People of Michigan v. Michael Magik Jones ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 4, 2021
Plaintiff-Appellee,
v No. 353266
Ingham Circuit Court
MICHAEL MAGIK JONES, LC No. 18-000724-FC
Defendant-Appellant.
Before: MARKEY, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
Defendant, Michael Magik Jones, appeals as of right his convictions following a jury trial
of two counts of assault with intent to commit murder, MCL 750.83, felon in possession of a
firearm, MCL 750.224f, and three counts of possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense
habitual offender, MCL 769.12, to concurrent prison terms of 60 to 100 years for each assault
conviction and 6 to 20 years for the felon-in-possession conviction, to be served consecutively to
three concurrent two-year terms of imprisonment for the felony-firearm convictions. We affirm.
I. FACTUAL BACKGROUND
Defendant was charged in two separate cases involving a series of related events that
occurred on March 31, 2018, in Lansing, Michigan. The events began with a shooting at an
apartment that belonged to Brandi Hubbard, the sister of defendant’s ex-girlfriend, Jendayi Guy.
According to Hubbard’s preliminary hearing testimony, she heard a knock on her apartment door,
but no one was there. She stepped out onto her balcony that faced the parking lot. She saw
defendant and asked him what he wanted. Defendant then pulled out a gun and fired at the
apartment. Approximately 45 minutes after the apartment shooting, a witness to that shooting
recognized defendant on a nearby street and contacted the police. While Lansing Police Officer
Sarah Willson was investigating the apartment shooting and speaking to Hubbard, she was called
away to the location where defendant had been spotted. When she encountered defendant, she
ordered him to stop, but he continued walking away and then turned and fired a gun at her from
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20 to 30 yards away. Officer Willson returned the gunfire, but did not hit defendant. Defendant
ran around a corner and into a lumber yard, and Officer Willson called for assistance.
Officers from the police department’s special tactics and rescue team (SMART) were
dispatched to the scene and a police helicopter also responded. After the helicopter reported
defendant’s possible location in the lumber yard, the SMART team moved in while inside a
BearCat, which is an armored, bullet-resistant, personnel carrier. The officers spotted defendant,
who was lying on his back on the ground along the side of a building and pointing a firearm at the
officers. As the BearCat drove past the building nearby defendant, defendant shot at the passenger
side of the BearCat multiple times. According to one officer, defendant fired the gun while
deliberately pointing it at the officer’s head. The officers returned the gunfire and wounded
defendant, disabling him. After securing defendant, the police found a .45-caliber Glock handgun
lying nearby. These events were captured on video, including from the helicopter, and admitted
as evidence at trial.
The police recovered a spent bullet from the scene of the apartment shooting and also
recovered several spent shell casings and spent bullets from the scene of the officer-involved
shooting. Ballistics testing showed that seven of the shell casings and one of the spent bullets
recovered from the scene of the officer-involved shooting contained marks indicating that they
were fired from the Glock handgun that was found near defendant. The bullet recovered from the
apartment also matched the Glock handgun. Testing of the Glock handgun also revealed the
presence of DNA that matched defendant’s DNA profile.
In Case No. 18-000743-FH, defendant was charged with offenses related to the initial
apartment shooting (the “apartment shooting” case), and in Case No. 18-000724-FC he was
charged with offenses related to the officer-involved shooting (the “officer-involved shooting”
case). The trial court granted the prosecutor’s pretrial motion to join these two cases for trial.
At trial, Officer Willson testified regarding her initial investigation of the apartment
shooting and her later encounter with defendant. A body camera recorded her interactions at both
locations. Video footage of her encounter with defendant was introduced at trial and played for
the jury, but the footage from her earlier encounter with Hubbard while investigating the apartment
shooting was never introduced. During deliberations, the jury was provided with the exhibit that
contained the video footage from Officer Willson’s body camera. However, the jury was
mistakenly given an unredacted video, which contained footage of both Officer Willson’s initial
encounter with Hubbard, which had not been introduced at trial, and the admitted portion involving
her encounter with defendant.
The jury convicted defendant as charged in both cases.1 After trial, the judge spoke to the
jurors, who reported that they had watched the video footage from Officer Willson’s body camera
during deliberations. According to the trial court, however, the jurors indicated that when they
1
All of the convictions at issue in this appeal arise from the officer-involved shooting case. In the
apartment shooting case, the jury found defendant guilty of discharge of a firearm at a building,
MCL 750.234b, carrying a concealed weapon, MCL 750.227, and felony-firearm.
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realized that the exhibit contained additional footage that had not been introduced at trial, they
skipped ahead and watched only the portion that had been introduced into evidence.
