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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

October 22, 2015 

v No. 319301 

Wayne Circuit Court 

LESTER MARTEZ BENFORD, LC No. 13-001867-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 319308 

Wayne Circuit Court 

RODNEY CLARENCE KENNARD, LC No. 13-003288-FC 

 Defendant-Appellant. 

Before: FORT HOOD, P.J., and CAVANAGH and K. F. KELLY, JJ. 

PER CURIAM. 

 Defendants Lester Martez Benford and Rodney Clarence Kennard were tried jointly, 

before a single jury. The jury convicted defendant Benford of second-degree murder, MCL 

750.317, and convicted defendant Kennard of first-degree premediated murder, MCL 

750.316(1)(a).1

 The trial court sentenced defendant Benford to 38 to 60 years’ imprisonment for 

his second-degree murder conviction, and sentenced defendant Kennard to life imprisonment 

without parole for his first-degree murder conviction. Defendant Benford appeals as of right in 

Docket No. 319301, and defendant Kennard appeals as of right in Docket No. 319308. We 

affirm in both appeals. 

 

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 The jury acquitted defendant Benford of first-degree premediated murder, MCL 750.316(1)(a), 

and acquitted each defendant of felon in possession of a firearm, MCL 750.224f, and possession 

of a firearm during the commission of a felony, MCL 750.227b. 
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I. BASIC FACTS 

 Defendants were convicted of murdering Delrico Taylor, who died from multiple gunshot 

wounds. The victim’s body was discovered during the early morning hours of September 12, 

2011, in the garage of a vacant home in Detroit. The body had been badly burned. An odor of 

gasoline was detected when the body was moved. Bullets removed from the victim’s body and 

shell casings found near the scene indicated that two firearms were involved in the shooting. 

 Earlier in the evening, the victim was at a nearby home with his longtime friend, Locaster 

Croskey. The victim flagged down defendants Benford and Kennard, who had known the victim 

for many years. A few months before the shooting, the victim had stabbed defendant Benford, 

causing him to seek medical treatment. As the men entered Croskey’s home, defendant Benford 

threatened to shoot a small dog that was barking at him. Eventually, the victim left Croskey’s 

home with defendants and Antowan Stitts to go to a liquor store. 

 Defendants and Stitts were charged with the victim’s murder, but Stitts pleaded guilty to 

accessory after the fact, MCL 750.505, pursuant to a plea agreement. At trial, he testified that 

the men were walking when he heard a clicking sound. According to Stitts, defendant Benford 

tried to shoot the victim, but Benford’s gun, described by Stitts as a .380, jammed. The victim 

and defendant Benford then struggled over the gun, which discharged, striking defendant 

Benford in the hands. The victim fled, but defendant Kennard chased him down and struck him. 

The victim fell to the ground, bleeding and unconscious. The victim was taken to the garage, 

after which defendant Kennard retrieved a .22 rifle and shot the victim three times. Defendant 

Benford left to seek treatment at a hospital. Stitts gave defendant Kennard his gas can, and 

defendant Kennard set the victim on fire. 

 A neighbor, Michael Pokladek, heard a loud sound and went outside where he saw four 

men. It appeared that three of the men were fighting one man. One of the taller men pulled a 

black Glock handgun and fired a shot at the victim. Pokladek did not want to get involved and 

went into his house where he heard additional shots fired. 

 Tanise Page lived with her children, Howard Grandberry, and her cousin Ericka 

Williams, who was defendant Kennard’s girlfriend. On September 12, 2011, defendant Kennard 

entered the home with Stitts and an unknown male. They went into the bathroom and washed up 

for 20 minutes. Later that day, individuals came to the home looking for defendant Kennard. 

Within three days of the offense, Page’s home was firebombed. She went to the police and 

attributed the arson to retaliation against defendant Kennard. In December 2011, Page heard 

defendant Kennard tell someone that what happened to the victim could happen to them, which 

she interpreted as bragging. 

 Nakisha Jenkins, the mother of the victim’s child, was also a close friend of defendant 

Benford. Defendant Benford told Jenkins that he was walking with the victim when two men 

jumped out of a car with guns and attacked them. Defendant Benford was shot in the hands. 

However, defendant Benford told a police officer at the hospital that he was injured when the 

victim tried to shoot him and the two men struggled over the gun. 
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 Defendants presented evidence that Stitts either denied or minimized his role to the police 

and his probation officer, but told other inmates that he committed the murder. Additionally, on 

cross-examination, Stitts admitted that he avoided life imprisonment by entering into the plea 

agreement and now faced a maximum penalty of a five-year prison term for the charge of 

accessory after the fact. Defendant Kennard’s girlfriend, Ericka Williams, offered an alibi that 

she saw defendant Kennard at her home shortly after she heard gunshots. 

II. DOCKET NO. 319301 (DEFENDANT BENFORD) 

A. EVIDENCE OF DEFENDANT BENFORD’S POSSESSION OF A .38 HANDGUN

 Defendant Benford first argues that the trial court abused its discretion by allowing 

Nakisha Jenkins’s testimony that she had previously seen defendant Bedford with a .38 handgun. 

Defendant argues that this evidence was inadmissible under MRE 404(b) because it was 

introduced to show his bad character, and because the prosecution failed to provide notice of its 

intent to introduce the evidence before trial. We review a trial court’s decision to admit evidence 

for an abuse of discretion. People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010). 

 MRE 404(b)(1) prohibits evidence of other crimes, wrongs, or acts “to prove the 

character of a person in order to show action in conformity therewith,” but expressly allows such 

evidence to be admitted for other purposes, such as to show “opportunity” to commit a crime. 

The prosecution is generally required to provide reasonable notice in advance of trial of its intent 

to introduce evidence under this rule, but the trial court may excuse pretrial notice on good cause 

shown. MRE 404(b)(2). 

 At trial, the prosecutor explained that she did not learn of Jenkins’s proposed testimony 

until after the start of trial, and gave notice to the defense as soon as she was aware or in close 

proximity thereafter. The prosecutor’s receipt of this information after trial began constituted 

good cause for failure to provide pretrial notice. Contrary to what defendant Benford argues, the 

evidence was not offered for the purpose of showing that he was a bad person who possessed 

guns. The evidence was offered to show that defendant Benford had access to a type of gun used 

during the offense. “Evidence of a defendant’s possession of a weapon of the kind used in the 

offense with which he is charged is routinely determined by courts to be direct, relevant evidence 

of his commission of that offense.” People v Hall, 433 Mich 573, 580; 447 NW2d 580 (1989). 

