People of Michigan v. Ronald Kareem Seabrooks

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 24, 2015
Plaintiff-Appellee,

v No. 320320
Wayne Circuit Court
RONALD KAREEM SEABROOKS, LC No. 13-007631-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 320327
Wayne Circuit Court
DEMAR ANTHONY PAYNE, LC No. 13-006269-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 320406
Wayne Circuit Court
KEITH ANTHONY WILLIAMS, LC No. 13-006272-FC

Defendant-Appellant.

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PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 320502
Wayne Circuit Court
JASON LAMAR MILLER, LC No. 12-007613-FC

Defendant-Appellant.

Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.

PER CURIAM.

In Docket No. 320320, defendant Ronald Kareem Seabrooks challenges his jury-trial
convictions of: (a) first-degree premeditated murder, MCL 750.316(1)(a); (b) felony murder,
MCL 316(1)(b); (c) assault with intent to commit murder (AWIM), MCL 750.83; (d) three
counts of torture, MCL 750.85(1); (e) three counts of unlawful imprisonment, MCL 750.349b(1);
(f) two counts of mutilation of a dead body, MCL 750.160; and (g) possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Seabrooks was sentenced
to life in prison for the murder convictions, 20 to 40 years’ imprisonment for the AWIM
conviction, 20 to 40 years’ imprisonment for each torture conviction, seven to 15 years’
imprisonment for each conviction of unlawful imprisonment, five to 10 years’ imprisonment for
each conviction of mutilation of a dead body, and two years’ imprisonment for the felony-
firearm conviction. We affirm.

In Docket No. 320327, defendant Demar Anthony Payne challenges his jury-trial
convictions of: (a) second-degree murder, MCL 750.317; (b) first-degree premeditated murder,
MCL 750.316(1)(a); (c) two counts of felony murder, MCL 750.316(1)(b); (d) AWIM, MCL
750.83; (e) three counts of torture, MCL 750.85(1); (f) three counts of unlawful imprisonment,
MCL 750.349b(1); (g) two counts of mutilation of a dead body, MCL 750.160; and (h) felony-
firearm, MCL 750.227b. Payne was sentenced to 25 to 50 years’ imprisonment for the second-
degree murder conviction, life in prison for the remaining murder convictions, 25 to 50 years’
imprisonment for the AWIM conviction, 20 to 40 years’ imprisonment for each conviction of
torture, seven to 15 years’ imprisonment for each of the unlawful imprisonment convictions, five
to 10 years’ imprisonment for each conviction of mutilation of a dead body, and two years’
imprisonment for felony-firearm. We affirm in part, vacate in part, and remand to the trial court
for amendment of the judgment of sentence.

In Docket No. 320406, defendant Keith Anthony Williams appeals his jury-trial
convictions of: (a) first-degree premeditated murder, MCL 750.316(1)(a); (b) second-degree
murder, MCL 750.317; (c) two counts of felony murder, MCL 750.316(1)(b); (d) AWIM, MCL
750.83; (e) three counts of torture, MCL 750.85(1); (f) three counts of unlawful imprisonment,
MCL 750.349b(1); (g) two counts of mutilation of a dead body, MCL 750.160; (h) felon in
possession of a firearm, MCL 750.224f; and (i) felony-firearm, MCL 750.227b. Williams was

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sentenced to life in prison for the first-degree murder convictions, 40 to 80 years’ imprisonment
for the second-degree murder conviction and for the AWIM conviction, 20 to 40 years’
imprisonment for each conviction of torture, seven to 15 years’ imprisonment for each unlawful
imprisonment conviction, five to 10 years’ imprisonment for each conviction of mutilation of a
dead body, two to five years’ imprisonment for the felon-in-possession conviction, and two
years’ imprisonment for the felony-firearm conviction. We affirm in part, vacate in part, and
remand to the trial court for amendment of the judgment of sentence.

In Docket No. 320502, defendant Jason Lamar Miller appeals his bench-trial convictions
of: (a) two counts of second-degree murder, MCL 750.317; (b) felony murder, MCL
750.316(1)(b); (c) three counts of torture, MCL 750.85; (d) three counts of unlawful
imprisonment, MCL 750.349b(1); (e) two counts of mutilation of a dead body, MCL 750.160; (f)
felon in possession of a firearm, MCL 750.224f; and (g) felony-firearm, MCL 750.227b. Miller
was sentenced to life imprisonment for the felony murder conviction, 30 to 60 years’
imprisonment for each second-degree murder conviction, 20 to 40 years’ imprisonment for each
conviction of torture, seven to 15 years’ imprisonment for each unlawful imprisonment
conviction, five to 10 years’ imprisonment for each conviction of mutilation of a dead body, two
to five years’ imprisonment for the felon-in-possession conviction, and two years’ imprisonment
for the felony-firearm conviction. We affirm in part, vacate in part, and remand to the trial court
for amendment of the judgment of sentence.

These appeals arise from a double homicide tied to events occurring on April 29, 2012, at
15324 Cruse St. in Detroit. The murder victims were identified as Michael Bostick and Kyra
Jordan. Michael Bostick died as a result of two gunshot wounds. One bullet was recovered from
Jordan’s body. The bodies of both victims were burned post-mortem, resulting in such
substantial charring that Bostick incurred an amputation of his lower extremities attributed to
thermal injury. The use of dental records was necessary to substantiate Jordan’s identification by
the medical examiner. A third victim, Lester Lewis, incurred a gunshot wound to the face, but
was able to escape while being transported in the trunk of the vehicle that was later used to
immolate the other two victims.

I. DUE DILIGENCE

Seabrooks, Williams and Payne contend on appeal that the prosecutor failed to show due
diligence in seeking to procure the presence of witness Michael Eatmon for trial. They further
assert error in the trial court’s denial of their request for a missing witness instruction. For the
first time on appeal, Miller asserts error in the trial court’s failure to grant an adjournment of the
trial to permit time to locate Eatmon to testify.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of
discretion. People v Briseno, 211 Mich App 11, 14; 535 NW2d 559 (1995). A trial court’s
denial of a request for a missing witness instruction is also reviewed for an abuse of discretion.
People v Snider, 239 Mich App 393, 422; 608 NW2d 502 (2000). Whether due diligence was
exercised by a prosecutor in trying to secure a witness to testify involves a finding of fact that
will not be set aside absent clear error. Briseno, 211 Mich App at 14. A finding is deemed to be
clearly erroneous if it leaves this Court with a “definite and firm conviction that a mistake has
been made.” People v McSwain, 259 Mich App 654, 682; 676 NW2d 236 (2003) (citation and

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quotation marks omitted). “Reversal for failure to provide a jury instruction is unwarranted
unless it appears that it is more probable than not that the error was outcome determinative.”
People v McKinney, 258 Mich App 157, 163; 670 NW2d 254 (2003).

To properly preserve an issue regarding the denial of an adjournment, a defendant must
actually request an adjournment or continuance. See Snider, 239 Mich App at 421. “This Court
reviews the grant or denial of an adjournment for an abuse of discretion.” Id. “A trial court
abuses its discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes.” People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007). A
denial of a request for an adjournment or continuance is not a ground for reversal unless the
defendant demonstrates that prejudice resulted from the court’s abuse of discretion with respect
to the motion. Snider, 239 Mich App at 421-422. Because this issue was not raised in the trial
court it is unpreserved and reviewed for plain error affecting a defendant’s substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

The witness list for the prosecution listed Michael Eatmon as a trial witness. At the close
of the prosecution’s case, it was acknowledged that Eatmon could not be located for trial.
Consequently, a due diligence hearing was conducted with Detroit Police Sergeant William Hart
to ascertain the efforts undertaken to secure Eatmon’s presence for trial. Hart indicated that he
ran a Law Enforcement Information Network (LEIN) query to obtain addresses for Eatmon and
discovered that he was “still a probation violator.” In addition to speaking with Eatmon’s
probation officer, Hart had all of the addresses obtained for Eatmon checked without success
and, on development of a new address, that location was also reviewed. Hart ran a check
through “Vine Link” to determine if Eatmon had been arrested, but it was negative. An
individual confirmed that Eatmon was no longer at one of the addresses developed. Hart further
checked all the morgues and hospitals, along with CRISNET, trying to locate Eatmon. All
efforts were without success. Hart testified that he was searching for Eatmon before trial started,
but halted efforts when it became uncertain whether Eatmon would also be charged and
following Payne’s initial acceptance of a plea agreement. When Payne withdrew his plea and
defense counsel indicated they wanted Eatmon for trial, Hart asserted, he revamped his efforts to
locate Eatmon. At the conclusion of Hart’s testimony, the trial court found “there’s good cause
to excuse [Eatmon].”

Defense counsel requested a special instruction based on Eatmon’s absence at trial and
the trial court again conducted a due diligence hearing with Hart to update and verify the efforts
to produce the witness. Hart indicated, at the beginning of trial, that he attempted to contact
Eatmon through a telephone number and by securing an address through the Secretary of State.
Neither effort was successful. Hart obtained and checked a number of addresses for Eatmon
without locating him. He contacted his probation officer, who had Eatmon listed as an
“absconder,” and requested that the probation officer contact Hart if the Probation Department
was notified that Eatmon was apprehended. Hart and members of his staff checked addresses as
developed and continued to try to generate new leads to his location. Vine Link was again used
to determine if Eatmon was arrested and in jail. Hart asserted that any aliases used by Eatmon
would have arisen in conjunction with the check on this system under Eatmon’s actual name.
All hospitals and morgues were contacted and efforts were made to determine if Eatmon was
receiving any form of public assistance. At one of the addresses identified, a jail bracelet for
Eatmon was located underneath a mattress, but Eatmon was no longer at that location. Efforts

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were also made to find and communicate with Eatmon’s girlfriend, but she could not be located.
At one house investigated, a woman identifying herself as Eatmon’s mother was uncooperative
and reported that she had not seen or spoken to Eatmon for a period of time. No surveillance
was performed on the mother’s residence during the trial. Hart did not investigate jail or prison
facilities in West Virginia. He also confirmed that he did not employ the Fugitive Apprehension
Team in trying to locate Eatmon. Hart verified that the Wayne County jails were checked at the
beginning of trial and again during the week of December 16, 2013, while trial was in progress.
It was learned that Eatmon was in the Wayne County Jail from May 20, 2013, to June 28, 2013,
but was no longer in their custody. The trial court denied the request for a missing witness
instruction based on its finding of due diligence by the prosecutor.

In accordance with MCL 767.40a(1), a prosecutor “shall attach to the filed information a
list of all witnesses known to the prosecuting attorney who might be called at trial and all res
gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.”
“Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his
or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.” MCL
767.40a(3). A prosecutor’s obligations to assist a defendant in securing witnesses are delineated
in MCL 767.40a(5). A prosecutor is only required to “notify a defendant of all known res gestae
witnesses and all witnesses that the prosecution intends to produce” at trial. People v Cook, 266
Mich App 290, 295; 702 NW2d 613 (2005) (emphasis removed). There is no requirement that a
prosecutor must locate, endorse, and produce every res gestae witness. See id. “The
prosecutor’s duty to produce witnesses has been replaced with an obligation to provide notice of
known witnesses and reasonable assistance to locate witnesses on defendant’s request.” Id.
(citation and quotation marks omitted; emphasis removed). “A prosecutor who endorses a
witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at
trial.” People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). Due diligence is
demonstrated when a prosecutor attempts “to do everything reasonable, not everything possible,”
to produce a witness at trial. Id. at 391. If the prosecutor does not exercise due diligence and is
unable to produce an endorsed witness, or fails to provide reasonable assistance to locate and
serve process upon a witness at a defendant’s request, a missing witness instruction may be
appropriate. See People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003). The missing
witness instruction provides the jury with the option “that it may infer that the missing witness’s
testimony would have been unfavorable to the prosecution’s case.” Eccles, 260 Mich App at
388.

