People of Michigan v. Robert Bernard Collins ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 3, 2020
Plaintiff-Appellee,
V No. 348957
Genesee Circuit Court
ROBERT BERNARD COLLINS, LC No. 18-042889-FC
Defendant-Appellant.
Before: REDFORD, P.J., and RIORDAN and TUKEL, JJ.
PER CURIAM.
Defendant appeals by right his convictions by a jury of unlawful imprisonment, MCL
750.349b, assault with intent to do great bodily harm less than murder, MCL 750.84, attempted
assault with intent to do great bodily harm less than murder, MCL 750.92(2), felonious assault,
MCL 750.82, domestic violence, MCL 750.81(2), and two counts of first-degree criminal sexual
conduct (CSC-I) while armed with a weapon, MCL 750.520b(1)(e). The trial court sentenced
defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 25 to
40 years each for the CSC-I, unlawful imprisonment, and assault with intent to do great bodily
harm less than murder convictions, 140 to 240 months for the attempted assault conviction, 100 to
180 months for the felonious assault conviction, and 93 days for the domestic violence convictions.
We affirm.
I. FACTS
The complaining witness testified at defendant’s preliminary examination that, after some
marital quarreling, defendant struck her in the face, threatened and cut her with a box cutter,
choked her, then wrapped an extension cord around her neck, and issued death threats. When the
complainant attempted to flee but fell down, defendant forced her back into the bedroom and
sexually assaulted her. Hours later, after defendant fell asleep, the complainant left home and
reported to a hospital emergency room.
In jailhouse phone calls between defendant and the complainant, recordings of which were
played for the jury, defendant variously attempted to cajole the complainant into agreeing that they
had consensual sex, attempted to persuade her not to trust the prosecution, and pressured her not
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to testify at his trial. Despite the prosecution’s efforts to have the complainant come from Illinois
and testify at trial, just before trial she refused to do so.
II. USE OF PRELIMINARY EXAMINATION TESTIMONY
Defendant first argues that the trial court erred by declaring the complaining witness
unavailable for trial and allowing the prosecution to introduce her testimony from the preliminary
examination into the record. We disagree.
We review a trial court’s evidentiary decisions for an abuse of discretion. People v
Martzke, 251 Mich. App. 282, 286; 651 NW2d 490 (2002). “The decision whether to admit
evidence lies within the trial court’s sound discretion and will not be disturbed absent an abuse of
that discretionary authority.” Id. (citation omitted). This includes a court’s determination whether
a witness is unavailable for purposes of relying on that witness’s earlier testimony. People v Bean,
457 Mich. 677, 684; 580 NW2d 390 (1998). A trial court abuses its discretion when its decision
falls outside the range of reasonable and principled outcomes. People v Kahley, 277 Mich. App.
182, 184; 744 NW2d 194 (2007).
“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
“Hearsay is not admissible” except as provided by the rules of evidence. MRE 802. The United
States and Michigan Constitutions both guarantee criminal defendants the right to confront adverse
witnesses. US Const, Am VI; Const 1963, art 1, § 20. Respect for this right is one of the bases
for the general rule against admitting hearsay into evidence. See People v Tanner, 222 Mich. App.
626, 632; 564 NW2d 197 (1997).
One of the exceptions to the general prohibition against hearsay provides that when a
declarant is unavailable to testify at trial, that declarant’s testimony given as a witness at an earlier
hearing is admissible if the party against whom it is offered had an opportunity, and similar
incentive, to examine or cross-examine that witness on that occasion. MRE 804(b)(1).1 Another
hearsay exception applies to “[a] statement offered against a party that has engaged in or
encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant
as a witness.” MRE 804(b)(6).
A. DUE DILIGENCE
For purposes of MRE 804, “availability” includes situations in which the witness “is absent
from the hearing and the proponent of a statement has been unable to procure the declarant’s
attendance . . . by process or other reasonable means, and in a criminal case, due diligence is
shown.” MRE 804(a)(5). The test for due diligence is whether the proponent of the testimony
made a “diligent good-faith effort” to produce the witness for trial. Bean, 457 Mich. at 684. “The
test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether
1
See also MCL 768.26 (“[t]estimony taken at an examination, preliminary hearing, or at a former
trial of the case . . . may be used by the prosecution whenever the witness giving such testimony
can not, for any reason, be produced at the trial”).
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diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts
would have produced it.” Id.