The fact that Jenkins relayed defendant Benford’s identification of the gun as a .38, but Stitts 

identified it as a .380, did not render the evidence irrelevant. The varying descriptions created a 

factual issue for the jury. Moreover, expert testimony established that both types of guns were 

capable of firing the caliber of ammunition connected to the offense. Further, the probative 

value of Jenkins’s testimony regarding defendant Benford’s possession and control of a .38 gun, 

a gun capable of firing the caliber class of ammunition found at the scene, was not substantially 

outweighed by the danger of unfair prejudice. See id. at 584. Accordingly, the trial court did not 

abuse its discretion in admitting the evidence. 

B. PROSECUTORIAL MISCONDUCT 

 Defendant Benford contends that the prosecutor improperly vouched for Stitts’s 

credibility during closing argument, and improperly gave unsworn testimony when she explained 
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the plea deal offered to Stitts. Because defendant Benford did not object to the prosecutor’s 

remarks at trial, this issue is not preserved. People v Danto, 294 Mich App 596, 605; 822 NW2d 

600 (2011). We review unpreserved claims of prosecutorial misconduct for plain error affecting 

substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). Error 

requiring reversal will not be found when a curative instruction could have displaced any 

prejudicial effect of the prosecutor’s improper argument. People v Johnigan, 265 Mich App 

463, 467; 696 NW2d 724 (2005). 

 Questions of prosecutorial misconduct are decided on a case-by-case basis, and a 

prosecutor’s remarks must be evaluated in context, including the defense arguments, and their 

relationship to the evidence admitted at trial. Roscoe, 303 Mich App at 648; People v Dobek, 

274 Mich App 58, 64; 732 NW2d 546 (2007). “Prosecutors have discretion on how to argue the 

facts and reasonable inferences arising therefrom, and are not limited to presenting their 

arguments in the blandest terms possible.” People v Meissner, 294 Mich App 438, 456; 812 

NW2d 37 (2011). Although a prosecutor cannot vouch for the credibility of her witnesses, 

People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995), a prosecutor “has a duty to 

disclose promises made to obtain an accomplice’s testimony,” People v Williams, 123 Mich App 

752, 755; 333 NW2d 577 (1983), and a prosecutor’s reference to a plea agreement that requires a 

witness to testify truthfully is not erroneous, provided the prosecutor does not suggest that the 

government has some special knowledge that the witness testified truthfully. Bahoda, 448 Mich 

at 276. 

 In closing argument, the prosecutor showed various exhibits to the jury and argued how 

the photographs corroborated the testimony of the witnesses. When discussing certain 

photographs, the prosecutor raised the issue of Stitts’s credibility. She explained that the 

evidence conflicted regarding Stitts’s participation in the offense and that the credibility of his 

testimony presented an issue for resolution by the jury. She also noted that the testimony of the 

neighbor and Page, as well as the photographs, corroborated Stitts’s testimony, which served as 

the basis for offering him a plea deal. 

 It was the defense theory throughout trial that Stitts was lying and had falsely accused the 

defendants to minimize his involvement in the crimes. Defendants elicited that Stitts sought to 

avoid serving life imprisonment, and that his plea deal was for a maximum prison term of five 

years. The prosecutor was entitled to respond to this theory in closing argument. The prosecutor 

was also entitled to comment on the effect of the promises that were made to obtain Stitts’s 

testimony. The prosecutor outlined the evidence and why those facts supported the plea deal. 

Specifically, she stated that Pokladek had testified that the taller man was the shooter, which was 

consistent with the evidence offered by Stitts. However, the prosecutor also noted that there was 

support for the contention that Stitts was a participant in the plan to kill the victim. Nonetheless, 

the prosecutor properly advised the jury that the credibility of his testimony was for the jury to 

decide. The prosecutor’s argument did not constitute unsworn testimony and did not 

impermissibly vouch for the credibility of Stitts. Simply put, the prosecutor did not engage in 

misconduct by acknowledging the plea deal and the facts of the case that gave rise to the plea 

deal of the least culpable individual, and by acknowledging that the ultimate assessment of 

Stitts’s credibility was for the jury to resolve. Accordingly, the prosecutor’s argument was not 

plain error. 
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 Furthermore, the trial court instructed the jury that the arguments of counsel were not 

evidence, and that it must decide which witnesses to believe. In addition, the court instructed the 

jury specifically with regard to Stitts’s testimony that it should “examine [his] testimony closely 

and be very careful about accepting it,” including whether his plea agreement with the prosecutor 

and his avoidance of a possible penalty of life imprisonment in exchange for his testimony 

affected his credibility or demonstrated his bias or self-interest. Jurors are presumed to follow 

the court’s instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). The trial 

court’s instructions were sufficient to protect defendant Benford’s substantial rights. 

 Because the prosecutor’s conduct was not improper, we also reject defendant Benford’s 

alternative claim that defense counsel was ineffective for not objecting to the prosecutor’s 

remarks. Counsel is not ineffective for failing to raise meritless or futile objections. People v 

Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012). 

C. DEFENDANT BENFORD’S STANDARD 4 BRIEF 

 Defendant Benford raises additional issues in a pro se supplemental brief filed pursuant 

to Supreme Court Administrative Order 2004-6, Standard 4, none of which require appellate 

relief. 

1. TRIAL COURT ERRORS 

 Defendant Benford argues that the trial court erred in admitting evidence, failed to 

maintain control over the calling and sequestration of witnesses, and erroneously instructed the 

jury, and that these errors deprived him of a fair trial. We disagree. 

 The trial court’s decision to admit evidence is reviewed for an abuse of discretion. 

Gursky, 486 Mich at 606. A claim of instructional error involving a question of law is reviewed 

de novo, but the trial court’s conclusion that an instruction applies to the facts of the case is 

reviewed for an abuse of discretion. People v Dupree, 486 Mich 693, 702; 788 NW2d 399 

(2010). “An abuse of discretion occurs when the trial court chooses an outcome falling outside 

the range of principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012). 

 Although defendant Benford argues that the trial court erred by admitting the medical 

records from his May 2011 hospitalization after he was stabbed by the victim, the substance of 

his argument is that it was improper to admit evidence of the prior stabbing incident itself. As 

defendant Benford acknowledges, that evidence was relevant to the issue of motive, because it 

suggested that he had a reason to harm the victim in retaliation for the prior stabbing. Although 

defendant Benford maintains that the prior stabbing was an accident, he fails to identify record 

evidence to support that contention. Jenkins, who identified herself as the mother of the victim’s 

child and defendant Benford’s best friend, testified that defendant Benford and the victim both 

told her about the stabbing. The medical records would have been cumulative to that testimony. 

