                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 11, 2016
               Plaintiff-Appellee,

v                                                                    No. 326462
                                                                     Wayne Circuit Court
DENORIA LUCCI SMITH, a/k/a DENORIO                                   LC No. 14-003750-02-FC
SMITH,

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                    No. 326808
                                                                     Wayne Circuit Court
MALIK BENASIDE RAY-EL,                                               LC No. 14-003750-01-FC

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.

PER CURIAM.

         Defendants, Denoria Smith and Malik Ray-El, appeal by right their convictions after a
joint trial before a single jury. In Docket No. 326462, Smith appeals his jury convictions of
assault with intent to do great bodily harm, MCL 750.84, felon in possession of a firearm, MCL
750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. In Docket No. 326808, Ray-El appeals his jury convictions of assault with intent to
commit murder, MCL 750.83, and felony-firearm. Because we conclude there were no errors
warranting a new trial, we affirm in both appeals.

                             I. SUFFICIENCY OF THE EVIDENCE

                                 A. STANDARDS OF REVIEW

        Smith first challenges the sufficiency of the evidence supporting his convictions. Ray-El
raises a similar claim that the trial court erred when it denied his motion for a directed verdict on
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the charge of assault with intent to commit murder. This Court reviews de novo a challenge to
the sufficiency of the evidence. People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007).
“A challenge to the trial court’s decision on a motion for a directed verdict has the same standard
of review as a challenge to the sufficiency of the evidence.” People v Lewis (On Remand), 287
Mich App 356, 365; 788 NW2d 461 (2010), vacated in part on other grounds 490 Mich 921
(2011). The difference is that the trial court may consider only the evidence presented up to the
time of the motion. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).

        In reviewing the sufficiency of the evidence, this Court reviews the record evidence in
the light most favorable to the prosecution to determine whether a rational trier of fact could find
that the essential elements of the crimes were proved beyond a reasonable doubt. People v
Hoffman, 225 Mich App 103, 111; 570 NW2d 146 (1997). Circumstantial evidence and
reasonable inferences drawn therefrom are sufficient to prove the elements of a crime. People v
Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). It is for the trier of fact to determine what
inferences may be fairly drawn from the evidence and to determine the weight to be accorded
those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). All conflicts
in the evidence are to be resolved in favor of the prosecution. People v Terry, 224 Mich App
447, 452; 569 NW2d 641 (1997).

                                         B. ELEMENTS

        In order to prove assault with intent to commit murder, the prosecution must present
evidence that the defendant committed an assault with an actual intent to kill and which, if
successful, would make the killing murder. Hoffman, 225 Mich App at 111. “A simple assault
is either an attempt to commit a battery or an unlawful act that places another in reasonable
apprehension of receiving an immediate battery.” People v Terry, 217 Mich App 660, 662; 553
NW2d 23 (1996). “Specific intent to kill is the only form of malice which supports the
conviction of assault with intent to commit murder.” People v Cochran, 155 Mich App 191,
193; 399 NW2d 44 (1986). “The intent to kill may be proved by inference from any facts in
evidence,” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011), and “minimal
circumstantial evidence is sufficient.” People v McRunels, 237 Mich App 168, 181; 603 NW2d
95 (1999).

        A person is guilty of committing an assault with intent to do great bodily harm less than
murder, by contrast, if he or she assaults another and does so with an intent to do great bodily
harm less than murder. People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997).
Assault with intent to do great bodily harm is a specific intent crime. Id. The defendant must
have “intend[ed] to do serious injury of an aggravated nature,” People v Mitchell, 149 Mich App
36, 39; 385 NW2d 717 (1986), but “it is not necessary for any actual injury to occur,” People v
Dillard, 303 Mich App 372, 378; 845 NW2d 518 (2013). The defendant’s intent may be inferred
from all the facts and circumstances surrounding the crime, People v Lugo, 214 Mich App 699,
709-710; 542 NW2d 921 (1995), including the defendant’s acts, the means employed to commit
the assault itself, and the extent of the victim’s injuries, if any. People v Harrington, 194 Mich
App 424, 430; 487 NW2d 479 (1992); People v Cunningham, 21 Mich App 381, 384; 175
NW2d 781 (1970). The charges of felon in possession of a firearm and felony-firearm both
require evidence that the defendant possessed or carried a gun. MCL 750.224f(1), (2); MCL
750.227b(1).

