If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

December 26, 2019

V No. 344075

Genesee Circuit Court

TYREE JAMAUL CULBERSON, LC No. 17-040841-FC

Defendant-Appellant.

Before: TUKEL, P.J., and SAWYER and RIORDAN, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of three counts of first-degree 

premeditated murder, MCL 750.316(1)(a), first-degree arson, MCL 750.72, possession with 

intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent 

to deliver methamphetamine, MCL 333.7401(2)(b)(i), felon in possession of a firearm, MCL 

750.224f, carrying a concealed weapon (CCW), MCL 750.227, and seven counts of possession 

of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced 

defendant as a second-offense habitual offender, MCL 769.10, to serve terms of imprisonment of 

life without parole for each murder conviction, 462 to 700 months for the arson conviction, 2 to 

30 years for each drug conviction, 12 to 90 months each for the felon-in-possession and CCW 

convictions, and two years for each felony-firearm conviction. Defendant appeals as of right. 

We affirm.

I. FACTS

This case arises from the deaths of Tiffany Loisell (Loisell), Kenneth Curler (Curler), and 

John Naum (Naum), whose bodies were recovered from a burning house on Woodrow Avenue in 

Flint on the morning of December 17, 2016. Autopsies revealed that the victims died from 

gunshot wounds. Prosecution witnesses testified that, before December 17, 2016, defendant was 

briefly residing at, and selling drugs from, the Flint house, when tensions developed between 

him and Loisell, who was a renter of the house. In particular, Loisell had recently stolen some 

money, some drugs, a black gun, and a telephone from defendant. In response, defendant 
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exhibited a persistent brooding anger, which included displaying a pink revolver and saying, just 

days before the victims’ deaths and arson, that he was “just gonna kill somebody.”

During a search of the home of defendant’s companion, which was conducted while 

defendant was present, a pink revolver was discovered hidden in the box spring of a bed. Expert 

testimony linked a spent bullet recovered from the body of one of the victims, and also a spent 

bullet recovered from the shooting scene, to the pink revolver. An expert in DNA analysis 

opined that her testing indicated “strong support” that defendant was a contributor to evidence 

obtained from that gun.

An arson specialist testified that arsonists typically use isopropyl alcohol or fingernail 

polish remover as effective accelerants that leave no sign of their use after a fire, and that empty 

bottles for alcohol and nail polish remover were found in the kitchen of the subject house. A 

fingerprint expert testified that defendant’s thumbprint was discovered on the nail polish remover 

bottle.

On appeal, defendant argues that he was denied a fair trial by the introduction of a

graphic autopsy photograph, belatedly revealed fingerprint evidence, and testimony expressing 

doubts that another suspect was involved in the murder of one of the victims, and also by the trial 

court’s decision to excuse the attorney for one of the victims from testifying with regard to 

attorney-client communications. Defendant additionally argues that the evidence was 

insufficient to support his murder and arson convictions. Finding no error, we affirm.

II. PHOTOGRAPHIC EVIDENCE

Defendant argues that the trial court erred by admitting a photograph that defendant 

considers “gruesome.” We disagree that it was error to admit the photograph.

This Court reviews a trial court’s evidentiary decisions for an abuse of discretion. People 

v Martzke, 251 Mich App 282, 286; 651 NW2d 490 (2002); People v Ho, 231 Mich App 178, 

187; 585 NW2d 357 (1998). “A trial court abuses its discretion when its decision falls outside 

the range of reasonable and principled outcomes.” People v Waterstone, 296 Mich App 121, 

131-132; 818 NW2d 432 (2012). “A trial court also necessarily abuses its discretion when it 

makes an error of law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). 

“[A] trial court’s decision on a close evidentiary question ordinarily cannot be an abuse of 

discretion.” People v Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011) (quotation 

marks and citation omitted).

“Generally, all relevant evidence is admissible at trial.” People v Aldrich, 246 Mich App 

101, 114; 631 NW2d 67 (2001). Evidence is relevant if it has “any tendency to make the 

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

less probable than it would be without the evidence.” Martzke, 251 Mich App at 293 (citation 

and quotation marks omitted). “Under this broad definition, evidence is admissible if it is 

helpful in throwing light on any material point.” Aldrich, 246 Mich App at 114. 

