, instead cautioned defense counsel not to
advance defendant’s theory of the case in his questioning of the witnesses. With both witnesses,
defense counsel’s questions had conveyed counsel’s factual view of the evidence—that Bonas
went to the location where Rodriguez’s body was found to remove any incriminating evidence,
and that Bonas had intentionally failed to lead the police to defendant’s house where he claimed
Rodriguez was killed because Bonas did not want the police to find any evidence there—so it was
not inappropriate for the trial court to remind the jury that the statements of the attorneys were not
evidence.
The trial court’s challenged conduct did not involve belittling defense counsel or biased
commentary in front of the jury. Rather, its conduct was within the scope of its authority to manage
the trial in an orderly and expeditious fashion. The trial court is vested with the power and
discretion to manage the conduct of the trial. People v Conley, 270 Mich App 301, 307; 715 NW2d
377 (2006). Accordingly, this factor weighs against concluding that the trial court’s conduct
pierced the veil of impartiality. Swilley, 504 Mich at 380.
2. THE TRIAL COURT’S TONE AND DEMEANOR
As recognized in Stevens, a jury will turn to the trial court for guidance and instruction,
and therefore, the jury is susceptible to even the most minimal indication of bias or prejudice
exhibited by the trial court. Stevens, 498 Mich at 174. Therefore, a trial court should refrain from
expressing its own opinions about the parties, and it must be aware of not only the substance of its
words, but the manner in which they are stated. Id. at 175; Swilley, 504 Mich at 381. Accordingly,
the trial court must refrain from using a controversial tone. Id. While this Court is not able to
experience the tone and demeanor of a trial court first hand, this Court can look to the words the
court used to determine if they conveyed hostility, bias, or incredulity. Stevens, 498 Mich at 176.
Having reviewed all of the examples cited by defendant, particularly in the context of the
trial, we are satisfied that the trial court’s choice of words did not convey hostility, bias, or
incredulity with regard to defense counsel or defendant. In support of his contention that the trial
court exhibited hostility toward him and defense counsel, defendant points to the trial court’s
repeated comments that “we’re done” when precluding defense counsel from continuing to
question Captain Farrow. While the trial court appeared impatient during this instance and during
counsel’s questioning of Dr. Berman, this impatience stemmed from defense counsel’s repeated
pursuit of lines of questioning that did not bear on the credibility of the witness or on defendant’s
guilt or innocence. More significantly, the trial court’s conduct during these exchanges did not
exhibit bias or prejudice against defendant or his counsel, or partiality in favor of the prosecution.
Therefore, this factor also weighs against concluding that the trial court pierced the veil of judicial
impartiality. Swilley, 504 Mich at 386.
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3. THE SCOPE OF THE JUDICIAL INTERVENTION WITHIN THE CONTEXT OF THE
LENGTH AND COMPLEXITY OF THE TRIAL
In Stevens, 498 Mich at 176, the Supreme Court observed that in a longer trial, or one that
involves more complicated issues, “it may be more appropriate for a judge to intervene a greater
number of times than in a shorter or more straightforward trial.” In Swilley, 504 Mich at 386-387,
the Court further explained that “the focus is not solely on whether the trial itself was long or
complicated,” and that in addition to considering whether the trial itself was lengthy or involved
complicated issues, “[a] reviewing court must also evaluate the complexity of the particular issues
that were subject to judicial inquiry.”
In the present case, the record reflects that the trial court injected itself into the proceedings
on occasions when defense counsel was belaboring points that were not materially relevant to the
issues at trial. In these instances, the court allowed defense counsel to make his point and only
restricted counsel from needlessly belaboring the points. The trial court also intervened when
defense counsel advanced defendant’s views of the evidence and theory of the case while
questioning Bonas and Sergeant Wight. Notably, these interventions were prompted by objections
by the prosecutor, which required the court to respond. Given these circumstances and considered
in the context of the entire trial, the trial court’s scope of intervention was not unreasonable.
Therefore, this factor also weighs against concluding that the trial court pierced the veil of judicial
impartiality. Id. at 386.
4. THE EXTENT TO WHICH THE TRIAL COURT’S COMMENTS WERE DIRECTED AT
ONE SIDE MORE THAN THE OTHER
A finding of judicial partiality is more likely if the frequency and manner of the court’s
conduct is not balanced between the parties. Stevens, 498 Mich at 176-177. An appellate court
will not hesitate to reverse to allow for a new trial if the trial court’s questions and comments
“ ‘were such as to place his great influence on one side or the other in relation to issues which our
law leaves to jury verdict.’ ” Id. at 177, quoting People v Young, 364 Mich 554, 558-559; 111
NW2d 870 (2015).
While defendant argues that the trial court’s conduct was only “harmful to the defense,”
the record discloses that there were occasions when the court also cautioned the prosecutor about
her conduct and questioning of witnesses. For example, during closing arguments, the trial court
reminded the prosecutor to limit her arguments to the evidence presented during trial. Also, during
the prosecutor’s direct examination of Bonas, after defense counsel had raised an objection that
the prosecutor was leading the witness, the court cautioned the prosecutor to not elicit testimony
that had already been given. Later, when defense counsel raised a hearsay objection to Bonas’s
testimony, the trial court heard the objection and indicated that it would overrule the objection
only “for the moment.” During the prosecutor’s questioning of Sergeant Wight, the court sustained
defense counsel’s objection that the prosecutor’s questioning was “a little leading and a little
argumentative.” The trial court also interrupted the prosecutor when she attempted to have
Sergeant Wight testify about the date of the preliminary examination, stating that the date of the
hearing was a matter of record and the prosecutor could just state it for the record. Similarly, while
the prosecutor questioned Sergeant Wight about a silver Jeep that was found at the location where
Rodriguez’s body was discovered, defense counsel objected that the questioning was leading, and
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when the prosecutor attempted to rephrase its question, the trial court interrupted and told the
prosecutor to “move on.”
In our view, this sampling of the trial court’s conduct demonstrates that the court was
focused on managing the trial in an efficient and expeditious manner, and that the court directed
its efforts at both the defense and the prosecution evenhandedly to move the proceedings along in
an expeditious manner. See Swilley, 502 Mich at 389 (explaining that, in weighing this factor, a
consideration is whether both the defense and prosecution were subjected to equal judicial
treatment). Therefore, this factor weighs against a determination that the trial court pierced the
veil of judicial impartiality.
