STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
January 12, 2010
Wayne Circuit Court
LC No. 07-003296-FC
HOUSAM J. BAYDOUN,
Before: Wilder, P.J., and O’Connell and Talbot, JJ.
Defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a), first-degree felony murder, MCL 750.316(1)(b), and three counts of assault with
intent to commit murder, MCL 750.83. He was sentenced to a single term of life imprisonment
for first-degree murder, and concurrent prison terms of 300 to 600 months each for the assault
convictions. He appeals as of right. We affirm.
Defendant’s convictions arise from the shooting death of Peter Issa. The prosecution’s
theory at trial was that defendant lured his intended victim, Mustapha Dallal, and three other
men, Issa, Scotty Khemoro, and Rony Khemoro, to a gas station in Detroit under the pretext that
he would sell them Vicodin. Instead, he sent a hired gunman, Dedrick McCauley, to conduct the
transaction, rob the buyers, and kill Dallal. According to testimony at trial, McCauley met with
the buyers at the gas station, produced a gun, and began shooting. Issa was killed, Dallal and
Scotty were wounded, and Rony was not harmed.
I. Sufficiency of the Evidence
Defendant first challenges his felony-murder conviction, arguing that there was
insufficient evidence to show that Issa was killed during the perpetration of a predicate felony
because the evidence indicated that an actual robbery was never committed. Defendant does not
specifically challenge the sufficiency of the evidence in support of his premeditated murder
conviction. Instead, defendant claims that the first degree felony firearm charge was
unsupported by the evidence and that its submission to the jury, along with the first degree
premeditated murder charge, caused him prejudice because the dual charges encouraged the jury
to reach a compromise verdict. We find no merit to these claims.
A challenge to the sufficiency of the evidence in a criminal case considers the evidence in
a light most favorable to the prosecution to determine whether it would warrant a reasonable
juror in finding guilt beyond a reasonable doubt. People v Nowack, 462 Mich 392, 399; 614
NW2d 78 (2000); People v Sexton, 250 Mich App 211, 222; 646 NW2d 875 (2002.)
Circumstantial evidence and reasonable inferences arising from that evidence can constitute
satisfactory proof of the elements of a crime. Nowack, 462 Mich at 400. Any conflicts in the
evidence are to be resolved in favor of the prosecution. People v Fletcher, 260 Mich App 531,
561-562; 679 NW2d 127 (2004).
A conviction of first-degree felony murder requires proof that the defendant (1)
performed acts or gave encouragement that assisted the commission of the killing of a human
being, (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great
bodily harm with knowledge that death or great bodily harm was the probable result, (3) while
committing, attempting to commit, or assisting in the commission of a predicate felony
enumerated in MCL 750.316(1)(b). People v Bulls, 262 Mich App 618, 624-625; 687 NW2d
159 (2004). The malice necessary for felony murder can be inferred from evidence that the
defendant “intentionally set in motion a force likely to cause death or great bodily harm.” Id. at
In this case, the prosecutor argued that defendant was guilty of felony murder under an
aiding and abetting theory. “To support a finding that a defendant aided and abetted a crime, the
prosecution must show that (1) the crime charged was committed by the defendant or some other
person, (2) the defendant performed acts or gave encouragement that assisted the commission of
the crime, and (3) the defendant intended the commission of the crime or had knowledge that the
principal intended its commission at the time he gave aid and encouragement.” People v
Izarraras-Placante, 246 Mich App 490, 495; 633 NW2d 18 (2001). Aiding and abetting
describes all forms of assistance rendered to the perpetrator, including any words or deeds that
may support, encourage, or incite the commission of a crime. People v Youngblood, 165 Mich
App 381, 387; 418 NW2d 472 (1988). “Because it is difficult to prove an actor’s state of mind,
only minimal circumstantial evidence is required.” People v McGhee, 268 Mich App 600, 623;
709 NW2d 595 (2005).
In this case, the predicate felony for the felony-murder charge was robbery. Contrary to
what defendant argues, the fact that the evidence did not establish a completed robbery did not
preclude a conviction of felony murder. MCL 750.316(1)(b) specifically provides that a person
is guilty of felony murder if a murder is committed in the perpetration of, or attempt to
perpetrate . . . a . . . robbery[.]” Thus, it is sufficient to show that a robbery was attempted to
establish the predicate felony for felony murder. Bulls, 262 Mich App at 624-625. “‘The
elements of armed robbery are: (1) an assault, (2) a felonious taking of property from the victim's
presence or person, (3) while the defendant was armed with a weapon described in statute .’”
People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999) (citation omitted); MCL 750.529.
The evidence at trial showed that defendant agreed to meet with Dallal and three others
for the purpose of selling them Vicodin, and that defendant arranged to meet the group at a
Speedy gas station at an appointed time. According to a witness, Michael Jacobs, defendant
conveyed to him that he had arranged a fake drug deal as a trap to have Dallal killed, as revenge
for a prior robbery. Defendant told Jacobs that he hired a gunman to conduct the transaction in
his place and to rob and kill Dallal. At the time and date of the planned transaction, McCauley
met the group at the Speedy gas station in defendant’s place. After McCauley approached the
men, he began shooting and fired several shots into the car that the men were occupying. Scotty
was able to drive away. Telephone records revealed that shortly before the offense, numerous
cell phone calls were placed between defendant’s cell phone and a cell phone linked to
McCauley. Viewed in a light most favorable to the prosecution, the evidence was sufficient to
show that defendant assisted in the offense by arranging the transaction with Dallal and the
others, and that, in accordance with defendant’s intent and plan, McCauley attempted to rob
Dallal and his associates and fired several gunshots at them, causing Issa’s death. Thus, the
evidence was sufficient to support defendant’s felony-murder conviction.
Furthermore, there is no merit to defendant’s argument that he was prejudiced by the
submission of the separate first-degree murder charges to the jury. This case is distinguishable
from People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974), in which the jury was
permitted to convict the defendant of either first-degree premeditated murder or first-degree
felony-murder without being required to unanimously agree on which theory to apply. Unlike in
Olsson, defendant here has not shown that there was insufficient evidence to support a
conviction under one of these theories. See People v Smielewski, 235 Mich App 196, 205-206;
596 NW2d 636 (1999). Further, the two charges in this case were submitted as separate counts,
and the jury was instructed that it was required to consider each count separately, and that its
verdict for each count had to be unanimous. Accordingly, there was no error in permitting the
jury to consider both first-degree premeditated murder and first-degree felony murder.
II. Failure to Preserve Video Evidence
Defendant argues that his due process rights were violated because Officer Shea failed to
preserve a video recording from a surveillance camera at the Speedy gas station where the
shooting took place. Because defendant did not raise this issue below or request any relief based
on the absence of the video recording, this issue is not preserved. Unpreserved claims of
constitutional error are reviewed for plain error affecting a defendant’s substantial rights. People
v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006).
To establish a due process violation, defendant must show that missing evidence was
exculpatory or that law enforcement personnel acted in bad faith in failing to preserve the
evidence. People v Hanks, 276 Mich App 91, 95; 740 NW2d 530 (2007). Due process also
requires that the prosecution disclose evidence in its possession that is exculpatory and material,
regardless of whether the defendant requests the evidence. Brady v Maryland, 373 US 83, 87; 83
S Ct 1194; 10 L Ed 2d 215 (1963); People v Schumacher, 276 Mich App 165, 176; 740 NW2d
534 (2007). The failure to preserve evidence that may potentially exonerate a defendant does not
constitute a denial of due process unless the police acted in bad faith. Arizona v Youngblood,
488 US 51, 58; 109 S Ct 333; 102 L Ed 2d 281 (1988). Similarly, an adverse inference
instruction need not be given where the defendant has not shown that the prosecutor acted in bad
faith in failing to produce evidence. People v Davis, 199 Mich App 502, 515; 503 NW2d 457
Here, the record does not establish either that the police failed to preserve evidence, or
that the evidence in question was potentially exculpatory. Officer Shea testified that he did not
obtain a copy of the video surveillance recording, and instead only watched it at the gas station,
because the gas station’s equipment did not permit the video to be downloaded. Defendant does
not claim that this explanation was false. Similarly, defendant does not claim that he was
somehow prevented from independently investigating the equipment at the gas station, and there
is nothing suggesting that the video would not have been available for viewing by defense
counsel if he had visited the gas station. Furthermore, the available testimony indicates that the
video would not have been useful. According to Officer Shea, the camera was trained only on
the interior of the gas station, not the outside area where the shooting took place. Defendant did
not challenge this information. On this record, there is no basis for finding that the police failed
to preserve the evidence, that the evidence would have been exculpatory, or that the police acted
in bad faith. Accordingly, defendant has not established a plain error affecting his substantial
III. Motion for Mistrial
Defendant next argues that he was unfairly prejudiced by Officer Shea’s testimony that
he determined from McCauley’s step-mother, Shaundra Reed, that a telephone number that
appeared in defendant’s and Dallal’s cell phone records was the number for a cell phone used by
McCauley, the identified shooter. He argues that the trial court should have granted his motion
for a mistrial because Shea’s testimony was inadmissible hearsay, and also violated his
constitutional right of confrontation. We disagree.
A trial court’s decision on a motion for mistrial is reviewed for abuse of discretion.
People v Bauder, 269 Mich App 174, 194; 712 NW2d 506 (2005). “A motion for a mistrial
should be granted only for an irregularity that is prejudicial to the rights of the defendant and
impairs the defendant’s ability to get a fair trial.” People v Lugo, 214 Mich App 699, 704; 542
NW2d 921 (1995).
Hearsay is defined as “a statement, other than 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); People v McLaughlin, 258 Mich App 635, 651; 672 NW2d 860 (2003). The
Confrontation Clause, US Const, Am VI, guarantees a criminal defendant the right to confront
the witnesses against him. See also Const 1963, art 1, § 20. In Crawford v Washington, 541 US
36, 53-54; 124 S Ct 1354; 158 L Ed 2d 177 (2004), the United States Supreme Court held that
the Sixth Amendment bars testimonial statements by a witness who does not appear at trial
unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the
witness. A pretrial statement is testimonial if the declarant should have reasonably expected the
statement to be used in a prosecutorial manner, and if the statement is made under circumstances
that would cause an objective witness reasonably to believe that the statement would be available
for use at a later trial. Id. at 51-52; People v Lonsby, 268 Mich App 375, 377; 707 NW2d 610
It is not apparent that Officer Shea’s challenged testimony was based on hearsay. First,
Officer Shea did not clearly testify regarding any out-of-court statement by Reed. The
challenged testimony occurred in the context of the prosecutor asking Officer Shea why he had
identified a given phone number with the identified shooter, McCauley. The following exchange
Q. And there’s some highlighting on your copy; is that correct?
Q. Is that something you did?
A. Yes, but I think that there is one number from Dedrick McCauley to Mustapha
Dallal on that and I just highlighted it.
Q. Okay. And is that your writing on the side?
A. Yes, it says Dedrick.
Q: How did you determine that was the shooter’s phone number?
A. From his step-mom.
Although Officer Shea stated that he determined the shooter’s number from Reed (McCauley’s
step-mother), he did not indicate whether his conclusion was based on something Reed actually
said, or whether it was based on him drawing the inference that the phone number was associated
with McCauley because it belonged to a phone registered to Reed, McCauley’s step-mother.
Officer Shea had already testified that he determined that the phone number was for a phone
registered to Reed. There was no clear reference to any out-of-court statement by Reed in Shea’s
Second, to the extent that officer Shea’s testimony could be understood as implicitly
referring to an out-of-court statement by Reed, the testimony was not offered for its truth.
Rather, the purpose of the testimony was to explain why Officer Shea wrote McCauley’s first
name beside a number on Dallal’s cell phone records. Accordingly, there was no out-of-court
statement offered in evidence to prove the truth of the matter asserted. MRE 801(c);
McLaughlin, 258 Mich App at 651. In addition, because Shea did not reveal any testimonial
statement by Reed, the Confrontation Clause is not implicated.
We also note that while defendant complains that the testimony improperly allowed the
prosecutor to connect him with McCauley, this connection was not dependent on any statement
by Reed. Officer Shea had already testified that he determined that the cell phone number
appearing in defendant’s records was for a cell phone registered to Reed. That was not hearsay
information obtained from Reed. Evidence that a number on defendant’s cell phone was linked
to a cell phone registered to the step-mother of McCauley, the identified shooter, alone served to
connect defendant to McCauley (by showing that the number was registered to a phone to which
McCauley would have had access).
In view of these circumstances, the trial court did not abuse its discretion in denying
defendant’s motion for a mistrial.
IV. Prosecutor’s Conduct
Defendant argues that the prosecutor’s conduct denied him a fair trial. Because
defendant did not object to the prosecutor’s conduct at trial, our review of this issue is limited to
plain error affecting defendant’s substantial rights. McLaughlin, 258 Mich App at 645.
This Court reviews claims of prosecutorial misconduct case-by-case, examining the
pertinent portion of the record and evaluating the prosecutor’s remarks in context. People v
Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). The prosecutor’s comments must be
read as a whole and evaluated in light of their relationship to defense arguments and the evidence
presented at trial. Id.
Defendant’s first argues that the prosecutor improperly commented on possible
disposition or punishment through the following remarks during closing argument:
Every single person involved in this case is going to be held accountable
for their part. Everybody did wrong there is no doubt about it.
Mr. Dallal and Rony and Scotty and Peter shouldn’t have been involved in
a drug deal. But we don’t have the death penalty in Michigan and we certainly
don’t have it for doing drugs. [Emphasis added.]
As defendant correctly observes, it is improper for a prosecutor to comment on a defendant’s
possible sentence or disposition. People v Torres (On Rehearing), 222 Mich App 411, 423; 564
NW2d 149 (1997). Here, however, defendant improperly presents the prosecutor’s remarks out
of context, ignoring the portions surrounding the emphasized comments. Viewed in context, the
prosecutor was arguing that the victims’ illegal conduct did not excuse defendant’s guilt. The
prosecutor did not ask the jury to consider defendant’s possible disposition or punishment. Thus,
there was no plain error.
Defendant next argues that the prosecutor improperly injected ethnic prejudices by asking
him whether he spoke Arabic. A prosecutor may not inject racial or ethnic remarks into a trial
for the purpose of arousing the prejudices of the jurors. People v Cooper, 236 Mich App 643,
651; 601 NW2d 409 (1999). In this case, the prosecutor’s questioning was relevant because a
witness testified that he overheard a cell phone conversation in which the caller spoke with an
Arabic accent. The challenged line of questioning occurred when the prosecutor attempted to
establish a foundation for impeaching defendant’s credibility with regard to telephone calls that
he placed from the Wayne County Jail. Defendant initially denied speaking Arabic during the
calls, but then conceded that he may have said a few Arabic words because his mother did not
understand English. Defendant did not object to this brief questioning, but instead used it as an
opportunity to argue that the prosecutor was “trying to throw on all of these grass roots out of all
of these seeds and hopefully it will take root.” Viewed in the context of the evidence and the
issues raised at trial, the prosecutor did not inject the issue of defendant’s ethnicity in an attempt
to arouse prejudices, but merely explored the issue whether defendant spoke Arabic, which was a
relevant issue at trial. Thus, there was no plain error.
Defendant next argues that the prosecutor improperly vouched for Scotty Khemoro’s
credibility. We disagree. The prosecutor acknowledged that the three surviving victims had not
been entirely honest with the police early in the investigation. During her rebuttal argument, she
Absolutely these witnesses were not forthcoming at first. It’s human
nature to minimize and try to not to be forthcoming and take responsibility for
what you’ve done.
Some people eventually do, some people don’t. I would suggest to you
that the three of the witnesses who surveyed who were in that car they were
Scotty’s whose best friend was killed I would suggest to you was probably
the most forthcoming and honest and took the most responsibility for what
And I would suggest to you that he’s a very credible witness. And I hope
that you will think back about what you heard when you listened to these
A prosecutor may not vouch for a witness’s credibility or suggest that the government has some
special knowledge that a witness’s testimony is truthful. People v Knapp, 244 Mich App 361,
382; 624 NW2d 227 (2001). A prosecutor may, however, argue from the facts that a witness is
credible or that the defendant or another witness is not worthy of belief. People v Howard, 226
Mich App 528, 548; 575 NW2d 16 (1997). Here, the prosecutor permissibly argued from the
evidence that Scotty was the most credible of the witnesses, because he was the most
forthcoming about his drug-dealing plans. Contrary to what defendant argues, the prosecutor did
not state that all of Scotty’s testimony was fully truthful and reliable, nor did she suggest that the
jury should accept his testimony because she had some special knowledge that it was truthful.
Accordingly, there was no misconduct.
Defendant lastly argues that the prosecutor denied him a fair trial when she stated that
defendant knew that Scotty customarily carried large sums of cash. Defendant argues that there
was no evidence to support this assertion. In her closing argument, the prosecutor stated:
Mr. Baydoun lured those young men there knowing they would have
money because he told them to bring money for a drug deal.
I would assume that he also knew that Scotty always carried all his money
with him. He knew he had money. Heck, he probably thought these guys could
get their fee off them when he robbed them.
Prosecutors may not make a statement of fact to the jury that is unsupported by the evidence, but
they are free to argue the evidence and all reasonable inferences arising from it as they relate to
their theory of the case. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995). Here, the
prosecutor’s statement that defendant knew that the prospective buyers would be carrying money
was a reasonable inference from the evidence presented. To the extent that it was improper for
the prosecutor to state that she assumed that defendant knew that Scotty always carried his
money, her characterization of this statement as an assumption tempered any prejudicial effect.
Furthermore, the trial court instructed the jury that the attorney’s statements are not evidence.
Under the circumstances, the trial court’s instruction was sufficient to protect defendant’s
For these reasons, the prosecutor’s conduct did not deny defendant a fair trial.
V. Newly Discovered Evidence.
In a supplemental brief, defendant argues that McCauley’s testimony at his own trial,
which was held approximately four months after defendant’s trial, is newly discovered evidence
that entitles him to a new trial.1 McCauley testified at his trial that he met defendant on the day
before the shooting and defendant asked him to sell Vicodin for him. According to McCauley,
when he met with Dallal and his associates, Rony pulled out a gun. McCauley claimed that he
was able to remove the clip from the gun, but then heard a gunshot, after which he fired three
shots in self-defense.
In People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003), our Supreme Court stated:
For a new trial to be granted on the basis of newly discovered evidence, a
defendant must show that: (1) the evidence itself, not merely its materiality, was
newly discovered; (2) the newly discovered evidence was not cumulative; (3) the
party could not, using reasonable diligence, have discovered and produced the
evidence at trial; and (4) the new evidence makes a different result probable on
retrial. [Internal quotations and citation omitted.]
McCauley’s whereabouts were unknown at the time of defendant’s trial. McCauley was
later apprehended and his trial was held four months after defendant’s trial. Consequently, his
testimony is newly discovered evidence. McCauley’s testimony was not cumulative of the
evidence at defendant’s trial because the Vicodin buyers denied displaying guns or acting as the
initial aggressors to the shooting. There is no indication that defendant knew of McCauley’s
whereabouts; in any event, defendant could not have compelled McCauley to give selfincriminating testimony. Thus, the first three requirements of the test set forth in Cress are
However, McCauley’s testimony would not make a different result probable on retrial.
McCauley’s testimony contradicts material portions of defendant’s testimony. In particular,
defendant denied knowing McCauley and claimed that he never sent anyone to sell Vicodin in
his place. Defendant also testified that he was never able to locate enough Vicodin to sell to
Dallal and his associates, so he did not go to the gas station and did not send anyone in his place.
In contradiction to defendant’s testimony, McCauley testified that he and defendant met the day
before the shooting to arrange the sale of Vicodin. Thus, McCauley’s testimony actually lends
credence to the prosecutor’s theory of the case rather than making defendant’s acquittal more
probable on retrial.2 Accordingly, defendant is not entitled to a new trial.
This Court denied defendant’s motion to remand with respect to this issue, but permitted
defendant to expand the record on appeal to include McCauley’s testimony at his subsequent trial
and granted defendant leave to file a supplemental brief raising issues with respect to
McCauley’s testimony. People v Baydoun, unpublished order of the Court of Appeals, entered
June 2, 2008 (Docket No. 281972).
We note that Courts in other jurisdictions have rejected defense motions for new trials where
the motions were based on newly discovered testimony that contradicted the defendant’s own
/s/ Kurtis T. Wilder
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
trial testimony. See Davila v State, 147 SW3d 572, 578 (Tex App 2004), and Newman v State,
156 Md App 20; 845 A2d 71 (2003), rev’d on other grounds 384 Md 285 (2004).