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APPENDIX TABLE OF CONTENTS

111 People of the State of Michigan v Terrance Anthony Fur line, unpublished opinion per curiam of the Court of Appeals, decided July 3, 2018 (Docket No. 335906), consolidated People of the State of Michigan v Alvin Bernard Jenkins, , unpublished opinion per curiam of the Court of Appeals, decided July 3, 2018 (Docket No. 336203) ................................... la-19a

111 Defendant Furline's Motion for Separate Trials, dated April 14, 2016 ............................... 20a-22a

• Hearing Transcript, dated May 5, 2016 ............................................................................... 23a-27a

111 Amended Affidavit in support of Motion for Separate Trials, dated May 5, 2016 ............. 28a-29a

• Opinion and Order, dated June 2, 2016, denying Defendant-Appellees' Motion for Separate Trials .............................................................. : ..................................................................... 30a-32a

111 Trial Transcript Excerpt-Volume 5 ....................................................................................... 33a

• Trial Transcript Excerpt - Volume 4 ....................................................................................... 34a

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STATE F IC I G

C T F PPE LS

PEOPLE OF THE STATE OF MICHIGAN,

P laintiff-Appellee,

V

TERRANCE ANTHONY FORLINE,

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

V

ALVIN BERNARD JENKINS, SR,

Defendant-Appellant.

Before: O'BRJEN, P.J., and CAVANAGH and STEPHENS, JJ.

PERCURIAM.

UNPUBLISHED July 3, 2018

No. 335906 Saginaw Circuit Court LC No. 16-042043-FH

No. 336203 Saginaw Circuit Court LC No. 16-042044-FH

Defendants appeal as of right their jury convictions of conducting a criminal enterprise, MCL 750.159i(l), third-degree arson, MCL 750.74, conspiracy to commit third-degree arson, MCL 750.157a; MCL 750.157a, first-degree retail fraud, MCL 750.356c, and conspiracy to commit fast-degree retail fraud, MCL 750.356c(2); MCL 750.157a. They were each sentenced as a fourth habitual offender, MCL 769.12, to 320 months to 50 years' imprisonment for all convictions. In both docket numbers 335906 and 336203, we vacate the defendants' convictions and sentences and remand for a new trial.

I. BACKGROUND

Defendants' convictions stem from a fire and attempted theft that occurred on October 29, 2015, at the Home Depot in Kochville Township, Saginaw, Michigan. The day before on October 28, there was a completed theft and fire at the Flint Township Home Depot. Defendants' devised to start a fire in the store as a distraction in order to steal and then return items without a receipt for store gift cards that were later sold to third parties for cash. An item

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taken :from the Flint Township Home Depot was returned without a receipt to the Lowe's store i11 Burton, Michigan. Signatures were required for the returns. Multiple employees, who were v1orking the morning shift at the Saginaw Home Depot on October identified defendants in court. Defendants were also identified by loss prevention personnel from the two home improvement stores' video surveillance footage. Vehicles used in the heists were identified by the defendants' girlfriends as belonging to them. Items of clothing similar to that worn by the persons seen in video surveillance were seized :from the respective girlfriends' residence where each defendantstayed. Jenkins's cellphone mapped his locatiqn as it. moyed to each store. Fire inspectors determined the cause of the fires at the Flint and Saginaw Home Depot stores to be arson. The fire at the Saginaw Home Depot in paiiicular caused over a half million dollars in damage.

II. DOCKET NO. 335906

In docket number 335906, defendant Furline seeks a new trial on grounds that his convictions were against the great weight of the evidence and the joinder of his trial with defendant Jenkins denied him a fair trial. He further seeks resentencing because he argues his sentence was unreasonable and not propo1tionate to the seriousness of the circumstances.

A GREAT WEIGHT OF THE EVIDENCE

We review de novo a challenge to the sufficiency of the evidence. People v Harver son, 291 Mich App 171, 177; 804 NW2d 757 (2010). "We view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the crime to have been proved beyond a reasonable doubt." People v

Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). "[A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict." People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). "The prosecutor is not required to present direct evidence linking the defendant to the crime." People v Saunders, 189 Mich App 494, 495; 473 NW2d 755 (1991). "Circumstantial evidence and reasonable irlferences arisirlg from that evidence can constitute satisfactory proof of the elements of a crime." People v. Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).

We review "a trial court's grant or denial of a new trial on the ground that the verdict was against the great weight of the evidence" for an abuse of discretion. People v Unger, 278 Mich App 210, 232; 749 NW2d 272 (2008). "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v Young, 276 Mich App 446,448; 740 NW2d 347 (2007).

"A trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." Unger, 278 Mich App at 232 ( citation omitted). "Conflicting testimony and questions of witness credibility are generally insufficient grounds for granting a new trial," and "[a]bsent exceptional circumstances, issues of witness credibility are for the trier of fact." Id. Generally, "a verdict may be vacated only when the evidence does not reasonably support it and it was more likely the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence." People v

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Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009). "[\V]hether the evidence was sufficient to sustain a conviction and whether the verdict was against the great weight of the evidence are two questions." People v Brown, 239 Mich App 735, 746 n 6; 610 NW2d 234 (2000). However, where, as here, the defendant's "great weight" argument is premised on his "sufficiency of evidence" claim, the failure or success of one argument necessarily means the same result for the other. Id.

F'urline arguesthat there wasjnsufficient evidence to c~nvict hitn of ''conducting a criminal enterprise" and, therefore, his conviction for this crime was against the great weight of the evidence, because there was no evidence of a "pattern of racketeering activity" or that the arson was done for financial gain. Under MCL 750.159i(l),

A person employed by, or associated with, an enterprise shall not knowingly conduct or participate in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity.

" '[R]acketeering' means committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit an offense for financial gain ... " MCL 750. l 59(g). To prove a "pattern ofracketeering," the plaintiff must show

"Pattern of racketeering activity" means not less than 2 incidents of racketeering to which all of the following characteristics apply:

(i) The incidents have the same or a substantially sirnnar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts.

(ii) The incidents amount to or pose a threat of continued criminal activity.

(iii) At least I of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity. [MCL 750.159f(c)].

Plaintiff further charged Fur line and Jenkins with first-degree retail fraud and third-degree arson under an aiding and abetting theory. To be convicted under an aiding and abetting theory, the plaintiff must prove:

(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 that [the defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006).]

Furline first argues that there was insufficient evidence to establish a "pattern of racketeering" to convict him of conducting a criminal enterprise because there was no evidence

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that he participated in "2 incidents of racketeering" or that "[t]he incidents amount[ ed] to or pose[ d] a threat of continued criminal activity." rvfCL 750.159f( c )(ii). The record does support the argument that Furline was not involved in setting the fire at or removing items from the Flint Home Depot. However, there was evidence of his knovvledge of the theft and subsequent participation in the activities underlying the fraudulent return of the stolen items. Furline's mother Doris Furline-Walker testified without contradiction that her son was merely present during the actual theft and arson at the Flint Home Depot. However her testimony to the contrary, t.here was. a receipt bearing her son's .name for the return ofthe item stolen fron1 the Flint store, that indicated he participated in the crime after the fire to obtain financial gain. We agree that Walker maintained that she was the one who did the non-receipt return, even after the court showed her the exhibit of the October 28 Home Depot return receipt with her son's signature. Wall(er also testified that she shared some of the profits of that return with her son. The jury could reasonably infer from Walker's testimony that Furline was involved in the Flint Home Depot offenses and that they were done for financial gain.

The argument of mere presence at the Saginaw Home Depot is also unavailing. Walker testified that Jenkins contacted her later on October 28 and asked if she wanted to go with him the next day to steal from the Saginaw Home Depot and she declined. However, the next day when Walker awakened, her son Furline was not home. Video surveillance, phone mapping evidence, and witness testimony showed Furline was at the Saginaw Home Depot with Jenkins. Evidence introduced at trial showed that once at the Saginaw Home Depot, Furline requested assistance from employee Mason Martinez with putting the most expensive power washer on a flatbed cart. After gathering other "big ticket items," the cart was passed to Jenkins who placed himself by the exit at the pro desk. This handoff between them was similar to the modus operandi at the Burton Lowe's store with the two faucets. Other evidence suggested Furline stayed behind in aisle 13 where employee Jacob Tyson noticed him just standing around and asked if he needed any help. Tyson testified that moments later Furline notified him of a fire in aisle 13. It is true that no one witnessed who started the fire and Walker testified that Jenkins admitted to her that he started the fire. However, when the fire started, video surveillance and employee Kathy Marciak's testimony placed Jenkins at the pro desk and Tyson's testimony placed Furline in aisle 13. Fire Captain Michael Comstock, Sergeant Lenny Jaskulka, and fire investigator Brandon Rossi all identified the origin of the frre to be in aisle 13. Further, there was no evidence of Furline being anywhere else in the store besides aisle 13 around the time the fire began, or of other persons besides hin1 being in aisle 13 when the fire started. From this evidence, a jury could reasonably infer that Furline was more than merely present at the scene with Jenkins at the Saginaw Home Depot on October 29 and that he was involved in the events that took place there. Further, Furline's calling the arson at the Saginaw Home Depot a "diversionary tactic," no less makes it an offense committed for financial gain under MCL 750.159(g). The fire was set for the purpose of stealing items that defendants could turn around and return for cash.

Furline also argues that the Flint and Saginaw incidents did not amount to or pose a threat of continued criminal activity under MCL 750.159f(c)(ii), because there was no evidence that defendants were planning a third theft or arson. Furlin.e's contention reads a requirement into the statute that does not exist. To prove a pattern of racketeering, there is no requirement of there being a plan of a third incident. Rather, the plaintiff must prove that two incidents of racketeering amounted to or posed a threat of continued criminal activity. The jury had

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sufficient evidence upon which to conclude that had the Saginaw plan succeeded there would have been another criminal effort. Other stores feared for such activity. In fact, Michael Stowe,

store manager at the Saginaw Home Depot, advised associates at their morning meeting of the possibility of the defendants coming there and for them to be on the lookout. Not only Home Depot, but Lowe's also understood the Flint arson and theft as posing a threat of continued criminal activity. The events at Flint caused the loss prevention manager at the Flint Township Lowe's store to reach out to the loss prevention manager at the Burton Lowe's store, only to find out that de.fendants had already been there, Defendants'. continued criminal activity was actually only interrupted by the failed attempt to remove over $1,000 in items from the Saginaw store. In keeping in line with their prior pattern of conduct, had their plan in Saginaw succeeded, another home improvement store would have fallen victim to defendant's non-receipt return scheme.

