                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                UNPUBLISHED
                                                                October 20, 2015
              Plaintiff-Appellee,

v                                                               No. 321344
                                                                Oakland Circuit Court
MARQUESE BRYANT MCCRAY,                                         LC No. 2013-245059-FC

              Defendant-Appellant.



PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                               No. 321772
                                                                Oakland Circuit Court
JAMES VERDELL WATKINS,                                          LC No. 2013-245062-FC

              Defendant-Appellant.


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


PER CURIAM.

        Defendants Marquese McCray and James Watkins were tried jointly, before separate
juries. In LC No. 2013-245059-FC, a jury convicted defendant McCray of first-degree felony
murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and two counts of possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. In LC No. 2013-
245062-FC, a separate jury convicted defendant Watkins of armed robbery, but acquitted him on
the charge of felony-murder. The trial court sentenced McCray to life imprisonment without
parole for the felony murder conviction, 23 to 60 years’ imprisonment for the armed robbery
conviction, and two years’ imprisonment for each felony-firearm conviction. The trial court
sentenced Watkins to 15 to 60 years’ imprisonment for his armed robbery conviction. Both
defendants appeal as of right. In Docket No. 321344, we affirm defendant McCray’s
convictions. In Docket No. 321722, we affirm defendant Watkins’s convictions, but remand for
further proceedings consistent with this opinion.

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       Defendants’ convictions arise from the robbery and shooting death of Donnie Clark on
November 1, 2012, in Pontiac. According to witness testimony, which was supported by video
footage from several locations, the two defendants robbed 51-year-old Clark of between $600
and $700 after he cashed a government check. Clark was shot at least four times during the
robbery. Eyewitness testimony linked both defendants to the victim before he cashed his
government check and during the actual robbery, and the evidence pointed to McCray as the
person who shot and robbed the victim while Watkins stood nearby. The prosecution also
presented evidence that McCray was in possession of a large sum of money shortly after the
offense was committed, and that McCray admitted to his girlfriend that he had killed someone
during a robbery.

                     I. DOCKET NO. 321344 (DEFENDANT MCCRAY)

       McCray first argues that he is entitled to a new trial because the investigating officer
impermissibly invaded the province of the jury by identifying McCray and describing his actions
in surveillance video footage played at trial. We disagree that McCray is entitled to a new trial
on this basis. McCray concedes that he failed to object to this claim of error at trial.
Accordingly, we review for plain error affecting defendant’s substantial rights, which requires a
showing that “the error affected the outcome of the lower court proceedings.” People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).

        Lay opinion testimony, such as that at issue here, is permitted pursuant to MRE 701
provided the opinions or inferences are limited to those “(a) rationally based on the perception of
the witness, [and] (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue[.]” MRE 701. In People v Fomby, 300 Mich App 46; 831 NW2d
887 (2013), this Court considered whether a certified video forensic technician could comment
on video evidence and determined the testimony was “properly admitted as lay opinion
testimony under MRE 701.” Id. at 48, 50. However, a lay witness “cannot express an opinion
on the defendant’s guilt or innocence of the charged offense.” Id. at 53 (citation omitted).

        Defendant objects to the investigating officer’s testimony describing McCray’s actions in
the surveillance video and the officer’s identification of McCray in the video. We disagree that
the officer’s depiction of the events in the video was improper. The testimony was rationally
based on the officer’s perception of the video, and helpful to the jury’s understanding of the
evidence. MRE 701. However, the issue of whether a defendant is the same person depicted in
surveillance video footage is generally a determination properly left to the jury when the witness
is in no better position than the jury to identify a defendant in the video. See Fomby, 300 Mich
App at 52-53. Thus, we agree that the officer improperly identified McCray in the video.

