People of Michigan v. Keith Irving Luesing

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

April 20, 2017

Plaintiff-Appellee,

v No. 330507

Otsego Circuit Court

KEITH IRVING LUESING, LC No. 15-004943-FC

Defendant-Appellant.

Before: BORRELLO, P.J., and WILDER and SWARTZLE, JJ.

PER CURIAM.

Defendant, Keith Irving Luesing, appeals as of right his jury trial convictions of one

count of second-degree murder, MCL 750.317, and two counts of assaulting, resisting, or

obstructing a police officer (resisting or obstructing), MCL 750.81d(1). As a fourth-offense

habitual offender, MCL 769.12, defendant was sentenced to 50 to 87½ years for his second-

degree murder conviction and 388 days (time served) for his resisting or obstructing convictions.

We affirm.

I. FACTUAL BACKGROUND

This case arises out of the murder of Troy Walsh (the victim) in his room at a motel (the

motel) in Gaylord, Michigan. At the time of his death, the victim had been residing in room 46

of the motel for an extended period. Defendant resided in room 42.

The evening before the victim was murdered, his brother Shawn Walsh (Shawn) visited

the victim at the motel. Because the motel staff was planning to paint room 46 the next day, the

victim had been informed that he was required to move to the adjoining room 45. Room 45 was,

however, occupied by an unidentified man and woman (the unidentified couple) that evening.

Accordingly, the brothers made plans for Shawn to come back the next day to help the victim

move.

According to the motel manager, on the date of the victim’s murder the unidentified

couple from room 45 checked out around 10:30 a.m. or 11:00 a.m., turning in their only key for

that room. Shawn testified that he arrived at the motel to help his brother move as planned

“[s]hortly after noon.” Before Shawn arrived, the victim and defendant had been in room 46

alone. The victim was drinking and was visibly intoxicated. Aggravated that, despite their

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plans, the victim “was drinking already before noon on a Sunday,” Shawn chided the victim and

then left.

The motel manager subsequently went to room 46 to give the victim the key to room 45.

After knocking several times on room 46’s door and calling out the victim’s name, the manager

received no response. The door was closed and locked. Thinking that the victim might have

moved out, the manager used a master key to enter room 46. It was dark—the drapes had been

drawn and no lights were illuminated—but the manager could see somebody “laying in the

corner.” The person on the floor was later identified as the victim. He had been badly beaten

and garroted to death with a lamp cord.

The manager called out the victim’s name and he heard defendant, from within the

bathroom, announce that he was there. After “a little time,” defendant emerged from the

bathroom. The manager asked defendant where the victim was, and defendant responded, “I

don’t know.” When the manager asked defendant who the person on the floor was, defendant

replied, “I don’t know either.” Defendant never approached or touched the person on the floor.

The manager summoned the police and paramedics to the scene.

The dispatch to the local police units indicated that they were responding to “a possible

suicide attempt,” but some of the additional information provided by the dispatcher made the

incident seem “suspicious.” Upon arriving at the scene, the first responding officer, Sergeant

Francis Claeys of the Gaylord Police Department, spent approximately 30 seconds performing “a

quick protective sweep” of the room, including the bathroom, where he noticed what appeared to

be blood that had been diluted by water on both the sink and a soap bottle. Claeys

“immediately” asked the manager and defendant whether they had had any contact with the

victim’s body, and both responded that they had not. Claeys also asked defendant whether he

knew the identity of the person on the floor, and defendant “said he didn’t know initially.”

Defendant “had some small lacerations on his hand” and “what appeared to be” blood on the

cuticles of several of his fingers.

Trooper Ronald Rabineau of the Michigan State Police (MSP) arrived at the motel

shortly after Sergeant Claeys. Defendant was asked to step out of the room and sit on a plastic

chair, and he complied.1 Rabineau began to question defendant “as a potential witness to what

may have transpired,” but Rabineau did not consider defendant to be under arrest at that time.

Defendant, who “appeared to be somewhat intoxicated,” told Rabineau that he and the victim

had been drinking, that the victim had been “real mad” about having to move rooms, that

defendant had gone into the bathroom for about 10 or 15 minutes, that the manager had been

entering room 46 when defendant exited the bathroom, and that they had subsequently

discovered the victim in the corner of the room. When Rabineau asked defendant whether he

had gone “anywhere near” the victim or “had touched him at all,” defendant “said that he had

not.”

1

According to defendant, he sat on the plastic chair because he “hated trying to stand with [his

cane,” no one was present around him when he sat down, and he was not told that he was under

arrest or required to stay.

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For roughly the first hour of the investigation, defendant was calm, cooperative, and, in

Trooper Rabineau’s judgment, not under arrest. After being asked not to use his cellphone,

however, defendant became combative and began to make comments indicating that he would

fight the officers. The officers ordered defendant to remain seated in the plastic chair. He

refused, “tried to stand up,” was “taken to the ground,” and was placed in handcuffs.

The police noticed “a lot of blood” on defendant’s hands, clothing, and boots.2

Suspicious, Sergeant Claeys began to question defendant more closely, making a video recording

of the interrogation. When Claeys and several other officers served defendant with a search

warrant entitling them to seize his clothing as evidence, defendant violently resisted. During the

ensuing fracas, defendant attempted to bite Claeys several times.

