                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      FOR PUBLICATION
                                                                      August 16, 2018
               Plaintiff-Appellee,                                    9:00 a.m.

v                                                                     No. 337754
                                                                      Wayne Circuit Court
TORREY CRAFT,                                                         LC No. 16-007995-01-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

SWARTZLE, P. J.

        It is not uncommon for a trial court to supplement its jury instructions during jury
deliberations. In fact, our court rules specifically authorize supplemental instructions. Yet, what
is not common is for a trial court to fail initially to give any instruction on two entire counts, and
then to supplement with full instructions on those counts. While not common, such a
circumstance is not unconstitutional if corrected before a jury returns its verdict, and a party is
not barred from asking for supplemental instructions even if the party had earlier acquiesced to
the original, incomplete instructions.

       Concluding that the trial court did, in fact, timely correct its initial oversight and finding
no other reversible error, we affirm.

                                        I. BACKGROUND

        The events leading to defendant’s convictions had as their origin a dispute between him
and his girlfriend in the summer of 2016. During trial, Kevin Hollis testified that he witnessed
the dispute and tried to intervene on the girlfriend’s behalf. Defendant became angry at Hollis
and expressed a desire to fight with him, but no fight ensued.

       Instead, the next day, Hollis was playing catch outside with Calvin Arnold, Jr. and
Arnold’s stepsons, seven-year-old Amir and nine-year-old Antonio, while Bianca Primm, the
boys’ mother, watched. Hollis heard someone call his nickname (Bam) and say, “You still
wanna[] fight?” and “You still talkin’ that scrap shit?” Hollis testified that he recognized
defendant and noticed that another man was with defendant, though he could not identify him
because his face was covered. Hollis saw defendant produce a rifle and shoot one round toward
him. Instead of hitting Hollis, the bullet struck Amir. Defendant and the other man then ran to a

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waiting vehicle—a “gold, or beige, [or] silver” Trailblazer, according to Hollis—and drove
away. Amir was taken to the hospital and underwent several surgeries, eventually recovering
from his injuries.

        Hollis, who had known defendant for over three years, gave defendant’s name to the
police and later identified him from a photograph. Police officers went to defendant’s last-
known address and observed defendant parking a silver Trailblazer. The officers attempted to
stop defendant, but he fled in the vehicle and escaped by ditching the vehicle and continuing his
flight on foot. Shortly thereafter, officers caught up with defendant and took him into custody.

         While in custody, and within two days of the shooting, defendant participated in a live,
six-man lineup. Defendant was assigned legal counsel for purposes of the lineup, and his
counsel did not object to any portion of the lineup. After viewing the assembled men, both
Arnold and Primm identified defendant as the assailant. Defendant was charged with three
counts of assault with intent to commit murder, MCL 750.83; one count of carrying a dangerous
weapon with unlawful intent (carrying with intent), MCL 750.226; and one count of possession
of a firearm during the commission of a felony (felony firearm), MCL 750.227b.

       Defendant’s trial counsel moved to suppress the lineup identification. Defense counsel
argued that, notwithstanding the lack of objection by the lineup counsel, the lineup was
impermissibly suggestive because: (1) defendant was shorter and smaller than the other men; (2)
he had a lighter complexion than the others; and (3) he was one of only two men who wore an
orange jumpsuit. Defense counsel requested an expanded evidentiary hearing so that he could
present testimony from the lineup counsel, Arnold, Primm, and four detectives. This type of
hearing is commonly referred to as a Wade hearing, referencing the federal Supreme Court’s
decision in United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967).

        The trial court held an evidentiary hearing, but limited the scope to testimony from the
lineup counsel. After hearing the testimony, reviewing a photograph of the lineup, and
considering argument from counsel, the trial court held that defendant had not overcome the
presumption that the lineup was valid. Referring to the lineup photograph, the trial court noted
“that [there] wasn’t anything that was significantly off” and that, while there were some physical
differences among the lineup participants, “[t]here are height differences that are allowed, and
clothing.” The trial court concluded, “I cannot find, as a matter of law, that there was anything
impermissibly suggestive as to give rise to a substantial likelihood of misidentification.”

        The trial proceeded before a jury. During trial, Arnold, Primm, and Hollis testified that
defendant was the person who shot Amir. Although Arnold testified that he had seen
defendant’s name on television following the lineup, both Arnold and Primm testified that their
identification of defendant was based on their memory of his face at the time of the shooting,
rather than any other outside influence. Arnold was asked whether defendant’s attire during the
lineup factored into his identification, and Arnold denied that it had.

        At the close of proofs, the trial court prepared to instruct the jury. Both the prosecutor
and defense counsel approved the proposed instructions, although no one appears to have noticed
that there were no instructions for the two firearm-related counts, carrying with intent and felony
firearm. Shortly after the jury began deliberating, it asked the trial court in writing, “There are 5

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counts only 3 are in the back of the binder. We thought the last two were dropped. Are we
voting on all 5? The verdict form has 5.” Recognizing its error, the trial court asked counsel to
research whether it could provide instructions to the jury on the omitted counts or, instead, it had
to dismiss those counts. After hearing argument, the trial court determined that it could provide
the omitted instructions, and the trial court proceeded to reinstruct the jury, this time on all five
counts. The jury eventually returned a verdict of guilty on two counts of assault with intent to
do great bodily harm less than murder, MCL 750.84 (a lesser-included offense to assault with
intent to commit murder), as well as on the two firearm-related counts.

       This appeal followed.

                                          II. ANALYSIS

        Defendant makes two claims on appeal. First, he asserts that the trial court committed a
structural constitutional error by instructing the jury on the two omitted counts. Second, he
argues that the trial court reversibly erred when it narrowed the Wade hearing and held that the
lineup was not impermissibly suggestive. We consider each claim in turn.

                     A. SUPPLEMENTING THE JURY INSTRUCTIONS

        Defendant’s first claim centers on how the trial court instructed the jury. “We review a
claim of instructional error involving a question of law de novo, but we review the trial court’s
determination that a jury instruction applies to the facts of the case for an abuse of discretion.”
People v Everett, 318 Mich App 511, 528; 899 NW2d 94 (2017) (cleaned up).1 An abuse of
discretion occurs when the trial court’s decision is outside the range of reasonable and principled
outcomes. Id. at 516. Our court rules authorize a trial court to supplement its original
instructions to the jury, and we review interpretation of these rules de novo. People v
Lacalamita, 286 Mich App 467, 472; 780 NW2d 311 (2009).

        Defendant maintains that the trial court lacked authority to supplement its earlier jury
instructions with instructions on the two omitted counts. By agreeing to the original instructions,
the prosecutor waived any subsequent argument that the original instructions were somehow
lacking or deficient, according to defendant. And by agreeing with the prosecutor and
supplementing its earlier instructions, the trial court committed an instructional error, which,
according to defendant, is a structural constitutional error requiring reversal and a new trial. We
reject both contentions.

       Waiver Is an Appellate Matter. In acquiescing to the original, incomplete instructions,
defendant argues that the prosecutor thereby waived the ability subsequently to take the position
before the trial court that supplemental instructions were needed. This argument misreads our

1
  This opinion uses the new parenthetical (cleaned up) to improve readability without altering the
substance of the quotation. The parenthetical indicates that non-substantive clutter such as
brackets, internal quotation marks, alterations, and unimportant citations have been omitted from
the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).


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waiver jurisprudence. Defendant cites as support MCR 2.512(C), which provides in part that
“[a] party may assign as error the giving of or the failure to give an instruction only if the party
objects on the record before the jury retires to consider the verdict.” Yet, the “assign as error . . .
only if” provision in the court rule does not act as a bar to proceedings in the trial court, but
rather as a restriction on appeal. See People v Gonzalez, 256 Mich App 212, 225; 663 NW2d
499 (2003). If a party fails to object to the trial court’s instructions, then the party has failed to
preserve the objection for appellate review. Id. The court rule says nothing about whether,
during trial court proceedings, a party can alter its position on the appropriateness of jury
instructions when a question is subsequently raised.