Defendant moved for a new trial, arguing in part that he was prejudiced by the jurors’
exposure to extraneous video footage that had not been introduced at trial. The trial court analyzed
the likely impact of the extraneous video footage on each of the two cases separately. After
observing that the unadmitted portion of the video was related only to the charges concerning the
apartment shooting and was “not directly supportive of” the charged assaults in the officer-
involved shooting, the court denied defendant’s motion for a new trial in the officer-involved
shooting case. However, because the extraneous video footage directly related to the charges in
the apartment shooting case, it had not been introduced at trial, and it was unknown how much the
jury may have viewed it or whether it influenced the jury’s verdict, the court granted defendant’s
motion for a new trial in the apartment shooting case. Thus, only defendant’s convictions in Case
No. 18-000724-FC (the officer-involved shooting case) are at issue in this appeal.
II. ANALYSIS
A. JOINDER
Defendant first argues that the trial court erred by joining the apartment shooting and
officer-involved shooting cases for trial. We disagree.
In People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009), the Michigan Supreme
Court explained:
Generally, this Court reviews questions of law de novo and factual findings
for clear error. The interpretation of a court rule, like matters of statutory
interpretation, is a question of law that we review de novo. To determine whether
joinder is permissible, a trial court must first find the relevant facts and then must
decide whether those facts constitute “related” offenses for which joinder is
appropriate. Because this case presents a mixed question of fact and law, it is
subject to both a clear error and a de novo standard of review. [Citations omitted.]
However, the ultimate decision regarding permissive joinder of related cases “lies ‘firmly within
the discretion of trial courts.’ ” People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014),
quoting People v Breidenbach, 489 Mich 1, 14; 798 NW2d 738 (2011). A trial court does not
abuse its discretion when it chooses an outcome within the range of reasonable and principled
outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
MCR 6.120(B), which governs postcharging permissive joinder, provides:
Postcharging Permissive Joinder or Severance. On its own initiative, the
motion of a party, or the stipulation of all parties, except as provided in subrule (C),
the court may join offenses charged in two or more informations or indictments
against a single defendant, or sever offenses charged in a single information or
indictment against a single defendant, when appropriate to promote fairness to the
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parties and a fair determination of the defendant’s guilt or innocence of each
offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, 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.
(2) Other relevant factors include the timeliness of the motion, the drain on
the parties’ resources, the potential for confusion or prejudice stemming from either
the number of charges or the complexity or nature of the evidence, the potential for
harassment, the convenience of witnesses, and the parties’ readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an
opportunity to be heard.
Similarly, MCR 6.120(C) provides that “[o]n the defendant’s motion, the court must sever for
separate trials offenses that are not related as defined in subrule (B)(1).” The Supreme Court has
explained that charges are not related “simply because they [are] of the same or similar character.”
Williams, 483 Mich at 235 (quotation marks and citation omitted). However, joinder is appropriate
when charges are “logically related” and “there is a large area of overlapping proof.” Id. at 237(quotation marks and citation omitted).
The prosecutor moved for joinder of the apartment shooting case, the officer-involved
shooting case, and a third case involving a shooting assault on February 27, 2018. The prosecution
filed its motion on November 4, 2019, two months before defendant’s scheduled trial. The
prosecutor argued that joinder was appropriate because the cases involved a series of connected
acts. The prosecutor noted that a ski mask associated with the February 27, 2018 shooting offense
was found in the same car that defendant was driving on the day of the apartment and officer-
involved shootings, and that bullets recovered from the February 27 shooting and from Hubbard’s
apartment both matched the Glock handgun recovered near defendant at the time of the officer-
involved shooting. Defendant argued that joinder of the three cases would be inappropriate and
the prosecutor eventually agreed that the case involving the February shooting assault should be
tried separately. However, the trial court found that the remaining two cases—the apartment
shooting and the officer-involved shooting—were sufficiently connected and it was appropriate to
join those two cases for trial.
The trial court did not abuse its discretion. The court correctly found that the two cases
were related as defined by the court rule. Defendant’s actions on March 31, 2018 involved a series
of connected acts. They happened on the same day, approximately 45 minutes apart, in geographic
proximity to each other. The evidence showed that defendant left the scene of the apartment
shooting on foot, and it was a witness to the apartment shooting who alerted the police to
defendant’s location where the officer-involved shooting occurred. Both cases involved the
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discharge of a firearm and the two series of acts involved the same ballistics evidence. The two
events were also connected insofar that the circumstances of the apartment shooting provided
context for an understanding of the sequence of events that led to the officer-involved shooting.
