Opinion
357633
06-02-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TAYLOR STORM BREINING, Defendant-Appellant.
UNPUBLISHED
Jackson Circuit Court LC No. 20-003035-FC
Before: Letica, P.J., and Markey and O'Brien, JJ.
PER CURIAM
Defendant has been charged with assault with the intent to murder, MCL 750.83, armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, as a second-felony offender, MCL 769.10. In this interlocutory appeal, defendant appeals by leave granted the trial court's order denying defendant's motion to sever the charges into two separate trials. We affirm.
This Court initially denied leave to appeal. People v Breining, unpublished order of the Court of Appeals, entered July 26, 2021 (Docket No. 357633). Thereafter, our Supreme Court remanded the matter for consideration as on leave granted. People v Breining, 967 N.W.2d 630 (Mich, 2022).
I agree that defendant's unpreserved constitutional challenges do not warrant relief. I also agree that defendant's admission that he possessed a firearm shortly after the Whiting armed robbery is admissible. See People v Hall, 433 Mich. 573, 583-584; 447 N.W.2d 580 (1989).
I. FACTS
Defendant's charges arise from events on Sunday, September 6, 2020, when defendant and codefendant, Samuel Boyer, allegedly engaged in what the prosecutor and the trial court have characterized as a "crime spree" in Jackson County. At the joint preliminary hearing for defendant and Boyer, evidence was presented related to three specific incidents.
The first incident involved an alleged armed robbery at a camper where Jonathan Whiting lived. Whiting personally knew both defendant and Boyer, having met them in jail. According to Whiting, in the early morning hours of September 6th, defendant, Boyer, and three women came to his camper located at his parents' property and woke him up. Defendant and Boyer initially had their faces covered with bandanas. When Whiting opened the door, defendant was holding a black handgun, which he pointed at Whiting's face. Boyer also had a gun, which Whiting described as "like an assault gun" or a long rifle. Whiting later saw Boyer had a handgun as well. One of the women, whom Whiting identified as Boyer's girlfriend, was carrying what "looked like a sawed[-]off shotgun."
There is no indication in the record that this woman has been charged.
An attempted armed robbery is included in the definition of armed robbery. MCL 750.529 and MCL 750.530; see also People v Williams, 491 Mich. 164, 172; 814 N.W.2d 270 (2012)
The two other women were unarmed. They were April Rudd and Christina Green (or McConnell). Whiting formerly dated Green, but she had moved out two weeks prior, after living with Whiting for a month. Green kept asking if her property was there. In particular, Whiting recalled that Green wanted some clothing. Whiting maintained that he had left Green's "stuff" at Rudd's garage. Rudd knew Green's items were in Rudd's garage because Rudd had texted Whiting about putting them there. That text was on Whiting's iPhone, which Green took. Whiting also recalled something being said about fishing tackle that Whiting had not paid for and belonged to Boyer, a third-party, or someone else.
There is no indication in the record that either woman has been charged.
The trial court appeared to be referencing People v Lawrence, unpublished per curiam opinion of the Court of Appeals, issued February 13, 2018 (Docket No. 339228). There, the prosecution appealed the trial court's order granting the defendant's motion to admit other-acts evidence at his trial on two counts of second-degree murder and one count of felony-firearm. Early in the morning, the defendant had seen two men on his property in a rural area. One was checking the handle on the defendant's detached garage; the other, the handle on the defendant's truck. The defendant retrieved his .22-caliber rifle and yelled at the men, who he claimed he thought came running toward him. Their actions led him to shoot at the ground in their direction. The defendant watched one man go down and continued to shoot until the other man was out of sight. The first man was found face-down, 30 yards from the house with a fatal wound to the back of his head; the second man was found 100 yards from the house with fatal wound to his back. "Before trial, [the] defendant sought to admit evidence that the decedents had committed a string of break-ins in the hours leading up to the shooting." Id. at 1. The trial court ruled "the evidence of decedents' 'crime spree' . . . was admissible under MRE 404(b) to prove modus operandi[, ]" that they were not" 'just a couple of Jehovah Witnesses walking up to the property, '" and "that this evidence had 'a logical tendency to prove or disprove at least what the [decedents] were there for.'" Id. at 1-2. As the trial court explained during its decision in this case, this Court reversed because "[e]vidence of the decedents' alleged crime spree [was] not material because it [did] not tend to prove or disprove any element of second-degree murder or [the defendant's theory of] self-defense." Id. at 3. Indeed, as also mentioned by the trial court, this Court explained that the "[d]efendant had no knowledge of the decedents' alleged criminal activities before he saw them on his property," and "[t]herefore, those acts [were] not probative of [the] defendant's belief" that he was in danger of death or serious bodily harm." Id. at 3. Finally, "whether the decedents were, or were not, legally on [the] defendant's property [was] not relevant to whether [the] defendant acted in self-defense or committed second-degree murder." Id. at 3-4. While the defendant's belief "that the decedents were on his property illegally [might] be relevant to his self-defense theory, the proffered evidence [did] not establish what [the] defendant did or did not believe." Id. at 3-4. Notably, the question in Lawrence was not severance.
A claim of right defense is viable "if a defendant had a good faith belief that the defendant had a legal right to take the property at issue." People v Cain, 238 Mich.App. 95, 119; 605 N.W.2d 28 (1999). See also People v Holcomb, 395 Mich. 326, 333; 235 N.W.2d 343 (1975); People v Karasek, 63 Mich.App. 706, 710-714; 234 N.W.2d 761 (1975). Whiting, however, maintained that the property taken from the camper belonged to him alone. More specifically, Whiting denied that it belonged to defendant, Boyer, or any of the women.
The defendant in Vegh stipulated to consolidation of cases involving the sexual assault of his stepdaughter and the sexual assaults of two unrelated teenage girls who had stayed in his home. Vegh, unpub op at 1-2. After trial, defendant was convicted of the charges related to his stepdaughter, but acquitted of the charges related to the other girls. The defendant claimed that counsel was ineffective for stipulating to consolidation. Id. at 2. This Court determined that "[t]he facts and circumstances support a finding that permissive joinder would have been appropriate under MCR 6.120(B)(1)(c), because [the] defendant was engaged in a series of acts constituting parts of a single scheme or plan to sexually assault young girls staying in his home." Id. at 4. Nor was defendant unfairly prejudiced because the evidence of the other sexual assaults would have been admitted under MCL 768.27a. Id.
While keeping their guns pointed at Whiting, defendant and Boyer entered the camper and began taking Whiting's property, including Whiting's clothing, stereo equipment, tools, laptops, cell phone, fishing equipment, watches and jewelry, and "pretty much everything." The women waited outside the camper, running Whiting's belongings back and forth from his camper to their cars. According to Whiting, the group had two smaller, "dark colored cars." One of the vehicles was a Ford, but Whiting was not sure about the make of the other vehicle. In addition to taking Whiting's property, defendant and Boyer also demanded to know where Whiting kept his money. If Whiting did not answer their questions right away, they would "jam" their weapons in his "face even more." Whiting estimated the incident lasted 1½ to 2 hours and involved threats to shoot him. After defendant and his cohorts left, Whiting retreated to his parents' home and took a nap. He later reported the incident to his father, who called 911.
The second incident took place at Frank's Shop Rite in the Village of Grass Lake, about a mile away from Whiting's location. Frank Bednarski, the shop owner, arrived there between 7:00 and 7:30 a.m. At approximately 9:20 a.m., he was in the process of leaving when he noticed his truck had several bullet holes in its passenger side. Reviewing the store's surveillance footage, Bednarski saw a blue Chevy Cruze enter the store's parking lot. The vehicle slowed down, a hand came out of the front, passenger-side window, and, after a brief "flash" from the hand, the car left the parking lot. Bednarski called 911 to report the shooting. Unlike Whiting, however, Bernarski did not know defendant or Boyer.
The third incident on September 6th involved the shooting of Austin Puhr. Like Whiting, Puhr knew both defendant and Boyer. Puhr met defendant in jail years earlier, and thereafter, sold him methamphetamine. Puhr was staying at the America's Best Hotel in Blackman Township when defendant contacted him on Facebook, inquiring whether Puhr "had anything." Puhr informed defendant that he had methamphetamine and they arranged to meet. Defendant told Puhr that he had $100, which was sufficient to purchase about a gram of methamphetamine.
The prosecution provided Puhr with an immunity agreement regarding any potential criminal charges arising from the possession, transportation, or attempted distribution of controlled substances to defendant and Boyer.
As this Court recently explained, the trial court's reliance on Pope is misplaced because it is neither precedentially binding, MCR 7.215(C)(1), nor did it address the severance question. People v Jarrell, unpublished per curiam opinion, issued February 10, 2022 (Docket No. 357753), slip op at 2 n 2. Rather, as the trial court recognized, the defendant had two separate trials because the Pope trial court judge determined that the "charges lacked sufficient connection." Id.
Puhr asked defendant to let him know when he was on his way. Later, a small blue Chevy car, which Puhr recognized as one that defendant sometimes drove, pulled up in the area of a Bob Evans restaurant and Starbucks. Typically, Puhr would jump into defendant's car, make the exchange of drugs for money, and hop out. When Puhr jumped into the front passenger seat this time, he noticed defendant was driving and Boyer was sitting in the middle of the backseat. Boyer had never before been present during their prior drug transactions. Defendant then drove away with Puhr, telling him to give them "the shit." Puhr reported that defendant and Boyer did not have the money. Defendant also locked the car's doors and held onto Puhr's left arm to keep him inside the car. From the backseat, Puhr heard a gun being racked. Puhr turned around briefly and saw Boyer with a black handgun. Puhr managed to open the car door, jump out, and run. He did not recall much of what happened next, but he remembered running back toward the America's Best. Puhr was on the grass near Bob Evans when he saw the car double back toward him. Although Puhr remembered hearing gunshots, he did not recall feeling them. The next thing Puhr recalled was lying on the grass and looking up at the sky. Puhr was shot six times. After being transported to the hospital, Puhr was placed in a medically-induced coma for two weeks and underwent multiple surgeries to repair the injuries inflicted.
The Bob Evans is approximately thirteen miles from Frank's Shop Rite.
See footnote 2.
Jordan Cole witnessed the Puhr shooting. Cole offered a similar description of the event. At approximately 6:00 or 6:30 p.m., Cole saw a darker, "blueish," smaller-sized sedan swerve into a neighbor's yard. A man either jumped away from or out of the car's passenger side, and Cole heard gunshots. The man ran away, but the car made a U-turn in the middle of the street, following the man off the road and on to a field by the Bob Evans. The car looked like it was trying to chase the man down to run over him. After the man dove out of the way, Cole heard additional gunshots. Cole called 911. Cole also recounted that the driver of the vehicle appeared to be wearing a face covering, possibly a black-and-blue "neck gaiter."
The Jackson County Sheriff's Office investigated the second incident at Frank's Shop Rite. Detective-Sergeant Bryan Huttenlocker testified that law enforcement was aware of multiple incidents involving guns and a blue Chevy Cruze. The first incident involving Whiting appears to have been investigated by the Michigan State Police and Blackman Township. The third incident involving Puhr was also investigated by Blackman Township police, who contacted Huttenlocker to report a blue Chevy Cruze was involved. Detective Allen from Blackman Township also stated that he might be calling Huttenlocker later as they would probably want to conduct a joint investigation.
At about 12:30 a.m. on September 7th, deputies contacted Huttenlocker to report that they had some suspect information. In turn, Huttenlocker contacted Detective Allen to coordinate and head to a location. But further investigation determined that the Chevy Cruze they were looking for was not there.
Detective Allen came to that location and the Sheriff's Department had five names. Because Detective Allen was familiar with Rudd, who lived around the corner, he talked to her and she provided additional information. In the interim, Huttenlocker had also called in Detective Freeman to follow up with Whiting. Detective Freeman later provided two addresses, including Rudd's.
Thereafter, the police stopped and arrested Boyer, who had left the second address and was driving the blue Chevy Cruze. The police obtained a search warrant for the home, finding relevant items, including weapons.
The police also went to the home where defendant had rented a bedroom. Defendant refused to come out. The police obtained a warrant and the special response team arrested him.
The following day, Detective-Sergeant Huttenlocker interviewed both defendant and Boyer regarding the incident at Frank's Shop Rite. Defendant admitted he was in the blue Chevy Cruze on September 6, 2020, sitting in the passenger seat as he and Boyer drove "around aimlessly." Defendant explained that he had just purchased a new handgun. As defendant was looking at his cell phone, Boyer reached over him and shot multiple rounds from defendant's gun out of the passenger-side window.
During Boyer's interview, Boyer initially denied knowing who shot at the truck at Frank's Shop Rite. But, after being informed that defendant had identified Boyer as the shooter, Boyer confessed that he was driving the blue Chevy and fired through the passenger-side window.
On September 8, 2020, a felony complaint charging defendant with AWIM and felony-firearm as to the Puhr incident was filed. Over a month later, an amended felony complaint was filed adding charges of armed robbery and felony-firearm as to the Whiting incident along with discharge of a firearm from a vehicle, MCL 750.234a(1)(a), as to the incident at Frank's Shop Rite.
At the preliminary examination, however, the prosecutor asked the district court to strike the felony-firearm charge associated with the AWIM charge because there was no evidence that defendant had a gun during the incident related to Puhr. And despite the prosecutor's arguments that defendant could be convicted as an aider and abettor, the district court also declined to bind over defendant on the charge of discharging a firearm from a vehicle at Frank's Shop Rite. The district court reasoned that the evidence showed that defendant was present in the car, but Boyer was driving and fired the shots. Thus, as to defendant, the district court bound over on three counts: armed robbery and felony-firearm as to Whiting and AWIM as to Puhr. As to codefendant Boyer, the district court bound over on all five charges: armed robbery and felony-firearm as to Whiting, discharge of a firearm from a vehicle at Frank's Shop Rite, and AWIM and felony-firearm as to Puhr.
