            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 PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                    February 25, 2020
                Plaintiff-Appellee,

 v                                                                  No. 344391
                                                                    Wayne Circuit Court
 ELZRA JOHNSON,                                                     LC No. 16-005623-01-FC

                Defendant-Appellant.


Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

       Defendant appeals by right his convictions by a jury of second-degree murder, MCL
750.317, assault with intent to murder, MCL 750.83, felon in possession of a firearm, MCL
750.227f, and possession of a firearm during the commission of a felony (felony-firearm), second
offense, MCL 750.227b(b). The trial court sentenced defendant as a fourth offense habitual
offender, MCL 769.12, to concurrent prison terms of 55 to 60 years for the second-degree murder
conviction, 20 to 30 years for the assault conviction, 10 to 20 years for the felon in possession
conviction, and to a consecutive term of 5 years for the felony-firearm conviction. We affirm.

                                I. FACTUAL BACKGROUND

        On June 1, 2016, Ashley Holloway drove Jason Durham to a party store, parked in an
adjacent driveway, and Durham purchased some items and then returned to the car. As Holloway
attempted to drive away she nearly collided with defendant’s car which blocked her departure.
Defendant’s passengers, Milecia Talley and Shenika Pentecost, got out of the vehicle to confront
Holloway, and they exchanged expletives. Durham saw defendant, the driver of the other car,
brandish a gun. Durham ducked and told Holloway to do the same. Holloway drove around
defendant’s vehicle and Durham heard a shot and then four or five more shots. Holloway failed
to duck and was struck by a bullet. Bullets shattered Holloway’s back window glass and put bullet
holes in Holloway’s vehicle. Holloway slumped over bleeding from her head. Durham stopped
the vehicle and called 911. Holloway died and the police arrested defendant a few days after the
shooting.




                                               -1-
                                  II. DISCOVERY VIOLATION

       Defendant first argues that he was denied his constitutional rights when the police failed to
preserve Holloway’s vehicle for defendant’s inspection. This Court reviews constitutional claims
de novo. People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003).

        The United States Constitution provides criminal defendants with the right “to present a
complete defense.” People v King, 297 Mich App 465, 473; 824 NW2d 258 (2012). To
demonstrate a due-process violation involving the failure to preserve evidence, a “defendant must
prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad
faith.” People v Dickinson, 321 Mich App 1, 16; 909 NW2d 24 (2017) (quotation marks and
citation omitted). Unless it is demonstrated that the police acted in bad faith, the failure to preserve
evidence that is merely “potentially useful” is not a due-process violation. People v Huttenga, 196
Mich App 633, 642; 493 NW2d 486 (1992), citing Arizona v Youngblood, 488 US 51, 58; 109 S
Ct 333; 102 L Ed 2d 281 (1988). Defendant bears the burden to demonstrate that “the evidence
was exculpatory or that the police acted in bad faith.” Dickinson, 321 Mich App at 16 (quotation
marks and citation omitted).

        Defendant moved to dismiss his case on the ground that the police released the vehicle to
its owner before his expert could inspect it. Defendant claimed that plaintiff was informed at a
hearing that defendant intended to inspect the vehicle but he acknowledged that the vehicle already
had been released at the time of that January 2017 hearing. The trial court found that no order to
preserve the vehicle for inspection had been entered. The record indicates that Holloway’s vehicle
was taken to Gene’s Towing on June 1, 2016, and stored there available for inspection by the
parties. Detroit Police Officer Matthew Kurik testified that he thought it would be available for
inspection by the parties until the end of the case. Detroit Police Detective Scott Shea, however,
released the vehicle to Holloway’s mother five or six months after the shooting because she
persistently requested the vehicle. Police examined the vehicle twice. At the time of the vehicle’s
release, no one had requested further access to the vehicle. Detective Shea testified that he did not
have a reason to retain the vehicle because it no longer had any evidentiary value and no rule
prevented releasing it. He learned after the release that defendant might have an expert who would
want to inspect the vehicle.