Eventually, Claeys transported defendant to the local police station and placed him in an

interview room, where defendant was given his Miranda3 warnings. Defendant indicated that he

did not wish to speak with the police, after which MSP Detective-Sergeant David Hart sat

“directly across” the interview room’s table from defendant and “just looked at him . . . .”

Defendant was “very angry,” screaming obscenities, and “trying to be intimidating.” Among

other things, defendant said (1) that he had been a member of the “Bandidos,” which was a

motorcycle club of which Hart was aware, (2) that he had “been in prison for 17 years,” (3) that

he had been “involved” in either the death or murder of a Texas Ranger, and (4) that he had

worked as an informant for the federal Bureau of Alcohol, Tobacco, and Firearms (the ATF).

Hart was under the impression that defendant’s statements in the interview room were being

video recorded, but no recording was actually made. According to defendant, Hart simply sat

across the table from defendant “with a scowl on his face,” which made defendant feel like he

was “under pressure.” Defendant did not remember Hart asking any questions.

Before trial, defendant filed a motion to suppress his statements to the police. Defendant

argued that he was in custody for Miranda purposes “within minutes, if not seconds, following

the police officers’ arrival” at the motel. Hence, defendant argued, any statements he made

before being advised of and validly waiving his Miranda rights should be suppressed. After

reviewing the matter,4 the trial court held that neither defendant’s initial statements to Claeys and

Rabineau nor his later statements to Hart in the interview room were subject to suppression. On

the other hand, the trial court held that it would suppress the video-recorded statements

defendant made when Claeys later questioned him about his involvement in the murder. The

trial court reasoned that, during Claeys’s recorded interrogation of defendant, a custodial

environment existed because a reasonable person would not have felt free to leave. The trial

2

A sample of the blood found on defendant’s pants indicated with “scientific certainty” that the

victim was the “major contributor” of DNA in that sample. Samples drawn from defendant’s

boots and shirt cuff also revealed the victim as the “major” DNA donor.

3

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

4

At the parties’ agreement, the trial court relied on the record made at defendant’s preliminary

examination.

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court also held, however, that the suppressed statements to Claeys were voluntary and, therefore,

could be used to impeach defendant if he testified at trial and offered inconsistent statements.

After defendant testified at trial that he did not believe he ever made a statement to the

police denying that he touched the victim’s body, the prosecution was permitted, over

defendant’s objection, to call Claeys as a rebuttal witness in order to impeach defendant with his

previously suppressed statements. In the portion of the recorded interrogation that was played

for the jury, there was the following exchange between Claeys and defendant:

Q. You told Trooper Rabineau that you -- you didn’t have any contact

with him; you didn’t touch him at all or move him or anything?

A. No, no, no, no, man.

Q. Okay.

A. Troy [the victim] was my friend, man.

At trial, defendant maintained his actual innocence. He testified that, shortly before the

victim was murdered, the unidentified couple and another unidentified man (the other man) had

forced their way into room 46, upset with the victim for his behavior towards the unidentified

woman earlier that day. According to defendant, he was ordered to go into the bathroom and

obeyed out of fear, remaining there until the motel manager arrived. Defendant could offer no

explanation why he did not inform the motel manager or the responding officers that the

unidentified couple and the other man might have been involved in the victim’s murder.

Defendant was convicted and sentenced as explained supra. This appeal followed.

II. STANDARDS OF REVIEW

Defendant’s several claims of error on appeal implicate varying standards of review.

Whether a defendant was subject to a custodial interrogation, and hence entitled to Miranda

warnings, “is a mixed question of fact and law, which must be answered independently by the

reviewing court after review de novo of the record.” People v Coomer, 245 Mich App 206, 219;

627 NW2d 612 (2001) (quotation marks and citation omitted). The trial court’s factual findings

regarding a motion to suppress are reviewed for clear error. People v Elliott, 494 Mich 292, 300;

833 NW2d 284 (2013). “A factual finding is clearly erroneous if it either lacks substantial

evidence to sustain it, or if the reviewing court is left with the definite and firm conviction that

the trial court made a mistake.” People v Mazur, 497 Mich 302, 308; 872 NW2d 201 (2015).

Whether a defendant was improperly impeached by evidence taken in violation of his

constitutional rights is a question of law reviewed de novo. People v Clary, 494 Mich 260, 264;

833 NW2d 308 (2013).

On the other hand, a trial court’s evidentiary decisions are reviewed for an abuse of

discretion, with any preliminary legal questions concerning admissibility reviewed de novo,

People v Mann, 288 Mich App 114, 117; 792 NW2d 53 (2010), including whether a statement

constitutes inadmissible hearsay, People v McDaniel, 469 Mich 409, 412; 670 NW2d 659

(2003). Similarly, “[a] trial court’s determination of whether a jury instruction applies to the

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facts of the case is reviewed for an abuse of discretion,” while any related questions of law are

reviewed de novo. People v McFall, 309 Mich App 377, 382; 873 NW2d 112 (2015). “The trial

court abuses its discretion when its decision falls outside the range of principled outcomes or

when it erroneously interprets or applies the law.” People v Lane, 308 Mich App 38, 51; 862

NW2d 446 (2014).

