People of Michigan v. Jeffrey Thomas Willis ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 2, 2020
Plaintiff-Appellee,
v No. 341913
Muskegon Circuit Court
JEFFREY THOMAS WILLIS, LC No. 16-003145-FC
Defendant-Appellant.
Before: METER, P.J., and O’BRIEN and TUKEL, JJ.
PER CURIAM.
A jury convicted defendant of first-degree murder, MCL 750.316;1 and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced defendant to life imprisonment for first-degree murder and a consecutive two years’
imprisonment for felony-firearm. Defendant appeals as of right. We affirm.
I. BASIC FACTS
Defendant’s convictions arise from the murder of 36-year-old Rebekah Bletsch, who was
shot to death while walking or jogging near her home on June 29, 2014. Bletsch was found on
the side of the road with her clothes askew—her shirt was “up a little bit” and her “bottoms were
down a little bit.” The prosecutor’s theory of the case was that defendant intended to abduct
Bletsch at gunpoint, possibly incapacitate her with insulin, transport her to an empty house at
3038 Bailey, and then rape and murder her. The prosecution theorized that defendant shot
Bletsch during the attempted abduction because she tried to get away, and that defendant also
touched Bletsch in some manner, at least enough to get her DNA on his glove.
1
The jury convicted defendant of first-degree murder on two theories: premeditation, MCL
750.316(1)(a), and felony-murder, MCL 750.316(1)(b). His judgment of sentence specifies that
his murder conviction is for one count of first-degree murder supported by two theories.
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During an 11-day trial, the prosecution called dozens of witnesses and submitted
hundreds of exhibits. Among other forensic evidence, the prosecutor offered evidence
establishing (1) that the murder weapon, a stolen .22-caliber Walther pistol with defendant’s
DNA on it and the serial number obscured, was found in a locked lockbox in defendant’s van,
(2) that a Reebok glove, with both Bletsch’s and defendant’s DNA on it, was found in a locked
toolbox in defendant’s van, and (3) that a purple dildo vibrator, with both Bletsch’s and
defendant’s DNA on it, was found in a locked toolbox in defendant’s van. Collectively, the
toolbox and lockbox comprised what the prosecutor characterized as a “rape kit,” containing
items such as handcuffs, rope, restraints, chains, sex toys, a gag, lubricating jelly, insulin,
syringes, a human anatomy diagram with injection points, gloves, Viagra, cameras, and bullets.
Fingerprints, DNA evidence, and defendant’s testimony at trial established defendant as the
owner of the lockbox and toolbox, and a note in defendant’s handwriting, found at 3038 Bailey,
set forth what the prosecutor characterized as a “rape kit checklist” for many of the items in the
toolbox as well as additional items.
At trial, the prosecutor introduced other-acts evidence relating to (1) the disappearance of
Jessica Heeringa on April 26, 2013, and (2) the attempted abduction and escape of MJN on
April 16, 2016. During analysis of defendant’s external computer hard drives, authorities found
a folder labeled “vics,” with subfolders specific to Bletsch and Heeringa; the folders were
labeled by Bletsch’s and Heeringa’s initials and the dates of the crimes against them. In the
folder labeled for Bletsch, defendant had photographs of Bletsch downloaded from Facebook,
and shortly after Bletsch’s murder, defendant saved items—such as phone records—in support of
a potential alibi for the time of Bletsch’s death.
In contrast to the prosecution, the defense theory of the case was that defendant’s cousin,
Kevin Bluhm, stalked Bletsch and then murdered her using a gun he borrowed from defendant.
According to the defense theory, after the murder, Bluhm returned the gun to defendant and also
loaned defendant Reebok gloves that Bluhm wore during the murder. The defense maintained
that Bletsch’s DNA from the gloves then transferred to the purple vibrator while both items were
in the toolbox. The jury convicted defendant as noted. Defendant now appeals as of right.
II. INTERFERENCE WITH ATTORNEY-CLIENT PRIVILEGE
On appeal, defendant first argues that the trial court erred by denying defendant’s motion
to dismiss on the basis of governmental interference with his Sixth Amendment right to counsel.
Defendant maintains that the government infringed on his right to counsel by violating the
attorney-client privilege when (1) authorities took and did not return defendant’s notes for
counsel taken from the pocket of his jail jumpsuit, (2) authorities made copies of a legal pad in
his jail cell, and (3) authorities looked in an envelope in defendant’s jail cell bearing the name of
the public defender’s office and the phrase “confidential attorney mail.” Defendant filed a
motion to dismiss on the basis of these events, and the trial court held a hearing at which
defendant and the officers involved testified. Following the hearing, the trial court made factual
findings and ultimately denied defendant’s motion to dismiss. We conclude that the trial court
did not abuse its discretion by denying defendant’s motion to dismiss.
A trial court’s decision on a motion to dismiss is reviewed for an abuse of discretion.
People v Patton, 325 Mich. App. 425, 431; 925 NW2d 901 (2018). An abuse of discretion
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“occurs when the court chooses an outcome that is outside the range of reasonable and principled
outcomes.” Id. “Generally, whether a defendant’s right to counsel was violated is a
constitutional issue that this Court reviews de novo.” People v Hieu Van Hoang, 328 Mich. App.
45, 54-55; ___ NW2d ___ (2019). Whether the attorney-client privilege applies is a legal
question reviewed de novo. Leibel v Gen Motors Corp, 250 Mich. App. 229, 236; 646 NW2d 179
(2002). See also People v Carrier, 309 Mich. App. 92, 104; 867 NW2d 463 (2015). What
constitutes a waiver of attorney-client privilege is also a question of law reviewed de novo.
Leibel, 250 Mich. App. at 240.
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Id. at 237 (quotation marks and citations omitted).
The attorney-client privilege attaches to communications made by a client
to his or her attorney acting as a legal adviser and made for the purpose of
obtaining legal advice on some right or obligation. The purpose of the privilege is
to allow a client to confide in his or her attorney secure in the knowledge that the
communication will not be disclosed. The privilege is personal to the client, who
alone can waive it. [People v Waclawski, 286 Mich. App. 634, 693-694; 780
NW2d 321 (2009) (citations omitted).]
“[S]tanding alone, the attorney-client privilege is merely a rule of evidence; it has not yet been
held a constitutional right.” Howell v Trammell, 728 F3d 1202, 1222 (CA 10, 2013) (quotation
marks and citation omitted). Nevertheless, courts have acknowledged that to meaningfully
implement the right to counsel, privacy of communication with counsel is essential. See
Weatherford v Bursey, 429 U.S. 545, 554 n 4; 97 S. Ct. 837; 51 L. Ed. 2d 30 (1977); United States v
Brugman, 655 F2d 540, 546 (CA 4, 1981). It follows that a violation of the attorney-client
privilege may implicate a defendant’s Sixth Amendment right to counsel “when the government
interferes with the relationship between a criminal defendant and his attorney.” Howell, 728 F3d
at 1222 (quotation marks and citation omitted; emphasis omitted).
