                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 19, 2017
               Plaintiff-Appellee,

v                                                                  No. 334463
                                                                   Wayne Circuit Court
CHARLES JAMES COX,                                                 LC No. 16-000906-01-FC

               Defendant-Appellant.


Before: METER, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals his jury convictions of first-degree premediated murder, MCL
750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b), carjacking, MCL 750.529a,
armed robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, and possession
of a firearm during the commission of a felony (felony-firearm) (second offense), MCL
750.227b. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to life
imprisonment without parole for the first-degree premediated murder and first-degree felony
murder convictions, 500 to 1,000 months’ imprisonment for the carjacking and armed robbery
convictions, 40 to 60 months’ imprisonment for the felon-in-possession conviction, and five
years’ imprisonment for the felony-firearm conviction.

      We affirm defendant’s convictions, but remand for the ministerial task of amending the
judgment of sentence to reflect a single count of first-degree murder supported by two theories:
premediated murder and felony murder.

                                            I. FACTS

        This case arises from the shooting and death of the 33-year old victim on December 24,
2015, at approximately 9:30 p.m. The victim had just performed as a musician during a church’s
Christmas Eve service and was driving to his mother’s home for the holiday, with gifts in his car
for his children. Prior to arriving at his mother’s home, the victim picked up his friend from the
friend’s jobsite. On their way, the victim and his friend stopped at the Freemont Market. The
victim parked next to the store while his friend got out and went inside the Market. While the
friend was inside the store, someone ran in and yelled, “they about to rob this bitch.” Within a
few seconds, the friend heard two gunshots, ran outside, and found the victim lying on the
ground. The victim later died of injuries sustained from the gunshot wounds.


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       Surveillance video near the store recorded two men wearing masks exit a gold Chevy
Equinox, with the driver remaining in the vehicle. One of the men was wearing a gray-hooded
sweatshirt with a design on its back, stone washed blue jeans, dark blue gloves, and Nike shoes.
The other man was wearing a darker hooded sweatshirt.1 After dropping off the men, the driver
pulled away, and parked in another location as the two men approached the store. According to
a witness, the two men ran up to the victim with their weapons, and one of them said, “shut the
fuck up[,] give me everything that you got.” Seconds later, the victim was shot three times. The
men fled in the victim’s Trail Blazer, which was later found incinerated in an alley on December
26, 2015.

        When the police released the surveillance video to the public, defendant’s live-in fiancée,
Nika Rogers, contacted the police and identified the man in the gray sweatshirt as defendant.
During defendant’s trial, Rogers testified that defendant contacted her after the incident and
confessed to shooting the victim, taking his vehicle, and stealing the items in the victim’s
vehicle, including a Batman toy the victim bought for his “youngest son,” before setting the car
on fire. She stated that defendant had explained that it was “a robbery [that] went wrong.”

       After the close of the prosecution’s case-in-chief, there was an in-chambers discussion
about defendant’s plan to call Tasha Pritchett to testify and the prosecution’s view that her
testimony would be inadmissible. A brief record about the issue was made after the conference.
Defense counsel advised the court that Pritchett would testify that defendant’s fiancée told her
that she and defendant had a “very volatile relationship, that there was hitting and my client
could essentially go to jail.” The prosecution noted that such testimony would only be
admissible if it was inconsistent with the testimony provided by defendant’s fiancée. The trial
court agreed with the prosecutor, and disallowed the testimony.

                                     II. LEGAL ANALYSIS

                                A. EXCLUSION OF EVIDENCE

       On appeal, defendant argues that the trial court erroneously excluded Pritchett’s
testimony because it would have been used to challenge Rogers’ credibility, and that it was
admissible under MfRE 803(24).2



1
 Codefendant Darnell Young, who was wearing the darker sweatshirt, pleaded guilty to second-
degree murder and felony-firearm, to which he was sentenced to 33 to 60 years’ imprisonment
and two years’ imprisonment, respectively; Young does not have an appeal pending with this
Court.
2
  A challenge to the trial court’s decision whether to admit evidence is reviewed for an abuse of
discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). An abuse of discretion
occurs when the court chooses an outcome that falls outside the range of reasonable and
principled outcomes. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). A trial
court’s decision whether the rules of evidence preclude admission of the evidence is reviewed de
novo. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). Because the rules of