In support of their position, defendants reference People v Dye, 431 Mich 58; 427 NW2d
501 (1988), to suggest that the prosecution’s alleged failure to attempt to locate Eatmon until
trial began demonstrates a lack of due diligence. The Dye Court found, in that case, that the
prosecution failed to establish due diligence because the efforts to find important witnesses were
“tardy and incomplete.” Id. at 67-68. In Dye, although the prosecution was aware of the
potential for the witnesses to leave the state and not accept service for months before the trial
began, the prosecution failed to investigate the location of the witnesses until shortly before trial
and failed to pursue information regarding the location of the witnesses. Id. at 67-73. The
circumstances of these cases are distinguishable. First, there is no evidence to suggest that Hart
and his staff neglected to follow or investigate any leads with regard to locating Eatmon. Rather,
the evidence shows that numerous addresses were identified and investigated, individuals were
interviewed, and contact with his probation officer and electronic sources were used in an

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attempt to find Eatmon for trial. Second, Hart testified, without contradiction, that his efforts to
establish addresses and locate Eatmon began before trial and continued when it was determined
that defense counsel wanted Eatmon as a witness. Third, there is no indication that the
prosecution was aware that Eatmon would become unavailable based on his provision of a
voluntary statement to the police and his appearance at prior scheduled court dates without the
necessity of police intervention or assistance. Based on the record, there was no abuse of
discretion in the determination that the prosecution had exercised due diligence and the refusal to
provide the missing witness instruction. Eccles, 260 Mich App at 389.

With regard to the contention that an adjournment should have been granted due to the
inability to procure Eatmon, that aspect of the issue is unpreserved because an adjournment was
not requested. In addition, there is no argument or legal citation presented on appeal to explain
how an adjournment would have altered the result or outcome of trial. The failure to argue this
point and cite to relevant legal authority results in an abandonment of this aspect of the issue on
appeal. See People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009) (citation and
quotation marks omitted) (“An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.”); see also People v Ackerman, 257
Mich App 434, 450; 669 NW2d 818 (2003) (“the failure to cite any supporting legal authority
constitutes abandonment of an issue”).

There is also an attempt to characterize this issue as constitutional in nature by
defendants’ assertion that they were denied their right to due process, to confront witnesses and
to present a defense premised on the prosecution’s failure to present Eatmon as a witness at trial.
“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.’ ” Crawford v
Washington, 541 US 36, 42; 124 S Ct 1354; 158 L Ed 2d 177 (2004), quoting US Const, Am VI.
Testimonial statements of a witness who does not appear at trial are only admissible if the
defendant had a prior opportunity for cross-examination and the witness was unavailable to
testify. Crawford, 541 US at 68. For purposes of the Confrontation Clause a witness is deemed
to be unavailable if he or she is absent and the prosecutor made a good faith effort to obtain that
individual’s presence for trial. Barber v Page, 390 US 719, 724-725; 88 S Ct 1318; 20 L Ed 2d
255 (1968), overruled on other grounds by Crawford, supra. Hence, the unavailability of a
witness is not dependent on the intent of the witness but rather on the efforts expended by the
prosecution. As discussed supra, the trial court did not abuse its discretion in finding that the
prosecution demonstrated due diligence in trying to secure Eatmon for trial.

Testimony was elicited from Eatmon under an investigative subpoena where cross-
examination was not available. This testimony was not introduced at trial for Seabrooks,
Williams and Payne. However, they suggest that had Eatmon been available at trial his
testimony would have, in some manner, served to exculpate them of the charges. Even if
Eatmon’s testimony under the subpoena were considered, it was not exculpatory. Eatmon
acknowledged being present at the Cruse residence and observing all of the defendants with
guns, except for Miller. (Eatmon, however, asserted that he did not remain in the home for the
entirety of the events.) His testimony confirmed the presence of defendants, the presence of at
least four weapons (two revolvers and two assault rifles), the removal of the victims to the
basement and shots being fired. Eatmon’s testimony was not exculpatory with regard to

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Williams, Seabrooks or Payne. In terms of Miller, although Eatmon did not initially place a gun
in his hands, Miller ignores that the prosecution’s theory was one of aiding and abetting.

“Unlike conspiracy and felony murder, which also allow the state to punish a person for
the acts of another, aiding and abetting is not a separate substantive offense. Rather, ‘being an
aider and abettor is simply a theory of prosecution’ that permits the imposition of vicarious
liability for accomplices.” People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (citations
omitted). The elements necessary for a conviction under an aiding and abetting theory are:

“(1) the crime charged was committed by the defendant or some other person; (2)
the defendant performed acts or gave encouragement that assisted the commission
of the crime; and (3) the defendant intended the commission of the crime or had
knowledge that the principal intended its commission at the time that [the
defendant] gave aid and encouragement.” [Id. (citations omitted).]

Hence,

[a] defendant is criminally liable for the offenses the defendant specifically
intends to aid or abet, or has knowledge of, as well as those crimes that are the
natural and probable consequences of the offense he intends to aid or abet.
Therefore, the prosecutor must prove beyond a reasonable doubt that the
defendant aided or abetted the commission of an offense and that the defendant
intended to aid the charged offense, knew the principal intended to commit the
charged offense, or, alternatively, that the charged offense was a natural and
probable consequence of the commission of the intended offense. [Id. at 15.]

The mere fact that Eatmon did not place a “smoking gun” in Miller’s hands during the short time
Eatmon claimed to have been present is not enough to exculpate Miller based on both the
testimony elicited from Lester Lewis and Terrance Griggs under an aiding and abetting theory,
particularly given Eatmon’s absence during both the initial and conclusory events that comprised
the charges. In addition, Miller’s contention that the failure to present Eatmon compromised his
ability to present a defense is without merit because defense counsel and the prosecutor
stipulated to permit admission of Eatmon’s investigative subpoena testimony into evidence
during Miller’s bench trial.

Further, the suggestion that Eatmon’s testimony would have further challenged the
credibility of the prosecution’s testifying witnesses is simply speculative as well as being more
hopeful than rational, given Eatmon’s indication that the victims were on the floor of the home
surrounded by at least four armed individuals and forced to the basement of the home and that
gunshots were fired. In other words, Eatmon’s testimony under the investigative subpoena was
sufficiently similar to that of Lewis and Griggs on the major elements of the crimes charged to
render discrepancies on less consequential details irrelevant.

II. ADMISSIBILITY OF EVIDENCE

Seabrooks contends the trial court erred in not permitting him to testify regarding a
statement made by Lewis to Seabrooks when they were both in West Virginia after the events
had transpired. Specifically, Seabrooks asserts error in the trial court’s sustaining the hearsay
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objection by the prosecutor to Seabrooks’s testimony that Lewis indicated his facial injury was
the result of “a mistake.” Defense counsel asserted the testimony was admissible as a prior
inconsistent statement and that by precluding it the trial court was denying Seabrooks his right to
present a defense. It is further alleged that the trial court erred in sustaining the prosecution’s
objection to defense counsel’s inquiry of Seabrooks whether Lewis acknowledged that his facial
injury did not involve Seabrooks’s shooting of Lewis. (Seabrooks was permitted to testify, in
general, that Lewis’s response to an inquiry regarding his facial injury did not suggest or
reference being shot by Williams.) It is argued that the trial court further erred in sustaining the
prosecution’s objection to a query placed to Seabrooks regarding whether Lewis ever attacked
him and accused him of trying to kill him when they encountered each other in West Virginia.

“The decision whether to admit evidence falls within a trial court’s discretion and will be
reversed only when there is an abuse of that discretion,” which occurs when the court’s decision
“falls outside the range of reasonable and principled outcomes.” People v Duncan, 494 Mich
713, 722-723; 835 NW2d 399 (2013). This Court reviews de novo “[p]reliminary issues of law,
including the interpretation of the rules of evidence and the effect of constitutional provisions . . .
.” People v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011).

In general, all relevant evidence is admissible, and irrelevant evidence is inadmissible.
MRE 402. Evidence is deemed to be 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.” MRE 401; see also People v Watkins, 491 Mich 450,
470; 818 NW2d 296 (2012). Even if determined to be 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.” MRE 403. “All evidence offered by the parties is
‘prejudicial’ to some extent, but the fear of prejudice does not generally render the evidence
inadmissible. It is only when the probative value is substantially outweighed by the danger of
unfair prejudice that evidence is excluded.” People v Mills, 450 Mich 61, 75; 537 NW2d 909
(1995), mod 450 Mich 1212 (1995) (emphasis removed).

Seabrooks contends the trial court erred in sustaining the prosecutor’s hearsay objection
during the following query of Seabrooks:

Q. Tell me this. When you saw Lester Lewis at the community college,
did he attack you?

A. No.

Q. Did he say, you tried to kill me?

At this point the prosecutor objected based on hearsay, and the trial court sustained the objection.
Defense counsel did not contest the objection or ruling and was able to elicit testimony from
Seabrooks indicating that he was given no indication that Lewis, while both men were in West
Virginia, behaved in a manner to suggest he was fearful of Seabrooks or resentful of his
participation in the events on Cruse Street.

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 The general rule is that “prior unsworn statements of a witness are mere hearsay and are
generally inadmissible as substantive evidence.” People v Lundy, 467 Mich 254, 257; 650
NW2d 332 (2002). “Extrinsic evidence of a prior inconsistent statement can be used to impeach
but it cannot be used to prove the truth of the matter asserted, unless, of course, it falls within a
hearsay exception.” People v Jenkins, 450 Mich 249, 273; 537 NW2d 828 (1995). Counsel for
Seabrooks sought to elicit testimony, through Seabrooks, of statements allegedly made by Lewis
approximately one year after the events comprising the subject of the criminal charges. As such,
the statements comprised hearsay and were not admissible. Other than suggesting that the one
statement comprised a prior inconsistent statement by Lewis, counsel for Seabrooks failed to
identify any applicable hearsay exception to render the testimony admissible.

“Under MRE 613, subject to certain restrictions, a witness may be examined concerning
a prior inconsistent statement for impeachment purposes.” People v Rodriguez, 251 Mich App
10, 34; 650 NW2d 96 (2002). To impeach a witness with prior inconsistent statements in
accordance with MRE 613, a party is required to initially establish a proper foundation “by
questioning the witness concerning the time and place of the statement and the person to whom it
was allegedly made.” Id. at 34. “When a witness claims not to remember making a prior
inconsistent statement, he may be impeached by extrinsic evidence of that statement.” Jenkins,
450 Mich at 256; People v Claybon, 124 Mich App 385, 399; 335 NW2d 493 (1983). In this
case, Seabrooks attempted to admit Lewis’s alleged statements without first laying the proper
foundation by establishing Lewis was unable to recall making a prior inconsistent statement.
Counsel could not properly seek to impeach the testimony of Lewis through the testimony of
Seabrooks.

Even if Seabrooks was entitled to admit the prior alleged statements to demonstrate an
inconsistency with Lewis’s trial testimony, it is unlikely that the purported error affected the
outcome of the trial given the amount of evidence admitted demonstrating Seabrooks’s presence
and participation in the events. Therefore, any alleged error was harmless. See MCR 2.613(A).

Seabrooks also asserts that the omission of this testimony impeded his right to present a
defense. Criminal defendants are guaranteed “a meaningful opportunity to present a complete
defense.” People v Unger, 278 Mich App 210, 249; 749 NW2d 272 (2008) (citations and
quotation marks omitted). The right to present evidence is not, however, absolute. Id. at 250.

A defendant’s interest in presenting . . . evidence may thus bow to accommodate
other legitimate interests in the criminal trial process. States have been
traditionally afforded the power under the constitution to establish and implement
their own criminal trial rules and procedures. . . . Michigan has a legitimate
interest in promulgating and implementing its own rules concerning the conduct
of trials. Our state has broad latitude under the Constitution to establish rules
excluding evidence from criminal trials. Such rules do not abridge an accused’s
right to present a defense so long as they are not arbitrary or disproportionate to
the purposes they are designed to serve. [Id. (citations and quotation marks
omitted).]

The omission of the referenced testimony did not preclude the ability of Seabrooks to present a
defense. Seabrooks was permitted to testify that Lewis’s response to an inquiry regarding his

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facial injury did not reference being shot by Williams or give any indication that he was fearful
or resentful of Seabrooks for the events surrounding his injury. In addition, because the trial
court did not abuse its discretion in excluding the statements, it did not deny Seabrooks his right
to present a defense. Id.

III. UNAUTHORIZED AWARD OF COSTS

Defendants contend, in accordance with People v Cunningham, 496 Mich 145; 852
NW2d 118 (2014), that the trial court lacked the authorization to impose $600 in court costs.

“For an issue to be preserved for appellate review, it must be raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). At sentencing, the trial court ordered each defendant to pay specified costs
and fees, including $600 in court costs. Defendants failed to object when the trial court ordered
them to pay the costs now being appealed. The issue is unpreserved. Because defendants failed
to object when the trial court imposed the court costs, this Court reviews their challenge to the
imposition of the costs for plain error. People v Konopka, 309 Mich App 345, 356; 869 NW2d
651 (2015). Issues of statutory interpretation are reviewed de novo. Cunningham, 496 Mich at
149.

Defendants ignore or fail to recognize this Court’s recent decision in Konopka and the
amendment of MCL 769.1k(1), which provides in relevant part:

(b) The court may impose any or all of the following:

(i) Any fine authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.

(ii) Any cost authorized by the statute for a violation of which the
defendant entered a plea of guilty or nolo contendere or the court determined that
the defendant was guilty.

(iii) Until 36 months after the date the amendatory act that added
subsection (7) is enacted into law, any cost reasonably related to the actual costs
incurred by the trial court without separately calculating those costs involved in
the particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court
buildings and facilities.

(iv) The expenses of providing legal assistance to the defendant.

(v) Any assessment authorized by law.

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 (vi) Reimbursement under section 1f of this chapter.

As recognized by this Court, the amended version of this statute became effective on October 17,
2014, and applies to all fines, costs, and assessments under MCL 769.1k before June 18, 2014,
and after the effective date of the amendatory act. Konopka, 309 Mich App at 357. “The
amended act was a curative measure to address the authority of courts to impose costs under
MCL 769.1k before Cunningham was issued.” Konopka, 309 Mich App at 357. MCL
769.1k(1)(b)(iii) now allows for an award of costs that “are not independently authorized by the
statute for the sentencing offense . . . .” Konopka, 309 Mich App at 357. “In light of the
adoption of 2014 PA 352, the trial court’s imposition of costs was not erroneous.” Konopka, 309
Mich App at 359.

We note that this Court in Konopka, id. at 359-360, remanded the matter to the trial court
solely premised on the trial court’s failure to establish a factual basis for the costs imposed.
Specifically, this Court explained,

without a factual basis for the costs imposed, we cannot determine whether the
costs imposed were reasonably related to the actual costs, as required by MCL
769.1k(1)(b)(iii). In this case, defendant specifically challenges the lack of
reasoning for the costs imposed, and we find that she should be given the
opportunity to challenge the reasonableness of the costs imposed. [Konopka, 309
Mich App at 359-360.]

In this instance, defendants have only challenged the authority of the court to impose the
referenced costs, not the reasonableness of the costs imposed. As such, we find no basis or
reason to remand this issue to the trial court for further review or explanation.

IV. PROSECUTORIAL MISCONDUCT

Seabrooks argues that the prosecutor erred in his opening statement by referencing the
anticipated testimony of Payne following his entry into a plea agreement. Payne subsequently
withdrew his plea shortly before testifying, resulting in Payne’s participating in the trial as a
defendant and, according to Seabrooks, causing undue prejudice and compromising Seabrooks’s
right of confrontation. Seabrooks further contends that the trial court’s denial of a motion
seeking a mistrial, premised on the prosecutor’s opening statements and its effect following
Payne’s plea withdrawal, constituted error.

“In order to preserve an issue of prosecutorial misconduct, a defendant must
contemporaneously object and request a curative instruction.” People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010). Technically, Seabrooks’s appellate issue with regard to
prosecutorial misconduct is unpreserved due to the absence of a contemporaneous objection to
the statement now challenged. Given the circumstances of Payne’s plea withdrawal, however,
counsel did object as soon as reasonably possible and thus, we will treat the issue as preserved.
In addition, Williams and Seabrooks requested a mistrial premised on this statement.

“We review claims of prosecutorial misconduct case by case, examining the remarks in
context, to determine whether the defendant received a fair and impartial trial.” People v
Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). A trial court’s decision to deny a
-11-
motion for a mistrial is reviewed for an abuse of discretion. People v Dennis, 464 Mich 567,
572; 628 NW2d 502 (2001). “Whether the prosecutor’s comments in the case before us
amounted to error so grievous that it necessitated a mistrial is a question trusted to the sound
discretion of the trial judge whose decision in the matter will not be reversed absent a clear abuse
of discretion.” People v Bommarito, 110 Mich App 207, 210; 312 NW2d 214 (1981).

On December 2, 2013, Payne entered into a plea agreement with the prosecutor’s office,
wherein he agreed to testify at trial. On December 5, 2013, the prosecutor gave his opening
statement, along with counsel for Williams and Seabrooks. Payne was to be one of the initial
witnesses to testify, but refused and sought to withdraw his plea shortly before he was scheduled
to testify. In anticipation of Payne’s testimony, the prosecutor’s opening statement included the
following:

You may hear testimony from Demar Payne. Demar Payne, remember
was the one who rode in the Taurus with Keith Williams, as it drove away from
Cruse Street. Demar Payne is gonna telling [sic] you what happened that night as
well as Terrence Griggs. As well as Lester Lewis.

I ask that you pay very close attention to what they tell you. They were
there. The evidence is gonna show they were there. Yes, they made deals to
testify, and they’re gonna testify and tell you what happened that night.

Counsel for Williams also referenced Payne in his opening statement:

Terrence Griggs is suppose [sic] to be a cousin. And he comes to the
house on a regular basis, just like Mr. Lewis. Mr. Payne, is like a family member.
And he comes to the house on a regular basis, just like Mr. Lewis. But they want
to act as if they don’t really know each other.

* * *

The testimony is gonna also show that even Mr. Payne wants to say that I
didn’t shoot anybody. I didn’t have a gun. I really didn’t do a lot here. But I
took 18 years [sic] to testify truthfully.

Counsel for Seabrooks did not reference Payne’s anticipated testimony in his opening statement.
Once made aware that Payne intended to refuse to testify and sought to withdraw his plea,
counsel expressed concern for the content of the opening statements, specifically referencing
Payne’s anticipated testimony and the awkwardness of having a witness identified for the jury
now assume a position at the defense table.

The prosecutor’s reference to Payne’s anticipated testimony cannot be construed as error
on the part of the prosecutor, who was anticipating this individual serving as a witness. “The
purpose of an opening statement is to tell the jury what the advocate proposes to show.” People
v Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976) (KELLY, J., concurring), aff’d sub nom
People v Tilley, 405 Mich 38 (1979). It is permissible for the prosecutor to comment on the
evidence to be presented and any reasonable inferences to be drawn therefrom if the comments
provide a fair introduction to the evidence. See id. Further, the statements by the prosecutor

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cannot be construed as prejudicial to Seabrooks. First, any indication regarding the anticipated
testimony of Payne was vague and general in nature and did not reference Seabrooks or his
participation in the charged events. Second, at the time the statements were made, the prosecutor
was acting in good faith as acknowledged by counsel for Seabrooks. “[P]rosecutorial
misconduct cannot be predicated on good-faith efforts to admit evidence.” People v Noble, 238
Mich App 647, 660; 608 NW2d 123 (1999).

Further, the trial court specifically instructed the jury “to return a true and just verdict
based only on the evidence and my instructions on the law.” In addition to instructing on the
presumption of innocence, the trial court cautioned the jury regarding what comprised evidence
and that in rendering a verdict the jury “may only consider the evidence that was properly
admitted in the case.” The trial court defined evidence as including “only the sworn testimony of
the witnesses and the exhibits that were admitted into evidence.” Examples of what did not
comprise evidence included the “statements and arguments” of the attorneys. In addition, the
trial court instructed the jury to “only accept things the lawyers say that are supported by the
evidence or by your own common sense and general knowledge.” As explained by this Court,
“[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate
prosecutorial statements and jurors are presumed to follow their instructions.” Unger, 278 Mich
App at 235 (citation omitted).

Seabrooks also contends that the statements by the prosecutor regarding the anticipated
testimony of Payne violated his Sixth Amendment right to confrontation. While a Confrontation
Clause issue can arise when a witness asserts the Fifth Amendment, it does not arise if a witness
does not provide any substantive testimony. People v Gearns, 457 Mich 170, 186-187; 577
NW2d 422 (1998), overruled on other grounds People v Lukity, 460 Mich 484, 494; 596 NW2d
607 (1999). “A mere inference is simply insufficient for a Confrontation Clause violation.” Id.
The prosecutor generally referenced in his opening statement that Payne, a codefendant of
Seabrooks, was anticipated to testify as a witness. Payne unexpectedly reneged on his agreement
with the prosecutor and did not actually testify. Consequently, Payne did not provide any
substantive testimony that was harmful to Seabrooks. Because the prosecutor only referred to a
witness who never testified in the case, defendant’s right to confront the witnesses against him
was not violated by the prosecutor’s remark in his opening statement.

The trial court’s decision to deny the request for a mistrial was not an abuse of discretion.
“A mistrial should be granted only for an irregularity that is prejudicial to the rights of the
defendant . . . and impairs his ability to get a fair trial . . . .” People v Haywood, 209 Mich App
217, 228; 530 NW2d 497 (1995). “[T]he prosecutorial error complained of in this case was not
of such a magnitude that the granting of a mistrial was ‘a manifest necessity.’ ”1 Bommarito,
110 Mich App at 211. Clearly, the remark of the prosecutor in his opening statement was not

1
“Manifest necessity ‘appears to refer to the existence of sufficiently compelling circumstances
that would otherwise deprive the defendant of a fair trial or make its completion impossible.’ ”
People v Echavarria, 233 Mich App 356, 363; 592 NW2d 737 (1999), quoting People v
Rutherford, 208 Mich App 198, 202; 526 NW2d 620 (1994).

-13-
“motivated by bad faith or undertaken to harass or prejudice the defendant.” Id. “[T]his Court
has held that when a prosecutor states that evidence will be submitted to the jury, and the
evidence is not presented, reversal is not warranted if the prosecutor did so acting in good faith.”
People v Wolverton, 227 Mich App 72, 75; 574 NW2d 703 (1997). Further, Seabrooks has
failed to demonstrate any prejudice regarding the opening statement. Seabrooks’s right to a fair
trial was sufficiently protected by the trial court’s limiting instruction to the jury, because jurors
are presumed to follow their instructions. See People v Graves, 458 Mich 476, 486; 581 NW2d
229 (1998). As such, Seabrooks has failed to make an affirmative showing of prejudice or to
demonstrate that the trial court abused its discretion in denying a motion for a mistrial. People v
Vettese, 195 Mich App 235, 246; 489 NW2d 514 (1992).

V. DUAL JURY

Seabrooks and Williams contend the trial court erred in failing to grant them a trial that
was separate from their codefendants Payne and Miller, alleging that their defenses were
antagonistic to those of their codefendants. They further argue that the trial court erred in failing
to grant their request to remove their jury during cross-examination of Lewis by counsel for
Payne, resulting in prejudice and a violation of their right to due process.

“Generally, a trial court’s ‘ultimate ruling on a motion to sever is reviewed for an abuse
of discretion.’ ” People v Williams, 483 Mich 226, 234 n 6; 769 NW2d 605 (2009), quoting
People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). “An abuse of discretion occurs
when the trial court chooses an outcome falling outside the range of principled outcomes.”
People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012). Preserved evidentiary issues are
reviewed for an abuse of discretion. Orr, 275 Mich App at 588.

“When 2 or more defendants shall be jointly indicted for any criminal offense, they shall
be tried separately or jointly, in the discretion of the court.” MCL 768.5. “A strong policy
favors joint trials in the interest of judicial economy; a defendant does not have an absolute right
to a separate trial.” People v Hoffman, 205 Mich App 1, 20; 518 NW2d 817 (1994). In
accordance with MCR 6.121(C), a trial court “must sever the trial of defendants on related
offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the
defendant.”

Seabrooks and Williams contend that severance was appropriate in the current
circumstances because their defense theory was antagonistic to Payne’s. However, “[s]everance
is mandated under MCR 6.121(C) only when a defendant provides the court with a supporting
affidavit, or makes an offer of proof, that clearly, affirmatively, and fully demonstrates that his
substantial rights will be prejudiced and that severance is the necessary means of rectifying the
potential prejudice.” People v Hana, 447 Mich 325, 346; 524 NW2d 682 (1994), amended on
reh sub nom People v Gallina, 447 Mich 1203 (1994), and amended on reh sub nom People v
Rode, 447 Mich 1203 (1994). “The failure to make this showing in the trial court, absent any
significant indication on appeal that the requisite prejudice in fact occurred at trial, will preclude
reversal of a joinder decision.” Id. at 346-347. “Inconsistency of defenses is not enough to
mandate severance; rather, the defenses must be mutually exclusive or irreconcilable.” Id. at 349
(citations and quotation marks and citations omitted). Defendants are not entitled to severance
simply because they “may have a better chance of acquittal in separate trials,” because the

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defendants may “attempt to escape conviction by pointing the finger at each other,” or merely
because another defendant may testify at trial. Id. at 349-350 (citations and quotation marks
omitted). To warrant severance, the defenses presented must be “mutually exclusive” or
“irreconcilable,” which means that the “jury, in order to believe the core of the evidence offered
on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-
defendant.” Id. at 349-350 (citations and quotation marks omitted).

Seabrooks and Williams both denied being present in the home at the time of the
shootings. In contrast, Payne and Miller acknowledged being present but denied active
participation in the events. Although the proposed defenses involved blame shifting, they are not
“mutually exclusive.” The prosecutor’s theory of the case was that Williams was the principal
with his codefendants acting as aiders and abettors. Seabrooks and Williams do not assert a right
to severance premised on the possibility of a Bruton2 error, because the trial court confirmed it
would exclude juries should any codefendant testify. The risk of prejudice is significantly
reduced where, as here, Williams was charged as a principal and the remaining codefendants as
aiders and abettors. “Fingerpointing by the defendants when such a prosecution theory is
pursued does not create mutually exclusive antagonistic defenses. The properly instructed jury
could have found both defendants similarly liable without any prejudice or inconsistency because
one found guilty of aiding and abetting can also be held liable as a principal.” Hana, 447 Mich
at 360-361.

Seabrooks and Williams more specifically argue that the trial court erred in permitting
their jury to be present for the cross-examination of non-codefendant witnesses, such as Lewis
by counsel for Payne. If believed, the testimony elicited from Lewis indicated that all
defendants, including Seabrooks and Williams, were present and armed within the home during
the events alleged, with Williams serving as the principal and Seabrooks and the remaining
codefendants as aiders and abettors. The defense strategy of both Seabrooks and Williams was
to discredit the testimony of Lewis and Griggs as incredible. As discussed by the Michigan
Supreme Court:

“[A] fair trial does not include the right to exclude relevant and competent
evidence.” All of the evidence and testimony admitted at the dual trial would
have been available for use at either of the defendants’ separate trials. It is not
dispositive that the evidence was presented here by counsel for a codefendant,
rather than the prosecutor. None of the evidence was “probative of a defendant’s
guilt but technically admissible only against a codefendant” as a possible basis for
severance. Nor were the defendants barred from presenting “essentially
exculpatory evidence that would be available to a defendant tried alone, but
unavailable in a joint trial.” [Hana, 447 Mich at 362 (citations omitted).]

2
Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968) (finding that a
defendant is deprived of the Sixth Amendment right to confront witnesses when a nontestifying
codefendant’s statement implicating the defendant is introduced at a joint trial.).

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None of the testimony elicited from Lewis on cross-examination by Payne’s counsel varied, in
any significant manner, from that elicited by the prosecutor or counsel for Seabrooks and
Williams on cross-examination.

As concluded by the Hana Court:

[A]lthough we certainly recognize the potential for confusion in the dual-jury
procedure, we do not find such circumstances in the instant cases. The defendants
were given every opportunity to present complete defenses before their respective
juries, and they have failed to demonstrate how the juries’ abilities to render fair
decisions were adversely affected. The dual-jury procedure had the advantage of
presenting the state’s case, which was equally admissible against [] defendants, in
one setting, with all witnesses testifying at only a single proceeding. The
appropriate cautionary instructions were given, with the reasonable presumption
that the juries followed these instructions to consider the evidence against each
defendant separately. [Id. at 362-363.]

Based on the absence of any demonstrated prejudice to the substantial rights of Seabrooks or
Williams, it was not an abuse of discretion for the trial court to conduct a joint trial with separate
juries. The denial of the request to remove the Seabrooks and Williams jury during cross-
examination of a witness by counsel for a codefendant did not comprise error.

VI. INEFFECTIVE ASSISTANCE OF COUNSEL

Williams and Seabrooks contend their respective trial counsel were ineffective. Williams
further argues that his appellate counsel is also ineffective.

To preserve a claim of ineffective assistance of trial counsel, a defendant must file a
motion for a new trial or for a Ginther3 hearing in the lower court. See People v Petri, 279 Mich
App 407, 410; 760 NW2d 882 (2008). “[T]he test for ineffective assistance of appellate counsel
is the same as that applicable to a claim of ineffective assistance of trial counsel.” People v
Uphaus, 278 Mich App 174, 186; 748 NW2d 899 (2008). The issues are not properly preserved
for appellate review based on the failure to file a motion for a new trial or seek an evidentiary
hearing.

“A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial
court’s findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate
constitutional issue arising from an ineffective assistance of counsel claim de novo.” Petri, 279
Mich App at 410 (citation omitted). This Court’s review of unpreserved claims of ineffective
assistance of counsel is limited to mistakes apparent on the record. Unger, 278 Mich App at 253.
To show ineffective assistance of appellate counsel it must be shown that appellate counsel’s
decision not to raise certain issues on appeal “fell below an objective standard of reasonableness
and prejudiced [defendant’s] appeal.” Uphaus, 278 Mich App at 186.

3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

-16-
 Initially, Williams and Seabrooks contend that their respective trial counsel were
ineffective. Their allegations of error are, however, without reference to the transcripts or other
explanation and fail to explicate or identify the law specifically relevant to the alleged errors.
Although courts will, in general, be liberal in construing pro se briefs, “even pro se litigants must
brief arguments in order to preserve them.” Mapes v Bishop, 541 F3d 582, 584 (CA 5, 2008).
The “rule of liberal construction stops . . . at the point at which we begin to serve as [an]
advocate.” United States v Pinson, 584 F3d 972, 975 (CA 10, 2009). “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment [of an issue] with little or no citation of
supporting authority.” Watson, 245 Mich App at 587 (citation and quotation marks omitted).
The “failure to cite any supporting legal authority constitutes an abandonment of this issue.” Id.
While Seabrooks and Williams have abandoned this issue on appeal due to the failure to cite
legal authority and provide arguments with proper citation to the lower court record, we find
their claims to lack merit.

This Court has addressed the burdens inherent in a claim for ineffective assistance of
counsel:

Effective assistance of counsel is presumed and defendant bears the
burden of proving otherwise. To succeed on a claim of ineffective assistance of
counsel, the defendant must show that, but for an error by counsel, the result of
the proceedings would have been different, and that the proceedings were
fundamentally unfair or unreliable. The defendant bears a heavy burden on these
points. Defendant must overcome a strong presumption that counsel’s
performance constituted sound trial strategy. This Court will not substitute its
judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight. [Petri, 279 Mich App at 410-
411 (citation and quotation marks omitted).]

The assertion that counsel was deficient for failing to object to or successfully suppress
the admission of evidence from the Cruse Street address is without merit. Because this claim is
thoroughly addressed in Issue XI, infra, the legal analysis will not be replicated here.4

Seabrooks and Williams next contend that counsel was ineffective for permitting the
testimony of evidence technician Lori Briggs regarding her procurement of suspected blood
samples from the Cruse Street address without commensurate proof of the testing of the
substance as blood or the determination of DNA to match to the victims or defendants. Briggs

4
It is assumed that the evidence alleged to have been wrongfully procured was that obtained
from the Cruse Street address. This is mere supposition, however, due to the lack of specificity
in the pleadings because other evidence pertaining to a shirt, a car key and spent cartridges were
obtained by police during a search of Sandria Slay’s residence at 19737 Plainview in Detroit.
Any suggestion regarding the impropriety of the search conducted at the Plainview address is
without merit given Slay’s acknowledgment that she gave the police verbal permission to
conduct the search and signed the search warrant for that location.

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testified that she procured three suspected blood samples from the inner side entry door at the
Cruse Street residence, in addition to samples procured from the second step into the home’s
basement, near the south wall of the basement floor and from an outside edge of the basement
refrigerator. Briggs indicated that the substances retrieved were “suspected” to be blood but did
not affirmatively state they were blood. Given the amount of testimony from eyewitnesses
regarding what occurred in the home, it was arguably a matter of trial strategy by defense
counsel not to emphasize or draw attention to the suspected blood evidence. By not challenging
the evidence and the failure to secure testing of the substance, defense counsel was able to avoid
definitive proof that a shooting occurred within the home through incontestable identification of
a victim’s blood at that location. Instead, given the uncertainty of the substance samples
procured by Briggs, defense counsel could focus on the credibility of the prosecution’s witnesses
without having physical evidence to verify their testimony, thereby avoiding the proverbial final
nail in the coffin for Seabrooks and Williams.

It is also claimed that trial counsel was ineffective for referencing a portion of Payne’s
statement suggesting Williams stated, “I don’t normally shoot girls,” and failing to obtain a
mistrial based on that statement. The cited reference occurred outside the presence of the jury
while defense counsel were seeking a mistrial based on the prosecutor’s indication in his opening
statement that Payne would testify as a witness. Given the circumstances surrounding this
colloquy, defendants cannot demonstrate any prejudice.

Seabrooks and Williams also contend that trial counsel was ineffective for failing to
provide them with a discovery packet that allegedly prevented their ability to be informed of the
evidence against them and to assist in providing an adequate defense. Other than a vague
allegation, Seabrooks and Williams do not explain how they were prejudiced or identify what
information they lacked. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
[of an issue] with little or no citation of supporting authority.” Id. at 59 (citations and quotation
marks omitted). Based on the absence of any factual allegations or support for this pro se
argument and the cursory treatment, we deem this aspect of the issue abandoned. Id.

Finally, Williams asserts his appellate counsel is ineffective for failing to raise “dead
bang winning” issues, which according to Williams by necessity require an assertion of a
constitutional violation. Williams argues that appellate counsel failed to identify or raise an
issue on appeal pertaining to his assertion of an illegal search and seizure and the admission of
evidence obtained therefrom at trial. While perhaps constitutional in nature, the issue is not a
“dead bang” winner as discussed in detail in conjunction with Issue XI, infra. The failure to
raise meritless issues cannot be construed to constitute the ineffective assistance of counsel. See
People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995).

Williams also takes issue with his appellate counsel’s failure to timely submit motions
and support for his filing of a Standard 4 brief with this Court. While this Court’s docket sheet
indicates an exchange of communications and the return of certain pleadings sent directly by
Williams to the Court, ultimately Williams was granted his requested extension and permitted to
file a pro se brief in addition to the appellate brief submitted by his counsel. Williams is unable
to demonstrate any prejudice because the issues he contends to be “winners” are before this
Court for review.

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 VII. COMPETENCY EXAMINATION

Payne contends that the trial court erred in denying his request for a competency hearing
and that his trial counsel was ineffective for failing to successfully obtain such a hearing.

“The determination of a defendant’s competence is within the trial court’s discretion.”
People v Newton, 179 Mich App 484, 488; 446 NW2d 487 (1989). Specifically:

“Although the determination of a defendant’s competence is within the trial
court’s discretion, a trial court has the duty of raising the issue of incompetence
where facts are brought to its attention which raise a ‘bona fide doubt’ as to the
defendant’s competence. However, the decision as to the existence of a ‘bona
fide doubt’ will only be reversed where there is an abuse of discretion.” [People v
Kammeraad, 307 Mich App 98, 138; 858 NW2d 490 (2014), quoting People v
Harris, 185 Mich App 100, 102; 460 NW2d 239 (1990) (citations omitted).]

“[A]n abuse of discretion occurs only when the trial court’s decision is outside the range of
reasonable and principled outcomes.” Kammeraad, 307 Mich App at 140 (citation and quotation
marks omitted).

A history of the events and proceedings involving Payne is necessary to place his request
for a competency hearing, and the trial court’s ruling, in the proper context. On December 2,
2013, Payne entered into a plea agreement with a “special agreement for consideration.”
Counsel averred that Payne had been apprised of his rights and had executed the agreements.
Payne was placed under oath and questioned by the trial court regarding the agreements. The
trial court reviewed in detail the terms of the plea and mandatory penalties. The trial court then
proceeded to engage Payne in a series of questions confirming his understanding of the plea, the
consequences of the plea and his preference “to take advantage of the plea,” receiving
consistently affirmative responses from Payne. In addition, the trial court reviewed each of
Payne’s “rights to make sure that you understand you’re giving up them.” Payne confirmed that
he read the plea agreement and that he understood its contents. Payne denied having any
questions regarding the agreement when asked by the trial court. When specifically questioned
by the trial court, Payne acknowledged reading and understanding his plea. Payne agreed that
his plea was voluntary and denied having been coerced or promised anything for entering into
the plea.

Through a series of open-ended questions, the trial court asked Payne about the events
and his actions to establish the factual predicates for the charges. The prosecutor and defense
counsel also participated in eliciting responses from Payne by posing additional questions
regarding various elements of the charged crimes. At the conclusion of the inquiry, the trial
court found a “sufficient factual basis to accept the plea” and that “the plea was voluntarily
entered as well as knowing, and intelligent.” At this time, the trial court also informed Payne
that one of his codefendants had recently withdrawn from his plea agreement and informed
Payne he would “be the first witness in this case.” The trial court advised Payne of the
consequences he would face should he fail to abide by the plea agreement. Payne affirmatively
acknowledged his understanding.

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 Following the opening statements of counsel at trial, Payne declined to testify. The next
day, Payne sought to withdraw his plea, asserting “My understanding wasn’t what is it [sic],” and
requested a “competency referral.” The trial court then engaged in the following discussion with
Payne’s counsel, Gil Whitney McRipley:

The Court: You didn’t understand the plea?

Defense Counsel: Yeah. He wants a competency referral.

The Court: Okay. Well, that’s not gonna happen.

Defense Counsel: I’m just making, putting it on the record.

The Court: Okay. That’s fine.

Defense Counsel: Just so the record is clear, I talked to Mr. Payne as well
as his mother. He does have some mental history in his past. He’s also indicated
that things were going to [sic] fast. And the whole incident has clouded his mind.
It’s hard for him to help him to assist in trial. And he feels that’s [sic] he’s not
competent to stand trial.

The Court: Okay. Well, I went over everything in the plea proceeding
with him. And Mr. Payne, I don’t know if you understand this, but you’re
presumed to be competent. Now, you’re raising the competency issue now after
we’ve already had a number of proceedings and after you entered into a voluntary
and knowing plea in this case.

So, I don’t think that there’s any legitimate issue to raise competency at
this point. And given the fact that we have, it’s never been raise [sic] before
today by your attorney. Also, am I right in understanding you’re not gonna
testify? In the other case you’re refusing to testify? You have to say yes or no?

Payne: Yes.

“The conviction of an individual when legally incompetent violates due process of law.”
In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000). MCL 330.2020(1) states:

A defendant to a criminal charge shall be presumed competent to stand
trial. He shall be determined incompetent to stand trial only if he is incapable
because of his mental condition of understanding the nature and object of the
proceedings against him or of assisting in his defense in a rational manner. The
court shall determine the capacity of a defendant to assist in his defense by his
ability to perform the tasks reasonably necessary for him to perform in the
preparation of his defense and during his trial.

Mental competency in criminal cases is addressed in MCR 6.125(B):

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 The issue of the defendant’s competence to stand trial or to participate in
other criminal proceedings may be raised at any time during the proceedings
against the defendant. The issue may be raised by the court before which such
proceedings are pending or being held, or by motion of a party. Unless the issue
of defendant’s competence arises during the course of proceedings, a motion
raising the issue of defendant’s competence must be in writing. If the competency
issue arises during the course of proceedings, the court may adjourn the
proceeding or, if the proceeding is defendant’s trial, the court may, consonant
with double jeopardy considerations, declare a mistrial.

Importantly, a defendant is presumed competent to stand trial unless his mental condition
precludes his ability to understand the nature and object of the proceedings against him or the
court determines he is incapable of assisting in his defense. MCL 330.2020(1). A test applied in
reviewing a trial court’s determination regarding competence “is whether a reasonable judge,
situated as was the trial court judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to competency to stand trial.”
Kammeraad, 307 Mich App at 138-139 (citations and quotation marks omitted).

Based on the lower court record, the trial court did not abuse its discretion in failing to
grant Payne’s request for a competency examination. As noted by the trial court, it was suspect
that the proceedings had advanced to such a stage without Payne, his counsel, the prosecutor or
trial court having observed the display of any problematic behavior or expressed concerns
regarding Payne’s competency to stand trial. Numerous hearings had occurred without any
question being raised regarding Payne’s ability to comprehend and participate in the
proceedings. Especially telling is Payne’s involvement in a plea agreement. All of the
individuals involved in the plea agreement, including Payne, were able to indicate that Payne had
an understanding of the agreement, the elements of the crimes charged and his actions.
Specifically, Payne’s answers in response to questions posed at the plea hearing demonstrated
that he was “capable of understanding the nature of the charges brought against him and capable
of rationally assisting in his defense . . . .” Kammeraad, 307 Mich App at 140. This merely
appears to be a case of “buyer’s remorse” that arose when the time came for Payne to fulfill his
part of the plea agreement. As such, the trial court’s denial of Payne’s request for a competency
examination did not comprise error. Based on the adequacy of the procedures in the trial court,
coupled with Payne’s inability to overcome the presumption that he was competent to stand trial,
there can be no demonstration that Payne was denied his constitutional right to a fair trial. See
Drope v Missouri, 420 US 162, 172; 95 S Ct 896; 43 L Ed 2d 103 (1975).

Payne further asserts that the failure of his trial counsel to somehow procure a
competency hearing deprived him of the effective assistance of counsel. To show ineffective
assistance of counsel, a defendant must establish that “(1) counsel’s performance fell below an
objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have been different.” People v Trakhtenberg, 493
Mich 38, 51; 826 NW2d 136 (2012). Payne’s counsel did, albeit half-heartedly, raise a request
for a competency hearing. Other than Payne’s own self-serving indications of confusion, there
was no evidence to support his contention that he was incompetent to stand trial. In fact, Payne
appeared before the trial court with his counsel on several prior occasions without indication of
any concern for his mental health or ability to comprehend the proceedings and specifically and

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affirmatively engaged in discourse with the trial court, in conjunction with his plea agreement,
which would belie any such assertion of incompetency. His counsel could not fabricate a basis
for a competency hearing when one clearly did not exist. “Failing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.” People
v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Merely because a defense counsel’s
efforts or strategy were unsuccessful does not equate to ineffective assistance of counsel. People
v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001).

VIII. SUBSTITUTE COUNSEL

Payne contends the trial court erred in refusing his request to appoint new counsel and
that the trial court’s refusal violated his constitutional rights. “A trial court’s decision regarding
substitution of counsel will not be disturbed absent an abuse of discretion. A trial court abuses
its discretion when its decision falls outside the range of reasonable and principled outcomes.”
People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011) (citations and quotation
marks omitted).

At the hearing pertaining to Payne’s plea withdrawal, his attorney indicated that Payne
had made a request for alternative counsel, which was denied by the trial court. The issue of
alternative counsel was raised again on December 9, 2013, with Payne directly addressing the
trial court, asserting a lack of communication with his counsel. Payne’s trial counsel did not
object to a substitution and asserted a lack of prejudice based on the prosecution’s witnesses,
Lewis and Griggs, being in jail. Payne’s trial counsel explained his client had complained, “I’m
not doing my job. He told me I’m on the prosecutor, I’m working with the prosecution. That’s
what he’s telling me. And I, you know, it’s putting me in a bad situation just for grievances
down the line.” The trial court denied the request, characterizing it as a “stall tactic.”

“Appointment of a substitute counsel is warranted only upon a showing of good cause
and where substitution will not unreasonably disrupt the judicial process. Good cause exists
where a legitimate difference of opinion develops between a defendant and his appointed counsel
with regard to a fundamental trial tactic.” Id. (citations and quotation marks omitted). Payne did
not challenge the competency of his counsel, stating merely that he desired more and better
communication with him. Payne’s complaints “lacked specificity and did not involve a
difference of opinion with regard to a fundamental trial tactic.” Id. at 398. “A mere allegation
that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason,
does not amount to adequate cause. Likewise, a defendant’s general unhappiness with counsel’s
representation is insufficient.” Id. (citation omitted). Although Payne contends, in general, that
he disagreed with counsel on important points of trial strategy, he fails to identify any such
disagreements. “An appellant may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims, nor may he give only cursory treatment with
little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588
NW2d 480 (1998). Further, “[c]ounsel’s decisions about defense strategy, including what
evidence to present and what arguments to make, are matters of trial strategy, and disagreements
with regard to trial strategy or professional judgment do not warrant appointment of substitute
counsel.” Strickland, 293 Mich App at 398 (citation omitted).

