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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 20, 2017

v No. 329901

Kalamazoo Circuit Court DAQUAN ANDREW PRITCHETT, LC No. 2014-001082-FC

Defendant-Appellant.

Before: O’B RIEN , P.J., and S ERVITTO and S TEPHENS , JJ.

P ER C URIAM

.

Daquan Andrew Pritchett was convicted by a jury of second-degr ee murder, MCL 750.317, possession of a firearm during the commission of a fel ony, MCL 750.227b, and retaliating against a witness, MCL 750.122(8), and sentenced to concurrent prison terms of 20 to 50 years for the murder convicti on and 5 to 10 y ears for the wi tness retaliation conviction as well as a consecutive prison term of 2 years for the firearm convict ion. He appeals as of right his October 19, 2015 judgment of s entence. We affirm.

I. FACTUAL BACKGROUND

Christopher Lee Adams was shot and killed by defendant on July23, 2014. The shooting was the product of a three-day conflict between two groups of three individuals: (1) Adams, Christian Ruiz, and Tyler Bishop, and (2) defendant, Charles Wr ight, and Darrion Pulliam. On July 21, 2014, two days before th e shooting, the victim and Rui z met with Tony Briones, Wright, and Pulliam to sell them marijuana. The victim and Ruiz gave B riones, Wright, and Pulliam the marijuana; Briones, Wright, and Pulliam handed the victim and R uiz what they believed was a $100 bill. After both groups of men left the transaction, howe ver, Ruiz discovered that it was not, in fact, a $100 bill; rather, it was a seemingly worthless coupon. The victim and Ruiz attempted to confront the other three immediately after realizi ng this, but “they had took off already running.” So, the victim and Ruiz “got back in the car and went on with [their] night.” Later that evening, Ruiz and several other individuals apparent ly searched for them in hopes of obtaining the $100, and they eventually came into contact with defendant. One of the other people with Ruiz, Justin Key, “w as asking questions to Daquan a sking him if he’d see some guys running around o[r] if he heard of anything, if he’d let him kn ow,” but defendant “said he hadn’t seen nothing . . . .”-2- The following day, on July 22, 2014, Adams, Ruiz, and Bishop, now joined by Ashley Sootsman, “went to get some more weed” in Ashley’s minivan and eventually “seen them,” meaning a group of individuals t hat included Wright, “on the po rch” of a home on Mt. Olivet Rd. in Kalamazoo, Michigan. Defendant, Ruiz, and Bishop apparentlycame up with a plan to have

Sootsman “ask ‘em for directions to see if [they] could get ‘em to come out to the road” to “fight ‘em.” The plan was unsuccessful, however, because the individu als remained on the porch and “pretty much just told her to just keep going straight.” Disap pointed with the outcome of this exchange, the four decided to continue “down the road” but “end ed up coming back” and “started yelling, talking smack” and “telling ‘em to meet us inthe street, calling ‘em pussies, you know.” The individuals on the po rch “didn’t really do nothing” in response to the yelling and name calling.

The next day, on July 23, 2014, Adams, Ruiz, Bishop, and Soots man again decided to travel around the area in Sootsman’s minivan. In doing so, the y returned to Mt. Olivet Rd. and “saw Charles and Daquan walking down the road and Darrion.” Ac cording to Ruiz, they decided to confront them: “I was thinking oh, that’s them and then I said it and Tyler was like oh, yeah, that’s them, Chris. Oh, yeah, so we . . . turned aro und and pulled up on them.” Ruiz explained the remainder of the c onfrontation, in pertinent part , as follows:

I went to go chase after . . . I can’t remember who it was, [b ut] it wasn’t the flat top kid [Wright]. I went to go chase after Darrion ca use he was running, to go after him. And I took a couple steps and I heard Chris s ay he’s got a gun. And I stopped and turned around, r an and dove back into the van

.

* * *

Well, when I heard him say that, I had stopped frozen in my tr acks and went to go turn around and I could see Daquan standing there. Well, I have peripherals in my eye. I coul d see Daquan standing there with his arm straight up. And . . . at that time you heard a gun shot go off.

* * *

Proceeded to run and jump into the van. I got inside the van and then Chris jumped in on top of me. I could see out the back seat of the van and I could see like --. I could just hear a lot of shots and I could see Tyler. And then I remember kinda coming to. I was kinda like blacked out for a m inute. I remember kinda coming to and then pushed Chris off of me and he was shot and pulled Tyler into the van and took off.”