In this case, the trial court held a hearing to decide the issue of due diligence. The
prosecution introduced evidence that the complainant acknowledged receipt of a subpoena to
appear at trial. Testimony of witnesses indicated that the complainant had relocated to Illinois,
and that the prosecution and police had remained in touch with her as trial approached, including
by way of arranging for hotel accommodations for her, but just before trial she declared her
unwillingness to participate. Testimony further indicated that the police and prosecution
responded with efforts to locate her, both in Michigan and Illinois, including with help from the
police in Illinois to check on the complainant’s well-being.
The police officer in charge of the case testified that the complainant telephoned him the
evening before, and “stated that she was upset that the police came out there,” appeared “nervous,
very upset, and stated she was staying with a sister, wouldn’t tell you who, and that she would not
be coming.” The officer added that the complainant indicated that she had been unable to sleep
and was otherwise traumatized since being informed of the trial date, but that the officer
nonetheless had tried to call her again that morning, and also contacted a local hospital and jail to
see if the complainant was at either institution, but to no avail.
The trial court concluded that unavailability had been established under MRE 804(a)(5) for
purposes of admitting the complainant’s preliminary examination testimony under MRE 804(b)(1)
and (6). The record supports the trial court’s decision to recognize the complainant as unavailable
for trial. Therefore, the trial court did not abuse its discretion.
Michigan law does not require the prosecution to seek to compel the complainant’s
presence by involving the state of Illinois for assistance. Defendant acknowledges that our
Supreme Court, in People v Serra, 301 Mich. 124; 3 NW2d 35 (1942), held that the prosecution is
not obliged to apply to the courts of another state for process to compel production of a witness.
Defendant, however, argues that the prosecution had the option to use the procedures set forth in
the uniform act to secure the attendance of witnesses from other states in criminal proceedings,
MCL 767.91 et seq. Although defense counsel initially requested a material witness warrant, over
the prosecuting attorney’s protestation that “[t]here would have to be a rendition proceeding and
things of that nature,” and the trial court in fact expressed a willingness to consider issuing one,
the record does not indicate that the defense persisted with attempts to obtain compulsory service
of process after the complainant’s preliminary examination testimony was read into the record,
and thus does not indicate that the trial court actually made a decision adverse to the defense in the
matter. For these reasons, we conclude that defendant has failed to show that the trial court erred
by ruling that the complainant was unavailable under MRE 804(a)(5).
B. OPPORTUNITY AND INCENTIVE TO CROSS-EXAMINE
Defendant acknowledges that the preliminary examination was a “hearing of the same or a
different proceeding” for purposes of MRE 804(b)(1), but argues that defense counsel at the
preliminary examination did not fully share in the opportunities or incentives to cross-examine the
complainant that would have been present had the complainant appeared at trial. We disagree.
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Defendant points out that preliminary examinations and criminal trials involve different
evidentiary standards, and cites authority for the proposition that an earlier hearing does not satisfy
MRE 804(b)(1) if the two proceedings concerned substantially different issues. Defendant further
asserts that defense counsel at a preliminary examination is more interested in furthering discovery
than in challenging the reliability of prosecution witnesses. Defendant, however, has not identified
any specific aspects of the cross-examination of the complainant at the preliminary examination
in this case that indicate that defense counsel less than vigorously cross-examined the complainant
to impeach her credibility.
Defendant further asserts that defense counsel at the preliminary examination did not have
the benefit of cross-examining the complainant “with regard to new information and strategies
developed between the exam and trial.” Such argument might indeed be compelling if significant
new information or strategic opportunities came to light between the two proceedings. The
defense, however, expressed no such concern and defendant on appeal likewise does not identify
any such new information or opportunity to support his contention.
Further, defendant offers no argument on appeal to rebut the trial court’s conclusion that
the challenged preliminary examination testimony was also admissible under MRE 804(b)(6)
because defendant, by way of his phone calls to the complainant from jail, had attempted to procure
that witness’s unavailability. Defendant complains generally that use of the preliminary
examination testimony denied him his constitutional right to confront adverse witnesses, but MRE
804(b)(1) specifically conditions use of earlier testimony on the adverse party’s having had proper
opportunities and incentives to cross-examine when that testimony was given, and MRE 804(b)(6)
implicitly recognizes that a defendant whose wrongdoing prevented a witness from appearing
thereby forfeits the right to confront that witness. Therefore, defendant has brought no
constitutional infirmity to light. Defendant has failed to show that the trial court abused its
discretion by declaring the complainant unavailable for trial, or by allowing use of her testimony
from the preliminary examination.
