People of Michigan v. Christopher Allen Perrien ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 17, 2015
Plaintiff-Appellee,
V Nos. 312743 and 317405
Eaton Circuit Court
CHRISTOPHER ALLEN PERRIEN, LC Nos. 11-020394-FH
12-020053-FC
Defendant-Appellant.
Before: GADOLA, P.J., and HOEKSTRA and M. J. KELLY, JJ.
PER CURIAM.
In Docket No. 312743, following a jury trial, defendant appeals as of right his
convictions for first-degree home invasion, MCL 750.110a(2), and uttering and publishing, MCL
750.249, for which the trial court sentenced him, as a habitual offender, fourth offense, MCL
769.12, to serve concurrent terms of imprisonment, respectively, of 20 to 30 years and 9 to 30
years. In Docket No. 317405, following a jury trial, defendant appeals as of right his convictions
for two counts of first-degree felony murder, MCL 750.316(1)(b), and two counts of possession
of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced defendant to serve terms of imprisonment of 2 years for each felony-firearm
conviction, concurrent with each other but consecutive to concurrent terms of life without parole
for each murder conviction. For the reasons explained in this opinion, we affirm.
Defendant’s convictions in Docket No. 312743 relate to a home invasion at Jean
Gzybowski’s condo sometime between September 10 and September 19, 2010, while Gzybowski
was on vacation. Defendant’s convictions in Docket No. 317405 arise from the shooting deaths
of Mike and Terri Greene at their home on September 22, 2011.
Important to both prosecutions was a police traffic stop on September 27, 2011 that led to
the seizure of defendant’s vehicle and subsequently a search of that vehicle incident to a warrant.
During the search of defendant’s red Pontiac Trans Am, police found items stolen from
Gyzbowski’s home, including a checkbook and key fob. Police also found a cell phone and
other items taken from the Greenes’s home. In addition, data obtained from a GPS in the car
showed that defendant’s car had been at the Greenes’s home the day of the murder, and police
found a rental receipt in the car which led them to a storage unit, where police found the gun
used to kill the Greenes. Based on pawn shop records, police also determined that defendant had
pawned property belonging to the Greenes and Gyzbowski. In addition, Gyzbowkski’s banking
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records, and Comcast records, showed a payment from Gyzbowski’s account had been made on
behalf of defendant toward his Comcast bill. Defendant was convicted as noted above, and he
now appeals as of right in both cases.
I. JUDICIAL BIAS
In both of these appeals, defendant alleges bias, or the appearance of impropriety, on the
part of the judge who presided over the home-invasion trial, and who also heard and decided
several pretrial motions in connection with the murder trial. Specifically, the trial judge in
question approved defendant’s request for work-release on an unrelated case, which resulted in
defendant being out of jail and thus able to kill the Greenes. The trial court came under criticism
for this decision following the Greenes’s murder, particularly after it was discovered that
defendant had no employment to justify work release. In connection with his murder trial,
defendant asked the judge to recuse himself on the ground that the judge had come under severe
criticism in the community for approving defendant’s work-release. After a hearing on the
motion, the trial judge denied the motion, then referred the matter to the chief judge of his
circuit, who also denied the motion. On appeal, defendant contends that the trial court abused its
discretion by denying defendant’s motion because the trial court was actually biased or there
existed at least the appearance of impropriety.
A trial judge’s decision on whether to grant a motion for recusal is reviewed for an abuse
of discretion. People v Upshaw, 172 Mich. App. 386, 389; 431 NW2d 520 (1988). “A trial court
abuses its discretion when it fails to select a principled outcome from a range of reasonable and
principled outcomes.” People v Kahley, 277 Mich. App. 182, 184; 744 NW2d 194 (2008).
A criminal defendant is entitled to a neutral and detached magistrate. People v Cheeks,
216 Mich. App. 470, 480; 549 NW2d 584 (1996). Under MCR 2.003(C)(1)(a), disqualification of
a judge is warranted if the judge is actually biased or prejudiced for or against a party or his
attorney. “[A] trial judge is presumed to be impartial, and the party asserting partiality has the
heavy burden of overcoming that presumption.” People v Wade, 283 Mich. App. 462, 470; 771
NW2d 447 (2009). Absent actual bias or prejudice, under MCR 2.003(C)(1)(b), disqualification
is appropriate where there is an appearance of impropriety contrary to Canon 2 of the Michigan
Code of Judicial Conduct or a due process concern as enunciated in Caperton v AT Massey Coal
Co, Inc, 556 U.S. 868; 129 S. Ct. 2252; 173 LEd2d 1208 (2009). “The test for determining
whether there is an appearance of impropriety is whether the conduct would create in reasonable
minds a perception that the judge's ability to carry out judicial responsibilities with integrity,
impartiality and competence is impaired.” People v Aceval, 486 Mich. 887, 889; 781 NW2d 779
(2010) (citation and quotation marks omitted). In terms of due process, a judge should be
disqualified only in those extreme situations in which, objectively viewed, “the probability of
actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”
Caperton, 557 U.S. at 877.
