People of Michigan v. Tyrone Howell ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 14, 2017
Plaintiff-Appellee,
v No. 331901
Wayne Circuit Court
TYRONE HOWELL, LC No. 15-007231-01-FC
Defendant-Appellant.
Before: TALBOT, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant, Tyrone Howell, appeals as of right his bench trial convictions of discharge of
a weapon at a building,1 felonious assault,2 carrying a firearm during the commission of a felony
(felony-firearm),3 being a felon in possession of a firearm,4 being a felon in possession of
ammunition,5 and malicious destruction of property. 6 The trial court sentenced defendant as a
second habitual offender,7 to 3½ to 10 years’ imprisonment for the discharge of a firearm at a
building conviction, a consecutive term of two years’ imprisonment for the felony-firearm
conviction, and 18 months’ probation for the remaining convictions. We affirm.
On July 27, 2015, defendant was walking by his cousin, Robert Jenkins’s, home in
Detroit when defendant’s brother, Demetrius Howell, called him over. Defendant was not
welcome at Jenkins’s home due to past differences the two had. Nevertheless, defendant
approached Jenkins’ home and the two soon began quarreling. Jenkins told defendant to leave
1
MCL 750.234b(1).
2
MCL 750.82.
3
MCL 750.227b.
4
MCL 750.224f(1).
5
MCL 750.224f(3).
6
MCL 750.377a(1)(c)(i).
7
MCL 769.10.
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and defendant left, stating that he would be back to “spray” the home up, which Jenkins
interpreted as meaning defendant would shoot at the house. Approximately ten minutes later,
Jenkins heard a barrage of gunfire. He was thrown to safety by one of the guests present at his
home, but when he looked up, Jenkins saw defendant standing on the sidewalk in front of his
house holding what appeared to be an AK-47 assault weapon with a banana clip. Defendant
turned and ran. Defendant was convicted and sentenced as noted above and this appeal
followed.
Defendant first argues that he is entitled to resentencing because there is no written proof
of service for the habitual offender notice in the court file as required by MCL 769.13(2). We
disagree.
Defendant did not raise this issue before the trial court. We thus review this unpreserved
claim under the four-prong “plain error” standard.8 The first three prongs require establishing
that “(1) an error occurred, (2) the error was ‘plain’—i.e., clear or obvious, and (3) the error
affected substantial rights—i.e., the outcome of the lower court proceedings was affected.”9 If
the first three elements are satisfied, the appellate court must then exercise its discretion in
deciding whether to reverse, and “relief is warranted only when the court determines that the
plain, forfeited error resulted in the conviction of an actually innocent defendant or seriously
affect[ed] the fairness, integrity or public reputation of [the] judicial proceedings.”10
MCL 769.13 addresses a notice of intent to seek an enhanced sentence and provides, in
relevant part:
(1) In a criminal action, the prosecuting attorney may seek to enhance the
sentence of the defendant as provided under section 10, 11, or 12 of this chapter,
by filing a written notice of his or her intent to do so within 21 days after the
defendant’s arraignment on the information charging the underlying offense or, if
arraignment is waived, within 21 days after the filing of the information charging
the underlying offense.
(2) A notice of intent to seek an enhanced sentence filed under subsection (1)
shall list the prior conviction or convictions that will or may be relied upon for
purposes of sentence enhancement. The notice shall be filed with the court and
served upon the defendant or his or her attorney within the time provided in
subsection (1). The notice may be personally served upon the defendant or his or
her attorney at the arraignment on the information charging the underlying
offense, or may be served in the manner provided by law or court rule for service
8
People v Cain, 498 Mich. 108, 116; 869 NW2d 829 (2015).
9
Id., citing People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999).
10
Cain, 498 Mich. at 116 (quotation marks and citation omitted).
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of written pleadings. The prosecuting attorney shall file a written proof of service
with the clerk of the court.[11]
A habitual second notice appears on defendant’s August 2, 2015 felony warrant and felony
information in this matter. He was arraigned on the information on August 15, 2015. There is
no proof of service of the habitual offender notice found in the lower court file. Thus, defendant
is correct that the prosecution failed to strictly comply with the statute. This was error on the
prosecution’s part. Nevertheless, defendant is not entitled to relief.
