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March 19, 2026 Get Citation Alerts Download PDF Add Note

People of Michigan v. Andre Elbert Woods

Michigan Court of Appeals

• Citations: None known
• Docket Number: 365084
• Precedential Status: Non-Precedential

• Disposition: Lower Court Judgment/Order Affirmed

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (103K)

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Disposition

Lower Court Judgment/Order Affirmed

Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 19, 2026
Plaintiff-Appellee, 2:40 PM

v No. 365084
Wayne Circuit Court
ANDRE ELBERT WOODS, LC No. 19-005193-01-FC

Defendant-Appellant.

Before: RIORDAN, P.J., and GARRETT and MARIANI, JJ.

PER CURIAM.

Defendant appeals by right his bench-trial convictions of first-degree premeditated murder,
MCL 750.316(1)(a); assault with intent to murder (AWIM), MCL 750.83; carrying a dangerous
weapon with unlawful intent, MCL 750.226; and two counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to
life in prison without the possibility of parole for first-degree murder, 15 to 30 years’ imprisonment
for AWIM, 3 to 5 years’ imprisonment for carrying with unlawful intent, and two years’
imprisonment for each count of felony-firearm. The felony-firearm convictions were to be served
concurrently to one another but consecutive to their corresponding underlying convictions of first-
degree murder and carrying with unlawful intent. We affirm.

I. BACKGROUND

This case arises from the shooting death of Tremon Weaver in the parking lot of a party
store located at the corner of Puritan and Coyle Streets in Detroit on August 26, 2018, at around
3:00 p.m. Multiple eyewitnesses testified about the events in question, and surveillance cameras
in the area also captured some of the events that occurred before and after the shooting. Weaver
and his two friends, Madison Mathis and Gerrod Lark, drove to the party store. Weaver and Lark
went inside the store while Mathis remained in the car. Weaver returned to the car a few minutes
later and, moments after he did so, an individual wearing all black clothing—a hooded sweatshirt,
sweatpants, a facemask, and gloves—ran to Weaver’s side of the car from a black Cadillac parked
nearby and then fired several shots from an assault-style rifle at Weaver through the car window.
At Weaver’s direction, Mathis got out of the car and ran away. Meanwhile, the individual, while

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still shooting toward Weaver’s car, ran back toward (but did not get into) the black Cadillac.
Mathis suffered a wound to her foot because a bullet struck her as she ran. Weaver sustained
multiple gunshot wounds and died from the resulting injuries within a few hours.

Shortly after the shooting, officers canvassed a residential area near the party store in search
of the shooter. Based on surveillance footage from the party store and from multiple homes in the
area, the investigating officers determined that the shooter fled the party store on foot and then ran
through the residential area, discarding the rifle and the hooded sweatshirt in the process. The rifle
was never recovered, but a black hooded sweatshirt was found in a garbage can on the shooter’s
flight path. The surveillance footage from the homes also showed a black Cadillac driving through
the neighborhood multiple times in a period of minutes. The prosecution’s theory at trial was that
an individual in the black Cadillac drove the shooter to the party store and, after the shooter fled
from the party store, drove around the neighborhood looking for him.

The lead investigating detective testified that, within a few hours of the shooting, an
individual dropped off a note at the police station. That individual refused to be identified. The
note’s contents caused the detective to look into certain Facebook and Instagram accounts. The
detective determined that those accounts, and the phone numbers tied to them, belonged to
defendant and Tarlisa Howard, the mother of defendant’s two children. At the time of the shooting,
however, Howard was romantically involved with Weaver. The social media pages contained
photos of defendant with a black Cadillac, as well as photos of defendant wearing pants and a
hooded sweatshirt matching what the shooter had been seen wearing in the surveillance footage.

The detective also obtained phone records for defendant and Howard, which showed that
they had exchanged messages and were in the area around the time of the shooting. The phone
records also showed that defendant had left the area and driven to Kentucky about a day after the
shooting. Approximately a month later, while still in Kentucky, defendant asked Ashley Gibson,
who lived in the state at that time, to drive him in her car back to Detroit so he could attend a
funeral; in exchange, he would give her money to get her car out of an impound lot. Gibson agreed.
After they returned to Kentucky, defendant asked Gibson if she would switch her Ford Fusion for
his black Cadillac because his Cadillac was “too hot” for him to drive. Gibson agreed to this as
well. Defendant was eventually located in Kentucky and extradited back to Michigan to face the
charges in this matter.

At trial, the prosecution also introduced the preliminary-examination testimony of Jordan
McCormick.1 McCormick was Weaver’s friend and knew Howard as Weaver’s girlfriend.
McCormick testified that, a few hours before the shooting, he saw a black Cadillac circling around
his neighborhood, so he followed it to determine who it was. McCormick could not identify the

1
As discussed more thoroughly below, McCormick had testified at defendant’s preliminary
examination, but by the time of trial, he was not willing to cooperate with the prosecution and had
left the state. The prosecution eventually located McCormick in Georgia and served him with a
subpoena, but McCormick failed to appear at trial to testify. Pursuant to the prosecution’s
request—and over defendant’s objection—the trial court deemed McCormick an unavailable
witness and allowed the prosecution to introduce his testimony from the preliminary examination.

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driver, but he described the driver as a black male wearing a dark hooded sweatshirt. He also
identified Howard as the woman in the passenger seat.2 According to McCormick, Howard
appeared angry, and she told him that she was looking for Weaver because Weaver had shot at her
during an argument the night prior. McCormick observed a rifle between the driver and Howard
and that the driver had his hand on the rifle. The prosecution’s theory at trial was that Howard
was the individual who had assisted defendant in the shooting by driving the black Cadillac to pick
defendant up after he fled the scene.3

Defendant want convicted and sentenced as described. This appeal followed.4

II. SEARCH WARRANTS

Defendant argues that the trial court erred by admitting evidence obtained from the
searches of his Facebook accounts, Instagram accounts, and phone records. Prior to trial,
defendant moved to suppress this evidence, arguing that the search warrants were invalid. The
trial court disagreed and denied the motions. Defendant now challenges that conclusion, but we
see no reversible error in it.

A. ADDITIONAL BACKGROUND

Before turning to defendant’s challenges, additional background regarding the warrants at
issue and the trial court’s rulings on defendant’s motions to suppress is in order.5 The affiant for
the search warrants was the lead investigating detective in this case, who had then worked in law
enforcement for more than 19 years. She stated in the affidavits6 that she received information
from multiple named individuals, including several police officers and Mathis, as well as two
anonymous tips from unnamed individuals, and recited the known facts of the shooting. Regarding

2
McCormick did not identify Howard by name but had instead identified her as Weaver’s
girlfriend when police presented him with a photo line-up.
3
Howard was charged in separate proceedings as a codefendant with the same charges as
defendant for Weaver’s shooting. It is unclear from the record before us what the ultimate outcome
of those proceedings may have been.
4
When defendant filed his brief on appeal with this Court, he also filed a motion to remand to the
trial court for an evidentiary hearing regarding his ineffective-assistance claims discussed more
fully below. This Court denied without prejudice defendant’s motion to remand “for failure to
persuade the Court of the necessity of remand at th[at] time.” People v Woods, unpublished order
of the Court of Appeals, entered June 10, 2025 (Docket No. 365084). Upon plenary review, we
continue to see no need for a remand to properly dispose of the claims at issue.
5
Defendant filed five separate motions on the basis of the types of evidence he was seeking to
suppress, but the substance of the motions was the same.
6
The information in the affidavits for each of the search warrants pertaining to the Facebook
accounts, Instagram accounts, and phone records was verbatim the same, save specific references
to the individual social media accounts and phone numbers.

