People of Michigan v. Terrance Lamont Jordan Sr

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 30, 2020
Plaintiff-Appellee,
v No. 347093
Kalkaska Circuit Court
TERRANCE LAMONT JORDAN, SR., LC No. 18-004144-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316(1)(b), and
armed robbery, MCL 750.529, and the trial court sentenced him to life imprisonment without the
possibility of parole for the murder conviction and 285 months to 85 years’ imprisonment for the
armed robbery conviction, with the sentences to be served concurrently. Defendant now appeals
as of right. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Defendant’s convictions stem from the robbery and shooting death of Broderick Ward.
The testimony at trial reflected that shortly before the night of the shooting, defendant became
associated with two individuals who sold drugs for Ward. At least one of these individuals did not
feel fairly treated by Ward. There was further testimony indicating that defendant and his new
associates confronted Ward, at which time Ward was robbed and shot to death. Defendant
admitted to the police that he shot Ward, but he testified at trial that he had falsely confessed to
the crime because he was scared of his new associates who had actually been responsible for the
robbery and murder. He further testified at trial that he had been drugged and that he was not
involved in the killing or robbery. Defendant was convicted and sentenced as previously noted.
II. ANALYSIS
On appeal, defendant raises claims of prosecutorial misconduct and ineffective assistance
of counsel. Defendant’s prosecutorial misconduct claim is based on numerous objections that were
made by the prosecutor at trial during defense counsel’s questioning of witnesses, as well as
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statements made by the prosecutor during his questioning of witnesses and his closing and rebuttal
arguments. Defendant’s ineffective assistance of counsel claim is predicated on defense counsel’s
failure to object at trial to these instances of alleged prosecutorial misconduct.
A. PROSECUTORIAL MISCONDUCT
This Court generally reviews claims of prosecutorial misconduct “de novo to determine if
the defendant was denied a fair and impartial trial.” People v Thomas, 260 Mich App 450, 453;
678 NW2d 631 (2004). However, if the defendant fails to contemporaneously object or request a
curative instruction regarding the alleged misconduct, our review on appeal “is limited to
ascertaining whether plain error affected defendant’s substantial rights.” People v Brown, 279
Mich App 116, 134; 755 NW2d 664 (2008). Defendant concedes on appeal that he did not preserve
his prosecutorial misconduct claim in the trial court by objecting to the alleged instances of
misconduct and that plain error review applies. “Reversal is warranted only when plain error
resulted in the conviction of an actually innocent defendant or seriously affected the fairness,
integrity, or public reputation of judicial proceedings, independent of defendant’s innocence.”
People v Ackerman, 257 Mich App 434, 448-449; 669 NW2d 818 (2003). “[W]here a curative
instruction could have alleviated any prejudicial effect we will not find error requiring reversal.”
Id. at 449. “The defendant bears the burden of demonstrating that such an error resulted in a
miscarriage of justice.” Brown, 279 Mich App at 134.
In this case, defendant raises 19 instances in which he alleges the prosecutor committed
misconduct. These instances largely involve complaints about the language employed by the
prosecutor in (1) questioning witnesses, (2) making objections to defense counsel’s questioning of
witnesses, and (3) portions of the prosecutor’s closing and rebuttal argument. Defendant primarily
complains about the prosecutor’s statements insinuating that defense counsel’s arguments and
questioning of various witnesses were designed to mislead or confuse the jury, as well as what
defendant characterizes as unnecessarily “sarcastic” and “unacceptable” statements made by the
prosecutor that allegedly disparaged defense counsel. Defendant also contends that certain
statements by the prosecutor impermissibly shifted the burden of proof.
“A prosecutor may not suggest that defense counsel is intentionally attempting to mislead
the jury.” People v Watson, 245 Mich App 572, 592; 629 NW2d 411 (2001). This type of
argument by a prosecutor “impermissibly shifts the focus from the evidence itself to the defense
counsel’s personality.” People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010) (quotation
marks and citation omitted). A prosecutor may not make arguments implying that the defendant
must prove something or explain evidence damaging to the defense, nor may a prosecutor
comment on the defendant’s failure to put forth evidence, because doing so tends to shift the
burden of proof onto defendant. Id. at 463-464. Further, a prosecutor “must refrain from
denigrating a defendant with intemperate and prejudicial remarks.” People v Bahoda, 448 Mich
App 261, 282-283; 531 NW2d 659 (1995).
The main problem with defendant’s argument is found in the fact that the trial court
overruled most of the prosecutor’s objections in which the prosecutor asserted that defense counsel
was misleading or confusing the jury. By doing so, the trial court permitted defense counsel to
continue his questioning. Additionally, if follows that if the trial court overruled most of the
prosecutor’s objections that defense counsel was misleading or confusing the jury, the implication
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when the trial court overruled most of the prosecution’s objections was that defense counsel was
not engaging in any improper or dishonest conduct.
Furthermore, to the extent defendant asserts on appeal that the prosecutor’s repeated
improper comments were so pervasive that they destroyed defendant’s chance of having a fair trial
before defendant took the stand to testify in his own defense, defendant does not meaningfully
develop this argument and does not support it with any citations to legal authority. Defendant has
thus abandoned this argument. “An appellant may not merely announce his position and leave it
to this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment [of an issue] with little or no citation of supporting authority. Defendant’s failure to cite
any supporting legal authority constitutes an abandonment of this issue.” Watson, 245 Mich App
at 587 (quotation marks and citation omitted; alteration in original). Moreover, the jury was also
instructed at the conclusion of trial that the attorneys’ statements and arguments were not evidence,
that the jury’s verdict could only be rendered on the basis of properly admitted evidence, that it
was the jury’s task to determine whether it believed what each witness said, that the prosecutor
was required to prove each element of the crimes beyond a reasonable doubt, and that the defendant
was “not required to prove his innocence or to do anything.” “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); see also id. at 276.1
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant argues that defense counsel was ineffective for failing to object to the
alleged instances of prosecutorial misconduct.
“To establish a claim of ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient and that there is a reasonable probability that, but for the
deficiency, the factfinder would not have convicted the defendant.” Unger, 278 Mich App at 242
(quotation marks and citation omitted).
Here, defendant asserts that there was no legitimate strategic reason for defense counsel to
refrain from objecting to the instances of alleged prosecutorial misconduct. However, as
previously stated, the trial court overruled most of the assistant prosecutor’s objections
mischaracterizing defense counsel’s questions. Additionally, from this record we also glean that
defense counsel did not object because he did not view these statements as personal attacks likely
to have any impact on the defense or because he believed that the prosecutor’s overzealous
tendency to make unnecessarily verbose objections and arguments was negatively impacting the
jury’s view of the prosecutor rather than the jury’s view of defendant. Hence, contrary to
defendant’s assertions on appeal, there were numerous strategic reasons for defense counsel to
refrain from objecting, recognizing that: “[d]eclining to raise objections can often be consistent
with sound trial strategy.” Id. at 253. We were not present at trial and we do not “assess counsel’s
1
Our rejection of this argument should not be construed as an affirmance of the assistant
prosecutor’s behavior or verbiage during this trial. We do, however, appreciate the composure
and patience exhibited by the trial court.
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competence with the benefit of hindsight,” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d
887 (1999).
Moreover, other than asserting that he was prejudiced by the prosecutor’s comments,
defendant does not explain why, in light of the testimony and evidence demonstrating his guilt,
there was a reasonable probability that the jury would not have convicted him—despite this
evidence of guilt—if defense counsel had objected to the alleged instances of misconduct that
defendant now claims amounted to personal attacks on defense counsel. Defendant cannot
demonstrate the requisite prejudice to succeed on his ineffective assistance of counsel claim in this
case—i.e., that there is a reasonable probability that he would not have been convicted had defense
counsel objected to the alleged instances of prosecutorial misconduct—without even confronting
or discussing the record evidence supporting his guilt and why he believes that the jury probably
convicted him based on the prosecutor’s allegedly improper remarks rather than on the basis of
the evidence tending to show defendant’s guilt. Unger, 278 Mich App at 242. Defendant has
therefore failed to establish that he received ineffective assistance of counsel.2
We discern no error and accordingly affirm the convictions and sentences of defendant.
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Deborah A. Servitto
2
This Court previously denied defendant’s motion to remand “without prejudice to a case call
panel of this Court determining that remand is necessary once the case is submitted on a session
calendar.” People v Jordan, unpublished order of the Court of Appeals, entered August 12, 2019
(Docket No. 347093). Defendant has failed to persuade this Court that he is entitled to a remand
in this matter because defendant has not provided any offer of proof regarding what facts would
be established at such a hearing on remand and therefore has not demonstrated that further
“development of a factual record is required for appellate consideration of the issue.” MCR
7.211(C)(1)(a)(ii).
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