At his initial sentencing, defendant’s status as a habitual offender was mentioned by the
prosecutor and agreed to by defense counsel. Defendant later moved for resentencing based on
his assertion that he was erroneously sentenced as a third habitual offender when he should have
been sentenced as a second habitual offender. Defendant thus indicated his acknowledgment
and, indeed, his affirmative acceptance of habitual offender status thereby waiving any error
relating to his habitual offender status.12
Moreover, the purpose of requiring a prosecutor to promptly file an information charging
defendant as a habitual offender is “to provide the accused with notice, at an early stage, of the
potential consequences should the accused be convicted of the underlying offense.”13 Defendant
makes no claim that he was not served with a notice of the intent to enhance his sentence.
Indeed, defendant specifically acknowledged receiving such notice.
Defendant directs this Court to several cases that purportedly support his position that
resentencing is in order when the court file lacks a proof of service under MCL 769.13(2).
However, in the cases cited, People v Cobley, 463 Mich. 893 (2000) and People v Muhammad,
498 Mich. 909 (2015), the pertinent and controlling issue was whether the prosecutor had served
a notice of intent to seek an enhanced sentence on defendant at all—not whether a proof of
service was in the court file. Here, in contrast, defendant admitted that he was given a notice of
the prosecutor’s intent to seek habitual offender enhancement. Thus, any error by the
prosecution in failing to follow the statutory mandate to file a proof of service of the notice of
intent was harmless beyond a reasonable doubt. The absence of a proof of service in no way
prejudiced defendant’s ability to respond to his habitual offender status.14 And because the error
did not affect defendant’s substantial rights, resentencing is not required.15
11
MCL 769.13 (citations omitted).
12
See People v Siterlet, 495 Mich. 919 (2013) (“[T]he defendant waived any error in the
untimely amendment of the habitual offender enhancement notice by repeatedly admitting his
status as a fourth habitual offender. This waiver extinguished any error.”).
13
People v Shelton, 412 Mich. 565, 569; 315 NW2d 537 (1982).
14
People v Walker, 234 Mich. App. 299, 314-315; 593 NW2d 673 (1999).
15
This Court previously remanded this matter to the trial court to allow defendant to move for
resentencing on the basis of having been erroneously sentenced as a third, rather than second,
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Next, in a supplemental Standard 4 brief filed under Administrative Order No. 2004-6,
defendant raises several unpreserved issues of alleged evidentiary error that he asserts denied
him his rights to confront witnesses against him and to a fair trial. We find none of these issues
to have merit.
Constitutional questions are reviewed de novo.16 “This Court reviews the effect of an
unpreserved constitutional error under the plain-error standard.”17 “Reversal is appropriate only
if the plain error resulted in the conviction of an innocent defendant or seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.”18
We first note that one of the claimed evidentiary errors, concerning Jenkins’s testimony
as to what defendant’s brother Demetrius said, occurred at the preliminary examination. A
preliminary examination is not constitutionally required, so any errors would be harmless so long
as defendant was subsequently convicted at an otherwise fair trial.19 As will be discussed later,
because defendant was fairly convicted of the crimes at trial, any evidentiary error that occurred
at defendant’s preliminary examination was harmless.
Concerning the right to confront witnesses, and to the extent that defendant may be
challenging Jenkins’s similar statement made at trial, the Confrontation Clause of the United
States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .”20 Michigan also affords criminal
defendants the right to “be confronted with the witnesses against him . . . .”21 “[W]e understand
from the constitution that the right of confrontation is concerned with a specific type of out-of-
court statement, i.e., the statements of ‘witnesses,’ those people who bear testimony against a
defendant.”22 Conversely, out-of-court statements that are considered “nontestimonial” do not
implicate the Confrontation Clause.23
At trial, Jenkins testified that immediately before the shooting, Demetrius said, “Oh s**t,
there go my brother.” Introduction of this statement did not violate the Confrontation Clause
habitual offender. People v Howell, unpublished order of the Court of Appeals, entered
September 9, 2016 (Docket No. 331901). On remand, the trial court sentenced defendant to the
same terms of imprisonment and probation.
