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

revision until final publication in the Michigan Appeals Reports.

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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,

FOR PUBLICATION

November 19, 2019

9:00 a.m.

v No. 343607

Hillsdale Circuit Court

JAY SCOTT CLARK, LC No. 17-414055-FC

Defendant-Appellant.

Before: SWARTZLE, P.J., and GLEICHER and M. J. KELLY, JJ.

SWARTZLE, P.J.

Police take a person into custody for questioning related to a murder. Police explain to 

the person his rights under Miranda v Arizona. The person exercises his right to remain silent, 

but while being escorted to a cell, he reinitiates a discussion, and police immediately return him 

to the interview room. He is reminded that his Miranda rights had been read to him earlier, and 

he agrees to talk. Under this fact pattern, must the person’s incriminating statements made 

during the reinitiated interview be suppressed?

Defendant asks us to hold so, but he does so without support. Instead, we hold that there 

is no bright-line rule that, in the absence of rereading the person his Miranda rights a second 

time when discussions are reinitiated, the person’s subsequent statements must be suppressed. 

Rather, the test is whether, under the totality of the circumstances, the person voluntarily, 

knowingly, and intelligently waived his right to counsel and to remain silent. Under the 

circumstances here, there is no basis to suppress defendant’s incriminating statements made to 

police. Further concluding that there is no other ground for reversal, we affirm defendant’s 

convictions for first-degree murder and felony-firearm.

I. BACKGROUND

A. THE BODY

On April 2, 2017, the victim’s body was found in a wooded area in Hillsdale County. 

The medical examiner determined that the victim died because he was shot five times; four 
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bullets entered his left side and one bullet entered his right side. The medical examiner opined 

that the shots had been fired contemporaneously and that the single gunshot wound to the 

victim’s right side appeared to be from a smaller bullet. Police recovered two .45 caliber bullets 

from the victim’s jacket and sweatshirt, and concluded that both of those bullets had been fired 

from the same weapon. In addition, the medical examiner recovered a .45 caliber bullet from the 

victim’s body during the autopsy.

B. DEFENDANT CONFESSES BUT LATER MOVES TO SUPPRESS

Police officers interviewed Ashley Hoath,1 a woman who dated the victim at various 

times. Ashley ultimately pleaded guilty to second-degree murder arising from the victim’s 

death, and the trial court sentenced her to serve 25 to 40 years in prison. This Court denied her 

delayed application for leave to appeal, People v Hoath, unpublished order of the Court of 

Appeals, entered June 29, 2018 (Docket No. 343918), and our Supreme Court also denied her 

application for leave to appeal, People v Hoath, 503 Mich 889 (2018). Based on information 

that Ashley provided, police arrested defendant in connection with the victim’s death. Police did 

not immediately interview defendant at the time of his arrest because he was intoxicated.

Deputy Wesley Ludeker and Sergeant Kevin Bradley of the Hillsdale County Sheriff’s 

Department interviewed defendant on the morning after his arrest. Defendant subsequently 

moved to suppress the statements he gave to police that day.

Sergeant Bradley testified at the pretrial hearing on defendant’s motion to suppress that

when they questioned him, defendant was cogent, alert, and communicating well. Police 

recorded defendant’s first interview, and during this interview, Deputy Ludeker read defendant 

his Miranda rights from a prepared card. Defendant asked, “So I can stop answering questions 

any time I want?” According to Sergeant Bradley, Deputy Ludeker agreed that defendant could

do so, and defendant said “Okay, then.” Deputy Ludeker told defendant that he had spoken with 

Ashley and she was “selling him down the river” because she blamed him entirely and denied 

any involvement in the victim’s death. At that point, defendant asserted his right to counsel and 

police ceased the interrogation. The recording of this first interview indicates that it lasted only 

four minutes.

Deputy Jeffrey Miller testified that he retrieved defendant from the interview room and 

began escorting him to the jail. Deputy Miller did not recall saying anything to defendant as he 

escorted defendant back to his cell. When they were just a few feet away from the interview 

room, defendant said, “Hey, could you tell those guys however Ashley said it happened, I’m 

willing to sign whatever.” Deputy Miller agreed to convey that message, and he secured 

defendant in his jail cell. Deputy Miller then told Deputy Ludeker what defendant said, and 

another police officer escorted defendant back to the interview room. Importantly, only a few 

 1 Because we discuss the testimony of both Ashley Hoath and her sister Jolene Hoath in this 

opinion, we refer to these witnesses by their first names.
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minutes passed between the initial reading of defendant’s Miranda rights, his invocation of his 

right to counsel, and his subsequent decision to submit a signed statement.

Sergeant Bradley testified that, after defendant’s first interview, he went to the 

undersheriff’s office. Deputy Ludeker then informed the sergeant that defendant reinitiated a 

discussion, and the two police officers returned to the interview room. Although they did not 

restart the recording device, they instructed another police officer to do so. Sergeant Bradley 

admitted that neither he nor Deputy Ludeker reread defendant his Miranda rights verbatim from 

the prepared card after defendant reinitiated the discussion with them.

According to Sergeant Bradley, Deputy Ludeker reminded defendant that he had invoked 

his right to counsel and asked him if he had changed his mind and wanted to talk to them. 

Defendant told them that he had changed his mind, he wanted to speak with them, and he 

immediately informed the officers, “Whatever Ashley said happened, is what happened.” 

Sergeant Bradley testified that, after they had been speaking with defendant for some time, an 

officer knocked on the door of the interview room and asked him to step outside. Sergeant 

Bradley learned that the recording of this second discussion had missed the initial 30 to 45 

seconds. Sergeant Bradley then reentered the interview room and told defendant that he 

respected him for speaking with police about the victim’s death, waiving his rights, and telling 

police what happened. Sergeant Bradley said defendant responded “Yeah” and “Thanks.”

Deputy Ludeker testified that defendant left the interview room after his first interview, 

but then asked to return and agreed to waive his rights to counsel and to remain silent. 

According to Deputy Ludeker, he reminded defendant that he had been read his Miranda

warnings, then asked defendant if he understood his rights, and defendant said, “Yes.” 

Defendant then explained that he remembered being read his rights, understood them, waived 

them, and was prepared to give a statement. Deputy Ludeker testified that defendant’s first 

statement after waiving his rights was, “Whatever Ashley said happened is how it happened.”

Defendant also testified during the hearing on his pretrial motion to suppress. He 

acknowledged that Deputy Ludeker read him his Miranda rights during the first interview. 

Although he asserted that he had just been on a nine-day alcohol and drug binge, defendant 

nevertheless admitted that he understood his rights when they were first read to him. Defendant 

also admitted that he was brought back to the interview room after stating that he wanted to 

speak with the two investigating officers. The police officers did not threaten him and treated 

him “great.”

Although defendant conceded that he initiated the second interview with police and that 

he voluntarily spoke with the police officers during the second interview, he stated that he was 

“spurred” to do so by Deputy Miller, who said something to get his mind going about Ashley, 

and he feared that Ashley might be in jail. Yet, defendant did not elaborate on what specifically 

“spurred” him, and there is nothing in the record to suggest that Deputy Miller badgered 

defendant to reinitiate discussions. Defendant testified that the police officers did not reread his 

Miranda rights to him before the second interview, but he admitted that Deputy Ludeker 

reminded him that he had invoked his right to counsel and asked if he wanted to speak to police 

again.
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After the close of proofs at the suppression hearing, defense counsel argued that it was 

not enough that defendant voluntarily spoke to the officers during the second interview. Instead, 

defense counsel argued that there was a bright-line rule that the officers had to reread 

defendant’s Miranda rights to him verbatim before they could speak to him again. The trial 

court disagreed with defense counsel that this was the law. The trial court then found that 

defendant understood his rights and waived them, and concluded that defendant’s statements 

made during the second interview were admissible:

It would appear clearly to this Court based on the facts that I have before 

me that the five minute hiatus, Mr. Clark waived his rights. He invoked them. He 

knew them. He understood them. He initiated conduct [sic]. He was reminded of 

the fact that those rights were read to him. He [was] asked if essentially he 

understood them. And that he wished to talk. He admitted yes in all that regard.

