People of Michigan v. Davonte Christopher Burkett

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

June 16, 2026

Plaintiff-Appellee, 9:03 AM

v No. 371886

Oakland Circuit Court

DAVONTE CHRISTOPHER BURKETT, LC No. 2022-281482-FH

Defendant-Appellant.

Before: YOUNG, P.J., and BORRELLO and TREBILCOCK, JJ.

PER CURIAM.

A jury convicted defendant, Davonte Burkett, of two firearm crimes he committed while

on parole. He raises several claims on appeal, including the effectiveness of his trial counsel, the

sufficiency of the evidence supporting his convictions, his constitutional right to a speedy trial,

prosecutorial misconduct, and the constitutionality of the felon-in-possession statute. We affirm.

I. PERTINENT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

After defendant absconded from parole, Oakland County’s Fugitive Apprehension Team

determined that he was at a Pontiac residence on November 19, 2018. Lashunda Fulbright, John

Fulbright, and Terin Edwards lived there. Officers obtained permission from Lashunda to enter

the residence and arrest defendant. Inside John’s bedroom, defendant was standing with the back

of his legs against John’s bed. Another individual, Jaquan Fletcher, was seated about 15 feet away

in the same room. Officers secured them. Oakland County Sheriff’s Deputy Charles Janczarek

then lifted the mattress off its box spring and discovered a handgun underneath. A forensic

technician subsequently swabbed the handgun for DNA processing.

Years then passed. In December 2020, a DNA profile excluded John from being “a

possible contributor.” Fifteen months after that, in March 2022, a lab analysis compared a sample

of defendant’s DNA obtained via search warrant to that found on the handgun and concluded there

was “very strong support” that defendant was a contributor—the comparison determined it was

approximately 6.27 sextillion times more likely defendant and three unknown individuals were the

contributors than “four unrelated, unknown individuals.”

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We also note here additional pertinent dates to defendant’s speedy trial concerns raised on

appeal. On May 19, 2022, defendant was charged with being a felon in possession of a firearm

(felon-in-possession), in violation of MCL 750.224f, and carrying a firearm during the commission

of a felony (felony-firearm), third offense, in violation of MCL 750.227b. The trial court arraigned

him on July 27, 2022. Less than two months later, on September 14, 2022, defendant moved to

suppress the handgun, arguing the officers’ warrantless search violated his Fourth Amendment

rights. The trial court denied that motion on September 27, 2022, finding defendant absconded

from parole, officers received permission to enter, and the officers located the handgun during a

valid search incident to arrest.

After multiple pretrial adjournments, defense counsel moved to withdraw from

representing defendant in April 2023. At the subsequent hearing, defendant raised speedy trial

concerns in opposing his counsel’s withdrawal and the prosecutor disclosed that defendant was

separately undergoing a competency evaluation in another matter. The trial court ultimately

granted the motion and appointed new counsel.

At a September 20, 2023 pretrial hearing, trial counsel advised that defendant was declared

incompetent to stand trial in the other pending case and requested adjournment to determine

competency in this matter. The trial court entered orders for defendant to undergo a forensic

competency examination and an evaluation relating to his criminal responsibility. In February

2024, defendant was declared competent in his other case, and in March 2024, he stipulated to

competency in this case. At defendant’s June 2024 trial, a jury convicted him of both felon-in-

possession and felony-firearm. The trial court sentenced him as a fourth-offense habitual offender,

MCL 769.13, to 3 to 40 years’ imprisonment for his felon-in-possession conviction, and 10 years’

imprisonment for his felony-firearm conviction, to be served consecutively.

Defendant later moved for a judgment of acquittal or a new trial on multiple grounds. The

trial court permitted one claim to proceed for additional factual development—that trial counsel

performed ineffectively by failing to impeach Deputy Janczarek with his prior perjury in an

unrelated case. See People v Williamson, unpublished per curiam opinion of the Court of Appeals,

issued September 5, 2019 (Docket No. 331075) (documenting an instance in which Deputy

Janczarek “knowingly and intentionally made a false statement in [a] search warrant”). At a

subsequent hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), the

prosecution explained Deputy Janczarek was not accused of committing perjury against defendant;

because of this Court’s ruling in Williamson, however, it made a policy decision to dismiss pending

cases that relied solely on his testimony (which included a separate case against defendant). Trial

counsel testified he did not seek to impeach Deputy Janczarek because multiple officers were

present when the handgun was located and because of the strength of the DNA evidence collected

against defendant. Rather, trial counsel explained his trial strategy to highlight the other DNA

evidence and individuals at the residence with access to John’s bedroom. The trial court ultimately

denied defendant’s motion. This appeal by right followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues his trial counsel provided constitutionally ineffective performance by

failing to (1) amend the motion to suppress filed by defendant’s first attorney to correct a faulty

legal argument; (2) introduce evidence of Deputy Janczarek’s previously perjured testimony; (3)

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prepare a complete defense; and (4) request an independent competency examination. We agree

in part but ultimately decline to grant relief on all accounts.

A. LEGAL OVERVIEW AND STANDARD OF REVIEW

The United States and Michigan Constitutions entitle a criminal defendant to assistance of

counsel. US Const, AM VI; Const 1963, art 1, § 20. Counsel must be effective to satisfy the

constitutional requirement. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed

2d 674 (1984). “Effective assistance of counsel is strongly presumed, and the defendant bears the

heavy burden of proving otherwise.” People v Haynes, 338 Mich App 392, 429; 980 NW2d 66

(2021) (quotation marks and citations omitted). “In order to obtain a new trial because of

ineffective assistance of counsel, a defendant must show that (1) counsel’s performance fell below

an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a

reasonable probability that [the] outcome would have been different.” People v Yeager, 511 Mich

478, 488; 999 NW2d 490 (2023) (quotation marks and citation omitted). “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and

citations omitted).

“The defendant has the burden of establishing the factual predicate of his ineffective

assistance claim.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). To show trial

counsel’s performance failed to meet an objective standard of reasonableness, “a defendant must

overcome the strong presumption that counsel’s performance was born from a sound trial

strategy.” Id. at 585 (quotation marks and citation omitted).

“This Court reviews for an abuse of discretion a trial court’s decision on a motion for a

new trial.” People v Hughes, ___ Mich App ___, ___; ___ NW3d ___ (2025) (Docket

No. 367172); slip op at 2. “A trial court abuses its discretion when its decision falls outside the

range of principled outcomes.” Id. A claim of ineffective assistance of counsel “presents a mixed

question of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676

(2011). “The trial court must first find the facts and then decide whether those facts constitute a

violation of the defendant’s constitutional right to effective assistance of counsel.” People v

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s findings of fact, if any,

are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from

an ineffective assistance of counsel claim de novo.” People v Petri, 279 Mich App 407, 410; 760

NW2d 882 (2008). “Clear error exists if the reviewing court is left with a definite and firm

conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289. While the trial court

held a Ginther hearing, it was limited in scope to defendant’s claim relating to cross-examining

Deputy Janczarek. Because the evidentiary hearing did not address defendant’s other ineffective-

assistance claims, this Court’s review of those claims is limited to mistakes apparent on the record.

See People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020).

B. AMENDMENT OF MOTION TO SUPPRESS

Defendant first argues trial counsel was ineffective for failing to amend the motion to

suppress, filed by previous counsel, to present a different legal argument arising under the Fourth

Amendment.

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“The Fourth Amendment of the United States Constitution and its counterpart in the

Michigan Constitution guarantee the right of persons to be secure against unreasonable searches

and seizures.” People v Rodriguez, 327 Mich App 573, 583; 935 NW2d 51 (2019) (quotation

marks and citation omitted). See US Const, Am IV; Const 1963, art 1, § 11. “In general, searches

conducted without both a warrant and probable cause to believe evidence of wrongdoing might be

located at the place searched are unreasonable per se.” People v Mahdi, 317 Mich App 446, 458;

894 NW2d 732 (2016) (quotation marks and citation omitted). “And, generally, when evidence

has been seized in violation of the constitutional prohibition against unreasonable searches and

seizures, it must be excluded from trial.” Id. (quotation marks and citation omitted).

To demonstrate ineffective assistance concerning a Fourth Amendment violation, a

“defendant must [] prove that his Fourth Amendment claim is meritorious and that there is a

reasonable probability that the verdict would have been different absent the excludable evidence

in order to demonstrate actual prejudice.” Hughes, ___ Mich App at ___; slip op at 3 (citation

omitted; alteration in original). We conclude defendant cannot demonstrate ineffective assistance

because his Fourth Amendment claim as presented here is not meritorious.

The right to be free from unreasonable searches and seizures is personal and cannot be

invoked by a third party. People v Brown, 279 Mich App 116, 130; 755 NW2d 664 (2008). “For

an individual to assert standing to challenge a search, the individual must have had a legitimate

expectation of privacy in the place or location searched, which expectation society recognizes as

reasonable.” Id. “A court determines the issue of standing by examining the totality of the

circumstances, and a defendant bears the burden of establishing that he has standing.” Mahdi, 317

Mich App at 459. In so doing, we look at multiple factors, like “ownership, possession and/or

control of the area searched or item seized; historical use of the property or item; ability to regulate

access; the totality of the circumstances surrounding the search; the existence or nonexistence of

a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy

considering the specific facts of the case.” Id. (quotation marks and citation omitted).

Defendant cannot establish standing to challenge the search of the Pontiac residence

because he was, at most, a guest at the residence where at least John, Lashunda, and Edwards

resided. John identified the bedroom as his and explained he slept in the bed where the handgun

was recovered. Nothing in the record demonstrates defendant exercised any control over the area

or had the ability to regulate access to the bedroom. Detective Brian Wilson and Deputy Janczarek

testified defendant did not make any movements when officers entered the bedroom, and no

evidence shows defendant objected to the officers’ actions or otherwise indicated he had a

subjective expectation of privacy on which the officers were intruding. Moreover, defendant has

not provided any evidence establishing how long he was at the residence before the search, or how

long he intended to stay.

In resisting this conclusion, defendant notes the Fourth Amendment “protects people, not

places.” That much is true. See Katz v United States, 389 US 347, 351; 88 S Ct 507; 19 L Ed 2d

576 (1967). But that broad proposition does not demonstrate an entitlement to relief. “[A]n

overnight guest in a home may claim the protection of the Fourth Amendment, but one who is

merely present with the consent of the householder may not.” Minnesota v Carter, 525 US 83, 90;

119 S Ct 469; 142 L Ed 2d 373 (1998). See People v Parker, 230 Mich App 337, 340-341; 584

NW2d 336 (1998) (holding that a temporary visitor to a home does not have a reasonable

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expectation of privacy there). And as set forth, nothing in the record establishes that defendant

was anything more than a mere visitor. Indeed, defendant’s appellate brief concedes as much,

stating that Fletcher and Edwards “could have verified that [defendant] did not sleep in the room

where the firearm was found under the mattress; did not reside at the house; and was merely

visiting.”

At bottom, defendant does not present any evidence showing he was more than a visitor to

the residence, or that he had a reasonable expectation of privacy in the bedroom. The trial court’s

determination that defendant lacked standing was not clearly erroneous from the record.

Defendant, therefore, fails to establish his Fourth Amendment claim was meritorious, and trial

counsel was not ineffective for failing to relitigate a meritless argument. See Hughes, ___ Mich

App at ___; slip op at 3.

C. DEPUTY JANCZAREK’S PERJURY

Defendant next contends that his trial counsel rendered constitutionally ineffective

assistance by failing to introduce impeachment evidence against Deputy Janczarek. Prior to trial,

the prosecution provided trial counsel with a copy of People v Williamson, unpublished per curiam

opinion of the Court of Appeals, issued September 5, 2019 (Docket No. 331075). The trial court

summarized Williamson as follows:

In Williamson, Deputy Janczarek was found to have provided a false statement in

an affidavit in support of a search warrant. . .the opinion. . .references another []

case, People v Christoper Dukes.

In Dukes, Deputy Janczarek testified he placed a tracking device on the defendant’s

vehicle pursuant to a warrant, and the device provided inculpatory information.

The Court of Appeals remanded the case back to the trial court which held an

evidentiary hearing, ultimately finding that Janczarek’s statement that he placed the

GPS device pursuant to a warrant was inaccurate because no warrant had ever been

issued.

Accordingly, trial counsel was aware of two separate incidents involving false statements, false

testimony, or both from Deputy Janczarek. Trial counsel further knew that defendant himself had

a separate case “dismissed due to Deputy Janczarek’s untruthful statement.”

Yet, trial counsel did not use any of this evidence to impeach Deputy Janczerak. At the

Ginther hearing, trial counsel testified that, in light of the DNA evidence and Deputy Janczarek’s

role in recovering the firearm with other officers, he made a strategic choice not to introduce

evidence of Janczarek’s prior perjury, instead focusing on the theory that multiple individuals had

access to the bedroom where the firearm was recovered. This rationale is wanting under the

circumstances of this case.

Our Supreme Court has repeatedly held that defense counsel is not limited to advancing a

single, exclusive theory of defense where multiple, non-mutually exclusive lines of attack are

available. See, People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). Here, trial

counsel could—and should—have pursued both the theory that others had access to the premises

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and impeachment of Deputy Janczarek’s credibility through evidence of his prior perjury.

Presenting both theories would have furnished the jury with independent, mutually reinforcing

grounds to question the prosecution’s constructive possession theory and to entertain reasonable

doubt as to defendant’s guilt. In complex criminal proceedings, the effectiveness of the defense

often depends on counsel’s ability to marshal overlapping and alternative strategies, especially

where the credibility of a central prosecution witness is at stake.

Furthermore, evidence of a witness’s prior perjury is classic impeachment evidence, going

directly to the heart of credibility. While case dependent, excluding such evidence may

substantially impair the jury’s capacity to accurately assess the witness’s veracity. The United

States Supreme Court has emphasized that the reliability of the factfinder’s evaluation of evidence

is fundamental to due process. See Napue v Illinois, 360 US 264, 269; 79 S Ct 1173; 3 L Ed2d

1217 (1959). This is perhaps particularly true with police officer testimony. As our Supreme

Court has recognized, officers, while typically not qualified as experts, may be seen as such,

especially where their “specialized training and experience” is presented the jury in advance of the

problematic testimony. People v Musser, 494 Mich 337, 362-363; 835 NW2d 319 (2013).

Here, the jury learned that Janczarek had 25 years of experience on the police force and on

the night in question was working collectively with other units, namely, the Michigan Department

of Corrections, to locate defendant. This testimony served two purposes: first, it increased the

credibility of Janczerak and second, it relayed to the jury that defendant did not abide by rules or

restrictions of parole. And, after that initial testimony, Janczarek supplied that the gun was found

beneath a mattress: “basically in the corner of the bed that [defendant] was standing in front of.”

Janczerak’s testimony placed defendant in a location where he was capable of actual possession,

and certainly constructive possession, of the handgun found beneath the mattress. Calling into

question Janczerak’s credibility was directly in keeping with trial counsel’s purported strategy—

to emphasize that someone else, one of the three unknown fingerprints found on the handgun, was

the possessor of the gun, not defendant. Trial counsel repeatedly stated that his failure to impeach

Janczerak was “strategy,” but the strategy “in fact must be sound, and counsel’s decisions as to it

objectively reasonable; a court cannot insulate the review of counsel’s performance by calling it

trial strategy.” Douglas, 496 Mich at 585 (quotation marks and citation omitted). The record

reflects that in this case, failing to impeach one of two police officer witnesses cannot be

considered sound or strategic.

And that brings us to prejudice. Because two officers testified, one without a documented

history of perjury, it is not possible for us to find a reasonable likelihood of a different outcome on

this record. Like Janczarek, Wilson testified as to defendant’s close proximity to the location of

the weapon. Wilson further testified as to his preservation of the evidence and safe placement of

the gun in an evidence box. We agree with appellate counsel that learning of Janczerak’s history

with dishonesty “could have been used to question Deputy Wilson’s, as the two were working

together” but that alone does not create a reasonable probability of a different outcome, particularly

given the DNA evidence.

D. PRESENTATION OF A DEFENSE

Third, defendant argues trial counsel was ineffective for failing to develop a complete

defense, like interviewing other witnesses or trying to determine to whom the other three DNA

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profiles belonged. But he provides no explanation as to what evidence trial counsel would have

obtained from these interviews and investigation, only speculating that these interviews could have

shed light on who placed the handgun under the mattress. He also suggests that because Fletcher

and Edwards both later died from gunshot wounds, this information should have been mentioned

at trial to suggest the two men were involved in drug trafficking. Setting aside that Edwards died

after defendant’s trial, defendant makes no effort to establish that any of this information could

have changed the outcome of his trial. Moreover, even if the jury believed the handgun belonged

to another individual at the residence, this would not preclude the jury from finding defendant

possessed the handgun. See People v Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011)

(explaining possession can be joint or exclusive). Defendant, therefore, fails to establish this

portion of his claim.

E. COMPETENCY

To refresh, before trial, the trial court ordered that defendant be evaluated by the Forensic

Center because of concerns regarding defendant’s competency. He was eventually declared

competent to stand trial, and defendant stipulated to his competency in this case. Defendant now

argues trial counsel was ineffective for failing to request a competency examination independent

of the one done in the other prosecution. This argument is without merit.

At the Ginther hearing, trial counsel denied having concerns regarding defendant’s

competency during trial, and agreed defendant was responsive and able to provide input regarding

his defense. At no point did defendant have an outburst or engage in any other objectively

concerning conduct during trial. While defendant claims he was suffering from a mental-health

condition, he does not identify this condition or provide any substantiated argument reflecting

competency concerns at trial. Defendant fails to rebut the presumption of his competence, and as

such, fails to establish the factual predicate of this ineffective-assistance-of-counsel claim.

III. SUFFICIENCY OF THE EVIDENCE

We next turn to defendant’s challenge to the sufficiency of the evidence supporting his

felon-in-possession and felony-firearm convictions.

“[A] conviction that is not supported by sufficient evidence to prove guilt beyond a

reasonable doubt violates due process and cannot stand.” People v Prude, 513 Mich 377, 384; 15

NW3d 249 (2024). “[D]ue process requires the prosecution to prove every element beyond a

reasonable doubt.” People v Oros, 502 Mich 229, 240 n 3; 917 NW2d 559 (2018). For evidence

to be sufficient for a guilty verdict, a court must determine “whether a rational trier of fact could

have found the essential elements of the crime to have been proved beyond a reasonable doubt.”

People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011).

“This Court reviews de novo defendant’s challenge to the sufficiency of the evidence.” Id.

We review “the evidence in the light most favorable to the prosecution to determine whether a

rational trier of fact could have found the essential elements of the crime to have been proved

beyond a reasonable doubt.” Id. “The standard of review is deferential; a reviewing court is

required to draw all reasonable inferences and make credibility choices in support of the jury

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verdict.” People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015) (quotation marks and

citation omitted).

To prove felon-in-possession, the prosecution must establish (1) defendant possessed a

firearm, (2) when he was ineligible to do so under MCL 750.224f, as a result of a prior felony

conviction. See People v Bass, 317 Mich App 241, 267-268; 893 NW2d 140 (2016). Felony-

firearm requires that a defendant possess a firearm during the commission of, or the attempt to

commit, a felony. Id. at 268-269. Defendant stipulated he was ineligible to possess a firearm

because of a prior felony conviction, and on appeal, challenges only whether the prosecution

presented sufficient evidence to show he constructively possessed a firearm.

Possession “can be actual or constructive, joint or exclusive,” and a defendant “has

constructive possession if there is proximity to the article together with indicia of control.”

Johnson, 293 Mich App at 83 (quotation marks and citation omitted). “Put another way, a

defendant has constructive possession of a firearm if the location of the weapon is known and it is

reasonably accessible to the defendant.” Id. (quotation marks and citation omitted). Possession is

a question of fact for the jury, and “can be proved by circumstantial evidence and reasonable

inferences arising from the evidence.” People v Strickland, 293 Mich App 393, 400; 810 NW2d

660 (2011). However, “the circumstantial proof must facilitate reasonable inferences of causation,

not mere speculation.” People v Xun Wang, 505 Mich 239, 251; 952 NW2d 334 (2020) (quotation

marks and citation omitted).

Through the lens of these standards, we conclude a rational juror could find defendant

possessed the handgun found under the mattress in John’s bedroom. It is true that proximity alone

is not enough to establish possession. People v Bylsma, 493 Mich 17, 31-32; 825 NW2d 543

(2012). But the prosecution here offered powerful evidence linking defendant to the handgun—

DNA. Not only did that scientific evidence establish he was approximately 6.27 sextillion times

more likely to have possessed the firearm, it also excluded John—the individual who exercised

control over the bedroom—as a contributor. These facts distinguish the main (and non-binding

federal) case upon which defendant relies: United States v Beverly, 750 F2d 34 (CA 6, 1984),

which just involved a handgun found in a wastebasket near the defendant.

Accordingly, a jury could have reasonably believed the prosecution’s theory that defendant

knew the handgun was under the mattress because he placed it there when he realized law

enforcement officers were present. And to be sure, the presence of DNA could only prove that

defendant may have touched the handgun at some point. But “[a] jury is free to believe, or

disbelieve, in whole or in part, any of the evidence presented.” People v Perry, 460 Mich 55, 63;

594 NW2d 477 (1999). It is for “the trier of fact, not the appellate court, to determine what

inferences may be fairly drawn from the evidence[.]” People v Hardiman, 466 Mich 417, 428;

646 NW2d 158 (2002).

For these reasons, there was sufficient evidence demonstrating firearm possession

supporting defendant’s felon-in-possession and felony-firearm convictions.

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IV. SPEEDY TRIAL

We next consider defendant’s speedy trial claim. “Whether a defendant was denied his

constitutional right to a speedy trial is a mixed question of fact and constitutional law.” People v

Smith, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 362114); slip op at 2. That

is, we review the trial court’s factual findings for clear error and questions of law de novo. Id. at

___; slip op at 3.

The United States and Michigan Constitutions guarantee criminal defendants the right to a

speedy trial. See US Const, Am VI; Const 1963, art 1, § 20. “The time for judging whether the

right to a speedy trial has been violated runs from the date of the defendant’s arrest.” People v

Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). Unlike the similar 180-day rule set forth in

MCL 780.131,1 we measure constitutional claims not based on “a fixed number of days,” id., but

rather by balancing the factors set forth in Barker v Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L

Ed 2d 101 (1972), Williams, 475 Mich at 261-262. Those are: (1) length of delay, (2) reason for

delay, (3) defendant’s assertion of his right, and (4) prejudice to defendant. We address each in

turn.

Length of Delay. The period from arrest to trial is “to some extent a triggering mechanism.”

Barker, 407 US at 530. Courts presume prejudice after a delay of 18 months or more, and the

burden shifts to the prosecution to establish that the delay did not prejudice defendant. Williams,

475 Mich at 262. That is the case here. Defendant was charged on May 19, 2022, and trial began

25 months later on June 17, 2024.

Reason for Delay. This factor weighs strongly against defendant because as explained,

most of the delay arose from his counsel’s request to withdraw and adjudicating defendant’s

competency to stand trial.

Shortly more than two months following defendant’s arraignment, on July 27, 2022 (which

was delayed two weeks at the prosecution’s request to obtain a certified copy of defendant’s felony

convictions), defendant’s counsel requested a pretrial hearing in four to six weeks to obtain the

preliminary examination transcript. His counsel, however, subsequently requested to adjourn the

scheduled pretrial hearing to September 21, 2022, to conduct investigation and discovery. At that

hearing, counsel argued the motion to suppress and motion to quash.

Additional delay occurred after the trial court then adjourned the next pretrial hearing three

times at defense counsel’s request. And at the scheduled hearing time, the trial court was forced

to adjourn it again when defendant’s counsel called to inform the trial court that he was in another,

unrelated proceeding.

1

Defendant’s appellate brief also discusses a 180-day rule violation, which “is distinct from a

criminal defendant’s constitutional right to a speedy trial under our federal and state

Constitutions[.]” People v Witkoski, 341 Mich App 54, 60; 988 NW2d 790 (2022). But his

statement of questions presented did not raise a 180-day rule claim, rendering this issue

unreviewable. See People v Fonville, 291 Mich App 363, 383; 804 NW2d 878 (2011).

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A pretrial hearing occurred on January 11, 2023, and his counsel agreed to a trial date in

June. However, on April 18, 2023, defendant’s counsel moved to withdraw, and the previously

scheduled pretrial hearing the next day was adjourned to April 26, 2023, at his request. Adding to

the delay arising from the need to appoint new counsel for defendant, competency concerns also

arose and the next pretrial was scheduled for September 6, 2023. This date was then adjourned to

September 20, 2023, because the trial court was unavailable. Ultimately, the trial court was

informed of defendant’s incompetency declaration in his other case and adjourned the hearing to

allow the parties to file pleadings regarding defendant’s competency.

At the October 4, 2023 pretrial hearing, defendant was referred for a competency

evaluation, and a hearing was set for January 10, 2024. That scheduled hearing was adjourned to

February 7, 2024 (due to continued competency issues), then further adjourned to February 21,

2024 (at trial counsel’s request). Because of conflicting competency reports in defendant’s cases,

the hearing was continued to March 27, 2024, when the parties stipulated to defendant’s

competency.

Though defendant concedes his competency issues delayed the possibility of trial from

April 2023 to March 2024, he asserts any other delay should not be held against him. But he fails

to explain why these delays would not be attributable to him, where every adjournment from his

arraignment to January 2023 was requested by his original counsel. See People v Cain, 238 Mich

App 95, 113; 605 NW2d 28 (1999). After defendant’s trial was scheduled for June 2023, counsel

requested to withdraw in April 2023, and at the subsequent hearing is when the first concerns

regarding defendant’s competency were raised. The next hearing did not occur until September

2023, and even if this delay is credited to counsel’s withdrawal (as opposed to defendant’s

competency), any delay caused by the withdrawal of defense counsel cannot be attributed to the

prosecution. See Williams, 475 Mich at 262-263. Accordingly, the reasons for the delays are not

helpful to defendant.

Assertion of His Right. This factor weighs in defendant’s favor. He raised speedy trial

concerns at the April 2023 hearing to address counsel’s withdrawal, at the next hearing in

September 2023, and again at an October 2023 hearing. Having asserted this right three times in

the trial court, this factor weighs in defendant’s favor.

Prejudice. “[A] deprivation of the right to a speedy trial does not per se prejudice the

accused’s ability to defend himself.” Barker, 407 US at 521. Rather, “[t]here are two types of

prejudice which a defendant may experience, that is, prejudice to his person and prejudice to the

defense.” Williams, 475 Mich at 264 (quotation marks and citation omitted). The prosecutor has

disproved defendant suffered from either prejudice.

Concerning incarceration, a defendant who is “incarcerated on an unrelated offense” during

the delay suffers from no trial-delay prejudice. People v Holtzer, 255 Mich App 478, 493; 660

NW2d 405 (2003). Here, defendant was incarcerated without bond on an unrelated case during

the entire delay. Consistent with Holtzer, the trial delay did not prejudice defendant as a result of

his custody because he was already incarcerated and would have been independent of the delay.

The only prejudice to defense raised is that two individuals connected to the residence—

Edwards (who resided there) and Fletcher (who was in the bedroom with defendant)—both

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subsequently died. “If witnesses die or disappear during a delay, the prejudice is obvious.” Smith,

___ Mich App at ___; slip op at 6 (quotation marks and citation omitted). But Edwards died in

October 2024, three months after defendant’s trial. And as for Fletcher, we see nothing in the

record concerning how his testimony would have aided the defense given defendant’s proximity

to the gun; his DNA evidence being on the gun; and the trial testimony establishing the bed

belonged not to Fletcher, but to John. For this reason, defendant’s argument that Fletcher “could

have verified that [defendant] did not sleep in the room where the firearm was found under the

mattress; did not reside at the house; and was merely visiting” does not persuasively establish

prejudice.

Conclusion. Balancing all relevant factors, defendant fails to establish his right to a speedy

trial was violated.

V. PROSECUTORIAL ERROR

Defendant next contends the prosecutor engaged in misconduct by arguing facts not in

evidence in closing. Specifically, that defendant held the gun found underneath the mattress and

hid it there once law enforcement officers showed up at the residence to arrest him. We do not

agree.

This Court reviews claims of prosecutorial error on a case-by-case basis, and “must

examine the entire record and evaluate a prosecutor’s remarks in context.” People v Dobek, 274

Mich App 58, 64; 732 NW2d 546 (2007). “A prosecutor may not make a factual statement to the

jury that is not supported by the evidence, but he or she is free to argue the evidence and all

reasonable inferences arising from it as they relate to his or her theory of the case.” Id. at 66

(citations omitted). Because defendant failed to “timely and specifically challenge the prosecutor’s

statements or conduct,” we review this unpreserved claim of prosecutorial error for plain error

affecting his substantial rights. People v Thurmond, 348 Mich App 715, 735-736; 20 NW3d 311

(2023).

No error, plain or otherwise, occurred. As discussed, considering defendant’s proximity

to the handgun’s location and that his DNA was found on the handgun, one could reasonably infer

defendant placed the handgun underneath the mattress, and as such, would know its location. And

even if the prosecutor’s statements were improper, the trial court instructed the jury that the

prosecutor’s arguments were not evidence. “Jurors are presumed to follow their instructions, and

instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662

NW2d 836 (2003). To warrant reversal in the context of prosecutorial error, a defendant must

show the curative instruction was inadequate to cure any defect and that harm occurred. See

People v Ackerman, 257 Mich App 434, 449-450; 669 NW2d 818 (2003). Defendant offers no

argument as to how the jury failed to follow the trial court’s instructions, why the instructions did

not cure any potential error, or how any of these statements prejudiced him or denied him a fair

trial. Accordingly, he is not entitled to reversal.

VI. CONSTITUTIONALITY OF MCL 750.224f

Defendant’s last claim of appeal merits little analysis. He contends that Michigan’s felon-

in-possession statute, MCL 750.224f, is facially unconstitutional following New York State Rifle

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& Pistol Ass’n v Bruen, 597 US 1, 17; 142 S Ct 2111; 213 L Ed 2d 387 (2022).2 But this Court

has already upheld the constitutionality of MCL 750.224f post-Bruen. In Hughes, this Court

rejected the exact argument defendant advances here, holding that the restrictions of

MCL 750.224f “are consistent with the Nation’s historical precedent of regulating firearm

possession by persons convicted of felonies” and thus are constitutional. ___ Mich App at ___;

slip op at 12-14. And we did so in August 2025, three months before defendant filed his appellate

brief and five months before the prosecutor filed its appellee brief. Because Hughes is binding

precedent, defendant’s constitutional challenge fails. See People v Bennett, 344 Mich App 12, 21;

999 NW2d 827 (2022).

VII. CONCLUSION

For these reasons, we affirm the trial court’s judgment.

/s/ Adrienne N. Young

/s/ Stephen L. Borrello

/s/ Christopher M. Trebilcock

2

Defendant’s appellate brief appears to additionally claim that the felony-firearm statute,

MCL 750.227b, is also unconstitutional. Like his 180-day rule claim, we cannot review it because

he did not list this in his statement of questions presented. See Fonville, 291 Mich App at 383.

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