People of Michigan v. Steven Henry Erquhart ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 12, 2019
Plaintiff-Appellee,
v No. 339281
Oakland Circuit Court
STEVEN HENRY ERQUHART, LC No. 2016-260695-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for aggravated stalking, MCL
750.411i, and assault and battery, MCL 750.81. We affirm.
This case arises out of a series of incidents involving defendant, his ex-girlfriend Mary
Beth Hughey, and her close friend Warren Michael Williams. In May 2014, defendant followed
Hughey and Williams out of a strip mall parking lot and purposely rear-ended Williams’s car at a
high rate of speed. Later, in February 2015, defendant accosted Williams as he was walking out
of a building where Hughey worked. Williams tried to run away, but defendant chased him,
tackled him, slammed his face into the ground, and began kicking Williams’s head and ribs.
Williams sustained injuries, and in March 2015, Williams obtained a personal protection order
(PPO) against defendant.
One day in March 2016, Hughey began receiving incessant calls, text messages, and
voicemails from defendant. Eventually, Hughey texted defendant and asked him to leave her
alone. That same day, Hughey and Williams were standing in the parking lot of Hughey’s
apartment and saw defendant in a car nearby. Williams’s PPO against defendant was still active.
Defendant stepped out of the car holding a handgun and threatening to “F [sic] [them] up,” so
Williams and Hughey ran toward Hughey’s apartment complex, which had an exterior stairwell.
Williams and Hughey managed to barricade themselves in Hughey’s third-floor apartment.
Defendant attempted to kick-down the door and failed. Williams and Hughey called 911, but
before police arrived, defendant fled. Defendant later called police and told them “that he wasn’t
involved in anything” that had taken place at Hughey’s apartment, and “that the female part of
the residence had called him to say she had called the Novi Police Department to get him in
trouble.” Police later arrested defendant.
I. PROSECUTORIAL MISCONDUCT
Defendant argues that, at trial, the prosecutor committed prosecutorial misconduct by (1)
eliciting testimony from Officer Timothy Farrell about his opinion on defendant’s guilt and the
credibility of the victims, (2) encouraging the jury to believe the officers of the Novi Police
Department during closing argument, and (3) informing the jury that a judge had previously
found defendant guilty of harassing Williams. We disagree.
Generally, “[i]ssues of prosecutorial misconduct are reviewed de novo to determine
whether the defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich. App.
465, 475; 802 NW2d 627 (2010). However, defendant failed to properly preserve this issue for
appeal by making a contemporaneous objection to the prosecutor’s disputed remarks, raising the
issue of prosecutorial misconduct, and requesting a curative instruction. See id. Thus, this
Court’s review is for plain error affecting substantial rights. People v Perry, 317 Mich. App. 589,
600; 895 NW2d 216 (2016). “To avoid forfeiture under the plain error rule, three requirements
must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights.” People v Carines, 460 Mich. 750, 763; 597 NW2d 130
(1999). “The third requirement generally requires a showing of “prejudice, i.e., that the error
affected the outcome of the lower court proceedings.” Id. Reversal is warranted where the plain
error leads to “the conviction of an actually innocent defendant,” or where an error affects the
“fairness, integrity, or public reputation” of the proceeding. Id. at 763-764.
“[T]he test of prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). A defendant’s
right to a fair trial “can be jeopardized when the prosecutor interjects issues broader than the
defendant’s guilt or innocence.” Id. at 63-64. “To determine if a prosecutor’s comments were
improper, we evaluate the prosecutor’s remarks in context, in light of defense counsel’s
arguments and the relationship of these comments to the admitted evidence.” People v Seals,
285 Mich. App. 1, 22; 776 NW2d 314 (2009).
Defendant first contends that the prosecutor engaged in prosecutorial misconduct while
questioning Officer Farrell, who responded to the 911 calls made after defendant chased
Williams and Hughey into Hughey’s apartment building. Defendant alleges that the prosecutor
improperly asked Officer Farrell his opinion on defendant’s guilt. The testimony in question is
as follows:
Q. [Y]ou believed that—after Novi Police Department’s investigation you
believed a crime had occurred?
A. Yes.
Q. Okay. You believed the [person] responsible for that was who? The
person responsible for the crime?
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A. [Defendant], per the witnesses.
