People of Michigan v. Tarone Devon Washington ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 9, 2021
Plaintiff-Appellee,
v No. 352408
Berrien Circuit Court
TARONE DEVON WASHINGTON, LC No. 2018-002573-FC
Defendant-Appellant.
Before: MURRAY, C.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a jury trial of one count of assault
with intent to murder, MCL 750.83; one count of second-degree murder, MCL 750.317; and two
counts of carrying or possessing a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant to serve concurrent terms of 18 to 50 years’
imprisonment for the conviction of assault with intent to murder and 31 to 75 years’ imprisonment
for the second-degree murder conviction, and 2 years’ consecutive imprisonment for each felony-
firearm conviction to be served concurrently with each other. We affirm.
This case stems from the shooting of Joseph Tyson and Robert White that took place at
Edgecumbe Park, in Benton Harbor, during the early-morning hours of July 1, 2018. Tyson died
as a result of a gunshot wound, and White was hospitalized as a result of two gunshot wounds.
I. SUFFICIENCY OF THE EVIDENCE
Defendant’s first claim of error is that there was insufficient evidence to sustain his second-
degree murder conviction for the death of Tyson. We disagree. We review de novo defendant’s
challenge to the sufficiency of the evidence. People v Meissner, 294 Mich App 438, 452; 812
NW2d 37 (2011).
When reviewing the sufficiency of the evidence, this Court reviews the evidence presented
at trial to determine whether a rational trier of fact could find that the essential elements of the
crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d
85 (2012). This Court views all evidence, including both direct and circumstantial evidence, in
-1-
the light most favorable to the prosecution. People v Hardiman, 466 Mich 417, 428; 646 NW2d
158 (2002). “Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” People v Carines, 460 Mich 750, 757;
597 NW2d 130 (1999) (quotation marks and citation omitted). “All conflicts in the evidence must
be resolved in favor of the prosecution.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d
57 (2008). It is for the fact-finder, and not this Court, to determine what inferences can be fairly
drawn from the evidence and to determine the weight that should be given to those inferences.
Hardiman, 466 Mich at 428. The prosecutor is not required to negate every reasonable theory of
innocence, but is only required to prove his or her own theory beyond a reasonable doubt. People
v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
Defendant argues that there was insufficient evidence to support his conviction of second-
degree murder for the death of Tyson. Defendant maintains that there were five shooters at
Edgecumbe Park in the early-morning hours of July 1, 2018, and that only one witness, Steven
Cobb, testified that defendant fired any shots. Defendant concludes that the evidence that
defendant shot Tyson does not rise above a scintilla of evidence and is therefore insufficient.
To prove second-degree murder, the prosecution must show that there was a death, that
death was caused by an act of defendant, the defendant acted with malice, and the defendant did
not have lawful justification or excuse for causing that death. People v Smith, 478 Mich 64, 70;
731 NW2d 411 (2007). Defendant alleges that the prosecutor has not provided sufficient evidence
that Tyson’s death was caused by an act of defendant, the second element required to prove second-
degree murder.
Initially, it should be noted that defendant misstates the evidence. In his brief, defendant
states that Cobb was the only witness who testified that defendant was one of the shooters. This
is incorrect. White testified that he “looked towards Tarri and ‘boom,’ he shot me. I turn around
and he shot me in the leg.” Jaber Ellis also provided testimony that he saw something silver in
defendant’s hand, saw a flash come from that object, and heard a gunshot. Thus, defendant’s
assertion that Cobb was the only person to testify that defendant was one of the shooters is contrary
to the evidence admitted at trial.
Defendant argues that there was no physical evidence or direct evidence admitted at trial
that defendant shot Tyson. The prosecutor acknowledged this to be true in his closing argument.
However, there was circumstantial evidence admitted at trial that could convince a reasonable fact-
finder beyond a reasonable doubt that defendant shot Tyson. White testified that, while he was
standing within feet of both defendant and Tyson, White heard a gunshot, heard Tyson say “uh”
like Tyson was hurt, and then Tyson took off running. Immediately afterward, White turned
toward defendant and saw defendant holding a gun and pointing it at White.
