                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 9, 2015
               Plaintiff-Appellee,

v                                                                    No. 319475
                                                                     Ingham Circuit Court
CONNER CHANNING MCCOWAN,                                             LC No. 13-000363-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.

PER CURIAM.

       Defendant appeals by right from his conviction following a jury trial of second-degree
murder, MCL 750.317. He was sentenced to serve 20 to 60 years in prison, and for the reasons
provided below, we affirm.

        The instant appeal involves the stabbing death of Andrew Singler, who was the boyfriend
of defendant’s sister. Defendant admitted that he had killed Singler, but he maintained that the
stabbing occurred during a fight in which he feared for his life and acted in self-defense. He
further argued that he had stabbed the victim after suffering a blow to the head, which may have
caused him to suffer a concussion.

                             I. RIGHT TO PRESENT A DEFENSE

        Defendant first raises a number of arguments concerning the trial court’s restriction on
his ability to present evidence he claims supported his assertion that he suffered a concussion
during the altercation with the victim. He contends that the trial court’s limitation of this
evidence deprived him of his right to present a defense. We review a trial court’s decision to
admit or exclude evidence for an abuse of discretion. People v King, 297 Mich App 465, 472;
824 NW2d 258 (2012). “The trial court abuses its discretion when its decision is outside the
range of principled outcomes.” Id. Whether the exclusion of evidence violates a defendant’s
right to present a defense is a constitutional question that is reviewed de novo. People v Kurr,
253 Mich App 317, 327; 654 NW2d 651 (2002).

       Generally, a defendant has a constitutional right to present a defense, but this right is not
absolute. The defendant must still comply with established rules of evidence and procedure,
People v Kowalski, 492 Mich 106, 139; 821 NW2d 14 (2012), including the requirement that the
evidence the defendant wants to introduce is relevant, People v Hackett, 421 Mich 338, 354; 365

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NW2d 120 (1984). Evidence is relevant if it has “any 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. Generally, all relevant evidence is admissible and
irrelevant evidence is inadmissible. MRE 402. However, relevant evidence still may be
excluded if “its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the members, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” MRE 403.

       Defendant first argues that the trial court erred when it refused to allow him to present the
expert testimony of Douglass Watt, Ph.D., in order to educate the jury on the complexities of
various types of head injuries and the impact they can have on an individual’s perception. Watt
proposed to testify about the gradations of concussive injuries and the myriad of effects a
concussion could have on an individual’s behavior and memory. In particular, defendant sought
to have Watt testify that defendant’s claim that he saw a bright flash of light after being struck in
the head by the victim could be a sign that defendant had suffered a concussion. Further, Watt
would have testified that concussions result in people being in a “confusional state,” where they
have a difficult time assessing situations and reacting appropriately. Defendant claims that this
would have helped the jury understand that defendant held an honest and reasonable belief that
he was in imminent danger.

        The trial court concluded that the testimony was inadmissible because its underlying
premise—that defendant had suffered a concussion at the time of the incident—was speculative.
The trial court relied on the fact that there never was any diagnosis of defendant having been
concussed at the time of the incident. And since there was no evidence of a concussion, the court
believed that Watt’s testimony about concussions would have unduly influenced the jury into
believing that defendant had been diagnosed with a concussion.1 Although not cited by the trial
court, its ruling was based on MRE 403, which bars marginally probative evidence when that
“evidence will be given undue or preemptive weight by the jury.” People v Crawford, 458 Mich
376, 398; 582 NW2d 785 (1998). It is well established that the trial court is in the best position
to make MRE 403 determinations on the basis of “a contemporaneous assessment of the
presentation, credibility, and effect of testimony.” People v VanderVliet, 444 Mich 52, 81; 508
NW2d 114 (1993).

       First, the trial court did not err by prohibiting Watt from testifying regarding whether
defendant had indeed suffered a concussion. By Watt’s own testimony, he could not determine
whether defendant had suffered a concussion as a result of being struck by the victim. Watt
explained that concussions are diagnosed by reported symptoms and a clinical assessment “at or
near the time” of the incident. Watt did not examine defendant until six months after the
incident, and no one else had treated defendant for a concussion. Thus, the trial court did not err




1
  The trial court noted that with no way to verify whether defendant had suffered a concussion
during the fight, introducing expert testimony on the matter of concussions “adds a different
tenor.”


                                                -2-
when it found that Watt could not properly opine that defendant suffered a concussion during the
altercation.

        Second, the trial court also did not abuse its discretion in prohibiting Watt from testifying
regarding the nature of concussions in general. Defendant is correct that his state of mind was an
important element of establishing self-defense. To succeed on a claim of self-defense, defendant
must establish that he honestly and reasonably believed that he was in danger of death or serious
bodily harm. MCL 780.972(1)(a); see also People v Heflin, 434 Mich 482, 502, 509; 456 NW2d
10 (1990); People v George, 213 Mich App 632, 634-635; 540 NW2d 487 (1995). This Court
has held that, in this context, reasonableness “depends on what an ordinarily prudent and
intelligent person would do on the basis of the perceptions of the actor.” People v Orlewicz, 293
Mich App 96, 102; 809 NW2d 194 (2011); see also People v Bynum, 496 Mich 610, 638; 852
NW2d 570 (2014) (stating that a defendant’s belief must be both subjectively honest and
objectively reasonable) (YOUNG, C.J., concurring in part and dissenting in part). This Court has
stated that “[a] defendant’s psychological idiosyncrasies may, at least in theory, be relevant to
the reasonableness of the defendant’s belief that he or she was in danger.” Orlewicz, 293 Mich
App at 102. For argument’s sake, in light of the fact that a concussion could impact a person’s
mental state, Watt’s testimony, assuming a proper foundation was provided, could be considered
relevant under MRE 401. But this does not address the trial court’s concern that the discussion
of concussions was potentially confusing to the jury because it was never established that
defendant was under the effect of a concussion when he stabbed the victim. Therefore, we
cannot conclude that the trial court abused its discretion by precluding Watt from testifying
under MRE 403.

        Defendant also argues that the trial court erred when it refused to allow him to present
evidence of head injuries that allegedly occurred prior to 2011. While the trial court allowed
defendant to testify regarding two incidents in 2011 and 2012, the court precluded him from
mentioning any incidents that took place before 2011 because it found that these earlier incidents
were too remote to be relevant. The court also noted that there never was any medical attention
sought and no medical diagnosis of a concussion was ever given. According to defendant’s offer
of proof, the symptoms he experienced stemming from the two earlier injuries were substantially
similar to the two injuries he suffered in 2011 and 2012. As with the two injuries that occurred
in 2011 and 2012, defendant maintained that he sustained head injuries that caused him to see
flashes of light and were accompanied by initial confusion and loss of memory followed by later
recovery.

        Without any medical diagnosis of defendant having suffered a concussion at anytime, we
conclude that the trial court did not abuse its discretion in determining that these earlier incidents
were not relevant. Further, we note that these incidents also were cumulative, as defendant was
allowed to testify regarding the other, similar 2011 and 2012 injuries. Thus, even if the court did
err, any error was harmless.

       Therefore, because all of the above evidence related to head injuries and concussions was
properly excluded under the rules of evidence, defendant’s right to present a defense was not
abridged.



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         Defendant next argues that he was erroneously prevented from exploring fully the
victim’s propensity for violence, which he maintains was a crucial part of his claim of self-
defense. At trial, defendant testified that he had prior knowledge that the victim had previously
been in fights. He claimed this knowledge came from the victim himself. The trial court
sustained the prosecutor’s objection when defense counsel asked what the victim had specifically
told defendant. Later, the court clarified its ruling and stated that, because defendant had already
testified that he and the victim had not been involved in any prior fight, the court found that any
other fight that the victim may have been involved with was not relevant; nor was the victim able
to be cross-examined.

        Defendant argues that his testimony concerning what he learned from the victim
regarding previous fights should have been admitted because it was directly relevant to
defendant’s mental state. He argues that MRE 405 provides that specific instances of conduct
can be used when a “trait of character of a person is an essential element of a . . . defense.”
Defendant is correct. Evidence of a victim’s violent or turbulent character may be admissible
even where the defendant has not claimed self-defense, for instance, to shed light on whether the
killing was accidental or intentional. MRE 404(a)(2); People v Anderson, 147 Mich App 789,
793; 383 NW2d 186 (1985). This evidence is properly offered as reputation or opinion evidence.
People v Harris, 458 Mich 310, 315, 318-320; 583 NW2d 680 (1998), citing MRE 405; see also
Anderson, 147 Mich App at 792. “[T]he character of the victim may not be shown by specific
instances of conduct unless those instances are independently admissible to show some matter
apart from character as circumstantial evidence of the conduct of the victim on a particular
occasion.” Harris, 458 Mich at 319. Therefore, while it may be excluded to show that the
victim was the initial aggressor, it can be admitted to show that the victim’s prior actions may
have reasonably caused the defendant to be apprehensive of the victim. Id.; see also People v
Cooper, 73 Mich App 660, 664; 252 NW2d 564 (1977) (stating that past, specific violent acts by
the victim can be admissible to show a defendant’s apprehensive state of mind). Accordingly,
because the excluded evidence was offered to support a claim that defendant feared for his life
when the victim attacked him, defendant is correct that, generally, specific instances of the
victim’s actions would be admissible.

         However, it matters little whether the jury knew that defendant was aware that the victim
had acted violently in the past. Defendant knew, before appearing at the victim’s apartment, that
the victim was in a violent state of mind on the night in question based on the string of text
messages exchanged between defendant and the victim. These exchanges made it abundantly
clear not only to defendant, but to the jury, that the victim unquestionably was highly aggressive
at the time and that his intention was to fight defendant.2 Thus, the jury already was confronted
with ample evidence showing that a reasonable person in defendant’s place would have been
apprehensive about approaching the victim. More to the point, with the jury already knowing for


2
  Some of the victim’s texts to defendant included the following: “Great. Hurry up . . . so I can
f***ing kill you”; “Not literally but you’re ass needs to be beaten, and guess what . . . im gonna
f***ing make sure it happens”; “hurry up [and get over here] so I can f***ing stick you in your
face”


                                                -4-
certain that the victim was in a highly aggressive and confrontational state, it knowing that
defendant was aware of other, unrelated, past instances of the victim being violent would not
have any tangible effect. Accordingly, any error was harmless. Further, as defendant did not
make an offer of proof, the extent of any error is not properly preserved for this Court’s review.
MRE 103(a)(2); People v Hackett, 421 Mich 338, 352; 365 NW2d 120 (1984). As a result,
defendant was not denied the right to present a defense because the jury was presented with
evidence that the victim was, in fact, acting aggressively that night.

                             II. PROSECUTORIAL MISCONDUCT

        Defendant next raises a number of challenges to the introduction of evidence and
prosecutor commentary, which he deems were violative of his Fifth Amendment right to remain
silent. We note that while defendant conflates questions, testimony, or commentary involving
his silence in his claim that the prosecutor committed misconduct, it is clear from the testimony
that no inadmissible evidence was introduced; nor were the prosecutor’s comments improper.
Defendant presents a detailed argument concerning why evidence and commentary on his silence
following his initial request for an attorney while at his home should be treated similarly to the
more frequently analyzed impermissible use of post-arrest, post-Miranda3 silence. See, e.g.,
People v Shafter, 483 Mich 205, 214; 768 NW2d 305 (2009). However, defendant fails to
acknowledge that the trial court did, in fact, decide to foreclose all commentary and testimony
concerning his silence after he invoked his right to speak with an attorney and repeatedly ruled
that any evidence concerning same would not be admissible. The trial court thus treated
defendant’s pre-invocation silence differently from his post-invocation/post-arrest silence.

        The trial court’s decision to allow evidence and commentary concerning defendant’s
actions prior to his decision to invoke his right to an attorney was not erroneous. See People v
Sutton (After Remand), 436 Mich 575, 579-580; 464 NW2d 276 (1990). For the most part, the
prosecutor followed the trial court’s direction, with one exception where the prosecutor
questioned defendant concerning any claims he had made to officers while in custody concerning
his medical condition. At that time, the trial court sustained defendant’s objection, struck the
testimony, and provided a limiting instruction. In other instances, the trial court also repeatedly
provided proper limiting instructions. And the prosecutor did not impermissibly comment
during opening statement or closing argument about any post-invocation silence. Instead, the
comments were limited to a claim that, if defendant’s version of the events were true, he should
have immediately told the police what had occurred or should have done so when he first left his
vehicle arriving back home with his father. The closest the prosecutor came to committing error
was when he stated:

         He is sitting there, calm as can be, not crying, not emotional, and not putting his
         head in his hand, rubbing his head. Never told anybody at that point that he was
         dazed, confused, head hurts. In fact, when Sergeant McCready walks in and says:
         How are you doing. What’s he say? Doing good, sir. Doing good. Wouldn’t



3
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                 -5-
       that be the time to tell somebody that my head hurts, that I’m dizzy, that I’m
       dazed, and I’m confused? He didn’t lie, because he didn’t have the symptoms.

This comment was not in regard to defendant’s silence—instead, it was about how defendant’s
statement that he was “doing good” would be contrary to someone who was suffering from a
concussion or head injury.

        Consequently, because none of defendant’s alleged instances of prosecutorial misconduct
was established, he is not entitled to relief. We also note that the trial court mitigated any
improperly injected prejudice when it instructed the jury that it could not use any evidence of
silence, even that which occurred prior to his arrest, as substantive evidence of guilt. “Jurors are
presumed to follow their instructions, and instructions are presumed to cure most errors.” People
v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Finally, given the strong
eyewitness evidence against defendant and the other admissible evidence concerning the lack of
any visible effect from the victim’s alleged assault, we find that any misconduct would not have
been outcome determinative.

                                       III. SENTENCING

       Defendant lastly argues that the trial court abused its discretion when it sentenced him to
a minimum sentence at the top end of the sentencing guidelines range of 20 years and contends
that MCL 769.34(10), which precludes review of this sentence by this Court, is unconstitutional.
Because the sentence was within the guidelines range and defendant does not argue that any of
the guidelines were scored incorrectly, or that the trial court relied on inaccurate information,4
this Court is required to affirm the sentence pursuant to MCL 769.34(10), which provides in
pertinent part:

              If a minimum sentence is within the appropriate guidelines sentence range,
       the court of appeals shall affirm that sentence and shall not remand for
       resentencing absent an error in scoring the sentencing guidelines or inaccurate
       information relied upon in determining the defendant’s sentence . . . .

        As to whether MCL 769.34(10) is unconstitutional to the extent it purports to preclude
appellate review of sentences within the properly scored guidelines, appellant acknowledges that
this issue has already been raised and rejected by our Supreme Court in People v Garza, 469
Mich 431, 434-436; 670 NW2d 662 (2003), and that this Court is bound by stare decisis to




4
 The parties agreed that the sentence guidelines range was 144 to 240 months. While defendant
maintains that the trial court erred in accepting the recommendation of the probation department
because that recommendation was based upon the department’s “imperfect scoring of the
guidelines,” he does not argue that the guidelines, as corrected, were mis-scored or that the trial
court relied on underlying inaccurate information during sentencing.


                                                -6-
follow that decision, People v Hall, 249 Mich App 262, 270; 642 NW2d 253 (2002).

       Affirmed.



                                                        /s/ Michael J. Riordan
                                                        /s/ Pat M. Donofrio
                                                        /s/ Jane M. Beckering




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