Opinion
340550
06-22-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT GLENE CARD, JR., Defendant-Appellant.
UNPUBLISHED
LC No. 17-000106-FC
Before: Swartzle, P.J., and Cavanagh and Letica, JJ.
Per Curiam.
Defendant, Robert Card, Jr., appeals as of right his jury-trial conviction of second-degree murder, MCL 750.317. He was sentenced as a fourth-habitual offender, MCL 769.12(1)(a), to 40 to 70 years' imprisonment. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from the brutal murder of the victim, John Allen, in the winter of 2014. The victim lived at his family's home located at 910 St. Clair Street in Port Huron. Judy Higley-Zuehlke (Higley) had lived with the victim for some time at that address, but the victim's mother evicted her from the home. After the victim's mother died, he inherited the home but did not allow Higley to live there although she regularly visited him. The victim was a quiet individual with a small circle of friends. During the summer, the victim worked at the Black River Country Club, performing lawn maintenance. In the winter, he removed snow for a few clients. The victim's brother, James Allen, owned a store that was located around the corner from the victim's home.
The victim had been working on a renovation project in his home, which included repairing a staircase leading to the second level. Mark McDougal, the victim's boss at the Black River Country Club, agreed to help with the project and delineated the materials and tools needed to complete it. On Saturday, January 25, 2014, McDougal and his wife encountered the victim and Higley at a home construction store. McDougal suggested that the victim obtain the lumber from a different store that would cut the wood to specific measurements. On January 29, 2014, the two met at the victim's house to discuss the upcoming work. McDougal sat at the victim's white Formica kitchen table where a cheap, lightweight, "dollar store" hammer was placed. McDougal described it as being red fiberglass with a flat black paint covering part of it. Notably, this red and black hammer was never located in the home following the victim's death.
McDougal testified that people will often add some type of distinguishing mark to help identify a tool as theirs.
James often saw the victim when he came into the store to make purchases or when he walked by the store. James last saw the victim on Thursday, January 30, 2014, shortly before the 2014 Super Bowl that was played on Sunday, February 2, 2014.
On that Friday, there was substantial snowfall in the area. Approximately six inches of snow fell on Saturday, February 1. James received phone calls from the victim's snow-removal clients because the victim had not shoveled their snow. James attempted to call the victim but did not reach him.
On Monday, February 3, 2014, James walked over to the victim's home to check on him. James observed that the victim had not shoveled the snow surrounding his home. James used his key to the victim's home to open the door, immediately detected an odor, and observed the victim lying on the floor. James stepped back out of the home and closed the door. He was headed back to the store to call the police when he encountered the victim's neighbor, Rachelle Bradshaw. She offered to call the police.
Responding officers found no signs of forced entry into the victim's home and noticed that the victim's body appeared to have suffered severe trauma, including a hole in the back of his head. A meat thermometer was found lying on a chair next to the victim's body. In a subsequent search, police found the victim's cell phone, but were unable to retrieve text messages from it. The victim's wallet and a coin purse were never found in the home.
Bradshaw lived next door to the victim in a house that had been converted into apartment units. She lived in the lower unit with defendant, her boyfriend at the time of the victim's murder. On Fridays, it was customary for Bradshaw to go to her son's home to babysit her granddaughter from 4:00 p.m. until midnight, and defendant often would accompany her. On Friday, January 31, 2014, defendant went with Bradshaw to babysit. However, a few hours into the evening, Bradshaw and defendant had an argument, and Bradshaw made defendant leave. Bradshaw also described defendant as engaging in some odd behavior earlier that day. Before the two of them left to babysit Bradshaw's granddaughter, defendant emerged from the bathroom, holding his hands and arms up and looking them over. Bradshaw was concerned by this behavior.
Bradshaw's son reported that defendant returned later in the evening and woke him up. Bradshaw and defendant purchased a television from him. Defendant demanded the return of the money for the television.
Bradshaw also described an odd interaction that occurred with the victim. Initially, she could not recall exactly when this incident occurred, except that it transpired in the middle of winter. In the afternoon, the victim knocked at her apartment door, and defendant answered it. Bradshaw heard the victim state, "please don't hit me." The victim was intoxicated, wore socks with no shoes, and had no coat. Defendant and the victim spoke for approximately 5 minutes.The victim left to go home. Sometime after this interaction, defendant advised Bradshaw that he was leaving to check on the victim and was gone for 5 to 10 minutes. Upon defendant's return, Bradshaw did not notice anything odd with his clothing, such as it being disheveled or stained.
Bradshaw acknowledged that she may have told the police that this interaction occurred between January 28 and January 31, 2014. But, it had been three years since the event and she could not recall the specific date at trial.
Contrary to her testimony in Higley's trial, Bradshaw said that she did hear the victim and defendant's entire conversation.
