People of Michigan v. Eric Gala ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 5, 2017
Plaintiff-Appellee,
v No. 334584
Macomb Circuit Court
ERIC GALA, LC No. 2014-000198-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 335618
Macomb Circuit Court
ERIC GALA, LC No. 2014-000198-FH
Defendant-Appellee.
Before: O’BRIEN, P.J., and JANSEN and STEPHENS, JJ.
PER CURIAM.
In Docket No. 334584, a jury convicted defendant of vulnerable adult abuse in the second
degree, MCL 750.145n(2), involving the care of his mother Norma Gala while he was her
guardian and conservator. Defendant was found not guilty of a second count of vulnerable adult
abuse involving the care of his father Chester, Sr. Gala while he was his guardian and
conservator. The jury was hung on the third count of embezzlement from a vulnerable adult
$100,000 or more, MCL 750.174a(7)(a), in regards to Norma. Defendant was sentenced to six
months in the Macomb County Jail. Defendant appeals as of right the trial court’s July 21, 2016
order denying defendant’s post-conviction motions for a new trial based on prosecutorial
misconduct, ineffective assistance, and violation of the right to confrontation. He also appeals
the court’s post-conviction denial of his motions for a Ginther hearing, as well as his motion to
vacate his conviction based on insufficient evidence.
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In Docket No. 335618, the prosecutor appeals by leave granted1 the trial court’s October
19, 2016 order denying the prosecutor’s motion in limine to admit evidence of Norma’s living
conditions in the retrial of the embezzlement charge.
We affirm in both appeals.
I. BACKGROUND
Defendant’s parents were Chester, Sr. and Norma Gala. Defendant was appointed
Norma’s guardian on July 2, 2008, and Chester, Sr.’s guardian on March 29, 2010. Norma and
Chester, Sr. moved from their Florida home and into the family owned Flamingo Motel in the
city of Fraser, Michigan in August 2008. On November 6, 2013, a former employee of the
Motel contacted the Fraser police department to report that defendant’s parents were living in
filthy conditions and that Norma was tethered to furniture. The officers responded, called an
ambulance and had Chester, Sr. and Norma removed from the Motel and transported to Henry
Ford Hospital. They were placed in nursing care after their discharge from the hospital.
II. PROCEDURAL HISTORY
Defendant was initially charged with two counts of vulnerable adult abuse in the second
degree – one for each of his parents based upon the living conditions in which they were found
on November 6, 2013. There were several pre-trial motions. On December 18, 2014, defendant
filed pretrial motions to dismiss for failure to preserve evidence, and to suppress the seizure of
Norma and Chester, Sr. However, when the prosecutor moved to amend the information to add
one charge of embezzlement regarding Norma, the case was remanded to the district court for a
preliminary examination, and months passed before the December defense motions were heard.
On June 11, 2015, the prosecutor moved to disqualify defendant’s counsel Timothy Barkovic,
under Michigan Rule of Professional Conduct (MRPC) 3.7, because the prosecutor intended to
call Barkovic in the embezzlement case as a witness regarding the source and amount of his
retainer. Defendant argued that defense counsel was not a “necessary” witness under MRPC 3.7
because counsel’s testimony would merely relate to receipt of the funds, which was an
uncontested matter, and that he had no information regarding the source of those funds, which
was the relevant contested issue. On July 6, 2015, the court granted the prosecutor’s motion. On
July 24, 2015, defendant moved the court for reconsideration of its order disqualifying Barkovic.
The court held a hearing on that motion and appointed attorney Derek Girwood for the limited
purpose of advising defendant on the potential hazards associated with having an attorney also
testify as a witness at trial. Defendant refused to consult with Girwood and an order reinstating
Barkovic was issued on August 17, 2015.
Subsequent to Barkovic’s reinstatement as counsel, the December 2014 defense motions
were heard. Defendant argued that officers intentionally destroyed the Motel’s DVR
surveillance system. The court denied the motion for dismissal based upon the intentional
spoliation of evidence but ruled that defendant could present testimony on the alleged spoliation
1
People v Gala, unpublished order of the Court of Appeals, issued January 11, 2017 (Docket No
335618).
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at trial. In support of his motion to suppress, defendant argued that on November 6, 2013,
Norma and Chester Sr. were unlawfully seized without a warrant and that the seizure was
unreasonable. The court denied that motion as well and found that defendant invited the officers
to visit his parents, that their removal from the Motel was appropriate, and that defendant
consented to the hospital of his choice.
Defendant’s trial spanned over two weeks. It was a high conflict trial with numerous
heated arguments from counsel and myriad accusations of wrongful conduct by counsel. On
December 11, 2015, the jury announced its verdict of guilty of vulnerable adult abuse regarding
Norma, not guilty of vulnerable adult abuse regarding Chester, Sr. and undecided on the
embezzlement charge. Defendant filed multiple post-conviction motions for relief that were
denied. He appeals from the order denying those motions.
In February 2016, the prosecutor refiled the embezzlement charge. In preparation for the
re-trial, the prosecutor filed a Motion in Limine to Admit Relevant Evidence. A hearing was
held on the motion on September 26, 2016. The prosecutor sought to admit evidence of Norma’s
living conditions at the motel to show that defendant kept Norma in deplorable conditions in
order to embezzle her money. The court denied the prosecutor’s motion. The court reasoned
that evidence of Norma’s living conditions would only become relevant if defendant claimed that
he spent money on Norma’s housing at the motel. The prosecutor appeals from the order
denying the motion in limine.
III. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
“This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction.” People v Perry, 317 Mich. App. 589, 599; 895 NW2d 216
(2016), app den ___ Mich ___ (2017). “[W]hen determining whether sufficient evidence has
been presented to sustain a conviction, a court must view the evidence in a light most favorable
to the prosecution and determine whether any rational trier of fact could have found that the
essential elements of the crime were proven beyond a reasonable doubt.” People v Wolfe, 440
Mich. 508, 515-516; 489 NW2d 748 (1992), amended on other grounds 441 Mich. 1201, 489
NW2d 748 (1992). “All conflicts in the evidence must be resolved in favor of the prosecution.”
People v Kanaan, 278 Mich. App. 594, 619; 751 NW2d 57 (2008). “[C]ircumstantial evidence
and reasonable inferences arising from that evidence can constitute satisfactory proof of the
elements of a crime.” People v Lee, 243 Mich. App. 163, 167-168; 622 NW2d 71 (2000). “It is
for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn
from the evidence and to determine the weight to be accorded those inferences.” People v
Hardiman, 466 Mich. 417, 428; 646 NW2d 158 (2002). “The standard of review is deferential
and this Court ‘is required to draw all reasonable inferences and make credibility choices in
support of the jury verdict.’ ” People v Powell, 278 Mich. App. 318, 320; 750 NW2d 607 (2008),
quoting People v Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000).
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B. ANALYSIS
“To establish the crime of second-degree vulnerable adult abuse, the prosecutor must
prove (1) that the defendant is a caregiver or other person with authority over the vulnerable
adult, (2) that the victim is a vulnerable adult, (3) that the defendant engaged in a reckless act or
reckless failure to act, and (4) that the reckless act or reckless failure to act caused serious
physical harm or serious mental harm to a vulnerable adult.” People v DeKorte, 233 Mich. App.
564, 567; 593 NW2d 203 (1999). For purposes of the vulnerable adult abuse statute, a
“vulnerable adult” is someone over the age of 18 “who, because of age, developmental disability,
mental illness, or physical disability requires supervision or personal care or lacks the personal
and social skills required to live independently.” MCL 750.145m(u)(i). MCL 750.145m(p)
defines “reckless act or reckless failure to act” as “conduct that demonstrates a deliberate
disregard of the likelihood that the natural tendency of the act or failure to act is to cause
physical harm, serious physical harm, or serious mental harm.” This Court has defined
“deliberate disregard” as “a conscious decision to ignore the risk of harm that would flow from
acting or failing to act.” People v Hudson, 241 Mich. App. 268, 280; 615 NW2d 784 (2000).
