                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 28, 2017
               Plaintiff-Appellee,

v                                                                  No. 329195
                                                                   Manistee Circuit Court
PETER LEE PETERSON,                                                LC No. 14-004443-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                  No. 329200
                                                                   Manistee Circuit Court
ROBERT SCOTT KNAUSS,                                               LC No. 14-004442-FC

               Defendant-Appellant.


Before: O’CONNELL, P.J., and MURPHY and K. F. KELLY, JJ.

PER CURIAM.

        The two defendants in this consolidated appeal, Peter Peterson and Robert Knauss, were
tried together in a single trial before separate juries. They were each convicted of first-degree
premeditated murder, MCL 750.316(1)(a), arising out of the 1995 shooting death of Vincent
Adamczak. Both defendants were sentenced to life in prison without the possibility of parole.
They appeal as of right, and we affirm.

        There was evidence presented at trial that Adamczak had his girlfriend pawn or sell guns
owned by Knauss’s grandfather, to which she had access, in order to bail Adamczak out of jail,
that defendants later rebuked, threatened, and assaulted Adamczak outside of Peterson’s home
because of what had transpired with the guns, that Knauss’s girlfriend at the time, Rose Skrzycki,
was present, that Peterson eventually retrieved a rifle from his home and went back outside
where he shot and killed Adamczak, that Knauss agreed to dig and dug a hole on the property in
which Adamczak was buried, and that defendants later removed and burned Adamczak’s body.
These events occurred in 1995.

                                               -1-
        Skrzycki testified that Peterson shot Adamczak and then told Knauss to dig the hole, with
Knauss stating, when the shot was fired, “Pete, what the f**k did you do?” Skrzycki also
indicated that perhaps Peterson had said something about digging a hole just before the shooting.
The prosecution presented testimony that Knauss had made many statements to others over the
years about the murder and disposal of the body, including statements that Knauss himself had
killed Adamczak, that Knauss had helped bury and burn the body after Peterson shot Adamczak,
and that Peterson had done the shooting, but only after Peterson had indicated that he would
shoot Adamczak if Knauss agreed to dig the hole, to which Knauss agreed. Knauss also made
statements to the police, wherein he claimed that Peterson had shot Adamczak and that, prior to
the shooting, Peterson had commented or asked about Knauss digging a hole, with Knauss
agreeing to do so, but with the belief that Peterson was only kidding and not serious about
shooting Adamczak. Neither Peterson nor Knauss testified at trial.

                    I. DOCKET NO. 329195 – DEFENDANT PETERSON

                       A. TESTIMONY OF SKRZYCKI’S ATTORNEY

        Skrzycki had made prior statements to authorities that were not consistent with her trial
testimony, suggesting in 2008 that Adamczak, whose body had not yet been located, may have
gone to Arizona to pan for gold. In 2011, Skrzycki, under an immunity agreement, claimed that
Knauss first shot Adamczak, followed by Peterson shooting Adamczak. She later added to her
account that she had retrieved the rifle from Peterson’s home when told to do so, which
concession led to withdrawal of the immunity agreement and Skrzycki herself being arrested and
charged with open murder. Subsequently, pursuant to a plea agreement whereby she pled to the
offense of accessory after the fact, Skrzycki provided authorities with the version of events that
aligned with her future trial testimony. At trial, Skrzycki’s attorney testified about the
circumstances surrounding the plea agreement and counsel’s interactions with and thoughts
regarding her client Skrzycki, including her credibility. On appeal, Peterson argues that
Skrzycki’s attorney improperly testified about prior consistent statements Skrzycki had made to
her, that the attorney also improperly vouched for Skrzycki’s veracity and truthfulness, and that
some of the testimony constituted inadmissible hearsay. As these arguments were not preserved
below, Peterson also maintains that his trial attorney was ineffective for failing to object to the
testimony.

