                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED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

v                                                                  No. 314765
                                                                   Wayne Circuit Court
TIMOTHY MICHAEL SANDERS,                                           LC No. 12-008256-FC

              Defendant-Appellant.


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

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of second-degree murder, MCL
750.317, assault with intent to commit murder (AWIM), MCL 750.83, carrying a concealed
weapon (CCW), MCL 750.227, and possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. We affirm.

                                I. FACTUAL BACKGROUND

        This case arises out of a fatal shooting on January 16, 2012. Shortly before 3:00 p.m.,
Darryl Smith heard a commotion and went outside his home to see what was happening. He saw
some women fighting in the street. Darius Kendrick, who was Smith’s stepfather, was pulling
the female combatants apart. One of the women involved, Diamond Randall, called defendant,
who was her cousin, and told him that she was upset about how Kendrick had thrown her to the
ground while breaking up the fight. After the fight broke up, defendant arrived at the scene in a
Range Rover. Smith knew defendant by his nickname, “Big Tim,” and had seen him on several
prior occasions. Defendant spoke to some women near the scene of the fight, then approached
Smith and Kendrick. He was aggressive and told Kendrick “to keep his hands to his self.”
Smith and Kendrick backed away, but defendant produced a handgun from his right pocket and
began to shoot, firing “[m]ore than seven” times. Smith was shot once in the foot. Kendrick was
fatally shot in the chest, stomach, and leg. Defendant was “[a]bout three or four feet” from
Smith and Kendrick when he shot them. Smith testified that neither he nor Kendrick had a gun.
After the shooting, defendant ran back to the Range Rover and left the scene. Smith had “no
doubt” about his identification of defendant as the shooter. When the police arrived, Smith told
them that “Big Tim” had shot him. Initially, defendant could not be located. Eventually, he was
arrested by the United States Marshals Service at a relative’s home in Marion County, Ohio.



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                                       II. DISCUSSION

       Defendant argues that a combination of errors impermissibly suggested to the jury that he
was a previously convicted felon and had broken the law by possessing a firearm when he was
not permitted to do so. We disagree.

       During jury selection, the trial court mistakenly told the jury that defendant was charged
with felon in possession of a firearm, which was a charge that had been dismissed at the
preliminary examination. The trial court subsequently corrected itself and read the proper
charges. But later, during trial, the prosecution elicited testimony that Smith had seen defendant
in possession of a gun on an occasion before the shooting. Defendant contends that, in
combination, these two errors constituted improper bad acts evidence under MRE 404(b), which
provides, in pertinent part, “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.”

        Defendant waived the alleged error during jury selection by affirmatively approving the
selected jury. See People v Clark, 243 Mich App 424, 426; 622 NW2d 344 (2000). We review
the trial court’s evidentiary decision for an abuse of discretion, but review de novo any
“preliminary legal issues regarding admissibility.” People v Wood, 307 Mich App 485, 500; 862
NW2d 7 (2014).

        Defendant’s argument fails for a number of reasons. First, the trial court’s mistaken
recitation of the felon-in-possession charge was not evidence; thus, defendant’s proposed
application of MRE 404(b) to the trial court’s jury instruction is wholly inappropriate. Second,
the trial court immediately corrected its misstatement of the charges. Third, defendant assumes
that the jury inferred prior bad acts by defendant, but such an inference is unlikely. Although
lawyers and judges may be familiar with the elements of felon-in-possession, most jurors are
probably not. That is, a typical juror would not have inferred defendant had a prior felony
conviction that made him ineligible to possess a firearm although he possessed one. Fourth, the
trial court administered proper jury instructions which cured any prejudice. Since jurors are
presumed to follow their instructions, any unfair prejudice resulting from improper evidence of a
defendant’s prior bad acts can be dispelled by proper jury instructions. People v Horn, 279 Mich
App 31, 36; 755 NW2d 212 (2008). The trial court struck the testimony by Smith that defendant
had previously possessed a firearm, and instructed the jury to disregard it. Further, the jury was
instructed (1) not to consider the trial court’s comments or the fact that defendant was charged
with crimes as evidence, (2) defendant was presumed innocent, (3) it should only consider
properly admitted evidence, and (4) any stricken testimony must be disregarded. Thus, any
prejudice to defendant was dispelled, and reversal is unwarranted. See People v Snyder (After
Remand), 301 Mich App 99, 111; 835 NW2d 608 (2013).

        Defendant next argues that the trial court erred by failing to administer a voluntary
manslaughter instruction. We disagree. At trial, defense counsel agreed with the trial court’s
decision that a voluntary manslaughter instruction was unwarranted. Thus, defendant waived
this issue for appellate review; his waiver extinguished any error. People v Kowalski, 489 Mich
488, 503; 803 NW2d 200 (2011).



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      But even if defendant had not waived this issue, we would conclude that a voluntary
manslaughter instruction was not supported by the evidence. See People v Mitchell, 301 Mich
App 282, 286; 835 NW2d 615 (2013), quoting People v Mendoza, 468 Mich 527, 541; 664
NW2d 685 (2003). As discussed in Mitchell:

       To prove that a defendant committed voluntary manslaughter, “ ‘one must show
       that the defendant killed in the heat of passion, the passion was caused by
       adequate provocation, and there was not a lapse of time during which a reasonable
       person could control his passions.’ ” People v Reese, 491 Mich 127, 143; 815
       NW2d 85 (2012), quoting Mendoza, 468 Mich at 535[]. However, provocation is
       not an element of voluntary manslaughter; rather, it is a circumstance that negates
       the presence of malice. Mendoza, 468 Mich at 536[]. In People v Tierney, 266
       Mich App 687; 703 NW2d 204 (2005), this Court held that “[t]he degree of
       provocation required to mitigate a killing from murder to manslaughter ‘is that
       which causes the defendant to act out of passion rather than reason.’ ” Id. at 714-
       715[], quoting People v Sullivan, 231 Mich App 510, 518; 586 NW2d 578 (1998).
       Further, “[i]n order for the provocation to be adequate it must be that which
       would cause a reasonable person to lose control.” Tierney, 266 Mich App at
       715[] (citation and quotation marks omitted). Whether the provocation was
       reasonable is a question of fact; but if “no reasonable jury could find that the
       provocation was adequate, the court may exclude evidence of the provocation.”
       Id. (citation and quotation marks omitted). [Mitchell, 301 Mich App at 286 (third
       alteration in original).]

In determining whether a voluntary manslaughter instruction is appropriate, a reviewing court
may consider the theory of the case advanced by the defendant at trial. See Mendoza, 468 Mich
at 546-548.

        The trial court’s decision not to submit a voluntary manslaughter instruction to the jury
was proper because there was insufficient evidence of legally adequate provocation. There was
no evidence of a physical confrontation between defendant and Kendrick. There was no
evidence that anyone threatened defendant, brandished a weapon at him, or shot at him, although
shell casings from more than one caliber of weapon were found at the scene. There was no
evidence of a verbal confrontation between defendant and Kendrick that would cause a rational
person to act in the heat of passion. See People v Roper, 286 Mich App 77, 88; 777 NW2d 483
(2009). And even if Kendrick’s alleged assault of defendant’s cousin was legally adequate
provocation, the record indicates that a sufficient “cooling off” period had elapsed “during which
a reasonable person could have controlled his passions.” See People v Pouncey, 437 Mich 382,
392; 471 NW2d 346 (1991). The cousin called defendant, who drove to the scene of the
shooting and spoke with several people before confronting and ultimately shooting Kendrick and
Smith. During that interlude, a reasonable person could have reflected on the situation and
controlled his passions. Thus, the trial court correctly concluded that a voluntary manslaughter
instruction was unwarranted. Accordingly, defendant’s ineffective assistance of counsel
argument premised on his counsel’s agreement with the trial court that a voluntary manslaughter
instruction was not warranted is also without merit. See People v Clark, 274 Mich App 248,
258; 732 NW2d 605 (2007).


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       Next, defendant argues that the prosecution improperly shifted the burden of proof to the
defense by improperly asking a police witness if defense counsel had requested ballistics testing
on shell casings recovered at the scene and by commenting in closing argument that defendant
“did not testify if he had ever owned or fired a gun or explain where he went after the shooting.”
We disagree.

         While defendant timely objected to these alleged instances of misconduct, defendant
failed to request a curative instruction after either objection. Because “[t]he goal of a defense
objection to improper remarks by the prosecutor is a curative instruction,” appellate review of
such remarks is generally precluded where the defendant failed to request a curative instruction
“unless the prejudicial effect of the remark[s] was so great that it could not have been cured by
an appropriate instruction.” People v Cross, 202 Mich App 138, 143; 508 NW2d 144 (1993)
(citations omitted). Likewise, reversal is unwarranted where a “curative instruction could have
alleviated any prejudicial effect.” People v Callon, 256 Mich App 312, 329-330; 662 NW2d 501
(2003) (citations omitted).

        “[A]llegations of prosecutorial misconduct are considered on a case-by-case basis, and
the reviewing court must consider the prosecutor’s remarks in context.” People v Bennett, 290
Mich App 465, 475; 802 NW2d 627 (2010). Prosecutorial arguments must be viewed “in light
of defense arguments and the relationship they bear to the evidence admitted at trial,” People v
Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008), and the propriety of such arguments is
dependent on “the particular facts of each case,” Callon, 256 Mich App at 330.

       First, defendant claims the prosecution shifted the burden of proof by asking a police
witness, “Did the defense attorney ever call you and say I would like to have these bullets
examined, can you see what you can do?”, to which the officer responded, “No he did not.”
Defense counsel objected, arguing that the prosecution’s question shifted the burden of proof to
the defense, and the trial court sustained that objection, ruling that the question was improper.
We agree with defendant that this question improperly shifted the burden of proof to him.
However, any prejudicial effect arising from this single and brief question was not so great that it
could not have been cured by an appropriate instruction. See Cross, 202 Mich App at 143.
Accordingly, reversal is unwarranted. See Callon, 256 Mich App at 329-330.

       Second, defendant argues that the prosecution impermissibly shifted the burden of proof
with the following remarks during closing argument:

       The defense is dealt a bad hand because [defendant] arrives at the scene [of the
       shooting] angry, summoned by the girls. He shows up with a weapon. He fires
       the gun, he runs away, he goes to Ohio.

              And let’s talk about his testimony now. In all of my years, 26 years as a
       prosecutor, 300 murder cases. Never, never has a defense been, has a defendant
       been called to the witness stand, ask[ed] his name; did you know the victim; did
       you talk to him; no further questions. I mean, that’s a prosecutor’s dream because
       we can’t comment upon a defendant’s silence. When a defendant doesn’t take the
       stand, we can’t say to you, ladies and gentleman, why didn’t he take the stand?
       Why didn’t he tell you where he was at that date? Why didn’t he tell you whether

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       or not he’s ever owned a gun? Why doesn’t he tell you whether, whether he’s
       ever fired a gun? Why didn’t he tell you where he went afterward? Where did he
       do [sic] afterward? Where did he go the next day? Why was he in Ohio? Why
       did he have his attorney say he’d turn him in and he didn’t turn himself in? So
       this guy takes the stand, it’s a prosecutor’s dream. It’s a one in a million. One in
       a million.

                                              * * *

              It’s a one in a billion. It’ll never happen again. So we made history here.
       [Defense counsel] called his client and he places him under oath and never asked
       him[,] did you shoot [Kendrick]? Never asked him. Calls him as a witness. I
       don’t have to ask him anything. [Defense counsel] calls it [his] trick. This trial is
       not about tricks. This guy takes the witness stand, he’s looking at you and he
       never says I didn’t do it. I didn’t do it. And if he didn’t do it[,] he would have
       told you that. [Defense counsel] didn’t even ask him[,] did you do it[?] He didn’t
       even say to you why he arrived when he arrived. He doesn’t say to you[,] I went
       to Ohio for other reasons.

         Because defendant elected to testify, the prosecution’s argument was proper. Although
the constitutional right against self-incrimination prevents the prosecution from commenting on a
criminal defendant’s refusal to testify, “[i]n general, where a defendant ‘takes the stand and
testifies in his own defense, his credibility may be impeached and his testimony assailed like that
of any other witness . . . .’ ” People v Fields, 450 Mich 94, 110; 538 NW2d 356 (1995) (footnote
omitted), quoting Brown v United States, 356 US 148, 154; 78 S Ct 622; 2 L Ed 2d 589 (1958).
Moreover, prosecutorial commentary on a testifying defendant’s failure to present evidence to
corroborate a defense theory is proper and not “violative of due process.” Fields, 450 Mich at
112. “Although a defendant has no burden to produce any evidence, once the defendant
advances evidence or a theory, argument on the inferences created does not shift the burden of
proof.” Id. at 115.

        Defendant’s theory of the case was actual innocence—that someone else was the shooter.
The prosecutor argued that, although defendant testified, he provided no corroboration for that
defense theory. While it is true that the prosecutor failed to cross-examine defendant about his
failure to provide such corroboration, defendant has cited no legal authority for his claim that the
prosecution’s failure to cross-examine a testifying defendant precludes it from arguing inferences
that arise out of the defendant’s testimony during direct examination. The prosecution’s
argument did not improperly shift the burden of proof. Instead, it questioned why defendant,
having elected to testify, presented no testimony to support his defense. That is, defendant
advanced a theory of actual innocence and testified at his trial, yet he did not corroborate his
defense theory. The prosecutor’s “argument on the inferences created does not shift the burden
of proof.” Id.

       Next, in his Standard 4 brief, defendant argues that he is entitled to a new trial because of
newly discovered evidence. After we remanded this matter for an evidentiary hearing, the trial
court denied defendant’s motion for a new trial on this ground. After review of the trial court’s


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decision for an abuse of discretion, we disagree with defendant’s claim and affirm the trial court.
See People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012).

