People of Michigan v. Dylan Scott Bechaz ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 16, 2017
Plaintiff-Appellee,
v No. 331530
Emmet Circuit Court
DYLAN SCOTT BECHAZ, LC No. 15-004194-FH
Defendant-Appellant.
Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of delivering a controlled substance,
MCL 333.7401(2)(b)(ii). The trial court sentenced defendant to three months in jail. He appeals
his conviction by right, and we affirm.
Defendant argues that the prosecutor committed error1 by improperly bolstering
confidential informant Candace Causka’s credibility. Generally, we review prosecutorial error
arguments de novo to determine whether the defendant was denied a fair trial. People v
Dunigan, 299 Mich. App. 579, 588; 831 NW2d 243 (2013). Because there was no objection
raised below, our review is for plain error affecting defendant’s substantial rights. People v
Bennett, 290 Mich. App. 465, 475-476; 802 NW2d 627 (2010), citing People v Carines, 460 Mich.
750, 763; 597 NW2d 130 (1999).
1
Although this type of claim is generally referred to as “prosecutorial misconduct,” this Court
has stated that, “the term ‘misconduct’ is more appropriately applied to those extreme . . .
instances where a prosecutor’s conduct violates the rules of professional conduct or constitutes
illegal conduct,” but that claims “premised on the contention that the prosecutor made a technical
or inadvertent error at trial” are “more fairly presented as claims of ‘prosecutorial error[.]’ ”
People v Cooper, 309 Mich. App. 74, 87-88; 867 NW2d 452 (2015) (citation omitted).
Nevertheless, regardless of “what operative phrase is used, [this Court] must look to see whether
the prosecutor committed errors during the course of trial that deprived defendant of a fair and
impartial trial.” Id. at 88, citing People v Aldrich, 246 Mich. App. 101, 110; 631 NW2d 67
(2001). Here, we will refer to defendant’s claim as prosecutorial error, as the argument is limited
to technical errors by the prosecutor.
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Claims of prosecutorial error are reviewed on a case-by-case basis by examining the
record and evaluating the prosecutor’s remarks in context. People v Noble, 238 Mich. App. 647,
660; 608 NW2d 123 (1999). “[T]he prosecutor is permitted to argue the evidence and all
reasonable inferences arising from it.” People v Thomas, 260 Mich. App. 450, 454; 678 NW2d
631 (2004). Although a prosecutor cannot vouch for the credibility of a witness by implying that
he or she “has some special knowledge concerning a witness’ truthfulness,” People v Bahoda,
448 Mich. 261, 276; 531 NW2d 659 (1995), the prosecutor may comment on the credibility of
prosecution witnesses during closing argument, “especially when there is conflicting evidence
and the question of the defendant’s guilt depends on which witnesses the jury believes,” Thomas,
260 Mich. App. at 455.
Defendant asserts that the prosecutor improperly questioned Deputy Crowe about
Causka’s previous service as a confidential informant, which resulted in testimony that she had
participated in one other controlled drug buy that led to an arrest, and that she had not been paid
or promised anything for her cooperation. In so doing, however, the prosecutor did not
improperly imply that he had special knowledge of Causka’s credibility. Indeed, the record
shows that when the prosecutor attempted to do so by asking whether there was anything about
the deputy’s experience with Causka that led him to feel “that she was not credible or dishonest,”
defense counsel objected and the court sustained the objection, stating: “Jury, disregard that
testimony about his views of the honesty of the confidential informant in this case. It’s up to you
to judge credibility. The witness is not competent to testify to that.” Thus, even if the
prosecutor’s statements regarding Causka’s impartiality had constituted improper bolstering of
her credibility, this curative instruction, along with the later reminder to the jury that the
prosecutor’s arguments are not evidence, alleviated any potential prejudicial effect. People v
Callon, 256 Mich. App. 312, 329-330; 662 NW2d 501 (2003).
Defendant also asserts that the prosecutor again improperly bolstered Causka’s credibility
during his closing argument by stating:
So when you look at the credibility of witnesses, as the jury instruction will tell
you, look at who are the witnesses who are corroborated. One is not a drug
dealer. One is not a drug user. One only got involved to help her baby’s father.
She got nothing for it. She wasn’t promised anything. Her senses were clear that
night. She didn’t use drugs. She has absolutely no interest in the outcome of this
case. She reported it to the police in specific detail within moments of the crime;
not four, six or eleven months later like their witnesses. She’s not involved in the
drug world but for the bad judgment of being with Damien May. She didn’t have
criminal charges pending. She doesn’t have criminal charges pending currently;
has never had criminal charges pending; has not had any cases dismissed against
her for her help or reoperation; who is raising a baby on her own; not using drugs;
who is articulate and was willing to wear a wire that night knowing that her every
word is being recorded, and theirs. . . . [Why] then would she come back and tell
the police that [defendant] wrapped up the 25-I and gave it to her. Why would
she say that if it’s false when she knows she’s being recorded?
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However, these statements were based on inferences drawn from the evidence and constituted
permissible comment on the credibility of a prosecution witness during closing argument.
Thomas, 260 Mich. App. at 454-455. Accordingly, no plain error occurred.
Defendant also objects to the prosecutor’s comments during closing argument that
Causka was brave to have served as a confidential informant and come to court to testify, which
he contends was an improper appeal to the jury’s sympathy. While it is well established that a
prosecutor may not appeal to the jury’s sympathy for the victim of the crime at issue, People v
Meissner, 294 Mich. App. 438, 456; 812 NW2d 37 (2011), defendant offers no authority for the
proposition that appeals to sympathy for a witness constitute misconduct. In any event, the
prosecution was asking the jury to consider the circumstances of Causka’s involvement in the
controlled purchase and her coming to trial to provide her testimony. The argument did not
imply that the prosecutor had special knowledge that Causka was truthful, and was permissible
comment on her credibility based on the evidence in the record.
Defendant also argues that his trial counsel was ineffective for failing to object to the
prosecutor’s remarks regarding Causka. However, as discussed, the prosecutor’s remarks were
permissible and did not constitute misconduct. “Failing to advance a meritless argument or raise
a futile objection does not constitute ineffective assistance of counsel.” People v Ericksen, 288
Mich. App. 192, 201; 793 NW2d 120 (2010). Further, even if the prosecutor’s comments
regarding Causka during closing arguments had been improper, trial counsel’s decision not to
object could have been a matter of strategy designed to avoid drawing attention to an improper
comment. Bahoda, 448 Mich. at 287 n 54. “[D]eclining 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), and a reviewing court will not substitute its judgment for
counsel’s on matters of strategy, People v Rockey, 237 Mich. App. 74, 76-77; 601 NW2d 887
(1999).
Affirmed.
/s/ David H. Sawyer
/s/ Christopher M. Murray
/s/ Elizabeth L. Gleicher
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