III. OTHER BAD ACTS
Defendant next argues that the trial court abused its discretion by admitting evidence that
defendant committed a violent act of criminal sexual conduct in 1990. We disagree.
We review a trial court’s evidentiary decisions for an abuse of discretion. Martzke, 251
Mich. App. at 286. This includes a trial court’s decision whether to admit evidence of prior bad
acts. Kahley, 277 Mich. App. at 184.
MRE 404(b)(1) provides that evidence of other bad acts is not admissible to prove a
person’s character to show behavior consistent with other wrongs, but such uncharged conduct
may be admissible for other purposes, “such as proof of motive, opportunity, intent, preparation,
scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident
when the same is material . . . .” In this case, the prosecution filed a notice of intent2 to present
evidence under MRE 404(b) that defendant committed an earlier sexual assault and defense
2
See MRE 404(b)(2).
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counsel filed objections. The trial court heard arguments on the issue in a pretrial hearing, then on
the first day of trial ruled that the evidence would be admitted. The following day, the prosecution
stated that it had provided defense counsel with a death certificate for the earlier complainant, ST,
and asked the court to declare her unavailable and to allow use of that witness’s preliminary
examination testimony. The transcript of ST’s preliminary examination testimony was ultimately
admitted by stipulation of the parties.
In that earlier proceeding, ST testified that defendant, whom she knew only as someone
who lived across the street who had once asked to borrow her lawnmower, appeared on her porch
at 4:00 a.m. one morning, told her to “shut up” when she asked through a closed window what he
was doing, then broke her window. ST ran to her kitchen and called the police, but defendant
came to a side door near the kitchen, and “started breaking the glass out of that,” then reached
through that opening to begin unlocking the door, upon which she hung up her phone and ran
upstairs and grabbed her rifle. ST testified that the police called back, and from her upstairs
bedroom phone, while continuing to hear the sounds of breaking glass, she reported that a man
was breaking in. When things seemed to have quieted down, ST entered her hallway, where she
saw defendant “more or less crawlin’ up the stairs.” ST testified that she attempted to raise her
rifle, but defendant pulled it away and threw it on the floor, then pushed her into her bedroom and
started forcibly disrobing her. Over her protestations, defendant forced her onto the bed, twice
struck her in the face, pulled his pants down, forced her to perform fellatio on him, then forced her
to endure sexual intercourse. The police then arrived and apprehended defendant.
Defendant argues that this testimony described events too dissimilar to what the instant
complainant alleged to be of probative value and that it was extremely prejudicial to him.
Although the trial court was presented with a difficult decision, we cannot conclude that the trial
court abused its discretion by admitting the evidence. Evidence of prior bad acts under MRE
404(b) is admissible if it is offered for a proper purpose, if it is relevant, and if its probative value
is not substantially outweighed by unfair prejudice. People v Crawford, 458 Mich. 376, 385; 582
NW2d 785 (1998). A proper purpose is one other than establishing the defendant’s character to
show his propensity to commit the offense. People v VanderVliet, 444 Mich. 52, 74; 508 NW2d
114 (1993), amended 445 Mich. 1205 (1994).
In People v Mardlin, 487 Mich. 609, 615-616; 790 NW2d 607 (2010) (citations omitted),
our Supreme Court explained:
To admit evidence under MRE 404(b), the prosecutor must first establish
that the evidence is logically relevant to a material fact in the case, as required by
MRE 401 and MRE 402, and is not simply evidence of the defendant’s character
or relevant to his propensity to act in conformance with his character. The
prosecution thus bears an initial burden to show that the proffered evidence is
relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is
otherwise probative of a fact other than the defendant’s character or criminal
propensity. Evidence relevant to a noncharacter purpose is admissible under MRE
404(b) even if it also reflects on a defendant’s character. Evidence is inadmissible
under this rule only if it is relevant solely to the defendant’s character or criminal
propensity. Stated another way, the rule is not exclusionary, but is inclusionary,
because it provides a nonexhaustive list of reasons to properly admit evidence that
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may nonetheless also give rise to an inference about the defendant’s character. Any
undue prejudice that arises because the evidence also unavoidably reflects the
defendant’s character is then considered under the MRE 403 balancing test, which
permits the court to exclude relevant evidence if its “probative value is substantially
outweighed by the danger of unfair prejudice . . . .” MRE 403. Finally, upon
request, the trial court may provide a limiting instruction to the jury under MRE
105 to specify that the jury may consider the evidence only for proper, noncharacter
purposes.
