People of Michigan v. Roderick Dennis Gibson

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 3, 2015
Plaintiff-Appellee,
v No. 313890
Wayne Circuit Court
RODERICK DENNIS GIBSON, LC No. 11-009271-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 315933
Wayne Circuit Court
JERMAR WYNEAL GIBSON, LC No. 11-009271-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 316473
Wayne Circuit Court
DUANE DONTA THOMAS, LC No. 11-009271-FC
Defendant-Appellant.
Before: CAVANAGH, P.J., and JANSEN and RONAYNE KRAUSE, JJ.
PER CURIAM.
In September 2012, a jury convicted defendant Roderick Gibson (“Roderick”) of three
counts of first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Roderick was tried jointly
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with defendants Duane Thomas (“Thomas”) and Jermar Gibson (“Jermar”) before a single jury,
but the jury was unable to reach a verdict with respect to Thomas and Jermar, resulting in a
mistrial for those two defendants. Thomas and Jermar were retried in March 2013, again before
a single jury, which convicted both defendants of three counts of first-degree premeditated
murder and also convicted Thomas of felony-firearm (third offense). All three defendants were
sentenced to three terms of life imprisonment without parole, to be served concurrently.
Roderick also received a consecutive two-year term of imprisonment for his felony-firearm
conviction and Thomas received a consecutive ten-year term of imprisonment for his felony-
firearm (third offense) conviction. All three defendants appeal by right; we affirm in each
appeal.
Defendants’ convictions arise from the June 4, 2011, shooting deaths of Curtis Burnett,
Gary Owens, Jr., and Shemar Johnson. The prosecution’s theory was that the shooting was a
setup, arranged by Jermar, because he owed Owens a substantial amount of money. After Jermar
made arrangements to meet with Owens, Owens arrived in a vehicle with Burnett and Johnson.
Jermar flagged down Owens’s car. When the car stopped, Roderick and Thomas both proceeded
toward the car and fired guns into the vehicle, killing all three occupants. Thomas also received
a gunshot wound during the offense. The prosecution’s primary witness at trial was Cleophus
Pye, who had known all three defendants for many years. Pye claimed that he heard Roderick
and Jermar planning the crime beforehand, and witnessed the actual shootings. A fourth
codefendant, Omar Johnson, was also tried jointly with the other three defendants at the original
trial in September 2012, but he opted for a bench trial. Omar was charged for his role in
assisting the defendants after the shooting. The trial court found Omar guilty of tampering with
evidence, MCL 750.483a, accessory after the fact, MCL 750.505, and felony-firearm.
I. DOCKET NO. 313890: RODERICK GIBSON’S APPEAL
A. MISTRIAL
Roderick first argues that the trial court erred in denying his motion for a mistrial. The
motion was brought after a police officer, Johnell White, disclosed during his testimony that he
was called away from his investigation of the shooting scene to meet with an anonymous person
who claimed to have witnessed the shooting. After a defense objection, the parties discussed the
matter outside the presence of the jury. Information about the anonymous person was first
revealed to the prosecutor shortly before Officer White testified, but the prosecutor did not
disclose this information to defense counsel before Officer White was called to testify. The trial
court agreed that any statements by the anonymous person would be inadmissible hearsay, and
thus precluded the admission of any statements.1 The court also prohibited the prosecutor from
eliciting further testimony about the anonymous person for the purpose of explaining what
Officer White did after meeting with the anonymous person. No further references to the
anonymous person were made in the jury’s presence. The trial court concluded that the limited
1
The court was informed that the anonymous person had identified Thomas and Roderick as the
shooters.
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testimony regarding the anonymous person that had already been presented was not prejudicial
to Roderick and, accordingly, denied his motion for a mistrial.
A trial court’s decision to grant or deny a mistrial is reviewed for an abuse of discretion.
