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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2017

v No. 330244 Kalamazoo Circuit Court DEVONTE DEMEER PARKER, LC No. 2015-000024-FC

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and M. J. K ELLY , JJ.

P ER C URIAM

. Following a jury trial, defenda nt, Devonte Parker, was convict ed of reckless driving causing death, MCL 257.626(4); failur e to stop at the scene of an accident resulting in serious impairment of a body function or death, MCL 257.617(2); third-d egree fleeing or eluding a police officer, MCL 257.602a(3)(a); and assaulting, resisting, or obstructing a police officer, MCL 750.81d(1). 1 Parker was concurrently sentenced to 7 years and 6 months to 15 years’ imprisonment for reckless drivi ng causing death, three to five years’ imprisonment for failure to stop, three to five years for third-degree fleeing or eluding a police officer, and 16 months to 2 years’ imprisonment for assaulting, resisting, or obstructing a police officer. He now appeals as of right. For the reasons sta ted in this opinion, we affirm.

I. BASIC FACTS

This appeal arises out of an a ltercation that started with Par ker playing music too loudly in an apartment complex parking lot. Kenneth Miller, a residen t at the apartment complex, went outside to confront Parker, who was inside a vehicle, about the music. Miller and Parker exchanged words, the police were called, and Miller blocked Par ker’s vehicle from leaving before the police arrived. Parker put the vehicle in drive andbegan to leave. Miller ended up on the hood of the vehicle, and Parker continued driving out onto the main road. Miller eventually became dislodged from the vehicle, sustained severe head injuri es, and died.

1 Parker was acquitted of second-degree murder, MCL 750.317.-2- II. SELF-DEFENSE

A. STANDARD OF REVIEW

Parker first argues that he was denied his due process rights because he established selfdefense for the reckless driving offense. He does not challeng e the sufficiency of the evidence for any of the requirements for reckless driving causing death; rather, he asserts that the prosecution presented insufficient evidence to disprove his cla im of self-defense. Challenges to the sufficiency of the evidence are reviewed de novo. People v Harverson , 291 Mich App 171, 177; 804 NW2d 757 (2010). The analysis is “whether a rational trier of fact could find that the evidence proved the essential elements of the crime beyond a re asonable doubt.” Id . at 175. In making this determination, we view “the evidence in the light m ost favorable to the prosecution.” Id . “All conflicts with regard to the evidence must be resolved in favor of the prosecution.” People v Wilkens , 267 Mich App 728, 738; 705 NW2d 728 (2005). Further, we will “not interfere with the jury’s assessment of the weight and credibil ity of witnesses or the evidence, and the elements of an offense may be established on the basis of circumstantial evidence and reasonable inferences from the evidence.” People v Dunigan , 299 Mich App 579, 582; 831 NW2d 243 (2013) (citations omitted).

B. ANALYSIS

“Due process requires that, to sustain a conviction, the evide nce must show guilt beyond a reasonable doubt.” People v Railer , 288 Mich App 213, 216; 792 NW2d 776 (2010). “Once a defendant raises the issue of self-defense and satisfies the in itial burden of producing some evidence from which a jury could conclude that the elements nec essary to establish a prima facie defense of self-defense exist, the prosecution must exclude the possibility of self-defense beyond a reasonable doubt.” People v Stevens , 306 Mich App 620, 630; 858 NW 2d 98 (2014) (quotation marks and citation omitted). In relevant part, the Self-Defens e Act, MCL 780.971 et seq ., provides as follows:

(1) An individual who has not or is not engaged in the commiss ion of a crime at the time he or she us es deadly force may use deadly fo rce against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the u se of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to a nother individual. [MCL 780.972(1 )(a).]

Here, Parker testified that he decided to leave because he feared for his life. However, the prosecution presented eviden ce to the contrary. There was testimony that Parker told his friend, Michelle Kirk, “You better get your ass out here, and g et . . . your neighbor [i.e., Miller] before I beat his ass.” Further, Parker expressed that he was leaving once the police were coming and told Kirk, “You guys need to get out [of] here, the cops are on their way, and I’m getting’ out of here.” A police detective testified that Parke r told him that he did not want to have police contact that night b ecause the vehicle was register ed to a friend who he believed to-3- have warrants. This evidence s uggests that Parker left out of fear of the police arriving rather than fear for his life.

