-1-

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

April 19, 2018

v No. 335366

Alpena Circuit Court

CHRISTOPHER ANDREW TANK, LC No. 15-006912-FC

Defendant-Appellant.

Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of first-degree premeditated murder, 

MCL 750.316(1)(a), discharge of a firearm from a vehicle, MCL 750.234a, carrying a concealed 

weapon (CCW), MCL 750.227, and possession of a firearm during the commission of a felony 

(felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment 

without parole for the murder conviction, life imprisonment for the discharge of a firearm 

conviction, and two to five years’ imprisonment for the CCW conviction, those sentences to be 

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

conviction. We affirm.

The jury convicted defendant of murdering Robert Arch outside Arch’s home on May 13, 

2015. Defendant and the victim were formerly friends, but their relationship had become 

strained. The victim’s girlfriend, Stacy Phillips, had known defendant since junior high school,

and she briefly dated defendant’s brother. The victim had fathered a son with defendant’s sister, 

and the victim had recently obtained a favorable ruling in a custody dispute with defendant’s 

sister. 

On May 13, defendant confronted the victim outside the victim’s home. The victim told 

defendant that he was not welcome and asked him to leave. As the victim approached

defendant’s vehicle, defendant sped off in his car, a small, green foreign vehicle. Approximately 

20 to 30 minutes later, the victim looked outside his kitchen window and told Phillips that 

defendant had returned. The victim went outside and then Phillips heard a noise that sounded 

like fireworks. Phillips testified that she went outside the front door and saw defendant shoot the 

victim. According to Phillips, defendant, who was seated in the driver’s seat, reached across the 

passenger side of the vehicle, and fired a gun through the open passenger window. Defendant 
-2-

was the only person inside the vehicle. After the victim was shot, he turned around and told 

Phillips: “Call the cops. Tell them it was Chris Tank.” Defendant then sped away in his vehicle. 

A 10-year-old witness testified that she saw a man in a green car pull up to the victim’s 

home and shoot another man multiple times before driving away. She said there was only one 

person inside the car. Another witness, however, testified that there were two men in the car and 

it was the passenger who fired the gun. 

A responding paramedic testified that while treating the victim at the scene, he asked the 

victim “Who did this?” and the victim replied, “Tank.” Later that day, the police stopped 

defendant’s vehicle, a green Subaru Legacy, on M-65 as it was headed out of town. The police 

discovered a .45 Colt pistol with an empty magazine inside the glove box of defendant’s car. A 

spent shell casing was discovered behind the driver’s seat. A backpack containing clothing and a 

loaded handgun magazine was lying on the front passenger seat. Additional pieces of luggage 

were in the back seat. A firearm’s expert later matched two shell casings and a bullet fragment 

found at the scene to defendant’s gun. An officer also observed an apparent bullet hole through 

the passenger side-view mirror of defendant’s car. John Lucey, a forensic scientist with the 

Michigan State Police crime lab, was qualified as an expert in the field of fracture match 

principles. Lucey testified that pieces of black plastic recovered at the scene could be matched to 

the damaged housing unit of the side-view mirror of defendant’s vehicle. The defense theory at 

trial was that a second person in defendant’s vehicle shot the victim. 

I. DYING DECLARATION

Defendant first argues that his constitutional right of confrontation was violated by the 

admission of the paramedic’s testimony that, in response to the paramedic’s inquiry, the victim 

said he was shot by “Tank.” Defendant acknowledges that this constitutional issue was not 

raised below. Therefore, the issue is unpreserved and review is limited to plain error affecting 

defendant’s substantial rights. People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011). 

Defendant further argues, however, that defense counsel was ineffective for failing to raise an 

objection based on the Confrontation Clause. To establish ineffective assistance of counsel, 

defendant must show that: (1) counsel’s representation “fell below an objective standard of 

reasonableness”; and (2) but for counsel’s deficient performance, there is a reasonable 

probability that the outcome of the proceeding would have been different. People v Vaughn, 491 

Mich 642, 670; 821 NW2d 288 (2012). 

Defendant acknowledges that the victim’s statement to the paramedic qualifies as a 

“dying declaration” under MRE 804(b)(2). He argues, however, that the statement qualifies as 

“testimonial,” and therefore, its admission violated his Sixth Amendment right of confrontation. 

US Const, Am VI; Const 1963, art 1, § 20. We disagree, because “dying declarations are 

admissible as an historical exception to the Confrontation Clause.” People v Taylor, 275 Mich 

App 177, 183; 737 NW2d 790 (2007). 