People v Rutherford, 208 Mich App 198, 202; 526 NW2d 620 (1994); People v Blackburn, 94
Mich App 711, 714; 290 NW2d 61 (1980). A mistrial is warranted only when an error or
irregularity in the proceeding prejudices the defendant and impairs his ability to receive a fair
trial. People v Waclawski, 286 Mich App 634, 708; 780 NW2d 321 (2009); People v Alter, 255
Mich App 194, 205; 659 NW2d 667 (2003). A mistrial should be granted only when the
prejudicial effect of an error cannot be removed in any other way. People v Horn, 279 Mich App
31, 36; 755 NW2d 212 (2008).
The jury heard only that Officer White had left the crime scene to go to another location
to meet with an apparent witness to the shooting. No evidence was offered indicating what this
anonymous person may have heard or seen, or how the officer’s encounter with the witness
impacted the case. Contrary to what Roderick argues, there is no indication that any statements
by this anonymous person were admitted at trial. Indeed, the trial court agreed that any
statements by the person would be inadmissible hearsay and thus could not be admitted. And
because the anonymous person did not testify and no statement from the anonymous person was
admitted, there was no violation of Roderick’s right of confrontation. The trial court also
prohibited further inquiry regarding the anonymous person for the purpose of explaining Officer
White’s actions after meeting with the anonymous person. Under the circumstances, there is no
basis for concluding that the mere reference to the anonymous person was prejudicial to
Roderick. Accordingly, the trial court did not abuse its discretion in denying Roderick’s motion
for a mistrial.
B. DISCOVERY
Roderick next argues that the prosecutor’s failure to produce during discovery
information regarding the police department’s efforts to canvass the neighborhood after the
shooting requires reversal. “A trial court’s decision regarding discovery is reviewed for [an]
abuse of discretion.” People v Phillips, 468 Mich 583, 587; 663 NW2d 463 (2003).
At trial, the officer in charge, Derrick Maye, testified that the police did not canvass the
neighborhood for witnesses on the day of the shooting because it was daylight outside and many
people were outside, thus allowing anyone involved or those close to the shooters to see who was
talking to the police. Accordingly, no canvass sheets were compiled. Officer Maye explained
that he returned at some later time to canvass the neighborhood for any additional witnesses.
When defendants complained that they did not receive any canvass sheets for this later activity,
Officer Maye explained that no sheets were prepared, but he acknowledged that information
about his additional canvassing efforts could be found in his activity logs. The trial court
ordered that the activity logs be provided to defendants before Officer Maye resumed testifying.
When testimony resumed the next day, Officer Maye testified that his efforts to locate witnesses
were not successful. Defendants did not further object to Officer Maye’s testimony after they
received the activity logs.
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MCR 6.201(J) provides a trial court with various options for responding to a discovery
violation in a criminal case. The rule provides:
If a party fails to comply with this rule, the court, in its discretion, may
order the party to provide the discovery or permit the inspection of materials not
previously disclosed, grant a continuance, prohibit the party from introducing in
evidence the material not disclosed, or enter such other order as it deems just
under the circumstances. Parties are encouraged to bring questions of
noncompliance before the court at the earliest opportunity. Wilful violation by
counsel of an applicable discovery rule or an order issued pursuant thereto may
subject counsel to appropriate sanctions by the court. An order of the court under
this section is reviewable only for abuse of discretion.
In this case, the trial court permitted the defendants to inspect Officer Maye’s activity
logs, material that had not previously been produced, before Officer May resumed testifying.
Because no canvass sheets were ever compiled, there were no canvassing records to produce
during discovery. It is unclear whether the activity logs were required to be produced.
Assuming that they were, we conclude that the trial court’s remedy of furnishing that
information to defense counsel before Office Maye resumed testifying was adequate to address
the situation and, therefore, the trial court did not abuse its discretion.
The testimony at trial indicated that the additional canvassing of the neighborhood did
not lead to any new evidence, either exculpatory or inculpatory, and Roderick does not explain
how the late disclosure of the activity log information prejudiced his case. To the extent
Roderick argues that the trial court should have granted a continuance to provide him with more
time to review the records, he does not explain why more time was necessary, and he did not
request any additional time when the records were turned over. A trial court does not abuse its
discretion by failing to grant a continuance in the absence of a request. People v McCrady, 213
Mich App 474, 481; 540 NW2d 718 (1995).