Although “[a] witness may not opine about the defendant’s guilt or innocence in a
criminal case,” People v Heft, 299 Mich. App. 69, 81; 829 NW2d 266 (2012), MRE 701 allows
any witness, including police witnesses, to testify “in the form of opinions or inferences” that are
“(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of
the witness’ testimony or the determination of a fact in issue.” Thus, under MRE 701, police
officers may present testimony about “the steps of their investigations from their personal
perceptions.” Heft, 299 Mich. App. at 83.
Leading up to the prosecutor’s contested questions, the prosecutor asked Officer Farrell
to detail all the steps of his investigation up to that point. The prosecutor then asked Officer
Farrell not about his opinion on defendant’s guilt but about his opinion on the results of his
investigation, i.e., whether a crime occurred and, if so, who the evidence suggested perpetrated
the crime. In response to those questions, Officer Farrell testified that his investigation
suggested that a crime occurred and gave the potential identity of the culprit, “per the witnesses.”
Officer Farrell was thus explaining the steps of his investigation, and, under MRE 701, his
testimony was permissible. See Heft, 299 Mich. App. at 83.
We also note that the prosecutor’s questions and Officer Farrell’s testimony were in
direct response to defendant’s theory of the case. In his opening, defendant emphasized that the
police officer’s investigation did not find evidence to support that a crime was committed. In
response, the prosecutor questioned the investigating officer—Officer Farrell—about the details
of his investigation and whether the evidence from that investigation supported that a crime was
committed. Because the prosecutor’s questions were in direct response to defendant’s
arguments, it does not amount to prosecutorial misconduct. See Seals, 285 Mich. App. at 22.
On appeal, defendant attempts to argue that the prosecutor’s questions were not in
response to defendant’s theory of the case. In so doing, defendant attempts to distinguish the
investigation from Officer Farrell, explaining that defendant’s arguments were about the
investigation and not “the opinions or judgments of any person” (emphasis omitted). Yet Officer
Farrell was the investigating officer, and there would be no investigation without the
investigating officer. An investigation is not limited to physical evidence, as defendant seems to
suggest, but also includes the investigating officer’s inferences drawn from that evidence and the
officer’s experience, as well as the officer’s interviews of the witnesses. Thus, defendant’s
attempted distinction between the investigation and the investigating officer’s testimony is
artificial and unconvincing.1
Defendant also contends that this line of questioning and Officer Farrell’s responses
amounted to improper witness vouching. “It is generally improper for a witness to comment or
provide an opinion on the credibility of another witness, because credibility matters are to be
1
Defendant also contends that Officer Farrell’s opinion-of-guilt testimony violated defendant’s
due process rights. For reasons already explained, Officer Farrell did not opine on defendant’s
guilt or innocence, so defendant is not entitled to relief on his claimed due-process violation.
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determined by the jury.” Dobek, 274 Mich. App. at 71. In context, Officer Farrell was not
commenting on the credibility of Williams or Hughey, but, as already explained, on the results of
his investigation: that a crime was committed, and that the evidence suggested that the identity of
the culprit was defendant. Officer Farrell did not testify, either explicitly or implicitly, that
Williams’s or Hughey’s testimonies were true or worthy of belief.
Defendant also quotes a portion of the prosecutor’s questioning of Officer Farrell where
the prosecutor asked “if you didn’t believe a victim or if you didn’t believe that what they were
saying or telling the police, it’s not like you would request charges if they were incredible,” and
asserts that this, too, amounted to eliciting improper witness vouching. Defendant does not
quote the rest of the prosecutor’s question, in which she asked Officer Farrell if he would
“request charges” if he “didn’t believe a situation happened?” Officer Farrell responded to the
prosecutor’s questions by saying that she was “[c]orrect,” but explaining that he does not request
charges; all he does is “forward the reports,” and it was not his “job to decide . . . what . . . to
charge [people] with.” We cannot agree that this is equivalent to vouching for the witnesses.
The prosecutor appeared to be asking if Officer Farrell would put a witness’s outrageous
statement into his reports, and Officer Farrell responded that he would not, but explained that it
was ultimately not his job to decide what was true or not, and he simply forwarded his reports
and let others make the charging decisions.
