People of Michigan v. Marvin Dwayne Noble ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 15, 2016
Plaintiff-Appellee,
v No. 324885
Wayne Circuit Court
MARVIN DWAYNE NOBLE, LC No. 14-000744-01-FC
Defendant-Appellant.
Before: SAAD, P.J., and METER and MURRAY, JJ.
PER CURIAM.
A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a);
carrying a concealed weapon (CCW), MCL 750.227; possession of a firearm during the
commission of a felony, second offense (felony-firearm 2d), MCL 750.227b; and felon in
possession of a firearm, MCL 750.224f. The trial court sentenced defendant as a fourth-offense
habitual offender, MCL 769.12, to life in prison for the first-degree murder conviction, 20 to 30
years in prison for the CCW and felon-in-possession convictions, and five years in prison for the
felony-firearm 2d conviction. Defendant appeals as of right, and we affirm.
Defendant’s convictions arose from the August 5, 2013, shooting death of Dennis
Washington in an alley behind a Rite Aid store at the corner of Vernor Highway and Springwells
Street in Detroit.
I. SUFFICIENCY OF THE EVIDENCE
Defendant first argues that there was insufficient evidence of premeditation and
deliberation to support his conviction of first-degree premeditated murder. He contends that
there was no evidence of any pause between the formation of a specific intent to kill and the
shooting. We disagree.
A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo; we
review the evidence in the light most favorable to the prosecution to determine whether the trier
of fact could have found that the essential elements of the crime were proven beyond a
reasonable doubt. People v Harverson, 291 Mich App 171, 175, 177; 804 NW2d 757 (2010).
“All conflicts with regard to the evidence must be resolved in favor of the prosecution.” People
v Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). Moreover, circumstantial evidence
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and reasonable inferences from the evidence can be sufficient to prove the elements of a crime.
People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
The elements of first-degree premeditated murder are: (1) an intentional killing of a
human being (2) with premeditation and deliberation. People v Hoffmeister, 394 Mich 155, 158-
159; 229 NW2d 305 (1975); People v DeLisle, 202 Mich App 658, 660; 509 NW2d 885 (1993).
“To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major
facets of a choice or problem.” People v Plummer, 229 Mich App 293, 300; 581 NW2d 753
(1998) (citation and quotation marks omitted). Premeditation and deliberation require sufficient
time to allow the defendant to reconsider his actions, or in other words, sufficient time to “take a
second look.” People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999) (citation and
quotation marks omitted). Factors relevant to the establishment of premeditation and
deliberation include: “(1) the prior relationship of the parties; (2) the defendant’s actions before
the killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the
homicide.” Id. (citation and quotation marks omitted).
The evidence showed that defendant had sold drugs to Washington in the past.
Defendant was in a non-exclusive sexual relationship with Joanna Smith, who dropped defendant
off at a Rite Aid store in her black Impala, and a witness heard defendant call Washington to the
alley behind the store, saying, “Hey, man, come here, I want to show you something.” The
witness stated that defendant was “kind of casing the area . . . to see who’s around or whatever.”
A Rite Aid customer, Martha Porter, heard the gunshot and saw a man holding a gun with his
right arm raised. According to the autopsy findings, the gun was pressed against Washington’s
head at the time of firing. Given that defendant only needed time to take a second look, the
evidence that defendant raised a gun to Washington’s head and fired at close range, after calling
him over to “show [him] something” while “casing the area,” supports a finding that defendant
premeditated the killing. See, generally, People v Jackson, 292 Mich App 583, 588; 808 NW2d
541 (2011), and People v Anderson, 209 Mich App 527, 537-538; 531 NW2d 780 (1995).
Afterward, a witness observed, and surveillance video confirmed, defendant running from the
scene. Defendant then called Smith for help to escape from the scene. Defendant’s flight
evidenced his consciousness of guilt. People v Coleman, 210 Mich App 1, 4; 532 NW2d 885
(1995) (evidence of flight is probative because it may indicate consciousness of guilt, although
evidence of flight by itself is insufficient to sustain a conviction). There was sufficient evidence
of premeditation and deliberation to support defendant’s conviction of first-degree premeditated
murder.
II. EFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant raises numerous claims that he was denied the effective assistance of
counsel. We disagree. Although defendant raised his claims of ineffective assistance of counsel
in a posttrial motion, because no Ginther1 hearing was held, our review of this issue is limited to
errors apparent from the record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706
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People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).
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(2007). As this Court explained in People v Gaines, 306 Mich App 289, 300; 856 NW2d 222
(2014):
Effective assistance of counsel is presumed, and defendant bears a heavy burden
of proving otherwise. To demonstrate ineffective assistance, defendant must
show: (1) that his attorney’s performance fell below an objective standard of
reasonableness, and (2) that this performance so prejudiced him that he was
deprived of a fair trial. To demonstrate prejudice, the defendant must show the
existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different. [Citations and quotation marks omitted.]
A. IDENTIFICATION EXPERT
Defendant first argues that defense counsel was ineffective for failing to consult and call
an expert in eyewitness identification to impeach the in-court identifications of defendant by
Esther Garza and Sylvia Gallegos, who saw defendant outside the Rite Aid store at the time of
the shooting.
MCL 775.15 provides a trial court with discretion to appoint an expert witness for an
indigent defendant upon request. People v Carnicom, 272 Mich App 614, 616-617; 727 NW2d
399 (2006). The statute requires a defendant to show that an expert’s testimony is required to
enable the defendant to “safely proceed to a trial . . . .” MCL 775.15. To be entitled to the
appointment of an expert witness,
an indigent defendant must demonstrate a nexus between the facts of the case and
the need for an expert. People v Jacobsen, 448 Mich 639, 641; 532 NW2d 838
(1995). It is not enough for the defendant to show a mere possibility of assistance
from the requested expert. [People v] Tanner, [469 Mich 437, 443; 671 NW2d
728 (2003)]. Without an indication that expert testimony would likely benefit the
defense, a trial court does not abuse its discretion in denying a defendant’s motion
for appointment of an expert witness. Jacobsen, [448 Mich at 641]. [Carnicom,
272 Mich App at 617.]
Nothing in the record demonstrates that an identification expert was necessary for
defendant to safely proceed to trial. MCL 775.15. Through cross-examination, defense counsel
challenged the strength and reliability of Garza’s and Gallegos’s identification testimony, and
elicited discrepancies and arguable bases for questioning the accuracy of the various
identifications. In closing argument, defense counsel argued that Garza’s and Gallegos’s
identifications of defendant should not be believed. He noted that Gallegos and Garza could not
identify defendant in pretrial photographic arrays, and claimed that they only identified
defendant in court because he was “sitting here at the defense table.” Counsel cited
“suggestiveness” and claimed that Gallegos and Garza wanted to help the police, so they tried to
“identify somebody” in court. Defense counsel contrasted their testimony with that of Porter,
who could not identify anyone, and with a witness who identified someone else running from the
scene on surveillance video. Defense counsel also discounted Smith’s testimony as biased and
untrue, arguing that she was only testifying to avoid being charged for Washington’s murder.
Also, defense counsel argued that the physical evidence pointed to a different shooter, who was
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left-handed, not right-handed. Given defense counsel’s cross-examination and thorough
challenge to the identifications in closing, defendant cannot show that defense counsel was
ineffective for failing to request the appointment of an identification expert, or that he was
prejudiced by the absence of such an expert at trial.
We also reject defendant’s request to remand this case for a Ginther hearing. We note
that defendant did not file a separate motion to remand under MCR 7.211(C)(1)(a). Regardless,
defendant has not demonstrated that further factual development is required for appellate
consideration of this issue. See MCR 7.211(C)(1)(a)(ii).
B. WOUND EXPERT
Defendant next argues that defense counsel was ineffective for failing to investigate and
call an expert to testify regarding Washington’s wound, and whether it demonstrated the
handedness of the shooter or whether the shooter was relatively short.
