People of Michigan v. Tyree Jamaul Culberson

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 7, 2021
Plaintiff-Appellee,

V No. 344075
Genesee Circuit Court
TYREE JAMAUL CULBERSON, LC No. 17-040841-FC

Defendant-Appellant.

ON REMAND

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

PER CURIAM.

Following a jury trial, defendant was convicted of three counts of first-degree premeditated
murder, MCL 750.316(1)(a), first-degree arson, MCL 750.72, possession with intent to deliver
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver
methamphetamine, MCL 333.7401(2)(b)(i), felon in possession of a firearm, MCL 750.224f,
carrying a concealed weapon (CCW), MCL 750.227, and seven counts of possession of a firearm
during the commission of a felony, MCL 750.227b. The trial court sentenced defendant as a
second-offense habitual offender, MCL 769.10, to serve terms of imprisonment of life without
parole for each murder conviction, 462 to 700 months for the arson conviction, 2 to 30 years for
each drug conviction, 12 to 90 months each for the felon-in-possession and CCW convictions, and
two years for each felony-firearm conviction. Defendant appeals as of right. We affirm.1

1
We originally affirmed defendant’s convictions in People v Culberson, unpublished per curiam
opinion of the Court of Appeals, issued December 26, 2019 (Docket No. 344075), aff’d in part
and remanded in part ___ Mich ___; 950 NW2d 50 (2020). Our Supreme Court denied defendant’s
application for leave to appeal for the issues we decided on the merits (see Parts II through VI of
this opinion, in which we reiterate in full the merits rulings of our original opinion), but remanded
to this Court “for articulation of [our] reasons for finding a lack of merit in the questions presented

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 I. FACTS

This case arises from the deaths of Tiffany Loisell (Loisell), Kenneth Curler (Curler), and
John Naum (Naum), whose bodies were recovered from a burning house on Woodrow Avenue in
Flint on the morning of December 17, 2016. Autopsies revealed that the victims died from gunshot
wounds. Prosecution witnesses testified that, before December 17, 2016, defendant was briefly
residing at, and selling drugs from, the Flint house, when tensions developed between him and
Loisell, who was a renter of the house. In particular, Loisell had recently stolen some money,
some drugs, a black gun, and a telephone from defendant. In response, defendant exhibited a
persistent brooding anger, which included displaying a pink revolver and saying, just days before
the victims’ deaths and arson, that he was “just gonna kill somebody.”

During a search of the home of defendant’s companion, which was conducted while
defendant was present, a pink revolver was discovered hidden in the box spring of a bed. Expert
testimony linked a spent bullet recovered from the body of one of the victims, and also a spent
bullet recovered from the shooting scene, to the pink revolver. An expert in DNA analysis opined
that her testing indicated “strong support” that defendant was a contributor to evidence obtained
from that gun.

An arson specialist testified that arsonists typically use isopropyl alcohol or fingernail
polish remover as effective accelerants that leave no sign of their use after a fire, and that empty
bottles for alcohol and nail polish remover were found in the kitchen of the subject house. A
fingerprint expert testified that defendant’s thumbprint was discovered on the nail polish remover
bottle.

On appeal, defendant argues that he was denied a fair trial by the introduction of a graphic
autopsy photograph, belatedly revealed fingerprint evidence, and testimony expressing doubts that
another suspect was involved in the murder of one of the victims, and also by the trial court’s
decision to excuse the attorney for one of the victims from testifying with regard to attorney-client
communications. Defendant additionally argues that the evidence was insufficient to support his
murder and arson convictions. Finding no error, we affirm.

II. PHOTOGRAPHIC EVIDENCE

Defendant argues that the trial court erred by admitting a photograph that defendant
considers “gruesome.” We disagree that it was error to admit the photograph.

This Court reviews a trial court’s evidentiary decisions for an abuse of discretion. People
v Martzke, 251 Mich App 282, 286; 651 NW2d 490 (2002); People v Ho, 231 Mich App 178, 187;
585 NW2d 357 (1998). “A trial court abuses its discretion when its decision falls outside the range
of reasonable and principled outcomes.” People v Waterstone, 296 Mich App 121, 131-132; 818
NW2d 432 (2012). “A trial court also necessarily abuses its discretion when it makes an error of

in the defendant's supplemental [Standard 4] brief.” In re Culberson, ___ Mich ___; 950 NW2d
50 (2020). Consequently, we vacate our original opinion and now articulate our reasons for finding
that the issues presented by defendant in his Standard 4 brief lacked merit.

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law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). “[A] trial court’s
decision on a close evidentiary question ordinarily cannot be an abuse of discretion.” People v
Cameron, 291 Mich App 599, 608; 806 NW2d 371 (2011) (quotation marks and citation omitted).

“Generally, all relevant evidence is admissible at trial.” People v Aldrich, 246 Mich App
101, 114; 631 NW2d 67 (2001). Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Martzke, 251 Mich App at 293 (citation and quotation
marks omitted). “Under this broad definition, evidence is admissible if it is helpful in throwing
light on any material point.” Aldrich, 246 Mich App at 114.

Under MRE 403, however, relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” “MRE 403 does not prohibit prejudicial evidence; rather, it prohibits evidence that is
unfairly prejudicial. In essence, evidence is unfairly prejudicial when there exists a danger that
marginally probative evidence might be given undue weight by the jury.” People v Dixon-Bey,
321 Mich App 490, 513; 909 NW2d 458 (2017). “In reviewing the trial court’s decision for an
abuse of discretion, the appellate court must view the evidence in the light most favorable to its
proponent, giving ‘the evidence its maximum reasonable probative force and its minimum
reasonable prejudicial value.’ ” People v. Head, 323 Mich. App. 526, 540–41, 917 N.W.2d 752,
761 (2018) (citation omitted). “[T]he draftsmen intended that the trial judge be given very
substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair prejudice’ on the
other, and that the trial judge should not be reversed simply because an appellate court believes it
would have decided the matter otherwise.” Id. (citation omitted).

When addressing the admissibility of photographs, this Court held in People v Anderson,
209 Mich App 527, 536; 531 NW2d 780 (1995):

Photographs are admissible if they are substantially necessary or instructive to show
material facts or conditions. Photographs are not inadmissible merely because they
may be gruesome and shocking. However, the trial court should exclude those that
could lead the jury to abdicate its truth-finding function and convict on passion
alone.

Photographs may “also be used to corroborate a witness’ testimony” and “[g]ruesomeness alone
need not cause exclusion.” People v Mills, 450 Mich 61, 76; 537 NW2d 909, 917 (1995), mod
450 Mich 1212 (1995). Finally, “[p]hotographs depicting the nature and extent of a victim’s
injuries may be probative of the defendant’s mental state.” Head, 323 Mich App at 541.

At trial, during the testimony of the forensic pathologist who performed autopsies on the
bodies of the three victims, defense counsel objected to introduction of one of the autopsy
photographs on the grounds that it was “kind of ghastly” and “pretty much a horror effect.” The
challenged image depicted the face of Loisell, and the expert wished to use the image to assist him
in explaining how that victim was both shot in the head and then exposed to the house fire. The
trial court overruled the objection. After the image was admitted into evidence, the expert
described it as follows:

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 So, we’ve cleaned up her face and you’re looking at her face area. And so, you can
see around her eyes there’s sort of that black and blue color, okay? And then in the
left eye, which is toward the top of the screen you can see sort of a red pink area.
That’s the entrance wound . . . that entered and went through the brain.

In our view, the challenged photograph is neither shocking nor otherwise inherently
prejudicial. The photograph was useful to the expert witness and was probative evidence of both
the shooter’s intent and the victim’s exposure to a house fire. Because the photographic evidence
of which defendant complains offered a clear depiction of one victim’s gunshot wound and
surroundings, and also illustrated some of the trauma resulting from exposure to the house fire, it
was probative of the nature and results of some of the criminal conduct at issue. Because the
evidence reflected the plain realities of the situation, the risk of “unfair prejudice” was slight and
thus did not “substantially outweigh[]” the probative value of the evidence, MRE 403 (emphasis
added), particularly after “giving ‘the evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.’ ” Head, 323 Mich App at 540-541 (citation omitted).

Defendant also raises the procedural argument that the trial judge erred by deferring to the
expert witness’s opinion concerning the need for the challenged photograph, thus failing to
exercise its own discretion. See People v Stafford, 434 Mich 125, 134; 450 NW2d 559 (1990)
(holding that a trial court’s failure to exercise its discretion, when properly asked to do so, is itself
an abuse of discretion). But our reading of the transcript does not compel such a cynical view of
how the trial judge responded to the objection. The trial judge weighed both defense counsel’s
concerns regarding a “ghastly . . . horror effect,” and the prosecuting attorney’s arguments that
under the circumstances, showing that the person depicted suffered the results of arson along with
a gunshot wound. The trial judge then stated “[i]f that’s what [the forensic pathologist] needs, I’m
gonna let him decide.” Notwithstanding the trial judge’s deferential wording, the record does not
suggest that the trial judge eschewed examining the challenged image itself. Rather, the trial judge
independently determined that the photograph was admissible and permitted the forensic
pathologist to explain why the admission of the photograph would be helpful to the witness in
explaining his testimony. However, the record fails to establish that the trial judge permitted the
forensic pathologist to determine whether the photograph was admissible. Instead, the record
establishes that the trial judge deferred to the forensic pathologist’s judgment as to whether the
photograph was necessary for the jury to see, in order to understand the expert’s testimony.
Accordingly, we take the trial judge’s announced deference to the expert as support for the expert’s
presentation of important information to the jury, rather than as an abdication of the trial judge’s
responsibility to weigh probative effect against the risk of unfair prejudice. Thus, the trial judge
did not err by admitting the photograph into evidence.

III. ATTORNEY-CLIENT CONFIDENTIALITY

Defendant argues that the trial court erred by permitting Curler’s attorney to invoke the
attorney-client privilege on Curler’s behalf and, accordingly, to not testify at trial about an
altercation between Curler and Curler’s former-wife. We disagree.

This Court reviews a trial court’s evidentiary decisions for an abuse of discretion. Martzke,
251 Mich App at 286. “Whether the attorney-client privilege applies to a communication is a
question of law” subject to review de novo. Krug v Ingham Co Sheriff’s Office, 264 Mich App

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475, 484; 691 NW2d 50 (2004). Constitutional issues are also reviewed de novo. People v Conat,
238 Mich App 134, 144; 605 NW2d 49 (1999).

An attorney has a broad general duty not to “reveal a confidence or secret of a client.”
MRPC 1.6(b)(1). The attorney-client privilege shields an attorney from being compelled to
disclose client information in legal proceedings. See MRE 501 (“Privilege is governed by the
common law, except as modified by statute or court rule.”). This evidentiary privilege inheres in
the constitutional rights against self-incrimination2 and to assistance of counsel.3 “The attorney-
client privilege is one of the oldest recognized privileges for confidential communications. The
privilege is intended to encourage full and frank communication between attorneys and their
clients and thereby promote broader public interests in the observance of law and the
administration of justice.” Swidler & Berlin v United States, 524 US 399, 403; 118 S Ct 2081;
141 L Ed 2d 379 (1998) (quotation marks and citations omitted).

“The scope of the privilege is narrow; it applies only to confidential communications by
the client to his attorney, which are made for the purpose of obtaining legal advice.” Krug, 264
Mich App at 484-485 (quotation marks and citations omitted). “[T]he general rule is that attorney-
client privilege continues after death.” Swidler & Berlin, 524 US at 406.

At trial, one of defense counsel’s strategies was to suggest that someone other than
defendant killed Loisell, Curler, and Naum. In hopes of showing that a severe state of animosity
existed between Curler on one hand, and Curler’s former-wife and her intimate companion Bruce
Benson (Benson), on the other hand, counsel sought to call an attorney who had represented Curler
in an unrelated matter to offer information gleaned from that representation. Specifically, in an e-
mail to the Genesee County managing assistant prosecuting attorney less than one month before
Curler was killed, Curler’s attorney expressed her client’s negative views regarding the
prosecutor’s decision to not charge Curler’s former-wife in connection with an episode of domestic
violence in which the former-wife allegedly stabbed Curler several times. In that email, counsel
claimed that her client had long received serious threats from his former-wife and Benson. Curler’s
attorney resisted revealing any such information, explaining as follows:

I received a subpoena to testify in this matter from [defense counsel]. I
represented Mr. Curler relative to . . . a child protective proceeding prior to his
death. I believe that his privilege about any conversations I had with him, what I
did on his behalf, any permission I had to communicate with other attorneys
regarding his case, all of those communications I believe the privilege survives his
death and he’s not able to waive it. I would be disinclined to answer any questions
regarding my representation of him, my conversations with him, or even my
conversations with third parties relative to that because I don’t believe he can waive
his privilege.