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        Finally, “it is well settled that identity is an element of every offense.” People v Yost,
278 Mich App 341, 356; 749 NW2d 753 (2008). “The prosecutor is not required to present
direct evidence linking the defendant to the crime.” People v Saunders, 189 Mich App 494, 495;
473 NW2d 755 (1991). The defendant’s identity may be proved by circumstantial evidence. See
People v Garcia, 33 Mich App 598, 600; 190 NW2d 347 (1971).

                                         C. ANALYSIS

       The prosecution presented evidence that Deandre Banks drove to a housing complex
where Brittany Rogers lived. His stated reason for being there was to meet two teenage boys
who were selling some cell phones. Banks testified that while he was in his car talking to the
two boys, two men entered the parking lot together and then split up, one approaching the front
and one approaching the rear.

         A surveillance video of the parking lot showed one man, whom Rogers identified as Ray-
El, approaching the driver’s side of Banks’s car. Banks said that that man fired a gun at him and
he (Banks) drove off. The video showed the man identified as Ray-El firing a shot, falling,
getting up, and then firing several more shots at Banks’s car as Banks drove away. Banks
testified that he could hear a different gun firing at him as he drove away. The surveillance
video showed Banks driving away to the left and gunshots could be heard after Ray-El lowered
his arm and turned away from the vehicle, which indicated that a second gunman was present.
Evidence showed that Banks’s car was struck at least three times and Banks himself suffered a
gunshot wound to the leg. The surveillance video showed the visible gunman—identified as
Ray-El—and the two boys all running off to the right. Moments later, a fourth person, whom
Rogers identified as Smith, entered camera range from the left and ran after the other three.
Rogers testified that moments after she heard the gunshots, Smith, Ray-El, and the two boys ran
into her home and Ray-El had a gun in his hand. This evidence, if believed, supported an
inference that Smith was present and that he was the second shooter.

        The evidence that Smith and Ray-El intentionally shot at someone within range and
under circumstances that did not justify, excuse, or mitigate the shooting, was sufficient to prove
assault with intent to commit murder. People v Lipps, 167 Mich App 99, 105; 421 NW2d 586
(1988); People v Johnson, 54 Mich App 303, 304; 220 NW2d 705 (1974). It was also sufficient
to prove an assault with the intent to do great bodily harm. Parcha, 227 Mich App at 239.
Therefore, there was sufficient evidence to establish that Smith and Ray-El in fact possessed
firearms, shot at Banks, and did so with the requisite intent. Consequently, there was sufficient
evidence to support their convictions and the trial court did not err when it denied the motion for
a directed verdict.

                                  II. EVIDENTIARY ERROR

                                 A. STANDARD OF REVIEW

       Both Smith and Ray-El challenge the trial court’s decision to admit other-acts evidence
under MRE 404(b). We review the trial court’s decision to admit the other-acts evidence for an
abuse of discretion, People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002), which occurs



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when the court selects an outcome that is outside the range of reasonable and principled
outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007).

                                         B. ANALYSIS

       Only relevant evidence is admissible. MRE 402.

       Relevance involves two elements, materiality and probative value. Materiality
       refers to whether the fact was truly at issue. Evidence is probative if it tends to
       make the existence of any fact that is of consequence of the determination of the
       action more probable or less probable than it would be without the evidence[.]
       [People v Bergman, 312 Mich App 471, 483; 879 NW2d 278 (2015) (internal
       quotation marks and citations omitted).]

        Although relevant, evidence of other acts is not admissible to prove bad character and
show that the person acted in conformity with his or her bad character. MRE 404(b)(1); People v
Gimotty, 216 Mich App 254, 259; 549 NW2d 39 (1996). Other acts evidence, however, is
admissible—notwithstanding that it implicates character—for other purposes, “such as proof of
motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge,
identity, or absence of mistake or accident” if that purpose is material. MRE 404(b)(1). To be
admissible, the other-acts must be offered for a proper purpose, must be relevant, and its
probative value must not be substantially outweighed by the danger of unfair prejudice. People v
Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). If such evidence is admitted, the trial court
should give a limiting instruction regarding its use. See People v VanderVliet, 444 Mich 52, 64;
508 NW2d 114 (1993).

