PEOPLE v BYNUM
Docket No. 147261
Supreme Court of Michigan
July 11, 2014
496 MICH 610
Argued April 2, 2014 (Calendar No. 3).
If the prosecution presents evidence to show that the crime at issue was gang-related, expert testimony about gangs, gang membership, and gang culture may be admitted as relevant under
- With regard to the admission of expert witness testimony,
MRE 702 requires the trial court to determine that the expert testimony will assist the trier of fact to understand the evidence or determine a fact in issue. If the average juror does not need that aid, the proffered testimony is inadmissible because it merely deals with a proposition that is not beyond the ken of common knowledge. In addition,MRE 402 provides that evidence that is not relevant is inadmissible. Finally,MRE 404(a) provides that evidence of a person‘s character or character traits is not admissible to prove action in conformity with that character or those traits on a particular occasion. MRE 402 andMRE 702 require a trial court to act as a gatekeeper of gang-related expert testimony and determine whether that testimony is relevant and will assist the trier of fact to understand the evidence. Evidence regarding a defendant‘s gang membership is relevant and can assist the trier of fact when there is factual evidence that the crime at issue is gang-related. Expert testimony about gang membership is ordinarily of little value to a fact-finder unless there is a connection between gang membership and the crime at issue. Identifying whether a crime is gang-related, however, might require an expert to establish the significance of seemingly innocuous matters (such as clothing, symbolism, and tattoos) as features of gang membership and gang involvement. Expert testimony that the crime was committed in rival gang territory might also be necessary to show why the defendant‘s presence in that area was motivated by his gang affiliation. That is, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge, and the relevance of gang-related expert testimony might be established by factual evidence that at first glance doesnot indicate gang motivations, but provides the gang-crime connection when coupled with expert testimony. In the context of gang-related violence, expert testimony regarding general characteristics of gang culture may be admitted for an appropriate purpose, such as helping to elucidate a gang member‘s motive for committing a gang-related crime. The testimony must otherwise meet the rules of evidence before it can be admitted, however, and MRE 404(a) limits the extent to which a witness may opine about a defendant‘s gang membership. An expert may not testify that on a particular occasion a gang member acted in conformity with character traits commonly associated with gang members because that testimony would attempt to prove a defendant‘s conduct simply because he or she is a gang member.- Sutherland testified that the shootings occurred on disputed gang territory and connected Bynum and the other shooters to the Boardman Boys. The location of the crimes, when combined with evidence that multiple gang members were involved in the crimes, provided sufficient factual evidence to conclude that expert testimony regarding gangs, gang membership, and gang culture would be relevant and helpful to the jury in this case.
- The prosecution argued that Sutherland‘s testimony was proper evidence of motive. Even if expert testimony about gang culture may be introduced, however,
MRE 404(a) precludes the expert from providing evidence of a gang member‘s character to prove action in conformity with gang membership. A gang expert may testify that a gang protects its turf through violence as an explanation of why a gang member might be willing to commit apparent random acts of violence against people whom the gang member believes pose a threat to that turf. Sutherland did so in discussing aspects of gang culture generally, and that testimony was proper underMRE 404(a) . Sutherland also opined, however, that Bynum acted in conformity with his gang membership with regard to the specific crimes in question. In particular, Sutherland used Bynum‘s gang membership and the character traits associated with that membership to describe what he saw on a surveillance video that recorded the incident. In so doing, his testimony suggested Bynum‘s guilt in the underlying crime. In contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland exceeded the limitations of expert testimony when he opined that he believed that Bynum and others went to the party store waiting for someone to give the Boardman Boys the chance to protect their turf. That testimony was an opinion that Bynum acted in conformity with the character traits commonly associated with gang members on a particular occasion, in violation ofMRE 404(a) . Although there was overwhelming evidence that Bynum participated in the shooting that led to the victim‘s death and his self-defense theory was not particularly persuasive, the evidence of Bynum‘s premeditation was not overwhelming. As a result, it is likely that, had the jury not heard the propensity evidence or been told by an expert that Bynum and his friends went to the store with the intent to shoot someone, it would have found that the prosecution had not proved beyond a reasonable doubt that Bynum premeditated. Moreover, Sutherland‘s testimony further weakened Bynum‘s self-defense claim by suggesting that Bynum‘s propensity for violence meant that he intended to shoot someone at the party store on the night of the shooting. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings because it inevitably led the jury to find on the basis of his membership in a gang and the asserted character trait that he was therefore prone to violence that Bynum premeditated the murder. Therefore, Bynum is entitled to relief. - The prosecution argued that any evidentiary error would not have affected the jury‘s rejection of Bynum‘s self-defense claim, only its finding of premeditation, and entry of a guilty verdict on the lesser included offense of second-degree murder, which does not require a finding of premeditation, was appropriate as relief in this case. The prejudice regarding premeditation could not be easily separated from the prejudice regarding self-defense in light of the evidence presented, however, and Bynum was entitled to a new trial.
