People of Michigan v. Teddy William Brown Jr ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 17, 2020
Plaintiff-Appellee,
v No. 346891
Alger Circuit Court
TEDDY WILLIAM BROWN, JR, LC No. 2017-002279-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 346892
Alger Circuit Court
TEDDY WILLIAM BROWN, JR, LC No. 2017-002280-FC
Defendant-Appellant.
Before: REDFORD, P.J., and BECKERING and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals by right his jury convictions in two cases that were consolidated for
trial. In LC No. 2017-002279-FC (COA No.346891), the jury convicted defendant of first-degree
criminal sexual conduct (CSC-I), MCL 750.520b(1)(a) (sexual penetration with a person under the
age of 13), and second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual
contact with a person under the age of 13). In LC No. 2017-002280-FC (COA No. 346892), the
jury convicted defendant of gross indecency, MCL 750.338b, disseminating sexually explicit
matter to a minor, MCL 722.675, and two counts of using a computer to commit a crime, MCL
752.797(3)(c) and (d). The trial court sentenced defendant as a third-offense habitual offender,
MCL 769.11, in both cases, imposing concurrent prison sentences of 25 to 40 years for the CSC-I
conviction, 8 to 30 years for the CSC-II conviction, 2 to 10 years for the gross indecency
conviction, 2 to 4 years for the dissemination of sexually explicit matter conviction, 2 to 8 years
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for one unlawful use of a computer conviction, and 2 to 14 years for the other unlawful use of a
computer conviction. We affirm.
I. FACTUAL BACKGROUND
Defendant formerly lived in the same household as the victim, her mother, and the victim’s
siblings. The victim testified that defendant began abusing her when she was around five or six
years old. She explained that defendant entered her bedroom at night while she was sleeping.
Initially, the abuse involved defendant touching the victim’s vagina with his hand, which occurred
two or three days a week, but eventually progressed to defendant penetrating the victim’s vagina
with his penis. The victim first disclosed the allegations to a counselor in 2015, which led to an
investigation by Child Protective Services (CPS) that resulted in no charges at that time. In 2017,
the victim began communicating with defendant over Facebook, which led to Facebook messaging
discussions of a sexual nature that included admissions by defendant in which he referred to sexual
activity with the victim. Defendant also sent the victim nude photographs and videos of himself
masturbating.
In LC No. 2017-002279-FC, the jury convicted defendant of CSC-I and CSC-II for
sexually abusing the victim before she was 13 years old. In LC No. 2017-002280-FC, the jury
convicted defendant of gross indecency, disseminating sexually explicit matter to a minor, and two
counts of using a computer to commit a crime for conduct related to the Facebook exchanges in
2017.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims that his trial counsel provided him ineffective assistance. Defendant did
not raise these claims in a motion for a new trial or request a Ginther1 hearing in the trial court.
Defendant moved in this Court for remand for a Ginther hearing twice. This Court denied his first
such motion without prejudice because defendant failed to persuade the Court of the necessity of
a remand at the time. People v Brown, unpublished order of the Court of Appeals entered
January 17, 2020 (Docket Nos. 346891, 346892).
This Court held in abeyance defendant’s second motion for a Ginther hearing, which was
filed August 14, 2020, pending oral argument in these two matters on September 3, 2020. People
v Brown, unpublished order of the Court of Appeals entered August 20, 2020 (Docket Nos.
346891, 346892). This Court has since issued an order denying defendant’s second motion for a
Ginther hearing. People v Brown, unpublished order of the Court of Appeals entered September
4, 2020 (Docket Nos. 346891, 346892).
A claim of ineffective assistance of counsel “presents a mixed question of fact and
constitutional law.” People v Armstrong, 490 Mich. 281, 289; 806 NW2d 676 (2011). We review
the trial court’s findings of fact, if any, for clear error, and review de novo its conclusions of law.
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008). “Clear error exists if the reviewing
court is left with a definite and firm conviction that the trial court made a mistake.” Armstrong,
490 Mich. at 289. We also review de novo constitutional issues. Harvey v Michigan, 469 Mich. 1,
6; 664 NW2d 767 (2003).
