STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 27, 2015
Plaintiff-Appellee,
v No. 320408
Wayne Circuit Court
JOSHUA MARTEZ BROWN, LC No. 12-003348-FC
Defendant-Appellant.
Before: METER, P.J., and WILDER and RONAYNE KRAUSE, JJ.
PER CURIAM.
A jury convicted defendant of second-degree murder, MCL 750.317, assault with intent
to commit murder, MCL 750.83, and possession of a firearm during the commission of a felony,
MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 24 to 50 years
for the murder conviction, 14 to 30 years for the assault conviction, and a consecutive two-year
term of imprisonment for the felony-firearm conviction. Defendant appeals as of right. We
affirm.
Defendant’s convictions arise from a shooting at 19481 West Ferguson Street in Detroit.
Several shots were fired into a house occupied by Almanda Talton and her 12-year-old daughter,
Kadeja Davis. One of the shots struck Davis in her head, causing her death. Defendant was
charged with first-degree premeditated murder, MCL 750.316(1)(a), for the shooting death of
Davis, assault with intent to commit murder with respect to Talton, and felony-firearm. The
prosecution’s theory at trial was that the shooting was related to a dispute over a cell phone that
belonged to defendant’s mother, Heather Brown, and which Talton was suspected of taking from
a tax office where Heather Brown worked. The defense did not dispute that defendant
confronted Talton about the cell phone but argued that there was no evidence that he was the
person who fired the gunshots.
Defendant originally stood trial in August and September 2012. However, the trial court
ordered a mistrial when the jury was unable to reach a unanimous verdict. At defendant’s
second trial in November and December 2013, the jury convicted defendant of the lesser offense
of second-degree murder and the charged offenses of assault with intent to commit murder and
felony-firearm.
I. ISSUES RAISED IN APPELLANT’S BRIEF ON APPEAL
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A. SPEEDY TRIAL
Defendant first argues that he was denied a speedy trial because his first trial began more
than six months after his arraignment, and the retrial began approximately 21 months after his
arraignment. Defendant attributes the most significant delays in the proceedings to the
prosecutor and claims that the delays prejudiced him by causing witnesses’ memories to fade.
However, because defendant neglected to raise the purported speedy trial violation in the trial
court, we review his unpreserved claim only to ascertain if any plain error affected his substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
We conclude that defendant’s substantial rights were not violated in this case. In People v
Borgne, 483 Mich 178, 196-197; 768 NW2d 290 (2009), the court discussed the four steps used
to determine whether an unpreserved claim of error warrants reversal under plain-error review:
First, there must have been an error. Second, the error must be plain, meaning
clear or obvious. Third, the error must have affected substantial rights. This
“generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” The defendant bears the burden of
establishing prejudice. Fourth, the error must have “resulted in the conviction of
an actually innocent defendant” or “seriously affected the fairness, integrity or
public reputation of judicial proceedings . . . ” [citations omitted]
In this appeal, the defendant has the burden to prove prejudice that affected the outcome
of the lower court. Id. In this case, the defendant’s only argument is that the memories of the
witnesses involved faded. Defendant offers no supporting evidence or proof. In People v
Gilmore, 222 Mich App 442, 462; 564 NW2d 158 (1997), the defendant made the same
argument, and this Court stated that “such general allegations of prejudice are insufficient to
establish that he was denied his right to a speedy trial.” Much like Gilmore, the general
allegations in this case do not prove that the delay affected the outcome of defendant’s trial.
Instead, it is a conclusory statement without any support. Therefore, we do not find a sixth
amendment violation.
B. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the prosecutor introduced insufficient evidence to establish
that he fired any gunshots at the victims’ house. Defendant contends that the evidence, at most,
only proved his presence at the door of the victims’ house. This Court reviews de novo a
criminal defendant’s challenge to the sufficiency of the evidence supporting his conviction.
People v Harverson, 291 Mich App 171, 175-177; 804 NW2d 757 (2010); People v Solmonson,
261 Mich App 657, 661; 683 NW2d 761 (2004). In determining whether sufficient evidence
exists “to sustain a conviction, a court must view the evidence in a light most favorable to the
prosecution and 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 Nowack, 462 Mich
392, 399-400; 614 NW2d 78 (2000) (internal quotation and citation omitted). As the Supreme
Court in Nowack, id. at 400, explained:
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The standard of review is deferential: a reviewing court is required to
draw all reasonable inferences and make credibility choices in support of the jury
verdict. The scope of review is the same whether the evidence is direct or
circumstantial. Circumstantial evidence and reasonable inferences arising from
that evidence can constitute satisfactory proof of the elements of a crime.
[Internal quotation and citation omitted.]
“It is for the trier of fact, not the appellate court, to determine what inferences may be fairly
drawn from the evidence and to determine the weight to be accorded those inferences.” People v
Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
A second-degree murder conviction requires proof of “(1) a death, (2) caused by an act of
the defendant, (3) with malice, and (4) without justification or excuse.” People v Roper, 286
Mich App 77, 84; 777 NW2d 483 (2009) (internal quotation and citation omitted). Malice
means “the intent to kill, the intent to cause great bodily harm, or the intent to do an act in
wanton and willful disregard of the likelihood that the natural tendency of such behavior is to
cause death or great bodily harm.” Id. (internal quotation and citation omitted). The elements of
assault with intent to commit murder are (1) an assault, (2) with an actual intent to kill, (3)
which, if successful, would make the killing murder. People v Hoffman, 225 Mich App 103,
111; 570 NW2d 146 (1997). A felony-firearm conviction requires proof that the defendant
possessed a firearm during the commission or attempted commission of a felony. People v
Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998). Defendant does not dispute that there was
sufficient evidence to establish the commission of these offenses. He contests only the
sufficiency of the evidence identifying him as the shooter. A defendant’s identity constitutes an
element of all criminal offenses. People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008).
Defendant argues that, at most, the evidence proved only his innocent presence in his
mother’s red Taurus and his identification as the person who knocked on Talton’s front door.
We disagree.
Talton testified that on the night of January 31, 2012, shortly after she returned home
from her visit to a tax office, she and her daughter were in the living room at her house on West
Ferguson. Talton heard the sound of screeching tires near her house, looked out the living room
window, and saw a burgundy car drive past. Approximately a minute later, Talton heard
knocking on the front door, asked who had knocked, and a man’s voice responded, “Jerrod, from
the tax place.” Talton opened the front door and observed a burgundy car with a spoiler parked
in front of her house, the front passenger door of the car was open, two children were in the
backseat, and defendant was standing on the front porch, less than a foot away from her.
Defendant asked Talton whether she had seen a missing cell phone at the tax office, and Talton
advised defendant that she had discovered a phone in the bathroom and returned it to a male
office manager. Talton also recounted that as she had begun closing the front door, she observed
Heather Brown get out from the driver’s side door of the burgundy car and approach Talton’s
house, while defendant remained standing on the front porch. Talton next heard
indistinguishable conversation between defendant and Heather Brown, which was immediately
followed by seven or eight gunshots, causing her to hide on the living room floor until the
gunshots ceased. Talton conceded that she had closed her front door before the gunfire erupted,
that she did not know who fired a gun, and that she never saw a gun or other weapon in
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defendant’s possession. However, she explained that defendant had been the closest person to
the front door when the shooting started and that she thought defendant was the shooter.
Talton’s neighbors, Jovan Bonga and Brittany Henderson, were conversing on the
sidewalk in front of Bonga’s house when Bonga noticed a red Taurus twice drive down the
street. Bonga observed the Taurus parked in front of Talton’s house, heard the sound of a door
closing on the passenger side of the Taurus closest to Talton’s house, and later saw a person of
an indeterminate gender standing in the grass of Talton’s front yard approximately 10 feet from
her house. A few minutes later, he heard two or three gunshots. He then saw in front of Talton’s
house the gunfire that resulted from three or four more gunshots fired by the same person in
Talton’s front yard. He then saw the shooter get inside the Taurus on the front passenger side.
