Defendant Clarence Herndon appeals as of right his jury conviction of first-degree murder
I. Basic Facts
Tammy Sperle worked in the prison store at the Huron Valley Men's Facility (HVMF) in Washtenaw County. Herndon worked at the prison store for about four weeks in the summer of 1994; at least part of that time was with Sperle. Though Sperle evidently had no complaints about Herndon's conduct, she asked prison officials to reassign him to another position elsewhere in the prison when an injury Herndon sustained prevented him from being able to lift heavy items, as the job required. When removed from his position at the prison store, Herndon filed a grievance. He also tried to be reinstated at the prison store several times, with the latest attempt on December 13, 1995.
Sperle went to work at the prison store on February 5, 1996. She met with Herndon and other inmates who served on the prison store committee, which met between and 10:00 a.m. The store committee generally made recommendations to the storekeeper, Sperle, regarding what items to stock and the price at which to sell items. At this meeting, the committee members were given samples of soup to determine if the prison store should sell it.
At approximately 11:30 a.m., prison employee John Jeffries spoke with Sperle on the telephone, but when he walked past the prison store at 11:45 a.m., he noticed that it was closed. When Perry Taylor, an HVMF employee who worked in the prison warehouse, went to the store between 1:15 p.m. and 1:30 p.m. to deliver supplies, he discovered Sperle's body on the floor. Sperle was lying on her back, her arms were extended, and she was surrounded by blood. Taylor used his key to enter the storeroom from a hall, but saw that another door that led to the front entrance to the prison yard was open. When he saw Sperle's body, Taylor immediately notified the corrections officer sitting outside the door that Sperle needed medical attention.
Harvey Dutcher, a hearing investigator at the prison, responded to the calls for help. He observed that Sperle looked as if she had been beaten badly, her face was bloody, and some of her teeth had been knocked loose. Dutcher checked for Sperle's pulse and when he did not feel one, he started cardiopulmonary resuscitation (CPR), but failed to revive Sperle. When Lola Garland, a resident nurse manager at the prison, arrived at the scene she performed mouth-to-mouth resuscitation while Dutcher performed chest compressions. She observed that Sperle's chest did not rise as expected when she blew air into Sperle's mouth. Garland believed that the victim was already dead because Sperle's skin was pale and cold. Dutcher and Garland both noticed a cup of instant soup lying on the floor a few inches from Sperle's body.
James Whiteman, a nurse at the prison, joined Dutcher and Garland in less than a minute after he received the distress call.
Prison officials sounded an alarm at 1:45 p.m. According to Sergeant Lee Boardman and Ronald Koch, resident unit officers (RUO) in Herndon's housing unit at HVMF, the alarm required prison employees to lock all doors and secure the inmates in their cells so the employees could account for all the inmates. Neither man knew why the alarm had sounded, but they were instructed to do a room-to-room search to determine if any inmates had abrasions, marks, or cuts on their hands. Boardman and Koch both observed that Herndon had cuts and bruises around his fingers or knuckles; he was the only inmate with wounds that looked fresh.
After checking the other inmates, RUO Koch and resident unit manager (RUM) Dennis Hammond returned to Herndon's cell to ask him how he injured his hands. When Herndon gave conflicting stories, they placed him in handcuffs and took him to a segregation area, where Herndon was strip-searched and his shoes were confiscated. Prison officials subsequently searched Herndon's cell and seized a blue jacket with dark stains, a pair of green pants, and a pair of damp gloves. Their investigation into Herndon's whereabouts before, during, and after the murder revealed that, following the prison store committee meeting, HVMF staff checked Herndon into his cell at 10:35 a.m. Herndon was released for lunch at approximately 11:55 a.m. and did not return until 12:50 p.m., even though he was only supposed to be gone thirty-five to forty minutes. At 1:00 p.m. Herndon was released unescorted with other inmates to go to the field house or to the yard.
