20240201_C365018_43_365018.Opn.Pdf ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 1, 2024
Plaintiff-Appellee,
v No. 365018
Genesee Circuit Court
MARQUON LEON JACKSON, LC No. 22-049711-FC
Defendant-Appellant.
Before: HOOD, P.J., and REDFORD and MALDONADO, JJ.
HOOD, P.J. (concurring)
I concur in the result. I agree with the bulk of the majority’s analysis and conclusions,
including its conclusion that MRE 403 prohibited the defense from asking whether the complainant
was a member of a terrorist organization and its implications for the trial court’s decision on the
mistrial and double jeopardy. But I would also conclude that the trial court’s initial decision
regarding MRE 404(a)(2) was correct. Without more, MRE 404(a)(2) does not permit a party to
use an individual’s membership in a violent organization (whether a terrorist organization, gang,
or other group with a reputation for violence) as a synecdoche for character for aggression. See
People v Bynum, 496 Mich 610; 852 NW2d 570 (2014); People v McGowan, unpublished per
curiam opinion of the Court of Appeals, issued July 15, 2021 (Docket No. 351094).1 On this single
aspect of the evidentiary issue, I disagree with the majority.
The majority accurately describes the background of this case, a murder trial following
defendant Marquon Leon Jackson shooting and killing Mozzaffer Khogaly, where self-defense is
the central issue. Critically, three days before trial, the prosecution provided the defense with a
dashcam video of Jackson’s arrest, on which an officer stated: “I just ran the victim. He’s . . .
flagged as being part of a possible terrorist organization.” At trial, when cross-examining
Khogaly’s cousin, a prosecution witness, the defense asked, “You know that he’s a member of a
1
Though unpublished and thus nonbinding, we may still consider McGowan for its persuasiveness.
People v Otto, ___ Mich App ___, ___ n 11; ___ NW2d ___ (2023) (Docket No. 362161); slip op
at 12 n 11.
-1-
terrorist organization—.” Although there are obvious foundational issues with this evidence,2 the
defense appears to have had a good-faith basis for asking the question. The trial court initially
ruled that the defense could not ask about membership in a terrorist organization, but could ask if
the cousin was aware of “any acts of aggression, violence, intimidation, and so forth.” It later
revisited its ruling and granted a prosecution motion for a mistrial.
Acknowledging that the trial court erred by indicating the defense could inquire into
specific acts of aggression, violence, and intimidation, the trial court’s initial ruling, excluding the
defense’s question about membership in a terror organization, was correct, and I would rely on it
as a separate basis for affirming the outcome in this case. Put simply, membership in or allegiance
to a violent or hateful group is not admissible under the portion of MRE 404(a)(2) that permits
evidence of a victim’s character for aggression.
The majority correctly identifies the standards of review. We review de novo the trial
court’s interpretation of the rules of evidence, and its decisions regarding the admissibility of
evidence for an abuse of discretion. People v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015).
See also People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002) (“[A] trial court’s decision on
a close evidentiary question ordinarily cannot be an abuse of discretion.”).
MRE 404(a)(2)(B) is a niche rule that provides parties in a criminal case a unique
mechanism for introducing character evidence related to victims, when self-defense is an issue.
See MRE 404(a)(2); Harris, 458 Mich at 318-319; 583 NW2d 680. In its relevant parts the rule
provides:
Exceptions for a Defendant or Victim in a Criminal Case. The following
exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if
the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) in a homicide case, when self-defense is an issue, the defendant may
offer evidence of the alleged victim’s trait for aggression, and if the evidence is
admitted, the prosecution may:
(i) offer evidence of the defendant’s same trait; and
2
It remains unclear what prompted the officer’s comment. The record is silent on, and counsel
for both sides appear unaware of, what the officer was looking at when he made the statement.
Assuming the officer was reading a law enforcement database entry, it is unclear what database he
was reading or the source or reliability of the information. Those issues are not presently before
us.
-2-
(ii) offer evidence of the alleged victim’s trait for peacefulness to rebut
evidence that the alleged victim was the first aggressor[.] [MRE 404(a)(2)(A) and
(B).3]
As the majority correctly observes, this rule permits introduction of two types of evidence: (1)
evidence of the victim’s violent character to show that the victim was the likely aggressor, and (2)
evidence of the victim’s violent character to show that the defendant acted out of self-defense.
Harris, 458 Mich at 320-321. Only one of these is at issue here. Because Jackson did not know
Khogaly, evidence of Khogaly’s violent character could not bear on self-defense, as Jackson did
not know him or his reputation. But it could bear on whether Khogaly was the first aggressor.
Regarding this subset of 404(a)(2) evidence, this Court has explained that specific incidents of
conduct are not admissible to demonstrate a victim is the first aggressor:
Evidence concerning the aggressive character of a homicide victim, even if
the defendant was unaware of it at the time, is admissible in furtherance of a self-
defense claim to prove that the victim was the probable aggressor. However, this
type of character evidence may only be admitted in the form of reputation
testimony, not by testimony regarding specific instances of conduct unless the
testimony regarding those instances is independently admissible for some other
reason or where character is an essential element of a claim or defense. The
victim’s character is not an essential element of defendant’s self-defense claim.
