                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 3, 2015
               Plaintiff-Appellee,

v                                                                    No. 317804
                                                                     Wayne Circuit Court
NASIR LAMONT BANKS,                                                  LC No. 12-001386-FC

               Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ.

PER CURIAM.

      Defendant appeals his jury trial convictions of multiple criminal offenses, including
murder. For the reasons stated below, we affirm.

                           I. FACTS AND PROCEDURAL HISTORY

        The prosecution charged defendant with the murders of two people at a drug house in
Detroit. At trial,1 witness S.J., one of the drug dealers who used the house to sell drugs, testified
that he awoke at the house on the morning of November 30, 2011 to the sound of gunfire, and
found that he had suffered three gunshot wounds. He fled to an upstairs bathroom, and heard
more gunshots. After a few minutes, S.J. attempted to go downstairs, and saw defendant near the
bottom of the steps holding a shotgun and a bag of marijuana that the drug dealers kept in the
house. S.J. retreated to the attic until the police arrived. As officers assisted him downstairs, the
witness saw the two victims bloodied and lying on the floor.2

       After a hospital stay, S.J. offered a statement on the shooting, in which he described
defendant as the shooter. He subsequently identified defendant as the shooter in a photographic
lineup. S.J.’s identification of defendant as the murderer was supported by testimony from a


1
  This appeal is from defendant’s retrial—the jury in his initial trial could not reach a verdict.
The evidentiary portion of defendant’s first trial occurred in November and December of 2012;
the evidentiary portion of defendant’s retrial occurred in July 2013.
2
 S.J. also testified that defendant’s brother shot him in April 2012, in apparent retaliation for his
cooperation with the authorities. We discuss this episode in greater detail later in the opinion.


                                                -1-
frequent customer of the drug house, who saw a man who resembled defendant leaving the house
with a shotgun on the morning of the shooting.3 The customer also gave a statement and
description to the police, and identified defendant as the man he saw from a photographic lineup.

       The jury convicted defendant of first degree felony murder under MCL 750.316(1)(b),
second degree murder under MCL 750.317, assault with intent to commit murder under MCL
750.83, felon in possession of a firearm under MCL 750.224f, and possession of a firearm during
the commission of a felony under MCL 750.227b.

        On appeal, defendant argues that the trial court denied him a fair trial when it: (1) denied
defendant’s motion for an extended adjournment4; (2) allowed introduction of in-court
identifications supposedly tainted by “suggestive” photographic lineups; (3) permitted testimony
on a retaliatory shooting allegedly committed by defendant’s brother; and (4) issued a jury
instruction on aiding and abetting.5 Defendant also claims that his conviction for second degree
murder must be vacated because it violates the prohibition against double jeopardy.

                                          II. ANALYSIS

                                A. ADJOURNMENT REQUEST

                                           1. WAIVER

       A preserved challenge to a trial court’s decision on whether to grant an adjournment is
reviewed for an abuse of discretion. People v Jackson, 467 Mich 272, 276; 650 NW2d 665




3
 The customer, A.B., testified that he was driving his car past the drug house the morning of the
murders, because he intended to go inside to buy drugs.
4
  Defendant also asserts that the trial court’s action is linked to ineffective assistance from his
attorney—namely, that his attorney did not have adequate time to prepare for his case.
5
  Defendant also makes a frivolous argument that involves the provision of transcripts of witness
testimony to the jury. The jury made a reasonable request to rehear S.J.’s testimony. People v
Howe, 392 Mich 670, 677; 221 NW2d 350 (1974). Contrary to defendant’s argument, the trial
court repeatedly advised the jury of its intent to supply the entirety of S.J.’s testimony as soon as
it could, part in writing and part by read back. The trial court also ensured fairness to the defense
by urging the jury to review both the transcribed portion of S.J.’s testimony and the portion to be
later read back. The trial court acted within the discretion vested by MCR 2.513(P) when it
repeatedly informed the jury of its intent to provide the entirety of S.J.’s trial testimony and
instructed the jury to consider the entire testimony. People v Carter, 462 Mich 206, 218; 612
NW2d 144 (2000). Defendant’s citation of federal case law, which supposedly cautions against
reading back only a portion of trial testimony, ignores the Michigan Supreme Court’s repeated
rejections of any basis for concern in following this procedure. Howe, 392 Mich at 675-676;
Klein v Wagenheim, 379 Mich 558, 561; 153 NW2d 663 (1967).


