Opinion
163258 163259 347207 347208
07-29-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiffs-Appellees, v. JEREMIAH JAMES BOSHELL, Defendant-Appellant.
Joshua Van Laan (P75194) Assistant Prosecuting Attorney Macomb County Prosecutor's Office Katherine Marcuz (P76625) Assistant Appellate Defender Michael Waldo (P72342) Assistant Appellate Defender State Appellate Defender Office Joshua R. Van Laan (P75194) Assistant Prosecuting Attorney
Macomb Circuit Case No. 16-0658-FC Case No. 16-2787-FC
Joshua Van Laan (P75194) Assistant Prosecuting Attorney Macomb County Prosecutor's Office
Katherine Marcuz (P76625) Assistant Appellate Defender
Michael Waldo (P72342) Assistant Appellate Defender State Appellate Defender Office
Joshua R. Van Laan (P75194) Assistant Prosecuting Attorney
PEOPLE'S ANSWER TO DEFENDANT'S APPLICATION FOR LEAVE TO APPEAL
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................... i
TABLE OF AUTHORITIES ................................................................................ ii
COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................. iv
COUNTER-STATEMENT OF MATERIAL FACTS & PROCEEDINGS ................... 1
QUESTION I ............................................................................................. 3
THE TRIAL COURT DID NOT ERR BY DENYING DEFENDANT'S MOTION TO DISMISS THE LAPEER COUNTY CASE FOR IMPROPER VENUE, BUT EVEN IF VENUE WAS IMPROPER, THE COURT OF APPEALS PROPERLY CONCLUDED THAT ANY SUCH ERROR WAS HARMLESS. . ....................................... 3
QUESTION II .......................................................................................... 16
THE TRIAL COURT DID NOT ERR BY ADMITTING IRRELEVANT AND OVERLY PREJUDICIAL EVIDENCE AT TRIAL. ..16
QUESTION III ......................................................................................... 25
THE TRIAL COURT DID NOT ERR BY DENYING DEFENDANT'S REQUEST FOR A MISTRIAL. . ..................................... 25
QUESTION IV ......................................................................................... 29
THE TRIAL COURT DID NOT ERR BY PROPERLY QUESTIONING DEFENDANT'S EXPERT AT TRIAL ...... 29
RELIEF REQUESTED .................................................................................... 30
TABLE OF AUTHORITIES
Michigan Supreme Court Cases People v Beck, ___Mich ___; ___ N.W.2d ___ (2022) (Docket No. 160668) .............. 12
People v Boshell, ___Mich ___; ___ 975 N.W.2d 918 (2022) ................................................. 3
People v Buie, 491 Mich. 294; 817 N.W.2d 33 (2012) ...................................................... 4
People v Eddington, 387 Mich. 551; 198 N.W.2d 297 (1972) ....................................... 20
People v Houthoofd, 487 Mich. 568; 790 N.W.2d 315 (2010) ................................ passim
People v Lukity, 460 Mich. 484; 596 N.W.2d 607 (1999) ............................................... 10
People v McBurrows, 504 Mich. 308; 934 N.W.2d 748 (2019) ............................... 4, 6, 8
People v Mills, 450 Mich. 61; 537 N.W.2d 909 (1995) ........................................ 18, 20, 21
People v Shahideh, 482 Mich. 1156; 758 N.W.2d 536 (2008) ...................................... 28
People v Stevens, 498 Mich. 162; 869 N.W.2d 233 (2015) ............................................ 29
Michigan Court of Appeals Cases
People v Bass, 317 Mich.App. 241; 893 N.W.2d 140 (2016) ...................................... 7, 9
People v Bosca, 310 Mich.App. 1; 871 N.W.2d 307 (2015) ........................................... 25
People v Boshell, 337 Mich.App. 322; 975 N.W.2d 72 (2021) ........................................ 2
People v Brown, 326 Mich.App. 185; 926 N.W.2d 879 (2019) ..................................... 21
People v Cameron, 291 Mich.App. 599; 806 N.W.2d 371 (2011) ................................ 18
People v Dickinson, 321 Mich.App. 1; 909 N.W.2d 24 (2017) ...................................... 25
People v Douglas, 496 Mich. 557; 852 N.W.2d 587 (2014) ..................................... 17, 24
People v Everett, 318 Mich.App. 511; 899 N.W.2d 94 (2017) ....................................... 17
People v Gayheart, 285 Mich.App. 202; 776 N.W.2d 330 (2009) .................................. 5
People v Grayer, 235 Mich.App. 737; 599 N.W.2d 527 (1999) ...................................... 9
People v Head, 323 Mich.App. 526; 917 N.W.2d 752 (2018) ....................................... 21
People v Horn, 279 Mich.App. 31; 755 N.W.2d 212 (2008) ........................................... 26
People v Jackson, 292 Mich.App. 583; 808 N.W.2d 541 (2011) .................................... 9
People v Lane, 308 Mich.App. 38; 862 N.W.2d 446 (2014) ........................................... 25
People v Lewis, 302 Mich.App. 338; 839 N.W.2d 37 (2013) ........................................... 4
People v Meredith (On Remand), 209 Mich.App. 403; 531 N.W.2d 749 (1995) ......... 8
People v Mette, 243 Mich.App. 318; 621 N.W.2d 713 (2000) ....................................... 21
People v Miller, 326 Mich.App. 719; 929 N.W.2d 821 (2019) ....................................... 28
People v Mitchell, 301 Mich.App. 282; 835 N.W.2d 615 (2013) ..................................... 7
People v Schaw, 288 Mich.App. 231; 791 N.W.2d 743 (2010) ..................................... 25
People v Solloway, 316 Mich.App. 174; 891 N.W.2d 255 (2016) ................................ 16
People v Webbs, 263 Mich.App. 531; 689 N.W.2d 163 (2004) ....................................... 6
Michigan Compiled Laws
MCL 257.602a(2) ....................................................................................................................... 1
MCL 28.424 ................................................................................................................................. 7
MCL 600.1645 .......................................................................................................................... 16
MCL 750.224f ............................................................................................................................. 1
MCL 750.226(1) ......................................................................................................................... 1
MCL 750.227b(1) ................................................................................................................... 1, 2
MCL 750.316(1)(a) .................................................................................................................... 1
MCL 750.83 ............................................................................................................................. 1, 2
MCL 750.90a .................................................................................................................... 1, 2, 19
MCL 762.8 ........................................................................................................................... 4, 8, 9
MCL 762.9 ................................................................................................................................... 4
MCL 769.26 ............................................................................................................. 10, 11, 17, 24
Michigan Court Rules
MCR 7.212(C)(6) ........................................................................................................................ 3
MCR 7.305(A)(1)(d) .................................................................................................................... 3
Michigan Rules of Evidence
MRE 401 .................................................................................................................................... 17
MRE 402 .................................................................................................................................... 17
MRE 403 .................................................................................................................. 17, 18, 20, 21
MRE 801(d)(2) ........................................................................................................................... 22
COUNTER-STATEMENT OF QUESTIONS PRESENTED
QUESTION I
DID THE TRIAL COURT ERR BY DENYING DEFENDANT'S MOTION TO DISMISS THE LAPEER COUNTY CASE FOR IMPROPER VENUE, AND IF SO, DID THE COURT OF APPEALS ERR BY CONCLUDING THAT SUCH AN ERROR WAS HARMLESS?
