People of Michigan v. Tyron Jamar Husband

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

July 17, 2018

Plaintiff-Appellee,

V No. 337993

Clinton Circuit Court

TYRON JAMAR HUSBAND, LC No. 15-009444-FC

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

Tyron Jamar Husband appeals as of right his jury convictions of second-degree murder,

MCL 750.317, armed robbery, MCL 750.529, conspiracy to commit first-degree home invasion,

MCL 750.110a(2) and MCL 750.157a(a), first-degree home invasion, MCL 750.110a(2), and

three counts of possession of a firearm during the commission of a felony, MCL 750.227b. We

affirm.

Husband’s convictions arose from a home invasion that led to the shooting death of

Jauwan Gaylord Butler on September 18, 2013, in the area of St. Johns, Michigan. The

prosecution’s theory of the case was that Clifton Bell-Flourry initiated a plan to break into the

home of a person known by his girlfriend in search of large sums of money and drugs. Bell-

Flourry then persuaded James Spaythe, Joseph Seay, Cody Alvarez, Anthony Dillard, and

Husband to carry out the plan, during the course of which Husband fatally shot Butler. Bell-

Flourry, Seay, and Alvarez entered guilty pleas in the matter and testified for the prosecution.

Spaythe also testified at trial under a grant of immunity.

I. DOUBLE JEOPARDY

Husband first argues that the constitutional protections against double jeopardy should

have prevented the prosecution from retrying him after a mistrial was declared. We disagree.

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The Double Jeopardy Clauses of our federal and state Constitutions1 prohibit a criminal

defendant from being placed twice in jeopardy for a single offense. People v Booker (After

Remand), 208 Mich App 163, 172; 527 NW2d 42 (1994), citing People v Dawson, 431 Mich

234, 250; 427 NW2d 886 (1988). However, the Double Jeopardy Clauses will not typically

serve as a bar to retrial when a defendant requests, or consent to, a mistrial; under those

circumstances, the defendant’s actions are viewed as having waived a resulting double jeopardy

claim. Dawson, 431 Mich at 253. On the other hand, “[w]here a mistrial results from apparently

innocent or even negligent prosecutorial error, or from factors beyond his control, the public

interest in allowing a retrial outweighs the double jeopardy bar.” Id. at 257 (citation omitted).

Before the first trial, the prosecution stipulated that it would not introduce any evidence

that Husband had been previously convicted of offenses involving weapons, had been known to

carry a firearm, or had been involved in prior shootings or assaults. But despite the stipulation,

the prosecution inadvertently elicited prohibited testimony from Spaythe. Spaythe testified that

Husband was carrying a .40-caliber firearm during the incident and that he, Spaythe, heard

gunshots he associated with a .40-caliber firearm. The group fled the property, and Spaythe was

unsure if anyone had been shot. After Spaythe testified that he learned from a later newscast that

someone had died, the following exchange took place:

Q. Did you ever hear anything about this individual [Husband] shooting

anybody?

A. Not off—not off hand, not until later on down the line.

Q. What did you hear?

A. That he had shot a few other people.

Defense counsel immediately objected, and a bench conference ensued, after which the trial

court instructed the jury to disregard the quoted testimony and excused the jury for the day.

Defense counsel then asked for a mistrial, but emphasized that he did not believe that the

prosecution’s error was intentional. The prosecution similarly explained that the question

pertained to what Spaythe had heard concerning the September 2013 shooting and was not

designed to prompt inadmissible testimony. The trial court concurred with the parties, stating, “I

don’t believe that the testimony was deliberately elicited.” When proceedings resumed the next

day, defense counsel confirmed that he had discussed the matter with Husband and explained to

Husband that jeopardy did not bar retrial. According to defense counsel, Husband completely

understood that “we would have to have another trial.” The trial court stated that it had “no

doubt that [the prosecution’s] inquiry was not an effort to goad [Husband] into requesting

1

US Const, Am V; Const 1963, art 1, § 15. “The federal provision applies to the states through

the Fourteenth Amendment[, US Const, Am XIV].” People v Dawson, 431 Mich 234, 236 n 2;

427 NW2d 886 (1988).

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mistrial,” then concluded, “it is appropriate to grant the request for a mistrial and . . . we will

retry this case.”

Defense counsel’s clear agreement that the prosecution inadvertently elicited the

offending testimony obviated the trial court’s need to decide whether the prosecution had

intended to procure a mistrial. Indeed, counsel’s assurance that there was no issue of intentional

misconduct and agreement that retrial was proper affirmatively waived any double jeopardy

arguments against retrial, thus extinguishing appellate objections. See People v Carter, 462

Mich 206, 215; 612 NW2d 144 (2000) (“One who waives his rights under a rule may not then

seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished

any error.”) (quotation marks and citation omitted).

