                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     September 13, 2016
               Plaintiff-Appellee,

v                                                                    No. 326445
                                                                     Wayne Circuit Court
HAKEEM AL-HISNAWI-SALMAN, a/k/a                                      LC Nos. 14-003397-FC;
HAKEEM SALMANALHISNAWI, a/k/a                                                14-003398-FH
HAKEEM AL-HISNAWI,

               Defendant-Appellant.


Before: CAVANAGH, P.J., and SAAD and FORT HOOD, JJ.

PER CURIAM.

        In LC No. 14-003397-FC, defendant was charged with assault with intent to commit
murder, MCL 750.83, assault with intent to do great bodily harm less than murder, MCL 750.84,
felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was separately
charged in LC No. 14-003398-FH with absconding while on bond, MCL 750.199a, and
malicious destruction of police property, MCL 750.377b. The two cases were consolidated for
trial. A jury found defendant guilty of the lesser offenses of assault with intent to do great bodily
harm and felonious assault, MCL 750.82, in addition to the felon-in-possession and felony-
firearm charges, and also found defendant guilty of absconding while on bond and malicious
destruction of police property. The trial court sentenced defendant in LC No. 14-003397-FC to
concurrent sentences of 4 to 10 years’ imprisonment for the assault with intent to do great bodily
harm conviction, one to four years’ imprisonment for the felonious assault conviction, and two to
five years’ imprisonment for the felon-in-possession conviction, to be served consecutive to a
two-year term of imprisonment for the felony-firearm conviction. The court also sentenced
defendant in LC No. 14-003398-FH to 23 months to 4 years’ imprisonment each for the
absconding and malicious destruction of property convictions, which were to be served
concurrently with defendant’s sentences in the other case. Defendant appeals as of right. We
affirm.

       This case arises from a shooting incident outside a pizza store in Detroit. Samer Haidar,
a deliveryman for the Pizza Place, delivered a pizza late to three men, one of whom was
defendant. An exchange occurred, involving curse words being exchanged between Haidar and
defendant. Haidar returned to the Pizza Place, and told his manager, Ahmed Chakkour, what had

                                                -1-
occurred. Shortly thereafter, defendant arrived at the store yelling and screaming, and asking for
the owner or manager. Defendant told Chakkour and other employees that Haidar had sworn at
him, and defendant threatened to kill Haidar if he saw him again. The other two men from the
delivery location were with defendant, and all three men eventually left the store and went
outside. As defendant and the two men were outside, one of the men confronted another
employee of the pizza store and wanted to fight. Chakkour went outside to intervene. At that
time, defendant was in his vehicle. According to witnesses, defendant had a handgun, which he
fired at Chakkour, who was shot in the leg. Another store employee, Mwafak Hariri, was outside
and screamed when Chakkour was shot. Defendant then pointed the gun in the direction of
Hariri and fired a shot, but Hariri was not struck. Security cameras inside the pizza store
captured events leading up to the shooting, but the shooting was not recorded because it occurred
outside the store.

        After defendant was charged in the pizza store shooting, he was released on bond, but
required to wear a tether as a condition of his bond. In March 2014, just two days before
defendant was scheduled to appear in court for his preliminary examination, the county’s tether
unit received notice that there was a problem with defendant’s tether. Officers who responded to
defendant’s location discovered that the tether had been cut off and left in the yard at that
location. Defendant was not present.

                                 I. DISCOVERY VIOLATIONS

       Defendant argues on appeal that numerous discovery violations denied him his right to
due process and a fair trial, and that the trial court erred in denying his motion to dismiss due to
the many violations. We disagree.

       This Court reviews de novo whether a defendant received due process. People v Odom,
276 Mich App 407, 421; 740 NW2d 557 (2007). “For a due process violation to result in
reversal of a criminal conviction, a defendant must prove prejudice to his or her defense.” Id. at
421–422. We review for an abuse of discretion a trial court’s decision whether to grant or deny a
motion to dismiss based on discovery violations. MCR 6.201(J); People v Davie (After
Remand), 225 Mich App 592, 597–598; 571 NW2d 229 (1997).

       Discovery was an ongoing problem in this case leading up to trial, resulting in defense
demands for discovery, motions to compel discovery, and a motion to dismiss filed shortly
before trial, which was denied. The parties apparently believed that the discovery issues had
been resolved by the time trial started, but it was discovered during trial that several items from a
police file had not been produced. The missing items included a “team report” prepared by
Officer Derrick Maye, a police sketch and photographs of the scene, the name of a possible
suspect, CRISNET reports related to defendant, “CAD”1 reports, a photograph of the pizza
shop’s menu,2 and an officer’s notes regarding two other individuals. The trial court agreed that


1
    “CAD” stands for Computer Aided Dispatch.
2
    The menu was in English even though some employees were unable to converse in English.