Defendant's Answer: "Yes" & "Yes"
People's Answer: "No" & "No"
Trial Court's Answer: "No" & N/A
Court of Appeals' Answer: "No" & "No"
QUESTION II
DID THE TRIAL COURT ERR BY ADMITTING UNFAIRLY PREJUDICIAL EVIDENCE AT DEFENDANT'S TRIAL?
Defendant's Answer: "Yes"
People's Answer: "No"
Trial Court's Answer: "No"
Court of Appeals' Answer: "No"
QUESTION III
DID THE TRIAL COURT ERR BY DENYING DEFENDANT'S REQUEST FOR A MISTRIAL?
Defendant's Answer: "Yes"
People's Answer: "No"
Trial Court's Answer: "No"
Court of Appeals' Answer: "No"
QUESTION IV
DID THE TRIAL COURT ERR BY QUESTIONING DEFENDANT'S EXPERT IN AN UNFAIR MANNER AT TRIAL?
Defendant's Answer: "Yes"
People's Answer: "No"
Trial Court's Answer: "No"
Court of Appeals' Answer: "No"
COUNTER-STATEMENT OF MATERIAL FACTS & PROCEEDINGS
Defendant was charged with 14 felony offenses in two separate cases. In this Court's Docket No. 163258 (COA Docket No. 347207) (CC Case No. 17-2787-FC) (hereinafter referred to as the "Lapeer County case"), Defendant was charged with three counts of Assault With Intent to Murder ("AWIM"), contrary to MCL 750.83, one count of Third Degree Fleeing & Eluding a Police Officer, contrary to MCL 257.602a(2), one count of Carrying a Dangerous Weapon with Unlawful Intent, contrary to MCL 750.226(1), one count of Possession of a Weapon by a Felon, contrary to MCL 750.224f, and four counts of Felony Firearm-Second Offense, contrary to MCL 750.227b(1). In this Court's Docket No. 163259 (COA Docket No. 347208) (CC Case No. 17-0658-FC) (hereinafter referred to as the "Macomb County case"), Defendant was charged with First Degree Premeditated Murder, contrary to MCL 750.316(1)(a), Assault on a Pregnant Individual Causing Miscarriage or Death, contrary to MCL 750.90a, and two counts of Felony Firearm-Second Offense, contrary to MCL 750.227b(1).
Eventually, both of Defendant's cases were consolidated in the Macomb County Circuit Court for a single trial before a single jury. On the morning of that trial though, Defendant pled guilty to two of the charges in the Lapeer County case-one count of Felon in Possession of a Firearm, contrary to MCL 750.224f, and one count of Felony Firearm-Second Offense, contrary to MCL 750.227b(1). (See Tr. 9/25/18 at 6-35). Thereafter, following a 19-day jury trial, Defendant was convicted of eight more charges, including First Degree Premeditated Murder, contrary to MCL 750.316, one count of AWIM, contrary to MCL 750.83, Assault on a Pregnant Individual to Intentionally Cause a Miscarriage, contrary to MCL 750.90a, Carrying a Firearm With Unlawful Intent, contrary to MCL 750.226, Third Degree Fleeing & Eluding a Police Officer, contrary to MCL 257.602(a)(3), and three counts of Felony Firearm- Second Offense, contrary to MCL 750.227b(1). (See Tr. 2/8/19 at 65).
The jury acquitted Defendant of four counts from the Lapeer County case-the two other counts of AWIM and the two counts of Felony Firearm associated with those AWIM charges. (See Tr. 11/1/18 at 27-28).
On December 20, 2018, the trial court sentenced Defendant to life in prison without the possibility of parole for his First Degree Premeditated Murder conviction, to life in prison with the possibility of parole for his AWIM conviction, to 31¼ years (375 months) to 50 years (600 months) in prison for his Assault on a Pregnant Individual conviction, to 30 months (2½ years) to 60 months (5 years) in prison for his Carrying a Firearm With Unlawful Intent conviction, to 30 months (2½ years) to 60 months (5 years) in prison for his Third Degree Fleeing & Eluding a Police Officer conviction, to 30 months (2½ years) to 60 months (5 years) in prison for his Felon in Possession of a Firearm conviction, and to 60 months (5 years) in prison for each of his Felony Firearm-Second Offense convictions. (See Tr. 4/4/19 at 12-13). Defendant subsequently appealed his convictions by right to the Michigan Court of Appeals, but his requests for relief on direct appeal were ultimately denied by the lower appellate court on May 13, 2021. Of course, Defendant has since filed the instant Application for Leave to Appeal in this Court, and this Court has since ordered the prosecution to respond to that Application for Leave to Appeal by July 29, 2022.
See People v Boshell, 337 Mich.App. 322, 326; 975 N.W.2d 72 (2021).
See People v Boshell, Mich. ___; 975 N.W.2d 918 (2022).
Aside from the preceding factual background, the People also accept the majority of the material facts provided by Defendant's counsel in the Statement of Facts section of his Application for Leave to Appeal, at least to the extent that those facts have been fairly stated without argument or bias, as required by MCR 7.305(A)(1)(d) and MCR 7.212(C)(6). All other relevant and material factual statements, if any, will be provided-with a proper citation to the record-in the Argument portion of this Answer.
QUESTION I
THE TRIAL COURT DID NOT ERR BY DENYING DEFENDANT'S MOTION TO DISMISS THE LAPEER COUNTY CASE FOR IMPROPER VENUE, BUT EVEN IF VENUE WAS IMPROPER, THE COURT OF APPEALS PROPERLY CONCLUDED THAT ANY SUCH ERROR WAS HARMLESS.