I do not believe that the case law that had been cited referring to Michigan 

and federal cases require a specific second reading verbatim of Miranda rights. 

And that’s what I base my ruling on. If I am mistaken, obviously the rights 

weren’t read and if that’s what the appellate courts are standing on the proposition 

they must be read verbatim, obviously it did not take place here.

But I don’t believe that’s what the case law interprets. I don’t think that’s 

what the case law requires. So, I deny the motion to suppress. Statements are 

admissible.

C. THE TRIAL

Defendant’s Second Interview. Defendant’s second interview was played at trial for the 

jury. It lasted approximately 30 minutes, including several breaks. As noted earlier, the 

recording does not capture the beginning of the interview. Instead, the recording begins abruptly 

with defendant and a police officer already speaking. On the recording, the officers told 

defendant that they could not simply take Ashley’s word for what transpired and that they 

needed to hear defendant’s version of events. The officers also told defendant that they wanted 

the truth and that they did not want someone to confess if that person was not responsible for the 

shooting.

During the second interview, defendant told police that he shot the victim with a .45 

caliber revolver, that the victim was dead, and that he definitely “pulled the trigger.” Defendant 

admitted that he shot the victim several times, estimating that he had fired “three or four” shots 

while the victim was seated in defendant’s Chevrolet Tahoe. Although defendant stated that he 

drove 20 to 30 minutes outside of town before he shot the victim, he explained that he could not 

remember exactly where the shooting occurred because he was intoxicated from the consumption 

of alcohol and methamphetamine.

Defendant first insisted that Ashley was not with him when he shot the victim. When 

police told him that Ashley had admitted being there, defendant responded that Ashley did not 

lie, and if she said that she was there, then she was there. Although defendant never stated to 

police that he planned to kill the victim, he nevertheless complained that no one was helping 
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Ashley, and stated that her father could not “do it.” He also told the officers that he had never 

met the victim prior to the shooting and that he needed Ashley to identify the victim for him.

Police asked defendant about the firearm used to shoot the victim. Defendant stated that 

the officers would never find the firearm because he had melted it down at his stepfather’s house. 

Police also asked defendant about his Chevrolet Tahoe, and defendant explained that he cleaned 

the vehicle with a mix of chlorine and peroxide and traded it for the Ford Mustang that he was 

driving on the day of his arrest. When police asked why the Tahoe’s back seat had been burned, 

defendant asked, “How did you know that I burned the seat?” Defendant then stated that after he 

burned the back seat, he disposed of it and some bicycles in a scrap yard.

During the second interview, a police officer also told defendant that he had heard—and 

not just from Ashley—that defendant might have done something like this before. Defendant 

explained that he told Ashley all kinds of “stuff” to make her feel that he was okay with the 

victim’s death. The police officer responded that Ashley made it sound like defendant used to do 

“this for a living,” implying that defendant was a killer-for-hire. Defendant responded that the 

victim was the only person he had ever killed.

Investigation of Vehicle and Ohio Property. When police arrested him, defendant was 

driving a Ford Mustang with an Ohio license plate. Jason Eisenmann, who lived in Ohio, 

testified that he advertised a Ford Mustang for sale online, that defendant offered to trade the

Tahoe for the Mustang, and that he accepted the offer. When defendant delivered the Tahoe, 

Eisenmann saw that it did not have a back seat, but it appeared to be otherwise clean. Eisenmann 

did not clean the Tahoe; he only drove it for about a week before the fuel pump failed, and police 

seized the vehicle about two weeks later.

Detective-Lieutenant Lance Benzing testified that he seized the Tahoe from Eisenmann’s 

property. He stated that the Tahoe was missing a back seat and a large section of carpet. Based 

on information from an informant, Detective-Lieutenant Benzing also searched a property in 

Ohio owned by members of defendant’s family. The property included a “garage-type barn” 

with a camper. The garage had vehicles, mechanic’s tools, welding equipment, and motorcycles; 

it appeared to be used for both storage and as a place to work on vehicles. The detective saw a 

burn spot behind the barn and found items within the burn spot—metal bracketing, a piece of 

vinyl, and a seatbelt buckle—that were consistent with the interior of a Tahoe. He seized a 

burned vehicle seat on which bicycles had been piled. He transported the vehicle seat back to 

Michigan, and it fit into the Tahoe. The detective also searched the Ohio home of defendant’s 

brother. He seized a .22 caliber handgun from the brother’s residence and found property that 

belonged to defendant there.

Several forensic scientists employed by the Michigan State Police testified that they were 

unable to recover evidence from the Tahoe. One stated that she tested the Tahoe and did not find 

any indication of blood around the area where the back seat would have been. She did recover 

some blood drops, but they did not match the victim. She stated that, although the chemical used 

for testing is very sensitive, bleach and other detergents will degrade samples. Another forensic 

scientist testified that he tested the Tahoe for fingerprints and did not find any that matched the 

victim, defendant, or Ashley. Finally, a third forensic scientist testified that he was unable to 
-6-

identify any fibers from the Tahoe on the victim’s clothing and did not find any fibers from the 

victim’s clothing in the Tahoe.

Testimony of Temples and Jolene. Michael Temples testified that he was a resident of the 

county jail. For several days, he shared a cell with defendant. Temples testified that defendant 

was often upset, crying, and distraught. According to Temples, defendant told him that he had 

already talked to police and that he was in jail because he shot and killed the victim. Defendant 

told Temples that he turned around in his Tahoe and shot the victim because the victim had 

called Ashley an unflattering name. Defendant also claimed that the victim was abusing Ashley. 

Defendant explained that he told the police officers that he cut up the gun he used, but in reality, 

he put the gun in the sewage tank of a camper. Defendant also told Temples that he washed the 

Tahoe with bleach and peroxide, removed the Tahoe’s back seat, and burned it near the camper. 

Temples testified that he related defendant’s statements to police because “it was the right thing 

to do.”

Defense counsel called Jolene Hoath, Ashley’s sister, to testify on defendant’s behalf. 

Counsel asked whether Ashley spoke to her about the victim’s death, and Jolene answered that 

she had. Jolene testified that Ashley stated that she knew that the body that was recently found 

was the victim’s body; Jolene asked Ashley how she knew that the body was the victim’s, and 

Ashley told her that she “did it.”

Defense counsel then asked Jolene whether they had other conversations about the 

victim’s death, and Jolene said that they spoke about the matter again the next day. She related 

that Ashley was distraught, and Ashley stated that she was scared of “the guy” and that the “guy 

did it.” Jolene further testified that Ashley “never said a name.” Defense counsel asked Jolene 

whether Ashley was a habitual liar, but the prosecutor objected and the trial court sustained the 

objection. Defense counsel then elicited testimony from Jolene that Ashley did not have a 

reputation for telling the truth.

On cross-examination, the prosecutor asked Jolene about the day when Ashley was 

crying. The prosecutor asked her if Ashley ever told her the name of the man of whom she was 

afraid. Jolene stated that Ashley said that she was afraid of defendant. Jolene indicated that 

Ashley did not say why, just that she was afraid defendant would hurt her. The prosecutor then 

asked whether Ashley told her that defendant was the person who shot the victim. Defense 

counsel objected and the trial court overruled the objection. The prosecutor asked the question in 

a different way: “She told you that this other guy was the one who shot” the victim. Jolene 

stated, “Yes, she did.” On redirect, Jolene explained that Ashley finally told her that defendant 

was the one who shot the victim after information regarding the victim’s death came out in the 

news.

