Opinion
351525
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENDRICK DEVON ROSS, Defendant-Appellant.
UNPUBLISHED
Kent Circuit Court LC Nos. 19-001256-FH; 19-001257-FC
Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.
Per Curiam.
Defendant, Kendrick Devon Ross, appeals by right his jury convictions of felon in possession of a firearm (felon-in-possession), MCL 750.224f; carrying a concealed weapon, MCL 750.227; assault with the intent to rob while armed, MCL 750.89; and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
In lower court case 19-001256-FH, the trial court sentenced Ross as a fourth-offense habitual offender, MCL 769.12, to 27 to 120 months' imprisonment for his felon-in-possession and carrying a concealed weapon convictions, and sentenced him to 24 months' imprisonment for his felony-firearm conviction. The court ordered Ross to serve these sentences consecutively to his sentence for violating parole, and ordered Ross to serve his sentence for felony-firearm consecutively to his sentence for felon-in-possession and concurrently with his sentence for carrying a concealed weapon.
In lower court case 19-001257-FC, the trial court sentenced Ross as a fourth-offense habitual offender to 264 to 360 months' imprisonment for his assault with the intent to rob conviction, and to 24 months' imprisonment for his felony-firearm conviction. The trial court ordered Ross to serve his felony-firearm sentence consecutively to his sentence for assault with the intent to rob, and ordered him to serve those convictions consecutively to his sentence for violating parole.
Ross raises multiple challenges on appeal, most of which arise from perceived errors by his trial counsel and the prosecutor. For the reasons explained in greater detail later, we disagree with Ross's arguments and affirm his convictions and sentences.
In his initial brief on appeal, Ross argued that in his Issue IV that an alternate juror committed misconduct requiring reversal. Ross later moved in this Court to withdraw that issue and add a new issue in a supplemental brief after he realized that his argument was based on an incorrect understanding of the facts regarding the alternate juror issue. This Court granted Ross's motions. People v Ross, unpublished order of the Court of Appeals, entered March 23, 2021 (Docket No. 351525). Thus, we will not address Issue IV as presented in Ross's original brief on appeal.
I. UNDERLYING FACTS
In the late evening of January 6, 2019, or the early morning of January 7, 2019, Dylan Adams bought some snacks from a gas station and was walking down the street in Grand Rapids when Ross approached him. Ross was riding a bike and, when he approached Adams, asked Adams if he had a lighter. Adams looked down to pull out his lighter and, when he looked up, Ross drew a gun from his waistband and pointed it at Adams's chest. Ross threatened Adams and told Adams to turn out his pockets. Adams, who was homeless, did not have any money. Ross evidently did not want anything Adams had. Ross then told Adams he was lucky Ross did not kill him and demanded Adams thank him for not killing him-which Adams did-before riding away on his bike. Adams saw defendant ride his bike west towards the nearby hospital before turning south on Lafayette Avenue.
After Ross left, Adams ran to the hospital and found two police officers outside. He told them what happened and police started looking for Adams's assailant in the area. Grand Rapids Police Officer Javo'n Sanders was driving in his patrol car when he saw a man-Ross-he believed matched the description of Adams's assailant. Officer Sanders performed a U-turn, pulled up parallel to Ross, and saw him toss a gun. Officer Sanders then pulled over and arrested Ross. Adams later identified Ross as his assailant at the police station during a lineup.
II. GREAT WEIGHT OF THE EVIDENCE
Ross argues that his convictions were against the great weight of the evidence because the prosecution failed to prove beyond a reasonable doubt that he was the individual who attempted to rob Adams. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant's argument that the jury's verdict is against the great weight of the evidence is preserved if the issue was raised in a motion for a new trial in the trial court. See People v Musser, 259 Mich.App. 215, 218; 673 N.W.2d 800 (2003). Defendant failed to do so. Thus, the issue is unpreserved.
Unpreserved issues are reviewed for plain error. People v Cain, 498 Mich. 108, 116; 869 N.W.2d 829 (2015).
To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice. Finally, once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence. [People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999) (quotation marks, citations, and brackets omitted).]"A 'clear or obvious' error under the second prong is one that is not 'subject to reasonable dispute.'" People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018).
B. ANALYSIS
"The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." Musser, 259 Mich.App. at 218-219. Importantly, "[i]t is the province of the jury to determine questions of fact and assess the credibility of witnesses." People v Weddell, 485 Mich. 942; 774 N.W.2d 509 (2009) (quotation marks and citation omitted). Because the jury determines questions of fact and assesses the credibility of witnesses,
[c]onflicting testimony, even when impeached to some extent, is an insufficient ground for granting a new trial. [U]nless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury's determination. [Musser, 259 Mich.App. at 219 (quotation marks and citation omitted; second alteration in original).]
