Opinion
No. 348293 No. 349130
11-24-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARRICK WILLIAM SIMPSON, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JAMES ROWE MCINTYRE, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 17-000650-FC Washtenaw Circuit Court
LC No. 17-000651-FC Before: JANSEN, P.J., and FORT HOOD and RONAYNE KRAUSE, JJ. PER CURIAM.
In these consolidated appeals, defendants, Darrick William Simpson and James Rowe McIntyre, appeal by right their convictions arising from their participation in the breaking and entering of a home to steal medical marijuana. In Docket No. 348293, Simpson appeals by right his jury convictions of armed robbery, MCL 750.529, and first-degree home invasion, MCL 750.110a(2). In Docket No. 349130, McIntyre appeals by right his jury convictions of armed robbery, MCL 750.529, first-degree home invasion, MCL 750.110a(2), conspiracy to commit first-degree home invasion, MCL 750.157a(a) and MCL 750.110a(2), felon in possession of a firearm, MCL 750.224f, and carrying or possessing a firearm during the commission of a felony (felony-firearm), second-offense, MCL 750.227b(1). For the reasons more fully explained below, in Docket No. 348293, we affirm Simpson's convictions and sentences. In Docket No. 349130, we affirm McIntyre's convictions, but remand for amendment of his judgment of sentence.
I. BASIC FACTS
Michael O'Connor testified that he lived in a home in a rural setting along a dirt road, wherein he had a medical marijuana grow operation in the basement. In about February 2016, a friend introduced him to a man whom he knew as Scott Libby, but whose real name was Robert Winburn. O'Connor socialized with Winburn and gave him a tour of his home—including the medical marijuana grow operation.
Nicole Stamps testified that she also knew Winburn, and that he provided her with cocaine and heroin. Stamps had financial difficulties and moved into Winburn's home just days before the events at issue. Stamps stated that Winburn told her about a plan to break into a home and rob the owner of medical marijuana. He told her that he would use the proceeds to find her a place to live, but that he could not personally break into the house because the owner knew him. He said that he would lead another car to the home. Stamps stated that Winburn met with McIntyre that night, and again on the following night. She stated that, at the second meeting, Winburn asked her for a nylon stocking to use as a mask. Stamps provided one to him, which she then saw him give to McIntyre. Stamps testified that they then left to go to the home to be robbed.
Evidence at trial established that Simpson drove McIntyre in Simpson's car, and Winburn drove Stamps's car with Stamps as a passenger. There was evidence that they coordinated two stops along the way, including a stop at a Meijer store where McIntyre purchased items that could be used in the robbery. They then drove for more than an hour in a heavy rainstorm until they arrived near O'Connor's home. Stamps stated that Winburn and McIntyre got out of their respective cars and proceeded off together, but Winburn later returned without McIntyre.
O'Connor testified that he heard people trying to break into his home late on the night of August 15 or early in the morning on August 16, 2016. He heard Winburn's voice demanding that he open the door. O'Connor called 911. He stated that the intruders broke into his home, and a man with a gun then broke into his bedroom. They fought, and O'Connor forced the man down the hall and out the front door. O'Connor then fled to the back door and heard a gunshot. He threw himself over the railing of his deck, fell approximately 10 feet, and managed to hide in nearby woods.
Police officers arrived soon after the 911 call and arrested Stamps and Simpson in the cars parked along the dirt road near O'Connor's home. Testimony established that Winburn was present when the officers arrived, but fled on foot. Officers arrested McIntyre the next morning while he walked along a road. Winburn was not arrested until sometime later. McIntyre and Simpson were convicted as described above, and both now appeal.
II. SIMPSON'S CLAIMS OF ERROR IN DOCKET NO. 348293
A. SUFFICIENCY OF THE EVIDENCE
1. STANDARD OF REVIEW
Simpson first argues that the prosecution failed to present sufficient evidence that he assisted the principals in the commission of the armed robbery or home invasion, or that he had the requisite intent to do so. This Court reviews a challenge to the sufficiency of the evidence by "examining the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." People v McFarlane, 325 Mich App 507, 513; 926 NW2d 339 (2018) (quotation marks and citation omitted).
2. ANALYSIS
The prosecution charged Simpson with first-degree home invasion and armed robbery under the theory that he aided and abetted Winburn and McIntyre's commission of those offenses.
Every person concerned in the commission of an offense, whether he [or she] directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he [or she] had directly committed such offense. [MCL 767.39.]
A person does not aid and abet a principal in the commission of an offense by taking some act to assist the principal, if he or she did not know that the principal intended to commit the offense. See People v Burrel, 253 Mich 321, 323; 235 NW 170 (1931). Similarly, merely being present with knowledge that an offense is about to be committed or is being committed—even with mental approval of the criminal acts—is not enough to convict a person of aiding and abetting the commission of an offense. Id. Rather, a person is guilty under an aiding-and-abetting theory only when the person has the requisite intent or knowledge at the time he or she provides aid or encouragement. See People v Moore, 470 Mich 56, 70-71; 679 NW2d 41 (2004). As our Supreme Court has explained, to convict a person of a crime under the theory that he or she aided or abetted the principal, the prosecution must prove that the defendant or someone else committed the charged offense, that the defendant performed acts or gave encouragement that assisted the commission of the offense, and that the defendant intended the commission of the offense or knew that his or her principal intended to commit the offense at the time he or she gave aid and encouragement. See People v Carines, 460 Mich 750, 768; 597 NW2d 130 (1999). A person who aids and abets the commission of an offense is also criminally responsible for any additional offense that his or her principal commits that is the natural and probable consequence of the commission of the intended offense. See People v Robinson, 475 Mich 1, 14-15; 715 NW2d 44 (2006).
The prosecution need only present minimal circumstantial evidence to support a finding that the defendant had the requisite mental state. See McFarlane, 325 Mich App at 516. An aider and abettor's state of mind can be inferred from all the facts and circumstances. See Carines, 460 Mich at 757. The finder of fact may consider the defendant's close association with the principal, the defendant's participation in the planning and execution of the crime, and evidence of flight. Id. Moreover, "the phrase 'aiding and abetting' is used to describe all forms of assistance rendered to the perpetrator of a crime" and includes "all words or deeds which may support, encourage or incite the commission of a crime." People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974). "The amount of advice, aid or encouragement is not material if it had the effect of inducing the commission of the crime." Id. Indeed, joining a mob with knowledge that the mob was bent on arson amounts to aiding and abetting the acts of arson committed by others in the mob because joining the mob contributed to the psychological underpinnings that gave strength to the mob. See People v Smock, 399 Mich 282, 284-285; 249 NW2d 59 (1976).
On appeal, Simpson does not contest whether the evidence established that McIntyre committed a robbery and home invasion after Simpson drove him to O'Connor's home. Rather, he argues that the evidence that he drove McIntyre to the home where the robbery and home invasion occurred was not sufficient to establish that he aided and abetted the robbery and home invasion. He also argues that merely being present in the car while the robbery and home invasion occurred was insufficient because mere presence, even with knowledge that a crime is to be committed, is not enough to convict a person as an aider and abettor. Simpson's argument depends on viewing the evidence in isolation without drawing all the reasonable inferences in favor of the prosecution, which this Court will not do. See People v Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009). When examined as a whole and in context, the evidence was sufficient to permit a rational jury to find that Simpson knew that McIntyre and Winburn planned to break into O'Connor's home and steal medical marijuana plants, and that he took acts to support and encourage their efforts.
Stamps testified that Winburn formulated a plan to break into a home and steal medical marijuana plants to generate funds to get Stamps a new place to stay. She further stated that Winburn informed her that he intended to lead others to the home but did not intend to participate in the actual break-in because the owner knew him. That testimony permitted an inference that Winburn intended to recruit one or more accomplices to achieve his plan.
Stamps further testified that Winburn spoke with McIntyre while he was explaining his plan to her on Sunday, August 14, 2016. Stamps overheard Winburn's portion of the conversation and heard Winburn express his belief that it was too late to meet. She stated that Winburn nevertheless decided to meet with the caller. She said he told her that he was going to meet McIntyre and he met someone she believed to be McIntyre. Winburn drove Stamps' Ford Focus to the meeting and McIntyre arrived in a Ford Taurus. Another man waited in the Taurus while Winburn and McIntyre conferred.
Other testimony established that the Taurus was Simpson's and that Simpson and McIntyre were involved in an intimate relationship. Phone records demonstrated that the phone associated with Simpson was used to contact a phone number associated with Winburn during the time of the above meeting. A reasonable jury could infer from the evidence that Simpson drove McIntyre to the meeting with Winburn and either used his phone to arrange the meeting. Additionally, after the meeting, Winburn informed Stamps that everything was going to be different by the next day, which suggested that Winburn discussed the plan for the robbery and home invasion with McIntyre. Considering the timing of the communications and the meeting, in addition to Simpson's close relationship with McIntyre, see Carines, 460 Mich at 757, a jury could reasonably infer that Simpson either was aware of the purpose of the meeting because he arranged it or because he was present when McIntyre communicated with Winburn through Simpson's phone, see McFarlane, 325 Mich App at 515-516 (stating that this Court must make all inferences that can be drawn from the evidence in favor of the prosecution, which includes all inferences that arise from the favorable inferences).
Stamps further testified that she, Winburn, McIntyre, and Simpson met again the following evening at Winburn's home. Although Stamps did not directly participate in the conversation between Winburn, McIntyre, and Simpson, she overheard portions of the conversation as she went back and forth between the living room and bedroom. Stamps testified that Winburn came into the bedroom and asked her for nylon stockings to use as masks for the robbery and looked for and found cutters that he stated could be used for an alarm. She also saw Winburn give to McIntyre the stocking that she had earlier provided. Later testimony established that a pair of red handled cutters were found in Simpson's Taurus at the scene of the robbery, as was a nylon stocking.
This testimony and evidence permitted an inference that Winburn was discussing the earlier disclosed plan to break into the home and steal medical marijuana with McIntyre and Simpson. Even if Simpson chose not to participate in the conversation, and even if he may have left for a portion of it, his presence in the room with Winburn and McIntyre during other portions of the conversation strongly suggested that he had to have known what Winburn and McIntyre were planning. See McFarlane, 325 Mich App at 515-516. Additionally, there was evidence that Simpson knew about the robbery and actively participated in its planning.
Stamps also testified that, at one point, she noticed that Simpson was wearing maroon scrubs. She knew that a local hospital used maroon colored scrubs and inquired whether Simpson worked there. She stated that McIntyre and Simpson looked at each other and laughed. They stated that that was precisely the image they intended to convey with the scrubs: they wanted it to look as though Simpson was "coming home from work." Stamps's testimony that McIntyre and Simpson both laughed and both conveyed the notion that they were trying to make Simpson look "low key"—as though he were coming from work—was strong evidence that Simpson was an active and knowledgeable participant in the plan. The testimony suggested that Simpson selected his attire with the understanding that he was to participate in the crime in some way and needed to look inconspicuous. The evidence that Simpson and McIntyre both laughed at Stamps's remark and offered that that was precisely what they intended by the selection of Simpson's attire also permitted an inference that McIntyre and Simpson had already discussed the matter before proceeding to Winburn's home and had together decided how best to proceed. As such, there was strong evidence that Simpson knew about the plan even before the group departed that night.
