People of Michigan v. Viktor Shaholli

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

June 21, 2016

Plaintiff-Appellee,

v No. 325399

Macomb Circuit Court

VIKTOR SHAHOLLI, LC No. LC No. 13-2806-FC

Defendant-Appellant.

Before: M. J. KELLY, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions for first-degree premeditated

murder, MCL 750.316(1)(a), and felony-firearm, MCL 750.227b, for which he was sentenced to

life without parole and two years’ imprisonment, respectively. Finding no errors warranting

reversal, we affirm.

I. BASIC FACTS

The facts of this case are not in dispute. On November 20, 2012, defendant shot and

killed his daughter-in-law’s brother, Dashamir Matjani (Dashamir). At trial, defense counsel

argued that there was no motive for defendant to kill Dashamir, whom he had helped immigrate

to the United States from Albania. Defense counsel argued that the apparent lack of motive was

proof of defendant’s mental illness. In contrast, the prosecution argued that defendant’s motive

in killing Dashamir was to punish his daughter-in-law, Emira Shaholli (Emira).

Defendant had two sons, Arjan Shaholli (Arjan) and Bledar Shaholli (Bledar). Arjan was

married to Emira. Defendant, Arjan’s family, and Bledar’s family all lived together in a large

house on Hoffman Street in St. Clair Shores. Defendant had a masonry company where Arjan

and Bledar worked, along with other extended family members, including Dashamir. As the

head of the family, defendant controlled each family member’s money. When the economy went

into crisis and the housing market crashed, the home on Hoffman went into foreclosure.

Defendant helped Arjan buy a house on Recreation Street and helped Bledar buy a house on

Masonic.

On the day of the murder, the family was days away from eviction from the Hoffman

home. Many members of the family were at the Recreation address, working on the home so

that Arjan, Emira and their two young sons could move in. Emira testified that defendant had

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been watching the boys and had left them at a family member’s house. Emira retrieved the boys

and brought them to the Recreation address. Defendant wanted to know why Emira had picked

up the children and expressed his opinion that the children should not be there. Emira relented

and returned to the Hoffman home with the boys. Defendant also went to the Hoffman home

where he grabbed a shotgun. He returned to the Recreation house where he shot Dashamir. No

one saw defendant shoot Dashamir and the gun found outside the home did not contain useable

fingerprints. Nevertheless, defense counsel did not deny that defendant shot and killed

Dashamir.

After finding out that Dashamir had been shot, but before finding out that he was dead,

Emira called defendant. She asked him what he had done. Defendant admitted that he had shot

Dashamir. Emira testified: “he said he did it so my family would never talk to me for the rest of

my life and hate me for the rest of my life.” She called police and told them that she knew who

had shot her brother. Defendant was prepared to turn himself into police. He called his cousin,

Basri Sulolli, and admitted to shooting “Ellie’s brother” because “he swore on us.”

Defendant’s mental health – or lack thereof – was the focus at trial. There was no dispute

that defendant had suffered from migraine headaches for many years. Defendant’s sons noticed

a change in defendant after their mother died in November 2010. Defendant lost enjoyment in

working. While everyone agreed that defendant seemed depressed, they did not necessarily

agree on the extent of defendant’s depression. Bledar testified that defendant would sit in a chair

and simply stare at the fireplace. Defendant also made comments to family members about how

his wife would come and visit him in the night. Bledar noticed that defendant would “talk

nonsense.” Defendant’s hygiene also went downhill. Arjan testified that defendant was

depressed but that he was able to carry on daily activities like eating, dressing and driving.

Emira acknowledged that defendant was sad, but he did not appear depressed to her because he

was engaged in his usual activities. Defendant had been taking care of the children for the weeks

before the murder and Emira had no concerns about defendant’s mental health; she described

him as a good grandfather to his grandchildren.

Dr. Gerald Shiener diagnosed defendant with severe depression, as well as vascular

dementia, which impacted mood, judgment, impulse control, and the ability to appreciate the

consequences of actions. Shiener opined that “the combination of dementia and depression

impaired Mr. Shaholli’s ability to appreciate the consequences of his actions, plan out complex

activities, and control impulses that he had.” Additionally, Shiener concluded that defendant’s

“impairments were not consistent with the ability to appreciate right from wrong . . .his

impairments were not consistent with the ability to refrain from acting in the way that he did.”

Shiener did not believe that defendant was feigning his mental illness. Shiener believed the

crime was without motive and “motiveless actions are more consistent with legal insanity and

mental illness than obvious motives.”

In contrast, Dr. Donna Rinnas, the director of evaluation services at the Center for

Forensic Psychiatry, saw no evidence that defendant suffered from depression or dementia.

Defendant’s test scores were so low that it appeared defendant gave the wrong answers on

purpose. It was Rinna’s opinion that defendant “did not meet the criteria to be considered legally

insane.” She was critical of Shiener’s failure to consider the police reports when determining

whether defendant was legally insane at the time of the shooting. Rinnas considered the police

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reports and noted that defendant’s behavior that day, including driving, retrieving a firearm,

returning to the Recreation home, and going to the police station where he admitted that he shot

someone displayed purposeful and goal-driven activities as opposed to some random and

confused act.

Like Rinnas, Dr. Eric Neal opined that defendant was malingering. Neal was a

psychiatrist and the unit leader of a long-term unit at the Center for Forensic Psychiatry. Neal

had the opportunity to observe defendant for three months while defendant was at the Center for

Forensic Psychiatry. Neal also periodically met with defendant individually. Neal, who was

Shiener’s former student, disagreed with Shiener’s findings. Neal noted that defendant’s CT

scan did not show any abnormalities of the brain and the MRI was inconclusive. Vascular

dementia was particularized and required certain findings to diagnose. Neal did not believe

defendant had vascular dementia, primarily because there was an absence of stroke.

The jury convicted defendant of first-degree premeditated murder and felony-firearm. He

was sentenced as outlined above.

