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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 13, 2017

v No. 331305 Ingham Circuit Court TERREON TRASHUN SMITH, LC No. 15-000090-FC

Defendant-Appellant.

Before: S WARTZLE , P.J., and S AAD and O’C ONNELL , JJ.

P ER C URIAM

. Defendant, Terreon Smith, appeals by right his convictions of first-degree murder, MCL 750.316 (open murder), two counts of assault with intent to com mit murder, MCL 750.83, carrying a concealed weapon (CCW), MCL 750.227, and possessing a firearm during the commission of a felony (fel ony-firearm), MCL 750.227b. The tri al court sentenced him as a third-offense habitual offender, MCL 769.11, to serve concurren t terms of life in prison without parole for his first-degree murder conviction, 171⁄2 to 50 years’ imprisonment for each of his assault convictions, and 38 to 60 months’ imprisonment for his CCW conviction, as well as a consecutive term of two years’ i mprisonment for his felony-fire arm conviction. We affirm.

I. FACTS

Terreon’s convictions resu lted from a drive-by shooting.

Gary Brown testified that he and Terreon had a “beef” that beg an about three weeks before the shooting. During the first altercation between Brow n and Terreon, Terreon and Brown got into a fist fight. T erreon was with a group. Brown testified that he heard someone ask for a gun, Brown ran from the fight, and Brown then heard g unshots. The second altercation between the men occurred the nig ht of the shooting. Brown test ified that he was helping L.C. Wilson 1 provide security for a teen party at a Lansing home. LC testi fied that the homeowner hosted an adult party after the teen party. Terreon arrived at the party with Antwan Williams.

1 L.C. Wilson was not related to Levon Wilson.-2- When Brown saw Terreon approach, Brown drew a gun, pointed it a t Terreon, and told him to leave. Terreon and Antwa n left the party.

Chris Jones testified that he a nd his friend Merza Mizori enco untered Terreon, Antwan, Daryl Smith, and a man he did not know, at a Lansing area gas s tation. Jones saw the men get out of a truck. The man Jones did not know had a silver or chr ome handgun with black grips. Terreon and Jones spoke. Mizori testified that Terreon asked h im if he knew where Brown was.

Jones testified that he learned of the party at the gas statio n, and then he and Mizori went to the party. Jones testified that they arrived, they turned around in a nearby driveway attempting to find a place to par k, and he saw a truck pull ont o the street. Someone in the truck began shooting from the back driver’s side window. Jones did n ot see who was shooting, but he recognized the gun and the truck from the gas station. Mizori testified that he saw Terreon shooting at Brown, who was outside the house where the party wa s, from the driver’s side of the vehicle. Other witnesses testif ied about the vehicle and the g unfire, but none testified to seeing the shooter. Levon Wilson was shot and killed, and Macon Kimbl e was shot through the thigh.

Roderigious Williams testified that he spoke with Terreon two or three days after the shooting. Roderigious explained that Terreon, Antwan, and Davi d Arrington arrived at Roderigious’s house. While Roderigious and Terreon were alone on the porch, Roderigious asked Terreon what was going on. Terreon eventually responded, “I f***ed up.” Terreon explained that “the boy wasn’t supposed to be there . . . .”

II. DETECTIVE TESTIMONY

Terreon argues that Lansing Police Department Detective Lee Mc Callister improperly commented on the credibility of witnesses, defense counsel’s fa ilure to object constituted ineffective assistance of counsel , and the trial court erred in admitting the testimony. Because we conclude that Detective McCallister did not improperly comme nt on the credibility of any specific witness, we disagree.