The evidence that Simpson was well aware of the plan before departing Winburn's house makes his reliance on the decision in Burrel inapposite. In Burrel, our Supreme Court determined that the defendant could not be convicted of aiding and abetting statutory rape because there was no evidence that he knew that his principal intended to have sexual intercourse with an underage girl when he drove the couple to a secluded location. See Burrel, 253 Mich at 323. Additionally, although the testimony showed that he was present during the sexual encounter, our Supreme Court held that the defendant could not be guilty of aiding and abetting statutory rape merely by being present. Id. By contrast, the evidence in this case showed that Simpson knew that McIntyre intended to rob a home before he rendered assistance to McIntyre by driving him to O'Connor's home.
The testimony and evidence of events after the group left Winburn's home also strongly suggested that Simpson either intended to commit a home invasion and robbery, or knew that McIntyre and Winburn intended to commit them, and that he actively aided and abetted the commission of those offenses. See Carines, 460 Mich at 768. The testimony that Simpson selected his attire before attending the meeting and that he chose it because he felt that it would be "low key" and would indicate to an observer that he was coming home from work was evidence that Simpson acted with the intent to assist the planned robbery. Simpson suggests that his choice of attire did not permit such inferences because there was no evidence that anyone would have seen him, given that he just drove and sat in the car, but his argument is not well taken.
"When considering the sufficiency of the evidence, this Court must consider the inferences that can be fairly drawn from the evidence, and 'it does not matter that the evidence gives rise to multiple inferences or that an inference gives rise to further inferences.' " McFarlane, 325 Mich App at 516, quoting People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A reasonable jury could conclude that the driver of a getaway car would not want to draw attention to himself while driving to and from the scene of the planned crime, or while waiting for his accomplices. A reasonable jury could also infer that Simpson's choice of attire was in fact made in furtherance of the plan to commit the robbery and home invasion because he selected his attire specifically to reduce any attention that he might garner while driving or waiting for his accomplices. Finally, a jury could infer that Simpson made his selection after consulting with McIntyre, and from that, it could further infer that he had preplanned his role with McIntyre. See id.
In addition, Stamps testified that Simpson followed Winburn from Winburn's residence to O'Connor's home. Stamps testified about a call between the occupants of the two cars, during which Winburn asked that Simpson keep up, which suggested that Simpson knew he was supposed to be following Winburn to the destination. The drive included stops for gas and to purchase supplies at Meijer. During the stop at Meijer, Simpson waited with Winburn and Stamps while his passenger—McIntyre—went off to make purchases. The evidence showed that McIntyre purchased, in relevant part, trash bags and gloves. Gloves similar to those that McIntyre purchased were found at the scene of the crime and one glove was found in the middle of the road, which suggested that it was lost or discarded while fleeing the scene. Simpson also got into the backseat of Stamps's car to await McIntyre's completion of the purchases, and returned to his own car prior to McIntyre's return from the store. The testimony and evidence concerning the stop permitted an inference that Simpson knew that McIntyre needed supplies for the robbery and coordinated the stop to allow him the opportunity to get those supplies.
Stamps also testified that the drive to O'Connor's home from the Meijer took an hour to an hour and a half. O'Connor's home was on a dirt road in a rural setting and even Winburn was unsure of its location when they arrived in the general area. Stamps testified that Winburn drove around until he saw a gun club that signified to him that he was in the right place. Simpson then parked next to Winburn on the side of the dirt road at night and in the middle of downpour. A reasonable jury could infer that Simpson stayed with Winburn all the while and parked near him because he intended to ensure that McIntyre could fulfill his role in the endeavor.
Stamps testified that Winburn and McIntyre got out of their respective cars after they arrived near the home and left together. Stamps testified that Winburn returned without McIntyre after about 30 minutes. Winburn told her that McIntyre was having trouble at the house, and then drove around to look for McIntyre but did not find him. At one point, Winburn walked over to Simpson's car and conferred with Simpson. Testimony established that Winburn was speaking with Simpson when police officers arrived and Winburn fled. An officer testified that he was surprised that Simpson's window was already down despite the heavy rain when he ordered Simpson to show his hands. This testimony allowed an inference that Winburn spoke to Simpson to update him about the events at O'Connor's home, which led to a further inference that Simpson was waiting for McIntyre to help him get away after the robbery and home invasion.
Finally, Stamps testified that she and Simpson were placed in the same police car after their arrest. At that time, Simpson told her that it did not "feel right" and that he knew that this "shouldn't have happened." As Simpson suggests on appeal, there might have been an innocent explanation for this statement. Nevertheless, a reasonable jury could infer from this statement that Simpson was expressing remorse for having agreed to participate in the plan, which was evidence that he was conscious of his guilt. See, e.g., People v Unger, 278 Mich App 210, 225-226; 749 NW2d 272 (2008).
Viewing the evidence as a whole and in the light most favorable to the prosecution, there was substantial and compelling evidence that Simpson knew that McIntyre and Winburn were planning to break into O'Connor's home and steal marijuana when he provided support to them, and also that he actually intended that they commit the crimes of home invasion and robbery. Therefore, there was sufficient evidence to support the jury's finding that Simpson aided and abetted the commission of those offenses. See McFarlane, 325 Mich App at 513.
B. GREAT WEIGHT OF THE EVIDENCE
1. PRESERVATION AND STANDARD OF REVIEW
Simpson also argues that, for the same reasons stated under his argument concerning the sufficiency of the evidence, his convictions were contrary to the great weight of the evidence. Because Simpson did not move for a new trial in the trial court on this ground, his claim is unpreserved. See People v Cameron, 291 Mich App 599, 618; 806 NW2d 371 (2011). This Court generally reviews a trial court's decision whether to grant a new trial on the ground that the verdict was contrary to the great weight of the evidence for an abuse of discretion. See Roper, 286 Mich App at 84. However, this Court reviews unpreserved claims of error for plain error that affected the defendant's substantial rights. See Carines, 460 Mich at 763. To meet the plain-error test, Simpson must show that the trial court committed a plain or obvious error and that the error affected the outcome of the lower court proceeding. Id.
2. ANALYSIS
Although a trial court has the authority to grant a new trial when the verdict is against the great weight of the evidence, a court may not repudiate a jury verdict on the ground that it disbelieves the testimony that the jury accepted. See People v Lemmon, 456 Mich 625, 636; 576 NW2d 129 (1998). Except in cases when the testimony defies indisputable facts or law, is so inherently implausible that it could not be believed by a reasonable a jury, or the witness was seriously impeached, a court may not substitute its judgment for that of the jury. Id. at 643-644. Rather, the "question being one of credibility posed by diametrically opposed versions of the events in question," the court must "leave the test of credibility where statute, common law, and the constitution repose it 'in the trier of fact.' " Id. at 646-647.
In this case, and as noted above, Stamps provided extensive testimony that permitted an inference that Simpson was a knowing and willing participant in the planning and execution of the robbery and home invasion. Although there was evidence that Stamps had credibility issues—she was admittedly under the influence of narcotics throughout the events at issue and testified under a generous plea deal—there was also physical evidence, phone evidence, and recordings that corroborated her version of events. As we will discuss below, the jury was fully aware of Stamps's potential credibility issues. Because her testimony was not so thoroughly impeached or implausible that a reasonable jury could not believe her, the trial court could not have disregarded Stamp's testimony. Rather, it would have been required to defer to the jury's assessment of the weight and credibility to be afforded her testimony. See id. On this record, the trial court did not plainly err when it refused to sua sponte grant Simpson a new trial on the ground that the jury's verdict was against the great weight of the evidence. See Carines, 460 Mich at 763.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
1. STANDARD OF REVIEW
Simpson next argues that his trial counsel did not provide effective assistance. Specifically, he maintains that defense counsel should have more thoroughly cross-examined Stamps about her plea deal by eliciting testimony about the maximum possible penalty that she had faced before her deal, and should have requested two jury instructions—M Crim JI 5.4 and M Crim JI 5.13—which address accomplice testimony. Because the trial court did not hold an evidentiary hearing on this claim of error, there are no factual findings to which this Court must defer and this Court's review is for mistakes that are apparent on the record. See People v Gioglio (On Remand), 296 Mich App 12, 20; 815 NW2d 589 (2012), remanded for resentencing 493 Mich 864 (2012). This Court reviews de novo as a question of constitutional law whether a particular act or omission fell below an objective standard of reasonableness under prevailing professional norms and prejudiced the defendant's trial. Id. at 19-20.
2. ANALYSIS
In order to establish his claim of ineffective assistance of counsel, Simpson must show that his trial counsel's decision to cross-examine Stamps in the way that he did and to refrain from requesting the jury instructions fell below an objective standard of reasonableness under prevailing professional norms. See Gioglio, 296 Mich App at 22. To overcome the presumption that defense counsel provided effective assistance, Simpson must show that no reasonable lawyer in defense counsel's position would have cross-examined Stamps in the way that he did or that no reasonable defense counsel would have refrained from requesting the instructions about which Simpson now complains. Id. at 22-23. Simpson must also demonstrate that the act or omission that fell below an objective standard of reasonableness prejudiced his trial. Id. at 23. An act or omission prejudices a defendant's trial when there is a reasonable probability that, but for the act or omission, the outcome would have been different. Id.
Simpson's jury was aware that Stamps would be testifying under a plea agreement and that she admitted to being a coconspirator and accomplice. In his opening statement, the prosecutor informed the jury that Stamps would testify that she helped the others plan the robbery. He further referred to Stamps as a defendant, but noted that she pleaded guilty to being an accessory after the fact and that the agreement provided that she would only have to stay in jail until she completed her testimony. After that, he noted, she would be given probation. He agreed that Stamps had an "incentive to come in and testify as part of her agreement," but he argued that the jury should find her credible because the other evidence would corroborate her testimony.
The prosecutor further elicited testimony from Stamps that fully disclosed the possible limitations on her ability to recall events and her motive to help the prosecution. The prosecutor questioned Stamps about her lifestyle, which she admitted included an addiction to drugs. She admitted that she was under the influence of cocaine and Xanax throughout the events at issue and she stated on direct examination that she at first lied to the investigating officers.
As for the plea deal, the prosecution elicited from Stamps that she was originally charged with three felony offenses: armed robbery, first-degree home invasion, and conspiracy to commit first-degree home invasion. She admitted as well that she was in big trouble at that point, but that she avoided it by making a plea agreement. She stated that the agreement was right for her because she was able to plead to a single lesser felony and thereby avoid prison. She testified that she only had to stay in jail until she completed testifying, which had been 605 days to the date of trial. She agreed that she spent more time in jail than she initially thought that she would.