After the apartment shooting, defendant remained in the area and was again spotted by a
witness to the apartment shooting. When the police responded to the area and tried to question
defendant about the apartment shooting, he ignored their commands, shot at the officers, and fled,
which directly led to the shootout at the lumber yard. The prosecution persuasively argues that
without joining the two cases, the jury could have been confused about why the police initiated
contact with defendant, and why, without any conversation, he would simply shoot at the officers.
To the extent that some of the evidence related to the apartment shooting would have been
admissible under MRE 404(b)(1) at a separate trial of the officer-involved shooting, allowing such
evidence to be introduced piecemeal could have been more confusing to the jury. We disagree
with defendant’s contention that the apartment shooting “had nothing to do with the case involving
the police.”
Defendant appears to argue that because each case could have proceeded separately, they
should not have been joined. However, that is not the test under MCR 6.120(B). Consideration
of the factors listed in MCR 6.120(B)(2) supports joinder. The motion for joinder was filed two
months before trial, which provided ample opportunity for the defense to prepare for a trial of both
cases. The facts of the two cases were not complex and presented little potential for confusion
with respect to determining defendant’s guilt or innocence in each case. Had the cases been
severed, many of the witnesses, such as the witness to the apartment shooting, and Officers Willson
and Ryan Kellom, would have been required to testify in both cases. Joinder thus offered
convenience to the court, the victims, and witnesses. Defendant argues that it was more prejudicial
for the jury to be presented with all of the charges in the two cases than it would have been to
introduce evidence of defendant’s other acts at separate trials under MRE 404(b)(1). One of the
factors to consider under MCR 6.120(B)(2) is “the potential for confusion or prejudice
stemming . . . from the number of charges.” However, as our Supreme Court has observed,
“ ‘[j]oinder of . . . other crimes cannot prejudice the defendant more than he would have been by
the admissibility of the other evidence in a separate trial.’ ” Breidenbach, 489 Mich at 13, quoting
Williams, 483 Mich at 237, quoting United States v Harris, 635 F2d 526, 527 (CA 6, 1980). See
also United States v Foutz, 540 F2d 733, 736 (CA 4, 1976) (“In those instances where evidence of
one crime is admissible at a separate trial for another, it follows that a defendant will not suffer
any additional prejudice if the two offenses are tried together.”)
Accordingly, the trial court did not abuse its discretion by granting the prosecutor’s motion
to join the apartment shooting and the officer-involved shooting cases for trial.
B. ADMISSIBILITY OF HUBBARD’S PRELIMINARY EXAMINATION TESTIMONY
Defendant next argues that the trial court erred by permitting the prosecution to introduce
Brandi Hubbard’s preliminary examination testimony after finding that she was an “unavailable
witness” and that the prosecution had exercised due diligence in attempting to secure her presence
at trial. Defendant also asserts that the admission of Hubbard’s preliminary examination testimony
violated his constitutional right to confront the witnesses against him. Although we are not
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persuaded that the trial court abused its discretion by admitting Hubbard’s preliminary
examination testimony, we also conclude that any error was harmless beyond a reasonable doubt.
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Farquharson, 274 Mich App 268, 271; 731 NW2d 797 (2007). We also review for an abuse of
discretion a trial court’s decision whether a witness is unavailable. People v Bean, 457 Mich 677,
684; 580 NW2d 390 (1998). “However, decisions regarding the admission of evidence frequently
involve preliminary questions of law, e.g., whether a rule of evidence or statute precludes
admissibility of the evidence.” People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). We
review questions of law de novo. Id. Whether a defendant’s Sixth Amendment right of
confrontation was violated is also reviewed de novo. People v Fackelman, 489 Mich 515, 524;
802 NW2d 552 (2011).
The parties do not dispute that Hubbard’s preliminary examination testimony qualifies as
hearsay under MRE 801(c). Hearsay is not admissible except as provided by the Michigan Rules
of Evidence. MRE 802. MRE 804(b)(1) provides an exception to the general prohibition against
hearsay for former testimony by a declarant who is unavailable as a witness. The rule allows the
use of “[t]estimony given as a witness at another hearing of the same or a different proceeding, if
the party against whom the testimony is now offered . . . had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” Under MRE 804(a)(5), a witness
is unavailable if, in pertinent part, the witness is “absent from the hearing and the proponent of a
statement has been unable to procure the declarant’s attendance . . . by process or other reasonable
means, and in a criminal case, due diligence is shown.” “The test for whether a witness is
‘unavailable’ as envisioned by MRE 804(a)(5) is that the prosecution must have made a diligent
good-faith effort in its attempt to locate a witness for trial. The test is one of reasonableness and
depends on the facts and circumstances of each case, i.e., whether diligent good-faith efforts were
made to procure the testimony, not whether more stringent efforts would have produced it.” Bean,