Defense counsel attacked White’s credibility at trial. However, witness credibility and the
weight to give the evidence is for the jury to decide, and this Court will not interfere with the jury’s
determination on those issues. See People v Wolfe, 440 Mich 508, 514; 489 NW2d 748 (1992).
Additionally, the inferences that can reasonably be drawn from the evidence and the weight to give
those inferences is also for the jury to decide. See Hardiman, 466 Mich at 428. If the jury found
White to be a credible witness, the jury could reasonably infer from White’s testimony that it was
defendant who shot Tyson. See Carines, 460 Mich at 757 (holding that circumstantial evidence
-2-
and the reasonable inferences arising from that evidence can constitute satisfactory proof of the
elements of a crime). Additionally, the prosecution was only required to prove its theory of guilt
beyond a reasonable doubt, and it was not required to negate every reasonable theory of innocence.
See Nowack, 462 Mich at 400. The prosecution, therefore, did not need to negate the possibility
that Tyson was shot by someone other than defendant during the shootout, but merely needed to
prove beyond a reasonable doubt that it was defendant who shot Tyson.
White’s testimony, when viewed in the light most favorable to the prosecution, is sufficient
to prove beyond a reasonable doubt that the first shot fired by defendant struck Tyson, and the
autopsy revealed that Tyson was killed by a single gunshot wound. Considering this evidence, a
rational trier of fact could find that the essential elements of the charge of second-degree murder
for the death of Tyson were proven beyond a reasonable doubt.1
II. SLEEPING JUROR
Defendant’s second claim of error is that his right to a fair and impartial jury was violated
because a juror was observed to be sleeping during part of the trial. We disagree.
To preserve the issue of juror misconduct, a defendant must raise the issue in a motion for
a new trial or in a motion for an evidentiary hearing. See People v Benberry, 24 Mich App 188,
191-192; 180 NW2d 391 (1970). At trial, defense counsel requested a bench conference to alert
the trial court that a juror was asleep. In the bench conference that followed, defense counsel said
that he just wanted to bring the sleeping juror to the trial court’s attention, and suggested that they
take a brief break. Much of the rest of what was said in the bench conference by the trial court,
defense counsel, and the prosecution was not captured in the transcript. Although defense counsel
noted to the trial court that a juror was sleeping, defense counsel did not move on the record for a
new trial or for an evidentiary hearing. Defendant’s claim of juror misconduct is, therefore,
unpreserved.
Constitutional issues, including the right to a fair trial, are ordinarily reviewed de novo.
People v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). However, if an appeal of juror
misconduct is not preserved, it is reviewed for plain error affecting the defendant’s substantial
rights. People v Milstead, 250 Mich App 391, 402; 648 NW2d 648 (2002). “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.” Carines, 460
Mich at 763. “The third requirement generally requires a showing of prejudice, i.e., that the error
affected the outcome of the lower court proceedings.” Id.Defendant argues that the sleeping juror was unable to exercise the powers of reason and
judgment because she was asleep, and the trial court had a duty to dismiss that juror. Because the
juror was not dismissed, defendant maintains that the trial, and the resulting convictions, are tainted
and must be overturned.
1
Although defendant only disputes the “identity” element of second-degree murder, we conclude
that the remaining elements of that offense were also established beyond a reasonable doubt.
-3-
By notifying the trial court of the sleeping juror during the bench conference, but failing to
move for a mistrial or the disqualification of that juror, defense counsel arguably consented to the
sleeping juror remaining on the jury, which would extinguish this claim of error. See People v
Carter, 462 Mich 206, 217-218; 612 NW2d 144 (2000). However, given the fact that the bench
conference in the trial transcript is so incomplete, we cannot conclude based on the record that
defendant waived this issue.
