                             STATE OF MICHIGAN

                              COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   September 8, 2015
                  Plaintiff-Appellee,                              9:00 a.m.

v                                                                  No. 321303
                                                                   Wayne Circuit Court
CHRISTOPHER WAYNE STOKES,                                          LC No. 13-007518-FC

                  Defendant-Appellant.


Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.

TALBOT, C.J.

        Christopher Wayne Stokes appeals as of right his jury trial convictions of carjacking1 and
armed robbery.2 The trial court sentenced Stokes, as a second habitual offender,3 to 18 to 30
years’ imprisonment for each conviction. We affirm Stokes’s convictions, but remand for
further proceedings consistent with this opinion.

                                           I. FACTS

       Stokes’s convictions arise out of a carjacking that occurred near midnight on July 10,
2013. That night, Charles Jones drove into his driveway in Detroit. Stokes appeared and
ordered Jones to hand over his car keys and cell phone. According to Jones, Stokes did so while
pointing a pistol at Jones’s head. Jones complied, and Stokes fled in Jones’s vehicle. Stokes was
charged with carjacking, armed robbery, and firearms offenses. At trial, Stokes presented
several alibi witnesses. These witnesses generally testified that on the night of the carjacking,
Stokes was at a hair salon in Oak Park, which was hosting a “tattoo party.”4 The jury found
Stokes guilty of carjacking and armed robbery, but acquitted Stokes of the firearms offenses.
Stokes now appeals as of right.


1
    MCL 750.529a(1).
2
    MCL 750.529.
3
    MCL 769.10.
4
  The witnesses testified that the salon hosted the party from 9:00 p.m. to midnight, and that
Stokes was the tattoo artist providing tattoos at the salon.


                                               -1-
                                          II. DISCUSSION

                                    A. JURY DELIBERATIONS

        Stokes argues that he is entitled to a new trial because a juror engaged in misconduct,
which Stokes alleges denied him his right to a fair and impartial trial. We disagree. Stokes
raised this issue in a motion for a new trial, which the trial court denied. “A trial court’s decision
to deny a motion for a new trial is reviewed for an abuse of discretion. An abuse of discretion
occurs only when the trial court chooses an outcome falling outside the principled range of
outcomes.”5 We review de novo claims that a defendant was denied the Sixth Amendment right
to an impartial jury.6

        After the trial was complete, the attorneys and judge interviewed the jurors. During this
interview, one juror disclosed that he conducted an experiment in his own home before
deliberations were complete. This juror attempted to recreate the crime scene by pointing his
own gun at a mirror. Although this juror did not share the results of the experiment with any
other juror, Stokes argues that this experiment deprived him of a fair and impartial jury because
the experiment influenced this single juror, who contributed to the verdict.

        Consistent with a defendant’s right to a fair and impartial jury, “jurors may only consider
the evidence that is presented to them in open court.”7 “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.”8 To establish that
the jury was influenced in a manner requiring reversal, a defendant must prove (1) that the jury
was exposed to an extraneous influence, and (2) that this extraneous influence “created a real and
substantial possibility that [it] could have affected the jury’s verdict.”9

          In People v Fletcher, this Court explained:

                  Traditionally, the near-universal and firmly established common-law rule
          in the United States flatly prohibited the admission of juror testimony to impeach
          a jury verdict. The only recognized exception to this common-law rule related to
          situations in which the jury verdict was affected by extraneous influences. Stated
          differently, where there is evidence to suggest the verdict was affected by
          influences external to the trial proceedings, courts may consider juror testimony to
          impeach a verdict. However, where the alleged misconduct relates to influences


5
  People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008) (quotation marks, brackets, and
citations omitted).
6
    People v Bryant, 491 Mich 575, 595; 822 NW2d 124 (2012).
7
    People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997).
8
    Id.
9
    Id. at 88-89.


                                                  -2-
          internal to the trial proceedings, courts may not invade the sanctity of the
          deliberative process.

                                                * * *

          The distinction between an external influence and inherent misconduct is not
          based on the location of the wrong, e.g., distinguished on the basis whether the
          “irregularity” occurred inside or outside the jury room. Rather, the nature of the
          allegation determines whether the allegation is intrinsic to the jury’s deliberative
          process or whether it is an outside or extraneous influence.[10]

        In Fletcher, the jurors collectively reenacted the crime scene in the jury room using the
gun that the defendant had used to commit the crime.11 This Court found that this reenactment
was not an extraneous influence because it “was closely intertwined with the deliberative process
and was not premised on anything other than the jurors’ collective account of the evidence
presented in open court.”12 Similarly, in this case, the juror’s experiment was closely intertwined
with his deliberative process. The juror’s experiment was an attempt to recreate the crime scene,
apparently aimed at discovering how the crime was committed. Nothing indicates that the
experiment was premised on anything beyond this juror’s memory of the testimony.
Accordingly, the experiment was not an extraneous influence, and cannot be a basis for attacking
the jury’s verdict.

