People of Michigan v. Deontez Lamar Reese ( 2022 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 21, 2022
Plaintiff-Appellee,
v No. 349738
Wayne Circuit Court
DEONTEZ LAMAR REESE, LC No. 18-008812-01-FC
Defendant-Appellant.
Before: LETICA, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals by right his jury trial convictions of first-degree premeditated murder,
felon in possession of a firearm (felon-in-possession), carrying a concealed weapon (CCW),
carrying a weapon with unlawful intent, and three counts of possession of a firearm during the
commission of a felony (felony-firearm), second offense. Finding no errors warranting reversal,
we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arose after defendant shot and killed Maurice Campbell during the early evening
hours of June 21, 2018, in Detroit, Michigan. On that evening, Campbell was parked in the parking
lot of an apartment complex with his girlfriend, Lakeisha Hill. While it was still light outside, Hill
witnessed defendant approaching the car in an aggressive manner. Hill, who had never seen
defendant before, asked Campbell if he knew who was walking toward them. Campbell responded
by identifying the man as “Tez.” Defendant first approached Hill’s passenger-side window before
walking around the car to speak with Campbell. As Campbell and defendant began arguing,
defendant also identified himself as “Tez.” As the argument escalated, defendant drew a gun he
was carrying in the waistband of his pants—concealed under his shirt—and fatally shot Campbell
seven times. Hill was able to provide police with a description of the shooter and told them his
name was “Tez.”
Defendant ran out of the parking lot, down a side street, got in a white Dodge Charger, and
drove away. Marshall Winbush, who lived nearby, saw defendant get in the car and drive away.
Winbush noted the car was associated with someone who had family in the area, who Winbush
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knew as “Ivan.” Detective Jelani Dew of the Detroit Police Department found Ivan’s profile on
Facebook and discovered defendant was “friends” with Ivan. Because defendant fit Winbush’s
and Hill’s physical descriptions of the shooter, the police had Hill participate in a photographic
lineup. Hill immediately identified defendant’s photograph as the person she saw shoot Campbell.
Before trial, the prosecution sought to admit other-acts evidence related to defendant under
MRE 404(b)(1). This evidence centered on a video of a traffic stop of defendant driving a white
Charger. The trial court overruled defendant’s objection to the evidence on the grounds that it was
unfairly prejudicial and admitted the evidence. During trial, the court denied defendant’s attempts
to introduce evidence that Campbell’s brother was murdered before him, and evidence that Ivan
had a friend named “All Hail AlmightyTezz” on Facebook. The trial court determined the
evidence was irrelevant, and thus, inadmissible.
Defendant was convicted by a jury and was sentenced to life imprisonment without the
possibility of parole for his first-degree premeditated murder conviction; three to five years’
imprisonment for each of his felon-in-possession, CCW, and carrying a weapon with unlawful
intent convictions; and five years’ imprisonment for each of his felony-firearm convictions. After
trial, defendant moved the trial court either to grant him a new trial or to hold a Ginther1 hearing
regarding his claims of ineffective assistance of counsel. The trial court denied the motion, and
this appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant contends he was denied the effective assistance of counsel during
trial, or, alternatively, that this Court should reverse the trial court’s denial of his request for a
Ginther hearing. We will address each argument in turn.
A. SUBSTANTIVE CLAIMS
Defendant argues his defense counsel rendered ineffective assistance during his trial
because counsel failed to object to hearsay evidence, did not call alibi witnesses for defendant, and
failed to object to improper vouching by the prosecution during closing argument. We disagree.
1. STANDARD OF REVIEW
“A claim of ineffective assistance of counsel is a mixed question of law and fact.” People
v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). “A trial court’s findings of fact, if any,
are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from
an ineffective assistance of counsel claim de novo.” Id. “Where, as here, there has been no
evidentiary hearing on the issue below . . . our review is limited to errors apparent on the record.”
People v Seals, 285 Mich App 1, 19-20; 776 NW2d 314 (2009).
2. ANALYSIS
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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“Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions.” People v Schrauben, 314 Mich App 181, 189-190; 886 NW2d
173 (2016), citing US Const, Am VI; Const 1963, art 1, § 20. “However, effective assistance of
counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” Schrauben,
314 Mich App at 190. “[T]o receive a new trial on the basis of ineffective assistance of counsel,
a defendant must establish that ‘counsel’s representation fell below an objective standard of
reasonableness’ and that ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ” People v Vaughn, 491 Mich 642,
669; 821 NW2d 288 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984). “When reviewing defense counsel’s performance, the reviewing
court must first objectively ‘determine whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally competent assistance.’ ” People v
Jackson (On Reconsideration), 313 Mich App 409, 431; 884 NW2d 297 (2015), quoting
Strickland, 466 US at 690. “Next, the defendant must show that trial counsel’s deficient
performance prejudiced his defense—in other words, that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Jackson, 313 Mich App at 431, quoting Vaughn, 491 Mich at 669.