Preliminarily, defendant fails to offer any factual predicate for his claim that defense
counsel failed to investigate an expert opinion about the wound. People v Hoag, 460 Mich 1, 6;
594 NW2d 57 (1999) (a defendant raising a claim of ineffective assistance of counsel bears the
burden of proving the factual predicate of his or her claim). Moreover, nothing in the record
demonstrates that another expert testifying about the wound was necessary for defendant to
safely proceed to trial. MCL 775.15. Defendant claims that the medical examiner, Dr. Jeffrey
Hudson, foreclosed the possibility that the shooter was short and left-handed, but defendant’s
claim is inconsistent with the record. Dr. Hudson specifically declined to offer an opinion about
the height of the shooter or about whether the shooter was right-handed or left-handed. In
closing argument, defense counsel relied on the absence of an opinion in this regard to argue that
the shooter’s physical attributes were different from defendant’s.
Defendant submits, without any factual support, that an expert would have demonstrated
that the issues surrounding handedness and height were “not at all clear.” Again, that testimony
would have been cumulative in light of Dr. Hudson’s corresponding testimony that he could not
offer an opinion on handedness and height. Later in his brief, defendant claims that the
“mannerism of the victim’s wound suggested that the shooter was left handed and short.” Again,
however, defendant offers no factual support for this claim. Hoag, 460 Mich at 6. Dr. Hudson
specifically testified that the wound, alone, did not determine handedness or height, and the only
witness who saw the shooter with a gun at the time of the shooting testified that it was in his
right hand. Therefore, defendant has failed to establish that, but for the failure to call another
expert on the wound, the outcome of the trial would have been different.
C. EXAMINATION OF THE MEDICAL EXAMINER
Defendant also claims that defense counsel was ineffective for failing to object when Dr.
Hudson allegedly testified outside of his area of expertise and regarding hypothetical scenarios.
Because defendant fails to provide citations to the record in support of his argument, it is unclear
which evidence he believes was objectionable. Accordingly, defendant’s argument has been
abandoned. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) (failure to
adequately brief a question on appeal is tantamount to abandoning it).
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D. FAILURE TO MOVE TO SUPPRESS
Defendant next claims that defense counsel was ineffective for failing to move to
suppress the in-court identification of him by Gallegos and Garza. He argues that the in-court
identifications were improper because there was no “independent basis” for them, given that the
witnesses failed to identify him in a pretrial photographic array, and his presence at the defense
table at trial was unduly suggestive.
This Court addressed and rejected a similar argument in People v Barclay, 208 Mich App
670, 675; 528 NW2d 842 (1995), stating:
The need to establish an independent basis for an in-court identification
arises where the pretrial identification is tainted by improper procedure or is
unduly suggestive. People v Laidlaw, 169 Mich App 84, 92; 425 NW2d 738
(1988); People v Syakovich, 182 Mich App 85, 89; 452 NW2d 211 (1989). At no
point has defendant argued that the lineup procedure was improper or unduly
suggestive. Rather, defendant’s argument is premised on the fact that Byrd did
not identify defendant at a pretrial corporeal lineup, but identified him in court (at
the preliminary examination) as the man who poured the gasoline in the store.
The fact that Byrd did not identify defendant at the lineup did not render his
subsequent in-court identification inadmissible. Id. Rather, this was a credibility
issue that was properly before the jury to determine. The trial court did not
commit clear error in allowing the in-court identification testimony.
Just as in Barclay, defendant does not argue that the photographic arrays were improper
or unduly suggestive. The thrust of his claim is that because the witnesses failed to identify him
in the photographic arrays, his presence at the defense table at trial was unduly suggestive. As
this Court explained in Barclay, the inability to identify defendant previously did not render the
subsequent in-court identifications inadmissible. Instead, it created a credibility issue, which, as
discussed earlier, defense counsel relied upon in his cross-examination and closing argument.
Thus, any motion to suppress the in-court identifications would have been futile, and defense
counsel was not ineffective for failing to make a futile motion. People v Thomas, 260 Mich App
450, 457; 678 NW2d 631 (2004).
III. PROSECUTORIAL ERROR
A. DISCLOSURE OF EVIDENCE
Defendant makes numerous claims that the prosecutor violated his right to due process
under Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), by failing to
disclose evidence. We disagree.
Due process demands that a criminal defendant have “a meaningful opportunity to
present a complete defense,” which includes a defendant’s receipt of exculpatory evidence.