C. PROSECUTORIAL MISCONDUCT
Roderick next argues that a new trial is required because the prosecutor improperly
vouched for the credibility of Pye, her primary witness, during closing argument. Because there
was no objection to the prosecutor’s comments at trial, this issue is unpreserved. We review an
unpreserved claim of prosecutorial misconduct for plain error affecting substantial rights.
People v Abraham, 256 Mich App 265, 274-275; 662 NW2d 836 (2003).
Claims of prosecutorial misconduct are decided case by case and the challenged
comments must be read in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18
(1996). It is improper for a prosecutor to vouch for the credibility of her witnesses by suggesting
that she has some special knowledge about the witnesses’ truthfulness. People v Meissner, 294
Mich App 438, 456; 812 NW2d 37 (2011); People v Thomas, 260 Mich App 450, 455; 678
NW2d 631 (2004). However, the prosecutor is free to argue that a witness is credible based on
the evidence and reasonable inferences drawn from the evidence. Id. at 454-455.
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Viewed in context, the prosecutor’s comments did not refer to any personal beliefs or
special knowledge about Pye’s credibility. Rather, the prosecutor argued that Pye was a credible
witness for reasons grounded in the evidence. At trial, Pye explained that he delayed in coming
forward because he feared for his life and for his family’s safety. He also testified that he had
known the defendants all of his life and considered them to be family. It was not inappropriate
for the prosecutor to emphasize these circumstances in arguing that Pye’s testimony was
credible. Accordingly, the prosecutor’s remarks were not improper and there was no error, plain
or otherwise. We also reject defendant’s related ineffective assistance of counsel argument.
Because the prosecutor’s remarks were not improper, defense counsel’s failure to object was not
objectively unreasonable. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
II. DOCKET NO. 315933: JERMAR GIBSON’S APPEAL
A. SUFFICIENT EVIDENCE
Defendant Jermar Gibson observes that there was no evidence that he directly
participated in shooting any of the victims, and argues that the evidence was insufficient to
convict him of three counts of first-degree premeditated murder under and aiding and abetting
theory. We disagree.
“In determining whether the prosecution presented sufficient evidence to sustain a
conviction, this Court must construe the evidence in the light most favorable to the prosecution
and consider whether a rational trier of fact could have determined that all the elements of the
crime were proven beyond a reasonable doubt.” People v Schaw, 288 Mich App 231, 233; 791
NW2d 743 (2010). Circumstantial evidence and any reasonable inferences that can be drawn
from the evidence may be sufficient to prove the elements of a crime. People v Abraham, 234
Mich App 640, 656; 599 NW2d 736 (1999). “This Court will not interfere with the trier of fact’s
role of determining the weight of the evidence or the credibility of witnesses.” People v John
Williams, Jr, 268 Mich App 416, 419; 707 NW2d 624 (2005). All conflicts in the evidence must
be resolved in favor of the prosecution. People v Jackson, 292 Mich App 583, 587-588; 808
NW2d 541 (2011).
A conviction for first-degree premeditated murder requires proof that the defendant
intentionally killed the victim and that the act of killing was premeditated and deliberate.
Premeditation and deliberation require sufficient time to allow the defendant to take a second
look. Id. at 588. Premeditation and deliberation can be inferred from the surrounding
circumstances, but the inferences cannot be speculative and they must have support in the record.
People v Plummer, 229 Mich App 293, 301; 581 NW2d 753 (1998). Factors that may be
considered in establishing premeditation include (1) the previous relationship between the
defendant and the victim, (2) the defendant’s actions before and after the crime, and (3) the
circumstances of the killing, including the weapon used and the location of the wounds inflicted.
Id. at 300.