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        Defendant’s argument is somewhat confusing because defendant did not seek to admit
Pritchett’s testimony for substantive purposes. Indeed, it was unlikely that defendant wanted the
jury to consider his treatment of his fiancée as relevant to his guilt or innocence. Since the
purpose of the testimony was impeachment, the hearsay rule did not apply. MRE 607 allows a
party to attack the credibility of any witness by evidence of bias or inconsistent statements.
Thus, the proper question was whether Pritchett’s testimony would have revealed information
showing bias that the jury would otherwise not learn of or if it revealed statements by Rogers
inconsistent with Roger’s testimony.

        The offer of proof regarding Pritchett’s testimony did not provide grounds to conclude
that the trial court abused its discretion by excluding it. The summary of Pritchett’s testimony,
offered by counsel, was quite consistent with Roger’s own testimony, which had already
revealed the possibility of bias. Rogers testified that her relationship with defendant was “very
stormy” and that defendant had hit her. She also testified that she was angry that defendant had
taken her gun.

        As already noted, statements offered for purposes of impeachment only do not need to
satisfy the hearsay rule. However, since the court and parties discussed MRE 803(24) we will
briefly address it. MRE 803(24) is the catch-all exception to the hearsay rule and allows for the
admission of:

               A statement not specifically covered by any of the foregoing exceptions
       [i.e., MRE 803(1)-(23)] but having the equivalent circumstantial guarantees if
       trustworthiness, if the court determines that (A) the statement is offered as
       evidence of a material fact, (B) the statement is more probative on the point for
       which it is offered than any other evidence that the proponent can procure through
       reasonable efforts, and (C) the general purposes of these rules and the interests of
       justice will be served by admission of the statements into evidence. . . .

       The record does not support application of MRE 803(24). “To be admissible under MRE
803(24), a hearsay statement must meet four requirements. People v Katt, 468 Mich 272, 290;
662 NW2d 12 (2003). First, it must “demonstrate circumstantial guarantees of trustworthiness
equivalent to the categorical exceptions.” Id. In this case, the record is void of any meaningful
gauge as to the reliability of Pritchett’s hearsay testimony, as the only information provided
about this witness is through the offer of proof discussed above.

       Second, the statement must “be relevant to a material fact.” Id. We hold that Pritchett’s
proposed testimony is relevant to Roger’s bias. “A witness’s bias is always relevant” and a
“defendant is entitled to have the jury consider any fact that may have influenced the witness’
testimony.” People v McGhee, 268 Mich App 600, 637; 709 NW2d 595 (2005).




evidence are reviewed de novo, if a trial court errs in admitting evidence as a matter of law, it is
an abuse of discretion. People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014).


                                                -3-
        Third, the statement must “be the more probative evidence of the fact reasonably
available.” Katt, 468 Mich at 290. This requirement “is essentially . . . a best evidence
requirement, which is a high bar and will effectively limit use of the residual exception to
exceptional circumstances.” People v Douglas, 496 Mich 557, 577; 852 NW2d 587 (2014)
(quotation marks and citation omitted). Here, the best evidence of Rogers’s bias would be the
testimony from Rogers, herself, which itself demonstrated the possibility of bias no less than the
proffered testimony. “[N]onhearsay evidence on a material fact will nearly always have more
probative value than hearsay statements, because nonhearsay derives from firsthand knowledge.”
Katt, 468 Mich at 293. “Thus, [MRE 803(24)] normally will not be available if there is
nonhearsay evidence on point.” Id.

       Fourth, the statement must “serve the interests of justice by its admission.” Katt, 468
Mich at 290. Defendant failed to demonstrate or argue that the result of the trial would have
been different had Pritchett testified, and there is nothing in the record that would support such a
contention.

       The exclusion of the evidence was well within the trial court’s discretion and so there
was no error.

                  B. CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE

        Defendant, relying on the same record, also asserts that the trial court’s exclusion of
Pritchett’s testimony deprived him of his right to present a defense. We disagree.3

        The Michigan Supreme Court has stated that “[a]lthough the right to present a defense is
a fundamental element of due process, it is not an absolute right. The accused must still comply
with ‘established rules of procedure and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.’ ” People v Hayes, 421 Mich 271, 279; 364 NW2d
635 (1984) (citations omitted). Moreover, “[t]he Michigan Rules of Evidence do not infringe on
a defendant’s constitutional right to present unless they are arbitrary or disproportionate to the
purposes they are designed to serve.” People v King, 297 Mich App 465, 474; 824 NW2d 258
(2012) (quotation marks and citation omitted).

       As stated above, Pritchett’s testimony was not admissible because it was hearsay, and
was not admissible under any of the hearsay exceptions. See MRE 801(c) and MRE 803.
Defendant was still able to present the same evidence through cross-examination of Rogers, so
he was able to present the defense that she was biased.

       Additionally, defendant has failed to show prejudice as there was overwhelming evidence
of his guilt. During a lawful search of defendant’s home, the police seized a Batman toy
consistent with the one in the victim’s car, as well as Nike shoes, gray sweatshirts, stonewashed


3
  Defendant did not raise this issue below and so it is not preserved. Therefore, our review is for
plain error affecting substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130
(1999).


                                                -4-
jeans, and blue gloves, which were items that were noticeable from the surveillance video
admitted into evidence. The Batman toy, which was still in a box, had defendant’s fingerprints
on it. The police also seized a .40 caliber handgun, which was the same type of handgun that
was used to shoot the victim. Rogers testified that she owned a .40 caliber handgun, but had
reported it missing. However, she stated that when she called defendant to ask if he had the
handgun, defendant responded that he owned the gun. In addition, defendant’s cellular telephone
movements were consistent with the codefendant’s telephone movements, which were near the
alley where the victim’s burnt vehicle was found. Given the overwhelming evidence of
defendant’s guilt, even if there had been error, reversal would not be warranted.

                           C. DOUBLE JEOPARDY CHALLENGE

        Finally defendant argues that the trial court erred when it convicted and sentenced him on
first-degree premediated murder and first-degree felony murder. He contends that the
appropriate remedy for the error is to vacate the convictions or to vacate one murder conviction
and sentence, and amend the judgment of sentence accordingly. We agree that the trial court
erred, but disagree that the appropriate remedy is to vacate one of the murder convictions and
sentences.4

        “[T]wo convictions of first-degree premeditated murder and first-degree felony murder
arising out of the death of a single victim violates the constitutional prohibition against double
jeopardy.” People v Long, 246 Mich App 582, 588; 633 NW2d 843 (2001). Defendant was
charged with, and convicted of, first-degree premeditate murder and first-degree felony murder,
which arose out of the death of only one victim. Accordingly, the trial court erred when it
convicted and sentenced defendant on both murder charges.

        In People v Bigelow, 229 Mich App 218, 220-221; 581 NW2d 744 (1998), this Court
held that “the appropriate remedy to protect defendant’s rights against double jeopardy is to
modify defendant’s judgment of conviction and sentence to specify that [the] defendant’s
conviction is for one count and one sentence of first-degree murder supported by two theories:
premeditated murder and felony murder.” Id. The Bigelow Court specifically held that vacating
one of the defendant’s sentences, as defendant requests, was not the proper procedure. Id.




4
 To preserve appellate review of a double jeopardy violation, a defendant must object at the trial
court level. People v Ackah-Essien, 311 Mich App 13, 30; 874 NW2d 172 (2015). Defendant
did not object at the trial that his multiple murder convictions and sentences violated his
protection against double jeopardy. Therefore, this issue is unpreserved. A double jeopardy
challenge presents a question of constitutional law reviewed de novo on appeal. Id. However,
an unpreserved double jeopardy claim is reviewed for plain error affecting the defendant’s
substantial rights, as stated supra. Id.


                                               -5-
       Accordingly, the case is remanded to the trial court for the ministerial task of amending
the judgment of sentence to reflect a single conviction and sentence of first-degree murder
supported by two theories: premediated murder and felony murder. Bigelow, 229 Mich App at
221.

        Affirmed but remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                           /s/ Patrick M. Meter
                                                           /s/ David H. Sawyer
                                                           /s/ Douglas B. Shapiro




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