Opinion
360860
08-31-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NATALIE CHRISTINA NELSON, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-008280-01-FH
Before: Gadola, P.J., and Borrello and Hood, JJ.
PER CURIAM.
Defendant appeals as of right her jury trial convictions of felonious assault, MCL 750.82; possession of a firearm in commission of a felony (felony-firearm), MCL 750.227b; and domestic violence, MCL 750.812. Defendant was sentenced to three years' probation for her felonious assault conviction, two years' imprisonment for her felony-firearm conviction with 169 days jail credit, and 93 days, time served, for her domestic violence conviction. For the reasons set forth in this opinion, we affirm the convictions and sentences of defendant.
I. BACKGROUND
This appeal arises from an assault that occurred between defendant and the victim who were living together as boyfriend and girlfriend at the time of the incident. On September 10, 2019, defendant, after arriving home from an outing with her daughter, approached the victim, asking to use his phone. While using the victim's phone, defendant saw the victim had a call from his cousin, who was allegedly a child molester. Defendant, upset and concerned that the victim had been speaking to his cousin, began questioning and arguing with the victim. The victim alleged defendant grabbed him by the neck, scratched him, attempted to hit him, and threw an ashtray at him. Defendant alleged the victim pushed her, jumped on her, choked her, and said: "Don't ever ask me about my f***ing cousin ever again. I will kill you."
As defendant and the victim were arguing, defendant's son entered defendant's bedroom and began arguing with the victim. Defendant alleges the victim pushed defendant into her bed railing and then began packing his clothes. Defendant repeatedly told the victim to leave, eventually grabbing a gun she had in the bedroom. The victim finished packing and with defendant following him, hurried down the stairs to the front door, where defendant allegedly kicked him in the back. The victim reported the altercation to the Detroit Police Department the next day.
The same day of the incident, defendant went to the hospital to be treated for pain in her neck, back, and thighs. Defendant asked her daughter to take photographs of the bruises on her thighs. One day after leaving the hospital, defendant went to speak with the victim's father at his home. The next day, defendant went to the police station and reported the altercation with the victim. Eventually, charges were filed against defendant.
During voir dire, a juror indicated she had been a victim of domestic violence or an assault with a weapon and admitted to having a bias against defendants who perpetrated violence against children, but affirmed she could set aside her experiences, judge the case based on the evidence presented, and be equally fair to the prosecution and defendant. Defense counsel and the prosecutor made no challenges for cause; however, defense counsel used all preemptory challenges to excuse jurors-not including the allegedly biased juror.
During trial, the prosecution's case-in-chief centered on the theory defendant unreasonably brandished a gun at the victim because he was taking too long to leave the house, not because defendant was acting in self-defense or in defense of her children. The victim denied he ever choked defendant and alleged defendant was the main aggressor during the altercation.
At trial, defendant argued she acted in self-defense of herself and her children. Of importance to this appeal, during direct examination, defendant attempted to relay the victim's threat to kill her during their altercation. However, the prosecutor objected to defendant's testimony of the victim's statement on the grounds that the statement constituted hearsay. The trial court granted the motion, erroneously concluding that the statement was hearsay.
Defendant was convicted and sentenced as noted above. Following sentencing, this appeal ensued.
We note the length of time between defendant's conviction and sentencing was a result of Court delays due to COVID protocols. Additionally, defendant had requested to be sentenced in person, causing further delay.
II. ANALYSIS
On appeal, defendant first contends that the trial court abused its discretion and prejudiced defendant when it improperly excluded defendant's testimony regarding the threat made by the victim. The prosecution rightfully concedes error; admitting it is clear that the trial court's ruling that the statement was hearsay constituted error. However, the prosecution argues that defendant cannot meet her burden to establish that this error was not harmless, i.e., outcome-determinative. According to the prosecution, the main reason the error was not outcome-determinative is based on the fact that the defendant testified as to the victim's threat during cross-examination.
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. People v Edwards, 328 Mich.App. 29, 41-44; 935 N.W.2d 419 (2019). An abuse of discretion occurs when the trial court's decision rests outside the range of reasonable and principled outcomes. People v Baskerville, 333 Mich.App. 276, 287; 963 N.W.2d 620 (2020). Preliminary questions of law, including whether a rule of evidence precludes the admission of evidence, are reviewed de novo. People v Lane, 308 Mich.App. 38, 51; 862 N.W.2d 446 (2014) (citations omitted). "A trial court abuses its discretion when it makes an error of law in the interpretation of a rule of evidence." People v Jackson, 498 Mich. 246, 257; 869 N.W.2d 253 (2015).
