STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 23, 2016
Plaintiff-Appellee,
v No. 323736
Oakland Circuit Court
DONALD RAY HOLLOWAY, LC No. 2014-250369-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and RIORDAN and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of false pretenses of $1,000 or more
but less than $20,000, MCL 750.218(4)(a). Defendant was sentenced as a fourth habitual
offender, MCL 769.12, to 20 months’ to 20 years’ imprisonment. We affirm.
I. FACTUAL BACKGROUND
On July 24, 2013, Shari Secor left two Cartier watches requiring repairs at Saks Fifth
Avenue (“Saks”) at Somerset Mall in Troy, Michigan, with Terri Gorgis, the Cartier Brand
Ambassador for Saks. Only one of the watches is at issue in this case. Gorgis completed a
repair ticket that delineated Secor’s personal information and the requested repair. For the repair
to be completed, the watch needed to be shipped to New York so that it could be opened by a
certified Cartier watchmaker. Gorgis informed Secor that she would contact her after the watch
was returned to Saks in a few weeks.
On September 16, 2013, defendant went to Saks, allegedly to retrieve a piece of jewelry
that his fiancé, Shelley Barnes, had bought for him but left at the store for an adjustment.
Defendant told the Saks sales clerk, Carolyn Pudlo, that he was picking up a repair item.
According to defendant, when Pudlo asked for the name under which the item was listed, he
said, “Shelley.” However, Pudlo testified that defendant responded “Shari Secor,” explaining
that he was Secor’s husband. Pudlo then retrieved a unisex Cartier watch, valued at $4,950,
which belonged to Shari Secor. Defendant presented his driver’s license as requested, and Pudlo
listed “Donald R. Holloway” and defendant’s driver’s license number on the repair ticket in
order to document who had retrieved the watch. Defendant tried on the watch and asked Pudlo
to adjust the sizing of the watch. Pudlo then asked Gorgis to help defendant, at which time
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defendant again stated, this time to Gorgis, that Secor was out of town and he was her husband.
Defendant then left Saks wearing the watch.
Defendant testified at trial that he returned to Saks the next day to return the watch.
However, because Pudlo was not working that day, he decided to keep the watch until the matter
could be resolved.
On September 26, 2013, Secor called Saks to see if her watch repairs had been
completed. Pudlo told Secor that her husband had already picked up one of the watches, at
which time Secor indicated that she was unmarried.
Troy Police Detective Ryan Whiteside investigated the incident. He ultimately
determined that it was defendant who picked up Secor’s watch, and the detective called
defendant to ask him about the watch. Defendant agreed to return the watch, and he brought it to
the police station the next day. Defendant told Whiteside that his brother’s friend Troy had
given him a name and instructed him to pick up a watch from Saks, but he could not recall the
name that he was given. Defendant also admitted that he had altered his driver’s license number
on the repair ticket.1 At trial, however, defendant testified that he fabricated the story regarding
Troy because he was confined in a police interrogation room and “felt threatened.” He also
claimed that he lied in a statement that he wrote at the police station, writing down information
that he thought Whiteside wanted to hear instead of the truth because he wished to go to work
and avoid arrest.
II. ADMISSION OF PREVIOUS CONVICTION AND PRIOR BAD ACTS
Defendant first argues that the trial court erred in admitting evidence of his past
conviction of larceny in a building and various prior bad acts because the evidence was unfairly
prejudicial and violated his right to a fair trial. We disagree.
A. STANDARD OF REVIEW
We “review[] for an abuse of discretion the trial court’s decision to admit or exclude
evidence,” People v Lane, 308 Mich App 38, 51; 862 NW2d 446 (2014), as well a trial court’s
decision regarding “whether a prior conviction involving a theft component may be used to
impeach a defendant,” People v Meshell, 265 Mich App 616, 634; 696 NW2d 754 (2005). “[A]
trial court abuses its discretion when its decision falls outside the range of principled outcomes or
when it erroneously interprets or applies the law.” Lane, 308 Mich App at 51 (footnotes omitted).
We review de novo “the preliminary questions of law surrounding the admission of evidence, such as
whether a rule of evidence bars admitting it.” Id.