Defendant bears the burden of establishing that his defense counsel provided him
ineffective assistance by showing 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. 38, 51; 826 NW2d
136 (2012) (citations omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001)
(quotation marks and citation omitted). Defendant must “overcome the strong presumption that
counsel’s performance was born from a sound trial strategy.” Trakhtenberg, 493 Mich. at 52
(citation omitted). “Because the defendant bears the burden of demonstrating both deficient
performance and prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim.” Carbin, 463 Mich. at 600. “Decisions regarding what evidence to present
and whether to call or question witnesses are presumed to be matters of trial strategy.” People v
Rockey, 237 Mich. App. 74, 76; 601 NW2d 887 (1999) (citation omitted). “This Court does not
second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the
benefit of hindsight.” People v Foster, 319 Mich. App. 365, 391; 901 NW2d 127 (2017) (quotation
marks and citation omitted). “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). Further, defendant “has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel.” People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
1. FAILURE TO CALL OR QUESTION ALIBI AND CHARACTER WITNESSES
Defendant first claims that defense counsel provided ineffective assistance by not calling
a number of witnesses who would have testified about his whereabouts during the times the videos
of a male masturbating were uploaded and sent to the victim or if he did call the witness he failed
to question him on the topic. Defendant also maintains that defense counsel should have called a
number of character witnesses who would have offered favorable testimony regarding his
character. We disagree.
“Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy, which [this Court] will not second-guess with the
benefit of hindsight.” People v Dixon, 263 Mich. App. 393, 398; 688 NW2d 308 (2004) (quotation
and citations omitted). The failure to call a supporting witness does not inherently amount to
ineffective assistance of counsel, and there is no “unconditional obligation to call or interview
every possible witness suggested by a defendant.” People v Beard, 459 Mich. 918, 919; 589 NW2d
774 (1998). “[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 (citation omitted).
A substantial defense is one that “would have affected the outcome of the proceeding.” People v
Daniel, 207 Mich. App. 47, 58; 523 NW2d 830 (1994) (citation omitted).
Defendant has not supported his claim that the alleged alibi witnesses would have testified
as he suggests. When an ineffective-assistance claim is premised on an attorney’s failure to call
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an alibi witness, the defendant must demonstrate that the witness would have provided favorable
alibi testimony. People v Pickens, 446 Mich. 298, 327; 521 NW2d 797 (1994). Defendant has not
presented an affidavit from any of the alleged alibi witnesses. Instead, he offers as proof what he
believes the individuals may have testified at trial. Without affidavits, however, defendant’s
representations merely speculate that their testimony would have been favorable. Such conjecture
does not establish ineffective assistance of counsel. See People v Pratt, 254 Mich. App. 425, 430;
656 NW2d 866 (2002). Defendant has failed to establish the necessary factual predicate to succeed
on his claim that defense counsel provided ineffective assistance by failing to call alibi witnesses.
Id.; Carbin, 463 Mich. at 600.
Moreover, even if the witnesses would have testified as defendant suggests, a reasonable
probability does not exist that the outcome would have been different if they had been called.
Defendant’s argument is predicated on his contention that such alibi witnesses would have
established that he could not have recorded the videos on the dates they were sent to the victim
because the witnesses could testify as to his whereabouts during the dates. However, the record
indicates that the content of the messages sent to the victim in the videos were not recorded at the
time they were sent. Even if the witnesses had testified regarding defendant’s presence with them
on the dates in question, such testimony would not have rebutted or even cast doubt on the evidence
that the videos were made at one time and sent via defendant’s Facebook account at a different
time to the victim. The jury had more than ample evidence from which it could find beyond a
reasonable doubt that defendant sent the prerecorded videos to the victim, even while with or in
the presence of others. Defendant’s speculative offer of proof provides no indication that the
alleged witnesses would have, or could have, testified that defendant lacked possession or use of
his phone on the days and specific times in question. Defendant has failed to establish the
necessary factual predicate to succeed on his claim that defense counsel provided ineffective
assistance by failing to call alibi witnesses. Pratt, 254 Mich. App. at 430; Carbin, 463 Mich. at 600.
