COA 369555 PEOPLE OF MI V MARVELL CHRISTOPHER ELLIOTT Opinion - Per Curiam - Unpublished 11/14/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
-1-
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
November 14, 2025
10:35 AM
v No. 369555
Wayne Circuit Court
MARVELL CHRISTOPHER ELLIOTT, LC No. 22-007585-01-FC
Defendant-Appellant.
Before: RIORDAN, P.J., and WALLACE and TREBILCOCK, JJ.
PER CURIAM.
Defendant Marvell Christopher Elliott appeals as of right his convictions and sentences for
second-degree murder, MCL 750.317; discharge of a firearm from a vehicle causing death, MCL
750.234a(1)(d); assault with intent to do great bodily harm less than murder (AWIGBH), MCL
750.84(1)(a); and three counts of possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b. Defendant was sentenced to serve concurrent terms of 25 to 50
years in prison for second-degree murder, 12 to 24 years in prison for discharge of a firearm from
a vehicle causing death, and 18 months to 10 years in prison for AWIGBH, to be served
consecutive to the three concurrent terms of two years in prison for felony-firearm. We affirm.
I. FACTS
The general facts of this case are undisputed. At about 12:30 p.m. on October 27, 2022,
Detroit Police Department Sergeant Lyons received information from one or more “shot spotter”
microphones in Detroit that gunfire had occurred near “the area of Redmond and East State Fair.”
Sergeant Lyons promptly went to the scene and observed about six pistol casings “on Redmond
just there at State Fair.”1 However, he did not observe any other items or persons of interest at the
scene. Officer Borowski was directed to go to that scene to investigate, but while en route, he was
redirected to “the area of Manning and Boulder” for “a body being placed out on the street.”
Officer Borowski went to that area and observed a body in the street with an apparent gunshot
1 The casings were 9mm.

-- 1 of 17 --

-2-
wound to the left upper back. His partner applied a “chest seal” to the wound, but after a few
minutes, the officers could not detect a pulse.
John Ambry III was the primary prosecution witness, and he testified as follows. On
October 27, 2022, Ambry III was a passenger in a white GMC SUV driven by his older brother,
John Ambry II. The two brothers were casually driving around the neighborhood in the middle of
the day “listening to music.” At one point, the brothers briefly observed an orange Dodge Journey
and, about five to 10 minutes later, they again observed the same vehicle traveling in the same
direction. Under questioning at trial, Ambry III testified:
Q. And at the time you noticed it the second time is it behind you going in
the same direction as you or coming in a different direction?
A. Behind me going in the same direction.
Q. And what happens next?
A. Then we was coming up on State Fair. We stopped. He went around
us, went past us, blew through State Fair. Blew -- he drove through two stop signs
and then turned around.
Q. And when you say, he, who exactly do you mean?
A. [Defendant.]
* * *
Q. And what happened at that point?
A. Ah, he started shooting, raised his window down and started shooting
while we was turning.
Q. And when you say, he started shooting, at what point -- at this point
where is his vehicle in relation to yours?
A. Like across State Fair. We were turning onto State Fair. So he’s like
on the driver’s side.
Q. And so was the orange Dodge going at the same direction or coming at
you at the time of the shooting?
A. We was turning so he stopped, but we turned and then he just started
shooting out the window.
Ambry III explained that his brother immediately “sped off,” drove down about three
blocks, turned onto Boulder, then “started driving a little slower.” Ambry III continued:

-- 2 of 17 --

-3-
My brother started driving a little slower, started slowing down and then,
ah, he stopped -- stopped the car all the way. Then he looked up at the ceiling. I
don’t know, but then the car started rolling a little bit like real -- going real slow so
then I just jumped -- I opened his door. I tried to push him -- I opened his door a
little bit, tried to push him out a little bit, he so heavy, so my first instinct I
somewhat dived over him or climbed over him out the car and then hurried up and
pulled him out the car.
Ambry III said that by this point, he had lost sight of the Dodge Journey, so he drove about
three or four blocks to retrieve his mother and return to the scene. When Ambry III and his mother
arrived, “[w]e seen the police out there. He was laying on the ground.” Ambry III estimated that
he was at his home for about one or two minutes retrieving his mother.
Ambry III testified that during this sequence of events, neither he nor his brother rolled
down their windows or had “any exchange of words” with defendant. He talked to the police about
an hour after the shooting and identified a photograph of defendant as the shooter.
On cross-examination, Ambry III acknowledged that defendant, who lived on the same
street, had “confrontations” with Ambry II about an ATV in August 2022. Apparently, defendant
believed that Ambry II stole his ATV, and he wanted Ambry II to return it.
Dr. Nyugen, an assistant medical examiner for Wayne County, testified that Ambry II died
from a single gunshot wound to the left upper back. This was consistent with the testimony of
Corporal Fitzhugh, who testified that he inspected the GMC SUV after the shooting and identified
a single bullet hole in “the window of the left rear door.” He traced the bullet trajectory from that
window to the “front of the driver’s seat.”
A forensic technician who participated in the execution of the search warrant at defendant’s
house testified that her partner photographed 9mm ammunition in the kitchen. She also
acknowledged that there were “projectile marks” in the wall of the house facing the street.
Detective Mays testified that he interviewed defendant at police headquarters on October
27, 2022, after defendant waived his Miranda rights.2 Detective Mays said that defendant was
“[n]ot completely” forthcoming during the interview. The prosecution then played several minutes
of the interview for the jury.
On the second day of trial, outside the presence of the jury, the parties argued over whether
video recordings of two telephone calls made by defendant from jail after his arrest should be
admissible. According to the prosecution, it provided those videos to defense counsel in discovery:
“I have found an e-mail myself from August 1st telling him, hey, I just sent my evidence.com
download link, DDC and Wayne County Jail calls, which would have included this one.” Defense
counsel disagreed, stating that “I asked the prosecutor to show me in the evidence.com link that
2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