       The prosecution effectively concedes plain error and deficient performance by trial
counsel, arguing that Peterson’s substantial rights were not affected by the testimony for
purposes of plain-error review, People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999), and that he did not incur prejudice with respect to the claim of ineffective assistance of
counsel, People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).1 We shall proceed on the


1
  In People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999), the Michigan Supreme Court
recited the applicable review standards when an evidentiary issue is preserved:

               The decision whether to admit evidence is within the trial court's
       discretion; this Court only reverses such decisions where there is an abuse of


                                                -2-
assumption that the trial court plainly erred in allowing the challenged testimony by Skrzycki’s
attorney and that trial counsel should have objected to the testimony. We conclude, however,
that Peterson has failed to establish the requisite prejudice, as necessary to warrant reversal under
either plain-error review, Carines, 460 Mich at 763-764, or ineffective-assistance review,
Carbin, 463 Mich at 600.

        We first note that, absent the testimony by Skrzycki’s attorney, the jury nonetheless had
been made fully aware, through other unchallenged testimony, of Skrzycki’s plea agreement, her
attendant statements that Peterson alone had retrieved the gun and shot Adamczak, and that the
plea agreement required her to testify truthfully at trial. Furthermore, Skrzycki’s statements to
authorities had previously implicated Peterson in the shooting; that part of her versions of the
events was unchanged. Thus, assuming that the attorney possibly and improperly swayed jurors
to conclude that Skrzycki’s trial testimony was credible, had the attorney not testified, leaving
the jurors open to perhaps finding Skrzycki more credible as to her earlier account of what had
transpired, this account still had Peterson shooting Adamczak, but simply doing so in tandem
with Knauss. Peterson has simply not demonstrated that the presumed “error affected the
outcome of the lower court proceedings,” and he certainly has not shown that the presumed error
resulted in the conviction of “an actually innocent defendant” or seriously affected the fairness
and integrity of the judicial proceedings. Carines, 460 Mich at 763. And with respect to the
claim of ineffective assistance of counsel, Peterson has not shown “the existence of a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been different.”
Carbin, 463 Mich at 600. Indeed, in regard to the question of prejudice, Peterson merely
contends in cursory fashion that the case hinged on Skrzycki’s credibility and, therefore,
allowing the testimony by Skrzycki’s attorney was prejudicial. This woefully inadequate
argument does not suffice to demonstrate the requisite prejudice. The jury was able to
independently assess Skrzycki’s credibility when she was on the stand and was instructed that it
alone was tasked with making credibility determinations. Reversal is unwarranted.

                               B. ACCOMPLICE INSTRUCTION

        M Crim JI 5.4 concerns witnesses who are undisputed accomplices, merely explaining to
the jury why they are accomplices under the law, and if the instruction is applicable under the
facts of the case, a trial judge is to proceed and also give the general cautionary instruction
regarding accomplice testimony, M Crim JI 5.6. See Use Note to M Crim JI 5.4. M Crim JI 5.5
concerns witnesses who are disputed accomplices, describing for the jury the nature of actions
that would make a witness an accomplice, asking for the jurors to determine whether the witness


       discretion. However, decisions regarding the admission of evidence frequently
       involve preliminary questions of law, e.g., whether a rule of evidence or statute
       precludes admissibility of the evidence. This Court reviews questions of law de
       novo. Accordingly, when such preliminary questions of law are at issue, it must
       be borne in mind that it is an abuse of discretion to admit evidence that is
       inadmissible as a matter of law. [Citations omitted.]




                                                 -3-
at issue was indeed an accomplice, and instructing the jury to take into consideration the general
cautionary instruction with respect to accomplices, M Crim JI 5.6, but only if the jury first finds
under M Crim JI 5.5 that the witness was actually an accomplice.

        Here, below, Peterson argued that Skrzycki was an undisputed accomplice, M Crim JI
5.4; therefore, the trial court should instruct the jury on the cautionary instruction, M Crim JI 5.6,
in conjunction with M Crim JI 5.4. Peterson indicated to the trial court that the disputed
accomplice instruction, M Crim JI 5.5, was not applicable. The trial court declined to instruct on
either M Crim JI 5.4, 5.5, or 5.6. On appeal, Peterson contends that the trial court erred in not
instructing the jury on M Crim JI 5.5 (disputed accomplices), considering that there was
evidence that Skrzycki participated or assisted in the murder, i.e., her 2011 statements that she
retrieved the rifle from Peterson’s home, which was used to shoot Adamczak. However,
Peterson waived this argument, where, as mentioned above, he asked for an instruction on M
Crim JI 5.4 and affirmatively told the court that M Crim JI 5.5 was inapplicable. Accordingly,
defendant’s waiver extinguished any error. People v Carter, 462 Mich 206, 215; 612 NW2d 144
(2000).

