Opinion
351034
01-06-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DMARQUE DRIAUN DANSBY, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 16-040091-FH
Before: Markey, P.J., and Shapiro and Ronayne Krause, JJ.
Per Curiam.
Defendant appeals as of right his jury-trial convictions of first-degree home invasion, MCL 750.110a(2), domestic violence, MCL 750.81(2), and aggravated stalking, MCL 750.411i. The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent terms of 230 to 480 months' imprisonment for the home-invasion conviction, 55 to 120 months' imprisonment for the stalking conviction, and 93 days in jail (time served) for the domestic violence conviction. We affirm.
I. BACKGROUND
Defendant was convicted of stalking his former girlfriend, Ashley Zahn, between February 16 and May 13, 2016, and physically assaulting her after entering her home without permission, on the morning of May 13, 2016. Zahn and defendant had been intermittently involved in a long-term relationship and have a minor son together. Zahn and defendant lived together as recently as 2015, but Zahn moved into a separate residence with their son after an incident of domestic violence. The prosecution presented evidence that defendant engaged in a series of different acts of stalking against Zahn, including throwing a brick through her window and banging on the walls of her house, during the months before May 13. Zahn testified that after she refused defendant's request for entry on May 13, he forced his way inside, cracking the front door and damaging the screen, after which she and defendant argued. According to Zahn, when the argument escalated, defendant grabbed her neck and punched her in the face. Zahn told defendant to leave and then "maced him" with pepper spray. She testified that she ran toward the back door of her home, but defendant ran after her and continued to physically assault her. Ultimately, defendant fled the house, and Zahn's next-door neighbor, Angela Craig, called 911. Craig testified that she saw defendant run out of the house and through the side yard. Burton Police Department Officer Sean Nelson responded to the call and testified that when he arrived Zahn had a bloody nose and there was blood on her clothing. Nelson said that Zahn appeared upset and looked like a person who had just been assaulted. He observed that the door jamb was broken.
At trial, defendant testified on his own behalf and admitted visiting Zahn and his son on May 12, but denied being at Zahn's residence and assaulting her on May 13. Defendant asserted that he was being set up or framed by the police, Zahn and Zahn's neighbors, Craig and Murray Coon. The defense argued that Zahn, Craig and Coon were not credible witnesses and provided inconsistent testimony.
II. MRE 404(B)
Defendant first argues that he was denied a fair trial by the introduction of evidence that he had threatened Coon with a firearm on May 12, the day before the alleged assault against Zahn. Defendant contends that this evidence was inadmissible under MRE 404(b)(1). We disagree.
"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." People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). Defendant did not object to the challenged evidence at trial, leaving this evidentiary claim unpreserved. We therefore review this unpreserved claim for plain error affecting defendant's substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). "Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial." People v Jones, 297 Mich.App. 80, 83; 823 N.W.2d 312 (2012).
"MRE 404 governs the admissibility of other-acts evidence. The general rule under MRE 404(b) is that evidence of other crimes, wrongs, or acts is inadmissible to prove a propensity to commit such acts." People v Denson, 500 Mich. 385, 397; 920 N.W.2d 306 (2017). MRE 404(b) provides in part:
(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."[A]cts comprised by or directly evidencing the 'conduct at issue' [in a case] are not subject to scrutiny under MRE 404(b)." People v Jackson, 498 Mich. 246, 262; 869 N.W.2d 253 (2015).
The challenged evidence does not implicate MRE 404(b) as it is directly relevant to the aggravated stalking charge. The crime of stalking involves "a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested." MCL 750.411h(1)(d). See also People v Coones, 216 Mich.App. 721, 725; 550 N.W.2d 600 (1996).
The basis for the aggravated-stalking charge were acts that occurred between February 16 and the day of the assault, May 13, 2016. The challenged evidence relates to an incident on May 12, and, according to Zahn, was the reason she denied defendant entry to her home on May 13. Specifically, Zahn heard defendant arguing with her neighbors and heard reference to defendant having a gun, a statement confirmed by the neighbors' testimony. According to the testimony, after seeing the gun, Coon called the police at which time defendant entered Zahn's house through the front door, ran through the house, and went out the back door. The police arrived within two minutes and searched Zahn's house for a gun.
Given these facts, the evidence that defendant appeared at Zahn's residence on May 12 armed with a gun and acted in a threatening manner was part of the conduct at issue for the stalking charge. That is, the May 12 incident was relevant to whether the contact defendant initiated on May 13 was unwanted and whether a reasonable person would have felt threatened by defendant's presence on that day. Moreover, the evidence explains the reason why Zahn did not allow defendant inside her home on May 13 and was therefore also relevant to the home-invasion charge, which in this case required the prosecution to prove that defendant entered Zahn's home without permission. See MCL 750.110a(2). Defendant testified that he was not at Zahn's home at the time of the alleged assault, but the defense alternatively argued that defendant had permission to enter the home at that time. Thus, Zahn's reason for not allowing defendant into her home was relevant to the jury's determination of this disputed element, i.e., if the jury believed the testimony regarding the May 12 incident, it was more likely to conclude that defendant did not have permission to enter the home on May 13. See MRE 401. For these reasons, this evidence was directly relevant to the charged conduct at issue and therefore was not subject to the requirements of MRE 404(b).
Defendant has also failed to demonstrate that the evidence should have been excluded under MRE 403 because it was unfairly prejudicial. Under MRE 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. People v Cameron, 291 Mich.App. 599, 610; 806 N.W.2d 371 (2011). MRE 403 prohibits the admission of marginally probative evidence that will likely be given undue weight. People v Mills, 450 Mich. 61, 75; 537 N.W.2d 909 (1995).