Ashley Refused to Testify. The prosecutor also called Ashley as a witness at defendant’s 

trial, but she refused to testify. Although both parties appear to have believed that Ashley would 

testify, she refused to do so after she was called to the witness stand. Ashley agreed to testify 

against defendant as part of a plea deal that allowed her to plead guilty to second-degree murder, 

and police made defendant aware of the substance of her statements implicating him in the 

shooting. The prosecutor gave defendant notice that he intended to call Ashley as a witness at 

his trial, and provided defense counsel with a summary of her criminal convictions, which 
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suggests that the prosecutor expected that Ashley would testify and be subject to crossexamination.

In the prosecutor’s opening statement, he stated that Ashley would be testifying. He 

informed the jury that she had initially denied any role in the shooting, but that she subsequently 

admitted participating in the shooting and pleaded guilty to second-degree murder. He stated 

that Ashley told police that defendant shot the victim, but did not otherwise elaborate about her 

proposed testimony. Similarly, in her opening statement, defense counsel informed the jury that

Ashley would testify. She predicted that when Ashley did so, the jury would see that her

statements blaming defendant were not credible, that she was not an innocent victim, and that 

she was a liar. Defense counsel told the jury that she would also be asking Ashley about an 

incident during which she beat her sister into unconsciousness, and stated that there would be 

evidence that Ashley once paid the victim’s bond to get him out of jail. Finally, defense counsel 

argued that the police officers did not conduct a thorough investigation regarding the victim’s 

death, but only chose to investigate those details that fit Ashley’s version of events.

On the afternoon of the first day of trial, the prosecutor informed the trial court that his 

next witness was Ashley, but that she had not yet arrived. The trial court ordered a brief recess. 

After the trial court resumed proceedings and the jury was seated in the courtroom, the 

prosecutor called Ashley to the witness stand. The trial court then placed her under oath and 

asked her to spell her name, which she did. After the trial court told the prosecutor that he could 

begin his examination, the following exchange occurred in the presence of the jury:

The Witness: Your Honor, I want to file a verbal motion to withdraw my plea.

The Court: Ma’am—ma’am—ma’am.

The Witness: It was not willful—

The Court: Ma’am, you’re out of order. This is not the place nor the—the time 

for that situation, so.

The Witness: Well, then I want to plead the Fifth and I ask you to please escort 

me back to the county jail.

The Court: Okay, would you escort the jury back out for a moment, please?

The transcript shows that the entire episode—from calling Ashley to the witness stand to the 

jury’s departure from the courtroom—lasted one minute.

After the jury departed, the trial court advised Ashley that she could not validly assert the 

Fifth Amendment because she had already pleaded guilty. The trial court further informed her 

that it would not entertain a motion to withdraw her guilty plea in an unrelated proceeding. After 

a brief recess, Ashley returned and informed the trial court outside of the jury’s presence that she 

would not testify. As a result, the trial court had her taken back to jail. Before the jury returned, 

the trial court asked the parties if they wanted a curative instruction to address Ashley’s outburst, 

but both declined.
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Parties’ Closing Statements. In his closing statement, the prosecutor told the jury that it 

did not have to rely solely on defendant’s recorded statement to police to conclude that he shot 

the victim because it could also rely on the testimony of Temples:

But you don’t have to necessarily believe the testimony that you saw on 

the screen. I want you to remember two words: a name, Michael Temples. Now, 

it’s one thing to lie to the police or it’s one thing to give the police a story, but it’s 

something that’s completely different, isn’t it, when you’re talking to a cell mate 

or somebody who is not involved with the government or is not involved with the 

case? Michael Temples knew nothing of the murder of Jeremy Barron.

He testified that he hadn’t heard about it. He couldn’t come up with the 

statement that he gave to Detective Lieutenant Benzing without it coming from 

the defendant himself. And you use your judgment. You recall Michael Temples 

sitting there. You can judge his credibility based upon circumstances—stances 

whether he could create this or not. How could he? It came from the defendant 

himself. Volunteered. And what did he tell Michael Temples?

He told Michael Temples that not only did he clean the interior of the car 

with peroxide, but Michael Temples said bleach and peroxide; you recall that? 

And what do we know about bleach? It is one thing that will remove the DNA 

according to our expert that testified. A thorough job to be sure.

And what else did Michael Temples know from the defendant? Well, that 

the defendant shot him; certainly that’s important, but what happened to the seat 

and where it was? We didn’t know that information. We didn’t know exactly 

where it was until Michael Temples told Detective-Lieutenant Benzing so that he 

could get a search warrant and find it which he did which also led us to the burn 

spot. Makes sense that he would go to the location that has the torches; that has a 

location where he can be in a safe position to destroy evidence and take care of it 

without officers from Michigan coming and inspecting until we know the truth.

Michael Temples, I submit to you ladies and gentleman, is someone who 

had nothing to gain; simply stating what he heard and stating the truth.

During her closing arguments, defense counsel spent a considerable amount of time 

discussing the testimony that she elicited from police officers, which, she argued, showed that 

the officers did not conduct a thorough investigation. She informed the jury that it should 

consider whether the “facts fit” with what the prosecutor was trying to “sell” to the jury. She 

argued that there was no evidence that put the victim in defendant’s vehicle. Defense counsel 

faulted the police officers for not sending for analysis a bloody sheet seized from Ashley’s house 

and for failing to follow up on a piece of leather that they also seized. She also faulted them for 

failing to follow up on leads that suggested that the victim was still alive after the date when 

defendant supposedly killed him, and accused the police officers of not doing their jobs; she 

argued that the police only investigated things that supported Ashley’s version of events. 

Defense counsel continued to identify flaws in the investigation throughout her closing statement 
-9-

and then informed the jury that the police officers had to be able to “explain everything” and 

they had failed to do so.

The prosecutor rose in rebuttal and attacked defense counsel’s theory that the police 

officers’ investigation was so flawed that the jury could not determine what really happened. He 

argued that the defense was compelled to point out the flaws in the investigation because the 

defense had to overcome the fact that defendant twice admitted to the murder:

A little bit of inside baseball here for you, ladies and gentleman. In the 

defense world, when you have [a] case that doesn’t look good for your client or 

your client made admissions where there’s something there that’s very obvious; 

something he said, you shift blame.

Where’s the blame being shift—shifted now? Who’s the bad guy here? 

The police. So now, all of a sudden and by the way, I would think that you would 

probably not want to run out and become a police officer because you can’t win. 

If you work hard to get evidence and you don’t find evidence then that’s counted 

against you. But if you don’t work hard enough, that’s counted against you. How 

do you win when you’re a police officer?

All you can do is follow leads; all you can do is your job. But, for a 

defendant who’s trying to get himself out of trouble, they’re a good whipping 

boy, aren’t they? They’re a good person to pick on for not finding the real killer, 

like who might that be? Is there evidence of anyone else? Aliens, what, who 

else? There is no one. You can’t suggest that they didn’t do a good job because 

the real killer’s out running loose now.

What we have is the defendant who admitted killing the deceased. And 

even in spite of that, the police did a tremendous job looking for further evidence. 

As it turns out the defendant did a good job of concealing it. It’s a distraction 

when you start talking about somebody who saw pictures on Facebook who now 

believes she saw a dead man that was alive. That’s a distraction. Distraction 

away from something that is more important.