                               C. RIGHT OF CONFRONTATION

        Peterson next argues that the admission of certain testimonial statements made by Knauss
to the police, which were heard by Peterson’s jury, deprived him of his constitutional right to
confrontation, as Knauss had exercised his Fifth Amendment right not to testify and the
statements implicated Peterson in the murder. Peterson also maintains that trial counsel was
ineffective for failing to object to the evidence.

        Initially, we note that none of Knauss’s formal statements to the police implicating
Peterson were heard by Peterson’s jury; his jury did not hear about Knauss’s claims to police in
which he asserted that Peterson shot Adamczak. Rather, Peterson complains in regard to
testimony by officers that mentioned the fact that Knauss had made statements to the police or
had been interviewed by police, which, in conjunction with other accompanying testimony by
the officers, indirectly suggested or implied that Peterson was involved in the murder.

        Our Supreme Court in People v Nunley, 491 Mich 686, 698; 821 NW2d 642 (2012),
citing Crawford v Washington, 541 US 36, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004),
observed that “[t]he United States Supreme Court has held that the introduction of out-of-court
testimonial statements violates the Confrontation Clause; thus, out-of-court testimonial
statements are inadmissible unless the declarant appears at trial or the defendant has had a
previous opportunity to cross-examine the declarant.” “Statements taken by police officers in the
course of interrogations are . . . testimonial under even a narrow standard.” Crawford, 541 US at
52. We have thoroughly reviewed the testimony cited by Peterson in support of his argument
and conclude that none of the references to Knauss’s statements to the police and surrounding
testimony, as heard by the Peterson jury, facially, expressly, implicitly, or inferentially
incriminated Peterson or implicated him in the murder; therefore, there was no Confrontation
Clause violation. See Richardson v Marsh, 481 US 200, 206-208; 107 S Ct 1702; 95 L Ed 2d
176 (1987); Bruton v United States, 391 US 123, 135-136; 88 S Ct 1620; 20 L Ed 2d 476 (1968);
People v Frazier (After Remand), 446 Mich 539, 544-550; 521 NW2d 291 (1994); People v
Banks, 438 Mich 408, 414-421; 475 NW2d 769 (1991). On this unpreserved issue, we hold that

                                                 -4-
Peterson has failed to establish plain error. Carines, 460 Mich at 763-764. And assuming that
Knauss’s statements that linked the killing to Peterson’s land can be viewed as giving rise to an
inference that Knauss had informed the police that Peterson committed or was necessarily
involved in the murder, the tenuous nature of the assumed correlation, along with the untainted
evidence of guilt, render any error harmless, lacking prejudicial force. Id.2 Given our ruling that
there was no error or prejudice shown, Peterson’s associated argument that counsel was
ineffective for failing to object to the testimony also necessarily fails. Carbin, 463 Mich at 600;
People v Ackerman, 257 Mich App 434, 455; 669 NW2d 818 (2003) (counsel is not ineffective
for failing to raise a futile objection).

                                          D. HEARSAY

       Finally, Peterson contends that the trial court erred by allowing the admission of
Knauss’s nontestimonial statements made to various witnesses, where their testimony implicated
Peterson in the murder and constituted unreliable hearsay. The trial court allowed the testimony
under MRE 804(b)(3), which concerns unavailable declarants and provides:

              A statement which was at the time of its making so far contrary to the
       declarant's pecuniary or proprietary interest, or so far tended to subject the
       declarant to civil or criminal liability, or to render invalid a claim by the declarant
       against another, that a reasonable person in the declarant's position would not
       have made the statement unless believing it to be true. A statement tending to
       expose the declarant to criminal liability and offered to exculpate the accused is
       not admissible unless corroborating circumstances clearly indicate the
       trustworthiness of the statement.

