People of Michigan v. Troy Desean Johnson

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

October 16, 2018

Plaintiff-Appellee,

v No. 337999

Jackson Circuit Court

TROY DESEAN JOHNSON, LC No. 15-000816-FC

Defendant-Appellant.

Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

A jury convicted defendant, Troy Desean Johnson, of voluntary manslaughter, MCL

750.321, and carrying a firearm during the commission of a felony (felony-firearm), MCL

750.227b. The trial court sentenced Johnson to 10 to 15 years’ imprisonment for the

manslaughter conviction and two years’ imprisonment for the felony-firearm conviction, to run

consecutively. Johnson appeals as of right. We affirm Johnson’s convictions, but vacate the

sentence imposed for his manslaughter conviction and remand for resentencing consistent with

this opinion.

I. FACTUAL BACKGROUND

On the evening of February 17, 2015, Officer Nathan Belen was dispatched to the

intersection of First Street and Randolph Street in Jackson City, Michigan, in response to a report

of shots fired. Officer Belen spotted an SUV stopped on a snowbank on the south side of

Randolph Street, approximately two houses west of the intersection. When he approached the

SUV, he saw that someone was in the driver’s seat with his head tilted down and that the engine

was still revving, as if the driver was stepping on the accelerator. Officer Belen also noticed that

the backseat window on the driver’s side of the SUV, which had dark tinted glass, had been

shattered. After another officer broke the front driver’s side window with his flashlight in order

to render aid, the officers saw that the driver had a gunshot wound to his forehead. According to

Detective Holly Rose, it appeared that the bullet entered the vehicle through the rear window on

the driver’s side and that the victim’s head was likely turned to look over his left shoulder at the

time he was shot. Dark tinted glass, consistent with the shattered glass from the SUV’s rear

window, was discovered in the street in front of a home located approximately two houses east

of the intersection.

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The prosecution’s case relied heavily on the testimony of Amber Rumsey, who was

Johnson’s girlfriend at the time of the shooting. Rumsey had previously testified against

Johnson1 and, at the time of the current trial, was charged with perjury and being an accessory

after the fact. Rumsey recalled that on the evening of February 17, 2015, she, defendant, and her

minor son, TR, were eating dinner in her home on First Street, approximately two houses south

of Randolph Street. During their meal, TR’s father began “harassing” them, repeatedly calling

Rumsey, banging on the apartment door, and honking his car horn from outside. Johnson

became agitated and paced the room. When the banging and honking ceased, Rumsey went to

her bedroom window to check if TR’s father had left. Johnson was gone when she reentered the

living room. Moments later, Rumsey heard four or five gunshots. According to Rumsey, she

then ran out her front door and saw Johnson at the corner of First Street and Randolph Street,

shooting toward an SUV driving through the intersection.2 Rumsey testified that Johnson then

turned around and walked away. Rumsey picked Johnson up in her car and drove him and TR to

an apartment of Johnson’s friend.

Rumsey explained that she did not call the police to report the crime because she was

afraid of going to jail. Rumsey also indicated that she was frightened of Johnson because, a few

days after the shooting, Johnson told her that “his blood brothers in Detroit knew [she] was the

only person that knew.”

The following weekend, Rumsey disclosed the events surrounding the shooting to her

friend, who then reported the crime to the police. When Rumsey first talked to Detective Rose,

she denied seeing Johnson shoot the gun. A few days later, Rumsey and TR were called to the

police station again. Rumsey directed TR not to tell the police that she drove Johnson after the

shooting, and Rumsey again denied that she witnessed Johnson shoot the gun. Moreover, on at

least three occasions, Rumsey testified under oath that she did not see Johnson shoot a gun. In

fact, Rumsey did not disclose the truth until a week before the start of Johnson’s third trial, after

she had been charged with perjury in connection with her previous testimony.

Rumsey testified that she lied and told TR to lie to protect them, explaining that she had

been scared of Johnson since the day of the shooting. Rumsey admitted that she continued a

relationship with Johnson for two to three weeks after the incident, but explained that she had no

choice because Johnson “basically threatened [her] when he said his blood brothers know [she

was] the only person that knows.” However, she admitted that she spoke with Johnson over the

1

Johnson was tried before a jury three times on the same charges. The first jury trial resulted in

a mistrial after the prosecution introduced evidence of Johnson’s prior incarceration. The second

jury trial resulted in a mistrial because of a deadlocked jury. The third jury trial resulted in

Johnson’s acquittal of first-degree murder and second-degree murder, and his conviction of

voluntary manslaughter and felony-firearm.