Dr. Daniel Spitz, the chief medical examiner for St. Clair County, estimated that the victim was deceased for 3 to 5 days when his body was discovered on Monday, February 3, 2014. The victim had suffered extensive trauma, including five distinct lacerations to the scalp; one of those was associated with a skull fracture. Dr. Spitz thought that a small, heavy, blunt instrument, like a hammer, would have caused those wounds. There also were signs that the victim had been manually strangled with hands or even by a foot or knee. Additionally, the victim sustained several rib fractures, which likely were caused by kicks, punches, or being knocked into a solid structure. Notably, there was a puncture wound involving the victim's inner ear into his brain that was a result of a purposeful and forceful insertion of a thin, rigid object. Dr. Spitz opined that, although strangulation was the actual cause of death, contributory causes of death were the puncture wounds to the ear and skull and the multiple blunt-force head injuries. He surmised that the blunt-force injuries probably occurred first, followed by strangulation and the ear puncture after the victim was rendered somewhat incapacitated.
The room temperature in the victim's home was measured at 75 degrees with 20% humidity, and contributed to the body's decomposition.
Officer Jeremy Young interviewed defendant on February 8, 2014, and the recording of that interview was admitted into evidence and played for the jury. During this interview, defendant mentioned that he could prove his whereabouts at the time of the murder if he had not deleted all his text messages. Defendant further stated that he just changed his phone number the previous day, which coincided with the day the police left a message with Bradshaw that they wanted to speak with defendant.
The police interviewed defendant again in December 2016, after defendant's DNA was discovered on the meat thermometer left in the victim's home. A recording of that interview also was admitted into evidence and played for the jury. In that nearly three-hour-long interview, defendant denied any involvement with the victim's murder and provided an explanation for his whereabouts on the morning of Friday, January 31, 2014. Defendant also did not recall ever touching a meat thermometer at the victim's house but acknowledged that he must have at some point. Defendant further admitted to selling "weed" to the victim but denied selling any crack to him or smoking any crack with him. Defendant explained that although the victim had inquired about getting some powder cocaine, defendant told him that he only could get crack, and the victim declined.
In the second interview, defendant claimed that the discussion about the victim wanting powder cocaine and his response that he only had a contact for crack cocaine happened during the summer. However, in the earlier interview, defendant said that the conversation happened the day he moved lumber for the victim.
Forensic testing of the meat thermometer did not reveal a legible fingerprint. DNA from the blood on the tip portion of the thermometer matched the victim's DNA. And on the edge of the thermometer dial, where one would typically grasp the thermometer to use it, there were two DNA donors: the victim and defendant. Notably, Higley was excluded as a donor to the DNA found on the thermometer. Although defendant did not testify at trial, he had told the police during his interviews that he had no recollection of ever seeing a meat thermometer and that, assuming the test was valid, his DNA had to have gotten on the thermometer while moving it, perhaps when rummaging for a screwdriver in one of the victim's drawers. At trial, a state police forensic analyst questioned the likelihood that such a limited contact would leave a DNA sample on the thermometer.
The purported murder confessions of Higley while in jail were admitted into evidence through the testimony of Cassandra Ross and Maureen Thorpe. Thorpe testified that Higley admitted to her and "JR" being lovers. Thorpe also stated that after Higley returned to the jail cell on one occasion, she was laughing and happy and saying that she had "gotten away with it." When Thorpe asked Higley if she really murdered JR, she responded, "Yeah, but they can't prove it." Thorpe was also asked what Higley said in response to some questions by Ross. Thorpe said that Higley stated that she "got away with it" and that JR "had so much drugs and alcohol in his system and broken bones that they couldn't prove when that had happened." Thorpe denied ever searching through Higley's belongings and denied ever reading any reports related to this matter.
While Thorpe was unavailable for defendant's trial, resulting in her prior testimony being read to the jury, Ross was able to testify in person.
Ross testified that she did not know who defendant was. But when she was in jail in April 2014, she shared a cell with Higley and Thorpe. Ross learned from Higley that someone called "JB" had died in her case and that she was involved in a "love triangle," with JB being her boyfriend. Ross explained that one day, after Higley returned from meeting with her attorney, Higley implied that she was being released because "they" could not prove anything. Higley elaborated to Ross that there were "too many pills and stuff in his system" and too many "bumps," "bruises," and "broken bones" to prove anything.
Although Thorpe testified that Higley referred to the deceased person as "JR," Ross testified that Higley used the initials "JB."
Higley's two recorded interviews with the police were admitted into evidence. In the first interview, Higley claimed that she woke up Friday morning crying after having had a "terrible nightmare" that something bad had happened to the victim. After calling the victim and him not answering, she went to the victim's house. Higley claimed that she knocked on the door and when there was no answer, she left. Higley said that after not seeing the victim, she went to a pawn shop, called the Hock Shop, and pawned a necklace she owned, and then went to Buscemi's for some beer before heading home. Higley also said that she lived with her boyfriend, William "Dale" Neumann, Jr., and that he was someone she worked for as a caregiver. Although she texted with the victim, she advised the police that it would be "too dangerous" to retain those texts on her phone. Indeed, to help conceal her contacts with the victim from Neumann, Higley had the victim's contact labeled as "Mrs. Cleary" on her phone.
