Opinion
365018
02-01-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARQUON LEON JACKSON, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 22-049711-FC.
Before: HOOD, P.J., and REDFORD and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by interlocutory leave granted an amended order denying his motion to dismiss the criminal charges of open murder, MCL 750.316, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227(b), after the court declared a mistrial based upon a question defense counsel asked a prosecution witness during cross-examination. We affirm.
People v Jackson, unpublished order of the Court of Appeals, entered April 26, 2023 (Docket No. 365018).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
A. UNDERLYING INCIDENT
This case arises from the shooting death of Mozzaffer Khogaly outside a gas station convenience store in the early morning hours of March 15, 2022. Khogaly parked his vehicle parallel to the sidewalk just outside the entrance to the store and left the vehicle running with the driver's door open. Khogaly entered slowly into the store, ducked behind the soda machine, opened a package of pistachios, and began eating them. The store's clerk confronted Khogaly that he needed to pay for the nuts, but Khogaly refused and told the clerk that she would have to call the police to get him to leave. The clerk called 911 and Khogaly began throwing pistachios at her.
The facts are taken primarily from the transcript of defendant's preliminary examination.
While Khogaly stood near the counter, defendant entered the store, selected some items to purchase, and went to the counter to pay for them. The clerk testified that Khogaly threw a handful of pistachios at defendant. When defendant stepped sideways and said, "[E]xcuse me," Khogaly said that he meant to throw the pistachios at "the bitch." Khogaly then said, "[W]e can make it for you," and reached over to grab defendant. Defendant backed away, told Khogaly not to touch him, and showed Khogaly his pistol in a holster on his hip. The clerk testified that Khogaly stepped toward defendant, who stepped backward and told Khogaly to stay back. Defendant then drew his gun, and the clerk again called 911. At that point, defendant noticed that he had left his wallet on the counter and asked the clerk to retrieve it. The clerk testified that Khogaly reached for the wallet and tried unsuccessfully to grab the clerk's arm as she picked up the wallet. Khogaly stepped toward defendant and "started with him again." Defendant continued walking backward with his gun drawn while telling Khogaly to "stop, just leave." Khogaly kept walking toward defendant despite the fact that defendant had his gun drawn. Defendant left the store, and Khogaly followed defendant out and stood next to his vehicle's open driver's door, then walked toward defendant. The clerk testified that Khogaly then said, "I got you," and reached into his vehicle as if he were going to grab something. The clerk saw defendant "get scared," and she described the reaction on his face as "oh, shit, I'm going to die if I don't shoot." Defendant fired multiple shots, "shooting around trying to get him to stop," before defendant ran off.
At the preliminary examination the court admitted surveillance video from a camera inside and a camera outside the store. The video from inside of the store is consistent with the clerk's testimony. This video reveals that defendant paid for his items with a credit card, and while trying to replace his card in his wallet, Khogaly tossed some pistachios at defendant. Defendant laid his wallet on the counter and turned toward Khogaly. Khogaly responded by lunging at defendant and appeared to attempt to grab him. Defendant backed away, leaving his wallet open on the counter. Defendant revealed that he had a holstered handgun. Khogaly advanced a step toward defendant. Defendant drew his gun with his right hand and pointed it at the floor. Defendant pointed toward the door with his left hand. Defendant retreated behind the beverage dispenser island placing it between him and Khogaly. Defendant spoke with the clerk who stepped to the counter and retrieved defendant's wallet. As she did so, Khogaly attempted to grab the wallet. The clerk stepped to the counter and took defendant's wallet as Khogaly tried to take possession of it. The clerk backed away from the counter and held defendant's wallet while she used her cell phone to make a call. Another customer came into the store and noticed the situation and fled out the store. Defendant followed behind her but stopped in the open doorway. Meanwhile, the clerk had defendant's wallet. Defendant stepped back inside the door with gun drawn and pointed at Khogaly who stood between defendant and the clerk. Defendant exited the store and retreated when Khogaly followed him outside and stood by his car adjacent to the store's doorway. Defendant stepped up to the sidewalk by the store windows and took a step toward the door. Defendant had his gun pointed toward Khogaly who stood by the door. Khogaly then advanced toward defendant, then stood still. Khogaly then gestured to defendant with a dismissive wave of his hand, turned, and stepped toward his open car door. The record does not contain further footage from the camera inside the store.
The surveillance videos do not feature audio.
The video from outside the store shows a female patron fleeing the store and returning to her car. Defendant exited the store backward with gun drawn pointed at Khogaly who followed defendant out of the store. Khogaly walked to his open car door, stopped, turned toward defendant, walked to the store entrance, then advanced toward defendant. Defendant kept his gun pointed at Khogaly. Khogaly took a couple steps toward defendant who held his gun in both hands and pointed at Khogaly. Khogaly gestured toward defendant with a dismissive wave, turned and stepped toward his open car door, then stopped and turned back toward defendant. Khogaly appears to make a statement to defendant who took a step forward. Khogaly made further remarks to defendant who then stepped backward. Khogaly stepped toward defendant, then backed up and stopped. Khogaly then went to his open car door while talking to defendant and reached into the car as defendant came a couple steps closer. As Khogaly reached into his car, defendant opened fire. Defendant then ran sideways from the scene looking in Khogaly's direction and continued to point his gun in that direction.
An officer dispatched to the location approached the scene with the dashcam recording. The officer noticed a person walking across the street on the sidewalk approaching with his hands in the air. Defendant surrendered to the police who took him into custody. The dashcam video recorded the arrest and later featured conversation between law enforcement officers.
Three days before trial, the prosecution provided defense counsel a dashcam video recording from a police cruiser that responded to the scene. The dashcam video recorded defendant's arrest and several minutes after that an officer can be heard stating: "I just ran the victim. He's . . . flagged as being part of a possible terrorist organization." The record does not reflect that the prosecution moved in limine to prevent or limit the defense's introduction of any portion of that dashcam video.
B. PROSECUTION'S MOTION FOR A MISTRIAL
At trial, the court admitted the two store surveillance videos as part of the prosecution's case-in-chief. The videos were viewed by the jury.