Under Michigan's evidentiary rules, "[h]earsay is an unsworn, out-of-court statement that is offered to establish the truth of the matter asserted." People v Stamper, 480 Mich. 1, 3; 742 N.W.2d 607 (2007), citing MRE 801(c). Under MRE 802, hearsay is not admissible unless it "falls under one of the hearsay exceptions set forth in the Michigan Rules of Evidence." Stamper, 480 Mich. at 3. If, however, the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement is not hearsay. MRE 801(c). "An out-of-court statement introduced to show its effect on a listener, as opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE 801(c)." People v Gaines, 306 Mich.App. 289, 306-307; 856 N.W.2d 222 (2014). "Evidence of prior threats is admissible when the defendant has raised an argument of self-defense." People v Ake, 362 Mich. 134, 136-137; 106 N.W.2d 800 (1961).
Here, defendant claimed she acted in self-defense of herself and her children. For the jury to conclude defendant acted in self-defense, they would have to find defendant "had a reasonable and honest belief that the use of deadly force was necessary to prevent imminent death or great bodily harm." People v Guajardo, 300 Mich.App. 26, 42; 832 N.W.2d 409 (2013). Further, for the jury to conclude defendant acted in defense of her children, the jury would have to find defendant acted in "defense of [her] own life, or that of [her] family, relatives or [dependents], within those relations where the law permits the defense of others as of one's self." People v Leffew, 508 Mich. 625, 638; 975 N.W.2d 896 (2022) (quotation marks and citation omitted).
During her direct examination, defendant testified that she grabbed her gun in self-defense and defense of her children because the victim choked her and made her fear for her life. Defendant also attempted to relay the victim's threat to kill her during their argument. However, the prosecutor objected to defendant's statement and the trial court erroneously ruled defendant's testimony was hearsay.
There are a variety of exclusions and exceptions to the hearsay rule that apply to the statement offered, but it is sufficient for us to conclude that the statement was not hearsay for the reason stated by defense counsel at trial: the statement was offered to show the effect the threat had on defendant and her state of mind and not for the truth of the matter asserted. See MRE 801(c).
Our conclusion that the trial court erred does not end our analysis of the issue. MCR 2.613 states, in relevant part:
An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not grounds for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to
take this action appears to the court inconsistent with substantial justice. [MCR 2.613(A).]
As previously stated, even though the trial court erroneously prohibited introduction of the victim's threat on direct examination, on cross-examination, the same prosecutor who objected to the statement later elicited the following from defendant:
Q. So when you came in the house you immediately asked to see [the victim's] telephone?
A. No. I seen his name in the phone. And I asked him. I said, "Did Jay call you?" And that's when he jumped on top of me and started to choke me. And he was saying, "Don't ever ask me about my f***ing cousin ever again. I will kill you."
Defendant's arguments to the contrary, the victim's verbal threat directed at defendant was admitted as testimony for the jury to consider. As is the case in a criminal trial, the jurors were instructed to consider all the evidence when reaching their verdict, regardless of whether it was presented on direct or cross-examination or which party presented it. And, because jurors are presumed to follow their instructions, People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008), defendant has failed to prove the trial court's failure to admit defendant's testimony on direct examination amounts to more than harmless error. Therefore, defendant is not entitled to a relief on this issue.
Defendant next argues the trial court abused its discretion when it admitted irrelevant, prejudicial evidence that defendant visited the victim's father after the alleged assault. The prosecution counters that the evidence was relevant in determining defendant's credibility
" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." People v McKinney, 410 Mich. 413, 419; 301 N.W.2d 824 (1981), citing MRE 401. Even relevant evidence may, however, be excluded under MRE 403 if, despite its relevancy, the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. We have defined "unfair prejudice," stating, in relevant part:
Unfair prejudice exists when there is a tendency that evidence with little probative value will be given too much weight by the jury. This unfair prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party's position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury's bias, sympathy, anger, or shock. [People v McGhee, 268 Mich.App. 600, 613-614; 709 N.W.2d 595 (2005) (quotation marks and citations omitted).]