Ervin Brown, an inmate who worked in the prison laundry in February 1996, was able to account for some of Herndon's time on the day of the murder. Brown said that Herndon brought him soup at approximately 10:00 a.m. Herndon then approached Brown in the laundry room at about 1:00 or 1:15 p.m. Brown thought that Herndon looked nervous or tense and had some blood on his face, which Brown removed with a soapy towel. Herndon reportedly asked Brown to wash his jacket and a pair of gloves, which Brown saw had blood on them. Brown asked Herndon if something was wrong and Herndon purportedly replied, "[D]on't worry about it. The less you know the better." Herndon then left the laundry, but returned approximately forty minutes later to retrieve the laundered jacket and gloves. At that time he gave Brown a pair of pants and a shirt to be washed immediately. Brown saw what appeared to be blood spots on the pants and told Herndon that he wanted to know what was going on and Herndon replied that "in a few minutes they were going to find a body." Brown said that he put the shirt and bloody pants in the blood pathogen hamper because the police did
DNA analysis conducted as part of the investigation into this crime revealed that Herndon's pants, jacket, and shoes had blood on them that matched Sperle's blood. Fingerprint analysis revealed that one of Herndon's fingerprints was on the soup container that was lying on the floor next to Sperle's body.
Herndon, who testified at trial, disclaimed any part in the murder and denied that the shoes and clothing introduced into evidence belonged to him. He explained that following the prison store committee meeting he gave inmates Brown and Johnson soup samples. According to Herndon, he injured his knuckles when he passed the soup sample through the food slot in Johnson's cell. He also said that he did not go to the dining room on the day of the murder. Instead, he went to the day room and had his soup sample for lunch. He was locked up from 12:45 p.m. until 1:00 p.m., when he went to the utility room to play chess. When he heard the alarm, he returned to his cell. Because his theory was that another inmate killed Sperle, Herndon called several other inmates to testify regarding who they believed had a reason or opportunity to commit the murder. For instance, one inmate stated that he saw inmate and prison store worker James Friar, who looked nervous, sitting on a bench near the prison store at around the time of the murder. Also, two weeks before the murder, inmate Steven Foster, another prison store worker, reportedly threatened to kill Sperle and, on the day of the murder, he cut himself shaving and used a towel to wipe away the blood. Despite this evidence on behalf of the defense, the jury convicted Herndon of Sperle's murder.
II. Arguments On Appeal
By our count, and even when combining arguments as logic dictates, Herndon has raised no less than eighteen issues in his appeal. While some issues stand alone, the vast majority relate to the evidence admitted or excluded at trial, with issues regarding pretrial procedure comprising the next largest category. For the most part, though Herndon has done his best to make each of these issues appear to be constitutional in nature, this is a routine appeal in the sense that most of the issues he raises are raised frequently in other appeals and properly considered without an analysis that focuses on constitutional principles. With plentiful case law defining the analysis on the majority of these issues, we attempt to avoid muddying the legal waters by providing only a brief examination of all but one of these issues. That single issue, which merits publication, is the one we address first: whether M.C.L. § 750.316(1)(c), prohibiting murder of corrections officers, violates due process.
III. The Murder Statute
A. Standard Of Review
Whether a statute violates due process
At the time Sperle was murdered, the first-degree murder statute, M.C.L. § 750.316, provided in relevant part:
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The statute defined a "corrections officer" to include a "prison or jail guard or other prison or jail personnel."
Herndon contends in part that this murder provision concerning only peace and corrections officers violates due process because it does not require the prosecutor to prove that he had a guilty intent at the time of the homicide, in effect making any killing of a peace or corrections officer a strict liability crime. A strict liability crime "impose[s] certain penalties regardless of the actor's criminal intent and regardless of what the actor actually knew or did not know."
Further, after explaining the genesis of the mens rea requirement under English common law,
Nevertheless, the Michigan Supreme Court has indicated that the crime of murder, no matter its type, requires proof of intent.
MCL 750.316(1)(c) consists of four elements. First, that the defendant committed a murder. Second, that the victim was a "peace officer or corrections officer." Third, that the victim was "lawfully engaged in the performance of any of his or her duties as a peace officer or corrections officer." Fourth, that the defendant knew the victim was a peace officer or corrections officer performing lawful duties at the time of the murder.
