                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 9, 2018
               Plaintiff-Appellee,

v                                                                  No. 338584
                                                                   Wayne Circuit Court
DELVON HARTSON,                                                    LC No. 16-009813-01-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and K. F. KELLY and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of second-degree
murder (2 counts), MCL 750.317, assault with intent to murder (AWIM) (2 counts),
MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant to 40 to 85 years’ imprisonment for each
second-degree murder conviction, 25 to 60 years’ imprisonment for each AWIM conviction, and
a consecutive term of 2 years’ imprisonment for the felony-firearm conviction. We affirm
defendant’s convictions and his felony-firearm sentence, but remand for the trial court to
articulate its reasons for departing from the sentencing guidelines in imposing the second-degree
murder and AWIM sentences and to establish a factual basis for the court costs imposed.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        This case arises from a shooting that occurred at 17510 Fielding in Detroit on October 14,
2016. After driving to that address, defendant’s siblings—Tamara Hartson, Tajmas Hartson,
Jasmine Hartson, and Yanni Bobo, engaged in a physical altercation with several people in the
home. Eventually, the siblings retreated to Tajmas’s car; as they were leaving, Tamara stated
that she would “have my brother come back and shoot this b***h up.” Ronnell Boyd threw a
bicycle through the windshield of their car as it departed the scene.

        Defendant received several calls from Jasmine immediately after this incident. The
cellular phone records showed defendant’s phone approaching the area of 17510 Fielding.
Several witnesses observed four men in black hoodies approach the house at that address and
begin shooting. A witness heard one of the men in hoodies say: “You think yaw [sic] going to
get down on my brother and sisters like that.” Latricia Howard identified defendant from a


                                               -1-
photo lineup as one of the shooters.1 As a result of the shooting, Rashawn Jackson and Ronnell
Boyd were killed and Tavona Boyd was injured.

        A search warrant was executed at defendant’s home. No firearms were found, but
officers did find a box for a .45 caliber handgun and .45 caliber ammunition, as well as
defendant’s concealed pistol licenses (CPL) for a .45 caliber Glock pistol and a 7.62mm short
pistol version of an AK-47. Neither weapon was found in defendant’s home.

       Tajmas testified, admitting to the fight but denying that anyone had made any threats
about returning to the house. Defendant’s girlfriend testified that she had defendant’s cellphone
that day, and had exchanged calls with Jasmine after the fight. An unrelated witness, Tamika
Winfield, testified that she had seen defendant at a location on McCoy Street “shooting dice”
between the relevant hours of 1:00 p.m. and 5:00 p.m. on October 14, 2016.

        Defendant was convicted as described. At sentencing, the prosecution requested that the
trial court depart upward from the sentencing guidelines. The trial court imposed the sentences
described, which exceed the top of the guidelines range by 30 months for the murder convictions
and by15 months for the AWIM convictions.

       This appeal followed

                                II. PHOTOGRAPHIC LINE-UP

        Defendant argues that the trial court erred by denying his motion to suppress Howard’s
identification, because the photograph used in the array presented by police to Howard was
unduly suggestive and because it depicted him in a hoodie, which coincided with the description
of the clothing worn by the shooter. We disagree.

              A trial court’s determination in a suppression hearing regarding the
       admission of identification evidence will generally not be reversed unless clearly
       erroneous. Issues of law relevant to a motion to suppress are reviewed de novo.
       Clear error exists when the reviewing court is left with a definite and firm
       conviction that a mistake was made. [People v McDade, 301 Mich App 343, 356;
       836 NW2d 266 (2013) (citations omitted).]

         “A photographic identification procedure or lineup violates due process guarantees when
it is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.”
McDade, 301 Mich App at 357. The suggestiveness of a photographic lineup “must be
examined in light of the totality of the circumstances.” Id. (citation and quotation marks
omitted). “As a general rule, physical differences between a suspect and other lineup
participants do not, in and of themselves, constitute impermissible suggestiveness[.]” Id.
(citation and quotation marks omitted). “Physical differences generally relate only to the weight


1
  Howard also attributed the referenced statement to defendant, but described it as “Yaw [sic]
think you going to f*** with my people.”


                                                -2-
of an identification and not to its admissibility.” People v Hornsby, 251 Mich App 462, 466; 650
NW2d 700 (2002) (citation omitted). Factors to be considered in evaluating pretrial
identification procedures include: “the opportunity for the witness to view the criminal at the
time of the crime, the witness’ degree of attention, the accuracy of a prior description, the
witness’ level of certainty at the pretrial identification procedure, and the length of time between
the crime and the confrontation.” People v Colon, 233 Mich App 295, 305; 591 NW2d 692
(1998) (citation omitted).

