Opinion
337332
06-22-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JUDY KATHERINE HIGLEY-ZUEHLKE, Defendant-Appellant.
UNPUBLISHED
St. Clair Circuit Court LC No. 14-000467-FH.
Before: Brock A. Swartzle, P.J., and Mark J. Cavanagh and Anica Letica, JJ.
PER CURIAM.
Defendant, Judy Higley-Zuehlke, appeals as of right her jury-trial convictions of lying to a police officer in a criminal investigation, MCL 750.479c(2)(d)(i), concealing the death of an individual, MCL 333.2841(3), tampering with evidence, MCL 750.483a(6)(b), and second-degree murder, MCL 750.317. She was sentenced to 2 to 4 years' imprisonment for the lying to a police officer conviction, 18 to 60 months' imprisonment for the concealing the death conviction, 5 to 10 years' imprisonment for the tampering with evidence conviction, and 25 to 50 years' imprisonment for the second-degree murder conviction. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant's convictions arise from the death of the victim, John Allen, defendant's on-and-off-again boyfriend. In February 2014, the victim lived on St. Clair Street in Port Huron. Defendant previously lived with the victim at that home for some time. However, the victim's brother asserted that defendant was evicted from the home by the victim's mother. On the contrary, defendant claimed that she moved out because the family doubled her rent. Additionally, defendant claimed that the victim was an alcoholic and suffered from physical and mental health issues. Because of those issues, defendant claimed that she did not want to return to living in the victim's home despite his requests. Rather, defendant lived with William "Dale" Neumann, Jr., and served as his caretaker, but continued to see and maintain a friendship with the victim.
The victim was a quiet individual with a small circle of acquaintances. The victim worked at a country club in the summer performing lawn maintenance. During the winter, he performed snow removal for a few clients. The victim was renovating his home, including the repair of a staircase leading to the second level. Mark McDougal, the victim's boss at the country club, gave the victim advice on the materials and tools needed to perform the work and offered to help with the project. McDougal saw the victim and defendant at a home construction store on Saturday, January 25, 2014. Additionally, McDougal met with the victim at his home Wednesday, January 29, 2014, to discuss the project. While there, McDougal observed that the victim had a cheap, "dollar store" version of a hammer on his kitchen table. McDougal described it as being red fiberglass with a flat black paint over some of it. McDougal told the victim that the hammer was not appropriate for the project. Notably, this red and black hammer was never located following the victim's death. McDougal sat at a white Formica table and stayed at the victim's home until approximately 3:30 p.m. When shown photographs of the home after the victim's death, McDougal opined that the table had been replaced by another.
James Allen (James), the victim's brother, would often see the victim because he would either come into James's nearby store to buy something or walk by. James last saw the victim either Wednesday, January 29, 2014, or Thursday, January 30, 2014, before the Superbowl was played on February 2, 2014.
There was substantial snowfall during the weekend preceding the Superbowl. The victim's clients contacted James, alerting him that the victim had not cleared the snow. James tried to reach the victim but did not hear from him. On Monday, February 3, 2014, James entered the victim's home with a key and discovered the victim dead on the floor. James closed the door and called the police. Responding officers found no signs of forced entry and observed that the victim's body appeared to have suffered severe trauma, including a hole in the back of his head. A meat thermometer was found lying on a chair next to the victim's body. In a subsequent search, police found the victim's cell phone, but no text messages were present. The victim's hammer, wallet, and coin purse were not located inside his home.
Officer Jeremy Young was one of the responding officers, and after obtaining defendant's contact information from the victim's cell phone, he proceeded to call defendant. Young reported that when he called defendant and stated that he wanted to talk about the victim "John," defendant responded, "John who?" After giving the victim's full name, defendant "choked up" a bit "like she was crying" and said that she had a bad feeling that something had happened to him. Defendant agreed to come to the police station to talk.
This police interview was recorded, played for the jury, and admitted into evidence. Defendant claimed that she woke up Friday morning crying after having had a "terrible nightmare" that something bad had happened to the victim. After calling him and not receiving an answer, defendant went to victim's house, knocked on the door and when there was no answer, she left. Defendant proceeded to a pawn shop and pawned a necklace she owned, then went to Buscemi's for some beer before heading home. Officer Young did not inform defendant that the victim's death occurred from unnatural causes until 27 minutes into the interview and that leading up to that, defendant did not ask if the victim was okay or what had happened to him. Defendant was asked who might have harmed the victim, and she testified that she could not think of anyone. Rather, she questioned the general security of the neighborhood. Defendant was asked who would have the "opportunity" to harm the victim. She then mentioned Robert Card, Jr., albeit not by name, as the victim's next-door neighbor who helped move lumber and consumed drugs with the victim.
Officer Young could not get any clear responses from defendant regarding any interactions she may have had with the victim on January 30 and 31. Defendant also said that she lived with her boyfriend, Neumann, and that he was someone "she worked for" as a caregiver. Although she texted with the victim, she claimed to Young that it would be "too dangerous" to retain those texts on her phone. Indeed, to help conceal the victim's identity from Neumann, defendant had the victim's contact labeled as "Mrs. Cleary" on her phone. From defendant's statements, the last time she saw the victim would have been January 26, 2014.
This statement seemingly contradicted defendant's earlier representations in the interview regarding Neumann's ability to use a cellular telephone. At trial, Neumann testified that he was in a romantic relationship with defendant and that she received some form of "financial benefit" for being his caretaker because he suffered from cerebral palsy and grand mal seizures.
Neumann thought that defendant regularly cleaned the home of "Mrs. Cleary" for supplemental income.