In this case, regarding defendant’s assertions of actual bias, defendant has not overcome
the presumption that the trial court was impartial. Defendant claims that the trial court’s
involvement with defendant’s work-release demonstrates actual bias, but the trial court expressly
disavowed any such prejudice against defendant and stated on the record that he did not “feel any
particular pressure to make any rulings one way or the other.” The trial court assured both
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parties that they would get a “fair” trial. Given this express statement by the trial court and the
presumption that a judge is impartial, we see no reason to suppose that the trial court was
actually biased or prejudiced. MCR 2.003(C)(1)(a). Defendant also argues that the trial court’s
rulings with respect to defendant’s pretrial motions and defendant’s sentence of 20 years in the
home invasion case demonstrate actual bias by the trial court. We fail to see how a sentence
within the recommended minimum guideline range constitutes proof of actual bias and, more
generally, judicial rulings on their own, even those unfavorable to a litigant, are not sufficient to
demonstrate bias. See People v Jackson, 292 Mich. App. 583, 598; 808 NW2d 541 (2011); In re
Contempt of Henry, 282 Mich. App. 656, 680; 765 NW2d 44 (2009). In short, defendant has not
shown actual bias.
Insofar as defendant claims that the trial court’s involvement with his being granted work
release violated his due process rights or demonstrated an appearance of impropriety, we
likewise see no abuse of discretion in the trial court’s denial of defendant’s motion for
disqualification. Although it appears that the trial court came under scrutiny for its decision to
approve defendant’s work release, this type of criticism of a judge’s decision-making is not
unusual and it does not evince the trial court’s inability to act as a neutral decisionmaker. That
is, as the chief judge aptly noted when denying defendant’s motion for disqualification, “it’s not
uncommon for people to criticize judges.” The existence of such criticism does not, on its own,
create a perception that a judge is unable to carry out judicial responsibilities with integrity,
impartiality, and competence. See Aceval, 486 Mich. at 889. Further, this is also not the type of
“extreme” case where the probability of actual bias on the part of the judge is too high to be
constitutionally tolerable. See Caperton, 557 U.S. at 877. On the whole, defendant has failed to
show that either of his trials was tainted by judicial bias or any appearance of impropriety. Thus,
the trial court did not abuse its discretion by denying defendant’s motion for disqualification.
II. DEFENDANT’S MOTION TO SUPPRESS
In both of these appeals, defendant argues on appeal that the trial court erred in denying
his motions to suppress the evidence obtained in connection with the traffic stop and search of
his vehicle. Specifically, defendant maintains that he was arrested when the police stopped his
vehicle and placed him in handcuffs, and that the police lacked the probable cause necessary for
such a seizure. Alternatively, defendant contends that, if the initial stop is construed as an
investigatory stop, the police lacked reasonable suspicion for effecting the stop and the
prolonged detention of defendant transformed the investigatory stop into an arrest that was
unreasonable under the circumstances. Ultimately, defendant claims that the police violated
defendant’s Fourth Amendment right to be free from unreasonable searches and seizures, and
that any evidence discovered as a result of these constitutional violations should have been
suppressed as fruit of the poisonous tree.
This Court reviews “de novo a trial court’s ultimate decision on a motion to suppress,”
but “the trial court’s underlying findings of fact are reviewed for clear error.” People v
Beuschlein, 245 Mich. App. 744, 748; 630 NW2d 921 (2001). “We review de novo whether the
Fourth Amendment was violated and whether an exclusionary rule applies.” People v Hyde, 285
Mich. App. 428, 436; 775 NW2d 833 (2009).
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“US Const, Am IV and Const 1963, art 1, § 11 guarantee the right of the people to be
free from unreasonable searches and seizures.” People v Brown, 279 Mich. App. 116, 130; 755
NW2d 664 (2008). The touchstone of any Fourth Amendment analysis is reasonableness, which
must be measured by examining the totality of the circumstances. People v Williams, 472 Mich.
308, 314; 696 NW2d 636 (2005). “Because of endless variations in the facts and circumstances
implicating the Fourth Amendment, reasonableness is a fact-intensive inquiry that does not lend
itself to resolution through the application of bright-line rules.” Id. (citation and quotation marks
omitted).
