If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 16, 2019

v No. 339086

Wayne Circuit Court

JOSHUA BOWMAN, LC No. 16-007980-01-FC

Defendant-Appellant.

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

PER CURIAM. 

Defendant, Joshua Bowman, appeals as of right his jury trial convictions of first-degree 

felony murder, MCL 750.316(1)(b), second-degree home invasion, MCL 750.110a(3), felon in 

possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a firearm during 

the commission of a felony (felony-firearm), MCL 750.227b(1). The convictions arose out of 

defendant’s second jury trial, his first having ended in a mistrial. The trial court sentenced 

defendant to life imprisonment without the possibility of parole for the felony-murder 

conviction, 9 to 15 years’ imprisonment for the second-degree home invasion conviction, three 

to five years’ imprisonment for the felon-in-possession conviction, and two years’ imprisonment 

for the felony-firearm conviction, with the sentence for the felony-firearm conviction to be 

served consecutively to and preceding the sentences on the other convictions. For the reasons set 

forth in this opinion, we affirm. 

I. BACKGROUND

Defendant’s convictions arise from the shooting death of 28-year-old Terrell Baynham, 

which occurred in his Detroit home on June 15, 2016. Baynham, who was a drug dealer, had 

known defendant since childhood. The prosecution’s theory of the case was that defendant and 

another man, Antonio Stevenson, entered Baynham’s house without permission intending to 

steal narcotics and other items while the Baynham was away, and either defendant or Stevenson 

used defendant’s gun to fatally shoot Baynham when Baynham returned home unexpectedly. 

The defense theory of the case was that (1) defendant and Baynham were friends, (2) defendant 

was visiting Baynham in the hours before his death and had implied permission to be in 
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Baynham’s home while he was gone, (3) defendant was “merely present” when Stevenson 

“snatched” defendant’s gun away from him and fatally shot Baynham, and (4) defendant did 

nothing to aid or abet Stevenson in Baynham’s murder or the subsequent theft of Baynham’s 

property. 

At trial, Kaila Perkins testified that she and her cousin Makeia Watkins went to 

Baynham’s house at approximately 12:45 a.m. on June 15, 2016, to hang out with him. Perkins 

and Baynham were close friends. Perkins and Watkins had been drinking that night and brought 

more alcohol with them to continue drinking at Baynham’s house. When they arrived, Baynham

was sitting in his orange Camaro, which was parked across the street from his home. Defendant 

and Stevenson were standing outside the Camaro, and defendant’s black pickup truck was parked 

in front of Baynham’s house. Perkins parked her car behind defendant’s truck. She had not met 

defendant or Stevenson before. Perkins and defendant engaged in conversation while Baynham 

walked Watkins into his house so she could use the restroom. 

When Watkins returned, she and Perkins walked to the corner, which was only a few 

steps away, to discuss their “next steps” for the night. Perkins and Watkins both testified that 

when they returned to Perkins’s car, Watkins’s cell phone was missing. The phone had been on 

the roof of Perkins’s car when Watkins went into Baynham’s house to use the restroom. Perkins

testified that she assumed that either Baynham or defendant had taken the phone since they were 

next to her car. She told Baynham that the phone was missing, and she then noticed defendant 

“fumbling around the front seat of his car as if he was looking for something.” Concluding that 

defendant must have taken the phone, Perkins threatened to “tear up” or “ram” defendant’s truck 

if the phone was not returned. Baynham called defendant over to the Camaro, and the two men 

spoke privately for a moment. Then Baynham called Perkins over to the Camaro, and Baynham 

retrieved Watkins’s phone from a cup holder in the Camaro and gave it to Perkins. Perkins 

became “upset” and screamed, “You’re hanging around these bums stealing iPhones.” Perkins 

and Watkins left because Perkins did not want to be around anybody that she “couldn’t be 

comfortable with.” 

Perkins testified that when she and Watkins left, it was approximately 1:20 a.m. After 

realizing that it was too late to make it to a bar, they went to a liquor store to “grab[] another 

bottle.” Perkins called Baynham that she and Watkins would return to his house if he “made 

those guys leave.” Baynham agreed to “make that happen.” Perkins and Watkins arrived back at 

Baynham’s house by approximately 1:50 or 2:00 a.m., but defendant and Stevenson were still 

there. Baynham walked out into the road and got into Perkins’s car, telling her to drive around 

for a little while and that if she did so, defendant and Stevenson would leave. Perkins was 

unaware whether Baynham ever actually instructed defendant and Stevenson to leave. After 

driving around for 15 or 20 minutes, Perkins drove by Baynham’s house again. Defendant and 

Stevenson were still there, leaning against defendant’s truck. Baynham instructed Perkins to 

keep driving. 

At that point, Perkins received a call from a friend, and she then drove to Romulus, along 

with Watkins and Baynham, to pick up her friend. Perkins testified that when Baynham realized 

that Perkins was planning to leave Detroit, he told her “that he wasn’t prepared to just leave” and 

“that he had left his main door open,” locking only the exterior screen door. Perkins assured him 

that she would bring him “right back” home. When they returned to Baynham’s house, it was 
-3-

approximately between 3:30 and 4:00 a.m. Perkins testified that she saw defendant’s truck in the 

same place outside the house, but she did not see defendant or Stevenson. Baynham’s Camaro 

was also still parked in the street. Perkins dropped Baynham off and drove away before he 

entered the house. According to Perkins, Watkins called Baynham at approximately 4:45 or 4:50 

a.m., but he did not answer. However, Watkins testified that she recalled making a written 

statement to the Detroit Police in which she indicated that she called Baynham at 4:47 a.m. that 

morning to see if he was okay, and he replied, “Yes.” 

Baynham was found dead inside his house by several of his family members at some 

point after 5:00 p.m. that same day. When his family members found him, Baynham was already 

cold to the touch. He had been shot twice: once in the back of the head and once in the side of 

the neck. Baynham’s sister, Saporaw Cok, testified that she noticed that Baynham’s Camaro, his 

keys to the Camaro, his cell phone, and his flat-screen television were all missing. Cok further 

testified that when the police arrived, an officer asked her if there was “anybody your brother 

had a beef with” and “[d]id your brother have any problems with anyone?” Cok responded that 

Baynham “never had a beef with no one, but I know [defendant] is a person that [Baynham] had 

a beef with.” Cok explained during her trial testimony that both she and Baynham were friends 

with defendant and that there was a time when Baynham and defendant were not speaking to 

each other.

1

 

Henton Ellis, who was married to defendant’s grandmother and had known defendant 

since he was an infant, testified that defendant and defendant’s daughter lived with Ellis at times. 

Defendant had his own room at Ellis’s house. Ellis further testified that on June 16, 2016, he 

saw defendant carrying a flat-screen television. Ellis had never seen this television before. Ellis 

had also seen defendant with a gun about a month before the murder. 

Officer Michael Crosby was the officer in charge of the case. Upon being informed that 

Baynham’s Camaro was missing, Crosby learned that it was a rental vehicle that was equipped 

with a GPS device. Using the GPS to locate the Camaro, the police discovered it in Stevenson’s 

possession. When they attempted to detain Stevenson, he fled and “tossed a weapon.” 

Stevenson was apprehended, and it was later determined that the gun that Stevenson had 

“tossed” could not have been the murder weapon in this case. 

Baynham’s girlfriend, Jon Nae Gladden, testified that on July 7, 2016,2 she received a 

text message that read, “Stop talking to people.” Gladden did not recognize the sender’s cellular 

number and had never received a text message from that number before, so she responded, “Who 

is this?” In response, Gladden received a message stating, “You got niggas out here speaking on 

my name.” She replied, “I doubt it. Who is this?” The unknown sender responded, “It’s Zig. 

Mothafuckas saying you keep bringing my name up.” Gladden knew defendant “through the 

 1 It is unclear from Cok’s testimony when this occurred or whether Baynham and defendant were 

on speaking terms at the time of the murder.

2 Gladden testified that the following exchange of text messages began late in the evening on 

July 7, 2016, but extended into the early morning hours of July 8, 2016.
-4-

neighborhood” and knew that he went by the nickname “Ziggy.” As a result, she concluded that 

defendant was the person sending the text messages to her. Gladden sent another responsive text 

message to the unfamiliar number that she now associated with defendant, telling him to call her. 

They spoke briefly on the phone, but defendant said that he could not talk. Gladden recognized

the voice on the phone as defendant’s. They continued to exchange text messages. Gladden 

received a message from the same number stating, “Do people know that I did it?” She 

responded, “Why though?” She received a reply asking, “Why what?” Gladden replied, “Why 

are people saying that you did it?” In response, she received a message stating, “You tell me.” 

Gladden received another message that said, “Just know if I go down, you’re going down too.” 

She replied, “[W]hat the if you can [sic] are you talking about?” Gladden received another text 

message from the same number stating, “Are you trying to set me up like you did your nigga 

‘Low?” She did not respond. Gladden testified that “Low” was a nickname for Baynham. 

Baynham’s cousin, Emunah Evans, testified that she knew defendant through mutual 

friends and that at some point after Baynham’s murder, defendant “reached out” to her and 

informed her that he “wasn’t there” when Baynham was killed. However, Evans confronted 

defendant again after hearing his name mentioned at Stevenson’s preliminary hearing. Evans 

testified that after telling defendant what had happened in court at the hearing,3 defendant 

responded by telling her, “That’s not what happened” and that he “didn’t kill [Baynham].” 

