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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

July 13, 2017

v No. 329100

Wayne Circuit Court

NOSAKHARE ONUMONU, LC No. 12-000687-01-FH

Defendant-Appellant.

Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

Defendant appeals as of right his jury conviction of first-degree murder under dual 

theories of premeditated murder, MCL 750.316(1)(a), and felony murder, MCL 750.316(1)(b). 

The trial court sentenced defendant to life imprisonment without parole. We affirm.

I. FACTS AND PROCEEDINGS

Defendant was convicted of murdering 84-year-old Helen Klocek on March 2, 1999. 

Klocek ate breakfast at the Three Brothers Restaurant in the “three corners” area of Canton, 

Plymouth, and Westland around 11:00 a.m. on March 2. After finishing her meal, she left the 

restaurant alone. Klocek’s body was discovered after 9:00 p.m. that night, in an alley behind a 

church on Joy Road in Detroit. The medical examiner determined that the causes of death were 

strangulation and blunt force trauma to her head, neck, and chest areas, which was likely 

inflicted by the killer stomping on her body. Klocek’s white Ford Escort was discovered in the 

parking lot of Arbor, Inc., two blocks away from the location where her body was found. The 

driver’s seat had been intentionally set on fire. The police found a Kevlar glove in the back seat 

of the Escort.

Gwendolyn Gardner learned of Klocek’s death from a television news broadcast. 

Gardner notified the Detroit police that she thought she saw Klocek in her vehicle with a black 

male on March 2, 1999, at approximately 1:30 p.m. Gardner reported seeing a small white 

vehicle driving very slowly on Joy Road. The driver of the vehicle was an elderly white woman. 

The male occupant appeared to be pointing and giving the woman directions on where to drive. 

The police composed a computer-generated sketch of the suspect based on Gardner’s 

description. Before the sketch was composed, Gardner was shown a different composite sketch 

of a suspect in a series of purse snatchings in Plymouth. Gardner stated that the man she saw in 

Klocek’s vehicle resembled the Plymouth sketch.
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Klocek’s homicide remained unsolved until 2011, when the Detroit Police received 

funding to investigate cold cases. The Kevlar glove was submitted for DNA analysis and 

comparison of the evidence to the CODIS database. Three areas of the glove’s lining contained 

DNA that matched defendant’s DNA profile. In November 2011, defendant was charged with 

alternative counts of first-degree premeditated murder, first-degree felony-murder, and receiving 

or concealing stolen property (RCSP), MCL 750.535.

At the time defendant was arrested for the Klocek homicide in 2011, he was incarcerated 

for a prior unrelated conviction. His anticipated parole date was in early January 2012. His 

parole was suspended, and he remained incarcerated throughout the pretrial proceedings and 

trial, which was eventually held in July 2015. The pretrial proceedings involved three 

preliminary examination hearings. The district court initially declined to bind defendant over for 

trial on murder charges, but bound him over on the charge of RCSP. The RCSP charge was later 

dismissed because the limitations period for that offense had expired. The circuit court 

remanded the case to the district court for a second preliminary examination, at which the 

prosecutor presented evidence of a “mug shot” photograph of defendant taken by the Dearborn 

Heights Police in August 1999. The purpose of this photograph was to corroborate Gardner’s 

description of the male suspect she saw in Klocek’s vehicle. The district court again declined to 

bind defendant over for trial on the murder charges, believing that the evidence failed to establish 

a sufficient nexus between defendant and Klocek’s death. The prosecutor appealed the district 

court’s decision to the circuit court, which found that reasonable inferences arising from the 

evidence supported a finding of probable cause that defendant was responsible for Klocek’s 

death. Therefore, the circuit court reinstated the first-degree murder charges. Trial was delayed 

while defendant pursued interlocutory appeals of the circuit court’s decision to this Court, which 

were unsuccessful.

In January 2015, defendant was granted a third preliminary examination based on his 

recent discovery of the Plymouth sketch. Defendant argued that Gardner’s identification of him 

was unreliable because she had previously stated that the suspect resembled the Plymouth sketch, 

which allegedly did not resemble defendant. The district court found that the evidence 

established probable cause to believe that defendant was responsible for Klocek’s death, and 

therefore, bound defendant over for trial on the charges of first-degree murder. In July 2015, a 

jury found defendant guilty of first-degree murder under the alternative theories of premeditated 

murder and felony murder. The trial court denied defendant’s posttrial motions for a new trial or 

a Ginther1 hearing.

II. SPEEDY TRIAL

Defendant first argues that he was denied his constitutional right to a speedy trial. “A 

defendant must make a formal demand on the record to preserve a speedy trial issue for appeal.” 

People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999) (quotation marks and citation 

omitted). Defendant did not assert in the trial court that the delays in proceeding to trial violated 

his constitutional right to a speedy trial. Although defendant argues that his pretrial habeas 

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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corpus motion should be considered an assertion of his right to a speedy trial, defendant only 

argued in that motion that he should be paroled from the prison term he was already serving. 