The prosecution called Khogaly's cousin, Ibrahim Elsayed, as a witness. Elsayed testified that he lived in North Carolina and was talking on the phone with Khogaly at approximately 12:30 a.m. on March 15, 2022. Khogaly told Elsayed to wait for him. Elsayed testified that after waiting four or five minutes, he heard Khogaly arguing with another man. Elsayed heard the other man repeatedly say, "I'm going to shoot you." Elsayed testified that he kept calling Khogaly's name and heard "somebody tell him like I'm going to shoot, I'm going to kill you and then just do it." He heard Khogaly keep telling the man, "just do it. If you want to do it, do it." Elsayed then heard a few gunshots. He heard Khogaly say "he shot me."
During cross-examination, Elsayed admitted that he did not know what had transpired inside the store. Elsayed admitted that he did not call the police on March 15, 2022, and first gave his statement to the police in June. He testified that he knew Khogaly well. Defense counsel then asked, "You know that he's a member of a terrorist organization-." The prosecution objected and the trial court directed Elsayed not to answer.
The trial court held a bench conference and ordered the jury and spectators to leave the courtroom. The court heard arguments from counsel on the admissibility of the evidence pursuant to MRE 404(a)(2). The prosecution argued that the evidence was more prejudicial than probative and that no evidence demonstrated aggression by Khogaly. The prosecution asserted that the question served no purpose except to inflame the jury's passion against Khogaly by painting him as a terrorist. Defense counsel argued that evidence of Khogaly's membership in a terrorist organization had relevance to determining whether he had a character for aggression. Defense counsel also argued that he could ask the witness the question and the witness could answer that Khogaly was not a terrorist. He asserted that it would be important for the jury to hear the testimony, particularly in this case in which defendant relied on a theory of self-defense to defend himself. Defense counsel pointed out that the jury should hear such evidence where someone tried to intimidate and harass defendant, because Khogaly's character for aggression was at issue in this case. The prosecution responded that, even if evidence existed that defendant was a terrorist, that alone would not be evidence of a character for aggression. The prosecution argued that the questioning of the witness tainted the jury by inflaming the members' biases.
The trial court found the question to be a close call but ultimately ruled that defense counsel would be allowed to ask Elsayed if he was aware of "any acts of aggression, violence, intimidation, and so forth" by Khogaly, but that the reference to the word terrorist went too far and should be avoided. The prosecution responded that then it should be permitted to present evidence of defendant's character. Defense counsel informed the court that it would withdraw the question and stated that the court could cure any issue with an instruction to the jury. The prosecution responded that defense counsel could not "unring the bell" and that a curative instruction would not be adequate to cure the prejudice of the reference to Khogaly as a terrorist. The prosecution suggested that a mistrial might be required to cure the problem. The court reflected upon the question asked by defense counsel and noted that evidence of the victim's character had not been admitted and that consequently the prosecution could not offer any evidence of the character for aggression of the accused. The trial court indicated that it would rely upon a curative jury instruction. The prosecution placed an objection to the court's ruling and argued that it should be permitted to offer evidence of the character of the accused. When the jury returned, the court instructed the jury to disregard the question asked by defense counsel in its entirety as part of its deliberation and analysis of the facts and evidence.
The prosecution later filed a motion asking the court to declare a mistrial. At the hearing, the prosecution argued that defense counsel's question required the trial court to declare a mistrial because the officers' remarks on the dashcam video did not establish that Khogaly was a terrorist. The prosecution essentially argued that defense counsel's question served only to inflame the jury and no evidentiary purpose. The prosecution asserted that the jury reacted to the question and that no curative instruction could ensure a fair trial requiring a mistrial. The prosecution advised the court that it did not intend to present the dashcam video as evidence during the trial. Defense counsel countered that he asked the witness a leading question permissible on cross-examination and had a good-faith basis for doing so because the information was contained in the dashcam video. Defense counsel asserted that defendant's defense required that he had not been the first aggressor and he could present evidence of the victim's character for aggression under MRE 404(a)(2). Defense counsel argued that defendant had the right to have his case completed by one tribunal. He pointed out that the jurors agreed without hesitation that they would follow the court's instructions, but asserted that the case presented issues regarding who acted as the aggressor and whether defendant's beliefs were honest and reasonable.
The trial court asked the prosecution to address the double-jeopardy issue. The prosecution argued that an impartial verdict could not be rendered because of the nature of the question posed by defense counsel necessitating a mistrial, and double jeopardy would not attach under the circumstances. The prosecution asserted that the question tainted the jury which created manifest necessity to declare a mistrial which did not bar retrial on double-jeopardy grounds.
The court heard testimony from a law enforcement officer who attended the trial and was present in the courtroom when defense counsel asked the question. She testified that, after the question, some of the jurors looked at Khogaly's family. She admitted that she could not say what the jurors were thinking. She noticed after the proceedings resumed that the same couple jurors continued watching the family. She opined that, instead of paying attention to evidence being presented, they watched Khogaly's family. Defense counsel asserted that the question had not been improper and that persons in the back of the courtroom were reacting throughout the day.
The trial court found defense counsel's question improper because of the prejudicial nature of the question which caused manifest unfairness irreparably compromising the trial, and ruled that it must declare a mistrial. The court concluded that the curative limiting instruction could not take away the prejudice that resulted.
C. DEFENDANT'S MOTION TO DISMISS
Following the court's declaration of mistrial, defendant moved to dismiss the charges with prejudice, arguing that double jeopardy barred retrial. He argued that even if he did not know of Khogaly's reputation for aggression, evidence of Khogaly's character for aggression could be admitted, nevertheless, to show that he was the probable aggressor because defendant relied on self-defense for his defense in a homicide case. Defendant argued that under People v Harris, 458 Mich. 310; 583 N.W.2d 680 (1998), he could present evidence of the victim's character for aggression and did not have to have prior awareness of such. He pointed to the evidence of the victim's conduct in the store that established that defendant used different forms of nondeadly force in self-defense. At the hearing, defense counsel argued that the prosecution's position that no evidence established that Khogaly acted as the aggressor was untrue. Defense counsel argued that he asked a proper question, and therefore, no necessity existed for granting a mistrial. Defense counsel contended that the prosecution had its one chance to try defendant. In answer to the court's question regarding Harris, defense counsel clarified that one may introduce evidence that the victim had a character for aggression as part of establishing that the victim was the probable aggressor.
