People of Michigan v. Albert McKinley IV

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

January 23, 2018

Plaintiff-Appellee,

v No. 332519

Macomb Circuit Court

ALBERT MCKINLEY IV, LC No. 2015-003636-FC

Defendant-Appellant.

Before: METER, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of first-degree murder, MCL

750.316, armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL

750.157a and MCL 750.529. The trial court sentenced defendant, as a fourth-habitual offender,

MCL 769.12, to concurrent sentences of life without parole for first-degree murder, and life in

prison for armed robbery and conspiracy to commit armed robbery. We affirm.

I. FACTS

On March 26, 2015, defendant and Ujuan Burton drove to Bernie’s Market in Clinton

Township in a truck belonging to Burton’s mother. The two parked some distance from the

store. Burton left the vehicle and walked to the store while defendant drove the truck behind the

store. Burton entered the store with a gun drawn. The owner of Bernie’s Market, Emil Salem,

fired his own weapon at Burton, striking him in the face and foot. However, Burton returned

fire. One shot struck Salem in the head, killing him.

Burton left the store and went to the truck that had been relocated by defendant.

Defendant then drove Burton to a home in Detroit. During the drive, the men contacted Shardae

Burt, who was Burton’s girlfriend at the time. Burt also had some medical training. Burt met

the two at the home in Detroit. She drove Burton to a hospital in Findlay, Ohio in an effort to

avoid detection in Michigan. However, the hospital in Findlay transferred Burton to a hospital in

Toledo, Ohio. In Toledo, Burton and Burt were arrested. Burt was picked up by Detective

James Hertel, who worked for the Clinton Township Police Department.

Defendant’s name came up in the investigation after Burt was driven back to Michigan.

A warrant was obtained for defendant’s arrest, and he was arrested on August 19, 2015. That

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evening, defendant spoke to Hertel and Detective Dan Quinn. Defendant first denied being

present at the scene of the robbery, claiming instead that he was with his girlfriend that night.

However, when presented with evidence contradicting this version of events, defendant asked to

speak with his attorney. He also asked to speak with family members. As will be discussed in

more detail later in this opinion, the detectives honored both requests.

After speaking with his family, defendant asked to speak with the detectives again. After

confirming that defendant wished to speak to them without an attorney, defendant gave a

different version of the events of March 26, 2015. Defendant admitted that he was with Burton

the night of the robbery. He admitted that the two drove to the store, and that Burton had

explained his desire to commit the robbery. Defendant claimed that he did not agree with

Burton, and in fact, tried to talk Burton out of committing the robbery. However, Burton

ultimately could not be swayed. Defendant acknowledged that after the robbery, he drove

Burton to the home in Detroit, and that Burt then drove Burton to Ohio. Defendant also

explained that he helped move the truck to a different location, after which it was thoroughly

cleaned.1

At trial, evidence was presented through Sergeant Randy Diegel of the Eastpointe Police

Department. Diegel explained that he was part of task force that investigated a series of armed

robberies of liquor stores in December 2000 and January 2001. Defendant and Burton were

arrested as a result of this operation after they committed a carjacking and attempted what would

have been their eighth armed robbery over the course of approximately two weeks. Diegel

explained that after his arrest, defendant admitted to participating in the robberies and carjacking.

As a result of these crimes, defendant was incarcerated until his release in January 2013.

Evidence of another, much more recent armed robbery was also admitted at defendant’s trial.

During his interview with Quinn and Hertel, defendant admitted that he, Burton, and a third man

committed another armed robbery just a few months before the robbery of Bernie’s Market.

II. DISCUSSION

A. MOTION TO SUPPRESS

Defendant first argues that the trial court erred when, after holding a Walker2 hearing, the

court denied his motion to suppress his statements to police. We disagree. After a Walker

hearing, the trial court’s factual findings are reviewed for clear error, while the trial court’s

ultimate decision is reviewed de novo. People v Smart, 304 Mich App 244, 247; 850 NW2d 579

1

At trial, evidence of a second confession by defendant, this time to a fellow inmate with whom

defendant had a prior relationship, was also presented. In this confession, defendant expressed

feeling some trepidation regarding whether to commit the robbery, but only because he believed

Salem might be armed. Eventually, defendant agreed with Burton to commit the robbery. After

the robbery, defendant instructed his girlfriend to dispose of the gun used by Burton because it

could be traced back to defendant.

2

People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

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(2014). A factual finding is clearly erroneous if it leaves this Court with the “definite and firm

conviction that the trial court made a mistake.” People v Manning, 243 Mich App 615, 620; 624

NW2d 746 (2000).