With respect to all of defendant’s claimed errors related to Officer Farrell allegedly
vouching for the victims’ testimonies, we would conclude that, even if his testimony was
improper, it did not prejudice defendant. See Carines, 460 Mich. at 763. As this Court
commented in Dobek, 274 Mich. App. at 71, “[g]iven that [the investigating officer] was called as
a witness by the prosecutor and that a criminal prosecution against [the] defendant was pursued,
the jurors surely understood that [the investigating officer] believed that the victim was telling
the truth even without the disputed testimony.” Any juror here would have understood, from the
simple fact that the case was being tried, that Officer Farrell believed that there was merit to the
victims’ testimonies, and so defendant cannot establish prejudice.
Defendant next argues that the prosecutor committed prosecutorial misconduct and
denied him his right to due process by encouraging the jury to “believe the Novi Police
Department.” The full paragraph of the prosecutor’s closing argument states as follows:
The Novi Police Department. I’m glad [defense] counsel tells you to keep
believing them, that they’re the best police officers. I would agree. And in fact,
they submitted this case for a warrant from our office. They believed the
defendant was culpable for what happened that day. They submitted that warrant
to our office. So yes, please, please believe the Novi Police Department.
Defendant contends that the prosecutor improperly vouched for the credibility of the officers of
the Novi Police Department during closing argument. A prosecutor may not “vouch for the
credibility of his witnesses to the effect that he has some special knowledge concerning a
witness’ truthfulness.” People v Bahoda, 448 Mich. 261, 276; 531 NW2d 659 (1995). However,
as previously noted, when analyzing whether prosecutorial misconduct occurred, this Court
“must examine the entire record and evaluate a prosecutor’s remarks in context.” Dobek, 274
Mich. App. at 64.
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The prosecutor made the statement at issue during the rebuttal to defense counsel’s
closing argument, wherein defense counsel, while arguing that Williams and Hughey fabricated
the allegations against defendant, stated:
It makes sense why the police would do an investigation and not find
anything. . . . [I]f [Williams and Hughey] aren’t telling the truth[,Officer Farrell]
wouldn’t find any witnesses, any gun, any evidence, any damage to the door.
* * *
We don’t have some one horse town police officer. I mean, we literally have—if
Novi isn’t the best police department in Michigan, it’s one of the top three. I
mean, if you graduate from the academy, you want to be in West Bloomfield,
Bloomfield, you want to be [in] Novi.
* * *
So like I said in the beginning, I’m asking you to believe the police investigation,
not the two people you don’t know [Williams and Hughey].
Remarks that may be improper in some contexts can be deemed permissible if the
prosecutor is responding to an argument made by defense counsel. Dobek, 274 Mich. App. at 64.
The prosecutor’s remarks here were made in response to defense counsel’s assertion that the jury
should believe Officer Farrell’s testimony, because Officer Farrell testified that he did not find a
gun or any direct evidence that would have solidified defendant’s link to the alleged crime. The
prosecutor was explicitly responding to portions of defense counsel’s closing argument. Indeed,
the prosecutor’s contested statements were less a response to defense counsel’s argument and
more a reiteration of that argument; the prosecutor asked jurors to do what defense counsel said
and believe the results of the Novi Police Department’s investigation. The prosecution and
defense counsel simply had different interpretations of what the police department’s
investigation implied. According to defense counsel, the lack of evidence corroborating
Williams’s and Hughey’s statements implied that those statements were fabricated, whereas the
prosecution contended that the department’s investigation tended to show that there was a crime
and that defendant was the culprit. The prosecution did not imply that she had some special
knowledge about a witness’s credibility, see Bahoda, 448 Mich. at 276, but was instead
permissibly responding to defense counsel’s argument, see Dobek, 274 Mich. App. at 64. Thus,
the prosecutor did not commit prosecutorial misconduct.2
2
Defendant references the prosecutor’s statement to “believe the Novi Police Department” in
arguing that his due process rights were violated. Defendant does not claim that this statement
independently violated his due process rights, but rather “compounded [the] error” of Officer
Farrell’s opinion-of-guilt testimony. Again, because Officer Farrell did not testify about his
opinion on defendant’s guilt, defendant’s claimed due-process violation does not entitle him to
relief.
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Finally, defendant argues that the prosecutor engaged in prosecutorial misconduct by
impermissibly shifting the burden of proof when, during closing argument, the prosecutor told
the jury that a judge had already made a determination regarding the elements of aggravated
stalking under MCL 750.411i. The prosecutor’s contested argument was as follows:
[F]irst of all, I do want to talk about the PPO, because that was filed with the
court. Not anybody can get a PPO. You have to show prior allegations, prior
incidences. It has to go before a judge and the judge signed off on that PPO. And
if you look at that PPO, it’s a valid PPO.