        In denying defendant’s motion to dismiss, the trial court noted that the case file did not
contain an order appointing a private investigator or a proof of service to the prosecutor of notice
directing him to preserve the evidence. The trial court found that no evidence established that the
prosecution intentionally suppressed the evidence, that no evidence established that the police were
required by any order to retain the vehicle, and that defendant would have the opportunity to cross-
examine the prosecution’s witness pertaining to evidence regarding the vehicle.

        Defendant has not demonstrated that the prosecutor acted in bad faith by failing to preserve
Holloway’s vehicle until defendant’s expert could inspect it, or that defendant was denied access
to exculpatory evidence. Mere negligence does not demonstrate bad faith. Youngblood, 488 US
at 58. Generally, bad faith requires a showing of malicious or intentionally wrongful conduct. See
Flones v Dalman, 199 Mich App 396, 401; 502 NW2d 725 (1993). Detective Shea waited several
months to release the vehicle and lacked awareness of any intent by defendant to inspect it. No

                                                  -2-
record evidence reveals defendant’s intent to inspect the vehicle before its release. Defendant,
therefore, has not met his burden to establish that the police acted in bad faith.

        Defendant argues that the police intentionally destroyed exculpatory evidence by failing to
preserve Holloway’s vehicle. He claims that, because the prosecution presented inculpatory
evidence from the vehicle after inspecting it twice, the vehicle may have also provided exculpatory
evidence. However, without demonstrating that the police acted in bad faith, the failure to preserve
evidence that is merely “potentially useful” is not a due-process violation. Huttenga, 196 Mich
App at 642. Defendant asserts that one of the officers who inspected the vehicle concluded,
contrary to the other inspector, that one shot was made from in front of the vehicle. Defendant
argues that this evidence indicated that there may have been another shooter. However, to establish
that his due-process rights were violated by a failure to preserve exculpatory evidence, defendant
must show that the vehicle was “exculpatory evidence that would have exonerated [him].”
Dickinson, 321 Mich App at 16-17. Exculpatory evidence is evidence that would raise a
reasonable doubt about the defendant’s guilt. People v Stanaway, 446 Mich 643, 666; 521 NW2d
557 (1994). Forensic evidence established that the bullet that killed Holloway struck her in the
rear of her head. Evidence also established that the back window of her vehicle was shot out.
Evidence also established that other bullet damage existed in the back and side of the vehicle. This
evidence established that the fatal shot did not originate from the front of the vehicle. Even though
the experts provided contrasting testimony regarding the bullet damage to the front bumper, no
other evidence from the inspections of the vehicle or eyewitness testimony established the
existence of a second shooter. At most, further examination by defendant of Holloway’s vehicle
regarding the trajectory of the bullets may have been potentially useful, but not exculpatory.

        Apart from arguing that plaintiff failed to preserve evidence, defendant asserts that plaintiff
suppressed the evidence of Holloway’s vehicle. Under Brady v Maryland, 373 US 83, 87; 83 S Ct
1194; 10 L Ed 2d 215 (1963), the prosecutor must give the defendant any favorable evidence that
is material to guilt or punishment. Brady applies when the state fails to disclose evidence; it does
not apply when the state fails to preserve it for later testing. Youngblood, 488 US at 57-58.
Because defendant’s claim asserts the failure to preserve Holloway’s vehicle for later inspection,
rather than a failure to disclose the evidence, defendant cannot establish a Brady violation.

        De novo review of the record establishes that the police did not deny defendant his
constitutional rights by failing to preserve Holloway’s vehicle for his inspection. Accordingly,
defendant is not entitled to reversal of his convictions.