MCL 750.145m(r) states that, “serious physical harm” is “a physical injury that threatens the life
of a vulnerable adult, that causes substantial bodily disfigurement, or that seriously impairs the
functioning or well-being of the vulnerable adult.” “Serious mental harm” is defined in MCL
750.145m(s) as “a mental injury that results in a substantial alteration of mental functioning that
is manifested in a visibly demonstrable manner.”
Defendant does not dispute that Norma was a vulnerable adult or that defendant, as
Norma’s guardian, had authority over her. Defendant takes issue with the proofs on the third and
fourth elements of the offense. He argues that there was insufficient evidence to support his
conviction of vulnerable adult abuse for Norma because there was no evidence that he engaged
in a reckless act or reckless failure to act, nor did he exhibit conduct or a conscious decision to
proximately cause physical or serious physical harm to Norma. Defendant argues there was no
evidence that Norma had any life-threatening injuries or substantial bodily disfigurement and
that there was ample testimony that demonstrated she was well cared for.
There was sufficient evidence that the condition in which Norma was found on
November 6, 2013, was deplorable. Costales, a discharged and disgruntled employee, testified to
making a report to the police regarding Norma. Officer Poole, the responding officer,
corroborated Costales claims that the room in which Norma lived was without water, had no
direct heat, was dirty, and smelled overwhelmingly of feces and urine, like an “outhouse.”
Photographs were presented to the jury that depicted Norma and Chester, Sr. in multiple layers
of stained clothing. Hospital records note that Norma’s diaper was full and there was dried feces
along her back. Testimony was introduced that Norma slept with an orange tow strap around her
waist and when she was awake, she was frequently tethered to furniture. Photographs showed
that her toenails were long and dirty. Dirt came out of her socks when they were removed.
Officer Poole performed a turgor test and determined that Norma was dehydrated. She was in
fact diagnosed with acute renal failure, malnourishment, and had stage two pressure sores on her
hip, buttocks and feet that were caused by lack of circulation from lying in one position for too
long. There is no doubt that living in this condition seriously impaired Norma’s functioning or
well-being. MCL 750.145m(r). Testimony provided that once properly hydrated not only did
Norma’s kidney function improve, but so did her mentation.
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Defendant argues he personally did nothing to cause harm and was unaware of any harm
she suffered. His trial testimony was consistent with his argument. The evidence in this case
demonstrates that defendant delegated the responsibility for Norma’s care to his wife Angela
Gala, and Motel employees Alicia Good, Martin Krist, and Carmen Costales. However,
defendant also admitted to being at the Motel every weekday. He knew that the Motel lacked
heat and water in the room where Norma lived. He admitted to knowledge of her being tethered
to prevent her wandering and to seeing her frequently. Given the testimony that she reeked of
soil and the photographs demonstrating conditions that did not emerge overnight, the jury had
ample evidence that he either participated in her poor care or was willfully blind to the
conditions that were likely to cause harm.
Viewing the evidence in a light most favorable to the prosecution, there was sufficient
evidence for a jury to find beyond a reasonable doubt that defendant recklessly failed to act. In
other words, defendant engaged in conduct demonstrating a deliberate disregard for the
likelihood of serious physical harm that Norma would suffer because of his failure to act.
DeKorte, 233 Mich. App. at 567–568.
IV. SEVERANCE, CONFRONTATION AND DUE PROCESS OF LAW
A. PRESERVATION
The issue of severance is not preserved. “An objection based on one ground at trial is
insufficient to preserve an appellate attack based on a different ground.” People v Stimage, 202
Mich. App. 28, 30; 507 NW2d 778 (1993). Barkovic orally moved the trial court to sever the
vulnerable adult abuse counts from the embezzlement count at the motion hearing to disqualify
defense counsel to avoid a potential conflict under MRPC 3.7. The motion to sever at that time
was not based on defendant’s constitutional right to receive a fair trial on the vulnerable adult
abuse charge related to Norma and therefore was not preserved on that ground.
“For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich. App. 376, 382; 741
NW2d 61 (2007). Defendant motioned for the admission of the probate settlement agreement
multiple times. The requests were denied by the court for reasons stated on the record.
Therefore, this issue is preserved. The issue of Norma’s treatment at Autumn Woods was raised
by defendant at the beginning of trial. The trial court held the evidence was irrelevant and
denied its admission. This issue is therefore preserved.
Defendant filed a motion in limine to admit evidence of the city of Fraser Department of
Public Safety’s retaliatory conduct wherein he argued that the actions of the Fraser police
department and instant charges were motivated by ill-will and part of a pattern of continued
harassment of his family and the Flamingo Motel. At a later proceeding, the court decided the
evidence was irrelevant and denied its admission. This issue is therefore preserved.
Defendant did not move for a mistrial below, therefore that issue is not preserved.
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B. STANDARD OF REVIEW
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Katt, 468 Mich.272, 278; 662 NW2d 12 (2003). We also review for an abuse of discretion a trial
court’s decision on a motion to sever charges. People v Duranseau, 221 Mich. App. 204, 208;
561 NW2d 111 (1997). “An abuse of discretion exists when the result is so palpably and grossly
violative of fact and logic that it evidences perversity of will or the exercise of passion or bias
rather than the exercise of discretion.” Churchman v Rickerson, 240 Mich. App. 223, 233; 611
NW2d 333 (2000). “Evidentiary errors are nonconstitutional.” People v Blackmon, 280 Mich
App 253, 259; 761 NW2d 172 (2008). “[A] preserved, nonconstitutional error is not a ground
for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is
more probable than not that the error was outcome determinative.” People v Lukity, 460 Mich.
484, 495-496; 596 NW2d 607 (1999) (quotations omitted). “The trial court’s decision on close
evidentiary questions cannot ‘by definition’ be an abuse of discretion.” People v Layher, 464
Mich. 756, 761; 631 NW2d 281 (2001). Unpreserved nonconstitutional errors are reviewed for
plain error affecting defendant’s substantial rights. People v Pasha, 466 Mich. 378, 383-384; 645
NW2d 275 (2002).
C. ANALYSIS
1. SEVERANCE
Joinder of offenses is appropriate if they are related. Under MCR 6.120(B), offenses are
related if they are based on:
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
“On the defendant’s motion, the court must sever for separate trials offenses that are not related
as defined in subrule (B)(1).” MCR 6.120(C).
At the hearing on the prosecutor’s motion to disqualify counsel, Barkovic requested
severance of the embezzlement charge to eliminate any potential conflict under MRPC 3.7. The
trial court denied the request on that basis. After argument and an informal offer of proof, the
court stated, “Both are abused [sic], one physical and the other financial, of a vulnerable adult for
the same time period.” After hearing the actual testimony at trial, and in response to the
prosecutor’s motion in limine to introduce evidence of Norma’s living conditions at the retrial of
the embezzlement charge, the court opined, “I can’t believe I did that, and I did, because the two
are so separate now, having heard the testimony from the first trial.”
The court was not required to sever the embezzlement charge at the first trial because
defendant did not move the court for severance on the ground that he would not receive a fair
trial on the vulnerable adult abuse charge related to Norma. MCR 6.120(C). However, the court
had the power on its own initiative to sever charged offenses “when appropriate to promote
fairness to the parties and a fair determination of the defendant’s guilt or innocence of each
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offense.” MCR 6.120(B). We agree with the trial court’s post-trial conclusion that the
embezzlement charge should have been severed from the vulnerable adult abuse charges.
