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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 12, 2016 

v No. 314341 

Wayne Circuit Court 

JEREMY DEWAYNE BROWN, LC No. 12-005176-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 314342 

Wayne Circuit Court 

BRANDON LEWIS CAIN, LC No. 12-005176-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 314712 

Wayne Circuit Court 

REGINALD VAUGHN BROWN, LC No. 12-005176-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 316110 

Wayne Circuit Court 

BRIAN CHRISTOPHER LEE, LC No. 12-005176-FC 

 Defendant-Appellant. 
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Before: TALBOT, C.J., and CAVANAGH and K. F. KELLY, JJ. 

PER CURIAM. 

 Defendants Jeremy Dewayne Brown (J. Brown), Brandon Lewis Cain, Reginald Vaughn 

Brown (R. Brown), and Brian Christopher Lee were tried jointly, before two separate juries. 

One jury convicted J. Brown of two counts of first-degree premeditated murder, MCL 

750.316(1)(a), two counts of first-degree felony murder, MCL 750.316(1)(b), and two counts of 

torture, MCL 750.85, and it convicted defendant R. Brown of two counts of first-degree 

premeditated murder, two counts of first-degree felony murder, two counts of torture, two counts 

of unlawful imprisonment, MCL 750.349b, and possession of a firearm during the commission 

of a felony (felony-firearm), MCL 750.227b. Another jury convicted Cain of two counts of firstdegree premeditated murder, two counts of first-degree felony murder, two counts of torture, two 

counts of unlawful imprisonment, felon in possession of a firearm, MCL 750.224f, and felonyfirearm, and it convicted Lee of four counts of second-degree murder. MCL 750.317. 

 The trial court sentenced J. Brown to life in prison for each murder conviction and 20 to 

50 years in prison for each torture conviction, to be served concurrently. The court sentenced R. 

Brown to life in prison for each murder conviction, 20 to 50 years in prison for each torture 

conviction, and 35 months to 15 years in prison for each unlawful imprisonment conviction, to 

be served concurrently, but consecutive to a two-year term of imprisonment for the felonyfirearm conviction. It sentenced Cain to life in prison for each murder conviction, 20 to 50 years 

in prison for each torture conviction, 3 to 15 years in prison for each unlawful imprisonment 

conviction, and one to five years for the felon-in-possession conviction, to be served 

concurrently, but consecutive to a two-year term of imprisonment for the felony-firearm 

conviction. Lastly, the court sentenced Lee to 45 to 80 years in prison for each second-degree 

murder conviction, to be served concurrently. All four defendants appeal as of right, and their 

appeals have been consolidated. We remand for correction of the judgments of sentence to 

vacate defendants’ duplicative murder convictions and sentences, and remand for a Crosby1

hearing with respect to Lee’s departure sentences, but affirm defendants’ convictions and 

sentences in all other respects. 

 Defendants’ convictions arise from the abduction, torture, and murder of best friends, 18-

year-old Abreeya Brown (Brown) and 21-year-old Ashley Conaway, after they refused to 

discontinue the prosecution of defendants Cain and Lee for a separate shooting incident weeks 

earlier.2

 Brown and Conaway were abducted on the evening of February 28, 2012. They were 

placed in the trunk of a vehicle and, for a short while, were able to use their cell phones to 

 

1 United States v Crosby, 397 F3d 103 (CA 2, 2005). 

2

 Cain and Lee were each convicted of two counts of assault with intent to commit murder, MCL 

750.83, and Lee was also convicted of felony-firearm, in connection with the earlier shooting 

incident. This Court affirmed those convictions in People v Lee and People v Cain, unpublished 

opinion per curiam of the Court of Appeals, issued April 21, 2015 (Docket Nos. 313302 & 

313303), lv den ___ Mich ___ (9/29/2015) (Docket Nos. 151647 & 151774). 
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communicate with friends and family members from their location in the trunk, but they were not 

seen or heard from afterward. On March 24, 2012, the police found the victims’ bodies buried in 

shallow graves in Eliza Howell Park. Autopsies revealed that each victim had been shot in the 

head at close range.3

I. DOCKET NO. 314341 – J. BROWN’S APPEAL 

A. SUFFICIENCY OF THE EVIDENCE 

 J. Brown argues that there was insufficient evidence to support his convictions, arguing 

instead that the evidence only showed that he was an accessory after the fact. We disagree. 

 A challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, by 

reviewing the evidence in the light most favorable to the prosecution to determine whether the 

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

reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). “All 

conflicts with regard to the evidence must be resolved in favor of the prosecution.” People v 

Wilkens, 267 Mich App 728, 738; 705 NW2d 728 (2005). 

 An accessory after the fact is a substantive offense. People v Perry, 460 Mich 55, 62; 

594 NW2d 477 (1999); People v Lucas, 402 Mich 302, 304-305; 262 NW2d 662 (1978). “An 

‘accessory after the fact’ . . . is ‘one who, with knowledge of the other’s guilt, renders assistance 

to a felon in the effort to hinder his detection, arrest, trial or punishment.’ ” Id., 402 Mich at 304 

(citation omitted). In contrast, the elements necessary to convict a defendant under an aiding and 

abetting theory are: 

(1) the crime charged was committed by the defendant or some other person; (2) 

the defendant performed acts or gave encouragement that assisted the commission 

of the crime; and (3) the defendant intended the commission of the crime or had 

knowledge that the principal intended its commission at the time that [the 

defendant] gave aid and encouragement. [People v Plunkett, 485 Mich 50, 61; 

780 NW2d 280 (2010) (citations and quotation marks omitted).] 

“[A] defendant who has helped both before and after a crime is [guilty] as a principal.” People v 

Hartford, 159 Mich App 295, 301; 406 NW2d 276 (1987). 

 “The elements of first-degree murder are (1) the intentional killing of a human (2) with 

premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 

(2010). Premeditation means “to think about beforehand,” and deliberation means “to measure 

and evaluate the major facets of a choice or problem.” People v Plummer, 229 Mich App 293, 

300; 581 NW2d 753 (1998) (citation and quotation omitted). Premeditation and deliberation 

 

3

 Another codefendant, Miguel Rodriguez, was also charged in this case, but as discussed further 

below, he pleaded guilty to two counts of second-degree murder and was sentenced to 20 to 35 

years in prison. His convictions and sentences are not at issue on appeal. 
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“may be inferred from the circumstances surrounding the killing.” People v Anderson, 209 Mich 

App 527, 537; 531 NW2d 780 (1995). “Premeditation may be established through evidence of 

(1) the prior relationship of the parties, (2) the defendant’s actions before the killing, (3) the 

circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.” People v 

Unger, 278 Mich App 210, 229; 749 NW2d 272 (2008). 

 In People v Burks, 308 Mich App 256, 264; 864 NW2d 580 (2014), this Court, quoting 

People v Gayheart, 285 Mich App 202, 210; 776 NW2d 330 (2009), observed: 

 The elements of felony murder are (1) the killing of a human being, (2) 

with the intent to kill, to do great bodily harm, or to create a very high risk of 

death or great bodily harm with knowledge that death or great bodily harm was 

the probable result, (3) while committing, attempting to commit, or assisting in 

the commission of any of the felonies specifically enumerated in MCL 

750.316(1)(b) [including torture]. 

 MCL 750.85 provides: 

 A person who, with the intent to cause cruel or extreme physical or mental 

pain and suffering, inflicts great bodily injury or severe mental pain or suffering 

upon another person within his or her custody or physical control commits torture 

and is guilty of a felony punishable by imprisonment for life or any term of years. 

 Contrary to J. Brown’s argument that he was only an accessory after the fact, there was 

sufficient evidence for a reasonable trier of fact to conclude that he was an aider or abettor, if not 

a principal—helping before, during, and after the crimes. From the exchange of text messages, 

between R. Brown and J. Brown on the day before the victims’ kidnapping, the jury could infer 

that J. Brown was anticipating a windfall, which required planning and his assistance to acquire a 

gun and a car. The jury could also infer, from J. Brown’s actions, that the windfall involved 

defendants’ plan to torture and kill Conaway and Brown. As discussed further below, the record 

demonstrated that J. Brown’s phone number was ***-***-9038, and his phone was used near the 

scene of the kidnapping—a place it had never been used previously—immediately before the 

kidnapping. As the prosecutor argued, the jury could therefore infer that, from his presence, J. 

Brown aided the kidnapping by serving as a lookout. Furthermore, the women were buried in 

Eliza Howell Park. Given that J. Brown’s phone was used near the park just hours before the 

crime, the prosecutor argued that the jury could infer that J. Brown was “scouting out” that burial 

location ahead of time. In addition to serving as a scout and a lookout, however, the jury could 

also infer that J. Brown offered aid and encouragement to defendants by meeting R. Brown after 

the shooting and burial, assisting with cleaning the weapon, setting fire to the silver Chrysler 

Sebring, which was used to transport the victims in the trunk, and providing a getaway to R. 

