People of Michigan v. Davario Terrell Lipsey ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 11, 2017
Plaintiff-Appellee,
v No. 329875
Saginaw Circuit Court
DAVARIO TERRELL LIPSEY, LC No. 15-041309-FC
Defendant-Appellant.
Before: GADOLA, P.J., and JANSEN and SAAD, JJ.
PER CURIAM.
A jury found defendant guilty of four counts of assault with intent to commit murder,
MCL 750.83, one count each of carrying a dangerous weapon with unlawful intent, MCL
750.226, and felon in possession of a firearm (felon-in-possession), MCL 750.224f, and six
counts of possession of a firearm during the commission of a felony (felony-firearm), MCL
750.227b. The trial court sentenced defendant as an habitual offender, third offense, MCL
769.11, to life for each assault with intent to commit murder conviction, 4 to 10 years’
imprisonment for the carrying a dangerous weapon with unlawful intent conviction, 4 to 10
years’ imprisonment for the felon-in-possession conviction, and two years’ imprisonment for
each felony-firearm conviction. Defendant appeals as of right. We affirm.
I. FACTS
This case arises from an incident in which defendant fired gunshots in the direction of
three individuals, Jylan Jackson, Joslynn Humphrey, and an employee of an auto parts store who
was helping the two with a broken tie rod. None of the three individuals were struck, but a nine-
year-old girl in a nearby house was injured when a bullet entered her home. Defendant did not
dispute at trial that he was the shooter. His defense was that he abandoned the intent to kill
before he started shooting.
II. ANALYSIS
A. MOTION FOR NEW TRIAL
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Defendant first claims that the trial court abused its discretion by denying his motion for
new trial because he was denied the effective assistance of counsel when counsel pursued a
defense of lack of intent and conceded that defendant was the shooter instead of pursuing an
identity defense. We disagree.
We review for an abuse of discretion a trial court’s decision to deny a motion for a new
trial. People v Schrauben, 314 Mich. App. 181, 187; 886 NW2d 173 (2016). “The trial court
abuses its discretion when its decision falls outside the range of principled outcomes or when it
erroneously interprets or applies the law.” People v Lane, 308 Mich. App. 38, 51; 862 NW2d 446
(2014). Whether counsel was ineffective presents a mixed question of fact and constitutional
law, which we review, respectively, for clear error and de novo. People v LeBlanc, 465 Mich.
575, 579; 640 NW2d 246 (2002). “Clear error exists if the reviewing court is left with a definite
and firm conviction that the trial court made a mistake.” People v Armstrong, 490 Mich. 281,
289; 806 NW2d 676 (2011). Because no Ginther1 hearing was held, review of defendant’s claim
is limited to mistakes apparent from the record. Lane, 308 Mich. App. at 68.
“In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich. App. 38, 51; 826 NW2d 136 (2012). However, a particular strategy
does not constitute ineffective assistance of counsel simply because it does not work. People v
Matuszak, 263 Mich. App. 42, 61; 687 NW2d 342 (2004).
Identity is an essential element of a criminal prosecution. People v Yost, 278 Mich. App.
341, 356; 749 NW2d 753 (2008). Humphrey testified that she saw defendant’s face before she
started running, she identified the clothing the shooter was wearing, and she identified defendant
as the shooter in a photographic lineup. According to Jackson, he looked up and saw the shooter
aim a gun at him and start shooting. He gave a description of the shooter’s clothing that matched
the description given by Humphrey. Further, Troy McClain, an acquaintance of defendant,
testified that defendant told him details about the shooting that day and gave him a .40-caliber
Glock. A firearms and tool marks identification expert determined that the spent cartridge
casings found at the scene of the shooting were ejected from the .40 caliber Glock that was
retrieved from McClain’s residence. In the face of such evidence, defense counsel should not be
faulted for not advancing an identity defense.
Defense counsel conceded that defendant was the shooter during trial. Given the
overwhelming evidence that defendant was the shooter and assaulted the victims, the only
element left open for dispute was whether defendant had the requisite intent to murder the
victims. The fact that defense counsel’s strategy did not ultimately convince the jury did not
render his assistance ineffective. People v Russell, 297 Mich. App. 707, 715; 825 NW2d 623
(2012) (“This Court does not second-guess counsel on matters of trial strategy, nor does it assess
counsel’s competence with the benefit of hindsight.”). Furthermore, defendant cannot show a
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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reasonable probability that, but for defense counsel’s conduct, the result of the trial would have
been different considering the overwhelming evidence regarding defendant’s identity as the
shooter. Accordingly, defendant’s argument is without merit.