In the circuit court, defendant moved to sever the charges because they were unrelated. Defendant asserted that the two incidents were separate, not based on the same conduct or transaction, and they could not be considered a series of connected acts or a series of acts constituting parts of a single plan or scheme. Defendant maintained that the charges were unrelated and that failure to sever them would prejudice him because the jury would "use evidence with respect to one act as proof somehow that he was a bad person and therefore committed the other acts."
In response, the prosecutor argued that the incidents were part of series of connected acts within the meaning of MCR 6.120(B). The prosecutor characterized the events on September 6, 2020, as a "single prolonged and violent crime spree" perpetrated by defendant and Boyer in the course of a day, in the same geographic area, using the same vehicle, and using firearms during each incident. The prosecutor also asserted that jury instructions could be provided to ensure that the jury did not use the different events for propensity purposes.
Following a hearing, the trial court denied defendant's motion to sever the charges. The trial court reasoned:
[T]he Court is going to make . . . a finding as follows. That I am going to find that these are a series of connected events. We're dealing with a-with a 12hour crime spree that I agree with [the prosecutor], started as an armed robbery and it ended as an armed robbery.
Not only are the crimes related by sheer proximity and time to one another, they are all perpetrated by the same two individuals, one directly after the other throughout the course of a single day-12-hour spree. They all involve the use of a firearm. In fact [they] were all perpetrated by the use of the same vehicle, a blue Chevy Cruze.
The . . . State cites People v [Vegh], [unpublished per curiam opinion of the Court of Appeals, issued January 11, 2018 (Docket No. 333242)], which they attach to their brief. In that case, the defendant was charged with [c]riminal [s]exual [c]onduct of multiple different victims throughout the course of several days. The fact that the separate charges involve different victims at different times was not a proper justification for the severance of the defendant's charges.
So in this case, I think that there is a sufficient series of connections between the all-alleged acts such that they should not be severed.
I don't think that there's undue prejudice in this case either, because among other things, if the State did have to chop up their case and try separate cases, they . . . would bring in . . . MRE 404[(b)] evidence. [The c]ourt would . . . [in] all likelihood give limiting instructions. This may be a case where it's appropriate to use limiting instructions.
But sometimes I think the law should find . . . the cases, when they're related to a series of connected events as they are in this case, should be tried all as . . . one piece, not piece-mealed out into separate different episodes.
So I end up, like the case with . . . [People v Jeffrey] Nathaniel . . . [Pope, unpublished per curiam opinion of the Court of Appeals, issued March 23, 1999 (Docket No. 204645), ] and I'm trying to explain to the jury - . . . I can't explain why [the Jackson Narcotics Enforcement Team's] . . . there looking for drugs because the [j]udge has cut me off at the knees saying you can't talk about that. You can only talk about the shooting of the police officers.
Well, later on the Court of Appeals said, "Nu-uh, Judge Grant, you were wrong about that. You should have let the prosecutor try [th]em both again [sic]." They were a series of connected events randomly with a short time frame that we're dealing - (undecipherable) - in this case, so.
Motion to sever the cases is . . . denied. Motion to sever the defendants from - into separate trials is denied.
Thereafter, the trial court entered an order denying defendant's motion to sever for the reasons stated on the record. This appeal followed.
In the circuit court, codefendant Boyer also moved to sever the charges, asserting that his five charges should be tried in three separate trials relating to Whiting, Frank's Shop Rite, and Puhr. The trial court also denied Boyer's motion to sever. Boyer filed an interlocutory application for leave to appeal, which this Court denied "for failure to persuade [it] of the need for immediate appellate review." People v Boyer, unpublished order of the Court of Appeals, entered May 17, 2021 (Docket No. 356808). Boyer did not appeal to the Supreme Court.
Whiting identified the five culprits who robbed him as defendant, Boyer, Boyer's girlfriend, April Rudd, and Christina Green. The first three were armed; the latter two were not. Puhr identified defendant and Boyer as the robbers. Puhr testified that Boyer was armed and the prosecution dismissed the felony-firearm charge it had initially issued against defendant.
II. ANALYSIS
On appeal, defendant argues that the trial court erred by denying his motion to sever the charges and to hold two trials: one related to Whiting and the second related to Puhr. As in the trial court, defendant again maintains that the charges are not related within the meaning of MCR 6.120. According to defendant, the evidence regarding the distinct incidents would not be admissible as other-acts evidence in separate trials, and joinder of the charges will unfairly prejudice defendant by allowing the prosecutor to use the separate incidents as propensity evidence. Additionally, defendant contends for the first time on appeal that joinder violates due process and that joinder will infringe on his decision whether to testify on one charge while remaining silent on other counts. We disagree.
A. 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 Danto, 294 Mich.App. 596, 605; 822 N.W.2d 600 (2011) (quotation marks and citation omitted). In this case, defendant moved to sever the charges related to Whiting and Puhr into two separate trials on the basis that the charges were not related within the meaning of MCR 6.120. This issue is, therefore, preserved for review. See Danto, 294 Mich.App. at 605. However, for the first time on appeal, defendant also argues that failure to sever the charges will violate his constitutional rights to due process and to testify or remain silent. "[A]n objection on one ground is insufficient to preserve an appellate argument based on a different ground." Id. Defendant's motion to sever did not raise these constitutional issues, and these constitutional issues are, therefore, not preserved for our review. See id.
Whether joinder is appropriate is a mixed question of fact and law. To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute related offenses for which joinder is appropriate. This Court reviews a trial court's factual findings for clear error and its interpretation of a court rule, which is a question of law, de novo. [People v Gaines, 306 Mich.App. 289, 304; 856 N.W.2d 222 (2014) (quotation marks and citation omitted).]
Whether charges are related is a question of law that this Court reviews de novo. People v Girard, 269 Mich.App. 15, 17; 709 N.W.2d 229 (2005). "However, the ultimate decision on permissive joinder of related charges lies firmly within the discretion of trial courts." Gaines, 306 Mich.App. at 304 (quotation marks and citation omitted). Generally, this Court reviews constitutional claims de novo. People v Solloway, 316 Mich.App. 174, 201; 891 N.W.2d 255 (2016). However, defendant's constitutional arguments regarding due process and his right to testify or remain silent are unpreserved, and accordingly, this Court's review is limited to plain error affecting defendant's substantial rights. Id. at 201-202.
B. JOINDER OF RELATED OFFENSES UNDER MCR 6.120
Joinder and severance of charges is governed by MCR 6.120, which, in relevant part, states:
(B) Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either
the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an opportunity to be heard.
(C) Right of Severance; Unrelated Offenses. On the defendant's motion, the court must sever for separate trials offenses that are not related as defined in subrule (B)(1).
As explained by the Michigan Supreme Court, "[w]hen the joined counts are logically related, and there is a large area of overlapping proof, joinder is appropriate" under MCR 6.120. People v Williams, 483 Mich. 226, 237; 769 N.W.2d 605 (2009) (quotation marks and citation omitted). However, the court rule "does not permit the joinder of those offenses that are only of the same or similar character." Id. at 246 (quotation marks omitted). Whether evidence of the separate charges would be admissible in separate trials is "an important consideration" because joinder of charges "cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial." Id. at 237 (quotation marks and citation omitted).
