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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UNPUBLISHED 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’BRIEN, P.J., and SERVITTO and STEPHENS, JJ. 

PER CURIAM. 

 Daquan Andrew Pritchett was convicted by a jury of second-degree murder, MCL 

750.317, possession of a firearm during the commission of a felony, 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 conviction and 5 to 10 years for the witness retaliation conviction as well 

as a consecutive prison term of 2 years for the firearm conviction. He appeals as of right his 

October 19, 2015 judgment of sentence. We affirm. 

I. FACTUAL BACKGROUND 

 Christopher Lee Adams was shot and killed by defendant on July 23, 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 Wright, and Darrion Pulliam. On 

July 21, 2014, two days before the shooting, the victim and Ruiz met with Tony Briones, Wright, 

and Pulliam to sell them marijuana. The victim and Ruiz gave Briones, Wright, and Pulliam the 

marijuana; Briones, Wright, and Pulliam handed the victim and Ruiz what they believed was a 

$100 bill. After both groups of men left the transaction, however, 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 realizing 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 apparently 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, “was asking questions to Daquan asking him if he’d see some guys 

running around o[r] if he heard of anything, if he’d let him know,” but defendant “said he hadn’t 

seen nothing . . . .” 
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 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 that included Wright, “on the porch” of a home on Mt. Olivet Rd. 

in Kalamazoo, Michigan. Defendant, Ruiz, and Bishop apparently came 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 individuals remained on the porch and 

“pretty much just told her to just keep going straight.” Disappointed with the outcome of this 

exchange, the four decided to continue “down the road” but “ended up coming back” and 

“started yelling, talking smack” and “telling ‘em to meet us in the street, calling ‘em pussies, you 

know.” The individuals on the porch “didn’t really do nothing” in response to the yelling and 

name calling. 

 The next day, on July 23, 2014, Adams, Ruiz, Bishop, and Sootsman again decided to 

travel around the area in Sootsman’s minivan. In doing so, they returned to Mt. Olivet Rd. and 

“saw Charles and Daquan walking down the road and Darrion.” According 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 around and pulled up on them.” Ruiz 

explained the remainder of the confrontation, in pertinent part, as follows: 

 I went to go chase after . . . I can’t remember who it was, [but] it wasn’t 

the flat top kid [Wright]. I went to go chase after Darrion cause he was running, 

to go after him. And I took a couple steps and I heard Chris say he’s got a gun. 

And I stopped and turned around, ran and dove back into the van. 

* * * 

 Well, when I heard him say that, I had stopped frozen in my tracks and 

went to go turn around and I could see Daquan standing there. Well, I have 

peripherals in my eye. I could 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 minute. 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 up 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 pathology,” two factors led to Adams’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-defense. At trial, defendant acknowledged that he obtained a firearm, 
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which he described as “a little itty-bitty gun, like the size of [his] palm,” the day before the 

shooting “[c]ause [he] was scared, you know.” Defendant acknowledged 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, defendant voluntarily went to law 

enforcement “to set the record straight” because “[h]e wasn’t happy with the media and how they 

portrayed him,” according to a staff lieutenant with the Kalamazoo Department of Public Safety. 

Defendant then proceeded to make multiple statements to law enforcement, during which he 

defended his actions as having been done during “a black-out” or in self-defense. 

 Defendant was subsequently charged with first-degree murder, MCL 750.316, and felony 

firearm, MCL 750.227b. On August 20, 2014, the day after the preliminary examination on 

those charges, defendant spoke with a female named Ostayvionna Williams and made what the 

prosecution alleged were requests “to physically assault two witnesses 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 to “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 motion 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 described above, and this appeal followed. 

II. ANALYSIS 

A. SPECIALIST LATHAM’S TESTIMONY 

 On appeal, defendant first argues that he was deprived of his constitutional right to a fair 

trial because Gary Latham (“Specialist Latham”), a crime lab specialist with the Kalamazoo 

Department of Public Safety, was permitted to offer expert testimony regarding firearms without 

being qualified as an expert. We disagree. 

 Preserved evidentiary issues are reviewed for an abuse of discretion. People v Orr, 275 

Mich App 587, 588; 739 NW2d 385 (2007). However, because these arguments were not 

properly preserved for appellate review, they are reviewed for plain error affecting substantial 

rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Constitutional errors 

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 testimony by lay witnesses: 

 If the witness is not testifying as an expert, the witness’ testimony 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) helpful to a clear 

understanding of the witness’ testimony or the determination of a fact in issue. 
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MRE 702 governs the admissibility of expert testimony: 

 If the court determines that scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine a 

fact in issue, a witness qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of an opinion 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 reliably to the facts of the case. 