Before addressing the issues raised before us, and because defendant seemingly fails to

understand the distinction, we begin with the following observations. A criminal defendant’s

right to counsel may be derived from two different sources. While the Sixth Amendment is one

source of a criminal defendant’s right to counsel, there also exists “a prophylactic right [to

counsel] found in the [United States] Supreme Court’s jurisprudence relating to the Fifth

Amendment right against compelled self-incrimination and to due process . . . .” People v

Williams, 244 Mich App 533, 538; 624 NW2d 575 (2001). But the “Fifth Amendment right to

counsel is distinct and not necessarily coextensive with the right to counsel afforded criminal

defendants under the Sixth Amendment.” Id. As this Court has explained:

Indeed, the Fifth Amendment right to counsel during a custodial interrogation

serves an entirely different purpose than the Sixth Amendment right to counsel at

trial. The right to counsel found in the Fifth Amendment “is designed to

counteract the ‘inherently compelling pressures’ of custodial interrogation,”

McNeil v Wisconsin, 501 US 171, 176; 111 S Ct 2204; 115 L Ed 2d 158 (1991),

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

to secure a person’s privilege against self-incrimination by allowing a suspect to

elect to converse “with the police only through counsel.” McNeil, supra at 176.

The procedural safeguards for this right to counsel adopted in Miranda require

that the police discontinue the questioning of a suspect when a request for counsel

is made. These safeguards, however, apply only when there is a custodial

interrogation of a suspect. [People v ]Marsack, [231 Mich App 364,] 374[; 586

NW2d 234 (1998)]. [Williams, 244 Mich App at 538-539.]

In this case, defendant’s statement was made before any adversarial proceedings against

him began.3 “Because adversarial proceedings had not been initiated against defendant . . . , the

Sixth Amendment right to counsel is not implicated.” Id. at 539. Rather, and as the prosecutor

correctly observes, the question of suppression is solely limited to the vindication of defendant’s

rights under the Fifth Amendment. Id.

“In Edwards v Arizona, 451 US 477, 484; 101 S Ct 1880; 68 L Ed 2d 378 (1981), the

United States Supreme Court established the bright-line rule that an accused, having expressed a

desire to deal with the police only through counsel, may not be subject to further interrogation by

the authorities until counsel has been made available unless the accused initiates further

communication.” People v McRae, 469 Mich 704, 715; 678 NW2d 425 (2004). However, a

request for counsel must be unequivocal. People v Tierney, 266 Mich App 687, 711; 703 NW2d

3

Adversarial proceedings begin with a formal charge, preliminary hearing, indictment,

information, or arraignment. People v Hickman, 470 Mich 602, 607; 684 NW2d 267 (2004). No

such proceedings had been initiated against defendant at the time of his interview.

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204 (2005). “[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in

that a reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel, our precedents do not require the cessation of

questioning.” Davis v United States, 512 US 452, 459; 114 S Ct 2350; 129 L Ed 2d 362 (1994).

Whether a defendant has unequivocally invoked the right to counsel is an objective inquiry.

People v Adams, 245 Mich App 226, 237; 627 NW2d 623 (2001), citing Davis, 512 US at 458.

A defendant’s comments must be evaluated in context. See Adams, 245 Mich App at 237-239

(holding that an isolated question, “Can I talk to him [a lawyer] right now?” was not an

unequivocal request for counsel; when understood in context of the larger conversation between

the defendant and police, this question and others were “merely inquiries into the way the

process worked, not an actual demand for an attorney.”). Further, even if the right is invoked, a

defendant’s responses to further interrogation may be admitted at trial if the defendant, after

initially invoking the right to counsel, initiates contact with the police and knowingly and

voluntarily waives the right previously invoked. Smith v Illinois, 469 US 91, 95; 105 S Ct 490;

83 L Ed 2d 488 (1984).

At the beginning of defendant’s interview with Quinn and Hertel, defendant asked, “So,

what, I’m being charged right now?” Quinn responded, “Yes, you are being charged. Okay. So

before we even start getting into anything, I’m going to read you your Miranda rights.” After

being read his Miranda4 rights, defendant agreed that he understood his rights. The following

exchange occurred:

Detective Quinn: Do you want to talk about it Al, give us your side of the

story?

Defendant: I mean, I’d rather talk to my lawyer if you say I’m being

charged.

Detective Quinn: Okay. And you are being charged.

Defendant: Right now. So what I’m being charged with [sic]?

Detective Quinn: Felony murder, conspiracy armed robbery, and armed

robbery.

Defendant: Felony murder and conspiracy.

Detective Quinn: Mm-hmm.

Defendant: Armed robbery and armed robbery?

4

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

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Detective Quinn: Right. And that’s why we’re trying to get your side of

the story because obviously there’s a lot more going on, you know, the people

[sic] are pointing a finger at other people.

Defendant: So people are pointing fingers at me?

Detective Quinn: Well, there’s a reason why you’re being charged and

you’re under arrest right now. So, like I say, this is your opportunity to give us

your side, but if you want an attorney I’m going to not even ask you any

questions. We’re going to abide by your wishes. If you want to talk to us, give us

your side of the story, we’ll listen. But if what you’re asking for is an attorney,

I’m going to abide by that and you know.

Defendant: Because I really want to get this cleared up.

Detective Quinn: So do we.

Defendant: And so, um, I think it’s best – I don’t know what’s going on

far as what they got going on –

Detective Quinn: Uh-huh.

Defendant: —so, therefore, I’m not going to—because I know I wasn’t

there.

Detective Quinn: Okay.

Defendant: So, I know where I was at.

Detective Quinn: Okay.

Defendant: So, therefore, I’d just talk to a lawyer.

