People of Michigan v. Michael Tarris-Rashad Norris ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 9, 2015
Plaintiff-Appellee,
v No. 321185
Kent Circuit Court
MICHAEL TARRIS-RASHAD NORRIS, LC No. 13-008427-FC
Defendant-Appellant.
Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of felony murder, MCL 750.316(1)(b);
two counts of assault with intent to commit murder, MCL 750.83; one count of assault with
intent to rob while armed, MCL 750.89; and five counts of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to
life imprisonment without the possibility of parole for each of his felony murder convictions; life
imprisonment for each of his assault with intent to commit murder convictions; life
imprisonment for his assault with intent to rob while armed conviction; and two years’
imprisonment for each of his felony-firearm convictions. He appeals as of right. Because
defendant’s claims of prosecutorial misconduct are without merit, we affirm.
In the early morning hours of September 3, 2012, acting with an accomplice, defendant
shot and robbed three men coming out of a party store. Two of the victims died and the third
was seriously injured. A short time later, four or five blocks from the first shooting, defendant
then shot two more men in a parking lot. Both men were seriously injured, but they survived
their gunshot wounds. At trial, in addition to other testimony and evidence implicating
defendant, cellular telephone records placed defendant in the area of the shootings around the
time both shootings occurred. Defendant’s accomplice, Manual Rosado, testified against
defendant and specifically identified defendant as the shooter. Another witness testified that,
shortly before the shootings, defendant and Rosado obtained guns from a man named “Swello.”
One of defendant’s friends, Antonio Jones, also testified that, the day after the shooting,
defendant confessed to Jones that he had shot three people. Defendant also told another
individual, Louis Wilbon, that he threw the gun away in the Burton Heights area, and a gun was
recovered shortly after the shootings in that area of the city. The gun was later matched to shell
casings recovered at the scenes of both shootings. A jury convicted defendant as noted above.
He now appeals as of right.
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Defendant’s sole claim on appeal is that the prosecutor committed several instances of
misconduct during closing arguments. In particular, defendant contends (1) that the prosecutor
raised an impermissible civic duty argument and made inflammatory appeals to the jury’s
sympathies, (2) that the prosecutor shifted the burden of proof, and (3) that the prosecutor
improperly vouched for the credibility of two prosecution witnesses.
Defendant failed to object to any of the challenged remarks at trial or to request a curative
instruction, meaning that our review on appeal is for whether plain error affecting defendant’s
substantial rights occurred. See People v Brown, 279 Mich. App. 116, 134; 755 NW2d 664
(2008). Consequently, “[r]eversal is warranted only when plain error resulted in the conviction
of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” People v Callon, 256 Mich. App. 312, 329; 662 NW2d 501 (2003).
“Further, we cannot find error requiring reversal where a curative instruction could have
alleviated any prejudicial effect.” Id. at 329-330. “Curative instructions are sufficient to cure the
prejudicial effect of most inappropriate prosecutorial statements, and jurors are presumed to
follow their instructions.” People v Unger, 278 Mich. App. 210, 235; 749 NW2d 272 (2008)
(internal citations omitted).
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” Brown, 279 Mich. App. at 134. To make this determination, we review the
record as a whole and evaluate a prosecutor’s remarks in context, considering the particular facts
of the case, the evidence admitted at trial, and any arguments by defense counsel. Callon, 256
Mich. App. at 330. “Prosecutors are typically afforded great latitude regarding their arguments
and conduct at trial.” Unger, 278 Mich. App. at 236. “They are generally free to argue the
evidence and all reasonable inferences from the evidence as it relates to their theory of the case.”
Id. A prosecutor may, for example, comment on the credibility of witnesses during closing
arguments. People v Thomas, 260 Mich. App. 450, 455; 678 NW2d 631 (2004). Further, a
prosecutor may use emotional language and need not confine her arguments to the blandest of all
possible terms. People v Ackerman, 257 Mich. App. 434, 454; 669 NW2d 818 (2003); People v
Aldrich, 246 Mich. App. 101, 112; 631 NW2d 67 (2001).
A prosecutor may not, however, appeal to the jury to sympathize with the victim or urge
the jury to “convict as part of its civic duty or on the basis of its prejudices.” Unger, 278 Mich
App at 237; People v Watson, 245 Mich. App. 572, 591; 629 NW2d 411 (2001). Such arguments
are not permitted because they improperly inject issues broader than the guilt or innocence of the
defendant. People v Abraham, 256 Mich. App. 265, 273; 662 NW2d 836 (2003). In addition, “[a]
prosecutor may not imply in closing argument that the defendant must prove something or
present a reasonable explanation for damaging evidence because such an argument tends to shift
the burden of proof.” People v Fyda, 288 Mich. App. 446, 463-464; 793 NW2d 712 (2010). A
prosecutor must also refrain from vouching for the credibility of a witness by implying that he or
she possessed “special knowledge of the witness’s truthfulness.” Thomas, 260 Mich. App. at 455.
