            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 26, 2019
               Plaintiff-Appellee,

v                                                                   No. 336500
                                                                    Wayne Circuit Court
MARCUS DARNELL FORD,                                                LC No. 16-001443-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions for felony murder, MCL 750.316(b),
torture, MCL 750.85, and unlawful imprisonment, MCL 750.349(b). He was sentenced to life
for the felony murder and torture convictions, and 10 to 15 years’ imprisonment for the unlawful
imprisonment conviction. We affirm.

                                       I. BACKGROUND

         Defendant’s convictions arise from the murder of Ali Beasley, his mother’s boyfriend, in
the early morning hours of January 5, 2015 in Detroit, Michigan. Beasley was discovered by
first responders in a field next to an abandoned home and taken to a hospital at approximately
3:00 a.m. on January 5 where he died there some seven hours later.

                                 II. DYING DECLARATIONS

         Defendant challenges Beasley’s statements to first responders that identified defendant as
his assailant on multiple grounds. In his attorney’s brief, he argues the statements were
inadmissible hearsay that the trial court erred in admitting and that counsel was ineffective for
not moving to suppress. In his Standard 4 brief, defendant argues that the statements were
insufficient evidence of identification to support the district court bind over and were later used
at trial by firefighters Charles Dabrowski and William Belser to commit perjury.




                                                -1-
                                         A. HEARSAY

                                 1. STANDARDS OF REVIEW

        “The decision to admit evidence is within a trial court’s discretion, which is reviewed for
an abuse of that discretion.” People v Bynum, 496 Mich 610, 623; 852 NW2d 570 (2014). “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). “When the decision involves a preliminary question of law however, such as whether a
rule of evidence precludes admission, we review the question de novo.” People v Mardlin, 487
Mich 609, 614; 790 NW2d 607 (2010).

        Defendant raised his ineffective assistance of counsel claim in the trial court by motion
for a new trial and evidentiary hearing and it was denied. This Court further denied defendant’s
motion to remand for an evidentiary hearing. It is our opinion that the record contains sufficient
evidence to rule on defendant’s claim. Proceeding, we review “de novo whether defense
counsel’s acts or omissions fell below an objective standard of reasonableness under prevailing
professional norms and whether, without the error, the result of the proceedings would have been
different.” People v McFarlane, ___ Mich App ___, ___; ___ NW2d ___ (2018).

                                         2. ANALYSIS

       Defendant first argues that Beasley’s statements identifying him to first responders as the
person responsible for his condition were hearsay and their admission denied him a fair trial.
Defendant further argues that the evidence at trial did not demonstrate that Beasley’s statements
were dying declarations because the statements were not made with the belief that death was
imminent, were in response to questions from law enforcement, and Beasley actually did not
pass until seven hours later. We disagree.

        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.” MRE 801(c).
“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); MRE 802.
The rule at issue here is MRE 804(b)(2), commonly known as the dying declaration exception.
The rule provides that in a prosecution for homicide, “a statement by a declarant is admissible if
the declarant is unavailable as a witness and the statement was made ‘while believing that the
declarant’s death was imminent, concerning the cause or circumstances of what the declarant
believed to be impending death.’ ” People v Stamper, 480 Mich 1, 4; 742 NW2d 607 (2007)
quoting MRE 804(b)(2). “[I]t is not necessary for the declarant to have actually stated that he
knew he was dying in order for the statement to be admissible as a dying declaration.” People v
Siler, 171 Mich App 246, 251; 429 NW2d 865 (1988). The court may consider “ ‘the
circumstances under which the dying declaration was taken to show whether it was really taken
when the declarant was under the conviction of approaching and inevitable death....’ ” People v
Fritch, 210 Mich 343, 347; 178 NW 59 (1920) quoting People v Christmas, 181 Mich 634, 646;
148 NW 369 (1914). “If the surrounding circumstances clearly establish that the declarant was
in extremis and believed that his death was impending, the court may admit statements


                                                -2-
concerning the cause or circumstances of the declarant’s impending death as substantive
evidence under MRE 804(b)(2).” Stamper, 480 Mich at 4.

         Testimony from first responders clearly established that Beasley was in extremis at the
time he provided statements identifying the defendant as his assailant. They testified that
Beasley was found kneeling in an open field. His feet and hands were bound with copper wire
and he looked as if he had been beaten. He had multiple injuries to his face. Blood was pooling
at his jaw. He had been stabbed and had brain matter coming out of his ears. He collapsed when
firefighters arrived. Officer Abery Thomas testified that after stating his name, Beasley just
began to tell what happened to him. Officer Thomas testified, “He told me that he was set up.
And I asked him how he was set up. And he told me Marcus Ford set him up. That’s who did
this to him. I also asked him how was he – how did he know Marcus Ford. And he said that he
was dating his mother, Marcus Ford’s mother.” Officer Belser testified that Beasley told him
that the person who did this to him was in an SUV, his name was Marcus Ford, and Marcus Ford
was “his girlfriend’s son.” Sgt. Dabrowski testified that he heard Beasley say, “Marcus Ford did
this to me” and spell out Marcus Ford’s name. Officer Thomas followed up with pointed
questions and learned that Marcus Ford was a thirty-year-old black male, drove an SUV,
assaulted Beasley because he thought Beasley assaulted his mother, had put Beasley in the back
of a trunk, and brought him to the field.

        The declarant is not required to state that he believes he is going to die. Siler, 171 Mich
App at 251. Taken together, Beasley’s physical condition and statements to law enforcement
demonstrated that he was under the conviction of approaching death. Beasley’s urgency and
mission to identify defendant came out in his spontaneous narrative to Officer Thomas of who
assaulted him and how it happened. Above all else, Beasley wanted law enforcement to know
his assailant’s name. Beasley did die some seven hours after making the dying declarations
however, defendant presents no case law supporting that this passage of time diminishes the
declarant’s belief that death was imminent. The court’s decision to admit the statements was
within the range of principled outcomes.

        Defendant also faults his trial counsel for failing to file a pre-trial motion to suppress the
same statements from Beasley. “To prevail on a claim of ineffective assistance, a defendant
must, at a minimum, show that (1) counsel’s performance was below an objective standard of
reasonableness and (2) a reasonable probability [exists] that the outcome of the proceeding
would have been different but for trial counsel’s errors.” People v Ackerman, 257 Mich App
434, 455; 669 NW2d 818 (2003). At defendant’s January 23, 2015 preliminary examination,
defense counsel made the hearsay objection during Officer Thomas’s testimony that Beasley’s
statements were not made under the impression of impending death. The court disagreed, and
held, “[t]hat he had blood pooling in his mouth; his skin is coming through his clothes; his hands
are bound, his body smoldering. He’s got blood everywhere. I’m satisfied. Your objection is
overruled.” Nevertheless, counsel continued to object at trial. He was unsuccessful there as
well. Since counsel lodged his objections to the admissible hearsay at both the preliminary
examination and at trial, he was not obligated to, also, make a futile attempt to suppress via
motion. This Court will not find counsel “ineffective for failing to advance a meritless position
or make a futile motion.” People v Henry (After Remand), 305 Mich App 127, 141; 854 NW2d
114 (2014).


                                                 -3-
              B. INSUFFICIENT EVIDENCE TO SUPPORT THE BIND OVER

       Defendant additionally challenges Beasley’s statements to first responders as insufficient
evidence of defendant’s identity to support his bind over.

                                  1. STANDARD OF REVIEW

      We review for an abuse of discretion the district court’s decision to bind over. People v
Whipple, 202 Mich App 428, 431; 509 NW2d 837 (1993). “An abuse of discretion occurs when
the court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” Unger, 278 Mich App at 217.

                                          2. ANALYSIS

         “The district court must bind over a defendant if the evidence presented at the
preliminary examination establishes that a felony has been committed and there is probable
cause to believe that the defendant committed the crime.” Whipple, 202 Mich App at 431.
Probable cause is a “reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the
offense with which he is charged.” People v Dellabonda, 265 Mich 486, 490; 251 NW 594
(1933). “At the preliminary examination, the prosecutor is not required to prove each element
beyond a reasonable doubt. However, there must be some evidence from which these elements
can be inferred.” People v Woods, 200 Mich App 283, 287-288; 504 NW2d 24 (1993).
Magistrates should “not refuse to bind a defendant over for trial when the evidence conflicts or
raises reasonable doubt of the defendant's guilt.” People v Yost, 468 Mich 122, 128; 659 NW2d
604 (2003). In the case of conflicting evidence, “[t]he jury is the sole judge of the facts; its role
includes listening to testimony, weighing evidence, and making credibility determinations.”
Mardlin, 487 Mich at 626.

         Defendant was bound over on four counts: 1) first-degree murder, 2) felony murder, 3)
torture, and 4) unlawful imprisonment.1 “The elements of first-degree murder are (1) the
intentional killing of a human (2) with premeditation and deliberation.” People v Bennett, 290
Mich App 465, 472; 802 NW2d 627 (2010); MCL 750.316. “Premeditation and deliberation
require sufficient time to allow the defendant to take a second look.” People v Anderson, 209
Mich App 527, 537; 531 NW2d 780 (1995); MCL 750.316(1)(a). “The elements of felony
murder are: (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
or to create a very high risk of death or great bodily harm with knowledge that death or great
bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in
the commission of any of the felonies specifically enumerated in M.C.L. § 750.316[.]” People v
Turner, 213 Mich App 558, 566; 540 NW2d 728 (1995); MCL 750.316(1)(b). The elements of
torture are: (1) the intent to cause cruel or extreme physical or mental pain and suffering; (2) the
infliction of great bodily injury or severe mental pain or suffering upon another person; and (3)


1
 Defendant was also bound over on one count conspiracy to commit murder, but that charge was
dismissed at trial.


                                                -4-
the victim is within the actor’s custody or physical control. MCL 750.85. “A person commits
the crime of unlawful imprisonment if he or she knowingly restrains another person under any of
the following circumstances: (a) The person is restrained by means of a weapon or dangerous
instrument[;] (b) The restrained person was secretly confined[;] [and] (c) The person was
restrained to facilitate the commission of another felony or to facilitate flight after commission of
another felony.” People v Bosca, 310 Mich App 1, 18; 871 NW2d 307 (2015); MCL 750.349b.
Torture and unlawful imprisonment are enumerated felonies under MCL 750.316(1)(b). “[I]t is
well settled that identity is an element of every offense.” People v Yost, 278 Mich App 341, 356;
749 NW2d 753 (2008).

        Defendant contends that Officer Thomas’s preliminary examination testimony regarding
Beasley’s identification of defendant was inadmissible because Officer Thomas testified from a
“deficient memory” without first having reviewed his report and the statement he recorded in his
report did not positively identify defendant as the one who killed Beasley. The record does not
support that Officer Thomas’s memory failed him. Not once did Officer Thomas testify that he
could not remember what Beasley said to him. Officer Thomas simply offered his report and the
prosecutor asked that he testify from his memory. Officer Thomas testified that he recalled
exactly what Beasley said and then proceeded to testify from memory about his conversation
with Beasley. Defendant also argues that Beasley’s recorded statement in Officer Thomas’s
report that “I was set up by Marcus Ford B/M 30” was not a positive statement that identified
defendant as Beasley’s killer because Beasley used the words “set up” which left open the
possibility that another individual actually assaulted Beasley. Defendant’s contention flows from
a misunderstanding of the felony-murder rule, that when a person “sets in motion a chain of
events which were or should have been within his contemplation when the motion was initiated,
he should be held responsible for any death which by direct and almost inevitable sequence
results from the initial criminal act.” People v Podolski, 332 Mich 508, 515-516; 52 NW2d 201
(1952). “[W]e have never held that a defendant must participate in the actual killing to be guilty
of felony murder.” People v Smith, 56 Mich App 560, 567; 224 NW2d 676 (1974). Defendant’s
argument also lacks merit because it ignores the remainder of Officer Thomas’s testimony that
offered additional positive identification testimony of defendant as having assaulted Beasley.
Officer Thomas also testified that Beasley said, “Marcus Ford did this,” that Patrick told
defendant that Beasley “beat her up” to which Beasley said, “I didn’t do that,” and that “they
made me get in the trunk.” Beasley otherwise identified defendant as the one who “did this,” i.e.
the one who was responsible for his then-current condition, he linked the motive of his assault to
defendant, and identified defendant as someone involved in his asportation.

