PEOPLE OF MI V RANDY JOSEPH FOSTER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellee,
v
No. 229440
Oakland Circuit Court
LC No. 2000-171925-FC
RANDY JOSEPH FOSTER,
Defendant-Appellant.
Before: Bandstra, P.J., Smolenski and Meter, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to commit murder,
MCL 750.83, and possession of a firearm during the commission of a felony, MCL 750.227b.
The trial court sentenced defendant as a third habitual offender, MCL 769.11, to a term of twenty
to forty years’ imprisonment for the assault conviction and a consecutive two year term for the
felony-firearm conviction. Defendant appeals as of right. We affirm defendant’s convictions
and sentences, but remand for correction of the presentence investigation report.
Defendant first argues that the trial court erroneously excluded evidence that the victim
had a criminal record. At trial, defendant sought to introduce evidence that the victim had
previously been convicted of possessing less than twenty-five grams of a controlled substance.
According to defendant, this evidence was relevant because it might have convinced the jury that
the victim was shot during the course of a drug deal gone bad. Defendant argues that such a
conclusion would have supported his theory that he shot the victim in self-defense.
The decision whether evidence is admissible is within the discretion of the trial court and
will not be disturbed on appeal absent a clear abuse of that discretion. People v Starr, 457 Mich
490, 494; 577 NW2d 673 (1998). Pursuant to MRE 404(b)(1), which governs the admission of
prior bad acts:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
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In People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114 (1993), amended 445 Mich
1205 (1994), our Supreme Court set forth the following test for determining whether to admit
prior bad acts evidence at trial:
Prior bad acts evidence is admissible if: (1) a party offers it to prove “something
other than a character to conduct theory” as prohibited by MRE 404(b); (2) the
evidence fits the relevancy test articulated in MRE 402, as “enforced by MRE
104(b)”; and (3) the balancing test provided by MRE 403 demonstrates that the
evidence is more probative of an issue at trial than substantially unfair to the party
against whom it is offered. [People v Hawkins, 245 Mich App 439, 447-448; 628
NW2d 105 (2001), citing VanderVliet, supra at 55.]
MRE 404(b) applies to the admissibility of evidence regarding the past acts of any person,
including the victim or a witness. People v Catanzarite, 211 Mich App 573, 579; 536 NW2d
570 (1995); People v Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991). Where a
criminal defendant seeks to admit evidence of the bad acts of another person, the defendant
“remains bound by the requirement that the evidence is not offered to prove conformity with
character.” Catanzarite, supra at 579.
In the present case, the defense theory was that defendant shot the victim in self-defense,
when the victim attacked defendant with a crowbar or tire iron. However, defendant presented
no evidence that the victim possessed a crowbar or tire iron at the time of the shooting.1 Further,
defendant presented no evidence that the victim approached, threatened, or attacked defendant in
any way. Indeed, the victim testified that he was approximately fifteen or twenty feet away from
defendant when he was shot. Finally, while a police witness testified that defendant had a
scabbed-over wound on his arm, some time after the shooting, defendant presented no evidence
indicating that he received that injury on the date of the shooting, or that the victim inflicted that
injury.
In light of the paucity of evidence supporting the theory of self-defense, defendant’s trial
counsel sought to introduce evidence of the victim’s criminal record. Counsel argued that this
evidence might have lead the jury to believe that the victim had attacked defendant because
something had gone wrong with a drug deal in which the victim was participating at the time of
the shooting. Defense counsel therefore argued that evidence of the victim’s criminal record
tended to support defendant’s theory of self-defense.
We conclude that the evidence of the victim’s prior drug convictions was not offered for
a proper purpose under MRE 404(b) because defense counsel’s reason for seeking admission of
this evidence relies on an impermissible inference. Defense counsel sought to convince the jury
that the victim must have been participating in a drug deal on the date of the shooting, simply
1
The victim did admit possessing a “jack handle” before the shooting, at the nearby car wash,
and conflicting evidence was presented regarding whether the victim possessed a crowbar or tire
iron after the shooting, as he sought assistance for his injuries. However, the victim expressly
denied that he had anything in his hands when he was shot, and his was the sole eyewitness
testimony on this subject.