These issues are unpreserved. See People v McCrady , 244 Mich App 27, 29-30; 624 NW2d 761 (2000). Therefore, we review the issues for plain err or. See People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). Plain error occurs when th ere is (1) “error” (2) that was “clear or obvious” and (3) “affected substantial rights.” Id . A defendant’s substantial rights are affected when he is prejudiced such that the “error affected th e outcome of the lower court proceedings.” Id

. Further, we will only reverse “when the plain, forfeited error resulted in the conviction of an actually innocen t defendant” or “seriously aff ected the fairness, integrity or public reputation of judicial proceedings.” Id . at 763-764 (internal quotations, alterations, and citations omitted). Finally, b ecause the trial court did not h old an evidentiary hearing regarding the effectiveness of trial counsel, our review of the ineffecti ve assistance of counsel claim “is limited to mistakes apparent from the record.” People v Heft , 299 Mich App 69, 80; 829 NW2d 266 (2012).

“A criminal defendant has the fundamental right to effective as sistance of counsel.” Id .; see US Const, Am VI; Const 1963, art 1, § 20. A defendant rece ives ineffective assistance of counsel if (1) defense counsel’s performance fell below an obje ctive standard of reasonableness-3- and (2) there is a reasonable pr obability that counsel’s defici ent performance prejudiced the defendant. Strickland v Washington , 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

A police officer’s opinion testimony is admissible as a lay op inion, MRE 701, if the officer bases his or her opinion o n direct perceptions rather t han on a technical or scientific analysis. See People v McLaughlin , 258 Mich App 635, 657-658; 672 NW2d 860 (2003). Proper lay testimony includes testimony about general police pr ocedure. People v Bahoda , 448 Mich 261, 281-282; 531 NW2d 659 (1995). However, in doing so, the officer may not indicate a belief that a witness testified truthfully, id ., indicate a belief that a w itness’s story was verified, id
., or comment on or provide an opi nion about the credibility of ot her witnesses, People v Buckey , 424 Mich 1, 17; 378 NW2d 432 (1985). R ather, jurors must eva luate witness credibility. People v Musser , 494 Mich 337, 348-349; 835 NW2d 319 (2013).

In this case, Detective McCallister testified that he was part of the police department’s cold case homicide squad. He stated that the shooting occurred in July 2012, other detectives were assigned to the case, the l ead detective “was a member of the Michigan National Guard and her unit was deployed overseas” “around September of 2012,” he was assigned to the case in October 2012, and he reviewed existing evidence of the shooting . The prosecutor asked Detective McCallister “what types of problems” he “ha[d] with a ctually untangling what had happened” the night of the shoo ting. In response , Detective Mc Callister explained

the biggest problem that I had was here I had a pile of several witnesses, eye witnesses, who admit to being there, admit to being, you know, within feet of what happened. However, nobody was being honest. It was blata ntly obvious to me in reviewing video recordings of these interviews that these people weren’t— they weren’t telling the truth. They were minimizing their act ivities and not providing the original investigators with what they actually sa w and what knowledge that they did, in fact, have.

Detective McCallister further testified that he believed that t he case was not truly cold and that “[t]his case still had some loos e ends that we needed to pull o n . . . .” Detective McCallister then described his investigation of the case. 2

Eight eyewitnesses, including vi ctim Kimble, testified at tria l. In making the above, quoted comment, Detective McCallister did not indicate a belief that any specific witness testified truthfully, indicate a belief that any specific witne ss’s story was verifi ed, or comment on

2 On appeal, Terreon argues genera lly that Detective McCallister improperly inflated Mizori’s testimony by improperly denigra ting eye witnesses’ testimony. Terreon must include and specifically cite to facts from t he record to support his argum ent. See MCR 7.212(C)(7). Terreon only cites the block quo ted testimony above. Therefore , he abandoned any challenge to other portions of Detective M cCallister’s testimony. See People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009); People v Jones (On Rehearing) , 201 Mich App 449, 456-457; 506 NW2d 542 (1993).-4- or provide an opinion about the c redibility of any other specif ic witness. Rather, the cited testimony concerned general police procedures. See Bahoda , 448 Mich at 281-282. Therefore, it is not apparent from the record that defense counsel perform ed deficiently in failing to object to Detective McCallister’s tes timony, and the tria l court did n ot plainly err in admitting Detective McCallister’s testimony.