-- 3 of 17 --

-4-
he sent me where these two videos are and he couldn’t do it cause I didn’t get them and he’s trying
to blind side me at the last second with videos that I never got.” The prosecution responded that
[u]nfortunately evidence.com at the time doesn’t give me the ability to perform an
audit log of a particular piece of evidence, only the overall packet, but in my August
1st email to [defense counsel] separately from that evidence.com I said, at this point
I have sent the discovery in multiple dumps, Wayne County Jail and DDC
communications by download link as well last week and this week. Please let me
know if you have any difficulty with the download link or files.
Not hearing any response to this sort of discovery that I enumerated I had
sent I was under the impression it had been sent and received. . . .
The trial court ruled that it would not suppress the videos, reasoning as follows:
All right. Based on the record that a bundle of evidence was sent by a link
to [defense counsel] which included -- the People suggest included the videos and
the report, referencing the videos, reports, that have been referenced by [defense
counsel] in this trial corresponded to what was included in the more broader
evidence.com link that the People suggest these other items were included in.
In addition the prosecutor sent by e-mail a breakdown of what was included
including reference to these videos and the report related to the videos combined
with the fact that these videos have been reviewed by counsel.
Now, at this point they’re a matter of minutes long. They have been
referenced in the exhibit list that’s been at least presented to the Court as of
yesterday so almost two full days.
The Court finds that it’s certainly not going to suppress or not allow the
prosecutor to use this as evidence. I don’t find there’s been a prejudice as to
[defense counsel or defendant], that is, and that [defense counsel] has had an
opportunity to now review these videos and may cross-examine the witness with
respect to those videos if he wishes. . . .
Wayne County Sheriff Deputy Solberg then testified about the videos. He explained that
Wayne County Jail routinely records telephone calls made by inmates such as defendant and
notifies the inmates that they are doing so. On November 6, 2022, defendant made two relevant
telephone calls, both of which were played for the jury.3
3 The videos were not provided to this Court as part of the electronic record. However, it is
undisputed that, essentially, as defendant explains in his brief on appeal, “[i]n the calls, Appellant
told the call recipients to get rid of a ‘blick.’ ” A “blick” was defined earlier in trial as street slang
for a firearm. During closing argument, the prosecution argued as follows:

-- 4 of 17 --

-5-
Defendant’s theory of the case was that he and Ambry II had an ongoing personal dispute
during the few months preceding the shooting, and that he acted in self-defense on the day in
question. In this regard, on cross examination, he elicited testimony from Officer Lloyd that, in
the course of investigating the shooting, Officer Lloyd researched defendant’s house through a
“report management system search.” That search showed that on August 9, 2022, defendant’s
house was identified as the subject of a shooting, with defendant himself identified as the victim.
In other words, while not directly stated, Officer Lloyd indicated that on this date, someone shot
at defendant’s house. Officer Lloyd added that a police report dated August 25, 2022, apparently
regarding the shooting on August 9, indicated that defendant identified “John” as the shooter.
Defendant testified on his own behalf. According to him, in late July or early August 2022,
an ATV and a trailer in his backyard were stolen by Ambry II. Defendant made a police report
and personally told Ambry II that he wanted his property returned. However, Ambry II “was mad
because I was trying to get my property back and I went to the police about it,” and about a month
after the theft, Ambry II “started shooting at me.” In particular, Ambry II shot at defendant’s
house, and the police investigated on a “shot spotter run.” Shortly thereafter, Ambry II shot at
defendant again, this time when defendant was “in front of the house.” Defendant reported that
incident to the police as well.
Defendant testified that at about noon on October 27, 2022, he was driving to meet a friend
when Ambry II started following him. On direct examination, defendant explained:
The officers are like, hey, man, we want to find the gun, we don’t want some
little kid to get it on the street. You know what, I threw it in a sewer. I threw it
down the sewer there. Well, those two jail calls, which were made on November
6th, the incident happened on October 27th, those two video calls made on
November 6th, the first one with Rayvon Whitaker and he’s telling him to go get
something, something, and now he’s speaking sort of, you know, in code.
He’s being clever, but let’s think about what exactly he asked him. It’s
something that’s tucked up inside a piece of plastic in a car, okay. So maybe it’s
something small, all right, and then he’s telling him to sell that bitch, okay. So
maybe it’s something worth money. This isn’t something he just wants thrown out.
Then he’s telling him, you know, sell that bitch in another State, right. Okay. So
it’s something that is small. It’s worth money, but he doesn’t want it anywhere near
here. He doesn't want it in the city of Detroit. He doesn’t want it in the State of
Michigan and in that second call with Miss Carswell, the conversation comes up
about it being something to take apart, okay.
So it’s something small, worth money, doesn’t want it anywhere around
here at that time and it can come apart and then when Miss Niyall (sic) Carswell
goes, oh, so you’re selling your Blick, what does he do? He goes, shh, right, puts
his finger up to his mouth and has a sort of universal sign, stop talking.

