                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 16, 2018
               Plaintiff-Appellee,

v                                                                  No. 334812
                                                                   Wayne Circuit Court
DAJUAN ROBINSON,                                                   LC No. 16-000270-01-FC

               Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

       Defendant, DaJuan Robinson, was convicted by a jury of assault with intent to do great
bodily harm, 1 being a felon in possession of a firearm,2 and possession of a firearm during the
commission of a felony.3 He appeals by right. We affirm.

                                      I. BACKGROUND

       On June 13, 2015, Ben Johnson was shot in the stomach while socializing with several
people outside of a friend’s home in the city of Detroit. Johnson later identified Robinson as the
shooter and selected his picture from a photo array provided by the police. However, after
Robinson was charged in connection with the shooting, Johnson proved unwilling to testify and
the case was dismissed without prejudice. Thereafter, Johnson was taken into custody on a
witness detainer to testify in a grand jury investigation. As a result of the grand jury
proceedings, Robinson was recharged in the instant matter.

       While in jail awaiting trial, Robinson and his girlfriend, Sharina Hinson, had a series of
phone conversations that were recorded by the Department of Corrections. Contemporaneous
with their conversations, Hinson sent several text messages to Johnson. In these messages,
Hinson offered Johnson “his”—presumably referring to Robinson—apology and a “gift” in the


1
    MCL 750.84.
2
    MCL 750.224f.
3
    MCL 750.227b.


                                               -1-
form of a Cadillac. She asked Johnson to “work with her,” stated she wanted to make sure “we
don’t have to deal with this no more,” and encouraged Johnson to say he was too drunk and
could not remember who shot him. Hinson also confronted Johnson with copies of his written
statement and other documents and reported to Robinson that she showed the documents to
others in their community. In an April 2016 text message, Hinson taunted Johnson, saying,
“EVERYBODY talkin bout it,” and then distributed a photograph of Johnson captioned with the
words “WHEN A SNITCH IS WONDERING WHO KNOWS HE SNITCHED.” During the
recorded phone calls between Hinson and Robinson, the two seemingly discussed Hinson’s
contacts with Johnson. Although both Hinson and Robinson spoke in coded language (using
female pronouns and referring to Johnson as “old girl”), the context and timing of their
conversations leave little doubt that their discussions concerned Johnson.

         The trial court granted the prosecution’s pretrial motion to admit Hinson’s messages to
Johnson and the phone call recordings, reasoning that they were admissible under MRE
801(d)(2)(E) as the statements of a coconspirator. The court also found that Robinson had
engaged in wrongdoing intended to procure Johnson’s unavailability as a witness and had
therefore forfeited his right to have Johnson’s prior statements excluded on the basis of hearsay
or the constitutional right of confrontation. Accordingly, the court likewise granted the
prosecution’s motion to admit Johnson’s grand jury testimony in the event he was absent from
trial or lacked memory concerning the subject matter. The prosecution’s investigator was unable
to locate Johnson for trial and his earlier testimony was read into the record. Consistent with the
court’s pretrial rulings, transcripts of Robinson’s phone conversations with Hinson and Hinson’s
text messages to Johnson were also presented to the jury.

                        II. JOHNSON’S GRAND JURY TESTIMONY

        On appeal, Robinson first argues that the trial court erred by finding that Johnson was
unavailable and admitting his grand jury testimony in violation of Robinson’s constitutional right
to confront witnesses. We disagree.

        A trial court’s evidentiary rulings are generally reviewed for an abuse of discretion.4 An
abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable
and principled outcomes.5 Whether the admission of a witness’s prior statement violates a
defendant’s Sixth Amendment right of confrontation is a question of law that we review de
novo.6 The trial court’s factual findings are reviewed for clear error.7 “Clear error exists when
the reviewing court is left with a definite and firm conviction that a mistake was made.”8



4
    People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013).
5
    People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
6
    People v Fackelman, 489 Mich 515, 524; 802 NW2d 552 (2011).
7
    People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009).
8
    People v Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016).