Under MRE 403, however, relevant evidence “may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 
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the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.” “MRE 403 does not prohibit prejudicial evidence; rather, it prohibits 

evidence that is unfairly prejudicial. In essence, evidence is unfairly prejudicial when there 

exists a danger that marginally probative evidence might be given undue weight by the jury.” 

People v Dixon-Bey, 321 Mich App 490, 513; 909 NW2d 458 (2017). “In reviewing the trial 

court’s decision for an abuse of discretion, the appellate court must view the evidence in the light 

most favorable to its proponent, giving ‘the evidence its maximum reasonable probative force 

and its minimum reasonable prejudicial value.’ ” People v. Head, 323 Mich. App. 526, 540–41, 

917 N.W.2d 752, 761 (2018) (citation omitted). “[T]he draftsmen intended that the trial judge be 

given very substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair 

prejudice’ on the other, and that the trial judge should not be reversed simply because an 

appellate court believes it would have decided the matter otherwise.” Id. (citation omitted). 

When addressing the admissibility of photographs, this Court held in People v Anderson, 

209 Mich App 527, 536; 531 NW2d 780 (1995):

Photographs are admissible if they are substantially necessary or instructive to 

show material facts or conditions. Photographs are not inadmissible merely 

because they may be gruesome and shocking. However, the trial court should 

exclude those that could lead the jury to abdicate its truth-finding function and 

convict on passion alone. 

Photographs may “also be used to corroborate a witness’ testimony” and “[g]ruesomeness alone 

need not cause exclusion.” People v Mills, 450 Mich 61, 76; 537 NW2d 909, 917 (1995), mod 

450 Mich 1212 (1995). Finally, “[p]hotographs depicting the nature and extent of a victim’s 

injuries may be probative of the defendant’s mental state.” Head, 323 Mich App at 541.

At trial, during the testimony of the forensic pathologist who performed autopsies on the 

bodies of the three victims, defense counsel objected to introduction of one of the autopsy 

photographs on the grounds that it was “kind of ghastly” and “pretty much a horror effect.” The 

challenged image depicted the face of Loisell, and the expert wished to use the image to assist 

him in explaining how that victim was both shot in the head and then exposed to the house fire. 

The trial court overruled the objection. After the image was admitted into evidence, the expert 

described it as follows:

So, we’ve cleaned up her face and you’re looking at her face area. And so, you 

can see around her eyes there’s sort of that black and blue color, okay? And then 

in the left eye, which is toward the top of the screen you can see sort of a red pink 

area. That’s the entrance wound . . . that entered and went through the brain.

In our view, the challenged photograph is neither shocking nor otherwise inherently 

prejudicial. The photograph was useful to the expert witness and was probative evidence of both 

the shooter’s intent and the victim’s exposure to a house fire. Because the photographic 

evidence of which defendant complains offered a clear depiction of one victim’s gunshot wound 

and surroundings, and also illustrated some of the trauma resulting from exposure to the house 

fire, it was probative of the nature and results of some of the criminal conduct at issue. Because 

the evidence reflected the plain realities of the situation, the risk of “unfair prejudice” was slight 
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and thus did not “substantially outweigh[]” the probative value of the evidence, MRE 403 

(emphasis added), particularly after “giving ‘the evidence its maximum reasonable probative 

force and its minimum reasonable prejudicial value.’ ” Head, 323 Mich App at 540-541 (citation 

omitted).

Defendant also raises the procedural argument that the trial judge erred by deferring to 

the expert witness’s opinion concerning the need for the challenged photograph, thus failing to 

exercise its own discretion. See People v Stafford, 434 Mich 125, 134; 450 NW2d 559 (1990) 

(holding that a trial court’s failure to exercise its discretion, when properly asked to do so, is 

itself an abuse of discretion). But our reading of the transcript does not compel such a cynical 

view of how the trial judge responded to the objection. The trial judge weighed both defense 

counsel’s concerns regarding a “ghastly . . . horror effect,” and the prosecuting attorney’s 

arguments that under the circumstances, showing that the person depicted suffered the results of 

arson along with a gunshot wound. The trial judge then stated “[i]f that’s what [the forensic 

pathologist] needs, I’m gonna let him decide.” Notwithstanding the trial judge’s deferential 

wording, the record does not suggest that the trial judge eschewed examining the challenged 

image itself. Rather, the trial judge independently determined that the photograph was 