The motion did not mention defendant’s right to speedy trial. Accordingly, the speedy trial issue 

is unpreserved.

“Whether defendant was denied his right to a speedy trial is an issue of constitutional 

law,” which is reviewed de novo. People v Williams, 475 Mich 245, 250; 716 NW2d 208 

(2006). But because this issue is unpreserved, defendant has the burden of establishing a plain 

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

(1999).

“Both the United States Constitution and the Michigan Constitution guarantee a criminal 

defendant the right to a speedy trial.” Williams, 475 Mich at 261, citing US Const, Am VI; 

Const 1963, art 1, § 20; see also People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 

(2013). “In determining whether a defendant has been denied the right to a speedy trial, [courts] 

balance the following four factors: (1) the length of the delay, (2) the reason for delay, (3) the 

defendant’s assertion of the right, and (4) the prejudice to the defendant.” Williams, 475 Mich at 

261-262. The period for analyzing a speedy trial claim commences at the arrest of the defendant. 

Id. at 261. “Following a delay of eighteen months or more, prejudice is presumed, and the 

burden shifts to the prosecution to show that there was no injury.” Id. at 262. “When the delay 

is less than 18 months, the defendant must prove that he or she suffered prejudice.” Rivera, 301 

Mich App at 193. A defendant’s failure to promptly assert his right to a speedy trial weighs 

against his subsequent claim that he was denied the right. People v Rosengren, 159 Mich App 

492, 508; 407 NW2d 391 (1987). Where the defendant has incurred a violation of his or her 

constitutional right to a speedy trial, the charges must be dismissed with prejudice. People v 

Waclawski, 286 Mich App 634, 664-665; 780 NW2d 321 (2009).

In assessing the reasons for delays, each period of delay is examined and attributed to the 

prosecutor or the defendant. People v Walker, 276 Mich App 528, 541-542; 741 NW2d 843 

(2007), vacated in part on other grounds 480 Mich 1059 (2008), and overruled in part by People 

v Lown, 488 Mich 242 (2011). Unexplained delays are attributed to the prosecutor. Waclawski, 

286 Mich App at 666. “Although delays inherent in the court system, e.g., docket congestion, 

are technically attributable to the prosecution, they are given a neutral tint and are assigned only 

minimal weight in determining whether a defendant was denied a speedy trial.” Williams, 475 

Mich at 263 (quotation marks and citation omitted). Delays sought by defense counsel, whether 

counsel is retained or assigned, are ordinarily attributable to the defendant. Vermont v Brillon, 

556 US 81, 90-91; 129 S Ct 1283; 173 L Ed 2d 231 (2009). Delay caused by an interlocutory 

appeal is not attributable to either party. Waclawski, 286 Mich App at 667. The time between 

dismissal and reinstatement of a charge is not counted against either party. People v Wickham, 

200 Mich App 106, 111; 503 NW2d 701 (1993).

The total period from the issuance of the arrest warrant on November 15, 2011, to the 

first day of trial on July 20, 2015, is 1,343 days. A period of 248 days may be attributed to 
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defendant’s motions or requests.2 In addition, 518 days may be attributed to stays for 

interlocutory appeals, which are not attributable to either party. See Waclawski, 286 Mich App 

at 667. After subtracting these periods from the total delay period of 1,343 days, we are left with 

a net delay of 577 days. Because the total number of days (577) exceeds 18 months, albeit by 

only 37 days, prejudice is presumed. In this circumstance, the burden would normally fall on the 

prosecution to show that defendant was not prejudiced by the delay. See Williams, 475 Mich at 

262; Rivera, 301 Mich App at 193. But because defendant did not preserve this issue by 

asserting his right to a speedy trial in the trial court, the prosecution did not have the opportunity 

to demonstrate that defendant was not prejudiced by the delays. Because defendant failed to 

preserve the issue, he has the burden of demonstrating a plain error affecting his substantial 

rights. See Carines, 460 Mich at 763-764. An error is plain if it is clear or obvious, and an error 

affects substantial rights if it is prejudicial, i.e., if it affects the outcome of the proceedings. 

People v Jones, 468 Mich 345, 355; 662 NW2d 376 (2003).

There are two types of prejudice that a defendant can experience by delays in preceding 

to trial, prejudice to his person because of continued incarceration, and prejudice to the defense. 

Williams, 475 Mich at 264. Defendant contends that he was prejudiced because he was 

scheduled to be paroled from prison in February 2012, but he was never released from his 

incarceration. Although defendant experienced personal deprivation by his continued 

incarceration, the prejudice prong may still weigh against a defendant who is incarcerated for 

even longer periods if his defense is not prejudiced by the delay. See id. at 264. Defendant 

asserts that his “memory of the circumstances to challenge the State’s inference in this wholly 

circumstantial case should be considered as a factor in terms of his ability to build his defense.” 