The admission of mere cumulative evidence is not prejudicial. People v Rodriquez (On 

Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996). To the extent that defendant Benford 

maintains that the prior stabbing was accidental, that argument would not preclude admission of 

this evidence, but only create a factual question for the jury to resolve, and the weight it should 

give the evidence. Accordingly, we find no error. 
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 Next, defendant Benford asserts that the trial court erred in excluding evidence regarding 

the victim’s possession of a gun and evidence that Stitts was under investigation for a murder in 

Grosse Pointe. The record does not support these claims. Croskey was permitted to testify that 

Stitts always carried a gun and made everyone aware of it, while the victim always carried a 

knife. The question and answer that was excluded was whether Croskey was aware that the 

victim was convicted of carrying a concealed weapon. The trial court permitted counsel to 

question Croskey about his knowledge concerning whether the victim possessed a gun. Croskey 

admitted that he could not say for sure if the victim carried a gun, and stated that he never saw 

him with one. In sum, the court permitted the introduction of evidence that the victim carried a 

weapon, but the testimony identified that weapon as a knife, not a gun. With regard to the 

contention that the trial court improperly excluded evidence that Stitts was a person of interest in 

a Grosse Pointe murder investigation, the trial court excluded this evidence because a foundation 

for its admission was never established. When the issue arose, the trial court accepted an offer of 

proof outside the presence of the jury. Stitts testified that he was questioned by Grosse Pointe 

police officers, but denied that he was the subject of their investigation. Defendant Benford 

never attempted to present any other evidence in support of his claim. Therefore, this issue fails 

for lack of record support. 

 The record also fails to support defendant Benford’s contention that the trial court’s 

control of the presentation of witnesses favored the prosecution. The trial court “shall” exercise 

reasonable control over the mode and order of interrogation of witnesses such that the 

presentation ascertains the truth, avoids wasting time, and protects the witnesses. MRE 611(a). 

This rule of evidence affords the trial court broad power to control the interrogation of the 

witnesses, and appellate review is for a clear abuse of discretion. People v Marji, 180 Mich App 

525, 532-533; 447 NW2d 835 (1989). Croskey testified on direct examination, but when trial 

resumed the next day, the prosecutor began to call various police witnesses. Although defendant 

Benford contends that there was no apparent reason for taking the witnesses out of order and not 

immediately resuming with Croskey’s cross-examination, Croskey explained when crossexamination resumed that he had trouble getting to court that morning. The record thus indicates 

that the trial court’s decision to take witnesses out of order was intended to facilitate the jury’s 

time, not to afford any advantage to the prosecution. This decision was within the range of 

reasonable and principled outcomes under the circumstances. Further, defendant Benford fails to 

explain how the order of presentation of witnesses provided the prosecution with a tactical 

advantage. We therefore reject this claim of error. 

 With regard to sequestration, defendant Benford contends that although the trial court 

ordered sequestration of the witnesses, they did not comply with its order and discussed the case. 

Defendant Benford has failed to establish any factual support for this argument. An appellant 

has “the burden of furnishing the reviewing court with a record to verify the factual basis of any 

argument upon which reversal is predicated.” People v Elston, 462 Mich 751, 762; 614 NW2d 

595 (2000). Defendant Benford’s reliance on similarity in the witness’s testimony is insufficient 

to establish that the sequestration order was violated. 

 Defendant Benford also contends that the trial court erred by failing to properly instruct 

the jury on all elements of second-degree murder. The jury instructions must include all 

elements of the charged offense in addition to any material issues, defenses, and theories if 

supported by the evidence. People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005). 
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 M Crim JI 16.5 addresses second-degree murder and provides: 

 (1) [The defendant is charged with the crime of / You may also consider 

the lesser charge of] second-degree murder. To prove this charge, the prosecutor 

must prove each of the following elements beyond a reasonable doubt: 

 (2) First, that the defendant caused the death of [name deceased], that is, 

that [name deceased] died as a result of [state alleged act causing death]. 

 (3) Second, that the defendant had one of these three states of mind: [he / 

she] intended to kill, or [he / she] intended to do great bodily harm to [name 

deceased], or [he / she] knowingly created a very high risk of death or great 

bodily harm knowing that death or such harm would be the likely result of [his / 

her] actions. 

 [(4) Third, that the killing was not justified, excused, or done under 

circumstances that reduce it to a lesser crime.] [Footnotes omitted, emphasis in 

original.] 

The use note following paragraph four states: “Paragraph (4) may be omitted if there is no 

evidence of justification or excuse, and the jury is not being instructed on manslaughter or any 

offense less than manslaughter.” 

 The record discloses that the trial court inquired regarding the evidence of justification, 

excuse, or self-defense that was submitted by the parties. Counsel argued that self-defense was 

available because Pokladek heard a scuffle and went outside. The defense asserted that it was 

possible that the victim was the aggressor, but that the gun was taken from the victim. The 

evidence that the victim carried a knife was also posited as a basis for a self-defense instruction. 

The trial court held that there was insufficient evidence on the record to support a claim of 

deadly force in self-defense, but indicated that it would reconsider that decision if the defense 

could show actions in lawful self-defense. 

 The trial court did not err by failing to submit the issue of justification or excuse to the 

jury. To justify that instruction, that theory of defense must be supported by evidence. McGhee, 

268 Mich App at 606. The defense argument for a plausible justification or excuse was based on 

the theory that Pokladek may have heard the victim firing the weapon as the aggressor, but when 

he went outside, he only witnessed defendants recovering the weapon from the victim. This was 

not a reasonable inference from the evidence. More significantly, if defendants and Stitts had 

recovered the weapon from the victim, they would not be entitled to use deadly force at that 

time. See Dupree, 486 Mich at 709-710; MCL 780.972. Defendant Benford argues that his 

hospital statement to the police regarding wrestling with the victim for the gun provided 

evidence of justification or excuse. However, he merely stated that the victim pulled a gun on 

him, they wrestled, defendant Benford was shot, and he sought help from his girlfriend. 

Defendant Benford never asserted that he shot the victim in self-defense. 

