Opinion
363361
09-19-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DAVID LAWRENCE BARNES, Defendant-Appellant.
UNPUBLISHED
Kalamazoo Circuit Court LC No. 2020-000466-FC
Before: N. P. HOOD, P.J., AND O'BRIEN and REDFORD, JJ.
PER CURIAM.
Defendant-appellant, David Lawrence Barnes, appeals as of right his jury trial convictions of second-degree murder, MCL 750.317; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to serve 216 to 324 months' imprisonment for the second-degree murder conviction and 2 years' imprisonment for the felony-firearm conviction.
On appeal, appellate counsel argues on behalf of defendant that defense counsel denied defendant the effective assistance of counsel on several grounds, including that defense counsel failed to present an expert on gun violence and trauma, failed to request an evaluation to determine whether defendant's post-traumatic stress disorder (PTSD) contributed to his actions or mitigated his culpability, and failed to object to a detective's vouching testimony. Second, appellate counsel argues that the prosecutor committed misconduct by asking the trial court to consider defendant's assertion of self-defense as evidence that he lacked remorse. Appellate counsel contends that, because the trial court did not disavow this request, defendant is entitled to resentencing. In a brief filed under Administrative Order 2004-6, Standard 4, defendant argues that he was denied effective assistance of counsel for several reasons. He further asserts that the prosecutor engaged in misconduct, the jury verdict form was defective, and that the jury was not drawn from a fair crosssection of the community. For the reasons stated in this opinion, we affirm defendant's convictions and sentence.
I. FACTUAL AND PROCEDURAL HISTORY
This appeal arises out of the March 8, 2020, shooting death of Elijah Roberson at the Canterbury Apartments complex in Kalamazoo, Michigan. Defendant and the victim did not know each other. Rather, the shooting was the result of an altercation involving the victim's children and defendant's children. Defendant believed that the victim had assaulted his minor daughter. Defendant got into an altercation in the apartment complex's parking lot with the victim and his fiancee. Defendant argued that he shot the victim in self-defense because he saw the victim attempt to pull out a gun from under his sweatshirt. Defendant shot the victim seven times-one of the victim's gunshot wounds was to the back of his head. The victim's fiancee denied that the victim was armed during the altercation. She stated that defendant chased the victim while shooting him in the back. She testified that when the victim fell facedown between two cars in the parking lot, defendant stood over him and shot him in the head.
After the shooting, defendant ran away from the scene. He later turned himself into police and was arrested. After a four-day trial, defendant was convicted of second-degree murder and felony-firearm. Defendant was sentenced as explained earlier. He then moved for postjudgment relief on the basis of ineffective assistance of counsel and prosecutorial misconduct at sentencing. The trial court held a hearing to allow the parties to present their respective arguments. The trial court then denied defendant's motion in a written opinion and order.
This appeal followed.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that defense counsel was ineffective for failing to present the testimony of an expert witness in gun violence and culture in Kalamazoo, failing to investigate defendant's PTSD diagnosis, and failing to object to vouching statements by a detective. We disagree that defense counsel provided ineffective assistance of counsel regarding any of the three asserted grounds because defendant failed to present evidence showing that a trauma and gun violence expert existed and would help his defense, improper witness credibility testimony was not admitted at trial, and evidence of PTSD was not admissible as mitigating evidence at trial.
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's "factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo." People v Matuszak, 263 Mich.App. 42, 48; 687 N.W.2d 342 (2004). However, because the trial court denied defendant's postjudgment motion for a new trial or an evidentiary hearing, this Court's review of his ineffective-assistance-of-counsel claim is limited to errors apparent on the record. See People v Payne, 285 Mich.App. 181, 188; 774 N.W.2d 714 (2009).
To prevail on a claim of ineffective assistance of counsel, a defendant must establish that "(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different." People v Sabin (On Second Remand), 242 Mich.App. 656, 659; 620 N.W.2d 19 (2000). "A defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy, and he must show that, but for counsel's error, the outcome of the trial would have been different." Id. See also Strickland v Washington, 466 U.S. 668, 694; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). "Defendant also bears the burden of establishing the factual predicate for his claim." People v Putman, 309 Mich.App. 240, 248; 870 N.W.2d 593 (2015) (quotation marks and citation omitted).
