Opinion
364999
06-20-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LARRY MINTER, JR., Defendant-Appellant.
UNPUBLISHED
Kent Circuit Court LC No. 22-000738-FH
Before: RICK, P.J., and JANSEN and LETICA, JJ.
PER CURIAM
Following a jury trial, defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84. He was sentenced as a fourth-offense habitual offender, MCL 769.12(1)(a), to serve 25 to 75 years' imprisonment. Defendant appeals as of right, and we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
The victim and defendant were in a relationship for three or four months. Defendant engaged in cocaine use and was delusional when he took drugs. In mid-November 2021, the victim and defendant were riding in a car together when defendant accused the victim of working with the police. She left the car and contacted her mother, CJ, for a ride home. When CJ dropped the victim off at her home, the victim had no apparent physical injuries. Defendant was not at home when the victim arrived. The victim washed the dishes before leaving to spend time with her daughter. When the victim returned home, she found defendant was engaged in drug use. Because the victim knew "how he is when he gets high," she took it as her "cue" to leave. The victim sent defendant a text message asking that he notify her when he was finished and went back to visit her daughter. After defendant let the victim know that he was done, the victim returned home.
The victim was the mother of two daughters, a 13-year old who was in the custody of CJ, the victim's mother, and an 8-year old who was in the custody of her biological father.
The victim found defendant sitting in the dark at the kitchen table, staring out the window. The victim proceeded to the bedroom. Defendant entered, sat next to the victim, played with a knife, and accused her of working with the police. Although the victim denied his allegation, defendant threatened to kill her. Defendant then got on top of the victim and began to stab her in the arm, leg, and face. The victim struggled and screamed to prevent defendant from dragging her out of the bedroom. After defendant apparently saw the victim bleeding, he put on his coat and left the home.
The victim was sobbing when she called 911, and told the operator that her "boyfriend" tried to kill her. Responding to the 911 operator's questions, the victim stated that her boyfriend assaulted her by stabbing her in the forehead and that she needed an ambulance. After being repeatedly asked to provide her assailant's name, the victim said, "Larry." When pressed further to provide a last name, the victim did not reveal it, repeatedly stating that she was scared and that he was going to come back and kill her.
The 911 call recording was admitted at trial. Specifically, the victim advised the operator that "my boyfriend tried to . . . kill me."
The police and paramedics arrived at the victim's home. A knife blade that was missing a handle was discovered in the bed and syringe needles filled with a brown liquid were found in the bedroom trash can. A blood trail from the bedroom led to the kitchen where drug paraphernalia was found on the table.
The responding officers spoke to the victim. The victim disclosed that her assailant's name was "Larry," but failed to provide a last name after being asked multiple times. Instead, the victim again expressed concern for her safety and that her assailant would return. But, mail addressed to defendant was located on the nightstand near the bed where the victim was seated. The victim was taken to the hospital.
After the victim's release from the hospital, she attempted to recant her identification of defendant as her assailant. When defendant was arrested nearly a month after the assault, he was found with the victim at her home. The two continued to communicate while defendant was in jail. In the recorded jail phone calls, defendant told the victim to stick to "the script." The victim admitted that, after defendant was arrested, they created a plan in which the victim would tell investigators a false, scripted story. The victim would admit to engaging in prostitution and tell police officers that her attacker had been a client who reacted violently after she attempted to steal drugs from him. During the jail calls, the couple also expressed their love for each other. The victim further agreed to assist defendant with obtaining a tether and provided funds for his bond.
The victim testified at the preliminary examination after being arrested on a material witness warrant. And she did not appear for the first day of trial. When reached by phone, the victim represented that she would be at court shortly, she but did not arrive. The prosecutor was preparing to establish the foundation to admit the victim's preliminary examination testimony when the victim appeared at trial. The victim admitted that she did not want to testify. The trial court twice instructed the victim to speak up and answer the questions, and she expressed dismay at the number of questions posed by the prosecutor. At trial, the victim testified that defendant caused her injuries by stabbing her in the arm, leg, and face with a knife. The victim denied sending text messages to defendant's phone that her accusations against him were false. Rather, the victim testified that defendant used her phone to type and send those text messages. The victim stated that she was scared that defendant would come back and kill her and her children.