        Here, the photographic array presented to Howard was comprised of six photographs,
including one of defendant. Defendant argues that he was the only one in the lineup wearing a
hoodie, and that this was unduly suggestive because Howard had described the shooter as
wearing a black hoodie. We note that, while defendant’s photograph shows him wearing a
hoodie, another photo in the array shows a different individual wearing a similar sweatshirt-like
article of clothing, thereby making defendant’s photograph less distinctive or unique within the
array. See People v Kurylczyk, 443 Mich 289, 311-312; 505 NW2d 528 (1993) (stating that
differences among participants in a lineup are “significant only to the extent they . . .
substantially distinguish defendant from the other participants in the line-up . . . .”). More
importantly, Howard’s selection of defendant as the shooter from the array was immediate and
unequivocal. She denied that her identification of defendant was based on his clothing. Rather,
Howard stated that her identification was based primarily on defendant’s eyes. Howard stated
that she had been in close physical proximity to the shooter and had made eye contact with him
during the event.

        Under the totality of the circumstances, McDade, 301 Mich App at 357, Howard had a
sufficient opportunity, albeit under highly stressful conditions, to observe the perpetrator. She
provided a description to the police and when confronted with a photographic array immediately
identified defendant as the perpetrator within days of the event. Colon, 233 Mich App at 305.
Further, Howard explained that her selection of defendant’s photograph was not based on his
clothing. The record contains no evidence to support the conclusion that the photographic lineup
was “constitutionally defective.” Colon, 233 Mich App at 304. The trial court did not err by
denying defendant’s motion to suppress. McDade, 301 Mich App at 356.

                                       III. JUDICIAL BIAS

       Defendant also argues that the trial court’s questioning of Winfield demonstrated bias and
pierced the veil of judicial impartiality, resulting in improper commentary on the credibility of
defendant’s alibi witness and therefore an improper influence on the jury. We disagree.

        To preserve a claim of judicial bias or misconduct, a defendant must raise an objection in
the trial court. People v Sardy, 216 Mich App 111, 117-118; 549 NW2d 23 (1996); People v
Conley, 270 Mich App 301, 305; 715 NW2d 377. Defendant did not object to the questions
posed by the trial court to Winfield, thereby failing to preserve this issue for appellate review; we
review unpreserved claims of judicial bias for plain error affecting substantial rights. People v
Jackson, 292 Mich App 583, 597; 808 NW2d 541 (2011) (citation omitted). “To avoid forfeiture
under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement generally requires a

                                                 -3-
showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.”
Id. Defendant carries the burden of persuasion with regard to establishing prejudice.

       A criminal defendant is entitled to a “neutral and detached magistrate.” People v Cheeks,
216 Mich App 470, 480; 549 NW2d 584 (1996) (citation omitted). A defendant asserting a
claim of judicial bias must overcome “a heavy presumption of judicial impartiality.” People v
Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999). This Court will typically analyze
comments and conduct by a trial court, in the following manner, to ascertain whether such
conduct or comments deprived a defendant of a fair trial:

       Michigan case law provides that a trial judge has wide discretion and power in
       matters of trial conduct. This power, however, is not unlimited. If the trial
       court’s conduct pierces the veil of judicial impartiality, a defendant’s conviction
       must be reversed. The appropriate test to determine whether the trial court’s
       comments or conduct pierced the veil of judicial impartiality is whether the trial
       court’s conduct or comments “were of such a nature as to unduly influence the
       jury and thereby deprive the appellant of his right to a fair and impartial trial.”
       [Conley, 270 Mich App at 307-308, quoting People v Collier, 168 Mich App 687,
       698; 425 NW2d 118 (1988) (citations omitted).]

In addition:

       Judicial rulings, as well as a judge’s opinions formed during the trial process, are
       not themselves valid grounds for alleging bias “unless there is a deep-seated
       favoritism or antagonism such that the exercise of fair judgment is impossible.”
       Comments that are critical of or hostile to counsel and the parties are generally
       not sufficient to pierce the veil of impartiality. [Jackson, 292 Mich App at 598
       (citations omitted).]

As our Supreme Court stated in People v Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015):

       A trial judge’s conduct deprives a party of a fair trial if the conduct pierces the
       veil of judicial impartiality. A judge’s conduct pierces this veil and violates the
       constitutional guarantee of a fair trial when, considering the totality of the
       circumstances, it is reasonably likely that the judge’s conduct improperly
       influenced the jury by creating the appearance of advocacy or partiality against a
       party. In evaluating the totality of the circumstances, the reviewing court should
       inquire into a variety of factors including, but not limited to, the nature of the trial
       judge’s conduct, the tone and demeanor of the judge, the scope of the judicial
       conduct in the context of the length and complexity of the trial and issues therein,
       the extent to which the judge’s conduct was directed at one side more than the
       other, and the presence of any curative instructions, either at the time of an
       inappropriate occurrence or at the end of trial.