Defendant cites Michigan v Bryant, 562 US 344; 131 S Ct 1143; 179 L Ed 2d 93 (2011), 

in support of his argument that dying declarations are not admissible unless they are 

nontestimonial. In that case, however, the Supreme Court acknowledged the historical-exception 

thesis proposed in Crawford v Washington, 541 US 36, 56 n 6; 124 S Ct 1354, 1364; 158 L Ed 
-3-

2d 177 (2004), but noted that the state had failed to preserve its argument with regard to dying 

declarations, and therefore, it expressly declined to “decide that question here.” Bryant, 562 US 

at 351 n 1. Thus, Bryant does not repudiate this Court’s holding in Taylor that dying 

declarations are admissible as an historical exception to the Confrontation Clause. Accordingly, 

there was no plain error in admitting the victim’s dying declaration identifying defendant as his 

assailant. Further, because the statement was admissible without violating the Confrontation 

Clause, defense counsel was not ineffective for failing to object on that ground. Counsel is not 

ineffective for failing to raise a meritless objection. People v Collins, 298 Mich App 458, 470; 

828 NW2d 392 (2012). 

II. EXPERT TESTIMONY

Defendant next argues that the trial court erred when it permitted the prosecution’s 

witness, Lucey, to offer expert testimony regarding “fracture match” principles to show that 

pieces of plastic found at the scene matched defendant’s broken passenger side-view mirror. 

“[T]he determination regarding the qualification of an expert and the admissibility of expert 

testimony is within the trial court's discretion.” People v Murray, 234 Mich App 46, 52; 593 

NW2d 690 (1999).

MRE 702, which governs the admissibility of expert testimony, provides:

If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion or otherwise if 

(1) the testimony is based on sufficient facts or data, (2) the testimony is the 

product of reliable principles and methods, and (3) the witness has applied the 

principles and methods reliably to the facts of the case.

MRE 702 requires “a court evaluating proposed expert testimony [to] ensure that the testimony 

(1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified 

in the relevant field of knowledge, and (3) is based on reliable data, principles, and 

methodologies that are applied reliably to the facts of the case.” People v Kowalski, 492 Mich 

106, 120; 821 NW2d 14 (2012). All three of these requirements must be met to permit the use of 

the testimony. Id. at 120-121. However, the reliability inquiry is a flexible one and must be tied 

to the facts of the particular case; thus, factors for determining reliability may differ depending 

on the type of expert testimony offered, as well as the facts of the case. Kumho Tire Co v 

Carmichael, 526 US 137, 150; 119 S Ct 1167; 143 L Ed 2d 238 (1999); Daubert v Merrell Dow 

Pharm, Inc, 509 US 579, 591; 113 S Ct 2786; 125 L Ed 2d 469 (1993); Kowalski, 492 Mich at 

120. In this case, defendant challenges whether Lucey’s fracture match testimony was based on 

reliable scientific principles and methods, as well as Lucey’s qualifications to offer such 

testimony. 

During preliminary questioning, Lucey explained that the discipline of fracture match 

involved determining whether an object had been broken and, if so, observing whether the pieces 

could be fitted back together to determine whether they were a part of the same object. He stated 

that fracture matching was “much like a lock and key fit or a jigsaw puzzle type of thing,” much 
-4-

like putting pieces of a broken vase back together. We are satisfied that the trial court did not 

abuse its discretion in admitting Lucey’s testimony. Although Lucey did not cite any published 

articles on fracture match analysis, he testified that there were research and scientific papers 

discussing the subject. Moreover, he stated that his knowledge of fracture match principles came 

from both training in the laboratory and from having gone to “fracture match school.” He had 

previously been qualified to provide fracture match testimony in other cases. Defendant has not 

identified any case in which a court refused to recognize the reliability of fracture match 

analysis. We conclude that the trial court did not abuse its discretion in admitting Lucey’s 

fracture match testimony. 

Furthermore, even if the trial court erred in admitting the testimony, the error was 

harmless. A preserved, nonconstitutional error is presumed to be harmless “unless ‘after an 

examination of the entire cause, it shall affirmatively appear’ that it is more probable than not 

that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 

607 (1999), quoting MCL 769.26. “[T]he effect of the error is evaluated by assessing it in the 

context of the untainted evidence to determine whether it is more probable than not that a 

different outcome would have resulted without the error.” Id. at 495. Defendant argues that 

Lucey’s testimony was “the strongest piece of testimony” to refute the main defense theory that 

“there was a second person who shot from the passenger seat” who killed the victim. We 

disagree. Lucey’s testimony merely served to link defendant’s vehicle to the shooting. Lucey 

testified that black pieces of plastic recovered at the scene could be matched as portions of the 

damaged housing unit of the passenger-side mirror on defendant’s Subaru. However, witnesses 

consistently described the shooter’s vehicle as matching the description of defendant’s vehicle, 

Phillips expressly identified defendant as the shooter, and ballistics evidence established that the 

gun recovered from defendant’s vehicle was used to shoot the victim. In addition, at the time of 

defendant’s arrest, a police officer observed an apparent bullet hole through the passenger sideview mirror of defendant’s car. The defense theory at trial was that the victim was shot by a 

second person from the passenger seat inside defendant’s car. Lucey’s testimony was not 

probative of the number of people inside defendant’s vehicle at the time of the shooting. 

Accordingly, it is not more probable than not that a different outcome would have occurred if 

III. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises two additional issues in a pro se supplemental brief, filed pursuant to 

Supreme Court Administrative Order No. 2004-6, Standard 4, neither of which have merit. 