“Generally, searches or seizures conducted without a warrant are presumptively
unreasonable and, therefore, unconstitutional.” People v Barbarich, 291 Mich. App. 468, 472;
807 NW2d 56 (2011). Evidence seized in violation of the Fourth Amendment must generally be
excluded from trial. People v Chowdhury, 285 Mich. App. 509, 516; 775 NW2d 845 (2009).
However, there are several exceptions to the warrant requirement, including the investigative
stop, also known as a Terry1 stop, which allows an officer to briefly stop a person, or vehicle, for
further investigation “if a police officer has a reasonable, articulable suspicion to believe a
person has committed or is committing a crime given the totality of the circumstances.”
Barbarich, 291 Mich. App. at 473; People v Steele, 292 Mich. App. 308, 314; 806 NW2d 753
(2011). “Under Terry, the reasonableness of a search or seizure depends on whether the officer's
action was justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” Williams, 472 Mich. at 314
(citation and quotation omitted). “A determination regarding whether a reasonable suspicion
exists must be based on commonsense judgments and inferences about human behavior.” People
v Jenkins, 472 Mich. 26, 32; 691 NW2d 759 (2005) (citation omitted).
In comparison to a Terry stop, a warrantless arrest requires “probable cause to believe
that an offense has occurred and that the defendant has committed it.” People v Cohen, 294
Mich. App. 70, 75; 816 NW2d 474 (2011) (quotation omitted). “Probable cause to arrest exists
where the facts and circumstances within an officer's knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed.” Id. (quotation omitted). The
probable cause standard “is a practical, nontechnical conception” judged from the totality of the
circumstances before the arresting officers at the time of arrest. Id. (quotation omitted).
“Circumstantial evidence, coupled with those inferences arising therefrom, is sufficient to
establish probable cause.” People v Nguyen, 305 Mich. App. 740, 752; 854 NW2d 223 (2014).
Turning to the present facts, at issue in this case is whether the police had reasonable
suspicion to stop and detain defendant while he was driving, and, if so, whether the police,
within the scope of that Terry stop, discovered probable cause to arrest defendant and seize his
car.
According to the record below, items were stolen from the Greenes’s home at the time of
their murder, including a cell phone and credit cards. On September 26, 2011, the police learned
1
Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).
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that one of their cards had been used to purchase gasoline at an Admiral station and that a card
had also been used to obtain cash from an ATM. Images from the gas station where the victim’s
credit card was used to purchase gasoline showed a red Firebird Trans Am at the station near the
time the purchase was made. Surveillance imagery of the ATM transaction showed a white
male, driving a red Firebird Trans Am and wearing dark sweatpants with a stripe down the side,
at the time of the transaction. Police also attempted to track the use of a cell phone missing from
the Greene’s home. On September 27, the cell phones “pinged” in Lansing, and a detective in
the area observed a red Trans Am with temporary registration plates. The detective
photographed the vehicle and noted that the driver had a large, distinctive tattoo on his neck.
Later that same day, the cell phone pinged again in a different area of Lansing, near Lake
Lansing Road. One of the officers who saw the Trans Am earlier responded to the Lake Lansing
Road area and saw defendant, whom he identified as the same white man from earlier with the
large, distinctive tattoo on his neck. At that time, defendant was wearing sweatpants with a
white stripe and standing next to a red Pontiac Firebird Trans Am in an Applebee’s parking lot.
Defendant then entered his car and drove away, at which time, the police made the decision to
stop defendant. Given this evidence, it is clear that, at a minimum, police had a reasonable,
articulable suspicion to believe that defendant was in possession of stolen items and involved
with the murders. Barbarich, 291 Mich. App. at 473. Thus, their investigatory stop of defendant
was clearly supported by reasonable suspicion that defendant was connected to the murder of the
Greenes.
After stopping defendant, police handcuffed defendant and placed him in the back of a
police car. They then ran defendant’s name through LEIN, at which time they learned that
defendant was on work release from Eaton County and driving on a suspended license. The trial
court specifically made the factual determination that “defendant was handcuffed and placed in
the back of a patrol car for less than six minutes before his identity and his work release status
were ascertained, as well as the fact that he . . . had been driving on a suspended license.” Given
the evidence presented, we see nothing clearly erroneous in the trial court’s factual findings in
this regard. Further, given the seriousness of the offense involved, which included the use of a
dangerous weapon, we do not think that the police acted unreasonably by drawing their guns or
by securing defendant in handcuffs for the less than six minutes it took to run defendant’s name
through LEIN. “[T]he officers had reason to be concerned for their safety and thus could take
reasonable steps to protect themselves.” United States v Perdue, 8 F3d 1455, 1463 (CA 10,
1993). See also Brown v Lewis, 779 F3d 401, 415 (CA 6 2015); People v Nimeth, 236 Mich. App.