The first element under M.C.L. § 750.316(1)(c) incorporates the proof necessary to sustain a conviction for murder. The crime of murder is defined by statute in Michigan and may be first-degree deliberate and premeditated murder,
We conclude that M.C.L. § 750.316(1)(c) cannot and does not create a strict liability crime because, to be convicted of murder under its provisions, the prosecutor must prove beyond a reasonable doubt all the elements of one of these three forms of murder, each of which requires proof of a specific or general intent. The trial court in this case related this very information to the jury in its closing instructions, informing the jury that it had to find that Herndon "had one of these three states of mind: he intended to kill, or he intended to do great bodily harm to Tammy Sperle, or he knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of his actions."
Herndon's related argument that M.C.L. § 750.316(1)(c) is essentially unconstitutional because a person who "only" committed second-degree murder could have his conviction elevated to first-degree solely on the basis of the victim's status, a strict liability element, is also unpersuasive. Michigan law is not offended when a statute has a single strict liability element.
As for Herndon's argument that the statute impermissibly prevents a jury from ever convicting a defendant of second-degree murder when the prosecutor also relies on murder under M.C.L. § 750.316(1)(c) as a theory of criminal liability, this argument, too, is ultimately unpersuasive. Though the prosecutor exercises charging discretion, the jury is free to interpret the evidence when presented with a choice between conviction for second-degree murder and first-degree murder under the corrections officer provision. The facts of a particular case may indicate that the defendant was unaware that the victim was a peace or corrections officer, making conviction under this statute impermissible while nevertheless supporting a second-degree murder conviction. Alternatively, the jury may completely disregard evidence of the defendant's knowledge concerning the victim, preferring lenience and a second-degree murder conviction.
IV. Prearrest Delay
A. Standard Of Review
Herndon argues that the trial court erroneously denied his motion to dismiss, which had been based on prearrest delay. Whether to grant a motion to dismiss is entrusted to the trial court's discretion, meriting review for an abuse of discretion.
B. Actual And Substantial Prejudice
Sperle was murdered on February 5, 1996, and Herndon was arrested and arraigned on the murder charges on June 12, 1997. This delay was prejudicial, Herndon contends, because he was "illegally" detained in segregation, was denied access to personal and legal property, was denied use of a telephone and visitation, and eventually was unable to recall the events that occurred on the day of the murder and the names of prisoners who could have assisted in his defense. According to the prosecutor, this delay occurred because the police continued to investigate the crime by conducting witness interviews and performing DNA tests, which were not complete until April 28, 1997. The court ruled that defendant did not show actual prejudice due to the delay, but that even if he had suffered prejudice, the ongoing investigation justified the delay.
The trial court was correct in its analysis and conclusion.
V. Charging Discretion
A. Standard Of Review
Herndon contends that the prosecutor erred in bringing two separate charges of murder against him when only one murder occurred in this case. We "review a charging decision under an `abuse of power' standard, questioning whether a prosecutor has acted in contravention of the constitution or the law."
B. Alternative Theories
The parties also agree that the prosecutor was free to use alternative statutory theories to support a single murder charge in this case.
In reviewing the record to analyze this issue, we came across two other small errors in the judgment of sentence that, while not meriting substantive relief to Herndon, nevertheless require us to remand this case so that the trial court can correct these errors administratively.
A. Standard Of Review
Herndon argues that the district court erred in binding him over for trial and the circuit court erred in denying his motion to quash the information because there was insufficient evidence of the charges. We review the district court magistrate's decision on bindover for an abuse of discretion and review de novo the circuit court's decision to deny the motion to quash because it concluded that the magistrate had not abused her discretion.
B. Probable Cause
In order to bind over a defendant for trial, the district court magistrate must determine that a crime was committed and that there is probable cause to believe that the defendant committed the crime.