Viewed in a light most favorable to the prosecution, the evidence was sufficient from which a rational trier of fact could have found that Furline, acting in concert with Jenkins, entered the Flint and Saginaw Home Depots with the intent of starting fires to permanently deprive the stores of their property.

B. JOINDER

"The decision as to whether codefendants will be tried separately or jointly rests within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of that discretion." People v Hicks, 185 Mich App 107, 117; 460 NW2d 569 (1990). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Unger, 278 Mich App at 217.

In People v Hana, our Supreme Court held,

pursuant to M.C.L. § 768.5; M.S.A. § 28.1028, and MCR 6.12l(D), the decision to sever or join defendants lies within the discretion of the trial court. Severance is mandated under MCR 6.12l(C) only when a defendant provides the court with a suppotiing affidavit, or makes an offer of proof, that clearly, affrrmatively, and fully demonstrates that his substantial rights will be prejudiced and that severance is the necessary means of rectifying the potential prejudice. The failure to make this showing in the trial court, absent any significant indication on appeal that the requisite prejudice in fact occurred at trial, will preclude reversal of a joinder decision. [People v Hana, 447 Mich 325, 346-47; 524 NW2d 682, amended on reh in part sub nom. People v Gallina, 447 Mich 1203; 524 NW2d 710 (1994), and amended on reh in part sub nom. People v Rode, 447 Mich 1203; 524 NW2d 710 (1994)

According to Hana, a showing that defendants' separate defenses are " 'mutually exclusive' or 'irreconcilable' " would establish prejudice and mandate severance. Id. at 349. Further, defenses are "mutually exclusive," "if the jury, in order to believe the core of the evidence offered on behalf of one defendant, must disbelieve the core of the evidence offered on behalf of the co-defendant." Hana, 447 Mich at 349-350.

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Furline's counsel motioned the court for separate trials on April 14, 2016, based on discovery he received of Jenkins's recorded interview statements to detectives that disavowed involvement in the Saginaw Home theft and and blamed both events on Furline. Furline's counsel contended that Furline's theory of the case was that Jenkins acted alone in committing the arson and retail fraud. The motion went on to argue, that in the event Jenkins's videotaped statements were played for the jury, he would be denied his right to confrontation and a Bruton situation would arise. 1 Furline's counsel concluded that defendants' defenses were mutually exclusive: a11d antagonistic, and requested severance.of their trials to avoidthe prejudice that would result to Furline should he be forced to defend against Jenkins and the plaintiff. Furline made the same claims in his affidavit supporting the motion. Plaintiff's May 5, 2016 response argued Furline failed to demonstrate that severance was necessary, and replied that it did not intend to introduce statements made by either codefendant. At the hearing on the motion, Jenkins's counsel had no objection to separate trials. Plaintiff reiterated it had no intention to introduce the statements at trial and stated the statements would not be admissible through any other witness, unless either defendant testified. The court took the matter under advisement and later denied the motion. Noting that the plaintiff averred that it would not offer the statements of either defendant at trial, the court found that a joint trial would not "prejudicially pit one defendant against the other." The court viewed Furline and Jenkins's positions as, at best, "antagonistic claims as to who was responsible for setting the fire." It resolved that codefendant statements would only be introduced in the event either defendant chose to take the witness stand and then, subject to cross-examination.

In Hana, the Supreme Court considered whether the defendants in three consolidated cases were prejudiced by the trial courts' decisions to deny their motions for separate trials. In defendant Hana's case, involving two brothers Durid and Kafan Hana, it concluded no because Durid's affidavit in support of his severance motion was conclusory and thus insufficient to establish the requisite prejudice to mandate severance. In the defendants Rode's and Gallina's cases, the Court held the dual jury procedure was a sufficient form of severance to cure the risk of prejudice to the defendants' substantial rights where each defendant also testified that the other was responsible for firing a gun that resulted in their convictions for second-degree murder and felony-firearm.

The Hana Court found it dispositive that at the time the trial court decided defendant Dur id's severance motion, Durid' s accompanying affidavit "lacked sufficient specificity to enable the trial court to accurately determine what the defenses would be, how the defenses would affect each other, and whether the defendants' respective positions were indeed mutually exclusive or merely inconsistent." 447 Mich at 355. In Hana's case, the Supreme Court concluded

1 A Bruton situation is in reference to Bruton v. United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). "In Bruton v. United States, supra, the Court held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating unredacted confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant." People v Banks, 438 Mich 408,415; 475 NW2d 769 (1991).

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Potentially prejudicial evidence, either physical or testimonial, was not substantiated by the affidavit or at the heari11g. A trial court ruling on a pretrial motion must have concrete facts on which to base a ruling; mere fmger pointing does not suffice. In the absence of proof that clearly, affirmatively, and fully demonstrated that defendant's substantial rights were prejudiced and that severance was necessary, we vvill not interfere with the trial court's discretion. [Id.]

After determining that Durid's affidavit lacked such specificity, Hana's analysis continued to examine, with the benefit of hindsight, whether defendant Durid was actually prejudiced at trial. Beyond the opening and closing arguments of defense counsels, the Court noted there was "nothing inherently antagonistic in the evidence adduced at trial." Id. The Court made this statement in consideration of Dur id's and Kafan's statements to law enforcement being admitted at trial:

[Durid], after being advised of his rights, when asked about the safe that was found in his bedroom, stated that the safe belonged to him and that he knew the combination of it. He stated he kept his mother's jewelry, some personal papers and blank checks in the safe. He denied knowing there were three kilos of suspected cocaine in the safe. He said he shares the bedroom with his brother but he had no idea what his brother was doing. Id. at 355-356.

"Kafan never made a statement or even inferred that the drugs did not belong to him or were the sole property of his brother." Id. at 356. Based on that evidence, the Court determined the Banas' defenses were not mutually or irreconcilably antagonistic. It further held that because the prosecution's evidence was admissible against both defendants and the jury was provided with cautionary instructions to treat each defendant individually, no prejudice resulted. Id.

Under a Hana analysis, we find that the trial court abused its discretion in denying Furline's motion for separate trials. Unlike the court in Hana, at the time the motion was presented in this case, the trial comt had sufficient evidence to determine the codefendants' defenses were mutually exclusive. Both Furline's motion, and mirroring affidavit, attested to the undisputed evidence of recorded statements made by Jenkins not only denying his own involvement, but also blaming Furline for the incidents at the Saginaw Home Depot. The court was also specifically informed that Furline's defense would also be that he was not complicit in either the arson or the retail fraud, and that he blamed Jenkins for committing both offenses on his own. Thus, the court was fully apprised of the specifics of the codefendants' mutually exclusive defenses and the potential prejudice from one defendant being pitted against another in order to prove each's innocence. Still, the court found any antagonism based upon the codefendants' statements was obviated since the prosecution agreed it would not offer any recorded, oral or written statements made by either defendant incriminating the other and honored that agreement at trial. Based on this information, the court's decision not to grant separate trials was outside the range of principled outcomes.

With the benefit of hindsight, we fmd that the court's decision to deny severance as having resulted in the codefendants being prejudiced at trial. The mutual exclusivity of the codefendants' positions was admitted at trial beyond counsels' opening and closing arguments

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with each codefendant having to prove the other's culpability through each witness's testimony. Walker in particular testified that Furline was not involved in the Flint Home Depot incident, that Jenkins told her he set the fire there, that Furline had only knov1n Jenkins for about a and that Jenkins wanted to repeat the Flint arson and retail fraud the next day at the Saginaw store. Without Furline having to testify himself, his mother's testimony was evidence that promoted his defense that it was Jenkins idea to commit arsons and thefts at home improvement stores and he had nothing to do with Jenkins' plan. Jenkins did not have a similar witness in his comer, but did cross~exarnine W.alker .and point out F'urline's. partisipation in the crimes through JoyRo_yal 's testimony that Furline signed for a no receipt return at the Burton Lowe's. This situation created what United States v Tootick, 952 F2d 1078 (CA 9, 1991), referred to as a subtle effect of joining defondants who have asserted mutually exclusive defenses. "All evidence having the effect of exonerating one defendant implicitly indicts the other. The defendant must not only contend with the effects of the government's case against him, but he must also confront the negative effects of the codefendant's case." Id. at 1083.

Plaintiff maintains that the act of finger pointing is to be expected by codefendants charged under an aiding and abetting theory, and does not establish mutually exclusive defenses. By definition however, mutually exclusivity of defenses does not concern codefendants' finger pointing, but whether the evidence at trial is such that "in order to believe the core of the evidence offered on behalf of one defendant, [the jury] must disbelieve the core of the evidence offered on behalf of the co-defendant." Hana, 447 Mich at 349-350. Significantly, in Hana the Court found it dispositive that neither brother/codefendant blamed the other, and in Rodes and Gallina, where the codefendants did testify, the Court found the use of separate juries sufficient to guard against prejudice. In the instant case, each defendant denied involvement in all incidents that occurred at the Saginaw store and completely blamed the other for what transpired. Further, they were not afforded any type of severance. Given that plaintiffs theory was one of aiding and abetting blaming both codefendants, and each codefendant attempted to introduce evidence blaming the other, the jury question turned from not whether the individual codefendants acted in concert to commit the crimes alleged, but which of the two was guilty. "That dilemma is not presented to dual juries." Id. at 360. When a dual jury procedure is employed, "[ e Jach jury is concerned only with the culpability of one defendant." Id. In other words, each separate jury is able to fmd its' own defendant innocent or guilty "without the uneasiness of inconsistency that would be presented to a single jury in a joint trial. The chance for prejudice is therefore significantly lessened." Id. At the least, these codefendants should have been granted separate juries to evaluate the evidence against each defendant. The court's decision to predicate the possibility of prejudice on the defendants' right to testify did not protect either defendant from the latent prejudice that would arise as each defendant pursued his mutually exclusive defense at trial. Accordingly, Furline and Jenkins should be afforded new trials, this time with some device of severance.2

2 We recognize that only Furline raised the issue of joinder, however, we have previously held that in a joint trial where only one defendant raised an issue requiring reversal, each defendant was entitled to reversal on the same basis. See People v Davis, 135 Mich App 602, 606; 354 NW2d 274 (1984):

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C. RESENTENCING

An issue is preserved for appeal when it was raised in and decided by the trial court. People v }lfetarnora Water Serv, Inc, 276 Mich Ap_p 376, 382; 741 NW2d 61 (2007). Furline did not argue below that his sentence was unreasonable or not proportionate therefore, the issue is unpreserved.