As already discussed, the evidence was relevant to the stalking and home-invasion charges. Defendant argues that the evidence was unduly prejudicial because it portrayed him "as a violent and dangerous person." To the extent that the evidence may have had that effect, the evidence was more than marginally probative to the charged conduct and it did not inject considerations extraneous to a determination of defendant's guilt or innocence. Defendant also complains that the trial court permitted the evidence to be presented through witnesses who had a "history of lying and committing crimes of theft or dishonesty." However, it was province of the jury to assess the credibility of the witnesses. People v Lemmon, 456 Mich. 625, 637; 576 N.W.2d 129 (1998). Defendant has not established a plain error related to MRE 403.
Defendant alternatively argues that defense counsel was ineffective for failing to object to the evidence relating to the May 12 incident. "To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013) (citation omitted). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id.
Because defendant did not move for a new trial or an evidentiary hearing in the trial court, and because this Court denied his motion to remand, our review of defendant's ineffective-assistance claims is limited to mistakes apparent on the record. People v Abcumby-Blair, 335 Mich.App. 210, 227; N.W.2d (2020).
For the reasons discussed, the testimony regarding defendant's alleged actions on May 12 was relevant and admissible under MRE 401 and MRE 403, and because it involved the charged conduct at issue, it did not implicate MRE 404(b)(1). Therefore, defense counsel's failure to object to that testimony was not objectively unreasonable. Alternatively, trial counsel may have made a strategic decision not to object to the evidence because it was helpful to support the defense theory that Coon was not credible. Coon admitted that he signed two affidavits, one of which he authored, recanting his claim that he saw defendant at Zahn's residence with a gun on May 12. Coon also testified regarding other events, and defense counsel used the challenged evidence and other inconsistencies to argue that the jury should not find Coon's testimony credible. We generally defer to counsel on matters of trial strategy. People v Foster, 319 Mich.App. 365, 391; 901 N.W.2d 127 (2017). Thus, defendant has not established that defense counsel was ineffective for failing to object to this evidence.
III. OTHER ACTS OF DOMESTIC VIOLENCE
Next, defendant argues that the trial court abused its discretion by permitting the prosecution to present evidence of other acts of domestic violence committed by defendant against Zahn, which were not the basis for the charged offenses. Again, we disagree.
Defendant preserved this issue by objecting to the prosecutor's request to admit the challenged other-acts evidence at trial. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Thorpe, 504 Mich. at 251-252. "The decision to admit evidence is within the trial court's discretion and will not be disturbed unless that decision falls outside the range of principled outcomes." Id. at 252 (quotation marks and citation omitted).
MCL 768.27b(1) provides that "in a criminal action in which the defendant is accused of an offense involving domestic violence . . . evidence of the defendant's commission of other acts of domestic violence or sexual assault is admissible for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403." The purpose of allowing evidence of prior acts of domestic violence is to give a "complete picture" of the defendant's history, which will "shed light on the likelihood that a given crime was committed." People v Cameron, 291 Mich.App. 599, 610; 806 N.W.2d 371 (2011) (quotations marks and citation omitted).
In this case, the evidence that defendant committed other assaults against Zahn within the two years before the charged acts in 2016 was relevant to show defendant's character or propensity to engage in domestic violence against Zahn, as well as to rebut defendant's claims that he did not assault Zahn at her house on May 13. See People v Railer, 288 Mich.App. 213, 219-220; 792 N.W.2d 776 (2010) ("MCL 768.27b permits evidence of prior domestic violence in order to show a defendant's character or propensity to commit the same act."). Defendant does not dispute that the evidence of the prior acts falls within the scope of the statute, but argues that the evidence that he previously assaulted Zahn should have been excluded under MRE 403 because its minimal probative value was substantially outweighed by its prejudicial effect. Defendant specifically contends that the evidence was prejudicial because it portrayed him as a "serial abuser," i.e., it portrayed him as having exerted violence against Zahn on instances in the past. However, this argument merely demonstrates that the evidence was damaging for the same reasons that it was relevant, i.e., it showed defendant's propensity to commit the same act against Zahn, a proper basis under the statute. Further, the prior acts illustrated the nature of defendant and Zahn's relationship and assisted the jury in making its credibility determinations. See People v Meisner, 294 Mich.App. 438, 452; 812 N.W.2d 37 (2011). Defendant also suggests that the prior acts had minimal probative value, asserting that Zahn's allegations of domestic violence were unreliable. But some of the alleged prior acts were supported by 911 calls and police reports, and ultimately it was the province of the jury to assess the credibility of the witnesses. Lemmon, 456 Mich. at 637.
Moreover, in its final instructions, the trial court gave a cautionary instruction to the jury explaining the limited, permissible use of the evidence. Specifically, the trial court explained that the prosecution introduced acts of domestic violation for which defendant was not on trial and that the jury had to find that defendant actually committed those acts before considering them as evidence that he committed the charged offenses. Defendant has not presented any basis for overcoming the presumption that the jury followed these instructions. See People v Breidenbach, 489 Mich. 1, 13; 798 N.W.2d 738 (2011). For these reasons, the trial court did not abuse its discretion by determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
Defendant also contends that the cumulative effect of the alleged evidentiary errors previously discussed in this opinion requires reversal. However, because defendant has not identified any error, let alone several errors, there can be no cumulative effect of errors requiring reversal. See People v Dobek, 274 Mich.App. 58, 106; 732 N.W.2d 546 (2007).
IV. SCORING OF OFFENSE VARIABLE 4
Defendant also challenges his sentence. He first argues that he is entitled to resentencing because the trial court erroneously scored Offense Variable (OV) 4 of the sentencing guidelines. We affirm the trial court's scoring.
When reviewing a trial court's scoring decision, the court's "factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "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." Id.
OV 4 addresses psychological injury to a victim, MCL 777.34(1), and the trial court is required to assign 10 points for OV 4 if a "serious psychological injury requiring professional treatment occurred to a victim." MCL 777.34(1)(a). The statute does not require that the victim actually receive professional treatment in order to assess 10 points. MCL 777.34(2).