5. THE PRESENCE OR ABSENCE OF A CURATIVE INSTRUCTION
Whether the trial court gave a curative instruction is a relevant consideration in determining
whether the trial court exhibited impermissible advocacy and partiality to the jury. Stevens, 498
Mich at 177. As explained in Stevens:
The model jury instructions—both for civil and criminal trials—emphasize that a
judge’s comments, rulings, and questions do not constitute evidence and that the
jury should not attempt to discern the judge’s personal opinion while considering
the case. See M Civ JI 2.04(2)(b) and (c); M. Crim JI 2.4(1); M Crim JI 2.8.
Additionally, during the course of a proceeding, a trial judge has the ability to issue
a curative instruction immediately in response to conduct that could give rise to the
appearance of bias. Because “[i]t is well established that jurors are presumed to
follow their instructions,” People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998), a curative instruction will often ensure a fair trial despite minor or brief
inappropriate conduct. Depending on the circumstances, an immediate curative
instruction may further alleviate any appearance of advocacy or partiality by the
judge. [Stevens, 498 Mich at 177.]
However, there are circumstances when a trial court so oversteps the bounds of judicial impartiality
that an instruction will not alleviate or eliminate the appearance of partiality impressed upon the
jury. Id. at 177-178. This factor is considered against the backdrop of the totality of the
circumstances, and is weighed in conjunction with the other factors. Swilley, 504 Mich at 390.
In its preliminary instructions to the jury, and again in its final instructions, the trial court
advised the jury that its words were not meant to reflect its own opinions about the case, that its
comments, questions, and rulings were not evidence, that the jury should disregard any perceived
opinion of the court, and that the jury alone must decide the facts and render a verdict on the basis
of the evidence. To the extent that some of the instances of the trial court’s conduct could be
considered inappropriate, they were not overtly so or excessive. Considering the trial court’s
conduct under the totality of the circumstances, the court’s instructions were sufficient to protect
defendant’s right to a fair trial.
Accordingly, defendant has not demonstrated that the trial court’s conduct at trial pierced
the veil of judicial impartiality.
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V. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises several additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4.
A. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present sufficient evidence to support his
convictions of first-degree premeditated murder, armed robbery, and mutilation of a dead body.
We disagree.
We review de novo a challenge to the sufficiency of the evidence presented at trial. People
v Baskerville, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 345403); slip op at 2.
In People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011), this Court explained:
When reviewing a defendant’s challenge to the sufficiency of the evidence, we
review the evidence in a light most favorable to the prosecutor to determine whether
any trier of fact could find the essential elements of the crime were proven beyond
a reasonable doubt. A prosecutor need not present direct evidence of a defendant’s
guilt. Rather, circumstantial evidence and reasonable inferences arising from that
evidence can constitute satisfactory proof of the elements of a crime. [Citations,
quotation marks and alteration omitted.]
This Court will draw all reasonable inferences and determine credibility in support of the jury’s
verdict. Baskerville, ___ Mich App at ___; slip op at 3. Any conflicts in the evidence will be
resolved in favor of the prosecution. Id.
1. FIRST-DEGREE PREMEDITATED MURDER
“The elements of first-degree [premeditated] murder are (1) the intentional killing of a
human (2) with premeditation and deliberation.” People v Oros, 502 Mich 229, 240; 917 NW2d
559 (2018) (citation and quotation marks omitted).
Defendant argues that the prosecution did not prove first-degree premeditated murder
beyond a reasonable doubt because Bonas’s testimony was not credible and because Dr. Schmidt
could not state with certainty the cause of Rodriguez’s death. We disagree. The reason that Dr.
Schmidt could not determine the manner of death was because Rodriguez’s body had been so badly
burned. Dr. Schmidt testified, however, that Rodriguez’s hyoid bone was fractured, which was
consistent with strangulation or a significant blow to his neck, and this explanation was also
consistent with Bonas’s testimony that defendant and Alkotiat admitted placing a chain around
Rodriguez’s neck and pulling him to the ground. Bonas’s testimony describing how defendant
and Alkotiat both admitted killing Rodriguez was sufficient to enable the jury to find that defendant
was the cause of Rodriguez’s death. The credibility of Bonas’s testimony was for the jury to
resolve. Baskerville, ___ Mich App at ___; slip op at 3.
Defendant also argues that the prosecution did not prove that he intended to kill Rodriguez,
or that the killing was premeditated and deliberate. We again disagree. “First-degree murder is a
specific intent crime, which requires proof that the defendant had an intent to kill.” People v
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Herndon, 246 Mich App 371, 386; 633 NW2d 376 (2001). An intent to kill may be inferred by
any facts in evidence, and minimal circumstantial evidence will suffice. People v Unger, 278 Mich
App 210, 223; 749 NW2d 272 (2008). Bonas testified that defendant admitted to him that he and
Alkotiat became involved in a physical altercation with Rodriguez, during which Alkotiat placed
a chain around Rodriguez’s neck and pulled him to the ground, the two of them began kicking
him, and then defendant struck Rodriguez in the head with a heavy piece of metal. According to
Bonas, defendant showed him the piece of metal that he used to hit Rodriguez; it looked like a
Christmas tree stand and defendant commented on how heavy it was. These facts were sufficient
to support an inference that defendant intended to kill Rodriguez.
With regard to whether the killing was deliberate and premeditated, the Court in Oros, 502
Mich at 242-243, explained:
Premeditation and deliberation may be established by an interval of time
between the initial homicidal thought and ultimate action, which would allow a
reasonable person time to subject the nature of his or her action to a “second look.”
People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003); People v Tilley,
405 Mich 38, 45; 273 NW2d 471 (1979). That is, “some time span between the
initial homicidal intent and ultimate action is necessary to establish premeditation
and deliberation,” but it is within the province of the fact-finder to determine
whether there was sufficient time for a reasonable person to subject his or her action
to a second look. See Gonzalez, 468 Mich at 641 (quotation marks, brackets, and
citation omitted).