To establish a constitutional violation of the Sixth Amendment right to counsel arising
from interference with the attorney-client privilege, “a criminal defendant must show two things:
first, that the government knowingly intruded into the attorney-client relationship; and second,
that the intrusion demonstrably prejudiced the defendant . . . or created a substantial threat of
prejudice.” United States v Singer, 785 F2d 228, 234 (CA 8, 1986). “Substantial prejudice
results from the introduction of evidence gained through the interference against the defendant at
trial, from the prosecution’s use of confidential information pertaining to defense plans and
strategy, and from other actions designed to give the prosecution an unfair advantage at trial.”
United States v Danielson, 325 F3d 1054, 1069 (CA 9, 2003), as amended (May 19, 2003)
(quotation marks and citation omitted).
The courts have enunciated several factors to determine whether there has
been an invasion of the attorney-client privilege in violation of the Sixth
Amendment right to effective assistance of counsel. . . . These include: 1)
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whether the [challenged action2] was purposely caused by the government in
order to garner confidential, privileged information, or whether the [challenged
action] was the result of other inadvertent occurrences; 2) whether the
government obtained, directly or indirectly, any evidence which was used at trial
as the result of the . . . intrusion; 3) whether any information gained . . . was used
in any other manner to the substantial detriment of the defendant; and 4) whether
the details about trial preparations were learned by the prosecutor. [United States
v Steele, 727 F2d 580, 585-586 (CA 6, 1984).]
Even if a defendant establishes a constitutional violation of the right to counsel arising
from interference with the attorney-client relationship, it does not follow that dismissal is the
appropriate remedy. Singer, 785 F2d at 234. Instead, when faced with a violation, the court
should “tailor a remedy to the injury suffered, to assure the defendant effective assistance of
counsel in a subsequent proceeding.” Id. See also United States v Morrison, 449 U.S. 361, 365-
366; 101 S. Ct. 665; 66 L. Ed. 2d 564 (1981) (recognizing that the remedy for a constitutional
violation, such as deprivation of counsel, is to “neutralize the taint by tailoring relief appropriate
in the circumstances to assure the defendant the effective assistance of counsel and a fair trial”).
Applying these principles, the trial court did not err by concluding that defendant had not
shown interference with his attorney-client relationship that amounted to a constitutional
violation of his right to counsel.
When addressing the notes in the pockets of defendant’s jumpsuit and the legal pad left
out in his cell, the trial court reasonably concluded that defendant could not establish that these
documents were subject to the attorney-client privilege because defendant failed to take
reasonable precautions to keep the papers confidential. Cf. People v Compeau, 244 Mich. App.
595, 597; 625 NW2d 120 (2001) (concluding that a defendant’s conversation with his attorney
that was held in a manner that could be overheard was not confidential and, therefore, not
privileged). For the notes in the jumpsuit, the trial court pointed out that defendant sent them
with his jumpsuit to the laundry, where they were found during a routine inspection of laundry
items. As for the legal pad in defendant’s cell, defendant did not waive his attorney-client
privilege simply by keeping the materials in his cell, but he did by treating the notes “in such a
careless manner as to negate [his] intent to keep them confidential.” DeFonte, 441 F3d at 94-95.
As detailed by the trial court, defendant kept the “pad on the shelf in open view” with “no
precautions,” despite “knowledge that his cell could be searched and similar materials may have
previously been examined.” Moreover, nothing on the legal pad indicated it was confidential
material intended for defendant’s attorney. Indeed, it also contained information unrelated to his
2
While cases involving governmental intrusion on the attorney-client relationship often involve
efforts to have an informant present during an attorney-client meeting, caselaw supports that the
government may also impermissibly interfere with the attorney-client relationship by obtaining a
defendant’s written communications. See, e.g., United States v DeFonte, 441 F3d 92, 95 (CA 2,
2006) (considering a defendant’s journal); Bishop v Rose, 701 F2d 1150, 1156-1157 (CA 6,
1983) (involving a 14-page handwritten document).
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case, including menus, commissary information, names and addresses, and Bible quotes. And,
as emphasized by the trial court, defendant left the legal pad out while intentionally
“segregate[ing] material in his cell that he wished to be confidential” by “placing [those other]
materials in an envelope marked ‘public defender’ and ‘confidential attorney mail’.” Overall,
the trial court’s factual findings demonstrate that defendant treated the legal pad, as well as the
notes in his jumpsuit pocket, in such a careless manner as to negate any intent to keep them
confidential. See id. Cf. Gomez v Vernon, 255 F3d 1118, 1133 (CA 9, 2001) (detailing
precautions taken by prisoners to retain attorney-client privilege and keep documents
confidential). In these circumstances, he cannot show that the government impermissibly
intruded on the attorney-client relationship because he cannot establish that the notes were
subject to the attorney-client privilege.3
On appeal, defendant characterizes any disclosure on his part as inadvertent, and he
correctly notes that the attorney-client privilege is not waived by inadvertent disclosure, but
instead requires a “true waiver” of the privilege. See Franzel v Kerr Mfg Co, 234 Mich. App.
600, 616; 600 NW2d 66 (1999). But that defendant’s disclosure of these materials was arguably
inadvertent does not aid defendant’s position because his claim is one for a constitutional
violation of the right to counsel, and he cites no authority for the proposition that the government
violates a defendant’s right to counsel when a defendant’s own inadvertence leads to disclosure
of attorney-client materials. Indeed, caselaw supports the opposite—a defendant cannot
maintain a claim for impermissible intrusion on the attorney-client relationship amounting to a
violation of the right to counsel when the alleged violation was the result of “other inadvertent
3
Even if the notes in defendant’s jumpsuit and on his legal pad were privileged, defendant
cannot establish a violation of his attorney-client privilege implicating the Sixth Amendment. As
noted, to maintain such a claim, “a criminal defendant must show two things: first, that the
government knowingly intruded into the attorney-client relationship; and second, that the
intrusion demonstrably prejudiced the defendant . . . or created a substantial threat of prejudice.”
Singer, 785 F2d at 234. Relevant to the first requirement, the trial court credited testimony from
deputies that defendant “never advised any corrections officer that [the notes in defendant’s
jumpsuit] were an attorney/client communication.” Regarding the September 2, 2016 search
involving defendant’s legal pad, the trial court found that defendant did not advise authorities he
had confidential materials in the cell and that nothing about the legal pad suggested that it
contained confidential materials. More generally, the trial court emphasized that “there is no
evidence that the task force purposely sought out confidential communications.” Given these
factual findings, defendant’s constitutional claim fails because he has not shown that the
government knowingly intruded on his attorney-client relationship. As for the second
requirement, the notes and legal pad in question were not used against defendant at trial, the
items were not given to the prosecutor, and, as found by the trial court, there is simply no
indication that the prosecutor gleaned any new information or information about the defense
strategy from the communications. See Steele, 727 F2d at 585-586; United States v Dobson, 626
Fed App’x 117, 125 (CA 6, 2015). See also Weatherford, 429 U.S. at 558 (“There being no
tainted evidence in this case, no communication of defense strategy to the prosecution, and no
purposeful intrusion . . . , there was no violation of the Sixth Amendment . . . .”).