B. JURY INSTRUCTION ON DEFENSE OF ABANDONMENT
Defendant argues that the trial court erred by instructing the jury on the defense of
abandonment, M Crim JI 9.4, which was requested by the prosecution, and that defense counsel
rendered ineffective assistance by expressing agreement with the instructions and then making an
untimely objection to the instruction after closing arguments. We disagree.
We review de novo jury instruction issues involving questions of law. People v Dupree,
486 Mich. 693, 702; 788 NW2d 399 (2010). We review for an abuse of discretion a trial court’s
determination whether a jury instruction is applicable to the facts. Id.
“A defendant in a criminal trial is entitled to have a properly instructed jury consider the
evidence against him or her.” People v Dobek, 274 Mich. App. 58, 82; 732 NW2d 546 (2007). It
is the trial court’s duty to instruct the jury regarding the law applicable to the case. MCL 768.29.
“The instructions must include all elements of the charged offenses and any material issues,
defenses, and theories if supported by the evidence.” People v McGhee, 268 Mich. App. 600,
606; 709 NW2d 595 (2005).
“ ‘Abandonment is an affirmative defense, and the burden is on the defendant to
establish by a preponderance of the evidence voluntary and complete abandonment of a criminal
purpose.’ ” People v Akins, 259 Mich. App. 545, 555; 675 NW2d 863 (2003) (citation omitted).
M Crim JI 9.4 outlines that abandonment is a defense to an attempted crime, rather than a
completed crime. See M Crim JI 9.4. In this case, defendant was charged with completed
offenses. He was not charged with criminal attempt, nor did the court instruct on attempt to
commit an offense. Indeed, defendant objected to an instruction on abandonment as a defense
for this reason. Although defense counsel used the term “abandonment” in his opening
statement and closing remarks, it appears that defense counsel was arguing that defendant
abandoned the intent to murder before he started shooting and that he therefore lacked the
requisite intent to be found guilty of the crime. The trial court therefore abused its discretion by
instructing the jury on abandonment as a defense to attempt.
Instructional errors are presumed to be harmless, but the presumption may be rebutted by
a showing that the error resulted in a miscarriage of justice. Dupree, 486 Mich. at 710 (“Under
MCL 769.26, a preserved nonconstitutional error is not grounds for reversal unless, after an
examination of the entire cause, it affirmatively appears that it is more probable than not that the
asserted error was outcome determinative.”). Defendant argues that the erroneous instruction
was a miscarriage of justice because the example given in the instruction—“For example, a
person who abandons an attempt to kill after firing a shot at an intended victim may not use
abandonment as a defense to attempted murder”—prompted a directed verdict of guilty.
However, defendant was not charged with an attempt crime. Therefore, the defense did not
apply in the first instance, and defendant could not have abandoned it. Further, the trial court
properly instructed the jury on the elements of assault with intent to murder, the lesser offenses
of felonious assault and assault with intent to commit great bodily harm less than murder, and the
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element of intent. Defendant has failed to demonstrate that the error resulted in a miscarriage of
justice.
With respect to his argument that trial counsel was ineffective by failing to object to the
instruction before closing arguments, he has failed to establish that counsel acted in an
objectively unreasonable manner. Defense counsel explained that he had not raised an objection
sooner because he was at the trial when he was informed, via a fax sent to his office two days
prior, that the prosecution was seeking to instruct the jury pursuant to M Crim JI 9.4. Further,
one of the purposes of the requirement that an objection be timely is that a timely objection gives
the court an opportunity to address the issue before it has affected the trial. By raising the
objection before the instruction of the jury, the court was given the opportunity to address the
issue before it shaped the trajectory of the trial. Accordingly, we conclude that defendant’s
argument regarding the jury instructions is without merit.
C. PHOTOGRAPHIC LINEUP
Defendant argues that he was denied due process by an unduly suggestive photographic
lineup and that the trial court erred by failing to hold a Wade2 hearing with respect to
Humphrey’s identification of defendant as the shooter. We disagree.
Defendant did not challenge Humphrey’s pretrial identification or object to admission of
the identification testimony at trial, presumably because defendant conceded that he was the
shooter. Thus, there is no record for this Court to review and we decline to address this
unpreserved issue. See People v Lee, 391 Mich. 618, 626-627; 218 NW2d 655 (1974) (“We do
not examine the question of suggestiveness because there was no motion at trial to suppress the
photographic identification testimony, nor evidentiary hearing on this matter to give us a record
on which to make a judgment.”).
D. JAILHOUSE TELEPHONE CALLS
Defendant contends that the trial court erred by allowing the prosecution to play selected
portions of his recorded jailhouse telephone conversations in contravention of the “rule of
completeness.” We disagree.
Defendant failed to preserve the issue by objecting to the challenged evidence at trial.
See People v Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001) (“To preserve an
evidentiary issue for review, a party opposing the admission of evidence must object at trial and
specify the same ground for objection that it asserts on appeal.”). In fact, defense counsel
stipulated to the admission of the portions of the recordings, waiving the issue. See People v
Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000) (defining waiver as “the intentional
relinquishment or abandonment of a known right”) (citation and quotation marks omitted). To
2
United States v Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967).
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the extent that we review the issue, our review is for plain error affecting defendant’s substantial
rights. See People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
MRE 106 provides, “When a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction at that time of any other part or any
other writing or recorded statement which ought in fairness to be considered contemporaneously
with it.” The rule is “designed to prevent unfairness which may result if a statement is taken out
of context.” Moody v Pulte Homes, Inc, 125 Mich. App. 739, 747; 337 NW2d 283 (1983), rev’d
in part on other grounds 423 Mich. 150 (1985).
Defendant did not object when select portions of the recorded jailhouse telephone calls
were played in court. Indeed, defense counsel stipulated to the admission of the recordings. The
rule of completeness, therefore, is not pertinent with respect to the court’s actions. Nonetheless,
the entire recordings of the calls were admitted into evidence, and during jury deliberations the
jury requested the recordings and were provided the equipment to review them. Thus, defendant
has failed to demonstrate plain error affecting his substantial rights, nor has he shown that trial
counsel, who stipulated to the admission of the entire recordings, rendered ineffective assistance.
E. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present sufficient evidence to establish
beyond a reasonable doubt defendant’s identity as the shooter. We disagree.
We review de novo a challenge to the sufficiency of the evidence. People v Kosik, 303
Mich. App. 146, 150; 841 NW2d 906 (2013). “In reviewing the sufficiency of the evidence, this
Court must view the evidence in the light most favorable to the prosecution and determine
whether a rational trier of fact could find that the essential elements of the crime were proven
beyond a reasonable doubt.” Id. “However, we do not interfere with the factfinder’s role of
determining the weight of the evidence and the credibility of witnesses.” Id.
As stated above, identity is an element of every offense. See Yost, 278 Mich. App. at 356.
Defendant’s argument regarding identity fails because he conceded at trial that he was the
shooter. Further, the alleged deficiencies in Humphrey’s testimony relate to her credibility, and
it is well-established that an appellate court “will not interfere with the trier of fact’s
determinations regarding the . . . credibility of witnesses.” People v Stevens, 306 Mich. App. 620,
628; 858 NW2d 98 (2014).
F. STANDARD 4 BRIEF
1. SEARCH AND SEIZURE AND ARRAIGNMENT DELAY
Defendant argues that his right against unreasonable searches and seizures was violated
by his warrantless arrest without probable cause and by the delay in his arraignment. We
disagree.
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Defendant failed to preserve either issue by raising the issues in the trial court. See
People v Metamora Water Serv, Inc, 276 Mich. App. 376, 382; 741 NW2d 61 (2007). With
regard to defendant’s argument regarding his warrantless arrest, we decline to address the issue
as there is insufficient evidence in the record to analyze whether probable cause existed to arrest
defendant without a warrant. See People v Nguyen, 305 Mich. App. 740, 751; 854 NW2d 223
(2014) (“An arresting officer, or collectively the officers involved in an investigation . . . must
possess information demonstrating probable cause to believe that an offense has occurred and
that the defendant has committed it.”). With regard to defendant’s issue regarding the delay in
his arraignment, we review unpreserved constitutional issues for plain error affecting defendant’s
substantial rights. Carines, 460 Mich. at 763.
Defendant contends that a delay in his arraignment deprived him of due process and that
evidence gathered during the delay, including the recorded jailhouse telephone calls, ballistics
tests performed on the weapon retrieved from McClain’s residence, and statements made by
McClain and a woman who lived with defendant’s uncle should have been suppressed. MCL
764.26 provides that a person charged with a felony must be brought before a magistrate or
another judicial officer “without unnecessary delay” after his or her arrest. The United States
Supreme Court has held that a delay of more than 48 hours between an individual’s arrest and
arraignment is presumed unreasonable, and the government bears the burden of demonstrating
“the existence of a bona fide emergency or other extraordinary circumstance.” Riverside Co v
McLaughlin, 500 U.S. 44, 57; 111 S. Ct. 1661; 114 L. Ed. 2d 49 (1991). In some circumstances, an
unreasonable delay may require the exclusion of evidence obtained during the delay. See People
v Manning, 243 Mich. App. 615, 642-643; 624 NW2d 746 (2000). “The exclusionary rule applies
whenever a statutorily unlawful detention has been employed as a tool to directly procure any
type of evidence from a detainee.” People v Cain, 299 Mich. App. 27, 49; 829 NW2d 37 (2012)
(quotation marks, citation, and emphasis omitted), aff’d in part, vacated in part on other grounds
495 Mich. 874 (2013). In other words, “ ‘[w]hile an improper delay in arraignment may
necessitate the suppression of evidence obtained as a result of that delay, the delay does not
entitle a defendant to dismissal of the prosecution.’ ” Id. (alteration in original).
The precise time of defendant’s arrest on March 22, 2015, is not indicated in the record.
Defendant asserts that he was “booked and processed after 8:00 p.m.” On March 24, 2015, a
magistrate signed a felony warrant finding that there was probable cause to support defendant’s
commission of the offenses, and commanding that defendant be arrested and brought before the
court immediately. The magistrate also signed the felony complaint on March 24, 2015.
Defendant’s arraignment was held on March 25, 2015, but the time of the arraignment is not
indicated in the record. However, even assuming that the arraignment was held over 48 hours
after defendant’s arrest, because the issue was not raised below, the prosecution was not given
the opportunity to demonstrate a bona fide emergency or another extraordinary circumstance
justifying the delay. Therefore, we decline to review this unpreserved error.
2. PRELIMINARY EXAMINATION
Defendant also raises a number of arguments with respect to his preliminary examination.
He first claims that he was denied his due-process right to a timely preliminary examination. We
disagree.
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We first note that defendant did not preserve this issue by raising it in the trial court. See
Metamora Water Serv, Inc, 276 Mich. App. at 382. Therefore, our review is for plain error
affecting defendant’s substantial rights. See Carines, 460 Mich. at 763. MCL 766.4(1) provides,
in relevant part, that
the magistrate before whom any person is arraigned on a charge of having
committed a felony shall set a date for a probable cause conference to be held not
less than 7 days or more than 14 days after the date of the arraignment, and a date
for a preliminary examination of not less than 5 days or more than 7 days after the
date of the probable cause conference.
At the arraignment on March 25, 2015, the trial court set the preliminary examination conference
for April 8, 2015, and set the preliminary examination for April 15, 2015. The lower court
register of actions reflects that defendant sought the adjournment on April 14, 2015. Therefore,
he fails to establish plain error. See Lewis v LeGrow, 258 Mich. App. 175, 210; 670 NW2d 675
(2003) (“[E]rror requiring reversal may only be predicated on the trial court’s actions and not
upon alleged error to which the aggrieved party contributed by plan or negligence.”).
Defendant also raises evidentiary issues and a sufficiency of the evidence challenge with
respect to the preliminary examination. “[E]videntiary error committed at the preliminary
examination stage of [a] case does not require automatic reversal of the subsequent conviction
absent a showing that defendant was prejudiced at trial.” People v Hall, 435 Mich. 599, 602-603;
460 NW2d 520 (1990). Defendant has not shown that he was denied a fair trial, and he makes
no allegations of unfair prejudice resulting from the alleged errors at the preliminary
examinations. Further, if a defendant is fairly convicted at trial, no appeal lies regarding whether
the evidence at the preliminary examination was sufficient to warrant a bindover. People v
Green, 313 Mich. App. 526, 530; 884 NW2d 838 (2015) (“A defendant may not appeal whether
the evidence at the preliminary examination was sufficient to warrant a bindover if the defendant
was fairly convicted of the crimes at trial.”) (Citation and quotation marks omitted.) Because
defendant was fairly convicted of the crimes at trial, he cannot appeal the sufficiency of the
evidence at the preliminary examination.
3. TESTIMONY ON INJURY OF NINE-YEAR-OLD
Defendant argues that the trial court abused its discretion by admitting opinion testimony
from police witnesses and the mother of the child injured inside her home about the cause of the
child’s injury, by admitting the projectile and testimony regarding the projectile, and by
admitting a photograph showing the trajectory of the projectile. We disagree.
Defendant did not object to the allegedly improper opinion testimony, and stipulated to
the admission of evidence regarding the projectile and the trajectory of the projectile. Therefore,
the issue regarding the opinion testimony is unpreserved, and the issue regarding the admission
of the projectile and trajectory evidence is waived. See Carter, 462 Mich. at 215; Aldrich, 246
Mich. App. at 113. We review the unpreserved challenge to the opinion testimony for plain error.
See Carines, 460 Mich. at 763.
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Defendant first asserts that several police officers and the child’s mother were not
qualified as experts but were allowed to provide improper opinion testimony about the child’s
injury. MRE 701 permits lay witnesses to provide testimony in the form of an opinion if the
opinion is “(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.” MRE 701.
Here, the police officers and the child’s mother based their opinions regarding whether a bullet
or shrapnel grazed the girl’s shoulder on their own perceptions of her injury and the
circumstances surrounding the injury. Therefore, the opinion testimony was proper.
Furthermore, the exact object that caused the girl’s injury is irrelevant as neither party contests
that the shooting caused the child’s injuries. Therefore, even assuming that the evidence was
improperly admitted, defendant cannot establish prejudice.
Even assuming that the issue regarding the projectile and the trajectory evidence was not
waived, defendant fails to establish error with regard to the admission of the evidence.
Defendant argues that the bullet, and testimony regarding it, were improperly admitted because
the firearms expert who examined the bullet “could not substantiate that the projectile was a 40
caliber bullet” and because the projectile could not be linked to the weapon used in this case. He
claims that the evidence was therefore highly prejudicial because “the jury could have assumed
the projectile was a 40 caliber and was fired from the weapon in evidence.” The factual premise
of defendant’s argument is incorrect. The firearms expert testified that he “was able to determine
that the class characteristics of this bullet, which I believe were six polygonal right and that it
was a 40 caliber, slash, 10-millimeter caliber bullet, it’s the diameter of the bullet . . . and it was
consistent with − just from those things, that this gun could be a possibility that fired it.”
Admittedly, he testified that he was “not able to identify the bullet as having been fired from this
gun.” “However,” he continued, “I can’t eliminate it as having been fired from that gun.”
Lastly, defendant argues, without any supporting authority, that a photograph showing
the trajectory of the projectile was improperly admitted because the “trajectory was conducted
improperly making the procedure incompetent.” The trajectory of the bullet was relevant in
establishing where the shot that struck the injured child’s home originated. To the extent that the
procedure used to determine the trajectory may have been deficient, defendant’s argument goes
to the weight of the evidence, not its admissibility. See People v Mardlin, 487 Mich. 609, 626;
790 NW2d 607 (2010) (“The jury is the sole judge of the facts; its role includes listening to
testimony, weighing evidence, and making credibility determinations.”).
4. JURY INSTRUCTIONS
Defendant also argues that the trial court erred by instructing the jury on the offenses of
assault and assault and battery, MCL 750.81. We disagree.
We review this unpreserved challenge to the jury instructions for plain error affecting
defendant’s substantial rights. People v Jackson (On Reconsideration), 313 Mich. App. 409, 421;
884 NW2d 297 (2015).
The trial court told the jury that defendant was charged with 12 counts and instructed on
those 12 counts, none of which were assault and assault and battery. However, the trial
transcript indicates that the court did instruct the jury on these two offenses. Nonetheless, the
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court read the verdict form on the record, and it did not include options to render a verdict for
assault and assault and battery. The verdict form contains only the appropriate 12 counts and
offers only the lesser included offenses of assault with intent to commit great bodily harm, MCL
750.84, and felonious assault, MCL 750.82. Further, defendant does not challenge the fact that
the trial court properly instructed the jury on all elements of the charged offenses and any
material issues, defenses, and theories supported by the evidence. See McGhee, 268 Mich. App.
at 606. Therefore, to the extent that the trial court improperly instructed the jury regarding
assault and assault and battery, the error did not prejudice defendant.3
5. SEARCH WARRANT
Defendant argues that the gun seized during the search of McClain’s home should have
been suppressed because the affidavit in support of the search warrant was insufficient to
establish probable cause to search. We disagree.
Defendant did not move to suppress the evidence in the lower court and, therefore, there
is no record to review. Further, the search warrant and affidavit are not contained in the lower
court record. Although defendant appears to have quoted from portions of the search warrant
affidavit in his Standard 4 brief, he has not provided this Court with a copy of that document, nor
has he moved to expand the record to include the warrant and affidavit. As he has not primed the
appellate pump, we decline to attempt any further analysis of the issue. See People v Waclawski,
286 Mich. App. 634, 679; 780 NW2d 321 (2009).
6. MEDICAL TESTIMONY
Defendant maintains that the trial court clearly erred by excluding scientific expert
testimony from the doctor who treated the child victim in the emergency department. We
disagree.
Defense counsel stipulated to admission of the doctor’s report in lieu of the doctor’s
testimony. The stipulation waived any error with regard to the trial court’s admission of the
report. Carter, 462 Mich. at 215. In the alternative, defendant argues that trial counsel was
ineffective for stipulating to admit the medical report and not calling the doctor as a witness. He
contends that if the doctor’s testimony had been admitted, the contradictory lay opinion
testimony would have been excluded. However, as discussed previously, the lay opinion
testimony was admissible under MRE 701. Therefore, counsel cannot be faulted for failing to
make a meritless argument. People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
3
Defendant also argues that the prosecution lacked sufficient evidence to charge him with
assault with intent to commit murder, and the trial court erred by giving the standard jury
instruction on intent. Defendant has waived these claims of error, however, by failing to include
them in his statement of questions presented. See People v Fonville, 291 Mich. App. 363, 383;
804 NW2d 878 (2011).
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7. PROSECUTORIAL MISCONDUCT
Defendant asserts that he was deprived of a fair trial when the prosecutor misstated the
law during closing arguments. We disagree.
Defendant did not contemporaneously object to the alleged improper statements at trial
and, therefore, this issue is not preserved. People v Thomas, 260 Mich. App. 450, 453-454; 678
NW2d 631 (2004). Accordingly, we review the issue for plain error affecting defendant’s
substantial rights. Id. at 454.
We review claims of prosecutorial misconduct on a case-by-case basis, and must examine
the pertinent portion of the record and evaluate the prosecutor’s remarks in context. People v
Mann, 288 Mich. App. 114, 119; 792 NW2d 53 (2010). The prosecutor’s statements must be
considered as a whole and evaluated in light of defense arguments and the relationship they bear
on the evidence admitted at trial. People v Callon, 256 Mich. App. 312, 330; 662 NW2d 501
(2003).
Defendant has extrapolated three isolated comments out of context to support his
argument that the prosecutor misstated the law with respect to the intent necessary to convict of
assault with intent to commit murder. Although a prosecutor’s clear misstatement of the law can
deprive a defendant of a fair trial if uncorrected, People v Grayer, 252 Mich. App. 349, 357; 651
NW2d 818 (2002), defendant has not identified any error in the prosecutor’s unchallenged
remarks. Instead, our review of the prosecutor’s closing argument reveals that the prosecutor
properly stated the law with regard to intent.
In any event, the prosecutor also told the jury that “[y]ou have to follow the law as the
Judge instructs you, not as I instruct you, as the Judge instructs you. He’s going to read you
what the law is [and] . . . I’ve been sworn to an oath to follow the law as instructed.” This was
echoed by the court: “It is my duty to instruct you on the law. You must take the law as I give it
to you. If a lawyer says something different about the law, follow what I say.” (Emphasis
added.) “ ‘It is well established that jurors are presumed to follow their instructions.’ ” People v
Parker, 288 Mich. App. 500, 512; 795 NW2d 596 (2010) (citation omitted). Therefore, even
assuming that the prosecutor made improper statements during closing arguments, defendant
cannot establish plain error.
8. CUMULATIVE ERROR
Lastly, defendant argues that the cumulative effect of the errors in this case deprived him
of a fair trial. We disagree.
Defendant waived this claim of error by failing to include it in the statement of questions
presented. Fonville, 291 Mich. App. at 383. Regardless, even if we were to conclude that the
error was not waived, defendant fails to establish that the cumulative effect of several errors
prejudiced him to the extent that reversal is warranted. “To warrant reversal based on
cumulative error, ‘the effect of the errors must have been seriously prejudicial in order to warrant
a finding that defendant was denied a fair trial.’ ” Schrauben, 314 Mich. App. at 193 (citation
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omitted). In this case, we conclude that any minor errors were not seriously prejudicial in order
to warrant a finding that defendant was denied a fair trial. Accordingly, defendant’s claim is
without merit.
Affirmed.
/s/ Michael F. Gadola
/s/ Kathleen Jansen
/s/ Henry William Saad
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