People of Michigan v. Torye Shevar Gilbert ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 17, 2020
Plaintiff-Appellee,
v No. 344643
Saginaw Circuit Court
TORYE SHEVAR GILBERT, LC No. 17-044170-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of two counts of assault with intent to
commit murder (AWIM), MCL 750.83; possession of a firearm by a felon (felon-in-possession), MCL
750.224f; carrying a weapon with unlawful intent, MCL 750.226; resisting or obstructing a police
officer, MCL 750.81d(1); third-degree fleeing and eluding, MCL 257.602a(3)(a); and four counts of
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). He was
sentenced to 35 to 50 years’ imprisonment for each AWIM conviction, 15 to 30 years’ imprisonment for
the felon-in-possession and carrying a weapon with unlawful intent convictions, 10 to 15 years’
imprisonment for the resisting or obstructing a police officer conviction, 10 to 20 years’ imprisonment
for the fleeing and eluding conviction, and two years’ imprisonment for each felony-firearm conviction.
Defendant appeals as of right, and we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant’s convictions arise from the dissolution of his relationship with his ex-girlfriend, the
primary victim.1 After the relationship ended, defendant appeared at the victim’s workplace, called her
repeatedly while she was at work, and appeared at her home at night. Although defendant made threats
during the course of their relationship, the victim reported the recent threats to her manager, filed a
1
The victims of the assault with intent to commit murder convictions were the ex-girlfriend and her
daughter. To avoid confusion, we will refer to the ex-girlfriend as “victim.”
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police report, and sought a personal protection order. On February 9, 2017, a security officer met the
victim in the lobby to walk her to a waiting car driven by her daughter. The victim paused when she
saw the defendant in his vehicle stopped at a traffic light, but proceeded to her daughter’s car without
incident after defendant drove away. While their car waited in a line of traffic to exit the parking lot,
defendant drove his vehicle within feet of the stopped car, walked to the passenger side where the victim
was seated, pointed the gun at her, and fired a shotgun into the car, shattering the glass all over the
victim. He fired a second shot into the car. The daughter drove over curbs to flee and drove onto the
freeway with defendant in pursuit in his own vehicle. The women were able to evade defendant when
he drove into a ditch, and they flagged down a police officer. Defendant became involved in a police
chase and threw his shotgun from his car during the pursuit. He also refused commands to surrender
and fled on foot, but was captured. Defendant gave a statement to the police and asserted that he only
intended to scare the victim.
During defendant’s first trial, the prosecution played a video recording of the custodial
statements that defendant made to the police following his arrest. During the playing of the recording,
the trial court instructed the prosecution to stop the recording, and the jury was removed from the
courtroom. The trial judge then expressed his concern that the jury had heard a statement about
defendant “being locked up for 15 years.” Defense counsel moved for a mistrial. The trial court agreed
that the statement was concerning and that any conviction by the jury would be appealable and likely
reversible. Therefore, the trial court declared a mistrial.
During the second trial, the jury was informed by stipulation that defendant had a conviction of a
specified felony that affected his right to the possession or use of a firearm. The jury also heard the
testimony of the victim and her daughter, a security guard who had witnessed the shooting, and several
of the responding and investigating officers. On the second day of trial, the prosecution played the
recording of defendant’s statements for the jury and the trial court once again paused the recording. A
bench conference was held, and shortly thereafter, the jury was instructed:
Ladies and gentlemen, you heard a statement that was made by [defendant] that I did my
time. Any reference to doing time you are not to consider in making your decision. Your
decision is to be based solely upon the evidence in this case and the testimony from the
witness stand. You are to draw no inferences from that statement in making your
decision.
The prosecution rested its case, and the jury was excused.
The trial court then inquired if defendant wished to testify. After advising defendant of his rights
and receiving a waiver, the trial court inquired if there was any objection to the curative instruction.
Both defense counsel and the prosecutor expressly stated that there was no objection, and the trial court
explained why it chose to give a curative instruction as the remedy:
And the Court does not feel that it rises to the level of this Court having to declare a
mistrial, given the fact that the jury will already be aware that he’s a convicted felon and
that they could deduce from that that he previously did time. There was no number of
years that was attached to that statement so the Court does not feel that it’s necessary to
declare a mistrial at this point in time. I believe the curative instruction is sufficient.
