                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  June 21, 2016
              Plaintiff-Appellee,

v                                                                 No. 325399
                                                                  Macomb Circuit Court
VIKTOR SHAHOLLI,                                                  LC No. LC No. 13-2806-FC

              Defendant-Appellant.


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

PER CURIAM.

        Defendant appeals as of right his jury trial convictions for first-degree premeditated
murder, MCL 750.316(1)(a), and felony-firearm, MCL 750.227b, for which he was sentenced to
life without parole and two years’ imprisonment, respectively. Finding no errors warranting
reversal, we affirm.

                                      I. BASIC FACTS

         The facts of this case are not in dispute. On November 20, 2012, defendant shot and
killed his daughter-in-law’s brother, Dashamir Matjani (Dashamir). At trial, defense counsel
argued that there was no motive for defendant to kill Dashamir, whom he had helped immigrate
to the United States from Albania. Defense counsel argued that the apparent lack of motive was
proof of defendant’s mental illness. In contrast, the prosecution argued that defendant’s motive
in killing Dashamir was to punish his daughter-in-law, Emira Shaholli (Emira).

       Defendant had two sons, Arjan Shaholli (Arjan) and Bledar Shaholli (Bledar). Arjan was
married to Emira. Defendant, Arjan’s family, and Bledar’s family all lived together in a large
house on Hoffman Street in St. Clair Shores. Defendant had a masonry company where Arjan
and Bledar worked, along with other extended family members, including Dashamir. As the
head of the family, defendant controlled each family member’s money. When the economy went
into crisis and the housing market crashed, the home on Hoffman went into foreclosure.
Defendant helped Arjan buy a house on Recreation Street and helped Bledar buy a house on
Masonic.

       On the day of the murder, the family was days away from eviction from the Hoffman
home. Many members of the family were at the Recreation address, working on the home so
that Arjan, Emira and their two young sons could move in. Emira testified that defendant had

                                              -1-
been watching the boys and had left them at a family member’s house. Emira retrieved the boys
and brought them to the Recreation address. Defendant wanted to know why Emira had picked
up the children and expressed his opinion that the children should not be there. Emira relented
and returned to the Hoffman home with the boys. Defendant also went to the Hoffman home
where he grabbed a shotgun. He returned to the Recreation house where he shot Dashamir. No
one saw defendant shoot Dashamir and the gun found outside the home did not contain useable
fingerprints. Nevertheless, defense counsel did not deny that defendant shot and killed
Dashamir.

       After finding out that Dashamir had been shot, but before finding out that he was dead,
Emira called defendant. She asked him what he had done. Defendant admitted that he had shot
Dashamir. Emira testified: “he said he did it so my family would never talk to me for the rest of
my life and hate me for the rest of my life.” She called police and told them that she knew who
had shot her brother. Defendant was prepared to turn himself into police. He called his cousin,
Basri Sulolli, and admitted to shooting “Ellie’s brother” because “he swore on us.”

        Defendant’s mental health – or lack thereof – was the focus at trial. There was no dispute
that defendant had suffered from migraine headaches for many years. Defendant’s sons noticed
a change in defendant after their mother died in November 2010. Defendant lost enjoyment in
working. While everyone agreed that defendant seemed depressed, they did not necessarily
agree on the extent of defendant’s depression. Bledar testified that defendant would sit in a chair
and simply stare at the fireplace. Defendant also made comments to family members about how
his wife would come and visit him in the night. Bledar noticed that defendant would “talk
nonsense.” Defendant’s hygiene also went downhill. Arjan testified that defendant was
depressed but that he was able to carry on daily activities like eating, dressing and driving.
Emira acknowledged that defendant was sad, but he did not appear depressed to her because he
was engaged in his usual activities. Defendant had been taking care of the children for the weeks
before the murder and Emira had no concerns about defendant’s mental health; she described
him as a good grandfather to his grandchildren.

        Dr. Gerald Shiener diagnosed defendant with severe depression, as well as vascular
dementia, which impacted mood, judgment, impulse control, and the ability to appreciate the
consequences of actions. Shiener opined that “the combination of dementia and depression
impaired Mr. Shaholli’s ability to appreciate the consequences of his actions, plan out complex
activities, and control impulses that he had.” Additionally, Shiener concluded that defendant’s
“impairments were not consistent with the ability to appreciate right from wrong . . .his
impairments were not consistent with the ability to refrain from acting in the way that he did.”
Shiener did not believe that defendant was feigning his mental illness. Shiener believed the
crime was without motive and “motiveless actions are more consistent with legal insanity and
mental illness than obvious motives.”

       In contrast, Dr. Donna Rinnas, the director of evaluation services at the Center for
Forensic Psychiatry, saw no evidence that defendant suffered from depression or dementia.
Defendant’s test scores were so low that it appeared defendant gave the wrong answers on
purpose. It was Rinna’s opinion that defendant “did not meet the criteria to be considered legally
insane.” She was critical of Shiener’s failure to consider the police reports when determining
whether defendant was legally insane at the time of the shooting. Rinnas considered the police

                                                -2-
reports and noted that defendant’s behavior that day, including driving, retrieving a firearm,
returning to the Recreation home, and going to the police station where he admitted that he shot
someone displayed purposeful and goal-driven activities as opposed to some random and
confused act.

       Like Rinnas, Dr. Eric Neal opined that defendant was malingering. Neal was a
psychiatrist and the unit leader of a long-term unit at the Center for Forensic Psychiatry. Neal
had the opportunity to observe defendant for three months while defendant was at the Center for
Forensic Psychiatry. Neal also periodically met with defendant individually. Neal, who was
Shiener’s former student, disagreed with Shiener’s findings. Neal noted that defendant’s CT
scan did not show any abnormalities of the brain and the MRI was inconclusive. Vascular
dementia was particularized and required certain findings to diagnose. Neal did not believe
defendant had vascular dementia, primarily because there was an absence of stroke.

       The jury convicted defendant of first-degree premeditated murder and felony-firearm. He
was sentenced as outlined above.

                                     II. COMPETENCY

        Defendant argues that the trial court erred in finding that defendant was competent to
stand trial. We disagree.