        The fact that evidence is damaging does not mean it is unfairly prejudicial because “[a]ny
relevant testimony will be damaging to some extent.” Sclafani v Peter S Cusimano, Inc, 130
Mich App 728, 735; 344 NW2d 347 (1983). Evidence offered against a party is “by its very
nature . . . prejudicial, otherwise there would be no point in presenting it.” People v Fisher, 449
Mich 441, 451; 537 NW2d 577 (1995). Instead, “unfair prejudice refers to the tendency of the
proposed evidence to adversely affect the objecting party’s position by injecting considerations
extraneous to the merits of the lawsuit[.]” People v Goree, 132 Mich App 693, 702-703; 349
NW2d 220 (1984). Generally, evidence is unfairly prejudicial if there is “a danger that
marginally probative evidence will be given undue weight or preemptive weight by the jury,”
People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998), if it would lead the jury to
decide the case on an improper basis such as emotion, People v Meadows, 175 Mich App 355,
361; 437 NW2d 405 (1989), or if “it would be inequitable to allow the use of the evidence,”
People v Blackston, 481 Mich 451, 462; 751 NW2d 408 (2008).

       After the shooting incident involving Banks, the surveillance recording showed two men,
whom Rogers identified as Smith and Ray-El, walking back to the parking lot where the shooting
occurred. Within moments, the back of a pickup truck could be seen backing out of a parking
space; Rogers identified it as Ray-El’s red pickup truck.




                                                -4-
       At trial, the prosecution presented two photos of a red Sierra pickup truck; one of which
depicted Ray-El standing next to the truck. The other-acts evidence consisted of two robberies
that were committed the day after the shooting incident. Erin Smith and Dana Anderson were
both robbed at about the same time within blocks of one another and each victim’s cell phone
was taken.

        Evidence showed that Anderson’s phone was equipped with a phone-tracking application
that uses the phone’s internal global positioning system (GPS) to locate the phone and the
information can be obtained via the Internet through another device. The man who robbed Erin
Smith was physically similar to Ray-El, and the man who robbed Anderson was physically
similar to Smith. Anderson’s robber was last seen walking in the direction of a red pickup truck.
The phone-tracking app led to Rogers’s house, and a red Sierra pickup truck was parked outside.
After a time, the phone-tracking app showed that Anderson’s phone was moving and it was
tracked directly to Smith and Ray-El a few blocks away. Officers arrested them and discovered
that Ray-El was in possession of Erin Smith’s phone and Smith was in possession of Anderson’s
phone. Less than an hour had passed since the robberies. This evidence permitted an inference
that Ray-El and Smith robbed Erin Smith and Anderson. See People v Mosley, 107 Mich App
393, 397; 309 NW2d 569 (1981). Further, the fact that Smith gave a false statement about
having purchased Anderson’s phone permitted an inference that Smith was conscious of his
guilt. People v Wolford, 189 Mich App 478, 481-482; 473 NW2d 767 (1991).

        This evidence showed that Smith and Ray-El committed the robberies and then went to
Rogers’s house, which was the same place they went after the shooting at issue here. The
evidence was relevant to show that Smith and Ray-El used Rogers’s house as a place of refuge
and, because there was evidence that Ray-El and Smith appeared at Rogers’s home shortly after
the shooting, the other acts evidence permitted an inference that Ray-El and Smith again sought
refuge at Rogers’s home because they had just engaged in illegal conduct. It also explained why
Smith and Ray-El went to Rogers’s home even though she had no apparent connection to the
shooting. Taken together, the evidence made it more likely that the persons who fled the scene
of the shooting, as shown in the surveillance recording, were the same persons who entered
Rogers’s house moments later; therefore, it tended to prove Smith and Ray-El’s identity as
Banks’s shooters. The evidence was thus relevant and probative for reasons other than their
propensity for criminal behavior. Because identity was a critical issue in this case, the evidence
had significant probative value and was not so inflammatory as to distract the jury from its
duties, and thus its prejudicial effect did not substantially outweigh its probative value. MRE
403. Further, the trial court gave a limiting instruction, cautioning the jury that the evidence
could only be considered for limited reasons and not for any other purpose, which lessened the
potential for any unfair prejudice.

       The trial court did not abuse its discretion in admitting the other-acts evidence.




                                                -5-
                              III. SMITH’S REMAINING ISSUE

                                 A. STANDARD OF REVIEW

        Smith lastly argues that he is entitled to a new trial due to prosecutorial error. The test
for prosecutorial error warranting relief is whether the defendant was denied a fair and impartial
trial. People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003).

                                         B. ANALYSIS

        Smith argues the prosecutor erred by asking officer Roland Brown to comment on
Rogers’s credibility. Because Smith did not object at trial, we review this claim for plain error
affecting Smith’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). A prosecutor may not knowingly offer or attempt to elicit inadmissible evidence.
People v Dyer, 425 Mich 572, 576; 390 NW2d 645 (1986). However, it is not error for a
prosecutor to attempt to admit evidence in good-faith. Abraham, 256 Mich App at 278.

        During cross-examination, both Smith and Ray-El elicited testimony from Rogers that,
despite her arrest, she was not charged with any offenses after she provided information to
officers. The prosecutor later asked Brown to explain why Rogers was not charged:

       I didn’t request a warrant for Ms. Rogers because the burden of proof being to me
       whether or not there was sufficient evidence to charge her with the guns inside the
       home.

       One, I would have to prove that Ms. Rogers had knowledge that the weapons
       were in the home to begin with. Therefore, I felt there was no need for me to
       charge her. And I did not submit a warrant because I believed what she said.

        It is improper for the prosecutor to ask one witness to comment on the credibility of
another witness. People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). Even assuming that
the testimony was improper, the prosecutor did not ask Brown to comment on Rogers’s
credibility. People v Musser, 494 Mich 337, 351-353; 835 NW2d 319 (2013). He merely asked
Brown why he did not pursue criminal charges against Rogers, and that question did not even
intimate that the prosecutor wanted Brown to opine on her credibility. Instead, Brown
volunteered his opinion. “Unresponsive answers from witnesses are generally not prosecutorial
error.” People v Jackson (On Reconsideration), ___ Mich App ___; ___ NW2d ___ (2015)
(Docket No. 322350); slip op at 8. A defendant may be denied a fair trial “if the prosecution
knew in advance that the witness would respond in the manner indicated or somehow conspired
or encouraged the response to which the objection is taken,” People v Barker, 161 Mich App
296, 307; 409 NW2d 813 (1987), but Smith has made no such showing here. Further, “[a]ny
mischief worked by reason of the unexpected and volunteered response could have been cured
by a curative instruction had defense counsel moved for a curative instruction,” id., and this
Court will not reverse on the basis of an unpreserved claim of prosecutorial error when a curative
instruction could have alleviated any prejudice. People v Ackerman, 257 Mich App 434, 449;
669 NW2d 818 (2003). Therefore, this aspect of Smith’s claim must fail.



                                                -6-
        Smith also contends that the prosecutor erred by seeking the admission of the other-acts
evidence and three photos obtained from Smith’s cell phone. These matters were addressed at
pretrial hearings and the trial court ruled that the evidence was admissible. It is not error on the
part of the prosecutor “to introduce evidence expressly permitted by the trial judge.” People v
Curry, 175 Mich App 33, 44; 437 NW2d 310 (1989).

       There were no prosecutorial errors warranting relief.

                             IV. RAY-EL’S REMAINING ISSUES

                               A. PHOTOGRAPHIC EVIDENCE

       Ray-El argues that the trial court abused its discretion in admitting three photographs into
evidence. One photo shows Ray-El and another person standing by a red Sierra pickup truck,
another photo shows the truck by itself, and a third photo shows Ray-El sitting in a vehicle with
a handful of money and a gun on his lap. We review the trial court’s decision to admit the
photos for an abuse of discretion. See Hine, 467 Mich at 250.

        Ray-El does not discuss this issue as it relates to each photograph. The photograph
showing Ray-El with the Sierra pickup truck was relevant because it provided a basis for linking
Ray-El to a red pickup truck, which both supported Rogers’s testimony that Ray-El frequently
drove a red pickup truck and contradicted a defense witness’s testimony that Ray-El did not have
a vehicle. The photograph showing the truck by itself was also relevant because its bed was
similar to that of the truck shown in one of the surveillance recordings, thus supporting Rogers’s
testimony that it was Ray-El’s truck in the recording. There is nothing particularly prejudicial
about either of these two photographs apart from their probative value connecting Ray-El to the
truck. The thrust of Ray-El’s argument is directed at the third photograph depicting him holding
money and possessing a handgun. The surveillance recording showed that the visible gunman,
identified as Ray-El, possessed a handgun. Evidence that a defendant possessed a weapon of the
kind used in the offense with which he is charged is generally relevant to prove that the
defendant committed the offense and is not precluded by MRE 404(b). People v Hall, 433 Mich
573, 580-584 (BOYLE, J.), 589 (BRICKLEY, J., concurring); 447 NW2d 580 (1989). While the
photograph portrays Ray-El in a bad light, it was not so inflammatory as to distract the jury from
its duties and thus its prejudicial effect did not substantially outweigh its probative value. MRE
403.