However, defendant does not specify how his memory was affected by the delays between his 

arrest and trial, as opposed to the delay of over 12 years between the offense in 1999 and his 

arrest in 2011. The defense theory at trial was that defendant was misidentified as the 

perpetrator. Presumably defendant means that he cannot remember his activities on March 2, 

1999, to establish an alibi or recall other exculpatory circumstances. This argument is not 

persuasive because defendant never asserted below—and there is no basis in the record for 

concluding—that defendant’s memory of his whereabouts and activities on March 2, 1999 was

any better when he was arrested in 2011 than when trial began in 2015. Defendant also asserts 

that his incarceration throughout the pretrial period prevented him from helping any of his 

attorneys obtain information in support of a defense. Again, however, defendant does not 

specify what evidence was lost or could not be obtained as a result of the delays between 2011 

and 2015. The fact that defendant never asserted his right to a speedy trial in the trial court 

weighs against his general, unspecified claims of prejudice on appeal. Moreover, defendant 

actively managed his own defense to a significant degree, despite his continued incarceration 

 2 This period includes (1) 92 days between December 2, 2013 and March 4, 2014, related to the 

appointment of new counsel, (2) 71 days between November 19, 2014 and January 29, 2015, 

after the circuit court granted defendant’s motion to remand the case to the district court for a 

third preliminary examination, (3) five days from February 25, 2015 to March 2, 2015, due to the 

withdrawal of defendant’s counsel, and (4) 80 days from May 1, 2015 to July 20, 2015, for an 

adjournment of trial to enable new counsel to prepare for trial.
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from his previous conviction. Under the circumstances, defendant has not established that it is 

clear or obvious that he was prejudiced by the delay between his arrest and trial. Therefore, 

defendant has not shown that he was denied his right to a speedy trial.

III. CIRCUIT COURT’S REINSTATEMENT OF THE MURDER CHARGES

Defendant next argues that the circuit court erred and improperly substituted its judgment 

for that of the district court when it reinstated the first-degree murder charges. A district court’s 

ruling that alleged conduct falls within the scope of a criminal law is a question of law that is 

reviewed de novo for error, but a decision to bind over a defendant based on the factual 

sufficiency of the evidence is reviewed for an abuse of discretion. People v Perkins, 468 Mich

448, 452; 662 NW2d 727 (2003); People v Hotrum, 244 Mich App 189, 191; 624 NW2d 469 

(2000). In reviewing a bindover decision, a circuit court must consider the entire record of the 

preliminary examination and may not substitute its judgment for that of the district court. People

v McKinley, 255 Mich App 20, 25; 661 NW2d 599 (2003). The decision to bind over a 

defendant may only be reversed if it appears from the record that the district court abused its 

discretion. Id. This Court also reviews the district court’s bindover decision de novo to 

determine if the district court abused its discretion. People v Libbett, 251 Mich App 353, 357;

650 NW2d 407 (2002). Thus, this Court gives no deference to the circuit court’s decision. 

People v Harlan, 258 Mich App 137, 145; 669 NW2d 872 (2003). “An abuse of discretion 

occurs when the trial court’s decision falls outside the range of principled outcomes.” People v 

Seewald, 499 Mich 111, 116; 879 NW2d 237 (2016) (quotation marks and citation omitted). In 

People v Feeley, 499 Mich 429, 434; 885 NW2d 223 (2016), our Supreme Court reiterated that 

“[a] district court’s decision regarding a bindover is reviewed for an abuse of discretion,” while 

noting that a district court would necessarily abuse its discretion if it made an error of law.

Defendant challenges reinstatement of the first-degree murder charges on both procedural 

and substantive grounds. He asserts three procedural irregularities: (1) the prosecutor’s failure to 

timely appeal the district court’s order of dismissal; (2) the prosecutor’s attempt to circumvent 

the 21-day appeal period by filing a Renewed Motion to Amend Information in lieu of an appeal 

of the district court’s decision; and (3) the prosecutor’s failure to properly serve him with the 

Renewed Motion to Amend. We reject each of these procedural challenges.

The circuit court properly determined that the prosecutor’s appeal was timely filed. It is 

well settled that “[a] court speaks through written judgments and orders rather than oral 

statements or written opinions.” People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993). 

Although the appeal was filed more than 21 days after the district court’s oral ruling, it was filed 

on December 7, 2012, within the 21-day period after entry of the district court’s order on 

November 16, 2012. See MCR 1.108(1). Thus, the appeal was timely filed.

Defendant complains that the prosecutor failed to “obtain” a written order from the 

district court. However, defendant, as a party to the action, also could have obtained a written 

order from the court in accordance with the procedures set forth in MCR 2.602. See MCR 

6.101(D) (the rules of civil procedure apply to criminal cases unless otherwise provided or a rule 

clearly applies to civil actions only). Moreover, the prosecutor did try to expedite the stalled 

proceedings by moving to amend the information one month after the district court’s oral 

decision on June 15, 2012 dismissing the murder charges. That motion was not improper 
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because a prosecutor is permitted to seek review of the district court’s decision by filing a motion 

to amend the information. See People v Goecke, 457 Mich 442, 458; 579 NW2d 868 (1998).