        However, McCray cannot show that this error affected his substantial rights.
Significantly, McCray’s identity as the person depicted in the video at issue was not seriously
disputed at the time of the officer’s testimony. As noted by the prosecution, McCray never
disputed that he was present during the robbery and shooting. Rather, his theory was that
Watkins was the principal behind the crimes. In addition, the primary purpose of the officer’s
testimony was to explain the events depicted, not to establish the defendants’ identities. The
prosecutor prefaced the officer’s testimony by pointing out that previous witness testimony had
established defendants’ identities in the video. The officer’s identification testimony was brief,

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and the officer admitted that the video did not clearly depict the identities of the individuals in
the video. Finally, McCray’s identification was not dependent on the officer’s testimony
because the evidence against McCray was overwhelming. By the time of the officer’s testimony,
which was presented near the end of the prosecution’s case, there was substantial testimony
linking McCray to the victim and the crime. The evidence included additional unchallenged
video footage, eyewitness testimony linking both defendants to the victim shortly before the
robbery, an eyewitness’s testimony identifying a person who matched McCray’s description as
the person pointing the gun at the victim, another eyewitness’s testimony also identifying a
person matching McCray’s description as the person holding and firing the gun and then
removing something from the victim’s body, a witness’s testimony that McCray was in
possession of a large amount of money when McCray appeared at the witness’s house shortly
after the offense was committed, and the testimony of McCray’s girlfriend, who stated that
McCray admitted that he had killed someone during a robbery. In light of this evidence, any
error related to the investigating officer’s testimony did not affect the outcome of the trial and,
accordingly, did not affect McCray’s substantial rights. Carines, 460 Mich at 763.

         McCray next argues that he is entitled to a new trial because his due process right to
confront witnesses was violated when prejudicial, hearsay evidence was admitted against him
and the declarant failed to testify. We disagree that McCray is entitled to a new trial for this
reason. Generally, we review constitutional issues de novo. People v Fackelman, 489 Mich 515,
524; 802 NW2d 552 (2011). However, McCray admittedly failed to object to the claimed error
at trial. Thus, we review for plain error affecting defendant’s substantial rights. Carines, 460
Mich at 763-764.

        At trial, the investigating officer testified that when he went to speak with a testifying
witness who met defendants shortly after the robbery, he also spoke with the witness’ non-
testifying mother, who not only stated that two men had visited the home, but identified McCray
as one of those men from a photograph. McCray argues that the non-testifying witness’s
statements were inadmissible hearsay and violated his constitutional right to confrontation.

         Hearsay is an “extrajudicial statement offered into evidence to prove the truth of the
matter asserted.” People v McLaughlin, 258 Mich App 635, 651; 672 NW2d 860 (2003); MRE
801(c). “Hearsay evidence is not admissible except as provided by the rules of evidence.”
McLaughlin, 258 Mich App at 651; MRE 802. “Controversies over the admission of hearsay
statements may also implicate the Confrontation Clause, US Const Am VI, which guarantees a
criminal defendant the right to confront the witnesses against him or her. See also Const 1963,
art 1, § 20.” People v Dendel, 289 Mich App 445, 452-453; 797 NW2d 645 (2010). The
Confrontation Clause prohibits the admission of out-of-court testimonial statements unless the
declarant is unavailable at trial and the defendant had a prior opportunity for cross-examination.
Id., citing Crawford v Washington, 541 US 36, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004).
         Here, we agree with McCray that error occurred. The officer’s testimony was
inadmissible hearsay, and the non-testifying declarant did not testify. We reject the
prosecution’s claim that the evidence was not admitted to show the truth of the matter asserted.
Statements not offered to prove the truth of the matter asserted are not considered hearsay, and,
thus, not barred by the Confrontation Clause. People v Chambers, 277 Mich App 1, 10–11; 742
NW2d 610 (2007); MRE 801(c). The prosecution asserts that the evidence was presented to
provide context to the officers’ investigation of the crime. However, even if the evidence could

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be viewed as providing motivation for the officer’s next step in the investigation, we agree that
the officer’s testimony that the non-testifying witness positively identified McCray from his
photograph was used for the truth of the matter asserted—namely, to show that McCray was the
person identified as having been present in the home, a fact that was called into question during
an earlier witness’s testimony. Accordingly, the admission of this testimony constituted error.