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 Payne delayed until trial was beginning to both withdraw his plea and to request
substitution of counsel. All parties were ready to proceed and the matter had been pending for
more than a year. “A substitution of counsel at that point would have unreasonably delayed the
judicial process.” Id. at 399. Further, any complaint by Payne that he lacked recent interaction
with counsel is directly attributable to Payne’s acceptance of a plea agreement. With the
agreement in place, the need for counsel’s involvement was extremely limited. It was only
Payne’s last minute decision to withdraw his plea on the day of his testimony that altered his
situation and limits the validity of any complaint regarding counsel’s lack of recent
communication. As such, the trial court did not abuse its discretion in denying Payne’s request
for alternative counsel.

Payne further asserts, on appeal, that the denial of his request for substitute counsel
violated his constitutional rights. “The Sixth Amendment guarantees an accused the right to
retain counsel of choice.” People v Akins, 259 Mich App 545, 556; 675 NW2d 863 (2003)
(citation and quotation marks omitted). “However, the right to counsel of choice is not
absolute.” Id. at 557 (citation and quotation marks omitted). “A balancing of the accused’s right
to counsel of his choice and the public’s interest in the prompt and efficient administration of
justice is done in order to determine whether an accused’s right to choose counsel has been
violated.” Id. (citations and quotation marks omitted).

“When reviewing a trial court’s decision to deny a defense attorney’s motion to
withdraw and a defendant’s motion for a continuance to obtain another attorney,
we consider the following factors: (1) whether the defendant is asserting a
constitutional right, (2) whether the defendant has a legitimate reason for asserting
the right, such as a bona fide dispute with his attorney, (3) whether the defendant
was negligent in asserting his right, (4) whether the defendant is merely
attempting to delay trial, and (5) whether the defendant demonstrated prejudice
resulting from the trial court's decision.” [Id., quoting People v Echavarria, 233
Mich App 356, 369; 592 NW2d 737 (1999).]

Payne’s request for substitute counsel happened on the day of trial. His claims of dissatisfaction
with his attorney comprised issues pertaining to the frequency of his communication, but did not
allege any deficiency in performance or disagreement regarding the theories to be pursued at
trial. The trial court’s refusal to accommodate Payne’s request, given that juries had already
been selected and witnesses detained and given the pendency of this matter for over one year,
coupled with the timing of Payne’s request and the insufficient basis for the request, was not an
abuse of discretion. Any postponement of these trials would have placed a heavy burden on the
trial court and Payne’s codefendants, their trial counsel and witnesses. The trial court’s refusal
to permit a substitution of counsel at a late juncture in the proceedings was not a violation of
Payne’s constitutional rights.

IX. IMPROPER VOUCHING

Payne argues that the prosecutor improperly elicited testimony from Griggs regarding his
plea in exchange for leniency in sentencing for the homicides. It was disclosed that, as part of
the plea agreement for Griggs, he was to testify “truthfully” at trial. Payne asserts this was the

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equivalent of the prosecutor improperly vouching for the credibility of Griggs and that his trial
counsel was ineffective for failing to object to this testimony.

“Appellate review of improper prosecutorial remarks is generally precluded absent
objection by counsel because the trial court is otherwise deprived of an opportunity to cure the
error. An exception exists if a curative instruction could not have eliminated the prejudicial
effect or where failure to consider the issue would result in a miscarriage of justice.” People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994) (citations omitted). Payne did not object
to the inquiries by the prosecutor regarding Griggs’s plea agreement, and therefore his claim of
prosecutorial misconduct is not preserved for appellate review. Unpreserved issues of
prosecutorial misconduct are reviewed for “plain error that affected [defendant’s] substantial
rights.” People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). “We will reverse
only if we determine that, although defendant was actually innocent, the plain error caused him
to be convicted, or if the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings, regardless of his innocence.” Id. (citation and quotation marks omitted).

At the initiation of Griggs’s testimony, the prosecutor questioned Griggs regarding his
status as a defendant in the case and his agreement to enter a guilty plea along with the terms of
that agreement. Specifically, on inquiry, Griggs acknowledged his plea to two counts of second-
degree murder and a count of felony-firearm in exchange for a sentence of 10 to 40 years’
imprisonment for each second-degree murder conviction, plus two years’ imprisonment for the
felony-firearm conviction. Griggs appeared at trial in a prison uniform verifying his current
incarceration. In addition, the following exchange occurred between the prosecutor and Griggs:

Q. And you’d agree to plead guilty to two counts of second degree
murder and you agreed also to testify truthfully, didn’t you?

A. Yes.

Q. And you agreed to give a truthful statement, correct?

A. Yes.

* * *

Q. So Mr. Griggs you plead guilty on February 5, 2013, is that correct?

A. Yes.

Q. Mr. Griggs you gave Sergeant Hart a statement in relation to your plea
agreement, correct?

A. Yes.

Q. And you indicted that that was—that you agreed to give a truthful
statement, is that your testimony?

A. Yes.

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Payne contends on appeal that the prosecutor’s elicitation from Griggs of an acknowledgement
that he was required to testify truthfully as part of his plea agreement constituted improper
vouching regarding the credibility of this witness and that the failure of Payne’s counsel to object
comprised ineffective assistance of counsel.

“A prosecutor is not permitted to vouch for the credibility of his or her witnesses to the
effect that [the prosecutor] has some special knowledge concerning a witness’[s] truthfulness.
However, merely [b]y calling a witness who testifies pursuant to an agreement requiring him to
testify truthfully, the Government does not insinuate possession of information not heard by the
jury and the prosecutor cannot be taken as having expressed his personal opinion on a witness’[s]
veracity.” People v Wood, 307 Mich App 485, 505; 862 NW2d 7 (2014) (citations and quotation
marks omitted). A review of the trial court record demonstrates that the inquiry by the
prosecutor with regard to Griggs’s plea agreement did not encompass an improper “suggest[ion]
that the government had some special knowledge, not known to the jury, that the witness was
testifying truthfully.” People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995) (citations
and quotation marks omitted).

“Further, even if the prosecutor’s statements were improper, the trial court’s instructions,
which emphasized that the prosecutor’s [questions and arguments were] not evidence and that
the jury alone had the responsibility to determine witness credibility, cured any potential
prejudice.” Wood, 307 Mich App at 506. Based on the absence of any comments regarding the
credibility of Griggs, the prosecutor’s questioning was not improper and sufficiently limited.

Payne also contends that the failure of his trial counsel to object to the inappropriate
remarks constitutes ineffective assistance of counsel. Because the prosecutor’s questions did not
comprise improper conduct, the failure of defense counsel to object to the prosecution’s
questioning did not constitute ineffective assistance of counsel.

X. DOUBLE JEOPARDY

The judgments of sentence for Williams, Payne and Miller reflect multiple convictions of
murder for one victim, reflecting the improper imposition of multiple punishments for offenses
arising out of a single transaction. Specifically, Williams, Payne and Miller have multiple
convictions and sentences for the murder of Bostick, with Williams and Payne also having
multiple murder convictions and sentences for the death of Jordan.

To preserve appellate review of a double-jeopardy violation, a defendant must object at
the trial court level. See People v Meshell, 265 Mich App 616, 628; 696 NW2d 754 (2005).
Defendants did not object at sentencing or raise the issue of double jeopardy until appeal.
However, a double-jeopardy issue “presents a significant constitutional question that will be
considered on appeal regardless of whether the defendant raised it before the trial court.” People
v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008). This Court reviews “an unpreserved
claim that a defendant’s double jeopardy rights have been violated for plain error that affected
the defendant’s substantial rights, that is, the error affected the outcome of the lower court
proceedings. Reversal is appropriate only if the plain error resulted in the conviction of an
innocent defendant or seriously affected the fairness, integrity, or public reputation of the judicial
proceedings.” Id. (citation omitted).

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 “Multiple murder convictions arising from the death of a single victim violate double
jeopardy.” People v Clark, 243 Mich App 424, 429; 622 NW2d 344 (2000). “The remedy for
conviction of multiple offenses in violation of double jeopardy is to affirm the conviction on the
greater charge and to vacate the conviction on the lesser charge.” Meshell, 265 Mich App at
633-634.

With regard to Williams, it is undisputed that a jury found him guilty of both felony
murder, MCL 750.316(1)(b), and first-degree premeditated murder, MCL 750.316(1)(a), with
regard to Bostick. Williams’s judgment of sentence improperly lists both murder convictions
and sentences for this one victim. This Court will uphold a single conviction premised on two
alternative theories. People v Williams, 265 Mich App 68, 72; 692 NW2d 722 (2005), aff’d 475
Mich 101 (2006). It is incorrect, as in this case, for the judgment of sentence to reflect two
counts of murder and two sentences for the one victim. Cf. id.; see also People v Bigelow, 229
Mich App 218, 220-221; 581 NW2d 744 (1998). Double jeopardy protections entitle Williams
to a judgment of sentence that accurately reflects only one count of murder supported by two
theories and only one sentence for this one victim. Id. A similar issue occurs with regard to
Williams’s convictions and sentences pertaining to Jordan. Williams was found guilty of both
felony murder, MCL 750.316(1)(b), and second-degree murder, MCL 750.317, with regard to
Jordan. In this situation, the appropriate remedy is to affirm the conviction of the higher charge
and to vacate the lower conviction.” Meshell, 265 Mich App at 633-634.

As such, this Court must remand to the trial court for a correction of the judgment of
sentence for Williams. The amended judgment of sentence should indicate one conviction of
first-degree murder based on two theories, with one sentence for first-degree murder, with regard
to Bostick. The judgment of sentence for Williams should also be amended to reflect one
conviction and sentence for felony murder with regard to Jordan and the vacating of the
conviction and sentence for second-degree murder.

A similar need for amendment of Payne’s judgment of sentence exists. Payne was
convicted and sentenced for second-degree murder, MCL 750.317, and felony murder, MCL
750.316(1)(b), for Bostick’s death. He was convicted and sentenced for first-degree
premeditated murder, MCL 750.316(1)(a), and felony murder, MCL 750.316(1)(b), for Jordan’s
death. We remand this matter to the trial court for correction of Payne’s judgment of sentence to
reflect a conviction and sentence for felony murder for Bostick’s death and a conviction and
sentence for first-degree murder for Jordan’s death.

Although Miller has not raised a double jeopardy issue on appeal, he is also entitled to
the correction of his judgment of sentence. Miller was convicted of both second-degree murder,
MCL 750.317, and felony murder “based on torture,” MCL 750.316(1)(b), with regard to
Bostick. In this circumstance, it is appropriate to affirm the conviction of the higher charge and
to vacate the lower conviction.

XI. WARRANTLESS SEARCH

Williams contends that the police lacked a reasonable justification for entry into the
Cruse Street residence without having first procured a warrant. As a result, Williams argues, any
evidence seized from the residence by officers should have been suppressed at trial.

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 A review of the lower court record indicates that Williams did not file a separate motion
or join in the motion by Miller to preclude the evidence.5 Williams did not object to the
admission of the now-challenged evidence at trial. As such, this issue is not preserved for
appellate review. People v Carroll, 396 Mich 408, 411-412; 240 NW2d 722 (1976). Because
Williams did not preserve this issue by moving to suppress the evidence in the trial court, this
Court’s review is limited to ascertaining whether plain error occurred that affected his substantial
rights. People v Cross, 281 Mich App 737, 738; 760 NW2d 314 (2008). In accordance with the
plain error rule, Williams is required to demonstrate that (a) an error occurred, (b) the error was
plain (i.e., clear or obvious), and (c) the error affected a substantial right. Id.