Detective Quinn: Okay. All right. I’m not going to ask you any questions

then. Going to abide by that. Okay. [Emphasis supplied.]

Defendant argues that the interrogation should have ceased immediately after the first

emphasized statement, in which he stated he would rather talk to a lawyer if he was being

charged. This was not an unequivocal invocation of the right to counsel; rather, the invocation of

that right was conditioned on whether he was being charged. Objectively speaking, the

statement was more of a question by defendant, asking Quinn whether he was being charged.

And for the most part, the colloquy that followed, which largely consisted of questions posed by

defendant and answered by Quinn, does not objectively demonstrate an unequivocal invocation

of the right to counsel. Davis, 512 US at 459; Adams, 245 Mich App at 237-239.

However, we agree that the second emphasized statement—”So, therefore, I’d just talk to

a lawyer[,]”—was an unequivocal request for counsel. What transpired before this statement

was a discussion during which defendant seemed to be obtaining information to decide whether

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to invoke the right to counsel he had previously mentioned. Thus, this statement seemed, at least

in that moment, to be a final decision: that after learning exactly what charges he faced,

defendant thought it best to have an attorney present before answering any questions. Quinn

certainly understood it that way, responding to the statement by explaining that he would respect

that decision and end the interview. Viewed objectively, this second statement was an

unequivocal request for counsel. Davis, 512 US at 459; Adams, 245 Mich App at 237-239.

But after this unequivocal request for counsel, and immediately after Quinn stated that he

would end the interview, defendant responded, “I would love to answer your questions.” This

led to the following discussion between defendant and the officers:

Defendant: I would love to answer your questions.

Detective Quinn: Sure. Well, how about this, and it never happens when

everybody says they’re going to, when you speak with your attorney if you want

to sit down, we’re still willing to listen to what you have to say. Okay. We’re

willing to listen, sit down with your attorney and give us your side of the story,

give us an explanation. Okay. We’re—that door is still open. Okay. But I’m

telling you though it’s been our experience everybody who walks out of here and

says don’t worry I’m going to talk to you, I just want to talk to my attorney first, it

never happens, because everybody just don’t say anything [sic]. Okay.

Unfortunately, with that is you never get your opportunity to give your side of the

story so the evidence we already have that just goes to the prosecutor’s office and

it’s kind of one-sided.

Defendant: So, what, you’re saying by my not—

Detective Quinn: No, no. I’m not trying to talk you into talking.

Defendant: I’m just, I’m just saying by me not talking right now.

Detective Quinn: This is your opportunity to give us your side of the

story. Okay. But you’ve asked for an attorney, I’m going to—I’m going to—

Defendant: I never want anything to be one-sided.

Detective Quinn: Sure.

Defendant: So like I say, I’m willing to talk so, I can always stop talking

if I feel uncomfortable.

Detective Quinn: Right. But you’ve mentioned you want an attorney, so

I’m going to, you know, acknowledge your, you know, your desire, you know.

Defendant: We can talk right now.

Detective Quinn: You want to talk right now?

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Defendant: Mm-hmm.

Detective Quinn: Like I say, I don’t want to give you the impression I’ll

try to talk you into talking [sic]. It’s got to be strictly your choice, right. You’re

the one that’s going to have to say that I want to talk, because honestly right now

you’ve asked for an attorney. I’m, I’m not going to ask you questions if you want

an attorney. You know, you have that right and Detective Hertell [sic] and I are,

you know, we’ll abide by your wishes what, you know, you have rights. Okay.

It’s got to be, it would have to be you wanting to talk.

Defendant: Okay. Talk.

Detective Hertel: You choosing to talk?

Defendant: (Nodding affirmatively).

Detective Hertel: Okay. You have to sign this just saying that you

understand the rights and you [are] willing to answer questions right now.

Detective Quinn: And you understand we’re not trying, you know, I’m

not trying to talk you into talking, you know what I mean.

Defendant: Right.

Detective Quinn: If you want your attorney, you know what I mean, that’s

your choice. And, you know, we’ll stop right now. So, you know, it’s got to be

completely you’re willing you want to talk [sic]; is that correct?

Defendant: (Nodding affirmatively).

Detective Quinn: Okay.

Detective Hertel: Your choice?

Defendant: Yeah.

Detective Quinn. Okay. All right. So now that I’ve told you the charges .

. . . So that’s why the charges are what they are. Okay.

Let’s see, I’m willing, we’re willing to listen to your side of the story. . . .

Why don’t you tell me what—how did this start that night?

In Smith, 469 US at 95, a case relied on by defendant, the United States Supreme Court

explained that “if the accused invoked his right to counsel, courts may admit his responses to

further questioning only on finding that he (a) initiated further discussions with the police, and

(b) knowingly and intelligently waived the right he had invoked.” This is precisely what

occurred here. When defendant stated that he would “love to answer [Quinn’s] questions,”

defendant initiated further discussion with the officers. Faced with what seemed to be an about-

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face from defendant’s prior position, Quinn, and to a lesser extent, Hertel, engaged in a lengthy

discussion with defendant concerning whether to continue the interview. Quinn expressed his

understanding that defendant had invoked the right to counsel, and asked defendant if he was

now voluntarily choosing to waive that right. Defendant, on multiple occasions, stated that he

now had changed his mind and wished to speak to the officers. Defendant confirmed that it was

his choice to continue the interview, and that he had not been persuaded by the officers to waive

his right to counsel. Defendant also expressed his recognition that he could invoke the right at

any point in the interview if he felt uncomfortable. Clearly, then, after initially invoking the

right to counsel, defendant (1) initiated further communication with the officers, and (2)

knowingly and intelligently waived the right to counsel. Defendant’s responses to the questions

that followed were admissible. Smith, 469 US at 95.