Defendant argues that there was insufficient evidence presented at trial to conclude that Zahn suffered a serious psychological injury. We agree; however, Zahn's minor child can also be considered a "victim" of defendant's criminal behavior for purposes of scoring OV 4. As the Supreme Court noted when discussing the term "victim" in the context of OV 3, a victim is "any person harmed by the criminal actions of the charged party." People v Laidler, 491 Mich. 339, 348; 817 N.W.2d 517 (2012).
It is undisputed that the parties' child lived in the residence with Zahn, and Zahn testified at trial that the child was inside the house when the home invasion and domestic violence crimes were committed on May 13, 2016. Zahn testified that after defendant forced his way into the house, she and defendant argued while Zahn was holding their child. The argument escalated; defendant grabbed Zahn's neck and punched her in the face; Zahn fell back onto the couch, and their child "landed on the couch." The child remained on the couch as Zahn and defendant continued to argue; Zahn "maced" defendant, and defendant chased Zahn and struck her again before fleeing the house. Thus, like Zahn, the child was exposed to defendant's destructive or injurious actions. Further, a preponderance of the evidence supports that the child suffered a serious psychological injury. The child's grandmother, Selena Williams, submitted a letter to the court in which she recounted the child's constant fear of defendant, and that defendant's "behavior of banging on doors and breaking out a window in the middle of the night," which were acts related to defendant's aggravated stalking conviction, caused the child to be "very afraid of doors, windows, and sleeping alone in his own bedroom." As a result, the child has "night terrors" and "wakes up in the middle of the night crying out in fear of his own father." This evidence adequately supports the trial court's 10-point score for OV 4. See People v Earl, 297 Mich.App. 104, 109-110; 822 N.W.2d 271 (2012) (holding that OV 4 was properly scored where the victim impact statement contained details about the complainant's weeks of sleeplessness, inability to close her eyes without reliving the robbery and constant fear at work).
V. VICTIM-IMPACT STATEMENT
Defendant also argues that his right to due process was violated by the trial court's reliance at sentencing on a statement made by Zahn's mother, a nonvictim.
Defendant filed a motion to remand in this Court to raise sentencing-related claims, including his challenge to the trial court's reliance on Zahn's mother's statements, i.e., inaccurate information. Therefore, this issue is preserved. MCR 6.429(C). This issue presents a question of law, which is reviewed de novo. Hardy, 494 Mich. at 438.
The Crime Victim's Rights Act (CVRA), MCL 780.751 et seq., allows "the victim" of a crime to submit a written impact statement for purposes of the presentence investigation report and to make an oral impact statement at sentencing. MCL 780.764; MCL 780.765. "Victim" is generally defined as "[a]n individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime . . . ." MCL 780.752(1)(m)(i). Zahn declined to make a statement at sentencing and asked that a letter that she had sent to the trial court not be considered. If Zahn were physically or emotionally unable to exercise her rights under the CVRA, she could have designated her mother, Williams, to act in her place, see MCL 780.752(2), but there is no evidence that a designation occurred. As discussed, however, Zahn's child was also properly considered a victim of defendant's crimes, and Williams's statement read at sentencing largely concerned the young child, which was arguably permissible under MCL 780.752(m)(v) because the child could not "meaningfully understand or participate in the legal process . . . ." In any event, considering the degree to which Williams's statement concerned the child, any error in the sentencing procedure does not warrant vacating the judgment of sentence. See MCL 769.26.
The prosecution relies on the holding in People v Alpert, 207 Mich.App. 73, 74; 523 N.W.2d 825 (1994), that a non-victim could make a statement at sentencing because "a sentencing court is afforded broad discretion in the sources and types of information to be considered when imposing a sentence, including relevant information regarding the defendant's life and characteristics." See also People v Waclawski, 286 Mich.App. 634, 691-692; 780 N.W.2d 321 (2009). However, we are bound by the unambiguous language of the CVRA limiting who may make statements and at sentencing and may not read language into the statute. See Michigan Ass'n of Home Builders v City of Troy, 504 Mich. 204, 212; 934 N.W.2d 713 (2019). Further, contrary to the prosecution's brief, Williams did not give "testimony" at sentencing; her written statement was read into the record and she was not subject to cross-examination.
VI. DEFENDANT'S STANDARD 4 BRIEF
Defendant raises additional issues in a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
A. DESTRUCTION OF EVIDENCE
Defendant first argues that he was denied his right to due process when the responding police officer, Sean Nelson, either failed to collect or directed Zahn to destroy the clothing she was wearing on May 13, which defendant contends violated Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963). We disagree.
Generally, due process claims are reviewed de novo by this Court. People v Schumacher, 276 Mich.App. 165, 176; 740 N.W.2d 534 (2007). The trial court's decision regarding whether a case should be dismissed because of the destruction of evidence is reviewed for an abuse of discretion. See People v Jones, 301 Mich.App. 566, 581; 837 N.W.2d 16 (2013).
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87 . "In order to warrant reversal on the claimed due process violation, a defendant must prove that the missing evidence was exculpatory or that law enforcement acted in bad faith." People v Hanks, 276 Mich.App. 91, 95; 740 N.W.2d 530 (2007). A claim that the police deliberately destroyed evidence must be supported by evidence, and a defendant's blanket assertion is insufficient to substantiate the claim. People v Johnson, 197 Mich.App. 362, 365-366; 494 N.W.2d 873 (1992).
Defendant has failed to show that the evidence in question was exculpatory, or that the police acted in bad faith. Defendant argues that Zahn's clothing should have been preserved to determine whether the substance on the clothing was actually blood or instead some synthetic material used to imitate blood, or whether it was blood that belonged to a third party. However, there was no evidence that a third party, other than Zahn's minor child, was in the house at the time of the assault. Officer Sean Nelson testified that he observed blood on Zahn's clothing, which appeared to originate from her nose, and took photographs of the clothing, which were provided to the defense and admitted into evidence at trial. The photographs depicted apparent blood on Zahn's clothing. In addition, Nelson testified that it was not standard procedure to collect clothing in domestic violence complaints, as opposed to other types of cases such as sexual assault complaints. Further, as the trial court observed, there was evidence that the clothing was contaminated with urine and feces. Nelson smelled an odor of feces emanating from Zahn, who had testified that she had defecated on herself during the assault. Thus, the record demonstrates that Nelson was following standard procedure, saw no evidentiary need to collect the clothing, and took photographs of the soiled clothing to preserve a record of its appearance. Under the circumstances, we find no basis for concluding that the police acted in bad faith. Moreover, defendant has not demonstrated that the evidence was exculpatory; his assertion that the clothing could have exonerated him is entirely speculative. And there is no factual support for defendant's claim that the evidence, had it been preserved and produced, would have assisted defendant's defense. Therefore, we reject this claim of error.
B. EFFECTIVE ASSISTANCE OF COUNSEL
1. CONFLICT OF INTEREST
Defendant raises several claims of ineffective assistance of counsel. First, the record does not support defendant's claim that defense counsel, who was defendant's sixth appointed attorney, was ineffective when questioning Officer Nelson because of a conflict of interest arising from counsel's former status as a law enforcement officer.
A lawyer acting with a conflict of interest denies a defendant the effective assistance of counsel by breaching "the duty of loyalty, perhaps the most basic of counsel's duties." People v Smith, 456 Mich. 543, 557; 581 N.W.2d 654 (1998) (citation omitted). The Michigan Rules of Professional Conduct provide that an attorney "shall not represent a client" if "the representation of that client will be directly adverse to another client" or "if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests," except in certain circumstances. MRPC 1.7. In order to establish that defense counsel provided ineffective assistance on the basis of a conflict of interest, defendant must show that an actual conflict of interest adversely impacted his attorney's performance. Smith, 456 Mich. at 557. A conflict of interest is "never presumed or implied." People v Lafay, 182 Mich.App. 528, 530; 452 N.W.2d 852 (1990).
The record does not reflect a conflict of interest that negatively affected defense counsel's performance. First, defendant has not offered any evidence that defense counsel was a former law enforcement officer. Assuming that to be the case, however, there is nothing prohibiting a former law enforcement officer from being a criminal defense attorney, and defendant has not shown anything about counsel's former employment that gave rise to an actual conflict of interest in this case, or that counsel did not fulfill his responsibilities to defendant because of counsel's former employment. Contrary to defendant's argument, defense counsel did not refrain from cross-examining Nelson or challenging his investigation at the scene. Indeed, in opening statement, defense counsel stated: "You're going to hear about shoty [sic] police work, a terrible on the scene investigation." At trial, counsel questioned Nelson about what occurred at the scene and what Zahn reported to him, and Nelson admitted that he did not recall several events from that day. After defendant expressed a complaint about defense counsel not "get[ting] [his] defense theory out," the trial court held a bench conference, instructed defendant on the proper way to confer with counsel about his requests, and allowed defense counsel to continue his cross-examination of Nelson. Defense counsel then further questioned Nelson, apparently at defendant's direction.
In sum, defendant has not provided any factual support for his claim that defense counsel's former occupation as a law enforcement officer either caused him to be biased against defendant or affected his cross-examination of Nelson, and defendant's theory that Nelson somehow was conspiring with Zahn, Coon, and Craig has no basis in the record. Absent evidence to support his assertion, the alleged conflict between defendant's and defense counsel's interests is not indicative of an actual conflict. Likewise, this unsubstantiated conflict does not demonstrate that defense counsel made a choice not to elicit evidence helpful to defendant because of his status as a former law enforcement officer. Thus, defendant is not entitled to relief on the basis on this conflict-of-interest claim.
2. FAILURE TO INVESTIGATE "THE NEIGHBOR" AND RELATED PHONE RECORDS
Defendant also faults defense counsel for failing to investigate and determine the identity of a neighbor who allegedly called Craig and initially informed her that defendant was at Zahn's residence on May 13, and for not obtaining related phone records. Craig testified at trial that she did not know the name of the neighbor who called her on May 13.
Defendant makes much of defense counsel's alleged failure to investigate and discover the identity of the neighbor and determine whether the neighbor actually contacted Craig on May 13, 2016. Defendant raised this issue on numerous occasions before trial. At a hearing on June 11, 2018, when defendant was represented by his fifth attorney, counsel indicated that he had subpoenaed the phone records related to the neighbor who contacted Craig, as well as other phone records. At a later motion hearing, the trial court placed on the record that it had received phone records in response to subpoenas. Thus, contrary to what defendant asserts, the record indicates that the defense subpoenaed phone records.
Further, it is unclear from the record what favorable information the phone records provided. Defendant speculates that Craig was not actually contacted by a neighbor, but he has not made an offer of proof to support this claim. More significantly, defendant has failed to explain why this detail-whether a neighbor informed Craig that defendant was at Zahn's residence- would have made a difference in the outcome of the trial, particularly given that Craig testified that she personally saw defendant leaving Zahn's residence after she made the initial 911 call. Moreover, the jury was well aware that the neighbor, who allegedly called Craig, was never identified and that Craig did not know her identity. In this case, the record does not support defendant's claim that defense counsel failed to investigate the neighbor, or that failure to learn the neighbor's identity affected the outcome at trial.
3. FAILURE TO CALL A BLOOD-SPLATTER EXPERT
Defendant criticizes defense counsel for not retaining and calling a blood-splatter expert at trial. The record indicates that defendant mentioned a blood-splatter expert at a pretrial hearing, and thus defense counsel was apparently aware of defendant's desire for one. Decisions on whether to call witnesses are matters of trial strategy, to which we generally defer. See People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009).
In this case, defense counsel could have chosen not to call a blood-splatter expert for various reasons, including that the expert's testimony would have been unsupportive or even harmful to the defense. Although defendant asserts that a blood-splatter analysis would have been exculpatory, he has not provided an expert witness affidavit showing what information a blood-splatter analysis could have provided, or identified any other evidence of record suggesting that a blood-splatter analysis could have been helpful. Thus, he has not demonstrated that defense counsel's failure to call an expert was objectively unreasonable, or shown that there is a reasonable probability that the outcome of trial would have been different if an expert had been called. Accordingly, this claim is without merit.
4. FAILURE TO INVESTIGATE ZAHN'S WORK RECORDS AND RELATED WITNESSES
Defendant also faults defense counsel for failing to investigate Zahn's employment records and whether any time she missed from work was related to her being injured on May 13. As defendant acknowledges, the defense subpoenaed Zahn's employment payroll records. At trial, defense counsel used those records to impeach Zahn's prior testimony that she had missed work for an entire week because of injuries she received on May 13. Zahn's employment records revealed that she worked 72 hours of a normal 80-hour schedule for the period surrounding May 13. Thus, she missed one day, not one week as she had claimed. Although defendant now asserts that defense counsel should have taken additional steps to further impeach Zahn, e.g., finding a witness to testify about why Zahn missed work and if she was authorized to do so, it was objectively reasonable for counsel to rely on the employment records to refute Zahn's claim about how much work she missed. Further, defendant has not provided any witness affidavits, or other offer of proof, establishing the existence of the additional evidence he believes counsel should have provided, or demonstrating that such evidence would have been favorable to the defense. Absent such a showing, defendant has not established that he was prejudiced by defense counsel's decision to not further investigate the reason Zahn missed one or two days of work, particularly after effectively impeaching her testimony that defendant's actions caused her to miss work for an entire week. Thus, the record does not support this claim of ineffective assistance of counsel.
5. FAILURE TO CALL ALIBI WITNESSES
Defendant also asserts that defense counsel was ineffective for failing to call two alibi witnesses, Jequaleon Cleaver and Jerell Clement, who defendant claims would have testified that he was "somewhere different and couldn't have been at the crime scene." Cleaver and Clement were listed on defendant's witness list, so it is apparent that counsel was aware of the witnesses. Although defendant now asserts that defense counsel should have called these witnesses, defendant has not provided any witness affidavits or identified any other evidence of record showing the testimony that they would have provided if called. Absent such a showing, defendant has not established that he was prejudiced by defense counsel's failure to call the witnesses at trial.
6. COUNSEL'S PREPAREDNESS FOR TRIAL
Lastly, defendant makes overlapping or related claims that defense counsel was unprepared to confront and impeach witnesses, argue at trial, and to object to inflammatory testimony. Decisions regarding what questions to ask, what evidence to present, and what arguments to make are matters of trial strategy. People v Rockey, 237 Mich.App. 74, 76; 601 N.W.2d 887 (1999). "When asserting ineffective assistance of counsel premised on counsel's unpreparedness, a defendant must demonstrate prejudice resulting from the lack of preparation." People v Bosca, 310 Mich.App. 1, 37; 871 N.W.2d 307 (2015).
In this case, the record does not support defendant's claim that defense counsel failed to engage in proper pretrial investigation. On the contrary, the record indicates that after being appointed as defendant's sixth attorney, defense counsel discussed several matters with the trial court and the prosecutor to get up to speed on the case, and requested adjournments to ensure that all records had been received and that he had time to review the file, witnesses, and defenses. The mere fact that defense counsel did not ask certain questions at trial that defendant now claims counsel should have asked does not demonstrate that defense counsel was unprepared for trial, or that he did not present a competent defense on defendant's behalf.
Further, defendant does not persuasively argue that asking additional questions of Zahn, Craig, or Coon would have changed the outcome of the case. Indeed, the record indicates that defense counsel cross-examined Zahn at length, and impeached her with prior inconsistent statements, photographs, and her employment pay stubs. Counsel also elicited on cross-examination, and argued during closing argument, that although Zahn claimed that it was defendant who threw a brick through her window, she did not actually see him do it, and did not actually see defendant knocking on the side of her house during the night. Counsel attacked Zahn's credibility and argued that a comparison of her testimony to the photographs of the door, the responding officer's description of her clothing, and her pay stubs, demonstrated that she was not a reliable witness. Defense counsel cross-examined Coon about whether he was home on the morning of May 13, and what he saw or heard, and cross-examined Craig about the neighbor who allegedly called or texted her that defendant was at the house on May 13. Counsel emphasized that both Zahn and Craig testified that the house was torn up on May 13, but the responding officer's testimony contradicted those statements because the officer saw no signs of a struggle and did not testify that he smelled any pepper spray in Zahn's small residence. Counsel further argued that Craig was completely unreliable, emphasizing, for example, that she told the 911 operator that Coon texted her from work, but that Coon testified that he was at home on May 13, and that she allegedly was contacted by a "mysterious neighbor." Counsel further brought up Coon's prior criminal history of crimes involving dishonesty, arguing that it demonstrated his lack of credibility.
In sum, the record belies defendant's unsupported assertions that defense counsel was unprepared and lacked sufficient knowledge about the case to offer a proper defense. The record demonstrates that defense counsel clearly understood the case, effectively cross-examined the prosecution's witnesses, and vigorously argued reasons why the jury should conclude that the witnesses were not credible and defendant was innocent. To the extent that defense counsel's impeachment efforts and arguments were not successful, we find nothing in the record that suggests that defense counsel's presentation of the defense was objectively unreasonable or prejudicial. "The fact that trial counsel's strategy may not have worked does not constitute ineffective assistance of counsel." People v Stewart (On Remand), 219 Mich.App. 38, 42; 555 N.W.2d 715 (1996). Consequently, defendant cannot establish a claim of ineffective assistance of counsel.
C. BRADY VIOLATION
Next, defendant argues that he is entitled to a new trial because there were several items that the prosecutor suppressed or excluded, which could have been used to impeach the prosecution's witnesses.
To establish a Brady violation, a defendant must prove: (1) that the prosecution suppressed evidence; (2) the evidence was favorable to the accused; and, (3) viewed in its totality, the evidence is material. People v Chenault, 495 Mich. 142, 155; 845 N.W.2d 731 (2014). "Evidence is favorable to the defense when it is either exculpatory or impeaching." Id. at 150. To establish materiality, a defendant must show that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id.
