COA 374922 PEOPLE OF MI V CARLOUS SKIPPER JR Opinion - Per Curiam - Unpublished 6/24/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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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UNPUBLISHED
June 24, 2026
1:37 PM
v No. 374922
Wayne Circuit Court
CARLOUS SKIPPER, JR., LC No. 21-007076-01-FC
Defendant-Appellant.
Before: GADOLA, C.J., and RIORDAN and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his convictions, following a jury trial, of second-degree
murder, MCL 750.317, and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b, for which he was sentenced to 17 to 40 years in prison for the former
and two consecutive years in prison for the latter.1 In his principal brief on appeal, defendant
argues that his convictions should be reversed because the prosecutor committed error during his
opening statement and rebuttal through certain prejudicial comments. Further, in his Standard 4
brief and supplement thereto, defendant raises several other arguments. We affirm.
I. FACTS
In the early morning hours of January 14, 2021, an Uber driver was shot and killed in
Detroit, and defendant was charged with his murder. Upon the prosecutor’s pre-trial motion, the
trial court entered an order allowing Dr. Tom Shazer to conduct a forensic psychiatric examination
of defendant “as it relates to the issue of criminal responsibility.” Dr. Shazer opined that defendant
was not suffering from a mental illness at the time of the offense.2 However, Drs. Ann Zaborney
1 To be precise, the jury found defendant guilty but mentally ill of second-degree murder and guilty
of felony-firearm.
2 “Legal insanity is an affirmative defense requiring proof that, as a result of mental illness . . . the
defendant lacked ‘substantial capacity either to appreciate the nature and quality or the

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and Gerald Shiener also evaluated defendant and opined otherwise. Thus, the central issue at trial
involved his insanity defense.
At trial, the prosecutor introduced extensive evidence regarding the underlying facts of the
murder. Briefly stated, Detective Jelani Dew testified that the police responded to the scene of a
vehicle crash on the night in question and initially investigated it as an accident until an autopsy
revealed that the driver had been shot, with the medical examiner explaining that the victim
suffered two gunshots to the head. Detective Dew testified that he reviewed Uber records as part
of the murder investigation, which led him to a pawn shop on Eight Mile Road where he discovered
that defendant had recently purchased a Beretta 9mm firearm. Detective Eugene Fielder testified
that he arrested defendant a couple of months after the murder and recovered a firearm from him,
and forensic scientist Shelby Szymoniak determined it was the gun that discharged a 9mm shell
casing that apparently was used in, or otherwise connected with, the murder.3
Detective Brad Comer testified that Uber records connected defendant to the murder; that
surveillance video recordings from a church nearby the murder scene apparently showed defendant
walking in that vicinity around the time of the murder; that he assisted with executing a search
warrant at defendant’s home, which uncovered 9mm ammunition and “a gun box for the gun that
was purchased at the pawn shop.” Detective Comer also testified that he interviewed defendant
on March 8, 2021, during which defendant repeatedly indicated that he used Lyft around the time
of the murder. However, according to Detective Comer’s subsequent review of Lyft records,
“there’s no rides taken on the platform of this user it says from 1-13-2021 to 1-15-2021 for all
three accounts.”
Defense counsel objected to admission of evidence and testimony concerning the Lyft
records, stating that he never received the Lyft records in discovery. The trial court agreed with
defense counsel, concluding that a “Brady[4] violation has occurred” and that the remedy is “to
exclude the LYFT record response and to ask the jury to disregard any discussions or questioning
wrongfulness of his or her conduct or [to] conform his or her conduct to the requirements of the
law.’ ” People v Carpenter, 464 Mich 223, 230-231; 627 NW2d 276 (2001), quoting MCL
768.21a(1) (alteration added). “Mental illness or having an intellectual disability does not
otherwise constitute a defense of legal insanity.” MCL 768.21a.
A verdict of “guilty but mentally ill,” in contrast, includes a finding that “[t]he defendant has
proven by a preponderance of the evidence that he or she was mentally ill at the time of the
commission of that offense” but “[t]he defendant has not established by a preponderance of the
evidence that he or she lacked the substantial capacity either to appreciate the nature and quality
or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of
the law.” MCL 768.36(1)(b)-(c). Essentially, a verdict of guilty but mentally ill imposes a
requirement on the state to provide psychiatric treatment during the otherwise-normal term of
incarceration. See MCL 768.36(3).
3 Specifically, a shell casing that was found in the victim’s car was determined to have been fired
from the firearm purchased and possessed by defendant at the time of his arrest.
