Opinion
350959 350961
09-23-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOHNNY CLYDE CROSBY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEREK MAUHAMAD CUNNINGHAM, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-001424-02-FC
Before: Cameron, P.J., and Jansen and Gleicher, JJ.
PER CURIAM
These consolidated appeals arise from a joint jury trial of defendants, Johnny Clyde Crosby and Derek Mauhamad Cunningham. Defendants were convicted of first-degree murder, MCL 750.316, conspiracy to commit first-degree murder, MCL 750.157a; MCL 750.316, witness bribing, intimidating, or interfering, MCL 750.122, and conspiracy to commit witness bribing, intimidating, or interfering, MCL 750.157a; MCL 750.122. Crosby was also convicted of being a felon in possession of a firearm (felon-in-possession), MCL 750.224f, and carrying a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b.
Defendants were sentenced to life imprisonment without parole for the first-degree murder and the related conspiracy convictions, and to 3 to 10 years' imprisonment for witness bribing, intimidating, or interfering and the related conspiracy conviction. Crosby was also sentenced to two to five years' imprisonment for felon-in-possession and to five years' imprisonment for felony-firearm. We affirm Crosby's convictions and sentences. We affirm Cunningham's convictions and sentences, but we vacate his judgment of sentence and remand with directions to enter an amended judgment of sentence setting a new due date for payment of his penalties, fees, and costs at or after the time the amended judgment of sentence is entered.
I. BACKGROUND
These appeals arise from the February 21, 2018 shooting death of the victim. In October 2016, the victim was robbed and assaulted and his motor vehicle was stolen. The victim identified Cunningham as one of the perpetrators, and a warrant was issued for Cunningham's arrest. In April 2017, Krystle Begley was with defendants at a home in Detroit, Michigan. At that time, Cunningham was "on the run." According to Begley, Cunningham instructed Crosby that he should not "do anything" to the victim until after Cunningham was "incarcerated." Begley clarified that Cunningham wanted Crosby to "get rid of [the victim] . . . [s]o that he [could not] testify against him" and so Cunningham could "have the perfect alibi." Begley testified that she was willing to participate in murdering the victim because of her romantic feelings for Cunningham.
For ease of reference, we will refer to this case as "the carjacking case."
Cunningham was arrested on February 14, 2018. The probable cause conference was scheduled for February 22, 2018, and the preliminary examination was scheduled for February 27, 2018. On February 21, 2018, Begley spoke to Crosby on the telephone. Crosby asked Begley if she was "ready to go." Begley picked up Crosby, who was in possession of a firearm, in her red-colored vehicle. Begley and Crosby traveled to the victim's home on Woodside Street in Detroit. Begley and Crosby saw the victim standing in the street, and Crosby got out of the vehicle and shot the victim. Crosby then got back in the vehicle, and Begley drove away. The victim died from multiple gunshot wounds. The criminal charges against Cunningham in the carjacking case were dismissed, and he was released from jail.
After the murder, it was discovered that Cunningham had made numerous telephone calls to a phone number associated with Begley while he was in jail. Several eyewitnesses told law enforcement that the shooter was a passenger in a red-colored vehicle. One of the eyewitnesses provided law enforcement with the last four numbers of the vehicle's license plate. The vehicle was tied to Begley, who was arrested and interviewed by Sergeant Marcus Ways on March 5, 2018. Begley denied that she had knowledge concerning defendants' involvement in the murder. After the interview, Begley made a telephone call to Cunningham "[t]o tell him what evidence [law enforcement] had on him." Begley also instructed Cunningham that he and Crosby needed to "run."
Begley was charged with multiple crimes, including first-degree murder. After her trial commenced, she entered into a plea agreement, whereby she agreed to plead guilty to accessory after the fact in exchange for a sentence of three to five years' imprisonment so long as she provided complete and truthful testimony about the victim's murder. Defendants were convicted and sentenced as described above. These appeals followed.
II. STANDARDS OF REVIEW
Defendants raise several claims of ineffective assistance of counsel. "The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). Because this Court denied defendants' motions to remand, our review is limited to mistakes apparent from the existing record. People v Muhammad, 326 Mich.App. 40, 63; 931 N.W.2d 20 (2018).
We review preserved claims of error regarding discretionary rulings for an abuse of that discretion, which include a trial court's decision to jointly try multiple defendants, People v Furline, 505 Mich. 16, 20; 949 N.W.2d 666 (2020), rulings regarding the admissibility of evidence, People v Burger, 331 Mich.App. 504, 510; 953 N.W.2d 424 (2020), and denial of a motion for a new trial, People v Miller, 482 Mich. 540, 544; 759 N.W.2d 850 (2008). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." Burger, 331 Mich.App. at 510 (quotation marks and citation omitted). Challenges to the sufficiency of the evidence are reviewed de novo on appeal, People v Bailey, 330 Mich.App. 41, 46; 944 N.W.2d 370 (2019), as are constitutional issues, People v Parrott, ___ Mich. App___, ___;___ N.W.2d___ (2021) (Docket No. 350380); slip op at 3, lv pending.
Unpreserved issues "are reviewed for plain error affecting substantial rights." People v Spaulding, 332 Mich.App. 638, 652; 957 N.W.2d 843 (2020).
To avoid forfeiture under the plain error rule three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3) the plain error affected substantial rights. Reversal is warranted only if the plain error resulted in the conviction of an innocent defendant or if the error seriously affected the fairness, integrity, or public reputation of judicial proceedings independent of the defendant's innocence. [Id. at 653 (quotation marks and citation omitted).]
III. CROSBY'S CLAIMS OF ERROR (DOCKET NO. 350959)
A. ASSISTANCE OF COUNSEL
Crosby first argues that he was denied effective assistance of counsel when his attorney decided to forgo an alibi defense and successfully moved to admit an exhibit that implied that Begley had passed a polygraph examination. We conclude that Crosby is not entitled to relief.
In order to obtain a new trial on the basis of ineffective assistance of counsel, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich. at 51. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Muhammad, 326 Mich.App. at 63 (quotation marks and citation omitted). The defendant must establish both requirements and the factual predicate for his or her claim. Id. A defendant who claims to have been denied the effective assistance of counsel bears a heavy burden to overcome the presumption of effective assistance, People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018), and sound trial strategy, People v Solloway, 316 Mich.App. 174, 188; 891 N.W.2d 255 (2016).
Crosby waived his argument that he was denied effective assistance of counsel because his counsel decided to forgo an alibi defense at trial. After the prosecution rested, Crosby's attorney stated that, although he had filed a notice of alibi before trial, they were "not going to raise that defense." Counsel indicated that the decision was made with Crosby's permission, and Crosby stated on the record that he agreed. Crosby also agreed to waive testimony from several witnesses. By explicitly agreeing to forgo the alibi defense, Crosby waived review of this issue. See People v Kowalski, 489 Mich. 488, 503; 803 N.W.2d 200 (2011). Crosby may not seek review of a waived error because waiver extinguishes the error. See id.
