People of Michigan v. Taylor Storm Breining

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 2, 2022
Plaintiff-Appellee,
v No. 357633
Jackson Circuit Court
TAYLOR STORM BREINING, LC No. 20-003035-FC
Defendant-Appellant.
Before: LETICA, P.J., and MARKEY and O’BRIEN, JJ.
PER CURIAM.
Defendant has been charged with assault with the intent to murder, MCL 750.83, armed
robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b, as a second-felony offender, MCL 769.10. In this interlocutory appeal,
defendant appeals by leave granted1 the trial court’s order denying defendant’s motion to sever the
charges into two separate trials. We affirm.
I. FACTS
Defendant’s charges arise from events on Sunday, September 6, 2020, when defendant and
codefendant, Samuel Boyer, allegedly engaged in what the prosecutor and the trial court have
characterized as a “crime spree” in Jackson County. At the joint preliminary hearing for defendant
and Boyer, evidence was presented related to three specific incidents.
The first incident involved an alleged armed robbery at a camper where Jonathan Whiting
lived. Whiting personally knew both defendant and Boyer, having met them in jail. According to
Whiting, in the early morning hours of September 6th, defendant, Boyer, and three women came
1
This Court initially denied leave to appeal. People v Breining, unpublished order of the Court of
Appeals, entered July 26, 2021 (Docket No. 357633). Thereafter, our Supreme Court remanded
the matter for consideration as on leave granted. People v Breining, 967 NW2d 630 (Mich, 2022).
-1-
to his camper located at his parents’ property and woke him up. Defendant and Boyer initially had
their faces covered with bandanas. When Whiting opened the door, defendant was holding a black
handgun, which he pointed at Whiting’s face. Boyer also had a gun, which Whiting described as
“like an assault gun” or a long rifle. Whiting later saw Boyer had a handgun as well. One of the
women, whom Whiting identified as Boyer’s girlfriend, was carrying what “looked like a sawed[-
]off shotgun.”2
The two other women were unarmed.3 They were April Rudd and Christina Green (or
McConnell). Whiting formerly dated Green, but she had moved out two weeks prior, after living
with Whiting for a month. Green kept asking if her property was there. In particular, Whiting
recalled that Green wanted some clothing. Whiting maintained that he had left Green’s “stuff” at
Rudd’s garage. Rudd knew Green’s items were in Rudd’s garage because Rudd had texted
Whiting about putting them there. That text was on Whiting’s iPhone, which Green took. Whiting
also recalled something being said about fishing tackle that Whiting had not paid for and belonged
to Boyer, a third-party, or someone else.4
While keeping their guns pointed at Whiting, defendant and Boyer entered the camper and
began taking Whiting’s property, including Whiting’s clothing, stereo equipment, tools, laptops,
cell phone, fishing equipment, watches and jewelry, and “pretty much everything.” The women
waited outside the camper, running Whiting’s belongings back and forth from his camper to their
cars. According to Whiting, the group had two smaller, “dark colored cars.” One of the vehicles
was a Ford, but Whiting was not sure about the make of the other vehicle. In addition to taking
Whiting’s property, defendant and Boyer also demanded to know where Whiting kept his money.
If Whiting did not answer their questions right away, they would “jam” their weapons in his “face
even more.” Whiting estimated the incident lasted 1½ to 2 hours and involved threats to shoot
him. After defendant and his cohorts left, Whiting retreated to his parents’ home and took a nap.
He later reported the incident to his father, who called 911.
The second incident took place at Frank’s Shop Rite in the Village of Grass Lake, about a
mile away from Whiting’s location. Frank Bednarski, the shop owner, arrived there between 7:00
and 7:30 a.m. At approximately 9:20 a.m., he was in the process of leaving when he noticed his
truck had several bullet holes in its passenger side. Reviewing the store’s surveillance footage,
Bednarski saw a blue Chevy Cruze enter the store’s parking lot. The vehicle slowed down, a hand
came out of the front, passenger-side window, and, after a brief “flash” from the hand, the car left
2
There is no indication in the record that this woman has been charged.
3
There is no indication in the record that either woman has been charged.
4
A claim of right defense is viable “if a defendant had a good faith belief that the defendant had a
legal right to take the property at issue.” People v Cain, 238 Mich App 95, 119; 605 NW2d 28
(1999). See also People v Holcomb, 395 Mich 326, 333; 235 NW2d 343 (1975); People v Karasek,
63 Mich App 706, 710-714; 234 NW2d 761 (1975). Whiting, however, maintained that the
property taken from the camper belonged to him alone. More specifically, Whiting denied that it
belonged to defendant, Boyer, or any of the women.