4 Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).

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in relation to LYFT records that occurred . . . .”5 Thus, the trial court instructed the jury to
“disregard the issue of whether or not a LYFT was used on the date in question by the Defendant.”6
Dr. Zaborney, a forensic psychologist for the Center for Forensic Psychiatry, testified that
she met with defendant on a few occasions to assess his competency to stand trial and his “criminal
responsibility” pursuant to a court order for those evaluations.7 Dr. Zaborney opined that
defendant was competent to stand trial because he could assist with his defense but that “at the
time of the offense was legally insane, met the statutory criteria for that and was not criminally
responsible.” Dr. Zaborney testified about her opinion at length, including defendant’s description
of the shooting to her:
I ask him what -- does the driver say anything to you, and he says the driver says,
are you ready -- I believe it’s, are you ready to die, and then he hears a voice in his
head that says, shoot him, shoot him. He believes his life is in danger. He pulls
out a gun and shoots the driver which he sees as a demon.
Dr. Shiener, a psychiatrist hired by the defense, similarly opined that defendant had a
“psychiatric illness” that “rose to the level of legal insanity.”8 However, Dr. Shazer, the
prosecutor’s rebuttal witness, opined that defendant “does not suffer from any chronic mental
disorder which would have made him mentally ill at the time of the offense.” Dr. Shazer added
5 We question whether the prosecutor’s failure to timely deliver the Lyft records constituted a
Brady violation, as those records tended to show that defendant lied to the police about using Lyft,
which would render those records inculpatory, not exculpatory. See People v Chenault, 495 Mich
142, 150; 845 NW2d 731 (2014) (explaining that Brady applies to evidence “that is favorable to
the accused”). Nonetheless, excluding the Lyft records likely was within the trial court’s discretion
to impose as a remedy for a discovery violation. See People v Davie (After Remand), 225 Mich
App 592, 597-598; 571 NW2d 229 (1997). In any event, the point is moot because the jury found
defendant guilty without the records being admitted into evidence.
6 Following Detective Comer’s testimony and the conclusion of the prosecutor’s case, defendant
moved for a directed verdict on the first-degree murder charge, arguing that the prosecutor failed
to show deliberation or premeditation. The trial court agreed and reduced that charge to second-
degree murder, consistent with the prosecutor’s request to add that reduced charge to the
information.
7 See MCL 768.20a(2) (“Upon receipt of a notice of an intention to assert the defense of insanity,
a court shall order the defendant to undergo an examination relating to his or her claim of insanity
by personnel of the center for forensic psychiatry or by other qualified personnel, as applicable,
for a period not to exceed 60 days from the date of the order.”).
8 Dr. Shiener briefly testified that he “was asked to perform a consultation and in this instance the
consultation referral request was to determine [defendant’s] state of mind . . . .” The initial terms
of his consultation were never detailed, but defense counsel represented during a pre-trial hearing
that “Dr. Shiner [sic] is the hired independent that we’re using.”

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that defendant “doesn’t have any mental disorder of which hallucinations or delusions are
symptomatic . . . .”
As noted, the jury found defendant guilty but mentally ill of second-degree murder and
guilty of the accompanying felony-firearm charge. Defendant now appeals, arguing in his
principal brief that the prosecutor erred in five respects during his opening statement and rebuttal.
Defendant himself, in his Standard 4 brief and supplement, raises additional arguments.
II. BRIEF ON APPEAL
Defendant first argues that the prosecutor made a prejudicial comment during his opening
statement and four prejudicial comments during his rebuttal which, considered individually or
collectively, require a new trial. Relatedly, defendant argues that defense counsel’s failure to
object to most of these comments constituted ineffective assistance. We disagree with these
arguments.
A. STANDARD OF REVIEW
“In order to preserve an issue of prosecutorial [error], a defendant must contemporaneously
object and request a curative instruction.” People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). “Issues of prosecutorial [error] are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial.” Id. However, “[u]npreserved issues are reviewed
for plain error affecting substantial rights.” 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).