                       III. OUTBURST AND EVIDENCE OF A THREAT

        Defendant next argues that the trial court denied him a fair trial when it denied his motion
for a mistrial following an outburst in the gallery and by prosecutorial misconduct for soliciting
testimony from Talley that she had been threatened. We review a trial court’s decision regarding
a motion for a mistrial for an abuse of discretion. People v Ortiz-Kehoe, 237 Mich App 508, 513;
603 NW2d 802 (1999). The trial court does not abuse its discretion when it chooses an outcome
within the range of reasonable and principled outcomes. People v Babcock, 469 Mich 247, 269;
666 NW2d 231 (2003). Unpreserved claims of prosecutorial misconduct are reviewed for plain
error affecting substantial rights. People v Norfleet, 317 Mich App 649, 660 n 5; 897 NW2d 195

                                                 -3-
(2016). Reversal is warranted only if the plain error resulted in the conviction of an innocent
defendant or if “an error seriously affected the fairness, integrity or public reputation of judicial
proceedings independent of the defendant’s innocence.” People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999) (quotation marks and citation omitted).

        A defendant tried by a jury has a right to a fair and impartial jury. People v Budzyn, 456
Mich 77, 88; 566 NW2d 229 (1997). Jurors may only deliberate on evidence that is presented to
them in open court, and considering extraneous facts not introduced in evidence deprives a
defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied in
the Sixth Amendment, US Const, Am VI. Id.

       In this case, the medical examiner displayed an autopsy photo at trial and Holloway’s
mother exclaimed from the gallery, “I look at my daughter. You f**king bastard, look at my
daughter.” The trial court excused the jury and she again said, “Look at my daughter.” The record
is not clear whether the jury heard the second statement. At the conclusion of the medical
examiner’s testimony, the trial court provided the jury the following curative instruction that they
should not consider the outburst as evidence:

               Ladies and gentlemen, the spectators have promised or assured my deputy
       that there won’t be any further outburst. It’s totally understandable when the
       victim’s mother sees an autopsy photo of her daughter I guess, but you just have to
       bear in mind that that’s not evidence the defendant is guilty or that he committed
       the crimes he’s charged with. Well, the inescapable fact that there’s a very
       distraught mother involved, so, just so you know that hopefully that will not happen
       again.

The trial court later denied defendant’s motion for a mistrial, concluding that the outburst was
understandable, and because it provided a cautionary instruction to the jury. The trial court invited
defendant to request an additional jury instruction at the conclusion of the trial.

       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) (citation omitted). A trial court should grant a mistrial with caution,
People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995), and only when the error is
“so egregious that the prejudicial effect can be removed in no other way.” People v Gonzalez, 193
Mich App 263, 266; 483 NW2d 458 (1992).

        Defendant argues that the outburst prevented the jury from being impartial. The trial court
did not question the individual jurors regarding their remaining impartial despite the words from
Holloway’s mother. However, defendant has not established a substantial possibility that her
unsolicited and brief statement affected the jury’s verdict. Budzyn, 456 Mich at 88-89. To prove
that an extraneous influence affected the verdict, a defendant must demonstrate that it substantially
related to a material aspect of the case and that a direct connection existed between the extrinsic
material and the adverse verdict. Id. In this case, defendant has not shown that Holloway’s
mother’s outburst provided extraneous information that impacted the jury’s determination. Where
the motion for a mistrial is based on an unsolicited outburst, it should be granted only where the
comment is so egregious that the prejudicial effect cannot be cured. Gonzalez, 193 Mich App at

                                                -4-
266. In this case, nothing indicates that Holloway’s mother’s brief outburst had a prejudicial effect
on the jurors. The record reflects that the trial court took immediate action to control the courtroom
and limit any effect by instructing the jury to disregard the comment. Further, for defendant’s
benefit, the trial court offered to further instruct the jury in its final jury instructions. Jurors are
presumed to follow their instructions. People v Graves, 458 Mich 476, 486; 581 NW2d 299
(1998). And instructions are presumed to cure most errors. Abraham, 256 Mich App at 279. The
record does not reflect that the jurors in this case disregarded the trial court’s instructions.
Therefore, the trial court did not abuse its discretion by denying defendant’s motion for a mistrial