This Court has directed the Macomb County Prosecutor's Office to respond to Defendant's Application for Leave to Appeal, and in doing so, the Court has specifically ordered the People to address "the harmless error analysis employed by the Court of Appeals with respect to the venue issue." In particular, the Court has expressly instructed the prosecution to address whether "the Court of Appeals erred by failing to consider the effect of [the assumed] venue error on [the Macomb County case]." In other words, this Court has called upon the People to address whether the improper trial of the Lapeer County case with the Macomb County case undermined the reliability of the verdict in the Macomb County case. Of course, for the reasons set forth herein, the record makes it evident that any alleged venue error in the Lapeer County case could not possibly have had any impact at all on the verdict in the Macomb County case.
See id.
See id.
STANDARD OF REVIEW
This Court reviews de novo a trial court's interpretation of the venue statutes, as well the ultimate determination regarding the existence of venue in a criminal prosecution. See People v McBurrows, 504 Mich. 308, 312-313; 934 N.W.2d 748 (2019); People v Houthoofd, 487 Mich. 568, 579; 790 N.W.2d 315 (2010). However, the Court reviews a trial court's ruling on a motion to dismiss for lack of venue for an abuse of discretion. See People v Lewis, 302 Mich.App. 338, 341; 839 N.W.2d 37 (2013). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes." See People v Buie, 491 Mich. 294, 320; 817 N.W.2d 33 (2012).
ARGUMENT
As previously noted, prior to Defendant's trial, his counsel filed a motion to dismiss the 10 felony charges in the Lapeer County case on the alleged ground that Macomb County was not a proper venue for those crimes. In response, the prosecution argued that venue was proper in Macomb County pursuant to both MCL 762.8 and MCL 762.9. Following arguments on Defendant's motion, the trial judge held that Macomb County was a proper venue for both cases, and as such, it denied Defendant's request for dismissal. (See Tr. 8/30/18 at 10-35). Following that ruling, Defendant opted not to pursue an interlocutory appeal, but on his direct appeal, he challenged the trial court's venue ruling, and the Court of Appeals later concluded that, although it agreed that Macomb County was not a proper venue for the Lapeer County case, it also held that any such venue error was harmless. However, when analyzing whether or not the purported venue error was harmless, the Court of Appeals only considered the impact of the error on the Lapeer County case, without any discussion about whether or not the venue error had any harmful impact on the Macomb County case. In any event, Defendant's Application for Leave to Appeal should be denied by this Court on this issue for three reasons: (1) venue for the Lapeer County case was proper in either Lapeer County or Macomb County; (2) even if venue was not proper in Macomb County, such a venue error was undoubtedly harmless; and (3) Michigan law precludes the reversal of a defendant's convictions based on a venue error.
A. Venue was proper for Defendant's Lapeer County case in either Lapeer County or Macomb County.
Despite the contrary finding by the Court of Appeals, the trial court did not err when it denied Defendant's motion to dismiss the Lapeer County case for lack of venue, as venue was proper for those charges in either Lapeer County or Macomb County. In Michigan, venue is not "an essential element of a criminal offense," but it is "a part of every criminal prosecution," and it does present a question of fact for the jury to determine. See People v Gayheart, 285 Mich.App. 202, 216; 776 N.W.2d 330 (2009). As such, the prosecution bears the burden of proving beyond a reasonable doubt that the chosen venue is proper. See id.; People v Webbs, 263 Mich.App. 531, 533; 689 N.W.2d 163 (2004). That said, determining which venue is proper for a criminal trial is a two-step process: (1) a trial court must first identify the proper venue under the "general venue" rule; and (2) the court must then determine whether a statutory venue exception applies that permits a departure from that "general venue" rule. See McBurrows, 504 Mich. at 313-314. In that regard, the "general venue" rule is that venue for a criminal prosecution is proper in the county where the offense was committed. See id. at 315 (citations omitted); see also Houthoofd, 487 Mich. at 579. And in order to determine "where" a crime was committed, the courts are obligated to carefully scrutinize the criminal statute or statutes at issue. See id. at 317. In short though, "the question is where the crime itself was committed," not where the consequences of the crime are felt. See id. at 317.
In this case, it is undisputed that Lapeer County was a proper venue for each of Defendant's six felony convictions in his Lapeer County case.Obviously, each of those charges-AWIM, Carrying a Firearm With Unlawful Intent, Third Degree Fleeing & Eluding, Felon in Possession, and two counts of Felony Firearm-were all committed in Lapeer County. However, three of those crimes-Carrying a Firearm With Unlawful Intent, Felon in Possession, and one of the Felony Firearm counts-were also committed in Macomb County as well. The elements of Carrying a Weapon with Unlawful Intent required proof that Defendant: (1) carried a firearm or dangerous weapon; (2) with the intent to unlawfully use the weapon against another person. See People v Mitchell, 301 Mich.App. 282, 292; 835 N.W.2d 615, 621 (2013). Well, the evidence in this case plainly showed that Defendant obtained his firearms in Macomb County, possessed them in Macomb County, and carried them in Macomb County. While doing so, the evidence also established that Defendant, while still in Macomb County, formulated the unlawful intent to use those weapons, as evidenced by his driving to Lapeer County for the unlawful purpose of killing two other individuals in Lapeer County. Thus, Macomb County was a proper venue for those charges under the "general venue" rule. Similarly, under that "general venue" rule, Macomb County was also a proper venue for Defendant's plea-based convictions for Felony Firearm and Felon in Possession of a Firearm. The elements of Felony Firearm required proof that Defendant possessed a firearm during the commission of, or the attempt to commit, a felony. See People v Bass, 317 Mich.App. 241, 268-269; 893 N.W.2d 140 (2016). The elements of Felon in Possession of a Firearm required proof that Defendant: (1) was a felon who possessed a firearm; (2) before his right to do so was formally restored under MCL 28.424. See Bass, 317 Mich.App. at 267-268. Here again, the evidence unequivocally established that Defendant obtained and possessed his firearms in Macomb County without first having his right to do so restored-a textbook Felon in Possession of a Firearm offense. And by doing so, Defendant also possessed those firearms in Macomb County while he was in the course of committing that Felon in Possession of a Firearm offense in Macomb County. Thus, even though he later committed these three crimes in Lapeer County, Defendant also committed those three crimes in Macomb County as well. Accordingly, even under the "general venue" rule, Defendant was properly tried in Macomb County for Carrying a Weapon with Unlawful Intent, and he was properly convicted of both Felon in Possession of a Firearm and one count of Felony Firearm based upon his pleas on the day of trial.
Although Defendant was charged with 10 crimes in the Lapeer County case, the jury acquitted him of four of those counts-two counts of AWIM and two Felony Firearm counts associated with those two AWIM charges. (See Tr. 11/1/18 at 27-28).