       “The determination of a defendant’s competence is within the trial court’s discretion.
People v Newton, 179 Mich App 484, 488; 446 NW2d 487 (1989). “An abuse of discretion
occurs only when the trial court’s decision is outside the range of reasonable and principled
outcomes.” People v Kammeraad, 307 Mich App 98, 140; 858 NW2d 490 (2014).

       “The conviction of an individual when legally incompetent violates due process of law.”
In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000). “To protect this right to due
process, Michigan has enacted statutes and a court rule regarding the competency of criminal
defendants.” Kammeraad, 307 Mich App at 137. Pursuant to MCL 330.2020(1), a criminal
defendant is presumed competent to stand trial. The statute specifically provides:

       A defendant to a criminal charge shall be presumed competent to stand trial. He
       shall be determined incompetent to stand trial only if he is incapable because of
       his mental condition of understanding the nature and object of the proceedings
       against him or of assisting in his defense in a rational manner. The court shall
       determine the capacity of a defendant to assist in his defense by his ability to
       perform the tasks reasonably necessary for him to perform in the preparation of
       his defense and during his trial.




                                              -3-
“It is within the power of the circuit court to determine the capacity of a defendant . . . That
decision, as with any judicial decision, must be based in fact.” People v Davis, 310 Mich App
276, 293; 871 NW2d 392 (2015).1

        At the competency hearing, Ancuta Matei testified that she was a medical doctor and
board certified in adult and geriatric psychiatry. She was an assistant professor at Wayne State
University and also conducted daily psychiatric evaluations. Matei evaluated defendant on
March 28, 2014, interviewing him through an interpreter. Matei was “struck by [defendant’s]
inability to really give coherent logical information whether through interpreter or not. I was
able to make some eye contact at times, but he was not able to give me . . . logical, coherent
information about any of the events leading to him being in this particular situation and being
evaluated by me.” Defendant did not give inappropriate answers, but they were short and
“nonelaborate.” He had a “very sad affect, very perplexed affect when it came to confronting
him with the allegations. And vacant . . .not really present, very indifferent at times.”
Defendant was unable to perform simple cognitive screening tests.

        Family members had informed Matei that defendant had lost his wife to pancreatic cancer
approximately three years before the evaluation. It was at that time that he began to display
unusual behavior. Defendant stopped taking care of himself and began relying on family
members for daily living. He lost interest in activities and his behavior became erratic. Matei
believed that defendant had depression in the context of bereavement. He complained more of
migraine headaches and chronic pain could aggravate depression. Matei testified that, if severe
enough, a major depressive order combined with a pain disorder and cognitive disorder could
affect competency. The fact that the crime was committed near the anniversary of his wife’s
death was significant in the context of major depressive disorder.

        As part of the medical analysis, Matei reviewed an MRI report prepared by Dr. Aronov
from February 5, 2013.2 There was a very small hemorrhagic lesion, or bleeding on the brain, in
the right posterior temporal lobe. Matei believed such a finding was consistent with vascular
dementia and was a physical symptom of impairment. Absent other symptoms and her personal
observation of defendant, it would not necessarily be significant. But Matei’s clinical findings
from her interview, combined with the MRI suggested that defendant was impaired. Because of
his cognitive impairments, Matei concluded that defendant “was not really able to organize his
thoughts in a logical way. He was not really able to plan . . . So that tells me that he is not able
to make informed decisions at any point, even for simple decisions.” Defendant also had “a
highly suggestive vascular lesion of a cavernous angioma,” which can cause memory problems
and seizures, as well as “periventricular and deep cerebral white matter bilaterally,” which were
significant of ischemia (problems with blood flow); there was a “very high probability” that
defendant had suffered mini strokes based on the migraine headaches.



1
 Defendant was initially found incompetent to stand trial by Judge Mark Fratercangeli on June
19, 2012. Defendant was later re-determined to be competent on June 21, 2013.
2
    She did not actually review the MRI itself.


                                                  -4-
        Matei diagnosed defendant with significant impairment in functioning. He had a
cognitive disorder consistent with symptoms of vascular dementia and had severe major
depressive disorder. Matei explained that a cognitive impairment impacted memory, rational
thought, organizing, planning and sequencing. Matei explained that vascular dementia included
a disturbance in memory and executive function. An individual with the disease would have
difficulty remembering things and performing daily activities. Matei did not believe that
defendant was “malingering,” meaning intentionally producing his symptoms “with a secondary
gain.” Ultimately, Matei opined that defendant was unable to understand the nature and the
object of the proceedings and was incapable of assisting defense counsel.

       Clinical neuropsychologist Firoza Van Horn visited defendant at the Macomb County Jail
on October 11, 2013 and April 8, 2014 for a total of three hours. Defendant was “distant,”
“detached,” “in his own world,” and could not give Van Horn his background history or a
version of what happened on the day of the murder. Van Horn did not even bother to administer
tests. Defendant was delusional; he talked about his wife and how she visited him in jail. Van
Horn did not believe that defendant was malingering. Like Matei, Van Horn believed that the
abnormalities shown on the MRI confirmed her impressions that defendant may suffer from
vascular dementia. Defendant had severe depression with a brain impairment. Van Horn did not
believe that defendant had an understanding of the nature and object of the proceedings against
him and was incapable of assisting counsel in his defense.

        Dr. Gerald Shiener also testified for defendant. Shiener was Chief of Psychiatry at Sinai
Grace Hospital and taught at Wayne State’s Medical School and some law schools. Shiener
interviewed defendant three times with the help of translators – in March 2012, April 2013, and
March 2014. Shiener diagnosed defendant with “acute psychiatric illnesses, cognitive disorder
vascular-type dementia,” as well as major depression. Shiener found no evidence of malingering
in defendant. Given defendant’s statements that he saw his dead wife at night, Shiener believed
defendant was “out of touch with reality.” Shiener reviewed Aronov’s report and also looked at
the MRI himself. He believed that defendant’s brain was small for a man his age, which was
significant because it coincided with problems in memory, concentration, attention and behavior.
Defendant also had some “vascular issue.” There were objective indications on defendant’s x-
ray that coincided with Shiener’s clinical observations. Shiener believed defendant was unable
to understand the nature or object of the proceedings against him and was unable to assist in his
defense.