The prosecution bears the burden to prove its case beyond a reasonable doubt. People v Denson, 500 Mich. 385, 401; 902 N.W.2d 306 (2017). Part of meeting that burden is to challenge defendant's credibility and any inconsistencies in her testimony. "The credibility of a witness is always an appropriate subject for the jury's consideration." People v Coleman, 210 Mich.App. 1, 8; 532 N.W.2d 885 (1995). "[T]he jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." People v Layher, 464 Mich. 756, 763; 631 N.W.2d 281 (2001).
Defendant claimed, as a result of the victim's attack, she suffered injuries to her neck, back, and thighs that impacted her ability to move. Defendant stated that her injuries were so painful she could not seek medical treatment right away because she could hardly move. But defendant also testified she was able to get into her car and drive to the house of the victim's father. It therefore becomes clear that the prosecutor questioned defendant about her trip to the home of the victim's father in an attempt to challenge defendant's credibility, which is a relevant consideration for the jury. See Coleman, 210 Mich.App. at 8. Because evidence regarding defendant's credibility is highly relevant for the jury's verdict, the trial court did not abuse its discretion in allowing the prosecutor's questions regarding defendant's visit to the home of the victim's father. Accordingly, defendant is not entitled to relief on this issue.
Defendant next claims that the trial court's cumulative error in admitting irrelevant evidence of defendant's visit to the home of the victim's father after the altercation was compounded by the trial court's abuse of discretion in ruling defendant's direct examination testimony was hearsay. "The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted." Gaines, 306 Mich.App. at 321-322. However, each of the errors must be of some consequence. People v Knapp, 244 Mich.App. 361, 388, 624 N.W.2d 227 (2001). Where there is only one error of consequence that does not individually warrant a new trial, a new trial is not warranted on the basis of cumulative error. See Gaines, 306 Mich.App. at 322.
We reject defendant's cumulative claim of error for the reasons previously stated in this opinion. As to the trial court's error in not admitting the victim's threat toward defendant, such error was harmless because later in her testimony, defendant was able to state the victim's threat to kill her. Therefore, while error, we conclude that any error was harmless and does not entitle defendant to relief. MCR 2.613(A). Additionally, we concluded that evidence regarding defendant's trip to the home of the victim's father was relevant and therefore there was no error by the trial court in admitting that evidence. Accordingly, defendant has not demonstrated "cumulative error" for which she is entitled to relief.
Next, defendant argues that throughout the trial, the prosecutor repeatedly referenced the lack of photographic evidence depicting defendant's neck after the alleged choking. The prosecution also referenced defendant's delay in reporting the alleged choking to police. According to defendant, because all of these statements improperly shifted the burden to defendant to prove self-defense, defendant is entitled to a new trial.
"Given that a prosecutor's role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial." People v Dobek, 274 Mich.App. 58, 63; 732 N.W.2d 546 (2007). We, however, review unpreserved claims of prosecutorial misconduct for plain error affecting defendant's substantial rights. People v Clark, 330 Mich.App. 392, 433; 948 N.W.2d 604 (2019) (citation omitted). Under the plain-error rule, a defendant must show: 1) an error occurred, 2) the error was plain, meaning, clear or obvious, and 3) the plain error affected substantial rights, meaning it prejudiced defendant by affecting the outcome of the proceedings. People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). If defendant satisfies those requirements, we must determine whether the plain error "seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of defendant's innocence." Id. at 763-764 (quotations marks and citations omitted). Reversal is not warranted if the alleged prejudicial effect of the prosecutor's conduct could have been cured by a timely instruction. People v Watson, 245 Mich.App. 572, 586; 629 N.W.2d 411 (2001).
We have held, in relevant part:
A prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof. Also, a prosecutor may not comment on the defendant's failure to present evidence because it is an attempt to shift the burden of proof. [People v Fyda, 288 Mich.App. 446, 463-464; 793 N.W.2d 712 (2010) (footnotes omitted).]