We flatly reject Herndon's argument that the bindover was erroneous in this case because there was insufficient evidence that he had committed felony-murder. The magistrate did not bind him over for trial on a felony-murder charge. As for Herndon's argument that the magistrate abused her discretion in binding him over for trial because she relied on legally
VII. Motion To Suppress
A. Standard Of Review
Herndon claims that the trial court erred in denying his motion to suppress the inconsistent statements he made to explain how he injured his hand because RUO Koch and RUM Hammond did not give him Miranda
B. Custodial Interrogation
Miranda warnings are necessary only when the accused is interrogated while in custody, not simply when he is the focus of an investigation.
Herndon was in prison for an unrelated offense at the time RUO Koch and RUM Hammond questioned him. Thus, he was in "custody" at the time he was questioned. However, there was no nexus between his "custody" and his "interrogation"; that is, Herndon "was not taken into, or maintained in, custody to facilitate his interrogation."
Contrary to Herndon's related argument that the statement he made was the product of coercion, the trial court did not clearly err in finding that the statement was freely made. Herndon has never demonstrated that he would have been subject to any particular penalty, such as
VIII. Warrantless Search
Herndon claims that corrections officers violated his Fourth Amendment rights by searching his cell without a warrant while he was in administrative segregation and that the trial court erred into admitting into evidence the personal items they seized during the search. We disagree. Herndon lacks a reasonable expectation of privacy in his prison cell and, therefore, the Fourth Amendment does not protect him against searches of his cell.
IX. Gross Medical Negligence
A. Standard Of Review
Herndon contends that the trial court erred in denying his motion to appoint a medical expert and in striking two nurses from his witness list, each of whom, he claims, would have supported his defense of intervening cause of death. We review these questions for an abuse of the trial court's discretion.
B. Intervening Cause
Before trial, Herndon asked the trial court to appoint a medical expert so that he could establish that negligent efforts to resuscitate Sperle caused her death, not strangulation. The trial court ruled that it was unnecessary to appoint a medical expert to support this intervening cause defense
Herndon's argument has some merit. As a practical matter, a defendant may be entitled to have an expert available to help prepare for a trial, even if the expert does not provide a complete defense to criminal liability but, for instance, helps the defense by impeaching the prosecution's experts.
More importantly, "[i]n the medical treatment setting, evidence of grossly negligent treatment constitutes evidence of a sole, intervening cause of death. Anything less than that constitutes, at most, merely a contributory cause of death, in addition to the defendant's conduct."
In any event, this argument is unavailing because the intervening cause doctrine concerning grossly negligent medical care applies to nonfatal wounds that the defendant could not anticipate
Modern courts have made the similar observation concerning the difference between fatal and nonfatal injuries when applying or rejecting the intervening cause doctrine.
X. Late Witness Endorsement
A. Standard Of Review
Herndon contends that the trial court erred in allowing the prosecutor to call corrections officer (CO) Scott Bentley to testify at trial even though he had not been endorsed on the prosecutor's witness list before trial. We review the trial court's decision to determine if it abused its discretion.
B. Good Cause
In his opening argument, the prosecutor told the jury that the evidence would show that the shoes on Herndon's feet were taken from him when he was strip-searched and that a speck of blood found on his shoes matched Sperle's blood. On direct examination by the prosecutor, RUM Hammond testified that he observed other corrections officers strip-search Herndon and take all the clothing that
MCL 767.40a(4) permits a prosecutor to endorse a witness "at any time upon leave of the court and for good cause shown or by stipulation of the parties." The prosecutor provided this good cause by demonstrating that he had not endorsed CO Bentley before trial because he thought RUM Hammond would be able to provide this testimony. It only became clear during trial that he needed to call CO Bentley to testify. While the source of the testimony may have been a surprise, the contents were not. Further, Herndon did not request a continuance, evidently satisfied with the brief opportunity to speak with CO Bentley before he testified. Thus, we see no abuse of discretion by the trial court, nor any prejudice to Herndon that would otherwise merit granting him a new trial.