In People v Clark, 330 Mich App 392, 437; 948 NW2d 604 (2019), this Court further explained:
In proving an actor’s state of mind, the jury may rely on circumstantial
evidence and the reasonable inferences arising from that evidence; indeed, minimal
circumstantial evidence is sufficient to establish that a defendant had the intent to
kill and proceeded with deliberation and premeditation. The prosecutor may
establish premeditation and deliberation through evidence of the parties’ prior
relationship, the defendant’s actions before the killing, the circumstances
surrounding the killing itself, or the defendant’s conduct after the killing. [Citations
omitted.]
While defendant and Alkotiat stated that the confrontation that led to Rodriguez’s death
began when Rodriguez attempted to grab defendant’s penis, defendant’s and Alkotiat’s admissions
described a brutal assault, which involved dragging Rodriguez to the floor with a chain, kicking
him, and then defendant hitting him in the head with a heavy metal object. Moreover, according
to defendant’s admissions, Rodriguez was already disabled and on the ground when defendant hit
him in the head with the metal object, which permitted the jury to infer that defendant had an
opportunity to deliberate and reconsider his actions before he struck Rodriguez. Additionally,
Bonas explained at trial that Alkotiat had formulated a plan to rob Rodriguez of the Pontiac G6,
and cell phone records indicated that both defendant and Alkotiat communicated with Rodriguez
by text message on and before July 10, 2013. The jury could reasonably infer from this evidence
that defendant and Alkotiat participated in a scheme to manipulate Rodriguez into meeting with
them under the guise of hanging out while planning to kill him and steal his car. Accordingly,
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there was sufficient evidence that defendant acted with premeditation and deliberation. Although
defendant complains that the prosecution did not establish with clarity who actually killed
Rodriguez, the prosecution proceeded against defendant at trial as both a principal and an aider or
abettor, and a person who aids or abets an offense may be convicted “as if he had directly
committed such offense.” MCL 767.39.
Defendant also claims that the prosecution failed to prove beyond a reasonable doubt that
the killing of Rodriguez was not justified. Although it is necessary to prove that a killing was not
justified to prove second-degree murder, see People v Roper, 286 Mich App 77, 84; 777 NW2d
483 (2009), there is no similar requirement for first-degree murder. The trial court instructed the
jury on the lesser offense of second-degree murder (including the requirement “that the killing was
not justified”), but the jury rejected that option and instead found defendant guilty of first-degree
premeditated murder.
For these reasons, we reject defendant’s challenges to the sufficiency of the evidence in
support of his conviction of first-degree premeditated murder.
2. ARMED ROBBERY
Defendant also argues that the prosecution failed to present sufficient evidence to convict
him of armed robbery. We again disagree.
To prove the offense of armed robbery, the prosecution was required to prove:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the defendant,
in the course of committing the larceny, either possessed a dangerous weapon,
possessed an article used or fashioned in a manner to lead any person present to
reasonably believe that the article was a dangerous weapon, or represented orally
or otherwise that he or she was in possession of a dangerous weapon. [People v
Muhammad, 326 Mich App 40, 61; 931 NW2d 20 (2018) (quotation marks and
citation omitted).]
Defendant claims that the prosecution did not establish that (1) he used force or violence
against Rodriguez, or assaulted Rodriguez or put him in fear, (2) during the commission of a
larceny, and (3) while possessing a dangerous weapon. The evidence, viewed in the light most
favorable to the prosecution, Williams, 294 Mich App at 471, belies defendant’s contentions. First,
Bonas’s testimony describing how defendant and Alkotiat violently assaulted Rodriguez by pulling
him to the ground with a chain, repeatedly kicking him, and then defendant using a heavy metal
object to hit Rodriguez in the head provided ample evidence that defendant used force or violence
against Rodriguez, or assaulted or put Rodriguez in fear. Muhammad, 326 Mich App at 61.
Second, the evidence that defendant used a heavy metal object to strike Rodriguez was sufficient
to support a finding that defendant used an article fashioned as a dangerous weapon during the
assault. Third, the evidence also supported a finding that the assault occurred in the course of
committing a larceny of the Pontiac G6. Bonas testified that (1) defendant told him that he killed
someone for the car, (2) defendant was driving Rodriguez’s Pontiac G6 in the time period
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immediately following Rodriguez’s disappearance, and (3) defendant was also in possession of the
keys to the car. Defendant’s fingerprints were also found on the car. While defendant claims that
it was Alkotiat who intended to rob Rodriguez of the Pontiac G6 and that defendant did not have
any knowledge of Alkotiat’s intentions, the jury could reasonably infer from the evidence of
defendant’s active participation in the assault against Rodriguez and from defendant’s possession
of the keys and the vehicle in the period following Rodriguez’s disappearance that defendant
knowingly participated in the robbery of Rodriguez, and was guilty as either a direct principal or
as an aider or abettor.
Defendant also argues that the prosecution did not prove that Rodriguez was present during
the commission of the larceny because there was no evidence that Rodriguez was in defendant’s
home, and the cell phone evidence only placed Rodriguez in the area of Michigan and Lonyo, not
at defendant’s home. Defendant ignores that the cell phone evidence nevertheless supported a
finding that Rodriguez and defendant were in the same area at the time of Rodriguez’s
disappearance. While the cell phone evidence alone did not establish that defendant and Rodriguez
were together, Bonas’s testimony about defendant’s and Alkotiat’s admissions permitted the jury
to find that defendant and Rodriguez met in person, leading to the attack and robbery.
Finally, while defendant asserts that there was no evidence of an aggravated or serious
injury to Rodriguez, this is factually inaccurate given that Rodriguez was killed. More
significantly, however, whether Rodriguez suffered a serious injury is not legally relevant. MCL
750.529 does not require that a robbery victim sustain an aggravated or serious injury. The jury
was only required to find that, in the course of committing a larceny, defendant used force or
violence against Rodriguez, or assaulted him and put him in fear, while in possession of a
dangerous weapon. Muhammad, 326 Mich App at 61. As explained, ample evidence was
presented to support these elements.
3. MUTILATION OF A DEAD BODY
Defendant argues that the evidence was insufficient to convict him of mutilation of a dead
body because the only evidence supporting the commission of this crime was the testimony of
Bonas, who was not credible. We disagree.