 As this Court has recognized before, the interplay between MRE 701 and MRE 702 when 

a police officer provides testimony based on his or her training 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 based on his training and experience without . . . being 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, arguing that this testimony 

required that the police officer be qualified as an expert. Id. at 76. 

 This Court analyzed this issue as follows: 

 Because Leach was testifying about delayed disclosure on the basis of 

knowledge, experience, and training, it would appear that his testimony 

constituted expert opinion testimony and not lay opinion testimony under MRE 

701, which is limited to opinions or inferences that are “rationally based on the 

perception of the witness” and that are “helpful to a clear understanding of the 

witness’ testimony or the determination of a fact in issue.” The 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 plaintiff’s claims that 

the trial court should not have admitted evidence under MRE 701, that expert 

testimony under MRE 702 was necessary, 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 the officer’s 

perceptions at the scene of the accident and because the opinion 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] testimony establishes 

that although his opinion in this case was consistent with conclusions he had 

drawn in other cases he had investigated, his past experience did 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 
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at which a building burned was improperly admitted as lay opinion testimony 

under MRE 701 because expert testimony was required and the fireman was not 

qualified as an expert. This Court held that the trial court did not abuse its 

discretion in admitting the opinion evidence regarding the speed and intensity of 

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

 [The fireman’s] conclusions were based on observation of 

the fire for over thirty minutes. The opinion testimony was limited 

to describing the fire in relation to other building fires [the

fireman] had witnessed. The reliability of his conclusions was

premised on his extensive experience in observing other building 

fires and investigating their causes. The testimony was of a 

general nature, without any reference to technical comparison of 

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 testimony was 

required, Leach was more than qualified to give an expert opinion on delayed 

disclosure to the extent of the testimony actually presented. He testified at length 

about his extensive knowledge, experience, training, and education concerning the 

sexual abuse of children. Leach has personally participated in the investigation of 

hundreds of criminal sexual conduct cases involving child victims. And he had 

received training in the investigation of cases involving delayed disclosure. With 

his background and experience in investigating child sex abuse cases and 

interviewing victims, Leach became knowledgeable regarding delayed disclosure, 

and, according to Leach, delayed disclosure is common and happens quite 

frequently with child victims. On this record, the disputed testimony 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 regard. 

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 testimony actually presented.”), 

Specialist Latham’s testimony supports a conclusion that he was sufficiently qualified to give the 

testimony at issue. At trial, Specialist 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 officer since 1998,” and that he was a “crime lab technician [from] 

2002 [until being] promoted to crime lab specialist in 2006”; that 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 analysis training, about 360 hours in 

traffic crash investigation training, over 150 hours in forensic video training, 300 hours training 
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in controlled substance examination . . . and 150 hours of training in firearms and shooting scene 

construction.” Based on this experience, education, and training, Specialist Latham then 

provided extensive testimony regarding 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 than qualified to give an expert 

opinion . . . to the extent of the testimony 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 knowledgeable regarding the differences 

between various types of firearms and bullets. It was this experience, education, training, and 

knowledge that he used to reach his opinion that the bullet recovered 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 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 reliably to the facts of the case—would not be satisfied in 

light of Specialist Latham’s experience, education, training, and knowledge. We therefore 

conclude that the admission of Specialist Latham’s testimony does not require reversal. 

 On appeal, defendant argues that, “[e]ven if Mr. Latham had been qualified as an expert 

witness, which is doubtful given his lack of specialized training, it is questionable whether his 

analysis of the bullet and hole in the van fender met the standards under MRE 702.” 

Specifically, he argues that Specialist Latham’s opinion in this regard was not based on sufficient 

facts or data, was not the product of reliable principles and methods, and that Specialist Latham 

had not applied the principles and methods reliably to the facts of the case. MRE 702. To 

support this position, defendant points to a variety of authorities reflecting what he implies are 

weaknesses in ballistics experts’ testimony and argues that “toolmark identification is highly 

subjective, unreliable, completely unscientific, subject to error, and lacking a precisely defined 

process . . . .” However, this Court has recognized the admissibility of ballistics experts’ 

testimony in the past, and we decline to express any disagreement 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 MRE 702 as defendant 

suggests, we nevertheless conclude that reversal is not required 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 shootout.” This position is simply 

inconsistent with the evidence presented by both parties and defendant’s trial theory. Defendant 

testified that he fired two shots, and he expressly acknowledged that one of his shots “was in the 

vicinity of [the minivan].” In fact, according to Detective Johnson, defendant “admitted that he 

actually shot twice at the people as he was running.” He explained 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. Conversely, no witnesses testified that it 

was possible that Tyler, not the defendant, actually shot the victim, as defendant now claims. 