1. EXPERT WITNESS
Defendant asserts that defense counsel was ineffective for failing to present an expert witness in gun violence in Kalamazoo who would be helpful for jurors to understand that someone living in Kalamazoo would reasonably believe his or her life was at risk during confrontations. Defendant further asserts that defense counsel was ineffective for instead presenting the testimony of an expert who undermined defendant's self-defense claim.
"Decisions regarding whether to call or question a witness are presumed to be matters of trial strategy." Id. Defendant has failed to present any evidence showing that such an expert exists or that such an expert could provide testimony which would have been helpful to his defense. See id. Moreover, defendant's assertion that such an expert would have been helpful for jurors to understand that someone living in Kalamazoo would reasonably believe that his life was at risk during confrontations was contradicted by defendant's own trial testimony. He did not testify that he felt unsafe in Kalamazoo. In fact, defendant stated that he felt safe in Kalamazoo as long as he avoided the north and east sides of the city. He explained that when he originally rented the apartment for his estranged wife and their children, he thought that Canterbury was a "good place" because it was located on the west side of town. However, he also said that he was on the "fence" concerning the safety of the apartment complex because his wife told him about some things that had happened: there was testimony that a shooting occurred at the apartment complex six days before this incident occurred. Nevertheless, defendant told Detective Sergeant Michael Boisonault during his interview that, in his experience, people in Kalamazoo were more likely to brandish a gun and shoot it in the air to scare others, while people in Chicago-where defendant grew up- pulled a gun and shot the other person. Defendant provided no indication that he was afraid to go to the Canterbury Apartments-he stated that this was the second time that he had been there at night. He did not testify that he was afraid when he first encountered the victim's fiancee in the parking lot. Rather, he stated that he became afraid for the lives of himself and his children when he saw what he believed was the victim attempting to pull out a gun.
Defendant has not shown that defense counsel's performance was deficient for failing to present testimony from an expert in gun violence and culture in Kalamazoo. Additionally, considering defendant's own testimony at trial, defendant has not shown that the outcome of his trial would have been different absent this failure. Accordingly, defendant's claim of ineffective assistance of counsel fails on this ground. See Sabin (On Second Remand), 242 Mich.App. at 659.
Defendant further asserts that defense counsel provided ineffective assistance by presenting the testimony of an expert who was unhelpful to his claim of self-defense. Interestingly, defendant's essential argument is not that defense counsel failed to present the testimony of an expert, but that counsel was ineffective for presenting the wrong expert. The expert testified that using a gun should be a last resort, that it was unreasonable to shoot at someone running away, and that a person should not continue shooting until a person falls down. Although this testimony may appear to be unhelpful to defendant's case, defendant testified that he did not pull his gun until he saw the victim trying to pull his, and he denied chasing the victim while shooting at him. He stated that as soon as the victim fell and was no longer a threat, he turned and ran. He denied standing over the victim and shooting him in the head. As a result, defendant essentially denied doing the actions that the expert condemned.
On the other hand, the expert also provided testimony that was helpful to defendant. He testified that a person did not have to wait for the other person to draw a gun before drawing his or her gun. He explained that he taught his students to shoot at the other person's center mass. He further stated that one should fire until the threat was eliminated, which depended on the circumstances. He opined that a person could be moving away and still pull a gun and shoot. He also stated that the fact that an individual was shot in the back did not definitely establish that the person was not an imminent threat to the person who shot them. He explained that the person could be turning by the time the gun was drawn and fired, meaning the person may have wounds to his or her side and back. He testified that it could take a moment to recognize that the threat had been eliminated and to stop shooting.
To the extent that defendant further argues that defense counsel should have requested a special jury instruction as to the reasonableness standard, he does not provide any additional information such as a proposed instruction or explain how such an instruction would have been helpful to the defense at trial. "Defendant may not leave it to this Court to search for a factual basis to sustain or reject his position." People v Traylor, 245 Mich.App. 460, 464; 628 N.W.2d 120 (2001) (quotation marks and citation omitted).
Given the evidence that was presented at trial, including defendant's own testimony, he has failed to establish that defense counsel was deficient for calling an expert in self-defense and firearms. Moreover, defendant has not shown that the outcome of his trial would have been different absent defense counsel's alleged error. Therefore, defendant has not shown that he was denied the effective assistance of counsel at trial. See Sabin (On Second Remand), 242 Mich.App. at 659.
