Opinion
No. 339247 No. 339266
08-21-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DIVONE ANTOINE RICE, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC Nos. 16-008533-FC; 16-008535-FC Before: SAWYER, P.J., and STEPHENS and GADOLA, JJ. PER CURIAM.
Defendant was convicted, following a jury trial, of armed robbery, MCL 750.529, possession of a firearm during the commission of a felony, MCL 750.529, and perjury, MCL 767A.9(1)(b). He was sentenced as a habitual offender, MCL 769.11, to 23 to 50 years in prison on the robbery conviction, 15 to 50 years for the perjury conviction and to two years for the felony-firearm conviction. He now appeals and we affirm.
A couple were walking in the Alger Heights area of Grand Rapids when approached by an individual who grabbed the wife, held a gun to her head, and demanded her purse. A second individual was at the nearby intersection serving as a lookout. As the first assailant was running off with the purse, he turned and shot the husband in the abdomen. The two assailants ran off on foot; the victims were able to flag down a passing car and police dispatch was called. The shooting victim identified defendant at trial as one of the assailants.
Defendant first argues that the trial court erred by joining the perjury charge for trial with the "unrelated" charges of armed robbery and felony-firearm. We disagree. The principles related to joinder in criminal cases were reviewed by this Court in People v Gaines, 306 Mich App 289, 304-305; 856 NW2d 222 (2014):
Whether joinder is appropriate is a mixed question of fact and law. People v Williams, 483 Mich 226, 231; 769 NW2d 605 (2009). "To determine whether joinder is permissible, a trial court must first find the relevant facts and then must decide whether those facts constitute 'related' offenses for which joinder is appropriate." Id. This Court reviews a trial court's factual findings for clear error and its interpretation of a court rule, which is a question of law, de novo. Id. However, the ultimate decision on permissive joinder of related charges lies "firmly within the discretion of trial courts." See People v Breidenbach, 489
Mich 1, 14; 798 NW2d 738 (2011). This Court reviews de novo questions of constitutional law. People v Harper, 479 Mich 599, 610; 739 NW2d 523 (2007).
MCR 6.120 provides, in relevant part:
(B) Postcharging Permissive Joinder or Severance. On its own initiative, the motion of a party, or the stipulation of all parties, except as provided in subrule (C), the court may join offenses charged in two or more informations or indictments against a single defendant, or sever offenses charged in a single information or indictment against a single defendant, when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence of each offense.
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on
(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
(2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial.
(3) If the court acts on its own initiative, it must provide the parties an opportunity to be heard.
Defendant argues that the charges had to be severed because they are unrelated. But this argument is disingenuous. The perjury charge was, in fact, directly related to the robbery charge. That is, defendant was accused of perjuring himself while answering questions under oath, pursuant to an investigative subpoena, regarding the robbery itself. We are not persuaded by defendant's argument that the two charges are unrelated because he was being interrogated as a potential witness rather than as a potential suspect.
Moreover, defendant's additional argument that the perjury charge would have been difficult to prove without joining it with the robbery charge actually weakens defendant's position rather than strengthens it. Because the perjury charge relates to defendant's statements regarding the robbery, even if the charges were tried separately, evidence of defendant's participation in the robbery would have been admitted in order to prove that his statements made under the investigative subpoena were false. That is, the separate trials likely would have both looked much like the combined trial did. And, of course, if the jury were to conclude that defendant was being truthful in his answers made under the investigative subpoena, they would have acquitted him of the perjury charge and, presumably, on the robbery charge as well.
In sum, the charges are related under the court rule. And there is a lack of any meaningful prejudice to defendant, while wasting resources with two separate trials. We are satisfied that the trial court did not abuse its discretion in denying the motion to sever.
Next, defendant argues that there was insufficient evidence to support his convictions. We disagree. This Court reviewed the principles related to a sufficiency of the evidence argument in People v Mikulen, ___ Mich App ___, ___; ___ NW2d ___ (No. 337003, rel'd 4/24/2018), slip op at 2:
We review de novo the issue regarding whether there was sufficient evidence to sustain a conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
Defendant only challenges the element of identification. Specifically, he challenges the reliability of the eyewitness identification by one of the victims as well as the credibility of the testimony of Mary Rogers, whose testimony places defendant and the second assailant at the scene, acting in a manner consistent with the robbery, and discussing committing a robbery. While defendant raises valid points as to why the jury might choose not to believe the testimony of these witnesses, it was for the jury to determine whether to believe the testimony and how much weight to give to the testimony of both witnesses. As the Supreme Court explained in People v Palmer, 392 Mich 370, 375-377; 220 NW2d 393 (1974):
In a criminal trial the burden is on the prosecution to prove the defendant's guilt beyond a reasonable doubt on every element of the crime charged. On appeal from a conviction a defendant may request the appellate court to determine if the prosecution fulfilled this burden. In conducting this review the appellate court must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v Mosden, 381 Mich 506, 510; 164 NW2d 26 (1969). In determining the facts the jury may draw reasonable inferences from the facts
established by either direct or circumstantial evidence. People v Weyonen, 247 Mich 308, 311; 225 NW 552 (1929).Moreover, this Court has held that a conviction is to be upheld even where the eyewitness testimony is at odds with physical evidence:
Juries, not appellate courts, see and hear witnesses and are in a much better position to decide the weight and credibility to be given to their testimony. Where sufficient evidence exists, which may be believed by the jury, to sustain a verdict of guilty beyond a reasonable doubt, the decision of the jury should not be disturbed by an appellate court. People v Moore, 306 Mich 29, 33; 10 NW2d 296 (1943).
In a criminal case the reviewing court must examine the record to determine whether the evidence was ample to warrant a jury verdict of guilty beyond a reasonable doubt of the crime charged. People v Williams, 368 Mich 494, 501; 118 NW2d 391 (1962). In People v Howard, 50 Mich 239, 242; 15 NW 101 (1883), this Court considered the proper role of an appellate court reviewing the jury's decision[:]
"As to whether the evidence introduced was sufficient to sustain the charge made, we need but say that if there was evidence tending to sustain the charge made in either of the counts, then this court will not attempt to weigh the same and say whether the jury ought or not to have considered it sufficient. In testing this question we are not required to take that which respondent relies upon and that which would tend against him, and from a comparison thereof determine which was the stronger and better, or, deducting the one from the other, say what if anything, was left. This would be but a weighing of the evidence and was entirely within the province of the jury. Nor are we to take the evidence in the order, question and answer, in which it was given, but finding it where we may, and putting what was most favorable to the prosecution together, and discarding all other, can this court say it fairly tended to establish the charge made? If so, then the verdict of the jury in this court must be considered as final. If, however, we find a total want of evidence upon any essential point, then it becomes a clear duty to sustain the exceptions taken."
Defendant next contends that his conviction was based upon insufficient evidence since a chemical analysis revealed that the defendant's blood type did not match a semen sample found at the scene of the crime. Counsel for defendant vigorously and earnestly contends that, in the fact [sic] of the absence of any other physical evidence linking defendant to the crime, the complainant's eyewitness testimony alone is not sufficient evidence upon which to base a conviction. We disagree. A complainant's eyewitness testimony, if believed by the trier of fact, is sufficient evidence to convict. See People v Knapp, 34 Mich App 325, 332; 191 NW2d 155 (1971). Moreover, the trier of fact is not bound to believe uncontradicted expert testimony, since the weight and credibility to be accorded the testimony of expert witnesses is for the jury. People v Horowitz, 37 Mich App
151, 158; 194 NW2d 375 (1971), lv den, 387 Mich 753 (1972). The jury in this case was presented with a perplexing conflict in the evidence. On the one hand they had the very convincing eyewitness testimony of the complainant as set out in the facts, and on the other hand, they had the testimony of the police chemist which would tend to exclude the defendant as the perpetrator of the crime. It is not our role as the reviewing court to second-guess why the jury found as it did, but the jury might well have considered the fact that the semen sample consisted of only one dead spermatozoa and that the time at which the sample was deposited could not be determined with any degree of accuracy. Weighing the evidence before it, the jury did not conclude that the scientific evidence, under these particular circumstances, was sufficient to establish a reasonable doubt of defendant's guilt in the light of the thoroughly convincing testimony of the complainant. Our system of jurisprudence requires that the weight of evidence and the credibility of a witness be left to the trier of fact. People v Knapp, supra, 34 Mich App at 332; 191 NW2d at 159. [People v Newby, 66 Mich App 400, 404-405; 239 NW2d 387 (1976).]
In short, defendant asks us to do precisely that which we cannot do: substitute our judgment of the evidence for the jury's determination. Regardless of how compelling are defendant's points regarding the weight to be assigned to the challenged testimony, that was a determination to be made by the jury, not this Court. Obviously the jury was satisfied. Indeed, even if Mary Rogers' testimony is completely ignored, the victim's identification of defendant is sufficient to sustain the conviction. Accordingly, defendant's argument is without merit.
The next argument in defendant's brief is that he was denied the effective assistance of counsel because counsel failed to object to the scoring of OV 4. But the body of defendant's argument refers to a different defendant and a different victim. We can only assume that defense counsel inadvertently included this argument in the brief on appeal. It certainly does not link any argument to the case before us.
And, in any event, we note that, while defendant was scored 10 points for OV 4, even if it were scored at zero points, it would not change the sentencing guidelines recommendation.
The final argument in defendant's primary brief on appeal is that the trial court abused its discretion in allowing the prosecutor to inform the jury that defendant was in jail before being arrested for the current offense. We disagree. Bakari Dixon testified regarding a conversation he had with defendant while both were in the Kent County jail. The essence of Dixon's testimony is that defendant stated that he hoped that Kameron Moore, who was also lodged in the jail at the time, would not "tell on me." Before Dixon testified, defense counsel moved to exclude any reference to the fact that the conversation took place in the "God Pod" section of the jail, arguing that it was more prejudicial than probative under MRE 403. The prosecutor argued that the context of the location of the conversation was relevant to the credibility of Dixon's testimony. The trial court agreed and allowed the witness to testify that the conversation took place in the "God Pod."
On appeal, defendant again argues that the trial court erred in admitting the evidence under MRE 403, as well as arguing that it was not admissible under MRE 404(b). With respect to MRE 404(b), the prosecutor did not seek admission under MRE 404(b) nor did the trial court admit the evidence under that rule. Moreover, that rule would not apply here—there was no evidence of defendant's prior crime admitted. That is, Dixon only testified that the conversation took place while both were incarcerated in the jail; there was no testimony regarding why defendant was in jail. Indeed, at most, the jury may have deduced from the timeline of events in this case that, at the time of the conversation, defendant had not yet been charged with the instant offense and, therefore, was likely in jail for some other reason. But that reason was not made obvious to the jury. The jury was not told whether he was in jail awaiting trial or serving a sentence on some unspecified charge.
Rather, trial counsel correctly argued this as an MRE 403 issue. Under MRE 403, otherwise relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." While the relevance of the location of the conversation may have been minimal, so is any potential prejudice from that fact. We certainly cannot say that the relevance is "substantially outweighed" by any potential prejudice. Indeed, the fact that Dixon was in jail may well have benefited defendant as that fact may have affected the jury's assessment of Dixon's credibility. Moreover, any limited prejudice was effectively cured by the trial court's instruction that the jury was not to consider any prior incarceration. As this Court observed in People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003):
For that matter, the jury was informed of the benefits received by Dixon in exchange for his cooperation in this case.
Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors. We are not persuaded that the above exchange had a prejudicial effect so severe that it was not cured by the instruction appropriately issued. Defendant was entitled to a fair trial, not a perfect one. [Citations omitted.]We are not persuaded that the trial court abused its discretion in admitting the evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
We turn now to the issues raised by defendant in his pro per Standard 4 brief. Defendant's first two arguments are that there was insufficient evidence to support his convictions. But defendant's argument suffers the same flaw as the sufficiency argument made by defense counsel: it ultimately is merely a disagreement with the conclusion reached by the jury. Defendant argues that the evidence, at most, merely places defendant at the scene of the crime, not that he acted in concert with Moore to actually commit the crime. But that overlooks Rogers' testimony regarding defendant's behavior and, more to the point, the discussion between Moore and defendant to commit an armed robbery. It also overlooks Dixon's testimony that defendant was concerned that Moore would "tell on me." In short, looking at the evidence in the light most favorable to the prosecution, the jury could conclude that defendant fully participated in the crimes.
Defendant next argues that the prosecutor improperly commented on defendant's pretrial silence. We disagree. Defendant argues that the following comments in the prosecutor's opening statement were improper: (1) that defendant, upon observing Kameron Moore committing the robbery, did not run off or try to help the victims, and (2) that defendant lied during his testimony under the investigative subpoena. Defendant additionally argues that the prosecutor made impermissible statements during closing argument: (1) that defendant did not run off when observing Moore commit the robbery nor try to stop Moore, (2) that, during the testimony under the investigative subpoena, instead of telling the police that he saw Moore do it, defendant lied and gave a false alibi. Defendant also attempts to link these statements as being a comment on defendant's failure to testify at trial, although he does not point to the prosecutor actually commenting on that.
And, in any event, the trial court did instruct the jury on the defendant's right not to testify. See Abraham, supra.
The first problem with defendant's argument is that none of these statements actually comment on his pretrial silence. The references to defendant's not running off or otherwise attempting to stop Moore or help the victims comment on defendant's actions (or inaction), not his silence or refusal to talk to the police. Similarly, the statements regarding defendant's testimony under the investigative subpoena were not that defendant refused to testify, but that defendant lied in his testimony. Simply put, none of these statements actually involve comments, proper or improper, on defendant's right to remain silent under the Fifth Amendment.
Defendant next argues that the trial court erred in failing to dismiss the perjury charge because the investigative subpoena failed to comply with the statute, MCL 767A.1 et seq. Although defendant's heading states that the subpoena was undated and unsigned, his argument does not refer to these alleged deficiencies. Rather, in his argument, defendant argues the following: (1) that the investigative subpoena failed to comply with the requirements of MCL 767A.4(1)(f) and (g); (2) that the prosecutor failed to establish good cause shown for the waiver of the seven-day waiting period between the service of the subpoena and the taking of testimony as required by MCL 767A.4(2); (3) that the failure to wait the seven days precluded defendant from obtaining counsel before testifying and that the prosecutor failed to advise him of his rights under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966); and (4) that the failure to wait the seven days precluded him from being able to object to the subpoena.
Actually, defendant's brief refers to MCL 767A.4(F) and (G). But there are no such sections and we assume that he is actually referring to MCL 767A.4(1)(f) and (g).
Defendant's arguments suffer from a number of deficiencies. First, they are more statements of position rather than actually a developed argument. This is inadequate to present an issue on appeal. People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) ("An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority."). Second, the only authority that he does cite in support of his argument that, because of the alleged shortcomings, he is entitled to dismissal of the charges is an unpublished decision of this Court that does not actually support defendant's position. See People v Jeffries, unpublished opinion per curiam of the Court of Appeals, issued May 18, 2017 (Docket No. 330461). Indeed, in rejecting a similar argument in an investigative subpoena case, the Jeffries Court looked to People v Bassage, 274 Mich App 321, 326-327; 733 NW2d 398 (2007):
Even if the prosecutor had somehow violated defendant's Fifth Amendment right against self-incrimination, defendant's testimony still would not have been protected. The United States Supreme Court has repeatedly held that, even in the face of governmental wrongdoing, a person has no right to present false testimony. United States v Mandujano, 425 US 564, 576-577; 96 S Ct 1768; 48 L Ed 2d 212 (1976) (opinion by Burger, C.J.); Bryson v United States, 396 US 64, 72; 90 S Ct 355; 24 L Ed 2d 264 (1969) ("[I]t cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions—lying is not one of them."). Indeed, we said as much in People v Jeske, 128 Mich App 596, 602; 341 NW2d 778 (1983), overruled in part on other grounds, People v Lively, 470 Mich 248, 256 n 8; 680 NW2d 878 (2004), in which we held that the "deprivation of a defendant's constitutional rights does not create a license to commit perjury," citing Wong [United States v Wong, 431 US 398; 118 S Ct 805; 139 L Ed 2d 830 (1998)] and Mandujano.
This is true even if a witness like defendant, who was never informed of his right against self-incrimination, faces the choice of incriminating himself for a past crime or presenting false testimony. Wong, supra at 178; Jeske, supra at 602-603. Therefore, even if the prosecutor had violated his duty not to present false testimony to obtain a conviction, People v Lester, 232 Mich App 262, 277; 591 NW2d 267 (1998), or failed to properly advise defendant of his Fifth Amendment right, the prosecutor's wrongful conduct would not have excused or protected defendant's decision to lie under oath. Our system of justice is founded upon truthful testimony, and no one—neither witness nor party—can take the oath and then lie from the witness stand with the justification that the government violated his or her rights in securing that testimony. Mandujano, supra at 576-578 (opinion by Burger, C.J.). [Footnote omitted.]
Accordingly, even if defendant were able to develop support for the argument that there was a failure to comply with the statute, that would only have provided support for him to have quashed the subpoena before giving his testimony. It would not, however, provide a defense to the perjury charge because, as Bassage points out, there is no right to perjure oneself regardless of the circumstances.
Next, defendant argues that he was denied his Sixth Amendment right to be present at a critical stage of the proceedings. Specifically, defendant argues that his right to be present was violated when the trial judge and counsel met without defendant being present to address two issues involving jurors: (1) when, during a recess, a juror passed defense counsel in the hall who was having a conversation with the victims and (2) when the issue of a sleeping juror was addressed. In the first instance, counsel and the judge met with the juror, who stated that he had been on the phone at the time and did not hear any part of the conversation between defense counsel and the victims. In the second, both counsel agreed that there had been at least two incidents of the juror falling asleep during the proceedings. It was agreed by both counsel and the judge that the sleeping juror would merely be dismissed as one of the alternates (with the second alternate to be dismissed actually being chosen by random draw).
This process was apparently agreed upon in order to avoid publicly embarrassing the juror over the issue.
Defendant agrees that this issue is controlled by the Supreme Court's decision in People v Morgan, 400 Mich 527; 255 NW2d 603 (1977). In Morgan, an issue arose regarding the possibility that, during trial, jurors may have been exposed to media coverage. It was agreed that each of the jurors would be questioned in chambers with counsel present. The defendants themselves waited in the courtroom while this transpired. Like in our case, the defendants in Morgan argued that they were denied their right to be present during the questioning of the jurors.
In reaching its decision, Morgan rejected the position of an older case that injury to the defendant was to be conclusively presumed:
No less an authority than the United States Supreme Court has recognized that even violations of constitutional rights can amount to harmless error in the circumstances of a particular case, and in cases involving a defendant's absence from a part of a trial, that Court has indicated that automatic reversal is not the rule. Similarly, the recent cases from the Federal Courts of Appeal have rejected a rule of automatic reversal in cases involving a defendant's absence from trial.
In our most recent case dealing with this area of criminal procedure, People v Carroll, 396 Mich 408; 240 NW2d 722 (1976), we affirmed the defendants' conviction despite their absence during the questioning of jurors similar to that in the case at bar. Implicitly, at least, the three justices who signed the majority opinion in Carroll and the two justices who concurred in the result rejected the principle that once absence is established "injury is conclusively presumed".
Today, we explicitly reject that principle. In its place we adopt the following language from Wade v United States, 142 US App DC 356, 360; 441 F2d 1046, 1050 (1971), as the proper test for determining whether a defendant's absence from a part of a trial requires reversal of his or her conviction:
"It is possible that defendant's absence made no difference in the result reached. The standard by which to determine whether reversible error occurred (is) * * * whether there is 'any reasonable possibility of prejudice'." [Morgan, 400 Mich at 535-536. Footnotes omitted.]
Defendant has not persuaded us of any possibility of prejudice, reasonable or otherwise. With respect to the hallway incident, defendant first states that he would have advised his attorney to focus his examination of the juror "in a different direction" without stating what that direction would be. Defendant then states he would have requested the exclusion of the juror who observed the conversation. But defendant only offers specious speculation as to why the juror, who stated that he did not overhear the conversation, should have been excluded: that the juror may have drawn an adverse conclusion from seeing the conversation (that defense counsel agreed with the victim's testimony). As for the sleeping juror incident, defendant does not even offer an argument as to why or how the incident should have been handled differently. Defendant also overlooks the fact that both incidents, and how they were addressed, were placed on the record with defendant present and he offered no objection at that time.
In short, defendant ultimately seeks for us to apply the standard expressly rejected in Morgan: that we should conclusively presume prejudice. But that is no longer the standard and defendant has failed to demonstrate the reasonable possibility of prejudice.
Defendant's next assignment of error regards Detective Needham's testimony regarding defendant's having complained in telephone calls to his family of his losing weight while in jail. Defense counsel objected outside the presence of the jury after the testimony. The trial court offered to give a cautionary instruction. Defense counsel was initially indecisive regarding the instruction, pondering whether to let it go by without drawing further attention to the statement or to request the instruction. Ultimately, counsel requested the instruction, connecting it with the above-discussed "God Pod" issue. As discussed in that issue, a cautionary instruction was given. And, just as with that issue, we are satisfied that that instruction adequately addressed any error.
His weight loss was brought up to explain the difference in his appearance at trial from that of a photo taken of him shortly after the crime took place. --------
Finally, defendant argues that he was denied the effective assistance of counsel by counsel's failure to object to defendant's absence during the handling of the juror issues discussed above, as well as the failure to object regarding the comments about defendant's exercising his right to remain silent. Once again, defendant merely states a position without developing an argument. Kelly, 231 Mich App 627. In any event, as discussed above, no prejudicial error resulted from defendant's absence during the discussions regarding the juror issues. And, also as discussed above, defendant does not, in fact, point to any improper comment on his right to remain silent.
Affirmed.
/s/ David H. Sawyer
/s/ Cynthia Diane Stephens
/s/ Michael F. Gadola