Respecting the alleged character witnesses, defendant conjectures that they would have
testified regarding his good sexual morals and that he was not a child abuser. Here again, however,
defendant has failed to provide any supporting affidavits specifying the substance of each witness’s
proposed testimony. Defendant has failed to establish the necessary factual predicate to succeed
on his claim that defense counsel provided ineffective assistance by failing to call these character
witnesses. Pratt, 254 Mich. App. at 430; Carbin, 463 Mich. at 600. The record reflects that defense
counsel called witnesses on defendant’s behalf who testified that, based on everything they knew,
they not only doubted the victim’s allegations but considered them false. Further, they testified
favorably about defendant’s character. We will not second-guess defense counsel’s strategic
reasons for not calling such witnesses and cannot conclude based upon the record that defense
counsel’s decisions regarding witnesses was objectively unreasonable. Moreover, we are not
persuaded that, but for defense counsel’s failure to call the alibi and character witnesses, the
outcome of defendant’s trial would have been different. The prosecution presented substantial
evidence from which a jury could find defendant guilty beyond a reasonable doubt of the charged
offenses.
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2. EVIDENCE OF VICTIM’S VIRGINITY
Defendant next argues that defense counsel provided ineffective assistance by not calling
witnesses to testify about a statement allegedly made by the victim in 2018 that she had only
recently lost her virginity. We disagree.
Defendant fails to provide an affidavit or other appropriate offer of proof to support his
claim that the witnesses would have testified consistently with defendant’s assertion. Pratt, 254
Mich. App. at 430. More importantly, however, defendant fails to explain why this evidence would
not be precluded by the rape-shield statute, even if offered as impeachment evidence. MCL
750.520j provides, in pertinent part:
(1) Evidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the victim’s
sexual conduct shall not be admitted under sections 520b to 520g1 unless and only
to the extent that the judge finds that the following proposed evidence is material
to a fact at issue in the case and that its inflammatory or prejudicial nature does not
outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or
origin of semen, pregnancy, or disease.
Evidence regarding the victim’s virginity is not one of the listed exceptions. Our Supreme
Court has held that evidence that does not fall within the statute is not admissible even for
impeachment purposes. “By enacting a general exclusionary rule, the Legislature recognized that
in the vast majority of cases, evidence of a rape victim’s prior sexual conduct with others, and
sexual reputation, when offered to prove that the conduct at issue was consensual or for general
impeachment is inadmissible.” People v Hackett, 421 Mich. 338, 347-348; 365 NW2d 120 (1984)
(citation omitted). In Hackett, the Court recognized certain limited situations in which such
evidence may be relevant and its admission required to preserve a defendant’s constitutional right
of confrontation. Hackett specifically recognized three situations: (1) where the defendant proffers
evidence of a complainant’s prior sexual conduct for the narrow purpose of showing the
complaining witness’s bias; (2) where evidence of a complainant’s sexual conduct may also be
probative of a complainant’s ulterior motive for making a false charge; and (3) where the defendant
should be permitted to show that the complainant has made false accusations of rape in the past.
Id. at 348. Testimony regarding the victim’s virginity does not fit any of these exceptions.
Accordingly, such evidence would not have been admissible and defense counsel’s failure to seek
its admission of inadmissible evidence does not constitute ineffective assistance.
3. QUESTIONING OF CPS CASEWORKER AND ADMISSION OF CPS REPORT
Defendant next argues that defense counsel provided ineffective assistance by choosing to
cross-examine the CPS caseworker in a manner that elicited inadmissible hearsay. Defendant also
complains that counsel’s actions allowed the jury to view an unduly prejudicial CPS report. We
disagree.