         Defendant also contends that the prosecutor committed prosecutorial misconduct by
questioning Talley about whether she had been threatened. “The test for prosecutorial misconduct
is whether a defendant was denied a fair and impartial trial.” People v Dobek, 274 Mich App 58,
63; 732 NW2d 546 (2007). A fair trial for a defendant “can be jeopardized when the prosecutor
interjects issues broader than the defendant’s guilt or innocence.” Id. at 63-64. Here, Talley
testified on cross-examination that, although she testified as a witness because she wanted to tell
the truth, she was subject to a subpoena and the police had to locate her and transport her to trial
when she did not willingly appear. On redirect examination, the prosecutor clarified that Talley
did not want to testify and that she had received threats.

        “A defendant’s threat against a witness is generally admissible” because it is relevant to
show a consciousness of guilt. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996).
However, in People v Lytal, 119 Mich App 562, 576-577; 326 NW2d 559 (1982), citing People v
Long, 144 Mich 585; 108 NW 91 (1906), this Court indicated that evidence of a threat may not be
relevant unless it is accompanied by testimony demonstrating that the defendant made or approved
of the threat. In People v Walker, 150 Mich App 597, 603; 389 NW2d 704 (1985), this Court
stated that, without a testimonial foundation, “the prosecution cannot be permitted to create the
illusion by innuendo that witnesses are being intimidated by the defense.” Talley’s statement that
she received threats was not accompanied by any testimony about the source or nature of the
threats. In People v Johnson, 174 Mich App 108, 112; 435 NW2d 465 (1989), this Court held that
a threatening letter possibly sent by the defendant to witnesses “was relevant in evaluating their
testimony” because “the interest or bias of a witness or his relationship toward the parties to an
action is a proper factor to consider on the issue of credibility.” Additionally, in People v Clark,
124 Mich App 410, 412-413; 335 NW2d 53 (1983), this Court stated that a witness’s testimony
about a threat from the defendant’s brother was admissible to “explain the prior inconsistent
statement of the witness.” In this case, during cross-examination defendant challenged Talley’s
motivation to testify. Consequently, it was not improper to elicit testimony from her that explained
her motivation to testify. Evidence that she had been threatened related to her credibility as a
witness and did not deny defendant a fair trial. Further, three witnesses, including occupants of
both cars involved in the shooting, testified that defendant shot multiple times at Holloway’s
vehicle. Evidence established that Holloway suffered a gunshot to the back of her head and that a
bullet damaged the rear window. The prosecution presented to the jury substantial evidence from
which they could determine defendant’s guilt beyond a reasonable doubt. Evidence that Talley
had been threatened regarding her testimony would not have been outcome-determinative.
Defendant has failed to establish that the prosecutor committed prosecutorial misconduct.




                                                  -5-
                                        IV. SENTENCING

       Defendant argues that his sentence was unreasonably disproportionate. We disagree.

         Our review of a sentence is precluded where a defendant’s sentence is within the
appropriate guidelines sentence range unless the trial court relied upon a scoring error or inaccurate
information in determining the sentence, and “the issue was raised at sentencing, in a motion for
resentencing, or in a motion to remand.” MCL 769.34(10). See People v Kimble, 470 Mich 305,
310-311; 684 NW2d 669 (2004). The trial court imposed upon defendant a minimum sentence
that fell within the statutory guidelines minimum sentence range of 315 months (26.25 years) to
1050 months (87.5 years). The trial court sentenced defendant to serve a minimum prison sentence
of 55 years, well within the guidelines range. Therefore, defendant’s argument lacks merit and he
is not entitled to resentencing. See People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d
173 (2016).