 Furthermore, Stitts’s testimony indicated that the victim took off running and was 

pursued by defendant Kennard, who grabbed the victim, choked him, and knocked his head 

against the pavement, rendering him unconscious. According to Stitts, Kennard then obtained a 
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.22 rifle and shot the victim three times. The evidence did not support the existence of any 

possible excuse or justification for the killing to require the instruction in paragraph (4) of M 

Crim JI 16.5. Accordingly, the trial court did not err by failing to give that instruction. 

2. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant Benford also raises several claims of ineffective assistance of counsel. 

Because these claims were not raised in a motion for a new trial or request for a Ginther2

hearing, our review is limited to errors apparent from the record. People v Payne, 285 Mich App 

181, 188; 774 NW2d 714 (2009). “Whether a defendant received ineffective assistance of trial 

counsel presents a mixed question of fact and constitutional law.” People v Armstrong, 490 

Mich 281, 289; 806 NW2d 676 (2011). “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). “There is a 

presumption that defense counsel was effective, and a defendant must overcome the strong 

presumption that counsel’s performance was sound trial strategy.” People v Johnson, 293 Mich 

App 79, 90; 808 NW2d 815 (2011). 

 Defendant Benford argues that the admission of codefendant Kennard’s custodial 

statement at their joint trial violated Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 

2d 476 (1968), and defense counsel was ineffective for failing to object to the admission of that 

statement. The record discloses that within days after the offense, defendant Kennard gave a 

statement to the police in which he stated that he was with the victim and defendant Benford 

earlier in the evening, but left and went into a house with another man. Later that evening, 

Kennard heard gunshots and, about 15 or 20 minutes later, defendant Benford appeared and said 

he had been shot. The trial court instructed the jury that defendant Kennard’s statement was 

admissible only against defendant Kennard. 

 A Bruton violation occurs “when a codefendant’s incriminating confession is admitted at 

their joint trial, even if the jury is instructed to limit consideration of the confession only against 

the codefendant.” People v Etheridge, 196 Mich App 43, 47; 492 NW2d 490 (1992), citing 

Bruton, 391 US 123. Here, defendant Kennard did not confess any involvement by himself or 

defendant Benford in the victim’s death. Although defendant Kennard’s statement 

acknowledged that defendant Benford was with the victim when defendant Kennard left them, 

defendant Kennard did not claim any knowledge of what happened to the victim or indicate that 

defendant Benford was responsible for the victim’s death. The fact that the victim and defendant 

Benford were together when defendant Kennard left them was not a confession or an accusation. 

Accordingly, a Bruton violation did not occur. Furthermore, the information in defendant 

Kennard’s statement that defendant Benford and the victim were together, and that defendant 

Benford later appeared and said he had been shot, was consistent with the information that 

defendant Benford had reported in his hospital statement to the police, which was admitted at 

trial against defendant Benford. Because defendant Kennard did not purport to have any 

 

2 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). 
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knowledge about what happened to the victim, and the information in his statement was 

consistent with the information supplied in defendant Benford’s separate statement, it was not 

objectively unreasonable for defense counsel to decline to object to the admission of defendant 

Kennard’s statement at their joint trial. Accordingly, this issue does not support a claim of 

ineffective assistance of counsel. 

 Defendant Benford also contends that trial counsel was ineffective for failing to move for 

separate trials. He argues that he was prejudiced by the joint trial because defendant Kennard’s 

counsel explored defendant Benford’s motive to harm the victim in light of the prior stabbing 

incident that occurred between them. “Severance is mandated under MCR 6.121(C) only when a 

defendant provides the court with a supporting affidavit, or makes 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). To warrant severance, the defenses must be mutually 

exclusive or irreconcilable. Id. at 349. Incidental spillover prejudice is generally inevitable and 

insufficient to warrant severance. Id. Rather, the tension between the defenses must cause a jury 

to believe one defendant at the expense of another. Id. 

 The fact that defendant Kennard acknowledged the prior incident between the victim and 

defendant Benford does not rise to the level of mutually exclusive or irreconcilable defenses. 

The prosecution similarly argued that the prior stabbing incident established a motive for 

defendant Benford to harm the victim. The prosecution would have been able to argue that 

motive at either a joint or separate trial. At trial, defendant Kennard offered his girlfriend, 

Williams, as an alibi witness. Defendant Kennard’s alibi defense did not require the jury to 

believe one defendant at the expense of the other. Therefore, defense counsel was not ineffective 

for failing to move for separate trials. Any motion would have been futile. Eisen, 296 Mich App 

at 329. 

 Lastly, defendant Benford argues that trial counsel was ineffective for failing to object to 

the “improper sequestration of the witnesses.” As previously indicated, the record does not 

establish any violation of the court’s sequestration order. Accordingly, defendant Benford 

cannot establish that defense counsel was ineffective for failing to object. Id. 

III. DOCKET NO. 319308 (DEFENDANT KENNARD) 

A. PREARREST DELAY 

 Defendant Kennard first argues that the trial court erred in denying his motion to dismiss 

based on the delay between the commission of the offense on September 12, 2011, and his arrest 

on February 22, 2013. We disagree. The trial court’s ruling on a motion to dismiss is reviewed 

for an abuse of discretion. People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012). 

Constitutional issues are reviewed de novo. People v Patton, 285 Mich App 229, 236; 775 

NW2d 610 (2009). 

 Prejudice resulting from delay between the commission of an offense and an arrest may 

violate a defendant’s right to due process. Id. To obtain dismissal premised on prearrest delay, 

there must be actual and substantial prejudice to the defendant’s ability to receive a fair trial, 
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coupled with the prosecution’s intent to gain a tactical advantage. Id. at 237. Actual and 

substantial prejudice, not merely speculative prejudice, must be shown by the defendant. People 

v Adams, 232 Mich App 128, 134-135; 591 NW2d 44 (1998). Substantial prejudice means the 

defendant’s ability to defend against the state’s charges was impaired to such an extent that the 

outcome of the criminal proceeding was likely affected. Id. “If a defendant demonstrates 

prejudice, the prosecution must then persuade the court that the reason for the delay sufficiently 

justified whatever prejudice resulted.” Patton, 285 Mich App at 237. The court’s evaluation of 

the delay may consider the explanation for it, whether it was deliberate, and whether undue 

prejudice attached to the defendant. People v Cain, 238 Mich App 95, 109; 605 NW2d 28 

(1999). 

