People of Michigan v. Paul Michael Jones ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 9, 2017
Plaintiff-Appellee,
v No. 328816
Newaygo Circuit Court
PAUL MICHAEL JONES, LC No. 14-010873-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 328901
Newaygo Circuit Court
MATTHEW WAYNE JONES, LC No. 14-010877-FC
Defendant-Appellant.
Before: WILDER, P.J., and MURPHY and O’BRIEN, JJ.
PER CURIAM.
Defendant brothers Paul Michael Jones (Paul) and Matthew Wayne Jones (Matthew)
appeal as of right from their jury trial convictions, which were entered following a consolidated
trial before dual juries. Both defendants were charged with first-degree murder, MCL
750.316(1). Paul was acquitted of first-degree murder and instead convicted of the lesser
included offense of second-degree murder, MCL 750.317, for which he was sentenced to 30 to
75 years. On the other hand, Matthew was convicted of first-degree murder and sentenced to life
without the possibility of parole. With regard to both brothers, we affirm.
I. FACTUAL BACKGROUND
This case arises out of the July 1989 disappearance of 18-year-old Shannon Siders (the
victim). Her mutilated, decomposing body was discovered by a hunter in the Manistee National
Forest near Newaygo, Michigan, several months after she disappeared. Both defendants were
teenagers at the time of the victim’s disappearance. The prosecution’s theory of the case was
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that after driving around “partying” with the victim and several other teenagers and young adults
over the course of the night, defendants drove the victim to a secluded location, sought sexual
favors from her, became enraged when she declined their advances and fled, hit the fleeing
victim with defendant Paul’s car, took turns raping and beating her, and eventually beat her to
death.
The victim’s parents divorced when she way five years old, after which she lived
exclusively with her father, Robert Siders (the father), in Newaygo. At the time of the victim’s
disappearance, Carol Glassner was 17 years old, was dating defendant Paul, and was a close
friend of the victim. While partying with Glassner, defendant Paul would consume alcohol,
smoke marijuana, and use “acid” (presumably lysergic acid diethylamide (LSD)). On the day the
victim disappeared, Glassner, Paul, and the victim had been “hanging out” at a nearby river,
swimming. Sometime before the victim’s father left for work that night, Glassner and Paul
dropped the victim off at home. Shortly thereafter, the victim called Glassner and asked for a
ride to “a party.” Glassner was babysitting that evening and so was unable to give the victim a
ride. In Glassner’s presence, Paul also spoke with the victim by telephone. Overhearing Paul’s
side of the conversation, Glassner heard him refuse to give the victim a ride. Paul left Glassner’s
house roughly 30 to 45 minutes later, telling Glassner that he was headed home.
As memorialized by a telephone bill that was introduced at trial, the victim’s boyfriend,
who had recently moved to Ohio for work, called her from a motel near Cincinnati at 9:55 p.m.
on the evening that she disappeared. Everything seemed normal during the conversation. The
victim told her boyfriend she was planning to go out later that night with, among other people,
defendant Paul. Her father left for his midnight factory shift around 10:15 p.m. or 10:30 p.m.
He never saw the victim alive again.
Several witnesses gave largely consistent testimony about what the victim was doing in
the hours leading up to her disappearance. The majority of the witnesses were intoxicated on the
evening in question. Around twilight, a group of teenagers and young adults—including the
victim, defendants, Darrin Sackett, Norman Shields, William Shields, Ricky Gomez, Clint
Guthrie, and Michelle “Shelley” Burns—all met at the Newaygo “EZ Mart,” where they
remained for roughly half an hour or 45 minutes. Around 11:30 p.m., the group left, traveling in
Paul’s car, Guthrie’s black Ford Mustang, and William Shields’s black Chevrolet Monza. Paul
drove a red, 1990 Mercury Cougar with “a white vinyl landau top[.]” The victim rode with
defendants in Paul’s Cougar. The drivers engaged in “a cat-and-mouse game . . . chasing each
other around the back roads of Newaygo County until [they] ended up” at a gas station in Grant,
sometime around 2:00 a.m. The group remained at the gas station for approximately 15 or 20
minutes conversing, smoking cigarettes, and discussing their plans for “the rest of the night,” and
then departed in the same vehicles in which they had arrived. Sackett rode in the front passenger
seat of William Shields’s Monza, while the victim rode in the front seat of Paul’s Cougar, seated
between defendants in the front seat. The vehicles headed north on M-37 toward Newaygo, with
Paul’s Cougar following immediately behind the Monza. Sackett “kept looking behind . . . to see
where everybody was going.” He was “90 percent” certain that he observed Paul’s Cougar turn
right off of M-37 onto Hess Lake Road (also known as 88th Street), heading east. Sackett never
saw the victim again.
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The other vehicles in the group continued north on M-37, eventually pulling into a
grocery store parking lot in Newaygo, which was situated at the corner of M-37 and M-82.
“Roughly two hours” later, defendants pulled into the grocery store parking lot from the
northbound lane of M-37. The victim was no longer with defendants. When asked where the
victim was, defendant Paul replied, “We dropped her off at home.” Defendants seemed
“normal,” appeared to be “calm,” and the group remained in the parking lot for about another
hour, drinking beer and making plans about what to do next. Defendant Paul was wearing the
same clothes he had worn on the previous evening. Those clothes showed no rips or evidence
that Paul had been in a struggle. When Guthrie’s Mustang drove by, defendants left in pursuit.
About 20 minutes later, defendants returned to the grocery store parking lot. Around first light—
5:00 a.m. or 6:00 a.m.—defendants, Sackett, and William Shields all left, driving to Hess Lake’s
public access point. On the drive, defendant Paul began to tailgate and William Shields slammed
on his brakes, which resulted in a read-end collision. The accident caused “pretty extensive
front-end damage” to Paul’s Cougar. After the accident, Sackett and William Shields traveled to
a local canoe rental business along the Muskegon River, where they were joined by defendants,
and drank some more beer. Sackett eventually left with defendants in Paul’s Cougar. He sat in
the backseat and noticed nothing out of the ordinary in the vehicle.
Dean Robinson, who was incarcerated at the time of trial,1 was 19 years old at the time of
the victim’s disappearance. At that time, Robinson was in an “on-and-off-again” dating
relationship with Tanya Berends. The night that the victim disappeared, Robinson had plans to
meet up with Berends after work, and he hoped to find some “buddies to see if they wanted to go
out drinking.” While at a gas station, Robinson was approached by a younger local girl he knew,
Jenni Corrigan, who was 14 years old at the time. Corrigan got into Robinson’s car and told him
“she was going to go running with [him] that night.” Robinson decided to let Corrigan “tag
along” with him. After leaving the gas station with Corrigan, Robinson met a local man from
whom he purchased “a whole half a gallon” of whiskey, one “hit” of LSD, and “a quarter gram
of cocaine.” Robinson took the LSD just before dark and started drinking. He was unsure
whether he used any cocaine that evening. Robinson was accustomed to alcohol and drug use
and had, at the time in question, already been in a “28-day rehab” program for alcohol abuse.
While he admitted that he was “lit up” that night, and that “some of the details” about the
evening “are foggy,” he testified that his intoxication did not prevent him from perceiving the
events of the evening or recalling those events.
