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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

August 11, 2015 

v No. 321330 

Van Buren Circuit Court 

RAY EDWARD BARRY, LC No. 13-018741-FC 

 Defendant-Appellant. 

Before: TALBOT, P.J., and K. F. KELLY and SERVITTO, JJ. 

PER CURIAM. 

 A jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), and 

he was sentenced to life imprisonment. Finding no errors warranting reversal, we affirm. 

I. BASIC FACTS 

 On December 9, 2002, the 19-year-old victim, Christopher Green (Chris), was murdered 

on 60th Street in Bangor, Michigan. He had suffered multiple stab wounds, as well as blunt force 

trauma to the head. The case went “cold” and was not solved until 2011. It was the 

prosecution’s theory that defendant killed Chris because he was jealous of Chris’s relationship 

with their neighbor, Lisa Cousins (Lisa). It was the defense’s theory that Lisa’s angry and 

abusive father, Floyd Cousins (Floyd), was the true murderer. There was no real physical 

evidence connecting defendant to the crime, but he confided in at least three individuals that he 

was the one who killed Chris. Additionally, footprint castings taken at the scene of the crime 

matched the type of tennis shoes that defendant owned near the time of the murder. 

II. MOTION TO QUASH 

 Defendant argues that the district court abused its discretion in binding over defendant to 

the circuit court on open murder charges and that the circuit court then erred by refusing to quash 

the information. Defendant points to the fact that there was no physical evidence or eyewitness 

testimony linking defendant to the killing and that the bindover was based primarily on the 

unreliable statements defendant made to his half-brother, Claude Taylor (Claude). Defendant 

argues that Claude’s testimony was incredible because he only testified to secure leniency in his 

prosecution on unrelated criminal charges. Defendant maintains that the district court 

misapprehended its role and refused to weigh the credibility of the witnesses before it. We 

disagree. 
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 A decision to bind over a defendant is reviewed for an abuse of discretion. People v 

Flick, 487 Mich 1, 8-9; 790 NW2d 295 (2010); People v Henderson, 282 Mich App 307, 312; 

765 NW2d 619 (2009). 

In reviewing the bindover decision, a circuit court must consider the entire record 

of the preliminary examination and may not substitute its judgment for that of the 

district court. The decision to bind over a defendant may only be reversed if it 

appears on the record that the district court abused its discretion. This Court also 

reviews the bindover decision de novo to determine whether the district court 

abused its discretion. Thus, this Court gives no deference to the circuit court’s 

decision. [Henderson, 282 Mich App at 312-313 (internal citations omitted).] 

“A trial court abuses its discretion when its decision falls outside the range of reasonable and 

principled outcomes.” People v Waterstone, 296 Mich App 121, 131-132; 818 NW2d 432 

(2012). 

 The primary function of the preliminary examination is to determine whether a crime has 

been committed and, if so, whether there is probable cause to believe that the defendant 

committed it. People v Plunkett, 485 Mich 50, 57; 780 NW2d 280 (2010). If, at the conclusion 

of the hearing, it appears to the magistrate that there is probable cause to believe that a felony has 

been committed and that the defendant committed it, the magistrate must bind over the defendant 

for trial. MCL 766.13; MCR 6.110(E); People v Corr, 287 Mich App 499, 502-503; 788 NW2d 

860 (2010). 

 Probable cause that the defendant has committed the crime is established by evidence 

sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a 

reasonable belief of the defendant’s guilt. Plunkett, 485 Mich at 57. To establish that a crime 

has been committed, a prosecutor need not prove each element beyond a reasonable doubt, but 

he must present some evidence of each element. Henderson, 282 Mich App at 312. 

Circumstantial evidence and reasonable inferences from the evidence can be sufficient. Id. 

 Defense counsel objected to the prosecutor’s request to bind defendant over on an open 

murder charge, arguing that the prosecution presented only unreliable statements that defendant 

allegedly made to third parties. Antonio Harris (Antonio), to whom defendant allegedly 

admitted he killed Chris, testified that he did not take defendant seriously because he was always 

trying to make himself a part of the story. Claude was motivated by self-interest and that the 

admission defendant made to Claude was made while the two were drinking alcohol and 

smoking marijuana. The prosecutor responded: “We believe credibility of witnesses in this case 

is to be decided by the jury if you find that there’s probable cause based on the statements and 

we think that we don’t have an extraordinary issue regarding credibility here.” 

 The district court concluded: 

 First, based upon the testimony of [the pathologist], I can find that the 

cause of death was the multiple stab wounds . . . 

 The question then becomes where do we go from there and this is a 

probable cause hearing. This is not a proof beyond a reasonable doubt. The 
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Court has always taken the position that credibility is one for the trier of fact and 

not for this Court. That’s what I’ve always held in the last ten-plus years and 

what I’m going to do today. 

 Many of the arguments, Mr. DuBay [defense counsel], that you make in 

this matter are arguments that will be raised in front of the jury in this matter 

because this Court can easily find probable cause that back on December 9th, 

2002, Ray Edward Barry was in Geneva Township, Van Buren County, and based 

upon his own statements, he beat up, stabbed, and chased Mr. Green down. He 

thought Mr. Green was – yeah, was breaking into the house. That was one 

conversation he had with Mr. [Claude] Taylor. Another conversation was that, 

um, he was told by Green, please don’t kill me several times as he was beating 

him and stabbing him. This Court can easily find probable cause that Mr. Barry 

did murder, caused the death of Christopher Green, that it was not justified, and 

based upon the actions that first degree, premeditated murder would be – could be 

substantiated by the record at this point in time so I am going to bind over Mr. 

Barry. 