The jury also heard counsel for McIntyre cross-examine Stamps. He questioned Stamps about her drug use that day and she again admitted that she was using cocaine and Xanax throughout the events. He also got her to admit that she relapsed on heroin while she was in custody.
When Simpson's trial counsel had his opportunity to cross-examine Stamps, he got Stamps to again state that she fully understood that Winburn intended to rob a marijuana grow operation when she helped Winburn. She admitted too that she never actually heard McIntyre and Simpson discussing any plan, and she agreed that Simpson was just sitting there and even left for a time. She also reiterated that she initially lied to police officers. Simpson's counsel also questioned Stamps about the charges against her and her plea agreement. She agreed that she had been charged with armed robbery, home invasion, and conspiracy to commit home invasion, which were the same charges that Simpson faced, but that she avoided those charges with her plea agreement, which provided that she would only be in jail until she testified. Counsel also questioned her about a stay in rehab. She stated that she was not in jail during a period of time in which she was instead in rehab, and that she had a relapse that resulted in her return to jail.
Whether and how to cross-examine a witness are matters of trial strategy. See People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008). As such, this Court must entertain the range of possible reasons for defense counsel's decision to pursue the cross-examination that he did, and this Court must conclude that the decision fell within the range of reasonable professional conduct if there might have been a legitimate strategic reason for his decision. See Gioglio, 296 Mich App at 22-23. A reasonable defense lawyer might have elected to focus his cross-examination on Stamps's plea agreement and her potential motive to misstate the events at issue to please the prosecution. But a reasonable trial lawyer could also choose to focus on the fact that Stamps could not say with certainty that Simpson participated in the planning. Defense counsel could also reasonably choose to demonstrate that Stamps's recollection of events was flawed. This is especially true given that the prosecution already elicited testimony about the plea agreement and that testimony established that Stamps's deal reduced her charges from three serious offenses to one, less serious offense. Likewise, the jury in fact heard that Stamps's deal made it possible for her to avoid prison and instead serve a sentence of probation. Thus, it is not evident on the face of the record that Simpson's defense counsel provided ineffective assistance by failing to more thoroughly cross-examine Stamps about her plea deal. Consequently, Simpson has not overcome the presumption that defense counsel's decision amounted to reasonable trial strategy. See id.; Petri, 279 Mich App at 413.
Moreover, even if it could be said that defense counsel's decision not to elicit testimony that Stamps avoided a potential life sentence or a lengthy term of years in prison by agreeing to testify fell below an objective standard of reasonableness, Simpson has not shown that, but for that failure, there was a reasonable probability that the outcome would have been different. See Gioglio, 296 Mich App at 23. Testimony about the maximum possible sentences might have further emphasized that Stamps had a powerful incentive to make the agreement, but it is not clear that the additional information would have caused the jury to disregard her testimony. The jury knew that Stamps had made an excellent plea agreement. It also heard about her drug addiction and learned about the limitations on her ability to testify about Simpson's involvement in the planning of the robbery and home invasion. Despite the flaws in Stamps's testimony, the jury evidently found her credible, and there is no indication that additional testimony about her maximum possible penalty would have altered the weight and credibility that it afforded Stamps's testimony. Consequently, Simpson has not demonstrated that any error prejudiced his trial. Id. Simpson's claim that defense counsel provided ineffective assistance when he failed to request the jury instructions suffers from the same flaws.
Simpson maintains that defense counsel should have requested M Crim JI 5.4, which addresses situations involving testimony by an undisputed accomplice. The usage note provides that this instruction should be given automatically when the witness, as was the case here, has admitted her guilt. The usage note also provides that the trial court should give M Crim JI 5.6, which instructs the jury on the proper means for evaluating such testimony. See M Crim JI 5.4, Use Note. A careful reading of M Crim JI 5.4 demonstrates that the instruction has three basic components: (1) it informs the jury that a witness has admitted to participating in the crime; (2) it describes the witness's relationship to the criminal justice system arising from his or her participation in the crime; and (3) it defines such a witness to be an accomplice. See M Crim JI 5.4.
The record shows that the jury was well aware of each of these things even though it was not read this specific instruction. The jury heard that Stamps admitted her role in the armed robbery, home invasion, and conspiracy, and the jury knew that it was undisputed that she participated. It also heard testimony that she entered into a plea agreement that allowed her to avoid the most serious consequences of her participation. Finally, the trial court and parties explicitly referred to Stamps as an accomplice. Indeed, the trial court gave several instructions regarding the use of accomplice testimony, and specifically mentioned Stamps as part of those instructions. Additionally, the trial court properly provided a cautionary instruction about accomplice testimony consistent with M Crim JI 5.6.
Under these circumstances, a reasonable defense lawyer might conclude that providing the jury with M Crim JI 5.4 was redundant, unnecessary, and possibly confusing, even if the trial court should have given it on its own. As such, it cannot be said that defense counsel's failure to request this instruction fell below an objective standard of reasonableness. See Gioglio, 296 Mich App at 22-23. Additionally, because the jury was well aware of the content of the instruction, Simpson cannot show that, but for the failure to request that the jury be instructed as to what it already knew, the outcome would have been different. Id. at 23.
Simpson also complains that defense counsel provided ineffective assistance when he chose not to request that the jury be instructed as provided under M Crim JI 5.13. That instruction states:
(1) You have heard testimony that a witness, [name witness], made an agreement with the prosecutor about charges against [him / her] in exchange for [his / her] testimony in this trial. You have also heard evidence that [name witness] faced a possible penalty of [state maximum possible penalty] as a result of those charges.
(2) You are to consider this evidence only as it relates to [name witness]'s credibility and as it may tend to show [name witness]'s bias or self-interest. [M Crim JI 5.13.]
The usage note for that instruction states that the trial court should only provide it when the jury has heard evidence of the sentencing advantages of a plea deal. More specifically, it addresses evidence concerning the possible penalty faced by the accomplice had he or she not made the plea deal. It also states that, if the defendant has been charged with the same offenses, the jury should be instructed not to consider the penalty when deciding the case. See M Crim JI 5.13, Use Note.
In this case, defense counsel chose not to present evidence about the maximum sentences that might be applicable to Stamps, which, as already discussed, did not amount to ineffective assistance. Because there was no evidence about the possible penalty that Stamps avoided, there was no basis for requesting the instruction. See People v Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). Additionally, the instruction provides that the jury should only use the information about the possible penalty that was avoided when evaluating the witness's credibility. See M Crim JI 5.13(2). The trial court instructed the jury that it should carefully evaluate Stamps's testimony as an accomplice and that it should consider her plea deal when assessing her credibility, which was consistent with defense counsel's request. Defense counsel might reasonably have concluded that the trial court's instruction consistent with M Crim JI 5.6 was sufficient by itself to protect Simpson's rights; as such, on this record, it cannot be said that no reasonable lawyer in his position would refrain from requesting M Crim JI 5.13. See Gioglio, 296 Mich App at 22-23.
Simpson has not shown that defense counsel provided ineffective assistance.
D. EXPERT TESTIMONY
1. STANDARD OF REVIEW
Simpson also argues on appeal that the trial court erred when it allowed Sergeant Richard Kinsey of the Chelsea Police Department to testify as an expert and offer testimony about getaway drivers. Defense counsel objected to Sergeant Kinsey's testimony on the ground that he did not have a foundation for his opinion, but did not object after the trial court qualified Sergeant Kinsey as an expert. Accordingly, this claim of error is unpreserved. See People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001).
This Court reviews a trial court's decision to admit expert testimony for an abuse of discretion. See People v Brown, 326 Mich App 185, 195; 926 NW2d 879 (2018). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. See Unger, 278 Mich App at 217. This Court, however, reviews de novo whether the trial court properly interpreted and applied the relevant rules of evidence. See McFarlane, 325 Mich App at 517. Additionally, because the claims involving Sergeant Kinsey's testimony were not preserved for appellate review, this Court's review is limited to determining whether there was plain error that affected Simpson's substantial rights. See Carines, 460 Mich at 763.
2. ANALYSIS
At trial, Sergeant Kinsey opined that—in his experience—the call that night was more serious than a normal breaking and entering. He felt that this event likely involved putting a gun in a homeowner's face and he offered that the perpetrator in cases like this one generally expected that there would be a lot of money or drugs in the home. After Sergeant Kinsey made these remarks, he offered that Simpson was acting as a getaway driver or lookout and stated that he expected there to be additional suspects for that reason. Defense counsel objected that Sergeant Kinsey had no foundation for offering testimony about getaway drivers or for opining that Simpson was a getaway driver. The trial court sustained the objection. The prosecutor then asked the trial court to admit Sergeant Kinsey as an expert and allow him to testify generally about the kind of factors that involve "putting somebody in place to be a getaway driver." The trial court agreed that Sergeant Kinsey could offer such expert testimony.
Sergeant Kinsey offered that "the more experienced person" would normally be selected to drive the getaway car because the more experienced man would be calm and ready to roll. He also stated that it was his experience that the man with the longer criminal history would send in the "younger dumber guy to go up and do the robbery." He also testified generally about the differences between home invasions that occur at night and those that occur during the day. He stated that in normal home invasions, the perpetrator does not want to encounter anyone; so he or she will break and enter during the day when everyone is at work. By contrast, home invasions that occur at night tend to be directed at a home where the perpetrator intended to confront the homeowner and was looking for loot.
Simpson does not dispute that Sergeant Kinsey was qualified by training and experience to offer expert testimony about home invasions and robberies. See MRE 702. In any event, the trial court did not err when it determined that Sergeant Kinsey was qualified to offer such testimony. Sergeant Kinsey had been an officer in Ann Arbor for 27 years and worked as a detective for 20 of those years. He stated that he ran the surveillance crew, the special investigations unit, and later the major crimes unit. He also taught at the police academy for 16 years. A such, he was clearly qualified by knowledge, skill, experience, and training to offer expert testimony about the factors involved in different types of home invasion and robbery calls. See MRE 702.
Sergeant Kinsey's testimony about the different types of home invasions was also helpful to the jury's understanding of the evidence and was beyond the ken of ordinary experience. See McFarlane, 325 Mich App at 518. As such, his comments about the general characteristics of home invasions were proper. There was, however, no evidence concerning Simpson's criminal record, his experience, or his ability to remain calm in a stressful circumstance. There was also no evidence that he caused a younger, dumber cohort to perform the robbery. Accordingly, Sergeant Kinsey's statement that it was his experience that getaway drivers generally had more experience or got younger, dumber accomplices to do the actual robbery had no logical relevance to any fact in evidence. See MRE 702; see also MRE 703. Instead, his testimony was akin to improper profile testimony. See People v Murray, 234 Mich App 46, 54-56; 593 NW2d 690 (1999). Therefore, it was an obvious error to allow Sergeant Kinsey to offer testimony that getaway drivers tend to be the more experienced criminals and that they avoid participation in the physical entry because they have more serious criminal records. See Carines, 460 Mich at 763. Nevertheless, because there was no evidence tending to suggest that Simpson had any of the characteristics of the profile that Sergeant Kinsey described, any prejudice did not influence the jury's verdict. See id.
Simpson also complains that Sergeant Kinsey should not have been allowed to offer an opinion that Simpson was in fact the getaway driver on the basis of the evidence that Simpson was sitting in a car near the home that was broken into. Whether and how Simpson might have participated in the robbery and home invasion was a matter for the jury to determine, and Sergeant Kinsey's opinion that Simpson was the getaway driver amounted to an opinion that Simpson had in fact aided and abetted others in the commission of the offense. Sergeant Kinsey was in no better position than the jury to assess the evidence, and he otherwise could not offer an opinion concerning Simpson's guilt. See People v Fomby, 300 Mich App 46, 52-53; 831 NW2d 887 (2013). Notably, however, the trial court actually sustained defense counsel's objection to Sergeant Kinsey's testimony to that effect during his direct examination. The trial court did not specifically instruct the jury to disregard his testimony at that time, but it later instructed the jury that it was not to consider testimony that the court did not let in. Sergeant Kinsey did not repeat his opinion that Simpson was the getaway driver in his direct testimony after the trial court qualified him to testify generally about home invasions and robberies. Instead, defense counsel questioned Sergeant Kinsey about his beliefs on cross-examination and again elicited testimony that Sergeant Kinsey believed that Simpson was a getaway driver and that both cars were getaway cars. Generally, error caused by a party's own affirmative conduct constitutes "invited error"; and a party waives his or her right to seek appellate review of invited error. See People v Jones, 468 Mich 345, 352 n 6; 662 NW2d 376 (2003). In any event, the error was not outcome-determinative.
The evidence that Simpson had in fact agreed to be the driver for McIntyre was strong and did not depend on Sergeant Kinsey's opinion. Although the prosecutor mentioned Sergeant Kinsey's testimony that Simpson was in the driver's seat, he did not argue that the jury should accept Sergeant Kinsey's opinion and use it as evidence that Simpson was the getaway driver. It was clear to the jury that Sergeant Kinsey approached the cars on the night at issue under the assumption that Simpson and Stamps were involved. As such, his opinion was not particularly shocking or compelling. The trial court also instructed the jury that the jury alone was responsible for deciding the facts of the case, that it should not consider evidence that the court did not let in such as the sustained objection to Sergeant Kinsey's testimony, and that it did not have to accept an expert's opinion, but should decide for itself how much weight to give it. These instructions mitigated any harm caused by allowing Sergeant Kinsey to testify on cross-examination that, in his opinion, Simpson was a getaway driver. See Unger, 278 Mich App at 235 (stating that courts presume that the jury follows its instructions and that instructions cure most errors). There was strong circumstantial evidence that Simpson knew about McIntyre's involvement in the planned robbery and home invasion and chose to actively aid him in his efforts to commit those offenses. On this record, Simpson has not shown that any plain error with respect to how Sergeant Kinsey's testimony affected the outcome of his trial. See Carines, 460 Mich at 763.
E. MOTION IN LIMINE
1. STANDARD OF REVIEW
Finally, Simpson argues that the trial court deprived him of his right to testify on his own behalf when it denied his motion in limine to bar the prosecution from using Simpson's previous conviction of armed robbery to impeach him should he testify. This Court reviews a trial court's evidentiary decisions for an abuse of discretion. See Roper, 286 Mich App at 90. A trial court abuses its discretion when its decision falls outside the range of reasonable outcomes. Id. at 84. This Court reviews de novo whether the trial court properly applied the relevant rules of evidence. Id. at 91. This Court also reviews de novo questions of constitutional law, such as whether the trial court deprived the defendant of his right to testify on his own behalf. See People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
2. ANALYSIS
In People v Finley, 431 Mich 506, 511; 431 NW2d 19 (1988) (opinion by RILEY, C.J.), our Supreme Court addressed whether to adopt the rule stated in Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984). Under the rule stated in Luce, a defendant must testify at trial in order to preserve a claim of error involving improper impeachment with a prior conviction. Id. Writing for three justices, Chief Justice Riley recognized that the primary purpose of the rule stated in Luce was to facilitate appellate review. Id. at 517. Justice Riley noted that a defendant's statement of his or her intent to testify and an offer of proof would not be adequate for appellate review because a defendant's promise to testify could not be enforced and there was no guarantee that the actual testimony would mirror the offer of proof. Id. She agreed that those considerations justified holding that a defendant "must testify in order to preserve for review the issue of improper impeachment by prior convictions." Id. at 521. Justice Riley also determined that a defendant's failure to satisfy this preservation requirement waived the claim of error. Id. at 526. Although Justice Brickley disagreed about the proper application of the rule to the case before the Court, he agreed that the Court should adopt the rule stated in Luce. See Finley, 431 Mich at 531 (BRICKLEY, J., concurring in part).
Our Supreme Court has since reaffirmed the rule stated in Finley and extended it to a trial court's ruling on a motion in limine allowing into evidence a defendant's exercise of his or her Fifth Amendment privilege. See People v Boyd, 470 Mich 363, 378; 682 NW2d 459 (2004). Moreover, as the Court explained in Boyd, when a defendant chooses not to testify at trial, a claim of error premised on a trial court's ruling in limine that purportedly prevented the defendant from testifying becomes unreviewable; accordingly, the plain-error test stated in Carines is inapplicable. Id. at 378 n 11. Under those circumstances, the Court explained, a court would have to review the claim of error in a "vacuum and engage in speculation regarding whether the statement would have been properly admissible." Id. at 377.
In this case, Simpson chose not to testify. As result, this Court would be left to speculate about numerous possible events affecting resolution of his claim: whether Simpson might have chosen not to testify on some other ground, whether the prosecution would have actually attempted to impeach Simpson with his prior robbery conviction, whether the trial court might have changed its mind about the admissibility of the evidence at trial, or might have determined that the evidence was admissible on some other ground given Simpson's actual testimony, such as under MRE 404(b), and whether any error was harmless. This Court, however, will not speculate in that way. See Boyd, 470 Mich at 377. By failing to testify at trial, Simpson waived this claim of error, see id. at 378; see also Finley, 431 Mich at 526; accordingly, there is no error to review, see People v McDonald, 303 Mich App 424, 429; 844 NW2d 168 (2013).
III. MCINTYRE'S CLAIMS OF ERROR IN DOCKET NO. 349130
A. SUFFICIENCY AND WEIGHT OF THE EVIDENCE
1. STANDARD OF REVIEW
We first address McIntyre's claims that the prosecution failed to present sufficient evidence to support his convictions and that the jury's verdict was contrary to the great weight of the evidence. This Court reviews a challenge to the sufficiency by "examining the record evidence de novo in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt." This Court must resolve all conflicts in the evidence in favor of the prosecution. McFarlane, 325 Mich App at 513 (quotation marks and citation omitted). This Court reviews a trial court's decision whether to grant a new trial on the ground that the verdict was contrary to the great weight of the evidence for an abuse of discretion. See Roper, 286 Mich App at 84.
2. CONSPIRACY TO COMMIT HOME INVASION
McIntyre first argues that there was insufficient evidence to support his conviction of conspiracy to commit home invasion. "Any person who conspires together with 1 or more persons to commit an offense prohibited by law . . . is guilty of the crime of conspiracy . . . ." MCL 750.157a. A conspiracy is an illegal agreement. See People v Seewald, 499 Mich 111, 117; 879 NW2d 237 (2016). The crime of conspiracy is complete once the parties form the agreement to accomplish the offense; there is no need for a prosecutor to prove that the parties took some overt act in furtherance of the conspiracy and the prosecutor need not prove that the parties accomplished their purpose. Id. The prosecutor must, however, prove that the parties had the specific intent to combine to pursue the criminal objective and that they shared knowledge of that intent. See People v Lowery, 274 Mich App 684, 693; 736 NW2d 586 (2007). Although the prosecutor must show that the parties made the agreement and had knowledge of the intent to commit the offense, the prosecutor does not have to present direct proof of the conspiracy—the prosecutor may prove the conspiracy through the circumstances concerning the events and through the parties' conduct. See People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011).
Stamps admitted that she agreed with Winburn's plan to break into the home of someone whom Winburn knew and steal the man's medical marijuana plants from him. She stated that Winburn intended to steal the medical marijuana plants to get money to help her get her own place. She further related that Winburn said he could not himself go inside because the homeowner knew him. Breaking and entering a dwelling with the intent to commit larceny while someone else is lawfully present constitutes first-degree home invasion. See MCL 750.110a(2). Accordingly, there was undisputed evidence that Winburn and Stamps had conspired to commit first-degree home invasion; the only question was whether McIntyre joined that conspiracy and shared the intent and knowledge of the conspiracy.
Stamps testified that Winburn told her about his plan to break into the home on the Sunday before the night at issue. Winburn told her that, because he could not go inside the man's home, he intended to lead another car to the home with the grow operation. Stamps's testimony permitted an inference that Winburn had already recruited others to assist him or that he planned on recruiting others to assist him and that he understood that the owner of the medical marijuana plants—O'Connor—would be home during the theft. See McFarlane, 325 Mich App at 515-516.
Stamps also testified about meetings and conversations between Winburn and McIntyre that preceded the breaking and entering. She stated that McIntyre called Winburn on Sunday while Winburn was explaining the plan to her. She said Winburn told her that he was going to meet McIntyre and then drove Stamps in Stamps's car to another location. Simpson and McIntyre also drove to that location, and Winburn and McIntyre got out of their respective cars and held a discussion. Phone evidence corroborated that Simpson and McIntyre communicated with Winburn at about that time, which was consistent with arranging to meet. After the meeting, Winburn informed Stamps that, by that same time tomorrow, everything was going to be different. The evidence about this meeting with McIntyre along with Winburn's statement that things were going to be different for Stamps—whom he already identified as the planned beneficiary of the home invasion—suggested that McIntyre had already agreed with Winburn's plan. The meeting and events of the following evening provided additional evidence that McIntyre had agreed to the plan.
Stamps testified that she, Winburn, McIntyre, and Simpson all met at Winburn's home at about 8:30 or 9:00 p.m. on the next day. She testified that Winburn spoke about items that he intended to use for the breaking and entering: he looked for red handled wire cutters and asked her for a stocking to use as a mask. She saw Winburn give McIntyre the stocking that she had earlier provided. Stamps did not hear McIntyre agree to or discuss any part of a plan to break into the home with Winburn, but the evidence that he and Simpson met with Winburn while Winburn was preparing for the breaking and entering was evidence that McIntyre and Simpson knew about Winburn's plan. Further, the evidence that Winburn handed the stocking to McIntyre, which McIntyre accepted, was circumstantial evidence that McIntyre had agreed to participate in the planned breaking and entering and accepted the stocking for that purpose. Stamps also testified that she asked Simpson about his scrubs and both Simpson and McIntyre laughed and responded that they wanted Simpson to look as though he were coming home from work. That testimony likewise permitted an inference that McIntyre and Simpson had already agreed to participate in Winburn's plan and had taken steps to further the plan. See id. That evidence was by itself sufficient to permit a reasonable jury to find beyond a reasonable doubt that McIntyre conspired with Simpson, Winburn, and Stamps to commit first-degree home invasion. The testimony and evidence about subsequent events solidified those inferences.
There was testimony and evidence that Simpson drove McIntyre to O'Connor's home by following Winburn, which was what Winburn told Stamps would happen. Testimony and corroborating evidence established that it took more than one hour for the four of them to get to O'Connor's home and that it was difficult to find the remote home when they arrived. There was also testimony and evidence that Winburn coordinated two stops with McIntyre and Simpson and that McIntyre purchased items that would be useful for stealing marijuana plants. There was evidence that McIntyre and Winburn left together and broke into O'Connor's home. The level of coordination involved in the events suggested that Winburn, McIntyre, and Simpson had agreed to a specific plan and were executing the plan by the time they left Winburn's home.
The prosecutor presented compelling evidence that McIntyre joined Winburn's conspiracy with Stamps and agreed to break into O'Connor's home while O'Connor was present and steal O'Connor's medical marijuana plants. Id. at 513.
3. IDENTITY AND GREAT WEIGHT
Identity is an element of every criminal offense. See People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). On appeal, McIntyre argues that the evidence identifying him as the man who broke into O'Connor's home and fought with O'Connor was contrary to the great weight of the evidence. More specifically, McIntyre catalogs a series of inaccuracies in O'Connor's testimony and asserts that those inaccuracies demonstrated that O'Connor mistakenly identified him as the person who entered his home. McIntyre's argument is meritless.
McIntyre overstates the inaccuracies in O'Connor's testimony. O'Connor identified McIntyre as his assailant at trial, but he acknowledged that he came to that conclusion on the basis of his build and features—such as his jawline. O'Connor testified that the man wore pantyhose over his head, which were stretched. He stated that the man had a stubbly beard with a scar above the beard, dirty blonde hair, and dark eyes. He further stated that he was a skinny white man. O'Connor also thought that the man was taller than he was and O'Connor stated that he himself was 5'6" tall.
Although McIntyre was actually about the same height as O'Connor, given that the two men fought for the most part of their encounter, it is not surprising that O'Connor thought his assailant was taller. The fact that his assailant had black pantyhose stretched over his face also made it less likely that O'Connor would accurately identify his assailant's eye and hair color, and could easily lead O'Connor to overstate the growth of his assailant's facial hair. Nevertheless, O'Connor's description was consistent with McIntyre in several important respects: McIntyre was a slender, Caucasian man and the images of McIntyre in Trooper Ryan Meier's car show that he had a distinctive jawline and facial features and wore a goatee, which might serve as the basis for an identification. McIntyre also noted that O'Connor identified his assailant as being much younger than McIntyre's age. However, as can be seen in the images of McIntyre admitted at trial, and as the trial court observed at a hearing, McIntyre appears younger than his actual years and the stocking likely made it more difficult for O'Connor to accurate identify his assailant's age.
McIntyre makes much of the fact that O'Connor stated that his assailant had on a black hooded sweatshirt during the attack, whereas the video evidence from Meijer and the evidence of McIntyre's arrest the following morning show that he wore a white T-shirt. There was no reason to believe that McIntyre could not have put on clothing over his white T-shirt before breaking into O'Connor's home and, as shown in the video from Trooper Meier's cruiser, McIntyre was arrested with a black windbreaker that had a hood. As such, a reasonable jury could conclude that O'Connor's description was consistent with McIntyre's actual attire even if O'Connor mistook a black hooded windbreaker for a black hooded sweatshirt. There was also evidence that McIntyre himself stated on a jail call that he obtained a fresh coat and hat, which suggested that he discarded whatever he had been wearing. Accordingly, while there were flaws in O'Connor's testimony, those flaws were not so significant that this Court might say that no reasonable jury could rely on his identification. See Lemmon, 456 Mich at 643-644.
In any event, there was independent evidence that established McIntyre's identity as the man who broke into O'Connor's home, fought with O'Connor, and fired shots at him. Stamps testified that Winburn drove her to O'Connor's home and that Simpson drove McIntyre. The four of them arrived in the vicinity of O'Connor's home shortly before O'Connor's 911 call, as was corroborated by phone evidence. Stamps testified that, after they arrived in the vicinity of O'Connor's home, only Winburn and McIntyre got out. O'Connor testified that he heard someone breaking into his home and heard Winburn's voice demanding that O'Connor let them inside. After the persons forced entry into his home, O'Connor did not encounter or fight with Winburn. The evidence that only Winburn and McIntyre left the cars and that O'Connor heard Winburn, but fought with someone other than Winburn, was evidence from which a reasonable jury could conclude that McIntyre was the man with whom O'Connor fought. See McFarlane, 325 Mich App at 516.
Additionally, Stamps testified that Winburn returned to her car without McIntyre and told her that McIntyre had had problems entering O'Connor's home. She stated that Winburn said he kicked in the door. That testimony too suggested that McIntyre was the second person with Winburn when Winburn was demanding that O'Connor open the door. Stamps testified that Winburn did not know where McIntyre was at that time and drove around looking for him. She stated that they heard shots while looking for McIntyre and that Winburn spoke with Simpson after the shots. He also earlier asked her to try and contact McIntyre, which she attempted without any success. The totality of that evidence showed that three of the four companions were accounted for when the shots were fired and constituted powerful evidence that McIntyre was the man who fought with O'Connor and fired the shots. See id.
Finally, the 911 recording captured the voice of O'Connor's assailant, and Stamps testified that the voice on the 911 recording was not that of Winburn or Simpson. The 911 recording showed that O'Connor's assailant had a distinctive cadence and manner of speaking. The jury also saw dash video from Trooper Meier's cruiser in which McIntyre spoke to Trooper Meier and heard jail calls from McIntyre to others. Those recordings of McIntyre's voice demonstrated that McIntyre had the same distinctive cadence and manner of speech as the assailant recorded on the 911 call, which further supported his identification as O'Connor's assailant.
Taken together, there was strong evidence that established McIntyre's identity as the man who broke into O'Connor's home with Winburn and who attacked O'Connor.
The question being one of credibility posed by diametrically opposed versions of the events in question, the trial court was obligated, despite any misgivings or
inclinations to disagree, to leave the test of credibility where statute, case law, common law, and the constitution repose it in the trier of fact. [Lemmon, 456 Mich at 646-647 (quotation marks omitted).]With all of the above in mind, the identification of McIntyre was not contrary to the great weight of the evidence.
4. STANDARD 4 BRIEF
In his Standard 4 brief, McIntyre argues that the identification evidence was insufficient to support his convictions. As already discussed, there was strong—if not overwhelming—evidence that identified McIntyre was the man who broke into O'Connor's home, fought with O'Connor, and fired shots at him. Accordingly, there was sufficient evidence from which a rational jury could conclude that McIntyre was the person who committed the offenses arising from those acts. See McFarlane, 325 Mich App at 516.
McIntyre also maintains that his conviction of armed robbery must be set aside because there was no evidence of a larceny. In order to convict McIntyre of armed robbery, the prosecutor had to prove—in relevant part—that McIntyre was armed when he used force or violence against a person "in the course of committing a larceny." MCL 750.530(1); see also MCL 750.529. As already discussed, there was evidence to establish that McIntyre broke into O'Connor's home, fought with O'Connor, struck him with a handgun, and fired shots at him. This evidence was competent to prove that McIntyre was armed and used force or violence against O'Connor. As such, he could be found guilty of armed robbery if he did those things in the course of committing a larceny. The Legislature defined "in the course of committing a larceny" to include any act that occurs in an attempt to commit a larceny. See MCL 750.530(2).
In this case, the prosecutor presented evidence that permitted a rational jury to conclude that McIntyre conspired with Winburn to break into O'Connor's home and steal medical marijuana plants. From that evidence, a rational jury could conclude that McIntyre broke into O'Connor's home with Winburn's help and assailed O'Connor as part of his effort to steal the medical marijuana plants. This was sufficient to support a finding that McIntyre acted in the course of committing a larceny as defined under MCL 750.530(2). See McFarlane, 325 Mich App at 516.
B. LOSS OF EVIDENCE
1. STANDARD OF REVIEW
McIntyre next argues that this Court should dismiss the charges against him because the prosecutor suppressed a black hooded sweatshirt that would have shown that McIntyre could not have been O'Connor's assailant. This Court reviews de novo the proper application of constitutional principles, but reviews for clear error any factual findings underlying the trial court's application of law. See People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016).
2. ANALYSIS
As our Supreme Court has recognized, under the decision in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), it is a violation of due process for the prosecution to suppress evidence favorable to the defense. See People v Chenault, 495 Mich 142, 149; 845 NW2d 731 (2014). To establish a violation of due process, the defendant must show that the prosecution suppressed evidence, that the evidence was favorable to the defense, and that the evidence was material. Id. at 150. The prosecution is responsible for all evidence within its control, even evidence that is unknown to it. It is also irrelevant whether the prosecution suppressed the evidence in bad faith or good faith. Id. Evidence is favorable to the defense if it is exculpatory or capable of impeaching the prosecution's case. Evidence is material when there is a reasonable probability that, had it been disclosed to the defense, the result of the trial would have been different. Id.
At trial, McIntyre's defense counsel acknowledged that he knew that police officers photographed an oversized black sweatshirt that was found in the Ford Taurus, but did not realize until the start of trial that the officers had not seized the sweatshirt. He told the trial court that the sweatshirt was critical to the defense because—in his view—it would exonerate McIntyre. More specifically, he stated that he could show the jury that it was too big for McIntyre. The trial court disagreed and determined that whether the sweatshirt should have been seized was a matter of cross-examination and did not warrant dismissal.
O'Connor agreed that the man who attacked him wore a black hoodie sweatshirt. He stated that he did not recall if it was a pullover or had a zipper. Trial testimony established that McIntyre wore a white T-shirt on the night at question, although he was also found with a black windbreaker jacket that had a hood. There was also a jail call in which McIntyre indicated that he obtained fresh clothing. Defense counsel questioned Trooper Andrew Tisch about a black hoodie sweatshirt that was found in the Ford Taurus. Trooper Tisch agreed that it was wet to the touch when they found it. He stated that they photographed it, which included a photograph of the sweatshirt spread out on the hood of the car that showed how large it was. Trooper Tisch testified that the sweatshirt was not logged into their property.
Police officers generally have no obligation to develop evidence for the defense. See People v Anstey, 476 Mich 436, 461; 719 NW2d 579 (2006). Even when officers develop evidence, the officers are not obligated "to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Arizona v Youngblood, 488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). In order to establish a due-process violation premised on the failure of officers to preserve evidence that might have been useful to the defense, the defendant must show the officers acted in bad faith by failing to preserve the evidence. Id.
During the investigation, officers documented the existence of the sweatshirt with photographs. They did not seize the sweatshirt or otherwise test it; however, there is no indication in the record that officers knew at the time that the sweatshirt had any significance to the case such that it should have been seized—as opposed to merely documented. Trooper Tisch did not know why the officers did not seize the sweatshirt—he could not say if it was determined that it had no evidentiary value or whether the failure to seize it was an oversight. He agreed that smaller people frequently wear oversized clothing, but he stated that it was his belief at the time that they searched the car that the sweatshirt belonged to Simpson because Simpson was a "larger man," and he speculated that Simpson might have gotten out of the Taurus at some point during the storm, which would explain why it was wet. As such, it cannot be said that the officers acted in bad faith when they failed to seize and preserve the sweatshirt. Youngblood, 488 US at 58; see also People v Jones, 301 Mich App 566, 580-581; 837 NW2d 7 (2013). Because the officers did not seize the sweatshirt, it was not under the prosecution's control and the prosecutor cannot be faulted for failing to provide the sweatshirt. See Dimambro, 318 Mich App at 213; see also United States v Graham, 484 F3d 413, 417 (CA 6, 2007). Additionally, McIntyre has not shown that there was a reasonable probability that the outcome might have been different had he been able to show the jury the actual sweatshirt.
There was strong evidence—other than O'Connor's identification of McIntyre at trial—that showed that McIntyre was the man who attacked O'Connor. As already discussed, Stamps's testimony established that McIntyre and Winburn coordinated their activity and drove separately to the vicinity of O'Connor's home. She also stated that Winburn and McIntyre were the only two of the four of them who got out and left the cars. She said that Winburn returned about 30 minutes later without McIntyre and drove around looking for him. It was then that they heard the shots. After hearing the shots, Winburn conferred with Simpson—who was still in the Ford Taurus—and police officers arrived shortly thereafter. This testimony showed that Simpson could not have been the person who attacked O'Connor—not only because he did not fit the description—but also because the undisputed evidence showed that he was still in the car after Winburn returned and they heard the shots.
McIntyre suggests that the oversized sweatshirt was proof that the real perpetrator returned to the car and discarded the sweatshirt, which was too large for McIntyre to wear. Setting aside that slender persons can and do wear oversized clothing, there is no evidence from which a reasonable jury could conclude that the perpetrator had in fact worn that specific sweatshirt. The evidence showed that Stamps and Simpson remained with the cars throughout the events at issue. Although Winburn returned to the cars and spoke to Simpson in the Taurus, he returned to the car before the shots were fired, which demonstrated that he could not have been the shooter. Given the large size of the sweatshirt, it was reasonable to infer that it belonged to Simpson and there was no evidence that Simpson ever left the car and he did not in any way match O'Connor's description. While O'Connor's description was imprecise, McIntyre fit his description better than any of the other accomplices. There was also evidence that McIntyre was arrested with a black hooded windbreaker and a reasonable jury could conclude that O'Connor was mistaken when he stated that the man who attacked him was wearing a black hooded sweatshirt, but that he was nevertheless correct to the extent that the perpetrator had on a black hooded garment like the windbreaker. Moreover, there was evidence that suggested that McIntyre discarded clothing and obtained fresh clothing before his arrest. Finally, McIntyre's defense lawyer actually presented his theory about the oversized sweatshirt to the jury—albeit using the photographs rather than the actual sweatshirt.
Given the strength of the identification evidence and the implausibility of McIntyre's theory that the black sweatshirt was evidence that he was not the perpetrator, it is not surprising that the jury rejected his theory and there is no basis for concluding that, had McIntyre been able to show the actual sweatshirt to the jury, that the jury would have reached any other result. Consequently, even if the prosecutor could be said to have suppressed the sweatshirt as a result of the police officers' failure to seize and preserve it, the error would not warrant relief because the evidence was not material. See Chenault, 495 Mich at 150.
The trial court did not err when it denied McIntyre's motion to dismiss.
C. INEFFECTIVE ASSISTANCE: EXPERT WITNESS
1. STANDARD OF REVIEW
McIntyre argues that defense counsel's failure to secure an expert on eyewitness identification amounted to ineffective assistance. Because the trial court did not hold an evidentiary hearing on this claim, this Court's review is limited to mistakes that are apparent on the record. See Gioglio, 296 Mich App at 20. This Court reviews de novo as a question of constitutional law whether a particular act or omission fell below an objective standard of reasonableness under prevailing professional norms and prejudiced the defendant's trial. Id. at 19-20.
2. ANALYSIS
To establish his claim of ineffective assistance, McIntyre must demonstrate that defense counsel's failure to call an expert on eyewitness testimony fell below an objective standard of reasonableness under prevailing professional norms. See id. To overcome the presumption that defense counsel provided effective assistance, McIntyre must show that no reasonable lawyer in defense counsel's position would have refrained from calling such an expert. Id. at 22-23. Simpson must also demonstrate that the act or omission that fell below an objective standard of reasonableness prejudiced his trial. Id. at 23. An act or omission prejudices a defendant's trial when there is a reasonable probability that, but for the act or omission, the outcome would have been different. Id.
Counsel for McIntyre carefully examined the discrepancies in O'Connor's description of his assailant and the evidence showing how McIntyre appeared on the night at issue. He got O'Connor to agree that he identified his assailant as a young man, from 25 to 30 years of age, with dirty blonde hair, a trimmed mustache or beard, light colored jeans, and a black hoodie sweatshirt. Defense counsel also got O'Connor to agree that the man was about 5'9," that he weighed 160 to 170 pounds, and had dark eyes. O'Connor stated as well that the man had a scar or tattoo somewhere on his face. O'Connor stated that the man was taller than him—and he was 5'6"—but not much heavier. Defense counsel also elicited testimony from O'Connor about the dramatic and chaotic conditions involved in his struggle with the man who broke into his home.
Defense counsel also established that many of the characteristics that O'Connor identified did not fit McIntyre on the night at issue. Defense counsel showed that McIntyre was not wearing a black sweatshirt during the Meijer visit and was not wearing one when he was apprehended. Although he had a black jacket on him when he was arrested, the jacket was not a sweatshirt. He also wore camouflage pants that night—not light colored jeans. Defense counsel asserted that McIntyre had no scars or tattoos on his face, he was not taller than O'Connor, and he had blue eyes.
Under the circumstances, a reasonable defense lawyer in defense counsel's position could choose to test the credibility of O'Connor's identification of McIntyre through cross-examination alone. Although O'Connor identified McIntyre as the man who attacked him on the night at issue, the jury heard that he made his identification on the basis of a few features that were visible through the nylon stocking that his assailant used for a mask. He stated that he determined that McIntyre was the same man by his "facial hair," the "length of his hair," his "dark eyes," his "jawline," and the fact that McIntyre had the "same body build" and because he was "taller." He further did not state that he actually recognized McIntyre. Given the discrepancies between these identifying features and McIntyre's features, the jury had to have been aware that O'Connor's identification was limited. The jury also heard about the conditions at the time and understood that those conditions made it difficult for O'Connor to identify his assailant.
Although an expert might have been able to offer testimony about the limits of eyewitness identification, defense counsel clearly made the jury aware of the limitations applicable to O'Connor's identification on cross-examination and it is unclear that an expert's testimony would have added much weight to the evidence already before the jury. As such, it was reasonable for defense counsel to forgo calling an expert. See People v Blevins, 314 Mich App 339, 351; 886 NW2d 456 (2016). Accordingly, McIntyre has not overcome the presumption that defense counsel's decision fell within the range of competent representation. See Gioglio, 296 Mich App at 22-23.
McIntyre has also not shown that defense counsel's approach prejudiced his trial. As already discussed, there was strong circumstantial evidence that McIntyre was the man who broke into O'Connor's home and attacked him with a handgun. There were also recordings from which the jury could compare McIntyre's known voice with that of the intruder captured on the 911 recording. The additional evidence was compelling. For that reason, even if an expert testified about the inherent weakness of eyewitness identification, it was not reasonably probable that the testimony would have altered the outcome of the trial. See id. at 23.
D. BILL OF PARTICULARS
1. STANDARD OF REVIEW
McIntyre argues that the trial court deprived him of a fair trial when it denied his motion for a bill of particulars. This Court reviews de novo whether the trial court properly applied constitutional law. See Dimambro, 318 Mich App at 212. This Court also reviews de novo the proper interpretation and application of statutes and court rules. See Roper, 286 Mich App at 91. When the trial court has the discretion to order a bill of particulars, this Court reviews the trial court's exercise of discretion for abuse. See People v Southern, 306 Mich 324, 326; 10 NW2d 901 (1943). A trial court abuses its discretion when its decision falls outside the range of reasonable outcomes. Roper, 286 Mich App at 84.
2. ANALYSIS
A criminal defendant has a constitutional right to be informed of the charges against him or her. See US Const, Am VI; Const 1963, art 1, § 20. The prosecution must inform the accused of the nature and cause of the accusations with sufficient particularity to allow the accused to meet the accusations and prepare for trial. See Bartell v United States, 227 US 427, 431; 33 S Ct 383; 57 L Ed 583 (1913). As our Supreme Court has explained, the prosecutor is not required to make a detailed recital of the evidence that he or she intends to present to prove each element. See People v Quider, 172 Mich 280, 285; 137 NW 546 (1912). Rather, the prosecutor need only state the elements sufficient to allow the defendant to meet the charges and prepare for his or her defense. Id. at 286. The Legislature has also established procedures to ensure that a criminal defendant has been informed of the charges consistent with the constitutional requirements.
The Legislature provided for indictments under MCL 767.43, and for the use of an information under MCL 767.44 and MCL 767.45. The prosecutor generally cannot file an information until after a defendant has had a preliminary examination. See MCL 767.42; see also MCR 6.112(B). Additionally, if the prosecutor provides the defendant with a short-form information as allowed under MCL 767.44, the defendant is entitled to a bill of particulars upon request. However, when the prosecutor has filed an information as provided under MCL 767.45, the defendant is not entitled to a bill of particulars. In such cases, the trial court has the discretion to grant a bill of particulars to ensure that the defendant has been adequately informed of the charges against him or her. See People v Tenerowicz, 266 Mich 276, 287-288; 253 NW 296 (1934). Moreover, even if a trial court abuses its discretion when denying a motion for a bill of particulars, the defendant must show that the decision to deny the motion prejudiced his or her defense before this Court will grant relief. Id. at 288-289; see also MCR 6.112(G).
The district court held a preliminary examination in September 2017. O'Connor and Stamps both testified at the preliminary examination, and O'Connor identified McIntyre as the man who attacked him with a firearm on the night at issue. After the district court bound over McIntyre to the circuit court, the prosecutor provided McIntyre with an information that adequately put McIntyre on notice of the charges alleged against him. Because O'Connor and Stamps testified about McIntyre's participation in the crimes at the preliminary examination, the preliminary examination was itself adequate to inform McIntyre of the nature and elements of the charges against him. See People v Earl, 299 Mich 579, 581; 300 NW 890 (1941); see also People v Jones, 75 Mich App 261, 269-270; 254 NW2d 863 (1977). Therefore, the trial court did not abuse its discretion when it denied McIntyre's motion for a bill of particulars.
McIntyre has also not identified any prejudice that might have been occasioned by the prosecutor's failure to give a bill of particulars—he merely asserts error without any discussion of how he might have altered his defense had he been provided with more information about the charges against him than was offered at the preliminary examination. Consequently, even if the trial court had abused its discretion, McIntyre would not be entitled to any relief. See Tenerowicz, 266 Mich at 288-289.
E. JUROR BIAS
1. STANDARD OF REVIEW
McIntyre next argues that the trial court deprived him of a fair trial by denying his challenge for cause of a juror who admitted that she had a bias against repeat offenders. This Court reviews de novo whether a defendant was denied his right to an impartial jury. See People v Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012). This Court reviews for clear error the trial court's factual findings underlying its decision to retain or excuse a juror. Id.
2. ANALYSIS
A defendant has a constitutional right to be tried by a fair and impartial jury drawn from a fair cross section of the community. See Bryant, 491 Mich at 595. Voir dire is the process by which the litigants may test the jurors' qualifications. See People v Harrell, 398 Mich 384, 388; 247 NW2d 829 (1976). When impaneling the jury, the parties may challenge jurors for cause, and the trial court must rule on each challenge. See MCR 2.511(D). One ground for challenging a juror is that the juror was biased for or against a party. See MCR 2.511(D)(2). The trial court may require a challenged juror to answer questions pertinent to the challenge. See MCR 2.511(D). Jurors are presumptively competent and impartial, and the party challenging the juror bears the burden of proving the existence of a ground for disqualification. See People v Johnson, 245 Mich App 243, 256; 631 NW2d 1 (2001). If the trial court is satisfied that the juror will be impartial, the court should not excuse the juror for cause. See MCL 768.10. However, if the court determines that the ground for challenge is present, it should excuse the juror from the panel. See MCR 6.412(D)(2).
During voir dire, McIntyre's defense counsel exercised 12 peremptory challenges. Thereafter, the trial court called a prospective juror. The juror provided some background information and stated that she believed that she could keep an open mind. When the trial court asked her if she had doubts, she stated that she guessed that she had "a bias perhaps" concerning "repeat offenders." She explained that we had a "justice system that is built to repeat offenders." The trial court explored further whether she could fairly try the case and the juror indicated that she would consider all the evidence and agreed that McIntyre was presumed innocent. Nevertheless, on further examination by defense counsel, the juror expressed that her bias made her feel that McIntyre was not "presumed innocent" and that he "may have done it again." On the basis of her testimony, defense counsel challenged the juror for cause.
The trial court then inquired if the juror understood that McIntyre was presumed innocent, and she agreed that she understood. She also agreed that the presumption continued throughout trial, as it already instructed. The juror replied "No" when the trial court asked whether she "wouldn't assume that he [was] guilty just because he had a prior conviction." Finally, she agreed that she would keep an open mind and not make a decision until all the evidence was in. The trial court determined that the juror should not be excused.
The juror's testimony suggested that she might not be fully impartial, but the trial court satisfied itself that her candid admission of bias did not preclude her from following the court's instructions and rendering a decision on the basis of the evidence rather than bias. On this record, it cannot be said that the trial court clearly erred when it found that the juror could apply the presumption of innocence and render a fair decision. See Bryant, 491 Mich at 595.
Even if the trial court erred when it denied McIntyre's challenge for cause, McIntyre has not demonstrated that the trial court's decision prejudiced his trial. After the close of proofs, the trial court randomly excused two jurors by lot, and the juror at issue was one of the jurors selected. A defendant's rights are not violated if the final composition of the jury does not include a biased juror. See Rivera v Illinois, 556 US 148, 159; 129 S Ct 1446; 173 L Ed 2d 320 (2009). Indeed, courts have held that a trial court may cure the prejudice caused by the inclusion of a biased juror on the jury by dismissing the biased juror and replacing him or her with an alternate juror before jury deliberations. See United States v Thompson, 744 F2d 1065, 1068 (CA 4, 1984); see also Linden v Dickson, 287 F2d 55, 61 (CA 9, 1961). The mere fact that an alternate juror may have been biased causes no prejudice when—as was the case here—the jurors were instructed not to discuss the case before deliberations, and the alternate juror did not participate in deliberations. See United States v Fletcher, 634 F3d 395, 409 (CA 7, 2011). The juror at issue did not participate in deliberations, and McIntyre has not identified any evidence that the juror might have influenced the other jurors in any way. Consequently, there was no error in the jury's composition that warrants relief. Id.
Decisions by lower federal courts are not binding on this Court, but they may be persuasive. See People v Patton, 325 Mich App 425, 444 n 3; 925 NW2d 901 (2018). --------
F. IN-COURT IDENTIFICATION
1. STANDARD OF REVIEW
McIntyre also argues that the trial court erred when it denied his motion to preclude O'Connor from identifying him at trial because O'Connor's earlier identification at the preliminary examination was tainted. This Court reviews de novo questions of constitutional law, such as whether an identification was unduly suggestive. See Dimambro, 318 Mich App at 212. This Court reviews for clear error the factual findings underlying the trial court's application of constitutional law. Id.
2. ANALYSIS
Ordinarily, state evidentiary law governs whether evidence is admissible. See Perry v New Hampshire, 565 US 228, 237; 132 S Ct 716; 181 L Ed 2d 694 (2012). The normal means for testing whether evidence is unworthy of belief is through confrontation and cross-examination. Id. However, the Due Process Clause of the United States Constitution prohibits the introduction of evidence that is so extremely unfair that it violates fundamental conceptions of justice. Id. An eyewitness identification tainted by police arrangement may be so unfair that it would be improper to allow its admission. Id. at 238. Due-process concerns arise when police officers use an identification procedure that is both suggestive and unnecessary. Id. at 238-239.
Even if a court finds that police officers used a procedure that was both suggestive and unnecessary, the identification may still be admissible; there is no rule of automatic exclusion. Id. at 239. Instead, courts must examine the evidence on a case-by-case basis to determine whether the police conduct created a substantial likelihood of misidentification. Id. The linchpin of the analysis is whether the eyewitness's identification was reliable: when the corrupting effects of the suggestive procedures outweigh the indicators of reliable identification, the eyewitness's identification should be suppressed; but when they do not, the eyewitness's identification should be submitted to the jury. Id. Courts typically examine the following factors when determining the likelihood of misidentification: the witness's opportunity to view the perpetrator at the time of the crime, the witness's degree of attention, the accuracy of the witness's previous description, the witness's level of certainty, and the length of time between the identification and the crime. See People v Kurylczyk, 443 Mich 289, 306; 505 NW2d 528 (1993) (GRIFFIN, J.).
In this case, O'Connor first identified McIntyre as his assailant at the preliminary examination. This Court has held that an identification at a preliminary examination can be both suggestive and unnecessary. See People v Colon, 233 Mich App 295, 304-305; 591 NW2d 692 (1998). After completing his direct examination of O'Connor, the prosecutor informed the court that he had no reason to believe that O'Connor would be able to identify the man who attacked him, but nevertheless asked for permission to ask O'Connor if he recognized anyone. The court allowed the question, and O'Connor identified McIntyre out of the three defendants present: McIntyre, Winburn, and Simpson. O'Connor stated that he was able to identify McIntyre from his "chin line" and other facial characteristics. Although McIntyre appeared with the other codefendants, his codefendants did not share the characteristics that O'Connor had identified when describing his assailant. As such, the procedure was suggestive. See id. Defense counsel for McIntyre thereafter moved to preclude O'Connor from repeating his identification at trial.
At the hearing on the motion to suppress, the trial court noted that the identification was not the result of police activity, but instead was an in-court identification at the preliminary examination. The court agreed that there was some suggestiveness because the defendant was in jail attire, but the court recognized that there were two other male defendants in jail attire with McIntyre in the courtroom. The court stated that O'Connor had had an opportunity to observe the perpetrator during the robbery and that that included observation at very close proximity because O'Connor was in hand-to-hand combat with his assailant. The court indicated that O'Connor's description of the perpetrator did have some inaccuracies. The court stated that O'Connor identified his assailant as between 25 and 30 years of age, and McIntyre was 49 years of age. However, the court opined that McIntyre had a very "boyish type of face." The court stated that there were other discrepancies too: O'Connor varied his statements about the perpetrator's height; stated that he had dark eyes, when McIntyre has blue eyes; and described a tattoo or scar. The court indicated that the discrepancies could be explained in part by the mask. The court also considered the traumatic nature of the event and the fact that O'Connor had admitted to having a gram of marijuana. Considering the totality of the factors, the court found that there was clear and convincing evidence that O'Connor had a sufficiently independent basis for identifying McIntyre at the preliminary examination to purge any taint occasioned by the identification procedure accompanying the in-court identification. The court determined that the discrepancies between O'Connor's description of the perpetrator were matters of weight and credibility and not admissibility. Accordingly, it denied the motion.
In this case, the trial court did not err when it determined that the corrupting effects of the suggestive procedure did not outweigh the indicators that O'Connor's identification was reliable. See Perry, 565 US at 239. As the trial court correctly noted, O'Connor had a significant opportunity to view his assailant. When the man first entered O'Connor's bedroom, his mask was not over his face, and O'Connor had a brief opportunity to see him. Thereafter, the man ordered O'Connor to get off the bed and get down for several seconds. Although O'Connor's assailant wore a mask, the mask was a nylon stocking that had been pulled over his face and left some details visible. O'Connor then engaged his assailant in hand-to-hand combat that moved from the bedroom, down the hall, and eventually out the front door. In total, the record showed that O'Connor had a significant opportunity to see his attacker and could observe his unique facial features. See Kurylczyk, 443 Mich at 306.
O'Connor's description of his assailant did have some flaws, but it also showed several features that were consistent with McIntyre. O'Connor stated that his assailant was a slender, Caucasian man, which fit McIntyre's appearance. O'Connor opined that his attacker was a younger man of about 25 to 30 years of age, whereas McIntyre was 49 years of age at the time of the preliminary examination, but, as the trial court aptly noted, McIntyre does have a more youthful appearance. The fact that the man wore a nylon mask also could account for O'Connor's statement that his assailant had darker eyes even though McIntyre's eyes were blue. More importantly, the mask did not obstruct McIntyre's jawline and his jawline has a distinctive appearance. It was that feature which O'Connor latched onto when identifying McIntyre at the preliminary examination. O'Connor also did not express any doubts about his identification. Finally, although it had been more than a year since the crime occurred, it was not so long as to make O'Connor's identification doubtful.
Examining the circumstances as a whole, the suggestive effects attending the identification at the preliminary examination did not so outweigh the indicators of a reliable identification that there was a substantial likelihood that O'Connor misidentified McIntyre. See Perry, 565 US at 239; Kurylczyk, 443 Mich at 306. The trial court did not err when it denied McIntyre's motion to suppress.
G. CONSPIRATOR STATEMENTS
1. STANDARD OF REVIEW
McIntyre next argues that the trial court erred when it allowed Stamps to testify about statements made by others as evidence against him without establishing that he was a conspirator. He maintains that the statements were barred under the hearsay rule absent such proof. This Court reviews a trial court's evidentiary decisions for an abuse of discretion. See Roper, 286 Mich App at 90. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. at 84. This Court reviews de novo whether the trial court properly applied the rules of evidence. Id. at 91.
2. ANALYSIS
Hearsay is generally defined to be a statement, "other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c). Unless an exception applies, hearsay is inadmissible. See MRE 802. However, the rules of evidence provide that a "statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy" is not hearsay. MRE 801(d)(2)(E). The rules of evidence are consistent with the common law, which provides that when two or more persons conspire to commit a crime, everything said, done, or written by any one of them in furtherance of the conspiracy is treated as though said, done, or written by every one of them, and, for that reason, the evidence is relevant and admissible against each. See People v Lay, 193 Mich 476, 491; 160 NW 467 (1916).
At trial, Stamps testified about conversations between Winburn and others that she overheard, and she testified about Winburn's statements to her about the events at issue. She also testified about statements that McIntyre and Simpson made in her presence. The prosecutor argued that these statements were excluded from the definition of hearsay under MRE 801(d)(2)(E), and, for that reason, were not barred by MRE 802.
As the proponent of the testimony about the statements, the prosecutor had the burden to demonstrate by a preponderance of the evidence that the statements fell within the exclusion stated under MRE 801(d)(2)(E). See People v Martin, 271 Mich App 280, 316; 721 NW2d 815 (2006). As this Court explained in Martin, the proponent must establish three things in order to qualify a statement under MRE 801(d)(2)(E):
First, the proponent must establish by a preponderance of the evidence that a conspiracy existed through independent evidence. A conspiracy exists where two or more persons combine with the intent to accomplish an illegal objective. It is not necessary to offer direct proof of the conspiracy. Instead, it is sufficient if the circumstances, acts, and conduct of the parties establish an agreement in fact. Circumstantial evidence and inference may be used to establish the existence of the conspiracy. Second, the proponent must establish that the statement was made during the course of the conspiracy. The conspiracy continues until the common enterprise has been fully completed, abandoned, or terminated. Third, the proponent must establish that the statement furthered the conspiracy. The requirement that the statement further the conspiracy has been construed broadly. Although idle chatter will not satisfy this requirement, statements that prompt the listener, who need not be one of the conspirators, to respond in a way that promotes or facilitates the accomplishment of the illegal objective will suffice. [Martin, 271 Mich App 316-317 (quotation marks and citations omitted).]The trial court had the obligation to resolve any preliminary questions concerning the admissibility of the statements. See MRE 104(a). In considering the matter, the trial court had the authority to admit the testimony subject to the submission of sufficient evidence to support the fulfillment of a condition of fact. See MRE 104(b).
Stamps admitted that she had conspired with Winburn to break into O'Connor's home and steal marijuana. Testimony and evidence showed that McIntyre and Simpson met with Winburn and Stamps on two occasions after Winburn and Stamps entered into their conspiracy, which included meeting just hours before the breaking and entering into O'Connor's home. The evidence showed that Winburn collected items that could be used for a breaking and entering at the second meeting and distributed a nylon stocking to McIntyre that could be used as an improvised mask. The parties also coordinated a long drive to O'Connor's home that included two stops. During the stop at Meijer, McIntyre purchased additional items that could be used for a breaking and entering. Testimony established that Winburn and McIntyre left the cars after arriving and broke into O'Connor's home. This evidence was sufficient to establish by a preponderance of the evidence that there was a conspiracy and that McIntyre was a part of the conspiracy along with Winburn, Stamps, and Simpson. See Martin, 271 Mich App at 316-317. Additionally, the statements at issue each furthered the conspiracy—the statements either informed Stamps of the benefits to be gained from the breaking and entering, explained the respective roles of the parties in the conspiracy, or aided the coordination of the activities designed to further the conspiracy. See id. Consequently, the trial court did not abuse its discretion when it allowed Stamps to testify as to the statements made by the coconspirators. See Roper, 286 Mich App at 84.
H. CONSECUTIVE SENTENCING
On appeal, McIntyre argues that the trial court erred when it ordered him to serve his sentence for felony-firearm consecutive to his sentence for conspiracy because, in his view, there was insufficient evidence to establish that he carried or possessed a firearm during the commission of the conspiracy. Because a conspiracy continues until fully completed, abandoned, or terminated, see Martin, 271 Mich App at 317, and there was evidence that McIntyre carried or possessed a gun during the commission of the home invasion, there was sufficient evidence to support a verdict that McIntyre carried or possessed a gun during the commission of the conspiracy. See MCL 750.227b(2). Nevertheless, we agree that the trial court plainly erred when it determined that it had the authority to order McIntyre to serve his sentence for felony-firearm consecutive to each of the three alternate predicate felonies. See Carines, 460 Mich at 763; People v Coleman, 327 Mich App 430, 440-442; 937 NW2d 372 (2019). Accordingly, we vacate McIntyre's sentence to the extent that the trial court ordered him to serve his sentence for felony-firearm consecutive to each of the alternate predicate felonies, and remand this case for amendment of the judgment of sentence to include consecutive sentencing for only one of the predicate felonies.
I. SUGGESTIVE VOICE IDENTIFICATION
1. STANDARD OF REVIEW
Finally, McIntyre argues on his own behalf that the trial court erred when it allowed Stamps to identify his voice on the 911 recording. McIntyre did not object to Stamps's identification of his voice on the ground that Stamps identified him by process of elimination or on the ground that the process was unduly suggestive. Therefore, he did not preserve this claim of error. See Aldrich, 246 Mich App at 113. This Court reviews a trial court's evidentiary decisions for an abuse of discretion. See Roper, 286 Mich App at 90. A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id. at 84. This Court reviews de novo whether the trial court properly applied the rules of evidence. Id. at 91. However, because McIntyre did not preserve this issue for appellate review, this Court's review is limited to determining whether the trial court plainly erred and affected McIntyre's substantial rights. See Carines, 460 Mich at 763.
2. ANALYSIS
The fairness of an identification procedure is evaluated by examining the totality of the circumstances to determine whether the procedure was so impermissibly suggestive that there was a substantial likelihood of misidentification. See People v Murphy (On Remand), 282 Mich App 571, 584; 766 NW2d 303 (2009). Vocal identification evidence is competent if the witness's testimony is positive and unequivocal. Moreover, the witness must base his or her identification on a peculiarity of the voice or on sufficient previous knowledge of the person's voice. Id.
At trial, the prosecutor played the recording of the 911 call for Stamps and asked her whether she recognized one of the voices. She stated that she did not recognize the voice. The prosecutor asked Stamps if, on the basis of her interactions with Winburn, she thought that the voice was Winburn's voice. Stamps stated that it was not Winburn's voice. The prosecutor then asked it is was Simpson's voice. She stated that it was not his voice either. Finally, the prosecutor asked whether the voice was McIntyre's voice. She agreed that it was his voice. But she clarified that she reached that conclusion by inference—that is, she stated that she felt it was his voice because "it doesn't sound like the other two." She explained that she had spent enough time with Simpson to recognize his voice and so she could say that it was definitely not Simpson. On cross-examination, Stamps stated that she did not have a lot of interaction with McIntyre, and she agreed that she was identifying McIntyre's voice solely by process of elimination.
Stamps's testimony established that she had the ability to identify Winburn's voice and Simpson's voice. Although she initially stated that the voice on the 911 recording was McIntyre's voice, the prosecutor elicited testimony that she was not actually able to identify the voice as his voice, but instead came to that conclusion after she determined that it was not either of the other two accomplices. And McIntyre's defense counsel further verified that her initial identification was by process of elimination and not from experience with McIntyre.
McIntyre has not identified anything about the recording or the prosecution's use of the recording that showed that the circumstances were unduly suggestive. Indeed, the jury earlier heard the 911 recording during O'Connor's testimony, and O'Connor identified his voice on the recording. The only other voice—other than the operator and background noise from a television—was the voice of O'Connor's attacker. There was nothing about the circumstances of the playback with Stamps that established a substantial likelihood of misidentification. See Murphy, 282 Mich App at 584. Nevertheless, Stamps did identify the voice of O'Connor's assailant as McIntyre's voice, and Stamps admitted that she could not identify his voice from experience. Instead, she identified it by process of elimination. Consequently, it was plain error to allow Stamps to identify the voice as that of McIntyre. See Carines, 460 Mich at 763.
A plain error will not warrant relief unless the error affected the outcome of the trial. Id. In this case, the jury heard that Stamps could not actually identify the voice as McIntyre's voice from experience and so it was well aware of the limitations on her identification. In his closing statement, the prosecutor did argue that Stamps identified the voice as McIntyre's voice, but he also told the jury that it had to decide for itself whether the voice was McIntyre's voice and reminded the jury that Stamps was able to state that the voice was not that of Simpson or Winburn. The jury also had recordings of jail calls with McIntyre's known voice and could compare those calls to the recording of the 911 call to determine whether the voice was McIntyre's voice. And McIntyre's known manner of speaking and cadence matched the manner of speaking and cadence of the voice captured on the 911 call. Finally, there was overwhelming circumstantial evidence that identified McIntyre as the man who struggled with O'Connor and fired the shots at issue. Given that the jury already knew that Stamps reached her conclusion by process of elimination, any prejudice occasioned by her identification was minimal. There was also other far stronger evidence that identified McIntyre as O'Connor's assailant. Consequently, any error in allowing Stamps to opine that the voice was McIntyre's voice did not affect the outcome of McIntyre's trial. See id.
IV. CONCLUSION
Simpson has not identified any errors that warrant relief. Accordingly, we affirm his convictions and sentences in Docket No. 348293. McIntyre has similarly not identified any errors that warrant a new trial. However, the trial court plainly erred when it ordered McIntyre to serve his sentence for felony-firearm consecutive to each of three alternate predicate felonies. The trial court only had the authority to order him to serve that sentence consecutive to one of the three alternate predicate felonies. Consequently, in Docket No. 349130 we affirm McIntyre's convictions, but vacate his sentence to the extent that the trial court ordered him to serve his sentence of felony-firearm consecutive to each of the alternate predicate felonies and remand for amendment of the judgment of sentence to provide that his sentence for felony-firearm must be served consecutive to one of his predicate felonies.
Affirmed in Docket No. 348293. Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion in Docket No. 349130. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Amy Ronayne Krause