In this case, the trial court provided a lengthy explanation for its decision to admit the
evidence, and in the process expressed serious discomfort with how admitting such evidence for a
proper purpose might nonetheless suggest propensity. The trial court analyzed the evidence,
considered defendant’s claim that the sex had been consensual, the material issues of defendant’s
motive, intent, state of mind, and conduct during the commission of the offenses, the victim’s state
of mind, and defendant’s phone calls to the victim, and compared this case with the evidence of
the prior bad act. The trial court noted that factual differences existed between the two incidents
but found that evidence of the prior bad act had relevance to the issues of motive and intent. The
trial court then considered whether the probative value of such evidence would be substantially
outweighed by unfair prejudice. It concluded that it would not.
On appeal, defendant argues that ST’s account of what defendant did to her was dissimilar
in almost every respect to the allegations underlying the instant case. The record reflects that the
trial court acknowledged the differences between the two cases but also recognized as a key
commonality that both complainants alleged that defendant persisted with sexual aggression
despite their protestations and inflicted violent blows to the victims’ heads. Although defense
counsel did not expressly invoke the defense of consent, she did acknowledge that sexual relations
were part of the marital relationship, and, as the trial court noted, the jailhouse telephone calls
presented the theory of consent. Defendant protests that “[a]ny motivation or intent regarding a
violent sexual assault of a stranger bears no relationship to anything at issue in this case,” but does
not follow that assertion with any explanation why differing degrees of familiarity with the victims
militates against recognizing the similarities in an assailant’s conduct during the commission of
the same or similar bad acts. Defendant further argues that, according to the instant complainant,
by the time the sexual relations took place, defendant’s “rage was winding down and she believed
that he felt sorry for her.” The record, however, reflects that the complainant in this case also
testified that she did not resist defendant’s sexual advances and assaults out of continuing fear
induced by defendant’s severe aggression and threats. Although the evidence established that the
offenses in this case occurred in relation to a domestic quarrel between husband and wife, such
facts do not negate the similarities or preclude admission of the evidence to establish motive,
intent, or system of doing an act.
The trial court indicated that the balancing of the probative value of the challenged
evidence against its potential for unfair prejudice presented a close question. We agree, and thus
bear in mind that a court’s decision on a close evidentiary question ordinarily cannot constitute an
abuse of discretion. People v Sabin (After Remand), 463 Mich. 43, 67; 614 NW2d 888 (2000);
People v Bahoda, 448 Mich. 261, 289; 531 NW2d 659 (1995).
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Defendant also argues that reliance on ST’s testimony violated his constitutional right to
confront adverse witnesses, see US Const, Am VI; Const 1963, art 1, § 20, on the ground that “[i]t
is unknown whether the attorney representing [defendant] during the preliminary exam ‘had an
opportunity and similar motive to develop the testimony by direct, cross, or redirect
examination.’ ” Defendant, however, has not developed this argument further, except by referring
to his similar argument in connection with admission of the complainant’s preliminary
examination testimony which lacks merit. For the same reasons set forth previously we find no
merit to defendant’s argument in this regard.
Further, defendant failed to preserve appellate objections. The record, in fact, indicates
that the parties stipulated to the admission of the transcript of ST’s testimony. Defense counsel’s
agreement on the record to that action taken below constitutes an affirmative waiver of objections
extinguishing his claim of error on appeal. See People v Carter, 462 Mich. 206, 214-216; 612
NW2d 144 (2000) (affirmative waiver extinguishes appellate objections); People v Barclay, 208
Mich. App. 670, 673; 528 NW2d 842 (1995) (a criminal defendant may not assign error on appeal
to something the defendant’s lawyer deemed proper at trial). For these reasons, we reject
defendant’s challenges to the use of ST’s testimony regarding the 1990 incident.
IV. STATEMENTS RELATING TO MEDICAL DIAGNOSIS OR TREATMENT
At trial, defense counsel expressly declined to object to admission of an exhibit containing
medical records from the complainant’s emergency room visit and also did not object when a
physician’s assistant read for the jury the notes she contributed to that exhibit that described what
the complainant told her. Similarly, defense counsel expressly declined to object to admission of
an exhibit consisting of the report resulting from the complainant’s sexual assault examination,
and also did not object when the nurse and head of a sexual assault response team who performed
that examination and prepared the report read for the jury statements therein attributed to the
complainant. Both recitations substantially confirmed what the complainant had stated in her
preliminary examination testimony with minor variations.
