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Summary of Opinion: People v. Parker, Docket No. 199568 (Mich. Ct. App. July 14, 1998)

Factual and Procedural Background

Defendant Wade S. Parker was charged with first-degree murder (MCL 750.316; MSA 28.548), possession of a firearm by a person convicted of a felony ("felon in possession," MCL 750.224f; MSA 28.241(6)), and possession of a firearm during the commission of a felony ("felony-firearm," MCL 750.227b; MSA 28.424(2)) in connection with the May 15, 1995, shooting death of Michael Hadley in Benton Harbor. The prosecution contended the killing was premeditated and unprovoked; defendant claimed self-defense, asserting Hadley threatened him with a handgun. Following a jury trial, defendant was convicted of second-degree murder (MCL 750.317; MSA 28.549), felon in possession, and felony-firearm. He was sentenced to consecutive terms of 30 to 90 years' imprisonment for the second-degree murder conviction and 2 years' imprisonment for the felony-firearm conviction. The record shows no sentence was initially imposed for the felon-in-possession conviction. Defendant appealed as of right. The Court of Appeals affirmed the convictions and sentences, but remanded for imposition of a sentence on the felon-in-possession conviction.

Legal Issues Presented

  1. Whether the trial court erred by repeating jury instructions regarding first- and second-degree murder but not repeating instructions regarding manslaughter and self-defense.
  2. Whether the trial court erred in excluding testimony from David Jose about an alleged prior inconsistent statement by prosecution witness Nathan Magee.
  3. Whether defendant's felon-in-possession conviction was erroneous because the applicable statutory firearm prohibition period is three years rather than five years under MCL 750.224f; MSA 28.421.
  4. Whether admission of a 1988 judgment of probation was erroneous and whether defendant preserved that objection.
  5. Whether MCL 750.224f; MSA 28.421(6) is unconstitutional under the Michigan Constitution (right to keep and bear arms) or the Ex Post Facto Clauses of the federal or state constitutions.
  6. Whether defendant's convictions must be vacated because he was held in custody for more than 90 days before trial commenced.
  7. Whether the trial court lacked jurisdiction to try the felon-in-possession charge because the preliminary examination did not include evidence of defendant's 1988 conviction.
  8. Whether defendant was denied due process by being excluded from a hearing on the prosecution's petition to hold two individuals as material witnesses.
  9. Whether the exclusion of defendant and counsel from that hearing violated his Sixth Amendment right of confrontation.
  10. Whether convictions should be reversed because the prosecutor knowingly presented perjurious testimony.

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • The trial court improperly repeated only the first- and second-degree murder instructions while not repeating manslaughter and self-defense instructions requested by the jury.
  • The trial court erred by excluding David Jose's testimony about an alleged prior inconsistent statement by Nathan Magee when Magee was not confronted with that statement at trial.
  • The felon-in-possession conviction is erroneous because defendant's 1988 conviction for attempted possession of cocaine subjects him only to the three-year prohibition period, not the five-year period, under MCL 750.224f; MSA 28.421.
  • The trial court erred in admitting a judgment of probation related to the 1988 conviction (and asserts lack of proper limiting instruction).
  • MCL 750.224f; MSA 28.421(6) is unconstitutional under the Michigan Constitution right to keep and bear arms and under federal and state Ex Post Facto Clauses.
  • Defendant was held in custody more than 90 days before trial, requiring vacatur of convictions.
  • The trial court lacked jurisdiction over the felon-in-possession charge because no evidence of the prior conviction was presented at the preliminary examination.
  • Defendant and counsel were improperly excluded from a material-witness hearing, violating due process and the Sixth Amendment confrontation rights.
  • The prosecutor knowingly presented perjurious testimony and/or concealed impeaching material.