Defendant relies on Smith for the premise that “an accused’s postrequest responses to

further interrogation may not be used to cast retrospective doubt on the clarity of the initial

request itself.” Smith, 469 US at 100. Unlike the trial court, we accept that defendant’s second

statement—“So, therefore, I’d just talk to a lawyer[,]”—was an unequivocal request for counsel.

In our view, the pertinent question is not whether this request was unequivocal, but rather,

whether defendant then initiated further discussions with the officers, and later, knowingly and

intelligently waived the right he had invoked. Id. at 95. Defendant’s post-request statements

must be considered to answer this question.

And in any event, what immediately followed defendant’s invocation of the right to

counsel was not an interrogation at all. “For purposes of Miranda, interrogation refers to express

questioning or its functional equivalent.” People v Kowalski, 230 Mich App 464, 479; 584

NW2d 613 (1998) (quotation marks omitted). The police are not barred from having any further

communication whatsoever with a defendant after he or she has invoked the right to counsel

under Miranda. Rather, officers may engage in further communications that do not amount to

express questioning or statements likely to elicit an incriminating response from the defendant.

See id. at 480-484. Relevant to the present matter, “a mere inquiry into whether an accused has

changed his mind about wanting to speak without an attorney present is not considered

‘interrogation’ . . . .” Id. Although defendant had unequivocally asserted his right to counsel, his

statement that he would love to speak to the officers understandably caused Quinn to question

whether defendant changed his mind. It was not improper for Quinn to engage in further

discussions, limited to the question whether defendant wished to speak to the officers without

counsel, despite the fact that defendant had invoked the right to have an attorney present. Id.

After having waived the right to counsel, defendant provided his first version of events,

one that was not consistent with evidence known to the officers. Upon being confronted with

this evidence, defendant invoked the right to counsel a second time:

Defendant: Well, I’ll just wrap it [up.]

Detective Quinn: By wrap it up you mean—

Defendant: Wrap it up.

Detective Quinn: What are you saying?

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Defendant: I’ll just talk to my lawyer.

Detective Quinn: Okay. That’s okay.

Defendant: By the way, is there anyway [sic] I could call my mother?

Detective Quinn: Sure. Yeah, we’ll (indiscernible) a phone call. Okay.

Anything else?

Defendant: Let her know where I’m at. No, but I’ll—what’s your name

again?

In his appellate brief, defendant explains that he invoked the right to counsel in the above

exchange. And we certainly agree; clearly, defendant expressed his desire to end the interview

and speak with counsel. But the record also clearly shows that Quinn and Hertel honored this

decision. While the three men continued to speak, Quinn and Hertel did not discuss or ask any

further questions of defendant regarding the crime. As the interrogation ended on defendant’s

invocation of his right to have an attorney present, defendant’s rights under the Fifth Amendment

were not violated.

Defendant next takes issue with what occurred with respect to his mother, Sennie

McKinley. Defendant argues that after he invoked his right to counsel on this second occasion,

police used Sennie as their agent, and relied on her religious proclivities to coerce defendant into

then waiving his right to counsel and again speaking to police.5 As defendant recognizes,

“constitutional protections apply only to governmental action.” People v Anderson, 209 Mich

App 527, 533; 531 NW2d 780 (1995). Sennie is not a police officer, and thus, her conduct and

actions would not generally be the subject of constitutional concerns. However, individuals that

are possessed of state authority, and who purport to be acting under that authority, are considered

to be acting on behalf of the government. Thus, their actions are state actions, subject to

constitutional protections. McRae, 469 Mich at 710-711. Of course, the reverse is also true;

those who are not police officers, and who are not acting in concert with or at the behest of

police, are not state actors, and need not comply with constitutional safeguards that vindicate the

rights granted by the Fifth Amendment. Anderson, 209 Mich App at 533.

Here, there is absolutely no basis to conclude that Sennie was working in concert with or

at the behest of police. The impetus for Sennie’s appearance at the police station derived entirely

5

As background, defendant was allowed to place calls to family and request their presence at the

police station. Sennie and defendant’s sister, Tyra McKinney, came to speak with defendant.

After speaking with Sennie and Tyra, defendant reinitiated communication with Quinn and

Hertel. Quinn and Hertel again advised defendant of his Miranda rights, and defendant agreed to

waive those rights. Defendant then spoke to Quinn and Hertel, admitting that he was with

Burton at the time of the robbery, but claiming that he tried to talk Burton out of committing the

crime.