Ross argues on appeal that all of his convictions are against the great weight of the evidence on two grounds involving the weight and credibility of witness testimony. First, he argues that Adams's identification of him as the assailant could not be believed given the inconsistencies in Adams's identification. Second, he argues that Officer Sanders's testimony that he saw Ross toss a gun cannot be believed because the dashcam video from Officer Sanders's car showed that Officer Sanders could not have seen Ross toss a gun to the location where it was found. Ross's arguments are unavailing in both cases.
"[I]t is well settled that identity is an element of every offense." People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008). "[P]ositive identification by witnesses may be sufficient to support a conviction of a crime." People v Davis, 241 Mich.App. 697, 700; 617 N.W.2d 381 (2000). Additionally, circumstantial evidence, without more, is sufficient to establish the identity element of an offense. See People v Bass, 317 Mich.App. 241, 264; 893 N.W.2d 140 (2016) ("[A]lthough the identity evidence is circumstantial . . . there was sufficient evidence for a rational fact-finder to conclude that defendant was the perpetrator.").
1. ADAMS'S IDENTIFICATION OF ROSS
Adams consistently and repeatedly identified Ross as the man who pointed a gun at him, forced him to turn out his pockets, and forced him to thank his assailant for not killing him on the night at issue. Adams also identified Ross in a corporeal lineup, at the preliminary examination, and at trial. Adams's identifications of Ross were sufficient to allow a reasonable jury to find beyond a reasonable doubt that Ross was the man who held Adams at gun point and tried to rob him. See Davis, 241 Mich.App. at 700 ("[T]his Court has stated that positive identification by witnesses may be sufficient to support a conviction of a crime."). Nevertheless, Ross argues that the jury could not have believed Adams because Adams made inconsistent statements about the events of the night of the robbery.
On the night of the robbery, Adams described his assailant as a tall Black man riding a bike who wore a green jacket and glasses. Officer Sanders's dashcam video from that night confirms that Ross was wearing an olive-green jacket. At the preliminary examination, however, Adams testified that the assailant wore a camouflage jacket. Adams then returned to his original description during trial when he testified that his assailant wore a green jacket.
Additionally, Adams's description of the assailant's bike did not match the bike Ross was riding the night of the incident. Adams repeatedly described the assailant's bike as a BMX-style bike or trick bike. He further thought the bike had "pegs" on it and believed that it was silver. But the bike that Ross was riding just before his arrest was not a BMX-style bike; rather, it was a blue Kent Cruiser. We note, however, that Adams also told the jury he was not sure about his description of the bike because the attempted robbery "happened all very fast." Adams also clarified that the bike was smaller than a mountain bike, but not as small as a child's bike, which was consistent with the size of Ross's bike.
Ross also maintains that Adams's testimony about the incident itself was inconsistent. Specifically, Ross notes that Adams told the deputies that he was robbed closer to the community college and testified that his assailant touched the gun to his chest, which he did not state at trial.
Adams testified at trial and at the preliminary examination that Ross robbed him on Michigan Street across from the McDonalds and near Lake Michigan Credit Union. Contrary to Ross's argument on appeal, Adams never stated that he was robbed near the corner of Crescent and Barclay. Instead, Adams gestured toward Crescent and Barclay when the police officers he approached immediately after the incident asked Adams which way his assailant went. Adams's gesture accurately depicted the direction he saw Ross ride away after the incident. Accordingly, Adams's testimony about the location of the robbery was consistent.
Adams also testified at both the preliminary examination and trial that Ross pointed the handgun at his chest. Adams stated at the preliminary examination that the gun touched his chest briefly, but at trial Adams denied that the gun touched his chest. When confronted at trial with his testimony from the preliminary examination, Adams stated that the event was "traumatic" and, if the gun touched him, it was only for a "brief second." Accordingly, the jury heard that the gun may have touched Adams's chest, but that Adams may have been mistaken about that too.
Examining the totality of the testimony, there were some inconsistencies between Adams's description of his assailant's bike and the color of his jacket, and Ross's bike and appearance as confirmed by the video and images from his arrest. Nevertheless, the record showed that Adams consistently related that he had been robbed by a Black man riding a bike on Michigan street in the early morning hours. He also stated that the Black man wore glasses and that his coat was green, army green, or camouflage. Ross was apprehended while riding a bike down Michigan street shortly after the robbery. At the time of his arrest, he was wearing a coat that could be described fairly as being army green. He also wore glasses and an officer testified that he saw Ross dig into his pocket and toss a gun before his arrest. The evidence that Ross for the most part matched the description given by Adams and tossed a gun when a police officer pulled up next to him shortly after the attempted robbery strongly suggested that Ross was the same person identified by Adams as his assailant. Furthermore, Adams repeatedly identified Ross as the assailant and never identified anyone else as the assailant. Consequently, although Adams's testimony was not perfectly consistent, the inconsistencies in his testimony do not "preponderate[] so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand." Musser, 259 Mich.App. at 218-219. Thus, the inconsistencies in Adams's testimony do not establish that Ross's convictions were against the great weight of the evidence.
2. OFFICER SANDERS'S TESTIMONY
In a similar vein, Ross contends that there were serious inconsistencies between Officer Sanders's testimony and the dashcam video from Officer Sanders's police car, which showed that Officer Sanders could not have seen Ross toss a gun. Ross's argument depends entirely on his belief that Officer Sanders saw Ross toss the gun when Ross was riding by the Jimmy Johns restaurant on Michigan street. Officer Sanders, however, never stated that he saw Ross toss the gun while in front of Jimmy Johns. Rather, Officer Sanders stated that he saw Ross toss the gun after he did the U-turn-which he did right before the Jimmy Johns restaurant-and while he was driving parallel to Ross. He further stated that Ross tossed the gun between Benson and Grand, which are both east of Jimmy Johns.
Officer Sanders did describe the point at which Ross pitched the gun as being near the Jimmy Johns, but his testimony suggested that he stated that as a way of conveying the location by relation to where he arrested Ross. And other officers clarified that the gun was found just down from the Jimmy Johns on the sidewalk next to the stretch of road where Officer Sanders turned around and pulled parallel to Ross. For that reason, Ross is mistaken when he argues that Officer Sanders's testimony was inconsistent and suggested something impossible. To the contrary, Officer Sanders's description of events matches the video evidence and the testimony of the other officers. Consequently, Ross has not identified any problems with Officer Sanders's testimony that would permit this Court to disregard the jury's resolution of the dispute over whether Officer Sanders did in fact see Ross take a gun out of his pocket and toss it down where the gun was found moments later. See id. Thus, Ross's convictions were not against the great weight of the evidence.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Ross argues that his trial counsel was ineffective because (1) she failed to request the model jury instruction used when a defendant's identity is an issue at trial and (2) counsel failed to effectively cross-examine Adams. We disagree with both arguments.
A. STANDARD OF REVIEW
Regardless of whether a claim of ineffective assistance is properly preserved, if the trial court did not hold a Ginther hearing, "our review is limited to the facts on the record." People v Wilson, 242 Mich.App. 350, 352; 619 N.W.2d 413 (2000). "A claim of ineffective assistance of counsel is a mixed question of law and fact. A trial court's findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." People v Petri, 279 Mich.App. 407, 410; 760 N.W.2d 882 (2008).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). No Ginther hearing was held in this case.
B. ANALYSIS
A "defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel." People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. [People v Lockett, 295 Mich.App. 165, 187; 814 N.W.2d 295 (2012) (citations omitted).]The "reasonable probability" standard can be satisfied by less than a preponderance of the evidence. People v Trakhtenberg, 493 Mich. 38, 56; 826 N.W.2d 136 (2012). Additionally, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland v Washington, 466 U.S. 668, 697; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984).
The "reviewing court must not evaluate counsel's decisions with the benefit of hindsight," but should "ensure that counsel's actions provided the defendant with the modicum of representation" constitutionally required. People v Grant, 470 Mich. 477, 485; 684 N.W.2d 686 (2004), citing Strickland, 466 U.S. at 689. "Defense counsel is given wide discretion in matters of trial strategy because many calculated risks may be necessary in order to win difficult cases." People v Unger, 278 Mich.App. 210, 242; 749 N.W.2d 272 (2008). Defense counsel may decide, for example, "not to object to an obvious error" for "strategic reasons." Randolph, 502 Mich. at 12. Thus, there is a "strong presumption that trial counsel's performance was strategic," and "[w]e will not substitute our judgment for that of counsel on matters of trial strategy." Unger, 278 Mich.App. at 242-243.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. [Strickland, 466 U.S. at 689 (citation omitted).]
"Yet a court cannot insulate the review of counsel's performance by calling it trial strategy." Trakhtenberg, 493 Mich. at 52. "The inquiry into whether counsel's performance was reasonable is an objective one and requires the reviewing court to determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." People v Vaughn, 491 Mich. 642, 670; 821 N.W.2d 288 (2012) (quotation marks and citation omitted). Accordingly, the reviewing court must consider the range of potential reasons that counsel might have had for acting as he or she did. Id.
Furthermore, with regard to prejudice, as noted, to obtain a new trial on ineffective assistance grounds, a defendant must show that "there is a reasonable probability that, but for counsel's errors, a different outcome would have resulted." People v Jackson, 292 Mich.App. 583, 600-601; 808 N.W.2d 541 (2011). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." People v Chenault, 495 Mich. 142, 150-151; 845 N.W.2d 731 (2014). (quotation marks and citation omitted). To meet this standard, a defendant does not have to show that the evidence would have ensured acquittal, id., nor is a defendant even required to show that counsel's failure more likely than not altered the outcome, Harrington v Richter, 562 U.S. 86, 112; 131 S.Ct. 770; 178 L.Ed.2d 624 (2011). Nevertheless, "[t]he likelihood of a different result must be substantial, not just conceivable." Id. "[W]here there is relatively little evidence to support a guilty verdict to begin with (e.g., the uncorroborated testimony of a single witness), the magnitude of errors necessary for a finding of prejudice will be less than where there is greater evidence of guilt." Trakhtenberg, 493 Mich. at 56.
1. JURY INSTRUCTIONS
Ross first argues that defense counsel should have asked the trial court to instruct the jury with M Crim JI 7.8. Ross had the right to a properly instructed jury. People v Dobek, 274 Mich.App. 58, 82; 732 N.W.2d 546 (2007). And, if a model instruction properly states the law and applies to the facts of the case, the trial court must give the instruction upon request. See People v Rosa, 322 Mich.App. 726, 739; 913 N.W.2d 392 (2018). M Crim JI 7.8 provides:
(1) One of the issues in this case is the identification of the defendant as the person who committed the crime. The prosecutor must prove beyond a reasonable doubt that the crime was committed and that the defendant was the person who committed it.
(2)In deciding how dependable an identification is, think about such things as how good a chance the witness had to see the offender at the time, how long the witness was watching, whether the witness had seen or known the offender before, how far away the witness was, whether the area was well-lighted, and the witness's state of mind at that time.
(3)Also, think about the circumstances at the time of the identification, such as how much time had passed since the crime, how sure the witness was about the identification, and the witness's state of mind during the identification.
[(4) You may also consider any times that the witness failed to identify the defendant, or made an identification or gave a description that did not agree with (his / her) identification of the defendant during trial.]
(5) You should examine the witness's identification testimony carefully. You may consider whether other evidence supports the identification, because then it may be more reliable. However, you may use the identification testimony alone to convict the defendant, as long as you believe the testimony and you find that it proves beyond a reasonable doubt that the defendant was the person who committed the crime. [Brackets in original.]
As stated earlier, identity is an element of every offense. See Yost, 278 Mich.App. at 356. As such, the prosecution had to prove beyond a reasonable doubt that Ross was the man who assaulted Adams with the intent to rob while armed. The prosecution also had to prove, in relevant part, that Ross carried or possessed a firearm to establish the various weapons charges. Because Ross's identity was at issue, had defense counsel requested M Crim JI 7.8, the trial court would have been obligated to give it. See Rosa, 322 Mich.App. at 739. Nevertheless, the mere fact that the instruction would have been given had it been requested does not establish that the failure to request the instruction fell below an objective standard of reasonableness under prevailing professional norms.
As the prosecution correctly notes, the trial court instructed the jury that the prosecution had to prove Ross's identity as the perpetrator for each of the charged crimes. Furthermore, the trial court instructed the jury about the different considerations for evaluating witness testimony, which covered many of the same points stated under M Crim JI 7.8. It also was clear from the parties' closing arguments that identity was a key element for both the prosecution and the defense cases. Indeed, the parties argued extensively about whether Adams accurately identified Ross as his assailant and whether Officer Sanders really saw Ross throw a gun. The court's instructions and the parties' arguments left the jury well aware that it had to determine whether Adams correctly identified Ross as the man who tried to rob him and also had to evaluate whether Officer Sanders actually saw Ross toss a firearm. Consequently, the trial court properly instructed the jury on all the elements, provided it with relevant guidance on evaluating witness credibility, and the parties argued the evidence and the inferences to be drawn from the evidence as it applied to the instructions.
Because the instructions fairly presented the issues to be tried, defense counsel might have reasonably concluded that an additional instruction on identity was not necessary or helpful. A reasonable defense lawyer might simply have felt that fewer instructions were preferable to detailed but redundant instructions. A reasonable defense lawyer might also have felt that the additional emphasis provided by M Crim JI 7.8(5), for example, might cause the jury to more carefully consider the circumstances surrounding Adams's encounter with his assailant and cause the jury to conclude that it was more likely that Adams accurately identified his attacker. The evidence showed that Adams had a brief terrifying encounter, but the testimony also showed that Adams's attacker held him at gunpoint in close proximity and instructed him to empty his pockets. The attacker also ordered Adams to thank him for not killing him. A jury considering this evidence as instructed by M Crim JI 7.8(5) might conclude that anyone who experienced such an event would have a clear recollection of his assailant's face. For that reason, a reasonable defense lawyer might have preferred to rely on the standard instructions and emphasize the inconsistencies in Adams's description of the coat and bike, and concentrate on the possibility that officers might have inadvertently suggested that Adams should identify Ross. Because we can conceive of a legitimate strategic reason for defense counsel's decision not to request the instruction, this record cannot permit us to conclude, as a matter of law, that defense counsel's omission fell below an objective standard of reasonableness under prevailing professional norms. See Unger, 278 Mich.App. at 242.
For similar reasons, Ross has not shown that defense counsel's decision not to request the instruction prejudiced his defense. The trial court's instructions covered the element of identity and provided guidance that overlapped with M Crim JI 7.8 in regards to evaluating witnesses. The parties' arguments also squarely required the jury to resolve the dispute over identity and whether Officer Sanders might have been mistaken when he testified that he saw Ross toss a gun. It is very unlikely that, had the trial court instructed the jury consistent with M Crim JI 7.8, the outcome would have been different. Adams emphatically and repeatedly identified Ross as the man who forced him to turn out his pockets at gunpoint. Although Ross's description had inconsistencies, the evidence showed that Adams immediately identified his assailant as a Black man who was riding a bicycle and wearing a green coat and glasses. Ross was discovered riding a bicycle not long after the incident while wearing a green coat and glasses. Additionally, the evidence showed that Ross pulled a gun from his pocket and tossed it away when an officer performed a U-turn and pulled up next to him. The evidence as a whole strongly supported Adams's identification. Therefore, it was not reasonably probable that the jury would suddenly reject Adams's testimony as incredible simply because the trial court provided a more detailed instruction on evaluating identification testimony. See Lockett, 295 Mich.App. at 187.
2. CROSS-EXAMINATION OF ADAMS
Ross next argues that defense counsel's cross-examination of Adams fell below an objective standard of reasonableness under prevailing professional norms. He further maintains that, as a result of her failure to properly cross-examine Adams, it was incumbent on defense counsel to recall Adams, but that she then failed to secure his presence.
The record shows that defense counsel cross-examined Adams during the prosecution's case and obtained testimony that fit the defense's theory of the case. During cross-examination, Adams admitted that it was not uncommon to see cyclists in the winter when there was no snow, which was the case on the night at issue. Adams also admitted that he had seen others at the gas station before he started walking back down Michigan street, and defense counsel cross-examined Adams about his statement that he had seen Ross as many as five minutes before the attempted robbery. That testimony established that Adams might have seen Ross at some earlier point, such as at the gas station, which would explain why his features stood out to him. The testimony also established that there were others around even though it was early in the morning.
Defense counsel also examined Adams at length about his description of his assailant. During cross-examination, Adams initially denied that he described his assailant's jacket as camouflage and then admitted that he described it in that way. Defense counsel also elicited testimony that Adams did not recall other details about his assailant's description-such as whether he wore anything on his head or the appearance of his hair. She additionally questioned him about the bike that his assailant rode. She established that Adams could not recall various details about the bike and that the details he did describe differed from the bike that Ross was found riding later that morning. She also successfully admitted an excerpt of the preliminary examination testimony showing that Adams's testimony from the preliminary examination differed from his trial testimony.
Defense counsel also established that Adams's trial testimony about the specific details of the incident was inconsistent with his testimony at the preliminary examination; notably, she established that he had earlier testified that the assailant touched the handgun to Adams's chest, which Adams denied at trial, and she established that there was some possible confusion about the location of the attempted robbery. Defense counsel elicited testimony from Adams that-although it was not particularly persuasive-allowed her to argue that officers might have inadvertently caused Adams to identify Ross as his assailant. Accordingly, defense counsel set up the evidentiary basis for arguing that Ross could not have been Adams's assailant because Ross's appearance differed somewhat from what Adams described, Ross was found to be riding a bike some distance from the location of the attempted robbery, and his bike was inconsistent with Adams's description of the bike used by his assailant. She further established the basis for arguing that Adams only identified Ross because Ross had been arrested and appeared at the preliminary examination. As a whole, defense counsel's cross-examination was effective and consistent with the defense theory of the case.