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the anonymous tips, the affiant stated that, at around 8:00 p.m. on the evening of the shooting, she
had received information that an unknown man “came into the [police department] stating ‘these
are the people who killed the guy on Puritan and Coyle[,]’ put a note on the desk and left the
precinct.” The note itself “read ‘go on Facebook’ with names Juss Lashay, Dexter Dre Standalone
and vehicle listed as a black Cadillac.” The affiant’s database search of the provided Facebook
profiles revealed that the profile for “Dexter Dre Standalone” belonged to defendant, that the
profile for “Juss Lashay” belonged to Howard, and that Howard’s profile listed defendant “as her
significant other.” The affiant further stated that, during her investigation, she determined that
Howard was pulled over by officers of the West Bloomfield Police Department on June 28, 2018;
Weaver was with Howard at that time, and Howard identified him as her ex-boyfriend.

The affiant further stated that she reviewed the surveillance footage from a police vehicle
that had responded to the shooting, which depicted a black Cadillac leaving the area shortly after
the shooting, and then visited the residential area near the party store on August 28, 2018, to
“review[] video from the residence cameras.” In one video, the affiant observed “a Black Cadillac
possible CTS with tinted windows pull to the side of the road where victim’s vehicle was parked.”
After the shooting began, “the black Cadillac complete[d] a U turn and fle[d] northbound on
Coyle,” while the shooter fled on foot “with the weapon east from location through the field.” The
shooter, who could be seen wearing dark “sweat type pants, and a dark hoodie, armed with what
appear[ed] to be an assault rifle,” then ran into the backyard of a house on Coyle Street “looking
for a way out, jump[ed] the fence[,]” and then “fled towards Robson east bound with the weapon.”
The affiant stated that, while investigating video footage in the neighborhood, she “received a tip
from a person who wants to remain anonymous who stated that the rumor is the shooter ran to
Robson Street then started walking north towards Florance [sic] while taking off his mask and
hoodie.” Based on that tip, the affiant “then followed the path that [the] offender possibly took,”
and while on Florence Street, she observed a house on Marlowe Street that had surveillance
cameras. The affiant then spoke to the homeowners, who allowed her to review their video footage
from “a short time after the shooting,” which showed “a black male running down the street east
down Florance [sic] on the north side wearing a black T shirt, same type pants looking around,
walking with a limp, and appear[ing] to be out of breath.” The affiant further stated that the video
showed the shooter’s face and that he “resemble[d] [defendant] who was identified through the
tip.”

The affidavits for the social media accounts indicated that, based on the information
summarized above and the affiant’s training and experience, the affiant believed that records from
those accounts would assist in “gathering information in relation to the shooting” that showed “any
indication of conception, planning, commission and/or cover-up of criminal activity and [would]
also provide cellular data connected to the account.” And the affidavits related to the phone
numbers indicated that, based on the same, the affiant believed that the information and phone data
collected from those numbers would assist in gathering evidence demonstrating that defendant
“was at the scene at the time of the Homicide” or demonstrating “any indication of conception,
planning, commission and/or cover-up of criminal activity.” A judge found that the affidavits had
provided sufficient evidence to satisfy the probable-cause standard and issued warrants allowing
officers to search the social media accounts and phone numbers for—and seize, if found—
evidence of defendant’s involvement in the shooting, including photos, posts, messages, and
location data.

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As noted, during pretrial proceedings, defendant moved to suppress the evidence obtained
pursuant to the search warrants issued for the Facebook accounts, Instagram accounts, and phone
records, arguing, in relevant part, that the judge should not have issued the search warrants because
the affiant (1) relied on anonymous information that was not properly investigated and confirmed
to support a probable-cause finding, and (2) included in the affidavits “material omissions,
distortions and falsifications of the information available” to her at the time that were meant to
intentionally mislead the signing judge “into believing there was probable cause” for the
searches—namely, that the affiant could positively identify defendant as the suspected shooter in
the surveillance footage. The prosecution responded, in relevant part, that (1) there was a
substantial basis for a probable-cause finding, and (2) there was nothing indicating that the affiant
had materially omitted information from the affidavits or had distorted or falsified information
contained in the affidavits.

Following an evidentiary hearing, the trial court issued a comprehensive written opinion
and order denying defendant’s motions to suppress. The court found that, when reviewing the
search warrants and supporting affidavits in a common-sense and realistic manner and affording
the signing judge’s probable-cause determination great deference, there was a substantial basis for
a probable-cause finding for each of the warrants. Specifically, the court found that the affiant,
after reviewing the anonymous tips, had conducted an investigation to independently verify the
accuracy and reliability of the information received from those tips; this investigation included
reviewing the surveillance footage that officers had already obtained, revisiting the suspected flight
path of the shooter, speaking to residents on that flight path, reviewing additional surveillance
footage from the time of the shooting obtained while revisiting the flight path, and visually
confirming with the surveillance footage and photos available on social media that the shooter and
the Cadillac seen at the shooting matched the description provided by the anonymous tipsters. The
court concluded that the information in the affidavits tied the alleged offenses to defendant,
Howard, and defendant’s black Cadillac. Relying on much of the same information, the court also
found that the affiant had not made material omissions or otherwise altered the information
contained in the affidavits to intentionally mislead the signing judge.

B. STANDARDS OF REVIEW

“We review a trial court’s findings of fact associated with a motion to suppress evidence
for clear error, but we review de novo both questions of law relevant to the suppression motion
and the judge’s ultimate decision.” People v Robe, 337 Mich App 142, 144 n 2; 972 NW2d 52
(2021). “A finding of fact is clearly erroneous if, after a review of the entire record, an appellate
court is left with a definite and firm conviction that a mistake has been made.” People v Gingrich,
307 Mich App 656, 661; 862 NW2d 432 (2014) (quotation marks and citation omitted). The trial
court’s factual determinations are afforded deference, id., and “[w]e overstep our review function
if we substitute our judgment for that of the trial court and make independent findings,” People v
Stricklin, 327 Mich App 592, 598; 935 NW2d 59 (2019) (quotation marks and citation omitted).

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C. PROBABLE CAUSE

Defendant argues that there was insufficient probable cause to support the search warrants
because the supporting affidavits were based on anonymous tips and the officers’ investigation
into these tips did not sufficiently corroborate the tips’ substance. We disagree.

A search warrant may only be issued if probable cause exists to justify the search. US
Const, Amend IV; Const 1963, art 1, § 11; MCL 780.651(1). Probable cause to issue a search
warrant exists if “there is a substantial basis for inferring a fair probability that contraband or
evidence of a crime will be found in a particular place.” People v James, 327 Mich App 79, 90;
932 NW2d 248 (2019) (quotation marks and citation omitted). A probable-cause determination
must be based on the facts presented to the judge or magistrate by oath or affirmation. People v
Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009); see also MCL 780.651.