 In the present case, defendant Kennard asserts that he was prejudiced by the loss of 

memories and witnesses, including “Tone,” a witness who allegedly was outside at the time of 

the gunshots. However, general allegations that the memories of witnesses have suffered does 

not sufficiently demonstrate prejudice. People v Musser, 259 Mich App 215, 220; 673 NW2d 

800 (2003). Further, there is no indication that defendant Kennard was unable to locate “Tone” 

because of the delay before his charge and arrest. Pokladek testified that when the police 

canvased the area, Tone called him to the door and said he did not want to be interviewed by the 

police. Even if Tone was outside at the time of the gunshots, there is no basis for concluding that 

he would have provided testimony that was not cumulative to that of Pokladek. Defendant 

Kennard also observes that DNA testing was completed in November 2012, and the charges 

were not filed until February 2013, but there is no information to indicate that this three-month 

delay provided the prosecution with a tactical advantage. Defendant Kennard’s generalized and 

unsupported assertions of prejudice and the existence of a tactical advantage to the prosecution 

are insufficient to establish a due process violation. Accordingly, the trial court did not abuse its 

discretion by denying defendant Kennard’s motion to dismiss with respect to this issue. 

B. APPOINTMENT OF DEFENSE EXPERTS 

 Defendant Kennard next argues that the trial court erred by denying his requests for 

appointment of a defense expert to examine evidence or to conduct additional DNA and 

fingerprint testing, thereby depriving him of his constitutional right to present a defense. We 

disagree. 

 Defendant Kennard filed a motion for appointment of an independent forensic pathologist 

to review the medical and autopsy records, and for DNA testing and fingerprint analysis of a 

firearm grip, knife, and gym shoes. Defendant Kennard wanted an expert to analyze the medical 

examiner’s conclusions regarding the angles of the bullets, the position of the shooter, and the 

position of the victim. The trial court denied the motion, without prejudice, ruling that defense 

counsel could interview the medical examiner regarding these issues and re-file the motion with 

additional information to demonstrate the necessity for appointment of an expert. With regard to 

the DNA and fingerprint evidence, the trial court also denied the motion, without prejudice, to 

allow defense counsel to determine whether the items were even suitable for testing. 

 We review a trial court’s decision to grant or deny an indigent defendant’s motion for the 

appointment of an expert witness for an abuse of discretion. People v McDonald, 303 Mich App 

424, 434; 844 NW2d 168 (2013). An abuse of discretion occurs when the decision results in an 
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outcome that falls outside the range of reasonable and principled outcomes. Id. Whether a 

defendant suffered a deprivation of his constitutional right to present a defense is reviewed de 

novo. People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). 

 MCL 775.15 authorizes payment of funds for an expert witness when the defendant 

makes a showing that the witness is material and necessary to safely proceed to trial. People v 

Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). To warrant appointment of an 

expert, a defendant must demonstrate a nexus between the facts of the case and the need for the 

expert. People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). The mere 

possibility of assistance from the requested expert is insufficient to warrant an appointment. Id. 

“Without an indication that expert testimony would likely benefit the defense, a trial court does 

not abuse its discretion in denying a defendant’s motion for appointment of an expert witness.” 

Carnicom, 272 Mich App at 617. 

 “A defendant has a constitutionally guaranteed right to present a defense, which includes 

the right to call witnesses. US Const, Am VI; Const 1963, art 1, § 20[.]” People v Yost, 278 

Mich App 341, 379; 749 NW2d 753 (2008). However, as explained in People v Orlewicz, 293 

Mich App 96, 101-102; 809 NW2d 194 (2011): 

 The right to present a defense is not absolute or unfettered. A trial court 

may exclude evidence if its probative value is outweighed by factors such as 

unfair prejudice, confusion of the issues, or potential to mislead the jury. 

Therefore, a court may exclude evidence that is repetitive, only marginally 

relevant, or poses an undue risk of harassment, prejudice, or confusion of the 

issues. Similarly, defendants are entitled to present witnesses in their defense, but 

again that right is not absolute. To the contrary, it requires a showing that the 

witness’ testimony would be both material and favorable to the defense. The 

underlying question is whether the proffered evidence or testimony is relevant and 

material, or unfairly prejudicial. [Citations and internal quotation marks omitted.] 

 First, defendant Kennard has not established that he was deprived of his right to present a 

defense. The trial court did not preclude defendant Kennard from pursuing a particular line of 

defense. Further, it did not outright deny his request for appointment of an independent 

pathologist or for DNA and fingerprint testing, but only required him to demonstrate a need for 

appointment of an expert and additional testing. Because the court did not preclude defendant 

Kennard from further investigating or pursuing these matters, there is no merit to his argument 

that the court deprived him of his right to present a defense. 

 The trial court also did not abuse its discretion by denying defendant Kennard’s request 

for appointment of an expert and for additional evidentiary testing. The trial court denied the 

requests without prejudice, pending counsel’s acquisition of additional information regarding the 

need for an expert and whether the requested evidentiary materials were available and suitable 

for testing. Although defense counsel had posited that an independent pathology expert could 

analyze the medical examiner’s conclusions regarding the angles of the bullets, the position of 

the shooter, and the position of the victim, the medical examiner testified at trial that she could 

not identify the position of the victim’s body and the shooter’s distance at the time of the 

shooting. Moreover, the trial court did not foreclose the possibility of an appointment of an 
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expert if defendant Kennard could establish a need for an expert, but defendant Kennard never 

refiled his motion with a renewed showing of need. 

 Similarly, with regard to the DNA and fingerprint testing, the trial court noted that the 

gun grip was tested for DNA, but seemingly not the fingerprint evidence. Before simply 

ordering additional testing, the court sought confirmation that any testing was likely to yield 

results. Defense counsel agreed to make additional inquiry, but there is no indication that he 

further pursued this issue. This additional inquiry was necessary to establish a nexus between 

the information sought, the facts, and the need for further expert testing. McDade, 301 Mich 

App at 356. Because defense counsel failed to establish the requisite nexus, the trial court did 

not abuse its discretion in denying defendant Kennard’s motion.

C. SEPARATE TRIALS OR SEPARATE JURIES 

 Defendant Kennard next argues that the trial court erred in denying his motion for a 

separate trial, or separate juries. We disagree. The trial court’s ruling on a motion to sever trials 

is reviewed for an abuse of discretion. People v Williams, 483 Mich 226, 234 n 6; 769 NW2d 

605 (2009). 