 In the circuit court, defendant moved to quash the information, making the same 

arguments as in the district court. Importantly, defense counsel also argued that the district court 

misunderstood its role by refusing to assess the credibility of the witnesses. In denying 

defendant’s motion to quash, the trial court noted that it had “no right to substitute its judgment 

for that of [the] District Court.” 

 We agree that the district court did not abuse its discretion in binding defendant over for 

trial. Contrary to defendant’s contention, the district court did not summarily refuse to consider 

the witnesses’ credibility; instead, he noted that any questions related to credibility, including 

potential impeachment, were for the ultimate trier of fact. Although the magistrate may weigh 

the credibility of the witnesses, if the evidence conflicts or raises a reasonable doubt, the 

defendant should be bound over for resolution of the questions by the trier of fact. Henderson, 

282 Mich App at 312; see also People v Yost, 468 Mich 122, 128; 659 NW 2d 604 (2003) (while 

“a magistrate in determining whether a crime has been committed has not only the right, but the 

duty, to pass judgment on the credibility of the witnesses . . . we have also instructed examining 

magistrates to not refuse to bind a defendant over for trial when the evidence conflicts or raises 

reasonable doubt of the defendant’s guilt.”); People v Goecke, 457 Mich 442, 469-470; 579 

NW2d 868 (1998) (“It is not . . . the function of the examining magistrate to discharge the 

accused when the evidence conflicts or raises a reasonable doubt of the defendant’s guilt; that is 

the province of the jury.”); People v Redden, 290 Mich App 65, 84; 799 NW2d 184 (2010) (“If 

the evidence conflicts or raises a reasonable doubt concerning the defendant’s guilt, the 

defendant should nevertheless be bound over for trial, at which the trier of fact can resolve the 

questions.”). 

 In addition, defendant attacks Claude’s credibility but is silent on the remaining 

testimony from the preliminary examination. Even if Claude cooperated with the prosecution 

out of self-interest, his testimony was supported by the testimony of two other witnesses – 

Jeanine Black (Jeanine) and Antonio – both of whom heard incriminating statements from 

defendant. There was no question that Chris was murdered. Defendant lived in close proximity 
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to where the murder occurred and also made several incriminating statements. Therefore, the 

district court did not abuse its discretion in binding over defendant for trial and the trial court did 

not err in refusing to quash the information. Additionally, as will be discussed further below, 

“[i]f a defendant is fairly convicted at trial, no appeal lies regarding whether the evidence at the 

preliminary examination was sufficient to warrant a bindover.” People v Wilson, 469 Mich 

1018; 677 NW2d 29 (2004) 

III. LOST EVIDENCE 

 Defendant next argues that the trial court should have dismissed the charges against 

defendant once it was discovered that critical evidence was lost. We disagree. 

 “A trial court’s decision on a motion to dismiss is reviewed for an abuse of discretion.” 

People v Hartwick, 303 Mich App 247, 255; 842 NW2d 545 (2013) app gtd 496 Mich 851 

(2014). Defendant’s claim that he was denied due process is reviewed de novo. People v 

Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007). 

 Crime scene technicians removed Caucasian hairs from the victim’s left hand. The 

Michigan State Crime Lab did not perform mitochondrial testing, so, at defense counsel’s 

request, the trial court entered a consent order authorizing such testing up to $4,000 at Speckin 

Forensic Laboratory – a lab that was mutually agreeable to both defendant and the prosecutor. 

 Thereafter, defendant moved to quash the information and dismiss the case with 

prejudice because the hairs never arrived at Speckin Lab. For his part, the prosecutor filed a 

motion in limine to preclude defendant from referring to any lost evidence during trial. At the 

hearing on the motions, defense counsel pointed out that the police had opted to send the samples 

via first-class mail as opposed to personally transporting the evidence. He argued that the 

evidence was critical, in part, to combat the prosecutor’s claim that the hairs may have belonged 

to Chris. Counsel stated that “hair is not found in defensive wounds when it is your own hair” 

and testing may have bolstered defendant’s theory of third-party culpability. The trial court 

noted that the fact that the hairs were allegedly Caucasian could be presented at trial, even absent 

a lab confirming as much. Defense counsel maintained that arguing it was a Caucasian hair 

would not have the “same force” as the lab results confirming that assertion. He maintained that, 

regardless of whether the actions of the police were intentional, reckless, or otherwise, defendant 

was entitled to the same remedy – dismissal. The prosecutor explained that the postal server 

signed the received receipt on behalf of Speckin Labs (as was his practice) because he was trying 

to do the lab a favor, leaving the envelope in a drop box. There may have been some criminal 

act of a third party that prevented the lab from testing the envelope or it may have been the lab’s 

own lackadaisical treatment of evidence. 

 The trial court denied defendant’s motion to dismiss and also denied the prosecution’s 

motion in limine. It ruled: 

 The Court finds in this case that the evidence was not – is not established 

to be clearly materially exculpatory. As indicated in the prosecution’s brief, the 

fact that it is a Caucasian hair is still coming into evidence. The defense 

acknowledges that we don’t know what these results would have been and the 
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defense acknowledges that it could have been the decedent’s hair and that would 

not be exculpatory. 

 Is this unfortunate? Certainly this is unfortunate. Can both sides – would 

both sides have liked the advantage of this result once the Court ordered the 

testing? Certainly. 

 The Court obviously does not approve of the missing evidence, but the 

question for the Court is first, whether or not the defense has established it to be 

clearly materially exculpatory and I don’t believe that the Defense has because we 

don’t know what the results are. One result if it were the decedent’s hair, it would 

not have helped the defense. And any way, in fact, it is probably more helpful to 

the defense to be able to argue that we don’t know whose hair it is than to have a 

result that it was the decedent’s hair. So, the defense has not met that burden. 