                    V. MISCONDUCT DURING OPENING STATEMENT

       Defendant next argues that the prosecutor denied him a fair trial when, during his opening
statement, he said:

       You’ll hear from [Talley] that as they were driving away, Ms. Pentecost asked the
       defendant why did you do that. We were, we were just gonna fight. We could have
       just fought. And he said that he had some anger that he had to get out, and he put
       on a CD and played it. Uh, a tune where the person says I don’t fight mother f’ers,
       I shoot mother f’ers. And he says that’s the answer.

       “A prosecutor may not make a statement of fact to the jury that is not supported by evidence
presented at trial and may not argue the effect of testimony that was not entered into evidence.”
People v Unger (On Remand), 278 Mich App 210, 241; 749 NW2d 272 (2008); People v Fisher,
193 Mich App 284, 291; 483 NW2d 452 (1992). A defendant “has a right to a fair and impartial
jury” with jurors who only deliberate about the “evidence that is presented to them in open court.”
Budzyn, 456 Mich at 88.

        Defendant argues that the prosecutor did not know whether Pentecost would testify
regarding defendant’s statements and asserts that no admitted evidence indicated that defendant
made such statements. The prosecutor stated that Talley, rather than Pentecost, would testify about
what defendant said in response to Pentecost questioning him. At trial, Talley testified that after
the shooting she sat in the car with defendant and Pentecost, and both she and Pentecost asked
defendant why he shot the gun. Talley recalled that defendant responded by stating that he had a
lot of anger, and then played music in which the singer stated that he shoots people instead of
fighting them. Talley testified that she agreed with Pentecost that they should have just fought and
she thought that the song defendant played was his response to her question. The testimony that
the prosecutor told the jury in opening that he would present was largely consistent with Talley’s
testimony. To the extent that the opening statement expressed more than witnesses delivered,
“when a prosecutor fails to prove allegations made during his opening statement, reversal is not
required in the absence of bad faith or prejudice to the defendant.” People v Wolverton, 227 Mich

                                                 -6-
App 72, 75-76, 574 NW2d 703 (1997). In this case, defendant has failed to establish that the slight
discrepancy prejudiced defendant because the evidence that the jury considered from Talley’s
testimony did not significantly differ from the evidence that the prosecutor promised.

        Defendant argues that the prosecutor acted in bad faith because he knew that it was unlikely
that Pentecost would testify since she had recanted her statement to the police. However, the
prosecutor’s opening statement did not make any reference to Pentecost testifying. The prosecutor
indicated that Talley would testify and she did. Further, plaintiff attempted to call Pentecost as a
witness but she, through counsel, asserted her right to not provide self-incriminating testimony.
Defendant has failed to establish bad faith or prejudice.

        Defendant further argues that the evidence promised by the prosecutor was inadmissible
hearsay. “Hearsay is an unsworn, out-of-court statement that is offered to establish the truth of the
matter asserted.” MRE 801(c); People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007). Hearsay
is generally not admissible but may be admitted if it meets the requirements of one of the hearsay
exceptions set forth in the Michigan Rules of Evidence. MRE 802; Stamper, 480 Mich at 3.
Talley’s recounting that Pentecost asked a question was not a hearsay statement because it was not
an assertion capable of being true or false. People v Jones, 228 Mich App 191, 204; 579 NW2d
82 (1998). Additionally, defendant’s statements that were reported by Talley were not hearsay
because they were an admission by a party-opponent. People v Smith, 120 Mich App 429, 434;
327 NW2d 499 (1982), citing MRE 801(d)(2)(A). Accordingly, defendant’s claims of error in this
regard lack merit.

                                     VI. IDENTIFICATION

        Defendant argues that Durham’s and Patrick Walls’s, a customer at the party store, in-court
identifications of defendant were unreliable. He claims that his trial counsel provided ineffective
assistance by failing to suppress their identifications. Defendant failed to preserve these claims of
error. Unpreserved claims are reviewed for plain error affecting substantial rights. Carines, 460
Mich at 763. Claims of ineffective assistance of counsel that are unpreserved are reviewed for
errors apparent on the record. Unger, 278 Mich App at 253. We review de novo the constitutional
question whether an attorney’s ineffective assistance deprived a defendant of his Sixth
Amendment right to counsel. Id. at 242.