Respondent's (People's) Arguments

  • The killing was premeditated and unprovoked (as argued at trial).
  • The trial court did not abuse its discretion in limiting or sequencing testimony and in controlling the order of proof.
  • The 1988 attempted-possession conviction meets the statutory definition of a "specified felony" subjecting defendant to the five-year firearm prohibition.
  • The admission of the judgment of probation was either proper or the issue was not preserved for appeal.
  • The constitutionality challenges to the statute have been rejected by this Court in prior decisions.
  • Defendant waived the ninety-day trial-start rule by agreeing to the trial date; any error regarding preliminary-examination evidence as to the prior conviction was harmless because sufficient evidence at trial proved the conviction; exclusion from the material-witness hearing did not implicate substantial rights; and there is no record evidence the prosecutor knowingly presented perjured testimony.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Bonham, 182 Mich. App. 130, 134-135; 451 N.W.2d 530 (1989) Support for the proposition that a trial court's failure to repeat instructions not specifically requested by the jury is not an abuse of discretion. Used to uphold the trial court's decision to repeat only the murder instructions requested by the jury and not manslaughter/self-defense instructions.
People v. Darwall, 82 Mich. App. 652, 663; 267 N.W.2d 472 (1978) Support for the same instruction-related principle as Bonham. Relied on with Bonham to conclude no abuse of discretion occurred regarding supplemental instructions.
People v. Figgures, 451 Mich. 390, 398; 547 N.W.2d 673 (1996) Principle that the trial court controls the order in which parties will adduce proof. Quoted to justify the trial court's control over sequencing of proof and witness presentation.
Geders v. United States, 425 U.S. 80, 86; 96 S.Ct. 1330; 47 L.Ed.2d 592 (1976) Quoted in Figgures regarding trial court control over the order of proof. Referenced as part of the authority for the trial court's discretion over sequencing witnesses and proof.
Westphal v. American Honda Motor Co, Inc, 186 Mich. App. 68, 71; 463 N.W.2d 127 (1990) Interpreting MRE 613(b): witness need only be provided the opportunity to address the alleged inconsistency at some point during the trial; no particular sequence required. Quoted to explain MRE 613(b)'s flexibility while noting the traditional method remains preferred.
Wammock v. Celotex Corp, 793 F.2d 1518, 1522 (CA 11, 1986) Observation that FRE 613(b) (identical to MRE 613(b)) does not supplant the traditional method of confronting a witness before introduction of extrinsic evidence; traditional method preferred. Used to support the court's view that the traditional sequence is preferred and that failure to follow it risks exclusion of extrinsic evidence.
People v. Williams, 226 Mich. App. 568, 570; 576 N.W.2d 390 (1997) Statutory interpretation is reviewed de novo; courts seek legislative intent. Applied in analyzing MCL 750.224f; MSA 28.421(6) to determine whether attempted-possession is a "specified felony."
Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135; 545 N.W.2d 642 (1996) Principle that statutory interpretation aims to discover legislative intent. Used as authority for the approach to interpreting the firearm-statute's definitions.
Knight v. Limbert, 170 Mich. App. 410, 413; 427 N.W.2d 637 (1988) Support for statutory interpretation principles (plain and ordinary meaning; context). Referenced as part of the canon requiring words be given plain meaning unless defined.
People v. Hack, 219 Mich. App. 299, 305; 556 N.W.2d 187 (1996) Every word or phrase should be accorded its plain and ordinary meaning, taking into account context. Applied in construing subsections of MCL 750.224f; MSA 28.421 to conclude specified felony is a subcategory of felony.
People v. May field, 221 Mich. App. 656, 660; 562 N.W.2d 272 (1997) Preservation requirement: objection must be timely and specific to preserve error for appeal. Invoked to conclude defendant failed to preserve his claim regarding admission of the judgment of probation.
People v. Swint, 225 Mich. App. 353, 363, 375; 572 N.W.2d 666 (1997) Prior rejection by this Court of similar constitutional challenges to MCL 750.224f; MSA 28.421. Relied on to reject defendant's constitutional challenges to the firearm statute.
People v. Meadows, 175 Mich. App. 355, 359; 437 N.W.2d 405 (1989) Harmless-error principle where a preliminary-examination defect does not require dismissal if sufficient evidence was presented at trial. Applied to conclude lack of preliminary-exam evidence on the prior conviction was harmless because trial evidence supported the felon-in-possession conviction.
People v. Mallory, 421 Mich. 229, 247; 365 N.W.2d 673 (1984) A defendant has a right to be present at stages of trial where substantial rights might be adversely affected. Quoted to analyze whether exclusion from the material-witness hearing violated the defendant's right to be present; court found no deprivation of substantial rights.
People v. Gross, 118 Mich. App. 161, 164; 324 N.W.2d 557 (1982) Authority concerning exclusion of defendants from certain hearings. Used in conjunction with Mallory to support the conclusion that exclusion from the particular hearing was not error.
People v. Gearns, 457 Mich. 170, 186; 577 N.W.2d 422 (1998) (BRICKLEY, J.) The principal protection of the Sixth Amendment's Confrontation Clause is the right to conduct cross-examination; it applies when a witness provides substantive evidence bearing on the outcome. Applied to conclude no Confrontation Clause violation occurred because the material-witness hearing did not produce substantive evidence affecting the trial.
People v. Canter, 197 Mich. App. 550, 558; 496 N.W.2d 336 (1992) Standard for claims that a prosecutor knowingly presented perjured testimony. Referenced in framing defendant's perjury claim; court found no record evidence supporting such prosecutorial misconduct.
People v. McWhorter, 150 Mich. App. 826, 831-832; 389 N.W.2d 499 (1986) On disclosure and impeachment opportunities for prior inconsistent statements. Used to reject defendant's assertion that the prosecutor concealed prior statements; court found defense had ample opportunity to impeach.
People v. Thornton, 80 Mich. App. 746, 751-752; 265 N.W.2d 35 (1978) Authority on impeachment with prior inconsistent statements. Invoked to note the defense's opportunity to impeach witness credibility at trial.