People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006) (citation and quotation marks
omitted). A prosecutor must disclose exculpatory and material evidence in his or her possession,
regardless of whether the defendant has asked for the disclosure. People v Schumacher, 276
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Mich App 165, 176; 740 NW2d 534 (2007). To establish a Brady violation, a defendant must
prove: “(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3)
viewed in its totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731
(2014). When evidence is lost or not preserved and the exculpatory value of the evidence is
indeterminate and only potentially useful, a defendant must show that the government acted in
bad faith in failing to preserve the evidence. Arizona v Youngblood, 488 US 51, 57-58; 109 S Ct
333; 102 L Ed 2d 281 (1988); People v Johnson, 197 Mich App 362, 365; 494 NW2d 873
(1992). “[E]vidence that the defense knew of favorable evidence[] will reduce the likelihood
that the defendant can establish that the evidence was suppressed for purposes of a Brady claim.”
Chenault, 495 Mich at 155.
First, defendant argues that the prosecutor failed to provide the results of DNA analysis
of two Pepsi drinks and two straws removed from Smith’s black Impala. Defendant fails to offer
any evidence that the prosecutor suppressed any DNA analysis. Rather, the officer in charge
testified that he sent the evidence to the Michigan State Police, but he never received a report
back. The officer in charge denied that there could be an existing report that neither he nor the
prosecutor had. He explained, “If there was, I would have it.” Further, although the presence or
absence of defendant’s DNA on the Pepsi drinks and straws would have been material to
whether defendant was ever in Smith’s car, that fact was not in dispute—they were in a
relationship and she drove him places. There is simply no evidence that any DNA analysis
would have been favorable to the defense of these charges. Even if defendant’s DNA was not on
the Pepsi drinks or straws, anyone, including Smith, could have left these items in the car at any
time, before or after the shooting. The DNA analysis would not have disproved Smith’s
testimony that she dropped defendant off at Rite Aid—an event that was videotaped. Because
defendant has not shown that the prosecution suppressed the DNA analysis, or that any test
results would have been favorable to his case, he has failed to demonstrate a violation of his
constitutional due process rights.
Second, defendant argues that the prosecutor failed to provide the defense with the
ballistics results from the bullet recovered from Washington. The officer in charge testified
about the bullet on direct examination at trial:
The morgue bullet was sent to the lab for testing, and unfortunately when
we don’t have a weapon to compare it to, they can only give us a best
guesstimate. They can measure it for size and just tell us that it’s larger than this
caliber or smaller than this caliber.
He added that the bullet “was pretty beat up.” At the preliminary examination, the officer in
charge testified that the caliber information would be in a report, which would be in his file. On
cross-examination, he was asked if he would provide the report to defense counsel and he
agreed. Later, the discovery order required any reports from experts that a party might call at
trial to be turned over. The record does not establish whether the report was ever provided to
defendant. However, given the testimony by the officer in charge about his willingness to
provide the report, and the absence of any information indicating that a report was produced and
not disclosed, defendant has not established that the prosecution actually suppressed it.
Moreover, although defendant claims that the report was material and would have been favorable
to his defense, and he claims that he typically carried a gun with an “extended clip” and a report
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could have shown that the bullet did not come from a gun with an “extended clip,” he offers no
scientific evidence that ballistics information regarding one bullet could determine whether it
was fired from a standard-sized clip or an extended clip. Because defendant has not shown that
the prosecution suppressed the report or that it would have been favorable to his case, he has
failed to demonstrate a violation of his constitutional due process rights.
Third, defendant argues that the prosecutor failed to disclose his telephone records and
the telephone records of Washington. Agent Stan Brue, an expert in the forensic analysis of
cellular call records, testified that he did not have cellular telephone records for Washington or
defendant. Defendant offers no contrary proof that the prosecution had the telephone records
and suppressed them. Defendant claims that the telephone records would have discredited
Smith, who claimed that she never went to defendant’s parents’ apartment after the shooting and
defendant instead left in a cab. However, Smith’s own telephone records showed that her
telephone was used in a sector near defendant’s parents’ apartment. Any evidence about
defendant’s non-use of his own telephone to call a taxi would essentially have been cumulative.