That's telling right there. So not only did he have a PPO, but he had a
court say, yeah, you know what? This guy’s harassed you so much that we think
that you need a PPO to personally protect you so that he’s not around you.
Defendant argues that to prove that defendant committed the crime of aggravated stalking, the
prosecutor was required to show that defendant engaged in “repeated or continuous harassment”
of Williams. MCL 750.411i(1)(d). Thus, according to defendant, the prosecutor was required to
prove that defendant chased Williams and Hughey through Hughey’s apartment complex in
March 2016, and that he ran into Williams’s car in May 2014 and assaulted him in a parking lot
in February 2015.
In support of his argument, defendant cites to People v Hudson, 123 Mich. App. 624; 333
NW2d 12 (1982). In Hudson, the trial court gave the jury instructions on the difference between
probable cause and proof beyond a reasonable doubt, and erroneously informed the jury that
“there was probable cause to believe that the defendant had committed the offense.” Id. at 625.
This Court found that a defendant was entitled to a new trial because the jury instructions were
“likely to place the burden of proof on the defendant to prove his innocence.” Id. This Court
ultimately held that “[t]he burden of proof in a criminal case may not be placed on the defendant
and instructions of the trial judge susceptible of any such interpretation are erroneous.” Id.
The caselaw cited by defendant is distinguishable and does not properly support his
argument. Hudson pertains to jury instructions given by a trial court, wherein the court
explicitly stated that there was probable cause to find the defendant guilty. See People v Reed,
393 Mich. 342, 351; 224 NW2d 867 (1975) (explaining that it is reversible error for a court to
invade the province of the jury by instructing “that an essential element of a criminal offense
exists, as a matter of law”). Conversely, here, the prosecutor made the contested statement.
And, importantly, the PPO was entered into evidence, and it suggested what the prosecutor
argued: that a judge determined that defendant previously engaged in acts harassing Williams. A
prosecutor is free to argue the evidence and all reasonable inferences arising from it. Bahoda,
448 Mich. at 282. The trial court also instructed jurors that the prosecutors’ arguments were not
evidence, and jurors are presumed to follow their instructions. People v Graves, 458 Mich. 476,
486; 581 NW2d 229 (1998). “No error requiring reversal will be found if the prejudicial effect
of the prosecutor’s comments could have been cured by a timely instruction.” People v Watson,
245 Mich. App. 572, 586; 629 NW2d 411 (2001). Thus, we cannot conclude that the
prosecution’s argument impermissibly shifted the burden to defendant. Rather, the prosecution
made permissible arguments based on the evidence, and the trial court properly instructed jurors
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to not accept any of the prosecutor’s arguments as evidence. Defendant is not entitled to relief
on this claim of prosecutorial misconduct.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel because counsel
failed to object to the admission of an addendum to the PPO, failed to argue that defendant had
no actual notice of the PPO, and failed to object to the instances of prosecutorial misconduct
already discussed. We disagree.
“Whether the defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan Constitutions is a mixed question of fact and law.” People
v Ackley, 497 Mich. 381, 388; 870 NW2d 858 (2015). When examining a defendant’s claim of
ineffective assistance of counsel, “this Court reviews for clear error the trial court’s findings of
fact and reviews de novo questions of constitutional law.” People v Dixon-Bey, 321 Mich. App.
490, 515; 909 NW2d 458 (2017). However, because defendant failed to file a motion for a
Ginther3 hearing or a new trial on this ground, this Court’s review is “limited to mistakes
apparent on the record.” People v Payne, 285 Mich. App. 181, 188; 774 NW2d 714 (2009).
“In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). Effective assistance is “strongly
presumed,” People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012), and the defendant
bears the burden of proving otherwise, People v Hampton, 176 Mich. App. 383, 385; 439 NW2d
365 (1989). Counsel’s performance cannot be judged with the “benefit of hindsight.” People v
Unger, 278 Mich. App. 210, 242-243; 749 NW2d 272 (2008).