16
People v Shafier, 483 Mich. 205, 211; 768 NW2d 305 (2009).
17
Id.
18
People v Meshell, 265 Mich. App. 616, 628; 696 NW2d 754 (2005).
19
See People v Johnson, 315 Mich. App. 163, 200 n 7; 889 NW2d 513 (2016).
20
US Const, Am VI.
21
Const 1963, art 1, § 20.
22
People v Fackelman, 489 Mich. 515, 528; 802 NW2d 552 (2011).
23
People v Taylor, 482 Mich. 368, 374; 759 NW2d 361 (2008).
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because it was not “made under circumstances that would cause an objective witness reasonably
to believe that the statement would be available for use at a later trial.”24 Moreover, even if
Demetrius’s statement could be construed as testimonial, its introduction at trial was harmless in
light of Jenkins’s other testimony. Jenkins personally saw defendant outside immediately after
the shooting, holding what appeared to be an AK-47 with a banana clip. As defendant’s cousin,
Jenkins was able to identify defendant as the person he saw without difficulty. Thus, Jenkins’s
reference to what Demetrius said was of minimal impact and did not affect defendant’s
substantial rights.
Lastly, defendant challenges the admission of a photograph depicting him holding a gun
as unduly prejudicial and irrelevant. As stated in People v Brooks:
Relevant evidence is admissible while irrelevant evidence is not. MRE 402. Even
relevant evidence may be excluded where its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. MRE 403. Relevant evidence is evidence that tends to make
the existence of any fact at issue more probable or less probable than it would be
without the evidence. MRE 401.[25]
The photograph at issue was admitted during the prosecutor’s cross-examination of
defendant’s fiancé, Diahisha Hill, concerning defendant’s ownership and use of guns. The
photograph was arguably irrelevant because the photograph did not show defendant with the
weapon that was used in the incident at issue, but with a handgun. And there is no indication
that the photograph was taken close in time to the incident at issue. The photograph is also
arguably “other acts” evidence.
Use of other acts as evidence of character is prohibited, except as allowed by MRE
404(b), to avoid the danger of conviction based on a defendant’s history of misconduct.26 To be
admissible under MRE 404(b), other acts evidence generally must satisfy three requirements: (1)
it must be offered for a proper purpose, (2) it must be relevant, and (3) its probative value must
not be substantially outweighed by its potential for unfair prejudice.27
The prosecution used the photograph here to attack Hill’s credibility. Hill testified that
she did not know defendant to possess or own any guns and further testified that she had seen his
Facebook page. The photograph was taken from his Facebook page, indicating that Hill was not
being truthful concerning her knowledge of defendant’s possession of any gun. The photograph
was thus offered for the purpose of discrediting an alibi witness and was relevant to that purpose.
The photograph was prejudicial, to be certain, but it cannot be stated that its probative value was
24
People v Jackson, 292 Mich. App. 583, 595; 808 NW2d 541 (2011).
25
People v Brooks, 453 Mich. 511, 517; 557 NW2d 106 (1996).
26
People v Starr, 457 Mich. 490, 495; 577 NW2d 673 (1998).
27
Id. at 496.
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substantially outweighed by its potential for unfair prejudice, particularly when this was a bench
trial. The danger of unfair prejudice is minimal in a bench trial, where the trial court is presumed
to understand how evidence is to be used.28 Indeed, the trial court affirmatively stated that the
only value it placed on the photograph was in assessing the credibility of defendant’s fiancé.
In any event, even if the admission of the photograph was in error, it cannot be said that
it affected the outcome of the proceedings. Jenkins clearly testified that he argued with defendant
about being on his property, that defendant’s stated intention was to return to “spray” the place
up (which Jenkins understood to mean shoot the place up), and that gunfire broke out at his home
a short time later. After the shots ceased, Jenkins saw defendant standing on the sidewalk
holding what appeared to be an AK-47. Had the photograph been excluded from trial, the
evidence still overwhelmingly pointed to defendant’s guilt. Accordingly, the evidentiary errors
raised by defendant fail.
Defendant next argues in his Standard 4 brief that the prosecutor engaged in several acts
of misconduct that deprived him of his rights to a fair trial, due process, and to confront
witnesses against him. We disagree.