“A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law.” People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021) (quotation
marks and citation omitted). “All findings of fact are reviewed for clear error, while the legal
questions are reviewed de novo.” Id. (quotation marks and citation omitted). “When the reviewing
court is left with a definite and firm conviction that the trial court made a mistake, there is clear
error.” Id. (quotation marks and citation omitted). However, because the trial court did not
conduct a Ginther hearing,9 our review is limited to mistakes apparent on the record. See People
v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
“Criminal defendants are entitled to the assistance of counsel under both the Michigan and
United States Constitutions.” People v Yeager, 511 Mich 478, 488; 999 NW2d 490 (2023). “This
right guarantees the effective assistance of counsel.” Id. “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,
9 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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there is a reasonable probability that that outcome would have been different.” Id. (quotation
marks and citation omitted).
B. DISCUSSION
Prejudicial comments by a prosecutor may result in a denial of due process. See Donnelly
v DeChristoforo, 416 US 637, 643; 94 S Ct 1868; 40 L Ed 2d 431 (1974). “A prosecutor may not
make a factual statement to the jury that is not supported by the evidence, but he or she is free to
argue the evidence and all reasonable inferences arising from it as they relate to his or her theory
of the case.” People v Dobek, 274 Mich App 58, 66; 732 NW2d 546 (2007) (citations omitted).
“The prosecution has wide latitude in arguing the facts and reasonable inferences, and need not
confine argument to the blandest possible terms.” Id. “A prosecutor may not argue facts material
to the case which are not in evidence.” People v Dalessandro, 165 Mich App 569, 581; 419 NW2d
609 (1988). “A prosecutor may not appeal to the jury to sympathize with the victim. Nor may a
prosecutor urge the jury to convict as part of its civic duty or on the basis of its prejudices.” People
v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008) (internal citations omitted). Further, the
prosecutor may not disparage the defendant’s expert witnesses. See People v Tyson, 423 Mich
357, 375; 377 NW2d 738 (1985) (“[I]nvective, ridicule, injection of his belief, and innuendoes
was not permissible argument, and was unfair to the experts and prejudicial to defendant.”)
(quotation marks and citations omitted).
“[T]he prosecutor is permitted, as an advocate, to make fair comments on the evidence,
including arguing the credibility of witnesses to the jury when there is conflicting testimony and
the question of defendant’s guilt or innocence turns on which witness is believed.” People v
Flanagan, 129 Mich App 786, 796; 342 NW2d 609 (1983) (citations omitted). “However, in every
case, the remarks of the prosecutor must be viewed with reference to the prosecutor’s duty of
fairness.” Id.
Here, defendant challenges four comments from the prosecutor’s rebuttal and one excerpt
from the prosecutor’s opening statement, each of which will be quoted below with additional
context when appropriate.10 The comment from opening statement is as follows:
I believe all the elements will be met and satisfied and there will not be an
excuse or justification for why he shot and murdered an Uber driver. The devil
made me do it. I know you’ve all heard it. It’s a fairly common phrase. It’s not
that simple. You don’t just get to say, the devil made me do it, and shoot somebody
to death.
Now, this case -- the facts of this case aren’t exactly, the devil made me do
it. It’s slightly different than that. Mr. Skipper believes that he shot a demon.
10 The only time that defense counsel objected to any of these comments was in response to the
first challenged comment of the prosecutor’s rebuttal. Thus, while the challenge to that comment
is preserved, the remaining four challenges are unpreserved. See Bennett, 290 Mich App at 475.
However, as noted, defendant raises the parallel argument that defense counsel’s failure to object
constituted ineffective assistance.

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Mental health, it’s a serious issue. It’s very prominent today in the news. You see
it all the time. It’s not -- it needs to be taken serious and I know you all take it
serious and that’s the right thing to do. It is not a free pass for murder.
* * *
That’s the legal question that you’ll be asked to determine at the end.
Basically the question for you will be, did that mental illness make him do it and
the answer should be no because it was a lie. I’m sympathetic to people with mental
illness. Many people are. I’m sympathetic to this particular Defendant because of
his history of mental illness, but it’s not an excuse. It’s not a justification.
In this case what it is, is it’s a crutch and it’s his last resort after all the other
lies failed, it’s a last resort to get out of trouble. Typically I would do some power
points and go through each of the elements of each charge and explain them to you.
. . .
