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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UNPUBLISHED 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: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ. 

PER CURIAM. 

 Defendant, Terreon Smith, appeals by right his convictions of first-degree murder, MCL 

750.316 (open murder), two counts of assault with intent to commit murder, MCL 750.83, 

carrying a concealed weapon (CCW), MCL 750.227, and possessing a firearm during the 

commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced him as a 

third-offense habitual offender, MCL 769.11, to serve concurrent 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’ imprisonment for his felony-firearm conviction. We affirm. 

I. FACTS 

 Terreon’s convictions resulted from a drive-by shooting. 

 Gary Brown testified that he and Terreon had a “beef” that began about three weeks 

before the shooting. During the first altercation between Brown and Terreon, Terreon and 

Brown got into a fist fight. Terreon was with a group. Brown testified that he heard someone 

ask for a gun, Brown ran from the fight, and Brown then heard gunshots. The second altercation 

between the men occurred the night of the shooting. Brown testified that he was helping L.C. 

Wilson1

 provide security for a teen party at a Lansing home. LC testified 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. 
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When Brown saw Terreon approach, Brown drew a gun, pointed it at Terreon, and told him to 

leave. Terreon and Antwan left the party. 

 Chris Jones testified that he and his friend Merza Mizori encountered Terreon, Antwan, 

Daryl Smith, and a man he did not know, at a Lansing area gas station. Jones saw the men get 

out of a truck. The man Jones did not know had a silver or chrome handgun with black grips. 

Terreon and Jones spoke. Mizori testified that Terreon asked him if he knew where Brown was. 

 Jones testified that he learned of the party at the gas station, 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 park, and he saw a truck pull onto the street. Someone in the truck 

began shooting from the back driver’s side window. Jones did not 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 was, from the driver’s side of the 

vehicle. Other witnesses testified about the vehicle and the gunfire, but none testified to seeing 

the shooter. Levon Wilson was shot and killed, and Macon Kimble 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 David 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 McCallister improperly 

commented on the credibility of witnesses, defense counsel’s failure 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 comment 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 error. See People v Carines, 460 

Mich 750, 763; 597 NW2d 130 (1999). Plain error occurs when there 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 the outcome of the lower court 

proceedings.” Id. Further, we will only reverse “when the plain, forfeited error resulted in the 

conviction of an actually innocent defendant” or “seriously affected the fairness, integrity or 

public reputation of judicial proceedings.” Id. at 763-764 (internal quotations, alterations, and 

citations omitted). Finally, because the trial court did not hold an evidentiary hearing regarding 

the effectiveness of trial counsel, our review of the ineffective 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 assistance of counsel.” Id.; 

see US Const, Am VI; Const 1963, art 1, § 20. A defendant receives ineffective assistance of 

counsel if (1) defense counsel’s performance fell below an objective standard of reasonableness 
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and (2) there is a reasonable probability that counsel’s deficient 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 opinion, MRE 701, if the 

officer bases his or her opinion on direct perceptions rather than 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 procedure. 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 witness’s story was verified, 

id., or comment on or provide an opinion about the credibility of other witnesses, People v 

Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). Rather, jurors must evaluate 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 lead 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 actually untangling what had 

happened” the night of the shooting. In response, Detective McCallister 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 blatantly 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 activities and not 

providing the original investigators with what they actually saw and what 

knowledge that they did, in fact, have. 

Detective McCallister further testified that he believed that the case was not truly cold and that 

“[t]his case still had some loose ends that we needed to pull on . . . .” Detective McCallister then 

described his investigation of the case. 2 

 Eight eyewitnesses, including victim Kimble, testified at trial. 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 witness’s story was verified, or comment on 

 

2

 On appeal, Terreon argues generally that Detective McCallister improperly inflated Mizori’s 

testimony by improperly denigrating eye witnesses’ testimony. Terreon must include and 

specifically cite to facts from the record to support his argument. See MCR 7.212(C)(7). 

Terreon only cites the block quoted testimony above. Therefore, he abandoned any challenge to 

other portions of Detective McCallister’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). 
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or provide an opinion about the credibility of any other specific 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 performed deficiently in failing to object 

to Detective McCallister’s testimony, and the trial court did not 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 support a finding that he was involved 

in the shooting as an aider and 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 abuses its discretion 

when its outcome falls outside the range of principled outcomes.” Id. 

 The jury instructions “must not exclude from jury consideration 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 instruction “if a rational view of the 

evidence supports the instruction.” Armstrong, 305 Mich App at 240. 

 A trial court properly issues an aiding and abetting instruction 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 provides that 

“[e]very person concerned in the commission of an offense, whether 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 trial court’s decision to issue an 

aiding and abetting instruction. Brown testified that he and Terreon 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, Brown pointed a gun at Terreon and told him to leave, and Terreon 

left. Jones testified that he saw Terreon at the gas station that same night, Terreon was “hyped,” 

and Terreon was with someone who had a handgun. Mizori testified that Terreon asked if he had 

seen Brown. Jones testified that the gun and truck he saw at the gas station were involved in the 

shooting. Mizori and Eddie Williams testified that gunfire came from the truck and was directed 

at Brown. Mizori further identified Terreon as the shooter. However, multiple, other 

eyewitnesses testified that gun fire came from a vehicle, but they 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 carrying 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 applied to the facts of Terreon’s case. 
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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 discretion and violated his rights to due 

process and a fair trial by admitting other acts evidence without weighing its probative value and 

prejudicial effect. We agree that the trial court erred, but conclude that the error does not 

warrant reversal. 

 We review de novo preliminary questions of law, including whether 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 evidentiary rulings for an abuse of 

discretion. Id. 

MRE 404(b)(1) prohibits a party from introducing evidence of another party’s other 

crimes, wrongs, or acts specifically to prove that person’s character 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 for 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 evidence’s probative value is substantially 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 evidence 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 the 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. Terreon argued that the evidence 

was substantially more prejudicial than probative, but the trial court did not weigh the probative 

value and prejudicial effect of the evidence under MRE 403. Accordingly, the trial court erred 

by failing to properly analyze the admissibility of the evidence because it did not complete the 

third step of the VanderVliet analysis. 

 However, Terreon has not established that the trial court committed 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 defendant’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 infractions that render a trial 

fundamentally unfair are very narrow but include admission of evidence that is “so extremely 

unfair that its admission violates fundamental conceptions of justice.” 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 evidence generally protects the 

defendant’s interests in due process. See Spencer, 385 US at 560-564. 
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 The other acts evidence plaintiff offered in Terreon’s case concerned 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 should be convicted because the 

evidence showed he had a propensity to commit the charged crimes. 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 trial court 

committed a nonconstitutional error. 

 Terreon failed to prove that this nonconstitutional error warranted reversal. A preserved, 

nonconstitutional error is grounds for reversal only if it affirmatively appears that it is “more 

probable than not that the error was outcome determinative.” People v Lukity, 460 Mich 484, 

495-496; 596 NW2d 607 (1999). “Evidence presents the danger of unfair prejudice when it 

threatens the fundamental goals of MRE 403: accuracy and fairness.” People v Vasher, 449 

Mich 494, 501; 537 NW2d 168 (1995). Evidence’s prejudicial effect can substantially outweigh 

its probative value when the evidence is only marginally probative 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 “considerations 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 while 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 trial court’s failure to specifically analyze the other acts 

evidence pursuant to MRE 403 warrants reversal because we cannot conclude that MRE 403 

would bar the other acts evidence. The other acts evidence was more than marginally probative. 

Many eye witnesses could not identify the shooter. The other acts evidence provided evidence of 

identity, motive, and intent. Terreon does not point to evidence 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 in the continuum of the 

criminal transaction” whose testimony would “aid[] in developing 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 his 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 
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argues was present for the second altercation between Terreon and Brown; David Arrington, who 

Terreon claims was present for his conversation with Roderigious; and Antwan, who Terreon 

claims was present for the second altercation and his conversation with Roderigious. 