III. JURY INSTRUCTIONS

Next, Terreon argues that the trial court improperly issued an aiding and abetting instruction because the evidence presented at trial did not sup port a finding that he was involved in the shooting as an aider a nd abettor. We disagree.

We review claims of instructional error de novo. People Martin , 271 Mich App 280, 337; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008). We review the trial court’s decision that a specific jury instruction applies to the facts of a case for an abuse of discretion. People v Armstrong , 305 Mich App 230, 239; 851 NW2d 856 (2014). A “trial court a buses its discretion when its outcome falls outside t he range of principled outcomes .” Id

. The jury instructions “must notexclude from jury consideratio n material issues, defenses or theories if there is evidence to support them.” People v Reed , 393 Mich 342, 349-350, 224 NW2d 867 (1975). The trial court properly issues a jury instru ction “if a rational view of the evidence supports the instruction.” Armstrong , 305 Mich App at 240.

A trial court properly issues a n aiding and abetting instructi on when a prosecutor presents evidence that defendant may have either been a principal or an aider and abettor. People v Smielewski , 235 Mich App 196, 206-207; 596 NW2d 636 (1999). MCL 767.39 p rovides that “[e]very person concerned in the commission of an offense, whet her he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” Accordingly, the Legislature has abolished the distinction between aiders and abettors and principals. Smielewski , 235 Mich App at 201-203.

In this case, a rational view of the evidence supports the tri al court’s decision to issue an aiding and abetting instruction. Brown testified that he and T erreon had a “beef” that began about three weeks before the shooting. Brown further testified that on the night of the shooting, Terreon arrived at the party, Br own pointed a gun at Terreon an d told him to leave, and Terreon left. Jones testified that he saw Terreon at the gas station t hat same night, Terreon was “hyped,” and Terreon was with someone who had a handgun. Mizori testifi ed that Terreon asked if he had seen Brown. Jones testified that the gun and truck he saw at t he gas station were involved in the shooting. Mizori and Eddie Williams testified that gunfire cam e from the truck and was directed at Brown. Mizori further identi fied Terreon as the shooter. H owever, multiple, other eyewitnesses testified that gun fire came from a vehicle, but t hey could not tell who was firing the gun or guns. Therefore, the jury could have concluded that Terreon either personally fired a gun, making him a principal, or was involved in planning and ca rrying out the shooting, making him an aider and abettor. Thus, the trial court did not abuse its discretion in concluding that an aiding and abetting instruction app lied to the facts of Terreon ’s case.-5- IV. OTHER ACTS EVIDENCE

Terreon argues in his brief filed pursuant to Michigan Supreme Court Administrative Order 2004-6, Standard 4, that the trial court abused its discr etion and violated his rights to due process and a fair trial by admitting other acts evidence witho ut weighing its probative value and prejudicial effect. We agree that the trial court erred, but c onclude that the error does not warrant reversal.

We review de novo preliminary que stions of law, including whet her a trial court properly interpreted a rule of evidence. People v Duncan , 494 Mich 713, 722-723; 835 NW2d 399 (2013). We review preserved challenges to the trial court’s ev identiary rulings for an abuse of discretion. Id

. MRE 404(b)(1) prohibits a party f rom introducing evidence of an other party’s other crimes, wrongs, or acts specifically to prove that person’s cha racter or propensity to engage in that type of action. MRE 404(b )(1). However, MRE 404(b)(1) is a rule of inclusion, People v VanderVliet , 444 Mich 52, 64; 508 NW2d 114 (1993), amended 445 Mich 1205 ( 1994), which allows the admission of relevant other acts evidence offered fo r another purpose, such as proof of motive, intent, and identity.