Defendant does not explain why the prosecutor’s renewed motion to amend the 

information violated his rights, aside from stating that the prosecutor improperly served this 

motion on his former attorney instead of serving him personally. However, any error in service 

of this pleading was harmless because the circuit court never formally addressed the prosecutor’s 

motion to amend. The circuit court indicated that it did not resolve this motion because it had 

previously remanded the case and “the appropriate resolution was to go get additional evidence” 

for the second preliminary examination, i.e., review the district court’s decision after the second 

preliminary examination. The prosecutor properly filed a claim of appeal after the district court 

entered its order on remand. Defendant also implies that he was not served with the claim of 

appeal, but the trial court adjourned the appeal hearing on January 3, 2013, after defendant 

requested counsel, and defendant filed a brief before the hearing was continued on March 22, 

2013, at which his new counsel appeared and argued in opposition to the appeal. Thus, any 

initial defect in service was cured and defendant was afforded his right to due process.

Defendant also argues that the circuit court improperly substituted its own judgment for 

that of the district court when it reversed the district court’s ruling that the evidence at the 

preliminary examination failed to establish probable cause to believe that defendant committed 

the charged offense. “If a defendant is fairly convicted at trial, no appeal lies regarding whether 

the evidence at the preliminary examination was sufficient to warrant a bindover.” People v 

Wilson, 469 Mich 1018; 677 NW2d 29 (2004), citing People v Yost, 468 Mich 122, 124 n 2; 659 

NW2d 604 (2003). Accordingly, if sufficient evidence to support defendant’s conviction was 

presented at trial and there are no other grounds for reversing his conviction, any error with 

respect to reinstating the murder charges is harmless. In any event, the circuit court’s decision 

was not erroneous.

Defendant contends that the district court found that there was no probable cause linking 

him to Klocek’s murder because any connection between him and Klocek’s death depended on 

unreasonable inferences. However, the district court found that probable cause depended upon 

building an inference upon an inference, i.e., inferring that defendant was in the car with Klocek, 

and then inferring from that that defendant was responsible for Klocek’s death. The district court 

did not indicate that either inference was unreasonable, but only concluded that the stacking of 

inferences was legally impermissible to establish probable cause. The distinction is significant 

because under the applicable standard of review, the circuit court reviews questions of law de 

novo. The question whether an inference may be based on another inference to establish 

probable cause is a question of law. In People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 

(2002), our Supreme Court rejected the principle “that an inference can not [sic] be built upon an 

inference to establish an element of the offense.” The Court noted that although this principle 

had been articulated in People v Atley, 392 Mich 298; 220 NW2d 465 (1974), “virtually from the 

time of its publication, Atley was apparently felt to be unworkable and has been the subject of 

judicial redefinition by a series of decisions.” Hardiman, 466 Mich at 424. The Court stated:

Accordingly, when reviewing sufficiency of the evidence claims, courts should 

view all the evidence—whether direct or circumstantial—in a light most favorable 

to the prosecution to determine whether the prosecution sustained its burden. It is 
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for the trier of fact, not the appellate court, to determine what inferences may be 

fairly drawn from the evidence and to determine the weight to be accorded those 

inferences. In compliance with MRE 401, we overrule “the inference upon an 

inference” rule of Atley and its progeny. [Id. at 428.]

Hardiman involved a challenge to the sufficiency of the evidence to support the 

defendant’s conviction. Id. at 419. A conviction must be supported by sufficient evidence to 

prove the defendant’s guilt beyond a reasonable doubt. Id. at 421-422. The standard for 

establishing probable cause is lower than the reasonable doubt standard. “The primary function 

of the preliminary examination is to determine whether a crime has been committed and, if so, 

whether there is probable cause to believe that the defendant committed it.” People v 

Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009). “To establish that a crime has been 

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

present some evidence of each element.” Id. Accordingly, if an inference-upon-an-inference is 

permissible for establishing a defendant’s guilt, it is also permissible for establishing probable 

cause. The circuit court properly ruled that the district court’s decision was based on its 

erroneous belief that an inference could not be based on another inference. The circuit court also 

properly ruled that the inferences arising from the evidence in this case were sufficient to 

establish probable cause to believe that defendant was responsible for Klocek’s death. It was the 

function of the trier of fact to determine if the asserted inferences were reasonable and to 

determine the weight to be accorded those inferences. Therefore, the circuit court did not err in 

reinstating the first-degree murder charges.