admissible and permitted the forensic pathologist to explain why the admission of the 

photograph would be helpful to the witness in explaining his testimony. However, the record 

fails to establish that the trial judge permitted the forensic pathologist to determine whether the 

photograph was admissible. Instead, the record establishes that the trial judge deferred to the 

forensic pathologist’s judgment as to whether the photograph was necessary for the jury to see, 

in order to understand the expert’s testimony. Accordingly, we take the trial judge’s announced 

deference to the expert as support for the expert’s presentation of important information to the 

jury, rather than as an abdication of the trial judge’s responsibility to weigh probative effect 

against the risk of unfair prejudice. Thus, the trial judge did not err by admitting the photograph 

into evidence.

III. ATTORNEY-CLIENT CONFIDENTIALITY

Defendant argues that the trial court erred by permitting Curler’s attorney to invoke the 

attorney-client privilege on Curler’s behalf and, accordingly, to not testify at trial about an 

altercation between Curler and Curler’s former-wife. We disagree.

This Court reviews a trial court’s evidentiary decisions for an abuse of discretion. 

Martzke, 251 Mich App at 286. “Whether the attorney-client privilege applies to a 

communication is a question of law” subject to review de novo. Krug v Ingham Co Sheriff’s 

Office, 264 Mich App 475, 484; 691 NW2d 50 (2004). Constitutional issues are also reviewed 

de novo. People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999).

An attorney has a broad general duty not to “reveal a confidence or secret of a client.” 

MRPC 1.6(b)(1). The attorney-client privilege shields an attorney from being compelled to 

disclose client information in legal proceedings. See MRE 501 (“Privilege is governed by the 

common law, except as modified by statute or court rule.”). This evidentiary privilege inheres in 
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the constitutional rights against self-incrimination1 and to assistance of counsel.2 “The attorneyclient privilege is one of the oldest recognized privileges for confidential communications. The 

privilege is intended to encourage full and frank communication between attorneys and their 

clients and thereby promote broader public interests in the observance of law and the 

administration of justice.” Swidler & Berlin v United States, 524 US 399, 403; 118 S Ct 2081; 

141 L Ed 2d 379 (1998) (quotation marks and citations omitted).

“The scope of the privilege is narrow; it applies only to confidential communications by 

the client to his attorney, which are made for the purpose of obtaining legal advice.” Krug, 264 

Mich App at 484-485 (quotation marks and citations omitted). “[T]he general rule is that 

attorney-client privilege continues after death.” Swidler & Berlin, 524 US at 406.

At trial, one of defense counsel’s strategies was to suggest that someone other than 

defendant killed Loisell, Curler, and Naum. In hopes of showing that a severe state of animosity 

existed between Curler on one hand, and Curler’s former-wife and her intimate companion Bruce 

Benson (Benson), on the other hand, counsel sought to call an attorney who had represented 

Curler in an unrelated matter to offer information gleaned from that representation. Specifically, 

in an e-mail to the Genesee County managing assistant prosecuting attorney less than one month 

before Curler was killed, Curler’s attorney expressed her client’s negative views regarding the 

prosecutor’s decision to not charge Curler’s former-wife in connection with an episode of 

domestic violence in which the former-wife allegedly stabbed Curler several times. In that 

email, counsel claimed that her client had long received serious threats from his former-wife and 

Benson. Curler’s attorney resisted revealing any such information, explaining as follows:

I received a subpoena to testify in this matter from [defense counsel]. I 

represented Mr. Curler relative to . . . a child protective proceeding prior to his 

death. I believe that his privilege about any conversations I had with him, what I 

did on his behalf, any permission I had to communicate with other attorneys 

regarding his case, all of those communications I believe the privilege survives 

his death and he’s not able to waive it. I would be disinclined to answer any 

questions regarding my representation of him, my conversations with him, or 

even my conversations with third parties relative to that because I don’t believe he 

can waive his privilege.

Defense counsel responded as follows:

Well, I would agree that with regard to anything Mr. Curler told her, even 

if she discussed it with the prosecuting attorney, those things would be privileged 

and the privilege does belong to Mr. Curler who obviously is not here to waive. 

However, contained within this communication that she sent, there are some 

things that I believe privilege does not apply to.

 1 US Const, Ams V & XIV; Const 1963 art 1, § 17.

2 US Const, Am VI; Const 1963, art 1, § 20.
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After entertaining further arguments, the trial court announced that it was “going to recognize 

[the attorney-client] privilege and not require her to testify.”