B. LARCENY IN A BUILDING CONVICTION
Defendant first contests the trial court’s admission of his 2013 larceny in a building
1
This alteration was corroborated by surveillance video.
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conviction for impeachment purposes under MRE 609.2 We reject defendant’s claim.
MRE 609 provides that “evidence that [a] witness has been convicted of a crime shall not
be admitted” “[f]or the purpose of attacking the credibility of [the] witness” unless the offense
fulfills several requirements. Evidence of a prior conviction may be admissible during cross-
examination if the crime (1) contained an element of dishonesty or false statement, or (2)
contained an element of theft, was punishable by imprisonment in excess of one year, “has
significant probative value on the issue of credibility,” and, if the defendant is the witness, “the
probative value of the evidence outweighs its prejudicial effect.” MRE 609(a)(1), (2).
There is no dispute that defendant’s 2013 larceny in a building conviction contains an
element of theft, see MCL 750.360; People v Sykes, 229 Mich App 254, 278; 582 NW2d 197
(1998), and was punishable by imprisonment of more than one year, see People v Snyder, 301
Mich App 99, 106 n 1; 835 NW2d 608 (2013). However, defendant asserts that the prior
conviction was not significantly probative on the issue of credibility, and the prejudicial effect of
the conviction outweighed its probative value.
To determine the probative value of a conviction, the trial “court shall consider only the
age of the conviction and the degree to which a conviction of the crime is indicative of veracity.”
MRE 609(b). We have recognized that, in general, theft crimes are only minimally probative of
a defendant’s credibility and moderately probative of a defendant’s veracity, but we have also
recognized that recent convictions are more probative than older convictions. Snyder, 301 Mich
App at 106. Here, defendant’s larceny in a building conviction occurred in the same year as the
false pretenses charge at issue, and only 18 months prior to trial, which gives the conviction
significant probative value under the circumstances of this case. See id. at 108.
Defendant argues that even if the conviction was moderately probative of his credibility
or veracity, “its probative value was far outweighed by its prejudicial effect on [his] trial.” To
determine prejudicial effect, “the court shall consider only the conviction’s similarity to the
charged offense and the possible effects on the decisional process if admitting the evidence
causes the defendant to elect not to testify.” MRE 609(b). Contrary to defendant’s claims, his
larceny in a building conviction was not strikingly similar to the false pretenses charge at issue in
this case. Although larceny in a building, MCL 750.360, and false pretenses, MCL
750.218(4)(a), include some common components, the offenses also include distinctively
different elements. Compare Sykes, 229 Mich App at 278 (delineating the elements of larceny in
a building), with People v Lueth, 253 Mich App 670, 680-681; 660 NW2d 322 (2002)
(delineating the elements of larceny by false pretenses). Further, the circumstances of
defendant’s larceny in a building conviction were not explained at trial, so the prejudicial effect
of the prior conviction was not increased by the admission of evidence that would have made the
offenses appear especially similar to the jury.3 Moreover, there is no indication that the second
2
Defendant does not contest on appeal the trial court’s admission of his prior false pretenses
convictions under MRE 609.
3
Defendant contends that the circumstances of his prior conviction for larceny in a building were
nearly identical to the facts of the instant case, such that admission of the prior conviction was
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factor, i.e., “the possible effects on the decisional process if admitting the evidence causes the
defendant to elect not to testify,” MRE 609(b), is implicated here, or that the evidence was
particularly prejudicial in light of its effect on defendant, because defendant did, in fact, testify.
Stated differently, there was no effect on the decisional process in this regard because the prior
conviction did not prompt defendant to refrain from testifying.
Thus, the probative value of defendant’s prior conviction outweighed its prejudicial
effect, and the trial court’s decision to admit the prior conviction pursuant to MRE 609(a) was
not outside the range of principled outcomes. See People v Johnson, 474 Mich 96, 103; 712
NW2d 703 (2006) (finding admission pursuant to MRE 609 proper in analogous circumstances).