Contrary to the prosecution’s pre-trial assertions, the embezzlement charge was not based on the
same conduct as the vulnerable adult abuse charge. The vulnerable adult abuse charge involved
defendant’s conduct as Norma’s guardian and the living conditions Norma was kept in by her
guardian, while the embezzlement charge involved defendant’s conduct as conservator and the
handling of Norma’s estate assets for his own benefit. It was not until the September 26 hearing
on the prosecutor’s motion in limine, that the prosecutor agreed that all the transfers making up
the embezzlement charge predated October 6, 2013, the beginning date for the vulnerable adult
abuse claims. The charged offenses were at least one month apart and therefore not temporally
connected. See People v Tobey, 401 Mich. 141, 152; 257 NW2d 537 (1977) (offenses were
twelve days apart); See also People v Daughenbaugh, 193 Mich. App. 506, 510; 484 NW2d 690,
judgment mod, app den in part 441 Mich. 867; 490 NW2d 886 (1992) (offenses were thirteen
days apart). Lastly, there is no evidence that the acts making up the embezzlement charge were
part of single scheme or plan to neglect Norma and her living conditions. As discussed later in
this opinion, in relation to the prosecutor’s appeal, defendant’s alleged acts of embezzlement
were predicated on his control of Norma’s estate funds and the basis for his financial decisions
over a series of years predating the living conditions which formed the basis of the prosecutor’s
vulnerable adult abuse charge. The conduct involved in each was separate and not part of a
single scheme or plan. However, the trial judge’s decision to deny the severance based upon the
offer of proof and arguments made at the time was not an abuse of discretion.
Even if the denial had been an abuse of discretion, defendant cannot show that the court’s
failure to act sua sponte was outcome determinative. Defendant argues that the trying of the
embezzlement charge with the vulnerable adult abuse charges involving Norma was outcome
determinative because he was acquitted of vulnerable adult abuse against Chester, Sr. for whom
no embezzlement charge was involved. This contention ignores the differences in the evidence
regarding Chester Sr. and Norma. There was evidence of hygiene neglect, dehydration, filth of
living conditions, and quality of life for both Norma and Chester, Sr. However, Norma was
tethered to furniture, while Chester, Sr. was not. Norma also was more progressed in her
dementia and unable to communicate her needs, making her possibly more vulnerable than
Chester, Sr. Further, Norma had physical conditions of neglect like wounds and bedsores that
were not present with Chester, Sr. Thus, the fact that defendant was acquitted of the vulnerable
adult abuse of Chester, Sr. is not proof that he was only convicted of the vulnerable adult abuse
of Norma because he was also charged with embezzlement involving Norma’s estate. Defendant
cannot show that the error prejudiced him when the evidence demonstrating his guilt of
vulnerable adult abuse of Norma was overwhelming. People v Oros, ___ Mich App ___, ___;
___ NW2d ___ (2017); slip op at 9.
2. EVIDENTIARY ISSUES
Defendant also argues that several evidentiary errors denied him a fair trial. Defendant
argues he was denied a fair trial when the trial court refused his request to admit evidence of the
probate settlement, evidence of Norma’s treatment while at Autumn Woods nursing home, and
evidence of the Fraser Department of Public Safety’s bias against him.
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“Logical relevance is determined by the application of Rules 401 and 402.” People v
VanderVliet, 444 Mich. 52, 60; 508 NW2d 114 (1993), amended 445 Mich. 1205; 520 NW2d 338
(1994). MRE 401 provides the definition of relevant evidence as
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.
MRE 402 provides:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State of Michigan, these
rules, or other rules adopted by the Supreme Court. Evidence which is not
relevant is not admissible.
It is within the trial court’s discretion to exclude relevant evidence “if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” People v Blackston, 481 Mich. 451, 461; 751 NW2d 408 (2008)
quoting MRE 403.
Defendant argues that the trial court should have allowed Michael Taylor, defendant’s
probate attorney, to testify that defendant’s amended accountings were accepted as filed in the
probate court, and presented the jury with the probate settlement records in response to questions
it asked during deliberations. Defendant asserts that the records would have shown that his
amended accountings were approved and that he was owed money from Norma’s estate, which
would have defended against the embezzlement charges. The court essentially made three
rulings regarding the probate settlement agreement. The first ruling was that the agreement was
not relevant to the criminal proceedings. During the testimony of Robert Cella, successor
conservator for Norma and Chester, Sr., the court determined that the probate court settlement
was not relevant to the criminal proceedings because the probate court considered expenses that
were permitted in the probate matter that were not at issue in the criminal case. The court
explained that any expenditures that were approved as appropriate would be relevant and that
those could be shown independent of the settlement agreement. The court allowed defendant to
offer the settlement as an offer of proof that there was a settlement in the probate case and to
mark it as a proposed exhibit and make it part of the court file. The second ruling was that the
agreement did not represent that defendant’s amended accountings were approved, only that they
were accepted. The third ruling was that it would be prejudicial to defendant for the jury to
review the entire settlement agreement.
None of the court’s rulings can be interpreted as an abuse of discretion. The settlement
agreement was not relevant to defendant’s criminal case. The embezzlement charge concerned
specific transactions that defendant made while he was guardian of Norma and conservator of the
estate of Norma. The settlement agreement did not account for the expenses claimed by
defendant nor did it explain the transactions that were the focus of embezzlement. The
settlement agreement also did not provide that defendant’s accountings were approved.
Defendant made multiple attempts to persuade the court that “accepted as filed” was
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synonymous with “approved” however, independent inquiry proved otherwise. Three questions
came from the jury during deliberations:
1) Can estate accountings be retroactively amended to reflect conservator
reimbursement? If so, is there a time limit for filing such amendments, and what
is the time limit?
2) Is a conservator allowed to defer reimbursement from an estate for multiple
years after expending funds and then claim them in later years [sic] accountings?
3) Are conservators’ expenditures on behalf of a ward eligible for reimbursement
if they were expended prior to the conservatorship being granted or established?
Defendant sought to present the jury with the settlement agreement in response to its questions.
Again, the court refused to give the jury the probate settlement agreement to review. The court’s
decision was not an abuse of discretion. The jury’s questions all clearly regarded the procedure
for claiming reimbursements. The settlement agreement would not have been helpful to answer
their questions because its language regarding reimbursements was that defendant released all
claims to reimbursements from Norma’s estate. The court conferred with the probate court and it
provided the same response to each jury question, “yes, but only with court approval.”
Defendant argued again that they were approved. However, Taylor, defendant’s own witness
disagreed, asserting, “the language is they are accepted as filed subject to the settlement
agreement” and that court approval is required when there are objections filed and objections
were filed in this case. The court’s last ruling, that the settlement agreement would be
prejudicial to defendant if given to the jury, was also not an abuse of discretion. The agreement
provided without explanation, that “Disputed claims exist between [defendant] and HEIRS in the
amount of $281,000 concerning the assets of NORMA.” There was testimony of controversy
over how the $230,006 in fire insurance proceeds was spent and the prosecutor claimed the
amount of funds embezzled was well into the three-hundred-thousands. It was very likely that
the jury would have attributed the amount in dispute documented in the settlement agreement as
an amount embezzled, thereby unfairly prejudicing defendant.
The absence of the settlement agreement from evidence further did not deny defendant a
fair trial or the opportunity to fully defend himself. Defendant was still permitted by the court
“the opportunity to bring in all those persons who justified the actions of the defendant that
warrant consideration that the monies taken here were utilized for the benefit” of Norma. In
addition, defendant was allowed to call persons who participated in the settlement as witnesses to
substantiate his expenses. Defendant took advantage of both opportunities.
Defendant next argues that he was denied a fair trial when he was not able to present
evidence of Norma’s treatment while she resided at Autumn Woods. Defendant sought to
introduce evidence that Norma, while left unattended, fell and broke her hip. Defendant also
wanted to introduce evidence of Norma’s condition at the time of her passing; specifically, that
Norma had sepsis, renal failure, pneumonia, dehydration, and a bladder infection. The court
ruled that the evidence was irrelevant. That ruling was not an abuse of discretion. The court
rightly wanted the jury to focus on how defendant managed Norma’s care as opposed to being
diverted to conditions at Autumn Woods.
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Defendant also argues he was prejudiced by the court allowing the prosecutor to elicit
testimony from Susan Warner assistant director of nursing at Autumn Woods that defendant nor
his family visited Norma. Defendant contends the testimony was misleading because it did not
also inform the jury of the no contact order in place in the probate court that prevented defendant
and his family from visiting Norma. Since the defense’s objection to this testimony was
sustained, and the jury was informed to disregard it, no prejudice was incurred. Additionally,
Barkovic gave testimony that there was a probate court order precluding family contact with
Norma.