Unpreserved claims of error are reviewed for plain error affecting substantial rights, with

reversal “warranted only when plain error resulted in the conviction of an actually innocent

defendant or seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” People v Bennett, 290 Mich App 465, 475-476; 802 NW2d 627 (2010) (quotation

marks and citations omitted); see also People v Pipes, 475 Mich 267, 274; 715 NW2d 290

(2006). “To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an

error must have occurred, (2) the error must be plain, and (3) the error must have affected the

defendant’s substantial rights, which generally requires the defendant to show that the error

affected the outcome of the lower-court proceedings.” People v Buie (On Remand), 298 Mich

App 50, 56; 825 NW2d 361 (2012). “[R]eversal is only warranted if the defendant is actually

innocent or the error seriously undermined the fairness, integrity, or public reputation of the

trial.” Pipes, 475 Mich at 274.

“Where claims of ineffective assistance of counsel have not been preserved, our review is

limited to errors apparent on the record.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d

342 (2004). “Whether defense counsel performed ineffectively is a mixed question of law and

fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo

questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136

(2012).

III. ANALYSIS

A. SUPPRESSION

On appeal, defendant first argues that the trial court erred by failing to suppress

defendant’s initial statements to Trooper Rabineau and his subsequent statements to Detective-

Sergeant Hart. We disagree in both respects.

In Miranda, the United States Supreme Court held that the Fifth Amendment’s

prohibition against compelled self-incrimination requires that the accused be

given a series of warnings before being subjected to “custodial interrogation.”

The right to have counsel present during custodial interrogation is a corollary of

the right against compelled self-incrimination, because the presence of counsel at

custodial interrogation is one way in which to insure that statements made in the

government-established atmosphere are not the product of compulsion. If the

custodial interrogation is not preceded by an adequate warning, statements made

during the custodial interrogation may not be introduced into evidence at the

accused’s criminal trial. [Elliott, 494 Mich at 301 (quotation marks, citations, and

footnote omitted).]

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“[T]he fact that an individual has become the ‘focus’ of an investigation does not trigger the

Miranda requirement.” People v Hill, 429 Mich 382, 391; 415 NW2d 193 (1987). Instead, “[i]t

is well settled that Miranda warnings need be given only in situations involving a custodial

interrogation.” People v Zahn, 234 Mich App 438, 449; 594 NW2d 120 (1999). “By custodial

interrogation, we mean questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any significant way.” Hill,

429 Mich at 387, quoting Miranda, 384 US at 444. “To determine whether a defendant was in

custody at the time of the interrogation, we look at the totality of the circumstances, with the key

question being whether the accused reasonably could have believed that he was not free to

leave.” Zahn, 234 Mich App at 449. “The determination of custody depends on the objective

circumstances of the interrogation rather than the subjective views harbored by either the

interrogating officers or the person being questioned.” Id.

1. STATEMENTS TO RABINEAU

Based on the totality of the circumstances, we find no error in the trial court’s denial of

defendant’s motion to suppress his initial statements to Rabineau. First, it is noteworthy that

defendant’s initial statements to Rabineau were made at the motel where defendant had been

residing. “Courts are less willing to find custodial circumstances where interrogation occurs in

familiar or neutral surroundings. Thus, interrogation in a suspect’s home is usually viewed as

noncustodial.” People v Mayes, 202 Mich App 181, 196; 508 NW2d 161 (1993) (CORRIGAN,

P.J., concurring), citing Beckwith v United States, 425 US 341; 96 S Ct 1612; 48 L Ed 2d 1

(1976) (holding that a home interview was not “so inherently coercive” as to implicate Miranda,

and reasoning that the holding in Miranda was “grounded squarely” in the unfamiliar, “police-

dominated” setting in which most custodial interrogations take place). See also Minnesota v

Murphy, 465 US 420, 433; 104 S Ct 113; 79 L Ed 2d 409 (1984) (“Many of the psychological

ploys discussed in Miranda capitalize on the suspect’s unfamiliarity with the officers and the

environment.”).

Second, the questions posed to defendant by Rabineau were the sort of initial fact-

finding, on-the-scene questioning that is not governed by Miranda. See Miranda, 384 US at 477

(“General on-the-scene questioning as to facts surrounding a crime or other general questioning

of citizens in the fact-finding process is not affected by our holding.”). While Rabineau was

questioning defendant, Claeys was questioning the motel manager. It is clear that the purpose of

those interviews was to establish background facts to further the police investigation into the

victim’s death. That defendant may have become the focus of the investigation during his initial

interview does not transform the interview into a custodial interrogation. See Hill, 429 Mich at

391 (“[T]he fact that an individual has become the ‘focus’ of an investigation does not trigger the

Miranda requirement.”).

Finally, defendant has failed to cite any objective evidence indicating that a reasonable

person in his situation would not have felt free to leave. A reasonable person, upon encountering

the lifeless body of a friend and calling for assistance, will expect that the responding paramedics

and police will have questions. A reasonable person will also, however, understand that there is

no corresponding obligation to remain at the scene and answer. A civic-minded individual may

feel a duty to do so, but there is no compulsion. Indeed, although defendant’s subjective

understanding is not the proper focus of the instant inquiry—particularly given that he was

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intoxicated—it bears mention that defendant admitted at trial that he believed he was free to

leave. Under the circumstances, the trial court properly concluded that Rabineau’s initial

questioning of defendant did not qualify as a custodial interrogation.

2. STATEMENTS TO HART

Defendant also argues that the trial court erred by refusing to suppress the statements

defendant made in Detective-Sergeant Hart’s presence while handcuffed in an interview room.

Again, based on the totality of the circumstances, we disagree.

There is no doubt that defendant was in custody when he made the statements in

question—he was handcuffed in a police interrogation room. And although he had been advised

of his Miranda rights, he had evidently indicated that he did not wish to speak to the police,

thereby invoking his Fifth Amendment right to remain silent.

In any event, there is no contention that Hart subjected defendant to any express

questioning. Instead, according to defendant, Hart simply sat across the table “with a scowl on

his face,” which made defendant feel like he was “under pressure.”

[T]he Miranda safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional equivalent. That is to say,

the term “interrogation” under Miranda refers not only to express questioning, but

also to any words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect. The latter portion of this

definition focuses primarily upon the perceptions of the suspect, rather than the

intent of the police. This focus reflects the fact that the Miranda safeguards were

designed to vest a suspect in custody with an added measure of protection against

coercive police practices, without regard to objective proof of the underlying

intent of the police. A practice that the police should know is reasonably likely to

evoke an incriminating response from a suspect thus amounts to interrogation.

But, since the police surely cannot be held accountable for the unforeseeable

results of their words or actions, the definition of interrogation can extend only to

words or actions on the part of police officers that they should have known were

reasonably likely to elicit an incriminating response. [Rhode Island v Innis, 446

US 291, 300-302; 100 S Ct 1682; 64 L Ed 2d 297 (1980) (footnotes omitted).]

Hart’s conduct in this case—sitting across from defendant and looking at him, possibly

with a scowl—was not behavior that Hart should have known was reasonably likely to elicit an

incriminating response5 from defendant. It is true that defendant was upset and intoxicated, and

5

Because the prosecution sought to introduce it at trial, however, the response actually elicited

from defendant in this case qualifies as “incriminating” under the applicable legal definition.

See Innis, 446 US at 301 n 5 (“By ‘incriminating response’ we refer to any response—whether

inculpatory or exculpatory—that the prosecution may seek to introduce at trial.”).

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Hart presumably knew as much. Nevertheless, after defendant had just indicated that he was

exercising his right to remain silent, Hart had no reason to suspect that, by remaining in the room

with defendant and looking at him, Hart would somehow elicit information useful to the

prosecution. Accordingly, the trial court did not err by denying defendant’s motion to suppress

defendant’s statements to Hart.

3. EVIDENTIARY ARGUMENTS

Intermingled with his claims of error regarding the trial court’s suppression rulings,

defendant also contends that the trial court abused its discretion by finding defendant’s

statements to Hart admissible under MRE 401, MRE 403, and MRE 404(b). We disagree.

Defendant’s argument regarding MRE 404(b) is entirely misplaced because it regards

statements defendant made. See People v Rushlow, 179 Mich App 172, 176; 445 NW2d 222

(1989)6 (“[A] prior statement does not constitute a prior bad act coming under MRE 404(b)

because it is just that, a prior statement and not a prior bad act.”), citing People v Goddard, 429

Mich 505, 515; 418 NW2d 881 (1988). “As the statement of a party opponent, the admissibility

analysis involves instead first determining whether the statement was relevant, and second

whether its probative value outweighed its possible prejudicial effect.” Goddard, 429 Mich at

515.

We conclude that the statements were relevant under MRE 401 because the statements

tended “to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” Here, defendant

was charged with several counts of resisting or obstructing. With regard to that offense, the

prosecution had the burden of proving that defendant (1) “assaulted, battered, wounded, resisted,

obstructed, opposed, or endangered a police officer,” and (2) “knew or had reason to know that

the person that the defendant assaulted, battered, wounded, resisted, obstructed, opposed, or

endangered was a police officer performing his or her duties.” See People v Quinn, 305 Mich

App 484, 491; 853 NW2d 383 (2014) (quotation marks and citation omitted). At trial, defendant

repeatedly denied that he had done so, alleging that the police brutalized him for no apparent

reason. The statements defendant made to Hart—and more importantly, the manner in which he

made such statements—constituted circumstantial evidence from which it could be inferred that

defendant did, in fact, violently resist the police. Hence, the statements had logical relevance to

a fact of consequence in this case.

Furthermore, we perceive no abuse of discretion in the trial court’s decision concerning

the admissibility of such statements under MRE 403. Although all evidence against a defendant

is, by nature, prejudicial to some degree, MRE 403 “does not prohibit prejudicial evidence; only

evidence that is unfairly so.” People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).

“Evidence is unfairly prejudicial when there exists a danger that marginally probative evidence

will be given undue or preemptive weight by the jury.” Id. Here, in light of the resisting or

6

Criticized on other grounds by People v Mayfield, 182 Mich App 282, 284; 451 NW2d 583

(1990), rev’d 437 Mich 1060 (1991).

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obstructing charges against him, the statements defendant made in Hart’s presence were certainly

probative. Additionally, there is nothing to suggest a danger that such statements would have

been given undue or preemptive weight by the jury. On this record, given the balancing nature

of the MRE 403 inquiry, and considering that “a trial court’s decision on a close evidentiary

question ordinarily cannot be an abuse of discretion,” People v Cameron, 291 Mich App 599,

608; 806 NW2d 371 (2011) (quotation marks and citation omitted), we cannot conclude that the

trial court’s decision fell outside the range of reasonable and principled outcomes.