Further, during closing arguments, "a prosecutor may not make a factual statement to the jury that is not supported by the evidence, but a prosecutor is free to argue the evidence and all reasonable inferences arising from it as it relates to . . . the theory of the case." People v Johnson, 315 Mich.App. 163, 201; 889 N.W.2d 513 (2016) (quotation marks and citation omitted). Prosecutors may argue that a defendant's theory of the case should not be believed as long as such argument is based on the evidence. People v Meissner, 294 Mich.App. 438, 457-458; 812 N.W.2d 37 (2011). And "where a defendant testifies at trial or advances, either explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment on the validity of the alternate theory cannot be said to shift the burden of proving innocence to the defendant." People v Fields, 450 Mich. 94, 115; 538 N.W.2d 356 (1995).
Here, defendant argued at trial that she was acting in self-defense and in defense of her children when she brandished a gun during the argument with the victim. The trial court instructed the jury on self-defense, stating, in relevant part: "If a person acts in lawful self defense or in defense of others her actions are justified and she is not guilty of an assault with a dangerous weapon, felonious assault, felony firearm, or domestic violence." Therefore, because defendant asserted a theory of self-defense, which would exonerate her if proven, the prosecution was entitled to comment on and challenge the validity of defendant's defense. "[W]here a defendant testifies at trial or advances, either explicitly or implicitly, an alternate theory of the case that, if true, would exonerate the defendant, comment on the validity of the alternate theory cannot be said to shift the burden of proving innocence to the defendant. Although a defendant has no burden to produce any evidence, once the defendant advances evidence or a theory, argument on the inferences created does not shift the burden of proof." Fields, 450 Mich. at 115.
Here, defendant claimed the victim choked her, making her fear for her life, and as a result she grabbed her gun. During the prosecutor's presentation of the case-in-chief, the victim denied choking defendant. Therefore, the prosecutor's comments about a lack of evidence demonstrating evidence that defendant had been chocked during closing argument did not shift the burden to defendant to prove self-defense. Rather, the statements were intended to challenge defendant's claim of being chocked. There was no burden shifting by the prosecution and as such, defendant is not entitled to relief on this issue.
Defendant next argues she received ineffective assistance of counsel because defense counsel: (1) failed to challenge a biased juror; (2) made an apparent admission of aggression by defendant; and (3) failed to object to prosecutorial misconduct.
Defendant's claims of error regarding prosecutorial misconduct relative to burden shifting have already been examined and rejected in this opinion. Therefore, we need not address the same issues again.
"The question whether defense counsel performed ineffectively is a mixed question of law and fact; we review for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v Trakhtenberg, 493 Mich. 38, 47; 826 N.W.2d 136 (2012). In the absence of an evidentiary hearing, our review of ineffective assistance claims is generally limited to mistakes apparent from the existing record. People v Muhammad, 326 Mich.App. 40, 63; 931 N.W.2d 20 (2018).
In Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984), the United States Supreme Court held a convicted defendant's claim of ineffective assistance of counsel includes two components: "First, the defendant must show that counsel's performance was deficient…Second, the defendant must show that the deficient performance prejudiced the defense." To establish a claim of ineffective assistance of counsel, a defendant must demonstrate "that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich. at 51. Defense counsel is presumed to be effective. People v Frazier, 478 Mich. 231, 243; 733 N.W.2d 713 (2007). Thus, defendant is required to "overcome a strong presumption that counsel's performance constituted sound trial strategy." People v Riley, 468 Mich. 135, 140; 659 N.W.2d 611 (2003).
Defendant's first claim of ineffective assistance of counsel concerns jury selection. During the prosecution's questioning during voir dire, this relevant exchange took place:
PROSECUTOR: Now if I may, ladies and gentlemen, by a show of hands, how many of you that maybe watching the news or something like that, ever watched a news story and saw an individual and said, I know that person did it, or that person didn't do it?
But you had a perception already if you are honest, how many of you have done that?
* * *
JUROR NO. 6: I see kids and I know they can't defend themselves then that's something.
PROSECUTOR: So what is your perception, you would say they're innocent, Juror No. 6?
JUROR NO. 6: I would say guilty.
PROSECUTOR: Just automatically?
JUROR NO. 6: Guilty, because kids can't defend themselves. That's the way I feel, if they're hurt or something like that.
PROSECUTOR: So no matter what you are saying whatever the judge says or the testimony from the witness if they were stabbed if it's a child you just can't get past that?
JUROR NO. 6: I can't get past that.