In addition, defendant claims that evidence of a lack of telephone communication between
himself and Washington may have discredited David Lee’s testimony that defendant and
Washington engaged in narcotics sales together. However, with no proof regarding those
records, defendant cannot demonstrate that the records would have helped more than hindered
his case. Moreover, there is no evidence that defendant was precluded from access to his own
telephone records and, if they were favorable, he could have made use of them during trial.
Defendant cannot prove that the prosecution suppressed the records and has not shown that they
would have been favorable to his case. He has failed to demonstrate a violation of his
constitutional due process rights.
Fourth, defendant argues that the prosecutor failed to disclose to the defense tacit benefits
that Smith and Lee received in exchange for testifying against him. He notes that Smith was
never charged in this murder and Lee was released from jail. Defendant offers no evidence that
any agreement with Smith was suppressed. Rather, it was clear from the record at trial that the
officer in charge requested charges against both defendant and Smith in this case, but the
prosecutor had declined to sign the warrant against Smith until he interviewed her. Smith
testified that she was not testifying to get herself out of jail.
Similarly, Lee testified at trial that he was not trying to “get out of my crimes.”
Defendant offers no evidence that Lee’s release from jail was a byproduct of his agreement to
testify, as opposed to a mere coincidence in timing, particularly in light of Lee’s explanation that
his probation violation was a minor offense or “nothing.” At the motion for a new trial, the
appellate prosecutor again asserted on the record that there were no agreements between the
prosecution and Smith or Lee. Absent any evidence of suppression, defendant cannot establish a
Brady violation.
B. ADDITIONAL CLAIMS OF PROSECUTORIAL ERROR
Defendant raises additional claims of prosecutorial error, which he failed to preserve with
a contemporaneous objection and request for a curative instruction. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Defendant’s unpreserved claims of prosecutorial error are
reviewed for plain error affecting substantial rights. People v Abraham, 256 Mich App 265, 274;
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662 NW2d 836 (2003). “Reversal is warranted only when plain error resulted in the conviction
of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation
of judicial proceedings, independent of defendant’s innocence.” People v Ackerman, 257 Mich
App 434, 448-449; 669 NW2d 818 (2003). Reversal is not required if a jury instruction could
have cured the error. Id. at 449.
Defendant complains that the prosecutor knowingly allowed perjured testimony to be
introduced at trial. In People v Gratsch, 299 Mich App 604, 619-620; 831 NW2d 462 (2013),
vacated in part on other grounds 495 Mich 876 (2013), this Court stated:
A defendant’s right to due process guaranteed by the Fourteenth
Amendment is violated when there is any reasonable likelihood that a conviction
was obtained by the knowing use of perjured testimony. Accordingly, a
prosecutor has an obligation to correct perjured testimony that relates to the facts
of the case or a witness’s credibility. When a conviction is obtained through the
knowing use of perjured testimony, a new trial is required only if the tainted
evidence is material to the defendant’s guilt or punishment. So whether a new
trial is warranted depends on the effect the misconduct had on the trial. The entire
focus of [the] analysis must be on the fairness of the trial, not on the prosecutor’s
or the court’s culpability. [Citations and quotation marks omitted.]
Defendant claims that the prosecutor allowed Smith to perjure herself. Defendant
references Smith’s testimony that she was at a particular building with defendant before going to
Rite Aid. He claims that she was lying about where she had come from because the building is
north of Rite Aid on Vernor Highway, and a video shows her driving from the south on Vernor
to Rite Aid. From Smith’s testimony, however, the jury could infer that she took an alternate
route to drop defendant off in front of the Rite Aid store. The prosecutor had no duty to correct
Smith’s testimony and defendant cannot establish prosecutorial error on this theory.
Defendant claims that the video was not “played out in its totality” and some was
“purposely omitted.” Defendant does not argue what content was missing from the recording.
Likewise, defendant notes that the surveillance system that recorded the events surrounding the
crimes were not calibrated to real time, but he does not argue how the errant calibration relates to
his prosecutorial error claim. Therefore, these arguments are abandoned. See Kevorkian, 248
Mich App at 389.