-- 5 of 17 --

-6-
Q. How close was his car behind you?
A. At first when I turned off of Eastburn that’s when he did a U-turn and I
was -- at that time I was driving the normal speed. He got close to me. I just kept
driving straight and then when we got to Maddelein Street, his -- his street, that’s
when I seen him speed up, get in front of me and stop at his house.
Q. All right. . . . Now, did you actually see him go in his house or to the
front of his house?
A. He went to the front of his house and his ma was there at the front door.
Q. And what did you see between his mother and John Ambry?
A. I seen ‘em exchange a weapon.
Q. What type of weapon?
A. A handgun.
Defendant said that “by the time I got to the corner he was back in the truck chasing me.”
Ambry II continued to chase defendant for several blocks, until defendant managed to temporarily
escape:
A. So basically when I was getting chased, ah, I got away from him. I blew
through a couple of stop signs. I got away from him and then he ended up running
back into me and I was on my way to my friend house on State Fair.
* * *
Q. All right. . . . Now, how soon after he got this gun did he put his car in
front of your car?
A. Um, about -- he didn’t put his car in front of my car until -- until he
chased me and then I got away from him and then we came to the -- we met up at
the same intersection. That was the next time we met up at the intersection of
Redmond and State Fair.
Q. Okay. . . . And when you all met up at Redmond and State Fair what
happened after that?
A. There was a shooting at the corner of Redmond and State Fair.
Q. All right. . . . And what was going through your mind when the shooting
happened?
A. So I was scared, ah, I thought I was going to get shot at. Then I just
seen him go get his gun, the same dude that had been shootin’ at me, stalking me

-- 6 of 17 --

-7-
and basically he got to the corner. They was coming up State Fair and they blocked
me off at the intersection.
On cross-examination, defendant acknowledged “giving the police officers a couple
different versions of the events of October 27th,” but he explained that he did so because “I didn’t
want to believe that John was dead at the time . . . .” Defendant also acknowledged that he falsely
told the police that he dropped the firearm down a nearby storm drain after the shooting, but he
explained that he did so because he wanted to reassure the police that no children would be able
to obtain his firearm on the street. Defendant said that in reality, “after I was shooting the gun the
gun fell out of the car and I pulled off. I didn’t stop to get the gun.” Finally, defendant
acknowledged that on the day in question, he never saw the GMC SUV with a lowered window or
any occupant of the vehicle extend a firearm toward him.
The parties presented closing arguments the following morning. That afternoon, the jury
found defendant guilty as charged, and he was sentenced as noted above.
Defendant appealed and, in addition to the four-issue brief filed by his appellate counsel,
he filed a Standard 4 brief as well. The Standard 4 brief, as amended, was accompanied by a
motion to remand to the trial court for a Ginther hearing.4 We denied the motion “without
prejudice to a case call panel of this Court determining that remand is necessary . . . .” People v
Elliott, unpublished order of the Court of Appeals, entered April 22, 2025 (Docket No. 369555).
II. COUNSELED BRIEF ON APPEAL
A. DISCOVERY VIOLATION
Defendant first argues that the trial court erred by allowing the prosecution to present
recordings of his two telephone calls from jail concerning a “blick.” According to defendant, these
recordings were not timely provided to his counsel before trial, so the trial court should have
precluded the prosecution from presenting these recordings to the jury. We disagree.
“We review a trial court’s decision regarding the appropriate remedy for a discovery
violation for an abuse of discretion.” People v Dickinson, 321 Mich App 1, 17; 909 NW2d 24
(2017). “An abuse of discretion occurs when the trial court chooses an outcome that is outside the
range of principled outcomes.” Id. at 18.
“MCR 6.201 governs and defines the scope of criminal discovery in Michigan.” People v
Greenfield, 271 Mich App 442, 447; 722 NW2d 254 (2006). MCR 6.201 provides, in relevant
part:
(B) Discovery of Information Known to the Prosecuting Attorney.
Upon request, the prosecuting attorney must provide each defendant:
4 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