Curler’s former-wife testified at trial. She stated that she and Curler had two young sons, 

and that Curler had been mentally and physically abusive and aggressive, but also that Curler had 

a personal protection order against her. Curler’s former-wife also admitted in her testimony that 

she had stabbed Curler, adding that Curler had received “two non-defensive wounds.”

3

 Benson 

also testified. Both flatly denied any involvement in Curler’s death.

In this case, defendant points out that information offered to an attorney to relay to a 

prosecuting authority in hopes of encouraging criminal proceedings is neither obviously 

confidential in nature nor obviously disclosed to the attorney for the purposes of obtaining legal 

advice. We believe, however, that despite couching its explanation in terms of the privilege 

against testifying, the trial court was in fact more generally respecting the broad duty of attorneyclient confidentiality, and that the trial court merely stressed the implications of the privilege for 

trial testimony because that was the point at issue in trial. The trial court properly anticipated 

that asking Curler’s attorney to testify concerning the communications that led to the e-mail sent 

to the prosecutor’s office could easily have touched on strategy concerning litigation over the 

young sons of Curler and his former-wife, matters which clearly were privileged. Further, that email was a piece of advocacy presumably presenting Curler’s account of his former-wife’s 

behavior in a light least favorable to her, which in turn was based on privileged communications 

between Curler and his former attorney. Under the circumstances presented, the trial court did 

not abuse its discretion by declining to parse additional communications between Curler and his 

lawyer, which were only potentially non-privileged, for the purpose of effectuating a waiver of 

the privilege, particularly in light of the fact that Curler was not present to waive the privilege. 

Furthermore, defendant was not prejudiced by the non-admission of the communications 

between Curler and his previous attorney, because defendant had an opportunity to cross 

examine Curler’s former-wife and Benson at trial. Defense counsel took advantage of that 

opportunity to ask Curler’s former-wife about the violence between herself and Curler, and to 

ask Benson about his low opinion of Curler. As such, defense counsel was able to present the 

substance of what he sought to prove, i.e., that due to long-standing animosity and an admitted 

history of violence, there were two other persons, other than defendant, who might have 

murdered Curler. Moreover, any testimony by Curler’s attorney about what Curler had told her 

in regards to his former-wife having attacked him would have been inadmissible hearsay. 

“[H]earsay is an unsworn, out-of-court statement that is offered in evidence to prove the truth of 

the matter asserted.” People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013) (citations and 

quotation marks omitted). The proposed testimony of Curler’s attorney regarding Curler’s 

former-wife’s assault of him surely would have been offered for the truth of the matter asserted, 

and as such, was inadmissible hearsay. Defendant, however, argues that these hearsay 

statements were admissible because their omission would deprive him of due process. But

defendant’s right to present a defense only extends to relevant and admissible evidence. See 

 3 Curler’s former-wife stabbed him 11 times, including twice in the back.
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People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984). We are unaware of any hearsay 

exceptions that would have made the testimony of Curler’s attorney admissible over an 

otherwise valid hearsay objection, and defendant failed to make any such arguments on appeal. 

Thus, any argument that the proposed testimony of Curler’s attorney would have fallen within an 

exception to the hearsay rule and thus would have been admissible is abandoned. See People v 

Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001) (holding that “[a]n appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims”); People v Piotrowski, 211 Mich App 527, 530; 536 NW2d 293 (1995) (holding that 

“by failing to refer this Court to any authority supporting her position, [the defendant] has 

effectively abandoned the issue.”). 

Defendant alternatively argues that, to the extent that the trial court was obliged to 

recognize the existence of any attorney-client privilege or confidentiality, such privilege or 

confidentiality should not have been absolute, but instead should have yielded to his need for 

such information. The United States Supreme Court has acknowledged that sometimes a 

recognized privilege against disclosure must “give way” where the information at issue “is 

relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause 

. . . .” Roviaro v United States, 353 US 53, 60; 77 S Ct 623; 1 L Ed 2d 639 (1957). 

Nevertheless, it is well-established that “the [attorney-client] privilege, where it exists, is 

absolute.” Diversified Indus, Inc v. Meredith, 572 F2d 596, 602 (CA 8 1977). There is no basis 

for instead holding that the privilege is merely conditional.