457 Mich at 684. See also People v James, 192 Mich App 568, 571; 481 NW2d 715 (1992).
First, to the extent that defendant suggests that Hubbard’s preliminary examination
testimony was not admissible because it was given in the apartment shooting case, and thus, he
did not have an opportunity to cross-examine her in the officer-involved shooting case, we reject
that argument. MRE 804(b)(1) allows for the use of former testimony given in “the same or a
different proceeding.” In addition, although the preliminary examination at which Hubbard
testified concerned only the apartment shooting case, defendant had the opportunity and same
motive to develop her testimony relative to that case at the time of the preliminary examination.
Although defendant did not have a motive to develop Hubbard’s testimony at that preliminary
examination relative to the officer-involved shooting case, she was not a witness to the offenses in
that case and her testimony was not offered for any purpose related to that case. In other words,
her testimony was not offered for any purpose for which defendant did not have an opportunity or
a motive to develop her testimony relative to the case for which it was offered.
Defendant further argues, however, that Hubbard was not an unavailable witness because
the prosecution failed to exercise due diligence to secure her presence at trial. The record indicates
that Hubbard had moved to Texas, the prosecution became aware of her location there, and it
delivered a subpoena to her, but she informed the prosecution that she did not intend to return to
Michigan for trial. She continued to refuse to return and testify even after the prosecution offered
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to arrange for her transportation to Michigan. This information was shared with the trial court and
defense counsel.
On appeal, defendant suggests that the prosecution’s efforts to secure Hubbard’s presence
at trial were insufficient because it failed to use an “interstate subpoena.” However, defendant
does not explain what such a subpoena is or how it operates. The only authority cited by defendant
concerning this allegedly alternative means of securing Hubbard’s presence is an Internet article
discussing the model “Interstate Depositions and Discovery Act.” However, the summary also
clearly points out that Texas has not adopted this act. Michigan has adopted the Uniform Interstate
Depositions and Discovery Act, MCL 600.2201 et seq., which governs subpoena requests from
foreign states. However, this act does not provide Michigan courts with authority for ordering an
arrest of a Michigan resident for transport to another state. Rather, it is a mechanism for a
Michigan court to act on a foreign subpoena and issue its own subpoena “for service upon the
person to which the foreign subpoena is directed.” MCL 600.2203(2). While a subpoena under
this act can require a person to attend a deposition, produce documents for inspection, or permit
inspection of premises under the person’s control, it does not include compelling a person’s
presence at trial. See MCL 600.2202(e). Thus, even if Texas had adopted a similar act, it is not
apparent, and defendant does not discuss, how such an act would have provided a mechanism by
which the prosecution could have compelled Hubbard’s arrest and return to Michigan to testify.
Defendant does not otherwise explain what legal recourse the prosecution could have utilized to
secure Hubbard’s presence at trial. “It is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up to this Court to discover and rationalize
the basis for his claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” People v Waclawski, 286 Mich App 634, 679;
780 NW2d 321 (2009) (quotation marks and citation omitted). Accordingly, defendant has not
shown that the trial court abused its discretion when it found that the prosecution had exercised
due diligence to secure Hubbard’s presence at trial.
Defendant’s concurrent constitutional argument also fails. The Confrontation Clause bars
the admission of testimonial hearsay (e.g., preliminary examination testimony) of a witness who
does not appear at trial, unless the witness was unavailable to testify and the defendant had a prior
opportunity for cross-examination. Crawford v Washington, 541 US 36, 53-54, 68; 124 S Ct 1354,
158 L Ed 2d 177 (2004); People v Payne, 285 Mich App 181, 197; 774 NW2d 714 (2009). As
under MRE 804(b)(1), to show that a witness is unavailable, the prosecution must exercise due
diligence to locate and secure the witness for trial. Bean, 457 Mich at 682-683; People v Garland,
286 Mich App 1, 7; 777 NW2d 732 (2009). Because defendant has not shown that the trial court
abused its discretion when it determined that the prosecution exercised due diligence, defendant
cannot show that the use of Hubbard’s preliminary examination testimony violated his right of
confrontation.
In any event, even if the trial court erred by admitting Hubbard’s preliminary examination
testimony, and even assuming that the error qualifies as constitutional error, we would conclude
that the error was harmless beyond a reasonable doubt, at least with respect to defendant’s
convictions in the instant officer-involved shooting case. A preserved constitutional error is
harmless only if it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error. People v Shepherd, 472 Mich 343, 347; 697 NW2d 144 (2005).