Trial counsel has wide discretion regarding trial strategy “because counsel may be
required to take calculated risks to win a case.” Heft, 299 Mich. App. at 83. A court cannot
substitute its judgment for that of trial counsel concerning matters of trial strategy. Payne, 285
Mich. App. at 190. There is a strong presumption that trial counsel’s performance was strategic,
Unger, 278 Mich. App. at 242, and defendant bears the burden of overcoming this presumption,
People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008). The fact that a trial strategy fails
does not mean that its use constitutes ineffective assistance of counsel. People v Petri, 279 Mich
App 407, 412; 760 NW2d 882 (2008). But the strategy must, in fact, be sound; a court must not
insulate the review of counsel’s performance by calling it trial strategy. People v Douglas, 496
Mich. 557, 585; 852 NW2d 587 (2014).
Defendant first argues that defense counsel was ineffective for failing to object to the
admission of an addendum to the PPO because it contained evidence that was prejudicial to
defendant. The evidence in the addendum that was prejudicial to defendant related to statements
Williams made in the addendum alleging various acts of harassment against Williams by
3
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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defendant, describing defendant as “dangerous,” and alleging that there were warrants out for
defendant’s arrest in Wayne County.
Assuming that it was objectively unreasonable for defense counsel not to move to
exclude the addendum, defendant cannot establish prejudice. Williams testified about many of
the incidents in the addendum, and that testimony was corroborated by Hughey. Those incidents
went back to 2014 and led to Williams getting a PPO against defendant. Defendant does not
contest that the PPO itself was properly admitted. Williams and Hughey also both testified about
the events in March 2016 where defendant tried to kick down Hughey’s front door after
confronting Hughey and Williams in Hughey’s apartment building’s parking lot. Officer Farrell
testified that he responded to the Hughey’s apartment building after Williams and Hughey placed
911 calls, and he photographed a footprint on Hughey’s steel apartment door. Officer Farrell
noticed that both Hughey and Williams were “very upset” and “[s]eemed to be frightened.”
When Officer Farrell went back to the police station, he received a call from defendant saying
“that he [defendant] wasn’t involved in anything” that had taken place at Hughey’s apartment.
Defendant’s phone records show that he incessantly contacted Hughey on the day of the attack,
attempting to contact her over 100 times beginning at 7:30 a.m. In light of the overwhelming
evidence of defendant’s guilt, there is simply no probability that the admission of the prejudicial
evidence in the addendum to the PPO affected the outcome of these proceedings, so defendant is
not entitled to a new trial on this claim of ineffective assistance. See Trakhtenberg, 493 Mich. at
51.
Defendant next argues that defense counsel was ineffective for failing to challenge
whether defendant had actual notice of the PPO. Defendant was charged with aggravated
stalking, which “consists of the crime of ‘stalking,’ MCL 750.411h(1)(d), and the presence of an
aggravating circumstance specified in MCL 750.411i(2).” People v Threatt, 254 Mich. App. 504,
505; 657 NW2d 819 (2002). The aggravating circumstances that were applied to defendant were
MCL 750.411i(2)(a) and (c). MCL 750.411i(2)(a) and (c) state as follows:
(2) An individual who engages in stalking is guilty of aggravated stalking
if the violation involves any of the following circumstances:
(a) At least 1 of the actions constituting the offense is in violation of a
restraining order and the individual has received actual notice of that restraining
order or at least 1 of the actions is in violation of an injunction or preliminary
injunction.
* * *
(c) The course of conduct includes the making of 1 or more credible
threats against the victim, a member of the victim’s family, or another individual
living in the same household as the victim. [Emphasis added.]
Thus, the prosecution was required to prove “actual notice” to convict defendant of aggravated
stalking.
At the preliminary hearing, Deputy Matthew Doss testified that he personally served the
PPO on defendant on April 1, 2015. Although Doss testified that he did not recall specifically
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serving the PPO on defendant due to the number of PPOs he regularly served, he testified that he
would not have written that he served defendant if he had not done so and verified defendant’s
identity. This evidence establishes that defendant was personally served with the PPO, and
therefore establishes that he had actual notice. As this evidence was sufficient to establish that
defendant was actually served with the PPO, defense counsel’s failure to raise the issue at trial
does not amount to ineffective assistance. See People v Putman, 309 Mich. App. 240, 245; 870
NW2d 593 (2015) (explaining that defense counsel’s failure to raise a meritless objection did not
deny defendant the effective assistance of counsel).