-- 7 of 17 --

-8-
* * *
(3) any written or recorded statements, including electronically recorded
statements, by a defendant, codefendant, or accomplice pertaining to the case, even
if that person is not a prospective witness at trial . . . .
* * *
(J) Violation. If a party fails to comply with this rule, the court, in its
discretion, may order the party to provide the discovery or permit the inspection of
materials not previously disclosed, grant a continuance, prohibit the party from
introducing in evidence the material not disclosed, or enter such other order as it
deems just under the circumstances. Parties are encouraged to bring questions of
noncompliance before the court at the earliest opportunity. Willful violation by
counsel of an applicable discovery rule or an order issued pursuant thereto may
subject counsel to appropriate sanctions by the court. An order of the court under
this section is reviewable only for abuse of discretion.
“There is no general constitutional right to discovery in a criminal case.” People v Elston,
462 Mich 751, 765; 614 NW2d 595 (2000). Consequently, a prosecutorial violation of MCR 6.201
is subject to a harmless-error analysis. Id. at 765-766. That is, “[t]o obtain relief for a discovery
violation, the defendant must establish that the violation prejudiced him or her.” Dickinson, 321
Mich App at 17-18.5
Here, as the trial court discussed in its ruling, the prosecution sent defense counsel an e-
mail before trial indicating that it had submitted “DDC and Wayne County Jail calls” that it
expected to introduce at trial. At a minimum, even if those calls were inadvertently omitted or
deleted from the “evidence.com download link” sent by the prosecution to defense counsel,
defense counsel nonetheless had pretrial notice that the prosecution would be introducing
telephone calls made by defendant when he was an inmate. Ideally, under such circumstances,
defense counsel should have pursued the matter to obtain the telephone calls from the prosecution
before trial. Moreover, defendant himself certainly had knowledge of the telephone calls before
trial, as he was responsible for those calls. Compare People v Taylor, 159 Mich App 468, 487-
488; 406 NW2d 859 (1987) (“In this case we find that defendant was entitled to no remedy for the
prosecutor’s nondisclosure of the letter in question since the defendant, having written it himself,
had knowledge of it independent of discovery.”).
Simply put, even assuming that the prosecution did not actually submit the telephone calls
at issue in the “evidence.com download link,” the trial court had the authority under MCR 6.201(J)
to rule “as it deems just under the circumstances.” Ruling that the telephone calls were barred
from evidence would essentially reward defendant for the inadvertent error by the prosecution and
5 A prosecutor’s suppression of exculpatory evidence raises constitutional issues. See, e.g., Brady
v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). However, the evidence at issue
was inculpatory, not exculpatory, so the Brady line of cases does not apply. See People v Chenault,
495 Mich 142, 155; 845 NW2d 731 (2014).

-- 8 of 17 --

-9-
defense counsel’s failure to bring the matter to the prosecution’s attention before trial. Further,
defense counsel was able to review the telephone calls before the prosecution introduced them,
and defendant has not articulated on appeal how his defense would have been different if the calls
had been given to him before trial. Under these circumstances, the trial court did not err or abuse
its discretion by ruling that the telephone calls were admissible.
B. AWIGBH
Defendant next argues that the prosecution submitted insufficient evidence to prove that
he was guilty of AWIGBH, and the accompanying count of felony-firearm, because “there was
reasonable doubt whether Appellant had the required intent to cause Ambrey, III [sic] great bodily
harm.” We disagree.
“A claim that the evidence was insufficient to convict a defendant invokes that defendant’s
constitutional right to due process of law.” People v Lane, 308 Mich App 38, 57; 862 NW2d 446
(2014). “This Court reviews de novo a defendant’s challenge to the sufficiency of the evidence
supporting his or her conviction.” Id. “We review the evidence in a light most favorable to the
prosecution to determine whether a rational trier of fact could find that the prosecution had proved
the crime’s elements beyond a reasonable doubt.” Id. “The standard of review is deferential: 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 elements of assault with intent to do great bodily harm less than murder are: (1) an
attempt or threat with force or violence to do corporal harm to another (an assault), and (2) an
intent to do great bodily harm less than murder.” People v Blevins, 314 Mich App 339, 357; 886
NW2d 456 (2016) (quotation marks and citation omitted). “This Court has defined the intent to
do great bodily harm as an intent to do serious injury of an aggravated nature.” Id. (quotation
marks and citation omitted). “Assault with intent to commit great bodily harm is a specific intent
crime.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316 (1997).6
It is undisputed that defendant and the Ambry brothers were at the same intersection when
the shooting occurred. In fact, according to defendant, the victim’s GMC SUV was so close to his
Dodge Journey that it had “blocked [him] off at the intersection.” From this testimony, a
reasonable jury could infer that defendant was close enough to the GMC SUV to be able to view
both of the Ambry brothers inside. Moreover, it is undisputed that defendant fired six or seven
rounds at the GMC SUV, one of which fatally struck the driver, Ambry II, through the left rear
window of the GMC SUV. A reasonable jury also could infer that because defendant fired
numerous rounds at the GMC SUV, he attempted and intended to fatally harm not only the driver
of that vehicle, but the passenger as well. In other words, while defendant himself testified that he
6 Although the statute governing AWIGBH, MCL 750.84(1)(a), refers to “intent to do great bodily
harm, less than the crime of murder,” the particular absence of an intent to murder is not an element
of the offense that must be proven beyond a reasonable doubt. See MI Crim JI 17.7. That is, the
only intent necessary is the intent to do great bodily harm. See People v Brown, 267 Mich App
141, 148-150; 703 NW2d 230 (2005).