Defendant also argues that he was prejudiced by the court’s ruling that he could not
present evidence establishing that the Fraser Department of Public Safety was biased against him
and the Motel. Defendant sought to admit evidence that the department targeted the Motel
because it rented to black people, whom the department did not want in the city of Fraser, and
that the department failed to take immediate action when the Motel caught on fire. Defendant
contends that the evidence would be relevant to explain why room one where Chester, Sr. and
Norma resided was without proper heat and water. The court again ruled that evidence of bias
was irrelevant. This ruling was not an abuse of discretion. The condition of room one and the
reason for its condition was testified to by other witnesses. Defendant asserts that without the
evidence regarding bias, he was not afforded his right to confront the witnesses against him.
This argument is without merit. The Sixth Amendment right to confrontation is not “an
unlimited right to admit all relevant evidence or cross-examine on any subject” or “a right to
cross-examine on irrelevant issues.” People v Adamski, 198 Mich. App. 133, 138; 497 NW2d 546
(1993).
3. MISTRIAL
Defendant last argues that the trial court should have declared a mistrial in defendant’s
case based on 1) Barkovic’s outrageous conduct throughout the trial, 2) upon learning that
Barkovic was no longer a licensed attorney, and 3) improper statements the court made to the
jury regarding Chester, Sr.’s competency.
“A mistrial is warranted only when an error or irregularity in the proceedings prejudices
the defendant and impairs his ability to get a fair trial.” People v Waclawski, 286 Mich. App. 634,
708; 780 NW2d 321 (2009) (quotation marks omitted). “A trial court should only grant a
mistrial when the prejudicial effect of the error cannot be removed in any other way.” People v
Horn, 279 Mich. App. 31, 36; 755 NW2d 212 (2008).
Defendant argues that the court should have declared a mistrial because Barkovic’s
conduct was grounds for a new trial based on ineffective assistance of counsel. Even if
Barkovic’s conduct was at times quarrelsome, a mistrial is only warranted where defendant was
prejudiced. The same is true in the context of ineffective assistance. “To demonstrate prejudice,
the defendant must show the existence of a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different.” People v Carbin, 463 Mich. 590, 600;
623 NW2d 884 (2001). Defendant does not make the required showing here. Most of
Barkovic’s encounters with the court were outside the presence of the jury. Defendant’s
speculation that the jury could hear some of the confrontations is just that - speculation.
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Defendant does not explain how any conduct was outcome-determinative. It is noteworthy that
Barkovic’s representation resulted in an acquittal of one charge and a hung jury on another.
Defendant’s claim that the court should have declared a mistrial when it learned Barkovic
was no longer a licensed attorney is abandoned for failure to provide any argument or citation to
legal authority. See Peterson Novelties, Inc v Berkley, 259 Mich. App. 1, 14; 672 NW2d 351
(2003) (internal citations omitted) (“An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims, nor may he give issues
cursory treatment with little or no citation of supporting authority[.]”).
Defendant also argues that a mistrial was warranted because the court made improper
statements to the jury regarding Chester, Sr.’s competency. This argument was waived at trial.
During defendant’s direct-examination of Detective Lisa Pettyes, Pettyes agreed with defendant
that a district judge had declared Chester, Sr. competent two or three months after November 6,
2013. The following day, the court stated that defendant’s representation of Chester, Sr. as
competent was not accurate. The court clarified that the district judge may have declared
Chester, Sr. competent to testify, but he was not declared competent in all respects. Barkovic
requested the court explain to the jury the difference and the court responded that it would tell
the jury that the only determination the district court made was whether he had “sufficient
physical and mental capacity or sense of obligation to testify truthfully and understandingly.”
Barkovic agreed with the court that there were different concepts of competency and asked the
court to read the above explanation to the jury. Defendant is bound by his counsel’s waiver.
Sampeer v Boschma, 369 Mich. 261, 266; 119 NW2d 607 (1963).
V. EFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARD OF REVIEW
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich. 575, 579; 640 NW2d 246 (2002).
“We review constitutional questions de novo.” People v Sadows, 283 Mich. App. 65, 67; 768
NW2d 93 (2009). “We review the trial court’s factual findings for clear error. Clear error exists
if the reviewing court is left with a definite and firm conviction that the trial court made a
mistake.” People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011).
B. ANALYSIS
“[T]he right to counsel is the right to the effective assistance of counsel.” United States v
Cronic, 466 U.S. 648, 653; 104 S. Ct. 2039; 80 L. Ed. 2d 657 (1984). To demonstrate ineffective
assistance of counsel, a defendant must show (1) that his defense counsel’s performance was
objectively deficient; and (2) that the deficient performance prejudiced his defense. Strickland v
Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984); People v Pickens, 446
Mich. 298, 302-303; 521 NW2d 797 (1994). “To demonstrate prejudice, the defendant must
show the existence of a reasonable probability that, but for counsel's error, the result of the
proceeding would have been different.” Carbin, 463 Mich. at 600.
Defendant first argues that counsel was ineffective for failing to interview any of
defendant’s prospective witnesses before trial. We reject this argument. “Decisions regarding
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what evidence to present and whether to call or question witnesses are presumed to be matters of
trial strategy.” People v Rockey, 237 Mich. App. 74, 76; 601 NW2d 887 (1999). “This Court will
not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” Id. at 76-77. “Counsel’s failure to call
witnesses is presumed to be trial strategy.” People v Mitchell, 454 Mich. 145, 163; 560 NW2d
600 (1997). “[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it
deprives the defendant of a substantial defense.” People v Dixon, 263 Mich. App. 393, 398; 688
NW2d 308 (2004). “A substantial defense is one that might have made a difference in the
outcome of the trial.” People v Kelly, 186 Mich. App. 524, 526; 465 NW2d 569 (1990).
Defendant produced a list of 411 witnesses whom he wanted Barkovic to call in his defense. We
note at the outset, that defendant has failed to identify any witness whose testimony would have
affected the trial outcome or any subject matter that was left unexplored due to the failure to call
additional witnesses. This alone is fatal to his argument. Further, our review of the record at
trial and post-trial supports a conclusion that counsel employed reasonable trial strategy in
winnowing down the list from 411 to 33 witnesses. Barkovic and, his co-counsel and daughter
Camilla Barkovic, met and discussed the relevancy of the witnesses on the voluminous list.
Barkovic requested multiple times that defendant reduce the list but defendant refused to do so
up until the time of trial. Finally, we note that counsel’s reduced witness list achieved a
favorable result on two of the three counts against defendant.
Defendant also asserts that he received ineffective assistance because his counsel was
called as a witness by the prosecution to testify against him. Defendant contends that counsel
was therefore, required to withdraw under MRPC 3.7. As discussed previously, it was at
defendant’s insistence that Barkovic represented him. The court did everything it could to advise
defendant of the risks, including appointing independent counsel. Also, before Barkovic
testified, defendant agreed on the record that he signed a document indicating that he thoroughly
discussed the potentiality of a conflict of interest under MRPC 3.7 with Barkovic and still wished
to continue with him as his counsel. The court allowed, and defendant agreed to allow,
Barkovic’s daughter, Camilla Barkovic to represent defendant and cross-examine Barkovic when
he testified. Under these circumstances, defendant waived any claim of ineffective assistance of
counsel when he made the decision to continue Barkovic’s representation despite being advised
of the affect Barkovic’s testimony could have on his case.
Defendant next asserts that Barkovic’s preoccupation with his own matter before the
attorney discipline board effected his representation of defendant. The record supports that there
was an issue with Barkovic’s status to practice law, but there is no evidence that he was
preoccupied with the issue or that it affected his representation of defendant.