       Ronald Jamieson testified that he was a deputy at the Macomb County Jail and had the
opportunity to observe defendant since August 2013. Jamieson considered defendant to be a
“role model” inmate. Jamieson saw defendant communicate with other inmates. Defendant did
not appear confused or unable to handle daily activities. Jamieson also observed defendant
playing chess and checkers.

       Adriatik Jeminaj testified that he was a corrections deputy at the Macomb County Jail
and also spoke Albanian. Defendant was a model inmate with the exception of a statement
defendant made on July 21, 2012 regarding wanting to twist the head of a mental health
professional who had him transferred to jail.



                                               -5-
         Thomas Brewer testified that he was a forensic examiner at the Center for Forensic
Psychiatry. He had a master’s degree in social work and a Ph.D. in clinical psychology. Brewer
met with defendant on October 7, 2013. Defendant appeared unkempt and disheveled. At times
defendant’s comments were on point and at other times he was entirely off the mark. Normally,
Brewer would not expect to see such a variation (6/20/14 Competency Hearing, p 58.) Brewer
testified: “And then at one point when I, after I’d gotten to the point where I realized that he was
not going to cooperate, and I told him that I was going to have to tell Your Honor what my
opinion was about his cooperation. He just, he terminated the interview and said [‘]screw this[‘]
and he stopped the interview.” Brewer was unable to perform any tests but concluded that
defendant did not appear to be suffering from dementia. Based on his own observations as well
as reviewing other reports, Brewer believed defendant was “feigning” or “grossly exaggerating”
his symptoms.

        Dr. Eric Neal testified that he was board certified in general and forensic psychiatry. He
was a staff psychiatrist at the Center for Forensic Psychiatry. Defendant was under Neal’s
supervision from March 14, 2013 to June 25, 2013 “[a]nd so in three and a half months that I had
him it was very important to observe his capacities and did his capacities match up with his
presentation.” While defendant’s scores on some tests were so low that it indicated he needed a
lockdown nursing unit, Neal noted that defendant “provided observational evidence that
suggested he was oriented to his circumstances, he had planning capacity, he had sequential
memory, he also had the ability to start and stop complex events and that he also could self
advocate on a regular basis for himself.” As an example, Neal pointed to the fact that defendant
came out of his room, obtained a remote control for the television, watched a soccer match, and
then returned the remote control. Defendant, whom Neal had no doubt suffered from migraine
headaches, advocated on his own behalf regarding the amount of medicine he was due.
Defendant also loved playing chess and although his family indicated that he had stopped
playing, defendant would advise his fellow inmates on their moves.

        The CT scan was important to Neal because it was administered with and without
contrast and there were no abnormalities; the MRI did not include a contrast. For vascular
dementia, there would need to be physical findings, cognitive findings, and known evidence of
stroke. There were no physical findings of vascular dementia by the emergency room physician,
internal medicine physician, or neurologist. While Neal did not dispute the findings of the MRI,
he took issue with how those findings were applied relative to defendant’s presentation. The
MRI was also consistent with normal age-related changes and congenital anomalies. Neal
opined that defendant was malingering. After observing defendant for three months, Neal
questioned whether defendant even had depression.

         Defendant called as rebuttal witnesses two of his fellow prisoners. Anthony Webster
testified that he was in a cell adjacent to defendant for eight months. Each inmate in maximum
security at the jail had two hours a day out of the cell. At no time did Webster see defendant
play checkers, chess, or cards. Defendant would walk back and forth as a form of exercise, but
kept mostly to himself. The only word Webster heard defendant say was “easy” when someone
was yelling in another cell. Defendant would ask Webster for soccer scores.

       Stanley Duncan testified that he was in a cell adjacent to defendant. Defendant would
say “hi” but did not appear to understand much English. Duncan never heard or observed

                                                -6-
defendant playing cards, dice, checkers or chess. They had coffee together every morning.
Duncan, who did not know that defendant’s wife was dead, would tease defendant that he needed
to call his wife or she was going to “cut you off.” Defendant would ask Duncan about his
family. Sometimes defendant had trouble understanding English so Duncan would have to
rephrase things or use hand gestures. Defendant loved soccer. There were occasions when
defendant did not know what day it was or what was going on. Duncan once allowed defendant
to use a razor blade to shave a portion of his face.

        At the close of testimony and arguments, the trial court concluded that defendant was
competent to stand trial. This finding was not an abuse of discretion. Contrary to defendant’s
contention, the trial court did not conclude that Shiener was “incapable” of reading the MRI and
CT images. Instead, the trial court acknowledged that there were various interpretations of the
images, but that the radiologist’s opinion was the most important: “And I think the most
poignant explanation is, and I think the most poignant statement was made by Dr. Neal that it is
the radiologist who needs to properly evaluate the findings made in the tests such as the MRIs
and that they are better suited because they are better studied.” Additionally, the trial court was
careful to state that it did not want to “diminish the testimony of the other doctors who had the
opportunity to review the records, but I think significantly and substantially we need to look at
which of the doctors had the opportunity to visit with the Defendant and observe the Defendant
at more of a length of time than those that did not, such as Dr. Shiener, Dr. Matei . . . I think Dr.
O’Neal’s [sic] opinion is based on sound conclusions. I, as I indicated I’m not in a position to
diminish the other doctors. I’m suggesting that the other doctors have formulated an opinion
without the advantages of Dr. Neal.” Thus, there is no support for defendant’s claim that the trial
court ignored his experts’ opinions.

        Defendant also argues that the trial court placed too much emphasis on the Center for
Forensic Psychiatry’s staff observations of defendant while ignoring testimony from defendant’s
fellow inmates. In fact, the trial court found that the inmates’ testimony was further evidence
that defendant was competent: “harmful indeed were the testimony of the inmates who on a daily
basis are able to communicate with this Defendant.” Defendant chatted about sports with those
inmates and shared daily coffee with one. The trial court’s finding was rooted in the evidence.