II. COMPETENCY

Defendant argues that the trial court erred in finding that defendant was competent to

stand trial. We disagree.

“The determination of a defendant’s competence is within the trial court’s discretion.

People v Newton, 179 Mich App 484, 488; 446 NW2d 487 (1989). “An abuse of discretion

occurs only when the trial court’s decision is outside the range of reasonable and principled

outcomes.” People v Kammeraad, 307 Mich App 98, 140; 858 NW2d 490 (2014).

“The conviction of an individual when legally incompetent violates due process of law.”

In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000). “To protect this right to due

process, Michigan has enacted statutes and a court rule regarding the competency of criminal

defendants.” Kammeraad, 307 Mich App at 137. Pursuant to MCL 330.2020(1), a criminal

defendant is presumed competent to stand trial. The statute specifically provides:

A defendant to a criminal charge shall be presumed competent to stand trial. He

shall be determined incompetent to stand trial only if he is incapable because of

his mental condition of understanding the nature and object of the proceedings

against him or of assisting in his defense in a rational manner. The court shall

determine the capacity of a defendant to assist in his defense by his ability to

perform the tasks reasonably necessary for him to perform in the preparation of

his defense and during his trial.

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“It is within the power of the circuit court to determine the capacity of a defendant . . . That

decision, as with any judicial decision, must be based in fact.” People v Davis, 310 Mich App

276, 293; 871 NW2d 392 (2015).1

At the competency hearing, Ancuta Matei testified that she was a medical doctor and

board certified in adult and geriatric psychiatry. She was an assistant professor at Wayne State

University and also conducted daily psychiatric evaluations. Matei evaluated defendant on

March 28, 2014, interviewing him through an interpreter. Matei was “struck by [defendant’s]

inability to really give coherent logical information whether through interpreter or not. I was

able to make some eye contact at times, but he was not able to give me . . . logical, coherent

information about any of the events leading to him being in this particular situation and being

evaluated by me.” Defendant did not give inappropriate answers, but they were short and

“nonelaborate.” He had a “very sad affect, very perplexed affect when it came to confronting

him with the allegations. And vacant . . .not really present, very indifferent at times.”

Defendant was unable to perform simple cognitive screening tests.

Family members had informed Matei that defendant had lost his wife to pancreatic cancer

approximately three years before the evaluation. It was at that time that he began to display

unusual behavior. Defendant stopped taking care of himself and began relying on family

members for daily living. He lost interest in activities and his behavior became erratic. Matei

believed that defendant had depression in the context of bereavement. He complained more of

migraine headaches and chronic pain could aggravate depression. Matei testified that, if severe

enough, a major depressive order combined with a pain disorder and cognitive disorder could

affect competency. The fact that the crime was committed near the anniversary of his wife’s

death was significant in the context of major depressive disorder.

As part of the medical analysis, Matei reviewed an MRI report prepared by Dr. Aronov

from February 5, 2013.2 There was a very small hemorrhagic lesion, or bleeding on the brain, in

the right posterior temporal lobe. Matei believed such a finding was consistent with vascular

dementia and was a physical symptom of impairment. Absent other symptoms and her personal

observation of defendant, it would not necessarily be significant. But Matei’s clinical findings

from her interview, combined with the MRI suggested that defendant was impaired. Because of

his cognitive impairments, Matei concluded that defendant “was not really able to organize his

thoughts in a logical way. He was not really able to plan . . . So that tells me that he is not able

to make informed decisions at any point, even for simple decisions.” Defendant also had “a

highly suggestive vascular lesion of a cavernous angioma,” which can cause memory problems

and seizures, as well as “periventricular and deep cerebral white matter bilaterally,” which were

significant of ischemia (problems with blood flow); there was a “very high probability” that

defendant had suffered mini strokes based on the migraine headaches.

1

Defendant was initially found incompetent to stand trial by Judge Mark Fratercangeli on June

19, 2012. Defendant was later re-determined to be competent on June 21, 2013.

2

She did not actually review the MRI itself.

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Matei diagnosed defendant with significant impairment in functioning. He had a

cognitive disorder consistent with symptoms of vascular dementia and had severe major

depressive disorder. Matei explained that a cognitive impairment impacted memory, rational

thought, organizing, planning and sequencing. Matei explained that vascular dementia included

a disturbance in memory and executive function. An individual with the disease would have

difficulty remembering things and performing daily activities. Matei did not believe that

defendant was “malingering,” meaning intentionally producing his symptoms “with a secondary

gain.” Ultimately, Matei opined that defendant was unable to understand the nature and the

object of the proceedings and was incapable of assisting defense counsel.

Clinical neuropsychologist Firoza Van Horn visited defendant at the Macomb County Jail

on October 11, 2013 and April 8, 2014 for a total of three hours. Defendant was “distant,”

“detached,” “in his own world,” and could not give Van Horn his background history or a

version of what happened on the day of the murder. Van Horn did not even bother to administer

tests. Defendant was delusional; he talked about his wife and how she visited him in jail. Van

Horn did not believe that defendant was malingering. Like Matei, Van Horn believed that the

abnormalities shown on the MRI confirmed her impressions that defendant may suffer from

vascular dementia. Defendant had severe depression with a brain impairment. Van Horn did not

believe that defendant had an understanding of the nature and object of the proceedings against

him and was incapable of assisting counsel in his defense.

Dr. Gerald Shiener also testified for defendant. Shiener was Chief of Psychiatry at Sinai

Grace Hospital and taught at Wayne State’s Medical School and some law schools. Shiener

interviewed defendant three times with the help of translators – in March 2012, April 2013, and

March 2014. Shiener diagnosed defendant with “acute psychiatric illnesses, cognitive disorder

vascular-type dementia,” as well as major depression. Shiener found no evidence of malingering

in defendant. Given defendant’s statements that he saw his dead wife at night, Shiener believed

defendant was “out of touch with reality.” Shiener reviewed Aronov’s report and also looked at

the MRI himself. He believed that defendant’s brain was small for a man his age, which was

significant because it coincided with problems in memory, concentration, attention and behavior.