 The next question is whether the defense has been able to show bad faith 

on behalf of the police or the government. And the Court finds there was no bad 

faith, that simply this is literally a case of evidence being lost in the mail. 

Nothing has been presented to the Court that the chain of custody method chosen 

in this case was somehow an intentional deviation from policy and procedure with 

the hope that the evidence would be lost. There has been an argument in that 

regard, but I have nothing to substantiate that argument. The U.S. mail certified 

receipt is a legitimate and reliable service and no one would have expected that 

the U.S. postal service person would drop it in a box and sign himself as the 

person receiving the evidence. I don’t think anyone could have possibly 

anticipated this result, including the police or the government. 

 So, your request for dismissal because of the lost evidence through no 

fault of either the defense or the prosecution is denied. 

The trial court denied the prosecutor’s motion to keep the missing evidence from the jury, saying 

“the Jury is going to hear about this hair.” The prosecution was precluded from suggesting that 

the lab was negligent. Instead, the trial court wanted the jury to hear that the evidence was 

attempted to be tested and, through no fault of either party, it was lost. 

 After eliciting evidence that the hairs had been lost and, therefore, never tested, defense 

counsel argued during closing: 

 You know, the Prosecutor says it’s – it’s too bad that the Caucasian head 

hair is lost and it really is. I don’t know why it wasn’t tested years ago. 

Enforcement knows that in the course of a struggle, somebody trying to save their 

life, they’re tugging and pulling, they’re grabbing, they’re clawing. They’re 

going to grab some head hair and, lo and behold, the victim, the decedent in this 

case, had head hair stuck to his hands. It wasn’t – it wasn’t just head hair. It was 

Caucasian head hair. Now the Prosecutor can say, well, very easily, well, that 

was just – that was just Chris’[s] hair. Well, if it’s Chris’[s] hair, test it and show 

it to us. Prove it to us. Why does defense have to ask for that? The reason they 
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didn’t test it is because if it was Chris’[s], it wouldn’t help their case, it was just 

Chris’[s]. But if it wasn’t Chris’[s], now the focus is off Ray because if it’s 

Caucasian head hair and the last time I looked, Ray’s not Caucasian. That’s why 

they didn’t want to test it. That’s why it wasn’t tested. 

 Later, the trial court instructed the jury: “There [has] been reference made to hair 

samples labeled L-29 and L-30. There has been evidence that these hair samples were ordered to 

be tested. Through no fault of either the prosecutor or the defense, in the process of transfer for 

testing, these items were lost in the mail.” 

 “A criminal defendant can demonstrate that the state violated his or her due process rights 

under the Fourteenth Amendment if the state, in bad faith, failed to preserve material evidence 

that might have exonerated the defendant;” however, “[i]f the defendant cannot show bad faith or 

that the evidence was potentially exculpatory, the state’s failure to preserve evidence does not 

deny the defendant due process.” People v Heft, 299 Mich App 69, 79; 829 NW2d 266 (2012). 

Thus, where evidence is of unknown probative value, and only potentially exculpatory, loss of 

the evidence denies due process only when the police act in bad faith. Arizona v Youngblood, 

488 US 51, 57-58; 109 S Ct 333; 102 L Ed 2d 281 (1988). The United States Supreme Court 

explained: 

 The Due Process Clause of the Fourteenth Amendment, as interpreted in 

Brady [v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963)], makes the 

good or bad faith of the State irrelevant when the State fails to disclose to the 

defendant material exculpatory evidence. But we think the Due Process Clause 

requires a different result when we deal with the failure of the State to preserve 

evidentiary material of which no more can be said than that it could have been 

subjected to tests, the results of which might have exonerated the defendant. Part 

of the reason for the difference in treatment is found in the observation made by 

the Court in [California v] Trombetta, 467 US [479,] at 486, 104 S Ct at 2532, 

that “[w]henever potentially exculpatory evidence is permanently lost, courts face 

the treacherous task of divining the import of materials whose contents are 

unknown and, very often, disputed.” Part of it stems from our unwillingness to 

read the “fundamental fairness” requirement of the Due Process Clause [] as 

imposing on the police an undifferentiated and absolute duty to retain and to 

preserve all material that might be of conceivable evidentiary significance in a 

particular prosecution. We think that requiring a defendant to show bad faith on 

the part of the police both limits the extent of the police’s obligation to preserve 

evidence to reasonable bounds and confines it to that class of cases where the 

interests of justice most clearly require it, i.e., those cases in which the police 

themselves by their conduct indicate that the evidence could form a basis for 

exonerating the defendant. We therefore hold that unless a criminal defendant 

can show bad faith on the part of the police, failure to preserve potentially useful 

evidence does not constitute a denial of due process of law. [Youngblood, 488 US 

at 57-58.] 
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Importantly, “[d]efendant bears the burden of showing that the evidence was exculpatory or that 

the police acted in bad faith.” People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 

(1992). 

 Defendant failed to show that the evidence was exculpatory. As the trial court aptly 

noted, this was not a situation where the exculpatory nature of the evidence was readily apparent 

before it was lost. The hairs may have belonged to any number of Caucasian individuals, 

including Chris himself. The fact that the hair may have belonged to another party did not 

negate the fact that defendant had confessed to being the killer. 

 In addition, defendant failed to show evidence of bad faith on the part of the police or the 

prosecution. The record revealed that the hair fibers were not available because they were lost. 