        Further omitted from defendant’s analysis is the fact that the district court’s bind over
decision was not based on Officer Thomas’s testimony alone, but also upon consideration of the
testimonies of Officer Anthony Byrd, Sgt. Todd Eby and defendant’s co-defendant Earnest
Jackson, Jr. on all four counts charged. Officer Byrd testified that Beasley “was on the ground;
he was bloody; burned real bad; still smoldering; still smoking.” Officer Byrd testified that he
observed Beasley in a field with his hands tied behind his back. This evidence showed Beasley
was under extreme physical suffering and restrained in a desolate location. Sgt. Eby testified
that during his interview of defendant, defendant said he left his sister’s house with Beasley and
Jackson. Jackson testified that on January 8, 2015, he gave a sworn statement to officers
wherein he stated that defendant confided in him; telling Jackson that he wrapped Beasley in
plastic, beat Beasley, killed Beasley, and left Beasley’s body not far away from his/defendant’s

                                                -5-
home. Jackson also testified that he had lied to officers about defendant’s involvement and
testified that the truth was that he and defendant left Beasley at a party store after learning that
Beasley had a gun, because Jackson was on parole and then he dropped defendant off at their
cousin’s Jeremy’s house and went home. The autopsy report that determined Beasley’s death
was a homicide was also admitted. Jackson’s conflicting testimony was not a reason for the
court to refuse to bind over defendant. Yost, 468 Mich at 128. These statements placed
defendant with Beasley on the night of the assault. The court’s decision to bind over defendant
was not an abuse of discretion where the evidence was sufficient to establish the commission of a
felony and probable cause that defendant committed the crimes charged.

         Defendant also takes issue with the district court’s procedure for finding that Beasley’s
statements were dying declarations before hearing the statements themselves. The procedure
followed by the trial court allowed it to make the determination that the victim was in fear of
death before determining which, if any, of the statements made were properly admissible
declarations of a person fearing impending death. See Stamper, 480 Mich at 4. Defendant also
argues that the court erred in not considering the issues of confrontation and indicia of reliability
of Beasley’s statements before admitting them as dying declarations. Dying declarations do not
pose a confrontation issue, however. “[U]nder Crawford2, dying declarations are admissible as
an historical exception to the Confrontation Clause.” People v Taylor, 275 Mich App 177, 183;
737 NW2d 790 (2007). Further, “a hearsay statement is deemed to possess an indicia of
reliability when made under specific circumstances that make it more probable than not that the
substance of the statement is true.” People v Malone, 445 Mich 369, 402 n 12; 518 NW2d 418
(1994). “[T]he ‘dying declaration’ ... exception[ ] to the hearsay rule [is] based on the belief that
persons making such statements are highly unlikely to lie.” People v Watkins, 438 Mich 627,
637; 475 NW2d 727 (1991) (citation omitted). The “statement derives from the permeating
influence of the situation in which the declarant finds himself as he utters the statement, and
from his general mental condition thereby created, and that any associated statements made
around the same time and under the same circumstances can be presumed to absorb and share
that trustworthiness.” Id. The trustworthiness of the dying declaration is therefore, presumed.
Id.

                                           C. PERJURY

        Defendant also claims that firefighters Dabrowski and Belser committed perjury when
they each testified that Beasley spelled out defendant’s name and Officer Byrd’s report indicated
Beasley spelled out his own name, not the defendant’s. Defendant argues that the prosecutor
committed misconduct by allowing the perjured testimony. “The test of prosecutorial
misconduct is whether the defendant was denied a fair and impartial trial.” People v Rice, 235
Mich App 429, 434; 597 NW2d 843 (1999). A prosecutor has “a constitutional obligation to
report to the defendant and to the trial court whenever government witnesses lie under oath.”
People v Lester, 232 Mich App 262, 276; 591 NW2d 267 (1998). “Michigan courts have also
recognized that the prosecutor may not knowingly use false testimony to obtain a conviction, and



2
    Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004).


                                                -6-
that a prosecutor has a duty to correct false evidence.” Id. (Citations omitted). “It is well settled
that a conviction obtained through the knowing use of perjured testimony offends a defendant’s
due process protections guaranteed under the Fourteenth Amendment.” People v Aceval, 282
Mich App 379, 389; 764 NW2d 285 (2009).

       In this case, however, there is no evidence of perjury. The defendant argues basically
that an individual in Beasley’s condition could not have spelled out a name and that Officer
Byrd’s failure to report him doing so rendered the identification incredible. According to Officer
Byrd’s preliminary examination testimony, he was with Beasley for a short time, just to obtain
Beasley’s name, date of birth and address, but then returned to his patrol car to look up Beasley
in the Law Enforcement Information Network (LIEN), and stayed in his patrol car until EMS
took Beasley away. Officer Byrd did not testify to being present for Beasley’s conversations
with other first responders. Defendant was not denied a fair trial in the absence of Officer Byrd’s
testimony because his testimony would not have precluded, undermined or proved false what
Dabrowski and Belser heard during their interviews of Beasley.

                                 III. JACKSON’S TESTIMONY

       Defendant challenges the trial court’s admission of Jackson’s testimony after Jackson
was found an incredible witness in the district court.

                                  A. ISSUE PRESERVATION

       “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). This issue is not preserved because
defendant did not object to Jackson testifying at trial.

                                  B. STANDARD OF REVIEW

        “The decision to admit evidence is within a trial court’s discretion, which is reviewed for
an abuse of that discretion.” Bynum, 496 Mich at 623. “An abuse of discretion occurs when the
court chooses an outcome that falls outside the range of reasonable and principled outcomes.”
Unger, 278 Mich App at 217. We review an unpreserved evidentiary challenge for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999).
“When the decision involves a preliminary question of law however, such as whether a rule of
evidence precludes admission, we review the question de novo.” Mardlin, 487 Mich at 614.

                                          C. ANALYSIS

       In a January 8, 2015 sworn statement, Jackson told officers that defendant told him “I
wrapped that nigger in plastic and beat the shit out of him and he ain’t too far away from here.”
At the February 2017 continued preliminary examination, Jackson appeared as a witness for the
defense and testified that his prior statements to law enforcement regarding defendant’s
involvement were lies. At the end of the preliminary examination, the district court stated that it
reasonably believed that Jackson had committed perjury and appointed him counsel. Thereafter,
Jackson was offered a plea deal and at trial, testified for the prosecution.


                                                 -7-
        Certainly, Jackson’s testimony was inconsistent. Defendant’s argument about this
testimony however, goes to the weight of the evidence, not its admissibility. People v Hintz, 62
Mich App 196, 203; 233 NW2d 228 (1975). While the district court made the determination that
Jackson should be charged with perjury, “[w]itness credibility and the weight accorded to
evidence is a question for the [trier of fact][.]” People v McGhee, 268 Mich App 600, 624; 709
NW2d 595 (2005). The admission of Jackson’s testimony also did not affect defendant’s
substantial rights where defendant used Jackson’s inconsistent testimony to impeach his
credibility before the jury.

                            IV. CELLULAR PHONE EVIDENCE

     Defendant challenges the admission of text messages from his phone on Fourth
Amendment grounds, ineffective assistance of counsel, hearsay and perjury.

                         A. FAILURE TO CONTEST THE SEIZURE

        Defendant first contends counsel was ineffective for not filing a motion to suppress
information obtained from defendant’s cellular phone because the phone was seized and
searched without a warrant and the information obtained from the phone was therefore fruit of
the poisonous tree.

                                 1. STANDARD OF REVIEW

         “To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” Ackerman, 257 Mich App at 455.

                                        2. ANALYSIS

        The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures....” US Const, Am IV.
The protection against unreasonable searches and seizures applies to the investigatory and
accusatory stage. Davis v Mississippi, 394 US 721, 726; 89 S Ct 1394; 22 L Ed 2d 676 (1969).
“The burden of asserting and proving facts constituting an illegal search and seizure is upon the
defendant moving to suppress the evidence, and where such burden is not sustained, the motion
should be denied.” People v Bradley, 4 Mich App 660, 664-665; 145 NW2d 390 (1966) (citation
omitted). “The ‘fruit of the poisonous tree’ doctrine developed as a means of effectuating fourth
amendment guarantees by excluding evidence obtained derivatively as well as that obtained
directly through an illegal search or seizure.” People v Robinson, 48 Mich App 253, 256; 210
NW2d 372 (1973) (citation omitted). The “doctrine seeks to discourage unlawful police
practices by depriving the people of advantage flowing from the ‘primary illegality.’ ” People v
Walker, 27 Mich App 609, 616; 183 NW2d 871 (1970). Therefore, the fruit of the poisonous
tree doctrine “presupposes an illegal act.” People v Gunn, 48 Mich App 772, 778; 211 NW2d 84
(1973). The fruit of the poisonous tree is inapplicable here because defendant’s phone was
seized incident to a lawful arrest and the phone’s contents were searched pursuant to a search
warrant.


                                               -8-
        Sgt. Eby testified that defendant’s cellular phone was on his person when he was arrested
on January 7 and that it was seized without a warrant. “[T]he validity of a warrantless search
and seizure incident to an arrest stands or falls with the validity of the arrest.” People v Wenrich,
31 Mich App 644, 647; 188 NW2d 102 (1971). “A police officer in Michigan may arrest a
person when he has reasonable cause to believe that a felony has been committed and reasonable
cause to believe that such person has committed it.” Id. “When the constitutional validity of an
arrest is challenged, the court must determine whether the facts available to the officers at the
moment of the arrest would warrant a man of reasonable caution in believing that an offense had
been committed.” Id. At the time of defendant’s arrest, officers had reasonable cause to believe
that a felony had been committed and that defendant was the one who committed it. Officers
originally found Beasley covered in blood, still smoldering from having been set on fire, bound
at the hands and feet, and in a field next to a vacant home. At the time of defendant’s arrest,
Beasley was dead and had identified defendant by name as the one who assaulted him,
transported him in a trunk to an abandoned area and set him on fire because defendant thought
Beasley had assaulted defendant’s mother. Armed with this information, officers had reasonable
cause to arrest defendant when he voluntarily appeared at the police station on January 7, 2015.
The warrantless seizure of defendant’s telephone was therefore incident to the lawful arrest.
Wenrich, 31 Mich App at 647.

        Sgt. Eby further testified that Sergeant Firchau obtained a search warrant on January 8 for
the contents of defendant’s cellular phone and that defendant’s phone was not searched until the
warrant was obtained. The record contains the warrant and there is no evidence that any search
of the telephone preceded the issuance of the warrant. Therefore, counsel did not have a basis
for a pre-trial suppression motion. This Court will not find counsel “ineffective for failing to
advance a meritless position or make a futile motion.” Henry, 305 Mich App at 141.

                                          B. HEARSAY

       In his Standard 4 brief, defendant argues that after the prosecutor dismissed the
conspiracy to commit murder charge, Patrick’s text messages to defendant returned to being
hearsay for which there was no exception. We disagree.