Even if the alleged juror misconduct did occur, it does not warrant a new trial unless the
party seeking the new trial can show that the misconduct was such as to affect the impartiality of
the jury or disqualify it from exercising the powers of reason and judgment. People v Dunigan,
299 Mich App 579, 586; 831 NW2d 243 (2013). In the event that a juror is observed to be asleep,
it is not sufficient for defendant to make a bare assertion that the sleeping juror could not fairly
and competently consider the charges and therefore was not qualified to give a verdict. Id. Instead,
the defendant must articulate how he or she was prejudiced by the sleeping juror. Id.It is unclear from the record what, if any, testimony the juror missed, because it is unclear
how long the juror was sleeping. The bench conference occurred at 2:27 p.m., which was
53 minutes after a break in the trial. There is no indication in the transcripts that any juror was
sleeping at any other time during the trial. During the time between that break and the bench
conference, the prosecution was presenting its case-in-chief. Specifically, the prosecutor was
questioning Sergeant Chartrand regarding his investigation of the crime scene.
This Court previously has concluded that a sleeping juror is not egregious enough to
warrant a finding of juror misconduct. Id. This Court in Dunigan noted that only one juror had
been observed to be sleeping, and there was no indication of what, if any, testimony the juror
missed. Id. In the instant case, the juror could have been sleeping from anywhere up to 53 minutes
during Sergeant Chartrand’s testimony but, unfortunately, the record does not indicate for how
long.
Additionally, this Court has rejected the argument that a sleeping juror necessarily
prejudices a defendant. Id. Like the defendant in Dunigan, defendant in the instant case has failed
to articulate how the sleeping juror prejudiced him and has merely made a bare assertion that he
was prejudiced because the juror was sleeping. See id. Indeed, given that the juror was asleep
during a portion of the prosecution’s case-in-chief, any testimony that the juror missed was
presumably favorable to the prosecution, not defendant.
Based on the record of the trial, defendant has failed to demonstrate that the juror at issue
could not fairly and competently consider the charges against defendant and, therefore, has failed
to demonstrate that the juror was not qualified to give a verdict. See id. It was not plain error for
the trial court to keep this juror on the jury. See Carines, 460 Mich at 763.
III. PROSECUTORIAL ERROR
-4-
Defendant’s third claim of error is that the prosecutor committed error during his closing
argument.2 We disagree.
To preserve a claim of error involving prosecutorial error, a defendant must
contemporaneously object and must request a curative instruction. People v Bennett, 290 Mich
App 465, 475; 802 NW2d 627 (2010). Defendant did not object to the alleged prosecutorial error
at issue in this appeal. This claim is, therefore, unpreserved.
We generally review a claim of prosecutorial error de novo to determine whether defendant
was denied a fair trial. See Dunigan, 299 Mich App at 588. However, when a claim of
prosecutorial error is unpreserved, we review the claim for plain error affecting substantial rights.
See People v Gibbs, 299 Mich App 473, 482; 830 NW2d 821 (2013).
Claims of prosecutorial error are reviewed on a case-by-case basis. People v Mullins, 322
Mich App 151, 172; 911 NW2d 201 (2017). The defendant bears the burden of proving that he
was denied a fair and impartial trial. People v Lane, 308 Mich App 38, 62; 862 NW2d 446 (2014).
When a claim of prosecutorial error is based on a prosecutor’s statements, those statements must
be analyzed in context to determine if the defendant was denied a fair trial. Mullins, 322 Mich
App at 172. The prosecutor’s statements must be analyzed in light of the defense arguments and
the relationship between the prosecutor’s statements and the evidence admitted at trial. Id. In
closing argument, prosecutors are generally given great latitude and are free to argue the evidence
and all reasonable inferences from the evidence. Id. However, “[a] prosecutor may not make a
factual statement to the jury that is not supported by the evidence.” People v Dobek, 274 Mich
App 58, 66; 732 NW2d 546 (2007). A prosecutor also may not imply or assert that defense counsel
is intentionally trying to mislead the jury. People v Watson, 245 Mich App 572, 592; 629 NW2d
411 (2001).