2
US Const, Ams V & XIV; Const 1963 art 1, § 17.
3
US Const, Am VI; Const 1963, art 1, § 20.

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Defense counsel responded as follows:

Well, I would agree that with regard to anything Mr. Curler told her, even
if she discussed it with the prosecuting attorney, those things would be privileged
and the privilege does belong to Mr. Curler who obviously is not here to waive.
However, contained within this communication that she sent, there are some things
that I believe privilege does not apply to.

After entertaining further arguments, the trial court announced that it was “going to recognize [the
attorney-client] privilege and not require her to testify.”

Curler’s former-wife testified at trial. She stated that she and Curler had two young sons,
and that Curler had been mentally and physically abusive and aggressive, but also that Curler had
a personal protection order against her. Curler’s former-wife also admitted in her testimony that
she had stabbed Curler, adding that Curler had received “two non-defensive wounds.”4 Benson
also testified. Both flatly denied any involvement in Curler’s death.

In this case, defendant points out that information offered to an attorney to relay to a
prosecuting authority in hopes of encouraging criminal proceedings is neither obviously
confidential in nature nor obviously disclosed to the attorney for the purposes of obtaining legal
advice. We believe, however, that despite couching its explanation in terms of the privilege against
testifying, the trial court was in fact more generally respecting the broad duty of attorney-client
confidentiality, and that the trial court merely stressed the implications of the privilege for trial
testimony because that was the point at issue in trial. The trial court properly anticipated that
asking Curler’s attorney to testify concerning the communications that led to the e-mail sent to the
prosecutor’s office could easily have touched on strategy concerning litigation over the young sons
of Curler and his former-wife, matters which clearly were privileged. Further, that e-mail was a
piece of advocacy presumably presenting Curler’s account of his former-wife’s behavior in a light
least favorable to her, which in turn was based on privileged communications between Curler and
his former attorney. Under the circumstances presented, the trial court did not abuse its discretion
by declining to parse additional communications between Curler and his lawyer, which were only
potentially non-privileged, for the purpose of effectuating a waiver of the privilege, particularly in
light of the fact that Curler was not present to waive the privilege.

Furthermore, defendant was not prejudiced by the non-admission of the communications
between Curler and his previous attorney, because defendant had an opportunity to cross examine
Curler’s former-wife and Benson at trial. Defense counsel took advantage of that opportunity to
ask Curler’s former-wife about the violence between herself and Curler, and to ask Benson about
his low opinion of Curler. As such, defense counsel was able to present the substance of what he
sought to prove, i.e., that due to long-standing animosity and an admitted history of violence, there
were two other persons, other than defendant, who might have murdered Curler. Moreover, any
testimony by Curler’s attorney about what Curler had told her in regards to his former-wife having
attacked him would have been inadmissible hearsay. “[H]earsay is an unsworn, out-of-court

4
Curler’s former-wife stabbed him 11 times, including twice in the back.

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statement that is offered in evidence to prove the truth of the matter asserted.” People v Musser,
494 Mich 337, 350; 835 NW2d 319 (2013) (citations and quotation marks omitted). The proposed
testimony of Curler’s attorney regarding Curler’s former-wife’s assault of him surely would have
been offered for the truth of the matter asserted, and as such, was inadmissible hearsay. Defendant,
however, argues that these hearsay statements were admissible because their omission would
deprive him of due process. But defendant’s right to present a defense only extends to relevant
and admissible evidence. See People v Hackett, 421 Mich 338, 354; 365 NW2d 120 (1984). We
are unaware of any hearsay exceptions that would have made the testimony of Curler’s attorney
admissible over an otherwise valid hearsay objection, and defendant failed to make any such
arguments on appeal. Thus, any argument that the proposed testimony of Curler’s attorney would
have fallen within an exception to the hearsay rule and thus would have been admissible is
abandoned. See People v Watson, 245 Mich App 572, 587; 629 NW2d 411 (2001) (holding that
“[a]n appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims”); People v Piotrowski, 211 Mich App 527, 530; 536 NW2d
293 (1995) (holding that “by failing to refer this Court to any authority supporting her position,
[the defendant] has effectively abandoned the issue.”).

Defendant alternatively argues that, to the extent that the trial court was obliged to
recognize the existence of any attorney-client privilege or confidentiality, such privilege or
confidentiality should not have been absolute, but instead should have yielded to his need for such
information. The United States Supreme Court has acknowledged that sometimes a recognized
privilege against disclosure must “give way” where the information at issue “is relevant and
helpful to the defense of an accused, or is essential to a fair determination of a cause . . . .” Roviaro
v United States, 353 US 53, 60; 77 S Ct 623; 1 L Ed 2d 639 (1957). Nevertheless, it is well-
established that “the [attorney-client] privilege, where it exists, is absolute.” Diversified Indus,
Inc v. Meredith, 572 F2d 596, 602 (CA 8 1977). There is no basis for instead holding that the
privilege is merely conditional.

IV. SUFFICIENCY OF THE EVIDENCE

Defendant argues that there was insufficient evidence to convict him of first-degree
premeditated murder and first-degree arson. We disagree.

A valid criminal conviction requires proof beyond a reasonable doubt of every element of
every crime. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994). A challenge to the
sufficiency of the evidence to support a criminal conviction presents a question of law subject to
review de novo. People v Herndon, 246 Mich App 371, 415; 633 NW2d 376 (2001). When
reviewing the sufficiency of evidence in a criminal case, a reviewing court must view the evidence
of record in the light most favorable to the prosecution to determine whether a rational trier of fact
could find that each element of the crime was proved beyond a reasonable doubt. Id.