The record reveals that after the close of proofs the court became aware that Barkovic
was ineligible to practice law. Defendant argues that Barkovic was too pre-occupied with his
disciplinary issues to provide effective assistance to him. He argues that if he would have known
about Barkovic’s licensing issue, he would have asked for a new attorney. Defendant’s
contention that Barkovic was distracted by the external issue of his licensing is speculative. In
the record before this Court, Barkovic’s licensing only became an issue on the second to last day
of trial, after the proofs were closed and before the jury completed deliberations. Defendant does
not allege when Barkovic’s issues with the State Bar Association began or how they affected his
performance.
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Defendant next argues that his counsel’s “abhorrent and contemptuous behavior” which
resulted in a $250 fine and 20-day jail sentence, infected defendant’s trial. Defendant cites three
instances of Barkovic’s behavior which defendant argues infected his trial. The first instance led
to Barkovic being held in contempt of court and occurred outside the presence of the jury. The
court told Barkovic to make a copy of exhibits for the prosecutor and Barkovic refused. He first
disparaged the prosecutor by saying that he did not trust her to make copies and refused to turn
over the originals to her. He then refused to go back with the prosecutor to make the copies.
The prosecutor and Barkovic then had a verbal exchange in the back hallway. The court held
that Barkovic was in contempt for direct defiance of an order, was to pay the court a $1,000 fine
by the following Tuesday, and would be sentenced to seven days in jail after the verdict was
rendered. The judge increased the jail sentence to 20 days when Barkovic became insistent on
going to jail at that moment. The fine was reduced to the $250 statutory amount. The second
instance also occurred outside the presence of the jury. The court was instructing the prosecutor
and Barkovic to review certain documents and the procedure for their admission. The court told
Barkovic, “pay attention” and “You know, you are just so disrespectful, Mr. Barkovic. It is
incredible.” During the first two instances, decorum was reestablished when the jury entered.
The third instance, recounted by the court the following day, occurred at a sidebar:
As [the prosecutor] started to say something else, Mr. Barkovic in an
assaultive manner turned to [the prosecutor] and told her to shut her mouth at a
tone that was frightening, aggressive, and, quite frankly, assaultive in the manner
in which he did it.
Instinctively the deputy told him, “That’s enough, Mr. Barkovic,” and
delivered his attention away from the prosecutor to the deputy where he then told
the deputy, “Don’t you tell me anything.” I then told him to step back, away from
the prosecutor, which he complied with.”
This was not a bench trial. Defendant was convicted by jury. All but one of the instances
complained of by defendant occurred outside the presence of the jury. The instance that did
occur in front of the jury was at a sidebar. The record gives no indication of whether the jury
heard what occurred. Defendant’s trial spanned 16 days. Defendant has not shown how this
isolated and brief event prejudiced the entire trial.
Defendant also argues that Barkovic was ineffective for failing to object to certain
testimony and to remarks made by the prosecutor during closing argument. “Defense counsel is
given wide discretion in matters of trial strategy and there is accordingly a strong presumption of
effective assistance of counsel. Declining to raise objections can often be consistent with sound
trial strategy.” People v Unger, 278 Mich. App. 210, 253; 749 NW2d 272 (2008) (internal
citation omitted).
Defendant first argues that Barkovic should have objected to Good’s testimony regarding
maggots surrounding a cut on Norma’s ankle, because the testimony was outside of the relevant
timeframe and there was no supporting evidence of maggots. Objections to Good’s testimony
regarding maggots in Norma’s wound would have been meritless because there was supporting
evidence of maggots and the evidence was relevant to a contested issue of fact. Good testified
that while caring for Norma, she once observed maggots inside of a cut on Norma’s ankle and
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picked them out with tweezers and cleaned the cut. She did not provide a timeframe as to when
she observed and cleaned the cut. The defense produced a Henry Ford Hospital record dated
July 21, 2013, which stated that Norma had a cut on her ankle that was scabbed over and that the
cut reopened and re-scabbed because Norma picked at it. The hospital record did not establish
that there were never maggots in the cut. Rather, it depicted what the cut looked like on July 21,
2013. Barkovic was not required to object to the testimony because it was relevant. The
vulnerable adult abuse charges put Norma’s care, living conditions, and health directly at issue.
Therefore, the testimony was relevant to a main contested issue and an objection would have
likely been overruled. “[C]ounsel is not ineffective for failing to raise meritless or futile
objections.” People v Putman, 309 Mich. App. 240, 245; 870 NW2d 593 (2015).
The failure to object in this instance can also not be ruled out as trial strategy. It may
have been Barkovic’s strategy not to object to Good’s testimony, because defendant also sought
to admit evidence from the same period to show that defendant sought medical care for Norma.
Defendant also argues that his counsel was ineffective for failing to object to Good’s
testimony that she left her employment for publicity reasons. When the prosecutor began to ask
Good why she left her employment, the court interrupted. Both the court and Barkovic
expressed concern that Good would inject external media issues into the trial. The court
cautioned the prosecutor not to ask any questions related to newspapers or the media. Because
the court interjected on this point and cautioned the prosecutor not to ask any questions related to
the media, an additional objection from Barkovic would have been futile. Id. at 245.
Defendant’s contention that Barkovic failed to object to testimony that defendant did not
support Norma with food or clothes or medicine while she was at Autumn Woods is incorrect.
Barkovic objected to “any reference as to what the family may have brought or didn’t bring . . .
for the reasons announced at sidebar” and the court sustained his objection.
Defendant further argues Barkovic was ineffective for failing to object to the prosecutor’s
disparaging remarks about Barkovic and defendant’s son during closing argument. Defendant
cites the prosecutor’s closing argument references to Barkovic as a “Jekyll & Hyde” act and
Chester, Jr. not being a real Harvard University student. Both remarks were comments on their
credibility as witnesses. The prosecutor argued that Chester, Jr. told the jury that he attended
Harvard University to make the jury “look at him a certain way,” as someone “trustworthy,
smart, credible, because he goes to Harvard.” The prosecutor called the school Chester, Jr.
attended an “extension school.” The prosecutor then proceeded to argue that the evidence
regarding Chester, Jr. did not meet the characteristics expected above, from a Harvard student.
The prosecutor’s Jekyll and Hyde remark was a comparison of Barkovic’s demeanor on the
witness stand and that as defendant’s counsel. The prosecutor argued, “You saw how he acted in
court. And then you saw, when he got up on the stand and acted like some kind of wounded bird
when I interrupted him when he was giving his long speeches about constitutional rights, you
saw all that.” Because “[a] prosecutor may argue from the facts that a witness is credible or that
a witness is not worthy of belief,” Unger, 278 Mich. App. at 240, Barkovic’s objections would
have been without merit.
Defendant lastly contends that because of counsel’s errors, the trial court should have
granted his new counsel’s request for a Ginther hearing. Defendant’s appellate counsel filed a
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post-conviction motion for a new trial based on ineffective assistance in the trial court. At a
hearing on July 21, 2016, the court held
Your motion is denied and the extent that this Court went to preserve your client’s
rights to cross examine his attorney, to get new Counsel, to have your client
consult with an attorney in addition to his retained attorney, it was your client just
being absolutely adamant that he wanted Mr. Barkovic to proceed with the case,
he refused to consult with another attorney that this Court appointed, just to be
there to consult with him, this Court bent over backwards to protect your client’s
rights associated with his right to an attorney and the representation in this case,
all efforts by this Court were specifically rejected on the record by your client.
Your motion is denied.
The trial court only addressed one of the many claims of ineffective assistance in that ruling.
However, the defendant fails to persuade this Court that a hearing would have produced any
additional information bearing on the issue. Our review of the fulsome record demonstrates that
defendant’s other multiple assertions of ineffective assistance were also devoid of merit.
VI. THE RIGHT TO COUNSEL
A. STANDARD OF REVIEW
We review unpreserved constitutional errors for plain error affecting defendant’s
substantial rights. Carines, 460 Mich. at 762-763.