We disagree with defendant that the prosecutor unfairly ridiculed or mocked his insanity
defense. Rather, the prosecutor acknowledged that mental health is a “serious issue.” Further,
given that defendant told Dr. Zaborney that a voice in his head told him to shoot the victim, who
he perceived as a demon, it was reasonable for the prosecutor to analogize this case to the
stereotypical phrase of “the devil made me do it.” And, given that there was some evidence
introduced at trial to indicate that defendant was sane and that he tried to evade criminal
responsibility for the shooting by lying to the investigators, it was reasonable for the prosecutor to
suggest that defendant was using his documented mental-health issues as a mere excuse to avoid
responsibility. In other words, the prosecutor asserted that in light of the facts of the case, the
insanity defense was not appropriate to apply to defendant. Moreover, there is no language in the
challenged comment that strikes us as particularly concerning or emotionally charged. Thus, the
challenged comment here was not erroneous, and defense counsel cannot be deemed ineffective
for failure to raise a meritless objection. See People v Heft, 299 Mich App 69, 83; 829 NW2d 266
(2012).
The first comment from rebuttal is as follows:
When you look at the elements I believe there’s plenty of evidence to find
him guilty of second degree murder and I’m not going to beat that to death, but
whether or not he was mentally ill at the time of the crime I think is the real issue
in this case, okay.
I don’t believe that you get to whether or not he was insane at the time,
whether or not he was having delusions or hallucinations cause I believe Doctor
Shazer is correct when he asserts that he would need to have mental illness at the
time, January 14th, 2021 and so you should not find him not guilty by reason of
insanity. At the very minimum he should be guilty but mentally ill.
According to defendant, the above quote was erroneous because “[t]he prosecutor urged
the jurors to determine whether Mr. Skipper was mentally ill,” which violates the principle that “it
is not permissible for a prosecutor to specifically invite a jury to compromise between a verdict of

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guilty and not guilty by reason of insanity by picking the middle ground of guilty but mentally ill.
The jury must be asked to first determine whether there is mental illness and then to make a
determination of whether the mental illness has ripened into insanity.” People v Wallace, 160
Mich App 1, 11; 408 NW2d 87 (1987). In other words, defendant asserts, “[t]his was a plea by
the prosecutor to nullify the insanity defense.” We disagree. The prosecutor simply noted, very
reasonably, that the evidence showing that defendant actually committed the shooting at issue was
overwhelming and not subject to significant dispute, and that the debatable question before the
jury was the insanity defense. Next, the prosecutor contended that defendant did not suffer mental
illness, as Dr. Shazer opined, such that it was unnecessary for the jury to assess whether defendant
satisfied the remaining elements of the insanity defense. See People v Carpenter, 464 Mich 223,
230-231; 627 NW2d 276 (2001). This was not erroneous. Rather, it was an accurate representation
of the law. Id. The prosecutor’s reference to “[a]t the very minimum he should be guilty but
mentally ill,” when considered in context, was not an invitation for some type of jury compromise
or nullification of the insanity defense. Rather, it was an implicit acknowledgment by the
prosecutor that defendant did have a documented history of mental-health issues from before the
shooting, as well as significant evidence on that matter from after the shooting, such that a verdict
of guilty but mentally ill would be appropriate. Such an acknowledgement does not run afoul of
the general principle that the prosecutor cannot invite an improper jury compromise or nullification
of the insanity defense. See Wallace, 160 Mich App at 11. Thus, no error occurred.
The second comment from rebuttal is as follows:
The Defendant lies about -- first of all, about being there. I wasn’t there. I
was home that night. I stayed at my friend’s house. Second lie, ah, yeah, I think
that I did go somewhere. I don’t use Uber, but I use LYFT.
* * *
The documents show -- the Uber records show that he had an iPhone 11 on
the day of the shooting. What was taken from him when he was arrested was an
iPhone 12 Max. He’s getting rid of the evidence along the way, along this two
month period, or whatever it was, until he’s arrested. [Emphasis added.]
According to defendant, the italicized reference to Lyft was erroneous because the
prosecutor reminded the jury that “Mr. Skipper lied about having taken a Lyft during his
interrogation, despite the Court’s having stricken the exhibit containing Lyft records and had
instructed the jury to disregard the testimony about Lyft, based on a discovery violation.” We
disagree that error occurred but, even if this reference was erroneous, it did not amount to plain
error. The prosecutor asserted that defendant lied when he essentially said, “I don’t use Uber, but
I use LYFT.” The lie that was being highlighted by the prosecutor here was not defendant’s
contention that he used Lyft but, rather, his contention that he did not use Uber. This is illustrated
by the fact that the prosecutor referenced the Uber records showing that defendant used Uber and
did not reference the Lyft records. Thus, while the prosecutor theoretically could have ended the
italicized sentence without stating, “but I use LYFT,” any error in this regard was minimal and did
not rise to the level of being clear or obvious. See Carines, 460 Mich at 763. Further, given that
the reference to Lyft in closing argument was minimal and not reinforced by, for example,
discussion of the excluded Lyft records, we cannot conclude that any plain error was prejudicial.

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See id. This is particularly true in light of the fact that defendant’s identity as the shooter was not
heavily disputed at trial. Thus, even if defense counsel had successfully objected, there is no
reasonable probability that a different outcome would have resulted. See Yeager, 511 Mich at 488.
The third challenged comment from rebuttal is as follows:
Now, Doctor Zaborney -- again, I have no problem with her testimony. I
don’t think she’s lying. I don’t think she’s trying to be deceitful like Mr. Jaffe
claims that I might accuse her of, but I believe that she got fooled and I believe that
she wasn’t provided with all the necessary documents and so when she did her
evaluation she had, you know, all the historical stuff and she talked to the
Defendant, right.
She didn’t watch the police interview and she didn’t know a lot of the key
facts, like the Defendant walked right up to the window and shot Mr. Al-Gabri right
in the face, once on the side of the nose, once in the head.
He left a shell casing in the vehicle, close enough for stippling on his face
and the shell casing on the floor, but he didn’t tell Doctor Zaborney any of that
during the interview. It was all about taking out the trash, doing this and that and,
by the way, mom doesn’t remember anything about the trash can either.
The fourth comment, which is related to the third and followed shortly thereafter, is as follows:
I’ll tie it up in a second, but Doctor Zaborney was just tricked. She didn’t
know about the shell casing and she was fooled by the Defendant. She was fooled
to think that he was being honest. There’s no evidence, though. She didn’t follow-
up with questions to challenge him or anything like that. Just asked follow-up
questions.
See if he can explain things a little bit better. Why do you say that you were
in your driveway with trash cans and you froze because you were so scared when
the shooting happened on the street four houses down at the intersection? Never
asked that.
Look at the evidence clear [sic?]. Doctor Zaborney did not have all the
information that she needed to make the assessment that she knew at the time he
was not mentally ill. The specific lies. I know there’s a lot of lies. When you
watch the police interrogation there’s a lot of lies that are very, very specific lies
and this let’s into the Defendant’s head throughout all of this.
Defendant suggests that these two comments constituted “unfounded personal attacks on
and ridicule of [his] expert witness . . . .” We disagree. The prosecutor introduced his comments
about Dr. Zaborney by stating that he had “no problem with her testimony” and that he did not
believe that she was “lying” or “trying to be deceitful.” In other words, the prosecutor indicated
that he did not believe that Dr. Zaborney testified or otherwise acted in bad faith. Rather,
considered in context, the prosecutor’s comments about Dr. Zaborney being “fooled” and “tricked”
were references to defendant misleading, if not outright lying to, Dr. Zaborney during her

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evaluation of him. For example, defendant apparently told Dr. Zaborney inconsistent versions of
when he first began hearing voices, with one timeframe being characterized by Dr. Zaborney as
“very unusual” in her field. Further, while the prosecutor attempted to cast doubt upon the
credibility of Dr. Zaborney’s opinion by suggesting that she did not ask sufficient follow-up
questions of defendant when evaluating him, the prosecutor’s comments were appropriate to
question her credibility and did not cross the line into unfair personal attacks. See Tyson, 423
Mich at 375. That is, the prosecutor did not call into doubt Dr. Zaborney’s qualifications,
intelligence, or good-faith conduct as it relates to this case. Thus, no error occurred, and any
objection by defense counsel would have been meritless. See Heft, 299 Mich App at 83.
In summary, four of the five challenged comments were not erroneous, and only the second
challenged comment of rebuttal, in which the prosecutor briefly suggested that defendant lied
about using Lyft, can arguably be called erroneous. However, that comment was brief, did not
rise to the level of plain error, and any objection by defense counsel could not have created any
reasonable probability of a different outcome of trial. Therefore, defendant is not entitled to relief
for his claim of prosecutorial error.
III. STANDARD 4 BRIEF
In his Standard 4 brief, raises several arguments, none of which has merit. Defendant
argues that he received the ineffective assistance of counsel in two respects. First, defense counsel
failed to move for a mistrial after one prospective juror in the jury panel said that “my cousin, my
son’s Godfather, they got into a altercation and he got let off for mental insanity cause he does
have this and then my son’s Godfather is no longer with us,” and another prospective juror, when
generally asked about the case, said that “just the whole idea about premeditated without mental
issues, but somebody with mental issues, you know, this person can be found guilty. This person
did it still with a mental issue. I mean, is there some resource of the victim?” Defendant reasons
that these two comments tainted the entire jury pool. Next, defense counsel failed to object during
the prosecutor’s rebuttal when the prosecutor told the jury that defendant “went right to where he
told the Uber to meet him at,” and when the prosecutor told the jury that defendant replaced his
iPhone 11 with an iPhone 12 after the shooting in an apparent attempt to conceal evidence.
