               If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                    revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 21, 2020
                 Plaintiff-Appellee,

v                                                                    No. 343734
                                                                     Ingham Circuit Court
MARCELL DJON DAVIS,                                                  LC No. 17-000114-FC

                 Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

                 Plaintiff-Appellee,

v                                                                    No. 346123
                                                                     Ingham Circuit Court
DERABIAN B. CARTHELL,                                                LC No. 17-000110-FC

                 Defendant-Appellant.


Before: CAMERON, P.J., and SHAPIRO and SWARTZLE, JJ.

PER CURIAM.

         In Docket No. 343734, defendant Marcell Djon Davis appeals his convictions by jury of
first-degree felony murder, MCL 750.316(1)(b); armed robbery, MCL 750.529; and possession
of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court
sentenced Davis to life imprisonment without the possibility of parole for murder, to 300 to 500
months’ imprisonment for robbery, and to two years’ imprisonment for felony-firearm. In
Docket No. 346123, defendant Derabian B. Carthell appeals his convictions by jury1 of first-
degree felony murder; armed robbery; second-offense felony-firearm (“felony-firearm”), MCL


1
    Davis and Carthell were tried separately.



                                                 -1-
750.227b; carrying a concealed weapon (CCW), MCL 750.227; and felon in possession of a
firearm (felon-in-possession), MCL 750.224f. The trial court, applying a second-offense
habitual offender enhancement under MCL 769.10, sentenced Carthell to life imprisonment
without the possibility of parole for murder, to 281 to 880 months’ imprisonment for robbery, to
five years’ imprisonment for felony-firearm, to 46 to 90 months’ imprisonment for CCW, and to
36 to 90 months’ imprisonment for felon-in-possession. We affirm in both appeals.

        The convictions arise from a shooting death and robbery in Lansing, Michigan, on
November 21, 2016. Evidence showed that the homicide victim and the robbery victim were
sitting in a Jeep in front of a marijuana dispensary when Davis and Carthell approached the
vehicle. The robbery victim was in the driver’s seat and the homicide victim was in the front
passenger seat. The prosecutor’s theory was that Carthell approached the passenger side of the
vehicle and dragged the homicide victim from the vehicle while Davis opened the rear, driver’s-
side door, briefly entered the vehicle, and shot the homicide victim from inside the vehicle as he
was bent over and turned away. 2 After the murder, Davis and Carthell robbed the robbery
victim, and fled the scene. At Davis’s trial, Davis’s attorney argued that Davis had been
misidentified as a perpetrator, and Carthell’s attorney argued at Carthell’s trial that Carthell had
been misidentified as a perpetrator. Carthell and Davis were both convicted as charged and
sentenced to terms of imprisonment. These appeals followed.

                       I. DEFENDANT DAVIS (DOCKET NO. 343734)

                                A. LAY OPINION TESTIMONY

        Davis first argues that Detective Quincy Scroggins improperly identified Davis on
surveillance footage from the marijuana dispensary and improperly invaded the province of the
jury by giving an opinion on the ultimate issue to be decided in the case, i.e., the identity of the
shooter. According to Davis, the improper opinion testimony violated MRE 701.3 Davis did not
object below to the testimony by Detective Scroggins that he now deems improper. As such, the
issue of its admission is not preserved, People v Metamora Water Serv, Inc, 276 Mich App 376,
382; 741 NW2d 61 (2007), and we review the issue for plain error affecting substantial rights,
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).




2
  The robbery victim provided identification testimony, but he was not entirely sure which of the
two perpetrators—Davis or Carthell—shot the homicide victim. The robbery victim testified
that both perpetrators had guns. The juries at both trials were given an aiding-and-abetting
instruction.
3
 Davis also argues that admission of the opinion testimony into evidence violated his right to
due process and denied him a fair trial. However, because Davis has fully abandoned the
constitutional argument on appeal, we need not address the argument. See Prince v MacDonald,
237 Mich App 186, 197; 602 NW2d 834 (1999).




                                                -2-
Under the plain-error doctrine, reversal is warranted if a “clear or obvious” error occurred




                                        -3-
that “affected the outcome of the lower court proceedings.” Id. And even if this standard is
satisfied,

       an appellate court must exercise its discretion in deciding whether to reverse.
       Reversal is warranted only when the plain, forfeited error resulted in the
       conviction of an actually innocent defendant or when an error seriously affected
       the fairness, integrity or public reputation of judicial proceedings independent of
       the defendant’s innocence. [Id. at 763-764 (quotation marks and brackets
       omitted).]

