PEOPLE OF MI V SHAWNDALE MARQUISE CLARK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 4, 2009
Plaintiff-Appellee,
v
No. 281386
Jackson Circuit Court
LC No. 05-001213-FC
SHAWNDALE MARQUISE CLARK,
Defendant-Appellant.
Before: Bandstra, P.J., and Whitbeck and Shapiro, JJ.
PER CURIAM.
Defendant Shawndale Marquise Clark appeals as of right his conviction for felony
murder predicated on first-degree child abuse.2 A jury convicted Clark, and the trial court
sentenced him to life in prison without parole. Clark’s judgment of sentence reflects that the jury
also convicted him of manslaughter3 and first-degree child abuse. The trial court vacated these
sentences in sentencing Clark for the felony murder conviction. We affirm.
1
I. Basic Facts And Procedural History
This case arises out of the death of a 14-month-old child, Amaree Mathis, during the late
night hours of June 16, 2005, or early morning hours of June 17, 2005. Mathis testified that
Clark was the child’s father and that Clark had just moved into her apartment one week before
June 16, 2005. Mathis normally worked a 4:00 p.m. to 12:00 a.m. shift, and, on the evening of
June 16, she and Clark decided that Clark would take care of the child when Mathis went to
work because the child was not feeling well. Before that, Clark had not spent any evenings alone
with the child since he moved in. According to Mathis, the child was in Clark’s care “times and
times” before, but not for this length of time.
Mathis and Clark called each other over the telephone while she was at work that night
approximately five to eight times. During a telephone conversation at 6:00 or 6:30 p.m., Clark
1
MCL 750.316(1)(b).
2
MCL 750.136b(2).
3
MCL 750.321.
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stated that the child received a rug burn on her forehead while playing a game, which Mathis
described as, “[the child] would crawl away on the floor and you’d crawl right behind her and
pull her legs back and she would kind of giggle and laugh.” Mathis indicated that she once gave
the child a small rug burn while playing that game on a previous occasion. At approximately
8:30 p.m., during another telephone conversation, Clark stated that he gave the child a bath and
she fell and “hit her head or her lip in the bath.” According to Mathis, Clark did not seem upset.
Mathis also said that Clark told her that he put the child to bed at approximately 10:00 p.m.
Mathis testified that she arrived home from work at 12:15 a.m. and “peeked in” on the
child to make sure she was okay. The child was lying on her stomach facing the wall. Mathis
saw the rug burn “briefly,” but she did not “go in and look extensively at it.” She testified
that“[t]he [rug burn] on the forehead seemed like it was a lot bigger” than the rug burn she had
previously given the child. Mathis then changed her clothes and left to meet up with some
friends at a bar. When Mathis arrived home again, Clark was asleep on a chair in the living
room. According to Mathis, Clark was “semi-conscious” and told her that the child “was okay
and that’s about it.” Mathis testified that she again “peeked through the crack in [the child’s]
door,” and the child “looked like she was still sleeping”; the child was in the same position she
had been before, facing the wall. Mathis testified that while she was using the bathroom, she
heard “a little noise” or a “peep” from the child. Mathis was familiar with the noise because she
heard that noise before when the child was having a dream. Mathis said she fell asleep in the
living room on the couch and did not speak with Clark.
According to Mathis, shortly after waking up the next morning, Clark “started yelling my
name from [the child’s] room. So, I went into [the child’s] room and saw that she was cold and
stiff, so I ran to the living room and got the phone.” According to Mathis, the child was “very
blue” and in the same position she had been the previous night. Mathis called 9-1-1, and Clark
carried the child from the bedroom to the living room, where he laid her on the floor, and Mathis
“tried to give her mouth to mouth and we covered her up with blankets.” Cardiopulmonary
resuscitation could not be administered because the child’s mouth could not be opened. Mathis
testified that she noticed the marks and bruises on the child’s face when Clark brought her into
the living room, but “didn’t really think much of them.” She testified that these marks were not
present on the child when she left for work on June 16. According to Mathis, before June 16, the
child had a “very tiny” bruise “above her [left] ear,” but Mathis did not know how it happened
and estimated that it occurred “probably a couple weeks before.”
According to Mathis, Officer Paul Long then arrived and assisted the child. Mathis
testified that when Officer Long was there, Clark “was crying, frantic[,]” and yelling. Officer
Long testified that he saw Clark sitting on the floor near the child and yelling, “[h]elp my baby.”