        However, again, this error did not affect McCray’s substantial rights because there was
no basis for concluding that it affected the outcome of the proceedings. Carines, 460 Mich at
763. The non-testifying witness did not possess or provide any information regarding the
commission of the offense itself. Moreover, as previously discussed, the evidence against
McCray was overwhelming, and included unchallenged video footage, eyewitness testimony
linking McCray to the victim both before and during the offense, and McCray’s admission that
he had killed someone during a robbery. Accordingly, McCray is not entitled to relief.

                     II. DOCKET NO. 321772 (DEFENDANT WATKINS)

        Defendant Watkins argues that the trial court committed reversible error by failing to
give the ABA standard deadlocked jury instruction, CJI2d 3.12, after the jury indicated that it
was not able to reach unanimous decision on count 2, the armed robbery charge. Instead, after
the court clarified that the jury had not yet reached a verdict with respect to count 1, it instructed
the jury to “[k]eep deliberating.” Because Watkins did not request the standard deadlocked jury
instruction or object to the instruction given, this issue is unpreserved. People v Cameron, 291
Mich App 599, 617; 806 NW2d 371 (2011). We review an unpreserved claim of instructional
error for plain error affecting substantial rights. Carines, 460 Mich at 763-764; People v Martin,
271 Mich App 280, 353; 721 NW2d 815 (2006).

        Our Supreme Court has sanctioned proper jury instructions governing juror deliberations
and held that “substantial departures from the ABA standard instruction would be reversible
error.” People v Pollick, 448 Mich 376, 383; 531 NW2d 159 (1995) (internal quotation marks
and citation omitted). See also People v Sullivan, 392 Mich 324, 220 NW2d 441 (1974).
However, not all deviations are so substantial as to require a remedy. “[T]he test for determining
whether instructional language substantially departs from the ABA standard is whether the
instruction is unduly coercive, not whether the circuit court used words that match the words in
the ABA standard[.]” Pollick, 448 Mich at 383. Thus, this Court should review the instruction
and decide whether “the instruction given [could] cause a juror to abandon his conscientious
dissent and defer to the majority solely for the sake of reaching agreement[.]” Id. at 384, quoting
People v Hardin, 421 Mich 296, 314; 365 NW2d 101 (1984).

       The supplemental jury instruction given in this case is almost identical to the instruction
given to the jury of a codefendant in People v France, 436 Mich 138, 148, 165-166; 461 NW2d
621 (1990) (the jury was instructed to “[c]ontinue your deliberations.”). In France, the Court
held that this instruction did not “require or threaten to require the jury to deliberate for an
unreasonable time or for unreasonable intervals,” and, accordingly, did not constitute a
substantial deviation from the ABA standard deadlocked jury instruction. Id. at 165-166. As in
France, the trial court here did not threaten to require deliberations of unreasonable length, it did
not suggest that the jurors had a civic duty to reach a verdict, and nothing in the court’s response
would cause a juror to abandon his or her dissent. See id.; see also Pollick, 448 Mich at 384-385.

                                                 -4-
Accordingly, Watkins has not shown plain error and, therefore, is not entitled to relief. In
addition, we further reject Watkins’s alternative claim that his defense counsel was ineffective
for failing to object to the trial court’s failure to give the ABA standard deadlocked jury
instruction, see People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013), because counsel is
not ineffective for failing to raise a meritless argument. People v Ericksen, 288 Mich App 192,
201; 793 NW2d 120 (2010).

       Defendant Watkins next argues that he is entitled to resentencing because the trial court
engaged in impermissible judicial fact-finding to score the sentencing guidelines, contrary to
Alleyne v United States, 570 US___; 133 S Ct 2151; 186 L Ed 2d 314 (2013). Because Watkins
did not object to the scoring of the guidelines at sentencing on the basis of Alleyne, this issue is
unpreserved and appellate review is limited to plain error affecting substantial rights.1 People v
Lockridge, ___ Mich ___, ___; ___ NW2d ___ (2015) (Docket No. 149073); slip op at 30.