Defendant also argues that the trial court failed to properly consider on the record the
factors identified in MRE 609. “[T]he trial court’s failure to articulate on the record its analysis
of the[] factors [under MRE 609] does not require reversal if the trial court was aware of the
pertinent factors and of its discretion.” Meshell, 265 Mich App at 638. The record reveals that
the court considered the requirements of MRE 609(b) by addressing the age of the crime, the
extent to which the crime was indicative of veracity, and the similarity of the prior conviction to
the instant offense. Although the trial court did not analyze the impact that the admission of the
prior conviction could have on defendant’s decision to testify, it did state that it was aware that
defendant may not testify. Accordingly, it is logical to infer that the court realized that its
decision might affect defendant’s decision. Further, the trial court’s ruling demonstrated that it
knew that the admission of the past conviction was discretionary and was aware of the factors
necessary for admission.
Therefore, any deficiency in the trial court’s articulation of the factors under MRE 609
does not warrant reversal.4 See id.
C. PRIOR BAD ACTS
unfairly prejudicial pursuant to MRE 609(b). Although the prosecutor asked numerous questions
regarding defendant’s prior bad acts involving stolen layaway receipts in Sears stores, the
circumstances of defendant’s previous larceny in a building conviction were not specifically
described at trial or clarified anywhere in the lower court record. Notably, in making this
argument on appeal, defendant provides no citation to the lower court record and instead
proffers, as an exhibit on appeal, a police report allegedly related to the incident giving rise to his
larceny in a building conviction. The police report is not present in the lower court record
received on appeal, and we decline to consider it. “[I]t is impermissible to expand the record on
appeal.” People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
4
To the extent that defendant asserts that the trial court’s reasoning on the record improperly
conflated the requirements of MRE 609 and MRE 404(b), we note that the parties concurrently
presented their arguments regarding the admission of defendant’s prior convictions under MRE
609 and prior bad acts under MRE 404(b). As such, it is apparent that (1) the trial court’s ruling
was in response to, and a product of, the simultaneous arguments of the parties, and (2) it
addressed the admission of the evidence under both rules, even though it only expressly
mentioned MRE 609.
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Defendant also objects to the admission of prior act evidence regarding incidents
involving stolen layaway receipts that defendant returned to Sears for cash. Under MRE 404(b),
evidence regarding other crimes, wrongs, or acts is admissible if (1) it is offered for a proper
purpose, (2) it is relevant to a factual issue of consequence at trial, and (3) the probative value of
the evidence is not substantially outweighed by the potential for unfair prejudice under MRE
403.5 People v Sabin (After Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000), citing MRE
104(b), MRE 402, MRE 403, and MRE 404(b). Defendant does not contest whether the prior act
evidence was offered for a proper purpose, or whether the evidence was relevant to a material
factual issue. Rather, he only asserts that the evidence was unfairly prejudicial and should have
been excluded by the trial court pursuant to MRE 403.
Under MRE 403, “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” To determine whether unfair
prejudice exists for purposes of MRE 404(b), a court must consider “whether the danger of
undue prejudice [substantially] outweighs the probative value of the evidence in view of the
availability of other means of proof and other facts appropriate for making decision[s] of this
kind under Rule 403.” Sabin, 463 Mich at 55-56 (alteration in original).
In People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998), the Michigan
Supreme Court explained:
Evidence is unfairly prejudicial when there exists a danger that marginally
probative evidence will be given undue or preemptive weight by the jury. In the
context of prior bad acts, that danger is prevalent. When a juror learns that a
defendant has previously committed the same crime as that for which he is on
trial, the risk is severe that the juror will use the evidence precisely for the
purpose that it may not be considered, that is, as suggesting that the defendant is a
bad person, a convicted criminal, and that if he did it before he probably did it
again. Because prior acts evidence carries with it a high risk of confusion and
misuse, there is a heightened need for the careful application of the principles set
forth in MRE 403. [Quotation marks and citations omitted.]
See also People v McGhee, 268 Mich App 600, 614; 709 NW2d 595 (2005) (“This unfair
prejudice refers to the tendency of the proposed evidence to adversely affect the objecting party’s
position by injecting considerations extraneous to the merits of the lawsuit, e.g., the jury’s bias,
sympathy, anger, or shock.” [Quotation marks and citation omitted.]).
Here, the prior acts evidence was tremendously probative in light of defendant’s claim
that he acquired the watch by mistake. Additionally, defendant never acknowledged that he
committed any of the prior bad acts referenced by the prosecution. Instead, he either responded
that he did not remember whether the incidents occurred or denied the incidents all together.
Even though this line of questioning presented a danger of prejudice, there is no indication that
5
In addition, “the trial court, upon request, may provide a limiting instruction under MRE 105.”
People v Sabin, 463 Mich 43, 56; 614 NW2d 888 (2000).
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the jury attributed undue or preemptive weight to the prosecution’s questions regarding
defendant’s prior bad acts. Additionally, to the extent that there was a risk that the jury
presumed that the prior bad acts occurred solely from the prosecution’s questions, this risk was
alleviated by the trial court’s instructions that the jury may only consider properly admitted
evidence in deciding the case, and that the lawyers’ questions are not evidence. “[J]urors are
presumed to follow their instructions.” People v Unger, 278 Mich App 210, 235; 749 NW2d
272 (2008).
Moreover, even if the trial court abused its discretion in admitting the prior bad acts
under MRE 404(b)—or if the prosecutor’s questions and defendant’s noncommittal answers
arose, on their own, to a level of unfair prejudice under MRE 403—such an error would be
harmless. “[A] preserved, nonconstitutional error is not a ground for reversal unless after an
examination of the entire cause, it shall affirmatively appear that it is more probable than not that
the error was outcome determinative.” People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607
(1999) (quotation marks omitted). In light of the overwhelming evidence supporting the jury’s
verdict, it does not affirmatively appear more probable than not that the admission of defendant’s
prior bad acts affected the trial’s outcome.
Finally, defendant’s claim related to the trial court’s failure to expressly weigh the
prejudicial nature of the evidence on the record also fails. Even though it did not explicitly
weigh the prejudicial impact of the evidence on the record, the trial court expressly considered
the evidence’s probative value, the similarity of the prior acts to the charged offense, and the
proper purpose of the evidence. In People v Gaines, 306 Mich App 289, 302 n 8; 856 NW2d
222 (2014), we rejected the same argument that defendant raises here, stating, “Defendant claims
the trial court failed to conduct its balancing of prejudicial effect and probative value under MRE
403 on the record, but a trial court need not state on the record how it balanced the prejudicial
effect and probative value.” Furthermore, when a trial court fails to state on the record its
reasons for admitting evidence, we will affirm the evidentiary ruling if the right result was
reached. People v Watson, 245 Mich App 572, 582; 629 NW2d 411 (2001).
Thus, we reject defendant’s evidentiary claims.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he received ineffective assistance of counsel because his trial
counsel failed to request M Crim JI 4.11, an instruction that would have limited the jury’s
consideration of his prior criminal acts to a particular purpose, and M Crim JI 5.1, an instruction
that would have limited the jury’s consideration of his prior conviction for impeachment
purposes only. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Because a Ginther6 hearing was not held in the trial court, our review of defendant’s
6
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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ineffective assistance of counsel claim is limited to mistakes apparent from the record. People v
Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). “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 NW2d 882
(2008), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
In order to prove that counsel provided ineffective assistance, a defendant must
demonstrate that (1) “ ‘counsel’s representation fell below an objective standard of
reasonableness,’ ” and (2) defendant was prejudiced, i.e., “that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v Vaughn, 491 Mich 642, 669-671; 821 NW2d 288 (2012), quoting
Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A
defendant must also show that the result that did occur was fundamentally unfair or unreliable.”
People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). “Effective assistance of
counsel is presumed,” and a defendant bears a heavy burden of proving otherwise. Petri, 279
Mich App at 410.
B. ANALYSIS
Defendant has failed to rebut the strong presumption that defense counsel’s performance
constituted sound trial strategy. See Petri, 279 Mich App at 410. During his closing argument,
defense counsel argued that the jury should not consider defendant’s prior criminal acts at all.
This argument was more stringent than the limitations in both M Crim JI 4.11 and M Crim 5.1,
as both instructions permit the jury to consider prior bad acts or prior convictions for one or more
limited purposes. Accordingly, defense counsel’s failure to request a limiting instruction was
consistent with his clear strategy to downplay defendant’s prior criminal acts and minimize the
purposes for which the jury was permitted to consider the evidence. See, e.g., People v Rice, 235
Mich App 429, 444-445; 597 NW2d 843 (1999). Whether to request a particular jury instruction
is a matter of trial strategy, see People v Gonzalez, 468 Mich 636, 645; 664 NW2d 159 (2003);
People v Barker, 161 Mich App 296, 304; 409 NW2d 813 (1987), and we will not second-guess
counsel on matters of trial strategy, nor assess defense counsel’s performance with the benefit of
hindsight, People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Thus, it was not
unreasonable for counsel to refrain from requesting a limiting instruction so that he could
advance such an argument, without a contradictory instruction from the court. Accordingly,
defendant has failed to establish that defense counsel’s performance fell below an objective
standard of reasonableness. See Vaughn, 491 Mich at 669-671.
Moreover, even if we assume, arguendo, that defendant established the first prong of the
test, defendant has failed to show that he was prejudiced by defense counsel’s performance. The
prosecutor’s statements during his closing and rebuttal arguments concerning the purposes for
which the jury should consider defendant’s prior conviction and prior bad acts presented, in
effect, the same instructions as those in M Crim JI 4.11 and M Crim JI 5.1. Even though the trial
court properly instructed the jury that the court, not the attorneys, is responsible for instructing
the jury on the law, it is significant that the party utilizing the evidence expressly advocated the
restricted use of that evidence for proper purposes. Further, given the magnitude of the evidence
against defendant, we cannot conclude that there is a reasonable probability that defense
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counsel’s failure to request a limiting instruction affected the outcome of the proceedings. See
Vaughn, 491 Mich at 669-671.
IV. PROSECUTORIAL MISCONDUCT
Next, defendant alleges several instances of prosecutorial misconduct. We reject
defendant’s claims.
A. STANDARD OF REVIEW AND APPLICABLE LAW
“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 NW2d 627 (2010). Except as indicated below, all of defendant’s claims of
prosecutorial misconduct are unpreserved. “Review of alleged prosecutorial misconduct is
precluded unless the defendant timely and specifically objects, except when an objection could
not have cured the error, or a failure to review the issue would result in a miscarriage of justice.”
Unger, 278 Mich App at 234-235.
When a claim of prosecutorial misconduct is preserved, we review the issue de novo “to
determine whether the defendant was denied a fair and impartial trial.” Bennett, 290 Mich App
at 475. However, we review unpreserved issues of prosecutorial misconduct for plain error
affecting substantial rights. Id. at 475-476, citing People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999). To demonstrate such an error, the defendant must show that (1) an error
occurred, (2) the error was clear or obvious, and (3) “the plain error affected [the defendant’s]
substantial rights,” which “generally requires a showing of prejudice, i.e., that the error affected
the outcome of the lower court proceedings.” Carines, 460 Mich at 763. “Reversal is warranted
only when plain error resulted in the conviction of an actually innocent defendant or seriously
affected the fairness, integrity, or public reputation of judicial proceedings. Further, [this Court]
cannot find error requiring reversal where a curative instruction could have alleviated any
prejudicial effect.” Bennett, 290 Mich App at 476 (quotation marks and citations omitted;
alteration in original).
We review prosecutorial misconduct claims on a case-by-case basis, examining the
prosecutor’s remarks in context. People v Mann, 288 Mich App 114, 119; 792 NW2d 53 (2010);
People v Dobek, 274 Mich App 58, 63-64; 732 NW2d 546 (2007). “A prosecutor’s good-faith
effort to admit evidence does not constitute misconduct.” Dobek, 274 Mich App at 70.
B. ELICITATION OF IMPROPER WITNESS TESTIMONY
Defendant first argues that the prosecutor improperly questioned Secor regarding her
feelings about the incident. The record reveals that Secor only responded, at this point in her
testimony, that she was angry at and frustrated with Saks, not defendant. Accordingly, there is
no indication that this question denied defendant a fair trial or seriously affected the fairness,
integrity, or public reputation of judicial proceedings. See Bennett, 290 Mich App at 465.