Defendant makes several unconvincing arguments on appeal. First, he argues that
Officer Farrell’s report states that, according to LIEN, the PPO was never served on defendant,
which could have been used at trial to challenge the service of the PPO. But the PPO itself states
that it was served and it was signed by Deputy Doss, and Deputy Doss’s testimony corroborates
this. Thus, even if defense counsel had raised the statement from Officer Farrell’s report, there is
no reasonable probability that it would have affected the outcome of the proceedings.
Trakhtenberg, 493 Mich. at 51.
Second, defendant relies on Threatt, 254 Mich. App. at 507, for the proposition that
“ ‘actual notice’ is not the equivalent of service,” and requires evidence from which defendant’s
actual knowledge of the PPO could be inferred. Defendant is correct that actual notice does not
mean service, but by establishing that the PPO was served on defendant, the prosecution
established that defendant had actual notice. Threatt only recognized that service was not a
requirement of actual notice; it did not recognize that actual notice was not satisfied by service.
Next, defendant argues that he was denied the effective assistance of counsel because
counsel failed to object to the instances of prosecutorial misconduct already mentioned. As
previously discussed, defendant has not sufficiently demonstrated that any of the alleged
instances of prosecutorial misconduct resulted in plain error affecting his substantial rights.
Nevertheless, “a failure to satisfy the plain-error test will not, without more, foreclose a
defendant’s claim of ineffective assistance of trial counsel.” People v Randolph, 502 Mich. 1, 5;
917 NW2d 249 (2018).
As already noted, the prosecutor’s questioning of Officer Farrell involved questions about
the investigation that led Officer Farrell to conclude that a crime had been committed and who
perpetrated the crime. The content of Officer Farrell’s testimony suggests that he was explaining
the results of his investigation, not delivering a baseless opinion about defendant’s guilt or
innocence. The prosecutor did not commit misconduct by asking Officer Farrell about the steps
of his investigation, see Heft, 299 Mich. App. at 83, and defense counsel cannot be ineffective for
failing to raise a meritless objection, Putman, 309 Mich. App. at 245. And even if counsel was
ineffective for not objecting, defendant cannot establish prejudice. See Dobek, 274 Mich. App. at
71 (“Given that [the investigating officer] was called as a witness by the prosecutor and that a
criminal prosecution against [the] defendant was pursued, the jurors surely understood that [the
investigating officer] believed that the victim was telling the truth even without the disputed
testimony.”).
Defendant next argues that defense counsel was ineffective for failing to object the
prosecutor encouraging the jury to “please believe the officers of the Novi Police Department.”
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As already explained, the statement was made in response to defense counsel’s closing
argument, in which defense counsel also encouraged the jury to believe the Novi Police
Department based on the lack of direct evidence discovered during Officer Farrell’s
investigation. Since the prosecutor’s statement was made in response to an argument made by
defense counsel, the prosecution did not commit misconduct, and defense counsel’s failure to
object was not ineffective assistance. Putman, 309 Mich. App. at 245.
Finally, defendant argues that defense counsel was ineffective for failing to object to the
prosecutor’s statement in her closing argument that a judge had already made a determination
regarding the elements of aggravated stalking. However, as already explained, the prosecutor
was not impermissibly shifting the burden of proof to defendant, but permissibly making
arguments based on the evidence presented. Defendant does not dispute that the PPO was
properly entered into evidence. We cannot conclude that defense counsel was ineffective for
failing to raise a meritless objection to the prosecutor’s arguments based on the PPO. Id.
Accordingly, defendant was not denied the effective assistance of counsel.
III. RIGHT OF CONFRONTATION
Defendant argues that the trial court denied him his right to confront the witnesses against
him by refusing to allow him to impeach Hughey and Williams with evidence that Hughey had
written a comment on a Facebook post regarding defendant and that Williams frequently
watched a television show about stalking. We disagree.
The Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . .” US Const, Am VI.