When Officer Long told Clark that there was nothing he could do, Clark “picked up the child,
attempted to do mouth to mouth and set [the child] back down.” Officer Long determined that
the child “had been deceased for quite some time.” Officer Long asked Clark about the red
marks on the child’s face, and Clark told him the marks were from “playing with the child,
pulling the child on the rug.” Officer Long questioned Clark about what happened to the child
before she went to bed. Clark told Officer Long about playing the game and getting the marks
on her face, that he fed the child at 6:30 or 7:00 p.m., and put her to bed at 9:00 or 9:30 p.m.
Clark did not mention giving her a bath or that she had hit her head in the bathtub. Officer Long
testified that Mathis’s demeanor was “like nothing happened” or she was in a state of shock, but
that Clark was upset and agitated.
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During an initial interview with Officer Christopher Boulter, Clark told Officer Boulter
that two of the injuries to the child’s forehead occurred while he was playing with the child.
Clark indicated that he did not realize that the child had injured herself right away because she
laughed and did not fuss, but after the second rug burn, he stopped the game. Clark also told
Officer Boulter that the child had injured her lip on the bathtub: “she was playing and . . . , he
was trying to get her in the towel and that she had run back into the bathroom like she wanted to
get back into the tub and that she had fallen and hit her mouth on the side of the tub.”
Dr. Ruben Ortiz-Reyes performed an autopsy on the child on June 17, 2005. Dr. OrtizReyes, informed Officer Boulter that he had classified the child’s death as a homicide, and
Officer Boulter informed the prosecutor’s office. Officer Boulter then asked Clark to return for a
second interview. According to Officer Boulter, Clark
was unsure how the third [rug burn] had actually occurred. He didn’t have an
explanation, or [sic] he didn’t have an explanation for the injury under the eye or
the smaller injuries. . . . And then later on he told me that the injury, he believed
to the back of the head, after we had explained where on the head it was, was
from a slip and fall in the tub.
Clark denied that he ever hit or otherwise abused his daughter, and did not change his story that
he did not hurt the child.
With respect to the child’s autopsy, Dr. Ortiz-Reyes testified that he observed multiple
injuries on the child’s head. Viewing the photograph of the child’s face, Dr. Ortiz-Reyes
testified that there were three abrasions on her face and that an abrasion is usually “caused when
there is a rubbing of the skin on a rough surface.” According to Dr. Ortiz-Reyes, the abrasion
injuries could have been caused by a rug burn or by blunt trauma. There were several bruises on
the child’s face as well. A different photograph depicted a bruise “in the lower area of the sclera.
Sclera is the white area of the eye . . . there’s some hemorrhage here.” The possible cause of the
bruise was “trauma.” The next photograph showed the bruise on the child’s lip and lacerations
inside of the right side of the child’s upper lip, which injury was caused by trauma. Dr. OrtizReyes noted that there was an abrasion on the left upper area of the child’s forehead. The bruises
on the “area of the cheek and chin [] were suggestive of somebody putting the hand on [sic].”
However, Dr. Ortiz-Reyes admitted that it was possible that the bruises were also consistent with
making contact with the bathtub. Dr. Ortiz-Reyes also testified that there was another abrasion
by the child’s clavicle. Viewing a photograph of the back of the child’s head, Dr. Ortiz-Reyes
indicated that there was “an impact on the top of the head. You’ve got . . . there is an impact.
There is an abrasion there.” Dr. Ortiz-Reyes explained that this would be caused by “either [] an
object throwing [sic] to the kid or the kid thrown into a fixed object.” Dr. Ortiz-Reyes testified
that it is possible that the injury on the crown of the head was caused by a rear fall, but the injury
was not consistent with a rear fall. The injury to the top of the child’s head was not consistent
with slipping and falling in the bathtub: “the extent of this injury has to be something really,
really hard in order to have this amount of injury.” Based on his external examination of the
child, Dr. Ortiz-Reyes testified that:
With all of those injuries . . . , my first thought was that something’s wrong, [sic]
was going on with this baby because there were too many injuries around the head
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and at the face and I was suspecting to see something else during my internal
examination.
Dr. Ortiz-Reyes then explained his findings from the internal examination of the child’s
brain. The child had a subcutaneous hemorrhage on her skull, or a suprascapular hemorrhage,
which was below the bruise or abrasion on her scalp, and below the hemorrhage was the bone of
the skull. The hemorrhage corresponded to the external injury that Dr. Ortiz-Reyes observed.