The party who benefited from the error must demonstrate that there is no reasonable possibility
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that the evidence complained of might have contributed to the conviction. People v Anderson
(After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994). Hubbard’s testimony was relevant
only to the apartment shooting case, and her testimony presented at trial was redacted as a result
of an agreement between the parties. Although it is reasonably likely that her testimony
contributed to defendant’s convictions in that case, the trial court granted defendant’s motion for
a new trial in that case. With respect to the officer-involved shooting case, her testimony may
have provided some background context for enabling the jury to understand why the police initially
confronted defendant and why he would not cooperate when approached by the police, but this
same information was also provided by Holly Peck, a witness to the original apartment shooting,
who testified that she later saw defendant again less than an hour later and recognized him as the
same person involved in the apartment shooting, whereupon she contacted the police and alerted
them to defendant’s location. More significantly, Hubbard was not a witness to any of the events
surrounding the officer-involved shooting and did not offer any testimony related to the offenses
in that case. Accordingly, there is no reasonable possibility that her testimony might have
contributed to defendant’s convictions in the officer-involved shooting case. Thus, any error in
admitting her preliminary examination testimony qualifies as harmless beyond a reasonable doubt.
C. EXTRANEOUS VIDEO FOOTAGE
Defendant argues that reversal is required because the jury was exposed to video footage
from Officer Willson’s body camera that was not introduced at trial. We disagree.
The trial court denied defendant’s motion for a new trial on this issue. We review a trial
court’s decision to grant or deny a motion for a new trial for an abuse of discretion. People v
Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). Any findings of fact are reviewed for clear
error. People v Mendez, 225 Mich App 381, 382; 571 NW2d 528 (1997).
In People v Budzyn, 456 Mich 77, 88-89; 566 NW2d 229 (1997), our Supreme Court
explained:
In order to establish that the extrinsic influence was error requiring reversal,
the defendant must initially prove two points. First, the defendant must prove that
the jury was exposed to extraneous influences. Second, the defendant must
establish that these extraneous influences created a real and substantial possibility
that they could have affected the jury’s verdict. Generally, in proving this second
point, the defendant will demonstrate that the extraneous influence is substantially
related to a material aspect of the case and that there is a direct connection between
the extrinsic material and the adverse verdict. If the defendant establishes this
initial burden, the burden shifts to the people to demonstrate that the error was
harmless beyond a reasonable doubt. We examine the error to determine if it is
harmless beyond a reasonable doubt because the error is constitutional in nature.
The people may do so by proving that either the extraneous influence was
duplicative of evidence produced at trial or the evidence of guilt was overwhelming.
[Citations omitted.]
In this case, it is undisputed that the jury was exposed to extraneous evidence when it was provided
with an exhibit during deliberations that contained video footage of Officer Willson’s initial
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encounter with Hubbard while investigating the apartment shooting, which was not introduced at
trial. Therefore, the material inquiry is whether there is a real and substantial possibility that this
extraneous video footage could have affected the jury’s verdict in the instant officer-involved
shooting case.
Considering both the nature of the extraneous video footage and the other evidence in the
officer-involved shooting case, defendant has not met his initial burden of showing that the
objectionable portion of Officer Willson’s body camera footage was “substantially related to a
material aspect of the [officer-involved shooting] case and that there is a direct connection between
the extrinsic material and the adverse verdict” in that case. Id. at 89. The extraneous video footage
involved Officer Willson’s initial encounter with Hubbard while investigating the apartment
shooting. That footage is connected to the instant officer-involved shooting case only to the extent
that it provided context for understanding why the police were looking for defendant after the
apartment shooting. It did not depict any of the events surrounding the officer-involved shooting.
Indeed, video footage of Officer Willson’s later encounter with defendant leading up to the officer-
involved shooting was introduced at trial, and therefore, could properly be considered by the jury.
While the trial court determined that the objectionable portion was substantially related to the
jury’s finding of guilt in the apartment shooting case, and therefore granted a new trial in that case,
it did not err when it determined that the evidence was not substantially related to the instant
officer-involved shooting case and that there was no direct connection between the evidence and
the adverse verdict in this case.
Accordingly, the trial court did not abuse its discretion by denying defendant’s motion for
a new trial with respect to this issue.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he is entitled to a new trial because his trial counsel was
ineffective. We disagree.