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because he had a prior conviction for drug possession.2 This is the exact type of “character to
conduct theory” that is prohibited by MRE 404(b). Hawkins, supra at 447.
Further, even if the evidence had been offered for a proper purpose under MRE 404(b),
we would conclude that the evidence was properly excluded because it was relevant to neither an
element of the charged offenses nor to defendant’s theory of self defense. Pursuant to MRE 401,
relevant evidence is defined as “evidence having 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.” In Michigan, the test for determining whether a defendant has
acted in lawful self-defense is whether: (1) the defendant honestly believed that he was in
danger, (2) the degree of danger which he feared was serious bodily harm or death, and (3) the
action taken by the defendant appeared at the time to be immediately necessary. People v
Deason, 148 Mich App 27, 31; 384 NW2d 72 (1985). The defendant is entitled to use only that
amount of force necessary to defend himself. Id. Further, the general rule regarding self-defense
“is that retreat to avoid using deadly force is required where it is safe to do so.” Canales, supra
at 574.
Evidence that the victim may have been involved in a drug transaction at the time of the
shooting, without more, does not tend to make it more probable that defendant shot the victim in
self-defense. There was no testimony or evidence offered at trial to indicate that the victim even
approached defendant, let alone threatened him. There was no testimony to indicate that
defendant reasonably believed himself in danger of suffering serious bodily harm or death, that
defendant used only as much force as necessary to defend himself, or that defendant lacked the
ability to retreat. Even if the victim was buying or selling drugs at the time of the shooting, that
fact alone would not tend to support a finding that he attacked defendant with deadly force.
Because the proffered evidence was not relevant to the issues involved in the case, we conclude
that the trial court did not abuse its discretion in excluding that evidence at trial.
Next, defendant argues that the trial court erroneously refused to instruct the jury
regarding his theory of self-defense. We review jury instructions in their entirety to determine
whether the trial court committed error requiring reversal. People v Crawford, 232 Mich App
608, 619; 591 NW2d 669 (1998). A court must instruct the jury so that it may correctly and
intelligently decide the case. Id. Jury instructions must include all the elements of the charged
offense and must not exclude material issues, defenses, and theories if the evidence supports
them. People v Canales, 243 Mich App 571, 574; 624 NW2d 439 (2000). However, a defendant
asserting an affirmative defense must produce some evidence on all elements of the defense
before the trial court is required to instruct the jury regarding that defense. People v Lemons,
454 Mich 234, 248; 562 NW2d 447 (1997); Crawford, supra at 619.
We conclude that the trial court did not err in refusing to instruct the jury on self-defense.
As set forth above, there was no evidence presented that defendant possessed a crowbar or tire
iron at the time of the shooting. There was no evidence presented that the victim threatened
defendant, that defendant honestly believed that he was in danger of serious bodily harm or
2
Further, defendant fails to explain how the victim’s mere possession of drugs on a prior
occasion made it more likely that the victim was dealing drugs on the date of the shooting.
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death, or that defendant’s action of shooting the victim appeared at the time to be immediately
necessary. Indeed, because the evidence indicated that defendant was sitting in a car and the
victim was on foot fifteen or twenty feet away, retreat was apparently available to defendant.3
The evidence admitted at trial did not support a theory that defendant shot the victim in selfdefense, and the trial court did not err in declining to instruct the jury on that theory.
Defendant next argues that the trial court erroneously admitted into evidence a sawed-off
rifle that defendant allegedly used to shoot the victim. Defendant contends that the prosecutor
failed to adequately link the rifle either to the crime or to defendant, and that he was therefore
deprived of a fair trial. Our review of the record reveals that defense counsel expressly waived
objection to admission of the rifle.4 Waiver is the intentional relinquishment or abandonment of
a known right, and “[o]ne who waives his rights under a rule may not then seek appellate review
of a claimed deprivation of those rights, for his waiver has extinguished any error.” People v
Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), quoting United States v Griffin, 84 F3d 912,
924 (CA 7, 1996). Because appellate review of this issue has been waived, we need not address
it.