Brown as emergency personnel responded to the fire. Finally, from text messages involving R. 

Brown, the jury could infer that J. Brown’s motive with these crimes was the $10,000 that R. 

Brown was splitting with “J.” See People v Henderson, 306 Mich App 1, 11; 854 NW2d 234 

(2014). 

 J. Brown claims on appeal that there is no evidence that he was the person using the 

phone at the scenes of the abduction and burial. Again, as discussed further below, it was 
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reasonable for the jury to infer that J. Brown was the person using that phone given who he was 

communicating with—his acquaintances and relatives (including his cousins, R. Brown and 

Miguel Rodriguez)—and witness testimony confirming that J. Brown was, in fact, in the places 

where and when the cell phone records show his phone was being used. In any event, weighing 

the evidence, drawing reasonable inferences from the evidence, and making credibility 

determinations are tasks within the exclusive province of the jury and will not be second-guessed 

by this Court. Unger, 278 Mich App at 232; People v Gadomski, 232 Mich App 24, 28; 592 

NW2d 75 (1998). The evidence was sufficient to establish J. Brown’s guilt of the charged 

crimes. 

B. JUDICIAL BIAS (VOIR DIRE) 

 During voir dire for the R. Brown/J. Brown jury, a prospective juror asked to be excused 

the following day for a Muslim holiday (Eid-al-Adha). Initially, the trial court excused members 

of the jury pool celebrating the holiday. Only after some of the prospective jurors began to leave 

did the trial court ask the parties if they had any objection. The prosecutor did not object. The 

following exchange then occurred on the record: 

J. Brown’s Attorney: Judge, I respect everybody’s religion. But I have 

some concerns, in terms of - - 

Trial court: Okay. Then- - then I can’t excuse you. I’m sorry. 

J. Brown’s Attorney: Well, but, Judge, I don’t want to be looking like- - 

Trial court: Well, sir, you can’t have it both ways. 

I’m sorry. I can’t excuse you. No, no, no, I’m not excusing them. Get 

everybody back in. I’m not excusing those ladies either. See if we can catch 

them. Have everybody come in. 

Deputy: All right. Everybody have a seat, again. 

Trial court: Just everybody come on in. Everybody come back in. The 

two that we excused for the holiday, we’re going to bring them back in. We’ll 

just notify the jury pool to bring them back in. I’m going to cancel their holiday. 

 A defendant has the right to a fair and impartial trial under both the United States and 

Michigan Constitutions. See US Const, Am VI; Const 1963, art 1, § 20. This right is violated 

when the trial court’s conduct “pierces the veil of judicial impartiality.” People v Conley, 270 

Mich App 301, 307-308; 715 NW2d 377 (2006). Although “a trial judge has wide discretion and 

power in matters of trial conduct,” a trial court pierces the veil of judicial impartiality when its 

conduct or comments are “of such a nature as to unduly influence the jury and thereby deprive 

the appellant of his right to a fair and impartial trial.” People v Jackson, 292 Mich App 583, 

598; 808 NW2d 541 (2011) (citations and quotation marks omitted). 

 “A defendant claiming judicial bias must overcome a heavy presumption of judicial 

impartiality.” Id. (citation and quotation marks omitted). A judge’s opinions or judicial rulings 
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are not valid grounds for alleging bias “unless there is a deep-seated favoritism or antagonism 

such that the exercise of fair judgment is impossible.” Id., quoting People v Wells, 238 Mich 

App 383, 391; 605 NW2d 374 (1999) (quotation marks omitted); see also Armstrong v Twp of 

Ypsilanti, 248 Mich App 573, 596; 640 NW2d 321 (2001). In addition, “[c]omments that are 

critical of or hostile to counsel and the parties are generally not sufficient to pierce the veil of 

impartiality.” Jackson, 292 Mich App at 598. 

 A trial court should, to the extent practical, make its rulings outside the presence of the 

jury. MRE 103(c). But here, the trial court had already made a ruling excusing the prospective 

jurors and defense counsel did not object until some had already left. It is unclear from the 

record how many, if any, prospective jurors heard counsel’s objection first-hand. In any event, 

the trial court logically explained defense counsel’s objection to the prospective jurors when she 

called them all back to the courtroom and changed her ruling. Nothing in the trial court’s ruling 

evidences deep-seated favoritism or antagonism toward either defense counsel or J. Brown. Cf. 

Wells, 238 Mich App at 391 (even calling a defendant’s attorney a liar, while punishing the 

attorney, did not indicate a bias or prejudice against the defendant). Rather, the trial court 

merely chronicled what had happened as a means of explanation. Therefore, J. Brown cannot 

overcome the heavy presumption of judicial impartiality. See Jackson, 292 Mich App at 598. 

 Even if we were to conclude that the trial court’s statement amounted to error, it was 

harmless beyond a reasonable doubt. See People v Anderson, 446 Mich 392, 405; 521 NW2d 

538 (1994). Before and after the evidence was presented, the trial court instructed the jury to 

ignore any opinions it believed the trial court possessed about the case, and to “set aside any bias 

or prejudice.” “Jurors are presumed to follow their instructions, and instructions are presumed to 

cure most errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). In 

addition, defense counsel had an opportunity to explain his objection on the record, in the 

presence of all the prospective jurors that heard the trial court’s statement. As a result, the jury 

learned that his objection was not made out of disrespect for anyone’s religious beliefs, but 

instead was intended to ensure that defendants had a jury that was representative of the crosssection of the local community, including Muslim citizens. Nothing in the record demonstrates 

that J. Brown suffered any prejudice from counsel’s objection or the trial court’s comments. On 

the contrary, even one prospective juror, who was initially upset that she could not celebrate the 

holiday, testified that she could be fair and would not hold grudges against defendants for this 

situation. Again, J. Brown cannot overcome the heavy presumption of judicial impartiality and 

even if the trial court erred, any error was harmless beyond a reasonable doubt. 

C. CELL PHONE RECORDS 

 Next, J. Brown argues that the trial court erred by admitting cell phone records without 

an adequate foundation. We disagree. 

 This Court reviews a trial court’s decision regarding the admission of evidence for an 

abuse of discretion. Unger, 278 Mich App at 216. An abuse of discretion occurs when a trial 

court “chooses an outcome that is outside the range of reasonable and principled outcomes.” 

People v Waclawski, 286 Mich App 634, 670; 780 NW2d 321 (2009). 
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 “The rule governing the admission of physical evidence requires that a proper foundation 

be laid and that the articles be identified as that which they purport to be and that the articles are 

shown to be connected with the crime or with the accused.” People v Furman, 158 Mich App 

302, 331; 404 NW2d 246 (1987). MRE 901(a) provides that for a document to be admissible, it 

must be authenticated by the introduction of “evidence sufficient to support a finding that the 

matter in question is what its proponent claims.” MRE 901(b) delineates, “[b]y way of 

illustration only, and not by way of limitation,” various means or methods of authentication or 

identification to comply with “the requirements of this rule.” MRE 901(b)(1) permits 

authentication through the elicitation of testimony from a “witness with knowledge . . . that a 

matter is what it is claimed to be.” MRE 901(b)(4) also permits authentication by “distinctive 

characteristics,” meaning “[a]ppearance, contents, substance, internal patterns, or other 

distinctive characteristics, taken in conjunction with circumstances.” MRE 901(b)(6) permits 

identification of a telephone conversation with “evidence that a call was made to the number 

assigned at the time . . . to a particular person . . . if . . . circumstances, including selfidentification, show the person answering to be the one called . . . .” Identification need not be 

“absolute or certain.” People v O’Brien, 113 Mich App 183, 204; 317 NW2d 570 (1982).4

 

“Once a proper foundation has been established, any deficiencies in the chain of custody go to 

the weight afforded to the evidence, rather than its admissibility.” People v White, 208 Mich 

App 126, 133; 527 NW2d 34 (1994). 

 Jasmine Richbow testified that she called J. Brown for her fiancé, Raymon Brown, 

approximately four times during the same week of the kidnapping, or the month before. She 

further testified that she recalled J. Brown’s cell phone number was ***-***-9038. Text 

messages sent before the kidnapping also linked J. Brown to this Metro PCS phone number—

identifying the sender “Jeremy,” with J. Brown’s address and birthday. 

 In addition, United States Marshall John Jaehnig, who compiled the cell phone records 

and testified about the phones’ usage at trial, testified that some cellular providers, including 

Metro PCS, do not verify the name of the subscriber. Even though Metro PCS had no record of 

J. Brown’s legal name associated with ***-***-9038, the subscriber’s name was “Ju Ju.” At 

trial, the prosecution played a jail call involving an inmate, who used J. Brown’s pin number. 

During the call, the inmate was called “Ju Ju” by the woman on the other end of the line. From 

these facts, the jury could infer that J. Brown’s nickname was Ju Ju, and he used it to subscribe 

for the phone. 