        Defendant’s reliance on our Supreme Court’s decision in People v Carter, 462 Mich 206;
612 NW2d 144 (2000) is similarly unconvincing. The Carter decision involved the distinction
between waiving and forfeiting an issue in trial court proceedings and how that waiver or
forfeiture, as the case may be, would affect appellate review of that issue. See id. at 214-216.
The decision did not involve the position that defendant asserts here, i.e., that by agreeing to the
trial court’s original instructions, the prosecutor waived any argument in the trial court
proceedings that the trial court could supplement its own instructions. Defendant’s other
waiver-based authority is similarly unavailing. See, e.g., Moore v Detroit Entertainment, LLC,
279 Mich App 195, 224; 755 NW2d 686 (2008) (concluding that a party’s expression of
satisfaction with the trial court’s instructions constitute a waiver that precludes appellate review).
Thus, the prosecutor did not waive nor was she otherwise estopped from arguing in favor of the
supplemental instructions simply because she acquiesced to the original ones.

        The Trial Court Averted a Structural Constitutional Error. Defendant next argues that
the trial court erred by supplementing its original instructions with instructions on the two
omitted counts, and, by doing so, the trial court committed structural constitutional error. While
not entirely clear, it appears that defendant’s argument is four-fold: (1) the trial court was
purportedly barred from providing supplemental instructions on the two counts; (2) had the trial
court not supplemented its instructions on the two counts, the jury would have been left with a
complete lack of instruction on those counts; (3) any conviction on the hypothetically
“uninstructed” counts would have been a structural constitutional error requiring automatic
reversal; and (4) because the trial court should not have instructed on those counts, this Court
should treat the trial court’s supplemental instructions and the jury’s subsequent convictions on
the two counts as a structural constitutional error. While creative, the argument is ultimately
unavailing.

        One of the essential roles of the trial court is to present “the case to the jury and to
instruct it on the applicable law” with instructions that include “all the elements of the offenses
charged against the defendant and any material issues, defenses, and theories that are supported
by the evidence.” People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007). Our court
rules reflect that a trial court’s initial jury instructions are not necessarily written in stone and
that the instructions may need to be supplemented. Specifically, MCR 2.512(B)(1) provides: “At
any time during the trial, the court may, with or without request, instruct the jury on a point of
law if the instruction will materially aid the jury in understanding the proceedings and arriving at
a just verdict.” MCR 2.513(N)(1) further states: “After jury deliberations begin, the court may
give additional instructions that are appropriate.” Thus, the court rules give the trial court broad
authority to carry out its duty to instruct the jury properly, and this authority extends to

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instructing the jury even during deliberations. There is nothing in the court rules that preclude
the trial court from supplementing its original instructions with instructions for an entire count,
nor is there anything in the rules to suggest that a party’s acquiescence to the original instructions
somehow acts as a bar to the trial court supplementing its instructions. Indeed, our court rules
are intended to give trial courts the appropriate tools to avoid errors in the first place, and correct
them in the second place. See Prentis Family Foundation v Barbara Ann Karmanos Cancer
Institute, 266 Mich App 39, 52-53; 698 NW2d 900 (2005) (noting that “a trial court has
unrestricted discretion to review its previous decision” absent an appellate court’s prior holding
to the contrary).

        As for defendant’s argument that the trial court committed a structural constitutional error
by instructing the jury on the two counts, we conclude just the opposite—with its supplemental
instructions, the trial court did not commit a structural constitutional error, but rather averted
one. It was clear from the outset that defendant was being tried on five criminal counts. This
was highlighted in the verdict form, which indicated that the jury had to render verdicts on three
separate counts of assault with intent to commit murder, one count of carrying with intent, and
one count of felony firearm. Yet, when the jury reviewed the written instructions, it could not
find anything covering the latter two counts. It therefore asked the trial court for guidance
concerning their deliberations on the latter two counts: Was it to presume those counts had been
dismissed or was the omission unintentional?

         In response, the trial court concluded that it was appropriate to reinstruct the jury by re-
reading all of the instructions it had previously given and adding the specific instructions for the
two omitted offenses. The supplemental instructions were “responsive to the jury’s request and
did not serve to mislead the jury in any manner.” People v Katt, 248 Mich App 282, 311; 639
NW2d 815 (2001). In fact, the trial court could have chosen to give only the instructions on the
two omitted offenses, but rather it chose to reinstruct the jury on all of the charges to avoid any
prejudice that may result from piecemeal consideration. Id. Had the jury returned a guilty
verdict on either of the two counts without the additional instructions, the omission would have
been a structural error likely warranting reversal. People v Duncan, 462 Mich 47, 48; 610
NW2d 551 (2000); cf People v Traver, __ Mich __; __ NW2d __ (2018) (Docket No. 154494);
slip op at 13 n 7 (noting that it is an open question whether a defendant can waive appellate
review of a structural error resulting from conviction on a charge for which there was a complete
failure to instruct).

         The trial court’s decision to reinstruct the jury—one which was made after considerable
input from the parties—was reasonably calculated to protect defendant’s right to a properly
instructed jury while avoiding the time and costs of a new trial. Given this, the trial court’s
decision was within the range of reasonable and principled outcomes and was not an abuse of its
discretion.

                                   B. THE PRETRIAL LINEUP

       Defendant also argues that Arnold and Primm’s identifications of defendant should have
been excluded at trial because the pretrial lineup was impermissibly suggestive. Defendant
argues that the trial court should have granted his request for a Wade evidentiary hearing and that
such a hearing would have confirmed the impropriety of the identification procedure.

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        While we review the trial court’s decision whether to hold an evidentiary hearing for an
abuse of discretion, People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008), the
trial court’s decision to admit or deny identification evidence is reviewed for clear error, People
v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002). “Clear error exists when the
reviewing court is left with a definite and firm conviction that a mistake was made.” Id.
Defendant was represented by counsel at the pretrial lineup and therefore he “bears the burden of
showing that the lineup was impermissibly suggestive.” People v McElhaney, 215 Mich App
269, 286; 545 NW2d 18 (1996).

       First, we conclude that defendant has not met his burden to show an entitlement to an
expanded evidentiary hearing under Wade. The trial court did conduct an evidentiary hearing
regarding the lineup, during which a photograph of the lineup was admitted as evidence and
defendant’s lineup counsel testified to her impression of the procedure. On appeal, defendant
does not identify any other evidence that was necessary to a determination of the lineup’s
suggestibility. While defendant’s motion before the trial court indicated that he wished to
present testimony from Arnold and Primm, as well as four police detectives, both Arnold and
Primm testified at trial, and, on appeal, defendant has not explained what testimony he wished to
procure from the detectives. Defendant does not explain why the photograph and his lineup
counsel’s testimony were insufficient for the trial court to decide the issue, nor does defendant
explain why the trial testimony of Arnold and Primm is insufficient for this Court to address the
suggestibility of the lineup on appeal. Accordingly, we conclude that defendant was not entitled
to an expanded evidentiary hearing when originally requested, nor is he now entitled to this
hearing post-conviction. See People v Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009).

        Second, we conclude that defendant has not shown that the identification was
impermissibly suggestive. Defendant focuses on several factors that he insists rendered the
identification procedure impermissibly suggestive. He claims that he was smaller than the other
lineup participants, he was one of only two participants in an orange jail jumpsuit, and he had a
lighter complexion than the other participants. “Physical differences among the lineup
participants do not necessarily render the procedure defective and are significant only to the
extent that they are apparent to the witness and substantially distinguish the defendant from the
other lineup participants.” Hornsby, 251 Mich App at 466. Generally, physical differences
affect the weight of an identification, not its admissibility. Id.

        Here, the physical differences were not so dramatic as to render the lineup impermissibly
suggestive. Defendant has attached the “Showup & Photo Identification Record” from the lineup
to his appellate brief. According to this form, defendant was 5’ 6” tall and weighed 150 pounds.
The other participants in the lineup were, respectively (#1) 5’ 5” tall and 195 pounds; (#2) 6’ tall
and 180 pounds; (#3) 5’ 9” tall and 150 pounds; (#4) 6’ tall and 185 pounds; and (#5) 5’ 9” tall
and 135 pounds. While there was some variance between the heights and weights, it was not the
type of variance that would make defendant stick out from the grouping. Indeed, defendant
ranks somewhere in the lower-middle of the sample based on height and weight. Regarding
defendant’s complexion, the photographs of record do not depict any marked differences in
complexion among the participants. Moreover, we note no marked variance in the physical build
of the subjects in the photograph.



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         While it is generally preferable to present lineup participants in attire which is not
indicative of their confinement (or alternatively to present all lineup participants in jailhouse
attire, see, e.g., United States v Erickson, 797 F Supp 1387, 1394 (ND Ill, 1992)), in this case,
defendant was not the only person in the lineup wearing an orange jumpsuit. Furthermore, both
Arnold and Primm testified that their identification of defendant was based solely on his facial
features, not any clothing or physical characteristics. Arnold specifically testified that his
identification of defendant was not based on defendant’s jumpsuit. In sum, defendant has not
shown that the lineup was so suggestive as to distinguish substantially defendant from the other
participants.

        To the extent that defendant argues that Arnold’s and Primm’s identifications were based
upon factors external to the lineup, he has not provided evidence in support of that assertion.
While defendant argues that Arnold saw defendant’s picture on television before making his
identification, Arnold’s testimony makes clear that he only viewed defendant’s name on the
news after the lineup was conducted. Thus, defendant has provided no evidence of any influence
that would render the lineup impermissibly suggestive.

        Finally, even had defendant shown that the lineup was impermissibly suggestive, he has
not shown that the error undermined the reliability of the jury’s verdict. MCR 2.613(A). Several
other pieces of evidence presented at trial tended to establish defendant’s identity as the shooter.
First, Hollis testified that he had known defendant for three years before the shooting, the two
had a disagreement the day before the shooting, and defendant asked Hollis if he wanted to fight
before starting to shoot, calling Hollis by his nickname when doing so. On appeal, defendant has
not challenged Hollis’s identification. Moreover, the record indicates that defendant was seen in
a vehicle matching the description of the get-away vehicle shortly after the shooting. The
evidence further shows that defendant fled when questioned by police. Defendant’s flight is
relevant circumstantial evidence of his consciousness of guilt. Unger, 278 Mich App at 226.

        Given this evidence of defendant’s identity, we conclude that any error in the admission
of Arnold’s and Primm’s identification of defendant would have been harmless. To the extent
that defendant argues that his lineup counsel was ineffective for failing to object to the lineup
procedure, because defendant has not shown that the lineup was impermissibly suggestive or that
any suggestiveness undermines the reliability of the jury’s verdict, defendant has failed to show
that his lineup counsel was ineffective. People v Sabin (On Second Remand), 242 Mich App
656, 659; 620 NW2d 19 (2000).




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                                       III. CONCLUSION

        Before the jury returns its verdict, the trial court may supplement its instructions in any
manner consistent with the accurate determination of the charges. Thus, in the situation
presented here, when the trial court unintentionally omitted any instruction on two entire counts,
the trial court did not abuse its discretion by providing accurate supplemental instructions
addressing each of the charged counts. Because defendant’s remaining claim of error is similarly
without merit, we affirm his convictions.

                                                            /s/ Brock A. Swartzle
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Michael J. Kelly




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