The Michigan Constitution also “afford[s] a criminal defendant the right to be confronted with
the witnesses against him, [and] adopt[s] th[e] language of the federal Confrontation Clause
verbatim . . . .” People v Nunley, 491 Mich. 686, 697; 821 NW2d 642 (2012) (quotation marks
and citation omitted). Although a defendant has a right to confrontation via the
cross-examination of witnesses, a court—under MRE 611(a)—is required to “exercise
reasonable control over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.” People v Willis, 322 Mich. App. 579, 591; 914 NW2d 384 (2018), quoting MRE
611(a) (quotation marks omitted). The trial court is given “wide latitude to impose reasonable
limits on cross-examination to ensure relevancy or because of concerns regarding such matters as
harassment, prejudice, confusion of the issues, and repetitiveness.” People v Biddles, 316 Mich
App 148, 153; 896 NW2d 461 (2016).
Defendant contends that he was denied the right to confront the witnesses against him
based on the trial court’s refusal to allow him to introduce evidence of a comment made by
Hughey on a Facebook post. Defendant argues that the Facebook comment supported his theory
that Hughey lied about the events that led to his conviction out of jealousy because defendant
was with another woman. The Facebook post that Hughey commented on was created by an
unknown Facebook user. The Facebook user’s name and photograph are not shown in the
photocopy of the post that defense counsel sought to admit into evidence. The original Facebook
post by the unknown user states: “God bless the one who said Yes . . . lol,” and Hughey’s
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comment states: “this fool is getting married . . . After all the shit we went threw [sic] . . . lol[.]”
The posting is dated “December 16,” but does not have a year.
In general, “[l]imitation[s] on cross-examination that prevent[] a defendant from placing
before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness
might be inferred constitutes denial of the constitutional right of confrontation.” People v
Gaines, 306 Mich. App. 289, 316; 856 NW2d 222 (2014) (quotation marks and citation omitted).
Based on the photocopy of the Facebook post here, we cannot infer any potential bias from
Hughey against defendant. Hughey never mentions defendant by name or otherwise establishes
that she is referring to defendant. Indeed, any context is severely lacking. It is unclear if the
original post is from Hughey—in which case it suggests possible amusement, but certainly not
jealousy—or whether it is from defendant, in which case Hughey’s comment may suggest
jealousy. Alternatively, the post could be from a third party, and Hughey’s comment could be
referring to her relationship with that third party, or Hughey’s comment could be in response to a
third party’s post and could be referring to a relationship she had with a fourth party. And all of
this is against the backdrop that we cannot determine when this exchange took place because the
photocopy of the Facebook post has no year with its date. All said, with more information about
the context of this Facebook post, it is possible that it suggests what defendant contends that it
suggests. But, based on the information that defendant provided to the trial court and on appeal,
that context is lacking. As it now stands, the post and comment—by themselves and lacking
context—do not suggest that Hughey was jealous of, and therefore biased against, defendant. In
short, defendant has not established that the Facebook post has any relevance to this case.
Because a defendant does not have the right to cross-examination of irrelevant issues, id.,
defendant’s right of confrontation was not denied by the trial court’s decision to not admit the
photocopy of the Facebook post.
Additionally, defendant argues that he was denied his right of confrontation when the
trial court declined to allow defense counsel to question Williams about a television show that he
frequently watched, which covered the topic of stalking. Defendant believes that the evidence
was relevant for impeachment purposes because it would have shown that Williams was aware
of the elements of the crime of aggravated stalking and used that knowledge to press false
charges against defendant.
Evidence that Williams watched a television show that included the topic of stalking was
only minimally relevant. Defense counsel did not proffer evidence to show that Williams knew
the elements of the crime of stalking or that he could have gleaned the information needed to lie
about a crime from the television show. Moreover, introduction of Williams’s watching of a
television show on stalking would have introduced issues that would likely have confused and
mislead the jury because it would, as phrased by the prosecution, inject “extraneous
considerations about the legal accuracy of the information provided by a cable television show.”
Additionally, watching a television show regarding the crime of stalking does not increase the
likelihood that Williams lied about defendant’s crime. As this Court has noted, “[t]he right of
cross-examination is not without limit; neither the Confrontation Clause nor due process confers
an unlimited right to . . . cross-examine on any subject.” People v Adamski, 198 Mich. App. 133,
138; 497 NW2d 546 (1993). “Cross-examination may be denied with respect to collateral
matters bearing only on general credibility, as well as on irrelevant issues.” People v Canter,
197 Mich. App. 550, 564; 496 NW2d 336 (1992). Accordingly, because the evidence that
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Williams watched a television show on stalking is not relevant to whether Williams would lie
about the charges against defendant, the trial court properly denied defendant’s request to use
that evidence to impeach Williams.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
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