Background
Monae Sharae Foster was convicted by a Wayne County jury of two counts of assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84, and two counts of felony-firearm, MCL 750.227b(1), arising from a November 14, 2020 fight at a Detroit gas station. The victims, Shannon Harden and Rayshannon Woods, stopped at the station after an evening out. According to the prosecution’s evidence—including both victims’ testimony and surveillance video—Foster and her companion, Marquise Barner, argued with Harden in the parking lot; Barner threw a drink at Harden, and Foster attacked her, knocking her down and pulling hair from her scalp. When Woods intervened, Foster pulled a handgun, threatened to “pistol whip” her, and swung the gun at her head, striking her shoulder after Woods moved. Foster then approached the car where Harden sat and shot her once in the stomach. Police traced the getaway sedan’s license plate to Foster, recovered a 9-millimeter handgun from her home, and matched a spent cartridge case from the scene to that gun.
Foster was initially charged with assault with intent to murder (AWIM) as to Harden, AWIGBH as to both victims, carrying a dangerous weapon with unlawful intent, and four felony-firearm counts. At trial, the court granted a directed verdict on the carrying charge and its associated felony-firearm count. Foster testified that the gun discharged as Harden tried to grab it, though she admitted on cross-examination that she fired a single shot after Harden threw something at her. The jury acquitted her of AWIM and its attendant felony-firearm count but convicted on both AWIGBH counts and two felony-firearm counts. She was sentenced to 3 to 10 years on one AWIGBH conviction, 23 months to 10 years on the other, and two years on each felony-firearm count.
The Court’s Holding
The per curiam panel affirmed. On sufficiency, reviewed de novo in the light most favorable to the prosecution, the court held the evidence supported the AWIGBH conviction involving Woods. Foster challenged only the intent element, arguing she missed Woods’s face, struck only her shoulder, and caused no injury requiring treatment. The court responded that actual injury is not an element of AWIGBH; the question is what injury the defendant intended. A jury could reasonably infer intent to cause serious injury of an aggravated nature from Foster’s threat to “pistol whip” Woods and her swing of a handgun at Woods’s head, corroborated by surveillance footage. Because the felony-firearm challenge depended entirely on the AWIGBH challenge—and all witnesses confirmed Foster possessed a handgun—that conviction also stood.
On the right to present a defense, the court split its review: the preserved evidentiary ruling (denying Foster’s midtrial request to recall Woods, who was not on the defense witness list) was reviewed for abuse of discretion, while the unpreserved constitutional claim was reviewed for plain error. The court found no abuse of discretion because recalling Woods to impeach her testimony about a preliminary-examination subpoena would have been needlessly cumulative—Woods had already been examined on the subject, the detective testified he issued no subpoena, the prosecutor found none in the police file, and Foster conceded on appeal that no subpoena exists. The constitutional claim failed at the first step of plain-error analysis because excluding cumulative testimony on a collateral point was a routine, permissible application of MRE 403 under Holmes v South Carolina. The court added that any error was harmless given Woods’s other impeachment and the corroborating video.
On ineffective assistance, reviewed for errors apparent on the record because no Ginther hearing was sought, the court rejected both claims. First, counsel’s failure to challenge the bindover on the Woods charges caused no prejudice: dismissal would have been without prejudice under MCR 6.110(F) and (H), Woods was available to testify at a new examination, and under People v Wilson a fair conviction at trial forecloses relief based on preliminary-examination sufficiency. Second, counsel’s decision to keep Juror One—who said her brother’s shooting might “possibly” affect her impartiality but affirmed she could be fair and disclosed she held a concealed pistol license—fell within the wide range of reasonable strategy, and Foster showed no actual bias, as Hughes v United States requires.
Key Takeaways
- Intent for AWIGBH can be inferred from threats and swinging a handgun at a victim’s head; missing the target and causing no injury do not negate intent because actual injury is not an element.
- A trial court does not abuse its discretion—or violate the right to present a defense—by refusing to recall a witness for cumulative impeachment on a collateral matter, particularly where the defendant concedes the underlying fact (no subpoena existed).
- Failing to challenge a bindover is not prejudicial ineffective assistance because dismissal is without prejudice to refiling, and a fair conviction at trial moots any preliminary-examination evidentiary shortfall.
- A juror’s equivocal “possibly” about impartiality, coupled with assurances of fairness and her own status as a licensed gun owner, supports counsel’s strategic choice to keep her; absent proof of actual bias, no prejudice results.
Why It Matters
The unpublished decision illustrates how Michigan appellate courts parse mixed standards of review within a single claim—abuse of discretion for preserved evidentiary rulings versus plain error for unpreserved constitutional objections—and how each path independently forecloses relief. It also reinforces two practical points for criminal practitioners: bindover challenges rarely yield lasting relief because dismissal is without prejudice, and ineffective-assistance claims premised on jury selection face steep odds absent a record showing actual juror bias, since appellate courts cannot observe demeanor and defer to counsel’s on-the-ground judgment.