Further, although Parker testified that he thought he heard Mi ller ask for a weapon, Parker testified that he never saw Miller with a weapon. An ey ewitness, Ryan Puma, expressed a desire to stay out of the argument between Miller and Parker. Miller’s wife testified that she told Miller to come inside since the police were on their way, but Miller stated that he was going to wait outside until the police arrived. This testimony sugge sts that there was not an imminent threat of death or great bodily ha rm to Parker and that the use of deadly force was unnecessary.

Moreover, even after initially d riving away from the parking s pace, Parker could have stopped driving so that Miller cou ld have safely gotten off the vehicle. The distance from the blood spots in the road to the ent rance of the apartment comple x was 1,220 feet, and to get to the main road the vehicle had to travel approximately 160.4 feet we st and 34.4 feet south. Thus, Miller traveled approximately 1,415 feet. Puma and Miller’s wi fe testified that Parker was driving at a high rate of speed with Miller on the hood of the vehicle, and even Kirk, who was on the phone with Parker, testified that the engine sounded like aracecar. When Parker spoke with the police, he never mentioned that he feared for his life. In addition, when Parker saw the police minutes after the incident, he fled. See People v Goodin , 257 Mich App 425, 432; 668 NW2d 392 (2003) (explaining that “evidence of flight is admissi ble to support an inference of ‘consciousness of guilt’ ”). Therefore, viewing the evidence i n a light most favorable to the prosecution, Harverson , 291 Mich App at 175, the evidence was sufficient to rebut Par ker’s claim of self-defense beyond a reasonable doubt, Stevens , 306 Mich App at 630.

Nevertheless, Parker argues that the jury found him not guilty of second-degree murder because he was acting in self-defense. He asserts that there w as no rational reason for the jury to not apply self-defense to his reckless driving causing death ch arge. We disagree. Parker assumes that the jury found that his self-defense theory was es tablished, but the record does not support his assumption. First, the jury verdicts were not nece ssarily inconsistent, given that the jury could have reasonably concluded that, although self-defens e did not apply, the prosecution had not established all the elements of second-degree murder. Second, as recognized by Parker on appeal, “inconsistent verdicts within a single jury trial ar e permissible and do not require reversal” in the absence of confusion by the jury, a misunderst anding of the instructions, or impermissible compromises. People v Putman , 309 Mich App 240, 251; 870 NW2d 593 (2015). “[J]uries are not held to any rules of logic nor are they requi red to explain their decisions.” Id

. (quotation marks and citation omitted; alteration in Putman ). Parker does not argue any of the circumstances explained in Putman . Rather, he acknowledges the permissibility of inconsistent verdicts and reverts back to his sufficiency argument, which, a s explained above, is without merit.

III. EXCLUSION OF EVIDENCE

Parker next argues that the tri al court abused its discretion in excluding evidence of Miller’s prior arrests and convi ctions for assault. Parker als o makes a conclusory argument that the abuse of discretion denied hi m a fair trial and due process of law.-4- After review of the record, we conclude that Parker waived thi s issue. “[W]aiver is the intentional relinquishment or abando nment of a known right.” People v Vaughn , 491 Mich 642, 663; 821 NW2d 288 (2012) (quotation marks and citation omitted; emphasis in Vaughn ). “A defendant who waives a right ext inguishes the underlying error and may not seek appellate review of a claimed violation of that right.” Id . Specifically, “[a] defendant should not be allowed to assign error on appeal to something his own counsel deemed proper at trial.” People v Green , 228 Mich App 684, 691; 580 NW2d 444 (1998). “To do so would allow a defendant to harbor error as an appe llate parachute.” Id

. The trial court, on numerous occasions, made clear that it was not foreclosing the possibility of allowing Parker’s lawyer to question Miller’s wi fe about the prior convictions. The trial court instead instructed Parker’s lawyer to provide l egal authority and notice if he wanted to try to use specific instances of conduct and prior co nvictions. Parker’s lawyer responded that he understood the instruction. However, Parker’ s lawyer never provided any authority, and he never subsequently argued the issue. Althoug h the reasons why Parker did not pursue this issue further are unc lear from the record, it is pl ausible that he did not pursue it due to his own specific instances of vi olence. Regardless of the reas on, Parker knew he had had the right to address the issue and subsequently raise it, but he ne ver exercised it. Accordingly, we conclude that Parker waived this issue. Vaughn , 491 Mich at 663.

IV. RIGHT TO AN IMPARTIAL JURY

A. STANDARD OF REVIEW

Last, Parker argues that he was denied the right to an imparti al jury (1) because the court allowed Juror Three to remain on the jury panel after Juror Eig ht reported that Juror Three was biased and (2) because the court failed to question the entire jury panel to see if any comments or Juror Three’s bias influenced the m. “The trial court’s decisio n whether to remove a juror is reviewed for an abuse of discretion,” and “[c]onstitutional iss ues, such as the right to a fair trial, are reviewed de novo.” People v Mahone , 294 Mich App 208, 215; 816 NW2d 436 (2011). “An abuse of discretion occurs when the court chooses an outcome th at falls outside the range of reasonable and principled outcomes.” Id . at 212.

B. ANALYSIS

“The United States and Michigan Constitutions guarantee a crim inal defendant a fair trial by an impartial jury.” People v Jackson , 292 Mich App 583, 592; 808 NW2d 541 (2011), citing US Const Am VI; Const 1963, art 1, § 20. “Consistent with a de fendant’s right to a fair and impartial jury, jurors may only consider the evidence that is p resented to them in open court.” People v Stokes , 312 Mich App 181, 187; 877 NW2d 752 (2015) (quotation marks a nd citation omitted). “[J]urors are presumed to be . . . impartial, until the contrary is shown,” and “[t]he burden is on the defendant to establish that the juror was not impartial or at least that the juror’s impartiality is in reasonable doubt.” People v Miller , 482 Mich 540, 550; 759 NW2d 850 (2008) (quotation marks and citation omitted; second alteration in Miller ). The Stokes Court explained:-5- Where the jury considers extraneous facts not introduced in evi dence, this deprives a defendant of his ri ghts of confrontation, cross-exam ination, and assistance of counsel embodied in the Sixth Amendment. To establish that the jury was influenced in a manner requiring reversal, a defendant must prove (1) that the jury was exposed to an extraneous influence, and (2) t hat this extraneous influence created a real and substantial possibility that [it] could have affected the jury’s verdict. [ Stokes , 312 Mich App at 187 (quotation marks and citations omitted).]

If a “defendant establishes thi s initial burden, the burden shi fts to the people to demonstrate that the error was harmless beyond a reasonable doubt.” People v Fletcher , 260 Mich App 531, 540; 679 NW2d 127 (2004) (quotation marks and citation omitted). Th e prosecution can establish that the error was harmless beyond a reasonable doubt “by provi ng that either the extraneous influence was duplicative of evidence produced at trial or the evidence of guilt was overwhelming.” Id . (quotation marks and citation omitted).

Here, the alleged extraneous influence was one of the jurors v iewing Parker’s father in an expensive, large vehicle. Juror Three observed Parker’s father outside the courtroom and apparently made a comment about her observation to the other ju rors. Thus, Parker established the first requirement that the jury was exposed to extraneous i nfluence. Juror Eight believed that Juror Three let this observation influence her views. However, when interviewed by the trial court, Juror Three expressly stated that she could be fair and impartial, was not biased one way or another, and was not influenced in her “process” by the obse rvation. Although Juror Eight reported otherwise, Juror Three i ndicated that she merely made her statement in order to get everyone back on track. The trial court found that the two jur ors merely had different perspectives and that it would not weigh Juror Eight’s credibil ity over Juror Three’s credibility. See generally People v Galloway , 259 Mich App 634, 638; 675 NW2d 883 (2003) (“This Court must give deference to the trial court’s factual findings, part icularly where the credibility of witnesses is involved.”). Moreover, the trial court emphasized that Juror Three, who was under oath, indicated that she could be fair and impartial. Juror Ei ght and Juror Three both indicated that they understood that they c ould only use the evidence pres ented in reaching a verdict. The trial court reminded the jury that only evidence from the trial could be used in reaching a verdict, that things heard or observed outside the courtroom were not ev idence, and that sympathy or prejudice must not influence the decision. See Mahone , 294 Mich App at 212 (“Jurors are presumed to follow their instructions. . . .”). Therefore, on this record, Parker has not met his burden of establishing that there was “a real and substantial p ossibility that [the extraneous influence] could have affected the jury’s verdict.” Stokes , 312 Mich App at 187 (quotation marks and citation omitted).

Finally, Juror Eight only reporte d that she thought Juror Three was influenced, and she reported that multiple jurors indicated that they could only co nsider the evidence. As explained above, Juror Three and Juror Ei ght both reported an understandi ng of the rules, and the trial court provided further instruction for the entire jury. Thus, only q uestioning Juror Three and Juror Eight and instructing the jury as a whole—rather than questioni ng each individual juror—was within the range of reasonable and principled outcomes. Mahone , 294 Mich App at 212. In sum, the trial court did not abuse its discretion in retaining Juror Three and only questioning Juror Three and Eight, and Parker was not denied a fair trial.-6- Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Kelly