Therefore, because any error was not outcome determinative, reversal is not required. 
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B. PROSECUTORIAL ERROR 

 On appeal, defendant also takes issue with four instances of alleged prosecutorial error. 

First, he argues that the prosecutor committed prosecutorial error when “he offered the irrelevant 

testimony of the decedent’s father, Charles Adams, describing his son’s personality as a young 

child and as he grew older.” Second, he argues that the prosecutor 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 vouch[ing] for the truthfulness of 

one of the state’s key witnesses, Christian Ruiz, in his closing argument.” We disagree in all 

four respects. 

 Generally, an assertion of prosecutorial error must be met with a contemporaneous 

objection. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). If it is not, review 

is precluded unless “an objection could not have cured the error, 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 resulted in the conviction of an 

actually innocent defendant or seriously 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 affecting substantial 

rights. Carines, 460 Mich at 763-764. 

 To find that prosecutorial error occurred, this Court must determine 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 and on a case-by-case basis. 

People v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010). A prosecutor’s argument may 

be based on admitted evidence as well as any reasonable inferences that may be drawn 

therefrom. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). This includes arguing 

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 for a witness’s credibility, meaning 

that he or she may not assert that he or she has special knowledge 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 prosecutorial error because 

each instance could have, but was not, met with a contemporaneous 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 reversal is not required. First, with respect to the victim’s father’s 

testimony, defendant takes issue with the father’s testimony that his son was “very fearless, 

loved to be outside playing,” “loved to ride his bike, chase around 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, worked for the family business, and had “talked about some of his 

future plans and what he wanted to do with his life” on the day of the shooting. Defendant 

claims that this testimony was irrelevant and improperly injected sympathy for the victim. 
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However, when reviewed in context, it is apparent that a portion 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 indicated below, any testimony that might 

have exceeded this responsive scope 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 discussed in Section A of this 

opinion constituted prosecutorial error for the reasons cited above. Third, with respect to the 

allegedly improper argument used by the prosecutor during closing, we reject defendant’s 

argument that this “irrelevant,” “unnecessary,” and “very graphic” language improperly injected 

sympathy into the jury. Rather, the prosecutor simply argued facts in evidence; specifically, the 

prosecutor’s argument was accurately premised on testimony provided 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 the blandest possible language, 

we discern no error requiring reversal in that regard. Finally, with respect to defendant’s 

allegations of credibility vouching, the record reflects that the prosecutor argued that Ruiz was a 

credible witness, not that he had any special knowledge regarding Ruiz’s truthfulness. Unger, 

278 Mich App at 240; Seals, 285 Mich App at 22. Therefore, each claim of prosecutorial error 

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 instructions are presumed to cure most 

errors.”). 

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

 On appeal, defendant claims that the admission of Charles Wright’s preliminary 

examination testimony during trial violated MRE 804(B)(1) and his constitutional right to 

confront the witnesses against 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 earlier hearing is not 

excluded by the hearsay rule if the party against whom the testimony 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 under the Michigan Rules of 

Evidence, it is still necessary to determine whether use of the testimony would violate a 

defendant’s constitutional right to confront prosecution witnesses.” Id. at 67. Defendant’s 

arguments on appeal focus on whether the witness at issue, Charles Wright, was legally 

“unavailable” for purposes of MRE 804(B)(1) and the Confrontation Clause. 

 A witness is “unavailable” pursuant for purposes of MRE 804(B)(1) when he or she “is 

absent from the hearing and the proponent of a statement has been 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-
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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, reasonable effort to locate a 

witness for trial depends on the facts and circumstances of each case. People v McIntosh, 389 

Mich 82, 87; 204 NW2d 135 (1973). 

 On appeal, defendant claims that the prosecution’s efforts to procure Wright’s presence at 

trial was “too little too late.” Had Wright’s preliminary examination testimony been excluded 

and had the jury been instructed consistent with CJI2d 5.12, defendant claims, this “may have 

tipped the scales in favor of acquittal.” However, as the trial 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 made a variety of other efforts, 

including, for example, personally visiting Wright’s mother’s residence less than one week 

before trial, to procure Wright’s presence. We agree that these efforts were sufficient for 

purposes of MRE 804(b)(1) and the Confrontation Clause. 