After obtaining drugs and alcohol, Robinson and Corrigan began to drive around on the
“two tracks” (i.e., the beaten paths created by automobile traffic) in the area near where the
victim’s body was ultimately found, looking for parties and for Berends. Robinson and Corrigan
came across several groups of people but were unsuccessful at locating Berends or any of
Robinson’s friends. Because of Corrigan’s young age, Robinson did not want anyone—
particularly Berends—to see Corrigan driving around with him. At some point “way late” in the
1
At the time of trial, Robinson had served “a little bit” more than 12 years in prison for
convictions of attempted murder, first-degree home invasion, solicitation to commit perjury, and
witness bribery.
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evening, the bumper of Robinson’s vehicle got “hung up on a stump” and “it pulled off one
whole side of the bumper to where it hung down on the ground.” After reattaching the bumper,
Robinson parked on a “two track,” where he and Corrigan talked and waited for the sun to rise.
Around 4:00 a.m. or 5:00 a.m.,2 a “darker-colored car,” which Robinson thought was
maroon, approached and parked so that its headlights shone at the driver’s door of Robinson’s
vehicle. Robinson could not recall whether the car had any white trim. Two men were in the
car. The driver exited the vehicle, identified himself as “Paul Jones,” and said he was looking
for “[a] girl walking around out there.” The driver was visibly intoxicated and kept trying to
look into Robinson’s vehicle to see Robinson’s passenger.
Eventually, the maroon car and its occupants departed. Thereafter, Robinson and
Corrigan stayed where they had been, waiting for sunrise and for Robinson to sober. Because of
the damage to his bumper, Robinson was particularly worried about driving under the influence.
He believed that the damaged bumper might prompt the police to pull him over and investigate.
After about half an hour, Robinson and Corrigan departed. As Robinson was “pulling out of
there,” he encountered the same maroon car he had seen before. He stopped about 20 to 30 yards
from the maroon car. Robinson saw two men, one of whom was the driver he had spoken with
earlier that evening. A motionless girl was sprawled on the ground near the driver’s side of the
maroon car. She appeared to be roughly the same age as Robinson. Because he could see her
bare legs, Robinson thought the girl was wearing a dress. From the way the men were acting, the
fact that the girl had blood on her face,3 and the position of her body, Robinson thought that there
had been a pedestrian accident. After instructing Corrigan to stay in the vehicle, Robinson
“jumped out of [his] car and [] went running” toward the accident, but he “tripped and fell and
went skidding,” falling to his hands and knees. Robinson’s sudden arrival seemed to startle the
driver, who turned and abruptly kicked Robinson in the head, splitting his right eyebrow.
Robinson “rolled backwards and then went back pedaling toward [his] car[.]” As he did so, the
unidentified man who was with the driver walked around the maroon car, wielding something
that looked “like a hammer,” a “little hatchet like thing,” or some sort of hammer-like “roofing
tool[.]” As Robinson fled back to his car, Corrigan sounded a continuous blast of its horn.
Robinson got back into his car and saw one of the men grab the motionless girl by her arms and
drag her “towards the car,” but he did not see whether she was placed in the maroon car.4 The
maroon car began to back away, kicking up dust in its wake. Corrigan was “uncontrollable.”
She “was losing her mind, screaming, crying.” Robinson told Corrigan to “get a grip” and told
her that the men were only taking the girl to the hospital.
After the second encounter with the maroon car, Robinson drove Corrigan back to town
and dropped her off a short walk from her home. He “was really very firm with her,” instructing
2
Robinson admitted that he could not remember the time with any certainty.
3
In a prior sworn statement, Robinson acknowledged that “half the time” he believes the victim
did not have any blood on her face.
4
Likewise, Corrigan testified that she did not see whether the motionless girl was placed into the
car, but she assumed so after the man dragged the victim to the rear of the car.
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her not to tell anyone about what she had seen that night. Robinson explained, “I didn’t want to
call the law and have to explain myself being drunk, possibly with drugs and a 14-year-old girl in
my car.” He also wanted to prevent his girlfriend, Berends, from learning that he had been out
with Corrigan. Finally, Robinson thought that the motionless girl’s injuries had probably arisen
out of a drunk driving incident, and he sympathized with the driver. Robinson believed that, had
he struck a pedestrian while intoxicated, he might have acted the same way. Robinson’s
eyebrow was bleeding badly, so he went to his sister’s house, where he used superglue to close
the wound.5 Over the intervening years between the incident and trial, Robinson repeatedly told
Corrigan to remain silent.
Corrigan’s testimony regarding the evening of the victim’s disappearance was, with the
following exceptions, consistent with Robinson’s testimony: (1) Corrigan estimated that it was
“probably a couple of hours” between her and Robinson’s first encounter with the maroon car
and the second encounter, (2) Corrigan did not hear the driver introduce himself as “Paul Jones”
but heard him give the surname “Jones,” (3) Corrigan was certain she saw blood on the
motionless girl’s face, (3) Corrigan saw only one man—the driver—during the second encounter,
(4) Corrigan confirmed that Robinson “wanted a lot” in exchange for his testimony in this case,
and that she tried to influence the authorities to reward Robinson for his testimony, (5) Corrigan
testified that, unlike Robinson, she was not under the influence of any intoxicants on the evening
in question, and (6) Corrigan initially told the police that the “key players” in the victim’s
murder were Tony Hastings, Sam Hastings, Sr., Norman Shields, and William Shields.
When asked why she never told anyone about the maroon car incident until recently,
Corrigan gave several reasons. First, she thought that the motionless girl had been injured in an
accident and believed Robinson when he said that the driver would take the girl to the hospital.
Second, Corrigan was afraid of disobeying Robinson’s order to remain silent, and she thought he
could get into trouble for being out with her that evening. Robinson was older, “very
intimidating,” and “can be a very threatening person.” Third, Corrigan never associated the
victim’s disappearance—or her discovery in the Manistee National Forest—with the motionless
girl she had seen by the maroon car. Corrigan did not realize that the land around Newaygo is
part of the Manistee National Forest, instead believing that forest was located solely in Manistee,
Michigan.
The morning after the victim was last seen with defendants, her father arrived home
around 10:30 a.m. or 11:00 a.m. and discovered that the victim was not home. Nothing was
missing from the house, nor were there any signs of a struggle. The father was somewhat
surprised and angered by the victim’s unexpected absence, but he was not overly concerned; he
assumed that she had spent the night at a girlfriend’s house. Without success, he called several
of the victim’s friends and inquired about her whereabouts, and he asked neighbors whether they
had seen the victim. By that evening, when the father left for work again, the victim had yet to
5
Robinson’s sister testified that she remembered Robinson showing up at her house early one
morning in July 1989 with a gash over his eye.
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return home, and she was not home when he returned the following morning. Several days after
she disappeared, the victim’s father reported her as missing.
At the time of the victim’s disappearance, Officer Paul Jay DeWispelaere of the
Newaygo Police Department served as a school-police liaison between the local prosecutor’s
office and the local schools. The day after the victim disappeared, Officer DeWispelaere was
asked by the Michigan State Police to examine defendant Paul’s vehicle for damage regarding
Paul’s accident with William Shields. Paul cooperated with the traffic investigation, admitted
his involvement, and did not, during his July 19, 1989 interview, appear “unusually anxious or
nervous[.]” In a later interview, Paul admitted that on the night of her disappearance the victim
had been “doing a lot of riding around” with him in his vehicle, but he claimed to have taken her
home “after midnight.” Paul told Officer DeWispelaere that, after taking the victim home, “[h]e
went to Clint Guthrie’s house[and] spent the night.” Officer DeWispelaere also interviewed
defendant Matthew, who told DeWispelaere that defendants had taken the victim home, dropping
her off around 2:00 a.m., and thereafter defendants had continued to drive around partying.