-- 9 of 17 --

-10-
never observed Ambry III in the GMC SUV, there was sufficient evidence from which a jury could
find that defendant was aware that Ambry III was in that vehicle, and that he attempted and
intended to fatally harm Ambry III as well as Ambry II. This was sufficient to satisfy both
elements of AWIGBH. See Blevins, 314 Mich App at 357.
Further, we note that even if defendant did not specifically attempt or intend to fatally harm
Ambry III, we would still be compelled to affirm his conviction of AWIGBH. Under the doctrine
of transferred intent:
Before defendant can be convicted it must first be shown that he had the intention
to cause great bodily harm to someone. Merely because he shot the wrong person
makes his crime no less heinous. It is only necessary that the state of mind exist,
not that it be directed at a particular person. [People v Lawton, 196 Mich App 341,
350-351; 492 NW2d 810 (1992) (quotation marks and citation omitted).]
Here, by firing six or seven rounds at the GMC SUV, a reasonable jury could have inferred
that, at a minimum, defendant attempted and intended to cause great bodily harm to Ambry II.
This state of mind transfers to Ambry III for the purposes of AWIGBH. See People v Davis,
unpublished per curiam opinion of the Court of Appeals, issued June 29, 2023 (Docket No.
360300), at 9 (“[W]hen a defendant attempts to murder one person and, as a result, others are
placed in reasonable apprehension of being inflicted by the same type of harm, the defendant’s
intent to kill transfers to all those whom are placed in such apprehension.”).7 For this additional
reason, we affirm defendant’s conviction of AWIGBH.
C. SELF-DEFENSE
Relatedly, defendant argues that the prosecution failed to introduce sufficient evidence to
disprove his theory of self-defense. We disagree. As with the previous issue, our review is de
novo. See Lane, 308 Mich App at 57.
“With the enactment of the Self–Defense Act (SDA), MCL 780.971 et seq., the Legislature
codified the circumstances in which a person may use deadly force in self-defense or in defense of
another person without having the duty to retreat.” People v Dupree, 486 Mich 693, 708; 788
NW2d 399 (2010). MCL 780.972(1)(a) of the SDA provides:
An individual who has not or is not engaged in the commission of a crime
at the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat if . . .
[t]he individual honestly and reasonably believes that the use of deadly force is
7 “Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule
of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive
value.” Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017). Moreover, we note that
while Davis concerned assault with intent to murder, its rationale in this regard applies with equal
force to AWIGBH.

-- 10 of 17 --

-11-
necessary to prevent the imminent death of or imminent great bodily harm to
himself or herself or to another individual.
“Once a defendant satisfies the initial burden of producing some evidence from which a
jury could conclude that the elements necessary to establish a prima facie defense of self-defense
exist, the prosecution bears the burden of disproving the affirmative defense of self-defense
beyond a reasonable doubt.” Dupree, 486 Mich at 712. “In general, a defendant does not act in
justifiable self-defense when he or she uses excessive force or when the defendant is the initial
aggressor.” People v Guajardo, 300 Mich App 26, 35; 832 NW2d 409 (2013).
In this case, the prosecution submitted sufficient evidence from which a jury could find
that self-defense was disproven beyond a reasonable doubt. Ambry III testified that defendant
started following them and, eventually, positioned himself at an intersection so he could fire
several rounds at them from his driver’s side window. He also testified, as defendant himself
acknowledged on cross-examination, that neither of the Ambry brothers directly provoked
defendant during the drive. Moreover, the fatal bullet that struck Ambry II entered through the
left rear window, which was generally consistent with Ambry III’s testimony that the Ambry
brothers were trying to flee defendant, and suggests that when defendant was firing at the Ambry
brothers, he was doing so from a position that was safe from harm. These facts, taken together,
indicate that defendant did not have an honest or reasonable belief that the use of deadly force was
necessary under the circumstances. See MCL 780.972(1)(a).
Defendant does not dispute the incriminating testimony from Ambry III or the
incriminating trajectory of the fatal bullet. Instead, he highlights his own testimony that Ambry II
had fired upon his house on at least two occasions in August 2022, that he observed Ambry II
retrieve a handgun from his mother during the vehicle chase in dispute, and that he was in fear for
his life at the time of the shooting. However, the jury was not required to accept this testimony,
see Nowack, 462 Mich at 400, and defendant gave the jury ample reason to not do so. For instance,
he admittedly told multiple stories to the police during the interview at police headquarters and
told two people while an inmate at Wayne County Jail to dispose of a small object, which a jury
may presume was likely the firearm used in the shooting. In addition, his testimony to the effect
that Ambry II abruptly drove past him during the chase and stopped to retrieve a firearm while
defendant was slowly driving down the street was undermined by the prosecution on cross-
examination. The prosecution implied through its questioning of defendant, it is doubtful that, if
defendant was correct that Ambry II was chasing him (and not vice versa), he would slowly drive
down the street instead of quickly driving away to ensure his safety. Finally, while we
acknowledge that defendant introduced some evidence beyond his own trial testimony indicating
that Ambry II had fired upon his house on at least one occasion in August 2022, that fact would
not, by itself, translate to an “imminent” threat in late October 2022, which is the standard required
by MCL 780.972(1)(a).
For these reasons, the prosecution submitted sufficient evidence to disprove the claim of
self-defense beyond a reasonable doubt.
D. PROSECUTORIAL ERROR