        In general, it is permissible for a trial court to “interrogate witnesses, whether called by
itself or a party.” MRE 614(b). “[T]he central object of judicial questioning should be to
clarify,” and “it is appropriate for a judge to question witnesses to produce fuller and more exact

                                                 -4-
testimony or to elicit additional relevant information.” Stevens, 498 Mich at 173. Boundaries do
exist, however, with regard to judicial questioning. “It is inappropriate for a judge to exhibit
disbelief of a witness, intentionally or unintentionally. It is essential that the judge not permit his
own views on disputed issues of fact to become apparent to the jury.” Id. at 174. Further:

       To ensure an appearance of impartiality, a judge should not only be mindful of the
       substance of his or her words, but also the manner in which they are said. A
       judge should avoid questions that are intimidating, argumentative, or skeptical.
       Hostile questions from a judge are particularly inappropriate when the witnesses
       themselves have done nothing to deserve such heated inquiry. [Id. at 175
       (citations omitted).]

         Throughout the trial in this case, the trial court occasionally posed questions to witnesses
following the elicitation of testimony by the prosecutor and defense counsel and then provided
an opportunity for the jurors to ask questions to be read by the trial judge. Defendant argues that
one exchange of questioning by the trial court of defendant’s alibi witness, Winfield, pierced the
veil of judicial impartiality and demonstrated bias. We disagree.

       The exchange between the trial court and Winfield consisted primarily of questions posed
by the trial court regarding Winfield’s actions on the day of the shooting and her claimed
observation of defendant at a location removed from the Fielding residence:

               Q. You indicated that you went to the park to see your park friends?

              A. Yes, I be [sic] at Chandler Park where the old people be [sic] on
       Dickerson.

               Q. And that was at about 1:00?

               A. Yes.

               Q. And what do you all what were you all doing at the park in October
       that day?

               A. Oh, we sit out there we sits [sic] in our cars with the old people it be
       [sic] a lot of old people sitting on Chandler Park right over Dickerson and
       Frankford.

               Q. People sit in their cars?

               A. Yes.

               Q. And what do they do?

               A. They sit in the car and listen to music and drink out there.

               Q. With the windows up or the windows down.


                                                 -5-
       A. No, the windows be [sic] down some cars be up [sic]. It be [sic] like
10 to 15 cars out there.

        Q. And you sit in your cars?

        A. Um hm.

        Q. Is that a yes?

        A. Yes, ma’am.

        Q. You don’t get out and socialize with each other.

         A. No some people do. We got [sic] three benches out there. So some
sits [sic] in the car some don’t they [sic] all elderly people. So some sits [sic] in
the car and some get out and sit on the bench. They play dominos they play
spades out there.

        Q. So on October 14th what were you doing that particular day.

        A. I was in the park.

       Q. Yeah, but were you on the bench were you playing spades were you in
your car.

        A. I was in my car I was listening to the radio.

        Q. In your own car.

        A. Yes, ma’am.

        Q. And you windows were up or down?

        A. My windows were up.

        Q. What was the weather like that day do you remember.

        A. It wasn’t hot and it wasn’t that cold.

       Q. Would it surprise you to know that it was the low was that the weather
was about 50 or 60 degrees that day?

        A. No, it don’t [sic] surprise me.

        Q. And if weather was like 50 or 60 you would still go hang out in the
park?




                                         -6-
         A. Yes, we be [sic] in the park when the sun be [sic] outside. We just sits
[sic] in our car we go from car to car that’s something that I do daily. I goes [sic]
to the park with the old people I feel comfortable being around old people.