Dr. Ortiz-Reyes further testified that, inside of the child’s skull, “what you can see here is that
there is a lot of hemorrhage here, recent hemorrhage that look [sic] like a jelly like.” The
subdural hemorrhage was recent because “the blood is not attached still to the structures, it’s
easily removed at the time of examination.” According to Dr. Ortiz-Reyes, a photograph showed
blood clots from the subdural hemorrhage and the hemorrhage was caused by the trauma to the
child. In another photograph where the child’s brain was removed, Dr. Ortiz-Reyes noted that
“there’s still a lot of the clots that are left from the subdural hemorrhage that are going down into
the base of the skull.” The child’s brain would have been a tan color if there were no trauma, but
the trauma caused the brain to be a red color. Dr. Ortiz-Reyes indicated that the photographs
only showed one color of blood, which indicates that the bleeding was not rebleeding from an
old injury. According to Dr. Ortiz-Reyes, the internal examination findings were consistent with
the findings from the external examination of the child’s body.
Based on the level of hemorrhage in the brain, Dr. Ortiz-Reyes opined that there was
“really strong trauma there,” indicating that “either some object that was thrown directed to the,
to the head, or the kid, forced the kid into something that was hard enough in order to cause this
trauma.” Dr. Ortiz-Reyes explained:
[T]o begin there is an abrasion on top of the head, this is beside the bleeding one.
Second, going down, it is subcutaneous hemorrhage that was on top of the head
that we see the area of extension of the trauma. And then the internal hemorrhage
that is going to be secondary to rupture of the little vessels that are in the brain
that are called braging (ph) vessels. These vessels go from the dura to the, to the
brain and when trauma comes it tears the vessels and that in turn [sic] they are
ruptured and the bleeding starts.
It depends on how hard the impact is, there is going to be a lot of destruction of
the structures and a lot of hemorrhage is going to accumulate as in this case.
Dr. Ortiz-Reyes concluded:
Because the amount of blood that was accumulating there, the brain was pushed
down; because the brain has to have a certain amount of space in order to
function, but if it is pushed down there is going to be compression of the base of
the brain and then is [sic] going to be difficulty breathing and then dies [sic].
Dr. Ortiz-Reyes opined that from the time of impact to the head, it would take “seconds
to minutes” for death to occur. Dr. Ortiz-Reyes testified that he could not give a specific time,
and “seconds to minutes” could mean a few seconds to several days. Dr. Ortiz-Reyes explained,
however, that the blood clots in the child’s brain were of recent origin. He testified that he
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declared the time of death to be 6 to 12 hours before the police and emergency medical services
arrived at the child’s home and pronounced her dead.
Dr. Ortiz-Reyes opined that the child in this case “couldn’t do [the injury] by herself.
Somebody else has had [sic] to do it. So, it was classified as a homicide.”
It’s the extent of injuries. If a kid had this extent of injury . . . had more injuries
around the face according to my review of the records, this kid was seen by a
pediatrician the day before and she didn’t have no [sic] injuries. So, in order to
have injuries everywhere, something had to happen here.
***
[T]here was so much trauma all around the head to say that this kid did it by
herself. I agree that kids fall often, some are more clumsy than others. But, I
haven’t seen this . . . some kids that have all these injuries done by herself in a
short period of time.
Dr. Ortiz-Reyes admitted that there was a theory in forensic pathology called short-term
fall trauma, where an individual sustains a fatal brain injury from falling from a short distance.
However, according to Dr. Ortiz-Reyes, this is rare. Dr. Ortiz-Reyes also testified that, with the
type of injury to the child’s head, it was possible that the child experienced seizures, and that
during a seizure, the individual could bruise, scratch or abraze herself. He said, however, that
the child’s facial and head injuries were not consistent with injuries caused by a seizure.
Dr. Ortiz-Reyes also found an injury to the posterior side of the child’s left lung. He
opined that the injury was caused by “trauma with something blunt, something that could have
this configuration, like round.” According to Dr. Ortiz-Reyes, “[The injury was] in the left lower
back. Something has to hit in that area, either [sic] stationary object or some object that was
coming to hurt that area in order to cause that bleeding there.” There was no external injury
corresponding to the internal lung injury, but “[s]ometimes it happens.” The lung injury was a
bruise and the impact to cause the injury would have “to be hard. Because it’s [sic] deep
structure.” The injury could have caused the child discomfort, but Dr. Ortiz-Reyes could not rule
out the possibility that the lung injury could have been caused if the child had a seizure after
sustaining the head injury.
