Opinion
354941
12-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRIANNA CONNER-WASHINGTON, Defendant-Appellant.
UNPUBLISHED
Macomb Circuit Court LC No. 2019-001216-FC
Before: Boonstra, P.J., and Gleicher and Letica, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial conviction of second-degree murder, MCL 750.317. Defendant was sentenced to 18 to 50 years' imprisonment. We affirm.
I. FACTUAL BACKGROUND
This case arises out of an incident where defendant stabbed and killed the victim, Maurice Carpenter, her 24-year-old former boyfriend. For about six months, the pair had been in an on-again/off-again dating relationship, but the victim had moved on to a new relationship.
A. THE TEXTS
On Friday, March 8, 2019, the victim posted an Instagram story showing himself enjoying some alcohol. The victim's current female companion was heard in the background.
Later, defendant and the victim exchanged a series of text messages. At 10:12 p.m. defendant expressed surprise regarding their relationship status as she thought they were "working to get us back on track," followed up with "[y]ou one cold mf[.]" The victim responded they were just "friends," and he questioned whether he had actually said they were "back together." Defendant retorted it had not been a month and the victim was moving on while she "struggle[d] to sleep." Defendant added that "[i]f [the victim had] never hurt[] [her] before," he "spit in [her] face on this one," and she accused him of infidelity from the inception of their relationship.
Defendant attempted to call the victim, but he did not answer. Defendant soon texted him: "[T]hat's really shady[.] I'm not even about to continue to text you no more[.] [Y]ou just crush[ed] tf outta my feelings[.]" When the victim still failed to respond, defendant texted him about that as well. The victim answered, cautioning defendant that she had "tak[en] it to[o] far[.]" Defendant replied she had not and she continued to complain about how the victim had treated her, "gas[s]ing [her] up with one drinking liquor [she had] paid for with . . . [an]other b***h." Defendant wrote that the victim was "cold[-]hearted to a dam[n] person who never did anything to[] [him][.]"
By 10:47 p.m., defendant texted "[w]hen I pull up[, ] come outside" and, seconds later, that she was "15 min[ute]s away[.]" In part, the victim replied: "[D]on't come [to] my crib." Defendant responded, "I'm coming." The victim countered with "[d]on't know for what" and "I hope you know I'm not playing." Defendant replied: "I hope you know I'm not []either." The victim again told defendant "don't come to my crib[.]"
At 10:57 p.m., defendant called Daviyon Gordon, the victim's roommate, who called defendant back about four minutes later. Throughout their six-minute conversation, defendant was angry and accusatory. Defendant told Gordon, "I'm coming with all the smoke," which Gordon understood to mean that defendant intended to "hurt," "kill," or otherwise harm the victim. Immediately after the call ended, a panicked Gordon called the victim to relay defendant's threat. The victim then called defendant at 11:10 p.m.
B. THE STABBING
At 11:11 p.m., defendant arrived, and Ryan Pitts, another one of the victim's roommates, overheard the former couple verbally arguing outside. In part, defendant screamed at Pitts: "[B]ring that b***h outside the house." The pair's loud argument continued for several minutes.
The victim's new companion was inside the victim's home.
Gordon, who was at a nearby home, tried to call the victim without success. Gordon then called Pitts, who missed his call, but called him back within minutes, reporting that the former couple was arguing. Pitts noted that defendant's car was leaving. Gordon and Pitts then planned to meet up and walked back to Pitts's room.
Gordon and Pitts noticed that defendant's car was gone, but once upstairs, they heard it pull up and park. Although Gordon did not see either defendant or the victim; Pitts saw both of them. Thinking everything was normal or that the former couple would resolve their issues, Pitts and Gordon were chatting until they heard someone "gasping for air." Gordon went to the window and saw defendant's rear driver's side door was open. The door closed and defendant's car sped off. Gordon immediately tried to call the victim without success at 11:20 p.m.
C. THE HOSPITAL
At 11:23 p.m., defendant sought help for the victim at a nearby hospital. While there, defendant told the hospital security guard that she and the victim had had a verbal altercation. Defendant further reported that the victim "had pulled her hair[]" and "ripped . . . her necklace" from her neck, causing her to leave. She then returned to find the victim stabbed.
Another hospital employee noticed defendant visibly upset and crying. Defendant explained she and the victim were "exes." Defendant had driven the victim to the hospital and asked how he was doing, which the employee could not answer. Defendant then shared that she had driven to the victim's home and he had "attacked" her. More specifically, defendant disclosed that the victim had pulled her hair and she showed the employee the back of her head. The employee observed that the victim's hair weave had been pulled out or her hair had been "torn a little bit." Defendant further reported that the victim had punched her, but she did not specify where, and the employee did not notice any injury. Defendant also indicated that the victim had pulled off her necklace and claimed a history of domestic violence. It struck the employee as odd that defendant indicated that she did not want to press charges.
The employee's interaction with defendant was captured by the hospital's security camera.
Hoping to aid the victim's trauma surgeon, the employee asked how the victim had been stabbed. Defendant replied that it must have been the sharp car door, but she also repeatedly stated that she did not mean to harm the victim. The employee told defendant that she wanted to speak with the doctors and would return. Defendant nodded, but, minutes later, she was gone by the time that the employee returned with a resident because those attempting to treat the victim dismissed defendant's sharp car door theory as the source of the victim's injury.