       Q. Older people.

       A. Yes.

       Q. Now you indicated that your brother passed away?

       A. Yes.

       Q. And for a while you were not coming out of the house because you
were sad?

       A. Yes.

       Q. How long did that last?

       A. About two years it took me to go to church to get grips on I lost my
brother. I was the [sic] keeping it to myself.

       Q. So your brother passed away in like 2014?

       A. 2012.

       Q. 2012 and --

       A. It took me two years to come back to myself.

       Q. – and then you start going outside?

       A. Yes, to be around people, yes.

        Q. So by the time 2016 came along when this happened you were doing
better and you were being more social?

       A. Yes.

       Q. Selling food sometimes.

       A. Yes.

       Q. Hanging out in the park everyday [sic].

       A. Yes.

       Q. All right.


                                         -7-
        Defendant does not specify that a particular question by the trial court was improper or
suggest that the trial court’s demeanor during the exchange with Winfield was hostile or
inappropriate. Rather, defendant contends that the interaction between the trial court and
Winfield implied that the trial court found her testimony not to be credible. Contrary to
defendant’s assertion, the exchange could at best be described as innocuous. The trial court was
seeking to clarify Winfield’s testimony regarding her routine activities that led to her
observations and recall of defendant’s presence in the park on a particular date and time. The
trial court’s questioning actually established that Winfield’s visit to the park was not an anomaly
and was consistent for the identified time period. Contrary to defendant’s assertions, there is
nothing to suggest that the trial court’s questioning of this witness was improper or deprived
defendant of a fair trial. The trial court’s questions or responses did not state or imply disbelief
or a personal view of Winfield’s credibility. Defendant has not demonstrated plain error.
Jackson, 292 Mich App at 597.

        In addition, the trial court instructed the jury more than once that nothing the trial court
said should be construed or interpreted by the jury as the expression of an opinion by the court.
“Jurors are presumed to follow their instructions, and instructions are presumed to cure most
errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Defendant
therefore cannot demonstrate prejudice, even assuming that plain error occurred. See Carines,
460 Mich at 763.

                    IV. DEPARTURE SENTENCES AND COURT COSTS

       Defendant contends, and the prosecution concedes, that the trial court’s imposition of
sentences exceeding the guidelines range and an award of $1,300 in court costs, without
explanation, necessitates a remand to the trial court for articulation of the factual basis for the
upward departure sentences and the costs imposed. We agree.

       A defendant need not take any special steps to preserve a challenge to a sentencing
departure. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008).

       A sentence that departs from the applicable guidelines range will be reviewed by
       an appellate court for reasonableness. Resentencing will be required when a
       sentence is determined to be unreasonable. Because 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. Sentencing courts must,
       however, continue to consult the applicable guidelines range and take it into
       account when imposing a sentence. Further, sentencing courts must justify the
       sentence imposed in order to facilitate appellate review. [People v Lockridge, 498
       Mich 358, 392; 870 NW2d 502 (2015) (citations omitted.)]

       The sentencing guidelines range for defendant’s second-degree murder convictions was
270 to 450 months, premised on a total prior record variable (PRV) score of 27 and a total
offense variable (OV) score of 215. The sentences imposed by the trial court exceed the higher
end of the sentencing guidelines range by 30 months. The sentencing guidelines range for


                                                -8-
defendant’s AWIM convictions was 171 to 285 months; defendant’s sentences for those
convictions exceed the guidelines range by 15 months.

        Although the sentencing guidelines are now advisory, “sentencing courts must justify the
sentence imposed in order to facilitate appellate review,” Lockridge, 498 Mich at 392, “which
‘includes an explanation of why the sentence imposed is more proportionate to the offense and
the offender than a different sentence would have been,’ ” People v Dixon-Bey, 321 Mich App
490, 525; 909 NW2d 458 (2017) (citation omitted).

        In this instance, the trial court acknowledged the applicable sentencing guidelines range,
but then imposed a sentence that exceeded that range, without explaining the basis for the
departure. The trial court simply stated that defendant was “put in a bad situation” and that “a lot
of brothers in similar situations if they thought someone was doing serious harm to their sisters
probably would have reacted similarly.” None of the trial court’s statements can reasonably be
read as expressing the reasoning behind an upward departure. Therefore, as the prosecution
agrees, remand is appropriate to permit the trial court an opportunity to articulate its reasons for
departing from the sentencing guidelines.

        The trial court also imposed $1,300 in court costs without explanation.
MCL 769.1k(1)(b)(iii) authorizes a trial court to impose “any cost reasonably related to the
actual costs incurred by the trial court without separately calculating those costs involved in the
particular case[.]” The statutory provision identifies examples of such costs, to include:

       (A) Salaries and benefits for relevant court personnel.

       (B) Goods and services necessary for the operation of the court.

       (C) Necessary expenses for the operation and maintenance of court buildings and
       facilities. [MCL 769.1k(1)(b)(iii).]

In People v Konopka, 309 Mich App 345, 358; 869 NW2d 651 (2015), this Court held that
“MCL 769.1k(1)(b)(iii) independently authorizes the imposition of costs in addition to those
costs authorized by the statute for the sentencing offense.” While the costs need not be
“separately calculated,” it is necessary, however, for the trial court to “establish a factual basis”
for the costs imposed under the statute. Konopka, 309 Mich App at 359-360. When a factual
basis has not been established for the costs imposed, the matter requires remand to afford the
trial court an opportunity to establish the factual basis for the costs or to alter the amount as
deemed necessary. Id. at 360. Therefore, as the prosecution also concedes, remand is required
for the trial court to establish a factual basis or alter the amount of costs imposed.