The juror's main concern was attacks on minors, and this case did not involve an attack on a minor. In fact, central to the defense was defendant's assertion that she was at all times acting in defense of her children. Further, counsel's decisions relating to the selection of jurors is generally a matter of trial strategy. People v Johnson, 245 Mich.App. 243, 259; 631 N.W.2d 1 (2001). "If counsel's strategy is reasonable, then his or her performance was not deficient." People v Randolph, 502 Mich. 1, 12; 917 N.W.2d 249 (2018). Additionally, jurors are presumed to be impartial and competent to render a verdict. Johnson, 245 Mich.App. at 256. "The burden is on the defendant to establish that [a] juror was not impartial or at least that the juror's impartiality is in reasonable doubt." People v Miller, 482 Mich. 540, 550; 759 N.W.2d 850 (2008) (citation omitted). When a potential juror swears that he or she will put aside preexisting knowledge and opinions, it is presumed the juror is telling the truth. People v Cline, 276 Mich.App. 634, 638; 741 N.W.2d 563 (2007).
Taking into consideration the record coupled with our prior decisions, it becomes clear that trial counsel's decision to leave the juror on the panel did not constitute a deficient performance. First, defendant's claim of error is predicated on a misunderstanding of her own case; the juror testified that they if they harbored a bias, it was in favor of children. Here, defendant claimed she acted in order to protect her children. Therefore, any bias was in defendant's favor, not contrary to her interests. Additionally, the juror in question stated that they would follow the law and adjudicate the case strictly based on the evidence presented, being equally fair to defendant and prosecution. Also, the jury was properly instructed and it is presumed that jurors follow their instructions. Johnson, 245 Mich.App. at 256. Accordingly, defendant is not entitled to relief on this issue.
Next, defendant argues that defense counsel was ineffective because during closing arguments counsel made a comment containing an apparent admission of aggression by defendant, specifically: "Did [defendant] give [the victim] a kick on the way out? I hope so. Because this man had no business putting his hands around her neck."
Throughout trial, defense counsel argued defendant reasonably drew her gun as an act of self-defense and defense of her children because the victim choked defendant and defendant feared the victim would kill her or harm her children. During closing argument, defense counsel reiterated this theory of the case, emphasizing defendant only acted the way she did because she was a mother attempting to protect herself and her children. Read in context, defense counsel's use of rhetorical flourish was in furtherance of defendant's theory of self-defense. And because we do not "substitute our judgment for that of counsel on matters of trial strategy," Unger, 278 Mich.App. at 242-243, defendant has failed to show defense counsel's statement constitutes deficient performance.
Even if defendant could establish defense counsel's statement during closing arguments constituted deficient performance, defendant still bears the burden of proving but for counsel's deficient performance, there is a reasonable probability the outcome of trial would have been different. Trakhtenberg, 493 Mich. at 51. At trial, the jurors were instructed that the lawyer's statements and arguments were not evidence. And because "[j]urors are presumed to follow their instructions, and instructions are presumed to cure most errors," People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003), any prejudice was cured by the jury instruction. Further, defendant offers no support for her contention that defense counsel's comment made it "possible" for the jury to return a different verdict. Accordingly, defendant is not entitled to relief on this issue.
Affirmed.
Hood, J. (dissenting.)
I respectfully dissent. I agree with almost all of the majority opinion, including the majority's conclusion that the trial court committed an obvious evidentiary error. I, however, disagree with the majority's conclusion that it was harmless error for the trial court to erroneously exclude the victim, Arron Lewis's, statement, "I will kill you." I would reverse for two reasons: (1) even under the test for preserved, nonconstitutional errors, this appears to be outcome determinative; and (2) this exclusion borders on a constitutional error implicating defendant Natalie Christina Nelson's right to present a defense.
I. BACKGROUND
The proposed opinion accurately describes the facts including those relevant to this issue. Critically, prior to the alleged assault, Nelson confronted Lewis about his contact with his cousin, a child molester, who had sex with Lewis's sister when she was a minor. They began to argue. During the argument, Nelson grabbed at his neck, scratched him, attempted to hit him, and threw an ashtray at him. These facts are not largely disputed.
Nelson and Lewis provided different accounts of what happened next. Lewis denied choking Nelson before Nelson grabbed her gun, but both Nelson and her son testified that Lewis choked her and that he demonstrated what he had done to her stating, "I just did this to her," and gesturing. The son also testified that they had physical fights in the past where Lewis choked Nelson. According to trial testimony, Lewis is six feet tall and 175 pounds. Nelson's height and weight are not part of the record, but according to her testimony, she is short enough that the bed in the room where this incident happened comes up to her stomach. In short, and as the defense emphasized in closing, Lewis is substantially bigger than Nelson.
According to Nelson, Lewis jumped on top of her and started to choke her to the point that she could not breath. During her direct examination, defense counsel tried to capture the sequence of this conduct in relation to Lewis's statement to Nelson, "I will kill you," but the trial court prevented counsel from doing so. The evidentiary error described in the majority opinion occurred in the middle of the sequence of questions about Lewis choking Nelson.
The trial court's ruling precluded the defense from admitting evidence that Lewis said, "I will kill you," before he choked Nelson, and before Nelson puller her gun. The trial court never corrected this error.
As the majority observes, the statement came out during Nelson's cross-examination, but it did not come out in response to a question. The previously excluded statement came out in a non-responsive answer to the prosecutor's question:
Q. So when you came in the house you immediately asked to see Mr. Lewis's telephone?
A. No. I seen his name in the phone. And I asked him. I said, "Did Jay call you?" And that's when he jumped on top of me and started to choke me. And he was saying, "Don't ever ask me about my f*cking cousin ever again. I will kill you."
Q. I'm glad you shared all of that. But my question is you came in the house and saw the phone. Is that what you are telling us, you saw the phone?
What followed was a back-and-forth between the prosecution and defense about whether the answer was responsive. It is unclear whether the prosecution purposefully did not move to strike, so as not to emphasize Nelson's testimony, and shrewdly deflected to other issues with her answer. But because that part of her answer was nonresponsive, the prosecution likely did not open the door for the defense to explore the statement on redirect. The defense did not move for the court to reconsider. And it did not argue that the prosecution opened the door.
This is significant because the statement was potentially part of the body of evidence that the jury could consider, but it only came out in a nonresponsive answer that was the subject of a previously upheld objection. This is different, and likely less credible, than naturally and measuredly providing that statement in response to defense counsel's nonleading, but very precise and sequential questions.
It also means that the defense could not argue about the statement in closing, because the error was never corrected. Here, where the defense theory was self-defense, the trial court prevented the defense from introducing evidence that the victim said, "I will kill you," during or immediately before choking the defendant, and prevented the defense from arguing about it in closing argument. Neither the defense, nor the prosecution, referenced the statement during closing.
I otherwise agree with the majority's summary of the factual background.
II. LAW AND ANALYSIS
Regarding the trial court's erroneous decision to exclude this statement as hearsay, I agree that this was an error and that the error was preserved. The question is whether it was harmless. It was not.
A preserved error related to the exclusion of evidence "does not warrant reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative." People v Burns, 494 Mich. 104, 110; 832 N.W.2d 738 (2013) (addressing preserved errors for the improper admission of hearsay) (quotation marks, footnote, and citation omitted). "[T]he appropriate inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." People v Lukity, 460 Mich. 484, 495; 596 N.W.2d 607 (1999) (quotation marks and citation omitted). The burden is on the defendant to prove the error "resulted in a miscarriage of justice . . . ." Id.
Here, Nelson attempted to introduce evidence that the much larger victim got on top of her, choked her, and said "I will kill you," before she pulled out her gun. The trial court prevented the defense from introducing this, and based on its ruling, prevented the defense from arguing about it in closing. It only came into the body of evidence through Nelson's self-serving nonresponsive answer to the prosecution's question on cross-examination. The trial court's ruling defanged the defense. It took away defense counsel's ability to use the hallmark trial tactics of primacy and recency to its advantage. To the extent that the evidence came in anyway, it was in a nonresponsive answer that was largely buried by objections and questions about other matters. This necessarily affects the weight and strength of the evidence supporting the self-defense theory. This makes it more likely than not that the error was outcome determinative.