D. THE DEATH
The victim later died from a single, deep stab wound to his abdomen. The wound was ¾" in length and at least 1½" deep. The pathologist explained that her measurement of the wound's depth was just an estimate given the surgical intervention required to treat the victim's injuries. As it turned out, the knife used to stab the victim lacerated significant veins located in front of his spine, emptying blood into his abdominal cavity.
E. THE INTERVIEW
The police soon focused on defendant, who had shared her first name and telephone number with the hospital employee. The following morning, the police located defendant and arrested her. Defendant agreed to waive her constitutional rights and a 3½-hour videotaped interview, with some breaks, was recorded. The videotape was not admitted into evidence, but the interviewing detective testified about what occurred. During the interview, defendant's version of the events changed significantly.
Defendant initially claimed she went to the victim's home, where they argued over a necklace and some money he owed her. The victim pushed her, told her to leave, broke her necklace, and punched her in the mouth. Defendant described being surprised by the victim's physical violence. Although the pair argued and sometimes pushed each other, defendant repeatedly stated that the victim never struck or punched her before that night.
The detective found defendant's necklace on the floor of the interview room. It had apparently fallen into her clothing before dropping onto the floor.
After the physical assault, the victim gave defendant the money that he owed her and she departed on good terms. About 15 minutes later, the victim called defendant, and, in a weak voice, requested help. Defendant returned to find him lying on the ground. He told her "they stabbed me" and she drove him to the hospital.
The detective confronted defendant with her earlier claim to the hospital employee that the victim had fallen into the car door. Defendant denied making that statement and claimed that she left the hospital after telling the employee she was going to work; however, her true reason for leaving was that she feared the victim's family would come to the hospital. Defendant continued to deny that she had stabbed the victim.
When the detective suggested that the cameras at the victim's complex did not show anyone else had stabbed him, defendant responded that, if the camera showed that, she would "take it." Defendant said that she "was going to be honest" and was "not lying." Defendant then said that the victim "just collapsed," when they were arguing. This changed to the victim telling defendant that she "poked" him.
When the detective asked what defendant had used to cut the victim, she described box cutters that she used at work. The detective thought that implement was inconsistent with the nature of the victim's wound. And, in fact, the police obtained a search warrant to search defendant's vehicle, which appeared to have been recently washed and cleaned, and was missing its rear driver's side floormat. The police retrieved a pair of box cutters and determined that they were inconsistent with the victim's wound. The detective then informed defendant that there was "no way" the box cutters caused the victim's wound. Defendant acknowledged that there was a small chance that she had used something else, before again insisting that it was a box cutter.
As defendant repeated her story, she failed to mention being punched. This caused the detective to question her on that point as defendant had insisted that the victim punched her with sufficient force to loosen a tooth and a bracket from her braces. The detective then had defendant show him the inside of her lip, where he saw no injury, despite the victim being a young, muscular man. At that point, even defendant admitted that she did not have any injuries to her mouth.
Defendant also admitted being angry about the victim not doing what he said he would; however, she claimed that was not angry about the other woman. The detective confronted defendant with Pitts's statement that defendant had demanded that he bring that "b***h" outside. Defendant denied making that demand. According to defendant, the victim asked her to leave and gave her $60 he owed her. Defendant, however, wanted to talk. In turn, the victim kept telling defendant to leave and was pushing her toward the car. That was when she "poked him." Defendant began apologizing, saying that she did not mean it. As defendant described it, she turned around and swung with her hand out, but did not intentionally cut the victim. Defendant then admitted that she made up her initial version in which others stabbed the victim.
Defendant further revealed that the victim had threatened to call the police. Defendant told him to do it so that they could watch her leave. When the detective asked defendant why she did not leave, she responded, "I messed up. I should've left."
Thereafter, defendant reenacted her argument with the victim, demonstrating that he pushed her to get her back and spun her around, grabbing her by the back of her hair, and told her to leave. After the victim pushed her, defendant struck her car's frame and incurred a bruise above her right eyebrow. Defendant swung at the victim either because she assumed that he had walked away or because she was attempting to get him to back away. The detective then confronted defendant about the inconsistency between the victim walking away or being forced to back up. Defendant eventually said that what she had done was wrong.
After another break in the interview, the detective returned to the question of the knife used to inflict the wound. Defendant continued to insist it was her work box cutter. The detective then questioned whether there was a small chance that it could have been anything else. Defendant responded, "[W]ell maybe there's a small chance." After some back and forth, defendant admitted she had a folding knife with a black and purple handle and the word "boom" on it. Defendant said she had thrown the knife into her car, but the police did not find it there. Confronted with that fact, defendant offered that a later passenger in her vehicle must have done something with the knife.
After another break, the detective encouraged defendant to be truthful. Defendant then stated that the victim pushed her a couple of times after she arrived. He grabbed her hair, gave her money, and pushed her into her car. Defendant grabbed the knife, which was closed, and swung it.
The detective continued to confront defendant and urge her to "be truthful." The detective explained that after reviewing the evidence, he would know what had happened. Defendant then claimed the knife accidentally opened before stating that the knife, which had been a gift from the victim, may have been open.