Probable cause may be based on information supplied to the affiant by an unnamed person
so long as the affidavit contains sufficient facts “ ‘from which the judge or district magistrate may
conclude that the person spoke with personal knowledge of the information and either that the
unnamed person is credible or that the information is reliable.’ ” James, 327 Mich App at 91,
quoting MCL 780.653(b). When probable cause is averred in an affidavit, “the affidavit must
contain facts within the knowledge of the affiant and not mere conclusions or beliefs.” James, 327
Mich App at 91 (quotation marks and citation omitted); see also MCL 780.653. Although an
affiant “may not draw his or her own inferences” based solely on his or her experience, “the
affiant’s experience is relevant to the establishment of probable cause.” Waclawski, 286 Mich
App at 698. “A warrant may issue on probable cause if the police have conducted an independent
investigation to confirm the accuracy and reliability of the information regardless of the knowledge
and reliability of the source.” Id. at 699 (quotation marks, citation, and alteration omitted).

When there is a challenge to a search warrant, the reviewing court must read the affidavit
in support of the warrant “in a common sense and realistic manner, not a crabbed or hypertechnical
manner.” People v Mullen, 282 Mich App 14, 27; 762 NW2d 170 (2008) (quotation marks and
citation omitted). Accordingly, this Court looks to whether “a reasonably cautious person could
have concluded that there was a substantial basis for the finding of probable cause to issue a search
warrant.” Waclawski, 286 Mich App at 699. Generally, “if a warrant is determined to be invalid
because it lacked a probable-cause basis . . . , any evidence seized pursuant to that warrant . . . is
inadmissible as substantive evidence in related criminal proceedings.” People v Hellstrom, 264
Mich App 187, 193; 690 NW2d 293 (2004). “A magistrate’s finding of probable cause and his or
her decision to issue a search warrant should be given great deference and only disturbed in limited
circumstances.” People v Franklin, 500 Mich 92, 101; 894 NW2d 561 (2017).

In arguing that the officers’ investigation into the anonymous tips was insufficient to verify
the reliability and accuracy of those tips, defendant maintains that the police “could provide no
evidence that the confidential informant[s] had historically been reliable” because they were not
individuals “that the police had worked with in the past.” But, as noted, the officers did not need
to detail the knowledge or reliability of the anonymous source so long as they “conducted an
independent investigation to confirm the accuracy and reliability of the information” provided by
that source. Waclawski, 286 Mich App at 699. And, as demonstrated by the information contained

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in the affidavits at issue, the police in this case had independently confirmed the accuracy and
reliability of the information provided by the unnamed individuals through additional investigation
into that information. See id.

The detective stated in the affidavits that after she had received the first anonymous tip—
which was received only two hours after the shooting and had accurately described the location of
the shooting—she reviewed the Facebook accounts and police databases and, based on that review,
was able to confirm that the Facebook accounts were associated with defendant and Howard. The
detective was also able to confirm, based on the information listed on those accounts and contained
in the police databases, that defendant and Howard were in a relationship and that Howard and
Weaver had previously been in a relationship. The detective also stated in the affidavits that, after
she had received the second anonymous tip regarding the shooter’s flight path, she personally
followed that path, during which time she found and reviewed video surveillance footage of the
suspected shooter from the home on Marlowe Street. The affidavits indicated that the detective
had used photos—which included defendant’s name and had depicted defendant with a black
Cadillac—to identify defendant as both the account-holder for the social media pages and the
suspected shooter, as he had a similar appearance, outfit, and car to the suspect seen on the
surveillance videos. All of this provided more than enough to lead a reasonably cautious person
to conclude that there was a substantial basis for finding probable cause to issue the search
warrants—that is, for inferring a fair probability that evidence of a crime would be found on the
social media accounts and phone numbers as specified. See James, 327 Mich App at 90;
Waclawski, 286 Mich App at 699.

Defendant also argues that the affidavits included false or reckless statements intended to
mislead the signing judge. False statements cannot be used as a basis for a probable-cause finding,
and a defendant may “challenge the truthfulness of an affidavit’s factual statements.” Waclawski,
286 Mich App at 701. That said, the defendant does so “under a difficult standard,” as there is “a
presumption of validity with respect to the affidavit supporting the search warrant,” and the
defendant bears “the burden of showing, by a preponderance of the evidence, that the affiant
knowingly and intentionally, or with a reckless disregard for the truth, inserted false material into
the affidavit and that the false material was necessary to the finding of probable cause.” Id.

Defendant’s sole argument in this regard is that the detective, in identifying defendant as
the suspected shooter in the surveillance video, made a false or reckless statement included only
to mislead the signing judge because the video was “too grainy” and “not clear enough to determine
the individual’s identity.” But the detective did not positively identify defendant as the shooter in
the affidavits; rather, she stated only that the individual she observed in the surveillance video
“resembled” defendant. In any event, there is no reason to believe that the detective’s statement
was false or reckless. The detective stated in the affidavits that, prior to reviewing the video
footage in question, she had personally observed photos of defendant on Facebook and on a police
database while investigating the anonymous tip left at the police station. She was therefore familiar
with what defendant looked like at the time that she reviewed the surveillance footage and would
have been able to determine, with some modicum of reliability, whether the individual seen in the
video resembled defendant. And having reviewed on appeal the video footage in question, it is
unclear why defendant believes that it was “too grainy” for the detective to have been able to
determine whether the depicted individual resembled defendant. On this record, defendant has not
satisfied his burden of showing that the detective “knowingly and intentionally, or with a reckless

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disregard for the truth, inserted false material into the affidavit[s]” and has therefore failed to
establish any error with regard to the affidavits or search warrants. Id.

In sum, we do not see merit in defendant’s challenges to the search warrants and find no
error in the trial court’s subsequent admission of the evidence from the searches at trial.

III. UNAVAILABLE WITNESS

Defendant next argues that the trial court erred by admitting McCormick’s preliminary-
examination testimony at trial under MRE 804(b)(1)7—namely, by concluding that McCormick
was an unavailable witness and that the prosecution had exercised due diligence in attempting to
produce him to testify at trial. Relatedly, defendant argues that the court’s erroneous admission of
McCormick’s testimony violated his confrontation rights.

We review the court’s ultimate decision on whether the prosecution exercised due diligence
in producing a witness for an abuse of discretion. People v Bean, 457 Mich 677, 684; 580 NW2d
390 (1998). We also review the court’s evidentiary rulings for an abuse of discretion. People v
Thorpe, 504 Mich 230, 251-252; 934 NW2d 693 (2019). An abuse of discretion occurs when the
trial court renders a decision that “falls outside the range of reasonable and principled outcomes”
or when the court “makes an error of law.” People v Wisniewski, ___ Mich App __, _; __
NW3d ___ (2025) (Docket No. 361978); slip op at 7. “Preliminary questions of law, including
whether a rule of evidence precludes the admission of evidence, are reviewed de novo.” People v
Burns, 494 Mich 104, 110; 832 NW2d 738 (2013). Whether a defendant’s constitutional right to
confrontation has been violated is also a question of law that is reviewed de novo, meaning that
“we review the issue independently without deference to the lower courts.” People v Washington,
514 Mich 583, 592; 22 NW3d 507 (2024).

The United States and Michigan Constitutions protect a defendant’s right to confront the
witnesses against him. US Const, Am VI; Const 1963, art 1, § 20. “The right of confrontation
[e]nsures that [a] witness testifies under oath at trial, is available for cross-examination, and allows
the [factfinder] to observe the demeanor of the witness.” Washington, 514 Mich at 592 (quotation
marks and citation omitted). In general, this right bars the use of a witness’s testimonial statements
if the witness is unavailable for trial unless the defendant had a prior opportunity to cross-examine
the witness. Crawford v Washington, 541 US 36, 59; 124 S Ct 1354; 158 L Ed 2d 177 (2004). “A
statement is testimonial if it was made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.” Washington,
514 Mich at 592-593 (cleaned up).

The prosecution first experienced problems locating McCormick when he did not initially
appear for defendant’s preliminary examination in July 2019. McCormick, however, eventually
appeared and testified at the examination. About a month before the scheduled trial date in May
2022, the prosecution, through the assistance of the lead investigating detective, began efforts to
locate McCormick. The detective could not find McCormick at his last known address in Detroit

7
Our Supreme Court revised the Michigan Rules of Evidence effective January 1, 2024. See 512
Mich lxiii (2023). We rely on the version of the rules in effect at the time of defendant’s trial.

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and, after further investigation, she eventually determined that he was in Georgia. The prosecution
asked the court to declare McCormick unavailable under MRE 804(a)(5) and admit his testimony
from the preliminary examination. Defendant opposed this and wanted McCormick produced to
testify in person. There were then multiple adjournments to give the prosecution time to produce
McCormick as a witness. Georgia officials assisted the prosecution in locating McCormick and
bringing him to a Georgia court, but he was not held in custody because he had assured the judge
in Georgia that he would voluntarily appear at defendant’s trial in Michigan pursuant to the
prosecution’s subpoena. On the date that McCormick was supposed to testify, however, the
prosecution learned that he had not stayed in the hotel or boarded the flight to Detroit that the
prosecution had arranged for him. The prosecution and the detective thereafter attempted to
contact McCormick to discuss his failure to appear, but McCormick had disconnected his phone
number. The police in Georgia also made several attempts after this to locate McCormick to take
him into custody for failing to comply with the subpoena, but they were never able to locate him.
The trial court eventually found that McCormick was unavailable and that the prosecution had
exercised due diligence to produce him, and it allowed the prosecution to introduce his testimony
from defendant’s preliminary examination at trial.

As noted, defendant first argues that the trial court erred when it found that McCormick
was unavailable to testify because the prosecution did not exercise due diligence to locate and
produce him for trial. According to defendant, the prosecution knew that McCormick was an
uncooperative witness and should have begun to search for him more than a month before the
scheduled trial date.

For a witness to be deemed unavailable under MRE 804(a)(5), “the prosecution must have
made a diligent good-faith effort in its attempt to locate [the] witness for trial.” Bean, 457 Mich
at 684. This test “is one of reasonableness and depends on the facts and circumstances of each
case, i.e., whether diligent good-faith efforts were made to procure the testimony, not whether
more stringent efforts would have produced it.” Id.

We see no error in the trial court’s determination that the prosecution’s efforts to locate
and produce McCormick for trial satisfied this test. Although the record shows that McCormick
was uncooperative early on in the case, he eventually agreed to testify at the preliminary
examination, and there is nothing in the record that indicates McCormick was thereafter going to
leave Michigan and evade testifying as a witness. As soon as the trial court scheduled a start date
for trial—which occurred about one month before the trial began—the prosecution immediately
made efforts to locate and subpoena McCormick.

When it became apparent that McCormick was no longer at his last known address, the
prosecution was given additional time to locate him because defendant—consistent with his
rights—wanted McCormick to testify in person. See generally US Const, Am VI; Const 1963, art
1, § 20. McCormick, however, actively took steps to avoid appearing at defendant’s trial to testify.
When Georgia police found him, he repeatedly made clear to them that he wanted nothing to do
with defendant’s trial. When brought before the court in Georgia, he represented that he would
voluntarily appear to testify in this matter pursuant to the prosecution’s subpoena—which, under
the procedures in place in Georgia, meant that he could not be detained by police in the interim.
The prosecution thereafter provided McCormick with a hotel room and a flight to Detroit so that
he could appear for trial and confirmed with McCormick and his attorney in Georgia that he still

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planned on appearing at trial. McCormick’s representations to the court and prosecution, however,
proved dishonest; he did not appear as promised, and he disconnected his phone number so that he
could no longer be contacted. The Georgia police then made multiple attempts to find McCormick
to take him into custody after he did not voluntarily comply with the subpoena issued by the
Georgia court. While it would have been preferable for McCormick to be taken into custody on a
witness detainer as soon as he was located in Georgia to ensure his appearance at trial, as the trial
court recognized, the prosecution had to abide by the procedures in place in Georgia, which did
not allow for it.

Although it may now seem apparent to defendant, with the benefit of hindsight, that the
prosecution should have done more to keep track of McCormick and produce him as a witness,
the test is whether diligent, good-faith efforts were made to produce a witness, “not whether more
stringent efforts” would have actually produced the witness. Bean, 457 Mich at 684. On the record
before us, we cannot say that the trial court erred by concluding that the prosecution exercised due
diligence in attempting to locate and produce McCormick for trial, see id., and by correspondingly
concluding that McCormick was an unavailable witness under MRE 804(a)(5), see Burns, 494
Mich at 110.

Defendant also argues that even if McCormick was unavailable to testify, the trial court
should not have admitted his preliminary examination testimony under MRE 804(b)(1), and doing
so violated defendant’s confrontation rights, because defendant’s previous attorney did not have a
similar motive when cross-examining McCormick at the preliminary examination as defense
counsel had at the time of trial. We disagree.

Defendant’s arguments on this point focus on the different stakes, strategic judgments, and
burdens of proof that may generally attend a preliminary examination compared to trial. To the
extent defendant suggests that preliminary-examination testimony is per se inadmissible at trial
under MRE 804(b)(1) or the Confrontation Clause due to the general differences between those
stages of proceedings, this Court has repeatedly rejected any such notion. See, e.g., People v
Garay, 320 Mich App 29, 37-39; 903 NW2d 883 (2017), rev’d in part on other grounds by 506
Mich 936 (2020); People v Wood, 307 Mich App 485, 517-518; 862 NW2d 7 (2014), rev’d in part
on other grounds by 498 Mich 914 (2015); People v Garland, 286 Mich App 1, 7; 777 NW2d 732
(2009); People v Adams, 233 Mich App 652, 659-660; 592 NW2d 794 (1999). And defendant
does not identify anything about the particulars of this case that would warrant a different
conclusion.

Defendant’s preliminary examination involved the same offenses for which he was later
tried, and his fundamental interest at the preliminary examination was the same as at trial: to
establish that he was not the individual who committed the shooting. Indeed, at the preliminary
examination, defendant’s attorney cross-examined McCormick about the Cadillac, his ability to
see or identify the driver, and his failure to identify Howard as the passenger when asked to do so
at a previous hearing. Defendant does not argue that the district court limited the scope of this
cross-examination or that his attorney was prohibited from developing any areas of testimony.
And while defendant may now be dissatisfied with the extent to which his attorney cross-examined
McCormick, we fail to see, in that dissatisfaction, any basis to conclude in this case that defendant
lacked the opportunity or a sufficiently similar motive to conduct that cross-examination.
Accordingly, the trial court did not erroneously admit McCormick’s preliminary examination

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testimony at trial under MRE 804(b)(1), and the court’s decision to do so did not violate
defendant’s confrontation rights.

IV. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant next argues that his trial counsel was ineffective for: (1) failing to object to the
hearsay statements that were included in McCormick’s preliminary examination testimony and
admitted at trial, and (2) failing to object to implied hearsay that resulted from the detective’s
testimony regarding the two anonymous tips. Whether counsel was ineffective presents a mixed
question of fact and law, with factual findings reviewed for clear error and questions of law
reviewed de novo. People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018). “The trial
court’s findings are clearly erroneous if this Court is definitely and firmly convinced that the trial
court made a mistake.” People v Shaw, 315 Mich App 668, 672; 892 NW2d 15 (2016).

“To establish ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” Id. This Court presumes counsel was effective, and a
defendant carries a heavy burden to overcome that presumption. People v Muniz, 343 Mich App
437, 448; 997 NW2d 325 (2022). “Reasonable probability means a probability sufficient to
undermine confidence in the outcome.” People v Leffew, 508 Mich 625, 637; 975 NW2d 896
(2022) (quotation marks and citation omitted). The defendant bears the burden of establishing the
factual predicate of his claim. People v White, 331 Mich App 144, 148; 951 NW2d 106 (2020).

A. MCCORMICK’S TESTIMONY

Defendant takes issue with McCormick’s testimony that Howard told him that she was
looking for Weaver because Weaver had shot at her during an argument the night prior. Defendant
posits that, had his counsel objected to this testimony, it would have been excluded as 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 generally inadmissible unless the rules of evidence provide otherwise. MRE 802.
McCormick’s testimony about Howard’s statements to him, however, were not hearsay. MRE
801(d)(2)(E) provides that a statement is not hearsay if it is offered against the opposing party and
it was made by the opposing party’s coconspirator “during the course and in furtherance of the
conspiracy on independent proof of the conspiracy.” For this exception to apply, the proponent of
the statement (1) “must establish by a preponderance of the evidence that a conspiracy existed
through independent evidence,” which may be circumstantial or inferential in nature; (2) “must
establish that the statement was made during the course of the conspiracy”; and (3) “must establish
that the statement furthered the conspiracy,” a requirement that “has been construed broadly.”
People v Martin, 271 Mich App 280, 316-317; 721 NW2d 815 (2006). “A conspiracy exists where
two or more persons combine with the intent to accomplish an illegal objective,” and it continues
“until the common enterprise has been fully completed, abandoned, or terminated.” Id. at 317
(quotation marks and citation omitted)

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Here, Howard was charged as a codefendant in connection with Weaver’s shooting in
separate proceedings. At defendant’s trial, the prosecution’s theory of the case was that Howard
and defendant had conspired, and had thereafter acted together, to shoot Weaver. The prosecution
also put forth independent evidence of this. Weaver’s mother testified that Weaver had an “on
again/off again” relationship with a woman she knew as “Lasha,” who had long red hair and a
phone number ending in 4252, and investigating officers testified that they eventually determined
that that number belonged to Howard. Officers also testified that numerous text messages were
exchanged between Howard’s and defendant’s phone numbers, that both defendant’s and
Howard’s phone numbers were in the area of the shooting at the time of the shooting, that
defendant’s and Howard’s social media accounts indicated that they were in a dating relationship,
and that Howard was the mother of defendant’s two children. Although McCormick could not
identify Howard by name, he testified that the woman in the black Cadillac he had encountered
hours before the shooting had red hair and that he had recognized her as Weaver’s girlfriend. And
although he could not identify defendant as the shooter, McCormick testified that he saw a man in
the driver’s seat wearing dark clothes and a “hoodie,” with his hand on a long gun that was resting
between himself and Howard. Testimony from several eyewitnesses and investigating officers, as
well as some of the surveillance footage, established that a man wearing dark clothing, including
dark sweatpants and a hooded sweatshirt, ran from a black Cadillac toward Weaver’s car with a
long gun to commit the shooting; that a black Cadillac had fled the scene immediately after the
shooting; and that a black Cadillac was seen circling around several times in the neighborhood
where the shooter had fled. This evidence was more than sufficient to establish by a preponderance
of the evidence that defendant and Howard had “combine[d] with the intent to accomplish an
illegal objective,” i.e., fatally shoot Weaver. Id.

It is also clear from this evidence that Howard’s statements to McCormick were made
during the existence and in furtherance of the conspiracy. As discussed, Howard made the
statements while sitting in the passenger seat of a black Cadillac with a dark-dressed man in a
hooded sweatshirt—and a long gun resting between the two of them—in the general area of the
shooting only hours before Weaver was fatally shot. During this time, Howard—who, according
to McCormick, looked and sounded angry at that time—asked McCormick if he knew where
Weaver was, stating that she was looking for Weaver because he had shot at her during an
argument the night prior. Broadly construed, Howard’s statements, which clearly conveyed that
Howard and the man driving the Cadillac were looking for Weaver and why they were looking for
him at that time, advanced the conspiracy because they assisted in obtaining information about
Weaver’s whereabouts so that the fatal shooting could be effectuated. See id. Accordingly,
Howard’s statements were admissible under the coconspirator exception to hearsay, MRE
801(d)(2)(E), and defense counsel cannot be deemed constitutionally ineffective for failing to raise
a fruitless or meritless objection on that basis, see People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010).

B. ANONYMOUS TIPS

Defendant’s claim of ineffective assistance regarding the anonymous tips is also
unavailing. On appeal, defendant does not argue that his trial counsel was ineffective for failing
to object to the admission of the substance of the two anonymous tips as evidence at trial. Indeed,
defendant acknowledges—and the record reflects—that the substance of the anonymous tips was

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not directly admitted as evidence because his counsel objected to their admission and the trial court
ultimately concluded that they constituted inadmissible hearsay. Rather, defendant argues that the
detective’s testimony regarding the tips amounted to inadmissible implied testimonial hearsay, and
his trial counsel was ineffective for failing to object to that testimony. Defendant asserts that he
was prejudiced by any mention of the tips because the court could still infer what information was
conveyed to the detective by the unknown sources, which tainted the court’s ability to accurately
identify the shooter. Defendant opines that this error was “especially pernicious” because the
implied testimonial hearsay effectively circumvented his confrontation rights, as he had no
opportunity to “test the anonymous tipster’s credibility” through cross-examination.

As support, defendant relies on Washington, 514 Mich 583, in which our Supreme Court
addressed whether an officer’s trial testimony regarding a border agent’s statement that he had
acquired a bulletproof vest from the defendant—the basis for the charged offense—violated the
Confrontation Clause because it constituted inadmissible “ ‘implied testimonial hearsay.’ ” The
Court held that the agent’s out-of-court statement was testimonial and that the officer’s testimony
had implicitly introduced the substance of the agent’s statement—that the defendant possessed the
vest when he encountered the agent. Id. at 593-597. The Court further held that the statement was
offered as substantive evidence to prove the truth of the matter asserted, i.e., that the defendant
possessed the vest. Id. at 597-600. The Court concluded that, because the defendant was unable
to test the veracity of the agent’s statement through cross-examination, admission of this implied
testimonial hearsay violated the defendant’s confrontation rights. Id. at 601-604. In so doing, the
Court distinguished People v Chambers, 277 Mich App 1; 742 NW2d 610 (2007), “where the FBI
agent’s statement that identified the defendant in a photograph was merely introduced to explain
why the officers undertook further investigation that led to the discovery of substantive evidence.”
Washington, 514 Mich at 600.

Here, defendant has not shown that the detective impermissibly implied the substance of
the anonymous tips through her testimony. Cf. id. at 593-597, 604. Regarding the first tip, the
detective’s testimony only discussed her investigation of the information provided in the note left
at the police station. Specifically, the detective testified that while she was investigating the crime
scene hours after the shooting, she received information from the police station that “somebody
had came [sic] in and left some information regarding the shooting” and that that information had
led her to further investigate specific social media accounts—“Zusslashay” and
“Dexterdrestandalone”—to determine if there was any “connection” between those accounts and
Weaver. This testimony did not imply that either of those accounts had belonged to the shooter or
had even belonged to defendant, only that they were possibly connected to this case.

The same holds true of the second anonymous tip. There was no testimony offered at trial
regarding what the anonymous resident—or any resident in the area—told the detective during her
follow-up investigation in the neighborhood. The detective only testified that, after reviewing the
surveillance video from the party store, she canvassed the neighborhood in the area she believed
the suspected shooter had fled, and that she had reviewed surveillance video from around the time
of the shooting captured by a house on Coyle Street. The detective further testified that her review
of the surveillance footage from the Coyle Street house led her to continue to canvas the area and
speak to residents in the area. This, in turn, eventually led the detective to a house two blocks east
of Coyle Street on the corner of Marlowe and Florence Streets, where she reviewed more
surveillance video footage captured around the time of the shooting.

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Contrary to defendant’s assertions on appeal, none of this testimony regarding the
detective’s investigation implicitly introduced the substance of the anonymous sources’ statements
as proof of defendant’s guilt. See id. at 593-597. Accordingly, defendant has failed to show that
counsel was ineffective for failing to object on that basis (in addition to the grounds on which
counsel had already successfully objected to the tips’ admission). See Ericksen, 288 Mich App
at 201.8 Furthermore, defendant has failed to show how, had the detective’s testimony regarding
the tips been limited even further than it already had been, a different outcome would have been
reasonably probable in light of the other, untainted evidence of defendant’s guilt. See Shaw, 315
Mich App at 672.

V. SPEEDY TRIAL

Defendant argues, in both his appellate brief and his supplemental Standard 49 brief, that
his speedy-trial rights were violated. In his appellate brief filed by counsel, defendant argues that
he was deprived of his right to a speedy judgment because it took over seven months to complete
his trial. In his Standard 4 brief, defendant argues that his approximately 36-month pretrial delay
deprived him of his right to a speedy trial.

Because defendant did not formally demand a speedy trial or judgment below, this issue is
unpreserved. See People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). Unpreserved
claims of error are reviewed for plain error affecting substantial rights. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). To obtain appellate relief under the plain-error
standard, the defendant must show: (1) an error occurred, (2) the error was clear or obvious, and
(3) the error affected substantial rights. Id. at 763. To satisfy the third element, the defendant
generally must show that the error “affected the outcome of the lower court proceedings.” Id. And
even when these three requirements are met, “[r]eversal is warranted only when the plain, forfeited
error resulted in the conviction of an actually innocent defendant or when an error seriously
affected the fairness, integrity or public reputation of judicial proceedings independent of the
defendant’s innocence.” People v Allen, 507 Mich 597, 614; 968 NW2d 532 (2021) (quotation
marks and citation omitted).

A criminal defendant’s right to a speedy trial is guaranteed by the United States and
Michigan Constitutions, statute, and court rule. See US Const, Am VI; Const 1963, art 1, § 20;
MCL 768.1; MCR 6.004(A). “The time for judging whether the right to a speedy trial has been
violated runs from the date of the defendant’s arrest.” People v Williams, 475 Mich 245, 261; 716
NW2d 208 (2006) (quotation marks and citation omitted). To determine whether a defendant has
been denied the right to a speedy trial, a court must balance the four factors set forth in Barker v
Wingo, 407 US 514, 530; 92 S Ct 2182; 33 L Ed 2d 101 (1972): “(1) the length of delay, (2) the
reason for delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.”
People v Smith, ___ Mich App __, _; __ NW3d ___ (2024) (Docket No. 362114); slip op at 3

8
It also bears noting that our Supreme Court’s decision in Washington, the key authority on which
defendant bases his claim of ineffective assistance, was not issued until well after defendant’s trial.
9
Defendant filed a supplemental Standard 4 brief pursuant to Michigan Supreme Court
Administrative Order No. 2004-6, 471 Mich c, cii (2004).

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(quotation marks and citation omitted).10 When the length of the delay is less than 18 months,
prejudice is not presumed, and the necessity of reviewing the remaining Barker factors depends
on the circumstances of the case. See People v Collins, 388 Mich 680, 688-690; 202 NW2d 769
(1972) (quoting Barker, 407 US at 530, for the proposition that “ ‘[u]ntil there is some delay which
is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the
balance’ ” and noting that a delay of 18 months or more is presumptively prejudicial). But when
the length of the delay has been more than 18 months, “prejudice is presumed, and the burden
shifts to the prosecution to show that there was no injury.” Williams, 475 Mich at 262.

Furthermore, our statutes and court rules recognize that the right to a speedy trial includes
the right to a speedy judgment. MCL 768.1 (providing that an individual is entitled to both “a
speedy trial and determination” and that public officers involved in the case must “bring such case
to a final determination without delay except as may be necessary to secure to the accused a fair
and impartial trial”); MCR 6.004(A) (providing that an individual is entitled to both “a speedy
trial” and “a speedy resolution of all matters before the court”). This Court has also recognized as
much. See People v Hammond, 84 Mich App 60; 269 NW2d 488 (1978). In Hammond, id. at 64-
66, this Court addressed whether the defendant’s trial, which had commenced within six months
of his arrest but still “had not concluded 27 months after arrest,” had violated the defendant’s right
to a speedy trial as a “failure to receive a speedy judgment.” This Court held that the right to a
speedy trial also extends to a speedy judgment or resolution of a case against a defendant. Id.
at 66. This Court reasoned that cases involving an undue delay between the commencement of a
defendant’s criminal trial and the final judgment against him or her were analogous to “cases
involving undue delay between arrest and commencement of trial,” and so although “[s]peedy trial
cases have for the most part focused on either the length of time between the defendant’s arrest
and trial or the length of time between indictment and arrest,” that caselaw—including the four
Barker factors—similarly applied to speedy-judgment claims. Id. at 66-67.