According to defendant, both of these statements were unsupported by the evidence.
Defendant also argues that the prosecutor committed error by “contradict[ing] the evidence
to spread false and misleading information not to seek justice but just another conviction,” and
violated Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), by failing to disclose
the video recording from a residence near the shooting. Defendant asserts that “I seen the said
video after trial which not only does it not showcase any vehicle driving down the street, you don’t
see any gun flash which proves the shooting didn’t happen where detectives said it happened.”
With regard to the comments by the prospective jurors, a defendant has “the right to be
tried by an impartial jury,” and when a defendant raises an argument on appeal that “the process
did not result in an impartial jury, [the] defendant has the burden to show that a particular juror
was not impartial or, at the very least, that the juror’s impartiality was in reasonable doubt.” People
v Haynes, 338 Mich App 392, 411; 980 NW2d 66 (2021). Such a claim is preserved for appeal by
requesting a mistrial or a new jury panel. See id. As defendant correctly observes, his defense
counsel did not do so.

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The Ohio Supreme Court has explained that it “will not presume that a venire is tainted
when a prospective juror makes improper comments during voir dire.” State v Worley, 164 Ohio
St 3d 589, 609; 174 NE3d 754 (2021). “The party challenging the entire jury panel has the burden
to show either that the jurors were unlawfully impaneled or that the jurors could not be fair and
impartial.” Id. (quotation marks and citation omitted). In other words, when a jury panel is
exposed to potentially prejudicial comments by a prospective juror, the question is whether “the
exposure was so prejudicial as to be unsusceptible to neutralizing by an admonition to the jury.”
Mariscal-Ochoa v State, 550 P3d 813, 819 (Nev, 2024) (quotation marks and citation omitted).
Here, we first note that both of the prospective jurors identified by defendant were excused
and, therefore, did not serve on the jury itself.11 Moreover, there is nothing unusual about the
comments at issue to suggest that the entire jury panel was tainted by them. The first comment,
which involves the prospective juror’s cousin, seems to suggest that the prospective juror believes
that the insanity defense allows a criminal defendant to be “let off” from responsibility for his or
her crime. However, the comment was brief and does not strike us as out of the ordinary for a voir
dire involving the insanity defense. Further, the comment did not cast doubt on the insanity
defense in this case in particular, nor did it assume or imply that defendant himself was guilty.
The second comment is ambiguous and simply inquires, “I mean, is there some resource of the
victim?” We cannot discern any significant prejudice from this comment, as it is more of a
philosophical observation about the balance between moral culpability and punishment, as
opposed to a diminishment of the insanity defense itself.
Simply put, the two comments identified by defendant on appeal were not prejudicial.
Indeed, the purpose of voir dire in a case such as this one is to identify those prospective jurors
who might have a bias against the insanity defense so that they may be excused, thereby ensuring
the defendant a fair and impartial jury. See Haynes, 338 Mich App at 411. Therefore, any motion
by defense counsel for a mistrial or to have the entire jury panel excused would have been
meritless, and counsel cannot be deemed ineffective for failure to raise a meritless motion. See
Heft, 299 Mich App at 83.
With regard to the prosecutor’s rebuttal, we simply note that the prosecutor’s comments
were fully supported by the evidence. See Dobek, 274 Mich App at 66. Detective Comer testified
that, according to Uber records, the victim’s pick-up location was “near 16232 Wisconsin . . .
almost between that and the next-door neighbor.” Moreover, Detective Comer testified that Uber
records indicated that defendant used “an iPhone model 11” around the time of the shooting, while
Detective Fielder testified that defendant was arrested with an “Apple iPhone 12” in his possession.
Thus, the prosecutor’s comments about the pick-up location scheduled by defendant and his
different cellular phones were consistent with trial testimony.
Finally, defendant argues that the prosecutor violated Brady by failing to disclose to his
defense a residential camera recording from near the alleged shooting location that apparently does
not show a vehicle driving down the street or a gun flash, “which proves the shooting didn’t happen
11 The prospective juror who made the first comment was challenged by the prosecutor, and the
one who made the second comment was challenged by defense counsel.

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where detectives said it happened.”12 We agree with defendant that the prosecutor had a duty to
disclose exculpatory evidence possessed by the police. See People v Chenault, 495 Mich 142,
150-151; 845 NW2d 731 (2014). However, defendant provides no factual support for his assertion
about the recording, such as the recording itself, so he has failed to sustain his burden of showing
a Brady violation. See People v Schumacher, 276 Mich App 165, 177; 740 NW2d 534 (2007).
Regardless, we note that the trial testimony overwhelmingly indicated that the victim was shot
near the pick-up location identified by defendant and crashed his car immediately afterwards, and
it is almost inconceivable that the victim’s body or his car, or both, were secretly moved from the
actual shooting location. Thus, we doubt that the recording discussed by defendant had
exculpatory value. See Chenault, 495 Mich at 150.
IV. STANDARD 4 BRIEF SUPPLEMENT
In his Standard 4 brief supplement, defendant argues that he received the ineffective
assistance of counsel in the following respects: (1) defense counsel failed to properly cross-
examine the medical examiner about the caliber of firearm that was used in the shooting; (2)
defense counsel failed to move to exclude the shell casing found in the victim’s car that was
apparently used in the shooting and, relatedly, failed to properly question police witnesses about
finding that shell casing; and (3) defense counsel failed to properly cross-examine Detective
Comer about such matters as the church surveillance video and firearm ballistics. Defendant also
argues that the trial judge pierced the veil of judicial impartiality by (1) allowing Szymoniak to
testify that the shell casing found in the victim’s car was discharged from the firearm possessed by
defendant when he was arrested despite the fact that her report was insufficient; (2) allowing the
case to proceed beyond the directed-verdict stage; (3) failing to recognize that the arrest and search
warrants in this case included false information. We disagree with these arguments.
With regard to the ineffective-assistance claim, the three specific arguments raised by
defendant concern the identity of the shooter. In other words, defendant asserts that defense
counsel was ineffective for failure to challenge some of the circumstantial evidence indicating that
he was the shooter. However, defense counsel’s trial strategy was to essentially concede that
defendant was the shooter but argue that defendant should not be criminally liable on the basis of
insanity. Given that the totality of the evidence easily established that defendant was the shooter,
defense counsel’s trial strategy was eminently reasonable. See Strickland v Washington, 466 US
668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984).13 Thus, we cannot fault defense counsel for
12 Defendant additionally suggests that the prosecutor otherwise “spread false and misleading
information” but does not identify a specific example of the prosecutor doing so. Thus, we deem
this argument abandoned. See People v Johnson, 340 Mich App 531, 550-551; 986 NW2d 672
(2022).
13 We acknowledge the possibility that defense counsel’s entire trial strategy could have been
flawed if, as defendant argues, defense counsel should have instead contended that defendant was
not the shooter. However, the challenges raised by defendant here either distort the record or are
ancillary to the fundamental question of his identity as the shooter. For example, defendant states
that “[m]y attorney never questioned Dr. Sung [the medical examiner] about what caliber weapon

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failure to challenge some of the circumstantial evidence indicating that defendant was the shooter,
and relief is not warranted for this claim.14
With regard to the judicial-impartiality claim, “[a] trial judge’s conduct deprives a party of
a fair trial if the conduct pierces the veil of judicial impartiality,” and “[a] judge’s conduct pierces
this veil and violates the constitutional guarantee of a fair trial when, considering the totality of
the circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury
by creating the appearance of advocacy or partiality against a party.” People v Stevens, 498 Mich
162, 164; 869 NW2d 233 (2015). Here, however, none of the arguments raised by defendant
actually suggest the possibility that the jury was tainted by the appearance of advocacy or partiality
by the trial judge. Nor does the record otherwise suggest any type of judicial basis. Rather,
defendant raises underlying claims of legal error in these proceedings, which we will nonetheless
address notwithstanding his failure to adequately brief them.
As to allowing Szymoniak to testify about the 9mm shell casing, while not entirely clear
from defendant’s argument, he appears to be concerned with the fact that Szymoniak concluded
that the shell casing found in the victim’s car was discharged from the firearm recovered from
defendant when he was arrested, notwithstanding that Szymoniak testified that she did not include
all of the exact microscopic similarities in her final written report. The implication by defendant
is that Szymoniak’s testimony should have been excluded for this reason, possibly because it
violated MRE 702 or 703, or both. However, Szymoniak testified that she recorded the
microscopic similarities in her “work sheet through either verbal or written notes or through
photographs.” Defendant has not cited any authority to suggest that an expert such as Szymoniak
cannot testify about the link between a shell casing and a firearm unless the entirety of his or her
informal verbal and written notes are introduced as evidence at trial. While there might be a
constitutional or evidentiary issue if Szymoniak had relied upon the verbal or written notes of
another person in reaching her conclusion, see People v Lonsby, 268 Mich App 375, 388-389; 707
NW2d 610 (2005), no such concerns are present here. Thus, relief is not warranted for this issue.
With regard to the trial court’s purported failure to grant defendant a directed verdict, “[w]e
review the record de novo,” and “[c]onsidering all the evidence presented by the prosecution in
was used in the shooting, this is important because lead detective, Brad Comer said in the probable
cause paperwork that a 9mm was used in the shooting, when Dr. Sung never mentioned what
caliber was used in his report.” But, such hypothetical testimony about firearm ballistics would
not have been appropriate from the medical examiner, as there is nothing to suggest that he was
qualified to testify about such matters. Moreover, the medical examiner explained that both bullets
had “exit wound[s],” which suggests that he did not recover any bullets whatsoever. Thus, it is
difficult for us to discern how the medical examiner could have opined about the caliber of bullets
used in the shooting.
14 We briefly note, however, that defense counsel cross-examined the prosecution witnesses, often
at length, regarding such matters as memory reliability. Thus, defense counsel did test the
prosecutor’s case concerning defendant’s identity as the shooter. He also made successful motions
during this trial in an attempt to contest defendant’s identity as the shooter, such as arguing that
the Lyft records should be excluded.

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the light most favorable to the prosecution, a directed verdict is inappropriate where a rational trier
of fact could find that the essential elements of the crime charged were proven beyond a reasonable
doubt.” People v Hammons, 210 Mich App 554, 556; 534 NW2d 183 (1995). We first note that
the trial court granted defense counsel’s motion at the conclusion of the prosecutor’s case to
dismiss the charge of first-degree murder, as the prosecutor failed to sufficiently show
premeditation and deliberation. See MCL 750.316(1)(a). To the extent that defendant is arguing
in his Standard 4 brief supplement that the trial court should have sua sponte dismissed the entire
case, we disagree. The evidence establishing that defendant was the shooter is fairly characterized
as overwhelming, given that Uber records indicated that defendant was responsible for ordering
the Uber drive before the shooting and that defendant was arrested with the murder weapon in his
possession, as well as other circumstantial evidence that we need not recite here. Thus, the trial
court properly allowed the jury to decide whether defendant committed the shooting. See id.
Moreover, given that there was disagreement between the expert witnesses regarding defendant’s
sanity at the time of the offense, the trial court properly allowed this question to proceed to the
jury as well. Id. Thus, no error occurred with regard to the trial court’s failure to sua sponte grant
a directed verdict of the entire case.
Finally, defendant is not entitled to relief for the trial court’s alleged failure to recognize
that the arrest and search warrants in this case included false information. First, defendant has not
provided us with copies of those warrants or identified where that material may be located in the
lower-court record, as the record that has been transmitted to us does not appear to include that
material. Thus, defendant has failed to sustain his burden of establishing the factual basis for his
claim. See People v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000). Second, the factual
discrepancies identified by defendant in his Standard 4 brief supplement do not suggest that the
affiant(s) “knowingly and intentionally, or with reckless disregard for the truth, inserted false
material into the affidavit and that the false material was necessary to a finding of probable cause.”
People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992). For example, defendant
represents that according to the “probable cause paperwork” drafted by Detective Comer, “on
January 24, 2021 Fitzhugh found the 9mm shell casing yet at trial when questioned by the
prosecutor Fitzhugh testified to finding the shell casing on January 19, 2021[.]” However,
assuming that defendant is correct that one or both of the warrants misstated the date of discovering
the shell casing as January 24, that misstatement is mundane and does not rise to the level of
suggesting the type of malice or materiality necessary for striking the warrant. See id. By the
same measure, the other discrepancies identified by defendant are incidental as well. For these
reasons, defendant is not entitled to relief for this issue.
V. CONCLUSION
There were no errors warranting relief. Accordingly, we affirm.
/s/ Michael F. Gadola
/s/ Michael J. Riordan
/s/ Anica Letica

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