When a claim of prosecutorial error is unpreserved, this Court only will review the alleged
error “if a curative instruction could not have remedied the prejudicial effect of the prosecutor’s
comments or if the failure to consider the issue would result in a miscarriage of justice.” People v
Mayhew, 236 Mich App 112, 122-123; 600 NW2d 370 (1999); see MCL 769.26. “A miscarriage
of justice will not be found if the prejudicial effect of the prosecutor’s comments could have been
cured by a timely instruction.” Mayhew, 236 Mich App at 123. “Curative instructions are
sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements.” People v
Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009).
Defendant argues that three comments the prosecutor made during his closing argument
constituted prosecutorial error. First, defendant argues that the prosecutor erred when he said that
“there was no mention of lying in that first police report” of White’s interview with police officers.
The prosecutor made this comment in response to defense counsel’s argument that White lied to
police officers and therefore that the jury should not believe White’s testimony. During the trial,
2
“[A] more accurate label for most claims of prosecutorial misconduct is ‘prosecutorial error,’
while only the most extreme cases rise to the level of ‘prosecutorial misconduct.’ ” People v
Caddell, 332 Mich App 27, 71 n 10; 955 NW2d 488 (2020).
-5-
White testified explicitly that he lied to police officers in the first interview, which was conducted
on July 2. During cross-examination, White testified as follows:
Q. So, at first you lied to the police ‘cause you wanted to take out revenge
on people; correct?
A. Correct.
In light of White’s testimony, the prosecutor made a factual statement not supported by the
evidence when he stated that there was no mention of White lying to police in the first interview.
Prosecutors are not allowed to make a factual statement not supported by the evidence. See Dobek,
274 Mich App at 66. However, the prosecutor’s statement did not result in a miscarriage of justice.
On at least two occasions, the trial court instructed the jury that the arguments made by the lawyers
were not evidence and that the jury may only consider evidence that has been properly admitted
when reaching a verdict. Moreover, the comment in question was fleeting and not emphasized by
the prosecutor. Because jurors are presumed to follow the instructions provided, the jury in this
case is presumed to have based their verdict on White’s testimony, and not the prosecutor’s brief
misstatement of White’s testimony. See People v Stevens, 498 Mich 162, 177; 869 NW2d 233
(2015).
Additionally, most inappropriate prosecutorial statements are able to be cured by an
instruction from the court. See Seals, 285 Mich App at 22. Had a timely objection been made in
this case, the trial court could have provided a curative instruction regarding the prosecutor’s
misstatement of the evidence. As such, a miscarriage of justice has not resulted from the
prosecutor’s statement regarding White’s truthfulness in the first interview with police. See
Mayhew, 236 Mich App at 123.
Defendant next argues that the prosecutor committed error when he said that the medication
White received in the hospital “play things with your memory.” The prosecutor went on to say
that a doctor testified that the medication wore off after 12 hours, and White’s interview with
police officers occurred after that. The prosecutor made these comments as he was describing the
events White had experienced before his July 2 interview with police which might have colored
White’s memory.
The prosecutor’s factual statement that the medication White received at the hospital could
have affected White’s memory is supported by the evidence at trial. What defendant claims to be
prosecutorial error is the implication that the effects of this medication, which the prosecutor noted
had already worn off by the time White spoke with police officers, could have impacted White’s
memory during his interview with police officers.
The implication that the medication White received at the hospital could have impacted his
memory when White spoke to police is not supported by the evidence at trial. However, that
implication did not impact the outcome of the trial. Because White testified that he knowingly
lied to police, his memory when he spoke to police officers was not at issue. It is, therefore, unclear
how an unsupported factual implication from the prosecutor that White’s memory was impaired
when he spoke to police officers could have impacted the outcome of the trial.
-6-
Finally, defendant argues that the prosecutor committed error when the prosecutor told the
jury that defense counsel’s arguments were “red herrings” intended to put the jury off. In his
closing argument, defense counsel discussed what he argued was inconsistent testimony from
White and Cobb regarding defendant’s shorts, hat, and hairstyle at the time of the shooting. In his
rebuttal, the prosecutor said that defense counsel was discussing shorts and hairstyles because
defense counsel was going to use “any red herring you can throw out there to put you off.”