Defendant concedes, for purposes of this appeal, that the evidence was sufficient to
establish that the crimes of murder and arson were committed, but disputes that it was sufficient
to prove his identity as the perpetrator. See People v Yost, 278 Mich App 341, 356; 749 NW2d
753 (2008) (the identity of the offender “is an element in every offense”). Defendant failed to
argue that there was insufficient evidence for any of his other convictions. Thus, we will only

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

“Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to
prove the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
Defendant, however, does not challenge the various pieces of evidence showing his extreme
animosity toward one of the victims, tying him to the gun used in the homicides, and linking him
to the empty bottle of accelerant found at the scene of the arson. This evidence proved that
defendant had a motive and tied him to both the murders and the arson. Rather than discussing
this evidence, however, defendant protests that an “abundance of evidence” demonstrated that
several drug dealers visited, and sometimes resided at, the address in question during periods up
to the time of the instant crimes, and defendant further asserts that “[a]t the time of the trial most
of them were unidentified and not investigated by the police.” Defendant additionally claims that
“[a]t least two of the three victims had life styles that would generate animosity towards them by
others.” Defendant thus completely ignores the standard of review, which requires that we
evaluate the evidence in the light most favorable to the prosecution, and that we not reweigh it;
showing that others might have had motives for acting against one or more of the victims does
nothing to undermine the evidence supporting defendant’s guilt, when viewed under the proper
standard.

In suggesting in particular that Benson might have been the perpetrator, defendant protests
that Benson relied on the statements of disreputable persons to prove his whereabouts at the time
of the crimes, and complains about the limited extent to which Benson was investigated. But just
as reasons to suspect others do not themselves constitute valid challenges to the sufficiency of the
evidence in connection with defendant, neither does setting forth ways in which further
investigation of other suspects might have been attempted. “ ‘Even in a case relying on
circumstantial evidence, the prosecution need not negate every reasonable theory consistent with
the defendant’s innocence, but need merely introduce evidence sufficient to convince a reasonable
jury in the face of whatever contradictory evidence the defendant may provide.’ ” People v
Hardiman, 466 Mich 417, 423-424; 646 NW2d 158 (2002), quoting People v Konrad, 449 Mich
263, 273 n 6; 536 NW2d 517 (1995). As noted, viewing the evidence in the light most favorable
to the prosecution means disregarding all indications that someone other than defendant committed
the murders and the arson in question. Consequently, only the evidence connecting defendant to
the murders and the arson should properly be considered. In light of the evidence of defendant’s
motive, and his association with items used in the murders and arson, there was more than
sufficient evidence for a jury to find, beyond a reasonable doubt, that defendant was guilty of those
offenses.

Defendant additionally suggests that the conduct of the police was “peculiar,” citing their
investigation of a suspect who physically resembled defendant, and the initial failure, then
subsequent success, in finding the pink gun. Such protestations, however, relate to how the fact-
finder at trial could have determined to evaluate the evidence, but again fail to address the evidence
in the light most favorable to the prosecution, the standard by which we are required to evaluate
the evidence.

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 Defendant implies that witnesses picked him out of a live lineup as the result of
suggestiveness. But a challenge to identification procedures5 is different in kind from a challenge
to the sufficiency of the evidence, and defendant offered no such challenge below, and included
none in his statement of the questions presented on appeal.6 Thus, we decline to address this issue.7

V. FINGERPRINT EVIDENCE

Defendant argues that the trial court erred by allowing the prosecution to introduce the
fingerprint evidence linking defendant to the accelerant container discovered in the kitchen of the
house where the arson had taken place, on the ground that the prosecution did not timely disclose
such evidence, in violation of the discovery rules. We disagree.

“We review a trial court’s decision regarding the appropriate remedy for noncompliance
with a discovery order for an abuse of discretion.” See People v Davie (After Remand), 225 Mich
App 592, 597-598; 571 NW2d 229 (1997).

Whether a trial court abused its discretion regarding the appropriate remedy for a discovery
violation requires “a balancing of the interests of the courts, the public, and the parties” and an
“inquiry into all the relevant circumstances, including the causes and bona fides of tardy, or total,
noncompliance, and a showing by the objecting party of actual prejudice.” Davie (After Remand),
225 Mich App at 598 (citations and quotation marks omitted). “Further, the complaining party
must show that the violation caused him or her actual prejudice.” People v Greenfield, 271 Mich
App 442, 455-456 n 10; 722 NW2d 254 (2006).

When determining the appropriate remedy, a trial court must account for the fact that
barring the admission of evidence is “an extremely severe sanction limited to an egregious case.”
People v Burwick, 450 Mich 281, 294; 537 NW2d 813 (1995) (citation and quotation marks
omitted). While the trial court has ample discretionary power in fashioning a remedy for a
discovery violation, it should only order a continuance when one is specifically requested by the
aggrieved party, People v Elston, 462 Mich 751, 764; 614 NW2d 595 (2000), and a “remedy which
would put the objecting party in a better position than he would have enjoyed had disclosure been
timely made would seem of dubious value, particularly if it does violence to other legitimate
interests in the case,” Greenfield, 271 Mich App at 456 n 10 (citation and quotation marks omitted).

5
See, e.g., People v Gray, 457 Mich 107, 115; 577 NW2d 92 (1998); People v McCray, 245 Mich
App 631, 639; 630 NW2d 633 (2001); People v Barclay, 208 Mich App 670, 675; 528 NW2d 842
(1995).
6
An issue that is not raised within the statement of questions in the brief on appeal is not properly
presented for purposes of appellate review. People v Unger, 278 Mich App 210, 262; 749 NW2d
272 (2008). See also MCR 7.212(C)(5).
7
Furthermore, because defendant failed to make any argument that his conviction arose out of
improper identification procedures, this argument is abandoned. See Watson, 245 Mich App at
587 (holding that “[a]n appellant may not merely announce his position and leave it to this Court
to discover and rationalize the basis for his claims”).

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 The parties do not dispute that the nail polish remover container from which defendant’s
thumbprint was taken had been in police custody since December 2016; that the pertinent
discovery deadline was in October 2017; and that the prosecution showed no intent to use evidence
relating to that thumbprint until the trial was in progress. At the start of the eighth day of trial, the
prosecuting attorney informed the trial court as follows:

[L]ast week . . . we realized that we had evidence that had not been sent to the lab
and tested. It was a mix-up between the arson evidence and the homicide evidence.
We didn’t have a property receipt, so when we got the property receipt we realized,
actually, I think we saw the evidence before the property receipt, and we realized
we didn’t have anything done with it. So, we sent it up to the lab last Tuesday . . . .
It was a . . . fingernail polish remover bottle and an alcohol bottle that were found
at the scene collected by the arson expert.