                                                -2-
(2002).6 A defendant waives his ability to challenge the length of an adjournment “when defense
counsel clearly expresses satisfaction with the trial court’s decision” on the adjournment. People
v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (internal quotations and citation omitted)
(explaining that waiver occurs when a party intentionally relinquishes or abandons a known
right, and a party “who waives his rights under a rule may not then seek appellate review of a
claimed deprivation of those rights, for his waiver has extinguished any error”).

        Here, defendant’s attorney requested an adjournment to read trial transcripts and
depositions from defendant’s first trial. The trial court granted an adjournment of one day to
give defense counsel an opportunity to adequately review the record, and specifically asked the
attorney whether he would be “completely prepared” to “go forward with the trial,” to which the
attorney responded “by tomorrow, I will be prepared your Honor.” Because “defense counsel
clearly expresse[d] satisfaction with [the] trial court’s decision [on the adjournment], counsel’s
action will be deemed to constitute a waiver,” and defendant is barred from raising any claim
related to the trial court’s one day adjournment of the trial. Kowalski, 489 Mich at 503.7

        Despite the fact that defendant has waived his argument that the trial court abused its
discretion on his request for adjournment, he links this argument with a claim for ineffective
assistance of counsel—namely, because his retrial attorney did not make effective use of the
record from his first trial, the retrial attorney gave him ineffective assistance.8

                       2. INEFFECTIVE ASSISTANCE OF COUNSEL

       Because defendant did not seek a new trial or an evidentiary hearing on the basis of any
alleged ineffective assistance of counsel, our review is limited to “errors apparent on the record.”
People v Lockett, 295 Mich App 165, 186; 814 NW2d 295 (2012). Whether a defendant has
received the effective assistance of counsel comprises a mixed question of fact and law. People
v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “The trial court’s factual findings are
reviewed for clear error, while its constitutional determinations are reviewed de novo.” Lockett,
295 Mich App at 186.

        “In Strickland v Washington, the Supreme Court of the United States stated that in order
to receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish


6
 The Michigan Supreme Court has noted that the terms “adjournment” and “continuance” are
used interchangeably to describe the process of adjourning a trial. Jackson, 467 Mich at 276 n 5.
7
  The section addressing the adjournment in defendant’s brief on appeal distorts the record on
occasion. For instance, defendant states that his defense counsel had not had time to review
“eight volumes of transcript from the previous trial,” when in fact defendant’s attorney received
300 pages of transcript and deposition testimony (emphasis original).
8
  As we explain infra, defense counsel’s performance at retrial actually demonstrates an
extensive familiarity with the record of the original trial, and further belies defendant’s claims
that the trial court abused its discretion in refusing to grant a new attorney and/or longer
adjournment.


                                                -3-
that ‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288
(2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674
(1984).9 Effective assistance of counsel is “strongly presumed, and the reviewing court should
not evaluate an attorney’s decision with the benefit of hindsight.” People v McMullan, 284 Mich
App 149, 155; 771 NW2d 810 (2009). Furthermore, defense counsel possesses “wide discretion
in matters of trial strategy.” People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).

        Here, as noted, defendant asserts that his attorney gave him ineffective assistance because
the attorney supposedly did not use inconsistent testimony from the first trial to impeach two
witnesses, S.J. and A.B., at retrial. Though defendant raises multiple instances of alleged
ineffective assistance, all of his allegations lack merit, and only one deserves extended
discussion.10

        Defendant says that his attorney should have made use of S.J.’s testimony from the first
trial, which stated that S.J. did not immediately name defendant as the shooter when the police
arrived at the scene. But it is unlikely defendant’s attorney needed to draw any distinction
between S.J.’s testimony on this subject at the first trial and S.J.’s testimony during the retrial,
because his retrial testimony on the matter was similar to his original testimony. In any event,
defendant’s lawyer spent almost the entirety of his closing argument questioning the accuracy
and veracity of S.J.’s testimony. And defense counsel specifically emphasized that some of the