This Court will not find trial counsel to be ineffective where an objection would have been
futile; nor will it second-guess matters of trial strategy. People v Thomas, 260 Mich App 450,
457; 678 NW2d 631 (2004); People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Trial counsel has “wide discretion in matters of trial strategy because many calculated risks may
be necessary in order to win difficult cases.” People v Odom, 276 Mich App 407, 415; 740 NW2d
557 (2007). “The defendant ‘bears the burden of demonstrating both deficient performance and
prejudice[;] the defendant [also] necessarily bears the burden of establishing the factual predicate
for his claim.’ ” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015), quoting People
v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) (alteration in Cooper).
Defendant first argues defense counsel was ineffective for failing to object to inadmissible
hearsay evidence. Under the Michigan Rules of Evidence, “ ‘[h]earsay’ 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.” MRE 801(c). “Hearsay evidence is inadmissible unless it falls
within one of the exceptions listed in the Michigan Rules of Evidence.” People v Solloway, 316
Mich App 174, 199; 891 NW2d 255 (2016).
Defendant specifically challenges the testimony made by Hill when she was describing the
events leading up to Campbell’s death. Hill stated she and Campbell had discussed a man named
“Tez” on the night before the shooting and, on the day of the murder, Hill saw defendant
approaching Campbell’s vehicle in an aggressive manner. Hill asked Campbell if he knew the
man approaching the car, to which Campbell apparently responded, “[t]hat’s that n***a. That’s,
that n***a I was telling you about, Tez.” Defendant now contends that defense counsel was
ineffective for failing to object because the testimony was inadmissible hearsay.
As noted above, hearsay generally is inadmissible, but there are exceptions to the rule.
Solloway, 316 Mich App at 199, citing MRE 802. “[A] present sense impression is defined under
MRE 803(1) as ‘[a] statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.’ ” People v Bowman,
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254 Mich App 142, 145; 656 NW2d 835 (2002). There are three requirements for an out-of-court
statement to be admissible as a present sense impression: “(1) the statement must provide an
explanation or description of the perceived event, (2) the declarant must have personally perceived
the event, and (3) the explanation or description must have been made at a time substantially
contemporaneous with the event.” People v Chelmicki, 305 Mich App 58, 63; 850 NW2d 612
(2014) (quotation marks and citation omitted). “The principle underlying this exclusion is that the
substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious
misrepresentation.” People v Hendrickson, 459 Mich 229, 235; 586 NW2d 906 (1998) (quotation
marks and citation omitted).
Defense counsel did not render ineffective assistance with respect to these statements
because any objection would have been futile, as Campbell’s statements fall within the present
sense impression exception to hearsay. See Thomas, 260 Mich App at 457. All three requirements
are met with respect to Hill’s testimony about Campbell’s statement as he saw defendant walking
toward the car.
First, the statement “provide[d] an explanation or description of the perceived event . . . .”
Chelmicki, 305 Mich App at 63. Hill asked Campbell if he knew who was walking toward the car.
Campbell observed the man approaching the car and him to Hill as “Tez.” Second, Campbell
“personally perceived the event,” because he watched as defendant approached the vehicle. Id.
And third, Campbell’s “explanation or description [was] made at a time substantially
contemporaneous with the event.” Id. (quotation marks and citation omitted). According to Hill,
Campbell made his statement as soon as she asked him who was approaching the vehicle. Notably,
Hill also testified defendant walked quickly toward the vehicle, and only a few seconds passed
between when she noticed him and when he arrived. Thus, in those same few seconds, Hill saw
defendant walking up, pointed him out, and Campbell provided his identification. The timing
essentially was instantaneous and, therefore, occurred contemporaneously with defendant walking
up to the car. Accordingly, Hill’s testimony was admissible as a present sense impression under
MRE 803(1). Chelmicki, 305 Mich App at 63.
Even if defense counsel had objected to Hill’s testimony, the objection would have been
overruled because the evidence was admissible under a hearsay exception, MRE 803(1).
Therefore, defendant’s argument of ineffective assistance of counsel must fail, because “[f]ailing
to advance a meritless argument or raise a futile objection does not constitute ineffective assistance
of counsel.” People v Wang, 505 Mich 239, 253 n 22; 952 NW2d 334 (2020) (quotation marks
and citation omitted).
Next, defendant contends that his counsel was ineffective for failing to object to a statement
of the prosecutor during rebuttal closing argument in which he claims the prosecutor improperly
vouched for Hill. Implicit in defendant’s argument is the contention that the prosecutor committed
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misconduct during rebuttal argument, which necessitated an objection from defense counsel.2 To
address this claim, we must first consider whether the prosecutor actually engaged in misconduct.
“A prosecutor ‘is the representative . . . 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.’ ” People v Evans,
335 Mich App 76, 89; 966 NW2d 402 (2020), quoting Berger v United States, 295 US 78, 88; 55
S Ct 629; 79 L Ed 2d 1314 (1935). This Court “evaluate[s] instances of prosecutorial misconduct
on a case-by-case basis, reviewing the prosecutor’s [actions] in context and in light of the
defendant’s arguments.” People v Lane, 308 Mich App 38, 62-63; 862 NW2d 446 (2014).
“Generally, ‘prosecutors are accorded great latitude regarding their arguments and conduct.’ ”
People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995) (citation omitted). “They are free to
argue the evidence and all reasonable inferences from the evidence as it relates to [their] theory of
the case.” Id. (quotation marks and citation omitted; alteration in original). In making those
arguments, “[t]he prosecutor need not speak in the blandest of all possible terms.” People v
Blevins, 314 Mich App 339, 355; 886 NW2d 456 (2016) (quotation marks and citation omitted).
During closing arguments, the prosecutor stated: “There is no way that Ms. Hill has
misidentified the Defendant. That is a face she will never forget.” Defendant insists this statement
improperly vouched for Hill’s identification of defendant as the shooter. While it is true that “[a]
prosecutor may not vouch for the credibility of a witness by conveying to the jury that he has some
special knowledge that the witness is testifying truthfully,” People v Clark, 330 Mich App 392,
434; 948 NW2d 604 (2019), “a prosecutor may comment on his own witnesses’ credibility during
closing argument, especially when there is conflicting evidence and the question of the defendant’s
guilt depends on which witnesses the jury believes.” Jackson, 313 Mich App at 426 (quotation
marks and citation omitted). In other words, while a prosecutor is not permitted to vouch for the
credibility of their witnesses or to “suggest that the government has some special knowledge that
the witness is testifying truthfully,” the prosecution “may [] argue from the facts that a witness is
credible or that the defendant or another witness is not worthy of belief.” People v Howard, 226
Mich App 528, 548; 575 NW2d 16 (1997).
Reviewing the challenged statement by the prosecutor in context, it is clear the statement
was not improper vouching. In the simplest terms, the prosecutor’s argument was the jury should
believe Hill’s identification of defendant because it was supported by the facts of the case. Hill
knew the man’s name was “Tez” from when the shooting occurred. She provided a physical
description of the shooter, which matched defendant. And, within 24 hours of the shooting, Hill
identified defendant as the shooter in a photographic lineup. Given all of those facts, the prosecutor
argued Hill’s identification was worthy of belief.
The prosecutor did not purport to have special knowledge of Hill or her veracity in the
case. Instead, the argument properly focused on the facts admitted at trial and that the jury should
find Hill’s testimony credible. Consequently, this argument by the prosecutor did not amount to
2
We employ the phrase “prosecutorial misconduct” as a term of art synonymous with
“prosecutorial error,” not as an indication that the prosecution engaged in intentional misconduct.
Jackson, 313 Mich App at 425 n 4.
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misconduct. Clark, 330 Mich App at 434; Jackson, 313 Mich App at 426. As a result, even if
defense counsel had objected to the prosecutor’s argument, it would have been a futile objection.
Therefore, defendant’s argument of ineffective assistance of counsel must fail.
Lastly, defendant contends defense counsel was ineffective for failing to call purported
alibi witnesses at trial. “Decisions regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy, and this Court will not substitute
its judgment for that of counsel regarding matters of trial strategy.” People v Muhammad, 326
Mich App 40, 66; 931 NW2d 20 (2018) (quotation marks and citation omitted). In other words,
this Court “will not second-guess strategic decisions with the benefit of hindsight.” People v
Dunigan, 299 Mich App 579, 590; 831 NW2d 243 (2013). “As with any other claim of ineffective
assistance, [] defendant has the burden of establishing the factual predicate of his ineffective
assistance claim.” People v White, 331 Mich App 144, 148; 951 NW2d 106 (2020) (quotation
marks and citation omitted).
Defendant claims defense counsel should have called Charie Johnson and Christopher
Foaster, whom he identifies as alibi witnesses. During the trial court proceedings, defense counsel
filed a notice of an alibi defense, which identified Johnson as a potential alibi witness, but did not
reference Foaster. At trial, when asked if he planned to call any witnesses, defense counsel told
the trial court he would not be calling any alibi witnesses. On appeal, defendant states the
witnesses would have made a difference at trial. However, the record contains no information
regarding the proposed testimony of Foaster and, while defendant provided his own affidavit, he
only says the alibi witnesses “were willing to testify on [his] behalf.” The affidavit does not
provide any detail as to the content of such purported testimony. Therefore, there is no evidence
to support defendant’s argument that the testimony of Foaster would have been beneficial to the
defense, and defendant has failed to meet his “burden of establishing the factual predicate of his
ineffective assistance claim” with respect to Foaster. See White, 331 Mich App at 148 (quotation
marks and citation omitted).
While the same cannot be said to be true for Johnson, we nevertheless conclude that counsel
was not ineffective for failing to call her as a witness. Johnson was identified as an alibi in
defendant’s pretrial notice and, when coupled with defendant’s pro se affidavit, was sufficient to
satisfy defendant’s burden to establish a factual predicate. However, the record demonstrates that
counsel made a strategic decision not to call Johnson at trial. Defense counsel initially informed
the court during jury selection that he might “not call anybody” but stated that “Mr. Reese may
testify, [a] fellow named Christopher Head and a young lady named Shanae (phonetic) [sic]
Johnson.” During trial, however, when the court specifically inquired about the alibi, counsel
appeared to retreat from presenting the listed alibi witnesses, stating: “I don’t think, I’m going to
do anything with it.”
After the trial court obtained a copy of the alibi notice, it asked whether all the witnesses
listed would be called. Defense counsel responded that he was “not going to call anybody” on the
alibi list. Later that same day, defendant declined to testify and defense counsel indicated that he
might call witnesses depending on how the court ruled on the emergency motion to add a witness.
The next day, defendant rested without calling any witnesses. Thus, the record demonstrates that
counsel made a strategic choice not to call the listed alibi witness, “and this Court will not
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substitute its judgment for that of counsel regarding matters of trial strategy.” See Muhammad,
326 Mich 66 (quotation marks and citation omitted).
In sum, defendant has failed to satisfy his burden to establish that his trial counsel provided
ineffective assistance of counsel during his trial. The challenged hearsay statement was admissible
as a present sense impression and the prosecutor did not improperly vouch for Hill. And defendant
has failed to provide any evidence that Foaster could offer relevant testimony or that the decision
to forgo Johnson’s testimony was not a matter of sound trial strategy. Thus, counsel’s performance
did not fall below the objective standard of reasonableness, and we affirm defendant’s convictions.
B. GINTHER HEARING
Defendant also argues this Court should reverse the trial court’s order denying his motion
for a Ginther hearing. We disagree.
1. STANDARD OF REVIEW
A trial court’s decision whether to grant an evidentiary hearing, such as a Ginther hearing,
is reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 216-217; 749 NW2d
272 (2008). “An abuse of discretion occurs when the court chooses an outcome that falls outside
the range of reasonable and principled outcomes.” Id. at 217.
2. ANALYSIS
The trial court did not abuse its discretion when it denied defendant’s motion for a Ginther
hearing.
Defendant contends he was entitled to a Ginther hearing to establish a factual record
supporting his claims of ineffective assistance of counsel. In Michigan, a Ginther hearing is a
method by which “[a] defendant who wishes to advance claims that depend on matters not of
record can properly . . . seek at the trial court level an evidentiary hearing for the purpose of
establishing his claims . . . .” People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). A
Ginther hearing is not warranted if the “defendant has not set forth any additional facts that would
require development of a record to determine if defense counsel was ineffective . . . .” People v
Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007).
Defendant asserts a Ginther hearing should have been held regarding his claims of
ineffective assistance of counsel related to Hill’s hearsay testimony and the prosecutor’s improper
vouching. However, as discussed above, Hill’s testimony was admissible under the present sense
impression exception under MRE 803(1), and the prosecutor did not engage in improper vouching.
Defendant has not explained how a Ginther hearing would have led to a factual record relevant to
those conclusions. Instead, the record is clear that any objection by defense counsel on those
grounds would have been overruled, regardless of any additional factual record created at a Ginther
hearing. Therefore, with respect to defendant’s arguments regarding hearsay and improper
vouching, “defendant has not set forth any additional facts that would require development of a
record to determine if defense counsel was ineffective . . . .” Williams, 275 Mich App at 200.
Consequently, the trial court did not abuse its discretion by refusing to hold a Ginther hearing as
related to those two issues. Unger, 278 Mich App at 216-217; Williams, 275 Mich App at 200.
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Defendant also argues, however, that a Ginther hearing was required to explore why
defense counsel did not call Johnson and Foaster as alibi witnesses. Defendant has failed to show
a Ginther hearing was required. While defendant provided an affidavit related to this issue, as it
relates to Foaster, the affidavit was an insufficient attempt to “set forth any additional facts that
would require development of a record” in this case. Williams, 275 Mich App at 200. As discussed
in the previous section above, defendant’s affidavit only identified that Johnson and Foaster were
alibi witnesses that were available to testify at trial but were not called by defense counsel.
Defendant’s affidavit does not, however, provide any detail as to the content of the purported
testimony that would be provided by the witnesses. Thus, with respect to Foaster, the trial court
did not abuse its discretion by denying defendant’s motion for a Ginther hearing. See People v
Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994) (concluding claim of ineffective assistance
premised on the failure to call a witness must fail if “no evidence has been presented to establish
that the alibi witness would have testified favorably at trial”).
With respect to Johnson, the only additional connection to an alibi defense was the notice
filed by defense counsel during pretrial proceedings, in which Johnson is identified as a potential
alibi. While we believe the notice, when paired with defendant’s affidavit, was sufficient to
provide an offer of proof regarding his claim, the argument still must fail. The record indicates
that defense counsel made a strategic decision not to call Johnson as an alibi witness, and we will
not second guess such matters of strategy. See Muhammad, 326 Mich 66 (“[T]his Court will not
substitute its judgment for that of counsel regarding matters of trial strategy.”) (quotation marks
and citation omitted).
III. RIGHT TO PRESENT A DEFENSE AND TO A FAIR TRIAL
Next, defendant argues his constitutional rights were violated by the trial court’s decision
to limit his ability to call witnesses and introduce evidence. Specifically, defendant attempted to
admit evidence regarding Ivan’s Facebook friend, “All Hail AlmightyTezz,” and evidence
regarding the murder of Campbell’s brother, all of which was denied after objection from the
prosecutor. We disagree that defendant’s constitutional rights were violated and affirm his
convictions.
A. STANDARD OF REVIEW
We “review[] for an abuse of discretion a circuit court’s decision to admit or exclude
evidence.” People v Kowalski, 492 Mich 106, 119; 821 NW2d 14 (2012). “The decision to admit
evidence is within the trial court’s discretion and will not be disturbed unless that decision falls
outside the range of principled outcomes.” People v Thorpe, 504 Mich 230, 251-252; 934 NW2d
693 (2019) (quotation marks and citations omitted). Generally, we “review de novo constitutional
questions and issues of law underlying evidentiary rulings.” Kowalski, 492 Mich at 119.
However, defendant failed to preserve the issue of whether the trial court’s decision to not admit
evidence regarding the murder of Campbell’s brother violated his constitutional rights because he
did not argue in the trial court that the exclusion of such evidence would violate his rights. See
Thorpe, 504 Mich at 252 (“To preserve an evidentiary issue for review, a party opposing the
admission of evidence must object at trial and specify the same ground for objection that it asserts
on appeal.”). “To avoid forfeiture under the plain error rule, three requirements must be met: 1)
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error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
Defendant contends the trial court improperly and unconstitutionally hamstrung his
defense by refusing to allow defendant to admit the challenged evidence. Although defendant has
framed this issue as implicating a plethora of his constitutional rights, the relatively straight-
forward issue is whether the trial court properly limited defendant’s introduction of evidence
regarding “All Hail AlmightyTezz,” and questioning of Hill about Campbell’s brother. As to
defendant’s claim he was denied the right to present a defense, “[t]here is no doubt that based on
the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s Compulsory
Process or Confrontation Clauses, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” People v King, 297 Mich App 465, 473; 824 NW2d
258 (2012) (quotation marks and citations omitted). This right “includes the right to call
witnesses.” People v Zitka, 335 Mich App 324, 332; 966 NW2d 786 (2020) (quotation marks and
citation omitted). However, even with the constitutional right to present a defense, “an accused
must still comply with established rules of procedure and evidence designed to assure both fairness
and reliability in the ascertainment of guilt and innocence.” King, 297 Mich App at 474 (quotation
marks and citations omitted). “The Michigan Rules of Evidence do not infringe on a defendant’s
constitutional right to present a defense unless they are arbitrary or disproportionate to the purposes
they are designed to serve.” Id. (quotation marks and citations omitted). Stated differently, “the
right to present a defense extends only to relevant and admissible evidence.” Zitka, 335 Mich App
at 333 (quotation marks and citation omitted). As to defendant’s fair trial argument, “ ‘[a]n
important element of a fair trial is that a jury consider only relevant and competent evidence
bearing on the issue of guilt or innocence . . . .’ ” People v Hana, 447 Mich 325, 350; 524 NW2d
682 (1994), amended 447 Mich 1203 (1994), quoting Zafiro v United States, 506 US 534, 540;
113 S Ct 933; 122 L Ed 2d 317 (1993).
The dispute at trial revolved around the relevance of the evidence sought to be introduced
by defendant. Under MRE 401, “ ‘[r]elevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” The Michigan Rules of Evidence
also provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State of Michigan, these rules, or other
rules adopted by the Supreme Court.” MRE 402. “[A] material fact need not be an element of a
crime or cause of action or defense but it must, at least, be ‘in issue’ in the sense that it is within
the range of litigated matters in controversy.” Zitka, 335 Mich App at 333-334 (quotation marks
and citation omitted; alteration in original).
Defendant’s theory of relevance focuses on the primary dispute during the trial: the identity
of the shooter. One of defendant’s theories of the case was that he did not shoot Campbell and
was misidentified as the shooter. Defendant contended that as a result of Campbell’s alleged
participation in the drug trade, he had evidence demonstrating that other people in the
neighborhood had a significant motive to see Campbell murdered. The trial court allowed this
theory of the case to an extent. Pertinently, defendant introduced evidence that Campbell was
involved in the drug trade, was not liked by some people in the neighborhood, and had drugs in
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the back of his car. Defendant provided more specific evidence, which the trial court also admitted,
of Hill seeing a social media post by another individual who asked, “Who is the King of Beirut
now.” The implication from the evidence that defendant wanted the jurors to draw was that
Anderson had killed Campbell and was now the “King” of the neighborhood. The trial court also
permitted the defense to ask Hill about a telephone call she received after the murder from an
unknown number in which an unidentified male said he planned to kill Hill and Campbell’s
brothers.
Despite allowing the above evidence, the trial court determined two pieces of evidence
were irrelevant and, thus, inadmissible. First, defendant sought to question Hill if Campbell’s
brother had been murdered before him. Defendant contends this testimony, when coupled with
the telephone call from the unidentified male discussed above, was relevant because it tended to
show Campbell’s family was targeted for being involved in the drug trade. However, there was
no evidence to conclude the telephone call at issue was related to Campbell’s alleged involvement
in the drug trade. Indeed, there was no evidence Campbell’s family was involved in drug dealing.
Moreover, the telephone call did not bolster defendant’s theory of relevance because the call
occurred after Campbell’s death, yet contained a threat to kill the brother, who apparently had died
before the call.
While defendant’s identity as the shooter was an issue of dispute at trial, defendant was
required to show how the brother’s murder was probative of the issue of whether defendant shot
Campbell. Because his theory of relevance relies on connections between the evidence that simply
do not exist, defendant’s argument regarding this evidence fails. In short, there was no evidence
the brother was involved in drug dealing. Considering the evidence at issue was not relevant to
defendant’s identity as the shooter, the trial court did not abuse its discretion, let alone plainly err,
by ruling it was inadmissible. MRE 401; MRE 402. Further, as this Court has held, “[a] criminal
defendant’s constitutional right to present a defense [is not] infringed by MRE 402, which simply
bars the admission of irrelevant evidence.” Unger, 278 Mich App at 250. Thus, this argument
lacks merit.
Next, defendant challenges the trial court’s decision to bar testimony about “All Hail
AlmightyTezz.” Defendant again argued this evidence was relevant to identity, the primary issue
at trial. His theory of relevance regarding identity, however, fails. During trial, Detective Dew
testified he identified defendant by searching Facebook. Before that discovery on social media,
he had been told by witnesses that the shooter had fled the scene of the crime in a white Charger,
which was associated with someone named “Ivan.” Detective Dew then found “Ivan,” who he
claimed was “Ivan Lazar,” on Facebook. Detective Dew searched Ivan’s Facebook friends for
“Tez” and found defendant’s profile.
At trial, defendant sought to introduce evidence of Ivan Lazar also being Facebook friends
with someone named “All Hail AlmightyTezz.” Defendant believed the evidence of this friend
was relevant because it showed Detective Dew might have identified the wrong “Tez” when
searching Ivan’s friend list. However, this theory of relevance assumes defendant was only
identified as the shooter because Detective Dew found he was friends with Ivan. Instead, the
record demonstrates that in addition to the Facebook discovery, defendant fit the physical
description of the shooter provided by Hill and Winbush, and was identified by Hill in a lineup.
There was no similar evidence related to “All Hail AlmightyTezz.” Further, defendant failed to
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establish that the person who owned the profile fit the description of the shooter provided by the
eyewitnesses as the record as presented to this Court establishes “All Hail AlmightyTezz” had
longer hair, lighter skin, and a thinner build.
Defendant also failed to connect “All Hail AlmightyTezz” to this crime in any other way.
Specifically, one of defendant’s theories was that Campbell’s murder was related to his purported
involvement in the drug trade. Defendant did not establish “All Hail AlmightyTezz” was involved
in the drug trade in any manner. Further, defendant presented no evidence or claim that “All Hail
AlmightyTezz” was somehow associated with Campbell, his family, or Hill, which would have
provided at least minimal support “All Hail AlmightyTezz” had some reason to kill Campbell.
Additionally, defendant failed to present any evidence that “All Hail AlmightyTezz” was friends
with Ivan Lazar at the time the murder was committed, which was the relevant time when Ivan’s
white Charger was seen fleeing the scene of the shooting.
In sum, the only evidence identified by defendant as connecting “All Hail AlmightyTezz”
with Campbell’s murder was a friendship with Ivan, who was only tangentially related to this case.
While defendant insists evidence about “All Hail AlmightyTezz” is relevant because defendant’s
witness found the profile the same way Detective Dew found defendant’s Facebook profile, the
situations are barely similar. Detective Dew did not merely identify defendant’s profile and end
the investigation there. To the contrary, defendant’s association with this case was established by
ample other evidence, including fitting the physical description of the shooter, having been found
to have recently purchased a white Charger, and a tattoo on his body which showed he actually
went by the name “Tez.” There was no evidence in quality or quantity as related to “All Hail
AlmightyTezz.” The reference to the name “Tez” in his profile and being friends with Ivan simply
was not enough to show the evidence was probative of “All Hail AlmightyTezz” being somehow
involved in Campbell’s murder.
Consequently, the trial court did not abuse its discretion by ruling the evidence at issue was
irrelevant, MRE 401, and thus, inadmissible, MRE 402. Further, because “[a] criminal defendant’s
constitutional right to present a defense [is not] infringed by MRE 402, which simply bars the
admission of irrelevant evidence,” defendant has also failed to prove a constitutional violation
occurred. Unger, 278 Mich App at 250. Finally, his claim of a violation of his right to a fair trial
must suffer the same fate, because “ ‘[a]n important element of a fair trial is that a jury consider
only relevant and competent evidence bearing on the issue of guilt or innocence . . . .’ ” Hana,
447 Mich at 350, quoting Zafiro, 506 US at 540. Therefore, by ensuring irrelevant evidence was
not admitted at trial, the court did not violate defendant’s right to a fair trial. Hana, 447 Mich
at 350.
IV. OTHER-ACTS EVIDENCE
In his last claim on appeal, defendant argues he is entitled to a new trial because of improper
admission of a video showing defendant being arrested on an unrelated charge, contending it is
improper other-acts evidence. We disagree.
A. STANDARD OF REVIEW
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This Court “reviews for an abuse of discretion a circuit court’s decision to admit or exclude
evidence.” Kowalski, 492 Mich at 119. “The decision to admit evidence is within the trial court’s
discretion and will not be disturbed unless that decision falls outside the range of principled
outcomes.” Thorpe, 504 Mich at 251-252 (quotation marks and citations omitted). This Court
“review[s] de novo constitutional questions and issues of law underlying evidentiary rulings.”
Kowalski, 492 Mich at 119.
However, defendant did not preserve this argument for appeal because he did not argue in
the trial court that the evidence was inadmissible under MRE 404(b) or excludable under MRE
403. Thus, to prevail, “defendant must show a plain error that affected substantial rights.” Thorpe,
504 Mich at 252. “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.” Carines, 460 Mich at 763.
B. ANALYSIS
Defendant contends the evidence of his previous traffic stop, in which he was handcuffed
and ticketed, should not have been admitted under MRE 404(b)(1) or should have been excluded
under MRE 403. MRE 404(b) regulates the admissibility of evidence of “[o]ther crimes, wrongs,
or acts . . . .” Indeed, MRE 404(b)(1) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity therewith.”
The Michigan Supreme Court explained that the rule is one “ ‘of legal relevance’ that ‘limits only
one category of logically relevant evidence’: ‘[i]f the proponent’s only theory of relevance is that
the other act shows defendant’s inclination to wrongdoing in general to prove that the defendant
committed the conduct in question, the evidence is not admissible.’ ” People v Jackson, 498 Mich
246, 258; 869 NW2d 253 (2015), quoting People v VanderVliet, 444 Mich 52, 61-63; 508 NW2d
114 (1993), amended 445 Mich 1205 (1994). “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.” People v Watkins, 491 Mich 450, 468; 818
NW2d 296 (2012). MRE 404(b), however, “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 Mardlin, 487 Mich 609, 616; 790
NW2d 607 (2010). That “nonexhaustive list of reasons” includes “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)(1).
Defendant also contends the evidence should have been excluded under MRE 403. Under
that rule, even relevant and otherwise admissible evidence “may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.” MRE 403. Notably, MRE 403
does not regulate evidence that is simply “prejudicial” because “[r]elevant evidence is inherently
prejudicial.” People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995) (citation omitted), mod 450
Mich 1212 (1995). Rather, it is “only when the probative value is substantially outweighed by the
danger of unfair prejudice that evidence is excluded.” Id. “First, this Court must decide whether
introduction of [the] evidence at trial was unfairly prejudicial. Then, this Court must apply the
balancing test and weigh the probativeness or relevance of the evidence against the unfair
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prejudice.” People v Cameron, 291 Mich App 599, 611; 806 NW2d 371 (2011) (quotation marks
and citation omitted).
“Unfair prejudice may exist where there is a danger that the evidence will be given undue
or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.”
People v Gipson, 287 Mich App 261, 263; 787 NW2d 126 (2010), quoting People v Blackston,
481 Mich 451, 462; 751 NW2d 408 (2008). In other words, the “major function [of MRE 403] is
limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the
sake of its prejudicial effect.” Mills, 450 Mich at 75 (citation omitted). Such concerns arise where
“the tendency of the proposed evidence [is] to adversely affect the objecting party’s position by
injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias, sympathy,
anger, or shock.” Cameron, 291 Mich App at 611 (quotation marks and citation omitted).
Additional concerns include “the danger of confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Watkins, 491 Mich at 489 (quotation marks and citation omitted).
The Michigan Supreme Court has reduced the above caselaw into a four-part test to
determine whether other-acts evidence was properly admitted at trial:
First, that the evidence be offered for a proper purpose under Rule 404(b); second,
that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
probative value of the evidence is not substantially outweighed by unfair prejudice;
fourth, that the trial court may, upon request, provide a limiting instruction to the
jury. [People v Denson, 500 Mich 385, 398; 902 NW2d 306 (2017), quoting
VanderVliet, 444 Mich at 55.]
For the first step, during the trial court proceedings, the prosecution argued the other-acts
evidence was being offered to prove identity, which is a proper purpose listed under MRE
404(b)(1). Denson, 500 Mich at 398. Having identified a proper purpose under MRE 404(b)(1),
the next question is whether the other-acts evidence at issue was actually relevant to proving
identity. Our Supreme Court has “emphasized the importance of logical relevance, calling it the
‘touchstone’ of the admissibility of other-acts evidence.” Denson, 500 Mich at 401. “Other-acts
evidence is logically relevant if two components are present: materiality and probative value.” Id.
“Materiality is the requirement that the other-acts evidence be related to any fact that is of
consequence to the action.” Id. (quotation marks and citation omitted). “Evidence is probative if
it tends ‘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.’ ” Id. at 401-402, quoting
MRE 401. When discussing probative value under MRE 404(b)(1), “the proffered evidence truly
must be probative of something other than the defendant’s propensity to commit the crime.”
Denson, 500 Mich at 402 (quotation marks, citation, and emphasis omitted).
Defendant’s identity as the shooter was material to this case. Indeed, almost all of
defendant’s strategy of defense focused on portraying him as being misidentified by Hill.
Therefore, the prosecution’s proposed purpose for the evidence, which was identity, was a “fact
that is of consequence to the action.” Id. at 401 (quotation marks and citation omitted).
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The other-acts evidence also was probative of defendant’s identity as the person who shot
and killed Campbell. The video and testimony about defendant’s traffic stop was probative of
identity for two separate and distinct reasons. First, the video showed defendant as he appeared
on June 4, 2018, approximately two weeks before the shooting. Importantly, in the video,
defendant matched the physical description provided to police by Hill. One of Hill’s descriptors
was about the shooter’s hair, which was in shorter braids, dreadlocks, or “twisties.” Winbush said
the man running from the scene of the shooting while carrying a gun also wore his hair in that
style. In the video of the traffic stop, defendant wore his hair in shorter braids or dreadlocks. At
the time of trial, according to the prosecution, defendant had changed the style of his hair. Thus,
the traffic stop video was probative of defendant’s identity because it showed defendant matched
the description of the shooter just 17 days before the shooting. The probative value was increased
by defendant’s change of hairstyle before trial, which could have affected whether the jury
believed Hill’s and Winbush’s description of someone with braids or dreadlocks.
Second, the other-acts evidence also was probative of defendant’s identity because it
established that he had just purchased and was driving a white Charger days before the murder.
Other than a description of the shooter’s physical appearance, Winbush also testified the shooter
got into a white Charger parked on a side street and drove away. According to an officer who
canvassed the neighborhood, he had interviewed someone who lived in the area, and said he also
saw the shooter drive off in a white Charger. Officer Michael El Hage’s testimony and the video
of the traffic stop showed defendant driving a white Charger. It also contained a statement from
defendant that he had just purchased the white Charger.
Because testimony at trial established the shooter drove away from the scene of the crime
in a white Charger, evidence establishing defendant had just purchased a white Charger and was
driving it 17 days before the murder was probative of defendant’s identity as the shooter. Denson,
500 Mich at 401-402. Defendant’s argument to the contrary focuses on a factual dispute about the
type of car fleeing the scene. Specifically, defendant identifies two 911 recordings played at trial,
which alternatively identified the car as a white Cadillac or a silver Ford. While defendant has
successfully identified a factual dispute, he has not identified a reason the other-acts evidence
should not have been admitted during trial. The admissibility of other-acts evidence does not rely
on the other act being probative of an undisputed fact established at trial; instead, it must merely
be probative of a fact at issue. In this case, the fact at issue was defendant’s identity as the shooter.
One way the shooter was identified was by fleeing the scene in a car, which two witnesses said
was a white Charger. Thus, the fact that defendant had a white Charger and was driving it 17 days
before the crime occurred was probative of his identity as the person who shot and killed Campbell.
Id.; MRE 404(b)(1). Although defendant could argue to the jury the 911 callers properly identified
the car, which would undermine the probative value of the other-acts evidence, such argument
does not establish the trial court erred, plainly or otherwise, in deciding to admit the evidence.
Denson, 500 Mich at 401-402; MRE 404(b)(1).
The third prong of the test regarding admissibility of other-acts evidence requires
application of MRE 403. Denson, 500 Mich at 398. On appeal, defendant contends the evidence
should have been excluded under MRE 403 because it was unfairly prejudicial considering it
wrongly encouraged the jury to connect him to the car seen fleeing the scene of the shooting. As
noted above, however, MRE 403 does not regulate evidence that is simply “prejudicial” because
“[r]elevant evidence is inherently prejudicial.” Mills, 450 Mich at 75 (citation omitted). “Unfair
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prejudice may exist where there is a danger that the evidence will be given undue or preemptive
weight by the jury or where it would be inequitable to allow use of the evidence.” Gipson, 287
Mich App at 263, quoting Blackston, 481 Mich at 462. Evidence of defendant driving and
claiming to own a white Charger was not unfairly prejudicial. The evidence was specifically
related to an issue in the case—whether defendant was the person who shot and killed Campbell.
Two witnesses said the shooter drove away from the scene of the murder in a white Charger. Thus,
defendant owning and operating a white Charger just days before the murder was not unfairly
prejudicial, but merely prejudicial because it was relevant to defendant’s guilt. Mills, 450 Mich
at 75; Gipson, 287 Mich App at 263. In light of defendant’s failure on appeal to identify any unfair
prejudice arising out of the other-acts evidence, he has not proven the evidence should have been
excluded under MRE 403. Gipson, 287 Mich App at 263.3
In sum, the other-acts evidence was logically and legally relevant to defendant’s identity
under MRE 404(b)(1), its probative value was not substantially outweighed by the danger of unfair
prejudice under MRE 403, and a possible limiting instruction is not relevant to the analysis.
Denson, 500 Mich at 398. As a result, the trial court did not err, plainly or otherwise, by allowing
the other-acts evidence to be admitted at trial. Id.; Carines, 460 Mich at 763.
Affirmed.
/s/ Anica Letica
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
3
The final prong of this analysis requires this Court to consider whether the trial court was
requested to and did provide a limiting instruction to the jury. Denson, 500 Mich at 398. Here,
neither party raises the issue of a limiting instruction. There is no record evidence supporting such
an instruction was requested or given, nor an argument the trial court somehow erred by failing to
do so without such a request. Consequently, this last factor is inapplicable in this case. Id.
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