2

Rumsey testified that, although she did not see a gun, she saw Johnson’s arm raised in the air

and the shot. TR remained in the apartment at the time of the shooting and did not see the

shooter.

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phone while Johnson was in jail and bought him phone cards so that he was able to call her.

Rumsey also testified that she received threatening phone calls orchestrated by Johnson.

TR testified pursuant to a grant of immunity. Like Rumsey, TR recalled that his father

drove to Rumsey’s home on the night in question and began honking the horn of his vehicle,

which caused Johnson to pace around the living room in apparent agitation. When TR entered

the kitchen, he saw Johnson pulling a black ski mask over his head. According to TR, Johnson

instructed him to return to the living room before Johnson left through the back door. TR further

testified that Rumsey went onto the front porch after they heard several loud popping sounds, but

he remained inside. TR recalled going to an apartment with Rumsey and Johnson after the

shooting for approximately two hours before returning home. TR testified that he had never

disclosed that Rumsey had driven Johnson away after the incident because he feared that his

mother would go to jail and that Johnson’s friends would harm them. TR explained, over

defense counsel’s objection, that his fear of Johnson’s friends derived from Johnson’s gang

involvement.

In closing arguments, the prosecution presented a transferred intent theory, suggesting

that Johnson left Rumsey’s home to confront TR’s father, but mistakenly shot the victim, with

whom Johnson had no apparent connection. In response, defense counsel emphasized that

Rumsey, who was the only person to identify Johnson as the shooter, admitted that she

repeatedly lied to the police and in court and, therefore, lacked credibility. Moreover, her

testimony conflicted with the physical evidence. Defense counsel also noted that the victim had

six small bags of marijuana in his possession when he was shot and was under investigation by

the Jackson Narcotics Enforcement Team, which suggested that the shooting may have been

drug related. And defense counsel argued that the police did not adequately investigate an

alternative suspect. After deliberating for two days, the jury found Johnson not guilty of first-

degree premeditated murder and second-degree murder, but guilty of voluntary manslaughter and

felony-firearm. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

Johnson first argues that there was insufficient evidence to establish that he was guilty of

a homicide. We disagree.

On appeal, a claim of insufficient evidence is reviewed de novo. People v Meissner, 294

Mich App 438, 452; 812 NW2d 37 (2011). This Court reviews “the evidence in the light most

favorable to the prosecution” and determines “whether a rational trier of fact could find the

defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421; 646

NW2d 158 (2002). “It is for the trier of fact, not the appellate court, to determine what

inferences may be fairly drawn from the evidence and to determine the weight to be accorded

those inferences.” Id. at 428. “This Court will not interfere with the jury’s role of determining

the weight of the evidence or deciding the credibility of the witnesses.” People v Fletcher, 260

Mich App 531, 561; 679 NW2d 127 (2004).

In order to prove voluntary manslaughter, the prosecution must establish that “the

defendant killed in the heat of passion, the passion was caused by adequate provocation, and

there was not a lapse of time during which a reasonable person could control his passions.”

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People v Mendoza, 468 Mich 527, 535; 664 NW2d 685 (2003). In addition, “[i]dentity is an

element of every offense.” People v Bass, 317 Mich App 241, 263; 893 NW2d 140 (2016)

(quotation marks and citation omitted). On appeal, Johnson contends that there was insufficient

evidence that he was the person who killed the victim.

Johnson’s argument is largely based on his contention that Rumsey was an unreliable

witness and that her testimony was incredible. However, “[t]he credibility of identification

testimony is a question for the trier of fact that we do not resolve anew.” People v Davis, 241

Mich App 697, 700; 617 NW2d 381 (2000). Furthermore, this Court has found that a positive

identification of the defendant is generally sufficient evidence to support a conviction, id., and, in

this case, Johnson’s conviction likely turned on Rumsey’s testimony identifying Johnson as the

shooter.

Johnson also argues that the physical evidence from the scene made Rumsey’s testimony

implausible. According to Rumsey, Johnson shot at the victim from the corner of Randolph

Street and First Street, while the SUV was traveling westbound through the intersection. But

glass shards that matched the tint from the backseat driver’s side window where the bullet

entered the SUV were found in the street, several houses east of the intersection. Thus,

according to Johnson, if he had been at the corner shooting at the vehicle as it passed traveling

westbound, there would have been no possibility that the glass from the shattered window could

have been found in the street east of the intersection. However, the jury—presented with the

same evidence and argument—concluded otherwise, and it is up to the jury to determine what

weight to give the evidence. Hardiman, 466 Mich at 428.

