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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 26, 2022
Plaintiff-Appellee,
v No. 354026
Crawford Circuit Court
MATTHEW FRANKLIN SMITH, LC No. 19-004414-FC
Defendant-Appellant.
Before: GADOLA, P.J., and SERVITTO and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of first-degree murder, MCL
750.316(1), under theories of both premeditation and felony-murder; torture, MCL 750.85; and
unlawful imprisonment, MCL 750.349b. The trial court sentenced defendant, a second-offense
habitual offender, MCL 769.10, to life in prison without the possibility of parole for the murder
conviction, 45 to 80 years’ imprisonment for the torture conviction, and 142 months’ to 22½ years’
imprisonment for the unlawful imprisonment conviction. We affirm.
I. BACKGROUND FACTS
Defendant’s convictions arose from the mistreatment and death of Dennis Everson in the
small northern Michigan community of Frederic in July 2018. The prosecutor presented evidence
that defendant, along with a younger man named Dylan Ziegler, came to Frederic from
southeastern Michigan some days before July 2, 2018, in order to do “scrapping”—collecting scrap
metal for payment—with Everson. Evidence supported that a physical altercation—involving
defendant and Ziegler against Everson—developed on July 2, 2018, and that Everson died that day
from severe trauma to his skull. Ziegler testified at trial against defendant. He admitted engaging
in the altercation but implied that defendant had done the ultimate killing. Specifically, he testified
that defendant put Everson into a small, detached camper on rural property and tried to set it on
fire; drove a short ways from the camper (with both defendant and Ziegler in defendant’s truck);
and then took an object out of the back of the truck, disappeared for some time in the direction of
the camper, came back to the truck (where Ziegler was waiting), and said that the two needed to
head back to southeastern Michigan immediately. A theory set forth at trial was that Everson and
-1-
defendant had animosity toward each other because a marijuana-growing operation that the two
had engaged in throughout 2017 had not run smoothly.
Defendant was placed in the same jail unit with a man named Anthony Bentley. The two
shared a common area with a third man, Richard Paine. On three separate occasions, Bentley
asked to speak with police; the parties refer to these conversations as “interviews.” Bentley
provided information about defendant to the police. In a pretrial motion to suppress, defendant
argued that any information Bentley obtained from defendant after the first interview needed to be
suppressed because, by that point, Bentley was acting as an implied agent of the state, and any
questioning of defendant by Bentley was in violation of defendant’s Sixth Amendment right to
counsel. See, generally, Massiah v United States, 377 US 201, 206; 84 S Ct 1199; 12 L Ed 2d 246
(1964). The lower court ruled that Bentley did not become an agent of the state until immediately
after the second interview, when he signed a plea agreement to provide testimony against
defendant in exchange for a benefit in his own case. Accordingly, the court ruled that any
information obtained before the second interview was admissible but that any information obtained
after that was inadmissible. The parties do not dispute on appeal that a constitutional error
occurred when Bentley testified at trial that defendant told him that the murder weapon was a
hammer.1 However, defendant did not object at trial to the testimony. After defendant filed a
motion for a new trial on the basis of Bentley’s testimony about the hammer, the lower court
concluded that the error was not preserved for its review, was merely an evidentiary error, and was
harmless under a mere “outcome-determinative” standard, but it added that even if it were to
review the error under a harmless-beyond-a-reasonable-doubt standard, it would nonetheless find
no basis for a new trial. This appeal followed.
II. BENTLEY
A. HARMLESS BEYOND A REASONABLE DOUBT
On appeal, defendant contends that the error regarding the “hammer’” testimony was
preserved for review by the circuit court by virtue of the pretrial motion to suppress; that the
standard for preserved, constitutional errors applied; and that the error was not harmless beyond a
reasonable doubt. Defendant thus contends he is entitled to a new trial. The prosecutor, on the
other hand, contends that the issue of the “hammer” testimony was not preserved at trial and that
the court, therefore, properly applied a mere “outcome-determinative” test in evaluating the motion
for a new trial.2 The prosecutor also contends that the error was harmless even if the stricter
standard for a preserved, constitutional error is applied. We agree with the prosecutor.
1
It is not disputed that the information about the hammer was first disclosed by Bentley at the
third interview. It is at least possible that Bentley obtained the information before the second
interview but only disclosed it at the third, but nobody is arguing this angle on appeal.
2
The prosecutor does not contest the constitutional nature of the alleged error and in fact concedes
it.