Courts use a four step analysis to determine whether other acts evidence is admissible pursuant to MRE 404(b)(1). VanderVliet , 444 Mich at 74. First, a party must offer the evidence for a permissible purpose. Id . Second, the evidence must be relevant. Id . Third, the trial court must consider whether the evide nce’s probative value is substan tially outweighed by a danger of unfair prejudice, such that it should be excluded under MRE 403

. Id . Fourth, “ ‘the trial court shall, upon request, instruct the jury that the similar acts ev idence is to be considered only for the proper purpose for which it was admitted.’ ” Id ., quoting Huddleston v United States , 485 US 681, 691-692; 108 S Ct 1496; 99 L Ed 2d 771 (1988).

In this case, the prosecution offered other acts evidence of t he two prior altercations between Terreon and Brown. The trial court determined that the prosecution offered the evidence for proper purposes and that evidence was relevant. T erreon argued that the evidence was substantially more prejudicia l than probative, but the tria l court did not weigh the probative value and prejudicial effect of th e evidence under MRE 403. Ac cordingly, the trial court erred by failing to properly analyze the admissibility of the evidenc e because it did not complete the third step of the VanderVliet analysis.

However, Terreon has not established that the trial court comm itted an error of constitutional magnitude. The admission of other acts evidence does not violate a defendant’s constitutional right to due process unless it renders a defenda nt’s trial fundamentally unfair. See Spencer v Texas , 385 US 554, 560-564; 87 S Ct 648; 17 L Ed 2d 606 (1967); People v Pinkney
, 316 Mich App 450, 477-478; 891 NW2d 891 (2016). The types of i nfractions that render a trial fundamentally unfair are very nar row but include admission of e vidence that is “so extremely unfair that its admission violates fundamental conceptions of j ustice.” Dowling v United States
, 493 US 342, 352; 110 S Ct 668; 107 L Ed 2d 708 (1990) (internal quotation marks and citation omitted). A limiting instruction on the use of other acts evid ence generally protects the defendant’s interests in due process. See Spencer , 385 US at 560-564.-6- The other acts evidence plaintiff offered in Terreon’s case co ncerned two other incidents between Brown and Terreon. Plaintiff offered the evidence for proper purposes, to show motive, intent, and identity. Plaintiff did not argue that Terreon sho uld be convicted because the evidence showed he had a propensity to commit the charged crime s. Moreover, the trial court instructed the jury that it could only consider the other acts evidence to determine whether Terreon had a reason to commit the crime, specifically intended to murder Brown, or was one of the people who committed the crime. It instructed the jury not to consider the evidence “for any other purpose,” including whether defendant was a bad person or likely to commit crimes. The instruction can minimize the evidence’s prejudicial effect, see People v Cameron , 291 Mich App 599, 612; 806 NW2d 371 (2011), and we presume that these jurors followed these instructions,

see People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008). Therefore, the t rial court committed a nonconstitutional error.

Terreon failed to prove that this nonconstitutional error warr anted reversal. A preserved, nonconstitutional error is grounds for reversal only if it affi rmatively appears that it is “more probable than not that the erro r was outcome determinative.” People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999). “Evidence presents the danger of unfair prejudice when it threatens the fundamental goals of MRE 403: accuracy and fairn ess.” People v Vasher , 449 Mich 494, 501; 537 NW2d 168 (1995). Evidence’s prejudicial effect can substantially outweigh its probative value when the evid ence is only marginally probat ive and there is a danger that the trier of fact may give the evidence undue or preemptive weight, see People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008), or will inject “considerati ons extraneous to the merits of the case, such as jury bias, sympathy, anger, or shock,” People v Danto , 294 Mich App 596, 600; 822 NW2d 600 (2011). The trial court must weigh the evidence w hile considering “the availability of other means of proof.” See People v Starr , 457 Mich 490, 498 n 9; 577 NW2d 673 (1998) (internal quotations and citations omitted).

We cannot conclude that the tria l court’s failure to specifical ly analyze the other acts evidence pursuant to MRE 403 warrants reversal because we canno t conclude that MRE 403 would bar the other acts eviden ce. The other acts evidence was more than marginally probative. Many eye witnesses could not ide ntify the shooter. The other a cts evidence provided evidence of identity, motive, and intent. Terreon does not point to eviden ce that the jury gave the other acts evidence preemptive weight, and the jury instruction discussed above minimized the evidence’s prejudicial effect.

V. RES GESTAE WITNESSES

Finally, Terreon raises multiple issues concerning res gestae witnesses in his Standard 4 brief. None warrant reversal.

Res gestae witnesses are persons who “witness[ed] some event inthe continuum of the criminal transaction” whose testimony would “aid[] in developin g a full disclosure of the facts at trial.” See People v Long , 246 Mich App 582, 585; 633 NW2d 843 (2001).

First, Terreon argues that he was denied due process because hi s trial counsel was ineffective for failing to investigate and call five witnesses: Brown’s brother and cousin, who Terreon claims were present for the first fight between him and Brown; Daryl, who Terreon-7- argues was present for the s econd altercation between Terreon a nd Brown; David Arrington, who Terreon claims was present for his conversation with Roderigiou s; and Antwan, who Terreon claims was present for the s econd altercation and his conversat ion with Roderigious.

Because no evidentiary hearing was held regarding Terreon’s ine ffective assistance of counsel claim, our review is lim ited to mistakes apparent from the record. People v Payne , 285 Mich App 181, 188; 774 NW2d 714 (2009). 3

The rights to counsel, due proc ess, and a fair trial are inter twined. Strickland , 466 US at 684-685.

The Sixth Amendment right to coun sel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guaran tees a fair trial through the Due Process Clauses, but it defines the basic eleme nts of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause . . . . [ Id .]

As mentioned above, a defendant must show that his counsel’s pe rformance fell below an objective standard of reasonableness to sustain an ineffective assistance of counsel claim. Id . at 687-688. To show deficient performance, a defendant must overcome the st rong presumption that defense counsel’s performance constituted sound trial strategy. People v Vaughn , 491 Mich 642, 670; 821 NW2d 28 8 (2012). The decision to investigate or call witnesses can be a matter of trial strategy. People v Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008); People v Swain , 288 Mich App 609, 645-646; 794 NW2d 92 (2010). A defendant must al so show that there is a reasonable probability that counsel’s deficient performance pre judiced him. Strickland , 466 US
at 687. “To establish prejudice, [a defendant] must show a reason able probability that the outcome would have been different but for counsel's errors.” People v Grant , 470 Mich 477, 486; 684 NW2d 686 (2004). A defendant cannot show prejudice fr om the failure to call a witness without some indication that a witness would have testi fied favorably for defendant. People v Pratt , 254 Mich App 425, 430; 656 NW2d 866 (2002).

Terreon failed to show that he suffered prejudice from his cou nsel’s failure to call Brown’s brother or cousin as witnesses because he points to no evidence in the record that Brown’s brother or cousin would ha ve testified favorably for Te rreon. See Id

. 4

Terreon cannot show that counsel performed deficiently in fail ing to investigate or call Antwan or Daryl to testify regarding Terreon and Brown’s second altercation. Jones testified

3 This Court previously denied Terreon’s motion to remand to the trial court for an evidentiary hearing. People v Smith , unpublished order of the Court of Appeals, entered March 3, 2 017 (Docket No. 331305).

4 We also note that Terreon’s appe llate counsel states in Terreo n’s primary brief on appeal that “the defense did not dispute the evidence of the two prior alte rcations between [Terreon] and Gary Brown” at trial.-8- that he saw Antwan and Daryl together in a vehicle with Terreonshortly before the drive-by shooting. Therefore, Antwan and Daryl were possible codefendan ts, and counsel may have made the strategic decision not to call them as witnesses becau se they may have implicated Terreon or invoked their Fifth Amendment rights not to testify. Further, Terreon cannot show prejudice because there is no i ndication in the record that Ant wan or Daryl would have testified favorably for Terreon.

Finally, Terreon cannot show that counsel was deficient for fai ling to call Arrington and Antwan to discuss his conversation with Roderigious or that fai lure to call them prejudiced him. There is no indication in the record that these witnesses could dispute any part of the alleged confession. Rather, Roderigious testified that Arrington and A ntwan left before Terreon made any incriminating admissions, and no one else was present durin g the confession.

Second, Terreon argues that the prosecution committed miscondu ct by failing to notify Terreon of these same, five res ge stae witnesses pursuant to MC L 767.40a. We disagree.

Terreon did not preserve this argument. Therefore, we review his claim for plain error. Carines , 460 Mich at 763.

A prosecutor commits misconduct if his or her conduct denied th e defendant a fair and impartial trial. People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). However, standing alone, prosecutorial misconduct is not constitutional error. People v Blackmon , 280 Mich App 253, 262, 269; 761 NW2d 172 (2008). Because Terreon a lleges that the prosecutor’s conduct violated a statutory r ight, Terreon asserts nonconstitutional error.

MCL 767.40a provides that the prosecution has a continuing duty to disclose all known res gestae witnesses:

(1) The prosecuting attorney shall attach to the filed informa tion a list of all witnesses known to the pros ecuting attorney who might be ca lled at trial and all res gestae witnesses known to the prosecuting attorney or i nvestigating law enforcement officers.

(2) The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become kn own. . . .
The prosecution’s duty consists o f informing the defendant of “ all known witnesses and those it discovers,” indicating which witnesses it will call at trial, and providing reasonable assistance to produce those witnesses it does not call. People v Burwick , 450 Mich 281, 297; 537 NW2d 813 (1995). The prosecution has no dut y to disclose witnesses that it is unaware of before trial. Id . at 295.

Terreon argues that the prosecution should have provided res g estae notice about Brown’s brother and cousins. Brown testified at trial that he had his brother and his cousins with him during his first confrontation with Terreon. There is no indication in the record that the prosecution knew that Brown’s brother and cousins were present before this trial testimony. Therefore, the prosecution ha d no duty to disclose the witnesse s.-9- As noted above, Terreon argues that Daryl and Antwan were res gestae witnesses who could have testified regarding Terreon and Brown’s second alter cation. However, Terreon provides no information about what testimony they could offer o r that they would testify favorably for Terreon. Therefore, Terreon has not established that any failure to disclose the witnesses affected the outcome of the lower court proceeding, a s is required to establish plain error affecting substantial rights. See Carines , 460 Mich at 763. Similarly, Terreon has not established that any failure to disclose constituted nonconstit utional error. See Lukity , 460 Mich at 495-496.

Again, Terreon argues that Antwan and Arrington were res gestae witnesses who could have testified regarding his al leged confession to Roderigious. However, Roderigious testified that he and Terreon were alone on the porch when he asked Terre on about the shooting and Terreon made incriminating admissions. Therefore, Terreon fail s to establish the predicate of this argument, i.e., that Ant wan and Arrington witnessed the al leged confession.

Third, Terreon argues that he re ceived ineffective assistance of counsel because his counsel failed to object to this prosecutor misconduct. Counse l need not advance meritless arguments. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). Because Terreon has not established any e rror in the prosecution’s disc losure of Brown’s brother, Brown’s cousin, Arrington, or A ntwan, in part, he cannot establ ish that trial counsel rendered ineffective assistance. Additionally, because Terreon cannot e stablish that the failure to disclose Daryl and Antwan, in part, prejudiced him, see Grant , 470 Mich at 486; Pratt , 254 Mich App at 430, he cannot establish that the failure to object to their di sclosure rendered ineffective assistance.

We affirm.

/s/ Brock A. Swartzle /s/ Henry William Saad /s/ Peter D. O’Connell