        In his appellate brief, Peterson argues that, “[a]s explained in People v Taylor, 482 Mich
368, 376[; 759 NW2d 361] (2008), a statement against penal interest may be admitted into
evidence pursuant to MRE 804(b)(3) if the statement[] bear[s] sufficient indicia of reliability
under the factors articulated in People v Poole, 444 Mich 151[; 506 NW2d 505] (1993).” This is
not a correct statement of the law, given that Taylor partially overruled Poole in regard to
situations like those posed in the instant case, where the final sentence of MRE 804(b)(3)
(statement offered to exculpate accused) is not at issue, and where the statement is not only
against the penal interests of the declarant, here Knauss, but is offered to inculpate the accused,
here Peterson. Taylor, 482 Mich at 378 (observing that the United States Supreme Court in
Crawford had overruled the precedent relied on in Poole and “[t]hus, the holding in Poole that a
codefendant’s nontestimonial statement is governed by both MRE 804(b)(3) and the


2
  The trial court did instruct Peterson’s jury that it could consider Knauss’s statements against
Peterson, but it is clear to us that the statements intended to be covered by that instruction
pertained to those statements made to persons other than police officers, which we address infra.
To the extent that a juror may have perhaps considered the instruction in relation to Knauss’s
statements to police, reversal is still unwarranted, as the statements did not incriminate Peterson,
i.e., they were not made “against” Peterson, or were so lacking in inculpatory character that
prejudice cannot be shown.


                                                -5-
Confrontation Clause is no longer good law”). The indicia-of-reliability test set forth in Poole,
so as to protect the constitutional right of confrontation, was therefore eliminated by the Taylor
Court in light of Crawford with respect to nontestimonial statements, leaving an analysis that
only requires contemplation of the applicability of MRE 804(b)(3). Taylor, 482 Mich at 378
(“Accordingly, the admissibility of the statements . . . is governed solely by MRE 804(b)(3).”).

         There is no dispute that Knauss was “unavailable,” MRE 804(a)(1), and there can be no
dispute that the challenged statements made by Knauss and heard by the Peterson jury tended to,
at the time of their making, subject Knauss to criminal liability, such that a reasonable person in
Knauss’s position would not have made the statements unless believing them to be true, MRE
804(b)(3). The question becomes whether those portions of the statements pertaining to and
implicating Peterson are also encompassed by MRE 804(b)(3) because of the fact that the
statements generally were against Knauss’s penal interests.3 Our Supreme Court in Taylor
employed the same test set forth in Poole, asking whether the declarant’s inculpation of his or
her accomplice was made in the context of a “narrative of events,” which narrative was against
the declarant’s penal interests. Taylor, 482 Mich at 379-380. The Taylor Court affirmed this
Court’s determination that the statements in dispute were admissible under MRE 804(b)(3),
considering that the statements were provided in a narrative, with portions inculpating the
declarant and portions inculpating the declarant’s codefendants. Id. at 380.

        Here, Knauss made nontestimonial statements to others that Peterson shot Adamczak, but
only after Peterson had indicated that he would shoot Adamczak if Knauss agreed to dig the
hole, to which Knauss agreed. Knauss also made statements that Peterson shot Adamczak and
that Knauss helped bury and later burn Adamczak’s body. 4 The portions of the statements that
inculpated Knauss (against his penal interests) and those that inculpated Peterson were all part of
a single narrative of events. Indeed, the two portions cannot stand alone, as the narrative would
become nonsensical if a division were attempted. Accordingly, the trial court did not err in
admitting Knauss’s nontestimonial statements.

                     II. DOCKET NO. 329200 – DEFENDANT KNAUSS

                       A. INEFFECTIVE ASSISTANCE OF COUNSEL

        Knauss first argues that trial counsel was ineffective, given that he failed to offer a
rational defense theory to the jury, failed to object to inadmissible and devastating evidence,
failed to conduct effective cross-examination, and made bizarre and inappropriate comments to


3
  Peterson’s argument on appeal focuses exclusively on the irrelevant issue regarding whether
the statements had an indicia of reliability; there is no argument that tackles the applicability of
MRE 804(b)(3). Accordingly, we need not go further; however, we shall proceed, as it is clear
that MRE 804(b)(3) permitted admission of the statements.
4
  As indicated earlier, Knauss additionally made statements that he had killed Adamczak, which
statements are not pertinent to this particular issue, given that they did not implicate Peterson in
the murder.