A person who aids or abets the commission of a crime may be convicted and punished as
if he directly committed the offense. MCL 767.39. To prove that a defendant aided and abetted
the commission of a crime, the prosecution must show that (1) the crime charged was committed
by the defendant or another person, (2) the defendant performed acts or gave encouragement that
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assisted in the commission of the crime, and (3) the defendant intended the commission of the
crime or had knowledge that the principal intended its commission at the time he gave aid and
encouragement. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). An aider and
abettor’s state of mind may be inferred from all of the facts and circumstances of the crime.
Carines, 460 Mich at 757. Factors that can be considered include a close association between
the principal and the defendant, the defendant’s participation in the planning and execution of the
crime, and evidence of flight after the crime. Id. at 757-758. “Mere presence, even with
knowledge that an offense is about to be committed or is being committed, is insufficient to
show that a person is an aider and abettor.” People v Wilson, 196 Mich App 604, 614; 493
NW2d 471 (1992).
Although Jermar argues that he was merely present when Roderick and Thomas shot the
victims, the evidence supported an inference that Jermar actively assisted in the commission of
the offenses. The evidence indicated that Jermar lured the victims to the location where Thomas
and Roderick were waiting for them, and that Jermar announced the victims’ arrival just before
Roderick and Thomas began their siege on the vehicle. This evidence supported an inference
that Jermar was acting in concert with Roderick and Jermar. The evidence also supported an
inference that Jermar had a motive to set up the confrontation because he owed a substantial
amount of money to Owens. Viewed in a light most favorable to the prosecution, the evidence
was sufficient to enable the jury to find beyond a reasonable doubt that Jermar aided and abetted
the premeditated killing of the three victims.
B. THE CODEFENDANT’S STATEMENT
Jermar next argues that he was denied a fair trial by the admission of Roderick’s
statement before the offense, during which Roderick asked Pye to move his car because “it’s
about to go down.” Jermar argues that this statement was not admissible against him, and that its
admission violated his rights under the Confrontation Clause. Jermar concedes that there was no
objection to the statement at trial, but argues that his defense attorney was ineffective for failing
to object.
Jermar’s unpreserved Confrontation Clause claim is reviewed for plain error affecting
substantial rights. Carines, 460 Mich at 761-767. To establish ineffective assistance of counsel,
Jermar must show that his counsel’s performance fell below an objective standard of
reasonableness and that the representation so prejudiced him that he was denied the right to a fair
trial; he must also overcome the presumption that the challenged action might be considered
sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). To
establish prejudice, Jermar must show that there is a reasonable probability that, but for his
counsel’s error, the result of the proceeding would have been different. People v Johnnie
Johnson, Jr, 451 Mich 115, 124; 545 NW2d 637 (1996).
The Confrontation Clause applies to out-of-court statements introduced at trial.
However, the Confrontation Clause applies only to statements that are testimonial in nature.
People v Taylor, 482 Mich 368, 374, 377-378; 759 NW2d 361 (2008). Statements are
testimonial when made under circumstances that would lead an objective declarant to reasonably
believe that they would be available for use at a later criminal proceeding. Id. at 377-378.
Roderick’s statement to Pye was not made under circumstances suggesting a reasonable belief
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that it would be used at a later trial. Roderick made the informal statement to Pye, a friend. The
statement was not made in a testimonial capacity or in the context of any pending or
contemplated legal proceeding. Accordingly, admission of the statement did not violate Jermar’s
rights under the Confrontation Clause. Id. at 378. The admissibility of the statement is instead
governed by the Rules of Evidence. Id.Roderick’s statement was admissible under MRE 803(3), as a statement of the declarant’s
then existing state of mind. The exception in MRE 803(3) is only available when the declarant’s
state of mind is at issue. People v Lucas, 138 Mich App 212, 220; 360 NW2d 162 (1984). The
codefendants’ states of mind were at issue with regard to the charges against Jermar because the
jury had to determine the codefendants’ intent, and whether Jermar’s actions were consistent
with the codefendants’ intent. Moreover, it was not necessary for Jermar to be present when
Roderick made the statement to Pye. See People v Brownridge (On Remand), 237 Mich App
210, 216-217; 602 NW2d 584 (1999); People v Ortiz-Kehoe, 237 Mich App 508, 517; 603
NW2d 802 (1999); People v Paintman, 92 Mich App 412, 420; 285 NW2d 206 (1979), rev’d on
other grounds 412 Mich 518 (1982).