During their investigation, the police interviewed several people who acknowledged that
they were with the victim on the evening she disappeared: defendants, brothers Norman and
William Shields, Gomez, Guthrie, and Burns. During the roughly 476 witness interviews that
Michigan State Police (MSP) Detective Richard Miller conducted in this case, however, no one
ever reported seeing the victim alive after she was last seen with defendants.
“[J]ust a couple of days” after the victim disappeared, Elizabeth Brooks (one of Paul’s
girlfriends at the time of the victim’s disappearance) spoke with Paul about the fact that the
victim was missing, and Paul said, “Just face it, she’s dead.” Paul gave Brooks several differing
explanations for how he damaged his car, none of which involved the car accident involving
William Shields:
He [] said that he had gotten in a confrontation in Newaygo at a party and
people took a baseball bat to his car. Then looking at his car, [Brooks] said:
That’s not [damage from] a baseball bat. And then [Paul] said that he hit a deer,
hit a tree. And [Brooks] told him he was lying, and he [] later said: Maybe I ran
Shannon [the victim] down with it.
Janet Weston was 17 years old at the time the victim disappeared. Weston testified to
certain statements made by each defendant—in the presence of the other defendant—after the
victim disappeared. The statements in question were made to defendant Matthew’s girlfriend,
Teri Lucas. Matthew informed Lucas that detectives would “probably” be coming to speak to
her about the victim’s disappearance. When asked why the detectives would do so, Matthew
responded, “Because [we] were all at a party together, which was the last place [the victim] was
seen with [us].” “Paul said that they dropped her off a ways from her home” after the party,
explaining that defendants wanted to avoid any contact with the victim’s father while dropping
her off. During this conversation, neither defendant corrected the other or objected to the
truthfulness of the other’s statement.
During Labor Day weekend of 1989, the victim’s photo identification card was
discovered in the Manistee National Forest. A gas card bearing the victim’s father’s name was
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also discovered nearby. On September 5, 1989, MSP Trooper Russell Moulton investigated the
fire pit area near where the gas card was discovered. Roughly 10 to 15 feet away from the fire
pit, Trooper Moulton discovered a pair of mens Levi’s jeans, a beach towel, and a pair of olive
drab “army pants” that might have been worn by a male or a female. The pants were never
identified as the victim’s, nor were any pants belonging to the victim ever located.
Several months after the victim’s disappearance, a man hunting deer near a location that
some locals refer to as “The Hole in the Woods” or “The Pothole” discovered the victim’s
remains. The nearest major intersection was M-82 and Thornapple Avenue. The hunter
promptly informed the Michigan State Police of his discovery. An investigating officer testified
that the victim’s body was situated behind some pine trees in such a way that it was very difficult
to observe. The victim was wearing a garment that had “characteristics” of either a sweater or a
dress. Her right hand was “clasping a beaded necklace,” which matched a description of one of
the victim’s necklaces. Her eyes had been blackened before she died, her hands were bruised,
and one of her shoulder blades was fractured, as were one of her “nasal bones,” two ribs, and one
of her lumbar vertebrae. The victim’s skull was detached from her neck, found 14 feet from her
body. A portion of the back of the skull was missing. Several pieces of the missing portion of
the skull were found, but others were never located. An expert forensic anthropologist testified
that the fractures of the victim’s skull were indicative of multiple blunt force injuries to the back
and sides of her head.
Because of the passage of time and decay, ordinary signs of sexual assault, such as the
presence of semen, could not be relied upon. But the victim’s sweater and bra were hiked up
“around her shoulder or neck area,” revealing her upper torso and breasts, and her panties were
pulled down such that they had been removed from her right leg entirely and were secured only
to her lower left leg. Also, the victim was in a “supine position,” i.e., lying on her back, and her
legs were spread apart. The victim’s left breast was severely bruised: “[i]t must have been really
beaten and just bled terribly inside.” Some amount of tissue from the victim’s pubic region had
been removed after her death. After the victim died, incisions had been made around her genitals
with a very sharp knife. Because of the advanced decay, the medical examiner was unable to
determine “how far down the cuts went.” But it appeared that the area had been “incised and
then undermined . . . and pulled away and cut off[.]” A “lock blade pocket knife” was
discovered near the victim’s remains, as was a pair of table legs. Based on his investigation,
Detective Miller believed that the victim died on the night that she disappeared.
In a written statement he provided to the police, Matthew claimed that, after leaving
Grant, defendants “dropped [the victim] off and rode around some more.” While discussing his
statement with Detective Miller, Matthew expounded on what defendants did after leaving
Grant:
He [Matthew] was still with [the victim] and his brother and they drove
northwards to Newaygo. . . . [H]e had conversations with [the victim] and she
expressed a desire to have them stop at the [] Gas Station again. They did, and
she went inside and bought a piece of pizza. She apparently consumed the pizza. .
. . And she lived about a block from that location, and he told me they initially
planned to drink a few beers with her at her house but, when they got there, she
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excused herself saying she was tired and wanted to go to bed, so they dropped her
off and watched her approach the door of the house and they . . . drove away.
Matthew said he saw the victim’s dog in the window while defendants were dropping her off at
home.
Amy Bonnor performed an independent investigation into the victim’s murder. At one
point the local sheriff told Bonnor that he could charge her with acting as a private investigator
without a license if she continued investigating the victim’s murder, after which Bonnor “slowed
down” considerably. But the sheriff did not believe that Bonnor’s investigation interfered with
the police investigation. Quite the contrary, Bonnor provided the police with “a lot of helpful
tips.”
Several witnesses testified to admissions made by defendants after the victim’s remains
were discovered. Defendants’ half-brother initially told the police that on several occasions
Matthew had told him he last saw the victim when she “got into a car full of Mexicans.” But
when the half-brother informed Matthew that he had told the police about the “car full of
Mexicans,” Matthew replied, “that’s not what I told you.”
While talking with Danny Proctor alone at Matthew’s house several months after the
victim disappeared, Paul said “that he was the last one seen watching his brother [Matthew] walk
into the woods with [the victim] in a row of trees.” Paul said defendants’ last “contact” with the
victim was “partying” in the woods at “The Pit.” Paul also “sa[id] . . . he don’t have nothin’ to
worry about,” “said the cops don’t have nothin’ on him,” and denied that he or Matthew were
involved in the victim’s death.
Several month after the victim’s remains were discovered, Randy Kosheba was exiting a
gas station and heard defendant Paul say, “[T]he bitch got what she deserved[.]” Kosheba did
not hear the rest of the conversation.
“At least a couple months” after the victim disappeared, Glassner encountered Paul by
chance while visiting a mutual acquaintance’s house. Glassner asked Paul whether, on the
evening of the victim’s disappearance, he actually went home after leaving Glassner’s house or
did something else. Paul replied that he had, in fact, gone home after leaving Glassner’s house.
Because she did not believe him, Glassner pressed the issue. Paul then changed his answer,
telling Glassner “[h]e didn’t know what he did” after he left her house on the evening in
question.
Melissa Forist was friends with the victim. On one occasion at a party in the woods,
Forist—who had been drinking—began to speak loudly, hoping that defendant Matthew would
overhear her, and said, “[H]e should be in jail for being involved with what happened to” the
victim. Matthew made no response, but he gave Forist “a dirty look.”
Todd Bull grew up with defendant Matthew. While smoking marijuana at a bachelor
party several years after the victim’s murder, Bull saw Matthew grab a woman by the throat and
threaten to “put her in the ground like the . . . fucking cunt up north.”