 A defendant does not have a right to a separate trial, and strong public policy favors joint 

trials because it serves the interests of justice, judicial economy, and administration. People v 

Harris, 201 Mich App 147, 152; 505 NW2d 889 (1993). MCR 6.121(C) provides that “[o]n a 

defendant’s motion, the court must sever the trial of defendants on related offenses on a showing 

that severance is necessary to avoid prejudice to substantial rights of the defendant.” “Severance 

is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting 

affidavit, or makes 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.” Hana, 447 Mich at 346. 

 Defendant Kennard argues that severance was necessary because of the differing defense 

theories that he and defendant Benford presented. To warrant severance, the defenses must be 

mutually exclusive or irreconcilable. Id. at 349. Incidental spillover prejudice is generally 

inevitable and insufficient to warrant severance. Rather, the tension between the defenses must 

cause a jury to believe one defendant at the expense of another. Id. Although defendants 

Kennard and Benford presented different defenses at trial, they were not mutually exclusive or 

irreconcilable. Defendant Kennard presented an alibi defense. Defendant Benford gave a 

statement in which he claimed that the victim threatened him with a gun, which led to a struggle 

over the gun during which defendant Benford was shot, but defendant Benford denied 

participating in the shooting death of the victim. The jury was not required to believe one 

defendant at the expense of the other. Moreover, both defendants argued that the real perpetrator 

was Stitts, whose testimony implicating each of them in the offense was not credible because it 

was motivated by his desire to avoid a life sentence. 

 Defendant Kennard also cites the fact that defendant Benford had a motive to kill the 

victim in light of the prior stabbing incident, whereas the evidence against him was weak and 

inconsistent. The fact that the jury had a basis for finding that defendant Benford had a reason to 

harm the victim, but lacked an apparent motive for defendant Kennard’s participation in the 
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offense, does not satisfy the criteria for severance of trials and does not demonstrate the 

necessary prejudice to warrant reversal on appeal. Id. at 346-349. Accordingly, the trial court 

did not abuse its discretion in denying defendant Kennard’s motion for separate trials or a 

separate jury. 

D. ADMISSION OF PAGE’S PRELIMINARY EXAMINATION TESTIMONY 

 Defendant Kennard argues that the trial court erred in admitting Tanise Page’s 

preliminary examination testimony because (1) the prosecutor failed to exercise due diligence to 

locate and produce Page for trial, and (2) the admission of Page’s preliminary examination 

testimony violated his constitutional right of confrontation. We disagree. The trial court’s 

determination regarding due diligence is reviewed for an abuse of discretion. People v Eccles, 

260 Mich App 379, 389; 677 NW2d 76 (2004). However, factual findings underlying the trial 

court’s due diligence determination will not be reversed unless clearly erroneous. People v 

Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). 

1. DUE DILIGENCE 

 When a prosecutor endorses a witness pursuant to MCL 767.40a(3), he is obligated to 

exercise due diligence to produce that witness at trial. Eccles, 260 Mich App at 388. “A 

prosecutor who fails to produce an endorsed witness may show that the witness could not be 

produced despite the exercise of due diligence.” Id. Due diligence requires an attempt to do 

everything reasonable, but not everything possible, to secure the presence of the witness. People 

v Cummings, 171 Mich App 577, 585; 430 NW2d 790 (1988). “The test for due diligence is one 

of reasonableness, i.e., whether diligent good-faith efforts were made to procure the testimony, 

not whether more stringent efforts would have produced it.” People v James (After Remand), 

192 Mich App 568, 571; 481 NW2d 715 (1992). Due diligence considers not only the efforts 

expended, but also the timing of those efforts. Id. In James, this Court held that failure to 

maintain contact with a witness for 31⁄2 years between the preliminary examination and the start 

of trial, and the mere mailing of a subpoena to the witness three weeks before trial did not 

constitute due diligence. Id. at 571-572. However, in People v Watkins, 209 Mich App 1, 4; 530 

NW2d 111 (1995), this Court concluded that due diligence was established despite a four-year 

lapse between the defendant’s first trial and the reversal of the defendant’s convictions when the 

witness willingly appeared at the first trial and efforts to locate the witness were exhaustive and 

began one month before the trial. 

 The record discloses that Page did not voluntarily appear at the preliminary examination. 

After a bench warrant was issued, Investigator Don Olsen was able to pick her up and bring her 

to the preliminary exam. The exam was held in March 2013, and the trial began in September 

2013. During that six-month period, Page moved from her former address, but did not notify the 

prosecutor, the secretary of state, or an individual caring for her child. She was involved with 

the Department of Human Services because of a child protection proceeding, but she did not 

maintain agency contact. There had been no activity with her bridge card since August 12, 2013, 

and there was no current contact information. Olsen was unable to obtain a new address for Page 

from the post office or the new occupants of Page’s former residence. The address on her 

driver’s license was a boarded up, vacant home. Olsen contacted a caregiver for one of Page’s 

children and obtained Page’s phone number, but no one answered that phone and Olsen was 
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unable to leave a message. Consequently, Olsen also left word with Page’s family members that 

he was trying to reach her to bring her to court for trial. He also checked police databases and 

enlisted the assistance of federal marshals to aid in his search. The trial court did not abuse its 

discretion in determining that diligent efforts were made to locate Page for trial, and that she 

could not be produced despite the exercise of due diligence. 

2. RIGHT OF CONFRONTATION 

 Defendant Kennard also argues that the admission of Page’s preliminary examination 

testimony in lieu of her live testimony at trial violated his constitutional right of confrontation. 

We disagree. Whether the admission of evidence violates a defendant’s constitutional right of 

confrontation presents a question of law, which is reviewed de novo. People v Dinardo, 290 

Mich App 280, 287; 801 NW2d 73 (2010). 

 “The Confrontation Clause of the Sixth Amendment bars the admission of ‘testimonial’ 

statements of a witness who did not appear at trial, unless the witness was unavailable to testify 

and the defendant had a prior opportunity to cross-examine the witness.” People v Walker (On 

Remand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006). MRE 804(b)(1) incorporates these 

constitutional requirements. The rule provides that testimony given as a witness at another 

hearing of the same or a different proceeding is admissible “if the party against whom the 

testimony is now offered had an opportunity and similar motive to develop the testimony by 

direct, cross, or redirect examination.” “Whether a party had a similar motive to develop the 

testimony depends on the similarity of the issues for which the testimony was presented at each 

proceeding.” People v Farquharson, 274 Mich App 268, 275; 731 NW2d 797 (2007). Factors 

to consider to determine whether a party had a similar motive to examine a witness at the prior 

proceeding include: (1) whether the prior proceeding involved an interest of substantially similar 

intensity to prove or disprove; (2) the nature of the two proceedings, including the issues and the 

applicable burdens of proof; and (3) whether cross-examination was available and exercised. Id. 

at 278. 