        Davis contends that the alleged identification by Detective Scroggins of Davis on the
surveillance footage was improper opinion testimony because the jury was in just as good of a
position as Detective Scroggins to make an identification. Consequently, Davis argues that
Detective Scroggins’s testimony invaded the province of the jury.

        MRE 701 provides that “[i]f the witness is not testifying as an expert, the witness’
testimony in the form of opinions or inferences is limited to those opinions or inferences which
are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue.” However, “a witness cannot
express an opinion on the defendant’s guilt or innocence of the charged offense.” People v
Bragdon, 142 Mich App 197, 199; 369 NW2d 208 (1985). “ ‘[W]here a jury is as capable as
anyone else of reaching a conclusion on certain facts, it is error to permit a witness to give his
own opinion or interpretation of the facts because it invades the province of the jury.’ ” People v
Drossart, 99 Mich App 66, 80; 297 NW2d 863 (1980) (citations omitted); see also People v
Perkins, 314 Mich App 140, 161-162; 885 NW2d 900 (2016) (citing Drossart for the same
proposition), superseded in part on other grounds sub nom People v Hyatt, 316 Mich App 368;
891 NW2d 549 (2016).

         In People v Fomby, 300 Mich App 46, 49-53; 831 NW2d 887 (2013), a police officer’s
narrative description of a surveillance video and the identification of suspects in still images
captured from the video were held to be admissible lay testimony. On appeal, the defendant
argued that because his identity was at issue, the officer’s testimony invaded the province of the
jury. Id. at 48. This Court disagreed, explaining that the testimony was “rationally based on
[the officer’s] perception” of the video because he had watched the video multiple times and had
used it to produce the still images. Id. at 50-51. Furthermore, this Court held that the officer’s
testimony was “intended to provide a clearer understanding” of whether the suspects had visited
the scene before the crime, noting that the original video was approximately six hours long and
that the officer reached his conclusions only after scrutinizing the entire video several times. Id.
at 51-52. Finally, this Court explained that the testimony did not invade the province of the jury
because the officer did not identify a suspect in the video as the defendant. Id. at 53. Rather, he
merely opined that the individuals seen in a video of the crime were the same individuals seen in
the still photographs he created from earlier surveillance footage. Id.

        Conversely, in Perkins, this Court held that the trial court’s decision to allow an officer’s
opinion testimony was an abuse of discretion. Perkins, 314 Mich App at 160. The officer in
Perkins affirmatively identified the defendant as the person shown in a surveillance photograph
after the prosecutor asked the officer, “[C]an you tell us who is coming down these stairs when

                                                -4-
you can see them?” Id. at 160-161. Citing MRE 701 and Fomby, this Court held that the
officer’s testimony “invaded the province of the jury” because the officer “affirmatively
identified [the defendant] as the individual in the stairwell.” Id. at 161. This Court distinguished
the officer’s testimony from “the witness in Fomby who testified that the individual in the video
footage was the same individual in still images but did not specifically identify the defendant as
the individual in the images . . . .” Id. The Perkins Court explained:

               [The officer] could properly comment that, based on his experience, the
       individual appeared to be concealing a weapon, but [the officer] should not have
       been allowed to identify [the defendant] as that individual. “[W]here a jury is as
       capable as anyone else of reaching a conclusion on certain facts, it is error to
       permit a witness to give his own opinion or interpretation of the facts because it
       invades the province of the jury.” [Drossart, 99 Mich App at 80.] There was
       nothing about the images (i.e. poor quality of the images, defendant wearing a
       disguise) that necessitated [the officer]’s opinion. This is evidenced by the trial
       court’s own statement during defense counsel’s objection that “I would have no
       trouble making an identification myself.” [Perkins, 314 Mich App at 161-162.]

       However, because evidence of the defendant’s guilt was “overwhelming” and his identity
was not in dispute, the Perkins Court held that the error was “ultimately of no consequence.” Id.
at 162-163.

        The surveillance footage at issue in this case shows that the homicide victim and the
robbery victim were sitting in a car parked in front of the marijuana dispensary and that they
remained there for close to 40 minutes. The robbery victim was seated in the driver’s seat and
the homicide victim was seated in the front, passenger seat. After more than 38 minutes passed,
the individual identified as Carthell was seen walking across the parking lot and away from the
vehicle.4 Later, the rear, driver’s side door was opened. Because of the camera angle and the
manner in which the vehicle was parked, only a portion of the rear, driver’s side door was
visible. The surveillance footage showed that the rear, driver’s side door was opened, but it did
not show what happened behind the door or in the backseat of the vehicle. Almost immediately
after the rear door was opened, the suspect identified as Carthell approached the front, passenger
side door. The front, passenger side door was opened, and a physical struggle between the
homicide victim and the individual identified as Carthell ensued, resulting in the removal of the
homicide victim from the Jeep. After the homicide victim fell to the ground, the rear, driver’s
side door closed and the individual identified as Davis walked from the rear of the vehicle
toward the passenger side, where the homicide victim was located.

