People of Michigan v. Ladarius Edward Welch ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 14, 2017
Plaintiff-Appellee,
v No. 333571
Saginaw Circuit Court
LADARIUS EDWARD WELCH, LC No. 15-041367-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 333629
Saginaw Circuit Court
JARQUEZ DOMINIQUE SWILLEY, LC No. 15-041366-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
PER CURIAM.
Defendants, Ladarius Welch and Jarquez Swilley, were tried jointly, before a single jury.
The jury convicted Welch of first-degree premeditated murder, MCL 750.316(1)(a), carrying a
weapon with unlawful intent, MCL 750.226, and two counts of possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The jury convicted Swilley of
first-degree premeditated murder, carrying a weapon with unlawful intent, felon in possession of
a firearm, MCL 750.224f, and three counts of felony-firearm.1 The trial court sentenced Welch
to concurrent terms of life imprisonment without parole for the first-degree murder conviction
1
The jury also convicted both defendants of an additional charge of conspiracy to commit first-
degree murder, MCL 750.157a and MCL 750.316, and an associated felony-firearm charge.
After trial, the trial court granted defendants’ motions for a directed verdict with respect to those
charges.
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and two to five years’ imprisonment for the carrying a weapon with unlawful intent conviction,
to be served consecutive to concurrent two-year terms of imprisonment for the felony-firearm
convictions. The court sentenced Swilley as a fourth-offense habitual offender, MCL 769.12, to
concurrent terms of life imprisonment without parole for the first-degree murder conviction and
life in prison with the possibility of parole for the carrying a weapon with unlawful intent and
felon-in-possession convictions, to be served consecutive to three concurrent two-year terms of
imprisonment for the felony-firearm convictions. Welch appeals as of right in Docket No.
333571, and Swilley appeals as of right in Docket No. 333629. For the reasons stated in this
opinion, we affirm in both appeals.
I. BASIC FACTS
Defendants’ convictions arise from the April 2, 2014 shooting death of Davontae Weems.
The prosecution’s theory of the case was that both Welch and Swilley had a history of
disagreements and confrontations with Weems, and they were looking for him on April 2, 2014,
in order to kill him. The prosecution argued that Welch and Swilley saw Weems walking on the
street, and that Swilley shot and killed Weems with Welch’s assistance.
At trial, DeQuaviz Cannon testified that he was a passenger in a vehicle with Welch and
Swilley when they saw Weems walking down the street. Cannon testified that Welch turned into
a driveway and Swilley, who had a gun, exited the van and started chasing Weems, firing shots
at him. Welch eventually stopped his van near Weems’s body, exited the van, confirmed that
Weems was dead, and told Swilley, “You got that motherf***er.” Cannon acknowledged that
when he first spoke to the police, he falsely stated that Welch and Swilley were not involved in
the shooting because he did not want to implicate them. Cannon received immunity in exchange
for his testimony.
Swilley’s former girlfriend, Arnisha Dorsey, testified that Swilley initially denied any
involvement in the shooting, but then later admitted to her that he had killed Weems. Dorsey
also testified that after Swilley was incarcerated, he asked her to dispose of the gun, but she
refused. Thereafter, Swilley contacted Welch, who borrowed Dorsey’s keys and removed the
gun from her apartment. Dorsey further testified that Swilley encouraged her to lie to the police.
She admitted that she initially told the police that she did not know anything about the shooting,
but testified at trial that this statement was false. Dorsey accepted a plea agreement in which she
pleaded guilty to accessory after the fact to first-degree murder and obstruction of justice in
exchange for her testimony and a recommendation that she be placed on probation.
II. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Welch argues that the evidence was insufficient to prove beyond a reasonable doubt that
he aided or abetted Swilley in the killing of Weems because the evidence did not show that he
knew of Swilley’s plan to find and shoot Weems. Swilley also argues that there was insufficient
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evidence to support his convictions.2 We review de novo a challenge to the sufficiency of the
evidence. People v Meissner, 294 Mich. App. 438, 452; 812 NW2d 37 (2011). This Court is
required to “view the evidence in a light most favorable to the prosecution to determine whether
a rational trier of fact could have found the essential elements of the crime to have been proved
beyond a reasonable doubt.” Id. This Court will not interfere with the jury’s role of determining
the weight of the evidence or the credibility of witnesses. People v Milstead, 250 Mich. App. 391,
404; 648 NW2d 648 (2002). A trier of fact may make reasonable inferences from direct or
circumstantial evidence in the record. People v Vaughn, 186 Mich. App. 376, 379-380; 465
NW2d 365 (1990).
B. ANALYSIS
1. WELCH
The prosecution argued that Welch was guilty under an aiding or abetting theory.3 The
phrase “aiding and abetting” describes all forms of assistance given to the actual perpetrator of
the crime. People v Jackson, 292 Mich. App. 583, 589; 808 NW2d 541 (2011). To establish that
a defendant aided or abetted a crime, the evidence must show that: “(1) the crime charged was
committed by the defendant or some other person; (2) the defendant performed acts or gave
encouragement that assisted the commission of the crime; and (3) the defendant intended the
commission of the crime or had knowledge that the principal intended its commission at the time
that [the defendant] gave aid and encouragement.” People v Plunkett, 485 Mich. 50, 61; 780
NW2d 280 (2010) (quotation marks and citation omitted). Some aid and encouragement is
required, but the actual amount given is immaterial. People v Moore, 470 Mich. 56, 71; 679
NW2d 41 (2004). An aider or abettor’s state of mind may be inferred from the facts and
circumstances surrounding the incident. People v Bennett, 290 Mich. App. 465, 474; 802 NW2d
627 (2010). Factors to be considered in determining whether a defendant aided or abetted a
crime “include a close association between the defendant and the principal, the defendant’s
participation in the planning or execution of the crime, and evidence of flight after the crime.”
People v Carines, 460 Mich. 750, 758; 597 NW2d 130 (1999) (quotation marks and citation
omitted).
2
Swilley raised this issue and others in a pro se brief filed pursuant to Supreme Court
Administrative Order No. 2004-6, Standard 4.
3
Welch was convicted of aiding or abetting first-degree premeditated murder, carrying a firearm
with unlawful intent, and two counts of felony-firearm. “The elements of first-degree murder are
(1) the intentional killing of a human (2) with premeditation and deliberation.” People v Bennett,
290 Mich. App. 465, 472; 802 NW2d 627 (2010). The elements of carrying a firearm with
unlawful intent are (1) the carrying of a firearm; (2) with the intent to use the firearm in an illegal
manner against another person. People v Mitchell, 301 Mich. App. 282, 292; 835 NW2d 615
(2013). The elements of felony-firearm are: (1) the possession of a firearm; (2) during the
commission of, or the attempt to commit, a felony. MCL 750.227b.
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Welch does not dispute that sufficient evidence was presented to prove that Swilley shot
and killed Weems, but contends that the evidence failed to prove that he aided or abetted Swilley
in committing murder and, at most, showed only that he was an accessory after the fact or that he
could have “guessed” Swilley’s intentions. We disagree. The record reflects that both Swilley
and Welch had prior difficulties with Weems and that Welch had informed Weems’s mother that
he was waiting for Weems to be released from prison, which supports an inference that Welch
shared an intent to harm Weems. Further, there was testimony that, upon seeing Weems walking
down the street, Welch stopped his van to allow Swilley to exit with a gun and pursue Weems,
which is sufficient to prove that Welch assisted Swilley by enabling him to confront and shoot
Weems. The evidence that Welch left the van to confirm that Weems was dead, and then
communicated to Swilley that he “got that motherf***er” also supports an inference that he and
Swilley shared a common intent and that Welch had knowledge of Swilley’s intention to shoot
and kill Weems. Finally, after the offense, Welch borrowed Dorsey’s keys and used them to
enter her apartment to obtain and dispose of the gun that Swilley used to shoot Weems.