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occurrences” and not the government’s purposeful conduct. See Steele, 727 F2d at 585-586. See
also Maine v Moulton, 474 U.S. 159, 176; 106 S. Ct. 477; 88 L. Ed. 2d 481 (1985) (“[T]he Sixth
Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating
statements from the accused after the right to counsel has attached.”).4
Defendant’s other set of notes viewed by authorities—the ones in defendant’s cell
contained within an envelope plainly labeling them confidential—presents a somewhat different
question. Although the envelope clearly conveyed the confidential nature of the materials, jail
officials looked inside the envelope on two occasions. Given defendant’s efforts to maintain the
confidentiality of the materials in the envelope by marking it “public defender” and “confidential
attorney mail,” the trial court correctly recognized that defendant preserved the confidentiality of
these papers and that the attorney-client privilege attached to these materials. Cf. Gomez, 255
F3d at 1133. Nevertheless, although officers looked inside this clearly marked envelope,
defendant has not shown a constitutional violation of his right to counsel.
First, although deputies deliberately looked inside the envelope, they did not do so to
interfere with defendant’s attorney-client relationship. Sergeant Todd Gilchrist testified that,
during the September search, he was looking for contraband; Sergeant Eric Rideout testified that,
during the October search, he looked in the envelope for names and information about deputies
and their families amid security concerns that defendant was trying to compile this type of
information. Generally, a jail or prison has “a penological interest in curtailing the prisoner’s
privacy rights,” id., including an interest in searching for contraband, even in items bearing an
attorney’s name, see Wolff v McDonnell, 418 U.S. 539, 577; 94 S. Ct. 2963; 41 L. Ed. 2d 935
(1974); Sallier v Brooks, 343 F3d 868, 874 (CA 6, 2003). The trial court, as a factual matter,
credited the jail officials’ reasons for the searches of the envelope. In view of these legitimate
justifications for opening the envelope, defendant cannot show that the government acted
purposefully in order to garner confidential information. See Steele, 727 F2d at 585-586; United
States v Moses, 337 Fed App’x 443, 449 (CA 6, 2009).
4
Even as an evidentiary matter, defendant’s “true waiver” argument ignores the “dual nature” of
the attorney-client privilege, which includes “both the security against publication and the right
to control the introduction into evidence of such information or knowledge communicated to or
possessed by the attorney.” Franzel, 234 Mich. App. at 615-616 (emphasis added). See also
Sterling v Keidan, 162 Mich. App. 88, 91-96; 412 NW2d 255 (1987). Although “true waiver”
standards apply to a determination whether the right to control the introduction of privileged
matter into evidence has been destroyed, inadvertent disclosure eliminates “any security against
publication.” Franzel, 234 Mich. App. at 616. Stated more simply, if a party inadvertently
discloses privileged information, he may nevertheless be able to assert the privilege to prevent
the introduction of the evidence at trial, but having lost the security against publication, he
cannot expect those to whom he unintentionally disclosed the information to un-see it, and he
cannot plausibly expect that his case will be dismissed as a remedy for his own inadvertent
disclosures. See generally id. at 615-616; Sterling, 162 Mich. App. at 95-96.
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Second, defendant cannot show any prejudice arising from the search of the envelope.
Neither Sergeant Gilchrist nor Sergeant Rideout was involved with the investigation of
defendant’s crimes, they did not share the information they saw in the envelope with the
investigators or the prosecutor, and they did not even recall the information that they saw in the
envelope. In other words, the government, and in particular the prosecutor, did not obtain any
evidence, or any information about the defense strategy, for use at trial against defendant or to
use in any way to defendant’s detriment. See Steele, 727 F2d at 585-586.
Third, and finally, recognizing that the jail officials viewed information in a confidential
envelope, the trial court took action to remedy any infraction and prevent any potential prejudice
to defendant. The trial court ordered (1) that the materials in the envelope would not be admitted
at trial, (2) that the jail officials who viewed the materials were enjoined from relaying the
information to anyone, and (3) that the prosecutor was enjoined from receiving any such
information. This remedy neutralized any potential taint caused by opening the envelope and
assured that defendant would receive a fair trial with the effective assistance of counsel. See
Singer, 785 F2d at 234. See also Morrison, 449 U.S. at 365-366. On these facts, defendant was
not entitled to dismissal of the charges.
In sum, the trial court did not abuse its discretion by denying defendant’s motion to
dismiss because he failed to establish a governmental invasion of his attorney-client privilege
amounting to a violation of his constitutional right to counsel.
III. MOTION TO SUPPRESS
Defendant argues that the trial court erred by denying his motion to suppress evidence
found on his electronic devices because, according to defendant, there was not probable cause to
search his electronic devices and the warrant for his electronic devices was overly broad. The
trial court denied defendant’s motion to suppress on the basis of the good-faith exception to the
exclusionary rule, but defendant contends that the exception is inapplicable. We disagree.
We review de novo a trial court’s ultimate decision on a motion to suppress. People v
Mahdi, 317 Mich. App. 446, 457; 894 NW2d 732 (2016). The trial court’s factual findings on the
motion are reviewed for clear error. Id. A finding of fact is clearly erroneous if, after a review
of the entire record, we are left with a definite and firm conviction that a mistake has been made.
Id. Whether the Fourth Amendment was violated and whether the exclusionary rule applies are
questions of law reviewed de novo. Id.
The United States and Michigan Constitutions protect against unreasonable searches and
seizures. US Const Am IV; Const 1963, art I, § 11. “A search or seizure is considered
unreasonable when it is conducted pursuant to an invalid warrant or without a warrant where the
police officer’s conduct does not fall within one of the specific exceptions to the warrant
requirement.” People v Hellstrom, 264 Mich. App. 187, 192; 690 NW2d 293 (2004).
“Ordinarily, if a warrant is determined to be invalid because it lacked a probable-cause basis or
was technically deficient in some other manner, any evidence seized pursuant to that warrant, or
seized subsequently as a result of the initial illegal search, is inadmissible as substantive
evidence in related criminal proceedings.” Id. at 193.
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However, there are exceptions to the exclusionary rule, including the good-faith
exception adopted by the Michigan Supreme Court in People v Goldston, 470 Mich. 523, 526;
682 NW2d 479 (2004). In adopting the good-faith exception, the Court explained that “[t]he
purpose of the exclusionary rule is to deter police misconduct,” id., and “the goal of the
exclusionary rule would not be furthered where police officers act in objectively reasonable
good-faith reliance on a search warrant,” id. at 538. Under the good-faith exception, searches
“pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant
issued by a magistrate normally suffices to establish that a law enforcement officer has acted in
good faith in conducting the search.” Hellstrom, 264 Mich. App. at 197 (quotation marks and
citation omitted). However, there are times when an officer will have no reasonable grounds for
believing that the warrant was properly issued. See id. As summarized by this Court:
Reliance on a warrant is reasonable even if the warrant is later invalidated
for lack of probable cause, except under three circumstances: (1) if the issuing
magistrate or judge is misled by information in the affidavit that the affiant either
knew was false or would have known was false except for his or her reckless
disregard of the truth; (2) if the issuing judge or magistrate wholly abandons his
or her judicial role; or (3) if an officer relies on a warrant based on a “bare bones”
affidavit so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. [People v Czuprynski, 325 Mich. App. 449, 472;
926 NW2d 282 (2018) (citation omitted).]
The good-faith exception may also not apply when, “depending on the circumstances of the
particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to
be searched or the things to be seized—that the executing officers cannot reasonably presume it
to be valid.” United States v Leon, 468 U.S. 897, 923; 104 S. Ct. 3405; 82 L. Ed. 2d 677 (1984).