Defendant also had some “vascular issue.” There were objective indications on defendant’s x-

ray that coincided with Shiener’s clinical observations. Shiener believed defendant was unable

to understand the nature or object of the proceedings against him and was unable to assist in his

defense.

Ronald Jamieson testified that he was a deputy at the Macomb County Jail and had the

opportunity to observe defendant since August 2013. Jamieson considered defendant to be a

“role model” inmate. Jamieson saw defendant communicate with other inmates. Defendant did

not appear confused or unable to handle daily activities. Jamieson also observed defendant

playing chess and checkers.

Adriatik Jeminaj testified that he was a corrections deputy at the Macomb County Jail

and also spoke Albanian. Defendant was a model inmate with the exception of a statement

defendant made on July 21, 2012 regarding wanting to twist the head of a mental health

professional who had him transferred to jail.

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Thomas Brewer testified that he was a forensic examiner at the Center for Forensic

Psychiatry. He had a master’s degree in social work and a Ph.D. in clinical psychology. Brewer

met with defendant on October 7, 2013. Defendant appeared unkempt and disheveled. At times

defendant’s comments were on point and at other times he was entirely off the mark. Normally,

Brewer would not expect to see such a variation (6/20/14 Competency Hearing, p 58.) Brewer

testified: “And then at one point when I, after I’d gotten to the point where I realized that he was

not going to cooperate, and I told him that I was going to have to tell Your Honor what my

opinion was about his cooperation. He just, he terminated the interview and said [‘]screw this[‘]

and he stopped the interview.” Brewer was unable to perform any tests but concluded that

defendant did not appear to be suffering from dementia. Based on his own observations as well

as reviewing other reports, Brewer believed defendant was “feigning” or “grossly exaggerating”

his symptoms.

Dr. Eric Neal testified that he was board certified in general and forensic psychiatry. He

was a staff psychiatrist at the Center for Forensic Psychiatry. Defendant was under Neal’s

supervision from March 14, 2013 to June 25, 2013 “[a]nd so in three and a half months that I had

him it was very important to observe his capacities and did his capacities match up with his

presentation.” While defendant’s scores on some tests were so low that it indicated he needed a

lockdown nursing unit, Neal noted that defendant “provided observational evidence that

suggested he was oriented to his circumstances, he had planning capacity, he had sequential

memory, he also had the ability to start and stop complex events and that he also could self

advocate on a regular basis for himself.” As an example, Neal pointed to the fact that defendant

came out of his room, obtained a remote control for the television, watched a soccer match, and

then returned the remote control. Defendant, whom Neal had no doubt suffered from migraine

headaches, advocated on his own behalf regarding the amount of medicine he was due.

Defendant also loved playing chess and although his family indicated that he had stopped

playing, defendant would advise his fellow inmates on their moves.

The CT scan was important to Neal because it was administered with and without

contrast and there were no abnormalities; the MRI did not include a contrast. For vascular

dementia, there would need to be physical findings, cognitive findings, and known evidence of

stroke. There were no physical findings of vascular dementia by the emergency room physician,

internal medicine physician, or neurologist. While Neal did not dispute the findings of the MRI,

he took issue with how those findings were applied relative to defendant’s presentation. The

MRI was also consistent with normal age-related changes and congenital anomalies. Neal

opined that defendant was malingering. After observing defendant for three months, Neal

questioned whether defendant even had depression.

Defendant called as rebuttal witnesses two of his fellow prisoners. Anthony Webster

testified that he was in a cell adjacent to defendant for eight months. Each inmate in maximum

security at the jail had two hours a day out of the cell. At no time did Webster see defendant

play checkers, chess, or cards. Defendant would walk back and forth as a form of exercise, but

kept mostly to himself. The only word Webster heard defendant say was “easy” when someone

was yelling in another cell. Defendant would ask Webster for soccer scores.

Stanley Duncan testified that he was in a cell adjacent to defendant. Defendant would

say “hi” but did not appear to understand much English. Duncan never heard or observed

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defendant playing cards, dice, checkers or chess. They had coffee together every morning.

Duncan, who did not know that defendant’s wife was dead, would tease defendant that he needed

to call his wife or she was going to “cut you off.” Defendant would ask Duncan about his

family. Sometimes defendant had trouble understanding English so Duncan would have to

rephrase things or use hand gestures. Defendant loved soccer. There were occasions when

defendant did not know what day it was or what was going on. Duncan once allowed defendant

to use a razor blade to shave a portion of his face.

At the close of testimony and arguments, the trial court concluded that defendant was

competent to stand trial. This finding was not an abuse of discretion. Contrary to defendant’s

contention, the trial court did not conclude that Shiener was “incapable” of reading the MRI and

CT images. Instead, the trial court acknowledged that there were various interpretations of the

images, but that the radiologist’s opinion was the most important: “And I think the most

poignant explanation is, and I think the most poignant statement was made by Dr. Neal that it is

the radiologist who needs to properly evaluate the findings made in the tests such as the MRIs

and that they are better suited because they are better studied.” Additionally, the trial court was

careful to state that it did not want to “diminish the testimony of the other doctors who had the

opportunity to review the records, but I think significantly and substantially we need to look at

which of the doctors had the opportunity to visit with the Defendant and observe the Defendant

at more of a length of time than those that did not, such as Dr. Shiener, Dr. Matei . . . I think Dr.

O’Neal’s [sic] opinion is based on sound conclusions. I, as I indicated I’m not in a position to

diminish the other doctors. I’m suggesting that the other doctors have formulated an opinion

without the advantages of Dr. Neal.” Thus, there is no support for defendant’s claim that the trial

court ignored his experts’ opinions.

Defendant also argues that the trial court placed too much emphasis on the Center for

Forensic Psychiatry’s staff observations of defendant while ignoring testimony from defendant’s

fellow inmates. In fact, the trial court found that the inmates’ testimony was further evidence

that defendant was competent: “harmful indeed were the testimony of the inmates who on a daily

basis are able to communicate with this Defendant.” Defendant chatted about sports with those

inmates and shared daily coffee with one. The trial court’s finding was rooted in the evidence.