Defendant next argues that he was denied a fair trial because a res gestae witness named
“Cody Stephens” was “never questioned by any law enforcement agency, interviewed by officers
of the court, or called upon to testify.” Defendant avers that this witness was “crucial” to his
defense, and that “his testimony would have dramatically affected the jury’s verdict.” Yet,
defendant fails to explain the identity of this witness, the subject of his anticipated testimony, or
the reasons why he failed to appear and testify at trial. Indeed, a thorough review of the lower
court record reveals no mention of an individual named “Cody Stephens.”5 Because defendant
has failed to adequately present and brief this argument, we decline to address it.
Defendant next argues that his trial counsel rendered ineffective assistance, in three
respects: (1) defense counsel failed to object to admission of the rifle into evidence, (2) defense
counsel failed to produce the res gestae witness “Cody Stephens” during trial, and (3) defense
counsel failed to offer into evidence a statement given by Daniel Stephens to police. We
conclude that defendants’ arguments regarding ineffective assistance are without merit.
In order to establish ineffective assistance of counsel, a defendant must demonstrate that
defense counsel’s performance fell below an objective standard of reasonableness under
3
In addition, the victim testified that he heard the vehicle speed away after he was shot.
4
When the prosecutor offered the rifle into evidence, defense counsel responded, “No
objection.”
5
Because defendant represents that the missing witness was “never questioned by any law
enforcement agency,” we conclude that defendant is not referring to Daniel Stephens, the
individual who was driving the car when defendant shot the victim. Daniel Stephens clearly
gave a statement to police, and one of defendant’s allegations of error on appeal is that Daniel
Stephens’ statement should have been admitted as substantive evidence at trial. Further,
defendant contends that the missing witness was never “called upon to testify,” and Daniel
Stephens was called upon to testify at defendant’s trial, but invoked his Fifth Amendment rights
and refused to do so.
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prevailing norms, and that there is a reasonable probability that, but for counsel’s error, the result
of the proceedings would have been different. People v Leonard, 224 Mich App 569, 592; 569
NW2d 663 (1997). Effective assistance of counsel is presumed and a criminal defendant bears a
heavy burden of proving that counsel was ineffective. Id. Further, because no record was made
in the trial court, our review of defendant’s ineffective assistance of counsel claim is limited to
the existing record. People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999).
With regard to defendant’s first ineffective assistance issue, we conclude that defense
counsel’s express waiver of any potential objection to the admission of the rifle was a matter of
trial strategy. “Decisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy.” People v Rockey, 237 Mich App 74, 76;
601 NW2d 887 (1999). Further, “[t]his Court will not second-guess counsel regarding matters of
trial strategy, and even if defense counsel was ultimately mistaken, this Court will not assess
counsel’s competence with the benefit of hindsight.” People v Rice (On Remand), 235 Mich
App 429, 445; 597 NW2d 843 (1999). The defense theory of the case, maintained from the very
beginning of trial, was that defendant shot the victim in self-defense. Because it would have
been inconsistent for defense counsel to argue that defendant was not the shooter, counsel
reasonably chose to forego such an argument and instead focused on defendant’s theory that the
victim attacked him with a crowbar or tire iron. The fact that defense counsel’s trial strategy was
ultimately unsuccessful does not render counsel’s performance constitutionally defective. Id.
With regard to defendant’s second ineffective assistance issue, defendant has failed to
adequately explain either the identity of the missing witness or the subject of his anticipated
testimony. Without such explanation, we cannot say that counsel was ineffective for failing to
call this witness at trial.
Defendant next argues that his trial counsel rendered ineffective assistance because she
failed to offer into evidence a statement given to police by Daniel Stephens, the driver of the
vehicle in which defendant was seated when he shot the victim. In an interview with the police,
which apparently took place eleven days after the date of the charged offenses, Stephens
maintained that the victim approached his car with a tire iron in his hand and began swinging the
tire iron, hitting defendant on the arm. Stephens claimed that he started the car and began to
drive away, but defendant pulled out a sawed-off rifle and shot the victim.6
Defendant contends that Stephens’ statement to police was admissible under MRE
804(b)(7), the “catch-all” hearsay exception applicable when a declarant is unavailable.7
Defendant further contends that his trial counsel’s failure to introduce Stephens’ statement was
prejudicial because that statement would have established that the victim attacked defendant with
6
Because the statement at issue was never made part of the lower court record, it is not properly
before this Court. Nonetheless, we will briefly consider the statement to determine whether
defendant’s argument has any merit. We conclude that it does not.
7
Because Stephens declined to testify by invoking his Fifth Amendment privilege, he was
“unavailable” within the meaning of MRE 804. People v Meredith, 459 Mich 62, 65-66; 586
NW2d 538 (1998).
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potentially deadly force immediately before the shooting, thereby enabling the trial court to
instruct the jury on self-defense.
For a hearsay statement to be admissible under MRE 804(b)(7), the statement sought to
be admitted must show particularized guarantees of trustworthiness. People v Smith, 243 Mich
App 657, 688; 625 NW2d 46 (2000), remanded on other grounds, 465 Mich 928 (2001).
Without such a showing, a statement will be deemed presumptively unreliable and therefore
inadmissible. Id. We conclude that Stephens’ statement does not bear sufficient indicia of
reliability to have been admissible at trial. The statement was not made contemporaneously with
the incident and was made to police officers during an interview. Further, the statement was not
made in the context of a narrative of events, at the declarant’s initiative without any prompting or
inquiry and were not, as a whole, clearly against the declarant’s penal interests. Finally, the
statement does not truly inculpate Stephens, but seeks to shift the blame for the shooting to
defendant. Therefore, Stephens’ statement does not qualify for admission under MRE 804(b)(7).
Even if Stephens’ statement qualified for admission under MRE 804(b)(7), “[d]ecisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy,” Rockey, supra at 76, and “[t]his Court will not second-guess counsel
regarding matters of trial strategy.” Rice, supra at 445. Defendant contends that failure to
introduce Stephens’ statement deprived him of the defense of self-defense. However, from the
context of Stephens’ statement, it appears that defendant’s trial counsel may have avoided
seeking admission of the statement as a matter of trial strategy. Stephens told police that he was
driving away from the scene when defendant pulled out a gun and shot the victim. Therefore,
introduction of Stephens’ statement would have been extremely damaging to defendant’s theory
of self-defense, which would have required a showing that defendant retreated if able to do so.
Because defendant has not shown that counsel made an error or that, but for counsel’s actions the
result of the proceedings would have been different, he has not established that his trial counsel
was constitutionally ineffective.
Finally, defendant argues that he is entitled to correction of his presentence investigation
report. We agree. Pursuant to MCL 771.14(6) and MCR 6.425(D)(3), a party may challenge the
accuracy of any information contained in the presentence report. If the court finds on the record
that the challenged information is inaccurate, that information must be stricken before the report
is transmitted to the department of corrections. At sentencing, defendant challenged the
accuracy of two statements contained in his presentence investigation report. The first statement
indicated that defendant declined to submit a written statement or discuss the offense. The
second statement indicated that defendant falsely reported to the probation officer that he had a
juvenile arrest for shoplifting. Although the trial court agreed to strike those two statements, it
appears that the report was not corrected before it was sent to the department of corrections.
Therefore, we remand to the trial court for the ministerial task of correcting defendant’s
presentence report as agreed on the record at defendant’s sentencing. Defense counsel should be
given an opportunity to review the corrected report before it is sent to the department of
corrections.
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Defendant’s convictions and sentences are affirmed and we remand for correction of the
presentence report. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Michael R. Smolenski
/s/ Patrick M. Meter
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