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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOEY DYER, Defendant-Appellant.

UNPUBLISHED May 16, 2006

No. 258565 Wayne Circuit Court LC No. 04-003771-01

Before: Murphy, P.J., and O'Connell and Murray, JJ. PER CURIAM. Defendant appeals as of right his jury conviction for first degree, premeditated murder, MCL 750.316(1)(a), two counts of assault with intent to murder, MCL 750.83, felon in possession of a firearm, MCL 750.224f, and felony firearm, MCL 750.227b. The trial court sentenced defendant to concurrent terms of life imprisonment on the murder charge, 210 months to 60 years on the assault charges, and 18 months to 5 years on the felony firearm charge, all of which he will serve after he serves his mandatory consecutive sentence of 2 years' imprisonment for felon in possession. We affirm. On the night of the shooting, defendant and his three victims decided to drive to a club for a night out. Defendant rode in the rear passenger-side seat of the car. When the group arrived near the club, defendant insisted that the driver park his car on a dark street near an open field. Defendant then drew his pistol, chambered a new round, and fatally shot the driver under his right ear as the driver turned off the car. Defendant then turned and shot at, but missed, the ducking front-seat passenger. When he turned the pistol on the other back-seat passenger, the passenger struggled with defendant and the pistol discharged again, hitting the back-seat passenger in the shoulder. During the scuffle over the pistol, the front-seat passenger made his escape. Defendant opened his door, and the back-seat passenger managed to wrestle defendant out the door and escape. Defendant continued to shoot at the fleeing victims, each of whom summoned assistance. Defendant fled the state and established a relationship with a major drug dealer in Atlanta. Defendant and his new mentor relocated to Florida, where they were picked up with false identification by Florida police. The drug dealer and his girlfriend testified that defendant described the Michigan shooting to each of them, and defendant also admitted to a Florida detective that he "did" the instant offenses.

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On appeal, defendant first argues that the trial court erred in allowing the prosecutor to admit statements made by the driver weeks before the shooting. Defendant argues that the statements violate his right to confrontation as delineated by the United States Supreme Court in Crawford v Washington, 541 US 36, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). We disagree. The statements at issue involved one of the many subplots that unfolded in defendant's four-day trial. The trial court introduced the statements to suggest that a man named Avis Kassab arranged the driver's murder to prevent the driver from testifying about a murder Kassab committed in the driver's presence. The driver's statements indicate that he took a bribe from Kassab's brother, but Kassab later failed to pay off the balance of the bribe, so the driver decided to breach the agreement and testify against Kassab. Because the driver's own statements implicated him for accepting a bribe to commit perjury, this hearsay falls squarely within the exception for statements against a declarant's penal interest. MRE 804(b)(3). Nevertheless, defendant does not challenge the technical exceptions to hearsay, but exclusively argues that the evidence violated his right to confront the witnesses against him. In this regard, defendant fails to distinguish People v Jones, ___ Mich App ___, slip op p 3-4; ___ NW2d ___ (Docket No. 258571, issued March 7, 2006), in which our Court held a defendant does not have a right under Crawford to confront a witness whose absence the defendant has wrongfully procured. Because the overwhelming evidence indicated that defendant wrongfully procured the driver's absence by unlawfully killing him, defendant fails to establish that the evidence violated his constitutional right to confront the driver. Jones, supra; see also Crawford, supra at 62. Defendant next argues that the prosecutor's cross examination of defendant also violated his right to confrontation by injecting unsubstantiated innuendo into the trial. Assuming without deciding that a prosecutor's question, even one loaded with innuendo, can deprive a defendant of a right to confrontation, defendant fails to demonstrate any misconduct requiring reversal. Regarding the innuendo injected by the prosecutor's impeachment of defendant with his prior inconsistent statements, "extrinsic evidence may not be used to impeach a witness on a collateral matter . . . even if the extrinsic evidence constitutes a prior inconsistent statement of the witness, otherwise admissible under MRE 613(b)." People v Rosen, 136 Mich App 745, 758; 358 NW2d 584 (1984). Therefore, it goes without saying that, "the examiner does not have a duty in every case to introduce the factual predicate for his question." United States v Harris, 542 F2d 1283, 1306-1307 (CA 7, 1976). This includes a cross examination "where evidence is available but where counsel has no present intention of introducing it or where counsel has no factual foundation but a reasonable suspicion that the circumstances might be true." Id. This might occur because a criminal defendant is the source of the collateral information, and the prosecutor has no inclination to call him in the prosecutor's case in chief. See Hazel v United States, 319 A2d 136, 140 (DC 1974). The general rule is that innuendo in a cross examination question is not misconduct unless the prosecutor lacks a legitimate factual basis for the question, or if a legal (as opposed to a procedural) restriction or other factual circumstance precludes the prosecutor from introducing the factual basis for the question. See 6 Wigmore, Evidence (Chadbourn rev),

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