Opinion
364695
08-01-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GARY EUGENE NICOLL, Defendant-Appellant.
UNPUBLISHED
Menominee Circuit Court LC No. 22-004437-FH
Before: CAMERON, P.J., and N. P. HOOD and YOUNG, JJ.
PER CURIAM.
Defendant, Gary Eugene Nicoll, appeals by right his conviction and sentence following a jury trial in which he was convicted of one count of second-degree fleeing and eluding, MCL 257.602a(4)(b), and two counts of resisting or obstructing a police officer, MCL 750.81d(1). At a pretrial hearing, the trial court excluded evidence about the underlying bases for two warrants that were the genesis of the charges. Nonetheless, at trial, ostensibly to prove the lawfulness of the arrests, the prosecution introduced an unredacted copy of a warrant for contempt of court in a felony breaking-and-entering case, an unredacted copy of a warrant for failing to appear in a domestic violence case, details about the aggravated nature of the domestic violence allegations, testimony about Nicoll's habit of failing to appear for court, and testimony regarding Nicoll's general criminal character. The prosecution suggested, "[T]his is what . . . Gary Nicoll does? Isn't it? . . . He's a criminal [who] doesn't show up for court; is that correct?" On appeal, Nicoll argues that this amounted to prosecutorial misconduct or that his counsel was ineffective for failing to object. We agree that trial counsel's failure to object was deficient and that deficiency prejudiced the defense. For these reasons, and those stated below, we vacate Nicoll's convictions and remand for a new trial.
I. BACKGROUND
This case started with Menominee County Sheriff's deputies' attempts to stop and later arrest Nicoll. While stopped at an intersection, a Menominee County Sheriff's deputy believed he saw Nicoll, whom he recognized from previous police interactions, drive past him. The deputy contacted his central dispatch to determine whether Nicoll had any outstanding warrants, and dispatch informed him that there was an outstanding felony bench warrant for Nicoll's arrest. He later learned that Nicoll also had an outstanding misdemeanor warrant for domestic violence. The deputy and his partner followed the vehicle and activated their vehicle's emergency lights and siren to attempt a traffic stop. But the driver did not stop or pull over, at least not right away. Rather, after approximately two miles, he pulled into a driveway that led to Nicoll's property.
Once on the property, the deputies followed the vehicle as it circled a barn. When they began to go around the barn a second time, the deputies stopped, staying in their vehicle. After a few seconds, they drove to the back of the barn where they saw someone running. One deputy drove past the person, and the other exited the patrol vehicle to look for him. The deputies called Nicoll's name and eventually, after approximately two minutes, Nicoll exited the barn. One deputy testified that he saw the person run in the direction of the location where they later found Nicoll. The other testified that he had no doubt that Nicoll was the person they saw running and the person he saw earlier driving the car.
The deputies ordered Nicoll to put his hands behind his back, but Nicoll did not comply, instead putting his hands into his pockets. Both deputies had concerns because of a prior incident in which Nicoll fought with police. Nicoll began to ask the deputies questions as they continued to tell him to put his hands behind his back. Nicoll failed to comply with police orders for several minutes before finally submitting to arrest.
Before trial, the trial court ordered that the bench warrants, which led to Nicoll's arrest were inadmissible. Shortly before trial, the prosecution filed an amended exhibit list which included the warrants. At a pretrial hearing, the prosecution argued that the warrants were admissible on what was essentially a res gestae theory: the warrants triggered the attempt to arrest Nicoll, which triggered the flight. The defense countered that the basis for the warrants underlying Nicoll's arrest were not relevant and unfairly prejudicial. The trial court agreed-at least, initially. It excluded certified copies of the bench warrants out of concern that each warrant "is going to have reference to the reason for the bench warrant," which in the words of the trial court, "has no relevancy to what we are going to trial on," namely, fleeing and eluding and resisting and obstructing. The court left open the possibility for introducing the warrants if the defense challenged the existence of the warrants.
At trial, the defense challenged one deputy's knowledge of the existence of a valid warrant. After reviewing a portion of the patrol car video, the defense questioned the deputy:
Q. Okay, and at this point, you haven't verified whether the warrant is valid or not, have you?
A. If it's a valid warrant?
Q. Whether the warrant is actually in existence.
A. The warrant is in existence, yes, at this point.
Q. But you hadn't been told that on dispatch.
A. I have.
The prosecution then moved to admit certified copies of the bench warrants, which the court received without objection from the defense. One warrant was a misdemeanor warrant for failing to appear for a pretrial conference in a domestic violence case. The other was a bench warrant holding Nicoll in contempt for failing to appear in a case involving breaking and entering a building with intent, a felony. The prosecutor questioned both deputies about Nicoll's domestic violence warrant. With one deputy, the prosecutor engaged in the following exchange:
Q. And domestic violence, that is an assaultive crime; is that correct?
A. Correct.
Q. So when there's-he's got aggravated assault, domestic violence?
[Defense Counsel]: Your Honor, I'm going to object. I don't think that this is relevant in that we're not talking about some other charge that has nothing to do with this case.
[The Prosecutor]: I'm not even arguing this, Your Honor.
[The Court]: I'm not sure what your question was going to.
[The Prosecutor]: I'm saying the dispatch came over aggravated assault, and I can't remember if she said domestic violence at all, but domestic violence is aggravated-it can be assault or aggravated assaultive crime.
[The Court]: You can ask him that question. That wasn't what you asked him, but if you rephrase it, you can ask it.
By [The Prosecutor]:
Q. Is that correct?
A. Yes.
The prosecutor engaged in a similar exchange with the other deputy, emphasizing the aggravated nature of domestic assault.
On cross-examination, the deputy acknowledged that the misdemeanor warrant was for "failure to appear for pretrial" and that on the "felony warrant," there was a box checked indicating that Nicoll was "[h]eld in contempt for failure to appear." The defense attempted to elicit testimony that the domestic violence case was dismissed, but the prosecution objected, and the court sustained the objection.
On redirect, the prosecutor questioned the deputy about both warrants being for Nicoll's failure to appear in court, one of which resulted in contempt. He then elicited the following testimony:
Q. So he doesn't appear in court when he's supposed to?
A. Correct.
Q. This type of activity, is this the type of activity-and you know [Nicoll]-why you called into dispatch when you saw him in the first place?
A. Correct.
Q. So that's what the Gary-Gary Nicoll does; isn't it?
A. That's what the warrants for were for.
Q. He's a criminal. He doesn't show up for court; is that correct?
Q. Correct.
No objection followed this exchange. There was likewise no limiting instruction or instruction to disregard character evidence.
After the close of evidence, the trial court instructed the jury. Prior to trial, the court gave oral instructions on the elements of second-degree fleeing and eluding. But at the close of trial, although it was contained in the written jury instructions, the trial court neglected to orally instruct the jury on the elements fleeing and eluding. After the instructions were read, the trial court asked whether there were any issues with the jury instructions as read, to which defense counsel responded: "No, Your Honor." The jury found Nicoll guilty on all counts, including second-degree fleeing and eluding. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Nicoll argues that the prosecutor engaged in misconduct warranting reversal by eliciting testimony about not only the validity of the warrants for his arrest, but their underlying basis, and Nicoll's general criminality and noncompliance with court orders. Relatedly, Nicoll argues that phhhh6he was denied effective assistance of counsel when his lawyer failed to object when the prosecutor elicited testimony contrary to the trial court's prior order or that was otherwise clearly objectionable. We agree that trial counsel was deficient for failing to object. The questioning and testimony was improper and violative of myriad rules of evidence. See, e.g., MRE 402 ("Irrelevant evidence is not admissible."); MRE 403 (excluding relevant evidence when its "probative value is substantially outweighed by the danger of . . . unfair prejudice, [or] confusing the issues . . ."); MRE 404(b) (prohibiting evidence of other crimes or wrongs to prove a person's character or show that a person acted in accordance with that character; providing the proper procedure for noticing and introducing other-acts evidence). Because the trial court had already prohibited its admission, and expressed the view that the underlying basis of the warrants was inadmissible, we discern no valid strategy in defense counsel's decision not to object. We also agree that trial counsel's deficient performance undermines this Court's confidence in the outcome.
Because we resolve this issue on Nicoll's ineffective-assistance-of-counsel claim, we need not address whether it was prosecutorial misconduct for the prosecutor to ask about the underlying basis for the warrants, i.e., domestic violence and contempt of court for failing to appear in a felony breaking-and-entering case, when the trial court previously concluded that the underlying basis for the warrant was not relevant and should not be admitted or for asking: "So he doesn't appear in court when he's supposed to?" "So that's what . . . Gary Nicoll does[?]" "He's a criminal[?]" "He doesn't show up for court; is that correct?"
As stated in People v Otto, ___ Mich.App. ___, ___; ___ NW3d ___ (2023) (Docket No. 362161); slip op at 4:
A claim of ineffective assistance of counsel involves a mixed question of law and fact. People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). We review findings of fact, if any, for clear error. Id. "We review de novo the constitutional question whether an attorney's ineffective assistance deprived a defendant of his or her Sixth Amendment right to counsel." People v Fyda, 288 Mich.App. 446, 449-450; 793 N.W.2d 712 (2010). "Where the trial court has not conducted an evidentiary hearing, this Court's review is limited to mistakes apparent on the record." People v Hughes, 339 Mich.App. 99, 105; 981 N.W.2d 182 (2021) (quotation marks and citation omitted). Issues of statutory interpretation are reviewed de novo. People v Ambrose, 317 Mich.App. 556, 560; 895 N.W.2d 198 (2016).
“Both the Michigan and United States Constitutions guarantee criminal defendants the right to be represented by counsel.” Otto, ___ Mich.App. at ___; slip op at 4, citing Const 1963, art 1, § 20; U.S. Const, Am VI. “The constitutional right to counsel is not merely the right to have a lawyer stand or sit nearby; rather, a criminal defendant has the right to the effective assistance of counsel.” Otto, ___ Mich.App. at ___; slip op at 4.
An ineffective-assistance-of-counsel claim has two parts: (1) deficiency and (2) prejudice. Fyda, 288 Mich.App. at 450. See also Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). "To establish a claim of ineffective assistance of counsel a defendant must show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense." Fyda, 288 Mich.App. at 450. Regarding the first prong, deficiency, "[t]rial counsel's performance is deficient when it falls below an objective standard of professional reasonableness." Hughes, 339 Mich.App. at 105. "When reviewing defense counsel's performance, the reviewing court must first objectively determine whether, in light of all the circumstances, the identified acts or omissions were outside of the wide range of professionally competent assistance." Id. at 105-106 (quotation marks and citation omitted). The second prong, prejudice, requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v Leffew, 508 Mich. 625, 637; 975 N.W.2d 896 (2022) (quotation marks and citation omitted). "Reasonable probability means a probability sufficient to undermine confidence in the outcome." Id. at 637 (quotation marks and citation omitted).
A. DEFICIENCY
Trial counsel was deficient for failing to object to the introduction of the bases of the underlying warrants, the prosecution's attempts to emphasize a prior unrelated domestic violence incident, the prosecution's characterization of the unrelated domestic violence as aggravated assault, and the prosecutor's character evidence questions: "So he doesn't appear in court when he's supposed to?" "So that's what . . . Gary Nicoll does[?]" "He's a criminal[?]" "He doesn't show up for court; is that correct?" Trial counsel was deficient because the questions and testimony related to the underlying basis for the warrants, his domestic violence history, and his general criminality were inadmissible. See MRE 402; MRE 403; MRE 404(a); MRE 404(b).
The prosecution introduced four groups of evidence for which Nicoll claims his attorney was ineffective for failing to object. First, the prosecution introduced evidence that Nicoll had prior interactions with a deputy making the arrest. Second, the prosecution introduced warrants leading to Nicoll's arrest in this case. Third, and relatedly, when introducing the warrants, the prosecutor introduced the bases for the warrants at issue in this case. The prosecutor first incorrectly elicited testimony that one warrant was for domestic violence or aggravated assault, and emphasized the aggravated nature of the alleged assault. The defense, and later the prosecution, clarified that both warrants were for failure to appear. This, however, led to the fourth group of evidence: character evidence of Nicoll's general criminality and noncompliance with court orders. To do so, the prosecutor and deputy engaged in the following exchange:
Nicoll characterizes these evidentiary issues as two errors. Because they implicate different aspects of the Michigan Rules of Evidence, we recategorize these as four interrelated groups of evidence.
Of the four groups of evidence at issue on appeal, the warrants were admissible. See People v Washington, unpublished per curiam opinion of the Court of Appeals, issued February 12, 2019 (Docket No. 336426), p 4 (concluding that warrants were admitted for the purpose of establishing a significant contested issue at trial: whether the officers were conducting a lawful arrest). A redacted copy of the warrant would directly address an element of each of Nicoll's charges: the lawfulness of the stop or arrest. See id. See also MCL 257.602a(4)(b); MCL 750.81d(1). The underlying bases for the warrants is a different matter. As explained later regarding the first group of evidence at issue, the fact that one deputy knew Nicoll, without saying how he knew him, bears on identification, and is also admissible. The remaining categories of evidence at issue were inadmissible for the reasons provided in this opinion.
Q. So he doesn't appear in court when he's supposed to?
A. Correct.
Q. This type of activity, is this the type of activity-and you know [Nicoll]-why you called into dispatch when you saw him in the first place?
A. Correct.
Q. So that's what . . . Gary Nicoll does; isn't it?
A. That's what the warrants for were for.
Q. He's a criminal. He doesn't show up for court; is that correct?
Q. Correct.
The defense did not object to this final exchange. On appeal, the prosecution concedes that it was improper but does not acknowledge why. The reason it is improper is critical. The last and most egregious line of questioning violated MRE 404(a)'s prohibition against improper character evidence. It also bookended a series of evidence regarding Nicoll's prior domestic violence and failures to appear in court (which is to say, failure to obey lawful orders), that also violated MRE 404(b). In fact, with the exception of the certified copies of the warrants, or some redacted form of the warrants, which bear on the lawfulness of the arrests, an element of each of the three charges, see MCL 257.602a(4)(b); MCL 750.81d(1), each piece of evidence that Nicoll identifies on appeal violates MRE 404(b)'s requirements for a proper purpose, proper notice, logical relevance, and an unacceptable risk of prejudice and confusion of the issues. The generalized character evidence of Nicoll's criminality and character for not complying with court orders also violated MRE 404(a)'s prohibition on character evidence.
1. TRIAL COUNSEL'S FAILURE WAS NOT STRATEGIC
At the outset, we cannot attribute trial counsel's failure to object to strategy or trial tactics. We acknowledge that Nicoll must overcome a strong presumption that counsel's performance constituted sound trial strategy. People v Carbin, 463 Mich. 590, 600; 623 N.W.2d 884 (2001). This Court will not substitute its judgment for that of trial counsel regarding matters of trial strategy. People v Davis, 250 Mich.App. 357, 368; 649 N.W.2d 94 (2002). Counsel will only be found ineffective on the basis of a strategic decision if the strategy employed was not sound or reasonable. People v Cline, 276 Mich.App. 634, 637; 741 N.W.2d 563 (2007).
Here, there is no reasonable basis for counsel's decision not to object to the prosecution's efforts to introduce irrelevant and extremely prejudicial testimony, which, at its crescendo, tipped into unfettered character evidence about Nicoll's general criminality and possible commentary on the ultimate question of Nicoll's guilt. The clearest evidence that trial counsel's decision was not rooted in strategy is that the same attorney objected to the evidence at a pretrial hearing on its admissibility. Trial counsel objected to the admission of the warrants or their bases prior to trial. The trial court agreed that the underlying bases for the warrants were not admissible because they were not relevant to any material fact at issue in this trial. It permitted the admission of the warrants if the defense attacked the validity of the warrants. But it does not appear that happened. Rather, the defense questioned the deputy's knowledge of the existence of a valid warrant. The prosecution then used this line of questions to introduce irrelevant details regarding Nicoll's history of assault, failure to show up for court, and general propensity for crime. Putting aside the apparent irrelevance and unfair prejudice related to the unnoticed other-acts evidence and propensity evidence, the fact that the defense objected (even in general terms) to the admission of this evidence indicates that the decision not to object at trial was not strategic.
Further, if timely made, the trial court should have sustained the objections. See MRE 404(a). See also MRE 404(b); MRE 403. The most obvious defect is that, with the exception of the warrants, or a redacted copy of the warrants to show the validity of the arrests, the other three groups of evidence (i.e., Nicoll's unrelated domestic violence history, the underlying bases for the warrants, Nicoll's general criminality and propensity to commit crimes and disobey orders) violated MRE 404's prohibition of character evidence. See MRE 404(a); MRE 404(b). See also People v Denson, 500 Mich. 385, 297-409; 902 N.W.2d 306 (2017). There is no valid strategy for allowing this sort of evidence.
2. THE PROSECUTION INTRODUCED IMPERMISSIBLE CHARACTER EVIDENCE
Most obviously, the prosecutor's questions about Nicoll's habit of failing to appear in court, general character for criminality, and its attempt to link these traits to this case was violative of MRE 404(a). The Michigan Rules of Evidence largely prohibit character evidence outside of limited, well-defined exceptions. See MRE 404(a). Many of the cases addressing prohibitions against character evidence do so in the context of MRE 404(b), presumably because few cases involve the prosecution eliciting testimony about a defendant's general criminal character or general predisposition to disobey lawful orders. See, e.g., Denson, 500 Mich. at 385; People v Thurmond, ___ Mich.App. ___, ___; ___NW3d ___ (2023) (Docket No. 361302); slip op at 4-7. The guiding principles of our 404(b) analysis apply equally, if not more so, to MRE 404(a). Like MRE 404(b), the prohibitions in MRE 404(a) "reflect[] the fear that a jury will convict a defendant on the basis of his or her allegedly bad character rather than because he or she is guilty beyond a reasonable doubt of the crimes charged." Denson, 500 Mich. at 397, citing People v Crawford, 458 Mich. 376, 384; 582 N.W.2d 785 (1998).
This fear of conviction based on character, rather than high-confidence evidence, is embodied in this case. On appeal, the prosecution concedes that the following exchange was improper:
Q. So he doesn't appear in court when he's supposed to?
A. Correct.
Q. This type of activity, is this the type of activity-and you know [Nicoll]-why you called into dispatch when you saw him in the first place?
A. Correct.
Q. So that's what . . . Gary Nicoll does; isn't it?
A. That's what the warrants for were for.
Q. He's a criminal. He doesn't show up for court; is that correct?
A. Correct.
We agree that this exchange was improper. The questions, "He's a criminal[?]" and "He doesn't show up for court; is that correct?" elicited character evidence. See MRE 404(a). They do not correspond to a specific instance of bad conduct; rather, the questions illustrate Nicoll's general character for criminality and noncompliance with court orders. Compare MRE 404(b) with MRE 404(a). The egregiousness of these two questions almost overshadows the troubling nature of the questions leading to it. By asking if "[t]his type of activity"-i.e., his habit of not appearing in court when he is supposed to-was "why [the officers] called into dispatch" when they saw him, the prosecutor deftly linked his character to the facts of this case.
This would be prejudicial and undermine our confidence in almost any case, but the concerns are amplified because of the nature of the charges. Each of Nicoll's three charges involve noncompliance with a valid or lawful order. This means the jury could rely not only on evidence of his general criminality, but also on the specific evidence of his character for not complying with orders. This bears directly on elements the jury had to consider.
In Denson, our Supreme Court found reversible error when the prosecution introduced similar evidence. See Denson, 500 Mich. at 392-395, 409-413. There, to rebut a self-defense claim at a trial on assault with intent to do great bodily harm, MCL 750.84, the prosecution introduced properly-noticed evidence of a prior conviction of assault with intent to do great bodily harm in an unrelated incident. See id. at 392. The defense argued it was irrelevant, unfairly prejudicial, and propensity evidence in disguise. Id. at 392-393. The prosecution argued that it did not offer the conviction as propensity evidence, but rather to rebut the self-defense claim. Id. at 393. The prosecution elicited evidence of the other conviction through several witnesses, but then suggested to the defendant "You have a bad temper, don't you?" and asked him whether the beating in the present case got the "rage out of your system, because you are a bully . . ., aren't you? Yes or no?" Id. at 393. In closing, the prosecution again described him as a "bully" and argued that he lost control in the present case, just like he did before. Id. at 394. Though analyzing the admissibility through the lens of MRE 404(b), our Supreme Court found the statements to be purely propensity evidence without logical relevance. Id. at 398-409.
Here, like Denson, the prosecution presented propensity evidence. Unlike Denson, the evidence elicited through this specific line of questioning crossed from other-acts evidence to general character evidence implicating 404(a). Though this evidence likely also violated MRE 402, MRE 403, and MRE 404(b), the MRE 404(a) violation was obvious, and trial counsel was deficient for failing to object to it.
3. THE PROSECUTION INTRODUCED IMPERMISSIBLE OTHER-ACTS EVIDENCE
While MRE 404(a) generally prohibits character evidence, MRE 404(b) prohibits evidence of specific other bad acts "to prove character in order to show that on a particular occasion the person acted in accordance with the character." MRE 404(b)(1). The prosecution's questions regarding the underlying bases for the warrants at issue in this case, questions about an unrelated domestic violence incident and its aggravated nature, and the exchange previously addressed, above all, violated MRE 404(b) for want of a proper purpose, proper notice, logical relevance, and risk of prejudice.
MRE 404(b) provides:
(b) Other Crimes, Wrongs or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. If it is material, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, absence of mistake, or lack of accident.
The Michigan Rules of Evidence were amended effective January 1, 2024. Though the organization of MRE 404 changed, the substance remains largely unchanged.
In criminal cases, the prosecutor must "provide notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it[.]" MRE 404(b)(3)(A). The notice must articulate the permitted purpose, and absent good cause, must be submitted in writing at least 14 days before trial. See MRE 404(b)(3)(B), (C).
Our Supreme Court has observed that "[t]he first sentence of [MRE 404(b)] represents the deeply rooted and unwavering principle that other-acts evidence is inadmissible for propensity purposes." Denson, 500 Mich. at 297 (citations omitted). "Far from 'a mere technicality,' this prohibition 'gives meaning to the central precept of our system of criminal justice, the presumption of innocence.'" Id., quoting Crawford, 458 Mich. at 383-384. As stated, this rule stems from the fear that juries will convict on the basis of bad character, rather than high-confidence evidence of the crimes charged. See Denson, 500 Mich. at 297 (acknowledging the risk that bad acts evidence "can weigh too much with the jury" and "overpersuade them" to prejudge a defendant with bad character). MRE 404(b) provides that other-acts evidence may be admissible for non-propensity purposes. See id. at 398. See also MRE 404(b)(2).
In People v VanderVliet, our Supreme Court synthesized the standard for admitting other-acts evidence:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [People v VanderVliet, 444 Mich. 52, 55; 508 N.W.2d 114 (1993).]
With the exception of a redacted version of the warrants and the fact that one deputy already knew Nicoll, each piece of evidence Nicoll identifies fails each part of VanderVliet: proper purpose, logical relevance, and 403 analysis. To be clear, the warrants, or a redacted version of them, bear directly on the lawfulness of Nicoll's arrest and the officers' orders, so they are admissible. The fact that one deputy knew Nicoll, without saying how he knew him, bears on identification, and is also admissible.
We acknowledge that the record is unclear on whether dispatch informed the deputies of the felony warrant, the domestic violence warrant, or both. Part of the record suggests that the deputies only later learned that there was an outstanding warrant for failure to appear on the domestic violence case. If that was the case, the later-discovered warrant would not be relevant to the lawfulness of the arrest or any other material fact in the case.
In his brief, Nicoll incorrectly states that a deputy testified that he knew him from an arrest on an unrelated domestic violence case. The transcript indicates that the deputy testified that he knew Nicoll from "previous contacts." A portion of the prosecutor's follow-up question was inaudible, but they appeared to then ask about the domestic violence warrant unrelated to the deputy's familiarity with Nicoll.
First, the prosecution failed to identify a proper purpose for the introduction of the underlying bases for the warrants, testimony emphasizing the aggravated nature of the domestic violence, prior failures to appear at court, or Nicoll's general criminal character. The first prong of the VanderVliet test asks "whether the prosecution has articulated a proper noncharacter purpose for admission of the other-acts evidence." Denson, 500 Mich. at 398, citing Crawford, 458 Mich. at 385-386. "The prosecution bears the burden of establishing that purpose." Denson, 400 Mich. at 398. "MRE 404(b) prohibits the admission of other-acts evidence when the prosecution's only theory of relevance is that the other act demonstrates the defendant's inclination for wrongdoing in general and thus indicates that the defendant committed the conduct in question." Denson, 500 Mich. at 398-399 (emphasis added), citing People v Starr, 457 Mich. 490, 496; 577 N.W.2d 673 (1998); VanderVliet, 444 Mich. at 63.
Here, as with trial court, the prosecution does not offer a proper purpose; rather, it argues the underlying bases for the warrant, the details of the domestic violence, and Nicoll's habit of failing to appear in court, are res gestae evidence, which is to say evidence that is intrinsic to the charge of fleeing and eluding and resisting and obstructing. This argument fails for two reasons. First, there is no "res gestae exception" to MRE 404(b). People v Jackson, 498 Mich. 246, 264276; 869 N.W.2d 253 (2015). Second, to the extent the prosecution argues that the underlying bases of the warrants (i.e., failing to appear in a domestic violence case and contempt for failing to appear in a breaking-and-entering case), the specifics of the domestic violence allegations, and Nicoll's habit of failing to appear in court, are the "conduct at issue" in this case, see id. at 269-271, citing People v Delgado, 404 Mich. 76; 273 N.W.2d 395 (1978) and People v Sholl, 453 Mich. 730; 556 N.W.2d 851 (1996), it is wrong. As stated, the existence of the warrants may be part of the conduct at issue. But as the trial court correctly concluded before trial, the underlying bases for the warrants is not. The fact of the warrants, or rather the deputies' knowledge of the warrants, bear on whether the initial pursuit and attempted arrest were lawful. It does matter that the warrant was for domestic violence, breaking and entering, failure to appear, or contempt. If the warrant were for murder, or torture, or criminal sexual conduct, it likewise would not matter. The prosecution's inability to identify a proper purpose and emphasis of Nicoll's history of noncompliance with court orders, through the failures to appear, suggest that it offered the evidence only to establish propensity. In other words, this evidence illustrated, as the prosecution suggested, that "this is what Gary Nicoll does."
Relatedly, the evidence fails the second prong of the VanderVliet test: logical relevance under MRE 401 and MRE 402. See Denson, 500 Mich. at 400-401. "Other-acts evidence is logically relevant if two components are present: materiality and probative value." Id. at 401. "Materiality is the requirement that the other-acts evidence be related to any fact that is of consequence to the action." Id. (quotation marks omitted). "In other words, is the fact to be proven truly in issue?" Crawford, 458 Mich. at 388. Was the difference between aggravated and ordinary domestic assault at issue? Was it at issue whether the bases for the warrant were failure to appear, or contempt, or domestic violence, or breaking and entering with unlawful intent? The short answer is no. Whether "this is what Gary Nicoll does," his habit of noncompliance with court orders, or his general criminality was also not at issue. The lawfulness of the arrest was at issue, so the warrants, or a redacted version of the warrants were material. But to be clear, testimony that the deputy was informed of the existence of an outstanding warrant, would have satisfied this. The reality is the evidence Nicoll points to on appeal was not material. See Denson, 500 Mich. at 401. We need not address whether it was probative. See id.
Because the bases of the warrants (i.e., allegations of failure to appear, contempt, domestic violence, and breaking and entering), specifics of the domestic violence allegations, and Nicoll's habit for failing to appear lacked logical relevance to this case, and because the prosecution failed to offer a proper nonpropensity purpose for introducing this evidence, it was inadmissible under MRE 404(b). We need not address whether such evidence satisfied the third or fourth prong of VanderVliet: analysis under MRE 403 and a limiting instruction. See Denson, 500 Mich. at 409, n 13. We simply note that because there was no objection, there was no limiting instruction, see VanderVliet, 444 Mich. at 55, so the jury likely did not know it could not consider this evidence.
Because the aforementioned evidence violated MRE 404(a) and MRE 404(b), trial counsel was deficient for failing to object. Such an objection would have, or should have, been sustained. We again discern no strategic reason for allowing the prosecution to introduce bald evidence of criminal character, habit of noncompliance with court orders, and the details of warrants whose existence led to the initial pursuit.
B. PREJUDICE
We now consider the second prong of the Strickland test: whether trial counsel's deficiency prejudiced Nicoll. See Strickland, 466 U.S. at 691. Once a defendant demonstrates that trial counsel's performance was deficient, he must also show "that the deficient performance prejudiced the defense." People v Hoag, 460 Mich. 1, 5; 594 N.W.2d 57 (1999). "In attempting to persuade a reviewing court that counsel was ineffective, a defendant must also . . . establish a 'reasonable probability that, but for counsel's unprofessional errors, the result would have been different.'" Id. at 6, quoting People v Johnson, 451 Mich. 115, 124; 545 N.W.2d 637 (1996)." 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" People v Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018), quoting Strickland, 466 U.S. at 694.
As stated, had trial counsel objected to the evidence, the trial court would have, or should have, sustained the objection. In Denson, our Supreme Court analyzed whether evidence introduced in violation of MRE 404(b) was harmless error, which is to say, whether it was more likely than not that the error affected the outcome. See Denson, 500 Mich. at 409-413. Though a different test than Strickland's prejudice prong, the analysis in Denson illuminates the issue in this case. Regarding the impact of impermissible propensity evidence, the Court stated:
We have noted that other-acts evidence carries with it a high risk of confusion and misuse. Crawford, 458 Mich. at 398. When a "defendant's subjective character [is used] as proof of conduct on a particular occasion, there is a substantial danger that the jury will overestimate the probative value of the evidence." People v Engelman, 434 Mich. 204, 213 n 16; 453 N.W.2d 656 (1990), quoting Imwinkelried, Uncharged Misconduct Evidence, § 2:18, pp 48-49. The risk is severe that the jury "will use the evidence precisely for the purpose that it may not be considered, that is, as suggesting that the defendant is a bad person, a convicted criminal, and that if he 'did it before he probably did it again.'" Crawford, 458 Mich. at 398. [Denson, 500 Mich. at 410.]
It further observed that "other crimes evidence is strong medicine for juries." Id. (citation omitted). Relying on these principles, our Supreme Court concluded that the prosecution's questions and arguments painting the defendant as a "bully" who lost control, convinced the Court that "the jury could not escape the impermissible inference invited by [the] evidence and that the prejudice defendant suffered as a result was severe enough to entitle him to relief." Id. at 411-412.
If this is true of impermissible other-acts evidence, how then do we measure the prejudice associated with impermissible character evidence? Put differently, how do we measure the prejudice associated with the prosecution's invitation to the jury to conclude that, in the prosecution's words, "[T]his is what . . . Gary Nicoll does," or conclude that he is a "criminal" who commits crimes? We conclude that the prosecution's invitation for the jury to decide this case based on Nicoll's character and past conduct, left uncorrected by defense counsel and the trial court, was sufficient to undermine our confidence in the outcome. At trial, the defense was that there may be reason to doubt that Nicoll was driving the vehicle before it reached his property. The introduction of impermissible evidence of Nicoll's criminal character, habit of not complying with lawful orders, and other-acts evidence rendered an otherwise flimsy but passable defense effectively nonexistent.
The deficiency in failing to object to this evidence necessarily affected the outcome. We therefore vacate Nicoll's conviction and remand for a new trial.
Because our handling of Nicoll's ineffective-assistance-of-counsel claim resolves this appeal, we need not address his remaining claims, including his claim of instructional error related to the trial court's failure to instruct the jury on the elements of second-degree fleeing and eluding in its final instructions. See People v Duncan, 462 Mich. 47, 48, 51-55; 610 N.W.2d 551 (2000) (holding that it is structural error when a trial court completely fails to instruct the jury on the elements of a charge). See also People v Traver, 502 Mich. 23, 28; 917 N.W.2d 260 (2018) (holding that our court rules require oral instruction; written instructions are insufficient). We nonetheless acknowledge that the trial court's failure to provide final instruction on one of the charges compounds the prejudice and further undermines our confidence in the conviction. Cf. Duncan, 462 Mich. at 51-55. As stated, the risk of character evidence and propensity evidence is that a jury will convict on the basis of a defendant's bad character or history, rather than proof of the elements of the charge. See Denson, 500 Mich. at 410-412. Here, where there is both inadmissible character evidence and a failure to instruct the jury of the elements in the final charge, that risk is further amplified. This further supports our conclusion that trial counsel's deficiency resulted in prejudice.
III. CONCLUSION
For the reasons stated above, we vacate Nicoll's conviction and remand for a new trial. The trial court and lawyers should take caution to ensure that the jury is instructed on the elements of all of the charges. The prosecution shall refrain from introducing improper character evidence in violation of MRE 404(a). To the extent the prosecution intends to introduce evidence of other acts, including the underlying bases for the warrant, it shall comply with MRE 404(b), including the notice requirement, and the trial court shall specify on the record whether and why such acts are admissible under VanderVliet. We vacate the convictions and remand for a new trial. We do not retain jurisdiction.
YOUNG, J. (concurring).
I fully concur in the lead opinion. I write separately to elaborate that, in my view, defense counsel was only ineffective here because counsel failed to object to the prosecution's misconduct.
"Given that a prosecutor's role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." People v Dobek, 274 Mich.App. 58, 63; 732 N.W.2d 546 (2007). When considering allegations of prosecutorial misconduct, this Court must "examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64. A prosecutor may not knowingly introduce or elicit inadmissible evidence. People v Dyer, 425 Mich. 572, 576; 390 N.W.2d 645 (1986); see also People v Watson, 245 Mich.App. 572, 587; 629 N.W.2d 411 (2001), quoting People v White, 53 Mich.App. 51, 58; 218 N.W.2d 403 (1974) (When challenging the prosecution's questioning of witnesses, "[i]n order to warrant reversal, 'it is necessary to show some prejudice or pattern of eliciting inadmissible testimony.' ").
As the lead opinion concludes, "the questions and testimony related to the underlying basis for the warrants, [Nicoll's] domestic violence history, and his general criminality were inadmissible." We also observe that "the prosecution[ ] [made] efforts to introduce irrelevant and extremely prejudicial testimony," as well as impermissible character and other-acts evidence. Given that the prosecution's questions and the elicited testimony at multiple points were inadmissible in numerous respects such as to prejudice Nicoll and necessarily affect his trial, I conclude further that the prosecution's questioning denied Nicoll a fair and impartial trial and thus constituted prosecutorial misconduct.
Again, I fully agree that reversal is warranted because of defense counsel's deficient failure to object to the prejudicial evidentiary errors in this case. But because prosecutors have a duty to seek justice and avoid reversible error, the prosecution here should not get a pass for eliciting these errors in the first place.
CAMERON, P.J. (dissenting).
In my opinion, this case boils down to the prosecutor's inappropriate comment that defendant is "a criminal" who "doesn't show up for court[.]" I wholeheartedly agree with the majority that this statement was improper, and that trial counsel should have objected. But, I disagree that trial counsel's failure to object to this comment meets the prejudice threshold under Strickand v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). That is, I do not believe there is a reasonable probability that a timely objection would have changed the jury's verdict. I also disagree that trial counsel provided constitutionally-deficient representation by not objecting to evidence relating to defendant's arrest warrants. In my view, the majority has revised defendant's arguments on appeal, exceeding our role as an error-correcting court, and, in doing so, has failed to apply the highly deferential abuse-of-discretion standard we must use when examining evidentiary issues. I therefore respectfully dissent.
I. SCOPE OF DEFENDANT'S ARGUMENT
As an initial matter, I question whether this Court should even consider defendant's argument about the admissibility of the arrest warrants, or any testimony relating to them. The scope of this Court's review is limited to arguments raised on appeal, and "[t]he failure to brief the merits of an allegation of error constitutes an abandonment of the issue." People v McPherson, 263 Mich.App. 124, 136; 687 N.W.2d 370 (2004). On appeal, defendant provides a cursory argument in support of his ineffective-assistance-of-counsel claim concerning the basis for the admitted warrants:
Little time should be spent speculating how such testimony might be admissible. Under no rule of evidence would a misdemeanor arrest on a domestic violence or aggravated assault warrant be admissible at this trial. The evidence does not fit MRE 609. It is not admissible as character evidence under MRE 404a. No pre-trial [sic] notice was offered under MRE 404b. It is not minimally relevant under MRE 401-402. The prosecution never argued a theory of admissibility because it entered without objection.
Defendant does indeed devote "little time" to his argument. His conclusionary observations fail to contextualize our rules of evidence. Further, his argument fails to clarify the purported error under the specific wording of the rules. Defendant's failure to brief the merits of this argument amounts to abandonment of the issue, and it is inappropriate for this Court to conclude otherwise. McPherson, 263 Mich.App. at 136. I would therefore end the analysis here. Nevertheless, the majority reaches the merits of defendant's unsupported ineffective-assistance-of-counsel claim.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The majority concludes that trial counsel was constitutionally deficient for failing to object to testimony about the allegations underlying defendant's open arrest warrants and for failing to object to the admission of the certified arrest warrants themselves. As the majority correctly notes, ineffective-assistance claims involve a two-part test demonstrating "that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense." People v Fyda, 288 Mich.App. 446, 450; 793 N.W.2d 712 (2010).
A. TESTIMONY ABOUT THE WARRANTS
Defendant points to the following exchange between the prosecutor and the arresting officer, Deputy Aaron Ihander, which occurred after the prosecutor showed Deputy Ihander's bodycam footage to the jury:
Q. What did [defendant] say? He said, "Nice seeing you again."? [sic]
A. Yeah.
Q. You guys know each other?
A. Yes. Well, previous contacts, yes.
Q. (inaudible) to mention . . . he had a misdemeanor warrant for domestic violence, aggravated assault?
A. Yes.
Q. Now that's a misdemeanor; is that correct?
A. The domestic violence should be, yes.
Q. But you're also told before he (sic) started chasing him that he had a felony warrant?
A. Correct.
Q. Do they always tell you what the felony warrant is or do they sometimes just say he's got a felony warrant?
A. They will usually tell you what it is, not . . . always.
Q. Okay. Did they tell you this time?
A. I . . . don't recall.
Q. Okay, but when you . . . signed the warrant . . . and I don't want you to say what it was, but when you signed the warrant, the felony warrant, they did tell you what it was?
A. Yes, it says on there.
Q. Okay. Don't say what it was. And you signed that you took him into custody on that warrant, you signed the bottom of that?
A. Correct.
Q. And that's standard procedure?
A. Yes.
Q. Okay, and that was a valid warrant?
A. Yes.
Defendant opines that trial counsel's failure to object to this exchange amounts to ineffective assistance of counsel because "the testimony appears to have been barred by the in limine ruling described above." I disagree. The trial court's ruling on the motion in limine was very narrow; it prohibited only the admission of "[t]he certified copies of the bench warrants[.]" As the trial court explained:
[T]he Court will only allow the actual bench warrant because typically they contain information as far as other charges that we wouldn't want the jury to hear about. I will not allow the certified copies of the bench warrant to come in unless there is an issue or a challenge to the reason for the stop, being that there are outstanding bench warrants, so if there is any challenge, either by way of argument or testimony that there is an issue with why he was being stopped, then those certified copies can come in, either in the case in chief or in rebuttal.
The trial court's ruling did not prohibit testimonial evidence about any arrest warrant. Rather, its ruling was limited to the admission of certified copies of the bench warrant. The admission of this testimony, therefore, was not contrary to the trial court's earlier ruling. Thus, trial counsel was not ineffective for failing to object under this reasoning. See People v Stevens, 306 Mich.App. 620, 627 n 5; 858 N.W.2d 98 (2014) ("[C]ounsel cannot be considered ineffective for failing to raise a futile objection.").