 Notwithstanding the different burdens of proof at a preliminary examination and a trial, 

both proceedings involved an issue of substantially similar intensity, namely, defendant 

Kennard’s involvement in the victim’s homicide. Defendant Kennard had a similar motive to 

develop the testimony at the prior proceeding, and cross-examination was both available and 

exercised extensively. Extensive cross-examination at the preliminary examination provides 

“opportunity” and “similar motive” for admission of former testimony. See People v Meredith, 

459 Mich 62, 66-67; 586 NW2d 538 (1998). The trial court also noted that defense counsel had 

the opportunity to review materials regarding Page’s participation in an investigative subpoena 

proceeding in order to question her effectively. Although defendant Kennard asserts that the 

cross-examination was deficient, he fails to identify any line of inquiry that would have been 

pursued if Page had appeared at trial. Defendant Kennard complains that the admission of 

Page’s preliminary examination testimony did not allow the jury to view Page’s demeanor at the 

preliminary examination. However, the Confrontation Clause only guarantees a defendant an 

opportunity for effective cross-examination. It does not require “cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish.” United States v 

Owens, 484 US 554, 559; 108 S Ct 838; 98 L Ed 2d 951 (1988). Under the circumstances, the 
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trial court did not err by allowing Page’s preliminary examination testimony to be read to the 

jury. MRE 804(b)(1); Dinardo, 290 Mich App at 287. 

E. CUMULATIVE ERRORS 

 Defendant Kennard argues that reversal is required because of the cumulative effect of 

many errors in this case. Any one error standing alone may not justify reversal, but the 

cumulative effect of several errors can cause sufficient prejudice to warrant reversal. People v 

Gaines, 306 Mich App 289, 321-322; 856 NW2d 222 (2014). To prevail, the defendant must 

establish actual errors at trial, and the aggregate of the actual errors must lead to unfair prejudice. 

See People v LeBlanc, 465 Mich 575, 591 n 12; 640 NW2d 246 (2002). Because defendant 

Kennard has failed to demonstrate aggregate errors that cumulatively deprived him of fair trial, 

this claim of error does not warrant appellate relief. 

F. DEFENDANT KENNARD’S STANDARD 4 BRIEF 

 Defendant Kennard also raises additional issues in a pro se supplemental brief filed 

pursuant to Supreme Court Administrative Order 2004-6, Standard 4, none of which require 

appellate relief. 

1. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant Kennard argues that trial counsel was ineffective for failing to impeach Page 

with her inconsistent investigative subpoena testimony. He also contends that counsel erred by 

failing to recall Stitts after Karen White, a probation officer, offered testimony regarding a prior 

statement she had taken from Stitts. Defendant Kennard argues that counsel should have 

recalled Stitts to confront him with contradictions in his prior statements. Because defendant 

Kennard did not raise these claims in a motion for a new trial or request a Ginther hearing in the 

trial court, our review is limited to errors apparent from the record. Payne, 285 Mich App at 

188. 

 Although defendant Kennard complains that defense counsel failed to utilize Page’s prior 

investigative interview statements to impeach her testimony, the record discloses that defense 

counsel had the benefit of the investigative interview at the preliminary examination and did 

unravel inconsistencies in Page’s testimony at the preliminary examination. Further, the 

prosecutor also explored inconsistencies in Page’s testimony at the preliminary examination, and 

those inconsistencies were made apparent to the jury when Page’s preliminary examination 

testimony was read at trial. Thus, the record does not support this claim of ineffective assistance 

of counsel. 

 We also reject defendant Kennard’s argument that counsel was ineffective for failing to 

recall Stitts after Probation Officer White testified. White testified that Stitts gave a statement 

that omitted witnessing the victim’s death and providing the gasoline. White’s testimony served 

the purpose of revealing inconsistencies in Stitts’s various accounts of the level of his 

participation in the events surrounding the victim’s death. It was not necessary to recall Stitts 

merely for the purpose of confronting him with that apparent inconsistency. Moreover, counsel 

fully explored the many credibility problems with Stitt’s testimony. Counsel established 

conflicts in the evidence regarding the extent of Stitts’s participation in the events surrounding 
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the victim’s death, inconsistencies in his different accounts of the events, and elicited that he was 

charged with the victim’s murder, but entered into a plea agreement to a reduced charge of 

accessory after the fact that allowed him to avoid a penalty of life imprisonment. Stitts’s motive 

to lie was fully disclosed and explored at trial. The fact that counsel did not recall Stitts 

following White’s testimony did not deprive defendant Kennard of a substantial defense. People 

v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). 

2. PROSECUTORIAL MISCONDUCT 

 Defendant Kennard argues that a new trial is required because of the prosecutor’s 

misconduct in knowingly presenting Page’s false testimony and in coercing Michael Pokladek’s 

testimony. Neither of these claims were raised at trial. Therefore, they are unpreserved and our 

review is limited to plain error affecting substantial rights. Roscoe, 303 Mich App at 648. 

 Prosecutors are constitutionally obligated to report to the trial court and the defense when 

government witnesses lie under oath. People v Herndon, 246 Mich App 371, 417; 633 NW2d 

376 (2001). A prosecutor may not knowingly use false testimony to obtain a conviction, and 

must correct false evidence when it arises. Id. Due process requires the prosecutor to correct the 

false testimony even when it pertains only to the credibility of the individual witness. People v 

Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986). But conflicts in a sworn statement are 

insufficient to meet the burden of establishing perjury, People v Kozyra, 219 Mich App 422, 429; 

556 NW2d 512 (1996), and a conflict between a witness’s trial testimony and earlier statements 

does not establish that the prosecutor knowingly presented perjured testimony. People v Parker, 

230 Mich App 677, 690; 584 NW2d 753 (1998). A claim that the prosecutor knowingly 

presented perjurious testimony is not supported when the prosecutor does not attempt to conceal 

the contradictions and the defense is given ample opportunity to use the prior statements to 

impeach the credibility of the witness. Id. 

 Contrary to defendant Kennard’s assertions, mere conflicts between Page’s trial 

testimony and her earlier statements do not establish that the prosecutor knowingly presented 

false or perjured testimony. Moreover, the conflicts were not concealed by the prosecutor, but 

rather were revealed and explored during her testimony. Accordingly, the record does not 

support defendant Kennard’s assertion that the prosecutor knowingly used false testimony to 

obtain his conviction. 

