Opinion
No. 330750
02-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DANTE JEROME SCOTT, Defendant-Appellant.
UNPUBLISHED Muskegon Circuit Court
LC No. 15-066051-FH Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ. PER CURIAM.
Defendant was convicted by a jury of witness intimidation involving committing or attempting to commit a crime, MCL 750.122(7)(c), and aggravated domestic assault, second offense, MCL 750.81a(3). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 8 to 25 years' imprisonment for his witness intimidation conviction and 4 to 20 years' imprisonment for his aggravated domestic assault conviction, with the sentences to run concurrently with credit for 243 days served. Defendant now appeals as of right. We affirm.
Defendant first argues that the trial court abused its discretion by excluding the testimony of an alibi witness, denying defendant his state and federal constitutional right to present a defense. We disagree.
Defendant preserved this issue for appeal by requesting to call Curtis Johnson as an alibi witness at trial and informing the trial court of the substance of Johnson's testimony. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007); MRE 103(a)(2). A trial court's decision regarding whether to allow or exclude an alibi witness when the notice of that witness is untimely is reviewed for an abuse of discretion. People v Travis, 443 Mich 668, 679-680; 505 NW2d 563 (1993). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008).
MRE 103(a) states:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
The notice requirements for a defendant offering an alibi defense are found in MCL 768.20, which states in relevant part:
(1) If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant's attorney, the names of witnesses to be called in behalf of the defendant to establish that defense. The defendant's notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.The consequence of failing to follow the alibi notice requirements are found in MCL 768.21(1), which provides in relevant part:
* * *
(3) Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this section. Upon motion with notice to the other party and upon a showing by the moving party that the name of an additional witness was not available when the notice required by subsections (1) or (2) was filed and could not have been available by the exercise of due diligence, the additional witness may be called by the moving party to testify as a witness for the purpose of establishing or rebutting an alibi defense. [Emphasis added.]
If the defendant fails to file and serve the written notice prescribed in section 20 . . . , the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi . . . of the defendant. If the notice given by the
defendant does not state, as particularly as is known to the defendant or the defendant's attorney, the name of a witness to be called in behalf of the defendant to establish a defense specified in section 20 . . . , the court shall exclude the testimony of a witness which is offered by the defendant for the purpose of establishing that defense.
"It is clear that under Michigan law a trial judge has discretion to determine whether to grant a continuance instead of applying the preclusion sanction." People v Merritt, 396 Mich 67, 79; 238 NW2d 31 (1976). The trial court has "broad discretion" in determining whether to exclude alibi evidence due to late notice. Id. at 79-80. However, "[t]he preclusion sanction is an extremely severe one, and the judge's discretion in exercising preclusion should be limited only to an egregious case." Id. at 82.
The Michigan Supreme Court concluded in Merritt, 396 Mich at 88-89, that "[e]vidence of alibi was improperly precluded . . . where neither egregious fault by defendant nor prejudice to the people's case was shown." In Merritt, defense counsel filed the notice of alibi on the first day of trial because he had been unable to investigate the alibi witnesses sooner due to his own illness, even though he had been informed by defendant about the alibi witnesses two weeks before trial. Id. at 71. Defense counsel's motion to adjourn was denied, and the trial court did not allow defendant to testify about an alibi defense or to present alibi witnesses. Id. at 71, 72-74. On appeal, the Michigan Supreme Court noted, "Defendant has a right to have compulsory process for obtaining witnesses in his favor, US Const, Am VI; Const 1963, art 1, § 20, and the judge's choice to invoke preclusion rather than grant a continuance jeopardizes that right." Id. at 81-82. The Merritt Court explained that whether precluding alibi testimony was appropriate "varies with the facts of each case, and must inevitably involve a weighing of the competing interests involved." Id. at 82. The Court stated that the issues to be considered with respect to the preclusion sanction are whether "the possible risks of false testimony and the interruption in the orderly administration of justice justify this intrusion on defendant's right." Id. at 82-83. The Court stated, "Clearly, it would be improper to exclude the defense where neither serious abuse of the right on the part of defendant nor prejudice to the people's case have been demonstrated." Id. at 82.
Additionally, the Michigan Supreme Court has explained that the preclusion sanction in MCL 768.21, for failing to comply with the notice provisions of MCL 768.20, is discretionary rather than mandatory. Travis, 443 Mich at 677-680. In Travis, 443 Mich at 681-682, the Michigan Supreme Court set forth the following factors to be considered when reviewing a trial court's discretionary decision in this context:
"In determining how to exercise its discretionary power to exclude the testimony of undisclosed witnesses . . . a district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant's guilt, and (5) other relevant factors arising out of the circumstances of the case." [Quoting United States v Myers, 550 F2d 1036, 1043 (CA 5, 1977) (alteration in original).]The Travis Court held "that the Myers test provides an appropriate standard by which to judge the exercise of discretion vested in the trial court by our notice-of-alibi statute." Id. at 682-683.
Here, defense counsel sought to add Johnson as an alibi witness on the first day of trial, claiming that defendant had a telephone conversation with Johnson at approximately 5:00 a.m., while the assault was alleged to have occurred at approximately 4:50 a.m. There is no dispute that the notice of Johnson as an alibi witness was untimely, although there was no objection to defendant's previously filed notice of alibi that included other witnesses who actually testified at trial. MCL 768.20(1). The trial court was not required to exclude Johnson's testimony, and it clearly recognized the discretion that it had in this respect by giving careful consideration to whether it should allow Johnson to testify despite the untimely notice. See Travis, 443 Mich at 677-680, 681-683. While the trial court did not specifically cite Travis or the factors of the Meyers test, we apply the Meyers test to review the trial court's decision to exclude an alibi witness. Travis, 443 Mich at 682-683.
With respect to the first factor of the Meyers test, it was only one day before trial when defense counsel learned that Johnson allegedly had a telephone conversation with defendant at approximately the same time that the March 5, 2015 assault was alleged to have occurred. Defense counsel notified the prosecutor of the additional alibi witness on the day before trial, and Johnson was made available to the prosecution on the morning of trial. As the prosecutor argued in the trial court, an investigation of the relevant telephone records would have been important to cross-examining Johnson and testing the veracity of his testimony had he been allowed to testify. However, the records could not be obtained soon enough to be used during the course of this two-day trial. Given this late disclosure, the fact that the alibi testimony involved a telephone call that could easily be verified or refuted with telephone records, and the unavailability of those records on such short notice, the prosecution would have been severely prejudiced if the trial court had allowed Johnson to testify because it would have been without the ability to test the factual basis of Johnson's claims as a result of the delayed disclosure. Id. at 682.
With respect to the second factor, although defense counsel notified the prosecutor as soon as she was aware of Johnson as an additional alibi witness and the trial court recognized that the late disclosure was not defense counsel's fault, the fact remains that defendant would have been aware that he spoke to Johnson that morning and should have informed defense counsel sooner. Given the fact that defense counsel filed a timely notice of alibi that named other witnesses who testified during the trial, there is no reason that defendant could not have also informed defense counsel about Johnson so that he could have been included on the list of alibi witnesses. On appeal, defendant does not provide any explanation for his failure to make defense counsel aware of Johnson's potential alibi testimony sooner. Thus, there was no reason justifying the late disclosure. Id.
With respect to the third factor, defense counsel argued below that the prosecution could have sought a subpoena before trial for the telephone records for Terry Scott, defendant's uncle and the person whose telephone defendant allegedly used for his conversation with Johnson. Defense counsel's argument was based on the fact that the prosecution already had text messages from Terry's cellular telephone. However, as the prosecutor argued in the trial court, there clearly was no reason to secure records of telephone calls made on the morning of March 5, 2015, without an allegation that a telephone call occurred during that time on Terry's cellular telephone, and there was no such allegation until the day before trial. Therefore, no mitigating circumstances existed to diminish the harm to the prosecution from the untimely disclosure. Id.
With respect to the fourth factor, the victim testified that she had been in a relationship with defendant for over seven years and that defendant was the person who assaulted her in her car on March 5, 2015. Thus, the evidence against defendant that was admitted at trial was strong. Id. There do not appear to be any other factors to consider in the analysis in this case. Id.
The trial court's decision was based on similar considerations, and it clearly balanced the interests of both parties in reaching its decision. It considered the prejudice to the prosecution of not having the telephone records available for cross-examining Johnson and whether that disadvantage could be cured by other means. The trial court concluded that there was not a sufficient cure available and precluded Johnson from testifying. Unlike Merritt, there was no legitimate excuse for the late disclosure of Johnson as an alibi witness. See Merritt, 396 Mich at 71, 82, 88-89. In light of the Meyers factors, the trial court did not abuse its discretion by excluding Johnson's testimony. Travis, 443 Mich at 681-683.
To the extent that defendant makes a constitutional argument on appeal based on the exclusion of Johnson, this issue is unpreserved because defendant did not raise this argument in the trial court as a ground for admitting Johnson's testimony. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993). Moreover, defendant has not provided any authority to support this argument and has not made any attempt to show how the exclusion of his alibi witness under the notice-of-alibi statute prevented him from presenting a defense. "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." People v King, 297 Mich App 465, 474; 824 NW2d 258 (2012) (quotation marks and citation omitted).
Next, defendant argues that the trial court denied defendant his state and federal constitutional rights to confront witnesses against him and present a defense by preventing him from impeaching the victim, Deltrona Allen, with her prior inconsistent statements regarding the nature of her relationship with defendant and her current address. We disagree.
Although defendant does not frame his appellate argument precisely, it appears that defendant attempts to raise both an evidentiary challenge and a separate constitutional challenge, with both claims of error being predicated on two instances where alleged impeachment evidence was excluded.
Defendant preserved the evidentiary challenges for appeal because the substance of the excluded statement regarding the nature of the victim's relationship with defendant "was apparent from the context within which the questions were asked" and because defense counsel made an offer of proof with respect to the alleged inconsistency between the victim's current address and the address on her medical records. MRE 103(a)(2); see also People v Snyder, 462 Mich 38, 42-44; 609 NW2d 831 (2000). To the extent that defendant makes a constitutional argument on appeal based on Confrontation Clause grounds, this issue is unpreserved because defendant did not raise this argument in the trial court as a ground for admissibility of the impeachment evidence. Stimage, 202 Mich App at 30.
This Court "review[s] for abuse of discretion a trial court's decision to admit or exclude evidence." People v Herndon, 246 Mich App 371, 406; 633 NW2d 376 (2001). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Unger, 278 Mich App at 217. De novo review applies to a "trial court's rulings on preliminary questions of law regarding the admissibility of evidence, such as the application of a statute or rule of evidence." King, 297 Mich App at 472. "A preserved trial error in admitting or excluding evidence is not grounds for reversal unless, after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative." Id.
"Whether a defendant was deprived of his constitutional right to present a defense is reviewed de novo." People v Bosca, 310 Mich App 1, 47; 871 NW2d 307 (2015). "Preserved nonstructural trial error of constitutional magnitude will not merit reversal if it is harmless beyond a reasonable doubt." King, 297 Mich App at 472. A Confrontation Clause violation is considered a nonstructural error. People v Buie, 285 Mich App 401, 407; 775 NW2d 817 (2009). This Court "review[s] unpreserved claims of nonstructural, constitutional error for plain error." Id. On plain-error review, the defendant has the burden to show (1) "error"; (2) that was "plain," meaning "clear or obvious"; (3) and that affected substantial rights or caused prejudice, meaning "that the error affected the outcome of the lower court proceedings." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Turning first to defendant's evidentiary challenge, MRE 611(c) defines the scope of cross-examination and states:
A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. The judge may limit cross-examination with respect to matters not testified to on direct examination.MRE 613(a) provides that "[i]n examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request it shall be shown or disclosed to opposing counsel and the witness." "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court," and "[e]vidence which is not relevant is not admissible." MRE 402. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. "[E]vidence is relevant when it affects the credibility of the victim and when it affects the credibility of witnesses who enhance the victim's credibility." King, 297 Mich App at 476-477. "One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify, or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the credibility of the witness." People v Salimone, 265 Mich 486, 499-500; 251 NW 594 (1933). "Inconsistent out-of-court statements of a witness are admissible only for impeachment purposes and, since they would otherwise be hearsay, cannot be used as substantive evidence of the truth of the matter asserted." People v Kohler, 113 Mich App 594, 599; 318 NW2d 481 (1981).
Here, defendant contends that he should have been allowed to impeach the credibility of the victim with evidence that defendant was referred to as a "former friend" rather than an ex-boyfriend when the victim made the police report for an earlier assault. Defendant also contends that he should have been allowed to impeach the credibility of the victim with evidence that the address in her medical records for the March 5, 2015 assault was inconsistent with her actual current address. Inconsistencies in a witness's statements could show a lack of credibility. Thus, the prior statements could potentially be considered relevant and admissible for impeachment purposes. See MRE 611(c); MRE 613(a); MRE 401; Salimone, 265 Mich at 499-500; King, 297 Mich App at 476-477.
However, it is arguable whether the victim in the instant case actually made prior statements that were inconsistent with her trial testimony. First, with respect to the "former friend" statement, defense counsel's question was, "Would you be surprised the police officer referred to him as a former friend?" (emphasis added). It is not clear that the victim made this statement at all. Moreover, the victim consistently testified that defendant was her ex-boyfriend during the events underlying the instant case. Furthermore, it is also not clear that "ex-boyfriend" and "former friend" are necessarily inconsistent with each other in any event. Second, with respect to the discrepancy with the victim's address in her medical records, the victim testified during the offer of proof that she gave the hospital her current address, that she was not asked for her current address at the emergency room, and that she did not know why the records were not properly updated. The trial court found that there was no evidence of a lie by the victim. While the trial court phrased its finding in terms of whether the victim lied, it appears that this was because defense counsel specifically stated that the purpose for introducing the address discrepancies was to show that the victim had lied. Yet, the testimony could just as reasonably be understood as showing that the victim never made an inconsistent statement and that a clerical error was made at some point. Therefore, the trial court's decisions to preclude defense counsel from asking these questions do not appear to "fall outside the range of reasonable and principled outcomes," especially considering that these decisions did not otherwise prevent defense counsel from thoroughly cross-examining the victim about her relationship with defendant and what occurred on the morning of the alleged assault. See Unger, 278 Mich App at 217. The trial court did not abuse its discretion. Herndon, 246 Mich App at 406.
Nonetheless, even if this evidence is considered admissible impeachment evidence, any error was harmless. Under the harmless-error rule of MCL 769.26, there is a presumption "that a preserved, nonconstitutional error is not a ground for reversal unless 'after an examination of the entire cause, it shall affirmatively appear' that it is more probable than not that the error was outcome determinative." People v Lukity, 460 Mich 484, 491, 495-496; 596 NW2d 607 (1999), quoting MCL 769.26. "Evidentiary errors are nonconstitutional." People v Blackmon, 280 Mich App 253, 259; 761 NW2d 172 (2008). When evaluating whether an error was harmless, "the effect of the error is evaluated by assessing it in the context of the untainted evidence to determine whether it is more probable than not that a different outcome would have resulted without the error." Lukity, 460 Mich at 495. It is the defendant's burden to demonstrate that the asserted error "has resulted in a miscarriage of justice." Id. (quotation marks and citation omitted).
MCL 769.26 states:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.--------
Here, the victim consistently maintained that defendant was her ex-boyfriend, and she unequivocally testified that defendant assaulted her on the morning of March 5, 2015, after she indicated that she would testify against him in the previous assault case. It does not appear more probable than not that the admission of the statement referring to defendant as a former friend could have affected the jury's perception of the victim's credibility to such a degree that the verdict would have been different. See id. at 491, 495-496. Likewise, it does not appear more probable than not that the mere fact that the victim's medical records showed her previous address rather than her current address would have impacted the outcome of the trial had this fact been presented to the jury. See id. In light of the victim's testimony that she previously lived at the address shown in her medical records and that she gave the hospital her new address or was not asked about her current address, it does not seem likely that such a discrepancy would have had any significant impact on the jury's view of the victim's credibility, much less an outcome determinative impact. Defendant has failed to show that any error "has resulted in a miscarriage of justice." Id. at 495.