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from defendant’s actions. Defendant requested that Sennie be contacted and allowed to visit him

at the police station. Defendant himself placed the calls to his family. Sennie testified that she

was not given any direction whatsoever by the officers. In fact, it is undisputed that the officers

had never met or spoken with Sennie or Tyra before they came to the police station to visit with

defendant. There is no basis to conclude that Sennie (or Tyra, for that matter) was acting as an

agent of the police.

Defendant contends that even if Sennie was not initially acting as an agent of the officers,

she later became their agent. Defendant seems to argue that because Sennie’s words and conduct

made it clear that she was religious, the officers must have known so, and must have then

decided to use Sennie to coerce defendant into waiving his right to counsel. Defendant cites no

case law, and we have found none, holding that an individual with no prior relationship with

investigating officers somehow becomes an agent of the police by making overtly religious

statements in the presence of those officers before being allowed to speak to the suspect.

Defendant points only to Quinn’s “higher calling” comment6 as evidence that Quinn used Sennie

(and Tyra, even though she was virtually silent during the conversation) as his agents. This

comment was made to Sennie long after she began speaking with defendant. Further, as Quinn

explained at the Walker hearing, this comment was no more than Quinn stating his agreement

with Sennie that there is a higher calling, or in other words, that God exists. No inference can be

drawn from this comment that Sennie or Tyra were working as agents of the officers.

Defendant also contends that the statements made by Sennie during their meeting coerced

him into providing his statement, rendering it involuntary. Again, the constitution only protects

against unlawful actions by the government. Anderson, 209 Mich App at 533. Because Sennie

was not an agent of the government, her actions are irrelevant. Further, the evidentiary record

tends to demonstrate that defendant had made his decision to speak with the officers before he

spoke with his family members. And after speaking with Sennie, defendant repeatedly informed

officers that he was knowingly and voluntarily waiving his right to counsel, and signed a

statement to that effect, even writing, “my choice to talk” under his signature. Defendant cannot

show that he was unlawfully coerced into waiving his right to counsel and giving his statement to

police. As such, the trial court correctly denied defendant’s motion to suppress his statements.

B. EVIDENCE OF OTHER ARMED ROBBERIES

Defendant next argues that the trial court erred by permitting the prosecutor to present

evidence of his other, prior armed robberies at trial. We disagree. “The decision whether to

admit evidence is within the discretion of the trial court and will not be disturbed on appeal

absent a clear abuse of discretion.” People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67

(2001). An abuse of discretion occurs when the trial court reaches a decision falling outside the

principled range of outcomes. People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195

(2016). Even if evidentiary error occurred, reversal is not warranted if the error is harmless;

“evidentiary error does not warrant reversal if . . . it does not affirmatively appear more probable

6

After Sennie stated that she believed in God, Quinn responded, “There’s a higher calling.”

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than not that a different outcome would have resulted without the error.” People v Duenaz, 306

Mich App 85, 97; 854 NW2d 531 (2014).

1. ROBBERIES COMMITTED IN 2000 AND 2001

The first question is whether the trial court abused its discretion by allowing the

prosecutor to present evidence that defendant and Burton committed eight other armed robberies

in December 2000 and January 2001. Generally speaking, “[e]vidence of a person’s character or

a trait of character is not admissible for the purpose of proving action in conformity therewith on

a particular occasion.” MRE 404(a). In accordance with this general rule, MRE 404(b)(1)

explains that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.” But the rule goes on to explain that

such evidence:

may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, scheme, plan, or system in doing an act,

knowledge, identity, or absence of mistake or accident when the same is material,

whether such other crimes, wrongs, or acts are contemporaneous with, or prior to

or subsequent to the conduct at issue in the case. [MRE 404(b)(1).]

In addition, before evidence may be admitted in a criminal case under this rule, “The prosecution

. . . shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial

notice on good cause shown, of the general nature of any such evidence it intends to introduce

and the rationale . . . for admitting the evidence.” MRE 404(b)(2).

With respect to the crimes committed in 2000 and 2001, there is no dispute that the

prosecutor complied with MRE 404(b)(2). Rather, defendant’s focus is on whether the evidence

was admitted for a proper purpose under MRE 404(b)(1). It was. “Before other-acts evidence

may be introduced, the prosecution must satisfy a three-part test: (a) there must be a reason for

its admission other than to show character or propensity, (b) it must be relevant, and (c) the

danger of undue prejudice cannot substantially outweigh its probative value, especially if there

are other means of proof.” People v McGhee, 268 Mich App 600, 609-610; 709 NW2d 595

(2005), citing People v Sabin (After Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000).

“Evidence is relevant when it has a tendency to make a material fact more or less

probable.” McGhee, 268 Mich App at 610. “Relevance involves two elements, materiality and

probative value. Materiality refers to whether the fact was truly at issue.” Id. “The probative

force inquiry asks whether the proffered evidence tends to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” People v Crawford, 458 Mich 376, 389-390; 582 NW2d 785 (1998)

(quotation marks and citation omitted). “The threshold is minimal: any tendency is sufficient to

prove probative force.” Id. at 390 (quotation marks and citations omitted). “In the context of

prior acts evidence, however, MRE 404(b) stands as a sentinel at the gate: the proffered evidence

truly must be probative of something other than the defendant’s propensity to commit the

crime.” Id. “If the prosecutor fails to weave a logical thread linking the prior act to the ultimate

inference, the evidence must be excluded, notwithstanding its logical relevance to character.” Id.

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To defend against the charges levied against him, defendant argued that he did not intend

for the robbery to occur, and instead, was merely present when Burton entered Bernie’s Market

and killed its owner. By pursuing this defense, defendant made his intent the primary focus of

the trial. See People v Moldenhauer, 210 Mich App 158, 160; 533 NW2d 9 (1995) (explaining

that the “mere presence” defense “implies not only an absence of criminal intent but also

passivity and nonparticipation in the actual commission of the crime.”). And as the trial court

found, evidence that defendant had engaged in eight similar robberies was clearly probative, in

that it tended to show that defendant was not merely present, as he argued, but in fact, had

planned to commit the robbery with Burton and intended for the robbery to occur. “The more

often a defendant acts in a particular manner, the less likely it is that the defendant acted

accidentally or innocently, and conversely, the more likely it is that the defendant’s act is

intentional.” McGhee, 268 Mich App at 611. Indeed, given the substantial similarities between

the prior crimes and the robbery of Bernie’s Market, the incidents were likely more probative

than is generally necessary to admit the prior acts as evidence of defendant’s intent. See id. at

611 (“Where other-acts evidence is offered to show intent, the acts must only be of the same

general category to be relevant.”).

As he did in the trial court, defendant largely argues that the prior crimes were too remote

in time to be relevant. He cites no authority in support of this contention. That is likely because

Michigan law holds the opposite. In McGhee, this Court explained:

Although six years had passed between the two incidents, this Court has found

that a 20-year gap between a prior incident and a charged offense was insufficient

to dispel the probative value when the similarity of the acts indicated the

defendant’s scheme. People v Knapp, 244 Mich App 361, 380; 624 NW2d 227

(2001). The remoteness of an act only affects the weight of the evidence rather

than its admissibility. [McGhee, 268 Mich App at 611-612.]

Defendant also briefly argues that the admission of evidence of these prior crimes was

improper because the probative value of the evidence was substantially outweighed by the risk of

undue prejudice. However, defendant only explains that “the amount of time taken in the

admission of eight prior acts, the shifting of the jury’s focus from the present to the past, would

have confused any jury.” It is true that otherwise relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” MRE 403. However, we are not swayed by defendant’s

argument. We do not see how the discussion of prior acts would have confused any jury. If that

were true as a general matter, no evidence of prior crimes could ever be admitted under MRE

404(b). We are confident that the jury would not be confused or unduly distracted by the

discussion of prior crimes committed by defendant, particularly in light of the trial court’s

instructions regarding how to consider the evidence. “It is presumed that the jurors followed that

instruction.” People v Bass, 317 Mich App 241, 263; 893 NW2d 140 (2016). Defendant’s

argument lacks merit.

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2. “CASH ADVANCE” ROBBERY

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

prosecutor to admit evidence that defendant, Burton, and a third man committed a similar armed

robbery of a “Cash Advance” store just a month or two before the robbery of Bernie’s Market.

Evidence of this robbery came from defendant himself. During his interview with Quinn and

Hertel, defendant stated that he and the other men committed this particular robbery. The trial

court concluded that defendant’s statements concerning his past acts were not admissible under

MRE 402(b) due to a lack of notice but that they were admissible under MRE 801(d)(2) which

provides that a statement by a party defendant is not hearsay. This was error. The fact that a

statement is not hearsay does not immunize it from the other rules of evidence. Here, the

statement was introduced to describe prior bad acts and so is subject to MRE 404(b) and the

notice requirements. However, as explained in People v Jackson, 498 Mich 246; 869 NW2d 253

(2015), such an error is subject to a harmless error analysis. The Jackson Court explained:

[W]hile it was error for the prosecution not to provide, and the trial court not to

require, “reasonable notice” of Price’s testimony under MRE 404(b)(2), the

defendant has not demonstrated that this error “more probably than not . . . was

outcome determinative.” [People v ]Douglas, 496 Mich [557,] 566[; 852 NW2d

587 (2014)] (quotation marks omitted). As discussed above, the lack of proper

pretrial notice did not result in the admission of substantively improper other-acts

evidence. Thus, although the defendant was not afforded his due “opportunity to

marshal arguments” against its admission before it was introduced at trial, [People

v ]VanderVliet, 444 Mich [52,] 89 n 51[; 508 NW2d 114 (1993), amended 445

Mich 1205 (1994)], he has not shown that any such arguments would have been

availing, or would have affected the scope of testimony ultimately presented to

the jury. Furthermore, while the defendant suffered “unfair surprise” from the

unexpected introduction of this testimony at trial, id., he was admittedly aware of

Price’s general version of events before trial, including her and Newsome’s prior

relationships with the defendant, and he has not demonstrated how he would have

approached trial or presented his defense differently had he known in advance that

Price would be permitted to testify as she did. For instance, the defendant has not

suggested that he would have chosen to explore these prior relationships in greater

depth with Price, nor has he identified or presented offers of proof from any

witnesses he might have called in response to her testimony. He also has not

suggested that he would have altered or abandoned his theory of fabrication so as

to prevent Price from offering this testimony to counter it. We therefore cannot

conclude that the defendant suffered outcome-determinative prejudice from the

prosecution’s failure to follow, and the trial court’s failure to apply, MRE

404(b)(2). [Jackson, 498 Mich at 278-279.]

The present matter presents a very similar scenario. First, the evidence was clearly

admissible under MRE 404(b)(1). Defendant’s statement attempted to suggest he was not really

a willing participant in the armed robbery and that he did not want his colleague to proceed with

it. His participation in these recent armed robberies with the same other perpetrator

demonstrated his willingness to aid what he knew was an armed robbery. Second, defendant has

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not explained how knowing that this evidence would be admitted would have changed his trial

strategy in any way. Moreover, given his confession, it is difficult to see how this admission,

even if error, could have created “outcome-determinative prejudice.”

C. JURY INSTRUCTIONS

Finally, defendant argues that the trial court erred when it refused to instruct the jury

regarding the offense of accessory after the fact, as was requested by defendant. Defendant also

contends that this omission deprived him of his constitutional right to present a defense. We

disagree.

When preserved, “This Court reviews claims of instructional error de novo.” People v

Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). However, while defendant preserved his

claim of instructional error below, he did not contend that the failure to provide the requested

instruction denied him the right to present a defense. Thus, his constitutional claim is not

preserved. See People v Sands, 261 Mich App 158, 160; 680 NW2d 500 (2004) (explaining that,

as a general matter, “an issue is unpreserved if it is not properly raised before the trial court.”).

“Unpreserved constitutional issues are reviewed for plain error that affected a defendant’s

substantial rights.” Id. at 160. To establish plain error requiring reversal, defendant must

demonstrate that an error occurred, that “the error was plain, i.e., clear or obvious,” and that “the

plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130

(1999). Even if defendant satisfies these requirements, this Court “must exercise its discretion in

deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted

in the conviction of an actually innocent defendant or when an error seriously affected the

fairness, integrity or public reputation of judicial proceedings independent of the defendant’s

innocence.” Id. (quotation marks, brackets, and citation omitted).

Defendant argues that by refusing to give an instruction regarding the crime of accessory

after the fact, the trial court committed instructional error, and further, deprived him of a

substantial defense. But as defendant acknowledges, accessory after the fact is not a defense at

all; rather, it is a separate offense. People v Perry, 460 Mich 55, 56, 59-60; 594 NW2d 477

(1999). And as defendant likewise acknowledges, he was not charged by the prosecutor as being

an accessory after the fact in this case. “[A] defendant is entitled to a lesser offense instruction

only if that lesser offense is necessarily included in the greater offense; that is, the offense must

be committed as part of the greater offense insofar as it would be impossible to commit the

greater offense without first committing the lesser offense.” People v Jones, 497 Mich 155, 164;

860 NW2d 112 (2014) (quotation marks and citation omitted). “[T]he rule of lesser included

offenses is simple: pursuant to MCL 768.32(1), the court must first determine whether an offense

is necessarily included, which requires a comparison of the elements of the offenses, and if so,

the court must then determine whether an instruction is warranted on the facts of a particular case

by examining whether the charged greater offense requires the jury to find a disputed factual

element that is not part of the lesser included offense and a rational view of the evidence would

support the instruction.” Id. at 164-165 (quotation marks, brackets, and citation omitted).

As defendant correctly notes, our Supreme Court has held that accessory after the fact is

not a necessarily included offense of murder. Perry, 460 Mich at 62. The only remaining

question is whether accessory after the fact could be considered a lesser included offense of

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either armed robbery or conspiracy to commit armed robbery. As defendant himself concedes,

accessory after the fact is not a lesser included offense of armed robbery. Simply comparing the

elements of the two crimes shows that it is certainly possible to commit an armed robbery

without first committing the crime of accessory after the fact. “The essential elements of armed

robbery are (1) an assault, and (2) a felonious taking of property from the victim’s person or

presence, while (3) the defendant is armed with a weapon described in the statute.” People v

Henry (After Remand), 305 Mich App 127, 142-143; 854 NW2d 114 (2014) (quotation omitted).

“An accessory after the fact . . . is one who, with knowledge of the other’s guilt, renders

assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.” People v

Lucas, 402 Mich 302, 304; 262 NW2d 662 (1978) (quotation marks and citation omitted). It is

clearly possible to commit the crime of armed robbery without also committing the crime of

accessory after the fact; the crimes do not share even one common element. Accordingly,

accessory after the fact is not a lesser included offense of armed robbery. Jones, 497 Mich at

164.