Vj f review de no vo "the proper 111terpretatio11 and application o fthe statutory ~entencing guidelines, MCL 777 .11 et seq." People v Francisco, 4 74 Mich 82, 85; 711 NW2d 44 (2006).

"We review for an abuse of discretion whether a sentence is proportionate to the seriousness of the offense." People v Armisted, 295 Mich App 32, 51; 811 NW2d 4 7 (2011 ).

In People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), the Michigan Supreme Court found Michigan's sentencing guidelines constitutionally deficient to "the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the 'mandatory minimum' sentence under Alleyne [v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013)]." After Lockridge, a sentencing court was no longer required to articulate substantial and compelling reasons for departing from the applicable guidelines range. Lockridge, 498 Mich at 364-365. Instead, "a guidelines minimum sentence range calculated in violation of Apprendi [v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000),] and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness." Lockridge, 498 Mich at 365. "The appropriate procedure for considering the reasonableness of a departure sentence is not set forth in Lockridge." People v Steanhouse, 313 Mich App 1, 42; 880 NW2d 297 (2015), affd in part, rev'd in part 500 Mich 453; 902 NW2d 327 (2017). In Steanhouse, this Court agreed that the principle of proportionality from People v Milbourn, 435 Mich 630; 461 NW2d l (1990), should apply to determine whether a departure sentence is reasonable. Under Milbourn, the principle of proportionality "requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances suuounding the offense and the offender." Milbourn, 435 Mich at 636. "In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender." Id. at 651.

The reasonableness review under Lockridge and application of Milbourn's principle of proportionality are only triggered when a sentence depaiis from the sentencing guidelines range. Lockridge, 498 Mich at 392. In People v Schrauben, 314 Mich App 181, 193; 886 NW2d 173, app den 500 Mich 860; 884 NW2d 580 (2016), where the defendant's recommended minimum sentence was zero to 17 months' imprisonment, the defendant appealed his sentence of a

Only defendant Davis has raised this issue on appeal. However, both defendants were tried in a joint trial. The trial comi's instructions applied to both of them. Moreover, this Court consolidated these appeals for purposes of decision. Under these circumstances, we believe that Calloway' s conviction must be reversed on the same basis as Davis's conviction. [Id.].

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minimum 16 months' imprisonment on the ground that he was entitled to an intermediate sanction. 3 The Court held,

[w]hen a trial court does not depart from the recommended minimum sentencing range, the minimum sentence must be affirmed unless there was an error in scoring or the trial court relied on inaccurate information. MCL 769.34(10). Defendant does not dispute that his sentence was within the recommended

. mi11irr1u111 guidelines range, i111d he does not argue thatJhe trialcourt relied on inaccurate information or that there was an error in scoring the guidelines. Therefore, this Court must affirm the sentence. [ Schrauben, 314 Mich App at 196].

The same result is required here. Fur line acknowledges that his sentence is within the sentencing guidelines range of 99 to 320 months therefore, we start from the presumption that his sentence is proportionate. People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008). His reasons for arguing that his sentence is unreasonable and not proportionate are that 1) it was at the top of the guidelines; 2) his prior offenses were not severe; 3) his prior record did not justify the instant sentence; 4) he should have been sentenced differently than his ringleader co-defendant; 5) the arson offense was mis-scored; and 6) the retail fraud offense was not scored. None of these factors overcomes the presumption of proportionality. The fact that his sentence is at the top of the guidelines is of no consequence because still, there was no departure. See Schrauben, 314 Mich App at 196. His prior record and level of culpability also do not overcome the presumption of proportionality. See People v Daniel, 207 Mich App 47, 54; 523 NW2d 830 (1994). Furline's other contentions with the scoring of his arson and retail fraud offenses were waived by counsel at sentencing who agreed the guidelines were proper at 99 to 320 months, stating, "I personally scored them. That is what I came up with, Judge." Even addressing Furline's scoring issues, the court was not required to independently score the guidelines for lower-crime-classes when sentencing on multiple concurrent convictions because "the guidelines range for the highest-crime-class offense would subsume the guidelines range for lower-crime-class offenses, and there would be no tangible reason or benefit in establishing guidelines ranges for the lower­crime-class offenses." People v Lopez, 305 Mich App 686, 691-692; 854 NW2d 205 (2014).

3 Under MCL 769.34(4)(a),

If the upper limit of the recommended minimum sentence range for a defendant detennined under the sentencing guidelines set forth in chapter XVII is 18 months or less, the court shall impose an intermediate sanction unless the court states on the record a substantial and compelling reason to sentence the individual to the jurisdiction of the department of corrections. An intermediate sanction may include a jail term that does not exceed the upper limit of the recommended minimum sentence range or 12 months, whichever is less.

Schrauben applied People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015), to the statute and determined that it was no longer mandatory to impose an intermediate sanction by replacing "shall" with "may." Schrauben, 314 Mich App at 194.

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Finding no error in the scoring or the information relied upon by the comi in sentencing, Fur line's sentence must be affirmed.

III. DOCKET NO. 336203

In docket number 336203, defendant Jenkins seeks a new trial on grounds that he was denied the effective assistance of counsel, his right to equal protection in the racial composition

. of the<jury, and.afair tri,11 bythe admission of ot~er acts c:vidence. pefendp,11t Jenkins · additionally argues he is entitled to a new trial based on jury instruction error and police

identification testimony.

A. SUBSTITUTION OF COUNSEL

"A trial court's decision regarding substitution of counsel will not be disturbed absent an abuse of discretion." People v Traylor, 245 Mich App 460,462; 628 NW2d 120 (2001). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).

As the Comi explained in Mack:

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. [People v Mack, 190 Mich App 7, 14; 475 NW2d 830 (1991) (citations omitted)].

" '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 Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011) quoting People v Bauder, 269 Mich App 174, 193; 712 NW2d 506 (2005). We will not find good cause to substitute counsel based on "[a] mere allegation that a defendant lacks confidence in his or her attorney" or "defendant's general unhappiness with counsel's representation." Strickland, 293 Mich App at 398. Neither will "disagreements with regard to trial strategy or professional judgment ... warrant appointment of substitute counsel[.]" Id. Instead, good cause will be found when "a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic, when there is a destruction of communication and a breakdown in the attorney-client relationship, or when counsel shows a lack of diligence or interest." People v McFall, 309 Mich App 377, 383; 873 NW2d 112 (2015) (citations and quotation marks omitted).

Jenkins was appointed Attorney Philip Sturtz on November 9, 2015, who represented Jenkins through his preliminary examination until May 26, 2016, when he was granted permission to withdraw as counsel by the court on the account of illness. On May 27, 2016, the court appointed Attorney William Cowdry to represent Jenkins. On August 2, 2016, while acting in pro per, Jenkins filed a Motion to Fire/Dismiss Counsel that argued Cowdry was ineffective and should be substituted by other appointed trial counsel, because he was dishonest and would not give Jenkins discovery.

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The court heard Jenkins's motion on August L 8, 2016. The court indicated that it would allow a new attorney if both defendants would waive thdr rights to a speedy trial, because the court \Vould not try the cases separately and did not want a lack of speedy trial claim. Jenkin.s stated he would not waive his right to a speedy trial and the court responded that he would have to go to trial with Cowdry. The court asked for a date when both defendants could appear to discuss a speedy trial waiver. This colloquy followed:

Jenkins., Tllereis .llo needtq even go thrqugh aUfaat. Just let him do it.

Court. Well, you said he is ineffective.· Do you want him or don't you?

Jenkins. I don't even want to be - I don't even want to be in jail. I am not even supposed to be in jail. So I feel I am not supposed to be in jail. So I am just going to let him go on and do whatever he got to do. If he going to do it the correct way I will just let him do it.

Court. Okay. Proceed to trial.

Cowdry. Very well.

Court. Make a time when you can see him, Mr. Cowdry.

Cowdry. I will.

The above excerpt indicates first, that Jenkins waived his right to argue the issue of his trial counsel's substitution because he canceled his request on the record before the court. Waiver extinguishes any enor. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). Second, because Jenkins's allowed Cowdry to continue to represent him and cut the court short of scheduling another hearing on the issue, the court did not make a final decision to deny him substitute counsel. There can be no abuse of discretion when no decision was made. In other light, the court's decision to further entertain the issue when Jenkins's co-defendant would be present, did not illustrate that the court forced Jenkins to make a decision one way or another. The court appropriately informed Jenkins that if he chose to dismiss Cowdry the trial could not go forward until new counsel was appointed and had the opportunity to prepare for trial, thus extending the trial date beyond the speedy trial timeline. In the end, Jenkins chose his counsel and proceeded to trial sooner rather than later, effectively withdrew his motion, and waived any subsequent objection.

B. EQUAL PROTECTION

When reviewing a Batson challenge under Batson v Kentucky, 4 7 6 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986),

the proper standard of review depends on which Batson step is before us. If the first step is at issue (whether the opponent of the challenge has satisfied his burden of demonstrating a prima facie case of discrimination), we review the trial court's underlying factual findings for clear enor, and we review questions of law de novo. If Batson's second step is implicated (whether the proponent of the

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peremptory challenge articulates a race-neutral explanation as a matter of law), we review the proffered explanation de novo. Finally, if the third step is at issue (the trial court's detenninations whether the race-neutral explanation is a pretex1 and whether the opponent of the challenge has proved purposeful discrimination), we review the trial court's ruling for clear enor. [People v Knight, 473 Mich 324., 345; 701 NW2d 715 (2005)].

Here, theseco11d step is involyed.

In Batson v Kentucky, supra, the United States Supreme Court held it was a violation of the Equal Protection Clause for counsel to use peremptory challenges to exclude members of a jury venire based on their race. Batson also provided the three-step process the trial comi is to follow to determine whether a defendant has shown exclusion based on race. The first step requires the defendant to show a prima face case of discrimination. People v Armstrong, 305 Mich App 230, 238; 851 NW2d 856 (2014).

