People of Michigan v. Dequaries Devonte Jackson ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 6, 2019
Plaintiff-Appellee,
v No. 343198
Ingham Circuit Court
DEQUARIES DEVONTE JACKSON, LC No. 17-000395-FC
Defendant-Appellant.
Before: SWARTZLE, P.J., and M. J. KELLY and TUKEL, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317,
felon in possession of a firearm, MCL 750.224, and possession of a firearm during the
commission of a felony, MCL 750.227b (felony-firearm). The trial court sentenced defendant to
concurrent prison terms of 300 to 600 months for the second-degree murder conviction and 30 to
60 months for the felon-in-possession conviction, and to serve a consecutive two-year term for
the felony-firearm conviction. Defendant appeals as of right, and we affirm.
On April 1, 2017, defendant fatally shot Westly Cheeks in the face at close range.
Cheeks was visiting his girlfriend, Allison Browne, at the home of Jacqueline Boose, which was
in Lansing. Defendant arrived, and defendant and Cheeks, who were apparently members of the
same gang, then argued in the kitchen for an extended period of time, apparently about a debt of
$50, a sale of drugs, or a combination of the two. Browne and Boose then heard a gunshot.
Defendant fled and was picked up by his girlfriend, Angel Jackson. Defendant and Jackson were
found and arrested in a home in the downriver section of metro Detroit on April 4.
I. GANG INVOLVEMENT
Defendant first argues that the trial court erred in admitting evidence that defendant was
in a gang. We disagree. Whether other-acts evidence was properly admitted is reviewed for an
abuse of discretion. People v McGhee, 268 Mich. App. 600, 636; 709 NW2d 595(2005). The
trial court does not abuse its discretion when it chooses an outcome that falls within the range of
reasonable and principled outcomes. People v Babcock, 469 Mich. 247, 269; 666 NW2d 231
(2003). Moreover, an evidentiary error does not merit reversal in a criminal case unless, after
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review of the entire cause, it appears that it is “more probable than not that the error was
outcome determinative.” People v Lukity, 460 Mich. 484, 495-496; 596 NW2d 607 (1999).
The trial court granted the prosecutor’s motion to admit evidence that defendant and
Cheeks were in the same gang. At a pretrial hearing, the prosecutor argued that defendant’s
confrontation with Cheeks was motivated by a dispute that arose because Cheeks wanted to leave
the gang. The trial court agreed that the dispute was evidence of defendant’s motive but
excluded evidence of any other gang-related activity, including violence. At trial, the prosecutor
asserted in the opening statement that defendant and Cheeks were quarrelling because Cheeks
owed defendant money and because Cheeks wished to leave their gang. Browne testified that
Cheeks and defendant were members of the same gang and claimed that defendant had
threatened Cheeks in social media messages in the month before Cheeks was killed; the
messages reinforced to Cheeks that defendant was the leader of their gang. Detective Andrew
Hogan testified that defendant and Cheeks were in a gang called the Four Corner Hustlers, which
was associated with the Vice Lords from Chicago. The prosecutor argued in closing argument
that defendant killed Cheeks because he wanted to leave the gang and because he owed
defendant money. The only testimony admitted that defendant was in a gang were the statements
of Browne and Hogan.
Evidence of prior acts or crimes by a defendant must be excluded, except as allowed by
MRE 404(b), to avoid the danger of a conviction based on a defendant’s history of misconduct
rather than upon the evidence of his conduct in the case in issue. People v Starr, 457 Mich. 490,
495; 577 NW2d 673 (1998). MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
Generally, to be admissible under MRE 404(b), other-acts evidence (1) must be offered for a
proper purpose, (2) must be relevant, and (3) must not have a probative value substantially
outweighed by its potential for unfair prejudice. People v Knox, 469 Mich. 502, 509; 674 NW2d
366 (2004), citing People v VanderVliet, 444 Mich. 52, 74-75; 508 NW2d 114 (1993). A purpose
is proper where evidence is offered to prove a fact other than a defendant’s character and his
propensity to commit crimes. People v Johnigan, 265 Mich. App. 463, 465; 696 NW2d 725
(2005).
Here, regarding the first requirement, defendant argues that the evidence was admitted to
demonstrate that he was associated with violence, an inference that the jury would draw from
gang membership. However, that was not the purpose for the admission of the evidence.
Instead, the evidence of defendant’s gang affiliation was admitted to show his motive and was
not used to show his propensity to act as a gang member. Therefore, the evidence was admitted
for a proper purpose.
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In order to be admissible under MRE 404(b), the evidence also must be relevant.
Evidence is relevant if it has “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; People v Sabin (After Remand), 463 Mich. 43, 56-57; 614
NW2d 888 (2000). “Under this broad definition,” evidence that is useful in shedding light on
any material point is admissible. People v Aldrich, 246 Mich. App. 101, 114; 631 NW2d 67
(2001). Here, the evidence was relevant to demonstrate the context of defendant’s confrontation
with Cheeks—that they were experiencing a conflict related to their common gang membership.
Thus, the evidence was relevant.
Regarding the third requirement, defendant contends that the evidence should have been
excluded because its minimal probative value was substantially outweighed by its prejudice.
Relevant evidence may be excluded under MRE 403 if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” People v Watkins, 491 Mich. 450, 477, 481; 818 NW2d 296 (2012). Unfair prejudice
occurs when there is a tendency for the evidence “to be given undue or preemptive weight” by
the jury, or when it “would be inequitable to allow use” of the evidence. People v Wilson, 252
Mich. App. 390, 398; 652 NW2d 488 (2002), citing People v Mills, 450 Mich. 61, 75-76; 537
NW2d 909 (1995), mod on other grounds 450 Mich. 1212 (1995). “ ‘Unfair prejudice’ does not
mean ‘damaging.’ ” Lewis v Legrow, 258 Mich. App. 175, 199; 670 NW2d 675 (2003). To
constitute “unfair prejudice,” evidence must go beyond the merits of the case to inject issues
broader than the defendant’s guilt or innocence, such as “bias, sympathy, anger, or shock.”
McGhee, 268 Mich. App. at 614.
Defendant argues that the evidence was unfairly prejudicial because gang affiliation is
associated with a propensity for violence, and the jury could have been so influenced. However,
defendant had threatened Cheeks in a message which also discussed gang hierarchy. Thus,
Browne’s testimony that defendant and Cheeks were in the same gang in which animosity
existed was substantive evidence of defendant’s motive to confront Cheeks. Moreover, because
the evidence of gang affiliation was intertwined, through the text message, with threats, it was
not introduced solely to show criminal disposition. See United States v Morgan, 117 F3d 849,
861 (CA 5, 1997) (“Evidence of criminal activity other than the charged offense is not
considered extrinsic within the proscription of Rule 404(b) of the Federal Rules of Evidence if it
is an uncharged offense which arose out of the same transaction or series of transactions as the
charged offense.”); United States v Reynolds, 762 F2d 489, 494 (CA 6, 1985) (“The references to
possible future criminal activity were intertwined with and part of the evidence of motive,
scheme, and intent. This evidence was not introduced solely to show criminal disposition.”).1
1
The opinions of lower federal courts are not binding on this Court, but such opinions may be
considered for their persuasive value. See Abela v Gen Motors Corp, 469 Mich. 603, 606-607;
677 NW2d 325 (2004). Reliance on federal authority is particularly appropriate here, as the text
of FRE 403 and MRE 403 are identical.
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Though the evidence may have been somewhat prejudicial to defendant because it
revealed conflict between Cheeks and defendant in their gang environment, we cannot say that it
was unfairly prejudicial. Only two witnesses testified that defendant was in a gang, and the trial
court barred any evidence of violence or drug dealing regarding the gang. The prosecutor did
not argue that defendant had a propensity for violence or that gang affiliation was anything more
than a source of defendant’s conflict with Cheeks. Thus, the probative value of the evidence was
not substantially outweighed by the danger of unfair prejudice because the jury was not likely to
give the statement that defendant was in a gang with Cheeks undue weight.
Defendant suggests that the performance of his trial attorney was deficient in failing to
object to evidence that defendant was in a gang. However, this claim has no merit, as
defendant’s trial attorney opposed the admission of the evidence in a pretrial motion. Moreover,
because the admission of the evidence was proper, any further objection would have been futile,
and counsel does not render ineffective assistance by failing to raise a futile objection. People v
Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
II. PROSECUTORIAL ERROR
Defendant next argues that he was denied a fair trial by the conduct of the prosecutor.
“Unpreserved claims of prosecutorial misconduct are reviewed for plain error affecting
substantial rights.” People v Norfleet, 317 Mich. App. 649, 660 n 5; 897 NW2d 195 (2016).
“Reversal is warranted only when plain error resulted in the conviction of an actually innocent
person, or seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
Unger, 278 Mich. App. at 235.
The prosecutor has a duty to ensure that the defendant receives a fair trial. People v
Farrar, 36 Mich. App. 294, 299; 193 NW2d 363 (1971). The responsibility of a prosecutor is “to
seek justice and not merely convict.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546
(2007). “[T]he test of prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” Id.2 A fair trial for a defendant “can be jeopardized when the prosecutor
interjects issues broader than the defendant’s guilt or innocence.” Id. at 63-64.
A. ASKING LEADING QUESTIONS
Defendant argues that the prosecutor consistently asked leading questions. “Leading
questions should not be used on the direct examination of a witness except as may be necessary
to develop the witness’ testimony.” MRE 611(d)(1). A leading question is a question that
“contain[s] its own presumptive answer.” People v Snyder, 462 Mich. 38, 43; 609 NW2d 831
(2000). Leading questions can be problematic “because they are considered confusing and
2
The phrase “prosecutorial misconduct” is a term of art “used to describe any error committed
by the prosecution, even though claims of inadvertent error by the prosecution are ‘better and
more fairly presented as claims of ‘prosecutorial error,’ with only the most extreme cases
constituting ‘prosecutorial misconduct.’ ” People v Cooper, 309 Mich. App. 74, 87-88; 867
NW2d 452 (2015).
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suggestive.” People v Adkins, 452 Mich. 702, 731; 551 NW2d 108 (1996). However, defendant
cites no authority to support the proposition that the mere use of leading questions by a
prosecutor constitutes conduct that requires reversal.
Defendant claims that there were several instances in which the prosecutor asked leading
questions to witnesses Browne, Marquis Hightower, and Officer Westly Vaughn. However, we
note that while defendant in his brief on appeal has provided citations to the pages in which the
offending questions can ostensibly be found, defendant has failed to quote or otherwise provide
the actual questions. In some instances, it is difficult to ascertain, after reviewing the cited page,
which question defendant is challenging. A party may not leave it to this Court to search for the
factual basis in support of his argument, and any such argument is deemed abandoned. People v
Traylor, 245 Mich. App. 460, 464; 628 NW2d 120 (2001).
Defendant first claims that the prosecutor suggested in a question to Browne that she
returned to Boose’s home after midnight. However, this claim is without merit, as Browne
previously testified that she returned “after midnight or around midnight. I think it may have
been even a little after that.” Defendant next asserts that the prosecutor suggested that defendant
was wearing a hoodie. The question was, “Do you remember if it was a hoodie or not a hoodie?”
This question is not a leading question; there were only two possible answers, yes or no, and the
question presented only equanimity between the two, not suggesting that either answer was the
correct one. Next, defendant asserts that the prosecutor suggested to Browne that defendant “did
not leave after the argument right away.” Defendant does not quote the question he takes issue
with, and we do not see any question that directly relates to this. The closest we found was when
the prosecutor asked Brown whether it was “[f]air to say that [defendant] could have left if he
wanted to,” “but he did not do that, did he?” Arguably, this was leading because the question
suggested that defendant did not leave the home during his argument with Cheeks. However,
this testimony was of no significance, as there was no evidence or suggestion that defendant was
ever not free to leave or that his freedom was somehow constrained. Thus, the answer to the
question could not have been prejudicial to defendant, as it added nothing material. Finally, the
prosecutor asked Browne, “One of the first things you said to the detective or to law enforcement
is that they’ll kill you and Jacki. What things have you done recently to protect yourself?” She
responded that she had bought a new house and moved. This question did not suggest an answer
and was in reference to why she did not want the officer to record her first statement.
Defendant also takes issue with how the prosecutor conducted his examination of
Hightower. The prosecutor asked Hightower, who gave defendant and his girlfriend a ride to his
apartment following the murder, “[D]id you go pick [defendant] up that Saturday morning
around 11:00 a.m.?” The question may technically suggest an answer, and up to this point, there
had been no evidence establishing the timeline. But the time Hightower picked up defendant
was not that important because Hightower went on to testify about how he transported defendant
to a parking lot where defendant was picked up by another person. The prosecutor also asked
Hightower, “Did [defendant] tell you that he needed to get out of town?” This type of question,
however, does not suggest the answer. Defendant also claims that the prosecutor told the witness
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there was no question about the witness’s knowledge. Presumably,3 defendant is referring to the
prosecutor asking, “[B]ut [there is] no question that you knew that there was a disagreement
between the two of them [defendant and Cheeks]?” But looking at the questioning preceding
this particular question shows that Hightower had already discussed that he was fully aware that
defendant and Cheeks had been quarreling because defendant admitted to the witness that he had
been arguing with Cheeks. Further, Hightower had testified just before that he “knew they
[defendant and Cheeks] had problems” leading up to the argument on April 1. Defendant also
asserts that the prosecutor was leading Hightower to state that he had been “torn between two
stories.” The prosecutor did ask Hightower whether he was “torn between losing a friend and
testifying against a friend.” Arguably, this is leading the witness, but it served to show the
witness’s possible bias. Exploring such bias is an example of “develop[ing] the witness’
testimony,” MRE 611(d)(1), and thus is not improper.
Defendant also cursorily argues, “A hearsay objection gets sustained? No problem
because [the prosecutor] then led Officer Vaughn to get the answer he wanted.” But the only
hearsay objection leading up to the transcript page cited by defendant related to how other
officers had explained to Officer Vaughn that the area where defendant was found and arrested
was “a very high crime area.” The questions on the page defendant cites do not relate to the
crime rate of the area. Instead, the questions pertain to the events that happened inside the house
at the time defendant was arrested. Moreover, assuming there were leading questions regarding
the high crime rate of the area, to which defendant had fled, defendant fails to explain how this
inconsequential fact prejudiced him in any manner.
Thus, the prosecutor arguably did ask some leading questions. Others that may have
appeared leading, however, were instances where the prosecutor merely was developing prior
testimony and asking a question about it. Leading questions during a trial do not constitute error
requiring reversal unless prejudice or a “ ‘pattern[] of eliciting inadmissible testimony’ ” has
been demonstrated. People v Johnson, 315 Mich. App. 163, 199; 889 NW2d 513 (2016), quoting
People v Watson, 245 Mich. App. 572, 588; 629 NW2d 411(2001). Here, defendant has failed to
establish that the questioning prejudiced him or that the questioning created a pattern of eliciting
inadmissible testimony. As such, defendant has not shown that he was denied a fair trial by the
prosecutor’s questioning.
B. VOUCHING FOR WITNESSES
Defendant also argues that many of the prosecutor’s questions implied a personal
knowledge regarding the truthfulness of a witness’s testimony. Questions that ask a witness to
comment or provide an opinion on the credibility of a witness are improper because “matters of
credibility are to be determined by the trier of fact.” People v Buckey, 424 Mich. 1, 16-17; 378
NW2d 432 (1985) (quotation marks and citations omitted); see also People v Malone, 180 Mich
App 347, 361; 447 NW2d 157 (1989) (“The prosecutor’s question was inappropriate because it
3
Again, as with nearly all of his leading-question challenges, defendant fails to quote the actual
question with which he takes issue.
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improperly bolstered the credibility of a prosecution witness.”). Because credibility matters are
to be determined by the jury, it is generally improper for a witness to provide an opinion on the
credibility of another witness. People v Douglas, 496 Mich. 557, 583; 852 NW2d 587 (2014);
Dobek, 274 Mich. App. at 71.
The prosecutor asked Browne, “If Jacki Boose takes the stand tomorrow and testifies . . .
she didn’t know the defendant was in her home that night, is she going to be lying?” Browne
responded affirmatively. This question arguably did ask for Browne’s opinion of Boose’s future
testimony. However, the question was limited to one statement, rather than Boose’s general
credibility. Moreover, that Browne thought Boose would be lying was an obvious inference
from Browne’s testimony that Boose was there when defendant entered the home and that Boose
knew defendant. Ultimately, the jury had to decide whether Browne or Boose was telling the
truth in this regard, and Browne’s assertion that she was being truthful and that Boose was not
would not have lent much to the determination. Additionally, the jury could have convicted
defendant based on Hightower’s retelling of defendant’s admission that he shot Cheeks in the
face, regardless of Browne’s testimony.
Defendant argues similarly that the prosecutor vouched for Hightower when he asked and
Hightower affirmed that “[i]n exchange for [the benefits of the plea agreement], you [agreed that
you] would testify truthfully at his preliminary examination, which you did on May 11.” To
begin with, the question is ambiguous. It appears that the question asks whether Hightower
testified on May 11, not whether his testimony was truthful. But even if the question asked
about truthfulness, the plea agreement did call for truthful testimony, so this was an accurate
recap of the agreement.
Defendant also argues that the prosecutor should not have stated that a witness previously
had invoked her privilege against self-incrimination. However, the question was made in the
course of disclosing an agreement that might be viewed as affecting her credibility. If anything,
the fact that Boose had been granted immunity would inure to the benefit of defendant because it
could create a motive for Boose to testify against defendant, and thus provided ready grist for the
cross-examination of her.
Defendant argues that the prosecutor also impermissibly suggested during closing
argument that he had personal knowledge of the subject matter of witnesses’ testimony. A
prosecutor may not “vouch for the credibility of his witnesses to the effect that he has some
special knowledge concerning a witness’ truthfulness.” People v Bahoda, 448 Mich. 261, 276;
531 NW2d 659 (1995). Such commentary could influence the jury to decide the case based on
the prosecutor’s special knowledge and not on the evidence presented. People v Bennett, 290
Mich. App. 465, 476-477; 802 NW2d 627 (2010), citing Bahoda, 448 Mich. at 276. Further, the
prosecutor may not vouch for a witness’s credibility based on an assertion of the prosecutor’s
integrity or the prestige of the position. McGhee, 268 Mich. App. at 633. A prosecutor’s
statement about the credibility of a witness may infringe on the “exclusive province of the jury”
to determine credibility, particularly given the importance of the prosecutor’s position. People v
Erb, 48 Mich. App. 622, 631-632; 211 NW2d 51 (1973).
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The prosecutor, in closing, stated:
I am pretty confident [Boose] knows [that Wilbert] Edmond[4] saw the murder as
well, and she knows Wilbert Edmond fled the home with [defendant], too. And
we know Edmond was there. And how do we know that? Well, Allison Browne
told us he was there. She has no reason to lie about Wilbert Edmond being there.
Defendant states that “we” refers to the prosecutor having personal knowledge that Edmond was
at the scene of the crime. However, in this context the prosecutor simply appeared to be
summarizing the prosecution’s view of the evidence and referring to “we” as all of the trial
participants who had heard the evidence together during the trial. Prosecutorial comments must
be read as a whole and evaluated in context, including the arguments of the defense and the
relationship they bear to the evidence. People v Thomas, 260 Mich. App. 450, 454; 678 NW2d
631 (2004). Prosecutors have “great latitude regarding their arguments” in closing, and are
“generally free to argue the evidence and all reasonable inferences from the evidence as it relates
to their theory of the case.” Unger, 278 Mich. App. at 236, citing Bahoda, 448 Mich. at 282.
Here, the prosecutor directly attributed the knowledge of “we” regarding Edmond to Browne’s
testimony. “[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.” Thomas, 260 Mich. App. at 455. The prosecutor
may argue from the facts that a witness should be believed. Id. There thus was no error in the
prosecutor’s reference in this context to something “we know.”
Defendant argues similarly that the prosecutor engaged in improper vouching when
stating:
[Defendant] holes up in a townhouse in south Detroit. Okay. Why? Because he
knew Allison Browne could identify him. I am pretty confident he knew [Boose]
wasn’t going to rat him out, but he knew that white bitch. She would.
Defendant takes issue with the word “confident.” However, the prosecutor did not identify any
particular testimony that he personally knew should be believed; instead, he argued based on the
evidence. The prosecutor was making the reasonable inference that defendant had fled to
another city because he thought that Browne would identify him to the police. The evidence at
trial was that defendant left town, Browne identified defendant at the scene of the crime, and
defendant referred to Browne as the “white bitch.”
Therefore, we hold that none of the purported instances of “vouching” acted to deny
defendant a fair trial. 5
4
There was evidence that Edmond also was in the home and that he and Boose had a
relationship. Boose denied he was there.
5
Although we find that the prosecutor’s argument did not imply personal knowledge of disputed
facts, the trial prosecutor nevertheless would be well-advised to cease using in arguments to the
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C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant suggests that his trial counsel was ineffective for failing to object to the
instances of purported prosecutorial error. A defendant’s right to counsel is guaranteed by the
United States and Michigan Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This
“right to counsel encompasses the right to the effective assistance of counsel.” People v Cline,
276 Mich. App. 634, 637; 741 NW2d 563 (2007). In order to demonstrate an ineffective
assistance of counsel claim, a defendant must show (1) “that counsel’s performance was
deficient” and (2) “that counsel’s deficient performance prejudiced the defense.” People v
Taylor, 275 Mich. App. 177, 186; 737 NW2d 790 (2007). A counsel’s performance is deficient if
“it fell below an objective standard of professional reasonableness.” People v Jordan, 275 Mich
App 659, 667; 739 NW2d 706 (2007). The performance will be deemed to have prejudiced the
defense if it is reasonably probable that, but for counsel’s error, “the result of the proceeding
would have been different.” Id. The “effective assistance of counsel is presumed, and the
defendant bears a heavy burden of proving otherwise.” People v Rodgers, 248 Mich. App. 702,
714; 645 NW2d 294 (2001).
As noted, the only objections that arguably would have had any merit would have been
objections to a few leading questions,6 but as already discussed, the questioning did not create
any prejudice. In other words, assuming this failure to object did fall below an objective level of
reasonableness, the record does not show how there was a reasonable probability that the leading
questions were outcome determinative. Accordingly, defendant’s claims of ineffective
assistance fail.
III. JUDICIAL BIAS
Defendant argues that the trial judge exhibited judicial bias. Defendant raised this issue
in a motion for mistrial. We review a trial court’s decision to grant or deny a motion for a
mistrial for an abuse of discretion. People v Schaw, 288 Mich. App. 231, 236; 791 NW2d 743
(2010).
A defendant has a right to a neutral and detached judge and a trial court’s examination of
witnesses may not “pierce the veil of judicial impartiality.” People v McDonald, 303 Mich App
jury formulations such as “I am pretty confident,” which appear at least twice in the transcript.
An attorney’s opinions are simply not relevant to the jury’s determination of a case, and while
not prejudicial here in the sense of requiring reversal, they might be in a different case. See, e.g.,
People v Seals, 285 Mich. App. 1, 24; 776 NW2d 314 (2009).
6
We decline to categorize these failures to object as falling below the objective level of
reasonableness because counsel could have opined that, because there was no harm in the
questions, there was no point in objecting. And regarding the other instances where there was no
prosecutorial error, any objection would necessarily have been futile; counsel is not ineffective
for failing to raise a futile objection. Ericksen, 288 Mich. App. at 201.
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424, 437; 844 NW2d 168 (2013), citing People v Davis, 216 Mich. App. 47, 50; 549 NW2d 1
(1996).
The appropriate test to determine whether the trial court’s comments or conduct
pierced the veil of judicial impartiality is whether the trial court’s conduct or
comments were of such a nature as to unduly influence the jury and thereby
deprive the appellant of his right to a fair and impartial trial. [People v Jackson,
292 Mich. App. 583, 598; 808 NW2d 541 (2011) (quotation marks and citations
omitted).]
However, as a general matter, “[d]isqualification on the basis of bias or prejudice cannot
be established merely by repeated rulings against a litigant, even if the rulings are erroneous.” In
re MKK, 286 Mich. App. 546, 566; 781 NW2d 132 (2009). Rather, “[a] showing of prejudice
usually requires that the source of the bias be in events or information outside the judicial
proceeding.” Id.
Defendant cites several instances of perceived judicial partiality, but each is predicated
on rulings the trial court made against him. First, on the morning of his trial, defendant asked to
speak and stated that he wanted a new lawyer because his current counsel was ineffective by
failing to list certain witnesses that defendant thought would be helpful. Defendant then started
into what best could be described as his “legal” explanation for the request,7 but the trial court
interrupted to explain that defendant was not a lawyer and that his position was not valid in any
event. The court therefore denied the request to substitute new counsel. Defendant states that
the trial court did not let him continue his motion about witnesses. However, defendant’s
statement was about the performance of his attorney and the request to get new counsel, and the
trial court responded to that request. Notably, defendant does not assert that the trial court
should have appointed a new attorney at the commencement of his trial. Also, it is undisputed
that the jury was not present during this exchange, so it was impossible for the jury to have been
unduly influenced. See Jackson, 292 Mich. App. at 598.
Next, defendant takes issue with the trial court chiding defense counsel for asking
questions too slowly. From reading the cold transcript, we are unable to tell how slow defense
counsel was in questioning Browne. But the record shows that after the trial court noted how
slow counsel was taking in questioning the witness, counsel acknowledged that he was “going
through the notes that [he] made during [the witness’s] direct testimony.” Given counsel’s
admission, it seems that he was indeed taking quite a bit of time in conducting his examination of
the witness. Defendant has offered nothing to show that the trial court’s conduct was anything
other than the court’s exercise of its inherent authority “to manage [its] own affairs so as to
achieve the orderly and expeditious disposition of cases.” Maldonado v Ford Motor Co, 476
Mich. 372, 376; 719 NW2d 809 (2006); see also MRE 611(a)(2) (“The court shall exercise
7
Defendant, in pertinent part, stated, “I have no right to appeal. . . . I can only appeal with issues
that are raised.”
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reasonable control over the mode and order of interrogating witnesses and presenting evidence
so as to . . . avoid needless consumption of time”).
Defendant also cites the trial court’s admonishment of defense counsel when counsel
attempted to impeach a witness with her preliminary examination testimony without knowing or
identifying the page number from the preliminary examination transcript. The record shows that
counsel had not marked the page number of the preliminary examination testimony, which was
again causing a great amount of delay. But defendant cites no authority that requires a court to
allow counsel to take as much time as he wants, especially when the time is for counsel to locate
and identify a page number that he previously could have but has failed to mark. Once, again,
this does not demonstrate bias against defendant or defense counsel but merely the court’s
obligation to run the proceedings in an efficient manner. See Maldonado, 476 Mich. at 376;
MRE 611(a)(2).
Defendant also relies on the trial court’s denial of a request for an adjournment in the
middle of trial as an example of bias. Defendant’s trial counsel requested an adjournment to
procure the testimony of the author of a police report. The trial court denied the adjournment
because counsel had the opportunity to subpoena the officer prior to trial. Detective Hogan had
testified that a Detective Myers had made a report about an individual who claimed to have
dropped Edmond off at Boose’s home around 8:00 p.m. on the night of the shooting. This fact
could have supported the possibility that Edmond shot Cheeks. The trial court sustained the
prosecutor’s objection that questions about the contents of the police report were hearsay. The
trial court’s ruling on the prosecutor’s objection appears to be correct. See In re Forfeiture of a
Quantity of Marijuana, 291 Mich. App. 243, 254; 805 NW2d 217 (2011) (stating that police
reports generally are inadmissible hearsay); cf. MRE 803(8). Furthermore, defendant could not
have circumvented the bar against hearsay by having the author of the police report testify
because that author lacked first-hand knowledge of the statement contained in the police report,
MRE 602. Accordingly, aside from trying to get the trial to conclude in a timely manner, it is
beyond clear that subpoenaing the author of the police report would have been futile because the
author properly would not have been permitted to testify regarding the report’s contents. As
such, the trial court did not demonstrate favoritism by denying defendant the opportunity to
locate and present the testimony of a witness at the end of the trial, given that the witness was not
on the witness list and would not have been able to provide the testimony that was desired. And
in any event, as noted, adverse rulings, standing on their own, do not demonstrate judicial bias.
Defendant cites another instance of the trial court’s conduct involving defendant’s
girlfriend, Angel Jackson. Jackson, who was called by the prosecution, had testified that she did
not drive defendant in a vehicle owned by defendant’s mother. The trial court dismissed the jury
and then addressed the witness, stating that Jackson had been lying and warned her of the perils
of committing perjury. 8 Jackson then said that she had been truthful, and defendant’s trial
8
The trial court stated:
What I have listened to throughout this case, young lady, is people like yourself
getting on the witness stand and lying through their teeth, so I want to advise you
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counsel requested that the witness meet with an attorney. The trial court expressed the opinion
that witnesses were lying in murder cases despite the consequences and told defendant’s trial
counsel that his comments were not directed at defendant or counsel, but to the witnesses. The
witness requested to meet with the prosecutor, and the witness subsequently continued her
testimony, which was consistent with her earlier trial testimony. Here, the trial court’s
statements, although harsh toward the witness, were not made in the presence of the jury. Thus,
it was impossible for the comments to have unduly influenced the jury, which is the cornerstone
of a judicial bias test. Jackson, 292 Mich. App. at 598.
Because there was nothing on the record to show that the trial court’s conduct unduly
influenced the jury, the trial court did not abuse its discretion in denying defendant’s motion for
a mistrial on the basis of judicial bias.9
Affirmed.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Jonathan Tukel
of something. Somebody needs to tell somebody – I am amazed. A person is
killed, is dead, shot in the face and you get up here and lie. So, I want to advise
you of something. There is a law in this state called perjury. . . . The last witness
got up and did the same thing. Ms. Boose got up and did the same thing and now
you are following along with them. I am fed up. I am tired. I want you to take a
moment to reflect. Maybe you don’t know, but I don’t like it when people come
in here and flat out lie.
9
We need not admonish the trial judge about the perils of expressing opinions about a witness’s
truthfulness, as the trial judge is now retired.
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