IV. CIRCUIT COURT’S JURISDICTION OVER FELONY-MURDER CHARGE

Defendant next argues that the circuit court never properly obtained jurisdiction over the 

felony-murder charge. He contends that the circuit court’s reinstatement of the murder charge 

pertained only to premeditated murder, not felony murder. Whether a court has jurisdiction over 

a matter is a question of law that is reviewed de novo. People v Laws, 218 Mich App 447, 451; 

554 NW2d 586 (1996).

Our Supreme Court “has consistently held that the circuit court acquires jurisdiction of 

the case upon the making of a proper return from the magistrate before whom the defendant had 

been examined or waived examination.” People v Curtis, 389 Mich 698, 707; 209 NW2d 243

(1973). The record does not support defendant’s contention that the circuit court reinstated only 

the first-degree premeditated murder charge, and not the felony-murder charge. Moreover, 

premeditated murder and felony murder are merely different forms of the same offense, firstdegree murder, MCL 750.316(1)(a) and (b). This is reflected in the principle that convictions of 

both first-degree premeditated murder and first-degree felony murder arising from the death of a 

single victim violate the constitutional double jeopardy protection against multiple punishments 

for the same offense. People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). Thus, 

when a defendant is convicted of both first-degree premeditated murder and first-degree felonymurder, the judgment of sentence must specify a single conviction of first-degree murder 

supported by two theories: premeditated murder and felony murder. Id. Accordingly, 

defendant’s argument that the circuit court had jurisdiction over only the premeditated murder 

charge, and not the felony-murder charge, is without merit.
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V. SUPPRESSION OF EVIDENCE

Among the statement of questions presented in defendant’s brief is an issue challenging 

the trial court’s pretrial decision denying defendant’s motion to suppress the Kevlar glove. 

However, defendant fails to address this issue in the body of his brief. “An appellant’s failure to 

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

People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004). Because defendant does not 

address this issue in his brief, it has been abandoned. But, as the trial court observed, 

defendant’s arguments regarding alleged irregularities in the chain of custody for the glove, as 

well as alleged inaccuracies in labeling the glove as left-handed and a discrepancy in the listed 

date the glove was received by an evidence technician were matters affecting only the weight of 

the evidence, not its admissibility. See People v White, 208 Mich App 126, 129-131; 527 NW2d 

34 (1994).

VI. SUFFICIENCY OF EVIDENCE

Defendant argues that the evidence was insufficient to support his conviction of firstdegree murder, under either a theory of premeditated murder or felony murder. “Appeals 

regarding the sufficiency of the evidence are reviewed de novo.” People v Henderson, 306 Mich 

App 1, 8; 854 NW2d 234 (2014). “In reviewing the sufficiency of the evidence, this Court must 

view the evidence in the light most favorable to the prosecution and determine whether a rational 

trier of fact could find that the essential elements of the crime were proved beyond a reasonable 

doubt.” Id. at 9. This Court “must not interfere with the jury’s role” in deciding the weight of 

evidence and the credibility of witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 

748, amended 441 Mich 1201 (1992). “Circumstantial evidence and reasonable inferences 

arising from that evidence can constitute satisfactory proof of the elements of a crime.” People v 

Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (quotation marks and citation omitted). “It is 

for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn 

from the evidence and to determine the weight to be accorded those inferences.” Hardiman, 466 

Mich at 428. “[I]f evidence is relevant and admissible, it does not matter that the evidence gives 

rise to multiple inferences or that an inference gives rise to further inferences.” Id.

The elements of first-degree premeditated murder, MCL 750.316(1)(a), 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). Because of the difficulty of proving an actor’s state 

of mind, “minimal circumstantial evidence will suffice to establish the defendant’s state of 

mind[.]” Henderson, 306 Mich App at 11. Premeditation and deliberation require sufficient 

time to allow the defendant to reconsider his actions, or in other words, sufficient time to “take a 

second look.” People v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999) (quotation 

marks and citation omitted). Factors relevant to the establishment of premeditation and 

deliberation include: “(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.” Id. (quotation marks and citation omitted).

The circumstances surrounding Klocek’s death support an inference that she was killed 

with premeditation and deliberation. The medical examiner identified multiple injuries 

contributing to her death. The perpetrator strangled her and delivered traumatic blows to her 
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head, neck, and chest, consistent with a stomping motion. The evidence of the multiple blunt 

force injuries in addition to strangulation supports an inference that the killer had the opportunity 

to premeditate and deliberate his actions, and was determined to continue his attack until Klocek 

was killed. The evidence that Klocek was taken to an isolated area further supports that the killer 

acted in accordance with a premeditated plan to kill her.

The evidence was also sufficient to support the elements of felony murder, MCL 

750.316(1)(b). 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 [i.e., malice], (3) 

while committing, attempting to commit, or assisting in the commission of any of the felonies 

specifically enumerated in [MCL 750.316(1)(b)].” Carines, 460 Mich at 759 (quotation marks 

and citation omitted). “[L]arceny of any kind” is a predicate offense enumerated in MCL 

750.316(1)(b). The elements of larceny are: “(a) a trespassory taking and (b) the carrying away 

(c) of the personal property (d) of another (e) with intent to steal that property.” People v March, 

499 Mich 389, 401; 886 NW2d 396 (2016). Witnesses testified that Klocek was protective of 

her purse, which she had with her when she left the Three Brothers Restaurant, but her purse was 

not found at the scene of the homicide or in her abandoned car. The jury could reasonably infer 

that the person who killed Klocek took her purse. The fact that the purse was never found does 

not negate this inference. The evidence showed that the driver’s seat of Klocek’s car was set on 

fire. This evidence supports an inference that the fire was started in an effort to conceal evidence 

of the perpetrator’s guilt. It is reasonable to infer that the person who took the purse also would 

have discarded it to prevent its discovery. The evidence was sufficient to enable the jury to find 

beyond a reasonable doubt that Klocek was killed during the commission of a larceny.