To establish a prima facie case of discrimination based on race, the opponent must show that: (1) he is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race. [Knight, 473 Mich at 336].

If the defendant shows a prima facie case of discrimination, then the burden shifts to plaintiff to "rebut the defendant's prima facie case with a race-neutral reason for dismissing the juror." Armstrong, 305 Mich App at 238. This second step "does not demand an explanation that is persuasive, or even plausible." PurkettvElem, 514 US 765,768; 115 S Ct 1769; 131 LEd2d 834 (1995). "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror.. .. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v New York, 500 US 352, 360; 111 S Ct 1859; 114 L Ed 2d 395 (1991). "[A]t Batson's second step, a court is only concerned with whether the proffered reason violates the Equal Protection Clause as a matter of law." Knight, 473 Mich at 344. The prosecutor must "give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges." Batson, 476 US at 98 n 20. "Thus, if the government's explanation does not, on its face, discriminate on the basis of race, then we must find that the explanation passes Batson muster as a matter of law, and we pass to the third step of Batson analysis to determine whether the race-neutral and facially valid reason was, as a matter of fact, a mere pretext for actual discriminatory intent." Knight, 4 73 Mich at 344. For step three, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible." lvfiller-El v Cockrell, 537 US 322, 339; 123 S Ct 1029; 154 L Ed 2d 931 (2003). "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot." Hernandez, 500 US at 359.

Furline argues the court did not make findings in accord with Batson's three-step process and in particular, argues under the second step, that plaintiff failed to give a race-neutral

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explanation for dismissing two potential jurors, Venireperson Tateionia Lipsey and Venireperson Gary FowL.1<:es, who were both African-Americans. We disagree. In respect to both Lipsey and Fowlkes, plaintiffs reasons for their dismissals were tailored to the ' responses in voir di.re. For Lipsey, plaintiff stated he excused her because she said her father was prosecuted by his office and convicted of murder. This was a race-neutral explanation because it was based on something other than Lipsey's race. Hernandez, 500 US at 360. This Court has before upheld the fact that a veniremember had a relative prosecuted and convicted by the same prnsecutofs office c1s a Jegitimate · reason to exyrci~e a. peren:1ptory . challenge agaU1st the veniremember. See People v Eccles, 260 Mich App 379, 386; 677 NW2d 76 (2004) ("The prosecutor explained that a son of that proposed juror had previously been prosecuted and convicted by his office."); see also People v Howard, 226 Mich App 528, 535; 575 NW2d 16 (1997) (" ... the record reveals that the juror was dismissed primarily because he had an uncle with whom he was close who had been tried for murder, a race-neutral reason."). We therefore find that the court's finding as it related to Lipsey was not erroneous. Plaintiff similarly relied on Fowlkes' responses in voir dire. Fowkles first stated that it would be difficult for him to convict another African-American because he was African-American. After further questioning, Fowlkes agreed that he could make a determination based on the evidence without consideration as to race. Then Fowlkes stated that if he found the defendants not guilty, he would be outnumbered by the other jury members and it would be him against them. Plaintiffs reason for excusing Fowlkes was that he was concerned about his ability to be impartial. That was a race­neutral reason clearly based on the statements Fowlkes made in court. The court disagreed with plaintiffs characterization of Fowlkes's statements and granted the peremptory challenge based on Fowlkes's last statement that it would be him against the panel. This is another facially race­neutral explanation and therefore valid. Knight, 473 Mich at 337. Based on this record, we also conclude that the court did not en in upholding the exercise of plaintiffs peremptory challenge against Fowlkes.

Jenkins also contends the court did not comply with Batson protocol by articulating separate findings for each step in the three-step process. We disagree. The court's conclusion, that there was good reason to strike both jurors, directly after the plaintiff stated its reasons for peremptory removal constituted the court's finding that the reasons were race-neutral. The court's additional conclusion that there was sufficient cause to dismiss them constituted its finding that the reasons were not pretext. The court's ruling on the ultimate question of intentional discrimination makes the issue of whether the court made a finding that Jenkins shown a prima facie case of discrimination moot. Hernandez, 500 US at 365.

C. EVIDENTIAR Y CHALLENGES

"To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal." People v Aldrich, 246 Mich App l O 1, 113; 631 NW2d 67 (2001 ). Jenkins concedes this issue was partly unpreserved when he argues that while his attorney did object to some testimony, counsel did not object to the bulk of testimony. In cases of preserved evidentiary challenges, the trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Aldrich, 246 Mich App at 113. "An abuse of discretion occurs when the trial court's decision is outside the range of reasonable and principled outcomes." Kala) v Khan, 295 Mich App 420, 425; 820 NW2d 223 (2012). Unpreserved evidentiary enor is reviewed for plain error. People v Coy, 258 Mich App

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1, 12; 669 NW2d 831 (2003). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement a shmving of prejudice, -:i.e., that the error affected the outcome of the lower court proceedings." Carines, 460 Mich at 763 ( citation omitted).

Based on his counsel's failure to object, Jenkins also argues counsel was ineffective. ·This claim was pot preserved with !1.motionfor a new trial or an evidentiary he,aring in.the trial court. People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). An unpreserved ineffective assistance of counsel claim is reviewed for mistakes apparent on the record. Heft, 299 Mich App at 80.

Jenkins first challenges plaintiffs failure to provide pretrial notice of the intent and motive to introduce MRE 404(b) other acts evidence. Specifically, testimony that Flint Home Depot's loss prevention manager Justin Luczak was familiar with Jenkins, that Jenkins and Furline were involved in the Flint Home Depot frre and theft on October 28, and Royal's testimony that Furline made a no receipt return at the Burton Lowe's. Jenkins's argument for this claim is two sentences, therefore, we find it abandoned on appeal for failure to brief the merits. People v McPherson, 263 Mich App 124, 136; 687 NW2d 370 (2004).

Jenkins also argues that the testimony regarding the Flint Home Depot and Burton Lowe's events should not have been admitted against him because those events were inelevant, only showed a propensity for Jenkins to associate with Furline, and was more prejudicial than probative. We disagree. " 'Relevant evidence' means 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." MRE 401. "All relevant evidence is admissible," MRE 402, however it may still be excluded under :tvIRE 403 when "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Testimony regarding the theft and fire at the Flint Home Depot was relevant and admissible to establish the charge of conducting a criminal enterprise that required the showing of a pattern of racketeering, including that there be, "not less than 2 incidents of racketeering." MCL 750.159i(l); MCL 750.159f(c). It is "well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise." United States v Baez, 349 F3d 90, 93 (CA 2, 2003); see also United States v Mejia, 545 F3d 179, 206 (CA 2, 2008) ("Where, as here, the existence of a racketeering enterprise is at issue, evidence of uncharged crimes committed by members of that enterprise, including evidence of uncharged crimes committed by the defendants themselves, is admissible to prove an essential element of the RICO crimes charged-the existence of a criminal enterprise in which the defendants participated.") (Quotatioh mai-ks and citation omitted). Jenkins additionally argues that evidence of the Flint Home Deport incident was irrelevant because there was no evidence he was involved. To the contrary, Walker testified that Jenkins was present with her and Furline at the Flint Home Depot, that it was his idea to steal items from that store, and that he set the frre there. Jenkins debates the credibility of this evidence, but that was for the jury to decide and did not preclude its admission. He also contends that the testimony showed his propensity to associate with Furline, which he asserts, without explanation, prejudiced him. Proof of Jenkins's relationship with Furline was probative

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to establishing plaintiffs aiding and abetting theory, and was evidence that they associated with each other through a pattern ofracketeering activity under MCL 750. l 59i(l ).

The admission of testimony from Royal, the loss prevention manager at the Bmion Lowe's, regarding the Burton Lowe's event involved Furline and not Jenkins, but was still not an abuse of discretion because it was a continuation of the Flint Home Depot events. The item number for the DeWalt contractor saw stolen from the Flint Home Depot matched the item number of the pe Waltcontractor.saw returned to the Burton 1,owe'sStore. Walk:er's testunony established that the proceeds from that return were eventually split 50/50 between her and Jenkins. In order to prove racketeering, plaintiff had to show the defendants conspired, or .aided or abetted to commit an offense for financial gain. MCL 750.159(g). Thus the Burton Lowe's return was also relevant to establish the pattern of racketeering portion of the conducting a criminal enterprise charge.

Testimony from Luczak, loss prevention manager at the Flint Township Lowe's, that he was familiar with Jenkins was relevant and not unfairly prejudicial. When asked whether he was familiar with either defendant, Luczak testified "I was familiar with Alvin Jenkins ... from other incidents unrelated to this." His familiarity with Jenkins was relevant to the investigation of the events at the Flint Home Depot, his identity of Jenkins in photos provided to him by Royal, and identification of Jenkins in court. While testimony that Jenkins was known by loss prevention personnel may have been prejudicial, because plaintiff did not delve into the circumstances of the other unrelated incidents mentioned by Luczak, Jenkins was not unfairly prejudiced by the testimony.

Jenkins also contends his counsel was ineffective for failing to object to the bulk of the testimony that was presented regarding his participation in the Flint Home Depot frre and theft and Burton Lowe's events. To establish a claim of ineffective assistance of counsel, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been differenL" People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). "Under this test, counsel is presumed effective," People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007), and "the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy," People v Riley (,4.fter Remand), 468 Mich 135, 140; 659 NW2d (2003). "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). This Court "will not second-guess counsel regarding matters of trial strategy," or "assess counsel's competence with the benefit of hindsight." People v Rice (On Remand), 235 Mich App 429,445; 597 NW2d 843 (1999). Nor will we find counsel ineffective for failure to make merit less objections. People v Ericksen, 288 Mich App 192, 20 l; 793 NW2d 120 (2010).

Plaintiff presented 27 witnesses in its case-in-chief, many of whom provided extremely brief testimonies. Thus, in this case, a witness who may have said something damaging could quickly be replaced with another if counsels limited their questions. Such was the case with Luczak. During his brief testimony, Luczak was asked three times whether he was familiar with Jenkins. Plaintiff asked twice and codefendant's counsel asked again just to distinguish his client from Jenkins. As stated earlier, Luczak did not discuss how he was familiar with Jenkins.