B. ANALYSIS
A defendant’s right to the assistance of counsel at trial is guaranteed by both the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; People v Russell,
471 Mich. 182, 187–188; 684 NW2d 745 (2004). “The Sixth Amendment right to counsel at trial
is fundamental to the fair and accurate determination of guilt because the trial is the focus of the
entire criminal proceeding-the ‘main event,’ so to speak.” People v Houlihan, 474 Mich. 958,
966; 706 NW2d 731, 738 (2005). “Gideon v Wainwright, [372 U.S. 335; 83 S. Ct. 792; 9
L. Ed. 2d 799 (1963)], held that the Sixth Amendment right to counsel was so fundamental and
essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by
the Fourteenth Amendment.” Evitts v Lucey, 469 U.S. 387, 394; 105 S. Ct. 830; 83 L. Ed. 2d 821
(1985) (citation and quotation marks omitted). “An accused is entitled to be assisted by an
attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is
fair.” Strickland v Washington, 466 U.S. 668, 685; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984).
Defendant argues that he was denied the right to counsel while Barkovic was testifying
and that the quandary of having to cross-examine his own lawyer presented ethical
considerations that should have moved the court to disqualify Barkovic under MRPC 3.7. Both
arguments fail.
The first argument is factually incorrect. Defendant was not without legal representation
while Barkovic was testifying. Attorney Camilla Barkovic, Barkovic’s daughter, acted as
defendant’s counsel with defendant’s permission, while Barkovic testified and cross-examined
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him. Defendant does not argue that Camilla’s representation was inadequate or that her
performance was deficient.
The second argument is waived. People v Carter, 462 Mich. 206, 231; 612 NW2d 144
(2000) (“Waiver is the intentional relinquishment ... of a known right.”) (Citation and quotation
marks omitted). As was noted previously, defendant was warned about the danger of
representation by Barkovic and insisted that he remain his counsel. Additionally, defendant has
failed to articulate how Barkovic’s testimony or the act of testifying itself affected his substantial
rights such that despite his waiver we should vacate the conviction because of plain error.
VII. PROSECUTORIAL MISCONDUCT
A. STANDARD OF REVIEW
“This Court reviews claims of prosecutorial misconduct case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial.”
People v Aldrich, 246 Mich. App. 101, 110; 631 NW2d 67 (2001).
“No error requiring reversal will be found if the prejudicial effect of the prosecutor’s
comments could have been cured by a timely instruction.” People v Schutte, 240 Mich. App. 713,
721; 613 NW2d 370 (2000). A contemporaneous objection gives the trial court “an opportunity
to correct the error” and is “by far the best time to address a defendant’s constitutional and
nonconstitutional rights.” People v Grant, 445 Mich. 535, 551; 520 NW2d 123 (1994).
B. ANALYSIS
Defendant first argues that the prosecutor committed misconduct requiring reversal by
suppressing evidence of the probate court settlement. Defendant contends that the prosecutor
kept the probate court settlement and order to approve settlement from the jury. This argument
is baseless. The trial court, and not the prosecuting attorney, determined that the probate court
settlement and final order would not be made available to the jury.
Defendant’s second argument is equally lacking in merit. Defendant argues that it was
prosecutorial misconduct to call defendant’s counsel as a witness because by doing so,
defendant’s counsel was left with insufficient time to prepare for trial. This is essentially an
argument that defendant’s counsel was ineffective. Defendant waived a claim of ineffective
assistance associated with his counsel testifying at trial.
Defendant next argues that the prosecutor committed misconduct by falsely presenting
evidence that defendant and his family did not visit Norma nor bring her any clothes or medicine
while she was in Autumn Woods. Defendant was not prejudiced by this remark because defense
counsel objected to the testimony and asked that it be stricken, and the court sustained the
objection and ruled the testimony irrelevant. Grant, 445 Mich. at 551.
Defendant next argues that the prosecutor committed misconduct by presenting false
evidence regarding Chester, Jr. to the jury. In closing argument the prosecutor argued Chester,
Jr. was not a real Harvard University student. As discussed above, the remark was a comment on
Chester Jr.’s credibility as a witness. The prosecutor argued that Chester, Jr. told the jury that he
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attended Harvard University to make the jury “look at him a certain way,” as someone
“trustworthy, smart, credible, because he goes to Harvard.” The statement and related references
did not amount to prosecutorial misconduct. “A prosecutor may argue from the facts that a
witness is credible or that a witness is not worthy of belief.” Unger, 278 Mich. App. at 240.
Defendant additionally argues that the prosecutor presented false evidence that Chester, Jr. was
involved in embezzling money from the estate of Norma by receiving more than $30,000 in a
MUTMA2 account created on his behalf. “A prosecutor may not make a statement of fact to the
jury that is not supported by evidence presented at trial and may not argue the effect of testimony
that was not entered into evidence.” Unger 278 Mich app. at 241. At the post-conviction motion
hearing on this issue, the court found that “[t]racing the money was appropriate from the original
account. The court does not find that was prejudicial or erroneous misconduct.” It was not
misconduct for the prosecutor to question defendant’s documented transfer of funds directly
from an account marked for the benefit and care of Norma to an account that was for the benefit
of one of defendant’s children. “A prosecutor’s good-faith effort to admit evidence does not
constitute misconduct.” People v Dobek, 274 Mich. App. 58, 70; 732 NW2d 546 (2007).
Defendant lastly argues that the prosecutor committed multiple instances of misconduct
in her closing argument by: 1) repeatedly arguing that the probate court had not accepted and
approved defendant’s accountings, 2) denigrating defendant’s son, Chester, Jr. and defendant’s
counsel, 3) telling the jury that defendant requested the reissuance of a check without showing
the jury the check, 4) arguing that defendant did not present any evidence of Norma having died
from her treatment in the nursing home, 5) arguing that defendant only presented one video of
Norma in good condition, 6) arguing that defendant failed to establish the Fraser police had a
motive to force the Flamingo Motel to close, and 7) arguing that defendant did not produce
certain witnesses from Adult Protective Services and the Fraser police department.
The prosecutor did not commit misconduct by arguing that the probate court had not
accepted and approved defendant’s accountings. Taylor did not testify that defendant’s
accountings were accepted as filed and the jury was not presented with the settlement agreement.
Further, discussions regarding whether accepted as filed also meant approved occurred outside of
the jury’s presence. Therefore, the prosecutor’s statement was supported by, in this case, the
lack of facts in evidence. The prosecutor also did not commit misconduct when she questioned
Chester, Jr.’s attendance at Harvard University or referred to Barkovic’s performance at trial as a
“Jekyll and Hyde” act. As discussed above, the prosecutor’s remarks were related to Chester,
Jr.’s and Barkovic’s witness credibility. “The prosecutor was permitted to argue from the facts
that defendant or defendant’s witnesses were unworthy of belief.” Id. at 67.
It was also not misconduct for the prosecutor to argue that defendant’s request to reissue
a check was denied, without having presented the check to the jury. The prosecutor’s statement
was otherwise supported by prosecution exhibit 60-2, which was the June 24, 2009 court order
that denied defendant’s motion to re-issue the insurance check in the name of defendant and
ordered it deposited into Norma’s account.
2
Michigan Uniform Transfers to Minor Act, MCL 554.521 et seq.
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The remainder of the prosecutor’s arguments regarding Norma’s treatment in the nursing
home, the motives of the Fraser police, the one video of Norma, and the defense not producing
witnesses from Adult Protective Services and the Fraser police department, also did not
constitute prosecutorial misconduct. These arguments were either all proper rebuttal to
defendant’s argument in his closing or related to promises defendant made in his opening
statement. It is not prosecutorial misconduct for the prosecutor to observe that the defense failed
to call corroborating witnesses or “prove[] what it said it would in its opening statement.”
People v Fields, 450 Mich. 94, 115-116; 538 NW2d 356 (1995).
VIII. UNREASONABLE SEARCH AND SEIZURE
A. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a motion to suppress evidence and its findings
of fact for clear error. People v Barbarich, 291 Mich. App. 468, 471; 807 NW2d 56 (2011).