The majority takes this argument one step further and posits that trial counsel was also constitutionally deficient for failing to object to Deputy Ihander's testimony about the underlying bases of the warrants. But, the larger issue in this case is whether trial counsel was ineffective for failing to object to the prosecutor's statement that defendant was a criminal who does not show up in court. To be clear, this remark by the prosecutor was inappropriate, and I discern no sound trial strategy for trial counsel's failure to object. The ineffective-assistance-of-counsel test also requires a showing of prejudice; defendant must demonstrate a reasonable probability "that, but for counsel's error, the result of the proceeding would have been different." Fyda, 288 Mich.App. at 450. In this case, the prosecutor's comment was made in the context of a two-day trial, which included video footage showing officers attempting to stop defendant's vehicle; a chase that ended at defendant's residence; and clear video evidence showing defendant in his yard resisting arrest. Adding to the video evidence, the arresting officer explained that he knew defendant from prior contacts, and saw him driving the car before the chase began. In my opinion, this overwhelming evidence weighs heavily against the majority's conclusion that there is a reasonable probability a timely objection to the prosecutor's improper remark would have changed the jury's verdict.
Moreover, the jury was properly instructed that "[t]he lawyers' statements and arguments are not evidence," and "[j]urors are presumed to follow their instructions[.]" People v Mahone, 294 Mich.App. 208, 212; 816 N.W.2d 436 (2011). The fact that the prosecutor made this inappropriate remark in this context is not enough to show the result of the proceedings would have been different. Because defendant fails to meet the prejudice prong of the ineffective-assistance-of-counsel test, this Court should affirm on this basis as well.
B. CERTIFIED COPIES OF THE WARRANTS
The majority also seems to suggest that trial counsel was constitutionally deficient for not objecting to the admission of copies of the arrest warrants. But, trial counsel did object. Before trial, trial counsel made a well-reasoned objection to prevent copies of the arrest warrants from being admitted at trial. Indeed, the trial court agreed with trial counsel, ruling that copies of the warrants would not be admitted at trial unless the reason for the stop was challenged. The trial court cautioned the parties that if "there [was] an issue or a challenge to the reason for the stop . . . then those certified copies [could] come in, either in the case in chief or in rebuttal." After the prosecution rested, defendant personally interjected himself into the proceedings and directed his trial counsel to recall a witness in order to challenge the arresting officers' reason for making the traffic stop. Apparently, defendant's strategy was to raise doubt in the jury's mind about whether the arresting officers were "in the lawful performance of [their] duty." MCL 750.479a(1). Trial counsel followed defendant's direction and challenged the validity of the stop. To no one's surprise, this line of questioning caused copies of the arrest warrants to be admitted at trial.
Contrary to the majority's opinion, defendant challenged the validity of the stop, which triggered the admission of the arrest warrants. Ironically, it was defendant himself who caused this evidence to be admitted. During a break in the trial, trial counsel explained to the trial court that her client was insisting that the stop in this case was invalid because the police did not confirm the validity of the warrants before making the stop. Specifically, trial counsel asserted: "Mr. Nicoll takes issue with the fact that although those warrants were valid at the time, the officer didn't know that, and therefore, the pursuit . . . wasn't proper." Defendant then interrupted his attorney, arguing the officers had no valid basis for the stop. Minutes later, trial counsel wisely indicated to the trial court that she intended to rest without calling any witnesses. But, defendant again interrupted and announced that the defense would recall Deputy Ihander, overruling his attorney. After a private conversation, defense counsel followed defendant's direction, called Deputy Ihander, challenged the bases for the stop, and, in so doing, opened the door to the admission of the arrest warrants.
The majority concludes that trial counsel should have nevertheless objected at trial, and further surmises that the trial court would (or should) have sustained the objection. I disagree. The trial court's pretrial ruling was crystal clear; a challenge to the basis for the stop would result in the admission of the warrants. There is no reason to be believe that the same objection at trial would have caused the trial court to reverse its pretrial ruling. Therefore, a second objection would have been futile. The majority's conclusion that defendant's attorney was deficient for failing to object has the perverse effect of rewarding defendant for the situation he personally created. See People v Szalma, 487 Mich. 708, 726; 790 N.W.2d 662 (2010) ("[A] party may not harbor error at trial and then use that error as an appellate parachute[.]").
Implicit in the majority's opinion is that the trial court erred when it admitted an unredacted copy of the arrests warrants at trial. The majority's analysis misses several important points. First, defendant does not argue on appeal that it was error to admit copies of his arrest warrants at trial. Second, the majority fails to properly consider the trial court's pretrial order, which sought to strike a balance between the potential prejudice to defendant concerning the admission of the arrest warrants and the prosecutor's burden to prove a contested element of its case. Third, missing from the majority's opinion is how the trial court's attempt at balancing these competing interests measures up against the highly deferential abuse-of-discretion standard we are required to apply to the trial court's evidentiary decision. Fourth, the primary issue on appeal is not whether the trial court erred in admitting an unredacted copy of the warrants. In the context of ineffective assistance of counsel, the issue is whether trial counsel objected to their admission. Here, trial counsel made a timely objection, thereby preserving the issue on appeal. MRE 103(a)(2). In this situation, nothing more was constitutionally required.
Defendant also raises challenges to the trial court's jury instructions for the fleeing-and-eluding charge as well as its reasoning at sentencing. Regarding the jury instructions, reversal is not necessary because there was not a complete failure to provide the jury with the elements of fleeing and eluding. See, e.g., People v Duncan, 462 Mich. 47, 48; 610 N.W.2d 551 (2000). Similarly, resentencing is not warranted because the record does not indicate that the trial court used defendant's refusal to admit guilt against him at sentencing.