A receipt admitted into evidence demonstrated that Higley pawned a necklace on Friday, January 31, 2014, at 1:31 p.m.
Two days later, Higley was interviewed by the police again. Higley reiterated that she had a dream that something bad had happened to the victim. This time, she admitted that when she went to the victim's house around 12:30 p.m. or 1:00 p.m. on Friday, January 31, she went inside and found him dead on the floor, with a hole in the back of his head. Higley further noticed that the pool of blood behind his head was "steaming," as if the incident had "just happened." Higley immediately knew that the victim was dead, panicked, and erased the text messages from the victim's cell phone. Higley also thought she could use a "joint" to calm her nerves and looked for one. When that search was unfruitful, she then looked in the refrigerator for a beer, but again was unsuccessful. Higley left the premises and locked the door, before heading to the Hock Shop.
During this second interview, Higley also supplied written statements to the police. Without objection from defense counsel, the statements were admitted into evidence. The contents of these writings are discussed in more detail in Part III-C of this opinion.
After a short deliberation, the jury returned a guilty verdict on the only presented count of second-degree murder.
In a postconviction motion, defendant moved to vacate his conviction, or in the alternate for a new trial, on the grounds: (1) that because Higley was convicted of the exact same acts, collateral estoppel barred defendant's trial; (2) that his right to a fair trial was violated by the introduction of highly prejudicial hearsay from the victim that lacked circumstantial guarantees of trustworthiness and could not be cross-examined; and (3) that his right to present a defense was impaired when the trial court refused to admit evidence of Higley's conviction. With regard to his collateral-estoppel argument, defendant clarified his position in a reply brief, stating that the state was collaterally estopped after Higley's first trial to try defendant for the murder of the victim.That is because in that first trial, the prosecutor argued that Higley acted alone and the jury convicted on that basis. The trial court denied the motion in total. With regard to the collateral-estoppel issue, the court ruled that collateral estoppel could not apply with respect to Higley's first trial because her conviction from that trial was later vacated and had no legal effect.
Higley had been tried initially for the murder of the victim, but those convictions were vacated months later when it was discovered that defendant's DNA's was present on the meat thermometer. Higley was retried and convicted again, this time with the prosecutor acknowledging defendant's DNA. Defendant's trial occurred a few months after Higley's retrial concluded.
II. ISSUES RAISED IN APPELLATE BRIEF
A. COLLATERAL ESTOPPEL
Defendant asserts that collateral estoppel precluded the state from trying him for the murder of the victim after it convicted Higley of the victim's murder in her first trial. We disagree.
Collateral estoppel presents a question of law that this Court reviews de novo. People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012); People v Ali, 328 Mich.App. 538, 542; 938 N.W.2d 783 (2019). Although first applied in civil litigation, the doctrine was recognized in criminal cases since at least 1916. See Ashe v Swenson, 397 U.S. 436, 443; 90 S.Ct. 1189; 25 L.Ed.2d 469 (1970), citing United States v Oppenheimer, 242 U.S. 85; 37 S.Ct. 68; 61 L.Ed. 161 (1916).
"Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in that prior proceeding." Ali, 328 Mich.App. at 542 (quotation marks and citation omitted). Collateral estoppel is a rule addressing issue preclusion by prohibiting the relitigation of an issue in the new action that arose between the same parties or their privies when the earlier proceeding culminated in a valid final judgment. Moses v Dep't of Corrections, 274 Mich.App. 481, 503; 736 N.W.2d 269 (2007). Further, the disputed issue must have actually and necessarily been determined in the prior proceeding. Id.
Defendant failed to demonstrate that collateral estoppel applied to bar his prosecution and conviction. Collateral estoppel barred relitigation of an issue in a new action that arose between the same parties. Ali, 328 Mich.App. at 542; Moses, 274 Mich.App. at 503. Although in Higley's first trial, she was convicted of murdering the victim, defendant was not a party or co-defendant at her trial. In Higley's first trial, the prosecutor suggested, in pertinent part, that Higley had inflicted all of the injuries to the victim. Yet, defendant fails to recognize that the jury's verdict from that trial was vacated. Therefore, the jury's findings or proclamations "are no longer adjudications at all." People v Wilson, 496 Mich. 91, 105; 852 N.W.2d 134 (2014), abrogated on other grounds Bravo-Fernandez v United States, 580 U.S. 5; 137 S.Ct. 352; 196 L.Ed.2d 242 (2016). Thus, with regard to defendant, there was no determination or final adjudication, let alone one that had preclusive effect, and the trial court did not err by denying defendant's motion premised on collateral estoppel.