[People v Orlewicz, 293 Mich App 96, 104, 809 NW2d 194 (2011), remanded on
other grounds by 493 Mich 916, 823 NW2d 428 (2012) (citations omitted).]
Further, the first-aggressor prong of MRE 404(a)(2) permits evidence of the victim’s character, not
evidence of an entire group. Cf. People v Bynum, 496 Mich 610, 627; 852 NW2d 570 (2014)
(interpreting MRE 404(a)(1) and holding that under MRE 404(a) “ an expert may not testify that,
3
The Michigan Rules of Evidence were recently amended, effective January 1, 2024. The prior
version of MRE 404(a)(2) was substantially the same. It provided:
(a) Character Evidence Generally. Evidence of a person’s character or a
trait of character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of character offered
by an accused, or by the prosecution to rebut the same; or if evidence of a trait of
character of the alleged victim of the crime is offered by the accused and admitted
under subdivision (a)(2), evidence of a trait of character for aggression of the
accused offered by the prosecution;
(2) Character of Alleged Victim of Homicide. When self-defense is an issue
in a charge of homicide, evidence of a trait of character for aggression of the alleged
victim of the crime offered by an accused, or evidence offered by the prosecution
to rebut the same, or evidence of a character trait of peacefulness of the alleged
victim offered by the prosecution in a charge of homicide to rebut evidence that the
alleged victim was the first aggressor[.]
-3-
on a particular occasion, a gang member acted in conformity with character traits commonly
associated with gang members.”).
I would conclude that without more, evidence of Khogaly’s membership in a violent group
is inadmissible under MRE 404(a)(2) for three reasons: (1) precedent from our Supreme Court
suggests this is the correct approach, see Bynum, 496 Mich at 623-631; (2) in unpublished but
persuasive opinions, this Court has interpreted MRE 404(a)(2) as excluding such evidence, see,
e.g., People v McGowan, unpub op at 7-8 (relying on Bynum to hold that MRE 404(a)(2) precluded
evidence that victim was a member of a gang known to be especially violent and, therefore, the
victim acted in conformity with this violence on the day in question); and (3) using group
membership as evidence of individual character for violence runs afoul of the lodestar of the
Michigan Rules of Evidence: reliability.
Our Supreme Court has held that group membership is inadmissible as character evidence
under MRE 404(a). See Bynum, 496 Mich at 623-631. In People v Bynum, our Supreme Court
held that MRE 404(a) barred the prosecution from introducing evidence of a defendant’s gang
membership to prove that he acted in conformity with traits commonly associated with gang
members. Id. During a trial for first-degree murder and other shooting-related charges, the
prosecution introduced expert testimony on the subject of gangs, gang membership, and gang
culture, including expertise about local gangs. Id. at 618. The Court held that while expert
testimony on gang culture generally was admissible, the witness “veered into objectionable
territory when he opined that Bynum had acted in conformity with his gang membership with
regard to the specific crimes in question.” Id. at 630-631. Specifically, using the gang membership
and the character traits associated therewith to describe what the expert saw on the surveillance
video was violative of MRE 404(a). See id.Although Bynum has several differences from this case,4 most notably that it analyzed the
general provisions of MRE 404(a), rather than the specifics of MRE 404(a)(2), its reasoning is
sound and applicable to this case. Just as the Bynum Court excluded evidence of a gang’s character
to show that a gang member acted in conformity with that character during a given incident, I
would conclude that evidence of Khogaly’s membership in a terror organization (or any violent
organization) is not evidence of Khogaly’s individual character, let alone conduct in conformity
with that character that would suggest he was the first aggressor.
At least one unpublished case from this Court has reached the same conclusion that MRE
404(a)(2) does not permit offering group membership as evidence of character for violence or
aggression. McGowan, unpub op at 7-8. See also People v Hawkins, unpublished per curiam
opinion of the Court of Appeals, issued March 30, 1999 (Docket No. 203832), pp 3-4 (affirming
trial court decision to exclude testimony that the victim had acted in conformity with a known
character trait: carrying a gun; citing approvingly State v Zamora, 140 Ariz 338; 681 P2d 9214
Bynum dealt with the general prohibitions on character evidence under MRE 404(a), not the
carveout provided in MRE 404(a)(2). Further, Bynum addressed the issue through the lens of
expert testimony, which is not at issue in this case. Despite these differences, the underlying
principle that group character is not evidence of individual character or conduct in conformity with
group character on a given day, is sound.
-4-
(App, 1984)).5 In McGowan, this Court affirmed the trial court’s decision that evidence of the
victim’s gang affiliation was not admissible under MRE 404(a)(2). McGowan, unpub op at 7-9.