B. OUTSTANDING FELONY WARRANT

While cross-examining Sergeant Claeys, defense counsel asked whether defendant had

been placed under arrest during a specific timeframe. Claeys replied, “At that time, I believe we

had learned of an outstanding felony warrant for him.” Defense counsel moved to strike

Claeys’s answer as nonresponsive.7 The trial court did so, admonishing the jury to disregard

Claeys’s response.

Nevertheless, on appeal defendant contends that he is entitled to a new trial because

Claeys’s testimony about the outstanding warrant was improper propensity evidence under MRE

404(b). We disagree.

The prosecution concedes this error, acknowledging that Claeys’s testimony was

improper. Even so, reversal is unwarranted. Even if Claeys’s testimony about the felony

warrant did constitute error, any prejudice was remedied when the trial court struck the

testimony and instructed the jury to disregard it. “Jurors are presumed to follow instructions, and

instructions are presumed to cure most errors.” People v Petri, 279 Mich App 407, 414; 760

NW2d 882 (2008). Such presumptions apply “unless there is an overwhelming probability that

the jury will be unable to follow the court’s instructions, and a strong likelihood that the effect of

the evidence would be devastating to the defendant.” People v Dennis, 464 Mich 567, 581; 628

NW2d 502 (2001) (quotation marks and citation omitted; emphasis added). Here, after plenary

review of the record, we find no overwhelming probability that the jury would have been unable

to follow the court’s instructions. Moreover, the prejudicial impact of the evidence was minimal;

it was evidence that defendant had an outstanding felony warrant for some unspecified offense.

The effect of such evidence was not “devastating” to defendant. Hence, we presume that the trial

court’s instructions cured the purported error, and defendant is unentitled to reversal.

C. CROSS-EXAMINATION REGARDING DEFENDANT’S SILENCE

While cross-examining defendant, the prosecution posed the following question:

7

Later, out of the presence of the jury, defense counsel acknowledged that he believed that

Claeys’s response “was answering [counsel’s] questions to a certain extent,” further stating that

counsel was neither moving for a mistrial nor “making the insinuation that it was done on

purpose to try to prejudice the jury.”

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Wouldn’t it be fair to say, sir, that if a person were accused of killing

somebody else, especially somebody who, according to your testimony, you had

no beef with, you got along with, and you had information that someone else had

done something to that person, would it not make sense to you that such a person

of [sic] falsely accused would be screaming and yelling from the treetops that

they didn’t do it?

Defendant objected, arguing that the prosecution’s question improperly criticized defendant for

relying on his Fifth Amendment right to remain silent. After considering the matter, the trial

court sustained defendant’s objection to the extent that the prosecution’s question commented on

defendant’s post-Miranda silence.

On appeal, defendant again argues that the prosecution’s question was improper, this time

contending that the impropriety of the question entitles him to reversal. We find no plain error

entitling defendant to appellate relief.8

As the trial court’s ruling suggests, the prosecution’s question was not entirely improper,

only partially so. It is well-settled that a testifying defendant cannot be impeached by evidence

of his or her “post-arrest, post-Miranda silence[.]” Clary, 494 Mich at 271. Thus, to the extent

that the prosecution’s question could have been construed as questioning defendant regarding his

post-arrest, post-Miranda silence, the question was improper.

It is also well-settled, however, that neither the Fifth nor the Fourteenth Amendments are

“violated by the use of prearrest silence to impeach a criminal defendant’s credibility.” Jenkins v

Anderson, 447 US 231, 238-240; 100 S Ct 2124; 65 L Ed 2d 86 (1980) (emphasis added).

Moreover, “where a defendant has received no Miranda warnings, no constitutional difficulties

arise from using the defendant’s silence before or after his arrest as substantive evidence unless

there is reason to conclude that his silence was attributable to the invocation of the . . . Fifth

Amendment privilege.” People v Solmonson, 261 Mich App 657, 665; 683 NW2d 761 (2004)

(emphasis added).

Accordingly, the prosecution’s question was largely proper. After defendant chose to

testify, it was proper to impeach his credibility by inquiring why, before he was under arrest and

advised of his Miranda rights, he failed to mention the unidentified couple, the other man, and

their supposed involvement in the victim’s murder to either the motel manager or the responding

police officers. Defendant’s pre-Miranda silence was also admissible as substantive evidence

because there is no indication that such silence was attributable to his desire to invoke his Fifth

Amendment privilege. On the contrary, defendant was not silent before or after his arrest—he

spoke to the manager and the police at length.

8

“[T]o preserve an issue of prosecutorial misconduct, a defendant must contemporaneously

object and request a curative instruction.” Bennett, 290 Mich App at 475. Defendant timely

objected to the prosecution’s challenged question, but he failed to request a curative instruction.

Thus, this issue is unpreserved.

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Because the challenged question was largely proper, defendant has failed to show it

constituted plain error. Instead, it appears to have been an imprecisely worded question that

delved, for the most part, into a proper subject matter. Additionally, in light of the sustained

objection to the question and the overwhelming evidence of defendant’s guilt, defendant has

failed to carry his burden of showing that the purported error was outcome determinative.

Consequently, defendant’s instant claim of error necessarily fails.

D. AUTOPSY PHOTOGRAPHS

In the trial court, defendant objected to the prosecution’s planned use of numerous

photographs from the victim’s autopsy. After reviewing the photographs in camera, the trial

court excluded “a fair number” from being shown to the jury, including photographs of the

victim’s genitals and in which the victim’s scalp was “pulled back” and “parts of the skull [we]re

removed,” reasoning that such images had little evidentiary value. The court decided to permit

the jury to view “the majority” of the photographs depicting the exterior of the victim’s body.

Only a few of the autopsy photographs shown to the jury depict the victim’s internal anatomy.

On appeal, defendant contends that the trial court abused its discretion by permitting the

jurors to view such “gruesome” autopsy photographs. We disagree.

“All evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of

prejudice does not generally render the evidence inadmissible. It is only when the probative

value is substantially outweighed by the danger of unfair prejudice that evidence is excluded.”

People v Mills, 450 Mich 61, 75; 537 NW2d 909 (1995), mod on other grounds 450 Mich 1212

(1995). “Photographs are not excludable simply because a witness can orally testify about the

information contained in the photographs,” and photographs may “be used to corroborate a

witness’ testimony.” Id. at 76. Moreover, “[g]ruesomeness alone need not cause exclusion.” Id.

Instead, “[t]he proper inquiry is always whether the probative value of the photographs is

substantially outweighed by unfair prejudice.” Id.

Here, the autopsy photographs, although certainly gruesome and thus prejudicial, had

undeniable probative value. To prove the second-degree murder charge against defendant, the

prosecution was required to demonstrate that he acted with malice, i.e., with “the intent to kill,

the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of

the likelihood that the natural tendency of such behavior is to cause death or great bodily harm.”

See People v Bergman, 312 Mich App 471, 487; 879 NW2d 278, 288 (2015). The most visually

disturbing photographs were used to corroborate expert testimony regarding the damage to the

victim’s neck and the degree of force that was exerted to cause such damage. Thus, the autopsy

photographs were highly probative regarding the malice element at issue in this case.

It is true that the victim’s cause of death was never really in dispute. In other words,

there was no genuine dispute at trial whether the victim was murdered, only whether defendant

was the killer. Regardless, the trial court’s ruling regarding the autopsy photographs did not fall

outside the range of reasonable and principled outcomes; rather, it was the sort of discretionary

judgment about which reasonable minds might have reached differing outcomes. “The abuse of

discretion standard involves more than just a difference of opinion,” and “a trial court’s decision

on a close evidentiary question ordinarily cannot be an abuse of discretion.” Cameron, 291 Mich

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App at 608 (quotation marks and citation omitted). On this record, we cannot conclude that the

trial court’s ruling regarding the autopsy photographs constituted an abuse of discretion.

E. ADMISSION OF SEARCH WARRANTS AND THE SUPPORTING AFFIDAVITS

On the second day of trial, the prosecution sought the admission of two search warrants,

each of which was supported by an affidavit from an attesting officer. Defendant objected,

arguing that the warrants contained inadmissible hearsay. The trial court held that the warrants

were admissible and, although it is not clear from the record whether the supporting affidavits

were admitted along with the warrants, on appeal the prosecution has acknowledged that the

affidavits were erroneously admitted into evidence.

On appeal, defendant contends that the trial court erred or abused its discretion by so

ruling. We find no error in the admission of the warrants but agree that the affidavits contained

inadmissible hearsay.

Search warrants are court orders, People v Sobczak-Obetts, 463 Mich 687, 700 n 12; 625

NW2d 764 (2001), and thus are admissible pursuant to MCL 600.2106. The same is not true,

however, of affidavits submitted in support of a search warrant. People v Tanner, 222 Mich App

626, 630; 564 NW2d 197 (1997). Thus, if the affidavits in this case contained hearsay, MCL

600.2106 did not provide a proper avenue for admission.

MRE 801(c) provides, “ ‘Hearsay’ is a statement, other than the one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.”

Under MRE 802, hearsay is not admissible unless it falls under one of the hearsay

exceptions set forth in the Michigan Rules of Evidence. If, however, the

proponent of the evidence offers the statement for a purpose other than to prove

the truth of the matter asserted, then the statement, by definition, is not hearsay.

MRE 801(c). [People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013).]

Assertions contained in an affidavit seeking the issuance of a search warrant are generally

offered to prove the truth of the matter asserted, i.e., to prove that the affiant is actually in

possession of information that justifies the issuance of the warrant. See, e.g., Tanner, 222 Mich

App at 630.

Here, as the prosecution concedes, there are assertions within the challenged affidavits

that were evidently admitted to prove the truth of the matter asserted. Further, because the

affidavits were prepared as part of the investigation into the victim’s murder, they are

inadmissible under MRE 803(6) (the business records exception) and MRE 803(8) (the public

records exception). See Solomon v Shuell, 435 Mich 104, 128-133; 457 NW2d 669 (1990)

(opinion of ARCHER, J.); Tanner, 222 Mich App at 630. Nor does the prosecution offer any other

exception under which the affidavits might have been admissible, and we perceive no valid

theory of admissibility. Hence, the trial court erred by admitting the affidavits.

Nevertheless, reversal is unwarranted. “[T]he admission of a hearsay statement that is

cumulative to in-court testimony by the declarant can be harmless error, particularly when

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corroborated by other evidence.” People v Gursky, 486 Mich 596, 620; 786 NW2d 579 (2010).

To obtain reversal, the defendant has the burden of demonstrating that, but for the hearsay error,

“it is more probable than not that a different outcome would have occurred.” Id. at 621. Here,

the hearsay statements were both cumulative to and corroborated by in-court testimony. Indeed,

defendant’s own testimony corroborated several of the hearsay assertions in the affidavits, and

the affidavits, in turn, corroborated defendant’s testimony in several respects. Given the strength

and weight of the evidence against him, defendant has failed to demonstrate that the admission of

the affidavits was more probably than not outcome determinative.

F. SURPRISE FINGERPRINT EVIDENCE

On the third day of trial, MSP forensic scientist Thomas Holcomb testified about the

forensic investigation performed by the police. On direct examination by the prosecution,

Holcomb unexpectedly testified that defendant’s fingerprint was found on a soap bottle in room

46’s bathroom. Defense counsel objected to the fingerprint evidence on the basis that it had not

been provided during discovery, and the prosecution stated that it had been unaware of such

evidence. Before the trial court ruled on the matter, the parties entered a stipulation that neither

would raise the issue of the fingerprint evidence in any further questioning of witnesses or in

argument. The defense stated that it was not requesting a curative instruction regarding the

fingerprint evidence.

In his instant appeal, defendant argues that Holcomb’s surprise testimony—even if

inadvertent on behalf of the prosecution—denied defendant of his due process right to a fair trial.

We find no plain error warranting reversal.9

Even assuming, for the sake of argument, that the surprise fingerprint evidence

constituted plain error, defendant has not carried his burden of establishing that such error

prejudiced his substantial rights. Given the testimony that defendant had been in room 46 with

the victim drinking before the murder and that defendant was actually in room 46’s bathroom

when the victim was killed, the presence of defendant’s fingerprints on the soap bottle bears no

inculpatory import. As such, defendant cannot carry his plain-error burden of showing that the

fingerprint evidence was outcome determinative.

Furthermore, “a defendant must raise objections at a time when the trial court has an

opportunity to correct the error and cannot harbor error as an appellate parachute.” People v

Buie, 491 Mich 294, 299; 817 NW2d 33 (2012) (quotation marks and citation omitted). Here,

the parties’ stipulation prevented the trial court from addressing this potential error, as did

defendant’s decision to forgo a curative instruction. Defendant cannot now use the trial court’s

failure to issue a ruling as an appellate parachute.

9

Because the parties stipulated to their own remedy for the purported error, the trial court never

ruled on this issue. Therefore, it is unpreserved. See People v Metamora Water Serv, Inc, 276

Mich App 376, 382; 741 NW2d 61 (2007) (“For an issue to be preserved for appellate review, it

must be raised, addressed, and decided by the lower court.”).

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G. IMPEACHMENT BY SUPPRESSED STATEMENT

Defendant next argues that the trial court erred by permitting the prosecution, as

impeachment evidence in rebuttal of defendant’s testimony, to introduce the previously

suppressed statement defendant made to Claeys. We disagree. Because it was contrary to

defendant’s trial testimony, the previously suppressed statement was admissible for

impeachment purposes. See Kansas v Ventris, 556 US 586, 590-591, 594; 129 S Ct 1841; 173 L

Ed 2d 801 (2009) (explaining that, with the exception of “a truly coerced confession,” “tainted

evidence—evidence whose very introduction does not constitute the constitutional violation, but

whose obtaining was constitutionally invalid—is admissible for impeachment.”).

H. ALIBI INSTRUCTION

Defendant argues that the trial court abused its discretion, thereby denying defendant his

rights to a fair trial and a properly instructed jury, by denying defendant’s request for an alibi

instruction. We agree that the trial court abused its discretion by refusing to give an alibi

instruction, but we conclude that reversal is unnecessary.

“A criminal defendant is entitled to have a properly instructed jury consider the evidence

against him.” People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002). “When a defendant

requests a jury instruction on a theory or defense that is supported by the evidence, the trial court

must give the instruction.” Id. Moreover, although a trial court has discretion to exclude alibi

evidence as a penalty for a defendant’s failure to file a notice of alibi pursuant to MCL 768.20,

People v McMillan, 213 Mich App 134, 140; 539 NW2d 553 (1995), our Supreme Court has

“unequivocally stated that if requested, an alibi instruction must be given,” even if the supporting

evidence was excluded for failure to file an alibi notice or if the alibi defense is supported only

by the defendant’s uncorroborated testimony, People v McGinnis, 402 Mich 343, 345; 262

NW2d 669 (1978).

Alibi evidence is evidence “offered for the sole purpose of placing the defendant

elsewhere than at the scene of the crime.” Id. (quotation marks and citation omitted). “While a

defendant’s general denial of the charges against him does not constitute an alibi defense, if a

defendant gives specific testimony regarding his whereabouts at the time in question, it is alibi

testimony the same as if another witness had given the testimony[.]” Id. at 346 (citation

omitted).

Here, the trial court improperly focused on defendant’s sheer proximity to the scene of

the murder, refusing to provide an alibi instruction because defendant claimed that he was in the

adjacent bathroom at the time of the murder. In other words, the trial court held that it was

immaterial that defendant testified that he was in a different room and “behind a closed door”

when the victim was killed, reasoning that defendant was nevertheless at the “scene” of the crime

for alibi purposes. By so ruling, the trial court erred. As explained by 21 Am Jur 2d, Criminal

Law, § 179, “for a credible alibi to exist, the defendant must be at a different place so remote or

distant or under such circumstances that the defendant could not have committed the offense for

which the defendant is being charged.” (Emphasis added.) Defendant testified that he was in the

bathroom alone, with the door closed and locked, at the time the victim was murdered. In other

words, defendant testified that he was in a different place under such circumstances that he could

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not have committed the murder; it is impossible to beat someone and strangle them to death

through a closed, locked door. By holding, as a matter of law, that such circumstances did not

constitute an alibi, the trial court erred. Its error in that regard led it to abuse its discretion by

denying defendant’s requested alibi instruction.

Notwithstanding, reversal is unwarranted. Under the harmless error rule set forth by

MCL 769.26,

if an applicable instruction was not given, the defendant bears the burden of

establishing that the trial court’s failure to give the requested instruction resulted

in a miscarriage of justice. The defendant’s conviction will not be reversed

unless, after examining the nature of the error in light of the weight and strength

of the untainted evidence, it affirmatively appears that it is more probable than not

that the error was outcome determinative. [Riddle, 467 Mich at 124-125 (citations

omitted).]

Here, defendant has failed to carry his burden of proving that it is more probable than not

that the instructional error was outcome determinative. Although the trial court refused to

provide an alibi instruction, defendant was permitted to testify about his alibi at trial and the jury

was properly instructed about both the presumption of innocence and the prosecution’s burden of

proving guilt beyond a reasonable doubt. Had the jury found defendant’s alibi testimony to be

credible, it necessarily follows that the jury would have found the prosecution’s proofs regarding

the murder to be insufficient. See People v Burden, 395 Mich 462, 467; 236 NW2d 505 (1975)

(opinion of KAVANAGH, C.J.) (“[I]f the alibi is established, a perfect defense has been shown.

Perhaps more importantly, if any reasonable doubt exists as to the presence of the defendant at

the scene of the crime at the time the offense was committed (if such presence is necessary to

commit the crime), the defendant must also be acquitted.”). Again, if defendant was truly in the

bathroom as he testified, common sense dictates that he could not have committed the murder

offense. Given the weight and strength of the untainted evidence against him, defendant has

failed to show that it is more probable than not that the instructional error was outcome

determinative.

I. JURY INSTRUCTION PURSUANT TO MCL 763.9

To the extent that defendant also argues that he was entitled, pursuant to MCL 763.9, to a

jury instruction regarding the failure of the police to record defendant’s statements to Hart,

defendant’s trial counsel waived any such argument by stipulating to the jury instructions that

were given. “A stipulation constitutes a waiver of any alleged error, so there is no error for us to

review.” People v Eisen, 296 Mich App 326, 328-329; 820 NW2d 229 (2012).

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Defendant also contends, however, that his trial counsel performed ineffectively by

failing to request an instruction under MCL 763.9 and by waiving any claim of error in that

regard.10 We find defendant’s argument unavailing.

“Counsel is not ineffective for failing to advance a meritless position or make a futile

motion,” Henry (After Rem), 305 Mich App at 141, and Hart was not required to record the

statements defendant made in the interview room under MCL 763.8(2). As recently explained in

People v Barritt, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 333206), slip op

at 5, “MCL 763.7 is the definitional provision that applies to MCL 763.8[.]” Hence, as used in

MCL 763.8, “interrogation” means “questioning in a criminal investigation that may elicit a self-

incriminating response from an individual and includes a law enforcement official’s words or

actions that the law enforcement official should know are reasonably likely to elicit a self-

incriminating response from the individual.” MCL 763.7(b). In other words, for purposes of

MCL 763.8(2), an interrogation includes the same conduct that qualifies as a custodial

interrogation under the Innis standard. Compare Innis, 446 US at 300-302. As we have already

explained, Hart did not subject defendant to a “custodial interrogation” as that phrase is defined

by Miranda and its progeny, including Innis. Because Hart did not subject defendant to an

“interrogation” under MCL 763.8, as that word is statutorily defined, the failure to record the

interview did not violate MCL 763.8 and defendant was unentitled to an instruction pursuant to

MCL 763.9. Defendant’s trial counsel could, therefore, not have performed ineffectively by

failing to request such an instruction.

Additionally, even assuming, arguendo, that counsel did perform ineffectively by failing

to request an instruction under MCL 763.9, defendant has failed to demonstrate a reasonable

probability that, but for counsel’s purported error, the result of the proceedings would have been

different. The statements that defendant made to Hart, although reflective of defendant’s then

extant state of mind and probative regarding the resisting and obstructing charges, had no direct

inculpatory weight. Furthermore, on cross-examination, defendant’s trial counsel effectively

impeached Hart about the lack of a video recording, prompting Hart to admit that he had

assumed that the interview was being recorded when it actually was not. For those reasons, we

conclude that defendant’s instant claim of error entitles him to no relief.

Affirmed.

/s/ Stephen L. Borrello

/s/ Kurtis T. Wilder

/s/ Brock A. Swartzle

10

Because defendant failed to duly preserve this issue by filing the requisite motions in the trial

court, our review is for any error apparent on the record. See People v Matuszak, 263 Mich App

42, 48; 687 NW2d 342 (2004); People v Sabin (On Second Remand), 242 Mich App 656, 658-

659; 620 NW2d 19 (2000).

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