        Stokes relies on Doan v Brigano13 as support. In Doan, a juror conducted an experiment
in her home to determine if the defendant’s testimony was truthful.14 The juror then shared the
results of her experiment with the rest of the jury.15 The Sixth Circuit concluded that this
experiment was an improper extraneous influence on the jury because by sharing the results of
this experiment, the juror brought extraneous facts before the jury.16 The present case is
distinguishable. The juror in the instant matter did not share the results of his experiment with
any other jurors, and thus, no extraneous facts were brought into the jury room. Because the
juror that conducted the experiment did not “testify” as an expert witness to the other jurors, the



10
  People v Fletcher, 260 Mich App 531, 539, 541; 679 NW2d 127 (2004) (quotation marks,
brackets, and citations omitted).
11
     Id. at 537.
12
     Id. at 542.
13
  Doan v Brigano, 237 F3d 722 (CA 6, 2001), abrogated on other grounds by Wiggins v Smith,
539 US 510; 123 S Ct 2527; 156 L Ed 2d 471 (2003).
14
     Id. at 726-727.
15
     Id. at 727.
16
   Id. at 734-736. Ultimately, the Doan court denied relief, concluding that the error was
harmless. Id. at 736-739.


                                                  -3-
experiment does not amount to an extraneous influence.17 Accordingly, Stokes is not entitled to
relief.

                                       B. BRADY VIOLATION

        Stokes next argues that the prosecution violated the rule of Brady v Maryland18 by failing
to disclose various pieces of evidence. Stokes also argues that trial counsel was ineffective for
failing to request access to Stokes’s cell phone until the first day of trial. We disagree.

        This Court reviews due process claims, such as allegations of a Brady violation, de
novo.19 “Whether a person has been denied effective assistance of counsel is a mixed question
of fact and constitutional law.”20 A trial court’s factual findings, if any, are reviewed for clear
error.21 The ultimate question of whether counsel was ineffective is a constitutional issue
reviewed de novo.22

         “A defendant has a due process right of access to certain information possessed by the
prosecution.”23 A Brady violation occurs if: “(1) the prosecution has suppressed evidence; (2)
that is favorable to the accused; and (3) that is material.”24 “The government is held responsible
for evidence within its control, even evidence unknown to the prosecution, without regard to the
prosecution’s good or bad faith.”25 “Evidence is favorable to the defense when it is either
exculpatory or impeaching.”26 “To establish materiality, a defendant must show that there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”27

        Stokes argues that the prosecutor committed a Brady violation by failing to provide
Stokes with access to his own cell phone. On the first day of trial, Stokes’s counsel requested
access to the cell phone in order to find contact information for the individual who prepared a
flyer advertising the tattoo party. The prosecutor agreed to allow defense counsel to view the



17
     Fletcher, 260 Mich App at 543.
18
     Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
19
     People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).
20
     People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
21
     People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
22
     Id.
23
     People v Fox, 232 Mich App 541, 549; 591 NW2d 384 (1998), citing Brady, 373 US 83.
24
     People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014).
25
     Id. at 150 (citations omitted).
26
     Id.
27
     Id. (quotation omitted).


                                                -4-
cell phone for this purpose. The following day, defense counsel acknowledged that she obtained
the contact information from another source and that the witness was being interviewed. The
same witness testified at trial.

         Stokes’s claims fail for a variety of reasons. First, the record does not support Stokes’s
assertion that the cell phone was not provided to him. When Stokes requested access to the cell
phone, the prosecutor offered to make it available. The record does not establish whether the cell
phone was ever provided to Stokes. Stokes now asserts that the cell phone was lost by police or
the prosecutor and never provided to him. The only mention of the cell phone having been lost
appears in a statement by defendant’s appellate counsel during a hearing held in the trial court
regarding Stokes’s motion for a new trial. It appears that counsel, after reviewing the transcripts,
simply assumed that the cell phone was lost when no mention of it was made after the first day
of trial. We refuse to adopt this assumption, which has no apparent basis in the record. Stokes
has not established that the prosecutor actually suppressed evidence.

        Nor has Stokes satisfied the third prong by demonstrating that the cell phone contained
material information that could have altered the outcome of the trial. To succeed on his claim,
Stokes must demonstrate that the cell phone contained evidence that, had it been disclosed,
would have been reasonably likely to lead to a different result.28 Stokes first argues that the cell
phone contained contact information for the individual who prepared the flyer. However, Stokes
obtained this information from another source, and the witness testified at trial. Stokes also
argues that the cell phone contains a tracking program that could have shown his location on the
night of the carjacking. However, Stokes provides no evidence of what information this tracking
program would have provided, nor does he explain why the cell phone was necessary to obtain
the information. Stokes also asserts that the cell phone contained “additional alibi information,”
but fails to explain what information this was. We simply have no basis to conclude that the cell
phone contained any information that was reasonably likely to lead to a different result in this
case.

       Stokes also argues that trial counsel was ineffective for failing to seek access to the cell
phone until the day of trial, at which point Stokes assumes the cell phone had been lost.
“Effective assistance of counsel is presumed, and a defendant bears a heavy burden to prove
otherwise.”29 “To prove a claim of ineffective assistance of counsel, a defendant must establish
that counsel’s performance fell below objective standards of reasonableness and that, but for
counsel’s error, there is a reasonable probability that the result of the proceedings would have
been different.”30 As our Supreme Court has recognized, the materiality prong of the Brady test
requires the same showing of prejudice required to establish ineffective assistance of counsel.31



28
     Id.
29
     People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).
30
     Id.
31
     Chenault, 495 Mich at 159.


                                                -5-
As Stokes cannot demonstrate that any material evidence was withheld, he cannot demonstrate
that any failure by his attorney to seek this evidence earlier warrants relief.

                                    C. SENTENCING ERROR

        Next, Stokes argues that, pursuant to Alleyne v United States,32 his Sixth Amendment
right to a jury trial was violated when the trial court made factual determinations to determine
Stokes’s minimum sentence. We agree. “A Sixth Amendment challenge presents a question of
constitutional law that this Court reviews de novo.”33

       Michigan’s legislatively enacted sentencing scheme requires a trial court to score a
number of variables that take into account a defendant’s past criminal history and the
circumstances of the crime.34 Using the resulting scores, trial courts must then determine the
appropriate range for a defendant’s minimum sentence, using the appropriate sentencing grid.35
Crucially, when scoring the variables, trial courts are permitted to make factual findings which
need only be supported by a preponderance of the evidence.36 Until recently, under the
guidelines as enacted by our Legislature, trial courts were required to impose a minimum
sentence falling within the calculated range, unless the trial court was able to articulate a
substantial and compelling reason warranting a departure from this range.37

        In People v Lockridge, our Supreme Court held that Michigan’s sentencing scheme
violates the Sixth Amendment right to a jury trial because it requires “judicial fact-finding
beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that
mandatorily increase the floor of the guidelines minimum sentence range, i.e., the ‘mandatory
minimum’ sentence under Alleyne.”38 Precisely such a violation occurred in this case. Although



32
     Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013).
33
     People v Lockridge, ___ Mich ___, ___; ___ NW2d ___ (2015); slip op at 11.
34
  See People v Smith, 482 Mich 292, 305; 754 NW2d 284 (2008). As the Court explained, “the
very purpose of the sentencing guidelines is to facilitate proportionate sentences.” Id.
35
  See MCL 777.61 to MCL 777.69; Lockridge, ___ Mich at ___; slip op at 2 (“[A] sentencing
court must determine the applicable guidelines range and take it into account when imposing a
sentence.”).
36
     People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
37
   MCL 769.34(2) (“the minimum sentence imposed by a court . . . shall be within the
appropriate sentence range . . . .”); MCL 769.34(3) (“A court may depart from the appropriate
sentence range established under the sentencing guidelines . . . if the court has a substantial and
compelling reason for that departure . . . .”). See also Lockridge, ___ Mich at ___; slip op at 24
(“The guidelines minimum range is binding on trial courts, absent their articulating substantial
and compelling reasons for a departure.”).
38
  Lockridge, ___ Mich at ___; slip op at 1-2. See also id. at ___; slip op at 36 (“Because
Michigan’s sentencing guidelines scheme allows judges to find by a preponderance of the

                                                -6-
the jury acquitted Stokes of both firearms charges brought against him, the trial court scored OVs
1 and 2 as if Stokes possessed a pistol and pointed it at Jones.39 If no points are assigned to these
variables, Stokes’s OV level drops from Level III to Level II, and his minimum sentence range
under the guidelines would be reduced from a range of 126 to 262 months to a range of 108 to
225 months.40 Thus, it cannot be disputed that the trial court relied on facts not admitted by
Stokes or found by the jury in order to calculate his sentencing guidelines range, and that these
judicially-found facts resulted in an increased minimum sentencing range. As such, under
Lockridge, Stokes’s Sixth Amendment rights were violated at sentencing.

        In Lockridge, our Supreme Court contemplated several possible methods to remedy this
constitutional defect. One potential remedy considered by the Court was “to require juries to
find the facts used to score all the OVs that are not admitted or stipulated by the defendant or
necessarily found by the jury’s verdict.”41 Stokes requests such a remedy here: he asks this
Court to remand for resentencing, but with no points assigned to OVs 1 and 2, such that his
minimum sentence would fall between 108 and 225 months. He asks that the trial court be
required to sentence him within this reduced range, absent a substantial and compelling reason
warranting a departure. However, our Supreme Court “reject[ed] this option[]” because
requiring all facts utilized in the sentencing guidelines to either be found by a jury or admitted by
the defendant would “essentially turn sentencing proceedings into mini-trials[,]” and “[t]he
constitutional violation c[ould] be effectively remedied without burdening our judicial system in
this manner . . . .”42 Thus, we cannot grant Stokes the remedy he seeks.