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The record reflects that defense counsel questioned the caseworker about statements made
by the victim and by others to point out inconsistencies between the victim’s trial testimony and
her prior statements during the CPS investigation. The record reflects that defense counsel elicited
testimony that pointed out a number of discrepancies for the purpose of challenging the victim’s
memory, bias, and her veracity. Defense counsel also elicited testimony that called into question
whether anyone knew of or had ever seen the abuse as claimed by the victim. The victim testified
that no one had seen any of the abuse, but that there had been one “close call” where someone
almost discovered it. When questioned whether she had ever told anyone that her grandmother
was aware of the abuse or that the 2015 incident ended when her grandmother caught defendant
in the victim’s room, the victim testified that she did not recall. The CPS caseworker, however,
reported that the victim told her that her grandmother saw her during one of the occasions that
defendant sexually abused her and that her grandmother asked her the next day why she was having
sex with defendant. Defense counsel questioned the victim’s grandmother whether she had
knowledge that any abuse had occurred. She denied any knowledge. The CPS caseworker’s
testimony sharply contrasted with the victim’s testimony.
Defense counsel also sought to introduce statements made by the victim’s father during a
CPS interview contained in the CPS report. The parties disputed the admissibility of the report
and portions of its content and eventually agreed to the admission of a redacted-version CPS report.
Defense counsel then cross-examined the CPS caseworker regarding the report’s indication that
the victim’s father had told the interviewer that he had never heard of any abuse before the
revelation that led to CPS involvement. The victim’s father also told the interviewer that he had
not witnessed any abuse. The record reflects that defense counsel used the report to present the
jury evidence favorable to the defense.
We find no merit to defendant’s argument that the statements elicited by trial counsel were
inadmissible hearsay. “Where a witness testifies that a statement was made, rather than about the
truth of the statement itself, the testimony is not hearsay.” People v Harris, 201 Mich. App. 147,
150-151; 505 NW2d 889 (1993). Defense counsel did not elicit the statements for the purposes of
establishing the truth of the matters asserted, but rather for impeachment purposes and to advance
the defense strategy to cast doubt upon the victim’s testimony and allegations of sexual abuse. The
record indicates that defense counsel’s decision to question the caseworker and to introduce the
CPS report served a strategic purpose, and the mere fact that a strategy did not work, does not
render defense counsel’s performance ineffective assistance of counsel. People v Kevorkian, 248
Mich. App. 373, 414-415; 639 NW2d 291 (2001).
4. IMPEACHMENT OF THE VICTIM WITH HER INCONSISTENT STATEMENTS.
Defendant next argues that defense counsel provided ineffective assistance by failing to
properly cross-examine the victim to impeach her with prior inconsistent statements regarding
whether she heard defendant’s pants unzipping before he sexually abused her, whether the sexual
abuse first occurred when she was five or six years old as she testified at trial, or when she was six
or seven as she testified at the preliminary examination, and by not asking the victim how she
knew that the videos depicted defendant when she testified that the abuse occurred in the dark,
while she had her eyes closed. We disagree.
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The record reveals that defense counsel extensively cross-examined the victim, which
included pointing out inconsistencies in her account of where the first alleged abuse occurred,
whether she told anyone that abuse occurred in 2015, and whether she told anyone that her
grandmother had witnessed the abuse. Defense counsel also questioned the victim about her
motivations for deciding to Facebook message defendant, whether she had sent defendant naked
photographs of herself, and why she did not tell anyone about the messages before her grandmother
found the tablet that she used to communicate with defendant. The record also reflects that defense
counsel questioned the victim about her motivation to lie, including whether she hated defendant
and wanted to get him in trouble. All of these matters were highly probative of the victim’s
veracity and cast doubt upon her accusations and motivation for her conduct. Defense counsel’s
decision not to challenge the victim regarding inconsistent testimony about precisely when the
abuse began, whether at age five or six or age six or seven, does not establish that he performed
below an objective standard of reasonableness. Such cross-examination may have challenged the
specificity of the victim’s memory as a young child but would not have undermined her testimony
that defendant sexual abused her repeatedly starting when she was a young child and continuing
over an extended period progressing from inappropriate touching to penetration.
Defendant asserts that defense counsel should have cross-examined the victim regarding
hearing defendant unzipping his pants to challenge whether the victim actually knew that
defendant had engaged in vaginal intercourse instead of digital penetration. Such testimony,
however, would not have exonerated defendant or effectively cast doubt on the victim’s allegations
of sexual abuse because the record reflects that the victim provided a number of other reasons for
why she knew that defendant had used his penis. Regardless, even if such evidence may have
challenged her allegations of penile penetration, it would not negate her testimony of digital
penetration which also constitutes sexual penetration for purposes of CSC-I. MCL 750.520a(q).
Accordingly, defendant has not shown that defense counsel’s performance in cross-examining the
victim fell below an objective standard of reasonableness. Even if defense counsel’s performance
in this regard fell below the standard, defendant has failed to establish that but for defense
counsel’s deficient performance the outcome of defendant’s trial would have been different.
We also find no merit to defendant’s claim of ineffective assistance because defense
counsel did not question the victim about how she knew that defendant was the person in the videos
when the alleged sexual abuse occurred in the dark and she could not have recognized defendant’s
penis in the videos. Evidence, however, established that defendant acknowledged in various
messages to the victim that he sent her the videos. The victim testified that she knew that the
messages came from defendant because of the knowledge of her life that the sender referenced and
other photographs he shared with her including selfies. The Facebook messaging evidence
submitted by the prosecution corroborated the victim’s testimony. Defendant, therefore, has not
shown that defense counsel’s performance in cross-examining the victim in this regard fell below
the applicable standard or that but for his performance the outcome of defendant’s trial would have
been different.
5. DEFENDANT’S DECISION NOT TO TESTIFY
Defendant next argues that defense counsel provided ineffective assistance by convincing
him not to testify out of concern about the prosecution using evidence of other allegations
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involving another child which defendant asserts would likely have been excluded had the
prosecution tried to introduce it. We disagree.
“Although counsel must advise a defendant of th[e] right [to testify], the ultimate decision
whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich. 412,
419; 803 NW2d 217 (2011). This Court presumes that defense “counsel’s advice to defendant not
to testify on his own behalf” is sound trial strategy. People v Tommolino, 187 Mich. App. 14, 17;
466 NW2d 315 (1991). Although defendant now claims that he would have testified, he has not
established that his counsel failed to fully advise him of his right to testify on his own behalf, or
that he did not knowingly and voluntarily waive his right to do so. Moreover, if defense counsel
advised defendant not to testify based on evidence the prosecution would seek to admit regarding
other sexual abuse perpetrated by defendant against another victim, defendant has not
demonstrated the unsoundness of such advice. Under MCL 768.27a(1), “in a criminal case in
which the defendant is accused of committing a listed offense against a minor, evidence that the
defendant committed another listed offense against a minor is admissible and may be considered
for its bearing on any matter to which it is relevant.” A “listed offense” includes CSC-I and CSC-
II. MCL 28.722(w)(iv) and (v). Although defendant characterizes the other allegations of sexual
misconduct as “irrelevant,” he fails to explain why such allegations would not have been
admissible under MCL 768.27a(1). Accordingly, defendant has failed to prove that defense
counsel’s advice fell below the applicable standard or that but for his counsel’s defective
performance the outcome of his trial would have been different.
B. JUDICIAL MISCONDUCT
Defendant also argues that he is entitled to a new trial because the trial judge remarked
during trial that he knew members of the victim’s extended family. Because defendant made no
objection to the trial court’s remarks at trial, this issue is unpreserved. Accordingly, we review
this unpreserved claim of error for plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). To establish the right to a new trial, defendant
must prove that 1) an error occurred, 2) the error was plain, i.e., clear or obvious, and 3) the plain
error affected defendant’s substantial rights. Id. If defendant proves these three requirements, “an
appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted
only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or
when an error seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation omitted).
In this case, during testimony by the victim’s uncle who defendant called as a witness, the
trial court interrupted to ask the witness the name of his father. After the witness responded, the
trial court remarked: “Ron, okay. That’s just–I’ve known all the Graves’ over time, and I was just
curious if it was Steve or Ron. Thank you.” Such remarks lacked relevance to the proceedings
but the record does not reflect that the remarks impacted the proceedings in any manner. The
remarks do not intimate that the trial court lacked impartiality nor did the remarks undermine or
bolster the witness’s testimony.