I disagree with the majority's reliance on People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008), to conclude that once the statement came in through Nelson's nonresponsive answer on cross examination, it was in the body of evidence, and the jury could consider it. In Unger, this Court held juries are presumed to follow the court's instructions. Id. There, the defendant argued that the court should reverse his conviction because, during closing argument, the prosecutor denigrated defense counsel's integrity, accused the defense expert of lying, and argued facts not in evidence. Id. at 234. This Court agreed that some of the statements were improper, but found that the trial court's curative instruction was sufficient, "and jurors are presumed to follow their instructions." Id. at 234-235.
Here, however, there was no curative instruction, and the transcript does not indicate that the trial court provided the jury with clarity on whether it could consider Lewis's statement, "I will kill you." On direct, when Nelson first began to testify to Lewis's statement, the prosecution objected on the basis of hearsay. The trial court ultimately ruled: "I will sustain that. We're not going to get into what he said in response. You had a discussion about this, correct? . . . Let's move on . . . ." Later, during the final jury instructions, the court provided the pattern instructions on considering evidence and not considering matters that were not evidence. But these instructions do not provide clarity on how a juror should consider previously excluded evidence that then was introduced in a nonresponsive error. See Mich. Crim JI 3.5. Quoting Mich. Crim JI 3.5(8), the trial court instructed the jury to consider "all the evidence regardless of which party presented it." But in the preceding breath, quoting Mich. Crim JI 3.5(7), the trial court also instructed, "At times during the trial I may have excluded evidence that was offered or stricken testimony that was heard, please do not consider those things in deciding the case, make your decision only on the evidence that I let in and nothing else." Here, the trial court did not let in the statement, "I will kill you." On the contrary, it explicitly excluded it. Nelson offered the evidence anyway in a nonresponsive answer. Although the trial court appears to have largely adhered to the pattern jury instructions, at best these instructions are unclear on how to handle testimony that was previously excluded, that came in even when it was not introduced, and was not the subject of a motion to strike or a motion to reconsider. Far from giving the jury clear guidance to consider this testimony as part of "all the evidence," relying on the court's prior order to exclude the testimony and its instruction not to consider excluded testimony, it is very possible that the jury did not consider this evidence at all.
Finally, in this case, where the central issue was whether Nelson pulled the firearm in self-defense, the error was so extreme that it implicated Nelson's right to present a defense. A criminal defendant has a constitutional right to present a defense. See U.S. Const, Am VI; Const 1963, art 1 § 20; People v Masi, ___ Mich.App. ___, ___; ___ N.W.2d ___ (2023) (Docket No. 358922); slip op at 10. A defendant is merely required to comply with the procedural and evidentiary rules established to assure fairness and reliability in the verdict. See People v Hayes, 421 Mich. 271, 279; 364 N.W.2d 635 (1984); People v Arenda, 416 Mich. 1, 8; 330 N.W.2d 814 (1982). In related contexts, when considering whether an evidentiary error affecting constitutional rights is harmless, we have required consideration of a variety of factors including, among others, the importance of the testimony, whether other evidence corroborated the testimony, and the overall strength of the prosecution's case. See People v Kelly, 231 Mich.App. 627, 644-645; 588 N.W.2d 480 (1998).
Here, the statement came in but in a manner that was of little or no use to the defense. Nelson's counsel was still barred from arguing about the statement in closing. Since it only came into evidence through Nelson's self-serving, non-responsive answer to the prosecutor's question on cross-examination, it very likely affected the jury's perception of her credibility. Without this evidence, the prosecution's case became much stronger.
The trial court not only informed the jury to consider all evidence, but it also provided the pattern instruction on assessing witness credibility. See M Crim JI 2.8; M Crim JI 3.6. This included considerations of whether the witness made an honest effort to tell the truth or evaded questions of the lawyers and argue with the lawyers. See M Crim JI 2.8; M Crim JI 3.6.
To date, I have struggled to find cases involving the same sort of error at issue here. Most of our cases on this issue involve an abuse of discretion by trial judges limiting the scope of the defense's cross-examination or erroneously admitting inadmissible hearsay in the prosecution's case. I have yet to find a case involving a trial judge precluding a defendant, who is arguing self-defense, from admitting evidence that the complaining witness said "I will kill you" before strangling her. Despite the dearth of comparable cases, I conclude that the error was not harmless.
III. CONCLUSION
For the reasons stated above, I respectfully dissent. I would vacate the conviction and remand this case to the trial court for a new trial with explicit guidance that Lewis's alleged statement, "I will kill you," is admissible.