       As our Supreme Court held in People v Cress, 468 Mich 678; 664 NW2d 174 (2003):

       For a new trial to be granted on the basis of newly discovered evidence, a
       defendant must show that: (1) “the evidence itself, not merely its materiality, was
       newly discovered”; (2) “the newly discovered evidence was not cumulative”; (3)
       “the party could not, using reasonable diligence, have discovered and produced
       the evidence at trial”; and (4) the new evidence makes a different result probable
       on retrial. People v Johnson, 451 Mich 115, 118 n 6; 545 NW2d 637 (1996);
       MCR 6.508(D). [Cress, 468 Mich at 692.]

“The defendant carries the burden of satisfying all four parts of this test.” Rao, 491 Mich at 279.
Such motions are generally disfavored because “in fairness to both parties and the overall justice
system, the law requires that parties secure evidence and prepare for trial with the full
understanding that, absent unusual circumstances, the trial will be the one and only opportunity
to present their case.” Id. at 280. Indeed, “[i]t is the obligation of the parties to undertake all
reasonable efforts to marshal all the relevant evidence for [] trial. Evidence will not ordinarily
be allowed in installments.” Id.

       Defendant argues that the testimony of a newly discovered eyewitness, Sedrick Bell-Gill,
would change the outcome on retrial; thus, the fourth part of the Cress test was met. At the
postconviction evidentiary hearing, Bell-Gill testified that he was present during the shooting
incident and that defendant’s half-brother Timothy Carpenter was the shooter, not defendant.
However, the trial court denied defendant’s motion for a new trial, holding that “Bell-Gill’s
testimony would not render a different result probable on retrial.” The trial court reasoned that
Bell-Gill’s testimony at the evidentiary hearing was contradicted by “overwhelming evidence” of
defendant’s guilt presented by the prosecution at trial:

       First, Mr. Smith’s identification was made reliable when he testified that he knew
       [d]efendant, having seen him around the neighborhood on a number of occasions.
       Second, the prosecutor further bolstered Mr. Smith’s eyewitness account by
       presenting the testimony of Officer Ryan Paul, who said that when he arrived on
       the scene and spoke with Mr. Smith, that Mr. Smith told him that [d]efendant was
       the shooter. Third, and most notably, the prosecutor presented the testimony of
       the medical examiner, Dr. Leigh Hlavaty. Dr. Hlavaty testified that Mr.
       Kendrick’s gunshot wounds entered his body from the front, which corroborated
       Mr. Smith’s testimony, and contradicts the testimony of Mr. Bell-Gill, who said
       that while [d]efendant was in front of the victims, the shooter was behind the
       victims. Additionally, the prosecutor presented evidence that [d]efendant could
       not be located after the incident, eventually being arrested in Ohio, which
       supports the inference that [d]efendant had a consciousness of guilt. Taken in its
       totality, the evidence presented by the prosecutor was overwhelming, and is
       contradicted by the testimony of Mr. Bell-Gill. Therefore, the Court finds that a
       different result is not probable on retrial. Defendant is not entitled to a new trial.
       [Footnotes omitted.]

                                                -6-
It further reasoned that Bell-Gill’s testimony at the evidentiary hearing was “incredible.”

        The trial court did not abuse its discretion by denying defendant’s motion for a new trial
premised on this purported “newly discovered eyewitness.” Since witness credibility falls within
the sound discretion of a trial court considering a motion for a new trial, it was proper for the
trial court to evaluate Bell-Gill’s credibility, and it would be improper for this Court to second-
guess that credibility determination. See Cress, 468 Mich at 692, 694. Indeed, we afford
particular deference to credibility determinations made by a trial court judge where, as here, a
conflict between the testimony of two witnesses is involved. See People v Farrow, 461 Mich
202, 209; 600 NW2d 634 (1999). Bell-Gill’s testimony is directly contrary to Smith’s
eyewitness account and identification of defendant as the shooter. The trial court, with its unique
opportunity to appraise the credibility of both Bell-Gill and Smith, found that Bell-Gill’s
testimony was “incredible.” It further concluded that his testimony was inconsistent with his
prior statement to the FBI and with the physical evidence. Moreover, even if believed, Bell-
Gill’s testimony was not strong evidence. He admitted that he saw only one shot fired by
Carpenter, and did not actually witness whether that shot struck anyone or whether Carpenter
fired additional shots. But Smith clearly identified defendant as the shooter and witnessed the
entire event. As the trial court concluded, Bell-Gill’s testimony did not make a different result
probable on retrial. See Cress, 468 Mich at 692. Thus, the trial court did not abuse its discretion
when it denied defendant’s motion for a new trial. See Rao, 491 Mich at 279.

       Affirmed.



                                                             /s/ Kirsten Frank Kelly
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Henry William Saad




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