The prosecution argued that being a member of a terrorist organization does not necessarily show that a person is aggressive. But the question itself was inflammatory and made an impression on the jury distracting them from the issues of the case. According to the prosecution, "even when relevant, character evidence of a victim's trait for aggression is only admissible through reputation or opinion under MRE 405(a)." The prosecution argued that the question was not proper because "an affirmative answer to this question does not offer evidence of the victim's reputation for aggression." The prosecution argued that evidence of the victim's connection to terrorism did not establish a reputation for having a character for aggression, and that the aggressor's identity could be discerned from the surveillance video of the incident. The prosecution argued that once defense counsel rang the bell it could not be unrung and a curative instruction did not suffice to cure the taint. The prosecution contended that extreme, unfair prejudice resulted because the defense labeled the victim a terrorist. The prosecution asserted that the victim's character lacked relevance and was inadmissible. The prosecution argued that unfair prejudice compromised the prosecution's right to a fair trial, manifest necessity required a mistrial, and double jeopardy did not bar retrying defendant.
The trial court noted that jeopardy attaches when a jury is selected and sworn but explained that the general rule that the prosecution is allowed one opportunity to obtain a conviction is subordinate to the public's interest in fair trials and a retrial is permitted when the mistrial has been occasioned by manifest necessity. The court stated that double jeopardy does not bar retrial when the mistrial was caused by the defendant. The court recalled that it made explicit findings at the hearing on the motion for the mistrial and determined that no reasonable means would ensure a fair trial. The court opined that only when the defendant knows of the victim's character for aggression is evidence of such admissible under MRE 404(a)(2). The court ruled that MRE 404(a)(2) precluded the question asked by defense counsel which justified declaring a mistrial because it interfered with the People's right to a fair trial, and manifest necessity required a mistrial in this case. The court held that double jeopardy did not attach and denied defendant's motion to dismiss with prejudice.
The court entered a written order denying the motion to dismiss, reasoning that (1) defense counsel's question was inadmissible because defendant did not know of the victim's alleged terrorist affiliation so it was not relevant to defendant's defense of self-defense respecting his state of mind at the time of the shooting; (2) defense counsel's question was so inflammatory that the prejudicial effect could not be removed in any way other than by declaring a mistrial; and (3) double jeopardy did not bar retrial because the mistrial was "occasioned by manifest necessity."
The court stated that, under Harris, when a defendant asserts self-defense, reputation evidence tending to show any aggressive or violent character of the deceased victim, even if such character is unknown to defendant, is allowable to show only that the deceased victim was the likely aggressor. The court, however, explained that such evidence although relevant may be excluded under MRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice. The trial court explained:
Here, the court recognizes that the subject of terrorism is one that kindles the passions and inflames the emotions of many in our society and, as such, can be super alarming to a jury. And, the court must balance this recognition against any amount and kind of probative value to defendant resulting from the fact that the deceased victim was apparently identified on a terrorism watch list. When doing so, the court finds that any such probative value of this evidence for its tending to show whether the deceased victim had any aggressive/violent character is substantially outweighed by the danger that the prosecution would be unfairly prejudiced by the jury's hearing that the deceased victim was possibly a terrorist.
In the end, the court finds that the question is still excluded-albeit pursuant to MRE 403 [not MRE 404(a)(2)]-because its probative value to defendant is substantially outweighed by the danger of unfair prejudice to the prosecution. Also, the court's previous rulings and reasoning therefore with respect to the corresponding issues of mistrial and double jeopardy still stand. In turn, the court concludes that, for the reasons set forth above, the denial of the motion is continued and maintained.
Defendant now appeals.
II. STANDARD OF REVIEW
We review de novo a trial court's interpretation of a rule of evidence which is a question of law. People v Jackson, 498 Mich. 246, 257; 869 N.W.2d 253 (2015). A trial court's decision regarding the admissibility of evidence is reviewed for an abuse of discretion. People v Caddell, 332 Mich.App. 27, 69; 955 N.W.2d 488 (2020). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable and principled outcomes. People v Unger, 278 Mich.App. 210, 217; 749 N.W.2d 272 (2008). "[A] trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion." People v Hine, 467 Mich. 242, 250; 650 N.W.2d 659 (2002).
We review for an abuse of discretion a trial court's ruling on a motion for mistrial. People v Boshell, 337 Mich.App. 322, 335; 975 N.W.2d 72 (2021). The trial court's finding of manifest necessity requiring a retrial is reviewed for an abuse of discretion. People v Lett, 466 Mich. 206, 220; 644 N.W.2d 743 (2002). We review de novo a constitutional double-jeopardy challenge which is a question of law. Id. at 212. We review de novo the trial court's denial of defendant's motion to dismiss on the basis of double jeopardy. People v Davis, 472 Mich. 156, 159; 695 N.W.2d 45 (2005). In People v Beck, 510 Mich. 1, 14; 987 N.W.2d 1 (2022), our Supreme Court explained how we must review the trial court's decisions:
This Court accords considerable deference to a judge's determination of whether there is manifest necessity justifying declaration of a mistrial. To ensure that the trial court properly exercised its discretion, the reviewing court must consider the "particular facts" of the case. If a trial judge acts irrationally or irresponsibly, his action cannot be condoned. The ultimate question is not whether this Court would have found manifest necessity, but whether the trial court abused its discretion in finding manifest necessity. [Quotation marks, citations, and alterations omitted.]
III. ANALYSIS
Defendant argues that the trial court abused its discretion by denying his motion to dismiss and that the court's ruling subjects him to double jeopardy. We disagree.
The United States Constitution, U.S. Const, Am V, and the Michigan Constitution, Const 1963, art 1, § 15, "prohibit placing a defendant twice in jeopardy for the same offense." People v Ackah-Essien, 311 Mich.App. 13, 31; 874 N.W.2d 172 (2015). When a defendant is tried by a jury, jeopardy "attaches" when the jury is selected and sworn. People v Mehall, 454 Mich. 1, 4; 557 N.W.2d 110 (1997). Once the jury is impaneled, the defendant generally has a constitutional right to have his case completed and decided by that jury. People v Henry, 248 Mich.App. 313, 318; 639 N.W.2d 285 (2001). However, that rule "must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Lett, 466 Mich. at 215 (quotation marks and citations omitted). If a trial court declared a mistrial without the defendant's consent, retrial is generally allowed only if declaration of the mistrial was "manifestly necessary." People v Dawson, 431 Mich. 234, 252; 427 N.W.2d 886 (1988).