The cases relied on by the defense dealt with the circumstance where the criminal defendant was a party in both the initial and subsequent actions. See Allen v McCurry, 449 U.S. 90; 101 S.Ct. 411; 66 L.Ed.2d 308 (1980); Ashe, 397 U.S. at 443; People v Wilson, 496 Mich. 91; 852 N.W.2d 134 (2014), abrogated on other grounds by Bravo-Fernandez v United States, 580 U.S. 5; 137 S.Ct. 352; 196 L.Ed.2d 242 (2016). That scenario is not the situation presented in this case. Instead, defendant is attempting to use a determination in a case he was not a party to and seeks to apply it to his own case.
In Higley's case, her motion for a new trial was granted on the basis that defendant's DNA was later identified on the meat thermometer.
B. BRADSHAW'S TESTIMONY
Defendant contends that the trial court erred when it allowed the admission of the portion of Bradshaw's testimony that she heard the victim tell defendant, "Please don't hit me." We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
To preserve an evidentiary issue for appellate review, a party must object at trial and specify the same ground for objection that he asserts on appeal. People v Douglas, 496 Mich. 557, 574; 852 N.W.2d 587 (2014). To the extent that defendant asserts on appeal that the trial court erred by admitting the evidence, the issue is not preserved because, as he acknowledges, there was no objection to the statement.
This Court reviews unpreserved issues, constitutional and nonconstitutional, for plain error affecting substantial rights. People v Hanks, 276 Mich.App. 91, 92; 740 N.W.2d 530 (2007). To prevail, a defendant must show that an error occurred, that the error was clear or obvious, and that the plain error affected a substantial right. Id. Preserved constitutional errors, such as whether defendant was denied the right to confrontation, are reviewed de novo. People v Fackelman, 489 Mich. 515, 524; 802 N.W.2d 552 (2011).
2. DISCUSSION
At trial, Bradshaw testified that the victim unexpectedly came to her and defendant's apartment, knocked on the door, and talked to defendant. Bradshaw noted that the victim was drunk, not wearing any shoes, and not wearing a coat, even though it was the middle of winter. According to Bradshaw, the first thing the victim said to defendant, after defendant opened the apartment door was, "Please don't hit me."
Defendant first argues on appeal that the victim's utterance was inadmissible hearsay. This position has no merit. Hearsay is defined as "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c) (emphasis added). And a "statement" is defined, in pertinent part, as "an oral or written assertion." MRE 801(a) (emphasis added). The victim's expression to defendant did not constitute a "statement" under MRE 801 and was not offered to prove the truth of the matter asserted. Further, it did not qualify as an assertion because it did not assert any verifiable fact. A statement that does not contain an assertion is not hearsay but represents a command. People v Bennett, 290 Mich.App. 465, 483; 802 N.W.2d 627 (2010); see also People v Jones (On Rehearing After Remand), 228 Mich.App. 191, 204-205; 579 N.W.2d 82 (1998), mod in part on other grounds by 458 Mich. 862 (1998); United States v Thomas, 451 F.3d 543, 548 (CA 8, 2006) ("Questions and commands generally are not intended as assertions, and therefore cannot constitute hearsay."). An assertion must be capable of being true or false, and commands are not. Jones, 228 Mich.App. at 204. Indeed, the victim's statement "Please don't hit me" represented a command. Consequently, the victim's comment to defendant was not inadmissible hearsay, and defendant's argument to the contrary is without merit.
Defendant also asserts that the victim's comment was inadmissible under MRE 403. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403. "Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury." People v Ortiz, 249 Mich.App. 297, 306; 642 N.W.2d 417 (2001) (quotation marks and citation omitted). Although defendant generally claims on appeal that the victim's statement was prejudicial, he does not explain how it was unfairly prejudicial. See People v Mills, 450 Mich. 61, 75; 537 N.W.2d 909 (1995), mod 450 Mich. 1212 (1995) (" 'Unfair prejudice' does not mean 'damaging.' ") (citations omitted). Indeed, all evidence is prejudicial to some party. Id. To the extent that the victim's comment leads to the inference that he feared being harmed by defendant, that fear certainly is relevant, see MRE 401 (defining relevant evidence as "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") (emphasis added), and not unfairly prejudicial, see Ortiz, 249 Mich.App. at 307-309; see also MRE 803(3).
Defendant next argues that the admission of Bradshaw's testimony denied him the right to confrontation because he could not cross-examine the victim. "The Confrontation Clause of the United States Constitution provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .'" Fackelman, 489 Mich. at 524-525, quoting U.S. Const, Am VI. The Confrontation Clause applies not only to in-court testimony but also to out-of-court statements introduced at trial. Crawford v Washington, 541 U.S. 36; 50-51; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004). However, only those statements that are "testimonial" are implicated by the Confrontation Clause. Davis v Washington, 547 U.S. 813, 821; 126 S.Ct. 2266; 165 L.Ed.2d 224 (2006); People v Walker (On Remand), 273 Mich.App. 56, 60; 728 N.W.2d 902 (2006).
Under Crawford, testimonial statements include "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52. The Davis Court similarly held that statements "are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis, 547 U.S. at 822. [People v Spangler, 285 Mich.App. 136, 154; 774 N.W.2d 702 (2009).]
In this instance, it is beyond dispute that the victim's comment to defendant, in defendant's doorway, with no authority figure present, was not made under any circumstances which would lead an objective witness to believe that the statement would be available for use at a later trial. Consequently, the victim's comment is not testimonial, and the right to confrontation therefore is not implicated. The introduction of the victim's comment through Bradshaw's testimony did not deny defendant a fair trial.
Moreover, assuming the admission of Bradshaw's testimony was erroneous for any reason, any error is harmless beyond a reasonable doubt. That is because defendant admitted to police officers that the victim said substantially the same thing to him. In defendant's interview with the police, which was played for the jury, he claimed that when the victim came over to his apartment, drunk and wearing no shoes, the victim was somewhat incoherently talking about cigarettes and added, "You aren't going to beat me up, are you?" As a result, assuming Bradshaw's testimony was erroneously admitted, the jury still would have heard from defendant that the victim said substantially the same thing. The admission of mere cumulative evidence is not prejudicial. People v Rodriquez (On Remand), 216 Mich.App. 329, 332; 549 N.W.2d 359 (1996). Under these circumstances, there clearly would be no harm from the admission of Bradshaw's testimony, and reversal would not be warranted.
Finally, defendant argues that his trial counsel provided ineffective assistance when he failed to object to Bradshaw's testimony regarding the victim's comment to defendant. However, as described above, the testimony was admissible, and "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010). Accordingly, defendant's claim of ineffective assistance necessarily fails.
C. RIGHT TO PRESENT A DEFENSE
Defendant submits that he was denied the right to present a defense when the trial court declined to admit into evidence a certified copy of Higley's conviction for the murder of the victim. We disagree.
Whether a defendant was denied his constitutional right to present a defense is a question of law that this Court reviews de novo. People v Aspy, 292 Mich.App. 36, 48; 808 N.W.2d 569 (2011). "A criminal defendant has a due process right to present a defense under the state and federal Constitutions." People v Solloway, 316 Mich.App. 174, 198; 891 N.W.2d 255 (2016). "But this right is not absolute: the accused must still comply with established rules of procedure and evidence designed to assume both fairness and reliability in the ascertainment of guilt and innocence." People v Yost, 278 Mich.App. 341, 379; 749 N.W.2d 753 (2008) (quotation marks and citation omitted). And under the rules of evidence, "the right to present a defense extends only to relevant and admissible evidence." Solloway, 316 Mich.App. at 198 (quotation marks and citation omitted).
In this case, defendant's primary theory at trial was that Higley was solely responsible for the murder of the victim. Defendant successfully introduced ample evidence that implicated Higley in the victim's murder. This evidence included her interviews with and statements to the police, her admission that she previously lied about when she last saw the victim, and her acknowledgment that after finding him dead on January 31, 2014, she deleted text messages from the victim's cell phone. Most pertinently, defendant also successfully offered into evidence, through the testimonies of Thorpe and Ross, Higley's express and implied confessions that she murdered the victim.
Defendant's claim of error fails for the simple reason that whether Higley was convicted of murdering the victim is not relevant. If the prosecution's theory was that only a single person was responsible for the murder, then that arguably would be a different matter. But the theory here is that both Higley and defendant were present and responsible for the victim's death. The prosecution did not focus on Higley's involvement in this trial because this trial addressed whether defendant was guilty of murder, not Higley. In any event, during closing and rebuttal, the prosecution nevertheless conceded that Higley was involved and averred that she and defendant acted together. Consequently, whether another jury found Higley guilty of murder simply is irrelevant to whether there is evidence to convict defendant for his actions. Contrary to defendant's suggestion, the former does not preclude the latter. Therefore, with Higley's actual conviction not being relevant, the trial court did not err by disallowing its admission. See MRE 402. Further, the failure to admit the irrelevant evidence did not deprive defendant of the right to present a defense. See Solloway, 316 Mich.App. at 198 ("[T]he right to present a defense extends only to relevant and admissible evidence.") (quotation marks and citation omitted). Notably, he was able to and did present much evidence of Higley's guilt and involvement. However, the jury simply did not believe defendant's theory that Higley acted alone.
Defendant's reliance on Holmes v South Carolina, 547 U.S. 319; 126 S.Ct. 1727' 164 L.Ed.2d 503 (2006), is misplaced. In Holmes, the United States Supreme Court rejected that assertion that evidence of third-party guilt may not be introduced if forensic evidence strongly supported a guilty verdict. Id. at 323-324, 329-330. Strong forensic evidence, if credited, did not necessarily equate with weak evidence of third-party guilt. Id. at 330. In the present case, the trial court did not exclude evidence of Higley's guilt. Rather, it merely limited the form of the evidence. It admitted Higley's contradictory statements as well as her admissions to her cellmates. It simply excluded the written judgment of Higley's conviction. Defendant failed to present any authority demonstrating the right to control the nature of the evidence of third-party guilt presented. This challenge is without merit.