After the interview, a sexual assault nurse examiner (SANE) assessed defendant at the police station. The examiner noted a small green bruise above defendant's right eye and another small bruise on the left side of her neck. The examiner located no injuries to defendant's mouth. A skin swab from the right side of defendant's neck revealed the victim's DNA.
F. THE DEFENSE
At trial, defendant insisted that her attorney call two witness.
De'aries Conner, defendant's older sister, testified that in February 2019, she was present when defendant and the victim were arguing in the victim's home. Later, she heard a commotion and found the victim holding defendant's hair, bending her down, and "like trying to hit her." Defendant's sister pushed the victim off defendant, told him not to touch her, and told defendant that they had to leave, which they did. The sisters did not report that incident to the police, but De'aries Conner told defendant never to see the victim again.
Jayda Dukes, defendant's long-time friend, testified that the victim was controlling of defendant and that Dukes saw the victim "smack" the defendant on the face in January 2019, in a public park. Dukes had also seen the victim pull defendant's hair and "like pull her back . . . inside [a] car." When confronted by defendant's statement during her police interview that the victim had never laid a hand on her before that night, Dukes testified that she would not believe defendant's statement.
The victim's roommates agreed that defendant's relationship with the victim was "toxic." But, while the former couple frequently verbally argued, the victim's roommates did not witness any physical violence between them.
G. THE VERDICT
During trial, the court denied defendant's motion for a directed verdict. The trial court also instructed the jury on second-degree murder, manslaughter as an included offense, and self-defense. The jury convicted defendant as charged. This appeal followed.
II. RECORDED STATEMENT
Defendant argues she was denied a fair trial because the trial court allowed the detective to testify about defendant's statements during the police interview rather the playing the entire recording, violating the rule of completeness, MRE 106, and the best evidence rule, MRE 1002. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Thorpe, 504 Mich. 230, 252; 934 N.W.2d 693 (2019). Defendant argues the additional portions of the interview were admissible under the rule of completeness, MRE 106, and the best evidence rule, MRE 1002. She raised the rule of completeness argument at trial but not the best evidence rule argument. Therefore, defendant's argument is preserved as to the rule of completeness, but unpreserved as to the best evidence rule. Id.
Preserved evidentiary issues are reviewed for an abuse of discretion. Thorpe, 504 Mich. at 252. The trial court abuses its discretion if it makes a decision that falls outside the range of principled outcomes. People v Duenaz, 306 Mich.App. 85, 95; 854 N.W.2d 531 (2014).
Unpreserved evidentiary arguments are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999).
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [Id. at 763-764 (quotation marks and citations omitted).]
B. LAW AND ANALYSIS
On the first day of trial, the prosecutor moved the trial court to exclude certain self-serving statements defendant had made during her police interview. The prosecutor explained that he intended to admit defendant's out-of-court statements during the interview as party-opponent admissions; however, he sought to exclude defendant's "self-serving statements that were a combination of . . . lies," going through them "one by one . . . ." Defense counsel objected that defendant's statements were "more akin to excited utterance[s]" that would be admissible. Defense counsel also protested that it was "highly unfair and prejudicial" for the prosecutor to "bring in statements" that he liked, and "try to exclude statements that [he did not] like." Defense counsel also thought that it would be appropriate to ask the detective about defendant's demeanor during the interview. The trial court concluded:
In pertinent part, MRE 801(d) reads: "A statement is not hearsay if . . . (2) [t]he statement is offered against a party and is (A) the party's own statement . . . ."
The prosecutor did not further identify the particular statements he sought to exclude.
In part, MRE 803 states: "The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (2) [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."
Well, it is [an] admission by party-opponent. Obviously, [defendant] has a right to not testify, a constitutional right. . . . However, she can't get around that by making statements, and then having them come in and not be subject to cross-examination either.
I don't think the Rules of Evidence allow, or necessarily mean, bringing everything in. So, I would agree that portions-only portions can come in, if that's how the prosecution chooses to present them. Obviously, they can't be cut up in such a manner where it doesn't make any sense. . . . But they can leave those portions out.Defense counsel responded that the rule of completeness would require the admission of defendant's entire statement. Moreover, defense counsel renewed his request to ask whether defendant showed remorse or concern for the victim. The trial court agreed that defense counsel could inquire about defendant's remorse; however, the trial court did not know if "that necessarily brings her statements in." Defense counsel replied that if the detective did not repeat defendant's exact words, counsel thought it fair to follow up. Again, the trial court agreed that those types of questions could be asked without bringing in defendant's interview statements.
In People v McGillen, 392 Mich. 251, 263; 220 N.W.2d 677 (1974), our Supreme Court held that it was improper for a testifying officer to paraphrase what the defendant said during an interview, explaining: "[The officer] was not asked to capsulize the conversation and give his synopsis. He was asked what the defendant said. It is only the [d]efendant's statements that may be admissible against him, not the arresting officer's editorialized version of them."