“The lawfulness of a search or seizure depends on its reasonableness.” People v
Beuschlein, 245 Mich App 744, 749; 630 NW2d 921 (2001). “A warrantless search is
unreasonable per se unless there exists both probable cause and circumstances establishing one
of the delineated exceptions to the warrant requirement.” People v Anthony, 120 Mich App 207,
210; 327 NW2d 441 (1982). “Probable cause has been defined as a state of mind which stems
from some fact, circumstance or information which would create an honest belief in the mind of
a reasonably prudent person.” Id. at 211.

The exclusionary rule requires the suppression at trial of evidence seized in an
unconstitutional search. People v Hawkins, 468 Mich 488, 498-499; 668 NW2d 602 (2003).
“Additionally, the exclusionary rule prohibits the introduction into evidence of materials and
testimony that are the products or indirect results of an illegal search, the so-called ‘fruit of the
poisonous tree’ doctrine.” People v Stevens, 460 Mich 626, 633-634; 597 NW2d 53 (1999).
Application of the exclusionary rule “has been restricted to those instances where its remedial
objectives are thought most efficaciously served.” People v Reese, 281 Mich App 290, 295; 761
NW2d 405 (2008) (citation and quotation marks omitted).

“A search or seizure is considered unreasonable when it is conducted pursuant to an
invalid warrant or without a warrant where the police officer’s conduct does not fall within one
of the specific exceptions to the warrant requirement.” People v Hellstrom, 264 Mich App 187,
192; 690 NW2d 293 (2004). Several exceptions exist to the warrant requirement, including
exigent circumstances, emergency assistance and community caretaking. People v Slaughter,
489 Mich 302, 311-312; 803 NW2d 171 (2011); People v Lemons, 299 Mich App 541, 545; 830
NW2d 794 (2013).

5
Before trial, counsel for Miller raised an issue pertaining to a possible challenge to evidence
obtained from the Cruse residence and the need for a suppression hearing. Based on the oral
argument presented, the trial court denied Miller’s contention regarding the illegality of the
search and seizure of evidence. The trial court did, however, leave the door open for counsel to
bring a suppression motion “if you think you get something regarding the suppression issue.”
The lower court record fails to demonstrate that any of the counsel for defendants took advantage
of this option.

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 Pursuant to the exigent circumstances exception . . . the police may enter a
dwelling without a warrant if the officers possess probable cause to believe that a
crime was recently committed on the premises, and probable cause to believe that
the premises contain evidence or perpetrators of the suspected crime. The police
must further establish the existence of an actual emergency on the basis of
specific and objective facts indicating that immediate action is necessary to (1)
prevent the imminent destruction of evidence, (2) protect the police officers or
others, or (3) prevent the escape of a suspect. If the police discover evidence of a
crime following the entry without a warrant, that evidence may be admissible. [In
re Forfeiture of $176,598, 443 Mich 261, 271; 505 NW2d 201 (1993) (citation
omitted).]

Based on testimony elicited at trial, Detroit police officer Brian Headapohl and his
partner, Eric Smigielski, went to the Cruse Street address following a telephone call to the police.
Both officers were in uniform and arrived in a marked patrol vehicle. They met with a woman
outside the residence, presumed to have telephoned the police. Upon approaching the residence,
numerous spent rifle casings were observed littering the ground. The storm door and side door
to the residence were propped open and suspected blood was observed on the inner door; there
was also an odor of bleach. Headapohl asserts that he knocked and announced his presence as a
police officer several times without receiving a response from the interior of the home. The
officers initially went into the basement of the home, which was open and accessible, and
observed additional drops of blood on the stairwell. After assuring that the basement was clear,
the officers returned to the upstairs and again knocked and announced their presence. When no
response was elicited, Headapohl initiated several kicks to the bottom of the door to gain entry.
When the door split, a hand emerged from the interior of the home, holding a .357 caliber
weapon. Headapohl again announced his status as a police officer and withdrew to the exterior
of the home and the individual holding the handgun retracted his hand back into the home.
Officers then observed Loree Williams exiting the front door of the home, detained Loree and
conducted a protective sweep of the premises.

Officers were dispatched to the home premised on a telephone call from an individual,
suggesting suspicious activity or a concern for the residents of the home. Upon arrival, police
observed numerous discharged rifle cartridges around the home, an open door, suspected blood,
an odor of bleach and a lack of response from anyone within the premises. Based on the
telephone call that initiated their arrival at the home, coupled with their observation of the
physical conditions, the officers were justified in seeking entry to the home without a warrant
based on the exigent circumstances exception, having “probable cause to believe that a crime
was recently committed on the premises, and probable cause to believe that the premises contain
evidence or perpetrators of the suspected crime.” Id. As they were securing access to the
premises, officers were confronted with a weapon and a possible threat to their safety or the
safety of others in the neighborhood, which served as further justification to continue to seek
entry into the premises.

The circumstances also render the emergency aid exception applicable. The emergency
aid exception permits the police to enter an area without a warrant “under circumstances where
they believe some person is in need of assistance or to prevent serious harm to someone.”

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People v Davis, 442 Mich 1, 12; 497 NW2d 910 (1993). In accordance with the emergency aid
exception,

police may enter a dwelling without a warrant when they reasonably believe that a
person within is in need of immediate aid. They must possess specific and
articulable facts that lead them to this conclusion. In addition, the entry must be
limited to the justification therefore, and the officer may not do more than is
reasonably necessary to determine whether a person is in need of assistance, and
to provide that assistance. [Id. at 25-26 (footnotes omitted).]

This exception does not necessitate that officers have “ironclad proof of a likely serious, life-
threatening injury;” it “requires only an objectively reasonable basis for believing that a person
within [the house] is in need of immediate aid.” Michigan v Fisher, 558 US 45, 47, 49; 130 S Ct
546; 175 L Ed 2d 410 (2009) (citations and quotation marks omitted). The numerous discharged
rifle cartridges, suspected blood, bleach odor and failure to obtain a response from the interior of
the home after repeated knocking and announcement of their presence made it reasonable for
officers to seek to gain entry under the emergency aid exception.

On appeal, Williams suggests that officers failed to announce their presence and identify
themselves before seeking to gain entry to the home. This suggestion is without support in the
lower court record. First, Williams was not present at the home when officers tried to gain entry
and, therefore, lacked personal knowledge regarding their behavior. Second, at trial it was never
raised or asserted that the police officers did not knock and announce their presence or try to gain
the attention of anyone within the home. Finally, Williams’s assertion is directly contradicted by
the testimony of Headapohl elicited at trial, wherein he averred that he knocked loudly numerous
times on two separate occasions (before entry into the basement and after inspection of the
basement) and verbally announced his presence as a police officer. There was no evidence or
testimony submitted by Williams, or any of his codefendants, that was contrary to this testimony.

More importantly, Williams ignores that the officers did not enter into the upper level of
the home or seize any evidence until after they had been confronted by an individual brandishing
a weapon at them. While the individual withdrew the weapon upon realization that police were
trying to gain entry into the home, this person did not then unlock the door for police but rather
attempted to flee the scene wearing just underclothes. It was the detention of Loree Williams
while leaving the premises and only partially clothed that led the officers to enter the upstairs of
the home and conduct a protective sweep. The protective sweep was necessary because the
officers had already been threatened with a weapon, which had to be in the residence because
Loree exited the home unarmed. It was during this protective sweep that officers observed and
seized weapons, ammunition and narcotics. “The Fourth Amendment allows a properly limited
protective sweep in conjunction with an in-home arrest when the searching officer possesses a
reasonable belief based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” Maryland v Buie, 494 US 325, 337; 110
S Ct 1093; 108 L Ed 2d 276 (1990); People v Cartwright, 454 Mich 550, 556-557; 563 NW2d
208 (1997); People v Snider, 239 Mich App 393, 411; 608 NW2d 502 (2000); People v Shaw,
188 Mich App 520, 524-525; 470 NW2d 90 (1991). “Such a search is quick and limited, and
conducted for the sole purpose of ensuring the safety of police officers and other persons.”
Cartwright, 454 Mich at 557. From the perspective of the officers, id. at 559, the protective

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search of the residence was reasonable under the circumstances. The officers needed to ascertain
whether anyone else was present in the residence and were aware that a weapon was located
within based on the initial confrontation with the individual detained. It was appropriate to
determine that no one else was in danger or could present a threat to the officers. While in the
home, weapons, ammunition and narcotics were observed in plain view and could be properly
seized. People v Champion, 452 Mich 92, 101-102; 549 NW2d 849 (1996).

XII. SUFFICIENCY OF THE EVIDENCE

Miller argues that the evidence was insufficient to sustain any of his convictions. Miller
challenges his convictions, but is vague and non-specific, other than to question the credibility of
the two eyewitnesses, Griggs and Lewis. Although Miller generally asserts that the prosecution
failed to meet its burden with regard to proof of each element of the crimes charged, he does not
identify which elements lacked sufficient proof. Miller fails to adequately develop his argument
by providing citations to the evidence or expounding on the elements that were not proven. “It is
not enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” People v Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006), aff’d 482 Mich 851
(2008) (citation and quotation marks omitted). Despite this deficiency, we will address each
conviction.

A claim regarding the sufficiency of the evidence is reviewed de novo. See People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). As discussed in this Court’s recent
opinion of People v Bosca, 310 Mich App 1, 5; NW2d ___ (2015):

In determining whether the prosecutor has presented sufficient evidence to
sustain a conviction, an appellate court is required to take the evidence in the light
most favorable to the prosecutor. [T]he question on appeal is whether a rational
trier of fact could find the defendant guilty beyond a reasonable doubt. All
conflicts in the evidence must be resolved in favor of the prosecution and we will
not interfere with the jury’s determinations regarding the weight of the evidence
and the credibility of the witnesses. Circumstantial evidence and reasonable
inferences arising from that evidence can constitute satisfactory proof of the
elements of a crime. [B]ecause it can be difficult to prove a defendant’s state of
mind on issues such as knowledge and intent, minimal circumstantial evidence
will suffice to establish the defendant’s state of mind, which can be inferred from
all the evidence presented. To evaluate the sufficiency of the evidence, it is
necessary to review the evidence in the context of the elements of the charged
crimes. [Citations and quotation marks omitted.]

A challenge to the trial court’s decision on a motion for a directed verdict has the same standard
of review as a challenge to the sufficiency of the evidence. See People v Aldrich, 246 Mich App
101, 122; 631 NW2d 67 (2001). However, only the evidence presented before the motion for a
directed verdict was made is considered. People v Hampton, 407 Mich 354, 368; 285 NW2d 284
(1979).

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 Miller was convicted of both second-degree murder, MCL 750.317, and felony murder
“based on torture,” MCL 750.316(1)(b), with regard to Bostick. As noted in conjunction with
Issue X, it is appropriate to affirm the conviction of the higher charge and to vacate the lower
conviction. The elements of felony murder are: “(1) the killing of a human being, (2) with the
intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm
with knowledge that death or great bodily harm was the probable result [i.e., malice], (3) while
committing, attempting to commit, or assisting in the commission of any of the felonies
specifically enumerated in [MCL 750.316(1)(b) . . . ],” People v Smith, 478 Mich 292, 318-319;
733 NW2d 351 (2007), which include torture, MCL 750.85. Torture occurs when “[a] person . .
., with the intent to cause cruel or extreme physical or mental pain and suffering, inflicts great
bodily injury or severe mental pain or suffering upon another person within his or her custody or
physical control . . . .” MCL 750.85(1). The term “cruel” is defined as “brutal, inhuman,
sadistic, or that which torments.” MCL 750.85(2)(a). “Severe mental pain or suffering” is
defined to include:

[A] mental injury that results in a substantial alteration of mental functioning that
is manifested in a visibly demonstrable manner caused by or resulting from any of
the following:

(i) The intentional infliction or threatened infliction of great bodily injury.