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Tammy Welch grew up with defendant Paul, considered him to be one of her good
friends, and “always partied” with him. Paul told Welch that the victim was with defendants on
the night she disappeared, and defendants were “pretty intoxicated” that evening, “but they
dropped [the victim] off at home and her dad was very upset.” Paul also told Welch that, at the
time she was dropped off at home, the victim “said she was going to get her bathing suit on or
something and go to the river.” Welch was also very close to defendant Matthew. Sometime
after the victim’s remains were found, Matthew asked Welch what she would think if he was the
victim’s killer.
At a party the year after the victim’s remains were found, Brooks saw defendant Paul
and “some others . . . running around chanting” lyrics to the “Guns N Roses” song “Used to
Love Her.” Paul and the others changed the lyrics of the song to “should have buried her six feet
under and he never would have found her.”
Also about a year after the victim was murdered, Bernadette Clark was at a party in the
woods with between 20 and 40 partygoers. Defendants were standing roughly 20 or 25 feet
away from Clark, who had consumed “one or two drinks” that evening. Defendants had been
drinking. While talking about the victim in a “bragging” and “cocky” manner, defendants spoke
“about how they had had them already, they couldn’t pin it on them, [and] they were free and
clear.” Defendants also said, “they can’t pin it on us. They had us, [and] they let us go.” “Two
to three months” later, while attending a birthday party at Clark’s house along with 30 to 40
other guests, Clark overheard defendants conversing about the victim in front of Guthrie and
several others. Defendants were standing by a fire pit in a group of 5 to 8 people, roughly 20 to
25 feet away from Clark. There was no music. Clark heard both defendants say, “They had us
once, they let us go, [and] we’re free and clear.” Then defendant Paul said
that they had taken her [the victim] out to a party spot. She discovered there was
nobody out there, so she got out of the vehicle and started to leave. He said that
they chased her with the car, hit her, [and] knocked her down with the mirror of
the car. And then they got out of the vehicle and they grabbed something from
behind the vehicle, a log or something, and they started to hit her with it, and they
took turns having sex with her.
Matthew was “[r]ight next to” Paul when Paul made such comments. Matthew did not say much
during the conversation, but he nodded his head, and said “yes and uh-huh.” Matthew did not
dispute the truth of what Paul said in any way. During the conversation, both defendants again
acted “cocky,” as if they were “bragging.”
Eve Rakowski formerly dated defendant Paul and has a child with him. While speaking
with Rakowski about the victim’s murder sometime in 2003 or 2004, defendant Matthew said
that when defendants dropped the victim off at home, “the lights were on, and that [the victim]
made a comment in effect . . . that: Oh man, my dad’s home. He’s going to be upset. I’m out
too late.” Matthew also told Rakowski that he was driving and that Paul was “passed out” at that
time.
About 10 to 12 years before trial, Gregory Fox was “partying”—consuming alcohol and
smoking marijuana—with defendant Paul and several others at the home of a mutual friend when
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the subject of the victim’s death arose. Paul said “[s]omething like: Only the people that was
there will know the truth of what happened to her.” Later in the conversation, while “talking
about a house on Hess Lake,” Paul said “that people wouldn’t know, besides the people that was
there, what happened in the house in the basement and the rape that was going on.” On another
occasion (Fox could not recall the date), Jones said that the victim’s body had been “in a house
and tied up” and was “dumped in the woods.” At the time the comments were made, it was
common knowledge in the community that the victim’s body had been found in the woods and
there were rumors that the victim had been sexually assaulted, but Fox had the “impression” that
Paul’s statements were based on personal knowledge, not news reports or rumors. Fox did not
report Paul’s comments to the police because he thought such comments were “just hearsay.”
Ultimately, the original investigation into the victim’s murder stalled. But in 2011, a “cold case
team” was formed to investigate the murder anew. Roughly 300 people were interviewed, and
the cold case team uncovered numerous witnesses that were never interviewed as part of the
original investigation into the victim’s disappearance and death.
Angela Chase met defendant Paul in 2010. While Chase was giving Paul and a friend a
ride to a nearby town, Chase turned the conversation to the topic of the victim’s exhumation,
saying, “So, well, what do you guys think about the news? . . . . Bobby Siders [the victim’s
father] has a special pair of handcuffs for whoever killed his daughter and they also have an
anthropology guy that could get some DNA off of her body.” Paul responded, “Well, they have
mine DNA [sic], but they don’t have my brother’s.” His tone was “mean,” and his demeanor
was “highly agitated and defensive.” Paul’s response frightened Chase.
Eddie Jackson was a jailhouse informant who was incarcerated with defendant Paul for
roughly five or six months before trial.6 Jackson testified that, on one occasion, Paul said, “I
shouldn’t have gotten my brother into this shit.” Another time, Paul said, “Man, they’re not
going to find a murder weapon,” further suggesting that the police were looking for the wrong
type of weapon and that the actual murder weapon had “four prongs and it doesn’t match up with
any wounds on the [victim’s] body[.]”7 Paul told Jackson that defendants were not guilty of the
victim’s murder and that, on the evening of her disappearance, defendants dropped her off at
home.
Before trial, the prosecution filed a motion in limine seeking to admit the testimony of
several witnesses, including Ronald King, regarding various out-of-court statements allegedly
made by defendants. The prosecution argued that such statements were admissible against
defendants as admissions by a party opponent or adoptive admissions under MRE 801(d)(2). At
6
Jackson was convicted in federal court of three counts of sex trafficking of a minor, for which
his minimum sentence was 30 years in federal prison, and he was hoping to receive a reduced
sentence in return for his testimony in this case. Jackson did not have a deal “in hand.” In other
words, the degree to which Jackson’s sentence would be reduced—if at all—was contingent on
how helpful his testimony was to the prosecution in the instant case.
7
The victim’s body showed “patterned dot bruises” indicative of being struck with something
with four tines or prongs. There is a hand-held roofing tool that could have left such bruises.
-10-
the final pretrial conference, however, the parties agreed that, rather than ruling on the
prosecution’s motion before trial, the court would receive an offer of proof during trial regarding
the substance of King’s testimony. Thus, several days into the trial, and out of the presence of
the juries, the trial court received an offer of proof concerning King’s testimony. King is a
distant blood relative of defendants (defendants’ grandfather is King’s half-brother), was 70
years old at the time of trial, and has serious memory problems. Defendants would visit King at
his home a “couple three or four times a year.” “Late in the summer” of 1989—in “September,
maybe October”—defendants visited King and, while smoking marijuana together, the three
discussed the victim. King could tell that defendants had been drinking before they arrived at his
house: “They were having trouble talking, walking, and they were carrying their beer in their
hand.” King was unable to remember with any specificity which comments were made by Paul
and which were made by Matthew:
Q. Do you remember a conversation about [the victim] with Paul and
[Matthew] that night?
A. Yes, I remember several things that were mentioned.
Q. Okay. Were both individuals— Was [Matthew] taking part in the
conversation?
A. I’m not— Both of them were at one time or another, all of—both of
them talked.
* * *
Q. Okay. Is the conversation going on between the three of you?
A. Not really.
Q. Okay. Tell Judge Monton about that, please.
A. They came over and we were talking about different subjects. And
when the subject of [the victim] came up, one would say something and the other
one would tell him to be quiet. It seemed that one of them was talking and the
other one was the quiet side. I mean, they were telling to be quiet [sic], or we
don’t have to discuss that, or they’d look over at me and just not say anything.
