                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 2, 2014
               Plaintiff-Appellee,

v                                                                  No. 317519
                                                                   Macomb Circuit Court
ANTONIO VALENTINE MATHIS,                                          LC No. 2012-004080-FC

               Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

v                                                                  No. 317587
                                                                   Macomb Circuit Court
JAMAL RASHARD ROGERS,                                              LC No. 2012-004077-FC

               Defendant-Appellant.


Before: O’CONNELL, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

         In these consolidated appeals,1 defendants Antonio Valentine Mathis (“Mathis”) and
Jamal Rashard Rogers (“Rogers”) appeal as of right their convictions and sentences after a joint
trial held before a single jury. On May 30, 2013, the jury convicted Mathis of assault with intent
to murder (“AWIM”), MCL 750.83, conspiracy to commit first-degree murder, MCL 750.316;
MCL 750.157a, possession of a firearm during the commission of a felony (“felony-firearm”),
MCL 750.227b, unlawful imprisonment, MCL 750.349b, and conspiracy to commit unlawful
imprisonment, MCL 750.349b; MCL 750.157a. The same jury convicted Rogers of AWIM,
conspiracy to commit first-degree murder, unlawful imprisonment, and conspiracy to commit
unlawful imprisonment. On July 9, 2013, the trial court sentenced Mathis, as a fourth habitual


1
 People v Mathis and Rogers, unpublished order of the Court of Appeals, entered July 1, 2014
(Docket Nos. 317519; 317587).


                                               -1-
offender, MCL 769.12, to 50 to 75 years’ imprisonment for AWIM, life imprisonment for
conspiracy to commit first-degree murder, two years’ imprisonment for felony-firearm, and 10 to
20 years’ imprisonment for unlawful imprisonment and conspiracy to commit unlawful
imprisonment. On the same day, the trial court sentenced Rogers, as a second habitual offender,
MCL 769.10, to 29 to 50 years’ imprisonment for AWIM, life imprisonment for conspiracy to
commit first-degree murder, and 10 to 22 1/2 years’ imprisonment for unlawful imprisonment
and conspiracy to commit unlawful imprisonment. We affirm.

                                   I. UNDERLYING FACTS

        Rogers and Latonya Bowman (“Bowman”), the victim, met in high school. In 2011,
Bowman became pregnant with Rogers’s child. Rogers expressed a desire for Bowman to
terminate the pregnancy, but she did not do so. On May 25, 2012, when Bowman was nine
months’ pregnant, the two went to a drive-in movie together. After the movie, Bowman drove
them back to Rogers’s home. The two arrived at Rogers’s home at approximately 1:30 a.m. the
morning of May 26, 2012. When they arrived, Rogers told Bowman to pull her vehicle into the
garage. Rogers manually opened the garage door, and after Bowman pulled in, closed it behind
her vehicle. Bowman got out of the car, and felt an assailant, wearing gloves, grab the back of
her neck and put a gun to her head. Bowman looked at Rogers, who said “Oh, shit,” and did
nothing else. The assailant restrained Bowman with duct tape and placed her in the rear seat of
the vehicle. Duct tape was placed over Bowman’s glasses, preventing her from seeing the
assailant.

        The assailant drove Bowman to an unknown location. The assailant doused Bowman in
lighter fluid and lit her on fire. Bowman managed to move the upper half of her body out of the
car and tried to roll to put the flames out. While she did so, she heard two gunshots. She played
dead, not knowing if she had been struck. She heard the footsteps of her assailant running away
from the scene, and once she could no longer hear the footsteps, she managed to fully exit the
vehicle and put out most of the flames. She was able to remove the tape binding her hands and,
after removing the rest of her restraints and some clothing that would not stop burning, got back
in the car. The keys were still in the ignition, so she started the car and drove away. After
finding her bearings, she was able to drive to her mother’s home, and her mother took her to the
hospital.