As an initial matter, we note that the trial court's ruling on admissibility of the detective's testimony in lieu of the recorded statement was not error. To the extent that defendant's out-of-court statements during her police interview constituted party-opponent admissions, they were admissible under MRE 801(d)(2)(A) because they were not hearsay. Defendant's purported exculpatory statements made during her police interview were hearsay, MRE 801(c), and inadmissible absent a recognized hearsay exception, MRE 802. In this case, because defendant was not subject to cross-examination, having declined to testify at trial, she cannot (and does not) argue that her exculpatory statements were "not hearsay" under MRE 801(d)(1) ("A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statements, and the statement is . . . ."). And defendant does not argue on appeal that the statements are subject to a hearsay exception.
" '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).
Moreover, although a defendant's constitutional right to present a defense is recognized, it is not absolute. See People v Anstey, 476 Mich. 436, 460; 719 N.W.2d 579 (2006) (quotation marks, brackets, and citation omitted) ("The right to present a defense is a fundamental element of due process[.]"). A defendant is still required to comply with the rules of "evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." People v Hayes, 421 Mich. 271, 279; 364 N.W.2d 635 (1984) (quotation marks and citation omitted).
1. RULE OF COMPLETENESS
The rule of completeness, MRE 106, states:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."The premise of the rule is that a thought or act cannot be accurately understood without considering the entire context and content in which the thought was expressed." People v McReavy, 436 Mich. 197, 214-215; 462 N.W.2d 1 (1990). But "MRE 106 does not automatically permit an adverse party to introduce into evidence the rest of a document once the other party mentions a portion of it." People v Herndon, 246 Mich.App. 371, 411 n 85; 633 N.W.2d 376 (2001).
Importantly, the rule is "only . . . pertinent if defendant sought, but was denied, permission to have a complete writing or recorded statement introduced." People v McGuffey, 251 Mich.App. 155, 161; 649 N.W.2d 801 (2002).
We conclude the trial court did not err for the simple reason that MRE 106 does not apply in this instance. MRE 106 applies to writings, recorded statements, or parts of writings or recorded statements; this case involved none of those. Rather, it presented a police detective's testimony about his interview with defendant. "Because the rule of completeness only pertains to the admissibility of writings or recorded statements, and defendant's argument concerns the actual testimony [of a witness] . . ., it is irrelevant here." People v Solloway, 316 Mich.App. 174, 201; 891 N.W.2d 255 (2016). It is true that the interview was recorded, but that recording was never introduced into evidence. Therefore, MRE 106 does not apply in this case.
Defendant also relies on People v Warren, 65 Mich.App. 197, 199; 237 N.W.2d 247 (1975), in which we reversed a second-degree murder conviction under the rule of completeness because only the inculpatory portion of the defendant's recorded statement to police investigators was presented to the jury. Defendant recognizes that Warren was decided before the Rules of Evidence were adopted. And, as our Supreme Court has explained, "the adoption of these rules changed the process governing a trial court's admissibility determinations." People v Barrett, 480 Mich. 125, 135; 747 N.W.2d 797 (2008). In any event, Warren is distinguishable because it involved the presentation of the actual recorded statement, which this case does not.
Finally, even if the entire interview should have been introduced, defendant's argument still ultimately falls short because she has failed to establish prejudice as a result of the trial court's alleged failure. "No judgment or verdict shall be set aside or reversed . . ., on the ground of . . . the improper . . . rejection of evidence, . . . unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice." MCL 769.26. Defendant suggests that playing the full videotaped interview would have made the jury more inclined to accept her claims of self-defense or manslaughter without specifying why that is so. See People v Bosca, 310 Mich.App. 1, 16; 871 N.W.2d 307 (2015) (quotation marks and citation omitted) ("An appellant may not merely announce [her] position and leave it to this Court to discover and rationalize the basis for [her] claims. . . .") Although we could deem this contention abandoned, we also conclude it is without merit as we are unable to discern how the trial court's decision to grant the prosecution's request to allow the detective to testify to admissible portions of the interview resulted in a miscarriage of justice, especially given the lengthy testimony he provided. See Genesee Co Prosecutor v Genesee Circuit Judge, 386 Mich. 672, 683; 194 N.W.2d 693 (1972) ("For the judiciary to claim power to control the institution and conduct of prosecutions would be an intrusion on the power of the executive branch of government and a violation of the constitutional separation of powers.") Defendant offers that the detective's testimony alone was prejudicial because the detective repeatedly injected his opinion regarding defendant's truthfulness and interpreted one of her statements to be indicative of her guilt. While defendant does not specifically identify those statements, she cites to several transcript pages. Review of those pages does not convince us that a miscarriage of justice occurred with a claim that the videotape does not mirror the detective's testimony about defendant's evolving versions of the evening's events. In fact, on cross-examination, trial counsel himself asked few questions about the interview, but elicited that defendant "told a lot of lies" to the detective and also minimized her actions, which was not uncommon, during an interrogation.
In conclusion, as the trial court reasoned: "I don't think the Rules of Evidence allow, or necessarily mean, bringing everything in. So, I would agree that portions-only portions can come in, if that's how the prosecution chooses to present them." The trial court understood that the recording itself had not been brought into evidence and that defense counsel's rule of completeness argument was incorrect. Accordingly, the trial court did not abuse its discretion. Thorpe, 504 Mich. at 252. But, even if it had, defendant has not shown the error was outcome-determinative. Id.
2. BEST EVIDENCE RULE
The best evidence rule, MRE 1002, states: "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute." In other words, where a writing, recording, or photograph is concerned, the original must be used.
We conclude defendant's argument falls short for the same reason as her argument under MRE 106: the recording was never introduced into evidence, and, therefore, MRE 1002 is inapplicable. The rule applies to writings, recordings, or photographs, while this case deals with the testimony of the detective who interviewed defendant. Thus, defendant has not demonstrated that plain error occurred. Carines, 460 Mich. at 763.
III. SUFFICIENCY OF THE EVIDENCE
Defendant contends that her second-degree murder conviction was not supported by sufficient evidence, which deprived her of due process of law under the Fifth Amendment to the United States Constitution. We disagree.
A. STANDARD OF REVIEW
We review de novo a challenge to the sufficiency of the evidence. People v Bailey, 310 Mich.App. 703, 713; 873 N.W.2d 855 (2015). We view "the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012) (quotation marks and citation omitted). "We afford deference to the jury's special opportunity to weigh the evidence and assess the credibility of the witnesses." People v Unger, 278 Mich.App. 210, 229; 749 N.W.2d 272 (2008). And we are "required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Oros, 502 Mich. 229, 239; 917 N.W.2d 559 (2018) (quotation marks and citation omitted).
B. LAW AND ANALYSIS
The Fifth Amendment to the United States Constitution states, in relevant part: "No person shall be . . . deprived of life, liberty, or property, without due process of law . . . ." U.S. Const, Am V. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable double of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364; 90 S.Ct. 1068; 25 L Ed2d 368 (1970).
"[T]he elements of second-degree murder are . . .: (1) a death, (2) the death was caused by an act of the defendant, (3) the defendant acted with malice, and (4) the defendant did not have lawful justification or excuse for causing the death." People v Smith, 478 Mich. 64, 70; 731 N.W.2d 411 (2007). "Malice is defined as 'the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.'" People v Werner, 254 Mich.App. 528, 531; 659 N.W.2d 688 (2002), quoting People v Goecke, 457 Mich. 442, 464; 579 N.W.2d 868 (1998). "Malice may be inferred from evidence that the defendant 'intentionally set in motion a force likely to cause death or great bodily harm.'" Id., quoting People v Djordjevic, 230 Mich.App. 459, 462; 584 N.W.2d 610 (1998). The prosecution need not prove that defendant intended to harm or kill the victim; instead, it need only prove "the intent to do an act that is in obvious disregard of life-endangering consequences." People v Aldrich, 246 Mich.App. 101, 123; 631 N.W.2d 67 (2001) (quotation marks and citation omitted).
However, "[a] killing may be considered justified if the defendant acts in self-defense." People v Bailey, 330 Mich.App. 41, 46; 944 N.W.2d 370 (2019). In relevant part, the Self-Defense Act, MCL 780.972, reads:
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.In this case, we conclude that there was sufficient evidence to support the conviction of second-degree murder and that the prosecution presented sufficient evidence to carry its burden of establishing that defendant did not act in self-defense.
The first and second elements of second-degree murder-"(1) a death (2) . . . caused by an act of the defendant"-are clearly supported by sufficient evidence because the trial testimony and exhibits established that the victim died as a result of being stabbed by defendant. Smith, 478 Mich. at 70.
The third element of second-degree murder, which requires that "defendant acted with malice," is also supported by sufficient evidence. Id. Again, "[m]alice is defined as 'the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.'" Werner, 254 Mich.App. at 531, quoting Goecke, 457 Mich. at 464. "Malice may be inferred from evidence that the defendant 'intentionally set in motion a force likely to cause death or great bodily harm.'" Id., quoting Djordjevic, 230 Mich.App. at 462. And "[m]alice may be inferred from [a] defendant's use of a knife," which is a deadly weapon, to stab another. People v Roper, 286 Mich.App. 77, 85; 777 N.W.2d 483 (2009). In short, a defendant's intent may be inferred "from [her] words or from the act, means, or the manner employed to commit the offense." People v Hawkins, 245 Mich.App. 439, 458; 628 N.W.2d 105 (2001).
Defendant's statements and actions support the jury's determination that she acted with malice. In particular, defendant repeatedly texted the victim, expressing her anger over his treatment of her and informing him that she was coming over to his house despite his express objection. While on her way to the victim's house, she called Gordon, the victim's roommate, warning that she was "coming with all the smoke." Both Gordon and Pitts, testified that this phrase was a threat, meaning that defendant was coming to either harm or kill the victim. Importantly, Gordon and Pitts rejected defendant's suggestion that this phrase was merely a reference to the group smoking marijuana.
When defendant arrived at the victim's condominium, she and the victim argued loudly in the parking lot. Defendant even yelled to Pitts to bring the victim's current companion outside, referring to her as a "b***h." And, within minutes of arriving, defendant stabbed the victim with a knife in the abdomen-a vital area, inflicting a deep wound that proved deadly.
At the very least, defendant's actions and demeanor clearly suggest "the intent to do an act that is in obvious disregard of life-endangering consequences," Aldrich, 246 Mich.App. at 123 (quotation marks and citation omitted), if not an intent to commit great bodily harm or an intent to kill. Accordingly, there was sufficient evidence for the jury to conclude that defendant acted with malice.