“A defendant is guilty of mutilation of a human body under MCL 750.160 if the defendant
(1) without any legal authorization to do so, (2) causes permanent damage to a portion of a dead
body, defaces a portion of a dead body by marring its appearance, or removes or carries away from
the whole a portion of a dead body.” People v Bass, 317 Mich App 241, 271; 893 NW2d 140
(2016). Rodriguez’s body had been badly burned and Bonas testified that defendant admitted
killing Rodriguez and then using starter fluid to light Rodriguez’s body on fire. This evidence was
sufficient to prove that defendant, without legal authorization, caused permanent damage to and
defaced Rodriguez’s dead body. The thrust of defendant’s argument is that Bonas’s testimony was
not credible. Defendant suggests that it was actually Bonas who was involved in the robbery and
murder of Rodriguez. In Baskerville, ___ Mich App at ___; slip op at 3, this Court explained:
[A]lthough it is sometimes appropriate for a court to remove a credibility
assessment from the jury’s consideration, such circumstances are extremely rare
and require testimony that borders on being impossible. Otherwise, only the jury
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may determine the credibility of a witness or the weight to be afforded any
evidence, and it may convict a defendant based solely on the testimony of an
accomplice. [T]he credibility of witnesses is a matter of weight, not sufficiency.
[Quotations marks and citation omitted.]
The testimony of Bonas did not “border[] on being impossible.” Id. On the contrary, key
portions of Bonas’s testimony was corroborated by other evidence. For instance, there was cell
phone evidence substantiating defendant’s and Alkotiat’s history of communications with
Rodriguez, and cell phone evidence placing (1) defendant and Rodriguez in the same area at the
time of Rodriguez’s disappearance and (2) defendant near the location of Rodriguez’s body and
the location where the police discovered the Pontiac G6. Moreover, the medical evidence showed
that Rodriguez’s hyoid bone was fractured, which was consistent with Bonas’s description of a
chain being placed around Rodriquez’s neck to pull him to the ground. Further, Bonas testified
that defendant and Alkotiat told him that they wrapped Rodriguez’s body in a sheet and placed it
in the trunk of the Pontiac G6. The police discovered blood in the trunk that matched Rodriquez’s
DNA profile. According to Bonas, defendant also told him that he doused Rodriguez’s body with
starter fluid and lit it on fire, and Rodriquez’s body had been badly burned when it was discovered.
In sum, there is no basis for this Court to substitute its judgment for that of the jury regarding
Bonas’s credibility. The evidence was sufficient to support defendant’s conviction of mutilation
of a dead body.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant raises several claims of ineffective assistance of counsel, all of which are
without merit.
Because this Court denied defendant’s motion to remand, our review of his ineffective-
assistance claims is limited to errors apparent from the record. People v Foster, 319 Mich App
365, 390; 901 NW2d 127 (2017). Whether a defendant received the effective assistance of counsel
is a mixed question of law and fact. People v Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015).
As our Supreme Court explained in People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018):
Under Strickland v Washington, [466 US 668; 104 S Ct 2052; 80 L Ed 2d 674(1984),] establishing ineffective assistance requires a defendant to show (1) that
trial counsel’s performance was objectively deficient, and (2) that the deficiencies
prejudiced the defendant. Prejudice means a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. [Quotation marks omitted.]
This Court reviews trial counsel’s performance against the presumption that trial counsel’s
performance was effective, and the onus falls on the defendant to overcome “the strong
presumption” that trial counsel’s challenged actions resulted from sound trial strategy. Cooper,
309 Mich App at 80. This Court will refrain from second-guessing trial counsel’s performance
with the benefit of hindsight. People v Rosa, 322 Mich App 726, 742; 913 NW2d 392 (2018).
The defendant is responsible for establishing the factual predicate of his claim. Anderson, 322
Mich App at 628.
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1. FAILURE TO IMPEACH BONAS WITH HIS PRIOR TESTIMONY?
Defendant first argues that trial counsel performed deficiently by failing to impeach Bonas
with his prior testimony at an investigative-subpoena proceeding that he had been in the area of
defendant’s home earlier in the day before Rodriguez disappeared. Defendant also faults trial
counsel for not impeaching Bonas with his preliminary examination testimony that, at the time
Rodriguez disappeared, he was using three different cell phones.
At trial, Bonas testified that he met up with defendant and Alkotiat in southwest Detroit at
2:00 or 3:00 a.m. on July 11, 2013. Defendant argues that defense counsel performed deficiently
by failing to impeach this timeline with evidence that Bonas testified at the prior investigative-
subpoena proceeding that he drove to defendant’s southwest Detroit neighborhood between 7:00
p.m. and 10:00 p.m. on July 10, 2013, but visited another friend first before going to hang out with
defendant and Alkotiat, and the trio left the Pontiac G6 on Florida Street before midnight. On
appeal, defendant has not produced Bonas’s investigative-subpoena testimony. Defendant has
therefore failed to establish the factual predicate of his claim and is not entitled not relief.
Turning to defendant’s challenge to Bonas’s multiple-cell-phone testimony, at defendant’s
preliminary examination, Bonas testified that he gave the police three cell phone numbers that he
may have been using in July 2013, but he was not sure which phone he was using at the time. One
of those numbers, which ended in 6042, was a prepaid cell phone. Although defendant complains
that trial counsel performed deficiently by not impeaching Bonas with his preliminary examination
testimony about being unsure which cell phone he was using at the time of Rodriguez’s
disappearance, Bonas gave similar testimony at trial that he could not recall the phone number that
he was using in July 2013. He acknowledged, however, that he gave a statement to the police on
July 21, 2013, and at that time he gave the police the 6042 number. After reviewing his police
statement at trial, he agreed that he was using the 6042 number during the time period relevant to
this case. Sergeant Wight likewise confirmed that Bonas identified the 6042 number as his phone
number when he gave his police statement. Although Bonas testified at the preliminary
examination that he informed the police of three different phone numbers he may have been using,
his actual statement referred to only the 6042 number. On cross-examination, trial counsel did
question Bonas about whether he was using any other phone numbers in July 2013. Bonas initially
responded, “No, I don’t remember, no,” but then admitted, “I may have.” Although counsel did
not ask Bonas specifically about the other numbers that he mentioned in his preliminary
examination testimony, that decision was not objectively unreasonable in light of the evidence that
only the 6042 number was mentioned in Bonas’s police statement and that counsel was successful
in eliciting Bonas’s admission that he may have been using other numbers.