Although defendant raised this issue in a motion for a new trial, the trial court denied
defendant’s motion without holding a Ginther2 hearing. Therefore, our review is limited to
mistakes apparent from the record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706
(2007). “Whether a person has been denied the effective assistance of counsel is a mixed question
of fact and constitutional law.” Id. To establish ineffective assistance of counsel, defendant must
show that (1) counsel’s representation “fell below an objective standard of reasonableness,” and
(2) but for counsel’s deficient performance, “there is a reasonable probability that the outcome of
the proceeding would have been different.” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288
(2012), citing Strickland v Washington, 466 US 668, 688-694; 104 S Ct 2052; 80 L Ed 2d 674(1984). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 US at 694. Defendant must “overcome the strong presumption that
counsel’s performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich
38, 52; 826 NW2d 136 (2012). “Because the defendant bears the burden of demonstrating both
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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deficient performance and prejudice, the defendant necessarily bears the burden of establishing the
factual predicate for his claim.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).
1. DISCOVERY
Defendant first argues that he is entitled to an evidentiary hearing to determine whether
trial counsel timely provided defendant with access to discovery materials to enable him to
participate in his defense. In an affidavit accompanying defendant’s motion for a new trial, which
is not sworn or notarized, defendant averred that “on the date of October 10, 2019, my attorney
stated for the record that he was in possession of the discovery and had failed to get it to me since
the filing of demands for discovery on April 19, 2019.” Defendant also stated that defense counsel
“stated for the record on January 6, 2020 that I needed more time to look over discovery,” because
he had not received the discovery materials before that date. The record does not support
defendant’s allegations that he was not timely provided with the discovery materials.
With respect to defense counsel’s alleged admission at an October 10, 2019 pretrial hearing
that he had not provided discovery materials to defendant, the record discloses that defense counsel
stated on the record on that date that he had “spent considerable time this afternoon, and I have
been out to the jail on one occasion. We are getting the discovery all sorted out.” Counsel also
stated that he and defendant had met for close to half an hour before the pretrial hearing. Counsel
noted that, to date, defendant had not received the complete discovery packet because of some sort
of mailing error, and defendant stated that he had only received discovery for one docket. After
discussing what materials should have been provided, defense counsel stated, “We agreed I would
actually bring the whole packet out and make sure that it would get into your hands,” and defendant
agreed. Counsel asked defendant whether he was “satisfied with that,” and defendant again agreed.
Counsel also asked defendant, “And then without going into our trial and other strategies, we did
discuss those matters in terms of motions that might exclude evidence and other types of matters
to be brought forward, correct?” Defendant again agreed. Defendant also acknowledged that he
wanted to proceed with the scheduled trial date. Defense counsel then stated that he would check
with the prosecutor to ensure that all of the discovery had been provided.
Defendant’s agreement that he was satisfied with the discovery he had been provided and
was prepared to proceed with trial as scheduled arguably waived any claim that he had not been
timely provided with discovery materials. People v Carter, 462 Mich 206, 215; 612 NW2d 144
(2000) (waiver is the intentional relinquishment of a known right; one who waives his rights may
not then seek appellate review of a claimed deprivation of those rights because the waiver has
extinguished any error). In any event, the record refutes defendant’s appellate claims that he had
not spoken with counsel about discovery, or that failure to obtain discovery until October 10, 2019,
prejudiced his ability to participate in his defense, particularly when trial was not scheduled to
begin until January 2020.
The record also indicates that on the first day of trial, January 6, 2020, defense counsel
informed the court that defendant was refusing to get dressed for trial because he had not had a
chance to review all of the discovery materials and wanted to do so before jury selection. The
court asked counsel how long defendant had possession of the materials and counsel stated that
defendant had a previous attorney, whom counsel believed had provided defendant with the
discovery materials and defendant had had possession of them for some time. Counsel added that
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he believed he had also provided the materials to defendant. Counsel also stated that when he
spoke with defendant, defendant was familiar with the case, and defendant told counsel the day
before that he was ready to proceed with trial and understood things well enough. Counsel agreed
that trial could proceed with jury selection and other preliminary matters. The prosecutor clarified
that it was his understanding that defendant was arguing that he had not obtained discovery in the
officer-involved shooting case. The prosecutor noted that defendant’s first attorney would have
been able to provide defendant with all of the discovery materials for both cases. The prosecutor
further stated that, because of defendant’s prior claims, the prosecutor had again sent discovery
materials to defense counsel the week before trial. The trial court found that discovery had been
timely provided, but stated that defendant could again review the materials before any witnesses
were called—during breaks and in the evening. The prosecutor then stated that he was providing
defendant personally with another copy of the discovery materials in the officer-involved shooting
case.