It was a postal worker’s interference that prevented the evidence from being tested. Defendant 

has not produced any evidence suggesting that the prosecution or the police actively suppressed 

the evidence or that they undertook any effort to prevent defendant from having the evidence 

tested. Rather, on this record, the evidence suggested that the evidence was lost through no fault 

of either party. 

 Finally, defendant was not entitled to an adverse inference jury instruction. An adverse 

jury instruction regarding missing evidence is only appropriate where bad faith has been shown. 

People v Davis, 199 Mich App 502, 514; 503 NW2d 457 (1993), overruled on other grounds in 

People v Grissom, 492 Mich 296; 821 NW2d 50 (2012). 

 In conclusion, the trial court did not abuse its discretion in denying defendant’s motion to 

dismiss the charges. The exculpatory value of the evidence was not readily apparent and there 

was no bad faith. Given the lack of bad faith, defendant was not entitled to an adverse inference 

jury instruction. 

IV. MRE 404(b) EVIDENCE 

 Defendant argues that the trial court abused its discretion when it refused to allow 

defendant to present evidence that Floyd had previously choked his daughter with a wooden stick 

because such evidence would have supported defendant’s theory that Floyd, not defendant, was 

the killer. We disagree. 

 “A trial court’s discretionary decisions concerning whether to admit or exclude evidence 

will not be disturbed absent an abuse of that discretion. When the decision involves a 

preliminary question of law[,] however, such as whether a rule of evidence precludes admission, 

we review the question de novo.” People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010) 

(internal quotations and footnotes omitted). 

 When the trial court granted defendant’s motion to introduce evidence of third-party 

culpability, it warned defense counsel that the same rules of evidence would apply: “So by no 

means in this ruling am I ruling that you are not bound by the same rules of evidence that the 

prosecution is bound to in this case.” 

 At a January 16, 2014 hearing, defense counsel sought to have the testimony of Beth 

Blomquist (Beth) admitted under MRE 404(b). Beth allegedly witnessed Floyd Cousins use a 
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small tree branch to physically assault another person. Chris died of blunt force trauma with a 

tree branch lying across his body and defense counsel argued that Beth’s testimony was relevant 

to show scheme, plan, or system of doing an act. The trial court asked defendant to call Beth as 

an offer of proof. Beth did not remember the date of the incident, but she remembered seeing 

Floyd assault his daughter, Bobbie. He had been drinking and got “upset at Bobbie for 

something” and “choked her on the table with this long thick stick, it was the wood poker.” Beth 

described the object as “like a tree branch” with the bark taken off. She was scared for Bobbie 

because Floyd was strangling her. 

 In denying defendant’s motion, the trial court noted: 

 Okay. Defendant seeks to introduce this evidence as indicated in the 

notice under 404(b) stating that the evidence shows a plan or scheme or some type 

of modus operandi of Floyd Cousins or a signature crime, if you will. The Court 

finds that – that the threshold has not been met in this case. The Court finds that 

although it may show him to be assaultive, it’s not being sought to be introduced 

under any theory of that nature. The Court finds there is insufficient evidence to 

show a signature crime. The previous incident involved a tool that had been used 

for another purpose, and a choking incident. This case bears none of that. It’s a 

stabbing case. There is some blunt trauma, and there is a tree branch on the body. 

So I don’t think that we have the sufficient and significant nexus necessary to 

allow it in. As well, and in addition, the Court finds that any probative value of 

that testimony would be outweighed by confusion of the issues and unfair 

prejudice in this case so that evidence will not be allowed. 

 On appeal, defendant argues that that evidence of Floyd’s attack on Bobbie was 

admissible under MRE 404(b)(1), which 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. 

To be admissible under MRE 404(b), generally bad acts evidence: (1) must be offered for a 

proper purpose, (2) must be relevant, and (3) must not have a probative value substantially 

outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d 

366 (2004). A proper purpose is one other than establishing the actor’s character to show his 

propensity to commit the offense. People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114 

(1993), mod 445 Mich 1205 (1994). The court rule applies to the admissibility of evidence of “a 

person” and, therefore, is not strictly limited to criminal defendants. People v Rockwell, 188 

Mich App 405, 410; 470 NW2d 673 (1991). 

 Defendant argues that evidence of Floyd’s altercation with Bobbie was admissible to 

prove identity. When introduced to establish identity, the party seeking to introduce the evidence 
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has the heavy burden “to show that the manner in which the crime charged and the other crimes 

were committed was marked with special characteristics so uncommon, peculiar and distinctive 

as to lead compellingly to the conclusion that all were the handiwork of the [the same individual] 

because all bore his distinctive style or ‘touch’.” People v Golochowicz, 413 Mich 298, 325; 319 

NW2d 518 (1982).1 

 Where . . . the only conceivable justification for admission of [] similaracts evidence is to prove the identity of the perpetrator, the link is forged with 

sufficient strength to justify admission of evidence of the separate offense only 

where the circumstances and manner in which the two crimes were committed are 

“[s]o nearly identical in method as to earmark [the charged offense] as the 

handiwork of the accused. Here much more is demanded than the mere repeated 

commission of crimes of the same class, such as repeated burglaries or thefts. 

The [commonality of circumstances] must be so unusual and distinctive as to be 

like a signature.” McCormick, Evidence (2d ed), § 190, p. 449.

 It is because of the combined value of those two factors, the unique and 

uncommonly distinctive style employed by the [actor] in committing the 

“substantially proved” uncharged similar offense, and the same distinctive modus 

operandi employed in the charged offense, that the jury is permitted to infer, if it 

believes the evidence, that both crimes were the handiwork of the same person . . . 

[Golochowicz, 413 Mich at 321-322.] 

 The trial court did not abuse its discretion in prohibiting defendant from introducing 

evidence of Floyd’s encounter with Bobbie in order to show that Floyd was the true killer. The 

two offenses were distinct. In the incident with Bobbie, Floyd allegedly choked her with a stick 

that the family used for its wood stove. There was no evidence that Floyd threatened Bobbie 

with a knife. In contrast, Chris suffered blunt force trauma to the face and head and had been 

stabbed repeatedly. Although a log was found near the body there was no DNA evidence found 

on the log showing that it was the instrument that was used to inflict the injuries. The only 

shared feature between the two acts was aggression. “It will not suffice that the ‘like act’ be 

simply another crime of the same general category or even of the same specific character. . . . It 

is the uniqueness and the distinctiveness with which both crimes were committed, combined with 

the proof that the [actor] committed the ‘like act’, that is the key.” Id. at 311. The proposed 

other acts evidence in this case were not “marked with special characteristics so uncommon, 

 

1

 “Although the VanderVliet Court adopted a new test for admission of evidence under MRE 

404(b), the four-part test of People v Golochowicz, 413 Mich 298, 309, 319 NW2d 518 (1982), 

remains valid to show logical relevance where similar-acts evidence is offered to show 

identification through modus operandi.” People v Ho, 231 Mich App 178, 186; 585 NW2d 357 

(1998). 
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peculiar and distinctive as to lead compellingly to the conclusion that all were the handiwork of 

defendant because all bore his distinctive style or ‘touch’.” Id. at 325.2

 

V. AUTOPSY PHOTOS 

 Defendant next argues that certain photographs were unduly inflammatory. We disagree. 

 “The decision to admit or exclude photographs is within the sole discretion of the trial 

court.” People v Mills, 450 Mich 61, 76; 537 NW2d 909, mod 450 Mich 1212 (1995). 

 The prosecutor had marked as exhibits 30-36, which were seven autopsy photographs and 

defendant objected. The trial court ruled: 

The Court finds that the – the probative nature of these photographs as they are 

outweighs any danger of unfair prejudice. 

 The Court notes that all of the photos are very precise to the wound at 

hand. There appears to be no attempt to put before the Jury any grandeur photos 

which might inflame the Jury in any way. The record should reflect I did meet 

with counsel and the Prosecuting Attorney had available to him a variety of other 

photographs and after a conference with counsel, the Prosecutor withdrew his 

request to introduce some other photographs which were frankly a bit more 

gruesome. 

 The Defendant has pleaded not guilty to this charge. That puts into issue 

all of the elements of the offense. Intent to kill is an element of the offense. The 

nature and the extent of the injuries goes to that element so the Court will allow in 

the photographs. 

 The pathologist reviewed exhibits 30-36, which the court received into evidence. 

Exhibits 30-32 show stab wounds to the body. Exhibits 33-34 show the victim’s hands. Exhibit 

35 shows the through-and-through scalp injury. Defendant concedes that there is nothing 

objectionable about any of those photos. 

 Defendant argues that a picture of the victim’s bloody face and a picture of the bloody 

and battered body were inappropriately admitted into evidence over objection. However, as the 

prosecutor notes, the image of the victim’s body in the body bag was never admitted into 

 

2

 Neither does the “doctrine of chances” apply. The doctrine has been used in certain 

circumstances to show that incidents of unusual events related to an individual are not the result 

of natural causes. People v Mardlin, 487 Mich 609, 616; 790 NW2d 607 (2010). The Mardlin 

Court used the theory in an arson case: “The fires here were admissible precisely because they 

constituted a series of similar incidents—fires involving homes and vehicles owned or controlled 

by defendant—the frequency of which objectively suggested that one or more of the fires was 

not caused by accident.” Id. at 619. 
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evidence. While the photograph to which counsel objects is contained on the CD supplied by 

defense counsel, it is clear from the record that it was never admitted into evidence. The jury 

never viewed that photo. 

 Therefore, the only remaining objectionable photo is a close-up of the victim’s battered 

face, showing a laceration to the left side of his nose. Defendant complains that Dr. Hunter’s 

testimony supplied the jury with all it needed to know in terms of the cause and manner of death, 

however, “photographs are not excludable simply because a witness can orally testify about the 

information contained in the photographs.” Mills, 450 Mich at 76. Instead, “[t]he proper inquiry 

is always whether the probative value of the photographs is substantially outweighed by unfair 

prejudice.” Id. 

If photographs which disclose the gruesome aspects of an accident or a crime are 

not pertinent, relevant, competent, or material on any issue in the case and serve 

the purpose solely of inflaming the minds of the jurors and prejudicing them 

against the accused, they should not be admitted in evidence. However, if 

photographs are otherwise admissible for a proper purpose, they are not rendered 

inadmissible merely because they bring vividly to the jurors the details of a 

gruesome or shocking accident or crime, even though they may tend to arouse the 

passion or prejudice of the jurors. [Id. at 77 (quotation marks and citations 

omitted).] 

 The photos were close-up depictions of the stab wounds on the victim’s body, including 

wounds to the victim’s hands that Dr. Hunter testified were defensive wounds, and other wounds 

to Chris’s face and head that were fatal. After viewing the photos, we are convinced that their 

sole purpose was not to inflame the jury. Instead, the photographs were relevant to show that 

defendant had the intent to commit murder. Id. at 80-81 (“photographs were properly admitted 

by the trial court because they were necessary to show the defendants' intent to kill and to 

corroborate the testimony of the prosecution's expert . . .”). The photos were clinical and did not 

contain excessive gore. Additionally, the trial court carefully considered the photos before it 

determined that they were relevant and not substantially more prejudicial than probative. Its 

decision did not fall outside the principled range of outcomes.