-- 11 of 17 --

-12-
Defendant argues that the prosecution erred during its closing argument by stating that
defendant was “not willing to come all the way clean” during his interview with the police, and by
stating that “I don’t believe it’s self-defense.” We disagree.
“In cases alleging prosecutorial [error], issues are preserved by contemporaneous
objections and requests for curative instructions.” People v Evans, 335 Mich App 76, 88; 966
NW2d 402 (2020) (cleaned up). Here, defendant acknowledges that defense counsel did not
object, so our review is for plain error. See id. “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.” People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999). “Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
Id. at 763-764 (cleaned up).
“The question whether defense counsel performed ineffectively is a mixed question of law
and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de novo
questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
Clear error occurs when “the reviewing court is left with a definite and firm conviction that the
trial court made a mistake.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014)
(quotation marks and citation omitted). “Nonetheless, because no Ginther hearing was held, our
review is limited to mistakes apparent on the record.” People v Payne, 285 Mich App 181, 188;
774 NW2d 714 (2009).
“Given that a prosecutor’s role and responsibility is to seek justice and not merely convict,
the test for prosecutorial [error] is whether a defendant was denied a fair and impartial trial.”
People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of prosecutorial [error]
are decided case by case, and this Court must examine the entire record and evaluate a prosecutor’s
remarks in context.” Id. at 64. Prosecutors “are free to argue the evidence and all reasonable
inferences from the evidence as it relates to their theory of the case,” but they should not “express
their personal opinion of a defendant’s guilt, and must refrain from denigrating a defendant with
intemperate and prejudicial remarks.” People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659
(1995) (cleaned up). “A prosecutor may argue from the facts that a witness is credible or that a
witness is not worthy of belief. . . . [P]rosecutorial arguments regarding credibility are not
improper when based on the evidence, even if couched in terms of belief or disbelief.” People v
Unger, 278 Mich App 210, 240; 749 NW2d 272 (2008).
Here, defendant challenges the following two italicized excerpts from the prosecution’s
closing argument. First, when discussing defendant’s interview with the police and his telephone
calls from jail, the prosecution stated:
I’d suggest to you, ladies and gentlemen -- and you also heard from Officer
Lloyd -- the Blick is slang for a firearm. I’d suggest to you, ladies and gentlemen,
that even after telling those officers, after talking to ‘em for four hours and eleven
minutes he’s still misleading them. He’s not willing to come all the way clean.

-- 12 of 17 --

-13-
He’s telling ‘em just enough so it aligns with what the other witnesses are
telling him, what the evidence that they find in his house, what the photographs are,
he’s trying to tell ‘em just enough so it makes sense, but even after all that he’s still
not telling you the full story. [Emphasis added.]
Second, when discussing defendant’s claim of self-defense, the prosecution stated:
Ultimately despite all the testimony about this beef that may have been going on
between these guys remember when I asked a couple of the witnesses, you know,
how far is August from October, right? When you’re judging whether something’s
self-defense it has to be an honest and a reasonable belief and if you’re holding onto
something from August at the end of October I’d suggest to you that that’s not
reasonable, that your explanation that -- the three, four different versions that he
told officers in the interrogation, that’s not honest and reasonable.
He was misleading them every step of the way until they confronted him.
Here’s the photograph of this. Here’s the casing from the scene. Here’s the same
brand and caliber in your kitchen, right. It was only when he was checked on each
of his misstatements, his attempts to mislead.
For that reason I don’t believe it’s self-defense. Ladies and gentlemen, I’d
ask you to hold the Defendant accountable for his conduct on October 27th, 2022
and find him guilty of all counts. . . . [Emphasis added.]
Neither of the challenged statements were improper. The first statement, “[h]e’s not
willing to come all the way clean,” was an appropriate commentary on the overall evidence and
defendant’s interview with the police in particular. When asked on cross-examination whether he
“remember[ed] giving the police officers a couple different versions of the events of October
27th,” defendant replied in the affirmative. The defendant acknowledged that he falsely told the
police that he dropped his firearm down a nearby storm drain. Then, when asked why he provided
that false statement to the police, defendant explained that he wanted to reassure the police that no
children would be able to obtain his firearm. However, from the overall evidence, particularly the
subsequent telephone calls from jail regarding a “blick,” it was reasonable to infer that defendant
lied to the police because the firearm was not yet discarded, and he did not want to police to search
for it. Simply put, there is nothing inappropriate with the prosecution’s argument that defendant
was not willing to “come all the way clean” during his interview with the police, and no error
occurred in this regard. See Carines, 460 Mich at 763. It follows that any objection by defense
counsel would have been unavailing, and counsel cannot be deemed ineffective for failing to raise
an unavailing objection. See People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).
As to the second statement, “I don’t believe it’s self-defense,” that was an appropriate
commentary on the overall evidence as well. In other words, the prosecution properly argued from
the facts that defendant’s claim of self-defense was not worthy of belief. See People v Launsburry,
217 Mich App 358, 361; 551 NW2d 460 (1996) (“A prosecutor may argue from the facts that a
witness, including the defendant, is not worthy of belief . . . .”). As explained earlier, witness
testimony and other evidence were not consistent with defendant’s claim of self-defense. For
instance, the fatal bullet that struck Ambry II entered near the rear of the vehicle, suggesting that