“Moreover, the prosecution need not disprove all theories consistent with defendant’s

innocence; it need only introduce sufficient evidence to convince a reasonable jury of its theory

of guilt despite the contradictory theory or evidence a defendant may offer.” People v

Solmonson, 261 Mich App 657, 662-663; 683 NW2d 761 (2004). Here, the jury may have

believed that Rumsey saw Johnson shoot at the SUV, but discredited her testimony regarding

where Johnson was standing at the time. Alternatively, the jury may have concluded that the

tinted glass shards found east of the intersection did not fall from the victim’s SUV and, thus,

were not indicative of where the SUV was positioned when it was struck by the bullet. In any

event, the jury was free to accept Rumsey’s testimony indicating that she saw Johnson shoot at

the SUV and infer that Johnson fired the shot that fatally wounded the victim. Accordingly,

there was sufficient evidence to establish that Johnson shot and killed the victim. See Davis, 241

Mich App at 700.

III. EVIDENTIARY RULINGS

Next, Johnson argues that the trial court violated his right to due process when it admitted

prejudicial evidence of threatening phone calls and his alleged gang affiliation over defense

counsel’s objections. We disagree.

Although defense counsel objected to admission of portions of the challenged evidence,

the objections failed to preserve this issue for review because the grounds asserted below differ

from those pursued on appeal. See People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67

(2001). We review unpreserved claims of evidentiary error under the three-prong test for plain

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error. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). “First, there must be an error;

second, the error must be plain (i.e., clear or obvious); and third, the error must affect substantial

rights (i.e., there must be a showing that the error was outcome determinative).” Id.

With regard to the evidence of threatening phone calls, Rumsey testified:

Q. All right. And so this whole time he’s in jail pending this trial you’re

still talking to him on the phone, providing him ways so that he can call you,

correct?

A. Twice I took him a phone card.

Q. All right. And at this point in time you’re so scared of this man that

you’re giving him money to call you, is that what you’re saying?

A. Yes. He calls me regardless. I have so many long distance numbers or

out of state numbers from him having people call me constantly.

Q. Ma’am, I’m going to object—

[Defense Counsel]: Judge, I’m going to ask to strike that. There’s no way

to prove that she can say that other people are calling her and that he was the one

telling them to call her.

The Witness: I have text messages—

The Court: Hold on.

The Witness: —from people saying he did.

The Court: Ma’am, don’t.

[Defense Counsel]: The question was and she answered it, you were still

scared even though you were providing him means? And she said yes.

The Court: Yes.

[Defense Counsel]: Thank you.

Generally, a defendant’s threats against a witness are admissible to demonstrate

consciousness of guilt. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996). This is true,

however, only when there is evidence connecting the defendant to the threats. People v Walker,

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150 Mich App 597, 603; 389 NW2d 704 (1985).3 Evidence that a witness has been threatened

may also be admissible to explain the witness’s prior inconsistent statements, as such evidence

pertains to the witness’s credibility. People v Johnson, 174 Mich App 108, 112; 435 NW2d 465

(1989). When offered for that purpose, it is unnecessary that the threat be made by the

defendant. See People v Clark, 124 Mich App 410, 412; 335 NW2d 53 (1983) (involving threat

made by the defendant’s brother). See also M Crim JI 3.6 (permitting consideration of

“promises, threats, suggestions, or other influences” in assessing witness credibility).

In this case, Rumsey alleged that she felt threatened by several anonymous callers

allegedly calling at Johnson’s direction. Although Rumsey tenuously connected Johnson to

these unspecified threats, the threats were not offered as proof of Johnson’s consciousness of

guilt. Rather, Rumsey’s testimony was offered for the purpose of allowing the jury to assess her

credibility, in that her testimony explained her inconsistent stories. Accordingly, it was

unnecessary to prove or disprove that Johnson was responsible for the anonymous threatening

phone calls and, as such, Rumsey’s testimony was admissible for the limited purpose of

explaining her inconsistent stories. See Clark, 124 Mich App at 412.

Johnson also alleges that the trial court erred in admitting the following testimony offered

by TR after he acknowledged that he had not previously testified about Rumsey’s involvement

after the shooting:

Q. Why didn’t you talk about that before, [TR]?

A. Because I was scared.

Q. What are you scared of?

A. I was scared of if I told you guys what would happen, that I would

never see my mom again and what would happen if [Johnson]’s friends and

people found out about it.