        In Alleyne, 133 S Ct at 2159, 2163, the United States Supreme Court held that because
“mandatory minimum sentences increase the penalty for a crime,” any fact that increases the
mandatory minimum is an “element” that must “be submitted to the jury and found beyond a
reasonable doubt.” In Lockridge, ___ Mich at ___; slip op at 1-2, our Supreme Court held that
Michigan’s sentencing guidelines are constitutionally deficient under Alleyne to the extent that
“the guidelines require judicial fact-findings beyond facts admitted by the defendant or found by
the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne.” To remedy
the constitutional violation, the Court severed MCL 769.34(2) to the extent that it makes the
sentencing guidelines, as scored based on facts beyond those admitted by the defendant or found
by the jury, mandatory. Id. at ___; slip op at 3. The Court explained that a sentencing court
must still score the guidelines to determine the applicable guidelines range, but a guidelines
range calculated in violation Alleyne is now advisory only. Id. at ___; slip op at 3.

        Watkins received a total of 145 offense variable points, placing him in OV Level VI
(100+ points) on the applicable sentencing grid. MCL 777.62. This guidelines range was based
on the scoring of OVs 1, 2, 3, and 10. The trial court scored 25 points for OV 1 (firearm
discharged at or toward a human being), MCL 777.31(1)(a), 5 points for OV 2 (offender used a
pistol, rifle, or shotgun), MCL 777.32(1)(d), 100 points for OV 3 (a victim was killed), MCL
777.33(1), and 15 points for OV 10 (exploitation of a vulnerable victim and predatory conduct
was involved), MCL 777.40(10(a). Pursuant to the relevant statutes, OsV 1, 2, and 3 provide
that in multiple offender situations, if one offender is assessed points for an OV, all offenders



1
  We disagree with plaintiff’s argument that defense counsel affirmatively waived this issue by
conceding at sentencing that the guidelines were properly scored. “Waiver has been defined as
the intentional relinquishment or abandonment of a known right.” People v Carter, 462 Mich
206, 215; 612 NW2d 144, 148 (2000) (citation and internal quotations omitted). While counsel’s
concession may be viewed as having waived any claim challenging whether the offense variables
were supported by a preponderance of the evidence, we do not agree that his statements likewise
constituted an admission relating to Watkins’s constitutional rights pursuant to Alleyne.


                                                -5-
shall be assessed the same number of points. MCL 777.31(2)(b); MCL 777.32(2); MCL
777.33(2)(a). Accordingly, the sentencing court scored these variables consistent with how they
were scored in codefendant McCray’s case.

        However, because Watkins was acquitted of felony murder by a separate jury, and his
jury did not make the necessary findings to support the scored OVs, the scoring of these
variables may not be upheld on the basis of facts found by the jury. Further, Watkins made no
admissions sufficient to establish these variables. Therefore, the “facts admitted by defendant or
found by the jury verdict were insufficient to assess the minimum number of OV points
necessary for the defendant’s score to fall in the cell of the sentencing grid under which he [] was
sentenced[,]” resulting in a violation of defendant’s Sixth Amendment rights. Lockridge, ___
Mich at ___; slip op at 32. This violation constitutes plain error, as Watkins’s sentence was not
subject to an upward departure. Id. at __; slip op at 32-33. The Lockridge Court explained that
the appropriate remedy is a Crosby2 remand to the trial court for a determination whether the
court would have imposed a materially different sentence but for the constitutional error. Id. at
___; slip op at 34. “If the trial court determines that the answer to that question is yes, the court
shall order resentencing.” Id. at ___; slip op at 34.

       In Docket No. 321344, we affirm defendant McCray’s convictions. In Docket No.
321772, we affirm defendant Watkins’s convictions, but remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.

                                                              /s/ Karen M. Fort Hood
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Kirsten Frank Kelly




2
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).


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