IV. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to convict him of first-degree 

premeditated murder and first-degree arson. We disagree.

A valid criminal conviction requires proof beyond a reasonable doubt of every element of 

every crime. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). A challenge to the 

sufficiency of the evidence to support a criminal conviction presents a question of law subject to 

review de novo. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). When 

reviewing the sufficiency of evidence in a criminal case, a reviewing court must view the 

evidence of record in the light most favorable to the prosecution to determine whether a rational 

trier of fact could find that each element of the crime was proved beyond a reasonable doubt. Id.

Defendant concedes, for purposes of this appeal, that the evidence was sufficient to 

establish that the crimes of murder and arson were committed, but disputes that it was sufficient 

to prove his identity as the perpetrator. See People v Yost, 278 Mich App 341, 356; 749 NW2d 

753 (2008) (the identity of the offender “is an element in every offense”). Defendant failed to 

argue that there was insufficient evidence for any of his other convictions. Thus, we will only 

address the identity element for defendant’s first-degree premeditated murder and first-degree 

arson convictions.

“Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to 

prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). 

Defendant, however, does not challenge the various pieces of evidence showing his extreme 

animosity toward one of the victims, tying him to the gun used in the homicides, and linking him 
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to the empty bottle of accelerant found at the scene of the arson. This evidence proved that 

defendant had a motive and tied him to both the murders and the arson. Rather than discussing 

this evidence, however, defendant protests that an “abundance of evidence” demonstrated that 

several drug dealers visited, and sometimes resided at, the address in question during periods up 

to the time of the instant crimes, and defendant further asserts that “[a]t the time of the trial most 

of them were unidentified and not investigated by the police.” Defendant additionally claims 

that “[a]t least two of the three victims had life styles that would generate animosity towards 

them by others.” Defendant thus completely ignores the standard of review, which requires that 

we evaluate the evidence in the light most favorable to the prosecution, and that we not reweigh 

it; showing that others might have had motives for acting against one or more of the victims does 

nothing to undermine the evidence supporting defendant’s guilt, when viewed under the proper 

standard. 

In suggesting in particular that Benson might have been the perpetrator, defendant 

protests that Benson relied on the statements of disreputable persons to prove his whereabouts at 

the time of the crimes, and complains about the limited extent to which Benson was investigated. 

But just as reasons to suspect others do not themselves constitute valid challenges to the 

sufficiency of the evidence in connection with defendant, neither does setting forth ways in 

which further investigation of other suspects might have been attempted. “ ‘Even in a case 

relying on circumstantial evidence, the prosecution need not negate every reasonable theory 

consistent with the defendant’s innocence, but need merely introduce evidence sufficient to 

convince a reasonable jury in the face of whatever contradictory evidence the defendant may 

provide.’ ” People v Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002), quoting People 

v Konrad, 449 Mich 263, 273 n 6; 536 NW2d 517 (1995). As noted, viewing the evidence in the 

light most favorable to the prosecution means disregarding all indications that someone other 

than defendant committed the murders and the arson in question. Consequently, only the 

evidence connecting defendant to the murders and the arson should properly be considered. In 

light of the evidence of defendant’s motive, and his association with items used in the murders 

and arson, there was more than sufficient evidence for a jury to find, beyond a reasonable doubt, 

that defendant was guilty of those offenses. 

Defendant additionally suggests that the conduct of the police was “peculiar,” citing their 

investigation of a suspect who physically resembled defendant, and the initial failure, then 

subsequent success, in finding the pink gun. Such protestations, however, relate to how the factfinder at trial could have determined to evaluate the evidence, but again fail to address the 

evidence in the light most favorable to the prosecution, the standard by which we are required to 

evaluate the evidence. 

Defendant implies that witnesses picked him out of a live lineup as the result of 

suggestiveness. But a challenge to identification procedures4 is different in kind from a 

 4 See, e.g., People v Gray, 457 Mich 107, 115; 577 NW2d 92 (1998); People v McCray, 245 

Mich App 631, 639; 630 NW2d 633 (2001); People v Barclay, 208 Mich App 670, 675; 528 

NW2d 842 (1995).
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challenge to the sufficiency of the evidence, and defendant offered no such challenge below, and 

included none in his statement of the questions presented on appeal.5 Thus, we decline to 

address this issue.6

V. FINGERPRINT EVIDENCE

Defendant argues that the trial court erred by allowing the prosecution to introduce the 

fingerprint evidence linking defendant to the accelerant container discovered in the kitchen of the 

house where the arson had taken place, on the ground that the prosecution did not timely disclose 

such evidence, in violation of the discovery rules. We disagree.