 J. Brown argues that even if ***-***-9038 was his phone number, the prosecutor failed 

to offer evidence identifying him as the person who used the phone at the time of the charged 

crimes. Again, under MRE 901(b), one way to authenticate a phone record is to show a call was 

made to the number assigned to a particular person at the time and circumstances establishing the 

person who answered was the one called. Jaehnig’s testimony regarding the towers utilized by 

***-***-9038 around the time of the crimes allowed the jury to infer that it was J. Brown 

making and receiving calls and texts. Most importantly, ***-***-9038 was utilized in the Eliza 

 

4

 See MCR 7.215(J)(1). 
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Howell Park area from about 1:00 to 2:00 a.m. Richbow confirmed that J. Brown, in fact, was 

with her in that same area during that time period. That the tower usage showed that the phone 

returned to J. Brown’s neighborhood on Beresford—both between the abduction and after J. 

Brown’s visit to Richbow and the fire—and that the number was used to call J. Brown’s friends 

and relatives, also allowed the jury to infer that it was J. Brown making and receiving calls and 

texts. Again, the foundation need not have identified J. Brown as the user with absolute 

certainty. See O’Brien, 113 Mich App at 204. Therefore, the trial court did not abuse its 

discretion by concluding that the prosecutor introduced evidence to establish a proper foundation 

for the admission of cell phone records for ***-***-9038. 

II. DOCKET NO. 314342 – CAIN’S APPEAL 

A. EFFECTIVE ASSISTANCE OF COUNSEL – CELL PHONE RECORDS EXPERT

 Cain also complains about the admission of the cell phone records by arguing that 

defense counsel was ineffective for failing to call an expert to refute Jaehnig’s testimony. We 

disagree. Because Cain did not raise this issue in an appropriate motion in the trial court and this 

Court denied his motion to remand, our review is limited to errors apparent from the record. See 

People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004); People v Wilson, 242 Mich 

App 350, 352; 619 NW2d 413 (2000). 

 The United States and Michigan Constitutions guarantee a defendant the right to the 

effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish 

ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was 

below an objective standard of reasonableness under prevailing professional norms, and (2) that 

there is a reasonable probability that, but for counsel’s deficient performance, the result of the 

proceedings would have been different. Strickland v Washington, 466 US 668, 688, 694; 104 S 

Ct 2052; 80 L Ed 2d 674 (1984); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 

(2012). A “reasonable probability” is a probability sufficient to undermine confidence in the 

outcome. Strickland, 466 US at 694. 

 Effective assistance of counsel is presumed, and the defendant bears a substantial burden 

of proving otherwise. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). A 

defendant can overcome the presumption by showing that counsel failed to perform an essential 

duty and that failure was prejudicial to the defendant. People v Reinhardt, 167 Mich App 584, 

591; 423 NW2d 275 (1988), remanded on other grounds 436 Mich 866 (1990). Counsel’s 

strategic judgments are afforded deference, Wiggins v Smith, 539 US 510, 521-522, 528; 123 S 

Ct 2527; 156 L Ed 2d 471 (2003), but strategic choices made after an incomplete investigation 

are reasonable only to the extent that reasonable professional judgments support the limitation on 

investigation. Id. at 521-522; Trakhtenberg, 493 Mich at 52-55. 

 The failure to reasonably investigate a case can constitute ineffective assistance of 

counsel. Trakhtenberg, 493 Mich at 51-55. However, defense counsel has extensive discretion 

on matters of trial strategy. People v Heft, 299 Mich App 69, 83; 829 NW2d 266 (2012). 

Decisions regarding whether to retain witnesses, including expert witnesses, are matters of trial 

strategy. People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003). “[A]n attorney’s

selection of an expert witness may be a ‘paradigmatic example’ of trial strategy, [but] that is so 
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only when it is made ‘after thorough investigation of [the] law and facts’ in a case.” People v 

Ackley, 497 Mich 381, 390; 870 NW2d 858 (2015), quoting Hinton v Alabama, ___ US ___, 134 

S Ct 1081, 1088; 188 L Ed 2d 1 (2014) (emphasis in Ackley). “[T]he failure to call witnesses 

only constitutes ineffective assistance of counsel if it deprives the defendant of a substantial 

defense.” People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004). A substantial 

defense is one that might have made a difference in the outcome of the trial. People v Marshall, 

298 Mich App 607, 612; 830 NW2d 414 (2012), vacated in part on other grounds 493 Mich 1020 

(2013). 

 Cain cannot establish that counsel’s failure to call an expert regarding the cell phone 

records was anything but strategic. Nothing in the record establishes that counsel failed to 

consult with an expert, or made his decision not to retain an expert before deciding on a trial 

strategy. Instead, the record demonstrates that although counsel did not call an expert to testify, 

he cross-examined Jaehnig about the fact that he was not qualified as an expert and attempted to 

impeach the cell phone records by eliciting that (1) none of the phone records actually had a 

subscriber name of “Brandon Cain” or established that he was the subscriber with, for example, a 

handwriting sample of the subscriber, (2) Jaehnig did not research records for a number Cain 

acknowledged as his own, (3) the motive for Cain’s involvement in the crimes was to silence the 

victims, who intended to prosecute him for an earlier February 8, 2012 shooting, and Cain first 

allegedly tried to buy their silence, but there was no evidence of any communication in the cell 

phone records for the victims and Cain around the time of the earlier shooting, and (4) Jaehnig 

had no evidence that Cain was actually the person using the phone numbers associated with him 

at any time. In addition, counsel used closing argument to discredit Jaehnig, arguing that he 

worked for the government, so his research would have a government-bias and his data were so 

“mangled and confusing” that it was unbelievable. Counsel reminded the jury in closing that 

there was no proof that Cain was actually using the phone. Again, there is no evidence that 

counsel made these strategic decisions about cross-examination and closing argument without 

first investigating whether to call his own cell phone records expert and declining to do so. 

 Additionally, Cain cannot establish a reasonable probability that calling an expert would 

have made a difference in the result of the proceedings. See Trakhtenberg, 493 Mich at 51. As 

Cain explains in his brief, no expert has reviewed the records or offered any proposed testimony 

contrary to that provided by Jaehnig.5

 Moreover, there was overwhelming evidence of Cain’s 

guilt even without the cell phone records. Again, Cain had a motive to silence the victims. 

Brown’s stepfather, Major Chapman, testified that while Brown was dragged to the trunk of a 

 

5

 Although Cain states in his question presented that Jaehnig’s testimony was not based on 

scientific analysis and did not meet the reliability standard in Daubert v Merrell Dow Pharm, 

Inc, 509 US 579, 590; 113 S Ct 2786; 125 L Ed 2d 469 (1993), the Daubert standard applies to 

expert testimony and Jaehnig did not testify as an expert. Aside from merely citing a law review 

article that discusses cell phone records and Daubert, Cain makes no argument in his brief 

regarding why the Daubert standard should nevertheless apply. Therefore, Cain has abandoned 

this argument. See People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001) 

(holding that failure to brief a question on appeal is tantamount to abandoning it). 
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car, Cain fired shots at their home. In addition, the jury could infer that Cain sought out money 

from Andre Douglas on the night of the kidnapping to pay his accomplices for the kidnapping 

and murders. Eyewitness testimony placed Cain at Eliza Howell Park and the jury could infer 

that, around the same time, the victims were buried in the park. Finally, the jury could find that 

Cain was conscious of his guilt on the night of the kidnapping when he told one of his 

girlfriends, Audrey Christina Glenn, that she would no longer have to worry about Conaway 

competing for his affections. Given the presumption that counsel acted strategically and the 

absence of evidence establishing prejudice, Cain was not denied the effective assistance of 

counsel. 

B. SEVERANCE 

 Next, Cain argues that the trial court should have granted his motion to have a separate 

jury from Lee, or a separate trial. We disagree. “This Court reviews a trial court’s decision 

regarding severing the trials of multiple defendants for an abuse of discretion.” People v Bosca, 

310 Mich App 1, 51; 871 NW2d 307 (2015); see also MCL 768.5. 

 “There is a strong policy favoring joint trials in the interest of justice, judicial economy, 

and administration, and a defendant does not have an absolute right to a separate trial.” People v 

Etheridge, 196 Mich App 43, 52; 492 NW2d 490 (1992). A trial court must sever the trial of 

codefendants on related offenses only when the defendant shows that “severance is necessary to 

avoid prejudice to substantial rights of the defendant.” MCR 6.121(C); Etheridge, 196 Mich 

App at 53. Under MCR 6.121(D), a trial court has the discretion to grant a request for severance 

“on the ground that severance is appropriate to promote fairness to the parties and a fair 

determination of the guilt or innocence of one or more of the defendants.” When determining if 

severance is appropriate, a trial court may consider factors like “the potential for confusion or 

prejudice stemming from either the number of defendants or the complexity or nature of the 

evidence” and “the convenience of witnesses.” MCR 6.121(D). 

 To show that severance is necessary, a defendant must provide the court with a 

supporting affidavit, or make an offer of proof, “that clearly, affirmatively, and fully 

demonstrates that his substantial rights will be prejudiced and that severance is the necessary 

means of rectifying the potential prejudice.” People v Hana, 447 Mich 325, 346; 524 NW2d 682 

(1994); see also MCR 6.121(C). Such a showing is not made by codefendants’ plans to present 

inconsistent defenses. Hana, 447 Mich at 349. The Supreme Court in Hana further explained: 

 It is natural that defendants accused of the same crime and tried together 

will attempt to escape conviction by pointing the finger at each other. Whenever 

this occurs the co-defendants are, to some extent, forced to defend against their 

co-defendant as well as the government. This situation results in the sort of 

compelling prejudice requiring reversal, however, only when the competing 

defenses are so antagonistic at their cores that both cannot be believed. 

Consequently, we hold that a defendant seeking severance based on antagonistic 

defenses must demonstrate that his or her defense is so antagonistic to the codefendants that the defenses are mutually exclusive. Moreover, defenses are 

mutually exclusive within the meaning of this rule if the jury, in order to believe 

the core of the evidence offered on behalf of one defendant, must disbelieve the 
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core of the evidence offered on behalf of the co-defendant. [Id. at 349-350, 

quoting State v Kinkade, 140 Ariz 91, 93; 680 P2d 801 (1984).] 

 During the pretrial motion hearing for severance, Cain’s attorney referenced the fact that 

Cain and Lee received separate juries in their trial for the February 8 shooting incident. But he 

only argued that defendants had similarly antagonistic defenses in this case, without providing 

any explanation of those defenses. Therefore, Cain failed to clearly, affirmatively, and fully 

demonstrate how his substantial rights would be prejudiced if Cain and Lee shared a jury for this 

trial. See id. at 346-347. 

 Furthermore, nothing in the record demonstrates the prejudice required by MCR 

6.121(C). Both Cain and Lee argued that they were not the perpetrators, but instead were merely 

present in the neighborhoods where some of the crimes occurred. They also denied having any 

motive for the kidnapping and murders—Cain arguing he did not order the February 8 shooting, 

and Cain and Lee both arguing that others besides Lee, such as Glen Hunter, Marlin Church, or 

Andre Douglas, actually fired the gun. In addition, both Cain and Lee argued that the prosecutor 

promised to produce Rodriguez to tie them to the crimes, but failed to fulfill that promise. 

Finally, Cain placed some of the blame on the victims themselves, arguing that they participated 

in high risk activities, such as visiting strip clubs and threatening rivals, and attempted to refute 

the prosecutor’s claim that he had a serious relationship with Conaway, whom he sought to 

control through violence. 

 On appeal, Cain now argues that if the motion for severance had been granted, he would 

have argued that Lee, alone, had a motive to commit the crimes to silence the victims. But 

nothing in the record actually demonstrates such finger pointing. In addition, Cain’s finger 

pointing regarding motive would not have been so antagonistic with Lee’s defense that the 

defenses would have been mutually exclusive. Specifically, motive is not an element of the 

charged crimes. See People v Fisher, 193 Mich App 284, 289; 483 NW2d 452 (1992). The jury 

could have believed Cain’s defense that, despite this motive, Lee had a motive to silence the 

victims, but at the same time believed Lee’s defense that he was merely present in the 

neighborhood at the time of the crimes and played no part in them. The trial court did not abuse 

its discretion by denying the motion to sever. 

C. RODRIGUEZ 

 Cain’s next claims involve his former codefendant, Rodriguez, who was also charged 

with the murders, torture, and unlawful imprisonment of the victims, and had been scheduled to 

be tried jointly with defendants. After the Cain/Lee jury was empaneled, Rodriguez pleaded 

guilty to two counts of second-degree murder and agreed to testify truthfully on behalf of the 

prosecution. Before continuing with opening statements, however, the trial court questioned the 

Cain/Lee jury about Rodriguez’s role in the proceedings and all of the jurors agreed that they 

could keep an open mind and cautiously evaluate Rodriguez’s credibility. The trial court then 

denied defendants’ request to question the jurors and their motions for a mistrial. 

 Toward the end of trial, however, the prosecutor interviewed Rodriguez and informed the 

trial court that she suspected that he intended to perjure himself because his plea allocution 

differed from his interview statements regarding whether he knew the victims were in the trunk 
-12- 

and whether he saw Lee walking toward Eliza Howell Park with a victim. The prosecutor urged 

the trial court to treat Rodriguez as an unavailable witness, reasoning that she could not call a 

witness to testify who she knew intended to perjure himself. She noted, however, that the 

prosecution had not yet decided whether to withdraw Rodriguez’s plea because of his failure to 

fulfill the obligation to testify truthfully. 

 The trial court ruled that good cause had been shown to treat Rodriguez as an unavailable 

witness and denied defendants’ motions for a mistrial. R. Brown’s attorney also later noted on 

the record that, even though the prosecutor declined to call Rodriguez to testify, his client wanted 

to call him. But then Rodriguez asserted his Fifth Amendment privilege and the trial court ruled 

that no one could call Rodriguez as a witness. 

1. VOIR DIRE 

 First, Cain claims that the trial court abused its discretion in conducting voir dire about 

Rodriguez and by failing to allow defense counsel to question the jurors. We disagree. This 

Court reviews preserved challenges concerning voir dire for an abuse of discretion. MCR 

6.412(C)(1); People v Tyburski, 445 Mich 606, 619; 518 NW2d 441 (1994). 

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

Id. at 618. “The purpose of voir dire is to elicit enough information for development of a rational 

basis for excluding those who are not impartial from the jury.” Id. There are no “hard and fast 

rules” regarding what constitutes acceptable voir dire. People v Sawyer, 215 Mich App 183, 

186; 545 NW2d 6 (1996). “Rather, trial courts must be allowed wide discretion in the manner 

they employ to achieve the goal of an impartial jury.” Id. at 186-187 (quotation marks omitted). 

In reviewing the trial court’s conduct, the test is whether the trial court conducted a voir dire 

“sufficiently probing . . . to uncover potential juror bias.” Tyburski, 445 Mich at 609. “A 

defendant is entitled to relief from a verdict because of disallowance of voir dire only if he can 

prove that he was actually prejudiced by the presence of the juror in question or that the juror 

was properly excusable for cause.” People v Washington, 468 Mich 667, 675; 664 NW2d 203 

(2003). 

 In People v Mumford, 183 Mich App 149; 455 NW2d 51 (1990), the trial court excluded 

voir dire and cross-examination of the defendant’s codefendant regarding his plea of guilty and 

agreement to testify in exchange for a reduced sentence. The trial court reasoned that the 

defendants had faced the same charges and any questioning on the reduced sentence would 

violate the general rule that a jury should not be informed of a defendant’s possible punishment, 

if convicted. Id. at 151. On appeal, this Court concluded that strict adherence to the rule against 

informing jury of possible punishment would deprive the defendant of the right to cross-examine 

and present to the jury anything tending to affect the credibility of the witness, such as 

sentencing consideration received in return for testimony. Id. at 152-154. Likewise, this Court 

held that the trial court abused its discretion by restricting voir dire on the issue of the sentencing 

consideration because it prevented the development of a factual basis for the exercise of 

peremptory challenges. Id. at 154-155. 

 In this case, the record demonstrates that the trial court first asked each juror: 
-13- 

[I]f there were testimony that a person was accused of a crime, and accused of a 

crime that the defendants were alleged to be a part of . . . and that person decided 

that they wanted to plead guilty, and they wanted to testify, but in return for them 

being a witness against the defendants, that they got a reduced plea . . . Would 

you say: “I can’t believe anything that person said?” Or . . . would you have an 

open mind? 

Each juror responded that he or she would have an open mind. Next, the trial court promised to 

instruct the jury that it would have to be “very, very careful” and “to proceed very, very 

cautiously” when considering the testimony and credibility of a witness who is receiving a deal. 

The trial court then asked each juror if it could use such caution and each juror responded 

affirmatively. 

 Although Cain argues that the trial court’s questioning regarding Rodriguez’s plea was 

cursory and did not adequately probe for bias, he does not articulate on appeal what additional 

probing questions the trial court should have asked, and how different questions would have 

helped the parties to determine which potential jurors were impartial. See People Orlewicz, 293 

Mich App 96, 105; 809 NW2d 194 (2011), remanded on other grounds 493 Mich 916 (2012) 

(“[d]efendant fails to articulate what the trial court should have asked in addition to the questions 

it did ask, and the trial court appears from the record to have given the attorneys the opportunity 

to request questions to be asked”). The trial court’s questioning about whether the jury could 

keep an open mind about Rodriguez, but also carefully consider the credibility implications 

involved with his sentence agreement, is distinguishable from the dearth of questioning in 

Mumford. Moreover, Cain has not offered any evidence that he was actually prejudiced by the 

presence of any of the jurors or that a juror was properly excusable for cause. See Washington, 

468 Mich at 675. Therefore, Cain has not established that the trial court abused its discretion 

with the scope of its own questioning. 