The prosecutor conceded that defense counsel identified areas that the police officers might have 

investigated further, but he argued that those leads were not in fact worthy of further 

investigation—they were mere distractions—and did not undermine the evidence that defendant 

admitted that he shot the victim in the Tahoe:

Ladies and gentlemen, it is a distraction away from this. The words of the 

defendant: I shot him. In the world of defending someone, if you can talk about 

small things like head rests then you poke a little tiny hole in, I shot him. You 

talk about fingerprints or fibers that are on a floor where you might not even 

expect them or even on the back of a vinyl seat, you’re pokin’ a little hole in this 

big statement, I shot him.
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Again, another little hole; fingerprints, where are they? Why didn’t you 

take the headrest in and do what with it? Well, you didn’t do it. So, there you go. 

I just poked another hole and you know what, she wants you to do. You know 

what the defendant wants you to do. They want you to look at that hole so 

closely, so closely that you don’t see the big picture when you stand back. These 

words: I shot him.

The prosecutor closed his rebuttal by arguing that the police officers in fact did an “outstanding 

job” investigating the victim’s murder and opined that “our streets are safer because of that.”

After deliberating, the jury convicted defendant of first-degree premeditated murder, 

MCL 750.316(1)(a), and carrying or possessing a firearm during the commission of a felony 

(felony-firearm), MCL 750.227b(1). The trial court sentenced defendant to serve life in prison 

without the possibility of parole for his first-degree murder conviction and to serve two years in 

prison for his felony-firearm conviction. 

This appeal followed.

II. ANALYSIS

On appeal, defendant claims that the trial court should not have allowed the jury to hear 

the recording of his second interview with police officers, should not have allowed the jury to 

hear that Ashley pleaded guilty to second-degree murder for her role in the victim’s death, 

should not have allowed Ashley to assert her right to remain silent in the jury’s presence, and 

should not have allowed Jolene to offer hearsay testimony that Ashley implicated defendant in 

the murder. Defendant also maintains that the prosecutor deprived him of a fair trial through his 

closing statements, that his trial counsel was ineffective in several respects, and that the 

prosecutor presented insufficient evidence of premeditation to support the jury’s verdict of firstdegree murder. As we explain, all of the claims are without merit.

A. MOTION TO SUPPRESS

1. PRESERVATION

We first address defendant’s claim that the trial court erred when it denied his motion to 

suppress evidence of statements he made to police during his second interrogation. To preserve 

this claim of error for appellate review, defendant had to object before the trial court and specify 

the same ground for objection that he asserts on appeal, which he did. See People v Douglas, 

496 Mich 557, 574; 852 NW2d 587 (2014). Defendant also raises on appeal grounds for 

excluding his interrogation that he did not raise in the trial court. To obtain relief on those 

unpreserved claims, defendant must demonstrate plain error that affected his substantial rights. 

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

2. STANDARD OF REVIEW

This Court reviews for clear error a trial court’s factual findings in a ruling on a motion to 

suppress evidence. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014). A trial court’s 

factual findings are clearly erroneous when this Court is left with a definite and firm conviction 
-11-

that the trial court made a mistake. See People v Johnson, 502 Mich 541, 565; 918 NW2d 676 

(2018). “The decision whether to admit evidence is within a trial court’s discretion. This Court 

reverses it only where there has been an abuse of discretion.” People v Katt, 468 Mich 272, 278; 

662 NW2d 12 (2003). A trial court abuses its discretion when it selects an outcome that falls 

outside the range of reasonable and principled outcomes. Johnson, 502 Mich at 564. “To the 

extent that the trial court’s ruling involves an interpretation of the law or the application of a 

constitutional standard to uncontested facts, our review is de novo.” Tanner, 496 Mich at 206 

(cleaned up).

3. CONSTITUTIONAL CLAIM

In Miranda v Arizona, 384 US 436, 467; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the 

United States Supreme Court established procedures designed to safeguard the right to remain 

silent protected by the Fifth Amendment, US Const, Am V. The Supreme Court held that when 

an officer interrogates a person who is in custody, that person must be “informed in clear and 

unequivocal terms” that he has the right to remain silent and that anything that he says can be 

used against him in court. Id. at 468-469. The Court also determined that the right to have 

counsel present during the interrogation is indispensable to the protection of the FifthAmendment right. Id. at 469. Accordingly, a person in custody must also be advised that he has 

the right to consult a lawyer and have the lawyer present during interrogation, and that, if he 

cannot afford a lawyer, one will be appointed for him. Id. at 471-472. 

The Court also established several rules to prevent abuses of these constitutional rights. 

“If the individual indicates in any manner, at any time prior to or during questioning, that he 

wishes to remain silent, the interrogation must cease.” Id. at 473-474. Any statements that occur 

after that point are deemed to be the product of compulsion. Id. at 474. Unless the person in 

custody has been given the required warnings and still waives his rights, “no evidence obtained 

as a result of interrogation can be used against him.” Id. at 479. A person in custody may waive 

his rights if the waiver is made voluntarily, knowingly, and intelligently. Id. at 444.

In a case soon after Miranda, the Supreme Court had occasion to address what happens 

when a person in custody asserts his right to counsel. The Court explained in Edwards v Arizona

that an accused, “having expressed his desire to deal with the police only through counsel, is not 

subject to further interrogation by the authorities until counsel has been made available to him.” 

451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). The assertion of the right to 

counsel during a custodial interrogation is a per se invocation of the right to remain silent. Id. at 

485. The Court emphasized that it was “inconsistent with Miranda” to allow police officers, “at 

their instance, to reinterrogate an accused in custody if he has clearly asserted his right to 

counsel.” Id. There is, however, an exception to this rule—an officer may again interrogate a 

suspect who has asserted the right to remain silent, without first providing the suspect with the 

requested lawyer, if the suspect “initiates further communication, exchanges, or conversations 

with the police.” Id. at 484-485.

On appeal in this case, defendant does not argue that the admission of statements he made 

during his second interview with police were inadmissible because he did not, in fact, reinitiate 

contact with the officers. Rather, defendant argues that the trial court should have excluded 

evidence of his statements at trial because the police officers did not explicitly advise him a 
-12-

second time of his Miranda rights before resuming the interrogation. Defendant’s position is, 

however, without support in the law.

The Supreme Court discussed the proper application of the Edwards rule in Oregon v 

Bradshaw, 462 US 1039; 103 S Ct 2830; 77 L Ed 2d 405 (1983). In that case, the issue before 

the Court was whether the initiation by the defendant of a conversation with a police officer 

constitutes, by itself, a waiver of the defendant’s Fifth Amendment rights. Id. at 1044 (opinion 

by Rehnquist, J.). Justice Rehnquist—writing for four Justices—did not agree that that was the 

case, and concluded that—even after a defendant reinitiates a conversation with police—the 

burden remains on the prosecutor to show that the defendant waived his Fifth Amendment rights. 

Id. at 1044-1045. Justice Rehnquist then determined that there was no violation of the rule in 

Edwards because the defendant initiated the conversation with the police officer, who reasonably 

understood that the defendant’s question related to the investigation. Id. at 1046. After making 

that determination, Justice Rehnquist explained that the relevant question was whether the 

defendant validly waived his right to counsel and the right to remain silent under the totality of

the circumstances, which included the necessary fact that the accused, not the police officer, 

reopened the dialogue. Id. Justice Rehnquist agreed that the trial court properly concluded that 

the defendant’s statements were voluntary and the result of a knowing waiver of his rights. Id. at 

1046-1047.

Justice Marshall, who also wrote for four justices, dissented. He did not agree that the 

defendant initiated a conversation that satisfied the rule in Edwards because, in his view, the 

defendant’s statement did not concern the subject matter of the criminal investigation. Id. at 

1055-1056 (opinion by Marshall, J.). Justice Marshall, however, clarified that the only dispute 

concerned the application of the law to the facts. Eight justices, he wrote, agreed that Edwards

established a two-part test: under the first part, courts must ask whether the defendant initiated 

further communication with the police, and, under the second part, courts must ask whether the 

defendant made a knowing and intelligent waiver of his rights. Id. at 1054 n 2 (opinion by 

Marshall, J.).