616, 624; 601 NW2d 393 (1999). In other words, given the circumstances of this case, the fact
that defendant was handcuffed does not transform a proper investigatory stop into an arrest for
which probable cause was required. People v Green, 260 Mich. App. 392, 397; 677 NW2d 363
(2004), overruled on other grounds People v Anstey, 476 Mich. 436; 719 NW2d 579 (2006).
Once it became apparent that defendant was in violation of his work release and driving
on a suspended license, the police had probable cause for defendant’s continued detention. For
example, MCL 764.15(1)(a) authorizes a warrantless arrest where “[a] felony, misdemeanor, or
ordinance violation is committed in the peace officer’s presence,” and under MCL 257.904(1)
and (3) driving on a suspended license is a misdemeanor. Moreover, MCL 764.15(1)(g)
authorizes a police officer to arrest a person without a warrant where the officer “has reasonable
cause to believe the person . . . has violated 1 or more conditions of a conditional release order or
probation order . . . .” As one police officer explained at the suppression hearing, it was apparent
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that defendant was in violation of his work release order because he had been seen twice that day
simply “driving around” and not “working.” Consequently, there was probable cause for
defendant’s arrest and his transfer to the custody of Eaton County.
Once defendant was arrested, his vehicle was towed to the police station. See generally
People v Toohey, 438 Mich. 265, 275; 475 NW2d 16 (1991) (discussing impoundment of
vehicles incident to lawful arrests). As discussed in more detail infra, the police then obtained a
warrant for the search of defendant’s vehicle, a storage unit, and the GPS device found in the
car.2 In these circumstances, nothing about the stop of defendant’s vehicle or his subsequent
arrest was unreasonable, and it in no way affected the validity of the police’s search of
defendant’s vehicle. Thus, the trial court did not abuse its discretion by denying defendant’s
motion to suppress on the basis of the investigatory stop and subsequent arrest.
III. LATE ENDORSEMENT
Defendant’s last issue in Docket No. 312743 is a challenge to the trial court’s decision to
allow the prosecution to call a witness who was not brought to the court’s attention until the first
day of trial. Specifically, defendant argues that the trial court abused its discretion by allowing
the prosecutor to call Andrea Cisneros, defendant’s former girlfriend who testified that, around
the time of Gzybowski’s robbery, defendant brought a steam cleaner and bottle of liquor to her
home. These items were among those stolen from Gzybowski’s home. Defendant claims that
the prosecutor’s late endorsement of Cisneros violated MCL 767.40a, that the prosecutor did not
have good cause for adding a late witness, and that the late addition of Cisneros’s testimony
prejudiced defendant because he was unable to prepare for this testimony.
“The trial court's decision to permit the prosecutor to add or delete witnesses to be called
at trial is reviewed for an abuse of discretion.” People v Callon, 256 Mich. App. 312, 325-326;
662 NW2d 501 (2003). “A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes.” People v Yost, 278 Mich. App. 341, 379; 749
NW2d 753 (2008).
MCL 767.40a sets forth a prosecutor’s duty to disclose witnesses. Generally, the
prosecuting attorney must inform a defendant of “all witnesses known to the prosecuting
attorney who might be called at trial and all res gestae witnesses known to the prosecuting
attorney or investigating law enforcement officers.” MCL 767.40a(1). Subsection (3) requires
the prosecutor to provide the defense with a list of witnesses the prosecution intends to call
“[n]ot less than 30 days before the trial,” but subsection (4) adds that the prosecution “may add
2
We note briefly that in Docket No. 312743, defendant offers the patently unsubstantiated claim
that the police used the GPS to improperly monitor defendant in contravention of United States v
Jones, __ US __; 132 S. Ct. 945, 949; 181 L. Ed. 2d 911 (2012), wherein the Court held that the
warrantless attachment of a GPS to an individual’s vehicle constituted a search and seizure.
Jones is wholly inapposite on the present facts for the simple reason that the police found the
GPS in defendant’s car; it was not placed there by police.
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or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the
court and for good cause shown or by stipulation of the parties.” Belated discovery of a witness
may constitute good cause. See People v Burwick, 450 Mich. 281, 289; 537 NW2d 813 (1995);
People v Canter, 197 Mich. App. 550, 563; 496 NW2d 336 (1992). Further, to establish that the
trial court abused its discretion by allowing the late endorsement of a witness, a defendant must
demonstrate that he was prejudiced by the trial court’s ruling. Callon, 256 Mich. App. at 328.
In this case, Cisneros was not included on the prosecution’s witness list before trial.
However, the prosecutor explained on the record that the prosecution first spoke with Cisneros
shortly before trial because defendant indicated that she was going to be an alibi witness at trial.
Based on this representation from defendant, the prosecutor spoke with Cisneros and made the
decision to seek her endorsement as a witness at trial. To afford defendant an opportunity to
prepare for this testimony, the trial court indicated that defense counsel should be given “an
opportunity to talk to her,” and the prosecutor agreed not to call Cisneros until the following day
and to make sure that defendant had the necessary contact information for the witness.
Based on this record, we conclude that the trial court did not abuse its discretion by
allowing the late endorsement of a witness when it is clear that the prosecutor only learned of her
potential testimony shortly before trial. This late discovery constituted good cause. See
Burwick, 450 Mich. at 289; Canter, 197 Mich. App. at 563. Further, we see no indication that
defendant was prejudiced by the trial court’s ruling. See Callon, 256 Mich. App. at 328.
Defendant knew of Cisneros’s identity before trial and her testimony was delayed in order to
give defendant an opportunity to speak with her and prepare for her testimony. Defendant did
not move for a continuance as a result of this proposed testimony, and we can discern no
prejudice from the admission of her testimony. Cf. id. at 326. Because the prosecutor had good
cause for the late endorsement and defendant was not prejudiced, the trial court did not abuse its
discretion by allowing the prosecutor to add Cisneros as a witness.
IV. FRANKS HEARING
In Docket 317405,3 defendant challenges several warrants obtained by the police for the
search of defendant’s car, the storage unit belonging to defendant’s girlfriend, Crystal Gonzalez,
Gonzalez’s apartment, and to obtain the data from the GPS found in defendant’s car.
Specifically, defendant argues that the trial court abused its discretion by declining to conduct an
evidentiary hearing in connection with his pretrial motions to suppress evidence predicated on
allegations that certain statements in the affidavits in support of certain search warrants were
either deliberately false or made in reckless disregard for the truth. Defendant argues that, if
these falsehoods and material omissions are struck from the supporting affidavits, the warrants
were not supported by probable cause and that, therefore, defendant was entitled to suppression
of the evidence obtained in these searches.
3
This and all remaining issues relate solely to defendant’s appeal from his murder and felony-
firearm convictions.
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This Court reviews for an abuse of discretion a trial court’s decision whether or not to
hold an evidentiary hearing based on a challenge to the validity of the search warrant’s affidavit.
People v Martin, 271 Mich. App. 280, 309; 721 NW2d 815 (2006). “However, this Court reviews
the facts supporting the denial of the evidentiary hearing for clear error and reviews the
application of those facts to the law de novo.” Id. With respect to probable cause, “[a]
magistrate’s determination of probable cause should be paid great deference by reviewing
courts.” People v Keller, 479 Mich. 467, 474; 739 NW2d 505 (2007) (quotation omitted). The
reviewing court considers “only whether a reasonably cautious person could have concluded that
there was a ‘substantial basis’ for the finding of probable cause.” People v Russo, 439 Mich. 584,
603; 487 NW2d 698 (1992).
“A search warrant may be issued only on a showing of probable cause that is supported
by oath or affirmation.” People v Nunez, 242 Mich. App. 610, 612; 619 NW2d 550 (2000), citing
US Const, Am IV; Const 1963 art 1, § 11; MCL 780.651(1). “Probable cause to issue a search
warrant exists where there is a ‘substantial basis’ for inferring a ‘fair probability’ that contraband
or evidence of a crime will be found in a particular place.” People v Kazmierczak, 461 Mich.
411, 417-418; 605 NW2d 667 (2000) (citation omitted). “The magistrate's findings of
reasonable or probable cause shall be based on all the facts related within the affidavit made
before him or her.” People v Ulman, 244 Mich. App. 500, 509; 625 NW2d 429 (2001) (quotation
omitted).
There is a presumption that the affidavit supporting the search warrant is valid. Martin,
271 Mich. App. at 311. A defendant may seek a hearing to challenge the validity of the affidavit
supporting the search warrant, but to merit a hearing, the challenge “must be more than
conclusory and must be supported by more than a mere desire to cross-examine.” Id. (citation
omitted). To necessitate a hearing, the defendant must make a “substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and [that] the allegedly false statement is
necessary to the finding of probable cause.” Id., quoting Franks v Delaware, 438 U.S. 154; 98 S
Ct 2674; 57 L. Ed. 2d 667 (1978). “Allegations of negligence or innocent mistake are
insufficient.” Franks, 438 U.S. at 171. “This standard also applies to material omissions from
affidavits.” Ulman, 244 Mich. App. at 510. Finally, any invalid portions of the affidavit may be
severed, id.; and “if, when material that is the subject of the alleged falsity or reckless disregard
is set to one side, there remains sufficient content in the warrant affidavit to support a finding of
probable cause, no hearing is required.” Franks, 438 U.S. at 171-172.