This Court has previously addressed a prosecutor’s use of the term “red herring” to describe
defense counsel’s argument. In Watson, 245 Mich App at 592, this Court found the prosecutor’s
comments to be improper when the prosecutor said, among other things, that defense counsel had
thrown “a whole boatload of red herrings” at the jury. However, Watson went on to state that such
an “otherwise improper remark may not rise to an error requiring reversal when the prosecutor is
responding to the defense counsel’s argument.” Id. at 593. In Dobek, this Court found that the
prosecutor’s description of defense counsel’s argument as “red herrings” did not generate the type
of accusatory prejudice that was previously held to be improper. Dobek, 274 Mich App at 67.
In the instant case, the prosecutor’s description of defense counsel’s argument as a “red
herring” does not amount to prosecutorial error. Considered in context, the comment was brief
and did not personally disparage defense counsel. In fact, it credited defense counsel for
representing his client. Defendant has not shown that the prosecutor’s “red herring” comment
amounted to the type of accusatory prejudice that has previously been held to be improper.
Additionally, this Court in Dobek also held that, even if the prosecutor’s “red herring”
comments were improper, any prejudicial effect could have been cured by a timely instruction,
and therefore reversal was not warranted. Id. at 68. When the prejudice of the prosecutor’s
comments could have been cured by a timely instruction, a miscarriage of justice will not be found.
Mayhew, 236 Mich App at 123. As such, a miscarriage of justice has not resulted from the
prosecutor’s “red herring” comment in this case.
Defendant has not shown that any of the three alleged instances of prosecutorial error
amounted to plain error which would warrant a new trial.
IV. INEFFECTIVE ASSISTANCE
Defendant’s fourth claim of error is that he was provided ineffective assistance of counsel
in six different instances at trial. We disagree.
To preserve the issue of ineffective assistance of counsel, defendant must move for a new
trial or a Ginther3 hearing. People v Sabin (On Second Remand), 242 Mich App 656, 658; 620
NW2d 19 (2000). On appeal, defendant moved to remand to the trial court for a Ginther hearing.
This Court conditionally denied the motion “without prejudice to a case call panel of this Court
determining that remand is necessary once the case is submitted on a session calendar.” People v
3
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-7-
Washington, unpublished order of the Court of Appeals, entered May 19, 2021 (Docket No.
352408).4 This issue has been preserved.
Whether defendant is entitled to a new trial because he received ineffective assistance of
counsel is a mixed question of law and fact. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d
136 (2012). This Court reviews the trial court’s findings of fact for clear error, while it reviews
questions of law de novo. Id. When there has been no evidentiary hearing held below, this Court’s
review is limited to mistakes that are apparent on the record. People v Gioglio (On Remand), 296
Mich App 12, 20; 815 NW2d 589 (2012).
To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate that
(1) defense counsel’s representation fell below an objective standard of reasonableness, and
(2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
trial would have been different.” Strickland v Washington, 466 US 668, 688, 692-694; 104 S Ct
2052; 80 L Ed 674 (1984).
The first prong of the Strickland test is whether defense counsel’s representation “fell
below an objective standard of reasonableness.” See id. at 688. When analyzing whether defense
counsel’s representation fell below an objective standard of reasonableness, defense counsel
should be “strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690; see also People v
Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). The reviewing court should make this
determination in light of all the circumstances. Vaughn, 491 Mich at 670. The reviewing court
should “affirmatively entertain the range of possible reasons counsel may have had for proceeding
as they did.” Id. (quotation marks, citation, and alteration omitted). Defense counsel’s conduct
does not fall below an objective standard of reasonableness if the court can conceive of a legitimate
strategic reason for that conduct. See People v Clark, 330 Mich App 392, 427; 948 NW2d 604
(2019). “Trial counsel is not required to advocate a meritless position.” People v Snider, 239
Mich App 393, 425; 608 NW2d 502 (2000).
The second prong of the Strickland test is whether defendant has suffered prejudice because
of defense counsel’s performance. See Strickland, 466 US at 694. Defendant has the burden of
affirmatively proving prejudice. See id. at 696. Defendant must prove that, “but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” See Trakhtenberg, 493 Mich at 51.