Dr. Stephen Cohle, a forensic pathologist for Spectrum Health Hospital in Grand Rapids,
also testified as an expert witness for the prosecution. Dr. Cohle concluded that the child’s death
was a homicide caused by the internal head injury. According to Dr. Cohle, the abrasions on the
child’s forehead could have been rug burns, but “it would take a considerable amount of force”
to make them:
Either, perhaps someone pushing the child’s head down on the carpet, then
pushing the child’s head forcefully one way or another, or dragging the child for
quite a distance. In other words, what I’m trying to distinguish here is a short, if a
child falls on a run of if in play a child maybe, an older person grabs the child’s
legs and gently pulls the child for a few inches along the carpet, these are not
gonna result. These are more severe, indicating to me there are longer period of
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time where the child is dragged or more force, such as the child’s head is forced
into the carpet and then pulled along.
Dr. Cohle further identified the bruising and laceration on the right side of the child’s lip
and testified that falling in the bathtub, if the child did not “reflexively try to use her hands to
stop the fall,” could cause that injury. Dr. Cohle opined, however, that the bruises on the right
side of the child’s chin, her right temple in front of her ear, and her right cheek, along with the
lip injury, were caused by blunt force trauma. The injuries along the right side of the child’s face
would require “multiple different blows” because “they’re separated . . . by lots of uninvolved
skin” and the “surface against which she fell, would have to have, for example a protrusion that
would hit her in the forehead and then maybe another couple of inches away, another protrusion
and then another[,]” and it was “extremely unlikely” that it was caused by a bathtub. Dr. Cohle
agreed that the child’s head was smaller than an adult head and that her softer skin would slightly
increase the tendency for abrasions and bruises to occur.
Dr. Cohle also testified that the abrasion on the back of the child’s head corresponded to
the bruising that was located beneath the scalp. The underlying bruising was larger than the
abrasion, and the abrasion was consistent with one blow, although “the extent of the bleeding
beneath the scalp . . . suggests that there were [sic] probably more than one [blow].” The
abrasion indicated that her head struck “a rather rough object.”
Dr. Cohle also did not see any evidence that there was an older hemorrhage and then
rebleeding. Dr. Cohle testified that the rebleeding theory “from a [old] subdural [hemorrhage] in
my opinion is not a viable theory to explain a massive fatal subdural hemorrhage.” Dr. Cohle
testified that the child’s hemorrhage was recent based on the color of the blood. It was recent
because “a fresh hemorrhage on the surface of the brain is loose and is not adherent to the dura.”
Dr. Cohle also testified that Dr. Ortiz-Reyes’ autopsy report contained no mention of finding old
bloodstains; Dr. Ortiz-Reyes’ report indicated he examined brain tissue under a microscope and
“did not see any old hemorrhage.”
Dr. Cohle opined that the child’s internal head injury was not consistent with slipping and
falling in the bathtub because “there would [not] be enough force generated from a fourteen
month old falling in the bathtub to cause a fatal head injury. I don’t think she would have any
significant injury at all.” Dr. Cohle testified that a normal child would not sustain a fatal head
injury from a trivial fall. However, Dr. Cohle also testified on cross-examination that “children
can get injuries out of short falls.” He was familiar with studies finding that children died
because of short falls where they sustained brain injuries, although Dr. Cohle has never
performed an autopsy on a short-fall injury case. Dr. Cohle testified that he could not say
definitively that the cause of the brain hemorrhage was just the blow to the back of the head,
without contribution from the blows to the front of the head.
Dr. Cohle also testified that the child’s lung showed a hemorrhage, and he believed that
blunt force trauma caused the injury. It was unusual that there was no surface injury to the
child’s back over the lung injury site, but the injury was “more consistent with an injury than it is
an aspiration,” where blood gets into the lungs.