         Detective Scroggins investigated the crimes at issue in this case. Before Detective
Scroggins testified at trial, the surveillance video was played for the jury. Detective Scroggins
testified that he had viewed the surveillance video several times and had observed enhanced
images from the footage. During Detective Scroggins’s direct examination, the prosecutor


4
  Carthell’s girlfriend identified him after she was shown photograph stills from the surveillance
footage.


                                                -5-
showed Detective Scroggins a series of photograph stills from the surveillance video. Detective
Scroggins described the sequence of events based on the photograph stills. More specifically, he
noted that the rear, driver’s side door of the vehicle had been opened and that the suspect later
identified as Carthell had approached the passenger side of the vehicle. Detective Scroggins
testified that the homicide victim had his back to Davis at certain points in the video. Detective
Scroggins described the struggle that took place between the individual identified as Carthell and
the homicide victim, including the moment Detective Scroggins believed that the homicide
victim was shot. Detective Scroggins believed that the “shot was actually taken from Marcell
Davis at this particular time or during this period.” Detective Scroggins noted that the rear,
driver’s side door of the vehicle closed at one point. Detective Scroggins then stated “At this
point it appears that Marcell Davis is approaching the passenger side of the vehicle.”

        Davis argues that Detective Scroggins’s identification testimony impermissibly invaded
the province of the jury because the jury was equally positioned to identify Davis. We agree.
Like the testimony of the officer in Fomby, Detective Scroggins’s testimony was rationally based
on his familiarity with the photograph stills because he testified that he had observed the video
footage several times. See Fomby, 300 Mich App at 50-51. Thus, narration was helpful in
providing the jury with a clearer understanding of what it was viewing and therefore helped them
to understand the relevance of the photographs. See id. at 51-52. However, the photograph stills
admitted at trial were of high quality. The events that transpired, including the struggle that
ensued between the person identified as Carthell and the homicide victim and the opening of the
rear, driver’s side door, was depicted clearly in the footage. After the homicide victim fell to the
ground, a tall, slender individual was seen moving from the rear of the vehicle to the front,
passenger side door, where Carthell was located. Unlike in Fomby and like in Perkins, Detective
Scroggins specifically identified Davis as the individual who moved to the passenger side of the
vehicle after the homicide victim was shot. Therefore, we agree that Detective Scroggins’s
testimony identifying Davis as the person depicted in the photograph stills impermissibly
invaded the province of the jury. MRE 701; Fomby, 300 Mich App at 53. Indeed, “the issue of
whether the defendant in the courtroom was the person pictured in a surveillance photo [is] a
determination properly left to the jury.” Id. at 52. There is no support in the record that
Detective Scroggins was in any better position than the jury to make the identification. See id. at
52-53.

         Even so, we disagree that this error affected Davis’s substantial rights. “Substantial
rights are affected when the defendant is prejudiced, meaning the error affected the outcome of
the trial.” People v Jones, 297 Mich App 80, 83; 823 NW2d 312 (2012). The primary purpose
of Detective Scroggins’s testimony was to explain the events depicted in the photograph stills,
not to establish Davis’s identity. Although Detective Scroggins did identify Davis, he only did
so on two discrete occasions. Furthermore, before Detective Scroggins testified at trial, the
robbery victim identified Davis as the man who opened the rear, driver’s side door of the vehicle.
The robbery victim indicated that Davis was holding a gun and wearing a black hooded
sweatshirt and a hat. After viewing the surveillance video in the presence of the jury, the
robbery victim identified Davis as the individual who could be seen walking from the rear of the
vehicle to the passenger side after the homicide victim was shot. The robbery victim identified
Davis as the suspect in the video wearing a dark colored shirt and a hat. The robbery victim
testified at trial that he was 100 percent certain that Davis was the individual “ in the black
hoodie . . . .” In fact, the robbery victim also identified Davis in a photographic lineup, at the

                                                -6-
preliminary examination, and at trial. The robbery victim testified that he saw Davis’s face, that
it was “hard to scratch [it] out [of his] memory,” and that he saw Davis in his nightmares.
Unlike Detective Scroggins, the robbery victim was in a better position than the jury to identify
Davis in the surveillance video because he was present at the scene and testified that he was able
to observe Davis. See Fomby, 300 Mich App at 52-53. Given these circumstances, we conclude
that Detective Scroggins’s references to Davis, although improper, did not substantially affect
Davis’s substantial rights. Therefore, this argument must fail.