Finally, the fourth element of second-degree murder, which requires that "defendant . . . not have lawful justification or excuse for causing the death," is supported by sufficient evidence. Smith, 478 Mich. at 70. Self-defense is an affirmative defense that, if established, will justify otherwise punishable criminal conduct. People v Dupree, 486 Mich. 693, 707; 788 N.W.2d 399 (2010). The SDA codifies the circumstances in which a person is justified in using deadly force in self-defense without having the duty to retreat. People v Guajardo, 300 Mich.App. 26, 35-36; 832 N.W.2d 409 (2013). "Once a defendant 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 bears the burden of disproving the affirmative defense of self-defense beyond a reasonable doubt." Dupree, 486 Mich. at 712. "In general, a defendant does not act in justifiable self-defense when he or she uses excessive force or when the defendant is the initial aggressor." Guajardo, 300 Mich.App. at 35.
Defendant asserts she had a lawful justification for causing the victim's death, namely self-defense under MCL 780.972(1), because she stabbed the victim as he physically assaulted her. More particularly, the victim "grabb[ed] her neck and bash[ed] her eye with either his hand or against the body of the defendant's vehicle." These assaults led to the injuries documented by the SANE, who found a small, green bruise above defendant's right eye, a small bruise on the left side of her neck, and tenderness to the back of her neck. Moreover, the victim's DNA was on the right side of defendant's neck.
For the defense of self-defense to apply, defendant must have "honestly and reasonably" believed that the use of deadly force was necessary to prevent imminent death, great bodily harm, or sexual assault. MCL 780.972(1)(a) and (b). But review of the record demonstrates that the prosecution presented evidence that supported the jury's findings beyond a reasonable doubt that defendant did not act in self-defense, but, instead, committed second-degree murder.
We initially note that defendant's numerous statements after the stabbing do not consistently support her claim of self-defense. Defendant told the hospital security officer that the victim "pulled" "her hair" and that "her necklace ripped off." She told another hospital employee that the victim "attacked her," pulling her hair, punching her, and pulling her necklace off. Defendant then said that she and the victim "fought" and he fell over. Asked how the victim had been stabbed, defendant proffered "a sharp edge on [the car] door." Thereafter, however, defendant repeated three or four times that she "didn't mean to do him harm."
Likewise, at the start of her interview with the detective, defendant claimed that the victim pushed her, told her to leave, punched her in the mouth, and broke her necklace. This surprised defendant because the victim had never struck or punched her before that night. Even so, defendant claimed that the pair parted on good terms with the victim later calling her for help. She returned to find him on the ground, where he told her "they stabbed me." See People v Wolford, 189 Mich.App. 478, 482; 473 N.W.2d 767 (1991) ("the jury could consider defendant's false statement to the police as evidence of guilt"); People v Dandron, 70 Mich.App. 439, 443-445; 245 N.W.2d 782 (1976). Defendant subsequently admitted that she lied during her initial statement. Notably, the detective did not see any injuries to defendant's mouth consistent with her claim of being punched, and the SANE documented none. Defendant herself recognized that she did not have any injuries to her mouth.
Later in her police interview, defendant claimed that the victim "just collapsed" when they were arguing. This morphed into the victim informing the defendant that she had "poked" him. Defendant then said that she had accidentally cut the victim with a box-cutter in an attempt to get him to stop pushing her toward her car.
Eventually, defendant changed her story again, indicating that she stabbed the victim either while he was walking away or to force him to back away. In another story, the victim grabbed defendant's hair, gave her money, and pushed her into her car. Defendant then grabbed the knife, which was closed, and swung it, before she altered her story to the knife opening accidentally.
Importantly, as to the question of whether defendant "honestly and reasonably" believed that the use of deadly force was necessary to prevent imminent death or great bodily harm, the detective testified that "[n]ever one time [during the 3-plus hour interview] did [defendant] ever say I thought he was going to kill me . . . [or] I was in fear for my life." Thus, viewing the evidence in the light most favorable to the prosecution, the jury could have disbelieved defendant's statements that the victim assaulted her that night, and, instead concluded that defendant did not honestly and reasonably believe that use of deadly force was necessary to prevent imminent death or great bodily harm. Rather, the jury could have concluded that defendant, angry over the victim's new relationship, threatened him, drove to his home over his objection, loudly argued with him, rebuffed his requests to leave, and stabbed him before she cleaned her car, disposed of the knife, and concocted false scenarios regarding the stabbing.
In sum, a rational jury could conclude that all four elements of second-degree murder were supported by sufficient evidence and that the prosecution carried its burden of disproving defendant's claim of self-defense beyond a reasonable doubt. Therefore, defendant was not deprived of her due-process protections.
IV. MENS REA
In defendant's Standard 4 brief, she argues that she was denied her state and federal constitutional rights because the trial court removed the issue of mens rea from the jury's consideration. We disagree.
1. PRESERVATION AND STANDARD OF REVIEW
We review questions of law, including the constitutional right to a jury trial, de novo. People v Miller, 498 Mich. 13, 17-18; 869 N.W.2d 204 (2015). To preserve a challenge to a trial court's decision to give or not give a specific jury instruction, a party must object to or request the instruction before the trial court. People v Sabin, 242 Mich.App. 656, 657; 620 N.W.2d 19 (2000). In this case, plaintiff did not object to or request any specific jury instructions to be given; instead, defense counsel waived any error by specifically stating that he had no objection to the instructions when the trial court inquired. See People v Kowalski, 489 Mich. 488, 503; 803 N.W.2d 200 (2011).
2. LAW AND ANALYSIS
Defendant primarily asserts that the trial court improperly removed the issue of her mens rea from the jury. Even so, it appears that defendant also raises two additional errors and we will address all three.
A. INSUFFICIENT EVIDENCE
Defendant argues that there was insufficient evidence presented to prove the malice element of second-degree murder. Because this issue has already been discussed, we respond only to defendant's additional arguments.
Defendant claims that she did not intend to harm the victim based on her statement that she "did not intend to hurt him." Defendant also points to similar statements by "several others," citing to testimony from the hospital employee and the detective about defendant's statements to them. Defendant adds that her act of quickly transporting the victim to the nearest hospital demonstrates that she did not intend to harm him. Moreover, none of defendant's text messages on the night of the incident explicitly state that she intended to kill the victim.
Again, viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence for the jury to conclude that defendant possessed the requisite intent. Defendant drove to the victim's home over his express objection and repeatedly texted him to share her anger over the way he had treated her and other matters. She called the victim's roommate, conveying what he interpreted as a threat to harm or kill the victim. Minutes after arriving, defendant demanded that the victim's other roommate bring the victim's new companion outside. Thereafter, defendant stabbed the victim with a knife in the abdomen with sufficient force to lacerate the veins positioned in front of his spine. At a minimum, the evidence was sufficient for the jury to conclude that defendant intended "to do an act in wanton and willful disregard of the likelihood that the natural tendency of [her] behavior is to cause . . . great bodily harm," if not an intent to cause great bodily harm. Werner, 251 Mich.App. at 531.
Defendant also argues that the phrase "all the smoke" does not mean she intended to kill the victim. This argument ignores that the intent element of second-degree murder does not necessarily require defendant intend to kill the victim. Rather, it includes" 'the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.'" Id. Defendant cites a few of the statements by Gordon and Pitts regarding what the phrase "all the smoke" means, but these statements are cherry-picked and do not reflect the overall consensus between the two witnesses that "all the smoke" means "I'm going to come get you. That's what it means. Like, I'm going to come beat the f**k out of you . . . ."
Defendant next seizes on the prosecutor's statement that the intent element could still be satisfied "even if she didn't intend to kill him," contending that it inaccurately describes the intent element of second-degree murder. It does not. Again, the intent element of second-degree murder may be satisfied by showing that the defendant had "the intent to cause great bodily harm, or the intent to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.'" Id. The prosecutor did not misstate the law.
Finally, defendant asserts that she "was disturbed by mental or emotional excitement which make an ordinary person likely to act rationally [sic] without due deliberation or reflection and from passion rather than judgment." As already discussed, "the elements of second-degree murder [are:] (1) [a] death, (2) caused by defendant's act, (3) with malice, and without justification." People v Mendoza, 368 Mich. 527, 534; 664 N.W.2d 685 (2003). However, "[m]anslaughter is murder without malice." Id. "Thus, to show voluntary manslaughter, one must show that the defendant killed in the heat of passion, the passion was caused by adequate provocation, and there was not a lapse of time during which a reasonable person could control his passions." Id. at 535. Although "provocation is not an element of voluntary manslaughter," "provocation is the circumstance that negates the presence of malice." Id. at 536.
In this case, the trial court instructed the jury on the elements of second-degree murder, stating:
To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that the defendant caused the death of [the victim]. That is, that [the victim] died as a result of being stabbed by the defendant. Second, that the defendant had one of these three states of mind: She intended to kill, or she intended to do great bodily harm to [the victim], or she knowingly created a very high-risk of death or great bodily harm, knowing that death or such harm would be the likely result of her actions. Third, that the killing was not justified, excused, or done under circumstances that reduce it to a lesser crime.Regarding manslaughter, the trial court instructed:
To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt: The crime of murder may be reduced to voluntary manslaughter if the defendant acted out of passion, or anger, brought about by adequate cause, and before the defendant had a reasonable time to calm down. For manslaughter, the following two things must be present: First, when the defendant acted, her thinking must've been disturbed by emotional excitement to the point that a reasonable person might have acted on impulse, without thinking twice, from passion instead of judgment. This emotional excitement must've been the result of something that would cause a reasonable person to act rashly or on impulse. The law does not say what things are enough to do this; this is for you to decide. Second, the killing, itself, must result from the emotional excitement. The defendant must've acted before a reasonable time had passed to calm down and return to reason. The law does not say how much time is needed; that is for you to decide. The test is whether a reasonable time passed under the circumstances of this case.The trial court's instructions properly distinguished second-degree murder from manslaughter.
Moreover, the jury could rationally determine that defendant's emotional excitement regarding the victim's new relationship or his treatment of defendant "would [not] cause a reasonable person to act rashly or on impulse." See People v Sullivan, 231 Mich.App. 510, 518; 586 N.W.2d 578 (1998) ("The determination of what is reasonable provocation is a question of fact for the factfinder."). And, even if the jury determined otherwise, it could also reasonably conclude that defendant did not act "before a reasonable time had passed to calm down and return to reason." See Maher v People, 10 Mich. 212, 224 (1862) (It is for the jury "to determine whether the time was reasonable under all the circumstances of the particular case.").