Finally, to the extent defendant argues that the trial court discounted trial counsel’s claim

that his client could not properly communicate, we take notice that defense counsel, Tim

Barkovic, had an extensive history of bombastic behavior in Macomb County and has since

resigned from the practice of law as part of an agreement with the Attorney Discipline Board.

The veracity of the counsel’s statements was for the trial court to determine.

It is clear that the trial court’s findings were “based in fact,” Davis, 310 Mich App at 293,

and within the range of “reasonable and principled outcomes.” Kammeraad, 307 Mich App at

140. Defendant asks this Court to substitute its judgment for the trial court, which it will not do.

III. DOUBLE JEOPARDY

Defendant’s first trial ended in a mistrial following opening statements. Defendant

argues that the trial court erred when it concluded that the prosecutor’s behavior was

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unintentional. Defendant maintains that counsel was goaded into moving for a mistrial and that

defendant’s subsequent retrial violated his right against double jeopardy. We disagree.

“This Court reviews de novo questions of law, such as a double jeopardy challenge.”

People v Gibbs, 299 Mich App 473, 488; 830 NW2d 821 (2013). If such a challenge is based on

a trial court’s findings of fact in determining “whether a prosecutor intended to goad the

defendant into moving for a mistrial,” this Court reviews the findings for clear error. People v

Dawson, 431 Mich 234, 258; 427 NW2d 886 (1988). “A finding of fact is clearly erroneous if,

after a review of the entire record, an appellate court is left with a definite and firm conviction

that a mistake has been made.” People v Antwine, 293 Mich App 192, 194; 809 NW2d 439

(2011) (internal quotation marks omitted).

Both the United States and Michigan Constitutions protect a defendant “from being twice

placed in jeopardy for the same offense.” People v Nutt, 469 Mich 565, 574; 677 NW2d 1

(2004), citing US Const, Am V; Const 1963, art 1, § 15.

The double jeopardy provisions of the Michigan and federal constitutions

protect an accused from being twice put in jeopardy for the same offense. “Being

twice put in jeopardy” includes being subjected to a retrial after the initial

prosecution ends in a mistrial. An exception to the double jeopardy bar has been

made, and retrials allowed, where the prosecutorial or judicial errors requiring the

mistrial appear to have been innocent or were beyond the prosecutor’s control. A

general exception has also been made where the mistrial was granted on the

defendant’s motion or with his consent. Where prosecutorial conduct provoked

the defendant’s motion for mistrial, however, the Double Jeopardy Clause has

sometimes been held to bar retrial. [People v Dawson, 431 Mich 234, 235-236;

427 NW2d 886 (1988) (internal footnotes omitted).]

Dawson affirmatively held that “retrial is barred where the prosecutor intended to goad the

defendant into moving for a mistrial.” Id. at 236. The Dawson Court looked to Justice Powell’s

concurrence in Oregon v Kennedy, 456 US 667; 102 S Ct 2083; 72 L Ed 2d 416 (1982), where

Powell indicates that a prosecutor’s subjective intent “often may be unknowable” and, therefore,

in deciding a double jeopardy motion, a trial court “should rely primarily on facts and

circumstances of a particular case.” Dawson, 431 Mich 254. The Court held:

Retrials are an exception to the general double jeopardy bar. Where a

mistrial results from apparently innocent or even negligent prosecutorial error, or

from factors beyond his control, the public interest in allowing a retrial outweighs

the double jeopardy bar. The balance tilts, however, where the judge finds, on the

basis of the “objective facts and circumstances of the particular case,” that the

prosecutor intended to goad the defendant into moving for a mistrial. [Id. at 257

(internal footnote omitted).]

In Dawson, the prosecutor conceded that it intentionally goaded defense counsel to move for a

mistrial; therefore, the Court did not have to undertake such an analysis.

The following are excerpts from the prosecutor’s opening statement:

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Now, you heard in the beginning and some in voir dire that there was

reference to different proofs and evidence and motive and things like that. First

and foremost, motive is not an element. The People do not need to prove motive.

In fact, many times there is no motive for murder. Self-defense isn’t a motive for

murder. Self-defense is justification. There is no murder for murder. But, in this

case, ultimately it boils [down] to pride and power. It boils down to control. It

boils down to Viktor Shaholli, of Albanian nationality, and his family. And it

boils down, ultimately, to the death of an innocent bystander, Dashamir Matjani.

***

The defendant and his family at one point had a plan. They lived in St.

Clair Shores and they lived in a beautiful, huge home. And it was being built for

this one purpose, so that multiple families could create – I don’t want to say a

compound – but a community together. And the patriarch of that family was

Viktor.

***

The compound, the communal environment was falling apart. Pride and

power had its place . . .

***

Now, the big question you will hear is why? Why did he do it? Frankly,

the answer to that doesn’t matter. I did it is what matters. And she’ll tell you the

motive. She asked him why. He said so the rest of the family will hate you. And

you heard the term ‘crazy’ being thrown around. That seemed like a crazy

rationale. But that’s layperson crazy. That’s not you and I. There is no rational,

reasonable basis for doing something like that. But that is not legal insanity. Jihad

is crazy to me. But that’s not legal insanity.

Defense counsel moved for a mistrial, arguing that the prosecutor had inserted ethnic

generalizations into the trial. Defense counsel was also concerned with the fact that the

prosecutor had asked one juror if she had an opinion about Albanians and the juror responded

that they were vindictive troublemakers who were prone to violence. Defense counsel

complained that the prosecutor had intimated that defendant’s Albanian heritage compelled

defendant to kill the victim as some sort of honor killing or because of disrespect.

The trial court determined that the prosecutor was trying to ascertain bias during voir dire

when he interjected the fact that defendant was Albanian. But the trial court was persuaded that

other comments were inappropriate.

THE COURT: Yeah, I do not find the word ‘compound’ objectionable. I

do not find the word ‘patriarch’ objectionable. All that means is that he is the head

of the family, as you are the patriarch of your family, as your father is deceased.

And I don’t know the situation of the prosecutor. So I don’t find those two terms

objectionable. The only objectionable thing I heard at – during that opening

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statement was that “it all boils down to the Albanian nationality.” It was right at

the very beginning.

***

THE COURT: And you couple that with the voir dire question to the juror

who responded to your question are you going to be biased, and she says yes,

because she perceives Albanians to be whatever she said. And not good, whatever

she said wasn’t good. So –

MR. FOX [the prosecutor]: Right. But the voir dire question was –

THE COURT: You, by making the statement that Viktor’s Albanian put

him and his nationality on trial.

Ultimately, the trial court ruled as follows:

THE COURT: I feel, based on things that I heard, that we’re putting the

ethnicity of the Albanians on trial. They live in compound, which is a rude, crude

word, although it’s not – it can be interpreted that way, but you could have used

they lived together as an extended family. When you start putting all the words

together, you’re creating an environment, which I agree with Mr. Barkovic, that’s

hostile, that’s associated with the Albanian culture . . .

MR. FOX: And, Judge, as you just indicated when you first started to

address this, the word ‘compound’ was used twice in that half hour or so. Every

other time, multiple times, I said a communal environment.

THE COURT: But every time we hear ‘compound’ on the news, it’s never

good, ever is it good to hear ‘compound’ on the news and it’s associated with

good stuff. Never.

MR. FOX: Judge, I apologize for how it is used on the news –

THE COURT: I am going to grant the mistrial, but I’m not going to find

that it was deliberately done. I don’t believe that this prosecutor had any

deliberate intention, which means we are going to re-pick a jury. And I am ready

to do that this afternoon.

The objective facts and circumstances in this case support the trial court’s finding that the

prosecutor’s conduct was unintentional and not meant to goad defendant into moving for a

mistrial. It is evident that it was not the prosecutor’s intention to poison the jury against

defendant, although he did use some unfortunate language. Additionally, the prosecutor strongly

opposed defendant’s motion for mistrial. We are not left with the definite and firm conviction

that a mistake was made.

IV. PROSECUTORIAL ERROR/MISCONDUCT

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Defendant claims that he was deprived of a fair trial due to the prosecutor’s conduct. We

disagree.

“Given that a prosecutor’s role and responsibility is to seek justice and not merely

convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and

impartial trial. A defendant’s opportunity for a fair trial can be jeopardized when the prosecutor

interjects issues broader than the defendant’s guilt or innocence.” People v Dobek, 274 Mich

App 58, 63-64; 732 NW2d 546 (2007) (internal citations omitted). However, a prosecutor’s

remarks must be considered in light of the facts of the case and any of defendant’s argument.

Rodriguez, 251 Mich App at 31. As a result, “[i]ssues of prosecutorial misconduct are reviewed

on a case-by-case basis by examining the record and evaluating the remarks in context.” People

v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010) (internal quotation marks omitted).

1. IMPROPER DISCUSSION OF DEFENDANT’S COMPETENCY

Defendant argues that the prosecutor interjected the issue of defendant’s competency into

trial, conflating the concept of competency with the concept of legal insanity and making no

attempt to differentiate between the terms. “A prosecutor’s clear misstatement of the law that

remains uncorrected may deprive a defendant of a fair trial. However, if the jury is correctly

instructed on the law, an erroneous legal argument made by the prosecutor can potentially be

cured.” People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002) (internal citations

omitted). The prosecutor did not conflate the concepts of insanity and competence. In fact, the

prosecutor indicated that these concepts, as well as the concept of mental illness, were different –

“there’s a difference, that he was mentally ill, that he was incompetent or that he was legally

insane.” In any event, the trial court thoroughly and accurately instructed the jury on the issue of

insanity and further admonished “[t]he lawyers’ statements and arguments are not evidence.

They are only meant to help you understand the evidence and each side’s legal theories.” Thus,

to the extent that the prosecutor may have conflated the issues, such error was cured by the trial

court’s jury instructions.

Prior to selecting a jury at the second trial, a lengthy discussion took place regarding

whether defense counsel could present to the jury the fact that defendant had been “locked up”

for a year. The prosecutor objected to such a characterization. The trial court permitted defense

counsel to discuss defendant’s time at the Center for Forensic Psychiatry, with the caveat that the

prosecutor would be able to “fill in the gaps” with reference to subsequent orders finding

defendant competent. The trial court admonished the prosecutor that it could only tell the jury

that defendant was found competent; the prosecutor was prohibited from further explaining that

the trial court had previously determined that defendant was a malingerer. The prosecutor

provided the jury with an appropriate explanation for defendant’s hospitalization and did not

violate the trial court’s admonishment that evidence that its prior ruling finding defendant to be a

malingerer would not be allowed.

2. DENIGRATING DEFENDANT AND DEFENSE COUNSEL

During opening statement, the prosecutor stated:

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Now as a side note the Judge is going to talk to you about the credibility of

witnesses, motivation to testify. No one expects Dr. Shiener to do this out of the

goodness of his heart. But make no mistake there’s compensation involved.

***

But Dr. Shiener doesn’t rely on just the MRI and he doesn’t rely on these

headaches. His biggest reliance is this, Defendant, tell me about yourself. I don’t

know. What did you do? I don’t understand these things, I don’t know. Tell me

about your family? I don’t know. What happened? Where are you? I don’t know.

How am I supposed to know these things. Dr. Shiener takes Defendant at his

word. Because he said I don’t know so many times, my gosh, he must be mentally

impaired.

***

It’s a farce, it’s a lie, it’s a fake. It is what everyone from the Forensic

Center says and calls malingering. Defendant is not legally insane. He’s not even

mentally ill.

***

But like I said when it all comes down to the end, when you’re sitting in

the back and say, oh, Dr. Shiener, well he’s older, more experienced. My gosh,

Defense might even say, and you might have heard this, he was a professor and he

taught Dr. Neal. Yeah, Dr. Neal I think had a couple hours of class (inaudible).

Dr. Neal is one of the most respected forensic psychiatrists around. There’s a

reason he’s the head of a division in the Forensic Center. Dr. Neal can teach the

old dog some new tricks. And the trick is, tell the truth and don’t tell tricks at all.

See Dr. Neal you can believe. I submit to you that he will be more credible. Dr.

Rinnas I submit to you will be consistent and more credible. Dr. Shiener will tell

the opposite. And you all might sit back there and (inaudible) at the time, oh my

gosh, but Dr. One said this, Dr. Two said that; Dr. Two said that, Dr. Three said

something else. What do you do? You know what you do, you remember

November 20th, 2011. Because on November 20th, 2011, that’s the Defendant

who killed Dashamir. That’s the man who grabbed a gun and executed his

daughter in law’s brother so the rest of the family would hate her. That’s the man

who was so aware of what he had done that he fled the scene, he dropped the gun,

he drove home, he called for help to take him to the police station. Not to take

him there, excuse me, he made it there all by himself. But when he got to there to

have an interpreter so he could tell the police what he had done. Why? Because

what he had done was wrong and he knew it.

There is no defense in this case. He is not legally insane.

There is nothing improper about the prosecutor’s arguments. “[A] prosecuting attorney

may not personally attack defense counsel,” People v McLaughlin, 258 Mich App 635, 646; 672

NW2d 860 (2003), and “may not suggest that defense counsel is intentionally attempting to

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mislead the jury.” People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). Likewise,

the prosecutor may not personally attack the defendant’s credibility with “intemperate and

prejudicial remarks” and may not suggest that a defendant or defense counsel is trying to

manipulate or mislead the jury. People v Light, 480 Mich 1198; 748 NW2d 518 (2008); People

v Bahoda, 448 Mich 261, 283; 531 NW2d 659 (1995); People v Watson, 245 Mich App 572,

592; 629 NW2d 411 (2001). Additionally, a prosecutor “cannot vouch for the credibility of his

witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.”

Bahoda, 448 Mich at 276. However, that does not foreclose the prosecutor from arguing that

defendant or his witnesses are not worthy of belief. People v Dobek, 274 Mich App 58, 67; 732

NW2d 546 (2007). The prosecution is free to argue that defense counsel “bought” expert

testimony because such an argument does not “denigrate defense counsel as much as it tend[s] to

denigrate the expert witness himself. Moreover, counsel is always free to argue from the

evidence presented at trial that an expert witness had a financial motive to testify.” Id.

3. INJECTING MATTERS EXTRANEOUS AND PREJUDICIAL TO DEFENDANT

Defendant argues that the prosecutor also injected issues broader than guilt when it

discussed mortgage fraud and the murder of a child. During opening statements, the prosecutor

stated:

We’re going to talk about a lot of things that proves the evidence, the elements,

and you’ll notice one thing we won’t necessarily discuss at length, and that’s the

motive. Because at the end of the day motive doesn’t matter. Why’d he do it?

There’s a lot of people that do a lot of things we’re never going to understand.

Two weeks ago it was in a newspaper that a man went out and executed a two

year old girl in Inkster. You remember that in the news. No one in the world could

say that was rational. So the issue of the motive, the question you can have, it’s

okay to have that question as long as you understand and you agree that we

satisfied the elements, and I assure you we will.

***

You see Arjan and Emira resided in this home for a time. But in 2011 and trust

me, there are financial issues you’re going to hear about. You’re going to hear at

one point that the home was being foreclosed with the plan of buying it from the

bank as you may have heard was, I don’t want to say common practice, but it

happened during the housing crisis. When the house was going to go into

foreclosure the plan was for the family to buy it back. You’re going to hear how

they invested in properties and did things like that.

***

What really was being pushed by dad by the Defendant was, when we move here

to Recreation, we improve the home, we sell the home, we make a profit and we

use that profit to help buy the house that we were losing in foreclosure, the big

home. It was all part of a plan to keep this big family unit together in that large

home in St. Clair Shores.

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While “[a] defendant’s opportunity for a fair trial can be jeopardized when the prosecutor

interjects issues broader than the defendant’s guilt or innocence,” Dobek, 274 Mich App at 63-

64, prosecutor’s comments were appropriate under the circumstances. As demonstrated by

taking the comments in full context, the prosecutor did not inject mortgage fraud into the case;

instead, the prosecutor was simply setting forth the background of the case to give the jury a

picture of what was happening at the time of the murder. Further, the child’s murder was used,

not to encourage the jury to convict defendant for an alleged revenge killing, but to indicate to

the jury that motive was sometimes an elusive concept. Neither the prosecutor’s reference to the

foreclosure of the Hoffman home nor the murder of a two-year-old was inappropriate when the

statements are viewed in context.

4. MISSTATEMENT OF LAW CONCERNING MOTIVE

In addition to stating that “motive doesn’t matter,” as noted above, the prosecutor also

stated” [w]e don’t need to prove motive.” Again, a prosecutor may not misstate the law, Grayer,

252 Mich App at 357, but there is nothing in the prosecutor’s comments that misstates the law.

Defendant is correct that “[a]lthough motive is not an essential element of the crime, evidence of

motive in a prosecution for murder is always relevant.” Unger, 278 Mich App at 223. However,

the prosecutor’s statement that motive “doesn’t matter” was completely accurate. The

prosecutor was simply telling the jury that it did not have to understand defendant’s motive in

order to convict him of first-degree premeditated murder. Additionally, as previously stated, the

trial court instructed the jury that “[t]he lawyers’ statements and arguments are not evidence.

They are only meant to help you understand the evidence and each side’s legal theories.” Thus,

to the extent the prosecutor misstated the law, the error was corrected in the trial court’s

instructions to the jury.

5. MOTION FOR MISTRIAL

Defendant argues that the trial court erred in denying defense counsel’s motion for a

mistrial. We disagree.

We review for an abuse of discretion a trial court’s decision regarding a motion

for a mistrial. This Court will find an abuse of discretion if the trial court chose an

outcome that is outside the range of principled outcomes. A trial court should

grant a mistrial only for an irregularity that is prejudicial to the rights of the

defendant and impairs his ability to get a fair trial. [People v Schaw, 288 Mich

App 231, 236; 791 NW2d 743 (2010) (internal quotation marks and citations

omitted).]

Having concluded that none of the above statements were erroneous, there was no basis for a

mistrial and that trial court did not abuse its discretion in denying defendant’s motion.

6. CLOSING ARGUMENT

Many of the prosecutor’s arguments at closing were similar to those he made in his

opening statement. For the same reasons as previously stated, there is no basis for defendant’s

claim that the prosecutor’s closing argument deprived him of a fair trial. As previously

discussed, the prosecutor was within his right to argue that Shiener was not an independent

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witness and that the prosecutor’s witnesses were worthy of belief. The prosecutor was also at

liberty to attack defendant’s insanity defense.

V. ACCOMMODATIONS UNDER THE ADA

Defendant next argues that defendant’s mental disability qualified him for

accommodations under the Americans with Disabilities Act (ADA), 42 USC 1201 et seq, and

that the trial court erred in failing to appoint defendant lawyer-guardian ad litem (L-GAL). We

disagree.

Defendant claims that he was denied a fair trial. Such a constitutional question is

reviewed de novo on appeal. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

Defendant’s argument that the trial court should have appointed an L-GAL fails because

(1) defense counsel failed to show that defendant was, in fact, disabled; and, (2) even if

defendant was disabled, the law did not compel that an L-GAL be appointed, especially where

defendant had competent legal counsel and had been appointed a guardian in the probate court.

Under the ADA, “no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USC

12132. “The term ‘qualified individual with a disability’ means an individual with a disability

who, with or without reasonable modifications to rules, policies, or

practices, . . .communication, . . . meets the essential eligibility requirements for the receipt of

services or the participation in programs or activities provided by a public entity.” 42 USC

12131. As the trial court repeatedly found, defendant was competent to stand trial and was

malingering. While defendant claims that the inquiry of whether defendant was competent to

stand trial is different from an inquiry as to whether defendant had a mental disability, the fact

remains that defendant used the same symptoms to cover competence, mental illness and

insanity. Not having a disability, defendant was not entitled to accommodations under the ADA.

Additionally, as defendant concedes, there is no case law to support his position that a

defendant, who already has competent counsel and a guardian from a prior probate matter, must

also have an L-GAL. In People v Whyte, 165 Mich App 409, 414; 418 NW2d 484 (1988), the

Court noted: “Appellate counsel also argues that because he is unable to communicate with his

client, due to his client’s incompetency, a guardian ad litem should be appointed for defendant.

We decline to engraft such a device on a criminal proceeding.” Citing Whyte, this Court has also

rejected a similar argument in an unpublished case:

On appeal, defendant argues that the trial court, knowing of his mental

disorders, denied him a fair trial when it failed to sua sponte petition the probate

court for appointment of a guardian to make informed decisions on his behalf.

Defendant also argues that he was denied the effective assistance of counsel when

defense counsel failed to seek the appointment of a guardian for such purpose. We

find neither argument sufficient to provide a basis to disturb defendant’s

conviction.

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Defendant is correct that the Estates and Protected Individuals Code

(EPIC), MCL 700.1101 et seq., allows a person interested in the welfare of an

incapacitated individual to petition the probate court for appointment of a

guardian for the incapacitated individual. See MCL 700.5303(1). However,

defendant concedes that there is no authority from which it can be concluded that

the guardianship provisions of the EPIC were intended to be, or should otherwise

be construed as, applicable to criminal proceedings. Moreover, defendant has

failed to provide any argument or authority to persuade us that a criminal

defendant who suffers from a mental or personality disorder but has been found

competent to stand trial is unable to make intelligent and informed decisions on

his own behalf. In the absence of any such argument or authority, we are not

inclined to extend the provisions of the EPIC to criminal proceedings, or to

otherwise hold that a defendant found competent to stand trial is entitled to the

appointment of a guardian. See People v. Whyte, 165 Mich App 409, 414; 418

NW2d 484 (1988) (declining “to engraft such a device on a criminal

proceeding”). Thus, we reject defendant’s argument that he was deprived of a fair

trial as a result of the trial court’s failure to sua sponte seek appointment of a

guardian. [People v Lulow, unpublished opinion per curiam of the Michigan

Court of Appeals, issued October 24, 2006 (Docket No. 246110) slip op, pp 1-2

(2006) lv den 477 Mich 1112 (2007).]

Defendant was not entitled to an L-GAL and was, therefore, not deprived of a fair trial.

VI. RIGHT TO PRESENT A DEFENSE/ADMISSION OF EVIDENCE

Defendant argues that the trial court essentially deprived him of presenting a defense

when it denied defendant’s request to have two orders from the Macomb County Probate Court

admitted into evidence. Defendant maintains that the orders, which appointed defendant a

guardian and conservator, were relevant to his mental health history.

“This Court reviews preserved evidentiary issues for an abuse of discretion. A trial court

abuses its discretion when it chooses an outcome that is outside the range of reasonable and

principled outcomes.” People v Orr, 275 Mich App 587, 588-89; 739 NW2d 385 (2007)

(internal footnote omitted). “This Court . . .reviews de novo the constitutional question whether

a defendant was denied [his] constitutional right to present a defense.” People v Kurr, 253 Mich

App 317, 327; 654 NW2d 651, 656 (2002).

The trial court did not abuse its discretion when it refused to allow defense counsel to

introduce the orders. Defendant acknowledges People v Carpenter, 464 Mich 223; 627 NW2d

276 (2001), which has held:

The Legislature has enacted a comprehensive statutory scheme setting

forth the requirements for and the effects of asserting a defense based on either

mental illness or mental retardation. We conclude that, in so doing, the

Legislature has signified its intent not to allow evidence of a defendant's lack of

mental capacity short of legal insanity to avoid or reduce criminal responsibility

by negating specific intent. Rather, the insanity defense as established by the

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Legislature is the sole standard for determining criminal responsibility as it relates

to mental illness or retardation. Consequently, we affirm the decision of the Court

of Appeals on this alternative basis. [Id. at 241.]

But defendant argues that Carpenter “left open the possibility that if there is another valid reason

to admit this evidence it may be admissible.” (Defendant’s Brief on Appeal, p 43.) He cites

People v Burns, unpublished opinion per curiam of the Court of Appeals, issued September 18,

2012 (Docket No. 305037), which noted:

“Hence, a defendant is not entitled to offer evidence of a lack of mental capacity

for the purpose of avoiding or reducing criminal responsibility by negating the

intent element of an offense.” People v Yost, 278 Mich App 341, 354–355; 749

NW2d 753 (2008). “[T]his does not mean[, however,] that a defendant who is

legally sane can never present evidence that he or she is afflicted with a mental

disorder or otherwise has limited mental capabilities.” Id. at 355. If such evidence

is offered “for a relevant purpose other than to negate the specific intent element

of the charged crimes,” it may be admissible. [Burns, slip op, p 2.]

However, in Burns, this Court ultimately affirmed the trial court’s decision to preclude evidence

of the defendant’s unusual behavior prior to the crime.

Defendant argues that, in this case, the evidence was relevant to “rebut the claim that Mr.

Shaholli’s defense was a complete fabrication and to show that he did not suffer from a mental

illness as was determined by the [Macomb County Probate Court],” and was admissible under

MCL 600.2106, which provides:

A copy of any order, judgment or decree, of any court of record in this

state, duly authenticated by the certificate of the judge, clerk or register of such

court, under the seal thereof, shall be admissible in evidence in any court in this

state, and shall be prima facie evidence of the jurisdiction of said court over the

parties to such proceedings and of all facts recited therein, and of the regularity of

all proceedings prior to, and including the making of such order, judgment or

decree.

Defendant cites People v Dray, 469 Mich 979; 671 NW2d 873 (2003), wherein our Supreme

Court reversed this Court’s finding that the trial court did not err in denying a motion to

introduce a probate court order regarding the appointment of a guardian. The Supreme Court

determined that such an order was admissible pursuant to MCL 600.2106. However, defendant

fails to point out that in Dray it was the prosecution who sought to introduce evidence of the

victim’s lack of capacity to consent to an alleged kidnapping. People v Dray, unpublished

opinion per curiam of the Court of the Appeals, issued August 7, 2003 (Docket No. 242622).

Dray does not support defendant’s position and does not change the fact that evidence of

defendant’s mental capacity was inadmissible under Carpenter.

Because the trial court did not abuse its discretion in refusing to allow the evidence, it

cannot be said that its decision denied defendant the right to present a defense. “A criminal

defendant has a right to present a defense under our state and federal constitutions,” which

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necessarily includes evidence that “might influence the determination of guilt.” People v Anstey,

476 Mich 436, 460; 719 NW2d 579, 593 (2006). Defendant pursued the defense of legal

insanity and presented expert testimony that he suffered from mental illness – severe depression

and vascular dementia – such that he could not appreciate the consequences of his actions. The

probate orders were not necessary for defendant to pursue an insanity defense.

VII. MOTION FOR NEW TRIAL

Finally, defendant argues that although the trial court was presented with a substantial

motion for new trial, it cut off defense counsel’s arguments at the hearing and did not entertain

each claim of error. In essence, defendant claims that the trial court abused its discretion when it

denied the motion without exercising its discretion. We disagree.

“We review a denial of a motion for new trial for an abuse of discretion.” Unger, 278

Mich App at 232.

Defendant’s motion for new trial alleged the following errors:

1) The trial court abused its discretion in finding Mr. Shaholli competent to stand

trial while he was mentally ill to the extent that he did not understand the nature

and object of the charges against him, and was unable to communicate with or

assist counsel in the preparation of his defense;

2) The trial court’s finding that the prosecutorial misconduct resulting in a

mistrial was unintentional was clearly erroneous and the subsequent retrial,

resulted in a violation of Mr. Shaholli’s federal and state right against double

jeopardy . . .;

3) Mr. Shaholli’s convictions of first-degree premeditated murder and felony-

firearm were the product of prosecutorial misconduct where the prosecutor’s

opening statement, closing argument and actions denigrated the defendant and

defense, conflated and misstated legal concepts that confused and mislead [sic]

the jury and intentionally made improper, highly inflammatory and prejudicial

remarks to the jury while interjecting extraneous factors into the trial;

4) The court erred in refusing to grant Mr. Shaholli’s motion for accommodation

under the [ADA];

5) The trial court committed clear error in refusing to appoint a[n L-GAL] to

assist Mr. Shaholli in the criminal proceeds, forcing conflicted trial counsel to act

as advocate and guardian of his client, two mutually exclusive roles that adversely

affected his ability to properly represent Mr. Shaholli’s interests and provide

effective counsel, and contrary to Michigan Rules of Professional Conduct

(MRPC) 1.14;

6) The court erred where it refused to admit evidence of the finding of [the

probate court] orders finding that Mr. Shaholli was mentally ill and could not

conduct normal daily activities of financial matters, which were relevant to his

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defense, admissible and implicated his right to present a defense. [10/10/14

Motion for New Trial, Lower Court File Vol II.]

Although the trial court may have not separately addressed each issue at the hearing, it

had previously addressed all of the issues on numerous prior occasions. Because we have

concluded that none of these claims of error have merit, it cannot be said that defendant suffered

any prejudice as a result of the trial court’s abbreviated treatment of the motion.

Affirmed.

/s/ Michael J. Kelly

/s/ Mark J. Cavanagh

/s/ Kirsten Frank Kelly

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