         Davis next argues that his trial attorney was ineffective for failing to object to Detective
Scroggins’s identification testimony because it usurped the role of the jury on the ultimate issue,
i.e., the identity of the shooter. Davis failed to raise an ineffective assistance of counsel claim in
the trial court in connection with a motion for a new trial or a Ginther5 hearing. Therefore, our
review of this issue is limited to mistakes apparent on the record. People v Heft, 299 Mich App
69, 80; 829 NW2d 266 (2012). “To demonstrate ineffective assistance of counsel, a defendant
must show that his or her attorney’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that this performance caused him or her
prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013). “To demonstrate
prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the
proceedings would have been different.” Id. As already discussed, Detective Scroggins’s
testimony did not affect the outcome of trial. Therefore, there is not a reasonable probability
that, but for counsel’s failure to object to the testimony, the result of the proceedings would have
been different. Because Davis cannot establish that he was prejudiced, his claim of ineffective
assistance of counsel in relation to defense counsel’s failure to object to Detective Scroggins’s
identification testimony must fail.

        Davis next argues that Detective Scroggins provided improper testimony when he
explained that his investigation led him to believe that Davis was the shooter because this was
the ultimate issue to be determined by the jurors. We disagree. Although “a witness cannot
express an opinion on the defendant’s guilt or innocence of the charged offense,” Bragdon, 142
Mich App at 199, “[t]estimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact,” MRE 704.
In this case, the ultimate issue was whether Davis was present at the scene and shot the homicide
victim. When Detective Scroggins was asked why he concluded that Davis shot the homicide
victim, Detective Scroggins noted that Davis’s DNA was located on 9-millimeter bullets that
were found at a residence associated with Davis. Detective Scroggins also noted the statements
of the robbery victim regarding the murder and robbery, the robbery victim’s identification of
Davis following a photo lineup, and the fact that a 9-millimeter bullet entered “the back side of
[the homicide victim] and . . . exited from the chest area. . . .” Thus, Detective Scroggins’s
testimony was that, in light of all of this information, it was Davis, and not Carthell, who shot the
homicide victim. Detective Scroggins did not testify that Davis was guilty of the charged
crimes, all of which entailed consideration of legal criteria and elements other than discharge of a




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


                                                 -7-
gun. Thus, because the evidence was not objectionable under MRE 704, we conclude that plain
error did not occur.

        Furthermore, even if plain error occurred with respect to this testimony, we conclude that
Davis cannot establish that his substantial rights were affected given the overwhelming evidence
of his guilt. Evidence at trial supported that Davis, Davis’s brother, and Carthell made
arrangements for Carthell and Davis to be present at the marijuana dispensary in order to rob the
homicide victim. Prior to his death, the homicide victim identified Davis as the person who shot
him, and the autopsy report revealed that his death was caused by a gunshot wound. More
specifically, a 9-millimeter bullet entered in his right, lower back and exited on the left side of
his chest. Testimony at trial supported that the trajectory of the bullet could have been caused by
a shooter firing at the homicide victim’s back, while he was bent over and leaning forward. The
robbery victim testified at trial that Davis was the person who entered the rear, driver’s side of
the vehicle. The robbery victim further identified Davis as holding a gun at that time. After the
homicide victim was shot, Carthell was identified as the person on the surveillance video going
through the homicide victim’s pockets. Davis held the robbery victim at gunpoint and took his
wallet, cell phone, and keys. Davis and Carthell then fled the scene. The robbery victim
identified Davis in a photographic lineup, at the preliminary examination, and at trial. The
robbery victim testified that he saw Davis’s face, that it was “hard to scratch [it] out [of his]
memory,” and that he saw Davis in his nightmares.

        Forensic evidence further established Davis’s involvement in the murder. A single, spent
Luger 9-millimeter shell casing was located in the backseat of the vehicle. After executing a
search of a residence associated with Davis, law enforcement located 15 Luger 9-millimeter
cartridges. Davis’s DNA was found on some of the 9-millimeter cartridges. Furthermore, tool
marks on the spent shell casing recovered in the back seat of the Jeep matched tool marks on two
of the Luger 9-millimeter cartridges that were found at the residence associated with Davis.
Marks on the spent casing and two of the unfired cartridges were consistent with having been
loaded into the same firearm magazine and chambered in the same firearm. Finally, as discussed
below, after the crimes occurred, Davis fled from law enforcement on two separate occasions
before he was finally apprehended. See People v Unger, 278 Mich App 210, 226; 749 NW2d
272 (2008) (holding that evidence of flight is admissible to show consciousness of guilt).