When ruling on a motion to suppress, a court is not required to first evaluate the validity
of a warrant, but may instead choose to “ ‘turn[] immediately to a consideration of the officers’
good faith.’ ” Hellstrom, 264 Mich. App. at 199, quoting Leon, 468 U.S. at 925. “[T]he good-faith
exception, turning as it does on objective reasonableness, should not be difficult to apply in
practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be
able to establish objective good faith without a substantial expenditure of judicial time.”
Hellstrom, 264 Mich. App. at 197-198 (quotation marks and citation omitted).
When the trial court ruled on defendant’s motion to suppress, it did not address the
validity of the warrant, and instead turned immediately to the question of good faith. It
determined that the officers conducting the search of defendant’s home and electronic devices
acted in good-faith reliance on the warrant. For the reasons explained below, the trial court’s
reasoning was sound. Defendant has not shown clear error in the trial court’s factual findings,
and those findings support the trial court’s conclusion that the exclusionary rule does not apply.
Undisputedly, the police had a warrant for the search, and this is not a case where officers
lacked reasonable grounds for believing the warrant was valid. See id. at 199. There is no
indication that the affidavits contained false information, and there is no suggestion that the
judge signing the warrant abandoned his judicial role. See Czuprynski, 325 Mich. App. at 472.
Moreover, the warrant was not facially deficient; it specified the place to be searched and
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provided a detailed list of the items to be seized, including electronic devices. See Leon, 468 U.S.
at 923. Further, the affidavits were detailed, and certainly cannot be described as “bare bones”
affidavits “so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable.” Czuprynski, 325 Mich. App. at 472.
The warrants were issued after defendant attempted to kidnap a minor, MJN, and
defendant’s main challenge to the warrant seems to be his belief that MJN’s kidnapping had no
connection to the electronic devices. But in his affidavit in support of the warrant, Detective
Matt Schultz specified, on the basis of his knowledge and experience, that individuals engaging
in these types of behaviors (kidnapping) tend to follow media reports about their crimes, which
the trial court aptly recognized are likely to be stored electronically. Cf. Hellstrom, 264 Mich
App at 199 & n 7 (applying good-faith exception when affiant had personal knowledge that
“pedophiles generally possess pornographic images” and noting that “[a]n affiant’s
representations based on his experience can be considered in determining whether probable
cause exists”). Furthermore, the affidavit dated May 12, 2016, detailed information suggesting
that defendant was engaged in stalking-type behavior, including videotaping and following
women. Considered in conjunction with defendant’s abduction of MJN, information about
defendant’s videotaping of women provided further reason to believe that evidence of a crime
would be found on defendant’s electronic devices. Cf. id. at 199-200. On these facts, “[t]he
supporting affidavits were not so lacking in indicia of probable cause that the officers could not
objectively believe that the warrant was supported by probable cause.” Id. at 199 (quotation
marks and citation omitted). In these circumstances, the trial court properly refused to apply the
extreme sanction of exclusion.
IV. OTHER-ACTS EVIDENCE
In his appellate brief as well as his Standard 4 brief, defendant argues that the trial court
erred by admitting other-acts evidence involving Heeringa’s disappearance, MJN’s abduction,
the theft of the Walther pistol, and the videotaping of a woman in 2007. According to defendant,
the evidence was not sufficiently similar to warrant admission under MRE 404(b) and it should
have been excluded as unfairly prejudicial under MRE 403. We disagree.
We review a trial court’s decision to admit evidence for an abuse of discretion. People v
Benton, 294 Mich. App. 191, 195; 817 NW2d 599 (2011). “[A] trial court’s decision on a close
evidentiary question ordinarily cannot be an abuse of discretion.” People v Hine, 467 Mich. 242,
250; 650 NW2d 659 (2002). Preliminary questions of law regarding the admissibility of
evidence are reviewed de novo. People v King, 297 Mich. App. 465, 472; 824 NW2d 258 (2012).
Defendant challenges the admission of other-acts evidence under MRE 404(b)(1), which
states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
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crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
MRE 404(b) governs evidence of other acts that risks this character-to-conduct inference; the
rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to
properly admit evidence that may otherwise give rise to an inference about the defendant’s
character. People v Jackson, 498 Mich. 246, 259; 869 NW2d 253 (2015). The Michigan
Supreme Court summarized the framework for admitting evidence under MRE 404(b) as
follows:
First, the prosecutor must offer the other acts evidence under something other
than a character to conduct or propensity theory. MRE 404(b). Second, the
evidence must be relevant under MRE 402, as enforced through MRE 104(b), to
an issue of fact of consequence at trial. Third, under MRE 403, a determination
must be made whether the danger of undue prejudice [substantially] outweighs
the probative value of the evidence in view of the availability of other means of
proof and other facts appropriate for making decision of this kind under Rule
403. Finally, the trial court, upon request, may provide a limiting instruction
under MRE 105. [People v Sabin (After Remand), 463 Mich. 43, 55-56; 614
NW2d 888 (2000) (quotation marks and some citation omitted) (alteration in
original).]
Under the MRE 404(b) framework, the prosecutor bears the “initial burden to show that
the proffered evidence is relevant to a proper purpose under the nonexclusive list in MRE
404(b)(1) or is otherwise probative of a fact other than the defendant’s character or criminal
propensity.” People v Mardlin, 487 Mich. 609, 615-616; 790 NW2d 607 (2010). Relevance
requires consideration of both materiality and probative value. People v Crawford, 458 Mich.
376, 388-390; 582 NW2d 785 (1998). “[E]vidence of similar misconduct is logically relevant to
show that the charged act occurred where the uncharged misconduct and the charged offense are
sufficiently similar to support an inference that they are manifestations of a common plan,
scheme, or system.” Hine, 467 Mich. at 251. “[D]istinctive and unusual features are not required
to establish the existence of a common design or plan.” Id. at 252-253. Rather, “[t]he evidence
of uncharged acts needs only to support the inference that the defendant employed the common
plan in committing the charged offense.” Id. at 253.
The trial court admitted evidence relating to Heeringa’s disappearance and MJN’s
abduction as relevant to establishing that, when defendant killed Bletsch, he was carrying out a
common scheme, plan, or system. The trial court characterized this common scheme as
involving (1) young, female victims, (2) who were targeted while they were isolated and (3)
threatened or assaulted with a gun. Indeed, the trial court noted that there was evidence to
support the conclusion that defendant used the same gun in each case.5 The trial court also
5
Bletsch was killed with the Walther pistol found in defendant’s van; MJN testified that
defendant retrieved a gun from under his seat, which is where he stored the Walther pistol; and
the battery cover for a Walther laser sight was recovered at the gas station where Heeringa
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emphasized that the offenses took place within a three-year period within Muskegon County.