Defendant primarily argues that the evidence was insufficient to prove his identity as the 

killer. Identity is an essential element of every crime. People v Yost, 278 Mich App 341, 354; 

749 NW2d 753 (2008). Defendant concedes that Gardner’s testimony and the DNA analysis of 

the Kevlar glove support an inference that he was in Klocek’s vehicle. He argues, however, that 

there was no evidence connecting him to the location of the homicide or the missing purse. He 

asserts that his alleged presence in Klocek’s vehicle is insufficient to connect him to the location 

of the murder and the discovery of Klocek’s body. We disagree.

Although the prosecutor could not account for the approximate eight-hour gap between 

Gardner’s sighting of defendant with Klocek in her car and the discovery of Klocek’s body, a 

reasonable trier of fact could have found that the circumstantial evidence established defendant’s 

identity as the killer. The prosecutor introduced testimony that Klocek was protective of her 

purse and kept it close to her, yet it was not with her when her body was discovered, nor was it 

inside her vehicle. The evidence indicated that defendant was the last person known to have 

contact with Klocek. Defendant was a stranger to Klocek, but Gardner’s testimony placed him 

inside Klocek’s vehicle shortly after she left the Three Brothers Restaurant. Gardner’s testimony 

that Klocek was driving slowly and that defendant appeared to be directing her where to drive 

supported an inference that Klocek was not acting of her own volition when she was with 

defendant, and that defendant’s presence in her vehicle was not consensual. Klocek’s vehicle 

was discovered in a commercial parking lot, but there was no evidence that anyone saw Klocek 

alive after she was observed with defendant, or evidence that she attempted to contact the police 

or a family member between the time she was seen with defendant in the afternoon on the day of 
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her death and the discovery of her body later that night. Therefore, the jury could reasonably 

reject any suggestion that Klocek parted from defendant in safety, only to have the additional 

misfortune of falling victim to another person unconnected to defendant. Viewed in a light most 

favorable to the prosecution, the evidence was sufficient to allow the jury to find beyond a 

reasonable doubt that defendant was the person responsible for Klocek’s death.

VII. IDENTIFICATION TESTIMONY

Defendant next argues that the admission of Gardner’s identification testimony violated 

his due process rights. Because defendant did not move to exclude Gardner’s identification 

testimony before trial, or object to its admission at trial, this issue is unpreserved. Unpreserved 

issues are reviewed for plain error affecting substantial rights. Carines, 460 Mich at 763-764.

To sustain a due process challenge based on an improper pretrial identification procedure, 

the defendant must demonstrate that the “identification procedure was so suggestive in light of 

the totality of the circumstances that it led to a substantial likelihood of misidentification.”

People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993). If a pretrial procedure was 

impermissibly suggestive, testimony concerning that identification is inadmissible at trial, unless 

an independent basis for the in-court identification can be established that is untainted by the 

suggestive pretrial procedure. Id. at 303.

Defendant does not expressly argue that Gardner was exposed to an unfairly suggestive 

pretrial identification procedure that unduly influenced her identification testimony. Rather, 

defendant advances various reasons for why he believes Gardner’s identification testimony was 

not credible, and thus insufficient to establish his identity as the perpetrator. Defendant 

emphasizes that when Gardner was interviewed by the police in March 1999, she was shown a 

composite sketch of a suspect in a series of purse-snatchings in Plymouth. Gardner stated that 

the man she saw in Klocek’s vehicle resembled the Plymouth sketch. Defendant maintains that 

the two sketches are not similar, and that Gardner’s statement regarding the similarity of the 

Plymouth sketch should therefore be construed to mean that she could not have seen him in 

Klocek’s car. Defendant emphasizes that Gardner failed to identify him at the 2012 preliminary 

examination, but three years later made a positive identification. He contends that the positive 

identification cannot be attributable to her memory, but instead must have come from seeing him 

at prior hearings. He also contends that her description does not match his actual appearance, 

specifically in regard to his complexion and eye color. Defendant further argues that the most 

reliable procedure for testing Gardner’s identification would have been to compose a 

photographic lineup using his 1999 Dearborn Heights mug shot, and that the failure to use this 

procedure should have precluded Gardner’s identification testimony at trial.

Defendant’s arguments relate to the credibility and reliability of Gardner’s identification 

testimony, which were matters for the jury to decide. See Wolfe, 440 Mich at 514-515. 