On appeal, defendant asserts that the testimony from those medical practitioners did not
constitute admissible hearsay under the exception set forth in MRE 803(4) for “[s]tatements made
for purposes of medical treatment or medical diagnosis in connection with treatment and
describing medical history, of past or present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof insofar as reasonably necessary to such
diagnosis and treatment.” Defendant also argues that defense counsel provided ineffective
assistance for failing to object in this regard.
Defendant relies on Merrow v Bofferding, 458 Mich. 617, 630; 581 NW2d 696 (1998),
where the Supreme Court generally reaffirmed the validity of the hearsay exception for medical
records, but held that “the statement in the medical record” that the plaintiff “had a fight with his
girlfriend” before suffering the injury for which he sought treatment “was not reasonably necessary
for diagnosis and treatment and, thus, falls outside the rationale underlying the exception.”
Similarly, this Court in People v DePlanche, 183 Mich. App. 685, 690; 455 NW2d 395 (1990), held
that “the identity of an assailant cannot be characterized as the ‘general cause’ of an injury, and
such testimony was not of the sort contemplated by the drafters of MRE 803(4).” Accordingly,
had defense counsel wished to narrow the scope of the two medical witnesses’ testimony to avoid
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naming defendant as the assailant, or describing the nature or causes of domestic tensions other
than actual violence suffered, counsel may have had some success.3 But because the challenged
evidence came from medical records, and the two witnesses each suggested that a broad scope of
background information had use for medical purposes, the trial court did not commit plain error
for not having sua sponte enforced a narrower application of the operative hearsay exception.4
Further, defense counsel apparently chose to approach the defense in a way that comported
with the now challenged testimony. A defendant pressing a claim of ineffective assistance of
counsel must overcome a strong presumption that counsel’s tactics were matters of sound trial
strategy. People v Henry, 239 Mich. App. 140, 146; 607 NW2d 767 (1999). “This Court does not
second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the
benefit of hindsight.” People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012). “That
in hindsight a strategy was not completely successful does not render it unreasonable and does not
render counsel’s assistance ineffective.” People v Trakhtenberg, 493 Mich. 38, 63; 826 NW2d 136
(2012).
No issue of mistaken identity existed here, and defense counsel conceded in closing
argument that domestic violence took place. Defense counsel stated: “Obviously something
happened. He admitted to putting his hands on her. Find him guilty of domestic violence. He
said so and I’m not going to make an excuse for that because it’s wrong. Everything else there’s
a reasonable doubt about.” It is not ineffective assistance of counsel to concede lesser crimes in
hopes that the display of candor will help avoid a guilty verdict on greater ones, People v Wise,
134 Mich. App. 82, 98; 351 NW2d 255 (1984), provided that the defendant has not expressly
instructed defense counsel to not concede guilt as to any count. See McCoy v Louisiana, ___ US
___, ___; 138 S. Ct. 1500, 1507-1512; 200 L. Ed. 2d 821 (2018). There is nothing in the record that
defendant expressly instructed his counsel to not proceed as he did.
Further, defense counsel did not expressly assert the defense of consent, but rather
emphasized reasons to doubt the complainant’s credibility. That the complainant provided nearly
identical accounts of the key events in question at the preliminary examination and to the two
3
We note that because the challenged testimony consisted of reading from medical documents that
were themselves admitted into evidence, any such endeavor would logically have included moving
for redaction of those documents in kind. Defendant’s appellate objections, however, do not
include making issue of the admission of those documentary exhibits.
4
Where a hearsay declarant’s statement is testimonial in character, and that declarant does not
appear at trial or is otherwise not available to testify, and where the defense has had no opportunity
to cross-examine that declarant, those testimonial statements are not admissible even if they fall
under an established exception to the general hearsay prohibition. Crawford v Washington, 541
U.S. 36, 53-54, 68; 124 S. Ct. 1354; 158 L. Ed. 2d 177 (2004). In this case, the prosecution argues
that the complainant’s statements to the medical providers were not testimonial in nature, but
defendant on appeal does not assert that those statements were testimonial. Because defendant
raised no objection regarding testimonial hearsay concerning these two witnesses below, and has
not raised any such issue on appeal, defendant has waived the issue and we need not consider it.