9
   To demonstrate that his lawyer’s performance fell below an objective standard of
reasonableness, a defendant must show that “the identified acts or omissions were outside the
wide range of professionally competent assistance.” Vaughn, 491 Mich at 670.
10
   Defendant’s other claims for ineffective assistance are belied by the record. Defendant says
defense counsel failed to impeach S.J.’s retrial testimony that he did not hear gunshots while in
the attic, with S.J.’s testimony at preliminary examination testimony that he heard gunshots
while in the attic—when in fact counsel impeached S.J.’s retrial testimony for this reason. The
same is true of defendant’s claim that counsel failed to impeach S.J.’s retrial testimony that the
shots he heard while in the bathroom were from a high-caliber weapon, with S.J.’s preliminary
examination testimony that the shots while in the bathroom were from a handgun. Again,
defendant’s retrial attorney impeached S.J.’s retrial testimony for this reason. Likewise,
defendant’s claim that counsel should have impeached S.J.’s retrial testimony on defendant’s
appearance ignores the fact that counsel highlighted inconsistencies in S.J.’s testimony on
defendant’s appearance. And despite defendant’s claims that counsel did not use S.J.’s original
trial testimony on his marijuana use to impeach his retrial testimony on the same, defense
counsel actually did impeach S.J. on this topic.
In addition, defendant’s assertion that counsel did not impeach A.B.’s retrial testimony on the
appearance of the shooter, with a portion of A.B.’s testimony from the original trial that
described the shooter as looking similar to S.J., ignores the fact that counsel questioned A.B. on
this subject.


                                                -4-
police officers who responded to the scene documented only S.J.’s statement that an unknown
black male had shot at him. In sum, the record belies defendant’s extensive claims of ineffective
assistance, and he has failed to establish that counsel deprived him “of a substantial defense.”
People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

                                B. PHOTOGRAPHIC LINEUPS

        A trial court’s decision on whether to suppress identification evidence is reviewed for
clear error. People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). “Clear error
exists when the reviewing court is left with a definite and firm conviction that” the trial court
made a mistake. Id. “Issues of law relevant to a motion to suppress are reviewed de novo.” Id.

       “A photographic identification procedure violates a defendant’s right to due process of
law when it is so impermissibly suggestive that it gives rise to a substantial likelihood of
misidentification.” People v Gray, 457 Mich 107, 111; 577 NW2d 92 (1998) (footnote omitted).
A court reviewing whether a lineup is impermissibly suggestive may consider the following:

       the opportunity of the witness to view the criminal at the time of the crime, the
       witness’ degree of attention, the accuracy of the witness’ prior description of the
       criminal, the level of certainty demonstrated by the witness at the confrontation,
       and the length of time between the crime and the confrontation. [People v
       Kurylczyk, 443 Mich 289, 306; 505 NW2d 528 (1993) (opinion by GRIFFIN, J.).]

       If an identification procedure is “impermissibly suggestive,” the reviewing court then
must determine “whether the victim had an independent basis to identify the defendant in court.”
Gray, 457 Mich at 114–115. The defendant bears the burden of establishing that a lineup was
unconstitutional. People v Williams, 244 Mich App 533, 542; 624 NW2d 575 (2001).

        Here, defendant unconvincingly argues that the police gave S.J. and A.B. impermissibly
suggestive pretrial photographic lineups, and that the trial court erred when it refused to suppress
their identification testimony.11 Both S.J. and A.B. identified defendant in photographic lineups
that were not “impermissibly suggestive.”




11
  Defendant also argues that the prosecution did not establish that either S.J. or A.B. possessed
an independent basis for identifying defendant in court. This inquiry is irrelevant, however,
because the pretrial photographic lineups given to both S.J. and A.B. were not impermissibly
suggestive. See Gray, 457 Mich at 114–115; and People v Barclay, 208 Mich App 670, 675;
528 NW2d 842 (1995) (“[t]he need to establish an independent basis for an in-court
identification arises where the pretrial identification is tainted by improper procedure or is
unduly suggestive”).
In any event, were we to assume that the photographic lineups were impermissibly suggestive,
both S.J. and A.B. had independent bases to identify defendant. Defendant concedes that he and
S.J. knew one another, and S.J. testified that he had an unobstructed view of defendant when he

                                                -5-
        S.J. viewed the photographic lineup on December 12, 2011, less than two weeks after the
shootings. Both S.J. and a police officer testified that S.J. was mentally alert during the viewing,
and that S.J. immediately identified defendant as the shooter with certainty. S.J. denied that the
police suggested which photograph he should select. Instead, S.J. stated that he immediately
selected defendant as the assailant because he had encountered defendant on at least 25 occasions
before the shooting, and that he had an unobstructed view of defendant when he attempted to
escape the shooting down the stairway. And, though S.J. recalled that, when presenting the
photo array, a police officer asked him which man shot him, “the fact a victim is told the attacker
is in the lineup does not alone render a lineup unduly suggestive.” People v Sawyer, 222 Mich
App 1, 3; 564 NW2d 62 (1997).