       “[I]dentity is an element of every offense.” People v Yost, 278 Mich App 341, 356; 749
NW2d 753 (2008), citing People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976). A
defendant’s due-process rights are violated by the use of an “unduly suggestive” identification
procedure. People v Kurylczyk, 443 Mich 289, 302; 505 NW2d 528 (1993), citing Stovall v Denno,
388 US 293, 302; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). A procedure used in lineup or
photographic identification is unduly suggestive in violation of due-process guarantees where it
produces “a substantial likelihood of misidentification.” People v McDade, 301 Mich App 343,
357; 836 NW2d 266 (2013); People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998).

       Durham gave confused testimony regarding an array of six photographs that police showed
him the day after the shooting. Detective Shea could not recall whether Durham picked out anyone
but said that Durham did not pick defendant as the person who he thought was the shooter.
Nevertheless, at defendant’s preliminary examination Durham testified that he was able to identify

                                                -7-
defendant because he was able to view the side of his face. Although defendant had tattoos on
both sides of his face, Durham did not describe the tattoos on the left side of defendant’s face or
his beard to the police. Durham identified defendant and his female companion from surveillance
video from the liquor store. Walls identified defendant in court for the first time as the man he
saw get into the other vehicle involved in the incident. Walls acknowledged that he did not tell
the police that defendant had face tattoos.

        Where a witness does not identify a defendant in a lineup, the witness’s in-court
identification is “a credibility issue that [is] properly before the jury to determine.” People v
Barclay, 208 Mich App 670, 675-676; 528 NW2d 842 (1995), citing People v Laidlaw, 169 Mich
App 84, 92; 425 NW2d 738 (1988). Defendant argues that Durham and Walls did not have a
sufficient independent basis on which to identify defendant in court. However, where “there was
no impropriety in the [] pretrial identifications of defendant, there was no need to establish an
independent basis for an identification.” People v McElhaney, 215 Mich App 269, 288; 545 NW2d
18 (1996). “The need to establish an independent basis for an in-court identification only arises
where the pretrial identification is tainted by improper procedure or unduly suggestive comments.”
People v Laidlaw, 169 Mich App 84, 92; 425 NW2d 738 (1988). In this case, defendant has not
established any improper procedure or unduly suggestive comments by the police to call into
question Durham’s or Walls’s identifications.

         A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This “right to counsel encompasses the
right to the ‘effective’ assistance of counsel.” People v Cline, 276 Mich App 634, 637; 741 NW2d
563 (2007). To prove an ineffective assistance of counsel claim, a defendant must show (1) “that
counsel’s performance was deficient” and (2) “that counsel’s deficient performance prejudiced the
defense.” People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007).

          Defendant argues that his trial counsel provided ineffective assistance by failing to
challenge Walls’s or Durham’s identifications of defendant. A counsel’s performance is deficient
if “it fell below an objective standard of professional reasonableness.” People v Jordan, 275 Mich
App 659, 667; 739 NW2d 706 (2007). “Failing to advance a meritless argument or raise a futile
objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich App
192, 201; 793 NW2d 120 (2010), citing People v Snider, 239 Mich App 393, 425; 608 NW2d 502
(2000). In this case, no basis existed on which to exclude the witnesses’ in-court identifications
of defendant. Defendant’s trial counsel cross-examined Durham and Walls regarding their
respective identifications and provided the jury evidence from which it could determine the
credibility of their identifications. Defense counsel’s performance, therefore, did not fall below
an objective standard of professional conduct. Therefore, defense counsel did not provide
defendant ineffective assistance.

       Affirmed.

                                                            /s/ James Robert Redford
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Deborah A. Servitto



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