To the extent that defendant did not waive his claim that he was not timely furnished with
the discovery materials, given the statements on the record on January 6, 2020, the trial court did
not clearly err when it found that the prosecution had timely provided defense counsel with the
discovery materials and that counsel in turn had provided them to defendant. Moreover, although
defendant asserts that he could have better assisted his counsel in preparing for trial if he had
received the discovery materials earlier, “he does not explain what he actually would have done
differently, either before or at trial, if he had received any discovery materials sooner.” People v
Jackson, 292 Mich App 583, 601; 808 NW2d 541 (2011). Therefore, defendant failed to show
that he was prejudiced by any alleged deficiency on the behalf of trial counsel in this regard. Id.Accordingly, defendant has not demonstrated factual support for this ineffective-assistance claim,
or shown that an evidentiary hearing is necessary with respect to this claim. See Carbin, 463 Mich
at 600.
2. FAILURE TO CALL EXPERT WITNESSES
Defendant’s argument with respect to the need for expert testimony appears to be two-fold.
He appears to argue that trial counsel was ineffective for failing to request the appointment of
expert witnesses to assist with a defense, and further, that the trial court erred by denying his
posttrial request for appointment of expert witnesses to enable him to establish factual support at
an evidentiary hearing that he was prejudiced by trial counsel’s failure to request the appointment
of experts. We conclude that defendant has failed to make the necessary preliminary showing that
appointment of experts was necessary to assist with his defense at trial or to show that counsel’s
failure to pursue expert assistance resulted in a fundamentally unfair trial.
In People v Kennedy, 502 Mich 206, 210; 917 NW2d 355 (2018), our Supreme Court
altered the standards that apply when an indigent defendant seeks financial assistance for the
appointment of an expert. The Court adopted the standard set forth in Ake v Oklahoma, 470 US
68; 105 S Ct 1087; 84 L Ed 2d 53 (1985), which requires that such requests be analyzed under the
Fourteenth Amendment’s due-process guarantee of fundamental fairness to determine whether a
defendant has been provided with the basic tools necessary to present an adequate defense.
Kennedy, 502 Mich at 214-225. Under this standard, a defendant is required to “show the trial
court that there exists a reasonable probability both that an expert would be of assistance to the
defense and that denial of expert assistance would result in a fundamentally unfair trial.” Id. at
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228 (quotation marks and citation omitted). The Court explained that it adopted the reasonable
probability standard because, until an expert is consulted, a defendant may not know how expert
assistance could aid his defense and, thus, it would likely be impossible to support his request
without the assistance of an expert. Id. at 225-226. However, a defendant cannot make a bare
assertion of the need for an expert, which would result in every defendant receiving funds for the
hiring of an expert upon request. Id. at 226. The Court in Kennedy, 502 Mich at 226-228, adopted
the test set forth in Moore v Kemp, 809 F2d 702, 712 (CA 11, 1987), stating:
A majority of states confronting this problem have adopted a reasonable
probability standard. In Moore v Kemp, [809 F2d 702, 712 (CA 11, 1987)], the
United States Court of Appeals for the Eleventh Circuit discussed this standard as
follows:
[A] defendant must demonstrate something more than a
mere possibility of assistance from a requested expert; due process
does not require the government automatically to provide indigent
defendants with expert assistance upon demand. Rather . . . a
defendant must show the trial court that there exists a reasonable
probability both that an expert would be of assistance to the defense
and that denial of expert assistance would result in a fundamentally
unfair trial. Thus, if a defendant wants an expert to assist his
attorney in confronting the prosecution’s proof—by preparing
counsel to cross-examine the prosecution’s experts or by providing
rebuttal testimony—he must inform the court of the nature of the
prosecution’s case and how the requested expert would be useful.
At the very least, he must inform the trial court about the nature of
the crime and the evidence linking him to the crime. By the same
token, if the defendant desires the appointment of an expert so that
he can present an affirmative defense, such as insanity, he must
demonstrate a substantial basis for the defense, as the defendant did
in Ake. In each instance, the defendant’s showing must also include
a specific description of the expert or experts desired; without this
basic information, the court would be unable to grant the
defendant’s motion, because the court would not know what type of
expert was needed. In addition, the defendant should inform the
court why the particular expert is necessary. We recognize that
defense counsel may be unfamiliar with the specific scientific
theories implicated in a case and therefore cannot be expected to
provide the court with a detailed analysis of the assistance an
appointed expert might provide. We do believe, however, that
defense counsel is obligated to inform himself about the specific
scientific area in question and to provide the court with as much
information as possible concerning the usefulness of the requested
expert to the defense’s case.