Result of the Court of Appeals’ judgment affirmed and case remanded.
Chief Justice YOUNG, dissenting, agreed that Sutherland‘s testimony was generally admissible, that his specific statement opining on the issue of Bynum‘s premeditation was inadmissible, and that the prejudice resulting from the impermissible statement regarding Bynum‘s state of mind warranted relief with respect to his first-degree-murder conviction. He disagreed, however, that the prejudice resulting from the improper testimony was inseparable from Bynum‘s unpersuasive claim of self-defense. Notwithstanding Sutherland‘s inadmissible premeditation testimony, Bynum‘s self-defense claim would have failed anyway because any belief on his part that deadly force was necessary was objectively unreasonable in light of the other evidence presented. Accordingly, Chief Justice YOUNG disagreed that defendant was entitled to a new trial and would instead have remanded the case for entry of a conviction on the lesser included offense of second-degree murder.
If the prosecution presents evidence to show that the crime at issue was gang-related, expert testimony about gangs, gang membership, and gang culture may be admitted as relevant under
MRE 402 and of assistance to the trier of fact to understand the evidence or determine a fact in issue underMRE 702 ; the prosecution may use an expert to identify the significance of evidence (such as symbols, clothing, or tattoos) that by itself would not be understood by the average juror to be connected with gangs or gang-related violence;MRE 404(a) , however, precludes testimony that is specifically used to show that on a particular occasion, a gang member acted in conformity with character traits commonly associated with gang members.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, David E. Gilbert, Prosecuting Attorney, and Marc Crotteau, Assistant Prosecuting Attorney, for the people.
Michael A. Faraone, PC (by Michael A. Faraone), for defendant.
Amici Curiae:
Bradley R. Hall for the Criminal Defense Attorneys of Michigan.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Linus Banghart-Linn, Assistant Attorney General, for the Attorney General.
KELLY, J. Gang-related violence pervades our country, including Michigan, and is not likely to abate anytime soon.1 In trials of crimes involving gang-related vio-
We hold that if the prosecution presents fact evidence to show that the crime at issue is gang-related, expert testimony about gangs, gang membership, and gang culture may be admitted as relevant under
Nevertheless, there are limits to what an expert may opine, even when there is an appropriate foundation that the crime at issue is gang-related. Accordingly, we also hold that
The expert witness in this case exceeded these limitations when he provided his opinion that defendant committed the crimes at issue because he acted in conformity with his gang membership. Specifically, the expert witness testified that because the defendant was a gang member, he was “posted up at” the scene of the crime “with a purpose,” namely, to give him and his fellow gang members “the chance to shoot” at someone and defend the gang‘s turf. This improper character testimony affected both the element of premeditation in the first-degree-murder charge against defendant and the self-defense claim that defendant raised with respect to both first-degree murder and the lesser included offense of second-degree-murder. We therefore affirm the result of the Court of Appeals and remand this case to the Calhoun Circuit Court for a new trial.
I. FACTS AND PROCEDURAL HISTORY
On the evening of August 28, 2010, defendant, Levon Lee Bynum, was among a crowd of about 10 to 15 people gathered outside a party store in Battle Creek. Bynum and some of the other crowd members are alleged to be members of the Boardman Boys gang, the “territory” or “turf” of which borders the party store. Shortly before midnight, a Cadillac DeVille containing four people—Larry Carter, Josh Mitchell, Brandon Davis, and Darese Smith—arrived at the party store‘s parking lot. According to Mitchell, they were there to purchase Swisher Sweets and vodka so they could continue their all-day consumption of alcohol and marijuana, which they had begun at “bird-chirpin[‘] time” that morning. The crowd directed its attention toward the parking lot‘s newcomers, and Carter and Bynum exchanged words,
Battle Creek police identified Bynum and the other shooters from the surveillance video of the party store‘s parking lot. During police questioning, Bynum denied knowing Carter and the other victims2 and initially claimed that he had fired multiple times in the air to scare them off because he believed they posed a threat to his safety. However, Bynum later admitted that it was possible that he had hit Carter, stating that “[b]ullets don‘t have names.”3 At all times, however, Bynum stated that he acted in self-defense, observing that he carried a gun only because “it‘s not safe to walk nowhere. . . .”
Bynum was arrested and bound over for trial in the Calhoun Circuit Court on charges of first-degree murder for the death of Carter,4 two counts of assault with intent to murder for the shootings of Mitchell and
Sutherland was proffered as an expert witness on gangs, gang membership, and gang culture, including his particular expertise about Battle Creek gangs. Before Sutherland‘s testimony, the prosecution filed a motion in limine to allow Sutherland to present a PowerPoint presentation about gangs and gang culture that connected Bynum to the Boardman Boys gang and showed how Battle Creek gangs, including the Boardman Boys, appropriated symbolism from nationally organized gangs like the Bloods and the Crips.8 Defense counsel opposed the motion in limine and asserted in his written response that the presentation‘s “potential prejudicial impact far and away outweighs whatever trivial probative value it may possess.” Moreover, counsel claimed that the prosecution did not need the presentation to “introduce evidence via testimony of gang association and/or rivalries. . . .” The court took the matter under advisement.
The court allowed Sutherland‘s testimony and PowerPoint presentations to proceed on the basis that the evidence was relevant to prove Bynum‘s motive for shooting Carter, Mitchell, and Davis.9 However, it cautioned that it did not want the proposed testimony to “contain evidence simply relating to . . . the fact that [Bynum] is quote/unquote a bad person by virtue of the commission of . . . wanton offenses as part of what a gang does.” As a result, the court “restrict[ed] the presentation to a question and response format so that [defense counsel] can object to particular issues if he finds the basis to do so. . . .”
In his testimony, Sutherland defined a gang as “a group of three or more individuals” who “collectively
One of the key principles of gang culture, Sutherland explained, is that a gang enforces respect on its turf through power and fear. Gang members take “every opportunity they can to show how powerful they are.” Moreover, the Boardman Boys were engaged in an ongoing turf war with a rival gang, and the party store where these crimes occurred sits on the border between the two gangs’ turfs.
Sutherland also discussed the different levels of gang membership: hardcore members (who are the leaders of the gang), associates (who are in the gang and “trying to increase their status“), and fringe members (who “want to be seen with the gang” but do not want to commit the gang‘s crimes). Bynum was a “hardcore member,” according to Sutherland, “because of what he‘s done [and] what people have told us he‘s done.” In particular, Bynum and other hardcore members “are the ones in the police reports” and are identified by people in the neighborhood as “committing the most violent crime[s] out of all the members in this gang.”
Finally, Sutherland turned to the events at the party store, explaining that if Bynum and other members of the gang had not reacted to what they had perceived was a sign of Carter‘s disrespect, both the individual members who were slighted and the gang itself would
[W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn‘t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us—give me [i.e., Bynum] a reason to—to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.”
Defense counsel did not specifically object to any of this testimony after the initial, general objection to Sutherland‘s testimony.10
The jury convicted Bynum as charged. Newly appointed appellate counsel moved for a new trial in the circuit court, citing the ineffective assistance of trial counsel for failing to object to Sutherland‘s testimony as improper propensity evidence.11 The court rejected the ineffective-assistance claim because it was satisfied that trial counsel‘s objections had preserved the claimed error in Sutherland‘s testimony. The court also held that the expert witness testimony was appropriate.