                                                -9-
                                     V. STANDARD 4 BRIEF

         Defendant raises several additional issues in his Standard 42 brief.

                                   A. OFFENSE VARIABLE 14

        Defendant argues that the trial court erred by assessing 10 points for OV 14 (defendant
the leader in a multiple offender situation). We disagree. To preserve a challenge to an OV
score, a defendant is required to raise the “issue at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed” with this Court. MCL 769.34(10).
Defendant did not object to the assessment of 10 points for OV 14 at sentencing, and did not
raise the issue in a motion for resentencing or a motion to remand. Because defendant’s
sentences were outside the guidelines range, we may review this issue for plain error. People v
Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004).

       Even if OV 14 were to be assessed at zero points, a deduction of 10 points from the total
OV score of 215 would not serve to alter the applicable sentencing guidelines range. In other
words, the subtraction of 10 points from defendant’s total OV score would not alter his OV level.
Consequently, even if we found that the trial court had committed a scoring error, defendant
would not be entitled to resentencing because any error in calculating defendant’s guidelines
range did not alter that range. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44
(2006). We decline to review this unpreserved issue further because defendant cannot
demonstrate prejudice. Kimble, 470 Mich at 312.

      B. RIGHT TO A PUBLIC TRIAL AND INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant also argues that he was denied his constitutional right to a public trial because
the trial court limited the number of his family members who could be seated in the courtroom
during the jury selection process, or in the alternative that his trial counsel was ineffective for
failing to object to this limitation. We disagree.

        “[A]n issue is preserved for appellate review when the issued was raised, addressed, and
decided by the lower court.” People v Metamora Water Serv, Inc, 276 Mich App 376, 383; 741
NW2d 61 (2007). To preserve an ineffective assistance of counsel claim, a defendant must raise
the issue in a motion for a new trial or a motion for a Ginther3 hearing in the trial court. People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). Neither defendant nor his trial counsel
raised the issue before the trial court of the alleged exclusion of the public from the voir dire of
defendant’s jury or suggested that counsel was ineffective for having failed to raise the issue to
the trial court in a motion for a new trial or a Ginther hearing. These issues are therefore
unpreserved.


2
 A supplemental appellate brief filed in propria persona by a criminal defendant under Michigan
Supreme Court Administrative Order 2004-6, Standard 4.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -10-
        We review unpreserved claims of error for plain error affecting substantial rights.
Carines, 460 Mich at 763-764. “Whether defendant was denied the effective assistance of
counsel presents a mixed question of fact and constitutional law.” People v Vaughn, 491 Mich
642, 649-650; 821 NW2d 288 (2012). We review for clear error a trial court’s factual
determinations, and review de novo whether defendant’s counsel’s conduct constituted effective
assistance. Id. Our review of defendant’s unpreserved ineffective assistance of counsel claim is
limited to “mistakes apparent on the record.” Petri, 279 Mich App at 410. We review de novo
issues of statutory interpretation. People v Rose, 289 Mich App 499, 505; 808 NW2d 301
(2010).

         The Michigan and United States Constitutions provide the right to a public trial. US
Const, Am VI; Const 1963, art 1, § 20. The right to a public trial encompasses the right to public
voir dire proceedings. Vaughn, 491 Mich at 652-653. However, “[a]lthough a public trial is
guaranteed by the Constitution, our Legislature has specifically provided that ‘for good cause’
witnesses may be excluded.” People v Insley, 36 Mich App 593, 597; 194 NW2d 20 (1971)
(citation omitted). Therefore, “[a] defendant’s Sixth Amendment right to a public trial is
limited.” Vaughn, 491 Mich at 653. A courtroom may be closed, despite a defendant’s
objection, where “the party seeking to close the hearing must advance an overriding interest that
is likely to be prejudiced, the closure must be no broader than necessary to protect that interest,
the trial court must consider reasonable alternatives to closing the proceeding, and it must make
findings adequate to support the closure.” Id. at 653; MCR 8.116(D). A less restrictive standard
is applicable when a courtroom is only partially closed. “Because the effect of a partial closure
does not reach the level of total closure, only a substantial, rather than a compelling, reason for
the closure is necessary.” People v Kline, 197 Mich App 165, 170; 494 NW2d 756 (1992).
Further, a broader and more encompassing precept is also relevant, which pertains to a trial
court’s “entitle[ment] to control the proceedings in its courtroom.” People v Johnson, 315 Mich
App 163, 179; 889 NW2d 513 (2016). This right of control by the trial court, however, cannot
come “at the expense of a defendant’s constitutional rights.” Id.

