                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 19, 2018
               Plaintiff-Appellee,

v                                                                   No. 335366
                                                                    Alpena Circuit Court
CHRISTOPHER ANDREW TANK,                                            LC No. 15-006912-FC

               Defendant-Appellant.


Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right his jury convictions of first-degree premeditated murder,
MCL 750.316(1)(a), discharge of a firearm from a vehicle, MCL 750.234a, carrying a concealed
weapon (CCW), MCL 750.227, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. The trial court sentenced defendant to life imprisonment
without parole for the murder conviction, life imprisonment for the discharge of a firearm
conviction, and two to five years’ imprisonment for the CCW conviction, those sentences to be
served concurrently, but consecutive to a two-year term of imprisonment for the felony-firearm
conviction. We affirm.

        The jury convicted defendant of murdering Robert Arch outside Arch’s home on May 13,
2015. Defendant and the victim were formerly friends, but their relationship had become
strained. The victim’s girlfriend, Stacy Phillips, had known defendant since junior high school,
and she briefly dated defendant’s brother. The victim had fathered a son with defendant’s sister,
and the victim had recently obtained a favorable ruling in a custody dispute with defendant’s
sister.

         On May 13, defendant confronted the victim outside the victim’s home. The victim told
defendant that he was not welcome and asked him to leave. As the victim approached
defendant’s vehicle, defendant sped off in his car, a small, green foreign vehicle. Approximately
20 to 30 minutes later, the victim looked outside his kitchen window and told Phillips that
defendant had returned. The victim went outside and then Phillips heard a noise that sounded
like fireworks. Phillips testified that she went outside the front door and saw defendant shoot the
victim. According to Phillips, defendant, who was seated in the driver’s seat, reached across the
passenger side of the vehicle, and fired a gun through the open passenger window. Defendant


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was the only person inside the vehicle. After the victim was shot, he turned around and told
Phillips: “Call the cops. Tell them it was Chris Tank.” Defendant then sped away in his vehicle.

        A 10-year-old witness testified that she saw a man in a green car pull up to the victim’s
home and shoot another man multiple times before driving away. She said there was only one
person inside the car. Another witness, however, testified that there were two men in the car and
it was the passenger who fired the gun.

        A responding paramedic testified that while treating the victim at the scene, he asked the
victim “Who did this?” and the victim replied, “Tank.” Later that day, the police stopped
defendant’s vehicle, a green Subaru Legacy, on M-65 as it was headed out of town. The police
discovered a .45 Colt pistol with an empty magazine inside the glove box of defendant’s car. A
spent shell casing was discovered behind the driver’s seat. A backpack containing clothing and a
loaded handgun magazine was lying on the front passenger seat. Additional pieces of luggage
were in the back seat. A firearm’s expert later matched two shell casings and a bullet fragment
found at the scene to defendant’s gun. An officer also observed an apparent bullet hole through
the passenger side-view mirror of defendant’s car. John Lucey, a forensic scientist with the
Michigan State Police crime lab, was qualified as an expert in the field of fracture match
principles. Lucey testified that pieces of black plastic recovered at the scene could be matched to
the damaged housing unit of the side-view mirror of defendant’s vehicle. The defense theory at
trial was that a second person in defendant’s vehicle shot the victim.

                                  I. DYING DECLARATION

        Defendant first argues that his constitutional right of confrontation was violated by the
admission of the paramedic’s testimony that, in response to the paramedic’s inquiry, the victim
said he was shot by “Tank.” Defendant acknowledges that this constitutional issue was not
raised below. Therefore, the issue is unpreserved and review is limited to plain error affecting
defendant’s substantial rights. People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011).
Defendant further argues, however, that defense counsel was ineffective for failing to raise an
objection based on the Confrontation Clause. To establish ineffective assistance of counsel,
defendant must show that: (1) counsel’s representation “fell below an objective standard of
reasonableness”; and (2) but for counsel’s deficient performance, there is a reasonable
probability that the outcome of the proceeding would have been different. People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012).

       Defendant acknowledges that the victim’s statement to the paramedic qualifies as a
“dying declaration” under MRE 804(b)(2). He argues, however, that the statement qualifies as
“testimonial,” and therefore, its admission violated his Sixth Amendment right of confrontation.
US Const, Am VI; Const 1963, art 1, § 20. We disagree, because “dying declarations are
admissible as an historical exception to the Confrontation Clause.” People v Taylor, 275 Mich
App 177, 183; 737 NW2d 790 (2007).

        Defendant cites Michigan v Bryant, 562 US 344; 131 S Ct 1143; 179 L Ed 2d 93 (2011),
in support of his argument that dying declarations are not admissible unless they are
nontestimonial. In that case, however, the Supreme Court acknowledged the historical-exception
thesis proposed in Crawford v Washington, 541 US 36, 56 n 6; 124 S Ct 1354, 1364; 158 L Ed

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2d 177 (2004), but noted that the state had failed to preserve its argument with regard to dying
declarations, and therefore, it expressly declined to “decide that question here.” Bryant, 562 US
at 351 n 1. Thus, Bryant does not repudiate this Court’s holding in Taylor that dying
declarations are admissible as an historical exception to the Confrontation Clause. Accordingly,
there was no plain error in admitting the victim’s dying declaration identifying defendant as his
assailant. Further, because the statement was admissible without violating the Confrontation
Clause, defense counsel was not ineffective for failing to object on that ground. Counsel is not
ineffective for failing to raise a meritless objection. People v Collins, 298 Mich App 458, 470;
828 NW2d 392 (2012).

                                    II. EXPERT TESTIMONY

       Defendant next argues that the trial court erred when it permitted the prosecution’s
witness, Lucey, to offer expert testimony regarding “fracture match” principles to show that
pieces of plastic found at the scene matched defendant’s broken passenger side-view mirror.
“[T]he determination regarding the qualification of an expert and the admissibility of expert
testimony is within the trial court's discretion.” People v Murray, 234 Mich App 46, 52; 593
NW2d 690 (1999).

       MRE 702, which governs the admissibility of expert testimony, provides:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

MRE 702 requires “a court evaluating proposed expert testimony [to] ensure that the testimony
(1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified
in the relevant field of knowledge, and (3) is based on reliable data, principles, and
methodologies that are applied reliably to the facts of the case.” People v Kowalski, 492 Mich
106, 120; 821 NW2d 14 (2012). All three of these requirements must be met to permit the use of
the testimony. Id. at 120-121. However, the reliability inquiry is a flexible one and must be tied
to the facts of the particular case; thus, factors for determining reliability may differ depending
on the type of expert testimony offered, as well as the facts of the case. Kumho Tire Co v
Carmichael, 526 US 137, 150; 119 S Ct 1167; 143 L Ed 2d 238 (1999); Daubert v Merrell Dow
Pharm, Inc, 509 US 579, 591; 113 S Ct 2786; 125 L Ed 2d 469 (1993); Kowalski, 492 Mich at
120. In this case, defendant challenges whether Lucey’s fracture match testimony was based on
reliable scientific principles and methods, as well as Lucey’s qualifications to offer such
testimony.

        During preliminary questioning, Lucey explained that the discipline of fracture match
involved determining whether an object had been broken and, if so, observing whether the pieces
could be fitted back together to determine whether they were a part of the same object. He stated
that fracture matching was “much like a lock and key fit or a jigsaw puzzle type of thing,” much

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like putting pieces of a broken vase back together. We are satisfied that the trial court did not
abuse its discretion in admitting Lucey’s testimony. Although Lucey did not cite any published
articles on fracture match analysis, he testified that there were research and scientific papers
discussing the subject. Moreover, he stated that his knowledge of fracture match principles came
from both training in the laboratory and from having gone to “fracture match school.” He had
previously been qualified to provide fracture match testimony in other cases. Defendant has not
identified any case in which a court refused to recognize the reliability of fracture match
analysis. We conclude that the trial court did not abuse its discretion in admitting Lucey’s
fracture match testimony.

         Furthermore, even if the trial court erred in admitting the testimony, the error was
harmless. A preserved, nonconstitutional error is presumed to be harmless “unless ‘after an
examination of the entire cause, it shall affirmatively appear’ that it is more probable than not
that the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d
607 (1999), quoting MCL 769.26. “[T]he effect of the error is evaluated by assessing it in the
context of the untainted evidence to determine whether it is more probable than not that a
different outcome would have resulted without the error.” Id. at 495. Defendant argues that
Lucey’s testimony was “the strongest piece of testimony” to refute the main defense theory that
“there was a second person who shot from the passenger seat” who killed the victim. We
disagree. Lucey’s testimony merely served to link defendant’s vehicle to the shooting. Lucey
testified that black pieces of plastic recovered at the scene could be matched as portions of the
damaged housing unit of the passenger-side mirror on defendant’s Subaru. However, witnesses
consistently described the shooter’s vehicle as matching the description of defendant’s vehicle,
Phillips expressly identified defendant as the shooter, and ballistics evidence established that the
gun recovered from defendant’s vehicle was used to shoot the victim. In addition, at the time of
defendant’s arrest, a police officer observed an apparent bullet hole through the passenger side-
view mirror of defendant’s car. The defense theory at trial was that the victim was shot by a
second person from the passenger seat inside defendant’s car. Lucey’s testimony was not
probative of the number of people inside defendant’s vehicle at the time of the shooting.
Accordingly, it is not more probable than not that a different outcome would have occurred if

                          III. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises two additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, neither of which have merit.

                                   A. DIRECTED VERDICT

       Defendant first argues in his Standard 4 brief that the trial court erred by denying his
motion for a directed verdict of the charge of first-degree premeditated murder. We disagree.

       “In assessing a motion for a directed verdict of acquittal, a trial court must consider the
evidence presented by the prosecution to the time the motion is made[.]” People v Riley (After
Remand), 468 Mich 135, 139; 659 NW2d 611 (2003). In so doing, “we review the evidence in a
light most favorable to the prosecution to determine whether a rational trier of fact could have
found that the essential elements of the crime were proved beyond a reasonable doubt.” People v
Schrauben, 314 Mich App 181, 198; 886 NW2d 173 (2016) (quotations omitted).

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“Circumstantial evidence and reasonable inferences drawn from it may be sufficient to prove the
elements of the crime.” People v Gould, 225 Mich App 79, 86; 570 NW2d 140 (1997).

        “Before a defendant may be convicted of first-degree [premeditated] murder, the
prosecution must prove that the defendant intentionally killed the victim and that the act of
killing was premeditated and deliberate.” People v Schollaert, 194 Mich App 158, 170; 486
NW2d 312 (1992). Defendant challenges the trial court’s determination that the prosecutor
presented sufficient evidence of premeditation. “[B]ecause it can be difficult to prove a
defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, which can be inferred from all
the evidence presented.” People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). In
People v Oros, 320 Mich App 146, 154-155; 904 NW2d 209 (2017), oral argument gtd on the
application 501 Mich 883 (2107), this Court observed:

               To “premeditate” means “to think about beforehand.” People v Morrin,
       31 Mich App 301, 329, 187 NW2d 434 (1971). Merriam-Webster’s Collegiate
       Dictionary (11th ed.) defines “premeditate” as “to think about and revolve in the
       mind beforehand[.]” Black’s Law Dictionary (10th ed.) defines “premeditation”
       as “[c]onscious consideration and planning that precedes an act (such as
       committing a crime); the pondering of an action before carrying it out.”
       Premeditation can be proved through circumstantial evidence; however,
       inferences may “not be arrived at by mere speculation.” People v O’Brien, 89
       Mich App 704, 710, 282 NW2d 190 (1979). The prosecution may establish
       premeditation and deliberation through evidence of (1) the parties’ prior
       relationship, (2) the defendant’s actions before the killing, (3) the circumstances
       surrounding the killing itself, and (4) the defendant’s conduct after the killing.
       People v Schollaert, 194 Mich App 158, 170; 486 NW2d 312 (1992). [Footnote
       omitted.]

In addition, this Court has noted that “premeditation and deliberation require sufficient time to
allow the defendant to take a second look.” Schollaert, 194 Mich App at 170.

        The evidence in this case was sufficient to support a finding of premeditation. Testimony
was presented that defendant and the victim knew each other, but had recently become estranged,
ostensibly because of defendant’s conduct toward the victim’s girlfriend or the victim’s custody
battle with defendant’s sister. Testimony was also presented of defendant’s recent hostile
encounters with the victim at the victim’s home. Such evidence may support an inference of
premeditation. In addition, defendant visited the victim’s home and was involved in an
altercation with the victim approximately 20 minutes before the shooting. The evidence
indicated that defendant left the victim’s house, returned 20 minutes later, and immediately shot
the unarmed victim before driving off and leaving town. The jury could find from this evidence
that defendant formed an intent to kill the victim, went home to obtain a gun and pack some
clothing, returned to the victim’s home intending to kill him, shot the victim, and then left town.
Although defendant presents alternative reasons for why he would have his belongings in his car
with him as he fled, the trial court was required to view the evidence in a light most favorable to
the prosecution. A reasonable jury could have found that defendant had already packed and
placed his belongings in his car when he shot the victim as part of a preconceived plan to kill the

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victim and leave town. The trial court did not err in denying defendant’s motion for a directed
verdict.

                           B. PSYCHOLOGICAL EVALUATION

       Defendant next argues in his Standard 4 brief that the trial court erred by denying his
request for an independent psychological evaluation under MCL 768.20(a)(3). We disagree.
This Court reviews a trial court’s decision whether to grant an indigent defendant’s motion for
the appointment of an expert witness for an abuse of discretion. People v Carnicom, 272 Mich
App 614, 616; 727 NW2d 399 (2006).

        Defendant was entitled to an independent psychiatric evaluation only upon a showing of
good cause. MCL 768.20a(3). At defense counsel’s request, defendant was examined twice by a
doctor at the Center for Forensic Psychiatry. Defendant does not discuss either of the resulting
psychological reports, but merely asserts that “health records showing that [defendant] was
diagnosed with general anxiety and ADHD in the months before the shooting” were provided
before the second evaluation. However, “[m]ental illness or having an intellectual disability
does not otherwise constitute a defense of legal insanity.” MCL 768.21a(1). Defendant has not,
either below or on appeal, presented anything to suggest that he could raise even a colorable
claim of insanity. There is no basis for concluding that defendant established good cause for an
independent psychiatric evaluation. Accordingly, the trial court did not abuse its discretion by
denying defendant’s motion for an independent psychiatric evaluation.

       Affirmed.


                                                           /s/ William B. Murphy
                                                           /s/ Kathleen Jansen
                                                           /s/ Brock A. Swartzle




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