In this case, defendant first argues that the prosecutor presented an impermissible civic
duty argument that urged the jury to convict in order to protect community safety and in
particular for the safety of the Hispanic community, which the prosecutor presented as
vulnerable to criminal attacks. In context, the challenged remarks, shown in italics, were as
follows:
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And the truth is if the defendant had not been in town, this man, this defendant
had not been in town, up in Big Rapids - - he doesn’t care about these people, he
doesn’t care about anybody from here, he’s not from here - - these men would be
alive. They’d be alive because [Rosado], Swello, whoever it is, whoever you
want to believe is involved in this, we know [Rosado] is. You know, this is not
their first rodeo. If they would have just robbed three drunk Mexicans coming out
of the bar or out of the store, they may have fired a warning shot like [Rosado]
did, like Swello’s done, but these men would not have been mowed down.
The defendant doesn’t know anybody here. He doesn’t care who sees him
do what. He was pumped up, he was drunk, he was high, and maybe trying to
prove something to [Rosado] and the [Maniac Latin Disciples (MLD)]. And he
goes out there with this gun and he just mows these people down. Because if it
was just a robbery, that they’re just going to rob him and they didn’t shoot him, he
didn’t point the gun, pull the trigger, and fire and fire and fire, you wouldn’t even
be here.
So I’m going to tell you I don’t know how many robberies we have in the
Hispanic community or in the inner city in Grand Rapids, but there are many,
many, many, many that occur that no one ever reports. These are the perfect
victims, right? I mean, they don’t want to draw attention to themselves. If they’re
just robbed are they going to call the police? They don’t even have good I.D.
Some of them are illegal. [One of the victims] tells you, you know, he’s not here
legally. He’s lived here for many years. They have lives here, but are they going
to risk being found out if they report anything like that because they’re robbed?
No. It’s kind of the cost of doing business. It’s kind of the risk of living in a city
where it happens all the time, especially to our Hispanic community.
Taken in context, the challenge remarks do not constitute an improper civic duty
argument. The argument did not inject issues broader than the guilt or innocence of defendant or
encourage the jury to suspend its power of judgment. Instead, it appears that the prosecutor’s
argument—albeit somewhat convoluted in its presentation—was that Rosado acting alone or
with another local member of the MLD would not have shot or killed the victims because he
would have had no need to do so. In this respect, it appears that the prosecutor was attempting to
explain the counterintuitive notion that Rosado—who was from the area and was in fact known
to several witnesses who testified at trial—would have no reason to shoot or kill the victims
because this robbery was not his “first rodeo” and he would thus have been well-aware that
robberies in the inner-city or against the Hispanic community often went unreported. This line
of reasoning served to explain why Rosado may have selected the particular victims in this case,
and it comported with Rosado’s testimony that, at the time of the robbery outside the party store,
he fired a warning shot into the air, but that he did not actually shoot any of the victims. In
contrast, defendant was from out-of-town and, according to the prosecutor’s theory of the case,
he unnecessarily escalated the offense to murder because he was “pumped up,” drunk, high, and
looking to impress those around him, which he did by killing two men and shooting three others.
In short, the prosecutor merely sought to argue that it was defendant, not Rosado, who escalated
the crime from an armed robbery to an actual shooting and a multiple homicide. In this context,
the prosecutor’s references to the Hispanic community was not an improper appeal for sympathy
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or an improper appeal to convict defendant as part of a civic duty in order to protect the Hispanic
community. Furthermore, even if some of the prosecutor’s remarks were gratuitous or could be
construed as the presentation of a civic duty argument, the trial court cured any resulting
prejudice by instructing the jury that the lawyers’ arguments were not evidence and that the
jury’s verdict should not be influenced by sympathy or prejudice. See People v Long, 246 Mich
App 582, 588; 633 NW2d 843 (2001).
Next, defendant argues that the prosecutor improperly appealed to the sympathy of the
jury by stating “[t]hank God I have no pictures” of the crime scene and “thank God” that one of
the victims did not suffer because he died almost instantly. More fully, the prosecutor stated:
[One of the victims was] shot in the head. Thank God - - I would say thank God
it was one shot that put him down instantly, you know tearing through his
brainstem, because he didn’t suffer.
***
Two counts of assault with intent to murder and two counts of felony firearm for
scene two. You know the victims here. Thank God I have no pictures.
Defendant contends that these remarks were intended to inflame the jury’s sympathies “by
emphasizing the horror and bloodiness of the crimes.”