Defendant exercised the opportunity to thoroughly cross-examine Gardner on all aspects of her 

identification. Defendant questioned Gardner about the length of time she drove in proximity to 

Klocek’s car and the relative positions of her van and Klocek’s vehicle. He elicited Gardner’s 

admission that she “glanced” downward into Klocek’s car as she passed it on the left in her fullsize van. Defendant also questioned Gardner about her description of the man as having a light 

complexion and light-colored eyes, and called the jury’s attention to defendant’s appearance. 
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The jury viewed the Plymouth sketch and the sketch that was composed from Gardner’s 

description, and had the opportunity to consider whether their similarities or dissimilarities 

corroborated or undermined Gardner’s identification. It was up to the jury to assess the accuracy 

of Gardner’s identification, and to determine whether Gardner’s testimony, in conjunction with 

the evidence of the glove, defendant’s work and home locations, and the other evidence in the 

case were sufficient to establish defendant’s identity as the perpetrator.

Defendant argues that, by the time of trial, Gardner was able to identify him only because 

she had seen him at the previous preliminary examinations. Defendant maintains that Gardner’s 

inability to identify him at the first preliminary examination established that her identification of 

him at the third preliminary examination and at trial could only have been based on her 

observation of defendant at the first preliminary examination. Contrary to what defendant 

asserts, however, Gardner did not express an inability to identify him at the first preliminary 

examination. Rather, she was never asked to identify him at that preliminary examination.

Although the photographic lineup procedure suggested by defendant may have been an 

appropriate means of testing Gardner’s identification, the omission of this procedure does not 

constitute a due process violation. The pertinent inquiry is whether, “in the light of the totality of 

the circumstances,” the pretrial identification procedures “led to a substantial likelihood of 

misidentification.” Kurylczyk, 443 Mich at 302. Defendant fails to satisfy this threshold. The 

failure to conduct a photographic lineup does not constitute a plain error affecting defendant’s 

substantial rights.

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues that a new trial is necessary because he was denied the effective 

assistance of counsel. Although defendant moved in the trial court for a Ginther hearing, the 

trial court denied the motion, concluding that an evidentiary hearing was not necessary. 

Accordingly, our review of this issue “is limited to mistakes apparent on the record.” People v 

Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

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

proving otherwise.” People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). “To 

demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s 

performance fell below an objective standard of reasonableness under prevailing professional 

norms and that this performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 

207; 836 NW2d 224 (2013) (citation omitted). “This Court does not second-guess counsel on 

matters of trial strategy, nor does it assess counsel’s competence with the benefit of hindsight. 

People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Defendant has the burden of 

establishing the factual predicate of his claim of ineffective assistance of counsel. People v 

Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Defendant argues that defense counsel was ineffective for failing to adequately crossexamine witnesses, and failing to present or elicit exculpatory evidence. “Decisions regarding 

whether to call or question witnesses are presumed to be matters of trial strategy.” Russell, 297 

Mich App at 716. “[F]ailure to call witnesses only constitutes ineffective assistance of counsel if 

it deprives the defendant of a substantial defense.” Id. (quotation marks and citation omitted).
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Defendant argues that defense counsel was ineffective for failing to cross-examine 

witnesses regarding irregularities in the documentation for the Kevlar glove obtained from 

Klocek’s vehicle. Defendant contends that “there was actually no glove discovered with Ms. 

Klocek’s vehicle in March of 1999,” but trial counsel failed to pursue this exculpatory theory to 

defendant’s advantage. The glove was listed and described in Officer Babcock’s report, dated 

March 8, 1999. According to defendant, irregularities in the glove’s paper trail diminished the 

glove’s evidentiary value, but trial counsel failed to adequately pursue this theory. Although 

defendant correctly notes that the glove was the only item of evidence that objectively associated 

him with the victim’s vehicle, he overestimates the potential to diminish the glove’s evidentiary 

value. Trial counsel did, in fact, attempt to cast doubt on the glove’s provenance, and defendant 

has not demonstrated that counsel’s attack on this evidence was prejudicially deficient.

Officer Babcock testified on direct examination that his entry of the “3-8-10” date in his 

report was a typographical error. He also stated that he was uncertain which side of the glove 

was the palm side, which explained his mistake in describing the glove as left-handed. The 

prosecutor evidently anticipated that Babcock’s errors potentially detracted from the persuasive

value of this evidence, and thus elicited Babcock’s explanations on direct examination. 

Defendant contends that defense counsel failed to pursue “any alternate theory” regarding the 

glove, but he fails to offer a specific and plausible alternate theory. Defendant also criticizes 

counsel for failing to cross-examine Babcock regarding his “carelessness” with evidence and 

“the potential for tampering” the report. But the prosecutor had already elicited testimony 

regarding his errors on direct examination; thus, defendant has not overcome the presumption 

that defense counsel’s failure to further pursue the matters on cross-examination was objectively 

reasonable, or shown that he was deprived of a substantial defense.