Defendant identifies several items that he claims constitute material omissions from the
affidavits. Specifically, defendant asserts that the affidavit did not state (1) that there was a
“ping” on the victim’s cell phone in Grand Rapids on September 26, 2011, at which time no red
Trans Am was spotted, (2) that the victims’ card was also used at a Speedway station and police
could not determine that a red Trans Am had been at the Speedway station, (3) that the first
“ping” on September 27, 2011 was recorded at 3:22 p.m., but police did not see defendant’s
vehicle until 4:09 p.m., (4) that this first ping occurred in a highly populated area, (5) that police
did not stop the red Trans Am after the first ping because they did not believe they had
reasonable suspicion for a stop, (6) that a second red Trans Am was observed in the area near the
first ping, (7) that the second “ping” on September 27, 2011 occurred at 5:38 p.m. and police did
not spot defendant’s vehicle until 6:13 p.m., (8) that the second ping occurred in a highly
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populated area, (9) details regarding the size of the geographical area encompassed by the
“pings,” and (10) that when police saw defendant after the second ping he was talking on a cell
phone, but police did not detect an additional “ping” at that time.
Considering defendant’s claimed omissions, even supposing that there was some
deliberate or reckless omission of this information in the affidavit, we conclude that, even if this
evidence was inserted into the affidavit, probable cause remains and thus the trial court did not
abuse its discretion by denying defendant’s motion for a Franks hearing or to suppress the
evidence. See Ulman, 244 Mich. App. at 513. That is, the germane facts were that police had
ample reason, based on the Admiral gas station and ATM images, to believe that they were
looking for a white male driving a red Trans Am. On two separate occasions defendant, a white
male who fit the description of the suspect, was seen driving such a car within the proximity of
an area where the victim’s cell phone “pinged” shortly before.
Given this information, the gap between the pings and when police saw the red Trans Am
in question, while relevant, does not undermine the magistrate’s finding of probable cause.
Further, the fact that police saw a second red Trans Am—driven by an African-American woman
with children, who did not fit the description of the suspect—in the area of the first ping on
September 27 does not negate the existence of probable cause. Likewise, the police’s decision
not to stop defendant after the first ping is of little importance when it was the fact that defendant
was seen with a red Trans Am in both locations that gives rise to a finding of probable cause.
The failure to locate the vehicle in Grand Rapids the day before, or to find footage of a red Trans
Am on the Speedway video footage, does not invalidate the police’s investigation on September
27 or undermine the significance of defendant’s presence at both ping locations on that date. We
also see nothing misleading or significant in the fact that defendant was on a cell phone when
observed by police near Lake Lansing Road. The affidavit in no way suggested that there was a
third ping that could be linked to this conversation, and it is obviously quite possible that there
was no third ping because defendant was using a different cell phone. Finally, the fact that the
pings occurred in populated areas, or that the affidavits did not identify the precise perimeter of
the area implicated by the “pings,” does not obviate the significance of the fact that defendant
was found in both locations where the cell phone pinged, that he matched the description of the
person who used the Greenes’s card at the ATM, and that he was driving a red Trans Am like the
one seen at the ATM and the gas station. Thus, even if these omissions are considered, probable
cause remains and there was no need for a Franks hearing. See Franks, 438 U.S. at 171-172;
Ulman, 244 Mich. App. at 513.
Aside from these purported omissions, with respect to the search warrant for the storage
facility, defendant identifies what he claims to be two falsehoods. First, the affidavit states that
Gonzalez saw defendant place a gun in her storage unit, when in fact she told police that she saw
defendant arrive at the unit with items to store and that defendant had a gun in his possession.
Second, the affidavit indicates that an employee of the facility stated that defendant accessed the
unit on September 22, 2011, after paying the bill for the unit, when in fact, although defendant
paid the bill and the records show that someone accessed the unit on that date, the employee
testified at the preliminary examination that she did not actually see defendant enter the unit.
When denying defendant’s motion for a Franks hearing, the trial court noted the apparent
contradictions between the affidavit and the statements made by Gonzalez as well as the storage
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unit employee. The trial court then properly considered the unchallenged portions of the
affidavit and concluded that probable cause nonetheless remained. See Franks, 438 U.S. at 171-
172. The court explained:
Without the [challenged] information, the affidavit still included the fact
that after a warrant was executed on Defendant’s red Pontiac Firebird, officers
found a receipt from Allsafe Storage for Unit 62, dated September 22, 2011.
Upon interviewing . . . an employee of Allsafe Storage, the officers confirmed
that on September 22, 2011, the Defendant came into Allsafe Storage offices and
paid on Unit 62 . . . . Also on September 22, 2011, [Gonzalez, the renter of the
unit] herself called [the employee] at the Allsafe Storage offices in regards to the
Defendant’s presence at Allsafe. Finally, the affidavit still included the fact that
[Gonzalez] was at the storage unit on September 22, 2011 and saw the Defendant
place items into the storage unit.
Under the totality of the circumstance[s], there is a substantial basis for the
magistrate to have determined probable cause existed. . . . The magistrate had in-
formation that connected the Defendant to Allsafe Storage on the day of the
alleged murders, and there is information that on this day he was seen placing
items into Unit 62. Viewing these facts, along with the information provided by
the previous warrants incorporated by reference, there was probable cause to
believe that a search of Unit 62 would reveal evidence related to the alleged
double homicide committed on September 22, 2011.
The trial court thus concluded that even if defendant’s challenges to the affidavit are credited,
and the challenged factual assertions removed from it, what remains still sets forth probable
cause. The trial court’s reasoning was sound and, even assuming some recklessness or deliberate
falsity, defendant has not shown that the trial court abused its discretion by denying defendant’s
motion for a Franks hearing. See Martin, 271 Mich. App. at 309.
In addition to his claims of omissions and falsehoods, defendant specifically argues that
the trial court erred by failing to suppress the data police obtained from the GPS pursuant to a
warrant to search the GPS. Defendant concedes that the police had a lawful basis to seize the
GPS based on the warrant to search the car, but defendant argues that the police lacked probable
cause to obtain a warrant for the GPS data. Contrary to this argument, less than a week after the
murders, the GPS was found in a vehicle containing items stolen from the Greenes’s home,
defendant was the owner of the vehicle, and there was reason to believe he was using the
victim’s cell phone. On this record, there was reason to believe that the vehicle was connected to
the crimes, and there was probable cause to obtain a warrant to gain information from the GPS
about the vehicle’s whereabouts on the day of the murders.
For all these reasons, we reject defendant’s probable cause arguments and his challenges
to the validity of the affidavits underlying the search warrants.
V. DAUBERT HEARING
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Defendant challenges the trial court’s decision not to hold a Daubert4 hearing to explore
the scientific validity of the methodology according to which signals from a murder victim’s cell
phone were traced to defendant’s location. At trial, two police officers, one of whom was
qualified as an expert, testified regarding the police’s efforts to trace the victim’s cell phone and
the “pings” they obtained when one of the phones was in use, which ultimately led them to
defendant. On appeal, defendant now argues that this evidence should not have been admitted
and that the trial court abused its discretion by not holding a Daubert hearing.
This Court reviews for an abuse of discretion a trial court’s decision to conduct a Daubert
hearing. Lenawee Co v Wagley, 301 Mich. App. 134, 162; 836 NW2d 193 (2013); People v
Unger, 278 Mich. App. 210, 218; 749 NW2d 272 (2008). Likewise, we review for an abuse of
discretion a trial court’s decision to qualify a witness as an expert and to admit a witness’s
testimony. Lenawee Co, 301 Mich. App. at 161.
MRE 702 and MRE 703 govern scientific evidence and expert witnesses, as follows:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case. [MRE 702.]
The facts or data in the particular case upon which an expert bases an
opinion or inference shall be in evidence. This rule does not restrict the discretion
of the court to receive expert opinion testimony subject to the condition that the
factual bases of the opinion be admitted in evidence thereafter. [MRE 703.]
Under these rules, “[a] court considering whether to admit expert testimony under MRE 702 acts
as a gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both
relevant and reliable.” People v Kowalski, 492 Mich. 106, 120; 821 NW2d 14 (2012). See also
Gilbert v Daimler-Chrysler Corp, 470 Mich. 749, 781; 685 NW2d 391 (2004); MRE 104(a).
In this case, the trial court performed its gatekeeper function, concluding that a hearing
was unnecessary because “the technology of the cell phone . . . met the Daubert standard.” The
trial court also noted in its oral ruling that it had reviewed the materials submitted by the
prosecution, including case law and various articles, and that, based on these submissions, the
court was persuaded that the evidence was “sufficiently reliable.” We discern no abuse of
discretion in the trial court’s exercise of its gatekeeping function under MCR 702.
4
Daubert v Merrell Dow Pharmaceuticals, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469
(1993).
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Moreover, although the trial court did not hold a hearing, from the evidence introduced at
trial, it is clear that the evidence in question was properly admitted and thus any failure by the
trial court to hold a Daubert hearing was harmless. At trial, the two police witnesses described
their respective specialties in electronic surveillance and digital forensic investigations relating to
hand-held devices and computers, each providing extensive information concerning their training
and experience, and the methodology they employed in this case. Defendant did not renew his
objection to the admission of this evidence at trial,5 and it seems plain that this evidence was
admissible under MRE 702. Moreover, we note that the trial court granted a motion to provide
funds for, and appoint, an expert on GPS and cell phone technology to assist the defense. The
defense thus had adequate opportunity to challenge the techniques used in this case. And,
ultimately, police found the victim’s cell phone in defendant’s car, largely overshadowing the
significance of the cell phone tracking evidence at trial. Overall, we find no reason to conclude
that the trial court abused its discretion and defendant is not entitled to relief.
We note that, on appeal, to support the proposition that cell phone tracking evidence of
the kind at issue in this case is unreliable and potentially misleading, defendant cites two recent
articles from legal periodicals. However, those articles were not part of the record of the
proceedings below, and there has been no motion to enlarge the record. Accordingly, we decline
to consult those writings for purposes of deciding this issue. See MCR 7.210(A); People v
Eccles, 260 Mich. App. 379, 384 n 4; 677 NW2d 76 (2004). On the whole, we conclude that the
trial court did not abuse its discretion in declining to hold a Daubert hearing, and that no error
resulted in connection with the testimonies of the two challenged witnesses.
VI. FIREARMS IDENTIFICATION
Next, defendant challenges the admission of expert testimony on firearm and toolmark
identification, claiming that such evidence is generally unreliable. Specifically, defendant
challenges the methodology through which a handgun found in the storage unit was identified as
among the items stolen in the home invasion underlying Docket No. 312743, and also as the
murder weapon in connection with the homicides underlying Docket No. 317405. However,
defendant admits that no such objection was raised below, and so this issue comes to this Court
unpreserved. Our review is thus limited to ascertaining if there was a plain error that affected
defendant’s substantial rights. People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
Where plain error is shown, the reviewing court should reverse only when the defendant is
actually innocent or the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings. Id.
To establish that the type of firearm and toolmark evidence at issue in this case is
unreliable, defendant cites to a recent concurrence authored by Justice McCormack in which she
noted her “unease” with expert testimony on toolmark evidence based on recent criticisms in the
scientific community regarding the reliability and scientific foundation of such evidence. People
5
The defense declined to cross-examine the witness who was recognized as an expert, but
vigorously cross-examined the other witness over the technology upon which he relied.
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v McAdoo, 497 Mich. 975; 859 NW2d 711 (2015) (MCCORMACK, J., concurring). Justice
McCormack’s concurrence quoted from a report from the National Research Council of the
National Academies, entitled Strengthening Forensic Science in the United States: A Path
Forward (Washington, DC: National Academies Press, 2009). On appeal, defendant now relies
heavily on this report and Justice McCormack’s concurrence to establish that the evidence in this
case was unreliable.
However, a concurring opinion is not binding precedent, People v Sexton, 458 Mich. 43,
65; 580 NW2d 404 (1998), and thus Justice McCormack’s opinion does not establish that
toolmark or firearm evidence is considered categorically unreliable in Michigan. Moreover,
because the report relied on by defendant was not part of the lower court record, defendant
cannot now expand the record on appeal to include these materials. See MCR 7.210(A); Eccles,
260 Mich. App. at 384 n 4. Consequently, on the record presented, we cannot conclude that the
trial court plainly erred by failing to sua sponte exclude firearm and toolmark evidence.
Moreover, as in McAdoo, 497 Mich. at 975, the present issue is unpreserved and
defendant has not shown that he was entitled to relief “given the other evidence of guilt.” That
is, it was not merely defendant’s possession of the murder weapon that established his guilt.
Defendant was in possession of items stolen from the Greenes’s house and the GPS in his car
placed him at the Greenes’s home on the day of the murders. Given this other evidence,
defendant has not shown that the admission of the firearm and toolmark evidence affected his
substantial rights. Consequently, defendant has not shown plain error and he is not entitled to
relief on appeal.
VII. CUMULATIVE ERROR
Finally, defendant suggests that if no single claim of error itself warrants reversal, such
relief is nonetheless required in the face of the cumulative effect of all such errors. However,
because defendant has failed to establish any errors, there can be no cumulative effect of errors
meriting reversal. See People v Dobek, 274 Mich. App. 58, 106; 732 NW2d 546 (2007).
Affirmed.
/s/ Michael F. Gadola
/s/ Joel P. Hoekstra
/s/ Michael J. Kelly
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