        A.B. viewed a photographic lineup two weeks after the shooting. Both A.B. and a police
officer testified that a police officer asked A.B. whether he recognized anyone on the array from
the drug house, and that A.B., without coercion or suggestion, selected the photograph of
defendant as the man he saw holding a shotgun outside the house the morning of the shooting.
A.B. and the officer’s testimony differed only in that the officer estimated A.B. selected
defendant’s photograph in approximately five seconds, while A.B. did not recall the precise
amount of time it took for him to make the selection. Again, A.B. testified that on the morning
of the shooting, while he was driving past the drug house, he saw a man, who wore nothing to
conceal his head, leaving the house with a shotgun.

        As such, there is nothing in the record that indicates that the photographic lineup was so
“impermissibly suggestive” that it violated defendant’s constitutional rights.12 Accordingly, the
trial court properly rejected defendant’s attempt to suppress the identification evidence.

                                 C. OTHER ACTS EVIDENCE

                                    1. LEGAL STANDARDS


attempted to flee the shooting. A.B. testified that he saw a man who looked liked defendant
leaving the drug house with a shotgun immediately after the shooting.
12
  Defendant also makes two unavailing arguments related to the appearance of the people in the
photographs. His claim that his lineup photograph includes a clearly visible teardrop tattoo near
his eye is belied by the photograph—we are not able to discern a tattoo or anything else unfairly
suggestive about the photograph array, and nothing in the evidentiary hearing indicates that such
a tattoo was apparent to S.J. and A.B. when they made the identification. And, in any event,
“[p]hyiscal differences generally relate only to the weight of an identification and not to its
admissibility.” People v Hornsby, 251 Mich App 462, 466; 650 NW2d 700 (2002); and
McDade, 301 Mich App at 357.
Defendant also says that the lineup was suggestive because S.J. and A.B. identified him as
having either an afro or braids, and facial hair, but the lineup did not contain photographs with
individuals that had afros or braids, or facial hair. However, defendant fails to explain how these
differences in appearance would result in a substantial likelihood of misidentification, “as
opposed to merely constituting ‘noticeable’ differences.” McDade, 301 Mich App at 358.


                                                -6-
        Preliminary legal issues “regarding [evidence] admissibility based on construction of a
constitutional provision, rule of evidence, court rule, or statute” are reviewed de novo. People v
Jambor (On Remand), 273 Mich App 477, 481; 729 NW2d 569 (2007). A trial court’s ruling
whether to admit evidence is reviewed for an abuse of discretion. Id. “A trial court abuses its
discretion when its decision falls outside the range of principled outcomes.” People v Feezel,
486 Mich 184, 192; 783 NW2d 67 (2010) (internal quotation and citation omitted).

        MRE 404(b)(1)13 prohibits the admission of evidence of a defendant’s other acts or
crimes if it is introduced solely for the purpose of showing that defendant’s action conformed
with his criminal character. People v Sabin (After Remand), 463 Mich 43, 56; 614 NW2d 888
(2000). Evidence of a defendant’s other acts or crimes is admissible when: (1) “the prosecutor . .
. offer[s] the ‘prior bad acts’ evidence under something other than a character or propensity
theory”; (2) the other acts evidence is relevant under MRE 402; (3) the probative value of the
evidence is not substantially outweighed by the risk of unfair prejudice under MRE 403. People
v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004). On request, the trial court may provide a
limiting instruction that describes the proper consideration of other acts evidence. People v
Starr, 457 Mich 490, 496; 577 NW2d 673 (1998).

       Evidence “other than a character or propensity theory” includes evidence that shows a
defendant’s “scheme, plan, or system.” MRE 404(b)(1). Relevant evidence is evidence that
“make[s] a material fact at issue more probable or less probable than it would be without the
evidence.” People v Crawford, 458 Mich 376, 387; 582 NW2d 785 (1998).

       Relevant evidence can be excluded if it “its probative value is substantially outweighed
by the danger of unfair prejudice. . .” MRE 403. “Unfair prejudice may exist where there is a
danger that the evidence will be given undue or preemptive weight by the jury or where it would
be inequitable to allow use of the evidence.” People v Blackston, 481 Mich 451, 462; 751 NW2d
408 (2008). Evidence is not unfairly prejudicial simply because it “damage[s] . . . the
[defendant’s] cause.” People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995). When it
balances the probative force of evidence against its prejudicial effect, a court may look to

          the time required to present the evidence and the possibility of delay, whether the
          evidence is needlessly cumulative, how directly the evidence to prove the fact for
          which it is offered, how essential the fact sought to be proved is to the case, the
          potential for confusing or misleading the jury, and whether the fact can be proved



13
     MRE 404(b)(1) states that:
          Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
          person in order to show action in conformity therewith. It may, however, be admissible
          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
          when the same is material, whether such other crimes, wrongs, or acts are
          contemporaneous with, or prior or subsequent to the conduct at issue in the case.


                                                  -7-
       in another matter without as many harmful collateral effects. [Blackston, 481
       Mich at 462.]

       “Rule 403 determinations are best left to a contemporaneous assessment of the
presentation, credibility, and effect of the testimony by the trial judge.” Id. (internal quotation
marks omitted).

                                 2. FACTUAL BACKGROUND

        In defendant’s retrial, S.J. testified that he identified defendant as the shooter at a
February 2012 preliminary examination, and that he saw defendant and his brother, Rahman
Banks, in court during other preliminary examination hearings. The prosecutor also played a
recorded January 2012 telephone conversation14 between Rahman and defendant for the jury, in
which the brothers cryptically discuss exchanging “information” on an unidentified person. The
conversation indicated that Rahman was monitoring someone—he told defendant “I been sittin’
there for a minute and I ain’t seen him,” and that Rahman “got connections.”

        S.J. testified that in April 2012, he was walking along Gratiot Avenue during the day,
when Rahman emerged from a stopped truck, drew a handgun, stated “What’s up now?”—which
S.J. understood to mean retaliation—and shot S.J. five or six times.15 The Wayne County
Sherriff’s deputy testified that Rahman visited defendant in jail three days before this shooting
occurred.

        Over defendant’s objection at his initial trial, the court held that the Rahman-related
testimony and phone conversation were admissible under MRE 404(b), and that they were not
unfairly prejudicial under MRE 403. It reasoned that the record supported a reasonable
determination that defendant participated in planning S.J.’s second shooting. Defendant’s
attorney again objected to the evidence at retrial, but the trial court again admitted the evidence,
and made reference to its earlier ruling on the matter.

        Defendant makes two linked arguments on appeal to claim that the trial court abused its
discretion when it admitted the testimony on the above evidence. He says that the testimony on
Rahman’s attack on S.J., the April 2012 jail visit, and the phone recording were used as “other
acts” evidence for improper purposes that violated MRE 404(b). In the alternative, defendant
argues that the probative value of this evidence was substantially outweighed by its unfairly



14
   Defendant made the phone call from the Wayne County Jail, and a sheriff’s deputy testified
that the phone call was recorded, as are all phone calls from the jail.
15
   S.J. testified that he identified Rahman Banks as his April 2012 assailant to the police and at
Rahman’s trial. After a bench trial in the Wayne Circuit, the court convicted Rahman of multiple
crimes, including witness intimidation and retaliation against a witness. Another panel of our
Court affirmed most of the trial court’s ruling. See People v Rahman Banks, unpublished
opinion per curiam of the Court of Appeals, issued June 17, 2014 (Docket No. 313887), slip op
at 5–9. Application for leave to the Michigan Supreme Court remains pending.


                                                -8-
prejudicial effect, and thus should have been barred under MRE 403. Neither argument is
convincing, and we address each in turn.

                                        3. APPLICATION

                                       3A. MRE 404(B)(1)

        Defendant’s specific assertions regarding MRE 404(b)(1)—namely, that the prosecutor
failed to establish defendant’s involvement in the April 2012 shooting, and that the trial court
improperly allowed the jury to draw its own conclusions on this matter—are flawed because they
are largely unrelated to the types of evidence that MRE 404(b)(1) is intended to prohibit. As
noted, MRE 404(b)(1) is intended to prevent evidence used to show that defendant acted in
conformance with his criminal character. But defendant does not argue in these terms. Instead,
he states that the evidence failed to connect him to the April 2012 shooting—an issue which is
not relevant to a MRE 404(b)(1) determination.16

        In any event, defendant’s arguments, such as they are, are wrong. This is true whether
they are analyzed under MRE 404(b)(1) or simple common sense. The phone conversation,17 jail
visit, and testimony on Rahman’s attack do connect defendant to the second shooting of S.J.
Together, they give rise to the reasonable inference that defendant asked Rahman to kill S.J., the
main witness against him, before S.J.’s further testimony at the preliminary examination and
before the hearing date originally scheduled to suppress S.J.’s identification testimony.

       Accordingly, the evidence was relevant to defendant’s case—it tended to demonstrate
that S.J. correctly identified defendant as the November 2011 shooter who committed two
murders.18 It possessed even more relevance because defendant’s trial strategy involved




16
   Defendant’s complaint that the trial court delegated to the jury the court’s responsibility to
determine whether the prosecutor had provided sufficient foundational evidence “to support a
finding by the jury that the defendant committed the other act,” is without merit. People v
Vandervliet, 444 Mich 52, 92; 508 NW2d 114 (1993) (opinion of LEVIN, J.), amended 445 Mich
1205 (1994). Defendant did not raise this claim in the trial court and mischaracterizes the record.
The record reveals that the trial court implicitly found that the prosecutor had presented
sufficient foundational evidence.
17
   Nor is the phone conversation is hearsay—it was not offered to prove that Rahman “got
connections” or whether he was “sittin’ there for a minute and . . . ain’t seen him.” Instead it was
offered to show that S.J. credibly identified defendant as the gunman who shot him and
murdered two others in November 2011. See MRE 801.
18
  See People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996) (affirming the trial court’s
admission of the defendant’s threat against a victim independent of MRE 404(b) because “[a]
defendant’s threat against a witness is generally admissible” as “conduct that can demonstrate
consciousness of guilt”).


                                                -9-
discrediting the veracity of S.J.’s testimony. The prosecution explicitly used the evidence for
these purposes—it did not use the evidence to show that defendant was a bad person who
committed the November 2011 murders in conformity with his bad character. Because the
prosecution did not use the phone conversation, jail visit, and testimony on Rahman’s attack in
this way, defendant’s MRE 404(b)(1) argument is inapposite and irrelevant to the determination
of this case.19

       As such, although the trial court erroneously admitted the above evidence under MRE
404(b), the court reached the correct result and properly admitted the evidence. People v Powell,
303 Mich App 271, 279 n 1; 842 NW2d 538 (2013).

                                          3B. MRE 403

       Defendant’s argument that the trial court erred when it refused to bar the jail visit, phone
recording, and Rahman-related testimony under MRE 403 is equally unavailing. None of the
evidence required much time to present or caused any likelihood of delaying the trial, nor was it
cumulative. It tended to show defendant’s consciousness of guilt in the November 2011
shooting and enhanced the credibility of S.J.’s identification of defendant as the shooter, both
matters in dispute. There is no potential that the evidence on Rahman’s April 2012 attack on S.J.
might have confused or misled the jury as to the crimes for which defendant had been charged—
the November 2011 drug house shooting. And there is no indication that the prosecutor could
have bolstered S.J.’s credibility on the November 2011 shooting by presenting other evidence
that would not have had “as many harmful collateral effects.” Blackston, 481 Mich at 462.

       Accordingly, the trial court properly held that MRE 403 did not require exclusion of
evidence on the jail visit, phone recording, or testimony on Rahman’s April 2012 shooting of S.J.

                     D. AIDING AND ABETTING JURY INSTRUCTION

        Claims of instructional error are reviewed de novo. People v Bartlett, 231 Mich App
139, 143; 585 NW2d 341 (1998). Jury instructions must include all elements of the charged
offenses, and must not omit material issues, defenses, and theories that the evidence supports.
Id. Jury instructions do not qualify as erroneous if they fairly present to the jury the issues to be
tried and sufficiently protect the defendant’s rights. People v Knapp, 244 Mich App 361, 376;
624 NW2d 227 (2001). An appellate court confines its review of unpreserved instructional
challenges to a determination of whether plain error affected the defendant’s substantial rights.
Kowalski, 489 Mich at 505–506.



