                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 19, 2015
              Plaintiff-Appellee,

v                                                                    No. 318680
                                                                     Wayne Circuit Court
PHILLIP JOSEPH SWIFT, also known as                                  LC No. 13-005130-FC
PHILLIP JOSEPH SWIFT, JR.,

              Defendant-Appellant.


Before: MURRAY, P.J., and HOEKSTRA and WILDER, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of unarmed robbery, MCL
750.530, and first-degree home invasion, MCL 750.110a(2). Defendant was sentenced as a
habitual offender, third offense, MCL 769.11, to 12 to 30 years’ imprisonment for the unarmed
robbery conviction and 12 to 40 years’ imprisonment for the first-degree home invasion
conviction. Because defendant is not entitled to resentencing and the trial court’s evidentiary
decisions did not deny him the right to present a defense, we affirm.

        Defendant first argues that the prosecution did not provide him with proper notice under
MCL 769.13 of its intent to seek a third habitual offender sentence enhancement under MCL
769.11. Whether the prosecutor fulfilled the statutory requirements of the habitual offender
statute, MCL 769.13, poses a question of law which we review de novo. See People v Hornsby,
251 Mich App 462, 469; 650 NW2d 700 (2002). In relevant part, MCL 769.13 provides:

       (1) In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL
       769.12], by filing a written notice of his or her intent to do so within 21 days after
       the defendant's arraignment on the information charging the underlying offense
       or, if arraignment is waived, within 21 days after the filing of the information
       charging the underlying offense.

       (2) A notice of intent to seek an enhanced sentence filed under subsection (1)
       shall list the prior conviction or convictions that will or may be relied upon for
       purposes of sentence enhancement. The notice shall be filed with the court and
       served upon the defendant or his or her attorney within the time provided in
       subsection (1). The notice may be personally served upon the defendant or his or
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       her attorney at the arraignment on the information charging the underlying
       offense, or may be served in the manner provided by law or court rule for service
       of written pleadings. The prosecuting attorney shall file a written proof of service
       with the clerk of the court.

The purpose of this notice requirement “is to provide the accused with notice, at an early stage in
the proceedings, of the potential consequences should the accused be convicted of the underlying
offense.” People v Morales, 240 Mich App 571, 582; 618 NW2d 10 (2000), quoting People v
Shelton, 412 Mich 565, 569; 315 NW2d 537 (1982). MCL 769.13 has been described as a
“bright-line test” which must be strictly applied, such that the prosecution’s failure to provide
timely notice precludes a sentencing enhancement. Morales, 240 Mich App at 574-575. See
also MCR 6.112(F) and (G). However, if the prosecution merely fails to file proof of service,
this failure constitutes harmless error if the defendant did in fact have notice of the prosecution’s
intent to seek sentence enhancement, and the failure to file proof of service did not prejudice the
defendant’s ability to respond to the habitual offender notification. People v Walker, 234 Mich
App 299, 314; 593 NW2d 673 (1999).

       In this case, defendant was arraigned in circuit court on the felony information on June
13, 2013, meaning that the prosecutor’s deadline to file notice in compliance with MCL 769.13
was 21 days from that date. See People v Williams, 462 Mich 882; 617 NW2d 330 (2000).
Relevant to this obligation, the felony warrant and felony complaint, both filed in the district
court on May 24, 2013, before defendant’s arraignment, contained a written notice of the
prosecution’s intent to seek a sentence enhancement, and this written notice included a listing of
defendant’s prior convictions on which the prosecution intended to rely in seeking sentencing
enhancement. Written notice was also provided in an unsigned copy of the felony information
dated May 24, 2013.1 In short, the prosecutor fulfilled its obligation to provide written notice
within 21 days of defendant’s arraignment as required by MCL 769.13(1).

        On appeal, defendant acknowledges that several documents contained written notice of
the prosecutor’s intent to seek a sentencing enhancement, but he alleges that resentencing is
nonetheless required because these documents were not filed in the circuit court and there is no
proof that he had personal service of this notice at his arraignment or otherwise. We disagree.

        Considering first the prosecutor’s obligation to file written notice with the court, we are
persuaded that the prosecution fulfilled its obligation under MCR 769.13(2). Specifically,
written notice was, as noted, contained in the felony information, warrant, and complaint, which
were all dated May 24, 2013. Consistent with the notice provided by these documents, the lower
court register of actions contains an entry on May 24, 2013 stating: “Habitual Offender.”
Further, after defendant’s arraignment on the warrant in district court, as evidenced by the “bind-
over packet” filed in circuit court on June 10, 2013, the warrant, complaint, and felony
information, along with other district court documents, were then forwarded to the circuit court



1
 The prosecution also later filed a signed, amended felony information on September 3, 2013,
before defendant was sentenced, which contained the same third habitual offender notice.


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on June 10, 2013 and they appear in the circuit court record. Thus, as required by MCL
769.13(2), written notice was filed in the circuit court.

        Regarding defendant’s personal service of notice, as noted, defendant was arraigned on
the felony information on June 13, 2013, and, pursuant to MCR 6.113(B), the prosecutor was
required to give defendant a copy of the information, which in this case included the habitual
offender notice. Defendant waived a formal reading of the information at his arraignment as
permitted by MCR 6.113(B), but it does not follow that he was denied an opportunity to review
the felony information. See generally People v Henry (After Remand), 305 Mich App 127, 159;
854 NW2d 114 (2014). And, it is nevertheless true that defendant had notice of the charges
against him, including the habitual offender enhancement, because this information was
contained in the felony information, warrant, and complaint, to which defendant had access. See
People v Nix, 301 Mich App 195, 208; 836 NW2d 224 (2013); People v Waclawski, 286 Mich
App 634, 707; 780 NW2d 321 (2009). In these circumstances, defendant may not now claim
ignorance of the sentencing enhancement, see Nix, 301 Mich App at 208; and, indeed defendant
does not attempt to deny that he did in fact have actual knowledge of the prosecutor’s intent as
expressed in the warrant, complaint, and felony information.

         At most, fairly read, defendant’s claim on appeal amounts to the assertion that there was
no proof of service in the lower court record as required by MCL 769.13(2). But, any oversight
in this regard constituted harmless error because defendant had notice of the prosecution’s intent
to seek an enhanced sentence under the habitual offender statute and the prosecution’s actions
did not prejudice defendant’s ability to respond to the habitual offender notice. See Walker, 234
Mich App at 314-315. Specifically, notice was provided to defendant in the documents detailed
above, and when the prosecutor noted at sentencing that defendant was a third habitual offender,
neither defendant nor defendant’s attorney challenged the prosecutor’s assertion or claimed a
lack of notice. Based on defendant’s criminal history, the trial court also concluded during
sentencing that defendant was a third habitual offender. Defendant did not challenge the trial
court’s findings in this regard, and he does not argue on appeal that he had any viable challenge
to the habitual offender enhancement. On these facts, the prosecution’s failure to file a proof of
service constituted harmless error. Defendant is not entitled to resentencing.

        Defendant next argues that the trial court abused its discretion when the trial court ruled
that the testimony of defendant’s girlfriend, Samantha Long, regarding her discussions with
Internal Affairs for the Detroit Police Department was irrelevant. Defendant maintains that the
excluded testimony was necessary to rehabilitate Long’s credibility, and that the exclusion of this
evidence denied him the right to present a defense.

        This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of
discretion. People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). In addition, this
Court reviews for an abuse of discretion a trial court’s decision regarding the proper scope of
redirect examination. See People v Stevens, 230 Mich App 502, 507; 584 NW2d 369 (1998);
MRE 611. “The trial court abuses its discretion when its decision is outside the range of
principled outcomes.” King, 297 Mich App at 472. “A preserved trial error in admitting or
excluding evidence is not grounds for reversal unless, after an examination of the entire cause, it
affirmatively appears that it is more probable than not that the error was outcome determinative.”
Id.

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        In general, all relevant evidence is admissible at trial, and a criminal defendant has a right
to “put before a jury evidence that might influence the determination of guilt.” People v Powell,
303 Mich App 271, 277, 279; 842 NW2d 538 (2013) (citations omitted). In contrast, irrelevant
evidence is inadmissible at trial. Id. at 277. See also MRE 402. Evidence is relevant if it “has
‘any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.’ ” Powell, 303
Mich App at 277, quoting MRE 401. “Evidence is ‘admissible if it is helpful in throwing light
on any material point.’ ” Id. (citation omitted). A fact is material if “ ‘it is within the range of
litigated matters in controversy.’ ” Id. (citation omitted).