(ii) The administration or application, or threatened administration or
application, of mind-altering substances or other procedures calculated to disrupt
the senses or the personality.

(iii) The threat of imminent death.

(iv) The threat that another person will imminently be subjected to death,
great bodily injury, or the administration or application of mind-altering
substances or other procedures calculated to disrupt the senses or personality.
[MCL 750.85(2)(d).]

Proof that a victim suffered pain is not required. MCL 750.85(3).

Miller was charged as an aider and abettor, with the prosecutor’s theory being that
Williams was the principal. “To prove felony murder on an aiding and abetting theory, the
prosecution must show that the defendant (1) performed acts or gave encouragement that assisted
the commission of the killing of a human being, (2) with the intent to kill, to do great bodily
harm, or to create a high risk of death or great bodily harm with knowledge that death or great
bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in
the commission of the predicate felony.” People v Riley (After Remand), 468 Mich 135, 140;
659 NW2d 611 (2003).

In order to satisfy the malice standard required . . ., the prosecution must show
that the aider and abettor either intended to kill, intended to cause great bodily
harm, or wantonly and willfully disregarded the likelihood that the natural
tendency of his behavior was to cause death or great bodily harm. Further, if an
aider and abettor participates in a crime with knowledge of the principal’s intent
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 to kill or to cause great bodily harm, the aider and abettor is acting with ‘wanton
and willful disregard’ sufficient to support a finding of malice. [Id.]

Sufficient evidence was adduced to convict Miller of felony murder premised on the
felony of torture and under an aiding and abetting theory. Miller was armed with an assault rifle
and followed instructions provided by Williams to threaten and assault Lewis and Bostick.
Bostick was made to strip and get on the floor while being threatened with weapons held by
Miller and his codefendants. Payne and Griggs struck Lewis and Bostick with fists and guns in
response to an instruction from Williams. Bostick was alleged to have verbally indicated an
awareness that Miller and his codefendants were going to kill them. The evidence admitted
regarding the treatment of Bostick before he was killed demonstrates that he was subjected to
cruel behavior intended to induce fear, MCL 750.85(2)(a), (d), meeting the severe mental pain or
suffering requirement for torture under MCL 750.85(2)(d)(iii) and substantiating Miller’s
participation and facilitation of the acts of his principal, Williams. In addition, Griggs testified
that Williams verbally expressed an intent to kill someone before Lewis arrived at the residence,
indicating that Miller would be aware of the principal’s intent. Given the totality of the
circumstances and Miller’s participation in the events leading up to the murders, coupled with
the efforts to remove the bodies and conceal their identities, there was sufficient evidence to
convict Miller as an aider and abettor of the felony murder of Bostick.

Miller was also convicted of the second-degree murder of Jordan. “The elements of
second-degree murder consist of (1) a death, (2) caused by an act of the defendant, (3) with
malice, and (4) without justification or excuse. The term malice has been defined as 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.” People v Henderson, 306 Mich App 1, 9-10; 854 NW2d 234 (2014) (citation and
quotation marks omitted). Jordan died as a result of a single gunshot wound to the head. Her
body was so severely burned post-mortem that the medical examiner could only verify her
identity through dental records. “[I]f an aider and abettor participates in a crime with knowledge
of his principal’s intent to kill or to cause great bodily harm, he is acting with ‘wanton disregard’
sufficient to support a finding of malice. . . .” People v Kelly, 423 Mich 261, 278-279; 378
NW2d 365 (1985). Miller was armed during the events and followed the instructions of
Williams to threaten Jordan and the other victims. Griggs testified that Williams had expressed
an intent to kill someone earlier in the day before the arrival of Lewis, Bostick and Jordan.
Miller facilitated not only the murder of Jordan but also the attempt to conceal the murder by
helping to burn the victim beyond recognition. Miller was observed assisting with the removal
of one of the bodies from the Cruse Street residence and placing it in the trunk of the car rented
by Lewis. Miller also drove to a gas station to procure the accelerant presumably used in
igniting the vehicle and bodies. Sufficient evidence was adduced to sustain Miller’s second-
degree murder conviction of Jordan.

Miller was convicted of three counts of torture involving Bostick, Jordan and Lewis.
Testimony and evidence were presented at trial to show that Miller was involved in threatening
the three victims with an assault rifle and engaging in physical assaults on Bostick and Lewis.
The actions taken by Miller and his codefendants were sufficient to comprise the “severe mental
pain or suffering” necessary for a conviction of torture given the infliction of injury on Bostick
and Lewis, MCL 750.85(2)(d)(i), and the “threat of imminent death,” MCL 750.85(2)(d)(iii), as

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recognized and expressed by Bostick as the events unfolded. “Custody or physical control” is
defined as “the forcible restriction of a person’s movements or forcible confinement of the
person so as to interfere with that person’s liberty, without that person’s consent or without
lawful authority.” MCL 750.85(2)(b). The use of weapons to intimidate and control the victims
is sufficient to constitute a “forcible restriction” or “confinement” element of torture. Finally,
testimony indicated that Williams expressed an intent earlier in the day to kill someone and the
actions and directives of Williams, executed with the complicity of Miller and his codefendants,
were sufficient to demonstrate the requisite intent for the crime of torture under an aiding and
abetting theory.

Miller was also convicted of three counts of unlawful imprisonment. In accordance with

MCL 750.349b(1):

A person commits the crime of unlawful imprisonment if he or she
knowingly restrains another person under any of the following circumstances:

(a) The person is restrained by means of a weapon or dangerous
instrument.

(b) The restrained person was secretly confined.

(c) The person was restrained to facilitate the commission of another
felony or to facilitate flight after commission of another felony.

Testimony was elicited that Miller had an automatic rifle that he used to threaten and subdue the
three victims both in the upstairs level of the home and within the basement. As such, sufficient
evidence was adduced to sustain his three convictions for unlawful imprisonment under MCL
750.349b(1)(a), for each of the identified victims.

Miller was convicted of two counts of mutilation of a dead body involving the burning of
the bodies of Bostick and Jordan. MCL 750.160 provides, in relevant part:

A person, not being lawfully authorized so to do, who shall wilfully dig
up, disinter, remove, or convey away a human body, or the remains thereof, from
the place where the body may be interred or deposited, or who shall knowingly
aid in such disinterment, removal, or conveying away, or who shall mutilate,
deface, remove, or carry away a portion of the dead body of a person, whether in
his charge for burial or otherwise, whenever the mutilation, defacement, removal,
or carrying away is not necessary in any proper operation in embalming the body
or for the purpose of a postmortem examination, and every person accessory
thereto, either before or after the fact, shall be guilty of a felony, punishable by
imprisonment for not more than 10 years, or by fine of not more than $5,000.00.
[Emphasis added.]

Defendants stipulated at trial that the burning of bodies constituted mutilation, and undisputed
evidence was admitted showing that Jordan’s body was burned beyond recognition and that the

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body of Bostick also suffered serious damage from thermal injury, having both been contained in
a vehicle that was the subject of arson.

In accordance with an aiding and abetting theory, MCL 767.39 provides: “Every person
concerned in the commission of an offense, whether he directly commits the act constituting the
offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted,
indicted, tried and on conviction shall be punished as if he had directly committed such offense.”
Although “[m]ere presence, even with knowledge that an offense is about to be committed, is not
enough to make one an aider or abettor,” People v Rockwell, 188 Mich App 405, 412; 470 NW2d
673 (1991) (citation and quotation marks omitted), “ ‘[a]iding and abetting’ describes all forms
of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that
might support, encourage, or incite the commission of a crime,’ ” Carines, 460 Mich at 757
(citation omitted). Miller drove his vehicle to the gas station at the behest of Williams to procure
gasoline in a gas can. Intent “may be inferred from all the facts and circumstances. Factors that
may be considered include a close association between the defendant and the principal, the
defendant’s participation in planning or executing the crime, and evidence of flight after the
crime.” Id. at 758. Given Miller’s participation in transporting Lewis, wrapped in a sheet, to the
trunk of the Taurus, along with his procurement of the accelerant used to set fire to the vehicle
with the bodies contained therein, sufficient evidence was admitted to sustain Miller’s
convictions on the two counts of mutilation of a dead body.

Miller was also convicted of felon in possession of a firearm, MCL 750.224f, and felony-
firearm, MCL 750.227b. To establish the crime of felon in possession of a firearm, it must be
shown that: (a) Miller was in the possession of a firearm, (b) when he was ineligible to do so due
to a conviction of a felony, and (c) the requirements for regaining his eligibility to possess a
firearm had not been met. MCL 750.224f. At trial, a stipulation was entered acknowledging that
Miller had a previous felony conviction and was ineligible to possess a weapon on April 29,
2012. While conflicting evidence was admitted involving a statement from Eatmon, testimony
was elicited from Lewis and Griggs that Miller was in possession of an assault rifle during the
events that transpired at the Cruse Street residence. As such, sufficient evidence existed to
sustain his conviction for felon in possession of a firearm.

Finally, Miller was convicted of felony-firearm, MCL 750.227b, which requires the
possession of a firearm during the commission of or attempted commission of a felony. A
charge of felon in possession of a firearm, MCL 750.224f, can constitute the underlying felony
for felony-firearm. People v Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003). Sufficient
evidence was adduced to sustain this conviction premised on the testimony that Miller had an
assault rifle during the events while committing many felonies, including felon in possession of a
firearm.

Miller specifically contends that the testimony of Griggs and Lewis was inherently
incredible and, therefore, insufficient to sustain his convictions of the crimes. This Court,
however, will not interfere with the role of the trier of fact to determine the weight of the
evidence or the credibility of the witnesses presented. People v Eisen, 296 Mich App 326, 331;
820 NW2d 229 (2012). Even further, this Court must defer to the trier of fact’s credibility
determinations “unless it can be said that directly contradictory testimony was so far impeached
that it was deprived of all probative value or that the [trier of fact] could not believe it, or

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contradicted indisputable physical facts or defied physical realities. . . .” People v Lemmon, 456
Mich 625, 645-646, 647; 576 NW2d 129 (1998) (citation and quotation marks omitted). While
certain discrepancies existed in the testimony elicited, the testimony of Lewis and Griggs was
consistent regarding the major elements and events of the crimes charged. The testimony
elicited was not so inconsistent or impeached that it lacked any probative value. As such, this
Court must defer to the trial court’s determination of credibility.

XIII. CONCLUSION

In Docket No. 320320, we affirm the convictions and sentences of Seabrooks. In Docket
No. 320327, we vacate Payne’s second-degree murder conviction and sentence with regard to
Bostick. We remand to the trial court to amend Payne’s judgment of sentence to reflect one
conviction and sentence for first-degree murder under two theories for Jordan. We affirm the
remainder of Payne’s convictions and sentences. In Docket No. 320406, we vacate the sentence
and conviction for second-degree murder for Williams with regard to the killing of Jordan. We
remand to the trial court to amend Williams’s judgment of sentence to reflect one conviction for
felony murder under two theories for Bostick. We affirm the remaining convictions and
sentences. In Docket No. 320502, we vacate Miller’s conviction of second-degree murder with
regard to Bostick, affirm the remaining convictions and sentences, and remand to the trial court
for amendment of the judgment of sentence. We do not retain jurisdiction.

/s/ Joel P. Hoekstra
/s/ Kathleen Jansen
/s/ Patrick M. Meter

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