        Because Davis cannot establish plain error affecting his substantial rights, this argument
must fail. Consequently, Davis’s claim that his trial counsel was ineffective for failing to object
to Detective Scroggins’s testimony that he believed that Davis shot the homicide victim must
also fail. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (holding that
trial counsel is not ineffective for failing to make a futile objection).

                                    B. FLIGHT EVIDENCE




                                                -8-
       Davis contends that evidence and arguments about Davis’s evasion of police should not
have been allowed at trial because it was irrelevant and violated MRE 403.6 We review this
unpreserved issue under the plain-error doctrine of Carines, 460 Mich at 763-764.

        A witness testified that the suspects ran from the scene of the shooting. Evidence was
introduced that Davis fled from police in a vehicle and on foot on two occasions in the weeks
after the murder-robbery. Also, a former police officer testified that Davis stated that, on the day
of his arrest, he had intended to run from the arresting officers but did not flee because he saw a
police dog. The prosecutor elicited testimony that multiple agencies had been looking for Davis.
During closing arguments, the prosecutor argued:

               How does the evidence that [Davis] ran from the police on November 30,
       December 2nd fit in? How does the fact that he was planning to run on December
       10 when he was located at 915 North Walnut fit in? Well, people can certainly
       run or hide for innocent reasons, such as panic, mistake, or fear. People may also
       run because they know they are guilty of the crimes that they are wanted for.
       People can also run and hide because they are conscious of their own guilt, and in
       this case that is exactly what the defendant did.

               The defendant has no duty to prove his innocence or do anything at all, but
       ask yourself, from a common sense perspective, who goes to such lengths to run
       and hide like this when so many people are looking for him? Is it the person who
       is just making a small mistake or is a little bit afraid or is having a small panic? Is
       it the person who is conscious of his own guilt, who knows what he did and
       knows what’s coming next? Marcell had a good reason to run because the
       evidence did catch up to him.

       The trial court gave the following instruction regarding flight:

               There has been some evidence that defendant tried to hide, ran away, or
       hid after the alleged crime or after the police tried to arrest him. This evidence
       does not prove guilt. A person may run or hide for innocent reasons such as
       panic, mistake, or fear.

               However, a person may also run or hide because of a consciousness of
       guilt. You must decide whether the evidence is true, and if true, whether it shows
       that the defendant had a guilty state of mind.

       Evidence of flight is admissible to show consciousness of guilt. Unger, 278 Mich App at
226. Contrary to Davis’s implication, there was indeed evidence of actual flight in the present
case. Davis relies on the case of People v Hall, 174 Mich App 686, 691; 436 NW2d 446 (1989),


6
 Davis also argues that admission of the flight evidence violated his right to due process and
denied him a fair trial. However, because Davis has fully abandoned the constitutional argument
on appeal, we need not address the argument. See Prince, 237 Mich App at 197.


                                                -9-
in support of his argument that the trial court should not have allowed evidence of him fleeing
the police. However, in Hall, the evidence showed that the defendant did not “fear
apprehension” but rather “merely walked away” from the crime scene after allegedly committing
arson. The Court in Hall concluded that a flight instruction was therefore unwarranted. Id. In
this case, a witness testified that the suspects “took off running,” and there was additional
evidence of Davis’s attempts to evade police. Thus, Hall is clearly distinguishable.

        Davis also relies on People v Cammarata, 257 Mich 60; 240 NW 14 (1932). In that case,
the defendant had failed to appear before the trial court and had forfeited his bond on a number
of occasions, and the prosecutor argued that this was “not consistent with innocence.” Id. at 65.
The defendant argued that the improper introduction of evidence of the forfeited bonds, “coupled
with the argument of the prosecuting attorney,” required reversal. Id. at 65-66. The Cammarata
Court stated that “[e]vidence of flight is admissible,” and it discussed various cases dealing with
flight and with bond forfeiture. Id. at 66-72. The Court ruled, “Standing alone, evidence of bail
forfeiture would not be admissible. In view of defendant’s flight and arrest, which was not
disputed, it was admissible as showing [the] defendant’s subsequent conduct indicating
consciousness of guilt.” Id. at 74. Thus, Cammarata does not support Davis’s position; rather, it
supports the prosecution’s position. Indeed, evidence of Davis’s separate acts of flight was
relevant to show consciousness of guilt. Id.; Unger, 278 Mich App at 226.