Generally, a claim of prosecutorial misconduct is reviewed de novo.29 However, a
defendant’s unpreserved claims of prosecutorial misconduct are reviewed for plain error.30 In
order to avoid forfeiture of an unpreserved claim, the defendant must demonstrate plain error that
was outcome determinative. Id. The test of prosecutorial misconduct is whether the defendant
was denied a fair and impartial trial (i.e., whether prejudice resulted).31 “Prosecutorial-
misconduct issues are decided case by case, and the reviewing court must examine the pertinent
portion of the record and evaluate a prosecutor’s remarks in context.”32
Defendant asserts that the prosecutor “coached” a witness during the witness’s
preliminary examination testimony and that the prosecutor elicited testimony from Jenkins at the
preliminary examination that served to vouch for non-testifying witnesses. However, the test for
prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.33 Thus,
defendant must demonstrate that the alleged instance of misconduct at the preliminary
examination somehow tainted his trial. Defendant here has made no such claim and cannot
demonstrate the denial of a fair and impartial trial due to any alleged prosecutorial misconduct at
the preliminary examination.
28
See People v Parker, 319 Mich. App. 664, 672; __ NW2d __ (2017) (recognizing that a judge is
“presumed to know how to sift through reliable versus unreliable evidence”).
29
People v Pfaffle, 246 Mich. App. 282, 288; 632 NW2d 162 (2001).
30
People v Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001).
31
Id.
32
People v Abraham, 256 Mich. App. 265, 272-273; 662 NW2d 836 (2003).
33
Watson, 245 Mich. App. at 586.
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Defendant next takes issue with the prosecution’s use of Jenkins’s allegedly inconsistent
testimony. Defendant first references Jenkins’s statement contained in the police report, wherein
he stated that he was told that defendant was back and had an AK-47. The report was not and
could not have been admitted as evidence.34 This statement could have been used for
impeachment purposes, however, if it was inconsistent with Jenkins’s later sworn testimony once
a proper foundation was laid.35 Moreover, while it is well established that the State may not
knowingly use false testimony to obtain a tainted conviction and that the prosecution, in fact, has
an affirmative duty to correct false testimony, not every contradiction is material and the
prosecutor need not correct every instance of mistaken or inaccurate testimony.36 Rather, “it is
the effect of a prosecutor’s failure to correct false testimony that is the crucial inquiry for due
process purposes.”37
In this case, Jenkins’s statement to police—that he was told by Demetrius that defendant
was back and had an AK-47—was consistent with his preliminary examination testimony
wherein he stated, “I seen him after the fire was—after he was firing. After he came back, his
brother was like ‘D**n, there go my brother with the AK in the alley,’ ” and “I couldn’t see
nothing. He was just letting go.” At trial, Jenkins testified on direct examination that Demetrius
said “Oh s**t, there go my brother,” and that he, Jenkins, did not see defendant actually firing
the shots.
The testimony about whether Demetrius told him he saw defendant with the AK-47
immediately before the shooting was not material to the court’s ultimate conclusion at trial.
Jenkins testified consistently that defendant said he would be back to “spray” the place up and
that immediately after the shots were fired he saw defendant standing on the sidewalk with an
AK 47, then take off running. Thus, the prosecutor did not use false testimony and had no duty
to correct Jenkins’s testimony as to what, specifically, Demetrius said immediately before the
shooting. Defendant has not established any instance of prosecutorial misconduct, let alone any
instance that deprived him of a fair trial.
Defendant next claims that there was insufficient evidence to convict him of some of the
charged crimes. We disagree.
This Court reviews claims of insufficient evidence de novo, viewing the evidence in the
light most favorable to the prosecutor, to determine whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt.38
34
See Latits v Phillips, 298 Mich. App. 109, 113; 826 NW2d 190 (2012) (police reports are
inadmissible as evidence at trial).
35
People v Jenkins, 450 Mich. 249, 256; 537 NW2d 828 (1995).
36
People v Smith, 498 Mich. 466, 475-476; 870 NW2d 299 (2015).
37
Id. at 476 (quotation marks and citation omitted).
38
People v Henry (After Remand), 305 Mich. App. 127, 142; 854 NW2d 114 (2014).
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MCL 750.234b(1) provides that “an individual who intentionally discharges a firearm at
a facility that he or she knows or has reason to believe is a dwelling or a potentially occupied
structure, whether or not the dwelling or structure is actually occupied at the time the firearm is
discharged, is guilty of a felony . . . .” The prosecution must prove that the defendant
intentionally discharged a firearm, the discharge was at a dwelling or occupied structure, and the
defendant knew or had reason to believe that the facility was a dwelling or occupied structure.39
Although “at” is not defined in the statute, dictionary definitions of the word “at” include “[t]o or
toward the direction of” and “in, on, or near.”40
Here, the evidence established that an assault weapon was fired toward Jenkins’ home
while he and several guests were on the front steps. The bullets damaged his vehicle that was
parked in the driveway in front of the home. Bullets from the weapon also penetrated the
neighbor’s home, while the neighbor was home and sleeping. Jenkins testified that prior to the
incident, he and defendant had argued and defendant affirmatively stated he would be back to
“spray” the home up. While Jenkins did not see a weapon being fired, immediately after he
heard shots he looked up and saw defendant standing on the sidewalk holding what appeared to
be an AK-47. “Circumstantial evidence and reasonable inferences drawn therefrom may be
sufficient to prove the elements of a crime.”41 Jenkins’s testimony and the evidence recovered
from the scene were sufficient to establish that defendant intentionally discharged a firearm at a
dwelling or occupied structure that defendant knew or had reason to believe was occupied.
There was thus sufficient evidence to convict defendant of discharge of a firearm at a building.
There was also sufficient evidence to convict defendant of felonious assault. “The
elements of felonious assault are (1) an assault, (2) with a dangerous weapon, and (3) with the
intent to injure or place the victim in reasonable apprehension of an immediate battery.”42
Jenkins unequivocally identified defendant as the individual holding an AK-47 moments after
shots were fired and further indicated that defendant fled. While defendant did not actually shoot
Jenkins or anyone else at the home, despite being relatively close in proximity to them, the act of
shooting in Jenkins’s general direction with an assault weapon was clearly an unlawful act which
was intended to place Jenkins and all those present in reasonable apprehension of an immediate
battery.43
The elements of felony-firearm are: (1) attempt or commission of a felony; (2) while in
the possession of a firearm. 44 Because there was sufficient evidence to convict defendant of the
39
See CJI2d 11.26a.
40
People v Wilson, 230 Mich. App. 590, 592-593; 585 NW2d 24 (1998) (citations omitted).
41
People v Jolly, 442 Mich. 458, 466; 502 NW2d 177 (1993).
42
People v Chambers, 277 Mich. App. 1, 8; 742 NW2d 610 (2007) (quotation marks and citation
omitted). See also MCL 750.82.
43
See People v Avant, 235 Mich. App. 499, 505; 597 NW2d 864 (1999).
44
MCL 750.227b.
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above two crimes, it follows that there was sufficient evidence to convict him of felony-firearm,
as both offenses are felonies that were committed with the use of a firearm.
Defendant nevertheless states that the evidence was insufficient because the trial court
relied on hearsay testimony, a witness’s inconsistent statements, and witness misidentification.
However, the trial court is presumed to know the law, such that we can generally assume that the
trial court’s verdict in a bench trial did not rest on unreliable or inadmissible evidence.45
Defendant has not demonstrated otherwise.
Lastly, defendant avers that he was denied the right to the effective assistance of counsel
due to trial counsel’s failure to object to the admission of hearsay evidence, the vouching of one
witness for another, non-testifying witness, and not moving for a mistrial, among other things.
We do not find that defendant was deprived of the effective assistance of counsel.
Defendant did not file a motion for new trial with the trial court, nor did he move for a
46
Ginther hearing in the trial court. The issue is thus unpreserved. This Court’s review of
unpreserved claims of ineffective assistance of counsel is limited to errors apparent on the
record.47
The right to counsel during a criminal trial is guaranteed by both the United States and
Michigan Constitutions.48 This right is not merely to any assistance of counsel, but to effective
assistance of counsel.49 In order to show that counsel was ineffective, a defendant generally
must show that: (1) counsel’s performance did not meet an objective standard of reasonableness
under prevailing professional norms; (2) there is a reasonable probability that, but for counsel’s
errors, the results of the proceedings would be different; and (3) the result that did occur was
fundamentally unfair or unreliable.50 In other words, a defendant must show both that counsel’s
performance was deficient and that counsel’s deficient performance prejudiced the defense. 51
45
See People v Sherman-Huffman, 466 Mich. 39, 43; 642 NW2d 339 (2002) (“[A] trial judge in a
bench trial knows the applicable law.”). See also People v Jones, 168 Mich. App. 191, 194; 423
NW2d 614 (1988), overruled in part on other grounds by People v Garrison, 495 Mich. 362; 852
NW2d 45 (2014) (“A judge, unlike a juror, possesses an understanding of the law which allows
him to ignore such errors and to decide a case based solely on the evidence properly admitted at
trial.”).
46
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
47
People v Crews, 299 Mich. App. 381, 400; 829 NW2d 898 (2013).
48
US Const, Am VI; Const 1963, art 1, § 20.
49
People v Vaughn, 491 Mich. 642, 669; 821 NW2d 288 (2012).
50
People v Lockett, 295 Mich. App. 165, 187; 814 NW2d 295 (2012).
51
People v Riley, 468 Mich. 135, 140; 659 NW2d 611 (2003).
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Effective assistance of counsel is presumed and the challenging defendant bears the
heavy burden of proving otherwise.52 The defendant must also overcome a strong presumption
that counsel’s performance constituted sound trial strategy. 53 Trial counsel is not ineffective
when failing to make objections that lack merit.54
Defendant’s argument that defense counsel was ineffective for failing to object to the
prosecution’s “vouching” for absent witnesses is easily disposed of, as no such vouching took
place. There was nothing to which an objection could be posed.
Defendant’s claim of ineffective assistance of counsel premised upon counsel’s failure to
object to hearsay testimony likewise fails. While Jenkins’s trial testimony that Demetrius said,
“Oh s**t, there go my brother,” is likely hearsay, we again note that judges, unlike jurors,
possess an understanding of the law which allows them to ignore evidentiary errors and to decide
a case based solely on the evidence properly admitted at trial. 55 Thus, had defense counsel
objected to the testimony, the impact on the trial would have been minimal. This is particularly
so when Jenkins also testified that immediately after the shooting he clearly saw defendant
standing in front of the house holding an AK-47.
With respect to counsel’s failure to object to Jenkins’ inconsistent statements, the only
inconsistency is that at the preliminary examination Jenkins testified that Demetrius told him he
saw defendant with an AK-47 just prior to the shooting and at trial Jenkins testified that
Demetrius simply told him he saw defendant just prior to the shooting. Jenkins’s testimony at
trial was more beneficial to defendant than was his preliminary examination testimony. Thus, it
was likely trial strategy not to clarify the testimony, attempt to impeach Jenkins with any prior
inconsistent statement, or even point out that it was inconsistent with his preliminary
examination testimony. This was sound trial strategy and counsel’s not objecting was
reasonable.
Addressing counsel’s failure to object to the admission of the photograph, even if the
photograph was inadmissible, it is assumed that the trial court’s verdict rested upon evidence
properly offered and not upon the inadmissible evidence.56 At this bench trial, the court
specifically stated that the only value in the photograph was in assisting the court in assessing the
credibility of defendant’s fiancé. Given the eyewitness testimony of Jenkins, defendant has not
shown that any error in the admission of the photograph was outcome determinative.
52
People v Seals, 285 Mich. App. 1, 17; 776 NW2d 314 (2009).
53
Riley, 468 Mich. at 140.
54
People v Matuszak, 263 Mich. App. 42, 58; 687 NW2d 342 (2004).
55
See Sherman-Huffman, 466 Mich. at 43; Jones, 168 Mich. App. at 194.
56
See Sherman-Huffman, 466 Mich. at 43; Jones, 168 Mich. App. at 194.
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Because counsel was not ineffective, there would be no basis for a mistrial. Defendant’s
argument otherwise is without elaboration and without merit.
Affirmed.
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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