The same is true when one compares accessory after the fact to the crime of conspiracy to

commit armed robbery. A conspiracy is committed when any person “conspires together with 1

or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal

manner . . . .” MCL 750.157a. “The ‘gist’ of conspiracy ‘lies in the illegal agreement’; once the

agreement is formed, the ‘crime is complete.’ ” People v Seewald, 499 Mich 111, 117; 879

NW2d 237 (2016) (citations omitted). “Michigan law requires no proof of an overt act taken in

furtherance of the conspiracy. And, because the crime is complete upon the conspirators’

agreement, the prosecution need not prove that ‘the purpose contemplated by the unlawful

agreement was accomplished.’ ” Id. (citation omitted). Again, there is absolutely no overlap

between the elements of accessory after the fact and conspiracy. Thus, accessory after the fact is

clearly not a lesser included offense of conspiracy to commit armed robbery. Jones, 497 Mich at

164. Because accessory after the fact is not a lesser included offense of any of the crimes

defendant was charged with, the trial court correctly rejected defendant’s request for an

instruction on the separate crime of accessory after the fact.7

Defendant nonetheless maintains that the trial court should have read the instruction and

that the failure to do so deprived defendant of a defense. In Perry, our Supreme Court was faced

with a similar situation. There, the defendant was charged with murder, and although he was not

charged as being an accessory after the fact, requested an instruction on that offense as well.

7

Perhaps a simpler way to look at the crimes is in terms of the timeline of events in this case.

Defendant committed the crime of conspiracy when he agreed with Burton to commit the

robbery. Then, defendant and Burton actually followed through on this plan, committing the

robbery and murder. After the robbery and murder were committed, defendant may well have

committed another crime, that of being an accessory after the fact, by rendering assistance to

Burton in an effort to avoid detection or arrest. Each of these three steps, however, is its own

distinct criminal act; each could have been committed on its own. The prosecutor simply

decided not to charge defendant with the crime he may have committed in the third and final step

of the process.

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Perry, 460 Mich at 56. The trial court refused to instruct the jury on the offense of accessory

after the fact. Id. Our Supreme Court first held that accessory after the fact is not a lesser

included offense of murder. Id. at 62. The Court then rejected the notion that the instruction

would be warranted simply because the evidence would have supported a conviction on a charge

of being an accessory after the fact. Id. at 63-64. Responding to a dissenting judge of this Court,

our Supreme Court explained:

Writing in dissent, Judge BANDSTRA focused on the evidentiary support in

this record for the conclusion that defendant was, indeed, an accessory after the

fact. In this vein, he correctly noted that a jury is free to believe or disbelieve, in

whole or in part, any of the evidence presented. People v Fuller, 395 Mich 451,

453; 236 NW2d 58 (1975). However, evidentiary support for a cognate

instruction is not alone sufficient to require that the instruction be given. As

explained in [People v ]Hendricks[, 446 Mich 435; 521 NW2d 546 (1994)] and

[People v ]Bailey[, 451 Mich 657; 549 NW2d 325 (1996) amended, reh den 453

Mich 1204 (1996)], the putative cognate offense also must be of the same class or

category. Thus, while Judge BANDSTRA is correct that “[i]f defendant had been

originally charged as an accessory after the fact in this case, the evidence adduced

at trial would clearly have supported a guilty verdict with regard to that charge,” it

does not follow that “[d]efendant was entitled to the requested instruction

regarding accessory after the fact, and the trial court erred in failing to grant that

request.” [People v Perry,] 218 Mich App [520, 551-552; 554 NW2d 362 (1996)

(BANDSTRA, J., dissenting)]. [Perry, 460 Mich at 63-64.]

It is certainly true that where the evidence supports a particular theory or defense, and the

defense requests an instruction on that theory or defense, the instruction must be given. People v

Rodriguez, 463 Mich 466, 472-473; 620 NW2d 13 (2000). But what defendant requested was an

instruction not on a theory or defense, but rather, on a crime that he was not charged with having

committed. Defendant is entitled to an instruction on a particular offense only if two

requirements are satisfied: (1) the evidence rationally supports a conclusion that the offense was

committed, and (2) the offense is a lesser included offense of one charged by the prosecutor.

Jones, 497 Mich at 164-165. Defendant requested an instruction on an offense that, while

perhaps rationally supported by the evidence, is not a lesser included offense of any crime

charged by the prosecutor. Thus, as was the case in Perry, defendant was not entitled to have the

jury instructed on the offense of accessory after the fact. Id.; Perry, 460 Mich at 63-64.

Further, defendant was not deprived of a substantial defense. As explained, defendant

was charged with murder, armed robbery, and conspiracy to commit armed robbery. He was free

to, and did, defend against these charges. What he was not free to do was to force the prosecutor

to charge him with other, lesser offenses that he may have also committed, and then hope that the

jury might choose to convict him only of the lesser offense or offenses as a matter of leniency.

“It is axiomatic that the power to determine whether to charge a defendant and what charge

should be brought is an executive power, which vests exclusively in the prosecutor.” People v

Smith, 496 Mich 133, 141; 852 NW2d 127 (2014). “Prosecutors have broad discretion in

deciding under which statute they will prosecute a defendant, even if more than one statute is

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applicable.” People v Hall, 499 Mich 446, 453; 884 NW2d 561 (2016). And where crimes are

distinct, “a prosecutor does not abuse his discretion by charging the greater offense.” Id. at 460.

Affirmed.

/s/ Patrick M. Meter

/s/ David H. Sawyer

/s/ Douglas B. Shapiro

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