To the extent that the trial court may be said to have plainly erred by making such remarks,
we are not persuaded that the remarks affected defendant’s substantial rights. The record reflects
that the trial court instructed the jury that its comments, rulings, summary of the evidence, and
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instructions were not evidence and that they were to decide defendant’s guilt or innocence based
on the evidence alone. “Jurors are presumed to follow their instructions, and instructions are
presumed to cure most errors.” People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836
(2003). Further, reversal is not warranted because the plain error did not result in the conviction
of an actually innocent defendant. The prosecution presented substantial evidence from which a
jury could find defendant guilty of the charged offenses beyond a reasonable doubt. The record
also does not establish that the plain error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Defendant, therefore, has failed to establish that the plain error
affected his substantial rights entitling him to relief.
Defendant also argues that the trial court’s remarks constituted judicial misconduct. In
determining whether a trial judge’s comments or conduct deprived a defendant of a fair trial, this
Court considers whether the trial judge’s “conduct pierces the veil of judicial impartiality.” People
v Stevens, 498 Mich. 162, 164; 869 NW2d 233 (2015). “A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the totality of the
circumstances, it is reasonably likely that the judge’s conduct improperly influenced the jury by
creating the appearance of advocacy or partiality against a party.” Id. at 171. This is a fact-specific
inquiry to be considered in the context of a given case. Id. at 171-172.
In this case, the trial court’s remarks were isolated and brief. The trial court did not express
an opinion about the witness, the witness’s family, or anything related to the case. We find no
merit to defendant’s speculation that the trial court’s remarks may have been regarded by the jury
as sympathetic to the victim or her family. Further, the trial court later instructed the jury that:
when I make a comment or give an instruction, I am not trying to influence your
vote or express a personal opinion about the case. If you believe that I have an
opinion about how you should decide this case, you must pay no attention to that
opinion. You are the only judges of the facts, and you should decide this case from
the evidence.
Such instruction sufficed to cure any misperception by the jury based on the trial court’s brief
remarks. Stevens, 498 Mich. at 177. Accordingly, defendant has failed to establish judicial
misconduct.
Defendant also asserts that defense counsel provided him ineffective assistance by not
objecting to the trial court’s remarks and requesting a mistrial. This argument lacks merit.
Defendant has failed to establish that defense counsel acted in an objectively unreasonable manner
by failing to object and request a curative instruction or a mistrial. Defense counsel likely would
not have had such objection sustained nor been granted a mistrial because he could not establish
that the remarks prejudiced him in any manner. Accordingly, an objection or request for a mistrial
would have been futile. Further, defendant cannot establish that, but for the trial court’s comment
and the lack of objection or request for a curative instruction, defendant had a reasonable chance
of acquittal. Given the trial court’s instructions to the jury, no reasonable probability exists that
the outcome of defendant’s trial would have been different.
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C. PROSECUTORIAL CONDUCT
Defendant next argues that he was denied a fair trial when the investigating officer testified
that his questioning of defendant ended when defendant invoked his right to remain silent and to
consult an attorney. Defendant acknowledges that this issue is unpreserved because he did not
object to the challenged testimony at trial. Accordingly, we review this issue for plain error
affecting defendant’s substantial rights. Carines, 460 Mich. at 763-764.
At trial, the investigating officer explained that after analyzing the Facebook messaging
between defendant and the victim he conducted a police interview with defendant and he
confronted defendant with the evidence of the Facebook messages, photos, and videos that the
police had obtained. The officer testified that defendant claimed that someone must have “hacked”
his Facebook account. The prosecutor continued:
Q. Okay. Did you argue with him any more about that?
A. Well, I—I did. I—I think argue may be a bad term. But I did ask him,
after he told me that. I said, so, you’re telling me that somebody hacked your
Facebook, that had intimate knowledge of this previous investigation? And I
believe it was then, he said, I want to talk to a lawyer—
Q. Okay.
A: —I don’t want to answer any more questions. So, the questions stopped,
pertaining to this investigation.
Defendant argues that the prosecutor engaged in misconduct by eliciting his post-Miranda2
invocation of his right to remain silent. We disagree.
We review claims of prosecutorial misconduct to determine “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. A prosecutor may not
question a police officer regarding a defendant’s invocation of his right to counsel or to remain
silent. People v Knapp, 244 Mich. App. 361, 383-384; 624 NW2d 227 (2001). “In general,
prosecutorial references to a defendant’s postarrest, post-Miranda silence violate a defendant’s
due-process rights under the Fourteenth Amendment of the United States Constitution.” People v
Shafier, 483 Mich. 205, 212-213; 768 NW2d 305 (2009). “In general, any reference to a
defendant’s postarrest, post-Miranda silence is prohibited, but in some circumstances a single
reference to a defendant’s silence may not amount to a violation of [Doyle v Ohio, 426 U.S. 610;
96 S. Ct. 2240; 49 L. Ed. 2d 91 (1976),] if the reference is so minimal that ‘silence was not submitted
to the jury as evidence from which it was allowed to draw any permissible inference . . . .’ ”
2
Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
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Shafier, 483 Mich. at 214-215, quoting Greer v Miller, 483 U.S. 756, 764-765; 107 S. Ct. 3102; 97 L
Ed 2d 618 (1987).
In People v Dennis, 464 Mich. 567; 628 NW2d 502 (2001), our Supreme Court considered
circumstances where a police officer testified that his interrogation of the defendant ceased when
the defendant invoked his Miranda rights. In Dennis, the following questioning occurred:
Q. What type of investigation follow-up did you do with regard to this?
A. I went out and attempted to interview [defendant], and at that time it was
refused. He wished to speak to an attorney prior to me asking him any questions.
[Id. at 570.]3
The defendant’s counsel unsuccessfully moved for a mistrial and the trial court later provided a
specific curative jury instruction. Id. at 571. Our Supreme Court distinguished the case from
Doyle where “the prosecution unabashedly used the silence of each of two defendants in the face
of Miranda warnings against them at their respective trials.” Id. at 574-575. Our Supreme Court
observed that the officer in Dennis responded to the prosecutor’s open-ended question regarding
further investigation and that the prosecution had not designed the question to elicit testimony
about the defendant’s invocation of his right to an attorney. Id. at 575. The Court concluded: “In
our view, it is evident that the prosecutor’s question, while it may have been inartfully phrased,
was aimed at eliciting testimony about these investigative efforts, not about the defendant’s refusal
of a police interview.” Id. Our Supreme Court then noted that, apart from this “single impropriety,
the prosecution did not call attention to defendant’s silence.” Id. at 577. The Court held that,
because the prosecution inadvertently elicited the testimony and never later referenced the
defendant’s silence or attempted to use his silence as evidence against him, and because the trial
court provided a curative instruction, no violation of the defendant’s rights occurred. Id. at 578-
579, 583.
In this case, as in Dennis, the prosecution inquired regarding the officer’s investigation and
did not ask him to comment on defendant’s invocation of his right to counsel or right to remain
silent. The officer’s statement that the interview ended because defendant invoked his right to
counsel occurred without prompting by the prosecution. After the improper response, the
prosecution immediately steered the questioning away from the officer’s response and focused on
another part of the investigation. Further, the prosecution never mentioned or alluded to
defendant’s silence nor implied that the jury should infer from defendant’s silence evidence of
guilt. The officer’s brief remark concerning defendant’s silence did not amount to a constitutional
violation, given that the prosecution inadvertently elicited the testimony and never attempted to
use his silence as evidence against him. Accordingly, defendant has not established a violation of
his rights or an outcome-determinative plain error.
Respecting defendant’s related ineffective-assistance claim, he has not shown that defense
counsel performed deficiently by not requesting a curative instruction or moving for a mistrial.
3
The Court noted that the prosecution had effectively stipulated that defendant was in police
custody at this point and had been apprised of his Miranda rights. Id. at 570-571.
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Although defense counsel could have objected and sought a curative instruction, by not doing so
defense counsel did not draw further attention to defendant’s silence in the face of accusations of
serious criminal conduct. Further, because the officer’s single reference to defendant’s response
did not rise to the level of a due-process violation, defense counsel cannot be faulted for failing to
request a mistrial. People v Snider, 239 Mich. App. 393, 425; 608 NW2d 502 (2000).
D. GREAT WEIGHT OF THE EVIDENCE
Defendant also argues that the trial court erred by denying his motion for a new trial on the
ground that his convictions of CSC-I and CSC-II were against the great weight of the evidence.
We disagree.
A trial court’s decision on a motion for a new trial is reviewed for an abuse of discretion.
People v Gadomski, 232 Mich. App. 24, 27; 592 NW2d 75 (1998). “A verdict is against the great
weight of the evidence and a new trial should be granted when the evidence preponderates heavily
against the verdict and a serious miscarriage of justice would otherwise result.” People v Solloway,
316 Mich. App. 174, 182-183; 891 NW2d 255 (2016) (quotation marks and citations omitted).
Questions regarding credibility are not sufficient grounds for relief unless the “testimony
contradicts indisputable facts or laws,” the “testimony is patently incredible or defies physical
realities,” the “testimony is material and . . . so inherently implausible that it could not be believed
by a reasonable juror,” or the “testimony has been seriously impeached and the case marked by
uncertainties and discrepancies.” People v Lemmon, 456 Mich. 625, 643-644; 576 NW2d 129
(1998) (quotation marks and citations omitted). “If the evidence is nearly balanced, or is such that
different minds would naturally and fairly come to different conclusions, the judge may not disturb
the jury findings although his judgment might incline him the other way.” Id. at 644 (quotation
marks and citation omitted).
Defendant argues that impeachment of the victim’s testimony established that she did not
remember any of the details of the abuse, which allegedly occurred over a period of years, other
than to state that defendant penetrated her vagina with his finger and penis. Defendant asserts that
the lack of supporting medical evidence of abuse indicated his innocence and the victim’s
statement that she would look when he left her bedroom cannot be reconciled with her testimony
that the abuse occurred in the dark. Defendant contends further that the victim did not know how
often the abuse happened, could not recall whether defendant had an erection or ejaculated, and
did not recall whether she stated that abuse occurred in 2015. Defendant also asserts that the
victim’s testimony that her sister did not awake during any of the incidents contradicted the
victim’s testimony that her sister did not sleep soundly most of the time. Defendant also points
out that the victim told her mother that she lied when she told her about the earlier abuse at the
home of her mother’s boyfriend. Defendant argues that this evidence requires concluding that the
great weight of the evidence went against his conviction.
Nothing about the victim’s testimony, however, rises to the level of intrinsic implausibility,
hopeless internal contradiction, or impeachment that would warrant overturning the jury’s verdict.
The prosecution presented evidence of defendant’s statements to the victim during the Facebook
messaging exchanges which included photos and videos of himself, all of which corroborated the
victim’s testimony. Evidence established that defendant questioned the victim about how it made
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her feel when he had sexual relations with her and he told her that he liked rubbing her all over
and missed it. Such evidence supported the victim’s claims of sexual abuse by defendant.
Further, the record reflects that important details of the victim’s statements, including her
identification of defendant as her abuser and the manner in which defendant sexually abused her
did not vary. Defendant’s pointing out the possible inability of the victim to observe him because
of darkness does not deprive the victim’s testimony of “all probative value” or lead to a conclusion
that a reasonable jury could not possibly believe it. Moreover, the victim’s memory issues and
inconsistency in testimony were presented to the jury. Despite inconsistencies in the victim’s
testimony or gaps in her memory, the evidence does not preponderate so heavily against the jury’s
verdict that it would be a serious miscarriage of justice to allow the verdict to stand. We are not
persuaded that the trial court abused its discretion when it denied defendant’s motion for a new
trial. Even when “testimony supporting the verdict has been impeached, if it cannot be said as a
matter of law that the testimony thus impeached was deprived of all probative value or that the
jury could not believe it, the credibility of witnesses is for the jury.” Lemmon, 456 Mich. at 643
(quotation marks omitted). The record reflects that the evidence did not weigh against the jury’s
verdict, and the prosecution presented the jury sufficient evidence from which it could find
defendant guilty of the charged offenses beyond a reasonable doubt. Therefore, defendant is not
entitled to reversal of his convictions or a new trial.
Affirmed.
/s/ James Robert Redford
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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