Crosby further argues that defense counsel was ineffective for moving to admit Defense Exhibit C, which is a memorandum regarding Begley's plea deal. In pertinent part, the memorandum states: "It is further our agreement that Krystle Begley will, upon request of the Wayne County Prosecutor's Office, submit to polygraph examinations regarding his [sic] statement." Crosby argues that there was no sound basis for admitting the memorandum because it allowed the jury to infer that Begley took and passed a polygraph examination. We disagree.
Notably, while discussing the admission of Defense Exhibit C, the prosecutor explained that she had spoken with Crosby's attorney about the polygraph reference and that they had agreed that any results could not be mentioned. The prosecutor also explained that a polygraph had been requested, but there was no indication that a polygraph examination had been conducted. The jury was not present when these statements were made. When the jury returned to the courtroom, Defense Exhibit C was admitted by stipulation without verbal reference to a polygraph examination.
Although references to taking or passing a polygraph examination are generally inadmissible, this Court has recognized that there may be circumstances when such a reference may be part of a legitimate defense strategy. See People v Nash, 244 Mich.App. 93, 97-98; 625 N.W.2d 87 (2000). It is apparent from the record that Crosby's counsel was aware of the polygraph reference in the memorandum. Therefore, counsel's decision to move for its admission was not a negligent oversight. Consistent with the presumption that defense counsel provided effective assistance, see Head, 323 Mich.App. at 539, we infer that defense counsel strategically determined that the value of introducing written evidence of the prosecution's deal with Begley outweighed the risk of an improper inference arising from the polygraph reference, see Solloway, 316 Mich.App. at 188.
Even if we concluded that defense counsel's decision was not a matter of reasonable trial strategy, Crosby is unable to establish a reasonable probability of a different outcome at trial but for counsel's performance. Although the written agreement was admitted as an exhibit, none of the attorneys discussed the polygraph reference in the presence of the jury. Additionally, it is unclear whether the jury was actually exposed to the polygraph reference because Defense Exhibit C was not published to the jury and there is no indication that the jury asked to view the exhibits. Because it was not discussed at trial, there is no reason to believe that the jury could infer that Begley took and passed a polygraph examination. Consequently, it is improbable that the outcome of the trial would have been different if the memorandum had not been admitted into evidence.
B. CROSBY'S STANDARD 4 BRIEF
In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Crosby raises additional issues.
1. MOTION TO SEVER
Crosby argues that he should not have been tried jointly with Cunningham and that his counsel was ineffective for failing to properly support the pretrial motion to sever. We disagree.
"Under MCR 6.121(C), the trial court 'must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.'" Furline, 505 Mich. at 20. In this case, Crosby argued in his pretrial motion to sever that he would be prejudiced by the admission of evidence regarding Cunningham's carjacking case and other evidence that was admissible only against Cunningham. However, Crosby's conclusory theory did not explain how defendants' respective defenses were mutually exclusive or how he would be prejudiced by a joint trial. Consequently, the trial court's decision to deny the motion to sever was within the range of principled outcomes. See id. at 20-21.
Moreover, a trial court's denial of a motion to sever is not a basis for reversal unless the requisite prejudice actually occurred at trial. Id. at 21. In this case, Cunningham attacked the credibility of the prosecution's witnesses and evidence, particularly the testimony offered by Begley. Crosby focused on Begley's acknowledged lies and her motive to cooperate with the prosecution's theory of the case and evidence that purportedly excluded Crosby as the shooter, such as the eyewitnesses' conflicting descriptions of the shooter, one witness's failure to identify Crosby during two lineups, and the failure of voice identification technology. Defendants presented consistent theories and therefore did not present a serious risk of prejudice to one another. Additionally, any prejudice from the evidence admitted against Cunningham is simply not a sufficient basis for severing a joint trial of multiple defendants charged with the same offenses. See People v Hana, 447 Mich. 325, 349; 524 N.W.2d 682 (1994), amended 447 Mich. 1203 (1994).
To the extent that Crosby argues that defense counsel should have relied on an alibi defense in support of the motion to sever, Crosby has failed to establish the factual predicate for his claim because the record does not support that defense counsel had the necessary information to pursue this theory. Indeed, Crosby's motion to sever was filed on May 8, 2019, but his alibi notice was not filed until July 15, 2019. There is no basis for this Court to conclude that counsel was aware of Crosby's alibi defense at the time he filed the motion and, accordingly, no basis for concluding that defense counsel performed unreasonably by failing to incorporate this theory in the motion to sever. Additionally, an alibi defense on behalf of Crosby would have been entirely compatible with Cunningham's defense, i.e., both theories relied on the premise that Begley was lying. If the jury believed the alibi defense, it could find Crosby not guilty without necessarily having to find Cunningham guilty. Because counsel was not required to raise a meritless argument, Crosby's ineffective assistance of counsel argument fails in this respect. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument . . . does not constitute ineffective assistance of counsel.").
2. SUFFICIENCY OF THE EVIDENCE
Crosby next argues that there was insufficient evidence to support his convictions for murder, for witness bribing, intimidating, or interfering, and for the related conspiracy convictions. "Evidence is sufficient if, when viewed in the light most favorable to the prosecution, a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt." Bailey, 330 Mich.App. at 46 (quotation marks and citation omitted). "This standard of review is deferential. We must draw all reasonable inferences and make credibility determinations in favor of the verdict." People v Evans, ___ Mich. App___, ___;___ N.W.2d___ (2020) (Docket No. 343544); slip op at 4.
It is undisputed that the victim died from multiple gunshot wounds shortly before he was to testify at Cunningham's February 2018 preliminary examination in the carjacking case. Begley testified that defendants had a conversation about that case in April 2017 and that Cunningham wanted to prevent the victim from testifying against him. Begley further testified that Cunningham indicated that Crosby should wait to murder the victim until Cunningham was incarcerated so that he would not be implicated. Begley also confirmed that she subsequently participated in the plan to murder the victim by acting as the getaway driver. According to Begley, Crosby called her on February 21, 2018, and asked if she was "ready." Begley understood this to mean that Crosby was asking if she was ready to drive Crosby to the victim's residence so that Crosby could kill the victim. Begley then drove Crosby to Woodside Street, where she observed Crosby shoot the victim multiple times.
Although Crosby notes that Begley acknowledged that she was not in the room when Cunningham made certain statements and that she did not hear Crosby agree to the plan, we conclude that a reasonable jury could infer from Begley's testimony about the plan and the manner in which it was executed that Crosby had agreed to kill the victim at Cunningham's behest to prevent the victim from testifying in the carjacking case. To the extent that Crosby argues that the jury should not have believed Begley's testimony, we do not second-guess jury determinations regarding the weight of the evidence or the credibility of the witnesses. People v Unger, 278 Mich.App. 210, 222; 749 N.W.2d 272 (2008). In this case, the jury clearly found Begley's testimony to be credible. Thus, we defer to the jury's determination that Begley's testimony was credible and find that the prosecution presented sufficient evidence to support Crosby's convictions. See Evans, ___ Mich.App. at ___; slip op at 4.