VI. BRADY VIOLATION 

 Defendant argues that he was denied due process and was entitled to a mistrial when it 

was discovered that the prosecution “effectively suppressed evidence that it knew was critical, by 

not sua sponte flagging” the fact that additional “hair fibers” taken from the victim’s hand were 

never tested. Alternatively, defendant argues that he was denied the effective assistance of 

counsel when counsel failed to discover the evidence and pursue its relevance. We disagree as to 

both allegations of error. 

 “To prevail on a claim of prosecutorial error, a defendant, in general, must demonstrate 

that he or she was denied a fair and impartial trial.” People v Bosca, ___ Mich App ___; ___ 

NW2d ___ (Docket No. 317633, issued March 26, 2015), slip op, p 11 (internal citations 

omitted). 
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 “A trial court’s decision on a motion to dismiss is reviewed for an abuse of discretion.” 

Hartwick, 303 Mich App at 255. 

 Because there was no Ginther3 hearing, defendant’s ineffective assistance of counsel 

claim is limited to the existing record. People v Sabin, 242 Mich App 656, 659; 620 NW2d 19 

(2000). 

 On the third day of trial, the parties addressed defense counsel’s motion for sanctions and 

mistrial regarding evidence sample #21. Defense counsel indicated that he was “shocked” to 

learn that hair fibers had been removed from the victim’s left hand, but never tested. Had 

counsel known about the hair, he would have demanded that it be tested. Defense counsel stated: 

“I can certainly be faulted for not specifically opening envelopes, although I’m not – I did have 

access to them. The Prosecutor at some point last week made an offer in that regard, but he was 

going to do a list and it’s from that list that this discovery was made so, [] the Prosecutor did 

provide a list of evidence. I just wasn’t aware that there was evidence separate and apart from all 

of the evidence reports I received from the crime lab. I guess call me naïve in that regard . . .” 

The evidence report showed the sample as “evidence not tested.” 

 The prosecutor believed the evidence was collected at the autopsy and sent to the lab to 

see if there was anything of evidentiary value.4 He noted: “I have to rely on the investigators in 

the lab that they’re going to test everything that’s either exculpatory or incriminating or relevant 

to the facts of the case so I have.” Analyst Paul Donald received those envelopes. “He identified 

them in a lab report in Exhibit E that [defense counsel] has had all along and in Paul Donald’s 

report he doesn’t describe any specifics about what’s in the envelope, but he clearly puts all of us 

on notice that he’s got a bunch of evidence that ran through his lab that he didn’t test . . .” The 

prosecutor had an assistant conduct a physical rundown of all the evidence and type up a list that 

would fully disclose the evidence that was in the prosecutor’s office. 

 Defense counsel again noted the potential importance of such evidence: 

[I]f I overlooked something, why didn’t somebody just say, hey, we’ve got some 

more? What’s the problem? Now it is a problem because the unique evidence 

that was identified as Caucasian head hair is truly lost, as I understand it from the 

– from law enforcement. So what we have left may not be identified as that at all. 

In fact, they may open it and say, well, that’s – that’s a cat hair or a dog hair or I 

don’t know what they’re going to say it is, but – so it may not be relevant at all 

and I don’t know that I necessarily need all of that testing if visually it doesn’t fit 

the same kind of profile that we originally were concerned about and that is hair 

from a Caucasian head. 

 

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

4

 This was in contrast to the hairs that were previously lost, which were taken from the victim’s 

body at the scene of the crime. 
-13- 

 In rejecting defense counsel’s request for a mistrial, the trial court noted that both 

attorneys had the lab reports from the beginning of the case. The trial court found that there was 

no discovery violation because the prosecutor turned over the evidence it possessed. Nor was 

there a Brady violation because there was no way to prove the evidence was favorable to 

defendant. The trial court noted that, even if the evidence showed hairs belonging to someone 

other than defendant, the evidence at trial had demonstrated that the people all had relationships 

with each other. “They would have all had innocent reasons to come in contact with each other 

or with each other’s home or other areas where hair samples might have transferred from one 

person to another unconnected to a murder.” The trial court again pointed out that defense 

counsel had the evidence available to him. There being no showing that the prosecutor 

suppressed favorable evidence, the trial court refused to grant a mistrial or give an adverse 

assumption jury instruction. The trial court declined to postpone trial until testing could be 

performed. It ordered that neither side reference the evidence. 

 In contrast to Issue III above where bad faith is considered when evidence is lost or 

destroyed, “the suppression by the prosecution of evidence favorable to an accused upon request 

violates due process where the evidence is material either to guilt or to punishment, irrespective 

of the good faith or bad faith of the prosecution.” Brady v Maryland, 373 US 83, 87; 83 S Ct 

1194; 10 L Ed 2d 215 (1963). In order to establish a Brady violation, the test is whether “(1) the 

prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed in its 

totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731, reh den 495 Mich 

998 (2014). “Evidence is favorable to the defense when it is either exculpatory or impeaching.” 

Id. at 150. Evidence is material if “there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” Id. at 150, 

quoting United States v Bagley, 473 US 667, 682; 105 S Ct. 3375, 87 L Ed 2d 481 (1985). “A 

‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. 