B. REMOVAL OF THE MENS REA ISSUE FROM THE JURY
Defendant primarily argues that the trial court improperly removed from the jury the determination of defendant's mens rea, and, therefore, violated her right to a jury trial. More specifically, defendant contends that "[g]iven the undeniable conflict between the mens rea requirements for second-degree murder and the lesser offense of manslaughter, it was a violation of defendant's right to a jury trial to remove the question of intent from the jury." Defendant argues that the relevant mens rea requirement is either "malice" for second-degree murder or "lack of malice" for manslaughter because a defendant acts in the heat of passion, caused by adequate provocation, and without "a lapse of time during which a reasonable person could control his passions." Mendoza, 468 Mich. at 527. Because the trial court failed to explain the applicable "mens rea," i.e., "malice" and "lack of malice," defendant suggests that it was impossible for the jury to decide which of those two intents applied in this case, leaving the jury with no choice but to convict her of second-degree murder.
Defendant is correct that the trial court never used the words "malice," "lack of malice," or "mens rea;" however, as already discussed, the trial court instructed the jury regarding those very concepts in plain language consistent with this state's Model Criminal Jury Instructions. See M Crim JI 16.5 (second-degree murder) and 16.9 (voluntary manslaughter as a lesser included offense of murder). As quoted above, the trial court's jury instructions explicitly distinguished second-degree murder from manslaughter, including the required mens rea. For these reasons, defendant's argument that she was deprived of her right to a jury determination on mens rea lacks merit.
C. CONFUSION OF MENS REA AND ACTUS REUS
Defendant also contends that the trial court sustaining the prosecutor's objection to defense counsel's proper argument meant that it endorsed the prosecutor's error confusing the mens rea and actus reus of second-degree murder. Defendant reasons that if these errors had not occurred, there was a reasonable likelihood that she would not have been convicted of second-degree murder. We disagree.
In closing argument, defense counsel argued:
But, if for some reason, we all being human, you just don't feel comfortable with self-defense, I think the only other option would be to find her guilty of manslaughter. Because, that's . . . when something happens in a heated - then, you're going to get instructions about that. That's exactly what manslaughter is, [l]adies and [g]entlemen, is in the heat of emotion, in the heat of anger or something, you do something and like wow, that's not what you intended to do, and so forth. There's not one thing here that points that [sic] [defendant] intended to seriously hurt [the victim], or put his life in jeopardy. Because, if you think so, she could've sliced him across his neck. She could've tried to hit him in the heart. As I indicated earlier, she could've hit him in his privates, because she was mad about his allegedly stepping out or whatever. This is probably one of the most benign places that she could've hit anybody. Still should not have done it, and whatever happened. But, that's basically where we're at.
Keep one other thing in mind. In this very, very same courthouse, not this particular courtroom, there was a gentleman that chopped up his wife, cut off her head, took her body parts, went out -
[The prosecutor:] Your Honor, I'm going to have to object. This is improper argument.
The court: Sustained.
* * *
[Defense counsel:] May I just conclude the legal point?
The court: Yes
[Defense counsel:] He was found guilty of second-degree murder -
The court: Well - no.
[Defense counsel:] - you (inaudible).
The court: [Defense counsel], I thought you meant your legal point, not someone else's.
[Defense counsel:] Okay. All right. Well, I'm going to back off of that.
The court: Disregard any other case.
As a result of this exchange, defendant contends that "[t]he trial court rejected defendant's comparative example of what could constitute manslaughter" and "endorsed as valid the prosecutor's position [that the fact that defendant] caused the [victim's] death could not constitute [m]anslaughter under the instructions they were about to receive." We do not share defendant's reading of this exchange. The only argument that the trial court directed the jury to disregard was defense counsel's comparison to an unrelated murder case, not defense counsel's argument related to why the jury should return a verdict of manslaughter if it did not accept defendant's self-defense claim.
Moreover, the trial court clearly instructed the jury that the lawyers' arguments were not evidence, but were "only meant to help [it] understand the evidence and each side's legal theories." The trial court also instructed the jury that it was the trial court's job, not the lawyers' job, to instruct the jury on the law, stating: "If a lawyer says something different about the law, follow what I say." Once again, the trial court's instructions clearly distinguished second-degree murder and manslaughter. And, even if defendant had actually presented us with a concrete example of the prosecutor's alleged confusion of mens rea and actus reus, that confusion would ultimately be harmless in light of the trial court's instructions to the jury, which the jury is presumed to have followed. People v Lane, 308 Mich.App. 38, 57; 862 N.W.2d 446 (2014).
Defendant provides no record citation to such a statement, MCR 7.212(C)(7), or any caselaw to support her argument. See People v Campbell, 329 Mich.App. 185, 191 n 3; 942 N.W.2d 51 (2019), quoting People v Kelly, 231 Mich.App. 627, 640-641; 588 N.W.2d 480 (1998) ("An appellant may not merely announce [her] position and leave it to this Court to discover and rationalize the basis for [her] claims, nor may [she] give only cursory treatment with little or no citation of supporting authority.").
Affirmed.