Here, when applying the Barker factors to defendant’s speedy-judgment claim, it is
apparent that defendant cannot show that his right to a speedy judgment was violated. Defendant’s
trial, once commenced, took over seven months to complete. Although this delay was significant,
it is below the 18-month threshold at which prejudice is presumed. See Williams, 475 Mich at 262.
Additionally, the record makes clear that much of this delay was at least partially attributable to
defendant’s actions throughout trial, including multiple adjournments that were either stipulated
to by defendant or the direct result of defendant’s insistence that both McCormick and Mathis be

10
Although defendant, in his appellate brief, urges us to adopt a different standard for this state’s
constitutional right to a speedy trial, Const 1963, art 1, § 20, we must follow the long line of cases
that have adopted the Barker factors when resolving speedy-trial issues raised in this state. See,
e.g., Collins, 388 Mich at 682, 688-695; Smith, ___ Mich App at ___; slip op at 3. See also People
v Armisted, 295 Mich App 32, 53; 811 NW2d 47 (2011) (“[T]his Court is without authority to
reverse decisions of the Michigan Supreme Court.”); MCR 7.215(C)(2) (“A published opinion of
the Court of Appeals has precedential effect under the rule of stare decisis.”).

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produced to testify at trial in person.11 See Cain, 238 Mich App at 113; Hammond, 84 Mich App
at 67. The remainder of the delay is “technically attributable to the prosecution” because it was
the result of matters such as scheduling delays and docket congestion “inherent in the court
system,” but those delays “are given a neutral tint and are assigned only minimal weight” in the
speedy-trial analysis. Smith, ___ Mich App at ___; slip op at 3 (quotation marks and citation
omitted). And defendant did not assert his right to a speedy judgment, which weighs against him.
See Williams, 475 Mich at 263.

It is also apparent that, when applying the Barker factors to defendant’s speedy-trial claim,
the pretrial delay did not violate defendant’s speedy-trial rights. Defendant was arrested in May
2019, and his trial did not commence until May 2022, resulting in approximately a 36-month delay.
This delay is certainly significant and well more than the 18-month threshold at which prejudice
is presumed. See Williams, 475 Mich at 262. But at least 18 months of the pretrial delay is
attributable to defendant due to his significant pretrial motion practice, which included a motion
to quash the information, a motion by his counsel to withdraw, three motions in limine, at least
five motions to suppress evidence, and motions for bond reduction or for pretrial release, as well
as his decision to waive a jury trial and instead proceed with a bench trial. See Cain, 238 Mich
App at 113; Hammond, 84 Mich App at 67. A few months of the delay are attributable to the
prosecution due to its motion practice, and some of the remaining portion of the delay is
“technically attributable to the prosecution” because it was the result of matters such as scheduling
delays and docket congestion “inherent in the court system.” Smith, ___ Mich App at __; slip op
at 3. But an overwhelming majority of the remainder of the pretrial delay was due to the COVID-
19 pandemic, which is “not attributable to the prosecution for purposes of a speedy-trial claim,”
id. at __; slip op at 5. And, as with his speedy-judgment claim, defendant did not assert his right
to a speedy trial, which weighs against him. See Williams, 475 Mich at 263.

Finally, regarding prejudice as to both of defendant’s claims, a defendant may experience
two types of prejudice: “prejudice to his person and prejudice to the defense.” Williams, 475 Mich
at 264 (quotation marks and citation omitted). Although both types must be considered, “the most
serious inquiry is whether the delay has impaired the defendant’s defense.” People v Simpson,
207 Mich App 560, 564; 526 NW2d 33 (1994). This is because “the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Williams, 475 Mich at 264
(quotation marks and citations omitted).

In his appellate brief, defendant fails to explain how he was prejudiced by the length of
time it took to complete his trial, other than claiming he suffered additional stress while waiting in
jail during the time his trial was pending. Similarly, in his Standard 4 brief, defendant primarily

11
The issues surrounding McCormick’s availability were already discussed supra. Regarding
Mathis, the record reflects that trial had been adjourned for about two months, in part, because
Mathis was sick from COVID-19 and unavailable to testify in person as a result, but defendant
still wanted live testimony from her. The trial was later adjourned twice more, for a total of almost
three months, because Mathis was recovering from injuries resulting from a serious car accident
and was therefore again unavailable to testify in person, but defendant objected to having her prior
testimony read into the record or allowing her to testify via Zoom in lieu of live testimony.

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asserts that he was prejudiced by the length of the pretrial delay because he had to wait in jail
during that time, which caused him significant anxiety and “extreme emotional distress.” While
we do not doubt that defendant may well have experienced anxiety and emotional distress from
his incarceration throughout the proceedings, that “alone cannot establish a speedy-trial violation.”
Smith, ___ Mich App at ___; slip op at 6. And although defendant, in his Standard 4 brief, attempts
to argue that he suffered prejudiced to his defense by asserting that there were several exculpatory
witnesses, including Howard and some of Howard’s friends, that could not testify at his trial, he
fails to explain how their testimony would have been exculpatory or how their absence at trial was
due to the delay. Nor does defendant offer anything to suggest that he had ever intended to call
these individuals as witnesses at trial. On this record, we cannot conclude that defendant has
shown he suffered any prejudice to his defense, let alone prejudice sufficient to entitle him to relief.
See People v Chism, 390 Mich 104, 115; 211 NW2d 193 (1973) (“[O]n the matter of prejudice to
[the] defendant because of the length of time before his trial, the most important thing is that there
is no evidence that a fair trial was jeopardized by delay[.]”). Accordingly, defendant’s claims of
speedy-judgment and speedy-trial violations fail. See Williams, 475 Mich at 262; Collins, 388
Mich at 688-690.

VI. RIGHT TO A JURY TRIAL

Related to his claim of a speedy-trial violation, defendant, in his Standard 4 brief, argues
that the long delay in bringing his case to trial is what caused him to waive his right to a jury trial
and instead agree to a bench trial, so that his case would be heard sooner. Thus, defendant argues,
his waiver of a jury trial was involuntary, and the trial court erred by accepting the waiver.
Ordinarily, we review a trial court’s determination regarding whether a defendant validly waived
his constitutional right to a jury trial for clear error. People v Lafey, ___ Mich App __, _; __
NW3d ___ (2024) (Docket No. 361936); slip op at 5. But because defendant failed to preserve
this constitutional issue by raising it in the trial court, we review it for plain error affecting
substantial rights. See id. at ___; slip op at 5; see also Carines, 460 Mich at 763-764.

At a review hearing in February 2022, defense counsel presented to the trial court a
document waiving a trial by jury and electing to instead be tried without a jury, which had been
signed by defendant shortly before the hearing. Defense counsel explained that “it was
[defendant’s] initial idea to proceed by bench trial,” and because this was a decision that he left to
defendant’s discretion, he had given defendant “a few weeks to [thoroughly] think about” it.
Counsel stated that, after he had given defendant that time to consider his decision, it was, “in fact,
[defendant’s] demand [that] this case proceed by a bench trial.” Counsel nonetheless asked the
court “to make sure it’s [defendant’s] voluntary decision to do this,” so the court placed defendant
under oath and questioned him about his waiver. In response to the court’s questions, defendant
informed the court that he understood that he had the constitutional right to a jury trial; that he
wanted to waive this right and had signed a waiver form to do so; that he made that decision of his
own free will; that no one threatened or forced him to waive his right to a jury trial; and that nobody
promised him any particular result if he waived his right to a jury trial. After confirming with the
parties that neither objected to a waiver, the court found that defendant had knowingly and
voluntarily waived his right to a jury trial in accordance with our statutes and court rules.