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During the prosecutor’s closing arguments, she stated:
There is no doubt in my mind that that the People have met their burden beyond
a reasonable doubt. The Judge is going to give you instructions on the law. And this is
just a summary. If anything is different than what I’m going to go over, please follow the
Judge’s instructions. We have ten counts to prove.
After presenting the elements of each charge and explaining how the evidence and testimony supported
a conclusion that the prosecution’s burden had met, the prosecutor stated once again:
I say to you today, that there is no doubt in my mind that we have met our burden.
We have proven beyond a reasonable doubt that the defendant did commit each and every
court that he’s been charged with, one through ten. And we ask you, the People ask you,
to do what’s right, and to find the defendant guilty as charged. Thank you.
During rebuttal argument, the prosecutor again expressed her belief that the charges had been proven
beyond a reasonable doubt and that the charge of assault with intent to commit murder was the
appropriate charge, contrary to defense counsel’s argument that a lesser offense occurred:
The People believe wholeheartedly that this is not a great bodily harm case. This
is not an only assault case. This is an assault with intent to murder. He intended to
murder [the victim]. And through transferred intent, he put [her daughter] in harm’s way
as well. We talked about transferred intent. The defense is saying we don’t have a chain
to connect, but we’ve connected every dot. We’ve went through every element. There is
no doubt in my mind that we have met our burden. And I ask you, when you go back and
deliberate, that you find the defendant guilty on all ten charges.
Following deliberations, the jury convicted defendant as charged.
II. MISTRIAL
Defendant first alleges that the trial court erred by failing to declare a mistrial during the second
trial when the prosecution played the portion of the recording in which the defendant admitted that he
had “done time” because of the prejudicial effect of the statement. We disagree.
First, the record does not reflect that defendant moved for a mistrial after the recording was
played. Accordingly, on this unpreserved issue, our review is limited to plain error affecting defendant’s
substantial rights. People v Kahley, 277 Mich. App. 182, 183; 744 NW2d 194 (2007). To avoid
forfeiture under the plain error rule, a defendant must show that (1) an error occurred, (2) the error was
clear or obvious, and (3) “the plain error affected [the defendant’s] substantial rights.” People v
Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). Plain error “generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. Even if a
defendant establishes a plain error that affected his substantial rights, “[r]eversal is warranted only when
the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error
seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the
defendant’s innocence.” Id. (quotation marks and citation omitted; second alteration in original).
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“A mistrial should be granted only for an irregularity that is prejudicial to the rights of the
defendant, and impairs his ability to get a fair trial.” People v Haywood, 209 Mich. App. 217, 228; 530
NW2d 497 (1995) (citations omitted). The grant of a mistrial is warranted “only where the error
complained of is so egregious that the prejudicial effect can be removed in no other way.” People v
Gonzales, 193 Mich. App. 263, 266; 483 NW2d 458 (1992).
“It is well settled that evidence of a prior conviction may be prejudicial to the accused, the
danger being that the jury will misuse prior conviction evidence by focusing on the defendant’s general
bad character.” People v Griffin, 235 Mich. App. 27, 36; 597 NW2d 176 (1999) (quotation marks and
citations omitted), overruled on other grounds by People v Thompson, 477 Mich. 146; 730 NW2d 708
(2007). When a defendant is charged with felon-in-possession, the charge need not be severed from the
remaining charges because the fact of defendant’s prior conviction could be introduced by stipulation
and an instruction given to consider the prior conviction as it relates only to the felon-in-possession
prosecution. See People v Mayfield, 221 Mich. App. 656, 658-660; 562 NW2d 272 (1997). These
safeguards are adequate to ensure that a defendant suffers no unfair prejudice. Id.
As the trial court noted, the parties stipulated and informed the jury that defendant had a prior
felony conviction. Defendant’s past criminal history was, therefore, at issue and known to the jury.
Under the circumstances, the fact that defendant made an isolated statement that acknowledged that he
previously did “time” did not constitute a prejudicial irregularity or error so egregious that a mistrial was
warranted. Haywood, 209 Mich. App. at 228; Gonzales, 193 Mich. App. at 266. Moreover, the trial court
instructed the jury to disregard defendant’s statement in reaching a decision. “Jurors are presumed to
follow their instructions, and instructions are presumed to cure most errors.” People v Abraham, 256
Mich. App. 265, 279; 662 NW2d 836 (2003).
Nonetheless, defendant submits that the trial court held that the reference to imprisonment in the
first trial warranted a mistrial, and therefore, the only proper remedy for the recurrence of the error in the
second trial is also a mistrial. We disagree. In the first trial, defendant expressly referenced “15 years,”
a lengthy term of imprisonment that could have caused the jury to question the nature of the conviction
that necessitated such a sentence. However, defendant’s reference to “doing time” in the second trial did
not reference a defined time period. The statement heard by the jury did not describe the nature of the
prior conviction. In light of the stipulation that defendant was previously convicted of a felony, the
reference to “doing time” merely comports with the general consequences for a felony conviction.
Furthermore, in the present case, defendant did not dispute that he fired a shotgun at the victim while she
was a passenger seated next to the driver, her daughter. Accordingly, we cannot conclude that the
statement was so egregious as to deny defendant a fair trial or that defendant was prejudiced. Defendant
did not establish plain error affecting his substantial rights.
III. PROSECUTORIAL MISCONDUCT2
2
Although defendant characterizes the prosecutor’s statements as misconduct, this Court recently
explained that a fairer label for most claims of prosecutorial misconduct would be “prosecutorial error,”
because only the most extreme and rare cases rise to the level of “prosecutorial misconduct.” People v
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Defendant also submits that the prosecutor’s repeated statements during closing arguments and
rebuttal regarding her “belief” and that there was “no doubt in [her] mind” that the prosecution had met
its burden constituted prosecutorial misconduct. We disagree.
We note that defendant did not object to the prosecutor’s statements during the lower court
proceedings. Unpreserved claims of prosecutorial misconduct are reviewed for plain error. People v
Unger, 278 Mich. App. 210, 234-235; 749 NW2d 272 (2008). Reversal is warranted only when plain
error resulted in the conviction of an innocent person, or seriously affected the fairness, integrity, or
public reputation of the proceedings. Id. at 235. Reversal is not appropriate where a curative instruction
could have alleviated the prejudicial effect. Id.
“[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and impartial
trial.” People v Dobek, 274 Mich. App. 58, 63; 732 NW2d 546 (2007). A defendant’s opportunity for a
fair trial can be jeopardized when the prosecutor interjects issues broader than the guilt or innocence of
the accused. Id. at 63-64. Prosecutorial misconduct issues are decided on a case-by-case basis, and the
reviewing court must examine the record and evaluate a prosecutor’s remarks in context. Id. at 64.
“The propriety of a prosecutor’s remarks depends on all the facts of the case.” Id. (quotation marks and
citation omitted). Further, prosecutorial comments must be read as a whole and evaluated in light of
defense arguments and the relationship they bear to the evidence admitted at trial. Id.
Typically, prosecutors are afforded great latitude regarding their arguments at trial 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. However, prosecutors must refrain from either
expressing their personal opinion of a defendant’s guilt or making denigrating or prejudicial remarks
against a defendant. People v Bahoda, 448 Mich. 261, 282-283; 531 NW2d 659 (1995). A prosecutor
may not vouch for the character of a witness or place the prestige of her office behind them. People v
Bairefoot, 117 Mich. App. 225, 229; 323 NW2d 302 (1982).
The argument that the prosecutor improperly expressed an opinion on the
question of guilt is frequently urged on appeal. We emphasize that this question does not
turn on whether or not any magic words are used. If the prosecutor says “I believe”
rather than “the evidence shows”, this in and of itself does not constitute reversible error.
The prosecutor is free to argue that the evidence shows that the defendant is guilty. The
question is not whether the jury would conclude that the prosecutor believes that the
defendant is guilty, a conclusion they would reach in any event, but rather, whether the
prosecutor has attempted to vouch for the defendant’s guilt. The prosecutor may not
attempt to place the prestige of his office, or that of the police, behind a contention that
the defendant is guilty, but he may argue that the evidence shows that the defendant is
guilty. [People v Cowell, 44 Mich. App. 623, 628; 205 NW2d 600 (1973).]
A review of the prosecutor’s closing argument reveals that she addressed the elements of all ten
Cooper, 309 Mich. App. 74, 87-88; 867 NW2d 452 (2015). However, we will use the phrase
“prosecutorial misconduct” because it has become a term of art in criminal appeals. Id.
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offenses and applied the evidence presented at trial to those elements. At the conclusion of the analysis
of each charge, the prosecutor either opined that the elements were met or her belief that the elements
were met. Her belief was not relevant, but rather, whether the evidence established the elements was the
crucial inquiry. Cowell, 44 Mich. App. at 628. However, her use of an inartful term did not alter the fact
that the jury was responsible for determining defendant’s guilt, id., a statement that the prosecutor also
made to the jury. Accordingly, the prosecutor’s arguments, albeit inartful, were properly premised on
the evidence and represented the prosecutor’s reasonable inferences3 drawn from the evidence.
Moreover, the prosecutor did not denigrate defendant or argue a personal belief of defendant’s guilt;
rather, the prosecutor focused on whether the burden of proof had been met. Further, even if the
statements were improper, they were not so inflammatory or pervasive that a curative instruction would
have been futile. Unger, 278 Mich. App. at 234.
In that regard, the record reflects that the trial court instructed the jury to decide the case on the
basis of only properly admitted evidence and told them that the attorney’s arguments were not evidence.
This Court has explained that “[c]urative instructions are sufficient to cure the prejudicial effect of most
inappropriate prosecutorial statements.” People v Seals, 285 Mich. App. 1, 22; 776 NW2d 314 (2009).
As previously noted, “jurors are presumed to follow their instructions.” Unger, 278 Mich. App. at 235.
Additionally, there is no indication that the jury was distracted from deciding the issues of the
case. The jury heard two days of testimony regarding the shooting and had the opportunity to hear
testimony from the victims, witnesses, and officers involved. Accordingly, it is reasonable to conclude
that the jury was well-versed in the facts of the case and able to make a determination of defendant’s
guilt on the basis of the evidence presented rather than attorney argument. In whole, on this unpreserved
issue, defendant failed to establish that he was prejudiced by any alleged errors or that the alleged errors
impacted the outcome of the jury’s verdict or denied him of a fair trial. He did not challenge the
shooting, his flight, or his contact with the officers, but merely asserted that his intent was only to scare.
This claim of error does not provide him with appellate relief.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his trial counsel was ineffective for failing to seek a mistrial in the
second trial and for failing to object to the prosecutorial misconduct. We disagree.
Because defendant failed to move for a new trial or an evidentiary hearing pursuant to People v
Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973), our review is limited to mistakes apparent from the
record, People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012). To succeed in this claim,
defendant must demonstrate that counsel’s performance fell below an objective standard of
3
Defendant submitted that the prosecutor presented inadmissible opinion testimony by arguing that
defendant had the intent to kill. However, the prosecutor questioned defendant’s theory of the case
before the jury by noting that if defendant did not have the intent to kill, but only the intent to scare the
victim and her daughter, he would merely brandish the weapon or fire it into the air, a legitimate inquiry
in light of the evidence admitted at trial.
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reasonableness and there is a reasonable probability that, but for counsel’s errors, the results would have
been different. People v Scott, 275 Mich. App. 521, 526; 739 NW2d 702 (2007).
In this case, given defendant’s failure to request an evidentiary hearing, the question of whether
trial counsel requested or discussed the possibility of a mistrial with the trial court during the bench
conference is unknown.4 Nonetheless, on this record, it is clear that the trial court made such a
consideration and determined that a mistrial was unnecessary given that the jury was aware of
defendant’s prior felony conviction in light of the stipulation. Further, the trial court noted that the jury
could have reasonably ascertained that the felony conviction resulted in a period of incarceration, and no
specific time frame was discussed. Trial counsel may have reasonably believed that the curative
instruction was sufficient, given these circumstances.
Further, given the trial court’s statements, it is apparent that even if trial counsel had moved for a
mistrial, such a motion would have been futile and ultimately denied. This Court has previously
indicated that “[f]ailing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010).
Therefore, counsel’s performance did not prejudice defendant and did not constitute ineffective
assistance of counsel.
Similarly, defendant cannot establish that defense counsel’s failure to object to the prosecutor’s
statements constituted ineffective assistance of counsel. Counsel was not required to raise a meritless
objection, Ericksen, 288 Mich. App. at 201, and defendant cannot establish that, but for counsel’s alleged
error, he would not have been convicted, Scott, 275 Mich. App. at 526.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jonathan Tukel
4
It is imperative that the trial court and the parties place a summation of bench conferences on the
record to preserve their rights and in order to facilitate appropriate appellate review.
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