D. JURY INSTRUCTION
Defendant next argues that he is entitled to a new trial because the trial court erred by failing to provide nonstandard criminal jury instruction 2.19, addressing Higley. We disagree.
"A party must object to or request a given jury instruction to preserve the error for review." People v Sabin (On Second Remand), 242 Mich.App. 656, 657; 620 N.W.2d 19 (2000). Although defendant objected to the instruction that was given, there is no record that he ever requested the instruction he claims should have been given. Additionally, defendant never asserted in the trial court that he was being denied any rights or a defense by the failure to provide this instruction related to Higley. Therefore, this issue is not preserved, and unpreserved issues are reviewed for plain error affecting defendant's substantial rights. Hanks, 276 Mich.App. at 92.
At trial, the trial court provided, in relevant part, the following nonstandard instruction:
The Prosecution has introduced evidence of exculpatory statements which it claims were made by the Defendant to the police and which it claims were false.
Such statements, if made, and if false, may be considered by you as circumstantial evidence as [sic] guilt.
This portion of the instruction mirrors nonstandard criminal jury instruction 2.19 except for the apparent error of "evidence as guilt" instead of "evidence of guilt." Mich. Non-Standard JI Crim 2.19.
Although defendant objected to this instruction in the trial court, on appeal, he does not challenge the appropriateness of it. Instead, defendant argues for the first time that the trial court erred by failing to provide a similar instruction pertaining to Higley. In other words, defendant claims that the court should have instructed the jury that it could consider Higley's false exculpatory statements to the police as substantive evidence of her guilt.
Assuming any error existed, it is not "plain," i.e., "clear or obvious." Id. With Higley's guilt not being before the jury, the instruction was not clearly warranted. As previously discussed, whether Higley was "guilty" did not preclude the jury from also finding defendant guilty because the prosecutor argued that both acted together in carrying out the murder. Accordingly, it was not a clear or obvious error to fail to provide the instruction. Furthermore, defendant cannot show how the failure to provide the instruction affected his substantial rights. Given that both the prosecutor and defense counsel had commented that Higley was responsible for the victim's murder, defendant has failed to show that the outcome of the trial would have been altered had the trial court provided the at-issue instruction.
E. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor engaged in several instances of misconduct requiring reversal. We disagree. Defendant did not preserve any aspect of this issue because he did not contemporaneously object to any of the alleged instances of misconduct. See Bennett, 290 Mich.App. at 475. Unpreserved issues are reviewed for plain error affecting defendant's substantial rights. People v Ackerman, 257 Mich.App. 434, 448-449; 669 N.W.2d 818 (2003).
The test for prosecutorial misconduct is whether the defendant was deprived of a fair trial. People v Orlewicz, 293 Mich.App. 96, 106; 809 N.W.2d 194 (2011). But because none of the instances are preserved, reversal is warranted only when a curative instruction would have been inadequate to remedy any defect. Ackerman, 257 Mich.App. at 449.
Defendant first claims that the prosecutor engaged in impermissible vouching by repeatedly using the phase "what we know" during her closing argument. We disagree.
"A prosecutor may not make a factual statement to the jury that is not supported by the evidence, but he or she is free to argue the evidence and all reasonable inferences arising from it as they relate to his or her theory of the case." People v Dobek, 274 Mich.App. 58, 66; 732 N.W.2d 546 (2007) (citations omitted). But in doing so, a prosecutor may not vouch for the credibility of witnesses by implying she has some special knowledge of the witnesses' truthfulness. People v Thomas, 260 Mich.App. 450, 455; 678 N.W.2d 631 (2004). Nor can a prosecutor place the prestige of her office behind the testimony of witnesses. People v McGhee, 268 Mich.App. 600, 633; 709 N.W.2d 595 (2005). However, a prosecutor can argue that a witness is credible, especially when "the question of guilt depends on which witnesses the jury believes." Thomas, 260 Mich.App. at 455. When evaluating allegations of prosecutorial misconduct, reviewing courts are to consider the remarks in context. Bennett, 290 Mich.App. at 475.
Viewing the prosecutor's comments in this case in context, the use of "we" did not reflect that the prosecutor was relying on her own "special knowledge." But more importantly, even if the prosecutor was including herself in her arguments about what she (and her group) "knows," the comments were predicated on what the evidence showed that "they" knew. The prosecutor's closing argument referenced some "stories" defendant told, claiming that "we know now [they] aren't true and we have witnesses to establish that." (Emphasis added.) Thus, the prosecutor's remarks show her view that defendant's statements were not credible because of the evidence, and not some special knowledge known to her. Accordingly, the comment did not run afoul of the prohibition against vouching.
The same can be said for the prosecutor's other comments as well. The prosecutor elsewhere asked the jury, "What do we know through the testimony[?]" (emphasis added), indicating reliance on the evidence and not personal knowledge. The prosecutor also stated:
What else do we know[?] We know though the statements of Judy Higley that [the victim] was concerned because he had gotten quote, "fucked over by him" end quote. So how do we give the story and this statement from Ms. Higley credibility[?] Well[,] through the Defendant's own witnesses. What do we know through the Defendant's own witnesses[?] [Emphasis added.]