Clark presented his own expert witness, Dr. Bader Cassin. Dr. Cassin reviewed the
police investigation, Dr. Ortiz-Reyes’ autopsy report, the slides from the autopsy, and
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photographs of the scene and the child’s body. He opined that the child’s death was unnatural
and was caused by the injury to her head. Dr. Cassin explained that a short-fall injury means
“falls that occur somewhere within [a child’s] height elevation, or in general not exceeding about
twelve feet or so.” This was a “subject of study,” and not a theory, in forensic pathology, and it
has been proven that “[s]hort fall injuries can be fatal.” Short-fall injuries can be trivial, but they
“can [also] be more serious and they can be serious even to the point of being fatal. This is not a
matter of opinion, it’s a matter of fact.” According to Dr. Cassin, the injury to the back of the
child’s head was “[n]ot an uncommon place for a head to strike something for the first time, or
unprotected.” A bathtub is “obviously [a] hard” surface, and if it is wet, you could fall, “[s]o if
the feet flew out from underneath this child, as if somebody were on ice skates or roller skates,
and the head came down and struck this hard surface of porcelain, that would be a considerable
head strike against a fixed surface.” According to Dr. Cassin, a short-fall head injury could
result from falling in a bathtub: “[i]t’s happening from her head level, which is about two and a
half feet high and so it, it would go into that category of head injury.” Dr. Cassin believed the
child’s injury could be sustained in that way, that is, that slipping and falling in a bathtub could
create sufficient force to cause the injury. Dr. Cassin said that the child’s skull was not fractured
because the skull is more elastic in a 14-month-old child, but there “is definite brain injury
beneath it and there is the characteristic subdural accumulation of blood, which then happens
over the next hour or so, that you would find in that pattern of bleeding from such an injury. So,
everything else fits.”
Dr. Cassin then opined that there was insufficient information to classify the child’s death
as a homicide or as an accident. The collection of blood in the victim’s brain occurred over a
time period of an hour. The pattern of injury indicated that the child’s head struck something:
“[t]he pattern of injury is of a moving head hitting a fixed surface.” Dr. Cassin explained that
“the child does not lose consciousness” at first, which is called a “lucid interval,” that varies in
duration, and the child would “start crying, screaming even,” which would
diminish over a relatively short period of time . . . but certainly within thirty
minutes or so, by the gradual accumulation of blood in the head and the swelling
of the brain, which then will cause the child, first of all, to become semiconscious, what many people would say sleepy or lethargic, and eventually lose
consciousness.
Maintaining that the prosecutor failed to present sufficient evidence for second-degree
murder and first-degree child abuse, the underlying crime leading to the felony-murder charge,
Clark moved for a directed verdict regarding the felony murder charge. The prosecutor argued
that Clark knowingly caused serious physical harm or risk of great bodily harm or death based on
expert opinion on “how much force it would . . . require to cause the type of subdural
hemorrhage that is present in this case.” Therefore, the trial court denied Clark’s motion. As
stated above, the jury then convicted Clark of felony murder predicated on first-degree child
abuse, and manslaughter and first degree-child abuse. The trial court later vacated the latter two
convictions. Clark now appeals.
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II. Juror C.S.
A. Standard Of Review
Clark argues that he was deprived of a fair trial because there was no further voir dire of a
juror who was removed from the jury after the first day of trial, C.S. The parties do not dispute
that C.S. was properly removable for cause because she had a felony conviction on her record.4
Clark claims that the presence of C.S. on the jury for part of the trial caused him actual prejudice,
and he indicates that she should have been further questioned regarding why she failed to
disclose her felony, her alleged connection to Mathis, and whether she tainted the jury by passing
along prejudicial information. Clark also claims that defense counsel provided ineffective
assistance of counsel in failing to further voir dire C.S. or request that the trial court continue
questioning her to ascertain what impact she had on the jury.
Because Clark failed to request a mistrial or move for a new trial in the trial court based
on this juror’s alleged prejudicing of the jury, we review this unpreserved claim for plain error
that affected his substantial rights.5 Our review of Clark’s ineffective assistance claim is limited
to mistakes that are apparent on the record.6
B. Legal Standards
When information potentially affecting a juror’s ability to act impartially is discovered
after the jury is sworn, the defendant is entitled to relief only if he can establish (1) that he was
actually prejudiced by the presence of the juror in question or (2) that the juror was properly
excusable for cause and his presence denied the defendant of an impartial jury.7 However, the
primary inquiry is whether the defendant was denied his right to an impartial jury; if not, then
there is no need for a new trial.8 “[S]ome showing must be made that the misconduct
affirmatively prejudiced the defendant’s right to a trial before an impartial and fair jury.”9
To prevail on an ineffective assistance claim, a defendant must demonstrate that defense
counsel’s performance was deficient because it fell below an objective standard of
reasonableness, and that this resulted in prejudice to him in that, but for the alleged error, it is
reasonably likely that the outcome of the trial would have been different.10
4
MCL 600.1307a(1)(e).
5
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
6
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
7
People v Miller, 482 Mich 540, 561; ___ NW2d ___ (2008); People v Daoust, 228 Mich App 1,
9; 577 NW2d 179 (1998), overruled in part by Miller, supra.
8
Miller, supra at 561.
9
People v Fetterley, 229 Mich App 511, 544-545; 583 NW2d 199 (1998).
10
People v Henry, 239 Mich App 140, 145-146; 607 NW2d 767 (1999).
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C. Applying The Standards
The record reflects that, after the jury was sworn and the first day of trial completed, the
trial court discovered that C.S. had a prior felony conviction and was ineligible to serve as a
juror. The prosecutor noted that Mathis indicated that she knew C.S. because they went to
school together and previously worked together. The trial court questioned C.S. to determine
whether the nondisclosure of her felony on her juror questionnaire or during voir dire was
intentional. C.S. indicated that she thought the felony was dismissed. The trial court then
properly dismissed C.S., and the trial proceeded with the remaining 12 jurors. C.S. did not
thereafter participate in deliberations at all or in deciding Clark’s guilt or innocence.
The trial court instructed the jurors, before their very first break on the first day of trial,
not to discuss the case amongst themselves. “It is well established that jurors are presumed to
follow their instructions.”11 As in People v Grabowski, the record here does not support a
conclusion that C.S. informed the other jurors that she knew Mathis or imparted any prejudicial
information to the jury.12 In Grabowski, a juror was dismissed after jury was sworn because she
informed the trial court that she could not be impartial.13 The defendant contended that the
juror’s bias may have tainted the jury during the lunch break, but this Court held that the trial
court instructed the jurors before lunch to refrain from discussing the case amongst themselves,
and “[t]here was no showing of any violation of this instruction by the jury members by
discussing the case, or even having lunch together.”14
Relief was unwarranted in that case, and on the record before us, we conclude that Clark
has failed to show that he was actually prejudiced by the presence of C.S. in this case. She was
excused for cause and did not take part in the deliberations. The mere fact of a juror being a
felon does not automatically require a new trial.15 Moreover, Clark’s contention that C.S.
somehow tainted the jury relies solely upon speculation, which is insufficient to establish actual
prejudice.16 Unlike in People v Fetterley,17 where the challenged juror learned of the defendant’s
prior criminal history during trial through outside sources, the record does not support the
conclusion that C.S. possessed any prejudicial information specifically about Clark.
11
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
12
See People v Grabowski, 12 Mich App 672, 675; 163 NW2d 449 (1968).
13
Id. at 674.
14
Id. at 674-675.
15
Miller, supra at 553-554.
16
Fetterley, supra at 545. See also People v Sowders, 164 Mich App 36, 47-48; 417 NW2d 78
(1987) (Where a juror was dismissed for cause after the jury was sworn because the juror
informed the trial court that he knew one of the prosecution’s witnesses and the defendant
claimed that the jury was thereby biased, this Court held that “[d]efendant is dealing strictly in
speculation and has shown nothing which would indicate that the jury was biased.”).
17
Fetterly, supra at 544-545.
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Based on the foregoing, we also find that defense counsel was not ineffective. The
record does not support the conclusion that defense counsel was ineffective for failing to request
further voir dire of C.S. In so ruling, we reject Clark’s argument that a remand to explore these
issues is necessary. Clark has not established that a remand would establish any relevant facts.18
III. Autopsy Photographs
A. Standard Of Review
Clark argues that the photographs admitted into evidence at trial were unduly prejudicial
and should have been excluded. Defense counsel stipulated to their admission at trial and this
issue is therefore waived.19
We nonetheless address Clark’s claim because he further asserts that defense counsel was
ineffective for failing to move to exclude the photographs or object to their admission at trial.
This Court generally reviews the trial court’s decision to admit evidence for a clear abuse of
discretion.20 The trial court abuses its discretion where it selects an outcome that falls outside
the range of reasonable and principled outcomes.21 Unpreserved non-constitutional error, such
as an evidentiary error,22 warrants reversal only where the defendant establishes plain error that
affected the outcome of the trial.23 A defendant must also show that he was actually innocent, or
that the fairness, integrity, or public reputation of the judicial proceedings was seriously
affected.24
B. Legal Standards
“Admission of gruesome photographs solely to arouse the sympathies or prejudices of the
jury may be error requiring reversal.”25 “However, a photograph that is otherwise admissible for
some proper purpose is not rendered inadmissible because of its gruesome details or the shocking
nature of the crime.”26
18
MCR 7.211(C)(1).
19
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
20
People v Mills, 450 Mich 61, 76; 537 NW2d 909, mod 450 Mich 1212 (1995).
21
People v Young, 276 Mich App 446, 448; 740 NW2d 347 (2007).
22
People v Herndon, 246 Mich App 371, 402 n 71; 633 NW2d 376 (2001).
23
Carines, supra at 774.
24
Id.
25
People v Ho, 231 Mich App 178, 187; 585 NW2d 357 (1998).
26
Id.
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C. Applying The Standards
First, the photographs must be relevant. MRE 401 provides that 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.”
Clark was charged with felony murder. The elements of felony murder are:
“(1) the killing of a human being, (2) with the intent to kill, to do great bodily
harm, or to create a very high risk of death or great bodily harm with knowledge
that death or great bodily harm was the probable result [i.e., malice], (3) while
committing, attempting to commit, or assisting in the commission of any of the
felonies specifically enumerated in the felony murder statute.”[27]
The underlying felony here was first-degree child abuse, which requires that the defendant
“knowingly or intentionally cause[d] serious physical or mental harm to a child.”28 The
prosecutor bears the burden of proving all the elements of the crime beyond a reasonable doubt,
even if the defendant offers to stipulate to any of the elements.29 Because all of the elements of
the charged offense are at issue, the prosecutor may offer evidence that is relevant to every
element.30 “[E]vidence of injury is admissible to show intent to kill.”31
Here, both defense and prosecutorial experts extensively used the challenged photographs
while testifying regarding the nature, extent, and cause of the child’s injuries. In People v
Unger,32 this Court held that the victim’s autopsy photographs were admissible under
circumstances where the “nature, type, and location” of the injuries were disputed, and the
photographs illustrated and augmented the expert testimony regarding the victim’s brain injuries.
In People v Mills,33 the photographs of the victim’s injuries were relevant to show the
defendants’ intent to commit murder: “[t]he severity and the vastness of the victim’s injuries
were of consequence to the determination whether the defendants’ acts were intentional.” For
the same reasons, the challenged photographs in this case were also relevant, material, and
admissible for the proper purpose of demonstrating the extent, nature, and cause of the child’s
injuries. These issues were relevant to a determination of whether Clark knowingly and
intentionally physically abused the child and whether he also possessed the intent to kill, inflict
27
Carines, supra at 758-759, quoting People v Turner, 213 Mich App 558, 566; 540 NW2d 728
(1995).
28
MCL 750.136b(2).
29
Mills, supra at 69.
30
Id. at 71.
31
Id.
32
People v Unger, 278 Mich App 210, 257; 749 NW2d 272 (2008).
33
Mills, supra at 71.
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great bodily harm, or create a very high risk of death or great bodily harm.34 Further, the
credibility of the witnesses’ testimony was an issue of consequence because of the competing
experts’ testimony, and the evidence was also admissible to aid the jury in assessing credibility.35
The photographs further assisted the jury in understanding the expert testimony.
The photographs in this case were also relevant because they tended to make the
existence of child abuse and Clark’s intent with respect to the abuse and the murder more
probable than they would be without the photographs.36 The prosecution’s experts testified that
the level of the child’s internal head injury was not consistent with merely slipping and falling in
the bathtub, that the external injuries such as the abrasions demonstrated signs of child abuse,
and that the bruises may have been caused by Clark’s hand being placed on the child’s face and
then slamming her head into a hard surface. A lung injury added to the possible signs of child
abuse. On the other hand, Clark disputed the prosecution’s experts’ conclusions. Clark’s expert
used the photographs in his testimony to explain and provide support for his conclusions. Clark
argued that the child’s fatal head injury either occurred when she slipped and fell in the bathtub
or was a “re-bleeding” in the child’s brain to an area that bled before.
Second, even if relevant, photographs may nonetheless be excluded “if [their] probative
value is substantially outweighed by the danger of unfair prejudice.”37 While the prosecution’s
evidence is prejudicial to some extent, “[i]t is only when the probative value is substantially
outweighed by the danger of unfair prejudice that evidence is excluded.”38 We conclude that the
photographs here were not offered nor admitted solely to arouse the prejudices and passions of
the jury. Moreover, evidence is unfairly prejudicial if it presents a danger that marginally
probative evidence will be given undue or preemptive weight by the jury.39 However, here the
photographs were not just marginally probative and nothing in the record supports that they were
given undue or preemptive weight. Although Clark contends that less prejudicial means were
available to the prosecutor to illustrate the child’s injuries, we note that Clark’s expert witness
also used the photographs while testifying. We also note that Clark objected when one of the
prosecutor’s experts attempted to use a model Styrofoam head in order to illustrate the location
of the injuries on ground that the photographs were the best evidence.
Because the photographs were admissible, we reject Clark’s argument that defense
counsel was ineffective for failing to object to them. Defense counsel did not have to raise a
meritless objection or futile argument.40
34
Carines, supra at 758-759.
35
Mills, supra at 72.
36
MRE 401.
37
MRE 403.
38
Mills, supra at 75 (emphasis in original).
39
People v Ortiz, 249 Mich App 297, 306; 642 NW2d 417 (2001).
40
Snider, supra at 425. See also Unger, supra at 257 (“Defense counsel was not ineffective for
failing to make a futile object to the admission of the [properly admissible] photographs.”).
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IV. The Dissent
Our dissenting colleague, however, asserts a separate and distinct ground for proposing a
reversal in this case. The dissent asserts trial counsel was ineffective in failing to request a
voluntary manslaughter instruction at the trial from which this appeal originates. We first note
that, as the dissent candidly acknowledges, this asserted ineffectiveness is not among the
questions that Clark has asked this Court to review in this appeal. Indeed, the statement of
questions presented concerning ineffective assistance of counsel reads, in its entirety, as follows:
Trial counsel performed ineffectively by failing to properly voir dire the tainted
juror, failing to request a mistrial and failing to file a motion to quash the
gruesome autopsy photographs or at least object to and limit their admission
resulting in unfair prejudice and undermining defendants’ due process right to a
fair trial.
Rather obviously, there is not a single reference in this statement, or elsewhere in Clark’s brief
on appeal, to trial counsel’s failure to request a voluntary manslaughter instruction.
This Court is not obligated to consider issues not properly raised and preserved or any
issues not set forth in the statement of questions presented.41 Moreover, this Court has often held
that an appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims,42 nor may he give issues cursory treatment with little or no
citation of supporting authority.43 We have also held that argument must be supported by
citation to appropriate authority or policy.44 Further, we have held that an appellant’s failure to
properly address the merits of his assertion of error constitutes abandonment of the issue.45
Here, Clark has not announced his position on the question of whether his trial counsel was
ineffective in failing to request a voluntary manslaughter instruction in the trial from which this
appeal originates. Nor has he failed to support such an argument by proper citation. Rather, for
reasons of his own, he has not made any argument at all on this question. If ever there was an
assertion of error that has been abandoned, it is this one.
41
MEA v SOS, 280 Mich App 477, 488; 761 NW2d 234 (2008); People v Brown, 239 Mich App
735, 748; 610 NW2d 234 (2000).
42
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998); People v Matuszak, 263 Mich
App 42, 59; 687 NW2d 342 (2004); Ambs v Kalamazoo County Road Comm, 255 Mich App
637, 650; 662 NW2d 424 (2003).
43
Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984), after rem 211 Mich App
214 (1995); Matuszak, supra; In re Ind Mich Power Co, 275 Mich App 369, 376; 738 NW2d 289
(2007).
44
MCR 7.212(C)(7); Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d
351 (2003); People v Sowders, 164 Mich App 36, 49; 417 NW2d 78 (1987).
45
People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004); Yee v Shiawassee Co Bd of
Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002).
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But our dissenting colleague nevertheless resurrects this issue in the interests of justice.
We fail to see how such interests will be served by deciding an unbriefed, indeed unasserted,
issue. We decline to speculate as to the conclusion (or conclusions) that a jury might have
reached had it been given a voluntary manslaughter instruction. We also decline to speculate on
the reasons that Clark’s trial counsel might have had when that counsel decided not to seek such
an instruction. We further decline to speculate on the reasons that Clark’s appellate counsel—a
different lawyer from the one who represented Clark at trial—might have had when that counsel
decided not to assert an ineffective assistance of counsel claim on appeal with respect to trial
counsel’s decision not to seek a voluntary manslaughter instruction. As our dissenting colleague
states, Clark has now been tried twice on the charge of felony murder arising out of the death of
his 14-month old daughter. At each trial, a jury found Clark guilty of felony murder. We fail to
see how a third trial on this charge would serve the interests of justice.
Affirmed.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
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