Additionally, the evidence suggests that defendant used a vehicle—namely, his van—to carry out
his scheme; the evidence showed that Heeringa was taken away in a van, MJN escaped
abduction by jumping from a van, and Bletsch was found shot on the side of the road in an
isolated location, supporting the inference that defendant drove to that location. Further
supporting that inference was the officers’ finding of defendant’s “rape kit,” which held items
with Bletsch’s DNA on them, in defendant’s van. The evidence also supported the conclusion
that defendant’s plan was to abduct the women: defendant drove MJN in a direction she did not
wish to go; Heeringa was taken from her place of employment with her belongings left behind;
and Bletsch was found on the side of the road with her belongings neatly placed on the roadway
as though she had been told to leave them behind. Also, the “vics” folders related to Bletsch and
Heeringa, created after their deaths, suggested that part of defendant’s plan included compiling
information on those victims he succeeded in killing.
Considering the similarities, the trial court did not err by determining that the other-acts
evidence was relevant to whether Bletsch’s death occurred during a manifestation of defendant’s
common plan. This is true even if defendant’s plan to abduct isolated women at gunpoint and
take them away in his van is not particularly distinctive or unusual and there were some
dissimilarities between the cases—“a high degree of similarity is not required, nor are distinctive
or unusual features required to be present in both the charged and the uncharged acts.” People v
Steele, 283 Mich. App. 472, 480; 769 NW2d 256 (2009). Given the similarities between the
cases, the trial court did not abuse its discretion by concluding that the evidence relating to
Heeringa and MJN was logically relevant to establish a common plan, scheme, or system.
Contrary to defendant’s arguments, the trial court also did not abuse its discretion by
declining to exclude the evidence under MRE 403. “Rule 403 does not prohibit prejudicial
evidence; only evidence that is unfairly so. Evidence is unfairly prejudicial when there exists a
danger that marginally probative evidence will be given undue or preemptive weight by the
jury.” Crawford, 458 Mich. at 398. The other-acts evidence establishing that defendant was
engaged in a common scheme to abduct Bletsch was highly probative on the significant
questions whether defendant murdered Bletsch, whether he acted with premeditation and
deliberation, and, with regard to the felony-murder charge, whether he killed her in the course of
an attempted kidnapping. Indeed, the trial court emphasized the need for the other-acts evidence
to establish defendant’s plan given that there were no eyewitnesses to Bletsch’s murder.
Although recognizing that there was a potential for prejudice, the trial court found that this
potential for prejudice did not substantially outweigh the probative value of the evidence given
the similarity of the three crimes, particularly when all the events occurred in close temporal
proximity in the same county. The trial court also emphasized the reliability of the other-acts
evidence, noting that the evidence consisted, in large part, of reliable physical evidence. See
People v Watkins, 491 Mich. 450, 487; 818 NW2d 296 (2012) (identifying the need for the other-
acts evidence, similarity between the acts, temporal proximity, and reliability of the other-acts
disappeared, and the gun that defendant stole from his coworker (as will be described in more
detail later in this opinion) originally had a laser sight attached.
-11-
evidence as considerations relevant to MRE 403 analysis). The trial court is in the best position
to make MRE 403 determinations on the basis of a contemporaneous assessment of the
presentation, credibility, and effect of testimony. Mardlin, 487 Mich. at 627. On the facts of this
case, the trial court did not abuse its discretion by determining that the danger of unfair prejudice
did not substantially outweigh the probative value of the evidence. Further, the trial court
minimized the potential for prejudice by instructing the jury on the use of other-acts evidence,
prohibiting the jury from using the evidence to decide that defendant was a “bad person” or
“likely to commit crimes,” and informing the jurors that they could not convict defendant
because the jurors believed he was “guilty of other bad conduct.” See People v Orr, 275 Mich
App 587, 593; 739 NW2d 385 (2007). Overall, the trial court did not abuse its discretion by
admitting other-acts evidence relating to Heeringa’s disappearance and MJN’s abduction.6
On appeal, defendant also challenges the admission of evidence that defendant stole the
Walther pistol and some underwear from a coworker’s home. In support of admitting this
evidence, the prosecutor argued—and the trial court accepted—that the thefts completed the
story of how the crime was accomplished because they explained how defendant obtained the
gun. The prosecutor also contended, and the trial court agreed, that this evidence was probative
of defendant’s identity as the killer, and tended to establish that he knowingly possessed the
weapon for purposes of the felony-firearm charge. Defendant asserts that the trial court’s
decision to admit this evidence was an abuse of discretion because, under Jackson, 498 Mich. at
265-276, other-acts evidence may not be admitted simply to “complete the story.”7 Defendant’s
argument is without merit.
Relevant to defendant’s argument, in Jackson, 498 Mich. at 265-276, the Supreme Court
made clear that there is “no res gestae exception” under MRE 404(b) that would allow admission
of evidence to “complete the story” without first subjecting the evidence to the MRE 404(b)
analysis. The Jackson Court did not categorically preclude the admission of other-acts evidence
to “complete the story;” it instead recognized that such “complete the story” evidence may be
relevant and admissible so long as it satisfies MRE 404(b). See id. at 276 n 11.
The trial court did not apply a res gestae exception when admitting evidence about the
theft of the gun and underwear to complete the story of the crimes. Instead, the trial court
6
In his Standard 4 brief, defendant also argues that the prosecutor should not have been allowed
to present this other-acts evidence because the other acts consisted of unproven conduct for
which defendant had not yet been convicted. This argument is without merit. Admission of
other-acts evidence under MRE 404(b) does not require a conviction relating to the other-acts
conduct. See People v Kelly, 317 Mich. App. 637, 646 n 3; 895 NW2d 230 (2016).
7
Defendant also contends that the thefts were not admissible because they are not part of a
common plan or scheme. However, the trial court did not admit the evidence on this basis.
MRE 404(b) sets forth a nonexhaustive list of proper purposes, and although there must be “at
least one proper noncharacter-based inference linking the prior act to the ultimate inference,”
Crawford, 458 Mich. at 390 n 8, there is no requirement that the evidence establish a common
plan or scheme.
-12-
properly subjected the evidence to analysis under MRE 404(b). In concluding that the evidence
was admissible under MRE 404(b), the trial court emphasized that defendant’s possession of the
gun was directly probative of his identity as the killer and his knowing possession of the gun.
Cf. People v Hall, 433 Mich. 573, 580-581; 447 NW2d 580 (1989) (“Evidence of a defendant’s
possession of a weapon of the kind used in the offense with which he is charged is routinely
determined by courts to be direct, relevant evidence of his commission of that offense.”). The
trial court also noted that defendant’s theft of the gun completed the story of how he
accomplished the crime. Indeed, that defendant stole the weapon, failed to register it, and
obliterated its serial number were all relevant to assess defendant’s premeditated plan to avoid
detection. See generally People v McGhee, 268 Mich. App. 600, 613; 709 NW2d 595 (2005)
(concluding that other-acts evidence relating to attempts to avoid capture was admissible);
People v Parker, 76 Mich. App. 432, 450; 257 NW2d 109 (1977) (“Determination of the source of
a weapon in a murder prosecution is relevant to the case . . . .”) (quotation marks and citation
omitted). Regarding the theft of the coworker’s underwear, the trial court reasoned that the
evidence was offered for the noncharacter purpose of showing how defendant obtained the
murder weapon—the coworker kept her laundry near the gun, and the underwear was found in
the shed with defendant’s and the coworker’s DNA on it. The trial court did not abuse its
discretion in determining that the thefts were relevant and offered for a proper purpose.
The trial court also addressed the theft evidence under MRE 403, concluding that the
prejudicial effect of the evidence did not outweigh its probative value. The evidence was highly
probative to establishing defendant’s possession of the murder weapon before Bletsch’s death
and to establishing his identity as the killer. There is nothing to suggest that the highly probative
value of this evidence was substantially outweighed by any danger of unfair prejudice—that is,
nothing suggests that this evidence would be given undue or preemptive weight by the jury. See
Crawford, 458 Mich. at 398. Thus, the trial court did not abuse its discretion by declining to
exclude the evidence under MRE 403. And, overall, the trial court did not abuse its discretion by
admitting the evidence of thefts of the gun and underwear under MRE 404(b).
Finally, defendant challenges the admission of evidence that he filmed a woman as she
walked through a Sam’s Club parking lot in 2007. The trial court excluded this evidence, and
the woman in question did not testify at trial. Given that the evidence to which defendant objects
was not admitted at trial, defendant is not entitled to any relief.8 See People v Miller (After
Remand), 211 Mich. App. 30, 42-43; 535 NW2d 518 (1995).
8
Although the trial court excluded evidence about the 2007 incident, the trial court did more
generally allow introduction of testimony relating to videos recovered on defendant’s computer.
Defendant does not address the videos on appeal, and it is not clear whether defendant’s
collection of homemade, voyeuristic videos included images of the woman filmed in 2007. To
the extent admission of the videos implicates MRE 404(b), because defendant does not address
the videos on appeal, we consider the issue abandoned and need not address it further. See
People v McGraw, 484 Mich. 120, 131 n 36; 771 NW2d 655 (2009) (“Failure to brief an issue on
appeal constitutes abandonment.”).
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V. INEFFECTIVE ASSISTANCE
Next, defendant argues that defense counsel provided ineffective assistance by failing to
call experts in ballistics and DNA at trial. We disagree.
“To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the defendant’s trial would have been different.” People v
Solloway, 316 Mich. App. 174, 188; 891 NW2d 255 (2016). “Because the defendant bears the
burden of demonstrating both deficient performance and prejudice, the defendant necessarily
bears the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich.
590, 600; 623 NW2d 884 (2001). “An attorney’s decision whether to retain witnesses, including
expert witnesses, is a matter of trial strategy.” People v Payne, 285 Mich. App. 181, 190; 774
NW2d 714 (2009). “[T]he failure to call a witness can constitute ineffective assistance of
counsel only when it deprives the defendant of a substantial defense.” Id. (quotation marks and
citations omitted).
Defendant contends that defense counsel at trial should have retained experts in ballistics
and DNA evidence. Defense counsel did seek—and receive—approval for funds to hire a
ballistics expert at public expense, and defendant also requested detailed discovery regarding the
DNA evidence in the case. However, defense counsel did not call a ballistics or DNA expert at
trial. Although defendant now contends that counsel’s performance was deficient, he has not
established the factual predicate of his claim. See Carbin, 463 Mich. at 600. That is, there is no
evidence that a ballistics or DNA expert would have aided the defense. See People v Ackerman,
257 Mich. App. 434, 455; 669 NW2d 818 (2003). At most, in support of a motion to remand, and
as an attachment to his brief on appeal, defendant offers an affidavit written by defendant,
asserting that a ballistics expert and DNA expert could have aided his position. This mere
speculation by defendant fails to establish that retention of an expert would have altered the
outcome of the proceedings.9 See Payne, 285 Mich. App. at 190; Ackerman, 257 Mich. App. at
455. Accordingly, defendant’s ineffective assistance claim must fail.
VI. PROSECUTORIAL MISCONDUCT
In his Standard 4 brief, defendant argues that the prosecutor withheld exculpatory
evidence and allowed a ballistics expert to commit perjury. Defendant raises these issues for the
first time on appeal, so they are reviewed for plain error. See People v Green, 322 Mich. App.
676, 681; 913 NW2d 385 (2018). Defendant has not shown plain error.
9
We previously denied defendant’s motion to remand. People v Willis, unpublished order of the
Court of Appeals, entered November 2, 2018 (Docket No. 341913). And we again conclude that
the affidavit written by defendant does not constitute a sufficient offer of proof to warrant
remand for an evidentiary hearing. See MCR 7.211(C)(1)(a)(ii).
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Under Brady, 10 “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” People v Chenault, 495 Mich. 142,
149; 845 NW2d 731 (2014) (quotation marks and citation omitted). To establish a Brady
violation, a defendant must show that “(1) the prosecution has suppressed evidence; (2) that is
favorable to the accused; and (3) that is material.” Id. at 150. “To establish materiality, a
defendant must show that there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different.” Id. (quotation marks and
citation omitted).
Defendant contends that the prosecutor withheld laboratory reports and chain of custody
information relating to the ballistics evidence. According to defendant, the withheld reports
were exculpatory insofar as they would have revealed mistakes, undermined the chain of
custody, led to the discovery of rebuttal witnesses, and exposed the perjury of the state’s
ballistics expert. Defendant also argues that flaws in the chain of custody—and changes in
packaging, acronyms, and labels—could have been used to impeach and cross-examine
witnesses.
Defendant’s claims are without merit. First of all, defendant’s argument, and the factual
basis for that argument, are somewhat difficult to decipher. His argument is not well-briefed, his
citations to the lower court record are scarce,11 it is often unclear what document or documents
he is discussing, and at least some of the materials he mentions do not appear to be part of the
lower court record (such as a FOIA request defendant asserts he made after trial).12 This Court
will not search the record for factual support for a party’s argument, and by failing to identify
support in the record for his contentions, defendant has effectively abandoned his claim. See
McRoberts v Ferguson, 322 Mich. App. 125, 137; 910 NW2d 721 (2017).
More substantively, defendant’s argument appears to center on ballistics reports prepared
by Lieutenant Jeff Crump and the chain of custody of the ballistics evidence. Several ballistics
reports were admitted at trial, and defendant now claims that these reports and the related chain-
of-custody information were withheld from him. However, there is simply nothing in the record
to support defendant’s assertions that he was not provided with the materials in question or to
show that any of the materials were favorable to the defense. See People v Elston, 462 Mich.
751, 761-762; 614 NW2d 595 (2000). Accordingly, defendant has not shown that the prosecutor
suppressed material evidence favorable to the accused, and his Brady claim is without merit. See
id.; Chenault, 495 Mich. at 149-150.
10
Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
11
Indeed, many of his factual assertions are made without any citations in violation of MCR
7.212(C)(7) (“Facts stated must be supported by specific page references to the transcript, the
pleadings, or other document or paper filed with the trial court.”).
12
Because these materials are not in the lower court record, they are not part of our review. See
People v Nix, 301 Mich. App. 195, 203; 836 NW2d 224 (2013).
-15-
At most, the record suggests that the prosecutor may have delayed in providing defense
counsel with one report or, more accurately, an updated version of a report (identified at trial as
People’s Exhibit 239). At trial, Lieutenant Crump testified that he had “recently” updated this
report to correct an error on the original report. According to Lieutenant Crump, the original
report mistakenly identified the police agency involved with the case as “MUP” (the Muskegon
Police Department) when the agency involved was actually “MCSD” (the Muskegon County
Sheriff’s Department). Before the updated report was admitted as evidence at trial, the
prosecutor provided a copy to defense counsel, defense counsel was given a chance to review the
document, and defense counsel indicated that he had no objection to the admission of the report.
On this record, even if the prosecutor delayed in providing the updated report, and even if the
minor correction to the report could somehow be used for impeachment, defendant’s Brady
claim is without merit because the updated report was admitted at trial and the fact of the
acronym correction was presented to the jury. See United States v Fields, 763 F3d 443, 458 (CA
6, 2014) (“Where the [prosecutor] ultimately hands over the Brady material that could be used to
impeach a witness, however, there is no violation so long as the defendant is given [the]
impeachment material, even exculpatory impeachment material, in time for use at trial.”)
(quotation marks and citation omitted; second alteration in original).
To the extent defendant claims that the prosecutor obtained a conviction by knowingly
allowing a witness to commit perjury, this argument is without merit. Defendant appears to
assert that Lieutenant Crump lied by stating that he updated the report to correct the submitting
agency when, in actuality, his original report was correct and there was some nefarious reason
for the changes. But there is simply no evidence that Lieutenant Crump lied about the reason for
the correction or anything else in his testimony. At most, any inconsistency between Lieutenant
Crump’s reports was a matter of credibility and a proper subject for impeachment; it does not
establish that the prosecutor knowingly presented perjured testimony. See People v Parker, 230
Mich. App. 677, 690; 584 NW2d 753 (1998).
VII. MOTION TO CHANGE VENUE
Defendant also argues on appeal that the trial court erred by denying his motion to
change venue given the negative media coverage before trial. The circumstances in this case are
very similar to People v Clark, 243 Mich. App. 424, 425-426; 622 NW2d 344 (2000), wherein
this Court explained:
Defendant first argues that the trial court erred in denying his motion to
change venue, which was brought on the basis of prejudicial pretrial publicity.
However, we conclude that defendant has waived review of this issue. Defense
counsel moved for a change of venue before trial. The trial court denied the
motion without prejudice, stating that it was willing to reconsider the motion at
any time during the jury selection process. A thorough jury selection process
ensued, which included lengthy juror questionnaires, the participation of the
attorneys in voir dire, and sequestered questioning of each potential juror.
Defense counsel never renewed the motion for a change of venue, but, rather,
expressed satisfaction with the jury after the jury selection process was
completed. Defense counsel’s failure to renew the motion and his expression of
satisfaction with the jury waived the change of venue issue.
-16-
Like the defendant in Clark, defendant waived review of his motion to change venue.
Before trial, defendant filed a motion to change venue or for modified voir dire. It is of
particular note that at a pretrial hearing on the motion, defense counsel stated that defendant was
not asking the trial court to change venue “at this juncture.” Instead, defense counsel agreed that
the appropriate course of action would be to see if “we can panel, ah, a good panel.” To enable
selection of a fair panel, defense counsel requested modifications to jury voir dire, the prosecutor
agreed to modified procedures, and the trial court granted defense counsel’s requests. The
specific procedures included use of a larger than normal jury pool, special jury questionnaires
regarding publicity, leeway for attorneys in questioning witnesses, and individual questioning of
prospective jurors while the rest of the jury venire waited in the jury assembly room.
Questioning by the attorneys during voir dire was thorough and extensive, spanning more than
two days. At no time did defense counsel renew the motion to change venue. To the contrary, at
the end of voir dire, defense counsel agreed that “we have a jury.” By effectively withdrawing
his pretrial request to change venue to instead see if a “good panel” could be found, agreeing to
modified voir dire procedures, failing to renew his motion to change venue, and then expressing
satisfaction with the jury selected after thorough voir dire procedures, defendant has waived
review of his motion to change venue. See id.; see also People v Adams, 245 Mich. App. 226,
240; 627 NW2d 623 (2001).
VIII. MOTION TO DISQUALIFY THE PROSECUTOR’S OFFICE
Next, defendant argues that the Muskegon County Prosecutor’s Office should have been
disqualified after his original attorney, Brian Hosticka, joined the prosecutor’s office during the
pendency of defendant’s case. The trial court was informed of the matter, and it held a hearing
to address the potential conflict of interest. Following the hearing, the trial court concluded that
there was no need to disqualify the entire prosecutor’s office because Hosticka would be
properly screened out of any involvement in the matter. The trial court did not err.
“The trial court’s findings of fact in regard to a motion for disqualification of counsel are
reviewed for clear error.” People v Tesen, 276 Mich. App. 134, 141; 739 NW2d 689 (2007).
“However, this Court reviews de novo the trial court’s application of the relevant law to the
facts.” Id. “Further, the application of ethical norms to a decision whether to disqualify counsel
is also reviewed de novo.” Id.
A presumption of prejudice exists when a defendant’s former defense counsel
joins the prosecutor’s office that is pursuing the case against the defendant.
MRPC 1.9(b), 1.10(b). Such a presumption may be overcome, however, if the
prosecutor shows that the attorney who has a conflict of interest was properly
screened out from any participation in the matter. [People v Davenport, 483 Mich.
906, 906 (2009) (Davenport II).]
If a defense attorney moves to the prosecutor’s office, the trial court should be “promptly
informed,” and the trial court should then “inquire into the matter and order an appropriate
safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the
entire prosecutor’s office, if necessary.” People v Davenport, 280 Mich. App. 464, 470; 760
NW2d 743 (2008) (Davenport I). Relevant considerations include “the extent to which
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knowledge has been shared by the disqualified lawyer and the disqualified lawyer’s role within
the prosecutor’s office.” In re Osborne, 459 Mich. 360, 369-370; 589 NW2d 763 (1999).
Hosticka accepted a position at the prosecutor’s office while defendant’s case was
ongoing. Although there may be a presumption that Hosticka’s move to the prosecutor’s office
was prejudicial, see Davenport II, 483 Mich. at 906, the prosecutor overcame this presumption
with information about Hosticka’s role in the office and assurances that defendant’s case would
not be shared, see In re Osborne, 459 Mich. at 369-370. At the time of the hearing, Hosticka had
not yet begun in the prosecutor’s office, and when he did start, his job was in the family division.
The prosecutor’s office also assured the court that there would be no communication about the
case between Hosticka and the prosecution staff handling the case. As a factual matter, the trial
court credited the prosecutor’s assurances about these screening measures. Given the efforts to
screen out Hosticka from participation in defendant’s case, disqualification of the prosecutor’s
office was not warranted, so defendant is not entitled to relief on appeal.
IX. MEDIA AT TRIAL
Next, defendant argues that the trial court erred by failing to exclude the media from trial.
According to defendant, media coverage created a risk that the jury would be exposed to
“unfounded evidence” via news coverage and that the jury would discuss the case before the
close of proofs. Defendant’s arguments are without merit.
The public, including the press, has a First Amendment right to access to trial
proceedings. People v Vaughn, 491 Mich. 642, 660 & n 65; 821 NW2d 288 (2012). Defendant
did not have the right to unilaterally demand a private trial, see id. at 659-660; and he has failed
to make a showing that exclusion of the media was essential “to preserve higher values,” In re
Closure of Jury Voir Dire, 204 Mich. App. 592, 595; 516 NW2d 514 (1994) (quotation marks and
citation omitted).13 Rather than take the drastic step of excluding the media, the trial court
instructed the jury to refrain from watching or reading anything about the case during trial.
Jurors are presumed to follow their instructions, People v Abraham, 256 Mich. App. 265, 279; 662
13
Defendant points to happenings at trial as evidence that the media’s presence prejudiced him.
First, defendant notes that, during trial, the trial court ordered the removal of cameras from the
courtroom. However, this had nothing to do with defendant, and it is not an indication that his
interests were prejudiced by the presence of media. Instead, after receiving reports that jurors
had been filmed or photographed, the trial court exercised its discretion to restrict the presence of
cameras in the courtroom to protect the jury and MJN. See Administrative Order No. 1989-1, as
amended 493 Mich. cxviii (2013). That the trial court exercised this discretion for the protection
of the jurors and MJN does not demonstrate that defendant was entitled to exclusion of the
media. Second, defendant contends that the trial court had to “reprimand the jury,” and
defendant asserts that one of the jurors used “social media platforms while acting as a juror.”
Defendant does not provide a citation to the record to support these factual assertions, nor does
he explain how these concerns relate to the presence of the media at trial. By failing to
adequately brief this issue, defendant has abandoned it. See McGraw, 484 Mich. at 131 n 36.
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NW2d 836 (2003), and this instruction was a reasonable alternative to preventing media access
to the trial, cf. People v Thomas, 126 Mich. App. 611, 622; 337 NW2d 598 (1983). Defendant is
not entitled to relief on this basis.
In the context of his media argument, defendant also makes reference to “bias,” and he
appears to assert that the trial court’s decision to allow the media demonstrated bias against him.
This cursory argument is without merit because, as discussed, defendant had no right to a private
trial, and the trial court could not simply have excluded the media for no reason. See In re
Closure of Jury Voir Dire, 204 Mich. App. at 595. Failing to take such unwarranted action is not
evidence of bias.
X. STATEMENT AGAINST PENAL INTEREST
Finally, defendant argues that the trial court erred by excluding portions of a transcript of
a police interview with defendant’s cousin, Bluhm. Defendant argues that exclusion of the
transcript violated due process and denied him his constitutional right to confront his accusers.
In the trial court, defendant attempted to call Bluhm as a witness, but Bluhm invoked his
Fifth Amendment privilege against self-incrimination and did not testify. Given Bluhm’s
unavailability, defendant sought to introduce portions of Bluhm’s interview with police under
MRE 804(b)(3) as statements against Bluhm’s penal interest. The trial court admitted portions
of the interview transcript, but concluded that Bluhm’s statements about his possible alibi were
inadmissible because they were not against Bluhm’s penal interests. This is the ruling that
defendant challenges on appeal.
We review defendant’s preserved evidentiary challenge for an abuse of discretion.
Benton, 294 Mich. App. at 195. “An abuse of discretion occurs when the trial court reaches a
result that is outside the range of principled outcomes.” Id. Constitutional questions are
reviewed de novo. People v Wiley, 324 Mich. App. 130, 150; 919 NW2d 802 (2018).
Under MRE 804(b)(3), if a declarant is unavailable as a witness at trial, the following is
not excluded by the hearsay rule:
A statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject the declarant to civil
or criminal liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have made the
statement unless believing it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the trustworthiness
of the statement.
“The exception is based on the assumption that people do not generally make statements about
themselves that are damaging unless they are true.” People v Washington, 468 Mich. 667, 671;
664 NW2d 203 (2003). Accordingly, “[t]he statement is trustworthy precisely, and only, to the
extent that it is, in fact, against the interest of the declarant,” and an entire conversation need not
-19-
be admitted simply because the declarant made some statements against his or her interests.
People v Watkins, 438 Mich. 627, 636-638; 475 NW2d 727 (1991).
Each factual assertion sought to be admitted under that exception must be viewed
as narrowly and specifically as reasonably possible, and the court must separately
ask whether each specific assertion is so intrinsically against the declarant’s
interest that a reasonable person would not have said it unless it were true. In
other words, to the extent such statements can be logically and reasonably severed
and dealt with independently, they should be. [Id. at 646.]
It follows that, in this case, the trial court did not abuse its discretion by admitting only
those portions of the transcript in which Bluhm made statements that tended to implicate him in
criminal wrongdoing. In contrast, Bluhm’s denials of involvement and his assertions of an
alibi—an attempt to exculpate himself—were not against his penal interests, and these
statements were, therefore, not admissible under MRE 804(b)(3). See Watkins, 438 Mich. 636-
638. Defendant has not shown an evidentiary error.
To the extent defendant claims a due-process violation arising from the trial court’s
evidentiary ruling, his claim is also without merit. “Although the right to present a defense is a
fundamental element of due process, it is not an absolute right. The 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.” People v Hayes, 421 Mich. 271, 279; 364 NW2d
635 (1984). In other words, “the right to present a defense extends only to relevant and
admissible evidence.” Solloway, 316 Mich. App. at 198. Defendant has not shown a due-process
violation arising from the trial court’s evidentiary decision to exclude portions of Bluhm’s
transcript that did not meet the criteria for admission under MRE 804(b)(3).
Finally, defendant mentions his right to confront his accusers, and he appears to make a
Confrontation Clause argument premised on the assertion that he had the right to confront Bluhm
because Bluhm implicated defendant in criminal activity during the police interview. However,
the prosecution did not call, or attempt to call, Bluhm at trial, and the prosecution did not attempt
to introduce Bluhm’s statements against defendant. Instead, defendant sought to call Bluhm as a
witness, and defendant introduced Bluhm’s statements. Although defendant was unable to call
Bluhm, this does not establish a Confrontation Clause violation because defendant did not have
an absolute right to call Bluhm as a witness in contravention of Bluhm’s privilege against self-
incrimination. See People v Dyer, 425 Mich. 578-580, 580; 390 NW2d 645 (1986); see also
United States v Luck, 852 F3d 615, 629 (CA 6, 2017). Ultimately, given that Bluhm did not
testify, defendant had no right to confront him at trial. See People v Gearns, 457 Mich. 170, 187;
577 NW2d 422 (1998), overruled in part on other grounds by People v Lukity, 460 Mich. 484;
596 NW2d 607 (1999). Defendant’s constitutional right of confrontation is simply not
implicated by the trial court’s exclusion of portions of the Bluhm transcript.
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Affirmed.
/s/ Patrick M. Meter
/s/ Colleen A. O’Brien
/s/ Jonathan Tukel
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