Defendant’s assertion that he was prejudiced by counsel’s failure to use Bonas’s
preliminary examination testimony about other cell phone numbers he may have been using in
July 2013—because such testimony could have discredited the cell phone evidence that was
presented at trial—is unpersuasive. Initially, such testimony would not have had any impact on
the cell phone evidence that showed that Rodriquez’s and defendant’s cell phones were in the same
area of defendant’s neighborhood on the afternoon that Rodriguez disappeared, or the evidence
that showed that after midnight on July 11, 2013, defendant’s cell phone was in the same area
where Rodriguez’s body was discovered. The preliminary examination testimony also would not
have discredited the evidence showing that the cell phone associated with the 6042 number was
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not in the Detroit area on the afternoon of July 10 or shortly after midnight on July 11. At most,
it may have allowed the jury to find that Bonas was using a different cell phone on July 10, 2013,
and therefore, the cell phone mapping evidence associated with the 6042 number did not reliably
establish Bonas’s actual locations on those dates. As noted, however, defense counsel successfully
elicited Bonas’s admission that he may have been using other cell phones in July 2013. The jury
was free to rely on that admission to discount the reliability of the 6042 number as a basis for
tracking Bonas’s location in July 2013. Because the preliminary examination testimony would
have served that same purpose, defendant has not established that he was prejudiced by counsel’s
failure to use the preliminary examination testimony at trial.
2. COUNSEL’S CROSS-EXAMINATION OF BONAS
Defendant next argues that trial counsel performed deficiently because he did not question
Bonas about his inability to identify defendant’s home only days after the alleged crimes.
Defendant also criticizes trial counsel for not questioning Bonas about being “forced” to testify by
the prosecution, or about whether Bonas was facing serious charges in an unrelated case and may
have agreed to testify in this case in exchange for dismissal of these charges. The record does not
support any of these claims.
At trial, Sergeant Wight testified that after Bonas gave his police statement, the two of
them drove to defendant’s neighborhood, and Sergeant Wight asked Bonas to point out defendant’s
house. Bonas pointed to some similar looking houses, but was not able to specifically identify
defendant’s home. On cross-examination, defense counsel questioned Bonas about the address of
defendant’s home, and Bonas admitted that he could not recall the address. Throughout his cross-
examination of Bonas, trial counsel questioned Bonas in a manner clearly intended to impeach his
credibility by (1) suggesting that it was Bonas who was involved in Rodriguez’s robbery and
homicide, (2) highlighting the amount of marijuana and alcohol Bonas had consumed, both while
with Alkotiat and defendant as well as before he met up with them in the early morning hours of
July 11, 2013, and (3) questioning his failure to call the police after defendant and Alkotiat
confessed to killing Rodriguez. Moreover, during closing argument, defense counsel seized upon
the evidence that Bonas failed to positively identify defendant’s house to Sergeant Wight by
suggesting that Bonas did so intentionally because he was worried that the police might find
evidence there linking him to Rodriguez’s death. Counsel argued:
[Sergeant Wight] says take me to where [defendant] lives. Now this gets
very interesting. Because they go to a general neighborhood. It may be that house
or it may be that house. Or it may be that house. I am not sure. I am not sure.
Although we don’t have enough to go inside these houses. Oh, it would be very
difficult to get a search warrant to go into these houses. Really?
* * *
Why is it that Bonas committed this homicide that he doesn’t want anybody
to know where it occurred? Because you just might recover the tree stand, that was
used by Bonas to hit the person in the head with his fingerprints on it. Do you
remember how this all got started? He ran to the police because he was afraid his
fingerprints would be found on it. And that’s the last item in the world that Bonas
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wanted the police to recover is that tree stand, probably with the deceased blood on
it, and probably with fingerprints on it. And that’s why he played this game with
the officer in charge.
In sum, while defense counsel may not have questioned Bonas in the manner preferred by
defendant, the record discloses that counsel did question Bonas about his familiarity with
defendant’s house, the jury was aware that Bonas had failed to positively identify defendant’s
house to Sergeant Wight, and defense counsel seized on this evidence to argue that it supported
the defense theory that Bonas was a participant in this offense. Defendant has not overcome the
presumption that trial counsel’s handling of this issue was sound trial strategy, Cooper, 309 Mich
App at 80, or demonstrated that counsel’s performance fell below an objective standard of
reasonableness.
Defendant also argues that trial counsel was ineffective for not cross-examining Bonas
about being coerced to testify, or questioning him about other criminal charges he was facing.
Again, the record does not support defendant’s argument that counsel performed deficiently. The
record reveals that, on cross-examination, defense counsel questioned Bonas about his motives for
going to the police, his admitted reluctance to testify, and his reasons for securing the
representation of counsel. On redirect examination, Bonas commented that he sought legal
representation “pretty much when I was being forced to testify.” Defense counsel also inquired of
Bonas whether he was facing any charges related to this case, or whether he anticipated that the
prosecution would file any such charges following his testimony.
Defendant has attached to his Standard 4 brief a copy of the register of actions in an
unrelated case, which indicates that on September 13, 2013, Bonas was charged with carjacking,
MCL 750.529a, armed robbery, MCL 750.529, and felonious assault, MCL 750.82, but defendant
does not provide any information regarding the disposition of these charges. Throughout Bonas’s
testimony, on both direct and cross-examination, there was no indication that he was testifying
under any agreement with the prosecution relating to either this case or some other case, and no
evidence to the contrary has been presented. Given that trial counsel extensively and thoroughly
questioned Bonas regarding his reasons for (1) reporting these crimes to the police, (2) cooperating
with the prosecution, and (3) securing legal counsel, and there is no evidence that Bonas in fact
testified pursuant to any agreement with the prosecution, there is no basis for concluding that trial
counsel’s questioning of Bonas was objectively unreasonable.
Further, with respect to any charges Bonas may have been facing in other cases, defendant
has not demonstrated that such evidence would have been admissible. Evidence of a witness’s
prior arrests or charges for offenses that do not result in conviction generally is inadmissible for
impeachment, People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), unless relevant to
show bias or motive for testifying, People v Layher, 464 Mich 756, 767; 631 NW2d 281 (2001).