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witnesses who testified at trial did not undercut that defense posture, but in fact comported with
the defense theory that the complainant had manufactured her allegations or otherwise consistently
mischaracterized what took place. To the extent that the various accounts did not align perfectly,
defense counsel took advantage of the opportunity to highlight those irregularities during cross-
examination. Further, pursuing that strategy involved little risk, because, as defendant points out,
the challenged testimony from the two medical witnesses was substantially cumulative to the
complainant’s own testimony, the earlier presentation of which minimized the potential for unfair
prejudice resulting from the recitation of her similar accounts as told to two others. See People v
McRunels, 237 Mich. App. 168, 185; 603 NW2d 95 (1999) (competent testimony that is duplicative
of improperly admitted testimony can militate against the conclusion that a party was harmed by
the error). Accordingly, we reject defendant’s challenges to the testimony of the two medical
witnesses.
V. INSTRUCTION ON FLIGHT
Defendant argues that the trial court erred by providing the jury with an instruction on a
criminal suspect’s fleeing or hiding.5 We disagree.
To the extent that instructional issues involve questions of law, appellate review is de novo,
but we review for an abuse of discretion a trial court’s determination whether an instruction is
applicable to the facts of the case. People v Gillis, 474 Mich. 105, 113; 712 NW2d 419 (2006).
Instructions should cover all material issues and theories that have evidentiary support. People v
Daniel, 207 Mich. App. 47, 53; 523 NW2d 830 (1994). “Conversely, an instruction that is without
evidentiary support should not be given.” People v Wess, 235 Mich. App. 241, 243; 597 NW2d 215
(1999).
In this case, the trial court’s instructions to the jury after the close of proofs included the
following:
There has been some evidence that the defendant ran away after the alleged
crime. This evidence does not prove guilt. A person may run or hide for innocent
reasons, such as panic, mistake, or fear. However, a person may also run or hide
because of a consciousness of guilt. You must decide whether the evidence is true,
and, if true, whether it shows that the defendant had a guilty state of mind.
In overruling defense counsel’s objections to providing the instruction, the trial court noted
that the standard instruction referred to “some,” not necessarily abundant or otherwise compelling
evidence of flight, and spoke of the efforts the police undertook to find defendant, which “included
going to his house and also another address, and trying to find him, and . . . he made himself scarce
for three days.” Testimony from the police officer in charge of the case supported the trial court’s
conclusion. The officer stated that, within hours of the assault, the complainant gave permission
and provided her keys for the police to enter the home she shared with defendant, where she had
left him, and that she also suggested an alternative location for him. When the police promptly
reported to the residence, however, defendant was not present. Nor did officers dispatched to the
5
See M Crim JI 4.4(2).
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alternative location find him there. The officer in charge stated that he asked dispatch to “ping”
defendant’s cell phone in hopes of determining its location, but that “they believed it was turned
off.”
After failing to locate defendant during the first day of the investigation, the officer in
charge turned the search over to “people who actually can sit on houses or investigate further
through that and that’s all they have to do.” When an e-mail from the complainant later provided
additional information, defendant was apprehended by what the officer called the “Fugitive Task
Force.” The latter team was sent to the residence and watched it from noon until 3:00 p.m., during
which time officers knocked on the door without answer. Then defendant, after not answering
their knocking on the door, finally left the residence from the back door.
Defendant argues that neither leaving his home nor returning to it constitutes flight for
present purposes. However, the challenged instruction recognizes not only fleeing, but also hiding,
as possibly indicating a guilty mind, which permitted the jury to consider that possibility on the
basis of only “some evidence.” We hold that the evidence that the police could not find defendant
at all on the first day, including by responding promptly to a location where he had been left
sleeping, and attempting to use cell phone signals, and that the fugitive apprehension team could
not find him over the two days that followed until an e-mail tip led the police back to the home
where they found him only as he attempted to leave through the back door after three hours of
observation during which he declined to respond to knocking at the door, provided a sufficient
evidentiary basis that justified the trial court’s giving the challenged instruction. Further, the trial
court guarded against any possibility that the jury would attach too much significance to the
evidence that defendant seemed to be avoiding the police after the subject incident by beginning
its instruction with the admonishment that such evidence itself “does not prove guilt.” Therefore,
the trial court did not err in this regard.
VI. CUMULATIVE ERROR
Defendant suggests that if no single claim of error itself warrants reversal, such relief is
nonetheless required in the face of the cumulative effect of all such errors. See People v Cooper,
236 Mich. App. 643, 659-660; 601 NW2d 409 (1999). Because defendant has failed to bring any
error to light, this argument is unavailing.
Affirmed.
/s/ James Robert Redford
/s/ Michael J. Riordan
/s/ Jonathan Tukel
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