After realizing that Adams had been shot, Ruiz “just laid him u p on the seat,” “started putting pressure on his chest,” and “told Ashley to take off.” They arrived at the hospital shortly thereafter, but Adams did not survive. According to Dr. Joyce DeJong, who testified “as an expert in the area of forensic p athology,” two factors led to A dams’s death: “exsanguination or bleeding to death . . . and also there’s an asphyxial component .”

Defendant essentially admitted that he did, in fact, shoot at the minivan; however, he

claimed he did so in self-defens e. At trial, defendant acknowl edged that he obtained a firearm,-3- which he described as “a little itty-bitty gun, like the size o f [his] palm,” the day before the shooting “[c]ause [he] was scared, you know.” Defendant acknow ledged that, during the July 23, 2014 confrontation, he fired multiple shots, including one “into the air” and a second “in the vicinity of” the van. He claimed that he did so “[b]ecause [he ] was scared” and “[f]ear[ed] for [his] life.” Four days after the shooting, on July 27, 2014, d efendant voluntarily went to law

enforcement “to set the record s traight” because “[h]e wasn’t h appy with the media and how they portrayed him,” according to a staff lieutenant with the Kalama zoo Department of Public Safety. Defendant then proceeded to make multiple statements to law enf orcement, during which he defended his actions as having b een done during “a black-out” o r in self-defense.

Defendant was subsequently charged with first-degree murder, M CL 750.316, and felony firearm, MCL 750.227b. On August 20, 2014, the day after the p reliminary examination on those charges, defendant spoke w ith a female named Ostayvionna Williams and made what the prosecution alleged were request s “to physically assault two wi tnesses that testified at the preliminary examination.” For example, defendant told Williams that “[h]e was not happy about” testimony at preliminary examination and told Willaims t o “tell two friends,” “Anthony and Caleb,” to “do what they got to do, man, real shit, put the paws on them . . . .” In light of this, the prosecution filed, and the trial court granted, a mot ion to amend the information to include a witness-retaliation charge.

After a multiple-day trial, the jury found defendant guilty of second-degree murder, MCL 750.317, felony firearm, MCL 750.227b, and witness retaliation, MCL 750.122(8). The trial

court sentenced defendant as de scribed above, and this appeal f ollowed.

II. ANALYSIS

A. SPECIALIST LATHAM’S TESTIMONY

On appeal, defendant first argue s that he was deprived of his constitutional right to a fair trial because Gary Latham (“Specialist Latham”), a crime lab sp ecialist with the Kalamazoo Department of Public Safety, was permitted to offer expert test imony regarding firearms without being qualified as an expert. We disagree.

Preserved evidentiary issues are reviewed for an abuse of disc retion. People v Orr , 275 Mich App 587, 588; 739 NW2d 385 (2007). However, because these arguments were not properly preserved for appellate r eview, they are reviewed for plain error affecting substantial rights. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999). Constitutional e rrors are generally reviewed de novo. People v Rodriguez , 251 Mich App 10, 25; 650 NW2d 96 (2002).

MRE 701 and 702 govern the admissibility of opinion testimony. MRE 701 governs the admissibility of opinion tes timony by lay witnesses:

If the witness is not testifying as an expert, the witness’ te stimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) h elpful to a clear understanding of the witness’ tes timony or the determination of a fact in issue.-4- MRE 702 governs the admissibility of expert testimony:

If the court determines that sc ientific, technical, or other s pecialized knowledge will assist the trier of fact to understand the evide nce or to determine a fact in issue, a witness qualified as an expert by knowledge, s kill, experience, training, or education may testify thereto in the form of an op inion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliabl y to the facts of the case.

As this Court has recognized bef ore, the interplay between MRE 701 and MRE 702 when a police officer provides testimony based on his or her trainin g and experience is somewhat

unclear. See People v Dobek , 274 Mich App 58, 77; 732 NW2d 546 (2007) (“The caselaw on this issue is not entirely clear.”). In Dobek , the prosecution offered the testimony of a police officer, Bruce Leach, “regarding delayed disclosure” in sexual- assault cases “as simply a police officer giving lay testimony base d on his traini ng and experien ce without . . . bei ng first qualified as an expert, while suggesting to the jury that Leach was an expert on the subject.” Id . at 76. The trial court ruled that the testimony was admissible as lay testimony and instructed the jury as

such. Id . at 76-77. On appeal, defendant challenged this ruling, argui ng that this testimony required that the police offi cer be qualified as an expert. Id . at 76.