                                                -2-
       Both the federal and state Constitutions guarantee a criminal defendant the right to be
confronted with the witnesses against him.9 As such, the testimonial statements of a witness who
does not appear at trial are generally inadmissible “unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness.”10 “A witness is considered
unavailable if he or she is ‘absent from the hearing and the proponent of a statement has been
unable to procure the declarant’s attendance . . . by process or other reasonable means, and in a
criminal case, due diligence is shown.’ ”11

         However, a defendant can forfeit his right to exclude a witness’s prior statements by his
own wrongdoing. 12 Commonly known as the forfeiture-by-wrongdoing rule, “MRE 804(b)(6)
provides that a statement is not excluded by the general rule against hearsay if the declarant is
unavailable, and the ‘statement [is] offered against a party that has engaged in or encouraged
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.’ ”13 The forfeiture-by-wrongdoing rule is designed to “respond to the problem of
witness intimidation whereby the criminal defendant, his associates, or friends . . . procures the
unavailability of the witness at trial and thereby benefits from the wrongdoing by depriving the
trier of fact of relevant testimony of a potential witness.”14 Importantly, while MRE 804(b)(6) is
an evidentiary rule establishing an exception to the general inadmissibility of hearsay, it derives
from the common-law forfeiture doctrine, which also serves as an exception to a defendant’s
constitutional right of confrontation. 15

        “To admit evidence under MRE 804(b)(6), the prosecution must show by a
preponderance of the evidence that: (1) the defendant engaged in or encouraged wrongdoing; (2)
the wrongdoing was intended to procure the declarant’s unavailability; and (3) the wrongdoing
did procure the unavailability.”16 Based on the recorded calls between Robinson and Hinson, as
well as the evidence obtained from Hinson’s cellphone, the trial court found that Robinson
directed and encouraged Hinson’s attempts to bribe and intimidate Johnson with the specific
intent of precluding Johnson’s testimony at trial. These findings were not clearly erroneous.
Although Hinson was the only person to communicate with Johnson directly, the recorded phone
calls clearly demonstrated that Robinson consistently discussed and encouraged Hinson’s efforts


9
 People v Yost, 278 Mich App 341, 369-370; 749 NW2d 753 (2008), citing US Const, Am VI,
and Const 1963, art 1, § 20.
10
     Yost, 278 Mich App at 370.
11
     Id., quoting MRE 804(a)(5).
12
     Burns, 494 Mich at 110.
13
     Id., quoting MRE 804(b)(6) (alteration in original).
14
  People v Jones, 270 Mich App 208, 220; 714 NW2d 362 (2006) (quotation marks and citation
omitted).
15
     Burns, 494 Mich at 111.
16
     Id. at 115.


                                                  -3-
either shortly before or after she contacted Johnson each time. For instance, on July 15, 2015,
Hinson sent messages to Johnson offering to give him a Cadillac. When Hinson spoke with
Robinson later that day, they discussed the offer and Robinson expressed frustration about
Johnson’s failure to respond. In August 2015, just before Hinson confronted Johnson by text
message with his written statement and a police report, Robinson asked Hinson if “everything
that I sent you was clear,” and reminded her to say that it came from Robinson’s lawyer. Later,
as Robinson’s trial date approached, he encouraged Hinson to “continue doing what you been
doing” and instructed Hinson to “try to call her[17] tomorrow morning . . . .” Given the level of
coordination between Hinson and Robinson and the fact that Hinson’s efforts occurred after
Robinson had been criminally charged,18 we are not left with a definite and firm conviction that
the trial court erred by finding that Robinson engaged in wrongdoing that was designed to cause
Johnson to either be absent from trial or not testify truthfully.

         With respect to the third requirement for admission of evidence under MRE 804(b)(6)—
that the wrongdoing procured the absent witness’s unavailability—Robinson argues that Johnson
did not appear because he simply did not like going to court. When Johnson failed to appear at
trial, the court and parties focused on the prosecution’s attempts to procure his presence to
determine whether he was “unavailable,” but failed to address whether Robinson’s wrongdoing
caused Johnson’s absence.19 Despite the court’s failure to address this requirement, it did not
abuse its discretion by admitting Robinson’s grand jury testimony because a preponderance of
the evidence supports the conclusion that Robinson’s wrongdoing caused Johnson’s absence.
Data from Hinson’s phone showed that Johnson did not respond to Hinson often, but when he
did, he denied Hinson’s accusations and repeatedly asked her to stop contacting him. Johnson
voluntarily spoke with the prosecution’s office in April 2016 and disclosed Hinson’s messages.
Although he was apparently willing to cooperate at that time, Hinson continued to confront
Johnson by text message and by the time the prosecution began to look for Johnson in
anticipation of the June 2016 trial date, he could not be located. Additionally, Johnson’s
stepfather reported that Johnson did not intend to appear for trial and opined that he was afraid.
On this record, we conclude that the trial court did not abuse its discretion by admitting
Johnson’s grand jury testimony on the basis of the forfeiture-by-wrongdoing rule.




17
   As noted earlier, although Hinson and Robinson regularly used female pronouns in their
discussions, the context of the conversations clearly referred to Hinson’s contacts with Johnson.
18
   See id. at 116 (“While the timing of the wrongdoing is by itself not determinative, it can
inform the inquiry: a defendant’s wrongdoing after the underlying criminal activity has been
reported or discovered is inherently more suspect, and can give rise to a strong inference of
intent to cause a declarant’s unavailability.”).
19
   The trial court granted the prosecution’s pretrial motion to admit Johnson’s grand jury
testimony in the event Johnson was “either absent from trial or has a lack of memory regarding
the subject matter,” and thus did not address the third requirement of MRE 804(b)(6) at the time
of its first ruling.


                                               -4-
                                 III. HINSON’S STATEMENTS

        Next, Robinson argues that the trial court erred when it allowed the prosecution to
present the recordings of his conversations with Hinson and Hinson’s text messages to Johnson
as statements of a coconspirator. We disagree.

       “We review for an abuse of discretion a trial court’s ruling on the admissibility of
evidence.”20 An abuse of discretion occurs when the trial court’s decisions falls outside the
range of reasonable and principled outcomes.21 When an evidentiary issue involves a
preliminary question of law, this Court reviews the question de novo.22

        Hearsay is generally inadmissible as evidence.23 “However, a statement is not hearsay if
the statement is offered against a party and is ‘a statement by a coconspirator of a party during
the course and in furtherance of the conspiracy on independent proof of the conspiracy.’ ”24
Robinson argues on appeal that his conversations with Hinson did not demonstrate that he
actively participated in a conspiracy to bribe Johnson or interfere with Johnson’s testimony.
Rather, according to Robinson, he merely listened to Hinson’s “erratic banter.” Robinson further
maintains that, due to his incarceration and indigence, he could not have participated in any such
scheme or known with certainty what Hinson was doing. Robinson’s arguments in this regard
are unpersuasive.

         While it is true that Robinson’s conversations with Hinson were often one-sided, several
of his limited comments belie his insistence that he did not participate in a conspiracy to interfere
with Johnson’s testimony. Even if Robinson could not personally reach out to Johnson from jail,
the recordings showed that he was fully aware of Hinson’s attempts to bribe and intimidate
Johnson and he explicitly told her to “continue doing what you been doing.” As already noted,
he also provided Hinson with various documents to use in confronting Johnson, advised her to
make it clear that the documents came from his lawyer, and instructed her to try to call Johnson
as the trial date approached. These comments and actions reflect more than passive awareness
and demonstrate that Robinson encouraged and occasionally directed Hinson’s actions.
Accordingly, the trial court did not err by finding that Robinson and Hinson were engaged in a
conspiracy to commit witness tampering.

       Robinson also argues that Hinson’s text messages to Johnson did not constitute
statements made in furtherance of a conspiracy. We disagree. A conspiracy continues “until the



20
     People v Bowman, 254 Mich App 142, 145; 656 NW2d 835 (2003).
21
     Babcock, 469 Mich at 269.
22
     Burns, 494 Mich at 110.
23
     MRE 802.
24
  People v Martin, 271 Mich App 280, 316; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008),
quoting MRE 801(d)(2)(E).


                                                -5-
common enterprise has been fully completed, abandoned, or terminated.”25 Additionally, “[t]he
requirement that the statement further the conspiracy has been construed broadly,” and
“[a]lthough idle chatter will not satisfy this requirement, statements that prompt the listener . . .
to respond in a way that promotes or facilitates the accomplishment of the illegal objective will
suffice.”26 MCL 750.122(1) provides that “[a] person shall not give, offer to give, or promise
anything of value to an individual” for the purpose of discouraging that individual from
testifying or influencing the individual’s testimony. Subsection (3) similarly prohibits a person
from discouraging or attempting to influence an individual’s testimony by way of threats or
intimidation. 27 It is evident that Hinson’s text messages to Johnson were made in furtherance of
the conspiracy to commit witness tampering because she first stated that she felt bad about the
situation and offered him a Cadillac as a “gift” without further explanation. When the bribe
proved unsuccessful, she confronted him with his written statement and, after sharing it with
others, attempted to pressure him by labeling him as a snitch. If there was any confusion about
Hinson’s motive, it was clarified by the following message: “I’m trying to do everything I can to
mke [sic] sure none of us hve [sic] to deal with this no more, but I need ur help.” Because
Hinson’s statements to Johnson were made in an effort to accomplish her illegal objective—i.e.,
discouraging or influencing his testimony against Robinson—they constitute statements made in
furtherance of the conspiracy.