Because no evidentiary hearing was held regarding Terreon’s ineffective assistance of 

counsel claim, our review is limited to mistakes apparent from the record. People v Payne, 285 

Mich App 181, 188; 774 NW2d 714 (2009).3 

 The rights to counsel, due process, and a fair trial are intertwined. Strickland, 466 US at 

684-685. 

The Sixth Amendment right to counsel exists, and is needed, in order to protect 

the fundamental right to a fair trial. The Constitution guarantees a fair trial 

through the Due Process Clauses, but it defines the basic elements 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 performance 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 strong presumption 

that defense counsel’s performance constituted sound trial strategy. People v Vaughn, 491 Mich 

642, 670; 821 NW2d 288 (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 also show that there is a 

reasonable probability that counsel’s deficient performance prejudiced him. Strickland, 466 US

at 687. “To establish prejudice, [a defendant] must show a reasonable 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 from the failure to call a 

witness without some indication that a witness would have testified 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 counsel’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 have testified favorably for Terreon. See Id.

4

 

 Terreon cannot show that counsel performed deficiently in failing 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, 2017 

(Docket No. 331305). 

4

 We also note that Terreon’s appellate counsel states in Terreon’s primary brief on appeal that 

“the defense did not dispute the evidence of the two prior altercations between [Terreon] and 

Gary Brown” at trial. 
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that he saw Antwan and Daryl together in a vehicle with Terreon shortly before the drive-by 

shooting. Therefore, Antwan and Daryl were possible codefendants, and counsel may have 

made the strategic decision not to call them as witnesses because they may have implicated 

Terreon or invoked their Fifth Amendment rights not to testify. Further, Terreon cannot show 

prejudice because there is no indication in the record that Antwan or Daryl would have testified 

favorably for Terreon. 

Finally, Terreon cannot show that counsel was deficient for failing to call Arrington and 

Antwan to discuss his conversation with Roderigious or that failure 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 Antwan left before Terreon made 

any incriminating admissions, and no one else was present during the confession. 

 Second, Terreon argues that the prosecution committed misconduct by failing to notify 

Terreon of these same, five res gestae witnesses pursuant to MCL 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 the 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 alleges that the prosecutor’s 

conduct violated a statutory right, 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 information a list of 

all witnesses known to the prosecuting attorney who might be called at trial and 

all res gestae witnesses known to the prosecuting attorney or investigating 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 known. . . . 

The prosecution’s duty consists of 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 duty to disclose witnesses that it is unaware of before trial. Id. at 

295. 

 Terreon argues that the prosecution should have provided res gestae 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 had no duty to disclose the witnesses. 
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 As noted above, Terreon argues that Daryl and Antwan were res gestae witnesses who 

could have testified regarding Terreon and Brown’s second altercation. However, Terreon 

provides no information about what testimony they could offer or 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, as 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 nonconstitutional 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 alleged confession to Roderigious. However, Roderigious testified 

that he and Terreon were alone on the porch when he asked Terreon about the shooting and 

Terreon made incriminating admissions. Therefore, Terreon fails to establish the predicate of 

this argument, i.e., that Antwan and Arrington witnessed the alleged confession. 

 Third, Terreon argues that he received ineffective assistance of counsel because his 

counsel failed to object to this prosecutor misconduct. Counsel need not advance meritless 

arguments. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Because 

Terreon has not established any error in the prosecution’s disclosure of Brown’s brother, 

Brown’s cousin, Arrington, or Antwan, in part, he cannot establish that trial counsel rendered 

ineffective assistance. Additionally, because Terreon cannot establish 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 disclosure rendered ineffective 

assistance. 

 We affirm. 

/s/ Brock A. Swartzle 

/s/ Henry William Saad 

/s/ Peter D. O’Connell