“A criminal defendant has a constitutionally guaranteed right to a jury determination that
he is guilty beyond a reasonable doubt,” but “with the consent of the prosecutor and the approval

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of the trial court, a defendant may waive his right to a jury trial.” People v Cook, 285 Mich App
420, 422-423; 776 NW2d 164 (2009); see also US Const, Am VI; Const 1963, art 1, § 20. “To
validly waive the right to a jury trial, that waiver must be both knowingly and voluntarily made.”
Lafey, ___ Mich App at ___; slip op at 5 (quotation marks and citation omitted). MCR 6.402
governs such a waiver and provides, in relevant part:

(B) Waiver and Record Requirements. Before accepting a waiver, the court must
advise the defendant in open court of the constitutional right to trial by jury. The
court must also ascertain, by addressing the defendant personally, that the defendant
understands the right and that the defendant voluntarily chooses to give up that right
and to be tried by the court. A verbatim record must be made of the waiver
proceeding.

“Complying with the requirements of MCR 6.402(B) creates a presumption that a defendant’s
waiver was voluntary, knowing, and intelligent.” Lafey, ___ Mich App at ___; slip op at 6
(quotation marks and citation omitted).

The record in this case supports that defendant knowingly, voluntarily, and intelligently
waived his right to a jury trial. Defense counsel indicated that the idea to waive the right to a jury
trial was first raised by defendant, that he gave defendant additional time to further consider that
decision, and that defendant still wished to waive his right to a jury trial and had signed the waiver
form indicating as much shortly before the review hearing. Then, in accordance with MCR
6.402(B), the court placed defendant under oath and questioned him to determine if his waiver was
knowing and voluntary, during which time defendant testified that he was not threatened or forced,
and had instead chosen, to waive a jury trial, despite knowing that he had the constitutional right
to one. And even if the pretrial delays—which, as discussed above, did not amount to a speedy-
trial violation—somehow factored into defendant’s decision to waive a jury trial, defendant fails
to explain how that, in itself, would demonstrate that the court should not have accepted his waiver.
Accordingly, on this record, defendant has not shown that the trial court plainly erred by accepting
his waiver of a jury trial. See id. at ___; slip op at 5, 8.

VII. PUBLIC TRIAL

Defendant also argues in his Standard 4 brief that he was denied a public trial. Because
defendant failed to raise an objection on this ground below, this issue is unpreserved and thus
reviewed for plain error affecting substantial rights. See People v Davis, 509 Mich 52, 64-65, 67-
68; 983 NW2d 325 (2022).

“Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a public trial.” Id. at 66, citing US Const, Am VI; Const 1963, art 1, § 20.
This requirement “is for the benefit of the accused,” as it ensures a fair trial by seeing to it that the
presiding judge and the prosecution carry out their respective duties responsibly. Id. (quotation
marks and citation omitted). A public trial also “encourages witnesses to come forward, and
discourages perjury.” Id. “Despite serving these important interests, the public-trial right is not
unlimited, and circumstances may exist that warrant the closure of a courtroom during any stage
of a criminal proceeding.” Id. To justify closure of the courtroom, however, “there must be an
overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to

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protect that interest, the trial court must consider reasonable alternatives to closing the proceeding,
and it must make findings adequate to support the closure.” Id. at 66-67 (quotation marks and
citations omitted). See also generally MCR 8.116(D) (setting forth procedures for courts to follow
when limiting access to court proceedings).

Although it is somewhat unclear, defendant appears to argue that he was denied a public
trial because, after hearing the parties’ closing arguments but before adjourning to review the
evidence to make its findings, the court stated that it was seeing some of the trial exhibits for the
first time because they were admitted as evidence in an “exhibit book,” but not “published during
the trial.” It is unclear how this comment in itself establishes that defendant was denied his right
to a public trial. And when looking at this comment in context, the court indicated that it had
admitted a “large amount of evidence” throughout trial, some of which the court had not yet had a
chance to fully review simply because it had not been published before closing arguments, but that
the court had taken “voluminous notes” throughout trial so that it could more thoroughly review
all of the properly admitted evidence before rendering a verdict. Indeed, the court made clear that
it had intentionally waited until the end of the trial to go through those items, which were compiled
for the court into an exhibit book. Importantly, it is clear from the court’s statements that even if
certain admitted evidence was not published for the court to see during the parties’ cases-in-chief,
those pieces of evidence were nonetheless published for it to see during closing arguments. It is
therefore apparent that the public could view that evidence at the same time that the court did.
Furthermore, defendant does not assert that the court had ever closed the courtroom, nor is there
anything in the record to suggest that the court had closed the courtroom or otherwise made
defendant’s trial proceedings unavailable to the public at large. Accordingly, defendant has not
demonstrated that he is entitled to relief on this basis. See Davis, 509 Mich at 64-65, 67-68.

VIII. NEWLY DISCOVERED EVIDENCE

Finally, defendant argues in his Standard 4 brief that he is entitled to a new trial, or at
minimum an evidentiary hearing, because he has newly discovered evidence from Lark identifying
somebody else as Weaver’s shooter. A new trial may be granted on the basis of newly discovered
evidence if the defendant shows 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 Cress, 468 Mich 678, 692; 664 NW2d 174
(2003) (quotation marks and citations omitted). Because defendant failed to move for a new trial
on this basis, this issue is unpreserved and is thus reviewed for plain error affecting substantial
rights. People v Cox, 268 Mich App 440, 450; 709 NW2d 152 (2005).

Defendant has not shown that he is entitled to a new trial on this basis. To start, defendant
has not properly shown that Lark actually has offered new proposed testimony that someone else
was responsible for the shooting. Although defendant suggests that Lark signed an affidavit
detailing his new proposed testimony, neither that affidavit nor any other offer of proof has been
presented to this Court. In any event, Lark had been a known witness since the start of this case
and was, in fact, called as a witness at trial—he was simply held in contempt for refusing to answer
questions about the shooting and instead asserting his right to remain silent under the Fifth
Amendment, despite the trial court ordering him to answer because his responses did not expose
him to possible criminal liability. Defendant has not explained why Lark’s more recent availability

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makes his proposed testimony newly discovered evidence that could not have been produced
earlier through reasonable diligence. See Cress, 468 Mich at 692. Additionally, per defendant’s
argument, Lark’s purported new testimony is based on his apparent decision to no longer assert
his constitutional right to remain silent—a decision that did not occur until well after trial
concluded and therefore would not support the grant of a new trial. See People v Rogers, 335
Mich App 172, 195-196; 966 NW2d 181 (2020). Such testimony cannot be considered newly
discovered, but rather, at best, newly available, which is insufficient to warrant a new trial. See
Cress, 468 Mich at 692; People v Terrell, 289 Mich App 553, 567-568; 797 NW2d 684 (2010).
Accordingly, defendant has not shown that he is entitled to relief under the plain-error standard.
See Cox, 268 Mich App at 450.

Affirmed.

/s/ Michael J. Riordan
/s/ Kristina Robinson Garrett
/s/ Philip P. Mariani

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