2. PTSD
Defendant also asserts that defense counsel was ineffective for failing to investigate defendant's PTSD diagnosis.
There was no evidence presented at trial concerning PTSD. The first mention of the diagnosis was in the presentence investigation report (PSIR), which stated: "The Defendant states a family doctor diagnosed him with anxiety in 2011 and a family counselor diagnosed him with PTSD in 2017. He states he is currently taking Buspar for these conditions." Defendant has not presented any further evidence of a PTSD diagnosis or how that diagnosis affected his actions on the evening in question. It is also unclear whether defense counsel was even aware that defendant allegedly had been diagnosed with PTSD at the time of trial. Defendant testified that he did not see combat while he was in the military, and he did not provide any other testimony concerning a traumatic event related or unrelated to his military service. As a result, it is unclear from the information available how the diagnosis originated or its effect on defendant. See Putman, 309 Mich.App. at 248.
Regardless, MCL 768.21a(1) provides, in pertinent part, that "[m]ental illness or having an intellectual disability does not otherwise constitute a defense of legal insanity." In People v Carpenter, 464 Mich. 223, 237; 627 N.W.2d 276 (2001), the Michigan Supreme Court held that "evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal responsibility by negating specific intent." As a result, "the defense of diminished capacity [is] no longer viable...." People v Yost, 278 Mich.App. 341, 354; 749 N.W.2d 753 (2008). The Michigan Supreme Court recently declined to disturb its previous holding in Carpenter. People v Tyson, 511 Mich. 1080; 992 N.W.2d 293 (2023). This Court is required to follow Michigan Supreme Court decisions except when "those decisions have clearly been overruled or superseded ...." People v Anderson, 344 Mich.App. 286, 299; 1 N.W.3d 299 (2022) (quotation marks and citation omitted; ellipsis in original). Carpenter remains the law of Michigan. Therefore, defense counsel did not provide ineffective assistance by failing to present evidence that would have been inadmissible. "Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion." People v Riley, 468 Mich. 135, 142; 659 N.W.2d 611 (2003).
To the extent that defendant asserts that defense counsel failed to present this evidence as mitigation at sentencing, it is difficult to determine whether evidence related to the PTSD diagnosis would have been helpful to defendant with the available information. In any event, the trial court explained that it reviewed the PSIR and all its attachments, meaning that the court would have been aware of the diagnosis. Accordingly, defendant has not shown that failure to present this information at sentencing was the result of deficient performance or that such failure affected the outcome of the proceedings. See Sabin (On Second Remand), 242 Mich.App. at 659.
3. VOUCHING TESTIMONY
Defendant argues that defense counsel was deficient for failing to object to "vouching" testimony provided by Detective Sergeant Boisonault. Specifically, defendant challenges Detective Sergeant Boisonault's testimony that he did not believe defendant's claim that he was unable to retreat. According to defendant, this testimony showed that Detective Sergeant Boisonault opined that defendant did not act in lawful self-defense.
"It is generally improper for a witness to comment or provide an opinion on the credibility of another witness, because credibility matters are to be determined by the jury." People v Dobek, 274 Mich.App. 58, 71; 732 N.W.2d 546 (2007). According to MRE 701, a lay witness who is not testifying as an expert can offer testimony in the form of an opinion that is "rationally based on the perception of the witness and . . . helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."
The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective January 1, 2024. See ADM File No. 2021-10, 512 Mich. lxiii (2023). We rely on the version of the rule in effect at the time of trial.
The record shows that during cross-examination, defense counsel questioned Detective Sergeant Boisonault extensively about his interview with defendant. Detective Sergeant Boisonault testified that he did not think that it was "necessarily the whole truth" that defendant could not leave the situation. He also testified that, from his perspective, defendant was angry and went to go confront the victim and his fiancee because defendant believed that they assaulted his children. He further stated that he had previously experienced a situation in which a suspect claimed self-defense and he later determined that the claim could not be true.