        Rather, because the rule of Alleyne only applies to judicial fact-finding that mandatorily
increases a minimum sentence,43 our Supreme Court concluded that the appropriate remedy was
to render Michigan’s sentencing guidelines merely advisory.44 The Court did so through a
“judicial rewriting of the statute,” “substitut[ing] the word ‘may’ for ‘shall’ in MCL 769.34(2)
and remov[ing] the requirement in MCL 769.34(3) that a trial court that departs from the



evidence facts that are then used to compel an increase in the mandatory minimum punishment a
defendant receives, it violates the Sixth Amendment to the United States Constitution under
Alleyne.”).
39
  Specifically, the trial court assigned 15 points to OV 1 for pointing a firearm at Jones, MCL
777.31(c), and 5 points to OV 2 for possessing a pistol, MCL 777.32(d), for a total of 20 points.
40
     See MCL 777.62.
41
     Lockridge, ___ Mich at ___; slip op at 26.
42
     Id.
43
     See id. at ___; slip op at 1-2; Alleyne, 133 S Ct at 2155.
44
   Lockridge, ___ Mich at ___; slip op at 36 (“To remedy the constitutional flaw in the
guidelines, we hold that they are advisory only.”). Our Supreme Court adopted this remedy from
United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005). Lockridge, ___
Mich at ___; slip op at 28-30.


                                                   -7-
applicable guidelines range must articulate a substantial and compelling reason for that
departure.”45 Thus, in effect, MCL 769.34(2) now reads:

           (2) Except as otherwise provided in this subsection or for a departure from the
           appropriate minimum sentence range provided for under subsection (3), the
           minimum sentence imposed by a court of this state for a felony enumerated in part
           2 of chapter XVII committed on or after January 1, 1999 [may] be within the
           appropriate sentence range under the version of those sentencing guidelines in
           effect on the date the crime was committed.[46]

In effect, MCL 769.34(3) now reads, “A court may depart from the appropriate sentence range
established under the sentencing guidelines set forth in chapter XVII[.]”47

        Our Supreme Court was careful to state that the sentencing guidelines must still be
scored, and that trial courts must assess the “highest number of points possible” to each variable,
“whether using judge-found facts or not.”48 Trial courts must “continue to consult the applicable
guidelines range and take it into account when imposing a sentence.”49 Thus, under Lockridge,
while the sentencing guidelines must still be scored by the trial court, the resulting range is
merely an advisory range that must be taken into account by the trial court when imposing a
sentence.50 “When a defendant’s sentence is calculated using a guidelines minimum sentence
range in which OVs have been scored on the basis of facts not admitted by the defendant or
found beyond a reasonable doubt by the jury, the sentencing court may exercise its discretion to
depart from that guidelines range without articulating substantial and compelling reasons for
doing so.”51 As explained by our Supreme Court, “[b]ecause sentencing courts will hereafter not
be bound by the applicable sentencing guidelines range, this remedy cures the Sixth Amendment
flaw in our guidelines scheme by removing the unconstitutional constraint on the court’s
discretion.”52

       In Lockridge, our Supreme Court instructed courts regarding how to proceed “in the
many cases that have been held in abeyance for this one.”53 Noting that “virtually all” of these
cases involve unpreserved challenges, our Supreme Court described a procedure, the goal of


45
     Lockridge, ___ Mich at ___; slip op at 28.
46
     MCL 769.34(2); Lockridge, ___ Mich at ___; slip op at 28.
47
     MCL 769.34(3); Lockridge, ___ Mich at ___; slip op at 28.
48
     Lockridge, ___ Mich at ___; slip op at 28-29 and n 28.
49
     Id. at ___; slip op at 29.
50
     Id. at ___; slip op at 29 and n 28.
51
     Id. at ___; slip op at 29.
52
     Id.
53
     Id. at ___; slip op at 31-32.


                                                  -8-
which is to determine whether a Lockridge error resulted in prejudice to any given defendant.54
Such an inquiry is necessary because unpreserved constitutional errors are subject to plain-error
review, which requires a defendant to demonstrate not only that an error occurred, but that “the
error affected the outcome of the lower court proceedings.”55 Our Supreme Court held that if a
defendant is able to “establish a threshold showing of the potential for plain error,” the case must
“be remanded to the trial court to determine whether that court would have imposed a materially
different sentence but for the constitutional error. If the trial court determines that the answer to
that question is yes, the court shall order resentencing.”56 The precise procedure to be followed,
modeled on that adopted in United States v Crosby,57 is as follows:

          [O]n a Crosby remand, a trial court should first allow a defendant an opportunity
          to inform the court that he or she will not seek resentencing. If notification is not
          received in a timely manner, the court (1) should obtain the views of counsel in
          some form, (2) may but is not required to hold a hearing on the matter, and (3)
          need not have the defendant present when it decides whether to resentence the
          defendant, but (4) must have the defendant present, as required by [MCR 6.425],
          if it decides to resentence the defendant. Further, in determining whether the
          court would have imposed a materially different sentence but for the
          unconstitutional constraint, the court should consider only the circumstances
          existing at the time of the original sentence.[58]

        However, in this case, Stokes preserved his claim of error by raising the issue in the trial
court.59 “[C]onstitutional error such as occurred here must be classified as either structural or
nonstructural. If the error is structural, reversal is automatic. If the constitutional error is not




54
     Id. at ___; slip op at 32-36.
55
     Id. at ___; slip op at 30.
56
  Id. at ___; slip op at 33-34. The Court determined that a “threshold showing of the potential
for plain error” is made in “cases in which facts admitted by a defendant or found by a jury
verdict were insufficient to assess the minimum number of OV points necessary for the
defendant’s score to fall in the cell of the sentencing grid under which he or she was
sentenced[,]” and the trial court did not impose a sentence that was an upward departure from the
guidelines range. Id. at ___; slip op at 32-33. That is the precise scenario now before us. Thus,
had Stokes failed to preserve his claim of error, the Crosby remand procedure would clearly be
required.
57
     United States v Crosby, 397 F3d 103 (CA 2, 2005).
58
     Lockridge, ___ Mich at ___; slip op at 35-36 (quotation marks and citations omitted).
59
   See People v Loper, 299 Mich App 451, 456; 830 NW2d 836 (2013). The trial court denied
relief, relying on this Court’s opinion in People v Herron, 303 Mich App 392; 845 NW2d 533
(2013), overruled by Lockridge, ___ Mich at ___; slip op at 12-13, 36.


                                                  -9-
structural, it is subject to the harmless beyond a reasonable doubt test.”60 A Lockridge error is
not structural,61 and thus, must be reviewed for harmless error.

       We conclude that, in order to determine whether the error in this case was harmless, the
Crosby remand procedure must be followed. First and foremost, the Court’s opinion in
Lockridge supports this conclusion. In Lockridge, our Supreme Court cited with approval the
following language from Crosby:

                  “A remand for determination of whether to resentence is appropriate in
          order to undertake a proper application of the plain error and harmless error
          doctrines. Without knowing whether a sentencing judge would have imposed a
          materially different sentence, . . . an appellate court will normally be unable to
          assess the significance of any error that might have been made. . . .

                  Obviously, any of the errors in the procedure for selecting the original
          sentence discussed in this opinion would be harmless, and not prejudicial under
          plain error analysis, if the judge decides on remand, in full compliance with now
          applicable requirements, that . . . the sentence would have been essentially the
          same as originally imposed. Conversely, a district judge’s decision that the
          original sentence would have differed in a nontrivial manner from that imposed
          will demonstrate that the error in imposing the original sentence was harmful and
          satisfies plain error analysis.”[62]

        Unfortunately, our analysis is not as simple as applying this language as it reads. In the
same year the Second Circuit Court of Appeals decided Crosby, the same court decided United
States v Lake.63 In Lake, the court held that, with respect to preserved sentencing errors of the
type now at issue, the Crosby procedure does not apply.64 The Second Circuit described its own
references to harmless error in Crosby as merely dicta, and held that an intervening case, United
States v Fagans,65 “abrogated the dictum in Crosby that had indicated that a Crosby remand
would be appropriate for application of the harmless error doctrine as well as the plain error
doctrine.”66 The court stated that “the issue upon review of the preserved error is whether we
should affirm, if the Government has shown the error to be harmless, or remand for resentencing,



60
     People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000) (citations omitted).
61
     Lockridge, ___ Mich at ___; slip op at 30 n 29.
62
  Id. at ___; slip op at 33, quoting Crosby, 397 F3d at 117-118 (some emphasis added; footnote
omitted).
63
     United States v Lake, 419 F3d 111 (CA 2, 2005).
64
     Id. at 113-114 and n 2.
65
     United States v Fagans, 406 F3d 138 (CA 2, 2005).
66
     Lake, 419 F3d at 113 n 2.


                                                 -10-
if such a showing has not been made.”67 That the Second Circuit has repudiated Crosby to the
extent it held that its remand procedure applies to preserved claims raises the question of whether
this Court should do the same.

        But given that our Supreme Court specifically expressed its “agreement with” the quoted
analysis stated in Crosby,68 we believe our Supreme Court intended that the Crosby procedure
would apply to both preserved and unpreserved errors. Notably, our Supreme Court did not
acknowledge or address Lake or any other cases discussing how to proceed with preserved errors
of the nature at issue here. And although Lockridge concerned an unpreserved claim of error, the
portion of the Court’s opinion in which the above analysis appears is a section explicitly devoted
to describing the appropriate procedure to be followed in cases, such as this one, involving pre-
Lockridge sentencing errors. Thus, we cannot say that our Supreme Court’s reference to this
language was merely dicta.

         As a practical matter, we also see no reason why if the Crosby procedure is necessary to
resolve unpreserved claims, it would not likewise be necessary to follow the procedure to resolve
preserved claims. Ultimately, the purpose of a Crosby remand is to determine what effect
Lockridge would have on the defendant’s sentence, so that it may be determined whether any
prejudice resulted from the error.69 Similarly, we cannot say with certainty that the error was or
was not harmless without knowing what sentence would result had the trial court “been aware
that the guidelines were merely advisory.”70 Perhaps the largest difference between establishing
prejudice under the plain-error test and the harmless error test is on which party the burden lies.
Under the plain error test, the burden lies with the defendant to demonstrate that the “error
affected the outcome of the lower court proceedings.”71 But when a constitutional error is
preserved, the burden falls on “the beneficiary of the error,” here, the prosecution, to “establish[]
that it is harmless beyond a reasonable doubt.”72 Yet whether this Court’s review is for plain
error or for harmless error, the overriding question is the same: what effect, if any, did the error
have on the lower court proceedings? Where the burden falls does not change the nature of the
inquiry. We see no logical reason why the Crosby remand procedure should apply to
unpreserved errors, but not to preserved errors.

       Further, the Crosby procedure offers a measure of protection to a defendant. As the first
step of this procedure, a defendant is provided with an opportunity “to avoid resentencing by




67
     Id.
68
     Lockridge, ___ Mich at ___; slip op at 33.
69
     See id. at ___; slip op at 32-34.
70
     Id. at ___; slip op at 32 n 31.
71
     Id. at ___; slip op at 30.
72
     People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).


                                                  -11-
promptly notifying the trial judge that resentencing will not be sought.”73 We believe this step is
particularly important because, given the sentencing discretion now afforded to trial courts,
Stokes faces the possibility of receiving a more severe sentence on resentencing.74 Although
Stokes raised his challenge in the trial court and has pursued the issue on appeal, his desired
remedy was resentencing with a lower, but still mandatory, guidelines range. While Stokes has
ultimately prevailed on his claim of constitutional error, we do not assume that he is satisfied
with the remedy available to him. If we were to simply remand for resentencing, we would
deprive Stokes of the opportunity to avoid resentencing if that is his desire. In that sense, we
would be punishing Stokes for preserving his claim of error.75

        Thus, in this case, we remand the matter to the trial court to follow the Crosby procedure
in the same manner as outlined in Lockridge for unpreserved errors. Stokes may elect to forego
resentencing by providing the trial court with prompt notice of his intention to do so.76 If
“notification is not received in a timely manner,” the trial court shall continue with the Crosby
remand procedure as explained in Lockridge.77




73
   Lockridge, ___ Mich at ___; slip op at 35 (quotation and brackets omitted). Our Supreme
Court did not define what constitutes “prompt notification” by a defendant in the context of a
Crosby remand. Id. Certainly, the question of what constitutes timely notice may arise in a
future case, particularly if a trial court were to deem a notice untimely, and then proceed to
resentence a defendant to a more severe sentence. However, that issue is not presently before the
Court. Thus, we decline to address the question at this juncture.
74
   See Crosby, 397 F3d at 117 (“[A] change in cases of sentences below a statutory maximum
might yield a higher sentence . . . .”); United States v Regalado, 518 F3d 143, 149 (CA 2, 2008)
(“Crosby recognized that a resentencing might yield a higher sentence.”). See also Alabama v
Smith, 490 US 794, 798; 109 S Ct 2201; 104 L Ed 2d 865 (1989) (a higher sentence on
resentencing is permissible so long as the trial court is not motivated by vindictiveness against a
defendant for having succeeded on appeal). We note that the trial court must make its initial
determination of whether to resentence a defendant based on the “ ‘circumstances existing at the
time of the original sentence.’ ” Lockridge, ___ Mich at ___; slip op at 36, quoting Crosby, 397
F3d at 117. However, if resentencing occurs, the trial court may rely on new information to
justify a more severe sentence. People v Mazzie, 429 Mich 29, 36-37; 413 NW2d 1 (1987). See
also People v Colon, 250 Mich App 59, 66; 644 NW2d 790 (2002) (“When a defendant is
resentenced by the same judge and the second sentence is longer than the first, there is a
presumption of vindictiveness. That presumption may be overcome if the trial court enunciates
reasons for doing so at resentencing.”).
75
  We reiterate that if Stokes had not preserved his claim, the Crosby procedure would clearly be
applicable here. See n 56 supra.
76
     Lockridge, ___ Mich at ___; slip op at 35.
77
     Id. at ___; slip op at 35-36.


                                                  -12-
                         D. FAILURE TO REQUEST JURY INSTRUCTIONS78

        Stokes argues that he was denied effective assistance of counsel because his trial counsel
failed to request two jury instructions. We disagree.

        Stokes first argues that his trial counsel was ineffective for failing to request that the jury
be provided with M Crim JI 4.4. In relevant part, this instruction states that evidence of flight
“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.”79 The jury is
then instructed that it “must decide whether the evidence is true, and, if true, whether it shows
that the defendant had a guilty state of mind.”80

        Officer Theodore Jackson arrested Stokes after a traffic stop, and testified that Stokes
stated he was moving to Flint. Jackson also testified that he found “[s]everal bags of clothes and
shoes; socks and toothbrush; everything,” in the car. However, Jackson did not put this
information in his written report. At trial, defense counsel attempted to establish that perhaps
Jackson was mistaken that Stokes had planned to move to Flint, pointing out that he had made
several other arrests since he arrested Stokes.

        To establish that counsel was ineffective, Stokes must overcome a “strong presumption
that counsel’s assistance constituted sound trial strategy.”81 Stokes cannot overcome this
presumption. The prosecutor did not place much emphasis on Stokes’s attempted flight, and
defense counsel’s strategy was to imply that Jackson had confused Stokes’s arrest with that of
another individual. Instructing the jury regarding evidence of flight would have drawn further
attention to evidence that was not favorable to Stokes. Under the circumstances, Stokes cannot
overcome the presumption that counsel’s decision not to request the instruction was sound trial
strategy.

        Stokes also argues that counsel was ineffective for failing to request an alibi instruction.
Given that Stokes largely relied on an alibi defense, it is unclear why counsel failed to request an
alibi instruction. But even assuming the failure to request the instruction was objectively
unreasonable, Stokes cannot demonstrate a reasonable probability of a different result had the
instruction been provided. The trial court appropriately instructed the jury regarding the
prosecutor’s burden of proof and the elements of the crime. The trial court also thoroughly
instructed the jury regarding the prosecutor’s burden to prove that Stokes was the individual who
committed the crime and how to consider identification evidence. Under similar circumstances,
this Court has explained:



78
 This and the remaining issues discussed have been raised by Stokes in his Standard 4 Brief on
Appeal.
79
     M Crim JI 4.4(2).
80
     M Crim JI 4.4(3).
81
     People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011).


                                                 -13-
          The failure to give an alibi instruction is not error requiring reversal where the
          court properly instructs on the elements of the charged offense and the
          prosecutor’s burden of proof. Consistent with this principle, where, as here, these
          instructions were given, the absence of an alibi instruction would not have a
          reasonable probability of affecting the outcome of the trial. Therefore, we
          conclude defendant was not denied the effective assistance of counsel.[82]

For the same reasons, Stokes was not denied the effective assistance of counsel due to the failure
to request an alibi instruction.

                                  E. FAILURE TO INVESTIGATE

        Stokes next argues that counsel was ineffective for failing to interview any of the
prosecutor’s witnesses and for failing to investigate another man, “Andre.” We disagree. A
defendant raising a claim of ineffective assistance of counsel bears the burden of proving the
factual predicate of his or her claim.83 To support his assertions, Stokes relies only on affidavits
attached to his pro se appellate brief. But because Stokes did not preserve this claim in the trial
court, “our review is limited to errors apparent on the record.”84 As there is no available record
which would establish that trial counsel failed to interview or investigate these witnesses,
Stokes’s claim necessarily fails.

                               F. RIGHT TO PRESENT A DEFENSE

        Stokes next argues that his constitutional right to present a defense was violated when the
trial court ruled that his trial counsel could not, in closing argument, specifically implicate
another individual, “Andre,”85 as the man who committed the carjacking. We disagree. This
Court reviews “de novo the question whether a defendant was denied the constitutional right to
present a defense.”86 “This Court reviews the trial court’s ruling with regard to closing
arguments for an abuse of discretion.”87

        Antawon Wright is Stokes’s younger brother, and lives with Stokes. The two share a
bedroom. During a search of Stokes’s home, police recovered Jones’s stolen cell phone from
this bedroom. Wright testified that he bought this cell phone from Andre, who also lived in the
home. Based on this evidence, Stokes’s attorney sought to argue that it was Andre, not Stokes,



82
  People v Sabin (On Second Remand), 242 Mich App 656, 660; 620 NW2d 19 (2000) (citation
omitted).
83
     People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
84
     Matuszak, 263 Mich App at 48.
85
     Andre’s last name is not disclosed in the record.
86
     People v Unger, 278 Mich App 210, 247; 749 NW2d 272 (2008).
87
     People v Lacalamita, 286 Mich App 467, 472; 780 NW2d 311 (2009).


                                                  -14-
who committed the carjacking and robbery. The trial court denied the request because it “did not
feel that the evidence adduced during the trial would support such an inference.”