In this case, the trial court did not err by concluding that offenses-involving acts of robbery or attempted robbery by the same defendants, on the same day, in close geographic proximity, using the same vehicle as well as handguns-amounted to a "crime spree" of offenses related within the meaning of MCR 6.120(B) as a series of connected acts or a series of acts constituting a single plan. Because the offenses are related, defendant was not entitled to severance under MCR 6.120(C). And, on the facts of this case, the trial court did not abuse its discretion by denying defendant's motion to sever under MCR 6.120(B).
As detailed by the trial court, the crimes at issue took place in a 12-hour period in relatively close geography proximity in Jackson County. Both defendant and Boyer participated in the crimes, using weapons, including defendant's handgun. During the robbery in the morning, defendant pointed a handgun at Whiting while Boyer held a longer rifle, and they demanded property from Whiting. Whiting described the vehicle used by defendant and Boyer as a smaller, dark sedan. Whiting also noted that defendant and Boyer arrived at his property with their faces covered. Whiting personally knew both defendant and Boyer: he had met them both in jail.
After robbing Whiting and before the incident with Puhr, according to defendant's statement to police, defendant and Boyer drove around "aimlessly" in a blue Chevy Cruze, and Boyer used defendant's handgun to shoot at a truck in a parking lot.
Later in the day, defendant and Boyer attempted to commit a second armed robbery. They again targeted a personal acquaintance-someone who, like Whiting, had a criminal history and had met defendant while in jail. Again, driving a dark colored sedan-more specifically identified by Puhr as a blue Chevy Cruze-defendant and Boyer held Puhr at gunpoint and demanded property from him. Defendant has attempted to characterize the events with Puhr as simply a "drug deal gone bad" as if that would somehow mean that it did not involve an attempted robbery, but Puhr's testimony supports that defendant and Boyer had no intention of buying drugs. They showed up with no money to pay Puhr, and instead, Boyer pointed a handgun at Puhr while defendant demanded that Puhr give them "the shit." Unlike Whiting, Puhr refused to comply with defendant's and Boyer's demands, and he was shot and nearly killed as a result. An eyewitness to the Puhr incident also noted that-as during the incident in the morning-defendant was wearing a face covering, possibly a neck gaiter.
On the whole, the sequence of events on September 6, 2020, evinces that defendant and Boyer undertook two robberies in Jackson County in the course of approximately 12 hours, and in doing so, they targeted victims known to them, used a handgun, drove a dark sedan, and wore face coverings. Defendant is certainly correct that the events are not identical. Nevertheless, the temporal proximity, the geographic proximity, the participation of both defendant and Boyer, the similarities between the methods employed (e.g., the use of handguns, a dark blue sedan, and face coverings), and the choice of personal acquaintances as victims support the trial court's conclusion that the charges involving Whiting and Puhr are related for purposes of MCR 6.120(B). Cf. People v Abraham, 256 Mich.App. 265, 272; 662 N.W.2d 836 (2003) ("Severance was not mandatory in the present case because the shootings occurred within a couple of hours of each other in the same neighborhood, with the same weapon, and were part of a set of events interspersed with target shooting at various outdoor objects."). Severance was not required under MCR 6.120(C).
Moreover, contrary to defendant's claims that evidence relating to the different events would not be admissible at separate trials, the trial court did not err when it concluded that the evidence would be admissible at separate trials under MRE 404(b). Under MRE 404(b), among other proper purposes, other-acts evidence may be offered to prove intent. "When other acts are offered to show intent, logical relevance dictates only that the charged crime and the proffered other acts are of the same general category." People v VanderVliet, 444 Mich. 52, 79-80; 508 N.W.2d 114 (1993), amended 445 Mich. 1205 (1994) (quotation marks and citation omitted). In this case, for example, defendant claims on appeal that he did not intend to rob Whiting but was instead innocently retrieving property that belonged to others. However, the fact that less than 12 hours later defendant-again accompanied by Boyer, driving a dark sedan, and with his face covered-attempted to rob another acquaintance at gunpoint, again involving a handgun, makes it objectively less probable that defendant acted with innocent intent at Whiting's camper that same morning. See id.
Conversely, with regard to the admission of evidence relating to Whiting at a trial relating to Puhr, defendant also asserts on appeal that he has a potential claim of self-defense with respect to the AWIM charges related to the incident involving Puhr. Puhr, in contrast, described an attempted armed robbery, in which he was held at gunpoint and shot when he attempted to escape. The fact that, earlier that same day, defendant also participated in an armed robbery of an acquaintance-similarly acting with Boyer, while driving a dark sedan, and with his face covered-and while armed with a handgun, tends to make it more probable that defendant and Boyer were attempting to rob Puhr at gunpoint that evening, in which case defendant would be ineligible to claim self-defense with respect to the events relating to Puhr. See People v Minor, 213 Mich.App. 682, 686 n 1; 541 N.W.2d 576 (1995) ("A robber or other wrongdoer engaged in felonious conduct has no privilege of self-defense . . . ."). See also MCL 780.972(1) ("An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual . . . .").
Although the evidence of the separate offenses is prejudicial, it is not unfairly so, and it does not appear that the danger of unfair prejudice substantially outweighed the probative value of the evidence. See MRE 403; see also People v McGhee, 268 Mich.App. 600, 614; 709 N.W.2d 595 (2005). Further, the trial court expressed a willingness to provide the jury with a limiting instruction regarding the use of the evidence in question. See McGhee, 268 Mich.App. at 614. In short, the trial court did not abuse its discretion by concluding that the evidence would be admissible at separate trials as other-acts evidence, a fact which strongly supports joinder. See Williams, 483 Mich. at 237.
Because a handgun was involved in each offense, evidence related to possession of the gun during each incident that day would also likely be admissible in separate trials. See People v Hall, 433 Mich. 573, 580-581; 447 N.W.2d 580 (1989) ("Evidence of a defendant's possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be direct, relevant evidence of his commission of that offense."); People v Parker, 76 Mich.App. 432, 450; 257 N.W.2d 109 (1977) (recognizing that the source of a weapon was relevant).
Both locations were in Jackson County, approximately fourteen miles apart.
That the evidence would be admissible as other-acts evidence at separate trials also undermines defendant's claim of prejudice because joinder of charges "cannot prejudice the defendant more than he would have been by the admissibility of the other evidence in a separate trial." Id. (quotation marks and citation omitted). Further, the facts regarding the day in question are not particularly complex, meaning that there is little risk of jury confusion. See Gaines, 306 Mich.App. at 305. And, as noted, the trial court expressed a willingness to provide a jury instruction, which would guard against potential prejudice relating to joinder. See Williams, 483 Mich. at 244.
In addition, the events on September 6, 2020, resulted in interconnected police investigations. Defendant was arrested at his house the following day by a special response team, and it appears that he was interviewed once. In other words, from the available evidence offered thus far, there would be considerable overlap in the police evidence relating to his arrest, the collection of evidence, and his interview with police. Likewise, to the extent that civilian witnesses would need to be called as other-acts witnesses at separate trials, judicial economy weigh in favor of a single trial. In other words, these overlapping proofs and concerns for the convenience of witnesses supports joinder. See MCR 6.120(B)(2); Williams, 483 Mich. at 237. Overall, the trial court did not err by concluding that the offenses were related within the meaning of MCR 6.120, and on the facts of this case, the trial court did not abuse its discretion by denying defendant's motion to sever the charges. See Gaines, 306 Mich.App. at 304.
C. CONSTITUTIONAL ISSUES
On appeal, defendant also argues for the first time that the joinder in this case violated, not only MCR 6.120, but also violated defendant's constitutional right to due process and infringed upon his decision whether to testify or remain silent as to each charge. These unpreserved arguments lack merit.
With regard to due process," '[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.'" Williams, 483 Mich. at 245, quoting United States v Lane, 474 U.S. 438, 446 n 8; 106 S.Ct. 725; 88 L.Ed.2d 814 (1986). As discussed, joinder was not improper on the facts of this case, and joinder will not result in any great danger of unfair prejudice to defendant. See Williams, 483 Mich. at 237. Defendant's due-process argument lacks merit.
Regarding the effect of joinder on defendant's decision whether to testify, defendant also has not shown error on this basis. Defendant maintains on appeal that he intends to raise a claim of self-defense with regard to the incident involving Puhr, and he contends that he will have to testify regarding this defense because only he can testify about his state of mind. In contrast, defendant asserts that he will defend against the charges involving Whiting on the basis that the property from the camper did not belong to Whiting. According to defendant, there are others who can testify with regard to the ownership of the property in question, meaning that defendant's testimony "would not be necessary to raise his defense" related to Whiting. According to defendant, because he wants to testify about one charge but may wish to remain silent in response to the other charges, severance is required. In support of this argument, defendant cites United States v Armstrong, 621 F.2d 951, 954 (CA 9, 1980), and Cross v United States, 335 F.2d 987, 991; 118 U.S. App DC 324 (1964).
Decisions of lower federal courts are not binding on this Court, but they may be considered persuasive. In re Estate of Vansach, 324 Mich.App. 371, 388 n 8; 922 N.W.2d 136 (2018).
Whiting described one vehicle as a dark-colored Ford and the other vehicle as dark-colored, but was unsure about its make. Puhr, on the other hand, recognized the blue Chevy that defendant sometimes drove.
In Cross, 335 F.2d at 989, the Court recognized that prejudice may arise in the context of joinder "when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence." The Court reasoned:
[A defendant's] decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent. It is not necessary to decide whether this invades his constitutional right to remain silent, since we think it constitutes prejudice within the meaning of [the federal rule permitting severance]. [Id. (footnotes omitted.)]Factually, Cross involved a defendant with a strong defense to one robbery claim-an assertion that "he was a victim and not a cohort of the armed robbers who entered the tourist home behind him." Id. at 990. The defendant was ultimately acquitted of this charge. Id. In contrast, his testimony regarding a second robbery-that he had been drinking heavily and did not know his whereabouts at the time of the second robbery-"was plainly evasive and unconvincing." Id. On these facts, the Court determined that the defendant had been prejudiced by joinder because the defendant "had ample reason not to testify [related to the second robbery] and would not have done so if that count had been tried separately." Id. Joinder thus placed the defendant "under duress to offer dubious testimony on that count," and it "confounded" the defendant in making his defense. Id. at 991.
Although Cross recognized that joinder can prejudice a defendant who wishes to testify on one count while remaining silent on another charge, Cross did not establish a bright-line rule that any cursory assertion of a desire to testify on one count and to remain silent on another count is enough to compel severance of related charges. To the contrary, subsequent decisions have refined the holding in Cross, making clear that Cross should not be read too broadly. See Baker v United States, 401 F.2d 958, 976; 131 U.S. App DC 7 (1968). In particular, in Baker, the United States Court of Appeals for the District of Columbia Circuit clarified its prior ruling in Cross as follows:
The essence of our ruling in Cross was that, because of the unfavorable appearance of testifying on one charge while remaining silent on another, and the consequent pressure to testify as to all or none, the defendant may be confronted with a dilemma: whether, by remaining silent, to lose the benefit of vital testimony on one count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other. Obviously no such dilemma exists where the balance of risk and advantage in respect of testifying is substantially the same as to each count. Thus unless the 'election' referred to by appellant is to be regarded as conclusive-and we think it should not be-no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information-regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other-to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying. [Id. at 976-977 (emphasis added and footnotes omitted).]
In Armstrong, 621 F.2d at 954, the second decision cited by defendant on appeal, the Ninth Circuit followed the approach in Baker, holding that severance is not required unless the defendant makes a convincing showing that he has both important testimony to give concerning one count and a strong need to refrain from testifying on the other.
Indeed, since Baker, other federal circuit courts have similarly followed this approach, holding that "a mere unexplicated assertion" of the desire to testify on one count, but not a second count, is not enough to require severance. United States v Werner, 620 F.2d 922, 930 (CA 2, 1980). Instead, under the widely-adopted Baker test, severance is only required "when a defendant demonstrates that he has both (1) important testimony to give concerning some counts and (2) a strong need to refrain from testifying with regard to other counts." United States v Ely, 910 F.2d 455, 457 (CA 7, 1990). The defendant must make "a convincing showing" in this regard. United States v Monteiro, 871 F.3d 99, 108 (CA 1, 2017) (quotation marks and citation omitted). Such a showing requires a defendant to make a proffer of what testimony he intends to offer regarding one charge and his reasons for not testifying regarding others; this showing cannot be made on the basis of speculation. See id. Moreover, under Baker, when addressing the possibility of prejudice and a defendant's reasons not to testify on one count, it must also be considered whether, if the trials were severed, the defendant nevertheless "would have been confronted with substantially the same evidence, because evidence of each of the joined offenses would be admissible in a separate trial for the other." United States v Weber, 437 F.2d 327, 332 (CA 3, 1970) (quotation marks and citation omitted).
Numerous federal circuit courts to have considered the issue has adopted an approach consistent with Baker. See United States v Monteiro, 871 F.3d 99, 108 (CA 1, 2017); Werner, 620 F.2d at 930; United States v Reicherter, 647 F.2d 397, 401 (CA 3, 1981); United States v Goldman, 750 F.2d 1221, 1225 (CA 4, 1984); United States v Forrest, 623 F.2d 1107, 1115 (CA 5, 1980); United States v Ely, 910 F.2d 455, 457 (CA 7, 1990); United States v Jardan, 552 F.2d 216, 220 (CA 8, 1977); Armstrong, 621 F.2d at 954; United States v Cox, 934 F.2d 1114, 1120 (CA 10, 1991); United States v Benz, 740 F.2d 903, 911 (CA 11, 1984). Numerous state courts also follow a similar approach. See 32 ALR 6th 38 (compiling cases).
Whiting described multiple weapons being used. Defendant had a black handgun while Boyer had an AR assault weapon and a black handgun. Puhr described Boyer as racking a black Glock that looked like a Hi-Point. Several weapons were apparently recovered from the home where Boyer resided. At preliminary examination, Puhr did not testify that defendant was armed, and the prosecution dismissed the felony-firearm charge against defendant as to the Puhr incident.
In this case, defendant failed to even raise this Baker issue in the trial court, and he certainly failed to make a convincing showing that he has (1) important testimony to give concerning one count and (2) a strong need to refrain from testifying with regard to other counts. He suggests on appeal that he may have a self-defense claim relating to Puhr, but he has made no proffer of his proposed testimony, either in the trial court or on appeal. On the available record, it would be nothing but speculation to suppose that he has important self-defense testimony to offer. Indeed, from the available record, and without a proffer from defendant, it is baffling how defendant could plausibly claim self-defense with regard to the incident involving Puhr. At the same time, defendant also has not adequately explained his reasons for not testifying regarding the incident involving Whiting. He notes on appeal that he intends to defend against the charges relating to Whiting by asserting that the property taken did not belong to Whiting, and he contends that his testimony may not be necessary to support this defense. But he fails to articulate a "strong need" or really any need to refrain from testifying in connection with the charges relating to Whiting. Moreover, given that the evidence of the respective charges would be admissible at separate trials as other-acts evidence, defendant would be confronted with much of the same evidence, even if the charges were severed, which also undermines defendant's speculative claims of prejudice. See Weber, 437 F.2d at 332. Ultimately, having failed to provide the trial court-or this Court-with a proffer of his self-defense testimony and having otherwise failed to provide adequate information to support his claim of prejudice, he has failed to make the convincing showing required to warrant severance under Baker, 401 F.2d at 976-977. Defendant is not entitled to relief on this basis.
In passing, defendant generally cites caselaw dealing with "mutually antagonistic" or "irreconcilable" defenses, which typically relates to joinder of codefendants-rather than joinder of charges for a single defendant. See, e.g., Zafiro v United States, 506 U.S. 534, 538; 113 S.Ct. 933; 122 L.Ed.2d 317 (1993); People v Hana, 447 Mich. 325, 347; 524 N.W.2d 682 (1994), amended 447 Mich. 1203 (1994). Defendant fails to explain the relevance of these cases to the facts at hand, and in any event, there is nothing mutually antagonistic or irreconcilable in defendant's contentions that he acted in self-defense during the incident with Puhr and that he cannot be guilty of robbing Whiting because the property did not belong to Whiting.
" 'A series of acts connected together' refers to multiple offenses committed 'to aid in accomplishing another, as with burglary and larceny or kidnapping and robbery.'" Tobey, 401 Mich. at 151, quoting ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance (Approved Draft, 1967), Standard 1.1, commentary.
Affirmed.
Anica Letica, P.J. (dissenting).
The armed robbery of Jonathan Whiting and the assault with the intent to commit murder (AWIM) of Austin Puhr were unrelated because they were not a series of connected acts or a series of acts constituting parts of a single scheme or plan. Therefore, the trial court erred when it denied defendant's motion for severance. The trial court further erred when it opined that the acts would be admissible under MRE 404(b) and that a jury instruction would be sufficient to protect defendant's right to a fair trial. I would reverse the trial court's order denying defendant's motion for severance and remand for separate trials as mandated by the plain language of MCR 6.120(C).1
I. BACKGROUND
The facts underlying the Whiting armed robbery and the Puhr AWIM are undisputed and were presented during preliminary examination. Defendant later moved for severance, which the prosecution opposed because, in its view, the incidents were part of a series of connected acts and a crime spree that began with the armed robbery of Whiting and ended with the attempted armed robbery of Puhr.2 Additionally, the prosecution viewed each incident as admissible MRE 404(b) evidence, meaning that the court's limiting instructions would ensure the jury would not improperly use either incident as proof of defendant's propensity to commit armed robbery. When denying defendant's motion for severance, the trial court explained:
[I]ronically, . . . this brings me up to a case that I was right on [what] I thought where the [j]udge sever[ed] it, my very first jury trial as prosecutor.
And you know . . . it really caused some confusion with the case . . . and then ironically, I had another murder trial here where the . . . defense attorney, . . . wanted to bring in evidence of this crime spree that these defendants were involved in. They were breaking . . . into homes during about a similar time frame that we're talking about. Broke into multiple different residences.
And then they finally get to the residence . . . and they're . . . obviously trying to break into his garage and in the outer part of his property. The homeowner gets out a gun, shoots and kills [th]em both.
And of course my . . . personal feeling as the trial judge is this defendant's now on trial for murder and gosh, it sure would be nice if maybe we . . . heard the whole story. You know, that - that's what I was thinking. You know, gee, . . . he's on trial for murder and may - maybe the jurors should know that these two guys weren't a couple of Jehovah Witnesses out at his front door.
And . . . you know what? The Court - the Court of Appeals came back and said, "You know what, [j]udge, the problem is . . . that the defen - or the victim - the or the - excuse me, the defendant didn't know anything about that, because they were - it was part of a different crime spree that he didn't know about. I still have to tell you I think that was wrong. I still - I - I still question whether that defendant got a fair trial.
And you know, and - and ironically, the defense was kinda trying to bring up [the] MRE 404[(b)] rule, too, that says, "Well, if there's a 404[(b)] rule for prosecutors[, ] there ought to be a 404[(b)] rule for defense attorneys, too." I thought there was some symmetry in that argument, by the way.
But . . . the Court of Appeals, when they weighed [in] on that, I don't know if it'll . . . go further . . . than it was, but . . . in some ways, it was the same - (undecipherable) - by the way, same - same car, same group, except that the - one of the drug participants at the final shooting where the alleged murder occurred, he was a - (undecipherable) - car that contained a . . . bunch of the stolen property.
But . . . in the end, the Court of Appeals notes that that should be severed, that they - they apparently didn't find a sufficient connection.3
Well, the [c]ourt is going to make . . . a finding as follows. That I am going to find that these are a series of connected events. We're dealing with a-with a 12-hour crime spree that I agree with [the prosecutor], started as an armed robbery and it ended as an armed robbery.
Not only are the crimes related by sheer proximity and time to one another, they are all perpetrated by the same two individuals, one directly after the other throughout the course of a single day-12-hour spree. They all involve the use of a firearm. In fact [they] were all perpetrated by the use of the same vehicle, a blue Chevy Cruze.
The . . . State cites People v [Vegh], [unpublished per curiam opinion of the Court of Appeals, issued January 11, 2018 (Docket No. 333242)4, which they attach to their brief. In that case, the defendant was charged with [c]riminal [s]exual [c]onduct of multiple different victims throughout the course of several days. The fact that the separate charges involve different victims at different times was not a proper justification for the severance of the defendant's charges.
So in this case, I think that there is a sufficient series of connections between the all-alleged acts such that they should not be severed.