“We review a trial court’s decision regarding the appropriate remedy for noncompliance 

with a discovery order for an abuse of discretion.” See People v Davie (After Remand), 225 

Mich App 592, 597-598; 571 NW2d 229 (1997).

Whether a trial court abused its discretion regarding the appropriate remedy for a 

discovery violation requires “a balancing of the interests of the courts, the public, and the 

parties” and an “inquiry into all the relevant circumstances, including the causes and bona fides 

of tardy, or total, noncompliance, and a showing by the objecting party of actual prejudice.” 

Davie (After Remand), 225 Mich App at 598 (citations and quotation marks omitted). “Further, 

the complaining party must show that the violation caused him or her actual prejudice.” People 

v Greenfield, 271 Mich App 442, 455-456 n 10; 722 NW2d 254 (2006). 

When determining the appropriate remedy, a trial court must account for the fact that 

barring the admission of evidence is “an extremely severe sanction limited to an egregious case.” 

People v Burwick, 450 Mich 281, 294; 537 NW2d 813 (1995) (citation and quotation marks 

omitted). While the trial court has ample discretionary power in fashioning a remedy for a 

discovery violation, it should only order a continuance when one is specifically requested by the 

aggrieved party, People v Elston, 462 Mich 751, 764; 614 NW2d 595 (2000), and a “remedy 

which would put the objecting party in a better position than he would have enjoyed had 

disclosure been timely made would seem of dubious value, particularly if it does violence to 

other legitimate interests in the case,” Greenfield, 271 Mich App at 456 n 10 (citation and 

quotation marks omitted).

The parties do not dispute that the nail polish remover container from which defendant’s 

thumbprint was taken had been in police custody since December 2016; that the pertinent 

 5 An issue that is not raised within the statement of questions in the brief on appeal is not 

properly presented for purposes of appellate review. People v Unger, 278 Mich App 210, 262; 

749 NW2d 272 (2008). See also MCR 7.212(C)(5).

6 Furthermore, because defendant failed to make any argument that his conviction arose out of 

improper identification procedures, this argument is abandoned. See Watson, 245 Mich App at

587 (holding that “[a]n appellant may not merely announce his position and leave it to this Court 

to discover and rationalize the basis for his claims”).
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discovery deadline was in October 2017; and that the prosecution showed no intent to use 

evidence relating to that thumbprint until the trial was in progress. At the start of the eighth day 

of trial, the prosecuting attorney informed the trial court as follows:

[L]ast week . . . we realized that we had evidence that had not been sent to the lab 

and tested. It was a mix-up between the arson evidence and the homicide 

evidence. We didn’t have a property receipt, so when we got the property receipt 

we realized, actually, I think we saw the evidence before the property receipt, and 

we realized we didn’t have anything done with it. So, we sent it up to the lab last 

Tuesday . . . . It was a . . . fingernail polish remover bottle and an alcohol bottle 

that were found at the scene collected by the arson expert.

We sent it to the lab . . . as soon as we realized it hadn’t gone to the lab, 

and . . . they processed it that day for us. It came back with a fingerprint to the 

defendant on the fingernail polish remover bottle. Wednesday morning first 

thing, we did notify the Court as well as counsel that we had found that evidence, 

we had sent it to the lab, and the results of that evidence, and we are moving to 

have that admitted. . . .

Defense counsel objected, reminding the court that it had set a deadline for discovery and 

complaining of being “blindsided.” Defendant then asked that the new fingerprint evidence be 

excluded. Defense counsel further argued that the evidence in question was not properly deemed 

newly discovered, given that it had been available to the prosecution since the beginning of the 

investigation. In deciding to allow the prosecution to use the challenged evidence, the trial court 

explained as follows:

[I]n this case, apparently, these fingernail polish bottles were unknown, frankly, 

due to the prosecutor’s negligence, due to the police negligence. They should’ve 

been better organized with how they put their files together, but I don’t see it as 

ambush of the defendant because the People didn’t know about it either. It looks 

to me like each side is on equal position. And because the prosecutor discovered 

it last Tuesday I think, that has given everyone a week to prepare for this.

