People of Michigan v. Jeffrey Thomas Willis ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 26, 2019
Plaintiff-Appellee,
v No. 344561
Muskegon Circuit Court
JEFFREY THOMAS WILLIS, LC No. 16-006040-FC
Defendant-Appellant.
Before: METER, P.J., and O’BRIEN and TUKEL, JJ.
PER CURIAM.
A jury convicted defendant of first-degree murder, MCL 750.316;1 and kidnapping, MCL
750.349(1)(c) (knowing restraint with intent to engage in criminal sexual penetration or criminal
sexual contact). The trial court sentenced defendant to life imprisonment for first-degree murder
and 18 years and 9 months to 40 years’ imprisonment for kidnapping. Defendant appeals as of
right. We affirm.
I. BASIC FACTS
Defendant’s convictions arise from the disappearance of Jessica Heeringa on April 26,
2013. That evening, Heeringa worked the closing shift at an Exxon gas station. She was last
seen by a customer whose receipt was timestamped at 10:52 p.m. At approximately 11:00 p.m.,
two witnesses saw a silver minivan outside the backdoor to the gas station. As they watched, the
van’s back hatch opened and closed, and then the van drove away. At 11:14 p.m., a customer
called 911 after finding the gas station open—unlocked and lights on—but deserted.
1
The jury convicted defendant of first-degree murder on two theories: premeditation, MCL
750.316(1)(a); and felony-murder, MCL 750.316(1)(b). His judgment of sentence states that his
murder conviction is for one count of first-degree murder supported by two theories.
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When police arrived, Heeringa’s belongings, including her coat, purse, and wallet with
$400 inside, were in the store, and her car was in the parking lot. Yet Heeringa was nowhere to
be found. Nothing appeared to have been stolen from the gas station, and it appeared that
Heeringa had been preparing the store for closing—there were signs that she had been cleaning
and closing out the till. Outside the store’s only backdoor, the police found some of Heeringa’s
blood, a battery cover to a laser sight for a Walther P22 pistol, and two watch batteries.
Heeringa’s body was never discovered. Authorities ran ongoing “proof of life” searches in
numerous databases over several years, but those searches never revealed any signs that
Heeringa was still alive. Testimony also suggested that she never would have left her three-year-
old son.
Acting on a tip that defendant owned a silver minivan, officers spoke to defendant in
2013, shortly after Heeringa’s disappearance. At that time, with defendant’s permission, officers
looked inside defendant’s van and noticed that the van had been recently cleaned. The police
attempted to contact defendant’s wife around the same time, but she never received their
recorded messages. Years later, officers would uncover mini-cassette recordings of the phone
messages hidden in a shed on defendant’s property.
On the night of Heeringa’s disappearance, defendant attended a card game at a shop near
the gas station. He drove his silver minivan to the game. According to cell phone records, later
that evening at 11:23 p.m., defendant was in the vicinity of an empty property—3038 Bailey—
that had passed to him after his grandfather’s death in 2011. Yet defendant told police that he
was home until 12:30 a.m. The Bailey property was 12 or 13 minutes from the Exxon station
where Heeringa disappeared. Defendant kept the property padlocked, and various cleaning
products, including bleach, were later found in the empty home’s basement.
According to testimony at trial, defendant’s coworkers also recalled defendant coming to
work with deep scratches on his face and arms shortly after Heeringa’s disappearance.
According to additional testimony at trial, the driver of the van seen behind the gas station on the
night of Heeringa’s disappearance was described by one of the witnesses as having “pretty”
“blond streaks” in his hair, and defendant was known to highlight his hair.
Although police spoke to defendant in 2013, he did not truly become a suspect in
Heeringa’s disappearance until 2016 when a driver in a silver minivan attempted to abduct a
teenage girl, MJN. According to MJN, while she was walking on the side of the road coming
home from a party, a man in a silver minivan pulled up next to her and asked if she needed a
ride. She asked to use the man’s cellphone, and the man told her that she could but asked her to
get into the van to do so. Once she was in the van, the man said his phone was dead. The man
then pointed a gun at her, and she escaped by leaping from the moving vehicle. MJN identified
defendant as the attempted abductor.
During a search of defendant’s van in 2016, police found a stolen Walther P22 pistol with
the serial number obscured. Police were able to restore the serial number and locate the owner,
who was defendant’s coworker. The owner testified that the gun had been stolen from her home.
She also testified that the gun had a laser sight when she purchased it. However, when the gun
was recovered by police, the laser sight was missing.
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According to the evidence at trial, defendant used the Walther P22 pistol to kill Rebekah
Bletsch, who was found shot to death on a road near her home.2 Bletsch’s DNA was found on
gloves and a vibrator in a locked toolbox. In a lockbox, which was also locked, Bletch’s DNA
was found on handcuffs. In that same lockbox, the police found the Walther P22 pistol.
Defendant’s DNA was also found on the gloves, the vibrator, and the gun. Both the toolbox and
lockbox were found in defendant’s van, and together the toolbox and lockbox comprised what
the prosecutor characterized as defendant’s “rape kit,” containing various items such as
handcuffs, rope, restraints, chains, sex toys, a gag, lubricating jelly, insulin, syringes, a human
anatomy diagram with injection points, gloves, Viagra, cameras, and bullets. Fingerprints, DNA
evidence, and defendant’s own admissions established defendant as the owner of the toolbox and
lockbox. Officers found a note at 3038 Bailey of what the prosecutor characterized as a
“checklist” for many of the items in the toolbox. The note listed some additional items,
including items of women’s clothing such as a “hoodie,” which Heeringa often wore to work.
The note was confirmed to be in defendant’s handwriting.
The prosecutor introduced the events relating to MJN and Bletsch at trial as other-acts
evidence in an effort to establish that Heeringa’s disappearance was part of defendant’s common
scheme or plan to kidnap, sexually assault, and murder young women.
In addition to the other-acts evidence, forensic computer analysis of defendant’s devices
uncovered “vics” folders with subfolders specific to Heeringa and Bletsch; the folders were
labeled by Bletsch’s and Heeringa’s initials and the respective dates of the crimes against them.
The folder relating to Heeringa contained photographs of Heeringa as well as a “missing
kidnaped” flyer that circulated after her disappearance. In another folder, defendant saved a
news article relating to Heeringa’s disappearance. A document listing defendant’s computer
passwords revealed that defendant’s password for many of his accounts was J4l27H13—
Heeringa’s initials (JLH) and the number 42713 (the day after Heeringa’s disappearance). The
prosecutor theorized that 4-27-13 was the actual date of Heeringa’s death. In addition to the
information specific to Heeringa and Bletsch, defendant’s computer contained thousands of
pornographic images and videos depicting the abduction, restraint, rape, and murder of women,
using many of the same objects found in defendant’s van (like restraints and gags). Defendant
also had numerous homemade, voyeuristic videos featuring women and young girls filmed
without their knowledge in public places, in their homes, and at swim events.
On the basis of this and other evidence, the prosecutor argued that Heeringa had been
kidnapped from the gas station and killed by defendant. The prosecutor maintained that
defendant’s motive and intent in kidnapping Heeringa was to engage in criminal sexual
penetration or criminal sexual contact. See MCL 750.349(1)(c). The jury convicted defendant
as stated. Defendant now appeals as of right.
2
In a separate trial relating to Bletsch, defendant was convicted of first-degree murder and
felony-firearm, MCL 750.227b.
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II. OTHER-ACTS EVIDENCE
On appeal, defendant first argues that the trial court abused its discretion by admitting
other-acts evidence under MRE 404(b). Defendant challenges the admission of evidence relating
to Bletsch, MJN, the theft of the gun from defendant’s coworker, the pornography, the
voyeuristic videos, a serial-killer list found in a shed on defendant’s property, the “vics” folders
on defendant’s computer, and other miscellaneous evidence, including the purchase of a safe and
evidence discovered in his van in 2016. Defendant maintains that the evidence was not relevant
to establishing a common plan or scheme, that it could not be offered to complete the story of his
crimes, and that he is entitled to a new trial because the evidence was unfairly prejudicial and
incredibly harmful to his defense.
Defendant preserved his evidentiary arguments by objecting to the admission of the
other-acts evidence in the trial court. See People v Aldrich, 246 Mich. App. 101, 113; 631 NW2d
67 (2001). We review a trial court’s decision to admit evidence for an abuse of discretion.
People v Benton, 294 Mich. App. 191, 195; 817 NW2d 599 (2011). “An abuse of discretion
occurs when the trial court reaches a result that is outside the range of principled outcomes.” Id.
“[A] trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of
discretion.” People v Hine, 467 Mich. 242, 250; 650 NW2d 659 (2002). Preliminary questions
of law regarding the admissibility of evidence, including those relating to application of the rules
of evidence, are reviewed de novo. People v King, 297 Mich. App. 465, 472; 824 NW2d 258
(2012). “A preserved trial error in admitting or excluding evidence is not grounds for reversal
unless, after an examination of the entire cause, it affirmatively appears that it is more probable
than not that the error was outcome determinative.” Id.
Defendant challenges the admission of other-acts evidence under MRE 404(b)(1), which
states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
“MRE 404(b) governs but does not prohibit all evidence of other acts that risks this character-to-
conduct inference; the rule is not exclusionary, but is inclusionary, because it provides a
nonexhaustive list of reasons to properly admit evidence that may nonetheless also give rise to an
inference about the defendant’s character.” People v Jackson, 498 Mich. 246, 259; 869 NW2d
253 (2015) (quotation marks and citation omitted). The Michigan Supreme Court summarized
the framework for admitting evidence under MRE 404(b) as follows:
First, the prosecutor must offer the other acts evidence under something other
than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third, under MRE 403, a determination
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must be made whether the danger of undue prejudice substantially outweighs the
probative value of the evidence in view of the availability of other means of proof
and other facts appropriate for making decision of this kind under Rule
403. Finally, the trial court, upon request, may provide a limiting instruction
under MRE 105. [People v Sabin (After Remand), 463 Mich. 43, 55-56; 614
NW2d 888 (2000) (quotation marks and some citation omitted) (brackets
omitted).]
A. BLETSCH AND MJN
The trial court admitted evidence relating to Bletsch’s murder and MJN’s abduction as
relevant to establishing that, when defendant abducted and killed Heeringa, he was carrying out a
common scheme, plan, or system. The trial court’s decision was not an abuse of discretion.
Under the MRE 404(b) framework, the prosecutor bears the “initial burden to show that
the proffered evidence is relevant to a proper purpose under the nonexclusive list in MRE
404(b)(1) or is otherwise probative of a fact other than the defendant’s character or criminal
propensity.” People v Mardlin, 487 Mich. 609, 615-616; 790 NW2d 607 (2010). Relevance
requires consideration of both materiality and probative value. People v Crawford, 458 Mich.
376, 388-390; 582 NW2d 785 (1998). “[E]vidence of similar misconduct is logically relevant to
show that the charged act occurred where the uncharged misconduct and the charged offense are
sufficiently similar to support an inference that they are manifestations of a common plan,
scheme, or system.” Hine, 467 Mich. at 251. “General similarity between the charged and
uncharged acts does not, however, by itself, establish a plan, scheme, or system used to commit
the acts.” Sabin (After Remand), 463 Mich. at 64. “The added element, then, must be, not merely
a similarity in the results, but such a concurrence of common features that the various acts are
naturally to be explained as caused by a general plan of which they are the individual
manifestations.” Id. at 64-65 (quotation marks, citation, and emphasis omitted).
The trial court characterized the common scheme as a “plan to abduct and assault
vulnerable young females in isolated areas in this county with the same gun.” The trial court
reviewed the facts of each offense, emphasizing that the crimes were committed while the
women were isolated and alone, that the victims were all young women, that the events occurred
in the same county in a three-year period, and that there was evidence that the same Walther
pistol was used in each offense. The trial court also noted that part of defendant’s plan or
scheme included keeping “mementos of his victims” insofar as he had “vics” folders on his
computer relating to Bletsch and Heeringa, and he used computer passwords associated with
Heeringa and her death. Additionally, the evidence suggests that defendant used his van to carry
out the scheme insofar as Heeringa was taken away in a van, MJN escaped abduction by jumping
from his van, and Bletsch was found shot on the side of the road in an isolated location,
supporting the inference that defendant drove to that location.
Considering the similarities, the trial court did not err by determining that the other-acts
evidence was relevant to whether Heeringa’s disappearance was a manifestation of defendant’s
common plan. This is true even if defendant’s plan to abduct isolated women at gunpoint and
take them away in his van is not particularly distinctive or unusual and there were some
dissimilarities between the cases—“a high degree of similarity is not required, nor are distinctive
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or unusual features required to be present in both the charged and the uncharged acts.” People v
Steele, 283 Mich. App. 472, 480; 769 NW2d 256 (2009). It is enough that the evidence of the
uncharged acts supports the inference that defendant employed a common plan in committing the
charged offense against Heeringa. See Hine, 467 Mich. at 252-253. Given the similarities
between the cases, the trial court did not abuse its discretion by concluding that the evidence
relating to Bletsch and MJN was logically relevant to establishing a common plan, scheme, or
system. See Sabin (After Remand), 463 Mich. at 66-68.
Contrary to defendant’s arguments, the trial court also did not abuse its discretion by
declining to exclude the evidence under MRE 403. “Rule 403 does not prohibit prejudicial
evidence; only evidence that is unfairly so. Evidence is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.” Crawford, 458 Mich. at 398. The other-acts evidence establishing that defendant was
engaged in a common scheme to abduct Heeringa at gunpoint was highly probative on the
significant questions whether defendant kidnapped and murdered Heeringa, whether he acted
with premeditation and deliberation, and, for the felony-murder charge, whether he killed her in
the course of committing a kidnapping. Indeed, when addressing the question of prejudice, the
trial court emphasized the need for the other-acts evidence to establish defendant’s plan given
that there were no eyewitnesses to Heeringa’s abduction. Recognizing that there was a potential
for prejudice should the jury use the evidence for propensity purposes, the trial court
nevertheless found that this potential did not substantially outweigh the probative value of the
other-acts evidence given the similarity of the three crimes, particularly when all the events
occurred in close temporal proximity in the same county. The trial court also emphasized the
reliability of the other-acts evidence, noting that the evidence consisted, in large part, of reliable
physical evidence. See People v Watkins, 491 Mich. 450, 487; 818 NW2d 296 (2012)
(identifying the need for the other-acts evidence, the similarity between the acts, the temporal
proximity of the acts, and the reliability of the other-acts evidence as considerations relevant to
an MRE 403 analysis).
“The trial court is in the best position to make MRE 403 determinations on the basis of a
contemporaneous assessment of the presentation, credibility, and effect of testimony.” Mardlin,
487 Mich. at 627 (quotation marks, citation, and alterations omitted). On the facts of this case,
the trial court did not abuse its discretion by determining that the danger of unfair prejudice did
not substantially outweigh the probative value of the evidence. Further, the trial court minimized
the potential for prejudice by instructing the jury on the use of other-acts evidence, prohibiting
the jury from using the evidence to decide that defendant was a “bad person” or “likely to
commit crimes,” and informing the jurors that they could not convict defendant because the
jurors believed he was “guilty of other bad conduct.” See People v Orr, 275 Mich. App. 587, 593;
739 NW2d 385 (2007). Overall, the trial court did not abuse its discretion by admitting other-
acts evidence relating to Bletsch’s murder and MJN’s abduction.
B. THEFT OF THE GUN
In the context of his MRE 404(b) argument on appeal, defendant mentions the theft of the
gun from his coworker, noting that the prosecutor offered this evidence to “complete the story.”
Elsewhere defendant notes that there is no res gestae exception to MRE 404(b), and he asserts
that “complete the story” evidence must be logically relevant to show a common plan or
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scheme.3 It is somewhat unclear from these passing and disconnected statements whether
defendant intends to challenge the admission of the evidence relating to the theft of gun on
appeal. By failing to adequately brief the issue, he may be considered to have abandoned it. See
People v McGraw, 484 Mich. 120, 131 n 36; 771 NW2d 655 (2009).
Regardless, the trial court did not abuse its discretion by admitting evidence about the
theft of the gun and associated theft of the coworker’s underwear under MRE 404(b). Although
Jackson, 498 Mich. at 265-276, clarified that there is no res gestae exception to MRE 404(b), the
Court did not categorically preclude admission of evidence to complete the story of an offense.
Instead, the Jackson Court determined that “complete the story” other-acts evidence is
admissible only if it satisfies MRE 404(b). See id. at 276 n 11 (recognizing that evidence of
other acts may “prove relevant and necessary to ‘complete the story’ of the charged conduct and
the defendant’s guilt”) (citation omitted). Defendant’s possession of the gun—and the manner in
which he obtained the gun, including the closely-related theft of his coworker’s underwear,
which she kept next to where she stored the gun and on which defendant’s DNA was
discovered—completed the story of the offense. The coworker originally had a laser sight on her
Walther P22 pistol that was specifically designed to fit that type of pistol. But when the gun was
discovered in defendant’s van, the laser sight was no longer attached. At the scene of Heeringa’s
disappearance, officers found blood, the battery cap for a Walther laser sight, and watch-style
batteries of the type used to power the laser. Thus, defendant’s theft of the gun was directly—
and highly—probative of his identity as the kidnapper and killer. Cf. People v Hall, 433 Mich.
573, 580-581; 447 NW2d 580 (1989) (“Evidence of a defendant’s possession of a weapon of the
kind used in the offense with which he is charged is routinely determined by courts to be direct,
relevant evidence of his commission of that offense.”); People v Parker, 76 Mich. App. 432, 450;
257 NW2d 109 (1977) (“Determination of the source of a weapon in a murder prosecution is
relevant to the case . . . .”) (quotation marks and citation omitted). Moreover, that defendant
stole the weapon, failed to register it, and obliterated its serial number were all relevant to
assessing defendant’s premeditated plan to avoid detection. See generally People v McGhee,
268 Mich. App. 600, 613; 709 NW2d 595 (2005) (concluding that other-acts evidence relating to
attempts to avoid capture was admissible). Given the significant probative value of this
evidence, its admission was not substantially outweighed by the danger of unfair prejudice, so
the trial court did not abuse its discretion by declining to exclude evidence relating to the theft of
the gun under MRE 403.
C. PORNOGRAPHY, VOYEURISTIC VIDEOS, & SERIAL-KILLER LIST
Defendant also argues that computer evidence relating to pornography and homemade,
voyeuristic videos should not have been admitted because Heeringa did not appear in the videos
3
Contrary to defendant’s assertion that evidence offered to complete the story must evince a
common plan, MRE 404(b) sets forth a nonexhaustive list of proper purposes, and although there
must be “at least one proper noncharacter-based inference linking the prior act to the ultimate
inference,” Crawford, 458 Mich. at 390 n 8, there is no requirement that the evidence establish a
common plan or scheme.
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and it was uncertain if the videos were created before Heeringa’s disappearance, so there was no
basis for concluding that the videos were evidence of planning or preparation. Elsewhere in his
brief, separate from his MRE 404(b) argument, defendant asserts that these materials “gave the
impression” that defendant was “a despicable and creepy human being who must have been
involved in Ms. Heeringa’s disappearance and murder.”
In challenging the admission of the pornography and voyeuristic videos, defendant
focuses mainly on the timing of when these videos were created or discovered as part of a larger
argument that events occurring after Heeringa’s disappearance could not be considered as
evidence of planning or preparation in connection with Heeringa. But whether the videos
constitute subsequent or prior bad acts is not dispositive because MRE 404(b), by its very
language, allows for admission of other acts that “are contemporaneous with, or prior or
subsequent to the conduct at issue in the case.” Thus, defendant’s timing argument lacks merit.
Aside from his timing argument, defendant’s briefing in connection with the pornography
and voyeuristic videos is rather cursory. In his other-acts discussion, defendant provides a
laundry list of evidence, including the videos, which he maintains had no bearing on the question
of planning or preparation. But defendant fails to acknowledge that the prosecutor identified
motive and intent as proper purposes for the admission of the videos under MRE 404(b); he does
not adequately address the videos’ prejudice under MRE 403; and he fails to provide a
discussion whether admission of the video evidence would entitle him to relief on appeal because
it is more probable than not that any error in the admission of the videos was outcome-
determinative. By lumping the pornographic and voyeuristic video evidence with all the other
evidence admitted under MRE 404(b) and failing to address the admissibility of the video
evidence in particular, defendant has failed to adequately brief the issue. See generally People v
Kelly, 317 Mich. App. 637, 648 n 6; 895 NW2d 230 (2016) (recognizing that, when there are
multiple pieces of other-acts evidence, each other act must be considered separately to determine
whether all, some, or none of the evidence is admissible). Given defendant’s cursory treatment
of the issue, we could conclude that defendant abandoned his challenge to the admission of the
pornographic and voyeuristic videos. See People v Matuszak, 263 Mich. App. 42, 59; 687 NW2d
342 (2004).
Even if we consider the admissibility of this evidence, defendant still would not be
entitled to relief on appeal.
Relevant to the admission of the pornography, “lustful disposition” evidence or evidence
of a “propensity toward sexual deviancy” is not admissible under MRE 404(b) for proving a
defendant’s character to show that he acted in conformity therewith to commit the charged
offense. See Sabin (After Remand), 463 Mich. at 68; People v Watson, 245 Mich. App. 572, 580-
582; 629 NW2d 411 (2001). Pornographic evidence, such as photographs depicting nudity, often
raises concerns that the evidence is improper lustful-disposition evidence. See People v
Engelman, 434 Mich. 204, 221-224; 453 NW2d 656 (1990); Watson, 245 Mich. App. at 580-582.
However, MRE 404(b) does not categorically prohibit the admission of pornographic evidence.
As with any other-acts evidence, the admissibility of the pornographic evidence turns on whether
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there is a proper purpose other than establishing a character trait such as sexual deviancy for the
admission of the evidence.4 See Engelman, 434 Mich. at 221-224; Watson, 245 Mich. App. at
580-582. “The relationship of the elements of the charge, the theories of admissibility, and the
defenses asserted governs what is relevant and material.” People v VanderVliet, 444 Mich. 52,
75; 508 NW2d 114 (1993), amended by 445 Mich. 1205 (1994).
The prosecutor asserted that the pornographic videos—in conjunction with other
evidence such as the toolbox—were relevant to defendant’s motive and intent to sexually assault
Heeringa, Bletsch, and MJN. The prosecutor argued that defendant essentially used the
abduction videos as “research” for his common plan, and that this research and his gathering of
tools (many of which were depicted in the pornographic videos) was part of his planning and
preparation for the abduction, sexual assault, and murder of young women. The trial court
admitted evidence of the pornographic videos, but it excluded mention of necrophilia and torture,
and the court did not allow testimony on a specific video described as a “roadside” abduction
video. Although the prosecutor identified motive and intent as proper purposes, the jury was
instructed on intent, but not motive. We conclude that the trial court did not abuse its discretion
by admitting the pornographic videos under MRE 404(b) as proof of defendant’s intent.
Defendant was charged with first-degree murder involving a kidnapping. To convict
defendant on the kidnapping charge, the prosecution had to prove that defendant knowingly
restrained Heeringa with “the intent to” “[e]ngage in criminal sexual penetration or criminal
sexual contact” with her. MCL 750.349(1)(c). “A statute that requires a prosecutor to prove that
the defendant intended to perform the criminal act creates a general intent crime. A statute that
requires proof that the defendant had a particular criminal intent beyond the act done creates a
specific intent crime.” People v Herndon, 246 Mich. App. 371, 385; 633 NW2d 376 (2001). That
this case involves a specific intent crime is significant because what might otherwise be improper
sexual proclivity evidence (if offered to prove the commission of a general-intent criminal sexual
conduct (CSC) offense) instead serves a proper noncharacter purpose. That is, defendant’s
sexual intent is material because the prosecutor was required to show that defendant had the
specific intent to engage in criminal sexual penetration or criminal sexual contact with Heeringa.
See MCL 750.349(1)(c). Compare Sabin (After Remand), 463 Mich. at 68 (concluding “lustful
disposition” evidence pertaining to individuals other than the victim was not admissible to prove
general intent required for first-degree CSC), with People v Novak, 489 Mich. 941, 941-942
(2011) (MARKMAN, J., concurring) (concluding that the “minor child incest” story written by the
defendant was admissible under MRE 404(b) when defendant had been charged with engaging in
“sexual contact” requiring “intentional touching . . . for the purpose of sexual arousal or
gratification”). Overall, in the context of the charges against defendant, the pornographic videos
featuring abductions, sexual assaults, and murders—including both videos of women who
resembled Heeringa and videos in which the items found in defendant’s van were utilized—were
4
Defendant is correct that there is no suggestion that Heeringa appeared in any of the videos
found on defendant’s electronic devices. But that she is not in the videos does not end the MRE
404(b) inquiry. The initial question remains whether the prosecutor has identified a proper,
noncharacter purpose for the evidence. See generally Engelman, 434 Mich. at 221-224.
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relevant to establishing that defendant restrained Heeringa with “the intent to” engage in criminal
sexual penetration or criminal sexual conduct. See MCL 750.349(1)(c). In short, the evidence
was logically relevant for a proper purpose under MRE 404(b).
Under MRE 403, the probative value of the pornographic evidence was not substantially
outweighed by unfair prejudice. None of the videos were actually played for the jury. Instead, a
general description of the videos’ content was given by the forensic analysist who examined
defendant’s electronic devices. The trial court further limited the prejudicial effect by excluding
evidence of videos involving (1) necrophilia and (2) gruesome torture. The trial court also
prevented the prosecutor from describing any particular video in detail, explicitly excluding any
description of the “roadside abduction” video. Given the trial court’s efforts to limit the
evidence’s prejudicial effect, and considering the videos’ probative value for whether defendant
restrained Heeringa with intent to commit criminal sexual penetration or contact, there was no
danger that marginally probative evidence would be given undue or preemptive weight by the
jury. See Crawford, 458 Mich. at 398. Accordingly, MRE 403 did not require exclusion of the
evidence. And, as noted earlier, the trial court limited any prejudice by instructing the jury on
the proper use of other-acts evidence, which further alleviated any prejudice. See Orr, 275 Mich
App at 593. Defendant has not shown that the trial court abused its discretion by admitting the
pornographic videos.
Whether evidence of the voyeuristic videos made by defendant was similarly admissible
under MRE 404(b) poses a closer question. In seeking to introduce this evidence the prosecutor
failed to explain with any specificity how the homemade videos were relevant under MRE
404(b), and the purpose of the voyeuristic videos is not readily apparent when it appears that
none of the videos depicted Heeringa or defendant’s other victims, there is no indication that
defendant similarly filmed the victims in their homes or in public locations, and the videos made
by defendant do not depict abductions, sexual assaults, murder, or other similar conduct that
would be relevant to his intent in kidnapping Heeringa or any other proper purpose under MRE
404(b). It is the prosecutor’s “initial burden to show that the proffered evidence is relevant to a
proper purpose under the nonexclusive list in MRE 404(b)(1) or is otherwise probative of a fact
other than the defendant’s character or criminal propensity.” Mardlin, 487 Mich. at 615-616.
But the prosecutor failed to present a theory of relevancy that would warrant admission of the
voyeuristic evidence under MRE 404(b), so it should have been excluded. See Crawford, 458
Mich. at 390 (“If the prosecutor fails to weave a logical thread linking the prior act to the ultimate
inference, the evidence must be excluded, notwithstanding its logical relevance to character.”).
Likewise, evidence of the serial-killer list (the admission of which defendant challenges
on appeal) should likely not have been admitted at trial. This list of serial killers was found in a
shed on defendant’s property, as stated earlier. The list contains a handwritten hash mark next to
the names Lawrence Bittaker and Roy Norris, who according to testimony at trial were known as
the “toolbox killers.” The handwritten hash mark states that “Lawrence Bittaker and Roy Norris:
kidnapped, tortured, raped and murdered five girls in 1979.” The prosecutor asserted in the
lower court that the list was evidence of defendant’s research and planning, including his
inspiration for buying a van. But as defendant points out, the serial-killer list was not printed by
defendant until September 26, 2014, after Heeringa’s disappearance and several months after
defendant purchased his van. Without any indication that defendant viewed the list before
buying his van, it is challenging to see how the list could have served as the inspiration for his
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van purchase. Moreover, the list contains no indication that Bittaker and Norris used a van or
even that they were the “toolbox killers.” We therefore fail to see how the list could be evidence
of defendant’s research and planning, or how it inspired defendant to buy the van. The
prosecutor did not otherwise identify a reason for the list’s relevance, MRE 401, or what proper
purpose there could be for admitting the evidence under MRE 404(b).
Even though the serial-killer list and voyeuristic videos should not have been admitted,
defendant is not entitled to relief. After an examination of the entire case, it does not
affirmatively appear more probable than not that the errors were outcome-determinative. See
King, 297 Mich. App. at 472. In this respect, it bears emphasizing that, although the forensic
computer analysist provided a description of the videos, defendant’s voyeuristic videos were not
played for the jury at the trial. Generally speaking, an oral description may be considered less
likely to excite passion and prejudice than the actual photographs or images. See People v Mills,
450 Mich. 61, 76-77; 537 NW2d 909 (1995), mod 450 Mich. 1212 (1995). That the videos were
not shown to the jury reduced the amount of prejudice caused to defendant. The trial court
further limited the prejudice of this evidence by excluding testimony from one of the women
whom defendant filmed without permission. The oral description of defendant’s voyeuristic
videos was also relatively brief. Testimony of the serial-killer list was likewise relatively brief
and isolated.
In contrast to the brief erroneously admitted testimony, there was strong untainted
evidence that defendant kidnapped and murdered Heeringa as part of a common plan or scheme
to abduct, sexually assault, and murder young women. The forensic evidence—including DNA
and ballistics—overwhelmingly established that defendant killed Bletsch. Defendant’s van as
shown in the blueberry farm videos as well as MJN’s identification of defendant and defendant’s
own admissions conclusively linked him to MJN’s abduction. And the circumstantial
evidence—including the battery cap for the laser sight for a Walther P22 pistol found at the gas
station, defendant’s possession of a Walther P22 pistol missing its previously attached laser
sight, defendant’s theft of a Walther P22 pistol shortly before Heeringa’s disappearance, the type
of van used in Heeringa’s abduction, evidence that defendant cleaned his van and came to work
with scratches shortly after Heeringa’s disappearance, defendant’s decision to keep and conceal
items such as the cassettes tapes of police phone calls that defendant hid in his shed, defendant’s
close proximity to the gas station on the night of Heeringa’s disappearance, defendant’s visit to
the vacant Bailey property after 11:00 p.m. on the night of Heeringa’s disappearance,
defendant’s “rape kit” in his van and the checklist found at the Bailey home, the “vics” folders
on his computer, and defendant’s computer passwords centered on Heeringa’s death—strongly
supported the conclusion that Heeringa’s disappearance was another manifestation of
defendant’s plan to abduct, sexually assault, and murder young women. In context, considering
the admission of the voyeuristic videos and serial-killer list “in light of the weight and strength of
the untainted evidence,” defendant has not shown that it is more probable than not that the error
was outcome-determinative. People v Lyles, 501 Mich. 107, 118; 905 NW2d 199 (2017)
(quotation marks and citation omitted). Overall, given the properly admitted other-acts evidence
and the other strong untainted evidence of defendant’s guilt, it seems highly unlikely that the
jury’s verdict was influenced by the brief testimony of improperly admitted evidence. Defendant
is therefore not entitled to relief.
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D. MISCELLANEOUS EVIDENCE
Finally, in the course of his MRE 404(b) argument, defendant mentions other
miscellaneous pieces of evidence, including his purchase of a safe in the spring of 2014, the
“vics” files and Heeringa files on his computer, and the police visit to his home in 2013 during
which they looked in his van. Much of this evidence, like the purchase of the safe and
defendant’s clean van in 2013, does not implicate MRE 404(b) because the purchase of a safe
and having a clean van is not the type of bad character evidence that would give rise to an
improper propensity inference. See Crawford, 458 Mich. at 384 (“Underlying the rule is the fear
that a jury will convict the defendant inferentially on the basis of his bad character rather than
because he is guilty beyond a reasonable doubt of the crime charged.”). Moreover, much of the
evidence that defendant contests as character evidence is not subject to MRE 404(b) scrutiny.
For instance, evidence of the “vics” folder and defendant’s using of passwords associated with
Heeringa does not seem to be conduct objectionable under MRE 404(b) because it was directly
relevant to whether defendant was involved with the kidnapping and death of Heeringa. See
Jackson, 498 Mich. at 262 (explaining that “acts comprised by or directly evidencing the
‘conduct at issue’ are not subject to scrutiny under MRE 404(b)”). That defendant labeled a
folder “vics,” and then listed Heeringa with the date of her disappearance tends to make it more
likely than not that her disappearance was linked to being a victim of some act by defendant.
And defendant’s making his passwords Heeringa’s initials and the date after her disappearance,
combined with the evidence that authorities never found any “proof of life” for Heeringa despite
continuous searches, tends to make it more likely than not that defendant knew that Heeringa
died the day after she disappeared.
Regardless, the evidence that defendant points to is related to his timing argument. He
asserts that events after Heeringa’s death are not evidence of planning or preparation for
purposes of establishing a common plan under MRE 404(b). More generally, defendant seems to
suggest that evidence of what he considers subsequent conduct—including evidence discovered
after MJN’s attempted kidnapping like the gun, the evidence in the van, and the “vics” folders
and password information on his computer—is not relevant to whether defendant previously
kidnapped and murdered Heeringa.
Defendant’s timing argument is without merit because evidence of subsequent other-acts
is admissible under the plain language of MRE 404(b), which allows admission of “other crimes,
wrongs, or acts [that] are contemporaneous with, or prior or subsequent to the conduct at issue in
the case.” And more generally, evidence of defendant’s conduct after Heeringa’s death can be
relevant and admissible in this homicide prosecution notwithstanding that the conduct occurred
after Heeringa’s death. See People v Paquette, 214 Mich. App. 336, 342; 543 NW2d 342 (1995)
(“Defendant’s conduct after the killing is relevant to a determination whether there was
premeditation and deliberation sufficient for a finding of first-degree murder.”). In short,
evidence relating to Bletsch and MJN, and evidence discovered after MJN’s attempted
kidnapping that was relevant to establishing defendant’s commission of the crimes charged, was
not inadmissible under MRE 404(b) merely because Heeringa was killed first.
As a related matter, there is no merit to defendant’s assertion that his crimes against
Heeringa could not have been part of a common scheme because some of defendant’s acts—like
purchasing the safe to hold his gun and other supplies—occurred after her death. As noted, a
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common scheme does not require “a high degree of similarity,” “nor are distinctive or unusual
features required to be present in both the charged and the uncharged acts.” Steele, 283 Mich
App at 480. For example, defendant did not need to store his gun in the same safe5 before
committing all the offenses in order for the prosecution to prove that the crimes against
Heeringa, Bletsch, and MJN “had a concurrence of common features so that the charged acts and
the other acts are logically seen as part of a general plan, scheme, or design.” Id. Defendant’s
arguments to the contrary are without merit.
III. JURY PARTIALITY
Defendant argues that the trial court abused its discretion by denying defendant’s motion
to change venue because of defendant’s fear that he could not receive an impartial jury due to the
case’s “egregious and far reaching” pretrial publicity. In the alternative, defendant asserts that
defense counsel provided ineffective assistance by failing to strike partial jurors. We disagree.
At the outset, we note that the circumstances in this case are similar to People v Clark,
243 Mich. App. 424, 425-426; 622 NW2d 344 (2000), wherein this Court explained:
Defendant first argues that the trial court erred in denying his motion to
change venue, which was brought on the basis of prejudicial pretrial publicity.
However, we conclude that defendant has waived review of this issue. Defense
counsel moved for a change of venue before trial. The trial court denied the
motion without prejudice, stating that it was willing to reconsider the motion at
any time during the jury selection process. A thorough jury selection process
ensued, which included lengthy juror questionnaires, the participation of the
attorneys in voir dire, and sequestered questioning of each potential juror.
Defense counsel never renewed the motion for a change of venue, but, rather,
expressed satisfaction with the jury after the jury selection process was
completed. Defense counsel’s failure to renew the motion and his expression of
satisfaction with the jury waived the change of venue issue.
Like the Clark defendant, defendant here waived review of his motion to change venue.
Before trial, defendant filed a motion to change venue or for modified voir dire. The trial court
granted defendant’s request for modified voir dire, and consistent with defendant’s requests for
modified voir dire, the jury selection in this case included (1) use of written questionnaires about
the potential jurors’ preexisting knowledge of the case, (2) extensive questioning by the
attorneys, and (3) sequestered questioning of each potential juror while the remaining jurors
waiting in the “jury assembly room.” Jury selection involved a larger than normal jury pool, and
the questioning by attorneys was thorough and extensive. At no time during or after these
modified procedures did defense counsel renew the motion to change venue. To the contrary, at
the end of voir dire, defense counsel affirmatively approved of the jury, stating “we’re satisfied.”
5
More generally, the fact that defendant purchased the locked safe in which the gun was found
was clearly relevant to establishing his dominion and control over the Walther P22 pistol.
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By agreeing to modified voir dire procedures, failing to renew his motion to change venue, and
then expressing satisfaction with a jury selected after thorough voir dire, defendant waived
review of his motion to change venue. See id.
Even if we reviewed defendant’s motion to change venue, he would not be entitled to
relief on appeal. “The right to a jury trial guarantees to the criminally accused a fair trial by a
panel of impartial indifferent jurors.” People v Jendrzejewski, 455 Mich. 495, 501; 566 NW2d
530 (1997). “The existence of pretrial publicity, standing alone, does not necessitate a change of
venue.” People v Cline, 276 Mich. App. 634, 639; 741 NW2d 563 (2007) (quotation marks and
citation omitted). Reversal is warranted if, under the totality of circumstances, the defendant’s
trial was not fundamentally fair. Jendrzejewski, 455 Mich. at 502. We conclude that, considering
the totality of the circumstances, defendant has not shown that he was denied an impartial jury,
particularly when the trial court employed modified voir dire procedures to address the question
of pretrial publicity, defense counsel did not seek to remove jurors despite having peremptory
challenges remaining, and the selected jurors indicated that they could be impartial. See
Jendrzejewski, 455 Mich. at 509; Cline, 276 Mich. App. at 638-639; see also People v Partee, 130
Mich. App. 119, 128; 342 NW2d 903 (1983).
We similarly find no merit to defendant’s contention that defense counsel provided
ineffective assistance during jury selection. “To establish ineffective assistance of counsel,
defendant must show (1) that defense counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms and (2) that there is a reasonable probability
that, but for counsel’s errors, a different outcome would have resulted.” People v Jackson, 292
Mich. App. 583, 600-601; 808 NW2d 541 (2011). Juror selection for a given case is a matter of
trial strategy, and requires attorneys to use their judgment to attain jurors they believe to be
“reasonable, fair, and honest.” People v Unger, 278 Mich. App. 210, 258; 749 NW2d 272 (2008).
See also People v Johnson, 245 Mich. App. 243, 259; 631 NW2d 1 (2001) (Opinion by
O’CONNELL, J.) (“[A]n attorney’s decisions relating to the selection of jurors generally involve
matters of trial strategy.”) Jurors are presumed competent and impartial, and the party alleging a
basis for disqualification bears the burden of proving it. People v Collins, 166 Mich. 4, 9; 131
N.W. 78, 80 (1911).
Defendant challenges defense counsel’s decision not to utilize peremptory challenges to
excuse five jurors. The jurors in question admitted exposure to some pretrial publicity or other
information about the case, but defendant has failed to establish that counsel’s choice to not use a
preemptory challenge for any of these jurors was objectively unreasonable as a matter of trial
strategy.
Juror MJ acknowledged that she had been exposed to some media accounts of the events
surrounding Heeringa’s disappearance and defendant’s alleged involvement, but she testified that
she could focus solely on the facts and evidence presented at trial when making her decision.
She also stated that she could give an “unbiased opinion,” unaffected by any past media
exposure, and that she had no opinions on whether defendant kidnapped Heeringa or whether
Heeringa was alive or dead. In light of her assurances that she could be impartial, we do not
believe that it was objectively unreasonable for defense counsel to not object to MJ sitting on the
jury panel.
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Juror SG went to Bletsch’s house a few times with his mother when he was a child, but
he denied that his mother had any “real” or “firm” friendship with the family, and specifically
denied that his mother’s former friendship would impact his decision. More generally, SG stated
that he could decide the case on the evidence, separate from anything he may have heard about
the case outside the courtroom, and that he would have no problem remaining fair and impartial.
“Perhaps the most important criteria in selecting a jury include a potential juror’s facial
expressions, body language, and manner of answering questions.” Unger, 278 Mich. App. at 258.
Moreover, this Court must “affirmatively entertain the range of possible reasons that counsel
may have had for proceeding as he or she did.” People v Gioglio (On Remand), 296 Mich. App.
12, 22; 815 NW2d 589 (2012), vacated in part on other grounds 493 Mich. 864 (2012) (citation
and quotation marks omitted). Defense counsel had the benefit of witnessing SG’s responses,
reading extensive jury questionnaires, and going through four days of voir dire to find jurors that
he believed could be reasonable, fair, and honest. In so doing, defense counsel was able to gauge
SG’s responses in person to determine whether he was being truthful when he said that he could
be impartial. By not objecting to SG, counsel appears to have determined that SG was being
honest. Moreover, defense counsel had the benefit of knowing who remained in the pool
available for selection, having had the opportunity to thoroughly examine the other potential
jurors. Defense counsel very well could have judged SG to be the most likely candidate to be
reasonable, fair, and honest. Because we will not substitute our judgment for that of defendant’s
counsel, People v Rockey, 237 Mich. App. 74, 76-77; 601 NW2d 887 (1999), counsel’s decision
to not object to SG was not objectively unreasonable trial strategy.
For similar reasons, we do not believe that defense counsel was ineffective for not
objecting to Juror MB. MB lived on the same road as Bletsch’s family and knew Bletsch’s
family, though he did not know Bletsch personally. He also had heard some information about
the case and that there was a guilty verdict in the Bletsch case. MB said that he thought that
Heeringa was “no longer with us” because she had not shown up, but he clarified that he had no
opinion on what may have happened to her. Though defense counsel could have objected to
MB, we do not see counsel’s choice to not do so as unreasonable. Again, defense counsel had
the benefit of seeing MB’s “facial expressions, body language, and manner of answering
questions.” Unger, 278 Mich. App. at 258. Merely living near and knowing Bletch’s family does
not establish that MB could not be impartial, particularly when he did not know Bletsch
personally. We have no reason to doubt that defense counsel was able to gauge whether MB
honestly believed he could be impartial, and having clearly concluded that he could, we have no
reason to second-guess defense counsel’s strategy in the selection of MB for the jury.
Juror PS disclosed that she happened to be in the courtroom awaiting her own civil trial
during defendant’s arraignment, but also stated that she did not remember what he was wearing
or what was said in court. PS also stated that she could put aside any outside information and
decide the case on the evidence, following the trial court’s instructions. We conclude that PS’s
simply being in the courtroom during defendant’s arraignment is not enough to establish that she
could not be impartial, especially given her assurances that she could not remember what was
said at the time and that she could be fair and impartial. Thus, defendant has not established that
PS should have been disqualified, or that defense counsel was ineffective for not using a
preemptory challenge to disqualify PS.
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Defendant lastly challenges defense counsel’s decision not to use a preemptory challenge
for Juror HM, who stated that it was her impression that “[f]rom the media’s perspective”
defendant was guilty, and that, on the basis of media reports, she thought it “more likely” that
defendant was guilty. However, she indicated that only “the evidence” could determine whether
someone was guilty and that she believed someone was innocent until proven guilty. Based on
HM’s opinions from the media reports, defense counsel sought to dismiss HM for cause. At that
point, the trial court questioned HM, and she agreed that the media was not always accurate and
that there were instances of incorrect reporting. HM also stated that she could put aside any
opinions she had previously formed and hold the prosecutor to his burden to prove defendant
guilty. On the basis of these assurances, the trial court denied defense counsel’s motion. During
additional questioning, HM again stated that she could be fair and impartial, that she could
follow the trial court’s instructions, and that she could “forget anything outside” the trial.
Defendant contends on appeal that HM’s statements about the media were “her true and honest
statements about the opinions that she had,” but, again, unlike defense counsel, “we cannot see
the jurors or listen to their answers to voir dire questions.” Unger, 278 Mich. App. at 258
(quotation marks and citation omitted). We presume that, based on defense counsel’s witnessing
HM’s responses, defense counsel credited HM’s statements that she could put aside media
reports and be a fair and impartial juror. In these circumstances, we will not second-guess this
judgment call by defense counsel. Rockey, 237 Mich. App. at 76-77.
In sum, while defendant complains of potential biases and preformed opinions, defendant
has not shown that defense counsel failed to exercise sound trial strategy to select what counsel
surely believed was a “reasonable, fair, and honest jury.” Cf. Unger, 278 Mich. App. at 257-258
(rejecting claim that counsel was ineffective for failing to challenge a potential juror who stated
that he could be fair and impartial but acknowledged that he had read newspaper accounts of the
case). See also Jendrzejewski, 455 Mich. at 515-516; Johnson, 245 Mich. App. at 259.
Lastly, defendant notes that during the sequestered phase of questioning about pretrial
publicity, a few of the potential jurors mentioned conversations about the case that were
occurring in the jury assembly room among potential jurors waiting to be questioned. Defendant
argues that, given these conversations, defense counsel should have requested a special
instruction to prevent conversations among potential jurors, and that counsel’s failure to do so
amounts to ineffective assistance. However, as discussed, the jurors were questioned extensively
about their knowledge of the case and their sources of that knowledge. The jurors chosen
indicated that they could be fair and impartial, that they could set aside outside information and
decide the case on the evidence presented, and that they could follow the trial court’s
instructions. The trial court instructed the chosen jurors not to discuss the case among
themselves until the jurors had heard all the evidence, and to not watch media accounts, conduct
research, or discuss the case with friends or family. Further, the trial court instructed the jury to
consider only “the evidence that was properly admitted” during trial. Jurors are presumed to
follow their instructions, People v Breidenbach, 489 Mich. 1, 13; 798 NW2d 738 (2011), and
these instructions were sufficient to protect defendant’s right to have the trial decided on the
evidence presented. On this record, given the instructions provided and the jurors’ assurances
that they could be impartial, defendant has not shown that counsel performed unreasonably by
failing to request a special instruction, and defendant has not shown a reasonable probability that
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a special instruction would have affected the outcome of the proceedings. Accordingly, his
ineffective assistance claim is without merit. See Jackson, 292 Mich. App. at 600-601.
IV. SEARCH OF ELECTRONIC DEVICES
Next, defendant maintains that the trial court erred by denying his motion to suppress the
evidence seized from his electronic devices. According to defendant, the evidence should have
been suppressed because the search warrant was overbroad, the affidavits failed to show
probable cause for the search of defendant’s electronic devices, and the good-faith exception to
the exclusionary rule did not apply. We disagree.
We review de novo a trial court’s ultimate decision on a motion to suppress. People v
Mahdi, 317 Mich. App. 446, 457; 894 NW2d 732 (2016). The trial court’s factual findings on a
motion to suppress are reviewed for clear error. Id. A finding of fact is clearly erroneous if,
after a review of the entire record, an appellate court is left with a definite and firm conviction
that a mistake has been made. Id. Whether the Fourth Amendment was violated and whether the
exclusionary rule applies are questions of law reviewed de novo. Id.
The United States and Michigan Constitutions protect against unreasonable searches and
seizures. US Const Am IV; Const 1963, art I, § 11. “A search or seizure is considered
unreasonable when it is conducted pursuant to an invalid warrant or without a warrant where the
police officer’s conduct does not fall within one of the specific exceptions to the warrant
requirement.” People v Hellstrom, 264 Mich. App. 187, 192; 690 NW2d 293 (2004).
“Ordinarily, if a warrant is determined to be invalid because it lacked a probable-cause basis or
was technically deficient in some other manner, any evidence seized pursuant to that warrant, or
seized subsequently as a result of the initial illegal search, is inadmissible as substantive
evidence in related criminal proceedings.” Id. at 193.
However, there are exceptions to the exclusionary rule, including the good-faith
exception adopted by the Michigan Supreme Court in People v Goldston, 470 Mich. 523, 526;
682 NW2d 479 (2004). In adopting the good-faith exception, the Court explained that “[t]he
purpose of the exclusionary rule is to deter police misconduct,” id., and “the goal of the
exclusionary rule would not be furthered where police officers act in objectively reasonable
good-faith reliance on a search warrant,” id. at 538. Under the good-faith exception, searches
“pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant
issued by a magistrate normally suffices to establish that a law enforcement officer has acted in
good faith in conducting the search.” Hellstrom, 264 Mich. App. at 197 (quotation marks and
citation omitted). However, there are times when an officer will have no reasonable grounds for
believing that the warrant was properly issued. See id. As summarized by this Court:
Reliance on a warrant is reasonable even if the warrant is later invalidated
for lack of probable cause, except under three circumstances: (1) if the issuing
magistrate or judge is misled by information in the affidavit that the affiant either
knew was false or would have known was false except for his or her reckless
disregard of the truth; (2) if the issuing judge or magistrate wholly abandons his
or her judicial role; or (3) if an officer relies on a warrant based on a “bare bones”
affidavit so lacking in indicia of probable cause as to render official belief in its
-17-
existence entirely unreasonable. [People v Czuprynski, 325 Mich. App. 449, 472;
926 NW2d 282 (2018) (citation omitted).]
The good-faith exception may also not apply when, “depending on the circumstances of the
particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to
be searched or the things to be seized—that the executing officers cannot reasonably presume it
to be valid.” United States v Leon, 468 U.S. 897, 923; 104 S. Ct. 3405; 82 L. Ed. 2d 677 (1984).
When ruling on a motion to suppress, a court is not required to first evaluate the validity
of a warrant, but may instead choose to “ ‘turn[] immediately to a consideration of the officers’
good faith.’ ” Hellstrom, 264 Mich. App. at 199, quoting Leon, 468 U.S. at 925. “[T]he good-faith
exception, turning as it does on objective reasonableness, should not be difficult to apply in
practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be
able to establish objective good faith without a substantial expenditure of judicial time.”
Hellstrom, 264 Mich. App. at 197-198 (quotation marks and citation omitted).
When the trial court ruled on defendant’s motion to suppress, it did not address the
validity of the warrant, and instead turned immediately to the question of good faith. It
determined that the officers conducting the search of defendant’s home and electronic devices
acted in good-faith reliance on the warrant. For the reasons explained below, the trial court’s
reasoning was sound. Defendant has not shown clear error in the trial court’s factual findings,
and those findings support the trial court’s conclusion that the exclusionary rule does not apply.
Undisputedly, the police had a warrant for the search, and this is not a case where officers
lacked reasonable grounds for believing the warrant was valid. See id. at 199. There is no
indication that the affidavits contained false information, and there is no suggestion that the
judge signing the warrant abandoned his judicial role. See Czuprynski, 325 Mich. App. at 472.
Moreover, the warrant was not facially deficient; it specified the place to be searched and
provided a detailed list of the items to be seized, including electronic devices. See Leon, 468 U.S.
at 923.