-2-
MCR 6.431(B) states, in part, “On the defendant’s motion, the court may order a new trial
on any ground that would support appellate reversal of the conviction or because it believes that
the verdict has resulted in a miscarriage of justice.” (Emphasis added.) MCL 769.26 states:
No judgment or verdict shall be set aside or reversed or a new trial be
granted by any court of this state in any criminal case, on the ground of misdirection
of the jury, or the improper admission or rejection of evidence, or for error as to
any matter of pleading or procedure, unless in the opinion of the court, after an
examination of the entire cause, it shall affirmatively appear that the error
complained of has resulted in a miscarriage of justice. [Emphasis added.]
An appellate court “reviews a trial court’s decision to grant or deny a motion for a new trial
for an abuse of discretion.” People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018). “An
abuse of discretion occurs when a trial court’s decision falls outside the range of reasonable and
principled outcomes.” Id. (quotation marks and citations omitted). An appellate court may not
“tacitly endorse obvious errors under the guise of deference.” Id. at 565 (quotation marks and
citations omitted).
Whether defendant’s filing of the pretrial motion to suppress was sufficient to preserve, for
the circuit court, the issue of the admission of the “hammer” testimony—despite the lack of any
objection at trial—is an issue of law. Issues of law are reviewed de novo on appeal. People v
Aspy, 292 Mich App 36, 40; 808 NW2d 569 (2011).
Preserved and nonstructural3 constitutional errors are reviewed to determine if they are
harmless beyond a reasonable doubt. People v Anderson, 446 Mich 392, 405-406; 521 NW2d 538
(1994). The Michigan Supreme Court has stated that the pertinent question in such a review is
whether it is clear beyond a reasonable doubt that a rational jury would have convicted the
defendant even without the contested evidence. People v Shepherd, 472 Mich 343, 347; 697
NW2d 144 (2005).
If an issue is unpreserved, this Court reviews the issue for plain error affecting substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Under the plain-error
doctrine, reversal is warranted if a “clear or obvious” error occurred that “affected the outcome of
the lower court proceedings.” Id. And even if this standard is satisfied,
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. [Id. at 763-764 (citation, quotation marks, and brackets omitted).]
With regard to the motion for a new trial, it is clear that the trial court erred in stating that
a nonconstitutional error was at issue; the entire question regarding Bentley’s testimony involved
defendant’s Sixth Amendment right to counsel, and the prosecutor does not deny this. The
3
No argument is being made in this case that a structural error occurred.
-3-
question is which harmless-error standard should apply. We need not resolve that issue, however,
because we find that the trial court did not err by concluding that even if the standard for preserved,
constitutional error was to be applied, a new trial would not be warranted. In fact, we find that
even if the admission of Bentley’s entire testimony4 was erroneous, the admission was harmless
beyond a reasonable doubt.5
First and foremost, it is of import that the jurors knew, through testimony other than that
of Bentley, that a hammer had been processed for evidence (even if the processing did not yield
useful information). In other words, the jurors were made aware that a hammer was being viewed
as a potential murder weapon. This lessened any impact of Bentley’s “hammer” testimony.
Next, Bentley’s testimony was unquestionably riddled with credibility problems; the police
could not verify many of the things he said. Also, Paine testified that Bentley had read some of
defendant’s “court materials” while in jail, with the implication being that Bentley could have
obtained information from police reports. The trial court accordingly advised the jurors to evaluate
an accomplice’s and an informant’s testimony carefully and consider whether it was corroborated.
Most importantly, it is apparent from the record that Ziegler’s testimony was corroborated to a
much greater extent than Bentley’s such that other evidence of defendant’s guilt was extremely
strong and a rational jury would have convicted the defendant even without the contested evidence.
Shepherd, 472 Mich at 347.
Ziegler testified that defendant beat Everson severely when the three men were at
Everson’s property and that this shocked Ziegler. Ziegler testified that he punched Everson in the
face once, that he and defendant forced Everson into the back of defendant’s pickup truck, and that
defendant drove the truck to a property owned by one of Everson’s relatives. He testified that
defendant dragged Everson into the small, dilapidated camper on the property and tried to set the
camper on fire, and he noted that Everson was wearing only one shoe. Everson was wearing only
one shoe when his body was found by the camper, and a part of a burned paper bag was found in
the camper.
4
Some of the “other” testimony included Bentley’s claim that defendant told him that he and
Ziegler committed the murder right after having taken a “selfie” photograph, which defendant
showed Bentley.