“The question is not whether the defendant would more likely than not have received a different 

verdict with the evidence, but whether in its absence he received a fair trial.. . .” Kyles v Whitley, 

514 US 419, 434; 115 S Ct 1555; 131 L Ed 2d 490 (1995). 

 Defendant cannot demonstrate that the prosecutor suppressed evidence. In fact, 

defendant concedes that trial counsel had the information since the beginning of the case. Nor 

can defendant show that the evidence was favorable. Unlike the hairs discussed in subsection III 

of this opinion, which were specifically identified as Caucasian, there was no preliminary finding 

regarding these additional “hair fibers.” Defendant’s claim that the hairs were Caucasian is mere 

speculation. Even if the hairs had been identified as Caucasian, such evidence was not 

exculpatory for the same reasons as discussed above. Defendant has not shown that he was 

deprived of a fair trial due to the absence of the evidence. Defendant confessed his crime to 

various individuals and the presence of Caucasian hair did not exonerate defendant, especially 

when there were numerous individuals who had reason to come into contact with one another. 

 We reject defendant’s attempt to fault the prosecutor for failing to “sua sponte” draw 

attention to evidence that was within defense counsel’s knowledge. While it is true that “[a] 

prosecutor’s role within our judicial system is to seek justice and not merely to convict,” People 

v Meissner, 294 Mich App 438, 455; 812 NW2d 37 (2011), “[t]he prosecution is not required to 

seek and find exculpatory evidence or assist in building or supporting a defendant’s case, nor is it 
-14- 

required to negate every theory consistent with defendant’s innocence.” Bosca, slip op, p 14 

(internal citations omitted). 

 Having failed to show a Brady violation, defendant argues that he received ineffective 

assistance of trial counsel when defense counsel admitted that the information was available to 

him, but that he neglected to pursue it. 

 Criminal defendants have a right to the effective assistance of counsel 

under the United States and Michigan Constitutions. To establish that a 

defendant’s trial counsel was ineffective, it must be demonstrated that (1) 

counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms and (2) there is a reasonable probability that, but 

for the errors committed by counsel, the result of the proceedings would have 

been different. Effective assistance of counsel is presumed, and a defendant bears 

a heavy burden of proving otherwise. [Bosca, slip op, p 16 (internal citations 

omitted).] 

“[A] claim of ineffective assistance of counsel incorporates both a performance component and a 

prejudice component. Both prongs must be fulfilled.” Id. If a defendant claims that defense 

counsel should have done more with pretrial discovery, an appellate court will not second guess 

counsel with the benefit of hindsight. Id. Defendant must show that the evidence was 

exculpatory or would have changed the outcome of the proceedings. Id. 

 Trial strategy is not at issue in this case because defense counsel conceded that he had 

access to the information but underestimated its relevance. The primary consideration, therefore, 

is whether trial counsel’s failure to pursue the matter prejudiced defendant’s case. We conclude 

that it did not. Defendant admitted his crimes to three individuals. He knew Chris and lived near 

where the crime occurred. The jury was well aware of the absence of physical evidence linking 

defendant to the crime. The jury had already heard that Caucasian hairs were found in Chris’s 

hands and that the hairs were never tested because they were lost. Defense counsel was able to 

argue that, in a hand-to-hand battle, the presence of Caucasian hair indicated a greater likelihood 

that the assailant was white. Defendant has not demonstrated that the result of trial would have 

been different had the additional “fibers” been tested and admitted into evidence. 

 The prosecution did not suppress evidence favorable to defendant and the trial court did 

not abuse its discretion when it denied defendant’s motion for a mistrial. The prosecution was 

under no obligation to make defendant’s case for him and, therefore, was not required to draw 

defense counsel’s attention to evidence already within defense counsel’s reach. Although there 

was no sound trial strategy for failing to pursue testing the fibers, defendant has failed to show 

that any alleged error was prejudicial. 

VII. SUFFICIENCY OF THE EVIDENCE 

 Finally, defendant argues that there was insufficient evidence to support his conviction. 

We disagree. 

 “This Court reviews de novo defendant’s challenge to the sufficiency of the evidence.” 

People v Meissner, 294 Mich App 438, 452, 812 NW2d 37 (2011). In reviewing the sufficiency 
-15- 

of the evidence, this Court must view the evidence in a light most favorable to the prosecutor and 

determine whether a rational trier of fact could find that the essential elements of the crime were 

proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139, 815 NW2d 85 (2012). 

 On December 9, 2002, Chris left home on foot to take his friend Benny’s dogs some 

venison. Chris was later found dead in a ditch. There were scuff marks, footprints, splattered 

blood, broken glass and hats found near Chris’s body, which indicated evidence of a struggle. 

Chris had suffered multiple stab wounds and blunt force trauma to the head. There was no DNA 

evidence or physical evidence directing police officers to the killer, although footwear 

impressions were taken. A new database allowed for search of similar tread and four of the five 

casts had similar tread to New Balance 601, 602, and 801, as well as Ascot Z Tech. In a 

statement to police in 2004, defendant said that he left out the back door of his home through the 

woods to another home. But then, in another version, defendant said he was curious about who 

was lying in the ditch, so he went and saw that it was Chris. 

 The day before the murder, Richard Martinez observed three young people in the street – 

a black man, a white man, and a white woman. He identified defendant as the black man he saw. 

The two men appeared to be ready to “square off” and the woman was walking away, apparently 

wanting nothing to do with it. 

 The Cousins family, the Green family, and the Barry family all lived on the same street. 

Chad Cousins (Chad) testified that he thought defendant “fancied” his sister Lisa. He would 

come over and talk to her and try and “hang out with her.” He asked Lisa out on a date a few 

weeks before the murder. Chad testified that defendant came to the Cousins’ home on the day of 

the murder. Defendant appeared to be nervous and fidgety. 