It is clear again that the prosecutor here was arguing what she believed the evidence showed. This is all permissible, even though she used the word "we."
In her final statement to the jury, the prosecutor said:
The facts are the facts, ladies and gentlemen. Good or bad. The good, the bad, the ugly, the facts are the facts. So what do we know[?] We know that Robert Card had opportunity. We know that he had means. . . . We know that he got caught in lies and all of that, ladies and gentlemen, leads to murder. It leads to the murder of [the victim]. Listen to the law that [the judge] gives you. Apply that law to the facts. They're facts, ladies and gentlemen. They're evidence. It's not what the People believe. It's not what the police believe. It's not what the Defense believes. The facts prove Robert Card was directly involved in the murder of [the victim] and I would ask that you find him guilty. [Emphasis added.]
Again, although the prosecutor repeatedly used the "we know" syntax to convey what she thought the jury should believe, she stressed at the end that "[i]t's not what the People believe" and "[i]t's not what the police believe"; instead, it is what the evidence or facts prove.
Therefore, we discern no prosecutorial misconduct in relation to the purported vouching through the use of the "we know" language. Moreover, a curative instruction would have cured any prejudice, which precludes appellate relief. See Ackerman, 257 Mich.App. at 449. Additionally, the trial court instructed the jury that the lawyers' statements and arguments were not evidence, and it was the jury's role to weigh and judge the evidence. People v Loew, 340 Mich.App. 100, 127-128; 985 N.W.2d 255 (2022).
Defendant also argues that the prosecutor committed misconduct by repeatedly telling the jurors that their job was not to consider whether Higley was guilty. As previously discussed, this assertion does not constitute error. This trial was solely about whether defendant was guilty of murdering the victim. It is undisputed that he was the only one facing charges in this proceeding. The prosecutor's comments therefore were unequivocally correct and did not constitute error, reversible or otherwise. Nothing prevented defendant from arguing to the jury that Higley was solely responsible for the murder, and this is what he did. The jury simply did not agree.
Next, defendant claims that the prosecutor committed misconduct when she "deliberately injected into the trial evidence that the Defendant may have used cocaine as a way of damaging his character because it had nothing to do with the murder case." Defendant cites the prosecutor's questioning of Officer Ryan Mynsberge, where she asked him what he found during a search of defendant's apartment. The officer testified that he uncovered, among other things, a piece of Chore Boy that was found in the trash. Officer Mynsberge stated that although Chore Boy is a cleaning tool, it is known to be used in conjunction with smoking crack cocaine.
A prosecutor has the right to introduce evidence that he or she legitimately believes will be accepted by the trial court. People v Noble, 238 Mich.App. 647, 660-661; 608 N.W.2d 123 (1999). As a result, a claim of prosecutorial misconduct cannot be predicated on a good-faith effort to admit evidence. Dobek, 274 Mich.App. at 70; see also Noble, 238 Mich.App. at 661. Defendant has not offered anything to support the conclusion that the prosecutor did not act in good faith when introducing this evidence. Indeed, with other evidence admitted showing that the victim and defendant had a conversation about crack cocaine, cocaine is something that possibly linked the men together, which would be relevant for helping to explain things such as motive. In short, contrary to defendant's assertion, evidence of cocaine was not introduced to impugn defendant's character, and there was no prosecutorial error.
Finally, defendant submits that on the sixth day of trial, the prosecutor informed the jury that Higley had been tried already. He claims that this happened in the presence of the jury and that the jury, after hearing this, would reasonably conclude that Higley had been acquitted. Defendant's argument fails for the primary reason that the record clearly shows that the comment occurred while the jury was not present. The comment happened after the jury was "in recess" at 10:57 a.m. and before the jury returned at 11:19 a.m. In addition to the transcript denoting the times of the jury's exit and return, the trial court even mentioned that "[b]efore we bring the jury back," it wanted to discuss the quality of the video that they had been watching. It was at this point that the prosecutor mentioned how there had been video-quality issues from "Ms. Higley's trial" as well. Therefore, defendant's argument was not supported by the record and lacked merit.
III. ISSUES FROM STANDARD 4 BRIEF
A. SUBJECT-MATTER JURISDICTION
In his Standard 4 brief, defendant asserts that the trial court lacked subject-matter jurisdiction because of collateral estoppel. We disagree. Whether a trial court has subject-matter jurisdiction is a question of law that this Court reviews de novo. People v Washington, 508 Mich.App. 107, 121; 972 N.W.2d 767 (2021).
"The circuit court has jurisdiction over all felonies from the bindover from the district court unless otherwise provided by law." MCR 6.008(B). Defendant was bound over from the district for the charge of murder, which gave the circuit court jurisdiction. Further, as discussed earlier in this opinion, collateral estoppel is a doctrine of issue preclusion-it does not affect a court's jurisdiction. This challenge is without merit.