5
With respect to whether the issue of the “hammer” statement was preserved, it is true that
defendant filed a pretrial motion to suppress much of Bentley’s testimony. But the trial court
granted this motion with regard to any information Bentley obtained after the second interview.
What defendant needed to object to was the prosecutor’s, or Bentley’s, violation of this order.
Defendant did not do so. Accordingly, a plain-error standard would apply, rendering the harmless-
error conclusion stronger. In addition, defendant, with respect to the trial court’s decision
regarding the motion for a new trial, argues only about the “hammer” testimony. In other words,
Bentley’s testimony that defendant showed him a photograph of defendant and Ziegler from “the
day of the murder” and told Bentley, “We did it right after this picture,” would still be in evidence,
lending support for the jury’s verdict of guilt.
-4-
Ziegler also testified that when Everson was placed in the camper, he had blood coming
from his nose and his face was swollen, but there were no other signs of obvious injury. He
testified that he heard Everson making noise from inside the camper, and that he and defendant
thereafter drove a short distance away from the camper. According to Ziegler, defendant then
exited the vehicle and grabbed something out of the back of the truck before going into the woods
by the camper. The medical examiner testified that Everson had a tremendous amount of injuries,
with broken facials bones, broken ribs, and leg contusions in addition to extreme trauma to the
skull. He testified that Everson’s cause of death was “blunt force trauma [to the] head.”
Ziegler testified that the incident occurred on July 2, 2018. The medical examiner stated
that the date of July 2, 2018, was within the estimated range of the time of death. Everson’s mother
also testified that she had last seen Everson on July 2; that she telephoned Everson on July 3, but
he did not answer; and that she never heard from him again. Detective Sergeant Ryan Swope with
the Crawford County Sheriff’s Office testified that the last outgoing call on Everson’s telephone
was made on July 2. And, one of the victim’s sons, Edward, testified that Everson did not call him
on July 5, Edward’s birthday, as he usually did. Edward could not reach him and went to Everson’s
home on July 6, only to find that he was not there. Edward saw moldy food and said that “the dog
that was there tore up the couch and had gone to the bathroom all over the house because nobody
was there to let him out.” Edward also noted that Everson’s telephone was “outside on the porch
and part[s] of his glasses were outside” and scattered and that one shoe and Everson’s hearing aid
were on the ground.6
Ziegler further testified that defendant told him that he had broken one of his own (i.e.,
defendant’s) toes during the fight and later showed the toe to Ziegler. Ziegler’s sister testified that
on July 4, 2018, defendant said that he had a broken toe and had been complaining about how
badly it hurt. She testified that she asked what had happened to it, and defendant replied, “[O]h I
kicked some old man up the . . . -ss.”7 She stated that defendant had told her that defendant and
Ziegler were planning to stay up north a couple of months, and she did not know why they came
back so early. She testified that she asked defendant about it and that he replied that “things just
didn’t go too well.” An acquaintance of defendant’s also testified that defendant told him that he
and Ziegler got in a “fight” up north but, significantly, made sure to mention that the “person was
alive when they left.”
Ziegler also testified that, the day after the murder, defendant washed his truck, which was
unusual. The police verified the carwash activity by way of a photograph. Ziegler testified that
defendant bought new tires shortly after the murder and told Ziegler that he was doing it so that
the “tire tracks” “couldn’t be tracked.” Detective Trooper Joseph Dowdell with the Michigan State
Police testified that he visited the tire shop to obtain the receipt for the tires and learned that the
6
Edward further stated that he had seen defendant get physical with Everson in the past. He
alleged that he had heard “threatening things” from defendant toward Everson, involving a
marijuana-growing arrangement.
7
Everson was significantly older than defendant.
-5-
name defendant had given at the shop was “Mark Smith.” Also, defendant had paid the tire shop
to “scrap” the old tires.
Ziegler testified that when he told defendant that police were outside the house where
Ziegler and defendant were located in southeastern Michigan, defendant left and headed toward
Ohio. Detective Trooper Dowdell pulled defendant over when defendant was on his way to Ohio;
the officer asked defendant what had happened up north, and defendant said that he had not been
up north. The police verified by video and other means that defendant and Ziegler had, in fact,
been up north on July 2, 2018.
In addition to Ziegler’s corroborated testimony, there was strong scientific support that a
stain on the hook of an orange tie-down taken from the camper contained the DNA
(deoxyribonucleic acid) of Everson and defendant.8 There was also strong scientific support that
Everson’s DNA was in stains found on one of the camper’s walls and on the interior of the
camper’s door.
Finally, Detective Sergeant Swope interviewed defendant, and defendant acknowledged
that there were only three people who knew how Everson died—Ziegler, Everson, and defendant.
Defendant also, at that time, said, “I didn’t do it.” The implication was that Ziegler “did it.” A
person who knew both defendant and Ziegler, however, testified that defendant seemed to be
“more in control” in the relationship. Another person who knew both defendant and Ziegler
testified that defendant was always the one in control in the relationship, that Ziegler “always
looked to [defendant],” and that defendant would “always tell [Ziegler] what to do.” This person
also testified that defendant told him that there had been a “fight” up north. A third witness
testified that in the relationship between defendant and Ziegler, Ziegler “did what [defendant]
said.”
Based on the record, it is clear beyond a reasonable doubt that a rational jury would have
convicted defendant even without any of Bentley’s testimony or the prosecutor’s comment in
closing arguments (addressed below). Shepherd, 472 Mich at 347. Notably, the jurors were given
an aiding-and-abetting instruction. The upshot is that even if the jurors believed that Ziegler dealt
the fatal blow, there was a large quantity of evidence that defendant was, at the very least, an aider
and abettor. Defendant was thus not entitled to a new trial.
8
When asked about whether a strap had been used to tie Everson, Ziegler said only that he could
not recall. He did not, contrary to defense counsel’s implication at trial, state with definitiveness
that a strap was not used. Also, he claimed that defendant and Everson were out of his view for a
time after defendant had moved the truck and headed back toward the camper. And he testified
that defendant “put [Everson] in the camper.” At one point he seemed to be saying that he had
never seen defendant step inside the camper, but the prosecutor, in questioning him at that point,
was speaking about before the criminal incident. Shortly afterward, Ziegler reiterated that he saw
defendant put Everson in the camper.
-6-
B. UNPRESERVED ARGUMENT THAT SUPPRESSION OF ALL BENTLEY’S
TESTIMONY WAS REQUIRED ON THE BASIS OF THE STATE’S HAVING KNOWN
THAT BENTLEY WAS A “REGULAR SNITCH”
Defendant argues in his supplemental brief that the information relayed by Bentley at all
three interviews needed to be suppressed because the state knew from the very start that Bentley
had been a “snitch” for other cases and that the mere fact of the state’s having placed defendant in
the same jail unit with a known snitch was a sufficient basis for a conclusion of agency. Defendant
contends that the state clearly intended to use Bentley as an agent by placing the two together from
the very start. The problem with defendant’s argument is that defense counsel affirmatively
conceded at the suppression hearing that the defense was not arguing that defendant and Bentley
were “originally” placed together “to gain information.” Counsel argued that Bentley only became
an agent after the first interview. This constituted a waiver of the argument defendant is now
making. See People v Hershey, 303 Mich App 330, 350; 844 NW2d 127 (2013).
Moreover, defendant, in making his argument about Bentley’s “known” status as an
informant, is primarily relying on United States v Henry (After Remand), 447 US 264; 100 S Ct
2183; 65 L Ed 2d 115 (1980). But in that case, the informant was acting as a government agent
by way of a paid, prearranged agreement. See id. at 270-271, 273.9 At any rate, defendant appears
to be conceding that his “known informant” issue was not raised below. Indeed, he argues that
defense counsel was ineffective for failing to raise it. Given the evidence of defendant’s guilt as
provided by witnesses other than Bentley, no outcome-determinative error is apparent under the
standard from Carines, 460 Mich at 763.
Defendant additionally argues that counsel improperly failed to object to the entirety of
Bentley’s testimony on the basis of Bentley’s previous “snitching” actions and that counsel should
have raised this issue in the motion for a new trial. However, to obtain relief on the basis of
ineffective assistance of counsel, a party “must show that counsel’s performance fell short of [an]
. . . objective standard of reasonableness and that, but for counsel’s deficient performance, there is
a reasonable probability that the outcome of the . . . trial would have been different.” People v
Ackley, 497 Mich 381, 389; 870 NW2d 858 (2015) (quotation marks, citation, and brackets
omitted). “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. (quotation marks and citation omitted). Given all the evidence as set forth above
in discussing the issue of a preserved, constitutional error, defendant has not demonstrated a
reasonable probability that the outcome of the trial would have been different even if counsel had
raised the argument below and had been successful with it.
9
Defendant also states that the present case is “exactly” comparable to Ayers v Hudson, 623 F3d
301 (CA 6, 2010). Ayers does bear a lot of similarity to the present case, but in Ayers, id. at 316,
the court, in analyzing the relationship between the police and an informant, relied in significant
part on the fact that the police had shared details of the defendant’s case with the informant before
the informant obtained crucial information from the defendant, and defendant points to no such
sharing here. In addition, Ayers does not really speak to defendant’s “known snitch” issue.
-7-
C. UNPRESERVED ARGUMENT THAT PROSECUTORIAL ERROR OCCURRED
Defendant makes an additional unpreserved argument that the prosecutor committed error
by eliciting the “hammer” testimony and by mentioning it in closing arguments. In general, this
Court reviews claims of prosecutorial error to determine whether “the prosecutor committed errors
during the course of trial that deprived [the] defendant of a fair and impartial trial.” People v
Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015). However, unpreserved issues of
prosecutorial error are reviewed under the plain-error doctrine from Carines, 460 Mich at 763-
764. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001).
Although prosecutorial error cannot be based on a good-faith attempt to introduce
evidence, see People v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007), it could be argued
that the prosecutor should have been more diligent in assessing what questions to ask of Bentley,
in order to comply with the trial court’s pretrial ruling, of which she was obviously aware.
However, given all the evidence of guilt even disregarding the “hammer” testimony, no outcome-
determinative error occurred. Carines, 460 Mich at 763. In raising the issue of prosecutorial error,
defendant is focusing only on the testimony about the hammer and not on Bentley’s testimony
regarding defendant’s having allegedly told Bentley that he and Ziegler had killed Everson right
after the taking of a “selfie” photograph. Accordingly, the evidence of defendant’s guilt was even
stronger in this context than set forth above in the analysis pertaining to Bentley’s testimony as a
whole, because the “photograph” testimony is additional evidence of guilt. Finally, the very brief
comment about the hammer made by the prosecutor in closing10 was also not outcome-
determinative in light of all the evidence of guilt aside from the testimony about the hammer.
III. INEFFECTIVE ASSISTANCE ON THE BASIS OF A FAILURE TO CALL WITNESSES
Defendant contends that his trial counsel rendered ineffective assistance of counsel by
failing to present testimony from two witnesses who allegedly saw Everson alive after June 2,
2018. We disagree.
As previously stated, to obtain relief on the basis of ineffective assistance of counsel, a
party “must show that counsel’s performance fell short of [an] . . . objective standard of
reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability
that the outcome of the . . . trial would have been different.” Ackley, 497 Mich 389 (quotation
marks, citation, and brackets omitted; emphasis added).
At trial, three witnesses testified that they might have seen Everson after July 2, 2018, but
all three were unsure about this. Defendant contends that an additional two witnesses would have
provided better and more credible support for the argument that Everson did not die on July 2,
2018, as alleged by Ziegler. Defendant has pointed to no evidence, however, that these two
witnesses saw Everson after July 2 or that they would have testified as such at trial. A defendant
10
The prosecutor said in closing that defendant told Bentley that “you have no idea how hard it is
to kill someone with a hammer.”
-8-
“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).
A convicted person who attacks the adequacy of the representation he
received at his trial must prove his claim. To the extent his claim depends on facts
not of record, it is incumbent on him to make a testimonial record at the trial court
level in connection with a motion for a new trial which evidentially supports his
claim and which excludes hypotheses consistent with the view that his trial lawyer
represented him adequately. [Id. (quotation marks and citation omitted).]
Defendant has not proven any claim regarding these witnesses and has presented no evidence in
support of his related claim that Everson would be depicted on video footage from July 4, 2018.
He has established no entitlement to reversal.
Defendant also argues that he is entitled to a remand to develop this issue further. MCR
7.211(C)(1)(a) states that a motion to remand “must be supported by affidavit or offer of proof
regarding the facts to be established at a hearing.” Even if defendant’s supplemental brief is
regarded as a “motion” for a remand, defendant has submitted no affidavits and no offers of proof
aside from very brief and generalized statements in his supplemental brief that two witnesses had
“seen” Everson. And the generalized statements are from defendant, not from the alleged
witnesses.11 A remand is not warranted.
Affirmed.
/s/ Michael F. Gadola
/s/ Deborah A. Servitto
/s/ James Robert Redford
11
Given all the evidence presented, it is difficult to conclude that a reasonable juror would have
found credible any assertion by a witness that he or she had seen Everson after July 2.
-9-