Defendant also argues that “the prosecutor mischaracterize[d] the nature of the phone
calls” between defendant and Smith. Defendant states, “[o]mitted . . . from the prosecutor[’]s
argument and witness testimony is a call from Smith to [defendant] at 12:36 p.m. before she
received a call from Appellant at 12:50 p.m.” Contrary to defendant’s claim, evidence of the call
at 12:36 p.m., from Smith to defendant, was introduced at trial through Agent Brue. In addition,
a chart that Agent Brue created regarding the calls to and from Smith’s number on August 5,
2013, was admitted into evidence. In closing argument, the prosecutor did not “omit” the 12:36
p.m. call, but rather maintained that this telephone call demonstrated that Smith and defendant
were in contact, supporting Smith’s testimony that defendant asked her for a ride. Therefore,
defendant’s claim that the 12:36 p.m. call was omitted from the testimony and argument is
inconsistent with the record.
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Defendant next claims that the prosecutor “ ‘omitted’ from the jury . . . Smith’s call to
911 at 12:51 p.m.” Agent Brue only testified that a call was made to 9-1-1 at 12:51:37. He did
not testify that Smith made the call. Defendant’s claim that Smith called 9-1-1 is inconsistent
with the record showing that her telephone was being used on another call with defendant around
the same time. Any claim that the prosecutor erred with regard to the 9-1-1 call fails.
Defendant claims that the prosecutor elicited false or perjured testimony from Smith that
she and defendant went to a particular building after the shooting. Smith testified on cross-
examination that they stayed there for more than an hour. Defendant claims that this testimony
was false because the telephone records show that she was not in that area. At the outset, we
note that the prosecutor was not required to disbelieve Smith’s testimony about where she went
after the shooting because her testimony was possibly contradicted by other evidence.2 See,
generally, People v Lester, 232 Mich App 262, 278-279; 591 NW2d 267 (1998), overruled in
part on other grounds by Chenault, 495 Mich 142. In any event, the prosecutor not only elicited
Smith’s testimony, but also offered into evidence Smith’s telephone records, including the
sectors where each call was made. To the extent that this evidence presented a possible
inconsistency, the prosecutor equipped the jury to evaluate it, in full, and perform its role as the
trier of fact. See People v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007) (“[a]
prosecutor’s good-faith effort to admit evidence does not constitute misconduct”). In addition,
contrary to defendant’s claim on appeal, defense counsel cross-examined Smith about the timing
of Smith’s and defendant’s return to the building. Defense counsel also attacked Smith’s
credibility in other, even more relevant respects, including the fact that she only pointed the
finger at defendant when she faced charges. Defendant has not established a plain error affecting
his substantial rights.
Next, defendant argues that the prosecutor committed error by improperly introducing
other-acts evidence, prohibited by MRE 404(b), about defendant’s drug dealing with Washington
and by failing to provide proper notice of this evidence.
MRE 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
provided, that upon request by the accused, the prosecution shall provide
reasonable notice in advance of trial, or during trial if the military judge excuses
pretrial notice on good cause shown, of the general nature of any such evidence it
intends to introduce at trial.
(2) The prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause
2
The telephone could have been in another’s possession.
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shown, of the general nature of any such evidence it intends to introduce at trial
and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting
the evidence. If necessary to a determination of the admissibility of the evidence
under this rule, the defendant shall be required to state the theory or theories of
defense, limited only by the defendant's privilege against self-incrimination.
Relevant other-acts evidence is admissible unless the proponent’s sole theory of relevance is to
show the defendant’s criminal propensity to prove that he committed the charged offenses.
People v VanderVliet, 444 Mich 52, 63; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
Accordingly, MRE 404(b) is inclusionary rather than exclusionary. Id. at 64. In People v Smith,
282 Mich App 191, 194; 772 NW2d 428 (2009), this Court explained:
In deciding whether to admit evidence of other bad acts, a trial court must
decide: first, whether the evidence is being offered for a proper purpose, not to
show the defendant’s propensity to act in conformance with a given character
trait; second, whether the evidence is relevant to an issue of fact of consequence
at trial; third, [under MRE 403] whether its probative value is substantially
outweighed by the danger of unfair prejudice in light of the availability of other
means of proof; and fourth, whether a cautionary instruction is appropriate.