The Court of Appeals reversed Bynum‘s convictions in a split, unpublished opinion per curiam.12 Contrary to the circuit court‘s judgment, the majority explained, in relevant part, that trial counsel had not objected to much of Sutherland‘s testimony. Nevertheless, even under the plain-error standard for unpreserved claims
The dissenting judge determined that the evidence about gang culture and the Boardman Boys “does not . . . become objectionable ‘propensity’ evidence simply because the expert opined further that defendant was not only a ‘member’ of the Boardman Boys, but a ‘hardcore member.’ ”15 Moreover, the dissenting judge concluded that evidence of gang membership is relevant if it relates to motive and that Sutherland “did not opine on defendant‘s claim of self-defense, indicate whether defendant‘s self-defense claim was believable, or state that defendant actually shot the victim with premeditation.”16
We granted the prosecution‘s application for leave to appeal,17 limited to the following issues:
whether the police officer‘s expert testimony regarding gangs and gang membership—especially the testimony as to the defendant‘s gang, the defendant‘s role in his gang, and premeditation—was more prejudicial than probative under MRE 403 ;- the extent to which the profiling factors listed in People v Murray, 234 Mich App 46, 56-58 [593 NW2d 690] (1999), apply to the admissibility of this expert testimony;
- whether any error by the trial court with respect to this testimony was preserved; and
- whether, if there was any such error by the trial court, the Court of Appeals correctly held that the defendant was entitled to a new trial or whether any error was harmless.18
II. STANDARD OF REVIEW
The decision to admit evidence is within a trial court‘s discretion, which is reviewed for an abuse of that discretion.19 Preliminary questions of law, such as whether a rule of evidence or statute precludes the admission of particular evidence, are reviewed de novo, and it is an abuse of discretion to admit evidence that is inadmissible as a matter of law.20
If a defendant has failed to preserve a claim of evidentiary error, relief may be granted only upon a showing that a plain error affected the defendant‘s substantial rights and that the defendant is actually innocent or the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”21
III. ANALYSIS
The Michigan Rules of Evidence provide the appropriate framework for reviewing the Court of Appeals’
Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to
rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted[,] . . . evidence of a trait of character for aggression of the accused offered by the prosecution[.]
Application of these and other rules of evidence to expert testimony about gangs, gang membership, and gang culture has not been developed in our caselaw, although gang activity and gang culture have increasingly been the focus of federal, state, and local law enforcement agencies.26 Indeed, the sharing of information about gang activity and gang culture across jurisdictions has created new expertise and new understanding to combat gang-related violence. Prosecutors are using that new expertise to help juries understand the context of the crimes that they are prosecuting and, as a result, it is increasingly important for us to explain how this newly developed expertise fits within our existing rules of evidence.
As a threshold matter, applying
Sometimes, however, identifying whether a crime is gang-related requires an expert to establish the significance of seemingly innocuous matters—such as clothing, symbolism, and tattoos—as features of gang membership and gang involvement. At other times, “an expert‘s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant‘s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”29 In other words, understanding the connection between the crime and gang activity is sometimes beyond the ken of common knowledge. Accordingly, the relevance of gang-related expert testimony “may be satisfied by fact evidence that, at first glance, may not indicate gang motivations, but when coupled with expert testimony, provides the gang-crime connection.”30
In the context of gang-related violence, we conclude that expert testimony may be admitted regarding general characteristics of gang culture for an appropriate
IV. APPLICATION
A. PRESERVATION
Before examining the merits of the claimed evidentiary errors at issue in this appeal, one threshold question we must answer is whether Bynum preserved these claims of evidentiary error. As previously noted, when the court revisited the prosecutor‘s motion to introduce Sutherland‘s PowerPoint presentation during trial, defense counsel stated that he was “still objecting to the use of essentially most of this testimony on the basis that it is more prejudicial than probative” and that “[i]t‘s not particularly relevant as it relates to
The court allowed the presentation to proceed but restricted it “to a question and response format so that [defense counsel] can object to particular issues if he finds the basis to do so . . . .”32 While the scope of Bynum‘s objection to Sutherland‘s testimony seemed to change from one statement to the next, it is clear that counsel focused on the prejudicial effect of the PowerPoint presentation‘s being shown to the jury. At most, counsel‘s statement that he was objecting “to the use of essentially most of this testimony” because “[i]t‘s not particularly relevant” is akin to a general objection to the admissibility of any mention of gangs or gang-related violence. As a result, we conclude, as did the Court of Appeals, that a general objection to the relevance of Sutherland‘s expert testimony is preserved. However, because the court envisioned that the question-and-answer format of Sutherland‘s testimony would provide defense counsel with an opportunity to
To summarize: We will apply our standard of review for preserved error to the threshold inquiry regarding whether any expert testimony about gangs is admissible in the first instance under
B. FACT EVIDENCE REGARDING GANG-RELATED VIOLENCE
As stated, in applying
Sutherland testified that the shootings occurred on disputed gang territory, and “an expert‘s testimony that the crime was committed in rival gang territory may be necessary to show why the defendant‘s presence in that area, a fact established by other evidence, was motivated by his gang affiliation.”33 Moreover, fact evidence connected Bynum and the other shooters to the Boardman Boys: Sutherland testified that Bynum has a tattoo
C. INADMISSIBLE EXPERT TESTIMONY UNDER MRE 404(a)
The prosecution argues that Sutherland‘s testimony was proper evidence of motive because “[i]n a prosecution for murder proof of motive, while not essential, is always relevant.”34 Even if expert testimony about gang culture may be introduced, however,
Nevertheless, Sutherland veered into objectionable territory when he opined that Bynum had acted in conformity with his gang membership with regard to
[W]hen I see that incident, when I watch the video, they [the gang members, including Bynum] are all posted up at the store with a purpose. When they went to that store that day, they didn‘t know who they were going to beat up or shoot, but they went up there waiting for someone to give them the chance. “Make us--give me [i.e., Bynum] a reason to--to shoot [you], to fight you, to show how tough we are, the Boardman Boys, on our turf.”
In contrast to his otherwise admissible general testimony about aspects of gang culture, Sutherland‘s testimony interpreting the video evidence specifically connected those character traits to Bynum‘s conduct in a particular circumstance. Such testimony impermissibly attempted to “prov[e] action in conformity” with character traits common to all gang members on a particular occasion. As a result, this testimony violated
Therefore, we agree with the Court of Appeals that Sutherland exceeded the limitations of expert testimony when he opined that he believed that Bynum and others went to the party store “waiting for someone to give [the Boardman Boys] the chance” to protect their turf. That testimony was an opinion that Bynum acted in conformity with the character traits commonly associated with gang members on a particular occasion, in violation of
As stated, defense counsel did not specifically object to Sutherland‘s testimony that Bynum acted in conformity with his gang membership in committing the charged crimes. As a result, Bynum must show that a plain error affected his substantial rights and that he is actually innocent or that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”37
Sutherland actually and clearly opined on Bynum‘s character traits as a gang member to link him to the particular conduct at issue when he explained what he saw on the surveillance video: Bynum‘s conformity with traits commonly associated with gang members on a particular occasion to show ” ‘how violent we [i.e., Bynum and the other Boardman Boys] can be. . . .’ ” Under the standard articulated above, Sutherland exceeded the limitations of
Furthermore, we agree with the Court of Appeals that, although “there was overwhelming evidence that Bynum participated in the shooting that led to Carter‘s death and that his self-defense theory was not particularly persuasive,” the evidence of Bynum‘s premeditation “was threadbare, at best.”38 As a result, “it is likely that, had the jury not heard the propensity evidence or been told by an expert that Bynum and his friends went
Carines also requires that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”40 An error of this magnitude satisfies this requirement because it inevitably led the jury to find that Bynum premeditated in the murder on the basis of his membership in a gang and the asserted character trait that he was thus prone to violence. Particularly when the opinion is proffered by an officer of the law, the error seriously affects the fairness, integrity, or public reputation of the proceedings.41 As a result, Bynum is entitled to relief.
As for the nature of Bynum‘s relief, the prosecution argues that a new trial is not warranted because any evidentiary error would not have affected the jury‘s rejection of Bynum‘s self-defense claim, only its finding of premeditation--an element of first-degree murder, but not the lesser included offense of second-degree murder. As a result, the prosecution requests that, if we conclude that Bynum is entitled to relief, we enter a guilty verdict on the lesser included offense of second-degree murder, which does not require a finding of premeditation. We decline to do so because we cannot so
By proffering an opinion that Bynum exhibited the character trait of violence commonly associated with gang members to explain how Bynum allegedly premeditated in the murder, Sutherland gave the jury a separate reason for rejecting Bynum‘s self-defense claim. In particular, Sutherland‘s testimony provided jurors with a specific basis to reject Bynum‘s statement to police that he was on his guard because “it‘s not safe to walk nowhere” and was “scared for [his] life.” Unlike the partial dissent, we cannot look behind the jury‘s decision to reject Bynum‘s self-defense claim and determine, as a matter of law, that this claim was objectively unreasonable.42 When considering the other evidence adduced at trial without Sutherland‘s testimony, a reasonable jury could have concluded that Bynum‘s purported subjective belief of his danger was objectively reasonable, given that the victims drove up and, within a matter of seconds, Carter began assaulting Bynum. That the victims were unarmed does not weaken the
V. CONCLUSION
As stated, we hold that
Additionally, an expert witness may not use a defendant‘s gang membership to prove specific instances of conduct in conformity with that gang membership, such as opining that a defendant committed a specific crime because it conformed with his or her membership in a gang. Such testimony violates
CAVANAGH, MARKMAN, ZAHRA, MCCORMACK, and VIVIANO, JJ., concurred with KELLY, J.
YOUNG, C.J. (concurring in part and dissenting in part). I respectfully dissent from the majority‘s conclusion that the errors committed in the trial court warrant a new trial. I concur with the majority‘s conclusions that the testimony of Officer Tyler Sutherland, an expert on gangs and gang culture, was generally admissible, but that his specific statement opining on the
However, I dissent from the majority‘s holding that the prejudice resulting from that improper testimony was inseparable from defendant‘s unpersuasive claim of self-defense.1 The facts in the record belie defendant‘s contention that he had a reasonable belief that deadly force was necessary to repel the aggressor‘s attack. When accounting for the relevant facts, it becomes apparent that, notwithstanding Sutherland‘s inadmissible premeditation testimony, defendant‘s self-defense claim would have failed because any belief that deadly force was necessary was manifestly unreasonable.
As a result, I dissent from the majority‘s conclusion that defendant is entitled to a new trial, and I would instead enter a conviction on the lesser-included offense of second-degree murder.
I. PLAIN ERROR STANDARD
The majority correctly concludes that the evidentiary error of the improperly admitted testimony is unpreserved. Because defendant‘s counsel failed to raise the proper objections, it is defendant‘s burden on appeal to show plain error affecting substantial rights.2 Defendant must show that (1) an error occurred, (2) the error
II. DEFENDANT‘S SELF-DEFENSE CLAIM
Because defendant timely raised the issue of self-defense, the prosecution bore the burden at trial of disproving that the killing was done in self-defense.5 By enacting
Sutherland‘s impermissible testimony, which exclusively concerned defendant‘s subjective motive for the use of deadly force, could not affect the inquiry whether defendant‘s belief in the necessity of using deadly force was objectively reasonable.9 That the victim swung first does not support defendant‘s alleged reasonable belief that the situation required the use of deadly force.10 Defendant and his companions outnumbered the victims nearly three-to-one and possessed numerous weapons, while the victim and his companions had none. Moreover, there was no evidence adduced at trial that the victim or his companions gave any indication that they had weapons.11 Given these facts, defendant undeniably had the ability to withdraw from the altercation or to use non-deadly force to parry the victim‘s threat.12 He did neither.13
For these reasons, I conclude that the error in admitting Sutherland‘s impermissible statement was not prejudicial to defendant‘s self-defense claim such that a different outcome would have been even remotely likely if not for the evidentiary error.
III. CONCLUSION
Because any prejudice to defendant‘s claim of self-defense was not outcome-determinative, I respectfully dissent from the majority‘s holding that defendant is entitled to a new trial. Although one part of Sutherland‘s testimony improperly touched on premeditation, the jury‘s findings on all the elements of the necessarily lesser-included offense of second-degree murder remain unaffected.15 Because there exists no outcome-determinative error regarding defendant‘s claim of self-defense, the jury‘s remaining factual determinations are sufficient to sustain a conviction of second-degree murder. Therefore, I would remand this matter for the entry of such a conviction.