                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 17, 2018
              Plaintiff-Appellee,

V                                                                  No. 337993
                                                                   Clinton Circuit Court
TYRON JAMAR HUSBAND,                                               LC No. 15-009444-FC

              Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

        Tyron Jamar Husband appeals as of right his jury convictions of second-degree murder,
MCL 750.317, armed robbery, MCL 750.529, conspiracy to commit first-degree home invasion,
MCL 750.110a(2) and MCL 750.157a(a), first-degree home invasion, MCL 750.110a(2), and
three counts of possession of a firearm during the commission of a felony, MCL 750.227b. We
affirm.

       Husband’s convictions arose from a home invasion that led to the shooting death of
Jauwan Gaylord Butler on September 18, 2013, in the area of St. Johns, Michigan. The
prosecution’s theory of the case was that Clifton Bell-Flourry initiated a plan to break into the
home of a person known by his girlfriend in search of large sums of money and drugs. Bell-
Flourry then persuaded James Spaythe, Joseph Seay, Cody Alvarez, Anthony Dillard, and
Husband to carry out the plan, during the course of which Husband fatally shot Butler. Bell-
Flourry, Seay, and Alvarez entered guilty pleas in the matter and testified for the prosecution.
Spaythe also testified at trial under a grant of immunity.

                                    I. DOUBLE JEOPARDY

       Husband first argues that the constitutional protections against double jeopardy should
have prevented the prosecution from retrying him after a mistrial was declared. We disagree.




                                               -1-
        The Double Jeopardy Clauses of our federal and state Constitutions1 prohibit a criminal
defendant from being placed twice in jeopardy for a single offense. People v Booker (After
Remand), 208 Mich App 163, 172; 527 NW2d 42 (1994), citing People v Dawson, 431 Mich
234, 250; 427 NW2d 886 (1988). However, the Double Jeopardy Clauses will not typically
serve as a bar to retrial when a defendant requests, or consent to, a mistrial; under those
circumstances, the defendant’s actions are viewed as having waived a resulting double jeopardy
claim. Dawson, 431 Mich at 253. On the other hand, “[w]here a mistrial results from apparently
innocent or even negligent prosecutorial error, or from factors beyond his control, the public
interest in allowing a retrial outweighs the double jeopardy bar.” Id. at 257 (citation omitted).

        Before the first trial, the prosecution stipulated that it would not introduce any evidence
that Husband had been previously convicted of offenses involving weapons, had been known to
carry a firearm, or had been involved in prior shootings or assaults. But despite the stipulation,
the prosecution inadvertently elicited prohibited testimony from Spaythe. Spaythe testified that
Husband was carrying a .40-caliber firearm during the incident and that he, Spaythe, heard
gunshots he associated with a .40-caliber firearm. The group fled the property, and Spaythe was
unsure if anyone had been shot. After Spaythe testified that he learned from a later newscast that
someone had died, the following exchange took place:

             Q. Did you ever hear anything about this individual [Husband] shooting
       anybody?

               A. Not off—not off hand, not until later on down the line.

               Q. What did you hear?

               A. That he had shot a few other people.

Defense counsel immediately objected, and a bench conference ensued, after which the trial
court instructed the jury to disregard the quoted testimony and excused the jury for the day.
Defense counsel then asked for a mistrial, but emphasized that he did not believe that the
prosecution’s error was intentional. The prosecution similarly explained that the question
pertained to what Spaythe had heard concerning the September 2013 shooting and was not
designed to prompt inadmissible testimony. The trial court concurred with the parties, stating, “I
don’t believe that the testimony was deliberately elicited.” When proceedings resumed the next
day, defense counsel confirmed that he had discussed the matter with Husband and explained to
Husband that jeopardy did not bar retrial. According to defense counsel, Husband completely
understood that “we would have to have another trial.” The trial court stated that it had “no
doubt that [the prosecution’s] inquiry was not an effort to goad [Husband] into requesting




1
  US Const, Am V; Const 1963, art 1, § 15. “The federal provision applies to the states through
the Fourteenth Amendment[, US Const, Am XIV].” People v Dawson, 431 Mich 234, 236 n 2;
427 NW2d 886 (1988).


                                                -2-
mistrial,” then concluded, “it is appropriate to grant the request for a mistrial and . . . we will
retry this case.”

       Defense counsel’s clear agreement that the prosecution inadvertently elicited the
offending testimony obviated the trial court’s need to decide whether the prosecution had
intended to procure a mistrial. Indeed, counsel’s assurance that there was no issue of intentional
misconduct and agreement that retrial was proper affirmatively waived any double jeopardy
arguments against retrial, thus extinguishing appellate objections. See People v Carter, 462
Mich 206, 215; 612 NW2d 144 (2000) (“One who waives his rights under a rule may not then
seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished
any error.”) (quotation marks and citation omitted).

         Even if this issue had not been affirmatively waived by defense counsel, it would not
warrant appellate relief. Unpreserved claims of error are reviewed for plain error affecting
substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). In this case,
the trial court offered detailed findings and conclusions of its own consistent with the parties’
shared position that the prosecution had not intentionally violated the stipulation concerning
prohibited evidence. The context of the prosecution’s inquiry well supports this conclusion, and
the trial court did not plainly err by finding that the prosecution did not act with the intention of
provoking Husband’s request for a mistrial. As such, the constitutional protections against
double jeopardy posed no bar to retrial.

                                          II. HEARSAY

        Husband also argues that he was denied a fair trial because the police investigator,
Undersheriff Frederick Sandberg, improperly testified that Bell-Flourry had named Husband as
part of the criminal scheme. We disagree.

        The decision whether to admit evidence is within the trial court’s discretion and is
reviewed on appeal for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d
607 (1999). As Husband concedes, however, the defense did not object to the challenged
testimony, leaving this issue unpreserved for appellate review. People v Knox, 469 Mich 502,
508; 674 NW2d 366 (2004). Accordingly, our review is for plain error affecting Husband’s
substantial rights. Carines, 460 Mich at 763. An error is plain if it is clear or obvious, and an
error affects substantial rights if it affects the outcome of the proceedings. Id. Where plain error
is shown, the reviewing court should reverse only when the defendant is actually innocent or the
error “seriously affect[ed] the fairness, integrity[,] or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. (quotation marks and citation omitted; first
alteration in original).

        At the second trial, Sandberg described his investigation of the shooting, including his
interviews with Bell-Flourry. Sandberg explained that Bell-Flourry identified four people
involved in the crime: Husband, Spaythe, and two people Bell-Flourry knew only as Anthony
and Joey. Based upon this information, Sandberg questioned Spaythe, who was incarcerated in
Jackson County at the time. On appeal, Husband characterizes Sandberg’s testimony relating
Bell-Flourry’s identification of suspects as inadmissible hearsay. In particular, Husband
contends that Sandberg’s testimony was inadmissible as a prior consistent statement under MRE

                                                -3-
801(d)(1)(B). In passing, he also asserts that the testimony would not qualify for admission
under the “catchall” exception of MRE 803(24).

        Testimony describing a person’s unsworn, out-of-court assertions offered to prove the
truth of the matter asserted is referred to as hearsay and is generally inadmissible, subject to
several exemptions and exceptions as provided by the rules of evidence. MRE 801 through
MRE 804; People v Musser, 494 Mich 337, 350; 835 NW2d 319 (2013). Prior consistent
statements of a witness appearing at trial are exempted from the definition of hearsay when
offered not to prove the matters asserted, but to rebut a charge of recent fabrication. MRE
801(d)(1)(B); People v Jones, 240 Mich App 704, 706-707; 613 NW2d 411 (2000). Where the
proffered hearsay does not qualify for admission under a specific exception, it may still be
admissible under the residual exception set forth in MRE 803(24), which permits admission of
hearsay testimony if four requirements are met:

       (1) it must have circumstantial guarantees of trustworthiness equal to the
       categorical exceptions, (2) it must tend to establish a material fact, (3) it must be
       the most probative evidence on that fact that the offering party could produce
       through reasonable efforts, and (4) its admission must serve the interests of
       justice. [People v Katt, 468 Mich 272, 279; 662 NW2d 12 (2003).]

In addition, the proponent of evidence offered under MRE 803(24) must give the opposing party
advance notice that the evidence will be introduced. Id.

        Before asking Sandberg to repeat the names of the individuals implicated by Bell-
Flourry, the prosecution asked “what information” was obtained from Bell-Flourry that led
Sandberg “to continue down the road with this case[.]” After the names were elicited, the
prosecution continued the examination by asking Sandberg what he did with the information.
Thus, it appears that the challenged testimony was elicited to explain why Sandberg turned his
attention to Husband and Spaythe. Because this testimony was offered to provide context for
Sandberg’s investigative decisions, rather than to prove the truth of Bell-Flourry’s assertions, it
is, by definition, not hearsay. Musser, 494 Mich at 350. Accordingly, its admissibility does not
turn on whether it meets the requirements for admission under MRE 801(d)(1)(B) or MRE
803(24), and Husband’s contention that the testimony was improperly admitted under those
exceptions lacks merit.

                     III. BOLSTERING OF PROSECUTION WITNESSES

        Lastly, Husband argues that Sandberg improperly vouched for the credibility of the
prosecution’s witnesses. Again, because the defense did not object to Sandberg’s testimony on
this ground, this issue is unpreserved and we review for plain error affecting substantial rights.
Knox, 469 Mich at 508; Carines, 460 Mich at 763.

       In the context of explaining the progression of his investigation, Sandberg testified as
follows:

               A. . . . I think [Spaythe] was probably the most forthcoming on an
       interview we did [on] July 15[] of 2015 at the Saginaw facility . . . .


                                                -4-
              Q. All right. Now has [sic] Mr. Spaythe’s statements to you been even
       remotely consistent from beginning to end with his interviews?

               A. No.

               Q. There are some consistencies however, are there not?

               A. Well, the big picture always stayed the same for us.

               Q. And what was the big picture?

              A. Well, the big picture [w]as that there was this plan to go up to Saint
       Johns and get into a house and rob a heroin drug dealer for large amounts of cash
       and or drugs, and things went bad and certain people—right from the beginning—
       were part of that plan, and—

               Q. And who were those people that were—

              A. —at least two guns were mentioned right from the beginning all the
       way through, so.

              Q. And who were those people who were part of the plan right from the
       beginning?

               A. Mr. Husband, Mr. Spaythe, Cody, and . . . Joey and Anthony.

               Q. All right. And I assume Mr. Bell-Flourry?

               A. As the planner . . . .

With respect to his interviews with Alvarez, Sandberg stated that Alvarez “wasn’t truthful at
first” and initially denied knowledge of the shooting. But according to Sandberg, Alvarez later
admitted his involvement and provided further details concerning the incident, though only after
negotiating a plea and sentencing agreement. On appeal, Husband contends that this
testimony—as well as Sandberg’s reference to Bell-Flourry’s prior consistent statement—
improperly bolstered the witnesses’ credibility. We disagree.

        “It is generally improper for a witness to comment or provide an opinion on the
credibility of another witness, because credibility matters are to be determined by the jury.”
People v Dobek, 274 Mich App 58, 71; 732 NW2d 546 (2007). However, we cannot conclude
on the record before us that Sandberg’s statements improperly vouched for the credibility of the
prosecution’s witnesses. Sandberg unequivocally testified that the details of the events described
by Spaythe were inconsistent and that Alvarez was uncooperative until after reaching a plea deal
with the prosecution. Under these circumstances, we will not construe Sandberg’s statements
concerning the varying degrees of cooperation he received from Spaythe and Alvarez as an
attempt to improperly bolster their credibility. Indeed, by relating that the witnesses were
inconsistent in their statements, Sandberg’s testimony discredits Spaythe and Alvarez just as
much as it credits them. And for the reasons explained earlier, we infer that Sandberg’s

                                               -5-
testimony repeating Bell-Flourry’s identification of the individuals who executed his plan was
elicited for the proper purpose of explaining the course of the investigation.

        Further, even if we found error in the challenged testimony, the likely impact of the
alleged bolstering was too slight to warrant disturbing the result. Carines, 460 Mich at 763
(explaining that third element of plain error review “requires a showing of prejudice, i.e., that the
error affected the outcome of the lower court proceedings”). See also People v Mosko, 441 Mich
496, 503; 495 NW2d 534 (1992) (a criminal defendant is entitled to a fair trial, not necessarily a
perfect one). Sandberg did not explicitly opine regarding the credibility of any of the
prosecution’s witnesses. To the contrary, he agreed that most of the witnesses provided different
statements at various stages of the investigation. At most, the jurors could infer that Sandberg
credited some statements made by the witnesses more than others. The impact of such an
inference is insignificant when measured against the balance of the evidence presented against
Husband. Four coconspirators placed Husband at the scene, armed with a .40-caliber gun, and
two individuals incarcerated with Husband testified about his self-implicating discussions with
them. Additionally, an expert in firearms and tool marking indicated that the bullets recovered
from Butler’s body during an autopsy were consistent with either .40-caliber or 10-mm
ammunition. Sandberg also discovered during the course of the investigation that a cellphone
associated with Husband had received or made outgoing calls using a cellphone tower close to
the scene shortly before the shooting occurred. Thus, it is improbable that a minor inference of
witness bolstering was outcome determinative.

        Moreover, the minimal risk that the jury would improperly rely upon an inference of
witness bolstering was further alleviated by the trial court’s final instructions. Importantly,
“[j]urors are presumed to follow instructions, and instructions are presumed to cure most errors.”
People v Petri, 279 Mich App 407, 414; 760 NW2d 882 (2008). Here, the trial court clearly
instructed the jury that it was responsible for determining issues of credibility and identified
appropriate factors to be considered in evaluating witness credibility. The trial court also
provided an additional cautionary instruction concerning the testimony offered by Bell-Flourry,
Spaythe, and Alvarez:

               You should examine an accomplice’s testimony closely and be very
       careful about accepting it. You may think about whether the accomplice’s
       testimony is supported by other evidence, because then it may be more
       reliable. . . . When you decide whether you believe an accomplice, consider the
       following: Was the accomplice’s testimony falsely slanted to make the Defendant
       seem guilty because of the . . . accomplice’s own interests, biases, or for some
       other reason? Has the accomplice been offered a reward or been promised
       anything that might lead him to give false testimony? . . . In general, you should
       consider an accomplice’s testimony more cautiously than you would of an
       ordinary witness. You should be sure you have examined it closely before you
       base a conviction on it.




                                                -6-
The trial court thus instructed the jury that it was solely responsible for determining the facts,
including the credibility of the witnesses, and to apply special scrutiny to the testimony of
accomplices. The trial court’s instructions were sufficient to protect Husband’s substantial
rights.

       Affirmed.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Anica Letica




                                               -7-