                                     IV. JURY INSTRUCTIONS

        Lastly, Robinson argues that the trial court erred by providing the following instruction to
the jury concerning false exculpatory statements:

           Evidence has been introduced . . . that the defendant may have made a . . . false
           exculpatory statement about his involvement in this case. Evidence that a
           criminal defendant has lied about his involvement in this case may be considered
           by you as circumstantial evidence of guilt. In deciding what, if any weight to give
           the evidence, you must be guided by the following circumstances: You must
           decide whether the defendant did, in fact, make any statement. If you decide that
           the defendant did make such a statement, you should determine whether the
           statement was, in fact, false. If you decide that the defendant did make a
           statement about his involvement in this case, you should consider all the
           circumstances surrounding the making of that statement in deciding what, if any,
           weight you should attach to it. And if you decide that the defendant made a false
           statement, you may also use this evidence as consciousness of guilt.

In support of his claim of error, Robinson argues that the evidence to which the instruction
referred—testimony indicating that he denied involvement in the shooting—was not a false
exculpatory statement because he did not try to lead the police in a false direction. Robinson


25
     Martin, 271 Mich App at 317 (quotation marks and citation omitted).
26
     Id.
27
     MCL 750.122(3).


                                                   -6-
contends that the instruction was improper because it essentially told the jury his claim of
innocence was false, thereby usurping its role as fact-finder. We disagree.

        “We review a claim of instructional error involving a question of law de novo, but we
review the trial court’s determination that a jury instruction applies to the facts of the case for an
abuse of discretion.”28 When considering a claim of instructional error, we consider the
instructions in their entirety, and “there is no error requiring reversal if the instructions
sufficiently protected the rights of the defendant and fairly presented the triable issues to the
jury.”29 In addition to the elements of the charged offenses, jury instructions must include any
material issues or theories that are supported by the evidence.30

        The trial court did not abuse its discretion by determining that the false exculpatory
statement instruction was warranted based on the evidence presented at trial. Agent Matthew
Walker testified that he interviewed Robinson concerning the shooting. Robinson denied leaving
his house on the night of the shooting, owning a gun, or shooting Johnson. He also asserted that
he last saw Johnson about “a month ago.” However, Johnson testified that on the night of the
shooting, he was socializing in the street with several friends, including three women he had
been with earlier in the day. He explained that the shooting was preceded by an altercation
between Robinson and one of Johnson’s female companions named Kiarra. While at the hospital
receiving treatment for the gunshot wound, Johnson identified Robinson as the shooter and noted
that he was wearing red. Johnson and another eyewitness were both able to select Robinson’s
picture from a photo array, and yet another witness recalled a man with red clothing trying to
dance with Kiarra before the shooting. Additionally, Robinson’s cellphone records suggested
that minutes after the shooting, his phone was used in locations other than his home. The totality
of this evidence leads to the conclusion that, at minimum, Robinson lied when he said he was at
home all night and it can be inferred that his false statement was designed to avoid being
implicated as the person who shot Johnson. Thus, the trial court did not abuse its discretion by
instructing the jury regarding false exculpatory statements.

        Furthermore, we do not agree that the trial court’s instruction invaded the province of the
jury. To the contrary, the court specifically instructed the jury that it must decide all the facts
relevant to this issue—i.e., whether Robinson made a statement, whether the statement was false,
and, ultimately, whether the false statement proved consciousness of guilt. Michigan
jurisprudence has a long history of recognizing that exculpatory statements which are later
proved to be false are admissible as circumstantial evidence of guilt.31 Robinson’s exculpatory
statements were introduced at trial, as was evidence tending to prove that at least some of his


28
  People v Everett, 318 Mich App 511, 528; 899 NW2d 94 (2017) (quotation marks and citation
omitted).
29
     People v Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).
30
     Id.
31
  People v Seals, 285 Mich App 1, 5-6; 776 NW2d 314 (2009), citing People v Arnold, 43 Mich
303; 5 NW 385 (1880), and People v Wackerle, 156 Mich App 717; 402 NW2d 81 (1987).


                                                 -7-
statements were false. The trial court’s jury instruction fairly presented the manner in which the
jury should consider that testimony and, thus, sufficiently protected Robinson’s rights.

       Affirmed.

                                                            /s/ Michael J. Talbot
                                                            /s/ Christopher M. Murray
                                                            /s/ Colleen A. O’Brien




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