 Cain also challenges the trial court’s decision to preclude defense counsel’s questioning. 

Again, the questions defense counsel would have asked are not a matter of record or addressed 

by Cain on appeal. It is well-settled that a defendant does not have the right to have his attorney 

conduct voir dire. See MCR 6.412(C)(2) (“[t]he court may conduct the examination of 

prospective jurors or permit the lawyers to do so”); Tyburski, 445 Mich at 619 (“[d]efendant does 

not have a right to have counsel conduct the voir dire”). But a trial court has discretion to 

“permit the lawyers to supplement the examination by direct questioning or by submitting 

questions for the court to ask.” Id. at 619 n 5, quoting MCR 6.412(C)(2). When the trial court 

precluded further questioning by defense counsel, it ruled that it had already “discussed this, 

thoroughly, with them.” It also promised an instruction would be drafted relating to Rodriguez 

and how to assess his credibility.6

 In light of the trial court’s discretion when conducting voir

dire and Cain’s failure to make a record of any additional questions that could have revealed bias 

 

6

 In his brief, Cain notes that the trial court did not actually give an instruction. CJI2d 5.6 

addresses accomplice testimony. Because Rodriguez did not ultimately testify, the instruction 

was not applicable when the trial court gave its closing instructions to the jury. 
-14- 

regarding Rodriguez, the trial court’s refusal to allow defense counsel to ask additional questions 

was not outside the range of principled outcomes. 

2. MISTRIAL 

 Next, Cain argues that the trial court should have granted a mistrial when Rodriguez 

agreed to testify—after the jury was empaneled—and later when the prosecutor refused to call 

him to testify. We disagree. This Court reviews a trial court’s ruling on a motion for a mistrial 

for an abuse of discretion. People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). 

 A trial court should exercise its power to grant a mistrial with great caution and only do 

so when there is “an irregularity that is prejudicial to the rights of the defendant and impairs his 

ability to get a fair trial.” Id. (citation and quotation marks omitted). Stated differently, a

mistrial is only appropriate where the error is so egregious that its prejudicial effect can be 

removed in no other way. People v Gonzales, 193 Mich App 263, 266; 483 NW2d 458 (1992). 

a. WHEN RODRIGUEZ PLEADED GUILTY 

 Cain argues that his jury was tainted by the surprise of Rodriguez’s plea and proposed 

testimony after it was empaneled. The record is clear that, when jury selection began and the 

jurors were empaneled, Rodriguez’s plea and proposed testimony was unexpected. But as 

discussed earlier, the parties were not precluded from observing the jurors’ potential biases on 

this subject because the trial court conducted voir dire about it before proceeding with trial. In 

light of the trial court’s ruling that this questioning removed any prejudicial effect of the surprise 

regarding Rodriguez’s plea and proposed testimony, the trial court did not abuse its discretion by 

denying Cain’s motion for a mistrial. See Gonzales, 193 Mich App at 266. 

b. WHEN THE THREAT OF RODRIGUEZ’S PERJURY AROSE 

 Cain claims that he was entitled to a mistrial because the prosecutor promised to produce 

Rodriguez during her opening statement and then decided not to call him to testify. If a 

prosecutor refers to evidence in his opening statement that is not substantiated, reversal is 

warranted only if the defendant was prejudiced or the prosecutor was acting in bad faith. People 

v Wolverton, 227 Mich App 72, 77; 574 NW2d 703 (1997). Some of the prosecutor’s argument 

about Rodriguez was cumulative. For example, even without Rodriguez’s testimony, other 

evidence established that Tristan Cash transported Rodriguez that night to various scenes of the 

crimes and that Rodriguez purchased shovels and gas for defendants, which the jury could infer 

were used to bury the victims and burn the car used to kidnap them. Other portions of the 

prosecutor’s argument were unsubstantiated, such as her claim that Rodriguez purchased duct 

tape to silence the victims and that Rodriguez saw a victim being forced into the park. These 

arguments did not prejudice Cain because the jury was presumed to follow the court’s 

instructions to only decide the case based on the evidence and that the attorneys’ statements were 

not evidence. See Abraham, 256 Mich App at 279. In addition, as discussed earlier, there was 

overwhelming evidence presented against Cain even though Rodriguez did not testify. 

Additionally, although Cain appears to argue that the prosecutor acted in bad faith by promising 

Rodriguez’s testimony, nothing in the record suggests that she knew that Rodriguez would fail to 

comply with his plea agreement to testify truthfully and threaten to perjure himself. See People 
-15- 

v Herndon, 246 Mich App 371, 418; 633 NW2d 376 (2001) (noting that “[p]rosecutors . . . have 

a constitutional obligation to report to the defendant and to the trial court whenever government 

witnesses lie under oath” and that “Michigan courts have also recognized that the prosecutor may 

not knowingly use false testimony to obtain a conviction, and that a prosecutor has a duty to 

correct false evidence”). The trial court therefore did not abuse its discretion by failing to grant a 

mistrial when the prosecutor refused to call Rodriguez to testify. 

 Cain also makes several additional arguments related to Rodriguez’s failure to testify. 

First, Cain argues that Rodriguez was not a res gestae witness and therefore the prosecutor had a 

duty to make him available for defendants to call him to testify. But a res gestae witness is 

“ ‘one who is present at the scene of the alleged crime, at the time of the alleged crime, or one 

who had occasion to observe the surrounding events and circumstances.’ ” People v Steanhouse, 

___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318329); slip op at 7, quoting People v 

Dyer, 425 Mich 572, 577 n 4; 390 NW2d 645 (1986). According to his own allocution, 

Rodriguez was present during the crimes and was therefore a res gestae witness. Therefore, 

Cain’s citation to People v Lummis, 260 Mich 170; 244 NW 438 (1932), for the proposition that 

an indorsed witness, who is not a res gestae witness, must be in court but need not be called by 

the prosecution, is inapposite. 

 Next, Cain seems to argue, with no citation to authority, that the prosecutor should have 

assisted him in producing Rodriguez as his witness because Rodriguez could not assert the Fifth 

Amendment privilege. As the prosecutor argues, Cain did not object to Rodriguez’s assertion of 

this privilege at trial. Therefore, his argument is unpreserved and reviewed for plain error 

affecting substantial rights. See People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 

(1999). Moreover, 

[t]he Fifth Amendment to the United States Constitution and Article 1, § 17 of the 

Michigan Constitution provide that “[n]o person shall be compelled in any 

criminal case to be a witness against himself.” “This prohibition ‘not only 

permits a person to refuse to testify against himself at a criminal trial in which he 

is a defendant, but also ‘privileges him not to answer official questions put to him 

in any other proceeding, civil or criminal, formal or informal, where the answers 

might incriminate him in future criminal proceedings.’ ” [Steanhouse, ___ Mich 

App at ___; slip op at 8.] 

Contrary to Cain’s claim, it was not inconceivable that testifying at this trial could incriminate 

Rodriguez in future criminal proceedings. If Rodriguez testified as the prosecutor anticipated—

that he did not know the victims were in the trunk or see Lee walking toward Eliza Howell Park 

with a victim—he could be prosecuted for perjury because the anticipated testimony differed 

from his allocution. See MRE 410 (a statement made in the course of plea proceedings is 

admissible “in a criminal proceeding for perjury or false statement if the statement was made by 

the defendant under oath, on the record and in the presence of counsel”). Therefore, after 

Rodriguez asserted the Fifth Amendment privilege, the trial court did not commit plain error by 

concluding that defendants could not call Rodriguez to testify, and contrary to Cain’s claim, the 

prosecutor did not fail to assist him in producing Rodriguez. 
-16- 

D. JUDICIAL QUESTIONING 

 Next, Cain argues that he was prejudiced by the trial court’s questioning of certain 

witnesses, which he claims demonstrated bias for the prosecution. We disagree. 

 Cain did not object to the trial court’s questioning. Therefore, Cain’s unpreserved 

arguments regarding the trial court’s questioning are reviewed only to ascertain whether any 

plain error affected his substantial rights. See Carines, 460 Mich at 763-764; People v Davis, 

216 Mich App 47, 51; 549 NW2d 1 (1996). 

 MRE 614(b) provides that a “court may interrogate witnesses, whether called by itself or 

by a party.” Under this rule, “[t]he trial court may question witnesses in order to clarify 

testimony or elicit relevant information.” People v Conyers, 194 Mich App 395, 404; 487 NW2d 

787 (1992). The “trial court should conduct a trial with a view to eliciting the truth and to 

attaining justice between the parties.” Davis, 216 Mich App at 49 (internal quotation and 

citation omitted). A trial judge possesses 

good reason to interject itself into the trial . . . when a witness is difficult or is not 

credible and the attorney fails to adequately probe the witness, . . . if a witness 

becomes confused,” or the “attorneys for both sides avoid asking a witness a 

material question . . . In these and other appropriate instances, the trial court may 

have good reason to question a witness in order to enhance the role of the criminal 

trial as a search for substantive truth. [Id. at 49-50.] 

A trial judge does not deprive a defendant of a fair trial by asking “questions posed in a neutral 

manner.” Id. at 50. 

 “The principal limitation on a court’s discretion over matters of trial conduct is that its 

actions not pierce the veil of judicial impartiality.” Id. In Conyers, 194 Mich App at 405, this 

Court summarized the following relevant cautionary principles governing judicial questioning of 

witnesses: 

[T]he trial court must exercise caution and restraint to ensure that its questions are 

not intimidating, argumentative, prejudicial, unfair, or partial. The test is whether 

the judge’s questions and comments may well have unjustifiably aroused 

suspicion in the mind of the jury as to a witness’[s] credibility, and whether 

partiality quite possibly could have influenced the jury to the detriment of 

defendant’s case. [Internal quotations, citations and emphasis omitted.] 

“A trial court may not assume the prosecutor’s role with advantages unavailable to the 

prosecution,” but “the fact that testimony elicited by a court’s questions damaged a defendant’s 

case did not demonstrate that the court had improperly assumed the role of surrogate 

prosecutor.” Davis, 216 Mich App at 51 (internal quotation and citation omitted).

 This was a long and complicated trial, which was conducted over a period of many weeks 

and involved many parties and pieces of evidence. The trial court’s questioning of Chapman 

elicited testimony, which he had previously struggled to explain clearly. Likewise, the trial court 

questioned evidence technician, Mary Gross, about details of her evidentiary findings that the 
-17- 

parties had failed to adequately probe. As even Cain notes, on one occasion the trial court began 

to interject about the location of a shell casing and duct tape where the victims were buried, but 

when the prosecutor promised to continue that line of questioning, the trial court exercised 

restraint and allowed the prosecutor to fulfill her role. Cain only argues that some of the 

evidence elicited by the judge could have led to an inference of guilt. But the same evidence 

also could have created reasonable doubt.7 Regardless, the trial court instructed the jury only to 

decide the case based on the evidence and, “My comments, rulings, questions and instructions 

are . . . not evidence.” Because the jury was presumed to follow its instructions, Cain cannot 

establish a plain error affecting his substantial rights from the trial court’s questioning. See 

Abraham, 256 Mich App at 279.8

III. DOCKET NO. 314712 – R. BROWN’S APPEAL 

A. RODRIGUEZ 

 Like Cain, R. Brown also argues that the trial court should have granted a mistrial 

because the prosecutor promised to produce Rodriguez during her opening statement and then 

decided not to call him to testify. R. Brown does not argue that the prosecutor acted in bad faith, 

but rather that he was nevertheless prejudiced by her unsubstantiated argument. We disagree. 

Again, this Court reviews a trial court’s ruling on a motion for a mistrial for an abuse of 

discretion. Schaw, 288 Mich App at 236. 

 Any prejudice from the prosecutor’s unsubstantiated argument was not so egregious that 

its effect could not be removed in another way. See Gonzales, 193 Mich App at 266. Again, the 

jury is presumed to have followed the instructions that the case could only be decided based on 

the evidence and that the attorneys’ statements were not evidence. Abraham, 256 Mich App at 

279. Moreover, in light of the overwhelming evidence against R. Brown, any additional 

promises that Rodriguez would further implicate him were not outcome determinative. The text 

messages between R. Brown and J. Brown establish their plan of “hittin’ that lick,” which 

required a gun and a car. The very next day, R. Brown’s cell phone placed him in the 

Hamtramck neighborhood at the time of the kidnapping and shooting at Chapman’s home. From 

R. Brown’s subsequent statement that he “almost got [his] f**kin’ head blown off,” the jury 

could infer that he was involved in the crossfire between Cain and Chapman. After the 

kidnapping, the victims reported that they were inside a silver Chrysler Sebring and R. Brown 

was seen driving a green or gray Chrysler Sebring that night. In addition, cellular phone tower 

 

7

 For example, Cain argues that the trial court’s elicitation of evidence that Chapman was never 

formally introduced to Cain made Cain look “shifty, antisocial, and suspect,” but the jury could 

have just as easily inferred that, absent an introduction, Chapman did not know Cain well enough 

to recognize him as the shooter during the kidnapping. 

8

 Although Cain references the sentencing transcript from the trial involving the February 8 

shooting to demonstrate the trial court’s bias, any statements the trial court made in that 

proceeding are not part of the instant record and will not be considered on appeal. See Reeves v 

K-Mart Corp, 229 Mich App 466, 481 n 7; 582 NW2d 841 (1998). 
-18- 

usage immediately after the kidnapping showed R. Brown’s phone was moving in the same 

direction as the victims’ phones. The victims were shot and buried in Eliza Howell Park and the 

jury could infer that R. Brown shot them and dug their graves because he arrived at Raymon’s 

nearby house later, covered in mud, with a gun he needed to clean and bullets he wanted to 

dispose of. He also carried one of the victim’s purses. When Rodriguez joined him at Raymon’s 

house, R. Brown requested a gas can filled with gas. The silver Chrysler Sebring was parked on 

Bramell Street at the time. Just after R. Brown left the home, emergency vehicles responded to 

Bramell Street to control a fire involving a silver Chrysler; a gas can sat nearby. In the aftermath 

of the kidnapping and murders, R. Brown texted demands to be paid to Rodriguez, inquired what 

Richbow saw and what should be done to her, and threatened to kill Cash for being a “snitch.” 

Given these facts linking R. Brown to the crimes, any mention of Rodriguez’s proposed 

testimony about his involvement in the crimes did not affect R. Brown’s right to a fair trial. 

 R. Brown also argues on appeal that reversal is required because the prosecutor withheld 

potentially exculpatory information revealed during Rodriguez’s interview. We disagree. 

 Due process demands that a criminal defendant have “a meaningful opportunity to 

present a complete defense,” which includes a defendant’s receipt of exculpatory evidence. 

People v Anstey, 476 Mich 436, 460; 719 NW2d 579 (2006). A prosecutor must disclose 

exculpatory and material evidence in his or her possession, regardless of whether the defendant 

has asked for the disclosure. People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 

(2007). R. Brown cites Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963), 

under which a defendant must prove: 

(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 (2014).] 

In addition, when evidence is lost or not preserved and the exculpatory value of the evidence is 

indeterminate and only potentially useful, a defendant must show that the government acted in 

bad faith in failing to preserve the evidence. Arizona v Youngblood, 488 US 51, 57-58; 109 S Ct 

333; 102 L Ed 2d 281 (1988); People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 

(1992). 

 In this case, after the prosecutor interviewed Rodriguez and declined to call him to testify 

because she anticipated that he would perjure himself, Rodriguez asserted his Fifth Amendment 

right to silence and the trial court ruled that he could not be called as a witness at trial. 

Therefore, even assuming that the prosecutor possessed and suppressed evidence favorable to 

defendants, the outcome of the trial would not have been different because Rodriguez’s 

testimony could not have been presented. See Chenault, 495 Mich at 156. Therefore, any 

alleged suppression of evidence would not require reversal. 

B. CELL PHONE RECORDS 

 Like J. Brown and Cain, R. Brown also argues that the trial court abused its discretion 

when admitting the cell phone records associated with him, arguing that the records were not 

sufficiently authenticated. We disagree. 
-19- 

 Again, to admit evidence, a proper foundation must be established. The “articles [must] 

be identified as that which they purport to be and that the articles are shown to be connected with 

the crime or with the accused.” Furman, 158 Mich App at 331; MRE 901(a). 

 When he was interviewed by the police, R. Brown told Officer Alejandro Parra that his 

phone number was ***-***-8929. As R. Brown argues, there is no evidence in the record from 

an eyewitness identifying him as the user of that phone number at the time of the charged crimes. 

But Jaehnig’s testimony regarding the towers utilized by ***-***-8929 around that time allowed 

the jury to infer that it was R. Brown making and receiving calls and texts. Most importantly, 

***-***-8929 was utilized in the Eliza Howell Park area when Richbow confirmed that R. 

Brown was with her in that same area. That the tower usage showed that the phone returned to 

R. Brown’s neighborhood on Beresford—after R. Brown’s visit to Richbow and the car fire—

also allowed the jury to infer that it was R. Brown making and receiving calls and texts. 

 Again, the foundation need not have identified R. Brown as the user with absolute 

certainty. That R. Brown offered evidence that his friends did not know he could be reached at 

***-***-8929,9

 and that the subscription was taken in California,10 was evidence the jury could 

consider when assessing the weight to be given to the phone records, not their admissibility. 

Therefore, the trial court did not abuse its discretion by concluding that the prosecutor introduced 

evidence to establish a proper foundation for the admission of cellular phone records for ***-

***-8929. 

IV. DOCKET NO. 316110 – LEE’S APPEAL 

A. SUFFICIENCY OF THE EVIDENCE 

 Lee argues that he was merely present during the crimes and the prosecutor failed to 

establish his convictions of second-degree murder beyond a reasonable doubt. We disagree. 

 “The elements of second-degree murder are: (1) a death, (2) caused by an act of the 

defendant, (3) with malice, and (4) without justification or excuse.” People v Goecke, 457 Mich 

442, 463-464; 579 NW2d 868 (1998). Lee only challenges the second element that he played 

any role in causing the victims’ deaths. 

 The prosecutor offered evidence at trial that, on February 8, 2012, Cain ordered Lee to 

shoot at the victims as they fled in Brown’s car. The jury could therefore infer that, in addition 

to Cain, Lee had a motive to silence the victims. See Unger, 278 Mich App at 223-224 

(evidence of motive and opportunity are logically relevant in a prosecution for murder). But 

contrary to Lee’s claims, his motive was not the only fact connecting him to the murders. The 

record demonstrated that Cain gave Douglas money for safe-keeping, and both Cain and Lee 

went together to retrieve that money from Douglas on the night of the kidnapping; the jury could 

 

9

 Their phone records nevertheless showed calls to ***-***-8929.

10 Jaehnig testified that Irvine California is the location used on an account when a subscriber 

refuses to provide an address. 
-20- 

infer that the money was to pay their accomplices. In addition, Cash observed a man with braids 

with Cain, R. Brown, and Rodriguez by the trunk of the Chrysler Sebring (both open and shut) 

after the kidnapping. The jury could infer that the man with braids with this group was Lee, 

because Lee had braids at the time and he was identified shortly afterward by Douglas with the 

same group of three men and cars at Douglas’s father’s house. In addition, cell phone records 

demonstrated that Conaway, R. Brown, and Lee used their phones about a half hour after the 

kidnapping in the same geographical location. Again, the victims were subsequently buried in 

Eliza Howell Park. Cell phone records demonstrated that Lee was in this area for about two 

hours after the kidnapping. Rodriguez delivered shovels there to the same group of men. 

Moreover, the jury could infer that Lee assisted with the burial and was not merely present in the 

area because, like R. Brown who was covered in mud, Lee’s socks were dirty afterward. 

Furthermore, Lee exhibited consciousness of guilt when he and Cain went to Glenn’s house after 

the burial and he nervously looked out the window. See People v Kowalski, 489 Mich 488, 509 

n 37; 803 NW2d 200 (2011) (“attempts to conceal involvement in a crime are probative of a 

defendant’s consciousness of guilt”). 

 Lee attempts to chip away at the evidence supporting his convictions by arguing that 

there was no physical evidence, such as fingerprints or DNA, connecting him to the crimes and 

claiming that the identification of him as the February 8 shooter was uncertain. But these 

questions of fact were within the exclusive province of the jury and will not be second-guessed 

on appeal. See Gadomski, 232 Mich App at 28. 

 Last, Lee also claims that the jury’s verdict finding him guilty of second-degree murder 

was inconsistent with the trial court’s dismissal of the unlawful imprisonment charge and the 

jury’s verdict finding him not guilty of torture. Similarly, Lee questions the jury’s conclusion 

that Cain was guilty of first-degree murder while merely finding him guilty of second-degree 

murder. But a jury may render inconsistent verdicts. People v Wilson, 496 Mich 91, 100-101; 

852 NW2d 134 (2014); People v Vaughn, 409 Mich 463, 464; 295 NW2d 354 (1980). Because 

there was sufficient evidence to support the jury’s conclusion that the victims’ deaths were 

caused by Lee, any alleged inconsistency regarding the verdicts does not require reversal. 

B. RODRIGUEZ 

 Just like Cain and R. Brown, Lee argues that the trial court should have granted a mistrial 

because the prosecutor promised to produce Rodriguez during her opening statement and then 

decided not to call him to testify. Lee does not argue that the prosecutor acted in bad faith, but 

rather that he was nevertheless prejudiced by her unsubstantiated argument.11 We disagree. 

Again, this Court reviews a trial court’s ruling on a motion for a mistrial for an abuse of 

discretion. Schaw, 288 Mich App at 236. 

 

11 Citing Baker v State, 906 A2d 139, 148 (Del, 2006) (“[i]f the Court determine[s] that no 

misconduct occurred, [the] analysis should end there”), the prosecutor argues that error requiring 

reversal should only occur when the prosecutor acted in bad faith. But this Court is not bound by 

decisions in other states and the holding in Wolverton—that either prejudice or the prosecutor’s 

bad faith can require reversal—remains good law. Wolverton, 227 Mich App at 77. 
-21- 

 Lee cites Wolverton, 227 Mich App at 75-78, where this Court vacated the defendant’s 

conviction for operating a vehicle under the influence of intoxicating liquor (requiring a blood 

alcohol level of .10 or higher) based on the prosecutor’s reference in the opening statement to the 

incriminating results of a blood alcohol test (showing a BAC of .19 and .20), which were 

ultimately held inadmissible. The prosecutor apparently made the reference in good faith. And 

the remaining evidence merely demonstrated a credibility contest between the arresting officer 

and the defendant and his witnesses. The arresting officer testified that he observed the 

defendant drive erratically, exit his car, stumble to a barn where he pretended to work, smell of 

intoxicants, slur his speech, and fail a field sobriety test. Id. at 73. On the other hand, the 

defendant denied drinking, which was supported by several coworkers and family members who 

had been with him. The witnesses also testified that the defendant worked with a strongsmelling glue, which was on his clothing on the day of the arrest. In addition, the booking 

officer testified that the defendant was agitated, but the booking sheet stated that he did not 

appear to be under the influence of drugs or alcohol. The defendant claimed that he ran into the 

barn and pretended to be working because he was driving with a suspended license, and he 

testified that the arresting officer did not conduct field sobriety tests. Id. at 74. This Court ruled 

on appeal that, given the credibility contest, the “damning, and subsequently unproved, 

allegation that [the] defendant’s blood alcohol content was twice the legal limit, was so 

prejudicial as to require the declaration of a mistrial in order to assure [the] defendant a fair 

trial.” Id. at 77. 

 Any prejudice from the prosecutor’s unsubstantiated argument was not so egregious that 

its effect could not be removed in another way. See Gonzales, 193 Mich App at 266. In his 

attempt to show prejudice, Lee’s argument is somewhat misleading. Lee quotes a substantial 

portion of the prosecutor’s opening statement, in which she asserted that she would produce 

evidence (1) that Lee was with Cain, R. Brown, and Rodriguez on the night of the crimes, (2) 

that someone, who she did not name, forced one of the victims at gunpoint into the park, and (3) 

allowing the jury to infer Lee’s active participation in the crimes, including his motive to silence 

the victims and circumstantial evidence, such as his dirty socks. In his brief, Lee then recounts a 

fact from Rodriguez’s allocution, which was never presented or argued to the Cain/Lee jury, that 

Lee was the person forcing the victims into the park. Lee claims that this fact from the 

allocution, making an eyewitness link to his participation, is comparable to the prejudicial BAC 

levels in Wolverton. But, again, the prosecutor did not make this specific eyewitness link to 

Lee’s participation. As discussed earlier, many of the facts promised in the prosecutor’s 

argument were established without Rodriguez’s testimony at trial. In addition, as discussed 

repeatedly throughout this opinion, the jury is presumed to have followed the instructions that 

the case could only be decided based on the evidence and that the attorneys’ statements were not 

evidence. Abraham, 256 Mich App at 279. Because Lee has failed to establish that any 

prejudice from the prosecutor’s unsubstantiated argument was so egregious that its effect could 

not be removed in another way, it was not outside the range of principled outcomes to deny 

Lee’s motion for a mistrial. See Gonzales, 193 Mich App at 266. 

C. SENTENCING DEPARTURE 

 Lee next argues that the trial court erred by departing from the sentencing guidelines 

range of 270 to 450 months for the second-degree murder convictions, arguing that the trial court 

failed to identify substantial and compelling reasons to justify a departure, or the extent of the 
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departure. In People v Lockridge, 498 Mich 358, 364-365; 870 NW2d 502 (2015), our Supreme 

Court recently held that a trial court is no longer required to provide a substantial and compelling 

reason for a departure from the sentencing guidelines. Thus, review of defendant’s specific 

arguments concerning whether the reasons articulated by the trial court were substantial and 

compelling is unnecessary. Instead, under Lockridge, an appellate court must review a departure 

sentence for reasonableness. Id. at 392. 