        Davis contends that even if otherwise admissible, the evidence of flight should have been
excluded under MRE 403, which states, in pertinent part, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]”
The Supreme Court has explained that evidence is “probative” if it makes the existence of a
consequential fact more probable than it would be without the evidence. People v Feezel, 486
Mich 184, 197; 783 NW2d 67 (2010). The Michigan Supreme Court has noted that MRE 403
does not prohibit prejudicial evidence but only prohibits evidence that is unfairly prejudicial. Id.
at 198. This unfairness arises if there is a danger that marginally probative evidence will be
given undue weight by the jury. Id. “[T]he prosecution does not have to use the least prejudicial
evidence to make out its case.” People v Cameron, 291 Mich App 599, 611; 806 NW2d 371
(2011).

        Given that Davis’s defense was misidentification, the evidence of consciousness of guilt
made it more probable that Davis was the perpetrator. This evidence was highly probative, as
opposed to merely marginally probative, and we therefore conclude that the evidence was not
barred by MRE 403. Furthermore, any danger of unfair prejudice was lessened by the trial
court’s clear instruction that flight alone “does not prove guilt” and that a person may run for
innocent reasons. Id. at 612. The prosecutor, too, noted that people sometimes run for innocent
reasons, but then went on to argue that in this case, Davis’s multiple fleeing incidents showed a
consciousness of guilt. Given all the circumstances, there was no plain error with regard to the
introduction of the flight evidence and the prosecutor’s arguments about flight. Carines, 460
Mich at 763. Furthermore, for the reasons already discussed, given the overwhelming evidence
of guilt, Davis would not be able to establish that his substantial rights were affected by the
admission of the flight evidence. See id.

         In addition, Davis has not established ineffective assistance of counsel in connection with
this issue, given the admissibility of the evidence and the propriety of the prosecutor’s arguments

                                               -10-
about the evidence. Indeed, an attorney is not required to make futile objections. Ericksen, 288
Mich App at 201.

                    II. DEFENDANT CARTHELL (DOCKET NO. 346123)

                   A. ALLEGED EXTRANEOUS INFLUENCES ON JURY

       Carthell argues that the trial court erred by failing to remove jurors and by denying his
motion for a mistrial because his jury was exposed to extraneous influences that were not
harmless.

        We review a trial court’s decision to grant or deny a mistrial for an abuse of discretion.
People v Alter, 255 Mich App 194, 205; 659 NW2d 667 (2003). Likewise, we review for an
abuse of discretion a trial court’s decision regarding whether to remove jurors. Unger, 278 Mich
App at 259. “An abuse of discretion occurs when the court chooses an outcome that falls outside
the range of reasonable and principled outcomes.” Id.

         “A mistrial is warranted only when an error or irregularity in the proceedings prejudices
the defendant and impairs his ability to get a fair trial.” People v Waclawski, 286 Mich App 634,
708; 780 NW2d 321 (2009) (quotation marks and citation omitted). A defendant’s right to a fair
trial includes a right to a jury that is “fair and impartial.” People v Budzyn, 456 Mich 77, 88; 566
NW2d 229 (1997). “Where the jury considers extraneous facts not introduced in evidence, this
deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel
embodied in the Sixth Amendment.” Id. Consequently, “[t]he trial court must take appropriate
steps to ensure that jurors will not be exposed to information or influences that could affect their
ability to render an impartial verdict based on the evidence admitted in court.” People v Jackson,
292 Mich App 583, 592; 808 NW2d 541 (2011).

        However, a new trial is not required every time a juror “has been placed in a potentially
compromising situation.” Id. at 592-593. Rather, a defendant requesting reversal based on
extraneous influences on the jury must establish two points. “First, the defendant must prove
that the jury was exposed to extraneous influences. Second, the defendant must establish that
these extraneous influences created a real and substantial possibility that they could have
affected the jury’s verdict.” Budzyn, 456 Mich at 88-89 (citations omitted). “Generally, in
proving this second point, the defendant will demonstrate that the extraneous influence is
substantially related to a material aspect of the case and that there is a direct connection between
the extrinsic material and the adverse verdict.” Id. at 89. If the defendant meets this initial
burden, the burden shifts to the prosecution to show that the error was harmless beyond a
reasonable doubt. People v Fletcher, 260 Mich App 531, 540; 679 NW2d 127 (2004).




                                               -11-
       In this case, before the third day of trial, Juror No. 7 reported that a motor vehicle passed
by her and Juror No. 57 when they were leaving the courthouse the night before; the driver of the
vehicle honked the horn. Juror No. 7 thought that the car might have contained supporters of
Carthell. Juror No. 7 said that she briefly discussed the incident with Juror No. 5 in the jury
room. Carthell contends that this honking incident was prejudicial. Carthell also mentions that a
spectator in the courtroom, who was a supporter of Carthell, had expressed discomfort that a
supporter of the robbery victim had taken photographs of his truck.