This Court analyzed this issue as follows:

Because Leach was testifying about delayed disclosure on the b asis of knowledge, experience, and traini ng, it would appear that his t estimony constituted expert opinion tes timony and not lay opinion testim ony under MRE 701, which is limited to opinions or inferences that are “ratio nally based on the perception of the witness” and that are “helpful to a clear und erstanding of the witness’ testimony or the determination of a fact in issue.” T he caselaw on this issue is not entirely clear. For example, in Chastain v Gen Motors Corp (On Remand) , 254 Mich App 576; 657 NW2d 804 (2002), the trial court permitted a police officer to give lay opinion testimony under MRE 701 that the plaintiff was not wearing his seatbelt. This Court affirmed, rejecting the p laintiff’s claims that

the trial court should not have admitted evidence under MRE 701 , that expert testimony under MRE 702 was nece ssary, and that the officer was not qualified to give an expert opinion on the issue. The Chastain panel held that the lay opinion was not admitted in error because the testimony was based on th e officer’s perceptions at the scene of the accident and because the opinio n was not based on his past experience in investigating car accidents. Chastain

, supra at 586-590. The Court stated, “A careful examination of [the officer’s] tes timony establishes that although his opinion in this case was consistent with conc lusions he had drawn in other cases he had investigated, his past experience d id not form the basis of his opinion.” Id . at 590. Here, Leach’s testimony on delayed disclosure was drawn from his past experiences and training.

In Co-Jo, Inc v Strand , 226 Mich App 108; 572 NW2d 251 (1997), the plaintiffs argued that an off- duty fireman’s opinion testimony regarding the speed-5- at which a building burned was improperly admitted as lay opini on testimony under MRE 701 because expert testimony was required and the fir eman was not qualified as an expert. This Court held that the trial court d id not abuse its discretion in admitting the opinion evidence regarding the spee d and intensity of

the fire. Co-Jo

, supra at 117. The Co-Jo panel stated:

[The fireman’s] conclusions w ere based on observation of the fire for over thirty minutes. The opinion testimony was li mited to describing the fire in relation to other building fires [the fireman] had witnessed. The reliability of his conclusions was premised on his extensive expe rience in observing other buildin g fires and investigating their causes. The testimony was of a general nature, without any refe rence to technical comparison o f scientific analysis. [ Id .]

Under Co-Jo , it could be reasonably argued that Leach’s testimony was acceptable lay opinion testimony. Co-Jo appears to be at odds with Chastain

. We, however, do not need to resolve the issue, and the apparent conflict in caselaw gives credence to a conclusion that the prosecutor did not pursue the challenged questioning in bad faith. Assuming that expert test imony was required, Leach was more than qualified to give an expert opini on on delayed disclosure to the extent of the testimony actually presented. He testified at length about his extensive knowledge, experience, training, and educat ion concerning the sexual abuse of children. Leach has personally participated inthe investigation of

hundreds of criminal sexual conduc t cases involving child victi ms. And he had received training in the investigation of cases involving delay ed disclosure. With his background and experience ininvestigating child sex abuse cases and interviewing victims, Leach became knowledgeable regarding delayed disclosure, and, according to Leach, delayed disclosure is common and happe ns quite frequently with child victims. On this record, the disputed te stimony was admissible, and the prosecutor acted in good faith in eliciting the testimony. Accordingly, reversal is unwarranted. [ Dobek , 274 Mich App at 77-79 (alterations in original).]