"The constitutional concept of manifest necessity does not require that a mistrial be 'necessary' in the strictest sense of the word. Rather, what is required is a 'high degree' of necessity." Lett, 466 Mich. at 218, citing Arizona v Washington, 434 U.S. 497, 506-507; 98 S.Ct. 824; 54 L.Ed.2d 717 (1978).
Manifest necessity is not a precisely defined concept and must be determined case by case. Manifest necessity appears to refer to the existence of sufficiently compelling circumstances that would otherwise deprive the defendant of a fair trial or make its completion impossible. Therefore, a trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. [People v Echavarria, 233 Mich.App. 356, 363; 592 N.W.2d 737 (1999) (quotation marks, citations, and alteration omitted).]
"Neither party has a right to have his case decided by a jury which may be tainted by bias; in these circumstances, the public's interest in fair trials designed to end in just judgments must prevail over the defendant's valued right to have his trial concluded before the first jury impaneled." Washington, 434 U.S. at 516 (quotation marks and citations omitted). A defendant's "valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury." Id. at 505. The prosecution "must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar." Id. The prosecution "must demonstrate 'manifest necessity' for any mistrial declared over the objection of the defendant." Id. Double jeopardy will not bar retrial if defense counsel's misconduct warrants a mistrial and not within the control of the prosecution or trial court. Dawson, 431 Mich. at 252 n 45.
A. THE EVIDENTIARY ISSUE
Whether the trial court properly declared a mistrial is a "threshold issue" that is "necessarily intertwined with the issue of determining whether double jeopardy bars retrial." Lett, 466 Mich. at 213. Defendant argues that defense counsel's question, "You know that he's a member of a terrorist organization-" aimed at eliciting admissible evidence regarding Khogaly's tendency to engage in aggressive, violent behavior, and therefore, relevant to defendant's claim of self-defense pursuant to MRE 404(a)(2). MRE 404 specifies the admissibility of character evidence in pertinent part as follows:
(a) Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution;
(2) When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor[.]MRE 405(a) permits evidence of a person's character in those circumstances in which character evidence is admissible: "In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." However, under MRE 405(b), evidence "of specific instances of [a] person's conduct" is only admissible when the "character or a trait of character of [that] person is an essential element of a charge, claim, or defense[.]"
In Harris, 458 Mich. 310, our Supreme Court analyzed the interplay of the evidence rules in homicide cases involving claims of self-defense, and distinguished between a defendant's use of character evidence for self-defense respecting the defendant's state of mind and use of character evidence to establish the violent character of the victim to show that the victim was the likely aggressor. The Court explained that a defendant's lack of knowledge of the victim's reputation or character for violence precludes use of such evidence to establish the defendant's state of mind in relation to the defense of the self-defense because the defendant's lack of knowledge of the victim's character could not affect the defendant's apprehensions. Id. at 315-317. The Court, however, concluded: "Because an important theory of defendant's case was self-defense, character evidence tending to show the victim's violent character should have been admitted to show (1) that the victim was the likely aggressor, and (2) the defendant acted out of self-defense." Id. at 320-321. The Court explained:
The actual violent character of the deceased, even though it is unknown to the defendant, is admissible as evidencing the deceased's probable aggression toward the defendant. It is now widely accepted that a defendant may show a pertinent trait of character of the alleged victim that bears on whether the victim committed an act of aggression on the particular occasion in conformity with that trait. This is so because, when a controversy arises regarding whether the deceased was the aggressor, a jury's persuasion may be affected by the character of the deceased because it will shed light on the probabilities of the deceased's action. The sole purpose for which evidence of this type is admissible is, from the victim's
general turbulent or violent character, to render more probable the evidence that tends to show an act of violence at the time he was killed.
[T]his probability is evidently not affected in the slightest degree by the defendant's previous knowledge. The light comes from the fact that the victim was the one who was apt or likely to do such an act as the one imputed to him, and not from the defendant's knowledge of the fact. [Quoting 1A Wigmore, Evidence (Tillers rev), § 63, p 1367.]
Because the question is what the victim probably did, not what the defendant probably thought the victim was doing, the additional element of communication to the defendant is unnecessary when using character evidence to prove the victim was the aggressor. The inquiry is one of objective occurrence, not of subjective belief.
In contrast, where a defendant charged with murder asserts that he killed in self-defense, his state of mind at the time of the act is material because it is an important element in determining his justification for his belief in an impending attack by the deceased. The reputation of the deceased for a violent or turbulent disposition is a circumstance that would cause such a belief. However, unlike evidence tending to show that the victim was the aggressor, the deceased's violent reputation must be known to the defendant if he is to use it to show that he acted in self-defense.... The purpose of this evidence is to show the defendant's state of mind; therefore, it is obvious that the victim's character, as affecting the defendant's apprehensions, must have become known to him, otherwise it is irrelevant. [Harris, 458 Mich. 315-317 (quotation marks, citations, and alterations omitted; emphasis added).]
In this case, the question posed by defense counsel based upon the remarks by law enforcement officers recorded on the dashcam video during their investigation of the incident was proper to the extent that it sought to elicit testimony from the witness to establish that the victim was the likely aggressor. Because defendant had no prior knowledge of Khogaly's character or reputation, defendant could not use the question to establish that Khogaly's character or reputation affected defendant's apprehensions as part of his proof of his theory of self-defense. Nevertheless, character evidence tending to show Khogaly's violent or aggressive character was admissible to demonstrate that he was the likely aggressor. Defense counsel's asking a leading question to a prosecution witness during cross-examination to elicit character evidence to establish that Khogaly was the likely aggressor, was not, in and of itself, improper. The question sought relevant testimony that may have assisted the jury in deciding the issue whether Khogaly was the likely aggressor. Store surveillance cameras recorded defendant's encounter with Khogaly and both videos were shown to the jurors. Reasonable jurors could interpret that evidence as demonstrating that Khogaly acted as the aggressor and circumstantial evidence of a character for aggression would serve to demonstrate that he was the likely aggressor.