We sent it to the lab . . . as soon as we realized it hadn’t gone to the lab, and
. . . they processed it that day for us. It came back with a fingerprint to the defendant
on the fingernail polish remover bottle. Wednesday morning first thing, we did
notify the Court as well as counsel that we had found that evidence, we had sent it
to the lab, and the results of that evidence, and we are moving to have that
admitted. . . .

Defense counsel objected, reminding the court that it had set a deadline for discovery and
complaining of being “blindsided.” Defendant then asked that the new fingerprint evidence be
excluded. Defense counsel further argued that the evidence in question was not properly deemed
newly discovered, given that it had been available to the prosecution since the beginning of the
investigation. In deciding to allow the prosecution to use the challenged evidence, the trial court
explained as follows:

[I]n this case, apparently, these fingernail polish bottles were unknown, frankly,
due to the prosecutor’s negligence, due to the police negligence. They should’ve
been better organized with how they put their files together, but I don’t see it as
ambush of the defendant because the People didn’t know about it either. It looks
to me like each side is on equal position. And because the prosecutor discovered it
last Tuesday I think, that has given everyone a week to prepare for this.

In this case, defendant protests that the late presentation of evidence that defendant’s
thumbprint was found on the nail polish remover bottle “was a devastating surprise to the defense
with little or no opportunity to rebut that late evidence,” and argues that what happened in this
instance constituted a violation of his constitutional rights to due process. Defendant, however,
does not explain how he might have rebutted the challenged fingerprint evidence if he had had
more time to do so. Indeed, although defense counsel vigorously opposed introduction of the
challenged evidence, counsel never accused the prosecution of deliberate delay or otherwise
attempting a tactical advantage. Moreover, at no point did counsel request a continuance in order
to develop some means of contesting the evidence. See People v. Jackson, 498 Mich. 246, 278–
80, 869 N.W.2d 253 (2015) (finding failure to comply with MRE 404(b)’s notice requirement
harmless, because “while the defendant suffered ‘unfair surprise’ from the unexpected introduction
of this testimony at trial, he was admittedly aware of [the witness’s] general version of events

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before trial,” and “he has not demonstrated how he would have approached trial or presented his
defense differently had he known in advance that [the witness] would be permitted to testify as she
did.”); Elston, 462 Mich at 764 (holding that trial courts should not assume that a party wants a
continuance unless that part explicitly asks for one). Additionally, defendant has not argued that
the prosecution obtained the fingerprint evidence through improper means, nor has he suggested
any prejudice to himself, other than the timing of when he was made aware of the fingerprint
evidence for potential use at trial. While the prosecution was, as the trial court noted, negligent in
its handling of the evidence at the time it was seized, the timing of the ultimate disclosure, a week
before trial, did not constitute an “egregious circumstance” requiring the exclusion of the
fingerprint evidence. The trial court did not abuse its discretion by admitting the evidence.

VI. JUROR QUESTION

Defendant argues that the trial court erred, when it posed a question submitted by a juror
to a witness, Ryan Miller (Miller), an acquaintance of Curler; the question asked whether Miller
believed that Benson killed Curler. We disagree.

At trial, Miller testified that, after the murders, he discussed with a police detective how
Curler had been the target of some derogatory statements that Benson posted on an Internet social
networking site. The trial court, relaying a juror’s question, asked Miller if he believed that Benson
had any involvement with Curler’s death, and Miller answered, “Absolutely not. Not after a year
of going through, no,” and added that Benson “didn’t get caught with a smoking gun.” The parties
agree that this question originated with a juror.

The parties additionally agree that defendant failed to object to the question at the trial
court level and, therefore, that the issue is unpreserved. MCR 2.513(I) authorizes a court to “permit
the jurors to ask questions of witnesses,” and directs a court electing to do so to “employ a
procedure that ensures that such questions are addressed to the witnesses by the court itself, that
inappropriate questions are not asked, and that the parties have an opportunity . . . to object to the
question.” “[T]he questioning of witnesses by jurors, and the method of submission of such
questions, rests in the sound discretion of the trial court.” People v Heard, 388 Mich 182, 188;
200 NW2d 73 (1972).8 Unpreserved issues, however, are reviewed for plain error. People v Cain,
498 Mich 108, 116; 869 NW2d 829 (2015).

To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden

8
Heard was decided by this Court before November 1, 1990, and, therefore, has no precedential
authority. See MCR 7.215(J)(1). We find Heard persuasive regarding the standard of review for
preserved challenges to jury questions at trial, particularly in light of MCR 2.513(I), which permits
but does not require a trial court to allow jury questions. Thus, MCR 2.513(I) clearly makes such
a decision discretionary.

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 of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence. [People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999) (quotation marks, citations, and brackets omitted).]

In the instant context, prejudice “requires a showing . . . that the error affected the outcome of the
lower court proceedings.” People v Chelmicki, 305 Mich App 58, 69; 850 NW2d 612 (2014)
(quotation marks and citation omitted). Finally, the trial court’s interpretation of statutes and court
rules is reviewed de novo. People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 (2004).

