People of Michigan v. Pierrez Ricardo Lassetti IV ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 21, 2017
Plaintiff-Appellee,
v No. 332680
Oakland Circuit Court
PIERREZ RICARDO LASSETTI IV, LC No. 2015-254186-FC
Defendant-Appellant.
Before: BECKERING, P.J., and O BRIEN and CAMERON, JJ.
PER CURIAM.
A jury convicted defendant, Pierrez Ricardo Lassetti, IV, of three counts of armed
robbery, MCL 750.529, and one count of bank robbery, MCL 750.531. The trial court sentenced
him as a fourth habitual offender, MCL 769.13, to prison terms of 20 to 40 years for each
conviction, to be served concurrently. Defendant appeals his convictions as of right. We affirm.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
At approximately 10:45 a.m. on March 11, 2015, a lone masked man dressed in black,
wearing dark gloves, and waiving and pointing what some witnesses thought was a gun covered
in a black cloth entered the Comerica Bank located in Southfield, Michigan, at Ten Mile Road
and Telegraph Road. It is undisputed that no one saw an actual weapon and that the robber did
not verbally threaten that he had a gun. One after the other, the robber approached the window
of three tellers and demanded that each give the robber her money. Along with the money in
their tills, two of the tellers gave defendant “bait money”1 and packets of money containing GPS
trackers. The GPS trackers activated, allowing police to know the direction and speed of travel
of the trackers and the stolen money that concealed the trackers. Using the information provided
by the trackers and conveyed by dispatch, police stopped a black Dodge Charger in which
defendant was the sole occupant. Among the items on the passenger seat of the Charger was
1
Paul Praddel, Comerica’s lead investigator in Michigan, explained at trial that bait money
consists of five 10s and five 20s, of which the serial numbers have been recorded and the bills
stamped with a teller’s stamp that correlates with a stamp on the band binding the bills; the
money is pre-recorded, pre-marked, and kept at the bank.
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apparel matching the description of the clothes, gloves, and mask worn by the bank robber, and
an empty conditioner or shampoo bottle; under the apparel was a bag of money containing the
bank’s bait money and the GPS trackers. Police arrested defendant and charged him with three
counts of armed robbery, and one count of bank robbery. After a preliminary examination, the
district court bound defendant over to the circuit court for further proceedings.
On July 2, 2015, the date scheduled for the final pre-trial conference, court-appointed
defense counsel Raymond Correll told the trial court that defendant had asked for a new attorney.
Defendant informed the court that Correll had been ineffective and had not properly advocated
his case. Specifically, defendant accused Correll of failing to argue competently for dismissal of
the armed robbery charges on grounds that no one saw a weapon or heard the robber make
threats about having a weapon, of not asking him about witnesses for the preliminary
examination, and of not providing him with complete transcripts of the preliminary investigation.
Correll responded that he had in fact made arguments before the district court on the issues of
armed robbery and bank robbery, visited defendant four times in jail, and provided preliminary
examination transcripts. In addition, Correll said he had obtained a court order allowing him to
take his laptop computer into the jail and had shown defendant surveillance video from the bank
robbery, and he had requested dash cam video of the traffic stop of defendant’s Charger. Correll
told the trial court that he typically did not ask to withdraw from cases, but defendant had a
pattern of asking for new attorneys and it might be best in this case for the trial court to allow
him to withdraw. The trial judge told defendant that she knew Correll well, that he was one of
the best lawyers to practice in her courtroom, and that she had not heard one scintilla of evidence
that would compel the conclusion that Correll was “incompetent or not worthy” of representing
defendant. The trial court noted that, in light of the record made, defendant could represent
himself, but said it would not require defendant to make an immediate decision. Rather, the
court adjourned the trial date and indicated that it would use the original trial date as a status
conference to give defendant an opportunity to determine whether he wanted to represent himself
or to hire an attorney of his choosing.
At the July 13, 2015 status conference, defendant twice asked Correll to “recuse” himself,
adding to his prior accusations that Correll had not communicated with him since the bindover
and that there was an irreparable breakdown in their relationship. Among defendant’s other
complaints was that Correll had not discussed strategy with defendant and had failed to move for
dismissal of all charges based on the fact that the complaint warrant in defendant’s discovery
packet was unsigned. Defendant explained to the trial court that he was not asking for an
attorney of his choice, just for one that would advocate for him. Asked to respond, Correll
indicated that he and defendant had discussed strategy and that defendant had provided a factual
defense that, if the jury believed it, could result in a not-guilty verdict. Correll also said that
defendant had stopped communicating with him. The trial court again told defendant that there
was no good cause to replace Correll. During the course of the hearing, the court informed
defendant that he had the right to represent himself if he so chose, but recommended against it,
noting that defendant was facing serious charges and self-representation would put him at a
disadvantage; further, if the jury found him guilty, the sentencing guidelines called for at least 9-
30 years in prison. After reiterating the importance of having adequate counsel, the court
informed defendant that if he elected to represent himself, the court would appoint Correll as
advisory counsel.
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Also at the status conference, defendant asked Correll to file several motions that
defendant had drafted. Asked whether he was going to represent himself, defendant said, “Well,
at this point, I have no counsel because I fired him and there’s a conflict of interest. When I do
the motion, I’ll—I’ll—I did it down there. I’ll do it here.” Accordingly, at a September 9, 2015
motion hearing, defendant argued motions to replace Correll, to dismiss the charges due to the
unsigned complaint warrant in defendant’s discovery packet, to quash the armed robbery
charges, and to suppress the evidence seized from his car because it resulted from a traffic stop
made without probable cause. After oral argument by both parties on each motion, the trial court
denied them all.
At every pretrial hearing, prior to voir dire, and during the trial, defendant asked the court
to replace Correll. The essence of defendant’s accusations remained the same: Correll had been
“unenthusiastic” in his motion to dismiss on the ground of a faulty indictment, had not
challenged the prosecution’s case with regard to the armed robbery charges, had failed to
challenge the validity of the traffic stop that resulted in defendant’s arrest, and was working with
the prosecution against defendant. Defendant insisted that Correll had provided ineffective
assistance, and that there was an irreparable breakdown in the attorney-client relationship. The
trial court denied defendant’s motions to replace Correll, first as defense counsel and then as
advisory counsel, on the ground that defendant had not shown good cause to replace him. The
trial court repeatedly warned defendant that self-representation was not in his best interest, that
the charges against him and the potential consequences of guilty verdicts were serious, and that
Correll could provide adequate representation. Correll expressed his willingness to continue as
defendant’s defense counsel or as advisory counsel at the court’s discretion. In addition to his
repeated requests to dismiss Correll and a vigorous motion practice, defendant pursued and
obtained a psychological evaluation and a plea agreement that he eventually rejected.
Defendant’s trial began March 14, 2016, with defendant representing himself and Correll
acting as advisory counsel. Defendant actively engaged in voir dire, gave an opening statement,
cross-examined the prosecution’s witnesses, called and examined defense witnesses, and gave a
closing argument. Three tellers—Tiara Moore, Monique Shoulders, and Terri Smith—testified
that they were present at the subject bank on the morning of March 11, 2015, when a man
wearing a mask, a black hoodie, black jeans, and dark gloves entered the bank. Each woman
said she was afraid because the robber was waving and pointing what she thought was a gun
covered with a black cloth. Each woman testified that she complied with the robber’s demand
to give him her money; Shoulders and Smith also handed over their bait money and money
concealing a GPS tracker. They all testified that after the robber took the money, he left the
bank, ran behind the building toward the drive-thru area, hopped over a wall, and disappeared.
Southfield police officer Aaron Huguley testified that dispatch was broadcasting updates
of the location of the tracking devices, and that they were traveling toward the intersection of
Nine Mile Road and Lahser road. As Officer Huguley approached the intersection, he saw two
vehicles: a Chrysler with two occupants, and a Dodge Charger one with one occupant. Based on
the information he received from the tracking devices and dispatch’s communication that police
were looking for a lone suspect, the officer pulled behind the Charger, activated his lights, and
made a traffic stop. Other officers arrived on the scene at about the same time, among them,
Officer Jeffrey Medici. Officer Medici testified that while the other officers were taking
defendant into custody, he walked around the Charger and observed black clothing bunched up
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on the passenger seat. Knowing that police were looking for a lone male dressed in black,
Officer Medici opened the door and observed several items of black clothing, brown gloves, a
black do-rag, a blackened empty bottle of hair conditioner inside a jacket pocket, and “a plastic
bag with a lot of US currency.” Evidence technician and patrol officer Christopher Thomas
testified that he recovered a white plastic bag full of money, a black do-rag, a black long-sleeved
shirt, a black hoodie, a black pair of jeans, and an empty bottle of shampoo from the passenger
seat of the Charger. He further testified that some of the money disguised a GPS tracker pack,
which Paul Praddel, a lead investigator for Comerica Bank, identified as the bank’s. Thomas
also testified that Praddel identified among the money recovered two packs of the bank’s bait
money.
On cross-examination, defendant elicited testimony from the tellers that they did not see a
gun, nor did the robber make any verbal threats involving a gun. Defendant also drew attention
to alleged discrepancies in some of the witness’s physical description of the robber at the time of
the robbery and their description of the robber at trial. Defendant’s theory of defense involved
two men who allegedly befriended him at the casino the night before the robbery. Defendant
gave them a ride in his Charger, dropping the first man off near the subject bank, and the second
man at a house. While he was waiting for the second man to come out of the house, the person
defendant believed to be the first man jumped into his car and told him to drive. Defendant
drove off, but then struggled with the man and ejected him from the car while retaining the
man’s plastic bag. Defendant sought to establish this theory by asking Officer Thomas on cross-
examination why he collected from the Charger only those items Thomas thought had
evidentiary significance while leaving behind items defendant characterized as potentially
exculpatory. Defendant viewed Thomas’s discriminatory recovery of evidence as tantamount to
suppressing evidence that defendant claimed would have proved his theory.
After closing arguments, the trial court instructed the jury in the law without objections
from either party, and the jury deliberated for approximately three and a half hours before
returning guilty verdicts on all charges. Subsequent to sentencing, defendant filed a motion for a
new trial. At the motion hearing, defendant raised many of the same issues he had raised
throughout the pretrial proceedings, adding allegations of identification tainted by
suggestiveness, judicial bias, and judicial coercion of a verdict. The trial court denied the
motion, and this appeal followed.
II. ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Defendant first contends that the evidence presented at trial was insufficient to prove him
guilty of the charged crimes beyond a reasonable doubt. We disagree. We review de novo a
defendant’s challenge to the sufficiency of the evidence. People v Meissner, 294 Mich. App. 438,
452; 812 NW2d 37 (2011). We “view the evidence in a light most favorable to the prosecution
and determine whether a rational trier of fact could find that the essential elements of the crime
were proved beyond a reasonable doubt.” People v Hoffman, 225 Mich. App. 103, 111; 570
NW2d 146 (1997).
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1. IDENTIFICATION
Defendant first contends that the prosecution’s evidence was insufficient to prove that he
was the robber. We disagree. “[I]dentity is an element of every offense,” People v Yost, 278
Mich. App. 341, 356; 749 NW2d 753 (2008), and a defendant’s identity as the perpetrator of the
charged offenses must be proved beyond a reasonable doubt, see People v Kern, 6 Mich. App.
406, 409-410; 149 NW2d 216 (1967). The prosecution may establish identity by circumstantial
evidence and any reasonable inferences therefrom. See People v Nelson, 234 Mich. App. 454,
459; 594 NW2d 114 (1999).
In the instant case, the prosecution used circumstantial evidence to establish the identity
of the robber as defendant. All three tellers testified that the robber was wearing a black hoodie,
black jeans, a black mask, and had something wrapped in a black cloth in his hand. Two tellers
testified that they gave the robber a pack of money that concealed a GPS tracking device, Officer
Huguley and Comerica’s security officer described the path the money took according to the
GPS tracker, and Officer Huguley testified that he apprehended a Dodge Charger based on
information received from the GPS tracker and the car’s number of occupants. Officer Huguley
identified defendant as the driver of the Charger, and Officer Thomas recovered clothing, money,
and the GPS trackers associated with the bank robbery from the Charger’s passenger seat.
Viewing this evidence in the light most favorable to the prosecution, Hoffman, 25 Mich. App. at
111, a rational trier of fact could infer beyond a reasonable doubt that defendant was the person
who robbed the Comerica Bank.
2. ARMED ROBBERY
In order to establish the elements of armed robbery, MCL 750.529,2 the prosecutor had to
present evidence sufficient to prove the following beyond a reasonable doubt with respect to
each bank teller:
(1) the defendant, in the course of committing a larceny of any money or other
property that may be the subject of a larceny, used force or violence against any
person who was present or assaulted or put the person in fear, and (2) the
defendant, in the course of committing the larceny, either possessed a dangerous
weapon, possessed an article used or fashioned in a manner to lead any person
present to reasonably believe that the article was a dangerous weapon, or
represented orally or otherwise that he or she was in possession of a dangerous
2
MCL 750.529 provides:
A person who engages in conduct proscribed under [MCL 750.530] and who in
the course of engaging in that conduct, possesses a dangerous weapon or an
article used or fashioned in a manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who represents orally or otherwise
that he or she is in possession of a dangerous weapon, is guilty of a felony
punishable by imprisonment for life or for any term of years.
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weapon. [People v Chambers, 277 Mich. App. 1, 7; 742 NW2d 610 (2007); see M
Crim JI, 18.1.]
It is undisputed that no one saw the robber with a weapon or heard him threaten anyone
with having a weapon, and police did not recover a weapon from defendant’s Charger.
Defendant repeatedly tried to establish through cross-examination that the videos of the robber
demonstrated that the robber did not have an object in his hands, and that the only thing under
the black cloth was the robber’s hand and fingers. Thus, the question on appeal is whether using
one’s hand or fingers to feign a weapon satisfies the “armed” element of armed robbery. Under
Michigan law, it does. Defendant errs to the extent he assumes that a conviction for armed
robbery requires proof beyond a reasonable doubt that the perpetrator either was “actually armed
with a dangerous weapon or actually armed with an article used or fashioned to induce a victim
to reasonably believe that defendant was armed with a dangerous weapon.” People v Jolly, 442
Mich. 458; 502 NW2d 177 (1983). As the Jolly Court explained:
The typical armed robbery case prosecuted under the feigned weapon
method involves either the use of a toy gun or a finger or other object hidden in a
bag or under a coat to simulate the appearance of a weapon together with
threatening behavior and statements indicating the existence of a weapon. The
existence of some object, whether actually seen or obscured by clothing or
something such as a paper bag, is objective evidence that a defendant possesses a
dangerous weapon or an article used or fashioned to look like one. Related
threats, whether verbal or gesticulatory, further support the existence of a weapon
or article. [Jolly, 442 Mich. at 469-470 (citations omitted).]
Thus, under Michigan law, the prosecution need not present an actual weapon or an actual object
that could be used as a weapon to satisfy the “armed” element; fingers or a hand obscured by
some item and accompanied by verbal or gesticulatory threats can qualify as an “object.” See Id.
at 469.
In the present case, Moore, Shoulders, and Smith testified that the robber appeared to
have an object in his hand wrapped in a cloth and that, based on the way he was dressed and the
fact that he was waving and pointing it at them and demanding money, they thought it was a
weapon. Thus, while it is undisputed that the robber never said that he had a weapon, the
robber’s appearance, gestures, and demands for the tellers’ money supported the reasonable
conclusion that he had a weapon or an article used or fashioned to make his victims believe that
he had a weapon. Jolly, 442 Mich. at 469-470. In addition, each of the tellers testified that she
was present at the robbery, she complied with the robbery’s demands to surrender the money in
her till, and that she was scared. Viewing the evidence in the light most favorable to the
prosecution, Hoffman, 225 Mich. App. 111, a rational trier of fact could find beyond a reasonable
doubt that the prosecution proved three counts of armed robbery.
3. BANK ROBBERY
MCL 750.531 provides in relevant part that a person is guilty of bank robbery “who, with
intent to commit the crime of larceny . . . shall put in fear any person for the purpose of stealing
from any . . . bank . . . .” Accordingly, the trial court instructed the jury that, in order to establish
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that defendant had committed bank robbery, the prosecution had to prove beyond a reasonable
doubt that defendant put people in fear for the purpose of robbing the bank, and that he intended
to rob the bank. As we have already indicated, the bank tellers testified that a masked robber
entered the bank with what they believed to be a weapon, that they complied with his demand to
give him their money, and that he exited the bank with money from their tills. Viewed in the
light most favorable to the prosecution, Hoffman, 225 Mich. App. at 111, a rational trier of fact
could conclude beyond a reasonable doubt that defendant intended to rob the bank and that he
put people in fear for the purpose of robbing the bank, MCL 750.530. Therefore, the evidence
was sufficient to convict defendant of bank robbery.
B. SUBSTITUTE COUNSEL
Defendant next argues that the trial court committed reversible error by denying his
repeated requests for substitute counsel without investigating the substance of those requests.
Again, we disagree. We review for an abuse of discretion a trial court’s decision regarding
substitution of counsel. See People v Mack, 190 Mich. App. 7, 14; 475 NW2d 830 (1991). “A
trial court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes.” Yost, 278 Mich. App. at 379. Whether the trial court’s denial of a
defendant’s request for new counsel constitutes an abuse of discretion depends on the facts and
circumstances of each case. People v Buie, 298 Mich. App. 50, 67; 825 NW2d 361 (2012).
[T]he basic right to representation by counsel . . . encompasses the right to the
appointment of different counsel when a legitimate difference of opinion develops between a
defendant and his appointed counsel as to a fundamental trial tactic.” People v Charles O
Williams, 386 Mich. 565, 574; 194 NW2d 337 (1972) (quotation marks and citation omitted).
“[W]hen [a] defendant alleges the existence of a dispute leading to a destruction of
communication and a breakdown in the attorney-client relationship, the judge is obligated to
inquire whether such allegations are true.” People v Bass, 88 Mich. App. 793, 802; 279 NW2d
551 (1979). However, as the Court explained in Buie, 298 Mich. App. at 67:
[A] defendant is not entitled to have the attorney of his choice appointed simply
by requesting that the attorney originally appointed be replaced. A defendant is
only entitled to a substitution of appointed counsel when discharge of the first
attorney is for “good cause” and does not disrupt the judicial process. The
circumstances that would justify good cause rest on the individual facts in each
case. [Quotation marks and citations omitted.]
However, even if the trial court does not consider the defendant’s allegations, “a
defendant’s conviction will not be set aside . . . if the record does not show that the lawyer
assigned to represent [the defendant] was in fact inattentive to his [or her] responsibilities.” Id.,
quoting People v Ginther, 390 Mich. 436, 442; 212 NW2d 922 (1973). Furthermore, “[a]
defendant may not purposely break down the attorney-client relationship by refusing to
cooperate with his assigned attorney and then argue that there is good cause for a substitution of
counsel.” People v Meyers (On Remand), 124 Mich. App. 148, 166-167; 335 NW2d 189 (1983).
Defendant analogizes the instant case to People v Wilson, 43 Mich. App. 459; 204 NW2d
269 (1972). In Wilson, the defendant asserted that appointed counsel had not discussed the case
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with him satisfactorily, prepared an adequate defense, or worked for the defendant’s best
interests, and the defendant maintained that he was apprehensive about giving his attorney the
names of his alibi witnesses for fear that defense counsel was working with the prosecution.
People v Wilson, 43 Mich. App. 459, 461; 204 NW2d 269 (1972). Observing that defendant’s
counsel was competent, the trial court denied the motion without considering the merits of the
defendant’s claims. Id. This Court found the trial court’s assurances unresponsive to the
defendant’s assertions about the inadequacy of defense counsel’s performance and the
breakdown in communication, and the record inadequate to determine the truth of defendant’s
claim. Id. at 462. For these reasons, this Court concluded that the trial court had abused its
discretion. Id. at 463.
In our view, the instant case is easily distinguishable from Wilson. Although defendant
raises some of the same accusations against Correll that the Wilson defendant raised against his
defense counsel, and the trial court in the present case repeatedly assured defendant that Correll
was highly competent, the similarities end there. Unlike in Wilson, the record here shows the
extent to which defendant’s complaints against Correll arose from defendant’s persistent, and in
some instances willful, misapprehensions of the law and misrepresentations of the record. For
example, defendant insisted that the district court, and then the trial court, did not have
jurisdiction over his case because the complaint warrant in the discovery packet he received from
the prosecution was unsigned, and that Correll had failed to raise this issue at the preliminary
examination. However, the record shows to the contrary that Correll did raise the issue at
defendant’s request, and that the court’s file contained a properly executed complaint warrant.
Even after the trial court showed defendant the signed copy of the complaint warrant in its file,
defendant continued to insist without any legal or factual basis whatsoever that the “indictment”
was faulty and that, as a result, the court did not have subject matter jurisdiction.
Not only does the record show that defendant’s accusations against Correll were baseless,
it also shows that Correll did not abandon defendant’s case, but continued to work on
defendant’s behalf. Correll attested to a number of visits with defendant prior to and after the
preliminary examination and insisted that he was willing to pursue the factual defense defendant
wanted to assert. The record shows that Correll obtained a court order allowing him to take his
laptop into the jail and show surveillance videos of the bank robbery to defendant. Defendant’s
assertion that Correll played the videos on fast-forward confirms that Correll did visit him and
play the videos. In addition, the record shows that Correll provided defendant with transcripts of
the preliminary examination, and brought him clothes to wear to trial. Throughout the trial,
Correll provided defendant procedural, strategic, and legal advice, most of which defendant
ignored. Thus, although defendant’s allegations against Correll echo the language used by
defendants in Wilson and other Michigan cases where trial courts have abused their discretion by
denying a defendant new court-appointed counsel, the record in this case does not support
defendant’s allegations. Defendant may not purposely break down the attorney-client
relationship by refusing to cooperate with his appointed counsel and leveling unsubstantiated
allegations against him and then assert good cause for a substitute counsel. Meyers (On
Remand), 124 Mich. App. at 166-167. Defendant did not show good cause entitling him to
substitution of counsel; accordingly, the trial court did not abuse its discretion by denying his
repeated motions. Buie, 298 Mich. App. at 67.
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We also find unsupported by the record defendant’s assertion that the trial court did not
sufficiently investigate his allegations before denying his requests. The trial court was aware of
the record and gave Correll and the prosecutor opportunities to respond to defendant’s
allegations. Given the particular nature of defendant’s complaints against Correll, it is not clear
what further investigation defendant presumes to be necessary. Moreover, assuming for the sake
of argument that the trial court’s consideration of defendant’s allegations was inadequate, we
would not overturn defendant’s convictions because the record does not show that Correll was in
fact inattentive to his responsibilities. Id.
C. CONFRONTATION CLAUSE
Next, defendant argues that the trial court violated his constitutional right to confront the
witnesses against him when it allowed Christopher Hill, a security guard on duty at Comerica, to
testify that an employee of a nearby business told him that a person had just jumped the fence
and gotten into a black Dodge Charger or Chevrolet Impala. Once again, we disagree.
“The Confrontation Clause of the Sixth Amendment states: ‘In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ The
Fourteenth Amendment renders the Clause binding on the States.” Michigan v Bryant, 562 U.S.
344, 352; S Ct 1143, 1152; 179 L. Ed. 2d 93 (2011); Const 1963, art 1, § 20. Constitutional
errors, including Confrontation Clause errors, are harmless if “ ‘ “[it is] clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the error.” ’ ”
People v Shepherd, 472 Mich. 343, 347, 348; 697 NW2d 144 (2005), quoting People v Mass, 464
Mich. 615, 640 n; 628 NW2d 540 (2001), quoting Neder v United States, 527 U.S. 1, 19; 119 S. Ct.
1827; 144 L. Ed. 2d 35 (1999). As the United States Supreme Court has explained,
Whether such an error is harmless in a particular case depends upon a host of
factors, all readily accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case. [People v LaLone, 432 Mich. 103, 131-132; 437 NW2d 611
(1989), quoting Delaware v Van Arsdall, 475 U.S. 673, 684; 106 S. Ct. 1431, 1438;
89 L. Ed. 2d 674 (1986).]
After a thorough examination of the record, we conclude that, even if the trial court
admitted Hill’s testimony in error, the error was harmless beyond a reasonable doubt. Defendant
was apprehended based largely on information supplied by GPS tracking devices concealed in
the stolen money. There is no record evidence that Hill relayed the information he received from
the employee to Comerica’s security center, or that it was instrumental in law enforcement’s
apprehension of defendant. Officer Hughley testified that he received no information regarding
the type of vehicle the suspect might have been driving. Given the strength of the prosecution’s
case without Hill’s testimony, the relative insignificance of Hill’s testimony, and the fact that
other evidence corroborated his testimony, we find it “clear beyond a reasonable doubt that a
rational jury would have found defendant guilty absent the error.” Shepherd, 472 Mich. at 348
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(quotation marks and citation omitted). Therefore, any Confrontation Clause error arising from
admission of Hill’s hearsay testimony was harmless beyond a reasonable doubt. Id. at 347.
D. DUE PROCESS
Defendant asserts that he was denied a fair trial when the jury witnessed a deputy place
him in shackles. The prosecution argues that defendant waived this issue when, after being made
aware that some members of the jury may have observed a deputy putting him in a belly chain as
the members were leaving the courtroom for lunch, defendant explicitly indicated his belief that
none of the jurors saw what the deputy did and he was not prejudiced. We agree. The record
shows that Correll drew the trial court’s attention to the incident, and informed defendant that he
could move for a new trial based on the deputy’s action. Defendant’s clear decision not to so
move on grounds that he did not think any jurors saw what happened constitutes a waiver that
extinguished any error, thus leaving nothing for this Court to review. People v Carter, 462 Mich.
206, 215-216; 612 NW2d 144 (2000).
Moreover, even if defendant had not waived the issue, his claim would have failed
because he has not shown prejudice. People v Horn, 279 Mich. App. 31, 37; 755 NW2d 212
(2008) (indicating that where jurors briefly and inadvertently see a defendant in shackles, “there
must still be some showing that the defendant was prejudiced”). “In order to demonstrate
prejudice, a defendant must present evidence of actual and substantial prejudice, not mere
speculation.” People v Woolfolk, 304 Mich. App. 450, 454; 848 NW2d 169 (2014) (emphasis
added). Accordingly, defendant’s speculation that jurors might have scrutinized the credibility
of the evidence more carefully had they not observed the shackling is insufficient to establish the
actual and substantial prejudice necessary to sustain a claim of reversible error base on a
violation of one’s right to due process. Id.
E. ISSUES RAISED IN DEFENDANT’S STANDARD 4 BRIEF3
1. RIGHT TO COUNSEL
Defendant argues that the trial court committed reversible, structural error by violating
his Sixth Amendment right to legal representation. Specifically, defendant contends that he
never waived his right to counsel or asked to represent himself, and that the trial court simply
told defendant that he was going to represent himself, without complying with any of the
requirements of MCR 6.005. Because this issue comes to the Court unpreserved, our review is
for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich. 750 762; 597
NW2d 130 (1999). An error affects substantial rights if it affected the outcome of the
proceedings, and it either resulted in the conviction of an innocent person or seriously affected
the fairness, integrity or public reputation of the proceedings, People v Jones, 468 Mich. 345,
355; 662 NW2d 376 (2003).
3
A “Standard 4” brief refers to a brief filed pro se by an indigent criminal defendant pursuant to
Michigan Supreme Court Administrative Order 2004-6, Standard 4.
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Defendant’s framing of the issues misrepresents the record. As we explained elsewhere
in this decision, when defendant failed to make the showing necessary to obtain substitute
counsel, the trial court gave him the option of cooperating with appointed counsel, representing
himself, or retaining counsel, and gave him time to think about the decision. Although defendant
asserted that his “first choice” was for substitute counsel, he unequivocally indicated to the trial
court that, given the option of Correll’s representation or self-representation, he chose the latter.
Defendant indicated at the July 13, 2015 status conference that he had “fired” his court-
appointed attorney and would handle matters himself. From that point onward, defendant
engaged in a vigorous motion practice, arranged for a psychological evaluation, and asked for
and received the offer of a plea agreement from the prosecution.
In addition, the record shows that defendant made this decision after the trial court fully
and repeatedly informed him of the disadvantages of self-representation, the seriousness of the
charges against him, and the likely sentence should the jury find him guilty as charged. MCR
6.005(D)(1).4 Moreover, the record shows that Correll was available to defendant for
consultation while he was making the decision. MCR 6.005(D)(2). Further, the record does not
support defendant’s implication that he asked Correll to take over his representation during the
course of the trial, but Correll refused and the trial court supported his decision. Defendant did
not ask Correll to resume representing him, he simply asked Correll to cross-exam one of the
witnesses by reading questions that defendant would write. In an exercise of its inherent
authority to control the course of a trial, MCL 768.29, the trial court made clear that defendant
was going to conduct the cross-examination, but told him he could consult with Correll and seek
input if he was unsure how to phrase his questions. This being unsatisfactory to defendant, he
declined to consult with counsel and said he would conduct the cross-examination himself. At
no point did defendant indicate to either Correll or the trial court that he wanted Correll to
resume representation of him.
It is true that defendant maintained that his first choice was not self-representation, but
rather, the appointment of substitute counsel. However, unable to make the showing necessary
to obtain substitute counsel, unwilling to cooperate with appointed counsel, and informed of the
4
MCR 6.005(D) provides in relevant part:
The court may not permit the defendant to make an initial waiver of the right to be
represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison
sentence for the offense, any mandatory minimum sentence required by
law, and the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained
lawyer or, if the defendant is indigent, the opportunity to consult with an
appointed lawyer.
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risks of representing himself, the charges against him, and the potential sentence if the jury found
him guilty on all charges, defendant knowingly, intelligently, and voluntarily elected to represent
himself, and communicated his choice in word and deed. Accordingly, defendant’s claim that
the trial court allowed him to represent himself without complying with MCR 6.005(D) fails.
2. PROSECUTORIAL MISCONDUCT
Defendant alleges several instances of prosecutorial misconduct. Because he did not
preserve any of them with a contemporaneous objection and request for a curative instruction,
People v Bennett, 290 Mich. App. 465, 475; 802 NW2d 627 (2010), our review is limited to
ascertaining whether there was plain error that affected substantial rights, Carines, 460 Mich. at
762.
Defendant alleges that the prosecutor used “suggestive identification” techniques when
he told witnesses that “the robber” was going to represent himself at trial, and he impermissibly
coached witnesses by showing them surveillance video of the bank robbery prior to trial. The
record does not support defendant’s assertion that the prosecution told witnesses “the robber”
was representing himself. To the extent that the prosecutor admittedly prepared witnesses for
trial by telling them that defendant would cross-examine them and by showing them video from
the bank robbery, defendant cites no relevant authority prohibiting either. The prosecution
elicited testimony from each of the bank tellers that they had watched the videos earlier in the
week of the trial. Thus, to the extent that the prosecution’s preparation of the witnesses goes to
the credibility of their testimony, the credibility of witnesses and the weight to give their
testimony is a matter for the trier of fact. See People v Lemmon, 456 Mich. 625, 646; 576 NW2d
129 (1998).
Equally unpersuasive is defendant’s assertion that the prosecutor improperly vouched for
the credibility of witnesses. A prosecutor may argue from the facts in evidence that the jury
should believe a witness, but a prosecutor may not vouch for the credibility of a witness by
suggesting that he or she has some special knowledge that the witness is testifying truthfully.
People v Seals, 285 Mich. App. 1, 22; 776 NW2d 314 (2009). After reviewing the instances
defendant labels as improper vouching, we conclude that the prosecutor was merely arguing
from the facts in evidence, and that at no time did he suggest that he had some special knowledge
that the witnesses were testifying truthfully. See id.
Next, contrary to defendant’s accusation, the prosecutor did not impermissibly give his
own opinion when he reviewed the evidence admitted at trial and stated that he had met his
burden to prove the charges against defendant beyond a reasonable doubt. The prosecutor was
not asking the jury to convict defendant on the basis of the prosecutor’s opinion or knowledge,
see People v Ignofo, 315 Mich. 626, 631-636; 24 NW2d 514 (1946), but on the basis of the
evidence adduced at trial.
Likewise, the prosecutor did not misrepresent facts or argue facts not in evidence when,
in his closing argument, he stressed testimony indicating the tellers’ belief that the bank robber
had a weapon in his hand. While prosecutors may not make statements of fact to the jury that are
unsupported by the evidence, People v Stanaway, 446 Mich. 643, 686; 521 NW2d 557 (1994),
they are free to argue the evidence and all reasonable inferences arising from it as they relate to
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his theory of the case People v Bahoda, 448 Mich. 261, 282; 531 NW2d 659 (1995). Here, the
prosecution argued from facts in evidence and reasonable inferences from those facts. Fairly
stressing evidence unfavorable to defendant does not constitute prosecutorial misconduct. See
People v Fisher, 449 Mich. 441, 452; 537 NW2d 577 (1995).
Finally, the record does not support defendant’s assertion that the prosecutor misled the
jury by incorrectly reciting the elements of armed robbery and telling the jury that they had been
met. Even if the prosecutor had misstated the law—which he did not—any error was corrected
by the trial court’s proper statement of the elements and instruction to the jurors that it was their
duty to follow the law as given by the trial court. We presume that jurors follow the trial court’s
instructions. People v Graves, 458 Mich. 476, 486; 581 NW2d 229 (1998). Having thus found
no instances of prosecutorial misconduct, defendant’s claim that the cumulative effect of the
prosecutor’s errors undermined the presumption of innocence necessarily fails.
3. JUDICIAL BIAS
Defendant next contends that the trial court judge’s praise of defense counsel’s abilities
demonstrated extrajudicial bias requiring remand for a new trial before a different judge. “A trial
judge is presumed unbiased, Mitchell v Mitchell, 296 Mich. App. 513, 523; 823 NW2d 153
(2012), and to prevail on his assertion to the contrary, defendant must prove that the judge
“harbors actual bias or prejudice for or against a party or attorney that is both personal and
extrajudicial.” MCR 2.003(B)(1); Van Buren Twp v Garter Belt Inc, 258 Mich. App. 594, 598;
673 NW2d 111 (2003) (2004). Defendant fails to meet this burden. The record indicates that the
trial judge based her opinion of Correll on Correll’s skill as an attorney and her first-hand
observation of his advocacy in her courtroom. Further, as already discussed, defendant never
established any of his allegations that Correll was not providing him with effective assistance.
On the record before this Court, the trial judge’s denial of defendant’s motions for a new court-
appointed attorney does not establish bias or prejudice, not to mention bias or prejudice that is
personal and extrajudicial, as is required for disqualification. In re Contempt of Henry, 282 Mich
App 656, 680; 765 NW2d 44 (2009) (noting that the mere fact that the judge ruled against a
litigant is not sufficient to require disqualification).5
4. PROBABLE CAUSE
Defendant next contends that, because Officer Huguley did not have probable cause to
stop his vehicle or arrest him, the trial court should have suppressed the evidence retrieved from
his vehicle as being the product of an unconstitutional seizure. We disagree. This Court reviews
a trial court’s factual findings in a suppression hearing for clear error and it will affirm those
facts unless it is “left with a definite and firm conviction that a mistake was made.” People v
5
Defendant also asserts that the trial judge attempted to “manipulate the jury” into returning
guilty verdicts. However, defendant’s standard 4 brief provides no explanation or argument in
support of this allegation. Accordingly, we consider the issue abandoned. People v Harris, 261
Mich. App. 44, 50; 680 NW2d 17 (2004) (“An appellant’s failure to properly address the merits of
his assertion of error constitutes abandonment of the issue.”).
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Simmons, 316 Mich. App. 322, 325; 894 NW2d 86 (2016) (quotation marks and citation omitted).
This Court reviews de novo the trial court’s ultimate ruling on a motion to suppress. Id.
Stopping a vehicle and detaining the occupant constitutes a seizure under the Fourth
Amendment. Id. at 326. “A traffic stop is justified if the officer has an articulable and
reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of
law. Id. This includes, but is not limited to, a violation of a traffic law. Id. Further, “[t]he
determination of whether a traffic stop is reasonable must necessarily take into account the
evolving circumstances with which the officer is faced.” Id. (quotation marks and citation
omitted). “Probable cause to arrest exists where the facts and circumstances within an officer’s
knowledge and of which he has reasonably trustworthy information are sufficient in themselves
to warrant a man of reasonable caution in the belief that an offense has been or is being
committed.” People v Cohen, 294 Mich. App. 70, 75; 816 NW2d 474 (2011) (quotation marks
and citation omitted).
Officer Huguley’s testimony that he decided to execute a traffic stop of defendant’s
Charger based on information received from the GPS trackers and reports that police were
looking for a lone suspect demonstrated an “articulable and reasonable suspicion” that the
Charger and its occupant were subject to seizure for a violation of the law. Simmons, 316 Mich
App at 36. In addition, Officer Medici observed evidence associated with the robbery on the
passenger seat of the Charger. These facts and circumstances, known to Huguley, were
“sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed.” Cohen, 294 Mich. App. at 75 (quotation marks and citation
omitted). The record shows that Huguley had an articulable and reasonable suspicion that
defendant had violated the law and, therefore, was subject to seizure, and probable cause existed
to arrest defendant on suspicion of having committed the bank robbery. Accordingly, we
conclude that the trial court’s denial of defendant’s motion to suppress was not error.
5. JURISDICTION
Finally, defendant argues that the trial court should have dismissed the charges against
him based on the prosecutor’s failure to sign the complaint warrant in defendant’s discovery
packet. Both the district court and the circuit court confirmed that police arrested defendant
pursuant to a complaint warrant properly signed and dated by a magistrate and the prosecuting
attorney; the trial court even showed defendant the document in the court’s file. Thus,
defendant’s implication that he was arrested pursuant to an invalid warrant finds no support in
the record.6
Because the remainder of the errors defendant alleges are wholly without merit, we
decline to address them. Defendant has failed to establish errors, and absent the establishment of
6
Defendant has abandoned on appeal his claim that there is no enacting clause for the law cited
against him as he provides no specific argument related to that issue. People v Eisen, 296 Mich
App 326, 331-332; 820 NW2d 229 (2012).
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errors, we find no cumulative effect of any errors meriting reversal. People v Dobek, 274 Mich
App 58, 106; 732 NW2d 546 (2007).
Affirmed.
/s/ Jane M. Beckering
/s/ Colleen A. O’Brien
/s/ Thomas C. Cameron
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