Although this evidence supports a finding that Welch acted as an accessory after the fact, it also
supports an inference that Welch wanted to dispose of the gun because of his consciousness of
guilt for his own involvement in the murder.
On appeal, Welch attempts to discredit the testimony of Cannon and Dorsey by
emphasizing that they had both given earlier statements to the police that were inconsistent with
their trial testimony and that both had made favorable arrangements for their testimony at trial.
However, the credibility of their testimony was for the jury to resolve. Millstead, 250 Mich. App.
at 404. Viewed in a light most favorable to the prosecution, the evidence was sufficient to
support Welch’s convictions under an aiding or abetting theory.
2. SWILLEY
There was also sufficient evidence to support Swilley’s convictions. Cannon testified
that he witnessed Swilley exit Welch’s van to chase after and then fatally shoot Weems, and
Dorsey testified that Swilley admitted to her that he had killed Weems. Viewed in the light most
favorable to the prosecution, that testimony was sufficient to support Swilley’s convictions.
Swilley’s argument on appeal is based on his attacks on the credibility of the prosecution
witnesses, but the credibility of their testimony was for the jury to resolve, and we will not
interfere with that role on appeal. Id.
III. SEPARATE TRIALS
A. STANDARD OF REVIEW
Welch next argues that the trial court erred by allowing the prosecution to try him and
Swilley jointly. He contends that he requested a separate trial at a hearing on April 11, 2016, but
the record discloses that the hearing on that date was limited to Swilley’s motion for severance,
and the transcript of this hearing makes no mention of a similar request or motion by Welch, nor
does the record contain any written motion for severance filed by Welch. Accordingly, this issue
is unpreserved. People v Dupree, 486 Mich. 693, 703; 788 NW2d 399 (2010). An unpreserved
issue is reviewed for plain error affecting the defendant’s substantial rights. Carines, 460 Mich.
at 763-764. An error is plain if it is clear or obvious, and an error affects substantial rights if it is
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prejudicial, i.e., if it affects the outcome of the proceedings. People v Jones, 468 Mich. 345, 355-
356; 662 NW2d 376 (2003).
B. STANDARD OF REVIEW
In People v Hana, 447 Mich. 325, 346-347; 524 NW2d 682 (1994), our Supreme Court
stated:
Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substantial rights will be prejudiced
and that severance is the necessary means of rectifying the potential prejudice.
The failure to make this showing in the trial court, absent any significant
indication on appeal that the requisite prejudice in fact occurred at trial, will
preclude reversal of a joinder decision.
The Hana Court indicated that neither the existence of inconsistent defenses nor incidental
spillover prejudice is sufficient to require severance. Id. at 349.
Welch asserts that the spillover prejudice resulting from the testimony of Dorsey and
Cannon was too overwhelming and should have resulted in separate trials. Welch contends that
if he had received a separate trial, his jury would not have been exposed to Dorsey’s testimony
that Swilley confessed to shooting Weems or Cannon’s testimony that Welch was present at the
shooting. This argument is without merit. Dorsey testified that Welch borrowed her keys to
enter her apartment and retrieve the gun that Swilley used to shoot Weems. Cannon testified that
he, Swilley, and Welch were riding in a van when they saw Weems walking, and that Welch
stopped the van to allow Swilley to exit and pursue Weems. Cannon’s testimony was probative
of whether Welch aided or abetted Swilley in the shooting of Weems, and Dorsey’s testimony
was probative of whether Welch actively sought to conceal material evidence, which in turn was
probative of Welch’s consciousness of guilt in relation to Weems’s murder. Welch fails to
explain why the testimony of Dorsey and Cannon would not have been admissible against him,
so that severance was necessary to protect his right to a fair trial. Accordingly, Welch has not
established that failure to sever the trials constituted plain error.
IV. ACCOMPLICE INSTRUCTIONS
A. STANDARD OF REVIEW
Both defendants argue that the trial court erred by failing to give special jury instructions
on how to consider testimony offered by an accomplice in relation to the testimony of Cannon
and Dorsey. We review de novo a claim of instructional error, but review for an abuse of
discretion a trial court’s determination whether an instruction applies to the facts of the case.