“[A] witness cannot express an opinion on the defendant’s guilt or innocence of the charged
offense.” People v Fomby, 300 Mich App 46, 53; 831 NW2d 887 (2013) (citation and quotation
marks omitted). However, Miller did not offer an express opinion about defendant’s guilt or
innocence, only Benson’s. While the question posed to Miller could be taken as asking indirectly
about his opinion regarding defendant’s guilt, to do so would require a chain of inferences: that
either defendant or Benson was guilty; that defendant ruled out Benson; and therefore it was left
as an inference, given that defendant was the only other possible perpetrator, that Miller thought
defendant guilty. We decline to read the question in such an attenuated fashion. Moreover, even
if we did interpret the question in the manner in which defendant suggests, we nevertheless would
find that the question was not outcome determinative, in light of the evidence of defendant’s
connection to the murder weapon and the substance used to carry out the arson.9

9
We note that as a general matter, a witness’s opinions are not admissible, MRE 701, and a witness
may only offer an opinion on an ultimate issue, such as a person’s guilt or innocence, if the
underlying opinion itself is admissible, MRE 704. Accordingly, while it is settled that “a witness
cannot express an opinion on the defendant’s guilt or innocence of the charged offense,” Fomby,
300 Mich App at 53 (citation and quotation marks omitted), it also is the case that a witness may
not express an opinion on the guilt or innocence of any other person, either. Thus, a question such
as that asked of Miller should not be posed and trial courts should not permit such testimony as
regards any person. However, because defendant does not argue on appeal that it was improper
for Miller to offer an opinion about any person other than defendant, we do not base our decision
on the impropriety of the question. See Tingley v. Kortz, 262 Mich App 583, 588, 688 NW2d 291
(2004) (“Ordinarily, we do not address issues not raised below or on appeal, or issues that were
not decided by the trial court.). Rather, if the question of whether it was improper for Miller to
express an opinion about Benson’s guilt or innocence had been properly presented, we would be
compelled to find, in accordance with our resolution of other arguments regarding Miller’s
testimony which defendant did raise, that any error in the admission of Miller’s opinion could not
have been outcome determinative, given the strength of the evidence against defendant. See MCL
769.26; MRE 103(d).

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 Defendant further argues that Miller’s reference to the lack of a “smoking gun” in
connection with Benson constituted an opinion that defendant was guilty, on the ground that
defendant was the only suspect linked to the firearm connected with the murders. We already have
noted the impropriety of seeking a witness’s opinion. Nevertheless, given defendant’s connection
to the murder weapon and the nail polish remover used to set the fire, any error in the admission
of the opinion necessarily was harmless. See MCL 769.26.

VII. JUDICIAL MISCONDUCT

Defendant argues, in his Standard 4 brief, that the trial judge’s conduct at trial was
improper. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

“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). Defendant failed to object to the trial judge’s conduct at trial. As such, the issue is
unpreserved. As discussed earlier, unpreserved issues are reviewed for plain error. See Cain, 498
Mich at 116.

B. ANALYSIS

A criminal defendant is entitled to “a neutral and detached magistrate.” People v Cheeks,
216 Mich App 470, 480; 549 NW2d 584 (1996) (quotation marks and citation omitted). The test
for determining whether a judge’s comments pierced the veil of judicial impartiality is whether,
“considering the totality of the circumstances, it is reasonably likely that the judge’s conduct
improperly influenced the jury by creating the appearance of advocacy or partiality against a
party.” People v Stevens, 498 Mich 162, 168; 869 NW2d 233 (2015).

1. REFERENCES TO “VICTIMS”

Defendant first cites authority for the proposition that a judge’s mention of a “victim” can
improperly suggest to the jury that the alleged crime actually took place.

Defendant points out that the trial court spoke of a victim in two instances, both from the
first day of trial. The first took place before jury selection, and before the prospective jurors
entered the courtroom. The court was expressing concern over the number of spectators present
in the gallery. The court then allowed one representative from each of the victims’ families to
remain in the gallery during trial.

This mention of “victims” is hardly problematic. Defendant, in his Standard 4 brief, does
not suggest that this usage indicated actual judicial bias, but rather argues that the court improperly
influenced the jury. Because no jurors were present at this mention of “three victims,” defendant’s
citation of this part of the record is unavailing.

Defendant also points out that the court used the word “victim” during jury selection. In
particular, the court asked a prospective juror, “you’re saying because of the seriousness of the
charge you believe someone was killed you’re going to decide right now that this man is guilty?”

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Then, after some equivocation from the prospective juror, the court asked, “But . . . I thought I
heard you say that if something is missing you’re still going to vote guilty because you feel bad
for the victims?” The prospective juror answered in the affirmative, and the court said “[t]hen I
should excuse you.”

In asserting generally that it is improper for a court to recognize the existence of a “victim”
until someone has been convicted of the offense that created the victim, defendant fails to
distinguish between instances in which it is obvious that a crime took place and the only question
is who committed the crime, as in this case, as opposed to a case where it is unknown whether a
crime was a committed at all. When the issue is whether a crime was committed at all, a court’s
reference to a “victim” could indeed imply that the court believes that a crime was committed, as
there can be no victim absent a crime, and the implication that the court believes that a crime was
in fact committed could be harmful to a defendant. No such negative implication arises in a case
such as this one, however, when a court makes reference to “victims,” as the fact that a crime was
committed is conceded and the existence of victims raises no implication that the defendant is
guilty.

In this case, the defense never disputed that the three decedents underlying the murder
charges were killed by homicide, and thus were crime victims, but instead attempted to implicate
others or otherwise cast doubts on defendant’s role in the matter. Defendant points to no instance
in which the trial court described those decedents as specifically defendant’s victims, as opposed
to merely the undisputed victims of homicides the perpetrator of which remained an open question.
For these reasons, the court’s single reference to “victims” in the presence of the jurors did not
intrude on the jury’s role in deciding what was at issue in this case, and therefore was not error.

2. IDENTIFICATIONS CONFIRMED FOR THE RECORD

As this Court has noted, the identity of the offender is an element in every offense. Yost,
278 Mich App at 356. In this case, several prosecution witnesses identified defendant in court,
which the trial court confirmed for the record. In none of these instances was the trial court making
its own pronouncements about who had committed an offense. Instead, the court was merely
confirming for the record identifications made by testifying witnesses which, to the extent that
they were accomplished by such visual means as gestures, or references to how persons appeared
or were positioned in court, were readily apparent to the jurors but would not otherwise have
appeared in the record. In each instance, the court merely confirmed, in minimal and neutral terms,
what took place, in response to the prosecuting attorney’s request that the record reflect that the
eyewitnesses specified defendant. The court neither told jurors anything that they could not see
for themselves, nor suggested that it was offering its own opinion regarding the credibility of the
witnesses. And there is no indication that the court’s tone or demeanor were improper.

Defendant does not actually assert that any of the prosecution witnesses who the court
confirmed had identified him in fact pointed to some other courtroom participant, or might
reasonably have been thought to have done so. But, had there been any question of whom a witness
had identified, defense counsel had every opportunity to pose objections or insist on clarification.

Defendant cites authority for the proposition that the identity of a criminal perpetrator
presents a question for the jury to decide, which is certainly correct, see, e.g., id. (noting that

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identity is an element of every offense), but none for the proposition that when a witness identifies
a person in court, the court is intruding on the jury’s factfinding mission if it states for the record
the name of the person thus specified. As if to acknowledge the lack of caselaw supporting his
argument, defendant exhorts, “No matter how common the practice is of [the] prosecutor’s
enlisting the judge to confirm an in-court identification, it should cease here and now.” We
disagree. By confirming for the record what occurs with nonverbal actions in a courtroom, such
as an in-court identification, not only does the court thus ensure that the transcript will reflect the
identification, it also offers the parties an opportunity to raise objections, or otherwise express
doubts, if there is any question concerning whom the witness identified.

In this case, as noted, the defense fully, if tacitly, acquiesced in the several instances when
the trial court confirmed for the record that a prosecution witness had identified defendant in court.
Thus, defendant has not established any error at all, let alone plain error, as to this issue.

3. PERTINENT JURY INSTRUCTIONS

To whatever extent the jury might have taken the trial court’s reference to a “victim,” or
its confirmations of witnesses’ courtroom identifications of defendant as indications that the court
believed defendant guilty, any such implication should have been dispelled by the court’s
instructions to the jury that defendant was presumed innocent; that the jury was to decide the facts
solely on the basis of the evidence; and for the jury to consider the court’s statements neither as
evidence nor as demonstrating an opinion regarding defendant’s guilt. “Jurors are presumed to
follow instructions, and instructions are presumed to cure most errors.” People v Petri, 279 Mich
App 407, 414; 760 NW2d 882 (2008). Thus, any potential judicial misconduct was cured by the
jury instructions.

VIII. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues, in his Standard 4 brief, that his trial counsel was ineffective for failing
to properly interview witnesses before trial. We disagree.

A. STANDARD OF REVIEW

Defendant did not move for Ginther10 hearing below to determine whether his trial counsel
was ineffective. Regardless of whether a claim of ineffective assistance is properly preserved, if
the trial court did not hold a Ginther hearing, “our review is limited to the facts on the record.”
People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000). “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.

10
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). No Ginther hearing was held in this
case.

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 B. ANALYSIS

A “defendant has the burden of establishing the factual predicate for his claim of ineffective
assistance of counsel.” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Effective assistance of counsel is presumed, and the defendant bears a heavy
burden of proving otherwise. To establish an ineffective assistance of counsel
claim, a defendant must show that (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms and (2)
there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. [People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012) (citations omitted).]

The “reasonable probability” standard can be satisfied by less than a preponderance of the
evidence. People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012).

Defendant argues, in only general terms, that defense counsel was ineffective for having
failed to interview any prosecution witnesses. But defendant fails to specify any witnesses the
cross-examination of whom was not effective, or how any instance of cross-examination might
have been more effective had defense counsel taken a different approach to trial preparation.
Defendant does, however, cite, and append to his Standard 4 brief as Exhibit A, a reproduction of
an e-mail from trial counsel to appellate counsel stating that the former did indeed decline to
interview prosecution witnesses.

The prosecution, in turn, points out that the e-mail on which defendant relies, while
confirming that defense counsel decided against interviewing prosecution witnesses, nonetheless
also provides a sound explanation for taking that approach:

Yes, it is true that the Court did NOT appoint a private investigator to assist
me in investigating the case. And no, I did not personally interview any of the
prosecution’s witnesses. Instead I crafted my cross examination of each witness
based on information that my client personally gave me regarding each witness as
well as their recorded and transcribed prior testimony at the Preliminary Exam and
their recorded and transcribed statements given to police during their investigative
process prior to the Exam.

Defense counsel’s explanation, which apparently satisfied appellate counsel enough to not
raise an ineffective assistance of counsel claim on appeal, illustrates the principle that “the failure
to interview witnesses does not itself establish inadequate preparation.” People v Caballero, 184
Mich App 636, 642; 459 NW2d 80 (1990). Because defendant’s own exhibit establishes that
defense counsel pursued sound alternatives to conducting interviews in order to obtain information
useful for cross-examination, and because defendant fails to identify where or how any of
counsel’s cross-examinations might have been better, defendant has failed to show that he was
denied the effective assistance of counsel.

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 IX. FELON IN POSSESSION

Defendant argues, in his Standard 4 brief, that there was insufficient evidence to convict
him of being a felon in possession of a firearm. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

To the extent that defendant here challenges the validity of a stipulation regarding one of
the elements of felon in possession, there was no attendant objection below, leaving the issue
unpreserved. See Metamora Water Serv, Inc, 276 Mich App at 382. As discussed earlier,
unpreserved issues are reviewed for plain error. See Cain, 498 Mich at 116.

As discussed earlier, when reviewing the sufficiency of evidence in a criminal case, a
reviewing court must view the evidence of record in the light most favorable to the prosecution to
determine whether a rational trier of fact could find that each element of the crime was proved
beyond a reasonable doubt. Herndon, 246 Mich App at 415.

B. ANALYSIS

MCL 750.224f states that “a person convicted of a felony shall not possess, use, transport,
sell, purchase, carry, ship, receive, or distribute a firearm in this state,” and also sets forth the
conditions for restoration of such rights.

In this case, the existence of a stipulation regarding one of the elements of that offense was
first brought to the jury’s attention as follows:

[The Prosecuting Attorney]: Your Honor, I believe we do have a stipulated
agreement that the defendant has a prior felony and should not have possessed a
firearm.

The Court: A stipulated agreement means that the lawyers are not going to
have to bring in witnesses to try to prove something, they’ve just agreed that he had
a previous felony conviction. . .

The court’s final instructions to the jury included the following:
Now there’s a word called stipulation that we use in the courtroom, and
when the lawyers agree on a statement or fact these are called stipulated facts. And
they did stipulate to certain facts in this case. They looked at you and they said we
agree to this. You may regard such stipulated facts as true. But you’re not required
to do so.

After the latter instruction was given, defense counsel expressed general satisfaction with the
instructions as provided to that point.

Stipulations of this sort are routine practice, to which the defense typically agrees in order
to avoid having to bring to the jury’s attention the specifics of the defendant’s earlier felony
conviction. In this case, had defense counsel had any qualms about the stipulation that the

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prosecuting attorney put forward and that the trial court described and explained, defense counsel
had every opportunity to pose objections or insist on clarification. That counsel instead remained
silent demonstrates that counsel preferred to give defendant the benefit of drawing minimal
attention to his earlier felony. There is no indication that this course was anything but a reasonable
strategic decision.

Defendant alternatively argues that the prosecution failed to present evidence that he had
failed to satisfy the statutory conditions for the restoration of his right to possess a firearm. But
that provision is an affirmative defense, placing on the person seeking restoration of that right, not
the prosecution, the initial burden of producing clear and convincing evidence that he or she has
successfully completed all terms of incarceration, conditions of probation or parole, and paid all
fines, that resulted from the violation resulting in the prohibition. MCL 28.424(4)(b)(iii); MCL
776.20. Accordingly, when charged with being a felon in possession, “the defendant has the
burden of producing evidence to establish that his or her right to possess a firearm has been
restored,” and only “[o]nce the defendant meets this burden of production” does “the prosecution
bear[] the burden of persuasion beyond a reasonable doubt” on that element. People v Perkins,
473 Mich 626, 628-629; 703 NW2d 448 (2005). In this case, defendant does not suggest that he
offered evidence to show that he had restored his gun rights, and we have found no such evidence
in the record. Because the defense did not place the matter in issue, “the prosecution was not
required to prove the lack of restoration of firearm rights beyond a reasonable doubt.” Id. at 640.

X. JUDGMENT OF SENTENCE

Defendant argues, in his Standard 4 brief, that he was prejudiced by errors in his judgment
of sentence. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

Defendant did not argue at the trial court level that the judgment of sentence failed to
adequately specify the nonparolable nature of defendant’s life sentences, or the consecutive nature
of his felony-firearm sentences. Thus, the issue is unpreserved. See Metamora Water Serv, Inc,
276 Mich App at 382. As discussed earlier, unpreserved issues are reviewed for plain error. See
Cain, 498 Mich at 116.

B. ANALYSIS

Defendant would have this Court believe that he is concerned that he might be mistakenly
considered for parole in connection with his life sentences for first-degree murder, or that he might
be relieved of the (fictional, in light of the life sentences) burden of having to serve his sentences
for felony-firearm and those for their underlying felonies consecutively. Because either actual
error would work to defendant’s advantage, he cannot satisfy the prejudice requirement for relief
under the plain-error rule. We decline to address this issue further.

XI. RESTITUTION

Defendant argues, in his Standard 4 brief, that the trial court erred by failing to address the
issue of restitution in his judgment of sentence. The trial court did not plainly err by doing so.

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 A. PRESERVATION AND STANDARD OF REVIEW

Defendant did not argue at the trial court level that the judgment of sentence failed to
adequately specify the nonparolable nature of defendant’s life sentences, or the consecutive nature
of his felony-firearm sentences. Thus, the issue is unpreserved. See Metamora Water Serv, Inc,
276 Mich App at 382. As discussed earlier, unpreserved issues are reviewed for plain error. See
Cain, 498 Mich at 116.

B. ANALYSIS

Not only are defendant’s contentions regarding restitution misguided, any such error would
be to defendant’s favor. Because neither the prosecution nor any survivors of the victims asked
the trial court to include restitution as part of the sentencing, the court’s silence on the question
was not plain error. Furthermore, defendant was not prejudiced by the trial court’s decision to not
order him to pay any restitution. As such, defendant cannot show that the lack of a restitution
order affected his substantial rights or threw the integrity of the proceedings into doubt. See
Carines, 460 Mich at 763. We decline to address this issue further.

XII. EVIDENTIARY HEARING

Defendant argues, in his Standard 4 brief, that he is entitled to a Ginther hearing to
determine whether his trial counsel was ineffective. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

As discussed earlier, defendant did not move for a Ginther hearing at the trial court level.
Although in his Standard 4 brief defendant asks this Court for a remand for a Ginther hearing, he
did not file a proper motion in this Court for that purpose under MCR 7.211(C)(1) (permitting a
motion to remand where the factual record is insufficient for appellate consideration). See People
v Bass, 317 Mich App 241, 276 n 12; 893 NW2d 140 (2016) (“As a threshold consideration, to the
extent that defendant now requests that this Court remand this matter for a Ginther hearing to
permit him to substantiate his claims of ineffective assistance, his request for such relief is
improperly made; it appears in the text of his Standard 4 brief, not in a proper motion to remand
under MCR 7.211(C)(1).”). Thus, the issue is unpreserved. As discussed earlier, unpreserved
issues are reviewed for plain error. See Cain, 498 Mich at 116.

B. ANALYSIS

“[W]here . . . a cognizable claim is raised that counsel did not investigate potentially
meritorious defenses to the charges, and . . . a substantial possibility appears on the record that
potential defenses suggested by defendant were not considered, . . . a full evidentiary hearing on
the ineffective assistance of counsel allegation must be conducted.” People v Kimble, 109 Mich
App 659, 663; 311 NW2d 446 (1981). See also People v Dawkins, 450 Mich 954; 549 NW2d 560
(1995) (summarily ordering the Court of Appeals to retain jurisdiction and remand the case to the
trial court for a Ginther hearing).

As discussed earlier in Part VIII, defendant’s offer of proof concerning defense counsel’s
not having interviewed any prosecution witnesses included an email which neatly summarized
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reasons supporting counsel’s explanation why such action was unnecessary. Accordingly, an
evidentiary hearing to elicit the same explanation from defense counsel would not assist this Court
in deciding the claim of ineffective assistance. Additionally, as discussed earlier, defendant does
not specify which witnesses might have been more effectively cross-examined, or precisely how
defense counsel might better have managed such a thing, and so offers no factual predicates that
might warrant factual inquiry and determination. For these reasons, defendant fails to show that
he is entitled to an evidentiary hearing.

XIII. CONCLUSION

For the reasons stated in this opinion, defendant’s convictions are affirmed.

/s/ Jonathan Tukel
/s/ David H. Sawyer
/s/ Michael J. Riordan

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