“Clear error exists if the reviewing court is left with a definite and firm conviction that the trial
court made a mistake.” Armstrong, 490 Mich. at 289.
B. ANALYSIS
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures....” US Const, Am IV.
The Michigan provision is similarly worded. People v Levine, 461 Mich. 172, 178; 600 NW2d
622 (1999); See Const 1963, art 1, § 11. “All evidence obtained in violation of this protection is
inadmissible in a state court.” People v Brown, 127 Mich. App. 436, 440; 339 NW2d 38 (1983).
However, “[t]he suppression of evidence should be used only as a last resort.” People v Frazier,
478 Mich. 231, 247; 733 NW2d 713 (2007). “[T]he exclusionary rule is ‘a harsh remedy
designed to sanction and deter police misconduct where it has resulted in a violation of
constitutional rights ....’ ” People v Anstey, 476 Mich. 436, 447-448; 719 NW2d 579 (2006),
quoting People v Hawkins, 468 Mich. 488, 512-513; 668 NW2d 602 (2003) (emphasis deleted).
“Generally, searches or seizures conducted without a warrant are presumptively unreasonable
and, therefore, unconstitutional.” Barbarich, 291 Mich. App. at 472.3 “Consent is an exception to
the warrant requirement.” People v Mahdi, 317 Mich. App. 446, ___; 894 NW2d 732 (2016).
“The consent exception to the warrant requirement allows a search and seizure when consent is
unequivocal, specific, and freely and intelligently given. The validity of the consent depends on
the totality of the circumstances.” People v Marsack, 231 Mich. App. 364, 378; 586 NW2d 234
(1998) (internal citations omitted). The exception “still requires reasonableness and probable
cause.” People v Brzezinski, 243 Mich. App. 431, 434; 622 NW2d 528 (2000).
3
Defendant contends, without any citation to legal authority that he had standing to challenge the
search and seizure because he was the court-appointed guardian for Norma. We do not address
the issue of standing because 1) the argument is not supported with legal authority, Hughes v
Almena Twp, 284 Mich. App. 50, 71; 771 NW2d 453 (2009); 2) it is not fully briefed, Id. at 72; 3)
it is not a part of the questions presented, MCR 7.212(C)(5), Busch v Holmes, 256 Mich. App. 4,
12; 662 NW2d 64 (2003); and 4) whether defendant had standing or not to contest the search and
seizure, the record demonstrates that he consented.
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Here, the trial court concluded after an evidentiary hearing, that defendant invited the
officers to visit Norma and Chester, Sr. and consented to Norma being transported to Henry Ford
Hospital. The record supports the court’s ruling. Officer Poole testified that after he told
defendant why the police were there, defendant asked the officers if they wanted to meet his
parents. There was no other evidence presented at the hearing to dispute that officers learned the
location of and gained entry to Norma and Chester, Sr.’s room, other than by defendant. While
defendant argues that he did not give consent, he also does not present an alternative theory of
how they entered the room against his consent.
Officer Poole further testified that once in the room, he observed it to be dark and the air
pungent with the smell of urine and feces. He observed Norma and Chester, Sr.’s bedding to be
soiled and wet. He observed Norma tethered to a chair. He testified that she had “stuff” on her
hands that looked and smelled like fecal matter. Although defendant told him he was guardian
over Norma, he could not produce his guardianship papers to show that was in fact true.
Paramedic Ryan Winowiecki corroborated Officer Poole’s observations. He further determined
that both Norma and Chester, Sr. had signs of dehydration and that Norma had open wounds on
her feet and hip. He also had concerns about their cognitive faculties after they displayed some
confusion and were unable to answer simple questions. Winowiecki testified that defendant was
not initially in agreement with Chester, Sr. or Norma going to the hospital however, defendant
later agreed for Norma’s transport to Henry Ford hospital and Chester, Sr. voluntarily left in the
ambulance with Norma.
The uncontroverted testimony supported that defendant invited officers to see the room
where Norma and Chester, Sr. resided, and agreed for Norma to be transported to a hospital that
he chose.4 The decision to have Norma and Chester, Sr. removed from the Motel was reasonable
given the testimony of their physical and living conditions, their inability to answer questions for
themselves and defendant’s failure to produce guardianship paperwork.
Defendant also argues in passing that he was not read his Miranda rights under Miranda
v Arizona, 384 U.S. 436, 444; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). This argument is abandoned
on appeal. “Miranda warnings need be given only in situations involving a custodial
interrogation.” People v Zahn, 234 Mich. App. 438, 449; 594 NW2d 120 (1999). “The term
4
The prosecutor also argued that the emergency-aid exception to the warrant requirement was
applicable. The trial court did not rule based on this exception. “[T]he emergency-aid exception
to the warrant requirement allows police officers to enter a dwelling without a warrant under
circumstances in which they reasonably believe, based on specific, articulable facts, that some
person within is in need of immediate aid.” People v Tierney, 266 Mich. App. 687, 704; 703
NW2d 204 (2005). “[L]aw enforcement officers may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an occupant from imminent injury.”
Brigham City, Utah v Stuart, 547 U.S. 398, 403; 126 S. Ct. 1943; 164 L. Ed. 2d 650 (2006).
However, the testimony from Officer Poole and paramedic Winowiecki was that neither Norma
nor Chester, Sr. were in any immediate life-threatening danger. Both testified that their concerns
were for how their conditions would deteriorate if left in the Motel room given their then current
condition.
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custodial interrogation means questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant
way.” Id. (Citations and quotation marks omitted). Defendant does not argue he was subjected
to custodial interrogation. “The failure to brief the merits of an allegation of error constitutes an
abandonment of the issue.” People v McPherson, 263 Mich. App. 124, 136; 687 NW2d 370
(2004).
IX. POLICE MISCONDUCT
A. STANDARD OF REVIEW
We review defendant’s preserved constitutional due process claim de novo. People v
Schumacher, 276 Mich. App. 165, 176; 740 NW2d 534 (2007). We review the trial court’s
findings of fact for clear error. People v Head, 211 Mich. App. 205, 209; 535 NW2d 563 (1995).
“Clear error exists if the reviewing court is left with a definite and firm conviction that the trial
court made a mistake.” Armstrong, 490 Mich. at 289.
B. ANALYSIS
Defendant contends that he is entitled to have his conviction set aside because Fraser
police officers destroyed evidence that deprived him of a defense. He further contends that the
destruction of the evidence constituted a Brady violation pursuant to Brady v Maryland, 373 U.S.
83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
“[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.” Id. at 87. In order to establish a Brady
violation, a defendant must show:
The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued. [Strickler v Greene, 527 U.S. 263, 281–282; 119 S. Ct. 1936; 144 L. Ed. 2d
286 (1999).]
“The government is held responsible for evidence within its control, even evidence unknown to
the prosecution, without regard to the prosecution’s good or bad faith.” People v Chenault, 495
Mich. 142, 150; 845 NW2d 731 (2014) (internal citations omitted). Evidence is favorable when
it is exculpatory or able to be used for impeachment. Greene, 527 U.S. at 281-282. “[E]vidence
is material if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. at 280 (citation and
quotation marks omitted).
Defendant was unable to prove any of the factors making up a Brady violation at the
October 2015 evidentiary hearing. Admittedly, defendant did not know exactly what the video
from November 6, 2013, would have shown. Defense counsel merely claimed that it was
potentially exculpatory. Next, defendant did not establish that the Fraser police suppressed the
video evidence. Defendant did not initially establish that the DVR was within any officer’s
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control. Although defendant testified that he was with Sergeant Ashley when he heard a loud
bang, which he later attributed to destruction of the DVR, he did not observe officers near the
DVR around the same time. Chester Jr., who was in the office where the DVR was located, also
did not testify to any officers being near the surveillance system. Indeed, Sergeant Ashley’s
testimony was that he had no knowledge of where the Motel’s surveillance equipment was
located. Additionally, defendant failed to show that he was prejudiced without the evidence.