Two days later, defendant was interviewed by the police again. Defendant reiterated that she had a dream that something bad had happened to the victim. In this interview, defendant admitted that when she went to the victim's house around 12:30 or 1:00 p.m. on Friday, January 31, she went inside and found the victim dead on the floor with a hole in the back of his head. She further noticed that the pool of blood behind his head was "steaming," as if the incident had "just happened." Defendant immediately knew that the victim was dead, panicked, and erased the text messages that were on the victim's cell phone. Defendant also thought she could use a "joint" to calm her nerves and looked for one. When that search proved unfruitful, she looked in the refrigerator for a beer, but again was unsuccessful. Defendant then left the premises and locked the door before heading to the Hock Shop. Defendant explained that she needed the money to pay rent.
Records from the cell phone provider showed that the only person the victim had texted with from January 1, 2014, onward was defendant. The two texted fairly regularly, if not daily. The last text messages were sent from defendant to the victim on January 31, 2014, at 12:24 p.m. and 12:29 p.m. The victim's last outbound text was from January 30 at around 4:00 p.m. The victim also had a landline phone that had an answering machine with caller identification (ID). It showed that the oldest entry in the caller ID log went back to January 31 at 12:14 p.m. and that defendant had called twice, with the same times she sent the texts to the victim at 12:24 p.m. and 12:29 p.m. on January 31.
Dr. Daniel Spitz, the chief medical examiner for St. Clair County, testified that the victim had been deceased for three to five days before he was discovered on Monday, February 3, 2014. The victim had suffered extensive trauma, including five distinct lacerations to the scalp; one of those was associated with a skull fracture. Dr. Spitz thought that a small, heavy, blunt instrument, like a hammer, could have caused those wounds. There also were signs that the victim had been strangled with hands or even something like a foot or knee. Additionally, the victim had several rib fractures, which likely were caused by kicks, punches, or being knocked into a solid structure. And notably, there was a puncture wound involving the victim's right inner ear into his brain that was a result of a "forceful insertion" of something. Dr. Spitz concluded that the meat thermometer was consistent with the type of instrument used for causing that wound. Dr. Spitz also opined that, although strangulation was the actual cause of death, contributory causes of death were the puncture to the ear and skull and the multiple blunt-force head injuries. He surmised that the blunt-force injuries probably occurred first, followed by strangulation, followed by the puncture to the ear after the victim was incapacitated.
Forensic testing on the edge of the meat thermometer revealed two DNA donors: John and Card. Defendant's DNA was not detected on the thermometer.
Among the damaging evidence against defendant was a purported confession she made while in jail. At some point in April 2014, defendant shared a cell in the St. Clair County jail with Maureen Thorpe and Cassandra Ross. Both Thorpe and Ross were unavailable to testify at trial, and the trial court found that the police had made reasonable efforts to obtain their presence, so their prior testimony was read into the record.
Ross testified that when defendant was first asked why she was in jail, defendant stated that she got caught in a love triangle. Ross explained that one day, after defendant returned from meeting with her attorney, defendant stated that she was going home because "they" could not prove anything. Defendant elaborated that there were too many drugs in "JB" and too many bumps and bruises on his body to prove anything. Ross denied reading any police reports pertaining to defendant's case.
Although Thorpe testified that defendant referred to the deceased person as "JR," Ross testified that defendant used the initials "JB." Notably, in her second interview with the police and at sentencing, defendant referred to the victim as "JR."
Thorpe testified that defendant admitted she and "JR" were lovers. Thorpe also stated that after defendant returned to the jail cell on one occasion, she was laughing and happy, saying that she had "gotten away with it." When Thorpe asked defendant if she really murdered JR, defendant responded, "Yeah, but they can't prove it." Thorpe was also asked what defendant said in response to some questions by Ross. Thorpe said that defendant stated that she "got away with it" and that JR "had so much drugs and alcohol in his system and broken bones that they couldn't prove when that had happened." Thorpe denied ever searching through defendant's belongings and denied ever reading any reports related to this matter.
During closing argument, the prosecutor argued that when defendant deleted the text messages from the victim's phone, she also removed any other signs of her involvement and that is why she left the meat thermometer behind-she knew that she did not handle it. The prosecutor also stressed that strangulation was the cause of death and that the thermometer did not strangle the victim. Instead, it was defendant's foot, knee, and hands that strangled the victim after she struck him with a hammer. In rebuttal, with regard to accomplice liability, the prosecutor stated that even if Card did kill the victim when he punctured the victim's ear, that does not mean that Card acted alone-the prosecutor maintained that defendant was there and that she struck the victim in the back of the head with a hammer. The jury convicted defendant on all four charges, including second-degree murder. And a few months later, in a separate trial, Card also was convicted of murdering the victim.
Defendant was originally tried and convicted of these same four charges in 2014. Defendant appealed to this Court in Docket No. 325079 and moved for remand based on newly-discovered evidence in the form of DNA evidence. Specifically, after defendant's first trial, it was learned that DNA from the meat thermometer matched Card, the victim's neighbor. After this Court granted a motion to remand, the trial court granted defendant's motion for a new trial. It is defendant's second trial, which occurred in January 2017, that is the subject of this appeal.
Card also appealed his conviction (Docket No. 340550).
After filing a claim of appeal in this Court in March 2017, defendant moved for a multiple remands and evidentiary hearings. The trial court denied defendant's requests for relief.Defendant now appeals.