        At defendant’s January 23, 2015 preliminary examination, defendant objected to the
prosecutor’s attempt to introduce Patrick’s text messages to defendant on hearsay grounds and
the district court sustained the objection. At defendant’s February 10, 2016 preliminary
examination on the added charge of conspiracy to commit homicide, defendant again objected to
the admission of Patrick’s text messages on hearsay grounds when the prosecutor sought their
admission as a preliminary matter. There, the prosecutor offered the text messages for two
purposes: 1) under MRE 803(3) to show defendant’s state of mind, specifically that Patrick’s
messages motivated defendant to kill Beasley, and 2) as substantive evidence of a co-conspirator
exception where Patrick directed defendant to assault Beasley and the text messages were
statements in furtherance of the conspiracy. The court found the text messages admissible for
both offered purposes. Once the conspiracy basis for admission was eliminated due to the
dismissal of the charge, the “effect on the receiver” basis remained and we find it valid.
“‘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.” MRE 801(c). “An out-of-
court statement introduced to show its effect on a listener, as opposed to proving the truth of the

                                                -9-
matter asserted, does not constitute hearsay under MRE 801(c).” People v Gaines, 306 Mich
App 289, 306-307; 856 NW2d 222 (2014). These statements are “not offered for a hearsay
purpose because [their] value does not depend upon the truth of the statement.” People v Lee,
391 Mich 618, 642; 218 NW2d 655 (1974).

        The forensic extraction of defendant’s text messages showed that defendant received text
messages on January 4, 2015, beginning at 11:18 p.m. from someone he named “mom” in his
phone that read, “I want him gone, but have to pick a better time, he has weapons, don’t say
anything,” “please play nice for me,” and “if he knows he would hurt me or worst [sic] to me, he
threatened me and everyone I love.” At the same time these messages were received, by
defendant’s account, he went to where Patrick and Beasley were and left with Beasley and
Jackson. By Jackson’s account, defendant thereafter assaulted Beasley. An hour and half after
the last text message, Beasley was found burned and tied up on Liberal Street. In arguing that
the text messages had an effect on defendant, the prosecutor did not seek to prove that the text
messages were from Patrick or the veracity of the text contents. Rather, the messages were
relevant to show that around the same time that they were being sent to defendant, defendant
took certain actions in response. The court did not abuse its discretion in finding the text
messages were not hearsay and in admitting the messages for the limited purpose of showing
their effect on the listener.

                                        C. PERJURY

       Defendant also argues that Sgt. Eby and Detective Rutledge testified falsely regarding
defendant’s arrest and, the search and seizure of defendant’s cellular phone, and that the
prosecutor committed misconduct by allowing this perjured testimony to stand. Again, we
disagree.

       Defendant’s perjury argument conflates admissibility of evidence with evidentiary
weight. The trier of fact heard testimony from Sgt. Eby and Detective Rutledge giving one
version of events. The record also contains video of the interrogation and the search warrant
obtained on January 8. The defendant provided another version of events in his brief without
any support from the record. He further declined to testify to his version of events.

                                   V. FLIGHT EVIDENCE

        Defendant challenges the evidence of flight introduced at trial and the flight jury
instruction being given on grounds of prosecutorial misconduct and ineffective assistance of
counsel.

        The defendant is entitled to a properly instructed jury. People v Dupree, 486 Mich 693,
712; 788 NW2d 399 (2010) (citation omitted). “Jury instructions must therefore include all the
elements of the charged offenses and any material issues, defenses, and theories that are
supported by the evidence.” People v Fennell, 260 Mich App 261, 265; 677 NW2d 66 (2004).
Defendant is also entitled to the effective assistance of counsel. To prove his claim, defendant
must show (1) counsel’s performance was below an objective standard of reasonableness and (2)
but for counsel’s errors, the outcome of the proceeding would have been different. Ackerman,
257 Mich App at 455. We review prosecutorial misconduct claims to see if the defendant was

                                             -10-
denied a fair and impartial trial. Rice, 235 Mich App at 434. Evidence of flight “is probative
because it may indicate consciousness of guilt, although evidence of flight by itself is insufficient
to sustain a conviction.” People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995). “The
term ‘flight’ has been applied to such actions as fleeing the scene of the crime, leaving the
jurisdiction, running from the police, resisting arrest, and attempting to escape custody.” Id.
(Citation omitted). In this case, the jury was instructed:

       There’s been evidence the Defendant tried to run away or hide after the alleged
       crime. This evidence does not prove guilt. A person may run or hide for innocent
       reasons such as panic, mistake or fear; however, a person may also run or hide
       because of a consciousness of guilt. You must decide whether the evidence is
       true and if true, whether it shows the Defendant had a guilty state of mind.

Contrary to defendant’s position, there was direct and circumstantial evidence that defendant hid
after the alleged crimes. The events that led to Beasley’s death began on the night of January 4,
leading into the early morning hours of January 5, 2015. Jackson testified that after the incident
with Beasley, defendant went into hiding because he knew the police were looking for him.
There was evidence that the police unsuccessfully tried to interview defendant at his home. Sgt.
Eby testified that defendant voluntarily came to the police station on January 7, 2015, two days
after the murder and after the police visit. Since there was direct and circumstantial evidence
that the defendant was hiding, counsel cannot be faulted for failing to make another futile
argument.

       Defendant also contends that the prosecutor engaged in misconduct by falsely presenting
evidence that defendant fled and was in hiding. Defendant’s support that evidence that he was
hiding was false is only that it came from Jackson, who defendant argues was an incredible
witness. The jury however was well-equipped to determine the veracity of Jackson’s testimony.
McGhee, 268 Mich App at 624.

        Defendant buttresses his prosecutorial misconduct argument regarding flight testimony
by noting that he had contact with Sgt. Steven Ford, who was his cousin and a member of the
homicide unit of the Detroit Police Department, between the incident and turning himself in, and
that the prosecutor falsely argued in opening statement that Sgt. Ford had no investigative duties
in defendant’s case in an effort to corroborate Jackson’s testimony. He fails to acknowledge the
testimony of Sgt. Eby that Detective Ford, who routinely would have handled this type of case,
was not allowed any investigative duties on this case, and was excluded from the investigation
for the reason that he was defendant’s relative. Thus, there is no proof that the prosecutor
knowingly made a false statement.

        VI. ADDITIONAL CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues counsel was ineffective for failing to present the following
favorable evidence: 1) impeachment of the first responders’ testimony with their written reports,
2) a lighter recovered from the scene that did not contain defendant’s DNA, 3) the medical
examiner’s toxicology report that showed drugs and alcohol in Beasley’s blood, 4) defendant’s
own testimony where he argues he was persuaded by counsel not to testify, and 5) Facebook
social media evidence that suggested an alibi defense.

                                                -11-
        To prove his claims of ineffective assistance of counsel, defendant must show (1)
counsel’s performance was below an objective standard of reasonableness and (2) but for
counsel’s errors, the outcome of the proceeding would have been different. Ackerman, 257 Mich
App at 455. “Decisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76;
601 NW2d 887 (1999). “[T]he failure to call witnesses only constitutes ineffective assistance of
counsel if it deprives the defendant of a substantial defense.” People v Dixon, 263 Mich App
393, 398; 688 NW2d 308 (2004). “Counsel always retains the duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012) (citation and
quotation marks omitted). “Trial counsel is responsible for preparing, investigating, and
presenting all substantial defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68
(2009). “A substantial defense is one that might have made a difference in the outcome of the
trial.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).

         Defendant argues that counsel was ineffective for failing to impeach the testimony from
first responders Dabrowski, Belser, and Thomas with their written reports. This assertion has no
merit. Defense counsel did address the omissions and inconsistencies between and among the
reports in the context of his theory of defense. The defense trial theory was that Jackson and
Cory were the ones who killed Beasley. In advancing this theory, trial counsel challenged the
identification testimony from the above first responders on the basis that what they testified to
was not contained in their reports and in closing statement argued that these witnesses made up
their testimony along the way to conform to the prosecutor’s theory of the case.

        Defendant also argues counsel was ineffective for failing to raise the issue that a lighter
found at the scene did not have defendant’s DNA on it. In his affidavit, defendant suggests that
the lighter was circumstantial evidence that he was not at the scene of the crime and that an
unknown third person may have been present and responsible for the crimes against Beasley.
This argument is also without merit. The presence of the lighter and the issue of there being no
DNA was addressed through witness testimony and argued by defense counsel in closing. Chief
Patrick McNulty testified that he found two plastic lighters and a metal lighter with a “finger
signature.” Sgt. Griffin testified that of the 48 items collected in connection with this case, and
the buccal swabs from defendant, Jackson and Earl, no DNA was found nor conclusion reached
to connect those individuals to the items collected. Defense counsel highlighted this testimony
and made the connection between it and the prosecutor’s failure to test items found at the scene
with DNA from Jackson or Cory.

        Defendant further argues that counsel was ineffective for not addressing Beasley’s
toxicology report which defendant argues would have shown a level of intoxication. Decisions
as to what questions to ask and what evidence to present are presumed to be matters of trial
strategy. Rockey, 237 Mich App at 76. We find that defense counsel’s decision not to ask any
questions of the medical examiner was a matter of trial strategy. It is true that the record
supports the fact that Beasley consumed alcohol on the night of his death. However, even if
there was a basis for an inference that Beasley was intoxicated, it was reasonable for defense
counsel to forgo questioning on that issue. Dr. Kesha testified to the extent of Beasley’s burns,
that he was stabbed, and that the manner of his death was murder. The prosecutor, also, admitted
the autopsy report along with photographs of Beasley. Questioning on the toxicology report

                                               -12-
would have led to re-direct as to the effect the injuries may have had on the lab results. Given
the gruesome pictures and testimony, it was not unreasonable for defense counsel to limit further
questioning on the victim’s physical state.

         Defendant also avers that counsel persuaded him not to testify in his own defense and
refused to allow his father to testify in his defense. In his affidavit, defendant asserted that
counsel told him he did not need to testify because defendant’s statement was already entered
into evidence and counsel was going to corroborate it with statements defendant made to the
police and text messages from defendant’s wife. Defendant’s claim that he was denied the right
to testify is unsupported in the record. At the end of the prosecutor’s case-in-chief, defendant
was questioned on the record about whether he would testify in his own defense. At that time,
defendant agreed on the record that after speaking extensively with defense counsel about the
pros and cons of testifying, it was his decision alone not to testify in his case. Further, in his
affidavit, defendant admits conversation with his counsel about the wisdom of his taking the
witness stand in light of the trial strategy. Defendant’s argument instead appears to be a claim
that the strategy he and defense counsel discussed involving his decision not to testify did not
work out as planned. The fact that counsel’s strategy failed does not constitute ineffective
assistance of counsel. People v Kevorkian, 248 Mich App 373, 415; 639 NW2d 291 (2001).
Defendant also argues that counsel was ineffective for failing to call his father as a witness.
Defendant does not provide an offer of proof as to what testimony his father would have
provided. His claim of ineffective assistance based on counsel’s failure to call the father as a
witness is therefore speculative. Further, the decision of which witnesses to call is presumed to
be a matter of trial strategy which this Court will not second-guess. Rockey, 237 Mich App at
76.

         Defendant additionally argues that counsel was ineffective for not presenting evidence
from defendant’s Facebook social media page that he argues would have shown he was logged in
at the time of the offense and possibly told his location. Defendant asserts that this evidence
suggested an alibi. However, as noted above, defendant waived his right to testify, and thus the
ability to introduce this evidence.

        Defendant also argues that trial counsel failed to communicate with him and keep him
updated on the progress of his case. However, at a November 7, 2016 hearing, just three days
before the beginning of defendant’s trial, where defendant rejected the plea offer on the record,
defendant answered “Yes” when defense counsel asked, “And you and I have talked about the
details of your case on several occasions; is that correct, Mr. Ford?” In this case, there was a
clear strategy followed throughout defendant’s case from the questioning of witnesses to the
final argument to illustrate that defendant was not responsible for Beasley’s murder. This
argument is not persuasive.

            VII. ADDITIONAL CLAIMS OF PROSECUTORIAL MISCONDUCT

        “In order to preserve a claim of prosecutorial misconduct for appellate review, a
defendant must have timely and specifically objected below, unless objection could not have
cured the error.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). The record
does not show that any of the claimed instances of prosecutorial misconduct were objected to at
trial and they are therefore, unpreserved. We review for plain error affecting defendant’s

                                              -13-
substantial rights unpreserved claims of prosecutorial misconduct. People v Cox, 268 Mich App
440, 451; 709 NW2d 152 (2005). “The test of prosecutorial misconduct is whether the defendant
was denied a fair and impartial trial.” Rice, 235 Mich App at 434. Defendant bears the burden
of showing he was prejudiced by the prosecutorial misconduct. Carines, 460 Mich at 763.
Issues of misconduct are decided on a case-by-case basis. Brown, 294 Mich App at 382-383.

         Defendant first argues that it was misconduct for the prosecutor to “tamper” with Sgt.
Eby’s testimony by making gestures during his testimony. The gestures were not captured by the
record and despite defendant’s claim that the prosecutor “can be seen,” no video of this portion
of the trial was provided to this Court. Neither does defendant reference where in the trial
transcript these gestures occurred. Nevertheless, defendant’s own description of the events
demonstrates that the prosecutor’s conduct did not deny him a fair trial. Defendant argues two
instances involving gesturing. In the first instance, defendant argues the prosecutor shook her
head and mouthed “no, no, no” when Sgt. Eby began to testify in contradiction to prior
testimony. Defendant does not argue that the prosecutor’s gestures caused Sgt. Eby to change
his line of testimony and inconsistent testimony from a prosecution witness undoubtedly helped
defendant. In the second instance, defendant argues the prosecutor was “moving one hand over
the other and pulling them apart repeatedly gesturing” for Sgt. Eby to stop. This instance, like
the first, illustrates a favorable situation for defendant where Sgt. Eby must have been providing
testimony helpful to the defense. Defendant’s description that the prosecutor “repeatedly”
gestured for Sgt. Eby to stop also implies Sgt. Eby was unmoved by the prosecutor’s gestures.
Again, defendant does not argue that the prosecutor’s gesturing was effective in denying him any
particular testimony and there is no showing that the conduct denied him a fair trial.

        Defendant next claims that the prosecution tampered with witness Stan Brue’s trial
testimony. He contends Brue altered his preliminary examination testimony at the behest of the
prosecutor and law enforcement in order to make his testimony support Jackson’s testimony and
the prosecutor’s case theory. “ ‘It is a general rule that the intentional spoliation or destruction
of evidence raises the presumption against the spoliator where the evidence was relevant to the
case or where it was his duty to preserve it, since his conduct may properly be attributed to his
supposed knowledge that the truth would operate against him.’ ” Trupiano v Cully, 349 Mich
568, 570; 84 NW2d 747 (1957) quoting 20 Am Jur, Evidence, § 185, p 191. “ ‘Such a
presumption can be applied only where there was intentional conduct indicating fraud and a
desire to destroy and thereby suppress the truth.’ ” Id. “The test of prosecutorial misconduct is
whether the defendant was denied a fair and impartial trial.” Rice, 235 Mich App at 434. The
basis of defendant’s spoliation claim is dependent on a comparison of Brue’s testimony from
Jackson’s March 21, 2016 preliminary examination with Brue’s testimony from defendant’s trial
on November 16, 2016. Defendant attached the exhibits he argues Brue relied on, but did not
attach the preliminary examination testimony interpreting the exhibits. Defendant’s failure to
provide this Court with the preliminary examination transcript “makes review of the factual
issues impossible” because the claimed error lies in the testimony. People v Tyler, 100 Mich
App 782, 788; 300 NW2d 411 (1980). Therefore, defendant has failed to provide this Court with
evidence that Brue or the prosecution intentionally altered evidence.

       Defendant additionally argues that the prosecutor engaged in misconduct by suppressing
lab reports that showed a lighter was recovered from the crime scene not containing either
defendant’s or Beasley’s DNA. Defendant is incorrect in this assertion. The lab reports were

                                               -14-
introduced into evidence through Sgt. Griffin. Defendant further argues that the prosecutor
elicited false testimony from Sgt. Griffin that none of the items collected at the scene were
fruitful for DNA and then improperly argued that there was no DNA at the scene. Defendant
takes this evidence out of context. Logically, the prosecutor was only concerned with whether
defendant’s DNA was present at the crime scene. In this respect, because none of the items
collected contained defendant’s DNA, the lab results were not fruitful. It was thus, not false or a
mischaracterization of the evidence for the prosecutor to argue in closing that there was no DNA
at the scene.

        Defendant lastly contends that the prosecutor committed misconduct by improperly
arguing that blood found in a glove retrieved from defendant was either consistent with
defendant having blood on his hands or from injury. “[A] prosecutor may not argue facts not in
evidence or mischaracterize the evidence presented.” People v Watson, 245 Mich App 572, 588;
629 NW2d 411 (2001). However, “[p]rosecutors are free to argue the evidence and any
reasonable inferences arising from the evidence.” Cox, 268 Mich App at 451. Defendant asserts
that the prosecutor’s argument was prejudicial when the lab report did not in fact find that the
DNA was blood, nor was there evidence that defendant’s hands were bleeding. In closing, the
prosecutor argued

       And what’s interesting is that there was a glove that was submitted as evidence
       that was taken from Defendant. And that glove had his blood in it, consistent
       with bloody hands? Consistent with injuries? So there was a glove that was taken
       by the police from Defendant that had his DNA on it.

The lab report reported

       The DNA profile obtained from item NV15-518-1A (Possible bloodstain from
       glove) is consistent with a male contributor. The DNA profile from NV15-518-
       1A (Possible bloodstain from glove) matches the DNA profile from item NV15-
       5184A (Marcus Ford – known buccal).

The prosecutor did not engage in misconduct by arguing that the glove had blood in it. The lab
report’s “Possible bloodstain” conclusion did not rule out the presence of blood and equally
supported the reasonable inference that the DNA could have been blood.

                     VIII. DEFENDANT’S RIGHT TO A SPEEDY TRIAL

                                A. PRESERVATION OF ISSUE

       “In order to properly preserve his right to a speedy trial, a defendant must make a formal
demand on the record that he be brought to trial.” People v Rogers, 35 Mich App 547, 551; 192
NW2d 640 (1971). Defendant admits this issue was not preserved below by motion or objection.
The record shows the same.

                                 B. STANDARD OF REVIEW

       “Whether defendant was denied his right to a speedy trial is an issue of constitutional
law, which we [generally] review de novo.” People v Williams, 475 Mich 245, 250; 716 NW2d

                                               -15-
208 (2006). We review an unpreserved speedy trial issue for plain error affecting the
defendant’s substantial rights. Carines, 460 Mich at 763-764.

                                         C. ANALYSIS

       “Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial.” Williams, 475 Mich at 261. Our Supreme Court adopted
the Barker3 standards for a speedy trial in People v Grimmett, 388 Mich 590, 606; 202 NW2d
278 (1972), overruled on other grounds in People v White, 390 Mich 245; 212 NW2d 222 (1973)
overruled on other grounds in People v Nutt, 469 Mich 565; 677 NW2d 1 (2004). Accordingly,
we consider four factors when evaluating whether a defendant was deprived his right to a speedy
trial:

         (1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of
         the right, and (4) the prejudice to the defendant. Following a delay of eighteen
         months or more, prejudice is presumed, and the burden shifts to the prosecution to
         show that there was no injury. [Williams, 475 Mich at 261-262; (internal citation
         omitted)].

        The first factor is the length of the delay. This factor favors the defendant. “[T]here is no
set number of days between a defendant’s arrest and trial that is determinative of a speedy trial
claim.” People v Waclawski, 286 Mich App 634, 665; 780 NW2d 321 (2009). “If the total
delay, which runs from the date of the defendant's arrest until the time that trial commences, . . .
is under 18 months, then the burden is on the defendant to show that he or she suffered prejudice.
However, if the delay is over 18 months, prejudice is presumed and the burden is on the
prosecution to rebut the presumption.” Id. A “presumptively prejudicial delay triggers an
inquiry into the other factors to be considered in the balancing of the competing interests to
determine whether a defendant has been deprived of the right to a speedy trial.” People v
Wickham, 200 Mich App 106, 109–110; 503 NW2d 701 (1993). Sgt. Eby testified that
defendant was arrested on January 7 or 8, 2015. Trial began November 10, 2016. We calculate
the number of days in between to be 673, which is equal to 1 year, 10 months, and three days, or
22 months. Given that the delay was greater than 18 months, this Court presumes prejudice,
“and the burden shifts to the prosecution to show that there was no injury.” Williams, 475 Mich
at 262 (citation omitted).

        The second Barker factor is the reason for the delay. This factor favors no one. Delays
can be attributable to either the defendant or the prosecutor. “[D]elays inherent in the court
system, e.g., docket congestion, ‘are technically attributable to the prosecution[;] they are given a
neutral tint and are assigned only minimal weight in determining whether a defendant was denied
a speedy trial.’ ” People v Gilmore, 222 Mich App 442, 460; 564 NW2d 158 (1997), quoting
Wickham, 200 Mich App at 111. Defendant argues that he was not responsible for the delay and


3
    Barker v. Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972).




                                                -16-
the prosecutor argues that without records from defendant’s prior case numbers, this Court has
no evidence either way. After review of the entire record, we attribute some delay to defendant
and some to the prosecutor. Even so, there is still nearly a year of unaccounted time from
January 7, 2015 to January 26, 2016, for which the Court cannot attribute the delay to either
party.

        The third Barker factor is defendant’s assertion of the right. This factor favors the
prosecutor. Defendant admits he did not assert a speedy trial right at trial. Neither did defendant
object to any of the delays.

         The fourth Barker factor is prejudice to the defendant. This factor also weighs in favor of
the prosecutor. “There are two types of prejudice which a defendant may experience, that is,
prejudice to his person and prejudice to the defense.” People v Collins, 388 Mich. 680, 694; 202
NW2d 769 (1972). Defendant argues his defense was prejudiced by the delay, because his
mother Patrick, a key witness, died during the delay. Defendant asserts that Patrick would have
testified that she sent the text messages about Beasley to multiple people, not just defendant and
that Beasley and Jackson left together. This same testimony was presented by Sgt. Eby who
testified that Patrick’s text messages were sent as group text messages to both defendant and
Jackson. Sgt. Eby also read defendant’s interrogation into the record where defendant stated he
left Marcia’s to go to a party store with Jackson and Beasley and that he and Jackson left Beasley
there. While Patrick’s testimony could have corroborated Sgt. Eby’s testimony, defendant
cannot argue that his defense was prejudiced because Patrick’s absence did not wholly deprive
him of sharing the substance of her testimony with the jury.

        Of the four Barker factors, one weighs in favor of the defendant and two weigh in favor
of the prosecutor. The resolution of defendant’s speedy trial claim is dependent on the reason for
the delay. Under the plain error rule, defendant failed to show that his substantial rights were
affected by the delay from January 2015 to January 2016. Under the Barker factors, defendant
was granted the presumption of prejudice yet, there was no showing of injury from the delay.

        Defendant also faults trial counsel for not moving to dismiss his case on speedy trial
grounds. Defendant cannot establish that he was denied his right to a speedy trial because again,
he fails to account for a year delay in the proceedings and, that he was prejudiced or injured by
the delay. Consequently, defendant cannot show that but for counsel’s error, a different outcome
reasonably would have resulted.

       Affirmed.

                                                             /s/ Kathleen Jansen
                                                             /s/ Patrick M. Meter
                                                             /s/ Cynthia Diane Stephens




                                               -17-
