                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 22, 2015
               Plaintiff-Appellee,

v                                                                   No. 318727
                                                                    Wayne Circuit Court
TORREAN JAQUAN BUCHANAN,                                            LC No. 11-005619-FC

               Defendant-Appellant.


Before: SERVITTO, P.J., and WILDER and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of carjacking, MCL 750.529a;
assault with intent to rob while armed, MCL 750.89; possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b; and two counts of assault with intent
to do great bodily harm less than murder, MCL 750.84. The trial court sentenced defendant to
10 to 20 years’ imprisonment for the carjacking conviction, 10 to 20 years’ imprisonment for the
assault with intent to rob while armed conviction, two years’ imprisonment for the felony-
firearm conviction, and 5 to 10 years’ imprisonment for each of the assault with intent to do great
bodily harm convictions. We affirm.

        On the evening of January 16, 2011, Angela Sammons parked her car in her driveway
after returning home from work. As she opened the door to get out, two men wearing black
neoprene masks and armed with guns approached her. Angela shut her door and locked the
vehicle. One of the men stood at the driver’s side of her car, and the other man stood at the
passenger side. They each pulled on the door handles and yelled for Angela to get out of the car.

       During the incident, Angela’s husband, Carl Sammons, opened the front door of the
house, and Angela heard gunshots. Carl was shot in the abdomen. At this point, the men began
to back away from Angela’s car, and eventually drove off.

       Angela testified that the man who approached the driver’s side of her car pulled his mask
down during the incident, exposing his entire face. At trial, Angela identified defendant as the
man who approached the passenger side of her car. She testified that, although defendant never
pulled his mask down, the mask covered only the bottom of his face and she could see his eyes,
forehead, and hair. She looked directly at his face as he approached her car.



                                                -1-
        Approximately three or four days after the incident, Angela went to check her e-mail on
her phone, but the Channel 4 WDIV webpage that she set as her homepage came up first. The
top news story on the page displayed a picture of the two individuals who tried to rob her.
Angela spoke with Sergeant Jason Marzette of the Detroit Police Department over the phone,
and told him she saw pictures of the two men who tried to rob her on the WDIV website.
Sometime following her conversation with Sergeant Marzette, Officer Deitrick Mott came to her
home with photographs, and showed them to Angela and Carl separately. Angela identified both
men who had been involved in the January 16, 2011, incident (one of whom was defendant) and
Carl identified Lamont Friar as the man that had approached the driver’s side of Angela’s car and
shot him. He never saw the second person that was outside of his home on the night of the
incident.

       Sergeant Marzette testified that he spoke with Angela over the phone regarding the
photographs she saw on the WDIV website. He looked up the news story himself, and printed
the photographs of Friar and defendant that Officer Mott later showed to Angela and Carl. When
asked if the photograph he printed of defendant was the exact same picture from the news story,
Sergeant Marzette said, “It’s the -- I would say it’s the same individual in the same pose.” He
printed the photographs in black and white. On redirect, Sergeant Marzette admitted that the
source he got the photographs from was the same source the newspapers got them from, which
was a law enforcement website.

        Defendant first argues on appeal that the trial court abused its discretion by admitting into
evidence the photographs of defendant and Friar that Officer Mott showed to Angela and Carl,
because neither photograph was relevant to Angela’s identification of defendant. Defense
counsel did not object when the trial court admitted into evidence the photographs of Friar and
defendant that Angela said she saw on the WDIV website, her testimony that the men in the
pictures were the men that approached her vehicle, photographs of defendant Officer Mott
showed her, or the photograph of defendant Officer Mott showed Carl. Defense counsel did,
however, object to the admission of the photograph of Friar shown to her by Officer Mott, and a
photograph of Friar police showed Carl.

        To preserve a claim of evidentiary error, “a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001), citing MRE 103(a)(1) and People v
Grant, 445 Mich 535, 545, 553; 520 NW2d 123 (1994). When an evidentiary issue has been
preserved on appeal, this Court generally reviews the trial court’s decision to admit evidence for
an abuse of discretion, and reviews “de novo preliminary questions of law, such as whether a
rule of evidence precludes admissibility.” People v Chelmicki, 305 Mich App 58, 62; 850 NW2d
612 (2014). “A trial court abuses its discretion when its decision falls ‘outside the range of
principled outcomes.’ ” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010), quoting
People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). “A preserved error in the admission
of evidence does not warrant reversal 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 Burns, 494 Mich 104, 110; 832 NW2d 738 (2013), quoting People v Lukity, 460
Mich 484, 495-496; 596 NW2d 607 (1999) (quotation and citation omitted). This Court reviews
the admission of identification evidence for clear error. People v Harris, 261 Mich App 44, 51;


                                                -2-
680 NW2d 17 (2004). “Clear error exists if the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Id.

        Unpreserved evidentiary claims are reviewed for plain error affecting substantial rights.
Chelmicki, 305 Mich App at 62; MRE 103(d). A plain error affects substantial rights when “the
error affected the outcome of the lower-court proceedings.” People v Jones, 468 Mich 345, 356;
662 NW2d 376 (2003). Reversal is not warranted unless “the plain, unpreserved error resulted in
the conviction of an actually innocent defendant or . . . seriously affected the fairness, integrity,
or public reputation of the judicial proceedings independent of the defendant’s innocence.” Id. at
355.

         Evidence is relevant if it has “any tendency to make the existence of any fact that is of
consequence . . . more probable or less probable than it would be without the evidence.” People
v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003), quoting MRE 401. “[A] material fact need
not be an element of a crime or cause of action or defense but it must, at least, be in issue in the
sense that it is within the range of litigated matters in controversy.” People v Powell, 303 Mich
App 271, 277; 842 NW2d 538 (2013), quoting People v Brooks, 453 Mich 511, 518; 557 NW2d
106 (1996) (citations and quotation marks omitted). Generally, relevant evidence is admissible
at trial while irrelevant evidence is not. MRE 402; People v Benton, 294 Mich App 191, 199;
817 NW2d 599 (2011). Evidence that is relevant may still be excluded if the “probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” MRE 403; see also Feezel, 486 Mich at 198. “Unfair prejudice exists
when there is a tendency that evidence with little probative value will be given too much weight
by the jury.” People v Danto, 294 Mich App 596, 600; 822 NW2d 600 (2011), quoting People v
McGhee, 268 Mich App 600, 614; 709 NW2d 595 (2005).

        Angela’s identification of defendant as the man who approached the passenger side of her
car was the only evidence at trial directly linking defendant to the crimes and, during trial,
defense counsel repeatedly questioned the accuracy of Angela’s identification of defendant. On
cross-examination, for example, defense counsel asked Angela if she described the man’s hair
color, eye color, or facial hair to police. Angela said no. Defense counsel then continued to
question Angela regarding the lack of details she gave to police about defendant’s appearance.
Because Angela’s ability to identify the man was directly at issue, her identification of defendant
from the photograph shown to her by Officer Mott was relevant. It served to make the accuracy
of Angela’s identification of defendant more probable than it would have been without the
evidence. Admission of the photograph itself would verify to the jury that defendant, and not
another individual, was in fact the man in the picture. Further, the probative value of the
evidence was not outweighed by any prejudicial effect Sergeant Marzette’s testimony may have
had. Sergeant Marzette did not testify in front of the jury regarding why defendant’s photograph
may have been on the law enforcement website, and gave no indication that defendant had been
arrested for, or convicted of, any other crimes.

        In addition, the trial court did not abuse its discretion when it admitted into evidence the
photographs of Friar that Officer Mott had showed to Angela and Carl. Angela’s identification
of Friar was relevant because Angela’s ability to identify the man who approached the driver’s
side of her car makes it more probable that she would also be able to identify the man who

                                                -3-
approached the passenger side of her car. Carl’s testimony that he also recognized Friar as the
man who shot him served to bolster Angela’s identification of Friar. Further, contrary to
defendant’s assertion, admission of Friar’s photograph into evidence does not require any
analysis under MRE 404(b) because it could not be considered evidence of other crimes or bad
acts. The fact that the photograph came from a law enforcement website does not make this
evidence more prejudicial than probative. Sergeant Marzette did not testify regarding why
Friar’s photograph may have been on the website.

        In any case, Angela had already testified that she identified Friar and defendant as the
men who approached her car from pictures in a news story she saw on the WDIV website. A
connection between the two could be implied from this testimony. Those pictures were admitted
into evidence with no objection from defense counsel, and Angela said that the pictures shown to
her by Officer Mott were “pretty much” exactly the same as the pictures she saw independently
on the WDIV website.

       Defendant next argues that he is entitled to a new trial because the trial court gave
improper instructions to the deadlocked jury. He asserts that the statements made by the trial
court were unduly coercive. We disagree.

        To preserve an instructional error, a party must object to the instruction. People v
Galloway, 307 Mich App 151, 157; 858 NW2d 520 (2014), citing People v Sabin (On Second
Remand), 242 Mich App 656, 657-658; 620 NW2d 19 (2000); MCR 2.512(C)1. Defendant failed
to preserve this issue because defense counsel did not object to the trial court’s instructions. This
Court has stated, “Absent an objection or request for an instruction, this Court will grant relief
only when necessary to avoid manifest injustice.” Id. This Court reviews unpreserved claims of
instructional error for plain error affecting substantial rights. Aldrich, 246 Mich App at 124-125,
citing People v Carines, 460 Mich 750, 761-764, 774; 597 NW2d 130 (1999).

       In People v Sullivan, 392 Mich 324, 342; 220 NW2d 441 (1974), the Supreme Court
adopted the ABA standard jury instruction 5.4 for a deadlocked jury, and concluded that “[a]ny
substantial departure therefrom shall be grounds for reversible error.” The Michigan Model
Criminal Jury Instructions have incorporated the standard adopted in Sullivan. People v Pollick,
448 Mich 376, 382 n 12; 531 NW2d 159 (1995).

       A trial court’s statements to the jury will amount to a substantial departure from the
appropriate deadlocked jury instructions if those statements are unduly coercive. Galloway, 307


1
    MCR 2.512(C) states:
         A party may assign as error the giving of or the failure to give an instruction only
         if the party objects on the record before the jury retires to consider the verdict (or,
         in the case of instructions given after deliberations have begun, before the jury
         resumes deliberations), stating specifically the matter to which the party objects
         and the grounds for the objection. Opportunity must be given to make the
         objection out of the hearing of the jury.


                                                  -4-
Mich App at 164, citing People v Hardin, 421 Mich 296, 314; 365 NW2d 101 (1984).
Additional language rarely amounts to a substantial departure where such language “contains ‘no
pressure, threats, embarrassing assertions, or other wording that would cause this Court to feel
that it constituted coercion . . . .’ ” Hardin, 421 Mich at 315, quoting People v Holmes, 132
Mich App 730, 749; 349 NW2d 230 (1984). “The optimal instruction will generate discussion
directed towards the resolution of the case but will avoid forcing a decision.” Id. at 316, quoting
Sullivan, 392 Mich at 334. To determine whether an instruction was coercive, this Court may
consider the amount of time the jury continued to deliberate after being given the instruction.
People v Bookout, 111 Mich App 399, 403; 314 NW2d 637 (1981). The instruction should also
be read in context. Hardin, 421 Mich at 321.

        Here, approximately 3 ½ hours into deliberations, the trial court received a note from the
jury asking what would happen if it could not come to a decision. Before reading the deadlocked
jury instruction, M Crim JI2d 3.12, in its entirety, the trial court stated, “This is way too early.
You haven’t even asked for any exhibits, let alone possible read back of testimony. You have to
devote yourself to this. Get yourself immersed in it.” The jury returned to deliberations for
approximately 20 minutes before being excused for the evening.

        No part of the trial court’s statement contained any threats or embarrassing assertions.
The trial court simply asked the jury to take more time for its consideration of the evidence. In
addition, the trial court read the appropriate deadlocked jury instruction, stating that the jurors
should not give up their honest beliefs in order to reach an agreement, after making its initial
statements. Any coercive effect the trial court’s supplemental comments may have had would
have been mitigated by the court’s subsequent reading of the correct instruction. Further,
according to the trial transcripts, the jury continued to deliberate for approximately four hours
the following day, after being given the instruction and before reaching its decision. The trial
court’s statements did not amount to plain error affecting defendant’s substantial rights.

       Finally, defendant argues that the prosecutor committed misconduct in her opening
statement by stating that Friar’s case had already been resolved, and during closing arguments
when she stated facts not in evidence. We disagree.

        In her opening statement, the prosecutor said, “Ladies and gentlemen, the evidence is
going to show that the two individuals, one of them was Lamont Friar who is not here today. His
case -- that's nothing you should be concerned about. That case has already been heard. The
other individual, the evidence will show, is this person, Torrean Buchanan. That’s why we’re
here.” Defendant asserts he is entitled to a new trial because, from this statement, the jury would
assume Friar had been convicted.

        To preserve a claim of prosecutorial misconduct, a defendant must contemporaneously
object to the alleged misconduct and ask for a curative instruction. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). If a defendant fails to timely and specifically object
below, review is generally precluded “except when an objection could not have cured the error,
or a failure to review the issue would result in a miscarriage of justice.” People v Unger, 278
Mich App 210, 234-235; 749 NW2d 272 (2008), quoting People v Callon, 256 Mich App 312,
329; 662 NW2d 501 (2003). Defendant failed to preserve this claim because defense counsel did
not object on the record to the prosecutor’s opening statement.

                                                -5-
        Claims of prosecutorial misconduct that have not been preserved are reviewed for
“outcome-determinative, plain error.” Unger, 278 Mich App at 235. This Court “consider[s]
issues of prosecutorial misconduct on a case-by-case basis by examining the record and
evaluating the remarks in context, and in light of defendant’s arguments.” People v Thomas, 260
Mich App 450, 454; 678 NW2d 631 (2004). “Reversal is warranted only when plain error
resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Unger, 278 Mich App at 235, quoting
Callon, 256 Mich App at 329.

        Defendant’s first claim of prosecutorial misconduct lacks merit, and defendant is not
entitled to a new trial. In general, evidence of a codefendant’s conviction for the same crime the
defendant has been accused of is not admissible in the defendant’s separate trial. People v
Kincade, 162 Mich App 80, 84; 412 NW2d 252 (1987); see also People v Barber, 255 Mich App
288, 297; 659 NW2d 674 (2003).

        Here, the prosecutor did not reveal Friar’s conviction. She only stated that the jury
should not consider Friar’s case because it had already been heard. Further, the trial court
instructed the jury, both before trial and after trial, that the attorneys’ opening statements should
not be considered evidence. Curative instructions will cure most inappropriate prosecutorial
statements, and it is presumed that jurors will follow their instructions. Unger, 278 Mich App at
235.

        Even if the prosecutor’s statements amounted to plain error, reversal is not warranted
here. Angela testified at trial that two men approached her car with guns, and that she identified
both men from pictures in the same news story on the WDIV website. From this testimony, one
would most likely assume that the codefendant had also been charged with the crimes. The
prosecutor’s statement, then, which did not disclose the disposition of Friar’s case, would most
likely not have affected the outcome of defendant’s trial.

        In his Standard 4 brief, defendant argues that the prosecutor committed misconduct when
she stated facts not in evidence during her closing argument. Specifically, she stated that Javon
Knight, defendant’s alibi witness, testified to knowledge of a relationship between Friar and
defendant.

        Defendant preserved this claim on appeal because defense counsel objected to the
prosecutor’s comments on the basis that she argued facts not in evidence. Preserved claims of
prosecutorial misconduct are reviewed de novo to determine if the defendant was denied a fair
and impartial trial. Thomas, 260 Mich App at 453. This Court “consider[s] issues of
prosecutorial misconduct on a case-by-case basis by examining the record and evaluating the
remarks in context, and in light of defendant’s arguments.” Id. at 454. “[A] preserved,
nonconstitutional error is not a ground for reversal 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 Brownridge (On Remand), 237 Mich App 210, 216; 602 NW2d 584
(1999), quoting Lukity, 460 Mich at 496 (internal quotation omitted).

       In her closing argument, the prosecutor said, “We know, based upon the testimony of Mr.
Knight who, well meaning, is related to the defendant and was high for most of the time that this

                                                -6-
was happening, that there might be a relationship between the two people, Mr. Friar and Mr.
Buchanan, the two people that she saw on that WDIV Click on 4 story.” Contrary to the
prosecutor’s assertion, Knight never testified that he knew of a relationship between Friar and
defendant. Instead, Knight testified as follows:

               Q. And did you know that his mother used to be a Friar and that Lamont
       Friar and Torrean Buchanan are cousins, did you know that?

              A. No, I didn’t.

              Q. Yeah, they’re family. . . .


A prosecutor cannot make a statement of fact in its closing argument that is not supported by the
evidence, but may make reasonable inferences from evidence admitted at trial. Unger, 278 Mich
App at 241.

        Nevertheless, when the prosecutor’s statements are viewed in the context of all the
evidence presented at trial, they did not deny defendant a fair and impartial trial. The jury had
most likely already inferred a connection between the two from Angela’s testimony that she
identified them from a news story on the WDIV website featuring both of their pictures. In
addition, the trial court instructed the jury that closing arguments should not be considered
evidence, and that the jury should only accept those things said by the attorneys that are
supported by the evidence. Curative instructions will cure most inappropriate prosecutorial
statements, and it is presumed that jurors will follow their instructions. Id. at 235.

       Affirmed.



                                                           /s/ Deborah A. Servitto
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Mark T. Boonstra




                                               -7-