        Police arrested Rogers later that morning. Mathis was later identified as the alleged
assailant. Both defendants were charged. Before trial, defendants requested separate trials or
juries, and the trial court denied their requests. Rogers also moved to suppress a statement he
made to police, which the trial court also denied. Defendants were subsequently convicted, and
now appeal.

                                   II. DOCKET NO. 317519

                     A. MATHIS’S MOTION FOR SEPARATE TRIALS

       Mathis argues that the trial court abused its discretion when it denied his motion for
separate trials. We disagree. “Generally, a trial court’s ‘ultimate ruling on a motion to sever is
reviewed for an abuse of discretion.’ ” People v Williams, 483 Mich 226, 234 n 6; 769 NW2d

                                               -2-
605 (2009), quoting People v Girard, 269 Mich App 15, 17; 709 NW2d 229 (2005). “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” People v Buie, 491 Mich 294, 320; 817 NW2d 33 (2012).

        “A strong policy favors joint trials in the interest of judicial economy; a defendant does
not have an absolute right to a separate trial.” People v Hoffman, 205 Mich App 1, 20; 518
NW2d 817 (1994). However, the trial court may, and in some cases must, order severance. See
MCR 6.121. Pursuant to MCR 6.121(C), a trial court “must sever the trial of defendants on
related offenses on a showing that severance is necessary to avoid prejudice to substantial rights
of the defendant.” Mathis argues that severance was required in this instance because his theory
of defense could not be reconciled with that of Rogers. However, “Severance is mandated under
MCR 6.121(C) only when a defendant provides the court with a supporting affidavit, or makes
an offer of proof, that clearly, affirmatively, and fully demonstrates that his substantial rights will
be prejudiced and that severance is the necessary means of rectifying the potential prejudice.”
People v Hana, 447 Mich 325, 346; 524 NW2d 682 (1994). “The failure to make this showing
in the trial court, absent any significant indication on appeal that the requisite prejudice in fact
occurred at trial, will preclude reversal of a joinder decision.” Id. at 346-347. Although he filed
a motion for severance which asserted various facts, Mathis did not provide an affidavit or make
an offer of proof in connection with the motion. Accordingly, reversal is precluded, “absent any
significant indication on appeal that the requisite prejudice in fact occurred at trial . . . .” Id.

        Mathis argues that he and Rogers presented mutually exclusive defenses, mandating
separate trials. “Inconsistency of defenses is not enough to mandate severance; rather, the
defenses must be mutually exclusive or irreconcilable.” Id. at 349 (quotation marks and citations
omitted). The first prong of Rogers’s defense was that there was insufficient evidence to
demonstrate the assailant, whether Mathis or someone else, intended to kill Bowman. The
second prong of his defense was that there was insufficient evidence to demonstrate that any
agreement was made that would support the conspiracy charges. Mathis first argued that there
was insufficient evidence to identify him as the assailant. He then argued, just as Rogers had,
that there was insufficient evidence of an intent to kill and insufficient evidence of an agreement
to support the conspiracy charges. Thus, Mathis and Rogers presented identical defenses, except
to the extent Mathis disputed his identity as the assailant. However, Rogers’s defense was not
dependant on the jury concluding that Mathis was the assailant; the identity of the assailant was
not a component of either prong of Rogers’s defense. Mathis and Rogers did not present
inconsistent defenses, let alone defenses that were mutually exclusive. As the defenses presented
by Mathis and Rogers were not mutually exclusive, the trial court’s order may not be reversed, as
Mathis has not demonstrated that prejudice occurred at trial. See id. at 346-350.

       Mathis argues that Rogers’s defense was to place the blame on Mathis, citing Rogers’s
statement to police sergeant John Barnes. Rogers admitted to Barnes that he was present during
Bowman’s abduction, and told Barnes that the abduction was Mathis’s idea and that he told
Mathis that he did not want to do anything in relation to the abduction. However, in making his
argument, Mathis ignores that Rogers never presented this defense to the jury. Before trial
began, Mathis and the prosecutor agreed to a redacted version of Rogers’s statement, which
removed all references to Mathis. However, the prosecutor never sought to have this redacted
statement introduced; instead, the prosecutor questioned Barnes about what Rogers told him
during the interview. The trial court precluded Rogers from eliciting testimony from Barnes that

                                                 -3-
would have allowed the jury to infer that Rogers implicated Mathis in the crime. Rogers chose
not to testify, and as such, Rogers presented no evidence to the jury that directly implicated
Mathis. Therefore, there is no indication that conflicting defenses were actually presented at
trial, and accordingly, reversal is not warranted. See id. at 346-347. Further, even had this
defense been presented by Rogers, it would not have required severance. Mere fingerpointing is
not sufficient to demonstrate mutually irreconcilable defenses, particularly where, as here, the
prosecutor’s theory allows one defendant to be held criminally liable for the acts of the other. Id.
at 360-361.

        Mathis asserts that he was prejudiced because Rogers’s attorney posed a question to
Barnes that violated the trial court’s order precluding Rogers from eliciting testimony from
Barnes that would have allowed the jury to infer that Rogers implicated Mathis in the crime. The
question by Rogers’s attorney resulted in an objection by the prosecutor and a motion for a
mistrial by Mathis. However, due to the timeliness of the prosecutor’s objection, Barnes did not
respond to the improper question. The trial court sustained the objection, instructed the jury that
the question was not evidence, and instructed the jury to disregard the question. “Jurors are
presumed to follow their instructions, and instructions are presumed to cure most errors.” People
v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). As the question was never
answered, and given the trial court’s instructions, Mathis was not prejudiced by Rogers’s
violation of the trial court’s order. Hana, 447 Mich at 351 (any risk of prejudice may “be allayed
by proper instructions . . . .”).

        At various points in his brief, Mathis seems to argue that separate trials were required
because, even as redacted, Rogers’s statement to Barnes caused him substantial prejudice.
Mathis and the prosecutor agreed to a redacted version of the statement, and Mathis withdrew his
motion to the extent it challenged admission of the statement on confrontation grounds. By
explicitly agreeing that the redacted statement could be presented by the prosecutor, Mathis
waived any contention that he was prejudiced by the redaction. See People v Fetterley, 229
Mich App 511, 520; 583 NW2d 199 (1998) (where a defendant acquiesces to the trial court’s
handling of a matter, he may not raise it as error in this Court). Further, the redacted statement
was not introduced at trial, and none of Rogers’s statements referencing Mathis were elicited
through Barnes. The trial court also instructed the jury that “[e]ach defendants’ statement has
been admitted as evidence only against him. It cannot be used against the other, and you must
not do so. You must not consider that statement in any way when you decide whether each
respective defendant is guilty or not guilty.” Once again, “Jurors are presumed to follow their
instructions . . . .” Abraham, 256 Mich App at 279. At best, Mathis cites to nothing more than
incidental spillover prejudice, which is not sufficient to warrant separate trials. Hana, 447 Mich
at 349. Mathis has not demonstrated that the trial court abused its discretion when it denied his
motion for separate trials.

                                    II. DOCKET NO. 317587

 A. THE TRIAL COURT’S ORDER LIMITING THE SCOPE OF CROSS-EXAMINATION

       Rogers first argues that the trial court erred when it limited the scope of his cross-
examination of Barnes by prohibiting him from questioning Barnes regarding his out-of-court
statements implicating Mathis. We disagree.

                                                -4-
        Although discussed as one issue, Rogers raises three separate claims in regard to the trial
court’s order. First, Rogers argues that the trial court erred when it ruled that MRE 106, the rule
of completeness, did not allow Rogers to introduce his own out-of-court statements at trial.
Second, Rogers argues that the trial court’s order denied him his constitutional right to present a
defense. Finally, he argues that, by limiting the scope of cross-examination, the trial court
denied him his right to confront the witness against him.

        We review Rogers’s preserved claims of evidentiary error for an abuse of discretion,
People v Fink, 456 Mich 449, 458; 574 NW2d 28 (1998), and his confrontation claim de novo,
People v Beasley, 239 Mich App 548, 557; 609 NW2d 581 (2000). Ordinarily, “Whether a
defendant’s right to present a defense was violated by the exclusion of evidence is a
constitutional question that this Court reviews de novo.” People v Mesik (On Reconsideration),
285 Mich App 535, 538-539; 775 NW2d 857 (2009). However, Rogers did not argue that the
trial court’s order impermissibly infringed on his right to present a defense, thereby failing to
preserve the issue. Because this claim is unpreserved, our review is for plain error affecting
substantial rights. Id. at 539.

        Rogers first asserts that he should have been allowed to question Barnes regarding his
statements implicating Mathis under MRE 106, the “rule of completeness.” MRE 106 provides,
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party
may require the introduction at that time of any part or any other writing or recorded statement
which ought in fairness to be considered contemporaneously with it.” By its terms, MRE 106
only applies if a writing or recorded statement, or part thereof, is introduced. The prosecutor
questioned Barnes regarding what Rogers said during his interviews, but never introduced a
written or recorded version of the statement. Further, MRE 106 applies only “if defendant
sought, but was denied, permission to have a complete writing or recorded statement
introduced.” People v McGuffey, 251 Mich App 155, 161; 649 NW2d 801 (2002). Rogers never
sought to have a writing or recorded statement introduced. Because neither the prosecutor nor
Rogers sought to introduce a written or recorded version of the Rogers’s statement, MRE 106 is
of no relevance.

        Second, Rogers claims that the trial court’s ruling denied him the right to present a
defense. “Few rights are more fundamental than that of an accused to present evidence in his or
her own defense.” People v Unger, 278 Mich App 210, 249; 749 NW2d 272 (2008). “However,
an accused’s right to present evidence in his defense is not absolute.” Id. at 250. “The right to
present a complete defense ‘may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.’ ” People v King, 297 Mich App 465, 473; 824 NW2d 258
(2012), quoting Chambers v Mississippi, 410 US 284, 295; 93 S Ct 1038; 35 L Ed 2d 297
(1973). “The Michigan Rules of Evidence do not infringe on a defendant’s constitutional right to
present a defense unless they are arbitrary or disproportionate to the purposes they are designed
to serve.” King, 297 Mich App at 474 (quotation marks and citations omitted).

       Rogers argues that his right to present a defense was denied because he was prohibited
from introducing, through cross-examination of Barnes, portions of his statement in which
Rogers claimed that Mathis took it upon himself to assault Bowman. However, “An exculpatory
statement by a defendant made after his arrest is properly excluded at trial as self-serving.”
People v Taylor, 98 Mich App 685, 690; 296 NW2d 631 (1980), aff’d 422 Mich 407 (1985).

                                                -5-
Further, these statements would have been hearsay. “ ‘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 inadmissible unless a recognized
exception applies.” Mesik, 285 Mich App at 538.2 Finally, because these statements implicated
Mathis, had they been introduced at trial, Mathis would have been denied his right to
confrontation, unless Rogers testified. Bruton v US, 391 US 123, 127-128; 88 S Ct 1620; 20 L
Ed 2d 476 (1968). Rogers does not argue that these rules are arbitrary or disproportionate, and
accordingly, has not demonstrated that his right to present a defense was denied. See King, 297
Mich App at 474.

        Further, if Rogers wished to present his version of events at trial, he was free to do so.
Rogers could have testified regarding his and Mathis’s role in the incident. Rather than do so,
Rogers voluntarily exercised his right not to testify. The trial court’s ruling did not prevent
Rogers from presenting his defense; rather, it prevented him from doing so in an impermissible
manner. See Bruton, 391 US at 127-128; Mesik, 285 Mich App at 538; Taylor, 98 Mich App at
690. In effect, Rogers argues that he should have been able to have his statements admitted
without taking the stand, thus avoiding being cross-examined. “A defendant in a criminal case
has a right to present a defense, but that right is not cloaked with protection from vigorous cross-
examination.” People v Gray, 466 Mich 44, 48; 642 NW2d 660 (2002).

        Finally, Rogers argues that the trial court’s ruling violated his right to confront the
witnesses against him because it limited the scope of his cross-examination of Barnes. The right
of confrontation encompasses the right to cross-examine a witness. Chambers, 410 US at 295.
However, “The Confrontation Clause guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” United States v Owens, 484 US 554, 559; 108 S Ct 838; 98 L Ed 2d 951
(1988) (internal quotation marks and citations omitted). “The right of cross-examination . . .
may bow to accommodate other legitimate interests of the trial process or of society.” People v
Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). As was discussed, Rogers’s attempt
to elicit his own self-serving, out-of-court statements through Barnes ran afoul of several
recognized rules of criminal procedure and evidence. Rogers remained free to cross-examine
Barnes, so long as he did so within the rules of evidence. Rogers was not prevented from cross-
examining Barnes in any meaningful way; rather, he was prevented from using Barnes as a
conduit to introduce his own hearsay statements. Rogers’s right to confrontation was not
violated.

        B. ROGERS’S REQUEST FOR SEPARATE TRIALS OR SEPARATE JURIES

      Rogers next argues that the trial court abused its discretion when it refused his request,
made on the first day of trial, for separate trials or separate juries. We disagree. We review the


2
  Admissions of a party-opponent are specifically excluded from the definition of hearsay. MRE
801(d)(2). Thus, the prosecutor, as Rogers’s opponent, could elicit testimony from Barnes
regarding Rogers’s statements. However, Rogers could not admit his own statement under this
same rule, as the statements would not have been made by an opponent of Rogers.


                                                -6-
trial court’s ruling on a motion for severance or for separate juries for an abuse of discretion.
Williams, 483 Mich at 234 n 6.

        Again, “Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly, affirmatively, and fully
demonstrates that his substantial rights will be prejudiced and that severance is the necessary
means of rectifying the potential prejudice.” Hana, 447 Mich at 346. “The failure to make this
showing in the trial court, absent any significant indication on appeal that the requisite prejudice
in fact occurred at trial, will preclude reversal of a joinder decision.” Id. at 346-347. Rogers did
not provide the trial court with an affidavit or other offer of proof to support his request. Thus,
reversal is precluded unless there is a “significant indication on appeal that the requisite
prejudice in fact occurred at trial . . . .” Id.

        Rogers argues that the prejudice he suffered was that, because the trial court denied his
request for a separate trial or separate juries, he was unable to elicit his own out-of-court
statements through his cross-examination of Barnes. He explains that these statements would
have supported his defense, in that they would have demonstrated that Mathis acted alone. Even
assuming a separate trial or jury had been ordered, Rogers would have been unable to present his
own self-serving statements in his trial. Taylor, 98 Mich App at 690. Further, these statements
would have been inadmissible as hearsay. MRE 801(c); Mesik, 285 Mich App at 538. Rogers
also asserts that the exculpatory portions of his statement were admissible under MRE 106, the
rule of completeness. As discussed supra, the prosecutor’s questioning of Barnes regarding the
inculpatory portions of Rogers’s statement did not allow Rogers to admit the exculpatory
portions of the statement under MRE 106. Therefore, as Rogers would not have been able to
present these statements in a separate trial, Rogers has not demonstrated that holding a joint trial
caused him any prejudice. Accordingly, reversal of the trial court’s denial of Rogers’s request is
precluded. Hana, 447 Mich at 346-347.

                        C. SUPPRESSION OF ROGERS’S STATEMENT

       Finally, Rogers argues that the trial court erred when it denied his motion to suppress his
second statement to Barnes. We disagree. The trial court denied Rogers’s suppression motion,
finding that the statement was not the result of an interrogation. Where, as here, the facts
relevant to a suppression hearing are not disputed, this Court “review[s] de novo the trial court’s
decision regarding whether defendant was subjected to ‘interrogation’ or, more specifically,
‘express questioning or its functional equivalent.’ ” People v White, 493 Mich 187, 193; 828
NW2d 329 (2013), quoting Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed
2d 297 (1980).

          As our Supreme Court explained in People v Elliott, 494 Mich 292, 301; 833 NW2d 284
(2013):

                 In Miranda, [384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966),] the
          United States Supreme Court held that the Fifth Amendment’s prohibition against
          compelled self-incrimination requires that the accused be given a series of
          warnings before being subjected to “custodial interrogation.” Miranda, 384 US at
          444 (“Prior to any questioning, the person must be warned that he has a right to

                                                -7-
       remain silent, that any statement he does make may be used as evidence against
       him, and that he has a right to the presence of an attorney, either retained or
       appointed.”). The right to have counsel present during custodial interrogation is a
       corollary of the right against compelled self-incrimination, because the presence
       of counsel at custodial interrogation is one way in which to “insure that
       statements made in the government-established atmosphere are not the product of
       compulsion.” Id. at 466; see also id. at 470.

If a defendant, having waived his Miranda rights, subsequently requests that counsel be present,
questioning must end “until counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the police.” Edwards v
Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). See also Elliott, 494
Mich at 302. A request for counsel does not prohibit any further communication between police
and a defendant. Edwards, 451 US at 484-485. Instead, it prohibits further “police-initiated
custodial interrogation.” People v Kowalski, 230 Mich App 464, 478; 584 NW2d 613 (1998).

        There is no dispute regarding the underlying facts.3 Rogers invoked his right to counsel
during his first interview with Barnes, and questioning ceased at that point. The following day,
Barnes took Rogers to perform a DNA swab. When Barnes returned Rogers to his cell, Rogers
stated, “Could we talk?” Barnes told Rogers that he could talk, and Rogers provided Barnes with
Mathis’s name. Barnes then took Rogers to an interview room and told him that he had all of the
rights he “had explained to him the day before, and that he can invoke the right[s] at any time he
wants not to talk to [Barnes].” Rogers stated that he understood his rights and agreed to talk to
Barnes. Rogers then provided statements that were used against him at trial.

        Rogers argues that, by walking him back to his cell after the DNA swab was taken,
Barnes conducted what amounted to a custodial interrogation, and accordingly, his request to
speak to Barnes and all subsequent statements were obtained in violation of his Miranda rights.
“For purposes of Miranda, interrogation refers to express questioning or its functional
equivalent.” Kowalski, 230 Mich App at 479 (quotation marks and citation omitted). “The
functional equivalent of interrogation includes any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Id. (quotation marks and
citation omitted). Walking a suspect to and from a cell is an action that is normally attendant to
custody, and as such, is not the functional equivalent of interrogation. Further, there is no reason
why Barnes should have known that, by walking Rogers back to his cell, Rogers was likely to
provide incriminating statements. Rogers’s argument would ask this Court to hold that any
contact with a defendant after that defendant has invoked his right to counsel amounts to
custodial interrogation, an argument which this Court has rejected. Id. at 478. Rogers’s
argument lacks merit.




3
  For the purposes of the motion to suppress, the parties agreed to rely on testimony from the
preliminary examination.


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Affirmed.

                  /s/ Peter D. O'Connell
                  /s/ Mark J. Cavanagh
                  /s/ Karen M. Fort Hood




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