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An objection from Jenkins's counsel could have very likely prompted that discussion. Jenkins's counsel chose not to ask the question during his quick cross-examination of Luczak. In this circun,stance, the decision not to object appeared to be trial strategy.

Jenkins's counsel was not required to object to lack of notice under MRE 404(b)(2) because plaintiff did.not offer or argue the evidence of the Flint Home Depot and Burton Lowe's events under this rule. Fmther, an objection by Jenkins's counsel as to the admission of testimony about those .events would have been overruled, as v11as the case with the objection during Royal's testimony, because of the relevancy of the testimony to establishing the charge of conducting a criminal enterprise. Counsel's objection would have been meritless in that instance.

D. JURY INSTRUCTION ERROR

"To preserve an instructional error for review, a defendant must object to the instruction before the jury deliberates." Jimkoski v Shupe, 282 Mich App 1, 9; 763 NW2d 1 (2008). Jenkins's claim of instructional error was not preserved because Jenkins's trial counsel did not object to the jury instructions. Consequently, Jenkins also argues counsel was ineffective for failing to object. Jenkins also did not preserve his ineffective assistance claim because he did not move for a new trial or an evidentiary hearing in the trial court. Heft, 299 Mich App at 80. Unpreserved claims of instructional error are reviewed for plain error affecting the defendant's substantial rights. Carines, 460 Mich at 763. i\n unpreserved ineffective assistance of counsel claim is reviewed for mistakes apparent on the record. Heft, 299 Mich App at 80.

Jenkins argues the jury should have been instructed under Michigan Criminal Jury Instructions (M Crim JI) 5.5, 5.6 and 5.13 based on the evidence at trial that Walker was an accomplice in the events that took place at the Flint Home Depot on October 28. Jenkins blames the failure not to instruct the jury on the court and his trial counsel. We find Jenkins's claim of instructional error waived because his trial counsel expressly approved the jury instructions as given. People v Ortiz, 249 Mich App 297, 311; 642 NW2d 417 (2002). Waiver is "the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) ( quotation marks and citation omitted). "[E]xpressions of satisfaction with the trial comt's instructions constitute a waiver of any instructional error." People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Further, "[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." MCL 768.29.

We disagree with Jenkins's claim that his trial counsel was ineffective for failing to request the same instructions above. To establish a claim of ineffective assistance of counsel, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." Trakhtenberg, 493 Mich at 51. "Under this test, counsel is presumed effective," Frazier, 478 Mich at 243, and "the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy," Riley (,4-fter Remand), 468 Mich at 140.

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There was no evidentiary basis for the jury to be instructed under M Crim JI 5.5, 5.6 or 5.13. M Crim JI 5.5 applies when a witness is a disputed accomplice. If the jury finds that the witness was actually an accomplice, then M Crim JI 5.5 is followed by M Crim JI 5.6, which ir1structs the jury to take into consideration ce1iain cautions when examir1ing accomplice testimony. M Crim JI 5.5 would have required the jury to decide the initial question of "whether [the witness] took part in the crime the defendant is charged with committing" in order to determine whether Wallcer was an accomplice. M Crim JI 5.5(1) (emphasis added). Jenkins was charged \Vith third~q.egret; arson, first:degn.,e retail fraud, 11nd conspiracy to colllffiit both crimes, for events that occurred on October 29. There was no evidence that Walker also took part in those events. Instead, Walker testified that she declined Jenkirls's irlvitation to go with him to the Saginaw Home Depot on October 29. Her testimony was corroborated by the absence of evidence showing her present at the Saginaw Home Depot and Burton Lowe's stores on October 29. Indeed, there was no surveillance video or witness testimony placing Walker with Jenkins on October 29. Walker could similarly not be considered an accomplice to Jenkins's additional charge of conducting a criminal enterprise because her involvement in only the October 28 incident did not satisfy the statutory requirement to establish a "pattern of racketeering activity," that there be, "not less than 2 incidents of racketeering." MCL 750.159i(l); MCL 750.159f(c). From this evidence, it is clear that it would have been futile for Jenkins's counsel to request M Crim JI 5.5, and M Crim TI 5.6, because this instruction is rendered null when M Crim TI 5.5 does not apply. Counsel is not ineffective for failing to make meritless objections. Ericksen, 288 Mich App at 201.

E. IDENTIFICATION TESTIMONY

"We review for an abuse of discretion the trial court's evidentiary rulirlgs that have been properly preserved." People v Fomby, 300 Mich App 46, 48; 831 NW2d 887(2013). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." Unger, 278 Mich App at 217.

" 'Relevant evidence' means 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." MRE 401. However, even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice .... " MRE 403. Evidence regarding a defendant's identity is relevant when the identity of a suspect is at issue. People v Baker, 114 Mich App 524, 529; 319 NW2d 597 (1982). However, "the issue of whether the defendant in the courtroom [i]s the person pictured in a survei1lance photo [i]s a determination properly left to the jury." People v Fomby, 300 Mich App 46, 52; 831 NW2d 887 (2013) (citation and quotation marks omitted). This Court has also recognized that when there is "reason to belieye that the witness is more likely to identify correctly the person than is the jury," the testimony is admissible. Id. (Citation omitted).

Jenkins argues that identification testimony from Detective Larry Biniecki was prejudicial and invaded the provirlce of the jury. Detective Biniecki testified from the position of a layperson because he was not offered by the plairltiff, nor qualified by the court, as an expert. MRE 701 governs the admission of lay opinion testimony and provides:

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If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limi-red to those opmions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Detective Biniecki identified Jenkins 11 times in still photos tak:en from the surveillance video at the Saginaw and Flint Home Depots, and the Bmton Lowe's. His testimony was rationally based. on his. own perception, but inadmissible under. MRE 701. bec,mse.it was not "helpful to a clear understanding" of the evidence or the determination of the identification of the individuals in the photos. MRE 701. There was no indication from the record that the still photos were distorted or that it was difficult to identify Jenkins in them. Further evidence of this came from Detective Biniecki's own testimony during cross-examination that, "the video speaks for itself," "I believe everybody can view [the video footage] and mak_e their own determination," and "I believe everybody can view it and make their own interpretations." "[W]here a jury is as capable as anyone else ofreaching a conclusion on certain facts, it is error to pennit a witness to give his own opmion or interpretation of the facts because it invades the province of the jury." People v Drossart, 99 Mich App 66, 80; 297 NW2d 863 (1980). In accord with Drossart, the province of the jury was invaded here and it was an abuse of discretion for the trial court to admit Detective Biniecki' s identification testimony. Any abuse of discretion notwithstanding, "a preserved, nonconstitutional error is not a ground for reversal unless after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome detenninative." People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999) (quotation omitted). Detective Biniecki's identification testimony, while improper, did not affect the outcome of the trial when Walker, Royal, Marciak, and Tyson also identified Jenkins at either the Flint and Saginaw Home Depots, or Burton Lowe's during the charged incidents.

IV. CONCLUSION

Defendant Furline's and defendant Jenkins's convictions and sentences are vacated and the matters are remanded for a new trial. We do not retain jurisdiction.

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STATE OF MICHIG.AJ"i IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW

PEOPLE OF TH.c OF MICHIGPJ'-1,

vs.

TERRMCE ANTHO}-J"Y FURLilIB Defendant,

I ---------------JO H:N A. McCOLGAN, JR. Prosecuting Attorney Courthouse Saginaw, lvfI 48602

WILLIAM D. WHITE (P-29234) Attorney for Defendant 804 S. Hamilton Saginaw, lvfI 48602 (989) 77-1790

I ---------------

Case no. 16-042043-FH-4

HON. JAMES T. BORCHARD

MOTION FOR SEPARATE TRIAL FROM CO-DEFE:Nl)ANT: AL VIN BERNARD JENKINS, SR

:_:·.)

·-')

I-' ;_ ,_,

NOW COJ:vfES the Defendant, TERRANCE ANTHONY FURLIN"E, by and through bis attorney, VIII.LIAM D. WHITE, and in support ofthis Motion states as follows:

1. Defendant, along with co-defendant, AL VIN BERNARD JENKINS, SR (Hereinafter referred to as JENKINS), is charged in a multi-count felony fuforrnation which alleges Criminal Enterprise, Conspiracy, Arson and Retail Fraud as a result of an incident occurring October 29, 2015, at the Home Depot in Kochville Township, Saginaw County, MI; and further, this case is scheduled for a Joint Trial on June 28, 2016. That the case number for PEOPLE VS. ALVIN BERNARD JENKINS is 16-042044-FH-4.

2. That after his arrest and incarceration, co-defendant JENKJNS was interviewed by Det. Larry Bieneci and bet Aaron Simons of the Saginaw County Sheriff Dept

3. That said interview of co-defendant JENKJNS was videotaped and the D-vD was furnished to the defense as part of the discovery in this case.

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4. That coadefendarrt JENKINS was read bis Miranda warnings and waived same in Vvliting and agreed to speak with the detectives about tbis incident

5 Tb.aI during said taped · agreeci to " .. tell truth beginning to end." Further, dUL--ing said· derijed that he set rhe fae,

and instead told the detectives:

a. FORLINE told bim that he (Furline) was gonna set a fue ( at the Home Depot in Saginaw);

b. FURLINE said "I gotta go down here and set a fire"; c. that when JENKINS protested that he didn't want to be involved, FURLINE said to

birn " ... don't worry about it, just push the cart out...;" and further, JENKINS stated that FURLINE said, " ... roll tbis up front because I'm fixin' to start a fue."

d. that after they exited the Home Depot and were in the car, FURLINE stated, " ... when you start a fire you get commotion in the place." Further, FURLINE then said that he started the fire.

6. That Defendmt FURLINE intends to defend tbis matter by relying on bis presumption of innocence md requiring the People to meet their burden of proof. Further, it is defendant FURLJ}.ffi' s theory of the case that co-defendmt JENKINS acted alone in setting the arson fire at Home Depot md attempting to commit retail fraud by pushing a cart loaded with merchandise out the store.

7. That from the police reports received by counsel through cliscovery in tbis matter, as well as the aforesaid DVD interview of co-defendant JENKINS by Detectives Simon and Bieniecki, it appears that JENKINS intends to blame defendant FURLINE for planning and setting the arson :fire at the Home Depot in Kochville Township.

8. That under MCR 6.121 ( c ), upon motion by a defendant, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to the substantial rights of the defendant.