        On these facts, the trial court did not abuse its discretion by failing to grant a mistrial, or
to take other action, based on Juror No. 7’s disclosure to the court. Specifically, Juror No. 7 and
possibly Juror No. 5 were exposed to an extraneous influence insofar as the honking incident
which occurred outside the trial court proceedings. However, we conclude that the incident was
not related to a material aspect of the case and, viewed objectively, this isolated incident did not
create a real and substantial possibility of affecting the jury’s verdict. See Budzyn, 456 Mich at
89 & n 10. After the trial court was notified about the incident, it questioned all of the jurors
individually and outside of the presence of the other jurors. The questioning of Juror No. 5 and
Juror No. 7 did not reveal any information or circumstances that suggested that their ability to
render a fair and impartial verdict had been compromised. In fact, Juror No. 5 did not even
disclose the honking incident, and Juror No. 7 was not even sure if the person who honked at her
was a supporter of Carthell, and she actually indicated that she did not believe that Carthell “had
anything to do with it.” In addition, Juror No. 7 indicated under oath that she spoke about the
incident only with Juror No. 5. When asked if it was “possible” that other jurors overheard the
conversation, Juror No. 7 said, “Yes.”

        Importantly, Juror No. 5 and Juror No. 7 did not participate in deliberations; rather, they
were excused as unnecessary alternates before deliberations pursuant to an agreement between
the attorneys. The only evidence of an extraneous influence on deliberating jurors, therefore,
was the possibility that other jurors overheard Juror No. 5 and Juror No. 7 discussing the honking
incident. The specifics of any discussion are not apparent from the record. We conclude that the
mere possibility of jurors having overheard a discussion about the honking incident—which even
Juror No. 7 was not sure came from a supporter of Carthell—is not sufficient proof of an
extraneous influence. See Fletcher, 260 Mich App at 540 (discussing the defendant’s burden to
prove an extraneous influence). Even if we were to assume, arguendo, that the possibly
overheard discussion constituted an extraneous influence, Carthell has not demonstrated that it
created a real and substantial possibility of affecting the jury’s verdict. Id.; People v Stokes, 501
Mich 918; 903 NW2d 194 (2017). It would be a stretch indeed to conclude that jurors—none of
whom expressed any concerns to the trial court upon specific questioning regarding the honking
incident, but all of whom expressed the ability to be fair and impartial—were somehow
materially influenced by the discussion between Juror No. 5 and Juror No. 7 about a honking
incident that may or may not have been caused by supporters of Carthell. In addition, there is no


7
  Juror No. 7 never specifically identified Juror No. 5 as the juror who was with her when the
honking incident occurred. However, the trial court’s law clerk believed that Juror No. 7 was
referring to Juror No 5.


                                                 -12-
indication or allegation that a supporter of Carthell who was in the courtroom had any
interactions with any of the jurors. In fact, after learning of the honking incident, the trial court
instructed everyone in the courtroom who was not court personnel to stay away from the jurors.
Under these circumstances, the trial court did not abuse its discretion when it failed to declare a
mistrial.

       Carthell argues that the trial court erred by failing to engage in an analysis of whether the
incident was harmless beyond a reasonable doubt. But this analysis is necessary only if a
defendant first meets his or her burden of showing that there was an extraneous influence that
created a real and substantial possibility of affecting the jury’s verdict. See Fletcher, 260 Mich
App at 540. Because Carthell did not meet this burden, this harmless-beyond-a-reasonable-doubt
analysis was unnecessary.

                 B. DEFENDANT CARTHELL’S STANDARD FOUR BRIEF

       In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, Carthell raises additional issues on appeal. We conclude that these issues have no merit.

                                    1. DOUBLE JEOPARDY

       Carthell contends that his convictions and sentences for both felony murder and the
predicate felony of armed robbery violate protections against double jeopardy and that the
armed-robbery conviction and sentence must be vacated. We review this unpreserved issue
under the plain-error doctrine of Carines, 460 Mich at 763-764.

        The United States Constitution and the Michigan Constitution both provide protections
against double jeopardy. US Const, Am V; Const 1963, art 1, § 15. One such protection is the
protection against multiple punishments for the same offense. People v Nutt, 469 Mich 565, 574;
677 NW2d 1 (2004). In People v Miller, 498 Mich 13, 17-18; 869 NW2d 204 (2015), the
Michigan Supreme Court stated that “[t]he multiple punishments strand of double jeopardy is
designed to ensure that courts confine their sentences to the limits established by the Legislature
and therefore acts as a restraint on the prosecutor and the [c]ourts.” (Quotation marks and
citation omitted.)

         Carthell relies on People v Gimotty, 216 Mich App 254; 549 NW2d 39 (1996), in support
of his argument on appeal. It is true that in Gimotty, id. at 259, this Court concluded that the
defendant’s convictions and sentences for both felony murder and “the predicate felony of first-
degree retail fraud” violated double-jeopardy protections. The Court, therefore, vacated the
retail-fraud conviction and sentence. Id. at 260. In People v Ream, 481 Mich 223, 240-241; 750
NW2d 536 (2008), however, the Michigan Supreme Court overruled earlier Court precedent and
concluded “that convicting and sentencing a defendant for both first-degree felony murder and
the predicate felony does not violate the ‘multiple punishments’ strand of the Double Jeopardy
Clause if each offense has an element that the other does not.” The defendant in Ream was
convicted of first-degree felony murder and the predicate felony of first-degree criminal sexual
conduct. Id. at 241. The Court upheld both convictions and their sentences. Id. at 241-242. The
Court stated that felony murder “contains an element not included in first-degree criminal sexual
conduct, namely, the killing of a human being.” Id. at 241. It then stated that “first-degree

                                                -13-
criminal sexual conduct contains an element not necessarily included in first-degree felony
murder, namely, a sexual penetration.” Id. The Court explained that a sexual penetration was
not a necessary element of felony murder because any number of felonies, not just those
involving sexual penetration, can support a conviction of felony murder. Id.

        The present case is analogous to Ream. Felony murder requires the killing of a human
being, and armed robbery does not. In addition, armed robbery requires a larceny, see MCL
750.259 and MCL 750.530, but felony murder does not necessarily require a larceny, MCL
750.316(1)(b). In light of the Supreme Court precedent of Ream, Carthell’s appellate argument
is without merit.

               2. VERDICT FORM AND ACCOMPANYING INSTRUCTIONS

         Carthell contends that the verdict form used at his trial was defective because it did not
have a “not guilty” option for second-degree murder, even though there was a “not guilty” option
for all of the other charged offenses. However, this argument was waived. More specifically,
the trial court asked if defense counsel was “satisfied with the reading of the jury instructions and
the verdict form.” Carthell’s attorney answered, “Yes, Your Honor.” Carthell is therefore not
entitled to relief in relation to this argument. See People v Carter, 462 Mich 206, 209; 612
NW2d 144 (2000) (holding that waiver extinguishes the right to appeal an alleged error).

        At any rate, no error occurred. The trial court instructed the jury regarding both first-
degree felony murder and second-degree murder. The trial court stated, “If you find defendant
guilty of murder, you must state in your verdict whether it is first degree felony murder or second
degree murder.” The verdict form listed five charges, the first of which was “Count 1 (Murder).”
For Count 1, the options listed were “Not Guilty,” “Guilty of First Degree Felony Murder,” and
“Guilty of Second Degree Murder.” The remaining four counts had “Guilty” and “Not Guilty”
options. The trial court instructed the jury that “[t]here’s a line in front of each so one line will
be filled out per count, just one.” The jury convicted Carthell of all five offenses, choosing the
first-degree felony murder option for Count 1.

        MCL 750.318 states, in part, “The jury before whom any person indicted for murder shall
be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be
murder of the first or second degree[.]” The court’s oral instructions and the verdict form
complied with this statute. The jurors were told that, with respect to murder, they could find
Carthell guilty of first-degree murder, guilty of second-degree murder, or not guilty. The verdict
form and instructions were not erroneous. Contrary to Carthell’s argument on appeal, the verdict
form in this case is not analogous to the flawed verdict form at issue in People v Wade, 283 Mich
App 462, 465-468; 771 NW2d 447 (2009), wherein the verdict form and instructions provided a
“not guilty” versus “guilty” option only for first-degree murder and then failed to provide a “not
guilty” option for second-degree murder and manslaughter.

        Although ineffective assistance of counsel is not mentioned in Carthell’s statement of
questions involved, he makes a brief argument regarding ineffective assistance in the body of his
brief, contending that if this Court does not order a retrial, a remand is necessary to ascertain
why defense counsel did not object to the jury instructions and the verdict form. Given,
however, that the instructions and verdict form were proper, any objection would have been

                                                -14-
futile. Counsel is not required to raise a futile objection. Ericksen, 288 Mich App at 201.
Because Carthell has not set forth any facts that would require the development of a record to
determine if defense counsel was ineffective, remanding the matter for a Ginther hearing is not
necessary. People v Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007), citing MCR
7.211(C)(1)(a).

       We affirm in both appeals.



                                                          /s/ Thomas C. Cameron
                                                          /s/ Douglas B. Shapiro
                                                          /s/ Brock A. Swartzle




                                             -15-