People v Hartuniewicz, 294 Mich. App. 237, 242; 816 NW2d 442 (2011).
Jury instructions must include all elements of the charged offense and must not
exclude material issues, defenses, and theories if the evidence supports them.
Even if somewhat imperfect, instructions do not create error if they fairly present
the issues for trial and sufficiently protect the defendant’s rights. Error does not
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result from the omission of an instruction if the charge as a whole covered the
substance of the omitted instruction. [People v Canales, 243 Mich. App. 571, 574;
624 NW2d 439 (2000).]
B. ANALYSIS
1. WELCH
Welch did not request the accomplice jury instructions, and his lawyer expressed
satisfaction with the jury instructions given by the trial court. Accordingly, Welch’s claim of
instructional error has been waived. People v Lueth, 253 Mich. App. 670, 688; 660 NW2d 322
(2002).4
2. SWILLEY
Swilley sought to have three instructions read to the jury: M Crim JI 5.4, which addresses
testimony from an undisputed accomplice, M Crim JI 5.5, which addresses the testimony of a
disputed accomplice, and M Crim JI 5.6, which explains how the jury is to evaluate the
testimony of an accomplice. Swilley argues that the undisputed accomplice instruction applied
to Dorsey’s testimony because she was charged with being an accessory after the fact and that
the disputed accomplice instruction applied to Cannon’s testimony because a witness saw three
men running from the crime scene. We disagree.
No evidence placed Dorsey at the scene of the crime or demonstrated that she had any
advance knowledge that Swilley or Welch planned to shoot Weems. Because there is no basis to
conclude that Dorsey could have been charged with the same crimes with which defendants were
charged, she cannot be considered an accomplice to those crimes. See People v Ho, 231 Mich
App 178, 189; 585 NW2d 357 (1998) (disputed accomplice instruction not necessary where the
person in question was not present at the scene of the crime for which the defendant was
charged). Moreover, the trial court protected defendants’ right to a fair trial by instructing the
jury that it could consider the evidence of Dorsey’s plea agreement as it related to her credibility
and self-interest in testifying.
Next, Cannon admitted that he was present when Welch stopped his van to allow Swilley
to exit and pursue Weems. But his mere presence was insufficient to show that he aided or
abetted either Welch or Swilley, People v Norris, 236 Mich. App. 411, 419-420; 600 NW2d 658
(1999), and no evidence supported a finding that Cannon did anything to show that he knowingly
and willingly helped or cooperated with defendants to commit the crime. Accordingly, the trial
court did not abuse its discretion by refusing to give the requested accomplice instructions.
4
Even if the issue had not been waived, however, as explained below in relation to Swilley’s
preserved claim of instructional error, the trial court did not err by refusing to give the requested
accomplice instructions.
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V. MISTRIAL
A. STANDARD OF REVIEW
Swilley argues in both his principal brief on appeal and in his Standard 4 brief that the
trial court abused its discretion by denying his motion for a mistrial because of references to
polygraph tests in recorded telephone conversations between Swilley and Dorsey. We review for
an abuse of discretion a trial court’s decision on a motion for a mistrial. People v Nash, 244
Mich. App. 93, 96; 625 NW2d 87 (2000). “A trial court should grant a mistrial ‘only for an
irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair
trial.’ ” People v Schaw, 288 Mich. App. 231, 236; 791 NW2d 743 (2010), quoting People v
Haywood, 209 Mich. App. 217, 228; 530 NW2d 497 (1995).
B. ANALYSIS
During Dorsey’s testimony, the prosecution played recorded telephone calls between
Dorsey and Swilley. Their conversations included references to both Dorsey and Swilley
refusing to take polygraph tests. No evidence regarding any actual polygraph test or any results
was received. A reference to taking or passing a polygraph test constitutes error, but the error
does not always mandate reversal. Nash, 244 Mich. App. at 97-98. To determine whether
reversal is required, this Court should consider: (1) whether the defendant objected to the
reference and/or requested a cautionary instruction; (2) whether the reference to the polygraph
was inadvertent; (3) whether the reference was repeated or isolated; (4) whether the reference
was made in an attempt to bolster the credibility of a witness; and (5) whether the results of the
polygraph test were admitted or whether the reference was merely to a test having been taken.