B. ADMISSIBILITY OF BRADSHAW'S TESTIMONY
Defendant submits that the trial court erred by admitting Bradshaw's testimony, in which she described the victim as coming over to their apartment and blurting out, "Please don't hit me." For the reasons already provided in Part II-B of this opinion, the comment was admissible.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that he was denied the effective assistance of counsel through his trial counsel's failure to object to the introduction of Higley's statements to the police. Defendant contends that Higley's statements prejudicially established that "there was an undercurrent of hostility" between the victim and defendant. We disagree.
Generally, claims of ineffective assistance of counsel involve a mixed question of law and fact. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). This Court reviews a trial court's factual findings for clear error, and any constitutional determinations are reviewed de novo. People v Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004). However, when no evidentiary hearing is held, this Court's review "is limited to mistakes apparent on the record." People v Riley (After Remand), 468 Mich. 135, 139; 659 N.W.2d 611 (2003).
Defendants have the guaranteed right to the effective assistance of counsel. Strickland v Washington, 466 U.S. 668, 686; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984); People v Aceval, 282 Mich.App. 379, 386; 764 N.W.2d 285 (2009). Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. LeBlanc, 465 Mich. at 578. Generally, to establish a claim of ineffective assistance, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Trakhtenberg, 493 Mich. at 51.
Defendant contends that counsel was ineffective for failing to object to the admission of Higley's statements, both written and video, because she was not subject to cross-examinationand the statements gave rise to a perceived hostility existing between defendant and the victim.
At the start of trial, outside the presence of defendant's jury, Higley appeared with counsel and exercised her right to remain silent.
Even if we assume, without deciding, that the admission of Higley's statements was erroneous, there was not a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Higley's statements, contrary to defendant's assertion, did not reflect "an undercurrent of hostility" between the victim and defendant. Higley's written statement reflected that defendant assisted the victim with bringing lumber into the home, and the victim rewarded defendant by providing him with marijuana and a beer. While Higley's statements also reflected potential conflict between defendant and the victim over cocaine use, the testimony at trial reflected that another individual supplied the victim with powder cocaine. Indeed, William Steele testified at trial that a few weeks before the victim died, Steele provided the victim with requested cocaine. There simply is not a reasonable probability that the outcome of the trial would have been any different had Higley's statement not been admitted into evidence particularly in light of defendant's DNA evidence on the meat thermometer.
Moreover, because defense counsel's primary strategy was to place all of the blame on Higley, an effective way was to get her statements, including her lies and other admissions, before the jury. Indeed, it was fairly important to show how Higley lied during her first interview, in which she said she did not enter the victim's home on January 31, by contrasting that interview with her second interview, in which she admitted to entering the victim's home, seeing him dead, deleting text messages from the victim's phone, and searching the premises for a joint and a beer before leaving.
D. DUE PROCESS
Defendant argues that his due-process rights were violated and that he is entitled to a new trial because the government failed to discover and disclose certain phone records. We disagree.
"This Court reviews unpreserved issues, constitutional and nonconstitutional, for plain error" affecting substantial rights. Hanks, 276 Mich.App. at 92. To prevail, a defendant must show that an error occurred, that the error was clear or obvious, and that the plain error affected a substantial right. Id.
"A criminal defendant has a due process right to obtain exculpatory evidence possessed by the prosecutor if it would raise a reasonable doubt about defendant's guilt." People v Cox, 268 Mich.App. 440, 448; 709 N.W.2d 152 (2005); see also Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963). In order to establish such a due-process violation, a defendant must prove that "(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." People v Chenault, 495 Mich. 142, 150; 845 N.W.2d 731 (2014). This applies to evidence within the government's control, even if it was unknown to the prosecution. Id. Evidence is favorable to the defense when it is either exculpatory or impeaching. Id., citing Giglio v United States, 405 U.S. 150, 154; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972). Evidence is "material" if, had the evidence been disclosed to the defense, there is a reasonable probability that the result of the proceeding would have been different. Chenault, 495 Mich. at 150. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quotation marks and citation omitted).
Defendant contends that the phone records from his service provider would show that he was not in the area of the victim's home at the time of the murder. His claim of a Brady violation fails for one simple reason: there is no evidence that the prosecution possessed, let alone suppressed, these phone records. Indeed, even in defendant's argument contained in his Standard 4 brief, he suggests that no phone records exist because the police failed to seek the information in a timely fashion. Accordingly, with no evidence that the government possessed these records, the Brady claim necessarily fails.
Defendant also suggests that his rights were violated by virtue of the government's failure to timely seek those phone records. This argument also fails. The government had no duty to seek out and discover these records any sooner. That is because, although exculpatory evidence needs to be disclosed, the duty does not extend to seeking out and finding exculpatory evidence. People v Sawyer, 222 Mich.App. 1, 5; 564 N.W.2d 62 (1997).
Additionally, the police attempted to independently verify defendant's whereabouts by investigating the pharmacy, financial institution, and party store that he reportedly visited.
Affirmed.