However, Detective Sergeant Boisonault did not testify that he did not believe that defendant acted in self-defense or that defendant was lying when defendant said that he acted in self-defense. The challenged testimony was in response to questions by defense counsel concerning Detective Sergeant Boisonault's state-of-mind during the interview. During this questioning, defense counsel acknowledged Detective Sergeant Boisonault's opinion that defendant did not act in self-defense, but clarified that his opinion was not important. Review of the transcript suggests that defense counsel attempted to show that Detective Sergeant Boisonault had already made his own conclusion concerning the shooting before interviewing defendant and that the questions asked during the police interview were meant to undermine defendant's explanation and cause him to make inculpatory statements. See People v Petri, 279 Mich.App. 407, 412; 760 N.W.2d 882 (2008) (holding that "[a] failed strategy does not constitute deficient performance").
Further, even if Detective Sergeant Boisonault concluded that defendant had the ability to leave, that conclusion would not necessarily defeat defendant's self-defense claim. MCL 780.972-the statute that governs self-defense-provides the following:
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.
(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.
(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual. [Emphasis added.]
At defendant's trial, the trial court properly informed the jurors that defendant had no duty to retreat if he honestly and reasonably believed that the use of deadly force was necessary to prevent imminent death or imminent great bodily harm to himself or others. The trial court also instructed jurors that the testimony of police officers was "to be judged by the same standards you use to evaluate the testimony of any other witness." "Jurors are presumed to follow instructions ...." Petri, 279 Mich.App. at 414. See also Weeks v Angelone, 528 U.S. 225, 234; 120 S.Ct. 727; 145 L.Ed.2d 727 (2000).
Considering the context of the cross-examination and Detective Sergeant Boisonault's testimony, defendant has not shown that defense counsel's performance fell below an objective standard of reasonableness. See Putman, 309 Mich.App. at 248 (explaining that decisions concerning how to question witnesses are presumed to be matters of trial strategy). In addition, because the jury was properly instructed as to the elements of self-defense and was given the opportunity to determine the credibility of defendant and Detective Sergeant Boisonault, defendant has not established that any alleged error on the part of defense counsel affected the outcome of his trial. See Petri, 279 Mich.App. at 414 (stating that jury instructions "are presumed to cure most errors"). Therefore, defendant has not shown that he was denied the effective assistance of counsel.
4. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL RAISED IN THE STANDARD 4 BRIEF
In his Standard 4 brief, defendant argues that defense counsel provided ineffective assistance of counsel by allowing alternative counsel to represent defendant at trial, failing to conduct a reasonable investigation before trial, failing to interview potentially favorable witnesses, and failing to familiarize herself with laws applicable to the case. Addressing each in turn, we disagree.
We note that, in his Standard 4 brief, defendant contends analysis of these claims do not fall under the Strickland test, but instead follows a separate analysis under United States v Cronic, 466 U.S. 648; 104 S.Ct. 2039; 80 L.Ed.2d 657 (1984), which held that there are some "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id. at 658. Those circumstances include denial of counsel at a critical stage of the proceedings, counsel's complete failure to meaningfully challenge the prosecution's case, and where counsel is called upon to render assistance under circumstances where even competent counsel likely could not. Id. at 659-660. Defendant's argument is premised on the second Cronic category; however, defendant cites specific points in the proceeding to indicate that trial counsel's performance was ineffective. See People v Frazier, 478 Mich. 231, 244; 733 N.W.2d 713 (2007) ("The Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding."). This case does not qualify for consideration under any of the three situations listed in Cronic. Accordingly, review under Strickland is appropriate.
First, defendant asserts that defense counsel was deficient for substituting the services of attorney John J. Anderegg for her own services without defendant's consent. Defendant was represented by both Anderegg and Kiana C. Garrity at trial. The record reflects that both attorneys were with the firm Kiana Carolyn PLC. Anderegg questioned a majority of the witnesses; however, Garrity questioned Detective Sergeant Michael Boisonault, defendant, and the defense character witnesses. Anderegg presented the defense's opening and closing arguments.
Defendant does not explain how this substitution of Anderegg's services denied him the effective assistance of counsel. Defendant argues that, as a former prosecutor, Anderegg "would presumably possess the knowledge where to under-cut the proceedings by not presenting an adequate defense that would allow the Government's case to essentially capitalize off the failure(s) of the defense." However, defendant provides no factual support for such an assertion. "Defendant may not leave it to this Court to search for a factual basis to sustain or reject his position." Traylor, 245 Mich.App. at 464. Moreover, Garrity was present for defendant's entire trial. As a result, even if Anderegg questioned witnesses and presented opening and closing arguments, Garrity was still present providing her services at defendant's trial. Defendant further does not show that Garrity would have done anything differently concerning the questioning of witnesses or the presentation of opening and closing arguments. See id.
Second, defendant asserts that he was denied the effective assistance of counsel because defense counsel failed to conduct a reasonable investigation. Defendant contends that the prosecutor deliberately misled the jury by claiming that defendant did not start shooting until everyone had turned and started walking away; however, the prosecutor's statement-even if it was made in error-was not the result of defense counsel's failure to investigate. Rather, the prosecutor's statement was supported by the testimony of Patrice Fuller, who was the fiancee of the victim, Elijah Roberson. "A prosecutor may not make a factual statement to the jury that is not supported by the evidence, but he or she is free to argue the evidence and all reasonable inferences arising from it as they relate to his or her theory of the case." Dobek, 274 Mich.App. at 66 (citations omitted).
Defendant also alleges that defense counsel failed to investigate and present evidence that the victim had a history of aggressive behavior. Defendant refers to the murder conviction of Rendae Diatez West, who was convicted of second-degree murder, assault with intent to do great bodily harm less than murder, and two counts of felony-firearm. People v West, unpublished opinion of the Court of Appeals, issued September 15, 2009 (Docket No. 284743), p 1. The facts of that case state that a man named Elijah Roberson was present when West shot and killed the victim in that case. Id. at 2. However, even if that case involved the same Elijah Roberson, West was convicted in 2008-12 years before the shooting in this case occurred. The victim was not the shooter in that case.
Although an unpublished opinion has no precedential value, this Court may follow the opinion if it finds the reasoning persuasive. MCR 7.215(C)(1); People v Green, 260 Mich.App. 710, 720 n 5; 680 N.W.2d 477 (2004).
Defendant additionally asserts that defense counsel failed to sufficiently challenge Fuller's credibility. However, defense counsel questioned Fuller concerning several domestic-violence situations involving the victim and Fuller. Fuller indicated that the charges were dismissed because she also hit the victim. She also admitted that she lied to the police several times concerning these alleged instances of domestic violence-she would say that the victim hit her when that was not the case. She also admitted that she was a "hothead." She further acknowledged that she was loud during the confrontation with defendant and that she punched and pushed him after he put his hands on her first. This evidence was presented to the jury, and it was up to the jury to determine Fuller's credibility. See Dobek, 274 Mich.App. at 71.
Further, defendant asserts that counsel was deficient for failing to interview potentially favorable witnesses, such as witnesses who were present for the confrontation and shooting in the parking lot. However, defendant does not identify any of these alleged potential witnesses, or explain the testimony that any of the alleged witnesses would provide or how the testimony would have been helpful to his case. See Putman, 309 Mich.App. at 248 (explaining that defendant "bears the burden of establishing the factual predicate for his claim") (quotation marks and citation omitted).
Finally, defendant claims that defense counsel was ineffective for failing to familiarize herself or himself with the applicable laws. Specifically, defendant appears to assert that defense counsel failed to demonstrate that defendant was properly acting within his rights when he traveled to the apartment complex armed with a gun. To the contrary, although defendant was questioned about the location of the gun when he traveled to the complex and when he first encountered Fuller and the victim, the prosecutor did not dispute that defendant was able to carry his firearm. During closing arguments, the prosecutor stated that there was "[n]othing wrong with owning a gun. Nothing wrong with open carrying. Not at all."
Defendant also asserts that defense counsel failed to explain to the jury that he had no duty to retreat. This assertion is without merit. In fact, defense counsel specifically told the jury that defendant had no duty to retreat. Additionally, as previously discussed in this opinion, the trial court properly instructed the jury as to this issue.
As a result, defendant has not established that defense counsel was deficient for any of the aforementioned reasons. See Sabin (On Second Remand), 242 Mich.App. at 659. In addition, given the evidence presented at trial, defendant has failed to show that absent defense counsel's alleged errors, the outcome of his trial would have been different. See id. Accordingly, defendant has not established that he was denied the effective assistance of counsel. See id.
B. PROSECUTORIAL MISCONDUCT
Defendant next argues that the prosecutor committed misconduct at sentencing by asking the trial court to consider defendant's lack of remorse while imposing defendant's sentence. Defendant further argues that, because the trial court failed to disavow this request, he is entitled to resentencing. Because a prosecutor can argue that a defendant lacked remorse, we disagree.
This Court generally reviews claims of prosecutorial misconduct de novo. People v Fyda, 288 Mich.App. 446, 460; 793 N.W.2d 712 (2010). This Court reviews "claims of prosecutorial misconduct case by case, examining the remarks in context, to determine whether the defendant received a fair and impartial trial." People v Watson, 245 Mich.App. 572, 586; 629 N.W.2d 411 (2001). See also Darden v Wainwright, 477 U.S. 168, 181; 106 S.Ct. 2464; 91 L.Ed.2d 144 (1986). This Court reviews a trial court's sentencing decision for an abuse of discretion. People v Cain, 238 Mich.App. 95, 130; 605 N.W.2d 28 (1999). A sentencing court abuses its discretion by violating the "principle of proportionality," which requires a sentence to be "proportionate to the seriousness of the circumstances surrounding the offense and the offender." People v Steanhouse, 500 Mich. 453, 460; 902 N.W.2d 327 (2017) (quotation marks and citation omitted).
A prosecutor has a unique role in a criminal trial. "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules." People v Evans, 335 Mich.App. 76, 89; 966 N.W.2d 402 (2020) (quotation marks and citation omitted). In any event, "[a] prosecutor is afforded great latitude regarding his or her arguments and conduct at trial." Fyda, 288 Mich.App. at 461. A prosecutor is generally "free to argue the evidence and all reasonable inferences from the evidence as it relate[d] to" his or her "theory of the case." People v Unger, 278 Mich.App. 210, 236; 749 N.W.2d 272 (2008)
"A sentencing court may not base a sentence, even in part, on a defendant's failure to admit guilt, but a lack of remorse can be considered at sentencing." People v Carlson, 332 Mich.App. 663, 675; 958 N.W.2d 278 (2020) (citations omitted). We focus on three factors to determine whether defendant's sentence was improperly influenced by a failure to admit guilt: "(1) the defendant's maintenance of innocence after conviction; (2) the judge's attempt to get the defendant to admit guilt; and (3) the appearance that had the defendant affirmatively admitted guilt, his sentence would not have been so severe." Id. (quotation marks and citation omitted). At defendant's sentencing hearing, the prosecutor made the following statement:
This is a case where the defendant not only shot and killed someone. He shot and killed him in front of all four of his children within feet of a 9-year-old. In front of his parents, in front of his fiance [sic]. He chased him down and shot him in the back and killed him.
And, I would just say that we have no indication from his man that he is remorseful at all. In fact, he testified on two occasions that he would do it exactly the same way again.
This argument was made on the basis of defendant's testimony at trial, that if faced with the same chaotic situation, he would have done the same thing because he had to protect himself and his children.
The prosecutor did not make any improper statements because the prosecutor argued that defendant failed to show remorse, which is an appropriate consideration at sentencing. See id. In addition, the prosecutor appeared to be arguing the prosecutor's theory of the case-that defendant chased the victim while shooting him in the back and killed him in front of his fiancee and children. See Unger, 278 Mich.App. at 236.
Nonetheless, even if the prosecutor's remark was an improper request on the basis of defendant's failure to admit guilt, the trial court affirmatively acknowledged defendant's right to maintain his innocence and decision not to make any statement because he planned to appeal. The trial court ultimately sentenced defendant to 216 to 324 months' imprisonment. Although defendant's minimum sentence was closer to the upper end of the guidelines, it was still within the guideline assessment of 144 to 240 months. Moreover, it was 24 months less than the recommendation from the Michigan Department of Corrections, which requested a sentence of 20 years' (240 months) to life. Accordingly, there is no evidence that the court attempted to get defendant to admit guilt or that the sentence would have been less severe if defendant had admitted guilt. See Carlson, 332 Mich.App. at 675. Therefore, defendant is not entitled to resentencing.
Defendant does not claim that his within-guideline sentence was unreasonable or disproportional.
In his Standard 4 brief, defendant argues that the prosecutor engaged in prosecutorial misconduct by unfairly attacking defendant's credibility and prejudicing the jury against him. Because the prosecutor's statements related to defendant's own testimony and any prejudice was cured by a jury instruction, we disagree.
Because defendant failed to preserve this prosecutorial misconduct claim, we review for plain error affecting substantial rights. Fyda, 288 Mich.App. at 460-461. Plain error requires that: "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
Defendant asserts that the prosecutor improperly stated that defendant believed that some people in Kalamazoo were ignorant, which prejudiced the jury against him. However, any questions or statements concerning defendant's belief that there were ignorant people in Kalamazoo were the result of defendant's own testimony and his statements during his police interview.
Defendant also argues that the prosecutor engaged in misconduct by telling the jury that defendant lied about the circumstances of the confrontation. The prosecutor pointed out that defendant initially lied to the police about how he traveled to the apartment complex-he originally stated that he took the bus. He admitted during his testimony that this was not true. Again, the prosecutor's arguments were a result of defendant's testimony. To the extent that the prosecutor argued that the jury would have to discount the testimony of the police officers who testified at trial to find that defendant acted in self-defense, that argument related to the prosecutor's theory of the case on the basis of the witness testimony provided at trial. See Unger, 278 Mich.App. at 236.
Moreover, the trial court provided the following instruction to the jury:
The lawyers' statements and arguments are not evidence. They are only meant to help you understand the evidence and each side's legal theories. You should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge. The lawyers' questions to the witnesses and my questions to the witnesses are also not evidence. You should consider these questions only as they give meaning to the witnesses' answers.
As a result, the jury instructions cured any possible prejudicial effect of any inappropriate statements made by the prosecutor and the jurors are presumed to follow the instructions. See id. at 235.
C. JURY VERDICT
Next, defendant argues in his Standard 4 brief that the jury verdict form used at trial was faulty because it did not allow for a general verdict of Not Guilty or include a Not Guilty option for the lesser included offense of second-degree murder or voluntary manslaughter. Because review of the jury verdict form shows that the jury was given the option to return a general verdict of Not Guilty, we disagree.
Generally, "[c]laims of instructional error are reviewed de novo." People v Wade, 283 Mich.App. 462, 464; 771 N.W.2d 447 (2009), rev'd 485 Mich. 986 (2009), reversal vacated on recon 486 Mich. 909 (2010). However, defendant's unpreserved claim concerning the jury verdict form is reviewed for plain error affecting his substantial rights. See Carines, 460 Mich. at 752-753. "A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." Wade, 283 Mich.App. at 467 (quotation marks and citation omitted). "[A] criminal defendant is deprived of his constitutional right to a jury trial when the jury is not given the opportunity to return a general verdict of not guilty." Id.
In pertinent part, the jury verdict form consisted of the following options:
(Image Omitted)
The form instructed the jury to select one box for each count. Accordingly, contrary to defendant's claim, the verdict form expressly gave the jury the option to select a general "Not Guilty" verdict for the open murder charge, which necessarily included the lesser included offenses, and the felony-firearm charge. Therefore, any challenge to the jury verdict form is meritless. See id. at 468.
D. JURY COMPOSITION
Finally, in his Standard 4 brief, defendant argues that, considering the racial demographics of Kalamazoo County, it is objectively unreasonable that only 75 white people were selected for jury service in defendant's case. Concluding that defendant has not shown that the composition of the jury was the result of systemic exclusion of a specific group, we disagree.
Generally, whether a defendant was denied of his or her Sixth Amendment right to an impartial jury drawn from a fair cross-section of the community is a constitutional question that is reviewed de novo. People v Bryant, 491 Mich. 575, 595; 822 N.W.2d 124 (2012). The trial court's factual findings are reviewed for clear error, which occurs "if the reviewing court is left with a definite and firm conviction that the trial court made a mistake." Id.
"The Sixth Amendment of the United States Constitution guarantees a defendant the right to be tried by an impartial jury drawn from a fair cross section of the community." Id. To make a prima facie case of a violation of the fair cross-section requirement, a defendant must show:
(1) that the group alleged to be excluded is a 'distinctive' group in the community;
(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community;
and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. [Id. at 597.]
As an initial matter, defendant claims that everyone selected for jury service in his trial was white; however, there is no actual record evidence of the actual composition of the jury. Moreover, the trial court specifically rejected this claim because a 2022 assessment of jury operations by the National Center for State Courts concluded that, although there was an underrepresentation of Black jurors, the underrepresentation was not caused by systematic exclusion. Defendant has not provided any evidence to dispute the trial court's conclusion. Therefore, he has failed to establish a prima facie case of a violation of the fair cross-section requirement. See id.
Affirmed.