Next, defendant argues that the prosecutor improperly questioned Secor regarding
whether she conspired with defendant “in order to get a better watch out of Saks,” which elicited
Secor’s reply that “[she] can afford [her] own watches, so no.” Defendant argues that the
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prosecutor’s question prompted improper testimony that raised an impermissible inference
between defendant’s financial status and guilt or innocence. See People v Johnson, 393 Mich
488, 496-497; 227 NW2d 523 (1975). However, it is apparent from the context of this question
that the prosecutor intended to establish that Secor was not involved in a conspiracy to defraud
Saks for the price of the watch. There is absolutely no indication that this exchange was
designed to cause, or actually caused, the jury to draw a connection between defendant’s
financial circumstances and the instant offense, as Secor’s statement did not, in fact, provide any
information regarding defendant’s financial status. Likewise, Secor’s unresponsive answer
regarding her own ability to afford watches is not a basis for finding prosecutorial misconduct.
“Unresponsive answers from witnesses are generally not prosecutorial error,” and there is no
indication that the prosecutor knew in advance that Secor would provide this answer. People v
Jackson, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket No. 322350); slip op at 8.
Defendant also challenges the prosecutor’s question regarding whether the watch had
sentimental value, to which Secor responded: “Yes, it did. I’m trying very hard to contain
myself right now. Yes, I can’t stand thieves. So yes I’m very upset right now.” It appears from
the record that the prosecutor asked this question to explain why Secor was emotional during her
testimony. “[A]sking witnesses about how they are feeling while testifying can be relevant to
their credibility.” People v Bailey, 310 Mich App 703, 722; ___ NW2d ___ (2015), citing MRE
401 and MRE 607. Further, we find no basis for concluding that Secor’s unresponsive statement
that she “can’t stand thieves”—which defendant characterizes as an opinion regarding his guilt
or innocence—was prosecutorial error. See Jackson, ___ Mich App at ___; slip op at 8.
Lastly, defendant raises a preserved claim that the prosecutor committed misconduct
when, on re-direct examination, he asked Secor if she was frustrated and annoyed with
defendant, which elicited the following responses: “Absolutely. I mean it’s bad enough to be a
thief, but you got to be a liar too,” and, “I’m annoyed that my watch has been stolen, yes. I
mean[,] I’m the victim here.” Defendant asserts that Secor’s emotions were irrelevant and that
her statements constituted impermissible opinions regarding defendant’s guilt and credibility.
However, when the questions are viewed in context, the record reveals that Secor
exhibited an increasingly frustrated, annoyed, and hostile demeanor throughout her testimony,
especially in response to defense counsel’s cross-examination questions. As such, it is clear that
the prosecutor’s questioning was designed to elicit an explanation for Secor’s demeanor, which
was relevant to her credibility. See Bailey, 310 Mich App at 722. The relevance of this line of
questioning is especially evident given defense counsel’s contentions regarding Secor’s
credibility, arising from her demeanor on cross-examination, during his closing argument.
Moreover, Secor’s additional comments were unresponsive to the prosecutor’s questions, and
there is no indication of prosecutorial misconduct based on Secor’s unresponsive answers. See
Jackson, ___ Mich App at ___; slip op at 8.
In sum, there is no indication that the prosecutor’s questioning of Secor violated
defendant’s right to a fair trial, Bennett, 290 Mich App at 475, and it is apparent that a curative
instruction could have alleviated any prejudicial effect arising from the portions of Secor’s
testimony, elicited by the prosecution, that defendant contests on appeal. If a curative instruction
could have alleviated any prejudicial effect, we cannot find an error requiring reversal. Id. at
476.
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C. REBUTTAL ARGUMENT
Next, defendant raises a preserved claim that statements made by the prosecutor during
his rebuttal argument, which indicated that the testimony of Gorgis was sufficient to establish the
value of the watch, invaded the province of the jury. Defendant’s claim has no merit.
