                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 8, 2017
               Plaintiff-Appellee,

v                                                                  No. 332362
                                                                   Genesee Circuit Court
MARKUS GERALD-ALLEN EVANS,                                         LC No. 13-034062-FC

               Defendant-Appellant.


Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ.

PER CURIAM.

        Defendant, Markus Gerald-Allen Evans, was convicted by a jury of two counts of felony
murder, MCL 750.316(1)(b), one count of first-degree home invasion, MCL 750.110a(2), one
count of felon in possession of a firearm, MCL 750.224f, and one count of possession of a
firearm during the commission of a felony, MCL 750.227b, and sentenced as a fourth-offense
habitual offender, MCL 769.12, to concurrent prison terms of life for the murder convictions, 10
to 20 years for the home-invasion conviction, and 2 to 5 years for the felon-in-possession
conviction, and a consecutive prison term of 2 years for the felony-firearm conviction. We
affirm.

         Defendant and his co-defendant, Roderick Jackson, were arrested on April 8, 2012, after
breaking into a home in Flint, Michigan, and murdering the home’s two occupants. After he was
arrested, defendant eventually agreed to testify against Jackson, as well as several other
individuals, as part of a federal proffer agreement with federal prosecutors who were conducting
a racketeering investigation into “the Howard Boys,” a gang that defendant was admittedly a
member of. In light of his ongoing cooperation in the federal investigation, defendant was also
engaging in plea negotiations with the prosecution relating to the charges in this case, which
were contingent upon his cooperation in the state investigation as well. As part of his proffer
agreement, defendant admitted that he broke into the home at issue on April 8, 2012, admitted
that he shot one of the occupants approximately 12 times, and admitted that Jackson broke into
the home and shot the other occupant. Pursuant to his proffer agreement, defendant was required
to testify truthfully against Jackson, but, during a hearing on October 6, 2015, defendant stated
that he would no longer cooperate with the state and federal authorities. As a result, the federal
investigation and the proceedings in this matter continued without his cooperation. In the state
case, defendant was tried before a jury beginning on February 9, 2016, just four months after he


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refused to cooperate, and a jury found him guilty as charged. He now challenges his convictions
and corresponding sentences on constitutional grounds in three different ways.

       First, defendant argues that he was deprived of his constitutional right to a speedy trial
because the prosecution failed to bring him to trial within 18 months after his arrest. We
disagree.

       Whether a defendant was denied his constitutional right to a speedy trial is a
       mixed question of fact and law. We review trial court factual findings under the
       clearly erroneous standard. We review constitutional questions of law de novo.
       To determine whether a defendant has been denied his right to a speedy trial, this
       Court considers (1) the length of the delay, (2) the reason for the delay, (3) the
       defendant’s assertion of the right to a speedy trial, and (4) any prejudice to the
       defendant. A delay of more than eighteen months is presumed to be prejudicial;
       the prosecution bears the burden of proving lack of prejudice to the defendant.
       The establishment of presumptively prejudicial delay triggers an inquiry into the
       other factors to be considered in the balancing of competing interests to determine
       whether a defendant has been deprived of the right to a speedy trial. [People v
       Gilmore, 222 Mich App 442, 459; 564 NW2d 158 (1997) (internal citations and
       quotation marks omitted).]

         In this case, defendant was arrested on February 8, 2012, and his jury trial did not
commence until February 9, 2016, approximately four years later. People v Williams, 475 Mich
245, 262; 716 NW2d 208 (2006) (providing that “the length of delay” is measured “between
defendant’s arrest and the trial”). Because the length of the delay is more than eighteen months,
the first factor set forth above favors defendant’s position, and prejudice is presumed. Gilmore,
222 Mich App at 459.

        However, the second factor both favors the prosecution and largely undermines
defendant’s reliance on the first factor. People v Waclawski, 286 Mich App 634, 666; 780
NW2d 321 (2009) (“In assessing the reasons for delay, this Court must examine whether each
period of delay is attributable to the defendant or the prosecution.”). On appeal, defendant
claims that the only “reason for the delays are court unavailability and joining the trial with that
of the co-defendant.” However, the record belies that assertion. As indicated above, a
significant portion of the alleged delay at issue, from February 8, 2012, to October 6, 2015, is
attributable to defendant’s cooperation in the state and federal investigations, a reason that
defendant does not even acknowledge in his argument on appeal. It appears that the only delay
somewhat attributable to the prosecution is the time period from when defendant expressed his
decision to no longer cooperate, on October 6, 2015, to when defendant’s jury trial began, on
February 9, 2016. This four-month delay does not weigh heavily against the prosecution in this
regard. While defendant is arguably correct in asserting that there were other various delays
attributable to “court unavailability and joining the trial with that of the co-defendant” or to
otherwise unexplained reasons, those “delays inherent to the court system,” while “technically
attributable to the prosecution . . . are given a neutral tint and are assigned only minimal weight
in determining whether a defendant was denied a speedy trial.” Gilmore, 222 Mich at 460; see
also Waclawski, 286 Mich App at 666.


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         With respect to the third factor, the record does not support defendant’s claim that he
asserted his constitutional right to a speedy trial on July 14, 2015. Instead, the record supports
the prosecution’s argument that defendant only, and specifically, sought dismissal pursuant to the
180-day rule, which is not the same grounds as he now asserts. Consequently, this factor weighs
against defendant’s position. Williams, 475 Mich at 263 (holding that “the trial court did not
clearly err in weighing this favor heavily against defendant”). Furthermore, we cannot overlook
the fact that, even as late as a hearing on July 14, 2015, it appears that the parties recognized that
defendant was cooperating with law enforcement pursuant to his proffer agreement. We cannot
find any legal authority to support the notion that a defendant may use cooperation with law
enforcement in a manner that deprives himself of his constitutional right to a speedy trial, and, as
indicated above, defendant does not address his failure to comply with the proffer agreement at
all in his argument on appeal.

        Finally, with respect to the fourth factor, we agree with the prosecution’s argument that
there is nothing in the record to support a conclusion that defendant, who was in federal custody
throughout the entirety of the alleged delay and largely cooperating with law enforcement, was
somehow prejudiced by any delay present in this case. Williams, 475 Mich at 264 (“[T]his Court
has held that the prejudice prong . . . may properly weigh against a defendant incarcerated for an
even longer period if his defense is not prejudiced by the delay.”). Furthermore, as the
prosecution contends, the fact that defendant admitted his role in the crimes at issue in this case
undermines the notion that he was otherwise prevented from preparing a defense.

       In sum, defendant’s claim that “court unavailability and joining the trial with that of the
co-defendant” were the only causes of the delay in this case is not supported by the record.
While it is true that the lengthy delay in this case is presumptively prejudicial, it is our
conclusion that, in light of defendant’s refusal to cooperate after doing so throughout the
proceedings up to that point, defendant’s failure to specifically raise this argument, and the
prosecution’s persuasive demonstration that defendant was not prejudiced by the delay,
defendant was not deprived of his constitutional right to a speedy trial.

       Second, defendant argues that he was deprived of his constitutional right to confront the
witnesses against him by the admission of Martez Ayers’s testimony. We disagree.

        “The Confrontation Clause provides that ‘[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . .’ ” People v Spangler,
285 Mich App 136, 142; 774 NW2d 702 (2009), quoting US Const, Am VI. The resolution of
defendant’s argument on appeal requires that this Court determine whether the statements at
issue are testimonial or non-testimonial in nature. This is because “the Confrontation Clause
bars out-of-court statements that are testimonial in nature unless the declarant is unavailable to
testify but the defendant had a prior opportunity to cross-examine the declarant.” Id. The
Confrontation Clause does not, however, bar out-of-court statements that are non-testimonial in
nature. People v Taylor, 482 Mich 368, 374; 759 NW2d 361 (2008) (“Because the hearsay
statements in this case were nontestimonial, they do not implicate the Confrontation Clause[.]”).
And, notably, defendant does not make any hearsay-related argument with respect to the
statements at issue. Id. (providing that the admission of nontestimonial hearsay is nevertheless
“governed solely by MRE 804(b)(3)”). Stated simply, statements “made informally to an
acquaintance, not during a police interrogation or other formal proceeding or under

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circumstances indicating that their ‘primary purpose’ was to ‘establish or prove past events
potentially relevant to later criminal prosecution” are nontestimonial. Id. at 378.

        In this case, defendant takes issue with Ayers’s testimony about comments made by
Jackson to Ayers regarding the crimes that took place on April 8, 2012. On appeal, defendant
generally argues that “there should be an inherent suspicion” about statements given to fellow
inmates. He spends little, if any, time in his brief actually arguing the merits of whether
Jackson’s comments to Ayers are testimonial or nontestimonial in nature, and we are not
required to do so for him. “An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment with little or no citation of supporting authority.” People v Payne, 285 Mich App 181,
195; 774 NW2d 714 (2009) (citation and internal quotation marks omitted). Furthermore, it is
quite apparent from the record that Ayers was an acquaintance, and it is equally apparent that
Jackson made these statements to Ayers in an informal setting, not in a police interrogation,
formal proceeding, or under any other circumstances where the primary purpose was related to
subsequent prosecution. Taylor, 482 Mich at 378. While Ayers’s description of his relationship
with Jackson may not have included, verbatim, the word “acquaintance,” we nevertheless
conclude that the fact that he “somewhat” knew Jackson is sufficient to render the statements
non-testimonial in nature. He does not provide, and we are unable to find, any factual support
for the notion that Ayers was a confidential informant, which makes this case different from
United States v Cromer, 389 F3d 662 (CA6 2004), a case relied on by defendant. Accordingly,
because the statements at issue were nontestimonial in nature, defendant’s confrontation rights
were not violated.

       Third, defendant argues that he was deprived of his constitutional right to a fair trial by
the admission of irrelevant and unfairly prejudicial other-acts evidence. We disagree.

               The decision whether to admit evidence falls within a trial court’s
       discretion and will be reversed only when there is an abuse of discretion. A trial
       court abuses its discretion when its decision falls outside the range of reasonable
       and principled outcomes. Decisions concerning the admission of evidence often
       involve preliminary questions of law that are reviewed de novo. These
       preliminary questions of law include questions involving the interpretation of
       rules of evidence. A trial court necessarily abuses its discretion when it makes an
       error of law. [People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013).]

        Our Supreme Court has recently summarized the framework for analyzing the admission
of other-acts evidence as follows:

               People v VanderVliet, 444 Mich 52, 64; 508 NW2d 114 (1993), sets forth
       the prevailing framework for analyzing admissibility of “[e]vidence of other
       crimes, wrongs, or acts” under MRE 404(b). As this Court explained then and
       has consistently reaffirmed since, MRE 404(b) “is a rule of legal relevance” that
       “limits only one category of logically relevant evidence”: “[i]f the proponent’s
       only theory of relevance is that the other act shows defendant’s inclination to
       wrongdoing in general to prove that the defendant committed the conduct in
       question, the evidence is not admissible.” Id. at 61-63. “ ‘Underlying the rule is

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the fear that a jury will convict the defendant inferentially on the basis of his bad
character rather than because he is guilty beyond a reasonable doubt of the crime
charged.’ ” People v Watkins, 450, 468; 818 NW2d 296 (2012), quoting People v
Crawford, 458 Mich 376, 384; 582 NW2d 785 (1998). MRE 404(b) governs but
does not prohibit all evidence of other acts that risks this character-to-conduct
inference; the rule “is not exclusionary, but is inclusionary, because it provides a
nonexhaustive list of reasons to property admit evidence that may nonetheless
also give rise to an inference about the defendant’s character.” People v Mardlin,
487 Mich 609, 616; 790 NW2d 607 (2010); see, e.g., Watkins, 491 Mich at 468
(“MRE 404(b) requires the exclusion of other-acts evidence if its only relevance
is to show the defendant’s character or propensity to commit the charged
offense.”); People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888
(2000) (“The VanderVliet analytical framework reflects the theory of multiple
admissibility on which MRE 404(b) is founded.”). Accordingly,

       [t]o admit evidence under MRE 404(b), the prosecutor must first
       establish that the evidence is logically relevant to a material fact in
       the case, as required by MRE 401 and MRE 402, and is not simply
       evidence of the defendant’s character or relevant to his propensity
       to act in conformance with his character. The prosecution thus
       bears an initial burden to show that the proffered evidence is
       relevant to a proper purpose under the nonexclusive list in MRE
       404(b)(1) or is otherwise probative of a fact other than the
       defendant’s character or criminal propensity. Evidence relevant to
       a noncharacter purpose is admissible under MRE 404(B) even if it
       also reflects on a defendant’s character. Evidence is inadmissible
       under this rule only if it is relevant solely to the defendant’s
       character or criminal propensity . . . . Any undue prejudice that
       arises because the evidence also unavoidably reflects the
       defendant’s character is then considered under the MRE 403
       balancing test, which permits the court to exclude relevant
       evidence if its “probative value is substantially outweighed by the
       danger of unfair prejudice . . . .” MRE 403. Finally, upon request,
       the trial court may provide a limiting instruction to the jury under
       MRE 105 to specify that the jury may consider the evidence only
       for proper, noncharacter purposes. [Mardlin, 487 Mich at 615-616
       (footnotes omitted).]