We note the dashcam evidence was provided to the defense days before trial and that the witness who was asked the objected-to question was not endorsed as a witness until the fourth amended witness list was filed days before the trial and ten months after the death of Mr. Khogaly.
The inquiry, however, does not stop there. Although relevant and admissible, the trial court could exclude such evidence under MRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.
B. MANIFEST NECESSITY FOR A MISTRIAL AND MOTION TO DISMISS
The trial court did not abuse its discretion by concluding that a manifest necessity for a mistrial existed nor by denying defendant's motion to dismiss. The record reflects that the trial court conducted a sufficient inquiry during the two hearings that it held, first respecting the prosecution's motion for a mistrial, and second defendant's motion to dismiss. At the first hearing, the court made specific findings to support its determination that manifest necessity required declaring a mistrial in this case. The court appropriately heard arguments from both sides. The court properly considered the nature of the question posed by defense counsel and the impact such question could have on the fairness of the trial. The court did not err by concluding that the prospect of a fair trial had irreparably been compromised because the subject of terrorism could cause the jurors to be alarmed, kindle their passions, and inflame their emotions.
Defendant points out that the trial court made a mistake of law in its ruling on the prosecution's motion for a mistrial by stating that evidence of the character for aggression lacked admissibility under the rules of evidence. Although the trial court made such erroneous statement at that hearing, the record reflects that the court further considered its ruling and explained at the hearing on defendant's motion to dismiss that the additional research it conducted required the court to correct and amend its ruling.
The court explained that the question appeared to be posed to elicit evidence of a character for aggression which is admissible under Harris. The court, however, explained further that, even though relevant and admissible, such evidence did not pass muster because it should be excluded under MRE 403. The record indicates that the trial court articulated its analysis and rationale for exclusion of such evidence and the manner in which the question, once stated, affected the fairness of the trial requiring the declaration of a mistrial. We are not persuaded that the trial court abused its discretion by concluding that defense counsel's question tainted the proceeding and that no instruction to the jury could cure that.
Moreover, the testimony presented to the trial court during the motion for a mistrial supported the court's decision because it suggested that some of the jurors visibly reacted to defense counsel's question and may have been unable or unwilling to pay proper attention to the evidence, may have been distracted, and perhaps were unable thereafter to fulfill their duty to serve as impartial, unbiased jurors. Given the circumstances and evidence supporting the trial court's determination that a curative instruction would not alleviate the taint of defense counsel's question, the trial court did not abuse its discretion by granting the mistrial. Because the trial court exercised sound discretion when handling the problem of possible juror bias and potential prejudice resulting from the question, it did not err by concluding that manifest necessity required declaration of a mistrial. The trial court also cannot be said to have erred by finding that defense counsel and not the prosecution caused the mistrial. The trial court did not err by concluding that the prosecution met its burden of establishing manifest necessity for the mistrial declared over the objection of defendant. Accordingly, retrial is not barred by double jeopardy, and the trial court did not abuse its discretion by denying defendant's motion to dismiss.
Affirmed.
HOOD, P.J. (concurring)
I concur in the result. I agree with the bulk of the majority's analysis and conclusions, including its conclusion that MRE 403 prohibited the defense from asking whether the complainant was a member of a terrorist organization and its implications for the trial court's decision on the mistrial and double jeopardy. But I would also conclude that the trial court's initial decision regarding MRE 404(a)(2) was correct. Without more, MRE 404(a)(2) does not permit a party to use an individual's membership in a violent organization (whether a terrorist organization, gang, or other group with a reputation for violence) as a synecdoche for character for aggression. See People v Bynum, 496 Mich. 610; 852 N.W.2d 570 (2014); People v McGowan, unpublished per curiam opinion of the Court of Appeals, issued July 15, 2021 (Docket No. 351094). On this single aspect of the evidentiary issue, I disagree with the majority.
Though unpublished and thus nonbinding, we may still consider McGowan for its persuasiveness. People v Otto, Mich. App, n 11; N.W.2d (2023) (Docket No. 362161); slip op at 12 n 11.
The majority accurately describes the background of this case, a murder trial following defendant Marquon Leon Jackson shooting and killing Mozzaffer Khogaly, where self-defense is the central issue. Critically, three days before trial, the prosecution provided the defense with a dashcam video of Jackson's arrest, on which an officer stated: "I just ran the victim. He's . . . flagged as being part of a possible terrorist organization." At trial, when cross-examining Khogaly's cousin, a prosecution witness, the defense asked, "You know that he's a member of a terrorist organization-." Although there are obvious foundational issues with this evidence, the defense appears to have had a good-faith basis for asking the question. The trial court initially ruled that the defense could not ask about membership in a terrorist organization, but could ask if the cousin was aware of "any acts of aggression, violence, intimidation, and so forth." It later revisited its ruling and granted a prosecution motion for a mistrial.
It remains unclear what prompted the officer's comment. The record is silent on, and counsel for both sides appear unaware of, what the officer was looking at when he made the statement. Assuming the officer was reading a law enforcement database entry, it is unclear what database he was reading or the source or reliability of the information. Those issues are not presently before us.
Acknowledging that the trial court erred by indicating the defense could inquire into specific acts of aggression, violence, and intimidation, the trial court's initial ruling, excluding the defense's question about membership in a terror organization, was correct, and I would rely on it as a separate basis for affirming the outcome in this case. Put simply, membership in or allegiance to a violent or hateful group is not admissible under the portion of MRE 404(a)(2) that permits evidence of a victim's character for aggression.
The majority correctly identifies the standards of review. We review de novo the trial court's interpretation of the rules of evidence, and its decisions regarding the admissibility of evidence for an abuse of discretion. People v Jackson, 498 Mich. 246, 257; 869 N.W.2d 253 (2015). See also People v Hine, 467 Mich. 242, 250; 650 N.W.2d 659 (2002) ("[A] trial court's decision on a close evidentiary question ordinarily cannot be an abuse of discretion.").
MRE 404(a)(2)(B) is a niche rule that provides parties in a criminal case a unique mechanism for introducing character evidence related to victims, when self-defense is an issue. See MRE 404(a)(2); Harris, 458 Mich. at 318-319; 583 N.W.2d 680. In its relevant parts the rule provides:
Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) in a homicide case, when self-defense is an issue, the defendant may offer evidence of the alleged victim's trait for aggression, and if the evidence is admitted, the prosecution may:
(i) offer evidence of the defendant's same trait; and
(ii) offer evidence of the alleged victim's trait for peacefulness to rebut evidence that the alleged victim was the first aggressor[.] [MRE 404(a)(2)(A) and (B).
The Michigan Rules of Evidence were recently amended, effective January 1, 2024. The prior version of MRE 404(a)(2) was substantially the same. It provided:
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution;
(2) Character of Alleged Victim of Homicide. When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor[.]
As the majority correctly observes, this rule permits introduction of two types of evidence: (1) evidence of the victim's violent character to show that the victim was the likely aggressor, and (2) evidence of the victim's violent character to show that the defendant acted out of self-defense. Harris, 458 Mich. at 320-321. Only one of these is at issue here. Because Jackson did not know Khogaly, evidence of Khogaly's violent character could not bear on self-defense, as Jackson did not know him or his reputation. But it could bear on whether Khogaly was the first aggressor. Regarding this subset of 404(a)(2) evidence, this Court has explained that specific incidents of conduct are not admissible to demonstrate a victim is the first aggressor:
Evidence concerning the aggressive character of a homicide victim, even if the defendant was unaware of it at the time, is admissible in furtherance of a selfdefense claim to prove that the victim was the probable aggressor. However, this type of character evidence may only be admitted in the form of reputation testimony, not by testimony regarding specific instances of conduct unless the testimony regarding those instances is independently admissible for some other reason or where character is an essential element of a claim or defense. The victim's character is not an essential element of defendant's self-defense claim. [People v Orlewicz, 293 Mich.App. 96, 104, 809 N.W.2d 194 (2011), remanded on other grounds by 493 Mich. 916, 823 N.W.2d 428 (2012) (citations omitted).]
Further, the first-aggressor prong of MRE 404(a)(2) permits evidence of the victim's character, not evidence of an entire group. Cf. People v Bynum, 496 Mich. 610, 627; 852 N.W.2d 570 (2014) (interpreting MRE 404(a)(1) and holding that under MRE 404(a)" an expert may not testify that, on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members.").
I would conclude that without more, evidence of Khogaly's membership in a violent group is inadmissible under MRE 404(a)(2) for three reasons: (1) precedent from our Supreme Court suggests this is the correct approach, see Bynum, 496 Mich. at 623-631; (2) in unpublished but persuasive opinions, this Court has interpreted MRE 404(a)(2) as excluding such evidence, see, e.g., People v McGowan, unpub op at 7-8 (relying on Bynum to hold that MRE 404(a)(2) precluded evidence that victim was a member of a gang known to be especially violent and, therefore, the victim acted in conformity with this violence on the day in question); and (3) using group membership as evidence of individual character for violence runs afoul of the lodestar of the Michigan Rules of Evidence: reliability.
Our Supreme Court has held that group membership is inadmissible as character evidence under MRE 404(a). See Bynum, 496 Mich. at 623-631. In People v Bynum, our Supreme Court held that MRE 404(a) barred the prosecution from introducing evidence of a defendant's gang membership to prove that he acted in conformity with traits commonly associated with gang members. Id. During a trial for first-degree murder and other shooting-related charges, the prosecution introduced expert testimony on the subject of gangs, gang membership, and gang culture, including expertise about local gangs. Id. at 618. The Court held that while expert testimony on gang culture generally was admissible, the witness "veered into objectionable territory when he opined that Bynum had acted in conformity with his gang membership with regard to the specific crimes in question." Id. at 630-631. Specifically, using the gang membership and the character traits associated therewith to describe what the expert saw on the surveillance video was violative of MRE 404(a). See id.
Although Bynum has several differences from this case, most notably that it analyzed the general provisions of MRE 404(a), rather than the specifics of MRE 404(a)(2), its reasoning is sound and applicable to this case. Just as the Bynum Court excluded evidence of a gang's character to show that a gang member acted in conformity with that character during a given incident, I would conclude that evidence of Khogaly's membership in a terror organization (or any violent organization) is not evidence of Khogaly's individual character, let alone conduct in conformity with that character that would suggest he was the first aggressor.
Bynum dealt with the general prohibitions on character evidence under MRE 404(a), not the carveout provided in MRE 404(a)(2). Further, Bynum addressed the issue through the lens of expert testimony, which is not at issue in this case. Despite these differences, the underlying principle that group character is not evidence of individual character or conduct in conformity with group character on a given day, is sound.
At least one unpublished case from this Court has reached the same conclusion that MRE 404(a)(2) does not permit offering group membership as evidence of character for violence or aggression. McGowan, unpub op at 7-8. See also People v Hawkins, unpublished per curiam opinion of the Court of Appeals, issued March 30, 1999 (Docket No. 203832), pp 3-4 (affirming trial court decision to exclude testimony that the victim had acted in conformity with a known character trait: carrying a gun; citing approvingly State v Zamora, 140 Ariz 338; 681 P.2d 921 (App, 1984)). In McGowan, this Court affirmed the trial court's decision that evidence of the victim's gang affiliation was not admissible under MRE 404(a)(2). McGowan, unpub op at 7-9. There, the defendant appealed his convictions for second-degree murder and other charges stemming from a shooting death. Id. at 1-2. Prior to trial, the court granted the prosecution's motion in limine to exclude evidence of the victim's involvement in a local gang with a reputation for violence. Id. at 2. This Court affirmed the trial court's finding, relying on Bynum's holding that evidence of gang membership "creates the risk that a jury will reach the impermissible conclusion that a person 'acted in conformity with [his] gang membership with regard to the specific crimes in question.'" Id. at 8, citing Bynum, 496 Mich. at 630-631 (alteration in McGowan). In McGowan, we further observed that the defendant seemingly wanted to "introduce evidence of the victim's gang affiliation for this exact purpose-to demonstrate that the victim was a member of the Zone 8 gang and Zone 8 members are known to be especially violent-and, therefore, the victim acted in conformity with this violence on the day in question." McGowan, unpub op at 8. We concluded that the trial court correctly recognized this problem and excluded any reference to the victim's gang membership. Id. at 8-9.