Even if this issue had not been affirmatively waived by defense counsel, it would not

warrant appellate relief. Unpreserved claims of error are reviewed for plain error affecting

substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In this case,

the trial court offered detailed findings and conclusions of its own consistent with the parties’

shared position that the prosecution had not intentionally violated the stipulation concerning

prohibited evidence. The context of the prosecution’s inquiry well supports this conclusion, and

the trial court did not plainly err by finding that the prosecution did not act with the intention of

provoking Husband’s request for a mistrial. As such, the constitutional protections against

double jeopardy posed no bar to retrial.

II. HEARSAY

Husband also argues that he was denied a fair trial because the police investigator,

Undersheriff Frederick Sandberg, improperly testified that Bell-Flourry had named Husband as

part of the criminal scheme. We disagree.

The decision whether to admit evidence is within the trial court’s discretion and is

reviewed on appeal for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d

607 (1999). As Husband concedes, however, the defense did not object to the challenged

testimony, leaving this issue unpreserved for appellate review. People v Knox, 469 Mich 502,

508; 674 NW2d 366 (2004). Accordingly, our review is for plain error affecting Husband’s

substantial rights. Carines, 460 Mich at 763. An error is plain if it is clear or obvious, and an

error affects substantial rights if it affects the outcome of the proceedings. Id. Where plain error

is shown, the reviewing court should reverse only when the defendant is actually innocent or the

error “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial proceedings

independent of the defendant’s innocence.” Id. (quotation marks and citation omitted; first

alteration in original).

At the second trial, Sandberg described his investigation of the shooting, including his

interviews with Bell-Flourry. Sandberg explained that Bell-Flourry identified four people

involved in the crime: Husband, Spaythe, and two people Bell-Flourry knew only as Anthony

and Joey. Based upon this information, Sandberg questioned Spaythe, who was incarcerated in

Jackson County at the time. On appeal, Husband characterizes Sandberg’s testimony relating

Bell-Flourry’s identification of suspects as inadmissible hearsay. In particular, Husband

contends that Sandberg’s testimony was inadmissible as a prior consistent statement under MRE

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801(d)(1)(B). In passing, he also asserts that the testimony would not qualify for admission

under the “catchall” exception of MRE 803(24).

Testimony describing a person’s unsworn, out-of-court assertions offered to prove the

truth of the matter asserted is referred to as hearsay and is generally inadmissible, subject to

several exemptions and exceptions as provided by the rules of evidence. MRE 801 through

MRE 804; People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013). Prior consistent

statements of a witness appearing at trial are exempted from the definition of hearsay when

offered not to prove the matters asserted, but to rebut a charge of recent fabrication. MRE

801(d)(1)(B); People v Jones, 240 Mich App 704, 706-707; 613 NW2d 411 (2000). Where the

proffered hearsay does not qualify for admission under a specific exception, it may still be

admissible under the residual exception set forth in MRE 803(24), which permits admission of

hearsay testimony if four requirements are met:

(1) it must have circumstantial guarantees of trustworthiness equal to the

categorical exceptions, (2) it must tend to establish a material fact, (3) it must be

the most probative evidence on that fact that the offering party could produce

through reasonable efforts, and (4) its admission must serve the interests of

justice. [People v Katt, 468 Mich 272, 279; 662 NW2d 12 (2003).]

In addition, the proponent of evidence offered under MRE 803(24) must give the opposing party

advance notice that the evidence will be introduced. Id.

Before asking Sandberg to repeat the names of the individuals implicated by Bell-

Flourry, the prosecution asked “what information” was obtained from Bell-Flourry that led

Sandberg “to continue down the road with this case[.]” After the names were elicited, the

prosecution continued the examination by asking Sandberg what he did with the information.

Thus, it appears that the challenged testimony was elicited to explain why Sandberg turned his

attention to Husband and Spaythe. Because this testimony was offered to provide context for

Sandberg’s investigative decisions, rather than to prove the truth of Bell-Flourry’s assertions, it

is, by definition, not hearsay. Musser, 494 Mich at 350. Accordingly, its admissibility does not

turn on whether it meets the requirements for admission under MRE 801(d)(1)(B) or MRE

803(24), and Husband’s contention that the testimony was improperly admitted under those

exceptions lacks merit.

III. BOLSTERING OF PROSECUTION WITNESSES

Lastly, Husband argues that Sandberg improperly vouched for the credibility of the

prosecution’s witnesses. Again, because the defense did not object to Sandberg’s testimony on

this ground, this issue is unpreserved and we review for plain error affecting substantial rights.

Knox, 469 Mich at 508; Carines, 460 Mich at 763.

In the context of explaining the progression of his investigation, Sandberg testified as

follows:

A. . . . I think [Spaythe] was probably the most forthcoming on an

interview we did [on] July 15[] of 2015 at the Saginaw facility . . . .

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Q. All right. Now has [sic] Mr. Spaythe’s statements to you been even

remotely consistent from beginning to end with his interviews?