        Finally, to the extent defendant argues that the trial court discounted trial counsel’s claim
that his client could not properly communicate, we take notice that defense counsel, Tim
Barkovic, had an extensive history of bombastic behavior in Macomb County and has since
resigned from the practice of law as part of an agreement with the Attorney Discipline Board.
The veracity of the counsel’s statements was for the trial court to determine.

       It is clear that the trial court’s findings were “based in fact,” Davis, 310 Mich App at 293,
and within the range of “reasonable and principled outcomes.” Kammeraad, 307 Mich App at
140. Defendant asks this Court to substitute its judgment for the trial court, which it will not do.

                                    III. DOUBLE JEOPARDY

       Defendant’s first trial ended in a mistrial following opening statements. Defendant
argues that the trial court erred when it concluded that the prosecutor’s behavior was


                                                -7-
unintentional. Defendant maintains that counsel was goaded into moving for a mistrial and that
defendant’s subsequent retrial violated his right against double jeopardy. We disagree.

        “This Court reviews de novo questions of law, such as a double jeopardy challenge.”
People v Gibbs, 299 Mich App 473, 488; 830 NW2d 821 (2013). If such a challenge is based on
a trial court’s findings of fact in determining “whether a prosecutor intended to goad the
defendant into moving for a mistrial,” this Court reviews the findings for clear error. People v
Dawson, 431 Mich 234, 258; 427 NW2d 886 (1988). “A finding of fact is clearly erroneous if,
after a review of the entire record, an appellate court is left with a definite and firm conviction
that a mistake has been made.” People v Antwine, 293 Mich App 192, 194; 809 NW2d 439
(2011) (internal quotation marks omitted).

       Both the United States and Michigan Constitutions protect a defendant “from being twice
placed in jeopardy for the same offense.” People v Nutt, 469 Mich 565, 574; 677 NW2d 1
(2004), citing US Const, Am V; Const 1963, art 1, § 15.

               The double jeopardy provisions of the Michigan and federal constitutions
       protect an accused from being twice put in jeopardy for the same offense. “Being
       twice put in jeopardy” includes being subjected to a retrial after the initial
       prosecution ends in a mistrial. An exception to the double jeopardy bar has been
       made, and retrials allowed, where the prosecutorial or judicial errors requiring the
       mistrial appear to have been innocent or were beyond the prosecutor’s control. A
       general exception has also been made where the mistrial was granted on the
       defendant’s motion or with his consent. Where prosecutorial conduct provoked
       the defendant’s motion for mistrial, however, the Double Jeopardy Clause has
       sometimes been held to bar retrial. [People v Dawson, 431 Mich 234, 235-236;
       427 NW2d 886 (1988) (internal footnotes omitted).]

Dawson affirmatively held that “retrial is barred where the prosecutor intended to goad the
defendant into moving for a mistrial.” Id. at 236. The Dawson Court looked to Justice Powell’s
concurrence in Oregon v Kennedy, 456 US 667; 102 S Ct 2083; 72 L Ed 2d 416 (1982), where
Powell indicates that a prosecutor’s subjective intent “often may be unknowable” and, therefore,
in deciding a double jeopardy motion, a trial court “should rely primarily on facts and
circumstances of a particular case.” Dawson, 431 Mich 254. The Court held:

               Retrials are an exception to the general double jeopardy bar. Where a
       mistrial results from apparently innocent or even negligent prosecutorial error, or
       from factors beyond his control, the public interest in allowing a retrial outweighs
       the double jeopardy bar. The balance tilts, however, where the judge finds, on the
       basis of the “objective facts and circumstances of the particular case,” that the
       prosecutor intended to goad the defendant into moving for a mistrial. [Id. at 257
       (internal footnote omitted).]

In Dawson, the prosecutor conceded that it intentionally goaded defense counsel to move for a
mistrial; therefore, the Court did not have to undertake such an analysis.

       The following are excerpts from the prosecutor’s opening statement:

                                                -8-
               Now, you heard in the beginning and some in voir dire that there was
       reference to different proofs and evidence and motive and things like that. First
       and foremost, motive is not an element. The People do not need to prove motive.
       In fact, many times there is no motive for murder. Self-defense isn’t a motive for
       murder. Self-defense is justification. There is no murder for murder. But, in this
       case, ultimately it boils [down] to pride and power. It boils down to control. It
       boils down to Viktor Shaholli, of Albanian nationality, and his family. And it
       boils down, ultimately, to the death of an innocent bystander, Dashamir Matjani.

                                                ***

               The defendant and his family at one point had a plan. They lived in St.
       Clair Shores and they lived in a beautiful, huge home. And it was being built for
       this one purpose, so that multiple families could create – I don’t want to say a
       compound – but a community together. And the patriarch of that family was
       Viktor.

                                                ***

              The compound, the communal environment was falling apart. Pride and
       power had its place . . .

                                                ***

               Now, the big question you will hear is why? Why did he do it? Frankly,
       the answer to that doesn’t matter. I did it is what matters. And she’ll tell you the
       motive. She asked him why. He said so the rest of the family will hate you. And
       you heard the term ‘crazy’ being thrown around. That seemed like a crazy
       rationale. But that’s layperson crazy. That’s not you and I. There is no rational,
       reasonable basis for doing something like that. But that is not legal insanity. Jihad
       is crazy to me. But that’s not legal insanity.

       Defense counsel moved for a mistrial, arguing that the prosecutor had inserted ethnic
generalizations into the trial. Defense counsel was also concerned with the fact that the
prosecutor had asked one juror if she had an opinion about Albanians and the juror responded
that they were vindictive troublemakers who were prone to violence. Defense counsel
complained that the prosecutor had intimated that defendant’s Albanian heritage compelled
defendant to kill the victim as some sort of honor killing or because of disrespect.

        The trial court determined that the prosecutor was trying to ascertain bias during voir dire
when he interjected the fact that defendant was Albanian. But the trial court was persuaded that
other comments were inappropriate.

               THE COURT: Yeah, I do not find the word ‘compound’ objectionable. I
       do not find the word ‘patriarch’ objectionable. All that means is that he is the head
       of the family, as you are the patriarch of your family, as your father is deceased.
       And I don’t know the situation of the prosecutor. So I don’t find those two terms
       objectionable. The only objectionable thing I heard at – during that opening

                                                -9-
       statement was that “it all boils down to the Albanian nationality.” It was right at
       the very beginning.

                                                ***

               THE COURT: And you couple that with the voir dire question to the juror
       who responded to your question are you going to be biased, and she says yes,
       because she perceives Albanians to be whatever she said. And not good, whatever
       she said wasn’t good. So –

               MR. FOX [the prosecutor]: Right. But the voir dire question was –

              THE COURT: You, by making the statement that Viktor’s Albanian put
       him and his nationality on trial.

Ultimately, the trial court ruled as follows:

               THE COURT: I feel, based on things that I heard, that we’re putting the
       ethnicity of the Albanians on trial. They live in compound, which is a rude, crude
       word, although it’s not – it can be interpreted that way, but you could have used
       they lived together as an extended family. When you start putting all the words
       together, you’re creating an environment, which I agree with Mr. Barkovic, that’s
       hostile, that’s associated with the Albanian culture . . .

               MR. FOX: And, Judge, as you just indicated when you first started to
       address this, the word ‘compound’ was used twice in that half hour or so. Every
       other time, multiple times, I said a communal environment.

              THE COURT: But every time we hear ‘compound’ on the news, it’s never
       good, ever is it good to hear ‘compound’ on the news and it’s associated with
       good stuff. Never.

               MR. FOX: Judge, I apologize for how it is used on the news –

               THE COURT: I am going to grant the mistrial, but I’m not going to find
       that it was deliberately done. I don’t believe that this prosecutor had any
       deliberate intention, which means we are going to re-pick a jury. And I am ready
       to do that this afternoon.

        The objective facts and circumstances in this case support the trial court’s finding that the
prosecutor’s conduct was unintentional and not meant to goad defendant into moving for a
mistrial. It is evident that it was not the prosecutor’s intention to poison the jury against
defendant, although he did use some unfortunate language. Additionally, the prosecutor strongly
opposed defendant’s motion for mistrial. We are not left with the definite and firm conviction
that a mistake was made.

                        IV. PROSECUTORIAL ERROR/MISCONDUCT


                                                -10-
       Defendant claims that he was deprived of a fair trial due to the prosecutor’s conduct. We
disagree.

        “Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial. A defendant’s opportunity for a fair trial can be jeopardized when the prosecutor
interjects issues broader than the defendant’s guilt or innocence.” People v Dobek, 274 Mich
App 58, 63-64; 732 NW2d 546 (2007) (internal citations omitted). However, a prosecutor’s
remarks must be considered in light of the facts of the case and any of defendant’s argument.
Rodriguez, 251 Mich App at 31. As a result, “[i]ssues of prosecutorial misconduct are reviewed
on a case-by-case basis by examining the record and evaluating the remarks in context.” People
v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010) (internal quotation marks omitted).

             1. IMPROPER DISCUSSION OF DEFENDANT’S COMPETENCY

         Defendant argues that the prosecutor interjected the issue of defendant’s competency into
trial, conflating the concept of competency with the concept of legal insanity and making no
attempt to differentiate between the terms. “A prosecutor’s clear misstatement of the law that
remains uncorrected may deprive a defendant of a fair trial. However, if the jury is correctly
instructed on the law, an erroneous legal argument made by the prosecutor can potentially be
cured.” People v Grayer, 252 Mich App 349, 357; 651 NW2d 818 (2002) (internal citations
omitted). The prosecutor did not conflate the concepts of insanity and competence. In fact, the
prosecutor indicated that these concepts, as well as the concept of mental illness, were different –
“there’s a difference, that he was mentally ill, that he was incompetent or that he was legally
insane.” In any event, the trial court thoroughly and accurately instructed the jury on the issue of
insanity and further admonished “[t]he lawyers’ statements and arguments are not evidence.
They are only meant to help you understand the evidence and each side’s legal theories.” Thus,
to the extent that the prosecutor may have conflated the issues, such error was cured by the trial
court’s jury instructions.

        Prior to selecting a jury at the second trial, a lengthy discussion took place regarding
whether defense counsel could present to the jury the fact that defendant had been “locked up”
for a year. The prosecutor objected to such a characterization. The trial court permitted defense
counsel to discuss defendant’s time at the Center for Forensic Psychiatry, with the caveat that the
prosecutor would be able to “fill in the gaps” with reference to subsequent orders finding
defendant competent. The trial court admonished the prosecutor that it could only tell the jury
that defendant was found competent; the prosecutor was prohibited from further explaining that
the trial court had previously determined that defendant was a malingerer. The prosecutor
provided the jury with an appropriate explanation for defendant’s hospitalization and did not
violate the trial court’s admonishment that evidence that its prior ruling finding defendant to be a
malingerer would not be allowed.

                2. DENIGRATING DEFENDANT AND DEFENSE COUNSEL

       During opening statement, the prosecutor stated:




                                               -11-
              Now as a side note the Judge is going to talk to you about the credibility of
       witnesses, motivation to testify. No one expects Dr. Shiener to do this out of the
       goodness of his heart. But make no mistake there’s compensation involved.

                                                ***

              But Dr. Shiener doesn’t rely on just the MRI and he doesn’t rely on these
       headaches. His biggest reliance is this, Defendant, tell me about yourself. I don’t
       know. What did you do? I don’t understand these things, I don’t know. Tell me
       about your family? I don’t know. What happened? Where are you? I don’t know.
       How am I supposed to know these things. Dr. Shiener takes Defendant at his
       word. Because he said I don’t know so many times, my gosh, he must be mentally
       impaired.

                                                ***

              It’s a farce, it’s a lie, it’s a fake. It is what everyone from the Forensic
       Center says and calls malingering. Defendant is not legally insane. He’s not even
       mentally ill.

                                                ***

              But like I said when it all comes down to the end, when you’re sitting in
       the back and say, oh, Dr. Shiener, well he’s older, more experienced. My gosh,
       Defense might even say, and you might have heard this, he was a professor and he
       taught Dr. Neal. Yeah, Dr. Neal I think had a couple hours of class (inaudible).
       Dr. Neal is one of the most respected forensic psychiatrists around. There’s a
       reason he’s the head of a division in the Forensic Center. Dr. Neal can teach the
       old dog some new tricks. And the trick is, tell the truth and don’t tell tricks at all.
       See Dr. Neal you can believe. I submit to you that he will be more credible. Dr.
       Rinnas I submit to you will be consistent and more credible. Dr. Shiener will tell
       the opposite. And you all might sit back there and (inaudible) at the time, oh my
       gosh, but Dr. One said this, Dr. Two said that; Dr. Two said that, Dr. Three said
       something else. What do you do? You know what you do, you remember
       November 20th, 2011. Because on November 20th, 2011, that’s the Defendant
       who killed Dashamir. That’s the man who grabbed a gun and executed his
       daughter in law’s brother so the rest of the family would hate her. That’s the man
       who was so aware of what he had done that he fled the scene, he dropped the gun,
       he drove home, he called for help to take him to the police station. Not to take
       him there, excuse me, he made it there all by himself. But when he got to there to
       have an interpreter so he could tell the police what he had done. Why? Because
       what he had done was wrong and he knew it.

              There is no defense in this case. He is not legally insane.

      There is nothing improper about the prosecutor’s arguments. “[A] prosecuting attorney
may not personally attack defense counsel,” People v McLaughlin, 258 Mich App 635, 646; 672
NW2d 860 (2003), and “may not suggest that defense counsel is intentionally attempting to
                                                -12-
mislead the jury.” People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). Likewise,
the prosecutor may not personally attack the defendant’s credibility with “intemperate and
prejudicial remarks” and may not suggest that a defendant or defense counsel is trying to
manipulate or mislead the jury. People v Light, 480 Mich 1198; 748 NW2d 518 (2008); People
v Bahoda, 448 Mich 261, 283; 531 NW2d 659 (1995); People v Watson, 245 Mich App 572,
592; 629 NW2d 411 (2001). Additionally, a prosecutor “cannot vouch for the credibility of his
witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.”
Bahoda, 448 Mich at 276. However, that does not foreclose the prosecutor from arguing that
defendant or his witnesses are not worthy of belief. People v Dobek, 274 Mich App 58, 67; 732
NW2d 546 (2007). The prosecution is free to argue that defense counsel “bought” expert
testimony because such an argument does not “denigrate defense counsel as much as it tend[s] to
denigrate the expert witness himself. Moreover, counsel is always free to argue from the
evidence presented at trial that an expert witness had a financial motive to testify.” Id.

    3. INJECTING MATTERS EXTRANEOUS AND PREJUDICIAL TO DEFENDANT

        Defendant argues that the prosecutor also injected issues broader than guilt when it
discussed mortgage fraud and the murder of a child. During opening statements, the prosecutor
stated:

       We’re going to talk about a lot of things that proves the evidence, the elements,
       and you’ll notice one thing we won’t necessarily discuss at length, and that’s the
       motive. Because at the end of the day motive doesn’t matter. Why’d he do it?
       There’s a lot of people that do a lot of things we’re never going to understand.
       Two weeks ago it was in a newspaper that a man went out and executed a two
       year old girl in Inkster. You remember that in the news. No one in the world could
       say that was rational. So the issue of the motive, the question you can have, it’s
       okay to have that question as long as you understand and you agree that we
       satisfied the elements, and I assure you we will.

                                              ***

       You see Arjan and Emira resided in this home for a time. But in 2011 and trust
       me, there are financial issues you’re going to hear about. You’re going to hear at
       one point that the home was being foreclosed with the plan of buying it from the
       bank as you may have heard was, I don’t want to say common practice, but it
       happened during the housing crisis. When the house was going to go into
       foreclosure the plan was for the family to buy it back. You’re going to hear how
       they invested in properties and did things like that.

                                              ***

       What really was being pushed by dad by the Defendant was, when we move here
       to Recreation, we improve the home, we sell the home, we make a profit and we
       use that profit to help buy the house that we were losing in foreclosure, the big
       home. It was all part of a plan to keep this big family unit together in that large
       home in St. Clair Shores.

                                              -13-
        While “[a] defendant’s opportunity for a fair trial can be jeopardized when the prosecutor
interjects issues broader than the defendant’s guilt or innocence,” Dobek, 274 Mich App at 63-
64, prosecutor’s comments were appropriate under the circumstances. As demonstrated by
taking the comments in full context, the prosecutor did not inject mortgage fraud into the case;
instead, the prosecutor was simply setting forth the background of the case to give the jury a
picture of what was happening at the time of the murder. Further, the child’s murder was used,
not to encourage the jury to convict defendant for an alleged revenge killing, but to indicate to
the jury that motive was sometimes an elusive concept. Neither the prosecutor’s reference to the
foreclosure of the Hoffman home nor the murder of a two-year-old was inappropriate when the
statements are viewed in context.

                  4. MISSTATEMENT OF LAW CONCERNING MOTIVE

        In addition to stating that “motive doesn’t matter,” as noted above, the prosecutor also
stated” [w]e don’t need to prove motive.” Again, a prosecutor may not misstate the law, Grayer,
252 Mich App at 357, but there is nothing in the prosecutor’s comments that misstates the law.
Defendant is correct that “[a]lthough motive is not an essential element of the crime, evidence of
motive in a prosecution for murder is always relevant.” Unger, 278 Mich App at 223. However,
the prosecutor’s statement that motive “doesn’t matter” was completely accurate. The
prosecutor was simply telling the jury that it did not have to understand defendant’s motive in
order to convict him of first-degree premeditated murder. Additionally, as previously stated, the
trial court instructed the jury that “[t]he lawyers’ statements and arguments are not evidence.
They are only meant to help you understand the evidence and each side’s legal theories.” Thus,
to the extent the prosecutor misstated the law, the error was corrected in the trial court’s
instructions to the jury.

                                  5. MOTION FOR MISTRIAL

        Defendant argues that the trial court erred in denying defense counsel’s motion for a
mistrial. We disagree.

       We review for an abuse of discretion a trial court’s decision regarding a motion
       for a mistrial. This Court will find an abuse of discretion if the trial court chose an
       outcome that is outside the range of principled outcomes. A trial court should
       grant a mistrial only for an irregularity that is prejudicial to the rights of the
       defendant and impairs his ability to get a fair trial. [People v Schaw, 288 Mich
       App 231, 236; 791 NW2d 743 (2010) (internal quotation marks and citations
       omitted).]

Having concluded that none of the above statements were erroneous, there was no basis for a
mistrial and that trial court did not abuse its discretion in denying defendant’s motion.

                                   6. CLOSING ARGUMENT

       Many of the prosecutor’s arguments at closing were similar to those he made in his
opening statement. For the same reasons as previously stated, there is no basis for defendant’s
claim that the prosecutor’s closing argument deprived him of a fair trial. As previously
discussed, the prosecutor was within his right to argue that Shiener was not an independent
                                                -14-
witness and that the prosecutor’s witnesses were worthy of belief. The prosecutor was also at
liberty to attack defendant’s insanity defense.

                         V. ACCOMMODATIONS UNDER THE ADA

        Defendant next argues that defendant’s mental disability qualified him for
accommodations under the Americans with Disabilities Act (ADA), 42 USC 1201 et seq, and
that the trial court erred in failing to appoint defendant lawyer-guardian ad litem (L-GAL). We
disagree.

       Defendant claims that he was denied a fair trial. Such a constitutional question is
reviewed de novo on appeal. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

       Defendant’s argument that the trial court should have appointed an L-GAL fails because
(1) defense counsel failed to show that defendant was, in fact, disabled; and, (2) even if
defendant was disabled, the law did not compel that an L-GAL be appointed, especially where
defendant had competent legal counsel and had been appointed a guardian in the probate court.

        Under the ADA, “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USC
12132. “The term ‘qualified individual with a disability’ means an individual with a disability
who,      with     or     without    reasonable    modifications      to    rules,   policies,    or
practices, . . .communication, . . . meets the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public entity.” 42 USC
12131. As the trial court repeatedly found, defendant was competent to stand trial and was
malingering. While defendant claims that the inquiry of whether defendant was competent to
stand trial is different from an inquiry as to whether defendant had a mental disability, the fact
remains that defendant used the same symptoms to cover competence, mental illness and
insanity. Not having a disability, defendant was not entitled to accommodations under the ADA.

        Additionally, as defendant concedes, there is no case law to support his position that a
defendant, who already has competent counsel and a guardian from a prior probate matter, must
also have an L-GAL. In People v Whyte, 165 Mich App 409, 414; 418 NW2d 484 (1988), the
Court noted: “Appellate counsel also argues that because he is unable to communicate with his
client, due to his client’s incompetency, a guardian ad litem should be appointed for defendant.
We decline to engraft such a device on a criminal proceeding.” Citing Whyte, this Court has also
rejected a similar argument in an unpublished case:

              On appeal, defendant argues that the trial court, knowing of his mental
       disorders, denied him a fair trial when it failed to sua sponte petition the probate
       court for appointment of a guardian to make informed decisions on his behalf.
       Defendant also argues that he was denied the effective assistance of counsel when
       defense counsel failed to seek the appointment of a guardian for such purpose. We
       find neither argument sufficient to provide a basis to disturb defendant’s
       conviction.



                                               -15-
               Defendant is correct that the Estates and Protected Individuals Code
       (EPIC), MCL 700.1101 et seq., allows a person interested in the welfare of an
       incapacitated individual to petition the probate court for appointment of a
       guardian for the incapacitated individual. See MCL 700.5303(1). However,
       defendant concedes that there is no authority from which it can be concluded that
       the guardianship provisions of the EPIC were intended to be, or should otherwise
       be construed as, applicable to criminal proceedings. Moreover, defendant has
       failed to provide any argument or authority to persuade us that a criminal
       defendant who suffers from a mental or personality disorder but has been found
       competent to stand trial is unable to make intelligent and informed decisions on
       his own behalf. In the absence of any such argument or authority, we are not
       inclined to extend the provisions of the EPIC to criminal proceedings, or to
       otherwise hold that a defendant found competent to stand trial is entitled to the
       appointment of a guardian. See People v. Whyte, 165 Mich App 409, 414; 418
       NW2d 484 (1988) (declining “to engraft such a device on a criminal
       proceeding”). Thus, we reject defendant’s argument that he was deprived of a fair
       trial as a result of the trial court’s failure to sua sponte seek appointment of a
       guardian. [People v Lulow, unpublished opinion per curiam of the Michigan
       Court of Appeals, issued October 24, 2006 (Docket No. 246110) slip op, pp 1-2
       (2006) lv den 477 Mich 1112 (2007).]

Defendant was not entitled to an L-GAL and was, therefore, not deprived of a fair trial.

            VI. RIGHT TO PRESENT A DEFENSE/ADMISSION OF EVIDENCE

       Defendant argues that the trial court essentially deprived him of presenting a defense
when it denied defendant’s request to have two orders from the Macomb County Probate Court
admitted into evidence. Defendant maintains that the orders, which appointed defendant a
guardian and conservator, were relevant to his mental health history.

        “This Court reviews preserved evidentiary issues for an abuse of discretion. A trial court
abuses its discretion when it chooses an outcome that is outside the range of reasonable and
principled outcomes.” People v Orr, 275 Mich App 587, 588-89; 739 NW2d 385 (2007)
(internal footnote omitted). “This Court . . .reviews de novo the constitutional question whether
a defendant was denied [his] constitutional right to present a defense.” People v Kurr, 253 Mich
App 317, 327; 654 NW2d 651, 656 (2002).