Defendant has presented evidence that Bonas was charged in another matter, but he does not
explain how this evidence was relevant to this case. There is no evidence that Bonas received any
special consideration in any other matter because of his testimony in this case. Accordingly,
defendant has not demonstrated that counsel was ineffective for failing to question Bonas about
other criminal charges.
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3. FAILURE TO OBJECT TO OFFICER KEVIN KING’S TESTIMONY
Defendant also argues that defense counsel was ineffective for not objecting to Officer
King’s testimony that he saw blood on the Pontiac G6. We disagree.
Contrary to what defendant argues, the record reflects that trial counsel did object to Officer
King’s characterization of the substance he observed in various areas of the Pontiac G6 as blood.
Moreover, on cross-examination, counsel elicited testimony clarifying that Officer King could not
positively identify the substance as blood, but only as suspected blood. Given these efforts, trial
counsel’s performance did not fall below an objective standard of reasonableness. Furthermore,
defendant was not prejudiced by Officer King’s testimony because additional evidence was
presented that the substance collected from the Pontiac G6 was later tested and confirmed to be
human blood, which matched Rodriguez’s DNA profile.
We also reject any suggestion that Officer King’s testimony allowed the prosecutor to
argue in closing argument that defendant’s fingerprints were found on the Pontiac G6, which also
contained Rodriguez’s blood. This argument was not dependent upon Officer King’s testimony.
Rather, it was supported by the testimony of other witnesses who testified that a fingerprint found
on the Pontiac G6 matched defendant’s print, and that the substance in the wheel well of the
Pontiac G6 was tested and determined to be blood, which was consistent with Rodriguez’s DNA
profile. Therefore, defendant’s claim of ineffective assistance of counsel as it relates to Officer
King’s testimony is without merit.
In sum, the record does not support defendant’s multiple claims of ineffective assistance
of counsel.
C. PROSECUTORIAL MISCONDUCT
Defendant also raises several claims of prosecutorial misconduct, none of which were
preserved with an appropriate objection at trial. We review unpreserved claims of prosecutorial
misconduct for plain error affecting the defendant’s substantial rights. Clark, 330 Mich App at
433.
This Court reviews claims of prosecutorial misconduct on a case-by-case basis by
examining the record and evaluating the prosecution’s remarks in context to determine whether
the defendant was denied a fair and impartial trial. People Caddell, ___ Mich App ___, ___; ___
NW2d ___ (2020) (Docket Nos. 343750 & 343993); slip op at 22; People v Jackson (On
Reconsideration), 313 Mich App 409, 425-426; 884 NW2d 297 (2015). A prosecutor’s comments
must be evaluated “in light of defense counsel’s arguments and the relationship of [the] comments
to the admitted evidence.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). “Curative
instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial
statements.” Id.
1. USE OF PERJURED TESTIMONY TO SECURE A CONVICTION
Defendant argues that the prosecution presented false testimony from Bonas with regard
to the timeline of his whereabouts on July 10, 2013, and the early morning hours of July 11, 2013.
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Defendant asserts that Bonas’s trial testimony was false because it was inconsistent with testimony
he gave during an investigative-subpoena proceeding on October 25, 2013.
In Giglio v United States, 405 US 150, 151-152; 92 S Ct 763; 31 L Ed 2d 104 (1972), the
United States Supreme Court recognized that if a prosecutor acts to deliberately deceive the court
and the jury by presenting evidence to the court and jury that it knows to be false, or allows false
testimony to go uncorrected when it is put forth, such action or inaction is inconsistent with the
basic requirements of due process. See also Napue v Illinois, 360 US 264, 267, 272; 79 S Ct 1173;
3 L Ed 2d 1217 (1959) (reversing a conviction where the prosecution used false testimony that
“may have had an effect on the outcome of the trial”). This rule also applies to evidence that is
relevant to the credibility of a witness. People v Smith, 498 Mich 470, 476; 870 NW2d 299 (2015).
As noted earlier, defendant has not provided a copy of Bonas’s investigative-subpoena
testimony. Therefore, he has not established factual support for his argument that Bonas’s
testimony at trial was inconsistent with his prior investigative-subpoena testimony. Even
assuming, however, that Bonas’s timeline testimony at the investigative-subpoena proceeding was
inconsistent with his trial testimony, defendant would not be entitled to relief. The record reveals
that Bonas admitted at trial that he was not sure of the exact time that he met up with defendant
and Alkotiat, and that it was only after having an opportunity to review his cell phone records that
he became aware that he did not arrive in southwest Detroit until the early morning hours of July
11, 2013. To the extent that Bonas’s testimony at trial may have conflicted with testimony he gave
at the prior investigative-subpoena proceeding, that alone does not demonstrate that his trial
testimony was false, let alone that the prosecutor knew it was false. See, e.g., Bass, 317 Mich App
at 275 (stating that “an inconsistent prior statement . . . is not definitive evidence that the trial
testimony is false”). Indeed, cell phone mapping evidence for the cell phone that Bonas claimed
he was using at the time of the offense corroborated his trial testimony regarding his travels on
July 10 and July 11, 2013. Therefore, the prosecutor had an independent basis for believing that
Bonas’s trial testimony was true, and there is no basis for concluding that the prosecutor knowingly
allowed Bonas to present false testimony at trial with respect to this matter. Accordingly,
defendant has not established a plain error.
2. STATING FACTS NOT IN EVIDENCE
Defendant also argues that the prosecutor referenced facts not supported by the evidence
in both her opening statement and closing argument. We disagree.
In People v Johnson, 315 Mich App 163, 199-201; 889 NW2d 513 (2016), this Court
explained the duties of a prosecutor during opening statements and closing arguments:
The appropriate time for a prosecutor to state what evidence will be submitted and
what he intends to prove at trial is during opening statements. People v Meissner,
294 Mich App 438, 456; 812 NW2d 37 (2011). When a prosecutor states that
evidence will be submitted, and the evidence is not presented, reversal is not
warranted if the prosecutor did so acting in good faith. People v Johnson, 187 Mich
App 621, 626; 468 NW2d 307 (1991). With regard to closing arguments, “[a]
prosecutor may not make a factual statement to the jury that is not supported by the
evidence,” but a prosecutor “is free to argue the evidence and all reasonable
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inferences arising from it as [it] relate[s] to . . . [the] theory of the case.” People v
Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007). Furthermore, a prosecutor
may not inject into trial his personal beliefs or opinions of a defendant’s guilt.