See also People v Spillman, 399 Mich 313, 320; 249 NW2d 73 (1976) (admitting evidence of the
defendant’s crime against the same victim because it “tends to make this witness’ identification
of defendant more credible”).
19
   Moreover, the trial court instructed the jury that it should not consider evidence on Rahman’s
April 2012 shooting of S.J. as proof that defendant “is a bad person or . . . is likely to commit
crimes.” See Blackston, 481 Mich at 462.


                                                -10-
        Defendant argues that the trial court erred when it issued an aiding and abetting jury
instruction, and asserts that the instruction denied him a fair trial. But defense counsel waived
appellate review of any instructional issues. Before the trial court read the jury the final
instructions, the prosecutor stated that she had given the court a copy of the requested
instructions, and defense counsel responded, “I have had a chance to look at them. I have no
objections.” In so doing, defendant waived his right to challenge instructional issues on appeal.20

        In the alternative, defendant says his counsel provided him ineffective assistance by
failing to challenge the aiding and abetting instruction.21 “To place the issue of aiding and
abetting before a trier of fact, the evidence need only tend to establish that more than one person
committed the crime, and that the role of a defendant charged as an aider and abettor amounts to
something less than the direct commission of the offense.” People v Vaughn, 186 Mich App
376, 382; 465 NW2d 365 (1990).

        The trial court did not explain the evidentiary basis that warranted the aiding and abetting
instruction during the retrial, presumably because defense counsel said he had no instructional
objections. Nor did the prosecutor offer evidence that anyone else participated in the charged
crimes, and no evidence gave rise to a reasonable inference that any other individual participated
as a potential guilty principal. Vaughn, 186 Mich App at 382. Accordingly, the trial court
should not have issued the instruction on aiding and abetting.

        The trial court’s error, however, was harmless. Ample, properly admitted evidence
established defendant’s guilt, including the eyewitness identification testimony by S.J. and A.B.
And, dispositive in the context of a claim for ineffective assistance of counsel, defendant is
unable to show that the outcome of his trial “would have been different” had his counsel objected
to the aiding and abetting instruction. Vaughn, 491 Mich at 669.

                                   E. DOUBLE JEOPARDY22

       If a jury convicts a defendant of both second degree murder and first degree felony
murder, and both convictions arose from the same victim’s killing, the constitutional prohibition
against double jeopardy is violated. People v Clark, 243 Mich App 424, 429; 622 NW2d 344



20
   See Kowalski, 489 Mich at 504–505 n 28 (approvingly citing multiple Court of Appeals
decisions holding that an attorney’s statement, “I have no objections,” embodied “express and
unequivocal indications that he approved of the instructions,” and affirmatively waived and
extinguished claims of appellate error).
21
  See section A2, supra, for a discussion on the relevant legal standards for evaluating a claim
for ineffective assistance of counsel.
22
  Because defendant failed to raise a double jeopardy claim before the trial court, the issue is
unpreserved, and we review the matter only to ascertain whether any plain error “affected the
defendant’s substantial rights, that is, the error affected the outcome of the lower court
proceedings.” People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).


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(2000). In such a situation, the judgment can be remedied by vacating one of the sentences and
retaining the other. Id.

        Here, the jury convicted defendant of four counts of murder for the killings of two
victims: first degree felony murder and second degree murder for the killing of one victim, and
first degree felony murder and second degree murder for the killing of the other. At the
sentencing hearing, the trial court acknowledged that the jury had returned four murder
convictions for the killing of two victims, recognized that “a Defendant cannot be sentenced on
two different types of murder,” and vacated the “second degree murder counts.” Defendant
provides no authority that instructs a trial court to use any other particular language to effectively
vacate a conviction and sentence, and his argument that the trial court did not effectively vacate
his sentences for second degree murder has no merit whatsoever.23

       Affirmed.

                                                              /s/ Christopher M. Murray
                                                              /s/ Henry William Saad
                                                              /s/ Kirsten Frank Kelly




23
  The Michigan Department of Corrections’ Offender Tracking Information System website for
defendant lists only his two first degree felony murder convictions as active sentences.


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