        “The purpose of closing argument is to allow attorneys to comment on the evidence and
to argue their theories of the law to the jury.”88 Thus, “[c]losing argument is not the time to
introduce new evidence.”89 However, an attorney may argue the facts and all reasonable
inferences arising from the evidence admitted at trial.90 Under the circumstances, the trial court
abused its discretion when it refused to allow defense counsel to specifically argue that Andre
was the individual who committed the crimes. Because Jones’s cell phone was taken from Jones
during the carjacking, and Wright had testified that Andre sold the same cell phone to him, a
rational inference could be drawn that Andre was the individual that committed the carjacking.
This was not an attempt to add new evidence to the trial; it was a permissible attempt to argue a
reasonable inference from the evidence adduced at trial.

         However, this error did not deprive Stokes of his right to present a defense. “ ‘Whether
rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.’ ”91 Stokes received a
meaningful opportunity to present a complete defense. The relevant evidence was presented to
the jury. Stokes’s trial counsel, while not allowed to specifically reference Andre, was permitted
to extensively argue that Stokes was not the individual who committed the crimes. Counsel
argued that Jones had incorrectly identified Stokes, pointing to various discrepancies in Jones’s
testimony and facts that might have affected Jones’s ability to see his assailant. Counsel also
discussed the cell phone recovered from Stokes’s bedroom. Counsel pointed out that Wright had
testified to purchasing the cell phone from Andre, and then asked the jury to consider why police
had not investigated “another male” that lived in the home. The only men that lived in the home
were Stokes, Wright, and Andre. Thus, given the preceding arguments made by counsel,
counsel’s reference to “another male” living in the home clearly implied the possibility that
Andre committed the crimes. Stokes was not deprived of a meaningful opportunity to present a
complete defense.92




88
     People v Finley, 161 Mich App 1, 9; 410 NW2d 282 (1987).
89
     Id.
90
     See People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
91
  Unger, 278 Mich App at 249, quoting Holmes v South Carolina, 547 US 319, 324; 126 S Ct
1727; 164 L Ed 2d 503 (2006).
92
   For the same reasons, while the trial court abused its discretion by failing to allow Stokes to
point to Andre specifically, this error was harmless, and does not warrant reversal. See People v
Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999) (claims of preserved, nonconstitutional error
do not warrant reversal unless “it is more probable than not that a different outcome would have
resulted without the error.”).


                                              -15-
                              G. PRELIMINARY EXAMINATION

        Stokes next argues that counsel was ineffective for failing to contest the circuit court’s
jurisdiction over Stokes. We disagree.

        “Due process requires that the trial of criminal prosecutions should be by a jury of the
county or city where the offense was committed, except as otherwise provided by the
Legislature.”93 At Stokes’s preliminary examination, Jones testified that the crime occurred in
Detroit. No evidence was admitted specifically demonstrating that Detroit is situated in Wayne
County. Stokes argues that because it was not established that Detroit is located within Wayne
County, it was not established that the Wayne Circuit Court was the proper court to conduct his
criminal trial. The district and circuit courts could take judicial notice of the fact that Detroit is
situated within the borders of Wayne County.94 Counsel was not ineffective for failing to raise
such a trivial point in the trial court.95

                                   H. CUMULATIVE ERROR

        Finally, Stokes argues that “[a]ll of the errors that riddled” his trial deprived him of the
right to a fair trial. We disagree. “[T]he cumulative effect of several errors can constitute
sufficient prejudice to warrant reversal where the prejudice of any one error would not.”96 But
with the exception of the sentencing error previously discussed, Stokes has failed to demonstrate
the existence of any errors that resulted in prejudice. Thus, while Stokes is entitled to relief with
regard to his claim of sentencing error, no further relief is warranted.




93
     People v Webbs, 263 Mich App 531, 533; 689 NW2d 163 (2004) (quotation omitted).
94
   See MRE 201(b) (“A judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”); MRE 201(e) (“Judicial notice may be taken at any stage of the
proceeding.”). See also People v Burt, 89 Mich App 293, 297-298; 279 NW2d 299 (1979)
(taking judicial notice of the fact that “no football game between Washington and Dallas, or
between any other professional football teams, was televised on . . . December 24, 1976.”).
95
  See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a
meritless argument or raise a futile objection does not constitute ineffective assistance of
counsel.”).
96
     People v LeBlanc, 465 Mich 575, 591; 640 NW2d 246 (2002).


                                                -16-
                                      III. CONCLUSION

       We affirm Stokes’s convictions, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.97

                                                           /s/ Michael J. Talbot
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Karen M. Fort Hood




97
    As noted by our Supreme Court in Lockridge, two federal circuit courts have adopted a
remand procedure similar to the Crosby procedure, “although modifying it so that the appellate
court retains jurisdiction throughout the limited remand, and thus it is the appellate court that
will vacate the sentence upon being notified by the judge that he would not have imposed it had
he known that the guidelines were merely advisory.” Lockridge, ___ Mich at ___; slip op at 34 n
33 (quotation marks and citations omitted). That our Supreme Court acknowledged such a
procedure, but did not adopt it, is informative. When an appellate court orders a Crosby remand,
it should not retain jurisdiction. See id.


                                              -17-