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the parking lot. Bednarski called 911 to report the shooting. Unlike Whiting, however, Bernarski
did not know defendant or Boyer.
The third incident on September 6th involved the shooting of Austin Puhr. Like Whiting,
Puhr knew both defendant and Boyer. Puhr met defendant in jail years earlier, and thereafter, sold
him methamphetamine. Puhr was staying at the America’s Best Hotel in Blackman Township
when defendant contacted him on Facebook, inquiring whether Puhr “had anything.” Puhr
informed defendant that he had methamphetamine and they arranged to meet.5 Defendant told
Puhr that he had $100, which was sufficient to purchase about a gram of methamphetamine.
Puhr asked defendant to let him know when he was on his way. Later, a small blue Chevy
car, which Puhr recognized as one that defendant sometimes drove, pulled up in the area of a Bob
Evans restaurant6 and Starbucks. Typically, Puhr would jump into defendant’s car, make the
exchange of drugs for money, and hop out. When Puhr jumped into the front passenger seat this
time, he noticed defendant was driving and Boyer was sitting in the middle of the backseat. Boyer
had never before been present during their prior drug transactions. Defendant then drove away
with Puhr, telling him to give them “the shit.” Puhr reported that defendant and Boyer did not
have the money. Defendant also locked the car’s doors and held onto Puhr’s left arm to keep him
inside the car. From the backseat, Puhr heard a gun being racked. Puhr turned around briefly and
saw Boyer with a black handgun. Puhr managed to open the car door, jump out, and run. He did
not recall much of what happened next, but he remembered running back toward the America’s
Best. Puhr was on the grass near Bob Evans when he saw the car double back toward him.
Although Puhr remembered hearing gunshots, he did not recall feeling them. The next thing Puhr
recalled was lying on the grass and looking up at the sky. Puhr was shot six times. After being
transported to the hospital, Puhr was placed in a medically-induced coma for two weeks and
underwent multiple surgeries to repair the injuries inflicted.
Jordan Cole witnessed the Puhr shooting. Cole offered a similar description of the event.
At approximately 6:00 or 6:30 p.m., Cole saw a darker, “blueish,” smaller-sized sedan swerve into
a neighbor’s yard. A man either jumped away from or out of the car’s passenger side, and Cole
heard gunshots. The man ran away, but the car made a U-turn in the middle of the street, following
the man off the road and on to a field by the Bob Evans. The car looked like it was trying to chase
the man down to run over him. After the man dove out of the way, Cole heard additional gunshots.
Cole called 911. Cole also recounted that the driver of the vehicle appeared to be wearing a face
covering, possibly a black-and-blue “neck gaiter.”
The Jackson County Sheriff’s Office investigated the second incident at Frank’s Shop Rite.
Detective-Sergeant Bryan Huttenlocker testified that law enforcement was aware of multiple
incidents involving guns and a blue Chevy Cruze. The first incident involving Whiting appears to
have been investigated by the Michigan State Police and Blackman Township. The third incident
5
The prosecution provided Puhr with an immunity agreement regarding any potential criminal
charges arising from the possession, transportation, or attempted distribution of controlled
substances to defendant and Boyer.
6
The Bob Evans is approximately thirteen miles from Frank’s Shop Rite.
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involving Puhr was also investigated by Blackman Township police, who contacted Huttenlocker
to report a blue Chevy Cruze was involved. Detective Allen from Blackman Township also stated
that he might be calling Huttenlocker later as they would probably want to conduct a joint
investigation.
At about 12:30 a.m. on September 7th, deputies contacted Huttenlocker to report that they
had some suspect information. In turn, Huttenlocker contacted Detective Allen to coordinate and
head to a location. But further investigation determined that the Chevy Cruze they were looking
for was not there.
Detective Allen came to that location and the Sheriff’s Department had five names.
Because Detective Allen was familiar with Rudd, who lived around the corner, he talked to her
and she provided additional information. In the interim, Huttenlocker had also called in Detective
Freeman to follow up with Whiting. Detective Freeman later provided two addresses, including
Rudd’s.
Thereafter, the police stopped and arrested Boyer, who had left the second address and was
driving the blue Chevy Cruze. The police obtained a search warrant for the home, finding relevant
items, including weapons.
The police also went to the home where defendant had rented a bedroom. Defendant
refused to come out. The police obtained a warrant and the special response team arrested him.
The following day, Detective-Sergeant Huttenlocker interviewed both defendant and
Boyer regarding the incident at Frank’s Shop Rite. Defendant admitted he was in the blue Chevy
Cruze on September 6, 2020, sitting in the passenger seat as he and Boyer drove “around
aimlessly.” Defendant explained that he had just purchased a new handgun. As defendant was
looking at his cell phone, Boyer reached over him and shot multiple rounds from defendant’s gun
out of the passenger-side window.
During Boyer’s interview, Boyer initially denied knowing who shot at the truck at Frank’s
Shop Rite. But, after being informed that defendant had identified Boyer as the shooter, Boyer
confessed that he was driving the blue Chevy and fired through the passenger-side window.
On September 8, 2020, a felony complaint charging defendant with AWIM and felony-
firearm as to the Puhr incident was filed. Over a month later, an amended felony complaint was
filed adding charges of armed robbery and felony-firearm as to the Whiting incident along with
discharge of a firearm from a vehicle, MCL 750.234a(1)(a), as to the incident at Frank’s Shop
Rite.
At the preliminary examination, however, the prosecutor asked the district court to strike
the felony-firearm charge associated with the AWIM charge because there was no evidence that
defendant had a gun during the incident related to Puhr. And despite the prosecutor’s arguments
that defendant could be convicted as an aider and abettor, the district court also declined to bind
over defendant on the charge of discharging a firearm from a vehicle at Frank’s Shop Rite. The
district court reasoned that the evidence showed that defendant was present in the car, but Boyer
was driving and fired the shots. Thus, as to defendant, the district court bound over on three counts:
armed robbery and felony-firearm as to Whiting and AWIM as to Puhr. As to codefendant Boyer,
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the district court bound over on all five charges: armed robbery and felony-firearm as to Whiting,
discharge of a firearm from a vehicle at Frank’s Shop Rite, and AWIM and felony-firearm as to
Puhr.
In the circuit court, defendant moved to sever the charges because they were unrelated.
Defendant asserted that the two incidents were separate, not based on the same conduct or
transaction, and they could not be considered a series of connected acts or a series of acts
constituting parts of a single plan or scheme. Defendant maintained that the charges were unrelated
and that failure to sever them would prejudice him because the jury would “use evidence with
respect to one act as proof somehow that he was a bad person and therefore committed the other
acts.”
In response, the prosecutor argued that the incidents were part of series of connected acts
within the meaning of MCR 6.120(B). The prosecutor characterized the events on September 6,
2020, as a “single prolonged and violent crime spree” perpetrated by defendant and Boyer in the
course of a day, in the same geographic area, using the same vehicle, and using firearms during
each incident. The prosecutor also asserted that jury instructions could be provided to ensure that
the jury did not use the different events for propensity purposes.
Following a hearing, the trial court denied defendant’s motion to sever the charges. The
trial court reasoned:
[T]he Court is going to make . . . a finding as follows. That I am going to
find that these are a series of connected events. We’re dealing with a—with a 12-
hour crime spree that I agree with [the prosecutor], started as an armed robbery and
it ended as an armed robbery.
Not only are the crimes related by sheer proximity and time to one another,
they are all perpetrated by the same two individuals, one directly after the other
throughout the course of a single day—12-hour spree. They all involve the use of
a firearm. In fact [they] were all perpetrated by the use of the same vehicle, a blue
Chevy Cruze.
The . . . State cites People v [Vegh], [unpublished per curiam opinion of the
Court of Appeals, issued January 11, 2018 (Docket No. 333242)], which they attach
to their brief. In that case, the defendant was charged with [c]riminal [s]exual
[c]onduct of multiple different victims throughout the course of several days. The
fact that the separate charges involve different victims at different times was not a
proper justification for the severance of the defendant’s charges.
So in this case, I think that there is a sufficient series of connections between
the all—alleged acts such that they should not be severed.
I don’t think that there’s undue prejudice in this case either, because among
other things, if the State did have to chop up their case and try separate cases,
they . . . would bring in . . . MRE 404[(b)] evidence. [The c]ourt would . . . [in] all
likelihood give limiting instructions. This may be a case where it’s appropriate to
use limiting instructions.
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But sometimes I think the law should find . . . the cases, when they’re related
to a series of connected events as they are in this case, should be tried all as . . . one
piece, not piece-mealed out into separate different episodes.
So I end up, like the case with . . . [People v Jeffrey] Nathaniel . . . [Pope,
unpublished per curiam opinion of the Court of Appeals, issued March 23, 1999
(Docket No. 204645),] and I’m trying to explain to the jury – . . . I can’t explain
why [the Jackson Narcotics Enforcement Team’s] . . . there looking for drugs
because the [j]udge has cut me off at the knees saying you can’t talk about that.
You can only talk about the shooting of the police officers.
Well, later on the Court of Appeals said, “Nu-uh, Judge Grant, you were
wrong about that. You should have let the prosecutor try [th]em both again [sic].”
They were a series of connected events randomly with a short time frame that we’re
dealing – (undecipherable) – in this case, so.
Motion to sever the cases is . . . denied. Motion to sever the defendants
from – into separate trials is denied.
Thereafter, the trial court entered an order denying defendant’s motion to sever for the reasons
stated on the record.7 This appeal followed.
II. ANALYSIS
On appeal, defendant argues that the trial court erred by denying his motion to sever the
charges and to hold two trials: one related to Whiting and the second related to Puhr. As in the
trial court, defendant again maintains that the charges are not related within the meaning of
MCR 6.120. According to defendant, the evidence regarding the distinct incidents would not be
admissible as other-acts evidence in separate trials, and joinder of the charges will unfairly
prejudice defendant by allowing the prosecutor to use the separate incidents as propensity
evidence. Additionally, defendant contends for the first time on appeal that joinder violates due
process and that joinder will infringe on his decision whether to testify on one charge while
remaining silent on other counts. We disagree.
A. STANDARD OF REVIEW
“For an issue to be preserved for appellate review, it must be raised, addressed, and decided
by the lower court.” People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011) (quotation
marks and citation omitted). In this case, defendant moved to sever the charges related to Whiting
7
In the circuit court, codefendant Boyer also moved to sever the charges, asserting that his five
charges should be tried in three separate trials relating to Whiting, Frank’s Shop Rite, and Puhr.
The trial court also denied Boyer’s motion to sever. Boyer filed an interlocutory application for
leave to appeal, which this Court denied “for failure to persuade [it] of the need for immediate
appellate review.” People v Boyer, unpublished order of the Court of Appeals, entered May 17,
2021 (Docket No. 356808). Boyer did not appeal to the Supreme Court.
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and Puhr into two separate trials on the basis that the charges were not related within the meaning
of MCR 6.120. This issue is, therefore, preserved for review. See Danto, 294 Mich App at 605.
However, for the first time on appeal, defendant also argues that failure to sever the charges will
violate his constitutional rights to due process and to testify or remain silent. “[A]n objection on
one ground is insufficient to preserve an appellate argument based on a different ground.” Id.
Defendant’s motion to sever did not raise these constitutional issues, and these constitutional issues
are, therefore, not preserved for our review. See id.
Whether joinder is appropriate is a mixed question of fact and law. To
determine whether joinder is permissible, a trial court must first find the relevant
facts and then must decide whether those facts constitute related offenses for which
joinder is appropriate. This Court reviews a trial court’s factual findings for clear
error and its interpretation of a court rule, which is a question of law, de novo.
[People v Gaines, 306 Mich App 289, 304; 856 NW2d 222 (2014) (quotation marks
and citation omitted).]
Whether charges are related is a question of law that this Court reviews de novo. People v Girard,
269 Mich App 15, 17; 709 NW2d 229 (2005). “However, the ultimate decision on permissive
joinder of related charges lies firmly within the discretion of trial courts.” Gaines, 306 Mich App
at 304 (quotation marks and citation omitted). Generally, this Court reviews constitutional claims
de novo. People v Solloway, 316 Mich App 174, 201; 891 NW2d 255 (2016). However,
defendant’s constitutional arguments regarding due process and his right to testify or remain silent
are unpreserved, and accordingly, this Court’s review is limited to plain error affecting defendant’s
substantial rights. Id. at 201-202.
B. JOINDER OF RELATED OFFENSES UNDER MCR 6.120
Joinder and severance of charges is governed by MCR 6.120, which, in relevant part, states:
(B) Postcharging Permissive Joinder or Severance. On its own initiative,
the motion of a party, or the stipulation of all parties, except as provided in subrule
(C), the court may join offenses charged in two or more informations or indictments
against a single defendant, or sever offenses charged in a single information or
indictment against a single defendant, when appropriate to promote fairness to the
parties and a fair determination of the defendant’s guilt or innocence of each
offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this
rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on
the parties’ resources, the potential for confusion or prejudice stemming from either
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the number of charges or the complexity or nature of the evidence, the potential for
harassment, the convenience of witnesses, and the parties’ readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an
opportunity to be heard.
(C) Right of Severance; Unrelated Offenses. On the defendant’s motion,
the court must sever for separate trials offenses that are not related as defined in
subrule (B)(1).
As explained by the Michigan Supreme Court, “[w]hen the joined counts are logically related, and
there is a large area of overlapping proof, joinder is appropriate” under MCR 6.120. People v
Williams, 483 Mich 226, 237; 769 NW2d 605 (2009) (quotation marks and citation omitted).
However, the court rule “does not permit the joinder of those offenses that are only of the same or
similar character.” Id. at 246 (quotation marks omitted). Whether evidence of the separate charges
would be admissible in separate trials is “an important consideration” because joinder of charges
“cannot prejudice the defendant more than he would have been by the admissibility of the other
evidence in a separate trial.” Id. at 237 (quotation marks and citation omitted).
In this case, the trial court did not err by concluding that offenses—involving acts of
robbery or attempted robbery by the same defendants, on the same day, in close geographic
proximity, using the same vehicle as well as handguns—amounted to a “crime spree” of offenses
related within the meaning of MCR 6.120(B) as a series of connected acts or a series of acts
constituting a single plan. Because the offenses are related, defendant was not entitled to severance
under MCR 6.120(C). And, on the facts of this case, the trial court did not abuse its discretion by
denying defendant’s motion to sever under MCR 6.120(B).
As detailed by the trial court, the crimes at issue took place in a 12-hour period in relatively
close geography proximity in Jackson County. Both defendant and Boyer participated in the
crimes, using weapons, including defendant’s handgun. During the robbery in the morning,
defendant pointed a handgun at Whiting while Boyer held a longer rifle, and they demanded
property from Whiting. Whiting described the vehicle used by defendant and Boyer as a smaller,
dark sedan. Whiting also noted that defendant and Boyer arrived at his property with their faces
covered. Whiting personally knew both defendant and Boyer: he had met them both in jail.
After robbing Whiting and before the incident with Puhr, according to defendant’s
statement to police, defendant and Boyer drove around “aimlessly” in a blue Chevy Cruze, and
Boyer used defendant’s handgun to shoot at a truck in a parking lot.
Later in the day, defendant and Boyer attempted to commit a second armed robbery. They
again targeted a personal acquaintance—someone who, like Whiting, had a criminal history and
had met defendant while in jail. Again, driving a dark colored sedan—more specifically identified
by Puhr as a blue Chevy Cruze—defendant and Boyer held Puhr at gunpoint and demanded
property from him. Defendant has attempted to characterize the events with Puhr as simply a
“drug deal gone bad” as if that would somehow mean that it did not involve an attempted robbery,
but Puhr’s testimony supports that defendant and Boyer had no intention of buying drugs. They
showed up with no money to pay Puhr, and instead, Boyer pointed a handgun at Puhr while
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defendant demanded that Puhr give them “the shit.” Unlike Whiting, Puhr refused to comply with
defendant’s and Boyer’s demands, and he was shot and nearly killed as a result. An eyewitness to
the Puhr incident also noted that—as during the incident in the morning—defendant was wearing
a face covering, possibly a neck gaiter.
On the whole, the sequence of events on September 6, 2020, evinces that defendant and
Boyer undertook two robberies in Jackson County in the course of approximately 12 hours, and in
doing so, they targeted victims known to them, used a handgun, drove a dark sedan, and wore face
coverings. Defendant is certainly correct that the events are not identical. Nevertheless, the
temporal proximity, the geographic proximity, the participation of both defendant and Boyer, the
similarities between the methods employed (e.g., the use of handguns, a dark blue sedan, and face
coverings), and the choice of personal acquaintances as victims support the trial court’s conclusion
that the charges involving Whiting and Puhr are related for purposes of MCR 6.120(B). Cf. People
v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003) (“Severance was not mandatory in
the present case because the shootings occurred within a couple of hours of each other in the same
neighborhood, with the same weapon, and were part of a set of events interspersed with target
shooting at various outdoor objects.”). Severance was not required under MCR 6.120(C).
Moreover, contrary to defendant’s claims that evidence relating to the different events
would not be admissible at separate trials, the trial court did not err when it concluded that the
evidence would be admissible at separate trials under MRE 404(b). Under MRE 404(b), among
other proper purposes, other-acts evidence may be offered to prove intent. “When other acts are
offered to show intent, logical relevance dictates only that the charged crime and the proffered
other acts are of the same general category.” People v VanderVliet, 444 Mich 52, 79-80; 508
NW2d 114 (1993), amended 445 Mich 1205 (1994) (quotation marks and citation omitted). In
this case, for example, defendant claims on appeal that he did not intend to rob Whiting but was
instead innocently retrieving property that belonged to others. However, the fact that less than 12
hours later defendant—again accompanied by Boyer, driving a dark sedan, and with his face
covered—attempted to rob another acquaintance at gunpoint, again involving a handgun, makes it
objectively less probable that defendant acted with innocent intent at Whiting’s camper that same
morning. See id.Conversely, with regard to the admission of evidence relating to Whiting at a trial relating
to Puhr, defendant also asserts on appeal that he has a potential claim of self-defense with respect
to the AWIM charges related to the incident involving Puhr. Puhr, in contrast, described an
attempted armed robbery, in which he was held at gunpoint and shot when he attempted to escape.
The fact that, earlier that same day, defendant also participated in an armed robbery of an
acquaintance—similarly acting with Boyer, while driving a dark sedan, and with his face
covered—and while armed with a handgun, tends to make it more probable that defendant and
Boyer were attempting to rob Puhr at gunpoint that evening, in which case defendant would be
ineligible to claim self-defense with respect to the events relating to Puhr. See People v Minor,
213 Mich App 682, 686 n 1; 541 NW2d 576 (1995) (“A robber or other wrongdoer engaged in
felonious conduct has no privilege of self-defense . . . .”). See also MCL 780.972(1) (“An
individual who has not or is not engaged in the commission of a crime at the time he or she uses
deadly force may use deadly force against another individual . . . .”).
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Although the evidence of the separate offenses is prejudicial, it is not unfairly so, and it
does not appear that the danger of unfair prejudice substantially outweighed the probative value of
the evidence. See MRE 403; see also People v McGhee, 268 Mich App 600, 614; 709 NW2d 595
(2005). Further, the trial court expressed a willingness to provide the jury with a limiting
instruction regarding the use of the evidence in question. See McGhee, 268 Mich App at 614. In
short, the trial court did not abuse its discretion by concluding that the evidence would be
admissible at separate trials as other-acts evidence, a fact which strongly supports joinder.8 See
Williams, 483 Mich at 237.
That the evidence would be admissible as other-acts evidence at separate trials also
undermines defendant’s claim of prejudice because joinder of charges “cannot prejudice the
defendant more than he would have been by the admissibility of the other evidence in a separate
trial.” Id. (quotation marks and citation omitted). Further, the facts regarding the day in question
are not particularly complex, meaning that there is little risk of jury confusion. See Gaines, 306
Mich App at 305. And, as noted, the trial court expressed a willingness to provide a jury
instruction, which would guard against potential prejudice relating to joinder. See Williams, 483
Mich at 244.
In addition, the events on September 6, 2020, resulted in interconnected police
investigations. Defendant was arrested at his house the following day by a special response team,
and it appears that he was interviewed once. In other words, from the available evidence offered
thus far, there would be considerable overlap in the police evidence relating to his arrest, the
collection of evidence, and his interview with police. Likewise, to the extent that civilian witnesses
would need to be called as other-acts witnesses at separate trials, judicial economy weigh in favor
of a single trial. In other words, these overlapping proofs and concerns for the convenience of
witnesses supports joinder. See MCR 6.120(B)(2); Williams, 483 Mich at 237. Overall, the trial
court did not err by concluding that the offenses were related within the meaning of MCR 6.120,
and on the facts of this case, the trial court did not abuse its discretion by denying defendant’s
motion to sever the charges. See Gaines, 306 Mich App at 304.
C. CONSTITUTIONAL ISSUES
On appeal, defendant also argues for the first time that the joinder in this case violated, not
only MCR 6.120, but also violated defendant’s constitutional right to due process and infringed
upon his decision whether to testify or remain silent as to each charge. These unpreserved
arguments lack merit.
With regard to due process, “ ‘[i]mproper joinder does not, in itself, violate the
Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it
8
Because a handgun was involved in each offense, evidence related to possession of the gun during
each incident that day would also likely be admissible in separate trials. See People v Hall, 433
Mich 573, 580-581; 447 NW2d 580 (1989) (“Evidence of a defendant’s possession of a weapon
of the kind used in the offense with which he is charged is routinely determined by courts to be
direct, relevant evidence of his commission of that offense.”); People v Parker, 76 Mich App 432,
450; 257 NW2d 109 (1977) (recognizing that the source of a weapon was relevant).
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results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.’ ”
Williams, 483 Mich at 245, quoting United States v Lane, 474 US 438, 446 n 8; 106 S Ct 725; 88
L Ed 2d 814 (1986). As discussed, joinder was not improper on the facts of this case, and joinder
will not result in any great danger of unfair prejudice to defendant. See Williams, 483 Mich at 237.
Defendant’s due-process argument lacks merit.
Regarding the effect of joinder on defendant’s decision whether to testify, defendant also
has not shown error on this basis. Defendant maintains on appeal that he intends to raise a claim
of self-defense with regard to the incident involving Puhr, and he contends that he will have to
testify regarding this defense because only he can testify about his state of mind. In contrast,
defendant asserts that he will defend against the charges involving Whiting on the basis that the
property from the camper did not belong to Whiting. According to defendant, there are others who
can testify with regard to the ownership of the property in question, meaning that defendant’s
testimony “would not be necessary to raise his defense” related to Whiting. According to
defendant, because he wants to testify about one charge but may wish to remain silent in response
to the other charges, severance is required. In support of this argument, defendant cites United
States v Armstrong, 621 F2d 951, 954 (CA 9, 1980), and Cross v United States, 335 F2d 987, 991;
118 US App DC 324 (1964).9
In Cross, 335 F2d at 989, the Court recognized that prejudice may arise in the context of
joinder “when an accused wishes to testify on one but not the other of two joined offenses which
are clearly distinct in time, place and evidence.” The Court reasoned:
[A defendant’s] decision whether to testify will reflect a balancing of several factors
with respect to each count: the evidence against him, the availability of defense
evidence other than his testimony, the plausibility and substantiality of his
testimony, the possible effects of demeanor, impeachment, and cross-examination.
But if the two charges are joined for trial, it is not possible for him to weigh these
factors separately as to each count. If he testifies on one count, he runs the risk that
any adverse effects will influence the jury’s consideration of the other count. Thus
he bears the risk on both counts, although he may benefit on only one. Moreover,
a defendant’s silence on one count would be damaging in the face of his express
denial of the other. Thus he may be coerced into testifying on the count upon which
he wished to remain silent. It is not necessary to decide whether this invades his
constitutional right to remain silent, since we think it constitutes prejudice within
the meaning of [the federal rule permitting severance]. [Id. (footnotes omitted.)]
Factually, Cross involved a defendant with a strong defense to one robbery claim—an assertion
that “he was a victim and not a cohort of the armed robbers who entered the tourist home behind
him.” Id. at 990. The defendant was ultimately acquitted of this charge. Id. In contrast, his
testimony regarding a second robbery—that he had been drinking heavily and did not know his
whereabouts at the time of the second robbery—“was plainly evasive and unconvincing.” Id. On
these facts, the Court determined that the defendant had been prejudiced by joinder because the
9
Decisions of lower federal courts are not binding on this Court, but they may be considered
persuasive. In re Estate of Vansach, 324 Mich App 371, 388 n 8; 922 NW2d 136 (2018).
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defendant “had ample reason not to testify [related to the second robbery] and would not have
done so if that count had been tried separately.” Id. Joinder thus placed the defendant “under
duress to offer dubious testimony on that count,” and it “confounded” the defendant in making his
defense. Id. at 991.
Although Cross recognized that joinder can prejudice a defendant who wishes to testify on
one count while remaining silent on another charge, Cross did not establish a bright-line rule that
any cursory assertion of a desire to testify on one count and to remain silent on another count is
enough to compel severance of related charges. To the contrary, subsequent decisions have refined
the holding in Cross, making clear that Cross should not be read too broadly. See Baker v United
States, 401 F2d 958, 976; 131 US App DC 7 (1968). In particular, in Baker, the United States
Court of Appeals for the District of Columbia Circuit clarified its prior ruling in Cross as follows:
The essence of our ruling in Cross was that, because of the unfavorable
appearance of testifying on one charge while remaining silent on another, and the
consequent pressure to testify as to all or none, the defendant may be confronted
with a dilemma: whether, by remaining silent, to lose the benefit of vital testimony
on one count, rather than risk the prejudice (as to either or both counts) that would
result from testifying on the other. Obviously no such dilemma exists where the
balance of risk and advantage in respect of testifying is substantially the same as to
each count. Thus unless the ‘election’ referred to by appellant is to be regarded as
conclusive—and we think it should not be—no need for a severance exists until the
defendant makes a convincing showing that he has both important testimony to give
concerning one count and strong need to refrain from testifying on the other. In
making such a showing, it is essential that the defendant present enough
information—regarding the nature of the testimony he wishes to give on one count
and his reasons for not wishing to testify on the other—to satisfy the court that the
claim of prejudice is genuine and to enable it intelligently to weigh the
considerations of ‘economy and expedition in judicial administration’ against the
defendant’s interest in having a free choice with respect to testifying. [Id. at 976-
977 (emphasis added and footnotes omitted).]
In Armstrong, 621 F2d at 954, the second decision cited by defendant on appeal, the Ninth Circuit
followed the approach in Baker, holding that severance is not required unless the defendant makes
a convincing showing that he has both important testimony to give concerning one count and a
strong need to refrain from testifying on the other.
Indeed, since Baker, other federal circuit courts have similarly followed this approach,
holding that “a mere unexplicated assertion” of the desire to testify on one count, but not a second
count, is not enough to require severance. United States v Werner, 620 F2d 922, 930 (CA 2, 1980).
Instead, under the widely-adopted Baker test, severance is only required “when a defendant
demonstrates that he has both (1) important testimony to give concerning some counts and (2) a
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strong need to refrain from testifying with regard to other counts.”10 United States v Ely, 910 F2d
455, 457 (CA 7, 1990). The defendant must make “a convincing showing” in this regard. United
States v Monteiro, 871 F3d 99, 108 (CA 1, 2017) (quotation marks and citation omitted). Such a
showing requires a defendant to make a proffer of what testimony he intends to offer regarding
one charge and his reasons for not testifying regarding others; this showing cannot be made on the
basis of speculation. See id. Moreover, under Baker, when addressing the possibility of prejudice
and a defendant’s reasons not to testify on one count, it must also be considered whether, if the
trials were severed, the defendant nevertheless “would have been confronted with substantially the
same evidence, because evidence of each of the joined offenses would be admissible in a separate
trial for the other.” United States v Weber, 437 F2d 327, 332 (CA 3, 1970) (quotation marks and
citation omitted).
In this case, defendant failed to even raise this Baker issue in the trial court, and he certainly
failed to make a convincing showing that he has (1) important testimony to give concerning one
count and (2) a strong need to refrain from testifying with regard to other counts. He suggests on
appeal that he may have a self-defense claim relating to Puhr, but he has made no proffer of his
proposed testimony, either in the trial court or on appeal. On the available record, it would be
nothing but speculation to suppose that he has important self-defense testimony to offer. Indeed,
from the available record, and without a proffer from defendant, it is baffling how defendant could
plausibly claim self-defense with regard to the incident involving Puhr. At the same time,
defendant also has not adequately explained his reasons for not testifying regarding the incident
involving Whiting. He notes on appeal that he intends to defend against the charges relating to
Whiting by asserting that the property taken did not belong to Whiting, and he contends that his
testimony may not be necessary to support this defense. But he fails to articulate a “strong need”
or really any need to refrain from testifying in connection with the charges relating to Whiting.11
Moreover, given that the evidence of the respective charges would be admissible at separate trials
as other-acts evidence, defendant would be confronted with much of the same evidence, even if
the charges were severed, which also undermines defendant’s speculative claims of prejudice. See
10
Numerous federal circuit courts to have considered the issue has adopted an approach consistent
with Baker. See United States v Monteiro, 871 F3d 99, 108 (CA 1, 2017); Werner, 620 F2d at 930;
United States v Reicherter, 647 F2d 397, 401 (CA 3, 1981); United States v Goldman, 750 F2d
1221, 1225 (CA 4, 1984); United States v Forrest, 623 F2d 1107, 1115 (CA 5, 1980); United States
v Ely, 910 F2d 455, 457 (CA 7, 1990); United States v Jardan, 552 F2d 216, 220 (CA 8, 1977);
Armstrong, 621 F2d at 954; United States v Cox, 934 F2d 1114, 1120 (CA 10, 1991); United States
v Benz, 740 F2d 903, 911 (CA 11, 1984). Numerous state courts also follow a similar approach.
See 32 ALR 6th 38 (compiling cases).
11
In passing, defendant generally cites caselaw dealing with “mutually antagonistic” or
“irreconcilable” defenses, which typically relates to joinder of codefendants—rather than joinder
of charges for a single defendant. See, e.g., Zafiro v United States, 506 US 534, 538; 113 S Ct
933; 122 L Ed 2d 317 (1993); People v Hana, 447 Mich 325, 347; 524 NW2d 682 (1994), amended
447 Mich 1203 (1994). Defendant fails to explain the relevance of these cases to the facts at hand,
and in any event, there is nothing mutually antagonistic or irreconcilable in defendant’s
contentions that he acted in self-defense during the incident with Puhr and that he cannot be guilty
of robbing Whiting because the property did not belong to Whiting.
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Weber, 437 F2d at 332. Ultimately, having failed to provide the trial court—or this Court—with
a proffer of his self-defense testimony and having otherwise failed to provide adequate information
to support his claim of prejudice, he has failed to make the convincing showing required to warrant
severance under Baker, 401 F2d at 976-977. Defendant is not entitled to relief on this basis.
Affirmed.
/s/ Jane E. Markey
/s/ Colleen A. O’Brien
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