Defendant’s claim in this respect is without merit. Regarding the first comment, the
prosecutor’s remarks regarding the victim’s instantaneous death, while gruesome, concerned
facts in evidence in light of ample testimony regarding the victims’ autopsies and the crime
scenes, and we see nothing improper in these remarks. As noted, the prosecutor has wide
latitude in respect to her argument and she was not required to confine those arguments to the
blandest of all possible terms. Aldrich, 246 Mich. App. at 112. Regarding the prosecutor’s thanks
to God that there were “no pictures” of the victims at the second crime scene to show the jury, in
context, this remark was not an appeal for sympathy or a comment on the gruesomeness of what
such images might have displayed. Rather, the prosecutor began her closing argument by noting
that she was using a PowerPoint presentation. She indicated that there were pictures of some of
the victims, but not all, and she explained that she only had pictures of the victims who died
because those were the victims present at the crime scene when technicians arrived, while those
victims who survived had been taken to the hospital. In short, her comment indicating that she
had no pictures of the victims at the second scene was merely a remark on the outcome of the
crime, i.e., that the victims injured in the second shooting were not dead. We see nothing
improper or inflammatory in these remarks. And, in any event, the trial court’s instruction that
the jury should not let its decision be influenced by sympathy or prejudice was sufficient to cure
any potential prejudice the comments may have had. See Long, 246 Mich. App. at 588.
Defendant next argues that the prosecutor impermissibly shifted the burden of proof by
arguing that it was “undisputed” and that there was “zero evidence” against a finding that the
crimes charged were actually committed. As noted, a prosecutor may not shift the burden of
proof by commenting on the defendant’s failure to present evidence or by implying that a
defendant must prove something or present a reasonable explanation for damaging evidence.
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Fyda, 288 Mich. App. at 464. However, a prosecutor may “observe that the evidence against the
defendant is uncontroverted or undisputed[.]” People v Godbold, 230 Mich. App. 508, 521; 585
NW2d 13 (1998). See also Fyda, 288 Mich. App. at 464. Here, the prosecutor permissibly
argued that the evidence was undisputed with respect to whether the charged crimes had been
committed and that the salient question was whether defendant was the person who committed
the crimes. This was consistent with defendant’s own stance at trial. That is, defendant did not
appear to challenge that the crimes had been committed; rather, consistent with the prosecutor’s
framing of the issue, defendant only appeared to argue that identity was at issue. Therefore,
these challenged remarks by the prosecutor did not constitute misconduct. Moreover, the trial
court instructed the jury on the elements of each offense, the applicable burden of proof beyond a
reasonable doubt, the presumption of innocence, and the fact that defendant did not have to
testify or prove anything. These instructions were sufficient to cure any potential prejudice. See
Long, 246 Mich. App. at 588.
Finally, defendant argues that the prosecutor improperly vouched for the credibility of
two witnesses, Antonio Jones and Detective Erik Boillat. First, with respect to Jones, the
prosecutor argued that he was “sincere” and, in making this argument, the prosecutor indicated
that Jones had no reason to lie and in fact cried while being questioned at an investigative
subpoena hearing because he did not want defendant to go to prison. As noted, although a
prosecutor may not vouch for witness credibility by implying that he or she possessed special
knowledge of the witness’s truthfulness, a prosecutor may argue from the evidence that a witness
should be believed. Thomas, 260 Mich. App. at 455; People v McGhee, 268 Mich. App. 600, 630;
709 NW2d 595 (2005). Facts regarding Jones’s close friendship with defendant as well as his
demeanor at the hearing were in evidence. Accordingly, the challenged argument was a fair
inference from facts in evidence. Because the challenged remark did not rely on the prosecutor’s
“special knowledge” of Jones’s truthfulness, it did not constitute misconduct.
Second, with respect to Detective Boillat, defendant argues that the prosecutor
improperly vouched for his credibility by indicating that he “is not deceptive.” Placing the
prosecutor’s remarks in context, with regard to Detective Boillat’s testimony concerning the
telephone records in this case, defense counsel accused Detective Boillat on cross-examination
of providing deceptive testimony. The prosecutor addressed this accusation during closing by
arguing that Detective Boillat’s testimony was accurate, not deceptive, because he based his
opinion on information he received from an ostensibly neutral software program and because he
took his job “very seriously,” which the prosecution argued the jury saw for themselves from the
detective’s demeanor when he testified. Cf. People v Stout, 116 Mich. App. 726, 730; 323 NW2d
532 (1982) (concluding prosecutor’s comments on a witness’s responses and demeanor were
proper). The prosecutor’s remarks were thus based on the evidence and not on her special
knowledge of Detective Boillat’s truthfulness. Therefore, we find that the prosecutor did not
improperly vouch for Detective Boillat’s credibility. See Thomas, 260 Mich. App. at 455;
McGhee, 268 Mich. App. at 630. Moreover, jurors are presumed to follow their instructions, and
the trial court instructed the jury that it alone could determine the credibility of witnesses. These
instructions cured any error relating to the prosecutor’s purported vouching for Jones and
Detective Boillat. See Long, 246 Mich. App. at 588.
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Affirmed.
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
/s/ Christopher M. Murray
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