 Defendant Kennard relies on an alleged “affidavit” submitted by Michael Pokladek to 

support his argument that the prosecutor improperly coerced Pokladek’s testimony. Although 

Pokladek’s statement is labeled an affidavit, it is not notarized and, therefore, is invalid. Detroit 

Leasing Co v Detroit, 269 Mich App 233, 236; 713 NW2d 269 (2005). Further, the document 

mostly contains allegations of conspiracy and forgery involving matters unrelated to defendant 

Kennard’s appeal. The document contains one sentence pertinent to this case, which states that 

Pokladek’s testimony was “given under extreme duress under threats of ‘more jail time’ and 

‘contempt of court’ and were obviously not given of my own free will.” The document does not 

identify the sources of any threats, and it does not allege that any of Pokladek’s trial testimony 

was not true. It also does not identify any other material testimony that he could have offered. 

Considering that Pokladek’s purported “affidavit” is not sworn, that his reluctance to testify and 

displeasure at not being offered a deal by the prosecutor for his testimony was disclosed at trial, 
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that he did not allege that his trial testimony was not true, and he did not identify any other 

material testimony that he could have offered, this claim of prosecutorial misconduct does not 

entitle defendant Kennard to appellate relief. 

3. EXCLUSION OF EVIDENCE 

 Defendant Kennard also argues that the trial court erred by prohibiting cross-examination 

regarding Stitts’s involvement in an unrelated Grosse Pointe murder, and by excluding evidence 

that Stitts routinely carried a gun. We disagree. We review a trial court’s decision to exclude 

evidence for an abuse of discretion. Gursky, 486 Mich at 606. 

 On cross-examination, Stitts was questioned regarding the fact that he was initially 

charged with murder and facing life imprisonment, but pleaded guilty to accessory after the fact, 

a crime with a five-year maximum prison term. Stitts also testified that he had charges pending 

in other courts. When asked about a case in Grosse Pointe, Stitts responded that there was 

“nothing yet.” Thereafter, counsel sought to question Stitts about whether he was charged or 

arrested for a Grosse Pointe murder. Outside the presence of the jury, Stitts testified that he had 

been questioned about the case, but denied that he had been charged or was a suspect. Stitts also 

denied being told by anyone that defendant Kennard had given a statement or information 

implicating Stitts in that case. The trial court thereafter prohibited any additional questioning on 

this subject. Defendant Kennard argues that the excluded testimony was relevant Stitts’s 

credibility and bias as a witness, and exclusion of this testimony violated his constitutional right 

of confrontation. We disagree. 

 Relevant evidence is defined as “evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.” MRE 401. Michigan takes a broad approach regarding 

cross-examination regarding witness bias. People v Layher, 464 Mich 756, 768; 631 NW2d 281 

(2001). Bias refers to the relationship between a party and a witness that might lead the witness 

to slant testimony. Id. at 763 (citation omitted). “[E]vidence of bias arising from past arrest 

without conviction is admissible if relevant, as long as its probative value is not substantially 

outweighed by the danger of unfair prejudice.” Id. at 768. “A limitation on cross-examination 

that prevents a defendant from placing before the jury facts from which bias, prejudice, or lack of 

credibility of a prosecution witness might be inferred constitutes denial of the constitutional right 

of confrontation.” People v Kelly, 231 Mich App 627, 644; 588 NW2d 480 (1998). But there is 

no right to cross-examine on irrelevant issues. People v Hackett, 421 Mich 338, 344; 365 NW2d 

120 (1984). 

 Defendants sought to demonstrate that Stitts was biased against defendant Kennard for 

implicating Stitts in a Grosse Pointe homicide. Such evidence would have supported an 

argument that Stitts had a reason to be biased against defendant Kennard, and thus would be 

relevant to Stitts’s credibility. The trial court afforded defendant Kennard an opportunity to 

question Stitts on a separate record to establish a foundation for the desired testimony, but Stitts 

denied that he was a suspect in the Grosse Pointe case or being told by anyone that defendant 

Kennard had implicated him in that case, and defendant Kennard did not present any contrary 

evidence showing otherwise. Because defendant Kennard failed to establish a foundation for 
-18- 

interjecting this collateral matter for the purpose of showing Stitts’s bias against defendants, the 

trial court did not abuse its discretion in excluding the testimony. 

 Additionally, the record does not support defendant Kennard’s contention that the trial 

court excluded evidence regarding Stitts’s possession of a gun. Upon inquiry by counsel for 

defendant Kennard, Croskey testified as follows: 

Q. Mr. Croskey, you’ve been around Mr. Stitts on multiple occasions, 

correct? 

A. In the past? 

Q. Yes. 

A. Yes. 

Q. You’ve known him for years? 

A. Yes. 

Q. He’s been to your house many times? 

A. Yes. 

Q. And you’ve known Mr. Stitts as always carrying a gun? 

A. Yes. 

* * * 

Q. And in fact, didn’t you say that he was the kind of person who let you 

know that he had a gun on him? 

A. Yes. 

Thus, defendant Kennard’s contention that this evidence was excluded is not supported by the 

record. 

4. INCONSISTENT VERDICT 

 Defendant Kennard lastly argues that a new trial is required because the jury’s verdicts 

finding him guilty of first-degree premediated murder, but acquitting him of the firearm charges, 

are inconsistent. We disagree. 

 It is well established that, within a single jury trial, inconsistent verdicts are permissible 

and do not require reversal. People v Wilson, 496 Mich 91, 100-101; 852 NW2d 134 (2014). 

“[J]uries are not held to any rules of logic nor are they required to explain their decisions.” Id. at 

101 (citation omitted). The defendant bears the burden of establishing that inconsistency in a 

jury’s verdicts resulted from confusion, misunderstood instructions, or that the jury engaged in 
-19- 

an impermissible compromise. People v Putman, 309 Mich App 240, 251; ___ NW2d ___ 

(2015). 

 Here, defendant Kennard acknowledges that he cannot demonstrate juror confusion or 

impermissible compromise. Moreover, the jury’s verdicts are not inherently inconsistent. 

Evidence indicated that the victim was attacked by three men. It is possible that the jury could 

not determine the identity of the shooter, but find that defendant Kennard was guilty of aiding 

and abetting first-degree premediated murder. Accordingly, this issue does not entitle defendant 

Kennard to appellate relief. 

 Affirmed. 

/s/ Karen M. Fort Hood 

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly