People of Michigan v. Sterling Lane ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 18, 2018
Plaintiff-Appellee,
v No. 335153
Wayne Circuit Court
STERLING LANE, LC No. 15-009679-01-FH
Defendant-Appellant.
Before: JANSEN, P.J., and FORT HOOD and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession of a firearm during
the commission of a felony (felony-firearm), third offense, MCL 750.227b; felon in possession
of a firearm, MCL 750.224f; felon in possession of ammunition, MCL 750.224f(6); and
possession of marijuana, MCL 333.7403(2)(d). Defendant was sentenced to 10 years’
imprisonment for the felony-firearm, third offense conviction, and to time served on the
remaining convictions. We affirm.
In his principal appellate brief and his Standard 4 brief, defendant argues that the trial
court erred in denying his motion to suppress evidence. We disagree.
A trial court’s findings of fact in a suppression hearing are reviewed for clear error, but
the ultimate decision on a motion to suppress is reviewed de novo. People v Hyde, 285 Mich
App 428, 436; 775 NW2d 833 (2009). This Court reviews de novo the underlying constitutional
issues, including whether a Fourth Amendment violation occurred. People v Henry (After
Remand), 305 Mich. App. 127, 137; 854 NW2d 114 (2014).
“The United States and the Michigan Constitutions guarantee the right to be secure
against unreasonable searches and seizures.” Henry, 305 Mich. App. at 137, citing US Const, Am
IV, and Const 1963, art 1, § 11. “The Michigan constitutional provision is generally construed to
afford the same protections as the Fourth Amendment.” People v Antwine, 293 Mich. App. 192,
194-195; 809 NW2d 439 (2011) (citation omitted). A warrantless search is deemed
unreasonable in the absence of probable cause and the applicability of an exception to the
warrant requirement. Henry, 305 Mich. App. at 137.
One of the exceptions to the Fourth Amendment warrant requirement is the so-
called “exigent circumstances” exception. “Hot pursuit” is a form of “exigent
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circumstances.” Under the hot pursuit exception, an officer may chase a suspect
into a private home when the criminal has fled from a public place. Other
recognized exigencies include the need to prevent the imminent destruction of
evidence, to preclude a suspect’s escape, and where there is a risk of danger to the
police or others inside or outside a dwelling. In the absence of hot pursuit, the
police must have probable cause to believe that at least one of the other three
circumstances exists, and the gravity of the crime and the likelihood that a suspect
is armed should be considered. The validity of a search without a warrant
ultimately turns on the reasonableness of the search, as perceived by the police.
[Id. at 138 (quotation marks and citations omitted).]
See also Warden v Hayden, 387 U.S. 294, 298-299; 87 S. Ct. 1642; 18 L. Ed. 2d 782 (1967) (holding
that exigent circumstances justified a warrantless entry into a house to search for a robber and
that “[t]he Fourth Amendment does not require police officers to delay in the course of an
investigation if to do so would gravely endanger their lives or the lives of others.”); People v
Cartwright, 454 Mich. 550, 558; 563 NW2d 208 (1997) (listing the circumstances that may
justify a warrantless entry of a residence, including “the hot pursuit of a fleeing felon, to prevent
the imminent destruction of evidence, to preclude a suspect’s escape, and where there is a risk of
danger to police or others inside or outside a dwelling.”).
At the evidentiary hearing on the motion to suppress, Detroit Police Officer William
Zeolla testified that he and his partner, Detroit Police Officer Daniel Harnphanich, responded to
a report of shots fired at 15464 Murray Hill, which is approximately two houses north of 15444
Murray Hill. They reached Murray Hill within five minutes of receiving the report. Zeolla was
driving a fully marked black special operations police vehicle. It was dark outside, and Zeolla
saw defendant walking on Murray Hill. Defendant was the only person that Zeolla saw in the
area. Zeolla illuminated defendant with a spotlight attached to Zeolla’s police vehicle. The
reason why Zeolla illuminated defendant was because there had been a report of shots fired in
the area, and Zeolla wanted to obtain visibility of anyone who was outside in case the person was
armed with a weapon or was perhaps still firing shots. After being illuminated, defendant
grabbed his right waistband area and ran toward a house located at 15444 Murray Hill, which
was about two houses away. On the basis of his experience as a police officer, Zeolla believed
that defendant’s behavior indicated that he was possibly armed with a handgun. Zeolla and
Harnphanich got out of their police vehicle and chased defendant on foot.
Zeolla testified that defendant entered the house located at 15444 Murray Hill by running
up the porch steps and through the front door. Before entering the house, defendant removed a
handgun from his right side. After defendant entered the house, and while Zeolla was still
outside running toward the house, Zeolla saw through a front picture window that defendant
leaned down near a couch that was positioned along the same wall as the picture window. Zeolla
could not see defendant’s arms or hands at that point. Harnphanich entered the house before
Zeolla did. As Zeolla entered the house, he saw that the entryway area was just a few feet and
that the living room defendant had entered was immediately to the right; Zeolla met defendant at
the front doorway and handcuffed defendant. Zeolla conducted a pat-down search of defendant’s
person for safety purposes and did not recover the handgun from defendant’s person. Zeolla then
walked to the couch area where he had seen defendant bend down; Zeolla saw the handle of a
gun visibly protruding from under a cushion that was on top of the couch. It was the same gun
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Zeolla had observed defendant possessing earlier. Zeolla recovered the handgun and placed it
into evidence. After determining that defendant did not possess a concealed pistol license,
Zeolla placed defendant under arrest. Zeolla determined from defendant’s identification card
that the house at 15444 Murray Hill was not defendant’s residence; rather, defendant’s
residential address was 2162 East Outer Drive. Defendant’s girlfriend lived at 15444 Murray
Hill.
Zeolla was the only witness to testify at the evidentiary hearing on the motion to
suppress. Defendant did not present any witnesses or evidence at the evidentiary hearing. When
defense counsel was presenting argument at the end of the evidentiary hearing, after defense
counsel had already stated that she was not going to present any witnesses, the trial court noted
that no evidence had been presented to indicate that defendant resided at 15444 Murray Hill or
that defendant had an expectation of privacy in that house. Defense counsel stated that she could
voir dire defendant in order to ask him questions about that. The trial court stated, “It’s too late.
It’s too late. We’re at argument. You had an opportunity to present it, and you didn’t. That’s
what I was waitin’ on, something to show that he would at least have an expectation of privacy
in that particular location. . . . I have to accept what’s placed on the record. There was nothing
to – to – to test Officer Zeolla’s information. And there certainly wasn’t nothin’ to counter it.”
Initially, we note that defendant failed to establish at the evidentiary hearing on his
motion to suppress that he possessed standing to contest the search of 15444 Murray Hill.
The right to be free from unreasonable searches and seizures is personal, and the
right cannot be invoked by a third party. For an individual to assert standing to
challenge a search, the individual must have had a legitimate expectation of
privacy in the place or location searched, which expectation society recognizes as
reasonable. A court determines the issue of standing by examining the totality of
the circumstances, and a defendant bears the burden of establishing that he has
standing. [People v Mahdi, 317 Mich. App. 446, 458-459; 894 NW2d 732 (2016)
(quotation marks and citations omitted).]
This Court has further explained:
Factors relevant to the determination of standing include ownership, possession
and/or control of the area searched or item seized; historical use of the property or
item; ability to regulate access; the totality of the circumstances surrounding the
search; the existence or nonexistence of a subjective anticipation of privacy; and
the objective reasonableness of the expectation of privacy considering the specific
facts of the case. [Id. at 459 (citation omitted).]
No evidence was presented at the suppression hearing to establish that defendant had a legitimate
expectation of privacy in the house located at 15444 Murray Hill. Defendant presented no
evidence or witnesses at the hearing. Zeolla, the only witness to testify at the hearing, indicated
that defendant’s girlfriend lived at the house and that defendant’s identification card contained a
different residential address. No evidence was presented at the suppression hearing that
defendant was staying at his girlfriend’s house or had any expectation of privacy there. Only
later, after defendant was convicted and moved for a new trial, did he produce evidence
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suggesting that he regularly stayed at 15444 Murray Hill and kept possessions there. A motion
for the suppression of evidence must be determined on the basis of the facts produced at the time
of the suppression hearing and cannot be amplified by evidence presented later. See People v
Kaigler, 368 Mich. 281, 288; 118 NW2d 406 (1962); People v Cutler, 73 Mich. App. 313, 319-
320; 251 NW2d 303 (1977). Defendant thus failed to establish at the suppression hearing that he
possessed standing to challenge the search of the house at 15444 Murray Hill.
In any event, Zeolla’s testimony at the suppression hearing established that exigent
circumstances justified the officers’ actions. First, there was no search or seizure of defendant
before he entered the house. “In order for any police procedure to have constitutional search and
seizure implications, a search or seizure must have taken place.” People v Frohriep, 247 Mich
App 692, 699; 637 NW2d 562 (2001) (citations omitted). Constitutional safeguards vest only
once a citizen has been seized. Id. The mere pursuit of a person does not constitute a seizure;
rather, the application of physical force or the suspect’s submission to an officer’s show of
authority is required in order for a seizure to have occurred. California v Hodari D, 499 U.S. 621,
626; 111 S. Ct. 1547; 113 L. Ed. 2d 690 (1991); see also People v Lewis, 199 Mich. App. 556, 559-
560; 502 NW2d 363 (1993) (holding that the defendant was not seized until a police officer
actually laid his hands on the defendant, and explaining that “[e]ven if we assume that the
officers’ pursuit of defendant amounted to a show of authority, because defendant did not submit
to that show of authority, no seizure occurred until [an officer] physically took hold of him.”).
Here, defendant fled from the police and did not submit to any show of authority before entering
the house, nor did the officers put their hands on defendant outside the house. Hence, no seizure
occurred before defendant entered the house. In any event, given that (1) the officers were
responding to a report of shots fired in the area, (2) defendant was the only person that the
officers saw walking in the area, and (3) defendant grabbed his right waistband area and fled
upon being illuminated by the police spotlight, the officers had reason to believe that defendant
may have been carrying a concealed weapon or may have been involved in the reported shooting
incident.
Further, the officers’ entry into the house at 15444 Murray Hill was justified by exigent
circumstances. The officers were pursuing defendant, who had exhibited suspicious behavior by
grabbing his right waistband area and fleeing upon being illuminated by a police spotlight in an
area where there had been a recent report of shots having been fired. Defendant then pulled a
handgun from his waistband area as he entered the house. The officers were thus pursuing a
fleeing suspect when they entered the house. The officers had reason to believe that defendant
could pose a danger to the officers or to persons inside the house given that defendant was in
possession of a firearm and had fled from the police in the vicinity in which there had been a
report of shots fired. Zeolla saw defendant through the picture window leaning down in the area
of a couch. It was thus reasonable to infer that defendant was attempting to conceal the firearm.
Overall, the entry into the house to pursue defendant was justified under the hot pursuit doctrine.
Once the officers entered the house, they were permitted to seize incriminating evidence
that was in plain view. “The plain view doctrine allows police officers to seize, without a
warrant, items in plain view if the officers are lawfully in a position from which they view the
item, and if the item’s incriminating character is immediately apparent.” People v Champion,
452 Mich. 92, 101; 549 NW2d 849 (1996) (citations omitted). As discussed, the officers had
lawfully entered the house in hot pursuit of defendant. Zeolla’s testimony indicated that he saw
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the handgun protruding from underneath a cushion on the top of the couch. The couch was to
the immediate right of the entryway. Zeolla had seen defendant leaning down in this area.
Zeolla indicated that it was the same handgun he had seen defendant retrieve from his right
waistband area upon entering the house. Zeolla thus had reason to believe that the handgun was
incriminating because it was the gun defendant appeared to have been concealing before he
entered the house.
In his Standard 4 brief, defendant suggests that the plain view doctrine is inapplicable
because Zeolla walked from the entryway to the living room to retrieve the handgun. Defendant
relies on Zeolla’s trial testimony indicating that a wall separated the entryway from the living
room and that the living room cannot immediately be seen upon entering the house. As
discussed, review of this issue is based on the testimony presented at the suppression hearing and
cannot be amplified by trial testimony. See Kaigler, 368 Mich. at 288. The exact location where
Zeolla was standing before he approached the living room couch is not clear, but Zeolla’s
testimony at the suppression hearing indicated that the entryway area took up only a few feet and
that the living room was to the immediate right of the entryway. Zeolla did not recall any door
separating the living room from the entryway. Given the small area in which these events
transpired, we are not convinced that the plain view doctrine is inapplicable.
But even if the firearm was not in plain view, Zeolla’s entry into the living room to seize
the weapon was justified by exigent circumstances. The fact that a gun used by a fleeing suspect
is missing may constitute exigent circumstances justifying a warrantless search. See People v
Esters, 417 Mich. 34, 51; 331 NW2d 211 (1982) (opinion by COLEMAN, J.) (concluding that a
“missing gun and missing accomplice provided exigent circumstances.”); id. at 60 (opinion by
LEVIN, J.) (agreeing with the lead opinion “that the missing gun and missing accomplice were in
the instant case exigent circumstances justifying the warrantless search.”). Here, Zeolla saw
defendant retrieve the gun from his right waistband area before entering the house and then saw
through the picture window that defendant bent down near the living room couch. No weapon
was found on defendant’s person when a pat-down search of defendant was conducted in the
entryway. The officers thus had reason to be concerned that other persons in the house could
have gained access to the firearm that defendant had brought into the house, which would create
a risk of danger to the police or others inside the dwelling. And given that defendant had entered
the house before the officers and that the firearm constituted incriminating evidence, it was
reasonable for the officers to ensure that the firearm had not been secreted or moved by
defendant or someone else in the house before the officers arrived. Accordingly, the officers’
actions in entering the house and seizing the firearm were justified by exigent circumstances.
Next, in his Standard 4 brief, defendant argues that he was denied a fair and impartial
trial on the basis of prosecutorial misconduct. We disagree.
To preserve a claim of prosecutorial misconduct, a defendant must make a
contemporaneous objection and request a curative instruction in the trial court. People v Bennett,
290 Mich. App. 465, 475; 802 NW2d 627 (2010). Defendant did not contemporaneously object
or request a curative instruction below with respect to the alleged acts of prosecutorial
misconduct that he asserts on appeal. Therefore, the issue is unpreserved.
This Court has explained the standard of review for this issue as follows:
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Issues of prosecutorial misconduct are reviewed de novo to determine
whether the defendant was denied a fair and impartial trial. Further, allegations of
prosecutorial misconduct are considered on a case-by-case basis, and the
reviewing court must consider the prosecutor’s remarks in context.
Unpreserved issues are reviewed for plain error affecting substantial
rights. 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. Further, this Court cannot find error
requiring reversal where a curative instruction could have alleviated any
prejudicial effect. [Bennett, 290 Mich. App. at 475-476 (quotation marks, brackets,
and citations omitted).]
Defendant makes numerous assertions of prosecutorial misconduct. First, defendant
contends that the prosecutor made improper remarks in closing argument challenging the
credibility or believability of the only defense witness, Loretta Smith, who was defendant’s
girlfriend and who testified that she had bought the gun found in the house. The prosecutor
noted Smith’s testimony that “she bought the firearm off of some person on the street; that she
doesn’t know much about firearms, but she bought it, didn’t know if it was loaded, and she put it
under a couch cushion in the same house where her two children are.” The prosecutor then
stated, “If you believe that, there’s nothing I can do for you.” The prosecutor discussed Smith’s
inability to recall certain details about the gun. The prosecutor stated, “Is that a person on the
stand recalling from memory, or was that somebody sitting on the stand, trying to make up
anything she could to save the person that she cares about? I commend her, but I submit to you
that you should not believe a word that she says.” Later, the prosecutor characterized Smith’s
testimony as “really far-fetched[,]” again noting that Smith claimed to have bought the gun
“despite clearly knowing nothing about it, [and] claiming to put it under her couch cushion with
children in the house[.]” Still later, the prosecutor said, “So, once again, I think you have no
reason, at all, to believe a word that Ms. Smith said. It just was a lie that wasn’t thought through
ahead of time. And I think that was made very clear.” During rebuttal closing argument, the
prosecutor again discussed Smith’s testimony about buying the gun, and stated, “Ladies and
gentlemen, that’s a lie. And you know it. You’re smart people. You have reason and you have
common sense. And I trust that you brought it with you.”
“A prosecutor is afforded great latitude regarding his or her arguments and conduct at
trial.” People v Fyda, 288 Mich. App. 446, 461; 793 NW2d 712 (2010). A prosecutor is “free to
argue the evidence and all reasonable inferences from the evidence as they relate to [the
prosecutor’s] theory of the case.” People v Seals, 285 Mich. App. 1, 22; 776 NW2d 314 (2009)
(citation omitted). The prosecutor may argue from the facts that defense witnesses are not
worthy of belief. People v Dobek, 274 Mich. App. 58, 67; 732 NW2d 546 (2007). The prosecutor
“need not confine argument to the blandest possible terms.” Id. at 66. Here, the prosecutor’s
arguments challenging the believability of Smith’s testimony were not improper. The prosecutor
argued from the facts that Smith’s testimony was implausible. The prosecutor highlighted the
fact that Smith claimed to have bought the gun and stuck it under her couch cushion even though
Smith had children in her house. The prosecutor’s suggestion that Smith’s testimony should not
be believed comprised a permissible argument.
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But even if defendant could establish that the prosecutor’s argument on this point was
somehow improper, defendant fails to establish that any prejudice could not have been alleviated
by a curative instruction. “Curative instructions are sufficient to cure the prejudicial effect of
most inappropriate prosecutorial statements.” Seals, 285 Mich. App. at 22 (citation omitted).
Also, the trial court instructed the jury to decide the case only on the basis of the properly
admitted evidence and that the attorneys’ arguments and statements did not constitute evidence.
“This instruction was sufficient to eliminate any prejudice that might have resulted from the
prosecutor’s remarks.” People v Thomas, 260 Mich. App. 450, 454; 678 NW2d 631 (2004)
(citations omitted); see also People v Abraham, 256 Mich. App. 265, 279; 662 NW2d 836 (2003)
(“Jurors are presumed to follow their instructions, and instructions are presumed to cure most
errors.”).
Defendant next challenges the following statement by the prosecutor in rebuttal closing
argument regarding Harnphanich’s response to a question by defense counsel: “And when
Officer Harnphanich had trouble understanding her questions, he said: ‘I’m trying to understand
what you’re asking me.’ That’s somebody who’s telling the truth.” This argument was in
response to defense counsel’s arguments that extensively challenged the credibility of
Harnphanich, and particularly in response to the following argument by defense counsel:
And then Officer Harnphanich, remember I was asking him questions?
You all saw that. And you can test credibility by his body language, and how
long – his long pauses, and: “I’m trying to think how to answer your question.”
No, no, no. You’re tryin’ to think, because that didn’t happen, because
you’re trying to make something to fill in the gaps.
A prosecutor’s remarks must be evaluated in context and in light of defense counsel’s arguments.
Thomas, 260 Mich. App. at 454. “[A] prosecutor may not vouch for the credibility of his
witnesses by implying that he has some special knowledge of their truthfulness. But a prosecutor
may comment on his own witnesses’ credibility during closing argument, especially when there
is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the
jury believes.” Id. at 455 (citation omitted). Here, after defense counsel challenged
Harnphanich’s credibility during closing argument, the prosecutor offered a responsive argument
suggesting that Harnphanich was credible and that he was merely attempting to understand
defense counsel’s question. The prosecutor did not vouch for Harnphanich’s credibility by
suggesting some special knowledge concerning his truthfulness. The prosecutor merely argued
from Harnphanich’s trial testimony that he was credible, and this argument was in response to
defense counsel’s argument. Hence, the prosecutor’s argument on this point was not improper.
Further, any prejudicial effect of the prosecutor’s argument “could have been alleviated by a
curative instruction given on a timely objection[,]” id., and the trial court’s instructions to decide
the case only on the basis of the properly admitted evidence and that the attorney’s arguments
and statements did not constitute evidence sufficed to eliminate any prejudice. Id. at 454.
Next, defendant contends that the prosecutor made a material misstatement in closing
argument when he stated that Smith did not know what color the gun was or if it was big or
small. In fact, defendant argues, Smith testified that the gun was black and that it was a
relatively big pistol. “Although a prosecutor may not argue facts not in evidence or
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mischaracterize the evidence presented, the prosecutor may argue reasonable inferences from the
evidence.” People v Watson, 245 Mich. App. 572, 588; 629 NW2d 411 (2001). In closing
argument, the prosecutor stated:
[Smith] wasn’t able to tell you – she was able to say: “The gun might be black.”
Didn’t know if it was a revolver or automatic, didn’t know if it had any bullets in
it, didn’t know if it was small or if it was big.
Smith testified about the gun as follows during the prosecutor’s cross-examination:
Q. What kind of gun is it?
A. I don’t know.
Q. You don’t know.
A. No.
Q. Is it a pistol or a rifle?
A. It wasn’t a rifle, ‘cuz a rifle is way bigger than a pistol. So, what kinda’
gun did I purchase? I don’t know. All I asked for is, hey, a handgun.
Q. Do you recall what color it was?
A. It may be black. I’m not for sure.
Q. Are you sure it was black?
A. I said it may be.
Q. May be. Okay. Do you recall what the handle looked like?
A. Not right off-hand I can’t.
Q. Now, okay. Does the gun fit in your pocket?
A. No, I don’t think so. It wasn’t small enough, like a two, two.
Q. So, it wasn’t super small.
A. No, it was not.
Q. A bigger pistol.
A. Yeah.
Later, the following exchange occurred during the prosecutor’s cross-examination of Smith:
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Q. You bought a gun. You’re not sure what it looks like, or how big it
was, or if it had bullets in it, or what kind of bullets it would take, and you stuck it
under the couch, in a house with two children in it?
THE COURT: Is that your testimony?
THE WITNESS: Yes, I bought a gun.
CROSS-EXAMINATION (CONTINUED)
BY MR. KONING [the prosecutor]:
Q. Do I have that right?
A. Yes.
Contrary to defendant’s argument, the prosecutor did not mischaracterize Smith’s testimony.
The prosecutor correctly noted that Smith testified that the pistol might have been black.
Regarding the size of the gun, the prosecutor stated that Smith did not know if the gun was small
or big. Although Smith at one point indicated that the gun would not fit into her pocket, that it
was not “super small[,]” and that it was “[a] bigger pistol[,]” she later expressed agreement with
the prosecutor that Smith did not know how big the pistol was. The prosecutor’s argument thus
contained a reasonable inference from the evidence. In any event, any minimal prejudice was
alleviated by the trial court’s instructions to decide the case only on the basis of the properly
admitted evidence and that the attorneys’ arguments and statements did not constitute evidence.
See Thomas, 260 Mich. App. at 454.
Defendant next takes issue with the prosecutor’s suggestion in rebuttal closing argument
that the jury could infer consciousness of guilt from defendant’s flight. The prosecutor stated:
And the Judge is going to give you an instruction that when some – on
flight – that when somebody runs, you can, you, as the deciders of what is and
what isn’t fact, you can determine that that’s evidence of knowledge that they’re
guilty of something.
Defendant asserts that this argument comprises a material misstatement and that “these are facts
not stated in evidence.” Defendant has abandoned this contention because he does not explain
how the prosecutor’s argument constitutes a material misstatement or how it asserts facts not in
evidence. See People v Matuszak, 263 Mich. App. 42, 59; 687 NW2d 342 (2004) (“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. Such cursory treatment constitutes abandonment of the issue.”)
(quotation marks, brackets, and citations omitted). If defendant is suggesting that there is no
evidence that he fled from the police, his argument lacks merit because there was indeed ample
testimony that he fled from the police.
Defendant next argues that the prosecutor erred in reading from statutes during closing
argument. Defendant claims that this impaired the trial court’s function of instructing the jury.
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Defendant fails to provide any record citation in support of this assertion; that is, he does not cite
any portion of the trial transcript in which the prosecutor read from statutes during closing
argument. Nor does defendant present a meaningful appellate argument regarding this assertion.
This aspect of the issue has thus been abandoned. See People v Bosca, 310 Mich. App. 1, 48; 871
NW2d 307 (2015), app held in abeyance 872 NW2d 492 (Mich, 2015) (“Because defendant has
failed to sufficiently develop this argument or to provide any record citation in support of his
claim, we find that the issue has been abandoned on appeal.”). In reviewing the record, we find
no indication that the prosecutor read statutes to the jury, let alone that he inaccurately read any
statutes to the jury. Presumably defendant may be referring to the fact that the prosecutor listed
and discussed the elements of the charged offenses during closing argument, but defendant fails
to identify any error by the prosecutor in doing so.
Defendant next contends that the prosecutor misstated the law in closing argument when
explaining the concept of possession to the jury. Defendant purports to quote from the transcript,
but his quotation is inaccurate. In particular, defendant’s quotation suggests that the prosecutor
stated that defendant could have jointly possessed the gun even if he did not know the gun was in
the house, and that defendant being in the house was all that it took to prove that he was a felon
in possession of a gun. We find no such statements by the prosecutor in the trial transcript.
Defendant asserts without elaboration that the prosecutor made misstatements in defining the
concept of possession, but it appears defendant’s cursory argument is premised on his inaccurate
quotation of the trial transcript. Defendant’s argument has thus been abandoned as inadequately
briefed. See Bosca, 310 Mich. App. at 48. Further, the trial court instructed the jury on the
meaning of possession, and defendant does not contend that the trial court erred in its instruction
on possession. The trial court also instructed the jury: “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.” Again, jurors are presumed to follow their instructions, and the trial court’s
instructions therefore sufficed to cure any inadequacy in the prosecutor’s explanation of the
concept of possession. See People v Unger, 278 Mich. App. 210, 235; 749 NW2d 272 (2008).
Next, defendant contends that the prosecutor improperly discredited the defense theory
during the prosecutor’s rebuttal closing argument. Defendant challenges the prosecutor’s
statement that defense counsel was “grabbing at straws for anything to try and find a reasonable
doubt where there just isn’t, because it’s just really straightforward.” The prosecutor’s comment
was not improper. Again, a prosecutor “need not confine argument to the blandest possible
terms.” Dobek, 274 Mich. App. at 66. A prosecutor’s remarks must be evaluated in context and
in light of defense counsel’s arguments. Thomas, 260 Mich. App. at 454. During closing
argument, defense counsel challenged the credibility of the officers in connection with their
purported lack of consistency in estimating the size of the front window of Smith’s house and in
referring to the front window as a “large picture window.” During rebuttal argument, the
prosecutor stated that defense counsel was focusing on questions that did not matter such as
whether the front window was called a picture window or merely a front window. The
prosecutor then made the comment suggesting that the defense was “grabbing at straws” to “find
a reasonable doubt[.]” Viewed in context, the prosecutor’s comment was a permissible response
to defense counsel’s argument.
Defendant also challenges the prosecutor’s statement that defense counsel was “trying to
get at your heart and make you feel you’re doing the right thing by giving a verdict of not
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guilty[]” and that the jurors had instead “swore an oath to take your heart out of it, and you use
your mind, and let your mind look at what you saw and what you heard, and judge what’s a fact,
and determine if those facts match the elements of the crimes.” The prosecutor’s comment that
defense counsel was attempting to get at the jurors’ hearts and that the jurors were instead
required to use their minds was a way of telling the jurors to determine the facts and then
determine whether those facts satisfied the elements of the charged offenses. This appears to
have been an effort to remind the jurors of their responsibility to decide the case on the basis of
the facts, given that defense counsel’s closing argument injected emotional appeals, including
gratuitous references to defendant’s age, race, and gender, as well as to the “national culture” of
“[p]olice misconduct[,]” in lieu of confining her remarks to the facts of the case.1 Viewed in
context, the prosecutor’s remarks were not improper.
Defendant contends that the cumulative effect of the alleged instances of prosecutorial
misconduct caused sufficient prejudice to warrant reversal of his convictions. “The cumulative
effect of several errors can constitute sufficient prejudice to warrant reversal even when any one
of the errors alone would not merit reversal, but the cumulative effect of the errors must
undermine the confidence in the reliability of the verdict before a new trial is granted.” Dobek,
1
For example, in her closing argument, defense counsel stated:
And maybe [the police officers] prejudge [defendant], right? A middle-aged
black man walkin’ down the street? Do you think if I was walkin’ down the
street, they’d stop me? Do you think they’d stop and mess with me? No, they’re
gonna’ stop and mess with the middle-aged black man, walkin’ down the street, at
night, in Detroit. And they mess with him.
* * *
And after [the police] find that gun, they decide, at that moment, who are they
gonna’ charge, the middle-age black man that you’ve all heard is a felon, or are
they gonna’ charge her? No, it’s gonna’ hurt him more. They’re gonna’ charge
him.
* * *
Now, why would [the police] mess – why would they mess with
[defendant]? Well, first of all, national culture, right? Police misconduct is being
exposed. That – that, we know.
MR. KONING [the prosecutor]: Judge, there’s nothing about that in
evidence.
THE COURT: Counsel, that’s – all right. That’s –
MS. ROLPH [defense counsel]: (Interposing) Movin’ on.
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274 Mich. App. at 106. As discussed, defendant has failed to establish that the prosecutor
committed misconduct in this case. “Absent the establishment of errors, there can be no
cumulative effect of errors meriting reversal.” Id.
Next, defendant argues in his principal appellate brief and in his Standard 4 brief that he
was denied the effective assistance of counsel. We disagree.
“[A] defendant must move in the trial court for a new trial or an evidentiary hearing to
preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). Defendant filed in the trial court a motion for a new trial or
an evidentiary hearing, arguing that defense counsel was ineffective for failing to present
evidence that defendant resided at the house located at 15444 Murray Hill and had an
expectation of privacy in that house. Defendant’s ineffective assistance of counsel argument is
therefore preserved with respect to this aspect of the issue. But defendant did not include in his
motion for new trial the argument that defense counsel was ineffective for failing to object to the
purported instances of prosecutorial misconduct during closing argument. That aspect of
defendant’s ineffective assistance of counsel argument is therefore unpreserved.
Whether a defendant was deprived of the effective assistance of counsel presents a mixed
question of fact and constitutional law. Id. at 80. Any findings of fact are reviewed for clear
error, while the legal questions are reviewed de novo. Id. Because defendant did not move in
the trial court for a new trial or an evidentiary hearing on the basis that defense counsel was
ineffective for failing to object to the alleged instances of prosecutorial misconduct during
closing argument, this Court’s review of that aspect of the issue is limited to mistakes that are
apparent from the record. Id.
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” People v Ackerman, 257 Mich. App. 434, 455; 669 NW2d 818 (2003).
Defense counsel is presumed effective. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288
(2012). “Defendant must overcome a strong presumption that counsel’s performance constituted
sound trial strategy.” People v Petri, 279 Mich. App. 407, 411; 760 NW2d 882 (2008). “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 Russell, 297 Mich. App. 707, 716; 825
NW2d 623 (2012). A defendant claiming ineffective assistance “has the burden of establishing
the factual predicate for the claim.” People v Carbin, 463 Mich. 590, 600; 623 NW2d 884
(2001).
In both his principal appellate brief and his Standard 4 brief, defendant contends that
defense counsel was ineffective for failing to present evidence at the suppression hearing
supporting the proposition that he resided at the house located at 15444 Murray Hill and that he
thus had an expectation of privacy in that house and standing to contest the warrantless entry into
the home. As discussed earlier, however, the trial court properly ruled that the warrantless entry
into the home was justified by exigent circumstances. The presentation of evidence that
defendant purportedly resided at the house therefore would not have made a difference in the
outcome of the suppression hearing. Defense counsel was not ineffective for failing to advance a
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futile argument. People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010). Defendant
has not established a reasonable likelihood of a different outcome but for defense counsel’s
alleged error. Regardless of whether defense counsel had presented evidence at the suppression
hearing that defendant resided in the home, the suppression motion would have been denied
because exigent circumstances justified the warrantless entry into the home.
Defendant’s Standard 4 brief also asserts that defense counsel failed to present any case
law in support of the suppression motion. In fact, defense counsel’s suppression motion and
supporting memorandum cited case law. Defendant has thus failed to establish the factual
predicate for this part of his claim. Carbin, 463 Mich. at 600.
In his Standard 4 brief, defendant contends that defense counsel was ineffective for
failing to object to the alleged instances of prosecutorial misconduct during closing argument.
As discussed earlier, however, the prosecutor did not engage in misconduct during closing
argument. Therefore, defense counsel was not ineffective for failing to make a meritless
argument or raise a futile objection. Ericksen, 288 Mich. App. at 201.
Finally, defendant argues in his Standard 4 brief that the prosecution failed to present
sufficient evidence to support defendant’s convictions of felony-firearm, felon in possession of a
firearm, and felon in possession of ammunition. We disagree.
To determine whether there was sufficient evidence to support a conviction, this Court
reviews the evidence de novo, in the light most favorable to the prosecutor, to determine whether
a rational trier of fact could have concluded that the essential elements of the offense were
proven beyond a reasonable doubt. People v Odom, 276 Mich. App. 407, 418; 740 NW2d 557
(2007). “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 Kanaan, 278 Mich. App. 594, 619; 751
NW2d 57 (2008). “All conflicts in the evidence must be resolved in favor of the prosecution.”
Id. “Circumstantial evidence and reasonable inferences arising therefrom may constitute proof
of the elements of the crime.” Bennett, 290 Mich. App. at 472.
The elements of felon in possession of a firearm are that “(1) the defendant is a felon who
possessed a firearm (2) before his right to do so was formally restored under MCL 28.424.”
People v Bass, 317 Mich. App. 241, 268; 893 NW2d 140 (2016). The elements of felon in
possession of ammunition are identical to the elements of felon in possession of a firearm, except
that the defendant must have possessed ammunition rather than a firearm. See MCL 750.224f.
“The elements of felony-firearm are that the defendant possessed a firearm during the
commission of, or the attempt to commit, a felony.” Bass, 317 Mich. App. at 268-269 (quotation
marks and citation omitted). Felon in possession of a firearm may serve as the predicate felony
for a felony-firearm conviction. See MCL 750.227b; People v Calloway, 469 Mich. 448, 452;
671 NW2d 733 (2003).
The parties stipulated that defendant had previously been convicted of a felony and that
he did not have a right to possess the firearm or the ammunition on the date of the offenses in
this case because the requirements for regaining eligibility to possess a firearm or ammunition
had not been satisfied. Police officers testified that they observed defendant remove a handgun
from underneath his jacket or sweatshirt as he entered the house located at 15444 Murray Hill.
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After defendant entered the house, the officers saw through a front window that defendant bent
down in an area of the house to the right side of the front door. After entering the house and
detaining defendant, the police recovered a handgun that was protruding from underneath a
cushion of a couch located in the area where the police had seen defendant bending down. The
gun appeared similar in size and color to the gun that defendant had pulled from his waist when
entering the house. The gun was a .32 caliber blue steel revolver with two live rounds in it.
Given the above evidence and the parties’ stipulations, a rational trier of fact could have found
that defendant was a felon who possessed a firearm and ammunition before his right to do so was
formally restored. There was therefore sufficient evidence to support his convictions for felon in
possession of a firearm and felon in possession of ammunition. The evidence also supports a
conclusion that defendant possessed a firearm while committing the felony of felon in possession
of a firearm. There was thus sufficient evidence to support his felony-firearm conviction.
Defendant makes a cursory assertion that the officers’ testimony that they saw defendant
remove the handgun before entering the house may not be considered because defendant was
acquitted of the charged offense of carrying a concealed weapon, MCL 750.227. Defendant does
not cite any authority in support of this assertion or elaborate on why he thinks his acquittal of
one offense precludes considering the officers’ testimony when determining whether there was
sufficient evidence to support his convictions for other offenses. Defendant has thus abandoned
this argument. See Matuszak, 263 Mich. App. at 59 (“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. Such
cursory treatment constitutes abandonment of the issue.”) (quotation marks, brackets, and
citations omitted).
Defendant also notes that the officers did not see the gun or defendant’s arms or hands
when they saw him through the front window bending down, that fingerprint testing of the gun
was inconclusive, that Smith claimed the gun belonged to her, and that the gun was not
recovered from defendant’s person. None of these facts alters the conclusion that there was
sufficient evidence to support defendant’s convictions. The officers saw defendant remove a gun
from underneath his jacket or sweatshirt as he entered the house; the fact that the gun and
defendant’s arms and hands were not visible through the front window when he leaned down
does not alter the fact that the officers saw defendant holding the gun as he was entering the
house. Moreover, the evidence supports a reasonable inference that defendant possessed the gun
inside the house because the gun was found protruding from under a couch cushion in the area
where defendant had been seen bending down. The inconclusive fingerprint testing likewise
does not change the fact that the officers testified that they saw defendant holding the gun.
Eyewitness testimony is sufficient evidence to support a conviction; corroborating physical
evidence is not required. See People v Newby, 66 Mich. App. 400, 405; 239 NW2d 387 (1976).
Smith’s testimony that the gun belonged to her again does not alter the fact that the officers
testified to their observations of defendant holding the gun. “This Court will not interfere with
the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.”
Kanaan, 278 Mich. App. at 619. “All conflicts in the evidence must be resolved in favor of the
prosecution.” Id. The fact that the gun was not recovered from defendant’s person is explained
by the fact that defendant entered the house before the officers and was seen through the front
window leaning down in the area of the couch from which the gun was later recovered.
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Affirmed.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Michael J. Riordan
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