Q. Okay. Could they both hear each other speaking at the time?
* * *
A. Yes. They were at the same table.
Q. Okay. Did it appear to you that they were both participating between
each other in this conversation about [the victim]?
A. Yes.
-11-
* * *
Q. Okay. Meaning that you don’t remember specifically who said what
during any of this conversation?
A. Exactly.
* * *
Q. All right. So now as you sit here today, if you were going to testify,
you can’t say who said what during this conversation, can you?
A. No. I don’t know which one is Paul and which one is Matthew right
off the top of my head today.
Upon further questioning, King explained,
I don’t— I don’t have a good timeline in my brain, so I might say yes
where I should have said no in the first place. In other words, I get things turned
around a little bit.
But that night, one of them said: Maybe we shouldn’t have hit her so hard.
One of them said maybe—something like: She should have give [sic] us what we
wanted. One of them said— I can’t remember.
* * *
I told the police that one of them said something [as defendants were
leaving King’s house], and right now I cannot remember what it was. And the
other one says: Well, we don’t have to talk about that now. I think we’re in the
clear. . . . Something to that effect.
* * *
I don’t care how many times you ask me, I can’t answer yes or no to some
questions. . . . [I]f I can’t remember . . . I’m sorry.
When asked what response was made to the comment that the victim should have given
defendants what they wanted, King replied, “I’m not sure there was an immediate response.”
King acknowledged that he was sitting across a table from defendants and was unable to hear “a
lot” of the conversation between the two. The day after he overheard the comments, King called
the police to report the conversation, but he testified that he never received a response from the
authorities.
Following the offer of proof, the prosecution sought to admit King’s testimony regarding
the admissions defendants made to him. The prosecution first argued that the statements in
question did not qualify as hearsay because they were not being offered to prove the truth of the
matter asserted. Alternatively, the prosecution again argued that the statements were admissible
-12-
against defendants as either admissions by a party opponent or adoptive admissions. Conversely,
defendants argued that (1) the statements in question were inadmissible hearsay, (2) the
prosecution had failed to lay a proper foundation regarding which statements were made by
which defendant, (3) given King’s memory problems, it was impossible to lay a proper
foundation that either defendant acquiesced to the truthfulness of the statements, and (4) if
otherwise admissible, the statements should be excluded as more unfairly prejudicial than
probative under MRE 403. After considering the matter, the trial court agreed with defendants
and held that King’s testimony was hearsay and was inadmissible under the theories advanced by
the prosecution. After the prosecution pursued an emergency interlocutory appeal, however, this
Court peremptorily reversed the trial court.8
Hence, the trial court was ordered to admit King’s contested testimony, and it did so.
King’s testimony at trial was largely consistent with his prior offer of proof. King testified that
he overheard defendants talking about the victim and heard one say “[t]hey thought she was
pretty.” “[O]ne of them said that maybe they shouldn’t have hit her so hard.” “[T]hey said she
was good looking” and said “something about she should have given them what they wanted.”
As defendants were leaving King’s house, he heard one of them—he thought it was Paul—start
“to say something, and Matthew sa[id], ‘well, we don’t have to talk about that anymore. I think
we’re in the clear’, something to that effect.” King called the police the next day to report
defendants’ comments, but the police took no action in response. King testified that he has
severe memory problems, that “everything [wa]s all mixed up in [his] mind,” that he has smoked
marijuana on a daily basis for his “whole life,” and that there was a “possibility that this [wa]s all
part of [him] going crazy.”
Both defendants elected not to testify at trial, and they were convicted as set forth above.
The instant appeals ensued.
II. STANDARDS OF REVIEW
On appeal, defendants raise numerous claims of error, thereby implicating several
standards of review. “We review for an abuse of discretion a trial court’s decision to admit or
exclude evidence,” but preliminary legal questions of admissibility are reviewed de novo, People
v Mann, 288 Mich App 114, 117; 792 NW2d 53 (2010), including whether a statement
constitutes inadmissible hearsay, People v McDaniel, 469 Mich 409, 412; 670 NW2d 659
(2003). Reversal of a criminal conviction on the basis of a trial court’s erroneous evidentiary
ruling is only necessary where the error prejudiced the defendant and resulted in a miscarriage of
justice. MCL 769.26; People v Snyder (After Remand), 301 Mich App 99, 111; 835 NW2d 608
(2013). A defendant seeking reversal “has the burden of establishing that, more probably than
not, a miscarriage of justice occurred because of the error.” People v Knapp, 244 Mich App 361,
378; 624 NW2d 227 (2001). “[A] trial court’s decision on a close evidentiary question ordinarily
cannot be an abuse of discretion.” People v Cameron, 291 Mich App 599, 608; 806 NW2d 371
8
People v Matthew Wayne Jones, unpublished order of the Court of Appeals, entered April 29,
2015 (Docket No. 327053); People v Paul Michael Jones, unpublished order of the Court of
Appeals, entered April 29, 2015 (Docket No. 327054).
-13-
(2011) (quotation marks and citation omitted). “We review unpreserved evidentiary error,
including alleged constitutional error, for plain error.” People v Coy, 258 Mich App 1, 12; 669
NW2d 831 (2003).
We review for an abuse of discretion a trial court’s “denial of a motion for a new trial on
the ground that the verdict was against the great weight of the evidence,” People v McCray, 245
Mich App 631, 637; 630 NW2d 633 (2001), denial of a motion for a mistrial, People v Alter, 255
Mich App 194, 205; 659 NW2d 667 (2003), and decision regarding a motion to change venue,
People v Jendrzejewski, 455 Mich 495, 500; 566 NW2d 530 (1997). “A trial court abuses its
discretion when it selects an outcome outside the range of reasonable and principled outcomes.”
People v Maben, 313 Mich App 545, 552; 884 NW2d 314 (2015).
“Whether defense counsel performed ineffectively is a mixed question of law and fact;
this Court reviews for clear error the trial court’s findings of fact and reviews de novo questions
of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
“Unpreserved issues concerning ineffective assistance of counsel are reviewed for errors
apparent on the record.” People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012).
III. ANALYSIS
A. HEARSAY
The chief argument of both defendants on appeal is that reversal is necessary because of
the erroneous admission of various “hearsay” statements at trial. We conclude that no error
requiring reversal occurred.
MRE 801(c) provides, “ ‘Hearsay’ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”
Under MRE 802, hearsay is not admissible unless it falls under one of the hearsay
exceptions set forth in the Michigan Rules of Evidence. If, however, the
proponent of the evidence offers the statement for a purpose other than to prove
the truth of the matter asserted, then the statement, by definition, is not hearsay.
MRE 801(c). [People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013).]
In pertinent part, MRE 801(d) provides,
A statement is not hearsay if:
* * *
(2) Admission by party-opponent. The statement is offered against a party
and is (A) the party’s own statement in either the party’s individual or
representative capacity, or (B) a statement of which the party has manifested the
party’s adoption or belief in its truth[.]
-14-
Although codefendants are party opponents of the prosecution, they are not party opponents of
one another. United States v Pacchioli, 718 F3d 1294, 1305 (CA 11, 2013), citing United States
v Gossett, 877 F2d 901, 906 (CA 11, 1989) (“[T]he admission sought to be introduced was made
by a co-defendant who is not a party opponent. The Government is the party opponent of both
defendants.”).9 “A statement cannot be used as a party admission unless the party made the
statement,” and the burden of proving, by a preponderance of the evidence, that the statement
was made by a party opponent rests with the statement’s proponent. Merrow v Bofferding, 458
Mich 617, 633; 581 NW2d 696 (1998). See also People v Jones, 270 Mich App 208, 216; 714
NW2d 362 (2006) (holding that the preponderance of the evidence standard governs
admissibility under MRE 801(d)(2)(E)).
1. KING’S TESTIMONY
Defendants challenge King’s testimony that he overheard defendants—or at least one of
the defendants—make the following statements: (1) “They thought she was pretty” or “good
looking,” (2) “[M]aybe they shouldn’t have hit her so hard,” (3) “[S]he should have given them
what they wanted,” and (4) “[W]e don’t have to talk about that anymore. I think we’re in the
clear[.]” Defendants argue that the above statements qualify as hearsay under MRE 801(c) and,
thus, that such statements should not have been admitted under MRE 801(d). We disagree.
Because the four statements above were not offered to prove the truth of the matter
asserted, none of those statements qualify as hearsay under MRE 801(c). This distinction rests at
the very heart of the hearsay rules. Hearsay is inadmissible not because it lacks probative value
but because, when a statement is relayed by someone other than the declarant, the fact-finder has
no real opportunity to gauge the truth of the matter asserted by the declarant. In other words, as
set forth by the rules of evidence, a statement is only hearsay if it is offered into evidence to
prove the truth of the matter asserted by the declarant. Here, the probative value of the
statements at issue lies not in the truth or falsity of the matter asserted but in the fact that
defendants made the statements. In other words, the statements were not offered to prove
whether defendants actually thought the victim was attractive, whether defendants should have
hit the victim with less force than they did, whether she “should have given” defendants “what
they wanted,” or whether one of the defendants actually believed that “they” were “in the clear.”
Although the statements were offered as substantive evidence of defendants’ guilt, they
nevertheless do not qualify as hearsay under MRE 801(c).10 It is, as such, immaterial whether
9
As explained in Shields v Reddo, 432 Mich 761, 785 n 30; 443 NW2d 145 (1989), MRE
801(d)(2) and the corresponding federal rule, FRE 801(d)(2), were once identical. Although this
is no longer true, the language of the rules remains substantially similar. Thus, it is appropriate
to consult federal precedent as persuasive authority here. See Wilcoxon v Minnesota Mining &
Mfg Co, 235 Mich App 347, 360; 597 NW2d 250 (1999) (“Though not binding on this Court,
federal precedent is generally considered highly persuasive when it addresses analogous
issues.”).
10
Without any citation to authority, Matthew contends that, because the statements were
admitted as “substantive evidence” against Matthew, it necessarily follows that the statements
-15-
the statements also qualify as nonhearsay under MRE 801(d)—because the statements were not
hearsay under MRE 801(c), they were admissible without the need to consider alternative
hearsay theories of admissibility.
2. WESTON’S TESTIMONY
Defendant Paul next challenges the admission of Weston’s testimony regarding the
statements made to Lucas (defendant Matthew’s girlfriend). Paul argues that such statements
were inadmissible against him under MRE 801(d). We disagree.
Weston’s testimony regarding the statement made by Paul—i.e., that defendants
“dropped [the victim] off a ways from her home”—was clearly admissible against Paul under
MRE 801(d)(2)(A) as an admission by a party opponent. Further, the statement does not qualify
as hearsay under MRE 801(c). It seems evident that the prosecution did not admit Paul’s
statement to prove the truth of the matter asserted (i.e., that defendants actually dropped the
victim off near her home on the night of her disappearance). Hence, the pertinent issue is
whether Matthew’s comment about why the police might interview Weston was hearsay and, if
so, whether it was admissible against Paul as an adoptive admission under MRE 801(d)(2)(B).
We conclude that Matthew’s statement does not qualify as hearsay under MRE 801(c). The
statement was not admitted to prove what it asserted, namely, why the police might have wanted
to interview Weston. Rather, the statement was admitted as evidence that defendants were
admittedly the last people seen with the victim. Thus, the trial court did not err by admitting
Weston’s challenged testimony.
3. CLARK’S TESTIMONY
Finally, both defendants challenge the trial court’s decision to admit Clark’s testimony
regarding admissions she heard defendants make. Regarding the first such statement, neither
defendant offers a persuasive argument. Clark testified that she heard both “bragging”
defendants say, “They had us once, they let us go, [and] we’re free and clear.” The prosecution
did not admit that statement to prove that defendants were actually “free and clear”; therefore,
the statement is not hearsay under MRE 801(c). And even if the “free and clear” statement did
otherwise qualify as hearsay, it would be admissible against both defendants under MRE
801(d)(2)(A) as an admission by a party opponent.
The second statement related through Clark’s testimony was also admissible against each
defendant under MRE 801(d)(2), albeit under different subparts of that rule. Clark testified that
she heard defendant Paul say
are hearsay. Matthew’s argument is a non sequitur. Put in laymen’s terms, Matthew’s argument
places the cart before the horse. As a general rule, hearsay statements cannot be admitted as
substantive evidence. People v Lundy, 467 Mich 254, 257; 650 NW2d 332 (2002). But it does
not follow from that premise that all substantive evidence is necessarily hearsay. On the
contrary, “[a]dmissions by a party are specifically excluded from hearsay and, thus, are
admissible as both impeachment and substantive evidence under MRE 801(d)(2).” Id. (emphasis
added).
-16-
that they had taken her [the victim] out to a party spot. She discovered there was
nobody out there, so she got out of the vehicle and started to leave. He said that
they chased her with the car, hit her, [and] knocked her down with the mirror of
the car. And then they got out of the vehicle and they grabbed something from
behind the vehicle, a log or something, and they started to hit her with it, and they
took turns having sex with her.
Because Clark testified that Paul made the above statement, it was admissible against him under
MRE 801(d)(2)(A). Contrastingly, the statement was admissible against Matthew as an adoptive
admission under MRE 801(d)(2)(B). Clark testified that when Paul made the statement in
question, Matthew was “[r]ight next to” Paul, both defendants were acting “cocky” and
“bragging,” and Matthew did not dispute the truth of what Paul said in any way. Instead,
Matthew nodded his head, and said “yes and uh-huh.” Hence, through both his oral assertions
and nonverbal conduct, Matthew manifested an adoption or belief in the truth of Paul’s
statements.
B. GREAT WEIGHT OF THE EVIDENCE
Next, defendants contend that the trial court abused its discretion by denying their
respective motions for a new trial based on the great weight of the evidence. We disagree.
“A verdict is against the great weight of the evidence if the evidence preponderates so
heavily against the verdict that it would be a miscarriage of justice to allow it to stand.” People v
Reid (On Remand), 292 Mich App 508, 513; 810 NW2d 391 (2011). “[A]bsent exceptional
circumstances, issues of witness credibility are for the jury, and the trial court may not substitute
its view of the credibility ‘for the constitutionally guaranteed jury determination thereof.’ ”
People v Lemmon, 456 Mich 625, 642; 576 NW2d 129 (1998), quoting Sloan v Kramer-Orloff
Co, 371 Mich 403, 411; 124 NW2d 255 (1963) (opinion of O’HARA, J.). Such “exceptional
circumstances” are situations where the testimony (1) “contradicts indisputable physical facts or
laws,” (2) “is patently incredible or defies physical realities,” (3) “is material and is so inherently
implausible that it could not be believed by a reasonable juror,” or (4) “has been seriously
impeached” leaving the remainder of the prosecution’s case “marked by uncertainties and
discrepancies.” Lemmon, 456 Mich at 643-644 (quotation marks and citations omitted). “If the
evidence is nearly balanced, or is such that different minds would naturally and fairly come to
different conclusions, the judge may not disturb the jury findings although his judgment might
incline him the other way.” Id. at 644 (quotation marks and citation omitted). Hence, as a
general rule, “when testimony is in direct conflict and testimony supporting the verdict has been
impeached, if ‘it cannot be said as a matter of law that the testimony thus impeached was
deprived of all probative value or that the jury could not believe it,’ the credibility of witnesses is
for the jury.” Id. at 643, quoting Anderson v Conterio, 303 Mich 75, 79; 5 NW2d 572 (1942).