        In this instance, the record does not reflect any specific intention or instruction to close
the courtroom during voir dire. Defendant’s assertion that he was denied a public trial is based
on the following discussion between the trial court and defense counsel that occurred before jury
selection on the first day of trial:

              THE COURT: So the deputies are going to give destructions [sic] to the
       people that are in the audience. And I believe um we probably have room for is
       any of your client’s family here?

               DEFENSE COUNSEL: Your Honor I have his mother sitting in the back
       of the courtroom.

               THE COURT: Okay. She will be able to stay and then the two members
       of the victim’s [sic] family.

               DEFENSE COUNSEL: There is one other family member.



                                               -11-
               THE COURT: All right. That’s fine we have room for the four of them to
       stay I’m sure.

               DEFENSE COUNSEL: Thank you.

               THE COURT: Whenever you are ready Corporal.

              BAILIFF: Okay. If you are not on this trial you have to wait in the
       hallway.

Before this exchange, the prosecution and defense counsel had requested that testifying
witnesses be sequestered, and the trial court granted the request. Notably, defendant does not
contend that access to the courtroom was denied to the public during the trial proceedings or for
the delivery of the verdict, nor does he identify any individuals who were excluded during any
stage of the proceedings.

        Further, members of the public, including defendant’s family members, were present
during voir dire. The exclusion of certain other individuals was the product of defense counsel’s
and the prosecution’s request that any witnesses be sequestered to avoid possible influence.
Defendant does not identify any specific individuals who were precluded from being present for
the voir dire. Based on the exchange between the trial court and defense counsel, it appears that
the trial court was attempting to ensure that individuals with a personal connection to the trial
had the opportunity to be present for this stage of the proceedings. Similarly, the comment by
the bailiff suggests that only persons not associated with or interested in defendant’s trial were
asked to vacate the premises. Presumably, due to the space taken up by the jury pool awaiting
voir dire, space was limited in the courtroom. The “limited capacity of the courtroom”
comprises “a substantial reason for” a closure and does not serve to “deny [a] defendant his right
to a public trial.” People v Russell, 297 Mich App 707, 720; 825 NW2d 623 (2012).
Consequently, defendant has not demonstrated any error, much less plain error, in the voir dire
proceedings. Kline, 197 Mich App at 170.

        For the same reason, defendant has also not established that his defense counsel’s failure
to object to the asserted closure of the courtroom constituted ineffective assistance of counsel.
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

                              C. ADMISSIBILITY OF EVIDENCE

        Defendant also argues that the trial court erred by admitting a hearsay statement allegedly
made by defendant’s sister, Tamara, comprising a threat before the shooting. Further, according
to defendant, the trial court erred by permitting photographs of weapons downloaded from
defendant’s cellular telephone to be admitted into evidence, even though the weapons were not
linked or shown to be relevant to or involved in the shooting. We disagree with both assertions.

       “This Court reviews a trial court’s evidentiary ruling for an abuse of discretion.” People
v Benton, 294 Mich App 191, 195; 817 NW2d 599 (2011). “A trial court abuses its discretion
when its decision falls outside the range of reasonable and principled outcomes.” People v

                                               -12-
Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). We review de novo preliminary
questions of law surrounding the admission of evidence, such as the interpretation of a rule of
evidence. Id. at 723. “A preserved error in the admission of evidence does not warrant reversal
unless after an examination of the entire cause, it shall affirmatively appear that it is more
probable than not that the error was outcome determinative.” People v Burns, 494 Mich 104,
110; 832 NW2d 738 (2013) (citation and quotation marks omitted).

        Defendant argues that the trial court erred by admitting testimony that Tamara had stated
that she would have her brother return to the home on Fielding and “shoot this b***h up,” and
also by admitting photographs of firearms retrieved from defendant’s cellular telephone.

        “Hearsay is ‘a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Hearsay is
generally prohibited and may only be admitted at trial if provided for in an exception to the
hearsay rule.” People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010), quoting
MRE 801(c) and citing MRE 802.

       The Michigan Rules of Evidence provide an exception where the statements are of a
declarant’s “then existing state of mind, emotion, sensation, or physical condition.”
MRE 803(3). Specifically, a hearsay exception exists for:

         A statement of the declarant’s then existing state of mind, emotion, sensation, or
         physical condition (such as intent, plan, motive, design, mental feeling, pain, and
         bodily health), but not including a statement of memory or belief to prove the fact
         remembered or believed unless it relates to the execution, revocation,
         identification, or terms of declarant’s will. [MRE 803(3).]