In our view, Dobek is dispositive of the arguments made by defendant in this regar d. Even if we assume that expert testimony was required as argued by defendant, Dobek , 274 Mich App at 79 (“Assuming that expert testimony was required, Leach was more than qualified to give an expert opinion on delayed disclosure to the extent of the te stimony actually presented.”), Specialist Latham’s testimony supports a conclusion that he was sufficiently qualified to give the testimony at issue. At trial, Sp ecialist Latham testified that he was employed as a “crime lab specialist” with the Kalamazoo Department of Public Safety and had been “since 2006,” that he had “been a public safety offi cer since 1998,” and that he was a “crime lab technician [from] 2002 [until being] promoted to crime lab specialist in 2006”; t hat he has “a Bachelor of Science in Criminal Justice with an emphasis in criminalistics” and had “interned with the Kalamazoo Crime Lab while . . . going through [his] college years”; and that he had completed “accident reconstruction training,” “over 200 hours in crime scene analys is training, about 360 hours in traffic crash investigation tr aining, over 150 hours in forensi c video training, 300 hours training-6- in controlled substance exam ination . . . and 150 hours of trai ning in firearms and shooting scene construction.” Based on this experience, education, and traini ng, Specialist Latham then provided extensive testimony regar ding the differences between various types of firearms.

Applying the rules set forth above to these facts, we conclude that, “[a]ssuming that expert testimony was required, [ Specialist Latham] was more tha n qualified to give an expert opinion . . . to the extent of the t estimony actually presented .” Dobek , 274 Mich App at 79. It is apparent that Specialist Latham had years of experience, years of education, and hours of training with respect to crime-scene investigations. Based on this experience, education, and training, it is equally apparent that he became quite knowledge able regarding the differences between various types of firearms and bullets. It was this exp erience, education, training, and knowledge that he used to reach his opinion that the bullet rec overed from the victim’s body was “more consistent with being fired from a revolver.” In short, there is nothing in the record to suggest that the requirements of MRE 702—(1) the testimony is b ased on sufficient facts or data, (2) the testimony is the product of reliable principles and met hods, and (3) the witness has applied the principles and methods reliably to the facts of the case—would not be satisfied in light of Specialist Latham’s experience, education, training, a nd knowledge. We therefore conclude that the admission of Specialist Latham’s testimony do es not require reversal.

On appeal, defendant argues that, “[e]ven if Mr. Latham had be en qualified as an expert witness, which is doubtful given his lack of specialized traini ng, it is questionable whether his analysis of the bullet and hole in the van fender met the stand ards under MRE 702.” Specifically, he argues that Spe cialist Latham’s opinion in thi s regard was not based on sufficient facts or data, was not the produc t of reliable principles and m ethods, and that Specialist Latham had not applied the principles a nd methods reliably to the fact s of the case. MRE 702. To support this position, defendant points to a variety of authori ties reflecting what he implies are weaknesses in ballistics experts’ testimony and argues that “to olmark identification is highly subjective, unreliable, completel y unscientific, subject to err or, and lacking a precisely defined process . . . .” However, this C ourt has recognized the admiss ibility of ballistics experts’ testimony in the past, and we de cline to express any disagreeme nt with that conclusion at this time. See, e.g., People v Oliver , 170 Mich App 38, 49-50; 427 NW2d 898 (1988).

Finally, even if we assume error with respect to MRE 701 or MR E 702 as defendant suggests, we nevertheless concl ude that reversal is not require d because the admission of this testimony was not outcome determinative. On appeal, defendant’ s position is that this testimony was the only evidence that “directly linked the fatal bullet to Daquan’s unrecovered gun.” In essence, defendant portrays the issue presented to the jury as a question “about which gun— Daquan’s or Tyler’s—fired the fatal shot in this chaotic shooto ut.” This position is simply inconsistent with the evidence presented by both parties and de fendant’s trial theory. Defendant testified that he fired two shots, and he expressly acknowledge d that one of his shots “was in the vicinity of [the minivan].” In fact, according to Detective Jo hnson, defendant “admitted that he actually shot twice at the peopl e as he was running.” He expla ined that he did so because he “was scared” and “fear[ed] for [his] life.” Similarly, in his closing argument, trial counsel argued that defendant shot at the victim in self-defense. Conv ersely, no witnesses testified that it was possible that Tyler, not the defendant, actually shot the v ictim, as defendant now claims. Therefore, because any error was not outcome determinative, rev ersal is not required.-7- B. PROSECUTORIAL ERROR

On appeal, defendant also takes issue with four instances of a lleged prosecutorial error. First, he argues that the prosecutor committed prosecutorial er ror when “he offered the irrelevant testimony of the decedent’s father, Charles Adams, describing h is son’s personality as a young child and as he grew older.” Second, he argues that the prosec utor committed prosecutorial error in presenting Specialist Latham’s testimony as discussed above. Third, he argues that the prosecutor committed prosecutorial error by “us[ing] unnecessary, irrelevant, and very graphic language in his closing argument regarding the decedent’s blood loss.” Finally, he argues that the prosecutor committed prosecutorial error by “repeatedly vou ch[ing] for the truthfulness of one of the state’s key witnesses, Christian Ruiz, in his closin g argument.” We disagree in all four respects.

Generally, an assertion of pros ecutorial error must be met with a contemporaneous objection. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). If it is not, re view is precluded unless “an objection could not have cured the erro r, or a failure to review the issue would result in a miscarriage of justice.” People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). “Reversal is warranted only when plain error resul ted in the conviction of an actually innocent defendant or se riously affected the fairness, integrity, or public reputation of judicial proceedings.” Id . Constitutional errors are generally reviewed de novo. Rodriguez , 251 Mich App at 25. Unpreserved errors, however, are reviewed for plain error affect ing substantial rights. Carines , 460 Mich at 763-764.

To find that prosecutorial err or occurred, this Court must det ermine that the prosecutor’s conduct deprived the defendant of a fair and impartial trial. Dobek , 274 Mich App at 63. Assertions of prosecutorial error must be reviewed in context a nd on a case-by-case basis. People v Mann , 288 Mich App 114, 119; 792 NW2d 53 (2010). A prosecutor’s ar gument may be based on admitted evidence as well as any reasonable inferen ces that may be drawn

therefrom. People v Bahoda , 448 Mich 261, 282; 531 NW2d 659 (1995). This includes arguin g whether a witness is or is not credible. People v Unger , 278 Mich App 210, 240; 749 NW2d 272 (2008). Nevertheless, a prosecutor is not permitted to vouch f or a witness’s credibility, meaning that he or she may not assert that he or she has special knowle dge regarding a witness’s

truthfulness. People v Seals , 285 Mich App 1, 22; 776 NW2d 314 (2009). “Appeals to the jury to sympathize with the victim constitute improper argument.” People v Watson , 245 Mich App 572, 591; 629 NW2d 411 (2001).

At the outset, we could reject each of defendant’s claims of p rosecutorial error because each instance could have, but was not, met with a contemporaneo us objection that could have cured any error. Bennett , 290 Mich App at 475; Callon , 256 Mich App at 329. Nevertheless, in applying the rules set forth above to the alleged instances of prosecutorial error as identified by defendant, we conclude that reve rsal is not required. First, w ith respect to the victim’s father’s testimony, defendant takes issue with the father’s testimony th at his son was “very fearless, loved to be outside playing,” “loved to ride his bike, chase ar ound his brother,” “loved football,” “did very well in middle school, elementary, A, B, C student,” “got around some of the wrong crowd” during high school, work ed for the family business, and had “talked about some of his future plans and what he wanted to do with his life” on the dayof the shooting. Defendant claims that this testimony was irrelevant and improperly inject ed sympathy for the victim.-8- However, when reviewed in contex t, it is apparent that a portio n of this brief testimony was responsive to defendant’s theory at trial—it rebutted defendant ’s assertion that the victim, Ruiz, and Bishop had been “following us . . . driving around wherever we were at, they were” on the day of and in the days before the shooting. Further, as indica ted below, any testimony that might have exceeded this responsive sc ope represented error that was presumptively cured in light of the trial court’s express and specific instruction that sympathy could not impact the jury’s decision. Second, with respect to Specialist Latham’s testimony, we disagree with defendant’s argument that the prosecutor’s efforts to admit the testimony d iscussed in Section A of this opinion constituted prosecutorial error for the reasons cited a bove. Third, with respect to the allegedly improper argument use d by the prosecutor during closi ng, we reject defendant’s argument that this “irrelevant,” “unnecessary,” and “very graph ic” language improperly injected sympathy into the jury. Rather, the prosecutor simply argued f acts in evidence; specifically, the prosecutor’s argument was accurately premised on testimony prov ided by Dr. Joyce DeJong, who testified “as an expert in the area of forensic pathology.” Bahoda , 448 Mich at 282; Unger

, 278 Mich App at 240. While the prosecutor may not have used th e blandest possible language, we discern no error requiring reve rsal in that regard. Finally , with respect to defendant’s allegations of credibility vouching, the record reflects that t he prosecutor argued that Ruiz was a credible witness, not that he had any special knowledge regardi ng Ruiz’s truthfulness. Unger

, 278 Mich App at 240; Seals , 285 Mich App at 22. Therefore, each claim of prosecutorial e rror raised by defendant is meritless. Furthermore, even if we assume error, the jury instructions provided by the trial court presumptively cured any error, and defendant makes no effort to overcome this presumption. People v Abraham , 256 Mich App 265, 279; 662 NW2d 836 (2003) (“Jurors are presumed to follow their instructions, and instruc tions are presumed to cure most errors.”).

C. MRE 804(B)(1) & C ONFRONTATION RIGHTS

On appeal, defendant claims that the admission of Charles Wrig ht’s preliminary examination testimony during trial violated MRE 804(B)(1) and h is constitutional right to confront the witnesses ag ainst him. We disagree.

Rule 804(B)(1) of the Michigan Rules of Evidence provides that , where a witness is unavailable, testimony given by the person at an ear lier hearing is not excluded by the hearsay rule if the party against whom the test imony is offered had an opportunity and similar motive to develop the testimony through crossexamination. [ People v Meredith , 459 Mich 62, 66-67; 586 NW2d 538 (1998).]

“Even when evidence of an unavailable witness is admissible und er the Michigan Rules of Evidence, it is still necessary to determine whether use of the testimony would violate a defendant’s constitutional rightto confront prosecution witnes ses.” Id . at 67. Defendant’s arguments on appeal focus on whether the witness at issue, Char les Wright, was legally “unavailable” for purposes of MRE 804(B)(1) and the Confrontati on Clause.

A witness is “unavailable” pursu ant for purposes of MRE 804(B) (1) when he or she “is absent from the hearing and the proponent of a statement has be en unable to procure the declarant’s attendance . . . by process or other reasonable means, and in a criminal case, due diligence is shown.” MRE 804(a). Due diligence requires that the prosecution make a good--9- faith, reasonable effort to locate the witness for trial. People v Bean , 457 Mich 677, 684; 580 NW2d 390 (1998). Whether the prosecution made a good-faith, re asonable effort to locate a witness for trial depends on th e facts and circumstances of eac h case. People v McIntosh , 389 Mich 82, 87; 204 NW2d 135 (1973).

On appeal, defendant claims th at the prosecution’s efforts to procure Wright’s presence at trial was “too little too late.” Had Wright’s preliminary exam ination testimony been excluded and had the jury been instructed consistent with CJI2d 5.12, de fendant claims, this “may have tipped the scales in favor of ac quittal.” However, as the tria l court recognized, an arrest warrant remained outstanding for Wright at the time of trial, Wright’s mother repeatedly expressed her desire to keep her son from testifying, and the prosecution mad e a variety of other efforts, including, for example, persona lly visiting Wright’s mother’s r esidence less than one week before trial, to procure Wright’s presence. We agree that thes e efforts were sufficient for purposes of MRE 804(b)(1) and t he Confrontation Clause.

Defendant also claims that the Michigan Supreme Court’s decisi on in People v Dye , 431 Mich 58, 77-78; 427 NW2d 501 (1988), compels a different conclusion . However, that case is distinguishable because it involves scenarios where law enforce ment had, but failed to follow through on, a variety of leads with respect to three witnesses’ locations. The Supreme Court explained, “If the prosecution relies on out-of-state police to follow particular leads, and they make a diligent good-faith effort to find and produce the witne ss, then their efforts may discharge the prosecution’s obligation. In the instant case, h owever, there is no evidence that the out-of-state police made diligent good-faith efforts.” Id . at 77. In the case at bar, however, the

record reflects no leads that law enforcement failed to follow up on. Rather, lawenforcement repeatedly made contact with Wright’s mother and pursued his ar rest on an already-issued warrant. In short, it is unclear what further steps the prosec ution might have taken, and defendant does not articulate any either. Consequently, Dye does not control the outcome of this

case.

Defendant also claims that the disparity between the length of questioning other witnesses at preliminary examina tion and at trial reflects that cross-examination at preliminary examination simply is not sufficient for purposes of the Confro ntation Clause. This claim lacks factual and legal support. Factually, defense counsel’s cross- examination of Wright at preliminary examination was re latively thorough, and defendant makes no effort to identify areas that should have been further developed. Most notably, defense counsel secured Wright’s testimony that he, defendant, and Pulliam had received various threats during th e days leading up to the shooting, which supported defendant’s self-degree theory . Legally, Michigan courts have long recognized “that the prelimin ary examination testimony of an unavailable witness may be used at trial upon a showing that the testimony bears satisfact ory indicia of reliability,” and there is nothing to suggest that Wright’s preliminary-examination tes timony was anything but reliable.

Meredith , 459 Mich at 68.

Furthermore, even if assumed that the admission of Wright’s te stimony violated MRE 804(B)(1) and the Confrontation Clause, any error in this regar d was harmless beyond a

reasonable doubt. People v Shepherd , 472 Mich 343, 348; 697 NW2d 144 (2005) (“Harmless error analysis applies to claims concerning Confrontation Claus e errors, see Delaware v Van

Arsdall , 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674 (1986).”). Wh ile defendant claims-10- that the exclusion of this testimony and an instruction consist ent with CJI2d 5.12 “may have tipped the scales in favor of acquittal,” Wright’s testimony di d nothing more tha n corroborate the testimony of several other witnesses. Like many other witnesse s, he testified that Bishop and

defendant both had firearms and that he heard two shots: “one shot and it hit the van” “[a]nd

then . . . another shot but I don’t know who shot it.” The fac t that Wright denied knowing who

shot the second shot or where it went makes it difficult to asc ertain how prejudicial Wright’s testimony truly was. Therefore, any error, assuming one, was h armless.

D. SUFFICIENCY O F THE EVIDENCE

On appeal, defendant also argue s that the prosecution failed t o prove that he was guilty of second-degree murder beyond a reasonable doubt. Specifically, defendant claims that the prosecution did not specifically disprove his position that he was acting in self-defense. We disagree.

An insufficient-evidence c laim is reviewed de novo. People v Sherman-Huffman , 241 Mich App 264, 265; 615 NW2d 776 (2000). When determining wheth er there was sufficient evidence to support a jury’s verdict, this Court reviews the ev idence in a light most favorable to the prosecution to determine whe ther a rational trier of fact c ould find every elem ent of the crime at issue beyond a reasonable doubt. People v Hampton , 407 Mich 354, 368; 285 NW2d 284 (1979). In this case, defendant was convicted of second-degree murder, which required that the prosecution prove “(1) a death, (2) caused by an act of the def endant, (3) with malice, and (4) without justification or excuse.” People v Goecke , 457 Mich 442, 463-464; 579 NW2d 868 (1998). Thus, with respect to malice, the prosecution was requ ired to prove “the intent to kill, the intent to cause great bodily harm, or the intent to do an a ct in wanton and wilful disregard of

the likelihood that the natural t endency of such behavior is to cause death or great bodily harm.”

Id . at 464. However, because defendant introduced the theory of self-defense, the prosecution was additionally tasked with the burden of disproving that defe nse beyond a reasonable doubt. People v Fortson , 202 Mich App 13, 20; 507 NW2d 763 (1993).

Here, defendant introduced the concept of self-defense. Speci fically, he claimed that, based on the threats and presence of a firearm, defendant fired a warning shot and a shot at the

minivan out of fear for his lif e. The prosecution presented a variety of evidence rebutting this claim, and it is apparent that the jury rejected, at least to an extent considering the second-degree conviction, defendant’s self-defe nse claim. Viewing the eviden ce in a light most favorable to the prosecution, even considering the beyond-a-reasonable-doubt standard of proof, it is apparent

that the determination of whether defendant truly acted in self -defense was a credibility determination for the jury. Hampton , 407 Mich at 368 (“The resolution of credibility disputes is within the exclusive province of the trier of fact.”). Indeed, it is conceivable that defendant’s own testimony and statements, which included his acknowledgment that he fired a warning shot, undermined a claim that he feared for his life, and the jury wa s free to accept or reject this testimony. In essence, defendant’s appellate claim asks this C ourt to accept defendant’s theory of this case as fact, and this Court is not permitted to resolv e such a credibility dispute anew on appeal.

E. JAIL RECORDINGS-11- Lastly, defendant argues that the trial court’s decision to ad mit shortened recordings of jail calls violated MRE 106 and MRE 403. We disagree.

Preserved evidentiary issues are reviewed for an abuse of disc retion. Orr , 275 Mich App at 588. Constitutional errors are generally reviewed de novo. Rodriguez , 251 Mich App at 25. Unpreserved assertions of error like this one, however, are rev iewed for plain error affecting substantial rights. Carines , 460 Mich at 763-764.

MRE 106 provides as follows: “When a writing or recorded stat ement or part thereof is introduced by a party, an adverse party may require the introdu ction at that time of any other party or any other writing or r ecorded statement which ought in fairness to be considered contemporaneously with it.” “The premise of the rule is that a thought or act cannot be accurately understood without considering the entire context an d content in which the thought was expressed.” People v McReavy , 436 Mich 197, 214-215; 462 NW2d 1 (1990). This Court has previously recognized that a defendant’s opportunity to defend allegations during directexamination in lieu of playing certain recorded statements “had the potential to be more compelling evidence in favor of the defense than the tape itsel f . . . .” People v Herndon , 246 Mich App 371, 409; 633 NW2d 376 (2001).

Applying those rules to the facts of this case, we conclude th at that trial court’s decision did not constitute an abuse of discretion. First, MRE 106 does not require completeness in every circumstance, much less completeness as defendant describes it, i.e., every jail call because part of one or more jail calls were admitted; rather it provides tha t “an adverse party may require the introduction” of such evidence. Admitting such evidence is dis cretionary, and defendant does not identify why the trial court’ s failure to do so sua sponte was a decision that fell beyond the range of reasonable outcomes. Rather, defendant vaguely claims that context might have helped and offers to provide “the full recordings . . . upon request” if this Court wishes to attempt to support his claim for him. Furthermore, defendant’s testimony about the nature of his jail calls, rather than the language of the calls themselves, may well have been more compelling in his

favor. Herndon , 246 Mich App at 409.

Alternatively, defendant contends that the admission of this e vidence was unfairly prejudicial pursuant to MRE 403. MRE 403 provides as follows: “Although relevant, evidence may be excluded if its probative value is substantially outweig hed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless pres entation of cumulative evidence. ” “Rule 403 determinations are best left to a contemporaneous ass essment of the presentation, credibility, and effect of testimony by the trial judge.” People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008) (citation and internal quotation marks omitted). All admissible evidence is, to some extent, prejudicial; MRE 403 prohibits only the admission of evidence that is unfairly prejudicial. People v Crawford , 458 Mich 376, 398; 582 NW2d 785 (1998). Evidence may be unfairly p rejudicial if it injects extraneous considerations into trial, such as bias, sympathy, anger, or shock. People v Pickens

, 446 Mich 298, 336-337; 521 NW2d 797 (1994).

Applying those rules to the facts of this case, we conclude th at the admission of the partial recordings was permissible under MRE 403. As defendant recognizes in his brief on appeal, these recordings were “[t]he only evidence introduced t o substantiate the witness-12- intimidation charge . . . .” Thus, they were obviously probati ve. Nevertheless, defendant claims that their admission was unfairly prejudicial because context w ould have demonstrated that

defendant’s comments were an “e xpress[ion of] frustration.” De fendant does not elaborate further or make any mention of where in the jail calls support for this claim might be found, but

it seems that defendant’s own t estimony, in lieu of these recor dings, would have proved equally

favorable to defendant. Furthermore, MRE 403 bars the admissio n of unfairly prejudicial evidence; it does not require the admission of additional evide nce to make prejudicial evidence less prejudicial.

F. INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, defendant also argue s that trial counsel’s performance constituted ineffective assistance based on the issues raised in subsections A, B, C, a nd E of this opinion. However, in light of our conclusions above, we need not specifically addres s this argument. People v Riley (After Remand) , 468 Mich 135, 142; 659 NW2d 611 (2003) (“Ineffective assistan ce of counsel cannot be predicated on the failure to make a frivolous or meri tless motion.”).

III. CONCLUSION

Accordingly, for the reasons set forth above, we affirm defend ant’s convictions and

sentences.

Affirmed.

/s/ Colleen A. O'Brien

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens