People of Michigan v. Darryl Anthony Warren ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 16, 2015
Plaintiff-Appellee,
v No. 318968
Kent Circuit Court
DARRYL ANTHONY WARREN, LC No. 12-005712-FC
Defendant-Appellant.
Before: OWENS, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of armed robbery,
MCL 750.529, one count of first-degree home invasion, MCL 750.110a, one count of conspiracy
to commit armed robbery, MCL 750.157a, and one count of possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b. We affirm.
This case involves a home invasion allegedly conspired by defendant and four other men
to rob a medical marijuana user of his plants and other medications, as well as some jewelry and
electronics. One of the codefendants dated the daughter of one of the occupants of the home,
and provided information regarding the layout and contents of the home. Defendant raises issues
in a brief filed by appellate counsel, as well as in propria persona in his supplemental brief, filed
pursuant to Supreme Court Administrative Order No. 2004–6, Standard 4.
I. APPELLATE BRIEF ISSUES
A. OTHER ACTS EVIDENCE
First, defendant argues in his appellate brief filed by counsel that the trial court erred by
admitting evidence of defendant’s prior conviction of accessory after the fact to armed robbery.1
We disagree. We review a trial court’s decision whether to admit or exclude evidence for an
abuse of discretion. People v Mardlin, 487 Mich. 609, 614; 790 NW2d 607 (2010). We review
1
Defendant also challenges, for similar reasons, the trial court’s decision to admit his prior
conviction in his supplemental brief.
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de novo preliminary questions of law, such as whether a rule of evidence precludes admission.
Id.
MRE 404(b)(1) provides,
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
The Supreme Court “unanimously confirmed that the opinions in People v VanderVliet,
444 Mich. 52; 508 NW2d 114 (1993), amended 445 Mich. 1205; 520 NW2d 338 (1994), People v
Crawford, 458 Mich. 376; 582 NW2d 785 (1998), and People v Sabin (After Remand), 463 Mich.
43; 614 NW2d 888 (2000), ‘continue to form the foundation for a proper analysis of MRE
404(b).’ ” Mardlin, 487 Mich. at 609 n 6, quoting People v Knox, 469 Mich. 502, 510; 674 NW2d
366 (2004). The Court provided the following MRE 404(b) analysis, summarizing the principles
set forth in those cases:
To admit evidence under MRE 404(b), the prosecutor must first establish
that the evidence is logically relevant to a material fact in the case, as required by
MRE 401 and MRE 402, and is not simply evidence of the defendant’s character
or relevant to his propensity to act in conformance with his character. The
prosecution thus bears an initial burden to show that the proffered evidence is
relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is
otherwise probative of a fact other than the defendant’s character or criminal
propensity. Evidence relevant to a noncharacter purpose is admissible under
MRE 404(b) even if it also reflects on a defendant’s character. Evidence is
inadmissible under this rule only if it is relevant solely to the defendant’s
character or criminal propensity. Stated another way, the rule is not exclusionary,
but is inclusionary, because it provides a nonexhaustive list of reasons to properly
admit evidence that may nonetheless also give rise to an inference about the
defendant’s character. Any undue prejudice that arises because the evidence also
unavoidably reflects the defendant’s character is then considered under the MRE
403 balancing test, which permits the court to exclude relevant evidence if its
“probative value is substantially outweighed by the danger of unfair prejudice....”
MRE 403. Finally, upon request, the trial court may provide a limiting instruction
to the jury under MRE 105 to specify that the jury may consider the evidence only
for proper, noncharacter purposes. [Mardlin, 487 Mich. at 615-616 (citations
omitted).]
The first inquiry, whether the prosecutor showed that defendant’s prior conviction is
relevant to a proper noncharacter purpose under MRE 404(b)(1), requires us to evaluate the
materiality and probative value of the evidence. Crawford, 458 Mich. at 388. “Materiality is the
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requirement that the proffered evidence be related to ‘any fact that is of consequence’ to the
action.” Id.
In this case, the prosecutor sought to admit evidence regarding defendant’s prior
conviction to show defendant’s intent, knowledge, and plan or scheme in committing an act. The
prosecutor noted that the defense’s theory was that defendant never intended to participate in the
armed robbery, he only agreed to go to the scene, and left the scene before his codefendants
committed the crime. Armed robbery is a specific intent crime that requires the prosecution to
show that defendant intended to permanently deprive the owner of the property. People v King,
210 Mich. App. 425, 428; 534 NW2d 534 (1995). Additionally, the crime of first-degree home
invasion may be established by showing, among other things, that defendant broke and entered
the dwelling intending to commit a felony. MCL 750.110a; People v Baker, 288 Mich. App. 378,
384-385; 792 NW2d 420 (2010). “It is well established in Michigan that all elements of a
criminal offense are ‘in issue’ when a defendant enters a plea of not guilty.” Crawford, 458
Mich. at 389. Therefore, defendant’s intent and knowledge were material to a fact of
consequence, specifically to show that he committed all the elements of the charged offenses
beyond a reasonable doubt.
“The probative force inquiry asks whether the proffered evidence tends ‘to make the
existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.’ ” Crawford, 458 Mich. at 389-390. Any
tendency is sufficient, but under MRE 404(b), the evidence “truly must be probative of
something other than the defendant’s propensity to commit the crime.” Id. at 390. For example,
in Crawford, the question was “whether the prosecutor carried its burden of demonstrating that
the defendant’s prior conviction establishes some intermediate inference, other than the improper
inference of character, which in turn is probative of the ultimate issues in this case, the
defendant’s knowledge of the presence of cocaine and his intent to deliver it.” Id. at 391.
In this case, the prosecution sought to admit the evidence of defendant’s prior conviction
to show that the conduct was very similar to the conduct of the charged offenses, in order to
show defendant’s intent and knowledge. The similarities between the past conduct and the
charged offenses were striking, as to establish a sufficient factual nexus between the two.
Crawford, 458 Mich. at 395-396. There was testimony that in both cases, defendant orchestrated
the plan. Specifically, he acted with his cousin and recruited others to help, he drove the car and
denied involvement in the act, he had inside information regarding the dwellings, and he went
out of his way to silence the others involved while in jail. Further, in both cases phones were
removed from the dwellings so the victims could not call the police and the suspects wore socks
on their hands. Thus, the proffered evidence was highly probative to show that defendant
employed a similar plan in doing an act in this case, see Mardlin, 487 Mich. at 621, and to
overcome the improper inference of character, see Crawford, 458 Mich. at 391. Therefore, the
trial court did not abuse its discretion in determining that the prosecutor established that
defendant’s prior conviction was relevant to a proper noncharacter purpose under MRE
404(b)(1).
However, in deciding to admit the proffered evidence, the trial court did not address the
second inquiry, i.e., whether the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice under MRE 403. VanderVliet, 444 Mich. at 74-75. Nevertheless,
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we conclude that although the trial court was required to consider the prejudicial effect of the
evidence, the failure to do so was harmless error. Specifically, the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403 does not
prohibit prejudicial evidence. Rather, it prohibits evidence that is unfairly prejudicial.
Crawford, 458 Mich. at 398. “Evidence is unfairly prejudicial when there exists a danger that
marginally probative evidence will be given undue or preemptive weight by the jury.” Id.
As discussed, in this case, the strong similarities between the past conduct and conduct of
the charged offenses was highly probative to show that defendant employed a similar plan in
doing an act in this case. Although the conduct leading to defendant’s prior conviction occurred
in 2001, given the similarities between the past conduct and the conduct of the charged offenses,
the factual relationship of the evidence was not too remote to draw a permissible intermediate
inference of defendant’s intent in the present case. Cf. id. at 395-396 (finding that where the past
conduct was factually dissimilar, the factual relationship between the prior conviction and
charged offense was too remote for the jury to draw a permissible intermediate inference of the
defendant’s intent). In this case, the strong similarities between the conduct likely overshadowed
any impermissible character evidence.
Further, although the prosecutor did emphasize defendant’s prior conviction during
closing argument to show the similarities to the charged offenses and to argue that defendant was
the mastermind in the present case, unlike in Crawford, the evidence was not “paraded” in front
of the jury throughout the entire trial. Crawford, 458 Mich. at 400 n 17. Rather, the evidence
was not presented until the last day of the seven-day trial, and the first six days involved the
testimony of numerous witnesses to the charged offenses. Moreover, the prosecutor gave a long
closing argument in which she detailed all the other evidence presented and argued that there
was sufficient evidence in the witnesses’ testimony to convict defendant beyond a reasonable
doubt. Additionally, the trial court provided limiting instructions to the jury before the testimony
regarding defendant’s prior conviction and in the closing jury instructions.
Finally, there was sufficient evidence to convict defendant beyond a reasonable doubt
without the proffered evidence. As stated in Crawford, “Error requires reversal only if it is
prejudicial. The prejudice inquiry focuses on the nature of the error and assesses its effect in
light of the weight and strength of the untainted evidence.” Crawford, 458 Mich. at 399-400
(internal quotations and citation omitted). The prosecution presented approximately 15
witnesses who could link defendant to the charged offenses. Given that credibility is for the jury
to decide, People v Unger (On Remand), 278 Mich. App. 210, 222; 749 NW2d 272 (2008), these
witnesses provided substantial evidence to prove defendant guilty of the charged offenses
beyond a reasonable doubt, without the proffered evidence. Therefore, we conclude that the trial
court did not abuse its discretion by admitting evidence of defendant’s prior conviction under
MRE 404(b).
B. PROSECUTORIAL MISCONDUCT
Next, defendant argues that the prosecutor committed misconduct during rebuttal closing
argument by appealing to the jury’s civic duty when she stated, “don’t let [defendant] get away
with it.” We disagree. Because defendant failed to preserve this issue for appellate review by
timely and specifically objected to the error below, Unger, 278 Mich. App. at 234-235, we review
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this issue for plain error affecting defendant’s substantial rights. People v Thomas, 260 Mich
App 450, 453-454; 678 NW2d 631 (2004). Reversal is only warranted if defendant was actually
innocent and the plain error caused defendant to be convicted or “if the error ‘seriously affected
the fairness, integrity, or public reputation of judicial proceedings,’ regardless of defendant’s
innocence.” Id. at 454, quoting People v Ackerman, 257 Mich. App. 434, 449; 669 NW2d 818
(2003).
“Given that a prosecutor’s role and responsibility is to seek justice and not merely
convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). “Issues of
prosecutorial misconduct are decided case by case, and this Court must examine the entire record
and evaluate a prosecutor’s remarks in context.” Id. at 64.
The alleged misconduct occurred during the prosecutor’s rebuttal closing argument:
In the end of the closing argument by the defense, the thing that struck me
the most like a hammer to the head was what a waste. What a waste, huh? A
mind is a beautiful thing or a terrible thing to waste. This defendant clearly is an
intelligent, articulate guy. He unfortunately has used his God-given talent to
commit crime.
And he manipulated and schmoozed and talked and whatever his way into
accessory after the fact the first time. But he won’t do that again. He obviously
didn’t get what he wanted, or we wouldn’t be here.
Don’t let him get away with this again. Find him guilty of armed robbery,
home invasion, and conspiracy to commit armed robbery, and felony firearm,
because he had every chance to pull out if he wanted to.
And this is the man—this is the man who called the shots, and he is still
doing it to this very day. Don’t let him get away with it. Find him guilty.
[Emphasis added.]
While prosecutors are afforded great latitude in their arguments, “it is improper for a
prosecutor to appeal to the jury’s civic duty by injecting issues broader than guilt or innocence or
encouraging jurors to suspend their powers of judgment.” Thomas, 260 Mich. App. at 455-456.
By saying, “don’t let him get away with it,” the prosecutor, to an extent, did cross the line into a
civic duty argument. However, a prosecutor’s remarks must be evaluated in light of defendant’s
arguments, id. at 454, and “an otherwise improper remark may not rise to an error requiring
reversal when the prosecutor is responding to the defense counsel’s argument.” People v
Kennebrew, 220 Mich. App. 601, 608; 560 NW2d 354 (1996).
Defendant’s theory was that he was not involved in the armed robbery and home
invasion, and that while he agreed to drive to the scene, he left when he realized what the others
were going to do. Defense counsel read a closing argument prepared by defendant, in which he
accused most of the witnesses of lying and accused the prosecution of intimidating witnesses.
He also used the closing argument to provide his own account of what happened, despite the fact
he did not testify, and in doing so, he also referenced many statements and facts not in evidence.
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Further, he requested that the jury never lose sight of the goal, which is justice, and to “send this
innocent man home to his family.” Therefore, when taken in context, it seems the prosecutor
was attempting to respond to defendant’s closing argument by arguing that defendant was
essentially the mastermind and knew how to manipulate the system, given that the evidence
showed that he coordinated an armed robbery years prior, yet received a lesser conviction. The
prosecutor’s statements were responsive to defendant’s arguments and a fair comment on the
evidence presented. Thomas, 260 Mich. App. at 456. The statements were made during rebuttal
and did not appear to be an attempt by the prosecutor to inject issues broader than guilt or
innocence or to encourage jurors to suspend their powers of judgment. Id. Finally, any minimal
prejudice that could have been caused by these brief statements was cured by the trial court’s
instructions to the jury. Id. Accordingly, we conclude that defendant has failed to establish an
instance of prosecutorial misconduct warranting relief.
II. SUPPLEMENTAL BRIEF ISSUES
A. PROSECUTORIAL MISCONDUCT
Defendant also asserts claims of prosecutorial misconduct in his supplemental brief.
Because defendant failed to preserve any of the claims at trial, our review is for plain error
affecting defendant’s substantial rights. Thomas, 260 Mich. App. at 453-454. We conclude that
defendant has failed to establish any instances of prosecutorial misconduct warranting relief.
Defendant first argues that the prosecutor knew that one of the codefendants, Nicholas
Green, falsified the details of his plea agreement and rather than correct the error the prosecutor
bolstered it. A “prosecutor may not knowingly use false testimony to obtain a conviction” and
has a duty to correct false testimony, especially as it relates to a witness’s credibility. People v
Lester, 232 Mich. App. 262, 276-277; 591 NW2d 267 (1998), overruled on other grounds by
People v Chenault, 495 Mich. 142; 845 NW2d 731 (2014).
At trial, Green testified that he pleaded guilty to conspiracy to commit armed robbery and
was sentenced to serve 4 to 40 years in prison. He testified that he thought he only “got a few
months off” for testifying, because his minimum sentencing guidelines were 51 to 85 months.
On appeal, defendant argues that this statement was a “gross misrepresentation and wholly
false.” However, other than to state that Green had other charges dismissed, defendant does not
explain how much of a lesser sentence Green received for testifying. On this record, Green did
receive a downward departure of a few months when his minimum sentence of 4 years is
compared to the minimum guidelines range of 51 months. Accordingly, there is no indication
that Green testified falsely with regard to his plea deal. Further, even if Green gave false
testimony, there is not a “reasonable likelihood that the false testimony could have affected the
judgment of the jury.” People v Aceval, 282 Mich. App. 379, 389; 764 NW2d 285 (2009)
(internal quotation marks and citation omitted). The fact that Green received leniency for
testifying was still made known to the jury and directly affects his credibility.
Second, defendant argues that the prosecutor knowingly misrepresented his prior
conviction when obtaining its admissibility under MRE 404(b), because she had a duty to know
the evidence. However, on this record, there is no indication that the prosecutor intentionally
misrepresented defendant’s prior conviction. When defense counsel argued the motion to
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exclude the evidence under MRE 404(b), even she did not reference the correct conviction. It
was not until a week later, that both the prosecutor and defense counsel reviewed the file and
learned that defendant had pled guilty to accessory after the fact and not conspiracy to commit
armed robbery. Further, as the trial court correctly noted, a conviction was not necessary to
admit evidence of defendant’s past conduct under MRE 404(b). Accordingly, there is no
indication that defendant was denied a fair trial in this regard.
Third, defendant argues that prosecutor mischaracterized the evidence numerous times.
To support this argument, defendant asks this Court to compare numerous transcript citations of
statements made during the prosecutor’s opening statement and closing argument to the actual
testimony. “Opening statement is the appropriate time to state the facts that will be proved at
trial.” People v Ericksen, 288 Mich. App. 192, 200; 793 NW2d 120 (2010). A review of the
prosecutor’s opening statement does not indicate misconduct. Rather, “the prosecutor was
simply summarizing the anticipated testimony” and “providing a fair view of what the evidence
would show.” Id.
Likewise, a review of the prosecutor’s closing argument does not indicate misconduct.
“A prosecutor may not make a factual statement to the jury that is not supported by the evidence,
but he or she is free to argue the evidence and all reasonable inferences arising from it as they
relate to his or her theory of the case.” Dobek, 274 Mich. App. at 66 (internal citations omitted).
The record shows that the prosecutor was simply arguing the evidence and any reasonable
inferences. While some of the citations to the testimony that defendant provided did not support
what the prosecutor said during opening statement or closing argument, a review of the record
indicates that the prosecutor’s characterization of the evidence came from testimony of other
witnesses not cited by defendant and reasonable inferences from all of the evidence presented.
Simply because those inferences may be different than defendant’s inferences does not make
them unreasonable as to amount to misconduct.
Fourth, defendant argues that the prosecutor intimidated witnesses. He first asserts that
the prosecutor forced all the witnesses to testify at the investigative subpoena hearings by
threatening them with perjury charges. Defendant cites the transcripts of some of the witnesses’
investigative subpoena hearings, but fails to provide those to this Court for review. As the
appellant, defendant has the burden “of furnishing the reviewing court with a record to verify the
factual basis of any argument upon which reversal was predicated.” People v Elston, 462 Mich.
751, 762; 614 NW2d 595 (2000). Therefore, we decline to address this claim.
Defendant also asserts that the prosecutor intimidated one witness, Monique Gilmore,
into testifying at trial. However, the record does not support this assertion. From the beginning
of her testimony, it was clear that Gilmore was hesitant to testify and would only respond with
one or two words. The prosecutor was having a difficult time getting her to answer the questions
in their entirety, and after many attempts, the trial court allowed the prosecutor to ask leading
questions, and essentially treat the witness as a hostile witness, which is permitted under MRE
611(d)(1). On appeal, defendant does not specifically challenge this decision.
Further, it is evident from the record that any hesitancy Gilmore displayed in testifying
was caused by defendant’s behavior and not a result of intimidation by the prosecutor. The
record reveals that defendant called Gilmore fifty times since he was incarcerated, blaming her
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for putting him in jail. Based on comments made by the prosecutor during Gilmore’s testimony,
it is evident that while testifying, Gilmore would look to defendant with hesitancy before
speaking. Moreover, Gilmore testified on direct examination that she did not feel pressured to
testify at trial. Although she stated on cross-examination that she felt pressure to testify during
the investigative subpoena hearing, she also stated that she answered the questions truthfully,
with the exception of what she meant by the phrase “hit a lick,” and that she did not “find herself
just agreeing with what [the prosecutor and detective] said.” Accordingly, on this record, there is
no indication that the prosecutor intimidated Gilmore into testifying.
Fifth, defendant argues that the prosecutor appealed to the jury’s sympathy during
opening statement by providing the background of the victims and what type of people they
were, by stating that one of the victims had scoliosis and is permanently disabled, and by stating
that the victims were terrorized by the robbery. However, when read in context, it appears that
the prosecutor provided the background information of the victims to show that one of the
victims was legally authorized to grow medical marijuana and that the victims were not the type
of people to be involved in illegal drug usage. There is no indication that the prosecutor’s
statement was a blatant appeal to the jury to sympathize with the victims, and the statements
were “not so inflammatory as to prejudice defendant.” People v Watson, 245 Mich. App. 572,
591; 629 NW2d 411 (2001).
Defendant also argues that the prosecutor injected race into the trial during opening
statement by repeating a comment made by one of the codefendants, Darell Boyd to Green that
Boyd regretted not “killing the honkey.” However, “the prosecutor was simply summarizing the
anticipated testimony,” Ericksen, 288 Mich. App. at 200, and defendant does not explain how this
isolated statement that reflected the evidence injected race into the trial.
Defendant further argues that the prosecutor used the opening statement to comment on
the credibility of witnesses, alluded to facts not in evidence, and manipulated evidence.
However, defendant provides no citations to the record to support these assertions. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480
(1998). Therefore, we decline to address this issue.
Moreover, the trial court instructed the jury that the attorneys’ statements were not
evidence, which is sufficient to cure any minimal prejudice that might have been caused by the
statements made during the prosecutor’s opening statement. Thomas, 260 Mich. App. at 456.
Finally, defendant argues that throughout trial the prosecutor did not allow the jury to
evaluate the evidence for themselves, bolstered witness testimony, vouched for the credibility of
the witnesses, expressed her personal belief as to the credibility of the witnesses, and provided
her opinion on disputed facts. To support these assertions, defendant provides over 100 citations
to the record, but fails to explain how each citation referenced amounts to prosecutor
misconduct. We will not rationalize the basis for defendant’s claims; therefore, we decline to
address this issue. Kelly, 231 Mich. App. at 640-641.
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In sum, we conclude that defendant has failed to establish any instances of prosecutorial
misconduct warranting relief.
B. INACCURATE TRIAL TRANSCRIPTS
Next, defendant asserts that a remand is necessary to correct omissions in the trial
transcripts. We disagree. There is presumption that the transcripts provided are accurate. This
Court has stated,
to overcome the presumption of accuracy and be entitled to relief, a petitioner
must satisfy the following requirements: (1) seasonably seek relief; (2) assert with
specificity the alleged inaccuracy; (3) provide some independent corroboration of
the asserted inaccuracy; (4) describe how the claimed inaccuracy in transcription
has adversely affected the ability to secure postconviction relief pursuant to
subchapters 7.200 and 7.300 of our court rules. [People v Abdella, 200 Mich. App.
473, 476; 505 NW2d 18 (1993).]
First, defendant did not seasonably seek relief with the trial court. There is no indication
that the defendant demanded a review of the audiotapes or even brought the issue to the trial
court’s attention. See id. Further, defendant did not provide any independent corroboration of
the asserted inaccuracies. This Court observed that a defendant may provide independent
corroboration of an asserted inaccuracy by submitting “affidavits of witnesses, trial spectators,
police officers, court personnel, or attorneys,” or through “references to police reports or
preliminary examination transcripts, or perhaps to trial circumstances that demonstrate the
position of the petitioner, such as noting that if the witness whose testimony is claimed to have
been transcribed inaccurately had actually testified as transcribed, then the final arguments
would have been different.” Id. at 476 n 2. Finally, other than to assert that he wanted to use the
omissions to show that the prosecution vouched for the credibility of witnesses and intimidated
witnesses, and to argue defense counsel was ineffective, defendant does not explain on appeal
how the inaccuracies adversely affect his ability to secure postconviction relief. Essentially,
defendant only seeks a remand, which this Court already denied,2 and because defendant has not
asserted any alleged inaccuracy with specificity, or submitted any affidavit or other offer of
proof in support of the existence of any specified inaccuracy, he has not demonstrated that a
remand is necessary. See MCR 7.211(C)(1)(a).
C. UNLAWFUL SEARCH AND SEIZURE
Next, defendant argues that he was subjected to an unlawful search and seizure when the
detectives searched his jail cell and confiscated confidential attorney-client communications that
revealed his defense strategy. We disagree. “A determination regarding whether a party has
received due process is a question of law reviewed de novo.” People v Odom, 276 Mich. App.
407, 421; 740 NW2d 557 (2007).
2
People v Warren, unpublished order of the Court of Appeals, entered November 13, 2014
(Docket No. 318968).
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Both the United States Constitution and the Michigan Constitution guarantee the right of
persons to be secure against unreasonable searches and seizures. US Const, Am IV; Const 1963,
art 1, § 11. However, it is well-settled “that prisoners have no legitimate expectation of privacy
and that the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison
cells.” Hudson v Palmer, 468 U.S. 517, 530; 104 S. Ct. 3194; 82 L. Ed. 2d 393 (1984). This rule
has been extended to “pretrial detainees and inmates confined in jails.” People v Phillips, 219
Mich. App. 159, 162; 555 N.W.2d 741 (1996). Thus, to the extent defendant argues that he was
subjected to an unreasonable search in his jail cell, his argument is without merit.
However, government intrusion into confidential attorney-client communications may
violate a defendant’s right to the effective assistance of counsel under the Sixth Amendment.
Weatherford v Bursey, 429 U.S. 545, 558; 97 S. Ct. 837; 51 L. Ed. 2d 30 (1977). This depends on
whether the intrusion was purposeful and whether the prosecution obtained evidence of the
defense strategy. Id.; see also Arizona v Pecard, 196 Ariz 371, 377; 998 P.2d 453 (1999).
In this case, although the intrusion into defendant’s cell was intentional, the purpose was
not to intercept attorney-client communications, but to look for letters exchanged between the
codefendants in the case. As soon as the prosecutor was made aware via a telephone call from
the detective conducting the search that some of the documents recovered from defendant’s jail
cell were police reports and witnesses statements, and there were also documents that contained
defendant’s handwritten notes, the prosecutor specifically instructed the detective to immediately
seal any documents that may resemble legal correspondence and turn it over to defense counsel.
The documents were out of defendant’s possession for two days, and defendant acknowledged
that nothing was missing. There is no indication on this record that the prosecutor received any
evidence of the defense strategy or confidential attorney-client communications. Weatherford,
429 U.S. at 558.
D. RIGHT TO SPEEDY TRIAL
Next, defendant argues that he was denied his constitutional right to a speedy trial. We
disagree. Whether a defendant is denied the right to a speedy trial is an issue of constitutional
law that this Court reviews de novo. People v Williams, 475 Mich. 245, 250; 716 NW2d 208
(2006).
Criminal defendants are guaranteed the right to a speedy trial, US Const, Am VI, Const
1963, art 1, § 20, which is enforced by statute, MCL 768.1, and court rule, MCR 6.004(A).
Williams, 475 Mich. at 261. “The time for judging whether the right to a speedy trial has been
violated runs from the date of the defendant’s arrest.” Id. This Court balances four factors,
known as the Barker3 factors: “(1) the length of delay, (2) the reason for delay, (3) the
defendant’s assertion of the right, and (4) the prejudice to the defendant.” Id. at 261-262.
Prejudice is presumed with a delay of 18 months or more. Id. at 262.
3
Barker v Wingo, 407 U.S. 514; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972).
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First, the length of defendant’s delay was approximately 14 months; therefore, prejudice
is not presumed.
Second, the reasons for the delay are most attributable to delays inherent in the court
system. The trial was originally scheduled for January 21, 2013, but had to be adjourned three
times due to the unavailability of the trial judge, who, twice, was in trial on other cases.
“Although delays inherent in the court system, e.g., docket congestion, ‘are technically
attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight
in determining whether a defendant was denied a speedy trial.’ ” People v Gilmore, 222 Mich
App 442, 460; 564 NW2d 158 (1997), quoting People v Wickham, 200 Mich. App. 106, 111; 503
NW2d 701 (1993).
Third, defendant never properly asserted his right to a speedy trial. Defendant submitted
a handwritten motion and letter requesting a speedy trial that was received by the trial court on
January 15, 2013. However, it appears this handwritten motion and letter was sent to the trial
judge, as the record contains a letter from the judge to defendant indicating that the judge
received defendant’s letter requesting a speedy trial, but noted that as the presiding judge he
“cannot engage in ex parte communications or consider communications made to him outside the
presence of all of the parties.” The judge informed defendant that he could not consider his
request and that because he was represented by counsel, all communications with the trial court
needed to be handled by his attorney. Despite being informed by the trial court, defendant never
submitted a motion for a speedy trial through his counsel. Additionally, from the time of the first
adjournment to the trial, defendant never objected to any of the delays, and appears to have
accepted the trial dates that were offered after each adjournment.
Finally, with regard to prejudice to defendant, this Court has stated that “ ‘[t]here are two
types of prejudice which a defendant may experience, that is, prejudice to his person and
prejudice to the defense.’ ” Williams, 475 Mich. at 264, quoting People v Collins, 388 Mich. 680,
694; 202 NW2d 769 (1972). Defendant argues that but for the delay, his trial strategy would not
have been seized while he was incarcerated in jail. Therefore, he essentially argues that the
delay caused prejudice to his defense. However, as discussed above, there is no indication that
during the search of defendant’s jail cell any privileged attorney-client communication, including
trial strategy, was read by the prosecution. Nor has defendant shown how he was unable to
adequately prepare his case due to the delay. See Williams, 475 Mich. at 264. Accordingly, we
conclude that defendant’s constitutional right to a speedy trial was not violated.
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E. EVIDENTIARY ERRORS
Next, defendant argues that the trial court abused its discretion in making various
evidentiary rulings.4 We disagree. We review a trial court’s rulings regarding evidentiary
questions for an abuse of discretion. Mardlin, 487 Mich. at 614.
First, defendant argues that the trial court denied defendant’s due process rights and right
to present a defense when it prohibited defendant from admitting investigative subpoena
transcripts into evidence. Defendant argues that the transcripts would have allowed the jury to
properly weigh the evidence and were very important to the defense’s closing argument.
However, defendant merely asserts that the transcripts were admissible. He provides no
authority to support his position and does not explain how the trial court’s ruling was error.
Therefore, we need not consider this argument. See Kelly, 231 Mich. App. at 640-641. However,
we conclude that, based on the record, the trial court did not abuse its discretion in declining to
admit the transcripts. At trial, when seeking their admission, defense counsel failed to show how
the transcripts were relevant, i.e., how they had “any tendency to make the existence of any fact
that is of consequence to the determination of the action more or less probable than it would be
without the evidence,” MRE 401, and failed to argue how the transcripts, as extrinsic evidence of
a prior inconsistent statement, would be admissible under MRE 613(b).
Next, defendant argues that the trial court erred when it prohibited defendant from
inquiring into the details of an affidavit even though the prosecution used the affidavit to attack
defendant’s character as a manipulator. The affidavit in question was given to Monique Gilmore
by defendant to sign, essentially recanting all statements made to the police regarding
defendant’s involvement in the robbery. Gilmore admitted on direct examination that she signed
the affidavit, which was allegedly written by defendant. On cross-examination, defense counsel
sought to ask Gilmore questions regarding the content of the affidavit and to comment on its
truthfulness. The prosecutor objected, arguing that there was no foundation to read from the
affidavit when the witness had not written it. The trial court agreed and sustained the objection.
Defendant does not explain how this ruling was error and does not cite any authority to
support his argument. Therefore, we need not consider this argument. See Kelly, 231 Mich. App.
at 640-641. However, we note that defense counsel wanted Gilmore to testify as to the
truthfulness of the statements made in the affidavit, which was not written by her. This is a
classic example of hearsay. MRE 801(c). And given that it had not been proven at trial whether
defendant actually wrote the affidavit, the statements in the affidavit could not be admitted under
MRE 801(d)(2), as a party’s own statement. Therefore, there is no indication, on this record, that
the trial court abused its discretion in preventing Gilmore from testifying about the contents of
the affidavit.
4
We note that although defendant’s question presented states that the trial court made rulings
that prevented defendant from presenting his defense, in his brief, defendant makes no argument
as to how the alleged errors deprived him of a defense.
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Next, defendant argues that the trial court erred by allowing the prosecution to discuss a
codefendant’s conviction. The transcript citation defendant provides is a series of questions
where the prosecutor asks Nicholas Green about contact he has had with the codefendants in the
case while incarcerated to determine whether any of the codefendants had threatened Green. The
purpose in eliciting this information was to explain why Green had previously written a
statement that was inconsistent with his testimony, which Green explained was because he was
told by one of the codefendants that a hit would be put out on him.
Defendant asserts that the trial court erred because the evidence had no proper purpose
and was overly prejudicial. We disagree. The testimony was offered to show why Green had
previously made an inconsistent statement, which was highly relevant to Green’s credibility. See
People v King, 297 Mich. App. 465, 477; 824 NW2d 258 (2012) (“As the finder of fact, the jury is
generally entitled to weigh all evidence that might bear on the truth or accuracy of a witness’s
testimony.”).
Next, defendant argues that the trial court erred by repeatedly allowing the prosecutor to
lead the witnesses to the extent that it was the prosecutor testifying. Defendant cites numerous
pages of transcripts where he argues the prosecutor asked leading questions, but does not
actually identify specific questions. “[R]eversal is not required simply because leading questions
were asked during trial.” Watson, 245 Mich. App. at 587. Rather, defendant must “show some
prejudice or pattern of eliciting inadmissible testimony.” Id. (internal quotation marks and
citation omitted). There are definitely instances where the prosecutor asked leading questions;
however, the trial court sustained defense counsel’s objections and asked the prosecutor to
rephrase the question. Further, the trial court permitted the prosecutor to ask Monique Gilmore
leading questions because, given her hesitancy to testify, it was necessary to develop her
testimony, which is proper under MRE 611(d)(1). Given that defendant does not even identify
specific leading questions, it is clear that he has failed to demonstrate any prejudice or a pattern
of eliciting inadmissible testimony. Therefore, there is no error requiring reversal.
Finally, defendant argues that the trial court also erred by allowing a witness to state his
opinion on defendant’s guilt. However, the witness defendant refers to, Anthony Lackey, was
not asked whether defendant was guilty. Rather, he testified as to what he knew regarding
defendant’s involvement in the robbery. His testimony that defendant was involved was based
on statements made to him by defendant, stolen items he saw in defendant’s presence, and the
fact that he was asked to participate in the robbery, but he did not do so. Accordingly, the trial
court did not err in this regard.
In sum, we conclude that defendant has not identified any evidentiary errors warranting
relief.
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F. BRADY VIOLATION
Next, defendant asserts a Brady5 violation, arguing that the prosecutor withheld valuable
evidence from trial, which included the investigative subpoenas of three witnesses, and the
recorded interviews of four other witnesses. We disagree. To establish a Brady violation,
defendant must show that “(1) the prosecution has suppressed evidence; (2) that is favorable to
the accused; and (3) viewed in its totality, is material.” Chenault, 495 Mich. at 155.
Defendant has failed to show that the evidence in question was suppressed. He seems to
argue that because defense counsel did not cross-examine the witnesses regarding the
investigative subpoenas, that they were clearly withheld from the defense. However, defense
counsel sought admission of the transcripts of all the investigative subpoenas at trial. This
directly rebuts defendant’s claim that investigative subpoenas were withheld.
Additionally, with regard to the recorded interviews, defendant does not even know
whether the interviews were recorded. He merely states that the witnesses “all were said to have
been recorded while being interviewed,” but provides no proof that they actually were. Based on
the record, there is no indication that recorded interviews existed. Moreover, two of the
witnesses he mentions did not even testify at trial, and defendant provides no argument as to how
their interviews were favorable to the accused and why their interviews were material.
Therefore, defendant has failed to show that prosecutor suppressed evidence in violation of
Brady.
G. MIRANDA VIOLATION
Next, defendant argues that he did not effectuate a valid Miranda6 waiver. Defendant
argues that he invoked his right to remain silent upon arrest and asked for counsel repeatedly in
the interrogation room. He also argues that the detectives “deceptively signed” the rights card
when he never agreed to voluntarily talk. He does not argue, however, that his statements were
coerced in any way. He simply asserts that his waiver was involuntary. However, defendant has
waived any claim of error.
Waiver is defined as “the ‘intentional relinquishment or abandonment of a known right.’
” People v Carines, 460 Mich. 750, 762 n 7; 597 NW2d 130 (1999), quoting United States v
Olano, 507 U.S. 725, 733; 113 S. Ct. 1770; 123 L. Ed. 2d 508 (1993). “ ‘One who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those rights, for this
waiver has extinguished any error.’ ” People v Carter, 462 Mich. 206, 215; 612 NW2d 144
(2000), quoting United States v Griffin, 84 F 3d 912, 924 (CA 7, 1996). Defense counsel
5
Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963).
6
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
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stipulated at trial that the videotape of defendant’s interview showed that defendant was read his
rights and initialed the rights card, and defendant did not contest this at trial. This Court has
stated, “While the defendant must personally make an informed waiver for certain fundamental
rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be
effected by action of counsel.” Id. at 218. “[C]ounsel has full authority to manage the conduct
of the trial and to decide matter of trial strategy.” Id. at 218-219. Therefore, stipulating to the
contents of a videotape that defense counsel watched is a waiver that could be effected by the
action of defense counsel. See Id. Accordingly, because defense counsel stipulated that
defendant was read his rights and initialed the rights card indicating so, defendant cannot not
now claim error on appeal.7
H. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant argues that he was denied his right to the effective assistance of
counsel in various ways. We disagree. Our review is “limited to mistakes apparent from the
record,” People v Brown, 279 Mich. App. 116, 140; 755 NW2d 664 (2008), because defendant
was unable to demonstrate that further factual development of the record necessitated a remand.
People v Warren, unpublished order of the Court of Appeals, entered November 13, 2014
(Docket No. 318968). “The denial of effective assistance of counsel is a mixed question of fact
and constitutional law, which are reviewed, respectively, for clear error and de novo.” Brown,
279 Mich. App. at 140.
Criminal defendants have a right to the effective assistance of counsel under the United
States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. However,
effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012). To establish that a
defendant’s trial counsel was ineffective, a defendant must show: (1) that counsel’s performance
fell below an objective standard of reasonableness under prevailing professional norms and (2)
that there is a reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different. Strickland v Washington, 466 U.S. 668, 694; 104 S. Ct. 2052; 80 L. Ed.
2d 674 (1984). See also Vaughn, 491 Mich. at 669. Defendant must also overcome the strong
7
We also note that there is no indication on this record that defendant did not knowingly and
intelligently waive his rights. The detectives who interviewed defendant testified that defendant
did not ask for a lawyer when he was arrested; instead, he said, “Take me to jail.” The detectives
also testified that defendant initialed the advice of rights card that was read to him, which
indicated that his rights were read to him and that he waived those rights. Further, defendant’s
arguments on appeal indicate that he was well aware that he did not have to speak if he wished to
have counsel present; yet he acknowledges that he made statements during the interview, despite
claiming he kept insisting on counsel and knew that he did not have to speak. See People v
Cheatham, 453 Mich. 1, 29; 551 NW2d 355 (1996) (“To establish a valid waiver, the state must
present evidence sufficient to demonstrate that the accused understood that he did not have to
speak, that he had the right to the presence of counsel, and that the state could use what he said in
a later trial against him.”).
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presumption that counsel’s performance constituted sound trial strategy. People v Dixon, 263
Mich. App. 393, 396; 688 NW2d 308 (2004).
First, defendant argues that counsel was ineffective for failing to investigate a witness,
Edwin Gomez-Rivera. “Decisions regarding whether to call or question witnesses are presumed
to be matters of trial strategy.” People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623
(2012). “[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it
deprives the defendant of a substantial defense.” Dixon, 263 Mich. App. at 398. “A substantial
defense is one that might have made a difference in the outcome of the trial.” People v Kelly,
186 Mich. App. 524, 526; 465 NW2d 569 (1990). “Similarly, ‘[t]he failure to make an adequate
investigation is ineffective assistance of counsel if it undermines confidence in the trial’s
outcome.’ ” Russell, 297 Mich. App. at 717, quoting People v Grant, 470 Mich. 477, 493; 684
NW2d 686 (2004).
Defendant contends that Green lived with Rivera at the time of the robbery, and when
Green arrived at home later that evening, he told Rivera that defendant never committed the
robbery. Defendant argues that he was deprived of a substantial defense because Rivera’s
testimony would have undermined Green’s testimony, who was the only person tying defendant
to the alleged offenses. However, other than defendant’s speculation, defendant has not provided
an affidavit or offer of proof indicating what the proposed testimony would have been. People v
Davis, 250 Mich. App. 357, 369; 649 NW2d 94 (2002).
Further, assuming defendant’s claims regarding Rivera’s testimony were true, Rivera
would have testified regarding an out-of-court statement made by Green. The statement,
allegedly indicating that defendant did not commit the robbery, would have been offered to
prove that defendant did not in fact commit the robbery. This is a classic example of hearsay
testimony. Defendant provides no argument that this hearsay testimony would have been
admissible under any of the exceptions provided in the Michigan Rules of Evidence.8 Therefore,
defendant has not overcome the strong presumption that counsel’s failure to investigate or call
Rivera as a witness was sound trial strategy.
Next, defendant argues that counsel was ineffective for failing to move for a Walker9
hearing, with regard to the validity of his Miranda waiver. Defendant’s claim depends on
whether he can establish a valid basis to move for a Walker hearing. A Walker hearing is
designed to test the voluntariness of a confession. People v Ray, 431 Mich. 260, 269; 430 NW2d
8
Given that the robbery had ended several hours prior to Green returning home and Green did
not have any of the stolen items in his possession, it unlikely that any statements regarding
defendant’s involvement made to Rivera were made “during the course and in furtherance of the
conspiracy” as to fall under MRE 801(d)(2). Further, it would be difficult to admit the statement
under any of the exceptions listed in MRE 803, such as present sense impression or excited
utterance, given that the robbery and home invasion had occurred hours prior to Green returning
to Rivera’s townhouse and allegedly stating defendant was not involved in the robbery.
9
People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).
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626 (1988). However, defendant has failed to prove that a Walker hearing was necessary or
would have been successful where, as we have determined, the record indicates that defendant’s
statements were in fact voluntary. Further, although the portion of the interview that was played
for the jury was not transcribed or provided to this Court, there is no mention throughout the trial
that the tape even contained a confession by defendant, which is what a Walker hearing would
have addressed. Therefore, defendant has failed to show that counsel was ineffective for failing
to move for a Walker hearing. See People v Goodin, 257 Mich. App. 425, 433; 668 NW2d 392
(2003) (stating that defense counsel is not ineffective for failing to make a meritless motion).
Next, defendant argues counsel was ineffective for disclosing the defense strategy to the
prosecution a week before trial, thereby violating attorney-client privilege. However, defense
counsel revealed the defense to properly argue a motion to sever the trial of defendant and the
codefendants, as well as the motion to exclude the other-acts evidence. Defendant merely asserts
that there is no case law indicating that defense counsel must disclose the defense to properly
argue a 404(b) motion. He does not show how counsel’s actions did not constitute sound trial
strategy or provide an alternative argument counsel could have made in arguing the two motions.
Additionally, there is no indication that counsel violated attorney-client privilege when she only
revealed the defense’s theory of the case and did not discuss any confidential matters. Therefore,
defendant has failed to carry his burden to prove that counsel’s actions did not constitute sound
trial strategy.
Next, defendant claims that his attorney told him that he could prepare the closing
argument for her to read to the jury, which was done over the weekend. Defendant argues that
counsel was ineffective for informing the jury that defendant only provided his closing argument
shortly before it was read to the jury and that she did not read the argument as if she believed it.
However, defense counsel did not tell the jury that defendant provided the argument to her
shortly before it was read. Rather, she stated that defendant prepared a summary that he wanted
her to share with the jury and that he “put a great deal of thought and effort into this.” Although
she stated that the two of them were having a discussion throughout the prosecutor’s closing
argument, it in no way implied that defendant had just given her the statement to read.
Further, there is no indication that counsel did not read the closing argument as if she
believed it. Most of the argument was interrupted by the prosecutor’s objections, given that
there were many statements of facts not in evidence, which then prompted the trial court to
provide further instructions to the jury. It is very reasonable to assume that defense counsel had
difficulty reading a statement, which was not her own, when she was continuously interrupted.
Finally, given that the trial court continuously instructed the jury that the attorneys’ arguments
were not evidence, there is no indication that counsel’s reading of defendant’s statement in any
way prejudiced defendant or affected the outcome of the trial. Therefore, defendant has failed to
show how counsel was ineffective in this regard.
Next, defendant, who is African American, argues that counsel was ineffective for failing
to raise a Batson10 challenge. He argues that during the entire jury selection, only four African
10
Batson v Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986).
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Americans and one Hispanic were seated, and they were also struck by the prosecutor with
preemptory strikes. Defendant’s claim depends on whether he can establish a valid basis for a
Batson challenge.