 Lisa testified that she met Chris six months prior to his death in the spring of 2002 and 

considered him one of her best friends. Their romantic relationship sort of “slowly fizzled” once 

Lisa went back to school in the fall of 2002. Lisa’s family lived in a house they rented from the 

defendant’s father. Defendant was friends with her father. She had no relationship with her 

father, who was abusive to her. Near the time of the murder, Lisa noticed a pair of tennis shoes 

in the box next to their wood stove. She found it odd that he would burn the shoes, as only wood 

and paper ever went into the stove. Floyd seemed paranoid when he was burning the shoes. 

 Two weeks prior to the murder, Chris told Randall Simmons (Randall) that Lisa’s father 

had threatened to kill him if he went back to their house. But Chris also told Randall that Lisa’s 

“boyfriend” threatened to beat him up. Randall thought that maybe Chris was referring to a 

black man that lived down the street (defendant), an individual whom Chris avoided. 

 Ashley Cousins (Ashley) saw defendant twice at Claude’s apartment on the day of the 

murder. The first time she saw defendant he was dressed nicely and was wearing clean clothes 

and shoes. Several hours later Ashley saw defendant a second time. She explained: “He was 

dressed completely different. He had a different tone to him. He looked like something had 

upset him and he looked bothered, upset, disgruntled. He was dirty. I remember he was very 

muddy and very dirty and his shoes were like filthy. He didn’t look anything like he had looked 

earlier that day.” Defendant talked quietly with Claude. Ashley “could tell something was 

wrong. I just didn’t know what it was. You could tell something had upset him.” 
-16- 

 Claude testified that on the day of the murder, defendant came to Claude’s apartment and 

said that someone had been murdered. Claude thought defendant’s attitude was “odd.” He 

seemed quiet and nervous. Defendant was not wearing his new shoes. Claude asked if 

defendant knew anything about the murder, but defendant said no. A few months later, Claude 

told defendant that the police “was kicking in my doors looking for me.” That was when 

defendant told Claude “what happened” and how “he had got into it with” Chris. Claude 

testified: “I guess Christopher was looking through the window or something, I don’t know, and 

then they got into it and that he had killed him.” Claude told police about this conversation in 

2003 and, in exchange, prosecutors did not pursue breaking and entering charges against him. 

He still went to prison for over a year for a probation violation. 

 Claude got out of prison only to get into trouble once again. He realized that the police 

had re-opened the investigation and Claude agreed to make contact with defendant and wore a 

wire when talking to defendant. 

 Jeanine testified that on the day of the murder, defendant came to the apartment she 

shared with Claude and “he just wasn’t his self.” He was pacing and it appeared that something 

was bothering him. Defendant was not wearing the new shoes Jeanine had bought for him – 

New Balance brand. Approximately a month after the murder, defendant told Jeanine that he 

had burned the shoes in a barrel behind the house because they had blood on them. Defendant 

said that somebody he did not know had been looking through the window and he grabbed a 

knife and went outside to “scare him off.” Defendant admitted to stabbing the individual. 

 Antonio testified that defendant called him and said “‘Do you want to know 

something?’” and proceeded to tell Antonio that he beat up Chris, and got blood on his shoes. 

 John Reed (John) testified that in 2012, defendant “come out to the house and he was 

looking for Boddy and he said, well, do you know where the nigger lives, and I said, yeah. He 

said, well, will you take me up there so I can kill the nigger because he said – he’s been going 

around town saying that I raped Green and killed him – raped him before I killed him.” 

Defendant told John that he did some “bad stuff” while John was in prison. Defendant told John 

that both he and Chris were dating Lisa. Defendant said that he and Boddy waited until Chris 

came near the trailer and then defendant “he beat him up.” 

 Defendant attempted to explain his damning statements by implying that he was not only 

of low intellect, but suffered notions of grandeur. Licensed psychologist William Brooks 

testified that defendant had borderline intellectual functioning and “psychotic disorder not 

otherwise specified.” Someone with the disorder would demonstrate thought disorder and 

delusional thinking. There may be severe and significant mood instability. Grandiosity, i.e., the 

need to be the center of attention is also a feature. An individual with delusions of grandeur 

wants to be “a part of the action, be a part of the center of the focus, be somebody important to 

the person that you want to impress.” Someone with a low IQ might be gullible or easily 

manipulated. 

 “The elements of premeditated murder are (1) an intentional killing of a human being (2) 

with premeditation and deliberation.” People v Gayheart, 285 Mich App 202, 210; 776 NW2d 

330 (2009). Defendant argues that there was insufficient evidence that he was the killer. As the 
-17- 

prosecutor points out, however, defendant really takes issue with the jury’s credibility 

determinations. Defense counsel fully explored each witness’s potential motivation for lying, yet 

the jury found defendant guilty anyway. An appellate court “will not interfere with the trier of 

fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v 

Eisen, 296 Mich App 326, 331, 820 NW2d 229 (2012) (internal quotation marks omitted); see 

also People v Wolfe, 440 Mich 508, 514; 489 NW2d 748, amended 441 Mich 1201 (1992). And 

while there was little physical evidence on the scene to help the police officers, foot impressions 

were taken. There was evidence that defendant wore a pair of tennis shoes near the time of the 

murder that matched the tread of those found at the scene. There was also evidence that 

defendant told a witness that he burned the shoes because they had blood on them. Lisa testified 

that she saw her father burn tennis shoes in their wood stove. He and defendant were friends. 

Taking the evidence in a light most favorable to the prosecution, there was sufficient evidence 

for a jury to conclude that Chris was murdered and defendant was the culprit. 

 Affirmed. 

/s/ Michael J. Talbot 

/s/ Kirsten Frank Kelly 

/s/ Deborah A. Servitto