XI. DNA Evidence
A. Standard Of Review
Herndon argues that the trial court erred in admitting the DNA evidence the prosecutor used to prove that the blood found on his clothing was Sperle's blood. Because he did not object at trial or request the pretrial hearing he now contends was necessary, Herndon has failed to preserve for appeal the several arguments that comprise this issue. Thus, our review is for plain error affecting his substantial rights.
B. Foundation; Probability
Herndon first specifically argues that the trial court erred in admitting the DNA evidence because the prosecutor did not establish a proper foundation for its admissibility at a pretrial hearing. He contends that this pretrial hearing was necessary so that the prosecutor would be obligated to prove that the laboratory staff that conducted the DNA analysis followed proper procedures before the jury heard of the evidence. The implication is that a jury might hear about DNA evidence that would be inadmissible if the prosecutor is allowed to establish the evidence's admissibility during trial.
Herndon concedes that Michigan case law does not require a pretrial hearing, and we decline the opportunity to require one. This is not to say that, when presented with a different case, this Court or the Michigan Supreme Court might require this sort of hearing; as some other jurisdictions have done.
Herndon also asserts that the DNA evidence lacked a proper foundation because there was a missing link in the chain of custody of one blood sample because Heather Spillane, the official who took the sample from Trooper Benke, did not testify at trial that she delivered the sample to the person who performed the DNA testing. However, because Herndon does not contend that Spillane actually lost, misidentified, or tampered with his blood sample, only that it is possible that she did so, there was no question at trial that the blood sample was genuine, and a break in the chain of custody is not a fatal flaw,
Herndon's final argument with respect to the DNA evidence is that the prosecution's DNA expert witnesses failed to give sufficient testimony concerning the statistical probability that the blood found on Herndon's pants and shoes was Sperle's blood. By Ann Montgomery's calculations, the DNA in the bloodstain found on Herndon's shoes resembled Sperle's DNA profile with a frequency of 1 in 3.3 million Caucasians, 1 in 15 million Hispanics, and 1 in 440 million African Americans. By Helton's calculations, the DNA in the bloodstain found on Herndon's pants resembled Sperle's DNA with a frequency of 1 in 62.5 billion Caucasians, 1 in 1.1 trillion Hispanics, and 1 in 1.1 trillion African Americans. Though we are aware that there can be serious problems with making these predictions because of a variety of factors, including insufficient data used for the purpose of comparison,
XII. Evidentiary Issues Preserved At Trial
A. Standard Of Review
We review for abuse of discretion a trial court's decision to admit or exclude evidence.
B. Pretrial "Admission"
Herndon argues that the trial court erred in allowing, over his objection,
Immediately after the prosecutor stopped playing the videotape, defense counsel conducted redirect examination of Herndon, at which time Herndon explained that the tape was only a portion of a lengthy hearing, noted the context in which his statement was made, asserted that he did not mean to say that he had committed a crime, and clarified that he was merely attempting to say that the officers were retaliating against him because of the nature of the charges against him. Herndon then reiterated that he has consistently denied responsibility for the death of the victim. During closing arguments, the prosecutor argued that Herndon made a Freudian slip when he referred to the murder of the victim as "my crime," thus suggesting that he was admitting guilt of the crime.
On appeal, Herndon first contends that this statement was not an "admission," and therefore inadmissible, because in the statement he did not concede his guilt of this crime. Statements against penal interest, such as a statement that admits guilt of a crime, are admissible under MRE 804(b)(3). However, whether Herndon truly admitted during the pretrial hearing that he had committed a "crime", making his statement admissible under MRE 804(b)(3), is irrelevant to our analysis. Here, the statement at issue was an admission of a party-opponent and thus properly submitted to the jury pursuant to
Nevertheless, Herndon claims, the trial court should have excluded the statement under MRE 403 as substantially more unfairly prejudicial than probative. However, as the trial court noted, this evidence was probative of Herndon's claim that he did not kill Sperle, which was an essential issue at trial. Further, Herndon took advantage of the opportunity the trial court granted him to explain the full context of the statement and his harassment theory. Thus, in comparison, any unfair prejudice that flowed from this statement was relatively less than its probative value, not substantially greater.
Herndon also argues that the "doctrine of completeness" required the trial court to allow him to play the entire videotape for the jury. MRE 106 states:
We see no error in the trial court's decision to allow Herndon to explain his alleged verbal mistake as well as the context in which he made it in lieu of playing a tape of a hearing that was not relevant at trial except for the portion the jury heard. This had the potential to be more compelling evidence in favor of the defense than the tape itself because Herndon could explain why he thought this was an inadvertent misstatement. Further, the portion of the videotape that the jury heard was not just a snippet in which Herndon referred to his "crime." Though brief, it did provide a context for the statement, that is, that prison employees were harassing him. Playing more of the videotape was unnecessary.
Herndon challenges several rulings the trial court made at trial. First, the trial court ruled inadmissible a letter inmate Burt Lancaster wrote reporting to investigators that he had overheard someone say that he (this other inmate) ought to kill Sperle, evidently before the murder. Second, when Inspector David Prough testified that he heard from others that inmate Foster had an injury to his hand around the time of the murder, the trial court struck that portion of his testimony, limiting defense counsel's examination to questions concerning how Inspector Prough conducted his investigation. Third, the trial court ruled inadmissible Sgt. Berry's police report in which he recorded that an inmate had accused inmate Foster of committing the murder. Fourth, the trial court sustained the prosecutor's objection to Detective Fredrick Farkas' trial testimony referring to his investigation of other inmates who may have committed the murder and a news release mentioning those other suspects. Taken together, Herndon says, these rulings denied him his right to present a defense, namely, his theory that another inmate killed Sperle.
The problem with Herndon's argument is that each and every one of these rulings properly excluded hearsay because they repeated an out-of-court statement "offered in evidence to prove the truth of the matter asserted."
D. Herndon's Job Dismissal
Herndon argues that the trial court erred in denying his motion to exclude evidence that Sperle had dismissed him from his job at the prison store when it concluded that the evidence was relevant to a motive to kill her. He contends that the approximately eighteen months that elapsed between his termination and the murder and the competing evidence that he bore no grudge against Sperle made this evidence irrelevant to motive. We disagree. Though Herndon was entitled to argue to the jury that he never bore any ill will toward Sperle, the evidence that Sperle had fired him coupled with the evidence that he sought to be reinstated to that position less than two months before the murder was particularly important to demonstrating his motive for the killing. Though motive is not an essential element
Before trial, Herndon asked the trial court to exclude the photographs of Sperle and the murder scene, claiming that they were only intended to inflame the jury because of their gruesome nature. The trial court denied Herndon's motion in limine to exclude these photographs, noting that all evidence submitted to a jury was likely to have some sort of prejudicial effect. However, ruling on the admissibility of each photograph individually, the trial court noted that not all were "offensive" in the sense that they were gory. The trial court concluded that the photographs of Sperle and the scene were relevant to proving malice and, at least with regard to the photograph of the soup container near her foot, to tie Herndon to the murder. The trial court took care to require the prosecutor to crop at least one photograph to remove a portion of the image that revealed that medical personnel had performed a tracheotomy on Sperle so that the jury would not confuse that injury with the injuries she sustained in the crime. We agree that these photographs were prejudicial, as is most evidence submitted by the prosecution, but not so unfairly prejudicial that they should have been excluded under MRE 403.
XIII. Sufficiency Of The Evidence
A. Standard Of Review
Herndon claims that there was insufficient evidence of premeditation, deliberation,
B. The Evidence
To determine whether Herndon's claim that there was insufficient evidence to convict him has merit, "this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt."
As for the question of motive, which would be additional circumstantial evidence of Herndon's premeditation,
Herndon claims that the evidence that Sperle was performing her official duties at the time she was murdered was insufficient to support a conviction under M.C.L. § 750.316(1)(c). We disagree. Sperle was killed in her workplace during work hours. When the evidence is viewed in the light most favorable to the prosecution, the jury could reasonably infer that she had no reason to be in that area of the prison other than to be doing her work.