People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010).
Defendant first accuses the prosecutor of misrepresenting in both her opening statement
and closing argument that “there was blood on the trunk where [defendant’s] fingerprints were.”
Contrary to defendant’s assertion, the prosecutor clearly stated in her opening statement that
Rodriguez’s blood was found “[i]n the wheel well” of the Pontiac G6, and defendant’s fingerprints
were found “on that trunk.” These remarks were supported by the evidence presented at trial. In
her closing argument, the prosecutor broadly referenced the victim’s car as an object where both
defendant’s fingerprints and the victim’s blood were found, which again was an accurate statement
of the evidence presented at trial. Thus, there is no merit to this claim of prosecutorial misconduct.
Defendant next argues that the prosecutor, during closing argument, mischaracterized
statements that defendant made during a recorded phone call from the county jail. The record
reveals that two of defendant’s recorded calls from jail were played at trial. In response to a request
from this Court for the exhibit of those recorded calls, defendant submitted a flash exhibit drive
containing more than 100 recorded calls that are not numbered or identifiable by date. Defendant
did not identify the two calls that were played at trial and our efforts to identify the two calls have
not been successful. Regardless, defendant is not entitled to relief. As noted, there was no
objection to the prosecutor’s characterization of defendant’s statements during the recorded call.
To the extent that the prosecutor may not have accurately characterized defendant’s statements
during that call, a curative instruction upon timely objection could have rectified any perceived
prejudice. People v Roscoe, 303 Mich App 633, 649; 846 NW2d 402 (2014); Seals, 285 Mich
App at 22. Even without an objection, the trial court instructed the jury that “the lawyers’
statements and arguments are not evidence” and that the jury “should only accept things the
lawyers have said that are supported by the evidence.” This instruction was sufficient to protect
defendant’s substantial rights. Therefore, defendant is not entitled to relief with respect to this
unpreserved claim of prosecutorial misconduct.
Defendant next argues that when discussing the offense of armed robbery to the jury, the
prosecutor erroneously stated that the Pontiac G6, and the keys to the car, were taken by defendant
from Rodriguez. We disagree. At trial, Rodriguez’s wife testified that Rodriguez was driving the
Pontiac G6 when he left for work on the morning of July 10, 2013. The vehicle was discovered
two days later on Florida Street in southwest Detroit. Bonas testified that defendant and Alkotiat
asked him to accompany them to drive the Pontiac G6 to Florida Street, and that defendant was
driving the car and holding the keys. Defendant also told Bonas that he killed Rodriguez for the
Pontiac G6. This evidence, and reasonable inferences arising from it, supported the prosecutor’s
statement that the evidence would show that defendant took the Pontiac G6 and its keys from
Rodriguez.3
3
Likewise, for the same reasons, and given Bonas’s testimony regarding how defendant admitted
to assaulting Rodriguez, defendant’s challenge to the prosecutor’s statement when arguing against
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Defendant also argues that the prosecutor erroneously argued at trial that defendant
intended to kill Rodriguez, that he used force to do so, and that he acted with premeditation. We
again disagree. Bonas testified that Alkotiat had told him that weeks before Rodriguez was killed
he met a man who drove a Pontiac G6 and he planned to rob him of the car. Alkotiat reminded
Bonas of this earlier conversation on the night of Rodriguez’s killing, and defendant was present
during this conversation. And according to Bonas, both Alkotiat and defendant recounted how
they had killed Rodriguez that night, explaining that Alkotiat wrapped a chain around Rodriguez’s
neck, pulled him to the ground, and Alkotiat and defendant both repeatedly kicked him, and then
defendant grabbed a heavy metal object and struck Rodriguez in the head. Bonas also testified
that defendant told him that “[defendant] got the car by killing somebody.” Defendant and Alkotiat
then took Rodriguez’s body, covered in a sheet, to a nearby location and burned it using starter
fluid. This evidence, and reasonable inferences arising from the evidence, supported the
prosecutor’s arguments that defendant intended to kill Rodriguez and did so with premeditation.4
To the extent that defendant also argues that trial counsel was ineffective for not objecting
to the prosecutor’s arguments, we reject this claim because the prosecutor’s arguments were not
improper and trial counsel was not required to raise a meritless objection. Ericksen, 288 Mich
App at 201.
3. VOUCHING FOR CREDIBILITY
Defendant next argues that the prosecutor impermissibly vouched for the credibility of
Bonas and the propriety of the police investigation during closing argument. We disagree.
A prosecutor is not permitted to vouch for the credibility of a witness by suggesting to the
jury that the prosecution possesses special knowledge that the witness is testifying truthfully.
Clark, 330 Mich App at 434. However, a prosecutor is not precluded from arguing based on the
evidence that a witness is worthy of belief. Id.
After reviewing the prosecutor’s challenged remarks, we conclude that the prosecutor did
not impermissibly vouch for Bonas’s credibility. The prosecutor’s comments regarding Bonas’s
circumstances, including his consultation of friends and family members, the factors that made
him decide to eventually go to the police, how he was treated after doing so, and the delays in
prosecuting this case were all matters of evidence at trial and the prosecutor’s statements were
consistent with the trial testimony. The prosecutor did not suggest in any of the challenged remarks
that she possessed special knowledge, unknown to the jury, that Bonas’s testimony was truthful.
Accordingly, defendant has not established that the prosecutor’s remarks were improper.
a directed verdict motion that defendant used force to take the keys to the Pontiac G6 to rob
Rodriguez of the car is also without merit.
4
Similarly, defendant’s contention that the prosecutor erroneously argued in response to
defendant’s motion for a directed verdict that defendant admitted using an object with force against
Rodriguez is without merit, given Bonas’s testimony that defendant told him that he used a heavy
metal object to beat Rodriguez over the head.