According to Evans, defendant told her that he and Stevenson had gone to Baynham’s house to 

“buy some work,” which Evans explained meant “drugs.” Evans further testified that defendant 

told her that Baynham was “acting like he ain’t want them there,” that “two girls had pulled up,”

and that one of the girls accused defendant of stealing a phone. Defendant explained that 

Baynham had actually hidden the phone. Defendant told Evans that Baynham then left with the 

girls without informing defendant or Stevenson and that Baynham never responded to 

defendant’s subsequent attempts to call and text him. After waiting for about 45 minutes, 

defendant and Stevenson decided to go into the house. Evans testified that defendant told her 

that he “didn’t want to steal nothing” and that he “was going to leave the money there.” While 

he was in the house “looking for stuff,” defendant “heard someone coming in through the front 

 3 As will be explained in more detail later in this opinion, the trial court sustained defense 

counsel’s hearsay based objection to the introduction of any testimony concerning exactly what 

Stevenson said at his preliminary examination. The objection immediately followed Evans’s 

testimony that defendant told her before Stevenson’s preliminary examination that “[defendant] 

wasn’t there” when Baynham was shot but that after the preliminary examination, she told 

defendant that she “went to the preliminary hearing, and that Antonio Stevenson had said that he 

was.” After hearing arguments from the attorneys, the trial court ruled that it was permissible for 

Evans to testify that she “relayed information” to defendant about what happened at the 

preliminary examination but that Evans could not “say specifically what was said at the 

preliminary examination.” The trial court’s ruling and the attorney’s respective arguments on the 

matter were made outside the presence of the jury and Evans. Following the trial court’s ruling, 

Evans testified that she had told defendant about what had happened at the preliminary 

examination, but she did not testify about the substance of what was actually said at that 

proceeding.
-5-

door.” Defendant told Evans that he hid in the bathroom but came out after he “heard some 

commotion going on in the front room.” Defendant saw Stevenson and Baynham “exchanging 

words.” Evans testified that defendant told her that Stevenson “snatched the gun out of his 

hand” and shot Baynham twice. Defendant did not say why he had a gun or why he had pulled it 

out. Defendant claimed that he did nothing while Stevenson went through Baynham’s pockets 

and took Baynham’s cell phone and keys. The two men fled out the front door of the house, and 

defendant gave Baynham’s cell phone to someone in a gold Impala that was parked outside the 

house. Defendant left the scene in his truck, and Stevenson left in Baynham’s Camaro. 

According to Evans, defendant maintained that nothing was stolen from the house. 

At the conclusion of defendant’s trial, the jury found him guilty of first-degree felony 

murder, second-degree home invasion, felon-in-possession,4 and felony-firearm. Further facts 

necessary to our resolution of the issues raised on appeal will be discussed in the analysis section 

below. 

II. ANALYSIS

On appeal, defendant raises numerous claims of error. We analyze each in turn. 

A. CONFRONTATION CLAUSE 

Defendant first argues that his right to confrontation was violated because statements 

made by Stevenson were admitted into evidence even though Stevenson did not testify at trial 

and was not subject to cross-examination by defendant. Defendant’s argument is predicated on 

the testimony of two witnesses given on direct examination by the prosecutor, as well as a 

portion of the prosecutor’s closing argument. 

First, defendant cites the following exchange that occurred between the prosecutor and 

Evans concerning Stevenson’s preliminary examination: 

[Prosecutor]: So when you spoke to [defendant] prior to the hearing, he 

didn’t say anything about the death of Terrell Baynham? 

[Evans]: No. He said he wasn’t there. 

[Prosecutor]: But once you heard the information at the hearing, you 

confronted him again? 

[Evans]: Yes. 

[Prosecutor]: And what did you tell him? 

 4 Defendant stipulated at trial that he had previously been convicted of a felony and was 

ineligible to carry a firearm in Michigan on the night that Baynham was killed.
-6-

[Evans]: I told him I went to the preliminary hearing, and that Antonio 

Stevenson had said that he was. 

[Defense Counsel]: Objection to what Antonio Stevenson said. 

[Evans]: And— 

The Court: Hold on. 

[Defense Counsel]: It’s hearsay. 

The trial court dismissed the jury and Evans from the court room and heard arguments from 

defense counsel and the prosecutor regarding the hearsay objection. Defense counsel argued that 

Evans was “testifying to what she heard someone else say out of this court, and it’s definitely for 

the truth of the matter asserted.” The trial court sustained the objection. The court ruled that 

Evans could testify that she “relayed information to [defendant] about what happened at the 

preliminary exam” but could not say “what she heard at the preliminary exam and what 

Stevenson said.” Following this ruling, the jury was brought back into the courtroom and Evans 

testified regarding the statements defendant made to her about the events surrounding 

Baynham’s death. We have already described the substance of this testimony earlier in this 

opinion. As specifically relevant to defendant’s appellate Confrontation Clause challenge, Evans 

began this portion of her testimony as follows: 

[Prosecutor]: So after speaking to the defendant, did you tell him anything 

about what had happened in court? 

[Evans]: Yes, I did. 

[Prosecutor]: And after you told the defendant what had happened in 

court, did he say anything to you? 

[Evans]: Yes. He told me— 

[Prosecutor]: What did he tell you? 

[Evans]: “That’s not what happened.” 

[Prosecutor]: What did he tell you, the defendant? 

[Evans]: He didn’t kill [Baynham]. 

[Prosecutor]: Pardon? 

[Evans]: He didn’t kill [Baynham]. 

Second, defendant cites the following exchange from Crosby’s testimony, during which

the prosecutor was asking Crosby about the police apprehension of Stevenson when he was 

located in possession of Baynham’s Camaro: 
-7-

[Prosecutor]: And how were you able to locate that car? 

[Crosby]: Well, the vehicle was—it was a rental vehicle. So we went to 

the rental company. They told us that it has a GPS on it. And we went up on the 

GPS, found the vehicle, and did a surveillance on the vehicle until someone got to 

the vehicle.

[Prosecutor]: And were you able to, when someone got into the vehicle, 

was that person ever—were they able to detain that person? 

[Crosby]: Yes. 

[Prosecutor]: Who was that person? 

[Crosby]: Antonio Stevenson. 

* * *

[Prosecutor]: Did you speak to Mr. Stevenson? 

[Crosby]: Yes. 

[Prosecutor]: After speaking to Mr. Stevenson, did you develop a second 

suspect in this case? 

[Crosby]: I did. 

[Prosecutor]: And who was that? 

[Defense Counsel]: Well, I’m going to object. I’m going to object based 

on hearsay. The question is intended to elicit hearsay as to what Mr. Stevenson 

said. So I’m going to object based on hearsay. 

[Prosecutor]: It’s not hearsay. It’s an identification. It’s the name of a 

person. It’s a statement. 

The Court: Counsel, approach, please. 

[Discussion held off the record] 

The Court: As long as he’s not stating exactly what Mr. Stevenson said, 

you can ask him based on his conversation where did he go from there. 

[Prosecutor]: You said you spoke to the defendant or the suspect, Mr. 

Stevenson; is that correct? 

[Crosby]: Yes. 
-8-

[Prosecutor]: And after you spoke to Mr. Stevenson, did you develop a 

second suspect in the case? 

[Crosby]: Yes. 

[Prosecutor]: And what was the name of that person? 

[Crosby]: [Defendant.] 

Third, defendant refers to the following portion of the prosecutor’s rebuttal argument

during closing arguments: 

They knew who these people were the day after. Stevenson was caught in 

the car. Stevenson talked. They did a lineup. The Defendant, Bowman, was 

picked out of the lineup. They knew who these people were. They just needed 

some more time to develop a case. [Emphasis added.] 

No objection was made to this argument. Stevenson did not testify at defendant’s trial. 

Because defendant did not raise his Confrontation Clause challenge in the trial court, this 

issue is unpreserved for appellate review. People v Metamora Water Serv, Inc, 276 Mich App 

376, 382; 741 NW2d 61 (2007). Although defense counsel objected to testimony of Evans and 

Crosby with respect to statements of Stevenson, defense counsel only objected on hearsay 

grounds. We note that defense counsel’s hearsay objections were successful. Nonetheless, these 

objections on hearsay grounds do not operate to preserve defendant’s Confrontation Clause 

issue. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993) (“An objection based on 

one ground at trial is insufficient to preserve an appellate attack based on a different ground.”). 

We review unpreserved claims of error predicated on the Confrontation Clause for plain 

error affecting substantial rights. People v Walker, 273 Mich App 56, 66; 728 NW2d 902 

(2006); see also Delaware v Van Arsdall, 475 US 673, 682-684; 106 S Ct 1431; 89 L Ed 2d 674 

(1986) (holding that harmless-error analysis is generally applicable in the context of

Confrontation Clause errors); People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009) 

(noting that a violation of the Confrontation Clause was not a structural error and that this Court 

“review[s] unpreserved claims of nonstructural, constitutional error for plain error”). “To avoid 

forfeiture under the plain error rule, three requirements must be met: 1) error must have 

occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial 

rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “A ‘clear or obvious’

error under the second prong is one that is not ‘subject to reasonable dispute.’ ” People v 

Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018) (citation omitted). Under the third 

requirement, a defendant must generally show “prejudice, i.e., that the error affected the outcome 

of the lower court proceedings.” Carines, 460 Mich at 763. 

The Confrontation Clause of the Sixth Amendment of the United States Constitution 

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him . . . ” US Const, Am VI. This right has been made 

applicable to the states. Crawford v Washington, 541 US 36, 42; 124 S Ct 1354; 158 L Ed 2d 

177 (2004), citing Pointer v Texas, 380 US 400, 406; 85 S Ct 1065; 13 L Ed 2d 923 (1965). The 
-9-

right of confrontation is also protected by the analogous provision of the Michigan Constitution. 

Const 1963, art 1, § 20; People v Nunley, 491 Mich 686, 697; 821 NW2d 642 (2012). 

The United States Supreme Court has held that the Confrontation Clause bars the 

“admission of testimonial statements of a witness who did not appear at trial unless he was 

unavailable to testify, and the defendant had . . . a prior opportunity for cross-examination.” 

Crawford, 541 US at 53-54. In Crawford, the Supreme Court explained that the Confrontation 

Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ 

” Id. at 51 (citation omitted). The Crawford Court further explained that “ ‘Testimony,’ in turn, 

is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or 

proving some fact.’ ” Id. (quotation marks and citation omitted; alteration in original). The 

United States Supreme Court later explained that a “critical portion” of its holding in Crawford

was “the phrase ‘testimonial statements’ ” and that “[o]nly statements of this sort cause the 

declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v 

Washington, 547 US 813, 821; 126 S Ct 2266; 165 L Ed 2d 224 (2006), citing Crawford, 541 US 

at 51. 

In this case, defendant’s appellate argument is premised on the assertion made in his brief 

that “it is clear that Antonio Stevenson, a non-testifying co-defendant, made a statement in which 

he said that [defendant] was at the scene of the crime and that [defendant] had indeed killed 

Baynham.” However, there is no such statement by Stevenson that was actually introduced into 

evidence at trial, primarily because defense counsel successfully objected on hearsay grounds to 

the introduction of any statements of that nature as soon as the prosecutor’s questioning appeared 

to be inevitably traveling down that path. At most, the only statement of Stevenson’s that 

actually made it into evidence before defense counsel objected was Evans’s testimony that “I 

told [defendant] I went to the preliminary hearing, and that Antonio Stevenson had said that he 

was.” Defense counsel’s objection cut Evans off before she could add to that statement. 

Thus, defendant’s appellate Confrontation Clause challenge rests entirely on speculation 

about what could potentially be inferred about what Stevenson might have said, as well as the 

assumption that because we can imagine a damaging form of statement by Stevenson, this is the 

same as having actually admitted such a statement into evidence at trial. Indeed, defendant 

admits as much on appeal, explicitly referring in his brief to the alleged “testimonial statements”

of Stevenson on which his Confrontation Clause argument is premised as statements that were 

“implied by the witnesses Evans and Crosby” (emphasis added). We acknowledge that it is 

plausible that Stevenson may have made a statement similar in nature to the one proposed by 

defendant in his appellate brief or otherwise implicating defendant in the murder in some 

fashion. But the fact remains that the trial record does not inform us and, most importantly, did 

not inform the jury what Stevenson actually said. Because no testimonial statement by 

Stevenson was admitted into evidence at trial, defendant has not demonstrated that a 

Confrontation Clause violation constituting a clear or obvious error occurred. Crawford, 541 US 

at 53-54; Davis, 547 US at 821. 

A different conclusion is not compelled by the fact that the prosecutor stated during 

rebuttal argument that “Stevenson talked.” We reiterate that there was no actual statement by 

Stevenson introduced into evidence. The prosecutor’s statement cited by defendant was brief 

and vague, and it did not constitute a statement by Stevenson. Moreover, the jury was instructed 
-10-

that statements, arguments, and commentary by the lawyers are not evidence. It is well 

established that jurors are presumed to follow their instructions.5 People v Bruner, 501 Mich 

220, 228; 912 NW2d 514 (2018). 

Additionally, even if Evans’s testimony that immediately preceded defense counsel’s 

hearsay objection could be understood to have constituted the admission into evidence of a 

testimonial statement by Stevenson,

6 defendant has not demonstrated any prejudice. Considering 

this testimony—in which Evans testified that she told defendant that she went to the preliminary 

examination and Stevenson “said that he was”—within the context of Evans’s answers to the 

prosecutor’s preceding questions, the testimony could be understood at most to indicate that 

Stevenson said defendant was present when the home invasion and murder occurred. However, 

defendant’s own statements conceding that he was present during the incident were also admitted 

at trial. Moreover, defendant’s statements also indicated that he was more than merely present; 

he was actually involved in the incident regardless of defendant’s attempts to minimize his 

involvement and to offer excuses and justifications for his involvement. Therefore, defendant 

has not shown that any statement by Stevenson that could potentially be understood to have 

come into evidence at trial caused any prejudice by affecting the outcome of the trial.7 Carines, 

 5 We are cognizant that a “narrow exception” exists in “when the facially incriminating 

confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is 

instructed to consider the confession only against the codefendant.” Richardson v Marsh, 481 

US 200, 207; 107 S Ct 1702; 95 L Ed 2d 176 (1987). However, this exception is inapplicable in 

the instant case where no confession or statement of any discernable substance was introduced 

into evidence.

6 We note that on this record, we do not know the context in which the statement allegedly made 

by Stevenson was made and therefore cannot discern whether such a statement was even 

testimonial. See Crawford, 541 US at 51 (stating that “not all hearsay implicates the Sixth 

Amendment’s core concerns” and that “[a]n accuser who makes a formal statement to 

government officers bears testimony in a sense that a person who makes a casual remark to an 

acquaintance does not”). Nonetheless, assuming without deciding that the statement would have 

constituted a testimonial statement, defendant has still not shown that he was prejudiced by it for 

the reasons explained above.

7 We further note that even if we operated under the assumption that a statement by Stevenson 

implicating defendant in the murder was actually admitted at trial through inference, we would 

conclude that defendant failed to demonstrate plain error requiring reversal because he has not 

demonstrated any prejudice. In People v Henry (After Remand), 305 Mich App 127, 154; 854 

NW2d 114 (2014), this Court concluded that a detective’s testimony about what a confidential 

informant had said constituted the admission of a testimonial statement that violated that the 

Confrontation Clause where there had been no prior opportunity for the defendant to crossexamine the informant. We reasoned that the testimony “was not limited to show why [the 

detective] proceeded in a certain direction with his investigation” but instead “necessarily 

implied that the informant accused defendant of the first two robberies and that [the detective

considered the informant credible.” Id. We further reasoned that the statements were testimonial 

because their primary purpose was to prove past events that were potentially relevant to a future 
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460 Mich at 763. Without a showing of prejudice, defendant cannot satisfy the requirements of 

the plain-error test. 

Accordingly, for all of the above reasons, defendant has failed to establish plain error 

requiring reversal on the basis of an alleged Confrontation Clause violation. 

B. EFFECTIVE ASSISTANCE OF COUNSEL 

Next, defendant raises multiple claims of ineffective assistance of counsel. 

Whether a defendant has been denied the effective assistance of counsel is a mixed 

question of law and fact. People v Riley, 468 Mich 135, 139; 659 NW2d 611 (2003). “We 

review factual findings for clear error, but we review de novo questions of constitutional law.” 

People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). However, no Ginther8 hearing 

was conducted in this matter,9 and therefore, “our review of the relevant facts is limited to 

mistakes apparent on the record.” Riley, 468 Mich at 139. 

 

criminal prosecution. Id. Nonetheless, we held that the defendant failed to show prejudice on 

plain-error review because there was “significant evidence that would allow a juror to convict 

defendant,” which included testimony by victims identifying the defendant as the perpetrator, 

evidence of the perpetrator’s use of the same modus operandi in committing the robberies, and 

evidence tying defendant to clothing similar to that worn by the perpetrator of the robberies. Id. 

at 155.

As an initial matter, we find Henry to be distinguishable from the instant case because the 

testimony at issue here was not as pervasive or detailed with respect to any statements by 

Stevenson as the testimony was in Henry regarding the statements of the confidential informant. 

Regardless, we find that defendant has not shown prejudice in the instant case from any 

statements allegedly made by Stevenson and admitted in violation of the Confrontation Clause. 

We reach this conclusion on the basis of the entire record, which includes, among other things, 

statements by defendant describing his role in the events leading to the murder as well as his text 

message to Baynham’s girlfriend asking if people knew that defendant “did it.” There was also 

evidence that defendant and Stevens were outside Baynham’s house before the murder; that his 

truck was still parked outside Baynham’s house when Baynham was dropped off by Perkins and 

Watkins on the day of the murder; that Stevens was found in possession of Baynham’s Camaro 

after the murder; that a flat screen television was missing from Baynham’s house; and that 

defendant was seen shortly after the murder by Ellis, someone with whom defendant lived, 

carrying a flat screen television that Ellis had not seen previously. Based on the record evidence, 

a reasonable juror could conclude that defendant was present and participated in the home 

invasion and murder.

8 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

9 This Court previously denied defendant’s motion to remand for purposes of a Ginther hearing 

because defendant “fail[ed] to persuade the Court of the necessity of a remand at this time.” 
-12-

To successfully claim that a conviction must be reversed on the basis of ineffective 

assistance of counsel, a defendant must make two showings: (1) that counsel’s performance was 

deficient, meaning that counsel performed below an objective standard of reasonableness under 

prevailing professional norms; and (2) that the deficient performance was prejudicial to the 

defense, meaning that there must be a reasonable probability that the result of the proceeding 

would have been different had it not been for counsel’s unprofessional errors. Strickland v 

Washington, 466 US 668, 687-688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see also People 

v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). In order to establish the deficient 

performance prong, “the defendant must overcome a strong presumption that counsel’s 

performance constituted sound trial strategy.” Riley, 468 Mich at 140; see also Strickland, 466 

US at 689-690. Regarding the prejudice prong, a “reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694. “Failure to 

make the required showing of either deficient performance or sufficient prejudice defeats the 

ineffectiveness claim.” Id. at 700. 

1. CONFRONTATION CLAUSE 

First, with respect to the alleged Confrontation Clause violation that we have already 

examined, defendant argues in the alternative that he received ineffective assistance of counsel 

because defense counsel did not object on Confrontation Clause grounds to the admission of 

Stevenson’s statements. In making this argument, defendant relies on the same portions of the 

trial record cited above. 

However, as previously discussed, defense counsel successfully prevented Stevenson’s 

statements from being admitted in to evidence by objecting on hearsay grounds. Therefore, 

defendant cannot show that defense counsel’s performance in this respect was not sound trial 

strategy or otherwise below an objecting standard of reasonableness. Strickland, 466 US at 687-

688, 689-690; Riley, 468 Mich at 140. Regarding the prosecutor’s rebuttal argument statement, 

the statement was brief and vague, and it also did not disclose the substance of any statement 

made by Stevenson. “[T]here are times when it is better not to object and draw attention to an 

improper comment,” especially during closing arguments; this decision often can be consistent 

with sound trial strategy. Unger, 278 Mich App at 242 (quotation marks and citation omitted). 

“We will not substitute our judgment for that of counsel on matters of trial strategy, nor will we 

use the benefit of hindsight when assessing counsel’s competence.” Id. at 242-243. Moreover, 

defendant’s own statements that were admitted into evidence established defendant’s presence 

and involvement during the crimes; these statements were much more damaging to the defense 

than the bare notion that Stevenson may have made statements casting blame on defendant. 

Defendant’s own statements were also much more damaging than any statement by Stevenson 

that defendant was present, even assuming such a statement could be considered to have been 

admitted at trial. Defendant therefore has not established the prejudice prong either because he 

has not shown that but for the alleged error, the outcome of his trial would have been different. 

 

People v Bowman, unpublished order of the Court of Appeals, entered May 10, 2018 (Docket 

No. 339086).
-13-

Strickland, 466 US at 694. In accordance with the above analysis, defendant has not shown that 

he received ineffective assistance of counsel based on his Confrontation Clause arguments 

because defendant has not demonstrated that defense counsel performed deficiently or that 

defendant suffered any prejudice based on this alleged error. Id. at 700. 

On a related note, defendant argues that defense counsel was ineffective for failing to 

move for a mistrial on the basis of Stevenson’s statements being admitted into evidence. In this 

case, Stevenson’s statements were not admitted, and defendant again relies on what could be 

implied or inferred from the trial testimony about what Stevenson may have said. As we have 

already explained, defendant has not demonstrated that any prejudicial error occurred regarding 

statements by Stevenson. Therefore, defendant has not shown that he was entitled to a mistrial 

on this ground. People v Alter, 255 Mich App 194, 205; 659 NW2d 667, 674 (2003) (“A mistrial 

should be granted only for an irregularity that is prejudicial to the rights of the defendant . . . and 

impairs his ability to get a fair trial.”) (quotation marks and citation omitted; ellipsis in original). 

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

People v Henry (After Remand), 305 Mich App 127, 141; 854 NW2d 114 (2014). 

2. MOTION TO STRIKE

Next, defendant argues that his trial counsel was constitutionally ineffective for failing to 

move for evidence that had been ruled inadmissible to be stricken from the record. After making 

this broadly framed general argument, defendant only specifically cites the references to 

Stevenson’s statement as an example of trial counsel’s alleged error in this respect. The 

substance of any statement by Stevenson was not disclosed to the jury because of defense 

counsel’s immediate hearsay objections, which were sustained by the trial court. As a result, any 

references to statements by Stevenson were brief and vague. Trial counsel could have 

reasonably determined that further emphasis on these statements by seeking to have the jury 

specifically instructed not to consider them would have only served to highlight their potentially 

damaging nature. It can be an effecting trial strategy to refrain from objecting under such 

circumstances. See Unger, 278 Mich App at 242. Moreover, to the extent that it could be 

inferred that Stevenson stated that defendant was present and involved in the crimes, there was 

significant additional evidence supporting such an inference, making any reference to a 

statement by Stevenson to that effect cumulative. We thus conclude, with respect to trial 

counsel’s decision not to move to strike this testimony, that defendant has not overcome the 

strong presumption that trial counsel employed sound trial strategy or shown that he suffered 

prejudice.

10 Strickland, 466 US at 700. 

 10 Because defendant has not directed our attention to any other specific evidence that he 

believes should have been subjected to a motion to strike, had has abandoned any further 

challenges on this ground. “An appellant may not merely announce his position and leave it to 

this Court to discover and rationalize the basis for his claims, nor may he give only cursory 

treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 

640-641; 588 NW2d 480 (1998). An issue is abandoned if an appellant “fail[s] to properly 
-14-

3. HEARSAY 

Next, defendant argues that he received ineffective assistance of counsel because his trial 

counsel failed to object on hearsay grounds to (1) testimony by Cok that Baynham had told her 

that he had had some problems with defendant; (2) Perkins’s testimony that Baynham had 

indicated at some point during the trip to Romulus that he had “left his main door open” and was 

not “prepared to just leave”; and (3) Detective Mark Burke’s testimony, given in response to a 

juror’s question, that he had stopped a truck driven by defendant because he had “received 

information” that defendant “was a homicide suspect.”

11 

“Hearsay” is “a statement, other than the one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). 

Hearsay is not admissible except as provided by our rules of evidence. MRE 802. 

With respect to the testimony of Baynham’s sister, Cok, she testified that Baynham had 

informed her about his problems with defendant but also testified from her own independent 

knowledge of the dispute between Baynham and defendant, which was based on her observations 

and familiarity with both Baynham and defendant. Cok explained that she and Baynham were 

both friends with defendant. Cok testified that she knew that Baynham “had a beef” with 

defendant, and she also testified that there was a period of time where Baynham and defendant 

were not speaking to each other. Consequently, even a successful hearsay objection would have 

served no practical purpose because the jury would still have learned about the existence of this 

tension between Baynham and defendant, which demonstrates the cumulative nature of the 

challenged testimony. For that reason, it was a reasonable strategic decision under the 

circumstances for counsel to decline to raise an objection, Unger, 278 Mich App at 242-243, and 

defendant has not shown a reasonable probability that the outcome would have been different but 

for the admission of this testimony, Strickland, 466 US at 694. 

There were, likewise, valid strategic reasons that support counsel’s decision not to object 

to Perkins’s disputed testimony. Defendant’s theory of the case was, in large part, that he did not 

commit second-degree home invasion, and thus also did not commit or aid or abet felony 

murder, because he and Stevenson had tacit permission to enter Baynham’s home while he was 

 

address the merits of his assertion of error.” People v Harris, 261 Mich App 44, 50; 680 NW2d 

17 (2004).

11 Defendant also contends, as an additional basis for this particular ineffective assistance of 

counsel claim, that his trial counsel failed to object on hearsay grounds to Crosby’s testimony 

that he spoke to Stevenson and that defendant was subsequently considered a second suspect. 

However, this argument is factually contradicted by the record. As can be seen from the portion 

of Crosby’s testimony quoted earlier in this opinion, defense counsel did, in fact, object to this 

testimony on hearsay grounds. The trial court issued its ruling, and the prosecutor continued 

questioning Crosby in compliance with that ruling. Thus, there is no factual basis for 

defendant’s ineffective assistance of counsel claim with respect to this testimony. We further 

note that defendant does not challenge the trial court’s hearsay ruling on appeal.
-15-

gone. That defense theory was supported, not undercut, by Perkins’s contested testimony; 

defense counsel even made use of this testimony in closing argument to support the defense 

theory. In other words, Perkins’s disputed testimony was seemingly more beneficial to the 

defense than the prosecution. Defendant’s cursory appellate assertion that there “was no 

reasonable trial strategy for allowing this testimony in without objection” is insufficient to 

overcome the strong presumption that trial counsel employed a sound trial strategy. Strickland, 

466 US at 689-690; Riley, 468 Mich at 140. “The fact that the strategy chosen by defense 

counsel did not work does not constitute ineffective assistance of counsel.” People v Williams, 

240 Mich App 316, 332; 614 NW2d 647 (2000). Furthermore, considering that this evidence 

was more helpful than harmful to the defense, defendant has not demonstrated any prejudice 

flowing from this testimony. Although defendant asserts on appeal that this testimony 

undermined his defense, defendant has not provided any further explanation of this contention. 