3. MOTION FOR A NEW TRIAL-GREAT WEIGHT OF THE EVIDENCE
In a related claim, Crosby argues that he should receive a new trial because the great weight of the evidence failed to show that he agreed to murder the victim or that he shot the victim. In evaluating whether a verdict is against the great weight of the evidence, the question is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. Unger, 278 Mich.App. at 232. "[A]bsent exceptional circumstances, issues of witness credibility are for the jury, and the trial court may not substitute its view of the credibility for the constitutionally guaranteed jury determination thereof." People v Lemmon, 456 Mich. 625, 642-643; 576 N.W.2d 129 (1998) (quotation marks and citation omitted).
As already discussed, the evidence supports that defendants agreed that Crosby would murder the victim after Cunningham was incarcerated and that Crosby shot and murdered the victim. Considering this testimony, the evidence does not preponderate so heavily against the jury's verdict that it would be a miscarriage of justice to allow the verdict to stand. See id. at 627. Crosby's great-weight argument is essentially an attack on the sufficiency of the evidence and an implication that Begley was not credible. However, it was up to the jury to assess the weight and reliability of the evidence, and there is no indication that the verdict could "be attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence." See People v DeLisle, 202 Mich.App. 658, 661; 509 N.W.2d 885 (1993) (quotation marks and citation omitted). Because the jury's verdict was not against the great weight of the evidence, Crosby is not entitled to a new trial.
4. ADMISSION OF EVIDENCE AND JURY INSTRUCTIONS
a. EVIDENCE CONCERNING THE CARJACKING CASE
Crosby next argues that the trial court improperly admitted evidence concerning the carjacking case, including statements that were made by the victim, and improperly failed to provide a limiting instruction to advise the jury that the victim's statements about the carjacking case were admissible only against Cunningham.
Evidence concerning the carjacking case had significant probative value because it made it more probable that defendants had a motive for murdering the victim, that defendants conspired to murder the victim, and that Crosby murdered the victim. See People v Smith, ___ Mich. App___, ___;___ N.W.2d___ (2021) (Docket No. 346044); slip op at 16 (noting that proof of motive in a murder case is always relevant). The evidence also provided context for Cunningham's relationship to the victim, which directly related to motive. Thus, the evidence did not amount to marginally probative evidence that risked creating unfair prejudice, and there is no indication that the evidence confused the jury or that the jury believed that Crosby was involved in the carjacking case. See People v Cameron, 291 Mich.App. 599, 611; 806 N.W.2d 371 (2011).
Additionally, the evidence was admissible against Crosby under the forfeiture-by-wrongdoing rule, MRE 804(b)(6). "To admit evidence under MRE 804(b)(6), the prosecution must show by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2) the wrongdoing was intended to procure the declarant's unavailability; and (3) the wrongdoing did procure the unavailability." People v Burns, 494 Mich. 104, 115; 832 N.W.2d 738 (2013). The first and third requirements are clearly satisfied in this case because there was evidence that Crosby shot the victim several times and that this wrongdoing resulted in the victim's death. See MRE 804(a)(4). Regarding the second requirement, the evidence supported that Crosby shot and murdered the victim so that the victim could not testify against Cunningham in the carjacking case. Because the evidence supports that Crosby successfully engaged in wrongdoing with the intent to procure the victim's unavailability, the victim's out-of-court statements were admissible against Crosby under MRE 804(b)(6). Accordingly, a limiting instruction was not necessary, and counsel was not ineffective for failing to request one. Crosby's confrontation argument also fails. See Burns, 494 Mich. at 111.
In so holding, we acknowledge that the trial court indicated at the beginning of trial that it would issue a limiting instruction and then did not do so.
To the extent that Crosby suggests that his right to due process was violated by certain testimony from the victim's father, not every claim of error is constitutional in nature and merely invoking due-process language is not sufficient to state a constitutional claim of error. See People v Blackmon, 280 Mich.App. 253, 261; 761 N.W.2d 172 (2008). By failing to offer more than a conclusory statement about his due-process rights, Crosby has abandoned this argument. Head, 323 Mich.App. at 546.
b. STATEMENTS MADE BY CUNNINGHAM IN APRIL 2017
Crosby argues that the trial court improperly admitted evidence concerning what Begley overheard Cunningham say concerning the carjacking case in April 2017. Crosby argues that, because there is no evidence that Cunningham made statements about getting "rid" of the victim to Crosby, the evidence concerning Cunningham's statements to an unknown person were inadmissible. Crosby repeatedly argues that Cunningham made the statements during a telephone conversation to an unknown individual. However, Begley did not testify at trial that Cunningham was on the phone when he talked about getting "rid" of the victim. Instead, Begley testified that defendants were in a room together when Cunningham made the statements, and we conclude that admission of Cunningham's statements was proper under MRE 804(b)(3). Consequently, Crosby's arguments concerning Begley's testimony about the statements made by Cunningham in April 2017 fail.
c. THE FEBRUARY 21, 2018 PHONE CALL
Crosby argues that a recording of a February 21, 2018 phone call between Begley and Cunningham was not admissible against Crosby because Crosby's voice was not identified on the call and it was irrelevant to the charges against him. We disagree.
Begley testified that while she and Crosby were in her vehicle near the victim's home, she received a telephone call from Cunningham. The call was played at trial. At the end of the call, which occurred minutes before the shooting, a second male voice can be heard. Sergeant Ways testified that he was unable to get independent verification that the second male voice on the call belonged to Crosby because the voice sample that he submitted with the call was of insufficient quality for analysis. Nonetheless, Begley listened to the call at trial and testified that the second male voice was Crosby. This was a sufficient basis to authenticate the call, and it was the jury's province to determine what weight to give the evidence. See Smith, ___ Mich.App. at ____; slip op at 13. While the content of the phone call was not transcribed in the written record, the prosecution's use of the evidence makes it clear that it was highly relevant because it placed Crosby with Begley near the crime scene. This made Crosby's identity as the shooter more probable and was therefore relevant and admissible. Therefore, Crosby's argument concerning admission of the February 21, 2018 call is without merit.
d. THE MARCH 5, 2018 PHONE CALL
Crosby next challenges the admissibility of Begley's March 5, 2018 phone call to Cunningham. During the phone call, Begley warned Crosby about the evidence that had been compiled by law enforcement and stated, "[Y]ou two need to take [the dog] and run." Although Begley did not use Crosby's name during the call, she testified at trial that she was referring to Crosby. Crosby argues that the trial court abused its discretion by ruling that the statements in Begley's postarrest phone call were admissible under MRE 801(d)(2)(E).
A defendant's statements made after arrest may not be admitted against a coconspirator under MRE 801(d)(2)(E) because such statements do not further the conspiracy. People v Cadle, 204 Mich.App. 646, 653; 516 N.W.2d 520 (1994), overruled in part on other grounds by People v Perry, 460 Mich. 55; 594 N.W.2d 477 (1999). We therefore agree that the recording of Begley's March 5, 2018 phone call to Cunningham was inadmissible under MRE 801(d)(2)(E).