Defendant moved for an evidentiary hearing, claiming that she was denied the effective assistance of counsel at several points during the proceedings. This Court granted the motion. People v Higley-Zuehlke, unpublished order of the Court of Appeals, entered March 1, 2018 (Docket No. 337332). After conducting an evidentiary hearing, the trial court denied defendant's motion for a new trial on the basis of ineffective assistance of counsel. Defendant thereafter again moved in this Court for a remand. Defendant sought a remand based on, among other things, a due-process violation because the prosecutor used inconsistent theories to convict both defendant and Card of the same murder. This Court granted the motion. People v Higley-Zuehlke, unpublished order of the Court of Appeals, entered January 23, 2019 (Docket No. 337332). After conducting an evidentiary hearing, the trial court denied defendant's request for a new trial, ruling that the theories presented at defendant and Card's separate trials were not significantly or drastically different and did not rise to the level of a due-process violation. After the conclusion of that remand proceeding, defendant filed a third motion to remand in this Court. Defendant asserted that the jail and court documents showed that both Ross and Thorpe did not have any legal holds requiring their incarceration at the time defendant made her purported confession to them. Defendant claimed that this suggested that both were placed in defendant's cell as government informants. Defendant also averred that those jail and court documents were inconsistent with Ross's explanations for when and why she was in jail at the time. Defendant further argued that those documents allowed an inference that Ross received special consideration related to her own pending criminal matter. This Court granted the motion in part, and remanded "for development of the factual record regarding defendant's claims that an informant was not incarcerated at the same time as defendant." People v Higley-Zuehlke, unpublished order of the Court of Appeals, entered July 3, 2019 (Docket No. 337332). Defendant moved for reconsideration, asking the Court to clarify that the order pertained to both Thorpe and Ross. This Court granted the motion. People v Higley-Zuehlke, unpublished order of the Court of Appeals, entered August 20, 2019 (Docket No. 337332). After conducting the evidentiary hearings, however, the trial court rejected defendant's claims of Brady v Maryland, 373 U.S. 83; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963), violations and perjury. The trial court rejected defendant's claim that Ross worked for the Drug Task Force during the relevant time period and further rejected her claim that Thorpe's medical condition had any bearing on Thorpe's discussions with the police. Furthermore, it denied defendant's motion for a new trial based on newly-discovered evidence of purported perjury by Thorpe and Ross. The trial court denied the motion for a new trial, primarily relying on the fact that, even in the unlikely event that Thorpe and Ross had read defendant's voluminous paperwork, it could not overcome the fact that they both learned information about broken bones, bruises, drugs, and alcohol from defendant herself because that information was not set forth in the documents.
II. ANALYSIS A. DUE PROCESS-INCONSISTENT THEORIES
Defendant first alleges that her due-process rights were violated when she and another person, Card, were convicted of murdering the same person on inconsistent theories. We disagree.
Defendant alleges that there was no evidence of any connection between herself and Card. However, Card lived next door to the victim, and defendant frequently visited the victim even after she no longer resided at the home. Neighbors observed defendant riding her bike to the victim's home. Additionally, in her first recorded interview with the police, defendant was asked who would have the opportunityto harm the victim. Defendant mentioned Card, albeit not by name, noting that he helped carry lumber into the victim's home and "borrowed" things from the victim. Additionally, defendant gave a statement to the police noting that Card was provided marijuana and beer for his assistance. Defendant claimed that the victim and Card engaged in crack cocaine use together but she did not participate. The contention that there was a complete lack of "connection" between defendant and Card was contrary to the record evidence. Although Card may not have been a contact in the victim's phone, it was evident that they knew each other.
The appellate court reviews constitutional issues de novo. People v Propp, 508 Mich. 374, 380; 976 N.W.2d 1 (2021). Additionally, a trial court's findings of fact are reviewed for clear error. People v Vaughn, 491 Mich. 642, 650; 821 N.W.2d 288 (2012).
The government's interest in conducting criminal prosecutions is not to merely obtain a conviction, but rather to see that" 'justice shall be done.'" People v Evans, 335 Mich.App. 76, 89; 966 N.W.2d 402 (2020), quoting Berger v United States, 295 U.S. 78, 88; 55 S.Ct. 629; 79 L.Ed.2d 1314 (1935). The United States Court of Appeals for the Eighth Circuit has held that "the use of inherently factually contradictory theories violates the principles of due process." Smith v Groose, 205 F.3d 1045, 1052 (CA 8, 2000). In Smith, a witness made wholly inconsistent statements of what occurred during a home invasion. In the first trial with one codefendant, the prosecution relied on the witness's statement that the victims were alive when the witness entered the home and that another codefendant admitted to killing the victims. Id. at 1047. In the separate trial of a codefendant, however, the prosecutor relied on the witness's contradictory statement that the victims were already dead when the witness arrived in the house. Id. at 1047-1048. The court concluded, "In short, what the State claimed to be true in [the first case] it rejected in [the second case], and vice versa . . . . This before/after distinction is the heart of the prosecutorial inconsistency that allowed the State to convict as many defendants as possible in a series of cases in which the question of timing was crucial." Id. at 1050-1051. Accordingly, "the use of inherently factually contradictory theories violates the principles of due process." Id. at 1052. The court noted that the situation presented was unusual and unlikely to occur often. Id. The court stressed that such inconsistencies, to constitute a due-process violation, "must exist at the core of the prosecutor's cases against defendants for the same crime." Id. Finally, the court declined to conclude "that prosecutors must present precisely the same evidence and theories in trials for different defendants." Id.
Michigan has not analyzed whether due process forbids convictions of multiple people for the same offense on inconsistent theories in a published decision. But given defendant's reliance on the federal Due Process Clause, it is appropriate for this Court to examine federal authority. See People v Fomby, 300 Mich.App. 46, 50 n 1; 831 N.W.2d 887 (2013).
In the instant case, defendant contends that her due-process rights were violated because the prosecutor presented two inconsistent theories: one at her trial, with her killing the victim, and a different one at Card's trial, with Card responsible for the killing, which resulted in convictions of both individuals for the same crime. The prosecutor commenced closing argument by generally stating that defendant was "involved" in the murder, before providing more detailed arguments:
[W]hen you consider [the meat thermometer's] location and you consider where it's placed and you consider the complete lack of connection to Ms. Higley in this case ask yourselves what she's doing. She's completely removing herself from that crime scene and she's completely removing that-herself from that crime scene for a reason. Why is that meat thermometer left behind, ladies and gentlemen? She knows she didn't touch it. She didn't need to do it to strangle him. She didn't need to do it to strike him in the back of the head with an instrument like a hammer or a crowbar.
* * *
The reason why she knows he's got a hole in his head is because she's the one that caused it.
* * *
I'm not going to get away from the fact that Robert Card's DNA is on that meat thermometer, but I want you to keep in mind what this Defendant did and what this Defendant said and remember that Doctor Spitz told you that John Allen died of strangulation. That meat thermometer didn't strangle John Allen. Judy Higley's foot, knee, and hands strangled John Allen after she struck him in the head with a hammer to incapacitate him it made it easier for her to complete those acts.
Additionally, the prosecutor argued to the jury that defendant did not merely find the victim at his home, but that she murdered him, left his body there, lied to cover up her role in the murder, and removed evidence to prevent being held accountable.
During rebuttal, the prosecutor added:
Maybe Robert Card did do it . . . . I never said [defendant] was the getaway driver. She was there. She was involved when he was struck in the back of the head. She struck him in the back of head and she got rid of the hammer that did it and she had the time and she had the opportunity to do it.
* * *
There is no doubt she committed the murder of John Allen.
At Card's trial several months later, the same prosecutor made the following arguments:
[T]he instrument . . . the DNA was found on, combine that with the testimony from Doctor Daniel Spitz, the Medical Examiner, the testimony is going to establish for you the murder weapon in this case was a meat thermometer.
* * *
This Defendant [Card] had opportunity, this Defendant had means, and this Defendant left his DNA behind. Why[?] Because this Defendant killed John Allen. John Allen died as a result of being strangled. Contributory causes being the puncture wound through the ear and blunt trauma to the head.
* * *
[I]n the end the evidence will be very clear to you that Robert Card did, in fact, kill John Allen and he did, in fact, intend to kill him.
* * *
When he [Card] comes home he comes out of the bathroom he's going like this with his hands (indicating). Why is he going like this with his hands, ladies and gentlemen[?] Because he just beat a man to death, that's why. Because he just rammed a meat thermometer though somebody's head, that's why. And that makes sense based on all the evidence that you have. They're fighting. They're in a dispute. Why[?] Because he's not being rational because he just murdered someone. [Emphasis added.]
We conclude that the differing arguments in the two cases do not constitute a constitutional violation. During closing argument, a prosecutor is entitled to argue all the facts in evidence and all reasonable inferences arising from those facts as they relate to a prosecutor's theory of the case. People v Lane, 308 Mich.App. 38, 63; 862 N.W.2d 446 (2014). In defendant's trial, the prosecutor contended that she murdered the victim by first incapacitating him with strikes from a hammer and then causing the victim's death by strangling him with her hands, knee, or foot. The prosecutor further submitted that defendant removed the hammer from the crime scene, and not the meat thermometer, because it correlated her to the victim's death. According to the prosecutor, the meat thermometer was irrelevant because it was not the instrumentality that defendant used to cause the victim's death. But in Card's trial, the prosecutor asserted that Card was the one who murdered the victim because the murder weapon was the meat thermometer. Both of these theories were within the realm of the evidence proffered by the medical examiner, Dr. Spitz. Although a single murder of the victim occurred, there were puncture and blunt trauma wounds to the back and front of the body, indicating that multiple sharp instruments were used. Dr. Spitz could not definitively delineate the manner in which the wounds occurred or the impact on the brain because of the degree of decomposition when the victim was discovered. However, Dr. Spitz surmised that the blunt-force trauma wounds seemingly occurred first to incapacitate the victim and to allow the puncture wound from the meat thermometer. Moreover, the jury was instructed that defendant could be convicted premised on an aiding and abetting theory.
In light of the multiple instruments used, the various traumatic wounds inflicted all over the victim's body, and the aiding and abetting theory presented to the jury, we cannot conclude that the prosecutor relied on inconsistent theories and deprived defendant of due process of law. Rather, the theories in these cases were legally consistent in light of the medical evidence. A consistent theory in both cases from the arguments made is that defendant attacked the victim with a hammer before strangling him. Additionally, the prosecution theorized that Card was present and "fought" with the victim and "beat" him while this occurred. Arguably, the victim was rendered incapacitated by the blunt-force trauma from a hammer and that incapacitation allowed Card to stab the victim in the ear with the meat thermometer. Notably, although Dr. Spitz opined that strangulation was the actual cause of death, he also testified that the stabbing through the ear was a contributory cause of death.
Indeed, the victim's body had superficial puncture wounds all over it, which Dr. Spitz opined could have been caused by the meat thermometer as well. Such puncture wounds would support the prosecution's theory that Card fought with the victim, assuming Card was the person who was wielding the meat thermometer the entire time. Also, the prosecutor's reference to Card "beat[ing]" the victim to death did not actually assert that Card was the one who used the hammer or blunt object. The evidence showed that the victim suffered many rib fractures that were the result of blunt-force trauma, resulting from kicks, punches, or being knocked into a solid structure. Thus, Card, without a hammer, still could have "beat[en]" the victim while defendant struck him with a hammer.
In assessing criminal liability for some harm, it is not necessary that the party convicted of a crime be the sole cause of that harm, only that he be a contributory cause that was a substantial factor in producing the harm. The criminal law does not require that there be but one proximate cause of harm found. Quite the contrary, all acts that proximately cause the harm are recognized by the law. [People v Bailey, 451 Mich. 657, 676; 549 N.W.2d 325 (1996), amended 453 Mich. 1204 (1996).]
The Bailey Court quoted with approval the following from a treatise:
"If a certain act was a substantial factor in bringing about the loss of human life, it is not prevented from being a proximate cause of this result by proof of the fact that it alone would not have resulted in death, nor by proof that another contributory
cause would have been fatal even without the aid of this act." [Id., quoting Perkins & Boyce, Criminal Law (3d ed), p 783.]
Further," '[t]wo persons acting independently may contribute to the death of another, so that each will be guilty of the homicide.'" Bailey, 451 Mich. at 677 (citations omitted).
Accordingly, the prosecutor was permitted to argue that both defendant and Card acted as the principal murderer in their respective cases. This does not make the theories "inconsistent" or deprive defendant of due process of law.
Moreover, unlike in Smith, this case does not present the scenario where two inconsistent statements were utilized to convict two different defendants of the same murder premised on contradictory theories. Smith, 205 F.3d at 1052.
B. ADMISSIBILITY OF PRIOR TESTIMONY
Defendant contends that the trial court erroneously allowed Ross's and Thorpe's prior testimonies to be read into the record. We disagree.
This Court reviews a trial court's finding that a witness was unavailable for clear error. People v Garland, 286 Mich.App. 1, 6; 777 N.W.2d 732 (2009). A finding is clearly erroneous, when although there is evidence offered in support, the reviewing court is left with a definite and firm conviction that a mistake has been made. People v Anderson, 341 Mich.App. 272, 277; N.W.2d (2022). The decision to admit evidence is reviewed for an abuse of discretion. People v Mullins, 322 Mich.App. 151, 166; 911 N.W.2d 201 (2017). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008).
An out-of-court statement offered to prove the truth of the matter asserted generally is inadmissible hearsay. MRE 801(c); MRE 802. However, hearsay statements can be admissible when the declarant is "unavailable." MRE 804. MRE 804(a)(5) defines an unavailable witness, in pertinent part, as one who
is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown.
And, MRE 804(b) allows for the admission of many hearsay statements from an unavailable witness, including
[t]estimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. [MRE 804(b)(1).]
Defendant first contends that the trial court's finding that both Thorpe and Ross were unavailable was clearly erroneous, specifically challenging the trial court's finding that the police had engaged in due diligence in attempting to locate them. We cannot conclude that the trial court clearly erred.
The test for whether a witness is "unavailable" as envisioned by MRE 804(a)(5) is that the prosecution must have made a diligent good-faith effort in its attempt to locate a witness for trial. The test is one of reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it. [People v Bean, 457 Mich. 677, 684; 580 N.W.2d 390 (1998).]
Due diligence means there is an attempt to do everything reasonable, not everything possible to secure the presence of a witness. People v Eccles, 260 Mich.App. 379, 391; 677 N.W.2d 76 (2004); People v Cummings, 171 Mich.App. 577, 585; 430 N.W.2d 790 (1988).
At the hearing on Thorpe's availability, Sergeant Christopher Frazier testified that the only address police had for Thorpe was not valid. After that, Frazier checked the CLEMIS system, but it produced the same invalid address. Then, by chance, Frazier came across an associate of Thorpe, who represented that Thorpe was living in Florida without any additional information. Frazier then searched through the Law Enforcement Information Network (LEIN) and the secretary of state records in Michigan and Florida, but no new addresses turned up. But Frazier did not check Michigan district court records.
CLEMIS is the acronym for the Court and Law Enforcement Management Information System. See <https://www.ojp.gov/ncjrs/virtual-library/abstracts/clemis-court-and-law-enforcemnt-management-information-system> (accessed June 13, 2023).
We reject defendant's assertion that the failure to check the district court records constitutes a lack of due diligence because had those records been reviewed, they would have shown Thorpe's Florida address. Sergeant Frazier was only required to engage in actions that were reasonable, not everything that was possible. Eccles, 260 Mich.App. at 391. The lower court record in this case demonstrates that Frazier undertook many reasonable steps to try to ascertain Thorpe's location. The fact that there might have been something else he could have done does not negate a showing of due diligence. See id. Consequently, we are not left with a definite and firm conviction that the trial court made a mistake. Moreover, because no district court records were admitted into evidence at the hearing, it is not evident that Thorpe's Florida address was contained in any district court record. Notably, defendant never argued in the trial court that the failure to review district court records demonstrated a lack of due diligence.
Defense counsel asked Sergeant Frazier about a district court record, but that record was never admitted into evidence at the hearing, nor were any of the details pertaining to Thorpe's address from that record read aloud at the hearing.
With regard to witness Ross, Sergeant Frazier described similar efforts. The police tried to locate Ross at her last known address, but were unsuccessful. Frazier noted that Ross "basically flops from house to house." He asked members of the Sheriff's Drug Task Force if they had any information related to Ross, but he received no leads. Later, Frazier learned of a possible current address for Ross, but that did not lead to a valid address. Checking CLEMIS, LEIN, and secretary of state records only resulted in the initial "bad" address the police had already eliminated. Again, it appears that Frazier did not check any district court records for Ross. Defendant's sole argument related to Ross is that Sergeant "Frazier's attempts to find Cassandra Ross were similarly uninspired" because "[h]e did not check the 72nd district court records and did not know that Ross had been arrested twice in 2015." For the same reasons as described with witness Thorpe, the trial court did not clearly err by finding that the police made diligent efforts to locate Ross. The failure to check district court records does not doom the good-faith diligent efforts the police made. See Bean, 457 Mich. at 684. And, there was nothing presented at that hearing to show that a review of those 2015 district court records would have provided the police with any information that may have been helpful in locating Ross in 2017.
Defendant also submits that she was denied the right to confrontation because neither Thorpe nor Ross was cross-examined about Card's DNA on the meat thermometer. We disagree. Because defendant did not raise this constitutional issue in the trial court, it is not preserved. See People v Heft, 299 Mich.App. 69, 78; 829 N.W.2d 266 (2012). Unpreserved constitutional issues are reviewed for plain error affecting defendant's substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). To succeed in her claim, defendant must show that an error occurred, the error was plain or obvious, and the error affected substantial rights. Id. at 763. An error affects substantial rights when it affects the outcome of the lower court proceedings. Id. The defendant bears the burden of persuasion with respect to prejudice. Id.
"A defendant has the right to be confronted with the witnesses against him or her." People v Yost, 278 Mich.App. 341, 369-370; 749 N.W.2d 753 (2008), citing U.S. Const, Am VI; Const 1963, art 1, § 20 and Crawford v Washington, 541 U.S. 36, 42; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004). "Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68.
The Confrontation Clause simply requires a prior opportunity for cross-examination. It does not require that the actual cross-examination be conducted or that it be conducted in any particular manner. See Crawford, 541 U.S. at 54-59, 68. In support of her position, defendant simply concludes that she was not permitted to confront Thorpe and Ross about any knowledge of Card's DNA match, citing Bean, 457 Mich. at 689-690. However, the Bean Court did not conclude that the right to confrontation is violated if the scope of cross-examination was different from what would have occurred had the witness testified at trial. Consequently, defendant's reliance on Bean is misplaced. And because we have determined that the good-faith or due-diligence standard was satisfied, any harmless-error analysis is unwarranted.
Defendant asserts she was denied the right to confrontation because she was not allowed to confront Thorpe and Ross about Card's DNA. Card's DNA was only detected by a forensic scientist, and it is difficult to discern how Thorpe or Ross would have any personal knowledge about Card's DNA or its presence on the meat thermometer. Indeed, the realization of the correlation between the DNA on the meat thermometer was not learned before defendant's first trial. And if they did have such knowledge, it would had to have come from defendant's own admissions, which would necessarily implicate her.
C. NEW TRIAL-NEWLY DISCOVERED EVIDENCE
Defendant next contends that the trial court erred when it denied her motion for a new trial on the basis of newly discovered evidence that Ross's and Thorpe's testimonies were perjurious as read into the record at defendant's jury trial. We disagree.
A trial court's decision on a motion for a new trial is reviewed for an abuse of discretion. People v Johnson, 502 Mich. 541, 564; 918 N.W.2d 676 (2018). Any factual findings made by the trial court are reviewed for clear error. Id. at 565.
For a defendant to succeed on a motion for a new trial on the basis of new evidence, she must show that
(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial. [People v Cress, 468 Mich. 678, 692; 664 N.W.2d 174 (2003) (quotation marks and citations omitted).]
The trial court did not err by concluding that the first three Cress elements were satisfied. Therefore, the remaining issue is the fourth Cress requirement, i.e., whether "the new evidence makes a different result probable on retrial." Id.
"In order to determine whether newly discovered evidence makes a different result probable on retrial, a trial court must first determine whether the evidence is credible." Johnson, 502 Mich. at 566-567. But this credibility determination is not the trial judge's personal determination-it is focused on whether a reasonable juror could find the testimony credible on retrial. Id. at 567. That is, "[i]f a witness's lack of credibility is such that no reasonable juror would consciously entertain a reasonable belief in the witness's veracity, then the trial court should deny a defendant's motion for relief from judgment." Id. at 568. Here, the trial court implied that Ross was not credible when it stated that her testimony at the evidentiary hearing "was far from stellar" and "not consistent with her statements to the investigator." Regardless, the trial court continued with the Johnson analysis and concluded that despite these credibility concerns, Ross's testimony from the evidentiary hearing was "strikingly similar" to her previous testimony. Accordingly, because, the new evidence was not exculpatory, a different result was not probable on retrial.
We cannot conclude that the trial court's factual findings were clearly erroneous. Johnson, 502 Mich. at 565. It is well established that courts are to view recantations with great suspicion. Id. at 578; see also People v Barbara, 400 Mich. 352, 362-363; 255 N.W.2d 171 (1977) (noting that newly discovered evidence in the form of recantation testimony "has been traditionally regarded as suspect and untrustworthy"); People v Van Den Dreissche, 233 Mich. 38, 46; 206 N.W. 339 (1925) ("[R]ecanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true . . . . There is no form of proof so unreliable as recanting testimony.") (quotation marks and citations omitted). Significantly, unlike in Johnson, there is no record evidence to support Ross's recantation. See Johnson, 502 Mich. at 578.
Although Ross testified at the hearing that she and Thorpe went through defendant's paperwork and read it, that new "fact" does not explain how she and Thorpe obtained details of the crime, such as the victim having bumps, bruises, and broken bones all over him, because those details were not contained in the police reports. Indeed, at the evidentiary hearing, Ross confirmed that her knowledge of the condition of the victim's body came directly from defendant. Further, although Ross now maintains that defendant never admitted to killing the victim, Ross nonetheless stated that in response to being asked if she "did it," defendant laughed and said that "they can't prove it." Importantly, in her previous testimony, Ross provided a near verbatim telling of this event. The main difference was that at trial, Ross stated that she and Thorpe viewed defendant's response as an admission that she killed the victim. But at the evidentiary hearing, Ross asserted that defendant's statement did not mean that she killed the victim. This distinction in Ross's testimony does not make a different result on retrial likely. The pertinent evidence here is defendant's statement. Ross's and Thorpe's interpretations of that statement were wholly irrelevant. It was a matter for the jury to decide what defendant meant when she said what she said. Accordingly, Ross's new opinion regarding what defendant meant when she laughed and said "they can't prove it" has no bearing on what a reasonable juror would conclude. Finally, defendant asserts that Ross's recent testimony that defendant never mentioned the victim's name is pertinent. But, again, that is consistent with Ross's prior testimony. In both instances, Ross referred to the victim as "JB." As such, this argument has no merit.
