People of Michigan v. Joseph Alan Craigo ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 30, 2020
Plaintiff-Appellee,
v No. 345697
Cass Circuit Court
JOSEPH ALAN CRAIGO, LC No. 17-010107-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
A jury convicted defendant of first-degree murder, MCL 750.316(1)(a); carrying a
dangerous weapon with unlawful intent, MCL 750.226; assault with a dangerous weapon
(felonious assault), MCL 750.82; and interfering with electronic communications, MCL
750.540(5)(a). The trial court sentenced defendant, as a fourth-offense habitual offender, MCL
769.12, to life imprisonment for first-degree murder, 7 to 20 years’ imprisonment for carrying a
dangerous weapon with unlawful intent, 536 days for felonious assault, and 536 days for
interfering with electronic communication. Defendant appeals as of right. We affirm.
Defendant’s convictions arise from the stabbing death of his father, Alan Craigo. At trial,
defendant admitted that he killed Alan, but he claimed that Alan attacked him and that the killing
was done in self-defense. In contrast, the prosecutor presented evidence that defendant went to
his parents’ home looking for items to sell; that defendant grew upset when Alan refused to give
him the property he wanted; and that defendant then attacked Alan, placing him in a headlock
before repeatedly stabbing him. There was also evidence that defendant brought the knife with
him to his parents’ home, that defendant was overhead by a neighbor saying he was going to “kill”
someone, and that defendant tried to prevent his mother, Ellen Craigo, from calling for help. The
jury convicted defendant as noted.
I. PHOTOGRAPHS
On appeal, defendant first argues that the trial court committed plain error by admitting (1)
135 crime scene photos, (2) 21 autopsy photos, and (3) a photograph of defendant. Alternatively,
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defendant contends that defense counsel provided ineffective assistance by failing to object to this
evidence. We disagree.
As an initial matter, we note that defendant waived review of his evidentiary claim when
his attorney affirmatively stated “no objection” when the prosecutor moved to introduce the photos
in question. See People v Carter, 462 Mich. 206, 215-216; 612 NW2d 144 (2000); see also People
v McDonald, 293 Mich. App. 292, 295; 811 NW2d 507 (2011) (concluding that an affirmative
statement of “no objection” waived evidentiary error). Defendant’s waiver extinguished any error.
See Carter, 462 Mich. at 215. Our review of this issue is, therefore, limited to defendant’s
ineffective assistance claim.
“To establish ineffective assistance of counsel, defendant must show (1) that defense
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms and (2) that there is a reasonable probability that, but for counsel’s errors, a
different outcome would have resulted.” People v Jackson, 292 Mich. App. 583, 600-601; 808
NW2d 541 (2011). “Effective assistance of counsel is presumed, and a defendant bears a heavy
burden of proving otherwise.” People v Putman, 309 Mich. App. 240, 248; 870 NW2d 593 (2015).
“[C]ounsel is not ineffective for failing to raise meritless or futile objections.” Id. at 245.
To determine whether defense counsel provided ineffective assistance by failing to object
to the photographs, we begin by considering the admissibility of these photographs. “Photographic
evidence is generally admissible as long as it is relevant, MRE 401, and not unduly prejudicial,
MRE 403.” People v Gayheart, 285 Mich. App. 202, 227; 776 NW2d 330 (2009). “ ’Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” MRE 401. Under MRE 403, “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”
A. CRIME SCENE AND AUTOPSY PHOTOS
In general, photographs depicting the nature and extent of a victim’s injuries may be
probative of the defendant’s mental state and his or her intent to kill, and photographs of injuries
may also be useful to establishing a victim’s cause of death. People v Head, 323 Mich. App. 526,
541; 917 NW2d 752 (2018); Gayheart, 285 Mich. App. at 227. “Photographs may properly be used
to corroborate other evidence and are not excludable simply because they are cumulative of a
witness’s oral testimony.” Gayheart, 285 Mich. App. at 227. Further, “[g]ruesomeness alone need
not cause exclusion.” People v Mills, 450 Mich. 61, 76; 537 NW2d 909 (1995), mod 450 Mich.
1212 (1995).
[P]hotographs that are merely calculated to arouse the sympathies or prejudices of
the jury should not be admitted. However, if a photograph is otherwise admissible
for a proper purpose, it is not rendered inadmissible merely because it brings vividly
to the jurors the details of a gruesome or shocking accident or crime. [Head, 323
Mich. App. at 541 (quotation marks and citation omitted).]
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“The proper inquiry is always whether the probative value of the photographs is substantially
outweighed by unfair prejudice.” Mills, 450 Mich. at 76.
In this case, defendant objects on appeal to the admission of crime scene photographs and
photographs of Alan’s autopsy. Defendant characterizes the photographs as “gruesome” and
asserts that the photos should not have been admitted because they were “minimally” relevant,
unfairly prejudicial, and unnecessarily cumulative. More specifically, regarding relevance,
defendant contends that the photos were irrelevant because matters such as (1) Alan’s cause of
death, (2) the nature and extent of his injuries, (3) the type of weapon used, and (4) even
defendant’s participation in Alan’s death were undisputed.
Defendant’s relevance argument lacks merit for two reasons. First, contrary to defendant’s
argument, regardless of whether defendant “disputed” issues such as the cause of death or the
extent of Alan’s injuries, in a homicide prosecution these matters—bearing on defendant’s intent
and other elements of the crime—were clearly at issue, and defendant cannot have the evidence
excluded simply by asserting that issues were undisputed. See Mills, 450 Mich. at 69-72 (“The
prosecution must carry the burden of proving every element beyond a reasonable doubt, regardless
of whether the defendant specifically disputes or offers to stipulate any of the elements.”).
Second, defendant is incorrect in his assertion that the photographs depicting the crime
scene and Alan’s autopsy were only relevant to undisputed issues. The central dispute at trial was
whether defendant acted in self-defense when he killed Alan or whether defendant was guilty of
murder. In the context of a murder case involving a claim of self-defense, autopsy photos depicting
the nature and extent of Alan’s wounds as well as crime scene photos illustrating the layout of the
home, Alan’s injuries, and the extent of Alan’s blood loss—particularly given evidence that
defendant was uninjured and that some of Alan’s wounds appeared to be defensive wounds—were
relevant to the jury’s assessment of (1) whether Alan or defendant was the initial aggressor,
(2) whether defendant intended to kill Alan or, as asserted by defendant, defendant simply tried to
get Alan “off” and “away” from him, (3) whether defendant reasonably believed he was in
imminent danger, (4) whether defendant used a reasonable amount of force in responding to an
alleged threat from an unarmed man, and (5) ultimately whether defendant acted in self-defense.
See generally People v Dupree, 486 Mich. 693, 707; 788 NW2d 399 (2010). Contrary to
defendant’s assertion that the photos were minimally relevant, the photos had considerable
probative value.1
Recognizing the photos’ relevance and strong probative value on matters of consequence,
there is no merit to defendant’s assertion that unfair prejudice outweighed the probative value of
the evidence. See MRE 403. Some of the photos depicting Alan’s injuries and the bloody crime
1
Additionally, the photos were relevant to questions of witness credibility. See Mills, 450 Mich.
at 72 (“Critical to the instant case and a fact that is also ‘of consequence’ to a determination is the
credibility of the witnesses offering testimony.”). For example, the autopsy photos were relevant
to an assessment of the medical examiner’s expert opinions. See id. (“The jury was entitled to
view the nature and extent of the injuries for themselves, and not to depend solely on the testimony
of the experts.”). Likewise, the crime scene photos corroborated lay witness testimony. See id.
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scene may be gruesome, but gruesomeness alone does not warrant exclusion of the evidence under
MRE 403 when the photos were relevant to a proper determination of defendant’s guilt. See Mills,
450 Mich. at 79; Head, 323 Mich. App. at 541.
There is also no merit to defendant’s assertion that the photographs involved the needless
presentation of cumulative evidence. See MRE 403. In this regard, defendant asserts that the
photos were repetitive and that the sheer volume of photographs was unnecessary. Defendant’s
argument, however, ignores the nature of the crime scene in this case and the sheer number of
Alan’s injuries. For example, regarding the autopsy photos and photos of Alan’s wounds taken at
the scene, the medical examiner testified that Alan suffered at least 11 injuries and that 11 would
be a “conservative” estimate. In this context, 22 autopsy photos and an additional few photos at
the scene depicting three separate stab wounds to Alan’s abdomen and a fourth stab wound to his
neck as well as numerous, relatively superficial injuries to Alan’s hand, thumb, chest, arm, ear,
and neck do not appear particularly cumulative or excessive. Instead, the chosen photos—showing
different injuries and different angles—appear designed to allow the jury to view the nature and
extent of Alan’s injuries for themselves. See Mills, 450 Mich. at 72. Likewise, the crime scene
photos depict numerous and various aspects of the crime scene, the layout of the home, and the
evidence recovered at the scene.2 While defendant emphasizes the “gruesome” nature of the crime
scene photos, more than 50 of the photos do not depict blood or anything that could be considered
“gruesome.” There are of course photos showing blood throughout the home, but the reality is
that Alan bled excessively while moving around the home, and as a result, there was blood in many
of the rooms in the home. Nevertheless, the fact remains that the photos depict different views
and different pieces of evidence relevant to the case. The fact that many of the photos also contain
blood does not render them cumulative or needlessly repetitive. Instead, the chosen photos appear
designed to allow the jury to view the layout of the home, the crime scene, and the evidence
recovered. MRE 403 does not warrant exclusion of this evidence.
In sum, the crime scene and autopsy photographs were relevant, see MRE 401, and not
otherwise excludable under MRE 403. Consequently, the photographs were admissible. See
Gayheart, 285 Mich. App. at 227. It follows that defense counsel did not perform unreasonably by
failing to make a meritless objection to the admission of these photos. See Putman, 309 Mich. App.
at 245. Moreover, with regard to prejudice, defendant appears to concede that at least some of the
photos were relevant and admissible. In this context, it is challenging to see how defendant could
establish outcome-determinative error on the basis that some of the pictures might have been
repetitive. Indeed, defendant makes no attempt to explain how this Court should determine
precisely how many photos would be too many photos. Furthermore, the testimony about the
photos was not particularly prolonged, and there was no attempt to use the photos to arouse the
sympathies or prejudices of the jury. See Head, 323 Mich. App. at 541. On this record, defendant
2
For example, the photos included photos of (1) the outside of the front of the home, (2) the
backyard and back of the home, (3) the deck, (4) the location of the knife in the driveway, (5) the
knife, (6) the living room, (7) kitchen, (8) hallways, (9) walls, (10) the bedroom, (11) bathroom,
(12) closets, (13) furniture, (14) the safe, (15) keys, (16) phones, (17) a computer screen,
(18) doors, (19) entryways, (20) blood trails, (21) blood patterns, and (22) the location of Alan’s
body.
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has not shown outcome-determinative error, and he has not shown that he was denied the effective
assistance of counsel. See Jackson, 292 Mich. App. at 600-601.
B. PHOTO OF DEFENDANT
Defendant also contends that defense counsel provided ineffective assistance by failing to
object to the admission of a photograph of defendant. Defendant characterizes the picture as a
“mug shot” depicting defendant in a prison “jumpsuit,” and defendant asserts that the photo was
irrelevant and that presenting the jury with the photo was tantamount to requiring him to appear at
trial in prison garb. The photo shows defendant wearing orange. However, only the collar of the
shirt is visible, and it is not apparent whether the orange collar belongs to an ordinary shirt or a
prison “jumpsuit.” There are no identifiable prison numbers or other police information visible on
defendant’s clothing or otherwise in the photo. The background in the photo is a bare, plain wall.
According to the testimony at trial, the photograph in question showed defendant’s
appearance as he looked at the time of Alan’s death in March 2017. As compared to defendant’s
clean-shaven face and close-cropped hair at the time of trial, the image of defendant from March
2017 showed defendant with bushier, curly hair and a beard. In this context, the prosecutor used
the photo for identification purposes when questioning witnesses, such as police officers and the
phlebotomist who drew defendant’s blood in March 2017. Indeed, when asked to identify
defendant, several of the witnesses noted that defendant’s appearance had changed. For example,
when asked to identify defendant in court, the phlebotomist who drew defendant’s blood stated
that defendant looked “a little different” at trial than he did when she drew his blood in March
2017. She then identified him from the photo. A police detective who interviewed defendant the
night of Alan’s death also testified that defendant may have “possibly” had a beard in March 2017,
and he then confirmed that the photo showed how defendant looked on March 27, 2017. Given
the change in defendant’s appearance between March 2017 and trial, the photo illustrating that
change was generally relevant to the witnesses’ identification of defendant and the witnesses’
respective assertions that the man sitting at the defense table during trial was the man they
interviewed or subjected to a blood draw, etc. See MRE 401.
In contrast, in contesting the admission of the photo, defendant makes two basic arguments.
First, he asserts that the photo was irrelevant because his identity as the killer was not at issue.
However, when a defendant pleads not guilty, all the elements of an offense, including identity,
are at issue. See Mills, 450 Mich. at 70; see also People v Yost, 278 Mich. App. 341, 356; 749 NW2d
753 (2008) (“[I]dentity is an element of every offense.”). Moreover, even if defendant’s identity
as the killer was not specifically disputed in this case, the witnesses’ identification of defendant
was relevant to their credibility. In other words, photographic corroboration for various witnesses’
assertions that defendant looked “different” than they remembered was relevant to the jury’s
assessment of the reliability and credibility of their testimony as a whole. See Mills, 450 Mich. at
72 (“If a witness is offering relevant testimony, whether that witness is truthfully and accurately
testifying is itself relevant because it affects the probability of the existence of a consequential
fact.”). There is no merit to defendant’s contention that his appearance in March 2017 as shown
in the photo, as compared to his appearance at trial, was wholly irrelevant.
Second, even if relevant, defendant asserts that his photo should not have been admitted
because it was a “mug shot” with indicia of incarceration that unfairly prejudiced him, and denied
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him due process, by suggesting that he had previously been arrested and committed a crime,
thereby impermissibly clothing him as a convict in the jurors’ mind. According to defendant,
showing the photo to the jury was equivalent to requiring him to appear at trial in prison garb.
“Under the presumption of innocence, guilt must be determined solely on the basis of the
evidence introduced at trial rather than on official suspicion, indictment, continued custody, or
other circumstances not adduced as proof at trial.” People v Rose, 289 Mich. App. 499, 517; 808
NW2d 301 (2010) (quotation marks and citation omitted). For this reason, a defendant cannot be
compelled to appear at trial wearing “identifiable prison garb” before the jury. Id. at 517-518. In
this case, although defendant compares presentation of the photo to appearing at trial in prison
garb, defendant did not appear at trial in prison attire. More relevant to defendant’s arguments,
this Court has also recognized, however, that the needless presentation of an “unedited mug shot,”
which effectively places a defendant’s prior conviction before the jury, results in reversible
prejudice. People v Heller, 47 Mich. App. 408, 411; 209 NW2d 439 (1973).
In this case, although defendant characterizes the photo in question as a “mug shot,” it does
not contain any kind of police identification number, arrest information, height markers, or other
“vestiges of the police department photographic techniques” suggestive of a mug shot, nor did the
prosecutor refer to the picture as a “mug shot” during trial. See id.; People v Travier, 39 Mich
App 398, 401; 197 NW2d 890 (1972); People v Heiss, 30 Mich. App. 126, 132; 186 NW2d 63
(1971). See also Futrell v Wyrick, 716 F2d 1207, 1208 (CA 8, 1983) (“The photographs were
never referred to as ‘mugshots’ and all police data was removed from them.”). Further, nothing in
the photo suggests that defendant had prior criminal convictions. See Heller, 47 Mich. App. at 411.
To the contrary, the photo was offered as representative of how defendant looked on March 17,
2017, the date of the current offense, and therefore, it does not give rise to the improper use of a
prior conviction as described in Heller.3 Cf. State v Vanzant, 814 S.W.2d 705, 707 (Mo App, 1991);
State v Clay, 213 NW2d 473, 480 (Iowa, 1973). In short, the photo did not implicate Heller’s
concern that an unedited mug shot amounts to improper use of prior convictions.
Additionally, although defendant asserts that the probative value of the picture was
outweighed by the danger of unfair prejudice because the picture shows him in prison garb, the
picture has been cropped such that the only visible portion of defendant’s clothing is the orange
collar of his shirt. There are no visible numbers on his clothing, and it is not apparent that he is
wearing a prison “jumpsuit” as he asserts on appeal. To raise any kind of due-process concern,
clothing must be “distinctive” and “identifiable” prison attire. Estelle v Williams, 425 U.S. 501,
504-505; 96 S. Ct. 1691; 48 L. Ed. 2d 126 (1976). Without more, the orange collar in defendant’s
photo does not meet this standard. Further, even assuming that the orange collar visible in the
photo would be perceived as “prison garb,” the prejudice caused by brief references to the photo
3
The jury was already aware by virtue of the fact that defendant was on trial that he had been
arrested for the current offense. See Rose, 289 Mich. App. at 517 (“[J]urors are understood to be
quite aware that the defendant appearing before them did not arrive there by choice or
happenstance[.]”) (quotation marks and citation omitted). “No prejudice can result from seeing
that which is already known,” Estelle v Williams, 425 U.S. 501, 507; 96 S. Ct. 1691; 48 L. Ed. 2d 126
(1976) (quotation marks and citation omitted).
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for identification purposes simply does not compare to the prejudice inherent in wearing prison
garb during trial, which has been characterized as a “continuing influence throughout the trial” and
which creates the risk that the “constant reminder of the accused’s condition implicit in such
distinctive, identifiable attire may affect a juror’s judgment.” See id. (emphasis added). The
photo—depicting, at most, an orange collar—was not unfairly prejudicial when briefly used for
identification purposes, and its introduction did not deprive defendant of due process.
Because defendant’s challenges to his photo lack merit, it also follows that defense counsel
did not perform unreasonably by failing to offer a meritless objection to the photo. See Putman,
309 Mich. App. at 245. Moreover, with regard to prejudice, as discussed, the prejudice from the
photo was relatively minimal, and in any event, defendant cannot plausibly claim that he was
prejudiced by the possibility that the photo would cause the jury to view defendant as a criminal
when defendant freely acknowledged his criminal history at trial by, for example, testifying that
he owed Alan money because Alan paid his bond. On this record, defendant has not shown that
he was denied the effective assistance of counsel. See Jackson, 292 Mich. App. at 600-601.
II. PROSECUTORIAL MISCONDUCT
In his appellate brief and in a Standard 4 brief, defendant maintains that the prosecutor
denied him a fair trial by (1) misstating evidence, (2) appealing to the jurors’ sympathies,
(3) vouching for witnesses, and (4) expressing a personal belief about defendant’s credibility.
Alternatively, defendant contends that defense counsel provided ineffective assistance by failing
to object to the prosecutor’s remarks. These arguments lack merit.
Defendant’s claim of prosecutorial misconduct is unpreserved and reviewed for plain error
affecting substantial rights. See People v McLaughlin, 258 Mich. App. 635, 645; 672 NW2d 860
(2003). “To avoid forfeiture of review of this issue under the plain error rule, the defendant must
demonstrate that: (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the
plain error affected the defendant’s substantial rights.” Id. Reversal is not required “where a
curative instruction could have alleviated any prejudicial effect.” People v Callon, 256 Mich. App.
312, 329-330; 662 NW2d 501 (2003).
“A prosecutor has committed misconduct if the prosecutor abandoned his or her
responsibility to seek justice and, in doing so, denied the defendant a fair and impartial trial.”
People v Lane, 308 Mich. App. 38, 62; 862 NW2d 446 (2014). “When reviewing a claim of
prosecutorial misconduct, this Court must examine the pertinent portion of the record and evaluate
a prosecutor’s remarks in context.” Callon, 256 Mich. App. at 330. “Prosecutors are typically
afforded great latitude regarding their arguments and conduct at trial. They are generally free to
argue the evidence and all reasonable inferences from the evidence as it relates to their theory of
the case.” People v Unger, 278 Mich. App. 210, 236; 749 NW2d 272 (2008) (citations omitted).
However, a prosecutor may not make factual statements to the jury that are not supported
by the evidence. People v Dobek, 274 Mich. App. 58, 66; 732 NW2d 546 (2007). And “[a]
prosecutor may not appeal to the jury to sympathize with the victim.” Unger, 278 Mich. App. at
237. Further, a prosecutor may not vouch for the credibility of a witness or suggest “some special
knowledge” about whether a witness is testifying truthfully, but he or she may “argue from the
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facts that a witness is credible or that the defendant or another witness is not worthy of belief.”
People v Howard, 226 Mich. App. 528, 548; 575 NW2d 16 (1997).
On appeal, defendant first argues that the prosecutor misrepresented the facts by repeatedly
asserting during closing arguments that defendant “stabbed” Alan 11 times. The medical
testimony at trial was that Alan was stabbed four times: three times in the abdomen and once in
the neck. However, the medical examiner also testified that Alan had a total of 11 wounds,
including additional wounds to Alan’s chest, hand, thumb, arm, behind his ear, and two cuts to his
neck. Indeed, the medical examiner testified that 11 was a “conservative” estimate of Alan’s total
number of wounds and that all the wounds were consistent with being inflicted by a knife. Given
the medical testimony that Alan had at least 11 wounds consistent with a knife, the prosecutor’s
remarks overall were not a misrepresentation of the facts to the extent the prosecutor mentioned
11 “sharp blows” or 11 “blows” with a knife. Indeed, while defendant quotes select passages from
the prosecutor’s remarks, elsewhere the prosecutor more specifically acknowledged the different
nature of the wounds, noting for example the “plunging” wound to Alan’s neck and the multiple
“deep” wounds to his stomach as compared to a defensive “cut” to his arm and the “marks” across
his neck indicating that defendant tried to “slice” Alan’s neck. The prosecutor also clarified that
there were “eleven stab wounds, four that punctured through his body.” (Emphasis added.) As a
whole, the prosecutor’s remarks fairly and accurately acknowledged the different nature of the
wounds, and defendant was not denied a fair trial.
Moreover, even if the prosecutor erred at isolated points by stating that Alan was “stabbed”
11 times, defendant is not entitled to relief on appeal when defendant failed to object and a curative
instruction could have alleviated any prejudicial effect. See Callon, 256 Mich. App. at 329-330.
Indeed, the jury was instructed that the lawyers’ statements were not evidence and to “only accept
things the lawyers say that are supported by the evidence or your own common sense and general
knowledge.” Jurors are presumed to follow their instructions. Unger, 278 Mich. App. at 235. And
the instruction given ensured that the jury would assess the accuracy of the prosecutor’s statements
against the evidence. Defendant has not shown plain error affecting his substantial rights. See
McLaughlin, 258 Mich. App. at 645.
Defendant also has not shown that defense counsel provided ineffective assistance by
failing to object to references to Alan being “stabbed” 11 times. Had counsel objected, “[a]t best,
trial counsel might have obtained a direction to the prosecutor to rephrase [her] summary, or a
charge that the lawyer’s arguments were not evidence.” People v Reed, 449 Mich. 375, 400; 535
NW2d 496 (1995). However, an objection leading to rephrasing by the prosecutor also could have
prompted additional, more detailed discussion from the prosecutor about the nature of Alan’s 11
wounds. And, when Alan in fact had at least 11 wounds consistent with a knife, a pedantic
objection to the use of the word “stab” may have struck the jury as a petty interruption and an
indication that defense counsel simply did not want them to hear the prosecutor’s analysis of the
evidence. See id. Defense counsel’s decision not to object was a matter of strategy, see id., and
this decision did not prejudice defendant when the jury was in fact instructed that the lawyers’
statements were not evidence.
Next, defendant contends that the prosecutor misrepresented the evidence by stating that
defendant did not testify that he feared for his life. More fully, during rebuttal, the prosecutor
stated:
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When the Defendant testified, he didn’t say, “I was afraid for my life.” He
said, “I was stuck in the bathroom and I just wanted to get out.” Self-defense with
a deadly force is not justified if you just want to get out of a room.
Defendant points to these assertions on appeal and contends that the prosecutor mispresented the
facts. Initially, we note that, during his testimony, defendant repeatedly mentioned having no “way
out” of the bathroom, and therefore, there was nothing improper in the prosecutor arguing that
killing the unarmed Alan was not justified just so that defendant could leave the room. However,
contrary to the first sentence of the prosecutor’s remarks, during his trial testimony, defendant also
clearly said that he was “in fear for [his] life.” The prosecutor was free to contest the credibility
of defendant’s testimony, but to the extent that the prosecutor asserted that defendant did not make
this statement at all, the prosecutor’s assertion was not supported by the facts. See Dobek, 274
Mich. App. at 66.
Nevertheless, this isolated misstatement by the prosecutor does warrant relief on appeal
when defendant failed to object and a curative instruction could have alleviated any prejudicial
effect. See Callon, 256 Mich. App. at 329-330. Indeed, as noted, the jury was instructed to decide
the case on the properly admitted evidence, that the lawyers’ statements were not evidence, and to
“only accept things the lawyers say that are supported by the evidence” or the jurors’ common
sense and general knowledge. Jurors are presumed to follow their instructions. Unger, 278 Mich
App at 235. And the instruction given ensured that the jury would assess the accuracy of the
prosecutor’s statement against the evidence and disregard the prosecutor’s statements not
supported by the evidence. Defendant has not shown plain error affecting his substantial rights.
See McLaughlin, 258 Mich. App. at 645.
Moreover, defense counsel did not provide ineffective assistance by failing to object. See
Reed, 449 Mich. at 400. Defendant’s claims of self-defense were thoroughly presented to the jury,
both in his testimony and during defense counsel’s closing arguments, and the jury was instructed
on self-defense. The jury was clearly aware of the self-defense issue to be decided, and the
prosecutor’s isolated misstatement about defendant’s testimony did not obviate the central
question before the jury. In this context, when the jury was clearly aware that defendant was
claiming self-defense, there would be minimal benefit to objecting to the prosecutor’s remark, and
at the same time, an objection might give the appearance that defense counsel did not want the
jury to hear the prosecutor’s analysis. See id. Indeed, at best, objecting would have resulted in “a
direction to the prosecutor to rephrase his summary, or a charge that the lawyer’s arguments were
not evidence.” See id. But, as noted, the jury was properly instructed that the lawyers’ statements
were not evidence, and jurors are presumed to follow their instructions. Unger, 278 Mich. App. at
235. On this record, defendant has not shown that counsel provided ineffective assistance by
failing to object to the prosecutor’s remark about defendant’s testimony.
Next, defendant also contends that the prosecutor impermissibly appealed to the jury to
sympathize with Alan and Ellen. However, when the prosecutor’s remarks are viewed as a whole
and in context, the prosecutor did not impermissibly appeal to the jurors’ sympathies. That is, the
prosecutor did not invite the “jurors to suspend their powers of judgment and decide the case on
the basis of sympathy or civic duty.” Lane, 308 Mich. App. at 66. Instead, in seeking “justice” for
Alan and Ellen, the prosecutor asked the jury to find defendant guilty because the evidence showed
that he was guilty. See id. The remarks, as a whole, were not plainly erroneous. And any potential
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prejudice was cured by the trial court’s instructions to the jurors that they must decide the case on
the basis of the evidence and the law and that they could not let “sympathy or prejudice” influence
their decision. See Unger, 278 Mich. App. at 235.
Moreover, even if some of the prosecutor’s remarks challenged by defendant as appeals to
jurors’ sympathies were better left unsaid, defense counsel did not provide ineffective assistance
by choosing not to object and not to draw further attention to the prosecutor’s remarks. See People
v Bahoda, 448 Mich. 261, 287 n 54; 531 NW2d 659 (1995). Defense counsel instead chose to
remind the jury during his own closing that sympathy was not a proper factor in the jury’s decision.
Counsel’s decision not unreasonable. Further, given the jury instructions to the effect that
sympathy could not influence the jury’s instructions, defendant cannot show he was prejudiced by
counsel’s failure to object. Defendant has not established the ineffective assistance of counsel.
Next, in his Standard 4 brief, defendant argues that the prosecutor impermissibly vouched
for Ellen and the neighbor who testified at trial by asserting that they had no reason to lie.
However, the prosecutor did not imply any special knowledge of the witnesses’ truthfulness;”
rather, the prosecutor permissibly commented on their credibility and argued that they had no
reason to lie.4 See People v Thomas, 260 Mich. App. 450, 455; 678 NW2d 631 (2004). This was
not error by the prosecutor, see id., and defense counsel was not ineffective for failing to offer a
futile objection. See Putman, 309 Mich. App. at 245.
In his Standard 4 brief, in connection with his assertion that the prosecutor engaged in
misconduct by discussing Ellen’s credibility, defendant also argues that that the prosecutor argued
facts not in evidence by suggesting that someone responding to the scene may have placed the
home phone back in its cradle in the house. In this regard, Ellen testified that defendant took the
home phone from her when he left the house, but she conceded that photos—taken hours later—
showed the phone in the house. Ellen could not explain this, but she suggested that maybe an
“officer” found it and brought it back inside. Commenting on this evidence during closing, the
prosecutor acknowledged that she did not “have an explanation for how [the phone] showed up in
the house,” but the prosecutor maintained that an explanation for how the phone returned to the
house was irrelevant if the jury believed Ellen’s testimony that defendant took the phone from her
when she attempted to call 911. Emphasizing that the photos were not taken until 3:45 a.m., the
prosecutor also suggested that someone—such as ambulance personnel or a lab tech—brought it
back inside. Although no one specifically testified about returning the phone to the house, the
prosecutor’s argument was a reasonable inference from Ellen’s testimony that defendant took the
phone when he left, the evidence that defendant returned to the house and was outside, the presence
4
Relating to the neighbor’s truthfulness, defendant offers a purported affidavit from his brother,
Adam Craigo, asserting that Ellen told Adam that it was really Alan who went outside and said
that he was going to “kill the mother fucker.” The affidavit is not part of our review because it is
not in the lower court record. See MCR 7.210(A)(1). Further, the document is not notarized,
meaning that it is not a valid “affidavit.” See Detroit Leasing Co v Detroit, 269 Mich. App. 233,
236; 713 NW2d 269 (2005). And, in any event, the document contains hearsay statements that are
wholly immaterial to defendant’s assertion that the prosecutor engaged in misconduct by arguing
that the neighbor had no reason to lie. The affidavit does not aid defendant’s position.
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of others at the scene, and the passage of time before the photos showing the phone back in the
house were taken. The prosecutor did not engage in misconduct by arguing the facts and
reasonable inferences therefrom in support of her theory of the case. See Unger, 278 Mich. App.
at 236. And defense counsel did not provide ineffective assistance by failing to offer a futile
objection. See Putman, 309 Mich. App. at 245.
Next, in his Standard 4 brief, defendant maintains that the prosecutor impermissibly
expressed a personal belief about defendant’s credibility by stating that he was “not a man to be
believed.” However, in context, the prosecutor did not offer a personal opinion or suggest special
knowledge of defendant’s veracity. See Howard, 226 Mich. App. at 548. To the contrary, the
prosecutor reminded the jury that it was “completely up to” the jury whether to believe defendant.
And the prosecutor permissibly argued from the facts that defendant was not worthy of belief given
his repeated lies and the changing nature of his story, including his “absurd” accusations against
Ellen, as well as the fact that his version of events was simply “ridiculous” in that it did not make
sense for Alan to give defendant a knife and then attack him for no reason whatsoever. The
prosecutor was entitled to comment on credibility and to argue that defendant was not worthy of
belief. See id. This was not error, and defense counsel did not provide ineffective assistance by
failing to offer a futile objection.5 See Putman, 309 Mich. App. at 245.
Finally, defendant asserts that the cumulative effect of the prosecutor’s misconduct denied
him a fair trial. “The cumulative effect of several errors can constitute sufficient prejudice to
warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative
effect of the errors must undermine the confidence in the reliability of the verdict before a new
trial is granted.” Dobek, 274 Mich. App. at 106. Even though the prosecutor made brief
misstatements of fact, and even if some of the prosecutor’s remarks about “justice” for Alan and
Ellen were better left unsaid, the cumulative effect of these relatively minor instances did not
deprive defendant of a fair trial, particularly considering the strong evidence of defendant’s guilt
and the exceedingly weak nature of his self-defense claim. See id. at 107. See also People v Seals,
285 Mich. App. 1, 25; 776 NW2d 314 (2009).
In sum, whether considered individually or cumulatively, the prosecutor’s comments did
not deprive defendant a fair trial, defense counsel did not provide ineffective assistance by failing
to object, and defendant is not entitled to relief on appeal.
5
Moreover, with regard to all of defendant’s Standard 4 claims of prosecutorial misconduct, we
note that the jury was instructed that they were to decide the case on the evidence presented, that
the lawyers’ statements were not evidence, that it was the jury’s “job and nobody else’s” to decide
the facts of the case, and that it was the jury’s “job” to decide which witnesses to believe. Jurors
are presumed to follow their instructions. Unger, 278 Mich. App. at 235. And, even assuming an
improper comment, these instructions were sufficient to cure such an error by the prosecutor. See
id. Defendant cannot show plain error, and he was not denied the effective assistance of counsel.
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III. HEARSAY
Next, defendant argues that the admission of hearsay from Ellen and her daughter, Laura
Marshall, constituted plain error and that defense counsel provided ineffective assistance by failing
to object. We disagree.
“ ’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 not admissible except as provided by the rules of evidence. MRE 802. In contrast,
statements offered for “purposes other than to prove the truth of the matter asserted,” such as “to
demonstrate the listener’s knowledge and motives,” are not hearsay and may be admitted if
relevant to an issue in the case. People v Eady, 409 Mich. 356, 361; 294 NW2d 202 (1980). For
example, when motive and premeditation are at issue, a murder victim’s statements to the
defendant are relevant, and they do not constitute hearsay, when offered “to show the effect they
had on” the defendant. People v Fisher, 449 Mich. 441, 450; 537 NW2d 577 (1995) (compiling
cases in which victims’ out-of-court statements were admitted to establish motive).
In this case, defendant asserts that Alan’s statements as recounted in Ellen’s testimony
constituted inadmissible hearsay and that defense counsel provided ineffective assistance by
failing to object. Relevant to defendant’s argument, Ellen testified:
[Defendant] [s]aid if he couldn’t have the bucket truck then he wanted the
motorcycle, and he—but he said, “Beins’ (sic) you don’t have the motorcycle
anymore,” and Alan says, “I do have the motorcycle. I still have it, it’s out in the
barn.” He says, “But you’re not getting it right now. It’s supposed to be given to
you when I’m dead and I’m not dead yet.”
Contrary to defendant’s argument, Alan’s statements as repeated by Ellen were not hearsay
because the statements were not offered for the truth of the matter asserted. See MRE 801(c).
Instead, as part of Ellen’s other testimony regarding defendant’s demands for the bucket truck and
a gun as well as Alan’s refusals, Alan’s statements to defendant regarding the motorcycle were
offered to show their effect on defendant. See Fisher, 449 Mich. at 450. That is, Alan’s statements
made defendant upset; the statements provided defendant’s reasons for going into the bedroom to
look for the titles to the items he wanted; and the statements ultimately provided defendant a
motive for being angry with Alan and wanting him dead. See id.; Eady, 409 Mich. at 361.
Admission of these relevant, nonhearsay statements to establish defendant’s motive did not
constitute plain error. See Fisher, 449 Mich. at 450; Eady, 409 Mich. at 361. And defense counsel
did not provide ineffective assistance by failing to make a meritless objection to this relevant and
admissible evidence. See Putman, 309 Mich. App. at 245.
On appeal, defendant also contends that Marshall should not have been allowed to testify
about Ellen’s statements to her at the scene. Specifically, Marshall testified about Ellen’s
description of events as follows:
She said that [defendant] had stabbed my dad, that he went there, he asked
for his kid’s birth certificate and the title and followed my dad into the bedroom.
She said that he had my dad in a headlock and he was hittin’ him and that she went
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to call 911 and then [defendant] ran up to her with a knife and grabbed the phone
and told her, “Don’t you call 911.” She said she’s never seen that look in his eyes,
it was really scary. She slammed the door shut and turned around and seen (sic)
my dad walking towards our—towards the bedroom from the kitchen and there was
blood goin’ all over the place. And she said, “I couldn’t stop it, I couldn’t stop it.”
Although the statement constitutes hearsay, defendant cannot show plain error in the
admission of the statements given the excited utterance exception to the hearsay rule set forth in
MRE 803(2). Under MRE 803(2), regardless of whether a declarant is available, a statement is
not excluded as hearsay provided that the statement is “[a] statement relating to a startling event
or condition made while the declarant was under the stress of excitement caused by the event or
condition.”
To come within the excited utterance exception to the hearsay rule, a statement
must meet three criteria: (1) it must arise out of a startling occasion; (2) it must be
made before there has been time to contrive and misrepresent; and (3) it must relate
to the circumstances of the startling occasion. [People v Straight, 430 Mich. 418,
424; 424 NW2d 257 (1988) (quotation marks and citation omitted).]
In this case, there can be no dispute that Ellen’s statements arose out of, and related to the
circumstances of, a startling occasion—namely, the violent death of her husband. Defendant
challenges the second criteria, asserting that Ellen’s statement did not constitute an excited
utterance because she had time to contrive and misrepresent the events. This argument lacks merit.
After Alan was stabbed, Ellen called 911 and held a towel to Alan’s neck, attempting to prevent
him from bleeding to death. When the first officer arrived, he found her “very upset and
distraught,” and still applying pressure to Alan’s wounds. Marshall arrived at the scene before
paramedics and found Ellen and the officer still in the midst of trying to save Alan’s life. When
the paramedics arrived soon after, Marshall then checked on Ellen, and found her “really shaken
up.” The paramedics sent Marshall and Ellen to a side bedroom until someone could talk to them,
and at some point, they went outside to talk to police. While still at the scene, and while Ellen was
“still shaking and cryin[g] and . . . in shock,” she told Marshall what happened.
On this record, there is absolutely no indication that Ellen had the time and capacity to
reflect and contrive a fabricated story. See id. “The focus of MRE 803(2), given a startling event,
is whether the declarant spoke while still under the stress caused by the startling event.” Id. at 425.
All indications in this case were that Ellen was still in shock—and still lacked the capacity to
fabricate—after witnessing violence in her home and watching Alan bleed to death before her eyes.
See id. See also People v Green, 313 Mich. App. 526, 537; 884 NW2d 838 (2015) (finding “little
time to contrive and misrepresent” when statements were made “within hours” of a startling event).
Under MRE 803(2), on the facts of this case, no clear or obvious error occurred in the admission
of Ellen’s statements to Marshall.6 Further, because the statements were admissible under an
6
On appeal, defendant also argues that the statements did not constitute present sense impressions
under MRE 803(1) because the statements were not substantially contemporaneous with the events
Ellen witnessed. This may be true but it is irrelevant. MRE 803(1) and MRE 803(2) are different
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exception to the hearsay rule, a hearsay objection by defense counsel would have been futile, and
defense counsel did not provide ineffective assistance by failing to make a meritless objection.
Putman, 309 Mich. App. at 245. Defendant is not entitled to relief on appeal.
IV. INEFFECTIVE ASSISTANCE
In his Standard 4 brief, defendant next argues that defense counsel provided ineffective
assistance (1) by failing to investigate and interview defendant’s girlfriend, Jessica Hill, and his
brother, Adam Craigo, as potential witnesses, and (2) by failing to investigate Alan’s violent
nature.
“Effective assistance of counsel is presumed, and a defendant bears a heavy burden of
proving otherwise.” Putman, 309 Mich. App. at 248. Defendant must also establish the factual
predicate for his claim. Id. “Trial counsel is responsible for preparing, investigating, and
presenting all substantial defenses.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68
(2009). At the same time, decisions regarding what witnesses to call and what evidence to present
are presumed to be matters of trial strategy, and this Courts will not second-guess counsel on
matters of trial strategy. Putman, 309 Mich. App. at 248.
In this case, defendant argues that defense counsel provided ineffective assistance by
failing to interview Hill and Adam, and by failing to use their testimony at trial to impeach
prosecution witnesses, to establish that defendant did not have a knife with him when he went to
his parents’ home, and to show Alan’s violent nature by offering Hill’s testimony that he
previously assaulted her. However, the lower court record contains no information to support
defendant’s assertions that (1) defense counsel failed to interview these witnesses or that (2) Hill
or Adam would have offered testimony favorable to the defense. Absent such evidence in the
record, defendant cannot establish the factual predicate for his claims, he has not overcome the
presumption that counsel’s decisions regarding what witnesses to call and evidence to present were
a matter of trial strategy, and he has not shown a reasonable probability that failure to call Adam
and Hill as witnesses affected the outcome of the proceedings.7 See id. at 240; People v Ackerman,
257 Mich. App. 434, 455; 669 NW2d 818 (2003).
exceptions, and “the period of acceptable time will frequently be considerably longer under 803(2)
than is acceptable under 803(1).” Straight, 430 Mich. at 425 (quotation marks and citation omitted).
In short, Ellen’s statements may not have been admissible under MRE 803(1), but they were
admissible under MRE 803(2).
7
In connection with his arguments relating to Hill and Adam, defendant points to materials outside
the record in an attempt to support his contentions regarding their potential testimony.
Specifically, he attaches an “affidavit” from Adam, stating that Adam heard defendant complain
about leaving his knife at his parents’ home. However, this affidavit does not aid defendant’s
position because (1) it is not part of our review, see MCR 7.210(A)(1); (2) it is not notarized,
meaning that it is not actually a valid “affidavit,” see Detroit Leasing Co, 269 Mich. App. at 236;
(3) at most, the document contains hearsay statements and defendant has not identified an
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Aside from Hill and Adam, defendant asserts that defense counsel failed to investigate, and
to introduce a police report at trial, relating to a previous incident during which Alan allegedly
attacked a man named Davey Overholt. In actuality, defense counsel did in fact question defendant
at trial about the incident with Overholt, belying defendant’s claim that defense counsel failed to
investigate the matter. Although defendant claims on appeal that defense counsel also should have
introduced a police report, the police report is not part of the lower court record, see MCR
7.210(A)(1); and defendant has not even attempted to provide it on appeal. Accordingly, there is
simply no support for defendant’s assertion that there is a police reporting relating to Overholt that
contained information beneficial to defendant. In any event, police reports are generally
inadmissible hearsay, In re Forfeiture of a Quantity of Marijuana, 291 Mich. App. 243, 254; 805
NW2d 217 (2011), and defendant makes no attempt to identify an exception to the hearsay rule or
to lay a foundation for the admission of the report. In these circumstances, defendant cannot show
that counsel provided ineffective assistance relating to the incident between Overholt and Alan or
in failing to seek the introduction of a police report. See Putman, 309 Mich. App. at 240; Ackerman,
257 Mich. App. at 455. Defendant’s ineffective assistance claims lack merit.
V. SUFFICIENCY OF THE EVIDENCE
Finally, in his Standard 4 brief, defendant contends that the prosecutor presented
insufficient evidence to support his conviction of first-degree premeditated murder. According to
defendant, the evidence shows that he acted in self-defense or, at most, in the heat of passion.
We review de novo a challenge to the sufficiency of the evidence, viewing the evidence in
a light most favorable to the prosecutor to determine if a rational trier of fact could have found that
the essential elements of the crime were proven beyond a reasonable doubt. People v Cline, 276
Mich. App. 634, 642; 741 NW2d 563 (2007). “Circumstantial evidence and reasonable inferences
that arise from such evidence can constitute satisfactory proof of the elements of the crime.”
People v Williams, 268 Mich. App. 416, 419; 707 NW2d 624 (2005). “All conflicts in the evidence
must be resolved in favor of the prosecution,” and “[t]his Court will not interfere with the trier of
fact’s role of determining the weight of the evidence or the credibility of witnesses.” Id.
“The elements of first-degree murder are (1) the intentional killing of a human (2) with
premeditation and deliberation.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627
(2010). In this case defendant concedes that he killed Alan, but he contends that the evidence did
not support his conviction of first-degree murder because he acted in self-defense. The killing of
exception to the hearsay rule that would allow for the introduction of the hearsay recounted by
Adam, see MRE 802; and (4) the document contains no indication that defense counsel failed to
investigate or interview Adam before trial. With regard to Hill, there is absolutely no basis for
defendant’s assertion that she could testify that Alan assaulted her. At most, in support of his
arguments related to Hill, defendant contends that there is a police report in which Hill is reported
as saying that she did not see defendant with a knife. But again, the police report is not part of this
Court’s review. See MCR 7.210(A)(1). And, in any event, defendant has not provided this Court
with the police report in question. The fact thus remains that defendant has not established that
defense counsel provided ineffective assistance. See Putman, 309 Mich. App. at 240.
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another person in self-defense is justifiable homicide “if the defendant honestly and reasonably
believes his life is in imminent danger or that there is a threat of serious bodily harm and that it is
necessary to exercise deadly force to prevent such harm to himself.” Dupree, 486 Mich. at 707
(quotation marks and citation omitted). “Once a defendant raises the issue of self-defense and
satisfies the initial burden of producing some evidence from which a jury could conclude that the
elements necessary to establish a prima facie defense of self-defense exist, the prosecution must
exclude the possibility of self-defense beyond a reasonable doubt.” People v Stevens, 306 Mich
App 620, 630; 858 NW2d 98 (2014) (quotation marks and citation omitted).
In this case, the prosecutor presented sufficient evidence to prove first-degree murder and
to disprove defendant’s self-defense claim beyond a reasonable doubt. Viewed in a light most
favorable to the prosecution, the evidence showed that defendant told a friend that he was going
to get some money together and then he went to his parents’ home and demanded items he could
sell, such as a bucket truck, a gun, and a motorcycle. When Alan refused defendant’s demands,
defendant became upset, and he went to his parents’ bedroom where documents, including titles
for property, were kept. Alan followed defendant and told defendant to leave the room. Ellen,
still sitting at the kitchen table, heard a scuffle. When she went to look, defendant had an unarmed
Alan in a headlock. Alan tried to get out of the headlock, but defendant “smacked” him in the face
and “put him back down.” Ellen went to call 911 and a few moments later, before Ellen managed
to make the call, defendant approached her with a knife and told her not to call the police.
Defendant left, and Ellen then saw Alan bleeding profusely. Alan sustained three stab wounds to
his abdominal area, a fourth deep stab wound to his neck, and numerous other cuts and defensive
marks. In comparison, defendant was entirely uninjured. The murder weapon was a knife made
by defendant, which he habitually carried and which a friend saw in defendant’s possession before
he went to his parents’ house. Further, shortly before the killing, a neighbor overhead defendant
say “that he was going to kill the mother fucker.”
It is true that defendant testified at trial, offering a different version of events in which he
claimed that he feared for his life because Alan—an unarmed and aging man with numerous health
conditions—attacked defendant for no discernable reason and pushed him into the bathroom.
According to defendant’s testimony, Alan retrieved defendant’s knife from a safe in the bedroom,
and Alan handed the knife to defendant. Then, for no apparent reason, Alan grabbed defendant’s
right arm, which was holding the knife, and tried to push the knife toward defendant’s chest. In
contrast to Ellen’s version of events, defendant denied any argument with Alan, he denied placing
Alan in a headlock, and he denied telling Ellen not to call the police. In contrast to his friend’s
testimony and that of the neighbor, defendant denied bringing the knife with him to his parents’
home, he denied that he was looking for money, he denied using methamphetamine that day, and
he denied saying that he was going to kill anyone. In contrast to the evidence that Alan’s stab
wounds were at least four inches deep, defendant also testified that he simply “poked” Alan with
the knife. Further, defendant’s version of events was far from immutable. On the night of the
killing, defendant initially told Trooper Timothy Gean that he did not kill Alan; then he said that
he did kill Alan but that he acted in self-defense; he also told Trooper Gean that there was an
argument. When interviewed by Detective Fabian Suarez, defendant again claimed self-defense.
But then defendant wrote letters to Detective Suarez and Ellen, denying that he killed Alan and
naming Ellen as the perpetrator.
-16-
Despite the inconsistencies in his story and the evidence contradicting his claim of self-
defense, defendant argues on appeal that his version of events should be believed. But the
credibility of defendant’s testimony was a question for the jury. See Stevens, 306 Mich. App. at
630-631. And defendant’s specious self-defense claim—that Alan handed defendant a knife and
then attacked defendant for no reason at all—is reasonably rejected, particularly given the
changing nature of defendant’s story. Indeed, the only evidence that defendant feared for his life
was his own testimony that Alan attacked him for no reason, but there was ample evidence
contradicting defendant’s assertion that Alan was the initial aggressor and establishing that
defendant attacked Alan, placing him in a headlock and then stabbing him. Evincing
consciousness of guilt, and belying his claim that he did not intend to harm Alan, defendant then
fled the scene and attempted to prevent Ellen from calling 911. Moreover, even under defendant’s
version of events in which Alan supposedly initiated the confrontation, the jury could have easily
concluded that three deep stab wounds to the stomach, a deep stab wound to the neck, and assorted
other slashes and cuts were not reasonably necessary to defend against an attack from an unarmed
man almost twice defendant’s age who had a bad back and other serious health problems. See id.
at 631. Viewing the evidence in a light most favorable to the prosecutor, the prosecutor presented
more than sufficient evidence to disprove defendant’s claim of self-defense and to support
defendant’s first-degree murder conviction beyond a reasonable doubt. See id. at 630-631.
Similarly, to the extent defendant claims that the evidence only supports a finding of
manslaughter, this argument lacks merit because a reasonable jury could conclude that there was
no provocation to mitigate the killing from murder to manslaughter. See People v Tierney, 266
Mich. App. 687, 714-715; 703 NW2d 204 (2005). That is, defendant’s provocation argument also
appears to rest on the assertion that Alan was the initial aggressor. But as discussed, there was
ample evidence contradicting defendant’s claim that Alan attacked him and instead showing that
defendant initiated the confrontation and ultimately stabbed an unarmed man. Viewed in a light
most favorable to the prosecutor, the evidence supported defendant’s first-degree murder
conviction.
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Deborah A. Servitto
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