Defendants’ instant claim of error hinges largely on their attack against the credibility of
Robinson and Corrigan. But although the evidence adduced at trial seriously undermined the
credibility of both witnesses—particularly Robinson—their testimony was not so inherently
implausible that it could not be believed by a reasonable juror. And even assuming, for the sake
of argument, that the jury believed that Robinson and Corrigan were completely dishonest—
tailoring their testimony out of whole cloth in hopes of securing Robinson favorable treatment—
-17-
there was still sufficient evidence to support the jury’s verdicts. Robinson and Corrigan were but
two of dozens of prosecution witnesses. The fact that Robinson and Corrigan might have
perjured themselves in this matter does not inexorably lead to the conclusion that all of the
incriminating testimony against defendants was also perjurious.
Matthew also contends that the testimony of other witnesses, including Clark, was
inherently implausible. Matthew argues that Clark was standing too far away from defendants to
overhear their conversations. But Clark testified that during each conversation she was standing
less than 10 yards from defendants, a mere 20 to 25 feet away. Both conversations took place
outdoors, where ambient noise from partygoers would not have been confined and amplified, and
defendants had been drinking on both occasions, which might well have impaired their ability to
regulate the volume of their speech. Defendants presented no evidence that Clark was physically
incapable of hearing spoken words from a distance of 10 yards, and given her young age during
the pertinent timeframe it seems altogether plausible that she could have done so. Clark’s
testimony that she overheard defendants was neither patently incredible nor did it contradict
indisputable physical facts.
Matthew further argues that Clark should not be believed because she did not report
defendants’ statements to the police promptly and because, before reporting such comments to
the police, Clark had spoken with Bonnor, who related details about the investigation to Clark.
But when asked by a jury-submitted question why she failed to report defendants’ comments
earlier, Clark responded, “I was under the assumption that the case was closed and didn’t think
that my statement was enough to convict anyone. I was one person with a very small child.”
Moreover, Tomich testified that Clark has a reputation in the community for being truthful, and
Clark denied that her discussions with Bonnor were the basis of her testimony against
defendants. Given such conflicting evidence, the jury was presented with a credibility
determination regarding Clark’s testimony; it was not testimony that no rational juror could
believe. If believed, Clark’s testimony, combined with the testimony about the condition of the
victim’s remains when they were found, was sufficient to support Matthew’s first-degree murder
conviction.11
11
To the extent that defendant Matthew argues, in the alternative, that there was insufficient
evidence for a rational trier of fact to find him guilty of first-degree murder, we hold that
Matthew has abandoned his argument by failing to sufficiently brief its merits. This Court does
not serve as a research assistant for the parties before it. See People v Kevorkian, 248 Mich App
373, 389; 639 NW2d 291 (2001) (“It is not enough for an appellant in his brief simply to
announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position. The appellant himself must first
adequately prime the pump; only then does the appellate well begin to flow.”) (quotation marks
and citation omitted). Defendant Matthew provides almost no analysis in support of his
sufficiency of the evidence argument, instead merely incorporating his argument about his
conviction being against the great weight of the evidence. Indeed, citations aside, Matthew’s
“analysis” spans just two sentences.
-18-
Although the evidence against defendants Paul and Matthew differed slightly because
certain testimony was presented to only one jury, for purposes of the instant analysis the identical
conclusion is appropriate as to both defendants. Because of the lack of physical evidence linking
defendants to the victim’s murder, this case boiled down to witness credibility. The trial court’s
decision not to disturb the credibility judgments underlying the jury’s verdict fell within the
range of reasonable and principled outcomes.
C. MISTRIAL
Defendant Paul argues that the trial court abused its discretion by denying his motion for
a mistrial based on the introduction of evidence that Paul offered to take a polygraph test. By
stipulating that the jury would be permitted to listen to the audio recording that purportedly
contained the word “polygraph,” however, defendant Paul waived any claim of error regarding
such evidence. See People v Gonzalez, 256 Mich App 212, 224; 663 NW2d 499 (2003)12
(“Because error requiring reversal cannot be error to which the aggrieved party contributed by
plan or negligence, defendant has waived appellate review of this issue.”). See also People v
Buie, 491 Mich 294, 309; 817 NW2d 33 (2012) (“A defendant is free to waive objections to
evidence by stipulation”) (quotation marks and citation omitted); People v Szalma, 487 Mich
708, 726; 790 NW2d 662 (2010) (“[A] party may not harbor error at trial and then use that error
as an appellate parachute[.]”). “[W]aiver extinguishes any error and precludes defendant from
raising the issue on appeal.” People v Carter, 462 Mich 206, 209; 612 NW2d 144 (2000).
D. CHANGE OF VENUE
In his Standard 4 brief, defendant Paul argues that the trial court abused its discretion by
denying his motion to change venue based on pretrial publicity and bias in the jury pool. But
Paul’s trial counsel waived the instant claim of error when, at the close of the jury selection
process, counsel indicated that the defense was “satisfied” with the jury impaneled and failed to
renew Paul’s motion to change venue. See People v Clark, 243 Mich App 424, 426; 622 NW2d
344 (2000) (“Defense counsel’s failure to renew the motion and his expression of satisfaction
with the jury waived the change of venue issue.”). Again, “waiver extinguishes any error and
precludes defendant from raising the issue on appeal.” Carter, 462 Mich at 209.
As an alternative argument, Paul contends that his trial counsel performed ineffectively
by approving the impaneled jury and failing to renew Paul’s motion to change venue. Paul’s
argument in this regard is unavailing.
A criminal defendant bears the burden of proving the factual predicate for a claim of
ineffective assistance of counsel. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Effective assistance of counsel is presumed, and the defendant bears a
heavy burden of proving otherwise. To establish an ineffective assistance of
counsel claim, a defendant must show that (1) counsel’s performance was below
12
Disapproval on other grounds 469 Mich 967 (2003).
-19-
an objective standard of reasonableness under prevailing professional norms and
(2) there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. A defendant must also show that the
result that did occur was fundamentally unfair or unreliable. [Lockett, 295 Mich
App at 187 (citations omitted).]
The “reviewing court must not evaluate counsel’s decisions with the benefit of hindsight,” but
should “ensure that counsel’s actions provided the defendant with the modicum of
representation” constitutionally required. People v Grant, 470 Mich 477, 485; 684 NW2d 686
(2004), citing Strickland v Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The decision whether to move for a change of venue is a matter of trial strategy, People v Aspy,
292 Mich App 36, 48; 808 NW2d 569 (2011), and “[d]efense counsel is given wide discretion in
matters of trial strategy because many calculated risks may be necessary in order to win difficult
cases,” People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008).