Defendant argued that the video would have shown Norma and Chester Sr. walking around in
good health. It was undisputed however, that the surveillance camera only captured the door to
Norma and Chester Sr.’s room. The video would not have shown the living conditions inside of
their room, which formed the bases of the vulnerable adult abuse charges against defendant.
Because defendant failed to show that the surveillance video was favorable, suppressed or
material, he fails to establish a Brady violation. See Greene, 527 U.S. at 281-282.
Defendant also failed to prove his major claim that the Fraser police destroyed the
Motel’s surveillance equipment by striking the DVR box and attempting to cut the wires to the
system’s surveillance cameras. At the evidentiary hearing, defendant presented five witnesses, 5
in addition to himself, who all testified to the same series of events: The surveillance cameras
and the door buzzer worked on November 5, 2013; Fraser police were at the Motel on November
6, 2013; and the surveillance cameras and the door buzzer did not work on November 7, 2013.
From this testimony, defendant asked the court to conclude that the Fraser police were
responsible for denting the DVR box and cutting the door buzzer wires with the intent to cut the
surveillance camera wires. The court did not err in finding otherwise. Each of defendant’s
witnesses testified that he or she did not see who cut the wires to the door buzzer or strike the
DVR box. Defendant testified that while he also did not see anyone cut the wires or damage the
DVR box, he heard a loud bang while officers were at the Motel and discovered the door buzzer
was not working that night after they left. Chester Jr. and Angela, both of whom were at the
Motel with defendant, did not corroborate defendant’s testimony. In other words, neither
testified to hearing a loud bang and neither mentioned any problems exiting or entering the office
the night of November 6 because of a broken door buzzer. It is also actually unknown when on
November 6, the destruction occurred, given that there was no testimony that the front desk was
ever unstaffed. Additionally, because Chester Jr. testified that defendant and Jeffrey had to trace
the door buzzer wire to learn that it was cut, it is assumed that the person who cut the wire would
have had to spend the same amount of time. Because the door buzzer wire was in fact cut and
not the surveillance camera wires, defendant was also asking the court to assume that whoever
cut the door buzzer wires intended to cut the camera wires. However, it was just as equally
possible that the door buzzer wires were cut intentionally and the DVR smashed in order to make
the Motel vulnerable to theft. Given the record, it was not error for the court to find that there
was insufficient proof that the Fraser police were responsible for the damage to the Motel’s DVR
box and door buzzer wires.
5
Jeffrey Fraser, Joseph Meek, Joseph Manderachia, Angela Gala, and Chester Gala, Jr.
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X. CUMULATIVE ERROR
A. STANDARD OF REVIEW
We review the cumulative effect of errors “to determine if the combination of alleged
errors denied defendant a fair trial.” People v Knapp, 244 Mich. App. 361, 387; 624 NW2d 227
(2001).
B. ANALYSIS
“It is true that the cumulative effect of several errors can constitute sufficient prejudice to
warrant reversal where the prejudice of any one error would not.” LeBlanc, 465 Mich. 575, 591;
640 NW2d 246 (2002). “[O]nly actual errors are aggregated to determine their cumulative
effect.” People v Bahoda, 448 Mich. 261, 293 n 64; 531 NW2d 659 (1995). “In order to reverse
on the grounds of cumulative error, . . . the errors must have been seriously prejudicial in order to
warrant a finding that defendant was denied a fair trial.” Knapp, 244 Mich. App. at 388; (internal
citations omitted).
In this case, we found no error. As noted even if we assumed error in the trial court’s
decision not to sever the embezzlement charge from the vulnerable adult abuse charges,
defendant was not prejudiced by the error given the amount of overwhelming evidence
demonstrating his guilt beyond a reasonable doubt for the charge of vulnerable adult abuse
regarding Norma.
XI. PROSECUTOR’S MOTION IN LIMINE
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion the trial court’s decision whether to admit
evidence. People v Carrier, 309 Mich. App. 92, 103; 867 NW2d 463 (2015). “An abuse of
discretion is found only if an unprejudiced person, considering the facts on which the trial court
acted, would say that there was no excuse for the ruling made.” People v Aldrich, 246 Mich. App.
101, 113; 631 NW2d 67 (2001). Where the admissibility of evidence depends on the application
of a rule of evidence or a statute, it is a question of law subject to de novo review. Carrier, 309
Mich. App. at 103-104.
B. ANALYSIS
“Generally, all relevant evidence is admissible at trial.” Aldrich, 246 Mich. App. at 114.
Relevant evidence is evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” MRE 401. “However, even if relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative
evidence.” Aldrich, 246 Mich. App. at 114; MRE 403.
MCL 750.174a(1) reads, “A person shall not through fraud, deceit, misrepresentation,
coercion, or unjust enrichment obtain or use or attempt to obtain or use a vulnerable adult’s
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money or property to directly or indirectly benefit that person knowing or having reason to know
the vulnerable adult is a vulnerable adult.” A “vulnerable adult” is defined as someone over 18
years of age “who, because of age, developmental disability, mental illness, or physical disability
requires supervision or personal care or lacks the personal and social skills required to live
independently.” MCL 750.174a(15)(c); See MCL 750.145(m), (u)(i). Defendant is specifically
charged with MCL 750.174a(7)(a), which provides:
If any of the following apply, the person is guilty of a felony punishable by
imprisonment for not more than 20 years or a fine of not more than $50,000.00 or
3 times the value of the money or property used or obtained or attempted to be
used or obtained, whichever is greater, or both imprisonment and a fine:
(a) The money or property used or obtained, or attempted to be used or obtained,
has a value of $100,000.00 or more.
The prosecutor argues that the evidence of Norma’s living conditions is admissible as res
gestae evidence and as other acts evidence under MRE 404(b). Res gestae evidence is evidence
of other criminal acts that are “so blended or connected with the crime of which defendant is
accused that proof of one incidentally involves the other or explains the circumstances of the
crime.” People v Delgado, 404 Mich. 76, 83; 273 NW2d 395 (1978) (quotation omitted). It is
evidence intended “to give the jury an intelligible presentation of the full context in which
disputed events took place.” People v Scholl, 453 Mich. 730, 741-742; 556 NW2d 851 (1996).
Such evidence is “potentially relevant and admissible.” People v Jackson, 498 Mich. 246, 268;
869 NW2d 253 (2015). Res gestae evidence must comply with MRE 404(b). People v Jackson,
498 Mich. 246, 268-269; 869 NW2d 253 (2015). Evidence offered under MRE 404(b) is
evidence of other crimes, wrongs or bad acts and is not admissible if it is only used to show
conduct in conformity with those acts. However, the evidence may be admissible if offered for
another purpose, such as
proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing
an act, knowledge, identity, or absence of mistake or accident when the same is
material, whether such other crimes, wrongs, or acts are contemporaneous with,
or prior or subsequent to the conduct at issue in the case. [MRE 404(b)(1).]
The prosecutor argues that evidence of Norma’s living conditions is part of the res gestae
of the embezzlement charge because it provides the jury with the “full context” of the unjust
relationship between defendant and Norma. We disagree.
The trial court ruled that the evidence of Norma’s living conditions would not be
relevant, unless defendant argued that Norma’s money was used to cover her housing and costs
of living. This ruling was not an abuse of discretion. At the September 26 hearing on the
motion, the prosecutor agreed that all the transfers making up the embezzlement charge predated
October 6, 2013; the 30-day period for which the court allowed testimony about Norma’s living
conditions at the first trial. The prosecutor still argues that the evidence of Norma’s living
conditions is relevant under MRE 404(b) to explain defendant’s opportunity to embezzle. The
opportunity to embezzle was created by the undisputed fiduciary relationship and Norma’s
equally undisputed mental vulnerability, not her deplorable living conditions. Additionally,
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admission of evidence of the living conditions is substantially more prejudicial than probative.
MRE 403. Norma’s abysmal living conditions on November 6 would likely invoke passions and
have minimal probative value regarding financial transactions that pre-date those conditions by
months and years.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Kathleen Jansen
/s/ Cynthia Diane Stephens
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