There, the defendant appealed his convictions for second-degree murder and other charges
stemming from a shooting death. Id. at 1-2. Prior to trial, the court granted the prosecution’s
motion in limine to exclude evidence of the victim’s involvement in a local gang with a reputation
for violence. Id. at 2. This Court affirmed the trial court’s finding, relying on Bynum’s holding
that evidence of gang membership “creates the risk that a jury will reach the impermissible
conclusion that a person ‘acted in conformity with [his] gang membership with regard to the
specific crimes in question.’ ” Id. at 8, citing Bynum, 496 Mich at 630-631 (alteration in
McGowan). In McGowan, we further observed that the defendant seemingly wanted to “introduce
evidence of the victim’s gang affiliation for this exact purpose—to demonstrate that the victim
was a member of the Zone 8 gang and Zone 8 members are known to be especially violent—and,
therefore, the victim acted in conformity with this violence on the day in question.” McGowan,
unpub op at 8. We concluded that the trial court correctly recognized this problem and excluded
any reference to the victim’s gang membership. Id. at 8-9.
This reasoning from Bynum, which dealt with the general provisions of MRE 404(a), and
McGowan, which dealt with group membership under MRE 404(a)(2), is sound and applicable to
this case, where Jackson seeks not to admit evidence of Khogaly’s gang affiliation, but rather, his
membership in a terror organization. When considering the admissibility of the defense’s question
(“You know that he’s a member of a terrorist organization”) or even a question tailored more
closely to the statement on the dashcam recording (i.e., “[H]e’s flagged as being part of a possible
terrorist organization”), we must consider the purpose for which it is offered. MRE 404(a) and
Bynum indicates that such questioning is prohibited under MRE 404(a), and McGowan persuades
me that such questioning is also prohibited under MRE 404(a)(2), whether the line of questioning
expected direct evidence of character for violence, or was a foundational question leading to
evidence of character for violence.
First, if the question was not foundational, but rather direct evidence of character for
violence or aggression, the questioning and related inferences are too attenuated to fit within the
niche exception to prohibitions on character evidence that MRE 404(a)(2) provides. On its own
the question invites a juror to conclude (1) that all terrorist organizations are violent (a reasonable
enough inference if we put aside that we still do not know what “possible terrorist organization”
Khogaly was “flagged” as being a part of); (2) that an organization imbues any member with the
5
In People v Hawkins, we affirmed the trial court’s exclusion of testimony that the victim acted
in conformity with a known character trait: carrying a gun. Hawkins, unpub op at 3-4. We
ultimately held “that carrying a gun may be evidence of an underlying character trait, but is not a
character trait itself,” finding it more akin to acts or habit. Id. at 4. In reaching this conclusion,
this Court acknowledged the dearth of case law in this area and relied on State v Zamora, an
Arizona Court of Appeals case, as persuasive authority. Id., citing Zamora, 140 Ariz at 338.
There, the court upheld the exclusion of evidence of the victim’s gang membership under the
Arizona counterpart to MRE 404(a)(2), concluding that such evidence “was not relevant to
whether the victim had an aggressive character, and that such evidence would be properly
classified as prior acts rather than as a character triat.” Hawkins, unpub op at 4, citing Zamora,
140 Ariz at 341.
-5-
character of the organization; (3) that Khogaly’s membership in a possible terrorist organization
imbued him with a character for violence; and (4) that once imbued with a character for violence
associated with the organization, he likely was the aggressor with Jackson on the day Jackson shot
him. Bynum prohibits this sort of derivative character evidence, and I would read that prohibition
as extending to MRE 404(a)(2) as we did in McGowan.
Second, if the question was merely foundational—a lead-up to questions about Khogaly’s
individual character—then it was completely unnecessary. The defense did not need to establish
Khogaly’s membership in a suspected terrorist organization in order to ask his cousin whether
Khogaly individually had a violent character. Counsel could have just asked the question. Without
more,6 defense counsel’s questions were unnecessary or irrelevant to the issue of character.
Finally, the admissibility of this line of questioning tests the limits of the fundamental
function of our rules of evidence: reliability. See People v King, 297 Mich App 465, 474; 824
NW2d 258 (2012) (noting that Michigan’s rules of evidence are “designed to assure both fairness
and reliability in the ascertainment of guilt and innocence”) (quotation marks and citations
omitted). Put simply, whether Khogaly was a member of a terror organization has limited bearing
on his individual character for violence let alone his conduct in conformity with that character on
the day of his killing.
I would conclude that the trial court’s initial determination, that this line of questioning
was impermissible, was correct. I would affirm for this reason in addition to the majority’s analysis
of MRE 403, with which I agree.
/s/ Noah P. Hood
6
I acknowledge the possibility that there may be cases where one’s group membership or
adherence to hateful or violent ideology may be otherwise relevant and admissible. For example,
if there were other evidence that the confrontation in this case was a result of Khogaly acting based
on ideology related to a terrorist organization (i.e., an Islamic terrorist engaging in an act of
violence for purported religious motivations, or a Klansman engaging in an act of violence based
on race), such evidence may be admissible under other provisions within the Michigan Rules of
Evidence. It is not admissible under MRE 404(a)(2).
-6-