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Defendant also argues that the prosecutor improperly urged the jury to “take Bonas’s word”
regarding the circumstances of Rodriguez’s killing, and mischaracterized the evidence when
stating that defendant’s statements during his own police interview corroborated Bonas’s
testimony. We again disagree.
The record discloses that the prosecutor argued to the jury, in reference to Bonas’s
testimony, that it was not required to merely take Bonas’s word for it because other evidence
corroborated many aspects of his testimony. Further, the prosecutor commented on defendant’s
statements during his recorded police interview, which we have reviewed. The prosecutor did not
mischaracterize defendant’s statements during that interview, which the prosecutor observed
revealed many details that were consistent with the circumstances surrounding Rodriguez’s killing
as related by Bonas. The prosecutor was permitted to argue that the body of evidence presented
at trial demonstrated that Bonas’s testimony was credible and that defendant’s statements during
his recorded interview contained “kernels of truth” that demonstrated his participation in
Rodriguez’s death. Defendant has not established that these comments were improper.
Defendant also challenges several of the prosecutor’s remarks during rebuttal argument.
These remarks did not involve vouching for Bonas’s credibility, but rather were responsive to
defense counsel’s attacks on Bonas’s credibility and the competency of the police investigation.
The prosecutor’s remarks were supported by the evidence and, considered in the context of defense
counsel’s arguments, Seals, 285 Mich App at 22, were not improper.
In sum, defendant has not demonstrated any plain error involving the prosecutor’s conduct
at trial. Furthermore, having concluded that the prosecutor’s remarks were not improper, we also
reject defendant’s related claim that trial counsel was ineffective for not objecting to the remarks.
Counsel is not required to raise a meritless objection. Ericksen, 288 Mich App at 201.
4. ELICITING FALSE TESTIMONY FROM SERGEANT WIGHT
Finally, defendant argues that the prosecutor engaged in misconduct by failing to correct
Sergeant Wight’s false testimony that a telephone number ending in 0050 was for a phone
registered to defendant. We disagree.
As defendant correctly recognizes, in Smith, 498 Mich at 475-476, our Supreme Court
explained that “[i]t is inconsistent with due process when the prosecution allows false testimony
from a state’s witness to stand uncorrected,” and the prosecutor is not permitted to knowingly use
false testimony to obtain what will ultimately result in a tainted conviction. When false testimony
is elicited, the prosecutor bears an affirmative duty to correct the false testimony, particularly if
the testimony concerns any “remuneration for a witness’s cooperation.” Id. at 476. However, as
the Court in Smith acknowledged, “ ‘not every contradiction is material,’ ” and the prosecution is
not required to correct false or incorrect testimony every time it is elicited. Id. at 476, quoting
United States v Martin, 59 F3d 767, 770 (CA 8, 1995). For due-process purposes, the pivotal
inquiry is the impact of the prosecution’s failure to correct the false testimony; the right to due
process is particularly undermined when the prosecution capitalizes on the use of false testimony
because such conduct buttresses the deceptive use of the untruthful testimony. Smith, 498 Mich
at 476.
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At trial, during the prosecutor’s direct examination of Sergeant Wight, the prosecutor
elicited testimony that Rodriguez’s cell phone records indicated that during the time period
preceding his disappearance, he exchanged text messages with a phone number ending in 0050 in
which the messages referenced the names of both Moose and Drew, which were Alkotiat’s and
defendant’s nicknames. At issue here is the following exchange:
Q. The name on that account was not Hameer Alkotiat; is that true?
A. That is correct.
Q. And it was Andrew Czarnecki?
A. That is correct.
Q. But you did have this number making calls—or making text messages
to the victim’s phone identifying as Drew and Moose?
A. That is correct.
Defendant argues on appeal that Sergeant Wight falsely testified that the name on the
account for the 0050 number was his name, and the prosecutor failed to correct this false testimony.
Although the transcript does reflect that Sergeant Wight identified defendant as the person whose
name was on the account, we question the accuracy of the transcription considering the
surrounding content. In particular, immediately after apparently confirming that the phone number
did belong to defendant, the prosecutor nonetheless asked Sergeant Wight “[b]ut you did have this
number making calls—or making text messages to the victim’s phone identifying as Drew and
Moose?” Regardless, after the prosecutor elicited this testimony, she elicited other testimony
indicating (1) that the 0050 number was in fact registered to a different person, and (2) that a
different number, one ending in 5322, belonged to defendant, and that it was the 5322 number that
was used to track defendant’s cell phone activity during the relevant time period. Moreover, during
closing argument, the prosecutor did not highlight or capitalize the allegedly false testimony by
Sergeant Wight that the 0050 number was registered to defendant, but instead stated that this phone
number was registered to a different person. Therefore, to the extent that Sergeant Wight’s isolated
response was false, the record clearly reflects that the prosecutor did not deliberately and
knowingly seek to mislead the jury into believing that the 0050 number was for a phone registered
to defendant in an attempt to obtain a tainted conviction. Smith, 498 Mich at 475-476. Indeed, the
prosecutor elicited evidence to the contrary and argued otherwise in closing argument. Therefore,
defendant has not demonstrated that the prosecutor’s conduct with respect to Sergeant Wight’s
testimony violated due process.
We also reject defendant’s claim of ineffective assistance of counsel related to this issue.
Even if an objection by defense counsel may have been appropriate, considering the other evidence
introduced by the prosecutor indicating that the 0050 number was in fact for a phone registered to
another person, and that the prosecutor argued likewise in closing argument, there is no reasonable
probability that defendant was prejudiced by trial counsel’s failure to object to Sergeant Wight’s
isolated testimony.
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D. CUMULATIVE ERROR
Finally, defendant argues that the cumulative impact of many errors in this case warrants
reversal of his convictions. We disagree. As this Court observed in People v Knapp, 244 Mich
App 361, 387; 624 NW2d 227 (2001), we review a defendant’s claim of cumulative error to
determine if the cumulative effect of the claimed errors were seriously prejudicial to deny the
defendant a fair trial. In this case, having rejected defendant’s various claims of error, there can
be no cumulative effect that operated to deny defendant a fair trial. Therefore, defendant’s claim
that the cumulative effect of multiple errors undermined his right to a fair trial is unavailing.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Cynthia Diane Stephens
/s/ Mark T. Boonstra
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