Reading the two plurality decisions from Bradshaw together, it is evident that the 

Supreme Court did not, as defendant suggests in this case, adopt a bright-line rule requiring 

police officers to readvise a suspect of his Miranda rights before speaking with him after he 

asserts his right to counsel but subsequently reinitiates a conversation with police. Rather, the 

proper inquiry is whether the defendant reinitiated a conversation on the subject matter of the 

investigation and whether, under the totality of the circumstances, the defendant knowingly and 

intelligently waived his rights to counsel and to remain silent. Bradshaw, 462 US at 1046 

(opinion by Rehnquist, J.), 1048 (opinion by Powell, J.), 1054 n 2 (opinion by Marshall, J.).

Indeed, the rule announced in Edwards is “designed to prevent police from badgering a 

defendant into waiving his previously asserted Miranda rights.” VanHook v Anderson, 488 F 3d 

411, 416 (CA 6, 2007). The Edwards rule embodies two independent inquiries:

First, courts must determine whether the accused actually invoked his 

right to counsel. . . . Second, if the accused invoked his right to counsel, courts 

may admit his responses to further questioning only on finding that he (a) initiated 
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further discussions with the police, and (b) knowingly and intelligently waived the 

right he had invoked. [Id.]

See also Smith v Illinois, 469 US 91, 95; 105 S Ct 490; 83 L Ed 2d 488 (1984); United States v 

Velasquez, 885 F2d 1076, 1084 (CA 3, 1989) (recognizing that the Supreme Court adopted a 

two-part test in Bradshaw). The fact that police officers do not again fully advise the defendant 

of his Miranda rights after he reinitiates communication with them is just one factor to consider 

under the totality of the circumstances. See Pittman v Black, 764 F2d 545, 547 (CA 8, 1985) 

(“Following the invocation of his right to counsel, [the defendant] himself initiated further 

conversation with the police. The officers’ response to [his] question and the interrogation 

following that response would not have caused [the defendant] to forget the rights of which he 

had been advised and which he had understood moments before.”) (cleaned up); see also Kansas 

v Brown, 305 Kan 674, 683, 686-687; 387 P3d 835 (2017) (stating that the test is whether the 

defendant initiated the renewed interrogation and, in doing so, knowingly and intelligently 

waived his previously asserted right to counsel, and further stating that whether the law requires 

renewed Miranda warnings depends on the totality of the circumstances); California v Jackson, 

1 Cal 5th 269, 340-341; 376 P3d 528 (2016) (noting that whether the officers must renew 

Miranda warnings depends on the totality of the circumstances and that renewed warnings were 

not required in that case because the interview was reinitiated minutes after the break in 

questioning, was in the same location, and was with the same police officers). Additionally, this 

Court has held that “police are not required to read Miranda rights every time a defendant is 

questioned.” People v Littlejohn, 197 Mich App 220, 223; 495 NW2d 171 (1992). Indeed, the

Littlejohn Court stated that it was sufficient that the police officer reminded the defendant that he 

had earlier been advised of his rights and asked whether he still understood them after the 

defendant “independently initiated contact” with the officer. Id.

In this case, defendant relies heavily on People v Kowalski, 230 Mich App 464; 584 

NW2d 613 (1998), for the proposition that police officers must give new and adequate warnings

before again interrogating a person who has previously asserted his right to counsel. Because the 

Kowalski case presented an “unusual procedural history,” id. at 466, and this Court construed 

and applied the law as it existed in 1975, before the United States Supreme Court’s decision in 

Edwards, id. at 472, we reject defendant’s reliance on Kowalski for guidance here. In any event,

the Kowalski Court did not focus on whether police officers were required to reread defendant 

his Miranda rights verbatim after he reinitiated contact with police, but on whether the defendant 

was subject to police-initiated interrogation before he gave his confession. Id. at 484.

Defendant admitted that he reinitiated contact, and the record confirms this. He told

Deputy Miller to convey to the other officers that whatever Ashley said happened was what 

happened, and he was even willing to sign a statement to that effect. As the trial court 

recognized, defendant’s statement demonstrated that he wanted to make a statement right then 

about the shooting and that he intended his statement to concede that events were as Ashley 

described to police. The trial court did not err when it determined that there was no binding 

authority for the proposition that the police officers were required to readvise defendant of his

Miranda rights simply because he had earlier invoked his right to counsel. Rather, once it found 

that defendant initiated the renewed interrogation, the remaining question was whether, under the 

totality of the circumstances, defendant knowingly and intelligently waived his right to counsel 

and his right to remain silent.
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Apart from attempting to draw a bright-line rule where none exists, defendant has not 

argued on appeal that he could satisfy the totality-of-the-circumstances standard. And, indeed, 

he cannot. The time lapse between when defendant initially invoked his right to counsel, then 

reinitiated discussions, and then began talking again with the officers was only a few minutes. A 

typical bathroom break during an interrogation might last as long as the time lapse here. 

Moreover, as the trial court found, the officers reminded defendant that his Miranda rights were 

recently read to him, and he continued talking with the officers. Given the brief time lapse, the 

reminder was adequate under the circumstances, and defendant’s claim fails.

B. MRE 106

Defendant next argues that the trial court erronerously admitted the recording of his 

statements in violation of MRE 106. The rule provides: “When a writing or recorded statement 

or part thereof is introduced by a party, an adverse party may require the introduction at that time 

of any other part or any other writing or recorded statement which ought in fairness to be 

considered contemporaneously with it.” MRE 106 has no bearing on the admissibility of the 

underlying evidence; rather, it allows the adverse party to supplement the record to provide a 

complete picture. See People v McGuffey, 251 Mich App 155, 161; 649 NW2d 801 (2002). 

“Thus, the rule of evidence would only be pertinent if defendant sought, but was denied, 

permission to have a complete writing or recorded statement introduced.” Id.

On appeal, defendant does not complain that the prosecutor played only a part of the 

recording of his statements and that the trial court prevented him from playing the remainder or 

offering another recording or writing that would have provided a fuller picture for the jury. The 

record shows that the jury watched all those portions of the police officers’ encounter with 

defendant that were recorded. The fact that the officers failed to record a few moments of the 

second interrogation does not implicate MRE 106. The jury saw the complete recording that 

existed and defendant has not identified on appeal any other recording or writing that ought to 

have been considered contemporaneously with his confession. Moreover, nothing prevented 

defendant from eliciting testimony from the police officers to fill in the gaps created by the 

failure to record defendant’s entire interview.

Defendant relies on authorities outside the jurisdiction for the proposition that the rule of 

completeness stated in rules analogous to MRE 106 bars the admission of video evidence where 

the video does not show the whole interrogation. Specifically, defendant cites Arizona v Steinle 

ex rel Maricopa Co, 237 Ariz 531; 354 P3d 408, 412 (2015), vacated in relevant part and 

remanded for further proceedings 239 Ariz 415 (2016), and United States v Yevakpor, 419 F 

Supp 2d 242, 252 (ND NY, 2006), in support. Both of those cases, however, involved situations 

where the recording had been modified and the original erased. Under those circumstances, the 

courts determined that it would be fundamentally unfair to allow the prosecutors to admit the 

altered videos. Steinle, 237 Ariz at ¶¶ 11-12; Yevakpor, 419 F Supp 2d at 251-252. In this case, 

no one contends that the video at issue had been altered in any way; defendant merely finds fault 

with the officers’ failure to start the recording device earlier. In short, neither MRE 106 nor the 

other authorities lend support to defendant’s argument.
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C. MCL 763.8

Defendant also claims that the trial court erroneously admitted the recording of his 

statements in violation of MCL 763.8. Under this provision, the Legislature requires any law 

enforcement agency that has recording equipment to record the “entire interrogation” of an 

individual who has been subjected to a custodial interrogation regarding his involvement in a 

major felony. See MCL 763.8(2). Even assuming arguendo that the police violated this 

provision, the violation does not warrant relief here.

The Legislature provided a specific and limited remedy for any violation of MCL 763.8: 

the “jury shall be instructed that it is the law of this state to record statements of an individual in 

custodial detention who is under interrogation for a major felony” and that it “may consider the 

absence of a recording in evaluating the evidence relating to the individual’s statement.” MCL 

763.9. The Legislature also provided that evidence of the individual’s statement may still be 

admitted if otherwise admissible under the law. See id. That is to say, the Legislature’s remedy 

applies to evidence concerning an unrecorded statement.

With MCL 763.8, the Legislature codified its preference for recorded statements. With 

MCL 763.9, the Legislature set forth the remedy for violating the prior section—a jury 

instruction. The Legislature did not codify an exclusionary rule for the part of the interrogation 

that was recorded, and we will not create one here. See People v Hawkins, 468 Mich 488, 500, 

507-511; 668 NW2d 602 (2003). The Legislature went so far as to state that the provision for 

recordings did not give the interrogated person any substantive rights. See MCL 763.10 (“The 

requirement in section 8 of this chapter to produce a major felony recording is a directive to 

departments and law enforcement officials and not a right conferred on an individual who is 

interrogated.”). The trial court did not plainly err when it allowed the recorded portions of 

defendant’s second interrogation to be played for the jury notwithstanding any violation of MCL 

763.8(2). See Carines, 460 Mich at 763. As to whether the trial court erred by not instructing 

sua sponte the jury in accordance with MCL 763.9, assuming the missing minute or so fell within 

MCL 763.8, we conclude that the absent instruction did not affect defendant’s substantial rights.

D. MUSSER ERROR

Defendant also briefly argues that the recording of his statements to police should have 

been excluded because an interrogating officer asserted on the video that Ashley said that 

defendant was a killer for hire or a serial killer, which was inadmissible hearsay, irrelevant, and 

highly prejudicial other-acts evidence. An interrogator’s questions are not ordinarily offered for 

the proof of the matter asserted; as such, the questions are typically not hearsay. See MRE 

801(c). Nevertheless, it may be proper for the trial court to redact an interrogator’s question or 

statement when the statement is not relevant to providing context for the accused’s answer or is 

otherwise excludable under MRE 403. See People v Musser, 494 Mich 337, 354-359; 835 

NW2d 319 (2013).

On appeal, the prosecutor concedes that admission of the police officer’s questions 

relating to Ashley’s purported statement qualifies as plain error. Yet, because defendant did not 

object to the question, defendant must also show that the error affected his substantial rights. See 

Carines, 460 Mich at 763.
-16-

Defendant has not shown this. There was substantial evidence that defendant killed the 

victim. Defendant admitted—both in the second interview and to a fellow inmate—that he shot 

and killed the victim and then took steps to conceal the crime. Physical evidence corroborated 

his admissions. Moreover, the officer’s comment was brief, and defendant immediately denied 

that he had killed anyone else. He also offered a plausible explanation for how Ashley might 

have come to the conclusion—he stated that he told her things to make her think he was okay 

with the victim’s death. The officers appeared to accept this explanation and did not ask 

defendant any further questions regarding the issue. On this record, any error in the trial court’s 

admission of this portion of the recording does not merit relief. See id. 

E. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues—with scant discussion of the record or relevant law—that defense 

counsel was ineffective for failing to raise various grounds for excluding the second 

interrogation. Defendant did not move for a new trial or for a remand to seek a hearing under 

People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973). Accordingly, we review only 

for those errors evident in the record. People v Gioglio (On Remand), 296 Mich App 12, 19; 815 

NW2d 589 (2012), remanded for resentencing 493 Mich 864 (2012).

Defendant’s cursory treatment of his claims of ineffective assistance amounts to the 

abandonment of his claims on appeal. See People v Martin, 271 Mich App 280, 315; 721 NW2d 

815 (2006), aff’d 482 Mich 851 (2008). In any event, defendant has not shown that defense 

counsel’s failure to raise the now-desired objections or ask for a redaction of the recorded 

interview amounted to ineffective assistance of counsel that warrants a new trial.

As already explained, MCL 763.8 and MRE 106 did not provide a plausible basis for 

excluding the recording at issue. Defense counsel cannot be faulted for failing to make a 

meritless motion to exclude the recording from evidence under MCL 763.8 or MRE 106. See 

People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003).

Moreover, defendant has not shown that defense counsel’s failure to request the redaction 

of part of the recording fell below an objective standard of reasonableness under prevailing 

professional norms. Gioglio, 296 Mich App at 22. Defense counsel argued that the jury should 

closely examine defendant’s body language and demeanor during the video. She suggested that 

the police officers prodded him and got him to give answers that fit their theory (the version of 

events offered by Ashley), but that the totality of the circumstances showed that defendant did 

not really know what happened. She further suggested that the evidence showed that defendant

only confessed to the murder because he was trying to cover for Ashley. Given this theory, a 

reasonable trial lawyer might conclude that it would be better to allow the jury to see the whole 

recording rather than redact portions and leave the jury guessing about the redacted portions. 

Indeed, defendant responded to the inadmissible question about other killings by informing the 

officers that he told Ashley things to make her feel better about the victim’s death. The

statement fit with the defense theory that defendant would say or do anything to help Ashley, 

which permitted an inference that defendant might not have been telling the truth when he told 

the officers that he killed the victim. Because this Court can conceive of a legitimate strategic 

reason for failing to request the redaction, we cannot conclude that defense counsel’s failure to 
-17-

request the redaction fell below an objective standard of reasonableness under prevailing 

professional norms. See id.

Finally, even if we were to assume that defense counsel’s performance fell below an 

objective standard of reasonableness, we nevertheless conclude that it was not reasonably 

probable that these failures affected the outcome of the trial. The evidence of defendant’s guilt 

was overwhelming and whatever prejudice might have been caused by these failures did not 

affect the outcome of the trial. See id. Defendant has not identified any ground for precluding 

the introduction of the recording at issue at trial, and he has not shown that defense counsel’s 

handling of the admission of that recording constituted ineffective assistance. The trial court did 

not err when it admitted the recording.

F. ASSERTION OF THE FIFTH AMENDMENT

1. STANDARDS OF REVIEW

We next consider defendant’s claim that the trial court and prosecutor deprived him of a 

fair trial when they allowed Ashley to assert her Fifth-Amendment rights in the presence of the 

jury. This Court reviews de novo claims of constitutional error, prosecutorial misconduct, and 

interpretation of evidentiary rules. This Court reviews the effect of an unpreserved constitutional 

error under the plain-error standard, People v Shafier, 483 Mich 205, 211; 768 NW2d 305 

(2009), and a trial court’s evidentiary decision for an abuse of discretion, People v Roper, 286 

Mich App 77, 90; 777 NW2d 483 (2009).

2. ANALYSIS

Our Supreme Court discussed the types of error implicated when a witness asserts his 

Fifth-Amendment rights before the jury in People v Gearns, 457 Mich 170; 577 NW2d 422 

(1998),2 overruled in part on other grounds by People v Lukity, 460 Mich 484, 494; 596 NW2d 

607 (1999). The Gearns Court indicated that a witness’s assertion of the Fifth Amendment in 

front of a jury implicates evidentiary error and two types of constitutional error—the defendant’s 

right to confront the witness and prosecutorial misconduct that interferes with the right to due 

process. Id. at 180, 187-188, 193.