Turning next to defendant's unpreserved constitutional argument, "[t]here is no doubt that based on the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process or Confrontation Clauses, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." King, 297 Mich App at 473 (quotation marks and citation omitted). "A primary interest secured by the Confrontation Clause is the right of cross-examination." People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993), citing Delaware v Van Arsdall, 475 US 673, 678; 106 S Ct 1431; 89 L Ed 2d 674 (1986); Douglas v Alabama, 380 US 415, 418; 85 S Ct 1074; 13 L Ed 2d 934 (1965). But "neither the Confrontation Clause nor due process confers an unlimited right to admit all relevant evidence or cross-examine on any subject." Adamski, 198 Mich App at 138. While defendants are entitled to "a reasonable opportunity to test the truth of a witness' testimony," id., the trial court nonetheless " 'retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant,' " id., quoting Van Arsdall, 475 US at 679. The United States Supreme Court has explained that restrictions on the scope of cross-examination can implicate the Confrontation Clause, where "although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Delaware v Fensterer, 474 US 15, 18-19; 106 S Ct 292; 88 L Ed 2d 15 (1985) (quotation marks and citation omitted). In such cases, "Confrontation Clause questions will arise because such restrictions may 'effectively . . . emasculate the right of cross-examination itself.' " Id. (citation omitted).
In Adamski, 198 Mich App at 134, 136-137, 141, this Court reversed a defendant's first-degree criminal sexual conduct conviction where the trial court precluded the defendant from impeaching the complainant with her prior inconsistent statement to a mental health therapist. In her statement to the therapist, the complainant indicated that the defendant had never acted in an inappropriately sexual manner with her, which contradicted her trial testimony. Id. at 136. The Adamski Court found "that the complainant's prior inconsistent statements to her counselor were admissible for impeachment despite the bar of the statutory [psychologist-patient] privilege" because "common-law or statutory privileges, even if purportedly absolute, may give way when in conflict with the constitutional right of cross-examination." Id. at 136, 137. The Court determined that "[t]he failure of the trial court to allow defendant to cross-examine the complainant, at least with regard to her statement that defendant had not acted inappropriately with her, denied defendant his Sixth Amendment right of confrontation by limiting cross-examination." Id. at 137-138. Furthermore, the Court concluded that the error was not harmless. Id. at 141. The Court noted the central importance of the complainant's testimony to the prosecution's case, that the complainant's testimony "was not corroborated by any witnesses or physical evidence," and that the case was essentially a credibility contest between the complainant and defendant. Id. at 140. The Court reasoned that "[t]he excluded prior inconsistent statement's probative value with regard to the complainant's credibility went beyond a tendency to show bias or ulterior motive—it called into question the veracity of the bulk of the complainant's inculpatory testimony." Id. at 141.
Here, unlike the situation Adamski, the excluded evidence did not involve a statement that directly contradicted the victim's testimony that defendant assaulted her, and the victim's testimony was corroborated by evidence of the injuries that she suffered as a result. Furthermore and as discussed previously, it is not clear that the excluded statements in the instant case are necessarily inconsistent with the victim's trial testimony. To the extent that any inconsistencies exist, they are only marginally probative at best of the victim's credibility. Moreover, defendant does not dispute the fact that he and the victim were formerly in a dating relationship. Defendant has failed to show an error that was plain or obvious. Carines, 460 Mich at 763. Defendant also has not explained how, but for the exclusion of the alleged impeachment evidence, he would have been found not guilty and thus has failed to show that he was prejudiced. Id. While defendant argues that the prosecution must show that any constitutional error was harmless beyond a reasonable doubt in order to avoid reversal, defendant is incorrect because his claim of constitutional error is unpreserved. Defendant has not shown plain error requiring reversal based on his claim that his constitutional rights to confront witnesses against him and to present a defense were violated. See id.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Brock A. Swartzle