Officer Ellis explained on direct examination that he did not submit the glove for DNA 

analysis in 1999 because at that time the crime lab would not conduct DNA analysis of evidence 

without a suspect. On cross-examination, defense counsel elicited Ellis’s admission that he 

submitted fingernail clippings and rape kit evidence for DNA analysis, despite not having a 

suspect. Defense counsel thus elicited testimony to support an inference that Ellis did not have a 

legitimate reason for not requesting DNA analysis of the glove. There is no basis for inferring 

that defense counsel overlooked opportunities to cross-examine Ellis in support of the defense 

theory.

Defendant also argues that defense counsel was ineffective for failing to cross-examine 

prosecution witnesses or introduce evidence that the police had investigated other suspects in 

relation to Klocek’s murder. There is no basis for inferring that any of the witnesses could have 

provided a substantial defense. Defendant relies on information from police documents prepared 

in 1999. There is no evidence regarding these persons’ availability to testify at trial, or 

indicating what information they could have given at the time of defendant’s trial. Accordingly, 

the record does not support a finding that defense counsel’s failure to call these witnesses was 

objectively unreasonable, or that calling the witnesses would have led to a more favorable 

outcome for defendant.

Defendant asserts that defense counsel failed to cross-examine witnesses to rebut 

evidence that he worked and resided near the Three Brothers Restaurant. However, defendant 

has not made an offer of proof disputing the prosecutor’s evidence regarding the location of his 
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home and workplace on March 2, 1999. Defendant’s failure to establish the factual predicate for 

this claim precludes relief. See Hoag, 460 Mich at 6.

Further, defendant has failed to demonstrate that remand for a Ginther hearing is 

necessary to develop an evidentiary record to support his claims of ineffective assistance of 

counsel. Defendant does not identify any relevant evidence that could be developed at an 

evidentiary hearing and has not submitted any affidavits or other evidence to demonstrate that 

additional witnesses could provide relevant evidence in support of his claim of ineffective 

assistance of counsel. Accordingly, we deny defendant’s request to remand this case for a 

Ginther hearing.

IX. MOTION FOR NEW TRIAL

Defendant lastly argues that the trial court erred in denying his motion for a new trial. 

We review a trial court’s decision denying a motion for a new trial for an abuse of discretion. 

People v McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).

Defendant argues that he should be granted a new trial because “for all the foregoing 

reasons,” his conviction resulted in a miscarriage of justice. This argument seeks relief under a 

cumulative error theory. “The cumulative effect of several errors can constitute sufficient 

prejudice to warrant reversal even when any one of the errors alone would not merit reversal.”

People v Dobek, 274 Mich App 58, 106; 732 NW2d 546 (2007). “This Court reviews a 

cumulative-error argument to determine if the combination of alleged errors denied the defendant 

a fair trial.” People v Hill, 257 Mich App 126, 152; 667 NW2d 78 (2003). Defendant has failed 

to establish any of his individual claims of error. Moreover, the only matters asserted by 

defendant that could reasonably have a cumulative prejudicial effect are Gardner’s identification 

testimony and the Kevlar glove. These evidentiary items jointly established defendant’s identity 

as the perpetrator. However, defendant has not established that either item was erroneously 

admitted.

Defendant also complains that he was convicted on the basis of circumstantial evidence, 

and inferences that he contends are not reasonable. This argument attacks the weight of the 

evidence. A new trial may be granted if a jury’s verdict is against the great weight of the 

evidence. People v Herbert, 444 Mich 466, 475; 511 NW2d 654 (1993), overruled in part on 

other grounds in People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998). The test for 

whether a verdict was contrary to the great weight of the evidence is “whether the evidence 

preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the 

verdict to stand.” McCray, 245 Mich App at 637.

Generally, “conflicting testimony or a question as to the credibility of a witness are not 

sufficient grounds for granting a new trial.” People v Bosca, 310 Mich App 1, 13; 871 NW2d 

307 (2015), quoting Lemmon, 456 Mich at 643. Exceptional circumstances are required for a 

new trial to be granted based on witness credibility. Exceptional circumstances include 

testimony that contradicts “indisputable physical facts or laws,” or that is “so inherently 

implausible that it could not be believed by a reasonable juror,” or that was “seriously impeached 

in a case that marked by uncertainties and discrepancies.” Bosca, 310 Mich App at 13, quoting 

People v Galloway, 307 Mich App 151, 167; 858 NW2d 520 (2014) (quotation marks omitted), 
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rev’d in part on other grounds 498 Mich 902 (2015). Defendant questions the credibility of 

Gardner’s identification testimony, but does not identify any exceptional circumstances that 

would allow a court to substitute its view of her credibility for that of the jury. Moreover, 

Gardner’s identification testimony was corroborated by the DNA evidence in the Kevlar glove. 

Accordingly, the jury’s verdict is not against the great weight of the evidence. Thus, the trial 

court did not abuse its discretion in denying defendant’s motion for a new trial.

Affirmed.

/s/ Karen M. Fort Hood

/s/ Mark J. Cavanagh

/s/ Amy Ronayne Krause