-- 13 of 17 --

-14-
defendant was chasing the Ambry brothers, not vice versa, and that defendant was not in fear for
his life at the time. Similarly, the inconsistent stories that defendant told the police during the
interview also indicated that he did not legitimately act in self-defense at the time. See People v
Cowell, 44 Mich App 623, 625; 205 NW2d 600 (1973) (“[C]onflicting statements tend to show a
consciousness of guilt and are admissible as admissions.”). Thus, no error occurred with regard
to the second challenged statement, see Carines, 460 Mich at 763, and counsel was not ineffective
for failure to object, see Putman, 309 Mich App at 245.
III. STANDARD 4 BRIEF
A. CELLULAR PHONE RECORDS
In his Standard 4 brief, defendant first argues that defense counsel was ineffective because
he “failed to investigate and request that Defendant’s cell phone which were [sic] seized by the
police, however never dumped to see what evidence was on it. Defendant’s phone records would
have shed light on the fact that John Ambry II had previously threaten Defendant.” We disagree.8
“Criminal defendants are entitled to the assistance of counsel under both the Michigan and
United States Constitutions. Const 1963, art 1, § 20; US Const, Am VI. This right guarantees the
effective assistance of counsel.” People v Yeager, 511 Mich 478, 488; 999 NW2d 490 (2023). “In
order to obtain a new trial because 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 that outcome would have
been different.” Id. (quotation marks and citation omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation
omitted). “The defendant has the burden of establishing the factual predicate of his ineffective
assistance claim.” Douglas, 496 Mich at 592.
Defendant has failed to sustain his burden on this issue. He has not identified anything in
the lower-court record, nor has he provided any materials on appeal, to suggest that his cellular-
phone records would have contained any exculpatory evidence such as threatening
communications from Ambry II. In fact, defendant has not even explained the nature of these
alleged threatening communications, e.g., whether these alleged threats included direct threats of
harm, implied threats of harm, overall anger, or something else. Therefore, he is not entitled to
relief for this issue. See id.
B. FAILURE TO IMPEACH
Defendant next argues that defense counsel was ineffective because he failed to impeach
Ambry III in the following respects: (1) Ambry III testified at trial that he first noticed the Dodge
8 One of the officers who arrested defendant at his house briefly testified that, when conducting a
search incident to arrest, “I recovered a cellphone from his person as well, but I handed that over
to the Homicide detectives so I didn’t personally place that on evidence.” There was no additional
discussion of that cellular phone at trial. Simply put, as defendant observes, the police were in
physical possession of his cellular phone at one point in time.