Defendant argues that Ashley’s assertion of the Fifth Amendment before the jury violated 

his right to cross-examine her. As our Supreme Court stated in Gearns, however, a defendant’s 

right to confront a witness in the context of the witness’s assertion of her Fifth Amendment right 

 2 Although the Gearns Court was divided, a majority of the justices concurred with Justice 

BRICKLEY’S recitation and application of the constitutional and evidentiary law. See Gearns, 

457 Mich at 208 (opinion by CAVANAGH, J.) (concurring in Part IV of Justice BRICKLEY’S

opinion, which addressed evidentiary error), 222 (opinion by WEAVER, J.) (joining Justice 

BRICKLEY’S constitutional analysis, which was Part III of his opinion). Accordingly, Sections III 

and IV of Justice BRICKLEY’S opinion represent binding law. See Felsner v McDonald Rent-ACar, Inc, 193 Mich App 565, 569; 484 NW2d 408 (1992).
-18-

does not arise unless there was substantive evidence put before the jury in the form of testimony 

or its functional equivalent. Id. at 182. The prosecutor never got the opportunity to ask Ashley a 

question. Thus, her assertion of a privilege was not associated with any questions that could 

serve as the functional equivalent of testimony. See id. at 186-187.

The prosecutor did state in his opening statement that Ashley would testify and had 

implicated defendant in the shooting, but he did not elaborate on the specifics of her proposed 

testimony. Furthermore, the prosecutor’s statement that Ashley would link defendant to the 

shooting was not a vital component of the case because that fact was overwhelmingly established 

by defendant’s statement to the police, his admissions to Temples, and the physical evidence that 

corroborated his statements. Notably, the prosecutor did not paraphrase any proposed statements 

by Ashley that implicated premeditation, and he did not rely on her statements in his closing

argument. Moreover, because the opening statement was separated in time from Ashley’s 

assertion of the privilege, defense counsel responded to the prosecutor’s summary in her opening 

statement, and the trial court instructed the jury that the parties’ opening statements were not 

evidence, it cannot be said that the prosecutor’s statements amounted to the functional equivalent 

of testimony. See id. Under these circumstances, defendant has not established that he was 

deprived of his right to confront Ashley. Finally, merely calling Ashley as a witness was 

insufficient to establish prosecutorial misconduct. Id. at 192. Consequently, her assertion of the 

Fifth Amendment before the jury did not give rise to any plain constitutional error.

Turning to the question of evidentiary error, it is evident that Ashley was an accomplice, 

codefendant, or otherwise intimately connected to the murder. There is nothing in the record to 

suggest, however, that the prosecutor knew that Ashley would assert a privilege to avoid 

testifying. Rather, as already discussed, the record evidence showed that Ashley agreed to testify 

as part of her plea deal, had already pleaded guilty, and both the prosecutor and the defense 

expected her to testify. In the absence of evidence that the prosecutor knew that Ashley would 

assert her privilege in front of the jury, defendant cannot establish a plain evidentiary error. See 

Carines, 460 Mich at 763; Gearns, 457 Mich at 193.

Defendant also argues in passing that he was deprived of the right to confront Ashley

because Sergeant Bradley testified that Ashley’s statements led to defendant’s arrest and that she 

was awaiting sentencing for second-degree murder. Defendant appears to raise these issues in 

the context of his claim that Ashley’s assertion of the Fifth Amendment before the jury 

prejudiced his trial. To the extent that defendant might be asserting independent claims of error 

premised on that testimony, he abandoned those claims by failing to discuss the relevant law and 

how it might apply to the facts of this case. Martin, 271 Mich App at 315.

In any event, Sergeant Bradley did not relate the actual statement that Ashley made to 

police. He merely stated that Ashley gave them information and that information led them to 

arrest defendant. This testimony did not implicate defendant’s right to confront Ashley. See 

People v Dendel (On Second Remand), 289 Mich 445, 452-453; 797 NW2d 645 (2010). 

Defendant has not explained how Sergeant Bradley’s testimony that Ashley was awaiting 

sentencing for second-degree murder was inadmissible. And his testimony to that fact was 

consistent with defense counsel’s eliciting of testimony from Ashley’s sister that she admitted

killing the victim. Thus, even assuming error, there was no prejudice. See Carines, 460 Mich at 

763. Similarly, although the prosecutor remarked in his closing argument that Ashley had 
-19-

pleaded guilty to second-degree murder, which fact was not in evidence because the trial court 

only allowed Sergeant Bradley to state that Ashley was awaiting sentencing for second-degree 

murder, that misstatement was fleeting and was consistent with defense counsel’s theory that 

Ashley alone was responsible for the victim’s death. Any prejudice occasioned by that statement 

was minimal and the trial court’s instruction that the attorney’s remarks were not evidence cured 

whatever marginal prejudice the remark may have caused. See People v Unger, 278 Mich App 

210, 235; 749 NW2d 272 (2008).

G. HEARSAY EVIDENCE

1. STANDARD OF REVIEW

Defendant also argues that the trial court erred when it allowed the prosecutor to elicit 

inadmissible hearsay from Jolene regarding Ashley’s identification of defendant as the shooter. 

The trial court admitted the testimony based on its conclusion that defense counsel opened the 

door to that testimony. This Court reviews a trial court’s decision to admit evidence for an abuse 

of discretion. See Roper, 286 Mich App at 90.

2. ANALYSIS

Hearsay is defined to be 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). Defense counsel elicited testimony from Jolene that Ashley made various 

statements that left the impression that Ashley admitted that she alone killed the victim or that 

some man other than defendant was involved. To the extent that Jolene testified that Ashley 

implicated “some guy,” her testimony was clearly inadmissible hearsay under MRE 801(c) and 

MRE 802. The trial court had the discretion to allow the prosecutor to inquire further of Jolene 

and correct any false impressions that the jury might have had as a result of defense counsel’s 

questioning on direct examination. See Grist v Upjohn Co, 16 Mich App 452, 482-483, 168 

NW2d 389 (1969); United States v Georgiou, 777 F3d 125, 144 (CA 3, 2015). Because the 

prosecutor limited his cross-examination to correcting the false impression that Ashley

implicated some man other than defendant, which was the very harm created by defense 

counsel’s questioning, it cannot be said that the trial court’s decision to allow Jolene’s 

clarification on cross-examination fell outside the range of reasonable outcomes. See People v 

Daniels, 311 Mich App 257, 264-265; 874 NW2d 732 (2015).

Defendant also argues that the admission of the hearsay statements violated his right to 

confront the witnesses against him because he could not cross-examine Ashley about her 

statements to Jolene. The Sixth Amendment to the United States Constitution guarantees the 

right of an accused to confront the witnesses against him. See US Const, Am VI; see also Const 

1963, art 1, § 20. The Confrontation Clause prohibits the admission of out-of-court statements 

that are testimonial in nature unless the declarant was unavailable at trial and the defendant had a 

prior opportunity to cross-examine the declarant. See Crawford v Washington, 541 US 36, 42; 

124 S Ct 1354; 158 L Ed 2d 177 (2004). A statement is testimonial if the declarant should 

reasonably have expected that her statement would be used in a prosecutorial manner and an 

objective witness would believe that the statement would be available for use at a later trial. See 

Dendel, 289 Mich App at 453.
-20-

Jolene testified about private conversations that she had with her sister while driving, at 

work, and at some other unspecified time and place. There was nothing about the context that 

would lead one to conclude that the statements were testimonial in nature. See People v Taylor, 

482 Mich 368, 378; 759 NW2d 361 (2008). Accordingly, the Confrontation Clause did not 

apply.

H. PROSECUTORIAL MISCONDUCT

Defendant next argues that the prosecutor deprived him of a fair and impartial trial by 

making improper remarks during his closing and rebuttal remarks. To preserve a claim of 

prosecutorial misconduct, the defendant must make a timely and specific objection to the 

conduct at trial. See People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Because 

defendant did not object to any of the prosecutor’s remarks, he did not preserve these claims for 

appellate review. Unpreserved claims of prosecutorial misconduct are reviewed for plain error 

affecting substantial rights. Id. at 382.