Nonetheless, a trial court's error does not require reversal when "the trial court reaches the right result for the wrong reason." People v Moorman, 331 Mich.App. 481, 490; 952 N.W.2d 597 (2020). A statement is not hearsay if it is a statement "by the party's co-conspirator during and in furtherance of the conspiracy." MRE 801(d)(2)(E). But there are several other reasons that an out-of-court statement might not run afoul of the general rule against hearsay. For instance, "[i]f . . . the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement, by definition, is not hearsay." People v Musser, 494 Mich. 337, 350; 835 N.W.2d 319 (2013). In this case, the prosecution did not introduce Begley's statements to prove the truth of the statements she made in furtherance of the conspiracy, but rather to show Cunningham's reaction to Begley's claims that the police knew everything. "An out-of-court statement introduced to show its effect on a listener . . . does not constitute hearsay under MRE 801(c)." People v Gaines, 306 Mich.App. 289, 306-307; 856 N.W.2d 222 (2014). MRE 801(d)(2)(E) is therefore not applicable. The trial court's error regarding this issue was therefore harmless.
e. ADMISSION OF CELL PHONE RECORDS
Crosby next challenges the admissibility of the cell phone records for the phone number 248-688-4251 (the 248 phone number) and Officer Melanie Weathers's testimony regarding the same. According to Crosby, this evidence should not have been admitted because the phone number was registered to "Lemon Head" and it had no reliable connection to Crosby. We disagree. Authentication of an exhibit requires only "a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be." Smith, ___ Mich.App. at___; slip op at 13 (quotation marks and citation omitted). Although the 248 phone number was not registered in Crosby's name, Officer Weathers testified that subscriber information is sometimes inaccurate and Begley indicated that she communicated with Crosby at the 248 number. Any remaining question as to the reliability of Begley's testimony that the phone number was associated with Crosby was a question of fact for determination by the jury. See id. at___; slip op at 13. Therefore, the trial court did not abuse its discretion by admitting the records.
f. CUMULATIVE ERROR
Crosby next argues that he was denied a fair trial by the cumulative effect of the foregoing evidence. "To warrant reversal based on cumulative error, the effect of the errors must have been seriously prejudicial," People v Schrauben, 314 Mich.App. 181, 193; 886 N.W.2d 173 (2016), and "only actual errors are aggregated to determine their cumulative effect," People v Bahoda, 448 Mich. 261, 292 n 64; 531 N.W.2d 659 (1995). Because Crosby has identified only one actual error, which was itself harmless, he cannot establish a meritorious cumulative-error claim. See People v Eisen, 296 Mich.App. 326, 335; 820 N.W.2d 229 (2012).
5. IDENTIFICATION EVIDENCE
Crosby next argues that evidence of Begley's pretrial identification of him should have been precluded because of the unduly suggestive procedures employed by law enforcement. We disagree. Crosby did not preserve this issue for review by objecting to the identification testimony at trial. People v Posey, ___ Mich. App___, ___;___ N.W.2d___ (2020) (Docket Nos. 345491, 351834, 346039); slip op at 3, lv pending. Therefore, we review for plain error affecting substantial rights. See id. at ___; slip op at 3.
"Exclusion of evidence of an identification is required when (1) the identification procedure was suggestive, (2) the suggestive nature of the procedure was unnecessary, and (3) the identification was unreliable." People v Sammons, 505 Mich. 31, 41; 949 N.W.2d 36 (2020). Whether a pretrial identification procedure is unduly suggestive depends on the totality of the circumstances. Posey, ___ Mich.App. at ___; slip op at 3. In this case, the police showed Begley a single photograph of Crosby. Begley confirmed that Crosby was the person she knew as "Wick" and that he was the person she drove to the crime scene on the day of the shooting. When a witness is only shown one photograph, it is considered suggestive. Posey, ___ Mich.App. at____; slip op at 3. However, in this case, there is no indication that "improper police conduct created a substantial likelihood of misidentification." Sammons, 505 Mich. at 49 (quotation marks and citation omitted). Indeed, testimony supported that Cunningham introduced Begley to Crosby months before the shooting. In light of Begley's familiarity with Crosby, we conclude that Begley's pretrial identification of Crosby was sufficiently reliable to outweigh the prejudicial effect of the suggestive procedure employed by the police. See id. at 51. To the extent that Begley's credibility was in question, it was up to the jury to determine whether Begley's identification of Crosby was worthy of belief. Therefore, we conclude that the admission of Begley's identification testimony was not plainly erroneous.
6. MOTION FOR A NEW TRIAL-NEWLY DISCOVERED EVIDENCE
Crosby next argues that the trial court abused its discretion by denying his motion for a new trial on the basis of newly discovered evidence. We disagree. Crosby cited as new evidence a text message that an eyewitness, who was also the victim's ex-girlfriend, sent to Sergeant Ways after Crosby's conviction. The message said:
Hi Sargent [sic]! Thank you for informing me on the outcome, however where as the family is tired & seeking relief due to yesterday's verdict..i am not relieved & will never sleep peacefully until someone who at least resemble[s] theguy that I seen [sic] walk up that day & kill [the victim]. I don't believe it was the guy that was on the stand facing those charges however i get it he was affiliated. Honestly i can't say he deserves to go down for the shooter's actions. I know my testimony may have seemed sketchy but @ the end of the day i can almost say 100 percent that, that guy was not the shooter! Then again maybe he had a real good make-up artist who made him appear darker. Smh . . . feel like you all should have pressed that white girl more about who exactly she chose to drive there to carry out such a heinous crime when she got her plea deal.
A trial court may grant a new trial on the basis of newly discovered evidence if the defendant demonstrates that "(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial." People v Cress, 468 Mich. 678, 692; 664 N.W.2d 174 (2003) (quotation marks and citations omitted).
We conclude that Crosby failed to establish the fourth requirement. The eyewitness's description of the shooter at trial did not closely match Crosby's physical appearance. Testimony was also presented that the eyewitness had viewed two separate lineups and did not identify Crosby on either occasion. Thus, it was clear to the jury that the eyewitness did not identify Crosby, thereby suggesting that she did not believe that Crosby was the shooter. To the extent that the jury would have inferred from the text message that the eyewitness knew additional facts about the case from other sources, it is unlikely that such information would have affected the verdict. The decisive issue in this case was whether the jury believed Begley's testimony about the plan to kill the victim and the subsequent execution of the conspiracy. Whether the eyewitness had additional information about the case has no impact on that question. We therefore conclude that the trial court did not abuse its discretion by denying Crosby's motion for a new trial. Likewise, because the extent of the eyewitness's alleged knowledge about the case would not affect the outcome, an evidentiary hearing regarding this matter was unnecessary.
7. PERJURED TESTIMONY
Finally, Crosby argues that the prosecution deprived him of a fair trial by relying on perjured testimony. We disagree. "It is well settled that a conviction obtained through the knowing use of perjured testimony offends a defendant's due process protections guaranteed under the Fourteenth Amendment." People v Aceval, 282 Mich.App. 379, 389; 764 N.W.2d 285 (2009). "[T]he prosecution has an affirmative duty to correct false testimony[.]" People v Smith, 498 Mich. 466, 476; 870 N.W.2d 299 (2015). "[W]hile not every contradiction is material and the prosecutor need not correct every instance of mistaken or inaccurate testimony, it is the effect of a prosecutor's failure to correct false testimony that is the crucial inquiry for due process purposes." Id. (quotation marks and citations omitted).