The Equal Protection Clause of the Fourteenth Amendment prohibits a party from
exercising a peremptory challenge to remove a prospective juror solely based on race. Batson v
Kentucky, 476 U.S. 79, 86-87; 106 S. Ct. 1712; 90 L. Ed. 2d 69 (1986). In Batson, the United States
Supreme Court held that the party challenging the peremptory dismissal must first make a prima
facie showing of discrimination. Id. at 96. To do so, the opponent must show that: (1) he is a
member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to
exclude a member of a certain racial group from the jury pool; and (3) all of the relevant
circumstances raise an inference that the proponent of the challenge excluded the prospective
juror on the basis of race. Id.
Defendant has failed to establish a prima facie showing of discrimination. First, the fact
that defendant claims that only four African Americans and one Hispanic were seated during the
entire jury selection process likely indicates that there had been a small number of minorities in
the jury venire to begin with. Second, of the five minorities that defendant claims11 were
excused, one was excused for cause by the trial court on agreement of the parties due to a
medical condition and scheduled surgery. Of the other four, based on the record, the
circumstances do not raise an inference that the prosecutor excluded the prospective jurors on the
basis of race. Rather, based on the prospective jurors’ statements, there were other very valid
reasons as to why the prosecutor may have excused the jurors.
Specifically, one juror stated that he was unsure whether he could convict someone
without physical evidence. He also stated that his past drug usage compromised his ability to
listen and pay attention to detail. Another juror stated that he was very good friends with a
prison warden who was like a mother to him and that he was also convicted of a home invasion
at the age of 16, the same crime defendant was on trial for. Another juror stated that his brother
was wrongfully convicted in Kent County, where defendant was being tried, of an assault-related
crime and spent five years in prison. The last juror stated that he had family members who were
convicted of crimes and that he accused someone of a crime who was never convicted. He
indicated that these experiences made it uncertain whether he could be impartial and he had a
difficult time abiding by the presumption of innocence.
Finally, the prosecutor peremptorily excused other prospective jurors along with the
jurors that defendant claims were excused based on race. Presumably, because defendant did not
raise a challenge as to those prospective jurors, they were Caucasian. Therefore, on this record,
there is no basis for concluding that the circumstances surrounding the peremptory dismissal of
any minority juror raised an inference of discrimination, and defendant has not provided
evidence to the contrary.
11
The record does not disclose the race of the prospective jurors.
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Notably, although defendant claims that the final jury consisted of all Caucasians, our
Supreme Court stated in People v Knight, 473 Mich. 324, 349; 701 NW2d 715 (2005),
“[p]rotecting a defendant’s right to a fair and impartial jury does not entail ensuring any
particular racial composition of the jury. The goal of Batson and its progeny is to promote racial
neutrality in the selection of a jury and to avoid the systematic and intentional exclusion of any
racial group.” Therefore, the mere fact that minorities were not represented on the jury does not
provide a basis for raising a Batson challenge.
In sum, because defendant has not established a basis for concluding that defense counsel
could have raised a valid Batson challenge, defense counsel is not ineffective for failing to make
a meritless motion or objection. Goodin, 257 Mich. App. at 433.
Next, defendant argues that counsel was ineffective for failing to conduct an independent
investigation of defendant’s record when arguing the motion to exclude evidence of his prior
conviction, which then allowed counsel “to speak into the record a conviction that never
occurred.” While defense counsel should have known defendant’s prior conviction when
arguing the 404(b) motion, the fact that she referenced the wrong conviction did not prejudice
defendant. The conviction was discussed outside the presence of the jury, and thus, any
reference to the wrong conviction would not have affected the outcome of the trial. The other-
acts evidence concerned conduct that led to the conviction, and the fact that a conviction even
resulted was irrelevant for purposes of admitting the evidence under MRE 404(b). Finally, as far
as the record is concerned, the mistake was later corrected by the parties and noted on the record.
Therefore, defendant has failed to show defense counsel’s actions prejudiced him.
Next, defendant argues that counsel was ineffective for failing to impeach several
witnesses. Defendant identifies 13 witnesses and argues that there were written pretrial
statements, sworn depositions, police reports, and “case file discovery materials” that would
have impeached the testimony of those 13 witnesses. Defendant identifies the testimony which
he believes should have been impeached, but fails to identify what evidence would have
impeached that testimony. Defendant has failed to sufficiently support his argument; therefore,
we need not consider it. See Kelly, 231 Mich. App. at 640-641. Nevertheless, the record indicates
that defense counsel cross-examined all the witnesses and attempted to highlight any
inconsistencies in their testimony. Simply because defense counsel did not cross-examine the
witnesses on all contradictory aspects of their statements does not constitute ineffective
assistance of counsel. See People v McFadden, 159 Mich. App. 796, 800; 407 NW2d 78 (1987)
(“[W]e do not find that failure to impeach [a witness] on all contradictory aspects of his
preliminary examination and trial testimony was a serious mistake . . . . Rather, [counsel’s]
decision not to delve into all the differences constituted a matter of trial strategy for which this
Court will not substitute its judgment.”).
Finally, defendant argues that counsel was ineffective for failing to raise objections to the
various instances of prosecutorial misconduct. Defendant cites over 100 pages of transcripts
where he argues that defense counsel should have objected. The first set of transcript citations
reference the prosecutor’s opening statement. Defendant appears to argue that defense counsel
should have objected during the opening statement because the prosecutor manipulated and
falsified evidence. However, as discussed supra, a review of the prosecutor’s opening statement
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does not indicate misconduct. Accordingly, defense counsel is not ineffective for failing to make
meritless objections. Goodin, 257 Mich. App. at 433.
The second set of transcript citations reference various witness testimony. Defendant
appears to argue that there are many instances where the prosecutor manipulated evidence, stated
facts not in evidence, and bolstered witness testimony that defense counsel never objected to.
Other than to state in brackets after the referenced page numbers “facts not in evidence” or
“manipulation of evidence,” for example, defendant fails to explain how each citation referenced
amounts to prosecutor misconduct that defense counsel should have objected to. Because
defendant has failed to sufficiently support his argument, we need not consider it. See Kelly, 231
Mich. App. at 640-641. Nevertheless, we note that defendant references many of the same
citations as he did when asserting that the prosecutor committed misconduct, which as discussed
supra, there were no instances of prosecutorial misconduct warranting reversal. Accordingly,
defense counsel is not ineffective for failing to make meritless objections. Goodin, 257 Mich
App at 433.
For the reasons outlined above, we affirm defendant’s convictions.
Affirmed.
/s/ Donald S. Owens
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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