        In light of the “inherent complexity” in applying this framework to the
various circumstances and scenarios that may arise in a “modern day trial,” this
Court has adopted a pretrial notice requirement, first set forth in VanderVliet and
now codified in MRE 404(b)(2), “[t]o assist the trial court in this extraordinarily
difficult context and to promote the public interest of reliable fact finding.”
VanderVliet, 444 Mich at 87, 89. Requiring the prosecution to give “pretrial
notice of its intent to introduce other acts evidence at trial” is designed to
“promote [] reliable decision making,” to “prevent[] unfair surprise,” and to “offer
[] the defense the opportunity to marshal arguments regarding both relevancy and

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       unfair prejudice.” Id. at 89 n 51; see Sabin, 463 Mich at 60 n 6. The notice must
       be “reasonable” and provided before trial, but may be provided “during trial if the
       court excuses pretrial notice on good cause shown.” MRE 404(b)(2). And as its
       plain terms make clear, this notice requirement is coextensive with and reflective
       of MRE 404(b)’s inclusionary nature, applying to “any [other-acts] evidence” the
       prosecution in a criminal case “intends to introduce at trial,” regardless of whether
       “the rationale . . . for admitting the evidence” is “mentioned in subparagraph
       (b)(1).” [People v Jackson, 498 Mich 246, 258-261; 869 NW2d 253 (2015).]

        In this case, defendant claims that reversal is required because the prosecution presented
and the trial court allowed the admission of gang-related testimony. He is partially correct—the
prosecution did present and the trial court did allow the admission of this type of testimony.
Defendant fails to acknowledge, however, that this testimony was part of evidence presented by
the prosecution regarding the federal investigation, and the record reflects that defendant’s trial
counsel expressly agreed that the admission of that evidence was proper. Consequently, this
issue is waived. People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010) (“[A] party may
not harbor error at trial and then use that error as an appellate parachute[.]”).

        In any event, we discern no error with respect to the trial court’s decision to admit
evidence regarding the federal investigation, including gang-related testimony. First, contrary to
defendant’s argument, testimony with respect to his affiliation with “the Howard Boys” was
relevant for several reasons. For example, his gang affiliation reflected on Ayers’s credibility. It
also reflected on defendant’s own credibility because it provided context to the proffer
agreement discussed above. These are non-character purposes. MRE 404(b). Without
establishing defendant’s relationship to Jackson and Ayers, as well as other individuals at issue
in this case, it is difficult to ascertain why defendant was cooperating with federal investigators
as described above. Consequently, we conclude that this testimony had a “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.

        Second, contrary to defendant’s argument, testimony with respect to his affiliation with
“the Howard Boys” was not unfairly prejudicial. Defendant vaguely points to testimony
regarding the number of homicides associated with this gang, but he overlooks his trial counsel’s
questioning in this regard, which took place before the prosecutor’s questioning at issue. Trial
counsel asked a variety of questions in an effort to point out that defendant was implicated in
only one of many homicides in the area. While this testimony was, obviously, prejudicial to an
extent, we cannot agree that it was unfairly prejudicial. MRE 403 requires that the probative
value of the evidence at issue be substantially outweighed by the danger of unfair prejudice, and,
in our view, it was not in this case.

        Defendant also seems to take issue with the prosecution’s failure to provide pretrial
notice as required by MRE 404(b). However, the prosecution’s failure in this regard is likely
attributable to its agreement with defendant’s trial counsel with respect to evidence of the federal
investigation. In any event, the prosecution’s failure in this regard was not outcome
determinative for the reasons described below. Jackson, 498 Mich 270, quoting People v
Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014) (“And while it was error for the prosecution
not to provide, and the trial court not to require, ‘reasonable notice’ of [the other-acts evidence]

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under MRE 404b(2), the defendant has not demonstrated that this error ‘more probably than
not . . . was outcome determinative.’ ”). Furthermore, nothing in the record could support a
conclusion that defendant was somehow surprised by the testimony in this regard.

       Finally, assuming error, reversal is not required because any error in this regard was
harmless. As stated above, defendant admitted his involvement in the crimes at issue. His
admission was strongly corroborated by other witnesses and other evidence. Any mention of
defendant’s gang affiliation, when compared to the substantial amount of evidence against
defendant, was simply not outcome determinative. Reversal is therefore not required.

       Affirmed.

                                                         /s/ Douglas B. Shapiro
                                                         /s/ Elizabeth L. Gleicher
                                                         /s/ Colleen A. O'Brien




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