       The trial court did not abuse its discretion in admitting the photographs.

                                  B. MOTION TO SUPPRESS

                                 1. STANDARDS OF REVIEW

        Ray-El next argues that the trial court erred in denying his motion to suppress all
evidence obtained by officers after they used Anderson’s phone-tracking application to locate
him and Smith. We review de novo the trial court’s ruling on a motion to suppress. People v
Garvin, 235 Mich App 90, 96; 597 NW2d 194 (1999). We review de novo the proper
application of the exclusionary rule. People v Custer, 465 Mich 319, 326; 630 NW2d 870
(2001).

                                                -7-
                                          2. ANALYSIS

       Relying on United States v Jones, 565 US ___; 132 S Ct 945; 181 L Ed 2d 911 (2012),
and Kyllo v United States, 533 US 27; 121 S Ct 2038; 150 L Ed 2d 94 (2001), Ray-El argues that
the use of the GPS technology constituted a search requiring a warrant. “The Fourth
Amendment of the United States Constitution and its counterpart in the Michigan Constitution
guarantee the right of persons to be secure against unreasonable searches and seizures.” People v
Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000). Fourth Amendment interests are only
implicated when the government infringes upon a person’s reasonable expectation of privacy.
People v Smith, 420 Mich 1, 25; 360 NW2d 841 (1984). “An expectation of privacy is legitimate
only if the individual exhibited an actual, subjective expectation of privacy and that actual
expectation is one that society recognizes as reasonable.” People v Taylor, 253 Mich App 399,
404; 655 NW2d 291 (2002).

        The Jones case involved the government’s installation of a GPS tracking device on the
defendant’s car, which relayed volumes of data regarding the vehicle’s location. Jones, 132 S Ct
at 948-949. The Court reasoned that a vehicle is an “effect” protected by the Fourth Amendment
and by installing the GPS device, the government “obtain[ed] information by physically
intruding on a constitutionally protected area, such that a search has undoubtedly occurred.” Id.
at 949-950 n 3. The Kyllo case involved the use of a thermal imager to determine whether an
unusually high amount of heat consistent with the use of marijuana grow lamps was emanating
from the defendant’s house. Kyllo, 533 US at 29. A house is an area protected by the Fourth
Amendment and a search occurred because the government intruded into that protected area by
using sense-enhancing technology to obtain information about the interior of the home. Id. at
34-35.

        In this case, Ray-El has not identified a constitutionally protected area into which officers
intruded without a warrant. The officers did not plant a tracking device on Ray-El or on his
vehicle and did not use sense-enhancing technology to see into his house or some other protected
area. Indeed, the use of the phone-tracking application had nothing to do with Ray-El at all; the
officers tracked Anderson’s phone, which was found in Smith’s possession. Ray-El just
happened to be in Smith’s company when Anderson’s phone was tracked to Smith’s location.
But neither Smith nor Ray-El had a reasonable expectation of privacy in information transmitted
by Anderson’s stolen phone. Therefore, Ray-El has not shown that he was subjected to a
warrantless search at any time before he was physically searched, and Ray-El does not raise any
issues regarding the physical search of his person. The trial court properly denied Ray-El’s
motion to suppress.

                         C. RAY-EL’S BRIEF ON HIS OWN BEHALF

       Ray-El raises additional issues in a brief that he submitted on his own behalf.

        Ray-El contends that his lawyer was ineffective for failing to call various persons who
were in Rogers’s house on the night of the shooting ostensibly because they could have provided
exculpatory testimony. Because the trial court did not hold a hearing on this issue, our review
“is limited to mistakes apparent from the record.” People v Lane, 308 Mich App 38, 68; 862
NW2d 446 (2014). To establish ineffective assistance of counsel, Ray-El must “show both that

                                                -8-
counsel’s performance fell below objective standards of reasonableness, and that it is reasonably
probable that the results of the proceeding would have been different had it not been for
counsel’s error.” People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007).

        The record shows that Martez Fulton, one of the four persons whom Ray-El contends his
lawyer should have called, was not at Rogers’s house on the night of the shooting, but was there
the following night when Rogers was arrested. As for the other witnesses, there is nothing in the
record to suggest what they might have testified about had they been called. Thus, there is no
basis for concluding that any of the four witnesses could have contradicted the prosecution’s case
or provided Ray-El with testimony favorable to the defense. Accordingly, the record does not
support Ray-El’s claim that counsel was ineffective for failing to investigate and call the
witnesses. People v Pratt, 254 Mich App 425, 430; 656 NW2d 866 (2002).

          Ray-El also argues that his lawyer should have obtained witness statements and police
reports and used them to impeach the witnesses’ testimony. There is nothing in the record to
show that counsel did not have any relevant witness statements or reports. To the contrary, his
lawyer advised the trial court that “Mr. Sterbis has had an open file. He’s turned over everything
that . . . he had at the beginning that he acquired as it went on.” Further, Ray-El has not offered
anything to show that any statements or police reports contained any information of
impeachment value that was not utilized at trial. Therefore, this aspect of Ray-El’s claim is not
supported by the record.

       Ray-El further argues that counsel was ineffective for not demanding a bill of particulars.
The record shows that Ray-El exercised his right to a preliminary examination, MCR 6.110(A),
thereby requiring the prosecutor to present evidence sufficient to support probable cause to
believe that the Ray-El committed the charged crimes. MCR 6.112(E); People v McBride, 204
Mich App 678, 681; 516 NW2d 148 (1994). The preliminary examination testimony fulfilled the
function of informing Ray-El of “the nature and the elements of the charges against him,” thus
obviating the need for a bill of particulars. People v Jones, 75 Mich App 261, 270; 254 NW2d
863 (1977). Therefore, counsel was not ineffective for failing to demand a bill of particulars.

        Ray-El’s last unpreserved claim of prosecutorial error is based on Banks’s testimony that
he was reluctant to assist the police officers in their investigation of the shooting and gave them a
false statement so they would leave him alone. Intimidation of prosecution witnesses is not
common, but is nonetheless improper. People v Clark, 172 Mich App 407, 409; 432 NW2d 726
(1988). The record shows that Banks may have been pressured to cooperate in the investigation,
but there is nothing in the record to show that it had any effect that would amount to a denial of
Ray-El’s due process rights. People v Canter, 197 Mich App 550, 569-570; 496 NW2d 336
(1992). There could not have been witness intimidation of the type involved in People v
Crabtree, 87 Mich App 722; 276 NW2d 478 (1979), because Banks never denied that he was
shot, but always maintained that he could not identify the shooters. Nor is there anything in the
record to suggest that Banks was intimidated into providing testimony that was untrue. See
People v Stacy, 193 Mich App 19; 484 NW2d 675 (1992). Although Banks’s credibility was
called into question by his admission that he lied to the officers, that information was elicited by
counsel for the jury’s consideration. Because the record does not support Ray-El’s claim of
prosecutorial error in the form of witness intimidation, Ray-El’s related claim of ineffective
assistance of counsel is also meritless.

                                                -9-
        Ray-El’s claim regarding the jury instructions has been waived because counsel approved
the instructions as given. People v Matuszak, 263 Mich App 42, 57; 687 NW2d 342 (2004). In
any event, we find nothing improper in the trial court’s instructions regarding the intent element
for assault with intent to commit murder. The trial court duly instructed the jury that, to convict
Ray-El of that offense, the prosecutor must prove that Ray-El “intended to kill the person he
assaulted.” Accordingly, there was no plain error.

      Finally, because we find no merit to Ray-El’s claims of error, we reject his claim that he
was denied a fair trial due to the cumulative effect of several minor errors. People v Anderson,
166 Mich App 455, 472-473; 421 NW2d 200 (1988).

       There were no errors warranting relief in either docket.

       Affirmed in both dockets.

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Michael J. Kelly
                                                            /s/ Amy Ronayne Krause




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