Further, the affidavits were detailed, and cannot be described as “bare bones.” See
Czuprynski, 325 Mich. App. at 472. The warrants were issued after defendant attempted to kidnap
MJN, and defendant’s main challenge to the warrant is his belief that MJN’s kidnapping had no
connection with electronic devices. But in the affidavit in support of the warrant, Detective Matt
Schultz specified, on the basis of his knowledge and experience, that individuals engaging in
these types of behaviors (kidnapping) tend to follow media reports about their crimes, which the
trial court aptly recognized are likely to be stored electronically. Cf. Hellstrom, 264 Mich. App. at
199 & n 7 (applying good-faith exception when affiant had personal knowledge that “pedophiles
generally possess pornographic images” and noting that “[a]n affiant’s representations based on
his experience can be considered in determining whether probable cause exists”). Furthermore,
the affidavit dated May 12, 2016, detailed information suggesting that defendant was engaged in
stalking-type behavior, including videotaping and following women. Considered in conjunction
with defendant’s abduction of MJN, information about defendant’s videotaping of women
provided further reason to believe that evidence of a crime would be found on defendant’s
electronic devices. Cf. id. at 199-200. On these facts, “[t]he supporting affidavits were not so
lacking in indicia of probable cause that the officers could not objectively believe that the
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warrant was supported by probable cause.” Id. at 199 (quotation marks and citation omitted). In
these circumstances, the trial court properly refused to apply the extreme sanction of exclusion.
V. BRADY VIOLATION
In his Standard 4 brief, defendant asserts that the prosecutor withheld exculpatory
evidence regarding the ballistics analysis of the bullets that killed Bletsch. Defendant’s claim is
unpreserved and therefore reviewed for plain error. See People v Green, 322 Mich. App. 676,
681; 913 NW2d 385 (2018). Defendant has not shown plain error.
Under Brady,6 “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” People v Chenault, 495 Mich. 142,
149; 845 NW2d 731 (2014) (quotation marks and citation omitted). To establish a Brady
violation, a defendant must show that “(1) the prosecution has suppressed evidence; (2) that is
favorable to the accused; and (3) that is material.” Id. at 150. “To establish materiality, a
defendant must show that there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and
citation omitted).
Defendant contends that the prosecutor withheld laboratory reports and chain of custody
information relating to the ballistics evidence. According to defendant, the withheld reports
were exculpatory insofar as they would have revealed mistakes, undermined the chain of
custody, led to discovery of rebuttal witnesses, and exposed the perjury of the state’s ballistics
expert.
Defendant’s claims are without merit. Quite simply, there is nothing in the record to
support defendant’s assertions that he was not provided with the materials in question or to show
that the materials were favorable to the defense. See People v Elston, 462 Mich. 751, 761-762;
614 NW2d 595 (2000). Defendant’s arguments center mainly on the correction of a report by
Lieutenant Jeff Crump. Lieutenant Crump testified that he modified an earlier report to correct
an error in the police agency designation.7 The updated report, with the original report attached,
was admitted at trial. Although defendant now claims on appeal that these materials were
withheld from him, these materials—by defendant’s own admission—were introduced at the trial
relating to Bletsch, which occurred several months before the current case relating to Heeringa.
On these facts, defendant has not shown that the prosecutor suppressed material evidence
favorable to the accused, and therefore, his Brady claim is without merit.
6
Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
7
Defendant also maintains on appeal that Lieutenant Crump committed perjury, but there is no
evidence that Lieutenant Crump lied about the reason for the correction or anything else. At
most, any inconsistency between Lieutenant Crump’s reports was a matter of credibility and a
subject for impeachment. See People v Parker, 230 Mich. App. 677, 690; 584 NW2d 753 (1998).
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VI. INTERFERENCE WITH ATTORNEY-CLIENT PRIVILEGE
In his Standard 4 brief, defendant also asserts that the trial court abused its discretion by
denying defendant’s motion to dismiss after the government violated his Sixth Amendment right
to counsel when it interfered with his attorney-client privilege by reading materials intended for
defendant’s attorney. We disagree.
Initially, we note that defendant abandoned his Sixth Amendment claim by failing to
adequately brief the issue on appeal. In his brief, defendant makes passing references to the state
“stealing” notes intended for his attorney and intruding “into his trial strategies.” But he fails to
develop a meaningful argument supported by facts and law. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment [of an issue] with little or no citation of
supporting authority.” People v Matuszak, 263 Mich. App. 42, 59; 687 NW2d 342 (2004)
(quotation marks and citation omitted). “Such cursory treatment constitutes abandonment of the
issue.” Id.
In any event, defendant’s claim that the government violated his Sixth Amendment right
to counsel by intruding on the attorney-client privilege is without merit. In the trial court,
defendant maintained that jail authorities and investigators contrived to violate his attorney-client
privilege by obtaining the following materials intended for his attorney: (1) notes from the
pocket of defendant’s jail jumpsuit found when defendant sent his jumpsuit to be laundered in
August 2016, (2) notes on a legal pad in his cell that were viewed and copied during a search of
defendant’s jail cell on September 2, 2016, and (3) papers in an envelope marked confidential in
his cell, which were viewed during the September search and again during a search in October
2016. This same issue was raised in the Bletsch case, where the trial court rejected the argument.
When defendant raised the issue here, the trial court incorporated its findings of fact and
conclusions of law from the Bletsch case.
A trial court’s decision on a motion to dismiss is reviewed for an abuse of discretion.
People v Patton, 325 Mich. App. 425, 431; 925 NW2d 901 (2018). A trial court’s factual findings
are reviewed for clear error. MCR 2.613(C); People v Garland, 286 Mich. App. 1, 7; 777 NW2d
732 (2009). “Generally, whether a defendant’s right to counsel was violated is a constitutional
issue that this Court reviews de novo.” People v Hoang, 328 Mich. App. 45, 54-55; ___ NW2d
___ (2019). Whether a privilege applies is a legal question reviewed de novo. People v Carrier,
309 Mich. App. 92, 104; 867 NW2d 463 (2015).
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Leibel v Gen Motors Corp, 250 Mich. App. 229,
237; 646 NW2d 179 (2002) (quotation marks and citations omitted). “[S]tanding alone, the
attorney-client privilege is merely a rule of evidence; it has not yet been held a constitutional
right.” Howell v Trammell, 728 F3d 1202, 1222 (CA 10, 2013) (quotation marks and citation
omitted). Nevertheless, courts have acknowledged that to meaningfully implement the right to
counsel, privacy of communication with counsel is essential. See Weatherford v Bursey, 429 U.S.
545, 554 n 4; 97 S. Ct. 837; 51 L. Ed. 2d 30 (1977); United States v Brugman, 655 F2d 540, 546
(CA 4, 1981). It follows that a violation of the attorney-client privilege may implicate a
defendant’s Sixth Amendment right to counsel “when the government interferes with the
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relationship between a criminal defendant and his attorney.” Howell, 728 F3d at 1222 (quotation
marks and citation omitted; emphasis omitted). To establish a constitutional violation of the
Sixth Amendment right to counsel arising from interference with the attorney-client privilege, “a
criminal defendant must show two things: first, that the government knowingly intruded into the
attorney-client relationship; and second, that the intrusion demonstrably prejudiced the
defendant . . . or created a substantial threat of prejudice.” United States v Singer, 785 F2d 228,
234 (CA 8, 1986).
As relevant to defendant’s argument, the constitutional right implicated by invasion of
the attorney-client privilege that defendant relies on for his argument—the Sixth Amendment
right to counsel—“attaches and represents a critical stage only at or after the initiation of
adversary judicial proceedings against the accused by way of a formal charge, preliminary
hearing, indictment, information, or arraignment.” People v Anderson (After Remand), 446 Mich.
392, 402; 521 NW2d 538 (1994). The Sixth Amendment right to counsel “is offense-specific
and cannot be invoked once for all future prosecutions.” People v Smielewski, 214 Mich. App. 55,
60; 542 NW2d 293 (1995). Given the parameters of the Sixth Amendment right to counsel,
intrusion into the attorney-client privilege would not constitute a violation of the Sixth
Amendment right to counsel unless that right to counsel had attached, and even then, the Sixth
Amendment right to counsel is offense specific. See, e.g, United States v Danielson, 325 F3d
1054, 1066 (CA 9, 2003), as amended (May 19, 2003) (“The government’s use of Sava to obtain
Danielson’s statements regarding separate offenses for which he had not been indicted . . . was
not an impermissible intrusion into the attorney-client privilege and therefore, did not violate his
Sixth Amendment rights.”).