As defined by MRE 401, “relevant evidence” is evidence that has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
The Michigan Supreme Court has discussed unfair prejudice under MRE 403 as follows:
Obviously, evidence is offered by an advocate for the always clear, if
seldom stated, purpose of “prejudicing” the adverse party. Recognizing this, the
Supreme Court in adopting MRE 403 identified only unfair prejudice as a factor
to be weighed against probative value. This unfair prejudice refers to the
tendency of the proposed evidence to adversely affect the objecting party’s
position by injecting considerations extraneous to the merits of the lawsuit, e.g.,
the jury’s bias, sympathy, anger, or shock. [People v Pickens, 446 Mich 298,
336-337; 521 NW2d 797 (1994) (citation and quotation omitted).]
As the prosecutor argued in closing, the evidence that defendant was a drug dealer who
sold narcotics to Washington was offered for a limited purpose: to establish a reason for the
killing. In particular, the prosecutor argued that a business relationship involving narcotics
between defendant and Washington “could cause there to be a friction that ultimately comes to
the death of . . . Washington . . . .” “Proof of motive in a prosecution for murder, although not
essential, is always relevant, and evidence of other acts to prove motive is admissible under
MRE 404(b)(1).” People v Rice, 235 Mich App 429, 440; 597 NW2d 843 (1999) (citation
omitted).
Although all relevant evidence is prejudicial, People v Murphy (On Remand), 282 Mich
App 571, 582-583; 766 NW2d 303 (2009), the record does not establish that the evidence about
defendant’s drug dealing injected considerations extraneous to the merits of the case, such as
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shock or bias, Pickens, 446 Mich at 337. The trial court instructed the jury on the record when
Lee testified about the drug dealing that the evidence could only be considered for the limited
permissible purposes under MRE 404(b), and that evidence of the drug dealing, itself, was not
evidence that defendant committed the charged crimes. The admission of the other-acts evidence
was not improper. Therefore, defendant cannot establish plain error affecting defendant’s
substantial rights related to the prosecutor’s introduction of this evidence.
Defendant also argues that the prosecutor failed to provide proper notice under MRE
404(b)(2). However, even if the prosecutor plainly erred in this respect, defendant does not
argue how the lack of notice affected his defense. As the prosecutor argued in response to
defendant’s motion for a new trial, defendant effectively had prior notice of the prosecutor’s
intent because he provided Lee’s statement—about drug deals between defendant and
Washington—to defendant during discovery. In addition, the prosecutor elicited similar
testimony about defendant’s drug dealing at the preliminary examination. Absent any evidence
that the outcome of the proceeding would have been different but for the failure to file a formal
notice of intent to present MRE 404(b) evidence at trial, defendant cannot establish that any
notice error affected his substantial rights.
Finally, defendant claims that the prosecutor improperly elicited hearsay testimony from
Lee that Washington may have set defendant up to get robbed for drugs and money. Defendant’s
argument blatantly misrepresents the record. Lee referenced a rumor about Washington setting
defendant up in his August 2013 statement. However, evidence of this rumor was never
introduced at trial. Instead, at trial, Lee testified that he did not know about any disagreement
between defendant and Washington. Defendant’s unsubstantiated claim of prosecutorial error
therefore fails.
IV. DEFENDANT’S STANDARD 4 BRIEF
Last, in a pro se supplemental brief filed pursuant to Supreme Court Administrative
Order No. 2004-6, Standard 4, defendant argues that defense counsel should have objected to the
identifications from the video footage by lay witnesses, who knew both Washington and
defendant, but did not personally observe the events. He argues that their testimony was not
admissible because the jury could watch and evaluate the video itself.
Under MRE 701, a lay witness’s testimony is limited to opinions and inferences that are
rationally based on the witness’s perception and “helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue.” A witness cannot provide his own opinions
when the jury is equally capable of reaching a conclusion; this would invade the province of the
jury. Freed v Salas, 286 Mich App 300, 346-347; 780 NW2d 844 (2009) (opinion of TALBOT,
J.).