In this case, defendant protests that the late presentation of evidence that defendant’s 

thumbprint was found on the nail polish remover bottle “was a devastating surprise to the 

defense with little or no opportunity to rebut that late evidence,” and argues that what happened 

in this instance constituted a violation of his constitutional rights to due process. Defendant, 

however, does not explain how he might have rebutted the challenged fingerprint evidence if he 

had had more time to do so. Indeed, although defense counsel vigorously opposed introduction 

of the challenged evidence, counsel never accused the prosecution of deliberate delay or 

otherwise attempting a tactical advantage. Moreover, at no point did counsel request a 

continuance in order to develop some means of contesting the evidence. See People v. Jackson, 

498 Mich. 246, 278–80, 869 N.W.2d 253 (2015) (finding failure to comply with MRE 404(b)’s 

notice requirement harmless, because “while the defendant suffered ‘unfair surprise’ from the 

unexpected introduction of this testimony at trial, he was admittedly aware of [the witness’s] 

general version of events before trial,” and “he has not demonstrated how he would have 

approached trial or presented his defense differently had he known in advance that [the witness] 
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would be permitted to testify as she did.”); Elston, 462 Mich at 764 (holding that trial courts 

should not assume that a party wants a continuance unless that part explicitly asks for one). 

Additionally, defendant has not argued that the prosecution obtained the fingerprint evidence 

through improper means, nor has he suggested any prejudice to himself, other than the timing of 

when he was made aware of the fingerprint evidence for potential use at trial. While the 

prosecution was, as the trial court noted, negligent in its handling of the evidence at the time it 

was seized, the timing of the ultimate disclosure, a week before trial, did not constitute an 

“egregious circumstance” requiring the exclusion of the fingerprint evidence. The trial court did 

not abuse its discretion by admitting the evidence. 

VI. JUROR QUESTION

Defendant argues that the trial court erred, when it posed a question submitted by a juror 

to a witness, Ryan Miller (Miller), an acquaintance of Curler; the question asked whether Miller

believed that Benson killed Curler. We disagree.

At trial, Miller testified that, after the murders, he discussed with a police detective how 

Curler had been the target of some derogatory statements that Benson posted on an Internet 

social networking site. The trial court, relaying a juror’s question, asked Miller if he believed 

that Benson had any involvement with Curler’s death, and Miller answered, “Absolutely not. 

Not after a year of going through, no,” and added that Benson “didn’t get caught with a smoking 

gun.” The parties agree that this question originated with a juror. 

The parties additionally agree that defendant failed to object to the question at the trial 

court level and, therefore, that the issue is unpreserved. MCR 2.513(I) authorizes a court to 

“permit the jurors to ask questions of witnesses,” and directs a court electing to do so to “employ 

a procedure that ensures that such questions are addressed to the witnesses by the court itself, 

that inappropriate questions are not asked, and that the parties have an opportunity . . . to object 

to the question.” “[T]he questioning of witnesses by jurors, and the method of submission of 

such questions, rests in the sound discretion of the trial court.” People v Heard, 388 Mich 182, 

188; 200 NW2d 73 (1972).7 Unpreserved issues, however, are reviewed for plain error. People 

v Cain, 498 Mich 108, 116; 869 NW2d 829 (2015).

To avoid forfeiture under the plain error rule, three requirements must be met: 1) 

error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the 

plain error affected substantial rights. The third requirement generally requires a 

showing of prejudice, i.e., that the error affected the outcome of the lower court 

proceedings. It is the defendant rather than the Government who bears the burden 

 7 Heard was decided by this Court before November 1, 1990, and, therefore, has no precedential 

authority. See MCR 7.215(J)(1). We find Heard persuasive regarding the standard of review for 

preserved challenges to jury questions at trial, particularly in light of MCR 2.513(I), which 

permits but does not require a trial court to allow jury questions. Thus, MCR 2.513(I) clearly 

makes such a decision discretionary.
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of persuasion with respect to prejudice. Finally, once a defendant satisfies these 

three requirements, an appellate court must exercise its discretion in deciding 

whether to reverse. Reversal is warranted only when the plain, forfeited error 

resulted in the conviction of an actually innocent defendant or when an error 

seriously affected the fairness, integrity or public reputation of judicial 

proceedings independent of the defendant’s innocence. [People v Carines, 460 

Mich 750, 763-764; 597 NW2d 130 (1999) (quotation marks, citations, and 

brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the 

lower court proceedings.” People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612 (2014) 

(quotation marks and citation omitted). Finally, the trial court’s interpretation of statutes and 

court rules is reviewed de novo. People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 

(2004).

“[A] witness cannot express an opinion on the defendant’s guilt or innocence of the 

charged offense.” People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013) (citation and 

quotation marks omitted). However, Miller did not offer an express opinion about defendant’s 

guilt or innocence, only Benson’s. While the question posed to Miller could be taken as asking 

indirectly about his opinion regarding defendant’s guilt, to do so would require a chain of 

inferences: that either defendant or Benson was guilty; that defendant ruled out Benson; and 

therefore it was left as an inference, given that defendant was the only other possible perpetrator, 

that Miller thought defendant guilty. We decline to read the question in such an attenuated 

fashion. Moreover, even if we did interpret the question in the manner in which defendant 

suggests, we nevertheless would find that the question was not outcome determinative, in light of 

the evidence of defendant’s connection to the murder weapon and the substance used to carry out 

the arson.8

 8 We note that as a general matter, a witness’s opinions are not admissible, MRE 701, and a 

witness may only offer an opinion on an ultimate issue, such as a person’s guilt or innocence, if 

the underlying opinion itself is admissible, MRE 704. Accordingly, while it is settled that “a

witness cannot express an opinion on the defendant’s guilt or innocence of the charged offense,” 

Fomby, 300 Mich App at 53 (citation and quotation marks omitted), it also is the case that a 

witness may not express an opinion on the guilt or innocence of any other person, either. Thus, a 

question such as that asked of Miller should not be posed and trial courts should not permit such 

testimony as regards any person. However, because defendant does not argue on appeal that it 

was improper for Miller to offer an opinion about any person other than defendant, we do not 

base our decision on the impropriety of the question. See Tingley v. Kortz, 262 Mich App 583, 

588, 688 NW2d 291 (2004) (“Ordinarily, we do not address issues not raised below or on appeal, 

or issues that were not decided by the trial court.). Rather, if the question of whether it was 

improper for Miller to express an opinion about Benson’s guilt or innocence had been properly 

presented, we would be compelled to find, in accordance with our resolution of other arguments 

regarding Miller’s testimony which defendant did raise, that any error in the admission of 
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Defendant further argues that Miller’s reference to the lack of a “smoking gun” in 

connection with Benson constituted an opinion that defendant was guilty, on the ground that 

defendant was the only suspect linked to the firearm connected with the murders. We already 

have noted the impropriety of seeking a witness’s opinion. Nevertheless, given defendant’s 

connection to the murder weapon and the nail polish remover used to set the fire, any error in the 

admission of the opinion necessarily was harmless. See MCL 769.26.

VII. DEFENDANT’S SUPPLEMENTAL BRIEF ON APPEAL

Defendant filed a supplemental brief on appeal on October 17, 2019. Defendant raised 

eight new arguments in his supplemental brief on appeal.9 We have carefully considered the 

arguments raised in the supplemental brief, and find that they are entirely without merit, and thus 

do not merit further discussion by this Court. Thus, we decline to address them further.

Affirmed.

/s/ Jonathan Tukel 

/s/ David H. Sawyer 

/s/ Michael J. Riordan 

 

Miller’s opinion could not have been outcome determinative, given the strength of the evidence 

against defendant. See MCL 769.26; MRE 103(d). 

9 Specifically, defendant argued that (1) the trial judge invaded the province of the jury when he 

referred to decedents as “victims,” (2) the trial judge invaded the province of the jury when he 

confirmed that witnesses identified defendant in court, (3) defense counsel was ineffective 

because he failed to interview prosecution witnesses before trial, (4) there was insufficient 

evidence to convict defendant of possession of a firearm during the commission of a felony, (5) 

the trial judge erred by ordering his sentences to run concurrently when they should have run 

consecutively, (6) the trial court erred by sentencing defendant to “life” instead of “life without 

parole” for his first-degree premeditated murder convictions, (7) the trial court erred by failing to 

resolve the issue of restitution at sentencing, and (8) an evidentiary hearing is required to 

determine whether defendant’s trial counsel was ineffective.