A. No.

Q. There are some consistencies however, are there not?

A. Well, the big picture always stayed the same for us.

Q. And what was the big picture?

A. Well, the big picture [w]as that there was this plan to go up to Saint

Johns and get into a house and rob a heroin drug dealer for large amounts of cash

and or drugs, and things went bad and certain people—right from the beginning—

were part of that plan, and—

Q. And who were those people that were—

A. —at least two guns were mentioned right from the beginning all the

way through, so.

Q. And who were those people who were part of the plan right from the

beginning?

A. Mr. Husband, Mr. Spaythe, Cody, and . . . Joey and Anthony.

Q. All right. And I assume Mr. Bell-Flourry?

A. As the planner . . . .

With respect to his interviews with Alvarez, Sandberg stated that Alvarez “wasn’t truthful at

first” and initially denied knowledge of the shooting. But according to Sandberg, Alvarez later

admitted his involvement and provided further details concerning the incident, though only after

negotiating a plea and sentencing agreement. On appeal, Husband contends that this

testimony—as well as Sandberg’s reference to Bell-Flourry’s prior consistent statement—

improperly bolstered the witnesses’ credibility. We disagree.

“It is generally improper for a witness to comment or provide an opinion on the

credibility of another witness, because credibility matters are to be determined by the jury.”

People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). However, we cannot conclude

on the record before us that Sandberg’s statements improperly vouched for the credibility of the

prosecution’s witnesses. Sandberg unequivocally testified that the details of the events described

by Spaythe were inconsistent and that Alvarez was uncooperative until after reaching a plea deal

with the prosecution. Under these circumstances, we will not construe Sandberg’s statements

concerning the varying degrees of cooperation he received from Spaythe and Alvarez as an

attempt to improperly bolster their credibility. Indeed, by relating that the witnesses were

inconsistent in their statements, Sandberg’s testimony discredits Spaythe and Alvarez just as

much as it credits them. And for the reasons explained earlier, we infer that Sandberg’s

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testimony repeating Bell-Flourry’s identification of the individuals who executed his plan was

elicited for the proper purpose of explaining the course of the investigation.

Further, even if we found error in the challenged testimony, the likely impact of the

alleged bolstering was too slight to warrant disturbing the result. Carines, 460 Mich at 763

(explaining that third element of plain error review “requires a showing of prejudice, i.e., that the

error affected the outcome of the lower court proceedings”). See also People v Mosko, 441 Mich

496, 503; 495 NW2d 534 (1992) (a criminal defendant is entitled to a fair trial, not necessarily a

perfect one). Sandberg did not explicitly opine regarding the credibility of any of the

prosecution’s witnesses. To the contrary, he agreed that most of the witnesses provided different

statements at various stages of the investigation. At most, the jurors could infer that Sandberg

credited some statements made by the witnesses more than others. The impact of such an

inference is insignificant when measured against the balance of the evidence presented against

Husband. Four coconspirators placed Husband at the scene, armed with a .40-caliber gun, and

two individuals incarcerated with Husband testified about his self-implicating discussions with

them. Additionally, an expert in firearms and tool marking indicated that the bullets recovered

from Butler’s body during an autopsy were consistent with either .40-caliber or 10-mm

ammunition. Sandberg also discovered during the course of the investigation that a cellphone

associated with Husband had received or made outgoing calls using a cellphone tower close to

the scene shortly before the shooting occurred. Thus, it is improbable that a minor inference of

witness bolstering was outcome determinative.

Moreover, the minimal risk that the jury would improperly rely upon an inference of

witness bolstering was further alleviated by the trial court’s final instructions. Importantly,

“[j]urors 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). Here, the trial court clearly

instructed the jury that it was responsible for determining issues of credibility and identified

appropriate factors to be considered in evaluating witness credibility. The trial court also

provided an additional cautionary instruction concerning the testimony offered by Bell-Flourry,

Spaythe, and Alvarez:

You should examine an accomplice’s testimony closely and be very

careful about accepting it. You may think about whether the accomplice’s

testimony is supported by other evidence, because then it may be more

reliable. . . . When you decide whether you believe an accomplice, consider the

following: Was the accomplice’s testimony falsely slanted to make the Defendant

seem guilty because of the . . . accomplice’s own interests, biases, or for some

other reason? Has the accomplice been offered a reward or been promised

anything that might lead him to give false testimony? . . . In general, you should

consider an accomplice’s testimony more cautiously than you would of an

ordinary witness. You should be sure you have examined it closely before you

base a conviction on it.

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The trial court thus instructed the jury that it was solely responsible for determining the facts,

including the credibility of the witnesses, and to apply special scrutiny to the testimony of

accomplices. The trial court’s instructions were sufficient to protect Husband’s substantial

rights.

Affirmed.

/s/ Amy Ronayne Krause

/s/ Elizabeth L. Gleicher

/s/ Anica Letica

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