Here, before trial the judge below indicated that, due to the “intense publicity”
surrounding the case, he was allowing the attorneys to “collaborate on a proposed questionnaire”
that could be submitted to potential jurors along with their jury duty summonses. The trial judge
described the purpose of the questionnaire as follows:
[B]asically the subject of it would be whether or not any of the proposed jury
people had heard anything from any source or formed some decisions about this
case in terms of how it should be decided. So obviously we’re getting at whatever
media attention or from any other source; media or otherwise.
The trial judge explained that although it was his practice to conduct the majority of jury voir
dire himself, at the request of the parties he was going to provide “a little bit more latitude” for
the attorneys to engage in voir dire. The voir dire process in this case lasted nearly a full day,
and the trial judge asked prospective jurors whether they had any prejudice or bias regarding the
case, excusing those who did for cause. At the outset, a prospective juror who had not returned
the jury questionnaire enclosed with her summons was excused for cause after she revealed
preexisting bias about the case.
Given all of the precautions that were taken to ensure the impartiality of the jury, Paul
has failed to prove that his counsel’s decision to express satisfaction with the impaneled jury was
strategically unsound. Indeed, given the fact that counsel’s comment approving the impaneled
jury was made in the presence of the jurors, it seems that it was altogether prudent for counsel to
express satisfaction. Moreover, Paul has failed to establish that counsel’s decision not to renew
the motion to change venue was strategically ineffective. There is, perhaps, no area where trial
strategy is more subjective—and secretive—than in the area of jury selection. There are a
number of valid reasons that Paul’s counsel might, after seeing the jury his client had received,
have believed that it was better strategy to remain in Newaygo County than to request a change
of venue. Given the fact that defendants are lifelong residents of the area, counsel might have
believed that the “hometown” jury would favor defendants. Considering intangibles such as the
jurors’ educational levels, professions, ages, the gender balance, and so on, counsel might have
been pleased with the demographic makeup of the jury and might have believed that it was
unlikely Paul would obtain a more favorable jury after a change of venue. Indeed, the fact that
-20-
Paul was convicted of second-degree murder—not first-degree murder—tends to suggest that
Paul’s Newaygo jury was somewhat favorable to the defense. In any event, Paul certainly has
not carried his burden of presenting record evidence to rebut the strong presumption that his
counsel’s performance was both strategic and effective. Thus, the instant claim of error
necessarily fails.13
E. RELEVANCE
Finally, defendant Matthew argues that he was denied his right to a fair trial by the
prosecution’s “sandbagging” introduction of “a copious amount of irrelevant and inadmissible
evidence[.]” We disagree.
Matthew did not object below to the admission of the purportedly irrelevant evidence at
issue. Thus, this issue is unpreserved. See People v Douglas, 496 Mich 557, 574; 852 NW2d
587 (2014) (quotation marks and citation omitted).
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. [People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999) (quotation marks and citations omitted).]
“Reversal is warranted only when the plain, forfeited error resulted in the conviction of an
actually innocent defendant or when an error seriously affected the fairness, integrity or public
reputation of judicial proceedings independent of the defendant’s innocence.” Id. at 763-764(quotation marks, citations, and brackets omitted).
“All relevant evidence is admissible,” and the converse is equally true: “[e]vidence which
is not relevant is not admissible.” MRE 402. Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” MRE 401 (emphasis added).
Defendant Matthew’s argument of this issue seems to be based on a fundamental
misunderstanding of the role that our state’s prosecutors serve in criminal proceedings. The tacit
suggestion of Matthew’s argument is that the prosecution should only deem relevant that
13
Matthew also offers a perfunctory argument that his trial counsel performed ineffectively.
Matthew waived that claim of error, however, by failing to include it in his statement of
questions presented. See People v Fonville, 291 Mich App 363, 383; 804 NW2d 878 (2011)
(“Fonville has not properly presented this argument to this Court because he failed to identify it
as an issue in his statement of questions presented. Therefore, he has waived this issue for
appellate review.”) (footnote omitted). “[W]aiver extinguishes any error and precludes
defendant from raising the issue on appeal.” Carter, 462 Mich at 209.
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evidence which tends to make it more probable that the defendant is guilty, ignoring all other
evidence as irrelevant. Thus, in effect Matthew suggests that the prosecution should approach
cases with partisan zeal, treating the rules of evidence as an invitation to present only evidence
that will assist in securing a conviction. Matthew’s argument in this regard is directly contrary to
the venerable principle that a
[prosecuting] attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one. [People
v Buckey, 424 Mich 1, 33 n 26; 378 NW2d 432 (1985) (alteration in original),
quoting Berger v United States, 295 US 78, 88; 55 S Ct 629; 79 L Ed 1314(1935), overruled on other grounds Stirone v United States, 361 US 212, 215; 80
S Ct 270; 4 L Ed 2d 252 (1960).]
It is a cornerstone principle of American jurisprudence that the prosecution is under a constant
duty to reveal exculpatory evidence and to correct any false evidence of which it becomes aware.
See, e.g., People v Smith, 498 Mich 466, 482 n 8; 870 NW2d 299 (2015).
In light of such principles, Matthew’s argument is entirely unpersuasive. The vast
majority of the evidence that Matthew seeks to challenge on appeal was relevant not because it
was inculpatory but because it was potentially exculpatory. Such evidence includes the
testimony of the cold case team members who exhumed the victim’s body, performed various
forensic tests, and discovered no physical evidence linking defendants to the victim’s murder.
Such evidence also includes the physical evidence found in the general vicinity of the victim’s
remains (i.e., the table legs, the strands of hair, the lock blade pocket knife, the photo
identification card, the gas card, a plastic cup, and the pairs of pants), all of which were tested
without revealing any forensic evidence tying defendants to the victim’s murder. Defendants’
guilt or innocence was, of course, the fact of consequence to the determination of this case, and
all of the above evidence tended to make it less probable that defendants were guilty. The
evidence was not rendered any less relevant in that regard merely because it was introduced as
part of the prosecution’s proofs.
The remainder of the challenged evidence was relevant to provide the necessary context
and background for the jury to understand what occurred during the many years between the
victim’s death and trial. “[I]t is essential that prosecutors and defendants be able to give the jury
an intelligible presentation of the full context in which disputed events took place.” People v
Sholl, 453 Mich 730, 741; 556 NW2d 851 (1996).
Furthermore, although it is not as readily apparent, there was at least some logical
relevance undergirding Judy Decan’s testimony. Decan testified that she lived near the place
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where others testified that the victim’s remains were discovered. She further testified that some
night in July 1989—Decan could not recall the date—around 2:00 a.m., she was startled out of
sleep when she “heard a girl scream three times.” She also heard “a couple of men . . . yelling
something.” It sounded as if “maybe she [the screaming girl] was being hurt or something.”
Decan thought that the screaming incident happened during the early morning hours of a
Saturday or Sunday. Although Detective Miller opined that the victim was most likely murdered
on the night that she disappeared, the forensic expert testified that the date of death could only be
estimated as “sometime in July”—or possibly even August or September—of 1989. Thus,
Decan’s testimony had at least some relevance regarding the date of the victim’s death, tending
to make it more likely that the victim died sometime in July than thereafter. In any event, the
introduction of such testimony was not plainly erroneous.
Because all of the evidence Matthew challenges as irrelevant bore some logical relevance
to a fact of consequence to the determination of this case, the introduction of such evidence did
not constitute error, let alone plain error. Thus, Matthew’s instant claim of error necessarily
fails.
Affirmed.
/s/ Kurtis T. Wilder
/s/ William B. Murphy
/s/ Colleen A. O’Brien
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