 In Steanhouse, ___Mich App at ___; slip op at 23-25, this Court adopted the prestatutory-sentencing-guidelines principle of proportionality test in People v Milbourn, 435 Mich 

630; 461 NW2d 1 (1990), to define reasonableness, explaining: 

Under the new test, “a given sentence [could] be said to constitute an abuse of 

discretion if that sentence violate[d] the principle of proportionality, which 

require[d] sentences imposed by the trial court to be proportionate to the 

seriousness of the circumstances surrounding the offense and the offender.” Id. at 

636. As such, trial courts were required to impose a sentence that took “into 

account the nature of the offense and the background of the offender.” [Milbourn, 

435 Mich] at 651. 

 With regard to the judicial sentencing guidelines, the [Milbourn] Court 

stated: 

 The guidelines represent the actual sentencing practices of 

the judiciary, and we believe that the second edition of the 

sentencing guidelines is the best “barometer” of where on the 

continuum from the least to the most threatening circumstances a 

given case falls. 

. . . We note that departures [from the guidelines] are appropriate 

where the guidelines do not adequately account for important 

factors legitimately considered at sentencing . . . . To require strict 

adherence to the guidelines would effectively prevent their 

evolution, and, for this reason, trial judges may continue to depart 

from the guidelines when, in their judgment, the recommended 

range under the guidelines is disproportionate, in either direction, 

to the seriousness of the crime. [Id. at 656-657.] 

 The Court also provided the following guidance for appellate courts 

reviewing a departure from the guidelines: 

 Where there is a departure from the sentencing guidelines, 

an appellate court’s first inquiry should be whether the case 

involves circumstances that are not adequately embodied within 

the variables used to score the guidelines. A departure from the 

recommended range in the absence of factors not adequately 

reflected in the guidelines should alert the appellate court to the 

possibility that the trial court has violated the principle of 
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proportionality and thus abused its sentencing discretion. Even 

where some departure appears to be appropriate, the extent of the 

departure (rather than the fact of the departure itself) may embody 

a violation of the principle of proportionality. [Id. at 659-660.] 

 Factors previously considered by Michigan courts under the 

proportionality standard included, among others, (1) the seriousness of the 

offense, People v Houston, 448 Mich 312, 321; 532 NW2d 508 (1995); (2) factors 

not considered by the guidelines, such as the relationship between the victim and 

the aggressor, id. at 323; Milbourn, 435 Mich at 660, the defendant’s misconduct 

while in custody, Houston, 448 Mich at 323, the defendant’s expressions of 

remorse, id., and the defendant's potential for rehabilitation, id.; and (3) factors 

that were inadequately considered by the guidelines in a particular case, id. at 324. 

 In Steanhouse, this Court also provided procedural instructions for this circumstance, 

where a defendant was sentenced before our Supreme Court’s decision in Lockridge and the trial 

court departed from the guidelines, relying on the previous substantial and compelling standard. 

This Court stated: 

 Given that Lockridge overturned the substantial and compelling reason 

standard . . . which was in place at the time of defendant’s sentencing, and given 

our conclusion that the principle of proportionality established under Milbourn 

and its progeny is now the appropriate standard by which a defendant’s sentence 

should be reviewed, we also find that the procedure articulated in Lockridge, and 

modeled on that adopted in United States v Crosby, 397 F3d 103 (CA 2, 2005), 

should apply here. As recently stated by this Court in People v Stokes, ___ Mich 

App ___, ___; ___NW2d ___ (2015); slip op at 11, “the purpose of a Crosby 

remand is to determine what effect Lockridge would have on the defendant’s 

sentence, so that it may be determined whether any prejudice resulted from the 

error.” While the Lockridge Court did not explicitly hold that the Crosby 

procedure applies under the circumstances of this case, we conclude this is the 

proper remedy where, as here, the trial court was unaware of and not expressly 

bound by a reasonableness standard rooted in the Milbourn principle of 

proportionality at the time of sentencing. 

 Under the Crosby procedure, which “offers a measure of protection to a 

defendant[,]” “a defendant is provided with an opportunity ‘to avoid resentencing 

by promptly notifying the trial judge that resentencing will not be sought.’ ” 

Given the possibility that defendant could receive a more severe sentence, 

defendant should be provided the opportunity to avoid resentencing if that is his 

desire. Accordingly, we remand the matter to the trial court to follow the Crosby 

procedure outlined in Lockridge. Defendant “may elect to forego resentencing by 

providing the trial court with prompt notice of his intention to do so. If 

‘notification is not received in a timely manner,’ the trial court shall continue with 

the Crosby remand procedure as explained in Lockridge.” [Steanhouse, ___ Mich 

App at ___; slip op at 25 (citations omitted).] 
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Thus, in accordance with Lockridge and Steanhouse, we remand this case to the trial court for a 

Crosby hearing, including “permitting the sentencing judge to determine whether to resentence, 

now fully informed of the new sentencing regime, and if so, to resentence.” Lockridge, 498 

Mich at 396. 

D. JURY’S OATH 

 In a supplemental brief, Lee argues that structural error occurred when the trial court 

clerk read the incorrect oath to the Cain/Lee jury. We disagree. This issue is unpreserved 

because Lee did not object to the trial court’s swearing of the jury at trial. Because this issue is 

unpreserved, review is for plain error affecting substantial rights. Carines, 460 Mich at 763. 

Even if a defendant succeeds in establishing a plain error that affects substantial rights, an 

appellate court must still exercise discretion in deciding whether to reverse, and “relief is 

warranted only when the court determines that the plain, forfeited error resulted in the conviction 

of an actually innocent defendant or ‘seriously affect[ed] the fairness, integrity or public 

reputation of [the] judicial proceedings.’ ” People v Cain, 498 Mich 108, 116; 869 NW2d 829 

(2015) (internal quotations and citation omitted). 

 Codefendant Cain, who shared the same jury with Lee, previously raised this issue in a 

motion for peremptory reversal. This Court granted the motion, People v Cain, unpublished 

order of the Court of Appeals, issued May 2, 2014 (Docket No. 314342), and the prosecutor 

appealed that decision. The Michigan Supreme Court thereafter vacated this Court’s order, 

reinstated Cain’s convictions and sentences, and remanded the case to this Court for 

consideration of Cain’s remaining claims on appeal. Cain, 498 Mich at 112. The Supreme 

Court observed that Cain “does not even argue that he is actually innocent,” id. at 119, and 

concluded that because the jurors were conscious of the gravity of the task before them and the 

manner in which that task was to be carried out, the two primary purposes served by the juror’s 

oath, the error of failing to properly swear the jury in this case did not seriously affect the 

fairness, integrity, or public reputation of the judicial proceedings. Id. at 126-128. Therefore, 

reversal was not warranted. Id. at 128. 

 Lee similarly does not argue that he is actually innocent. Further, because Lee and Cain 

shared the same jury, the Supreme Court’s conclusion in Cain that the error of failing to properly 

swear the jury did not seriously affect the fairness, integrity, or public reputation of the judicial 

proceedings, applies equally to Lee. Therefore, reversal is not warranted. 

V. DOUBLE JEOPARDY 

 J. Brown, R. Brown, and Lee argue that their right against double jeopardy was violated 

because they were convicted of four counts of murder for the deaths of just two victims. We 

agree. 

 The Double Jeopardy Clause protects against multiple punishments for the same offense, 

US Const, Am V; Const 1963, art 1, § 15. Matuszak, 263 Mich App at 49. In Orlewicz, 293 

Mich App at 112, this Court explained: 

[C]onvicting a defendant of both first-degree premeditated murder and firstdegree felony murder arising out of the death of a single victim is a violation of 
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double-jeopardy protection. People v Williams, 265 Mich App 68, 72; 692 NW2d 

722 (2005). We will uphold a single conviction for murder based on two 

alternative theories. Id. Accordingly, the proper remedy when a defendant is 

convicted of both first-degree premeditated murder and first-degree felony murder 

arising out of the death of a single victim is to modify the conviction to specify 

that it is for a single count of first-degree murder supported by two theories. 

J. Brown and R. Brown were each convicted and sentenced for two counts of both first-degree 

premeditated murder and first-degree felony murder, arising out of the deaths of both Conaway 

and Brown, totaling four separate convictions and sentences. Therefore, remand is necessary to 

correct their judgments of sentence to show a single conviction of first-degree murder for both 

Conaway and Brown, each supported by two different theories. Cain was similarly sentenced for 

four first-degree murder convictions and, although he does not raise the same claim on appeal, in 

the interest of consistency and equal justice, we remand his case with the same instruction for the 

trial court. See MCR 7.216(A)(7). 

 Lee’s convictions are distinct because, although he was charged with first-degree 

premeditated murder and first-degree felony murder for each victim, the jury convicted him of 

the lesser crime of second-degree murder for each count. In any event, because these 

convictions also resulted in two convictions and sentences for the death of each victim, we 

likewise remand Lee’s case for correction of his judgment of sentence showing a single 

conviction of second-degree murder for both Conaway and Brown. 

 We remand for correction of the judgments of sentence to vacate defendants’ duplicative 

murder convictions and sentences, and remand for a Crosby hearing regarding Lee’s departure 

sentences in accordance with this opinion, but defendants’ convictions and sentences in all other 

respects are affirmed. We do not retain jurisdiction. 

/s/ Michael J. Talbot 

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly