PEOPLE OF MI V STEVEN LEROY BAUDERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 8, 2005
St. Joseph Circuit Court
LC No. 03-011698-FC
STEVEN LEROY BAUDER,
Official Reported Version
Before: Bandstra, P.J., and Neff and Markey, JJ.
Defendant appeals by right his conviction of felony murder.1 MCL 750.316(1)(b).
Defendant argues on appeal that he was denied a fair trial by the admission into evidence of
numerous statements made by the victim in the weeks before her death. Because we find
defendant's Confrontation Clause rights, US Const, Am VII, were not violated, and, because
most of defendant's other evidentiary arguments were not preserved by specific objection below,
we conclude plain error warranting reversal did not occur. Further, the trial court did not abuse
its discretion by denying defense counsel's motion to withdraw or defendant's motion for a
mistrial after the victim's brother briefly disrupted the trial with a courtroom outburst. We
In addition to felony murder, the prosecutor charged defendant with "open murder," MCL
750.316(1)(a), MCL 767.44, and with first-degree criminal sexual conduct (CSC I), MCL
750.520b, as an habitual offender, MCL 769.10; and with other offenses. The jury also
convicted defendant of second-degree murder, MCL 750.317, and CSC I, which the trial court
dismissed, sentencing defendant to life in prison only for felony murder.
Appellate review of unpreserved allegations of error is disfavored. People v Carines,
460 Mich 750, 761-762; 597 NW2d 130 (1999). The courts of this state have long recognized
that, in general, an issue is not properly preserved for appeal if it is not raised before the trial
court. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). Further, with respect to
preserving alleged error regarding the admission of evidence, MRE 103(a)(1) provides: "Error
may not be predicated upon a ruling which admits or excludes evidence unless a substantial right
of the party is affected, and . . . a timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not apparent from the context."
Because the grounds for objection at trial and the grounds raised on appeal must be the same, an
objection on the basis of the rules of evidence will not necessarily preserve for appeal a
Confrontation Clause objection. People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003).
The converse applies to the case at bar.
At the beginning of a two-day pretrial hearing on the admissibly of the victim's
statements, the prosecutor stated that he was relying on MRE 803(3), "[a] statement of the
declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health) . . . ," and on MRE 804(b)(6), "[a]
statement offered against a party that has engaged in or encouraged wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness." The trial court
stated to defense counsel, "You oppose this, right?" Counsel answered:
I oppose, yes, I oppose it, of course, I oppose it's [sic] admission because
there is no chance to confront the actual declarant, [the victim], because she is
unavailable. But I do recognize that there are exceptions to the hearsay rule, and
we'll have to address this.
Further, although counsel stated he would respond after the prosecutor's offer of proof,
by the conclusion of the two-day hearing, he did not. Instead, counsel requested two more
weeks to research the prosecutor's theories of admissibility and file a brief. The record does not
reflect that counsel filed such a brief, nor does it reflect any specific objection to the victim's
hearsay statements on the basis of the rules of evidence that defendant now raises on appeal. At
best, the record suggests that counsel may have objected to the hearsay off the record on the
basis of MRE 403. Counsel remarked at a hearing on his motion to withdraw on the eve of trial
that the parties were awaiting the trial court's decision regarding admissibility of hearsay, which
counsel stated was pending the court's review of the hearsay's "prejudicial versus probative"
value. On the first day of trial after the jury was sworn and before opening statements, the trial
court ruled that the hearsay evidence was generally admissible, and that the evidence was
relevant and material to the charges against defendant. The trial court also recalled that "the only
evidence that was identified as being potentially unfairly prejudicial was the evidence of anal
intercourse, and the defendant's female clothing fetish." The court, however, ruled that the
danger of unfair prejudice was far outweighed by the probative value of the evidence. In sum,
defendant did not argue below that the hearsay was inadmissible because it was not relevant,
MRE 402, did not argue that the evidence failed to meet the criteria for admissibility under MRE
803(3) or 804(4)(b)(6), and did not assert the hearsay was inadmissible character evidence, MRE
We review the trial court's decision to admit or exclude evidence for a clear abuse of
discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). An abuse of discretion
exists only if an unprejudiced person, considering the facts on which the trial court acted, would
say that there is no justification or excuse for the trial court's decision. People v Ullah, 216 Mich
App 669, 673; 550 NW2d 568 (1996). A trial court's decision on a close evidentiary question
ordinarily cannot be an abuse of discretion. Coy, supra at 13.
When constitutional error occurs and is preserved, as defendant here alleges the
admission of hearsay in violation of the right of confrontation to be such an error, a new trial
must be ordered unless it is clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error. People v Shepherd, 472 Mich 343, 347; 697 NW2d
144 (2005). On the other hand, ordinary trial error, even if preserved, will merit reversal only
when, in the context of the entire trial, it affirmatively appears more probable than not that the
error was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
Our review of alleged unpreserved error is limited to determining whether a plain error
affected substantial rights. MRE 103(d); Carines, supra at 763-764. "First, there must be an
error; second, the error must be plain (i.e., clear or obvious); and third, the error must affect
substantial rights (i.e., there must be a showing that the error was outcome determinative)." Id.
Further, we may grant relief only when the plain error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial
proceedings, independent of defendant's guilt or innocence. Id. at 763.
We first address defendant's constitutional claim that the admission into evidence of
statements the victim made to friends, coworkers, and defendant's relatives in the weeks before
her death violated his right to confront witnesses against him. Defendant relies on Crawford v
Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), which rejected the reliability
test established in Ohio v Roberts, 448 US 56, 66; 100 S Ct 2531; 65 L Ed 2d 597 (1980), with
respect to the admissibility of "testimonial" evidence. The Crawford Court held that the
Confrontation Clause does not permit the admission in evidence of ex parte "testimonial"
statements, which the Court did not precisely define, unless the accused has had a prior
opportunity for cross-examination and the declarant is unavailable. "Where testimonial evidence
is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and
a prior opportunity for cross-examination." Crawford, supra at 68.
But Crawford does not help defendant because we find that the victim's statements that
were admitted in evidence were not "testimonial." None of the victim's statements at issue was
the product of "ex parte examinations [to be used] as evidence against the accused," which the
"right to confrontation was meant to prohibit . . . ." Id. at 50. Further, we believe the Crawford
Court indicated that statements similar to those at issue here were not "testimonial" when the
Court noted that "[a]n accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id.
Our conclusion that the victim's statements were not "testimonial" is further supported by
this Court's decisions in People v Walker, 265 Mich App 530; 697 NW2d 159 (2005), lv gtd 472
Mich 928; 697 NW2d 527 (2005), and People v Geno, 261 Mich App 624; 683 NW2d 687
(2004). The Geno Court reviewed hearsay admitted under MRE 803(24) and found that a
"child's statement . . . made to the executive director of the Children's Assessment Center, not to
a government employee, and the child's answer to the question whether she had an 'owie'" was
not testimonial. Geno, supra at 631. More on point is Walker, in which this Court held that a
domestic violence victim's excited statements to a neighbor and to the first responding police
officer while the victim was "hysterical . . . scared, crying, highly upset, and shaking" were
properly admitted at trial under MRE 803(2). Walker, supra at 534-535. The Walker Court held
that the victim's statements were not "testimonial" within the meaning of Crawford, opining: "It
is unlikely that someone would jump from a second-story balcony and run to the home of a
neighbor she did not know, all with an eye toward developing testimony for subsequent
prosecution." Walker, supra at 537.
In the present case, the trial court admitted the victim's statements to her friends,
coworkers, former in-laws, and defendant's relatives. None of the witnesses to whom the victim
made her declarations was a government official, and there is nothing to indicate that the
statements were made with the intent to preserve evidence for later possible use in court. So, as
in Walker2 and Geno, we conclude the victim's statements here were not testimonial. "Where
nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the
States flexibility in their development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause scrutiny altogether."
Crawford, supra at 68.
Moreover, although Crawford rejected the Roberts reliability test for testimonial
evidence, the Court preserved the equitable doctrine—not based on the reliability of the
evidence—that a party may waive Confrontation Clause rights by wrongdoing. Justice Scalia
wrote that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation
claims on essentially equitable grounds; it does not purport to be an alternative means of
determining reliability." Crawford, supra at 62. Justice Scalia refers us to Reynolds v United
States, 98 US (8 Otto) 145, 158-159; 25 L Ed 244 (1879), for a discussion of this doctrine.
In Reynolds, the defendant was charged with the offense of bigamy in the territory of
Utah. At the defendant's trial, the testimony of the defendant's alleged second wife at a former
proceeding was admitted in evidence because the defendant had refused to reveal her
We acknowledge that the issue whether the victim's hearsay statements in Walker were
"testimonial" in nature and thus inadmissible under the rule of Crawford is pending review in our
Supreme Court. People v Walker, 472 Mich 928 (2005).
whereabouts to a process server attempting to serve her a subpoena. Id. at 159-160. Rejecting
the defendant's Confrontation Clause claim, the Reynolds Court opined:
The Constitution gives the accused the right to a trial at which he should
be confronted with the witnesses against him; but if a witness is absent by his
own wrongful procurement, he cannot complain if competent evidence is
admitted to supply the place of that which he has kept away. The Constitution
does not guarantee an accused person against the legitimate consequences of his
own wrongful acts. It grants him the privilege of being confronted with the
witnesses against him; but if he voluntarily keeps the witnesses away, he cannot
insist on his privilege. If, therefore, when absent by his procurement, their
evidence is supplied in some lawful way, he is in no condition to assert that his
constitutional rights have been violated. [Id. at 158.]
The Reynolds Court explained that this "rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong . . . ." Id. at 159.
Although the doctrine of forfeiture by wrongdoing has been incorporated into the Federal
Rules of Evidence3 and the Michigan Rules of Evidence4 in 1997 and 2001, respectively, the
doctrine is not dependent on them for its application because the Sixth Amendment's protections
are not dependent on "the vagaries of the rules of evidence." Crawford, supra at 61; United
States v Garcia-Meza, 403 F3d 364, 370 (CA 6, 2005). Before 1997, not only the United States
Supreme Court but also every federal Circuit Court of Appeals to consider the issue applied the
equitable doctrine of forfeiture by wrongdoing. See, United States v Mastrangelo, 693 F2d 269,
272-273 (CA 2, 1982), and Steele v Taylor, 684 F2d 1193, 1201 n 10 (CA 6, 1982). In Steele,
the court, in discussing forfeiture by wrongdoing of the right of confrontation, observed that it
had found no case "in which a court upon a finding of wrongful conduct has declined to admit
prior statements that would have come in had the witness taken the stand," and stated the rule as:
"A prior statement given by a witness made unavailable by the wrongful conduct of a party is
admissible against the party if the statement would have been admissible had the witness
testified." Id. at 1202.
In Garcia-Meza, the defendant became angry after his wife Kathleen danced with another
man at a gathering of friends. Garcia-Meza, supra at 366. Although the defendant grabbed
FRE 804(b)(6) provides that "[a] statement offered against a party that has engaged or
acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the
declarant as a witness" is not subject to exclusion under the hearsay rule if the declarant is
unavailable as a witness.
MRE 804(b)(6) provides that "[a] statement offered against a party that has engaged in or
encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant
as a witness" is not subject to exclusion under the hearsay rule if the declarant is unavailable as a
Kathleen by the hair, called her a bitch, and wrestled her to the floor, Kathleen managed to flip
the defendant onto his back giving him a bloody lip. Id. Kathleen then went to her mother's
home where she resided. Defendant later arrived and stabbed Kathleen to death when she
refused to leave with him. Id. at 367. At the defendant's trial, the district court admitted
evidence of defendant's beating of Kathleen five months before her death to show motive, intent,
and capacity to commit murder pursuant to FRE 404(b). Garcia-Meza, supra at 367-368. The
court also permitted investigating police officers to testify regarding what Kathleen told them
about the prior beating, specifically, that the defendant beat Kathleen because she had spoken to
a former boyfriend. Id. at 369. The court described Kathleen's statements as "excited utterances
made minutes after the assault . . . ." Id.
On appeal, although the defendant conceded the statements were excited utterances, he
argued their admission in evidence violated his right to confrontation. Id. The court held that it
did not have to decide under Crawford "whether a victim's excited utterance made to an
investigating police officer is testimonial, for the Defendant has forfeited his right to confront
Kathleen because his wrongdoing is responsible for her unavailability." Garcia-Meza, supra at
370, citing Crawford, supra at 62, and Reynolds, supra at 158-159. The court noted that the
"defendant admitted that he killed Kathleen, thereby procuring her unavailability to testify," and
that the issue at trial was "whether he acted with premeditation to support a conviction of firstdegree murder." Garcia-Meza, supra at 370. The court concluded that because "there is no
doubt that the Defendant is responsible for Kathleen's unavailability . . . he has forfeited his right
to confront her." Id. Likewise, here, defendant admitted killing the victim, contending at trial
that the offense was not premeditated or deliberate, and that vaginal penetration occurred
postmortem. The issue before the jury, as defense counsel asserted in the opening statement,
was defendant's "degree of guilt." Under these circumstances, we agree with the court in
Garcia-Meza; defendant has forfeited his constitutional right to confront the victim.
As in Garcia-Meza, we reach this conclusion without deciding whether the trial court
clearly erred by finding that the victim was killed, at least in part, to preclude her from revealing
domestic abuse. The trial court based its finding on testimony presented at the pretrial hearing
regarding the admissibility of the hearsay evidence. On the basis of this preliminary finding of
fact, the trial court ruled that MRE 804(b)(6), which plainly provides for forfeiture by
"wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness," applied to allow admission of the hearsay evidence. See, e.g., United States v Dhinsa,
243 F3d 635, 654 (CA 2, 2001) (interpreting the nearly identical FRE 804[b] to require the
government to show, preliminary to admission of hearsay under the rule, that the defendant was
motivated in part by desire to silence the declarant). But as we have already noted, the
determination whether defendant has forfeited his constitutional right of confrontation is an issue
separate from whether a particular rule of evidence has been satisfied. The Garcia-Meza court
directly addressed this issue, and we adopt that court's reasoning.
The Defendant, however, argues that for the rule of forfeiture to apply, a
defendant must have killed or otherwise prevented the witness from testifying
with the specific intent to prevent her from testifying. Since he did not kill her
with the specific intent to prevent her from testifying, the Defendant argues, he
should not be found to have forfeited his right to confront her. There is no
requirement that a defendant who prevents a witness from testifying against him
through his own wrongdoing only forfeits his right to confront the witness where,
in procuring the witness's unavailability, he intended to prevent the witness from
testifying. Though the Federal Rules of Evidence may contain such a
requirement, see Fed. R. Evid. 804(b)(6), the right secured by the Sixth
Amendment does not depend on, in the recent words of the Supreme Court, "the
vagaries of the Rules of Evidence." Crawford [supra at 61]. The Supreme
Court's recent affirmation of the "essentially equitable grounds" for the rule of
forfeiture strongly suggests that the rule's applicability does not hinge on the
wrongdoer's motive. The Defendant, regardless of whether he intended to prevent
the witness from testifying against him or not, would benefit through his own
wrongdoing if such a witness's statements could not be used against him, which
the rule of forfeiture, based on the principles of equity, does not permit. [GarciaMeza, supra at 370-371.]
Accordingly, regardless of whether the trial court correctly applied MRE 804(b)(6) on
the facts of this case, we hold that defendant has forfeited his Confrontation Clause rights with
regard to the victim's out-of-court statements.
Having concluded that defendant's preserved constitutional claim fails, we next address
his unpreserved claims under the rules of evidence. We note that we are not bound by the
reasoning of the trial court in admitting the victim's statements. This Court will not reverse a
trial court decision when the lower court reaches the correct result even if for a wrong reason.
People v McLaughlin, 258 Mich App 635, 652 n 7; 672 NW2d 870 (2003). Further, under the
Michigan Rules of Evidence, evidence that is properly admissible for one purpose need not be
excluded because it is not admissible for another purpose. See People v Sabin (After Remand),
463 Mich 43, 56; 614 NW2d 888 (2000) (discussing the theory of multiple admissibility). Of
course, when evidence is relevant to both a proper purpose and an improper purpose, counsel
may request an instruction limiting the evidence to its proper purpose. Id.; MRE 105; see, also,
People v Moorer, 262 Mich App 64, 69; 683 NW2d 736 (2004). Finally, under the theory of
multiple admissibility, only one proper theory under which the evidence is admitted is required.
Starr, supra at 501.
We find no plain error in the trial court's admission of the bulk of the victim's out-ofcourt statements. The trial court admitted the evidence under MRE 803(3) for the proper
purposes of proving the victim's state of mind, specifically showing domestic discord, and,
indirectly, for evidence of a motive for murder, i.e., evidence of defendant's intent,
premeditation, and deliberation. In that regard, the trial court specifically relied on this Court's
decision in People v Ortiz, 249 Mich App 297; 642 NW2d 417 (2002). In Ortiz, the victim had
told others that she was afraid of the defendant, that she thought the defendant was stalking her,
that the defendant physically assaulted her, that the defendant threatened to kill her, that the
victim was changing her will, that the victim anticipated her death, and that the victim did not
want to reconcile with defendant. Id. at 307. The statements in Ortiz are remarkably similar to
the victim's statements in this case: she had said that she was fearful of defendant, that defendant
had threatened to kill her, her son, and her ex-husband, that she was tired of defendant's
incessant demands for all kinds of sex and defendant's forcing sex if she refused, that she wanted
to end her relationship with defendant and reconcile with her ex-husband, that defendant was
jealous of her ex-husband, and that defendant stalked and beat her. These statements were
evidence of the victim's state of mind, her fear, her intent to resist sex, and her intent to end her
relationship with defendant. The Ortiz Court's analysis is applicable to the victim's statements
here. That Court found no abuse of discretion by the trial court in admitting similar statements,
opining as follows:
Evidence of the victim's state of mind, evidence of the victim's plans,
which demonstrated motive (the ending of the marriage and the tension between
the victim and defendant), and evidence of statements that defendant made to
cause the victim fear were admissible under MRE 803(3). They were relevant to
numerous issues in the case, including the issues of motive, deliberation, and
premeditation and the issue whether the victim would have engaged in consensual
sexual relations with defendant the week before her death. [Ortiz, supra at 310.]
We acknowledge that some of the hearsay may have been improperly used to prove a fact
that the declarant remembered, for example, that defendant was sexually obsessed with the
victim and that defendant was jealous of the victim's ex-husband. See Moorer, supra at 73.
Nevertheless, the hearsay also was relevant to the victim's intent to end her relationship with
defendant and made it more likely that the victim might have resisted sex, thus leading to her
murder. Furthermore, defendant admitted to the police he was jealous of the victim's exhusband, and defense counsel admitted defendant was obsessed with the victim. Defense
counsel used evidence of both defendant's obsession with the victim and defendant's jealousy to
successfully argue that defendant did not premeditate and deliberate before killing the victim.
We are also troubled by the use of sexual obsession evidence as a motive to commit a
CSC offense. Our Supreme Court has rejected the admission of evidence of "lustful disposition"
for use as propensity evidence in criminal sexual conduct cases. Sabin, supra at 60-61 n 7.
Nevertheless, we find no error warranting reversal because the evidence was also relevant to the
victim's desire to end the relationship and lent credence to the claim that the victim resisted
defendant's advances before her death. Thus, the evidence was relevant to a motive for murder
and indirectly relevant to a CSC offense by making a lack of consent more probable. Moreover,
the trial court instructed the jury consistently with CJI2d 4-11 to limit the use of the evidence to
its proper purpose.5 Because "[j]urors are presumed to follow their instructions, and instructions
The trial court instructed the jury:
You have heard evidence that was introduced to show that the defendant
engaged in actions for which he is not on trial. I refer to testimony that [the victim]
spoke to several acquaintances that the defendant made threats to her, and that he
are presumed to cure most errors," People v Abraham, 256 Mich App 265, 279; 662 NW2d 836
(2003), we find that plain error did not affect defendant's substantial rights, Coy, supra at 12.
In sum, we find no plain, outcome-determinative error in the trial court's admission of the
victim's statements to others shortly before her death. The evidence was generally admissible
under MRE 803(3) to show the victim's state of mind, specifically her intent to end her
relationship with defendant, to reconcile with her ex-husband, and to resist defendant's sexual
demands. The evidence was therefore relevant to a motive6 for murder and indirectly relevant to
defendant's intent and to whether defendant acted with premeditation and deliberation.
Moreover, even if we were to conclude that the admission of the victim's hearsay statements was
plain error, we would not reverse on this basis in light of the other properly admitted evidence
that convinces us that the error did not result in the conviction of an actually innocent defendant
or that the error seriously affected the fairness, integrity, or public reputation of judicial
proceedings independent of defendant's innocence. Carines, supra at 763-764.
We next address defendant's claim that the trial court abused its discretion by admitting
evidence that defendant had a sexual fetish regarding women's underwear and personal feminine
hygiene products. As noted already, the record suggests that defendant preserved an objection to
this evidence on the basis that its probative value was significantly exceeded by the danger of
unfair prejudice. MRE 403. We begin our analysis of this issue by assuming, without deciding,
that the trial court abused its discretion by allowing this sexual fetish evidence. Accordingly, the
alleged error will merit reversal only if, when viewed it the context of the entire trial, it
affirmatively appears more probable than not that the error was outcome determinative. Lukity,
supra at 495-496.
It was undisputed at trial that defendant killed his girlfriend, with whom he lived, while
she was lying on the bed in the bedroom the couple shared in the victim's home. Where and
engaged in unwelcome sexual acts with her. If you believe this evidence, you must
be very careful only to consider it for certain purposes. You may only think about
whether this evidence tends to show either that the defendant had a reason to
commit the crime and/or that the defendant specifically meant to kill [the victim]
and/or that the defendant acted purposefully; that is, not out of an uncontrollable
passion. You must not consider this evidence for any other purpose.
For example, you must not decide that it shows that the defendant is a bad
person, or that he is likely or prone to commit crime. You must not convict the
defendant here because you think he is guilty of other bad conduct. All the
evidence must convince you beyond a reasonable doubt that the defendant
committed the alleged crime, or you must find him not guilty.
Proof of motive is always relevant in a prosecution for murder. People v Rice (On Remand),
235 Mich App 429, 440; 597 NW2d 843 (1999).
when the murder occurred were established by both the victim's blood in the bedroom and the
victim's son who testified that the victim and defendant were together in the victim's upstairs
bedroom. The evening of the murder, the victim's son heard two loud bangs, like something
heavy dropped on the floor. He did not hear his mother cry out or scream. A few minutes later
when defendant came downstairs and was asked about the noise, he said he dropped a couple of
things. Defendant admitted to the police that he struck the victim two or three times with a
baseball bat. He also admitted to the police that he was jealous of the victim's ex-husband and
that he might have "snapped." At trial, defense counsel acknowledged that defendant killed the
victim, but argued the killing was not planned or premeditated; rather, counsel argued that
defendant was obsessed with the victim and "snapped." Dr. Stephen Cohle, a forensic
pathologist, testified that the victim died from severe head injuries (craniocerebral trauma)
consistent with blows from a baseball bat. Dr. Cohle opined that "it would take an adult person
using virtually all of his or her might to swing the bat to cause that kind of injury."
Dr. Cohle also testified that the victim sustained a vaginal injury that would have caused
excruciating pain and was consistent with a baseball bat having been forced into her vagina.
Defense counsel argued that the vaginal injury occurred after the victim's death. But Dr. Cohle
concluded that the victim's vaginal injury occurred while she was still alive because of the
condition of the tissue where the injury occurred. Further, two separate areas of blood saturation
on the mattress in the bedroom where the murder occurred indicated the victim bled profusely
from both her head and vagina. Dr. Cohle testified that this evidence was consistent with his
opinion that victim was alive when she sustained the vaginal injury.
We conclude, in light of the evidence summarized above, that any error in the admission
of the evidence of defendant's having a sexual fetish was not outcome determinative. Therefore,
error warranting reversal did not occur. MCL 769.26; MCR 2.613(A); Lukity, supra at 495-496.
Next, defendant argues that the trial court abused its discretion by denying defense
counsel's pretrial motion to withdraw. People v Traylor, 245 Mich App 460, 462; 628 NW2d
120 (2001). Because good cause for substitution of counsel did not exist, we disagree.
"'An indigent defendant is guaranteed the right to counsel; however, he is not entitled to
have the attorney of his choice appointed simply by requesting that the attorney originally
appointed be replaced. Appointment of a substitute counsel is warranted only upon a showing of
good cause and where substitution will not unreasonably disrupt the judicial process. Good
cause exists where a legitimate difference of opinion develops between a defendant and his
appointed counsel with regard to a fundamental trial tactic.'" Id., quoting People v Mack, 190
Mich App 7, 14; 475 NW2d 830 (1991). People v Williams, 386 Mich 565, 574; 194 NW2d 337
(1972). When a defendant asserts that the defendant's assigned attorney is not adequate or
diligent, or is disinterested, the trial court should hear the defendant's claim and, if there is a
factual dispute, take testimony and state its findings and conclusion on the record. People v
Ginther, 390 Mich 436, 441-442; 212 NW2d 922 (1973).
The record in the present case shows that defendant refused to communicate with defense
counsel after counsel informed defendant that the prosecutor would not accept a plea to any
charge less than first-degree murder. At the hearing on defense counsel's motion, the prosecutor
confirmed that defense counsel attempted to negotiate a plea to a lesser charge and that there was
no possibility of defendant receiving a plea offer with a sentence less than mandatory life in
prison. The prosecutor reported at the hearing that "from the first day the position of our office,
the position of the investigators, the position of the victim's family, the position of the
community of support for abused women is that [defendant] will not receive any offer to plead
guilty which does not include mandatory life in prison without the possibility of parole under
any circumstances whatsoever." Given this strong language, the trial court noted that the
prosecutor's position was unlikely to change even if new defense counsel were appointed. This
record provides no legitimate difference in opinion on a fundamental trial tactic that would
require substitution of counsel. Therefore, we conclude that the trial court did not abuse its
discretion when it denied defense counsel's motion to withdraw as counsel.
Next, defendant argues that he was denied a fair and impartial trial after a courtroom
outburst by the victim's brother. Defendant moved for a mistrial, which the trial court denied.
We review for an abuse of discretion a trial court's decision on a motion for a mistrial. Coy,
supra at 17. Here, the record indicates that despite the courtroom outburst, the trial court
scrupulously acted to ensure that defendant's right to a fair and impartial trial was preserved. We
therefore find that the trial court did not abuse its discretion in denying defendant's motion for a
A trial court should grant a mistrial "only for an irregularity that is prejudicial to the
rights of the defendant and impairs his ability to get a fair trial." People v Ortiz-Kehoe, 237
Mich App 508, 514; 603 NW2d 802 (1999). When a motion for a mistrial is premised on the
unsolicited outburst of a witness, it should be granted only where the comment is so egregious
that the prejudicial effect cannot be cured. People v Gonzales, 193 Mich App 263, 266; 483
NW2d 458 (1992).
We conclude that the courtroom disruption did not constitute adequate grounds for the
trial court to grant a mistrial. The record shows that the trial court twice questioned the jurors
regarding their ability to disregard the outburst and to remain fair and impartial. The court was
also meticulous in the steps it took to ensure that defendant received a fair and impartial trial. In
addition, the person yelled that defendant had killed his sister, and, here, defendant did not
dispute that he killed the victim. Defense counsel only argued that defendant's crime was less
than first-degree murder. While the outburst certainly momentarily disrupted the trial, it was not
"so egregious that the prejudicial effect can be removed in no other way." Id. at 266. Further,
the trial court instructed the jury that the outburst was not evidence. Jurors are presumed to
follow their instructions, People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), and
instructions are presumed to cure most errors, Abraham, supra at 279. Accordingly, the trial
court did not abuse its discretion when it denied defendant's motion for a mistrial.
/s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Janet T. Neff