Q. What makes you say you’re scared of what might happen if

[Johnson]’s friends might find out about it?

A. Because we—he had told us that he was in like some type of gang—

[Defense Counsel]: Objection, your Honor.

The Court: On—based on what?

3

Although cases decided before November 1, 1990, are not binding precedent under MCR

7.215(J)(1), they may be considered persuasive authority. People v Vandenberg, 307 Mich App

57, 66 n 2; 859 NW2d 229 (2014).

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[Defense Counsel]: Based on the fact that it’s more prejudicial than

anything else. I mean there’s been no independent evidence of that.

The Court: Go ahead.

[The Prosecution]: Thank you.

Q. [TR], let me ask you the question again, okay?

A. Mm-hmm.

Q. What was it that made you afraid . . . of [Johnson] and his friends?

A. He had told us that he was in a gang and most of his friends—well

some of his friends and some of his family knew also where we lived.

Similarly, Rumsey testified that she felt threatened by Johnson’s references to his “blood

brothers.”

Evidence concerning the defendant’s character is inadmissible when offered to prove

action in conformity with that character trait. MRE 404(a); People v Bynum, 496 Mich 610, 624-

625; 852 NW2d 570 (2014). However, evidence of other crimes, wrongs, or acts may 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 . . . .” MRE 404(b)(1). People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114

(1993), amended by 445 Mich 1205 (1994), sets forth the test for the admission of other-acts

evidence under MRE 404(b): (1) the evidence must be offered for a proper purpose under MRE

404(b); (2) the evidence must be relevant; and (3) the probative value of the evidence must not

be substantially outweighed by unfair prejudice. If the other-acts evidence is admitted, the trial

court may provide a limiting instruction to lessen the risk of prejudice. Id. Relevant evidence is

“evidence that is material (related to any fact that is of consequence to the action) and has

probative force (any tendency to make the existence of a fact of consequence more or less

probable than it would be without the evidence).” People v Sabin (After Remand), 463 Mich 43,

57; 614 NW2d 888 (2000). Evidence is inadmissible under MRE 404 “if it is relevant solely to

the defendant’s character or criminal propensity.” People v Mardlin, 487 Mich 609, 616; 790

NW2d 607 (2010).

Here, TR and Rumsey did not refer to Johnson’s alleged gang affiliation to imply that he

acted as a gang member would be expected to act or to otherwise suggest that he had a

propensity to commit homicides. Instead, they testified that Johnson’s self-proclaimed gang

affiliation left them fearful to accurately relay the events from the night of the shooting, which

was why they previously lied to the police and the court. Although witness credibility is not

among the enumerated allowable purposes identified in MRE 404(b), the list of purposes set

forth in the evidentiary rule is nonexclusive, Sabin, 463 Mich at 56, and it is well-settled that

witness credibility is material because it impacts the weight a fact-finder will afford the witness’s

testimony, People v Mills, 450 Mich 61, 72; 537 NW2d 909 (1995), mod by 450 Mich 1212

(1995). Accordingly, because testimony regarding an individual’s gang affiliation is relevant

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when it sheds light on a witness’s bias or credibility, see United States v Abel, 469 US 45, 52;

105 S Ct 465; 83 L Ed 2d 450 (1984), and the gang-affiliation evidence was not offered as

propensity evidence in this case, the challenged evidence satisfies the first and second prongs of

the VanderVliet test.

Thus, the admissibility of the gang-affiliation evidence rests on the third prong of the

VanderVliet test: whether the probative value of the evidence was substantially outweighed by

the risk of unfair prejudice. VanderVliet, 444 Mich at 55. Here, Johnson’s defense rested on the

notion that he was not the person who shot the victim. Because Rumsey and TR were the only

witnesses who were able to link Johnson to the shooting, their credibility was essential to the

prosecution’s case. Both witnesses admitted that they were untruthful about the relevant events

in the past, leaving their credibility indisputably in question. Accordingly, the reason for their

prior untruthful statements had significant probative value in determining whether to credit their

inconsistent testimony. While we recognize that evidence of gang membership undoubtedly

presents a risk of an improper character-to-conduct inference, we cannot conclude that the risk of

unfair prejudice substantially outweighed the probative value of the evidence in this case. See

Bass, 317 Mich App at 259 (“MRE 403 does not prohibit prejudicial evidence; only evidence

that is unfairly so.”) (quotation marks and citation omitted). Accordingly, the trial court did

plainly err by allowing Rumsey and TR to refer to Johnson’s alleged gang affiliation in

explaining why they were fearful to implicate Johnson in the shooting.

IV. SENTENCING

Johnson next argues that the trial court erred in calculating his offense variable (OV)

4

score and by imposing the maximum sentence allowable for manslaughter. We agree.

This Court reviews the reasonableness of a sentence for an abuse of discretion. People v

Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). “Generally, an appellate court

defers to the trial court’s judgment, and if the trial court’s decision falls within the range of

principled outcomes, it has not abused its discretion.” People v Cross, 281 Mich App 737, 739;

760 NW2d 314 (2008). In considering an alleged scoring error, the trial court’s “factual

determinations are reviewed for clear error and must be supported by a preponderance of the

evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as

found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of

the facts to the law, is a question of statutory interpretation, which an appellate court reviews de

novo.” Id.

During sentencing, the trial court determined that Johnson’s total OV score was 105

points, placing him at OV Level 6. MCL 777.16p; MCL 777.64. Johnson’s total OV score

included 25 points for OV 6, which relates to “the offender’s intent to kill or injure another

4

Although Johnson’s scoring challenge is relevant to the balance of his claim of error regarding

his sentencing, he acknowledges that the scoring error would not serve as an independent basis

for granting appellate relief. See People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).

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individual,” and directs the trial court to score the variable, in pertinent part, as follows:

Score offense variable 6 by determining which of the following apply and by

assigning the number of points attributable to the one that has the highest number

of points:

* * *

(b) The offender had unpremeditated intent to kill, the intent to do great

bodily harm, or created a very high risk of death or great bodily harm knowing

that death or great bodily harm was the probable result ………………. 25 points

(c) The offender had intent to injure or the killing was committed in an

extreme emotional state caused by an adequate provocation and before a

reasonable amount of time elapsed for the offender to calm or there was gross

negligence amounting to an unreasonable disregard for life …………… 10 points

[MCL 777.36(1)(b) and (c).]

Pursuant to MCL 777.36(2)(a), “[t]he sentencing judge shall score this variable consistent with a

jury verdict unless the judge has information that was not presented to the jury.”

Rather than rely on Johnson’s manslaughter verdict, the trial court looked to the facts of

the case to determine the appropriate number of points to assign to OV 6. The trial court

explained that, based on the facts, the act was not premeditated, but “there was clearly intent to

do great bodily harm or [to] create a very high risk of death or great bodily injury knowing that

that was the probable result.” Accordingly, the trial court did not reduce the points assessed

under OV 6 to 10 points. Taking Johnson’s prior record variable score of 32 points into account,

which he does not contest on appeal, the sentencing guidelines recommended a minimum

sentence of 50 to 100 months’ imprisonment for Johnson’s manslaughter conviction. MCL

777.64. The trial court imposed a departure sentence of 10 to 15 years’ imprisonment—the

maximum sentence permitted under MCL 769.34(2)(b).5

Johnson first argues that the trial court erred in failing to score OV 6 at 10 points. We

agree. There is no indication in the record that the trial court relied on information that was not

presented to the jury when it decided to assess 25 points for OV 6 on the basis of Johnson’s

alleged intent to do great bodily harm or create a high risk of death or great bodily injury. As

such, MCL 777.36(2)(a) mandated that the trial court was required to assess only 10 points for

OV 6, consistent with the jury’s verdict. The trial court erred by failing to do so. However, as

Johnson concedes, this adjustment would not have affected his OV level or the minimum

sentence range recommended by the guidelines. Therefore, the trial court’s scoring error does

5

The trial court also imposed a consecutive, two-year term of imprisonment for Johnson’s

felony-firearm conviction, which he does not challenge on appeal.

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not serve as an independent basis for resentencing. See People v Carpenter, 322 Mich App 523,

532; 912 NW2d 579 (2018),6 citing People v Francisco, 474 Mich 82, 89; 711 NW2d 44 (2006).

Johnson next argues that the trial court abused its discretion in sentencing Johnson to the

maximum allowable term of imprisonment for manslaughter. We agree.

Although the sentencing guidelines are only advisory, the trial court must consult them in

making a sentencing determination. Steanhouse, 500 Mich at 470. The test to determine the

reasonableness of a sentence is “whether the sentence is proportionate to the seriousness of the

matter, not whether it departs from or adheres to the guidelines’ recommended range.” Id. at 475

(quotation marks and citation omitted). Under all circumstances, the sentence imposed must be

“proportionate to the seriousness of the circumstances surrounding the offense and the offender.”