Court's Reasoning and Analysis

The court addressed each of defendant's contentions in turn, applying the applicable legal rules and precedent as discussed in the opinion:

  • Jury Instructions: The jury specifically requested supplemental instructions regarding first- and second-degree murder; it made no similar request about manslaughter or self-defense. The court concluded it was not an abuse of discretion for the trial court to decline to repeat instructions that the jury did not request. (Citing People v. Bonham and People v. Darwall.)
  • Exclusion of Jose's Testimony/Prior Inconsistent Statement: The court acknowledged that under MRE 613(b) a witness need only be afforded an opportunity at some point during the trial to explain or deny an alleged inconsistent statement, and that the rule does not mandate a particular sequence. Nevertheless, the court explained that the traditional method—confronting the witness on cross-examination before offering extrinsic evidence—is still preferred. The trial court has authority to control the order of proof. Because the defense did not confront Magee with the alleged prior statement and Magee could not later be located to be given the opportunity to explain or deny the statement, exclusion of Jose's testimony was not an abuse of discretion. The court further noted that the trial court misapplied the rule in suggesting extrinsic evidence could not ever be offered before confronting the witness, but held that the ultimate exclusion was nonetheless within the court's discretion under the circumstances.
  • Statutory Interpretation of MCL 750.224f; MSA 28.421(6): The court reviewed statutory interpretation de novo and applied canons of construction to determine legislative intent. It concluded the statute establishes two overlapping periods: a three-year prohibition for those convicted of a "felony" (as defined by subsection 5) and a five-year prohibition for those convicted of a "specified felony" (subsection 6), where "specified felony" is a particularized subcategory of "felony." Subsection 5's definition of "felony" applies throughout the section; subsection 6 identifies additional requirements for a felony to be a "specified felony." Because defendant's 1988 attempted-possession conviction involved the unlawful possession of a controlled substance, it falls within the "specified felony" definition, and the five-year prohibition therefore applied.
  • Admission of Judgment of Probation: The court found defendant failed to preserve any objection to admission of the judgment of probation by not making a timely and specific objection during trial. In any event, because the court concluded the 1988 conviction was a specified felony, the defendant's underlying premise for challenging the exhibit was incorrect.
  • Constitutionality of the Statute: Defendant's constitutional challenges (Michigan right to keep and bear arms; federal and state Ex Post Facto Clauses) had been rejected by this Court in prior authority (People v. Swint), and the court applied that precedent to reject these claims.
  • Ninety-Day Custody Claim: Although the defendant was held more than 90 days before trial began, the record included a criminal scheduling order showing defendant agreed that trial would commence on April 23, 1996. The court concluded that by agreeing to the trial date defendant effectively waived the right to a trial within ninety days.
  • Preliminary-Examination Jurisdiction for Felon-in-Possession Charge: The court agreed there had been an error in that the prosecution did not present evidence at the preliminary examination regarding the 1988 conviction, but held the error harmless because sufficient evidence at trial supported the felon-in-possession conviction.
  • Attendance at Material-Witness Hearing / Due Process and Confrontation Claims: The hearing's subject matter was the witnesses' fear of testifying; no substantive evidence was taken from the witnesses at that hearing. The court concluded defendant's exclusion did not implicate his substantial rights (citing People v. Mallory and People v. Gross), and no Confrontation Clause violation occurred because the hearing did not produce testimonial evidence of substance bearing on the trial's outcome (citing People v. Gearns).
  • Prosecutorial Presentation of Perjured Testimony: The court found no evidence that the prosecutor knowingly presented perjured testimony or attempted to conceal contradictions. Although witness statements contained inconsistencies, defense counsel had opportunity to impeach witnesses with prior statements at trial.

Holding and Implications

Holding: The Court of Appeals affirmed defendant's convictions and sentences, and remanded the case for the imposition of a sentence on the felon-in-possession conviction.

Implications: The direct effect is that defendant's convictions and sentences remain intact, with the limited procedural relief that the trial court must impose a sentence for the felon-in-possession conviction (which had not been imposed). The opinion does not announce a new rule of law; it applies existing authority on jury instructions, MRE 613(b), statutory interpretation of MCL 750.224f; MSA 28.421, preservation of issues, harmless-error principles, and confrontation/due process jurisprudence to the facts of this case.

PEOPLE v. PARKER

PER CURIAM.

Defendant was charged with first-degree murder, MCL 750.316; MSA 28.548, possession of a firearm by a person convicted of a felony (hereinafter felon in possession), MCL 750.224f; MSA 28.241 (6), and possession of a firearm during the commission of a felony (hereinafter felony-firearm), MCL 750.227b; MSA 28.424 (2). Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, felon in possession, and felony-firearm. He was sentenced to consecutive terms of thirty to ninety years' imprisonment for the second-degree murder conviction and two years' imprisonment for the felony-firearm conviction. There is no indication in the record that defendant was sentenced for his felon in possession conviction. Defendant appeals as of right. We affirm, but remand for the imposition of a sentence for defendants felon in possession conviction.

Defendant was charged in connection with the shooting death of Michael Hadley. In the early evening hours of May 15, 1995, defendant and Hadley got into a heated argument in the front yard of a home located in Benton Harbor. Defendant ultimately left the scene and walked across the street. Sometime later, defendant approached Hadley from behind as the decedent stood talking to his cousin. From close range, defendant fired four bullets into Hadley's head. Hadley died at the scene. The prosecution argued at trial that the killing was premeditated and unprovoked, whereas defendant argued that he shot Hadley in self-defense after Hadley had threatened defendant with a handgun Hadley had taken from his waistband.

Defendant first contends that the trial court erred in repeating for the jury its instructions regarding first- and second-degree murder, but failing to repeat the court's instructions regarding manslaughter and self-defense. We disagree. While the jury specifically requested supplemental instructions regarding first- and second-degree murder., no similar request was made with regard to the manslaughter and self-defense instructions. It is not an abuse of discretion for a trial court to fail to repeat instructions addressing areas not covered by a jury's specific request. People v. Bonham, 182 Mich. App. 130, 134-135; 451 N.W.2d 530 (1989); People v. Darwall, 82 Mich. App. 652, 663; 267 N.W.2d 472 (1978).

Defendant next claims that the trial court erred in not allowing David Jose to testify about an alleged prior inconsistent statement made by Nathan Magee, a witness to the shooting, who was called to testify on behalf of the prosecution. Magee testified that after defendant shot Hadley, defendant removed a nine-millimeter handgun from underneath Hadley's shirt. During cross-examination, Magee acknowledged that on the day after the shooting the police found a black ten-millimeter handgun underneath a mattress in Magee's home. However, he denied knowing either how the gun got there or who it belonged to. Magee also denied knowing Jose. We note that although defense counsel asked Magee on cross-examination if he knew Jose, counsel never directly questioned Magee about the alleged prior statement.

When the issue of Jose's testimony was raised after Magee had been cross-examined, defense counsel represented to the court that Jose would testify that Magee had told him, while the two were in the Berrien County Jail, that Hadley possessed a ten-millimeter handgun and that the gun that was found at Magee's home the day after the shooting was Hadley's gun. The trial court indicated that defendant would not be allowed to call Jose until he had first asked Magee about the alleged statement. After attempts to locate Magee to have him reappear at the trial proved unsuccessful, the trial court ruled that Jose could not be called because defendant had failed to satisfy the foundational requirements for the introduction of Jose's testimony. To the extent that the trial court's ruling was based on the assumption that Jose's testimony was not admissible until and unless Magee was first given the opportunity to explain or deny the alleged prior statement, we conclude that the trial court was mistaken. Nevertheless, the ultimate exclusion of Jose's testimony does not evidence an abuse of discretion.

The trial court maintains control of ""the order in which parties will adduce proof." People v. Figgures, 451 Mich. 390, 398; 547 N.W.2d 673 (1996), quoting Geders v. United States, 425 U.S. 80, 86; 96 S.Ct. 1330; 47 L.Ed.2d 592 (1976). Traditionally, extrinsic evidence of a prior inconsistent statement made by a witness could not be offered until and unless the witness was presented with the inconsistent statement. The traditional approach was modified somewhat by MRE 613 (b), which provides that the witness need only be provided with the opportunity to address the alleged inconsistency at some point during the trial. "The rule contains no particular sequence or timing so long as the witness has the opportunity to explain the statement." Westphal v. American Honda Motor Co, Inc, 186 Mich. App. 68, 71; 463 N.W.2d 127 (1990).

MRE 613(b) reads, in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

However, while under MRE 613 (b) it is no longer necessary to follow the traditional foundational requirements, there is nothing in the language of the subrule that indicates that a trial court must admit extrinsic evidence of a prior inconsistent statement before the statement is presented to the witness. In fact, although MRE 613 (b) allows for more flexibility, the traditional method of presenting the alleged inconsistent statement to the witness on cross-examination is still preferred. See Wammock v. Celotex Corp, 793 F.2d 1518, 1522 (CA 11, 1986) (observing that FRE 613(b), which is identical to MRE 613(b), "does not supplant the traditional method of confronting a witness with his inconsistent statement prior to its introduction into evidence as the preferred method of proceeding"). In circumstances like those present here, where the prior statement was not "given under oath subject to the penalty of perjury, "MRE 801(d)(1)(A), the traditional method helps to assure that the prior statement will not be incorrectly interpreted by a jury as substantive evidence.

If the proponent of the extrinsic evidence does not confront the witness on cross-examination with the prior statement, we believe the best course of action would be for the proponent to excuse the witness subject to recall. This procedure was not followed in the case at bar.

The record makes clear that defendant knew about the prior inconsistent statement before Magee was called to testify. Even though Magee did not have to be confronted with the prior statement before Jose could be called to testify, we conclude that under the circumstances the trial court did not abuse its discretion in ruling that the traditional sequence would be followed. Further, because Magee could not subsequently be located and consequently would not be given the opportunity to explain the prior statement, the exclusion of Jose's testimony altogether was not an abuse of discretion. See Wammock, supra at 1522 (observing that "where the proponent of the testimony fails to [follow the traditional method]. . . . the proponent runs the risk that the court will properly exercise its discretion to not allow the admission of the prior statement").

Furthermore, defendant has not established that the "interests of justice otherwise require" us to conclude that the trial court abused its discretion.

Defendant next contends that he was erroneously convicted of felon in possession because, under the terms of MCL 750.224f; MSA 28.421(6), he was prevented from carrying a firearm for only three years after his 1988 conviction of attempted possession of cocaine, not five years as the trial court had concluded. MCL 750.224f; MSA 28.421 (6) reads in pertinent part:

(1) Except as provided as subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:

* * *

(2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or
distribute a firearm in this state until all of the following circumstances exists:
(a) The expiration of 5 years after all of the following circumstances exist:

* * *

(5) As used in this section, "felony" means a violation of a law of this state, or of another state, or of the United States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law
(6) As used in subsection (2), "specified felony" means a felony in which 1 or more of the following circumstances exist:

* * *

(ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.

Defendant contends that because subsection 6 (ii) does not include a reference to attempted possession of a controlled substance, his 1988 conviction does not meet the definition of a "specified felony." Rather, defendant argues that because subsection 5 specifically defines "felony" as "an attempt to violate" the laws of Michigan, his 1988 conviction is classified as a felony under the statutory scheme. Defendant claims, therefore, that he is subject to the three-year statutory limit imposed by subsection I and not the five-year limit imposed by subsection 2(a).

Defendant's argument is predicated on an erroneous reading of MCL 750.224f; MSA 28.421(6). "Statutory interpretation is a question of law reviewed de novo on appeal." People v. Williams, 226 Mich. App. 568, 570; 576 N.W.2d 390 (1997). The overriding goal guiding judicial interpretation of statutes is to discover and give effect to legislative intent. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135; 545 N.W.2d 642 (1996); Williams, supra at 570; Knight v. Limbert, 170 Mich. App. 410, 413; 427 N.W.2d 637 (1988). "Unless defined in the statute, every word or phrase therein should be accorded its plain and ordinary meaning, taking into account the context in which the words are used." People v. Hack, 219 Mich. App. 299, 305; 556 N.W.2d 187 (1996).

MCL 750.224f; MSA 28.421(6) establishes two separate periods during which it is unlawful for a convicted felon to carry a firearm. The first period lasts for three years, and it applies to individuals convicted of a felony, as that term is defined by the statute. The second period lasts for five years, and it applies to individuals convicted of a specified felony, as that phrase is defined by the statute. The problem with defendants reading of the statute is that it is based on an erroneous assumption that the categories "felony" and "specified felony" exist independently of each other. In plain and unambiguous language, the statute indicates that a specified felony is merely a particularized subcategory of the category felony. Subsection 5 clearly indicates that the definition of felony applies throughout the statute. MCL 750.224f(5); MSA 28.421(6)(5) ("As used in this section. . . . "). Accordingly, the definition of felony provided in subsection 5 also applies to the definition of specified felony found in subsection 6. Subsection 6 simply outlines what additional requirements must be met in order for a felony to also be a specified felony. In other words, subsections 5 and 6 are overlapping categories, not discrete classifications, with the specified felony category being entirely subsumed within the felony category. Thus, if an individual is convicted of the attempted violation of law, and that attempt involved "the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance," then such an individual has been convicted of a specified felony under MCL 750.224f; MSA 28.421 (6). Because defendants 1998 conviction of attempted possession of cocaine meets these criteria, he is subject to the five-year limit.

We also reject two related arguments raised by defendant. First, defendant contends that the trial court erred in admitting into evidence a judgment of probation addressing defendants 1988 conviction. Initially, we note that defendant failed to preserve the issue for appeal by raiding a timely and specific objection to the exhibit when it was offered by the prosecution at the close of its case-in-chief or to the lack of any limiting instruction in the trial courts final jury instructions. People v. May field, 221 Mich. App. 656, 660; 562 N.W.2d 272 (1997). In any event, we conclude that defendants argument lacks merit given that it is predicated on his erroneous conclusion that the 1988 conviction is not a specified felony. Second, defendant argues that MCL 750.224f MSA 28.421 (6) is unconstitutional in that it (1) infringes on his right to keep and bear arms under the Michigan Constitution and (2) violates the Ex Post Facto Clauses of the federal and state constitutions. Both of these arguments were rejected by this Court in People v. Swint, 225 Mich. App. 353, 363, 375; 572 N.W.2d 666 (1997).

Const 1963, art 1, § 6 reads: "Every person has a right to keep and bear arms for the defense of himself and the state."

U.S. Const, art I, § 10 reads in pertinent part: "No State shall . . . pass any . . . ex post facto Law. . . . Const 1963, art 1, § 10 reads in pertinent part: "No . . . ex post facto law . . . shall be enacted."

Defendant next argues that his convictions must be vacated because he was held in custody in excess of ninety days before commencement of his trial. The ninety-day limit is established by both Const 1963, art 1, § 15 and MCR 6.106(B)(3). While we agree that defendant was held beyond the ninety-day time limit, we find that vacation of his convictions is unwarranted.

Defendant was arraigned in the district court on January 16, 1996. At that time defendant was ordered to be held without bond. His jury trial began on April 23, 1996, well in excess of the ninety-day limit.

MCR 6.106(B) states in pertinent part:

(1) The court may deny pretrial release to

(a) a defendant charged with

(i) murder or treason . . .

* * *

(3) If the court determines as provided in subrule (B)(1) that the defendant may not be released, the court must order the defendant held in custody for a period not to exceed 90 days after the date of the order, excluding delays attributable to the defense, within which trial must begin or the court must immediately schedule a hearing and set the amount of bail.

The lower court record includes a criminal scheduling order that indicates that defendant agreed that the trial would commence on April 23, 1996. The trial began as scheduled. The defendant, having agreed to the April 23 date, effectively waived his right to proceed to trial within ninety days. Hence, we conclude defendant's argument to be without merit.

Defendant also argues that the trial court lacked jurisdiction with regard to the charge of felon in possession because the prosecution presented no evidence at the preliminary examination regarding defendants 1988 conviction. Although we agree that an error was made, we conclude that it was harmless given that sufficient evidence was adduced at trial to convict defendant of the charge. People v. Meadows, 175 Mich. App. 355, 359; 437 N.W.2d 405 (1989).

Defendant next claims he was denied his right to due process as guaranteed by the Fourteenth Amendment of the federal constitution when he and his counsel were not allowed to be present at a hearing concerning the prosecutions petition to hold two individuals as material witnesses. We disagree. "A defendant has a right to be present during . . . any . . . stage of trial where the defendant's substantial rights might be adversely affected." People v. Mallory, 421 Mich. 229, 247; 365 N.W.2d 673 (1984). The subject matter of the hearing at issue was the witnesses fear of testifying against defendant. No other matters were discussed, and no substantive evidence was taken from the witnesses. Therefore, defendants exclusion from the hearing was not error. Id.; People v. Gross, 118 Mich. App. 161, 164; 324 N.W.2d 557 (1982).

U.S. Const, Am XIV reads in pertinent part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ."

Defendant also claims that his Sixth Amendment right to confront the witnesses against him was violated when he was not afforded the opportunity to cross-examine the two material witnesses at the hearing. "[T]he principal protection provided by the [Sixth Amendments] Confrontation Clause to a criminal defendant is the right to conduct cross-examination." People v. Gearns, 457 Mich. 170, 186; 577 N.W.2d 422 (1998) (BRICKLEY, J.). A criminal defendant's right to cross-examine, however, comes into play only when a witness has provided evidence of substance that bears on the outcome of the criminal trial. Id. at 187. Again, that was not the case with regard to the matters discussed at the hearing. Therefore, no violation of defendant's Confrontation Clause rights occurred. As for defendant's contention that the prosecution failed to disclose any consideration or inducements offered to the two witnesses, there is nothing in the record that supports this allegation.

U.S. Const, Am VI reads in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ."

Finally, defendant claims that his convictions should be reversed because the prosecutor knowingly presented perjurious testimony. See People v. Canter, 197 Mich. App. 550, 558; 496 N.W.2d 336 (1992). Again, we conclude that defendant's claim is not supported by the record. While it is true that some of the details of the testimony given by the prosecutor's res gestae witnesses did conflict, there is no evidence that the prosecutor attempted to conceal these contradictions. Further, while the testimony of some of the witnesses conflicted with statements they had given to the police immediately after the shooting, there is no evidence that the prosecutor attempted to keep the contents of those previous statements from defendant. See People v. McWhorter, 150 Mich. App. 826, 831-832; 389 N.W.2d 499 (1986). Indeed, defense counsel was afforded ample opportunity to impeach the witnesses' credibility at trial with the prior statements. See People v. Thornton, 80 Mich. App. 746, 751-752; 265 N.W.2d 35 (1978).

Defendant's convictions and sentences are affirmed. We remand for imposition of a sentence for the felon in possession conviction. We do not retain jurisdiction.

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PEOPLE v. PARKER
(Jul 14, 1998)