Bonga added that the gunshots sounded like they all emanated from the same type of gun, and he
denied having seen anyone besides the person who stood in Talton’s front yard.
Henderson testified that she too saw an older-style burgundy Taurus twice drive past on
West Ferguson Street and park in front of Talton’s house. Henderson also saw someone standing
on the sidewalk in front of Talton’s house, who appeared to be a man because of “the way his
body was built.” Henderson saw fire from a gun that the man in front of Talton’s house had
pointed directly at the house. She estimated that she heard and saw five gunshots, and the man
entered the Taurus’s front passenger door before the car drove away. Henderson denied having
seen the Taurus’s driver leave the car.
Sheila Arrington testified that she learned about Heather Brown’s missing cell phone and
drove Heather Brown’s red Taurus, with Cortland Brown who is Heather Brown’s youngest son,
to the tax office where Heather Brown worked. Arrington recounted that Heather Brown and
Courtland Brown left the tax office together, with Heather Brown driving the Taurus and
Arrington and Courtland Brown in the back seat. Defendant later entered the front passenger
seat. Heather Brown advised defendant that she could not find her cell phone. The Taurus
stopped in front of a house on Ferguson Street. Heather Brown yelled at defendant about her
keys. Then Heather Brown and defendant simultaneously left the Taurus, and within the next 10
minutes, while Arrington and Courtland Brown still occupied the back seat of the Taurus,
Arrington heard between one and five nearby gunshots. Defendant then reentered the Taurus’s
front passenger seat, Heather Brown returned to the driver’s seat, and the Taurus drove away.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to
establish defendant’s identity as the shooter beyond a reasonable doubt. The testimony of
Talton, Bonga, Henderson, and Arrington agreed that the Taurus had parked directly in front of
Talton’s house. Talton repeatedly identified defendant as the person who knocked on her door
on the evening of January 31, 2012, and the person closest to her house immediately before the
gunfire began. Although no one testified to having specifically observed defendant leave the
Taurus, Talton’s testimony to seeing the front passenger door of the Taurus standing open when
defendant appeared on the porch was strong circumstantial evidence that he had occupied that
position. Arrington also described defendant’s presence in the front passenger seat of the Taurus
shortly before the shooting. Although Talton never saw defendant fire gunshots at her house,
Bonga and Henderson noticed the sole visible occupant of the Taurus fire the gunshots before
reentering the Taurus’s front passenger door. Henderson repeatedly opined that the shooter
appeared to be a man. To the extent that the jury credited the relevant testimony of these
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witnesses, we cannot revisit that determination. Hardiman, 466 Mich at 428. Therefore, the
record indicates that the evidence was sufficient to sustain a conviction.
C. FAILURE TO CORRECT TESTIMONY
Defendant next argues that Talton attempted to appear more sympathetic by denying that
she purposefully took Heather Brown’s cell phone, and the prosecutor’s failure to correct this
false testimony violated defendant’s entitlement to a fair trial. However, because defendant did
not object or otherwise raise this issue at trial, it is unpreserved and our review is therefore
limited to plain error affecting defendant’s substantial rights. People v Bennett, 290 Mich App
465, 475; 802 NW2d 627 (2010).
In People v Gratsch, 299 Mich App 604, 619-620; 831 NW2d 462 (2013), vacated in part
on other grounds, 495 Mich 876 (2013), this Court summarized the following principles that
govern a defendant’s claim of prosecutorial misconduct premised on the purported introduction
of false evidence:
A defendant’s right to due process guaranteed by the Fourteenth
Amendment is violated when there is any reasonable likelihood that a conviction
was obtained by the knowing use of perjured testimony. Accordingly, a
prosecutor has an obligation to correct perjured testimony that relates to the facts
of the case or a witness’s credibility. When a conviction is obtained through the
knowing use of perjured testimony, a new trial is required only if the tainted
evidence is material to the defendant’s guilt or punishment. So whether a new
trial is warranted depends on the effect the misconduct had on the trial. The entire
focus of the analysis must be on the fairness of the trial, not on the prosecutor’s or
the court’s culpability. [Internal quotations and citation omitted.]
See also People v Smith, ___ Mich ___; ___ NW2d ___ (2015) (Docket No. 148305), slip op at
7. “A prosecutor’s capitalizing on the false testimony . . . is of particular concern because it
reinforces the deception of the use of the false testimony and thereby contributes to the
deprivation of due process.” Id. at 7-8 (internal quotation and citation omitted).
The prosecutor acknowledges on appeal that Talton falsely denied the suggestion that she
stole Heather Brown’s cell phone. The prosecutor then introduced Talton’s confirmation that a
cell phone not belonging to her was found inside her vehicle. The prosecutor also presented
testimony by the police officer who found a cell phone “on the rear floorboard behind the
driver’s seat,” introduced the phone into evidence, and elicited police officer testimony that the
phone found in Talton’s vehicle belonged to Heather Brown. During the prosecutor’s closing
argument, she acknowledged the falsity of Talton’s denial that she had stolen Heather Brown’s
cell phone by stating, “Now, [Talton] may have stolen that cellphone and lied to you about that,
but the real question is whether or not she had a motive to pin something on the defendant.”
Although Talton’s false testimony to having returned Heather Brown’s cell phone related
to the facts of this case and Talton’s credibility, the prosecutor satisfied her obligation to correct
the false testimony. Gratsch, 299 Mich App at 619-620. Defendant has failed to substantiate his
contention that the prosecutor knowingly introduced false testimony by Talton to obtain his
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convictions. Id. Furthermore, defendant has failed to show that the purported false testimony
affected the outcome of this case. Therefore, defendant’s right to a fair trial was not violated.
D. DENIAL OF MOTION TO SUPPRESS
Defendant next argues that because the police did not possess a search warrant when an
officer arrested him, searched him, and seized his cell phone, the trial court erred in failing to
suppress the cell phone and any evidence derived from it. The parties agree that prior to the trial
they contested the validity of the police seizure of defendant’s cell phone at the time of his arrest,
and the trial court ruled that the seizure was constitutionally sound. However, the record does
not reflect that defendant objected to the admissibility of the cell phone’s contents.
This Court reviews de novo issues involving the application of underlying law, including
the application of constitutional provisions. People v Slaughter, 489 Mich 302, 310; 803 NW2d
171 (2011). The Court reviews for clear error a challenge to the trial court’s “factual findings at
a suppression hearing.” Id. We review for plain error unpreserved claims of error. Carines, 460
Mich at 763-764.
Both US Const, Am IV, and Const 1963, art 1, § 11, protect people against unreasonable
searches and seizures. Slaughter, 489 Mich at 310-311. A search that occurs without a warrant
qualifies as unreasonable, unless the circumstances surrounding the search or seizure establish
the existence of probable cause and an exception to the warrant requirement. People v
Barbarich, 291 Mich App 468, 472; 807 NW2d 56 (2011). In People v Chapman, 425 Mich
245, 250-251; 387 NW2d 835 (1986), the Michigan Supreme Court summarized the following
regarding searches incident to lawful arrests:
The exception to the search warrant requirement of the Fourth
Amendment for searches conducted incident to a lawful custodial arrest, was
addressed by the United States Supreme Court in United States v Robinson, 414
US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973). The Court, in Robinson, explained
that “[i]t is the fact of the lawful arrest which establishes the authority to search,”
and held that “in the case of a lawful custodial arrest a full search of the person is
not only an exception to the warrant requirement of the Fourth Amendment, but is
also a ‘reasonable’ search under that Amendment.” Id. at 235. The Court
reasoned that because the lawful arrest “is a reasonable intrusion under the Fourth
Amendment, . . . a search incident to the arrest requires no additional
justification.” Id. The Court emphasized that although “the authority to search
[in such situations is] based upon the need to disarm and to discover evidence, [it]
does not depend on what a court may later decide was the probability in a
particular arrest situation that weapons or evidence would in fact be found upon
the person of the suspect.” Id.
In Robinson, the Court held that the permissible scope of a search incident
to a lawful custodial arrest extends to containers found within the “control area”
of the arrestee . . .
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We conclude that the trial court correctly reversed its initial ruling to suppress a cell
phone recovered inside a pair of pants in defendant’s bedroom1. Defendant’s suggestion that no
search warrant supported the cell phone seizure ignores that a search warrant existed for the
Chatham Street residence where the police arrested defendant on February 1, 2012, and the
search warrant expressly referenced electronic storage media, including cell phones. Further,
defendant does not specifically contest that probable cause existed to support the search warrant.
Even without considering the inevitable discovery doctrine invoked by the trial court2, the court
correctly found the cell phone within the scope of an applicable search warrant. People v King,
297 Mich App 465, 475; 824 NW2d 258 (2012) (affirming a correct result that a trial court
reached for a wrong reason).
Defendant also complains that the police undertook a warrantless review of the contents
of the cell phone found inside the pants in his Chatham Street bedroom. A Detroit police
sergeant and the officer in charge of the shooting investigation testified that he had obtained a
search warrant for the cell phone recovered from the pants in defendant’s Chatham Street
bedroom and took the phone to the “Michigan State Police forensic lab and attempted to get a
forensic dump of the phone.” The sergeant explained that the “Michigan State Police weren’t
able to access the phone because the SIM card was missing and because there was a lock on the
phone, a numeric lock.”
Defendant’s argument ignores that Sergeant Brian Bowser testified that he had obtained a
search warrant before the police attempted to search the contents of this phone and that they
failed to recover any information from it. The prosecutor thus never referenced the contents of
this phone during the trial. The United States Supreme Court’s decision in Riley v California,
___ US ___; 134 S Ct 2473; 189 L Ed 2d 430 (2014), does not apply to the factual circumstances
of this case.3
II. DEFENDANT’S STANDARD 4 BRIEF
1
At the time of arrest, defendant was only wearing boxer shorts. He asked the police if he could
have pants and pointed to the pants in which the cell phone was. The police agreed and found
the cell phone when they searched the pants prior to handing them to defendant. It is clear that
searching the pants in this case falls within the incident to lawful arrest exception. The pants
were soon to be within the control area of defendant and thus required a search to ensure the
safety of the officers. Chapman, 425 Mich 245.
2
If the evidence would have been inevitably obtained, then there is no rational basis for
excluding the evidence from the jury. People v. Stevens, 460 Mich 626, 637; 597 NW2d
53,(1999) disapproved of by Lee v State, 774 A.2d 1183 (Md. Spec. App. 2001). In this case,
the cell phone would have been discovered upon the subsequent search of the home where
defendant was arrested.
3
The issue presented in Riley concerned “whether the police may, without a warrant, search
digital information on a cell phone seized from an individual who has been arrested.” 134 S Ct
at 2480.
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Defendant raises additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
A. TIMELY ARRAIGNMENT
Defendant maintains that the police violated his constitutional right to a timely
arraignment, which must occur no later than 48 hours after his warrantless arrest. He also
contends that before his arraignment the police subjected him to multiple coercive interrogations
intended to obtain his incriminating statements. Defendant neglected to raise any challenge to an
improper delay in his arraignment in the trial court. Accordingly, this issue qualifies as
unpreserved for appellate review. People v Cain, 299 Mich App 27, 48; 829 NW2d 37 (2012),
rev’d in part on other grounds 495 Mich 874 (2013). This Court reviews this unpreserved issue
only to determine if any plain error affected defendant’s substantial rights. Id.
Defendant did not substantiate his assertion that a delay in his arraignment led directly to
the introduction of inadmissible and prejudicial evidence against him. In Cain, id. at 49-50, this
Court summarized the relevant principles concerning a defendant’s undue delay in his
arraignment:
An individual who has been arrested must be brought before a magistrate
for arraignment “without unnecessary delay . . . ” MCL 764.13; MCL 764.26.
When an individual is arrested without a warrant, a prompt arraignment is
particularly important because it provides a judicial determination of probable
cause. A delay of more than 48 hours after arrest is presumptively unreasonable
unless there are extraordinary circumstances. The exclusionary rule applies
whenever a statutorily unlawful detention has been employed as a tool to directly
procure any type of evidence from a detainee. However, while an improper delay
in arraignment may necessitate the suppression of evidence obtained as a result of
that delay, the delay does not entitle a defendant to dismissal of the prosecution.
[Internal quotations and citations omitted.]
A post-arrest delay that exceeds more than 48 hours prior to the arraignment qualifies as
presumptively unreasonable. Cain, 299 Mich App 27. However, even if an excessive delay
intervenes between a warrantless arrest and an arraignment, a defendant must identify with
specificity the evidence that the police purportedly obtained directly from the unlawful detention.
Id. When the defendant fails to identify any evidence the trial court could have suppressed as
directly resulting from an undue delay, “the delay in [the] defendant’s arraignment was not
outcome determinative, and he is not entitled to relief.” Id. at 50.
The parties agree that defendant’s arraignment exceeded the generally reasonable period
of 48 hours after his arrest. However, like the defendant in Cain, id. at 48-49, defendant fails to
substantiate that an unreasonable postarrest delay directly led to the admission of any specific
evidence that prejudiced his substantial rights. Therefore, this claim is without merit.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant finally urges that trial counsel was ineffective for failing to challenge the
felony complaint on the basis that it did not set forth any factual support identifying defendant as
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the shooter. Defendant maintains that the insufficient complaint resulted in the trial court’s
invalid exercise of jurisdiction over him. Defendant also asserts that the trial court should have
suppressed the evidence that the police secured after defendant’s unlawful arrest. However,
because defendant did not pursue an ineffective assistance of counsel claim in the trial court, our
review of this issue “is limited to mistakes apparent on the record.” People v Rodriguez, 251
Mich App 10, 38; 650 NW2d 96 (2002).
To establish ineffective assistance of counsel, defendant must demonstrate that his
counsel’s performance fell below an objective standard of reasonableness and that counsel’s
representation so prejudiced defendant that he was deprived of a fair trial. People v Pickens, 446
Mich 298, 302-303; 521 NW2d 797 (1994). With respect to the prejudice aspect of the test for
ineffective assistance, defendant must demonstrate a reasonable probability that but for counsel’s
errors the result of the proceedings would have differed. Id. at 312, 326-327; People v Rodgers,
248 Mich App 702, 713-714; 645 NW2d 294 (2001).
Defendant has failed to substantiate ineffective assistance of counsel. A criminal
complaint serves to “initiate[] the judicial phase of the prosecution and provide[] a basis for the
issuance of an arrest warrant.” People v Burrill, 391 Mich 124, 128; 214 NW2d 823 (1974).
Concerning the substance of a criminal complaint, MCR 6.101 provides:
(A) A complaint is a written accusation that a named or described
person has committed a specified criminal offense. The complaint must include
the substance of the accusation against the accused and the name and statutory
citation of the offense.
(B) The complaint must be signed and sworn to before a judicial
officer or court clerk . . .
The complaint in this case contained the following details: (1) the date of the offenses,
January 31, 2012; (2) the location where the offenses occurred, 19481 Ferguson Street in Detroit;
(3) the charge of first-degree premeditated murder, MCL 750.316(1)(a), for defendant’s killing
of Kadeja Davis “deliberately, with the intent to kill, and with premeditation”; (4) the charge of
assaulting Talton with the intent to kill her; (5) the count alleging defendant’s violation of the
felony-firearm statute by using a handgun during his killing of Davis and assault of Talton; and
(6) an assistant prosecutor’s signature based on “info[rmation] and belief.” We conclude that the
complaint satisfied the requirements in MCR 6.101(A) and (B), and served to properly
commence the judicial proceedings against defendant. Burrill, 391 Mich at 128; Cain, 299 Mich
App at 52.
With respect to the role of the complaint as the basis for an arrest warrant, MCL 764.1(1)
provides that a judge or magistrate may issue a felony warrant for a person’s arrest only if the
prosecutor has filed a signed authorization “allowing the issuance of the warrant.” Pursuant to
MCL 764.1a(1), a magistrate may “issue a warrant upon presentation of a proper complaint
alleging the commission of an offense and a finding of reasonable cause to believe that the
individual accused in the complaint committed that offense.” According to MCL 764.1a(2), a
reasonable cause finding may rest on “1 or more of the following: . . . (a) Factual allegations . . .
contained in the complaint[,]” “(b) The complainant’s sworn testimony[,]” “(c) The
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complainant’s affidavit[,]” or “(d) Any supplemental sworn testimony or affidavits of other
individuals presented by the complainant or required by the magistrate.” The Michigan Court
Rules similarly authorize the issuance of an arrest warrant “if presented with a proper complaint
and . . . the court finds probable cause to believe that the accused committed the alleged
offense.” MCR 6.102(A). The court rules also specify that a probable cause finding can “be
based on hearsay evidence . . . ” MCR 6.102(B).
The February 4, 2012 felony warrant contained information identical to the allegations in
the complaint and the following assertion immediately above the magistrate’s signature: “Upon
examination of the complaining witness, there is probable cause to believe that the offense
charged was committed and the Defendant committed the offense.” The allegations in the
complaint and warrant formed a reasonable basis for a belief that defendant committed the
charged offenses. Cain, 299 Mich App at 52.
But even assuming that the complaint contained inadequate detail to justify the issuance
of an arrest warrant, defendant would have no right to relief. As explained in Burrill, 391 Mich
at 132-134:
While the inadequacies of the complaint—the conclusory form of the
allegations and the failure to state the underlying or operative facts—and the
magistrate’s failure to examine witnesses did not vitiate the efficacy of the
complaint as the document initiating judicial proceedings or affect the jurisdiction
of the court, it is manifestly true that the arrest warrant, issued on the basis of the
complaint, was invalid.
***
However, contrary to Burrill’s contentions, the invalidity of the arrest
warrant did not oust the circuit court of jurisdiction. The sole sanction imposed
by the United States Supreme Court for the invalidity of an arrest warrant has
been the suppression of evidence obtained from the person following his illegal
arrest.
The Court has consistently held that a court’s jurisdiction to try an accused
person cannot be challenged on the ground that physical custody of the accused
was obtained in an unlawful manner.
***
. . . [W]e conclude that the invalidity of the arrest warrant in this case did
not affect the court’s jurisdiction to try Burrill . . .
In People v Mayberry, 52 Mich App 450, 451-452; 217 NW2d 420 (1974), this Court
approvingly cited Burrill in rejecting a defendant’s suggestion that “a conclusory complaint
which fails to identify sources of information . . . divests the court of jurisdiction to try the
offense.” This Court also held that “[b]ecause an arrest warrant is not required, when an invalid
arrest is obtained, the question becomes whether the officer had probable cause to arrest. Since
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the police had probable cause to arrest in the instant case, defendant’s allegation of error is
without merit.” Id. at 451.
Because the complaint and warrant in this case contained the proper information, defense
counsel possessed no basis for a valid objection to the complaint or warrant. People v Mack, 265
Mich App 122, 130; 695 NW2d 342 (2005) (noting that counsel need not raise a meritless
objection). Furthermore, we conclude that the failure to object to the allegedly conclusory
complaint did not prejudice defendant because it had no impact on the trial court’s “jurisdiction
to try the offense.” Mayberry, 52 Mich App at 451.
Affirmed.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Amy Ronayne Krause
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