                                                -6-
the jury. Knauss contends that counsel’s performance was so deficient that he was effectively
absent from trial, thereby entitling Knauss to a new trial.

        The trial court conducted a two-day Ginther5 hearing on Knauss’s motion for new trial,
and it subsequently issued a 28-page written opinion that thoroughly and thoughtfully examined
the claim of ineffective assistance of counsel. With respect to the trial court’s conclusion that
Knauss failed to establish the requisite prejudice and the reasons proffered by the court in
support of that conclusion, we fully agree and adopt the court’s ruling as our own. Accordingly,
we hold that, assuming ineffective assistance of counsel, Knauss has not shown “the existence of
a reasonable probability that, but for counsel’s error[s], the result of the proceeding would have
been different.” Carbin, 463 Mich at 600. Reversal is unwarranted.

                              B. PROSECUTORIAL MISCONDUCT

       Knauss next maintains that the prosecutor committed misconduct throughout the trial,
claiming numerous instances of misconduct. In People v Dobek, 274 Mich App 58, 63-64; 732
NW2d 546 (2007), this Court stated:

                 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. A defendant's opportunity for a fair trial can be
         jeopardized when the prosecutor interjects issues broader than the defendant's
         guilt or innocence. Issues of prosecutorial misconduct are decided case by case,
         and this Court must examine the entire record and evaluate a prosecutor's remarks
         in context. The propriety of a prosecutor's remarks depends on all the facts of the
         case. A prosecutor's comments are to be evaluated in light of defense arguments
         and the relationship the comments bear to the evidence admitted at trial.
         [Citations and quotation marks omitted.]

        Knauss first argues that the prosecutor engaged in misconduct by eliciting testimony of
prior bad acts committed by Knauss, including abuse of family members, brawling, various
criminal offenses, and violation of probation. He contends that the evidence was inadmissible
under MRE 404(b)(1) and that, under MRE 404(b)(2), the prosecutor never provided the
required pretrial notice as necessary to introduce the evidence. “A prosecutor’s good-faith effort
to admit evidence does not constitute misconduct.” Dobek, 274 Mich App at 70. And a
prosecutor does not act in bad faith if evidence is arguably admissible. Id. “The prosecutor is
entitled to attempt to introduce evidence that he legitimately believes will be accepted by the
court, as long as that attempt does not prejudice the defendant.” People v Noble, 238 Mich App
647, 660-661; 608 NW2d 123 (1999).

         We initially note that Knauss actually utilized the challenged evidence at trial, arguing
that it showed that while Knauss was a brawler and had a tendency to get in trouble with the law,
he was simply not a killer. Under these circumstances, a strong argument can be made that


5
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -7-
Knauss waived the issue below. Carter, 462 Mich at 215. Additionally, the issue of prior bad
acts, and the failure to object to their introduction, formed part of the basis of Knauss’s claim of
ineffective assistance of counsel, which we rejected for failure to establish prejudice. Therefore,
plain-error review likewise results in a failure to show the necessary prejudice. Carines, 460
Mich at 763. We find it unlikely that the evidence diverted the jury from an objective appraisal
of Knauss’s guilt or innocence in light of Knauss’s many incriminating statements to
acquaintances and the police.

        Knauss also argues that the prosecutor improperly elicited “false” testimony from several
witnesses who indicated that Skrzycki had accused Knauss of shooting Adamczak. Knauss
complains that the challenged testimony was false because the prosecutor’s theory was that
Peterson had shot Adamczak. “It is well settled that a conviction obtained through the knowing
use of perjured testimony offends a defendant's due process protections guaranteed under the
Fourteenth Amendment.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009).
Knauss’s argument lacks merit. Skrzycki admitted at trial that she had previously claimed that
Knauss shot Adamczak, and witnesses confirmed that she had made such statements. Even
assuming that Skrzycki’s prior statements were false, the trial testimony that she previously
made such statements has not been shown to be false. Moreover, the testimony regarding
Skrzycki’s prior statements was not offered to prove that Knauss shot Adamczak. Rather, it was
elicited as part of presenting the jury with a complete account of the police interrogations of
Skrzycki, demonstrating that she had changed her story multiple times and ultimately recanted
her assertion that Knauss had shot Adamczak. On this record, there was no false testimony, no
prosecutorial misconduct, and no plain error.