9. That.the defenses of defendant FURLINE and co-defendant JEN'XINS are antagonistic and mutually exclusive and require severance under People v. Hana, 447 Mich 325 (1994).

10. That a primary concern is to avoid a situation where each defendant is placed in the position where he or she must seek to convict the other, and defend in turn against the other's antagonistic· defense, wbile also defending again.st the prosecution's case, resulting in neither

defendant getting a fair trial. People v. Hana, Id., at p. 349.

11. Further, the problem is foreseeable that were a joint trial held, and co-defendant

JENKJNS does not take the witness stand, but the Prosecutor introduces Co-Defendant JENKJN' S statement at trial wbich accuses Defendant FURLil'i'E of setting the arson fire

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to provide cover to commit Retail Fraud, Defendant FURlfrTE would be denied bis right to confront and cross examine the Vlitnesses against him as prohibited in the case of Bruton v . United States, 88 S. Ct 1620 (1968).

that rhis Co2-t schedule defendar.t FURLil\!.t 's Jury Trial separate from that of co-defend2nt AL VIl'-J BERN.A ... RD JENKil\fS, Sr.

I DECLARE THATJHE ABOVE STATEMENTS ,_ARE TRUE, TO THE B:ESJQFMY . KNOWLEDGE, illFORlvfATION AND BELIEF.

April 14, 20I6

STATE OFMJCHIGANl COUNTY OF SAGil\fA \V)ss.

AFFIDAVIT OF DEFENDANT TERRANCE ANTHONY FURLINE

NOW C01VIBS the Affiant, TERRANCE ANTHONY FURLil\fE, and after being duly sworn , deposes and states that he has read the foregoing Motion for Separate Trial from Co­Defendant AL Vll\f BERNARD JEN1UNS, and that the allegations made therein are true, to the best of my knowledge, information and belief

/~~ /__-uvl::~ TERRANCE ANTHONY FURLINE, Defendant

2016. Subscribed and sworn to before (J!b;blic, ou t ·

c..::, ~-=-c '. :·

WILLLI\.MD. '~ ·-

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STATE OF MICHIGAN 2 IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW

3

4 PEOPLE OF THE STATE OF MIGJIGPN

5 VS, File No. 16-42043-FH

6 16-42044-FH 7

8 A[WffiE~i~:rE~FJs'.~R, g

10 Defendants.

I 11 12

HEARING

13 14

BEFORE THE HONORABLE JAMES T. BORCHARD, CIRCUIT J ~OGE

15 Saginaw, Michigan - May 5, 2016

16 APPEARANCES:

17 For the People: NATHAN J, COLLISON (P76031)

18 ASSISTANT PROSECUTING ATTORNEY 111 S. Michigan Avenue

19 Sat naw

9 MI 48602-2019

(9 9) 7 0-5330

20 21 For Defendant: PHILIP R. STURTZ (P21115)

Alvin B. Sturtz and Sturtz PC 22 Jenkins 1 Sr. 608 S Michigan Ave

23 Saginaw, MI 48602-1526 (9 9) 799-4701

24 25

2 IND EX

3 4 WTIN ESSES: PEOPLE

5 None

6

7

8 WTINESSES: DEFENDANT

9 None

10 11 12

EXHIBITS: RCVD

13 None

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Appearances, continuing:

For Defendant: WILLIAM D. WHITE (P29234) Terrance Anthony 804 S Hamilton St Furline Saginaw, MI 48602-1516

(989) 797-1790

REPORTED BY:

c~~thia L. Miotto, CSR-3862 Otficial Court Reporter

2

Saginaw, Michigan

May 5, 2016 (Proceedings commence, 10:01 AM)

THE CLERK: People versus Terrance Furline and People versus Alvin Jenkins.

MR. WHITE: William White on behalf of

Terrance Furline.

MR STURTZ: Good morning, Your Honor. Thank you for taking this matter. I represent Mr. Alvin Jenkins, Philip Sturtz.

MR COLLISON: And Nathan Collision on behalf

of the People.

THE COURT You may proceed. MR WHITE: Judge, I filed the first motion

in this one which was a motion for a separate trial

from the co defendant, Mr. Jenkins. And in it what I

would point out is that we have been given a lot of

discovery materials, a lot of DVD's. I think 13 or

more DVD's. And among them are interviews with co

defendant Jenkins. And in the DVD's Jenkins says that my client, Furline, told him he was going to set a fire

at the Home Depot And then after the whole thing was

over says he started th.e fire. When you start a fire

you get commotion in the place. And various other

admissions by Mr. Furline are claimed by Jenkins. And

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I think this sets up antagonistic and mutually the other defendant based on the postured case. People

2 exclusive defenses which would require severance under 2 versus Hanna as cited in his brief indicates that the

3 People versus Hanna. So I believe thai the trouble is, 3 decision lies within your discretion, and it's mandated

4 with my client, is he is left defending against 4 only when the defendant provides to the Court said

5 Mr. Jenkins' comments. And also defending the case 5 affidavit which fully demonstrates that its substantial

6 brought by the prosecution. So it places him in a very 6 rights would be prejudiced and that severance is

7 unenviable position. And we would ask the court io 7 necessary for means for rectifying the potential

8 sever Furline's trial fi·om that of Jenkins. 8 prejudice.

9 Thank you. 9 Now, the problem here is that the People have

10 THE COURT: Your position on that, Mr.· 10 no intention of introducing any of the statements that

11 11 thedefendants made against each other . .Frankly, they .. · .. -- ... ·.:.-··· ··· .. -.·.-........ ·.-.- . - .

12 MR. STURTZ: I have no objection to separate 12 wouldn't come in by way of any other witness because

13 trials. 13 they wouldn't be a party opponent admission, obviously,

14 THE COURT People's response. 14 so it would be hearsay. The only way they come in is

15 MR. COLLISON: Thank you, Your Honor. 15 if the defendants choose to take the stand.

16 Initially I would like to point out that the 16 And barring that, even if they do take the

17 court rule regarding severance requires an affidavit by 17 stand and make those statements each opposing defendant

18 the defendant The Court will note that this affidavit 18 would be entitled to cross-examine under the 19 provided on Page 3 does not conform to the court rules, 19 confrontation clause of the Contusion of the United

20 specifically that there is no certification that if 20 States of America and the State of Michigan thereby

21 called to testify that the defendant would do so 21 alleviating potential prejudice because they would be

22 truthfully and in accordance with the contents of the 22 able to cross-examine the opposing defendant on the

23 affidavit. 23 nature of their statement.

24 Further, in order to grant severance the 24 THE COURT: Okay.

25 defendant must show that there is a undue prejudice to 25 Any response?

5 6

MR. WHITE: No. apparently is the new way that things are going to be

2 MR. STURTZ: Judge, part of my motion - I 2 handled now in Saginaw Circuit Court and in Saginaw

3 haven't filed a great number of motions. I haven't 3 Courts. Apparently there is a big problem in regard to

4 filed any motions because I don't have any discovery 4 costs for the production and deliverance of discovery

5 yet. 5 for indigent defendants.

6 MR. COLLISON: Objection, Your Honor. Can we 6 As you are well aware I am court appointed

7 handle these one at a time, these files one at a time? 7 for Mr. Jenkins in this case. And we have sought

8 THE COURT: Sure. Let's finish this one. 8 discovery. The discovery that was given to us are of a

9 I will give you a week, Mr. White, to correct 9 great number of CD's. We also got a flash drive that

10 any defects in your affidavit, if any. And I will take 10 was given to us. They also gave us the CD's which

11 the matter under advisement. 11 apparently contain some 248 photographs that my client

12 MR. WHITE: Thank you, Your Honor. 12 and I both agree should be given to us so my client can

13 THE COURT: And the Court will make a 13 look at them. The problem in Saginaw County at the

14 decision prior to the trial. v'V11en is the trial date? 14 present time is that these CD's, when they are given in

15 MR. WHITE: July something. 15 this form, there is no way that my client can view or

16 THE COURT: All right. 16 see these items at the Saginaw County Jail. He is

17 Next motion. 17 incarcerated at the present time. The sheriff will not

18 MR. STURTZ: Do you have any more, Mr. White? 18 provide any type of devices to allow these to be

19 MR. WHITE: No, I join in your motion. But 19 conducted within the county jail. There is no way that

20 go ahead. 20 many of these things were capable of being operated

21 MR. STURTZ: May ii please the Court, Philip 21 through my equipment that I have in my office. In the

22 Sturtz. 22 past the sheriff has not allowed me to bring any

23 Judge, I did file in this case, first off, a 23 computers or any CD operating equipment that would

24 motion for production of documents and discovery. We 24 produce these things.

25 were provided and given a number of CD's, which 25 So we had a couple motions, and the Court

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ordered that it all be produced. The Court then to be done before the transcripts are prepared. And

2 ordered that they are to produce these things. We 2 the problem is that we have no way of playing the CD's.

3 found out that the cost for the production _of these 3 So we need some paper transcripts of what is contained

4 items were going to be expensive as far as just 4 on these CD's so my client can look at it, comment upon

5 ordering the photographs. Upon the Court's -- my 5 it. and tell me what is going on.

6 understanding, upon the Court realizing what the cost 6 My client is very articulate. He writes me

7 was going to be involved the order as far as production 7 letters probably two to three times a week concerning

8 of photographs was changed tl1at the prosecutor was to 8 his production of items, insisting that I am being g select the photographs that were to be used at the time g ineffective assistance of counsel because J am not

10 of trial and that those photographs would be produced. iO doing his biddings and the motions he wants, et cetera.

11 Well, nothing has been produced to us bythi~point in_ 11 Well, I can't do the motions because J don't have the

12 time. No selection has been made of the photographs. 12 transcripts, and I d~n't h~ve the discovery to give to

13 And my client is very strongly asserting that he wants 13 him.

14 to look at all the photographs and all the videos that i4 And there are a lot of issues in regard to

15 are in this particular case. Not only are the videos 15 the photographs that he needs. And he wants to point

16 of the store located here in Saginaw but the out of 16 out to me, well, we don't have them. So the problem

17 county as well. 17 becomes an issue, that I see, and it's happening on

18 We need those things to prepare motions as 18 many occasions at the present time, that the police

19 far as in Circuit Court here. As late as Tuesday of 19 departments in this county-

20 this week I checked -- when I received all the CD's 20 THE COURT Let's stick to this case.