I don't think that there's undue prejudice in this case either, because among other things, if the State did have to chop up their case and try separate cases, they . . . would bring in . . . MRE 404[(b)] evidence. [The c]ourt would . . . [in] all likelihood give limiting instructions. This may be a case where it's appropriate to use limiting instructions.
But sometimes I think the law should find . . . the cases, when they're related to a series of connected events as they are in this case, should be tried all as . . . one piece, not piece-mealed out into separate different episodes.
So I end up, like the case with . . . [People v Jeffrey] Nathaniel . . . [Pope, unpublished per curiam opinion of the Court of Appeals, issued March 23, 1999 (Docket No. 204645), 5 and I'm trying to explain to the jury - . . . I can't explain why [the Jackson Narcotics Enforcement Team's] . . . there looking for drugs because the [j]udge has cut me off at the knees saying you can't talk about that. You can only talk about the shooting of the police officers.
Well, later on the Court of Appeals said, "Nu-uh, Judge Grant, you were wrong about that. You should have let the prosecutor try [th]em both again [sic]."
They were a series of connected events randomly with a short time frame that we're dealing - (undecipherable) - in this case, so.
Motion to sever the cases is . . . denied. Motion to sever the defendants from - into separate trials is denied.
II. SEVERANCE OF THE CHARGES
A. MCR 6.120
Joinder and severance of charges is governed by MCR 6.120, which states:
(A) Charging Joinder. The prosecuting attorney may file an information or indictment that charges a single defendant with any two or more offenses. Each offense must be stated in a separate count. Two or more informations or indictments against a single defendant may be consolidated for a single trial.
(B) Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an opportunity to be heard.
(C) Right of Severance; Unrelated Offenses. On the defendant's motion, the court must sever for separate trials offenses that are not related as defined in subrule (B)(1).
B. ISSUE PRESERVATION AND STANDARD OF REVIEW
Defendant preserved this issue by moving for severance. And "[w]hether joinder is appropriate is a mixed question of fact and law." People v Gaines, 306 Mich.App. 289, 304; 856 N.W.2d 222 (2014). The analysis is straight-forward:
To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute related offenses for which joinder is appropriate. This Court reviews a trial court's factual findings for clear error and its interpretation of a court rule, which is a question of law, de novo. [Id. (quotation marks and citations omitted).]"Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made." People v McDade, 301 Mich.App. 343, 356; 836 N.W.2d 266 (2013).
The court rule, however, "does not permit the joinder of those offenses that are only of the same or similar character." People v Williams, 483 Mich. 226, 246; 769 N.W.2d 605 (2009) (quotation marks omitted). But, if the defendant's request for severance is timely and the offenses are unrelated, severance is mandatory. Id. at 234 n 6. If, on the other hand, this Court concludes that the offenses are eligible for joinder, the trial court's ultimate decision to join the offenses for a single trial is reviewed for an abuse of discretion. Gaines, 306 Mich.App. at 304.
C. DISCUSSION
The trial court determined that the offenses-the Whiting armed robbery and the Puhl AWIM-were armed robberies6 committed by the same defendants, 7 on the same day, in close geographic proximity, 8 using the same vehicle, 9 and handguns.10 The trial court viewed these offenses as a "crime spree." Accordingly, it concluded that the offenses were related within the meaning of MCR 6.120(B)(1) as "a series of connected acts," MCR 6.120(B)(1)(b), or "a series of acts constituting parts of a single scheme or plan[, ]" MCR 6.120(B)(1)(c).
In explaining when "offenses might be tried together as a series of connected acts[, ]"11 our Supreme Court provided two examples. People v Tobey, 401 Mich. 141, 152; 257 N.W.2d 537 (1977), superseded by court rule as recognized in Williams, 483 Mich. at 238-242. The first example involved joining charges of "maintaining a gaming room table and . . . keeping a place where gambling was permitted . . . ." Id. The Court described these acts as occurring within ninety minutes and arising "out of substantially the same transaction." Id. (quotation marks and citation omitted). The second example described a situation where a prison inmate escapes, steals a car, and takes hostages. Id. See also People v Abraham, 256 Mich.App. 256, 268, 271-272; 662 N.W.2d 836 (2003) (The trial court properly joined charges of first-degree premeditated murder, assault with the intent to commit murder, and their accompanying felony-firearm charges after the defendant stole a rifle and shot at two individuals within two hours in the same neighborhood and with the same gun "interspersed with target shooting at various outdoor objects."); People v Solak, 146 Mich.App. 659, 664-665, 667; 382 N.W.2d 495 (1985) (The trial court properly joined charges of driving under the influence and assault and battery after an officer stopped the defendant for speeding, and the defendant, who was intoxicated, assaulted the officer as he was in the process of citing the defendant for speeding.) These situations fit with the commonly understood definition of the word "connected" because they are "joined or linked together" or "hav[e] . . . parts or elements logically linked together." Merriam-Webster's Collegiate Dictionary (11th ed).
The Supreme Court adopted MCR 6.120 in 1989. Williams, 483 Mich. at 242.
Although the circuit court in this case referred to the offenses three times as "a series of connected events," the court rule refers to "a series of connected acts." MCR 6.120(B)(1)(b). There is no actional overlap between the Whiting armed robbery and the Puhr AWIM, nor is there a logical link with one act springing from an earlier act as described in Tobey, Abraham, and Solak. Instead, each offense is easily established without reference to the other. Whiting was asleep inside his camper when a five-person group, comprised of three armed culprits, including defendant and Boyer, arrived unannounced in two vehicles and demanded personal property or money, some of which they asserted belonged to Green or Boyer or a third person over the course of 1½ to 2 hours. More than twelve hours later, Puhr was sitting inside the Chevy Cruze to complete a pre-arranged drug transaction. Boyer racked a gun after defendant demanded "the shit," presumably referencing the methamphetamine. Puhr managed to jump from the car with Boyer shooting Puhr as he ran. Defendant then turned the car around to pursue Puhr and Boyer left the car to shoot Puhr, who was lying on the ground. These offenses are simply not a series of connected acts, and the prosecution has abandoned any argument that these offenses were a series of connected acts on appeal.
Instead, the prosecution posits that the trial court's denial of defendant's request for severance was proper because the offenses were "a series of acts constituting parts of a single scheme or plan." MCR 6.120(B)(1)(c). The problem for both the trial court and the prosecution is that categorizing the two offenses as a crime spree does not make it so. See e.g., People v Warren, 462 Mich. 415, 417-419, 431; 615 N.W.2d 691 (2000) (describing a crime spree where the defendant murdered his mother-in-law after breaking into her house, sexually and physically assaulted his wife, kidnapped her, and then stole his mother-in-law's car); Chivas v Koehler, 182 Mich.App. 467, 470; 453 N.W.2d 264 (1990) (two escaped inmates "went on a crime spree, committing several murders"); People v Reed, 172 Mich.App. 182, 186; 431 N.W.2d 431 (1988) (detailing a one-week crime spree where the defendant raped, sexually assaulted, and robbed, at times at gunpoint, at least four different women in separate locations); People v Laidlaw, 169 Mich.App. 84, 86-90; 425 N.W.2d 738 (1988) (recounting a crime spree where the defendant was convicted of eight crimes, including criminal sexual conduct, assault with the intent to commit criminal sexual conduct involving penetration, breaking and entering an occupied dwelling, unlawfully driving away an automobile, and entry without permission, as the result of his actions in the course of one morning). More importantly, it does not satisfy the court rule's plain language, requiring "a series of acts constituting parts of a single scheme or plan." Id. (emphasis added).
Returning to Tobey, the Supreme Court explained that "a series of acts * * * constituting parts of a single scheme or plan refers to a situation where a cashier made a series of false entries and reports to the commissioner of banking, all of which were designed to conceal his thefts of money from the bank[.]" 401 Mich. at 152 (quotation marks and citation omitted). And after this same language was codified in the court rule, our Supreme Court upheld a trial court's order granting the prosecution's motion to consolidate for trial separately charged drug and weapons offenses in November 2004 and February 2005. Williams, 483 Mich. at 236-238, 249-250. In Williams, the defendant was arrested after each offense and accoutrements associated with drug-trafficking were found. Id. at 230. Following the November offense, the defendant was charged with possession with the intent to deliver 50 grams or more, but less than 450 grams, of cocaine, felon-in-possession, and two counts of felony-firearm. Id. And following the February offense, the defendant was charged with possession with the intent to deliver less than 50 grams of cocaine, felon-in-possession, and felony-firearm. Id. Although the police found the evidence of the defendant's drug activity after executing search warrants at separate locations three months apart, "the offenses charged were related because the evidence indicated that [the] defendant engaged in ongoing acts constituting parts of his overall scheme or plan to package cocaine for distribution." Id. at 234-235. Accordingly, the Supreme Court affirmed the trial court's conclusion that the offenses charged were related because they "reflect[ed] [the] defendant's 'single scheme or plan' of drug trafficking." Id. at 234, quoting MCR 6.120(B).
Similarly, this Court has upheld a trial court's decision to join offenses charging a defendant with sexually assaulting multiple children for trial because such offenses constitute a series of acts constituting parts of a single scheme or plan. See Gaines, 306 Mich.App. at 303-306; People v Bailey, 310 Mich.App. 703, 718-719; 873 N.W.2d 855 (2015) (or a series of connected acts).
Citing to People v Wood, unpublished per curiam opinion of the Court of Appeals, issued September 12, 2019 (Docket No. 342900), the prosecution asserts that the court rule's language equally applies when armed robbery offenses are joined. In Wood, the prosecution charged the defendant with the armed robbery of a Walgreens in Grand Rapids and a second armed robbery of a gas station, committed a week later, in the City of Wyoming. This Court held:
In this case, defendant's conduct in the two robberies was substantially similar, evidencing a "single scheme or plan." See MCR 6.120(B)(1)(c). Defendant's common scheme involved entering stores when they were nearly empty, purchasing a drink, asking for change for a dollar, pretending to be armed, and assaulting the clerk while attempting to take cash from the open drawer. The two robberies for which defendant was tried happened only seven days apart. The factual similarities between the two robberies evidence a common plan-a series of connected acts constituting a single scheme or plan to perpetuate armed robberies. [Wood, unpub op at 5.]
As already discussed, the Whiting armed robbery and the Puhr AWIM, while near in time and location, involved different participants and acts. Unlike the identical armed-robbery process employed in Wood, the obvious differences between the Whiting armed robbery and the Puhr AWIM render them distinguishable. Simply put, there is no evidence that these offenses were based on "a series of acts constituting parts of a single scheme or plan."
But, even if these offenses were somehow related under the court rule, I would nevertheless conclude that the trial court abused its discretion in determining that they should be joined for trial. The trial court essentially decided that the evidence of the Whiting armed robbery would be admissible as other-acts evidence under MRE 404(b) as to the Puhr AWIM and vice versa. But the proper test for determining whether offenses may be joined for trial is whether they are related under MCR 6.120(B)(1), not whether the evidence could be offered for a proper purpose under MRE 404(b) in a trial on the other charge.
I recognize that the Supreme Court determined that even if unrelated offenses were improperly joined for trial, whether that offense would have been admissible under MRE 404(b) factors into the analysis of whether the defendant was prejudiced by misjoinder. Williams, 483 Mich. at 244-245. And, unlike the prosecutor in Williams, 483 Mich. at 229-230, the prosecutor in this case did not provide written notice that it sought to admit the evidence under MRE 404(b)(1).
Moreover, I question whether evidence of the Puhr AWIM would be admissible under MRE 404(b) as to the Whiting armed robbery and vice versa. The prosecution suggests that it would be admissible
to show [defendant's] motive and intent in [the Whiting armed robbery] was not to reclaim property of another[] but to steal it at gun[]point just as he did in [the Puhr AWIM]. Similarly, defendant's violent crime spree is important to show that his
actions in [the Puhr AWIM] were not self-defense but rather to steal drugs at gun[]point.Oddly, the prosecution does not reference "scheme, plan, or system in doing an act," and, regardless, in my view, the evidence could not be properly admitted for the purposes the prosecution advances. See and compare People v Crawford, 503 Mich. 990; 924 N.W.2d 248 (2019) (this Court erred when it concluded "that evidence of the 2011 robbery served the proper purpose of showing intent, MRE 404(b)(1)."); People v Denson, 500 Mich. 385; 902 N.W.2d 306 (2017) (the trial court erred when it admitted evidence of a prior assault with the intent to do great bodily harm (AWIGBH) conviction under MRE 404(b) where the defendant was charged with AWIGBH and claimed self-defense; the prior act was not material to rebutting the self-defense claim nor was it sufficiently similar to the charged offense to make it relevant). Finally, even if evidence of the Puhr AWIM could be properly admitted for a noncharacter purpose during a trial on the Whiting armed robbery, the prejudicial effect of introducing such evidence would certainly be substantially more prejudicial than probative. People v Galloway, 335 Mich.App. 629, 646-647; 967 N.W.2d 908 (2020). Undoing this prejudice with a limiting jury instruction seems unlikely. Id. at 647.
Defendant mentioned self-defense regarding the Puhr incident without elaboration. See generally People v Leffew, Mich.; N.W.2d (2022) (discussing common law self-defense and the Self-Defense Act, 780.791 et seq.).
This leads to a related point regarding the proper analysis to be applied when deciding whether permissive joinder is appropriate, namely, whether the Puhr AWIM presented "the potential for . . . prejudice stemming from the . . . nature of the evidence," MCR 6.120(B)(2), and whether severance was "appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense." MCR 6.120(B). The trial court never addressed either question because it assumed that the evidence of each offense would be admissible in a trial for the other under MRE 404(b). The trial court's misapplication or misunderstanding of the law in reaching its decision was an abuse of discretion People v Humphrey, 313 Mich.App. 309, 318; 877 N.W.2d 770 (2015).
For these reasons, I respectfully dissent.