Id. at 460 (quotation marks and citation omitted).

Johnson cites People v Fortson, 202 Mich App 13; 507 NW2d 763 (1993), in support of

his argument that the trial court abused its discretion in sentencing him on the basis of the trial

court’s belief that Johnson was guilty of second-degree murder. In Fortson, this Court vacated

the defendant’s sentence and remanded because “the trial court erred in making an independent

finding that defendant was guilty of first-degree premeditated murder as a reason for justifying

the sentence imposed, in direct contravention of the jury’s verdict of voluntary manslaughter.”

Id. at 21. Johnson also cites People v Milbourn, 435 Mich 630, 654; 461 NW2d 1 (1990), for the

proposition that a trial court is not justified in imposing the maximum term under the guidelines

where “a given case does not present a combination of circumstances placing the offender

in . . . the most serious . . . class with respect to that particular crime . . . .”

In this case, we can infer from the trial court’s assessment of 25 points for OV 6 that the

court believed that Johnson was guilty of second-degree murder, despite the jury’s acquittal with

respect to that alternative charge. Whether the trial court’s disagreement with the verdict

reached by the jury was the basis for its decision to depart from the sentencing guidelines’

recommendation and impose the maximum allowable sentence is unclear from the existing

record. In explaining the reason for the departure sentence, the trial court merely stated that it

was “individualizing” Johnson’s sentence, taking “punishment, rehabilitation prospects,

deterrence, [and] protection of society,” into consideration. While the trial court is no longer

required to articulate substantial and compelling reasons for departing from the guidelines, it is

still obligated to “justify the sentence imposed in order to facilitate appellate review, which

includes an explanation of why the sentence imposed is more proportionate to the offense and

the offender than a different sentence would have been.” People v Dixon-Bey, 321 Mich App

490, 525; 909 NW2d 458 (2017), oral argument on application gtd 501 Mich 1066 (2018)

(quotations and citation omitted). The trial court’s rote recitation of “factors” it considered in

this case does not satisfy its obligation to justify the extent of its departure, as we can discern no

basis on which these factors applied to Johnson or the sentencing offense. Accordingly, we

agree that Johnson is entitled to resentencing for his manslaughter conviction.

6

An application for leave to appeal in Carpenter was filed with the Supreme Court on February

20, 2018, and remains pending at this time.

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V. DOUBLE JEOPARDY

Johnson next argues, in his Standard 4 brief, that his trial in this case was barred by the

Double Jeopardy Clause. We disagree.

A defendant who challenges his convictions on double jeopardy grounds must preserve

the issue for appellate review by raising it before the trial court. See People v McGee, 280 Mich

App 680, 682; 761 NW2d 743 (2008). Because Johnson failed to do so, this issue is

unpreserved. “However, a double jeopardy issue presents a significant constitutional question

that will be considered on appeal regardless of whether the defendant raised it before the trial

court.” Id. We review unpreserved issues for plain error affecting substantial rights. Id.

“Reversal is appropriate only if the plain error resulted in the conviction of an innocent

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

proceedings.” Id.

The United States and Michigan Constitutions protect a defendant from twice being

placed in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15. “The

prohibition against double jeopardy provides three related protections: (1) it protects against a

second prosecution for the same offense after acquittal; (2) it protects against a second

prosecution for the same offense after conviction; and (3) it protects against multiple

punishments for the same offense.” People v Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004). As

our Michigan Supreme Court explained in People v Dawson, 431 Mich 234, 251; 427 NW2d 886

(1988): “An accused is placed in jeopardy as soon as the jury is selected and sworn. Hence,

double jeopardy protection attaches before the conclusion of the trial. Where the trial ends

before a verdict—where a mistrial is declared—the Double Jeopardy Clause may bar a retrial.”

However, the Double Jeopardy Clause does not bar all retrials. The charged offense may be

retried “where the mistrial was declared because of a hung jury” or “where the prosecutor or

judge made an innocent error.” Id. at 252. Where the defendant moves for a mistrial as a result

of innocent conduct on the part of the prosecutor, “retrial is also generally allowed, on the

premise that by making or consenting to the motion the defendant waives the double jeopardy

claim.” Id. at 253. However, the Double Jeopardy Clause bars retrial where prosecutorial

conduct was “intended to provoke the defendant into moving for a mistrial.” Id.

During Johnson’s first trial,7 the prosecution introduced video recordings of Rumsey’s

interviews with Detective Rose. After a portion of the second interview was played for the jury,

the prosecution requested that the jury be excused from the courtroom so the prosecution team

could review and redact the video, in an attempt to avoid playing any content that was

inappropriate for the jury’s consideration. However, despite redacting numerous other improper

references, the version of the video played included a statement regarding Johnson’s previous

incarceration. Johnson objected and, although the prosecution argued that the trial court could

issue a curative instruction to the jury, the trial court declared a mistrial. Despite noting that the

7

As explained earlier, Johnson’s second trial ended when the jury was unable to reach a

unanimous verdict. Johnson does not contend that the second mistrial barred a subsequent

retrial.

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prosecution held the video in its possession for a considerable time and should have edited it in

advance, the trial court found that the conduct of the prosecution was unintentional.

We conclude that Johnson has failed to establish that the trial court’s erred in this regard.

Johnson suggests that the prosecution’s case was not going well and that the prosecution was

therefore motivated to provoke Johnson into moving for a mistrial. However, the trial court was

well aware of the status of the case and was in the best position to judge the credibility of the

individuals involved when it expressly found that the prosecution’s error was “just an oversight,

nothing intentional on their part.” Because the trial court did not clearly err in finding that the

prosecution’s failure to properly redact the video was inadvertent, id. at 258, Johnson has failed

to establish plain error with respect to his double-jeopardy challenge, McGee, 280 Mich App at

682.

VI. JUROR IMPARTIALITY

Lastly, Johnson argues in his Standard 4 brief that the trial court abused its discretion in

failing to sua sponte dismiss “Juror 13” from the jury panel and that defense counsel rendered

ineffective assistance of counsel by failing to further question the juror to uncover potential bias,

failing to excuse the juror for cause, and failing to exercise a peremptory challenge against the

juror. We disagree.

A. TRIAL COURT’S FAILURE TO SUA SPONTE DISMISS A JUROR

“For an issue to be preserved for appellate review, it must be raised, addressed, and

decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741

NW2d 61 (2007). Johnson did not move to excuse Juror 13 from the jury for cause and did not

exercise a peremptory challenge against Juror 13’s continued service on the jury. Given

Johnson’s failure to object to Juror 13’s service on the jury, this issue is unpreserved for

appellate review. We review unpreserved issues for plain error affecting substantial rights.

People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

“A defendant who chooses a jury trial has an absolute right to a fair and impartial jury.

The purpose of voir dire is to elicit enough information for development of a rational basis for

excluding those who are not impartial from the jury.” People v Tyburski, 445 Mich 606, 618;

518 NW2d 441 (1994) (citations omitted). MCR 2.511(D) provides several grounds that justify

a challenge to a potential juror for cause, including that the potential juror (1) “is biased for or

against a party or attorney”; (2) “shows a state of mind that will prevent the person from

rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the

outcome should be”; or (3) “has opinions or conscientious scruples that would improperly

influence the person’s verdict[.]” MCR 6.412(D)(2) provides that “[i]f, after the examination of

any juror, the court finds that a ground for challenging a juror for cause is present, the court on

its own initiative should, or on motion of either party must, excuse the juror from the panel.”

Similarly, MCL 600.1337 states that “[w]hen the court finds that a person in attendance at court

as a juror is not qualified to serve as a juror, . . . the court shall discharge him or her from further

attendance and service as a juror.” Finally, MCL 600.1354(1) states, in pertinent part:

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Failure to comply with the provisions of this chapter shall not . . . affect

the validity of a jury verdict unless the party . . . claiming invalidity has made

timely objection and unless the party demonstrates actual prejudice to his cause

and unless the noncompliance is substantial.

“Jurors are presumptively competent and impartial, and the party alleging the disqualification

bears the burden of proving its existence.” People v Johnson, 245 Mich App 243, 256; 631

NW2d 1 (2001).

Johnson argues that Juror 13 equivocated about whether she could be impartial. The

record indicates that Juror 13 admitted that she had lied at some point in her life and that she

could therefore understand and sympathize with another person who might have done the same.

Juror 13 also stated that she “would do [her] best to be impartial,” but added that she could not

guarantee how she would view testimony offered by a witness who had previously lied or failed

to tell the entire truth. We do not agree that Juror 13’s answers provided grounds for the juror’s

removal for cause pursuant to MCR 2.511(D).8 Nor can Johnson demonstrate actual prejudice as

required by MCL 600.1354(1). Jurors are “ ‘presumed to be . . . impartial, until the contrary is

shown,’ ” and the “burden is on the defendant to establish that the juror was not impartial or at

least that the juror’s impartiality is in reasonable doubt.” People v Miller, 482 Mich 540, 550;

759 NW2d 850 (2008) (citation omitted). In this case, Johnson has offered no evidence that

Juror 13 was actually biased, other than her statement that she could not guarantee how she

would view the testimony of a witness who previously lied about the same subject. Because

Johnson has not shown that Juror 13’s impartiality is in reasonable doubt, he is not entitled to

relief on this issue.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

“The question 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). “Clear error exists if the reviewing court is left with a definite and firm conviction that

the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676

(2011). However, because Johnson failed to preserve this issue by moving for a new trial or

evidentiary hearing in the trial court, our review “is limited to mistakes apparent from the

record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).

A defendant raising a claim of ineffective assistance of counsel must establish that “(1)

counsel’s performance fell below an objective standard of reasonableness and (2) but for

counsel’s deficient performance, there is a reasonable probability that the outcome would have

been different.” Trakhtenberg, 493 Mich at 51. “Effective assistance of counsel is presumed,

8

In this case, the trial court excused several jurors for cause because they expressed bias or

indicated that they had formed a positive opinion on the facts of the case or on what the outcome

should be. The record in this case clearly demonstrates that the trial court was not reticent to

dismiss jurors for cause.

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and the defendant bears a heavy burden of proving otherwise.” Solmonson, 261 Mich App at

663. In doing so, a defendant must overcome a strong presumption that the challenged conduct

might be considered sound trial strategy. People v Knapp, 244 Mich App 361, 385-386; 624

NW2d 227 (2001). This is particularly true in the context of jury selection because counsel’s

strategic decisions are often fueled by a prospective juror’s nonverbal cues, which a transcribed

record cannot accurately convey to the reviewing court. See People v Unger, 278 Mich App

210, 258; 749 NW2d 272 (2008) (explaining this Court’s disinclination to find ineffective

assistance of counsel based upon an attorney’s failure to challenge a juror).

In this case, Johnson complains that Juror 13 equivocated about whether she could

believe a witness who had lied in the past, or whether she would automatically assume that the

person was lying again. The only witnesses to whom this scenario applied were Rumsey and

TR, the primary prosecution witnesses. Rumsey previously testified in proceedings against

Johnson, and at the time of Johnson’s trial, was charged with perjury and being an accessory

after the fact. On cross-examination, defense counsel pointed out that Rumsey had committed

perjury on nine different occasions before testifying at trial. TR, likewise, admitted that he

provided incomplete and untruthful testimony at Johnson’s earlier trials. It is apparent from the

record that defense counsel’s trial strategy involved significant criticism of TR’s and Rumsey’s

veracity as witnesses.

“[A] reviewing court must conclude that the act or omission of the defendant’s trial

counsel fell within the range of reasonable professional conduct if, after affirmatively

entertaining the range of possible reasons for the act or omission under the facts known to the

reviewing court, there might have been a legitimate strategic reason for the act or omission.”

People v Gioglio (On Remand), 296 Mich App 12, 22-23; 815 NW2d 589 (2012), vacated in part

on other grounds 493 Mich 864 (2012). Considering the facts of this case, defense counsel could

reasonably have decided not to challenge Juror 13, either for cause or peremptorily, because she

might have been likely to distrust the inconsistent testimony offered by the prosecution’s primary

witnesses. Because this is within the range of possible reasons that defense counsel may have

had for not challenging the juror’s impartiality, we cannot say that defense counsel’s failure to

challenge the juror fell outside the wide range of professionally competent assistance. Moreover,

even if defense counsel had other reasons for not challenging Juror 13, “[a] lawyer’s hunches,

based on his observations, may be as valid as any method of choosing a jury,” Unger, 278 Mich

App at 258 (quotation marks and citation omitted), and Johnson has not demonstrated that

counsel’s decision in this regard was anything other than a sound trial strategy.

VII. CONCLUSION

We affirm Johnson’s convictions, but vacate the sentence imposed for his manslaughter

conviction and remand for resentencing consistent with this opinion. We do not retain

jurisdiction.

/s/ Mark J. Cavanagh

/s/ Jane E. Markey

/s/ Anica Letica

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