Id. at 98.
Application of the Nash factors does not indicate that Swilley was entitled to a mistrial
under the facts presented. The references to polygraph tests were improper; however they were
isolated, fairly vague, and did not indicate that any person had in fact taken a polygraph test, and
there was no disclosure of the results of any polygraph test. There is also no basis for concluding
that the references were introduced in an attempt to bolster the credibility of any witness.
Accordingly, the trial court did not abuse its discretion by denying Swilley’s motion for a
mistrial.
VI. GREAT WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW
Next, Swilley argues in both his principal brief and in his Standard 4 brief that the jury’s
verdicts are against the great weight of the evidence. However, he failed to preserve his great-
weight claim by raising the issue in a motion for a new trial in the trial court. See People v
Cameron, 291 Mich. App. 599, 617; 806 NW2d 371 (2011). “[W]hen a party fails to preserve a
great-weight issue for appeal, an appellate court will look for ‘plain error affecting the
defendant’s substantial rights.’ ” Id., quoting People v Musser, 259 Mich. App. 215, 218; 673
NW2d 800 (2003).
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B. ANALYSIS
A new trial may be granted on some or all of the issues if a verdict is against the great
weight of the evidence. MCR 2.611(A)(1)(e). The test is whether “the evidence preponderates
heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to
stand.” People v Gadomski, 232 Mich. App. 24, 28; 592 NW2d 75 (1998).
Swilley argues that the jury verdict is against the great weight of the evidence because the
testimony of Cannon and Dorsey was not credible because both witnesses gave prior statements
to the police that were inconsistent with their trial testimony, and that both witnesses
acknowledged that they received favorable treatment in exchange for their testimony. However,
the issue of witness credibility ordinarily should be left for the trier of fact, even when the
witness testimony is inconsistent or conflicting. People v Lemmon, 456 Mich. 625, 642-643; 576
NW2d 129 (1998). Cannon and Dorsey both explained their reasons for their prior inconsistent
statements, and the jury was aware of the favorable treatment they received in exchange for their
testimony. Their testimony at trial was not inherently implausible, and it did not defy physical
realities. Therefore, the credibility concerns with their testimony are not a sufficient basis on
which to grant a new trial on the ground that the jury’s verdicts are against the great weight of
the evidence. See Id. at 645-646.
VII. PROSECUTIORAL MISCONDUCT
A. STANDARD OF REVIEW
Swilley argues that reversal is required because the prosecutor improperly used the
perjured testimony of Cannon and Dorsey to obtain his convictions. Swilley did not raise this
argument in the trial court, so the issue is unpreserved. Dupree, 486 Mich. at 703.
B. ANALYSIS
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001). A prosecutor
may not knowingly use perjured testimony to obtain a conviction, and must inform the trial court
and the defendant when a prosecution witness lies under oath. People v Wiese, 425 Mich. 448,
455; 389 NW2d 866 (1986). A prosecutor must correct perjured testimony related to the facts of
the case. People v Gratsch, 299 Mich. App. 604, 619-620; 831 NW2d 462 (2013), vacated in part
on other grounds 495 Mich. 876 (2013).
Swilley’s argument is based on the fact that Cannon admitted at trial that his testimony
differed from his earlier statements to the police. He therefore maintains that Swilley’s trial
testimony was perjurious and should have been described as such by the prosecutor. Swilley
seemingly assumes that because Cannon’s statements to the police were more favorable to him,
Cannon’s trial testimony must have been false. Nothing in the record supports this assumption,
or Swilley’s assertion that the prosecutor was required to characterize Cannon’s trial testimony
as false. More significantly, the fact that Cannon had made an earlier statement that differed
from his trial testimony was fully disclosed to the jury. Therefore, the issues related to Cannon’s
testimony were properly resolved as a credibility decision made by the jury. See Milstead, 250
Mich. App. at 404.
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VIII. INEFFECTIVE ASSISTANCE
A. STANDARD OF REVIEW
Swilley also argues that he was denied the effective assistance of a lawyer because his
lawyer failed to conduct an adequate investigation and call crucial witnesses at trial. Because
Swilley did not raise an ineffective assistance of counsel claim in a motion for a new trial or
request for a Ginther5 hearing in the trial court, our review of this issue is limited to mistakes
apparent on the record. People v Mack, 265 Mich. App. 122, 125; 695 NW2d 342 (2005).
B. ANALYSIS
To establish that his trial lawyer provided ineffective assistance, a defendant must show
that: (1) his lawyer’s representation fell below an objective standard of reasonableness; and (2)
but for his lawyer’s deficient performance, there is a reasonable probability that the outcome of
the proceeding would have been different. People v Vaughn, 491 Mich. 642, 670-671; 821
NW2d 288 (2012). This Court presumes that a defendant’s lawyer rendered effective assistance
and exercised reasonable professional judgment in all significant decisions. Id. at 670. The
decision whether to call or question witnesses is a matter of trial strategy, and the defendant’s
lawyer has wide discretion regarding matters of strategy. People v Heft, 299 Mich. App. 69, 83;
829 NW2d 266 (2012). The failure to call or question a witness or to present certain evidence
constitutes ineffective assistance only when it deprives the defendant of a substantial defense.
People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012). “A substantial defense is one
that might have made a difference in the outcome of the trial.” People v Chapo, 283 Mich. App.
360, 371; 770 NW2d 68 (2009) (quotation marks and citation omitted).
Swilley asserts that telephone records could have shown that he did not call Welch or
Cannon and that he was not in the area where the offense occurred at the time of the shooting.
He has not, however, produced any records or submitted an affidavit stating what any records
would reveal. Moreover, even if records showed that Swilley did not call Welch or Cannon on
the morning of the offense and that his cell phone was not in the area at the time of the shooting,
Swilley fails to explain how such evidence could establish a substantial defense. The testimony
indicated that Swilley was with Welch and Cannon at the time of the offense, so he would not
have had any apparent reason to call them. Furthermore, evidence that Swilley’s phone was not
in the area at the time of the offense would not establish that he was not in the area. Cannon’s
eyewitness testimony placed Swilley at the scene of the shooting and Dorsey’s testimony
supported a finding that Swilley confessed to shooting Weems. Accordingly, Swilley has not
shown that trial counsel’s failure to obtain or present phone records was objectively
unreasonable or resulted in prejudice.
Swilley also complains that his lawyer failed to call witnesses who could have
established an alibi defense, but Swilley has not identified any witnesses or summarized the
substance of testimony they could have provided. Therefore, there is no basis for concluding
5
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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that any witness could have aided Swilley in establishing an alibi defense. Swilley’s claims of
ineffective assistance are, therefore, without merit.
IX. SENTENCING
Finally, Swilley argues that the trial court erred by failing to score the sentencing
guidelines for his convictions of carrying a dangerous weapon with unlawful intent and felon in
possession of a firearm. However, at sentencing, the trial court reasoned that the guidelines do
not apply to first-degree premeditated murder, which carries a mandatory penalty of life
imprisonment without parole, and that the sentences for Swilley’s lesser offenses would be
subsumed by that sentence, so it was not necessary to score the guidelines. Rather than
challenge that decision, Swilley’s lawyer expressly agreed that it was unnecessary to score the
guidelines for Swilley’s lesser offenses. Accordingly, this issue was waived and we will not
address it further. See People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000) (holding that
an issue is waived, i.e., extinguished, if a defendant or his lawyer intentionally relinquishes or
abandons a known rights).
There are no errors warranting relief in either Swilley’s or Welch’s trial. Therefore, we
affirm both defendants’ convictions and sentences.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra
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