Notwithstanding the preceding argument regarding the "general venue" rule, Macomb County was also a proper venue under a statutory exception to the "general venue" rule for each of Defendant's remaining three convictions from the Lapeer County case. See MCL 762.8. As already noted, a statutory venue exception may apply in a criminal case to permit prosecution in a county other than where a crime actually occurred. See McBurrows, 504 Mich. at 324-325. Under MCL 762.8:
Whenever a felony consists or is the culmination of [two] or more acts done in the perpetration of that felony, the felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect.
Stated differently, MCL 762.8 allows prosecution for a crime that involves more than one act done in perpetration thereof in any county where: (1) any one of those acts were committed; (2) any one of those acts was intended to have an effect; or (3) the crime itself was intended to have an effect. See id. And importantly, an "act done in perpetration" of a felony need not also constitute an actual element of the crime. See People v Meredith (On Remand), 209 Mich.App. 403, 409; 531 N.W.2d 749 (1995).
In the instant case, Defendant's convictions for AWIM, the Felony Firearm charge associated with that AWIM, and for Third Degree Fleeing & Eluding a Police Officer, all consisted of, or were the culmination of, more than one act done in the perpetration of those offenses. Additionally, at least one of those acts done in perpetration of each felony was either committed in, or was intended to have an effect in, Macomb County, or the crime itself was intended to have an effect in Macomb County. See MCL 762.8. Specifically, in order to commit the crime of AWIM, Defendant had to first formulate the intent to kill, and then had to commit an assault thereafter. See People v Jackson, 292 Mich.App. 583, 588; 808 N.W.2d 541, 548 (2011). And as previously stated, Defendant formulated that intent while he was in Macomb County. Likewise, in order to commit the crime of Felony Firearm, Defendant first had to obtain that firearm, and then had to either commit, or attempt to commit, the AWIM. See Bass, 317 Mich.App. at 268-269. Again, the evidence plainly showed that Defendant obtained the firearms for the AWIM in Macomb County. As such, the statutory exception applies to both crimes in this case. Finally, in order to commit the crime of Third Degree Fleeing & Eluding, Defendant had to obtain a vehicle, refuse to stop that vehicle when ordered, and crash that vehicle thereafter. See People v Grayer, 235 Mich.App. 737, 741-742; 599 N.W.2d 527 (1999). Defendant not only obtained the vehicle that he used for that crime in Macomb County, but he also fled and eluded the police to evade capture for his crimes in Macomb County-i.e. his crime was intended to have an effect in Macomb County. As such, under MCL 762.8, venue was also proper in Macomb County for each of Defendant's charges in his Lapeer County case. Accordingly, because venue was proper in Macomb County, the trial court properly denied Defendant's motion to dismiss, and his request for appellate relief on this ground must respectfully be rejected by this Honorable Court.
B. Even if Macomb County was not a proper venue for Defendant's Lapeer County case, that venue error was undoubtedly harmless.
As this Court has previously held, improper venue is not a constitutional structural error, and as such, it remains subject to the harmless error analysis under MCL 769.26. See Houthoofd, 487 Mich. at 571. In that regard, MCL 769.26 specifically provides, in relevant part, that:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case . . . for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.
Notably though, even where some error has been established on appeal, "the defendant has the burden of establishing a miscarriage of justice under a 'more probable than not' standard in order to justify reversing a conviction." See Houthoofd, 487 Mich. at 587 (citing People v Lukity, 460 Mich. 484, 495-496; 596 N.W.2d 607 (1999)). This generally requires a showing of prejudice, so the defendant must establish that the error somehow affected the outcome of the lower court proceedings. See id. at 590. Such an error is only outcome determinative "if it undermines the reliability of the verdict." See id. at 587.
Simply stated, Defendant has failed to establish that some outcome determinative error occurred in this case. Under Michigan law-namely MCL 769.26-Defendant was required to establish that a miscarriage of justice occurred to warrant reversal. But here, assuming for the moment that venue was improper for Defendant's Lapeer County case, he still received a fair trial before an impartial jury, and it cannot be argued that there was a miscarriage of justice simply because the trial was in Macomb County. See Houthoofd, 487 Mich. at 590. Defendant has therefore failed to meet his burden of proof to establish that, more probably than not, there was a miscarriage of justice by trying him for the Lapeer County case in Macomb County. Surely then any improper venue could not possibly have undermined the reliability of his verdicts in either case.
Notwithstanding the forgoing, this Court has expressly instructed the prosecution to address whether "the Court of Appeals erred by failing to consider the effect of [the assumed] venue error on [the Macomb County case]." In response, the People must first respectfully assert that the instruction assumes that the Court of Appeals should have considered the effect of the venue error on the Macomb County case. But contrary to that assumption, Defendant's only argument in the Court of Appeals that the outcome of the Macomb County case would have been different but-for the venue error appeared in a cursory, unsupported paragraph at the end of his argument on this issue:
[H]ad the [trial] court not erroneously concluded that Macomb was a proper venue for the Lapeer charges and then allowed the two cases to be joined for one trial, it is more probable than not that the outcome of the murder charge would have been different. The prosecution's case against [Defendant] on this count
was circumstantial and far from overwhelming. Though [Defendant] and Ms. Fabbri often argued, there was no evidence that [Defendant] wanted Ms. Fabbri dead or had any motive to kill her. Permitting the jury to hear weeks of testimony about other bad acts stemming from what appeared to be a mental breakdown on [Defendant's] part was unduly prejudicial. It also encouraged the jury to conclude that [Defendant] was running from the police because he was responsible for Ms. Fabbri's death. [(See Def.'s Brief on Appeal at 44).]
Surely though, it was "not enough for [Defendant] . . . simply to announce a position or assert an error and then leave it up to [the Court of Appeals] to discover and rationalize the basis for his claims ... and then search for authority either to sustain or reject his position." See People v Beck, ___Mich ___; ___ N.W.2d___ (2022) (Docket No. 160668). Rather, Defendant was required to provide the Court with the authority to support his argument, but he failed to do so. Nevertheless, the Court of Appeals provided the appropriate basis for rejecting Defendant's cursory argument when it stated the following:
The evidence against [D]efendant, although circumstantial, was very strong. Fabbri was last seen in Grala's driveway having a heated exchange with someone. Grala was not home at the time, but evidence suggested that defendant was still there from the night before: a neighbor had seen a gray pickup truck parked behind Grala's house, which is where defendant parked his vehicle the previous night. Further, shortly after this heated exchange, a gunshot was heard by neighbors. The shell casing that was found in Grala's driveway was fired from the handgun that was found in [D]efendant's possession. Fabbri's PT Cruiser was relocated from the driveway to the rear of Grala's house. And sometime after the shooting, a gray Ford pickup truck, which was consistent with the truck [D]efendant was driving at the time and was inconsistent with Grala's Chevy truck, was seen and heard speeding away from Grala's home. Further,
[D]efendant's statements the following day indicating that Fabbri had been killed tended to show that [D]efendant was the killer because the police explained that they had informed no one-including [D]efendant's father-that Fabbri had been killed. In other words, the only way [D]efendant would have known that Fabbri had been killed was to have been present at the time of the killing. Consequently . . . it does not affirmatively appear that the error affected the outcome of the proceedings. Therefore, reversal would not be required.