Citing Johnson, defendant submits that all the evidence that would be presented on retrial is to be considered when deciding whether a different result would be probable. Defendant maintains that this evidence at the new trial would include testimony from Thorpe that the police instructed her to deny reviewing defendant's paperwork. However, there is nothing in the lower court record to indicate that Thorpe, who lived in Florida, would attend a new trial. Importantly, after appointed counsel advised Thorpe of the risks of altering her testimony, Thorpe failed to cooperate with defendant in this matter. The clear implication is that Thorpe would not testify at a new trial.
Regarding Thorpe, defendant also asserts that evidence would be introduced that she was "manic" on the day she spoke with police officers on April 15, 2014. At the evidentiary hearing, defendant admitted an exhibit, labeled "Secure Inmate Lookup" for Thorpe. Defendant evidently is relying on the following entry:
4/15/14 INMATE THORPE WAS FOUND TO HAVE 2 EXTRA SHEETS THIS DATE DURING RANDOM CELL SEARCHES. INMATE WAS ADVISED THIS IS AGAINST POLICY AND WAS ISSUED EXTRA CLEANING BY USD AND DEPUTY SURGENER. GILES 4/15/14 INMATE RECEIVED 5 GAUZE
PADS THIS DATE FROM LPN SCOTT. GILES 4/18/14 INMATE SEEN AS REQUESTED BY MEDICAL, PRESENTS MANIC AND GAVE INFORMATION TO MEDICAL FOR RECOMMENDATIONS. PJOHNSON CMH [Bold emphasis added.]
Defendant's position is unsupported by the record. The exhibit she relies on shows that this particular portion of the document consists of three different entries, two for April 15 and one for April 18. Thorpe's "manic" episode occurred on April 18, 2014, not April 15, 2014. Accordingly, because this episode occurred several days after Thorpe talked to the police on April 15, 2014, it is presumably of little relevance and would not be admissible. See MRE 401. Similarly, defendant also asserts that Thorpe's history of drug abuse would be admissible, but without evidence that Thorpe's past drug use was affecting her ability to think on the day she spoke with the police, it is not evident that evidence of that drug use would be admissible either.
Consequently, the trial court did not abuse its discretion by denying defendant's motion for a new trial on the basis on newly discovered evidence in the form of Ross's recent testimony.
D. ADMISSIBILITY OF AFFIDAVIT
Defendant also alleges that the trial court erred by determining that Thorpe was not unavailable because defendant had not exercised due diligence in obtaining Thorpe's attendance. We disagree.
This Court reviews a trial court's ultimate decision to admit or reject evidence for an abuse of discretion, Mullins, 322 Mich.App. at 166, but its finding that a witness was unavailable is reviewed for clear error, Garland, 286 Mich.App. at 6.
At the evidentiary hearing, defendant sought to admit into evidence an affidavit executed by Thorpe. Defendant attempted to procure Thorpe's attendance at the hearing by serving a Michigan subpoena on her at her residence in Florida. There also were arrangements made that Thorpe's travel expenses would be covered. Relying on Manfredi v Johnson Controls, Inc, 194 Mich.App. 519, 522-523; 487 N.W.2d 475 (1992) (stating that out-of-state witnesses were not subject to Michigan's subpoena power), the trial court ruled that because Thorpe was not subject to the Michigan subpoena while in Florida, defendant failed to establish that Thorpe was unavailable under MRE 804(a). Under MRE 804(a)(5), a witness is "unavailable" when, among other things, the witness
In the affidavit, Thorpe averred that contrary to her prior testimony in this case: (1) she and Ross had read through defendant's paperwork, including the police report, (2) defendant never said that she killed the victim and always maintained her innocence, (3) the detectives wanted Thorpe to say that defendant confessed, and (4) the detectives instructed Thorpe to deny that she had read defendant's paperwork.
is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under
subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown.
Defendant submits that due diligence does not require a valid court subpoena. This is true because the rule clearly contemplates that the witness is to be procured "by process or other reasonable means." But in this instance, Thorpe is not just a typical witness. Thorpe's proffered testimony would be an admission that she lied while testifying under oath in the earlier murder proceeding, subjecting her to the crime of perjury, MCL 750.422. Despite this clear ramification, defendant has merely asked Thorpe to, of her own volition, come to Michigan to testify. Although steps were taken to pay for Thorpe's travel, that alone hardly seems like a reasonable, equivalent alternative to process. Additionally, because this is a criminal case, the rule requires "due diligence." As defendant acknowledges, due diligence means "doing everything reasonable, not everything possible." People v Moreno, 112 Mich.App. 631, 637; 317 N.W.2d 201 (1981); see also Ickes v Korte, 331 Mich.App. 436, 443; 951 N.W.2d 699 (2020) ("[D]ue diligence means undertaking reasonable, good-faith measures under the circumstances, not necessarily undertaking everything possible."). Under these particular circumstances, it was imperative for defendant to compel Thorpe to attend and not merely leave it to Thorpe's own discretion. Thorpe would be subjecting herself to perjury if she testified similarly to what was represented in the affidavit. It seems evident that it would be a rare person who would willingly attend under those circumstances. Therefore, although MRE 804(a) allows for alternate methods to procure a witness's attendance aside from process, in this instance, with defendant having done nothing to actually compel Thorpe's attendance, the trial court did not clearly err by finding that Thorpe was not unavailable under MRE 804(a)(5).
In the trial court, defendant argued that Thorpe, in Florida, was subject to the Michigan subpoena, but she has apparently abandoned that argument on appeal.
But even assuming the trial court erred in its unavailability determination, reversal would not be required because MRE 804(b)(3), the rule of evidence defendant relied on to admit the affidavit, also provides that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." (Emphasis added.) In this instance, the statements in the affidavit, on their face, would not expose Thorpe to criminal liability; it was only with knowledge of her prior contradictory testimony that the recent statements have the potential to expose her to criminal liability. There is no indication that Thorpe was informed of this potential at the time she signed the affidavit. It was only afterward, when she consulted with a Michigan attorney, that she was fully apprised of the risks of perjury. With Thorpe ceasing any cooperation after this consultation, the trustworthiness of the affidavit is particularly called into question. Accordingly, there are no corroborating circumstances that clearly indicate that the statement was trustworthy, and affirmance is warranted on this ground as well.
Defendant abandoned the argument relying on MCL 767.91 by simply failing to address it. People v Kelly, 231 Mich.App. 627, 640-641; 588 N.W.2d 480 (1998).
E. BRADY VIOLATION
Lastly, defendant contends that she is entitled to a new trial because the prosecution failed to disclose certain impeachment evidence pertaining to key witnesses Ross and Thorpe. We disagree. We review a trial court's ultimate decision on a motion for a new trial for an abuse of discretion, but the court's underlying factual findings are reviewed for clear error, and its constitutional determinations are reviewed de novo. People v Dimambro, 318 Mich.App. 204, 212; 897 N.W.2d 233 (2016).
"A criminal defendant has a due process right to obtain exculpatory evidence possessed by the prosecutor if it would raise a reasonable doubt about defendant's guilt." People v Cox, 268 Mich.App. 440, 448; 709 N.W.2d 152 (2005); see also Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963). In order to establish such a due-process violation, a defendant must prove that "(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." People v Chenault, 495 Mich. 142, 150; 845 N.W.2d 731 (2014). This applies to evidence within the government's control, even if it was unknown to the prosecution. Id. Evidence is favorable to the defense when it is either exculpatory or impeaching. Id., citing Giglio v United States, 405 U.S. 150, 154; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972). Evidence is "material" if, had the evidence been disclosed to the defense, there is a reasonable probability that the result of the proceeding would have been different. Chenault, 495 Mich. at 150. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quotation marks and citation omitted).
The record reveals that Ross was arrested in June 2013 for possession of methamphetamine. Ross indicated she wanted to "work off" the charge and was referred to the St. Clair County Sheriff's Drug Task Force (DTF) to potentially have that pending charge dismissed. In particular, Ross offered to buy components for "one-pot" methamphetamine concoctions and provide the names of the cooks. But because Ross did not follow through, in December 2013, the DTF decided that Ross should be charged. A person from the sheriff's department sent an e-mail to the Port Huron Police Department with this information. In January 2014, Officer Young submitted a request to the prosecutor to charge Ross in connection with Ross's June 2013 arrest.
Defendant argues that her rights were violated when the prosecutor never disclosed the fact that Ross had offered to assist the police. The trial court did not err in concluding that a mere offer to work "is immaterial and meaningless unless [the person] actually [does] something and work." Dimambro, 318 Mich.App. at 212. Defendant has cited no authority for the proposition that a person's past willingness to act as an informant for the police, standing alone, is evidence that the person may be biased toward the prosecution or the police, even if they had not actually acted as an informant. The inherent danger of the testimony of informants is that the informants may be receiving something for their cooperation or testimony, which can introduce bias. See M Crim JI 3.6(3)(f) (jury instruction allowing jury to consider if a witness has been given any promises); Robinson v Mills, 592 F.3d 730, 737 (CA 6, 2010) (noting that jurors frequently do not trust criminals who "sell out," i.e., sell their testimony for some benefit). In this instance, Ross was not an informant at the time of defendant's trial, and Ross had not received anything in exchange for her cooperation. Accordingly, we agree with the trial court that the evidence that Ross had offered to be an informant, yet did not follow through on that offer, was not favorable to the defense.
Moreover, assuming that the evidence possessed some impeachment value, its value would be so slight as to not have a reasonable probability of affecting the outcome of the proceeding had it been introduced. Accordingly, the trial court did not err by finding no Brady violation with respect to Ross.
With respect to Thorpe, defendant submits that the prosecutor should have disclosed an internal jail report purportedly showing that Thorpe had a history of mental illness, was suffering from drug withdrawal, and was "manic" on the day she met with detectives. As already discussed, defendant's claim that Thorpe was "manic" on the day she spoke with the police is belied by the record. The date for her reporting as manic was listed as April 18, 2014, three days after she spoke with the police. Further, there is no evidence that Thorpe was suffering from withdrawal symptoms at the time she spoke with police on April 15. The record shows that Thorpe was admitted to the jail on March 27 and that same day was placed on medical lockdown due to withdrawal symptoms. But the record also shows that Thorpe was released from that medical lockdown on April 1. Therefore, two weeks had passed by the time Thorpe spoke with detectives in the instant case. Defendant offers no explanation why a condition from two weeks earlier would be pertinent to judge Thorpe's credibility at the time she spoke with officers on April 15. As the trial court properly determined, "[t]his evidence is simply not material impeachment evidence." Further, had this internal jail record been disclosed to defense counsel, there is not a reasonable probability that the outcome of the trial would have been different. As a result, the trial court did not err when it found no Brady violation and denied defendant's motion for a new trial.
Affirmed.