We believe that the standard articulated in Moore strikes the right balance
between requiring too much or too little of a defendant seeking the appointment of
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an expert under Ake. Therefore, we adopt Moore’s reasonable probability standard
as the appropriate standard for courts to apply in determining whether an indigent
criminal defendant is entitled to the appointment of an expert at government
expense under Ake’s due process analysis. In particular, we hold that a defendant
must show the trial court that there exists a reasonable probability both that an
expert would be of assistance to the defense and that denial of expert assistance
would result in a fundamentally unfair trial. [Quotation marks and citations
omitted; alterations in original and emphasis added.]
Applying this analysis to the instant case, defendant has not demonstrated that it was
objectively unreasonable for trial counsel not to seek expert assistance, nor has he shown that
appointment of an expert is necessary to assist him in factually supporting an ineffective-assistance
claim related to this issue.
At the posttrial hearing on defendant’s motion for a new trial, the trial court asked appellate
defense counsel whether the request for expert witnesses was because of a need “to have the expert
look at it to determine whether it would have been potentially fruitful, from a Defense perspective,
for counsel to have consulted with an expert,” or whether the court needed to reach that issue
because appellate counsel’s argument was that trial counsel erred by failing to consult with experts
to know whether one would have been beneficial from a defense perspective. Counsel explained
that an expert was required to determine whether an expert could provide any benefit to defendant,
and that the expert analysis would need to be completed before an evidentiary hearing was held.
The trial court also noted that defendant had not articulated in sufficient detail why an expert was
needed. It appears from counsel’s statements on the record that counsel’s arguments in support of
the requests for expert assistance were predicated on positions advocated by defendant, but which
either lacked factual support or were inconsistent with the available evidence. We conclude that
the trial court did not abuse its discretion by rejecting defendant’s ineffective-assistance claims
with respect to this issue.
With respect to the alleged need for a video expert, an expert was not necessary to assist
the jury in determining whether defendant was the person depicted in the video recordings. The
jury was capable of making that determination itself. The only specific claim with respect to
possible “tampering” of the video was the time stamp on the video, but this anomaly was
attributable to the video’s use of coordinated universal time. There was no other basis for
questioning the authenticity of the video footage. And as the trial court also observed, the video
evidence was corroborated by witness testimony. Thus, defendant failed to show a reasonable
probability that a video expert was necessary to assist the defense or that denial of such expert
assistance resulted in a fundamentally unfair trial. Kennedy, 502 Mich at 228.
Similarly, defendant failed to demonstrate a reasonable probability that a DNA expert
could have assisted the defense. Although DNA was discovered on the Glock handgun that
matched defendant’s DNA profile, defendant’s possession of that gun was depicted in the
helicopter video evidence, several officers testified that they saw defendant firing the gun, and the
gun was recovered from the same area where defendant was detained after having been shot. Thus,
the evidence that defendant possessed the handgun was overwhelming, independent of the DNA
evidence. Therefore, even if a defense expert could have cast doubt on the reliability of the DNA
results, such testimony would have been of little value considering the body of additional evidence
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linking defendant to the handgun. Moreover, given this additional evidence, defendant has not
shown that the lack of a DNA expert resulted in a fundamentally unfair trial. Id.
With respect to a ballistics expert, the ballistics evidence further corroborated that
recovered bullets were fired from the Glock handgun that was found near defendant, but such
evidence was also used to tie defendant to the earlier apartment shooting. With respect to the
former, given the large body of other evidence demonstrating that defendant possessed and used
the Glock handgun during the officer-involved shooting, defendant has not demonstrated a
reasonable probability that a ballistics expert was necessary to assist with the defense of that case,
or that the lack of expert assistance resulted in a fundamentally unfair trial. Considering the large
body of evidence identifying defendant as the person who fired the Glock handgun during the
police confrontation, it was not unreasonable for defense counsel to instead pursue a defense that
was focused on the issue of defendant’s intent, and to argue that defendant did not act with an
intent to kill when he fired his weapon.
It is a closer question whether a ballistics expert could have aided in the apartment shooting
case. But regardless of whether there would have been a basis for requesting and obtaining expert
assistance in that case, because the trial court granted a new trial with respect to the charges in that
case, any analysis of that question is effectively moot. It cannot provide a basis for obtaining
appellate relief from defendant’s conviction in the instant case.
In sum, we agree with the trial court that defendant failed to demonstrate a reasonable
probability that an expert could have provided assistance in the officer-involved shooting case, or
that denial of expert assistance resulted in a fundamentally unfair trial. Accordingly, defendant
has not shown that it was objectively unreasonable for defense counsel not to request expert
assistance, or that appointment of an expert is necessary to enable defendant to establish factual
support for this claim at an evidentiary hearing.
Affirmed.
/s/ Jane E. Markey
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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