A. DIRECTED VERDICT

Defendant first argues in his Standard 4 brief that the trial court erred by denying his 

motion for a directed verdict of the charge of first-degree premeditated murder. We disagree.

“In assessing a motion for a directed verdict of acquittal, a trial court must consider the 

evidence presented by the prosecution to the time the motion is made[.]” People v Riley (After 

Remand), 468 Mich 135, 139; 659 NW2d 611 (2003). In so doing, “we review the evidence in a 

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.” People v 

Schrauben, 314 Mich App 181, 198; 886 NW2d 173 (2016) (quotations omitted). 
-5-

“Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the 

elements of the crime.” People v Gould, 225 Mich App 79, 86; 570 NW2d 140 (1997). 

“Before a defendant may be convicted of first-degree [premeditated] murder, the 

prosecution must prove that the defendant intentionally killed the victim and that the act of 

killing was premeditated and deliberate.” People v Schollaert, 194 Mich App 158, 170; 486 

NW2d 312 (1992). Defendant challenges the trial court’s determination that the prosecutor 

presented sufficient evidence of premeditation. “[B]ecause it can be difficult to prove a 

defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial 

evidence will suffice to establish the defendant’s state of mind, which can be inferred from all 

the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). In 

People v Oros, 320 Mich App 146, 154-155; 904 NW2d 209 (2017), oral argument gtd on the 

application 501 Mich 883 (2107), this Court observed:

To “premeditate” means “to think about beforehand.” People v Morrin, 

31 Mich App 301, 329, 187 NW2d 434 (1971). Merriam-Webster’s Collegiate 

Dictionary (11th ed.) defines “premeditate” as “to think about and revolve in the 

mind beforehand[.]” Black’s Law Dictionary (10th ed.) defines “premeditation” 

as “[c]onscious consideration and planning that precedes an act (such as 

committing a crime); the pondering of an action before carrying it out.” 

Premeditation can be proved through circumstantial evidence; however, 

inferences may “not be arrived at by mere speculation.” People v O’Brien, 89 

Mich App 704, 710, 282 NW2d 190 (1979). The prosecution may establish 

premeditation and deliberation through evidence of (1) the parties’ prior 

relationship, (2) the defendant’s actions before the killing, (3) the circumstances 

surrounding the killing itself, and (4) the defendant’s conduct after the killing. 

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

omitted.]

In addition, this Court has noted that “premeditation and deliberation require sufficient time to 

allow the defendant to take a second look.” Schollaert, 194 Mich App at 170. 

The evidence in this case was sufficient to support a finding of premeditation. Testimony 

was presented that defendant and the victim knew each other, but had recently become estranged, 

ostensibly because of defendant’s conduct toward the victim’s girlfriend or the victim’s custody 

battle with defendant’s sister. Testimony was also presented of defendant’s recent hostile 

encounters with the victim at the victim’s home. Such evidence may support an inference of 

premeditation. In addition, defendant visited the victim’s home and was involved in an 

altercation with the victim approximately 20 minutes before the shooting. The evidence 

indicated that defendant left the victim’s house, returned 20 minutes later, and immediately shot 

the unarmed victim before driving off and leaving town. The jury could find from this evidence 

that defendant formed an intent to kill the victim, went home to obtain a gun and pack some 

clothing, returned to the victim’s home intending to kill him, shot the victim, and then left town. 

Although defendant presents alternative reasons for why he would have his belongings in his car 

with him as he fled, the trial court was required to view the evidence in a light most favorable to 

the prosecution. A reasonable jury could have found that defendant had already packed and 

placed his belongings in his car when he shot the victim as part of a preconceived plan to kill the 
-6-

victim and leave town. The trial court did not err in denying defendant’s motion for a directed 

verdict. 

B. PSYCHOLOGICAL EVALUATION

Defendant next argues in his Standard 4 brief that the trial court erred by denying his 

request for an independent psychological evaluation under MCL 768.20(a)(3). We disagree. 

This Court reviews a trial court’s decision whether to grant an indigent defendant’s motion for 

the appointment of an expert witness for an abuse of discretion. People v Carnicom, 272 Mich 

App 614, 616; 727 NW2d 399 (2006). 

Defendant was entitled to an independent psychiatric evaluation only upon a showing of 

good cause. MCL 768.20a(3). At defense counsel’s request, defendant was examined twice by a 

doctor at the Center for Forensic Psychiatry. Defendant does not discuss either of the resulting 

psychological reports, but merely asserts that “health records showing that [defendant] was 

diagnosed with general anxiety and ADHD in the months before the shooting” were provided 

before the second evaluation. However, “[m]ental illness or having an intellectual disability 

does not otherwise constitute a defense of legal insanity.” MCL 768.21a(1). Defendant has not, 

either below or on appeal, presented anything to suggest that he could raise even a colorable 

claim of insanity. There is no basis for concluding that defendant established good cause for an 

independent psychiatric evaluation. Accordingly, the trial court did not abuse its discretion by 

denying defendant’s motion for an independent psychiatric evaluation.

Affirmed. 

/s/ William B. Murphy

/s/ Kathleen Jansen

/s/ Brock A. Swartzle