Notwithstanding that defense counsel effectively cross-examined Adams, Ross maintains that the record shows that defense counsel's cross-examination was deficient because she stated on the record that she intended to question Adams further during the defense case-in-chief. The record, however, does not establish that defense counsel's decision to hold some questions for later fell below an objective standard of reasonableness and prejudiced Ross.
After the prosecution rested its case on the third day, Wednesday, defense counsel discussed the time that she would need to put on her case and informed the trial court that she had asked victim services to have Adams return on Thursday morning. The trial court worried that this would take an additional day because victim services stated that it could not get Adams back into court until the next morning; nevertheless, it agreed that no rule prevented defense counsel from recalling Adams. The prosecutor also stated that it was his understanding that Adams would be present later on the third day of trial. Defense counsel later stated that she still intended to call Adams-at least in part on Ross's request-and that she expected it to be a very brief examination. Adams never returned to the courtroom, however, so defense counsel was unable to ask any new questions.
Defense counsel told the trial court that she wanted to further question Adams about the lineup at which he identified Ross as his assailant, his assailant's bike, and his assailant's appearance. But the record permits an inference that defense counsel was satisfied with her cross-examination and only decided to recall Adams for further questioning at Ross's insistence. As such, it is not clear on the record that defense counsel's decision to end her cross-examination when she did and to later recall Adams amounted to a strategic decision. We need not answer that question here, however, because Adams was plainly not prejudiced by defense counsel's actions. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.").
Defense counsel thoroughly cross-examined Adams during the prosecution's case-in-chief. As discussed earlier, when doing so, she effectively made multiple points beneficial to the defense. Ross now argues that he was prejudiced by defense counsel's failure to ask a handful questions. But there was a significant probability that Adams's answers would have harmed the defense rather than helped it. Adams already testified that he was certain about his identification of Ross as his assailant at the lineup. Accordingly, asking him further questions about the lineup-absent some unknown surprise evidence-likely would have only served to emphasize the certainty with which Adams identified Ross. The same might have been true about any examination concerning the picture of the bike. That line of questioning hinged on Adams admitting that the bike depicted in the picture was not the same bike that his assailant rode. But there was a distinct possibility that Adams would have looked at the picture and identified that bike as the same bike that his assailant rode. And even if he did not, there was no reason to believe that his testimony would have so undermined the other evidence supporting his identification of Ross that the outcome would have been different. Indeed, the evidence before the jury already established that Adams did not describe the bike Ross was found with. Finally, we cannot see how questioning Adams about his assailant asking Adams to thank him at the conclusion of the robbery would have helped Ross's case. Thus, defense counsel's failure to ask Adams the complained of questions did not lead to "a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." See Lockett, 295 Mich.App. at 187. Consequently, defense counsel was effective.
IV. PROSECUTORIAL MISCONDUCT
Ross argues that the prosecutor committed misconduct requiring a new trial by (1) vouching for the credibility of Adams and his girlfriend during closing arguments, and (2) calling Ross a "coward" during closing arguments. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
"In order to preserve an issue of prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction." People v Bennett, 290 Mich.App. 465, 475; 802 N.W.2d 627 (2010). Ross failed to do so. Thus, the issue is unpreserved. As explained earlier, unpreserved issues are reviewed for plain error. Cain, 498 Mich. at 116.
B. ANALYSIS
Due process requires the prosecution to prove every element of a charged crime beyond a reasonable doubt. U.S. Const, Am XIV; People v Eason, 435 Mich. 228, 233; 458 N.W.2d 17 (1990). When evaluating allegations of prosecutorial misconduct, the test is whether a defendant was denied a fair and impartial trial. Dobek, 274 Mich.App. 63. "The cumulative effect of several errors can constitute sufficient prejudice to warrant reversal even when any one of the errors alone would not merit reversal, but the cumulative effect of the errors must undermine the confidence in the reliability of the verdict before a new trial is granted." Id. at 106. "Issues of prosecutorial misconduct are decided case by case, and this Court must examine the entire record and evaluate a prosecutor's remarks in context." Id. at 64.
A prosecutor may not vouch for the credibility of a witness by insinuating that the prosecutor has some special knowledge that the witness is testifying truthfully. People v Bahoda, 448 Mich. 261, 276; 531 N.W.2d 659 (1995). Nevertheless, the prosecutor may argue from the facts of the case that the witness should be believed. People v Seals, 285 Mich.App. 1, 22; 776 N.W.2d 314 (2009). The test for prosecutorial misconduct is whether the prosecutor's remarks deprived the defendant of a fair trial. See Bahoda, 448 Mich. at 267 & n 7.
Ross first complains that the prosecutor vouched for Adams's credibility by stating that Adams was praiseworthy. When the cited remarks are read in context, however, as this Court must do, see id. at 266-267, it is evident that the prosecutor's statement did not amount to vouching, but rather involved commentary on the evidence combined with a proper argument that the evidence tended to show that Adams's testimony was credible.
The prosecutor began his closing argument by opining that the evidence of Ross's guilt was overwhelming and stating that it was implausible to conclude that Ross was simply in the wrong place at the wrong time. The prosecutor argued that evidence showed that it was not the case that Adams was mistaken or that Ross was identified simply because he was an African-American who happened to be in the area. Instead, the prosecutor maintained that Adams identified Ross as his assailant because Ross was in fact his assailant:
And all week, you heard the testimony and we heard from Mr. Adams first. He was the victim in this case, and I applaud him for standing in that seat and getting in front of Mr. Ross and telling us what he heard. He's a homeless guy, as you heard. He's not out any money. He's not out any expensive jewelry. He's not going to get some financial windfall for coming in here and testifying.
You heard him. He said that, I don't want Mr. Ross to do this to somebody else. And I applaud him for doing that. I wish more people were like Mr. Adams. He came in and testified. [Emphasis added.]
The prosecutor also opined that there was no evidence that Adams or his girlfriend, Desany McKibben, had a motive to lie, and he maintained that the jury should not fault Adams for leaving the hospital and returning to McKibben. The prosecutor explained:
You heard Desany McKibben, Mr. Adams' girlfriend. When he got back, he [Adams] was emotional. He couldn't speak. He was crying, and he said that he was robbed at gunpoint.
She didn't have a reason to come in here and lie. Mr. Adams doesn't have a reason to come in here and lie.
Yes. Mr. Adams didn't know what to do. He said he freaked out-I've never gone through this before. And unfortunately, the only thing he had to do was go back to his girlfriend. He wanted to get back to his girlfriend. Only person he knows. Doesn't have any family in the area.
The deputy at the hospital left him. He didn't know what to do. He went to his girlfriend. Two days later he garnered enough courage, and I give him credit for this, he walked up to a police officer at the bus station when they were stationed at the bus lot on Grandville. He gave the same description.
Hey, I didn't know what to do. I left, but I want to make sure that this guy doesn't get away with it. [Emphasis added.]
The prosecutor's comments were grounded in testimony and amounted to proper argument that Adams and McKibben were worthy of belief, notwithstanding that Adams left the hospital on the morning at issue. See People v Thomas, 260 Mich.App. 450, 455; 678 N.W.2d 631 (2004) (holding that it was not improper to argue from the facts that the witness did not have a reason to lie). Adams testified that he was homeless and that he had nothing worth stealing when Ross assaulted him. He also testified that he was terrified as a result of the incident. McKibben similarly testified that Adams continued to suffer emotionally from the incident and was distraught when he returned to her. Yet there was testimony that Adams ran to get help and that he did so in part because he did not want Ross to harm anyone else. There was also evidence that Adams continued to seek help from officers in the days afterward and cooperated with law enforcement even though he was homeless, had nothing to gain, and would have to relive the terrifying experience. On the basis of this evidence, the prosecutor could properly argue that Adams's behavior was commendable and that the evidence showed that Adams did not have a reason to lie or misidentify Ross and that the jury should assess Adams's testimony in light of the circumstances and conclude that Adams was credible. There was nothing improper about this argument. See id.
Ross additionally argues that the prosecutor made improper comments when he referred to Ross as a "coward" in his rebuttal statement. Notably, the prosecutor's comment was in response to defense counsel's argument that Ross's behavior when confronted by Officer Sanders was not consistent with someone who was guilty. Defense counsel suggested instead that Ross behaved the way he did because he was simply riding home and was not guilty of any offense.
In response to that argument, the prosecutor argued that Ross's demeanor during his arrest should not be taken as evidence that he did not have a guilty conscience:
She also mentioned why Mr.-how Mr. Ross reacted after he was arrested. He was calm. He was-his demeanor was calm. He didn't argue. He didn't run. Why cowards like this do what they do when they're arrested, I don't know, but that's how he reacted. I don't know how people like that react after they realize that they are just now getting in trouble and getting arrested for committing an
armed robbery. I don't know how someone is going to react. That's how he reacted.