Crosby argues that the prosecutor allowed Begley to lie on the stand. To support this argument, Crosby highlights inconsistencies in Begley's various statements to law enforcement and in these proceedings. However, these inconsistencies do not necessarily mean that Begley's trial testimony was false. The fact that Begley agreed that she told "a million and one lies" during the investigation makes it clear that any lies that she told were in her previous statements-not her trial testimony. Moreover, because the jury was aware that Begley lied during the investigation, the jury had the necessary information to assess the credibility of her testimony. Additionally, to the extent that Crosby is correct that Begley's testimony that Crosby called her on the day of the shooting was contradicted by record evidence, we fail to see how this is material. See Smith, 498 Mich. at 476.
To the extent that Crosby relies on statements that Begley made during her own trial, those statements were not admitted in defendants' trial and are not part of the record on appeal. Therefore, we will not consider them. See People v Morrison, 328 Mich.App. 647, 655; 939 N.W.2d 728 (2019) ("[T]o consider evidence presented on appeal that the parties failed to present to the trial court would be an impermissible expansion of the lower-court record.").
Crosby also argues that Sergeant Ways falsely testified at defendants' trial because he testified that he had been to the crime scene. According to Crosby, Sergeant Ways testified at proceedings relating to Begley that he had not been to the crime scene. However, there is no record evidence as to how Sergeant Ways previously testified in other proceedings. Consequently, this argument lacks factual merit. Crosby also argues that Sergeant Ways included false information in a search warrant affidavit. However, this argument is unrelated to Sergeant Ways's trial testimony, and the prosecution's duty to correct is not implicated.
Lastly, Crosby argues that one of the eyewitnesses "was angry that [a police officer] wrote things into her statements that she not only didn't say, but that she told him with specificity that she didn't see, i.e. a hoodie." However, this alleged error in the police report does not involve a matter of false testimony. Indeed, this eyewitness consistently testified that the shooter was wearing a skull cap and a zip-up jacket-not a hoodie. The eyewitness was also clear that she did not tell any police officer that the shooter was wearing a hoodie. Because Crosby has not identified any false testimony, the prosecution's duty to correct the same is not implicated. Therefore, Crosby is not entitled to relief.
C. REQUEST FOR REMAND
Crosby alternatively requests a remand for a Ginther hearing. This Court denied Crosby's earlier motion to remand, and Crosby has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective. Therefore, we again deny Crosby's request for a remand. MCR 7.211(C)(1)(a).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
People v Crosby, unpublished order of the Court of Appeals, entered December 10, 2020 (Docket No. 350959).
IV. CUNNINGHAM'S CLAIMS OF ERROR (DOCKET NO. 350961)
A. CELL PHONE EVIDENCE
1. RIGHT TO CONFRONTATION
Cunningham first argues that admission of the cell phone records obtained from T-Mobile and Sprint violated his right to confrontation in the absence of testimony from the respective record keepers. The Sixth Amendment of the United States Constitution guarantees to a criminal defendant the "right . . . to be confronted with the witnesses against him." U.S. Const, Am VI; Crawford v Washington, 541 U.S. 36, 42; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004). The Crawford Court held that the Confrontation Clause does not permit the admission of out-of-court statements when the statements are "testimonial" unless the defendant has had a prior opportunity for cross-examination and the declarant is unavailable to testify. Id. at 59.
We have serious doubts as to whether Cunningham has standing to challenge the authenticity of the phone records of other individuals.
We conclude that defense counsel's decision to acquiesce to the admission of the records waived Cunningham's right to confrontation. When the prosecutor sought to admit the records, Cunningham's counsel specifically stated "No objection." By doing so, counsel communicated to the trial court that he did not object to the admission of the records and therefore voluntarily and intentionally relinquished the right to contest admission of the evidence. See Kowalski, 489 Mich. at 505 (holding that an issue was waived-as opposed to merely forfeited-as a result of counsel's express indication that she did not object to the jury instructions provided by the trial court).
Indeed, in Melendez-Diaz v Massachusetts, the United States Supreme Court acknowledged that "[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections." Melendez-Diaz v Massachusetts, 557 U.S. 305, 313 n 3; 129 S.Ct. 2527; 174 L.Ed.2d 314 (2009). Our Supreme Court in People v Buie, 491 Mich. 294, 297; 817 N.W.2d 33 (2012), considered whether a defendant waived his right of confrontation by not objecting to the admissibility of witness testimony taken by interactive video. The Buie Court stated, "There is no doubt that the right of confrontation may be waived and that waiver may be accomplished by counsel." Id. at 306. The Buie Court further observed that most courts that have considered the issue "have concluded that the right of confrontation may be waived, and that the waiver may be effected by counsel, as long as counsel's decision constitutes reasonable trial strategy and the defendant does not object to the waiver." Id. at 310.
By acquiescing to the admission of the records, defense counsel relieved the prosecutor from calling the record keepers as witnesses to authenticate the records. Additionally, there is no indication in the record that it would have been impossible for the prosecutor to take additional steps to secure their appearance at trial. However, it is plausible that defense counsel believed that the records were not reasonably subject to challenge and that there would have been no advantage to defense counsel requiring the record keepers to testify. Because the custodians were not called to testify concerning the authenticity of the phone records, counsel was able to emphasize that the records did not support that the 248 number was associated with Crosby. Additionally, testimony that the records concerning the number associated with Begley were authentic would have further bolstered Begley's testimony. Consequently, the defense was able to portray an air of confidence before the jury while simultaneously minimizing the records. Moreover, at no point did Cunningham object on the record or otherwise indicate his disagreement with defense counsel's decision to acquiesce to the admission of the records into evidence. Therefore, we conclude that Cunningham, through the actions of counsel, waived his Sixth Amendment right to confrontation as it related to the records. Cunningham is therefore not entitled to relief in relation to this argument.
Even if Cunningham had privately expressed dissatisfaction off the record, this would not have been sufficient to prevent or override counsel's waiver of his right to confrontation because "any objection a defendant may have must be made on the record." See Buie, 491 Mich. at 311.
A defendant who waives his or her Sixth Amendment right to confrontation through the actions of counsel may still seek relief by establishing that his or her counsel rendered constitutionally ineffective assistance. See Buie, 491 Mich. at 315 n 13. In this case, defense counsel was not ineffective. As already discussed, defense counsel's acquiescence relieved the record keepers from testifying before the jury about the records. By deciding to acquiesce to the admission of the records, defense counsel was able to minimize the reliability of the records concerning the 248 number and was able to downplay the fact that the records concerning the phone number associated with Begley supported her testimony. Testimony from the record keepers would have further bolstered Begley's credibility and undermined Cunningham's defense. Counsel's decision to not require the testimony of the record keepers was therefore reasonable trial strategy, and Cunningham has failed to overcome the presumption that counsel's failure to object to the admission of the records fell below an objective standard of reasonableness under prevailing professional norms. See People v McFarlane, 325 Mich.App. 507, 528; 926 N.W.2d 339 (2018) (holding that ineffective assistance of counsel does not exist where defense counsel did not object to damaging evidence, but "there was a plausible and legitimate strategic reason for defense counsel's decision not to object").