Even if the statement qualifies as hearsay, however, Jermar has not overcome the
presumption that his attorney did not object as a matter of sound strategy. Jermar’s defense
theory was that he was merely present and did not participate in the offense, which was
committed solely by Roderick and Thomas. The disputed statement implicated Roderick in the
offenses by supporting an inference that he had planned the crime. Roderick did not refer to
Jermar or anyone else in his statement, and Pye testified that he did not observe any
communication between Jermar and Roderick before the shooting. Under these circumstances,
defense counsel reasonably may have concluded that the statement was not harmful to Jermar
because it was consistent with the defense theory that Roderick was responsible for the
commission of the crime, and the statement did not implicate Jermar. Thus, defense counsel’s
failure to object was not objectively unreasonable.
Although Jermar asks this Court to remand the case for an evidentiary hearing “to
determine certain facts and to clarify circumstances that aren’t apparent in the record,” he does
not explain what facts or circumstances need to be determined or clarified. Accordingly, we
deny Jermar’s request for an evidentiary hearing.
C. GREAT WEIGHT OF THE EVIDENCE
Jermar lastly argues that he is entitled to a new trial because the jury’s verdict was against
the great weight of the evidence. Because Jermar did not preserve this issue by raising it in a
motion for a new trial, our review is limited to plain error affecting Jermar’s substantial rights.
People v Cameron, 291 Mich App 599, 617-618; 806 NW2d 371 (2011); People v Musser, 259
Mich App 215, 218; 673 NW2d 800 (2003).
The sole basis for Jermar’s great-weight-of-the-evidence argument is that Pye was not a
credible witness. In Musser, 259 Mich App at 218-219, this Court explained:
The test to determine whether a verdict is against the great weight of the
evidence is whether the evidence preponderates so heavily against the verdict that
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it would be a miscarriage of justice to allow the verdict to stand. People v
McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001). “Conflicting
testimony, even when impeached to some extent, is an insufficient ground for
granting a new trial.” People v Lemmon, 456 Mich 625, 647; 576 NW2d 129
(1998). “[U]nless it can be said that directly contradictory testimony was so far
impeached that it ‘was deprived of all probative value or that the jury could not
believe it,’ or contradicted indisputable physical facts or defied physical realities,
the trial court must defer to the jury’s determination.” Id. at 645-646 (citation
omitted).
Although it is apparent that Pye was a critical prosecution witness and that the jury’s
verdict was dependent upon its finding that Pye was credible, there is no basis for concluding
that Pye’s credibility was so far impeached that it was deprived of all probative value.
Independent ballistics and medical evidence was consistent with Pye’s testimony that at least two
different weapons were used during the offense. The physical evidence indicated that both a
high-powered or high-velocity weapon, such as an AK-47, and another gun, such as a .38 caliber
handgun, were used, which was consistent with Pye’s account of the shooting. Whereas Pye
testified that Thomas, using a .38 caliber handgun, shot the driver, the medical testimony
indicated that the driver’s wounds were more consistent with having been caused by an AK-47.
However, Pye also testified that Thomas and Roderick were both firing into the vehicle at the
same time, so it was not implausible for the jury to find that their gunshots struck victims at
opposite sides of the vehicle. Pye also testified that Jermar told him the day after the shooting
that the shooting took place because Jermar thought that “Owens was coming to do something to
him, [Jermar] owed [Owens] ten thousand dollars, but f**k him.” Jermar speculates that the
jury’s verdict was based on sympathy for Pye, but he has not established that Pye’s testimony
was inconsistent with indisputable facts or so far impeached that it was deprived of all probative
value. The jury’s verdict was not against the great weight of the evidence.
III. DOCKET NO. 316473: DUANE THOMAS’S APPEAL
A. APPELLATE COUNSEL’S ISSUES
1. EVIDENCE OF THREATS
Defendant Thomas argues that the trial court erred in allowing evidence of threats against
Pye when there was no evidence connecting those threats to Thomas. Thomas also argues that
the trial court erred in allowing the officer in charge to offer testimony describing police
assistance to Pye and his family. Although Thomas objected to the evidence of threats, he did
not object to the evidence of the police assistance to Pye and his family, leaving that issue
unpreserved. We review preserved evidentiary decisions for an abuse of discretion, People v
Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008), but review unpreserved claims of
evidentiary error for plain error affecting substantial rights, Carines, 460 Mich at 761-767.
Thomas correctly observes that evidence of threats against a witness is not admissible to
show a defendant’s consciousness of guilt unless there is a connection between the threats and
the defendant. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996); People v Lytal, 119
Mich App 562, 576-577; 326 NW2d 559 (1982). In this case, however, the evidence of threats
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against Pye was not offered to show consciousness of guilt, but rather for its relevancy to Pye’s
credibility. Specifically, the evidence was relevant to explain Pye’s delay or hesitation in
coming forward to cooperate with the police and identify the suspects. See MRE 402.
Moreover, we disagree with Thomas’s suggestion that the evidence should have been excluded
because it was unduly prejudicial. Under MRE 403, the trial court has discretion to exclude
relevant evidence if its probative value is substantially outweighed by the danger of unfair
prejudice. Because the testimony was not offered to show Thomas’s consciousness of guilt, and
because Pye did not offer any details about the source of the threats or suggest that they were
attributable to Thomas, any claim of prejudice is unfounded. Accordingly, the trial court did not
abuse its discretion in admitting the evidence of the threats against Pye.
We also conclude that the evidence of the police assistance to Pye and his family did not
constitute plain error. The testimony indicated that Pye was given financial and other assistance
to help him and his family temporarily relocate until they could move out of the area. Evidence
of benefits received by a witness is relevant to the witness’s credibility, and it is not improper for
the prosecutor to elicit such evidence so as not to appear to be hiding that information. See State
v Harris, 521 NW2d 348, 351-352 (Minn, 1994). There is no indication that the prosecutor
attempted to exploit the evidence for an improper purpose, such as by suggesting that Thomas
was directly responsible for the threats against Pye. And considering that multiple defendants
had been charged in the matter, there was no basis for the jury to attribute any threats specifically
to Thomas.
Thomas also argues that defense counsel was ineffective for not objecting to the
testimony or requesting an instruction advising the jury that Thomas was not responsible for any
threats and that the evidence could not be considered to show Thomas’s consciousness of guilt.
Because there was no error in admitting the evidence in question, defense counsel cannot be
considered ineffective for failing to object. Ericksen, 288 Mich App at 201. Further, because
there was no suggestion that Thomas was connected to the threats, and because the evidence of
threats was not offered to show consciousness of guilt, it was not unreasonable for counsel to
believe that a cautionary instruction from the trial court was unnecessary. We reject Thomas’s
claim of ineffective assistance of counsel in this regard.
2. TELEPHONE RECORDS
Thomas next argues that the trial court erred by denying his mid-trial request for
production of Pye’s telephone records. We disagree. Thomas failed to show that the evidence
was relevant to an issue at trial. “Relevant evidence” is “evidence having any tendency 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.” MRE 401. Thomas sought the
telephone records to determine whether Pye actually called 911 or called the police, as he
claimed in his testimony. However, it was undisputed that Pye had made at least one 911 call
after the shooting, the content of which was played for the jury; Pye admitted that it was his
voice on the recording. It was also undisputed that Pye had contacted the police and eventually
agreed to cooperate with the investigation of the shooting. The trial court did not abuse its
discretion in concluding that Thomas failed to identify a relevant purpose for production of Pye’s
telephone records. Unger, 278 Mich App at 216.
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3. INEFFECTIVE ASSISTANCE OF COUNSEL
Thomas argues that defense counsel was ineffective for eliciting from Pye testimony that
referred to Thomas as a “jacker.” The challenged testimony was presented in the context of the
following exchange:
Q. [By Thomas’s counsel:] Okay. Would I be correct if I said that you
really didn’t believe that Mr. Thomas was the one that carried a gun?
A. Say that again. I’m not understanding the question.
Q. Did Mr. Thomas carry a gun?
A. Yeah, he was a jacker, he jack people, he kept a gun.
THE COURT: Please, sir. Just answer the question.
THE WITNESS: Oh, I’m sorry. Yes, yes.
BY MR. KINNEY:
Q. He kept a gun?
A. Yes.
Q. Okay. And you told the police what you just told us?
A. About what?
Q. What you just told us about him carrying a gun?
A. Yeah.
Counsel was attempting to clarify whether Pye had reason to believe that a gun he
observed a week before the shooting was Thomas’s weapon. Counsel’s question only required a
yes or no response. It is not apparent that counsel should have anticipated that Pye would
additionally volunteer that Thomas was a “jacker.” Because the response was unsolicited, brief,
and isolated, it is unlikely that the trial court would have granted a mistrial had counsel requested
one. Unresponsive, volunteered answers to proper questions are generally not grounds for a
mistrial. People v Griffin, 235 Mich App 27, 36; 597 NW2d 176 (1999), overruled on other
grounds in People v Thompson, 477 Mich 146; 730 NW2d 708 (2007). Although counsel could
have requested that Pye’s unresponsive answer be stricken, counsel may have preferred to leave
the comment alone, rather than objecting and drawing further attention to it, particularly where
the trial court had already interjected and instructed Pye to just answer the question. See Unger,
278 Mich App at 242. Under the circumstances, Thomas has not overcome the presumption that
counsel’s failure to request that the response be stricken was unsound strategy. Tommolino, 187
Mich App at 17. Thomas has not established that defense counsel was ineffective.
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B. THOMAS’S SUPPLEMENTAL BRIEF
Thomas raises several additional issues in a supplemental brief filed in propria persona,
none of which has merit.
Thomas first argues that the prosecutor made misstatements of fact during opening
statement and closing argument. Because there were no objections to the challenged remarks,
our review of this issue is limited to plain error affecting Thomas’s substantial rights. Abraham,
256 Mich App at 274-275. “A prosecutor may not make a statement of fact to the jury that is
unsupported by evidence, but [he] is free to argue the evidence and any reasonable inferences
that may arise from the evidence.” People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818
(2003). The record does not support Thomas’s claim that the prosecutor intentionally misstated
facts. The prosecutor was explaining how he believed the shooting occurred. His comments
were supported by the evidence and reasonable inferences drawn from that evidence, specifically
Pye’s eyewitness testimony regarding the location of the shooters and the type of weapon
possessed by each shooter, as well as the ballistics and medical evidence regarding the location
and nature of the victims’ wounds. Thus, there was no plain error. Further, the trial court
instructed the jury that statements by the attorneys are not evidence. The trial court’s instruction
was sufficient to cure any perceived prejudice and to protect Thomas’s substantial rights.
Thomas also raises several claims of ineffective assistance of counsel. Thomas first
argues that counsel was ineffective for not cross-examining the medical examiner regarding
evidence of close-range firing. The questioning of witnesses is presumed to be a matter of trial
strategy. People v Petri, 279 Mich App 407, 413; 760 NW2d 882 (2008). Thomas does not
explain the significance of this issue or how it was likely to affect the jury’s verdict. Further, he
does not identify any basis for challenging the medical examiner’s conclusion that there was no
evidence of close-range firing. Accordingly, he has failed to establish either that defense
counsel’s questioning was deficient or that there is a reasonable probability that the outcome of
the trial would have been different if counsel had pursued this subject on cross-examination.
Thomas also argues that defense counsel was ineffective for not cross-examining Officer
Maye about notes that Pye allegedly made, but later could not find. Thomas has not provided
any reason for believing that cross-examination on this subject would have been helpful to his
case. Pye’s testimony at trial was based on his personal recollection of the events, not the notes.
Thomas has not provided any basis for concluding that there is a reasonable probability that
defense counsel’s failure to pursue this issue on cross-examination affected the outcome of the
trial.
Thomas further asserts that defense counsel was ineffective for not offering a 911
recording to establish that one of the callers saw Thomas on the street corner, but did not see
Thomas go to Omar Johnson’s house. Again, Thomas fails to explain the significance of this
evidence. Pye had testified that Thomas went to Omar Johnson’s house after the shooting, and
then left the house and walked down the street. The police found a blood trial, consistent with
Thomas’s DNA profile, that led from Omar Johnson’s house to the street corner. In light of the
evidence that Thomas walked down the street after leaving Omar Johnson’s house, there is no
reasonable probability that the result of the trial would have been different if counsel had
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presented evidence that a 911 caller reported seeing Thomas on the street corner, but did not see
him going to Omar Johnson’s house.
Thomas also claims that defense counsel was ineffective for not cross-examining Aaron
Hill, a defense witness called by Jermar, to establish that Pye, Hill, and “Buddah” (Brian
Thomas) were all related and that Hill never saw Thomas with a gun. Hill testified that he
encountered Thomas after Thomas had been shot, and Hill helped Thomas lie down on the grass
to await help. In light of the testimony that Thomas first went to Omar Johnson’s house after the
shooting, before walking down the street, evidence that Thomas did not have a gun when Hill
encountered him would not likely have affected the jury’s verdict. Further, Hill did identify
Brian Thomas as his uncle. Although Hill did not indicate that he was related to Pye, Thomas
fails to explain how that would have been significant. There is no basis for concluding that
Thomas was prejudiced by counsel’s failure to establish that fact.
Next, we find no merit in Thomas’s argument that the trial court failed to properly
respond to the jury’s request to review evidence. The trial court advised the jury that it could not
provide the requested information regarding the caliber of the “collector gun” possessed by
Jermar because no evidence on that subject had been presented. Thomas does not contend
otherwise. Because there was no evidence on that subject, there was nothing to provide.
Further, the record indicates that the trial court appropriately responded to the jury’s request for
findings by the medical examiner by furnishing the medical examiner’s exhibits. Thomas has
not demonstrated that this was insufficient to satisfy the jury’s request. Indeed, the fact that the
jury did not make any additional requests after receiving the exhibits indicates that it was
satisfied with what it received. Accordingly, no error has been shown.
Thomas next argues that police misconduct denied him a fair trial. The essence of this
argument is that the police testimony was not credible. The credibility of the police witnesses
was for the jury to resolve, and this Court will not resolve it anew. John Williams, Jr, 268 Mich
App at 419. Thomas has not identified any cognizable basis for relief with respect to this issue.
For his last claim of error, Thomas merely asserts, “Right to remain silent. People v
Bobo, 390 Mich 355; 212 NW2d 190 (1973).” An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claim. People v
Payne, 285 Mich App 181, 195; 774 NW2d 714 (2009). Because Thomas does not offer any
argument explaining how his right to remain silent was violated, this issue has been abandoned.
People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001).
We do note, however, that Officer Maye stated, “[W]hen I went to talk to them once they
arrested them they requested attorneys.” The trial court immediately intervened and advised the
jury that once a person is arrested, he or she has “the absolute constitution[al] right to remain
silent so if the police try to talk to them they don’t have to say anything, so you can’t hold that
against anyone.” Assuming that Officer Maye’s testimony is the basis for this claim of error, the
trial court’s instruction immediately after the objectionable response was sufficient to cure any
prejudice and to protect Thomas’s substantial rights. Accordingly, this unpreserved issue does
not require reversal.
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Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Amy Ronayne Krause
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