In People v Fomby, 300 Mich App 46, 50-51; 831 NW2d 887 (2013), this Court
explained that in United States v Begay, 42 F3d 486, 502 (CA 9, 1994),
an officer provided narrative testimony regarding an enhanced video of a
demonstration involving about 200 demonstrators that resulted in violence. The
officer magnified the videotape, reviewed more than 800 photographs taken
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during the incident, copied portions of the videotape in slow motion, and
enhanced its quality to help his identification of the individuals depicted. He then
added circles and arrows to help the jury follow the defendants’ movements. Id.The United States Court of Appeals for the Ninth Circuit determined that this was
not expert testimony; it was lay witness opinion testimony.
Moreover, the officer’s testimony in Begay was based on his own perceptions of the video itself
after “extensive review.” Fomby, 300 Mich App at 51. The “testimony likely helped the jury
evaluate the videotape because it could reasonably be assumed that ‘one viewing a videotape of a
demonstration involving over 200 people would likely not see certain details, given the
tremendous array of events all occurring simultaneously,’ and the officer’s testimony ‘could help
the jury discern correctly and efficiently the events depicted in the videotape.’ ” Fomby, 300
Mich App at 51-52, quoting Begay, 42 F3d at 503.
In Fomby, 300 Mich App at 49-52, this Court held that it was appropriate for a police
officer to identify individuals among still photographs as the same individuals in a video. This
Court found that the testimony was properly admitted as lay opinion testimony. Id. at 50. It was
helpful to the jury because the officer reviewed six hours of video footage and created the stills
from that footage; therefore, he was in the best position to identify the individuals as being the
same as those in the video. Id. at 52-53. This Court noted that the officer did not identify the
defendant and did not express an opinion regarding the defendant’s guilt. Id. at 49, 53.
The Fomby Court cited the holding in United States v Rodriguez-Adorno, 695 F3d 32, 40
(CA 1, 2012), that testimony is inadmissible under the federal rules of evidence when the witness
is in no better position than the jury to make an identification from a video or photograph.
Fomby, 300 Mich App at 52-53. This Court essentially indicated that identifying a defendant
from a video, at least where the witness is in no better position to do so than the jury, invades the
province of the jury. See also People v Perkins, 314 Mich App 140, 161-162; 885 NW2d 900
(2016), superseded in part on other grounds sub nom People v Hyatt, ___ Mich App ___ (2016).
In this case, Christopher Duvall, David Lee, and Joanna Smith observed the video from
the side of Rite Aid featuring the man with a red hat passing another man wearing black clothing,
and then following him toward the alley behind the store. The witnesses identified the man with
the red hat as Washington and the man wearing black as defendant.3 The witnesses’ testimony
was rationally based on their perceptions because they personally watched the video with the
officer in charge and again at trial. Their identifications were helpful to the jury. They were
friends and acquaintances with Washington (now deceased) and defendant, and recognized them
from neighborhood encounters. Christopher Duvall knew that the clothing they typically wore
resembled the clothing worn by the men in the videos, Smith knew that the clothing defendant
wore on August 5 matched the clothing worn by the man in black, and Lee recognized
3
While Stacie Duvall also said that the man wearing black looked like defendant, her testimony
was cumulative and was not particularly damaging because she said she did not see the same
man in the courtroom.
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defendant’s build, walk, and clothing. As a result, the witnesses could make identifications from
the video despite evidence that the video was blurry. Their personal knowledge allowed them to
make a determination about the identity of the men in the video that the jury was not equally
capable of making. Therefore, pertinent case law is distinguishable and the admission of the
identifications was proper.
In addition, Lee and Smith observed the video of the man running in the alley, and they
both identified him as defendant. The man’s face was not visible in the video. Lee testified that
he recognized that the way the man ran was the exact same way defendant runs. Smith again
recognized defendant’s clothing and observed that the man’s bald head resembled defendant’s
head. Given Lee’s and Smith’s relationships with defendant, they had personal knowledge to
make the identifications from the videos that the jury lacked. Therefore, the admission of their
testimony about the identifications was proper. Because the lay testimony that defendant
challenges was properly admitted, defendant cannot establish that defense counsel was
ineffective for failing to object to it; any objection would have been futile. Thomas, 260 Mich
App at 457.
Affirmed.
/s/ Henry William Saad
/s/ Patrick M. Meter
/s/ Christopher M. Murray
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