In addition, a hearsay exception exists for excited utterances, which comprise: “A statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” MRE 803(2). The trial court found Tamara’s
statement admissible under these hearsay exceptions.

         At trial, White, the homeowner of 17510 Fielding, and his mother testified regarding the
threatening statement by Tamara.4 When Tamara made the statement, she had just been involved
in fisticuffs with Blake, her siblings and others at the Fielding Street home. Assuming the
testimony relating to Tamara’s statement to have been hearsay, the trial court did not err by
holding that the statement related to a “startling event” and occurred while Tamara “was under
the stress of excitement” and expressed her “existing state of mind [and] emotion” regarding her
future intentions or plans, as contemplated by MRE 803(2) and (3). This Court has deemed
similar statements admissible. See e.g., People v Coy, 258 Mich App 1, 13-14; 669 NW2d 831
(2003). Because we hold that the trial court did not err by admitting the statement under these
exceptions, we do not address the trial court’s determination that the evidence was also
admissible as the nonhearsay statement of a coconspirator. See MRE 801(d)(2).


4
    Defendant’s argument on appeal only appears to contest the admission of White’s testimony.


                                                -13-
        Defendant also challenges the trial court’s admission of photographs of firearms retrieved
from his cellular telephone, which were not specifically linked to the weapon used in the
shooting. Photographic evidence is admissible if relevant, pertinent, competent, and material to
any issue in the case. See People v Eddington, 387 Mich 551, 562; 198 NW2d 297 (1972). The
photographs from defendant’s cellular telephone were relevant because they demonstrated that
defendant had access to the type of weapon used to fire at the Fielding Street residence. Since
the police did not recover the weapon used in this shooting, and there was no other evidence
showing that defendant had access to this type of weapon, this evidence had probative value.
MRE 401, 402. Howard described the weapon used by the shooter as an “Uzi,” with extended or
extra clips. Several 9 millimeter and .45 caliber shell casings were found at the front of the
home. The search of defendant’s home revealed .45 caliber rounds but no weapons. Defendant
had CPLs for a .45 caliber handgun and a 7.62 short pistol version of an AK 47. Officer Mark
Lambert of the Michigan State Police testified that one of the photographs admitted into
evidence showed defendant with a “short barrel machine gun like pistol” similar to an Uzi.
Consequently, the photographs were relevant, pertinent, competent, and material to issues in the
case, and the admission of the photographs was not an abuse of discretion by the trial court.
Eddington, 387 Mich at 562.

        Further, even if the admission of the photographs were deemed to be in error, defendant
cannot demonstrate that it is “more probable than not” that the evidence was outcome
determinative. See Burns, 494 Mich at 110; see also People v Lukity, 460 Mich 484, 495-496;
596 NW2d 607 (1999). Howard positively identified defendant as the shooter. Cellular
telephone records support the conclusion that defendant was traversing the city of Detroit, from
east to west, after his siblings were involved in an altercation at the Fielding address. Tamara’s
threat, coupled with the statement from one of the shooters (attributed by Howard to defendant)
suggesting that his actions were in retribution for acts relating to family members, were more
than sufficient to convict defendant even without the admission of the photographs.

                                    D. JURY INSTRUCTIONS

       Finally, defendant argues that the trial court erred by failing to provide the jury with a
requested instruction for voluntary manslaughter. We disagree.

        Defendant’s counsel requested such an instruction, which the trial court denied; the issue
is therefore preserved. People v Sabin (On Second Remand), 242 Mich App 656, 657; 620
NW2d 19 (2000). “[J]ury instructions that involve questions of law are also reviewed de novo.
But a trial court’s determination whether a jury instruction is applicable to the facts of the case is
reviewed for an abuse of discretion.” People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006)
(citations and quotation marks omitted).

       Defendant was charged with two counts of first-degree murder, MCL 750.316, but
convicted of second-degree murder, MCL 750.317. Defendant requested instructions on second-
degree murder and voluntary manslaughter. The trial court agreed to provide a second-degree
murder instruction, but required defense counsel to present an argument for the inclusion of an




                                                -14-
instruction on voluntary manslaughter.5 Defense counsel, in asserting the propriety of a
voluntary manslaughter instruction, argued as follows:

               This is our alleged argument that . . . we’re alleging that there is a fight
       that take [sic] place earlier in the afternoon on Fielding street. It was a very
       heated moment people very angry minutes later, 15 minutes later, people come
       and shoot up this house on Fielding [S]treet where two people die. And . . . it was
       not a cooling off period continuously from the time this fight took place up until
       the time the shooters left the scene.