We therefore also conclude that this argument is abandoned. “An appellant may not merely 

announce his position and leave it to this Court to discover and rationalize the basis for his 

claims, nor may he give only cursory treatment with little or no citation of supporting authority.” 

People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). “An appellant’s failure to 

properly address the merits of his assertion of error constitutes abandonment of the issue.” 

People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). 

Similarly, with respect to Burke’s challenged testimony, defendant has also failed to 

overcome the presumption that his trial counsel employed sound strategy by declining to object. 

Burke testified that he stopped a black pickup truck driven by defendant at approximately 12:25 

a.m. on June 17, 2016. When he asked defendant for his name, defendant provided a false name. 

Burke was directed to release defendant at this point. After this testimony, Burke was presented 

with a question from the jury: 

The Court: “Why was the black truck stopped by the police?” 

[Burke]: I received information that the defendant, Mr. Bowman, was 

driving, and he was a homicide suspect. He was followed, surveilled by 

undercover units from a party store to the location where I was able to catch up 

with him. 

This challenged testimony was not elicited by the prosecution; rather, it was Burke’s 

response to a juror-posed question. There was no indication from the phrasing of the question 

that it would necessarily elicit hearsay, so defense counsel had no reason to object before the 

question was asked. Once the answer was given, defense counsel might reasonably have been 

hesitant to object to it out of concern that an objection might be viewed negatively by the jury. 

Defense counsel may have also determined that it was better to refrain from objecting so such a 

brief and relatively inconsequential answer at that point, rather than drawing further attention to 

it; this was a reasonable trial strategy. See Unger, 278 Mich App at 242. Defendant has not 

overcome the presumption that counsel’s performance constituted sound trial strategy. 

Strickland, 466 US at 689-690; Riley, 468 Mich at 140. Moreover, defendant has not explained 

how he was prejudiced by the information that defendant, at some point, had been considered by 

the police to be a homicide suspect. The jury was instructed that the fact that defendant was 

charged with a crime and was on trial is not evidence. Jurors are presumed to follow their 

instructions. Bruner, 501 Mich at 228. 
-16-

Defendant has not shown that he received ineffective assistance of counsel on the basis 

that defense counsel did not object to the above testimony on hearsay grounds.12 

4. MISSING WITNESS 

Next, defendant argues that trial counsel performed ineffectively by failing “to secure the 

appearance of” Mildred Brown as a defense witness. 

On the last day of trial, after the prosecution had rested, Brown was not present and 

defense counsel informed the trial court about his efforts to secure Brown’s presence to testify on 

behalf of the defense at trial. Counsel indicated that he had contacted Brown in advance of trial, 

served her with a subpoena, notified her of an adjournment of the second trial that affected the 

date for her planned testimony, telephoned her five times during the course of the second trial 

that is the subject of this appeal (three times on the morning that she was to testify and twice the 

previous evening), left voicemail messages, and searched the courthouse for her. Although 

defense counsel had apparently been successful in contacting Brown before the second trial, she 

did not respond to his attempts to contact her during the course of the second trial. 

When the trial court offered to send the police “to go pick her up with a witness 

detainer,” defense counsel declined. His “main reason” for doing so, he explained, was concern 

that such a course of action would result in Brown becoming a hostile witness to the defense. 

Defense counsel evidently had another reason for declining to resort to this method of securing 

Brown’s presence, but counsel stated, “I won’t go into the other reason[.]” Defense counsel

finally stated with respect to having Brown brought to the courtroom to testify, “And I just don’t 

think it would be beneficial to our case to go that route.” 

Instead, counsel asked the trial court to declare Brown an unavailable witness and permit 

Brown’s testimony from the first trial to be read into the record. The trial court refused, 

reasoning that it could not hold that Brown was “unavailable” given that defense counsel refused 

to compel her attendance and that the court did not have any information about whether defense 

counsel had attempted to contact Brown between the adjournment of the second trial and the 

night before the last day of trial. 

“Decisions regarding what evidence to present and whether to call or question witnesses 

are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76; 601 NW2d 

887 (1999). “This Court will not substitute its judgment for that of counsel regarding matters of 

trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” Id. at 76-77. 

 12 Defendant also argues that defense counsel was ineffective for objecting to the above 

testimony by Burke because it was irrelevant and highly prejudicial. However, defendant has not 

established ineffective assistance of counsel on this ground for the same reasons that we 

concluded above that he did not demonstrate ineffective assistance with respect to this testimony 

on hearsay grounds.
-17-

In this case, the record supports the conclusion that defense counsel declined to call 

Brown as a witness at trial because he feared that she would damage the defense case more than 

she would help it. It seems that defense counsel was willing to present her earlier testimony—

which was a known quantity—if he could get it admitted, but did not want to run the risk of 

harming his case by ensuring Brown’s live testimony during which anything could happen. 

On appeal, defendant does not cite any record evidence or provide any argument or 

insight to give this Court reason to doubt that the concerns of defendant’s trial counsel were 

well-founded. Instead, defendant merely argues that Brown’s testimony would have 

contradicted the testimony of Perkins, Watkins, and Crosby and that “if the jury had chosen not 

to believe the testimony of Ms. Evans, there would have been no narrative given of how the 

killing occurred.” This argument relies, at its core, solely on speculation about what would have 

happened if the jury had not believed Evans even though defendant does not provide any 

explanation of how Brown’s testimony would have impeached the testimony of Evans. 

Defendant maintains on appeal that Brown’s testimony would have been helpful because she

would have testified that she lived behind Baynham’s house, that she saw seven or eight people 

outside Baynham’s house at 2:00 a.m. on the morning in question, and that she had told Crosby 

that he could contact her security company to review recordings from the video cameras on her 

house. However, to the extent that such testimony would have created any factual questions for 

the jury, the resolution of those questions would not have been material or had any impact on the 

determination of the issues that were central to the case, which involved questions surrounding 

whether defendant was involved in breaking and entering Baynham’s home, stealing Baynham’s 

property, and causing Baynham’s shooting death. Defendant does not claim that any video 

evidence that would exonerate him actually exists, and the presence of more people outside 

Baynham’s house at 2:00 a.m. does not have any impact on whether defendant was one of the 

people involved in a home invasion and murder that occurred hours later. 

Therefore, defendant has failed to overcome the presumption that defense counsel 

employed sound trial strategy by deciding not to call Brown as a witness, id., and defendant has 

not demonstrated a reasonable probability that the outcome of his trial would have been different 

had Brown testified, Strickland, 466 U.S. at 694.

5. “CONCESSION” OF AN ELEMENT DURING CLOSING ARGUMENT 

Next, defendant argues that his trial counsel rendered constitutionally ineffective 

assistance of counsel by “conceding” the larceny element of the second-degree home invasion 

charge during closing argument, which was also the underlying felony for purposes of the 

felony-murder charge. However, the premise of defendant’s argument is not factually supported 

by the record because defense counsel never conceded the larceny element of second-degree 

home invasion in making his closing argument to the jury. While defense counsel conceded that 

defendant was present, counsel argued forcefully that defendant went into Baynham’s house 

with permission in an attempt to negate the breaking and entering element of second-degree 

home invasion.13 “The fact that the strategy chosen by defense counsel did not work does not 

 13 MCL 750.110a(3) provides:
-18-

constitute ineffective assistance of counsel.” Williams, 240 Mich App at 332. Because 

defendant’s claim of error is directly contradicted by the record facts, defendant cannot 

demonstrate that she received ineffective assistance of counsel on this ground. Moreover, even if 

defense counsel had conceded the larceny element in favor of focusing his arguments on other 

matters that he believed were more likely to succeed,

14 it can be a legitimate trial strategy to 

concede “certain elements of the charge at trial.” People v Chapo, 283 Mich App 360, 369-370; 

770 NW2d 68 (2009).

6. “OTHER ACTS” EVIDENCE 

Next, defendant argues that trial counsel was ineffective for failing to object under MRE 

404(b)(1)15 to the testimony that defendant “stole” Watkins’s cell phone while Perkins and 

Watkins were at Baynham’s house on the night of the events leading up to Baynham’s death. 

However, in arguing that defense counsel should have sought to prevent this evidence from 

being admitted at trial, defendant on appeal fails to acknowledge that defense counsel actually 

used the evidence of this cell phone incident to the advantage of the defense: during closing 

 

A person who breaks and enters a dwelling with intent to commit a felony, 

larceny, or assault in the dwelling, a person who enters a dwelling without 

permission with intent to commit a felony, larceny, or assault in the dwelling, or a 

person who breaks and enters a dwelling or enters a dwelling without permission 

and, at any time while he or she is entering, present in, or exiting the dwelling, 

commits a felony, larceny, or assault is guilty of home invasion in the second 

degree.

14 We note that although defendant’s appellate argument focuses on whether it could have been 

shown that defendant did not commit a larceny on the basis of his claim that he planned to leave 

money for the narcotics he planned to take, defendant’s appellate argument nonetheless ignores 

the evidence showing that a flat-screen television was missing from Baynham’s house and 

defendant was seen shortly after the murder with a flat-screen television that he did not 

previously have. “[A]t common law simple larceny was defined as the felonious taking, and 

carrying away, of the personal goods of another.” People v March, 499 Mich 389, 401; 886 

NW2d 396 (2016) (quotation marks and citation omitted; alteration in original). “There is no 

statutory definition of larceny in Michigan and all statutes use the term in its common-law 

sense.” Id. at 399-400 (quotation marks and citation omitted).

15 MRE 404(b)(1) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It 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 or subsequent to the 

conduct at issue in the case.
-19-

argument, defense counsel essentially tried to discredit Perkins as a witness by describing how 

angry she became at defendant over the cell phone, even though Watkins was apparently not as 

upset, and arguing that Perkins was an “anger-driven, alcohol-fueled woman who’s really mad 

about the situation with this cell phone” and wanted defendant and Stevenson “gone.” The 

record reflects that this was not a mere spontaneous argument on the part of defense counsel or 

an attempt to make the best of a less-than-ideal situation because defense counsel crossexamined both Perkins and Watkins about the factual circumstances of this cell phone incident 

and the angry reaction it caused in Perkins. 

Defendant has not made any attempt on appeal to argue how the strategy chosen by 

defense counsel in this respect was below an objective standard of reasonableness, and we 

discern no reason to conclude that it was objectively unreasonable to adopt a strategy of trying to 

show why an important prosecution witness may have had a motive to wrongly accuse defendant 

of criminal activity. In setting forth the standards for courts to use when analyzing the 

performance prong of the ineffective assistance of counsel test, the United States Supreme Court 

gave the following explanation, which is especially pertinent in addressing the type of argument 

put forth by defendant in this case: 

No particular set of detailed rules for counsel’s conduct can satisfactorily take

account of the variety of circumstances faced by defense counsel or the range of 

legitimate decisions regarding how best to represent a criminal defendant. Any 

such set of rules would interfere with the constitutionally protected independence 

of counsel and restrict the wide latitude counsel must have in making tactical 

decisions. Indeed, the existence of detailed guidelines for representation could 

distract counsel from the overriding mission of vigorous advocacy of the 

defendant’s cause. Moreover, the purpose of the effective assistance guarantee of 

the Sixth Amendment is not to improve the quality of legal representation, 

although that is a goal of considerable importance to the legal system. The 

purpose is simply to ensure that criminal defendants receive a fair trial.

Judicial scrutiny of counsel’s performance must be highly deferential. It is 

all too tempting for a defendant to second-guess counsel’s assistance after 

conviction or adverse sentence, and it is all too easy for a court, examining 

counsel’s defense after it has proved unsuccessful, to conclude that a particular 

act or omission of counsel was unreasonable. A fair assessment of attorney 

performance requires that every effort be made to eliminate the distorting effects 

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, 

and to evaluate the conduct from counsel’s perspective at the time. Because of 

the difficulties inherent in making the evaluation, a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption 

that, under the circumstances, the challenged action “might be considered sound 

trial strategy.” There are countless ways to provide effective assistance in any 

given case. Even the best criminal defense attorneys would not defend a 

particular client in the same way. 
-20-

The availability of intrusive post-trial inquiry into attorney performance or 

of detailed guidelines for its evaluation would encourage the proliferation of 

ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant 

would increasingly come to be followed by a second trial, this one of counsel’s 

unsuccessful defense. Counsel’s performance and even willingness to serve could 

be adversely affected. Intensive scrutiny of counsel and rigid requirements for 

acceptable assistance could dampen the ardor and impair the independence of 

defense counsel, discourage the acceptance of assigned cases, and undermine the 

trust between attorney and client. 

Thus, a court deciding an actual ineffectiveness claim must judge the 

reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct. A convicted defendant making a 

claim of ineffective assistance must identify the acts or omissions of counsel that 

are alleged not to have been the result of reasonable professional judgment. The 

court must then determine whether, in light of all the circumstances, the identified 

acts or omissions were outside the wide range of professionally competent 

assistance. In making that determination, the court should keep in mind that 

counsel’s function, as elaborated in prevailing professional norms, is to make the 

adversarial testing process work in the particular case. At the same time, the court 

should recognize that counsel is strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment. [Strickland, 466 US at 688-690 (citations omitted; 

emphasis added).] 

In this case, defendant’s appellate argument is simply that defendant’s trial counsel 

should have employed a different trial strategy regarding this evidence, and defendant has not 

demonstrated that the strategy actually used was objectively unreasonable. The fact that defense 

counsel’s strategy did not prevent defendant’s conviction does not make it an unreasonable 

strategy, and arguments aimed solely at second-guessing trial strategy with the benefit of 

hindsight do not properly address the applicable standards for making an ineffective assistance of 

counsel claim. See id. Defendant has not overcome the strong presumption that defense counsel 

“rendered adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment” with respect to this issue. Id. at 690. 

7. REDACTION OF JAIL CALLS 

Next, defendant argues that defense counsel was ineffective by failing to request 

redaction of “irrelevant, highly prejudicial portions” of jail call recordings involving defendant 

that were played for the jury at trial. Defendant points out that these recordings were full of 

profanity and that one of the individuals speaking to defendant made several threats of physical 

violence directed toward children. 

Assuming without deciding that defense counsel could have successfully moved to have 

the jail calls redacted to prevent the jury from hearing these statements, we are convinced based 

on our review of the recordings that it is not reasonable to believe that the jury’s decision to 

convict defendant of the serious crimes at issue in this case, which include felony-murder and 
-21-

second-degree home invasion, on the basis of these statements made by an unknown individual 

or by defendant’s use of profanity. Defendant has not shown that there exists a reasonable 

probability, which would affect our confidence in the outcome, that the result of the trial would 

have been different if the jail calls had been redacted. Strickland, 466 US at 694. 

8. CROSS-EXAMINATION OF EXPERT WITNESS 

Next, defendant argues that his trial counsel was ineffective by failing to “adequately”

cross-examine one of the prosecution’s witnesses, Stan Brue, who testified as an expert in the 

forensic analysis of cell tower records and mapping. Specifically, defendant contends on appeal 

that his trial counsel should have asked Brue on cross-examination about Brue’s methodology 

for determining that certain cell phone numbers were “associated with” defendant and Baynham, 

as well as how Brue determined that the name “Giovanni Bossman” was the name associated 

with a telephone number that had been called several times by a cell phone number associated 

with defendant. 

However, defendant has not provided any indication that such questions would have 

elicited testimony helpful to the defense. Instead, defendant constructs an argument for why he 

believes his trial counsel should have asked these questions that is based on purely speculative 

assumptions of fact that are unsupported by any record evidence. Additionally, there is no 

evidence that Brue’s methodology was unsound or that the telephone numbers in question were 

not actually associated with the respective individuals. 

There is no basis for an appellate court to grant relief on an ineffective assistance of 

counsel claim where there is no record evidence to support it. People v Ginther, 390 Mich 436, 

443; 212 NW2d 922 (1973). A defendant challenging his conviction on the basis that he 

received ineffective assistance of counsel bears the burden of proving his claim. Id. at 442-443. 

“To the extent his claim depends on facts not of record, it is incumbent on him to make a 

testimonial record at the trial court level in connection with a motion for a new trial which 

evidentially supports his claim and which excludes reasonable hypotheses consistent with the 

view that his trial lawyer represented him adequately.” Id. at 443 (quotation marks and citation 

omitted). 

In this case, although we previously denied defendant’s motion to remand for a Ginther

hearing, defendant’s speculative arguments do not demonstrate that defendant is entitled to a 

Ginther hearing for the purposes of exploring whether any of his hypotheses might be true. 

Defendant has not provided this Court with any affidavits or an offer of proof serving to

demonstrate the actual existence of an issue requiring further factual development that would 

advance his claim, and he therefore has not persuaded us that remand for a Ginther hearing is 

necessary. Chapo, 283 Mich App at 368-369; MCR 7.211(C)(1)(a)(ii). Mere conjecture is 

insufficient to warrant a Ginther hearing. See Ginther, 390 Mich at 442 (indicating that an 

evidentiary hearing is only necessary “if there is a factual dispute”); MCR 7.211(C)(1) (requiring 

a motion to remand to be “supported by affidavit or offer of proof regarding the facts to be 

established at a hearing”). Defendant has failed on appeal to overcome the presumption that 

defense counsel employed effective trial strategy in his decisions regarding how to question this 

witness. Rockey, 237 Mich App at 76-77. 
-22-

9. IRRELEVANT TESTIMONY GIVEN BY CROSBY 

Finally, defendant argues that trial counsel performed ineffectively by failing to object to 

portions of Crosby’s testimony relating to his investigation of defendant. Defendant contends 

that this evidence was inadmissible under MRE 402 (providing that only relevant evidence is 

admissible), and MRE 403 (allowing the exclusion of relevant evidence “if its probative value is 

substantially outweighed by the danger of unfair prejudice” or other enumerated concerns). 

Assuming without deciding that defense counsel could have successfully prevented any 

of this challenged evidence16 from coming in at trial by making a timely objection, defendant 

simply asserts on appeal that this evidence “prejudiced” defendant. The testimony cited by 

defendant involved brief, vague statements by Crosby involving Stevenson’s arrest, locating 

phone numbers for defendant, surveillance conducted on defendant, and the fact that Stevenson 

and defendant’s family members made statements. The substance of these statements was not 

repeated by Crosby. In light of all of the trial evidence, including defendant’s own detailed 

statements implicating himself in the crimes, defendant has not demonstrated that there exists a 

reasonable probability that the trial outcome would have been different but for the admission of 

this testimony.17 Strickland, 466 US at 694. 

C. MISCHARACTERIZATION OF TESTIMONY 

Next, defendant argues that the trial court erred in its ruling on defense counsel’s 

objection during the prosecutor’s closing rebuttal argument in which defense counsel claimed 

that the prosecutor was mischaracterizing the testimony. 

 16 While some of the evidence cited by defendant admittedly appears to be irrelevant, we do not 

believe all of it is. For example, the evidence that Stevenson was found in possession of 

Baynham’s Camaro was highly relevant, highly probative, and not unfairly prejudicial. MRE 

402; MRE 403. This evidence tended to show that Stevenson took Baynham’s car after 

Baynham was killed. When coupled with the evidence that defendant was seen with Stevenson 

during the early morning hours of June 15, 2016, and that defendant’s truck was parked outside 

Baynham’s house when Baynham was dropped off that morning by Perkins and Watkins, this 

evidence further tended to support the conclusion that defendant was involved in the crimes.

17 We additionally note that we discern no prejudice that affected the outcome of the trial flowing 

from Crosby’s testimony that defendant “had a prior record, so we were able to get another 

number through the MDOC and develop that phone number.” See Strickland, 466 US at 691-

692 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside 

the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of 

the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance 

necessary to justify reliance on the outcome of the proceeding.”) (citation omitted). Crosby did 

not testify about the number of prior convictions defendant had or the offenses he had apparently 

committed, and defendant stipulated at trial to the fact that he had previously been convicted of a 

felony.
-23-

During rebuttal, the prosecutor stated: 

And who came out of the home after the murder? Who came out of the 

home with the phone? Was it Stevenson? No. The defendant, Mr. Baynham’s 

phone, he got it out of the pocket. 

Defense counsel objected, “That’s actually a total mischaracterization of the testimony.” 

After holding a brief sidebar discussion with the attorneys off the record, the trial court overruled 

the objection and further stated, “It’s up to the jury to determine what the testimony was.” The 

jury was present for this ruling. 

On appeal, defendant argues that the trial court’s ruling was erroneous and that the judge 

should have told the jury what the testimony was. Although we initially note that defendant has 

abandoned this argument by failing to cite any legal authority in support of his argument, Kelly, 

231 Mich App at 640-641, defendant is incorrect in any event. It is well settled that “[i]t is the 

province of the jury to determine questions of fact and assess the credibility of witnesses.” 

People v Lemmon, 456 Mich 625, 636-637; 576 NW2d 129 (1998).

Furthermore, the trial court’s response was consistent with M Crim JI 3.1(3), which states 

as follows: 

As jurors, you must decide what the facts of this case are. This is your 

job, and nobody else’s. You must think about all the evidence and then decide 

what each piece of evidence means and how important you think it is. This 

includes whether you believe what each of the witnesses said. What you decide 

about any fact in this case is final. 

The trial court’s response was also consistent with M Crim JI 3.5, which states in 

pertinent part as follows: 

(1) When you discuss the case and decide on your verdict, you may only 

consider the evidence that has been properly admitted in this case. Therefore, it is 

important for you to understand what is evidence and what is not evidence. 

(2) Evidence includes only the sworn testimony of witnesses [, the exhibits 

admitted into evidence, and anything else I told you to consider as evidence]. 

* * *

(5) The lawyers’ statements and arguments [and any commentary] are not 

evidence. They are only meant to help you understand the evidence and each 

side’s legal theories. You should only accept things the lawyers say that are 

supported by the evidence or by your own common sense and general knowledge. 

The lawyers’ questions to the witnesses [, your questions to the witnesses,] and 

my questions to the witnesses are also not evidence. You should consider these 

questions only as they give meaning to the witnesses’ answers. 
-24-

(6) My comments, rulings, questions, [summary of the evidence,] and 

instructions are also not evidence. It is my duty to see that the trial is conducted 

according to the law, and to tell you the law that applies to this case. However, 

when I make a comment or give an instruction, I am not trying to influence your 

vote or express a personal opinion about the case. If you believe that I have an 

opinion about how you should decide this case, you must pay no attention to that 

opinion. You are the only judges of the facts, and you should decide this case 

from the evidence. [Emphasis added; bracketed material in original.] 

The trial court also gave these same specific instructions to the jury as part of the final 

jury instructions. Based on the cited portion of the prosecutor’s rebuttal and defense counsel’s 

objection in reaction to it, it appears that the prosecutor and defense counsel had different 

recollections about the substance of the evidence that had been presented on this particular point. 

The trial court, in responding to defense counsel’s objection, properly informed the jury that it 

was the task of the jury to resolve this factual dispute by considering that which was the actual 

evidence—the sworn testimony—rather than that which was not evidence—i.e., the lawyers’ 

statements or, as defendant proposes on appeal, a clarification by the trial judge. The trial court 

did not err by instructing the jury that the jury was responsible for determining what the 

testimony was. 

D. PROSECUTORIAL MISCONDUCT 

Defendant next argues that the prosecutor committed “numerous instances of 

prosecutorial misconduct,” denying him his rights to due process and a fair trial. 

“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and 

impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of 

prosecutorial misconduct are decided case by case, and this Court must examine the entire record 

and evaluate a prosecutor's remarks in context.” Id. at 64. Review of preserved allegations of 

prosecutorial misconduct is de novo. People v Ackerman, 257 Mich App 434, 448; 669 NW2d 

818 (2003). However, “[r]eview of alleged prosecutorial misconduct is precluded unless the 

defendant timely and specifically objects, except when an objection could not have cured the 

error, or a failure to review the issue would result in a miscarriage of justice.” Unger, 278 Mich 

App at 234-235 (quotation marks and citation omitted). We review unpreserved claims of 

prosecutorial misconduct for plain error affecting substantial rights. Ackerman, 257 Mich App at 

448. “[W]e cannot find error requiring reversal where a curative instruction could have 

alleviated any prejudicial effect.” Unger, 278 Mich App at 235 (quotation marks and citations 

omitted). Indeed, “[c]urative instructions are sufficient to cure the prejudicial effect of most 

inappropriate prosecutorial statements, and jurors are presumed to follow their instructions.” Id. 

(citations omitted). 

In this case, defendant raises five claims of prosecutorial misconduct. First, defendant 

argues that the prosecutor committed misconduct by “mischaracterizing testimony and arguing 

facts not in evidence” during rebuttal arguments. This claim rests on the same portion of the 

prosecutor’s argument quoted above in Part II(C) of this opinion. While it appears that the 

prosecutor’s statement conflicted with Evans’s testimony about what defendant had said about 

who removed the cell phone from Baynham’s pocket, the prosecutor’s statement that defendant 
-25-

had Baynham’s cell phone when defendant left the house was consistent with Evans’s testimony. 

It seems that the prosecutor incorrectly recalled the substance of the testimony in this relatively 

minor respect. Nonetheless, defense counsel objected and the trial court instructed the jury that 

it was the jury’s task to determine what the testimony was. As we explained previously, this 

instruction was proper. Therefore, any potential prejudicial effect was extinguished by this 

curative instruction, Unger, 278 Mich App at 235, and defendant has not shown that he was 

denied a fair and impartial trial as a result of this remark, Dobek, 274 Mich App at 63-64. 

Next, defendant argues that the prosecutor engaged in misconduct by “repeatedly 

violat[ing] the court’s hearsay order regarding evidence of a non-testifying co-defendant’s 

custodial statement implicating [defendant] during examination and closing argument . . . . ” 

Defendant apparently relies on the same portions of the record referring to statements allegedly 

made by Stevenson that we have already discussed in the context of defendant’s Confrontation 

Clause and ineffective assistance of counsel claims. As we have already explained, no evidence 

was admitted at trial of the substance of any statement allegedly made by Stevenson. Defense 

counsel, while successfully preventing such statements from being admitted by objecting on 

hearsay grounds, never requested any type of curative instruction. Any potential for prejudice 

that remained after defense counsel’s successful objections or that could be tied to the 

prosecutor’s brief rebuttal statement that “Stevenson talked” could have been cured by an 

appropriate instruction, which makes reversal on prosecutorial misconduct grounds unwarranted. 

Unger, 278 Mich App at 235. 

Defendant next argues that the prosecutor engaged in further misconduct during rebuttal 

by (1) bolstering the testimony of Evans; (2) arguing facts not in evidence in stating that the call 

records showing defendant’s cell phone calls during the early morning hours of June 15, 2016, 

demonstrated that defendant did not have any remorse and was telling Giovanni Bossman what 

had happened; and (3) that the prosecutor made an improper civic duty argument in presenting a 

hypothetical example that he claimed illustrated the rationale behind the aiding and abetting rule. 

Defendant did not object to any of these alleged instances of misconduct. We are convinced 

from our review of the record that none of these statements contain any potential for prejudicial 

effect that could not have been removed by a proper curative instruction, and defendant has 

therefore not established error requiring reversal based on these statements. Unger, 278 Mich 

App at 235. 

E. DOUBLE JEOPARDY 

Defendant argues that the trial court clearly erred by denying defendant’s motion to bar 

his retrial due to prosecutorial misconduct. 

Defendant’s first trial ended in a mistrial with respect to him,

18 due to issues surrounding 

a police officer’s testimony about a search that was conducted of defendant’s home and the 

 18 At the first trial, defendant was tried jointly with Stevenson. Defendant and Stevenson had 

separate juries. The trial continued with respect to Stevenson. 
-26-

prosecutor’s failure to provide defendant with discovery material related to that search. 

Specifically, the prosecution presented police officer testimony regarding a search of defendant’s 

home. After this testimony, defense counsel informed the trial court that he had not been 

provided with discovery material related to the search, including a copy of the warrant used to 

justify the search. The prosecutor was subsequently unable to actually produce a signed copy of 

this warrant. Defense counsel moved for a mistrial. 

The prosecutor objected to the mistrial, arguing that he had previously shown defense 

counsel photographs of the evidence collected from the search (which were admitted into 

evidence during the officer’s testimony), that he believed these photographs were in the 

discovery provided for defense counsel, and that defense counsel did not object to the 

introduction of these photographs into evidence during the police officer’s testimony at trial. 

The prosecutor admitted that the search warrant had not been turned over to defense counsel and 

that the actual signed copy had not been located, but the prosecutor further argued that there was 

an activity log showing that a magistrate signed the warrant. The prosecutor also stated that he 

did not “think that [defense counsel was] being genuine . . . [by] saying that [he] had no notice 

and they didn’t see the items.” The prosecutor maintained that defense counsel should have 

objected before the challenged evidence was admitted at trial rather than waiting until the jury 

was presented with the evidence. Defense counsel argued that he was “blind-sided” by the 

evidence related to the search warrant, was not given the photographs of the evidence from the 

search, had not previously seen the photographs, and was confused and surprised when they were 

introduced into evidence. 

Defendant indicated under oath that he consented to a mistrial and that he understood that 

he could be retried and that jeopardy would not attach. The trial court granted a mistrial with 

respect to defendant. 

Before defendant’s second trial commenced, defendant moved to bar retrial on Double 

Jeopardy Clause grounds, arguing that the prosecutor had intentionally “provoked” defendant’s 

mistrial motion through repeated failures to provide timely discovery material. A motion hearing 

was held, and the trial court denied defendant’s motion. The court ruled that it did not find the 

prosecutor’s conduct in this case to have been intentional misconduct and that it was, at most, 

negligence or mistake. 

On appeal, defendant argues that the prosecutor’s failures with respect to providing 

timely discovery demonstrated an intent to provoke a mistrial, such that defendant was not 

constitutionally subject to being retried. 

“A constitutional double jeopardy challenge presents a question of law that we review de 

novo.” People v Lett, 466 Mich 206, 212; 644 NW2d 743 (2002). A trial court’s related factual 

findings regarding whether the prosecution intended to “goad” the defense into moving for a 

mistrial are reviewed for clear error. People v Dawson, 431 Mich 234, 258; 427 NW2d 886

(1988). “A finding of fact is clearly erroneous if, after a review of the entire record, an appellate 

court is left with a definite and firm conviction that a mistake has been made.” People v 

Antwine, 293 Mich App 192, 194; 809 NW2d 439 (2011) (quotation marks and citation omitted). 
-27-

Both the Double Jeopardy Clause of the United States Constitution and the analogous 

provision of the Michigan Constitution prohibit an accused from being “ ‘twice put in jeopardy’ 

for the same offense.” Lett, 466 Mich at 213, citing US Const, Am V; Const 1963, art 1 § 15.

“The Double Jeopardy Clause does not bar all retrials.” Dawson, 431 Mich at 252. As 

specifically relevant here, “[w]here the motion for mistrial was made by defense counsel, or with 

his consent, and the mistrial was caused by innocent conduct of the prosecutor or judge, or by 

factors beyond their control, or by defense counsel himself, retrial is . . . generally allowed, on 

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

claim.” Id. at 253. 

However, the United States Supreme Court has recognized that there this is a “narrow 

exception” to the general rule that the Double Jeopardy Clause does not bar the retrial of a 

defendant who moves for a mistrial. Oregon v Kennedy, 456 US 667, 673; 102 S Ct 2083; 72 L 

Ed 2d 416 (1982). In Kennedy, the Supreme Court held that when a criminal defendant 

successfully moves for a mistrial, “the circumstances under which such a defendant may invoke 

the bar of double jeopardy in a second effort to try him are limited to those cases in which the 

conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant 

into moving for a mistrial.” Id. at 679. In other words, “[o]nly where the governmental conduct 

in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise 

the bar of double jeopardy to a second trial after having succeeded in aborting the first on his 

own motion.” Id. at 676. Examining the prosecutor’s intent requires the trial court to make a 

factual finding by “[i]nferring the existence or nonexistence of intent from objective facts and 

circumstances.” Id. at 675. “Prosecutorial conduct that might be viewed as harassment or 

overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar 

retrial absent intent on the part of the prosecutor to subvert the protections afforded by the 

Double Jeopardy Clause. Id. at 675-676. 

In Dawson, our Supreme Court “adopt[ed] the federal standard and [held] that retrial is 

barred where the prosecutor intended to goad the defendant into moving for a mistrial.” 

Dawson, 431 Mich at 236. The Dawson Court explained: 

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

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

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

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

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

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

(citation omitted).] 

In this case, the objective facts and circumstances in the record do not support a 

conclusion that the trial court’s finding was clearly erroneous. While the prosecutor’s negligence 

with respect to handling discovery matters is evident from the record, there is nothing in the 

record that would objectively support an inference that the prosecutor harbored an intent to 

circumvent the protections of the Double Jeopardy Clause by provoking or goading defense 

counsel into moving for a mistrial. Kennedy, 456 US at 675-676. We are not left with a firm 

and definite conviction that the trial court made a mistake by finding that the prosecutor did not 
-28-

intend to goad defendant into moving for a mistrial. Accordingly, there was no double jeopardy 

bar to retrying defendant. Id. at 679; Dawson, 431 Mich at 236, 257.

F. “UNAVAILABLE” WITNESS 

Defendant argues that the trial court erred by ruling that Brown was not an unavailable 

witness for purposes of allowing defendant to admit Brown’s testimony from the first trial into 

evidence at the second trial. 

Under MRE 804(b)(1), there is a hearsay exception for former testimony that may apply 

if, among other things, “the declarant is unavailable as a witness. The relevant definition of 

unavailability for purposes of the instant case is found in MRE 804(a)(5), which provides in 

pertinent part that a declarant is unavailable as a witness if the declarant “is absent from the 

hearing and the proponent of a statement has been unable to procure the declarant’s attendance . . 

. by process or other reasonable means, and in a criminal case, due diligence is shown.” 

The test for unavailability under MRE 804(a)(5) is that the proponent “must have made a 

diligent good-faith effort in its attempt to locate a witness for trial.” People v Bean, 457 Mich 

677, 684; 580 NW2d 390 (1998). “The test is one of reasonableness and depends on the facts 

and circumstances of each case, i.e., whether diligent good-faith efforts were made to procure the 

testimony, not whether more stringent efforts would have produced it.” Id. The trial court’s 

determination will only be reversed if a “clear abuse of discretion” has been established on 

appeal. Id. “Preliminary questions of law, such as whether a rule of evidence, constitutional 

provision, or statute precludes the admission of the evidence, are reviewed de novo.” People v 

Jones, 270 Mich App 208, 211; 714 NW2d 362 (2006). 

In this case, defense counsel asked the trial court to declare Brown “unavailable” as a 

witness, despite having declined the trial court’s offer to order police officers to pick Brown up 

with a witness detainer. Although defense counsel detailed his other attempts to contact Brown, 

he expressly chose not to take advantage of a powerful tool for obtaining Brown’s attendance at 

trial. Under these circumstances, to choose not to even make an attempt to have the police 

compel Brown’s attendance demonstrates that the test for unavailability under MRE 804(a)(5) 

was not satisfied. Defendant has not shown that the trial court erred in its ruling. 

G. JUDICIAL MISCONDUCT 

Finally, defendant argues that the trial judge committed judicial misconduct by indicating 

to the jury at the close of the third day of trial that “we’ll hear from defense witnesses in the 

morning,” without being certain that defendant’s witnesses would actually appear. Defendant’s 

witness did not appear, and defendant did not testify. Defendant has not cited any legal authority 

to support his argument that this constitutes judicial misconduct and has therefore abandoned this 

issue on appeal. Kelly, 231 Mich App at 640-641. 

In any event, it appears from defense counsel’s representations to the trial court on the 

fourth day of trial, which defense counsel made in the context of asking to have Brown declared 

an unavailable witness that defense counsel had informed the trial court on the third day of trial 

that he planned to call Brown as a witness. Defense counsel was subsequently unable to contact 
-29-

Brown before the morning of the fourth day of trial. We thus do not see how the judge’s conduct 

could be considered to have “improperly influenced the jury by creating the appearance of 

advocacy or partiality against a party,” such that the judge’s conduct could be considered to have 

pierced the “veil of judicial impartiality” and denied defendant a fair trial. People v Stevens, 498 

Mich 162, 170-171; 869 NW2d 233 (2015). 

Affirmed.

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle 

/s/ Thomas C. Cameron