-- 14 of 17 --

-15-
Journey travelling behind him in a different direction, while he testified at the preliminary
examination that he first noticed the Dodge Journey “following us”; (2) Ambry III testified at trial
that he initially identified defendant in the Dodge Journey but could not identify whether anyone
else was present in that vehicle, while he testified at the preliminary examination that he did not
observe anyone else besides defendant in the Dodge Journey; (3) Ambry III testified at trial that
he did not attempt to provide medical aid to his brother, whereas he testified at the preliminary
examination that he attempted to determine whether his brother was breathing before removing
his brother from the vehicle; and (4) Ambry III testified at one point during the preliminary
examination that he and his brother never turned onto State Fair, whereas he indicated at another
point during the preliminary examination that they briefly drove on State Fair until “the next
corner.”9 Defendant asserts that Ambry III committed perjury and that there is a reasonable
probability that the outcome of trial would have been different had defense counsel properly
impeached Ambry III.
We agree with defendant that, as a general proposition, “[c]ounsel may provide ineffective
assistance if counsel unreasonably fails to develop the defendant’s defenses by adequately
impeaching the witnesses against the defendant.” Lane, 308 Mich App at 68. However, minor
discrepancies do not establish perjury. See Schaffer v Beringer, 842 F3d 585, 595 (CA 8, 2016);
United States v Scarfo, 711 F Supp 1315, 1322 (ED Pa, 1989). In this case, each of the alleged
inconsistences identified by defendant are either minor or essentially nonexistent. For example,
Ambry III consistently testified that he and his brother were driving around the neighborhood
when, at some point, defendant noticed and started following them. The particular direction in
which defendant was initially driving is irrelevant for the facts of this case. Similarly, whether
Ambry III initially observed any passengers in the Dodge Journey, whether checking on his
brother’s breathing constitutes medical assistance, and whether Ambry III and his brother
momentarily drove on State Fair are not relevant issues. This is particularly true in light of the
fact that some of the questions posed to Ambry III were not precise, which may have led him to
provide a slightly different answer than what was intended or expected. Any attempt by defense
counsel to raise these alleged impeachment issues at trial would have been unavailing. The record
does not show that Ambry III committed perjury, that defense counsel should have exercised better
diligence by raising these alleged impeachment issues at trial, or that attempting to impeach Ambry
III in the manner suggested by defendant would have created a reasonable probability of a different
outcome. Thus, we conclude that defendant has failed to establish both elements of his ineffective-
assistance claim. See Yeager, 511 Mich at 488.
C. FOURTH AMENDMENT
Finally, defendant argues that the police violated the Fourth Amendment by searching his
house without obtaining a valid search warrant beforehand and, as a result, the incriminating 9mm
ammunition found in his house should have been suppressed. Defendant asserts that the trial court
9 Defendant identifies a few other alleged inconsistencies in his Standard 4 brief. However, the
transcripts do not indicate the existence of such inconsistencies, and we will not catalogue them
further.

-- 15 of 17 --

-16-
plainly erred by admitting the ammunition or, alternatively, that defense counsel was ineffective
for failure to object. We disagree.
“The Fourth Amendment of the United States Constitution and its counterpart in the
Michigan Constitution guarantee the right of persons to be secure against unreasonable searches
and seizures.” People v Rodriguez, 327 Mich App 573, 583; 935 NW2d 51 (2019) (quotation
marks and citations omitted). “Ordinarily, searches conducted without a warrant are
unreasonable.” Id. “And, generally, when evidence has been seized in violation of the
constitutional prohibition against unreasonable searches and seizures, it must be excluded from
trial.” People v Mahdi, 317 Mich App 446, 458; 894 NW2d 732 (2016) (quotation marks and
citation omitted). Here, because defense counsel failed to object, our review is for plain error
affecting substantial rights. See Carines, 460 Mich at 763.10
The two facts identified by defendant do not suggest, much less establish, that any Fourth
Amendment violation occurred. The record shows that at 4:07 p.m. on October 27, 2022, Detective
Mays obtained a waiver of Miranda rights from defendant before questioning him. The record
also shows that at 4:42 p.m. on October 27, 2022, Sergeant Flanders received “approval to execute
the search warrant” from a judge. There is nothing unusual about this sequence of events that
would indicate any violation of the Fourth Amendment. Further, we note that there is nothing else
in the record to reasonably indicate the possibility of a Fourth Amendment violation. To the
contrary, a forensic technician testified that at approximately 6:00 p.m. on October 27, 2022, she
assisted with the execution of a search warrant at defendant’s house, which revealed, in relevant
part, eight rounds of 9mm ammunition on the kitchen countertop. In other words, trial testimony
indicates that the police first searched defendant’s house about an hour after a judge approved the
search warrant. Further, there is no argument or suggestion that the search warrant itself was
invalid. Therefore, the trial court did not plainly err by admitting evidence of the incriminating
9mm ammunition in defendant’s house, see Carines, 460 Mich at 763, nor was defense counsel
ineffective for failure to object, see Putman, 309 Mich App at 245.11
IV. CONCLUSION
10 Arguably, this issue is waived because defense counsel affirmatively stated that he had no
objection to admission of the photographs of the 9mm ammunition, but we will nonetheless
address the merits under the plain-error standard.
11 In his one-page affidavit accompanying his amended Standard 4 brief, defendant summarily
asserts that “[t]he day that I was arrested the arresting officers entered the dwelling from the back
entrance and began the search inside the home.” However, even taking this allegation as true,
defendant would not be entitled to relief because the only incriminating evidence found by the
police was the 9mm ammunition in the kitchen. And, because defendant admitted to shooting at
the GMC SUV while testifying, the fact that the police found ammunition consistent with the
shooting in defendant’s house could not have created any reasonable probability of a different
outcome in this case. See Carines, 460 Mich at 763; Yeager, 511 Mich at 488.

-- 16 of 17 --

-17-
None of the issues raised by defendant in his brief on appeal or his Standard 4 brief entitle
him to relief. Accordingly, we affirm.
/s/ Michael J. Riordan
/s/ Randy J. Wallace
/s/ Christopher M. Trebilcock

-- 17 of 17 --