Opinion
No. 341363
03-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRYANT VINCENT-DOUGLAS MCGEE also known as, BRYANT MCGEE, BRYANT V. MCGEE, and BRYANT VINCENTDOUGLAS MCGEE, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 17-000196-FH Before: METER, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
Defendant, Bryant Vincent-Douglas McGee, appeals as of right his jury trial convictions of two counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(b) and (c). The trial court sentenced defendant to 5 to 15 years' imprisonment for each CSC-III conviction, to be served concurrently. We affirm.
Defendant was charged with the above as a result of his conduct at the home of his girlfriend's close friend on September 20, 2016. On that date, defendant and his girlfriend, along with the victim and other friends, spent some time drinking alcohol at the victim's home, and then serval hours at a bar. According to the victim, defendant and his girlfriend stayed the night at her home upon returning from the bar. The victim went to bed in her own bedroom, and defendant and his girlfriend went to bed in one of the victim's spare bedrooms. The victim later awoke to defendant's hands and tongue in and on her vagina. She kicked defendant and yelled at him to leave, which he did. After defendant was convicted of the charged offenses, he moved for a new trial and a Ginther hearing, which the trial court denied.
On appeal, defendant first asserts that he was denied the effective assistance of trial counsel and that the trial court erred in denying his motion for a new trial and request for a Ginther hearing. We disagree.
In general, a determination whether a defendant received effective assistance of counsel "is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "This Court reviews findings of fact for clear error and questions of law de novo." People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). Where there is no evidentiary hearing, we limit our review to errors apparent on the existing record. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). We review both a trial court's denial of a motion for new trial and its denial of a motion for a Ginther hearing for an abuse of discretion. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008); People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008).
In order to find merit in a defendant's claim of ineffective assistance of counsel, the defendant must first show that defense counsel's performance fell below an objective standard of reasonableness. See People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012) (citation omitted). The Court must analyze the issue with a strong presumption that defense counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant overcome the presumption that the challenged action or inaction might be considered sound trial strategy. See Leblanc, 465 Mich at 578 (citations omitted). Second, defendant must show that, but for defense counsel's deficient performance, a different result would have been reasonably probable. See Russell, 297 Mich App at 716 (citation omitted). However, "[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
First, defendant argues that he was denied the effective assistance of counsel because defense counsel failed to impeach the complaining witness with her text messages that indicated that she was drunk and the incident was "hazy." We disagree.
Counsel may be ineffective if counsel "unreasonably fails to develop the defendant's defenses by adequately impeaching the witnesses against the defendant." People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). In general, a witness may be impeached with a prior inconsistent statement. MRE 607; MRE 613; People v Rodriguez, 251 Mich App 10, 34; 650 NW2d 96 (2002).
In this case, defense counsel repeatedly questioned the victim about her drinking and her marijuana use on the night in question to undermine her credibility. The victim testified that the morning after the incident, she felt "hazy" and that she was confused by all the emotions that she was feeling. Defendant fails to overcome the presumption that defense counsel's decision to focus on the delay in reporting and to avoid asking questions about the text where the victim indicated it was "hazy" was sound. See Heft, 299 Mich App at 83. It would be a reasonable strategy for defense counsel to avoid eliciting possible testimony from the victim regarding her emotions after the assault. Therefore, defendant fails to establish that trial counsel's performance was objectively unreasonable.
Next, defendant argues that he was denied the effective assistance of counsel because defense counsel failed to impeach the complaining witness on a prior inconsistent statement, specifically her text message about her mother pressuring her to report the incident. We disagree.
At trial, the victim was questioned by both the prosecution and defense counsel regarding her delay in reporting, and she provided a reasonable explanation. She stated that the experience was embarrassing and that defendant's girlfriend was pressuring her not to report. This statement is not inconsistent with the text message about her mother. Further, defendant fails to overcome the presumption that defense counsel's decision was strategic to focus on the delay in reporting itself. See id.
Defendant also argues that he was denied the effective assistance of counsel because counsel failed to call character witnesses who could have testified to defendant's honesty and reputation for truthfulness. We disagree.
Generally, "[d]ecisions regarding whether to call or question witnesses are presumed to be matters of trial strategy." Russell, 297 Mich App at 716. However, defense counsel's decision not to call a witness can result in ineffective assistance if it deprives the defendant of a substantial defense. Id. Defendant has provided the names of two potential witnesses whom he argues would have provided favorable testimony regarding defendant's character; however, there is no evidence in the record that defendant informed his trial counsel of these potential witnesses. Accordingly, defense counsel's performance cannot be found to fall below an "objective standard of reasonableness" for not calling witnesses that he did not know existed.
Defendant also argues that the cumulative impact of defense counsel's alleged deficiencies in his representation of defendant constitute ineffective assistance. Defendant has not, however, identified any errors in counsel's representation that would warrant relief. "Because no errors were found with regard to any of the above issues, a cumulative effect of errors is incapable of being found." People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).
Defendant has also failed to show that any of his trial counsel's alleged errors prejudiced him because they were not outcome determinative. A jury may convict on the uncorroborated evidence of a CSC victim. MCL 750.520h. The victim testified that she awoke to defendant sexually touching and penetrating her, which she did not consent to. Her testimony alone is sufficient to support the jury verdict. Therefore, defense counsel's failure to impeach the victim does not meet the second requirement of an ineffective assistance claim that "but for counsel's deficient performance, a different result would have been reasonably probable." Russell, 297 Mich App at 716. Furthermore, we find that the trial court's denial of defendant's motion for a new trial or Ginther hearing was not an error because defendant did not provide arguments sufficient to suggest the need for an evidentiary hearing or a new trial.
Defendant next argues that the prosecutor committed misconduct when he asked a potential juror during voir dire, who was a registered nurse, about her experience with victims of sexual assault and how often those patients had delayed in reporting the assault. We disagree.
To preserve a claim of prosecutorial misconduct, a defendant must either timely object or request a curative instruction. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). In this case, defendant did not object to the prosecutor's statements or make a request for a curative instruction. Thus, this issue is not preserved for appellate review. We review unpreserved claims of prosecutorial misconduct for plain error affecting substantial rights. Brown, 279 Mich App at 134. Under the plain error rule, a defendant must establish that error occurred, the error was clear and obvious, and that it affected his substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Whether a jury's exposure to extraneous information denied defendant his constitutional rights necessarily involves a question of constitutional law. See People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997). We review constitutional issues de novo. LeBlanc, 465 Mich at 579.
Given that a prosecutor's role and responsibility is to seek justice and not merely convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and impartial trial. People v Jones, 468 Mich 345, 354; 662 NW2d 376 (2003); People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the defendant's guilt or innocence. People v Rice, 235 Mich App 429, 438; 597 NW2d 843 (1999). Issues of prosecutorial misconduct are decided on a case-by-case basis, and we must examine the entire record and evaluate a prosecutor's remarks in context. People v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). "The propriety of a prosecutor's remarks depends on all the facts of the case." Rodriguez, 251 Mich App at 30.
The function of voir dire is to elicit sufficient information from prospective jurors to enable the trial court and counsel to determine who should be disqualified from service on the basis of an inability to render decisions impartially. In ensuring that voir dire effectively serves this function, the trial court has considerable discretion in both the scope and conduct of voir dire. What constitutes acceptable and unacceptable voir dire practice "does not lend itself to hard and fast rules." People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6 (1996).
During voir dire, the prosecutor attempted to discern whether the jury could be impartial. The queries ,about whether the registered nurse had experienced instances when victims of sexual assault that delayed reporting and whether it was common, were within the proper scope of voir dire. Questioning that is necessary to determine whether a prospective juror should be excused is permissible. People v Bell, 209 Mich App 273, 278; 530 NW2d 167 (1995). In this case, defendant was charged with CSC-III, and the victim delayed in reporting. The question regarding the registered nurse's experience was directly related to the case at hand and any possible bias that she may have from her experience.
Further, the trial court instructed the jurors regarding the law and the evidence that could be considered. The jury is presumed to follow the instructions of the court. People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). In sum, defendant has not established that there was error requiring reversal stemming from prosecutorial misconduct in this case. That being the case, there is no merit to defendant's argument that counsel was ineffective for failing to object to the alleged misconduct. Counsel is not defective for failing to raise meritless or futile objections. Ericksen, 288 Mich App at 201.
Next, defendant contends that the jury's verdict was against the great weight of the evidence. We disagree.
A challenge to a trial court's grant or denial of a new trial on the ground that the verdict was against the great weight of the evidence is reviewed for an abuse of discretion. Unger, 278 Mich App at 232. A trial court may grant a motion for a new trial on the basis of the great weight of the evidence only if the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998).
A jury verdict will be vacated "only when it does not find reasonable support in the evidence, but is more likely to be attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence." People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (quotation marks and citation omitted). The hurdle that a judge must clear in order to overrule a jury and grant a new trial "is unquestionably among the highest in our law." People v Plummer, 229 Mich App 293, 306; 581 NW2d 753 (1998) (quotation marks and citation omitted).
Defendant's argument hinges on the credibility of the victim. Defendant argues that one of the victim's text messages indicated that her memory was "hazy" and that she was drunk on the night of the incident. However, defense counsel thoroughly cross-examined the victim about her drinking and possibly smoking marijuana that night. Moreover, the information contained in the text messages did not seriously impeach her testimony. The victim consistently gave clear and vivid testimony about waking up to the pressure from defendant penetrating her vagina with his tongue and fingers, and the only person to contradict her version of events was defendant himself. Defendant, on the other hand, first testified that the incident was consensual. He also testified that he told his girlfriend that he thought the victim was her. Defendant's girlfriend also testified that defendant first told her he thought it was her and then also said he did not remember doing it, and then later told her it was a consensual encounter. Defendant's girlfriend additionally testified that defendant was blackout drunk on the night of the incident whereas defendant testified that he was not. "Absent exceptional circumstances, issues of witness credibility are for the trier of fact." Unger, 278 Mich App at 232.
Next, defendant argues that the victim only reported the incident because her mother threatened to report it if she did not. The victim explained that she initially felt embarrassed to report the incident and that defendant's girlfriend was begging her not to. The text messages support this version of events. Defendant argues that there was a direct contradiction with her testimony regarding her mother pressuring her to report. However, the victim was never asked about whether her mother pressured her to report. As a result, there is no "direct contradiction" in the victim's testimony. The record demonstrates that the jury's decision to credit the victim's testimony and find that defendant engaged in inappropriate sexual contact with her is not against the great weight of the evidence.
Defendant next argues that the text messages between defendant and the victim were inadmissible because they constituted a prior consistent statement improperly proffered by the prosecution to bolster the victim's testimony. We disagree.
Generally, evidentiary issues are reviewed for an abuse of discretion. People v Benton, 294 Mich App 191, 199; 817 NW2d 599 (2011). However, we review unpreserved claims for plain error affecting substantial rights. Carines, 460 Mich at 763. Under the plain error rule, a defendant must establish that error occurred, the error was clear and obvious, and that it affected his substantial rights. Id.
In general, it is impermissible for a party in a criminal trial to bolster a witness's trial testimony using a prior consistent statement made by that witness. People v Hallaway, 389 Mich 265, 275-276; 205 NW2d 451 (1973). However, admission of such a statement may be proper in accordance with MRE 801(d)(1)(B). Prior statements of a witness are admissible where "[t]he declarant testifies at the trial . . . and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . ." MRE 801(d)(1)(B). Inherent in defendant's argument and line of questioning at trial was the charge that the victim had fabricated the story a few days after the incident when she reported it. Defendant also has repeatedly challenged the victim's credibility both at trial and on appeal. Such a challenge insinuates some improper influence or motive that the challenged, consistent text messages could rebut. Accordingly, the text messages fall within the meaning of MRE 801(d)(1)(B) and were admissible at trial. Because they were admissible, defendant's claim that his counsel was ineffective for failing to object to the admission of the text messages fails. Counsel is not ineffective for failing to raise meritless or futile objections. Ericksen, 288 Mich App at 201.
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ James Robert Redford
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).