       The trial court did not abuse its discretion when it refused to allow defense counsel to
introduce the orders. Defendant acknowledges People v Carpenter, 464 Mich 223; 627 NW2d
276 (2001), which has held:

               The Legislature has enacted a comprehensive statutory scheme setting
       forth the requirements for and the effects of asserting a defense based on either
       mental illness or mental retardation. We conclude that, in so doing, the
       Legislature has signified its intent not to allow evidence of a defendant's lack of
       mental capacity short of legal insanity to avoid or reduce criminal responsibility
       by negating specific intent. Rather, the insanity defense as established by the

                                               -16-
       Legislature is the sole standard for determining criminal responsibility as it relates
       to mental illness or retardation. Consequently, we affirm the decision of the Court
       of Appeals on this alternative basis. [Id. at 241.]

But defendant argues that Carpenter “left open the possibility that if there is another valid reason
to admit this evidence it may be admissible.” (Defendant’s Brief on Appeal, p 43.) He cites
People v Burns, unpublished opinion per curiam of the Court of Appeals, issued September 18,
2012 (Docket No. 305037), which noted:

       “Hence, a defendant is not entitled to offer evidence of a lack of mental capacity
       for the purpose of avoiding or reducing criminal responsibility by negating the
       intent element of an offense.” People v Yost, 278 Mich App 341, 354–355; 749
       NW2d 753 (2008). “[T]his does not mean[, however,] that a defendant who is
       legally sane can never present evidence that he or she is afflicted with a mental
       disorder or otherwise has limited mental capabilities.” Id. at 355. If such evidence
       is offered “for a relevant purpose other than to negate the specific intent element
       of the charged crimes,” it may be admissible. [Burns, slip op, p 2.]

However, in Burns, this Court ultimately affirmed the trial court’s decision to preclude evidence
of the defendant’s unusual behavior prior to the crime.

        Defendant argues that, in this case, the evidence was relevant to “rebut the claim that Mr.
Shaholli’s defense was a complete fabrication and to show that he did not suffer from a mental
illness as was determined by the [Macomb County Probate Court],” and was admissible under
MCL 600.2106, which provides:

               A copy of any order, judgment or decree, of any court of record in this
       state, duly authenticated by the certificate of the judge, clerk or register of such
       court, under the seal thereof, shall be admissible in evidence in any court in this
       state, and shall be prima facie evidence of the jurisdiction of said court over the
       parties to such proceedings and of all facts recited therein, and of the regularity of
       all proceedings prior to, and including the making of such order, judgment or
       decree.

Defendant cites People v Dray, 469 Mich 979; 671 NW2d 873 (2003), wherein our Supreme
Court reversed this Court’s finding that the trial court did not err in denying a motion to
introduce a probate court order regarding the appointment of a guardian. The Supreme Court
determined that such an order was admissible pursuant to MCL 600.2106. However, defendant
fails to point out that in Dray it was the prosecution who sought to introduce evidence of the
victim’s lack of capacity to consent to an alleged kidnapping. People v Dray, unpublished
opinion per curiam of the Court of the Appeals, issued August 7, 2003 (Docket No. 242622).
Dray does not support defendant’s position and does not change the fact that evidence of
defendant’s mental capacity was inadmissible under Carpenter.

       Because the trial court did not abuse its discretion in refusing to allow the evidence, it
cannot be said that its decision denied defendant the right to present a defense. “A criminal
defendant has a right to present a defense under our state and federal constitutions,” which

                                               -17-
necessarily includes evidence that “might influence the determination of guilt.” People v Anstey,
476 Mich 436, 460; 719 NW2d 579, 593 (2006). Defendant pursued the defense of legal
insanity and presented expert testimony that he suffered from mental illness – severe depression
and vascular dementia – such that he could not appreciate the consequences of his actions. The
probate orders were not necessary for defendant to pursue an insanity defense.

                               VII. MOTION FOR NEW TRIAL

       Finally, defendant argues that although the trial court was presented with a substantial
motion for new trial, it cut off defense counsel’s arguments at the hearing and did not entertain
each claim of error. In essence, defendant claims that the trial court abused its discretion when it
denied the motion without exercising its discretion. We disagree.

      “We review a denial of a motion for new trial for an abuse of discretion.” Unger, 278
Mich App at 232.

       Defendant’s motion for new trial alleged the following errors:

       1) The trial court abused its discretion in finding Mr. Shaholli competent to stand
       trial while he was mentally ill to the extent that he did not understand the nature
       and object of the charges against him, and was unable to communicate with or
       assist counsel in the preparation of his defense;

       2) The trial court’s finding that the prosecutorial misconduct resulting in a
       mistrial was unintentional was clearly erroneous and the subsequent retrial,
       resulted in a violation of Mr. Shaholli’s federal and state right against double
       jeopardy . . .;

       3) Mr. Shaholli’s convictions of first-degree premeditated murder and felony-
       firearm were the product of prosecutorial misconduct where the prosecutor’s
       opening statement, closing argument and actions denigrated the defendant and
       defense, conflated and misstated legal concepts that confused and mislead [sic]
       the jury and intentionally made improper, highly inflammatory and prejudicial
       remarks to the jury while interjecting extraneous factors into the trial;

       4) The court erred in refusing to grant Mr. Shaholli’s motion for accommodation
       under the [ADA];

       5) The trial court committed clear error in refusing to appoint a[n L-GAL] to
       assist Mr. Shaholli in the criminal proceeds, forcing conflicted trial counsel to act
       as advocate and guardian of his client, two mutually exclusive roles that adversely
       affected his ability to properly represent Mr. Shaholli’s interests and provide
       effective counsel, and contrary to Michigan Rules of Professional Conduct
       (MRPC) 1.14;

       6) The court erred where it refused to admit evidence of the finding of [the
       probate court] orders finding that Mr. Shaholli was mentally ill and could not
       conduct normal daily activities of financial matters, which were relevant to his

                                               -18-
       defense, admissible and implicated his right to present a defense. [10/10/14
       Motion for New Trial, Lower Court File Vol II.]

       Although the trial court may have not separately addressed each issue at the hearing, it
had previously addressed all of the issues on numerous prior occasions. Because we have
concluded that none of these claims of error have merit, it cannot be said that defendant suffered
any prejudice as a result of the trial court’s abbreviated treatment of the motion.

       Affirmed.

                                                            /s/ Michael J. Kelly
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Kirsten Frank Kelly




                                              -19-