Defendant first argues that his defense counsel was ineffective when he did not move for a
mistrial or move for the disqualification of the sleeping juror. We disagree.
This Court has previously addressed whether a defense counsel’s failure to move to
disqualify a sleeping juror constitutes ineffective assistance of counsel. See Dunigan, 299 Mich
App 579. In Dunigan, this Court found that the defendant did not establish that a sleeping juror
“affected the outcome of the proceedings.” Id. at 586. Dunigan noted that the testimony the juror
may have missed while asleep was that of a witness for the prosecution, and that defense counsel
4
For the reasons explained herein, we once again conclude that a remand is unnecessary.
-8-
could reasonably have made a strategic decision that the juror missing that testimony could have
helped the defense. Id. at 586-587. Dunigan also rejected the argument that a defendant is
necessarily prejudiced by a sleeping juror, and instead required defendant to articulate how the
sleeping juror prejudiced the defendant. Id. at 586.
Here, defense counsel notified the trial court that a juror was sleeping at 2:27 p.m. on the
second day of trial, during the testimony of Sergeant Chartrand, an evidence technician who was
testifying about his investigation of the crime scene. Defense counsel informed the trial court that
he saw the juror sleeping, but defense counsel did not move to disqualify the juror or move for a
mistrial.
Like in Dunigan, defendant in the instant case has not overcome the presumption that
defense counsel acted reasonably when he decided not to move for a mistrial or the disqualification
of the juror after he observed that juror sleeping during the testimony of one of the prosecution’s
witnesses. See id. at 586-587. Defense counsel could reasonably have made a strategic decision
to assume that the juror missing that testimony would have helped the defense. See id. at 586-587.
Defendant has, therefore, failed to satisfy the first prong of the Strickland test by failing to
demonstrate that defense counsel’s conduct was objectively unreasonable. See Strickland, 466 US
at 688.
Defendant has also failed to show that he was prejudiced by defense counsel’s conduct
under the second prong of the Strickland test. See id. at 694. Like the defendant in Dunigan,
defendant in the instant case makes bare assertions that a juror sleeping during a portion of the
testimony of a witness for the prosecution necessarily prejudiced him. See Dunigan, 299 Mich
App at 586. That is not sufficient to demonstrate a reasonable probability that the sleeping juror
affected the outcome of the trial. See id. Defendant has therefore failed to show that he was
prejudiced by defense counsel’s decision not to move for a mistrial or for disqualification of the
sleeping juror.
Defendant next argues that his defense counsel was ineffective for failing to object to the
prosecutor’s statements made during closing argument which defendant argues amounted to
prosecutorial error. We disagree.
When a claim of ineffective assistance of counsel is based on a failure to object to the
prosecutor’s comments made during closing argument, this Court has found that the prejudice of
the prosecutor’s comments can be alleviated by the trial court’s instruction to the jury that the case
is to be decided on the evidence and that the comments of counsel are not evidence. People v
Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004). Additionally, declining to raise
objections, especially during closing arguments, can often be consistent with sound trial strategy.
People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). “We will not substitute our
judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight
when assessing counsel’s competence.” Id. at 242-243.
Defendant alleges that the prosecutor committed error when he: (1) argued that the
statements White made during police interviews, at a preliminary hearing, and at trial were
consistent and that White did not lie to police officers; (2) implied that the medication White
-9-
received in the hospital could have impacted his memory when he spoke with police officers on
July 2; and (3) told the jury that defense counsel was using red herrings to confuse the jury.
Regarding the first instance of alleged prosecutorial error, as stated earlier, the prosecutor
did misstate the evidence when he said that there was no mention at trial that White lied to police
in the first interview. Defense counsel did not object to the prosecutor’s comments regarding
White’s consistency, but he did spend time in his closing argument addressing the credibility of
White and inconsistencies in White’s testimony and previous statements. Defense counsel’s
decision to address this issue in his own closing, instead of objecting to the prosecutor’s closing,
was trial strategy, and this Court will not substitute our judgment for that of defense counsel on
matters of trial strategy. See id. Defendant has not overcome the strong presumption that defense
counsel was reasonable when he decided to make his own arguments about White’s inconsistencies
and credibility instead of objecting to the prosecutor’s argument on that issue. See id. at 243.