In People v Hawkins, we affirmed the trial court's exclusion of testimony that the victim acted in conformity with a known character trait: carrying a gun. Hawkins, unpub op at 3-4. We ultimately held "that carrying a gun may be evidence of an underlying character trait, but is not a character trait itself," finding it more akin to acts or habit. Id. at 4. In reaching this conclusion, this Court acknowledged the dearth of case law in this area and relied on State v Zamora, an Arizona Court of Appeals case, as persuasive authority. Id., citing Zamora, 140 Ariz at 338. There, the court upheld the exclusion of evidence of the victim's gang membership under the Arizona counterpart to MRE 404(a)(2), concluding that such evidence "was not relevant to whether the victim had an aggressive character, and that such evidence would be properly classified as prior acts rather than as a character triat." Hawkins, unpub op at 4, citing Zamora, 140 Ariz at 341.
This reasoning from Bynum, which dealt with the general provisions of MRE 404(a), and McGowan, which dealt with group membership under MRE 404(a)(2), is sound and applicable to this case, where Jackson seeks not to admit evidence of Khogaly's gang affiliation, but rather, his membership in a terror organization. When considering the admissibility of the defense's question ("You know that he's a member of a terrorist organization") or even a question tailored more closely to the statement on the dashcam recording (i.e., "[H]e's flagged as being part of a possible terrorist organization"), we must consider the purpose for which it is offered. MRE 404(a) and Bynum indicates that such questioning is prohibited under MRE 404(a), and McGowan persuades me that such questioning is also prohibited under MRE 404(a)(2), whether the line of questioning expected direct evidence of character for violence, or was a foundational question leading to evidence of character for violence.
First, if the question was not foundational, but rather direct evidence of character for violence or aggression, the questioning and related inferences are too attenuated to fit within the niche exception to prohibitions on character evidence that MRE 404(a)(2) provides. On its own the question invites a juror to conclude (1) that all terrorist organizations are violent (a reasonable enough inference if we put aside that we still do not know what "possible terrorist organization" Khogaly was "flagged" as being a part of); (2) that an organization imbues any member with the character of the organization; (3) that Khogaly's membership in a possible terrorist organization imbued him with a character for violence; and (4) that once imbued with a character for violence associated with the organization, he likely was the aggressor with Jackson on the day Jackson shot him. Bynum prohibits this sort of derivative character evidence, and I would read that prohibition as extending to MRE 404(a)(2) as we did in McGowan.
Second, if the question was merely foundational-a lead-up to questions about Khogaly's individual character-then it was completely unnecessary. The defense did not need to establish Khogaly's membership in a suspected terrorist organization in order to ask his cousin whether Khogaly individually had a violent character. Counsel could have just asked the question. Without more, defense counsel's questions were unnecessary or irrelevant to the issue of character.
I acknowledge the possibility that there may be cases where one's group membership or adherence to hateful or violent ideology may be otherwise relevant and admissible. For example, if there were other evidence that the confrontation in this case was a result of Khogaly acting based on ideology related to a terrorist organization (i.e., an Islamic terrorist engaging in an act of violence for purported religious motivations, or a Klansman engaging in an act of violence based on race), such evidence may be admissible under other provisions within the Michigan Rules of Evidence. It is not admissible under MRE 404(a)(2).
Finally, the admissibility of this line of questioning tests the limits of the fundamental function of our rules of evidence: reliability. See People v King, 297 Mich.App. 465, 474; 824 N.W.2d 258 (2012) (noting that Michigan's rules of evidence are "designed to assure both fairness and reliability in the ascertainment of guilt and innocence") (quotation marks and citations omitted). Put simply, whether Khogaly was a member of a terror organization has limited bearing on his individual character for violence let alone his conduct in conformity with that character on the day of his killing.
I would conclude that the trial court's initial determination, that this line of questioning was impermissible, was correct. I would affirm for this reason in addition to the majority's analysis of MRE 403, with which I agree.
MALDONADO, J. (concurring)
I concur in the outcome, but I disagree with how the lead opinion reached it. In my opinion, defense counsel's question was inappropriate from its inception because defendant did not know anything about Khogaly's background. This case hinges entirely on defendant's state of mind, and information defendant did not know was wholly irrelevant to his state of mind. This case revolves around whether defendant believed he was in danger, the reasonableness of this belief, and whether his actions were a reasonable response to his perceived danger. This is a subjective inquiry, so the focus must be on the information that was available to defendant at that time. Because there is no indication that Khogaly committed an act of aggression, this case does not fall into the category of cases in which evidence of a character trait of aggression is admissible.
Finally, I also write separately to address what I view as a double standard regarding the adequacy of jury instructions as a curative measure. Simply put, if curative instructions are adequate to address circumstances unfair to defendants, they should also be viewed as adequate to address circumstances unfair to prosecutors.
HARRIS AND THE DISTINCTION BETWEEN A SUBJECTIVE CLAIM OF SELFDEFENSE AND AN OBJECTIVE ACT OF AGGRESSION
The general rule is that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]" MRE 404(a). This rule, however, is subject to certain exceptions. Particularly relevant to this case is MRE 404(a)(2), which, in pertinent part, provides: "When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused" is admissible. A separate rule, MRE 405, deals with permissible ways to introduce evidence of a person's character in those circumstances in which character evidence is admissible. MRE 405(a) provides that "[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion." However, pursuant to MRE 405(b), evidence "of specific instances of [a] person's conduct" is only admissible when the "character or a trait of character of [that] person is an essential element of a charge, claim, or defense[.]"
