STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 22, 2015
Plaintiff-Appellee,
v No. 322142
Wayne Circuit Court
CLARENCE BROWN, LC No. 13-010118-FH
Defendant-Appellant.
Before: FORT HOOD, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of felon in possession of a firearm,
MCL 750.224f, carrying a concealed weapon, MCL 750.227, and possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant to three years’ probation for the felon in possession of a firearm and carrying a
concealed weapon convictions, and two years’ imprisonment for the felony-firearm conviction.
We affirm.
This case arises from a report of shots fired in an area where Detroit Police Officers
Edward Hicks and Thomas Houston were located. Hearing five or six shots coming from an
unknown location, the officers began canvassing the area. After traveling about three blocks
west, they came upon two men standing on the sidewalk. Houston pulled the car over to the side
of the road, and Hicks rolled down his window, intending to ask the men for information
regarding the shots. Both officers testified that one of the men, later identified as defendant,
immediately grabbed the waistband of his pants and took off running to a nearby residence.
Suspicious of the unprovoked flight, Hicks ran after defendant, grabbing the outside handle of
the residence’s door just as defendant was grabbing the inside handle in an attempt to lock Hicks
out. Seconds later, defendant pushed the door at Hicks and ran back outside before jumping off
the porch. According to Hicks, defendant removed a handgun from the waistband of his pants as
he ran and tossed it with one hand before slipping and falling on the grass. Houston, who had
exited the vehicle after Hicks, handcuffed defendant while Hicks searched the area. Hicks found
the handgun atop an electrical meter, which was directly in front of the residence out of which
defendant had run.
On appeal, defendant first argues that the evidence presented at trial was insufficient to
support his convictions. We disagree.
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Challenges to the sufficiency of the evidence are reviewed de novo to “determine
whether any rational trier of fact could have found that the essential elements of the crime were
proven beyond a reasonable doubt.” People v Russell, 297 Mich App 707, 721; 825 NW2d 623
(2012) (citation omitted). “This Court reviews the evidence in the light most favorable to the
prosecution.” Id. This Court will not interfere with the jury’s role to determine the weight of the
evidence or the credibility of witnesses in evaluating the sufficiency of the evidence. People v
Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010).
Defendant was charged with carrying a concealed weapon, felon in possession of a
firearm, and felony-firearm. Defendant asserts only that there was insufficient evidence to show
that he possessed a firearm, an element common to all three charges. MCL 750.224f; MCL
750.227; MCL 750.227b. “Possession can be established with circumstantial or direct evidence,
and the ultimate question of possession is a factual inquiry to be answered by the jury.” People v
Flick, 487 Mich 1, 14; 790 NW2d 295 (2010) (internal citations and quotations omitted). The
testimony of Hicks and Houston supported the jury’s conclusion that defendant possessed a
firearm. Hicks and Houston both testified that they had seen defendant grab the waistband of his
pants and run away from their police cruiser in a well-lit area. According to the officers,
grabbing one’s waistband is typical behavior of someone concealing a handgun. Hicks further
testified that he again saw defendant holding the waistband of his pants while Hicks struggled
with defendant over the door, and that he watched defendant toss the gun as defendant was
fleeing from the porch. This testimony was sufficient to establish possession. We disagree with
defendant’s argument that Hicks’s testimony regarding defendant’s “tossing” of the weapon was
so incredible that the jury was not justified in finding sufficient evidence of defendant’s guilt. It
is well-established that credibility determinations are within the purview of the jury, and this
Court will not second guess those determinations on appeal. Bennett, 290 Mich App at 472.
Viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence
presented for a rational trier of fact to find the essential element of possession proven beyond a
reasonable doubt.
Defendant also argues that, even if the evidence was sufficient to support his convictions,
the jury’s verdicts were against the great weight of the evidence, and the trial court abused its
discretion when it denied his motion for a new trial. We disagree. “We review for an abuse of
discretion a trial court’s grant or denial of a motion for a new trial on the ground that the verdict
was against the great weight of the evidence.” People v Lacalamita, 286 Mich App 467, 469;
780 NW2d 311 (2009). A verdict is against the great weight of the evidence when “the evidence
preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the
verdict to stand.” Id.
Defendant argues, similar to his sufficiency claim, that the jury verdict was against the
great weight of the evidence with respect to defendant’s possession of the firearm. While
defendant asserts that the verdict was “surprising” and that Hick’s story was “hard to believe,” it
is well-established that the existence of “[c]onflicting testimony, even when impeached to some
extent, is an insufficient ground for granting a new trial.” Id. at 469-470. “Further, the
resolution of credibility questions is within the exclusive province of the jury.” Id. at 470.
Unless it can be said that the testimony was “so far impeached that it was deprived of all
probative value or that the jury could not believe the testimony, or the testimony contradicted
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indisputable physical facts or defied physical realities,” the trial court must defer to the jury’s
determination. Id. (internal quotation marks and citations omitted).
We do not agree that the verdict was against the great weight of the evidence. While
Hicks’s testimony was not directly corroborated, his account of the handgun landing atop the
electrical meter after defendant tossed it aside was not impossible to believe. While it may have
been an improbable or unusual circumstance, Hicks’s testimony did not contradict indisputable
physical facts or defy physical realities. Id. Thus, it cannot be said that the evidence
preponderated so heavily against the verdict that it would be a miscarriage of justice to let the
verdict stand. Id. at 469.
Next, defendant argues that he was deprived of his constitutional right to effective
assistance of counsel. We disagree.
Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law. People v Lockett, 295 Mich App 165, 186; 814 NW2d
295 (2012). The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id., citing People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). Defendant preserved this issue by filing a motion for a new trial with the
trial court, which the court denied. People v Sabin (On Second Remand), 242 Mich App 656,
658; 620 NW2d 19 (2000). However, the trial court did not hold an evidentiary hearing, so our
review is limited to the facts on the record. People v Chapo, 283 Mich App 360, 369; 770
NW2d 68 (2009), citing People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).
“To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong, 490 Mich 281, 289-290;
806 NW2d 676 (2011). “To demonstrate prejudice, a defendant must show the probability that,
but for counsel’s errors, the result of the proceedings would have been different.” Nix, 301 Mich
App at 207. “A defendant must meet a heavy burden to overcome the presumption that counsel
employed effective trial strategy.” People v Payne, 285 Mich App 181, 190; 774 NW2d 714
(2009).
Defendant raises several instances of alleged ineffective assistance of counsel. First,
defendant claims he was deprived the effective assistance when his trial counsel failed to excuse
a juror who had expressed a bias in favor of police witnesses. We disagree. At trial, the
challenged juror expressed his belief that police witnesses might be more believable than the
average witness because they have nothing to gain or lose through the offer of testimony. This
Court acknowledges that, in a case such as the one before us, turning solely on the testimony of
police officers, a juror’s potential bias in favor of police witnesses should be carefully
scrutinized. However, “[p]erhaps the most important criteria in selecting a jury include a
potential juror’s facial expressions, body language, and manner of answering questions.” People
v Unger, 278 Mich App 210, 258; 749 NW2d 272 (2008), citing People v Robinson, 154 Mich
App 92, 94-95; 397 NW2d 229 (1986). As a reviewing Court, we “cannot see the jurors or listen
to their answers to voir dire questions.” Unger, 278 Mich App at 258 (citation omitted). “For
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this reason, this Court has been disinclined to find ineffective assistance of counsel on the basis
of an attorney’s failure to challenge a juror.” Id.
Here, we conclude that defense counsel was in a much better position to evaluate the
potential prejudice of the juror’s expressed bias. While the record is unclear as to whether the
potential juror responded to trial counsel’s specific questioning, or whether the juror provided
any gestures or verbal cues in response, the juror agreed to follow the law as provided when
asked by the judge. Further, as noted by the trial court, the potential juror provided other
answers which may have likely caused defense counsel to believe that the juror may be favorable
to defendant. “A lawyer’s hunches, based on observations, may be as valid as any method of
choosing a jury,” id., and we see no reason to question the presumption that trial counsel’s voir
dire decisions represented sound trial strategy, People v Johnson, 245 Mich App 243, 259; 631
NW2d 1 (2001).
Second, defendant claims that his trial counsel was ineffective when he failed to
reasonably investigate and obtain photographs of the crime scene. “Trial counsel is responsible
for preparing, investigating, and presenting all substantial defenses . . . ,” meaning defenses that
may have affected the outcome of the trial. Chapo, 283 Mich App at 371. The failure to conduct
an adequate investigation constitutes ineffective assistance if it undermines the confidence in the
outcome of the trial. Russell, 297 Mich App at 716. Defendant claims that trial counsel’s failure
to investigate and obtain pictures of the scene deprived defendant of his constitutional right to
effective assistance of counsel because photographs of the electrical meter that defendant
allegedly threw the firearm on to would have discredited Hicks’s testimony. There is some merit
to defendant’s claim that trial counsel failed to conduct a reasonable investigation. Trial counsel
heard Hicks’s version of the incident at defendant’s preliminary examination, and would have
reasonably concluded that the size and shape of the electrical meter would have some bearing on
the case. An objectively reasonable investigation would have included, at least, a visual
comparison of the handgun and the electrical meter. Because appellate counsel was unable to
reach trial counsel for purposes of this appeal, it is impossible to know if such a visual inspection
took place. However, it is unnecessary to draw a conclusion on the reasonableness of trial
counsel’s investigation because defendant has not shown that, but for trial counsel’s failure to
provide pictures of the electrical meter, the outcome at trial would have been different. During
direct examination, Hicks used qualifying phrases while referring to the meter. The jury was
exposed to Hicks’s uncertainty as to the measurements, which trial counsel had an opportunity to
highlight both during cross-examination and in his closing argument. In addition, as noted by
the prosecution, trial counsel argued at trial that the electrical meter had an uneven surface, and it
would be implausible for the handgun to land there. Accordingly, we do not agree that the
introduction of photographs would have affected the outcome at trial by a reasonable probability.
Third, defendant argues that trial counsel was ineffective for neglecting to call Crystine
Small, an eyewitness who had been sitting in a parked car in the residence’s driveway, to testify
on his behalf. “Decisions regarding whether to call or question witnesses are presumed to be
matters of trial strategy.” Id. Trial counsel’s failure to a call a witness is only considered
ineffective assistance if it deprived the defendant of a substantial defense. Id. “A substantial
defense is one that might have made a difference in the outcome of the trial.” Chapo, 283 Mich
App at 371.
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Defendant asserts that Small’s testimony may have “tipped the scale” in favor of
defendant. Based on Small’s affidavit, it appears that Small’s testimony may have impeached
Hicks’s testimony to some degree, but we do not agree that the impeachment value of the
testimony was sufficient to overcome the strong presumption that counsel elected not to present
it as a matter of sound trial strategy. Indeed, defendant acknowledged that trial counsel informed
him of the decision not to call Small after counsel became aware of potentially damaging
statements Small had made during an interview with the prosecution. Although the record is
silent as to what those statements were or how they may have damaged defendant’s case, there is
no evidence that defendant objected to trial counsel’s decision at that time. Accordingly, we
conclude that trial counsel’s decision was strategic, and this Court will not second guess that
decision on appeal. Payne, 285 Mich App at 190; Russell, 297 Mich App at 716.
Fourth, defendant asserts that his trial counsel was ineffective for failure to move for a
directed verdict at the close of the prosecution’s case at trial. We disagree. “Failing 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). As previously
discussed, by the close of the prosecutor’s case, sufficient evidence had been submitted to allow
a rational trier of fact to find defendant guilty of each charge beyond a reasonable doubt.
Further, although the trial court judge expressed skepticism at sentencing regarding the jury’s
guilty verdict, the judge also stated that, “based on the facts and the testimony that they heard, it
was a reasonable conclusion that [the jury] reached.” Accordingly, the judge’s statements at
sentencing do not show that defendant’s motion would have been granted.
Finally, defendant claims that trial counsel was ineffective for failing to object to certain
statements made by the prosecutor during closing arguments. According to defendant, the
prosecutor’s statements that the officers were credible and that Hicks was “honest” and “told the
truth,” constituted improper bolstering of witness credibility. However, “[a] prosecutor may
comment on his own witnesses’ credibility during closing argument,” People v Thomas, 260
Mich App 450, 454; 678 NW2d 631 (2004), so long as he does “not vouch for the credibility of
his witnesses by suggesting that he has some special knowledge of the witnesses’ truthfulness.”
People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Here, when viewing the
prosecutor’s comments in the context of the entire record, People v Dobek, 274 Mich App 58,
64; 732 NW2d 546 (2007), there was no indication that the prosecutor suggested that she had
any special knowledge of Hicks’s credibility. She merely pointed out facts in evidence that
would support the officers’ credibility, and guided the jurors toward that rational inference.
Additionally, these remarks were responsive to defendant’s closing argument, which repeatedly
attacked the believability of the officers’ testimony. Considered in context, and especially in
light of their responsive nature, the prosecutor’s statements were not improper. For these
reasons, defendant’s claim of ineffective assistance on this basis lacks merit.
Defendant argues that while each of trial counsel’s individual errors may not have
resulted in prejudice, the cumulative nature of trial counsel’s errors demonstrates that defendant
was deprived of his constitutional right to a fair trial. “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. However, if the
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defendant has not established any errors, then reversal is not warranted. Id. Accordingly,
defendant is not entitled to relief on this basis.
Defendant next argues that his convictions and sentences for both felon in possession of a
firearm and felony-firearm violate the state and federal constitutional principles against double
jeopardy. The Michigan Supreme Court expressly rejected defendant’s argument in People v
Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003), holding that cumulative punishments for
felon in possession of a firearm and felony-firearm do not violate double jeopardy. A decision of
the Supreme Court is binding on this Court. People v Strickland, 293 Mich App 393, 402; 810
NW2d 660 (2011). Thus, we reject defendant’s argument. We similarly reject defendant’s final
argument on appeal that insufficient evidence existed to support his felony-firearm conviction
because the Legislature did not intend to allow a felon in possession of a firearm charge to act as
an underlying felony for purposes of felony-firearm. Contrary to defendant’s claim, in People v
Calloway, 469 Mich 448, 167-168; 671 NW2d 733 (2001), this Court has held that “[b]ecause
[the] defendant’s felon in possession charge unquestionably does not constitute one of the
explicitly enumerated exceptions in the felony-firearm stature, we conclude that the Legislature
clearly intended to permit a defendant charged with felon in possession [of a firearm] to be
properly charged with an additional felony-firearm count.” Id. This Court is bound by its
precedent, MCR 7.215(C)(2), so we reject defendant’s argument accordingly.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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People of Michigan v. Clarence Brown
Combined Opinion