21 that were given to me I took those to the court 21 MR. STURTZ: Well, lam.

22 reporter in Judge Clark's courtroom, who is a certified 22 THE COURT: These generalizations about the

23 court reporter, and had her start working on those. As 23 whole county, I don't necessarily agree that that is

24 of this past Tuesday she is still working on them and 24 how things are in this county. But --

25 she indicates to me that there is still a lot of work 25 MR. STURTZ: In this particular case they

9 10

have gave me all the CD's to save costs, money. The them.

2 prosecutor doesn't want to pay to have these 2 THE COURT: You want pictures?

3 transcribed. Neither do the police departments. And 3 MR. STURTZ: I want pictures. I want all the

4 apparently the judicial system, because of being a 4 video.

5 court appointed case, the courts don't want to pay for 5 THE COURT: Where are we at with the

6 all the work that has to be done - 6 pictures?

7 MR. COLLISON: Your Honor, objection as to 7 MR. COLLISON: Judge, it's the People's

8 relevancy. I mean this is a motion to compel 8 position that we received digital photographs. We made g discovery. This isn't a forum to discuss the evolving 9 exact copies of what we received and provided them to

10 nature -- 10 the defense.

11 MR. STURTZ: I think it's very evolving. 11 THE COURT: Is that how you are going to

12 Because the next step is, if we don't get the relief, 12 present them to the jury?

13 the only thing I can say is we are going to take some 13 MR. COLLISON: I am not privy to

14 sort of emergency leave to the Court of Appeals. 14 Mr. Albosta's trial strategy. For all I know he will

15 THE COURT: That's fine. What are you asking 15 put them right up on that big TV because that is why it

16 for? 16 is in this courtroom.

17 MR. STURTZ: Judge, I am asking fer all the 17 THE COURT: The previous order was any

18 photographs. I'm asking - the transcripts are already 18 photographs to be used in the jury trial are to be

19 ordered. They are being prepared at this point in 19 provided in hard copy. We will provide a means for

20 time, but they are not ready. And that is why my 20 your clients to come over here and view all those

21 motions aren't before the Court. I am going to be 21 pictures. They can take as much time as they want

22 filing motions similar to what Mr. 1Mlite -- 22 I'm not going to produce every single picture when

23 THE COURT: The transcripts are being 23 it's -- they can just sit and watch them on video. And

24 prepared? 24 then, if they want certain pictures, they can indicate

25 MR. STURTZ: Yes, they are. I don't have 25 which ones they want. And if I find out anybody is

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messing with me just for the purpose of being difficult

that will be taken into consideration in the future.

But we will provide everything that is needed

by way of our things that we have here in court, our

TV's computers, whatever we need so that your clients

can view these pictures until their heart's delight.

MR. STURTZ: May I ask LI1e procedure by which

I can discuss with your court as to how that will be

done? THE COURT: I don't know. We will get it

done. Talk to the court administrator. Talk to the

jail administrator. And we will get it done. MR. STURTZ: Well, can we have an order !hen

that is somehow directed to the court administrator's

office that they will --

THE COURT: You can have an order that is directed to anybody that reads it. That is how we are

going to do it

MR. STURTZ: Well, I have already had one

prepared by Your Honor. And the pictures are wherever

they are --

THE COURT: Well, that order stands. And any pictures they intend to introduce at trial are to be

provided in hard copy.

MR. STURTZ: Now, this flash drive. How do

13

They require our office to provide electronic

discovery. And, frankly, there has been no case law,

court rule, or statute cited to suggest that our

office's duty extends beyond providing the materials requested in the same format that we received them. We

have no duty to aid in the analyzation, or the viewing,

or the preparation of defense counsel's trial, or

facilitating any of that. We satisfy our duty when we turn it over.

Now, if there were such a rule that we then

have to provide hard copies and create transcripts, the

court rules would account for that. And they don't.

In the indigent defense recommended standards when it

comes to that, and they don't As a matter of fact

it's all going to be E discovery as far as court

appointed cases are concerned. And that is a decision

that was made in Lansing in conjunction with the State

Court Administrator's Office.

Now, what they are asking for here is for the

prosecutor to help them try their case. Help them

prepare their defense. And help them better inform

their clients. And that is just not our

responsibility. Obviously, whatever order you issue,

will be complied with to the extent that no one decides

to take an appeal to get clarification into this issue.

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we -- why can't we get a transcript of that?

THE COURT: I don't know. You are going to

get to see it. I don't know what is on it. I don't

know how many pages. I don't know what is involved.

All I know is that you're saying you have a flash

drive. That doesn't tell me a thing.

MR. STURTZ Well, the flash drive is this

big and about like a cigarette lighter.

THE COURT: I understand that. But I don't

know what is on it.

MR. STURTZ: Well, I don'teither.

THE COURT: Then you have to review it and

find out.

MR. COLLISON: Your Honor, may I make a record, please?

THE COURT: Sure. MR. COLLJSON: Initially, let me just say

that the issue that Mr. Sturtz has is not based on procedure that is unique to Saginaw. The evolving

nature of electronic discovery and electronic records,

both initial creation and storage, is something that is

becoming more and more prevalent statewide. As a matter of fact, Mr. Sturtz just represented to the

Court that he is appointed. The State indigent defense

counsel's standard of pradice requires E discovery.

14

But this is the nature of the law. And if these gentleman don't have the very fundamental and basic

pieces of technology to analyze and review file formats

that are ubiquitous in our society, that is not the

problem of the prosecutor. It's not the People's burden.

THE COURT: My ruling stands. Any photos you intend to introduce at trial are to be provided in hard

copy. And I recommend both sides to appeal away.

MR. WHITE: Judge, if I may, just follow-up.

May I take an order, may I have the Court sign an order

on behalf of Mr. Furline that we will be given whatever

Mr. Sturtz is given?

THE COURT: Absolutely. MR. WHITE Thank you, Judge.

(Proceedings concluded, 10:17 AM)

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STA TE OF MICHIGAN )

2 ) ss 3 COUN1Y OF SAGINAW )

4

5

6

7 8 I certify that this transcript is a complete, true

9 and correct transcript of the proceedings and testimony 10 taken in this case before the Honorable James T. Borchard,

11 Circuit Judge, in Saginaw, Michigan.

12

13 14 15 16 17 18 19 20 21

22 23

24

25

Ct~thia L. Miotto, CSR-3862 Official Court Reporter 111 South Michigan Avenue Saginaw, MI 48602

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/ I

STATE OF lvfICHIGAN frJ THE CIRCUIT COURT FOR THE COlJlffY OF SAGfrJA W

PEOPLE OF THE STATE OF tv1ICHIGA_l\T,

Case no. 16-042043-FH-4

VS. HON. JAl\1ES T. BORCHARD

TERRANCE ANTHONY FURLINE Defendant,

I ---------------JO H:N A. McCOLGAN, JR. Prosecuting Attorney Courthouse Saginaw, MI 48602

I ---------------WILLIAM: D. WHITE (P-29234) Attorney for Defendant 804 S. Hamilton Saginaw, MI 48602 (989) 77-1790

I ---------------

AMENDED SUPPORTING AFFIDAVIT PER MCR 6.121(c) OF DEFENDANT TERRANCE FORLINE

IN SUPPORT OF MOTION FOR SEPARATE TRIAL FROM CO-DEF. JENKINS

STATE OF MICHIGAN) COlJNTY OF SAGINAW) ss.

L /, r

'''-,

NOW C0l'v1ES the Affiant, TERRANCE FURLINE, and after being duly sworn, deposes and states that:

. 1. I am charged, along with co-defendant, AL VIN BERNARD JENKIN"S, SR., with ·

Criminal Enterprise, Conspiracy, Arson and Retail Fraud as a result of an incident on October 29, 2015, at Home Depotin Kochville Tmvnship? Saginaw County, MI.

2. That co-defendant JENKINS has given taped statements in which he claimed that I started the :fire at Home Depot, and that I admitted this to him.

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3. That I deny setting the fire at Home Depot, and deny ever admitting this to anyone and JENKINS is lying about this.

4. 1hat should case to Trial two defendants, it is anticipated that a Brnton Vo United States. 88 s. Ct 1620 (1968) situation ·will arise where Defendant Furline may be denied his right to confront the vvitness against him, in the event the videotaped statement of JENKINS is played before thejury.

5. That .the defenses of.defendant FURLIN];: and .co-defendantJENKINB are antagonistic and mutually exclusive and require severance under People v. Hana, 447 lvfich 325 (1994). .

6. That unless the trials ofFURLINE and JENKINS are separated, my substantial rights will be prejudiced and that severance is necessary to rectify the possible prejudice.

I HEREBY CERTIFY that I have read the above statements that I have made, and that they are TRUE, to the best of my own personal knowledge, information and belief.

FURTHER Deponent sayeth not.

TERR.ANCE FlJRLINE, Affiant

On this 5th day of May, appeared before me, a Notary Public i.n and for said County of Saginaw, the person known to me as TERRANCE FURLINE, and after being duly sworn, stated

,. under oath that the above statements by him Subscribed were true, tot \best of his own personal

· knowledge, information and belief. w ) i 1 / .l.J-.,'-+---

Prepared by: WILLI.AM: D. WHITE (P-29234) Attorney for Def. FURLINE 804 S. Hamilton Saginaw, MI 48602 (989) 797-1790

Saginaw County, MI My Commission expires: 8/2/2017

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STATE OF lvJJCH.IGAN IN THE CIRCUIT COURT FOR SAGINAW COUNTY

PEOPLE OF THE STATE OF lvJJCHIGAN

Plaintiff

V

TERRANCEANTHONYFURLINE

Defendant

---------------'/

PEOPLE OF THE STATE OF lvJJCHIGAN

Plaintiff

V

AL VIN B. JENKINS, SR

Defendant I -------------

OPINION AND ORDER OF THE COURT

File No. 16-042 043 FH 4 Hon. James T. Borchard

File No. 16-042044 FH 4 Hon. James T. Borchard

1----C:-J

,'----'

0

AT A SESSION OF THE CIRCUIT COURT HELD AT THE COURTHOUSE IN THE CITY AND COUNT'( OF SAGINAW, STATE OF lvJJCHIGAN,

THIS ~nd DAY OF JUNE 2016

PRESENT: THE HONORABLE JAMES T. BORCHARD, CIRCUIT COURT JUDGE

Defendants Terrence Furline and AJ.vin Jenkins are charged in separate files with conducting a criminal enterprise, third degree arson, conspiracy to commit third degree arson, first degree retail fraud, and conspiracy to commit first degree retail fraud. It is the People's theory that

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defendants conspired to steal various items from the Home Depot in Kochville Townsbip, that the evidence will demonstrate the defendants loaded various items of merchandise into a cart, placing the cart near the exit near where their vehicle was parked, and that while Jenkins remained in control of the cart Furline went to another area of the store and lit a fire apparently for the purpose of causing sufficient commotion and confusion so as to allow th~m.to e2Ut the store without being noticedor .stopped. As it turned out their plans· were interrupted by an alert store employee and defendants were forced to abandon the cart and flee the premises. It is further claimed that defendants were part of a criminal enterprise involving a similar pattern of racketeering activity in both Genesee and Saginaw counties.

MCR 6.121(C) provides that on a defendant's motion the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant. Defendant Furline moves for a separate trial claiming that co­defendant Jenkins purportedly gave a statement to the police wherein he claimed that it was Furline that started the fire. In his supporting affidavit Furline denies setting the fire or making any incriminating statements to Jenkins or anyone else. Jenkins also joins in the motion for separate trials. Furline argues that his and Jenkin's respective defenses are antagonistic and mutually exclusive and further contends that should the case be allowed to proceed to trial and the prosecutor allowed to introduce Jenkin's statement at trial he will be denied his right of confrontation in violation of Bruton v US., 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

· In order to gain severance a defendant must show: (1) by affidavit or offer of proof that; (2) his or her substantial rights would be adversely affected by a joint trial; and that (3) severance is the only method of avoiding that prejudice. Inconsistency or antagonism between defenses is not enough. To mandate severance the defenses must be mutually exclusive or irreconcilable such that a jury would have to believe one defendant at the expense of the other. People v Hanna, 447 Mich 325 (1994). The Court having fully considered the matter does not find that a joint trial in this case would prejudicially pit one defendant against the other. At best defendants have merely demonstrated antagonistic claims as to who was responsible for setting the fire. As to any Bruton problems the prosecutor has indicated that it does intend to introduce any statements/confessions made by either defendant implicating the other. Accordingly, if any such statements are

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i ·t

introduced it will be through the defendants taking the witness stand and being subject to examination.

IS THEREFORE ORI)ERED that defendants' motion separate trials is denied.

3

J an1BS TI3orchard P27015

James T. Borchard, Circuit Judge

J--'-

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1 is not enough to prove that he assisted in committing 1 However, although you should try to reach a

2 it. 2 agreement, none of you should give up your honest

3 \/Vhen you go to the jury room you will be 3 opinion about the case just because other jurors

4 provided with written copies of the final jury 4 disagree with you or just for the sake of reaching a

5 instructions. You should first choose a foreperson. 5 verdict. In the end your vote must be your own and you

6 The foreperson should see to it that your discussions 6 must vote honestly and in good conscience.

7 are carried on in a business like way and that everyone 7 If you have any questions about the jury

8 has a fair chance to be heard. 8 instructions before you begin deliberations, or

9 During your deliberations please turn off 9 questions about the instructions that arise during

10 your cell phones or other communications equipment 10 deliberations you should submit them to me in a sealed

11 Until we recess. 11 envelope through the bailiff.

12 A verdict in a criminal case must be 12 Possible penalty should not influence your

13 unanimous. In order to return a verdict it is 13 decision. It is the duty of the judge to fix the

14 necessary that each of you agree on that verdict. In 14 penalty within the limits provided by law.

15 the jury room you will discuss the case among 15 If you want to communicate with me while

16 yourselves but, ultimately, each of you will have to 16 you're in the jury room please have your foreperson

17 make up your own mind. Any verdict must represent the 17 write a note and give it to the bailiff. It is not

18 individual and considered judgment of each juror. It 18 proper for you to talk directly with the judge, lawyers

19 is your duty as jurors to talk to each other and make 19 court officers, or other people involved in the case.

20 every reasonable effort to reach agreement. Express 20 As you discuss the case you must not let

21 your opinions and the reasons for them but keep an open 21 anyone, even me, know how your voting stands.

22 mind as you listen to your fellow jurors. Rethink your 22 Therefore, until you return with a unanimous verdict do

23 opinions and do not hesitate to change your mind if you 23 not reveal this to anyone outside the jury room.

24 decide you were wrong. Try your best to work out your 24 \/Vhen you go to the jury room to deliberate

25 differences. 25 you may take your notes and full instructions. If you

61 62

1 want to look at any or all the exhibits that have been 1 This is because sometimes something happens, and you

2 admitted just ask for them. \/Vhen you go to the jury 2 have to have 12 jurors for each verdict. The two

3 room you will be given written copies of the 3 people that get excused should still not discuss the

4 instructions you have just heard. As you discuss the 4 case. I actually had somebody have a heart attack in

5 case you should think about all my instructions 5 the jury room one day and we had to call a juror back

6 together as the law you are to follow. 6 who was excused. So if you discuss the case with

7 The defendants are each charged with five 7 anyone before that would happen then you can't come

8 counts. These are separate crimes and the prosecutor 8 back as a juror. So until you know that we have a

9 is charging that each defendant committed them all. 9 verdict do not discuss the case, even if you're one of

10 You must consider each crime separately in light of all 10 the two jurors that gets excused.

11 the evidence. 11 THE CLERK: The Court would thank and excuse

12 You must return a separate verdict for each 12 the juror in seat number four, Kimberly Mason.

13 defendant. For each defendant you may return a verdict 13 The Court would thank and excuse the juror in

14 of guilty of one or more of the alleged crimes, or not 14 seat ten, Daniel Roosa.

15 guilty. 15 THE COURT: Thank you.

16 Remember, you must consider each defendant 16 You may swear in the bailiff.

17 separately. And I have prepared verdict forms listing 17 THE CLERK: You do solemnly swear that you

18 the possible verdicts. 18 will to the utmost of your ability keep the persons

19 Any reason to take a recess about the 19 sworn as jurors in this trial in some private and

20 instructions, gentleman? 20 convenient place; that you will not suffer any

21 MR. ALBOSTA: No, Judge. 21 communication to be made to them, orally or otherwise;

22 MR. WHITE: No, Judge. 22 that you will not communicate with them yourself except

23 MR. COWDRY: No. 23 by order of the Court or to ask them if they have

24 THE COURT: All right. We are going to 24 agreed upon their verdict until they shall be

25 reduce the jury. Two of you are going to be excused. 25 discharged; that you will not before they render their

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1 interview to be played or not. 1 MR. ALBOSTA: Thank you. 2 THE COURT: Put your witness on. He can say 2 THE COURT: All rise for the ju1y.

3 what is in there. If they want to hear it they can do 3 (Jury present, 143 PM) 4 it on cross-examine. 4 THE COURT: You may be seated.

5 MR. ALBOST A: At their own peril? 5 You may proceed.

! 6 THE COURT Yes. 6 MR. ALBOSTA Thank you, Your Honor. The

7 MR. ALBOSTA Very good, Judge. 7 People call Detective Aaron Simons to the stand.

8 MR. WHITE: On behalf of Mr. Furline, we are 8 THE COURT: Raise your right hand, please. 9 not interested in the DVD and the interview of 9 Do you swear to tell the truth?

10 Ms. Walker. We will accept what she said from the 10 THE WITNESS: I do, Your Honor.

11 stand. 11 THE COURT: Have a seat.

12 THE COURT: Well, the deputy is going to 12 AARON SIMONS, 13 testify as to what she said. 13 Being first duly sworn at 1 :45 PM, testified under oath 14 MR. WHITE Yes. 14 as follows: 15 THE COURT: Anything else? 15 DIRECT EXAMINATION

16 MR. ALB OST A: No, Judge. We are probably not 16 BY MR. ALBOSTA: 17 going to play those calls, Your Honor, as far as 17 Q Please state your name for the record. 18 redacting them and stuff. I believe it's going to 18 A Aaron Simons. 19 take, it's going to take us too long to prepare that 19 Q And, Mr. Simons, how are you employed?

20 and it would probably have to spill proofs over to next 20 A I am a detective in the Saginaw County Sheriffs

21 week in order to accommodate the redaction of the 21 Office.

22 statements in there that Mr. Furline makes regarding 22 Q And were you a detective back on October 29th of 2015? 23 potential punishment. 23 A I was.

24 THE COURT: Okay. 24 Q And were you assigned, as part of your duties as a 25 Then bring in the jury. 25 detective, the fire at the Kochville Township Home

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1 Depot store? 1 recording?

2 A Yes, sir, I was. 2 A I have.

3 Q As part of that investigation did you meet with a lady 3 Q And at what point during this interview did you promise

4 by the name of Doris Furline-Walker? 4 Ms. Walker-Furline anything? 5 A I did. 5 A There were no promises made to Ms. Walker.

6 Q And where did this meeting take place? 6 Q And did that include any promises for her cooperation

7 A It took place in the parking lot of Hurley Hospital in 7 with th is case?

8 Flint. 8 A No.

9 Q And did you contact her or did she contact you? How 9 Q So there were no promises?

10 did this happen? 10 A None were made.

11 A Her son, Terrance Furline, asked me to contact her. 11 Q Okay.

12 Q Her son asked? 12 MR. ALBOSTA: No further questions. 13 A Yes. 13 THE COURT: You may cross-examine.

14 Q And did you make contact with her? 14 CROSS-EXAMINATION

15 A By telephone to set up a meeting, yes. 15 BY MR. WHITE

16 Q And you did set up a meeting? 16 Q So as I understand it, Detective Simons, my client, 17 A Yes. 17 Terrance, is the one that called you and asked to set

18 Q And when the meeting took place did you record that 18 up an interview with his mom?

19 meeting? 19 A Yes. If I may refer to my report here?

20 A I did. 20 Q Yes.

21 Q And how did you record it? 21 A On December 2nd I met with your client, Terrance

22 A By digital audio recorder. 22 Furline, for an interview. During the interview he

23 Q Okay. Is this a copy of that recording? 23 insisted that I speak to his mother, Doris.

24 A It is. 24 Q Okay. Was my client cooperative with you?

25 Q Have you had a chance to review a copy of that 25 A Yes.

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