Additionally, any prejudice that may have resulted from the prosecutor’s misstatement of the
evidence was alleviated by the trial court’s instruction that the prosecutor’s statements were not
evidence and that the jury needed to decide the case solely on the evidence. See Thomas, 260
Mich App at 457.
Likewise, defendant’s argument that his defense counsel was ineffective for failing to
object to the prosecutor’s statements regarding the impact the medication had on White’s memory
also is not persuasive. Defense counsel’s decision to argue in his own closing argument that White
was a liar and that White’s statements are not credible, and to forgo an objection to the prosecutor’s
argument on that issue, is a matter of trial strategy that is strongly presumed to be sound. See
Unger, 278 Mich App at 243. Defendant has not overcome this strong presumption. Additionally,
any prejudice that may have resulted from the prosecutor’s misstatement of the evidence was
alleviated by the trial court’s instruction that the prosecutor’s statements were not evidence and
that the jury needed to decide the case solely on the evidence. See Thomas, 260 Mich App at 457.
Finally, defense counsel was not ineffective for failing to object to the prosecutor’s “red
herring” comment. As described above, this Court has previously rejected the argument that the
prosecutor referring to defense counsel’s argument as a “red herring” is necessarily prosecutorial
error. See Dobek, 274 Mich App at 67. Regardless, this comment from the prosecutor was brief
and incidental, and an objection might have unnecessarily drawn the jury’s attention to it.
Declining to raise objections can often be consistent with sound trial strategy, as in this case. See
Unger, 278 Mich App at 242.
Accordingly, defense counsel was not ineffective for failing to object to any of the three
alleged instances of prosecutorial error.
Defendant next argues that his defense counsel was ineffective when he did not object to
the admission of testimony by White that defendant robbed White’s friend. We disagree.
At trial, during his direct examination by the prosecution, White testified that defendant
robbed White’s friend, Robert Lee. Although some evidence of defendant’s prior acts had already
been deemed admissible by the trial court, evidence of defendant’s alleged robbery of Lee was not
previously discussed or deemed admissible.
-10-
Defense counsel did not object to White’s testimony that defendant robbed Lee, but defense
counsel did question White about that alleged robbery of Lee on cross-examination. In that
questioning, defense counsel asked White about whether he was seeking revenge against defendant
for the robbery of Lee. Even assuming that the testimony regarding the Lee robbery was
inadmissible prior-acts evidence, see MRE 404(b), defendant has not overcome the strong
presumption that it was sound trial strategy for defense counsel not to object to the testimony
regarding the robbery of Lee, and instead to cross-examine White regarding that testimony. In
other words, a legitimate trial strategy would have been to use the alleged robbery to undermine
White’s credibility. See Unger. 278 Mich App at 243. To the extent that defense counsel’s
strategy to cross-examine White regarding the Lee robbery instead of objecting to direct testimony
regarding the Lee robbery was unsuccessful, that trial strategy is not ineffective because it is
unsuccessful. See People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001). Thus,
we conclude, defense counsel was not ineffective for not objecting to White’s testimony regarding
defendant robbing Lee.
Defendant next argues that his defense counsel was ineffective when he did not request a
jury instruction limiting White’s prior-act testimony to the charge that defendant shot White. We
disagree.
A party may request a limiting instruction when evidence of other acts is presented under
MRE 404(b). People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).
Defense counsel’s decision to request a limiting instruction is a matter of trial strategy. Id. at 444-
445. Defense counsel’s decision not to request a limiting instruction will be deemed to constitute
ineffective assistance if that instruction pertains to a basic and controlling issue in the case. See
People v Ortiz, 249 Mich App 297, 312; 642 NW2d 417 (2001). Cautionary instructions are
advisable but not mandatory. Id.Before trial, the prosecutor moved to admit evidence of an altercation between White and
defendant that happened before the shooting. The prosecution sought to admit that evidence to
prove motive, intent, premeditation, and deliberation in the shooting of both White and Tyson.