In People v Harris, our Supreme Court provided an in-depth explanation regarding the interplay of those rules of evidence in homicide cases involving claims of self-defense. Harris, 458 Mich. at 315-316. In particular, the Supreme Court analyzed whether the defendant must have known of the victim's character for aggression in order for it to be admissible. Id. When undertaking this analysis, the Court distinguished cases in which the defendant alleged that the victim was the first aggressor from cases in which the defendant alleged self-defense:
The actual violent character of the deceased, even though it is unknown to the defendant, is admissible as evidencing the deceased's probable aggression toward the defendant. It is now widely accepted that a defendant may show a pertinent trait of character of the alleged victim that bears on whether the victim committed an act of aggression on the particular occasion in conformity with that trait. This is so because, when a controversy arises regarding whether the deceased was the aggressor, a jury's persuasion may be affected by the character of the deceased because it will shed light on the probabilities of the deceased's action. The sole purpose for which evidence of this type is admissible is, from the victim's general turbulent or violent character, to render more probable the evidence that tends to show an act of violence at the time he was killed. This probability is evidently not affected in the slightest degree by the defendant's previous knowledge. The light comes from the fact that the victim was the one who was apt or likely to do such an act as the one imputed to him, and not from the defendant's knowledge of the fact.
Because the question is what the victim probably did, not what the defendant probably thought the victim was doing, the additional element of communication to the defendant is unnecessary when using character evidence to prove the victim was the aggressor. The inquiry is one of objective occurrence, not of subjective belief.
In contrast, where a defendant charged with murder asserts that he killed in self-defense, his state of mind at the time of the act is material because it is an important element in determining his justification for his belief in an impending attack by the deceased. The reputation of the deceased for a violent or turbulent disposition is a circumstance that would cause such a belief. However, unlike evidence tending to show that the victim was the aggressor, the deceased 's violent reputation must be known to the defendant if he is to use it to show that he acted in self-defense.... The purpose of this evidence is to show the defendant's state of mind; therefore, it is obvious that the victim's character, as affecting the defendant's apprehensions, must have become known to him, otherwise it is irrelevant. [Harris, 458 Mich. 315-317 (quotation marks, citations, and alterations omitted; emphasis added).]
In People v Edwards, 328 Mich.App. 29, 35-36; 935 N.W.2d 419 (2019), this Court expanded on the Supreme Court's reasoning in Harris:
[E]vidence of a victim's aggressive character is admissible in the form of reputation evidence, even if the defendant does not have knowledge of the decedent's character, to show that the decedent was the probable aggressor. With that said, evidence of the decedent's reputation that is not known to the defendant is inadmissible to prove an essential element of self-defense, e.g., a reasonable apprehension of harm. [Id. at 36-37.]
In sum, whether the defendant in a homicide case must have known about the alleged victim's character trait of aggression depends on the nature of the defense. If the defendant's stance at trial is that the defendant acted in response to an actual act of aggression taken by the alleged victim and if there is a dispute regarding whether the alleged victim actually did make an act of aggression, then the defendant need not have known about the character trait. This is because the defendant's state of mind is irrelevant to whether the alleged victim actually took an objective action. For example, if a hypothetical defendant argues that he shot the victim because the victim first shot at him and then introduces the character evidence for the purpose of proving that the victim actually did shoot at the defendant, the defendant's knowledge of the character trait is irrelevant.
In this case, defendant's entire encounter with the alleged victim was captured by security cameras. Thus, we know with absolute certainty that the alleged victim did not make an act of aggression immediately before being shot. Indeed, with the benefit of hindsight, we know that defendant did not need to shoot the victim at all because the victim did not have a gun on his person or in his vehicle. Accordingly, defendant's case revolves entirely on defendant's subjective state of mind and whether he reasonably believed he was in mortal danger; there are no objective actions taken by the alleged victim that are at issue. According to defendant, because the victim engaged in disorderly behavior in the store, made comments possibly implying a desire to harm defendant, and reached into his car in a manner consistent with grabbing a gun, defendant reasonably believed that he was justified in shooting the alleged victim. Because defendant did not know that the alleged victim was supposedly on some sort of a terrorist list, this evidence was not relevant for assessing "his justification for his belief in an impending attack by the deceased." Harris, 458 Mich. at 316.
The lead opinion articulated the above-quoted language from Harris, but it did not apply it. In Harris, the Supreme Court made it clear that "[t]he sole purpose for which evidence" of the alleged victim's violent character may be admitted is "to show an act of violence." Harris, 458 Mich. at 316 (emphasis added). What is the "act of violence" that was "imputed to" Khogaly by the defense? Id. (quotation marks and citation omitted). The lead opinion did not identify one. Indeed, this is a rare case in which we know exactly what happened, and we therefore know that Khogaly did not commit an act of violence. What we do not know, and the reason there will be a trial, is whether defendant reasonably believed Khogaly was going to commit an act of violence if defendant did not intervene. This is a case in which the evidence has been offered by defendant as "justification for his belief in an impending attack by the deceased," so "it is obvious that [Khogaly's] character, as affecting the defendant's apprehensions, must have become known to him, otherwise it is irrelevant." Id. at 317.
Because the issue in this case is "defendant's state of mind," not the actions of the alleged victim, evidence of Khogaly's character was only admissible if defendant knew about it. Id. It is undisputed that defendant did not know anything about any possible terrorist connections of the alleged victim, and this evidence is therefore irrelevant and inadmissible. Id.
CURATIVE INSTRUCTIONS
In the world of appellate review, curative instructions reign supreme. Mistake after mistake is brushed to the side with the familiar refrain, "Jurors are presumed to follow their instructions." People v Horton, 341 Mich.App. 397, 405; 989 N.W.2d 885 (2022). Our appellate system affords instructions so much weight that unpreserved claims of prosecutorial misconduct only warrant reversal if a curative instruction would have been insufficient to alleviate the harm caused by the misconduct. People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008). However, when it is the defense that makes a mistake, jury instructions suddenly carry less weight. In this case, as the preceding analysis makes clear, I believe defense counsel's question was inappropriate. However, if the shoe was on the other foot, this fire would have been extinguished with a curative instruction. Given the deference our caselaw demands be given to jury instructions, I do not understand why defense counsel's mistake warranted a mistrial instead of a curative instruction. I do not believe that a mistrial should have been declared or that a new trial should be conducted. However, I fully recognize that the law in this regard does not comport with my beliefs. Therefore, I do agree with the lead opinion's conclusions regarding the double jeopardy issue.