But, on cross-examination, the victim testified that she was not afraid when she visited defendant in jail, placed money in his jail account, and paid a portion of his attorney's fees. She could not recall if she sent any exculpatory text message to defendant's phone. The victim denied the allegation that her injuries were caused by an angry customer when the victim was working as a prostitute. She admitted that if she recanted any statements attributing her injuries to defendant it was designed to have him return home. Despite the contradictions in the victim's testimony, the jury convicted defendant as charged.
II. RIGHT TO CONFRONTATION
Defendant first alleges that the trial court's interruption of defense counsel's cross-examination when questioning the victim's prior false claims violated his constitutional right to confrontation. We disagree.
"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal. People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001). When a ruling excludes evidence, it is incumbent upon the party seeking admission to make an offer of proof, and error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected. People v Witherspoon, 257 Mich.App. 329, 331; 670 N.W.2d 434 (2003). See also MRE 103(a)(2) ("Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of the party is affected, and [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer [of proof] or was apparent from the context within which questions were asked."). Absent an offer of proof, there is no showing that excluded evidence even exists, the evidence is speculative, and there is no basis to conclude that a defendant was denied the right of confrontation. People v Arenda, 416 Mich. 1, 14; 330 N.W.2d 814 (1982); see also People v Hampton, 237 Mich.App. 143, 154; 603 N.W.2d 270 (1999) ("Because defendant did not make an offer of proof at trial regarding the substance of [the] excluded testimony, MRE 103(a)(2), we are unable to conclude that the exclusion of [this] testimony affected defendant's substantial rights. MRE 103(a).").
Our quotation of MRE 103 is to the version in effect at the time of trial, not the recent amendments.
On cross-examination of the investigating detective, defense counsel asked, "Fair to say that the - - that [the victim] lied a number of times to you during your investigation?" The trial court asked the parties to approach the bench, and the bench conference was not delineated in the record. When the record resumed, the trial court addressed the jury, stating, "I'm going to ask you to disregard that last question. Whether someone is lying or telling the truth, that is a question of fact for . . . you folks as jurors to decide. The opinion of someone who is testifying is not relevant with regards to those matters." Defense counsel did not object to the ruling excluding evidence or make an offer of proof then or later when the jury was excused. Because defendant did not make an offer of proof, we cannot conclude that his substantial rights were affected by the exclusion. Arenda, 416 Mich. at 14; Hampton, 237 Mich.App. at 154. This claim of error does not entitle defendant to appellate relief.
On appeal, appellate counsel contends that the trial court's ruling was erroneous because the question posed did not ask for the investigating detective's opinion only "lies told." Yet, in the trial court following the bench conference, defense counsel did not seek to limit the broadness of the question posed or eliminate any potential commentary on the truthfulness of the victim's testimony; rather, trial counsel accepted the trial court's ruling. Further, trial counsel did not ask the investigating officer to delineate contradictions made by the victim during the criminal probe of her stabbing. Appellate counsel's analysis of what trial counsel intended by the question is not supported by the record evidence.
III. HEARSAY
Defendant next asserts that the trial court erred by allowing CJ, the victim's mother, to interject hearsay into evidence at trial. We disagree.
A defendant must preserve an issue by raising it before the trial court. People v Swenor, 336 Mich.App. 550, 562; 971 N.W.2d 33 (2021). This requirement applies to both constitutional and nonconstitutional issues. Id. "When a party raises a separate argument on appeal than the party raised before the trial court, the party must satisfy the standard for plain-error review." Id. In the trial court, defendant did not object to CJ's testimony addressing the victim's fear. This issue is unpreserved.
This Court reviews unpreserved issues of constitutional error for plain error affecting a party's substantial rights. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999); People v Lowrey, 342 Mich.App. 99, 108-109; 993 N.W.2d 62 (2022). An error is plain if it is clear or obvious, and it affects substantial rights if it influenced the outcome of the lower court proceedings. Carines, 460 Mich. at 763. Additionally, reversal is only warranted if a defendant has shown actual innocence or that the error seriously affected the fairness, integrity, or public reputation of the proceedings. People v Davis, 509 Mich. 52, 67-68; 983 N.W.2d 325 (2022).
MRE 801(c) defines hearsay as 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."
Again, our quotation of MRE 801(c) is to the version in effect at the time of trial.
During the trial, CJ confirmed that she dropped off the victim at the victim's home hours before the assault. The prosecution asked CJ if the victim appeared fearful of anyone at that time. CJ responded that the victim told her that defendant tended to lose control of himself when they argued.
CJ answered, "She had talked of his behavior when they fight. She said he can get - - I don't know what's the right word, just - - just didn't control anything. I don't know how to explain." There was no objection to this answer.
Although defendant contends that this statement constituted inadmissible hearsay, the prosecutor did not seek to admit the victim's statement addressing her relationship with defendant. Rather, the prosecutor's inquiry was designed to determine whether the victim was fearful or apprehensive about entering her home. The prosecution did not ask CJ to repeat what the victim said about defendant, and CJ technically gave a nonresponsive answer to the question posed. In other words, the question was intended to ascertain CJ's opinion regarding the victim's state of mind. The statement was not elicited to prove the truth of the stated content, namely that defendant tended to lose control of himself. And, even accepting defendant's argument that hearsay was erroneously admitted, we nevertheless would conclude that defendant failed to establish he is entitled to relief Davis, 502 Mich. at 67-68.
Within the discussion of this issue, defendant further claimed that the error was exacerbated by the expert witness testimony regarding control, constituted improper character evidence, and trial counsel was ineffective for failing to object. These issues were not raised in defendant's statement of question presented, and therefore, are not properly presented. See MCR 7.212(C)(5); Lowrey, 342 Mich.App. at 119 n 5.
IV. INCOMPLETE RECORD
Lastly, defendant asserts that omissions in the lower court record violated his constitutional right to an appeal. We disagree.
Once again, unpreserved claims of constitutional error are reviewed for plain error. Carines, 460 Mich. at 763. "In every criminal prosecution, the accused shall have the right . . . to have an appeal as a matter of right, except as provided by law . . . and . . . to have such reasonable assistance as may be necessary to perfect and prosecute an appeal." Const 1963, art 1, § 20. The appellant must provide this Court with the lower court record, People v Elston, 462 Mich. 751, 762; 614 N.W.2d 595 (2000), and file all transcripts in the lower court record, MCR 7.210(B)(1)(a). Generally, this Court will not consider issues for which the appellant failed to produce the transcript. People v Dunigan, 299 Mich.App. 579, 587; 831 N.W.2d 243 (2013). Regarding the court reporter's duties, MCR 8.108(B)(1) states:
The court reporter or recorder shall attend the court sessions under the direction of the court and take a verbatim record of the following:
(a) the voir dire of prospective jurors;
(b) the testimony;
(c) the charge to the jury;
(d) in a jury trial, the opening statements and final arguments;
(e) the reasons given by the court for granting or refusing any motion made by a party during the course of a trial; and
(f) opinions and orders dictated by the court and other matters as may be prescribed by the court.
When trial courts use audio or video recording equipment, they must adhere to the audio and video recording operating standards published by the State Court Administrative Office. MCR 8.109(B). "The courts of this state have held that the inability to obtain the transcripts of criminal proceedings may so impede a defendant's right of appeal that a new trial must be ordered." People v Horton (On Remand), 105 Mich.App. 329, 331; 306 N.W.2d 500 (1981) (citation omitted). Consequently, when a lack of transcripts renders a review of the regularity of the proceedings impossible, a new trial must be ordered. Id. However, a defendant's right to appellate review is satisfied if the surviving record is sufficient to allow an evaluation of defendant's claims on appeal. People v Audison, 126 Mich.App. 829, 834-835; 338 N.W.2d 235 (1983). The record's sufficiency depends on the questions that may be asked of it. Id. at 835. For example, a vague transcript that cannot address a critical issue in a case may require a new trial as a remedy. See People v Craig, 342 Mich.App. 217, 232-233; 994 N.W.2d 792 (2022).
Defendant identifies nearly 40 instances in the transcripts where inaudible portions occurred, 14 of which occurred during the victim's testimony. Defendant contends that he will be severely prejudiced by the faulty recording if and when this Court finds it necessary to make a harmless-error or prejudice determination.
We have carefully examined the omissions cited by defendant and have determined that they largely entail one or a few words omitted at a time, not large portions of the record. See id. Overall, we discern no evidence that these omissions rendered the record insufficient to allow an evaluation of defendant's claims on appeal. See Audison, 126 Mich.App. at 834, 835. Moreover, in many of these instances, the content of the omitted words can be readily ascertained by the surrounding questions and answers. Defendant has failed to establish that the omissions and audio issues at trial impeded his right to appeal.
We also note that MCR 7.210(B)(2) sets forth a procedure to settle the record when a transcript is unavailable. Although defendant protests essentially the sufficiency of the record given the inaudible portions he identified, he failed to seek settlement of the record in the trial court to resolve them.
Affirmed.