        Knauss next contends that the prosecutor made improper comments during voir dire by
stating that “Confession is good for the soul” and “We don’t speak lightly against ourselves.”
Viewed in context, the prosecutor was simply attempting to explore the jurors’ abilities to weigh
and consider the testimony relating to Knauss’s statements and admissions, which seems at least
somewhat relevant to a juror’s capacity to serve as a fair and impartial juror. Knauss has failed
to offer any argument or analysis with respect to why the prosecutor’s remarks and line of
inquiry were improper when viewed in context. Knauss fails to show misconduct and plain error
affecting his substantial rights.

        Knauss further argues that the prosecutor’s comment that characterized the role of the
prosecutor as “present[ing the evidence] and the role of the defense to argue[] his client’s
interest” improperly attacked the role of defense counsel. A prosecutor may not personally
attack the credibility of defense counsel, or suggest that defense counsel is intentionally
attempting to mislead the jury. People v Kennebrew, 220 Mich App 601, 607; 560 NW2d 354
(1996); People v Dalessandro, 165 Mich App 569, 580; 419 NW2d 609 (1988). The prosecutor
merely advised the jurors that prosecutors do not and never convict, as that is the role of the jury.
The prosecutor further explained:

               We all have a division of labor. We all have a role. I present. The defense
       argues his client’s interests. And the judge gives law. It’s not all centralized.
       There’s like a division or authority or power that way. Your job as jurors is not to
       try to do other jobs, it’s just to decide the facts of the case. Does that make sense
       to you?

                                                -8-
Knauss has failed to explain how the above comments by the prosecutor “denigrated the
defense.” There was no prosecutorial misconduct and no plain error affecting Knauss’s
substantial rights.

       Next, Knauss argues that the prosecutor vouched for the strength of the case when he
argued, “I think and sincerely believe that we – that the evidence in the case has proven Robert
Scott Knauss guilty.” When viewed in context, which included the prosecutor stating that he
would point to the evidence that backs his view, the prosecutor was not in any way personally
vouching for Knauss’s guilt. Because the prosecutor predicated his remarks on the evidence that
was presented at trial, Knauss has not demonstrated a plain error.

        Finally, Knauss maintains that the prosecutor improperly appealed for sympathy for
Adamczak. “Appeals to the jury to sympathize with the victim constitute improper argument.”
People v Watson, 245 Mich App 572, 591; 629 NW2d 411 (2001). To the extent that the
prosecutor may have crossed a line with a few brief references, Knauss cannot show that it
affected his substantial rights, resulted in the conviction of an actually innocent defendant, or
seriously affected the fairness and integrity of the judicial proceedings. Carines, 460 Mich at
763.

                           C. PRIOR BAD ACTS AND HEARSAY

       Lastly, Knauss contends that the trial court erred by admitting testimony regarding
multiple unrelated bad acts, as well as hearsay testimony that Knauss shot Adamczak. We have
already effectively addressed and rejected the argument that introduction of Knauss’s prior bad
acts warrants reversal. And as to Knauss’s assertion that the testimony indicating that Skrzycki
had earlier told authorities that Knauss shot Adamczak constituted hearsay, the testimony was
not admitted to prove the truth of the matter asserted, MRE 801(c), but to show the history of
Skrzycki’s statements to police, and Skrzycki testified that she had lied about her claim that
Knauss shot Adamczak. Moreover, there was testimony that Knauss himself had made
statements to others that he killed Adamczak. Reversal is unwarranted.

       Affirmed.

                                                           /s/ Peter D. O'Connell
                                                           /s/ William B. Murphy
                                                           /s/ Kirsten Frank Kelly




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