Defendant argues that the following evidence was suppressed or excluded in violation of Brady: the identity of the neighbor who called Craig; phone records, the pepper spray container, and Zahn's bloodstained clothing that she was wearing at the time of the incident. However, the record indicates either that the prosecution did not have possession of these items, or they were provided to the defense. The prosecutor noted on several occasions that the prosecution was not able to determine the identity of the neighbor who contacted Craig. The record indicates that phone records were subpoenaed, and those that were available were produced. It is also undisputed that the pepper spray container and Zahn's clothing were never collected. Photographs of the clothing were taken and this evidence was provided to the defense. Thus, defendant does not establish that the prosecution failed to disclose favorable evidence within its control. See id. ("The government is held responsible for evidence within its control . . . ."). Defendant's arguments about how he would have used certain evidence does not show that the evidence was suppressed or that the evidence would have been favorable or material within the context of Brady.
Defendant also argues that the prosecution suppressed evidence of statements made by Craig and Coon to the police on the day of the assault. Both Craig and Coon testified that they believed they spoke to a police officer on May 13, but the record indicates that their statements did not appear in Officer Nelson's report. Nelson testified that he could not recall if he spoke to anyone other than Zahn when he responded to the scene and explained that, even if he did, he would not have included their statements in his police report if they did not witness the incident or provide any probative information. Thus, even assuming that Nelson spoke with Craig and Coon on the day in question, he did not make a record of their statements, and therefore the prosecution was not in possession of this purported evidence. Further, defendant does not explain how these initial witness statements would have been beneficial to the defense. For these reasons, he fails to establish a Brady violation.
D. PROSECUTOR'S CONDUCT - PERJURED TESTIMONY
Defendant contends that the prosecutor knowingly presented perjured testimony at trial and then used that false evidence to draw unreasonable inferences. We disagree.
Defendant did not object to the challenged conduct in the trial court. Therefore, this claim is unpreserved. See People v Bennett, 290 Mich.App. 465, 475; 802 N.W.2d 627 (2010). We review unpreserved claims of prosecutorial misconduct for plain error affecting defendant's substantial rights. People v Brown, 294 Mich.App. 377, 382; 811 N.W.2d 531 (2011).
A prosecutor may not knowingly use false testimony to obtain a conviction. People v Smith, 498 Mich. 466, 475-476; 870 N.W.2d 299 (2015). To this end, a prosecutor has a constitutional duty to inform the trial court and a criminal defendant when a government witness offers perjured testimony; a prosecutor must correct false evidence when it is presented. People v Lester, 232 Mich.App. 262, 276-277; 591 N.W.2d 267 (1998), overruled on other grounds in Chenault, 495 Mich. at 152. "[A] conviction obtained through the knowing use of perjured testimony offends a defendant's due process protections guaranteed under the Fourteenth Amendment." People v Aceval, 282 Mich.App. 379, 389; 764 N.W.2d 285 (2009).
Defendant's arguments do not establish that the prosecutor knowingly used false testimony to obtain defendant's conviction. To support this claim, defendant asserts, for example, that Zahn's preliminary-examination testimony differed from her trial testimony, which included additional details of her version of events, that Nelson's testimony differed from Zahn's testimony regarding whether he told her to discard her clothing, and Coon's testimony conflicted with Craig's 911 call regarding whether Coon was at home on May 13. These, as well as defendant's other examples, do not support his claim that these witnesses presented false testimony at trial, or show that the prosecutor knowingly presented or allowed false testimony to stand uncorrected. To the extent that the witnesses' trial testimony differed from their prior statements or testimony presented by other witnesses, there is no indication that the prosecutor sought to conceal those inconsistencies. Indeed, the record shows that the witnesses were questioned about their observations and inconsistent prior testimony and statements, and that defense counsel highlighted the inconsistences in closing argument. Thus, the jury was aware of the alleged inconsistencies and was permitted to consider them when evaluating the witnesses' credibility. The mere fact that a witness's testimony conflicts with prior statements or testimony or with another witness's testimony does not demonstrate that the prosecutor knowingly used perjured testimony. See People v Bass, 317 Mich.App. 241, 275; 893 N.W.2d 140 (2016) (explaining that an inconsistency between a witness's trial testimony and a prior statement does not establish that the trial testimony was in fact false). Defendant has failed to show a plain error.
Defendant also argues that the prosecution presented false evidence because the transcription of Craig's 911 calls that were played at trial contains inaccuracies. However, the jury did not request and was not provided a transcript of the recordings. Accordingly, any inaccuracy in the trial transcript had no bearing on the jury's verdict and defendant is not entitled to any relief on this claim.
E. SPEEDY TRIAL
We also reject defendant's claim that he was denied his constitutional right to a speedy trial.
The determination whether a defendant was denied a speedy trial is a mixed question of fact and law. Waclawski, 286 Mich.App. at 664. The trial court's factual findings are reviewed for clear error, while the constitutional issue is a question of law subject to de novo review. Id.
The United States and Michigan Constitutions guarantee criminal defendants the right to a speedy trial. U.S. Const, Am VI; Const 1963, art 1, § 20; People v Patton, 285 Mich.App. 229, 235 n 4; 775 N.W.2d 610 (2009). "In determining whether a defendant has been denied a speedy trial, four factors must be balanced: (1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) prejudice to the defendant from the delay." People v Mackle, 241 Mich.App. 583, 602; 617 N.W.2d 339 (2000) (citations omitted).
The delay period commences at the arrest of the defendant. People v Williams, 475 Mich. 245, 261; 716 N.W.2d 208 (2006), citing United States v Marion, 404 U.S. 307, 312; 92 S.Ct. 455; 30 L.Ed.2d 468 (1971). In Marion, the Court held that "the Sixth Amendment speedy-trial provision has no application until the putative defendant in some way becomes an 'accused, '" which does not occur until "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." Marion, 404 U.S. at 313. In this case, a warrant was issued on May 23, 2016. Defendant was arraigned on the warrant and jailed on August 3, 2016, and trial began approximately 35 months later on July 31, 2019. "A delay of more than eighteen months is presumed to be prejudicial and the burden is on the prosecution to prove lack of prejudice." People v Simpson, 207 Mich.App. 560, 563; 526 N.W.2d 33 (1994). "Although the length of delay in this case is considerable, there is no set number of days between a defendant's arrest and trial that is determinative of a speedy trial claim." People v Waclawski, 286 Mich.App. 634, 665; 780 N.W.2d 321 (2009). Thus, we must review the remaining factors.
The second factor requires consideration of the cause of the delays. In assessing the reason for the delay, the Court must examine to whom the delay is attributable. When a defendant requests an adjournment, the delay is attributable to the defendant. People v Cain, 238 Mich.App. 95, 113; 605 N.W.2d 28 (1999). The prosecutor is held accountable for unexplained or otherwise unattributable delays. People v Lown, 488 Mich. 242, 261; 794 N.W.2d 9 (2011). Despite defendant's assertion that the delays were attributable to the prosecution, the trial court examined the procedural history of the case and found that defendant was responsible for most of the delay, primarily because of his repeated requests for new counsel, "numerous, numerous delays based on [his] requests," and his several requests for an adjournment of trial. There was also an approximate six-month delay because a prosecution witness, Nelson, had been deployed overseas. A delay because of witness unavailability does not weigh against either party. However, the trial court noted that the witness was available to testify via Skype, but defendant had refused this option and chose to wait for the officer to return and testify in person. The trial court did not appear to hold this delay against the prosecution, as defendant sought. The prosecution appeared to be ready to proceed to trial but also filed motions that needed to be heard. In sum, the record indicates that the substantial delay was mostly attributable to the defense. Although there were reasons for additional delays, those periods were not significant. Under these circumstances, this factor weighs against defendant.
With respect to the third factor, the assertion of the speedy trial right, this Court looks at when the defendant asserted the right and when trial took place in relation to the assertion. See Cain, 238 Mich.App. at 113-114. Although defendant first asserted his right on March 23, 2017, and trial was not held until July 2019, subsequent delays were caused by defendant's requests for new counsel and defense requests for adjournments to obtain various items that defendant wanted produced. Therefore, little weight should be given to defendant's initial assertion of his right to a speedy trial.
With regard to the fourth factor, there are two types of prejudice: prejudice to the person and prejudice to the defense. People v Gilmore, 222 Mich.App. 442, 461-462; 564 N.W.2d 158 (1997). The latter prejudice is the more crucial in assessing a speedy trial claim. Williams, 475 Mich. at 264. Defendant argues that he was personally prejudiced because he was housed in solitary confinement for nine months and was diagnosed with an anxiety disorder. We agree that defendant suffered some prejudice to his person, however, "[prejudice to the defense is the more serious concern, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. at 265 (quotation marks and citation omitted).
There is no indication that the delay adversely affected defendant's ability to defend the charges. Defendant notes that Craig testified at trial that because it had been three years since the incident, her memory had "faded," and that Nelson had failed to recall certain things from that day. But general allegations of prejudice caused by delay, such as the unspecified loss of evidence or memory, are insufficient to show that his defense was affected. Gilmore, 222 Mich.App. at 462; People v Cooper, 166 Mich.App. 638, 655; 421 N.W.2d 177 (1987). Notably, defendant has not identified any specific beneficial testimony or evidence that was lost because of the delay. In sum, defendant has failed to show that any potential witness testimony favorable to the defense or that other exculpatory evidence was lost because of the delay in bringing him to trial.
After balancing the relevant factors, we hold that defendant's right to a speedy trial was not violated.
F. REBUTTAL EVIDENCE
Defendant also argues that the trial court abused its discretion by allowing the introduction of a black baseball hat.
During the prosecution's case, Zahn testified that defendant dropped the hat that he was wearing as he fled the house; the hat was collected and admitted into evidence at trial. Detective Don Schreiber testified that he visited defendant in jail in February 2017, at defendant's request. Defendant stated that he was wearing a black hat when he was maced by Zahn on May 13, 2016, that the hat was with him at the jail, and he asked the detective to have the hat tested for the presence of mace. The prosecution moved to admit the hat, but then withdrew the request when the defense objected to its relevance. Later, defendant testified that did not recall telling Schreiber that he was wearing a black hat on May 12 when he claims that Zahn maced him. In response to a juror question, defendant testified that he wore hats all the time and that his hat size was "[s]even and three-fourths." The prosecution then again moved to admit the black hat, and the trial court allowed admission over a defense objection on the ground that the hat was rebuttal evidence. There were stickers on the black hat, which was size 7-1/2, and defendant had told Schreiber that he always left the stickers on his hats. The hat that was collected from the crime scene on May 13 was also a size 7-1/2 and still had the stickers on it. In closing argument, the prosecutor made the following remarks:
But ladies and gentlemen, all of the evidence in this case points against what the Defendant said. The Defendant even lied about what size hat he wears. He told you seven and three quarters because he knew these hats were a seven and a half. This was in his property at the jail; People's twenty-four. It was in his property at the jail. It's a seven and a half. The hat that was found at the scene was a seven and a half. That was a convenient lie but it didn't make much sense.
Rebuttal evidence is admissible to "contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same." People v Figgures, 451 Mich. 390, 399; 547 N.W.2d 673 (1996) (quotation marks and citations omitted). "[T]he test of whether rebuttal evidence was properly admitted is . . . whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant." Id.
The trial court did not abuse its discretion by admitting the black hat as rebuttal evidence. Defendant testified that he wore a size 7-3/4 hat. The black hat that defendant gave to the detective directly contradicted this testimony, however, because it was size 7-1/2. Further, the black hat provided circumstantial evidence that the hat left behind at Zahn's residence-also size 7-1/2- belonged to defendant.
We also reject defendant's claim that the prosecutor's argument regarding the hats constituted misconduct. When referencing the uniformity of the two hats and highlighting how they were inconsistent with defendant's testimony about what size hat he wore, the prosecutor drew a reasonable inference from the evidence that had been admitted and made an argument to refute defendant's claim that he had not left his hat at Zahn's residence on May 13. The argument was not improper.
Because defendant did not object to these remarks at trial, our review of this issue is limited to plain error affecting defendant's substantial rights. Brown, 294 Mich.App. at 382. "A prosecutor's comments are to be evaluated in light of defense arguments and the relationship the comments bear to the evidence admitted at trial." Dobek, 274 Mich.App. at 64. Prosecutors have great latitude when arguing at trial. People v Fyda, 288 Mich.App. 446, 461; 793 N.W.2d 712 (2010). They may argue the evidence and all reasonable inferences that arise from the evidence in relationship to their theory of the case, and they need not state their inferences in the blandest possible language. People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995); Dobek, 274 Mich.App. at 66.
G. RIGHT OF CONFRONTATION
In his last claim, defendant argues that the trial court's denial of his request to cross-examine Detective Schreiber regarding whether Coon had been a police informant violated his right of confrontation. We disagree.
Although defendant sought to question Schreiber about whether Coon had ever been an informant, he did not argue that the trial court's refusal to allow the questioning violated his right of confrontation. Therefore, defendant's constitutional claim is unpreserved. We review defendant's unpreserved constitutional claim for plain error affecting his substantial rights. Carines, 460 Mich. at 763-764. "Substantial rights are affected when the defendant is prejudiced, meaning the error affected the outcome of the trial." Jones, 297 Mich.App. at 83.
During direct examination, Schreiber was asked if he had a relationship with Coon or his father. Schreiber answered as follows:
I am familiar with Murray Coon junior or Willie as we referred to him here in this court proceedings. I have arrested Willie before. As far as his father, he does work for Smitty's Towing. I'm vaguely familiar with him that way. As far as any type of a personal relationship with either one of them, no, ma'am.
During defense counsel's cross-examination of Schreiber, the following exchange occurred:
Q. . . . You indicated that you were familiar with [Murray] Coon because you had arrested him before, is that right?
A. Yes, sir.
Q. And are you aware if [Murray] Coon has ever been an informant for the Burton Police Department?
The prosecutor: Objection, your Honor. Relevance.
The court: Offer of Proof. Response?
Defense counsel: Your Honor, I think that it could go towards the credibility of Mr. Coon. Based on the relationship that he has with the Burton Police Department, he may have some incentive to cooperate even if it's not necessarily truthful and we think it's a matter of [sic] it goes to credibility.
The court: Who's credibility? Mr. Coon's?
Defense counsel: Correct.
The prosecutor: Extensive [sic] evidence is not admissible for impeachment.
The court: The objection's sustained. I agree.
Defendant takes exception to the trial court limiting defense counsel's cross-examination of Schreiber, which defendant claims violated his right to confront the witnesses (i.e., Coon, Schreiber and Nelson) against him. He also argues that the limitation prevented his counsel from presenting a defense that he had been "framed" based on establishing that Coon had previously been a police informant.
Defendant has not established that the trial court's limitation on cross-examination violated his rights under the Confrontation Clause or his right to present a defense. The Confrontation Clause of the United States and Michigan Constitutions grant defendants the right to confront witnesses against them. U.S. Const, Am VI; Const 1963, art 1, § 20. "A primary interest secured by the Confrontation Clause is the right of cross-examination." People v Adamski, 198 Mich.App. 133, 138; 497 N.W.2d 546 (1993). However, "[t]he right to confront and cross-examine is not without limits. It does not include a right to cross-examine on irrelevant issues." People v Arenda, 416 Mich. 1, 8; 330 N.W.2d 814 (1982). Likewise, although a defendant has a constitutional right to present a defense, U.S. Const, Am VI; Const 1963, art 1 § 20; Adamski, 198 Mich.App. at 138, he must still comply with procedural and evidentiary rules established to assure fairness and reliability in the verdict. See Arenda, 416 Mich. at 8. "Accordingly, the right to present a defense extends only to relevant and admissible evidence." People v Solloway, 316 Mich.App. 174, 198; 891 N.W.2d 255 (2016) (quotation marks and citations omitted).
Preliminarily, no evidence was presented below, and defendant has not provided any on appeal, showing that Coon was paid to testify against defendant or was a police informant in this case. Even if there were evidence that Coon had been a police informant, that activity would have been only marginally relevant to the defense, particularly considering that there was no evidence linking any informant activity to his status as a witness in this case. Defendant has not demonstrated how the fact that Coon may have acted as a police informant at some point makes it more probable than not that Schreiber or Nelson could be biased against defendant to the extent that they worked with Coon to frame defendant. Indeed, Schreiber testified regarding his relationship with Coon, specifically explaining that he was familiar with Coon from having arrested him and had no personal relationship with him. Nelson also testified that he was familiar with Coon because he had been a suspect in criminal complaints over the years. Defendant has not persuasively explained how being allowed to question Schreiber about Coon being a police informant, based only on defendant's unsubstantiated allegations, supports the leap that the detective or the responding officer was biased against him, had a professional relationship with Coon, or encouraged Coon to falsely testify against defendant. The record provides no indication that the police engaged in such misconduct.
In sum, the evidence that defendant sought to elicit was both irrelevant under MRE 401, and inadmissible under MRE 403 (even if relevant, a trial court properly may exclude evidence "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 . . . waste of time . . . ."). For these reasons, defendant has not demonstrated that the trial court erred by denying his request to cross-examine Schreiber regarding whether Coon had been a police informant for the Burton Police Department. Accordingly, there was no plain constitutional error, and defendant is not entitled to relief for this unpreserved claim.
Affirmed.