[A]ny error with respect to statutory venue is not jurisdictional and does not constitute constitutional error. Rather, defendant has the burden of establishing a miscarriage of justice under a "more probable than not" standard to justify reversing a conviction. Thus, defendant must show prejudice, i.e., that the error affected the outcome of the lower court proceedings. Defendant has failed to make this showing. Defendant merely suggests that the jury was impermissibly swayed to find against him on the Lapeer County crimes because it had been influenced by what it heard related to the Macomb County crimes, including the premediated murder of Fabbri. The evidence against defendant was overwhelming with respect to his Lapeer County convictions. Defendant was convicted of AWIM as to Nordlund, felony-firearm, carrying a weapon with unlawful intent, and fleeing or eluding police officers, and two counts of felony-firearm. In short, because the evidence of defendant's guilt of these crimes was overwhelming, he has not shown that the result would have been different had he been tried in Lapeer County.
Notably, regarding the AWIM charge, there were several witnesses who all saw (as evidenced by the shattering and flying of glass from the truck defendant was driving) and heard a gunshot as defendant drove on North Saginaw Street near Nordlund. Nordlund testified that he heard the bullet go right by his head. The fact that defendant fired near Nordlund coupled with the fact that Nordlund immediately before had
given defendant "the finger," is strong circumstantial evidence that defendant intended to shoot Nordlund in anger or retaliation. And it is beyond any serious dispute that defendant also eluded police in Lapeer County. While that fact may have been uncertain at the beginning of the pursuit when unmarked police vehicles tried to stop defendant, any confusion was removed later when marked police vehicles with lights and sirens took the lead in the pursuit and defendant still failed to pull over.
We also note that defendant's position that the jury was impermissibly influenced by being exposed to the circumstances of Fabbri's murder is belied by the fact that the jury acquitted defendant of AWIM with respect to both Detectives Onyski and Perry. The jury's decision to acquit defendant of those charges shows that the jury took its responsibility very seriously and individually considered each of the charged counts, as it was supposed to do. Accordingly, it is not more probable than not that the venue error affected the outcome of the proceedings.
From that opinion, it is clear that the Court of Appeals did not consider Defendant's claim of prejudice to the Macomb County case to be anywhere near viable.
Regardless of what the Court of Appeals did, the evidence in this case plainly established that, even if the Lapeer County case should have been tried separately, such an error was harmless. All of the evidence from the Lapeer County case that was introduced at trial still would have been admissible even if the cases were separated, and Defendant has failed to make any effort to counter that argument. Moreover, even without that evidence, Defendant's admissions alone make it obvious that the jury still would have convicted him of the charges in the Macomb County case. As the Court of Appeals already aptly explained:
The evidence against [D]efendant, although circumstantial, was very strong. Fabbri was last seen in Grala's driveway having a heated exchange with someone. Grala was not home at the time, but evidence suggested that [D]efendant was still there from the night before: a neighbor had seen a gray pickup truck parked behind Grala's house, which is where defendant parked his vehicle the previous night. Further, shortly after this heated exchange, a gunshot was heard by neighbors. The shell casing that was found in Grala's driveway was fired from the handgun that was found in [D]efendant's possession. Fabbri's PT Cruiser was relocated from the driveway to the rear of Grala's house. And sometime after the shooting, a gray Ford pickup truck, which was consistent with the truck [D]efendant was driving at the time and was inconsistent with Grala's Chevy truck, was seen and heard speeding away from Grala's home. Further, [D]efendant's statements the following day indicating that Fabbri had been killed tended to show that [D]efendant was the killer because the police explained that they had informed no one-including [D]efendant's father-that Fabbri had been killed. In other words, the only way [D]efendant would have known that Fabbri had been killed was to have been present at the time of the killing. Consequently . . . it does not affirmatively appear that the error affected the outcome of the proceedings. Therefore, reversal would not be required.
Therefore, even if the venue was somehow improper, such an error was undoubtedly harmless, and as such, Defendant's request for appellate relief on this ground must respectfully be rejected by this Honorable Court.
C. Michigan law precludes the reversal of Defendant's convictions based upon any error in venue.
Finally, Defendant's request for relief should also be denied on the basis that Michigan's statutory laws conclusively and expressly provide that no judgment "shall be void or voidable solely on the ground that there was improper venue." See MCL 600.1645. In fact, this Court held just that in Houthoofd, 487 Mich. at 591:
Moreover, defendant's convictions should not be vacated because the Legislature has provided, in MCL 600.1645, that "[n]o order, judgment, or decree shall be void or voidable solely on the ground that there was improper venue." This provision of the Revised Judicature Act (RJA) is applicable to criminal proceedings as recognized by the title of the act, which provides that the RJA is applicable to "pleading, evidence, practice and procedure in civil and criminal actions and proceedings in said courts...." This Court has also recognized that the RJA can be applicable to criminal proceedings and procedure. Because criminal venue is inherently procedural in nature, MCL 600.1645 applies. Thus, defendant's convictions cannot be vacated solely on grounds of improper venue.
The holding above applies equally to Defendant's case, and for that reason alone, his request for appellate relief on this ground must respectfully be rejected by this Honorable Court.
QUESTION II
THE TRIAL COURT DID NOT ERR BY ADMITTING IRRELEVANT AND OVERLY PREJUDICIAL EVIDENCE AT TRIAL.
STANDARD OF REVIEW
This Court reviews such a properly preserved challenge to a trial court's decision to admit evidence for an abuse of discretion. See People v Solloway, 316 Mich.App. 174, 191; 891 N.W.2d 255 (2016). An abuse of discretion occurs only where the trial court's decision falls outside the range of reasonable and principled outcomes. See id. at 191-192. That said, this Court will not generally find an abuse of discretion in cases that involve a close evidentiary question. See People v Everett, 318 Mich.App. 511, 516; 899 N.W.2d 94 (2017). Regardless though, even if the trial court has made some error in the admission of the challenged evidence, this Court still will not reverse Defendant's convictions unless "it affirmatively appears," "after an examination of the entire cause," that the error: (1) has resulted in a miscarriage of justice; or (2) was, more probably than not, outcome determinative-i.e. it "undermined the reliability of the verdict." See MCL 769.26; People v Douglas, 496 Mich. 557, 565-566; 852 N.W.2d 587 (2014).