        At trial, the victim in this case testified that a couple weeks before May 16, 2013, at
Long’s request, he and a friend helped Long dispose of several items in the home Long shared
with defendant, including a stove, refrigerator, and metal coat racks, which they took to a scrap
yard. It was the prosecution’s theory that defendant subsequently went to the victim’s home with
an accomplice on May 16, 2013 and attacked the victim because defendant was angry that items
had been removed from the home. At trial, Long denied asking for the victim’s assistance and
she maintained that the items taken from the home had been stolen by the victim in November
2012. In support, she claimed that she called police on November 6, 2012 to report a robbery
and that, on that date, she and a police officer caught the victim and two other individuals
robbing her home. Long’s testimony in this regard was suspect because, although a police report
was filed on November 7, 2012, in contrast to Long’s testimony, the police report indicated that
the house which had been robbed was unoccupied and that there were no suspects in the
purported robbery.

         Relevant to this line of testimony, the prosecutor questioned Long on cross-examination
regarding the contents of several reports that Long made to the police, including additional
police reports filed against the victim after defendant’s arrest for the present offenses. Defense
counsel then asked Long during redirect examination whether Long had made contact with
anyone in the Detroit Police Department other than the persons with whom Long talked to on the
telephone while filing the reports. Long replied that she had contacted Internal Affairs. The
prosecutor objected to the relevancy of Long’s contact with Internal Affairs. In response,
defendant maintained that Long’s contact with internal affairs would support the assertion that
Long did not contact the police solely because defendant had gotten into trouble and that the
possibility that a police officer had been involved with the November 2012 robbery would
explain why police had not made progress on the investigation. After hearing arguments from
both parties, the trial court determined the internal affairs line of questioning was irrelevant and
it sustained the prosecutor’s objection.

        On the record presented, we conclude that the trial court did not abuse its discretion in
ruling that Long’s testimony regarding the Internal Affairs reports was irrelevant. As the
prosecutor noted at trial, defense counsel did not seek to admit the contents of the Internal
Affairs report into evidence. Instead, defense counsel intended to question Long regarding the
Internal Affairs report in order to point out that Long had made several attempts to contact the
police and that the police were reluctant to investigate her robbery report. However, the fact that
Long had contacted Internal Affairs, and the fact that the police may have been reluctant to
investigate the November 2012 robbery, would not have explained the pertinent discrepancies
between Long’s testimony and the contents of the police reports, meaning this line of

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questioning would not have aided her credibility. Because this testimony did not impact Long’s
credibility or any other material fact at trial, the trial court did not abuse its discretion in ruling
that Long’s testimony regarding the Internal Affairs report was irrelevant.

        Furthermore, even if the trial court did abuse its discretion in ruling that Long’s
testimony regarding the Internal Affairs report was irrelevant, the error was not outcome
determinative. According to defendant, the error was outcome determinative because defense
counsel was unable to bolster Long’s credibility and she was an important alibi witness.
However, as discussed, the testimony would not have aided Long’s credibility because Long’s
contact with Internal Affairs does not explain the discrepancy between Long’s testimony and the
facts she reported to police, and it was these discrepancies which cast doubt on her credibility as
a witness. Furthermore, the exclusion of evidence regarding Long’s contact with Internal Affairs
did not prevent defendant from arguing that the victim stole items from his house, and it did not
prevent defendant from presenting an alibi defense. Indeed, the fact that the police may have
been unresponsive to Long’s robbery claim has no bearing on the ultimate issue of whether
defendant committed the crimes for which he was charged. Therefore, it does not affirmatively
appear that the trial court’s decision to exclude discussion of the Internal Affairs report was
outcome determinative and defendant is not entitled to relief.

       Affirmed.



                                                               /s/ Christopher M. Murray
                                                               /s/ Joel P. Hoekstra
                                                               /s/ Kurtis T. Wilder




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