Defendant argues that the prosecutor made improper remarks during his closing and 

rebuttal arguments. “The purpose of closing argument is to allow attorneys to comment on the 

evidence and to argue their theories of the law to the jury.” People v Finley, 161 Mich App 1, 9; 

410 NW2d 282 (1987). A prosecutor may jeopardize the defendant’s right to a fair trial during 

closing arguments by injecting broader issues than the defendant’s guilt or innocence. See 

People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007).

Defendant argues that the prosecutor improperly stated in his closing remarks that Ashley

pleaded guilty to second-degree murder. Defendant, however, abandoned this claim of 

prosecutorial misconduct by failing to offer any meaningful argument on appeal. See Martin, 

271 Mich App at 315. Moreover, as already explained, to the extent that the prosecutor’s remark 

amounted to arguing a fact not in evidence, the remark did not amount to plain error that 

prejudiced defendant’s trial. See Carines, 460 Mich at 763.

Similarly, defendant’s claim that the prosecutor improperly vouched for Temples in his 

closing remarks is without merit. A prosecutor may not vouch for the credibility of a witness by 

conveying to the jury that he has some special knowledge that the witness is testifying truthfully. 

See People v Bahoda, 448 Mich 261, 277; 531 NW2d 659 (1995). The prosecutor may, 

however, argue from the facts that a witness is worthy of belief. See People v Seals, 285 Mich 

App 1, 22; 776 NW2d 314 (2009).

The prosecutor told the jury that it did not have to rely solely on defendant’s recorded 

statement to police to conclude that he shot the victim because it could also rely on the testimony 

of Temples. Although defendant focuses his criticism of the prosecutor’s remarks on the last 

sentence, indicating that Temples stated the truth, the prosecutor’s remarks must be examined in 

context. See Brown, 294 Mich App at 382-383. When examined as a whole, it is evident that 

the prosecutor did not imply that he had special knowledge that Temples was telling the truth. 

See Bahoda, 448 Mich at 277. Rather, he argued that Temples’ testimony was credible because 

it was corroborated by other evidence, which was a proper argument. See Seals, 285 Mich App 

at 22. Moreover, there was no evidence that Temples had been offered anything or expected 

anything in exchange for his statements to police. Indeed, he stated that he informed police 
-21-

officers about defendant’s statements because it was “the right thing to do.” Therefore, the 

prosecutor could also argue that Temples had nothing to gain by coming forward to the police 

officers. See Bahoda, 448 Mich at 282.

Defendant further argues that the prosecutor improperly argued that defense counsel was 

trying to mislead the jury, which suggests that defense counsel did not believe her own client. A 

prosecutor may not suggest that defense counsel is intentionally attempting to mislead the jury. 

See People v Watson, 245 Mich App 572, 592-593; 629 NW2d 411 (2001). But it is not 

improper for a prosecutor to comment on the weakness of a defense theory. People v Fields, 450 

Mich 94, 115; 538 NW2d 356 (1995). Additionally, a prosecutor’s remarks, which might be 

improper in his closing statement, may be proper when offered to rebut an argument proffered by 

the defense in closing. See Watson, 245 Mich App at 593.

The prosecutor’s remarks were proper comment on the defense theory of the case. The 

prosecutor did not denigrate defense counsel or otherwise suggest that defense counsel did not 

believe her own client. Furthermore, when considered in context and as a response to defense 

counsel’s closing arguments, the prosecutor’s remarks during rebuttal did not amount to 

commenting that defense counsel was intentionally trying to mislead the jury. See id. at 592-

593. Rather, the remarks were proper commentary on the weakness of the defense theory of the 

case. See Fields, 450 Mich at 115. The prosecutor did not engage in any misconduct that 

deprived defendant of a fair trial.

I. SUFFICIENCY OF THE EVIDENCE

Finally, defendant argues that the prosecutor failed to present sufficient evidence from 

which a reasonable jury could find that he killed the victim with premeditation. This Court 

reviews a challenge to the sufficiency of the evidence by examining the “record evidence de 

novo in the light most favorable to the prosecution to determine whether a rational trier of fact 

could have found that the essential elements of the crime were proved beyond a reasonable 

doubt.” Roper, 286 Mich App at 83.

First-degree murder is, in relevant part, “[m]urder perpetrated by means of poison, lying 

in wait, or any other willful, deliberate, and premeditated killing,” or murder “committed in the 

perpetration of, or attempt to perpetrate” certain enumerated offenses. MCL 750.316(1). It is, in 

essence, second-degree murder with an added element. See People v Carter, 395 Mich 434, 437; 

236 NW2d 500 (1975). When first-degree murder is premised on premeditation, the prosecutor

must prove that the defendant acted with the intent to kill the victim and must show that he acted 

deliberately and with premeditation. See People v Dykhouse, 418 Mich 488, 495; 345 NW2d 

150 (1984).

A murder is committed deliberately if done without adequate provocation—that is to say 

while undisturbed by hot blood, People v Scott, 6 Mich 287, 294 (1859); People v Morrin, 31 

Mich App 301, 330-331; 187 NW2d 434 (1971), rejected not in relevant part by People v Reese, 

491 Mich 127, 147-148; 815 NW2d 85 (2012) (stating that then-Judge LEVIN’s discussion if 

imperfect self-defense was obiter dictim), and it is premeditated if the perpetrator had the 

opportunity to consider his or her actions for some length of time before completing the murder, 

People v Tilley, 405 Mich 38, 44-46; 273 NW2d 471 (1979); see also People v Oros, 502 Mich 
-22-

229, 242-244; 917 NW2d 559 (2018) (discussing the proofs necessary to show premeditation and 

deliberation).

In proving an actor’s state of mind, the jury may rely on circumstantial evidence and the 

reasonable inferences arising from that evidence; indeed, minimal circumstantial evidence is 

sufficient to establish that a defendant had the intent to kill and proceeded with deliberation and 

premeditation. Unger, 278 Mich App at 223. The prosecutor may establish premeditation and 

deliberation through evidence of the parties’ prior relationship, the defendant’s actions before the 

killing, the circumstances surrounding the killing itself, or the defendant’s conduct after the 

killing. People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992).

The prosecutor presented defendant’s own words to establish that defendant shot the 

victim in the back seat of defendant’s vehicle. Defendant told police that he shot the victim three 

or four times with a .45 caliber revolver. Defendant indicated that he was with Ashley, that the 

victim was in the backseat, and that they had driven outside of town for about 30 minutes when 

he shot the victim. Additionally, defendant indicated to the officers that he loved Ashley and her 

children, and he stated that the victim was preventing Ashley from being reunited with her 

children, which suggested that defendant had a motive to kill the victim. Defendant also 

indicated that no one else was helping Ashley and that her father was not in a position to “do it.” 

He stated that he had never met the victim before the day of the shooting, and he even needed 

Ashley to identify the victim. Therefore, there was sufficient evidence to establish 

premeditation, and defendant’s final claim for relief fails.

III. CONCLUSION

After being taken into custody for questioning and being advised of his Miranda rights, 

defendant invoked his right to remain silent. Just moments later, he reinitiated discussions with 

the police and confessed. Under the totality of the circumstances, the police did not need to 

reread defendant’s Miranda rights to him before the second discussion began. Furthermore, as 

explained, there is no other ground to reverse defendant’s convictions for first-degree murder and 

felony firearm. Accordingly, we affirm his convictions.

/s/ Brock A. Swartzle

/s/ Elizabeth L. Gleicher

/s/ Michael J. Kelly