 Defendant also claims that the Michigan Supreme Court’s decision 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 enforcement 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 witness, then their efforts may 

discharge the prosecution’s obligation. In the instant case, however, 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, law enforcement 

repeatedly made contact with Wright’s mother and pursued his arrest on an already-issued 

warrant. In short, it is unclear what further steps the prosecution 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 examination and at trial reflects that cross-examination at preliminary 

examination simply is not sufficient for purposes of the Confrontation Clause. This claim lacks 

factual and legal support. Factually, defense counsel’s cross-examination of Wright at 

preliminary examination was relatively 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 the days leading up 

to the shooting, which supported defendant’s self-degree theory. Legally, Michigan courts have 

long recognized “that the preliminary examination testimony of an unavailable witness may be 

used at trial upon a showing that the testimony bears satisfactory indicia of reliability,” and there 

is nothing to suggest that Wright’s preliminary-examination testimony was anything but reliable. 

Meredith, 459 Mich at 68. 

 Furthermore, even if assumed that the admission of Wright’s testimony violated MRE 

804(B)(1) and the Confrontation Clause, any error in this regard 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 Clause errors, see Delaware v Van 

Arsdall, 475 US 673, 684; 106 S Ct 1431; 89 L Ed 2d 674 (1986).”). While defendant claims 
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that the exclusion of this testimony and an instruction consistent with CJI2d 5.12 “may have 

tipped the scales in favor of acquittal,” Wright’s testimony did nothing more than corroborate the 

testimony of several other witnesses. Like many other witnesses, 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 fact that Wright denied knowing who 

shot the second shot or where it went makes it difficult to ascertain how prejudicial Wright’s 

testimony truly was. Therefore, any error, assuming one, was harmless. 

D. SUFFICIENCY OF THE EVIDENCE 

 On appeal, defendant also argues that the prosecution failed to 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 claim is reviewed de novo. People v Sherman-Huffman, 241 

Mich App 264, 265; 615 NW2d 776 (2000). When determining whether there was sufficient 

evidence to support a jury’s verdict, this Court reviews the evidence in a light most favorable to 

the prosecution to determine whether a rational trier of fact could find every element 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 defendant, (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 required to prove “the intent to kill, 

the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of 

the likelihood that the natural tendency 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 defense beyond a reasonable doubt. 

People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993). 

 Here, defendant introduced the concept of self-defense. Specifically, 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 life. 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-defense claim. Viewing the evidence 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 was free to accept or reject this 

testimony. In essence, defendant’s appellate claim asks this Court to accept defendant’s theory 

of this case as fact, and this Court is not permitted to resolve such a credibility dispute anew on 

appeal. 

E. JAIL RECORDINGS 
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 Lastly, defendant argues that the trial court’s decision to admit shortened recordings of 

jail calls violated MRE 106 and MRE 403. We disagree. 

 Preserved evidentiary issues are reviewed for an abuse of discretion. 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 reviewed for plain error affecting 

substantial rights. Carines, 460 Mich at 763-764. 

 MRE 106 provides as follows: “When a writing or recorded statement or part thereof is 

introduced by a party, an adverse party may require the introduction at that time of any other 

party or any other writing or recorded 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 and 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 itself . . . .” People v Herndon, 246 

Mich App 371, 409; 633 NW2d 376 (2001). 

 Applying those rules to the facts of this case, we conclude that 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 that “an adverse party may require the 

introduction” of such evidence. Admitting such evidence is discretionary, 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 evidence was unfairly 

prejudicial pursuant to MRE 403. MRE 403 provides as follows: “Although relevant, evidence 

may be excluded if its probative value is substantially outweighed 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 presentation of cumulative evidence.” “Rule 403 determinations are 

best left to a contemporaneous assessment 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 prejudicial 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 that 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 to substantiate the witness 
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intimidation charge . . . .” Thus, they were obviously probative. Nevertheless, defendant claims 

that their admission was unfairly prejudicial because context would have demonstrated that 

defendant’s comments were an “express[ion of] frustration.” Defendant 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 testimony, in lieu of these recordings, would have proved equally 

favorable to defendant. Furthermore, MRE 403 bars the admission of unfairly prejudicial 

evidence; it does not require the admission of additional evidence to make prejudicial evidence 

less prejudicial. 

F. INEFFECTIVE ASSISTANCE OF COUNSEL 

 On appeal, defendant also argues that trial counsel’s performance constituted ineffective 

assistance based on the issues raised in subsections A, B, C, and E of this opinion. However, in 

light of our conclusions above, we need not specifically address this argument. People v Riley 

(After Remand), 468 Mich 135, 142; 659 NW2d 611 (2003) (“Ineffective assistance of counsel 

cannot be predicated on the failure to make a frivolous or meritless motion.”). 

III. CONCLUSION 

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

sentences. 

 Affirmed. 

/s/ Colleen A. O'Brien 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens