People of Michigan v. Moe M Aldolemy ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 11, 2020
Plaintiff-Appellee,
v No. 344447
Oakland Circuit Court
MOE M. ALDOLEMY, LC No. 17-261887-FC
Defendant-Appellant.
Before: STEPHENS, P.J., and CAVANAGH and SERVITTO, JJ.
PER CURIAM.
Defendant, Moe M. Aldolemy, appeals as of right his jury trial convictions for solicitation
of murder, MCL 750.157b(2), and felony firearm, MCL 750.227b. He was sentenced to 9 to 40
years’ imprisonment for the solicitation to murder charge and 2 years’ imprisonment for the felony
firearm charge. We affirm.
I. BACKGROUND
The relationships between the myriad persons involved in this case were complicated.
Understanding those relationships is important for any analysis of this appeal. Testimony was
adduced at trial to illuminate those relationships. The key actors in this case were: the defendant,
his sister Iman Al-Dulaimi (Iman), that of the intended victim Ahmed Alobidi (Alobidi), Mike
Alzand, and Hadeel Khalasawi, the person solicited to commit the murder. Alobidi first met the
defendant within days of immigrating to the United States from Iraq, the common birth country of
the defendant, Iman, Khalasawi, and Alzand. Alobidi lived with the defendant for a period of time
until he was abruptly asked to leave the residence. The two were estranged for a period of time
during which Alobidi began communicating with defendant’s sister, Iman, whom he later married.
In part due to immigration issues, Iman and Alobidi lived apart after their marriage and ultimately
divorced. It was this divorce that the prosecution presented as defendant’s motive for the
solicitation to murder. Khalasawi testified that he met the defendant through Alzand, a person
whom defendant blamed as a co-conspirator with Khalasawi to entrap him in this case. Alzand
and defendant had some unsatisfactory business relationships.
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The instant case began in early 2017, when defendant contacted Khalasawi. At the time,
Khalasawi was awaiting trial along with Eric Farr for an arson committed at the defendant’s gas
station. Khalasawi admitted that he had hired Farr to commit the arson but insisted he did it at the
behest of defendant who offered him a sizeable payment from insurance proceeds which were to
flow from the arson. Defendant consistently denied any involvement in the arson. Khalasawi
testified that he did not get paid for the arson. Khalasawi was angry about that lack of payment
but more importantly was concerned that it had been defendant’s gas station surveillance video
which defendant gave to the authorities that led the police to Farr. Farr, once arrested, implicated
Khalasawi who in turn implicated defendant. On the advice of counsel, Khalasawi had no contact
with defendant from the time of Farr’s arrest until January 2017. In January, defendant sent a
message to Khalasawi on Facebook to which Khalasawi did not respond. Khalasawi testified that
defendant then appeared unannounced at his family’s restaurant, the Kabab and More, on January
20, 2017, and asked him to kill Alobidi. Wary of the defendant, Khalasawi recorded the January
20th conversation, held in Arabic, on his iPhone. Khalasawi contacted his lawyer, Dennis
Johnston, shortly after the solicitation. Johnston contacted Sergeant Chad Finkbeiner (Finkbeiner),
who was the officer in charge of the arson case. Law enforcement officers collaborated with
several units of government on this case. Law enforcement secreted the intended victim, Alobidi,
to a safe location and engaged Khalasawi in a plan to record evidence of the solicitation.
Surveillance was set-up, and a January 31, 2017 meeting was arranged between Khalasawi and
defendant. The meeting was observed by law enforcement and audio recorded. Funds were
exchanged and Khalasawi gave the defendant the intended victim’s wallet as proof of completion
of the murder. Defendant was arrested after leaving the venue. Copies of the divorce papers
between Iman and Alobidi were found in the defendant’s car at the time of his arrest.
Khalasawi received a favorable plea agreement in exchange for his cooperation in this
matter. The transcript of the plea proceeding revealed that under the agreement, Khalasawi, who
was originally charged with multiple arson related offenses and facing possible lifetime
imprisonment, pled to a misdemeanor with a sentence of no incarceration. Defendant’s trial
counsel was aware of the plea arrangement prior to the prosecutor in this case becoming aware of
the plea deal. Khalasawi and Finkbeiner were examined in this regard. In that testimony, there
was discussion of Khalasawi’s immigration status. At the time of trial, Khalasawi, a two-time
felon was detained by Homeland Security. Neither the defense nor the prosecution was privy to
the transcription of the immigration court proceedings. Khalasawi was impeached on several
details of his testimony including his assertion that he did not know Alobodi and needed a picture
of Alobodi to execute the murder scheme. Additionally, Khalasawi was impeached regarding his
failure to initially reveal the involvement of his friend, Omar Nasser. Khalasawi admitted, and
Nasser testified, that after the initial contact between Khalasawi and the defendant regarding the
murder, Nassar was the messenger sent to pick up $3,000 to $4,000, merchandise, and a picture of
the intended victim from the defendant.
There were several other witnesses at trial including Steve Nissan, a disgruntled fired
employee of the defendant. Nissan testified that a few months before the solicitation he heard the
defendant threaten Alobidi. Testimony was also elicited from the law enforcement officers
involved in the case regarding their surveillance and recordings. Their testimony was substantially
similar to Khalasawi on the sequence of events.
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Crucial to this case was the translation of the recorded conversations between Khalasawi
and the defendant from Arabic to English. Both the prosecution and defense offered translations
of these conversations. The prosecution’s version came through a detective who was fluent in
Arabic. The defense versions came from a “professional” translator and the defendant himself.
An enhanced recording of one of the conversations was played for the jury during the defendant’s
testimony. Neither translator had been court certified. The versions of the conversation were
substantively different.
Defendant testified at trial. He contended that his conversations with Khalasawi concerned
the purchase of restaurant equipment. He explained that the exchange of money through Nassar
was for the needed equipment. He testified that he considered buying a property at Nine Mile
Road and Farmington Road from Knight Enterprises for a restaurant that would be like a middle
eastern National Coney Island. He testified that he offered $285,000 for the property, but that the
deal was never completed because his contact person got into a car accident. He explained the
friction between himself and Khalasawi as being based upon his arriving at the Khalasawi family
restaurant and exposing their arrangement to sell restaurant equipment. Defendant denied any
animus against Alobidi, his then former brother in-law. He testified that he was the target of a
conspiracy between several disgruntled persons including Khalasawi. The prosecution offered
witnesses to rebut any sale of land with Knight Enterprises and the concept of National Coney
Island franchise opportunities. Defendant explained that he was looking to build an independent
business not a franchise.
The jury convicted the defendant as charged.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial counsel was ineffective for failing to investigate and call
certain witnesses and for failing to investigate and disclose the full extent of Khalasawi’s plea to
the jury. For the reasons discussed below, we disagree.
A. ISSUE PRESERVATION AND STANDARD OF REVIEW
To preserve an ineffective assistance of counsel claim, a defendant must move for a new
trial or a Ginther1 hearing in the trial court. People v Payne, 285 Mich. App. 181, 188; 774 NW2d
714 (2009). Defendant’s claims are unpreserved where he took neither action in the trial court.
“A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. We review factual findings for clear error, but we review de novo questions of
constitutional law.” People v Unger, 278 Mich. App. 210, 242; 749 NW2d 272 (2008) (internal
citation omitted). Unpreserved claims of ineffective assistance of counsel are reviewed for
mistakes apparent on the record. People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008).
B. ANALYSIS
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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To establish ineffective assistance of counsel, defendant must prove “(1) that trial counsel’s
performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant.”
People v Randolph, 502 Mich. 1, 9; 917 NW2d 249 (2018), citing Strickland v Washington, 466
U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). Effective assistance of counsel is presumed, and
the defendant bears a heavy burden of proving otherwise. People v Rockey, 237 Mich App. 74,
76; 601 NW2d 887 (1999). “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 Davis, 250 Mich
App 357, 368; 649 NW2d 94 (2002). “[T]he failure to call witnesses only constitutes ineffective
assistance of counsel if it deprives the defendant of a substantial defense.” People v Dixon, 263
Mich. App. 393, 398; 688 NW2d 308 (2004). “A substantial defense is one that might have made
a difference in the outcome of the trial.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68
(2009) (citation omitted). Similarly, “[t]he failure to make an adequate investigation is ineffective
assistance of counsel if it undermines confidence in the trial’s outcome.” People v Grant, 470
Mich. 477, 493; 684 NW2d 686 (2004).
Defendant first contends that his counsel was ineffective for failing to investigate and call
five witnesses: 1) defense private investigator Steve Wittbort, 2) Ali Al-Marsoumi (Ali), 3) Zina
Alzand (Zina), 4) Rafeh Al-Marsoumi (Rafeh), and 5) Iman.
Defendant argues that defense counsel was ineffective for failing to interview and call
Wittbort, a private investigator hired by defendant, because Wittbort’s testimony would have
established that Khalasawi lied about how he obtained the picture of Alobidi and that Khalasawi
tried to get Nasser to lie about the source of the picture. In his affidavit, Wittbort averred that
Nasser said he used his own phone to duplicate a picture of Alobidi that was on defendant’s phone
and then sent it to Khalasawi. Wittbort averred that Nasser stated that Khalasawi and Alzand told
him to lie to police and say that he took the picture of Alobidi while it was on Khalasawi’s phone.
This argument fails because Wittbort’s testimony would have been inadmissible.
Wittbort’s testimony about what Khalasawi and Alzand told Nassar was inadmissible hearsay.
Hearsay is “a statement, other than the one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). Hearsay is
inadmissible unless admissible under one of the exceptions to hearsay. People v Shaw, 315 Mich
App 668, 673; 892 NW2d 15 (2016). Defendant contends that Khalasawi’s and Alzand’s
statements to Nasser would have been admissible through Wittbort’s testimony under MRE
803(24), the “catch-all” exception. Statements under MRE 803(24),
must satisfy four elements to be admissible: (1) it must have circumstantial
guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend
to establish a material fact, (3) it must be the most probative evidence on that fact
that the offering party could produce through reasonable efforts, and (4) its
admission must serve the interests of justice. Also, the offering party must give
advance notice of intent to introduce the evidence. [People v Katt, 468 Mich. 272,
279; 662 NW2d 12 (2003)].
We know that the preferred statements are double hearsay and thus deemed generally
inadmissible. “Under MRE 805, hearsay within hearsay is excluded where no foundation has been
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established to bring each independent hearsay statement within a hearsay exception.” Solomon v
Shuell, 435 Mich. 104, 129; 457 NW2d 669 (1990). Wittbort, an agent of the defendant does not
lend circumstantial credibility where the statements serve his client’s interest and are not an
admission against any significant interest of Nasser’s. Wittbort’s statements further fail to meet
the third factor under MRE 803(24) because they were not the most probative evidence of
Khalasawi’s and Alzand’s collusion to suborn perjury that defendant could produce through
reasonable efforts; Nasser’s testimony was. Nasser however, could not recall if he told Wittbort
that Khalasawi or Alzand instructed him to lie about how he obtained the photo. At best, any
testimony from Wittbort would have been impeachment against Nasser and not substantive
evidence. Defense counsel named Wittbort on the defense witness list but ultimately elected not
to call him. Since Nasser’s contradiction of Khalasawi on other crucial matters such as Khalasawi
receiving and retaining funds and goods from the defendant that he did not disclose to the police,
and Khalasawi’s failure to initially admit Nasser’s role at all, it was not an unreasonable strategic
choice not to call Wittbort. Defense counsel instead got a crucial admission from the prosecution’s
star witness. Counsel got Khalasawi to admit that he initially lied to the police and the court.
Khalasawi, himself, admitted at trial that he had initially not been truthful about how he obtained
Alobidi’s picture and that he purposely omitted from his interview with detectives and at the
preliminary examination Nasser’s involvement in obtaining the picture in order to protect Nasser.
In lieu of calling Wittbort to testify to impeach Nasser, defense counsel chose to ask Nasser
whether it was true that he told Wittbort that Khalasawi told him to say that he obtained the picture
in a different manner. “[T]his Court will not second-guess counsel regarding matters of trial
strategy, and even if defense counsel was ultimately mistaken, this Court will not assess counsel’s
competence with the benefit of hindsight.” People v Rice, 235 Mich. App. 429, 445; 597 NW2d
843 (1999). Defendant cannot overcome the strong presumption that defense counsel’s decision
to not call Wittbort and rather rely on Wittbort’s report was sound trial strategy.
Defendant next argues that defense counsel was also ineffective for failing to either
interview or call Ali and Zina, and to establish that Alzand had a motive to conspire with Khalasawi
to falsify evidence against defendant. In his affidavit, Ali averred that in 2013, when he and
defendant refused to loan Alzand money, Alzand said to Ali, “I will do something to Moe. I will
get him locked up. I will put Moe away for life.” Ali also stated that in 2013, he loaned Alzand
his car and when Alzand would not return it, defendant retrieved it back for him. Defendant’s
actions left Alzand without a vehicle and according to Ali, Alzand told Ali’s cousin that Alzand
“was going to put [defendant] and [Ali] away for life.” Ali lastly wrote that Alzand had a
“reputation in the Arabic community of Macomb County, Michigan for being a dangerous person
who seeks revenge against person [sic] who [Alzand] believes have done him wrong.”
This argument fails, also. Ali’s testimony as to what Alzand said would have been
inadmissible hearsay. Defendant contends that Alzand’s statement would have been admissible
under MRE 803(3)2 as Alzand expressing his state of mind. The statements however were
2
“The following are not excluded by the hearsay rule, . . . [a] statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including a statement of memory or belief
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allegedly made by Alzand in 2013 and therefore too remote in time to make a connection to the
events of this case in 2017. Ali’s testimony as to what Nissan said Alzand said would have been
double hearsay and defendant offers no plausible argument on its admissibility under MRE 805.
We agree that Ali’s testimony as to Alzand’s reputation would have been admissible under MRE
405(a)3. However, it was again, not an unreasonable strategic decision for counsel to focus on
Khalasawi as the prevaricator because he was the person who accused defendant of solicitation to
murder Alobidi.
The decision to not interview or call Zina did not render counsel ineffective either. Had
counsel interviewed her, we must assume that she would have responded consistent with her
affidavit. Accordingly, Alzand recounted to her that a detective told him that defendant accused
him for the arson of his gas station, and that Alzand corrected him noting, “Thank God I was able
to clarify that with the detective.” While this testimony might have provided a motive for Alzand
to conspire against the defendant for accusing him of arson, it would also have taken focus away
from Khalasawi, who faced deportation and had been prone to be an inaccurate and disgruntled
historian.
The decision not to call Rafeh does not meet the test for ineffective assistance of counsel
either. Rafeh’s affidavit stated that he saw Alzand, Alobidi and Khalasawi at the Home Depot
together in July or August of 2017. Defendant argues that Rafeh’s testimony would have proved
that Khalawasi did not need a photo from defendant to recognize Alobidi. However, Khalasawi
admitted he knew Alobidi prior to January 2017. Therefore, the fact that he was seen with Alobidi
eight months later was unnecessary for that point. If by implication counsel meant to argue that
the siting of the three in August was proof of their January conspiracy, a decision to forgo emphasis
on the connection was not unreasonable.
Defendant also argues that his defense counsel was ineffective for failing to interview and
call defendant’s sister Iman to provide evidence that defendant had no animus against Alobidi for
divorcing his sister. It was reasonable for defense counsel to not call Iman as a witness. Everything
Iman would have testified to came through other witnesses. Iman’s affidavit stated that Alobidi
and defendant were friends and that defendant supported her decision to divorce Alobidi.
Defendant testified without contradiction that he vouched for Alobidi when his father queried him
about Alobidi prior to granting permission for the marriage. Alobidi also testified without
contradiction that it was Iman’s decision to divorce and that at the time of trial, he and Iman were
actually married again. Defendant testified that he had the marriage and divorce paperwork to aid
his sister in obtaining documents from a local mosque for the divorce. Thus, Iman’s testimony
would have been duplicative. Further, even if defense counsel had chosen to call Iman to testify,
it is unlikely that she would have been able to come to the United States to do so given Alobidi’s
to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant’s will.” MRE 803(3).
3
“ In all cases in which evidence of character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-
examination, inquiry is allowable into reports of relevant specific instances of conduct.” MRE
405(a).
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testimony concerning their complicated immigration issues and his unsuccessful efforts to bring
Iman here as his wife.
The sum of defendant’s ineffective assistance of counsel claim, as it relates to the failure
to call and investigate witnesses, is that defense counsel failed to pursue an alternative theory.
Defendant’s defense to the solicitation of murder charge was that he was framed by Khalasawi.
Defendant’s alternative theory was that Khalasawi and Alzand framed him. Defendant’s affidavits
are in support of the alternative theory. In retrospect, defendant is not happy with the outcome of
defense counsel’s chosen strategy. This Court will not find counsel ineffective for choosing a
strategy that ultimately failed. People v Kevorkian, 248 Mich. App. 373, 414–415; 639 NW2d 291
(2001).4
Defendant also claims that if Wittbort were called to testify, he would have testified in
accord with his affidavit:
I know Detective Chad Jackson from the Hazel Park Police Department, because I
have played golf with him. About six months before January 2017 (well before
Khalasawi said that Aldolemy contacted him about Aldolemy’s brother in law), I
golfed with Chad Jackson and my former partner in Rochester, Michigan. Jackson
told my former partner and me that he was working a solicitation of murder case. I
asked him, “Why? You don’t have the experience to do that type of case. You do
auto theft investigations.” Jackson said, “No. I got this. We got this Chaldean guy
balls to walls.” To my knowledge, the only solicitation case that Chad Jackson has
ever handled is the case against Moe Aldolemy.
Wittbort’s statement is not only hearsay, but if offered for the truth of the matter asserted, it implies
that Detective Chad Jackson (Jackson) was involved with Khalasawi and Alzand in framing a case
against the defendant. This serious accusation may be the lone reason that defense counsel did not
call Wittbort as a witness. It was not unreasonable for defense counsel to avoid placing this
allegation before the jury altogether because if it were successfully contradicted, then Wittbort and
the witnesses he investigated would lose credibility. The record otherwise showed that it was
Finkbeiner who involved Jackson in this case on January 27, 2017.
Defendant lastly argues that defense counsel was ineffective for failing to investigate and
disclose the full extent of Khalasawi’s plea to the jury, including whether any promises were made
to Khalasawi concerning his deportation case. Khalasawi’s immigrant status and risk of
deportation was disclosed before the jury to the extent that any of the parties to this case were
4
Defendant’s contention, that defense counsel failed to investigate witnesses that would have
proven his alternative theory, is further inaccurate. Defense counsel used Wittbort’s report for its
intended purpose, as an investigation of possible witnesses for the defense. Defendant does not
argue why it was necessary for defense counsel to re-interview proposed witnesses that Wittbort
already interviewed. The decision not to call those witnesses was therefore not based on a failure
to investigate.
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aware of it. In fact, Khalasawi appeared at trial in a jumpsuit and testified that he was in a jumpsuit
because he was an immigrant of Iraq being detained by Homeland Security.
Defense counsel also thoroughly cross-examined Finkbeiner, the officer in charge of
Khalasawi’s arson case, on the issue of Khalasawi’s plea bargain at trial. The jury learned from
Finkbeiner that in May 2017, Khalasawi entered a plea of no contest to receiving and concealing
stolen property in exchange for dismissal of the arson related charges and his continued
cooperation in the solicitation to murder case against the defendant. Finkbeiner agreed that
Khalasawi’s plea was to “a much less serious charge” and that if Khalasawi did not continue to
cooperate, he would lose the benefits of his plea bargain and the more serious charges would be
reinstated. He further agreed that Khalasawi ultimately received a sentencing agreement that
included only fines, fees and costs, and no jail or probation. The jury learned that Khalasawi was
later allowed to withdraw his May 2017 plea for an even lesser charge and that this lesser charge
was offered “in the hope that it might help avert [Khalasawi’s] immigration consequences.”
Khalasawi’s attorney representing him in the arson case, Johnston, agreed that there was
ultimately a Cobbs5 agreement in Khalasawi’s arson case that Khalasawi would plead no contest
to a high court misdemeanor and receive no jail time. He agreed that in May 2017, Khalasawi
entered a no contest plea to a reduced charge of attempted receiving or concealing stolen property.
Johnston also agreed that Khalasawi was able to withdraw the May 2017 plea and plead to a further
reduced charge. Johnston acknowledged that the original charge of arson conspiracy carried a
maximum sentence of 20 years and the reduced charges only carried a potential sentence of up to
two years.
It is clear from the record, that outside of identifying the exact counts of arson Khalasawi
was charged with and that exact counts that were dismissed, defense counsel’s performance was
not deficient in investigating and presenting the full scope of Khalasawi’s criminal proceedings
concerning his arson charges. Defense counsel had obtained the transcripts from Khalasawi’s plea
proceedings from Macomb County concerning the arson as evidenced by his use of the transcripts
to cross-examine Johnston. He also provided an affidavit for defendant’s use in this appeal that
acknowledged he was aware of Khalasawi’s deportation proceedings and relied on the prosecutor’s
information that Khalasawi was facing imminent deportation. Defense counsel’s reliance on that
information was not unreasonable where on appeal, plaintiff represents that Khalasawi was already
ordered to be deported by an immigration court and was appealing that decision to the Sixth Circuit
Court of Appeals. Defense counsel averred in his affidavit, that he did not ask the prosecutor or
Khalasawi’s attorney, Johnston, while Johnston was on the stand, about whether any promises
were made to Khalasawi to aid him with his deportation case. However, defense counsel’s reliance
on the record of the plea proceedings in Macomb County was reasonable and did not constitute
deficient performance. A review of the plea transcripts reveals that Khalasawi ultimately received
a significantly reduced plea from his original arson charges, but there was always the
understanding that either of Khalasawi’s no contest pleas could result in his deportation. For
example,
5
People v Cobbs, 443 Mich. 276; 505 NW2d 208 (1993).
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Court: Did you have an opportunity to discuss this with Mr. Khalasawi’s attorney?
Prosecutor: Yes, I did.
Court: And you advised him of the potential for deportation associated with this
plea?
Prosecutor: Yes, and I believe Mr. Khalasawi understands that sort of risk.
Court: All right. Having had that opportunity, I understand there’s certain
conditions that would weigh favorably, but not necessarily guaranty that he would
not be deported.
Defendant suggests that this particular colloquy indicated that there was some other explicit or
implicit off-the-record promise concerning Khalasawi’s immigration. The colloquy equally and
plainly also suggested that “the conditions” referred to were not outside promises, but rather the
fact that the plea agreed to was of the kind that they mistakenly thought was less likely to result in
Khalasawi’s deportation. Otherwise, Khalasawi was asked, and testified under oath at the plea
proceedings that there were no other promises, threats, inducement or coercion to get him to plea
to the reduced charges. Even if defense counsel had discovered that the Oakland County
prosecutor offered to aid Khalasawi in his deportation proceedings, defendant fails to explain how
that would affect the outcome of his case when the jury clearly heard Finkbeiner already testify
that the reduced plea was offered “in the hope that it might help avert [Khalasawi’s] immigration
consequences.”
In sum, we find that defendant received the effective assistance of counsel. Accordingly,
remand for an evidentiary hearing on defendant’s ineffective assistance of counsel claims is not
necessary.
III. MRE 404(B)
Defendant argues that the trial court erred in allowing Khalasawi to testify that defendant
hired him to burn down defendant’s gas station because the arson was a separate bad act that had
nothing to do with the solicitation to murder, and defendant was not given notice of the
prosecutor’s intent to introduce the evidence. We agree in part, and disagree in part.
A. STANDARD OF REVIEW
We review the 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 abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes.” People v Yost,
278 Mich. App. 341, 379; 749 NW2d 753 (2008). Preserved evidentiary “error is not a ground for
reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more
probable than not that the error was outcome determinative.” People v Lukity, 460 Mich. 484, 496;
596 NW2d 607 (1999).
B. ANALYSIS
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MRE 404(b) provides:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
(2) The prosecution in a criminal case shall provide written notice at least 14 days
in advance of trial, or orally on the record later if the court excuses pretrial notice
on good cause shown, of the general nature of any such evidence it intends to
introduce at trial and the rationale, whether or not mentioned in subparagraph
(b)(1), for admitting the evidence. If necessary to a determination of the
admissibility of the evidence under this rule, the defendant shall be required to state
the theory or theories of defense, limited only by the defendant's privilege against
self-incrimination.
MRE 404(b) “is a rule 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 VanderVliet, 444 Mich. 52, 61-63; 508 NW2d
114 (1993). The rule “is not exclusionary, but is inclusionary, because it provides a nonexhaustive
list of reasons to properly admit evidence that may nonetheless also give rise to an inference about
the defendant's character.” People v Mardlin, 487 Mich. 609, 616; 790 NW2d 607 (2010).
“Requiring the prosecution to give ‘pretrial notice of its intent to introduce other acts evidence at
trial’ is designed to ‘promote [ ] reliable decision making,’ to ‘prevent[ ] unfair surprise,’ and to
‘offer [ ] the defense the opportunity to marshal arguments regarding both relevancy and unfair
prejudice.’ ” People v Jackson, 498 Mich. 246, 261; 869 NW2d 253 (2015) quoting VanderVliet,
444 Mich. at 89 n 51.
Res gestae evidence is evidence that is “ ‘so blended or connected with’ “ the charged
offense “ ‘that proof of one incidentally involves the other or explains the circumstances of the
crime.’ ” People v Delgado, 404 Mich. 76, 83; 273 NW2d 395 (1978) (citations omitted). The
evidence must have “a causal, temporal or spatial connection with the charged crime. Typically,
such evidence is a prelude to the charged offense, is directly probative of the charged offense,
arises from the same events as the charged offense, forms an integral part of a witness’s testimony,
or completes the story of the charged offense.” United States v Hardy, 228 F3d 745, 748 (CA 6,
2000).
It is the nature of things that an event often does not occur singly and independently,
isolated from all others, but, instead, is connected with some antecedent event from
which the fact or event in question follows as an effect from a cause. When such is
the case and the antecedent event incidentally involves the commission of another
crime, the principle that the jury is entitled to hear the ‘complete story’ ordinarily
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supports the admission of such evidence. [People v Sholl, 453 Mich. 730, 742; 556
NW2d 851 (1996) (citations omitted)].
“[T]here is no ‘res gestae exception’ to MRE 404(b)”; meaning that the trial court cannot admit
other acts evidence that satisfies the definition of res gestae evidence without complying with MRE
404(b). Jackson, 498 Mich. at 270, 274.
Khalasawi’s testimony that defendant hired him to burn down defendant’s own gas station
provided additional context to the relationship between the two men, including the animus upon
which much of the defense theory was based. Even so, res gestae evidence must comply with
MRE 404(b), Jackson, 498 Mich. at 268-269, and Khalasawi’s testimony was clearly evidence of
defendant’s other bad acts under the rule. Thus, the court’s failure to analyze the evidence under
that rule was error.
Notwithstanding the court’s failure to analyze the testimony under MRE 404(b), the
evidence was relevant for a non-propensity purpose. Under the rule, evidence of defendant’s other
bad acts is admissible to show, inter alia, “scheme, plan, or a system in doing an act.” MRE
404(b)(1). Khalasawi’s testimony that defendant had hired him before to commit the arson was
admissible to show defendant’s scheme or plan of hiring persons to commit criminal acts for him
for compensation. The probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. The evidence provided defendant with an additional motive to argue
that Khalasawi sought revenge against him and was used to attack Khalasawi’s credibility in
testifying against defendant as part of his cooperation for his arson plea. The court further
instructed the jury not to consider the evidence to show that defendant was a bad person.
While it is undisputed that the prosecutor did not provide pretrial notice of the other acts
evidence under MRE 404(b), the defendant must demonstrate that this error “more probably than
not ... was outcome determinative.” Jackson, 498 Mich. at 270 (citation omitted). Defense counsel
stated that despite there not being any notice, he was not surprised. In fact, defense counsel
objected to Khalasawi’s testimony because he anticipated that Khalasawi was going to implicate
defendant in the arson. Defense counsel was fully aware of Khalasawi’s plea proceedings in the
arson case. Although the defendant was not afforded his opportunity to cross-examine Finkbeiner
or introduce a Facebook page, he has not shown that either argument would have been helpful.
Defendant’s stated reason for wanting to cross-examine Finkbeiner was to impeach Khalasawi’s
testimony, but defendant admits that Khalasawi’s credibility was impeached in numerous other
ways and that the prosecution’s case was weak because of the impeachment. Additionally, the
introduction of Alzand’s Facebook page to show that he, Alobidi, and Alzand were friends did not
prejudice defendant when Khalasawi never denied knowing Alobidi, admitted that Alobidi was
friends with Alzand, and testified that he was unaware that Alzand listed him and Alobidi as his
first Facebook friends. “Consequently, this case does not invoke the Supreme Court’s concern
that, without notice, the prosecutor was able to use irrelevant, inadmissible prior bad acts evidence
to secure [defendant’s] conviction.” People v Hawkins, 245 Mich. App. 439, 455; 628 NW2d 105
(2001).
IV. PROSECUTORIAL MISCONDUCT
Defendant argues the prosecutor committed misconduct in four instances. We disagree.
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A. ISSUE PRESERVATION AND STANDARD OF REVIEW
Defendant did not preserve his claims of prosecutorial misconduct by simultaneous
objection. People v Aldrich, 246 Mich. App. 101, 110; 631 NW2d 67 (2001).
“This Court reviews claims of prosecutorial misconduct case by case, examining the
remarks in context, to determine whether the defendant received a fair and impartial trial.” Aldrich,
246 Mich. App. at 110. Unpreserved claims of prosecutorial misconduct are reviewed for plain
error affecting the defendant’s substantial rights. People v Carines, 460 Mich. 750; 597 NW2d
130 (1999). “To avoid forfeiture of . . . unpreserved claims of prosecutorial misconduct,
defendant must establish that errors occurred, these errors were clear or obvious, and the errors
affected the outcome of the trial court proceedings.” People v Schultz, 246 Mich. App. 695, 709;
635 NW2d 491 (2001). “No error requiring reversal will be found if the prejudicial effect of the
prosecutor’s comments could have been cured by a timely instruction.” People v Schutte, 240
Mich. App. 713, 721; 613 NW2d 370 (2000).
B. ANALYSIS
The test for prosecutorial misconduct is “whether the prosecutor committed errors during
the course of trial that deprived defendant of a fair and impartial trial.” People v Cooper, 309
Mich. App. 74, 88; 867 NW2d 452 (2015).
Defendant first argues that the prosecutor violated Brady v Maryland6 with the suppression
of favorable evidence; specifically, that the prosecutor suppressed implicit or explicit promises
that were a part of Khalasawi’s plea that, if exposed, would question Khalasawi’s credibility.
Defendant further contends that the prosecutor’s failure to correct testimony regarding the extent
of the plea bargain worked to vouch for Khalasawi’s credibility and bolstered the prosecution’s
case.
In order to establish a Brady violation, a defendant must prove: (1) that the state
possessed evidence favorable to the defendant; (2) that the defendant did not
possess the evidence nor could the defendant have obtained it with any reasonable
diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that
had the evidence been disclosed to the defense, a reasonable probability exists that
the outcome of the proceedings would have been different. [People v Cox, 268
Mich. App. 440, 448; 709 NW2d 152 (2005)].
Defendant fails to prove that the prosecution suppressed favorable evidence. The full
extent of Khalasawi’s plea deal was told to the jury through Finkbeiner’s, Johnston’s, and
Khalasawi’s testimony. Further, the plea proceedings were a matter of public record which defense
counsel obtained and used on cross-examination.
Defendant also argues that the prosecutor allowed false testimony concerning the plea
bargain and failed to correct it. Defendant’s contention is inaccurate. The register of actions for
6
373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
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Khalasawi’s arson case shows that Khalasawi was arraigned in January 2016. Khalasawi’s trial in
the arson case was scheduled for January 24, 2017, but rescheduled. Defendant assumes that the
rescheduling was a benefit that Khalasawi received as a part of a plea agreement involving the
solicitation to murder case. However, Finkbeiner, the officer in charge of the arson case, testified
that he contacted Jackson of the Hazel Park police station on January 27, 2017, because the
solicitation to murder occurred outside Finkbeiner’s Sterling Heights’ jurisdiction. Thus, neither
Macomb or Oakland County became involved in the solicitation to murder case until after the
arson trial was adjourned. Further, Johnston testified that while there were discussions about the
information Khalasawi had, there was not a plea reached regarding Khalasawi’s cooperation in the
solicitation to murder case until May 2017 with the plea to attempted larceny in a building.
Defendant also argues that the prosecutor denigrated defendant’s character during opening
statement. Defendant is specifically referring to the prosecutor’s remark in opening statement that
“if you are going to try the devil, and I don’t mean to say that the defendant is the devil, but
sometimes you have to go to hell to get your witnesses.” When the entire statement is read in
context, there was no evidence of prosecutorial misconduct because the prosecutor was plainly
talking about the character of his own witness, Khalasawi, and explicitly said that he was not
referring to the defendant as the devil. Further, this remark was made during the prosecutor’s
opening argument. The jury was instructed that the lawyer’s arguments were not evidence and
should not be considered as such. A prosecutor’s improper argument may be cured by a cautionary
instruction that the arguments of counsel are not evidence. People v Abraham, 256 Mich. App. 265,
276; 662 NW2d 836 (2003).
Defendant additionally argues that the prosecutor improperly offered testimony of his own
opinion in closing argument concerning the defendant’s testimony that he was purchasing used
kitchen equipment. Prosecutors “are generally free to argue the evidence and all reasonable
inferences from the evidence as it relates to their theory of the case.” Unger, 278 Mich. App. at 236
(internal citation omitted). After a review of the record, we conclude that the prosecutor’s
comments did not constitute prosecutorial misconduct. Instead, the prosecutor properly argued
the plausibility of defendant’s version of events. A prosecutor is free to argue “that a witness is
not worthy of belief.” People v Caldwell, 78 Mich. App. 690, 692; 261 NW2d 1 (1977). Further,
the remarks were made during the prosecutor’s closing argument. The jury was instructed that the
lawyer’s arguments were not evidence and should not be considered as such. Any prejudice
resulting from a prosecutor’s improper argument may be cured by a cautionary instruction that the
arguments of counsel are not evidence. People v Abraham, 256 Mich. App. 265, 276; 662 NW2d
836 (2003).
Defendant further argues that counsel was ineffective for not objecting to the above
allegations of prosecutorial misconduct. However, where defendant fails to prove his claims of
prosecutorial misconduct, so do his claims of ineffective assistance based on the same misconduct
fail. “[D]efendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
V. MRE 404(A)
Defendant argues that the trial court erred in admitting Adam Whiting’s testimony that
defendant had some violent tendencies because the testimony was improper character evidence.
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We agree that the testimony should not have been admitted, but disagree that its admission
constitutes error requiring reversal.
A. ISSUE PRESERVATION AND STANDARD OF REVIEW
“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.” Aldrich,
246 Mich. App. at 113; 631 NW2d 67 (2001). Defense counsel objected to the admission of the
evidence at trial on the ground that it was irrelevant, but not for the reasons on appeal that it was
improper character evidence or that it denied the defendant a fair trial, therefore this issue is
unpreserved.
We review unpreserved evidentiary error for plain error affecting defendant’s substantial
rights. People v Coy, 258 Mich. App. 1, 16; 669 NW2d 831 (2003). A defendant’s substantial
rights are affected if the error affects the outcome of the proceedings. People v Carines, 460 Mich.
750, 763; 597 NW2d 130 (1999).
B. ANALYSIS
Whiting was one of the officers positioned in the area of the Kabab and More to effectuate
defendant’s arrest on January 31, 2017, after defendant met with Khalasawi at the restaurant to
pay Khalasawi for supposedly murdering Alobidi. While surveilling defendant, Whiting noticed
that when defendant’s vehicle came to a stop, defendant’s hands left the wheel and went down.
Whiting testified that he relayed this information over the radio. When the prosecutor asked
Whiting why he relayed that information over the radio, Whiting responded, “We received
information in our briefing that he had some violent tendencies—” Whiting then proceeded to
testify, over defense counsel’s objection, about the importance of relaying the information to
fellow officers over concern that the suspect might have a gun. The following day, jurors asked
that their faces not be shown on television by news crews recording the trial. Defendant attributes
this request to the jury being afraid of defendant after Whiting’s testimony.
Whiting’s testimony that defendant had some violent tendencies was improper character
evidence under MRE 404(a).7 There was no evidence of record that defendant was a violent
person, nor was the evidence relevant to any fact issue at trial. Defense counsel objected and the
court’s response was more to the prosecution’s comment that the testimony was not solicited,
rather than a ruling on defendant’s objection that the testimony was irrelevant.
The erroneous admission of evidence is not a basis for reversal unless the error affected
the outcome of the proceedings, and in defendant’s case, it did not. Whiting’s entire testimony
was brief, and this particular portion of his testimony was unsolicited, objected to, and not raised
again. To argue that the jurors were concerned over their safety when they inquired about the
television cameras in the courtroom the following day is conjecture when it was equally plausible
that their concerns were over privacy and just not wanting to be on television. Otherwise,
7
“Evidence of a person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion . . .” MRE 404(a).
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Whiting’s brief comment did not affect the outcome of defendant’s case in light of the
overwhelming evidence of defendant’s guilt. Whiting’s testimony did not affect Khalasawi’s
testimony that defendant solicited him to murder Alobidi. Nor did it affect the evidence of
Nasser’s testimony that he took a picture of Alobidi off defendant’s phone and forwarded the
picture, plus what turned out to be Alobidi’s address to Khalasawi from the defendant. The
evidence of the recorded phone calls between Khalasawi and defendant and that defendant later
showed up with the money promised in exchange for murdering Alobidi was unaffected. Police
discovered Alobidi’s wallet wedged between the two front seats and, Alobidi and Iman’s divorce
and marriage paperwork. Further, Alobidi testified that he was not surprised that defendant would
try to kill him. On this record, defendant fails to establish that the erroneous admission of
Whiting’s testimony affected his substantial rights.
VI. OV 10
Defendant argues the trial court erred in scoring OV 10 at 15 points when there was no
evidence that Alobidi was a vulnerable victim nor that he was exploited. We disagree.
A. STANDARD OF REVIEW
We review for clear error a trial court’s factual determinations supporting its assessment
of offense variable points. People v Gloster, 499 Mich. 199, 204; 880 NW2d 776 (2016). “Whether
the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the
application of the facts to the law, is a question of statutory interpretation, which an appellate court
reviews de novo.” People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). Clear error exists
when the Court is “left with a definite and firm conviction that a mistake has been made.” People
v Stone, 269 Mich. App. 240, 242; 712 NW2d 165 (2005).
B. ANALYSIS
“Offense variable 10 is exploitation of a vulnerable victim.” MCL 777.40(1). MCL
777.40(1)(a) directs that 15 points be assessed when the defendant engaged in “predatory conduct.”
“Predatory conduct” is defined as “preoffense conduct directed at a victim . . .for the primary
purpose of victimization.” MCL 777.40(3)(a). It “does not encompass any ‘preoffense conduct,’
but rather only those forms of ‘preoffense conduct’ that are commonly understood as being
‘predatory’ in nature, e.g., lying in wait and stalking, as opposed to purely opportunistic criminal
conduct or ‘preoffense conduct involving nothing more than run-of-the-mill planning to effect a
crime or subsequent escape without detection.’ ” People v Huston, 489 Mich. 451, 462; 802 NW2d
261 (2011). Preoffense conduct is not “predatory if its main purpose is other than making the
potential victim an actual victim.” People v Cannon, 481 Mich. 152, 161; 749 NW2d 257. (2008)
“Victimize” is defined as “to make a victim of.” Id. (Citation omitted). “Victim” is defined as
“1. a person who suffers from a destructive or injurious action or agency .... 2. a person who is
deceived or cheated....” Id. (Citation omitted). “[P]oints should be assessed under Ov. 10 only
when it is readily apparent that a victim was ‘vulnerable,’ i.e., was susceptible to injury, physical
restraint, persuasion, or temptation.” Id. at 157–158. We consider the following factors when
determining if the victim was vulnerable:
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(1) the victim’s physical disability, (2) the victim’s mental disability, (3) the
victim's youth or agedness, (4) the existence of a domestic relationship, (5) whether
the offender abused his or her authority status, (6) whether the offender exploited a
victim by his or her difference in size or strength or both, (7) whether the victim
was intoxicated or under the influence of drugs, or (8) whether the victim was
asleep or unconscious. [Id. at 158–159.]
A victim need not be inherently vulnerable; rather, “a defendant’s ‘predatory conduct,’ by that
conduct alone (eo ipso), can create or enhance a victim’s ‘vulnerability.’ ” Huston, 489 Mich. at
454.
The trial court’s finding that OV 10 should be scored at 15 points was not clearly erroneous.
There was testimony that Khalasawi and Alobidi were acquaintances where Khalasawi knew of
Alobidi from his carpentry work. Defendant argues Khalasawi and Alobidi were good friends.
Considering either relationship, defendant’s choice of Khalasawi to murder Alobidi was
preoffense predatory conduct not only aimed at injuring Alobidi, but to make him more vulnerable
to attack. Alobidi testified that he suspected defendant would try to hurt him for having divorced
defendant’s sister. However, Khalasawi was not similarly on Alobidi’s radar. Alobidi was
vulnerable to an attack from Khalasawi because it would have been unexpected, confusing and
shocking. Accordingly, a preponderance of the evidence supports finding that defendant engaged
in preoffense predatory conduct directed at a vulnerable victim for the purpose of victimization.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
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