The trial court granted the motion.
Defendant argues that defense counsel should have requested an instruction limiting the
jury’s use of White’s testimony to the charge that defendant shot White. But the trial court ordered
that this evidence was admissible as to both charged shootings; the trial court did not limit the
purpose of this evidence solely to the charge that defendant shot White. It would be meritless for
defense counsel to request a jury instruction limiting the jury’s use of White’s testimony when the
trial court had already ruled that White’s testimony was not limited in that manner. Defense
counsel is not required to advocate for a meritless position and, therefore, was not unreasonable.
See Snider, 239 Mich App at 425.
Defendant next argues that defense counsel was ineffective when he did not make an
argument about defendant’s lack of motive to shoot Tyson. We disagree.
The prosecution argued that defendant’s motive for shooting Tyson was that Tyson was a
friend of White, who was defendant’s enemy. This argument is not inherently illogical. Defense
counsel’s decision not to discuss the motive that the prosecutor argued defendant had for shooting
-11-
Tyson was trial strategy which is presumed to be sound. Defense counsel could have decided that
there were other, more important aspects of the case that he wanted to highlight for the jury in
closing argument. Defense counsel therefore may have felt that spending time discussing the
prosecution’s theory regarding defendant’s motive to shoot Tyson, which was not an element
second-degree murder and not something the prosecution was required to prove, would detract
from the other arguments he wanted to make on closing argument. See Clark, 330 Mich App
at 427 (holding that this Court could not conclude that defense counsel’s conduct fell below an
objective standard of reasonableness because the court could conceive of a legitimate strategic
reason for that conduct). It was not unreasonable for defense counsel not to address motive in
closing argument. Therefore, defendant has not shown that defense counsel was ineffective for
not discussing in closing argument the prosecution’s theory regarding defendant’s motive to shoot
Tyson.
Finally, defendant argues that defense counsel was ineffective for failing to capitalize on a
statement made by the prosecutor during closing arguments that defendant believes contradicts the
prosecution’s theory of guilt for the shooting of Tyson. We disagree.
Defendant argues that the prosecutor’s statement that the first shot “whizzed by” White’s
head contradicted the prosecution’s theory of the case, which was that the first bullet struck Tyson.
The specific comment defendant identified was made by the prosecutor in his rebuttal closing
argument.5 Therefore, defense counsel did not have the opportunity to make an argument on that
allegedly contradictory statement from the prosecutor because defense counsel is not entitled to
make a rebuttal to the prosecution’s rebuttal closing argument. See MCR 2.513(L);
MCR 6.001(D). In other words, there was no way for defense counsel to capitalize on a possibly
favorable statement by the prosecutor during rebuttal. See Snider, 239 Mich App at 425 (holding
that defense counsel was not ineffective for failing to object when that objection would have been
meritless).
Furthermore, contrary to defendant’s argument, the prosecutor’s statement does not
contradict the prosecutor’s theory of the case. The prosecutor’s theory of guilt was that the first
bullet shot by defendant went past White and struck Tyson. The prosecutor made this point in his
opening statement, stating that White “heard the first shot that whizzed by his head and hit
[Tyson].” The prosecutor’s opening statement shows that his theory of the case was that the first
shot whizzed by White’s head and then hit Tyson, which is consistent with the prosecution’s theory
that the first shot fired by defendant hit and killed Tyson. It would be meritless for defense counsel
to point out a contradiction in the prosecutor’s theory that does not exist, and defense counsel is
not required to advocate for a meritless position. See id. at 425. Defense counsel was not
ineffective for failing to argue that the prosecutor’s statement that the first shot “whizzed by”
White was contradictory.
5
The prosecutor also stated that the first shot “whizzed” by White in the prosecutor’s opening
statement and initial closing argument, but defendant did not identify those comments as being
contradictory to the prosecution’s theory of guilt.
-12-
V. CONCLUSION
There were no errors warranting relief. We affirm.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Michael J. Riordan
-13-