XIV. False Testimony
A. Standard Of Review
Herndon argues that he is entitled to a new trial because the prosecutor elicited
B. CO Bentley's Testimony
Herndon claims that the prosecutor moved to endorse CO Bentley during trial because the prosecutor had to support his assertion, made during the opening statement, that Herndon's shoes bearing Sperle's blood had been taken from him during the strip search, not from his cell as other evidence suggested. As this Court explained in People v. Lester:
We have no reason to conclude that CO Bentley testified falsely. More importantly, there is no indication in the record that, even if he testified falsely, the prosecutor knew he would testify falsely. Herndon attempts to use the prosecutor's decision to endorse CO Bentley as a witness after trial began to support his theory that the prosecutor knew that CO Bentley would testify falsely. However, the prosecutor gave a perfectly plausible explanation for this late endorsement: he expected RUM Hammond to be able to provide this testimony, but it turned out that RUM Hammond had no direct recollection of seizing the shoes. We see no due process violation.
XV. Jury View
A. Standard Of Review
Herndon maintains that the trial court erred in denying his motion to bring the jury to HVMF. Whether to grant a motion for a jury view is entrusted to the trial court's discretion, which requires us to review the issue for an abuse of that discretion.
B. The Risk of Improper Communication
Herndon asked the trial court to allow the jury to view the scene of the murder. The trial court denied the motion, agreeing with the prosecutor that visiting HVMF not only posed a potential of physical danger, but that it also "posed the danger of prejudice and mistrial" from inmates yelling at the jurors in a way that might influence them. Further, the trial court noted, there was evidence on the record, including an aerial photograph and a diagram, that illustrated the layout of the prison for the jury and this layout was less critical in this case than in other cases.
MCL 768.28 and MCR 6.414(D) both permit a trial court, in its discretion, to allow the jury to visit a place where an event connected with the crime occurred. The court rule specifies that only a court officer may communicate with the jury "concerning a subject connected with the trial."
XVI. Reopening The Proofs
A. Standard Of Review
Herndon argues that the trial court erred in denying his motion to reopen proofs. We review this sort of alleged error for an abuse of the trial court's discretion.
B. The Proposed Testimony
Herndon asked the trial court to allow him to call two witnesses, one of whom had already testified, to tell the jury that Herndon had been applying for new jobs in the prison. The prosecutor contended that these witnesses were unnecessary because the prosecution did not dispute that Herndon was seeking a job in the prison. The trial court agreed, adding that the questions could have been asked already.
"Relevant in ruling on a motion to reopen proofs is whether any undue advantage would be taken by the moving party and whether there is any showing of surprise or prejudice to the nonmoving party."
XVII. Jury Instructions
A. Standard Of Review
Herndon contends that the trial court erred in granting the prosecutor's
B. False Statements
The trial court issued the following instruction to the jury:
Herndon contends that this instruction overemphasized the prosecutor's theory of the case and that, as a matter of law, his statements could not be used as evidence of his guilt because they were never proved to be false and did not relate to an element of the offense.
Quite plainly, the instructions strike a roughly even balance between favoring the defense and the prosecution. The trial court unequivocally informed the jury that the inconsistent statements alone did not prove Herndon's guilt and that there were several "innocent reasons" why a defendant might make such statements. The trial court also charged the jury to think about the evidence independently when determining whether the statements were in fact false; the trial court did not require the jury to accept that the statements were actually false. Thus, this instruction did not unduly favor the prosecution.
Herndon has not provided us with any authority supporting his argument that, for the jury to consider these inconsistent statements when pondering his guilt or innocence, the statements had to be directly related to an element of the offense in order "to be truly exculpatory." This proposition flies in the face of the jury's legitimate ability to consider circumstantial evidence when rendering a verdict.
XVIII. Cumulative Error
Herndon contends that the errors in this case, even if they did not individually require reversal, collectively denied him a fair trial, meriting a new trial. We disagree, having found no prejudicial errors that separately or cumulatively denied him a fair trial.
We affirm Herndon's conviction but remand the case to the trial court for administrative correction of the judgment of sentence