In denying the request, the trial court stated:

              Well, I think that’s what gets you to murder two but not involuntary [sic]
       manslaughter. I am not going to give involuntarily [sic] manslaughter. But this
       does not mean that depending on what the further testimony is it doesn’t give you
       an opportunity to make another argument at a later point if there’s additional
       evidence that you think will support it. Okay.

       Our Supreme Court has explained and distinguished the concepts of manslaughter (both
voluntary and involuntary) and murder as follows:

               Regarding voluntary manslaughter, both murder and voluntary
       manslaughter require a death, caused by defendant, with either an intent to kill, an
       intent to commit great bodily harm, or an intent to create a very high risk of death
       or great bodily harm with knowledge that death or great bodily harm was the
       probable result. However, the element distinguishing murder from manslaughter-
       malice-is negated by the presence of provocation and heat of passion. Thus, we
       conclude, the elements of voluntary manslaughter are included in murder, with
       murder possessing the single additional element of malice.

               Regarding involuntary manslaughter, the lack of malice is evidenced by
       involuntary manslaughter’s diminished mens rea, which is included in murder’s
       greater mens rea.



5
   We note that, in the relevant transcript, the trial court appears to refer to “involuntary
manslaughter.” It matters not whether this is a transcription error or a misstatement by the trial
court, because defense counsel was clear in asking for an instruction on voluntary manslaughter
(though not correcting the trial court’s apparent reference to involuntary manslaughter). In any
event, while not requested by defendant, there was also no demonstrated basis for an instruction
on involuntary manslaughter. Defendant’s arrival at the Fielding Street home, shooting a
weapon at the occupied dwelling with people in close proximity, as well as firing directly into
the front room of the home, does not evidence “an unintended result” or “less than an intent to do
great bodily harm, an intent to kill, or the wanton and wilful disregard of its natural
consequences.” Mendoza, 468 Mich at 541 (citation omitted).


                                                  -15-
                                             * * *

            Unlike murder, involuntary manslaughter contemplates an unintended
            result and thus requires something less than an intent to do great bodily
            harm, an intent to kill, or the wanton and wilful disregard of its natural
            consequences.

                                             * * *

       Thus, we conclude that the elements of involuntary manslaughter are included in
       the offense of murder because involuntary manslaughter’s mens rea is included in
       murder’s greater mens rea.

              Accordingly, we hold the elements of voluntary and involuntary
       manslaughter are included in the elements of murder. Thus, both forms of
       manslaughter are necessarily included lesser offenses of murder. . . .
       Consequently, when a defendant is charged with murder, an instruction for
       voluntary and involuntary manslaughter must be given if supported by a rational
       view of the evidence. [People v Mendoza, 468 Mich 527, 540-541; 664 NW2d
       685 (2003) (citations omitted).]

       This Court has stated that

       the degree of provocation required to mitigate a killing from murder to
       manslaughter is that which causes the defendant to act out of passion rather than
       reason. Further, in order for the provocation to be adequate it must be that which
       would cause a reasonable person to lose control. Whether the provocation was
       reasonable is a question of fact; but if no reasonable jury could find that the
       provocation was adequate, the court may exclude evidence of the provocation.
       [People v Mitchell, 301 Mich App 282, 286-287; 835 NW2d 615 (2013)
       (citations, quotation marks and brackets omitted).]

        Based on the evidence presented at trial, the trial court properly declined to provide a
voluntary manslaughter instruction because of the absence of “the degree of provocation required
to mitigate a killing from murder to manslaughter.” Id. Defendant was not present during the
fight involving his siblings, but only later learned of the altercation. Defendant had to travel
across town by car to arrive at the Fielding Street address. By that time, the altercation with his
siblings had ended and they had left the area. While the incident may have angered defendant,
his lack of involvement in the underlying events, the necessity and time required to travel across
town, and the absence of any physical injury to his siblings, demonstrate the absence of adequate
provocation for the shootings. Because no reasonable jury could find that the provocation in this
matter was adequate to cause a reasonable person to lose control in the manner that defendant
did, the trial court did not err by denying defendant’s request for an instruction on voluntary
manslaughter. Id.




                                               -16-
                                    VI. CONCLUSION

        We affirm defendant’s convictions and his felony-firearm sentence, but remand this
matter to the trial court for articulation of the reasons for departing from the sentencing
guidelines in imposing the second-degree murder and AWIM sentences and to establish a factual
basis for the imposition of $1,300 in court costs. We do not retain jurisdiction.



                                                         /s/ Michael J. Riordan
                                                         /s/ Kirsten Frank Kelly
                                                         /s/ Mark T. Boonstra




                                            -17-