2. OFFICER WEATHERS'S TESTIMONY
Next, Cunningham argues that Officer Weathers used a flawed method of analyzing the cell phone records. Specifically, Cunningham contends that Officer Weathers's reliance on the "pie wedge" tower mapping methodology was inadmissible because experts have recognized that it employs incorrect assumptions about cell tower coverage and can lead to unreliable results concerning a phone's location. Because Cunningham failed to object to Officer Weathers's testimony on the basis of reliability, this issue is unpreserved.
"Generally, expert testimony is not admissible unless the trial court first determines that the expert's theories, methodology, and underlying data are reliable under MRE 702[.]" Spaulding, 332 Mich.App. at 658. "The inquiry into reliability is a flexible one that is tied to the facts of the particular case, and a reliability determination may differ on the basis of the type of expert testimony offered." People v Carll, 322 Mich.App. 690, 700-701; 915 N.W.2d 387 (2018). "The trial court is not tasked with determining whether the proposed expert's evidence is true or universally accepted." Spaulding, 322 Mich.App. at 658. Instead, the goal is to ensure that an expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." People v Kowalski, 492 Mich. 106, 120; 821 N.W.2d 14 (2012) (quotation marks and citation omitted).
This Court cannot conduct an informed analysis of this issue because the reliability of Officer Weathers's methodology was not explored at trial and, rather than citing to record evidence on appeal, Cunningham relies on an affidavit from Spencer McInvaille, a proposed expert in cellular location analysis. However, this affidavit was not presented to the trial court and therefore cannot be considered on appeal. See People v Morrison, 328 Mich.App. 647, 655; 939 N.W.2d 728 (2019). Without taking Cunningham's offer of proof into account, there is no basis for this Court to conclude that the admission of Officer Weathers's testimony amounted to plain error.
Even if we were to take the affidavit into account, we would conclude that Cunningham is unable to establish the requisite plain error. McInvaille's criticism of Officer Weathers's methods is not dispositive because an expert's methodology need not be universally accepted in order to be sufficiently reliable for admission. Spaulding, 332 Mich.App. at 658.
Cunningham alternatively argues that his attorney was ineffective for failing to challenge Officer Weathers's testimony and by failing to obtain an expert to testify about Officer Weathers's flawed "methodology, testimony, and exhibits." However, the record does not support Cunningham's assertion that Officer Weathers's methods have been discredited, even if they are subject to scrutiny in the relevant scientific field. Although there is no reason to declare Officer Weathers's methods unreliable, the flaws recognized by Cunningham, McInvaille, and certain other courts undoubtedly call the weight of the expert testimony in this case into question. These flaws were ripe topics for cross-examination, such that defense counsel's decision to entirely refrain from cross-examination of Officer Weathers is highly suspect and could lead to a reasonable inference that defense counsel may not have conducted a reasonable investigation into the reliability of the expert testimony in this case. Nonetheless, assuming without deciding that defense counsel's performance fell below an objective standard of reasonableness in this regard, it is improbable that a different result would have been reached but for this deficiency. The key issue in this case was whether the jurors found Begley to be credible, and the verdict demonstrates that they did. Moreover, even though Cunningham's attorney did not challenge the expert testimony in any way, Crosby's attorney cross-examined Officer Weathers and elicited testimony about many of the flaws that Cunningham now cites on appeal. Consequently, the jury was not left with entirely unrebutted expert testimony and the jury could reasonably assess the weight that it should afford Officer Weathers's testimony.
Cunningham next argues that Officer Weathers exceeded the scope of her expertise when she testified about cellular network technology. Before a witness is permitted to testify as an expert, the trial court must determine that the witness is qualified in the relevant field by knowledge, skill, experience, training, or education. People v McKewen, 326 Mich.App. 342, 349; 926 N.W.2d 888 (2018), citing to MRE 702. This Court addressed a similar challenge to the scope of an expert's qualifications in People v Yost, 278 Mich.App. 341; 749 N.W.2d 753 (2008). In Yost, the expert-the medical examiner who performed an autopsy on the victim's body-ruled out suicide as a manner of death. Id. at 392-393. The expert indicated (1) that "he was not aware of any forensic pathologist classifying the death of a [seven-year-old] child . . . as a suicide" and (2) that "children of that age do not have the mental maturity to commit suicide." Id. at 393. On appeal, the defendant argued that the expert was not qualified to offer an opinion about a child's mental maturity to commit suicide. Id. at 392. This Court disagreed, noting that, as a medical examiner, the witness "routinely investigate[d] and determine[d] whether the manner of death for a particular person was suicide." Id. at 395. Additionally, the witness's training as a medical doctor included a basic understanding of brain development, even if the witness's status as a medical doctor did not render him an expert on the development of the human brain. Id. "Thus, [the expert] was minimally qualified by both experience and training for purposes of MRE 702 to offer an opinion about whether children of [the victim's] age commit suicide." Id. "[A]ny limitations in [the expert's] experience and training were properly a matter of weight rather than admissibility." Id.
Likewise, in this case, the parties stipulated that Officer Weathers was an expert in forensic analysis of cellular call detail records and tower mapping. Officer Weathers had been performing such analyses for 2½ years and was routinely qualified as an expert. Although the record is silent as to the details of her training and experience in that field, this Court can reasonably presume from the parties' stipulation to Officer Weathers's expertise that her knowledge, education, or training was sufficient to qualify her as an expert. In order to fully understand the implications of historical call detail records and the mapping technology that she used, Officer Weathers necessarily would have had to have acquired at least a minimal understanding of cell tower technology and the manner in which cell phones interact with those towers. The technology involved was not so far removed from the scope of Officer Weathers's expertise as to render the testimony inadmissible. Id. at 394. Instead, the slight deviation between her field of expertise and the subject of the technology testimony went to the weight of the evidence, as opposed its admissibility. See id. at 395. Admission of the technology testimony was not plain error, and defense counsel was not ineffective for failing to raise a meritless objection. See Head, 323 Mich.App. at 539.
4. ADMISSION OF EVIDENCE
Cunningham next argues that exhibits concerning the 248 number were improperly admitted without a sufficient foundation because the phone number was registered to "Lemon Head," not Crosby. Authentication of an exhibit requires only "a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be." Smith, ___Mich App at___; slip op at 13 (quotation marks and citation omitted). Upon such a showing, the evidence should be submitted to the jury to decide "whether the evidence is reliable and what weight to give the evidence, if any." Id. Begley testified that she communicated with Crosby at the 248 phone number, and Officer Weathers indicated that she routinely encountered inaccurate subscriber information in her job. This testimony provided a sufficient basis for a reasonable juror to conclude that Crosby used the phone number, even though it was registered to a different name.
Cunningham also argues that the exhibits placing Crosby's name next to the 248 phone number should have been excluded because they were misleading. This argument is unpersuasive because Officer Weathers and the prosecutor almost uniformly referred to the phone number as being "associated with" Crosby, without typically using a similar qualification for Begley's phone records. The careful language used by both the prosecutor and the witness with respect to this issue made it clear that the 248 phone number had not been definitively tied to Crosby. The risk of misleading the jury was therefore slight and the evidence need not have been excluded under MRE 403. Cunningham's related suggestion that defense counsel was ineffective with respect to this issue lacks merit because an attorney is not obligated to raise futile objections. See Head, 323 Mich.App. at 539.