Aside from opining that Ross was a coward, the prosecutor's remark involved commentary on the evidence that Ross did not try to flee and was otherwise calm during his arrest. The prosecutor remarked that he did not know why Ross reacted the way he did, but implied that his reaction did not undermine the evidence of his guilt. That overall argument was proper response to the defense theory concerning that same evidence. Moreover, even the comment that Ross was a coward had some foundation in the evidence. The evidence showed that Ross approached Adams, distracted him by asking for a lighter, and then pointed a loaded firearm at Adams's chest. He then threatened to kill Adams and-when he discovered that Adams had nothing of value to steal-he tormented Adams by making Adams thank Ross for not killing him. The evidence further showed that Ross disposed of his firearm the moment he was confronted by trained and armed police officers.
Criminal trials are not "basket luncheons" at which the lawyers "pelt[] each other with rose petals." People v Allen, 351 Mich. 535, 544; 88 N.W.2d 433 (1958). And, as this Court has observed, emotional language is an important part of a prosecutor's arsenal, so long as the prosecutor does not exceed proper bounds. People v Ullah, 216 Mich.App. 669, 679; 550 N.W.2d 568 (1996). Given the evidence of how Ross treated Adams and how he reacted to Officer Sanders, the prosecutor could argue that Ross was a coward, even if his opinion was better left unstated. See Allen, 351 Mich. at 544 (recognizing that some comments are "better left unsaid"). Even accepting that it might have been outside the bounds of propriety to call Ross a coward, the prosecutor's remark was isolated and did not involve a particularly egregious ad hominem attack. Had defense counsel objected to the remark, the trial court could readily have cured any prejudice occasioned by the remark. See Ullah, 216 Mich.App. at 679 (stating that a remark will not warrant relief if a curative instruction could have cured it). Additionally, whatever prejudicial effect the comment may have had was harmless in light of the evidence tending to establish Ross's guilt. See People v Launsburry, 217 Mich.App. 358, 361; 551 N.W.2d 460 (1996) (holding that "the prosecutor went beyond proper comment" by calling the defendant a "moron," "idiot," and "coward," but concluding that the remarks were harmless given the evidence). Ross has not shown that the prosecutor's remarks amounted to plain outcome-determinative error. See Carines, 460 Mich. at 763.
Ross also has not shown that defense counsel's failure to object to any of these comments amounted to ineffective assistance. All the remarks, with the possible exception that Ross was a coward, amounted to proper commentary and argument premised on the evidence. Thus, any objection by defense counsel would have been futile. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel."). Additionally, given the mildly derogatory nature of the prosecutor's comment that Ross was a coward, and the isolated use of that label, a reasonable defense lawyer could conclude that it was better to refrain from objecting and requesting an instruction that would only have served to highlight the remark. As such, the decision not to object was within the objective range of reasonable professional representation. See Unger, 278 Mich.App. at 242-243. Moreover, on this record, even if it could be said that no reasonable defense lawyer would have refrained from objecting to the prosecutor's remark that Ross was a coward, there is no possibility that, but for defense counsel's failure to object, the outcome would have been different. See id.
Ross has not shown that the prosecutor engaged in misconduct that warrants a new trial or that defense counsel's failure to object to the prosecutor's remarks amounted to ineffective assistance.
V. CUMULATIVE ERROR AND CONSECUTIVE SENTENCING
Finally, Ross argues that the cumulative effect of the errors warrants a new trial, even if no one error warrants a new trial. He also claims that the trial court erred when it ordered him to serve his sentences in lower court case 19-001256-FH consecutively to his sentences in lower court case 19-001257-FC without any statutory authority to do so.
As explained by this Court in People v LeBlanc, 465 Mich. 575, 591 n 12; 640 N.W.2d 246 (2002),
individual claims of error either have merit or they do not. A ruling or action that is almost wrong does not become an error on the ground that, in the same case, other rulings or actions were almost wrong, too. Thus, "cumulative error," properly understood, actually refers to cumulative unfair prejudice, and is properly considered in connection with issues of harmless error.Consequently, "[o]nly the unfair prejudice of several actual errors can be aggregated" to establish cumulative error requiring reversal." Id.
Ross has not successfully demonstrated that there were any actual errors whose aggregate prejudice might warrant a new trial. Even assuming that the prosecutor engaged in misconduct when he called Ross a coward, that comment was only minimally prejudicial and did not by itself warrant a new trial. There were no other errors whose prejudice might be aggregated with the minimal prejudice occasioned by the remark. Accordingly, Ross has not shown that the cumulative effect of actual errors undermined confidence in the reliability of the jury's verdict. See id.
As for Ross's sentencing claim, the trial court amended the judgment of sentence about which he complains and removed the consecutive sentencing provision. Therefore, there is no sentencing error to review.
VI. CONCLUSION
We affirm Ross's convictions and sentences for the reasons stated in this opinion.