                                                -2-
the failure to produce these materials before trial violated its discovery order. The missing items
were provided to the defense, and the trial court agreed to adjourn trial to allow defense counsel
an opportunity to review the items and evaluate their significance for purposes of trial. Trial was
adjourned for approximately two months, until all of the jurors could convene again. In the
interim, the court took defendant’s renewed motion to dismiss under advisement.

        Before trial resumed, the trial court heard defendant’s motion to dismiss based on the
discovery violations. Defendant argued that dismissal was appropriate under Brady v Maryland,
373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), because the late-produced discovery would
have been useful either to impeach witnesses or as exculpatory evidence. In particular,
defendant argued that the newly produced information showed that the shooter was described as
wearing both a black shirt and a green shirt, whereas the video recording showed defendant
entering the store wearing a white shirt. The trial court denied the motion to dismiss, noting that
defendant had now received all discovery materials, that the prosecution’s witnesses had
previously been questioned about inconsistencies regarding the color of the shooter’s shirt, and
that no exculpatory evidence had been withheld.

         After trial resumed, the parties discovered that a ballistics report regarding analysis of a
shell casing recovered from the scene had not been provided. The report was obtained and it
revealed that the single casing recovered from the crime scene was identified as a nine-
millimeter casing, which was inconsistent with the evidence technician’s testimony that she had
collected a single .380-caliber casing from the scene. The trial court rejected defendant’s
argument that the report was exculpatory, given that there was no evidence identifying the
weapon used in the shooting. However, the trial court allowed defense counsel to recall the
evidence technician to address the inconsistency between her labelling of the casing and the
ballistics report.

        Defendant argues on appeal that the trial court erred by denying his motion to dismiss.
Defendant argues that the discovery violations included potentially exculpatory evidence and
that the late production of the evidence deprived him of his right to present a defense. Defendant
further argues that the prosecutor violated her duty under Brady, 373 US 83, to disclose known
exculpatory evidence to the defense. We conclude that the record does not establish a Brady
violation, and that the trial court did not abuse its discretion in addressing and resolving the
discovery violations, or in denying defendant’s motion to dismiss.

        “When determining the appropriate remedy for discovery violations, the trial court must
balance the interests of the courts, the public, and the parties in light of all the relevant
circumstances, including the reasons for noncompliance.” People v Banks, 249 Mich App 247,
252; 642 NW2d 351 (2002). If granting a continuance would not serve to protect the above
interests, only then should the trial court utilize other, more severe remedies. People v Clark,
164 Mich App 224, 229-230; 416 NW2d 390 (1987). The right to due process under US Const,
Am XIV, requires that the prosecution not suppress material evidence favorable to the defense.
Brady, 373 US 83; People v Fox (After Remand), 232 Mich App 541, 549; 591 NW2d 384
(1998). To prove a Brady violation, the defendant must show that (1) the prosecution suppressed
evidence; (2) the evidence was favorable to the accused; and (3) viewed in its totality, the
evidence is material. People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). “Evidence
is favorable to the defense when it is either exculpatory or impeaching.” Id. at 150. To establish

                                                -3-
materiality, a defendant must show that “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id.

        Where the prosecution does not suppress evidence, but only fails to preserve it, a
different test applies. If the exculpatory value of the unpreserved evidence is indeterminate and
only “potentially useful” to the defendant, the defendant has the burden of proving that the
government acted in bad faith in failing to preserve the evidence. Arizona v Youngblood, 488 US
51, 57-58; 109 S Ct 333; 102 L Ed 2d 281 (1988); People v Johnson, 197 Mich App 362, 365;
494 NW2d 873 (1992).

         We disagree with defendant’s argument that he was prejudiced by the late production of
several items, such that dismissal was the only appropriate remedy. Defendant argues that he
was prejudiced by the late production of the “team report” because it stated that a 911 caller
reported that the shooter wore a green shirt, whereas the video recording showed that defendant
was wearing a white shirt when he entered the store. It is apparent, however, that the defense
was aware of discrepancies in the descriptions of the shooter before the team report was
provided. Before trial was adjourned, Chakkour had stated that the shooter was wearing a black
shirt, and defense counsel elicited testimony from Haidar, who called 911 after the shooting, that
he reported that the shooter was wearing a green shirt. Moreover, after the trial resumed,
Officers Maye and Officer John Mitchell both testified that Chakkour had stated that the shooter
was wearing a black short-sleeved shirt, whereas Haidar had stated that the shooter wore a green
shirt. In sum, it is apparent that defense counsel was aware of the discrepancies in the
descriptions of the shooter’s clothing before the team report was produced and, more
significantly, that the jury was fully informed of the conflicting descriptions. Defendant has not
demonstrated that he was prejudiced by the late disclosure of the team report.

        Defendant’s arguments regarding the CAD reports also pertain to the disclosure that the
shooter was identified as wearing a green shirt. As indicated, because the defense was aware of
that information before the CAD reports were produced, and the conflicting descriptions of the
shooter were fully presented to the jury, there is no basis for concluding that defendant was
prejudiced by the late production of these reports.

         To the extent defendant complains that the actual 911 recordings were no longer
available, that issue does not involve a discovery violation, but a failure to preserve evidence.
There is no evidence that the recordings were destroyed in bad faith. Indeed, transcripts of the
contents of those calls were created and available for use at trial. Absent a showing of bad faith
in failing to preserve the actual recordings, defendant is not entitled to relief. Youngblood, 488
US at 57-58; see also Johnson, 197 Mich App at 365.

        Defendant also complains that a crime scene sketch and numerous photographs were not
produced until midtrial. Defendant fails to explain how these items were exculpatory, or how he
was prejudiced by their late production. After the continuance, the defense introduced a sketch
of the crime scene as evidence, so the jury was aware of that evidence. There is no basis for
concluding that the late production of this evidence prejudiced defendant’s right to a fair trial.



                                               -4-
        Defendant also complains about the late production of the ballistics report, which
identified the casing recovered from the scene as a nine-millimeter casing. This evidence
conflicted with the testimony of Mary Gross, the evidence technician, who testified that the
casing she collected was for .380-caliber ammunition. First, this evidence was not suppressed
because it was produced at trial. Second, there is no basis for concluding that defendant was
prejudiced by the late production of the report. The fact that a shooting occurred was
independently established by the testimony of witnesses who described seeing and hearing the
shooting, and by Chakkour’s gunshot wound. Because a weapon was never recovered and there
was no testimony identifying the type of weapon used, the caliber of the casing was of little
evidentiary value. Indeed, the recovered casing could not conclusively be linked to the charged
shooting. Moreover, after the ballistics report was produced, the trial court permitted defendant
to recall Gross to question her about the discrepancy between the caliber of ammunition
identified in her testimony and the caliber of ammunition identified in the report. Thus, the jury
was fully aware of this discrepancy in the evidence, a fact defense counsel emphasized during
closing argument in an attempt to discredit the reliability of the police investigation. Because
defendant had access to the report at trial, was permitted to recall Gross to question her about the
conflicts between her testimony and the contents of the report, and the defense was able to use
the report to question the reliability of the prosecution’s evidence, defendant cannot establish that
he was prejudiced by the late production of the report.

        Finally, defendant claims that the video recording from the pizza store was missing 14
seconds, which defendant maintains is proof that the prosecution suppressed material evidence.
At trial, defendant moved for a mistrial, arguing that the video recording that was shown to the
jury differed from the recording provided to defense counsel before trial. Counsel explained that
his copy displayed a time stamp on the recording, whereas the recording that was shown to the
jury did not, thereby indicating that it had been altered. The prosecutor asserted that there was
only one recording, which contained a time display. However, the recording was enlarged when
it was shown to the jury, which apparently cut off the time display. Defense counsel argued that
the time display was important because “there are chunks of time missing from the copy of the
video that we got” and 14 seconds were missing right after the time of the shooting. The trial
court responded that counsel could play the defense copy of the recording for the jury “and make
whatever arguments you want to make for the jury.” The court denied defendant’s motion for a
mistrial.

        On appeal, defendant does not complain about the lack of a time display on the video
recording shown to the jury, but now argues that the 14-second gap in a portion of the video
recording is evidence that the prosecution intentionally suppressed evidence. The record does
not support this argument. Initially, the defense received its copy of the video before trial.
Although counsel was aware that there were “chunks of time missing from the . . . video that we
got,” the defense did not move for a mistrial or seek other relief on this basis. Moreover, there is
no evidence that the police tampered with or failed to preserve portions of the video. Officer
Aaron Colwell testified that some cameras are motion activated and, depending on the type of
recording system, “you may have chunks of time missing.” Sergeant Todd Eby testified that the
video recording was sent to him by e-mail, and he forwarded it to Officer Colwell. Officer
Colwell testified that he downloaded the video to a CD, which was the video shown at trial.
Sergeant Eby and Officer Colwell both denied making any changes to the video recording they
each received, or even knowing how to do that. In sum, there was no evidence that the video

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recording received by the police actually contained a 14-second portion that was not included in
the recording that was provided to the defense and played at trial. Thus, the record does not
support defendant’s claim that evidence was suppressed or not preserved.

        In addition, there is no basis for concluding that the alleged missing 14 seconds would
have been exculpatory. Haidar testified that the pizza store only had cameras inside the store,
not outside. Sergeant Eby also testified that the recording he viewed showed the inside lobby
area of the store. The video depicted defendant entering the store before the shooting, but it did
not show the actual shooting, which occurred outside the store. In addition, defense counsel
asserted that the missing 14 seconds would have involved the time period after the shooting.
Accordingly, there is no reason to believe that any video of this 14-second period, assuming it
existed, would have contained information favorable to defendant.

         In sum, it is apparent that an entire police file and a forensic report were not timely
produced before trial, and that the 911 recordings were not preserved. However, there was other
evidence of the content of the 911 calls, and the remaining materials were provided to the
defense during trial. In addition, the trial court granted a lengthy continuance, thereby affording
the defense sufficient time to review the materials, and defendant was able to use the materials at
trial to highlight inconsistencies in witness testimony and the identification of the shooter. The
trial court reserved ruling on defendant’s motion to dismiss until it was appraised of all the
relevant circumstances. The trial court’s approach to remedying the discovery problems
appropriately balanced the competing interests of the parties, while ensuring fairness to the
defense. The court protected defendant’s right to a fair trial by ensuring that he received all
missing discovery materials during trial, and by affording counsel an adequate opportunity to
review the materials. The court also gave defendant an opportunity to demonstrate whether he
was prejudiced by the late production of the materials, and it did not err in finding that defendant
failed to demonstrate that he was prejudiced by the late production. Accordingly, defendant’s
claim fails.

                                           II. JOINDER

        Defendant next argues that the trial court erred in joining his two cases for trial. “To
determine whether joinder is permissible, a trial court must first find the relevant facts and then
must decide whether those facts constitute ‘related’ offenses for which joinder is appropriate.”
People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). The trial court’s findings of fact
are reviewed for clear error, and its application of the law to the facts is reviewed de novo. Id.
“The court’s ultimate ruling on a motion to sever is reviewed for an abuse of discretion.” People
v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005) (citation omitted).

       MCR 6.120(B) addresses the joinder of separate informations against the same defendant:

              On its own initiative, the motion of a party, or the stipulation of all parties,
       except as provided in subrule (C) [which requires the severance of unrelated
       offenses], the court may join offenses charged in two or more informations or
       indictments against a single defendant, or sever offenses charged in a single
       information or indictment against a single defendant, when appropriate to


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       promote fairness to the parties and a fair determination of the defendant’s guilt or
       innocence of each offense.

               (1) Joinder is appropriate if the offenses are related. For purposes of this
       rule, offenses are related if they are based on

               (a) the same conduct or transaction, or

               (b) a series of connected acts, or

               (c) a series of acts constituting parts of a single scheme or plan.

                (2) Other relevant factors include the timeliness of the motion, the drain
       on the parties’ resources, the potential for confusion or prejudice stemming from
       either the number of charges or the complexity or nature of the evidence, the
       potential for harassment, the convenience of witnesses, and the parties’ readiness
       for trial.

              (3) If the court acts on its own initiative, it must provide the parties an
       opportunity to be heard.

Here, the two cases were related because the absconding case arose out of defendant’s violation
of the conditions of his bond for the pizza store shooting case. The trial court observed that if the
two cases were tried separately, evidence concerning each offense would be admissible at a trial
of the other offense under MRE 404(b).3 More specifically, the evidence that defendant removed
his tether and absconded two days before his scheduled preliminary examination in the pizza
store shooting case would have been relevant evidence of flight to show defendant’s
consciousness of guilt for that offense.4 Because the charges in the absconding case involved
defendant’s violation of the terms of his bond in the pizza store shooting case, and evidence from
one case would have been admissible in the other case, the two cases were sufficiently related
and the trial court did not abuse its discretion in joining them for trial. Girard, 269 Mich App at
17. Defendant’s reliance on People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), is
misplaced. As our Supreme Court explained in Williams, 483 Mich at 228, “the provisions of
MCR 6.120 superseded Tobey” because the court rules were adopted after that case was decided
and “[t]he unambiguous language of MCR 6.120 permits joinder in a greater range of
circumstances than did Tobey.”



3
  MRE 404(b) permits evidence of other crimes, wrongs, or acts to be admitted if it is (1) offered
for a proper purpose, i.e., not to prove the defendant’s character or propensity to commit the
crime, (2) relevant to an issue or fact of consequence at trial, and (3) sufficiently probative to
outweigh the danger of unfair prejudice under MRE 403. People v VanderVliet, 444 Mich 52,
74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
4
  The prosecutor filed a motion to admit the evidence of defendant’s flight in the pizza store
shooting case, which the trial court granted.


                                                    -7-
                            III. PROSECUTORIAL MISCONDUCT

       Defendant also argues that misconduct by the prosecutor denied him a fair trial. We
disagree. “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). Questions of
prosecutorial misconduct are decided on a case-by-case basis, and a prosecutor’s remarks must
be evaluated in context, including the defense arguments, and their relationship to the evidence
admitted at trial. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014); Dobek, 274
Mich App at 64. “Prosecutors have discretion on how to argue the facts and reasonable
inferences arising therefrom, and are not limited to presenting their arguments in the blandest
terms possible.” People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011).

        Defendant initially argues that the prosecution’s discovery violations constituted
misconduct. As previously explained in section I, while there were discovery violations, the trial
court protected defendant’s right to a fair trial by granting a continuance to allow the defense
sufficient time to review and address the late-produced discovery items. The late production of
certain items did not prejudice defendant’s right to a fair trial, and defendant has failed to
establish that any missing evidence was material or favorable to defendant. Accordingly,
defendant is not entitled to relief on this basis.

       Defendant’s remaining claims of misconduct relate to the prosecutor’s remarks in closing
and rebuttal arguments. Because defendant did not object to the challenged remarks at trial, our
review of these claims is limited to plain error affecting defendant’s substantial rights. People v
Gaines, 306 Mich App 289, 308; 856 NW2d 222 (2014). Error requiring reversal will not be
found when a curative instruction could have displaced any prejudicial effect of the prosecutor’s
misconduct. People v Johnigan, 265 Mich App 463, 467; 696 NW2d 724 (2005).

        Defendant complains that the prosecutor improperly vouched for the credibility of her
witnesses when arguing that Haidar, Chakkour, and Hariri “were honest, consistent and have
never wavered about who the shooter was on August 30th.” A prosecutor may “comment on his
own witnesses’ credibility during closing argument, specifically when there is conflicting
evidence and the question of the defendant’s guilt depends on which witnesses the jury
believes.” People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). However, a
prosecutor is not permitted to vouch for the credibility of a prosecution witness by implying that
he or she possesses “special knowledge” of the witness’s truthfulness. People v Seals, 285 Mich
App 1, 22; 776 NW2d 314 (2009). Simply because the prosecutor referred to the witnesses as
“honest,” “credible,” and “consistent” does not indicate that she was personally vouching for
their credibility. The prosecutor’s argument was focused on reasons, grounded in the evidence
and the manner in which the witnesses testified at trial, for why the witnesses should be believed.
The prosecutor did not refer to any personal information, not presented at trial, to suggest that
she had some special knowledge that the witnesses were credible. Accordingly, the remarks did
not constitute prosecutorial misconduct.

       Defendant also argues that the prosecutor improperly denigrated the defense in the
following remarks during rebuttal argument:


                                                -8-
               The testimony – you often hear lawyers talk about various things like, you
       know, we want to protect, protect the process and beat on the thing. People are
       not being treated fairly. People are not being treated fairly. That’s all you heard
       in their argument. Went on for about eight minutes. But no talk about the
       testimony. No talk whatsoever about the facts that happened on August 30th.
       You know why? Because eyewitnesses to what took place were credible and they
       were consistent. They’ve never wavered from who, in fact, they made the
       observations of on August 30th. Not one. That’s why you didn’t hear that. Not
       one.

We do not agree. First, these remarks were responsive to defense counsel’s closing argument. A
prosecutor may fairly respond to an issue raised by the defendant. People v Brown, 279 Mich
App 116, 135; 755 NW2d 664 (2008). Second, the prosecutor’s remarks did not involve a
personal attack on defense counsel’s character or veracity. See People v Unger, 278 Mich App
210, 236; 749 NW2d 272 (2008). The prosecutor’s comments were not directed at defense
counsel personally, but rather on the lack of evidence to support the defense arguments. The
prosecutor simply pointed out that the defense arguments were not focused on the actual
testimony presented in this case. It was not a denigration of the defense to urge the jury to focus
on the evidence, and not arguments that lacked evidentiary support. Accordingly, there was no
plain error.

       Affirmed.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Henry William Saad
                                                            /s/ Karen M. Fort Hood




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