ARGUMENT
Defendant's second appellate claim-that the trial court erroneously admitted an unfairly prejudicial autopsy photograph and series of text messages between him and the victim at trial contrary to MRE 403-must also be rejected by this Court. Defendant claims that the trial court erred by admitting the following "unfairly prejudicial" evidence at trial: (1) an autopsy photograph of the fetus found inside the victim, Lisa Fabbri; and (2) various text messages between Defendant and Ms. Fabbri during the months leading up to her murder. Not true. The Michigan Court Rules govern the admissibility of evidence in a criminal case, including the admission of autopsy photographs and text message content. See MRE 401. Pursuant to those rules, all "relevant evidence is admissible," and thus, evidence "which is not relevant is not admissible." See MRE 402. In that regard, "relevant evidence" is defined to mean "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See MRE 401. "A trial court admits relevant evidence to provide the trier of fact with as much useful information as possible." See People v Cameron, 291 Mich.App. 599, 612; 806 N.W.2d 371 (2011).
Of course, even relevant evidence is not admissible if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." See MRE 403. But MRE 403 is certainly not intended to exclude "damaging" evidence, as any relevant piece of evidence will always be damaging to a party to some extent. See People v Mills, 450 Mich. 61, 75; 537 N.W.2d 909 (1995), mod on other grounds 450 Mich. 1212 (1995). Instead, only that which is unfairly prejudicial is prohibited. See id. at 75. Such "unfair prejudice" exists where there is "a danger that marginally probative evidence will be given undue or pre-emptive weight by the jury," or where "it would be inequitable to allow the proponent of the evidence to use it." See id. at 75-76. Unfair prejudice therefore "refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock." See Cameron, 291 Mich.App. at 611 (quotation marks and citations omitted).
Autopsy Photograph
Prior to trial, the prosecution informed Defendant's counsel that it intended to introduce a photograph of the fetus discovered by the medical examiner, Dr. Daniel Spitz, during his autopsy of Lisa Fabbri. (See Tr. 10/2/18 at 33). Upon viewing the photograph, Defendant's trial counsel moved to preclude the People from admitting them into evidence, based upon his claim that the "value" of the photograph was "far outweighed by the prejudice," and he argued that the admission of the photograph would "invoke emotions in the jury" such that the jurors would "be inflamed and impassioned and weigh it against the l[a]w." (See Tr. 10/2/18 at 33-35, 39). He further argued that the same result could be achieved without admitting the color photograph of the fetus by just admitting the "oral" testimony about the fetus, by using a "computer animation" of the fetal image, or by using any one of "a million different things," such as using an "ultrasound" picture "of another fetus" "of like size." (See Tr. 10/2/18 at 34-35, 39-40). Defendant's counsel also offered to stipulate to the fact that Ms. Fabbri was pregnant with the fetus in lieu of admitting the prosecution's proposed autopsy photograph. (See Tr. 10/2/18 at 39).
In response, the prosecution correctly explained that the autopsy photograph of the fetus was directly probative of two essential elements of the charge of Assault on a Pregnant Individual to Intentionally Cause a Miscarriage under MCL 750.90a. (See Tr. 10/2/18 at 34-35). Specifically, the prosecution noted that, to prove beyond a reasonable doubt that Defendant committed that offense, the People had to establish that Ms. Fabbri was actually pregnant, and that a miscarriage of the fetus actually resulted from Defendant's assault. (See Tr. 10/2/18 at 34-35). As such, the photograph of the fetus at issue was the most probative evidence and was therefore directly relevant to establishing those offense elements. (See Tr. 10/2/18 at 34-35). The prosecution also correctly noted that, although Dr. Spitz would be able to testify to his findings, "photographs are not excludable simply because a witness can orally testify about the same information," as photographs "may be admitted to corroborate a witness's testimony." (See Tr. 10/2/18 at 34-35 (citing Mills, 450 Mich. at 61)). However, in an effort to lessen any possible prejudice that may result from admitting the color photograph of the fetus, the prosecution also offered to present a black and white redacted version of the photograph to the jury-a solution that Defendant's counsel agreed "would be less impassioning or inciting." (See Tr. 10/2/18 at 39-40), In light of the foregoing, the trial court correctly held that the probative value of the autopsy photograph was not outweighed by the risk of unfair prejudice under MRE 403, and thus, Defendant's motion was properly denied. Based on that ruling, the prosecution went on to introduce the black and white autopsy photograph during the direct examination of Dr. Spitz, and the trial court admitted that photograph into evidence as People's Exhibit 89. That decision was undoubtedly proper.
Notably, when the prosecution moved for the admission of the photograph, Defendant's trial counsel actually stated that he had "no objection" to its admission. (See Tr. 10/11/18 at 125).
As a general rule, the trial court has the discretion to admit photographs into evidence as long as the proposed photographs are pertinent, relevant, competent, and material on any issue in the case. See People v Eddington, 387 Mich. 551, 562; 198 N.W.2d 297 (1972). Thus, the admissibility of photographs in a criminal trial is primarily based upon the relevance of the proposed photographs. See Mills, 450 Mich. at 76. With regard to "gruesome" or "shocking" photographs, our Supreme Court has specifically held that "photographs that are merely calculated to arouse the sympathies or prejudices of the jury should not be admitted" at trial. See id. at 76. But a trial court is not permitted to base an admissibility decision solely on the graphic nature of a proposed photograph. See People v Brown, 326 Mich.App. 185, 192; 926 N.W.2d 879 (2019). Instead, a photograph should only be excluded under MRE 403 "when the danger of unfair prejudice substantially outweighs the probative value of the evidence." See id. at 192 (citing People v Head, 323 Mich.App. 526, 541; 917 N.W.2d 752 (2018)). Moreover, it is fundamental that the prosecution must prove each element of a crime beyond a reasonable doubt. See People v Mette, 243 Mich.App. 318, 330; 621 N.W.2d 713 (2000).
In sum, the autopsy photograph was relevant to establishing two important elements of one of the charged offenses, and although this information could have been introduced solely through witness testimony, the photograph was not only direct evidence of the two elements, but was also relevant "to corroborate a witness's testimony." See Brown, 326 Mich.App. 193 (citation omitted). Furthermore, the risk of potential prejudice was admittedly lessened with the use of a redacted, non-color photograph instead of the original color image. Accordingly, the record in this case makes it abundantly clear that the autopsy photograph was properly admitted at trial, and as such, Defendant's request for appellate relief on this ground should be denied by this Honorable Court.
Admission of Text Messages
In this case, in the midst of trial, Defendant's counsel essentially moved to preclude the prosecution from introducing certain portions of text message evidence on the basis that the content was overly prejudicial and irrelevant. (See Tr. 10/23/18 at 3-7). The trial court therefore went through each and every one of the proposed text messages with Defendant on the record before ruling on the admission of the evidence. (See Tr. 10/23/18 at 7-23). Nevertheless, despite Defendant's claims, the trial judge concluded that the text messages at issue were relevant, and the People now reassert the trial court's reasoning as stated on the record in opposition of Defendant's instant appellate claim:
[T]hey are statements of the defendant, under [MRE 801(d)(2)] they are admissible, because the statements of defendant can only make sense if they are juxtaposed to the statements received from Ms. Fabbri. Ms. Fabbri's statements are not hearsay because they're not being offered to prove the truth of the matter, rather, they're simply being offered to explain what [Defendant]'s statements are. And, also, as in any argument, or any conversation in which there's discord, the truth of the matter really doesn't matter at all. All you're really trying to show is that there was an argument. It doesn't matter literally who's right, or who's wrong, or who's being factual, and who's not being factual. The purpose of this is simply to show that there was this disagreement, which is relevant on the issue of premeditation and motive.
I mean it - it - it's not okay. It's -- it's -- it's an - an [in]appropriate (inaudible) language using sexual references, but in terms of showing the relationship between the parties, it is highly relevant, and any prejudicial value -- any -- any prejudicial effect does not substantially outweigh the evidentiary value. Again, in [MRE] 403, the prejudice has to substantially outweigh the evidentiary value. And, in a homicide case in which the allegation is that the defendant had motive,
and had premeditated the murder of his relationship partner, the evidence of discord is important, and of particular importance, is the language that they use, because you can --you can -- you can -- there's a world of difference in terms of judging what -- what might be on somebody's mind if somebody says "I would really wish that you would not see other men" as opposed to "you're jacking off too many dicks". One is just an expression of wishes in a very civilized matter. The more crude way of saying it is, of course, crude, but it also is a window into the attitude, the mindset, the thinking, the motives of the person who would use that type of language. So, there's --there's no requirement to sanitize language. As a matter of fact, on the search for the truth, it's just the opposite. We need to hear the actual language so that the jurors can use their experience and common sense to figure out what was on the person's mind. And, not only what is said, but the way that it is said, and the words that are chosen are all windows into the mind of the person who was doing the talking.
-- if this -- if this were a case involving the homicide in which a police officer was the victim, it would be one thing to -- to -- to have a person say, I really don't police -- I really don't like police officers, and on the other end, have the words say, you know, you're gonna die pig. What -- what you said, and how it's said, and the words that are used are important in figuring out a person's intent. Next.
And, again, it's -- it - it goes back to what I said about marital or relationship discord. Again, the fact that Lisa Fabbri is saying "really? You're such a fuck. Never mind. Don't call ever --don't ever call again". The -- the words that she uses and the effect that it would have upon the listener in this case, allegedly [Defendant], is again, a factor in the long string of factors that the jury must be -- must know about in order to make a decision as to not only what [Defendant] was saying, but what Ms. Fabbri was saying in order to make a judgment as to what would be the effect on [Defendant]'s state of mind. So, that --that is not objectionable.
I appreciate the fact that you so diligently represented your client as to require us to go through that, but, as I've ruled, I think that your objections were well thought out, well-reasoned,
but my -- my decision is that these matters are admissible for the reasons I stated. Thank you. [(See Tr. 10/23/18 at 15-22)].
Thus, the trial prosecutor's properly argued, and the trial judge correctly ruled, that the text messages were not overly prejudicial, and were therefore properly admitted at trial. Defendant's claim on appeal therefore lacks merit.
Harmless Error
Finally, it must be noted that, even if the trial court did somehow error in admitting either piece of evidence, such an error surely does not constitute sufficient grounds to reverse Defendant's convictions in this case. See MCL 769.26; Douglas, 496 Mich. at 565-566. The prosecution admitted only a single black and white photograph of the fetus in this case, so it was not overly gruesome or prejudicial. Likewise, although vulgar and sexual in nature, the text messages admitted in this case merely established Defendant's own intent and relationship with the victim, and intent was a required element of the crimes charged. Furthermore, the entirety of the text messages established context for Defendant's own statements and state of mind toward Ms. Fabbri. In addition, the remainder of the evidence admitted in this case was vast, and the admission of the challenged evidence could not possibly have affected the jury's ultimate verdict in light of that untainted evidence. As such, any possible error in admitting the autopsy photograph or text messages could not possibly have been outcome determinative, nor could it have resulted in a miscarriage of justice. Accordingly, Defendant's request for appellate relief must respectfully be denied by this Honorable Court.
QUESTION III
THE TRIAL COURT DID NOT ERR BY DENYING DEFENDANT'S REQUEST FOR A MISTRIAL.
STANDARD OF REVIEW
This Court reviews de novo a defendant's constitutional due-process claim. See People v Bosca, 310 Mich.App. 1, 26-27; 871 N.W.2d 307 (2015), rev'd in part on other grounds 969 N.W.2d 55 (2022). However, the Court reviews a trial court's decision to deny a defendant's request for a mistrial for an abuse of discretion. See People v Lane, 308 Mich.App. 38, 60; 862 N.W.2d 446 (2014); People v Schaw, 288 Mich.App. 231, 236; 791 N.W.2d 743 (2010).
ARGUMENT
Defendant's third appellate claim-that the trial court erred when it denied his request for a mistrial after the prosecution briefly and inadvertently displayed a photograph of Defendant in jail clothing-must also respectfully be rejected by this Court. Generally speaking, a mistrial is only appropriate where a prejudicial irregularity exists that impairs the defendant's ability to receive a fair trial. See People v Dickinson, 321 Mich.App. 1, 18; 909 N.W.2d 24 (2017); Schaw, 288 Mich.App. at 236. And given that general rule, our appellate courts have consistently held that, when an irregularity occurs at trial, the "trial court should only grant a mistrial" if that irregularity: (1) "is prejudicial to the rights of the defendant"; (2) "impairs the defendant's ability to get a fair trial"; and (3) the "prejudicial effect" of that error "cannot be removed in any other way." See Lane, 308 Mich.App. at 60. Furthermore, when deciding whether or not to declare a mistrial in a criminal case, "the trial court may consider, among other things, whether the prosecutor intentionally presented the information to the jury or emphasized the information." See id. at 60 (citing People v Horn, 279 Mich.App. 31, 36; 755 N.W.2d 212 (2008)).
Here, there is absolutely no dispute that Defendant's request for a mistrial stemmed solely from the prosecution's unintentional publication of an unredacted photograph that depicted Defendant standing in front of a wall at the Macomb County Jail on the night of his arrest. In fact, immediately after the accidental display of the photograph occurred on the fifth day of trial, the trial judge excused the jury and made a thorough record of the incident:
It appears that what we're talking about is a photograph that was taken while the Defendant was in the County Jail. It was agreed off the record that we would crop the photo because all that the Prosecutor was interested in is getting a picture of his shirt. The investigator was being directed to crop the picture so that we would not show the Defendant in the jail setting. The main screen was turned off so that the jurors didn't see it on the main screen, but we are in electronically enhanced courtrooms, meaning that there are one, two, three, four screens in the jury box that the jurors can see. I had a funny feeling and so I asked if anybody is seeing anything on the screen and their answer was yes and I confirmed that by looking down at the screen I have in front of me and seeing it as well. Which means that the jury has seen, briefly, but they've seen maybe for about at least five or six seconds a photograph of the Defendant, not in cuffs, not restrained, but in a setting that could be the basement of this building, could be any other block-type structure. But it is the jail and to a perceptive eye it could very well look like the jail.
Now of course the jury has already seen the Defendant being taken into custody, so we obviously don't want to have the jury see the Defendant in any type of restraints or any indication that he must be guilty because, look it, they have him in handcuffs. But we don't see that in this photograph.
On the other hand I think a fair, objective way to look at the photograph is that out of 15 jurors probably eight to ten already guessed that that was a photo of him in a jail. That's my initial documentation for the record as to what we saw and obviously what the problem now is. [(See Tr. 10/11/18 at 29-30)].
Despite the trivial and unintentional nature of the error, Defendant's trial attorney still moved for a mistrial in the lower court, though in the alternative, he simply requested that a curative instruction be given to the jury. (See Tr. 10/11/18 at 30-31). The prosecution obviously opposed Defendant's request for a mistrial, but it had no objection to the trial court providing a curative instruction. (See Tr. 10/11/18 at 30-31). Thus, after hearing arguments from both parties, the trial court denied Defendant's request for a mistrial and granted his alternative request for a curative instruction. (See Tr. 10/11/18 at 31-36). In light thereof, and with the express approval of Defendant, the trial court gave the following curative instruction to the jury as soon as they returned to the courtroom:
[M]embers of the jury, there's a photograph up on the screen now. The [Prosecutor] is going to ask this witness some questions about this photograph. But just so you know why this delay, this purpose of this photograph was to just show the shirt that [Defendant] was wearing, not the pants, not the shoes, not anything else. And so if you saw or you think you saw anything else in the photograph, it was only on for about five or six seconds, but ignore anything else in the photograph. It has absolutely no evidentiary value and you're probably even wondering to yourself what in the heck is he talking about. But if you, if you did think that you saw something else just ignore it completely. The only thing that this photograph was supposed to show was the shirt. It wasn't cropped right. Now it is cropped right. And so with that instruction, and again you are obligated to follow the Court's instructions. [(See Tr. 10/11/18 at 43-44)].
Contrary to Defendant's appellate claim, there is absolutely nothing about the trial court's decision that could possibly be said to have been improper. First off, Defendant expressly approved of the curative instruction that was ultimately given to the jury at his request, so he has effectively waived any claim of error related to that instruction. See People v Shahideh, 482 Mich. 1156, 1157; 758 N.W.2d 536 (2008) (explaining that one "who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights" since "his waiver has extinguished any error" and that "counsel may not harbor error as an appellate parachute"); see also People v Miller, 326 Mich.App. 719, 725-726; 929 N.W.2d 821 (2019) (holding that a defendant waives any future appellate claim of instructional error when his counsel expressly approves of the trial court's action).
Notwithstanding Defendant's waiver, the trial court's decision to deny the request for a mistrial was clearly the correct one under Michigan law. Simply stated, Defendant presented the trial court with nothing to establish that the brief display of the photograph had any prejudicial impact on Defendant whatsoever. Nor did Defendant assert how his right to a fair trial could have possibly been impaired by a photograph of himself in front of a cinder block wall, especially considering the fact that the jury had already seen evidence of him being arrested and handcuffed! Most importantly, even if some prejudice could have been possible, Defendant failed to explain how a curative instruction would not remove the prejudice. In fact, to the contrary, Defendant agreed that the curative instruction would cure the prejudice. In that regard then, not only was the trial court's decision to deny the request for a mistrial proper, but any potential prejudice that may have resulted from the very brief display of the unredacted photograph in this case was surely eviscerated by the trial judge's timely and appropriate curative instruction-an instruction that was given with the express approval of Defendant's trial counsel. Defendant's request for appellate relief on this issue must therefore be denied as well.
QUESTION IV
THE TRIAL COURT DID NOT ERR BY PROPERLY QUESTIONING DEFENDANT'S EXPERT AT TRIAL.
STANDARD OF REVIEW
This Court review de novo whether judicial conduct denied a defendant of a fair trial. See People v Stevens, 498 Mich. 162, 168; 869 N.W.2d 233 (2015).
ARGUMENT
Defendant's final appellate claim-that the trial court pierced the veil of impartiality by cross-examining his expert at trial-was also properly rejected by the lower appellate court. In short, the People adopt the analysis and conclusions of the Court of Appeals on this issue. Thus, by considering the totality of the circumstances, it is evident that the trial court asked numerous questions throughout the proceedings that did not show a bias against Defendant or his witness. Moreover, in addition to the court providing general cautionary instructions related to how the jury is not to read anything into the court's questions, the court specifically instructed the jurors the day after the witness testified that, although it asked a lot of questions, the jury must disregard whatever it believed the court may have thought related to any fact or witness. The court reiterated that the jury is the ultimate judge of the facts in the case. Accordingly, the Court of Appeals properly concluded that the trial judge's questions did not pierce the veil of judicial impartiality, and as such, Defendant's request for appellate relief on this issue must also be denied.
RELIEF REQUESTED
In light of the foregoing, the People respectfully request that this Honorable Court DENY Defendant's Application for Leave to Appeal to this Court.