Defendant was arraigned in the district court on September 20, 2016, and at that time, he
requested an attorney, thereby invoking his Sixth Amendment right for the charges involving
Heeringa. See Anderson (After Remand), 446 Mich. at 402. However, the majority of the
government conduct at issue occurred in August 2016 and on September 2, 2016, which was
before defendant’s Sixth Amendment rights for the current offense attached. Accordingly, the
trial court did not err by rejecting defendant’s Sixth Amendment claims relating to government
conduct in August and September 2016.8
8
Even setting aside the question of when defendant’s Sixth Amendment right to counsel attached
for the offenses involving Heeringa, defendant failed to show that (1) the government knowingly
intruded into the attorney-client relationship and (2) that the intrusion prejudiced defendant or
created a substantial threat of prejudice. Singer, 785 F2d at 234. Instead, the facts show that
defendant treated the notes in his jumpsuit and the legal pad in his cell in such a careless manner
as to negate his intent to keep them confidential. See People v Compeau, 244 Mich. App. 595,
597; 625 NW2d 120 (2001); see also United States v DeFonte, 441 F3d 92, 94-95 (CA 2, 2006).
Further, defendant failed to show that the government knowingly intruded on the attorney-client
relationship when, as a factual matter, the trial court determined the legal pad gave no indication
its contents were confidential and the trial court rejected defendant’s contentions that he told
deputies the notes in his jumpsuit were for his lawyer. Additionally, defendant cannot show
prejudice when the notes and legal pad in question were not used against him at trial, the items
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The only action that occurred after defendant’s Sixth Amendment right to counsel
attached was the search of the confidential envelope in October 2016 by jail officials looking for
information about deputies and their families amid security concerns that defendant was
compiling information about deputies, their families, and where they lived. One deputy looked
inside the envelope, and he did not share the information he saw with anyone else. In view of
the legitimate justifications for opening the envelope, defendant cannot show that the
government acted purposefully in order to garner confidential information. See Steele, 727 F2d
at 585-586; United States v Moses, 337 Fed App’x 443, 449 (CA 6, 2009). Defendant also
cannot show any prejudice when the deputy who opened the envelope in October 2016 was not
involved with the investigation of defendant’s crimes, he did not share the information he saw in
the envelope with the investigators or the prosecutor, and he did not even recall the information
that he saw in the envelope. In other words, the government, and in particular the prosecutor, did
not obtain evidence, or information about the defense strategy, for use at trial against defendant
or to use in any way to defendant’s detriment. See Steele, 727 F2d at 585-586. Moreover, the
trial court neutralized any potential taint caused by opening the envelope and assured that
defendant would receive a fair trial with the effective assistance of counsel by ordering (1) that
the materials in the envelope would not be admitted at trial, (2) that jail officials who viewed the
materials were enjoined from relating the information to anyone, and (3) that the prosecutor was
enjoined from receiving any such information. See Singer, 785 F2d at 234. On these facts,
contrary to defendant’s arguments, he was not entitled to dismissal of the charges in this case.
VII. MOTION TO DISQUALIFY THE PROSECUTOR’S OFFICE
In his Standard 4 brief, defendant next contends that the trial court should have
disqualified the Muskegon County Prosecutor’s Office after his attorney, Brian Hosticka,
accepted a position with the prosecutor’s office.
Initially, we note that defendant abandoned his claim regarding disqualification of the
prosecutor’s office by failing to adequately brief the issue on appeal. In his brief, defendant
mentions that “the acquisition of the defense’s lead attorney Brian Hosticka by the prosecutor’s
office” and he characterizes Hosticka’s decision to work for the prosecutor’s office as
“suspicious[].” But he fails to develop a meaningful argument supported by facts and law, and
his cursory treatment of the issue constitutes abandonment. See Matuszak, 263 Mich. App. at 59.
In any event, defendant’s assertion that the prosecutor’s office should have been
disqualified is without merit. “MRPC 1.9 prohibits an attorney from ‘switching sides’ by
were not given to the prosecutor, and, as found by the trial court, there is simply no indication
that the prosecutor gleaned any new information or information about the defense strategy from
the communications. See Steele, 727 F2d at 585-586; United States v Dobson, 626 Fed App’x
117, 125 (CA 6, 2015). And, with regard to the confidential envelope in particular, there were
legitimate reasons for the search in September, the information was not shared with the
prosecutor, and the trial court ordered safeguards to prevent the prosecutor from benefiting from
the information in the envelope. See Steele, 727 F2d at 585-586.
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representing a new client in a matter if the attorney’s former client has an interest adverse to the
new client.” People v Davenport, 280 Mich. App. 464, 468; 760 NW2d 743 (2008) (Davenport
I). “MRPC 1.10 governs the limitations imposed on an attorney’s new firm with respect to
representing parties whose interests are adverse to the new attorney’s former clients,” and
“requires the new firm to undertake and disclose safeguards against improper communications.”
Id. at 469. As applied in the criminal context:
A presumption of prejudice exists when a defendant’s former defense counsel
joins the prosecutor’s office that is pursuing the case against the defendant.
MRPC 1.9(b), 1.10(b). Such a presumption may be overcome, however, if the
prosecutor shows that the attorney who has a conflict of interest was properly
screened out from any participation in the matter. [People v Davenport, 483 Mich.
906, 906 (2009) (Davenport II).]
If a defense attorney moves to the prosecutor’s office, the trial court should be “promptly
informed,” and the trial court should then “inquire into the matter and order an appropriate
safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the
entire prosecutor’s office, if necessary.” Davenport I, 280 Mich. App. at 470. Relevant
considerations include “the extent to which knowledge has been shared by the disqualified
lawyer and the disqualified lawyer’s role within the prosecutor’s office.” In re Osborne, 459
Mich. 360, 369-370; 589 NW2d 763 (1999).
Defendant was at one point represented by Hosticka, both in this case and in the Bletsch
proceedings. There is almost no information in the current record about why Hosticka stopped
representing defendant. At most, during sentencing, defendant asserted that Hosticka “turned
turncoat for money to the prosecutor’s office” and that the trial court failed to “render a proper
decision” after Hosticka’s defection. It would constitute plain error, when alerted to an
attorney’s decision to “switch sides,” to not conduct a hearing to determine whether
disqualification of the prosecutor’s office is necessary. See Davenport I, 280 Mich. App. at 471.
However, as alluded to by defendant at sentencing, the trial court did render a decision on the
issue of Hosticka and the prosecutor’s potential disqualification in connection with the
proceedings in Bletsch’s case. Although the trial court’s order, transcripts, and other pertinent
documents from the Bletsch case do not appear in the lower court record, we may take judicial
notice of these documents in the current case, particularly when there is no dispute about their
accuracy. See People v Parkmallory, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket
No. 342546); slip op at 2; Johnson v Dep’t of Natural Resources, 310 Mich. App. 635, 649; 873
NW2d 842 (2015). Considering the trial court’s order and other materials in the Bletsch case, it
is clear that the trial court fulfilled its obligation to hold a hearing when confronted with an
attorney’s decision to switch sides. See Davenport I, 280 Mich. App. at 471. More substantively,
the trial court did not err by refusing to disqualify the Muskegon County Prosecutor’s Office
after Hosticka left the defense to join the prosecutor’s office. Although there may be a
presumption that Hosticka’s move to the prosecutor’s office was prejudicial, see Davenport II,
483 Mich. at 906, the prosecutor overcame this presumption with information about Hosticka’s
role in the office and efforts to screen out Hosticka from any participation in defendant’s cases.
See In re Osborne, 459 Mich. at 369-370. On these facts, disqualification of the prosecutor’s
office was not warranted, and defendant is not entitled to relief on appeal. See Davenport, 483
Mich. at 906; Tesen, 276 Mich. App. at 141.
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VIII. CUMULATIVE ERROR
Finally, defendant argues that the cumulative effect of the errors at trial warrants reversal.
We disagree.
“The cumulative effect of several errors can constitute sufficient prejudice to warrant
reversal even when any one of the errors alone would not merit reversal, but the cumulative
effect of the errors must undermine the confidence in the reliability of the verdict before a new
trial is granted.” People v Dobek, 274 Mich. App. 58, 106; 732 NW2d 546 (2007). To warrant
reversal, errors must have been “of consequence.” People v Knapp, 244 Mich. App. 361, 388;
624 NW2d 227 (2001). “In other words, the effect of the errors must have been seriously
prejudicial in order to warrant a finding that defendant was denied a fair trial.” Id.
The majority of defendant’s claims of error—including his claims of jury partiality, his
challenge to the search of his electronic devices, his arguments about the most substantial of the
MRE 404(b) evidence, and the claims in his Standard 4 brief—are without merit. As discussed,
defendant’s only viable claims of error involve the admission of the homemade, voyeuristic
videos and mention of the serial-killer list. However, given the strong evidence of defendant’s
guilt as detailed earlier, the cumulative effect of these relatively minor errors in the admission of
other-acts evidence did not deny defendant a fair trial. See id. Accordingly, defendant is not
entitled to reversal on the basis of cumulative error. See id.
Affirmed.
/s/ Patrick M. Meter
/s/ Colleen A. O’Brien
/s/ Jonathan Tukel
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