Opinion
352217
09-23-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KEVIN THOMAS MERKEL, Defendant-Appellant.
UNPUBLISHED
Grand Traverse Circuit Court LC No. 19-013292-FC
Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.PER CURIAM
Defendant was convicted after a jury trial of operating a motor vehicle while intoxicated, third offense, MCL 257.625(1); MCL 257.625(9)(c). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 14 to 60 months in prison. Defendant appeals by right, raising issues of prosecutorial misconduct, inadmissible other-acts evidence, Miranda violations, ineffective assistance of counsel, juror bias, and a coerced jury verdict. These issues are raised both through his appellate counsel and through his Standard 4 brief, filed under Supreme Court Administrative Order 2004-6, Standard 4. We affirm.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
I. FACTS
Late in the evening on June 24, 2019, defendant drove a car registered to his mother to a bar where he drank one beer and a shot of liquor. According to the bartender, defendant was acting oddly, and one bar patron testified that defendant appeared intoxicated. Defendant eventually left the bar. Video from a security camera outside the bar showed that defendant got into his mother's car and drove away. Nearby road construction blocked part of the road, however, and when defendant attempted to drive through the construction zone the car became stuck. Defendant left the vehicle and returned to the bar, asking for assistance with the car. One of the bar patrons contacted the police.
When the police arrived, they questioned defendant about the car. Defendant denied knowing anything about the car and, according to police, showed signs of intoxication. Police determined that the car belonged to defendant's mother. Defendant was eventually arrested for operating a vehicle while intoxicated, and a blood test showed that defendant's blood alcohol content was 0.174 grams of alcohol per 100 milliliters of blood.
At trial, defendant admitted that initially he lied to police about his involvement with the car. He testified that he went to the bar, consumed alcohol, left the bar, then unsuccessfully attempted to drive the car through the construction area. He testified, however, that he was not intoxicated when he drove the car but instead drank a half-pint of vodka after getting the car stuck. He testified that he had purchased the vodka at an earlier date, had kept it in the car, and drank it after the car was stuck as a response to the stress of the situation. Defendant explained that he is diabetic, suffers from various mental health issues, and has trouble coping with stressful situations.
At the conclusion of the evidence and arguments, the jury deliberated for approximately two hours before informing the trial court that they were unable to reach a verdict. The trial court read to the jury the standard deadlocked-jury instruction, M Crim JI 3.12. Thereafter, the jury sent a note to the trial court asking various questions about the evidence. The jury then informed the trial court that "this group will never reach a unanimous verdict in this case." Because the jury had deliberated for approximately three hours, the trial court and parties agreed that the jury should go home for the night and continue deliberations the next morning. Before sending the jury home, the trial court spoke to the jurors about the continued deliberations. The next morning, the jury requested to read defendant's testimony concerning how much alcohol he drank after the car became stuck. After the trial court provided the requested testimony, the jury deliberated for approximately two more hours before reaching a verdict of guilty. Defendant now appeals.
II. ANALYSIS
A. POST-MIRANDA SILENCE
Defendant contends that the prosecution violated the Fifth Amendment by referencing at trial his post-arrest and post-Miranda silence. Defendant additionally contends that his trial counsel was ineffective for failing to object. Defendant failed to raise in the trial court his challenges concerning Miranda and the Fifth Amendment, and therefore we review these unpreserved challenges for plain error affecting defendant's substantial rights. People v Carines, 460 Mich. 750, 764; 597 N.W.2d 130 (1999). To affect substantial rights, the error must be prejudicial, meaning that it affected the outcome of the lower court proceedings. Id. at 763.
The Fifth Amendment to the United States Constitution, applied to the states through the Due Process Clause of the Fourteenth Amendment, protects a defendant from being "compelled in any criminal case to be a witness against himself." U.S. Const, Am V; People v Shafier, 483 Mich. 205, 212 n 7; 768 N.W.2d 305 (2009). Accordingly, "every person subject to interrogation while in police custody must be warned, among other things, that the person may choose to remain silent in response to police questioning." Id. at 212, citing Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966). As a general rule, a defendant's silence after arrest may not be used against him or her, and prosecutorial references to a defendant's post-arrest, post-Miranda silence generally violate the defendant's due-process rights. Shafier, 483 Mich. at 212-213. Therefore, "a defendant's post-arrest, post-Miranda silence cannot be used to impeach a defendant's exculpatory testimony . . . or as direct evidence of defendant's guilt in the prosecutor's case-in-chief." Id. at 213-214.
However, neither the Fifth Amendment nor the Michigan Constitution precludes the use of prearrest silence for impeachment purposes. People v Cetlinski, 435 Mich. 742, 757; 460 N.W.2d 534 (1990). Rather, "the use for impeachment purposes of a defendant's prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defendant's constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution." Id. at 746-747. Instead, whether the use of a defendant's prearrest, pre-Miranda statements, and omissions therefrom, is proper in a given case for impeachment purposes is one of relevancy. See People v Hackett, 460 Mich. 202, 214; 596 N.W.2d 107 (1999).
In this case, defendant contends that the prosecutor questioned him regarding his post-Miranda silence. Defendant points out that during cross-examination the prosecutor asked him why he did not initially tell the police the same information he had just told the jury, why he did not initially explain that he had consumed the vodka after driving, and asked "[w]hen was the first time you told somebody what you are now saying is the truth." A review of the record, however, demonstrates that in making these inquiries the prosecutor did not refer to defendant's post-arrest, post-Miranda pre-trial silence. Rather, the prosecutor sought to impeach defendant by questioning him regarding his testimony on direct examination as compared to defendant's prearrest statements, and omissions from those statements, made to police at the time of the incident. That is, when the police first arrived on the night of the incident, defendant told them that he had not been driving the car and that he did not know to whom the car belonged. By contrast, at trial defendant testified that his mother owned the car, that he frequently drove the car, that he was driving the car that night, and that he had driven the car into the construction area where the car had become stuck. The reference to defendant's prior statements, including omissions, given during contact with the police before arrest does not violate defendant's constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. See Cetlinski, 435 Mich. at 746-747. We further conclude that defendant's prearrest statements and omissions in this case were relevant for purposes of impeachment, and therefore admissible. See id. at 760-761.
Similarly, the prosecution's closing remarks commenting on the change in defendant's story from prearrest to trial were not improper. The prosecutor did not reference defendant's post-Miranda silence nor attempt to draw from that silence a conclusion of guilt. We further conclude that defendant's trial counsel was not ineffective for failing to object to the prosecution's questions or closing argument on this basis because counsel had no duty to make a meritless objection. See People v Putman, 309 Mich.App. 240, 245; 870 N.W.2d 593 (2015).
Defendant, through his Standard 4 brief, also contends that his constitutional rights were violated because on the night of the incident police spoke with him for more than two hours before advising him of his Miranda rights. As noted, Miranda requires that "every person subject to interrogation while in police custody must be warned, among other things, that the person may choose to remain silent in response to police questioning." Shafier, 483 Mich. at 212. Miranda warnings are only required for a custodial interrogation, however. People v Elliott, 494 Mich. 292, 302; 833 N.W.2d 284 (2013). "A custodial interrogation is a questioning initiated by law enforcement officers after the accused has been taken into custody or otherwise deprived of his or her freedom of action in any significant way." People v Steele, 292 Mich.App. 308, 316; 806 N.W.2d 753 (2011). Whether a defendant is in police custody is an objective determination based upon the totality of the circumstances, with the ultimate question being whether the accused reasonably could have believed that he or she was not free to leave. Id.
Here, defendant points to no evidence nor provides substantive analysis to demonstrate that he was in custody at the time he conversed with police. An appellant may not merely announce his position and leave it to this Court to ascertain the basis of his claims. People v Bowling, 299 Mich.App. 552, 559-560; 830 N.W.2d 800 (2013). Moreover, the police officer questioning defendant testified that during the initial police contact with defendant, defendant was not handcuffed or detained, and was free to leave. There is no suggestion in the record that the circumstances of defendant's conversation with police would have caused an objective person to believe they were not free to leave. In addition, defendant points to no specific statements made to police that prejudiced him. We therefore conclude that defendant was not interrogated without Miranda warnings and was not prejudiced by his statements made to police.
B. PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecution improperly commented on defendant's guilt by stating in closing argument that defendant was lying and had fabricated his story after hearing the other witnesses testify. Defendant also argues that defense counsel at trial was ineffective for failing to object to the prosecutor's statements. We disagree.
The test for prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Brown, 294 Mich.App. 377, 382; 811 N.W.2d 531 (2011). We consider the propriety of a prosecutor's remarks in the context of all the facts of the case. Id. at 383. Claims of prosecutorial misconduct are preserved by a contemporaneous and specific objection. People v Clark, 330 Mich.App. 392, 433; 948 N.W.2d 604 (2019). If the prejudicial effect of an improper prosecutorial statement could have been alleviated by a timely objection and curative instruction, reversal is not warranted. People v Unger, 278 Mich.App. 210, 235; 749 N.W.2d 272 (2008). Because defendant in this case failed to object contemporaneously and request a curative instruction for the prosecutor's statements, we review this issue for outcome-determinative, plain error. Clark, 330 Mich.App. at 433.
A prosecutor's opening and closing remarks are the appropriate place to state the facts presented during the trial. See People v Ericksen, 288 Mich.App. 192, 199-200; 793 N.W.2d 120 (2010). A prosecutor may argue all reasonable inferences arising from the evidence introduced at trial. People v Dobek, 274 Mich.App. 58, 66; 732 N.W.2d 546 (2007). Although a prosecutor may not vouch for the credibility of a witness, People v Reed, 449 Mich. 375, 398; 535 N.W.2d 496 (1995), the prosecutor is free to argue from the facts that a witness is credible, or that the defendant or another witness is not worthy of belief. People v Howard, 226 Mich.App. 528, 548; 575 N.W.2d 16 (1997).
In this case, defendant argues that the prosecutor made several remarks during closing argument stating that defendant lied during his testimony. Defendant argues that this is tantamount to vouching for a witness. Defendant, however, cites no authority to support this assertion. A review of the prosecution's closing argument in this case demonstrates that the prosecution discussed the evidence and contended that, based upon the evidence, defendant was not worthy of belief. Because the prosecutor was entitled to argue that defendant was not credible, defendant has failed to show plain error. We similarly conclude that defense counsel was not ineffective for failing to raise a meritless challenge. See Putnam, 309 Mich.App. at 245.
We also find no merit in defendant's contention, raised through his Standard 4 brief, that the prosecution purposefully withheld a police report. Defendant argues that the police report would have refuted the suggestion that defendant had been drinking at another bar before arriving at the bar in question. Defendant argues that withholding the police report therefore affected the outcome of the trial. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d 215 (1963). To establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence is favorable to the defendant, and that (3) the evidence is material. People v Chenault, 495 Mich. 142, 150; 845 N.W.2d 731 (2014). In this case, there is no evidence that the prosecution suppressed the police report, nor that defendant or his trial counsel requested the police report. Accordingly, we find no violation of Brady. We also reject defendant's contention that his trial counsel was ineffective for failing to admit the report into evidence for the jury's consideration; police reports generally are inadmissible hearsay, MRE 803(8), see also In re Forfeiture of a Quantity of Marijuana, 291 Mich.App. 243, 254; 805 N.W.2d 217 (2011), and defense counsel thus was not ineffective for failing to move for admission of the report.
C. JURY INSTRUCTION
Defendant next contends that the trial court's remarks to the jury before sending the jury home after the first day of trial were coercive. Because defendant failed to object at trial to the trial court's remarks to the jury, we review the unpreserved contentions of error for plain error affecting substantial rights. People v Walker, 504 Mich. 267, 276; 934 N.W.2d 727 (2019).
Our Supreme Court recently discussed the principles surrounding a deadlocked-jury instruction:
When a jury indicates it cannot reach a unanimous verdict, a trial court may give a supplemental instruction-commonly known as an Allen [v United States, 164 U.S. 492, 501 (1896)] charge-to encourage the jury to continue deliberating. The goal of such an instruction is to encourage further deliberation without coercing a verdict. "If the charge has the effect of forcing a juror to surrender an honest conviction, it is coercive and constitutes reversible error." [Walker, 504 Mich. at 276-277 (citations omitted).]
The standard "deadlocked-jury" instruction has since been incorporated into our model jury instructions, " id. at 277, but is not the only instruction that properly may be given. Id. at 277-278. To determine if a different instruction is proper, the trial court must determine whether, within the context of that case, the instruction could cause a juror to abandon his or her conscientious dissent and defer to the majority solely for the sake of reaching agreement. Id. at 278. An instruction may be erroneous if it is unduly coercive, such as when the trial court implies that the jury must reach a verdict. Id. at 281. An instruction may also be unduly coercive if it requires a jury to deliberate for an unreasonable length of time or for unreasonable intervals. People v Caddell, 332 Mich.App. 27, 39; 955 N.W.2d 488 (2020).
This instruction is contained in M Crim JI 3.12 and provides:
(1) You have returned from deliberations, indicating that you believe you cannot reach a verdict. I am going to ask you to please return to the jury room and resume your deliberations in the hope that after further discussion you will be able to reach a verdict. As you deliberate, please keep in mind the guidelines I gave you earlier.
(2) Remember, it is your duty to consult with your fellow jurors and try to reach agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the verdict must represent the judgment of each of you.
(3) As you deliberate, you should carefully and seriously consider the views of your fellow jurors. Talk things over in a spirit of fairness and frankness.
(4) Naturally, there will be differences of opinion. You should each not only express your opinion but also give the facts and the reasons on which you base it. By reasoning the matter out, jurors can often reach agreement.
(5) If you think it would be helpful, you may submit to the bailiff a written list of the issues that are dividing or confusing you. It will then be submitted to me. I will attempt to clarify or amplify the instructions in order to assist you in your further deliberations.
(6) When you continue your deliberations, do not hesitate to rethink your own views and change your opinion if you decide it was wrong.
(7) However, none of you should give up your honest beliefs about the weight or effect of the evidence only because of what your fellow jurors think or only for the sake of reaching agreement.
In this case, the jury deliberated for approximately two hours before informing the trial court that they were unable to reach a verdict. The trial court read to the jury the standard deadlocked-jury instruction, M Crim JI 3.12. Approximately one hour later, the jury again told the trial court that they were deadlocked. The trial court and parties agreed that the jury should continue deliberations the next morning. Before sending the jury home for the night, the trial court spoke to the jurors about the continued deliberations, giving a modified version of the instruction the trial court previously had read.
Defendant argues that the jury instruction was coercive because it required the jury to deliberate for an unreasonable length of time given the brevity of the evidence and argument at trial, which had concluded in less than two days. When a jury has advised the trial court that they are deadlocked, the trial court may require the jury to continue deliberating, but is not permitted to require the jury to deliberate for an unreasonable length of time. Caddell, 332 Mich.App. at 39. In this case, at the time the jury concluded that it was deadlocked, they had been deliberating approximately three hours. The record indicates, however, that defense counsel requested that the trial court not declare the jury deadlocked at that time, approving the trial court's decision to require the jury to deliberate further. When a party expressly approves the trial court's action, the party waives any potential challenge to the action, extinguishing any error and leaving nothing for this Court to review. People v Miller, 326 Mich.App. 719, 726; 929 N.W.2d 821 (2019). Consequently, defendant is not entitled to challenge the jury instruction on this basis on appeal.
Defendant also argues, however, that the jury instruction was coercive because the trial court modified the language of the standard jury instruction by also telling the jury that "this case has been going on for some time. There's been a significant amount of investment, both from the plaintiff and defense perspective on it." Defendant argues that this could have been understood by the jury to be an admonishment to hurry to reach a verdict. Interestingly, defendant also argues that this could have been understood by the jury to be a warning that they were going to be required to deliberate for an unreasonable amount of time.
However, a review of the entire instruction and the context in which it was given demonstrates that the instruction was not coercive. The trial court gave the jurors guidance regarding how to continue deliberating and potentially break the deadlock, instructing the jurors that they should listen carefully to each other's positions, but should not give up their individual beliefs. The trial court sent the jury home for the night, and explained to the jury that going home for the night and resuming in the morning might provide the jurors with a fresh perspective. Nothing about this instruction suggests that it coerced the jurors into entering a verdict, considering the entirety of the circumstances. See Walker, 504 Mich. at 282-283. Furthermore, the trial court made these statements shortly after giving the jury the standard deadlocked-jury instruction, and we have no reason to conclude that the trial court's additional statements to the jury did anything to diminish that instruction.
D. OTHER-ACTS EVIDENCE
Defendant contends that the trial court erred by admitting other-acts evidence, warranting reversal of his conviction. Specifically, defendant challenges the testimony of the bartender that while at the bar that evening defendant told him that he "smoke[s] weed and . . . smoke[s] crack." Defendant also contends that his trial counsel's strategy regarding this evidence constituted ineffective assistance of counsel. We disagree.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion; a court abuses its discretion when its decision is "outside the range of principled outcomes." People v Musser, 494 Mich. 337, 348; 835 N.W.2d 319 (2013). Preliminary determinations of law regarding admissibility are reviewed de novo. People v Mardlin, 487 Mich. 609, 614; 790 N.W.2d 607 (2010).
Rule 404(b) prohibits the introduction of evidence "of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." People v Denson, 500 Mich. 385, 397; 902 N.W.2d 306 (2017), quoting MRE 404(b)(1). To be admissible under MRE 404(b), the prosecutor must offer the evidence for a purpose other than to prove a character to conduct or propensity theory. People v Yost, 278 Mich.App. 341, 402; 749 N.W.2d 753 (2008). Here, the prosecution's theory of the case was that defendant became intoxicated with alcohol, not drugs, then drove his vehicle under the influence of alcohol. Testimony concerning defendant's admission that he smokes "weed" and "crack" had no bearing on the prosecution's theory of the case. Moreover, the witness gave this testimony in the context of describing defendant's odd behavior while at the bar. After giving the challenged testimony, the witness somewhat humorously testified, "So I thought that was, like, immediately odd. Like, okay, we're learning a lot about each other."
Furthermore, defendant said nothing about whether he had ever driven a vehicle after smoking weed or crack, which would be evidence that defendant had a character consistent with driving while intoxicated. The witness did not offer the testimony to demonstrate defendant's character for driving while intoxicated, but merely to support his belief that the defendant was behaving oddly by divulging such information, and therefore might have been intoxicated. Because this was not "character to conduct" evidence, (i.e., it did not suggest that defendant has a character consistent with driving while intoxicated), it was not inadmissible under MRE 404(b). See Denson, 500 Mich. at 398 (a proper non-character purpose for the testimony existed).
Additionally, this was a passing reference that was nonresponsive to the prosecutor's question, which simply asked what defendant was doing while at the bar. The prosecution did not further explore the testimony or make any other reference to it. Because we conclude that this testimony was not inadmissible character evidence under Rule 404(b), defendant's counsel was not ineffective for failing to renew his objection or request a mistrial. Counsel performed effectively in preserving the issue for appeal.
Defendant also claims that the relevance of this testimony was outweighed by the danger of unfair prejudice. Given the strength of the evidence of defendant's guilt, we cannot conclude that the witness's brief, non-responsive testimony concerning defendant's admission of drug use was outcome determinative in this drunk driving case.
E. JUROR BIAS
In his Standard 4 brief, defendant contends that his conviction should be reversed because a juror was biased. Defendant argues that the juror failed to disclose during voir dire that one of the police officers testifying at the trial was married to a family friend of the juror, and that the juror's mother works for a sheriff's department. Because defendant failed to raise this challenge before the trial court, we review this issue for plain error affecting substantial rights. Carines, 460 Mich. at 764. Defendant also contends that defense counsel at trial was ineffective for failing to move for the removal of the juror. Because defendant failed to move for a new trial or evidentiary hearing before the trial court concerning ineffective assistance of counsel, these arguments on appeal are unpreserved, and our review is limited to errors apparent from the record. People v Head, 323 Mich.App. 526, 539; 917 N.W.2d 752 (2018).
A defendant in a criminal trial has the right to tried by an impartial jury. People v Bryant, 491 Mich. 575, 595; 822 N.W.2d 124 (2012). The trial court ensures that the jury is impartial by conducting voir dire and removing biased jurors before the jury is impaneled. People v Tyburski, 445 Mich. 606, 618; 518 N.W.2d 441 (1994) (opinion by Mallet, J.). Jurors are presumed to be competent and impartial. People v Johnson, 245 Mich.App. 243, 256; 631 N.W.2d 1 (2001).
Although jurors have a duty to reveal relevant information, depending on the facts of a case a "juror's promise to keep the matters of her personal life separate from defendant's case [can be] sufficient to protect defendant's right to a fair trial." Id. at 256. A defendant who maintains that voir dire did not result in an impartial jury has the burden to show that a particular juror was not impartial or that the juror's impartiality was in reasonable doubt. People v Haynes, ___ Mich. App___, ___;___ N.W.2d (2021) (Docket No. 350125); slip op at 6.
In this case, after voir dire and jury selection one of the officers informed the trial court that his wife was a family friend of the one of the jurors. Additionally, the juror's mother worked for a sheriff's department, though not the police department involved in defendant's arrest. The juror explained that she did not mention this information during voir dire because she did not initially recognize the name of the police officer, had not seen the officer in many years, and did not actively socialize with him. Defendant provides no evidence that the juror concealed the information and offers nothing to refute the juror's explanation. The juror was asked if she could remain impartial, and she replied that she could. Given the juror's reasonable explanation and absence of evidence showing otherwise, defendant did not meet the burden to show that the impartiality of the juror was in reasonable doubt. Haynes, ___ Mich.App. at ____; slip op at 8. Accordingly, defendant's trial counsel was not ineffective for failing to move for the removal of the juror. See Putnam, 309 Mich.App. at 245.
Affirmed.
Tukel, P.J., did not participate.