                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 23, 2016
               Plaintiff-Appellee,

v                                                                    No. 324365
                                                                     Washtenaw Circuit Court
DION TERRELL WADE,                                                   LC No. 14-000180-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

       Defendant, Dion Terrell Wade, appeals by right his jury convictions of carjacking, MCL
750.529a, and unarmed robbery, MCL 750.530. The trial court sentenced Wade as a fourth-
habitual offender, MCL 769.12, to serve concurrent prison terms of 210 to 540 months for each
conviction. For the reasons more fully explained below, we affirm.

         Antoine Montu testified that he offered to give three pedestrians—Wade, Cameron Hall,
and Quintez Gardner—a ride. Wade got into the front passenger seat while the other two men
sat in the back. The men asked Montu to drive them to a local market, and he did. After leaving
the market, Montu agreed to drive them home. Wade directed Montu to an area near a UPS
building and told him to turn the car around and stop. As Wade thanked Montu for the ride,
Gardner grabbed Montu’s neck and punched him. Wade then searched the car and took Montu’s
cell phone and GPS unit. Hall got out and opened the driver’s door; he then searched Montu and
took his wallet. When Montu finally got away, he saw Wade flee on foot while Hall and
Gardner drove away in his car.

        An officer stopped Gardner and Hall in a different vehicle. Officers found Montu’s
driver’s license, credit card, and debit card in the car. Officers later discovered that Gardner was
in possession of Montu’s key. Officers reviewed the recordings from the cameras at the market
to help identify the men involved. Eventually, officers arrested Wade for involvement in the
carjacking and robbery.

         Wade first contends that the trial court erred when it refused to allow his trial lawyer to
elicit testimony about statements made by third-parties on the ground that the statements would
be hearsay. This Court reviews a trial court’s decision concerning the admission of evidence for
an abuse of discretion. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001). “A trial
court abuses its discretion when its decision falls outside the range of reasonable and principled
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outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). “However,
where decisions regarding the admission of evidence involve preliminary questions of law such
as whether a rule of evidence or statute precludes admissibility, our review is de novo.” Layher,
464 Mich at 761.

        Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
“Hearsay is generally prohibited and may only be admitted at trial if provided for in an exception
to the hearsay rule.” People v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010), see also MRE
802. Exceptions to the hearsay rule are divided into those where the declarant is unavailable,
MRE 804, and those where the availability of the declarant is immaterial, MRE 803.

        The trial court sustained a hearsay objection when Wade’s trial lawyer attempted to
question an officer about statements that Gardner made. The court took judicial notice that
Gardner and Hall were unavailable because they were codefendants and still had pending cases.
Wade contends that these evidentiary rulings prevented him from showing that Gardner told the
officer that a man named Paul Wilson was involved. Wade argues that Gardner was actually
available, and even if he were unavailable, his statement would have been admissible as a
statement against interest.

       A statement against interest is admissible if the declarant is unavailable:

       A statement which was at the time of its making so far contrary to the declarant’s
       pecuniary or proprietary interest, or so far tended to subject the declarant to civil
       or criminal liability, or to render invalid a claim by the declarant against another,
       that a reasonable person in the declarant’s position would not have made the
       statement unless believing it to be true. [MRE 804(b)(3).]

         Here, Gardner allegedly told an officer that he and Paul Wilson were the carjackers.
Such a statement was clearly against Gardner’s interest because it subjected him to criminal
liability. However, the statement was still inadmissible; when a hearsay statement is offered to
exculpate the accused, the corroborating circumstances must “clearly indicate the trustworthiness
of the statement.” MRE 804(b)(3). Montu identified Wade as one of the three men involved,
and he identified the other two men as Hall and Gardner. He never indicated that another person
was involved. Montu’s identification was further corroborated by the surveillance video from
the market, which was shown to the jury. It was undisputed that it showed Gardner, Hall, Wade,
and Montu in the market together shortly before the carjacking. Finally, even Wade admits in
his brief on appeal that Gardner retracted his statement and implicated Wade and Hall at his plea
hearing. Thus, Gardner’s statement lacked the indicia of trustworthiness required for admission
as a statement against interest offered to exculpate the accused. Id.

        The court also prevented Wade’s lawyer from asking an officer about statements that a
suspect made to the officer. Wade maintains that the suspect’s statement about depositing
money into Gardner’s bank account should have been admissible as a statement against penal
interest. However, standing alone, the statement does not harm his pecuniary or proprietary
interests, nor does it “subject him to civil or criminal liability.” MRE 804(b)(3). Consequently,
the statement does not fall within the exception.

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        Wade also argues that the trial court erred by taking judicial notice that Gardner was
unavailable to testify.1 A witness is unavailable to testify, in relevant part, when the declarant “is
exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of the declarant’s statement.” MRE 804(a). As such, a witness is unavailable for the
purposes of MRE 804(a) if the witness cites the Fifth Amendment as a justification for not
testifying. People v Meredith, 459 Mich 62, 66; 586 NW2d 538 (1998).

        Wade contends that Gardner was unprotected by the Fifth Amendment privilege against
self-incrimination because he already incriminated himself by pleading guilty, and he was
awaiting sentencing. However, a defendant that awaits sentencing after pleading guilty may still
invoke the Fifth Amendment’s protection against self-incrimination. Mitchell v United States,
526 US 314, 327; 119 S Ct 1307; 143 L Ed 2d 424 (1999).

        We also reject Wade’s argument that the trial court erred by assuming that Gardner
would assert his privilege. Even if Gardner had been available, Wade has not specified on
appeal what hearsay exception would apply to Gardner’s statement. He simply asserts that the
trial court erred by finding the witness to be unavailable. This is insufficient to establish error
warranting relief. “It is not enough for an appellant in his brief simply to announce a position or
assert an error and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for authority either to
sustain or reject his position.” Mitcham v City of Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959).

       In any event, even if it were error for the trial court to exclude the statement, the error
would be harmless. See People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). Montu’s
testimony plainly contradicted Gardner’s statement, and Wade admits that Gardner retracted it
and implicated Hall and Wade at his plea hearing. Further, the suspect’s statement about placing
money in Gardner’s bank account is unrelated to Wade’s guilt or innocence. Thus, any alleged
evidentiary error in these matters was not outcome determinative. Id.

        Wade finally maintains that the trial court improperly punished him for exercising his
right to a jury trial by giving him a longer sentence than given to his co-defendants who pleaded
guilty. “A sentencing court cannot base its sentence on a defendant’s decision to exercise his
constitutional right to a jury trial.” People v Brown, 294 Mich App 377, 389; 811 NW2d 531
(2011). However, it is not per se unconstitutional when a defendant receives a higher sentence
following a trial than he would have received from a plea. Id.

        Wade stated his concern that he was being punished for going to trial at sentencing and
the trial court addressed it. Contrary to Wade’s argument, the court’s statements did not offer


1
  Wade takes issue with the trial court’s determination that both Gardner and Hall were
unavailable, but only addresses Gardner. Therefore, we limit our discussion accordingly.
Additionally, Wade argues that it is problematic that there was no explanation as to how the
suspect was unavailable. However, the trial court only ruled that the statement was hearsay; it
did not specifically rule that the suspect was unavailable.


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any indication that it imposed the sentence to penalize Wade for exercising his right to trial by
jury. Instead, the court’s statement reflected the obvious fact that it listened to trial testimony,
which provided the court with more information about the crime than it would otherwise have if
Wade had pleaded guilty and the factual record was abbreviated. Additionally, the court
explained that the codefendants had pleaded to only one charge, whereas the jury convicted
Wade of both charges. Wade was also subject to the enhancements for a fourth habitual
offender. We further note that Wade’s minimum sentence was within the guideline range, and
the trial court declined to exercise its discretion to impose consecutive sentences. On the totality
of the record, there is no evidence that the trial court imposed a harsher sentence to punish Wade
for exercising his right to a jury trial.

       There were no errors warranting relief.

       Affirmed.

                                                             /s/ Joel P. Hoekstra
                                                             /s/ Patrick M. Meter
                                                             /s/ Michael J. Kelly




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