B. ASSISTANCE OF COUNSEL
Next, Cunningham argues that he was denied the effective assistance of counsel when his attorney failed to impeach the victim's father with certain statements that he made on his YouTube program. We disagree.
The victim's father had a real estate business. He testified that the victim assisted him by showing properties to prospective tenants and collecting rent on occasion. On cross-examination, the victim's father agreed that he had posted videos on YouTube using the name "The Shea Show" and that he had described his real estate work as dangerous. Importantly, the victim's father confirmed that it could be a "rough" job. Thus, Cunningham's attorney was aware that the victim's father had spoken on "The Shea Show" about the dangers of his work and counsel explored that issue in his cross-examination. Although defense counsel did not specifically question the victim's father about the video that Cunningham references on appeal, Cunningham cannot establish that defense counsel's failure to do so was objectively unreasonable.
Cunningham's claim of error also fails under the second prong of the test for ineffective assistance of counsel. Even if defense counsel had presented evidence of a vague threat that a former tenant had made against the victim, Begley testified that defendants conspired to kill the victim in order to prevent him from testifying against Cunningham in the carjacking case. The jury clearly found Begley to be credible despite her role in the conspiracy and her history of lying throughout the police investigation. It is improbable that the jury would have reached a different result but for defense counsel's failure to specifically question the victim's father about the video.
C. PROSECUTORIAL MISCONDUCT
Cunningham next argues that the prosecutor erred by questioning Begley about her lack of prior criminal convictions for the purpose of bolstering her credibility. Because defense counsel did not object to the prosecutor's questions and request a curative instruction, the issue is unpreserved. Unger, 278 Mich.App. at 235. We therefore review for plain error affecting substantial rights.
"A prosecutor has committed misconduct if the prosecutor abandoned his or her responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial." People v Lane, 308 Mich.App. 38, 62; 862 N.W.2d 446 (2014). "A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant's guilt or innocence." People v Dobek, 274 Mich.App. 58, 63-64; 732 N.W.2d 546 (2007). "Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64.
While we agree that the prosecutor's questions about Begley's lack of prior criminal history were plainly erroneous because "[e]vidence of the lack of a criminal record is not admissible to prove the honesty or bolster the credibility of a witness," see People v Griffin, 235 Mich.App. 27, 46; 597 N.W.2d 176 (1999), overruled in part on other grounds by People v Thompson, 477 Mich. 146 (2007), we conclude that Cunningham has not established that this error affected his substantial rights. Indeed, any bolstering effect that the prosecutor's inquiries had on Begley's credibility was severely diminished by Begley's admission that she willingly participated in a conspiracy to commit murder. The jury was also well aware of Begley's credibility issues and motivation to lie. Moreover, given the evidence in this case, there is no basis to conclude that the prosecutor's questioning resulted in the conviction of an actually innocent defendant or that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Consequently, Cunningham is not entitled to relief under plain-error review. Additionally, we conclude that Cunningham's related ineffective assistance claim is without merit given that there is no indication that a different result would have been probable but for counsel's performance. See Trakhtenberg, 493 Mich. at 51.
D. RIGHT TO CONFRONTATION
Cunningham argues that admission of the victim's statements about the carjacking case violated his right to confrontation because the forfeiture-by-wrongdoing rule is offense specific. Because Cunningham's objection before the trial court was not made on the same ground that he advances on appeal, the issue is unpreserved. See People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019) ("To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that [he or she] asserts on appeal.").
MRE 804(b)(6) provides that if a declarant is unavailable, certain evidence is not excluded by the rule against hearsay, including "[a] statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." This evidentiary rule is "a codification of the common-law equitable doctrine of forfeiture by wrongdoing, and [u]nder the doctrine, a defendant forfeits his or her constitutional right of confrontation if a witness's absence results from wrongdoing procured by the defendant[.]" People v McDade, 301 Mich.App. 343, 354; 836 N.W.2d 266 (2013) (quotation marks and citation omitted; alterations in original). The plain language of MRE 804(b)(6) does not limit admissible evidence to certain offenses or subject matter; it only requires that the defendant intentionally procured "the unavailability of the declarant as a witness." (Emphasis added.) Moreover, the historical underpinnings of the confrontation exception focus on whether the defendant intends to make the witness unavailable, not the subject matter of the out-of-court, unconfronted statement. See Giles v California, 554 U.S. 353; 128 S.Ct. 2678; 171 L.Ed.2d 488 (2008). See also McDade, 301 Mich.App. at 354 (discussing intent requirement).
In urging this Court to read a conspicuously absent subject-matter requirement into MRE 804(b)(6), Cunningham directs this Court's attention to several cases which discuss the unavailable witness's statements related to the offense or offenses for which the defendant was on trial. See People v Caddell, 332 Mich.App. 27; 955 N.W.2d 288 (2020) (statements about murder in trial for murder and other offenses); People v Jones, 270 Mich.App. 208; 714 N.W.2d 362 (2006) (statements about assault in trial for assault with intent to murder and other offenses); McDade, 301 Mich.App. 343 (2013) (statements about shooting in trial for murder and other offenses). These cases are unpersuasive because none of the opinions actually address the issue at hand. Additionally, Cunningham ignores the fact that the Supreme Court has previously considered application of the forfeiture-by-wrongdoing rule in a context analogous to the circumstances in this case. Giles, 554 U.S. at 356-357, 377 (addressing victim's statements about the defendant's domestic violence in murder prosecution).
We further note that other jurisdictions considering the same argument have easily rejected a subject-matter limitation as inconsistent with the purpose of the forfeiture-by-wrongdoing rule.See United States v Dhinsa, 243 F.3d 635, 652-653 (CA 2, 2001); United States v Emery, 186 F.3d 921, 926 (CA 8, 1999). As succinctly stated by one federal court, the forfeiture-by-wrongdoing rule "applies not only in the original cases for which the declarant was an actual or potential witness, but also in any prosecution pertaining to the wrongful procurement of the witness's unavailability." United States v Johnson, 495 F.3d 951, 970 (CA 8, 2007). While not bound to do so, we choose to follow the same rationale and conclude that the victim's statements about the carjacking were admissible in this case under MRE 804(b)(6).
The common-law rule is codified in the federal rules in FRE 804(b)(6), which permits admission of "[a] statement offered against a party that wrongfully caused-or acquiesced in wrongfully causing-the declarant's unavailability as a witness, and did so intending that result." This Court has previously described MRE 804(b)(6) and its federal counterpart as "nearly identical." Jones, 270 Mich.App. at 212.
E. CHARGES IN THE CARJACKING CASE
Cunningham next takes issue with Sergeant Robert Wellman's testimony about the charges against him in the carjacking case. Cunningham did not preserve this issue for review by objecting below, thereby rendering it unpreserved.
Cunningham first challenges Sergeant Wellman's testimony that Cunningham was charged with armed robbery in the carjacking case. Cunningham correctly argues on appeal that Sergeant Wellman's testimony was inaccurate as the register of actions from Cunningham's earlier case indicates that Cunningham was charged with unarmed robbery. Because Sergeant Wellman's testimony about this charge was inaccurate, it was irrelevant and inadmissible. MRE 401; MRE 402. While Sergeant Wellman's mistake regarding the pertinent charge was plainly erroneous, Cunningham cannot establish that the error affected his substantial rights. Other than Sergeant Wellman's singular misstatement, there was ample evidence that Cunningham was charged with unarmed robbery in the previous case. The victim reported that he was kicked, punched, and choked, but made no reference to a weapon of any kind. Also, the register of actions in the carjacking case was admitted in evidence and published to the jury, and it clearly reflected a charge of "ROBBERY-UNARMED." It is therefore unlikely that Sergeant Wellman's error was outcome-determinative under these circumstances.
Cunningham also argues that after testimony was presented that he was charged with carjacking, Sergeant Wellman's recitation of the remaining charges that Cunningham faced was irrelevant and prejudicial. The threshold for relevance is a low one. Indeed, as long as the evidence has "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," it is relevant. MRE 401 (emphasis added). The prosecution's theory of the case was that Cunningham conspired to kill the victim to keep him from testifying in the carjacking case. The full charges Cunningham faced in that case made the prosecution's theory more probable than it would be without the evidence. Additionally, proof of motive is always relevant in murder prosecutions. Smith, ___ Mich App at ___; slip op at 16.
The evidence was also not unfairly prejudicial under MRE 403. "[E]vidence is not 'unfairly prejudicial' simply because it is damaging to a defendant's case." Parrott, ___Mich App at___; slip op at 17. "Rather, unfair prejudice 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." Id. at___; slip op at 17 (quotation marks and citation omitted). Again, the full scope of the charges that Cunningham faced made it more probable that he might take action to silence the victim, thereby avoiding trial and the possibility of conviction in the earlier case. Nothing about the charges was so inflammatory that the evidence would create unfair prejudice. This is especially true because the additional charges-robbery (whether armed or unarmed), receiving and concealing stolen property, and unlawfully driving away a motor vehicle-differed from the charges for which Cunningham was on trial. Thus, the risk of an improper propensity inference was significantly reduced. Admission of this evidence was not plainly erroneous because the probative value of the evidence outweighed the risk of unfair prejudice.
Cunningham alternatively argues that he was denied the effective assistance of counsel when his attorney failed to object to Sergeant Wellman's testimony about the other charges. With respect to Sergeant Wellman's testimony about each charge that Cunningham faced in the carjacking case, defense counsel was not ineffective. The evidence was clearly admissible, and an attorney is not obligated to make a meritless objection. Head, 323 Mich.App. at 539. We agree that there could be no strategic reason not to object to Sergeant Wellman's mischaracterization of the robbery charge as involving a weapon when that was not the case. Any special attention an objection would have drawn would have been favorable to Cunningham by showing that the charge at issue was less severe than stated by Sergeant Wellman. Nonetheless, we are not persuaded that a different result would have been probable but for defense counsel's error. Trakhtenberg, 493 Mich. at 51. Sergeant Wellman's mistaken testimony consisted of a single statement, and other evidence correctly indicated that the Cunningham was charged with unarmed robbery. The nature of the robbery charge was not discussed at any other point during trial or argued by any of the attorneys in closing arguments. Most importantly, as noted earlier, the key issue in this case was the credibility of Begley's testimony incriminating both defendants in the plot to kill the victim. The nature of the robbery charge had little, if any, effect on this determination. Cunningham has therefore not established entitlement to relief with respect to this issue.
We note that Cunningham argues that the evidence of the charges other than carjacking that were pending against him at the time of the victim's death were barred by MRE 404(b), but he does not make any substantive argument regarding other-acts evidence. Instead, he contends that the additional charges were partially inaccurate, irrelevant, and unfairly prejudicial. Thus, to the extent that MRE 404(b) is implicated by this issue, Cunningham has waived review of that aspect of his argument. See People v Smart, 304 Mich.App. 244, 251; 850 N.W.2d 579 (2014) (declining to review question because the merits were not properly addressed in appellate briefing).
Cunningham alternatively requests a remand for a Ginther hearing. This Court denied Cunningham's earlier motions to remand, and Cunningham has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective. Therefore, we again deny Cunningham's request for a remand for a Ginther hearing. MCR 7.211(C)(1)(a).
F. LATE FEE UNDER MCL 600.4803(1)
Finally, Cunningham challenges the trial court's assessment of a penalty late fee under MCL 600.4803(1). Cunningham argues that the court lacked authority to impose the late fee because it entered a retroactive due date for payment of penalties, fees, and costs in Cunningham's judgment of sentence. Cunningham failed to preserve this issue for review, see People v Montague, ___ Mich. App___, ___;___ N.W.2d___ (2021) (Docket Nos. 352089 and 352090); slip op at 9, thereby rendering it unpreserved.
Cunningham was sentenced on August 28, 2019. The judgment of sentence ordered him to pay a total of $20,174.50, which included $1,300 in court costs, $400 in attorney fees, and a $10,000 fine. The form order includes a line for the trial court to specify the due date for payment and further notes that "[f]ine [sic], costs, and fees not paid within 56 days of the due date are subject to a 20% late penalty on the amount owed." On the due date line, the trial court wrote "August 28, 2018" (emphasis added). The register of actions in Cunningham's case reflects a "Transaction Assessment" of $2,340 entered on October 24, 2019. We agree that the trial court was without authority to enter a judgment of sentence ordering payment of Cunningham's penalty, fees, and costs one year before the judgment was entered. Although it is apparent that the August 28, 2018 due date included in the judgment of sentence was a typographical error, Cunningham's due-process rights were implicated.
"Due process requires that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." People v Hall, 499 Mich. 446, 461; 884 N.W.2d 561 (2016). The late fee imposed under MCL 600.4803(1) is a penalty. People v Shenoskey, 320 Mich.App. 80, 86; 903 N.W.2d 212 (2017). As such, Cunningham was entitled to fair notice. The judgment of sentence entered against Cunningham did not provide fair notice because, under its express terms, the late penalty could be imposed immediately upon entry, thereby leaving Cunningham without the ability to ensure the amount due was timely paid. Considering the notice implications, we remand with directions to amend Cunningham's judgment of sentence to provide a due date at or after the time of the amendment.
To the extent that Cunningham asks this Court for permission to pay the amount due under a payment plan that accounts for his indigency, that request is more appropriately directed to the trial court. See MCL 600.4803(1) ("If the court authorizes delayed or installment payments of a penalty, fee, or costs, the court shall inform the person of the date on which, or time schedule under which, the penalty, fee, or costs, or portion of the penalty, fee, or costs, will be due and owing.").
Cunningham also argues that payment of the late penalty violates his right to equal protection. However, that notion has previously been rejected as frivolous. See Shenoskey, 320 Mich.App. at 87. Thus, we decline to address this argument any further.
V. CONCLUSION
In Docket No. 350959, we affirm Crosby's convictions and sentences. In Docket No. 350961, we affirm Cunningham's convictions and sentences, but vacate his judgment of sentence and remand with directions to enter an amended judgment of sentence setting a new due date for payment of his penalties, fees, and costs at or after the time the amended judgment of sentence is entered. We do not retain jurisdiction.