To prove the value element of false pretenses, $1,000 or more but less than $20,000, the
prosecutor had to prove that the watch was worth at least $1,000. See MCL 750.218(4)(a);
Lueth, 253 Mich App at 680-681. During his closing argument, defense counsel argued that the
prosecutor had not proven the value of the watch, emphasizing that neither the watch itself, a
receipt, expert testimony on the watch’s value, nor an appraisal of the watch had been admitted
at trial. During his rebuttal argument, the prosecutor stated:
Counsel raises the value. . . . There is not one single requirement in the
law that says that an expert must be provided to establish the value. It’s sufficient
that a person with knowledge testified to the value.
There’s not a jury instruction and the law does not require that an
appraiser be qualified in order to establish the value.
Direct testimony from the Cartier ambassador is sufficient to establish that
value.
In context, it is apparent that the prosecutor addressed the issue of value in order to refute
defense counsel’s argument that the value of the watch had not been established. “A
prosecutor’s comments are to be evaluated in light of defense arguments and the relationship the
comments bear to the evidence admitted at trial. Otherwise improper prosecutorial conduct or
remarks might not require reversal if they address issues raised by defense counsel.” Dobek, 274
Mich App at 64. Accordingly, given defense counsel’s statements, the prosecutor’s comments
did not constitute misconduct. Moreover, “[p]rosecutors are typically afforded great latitude
regarding their arguments and conduct at trial. They are generally free to argue the evidence and
all reasonable inferences from the evidence as it relates to their theory of the case.” Unger, 278
Mich App at 236 (citation omitted). As such, especially in light of the trial court’s jury
instructions, there is no indication that the prosecutor’s statements invaded the province of the
jury or improperly prejudiced defendant. See People v Lemmon, 456 Mich 625, 636-637; 576
NW2d 129 (1998).
Therefore, the prosecutor’s statements did not violate defendant’s right to a fair and
impartial trial. See Bennett, 290 Mich App at 475.
D. WITNESS VOUCHING
Lastly, defendant argues that the prosecutor impermissibility vouched for Whiteside’s
credibility during his closing argument, at which time the prosecutor indicated that Whiteside
had no reason to lie, fabricate, or exaggerate in order to make a better case against defendant.
We disagree.
“A prosecutor may argue from the facts that a witness is credible or that a witness is not
worthy of belief.” Unger, 278 Mich App at 240; see also id. (“[P]rosecutorial arguments
regarding credibility are not improper when based on the evidence, even if couched in terms of
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belief or disbelief.”). Although “a prosecutor may not vouch for the credibility of his witnesses
by implying that he has some special knowledge of their truthfulness[,] . . . a prosecutor may
comment on his own witnesses’ credibility during closing argument, especially when there is
conflicting evidence and the question of the defendant’s guilt depends on which witnesses the
jury believes.” People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004) (citations
omitted).
Because the prosecutor did not claim that he had special knowledge regarding
Whiteside’s credibility, his comment was not improper vouching. See id. Moreover, when
viewed in context, the prosecutor’s remark was a proper response to defendant’s testimony that
he did not alter his driver’s license number on the repair ticket, which directly contradicted
Whiteside’s testimony. See Thomas, 260 Mich App at 455. Additionally, even if the comment
constituted improper vouching, there is no indication that the outcome of the case was affected
by the prosecution’s statement, as defendant’s testimony and theory of defense diminished the
significance of Whiteside’s testimony regarding defendant’s admissions, as defendant testified
that he lied to the detective. See Carines, 460 Mich at 763; Bennett, 290 Mich App at 476.
Finally, a timely objection and curative instruction would have alleviated any prejudicial effect
of the prosecutor’s statements, Bennett, 290 Mich App at 476, and the trial court did, in fact,
instruct the jury both at the beginning and the end of trial that the jury was the sole judge of the
witnesses’ credibility, and that the lawyers’ statements and arguments were not evidence, thereby
curing the alleged error, see People v Wood, 307 Mich App 485, 506; 862 NW2d 7 (2014),
vacated in part on other grounds 871 NW2d 154 (2015).
Therefore, we reject all of defendant’s claims of prosecutorial misconduct.
V. CUMULATIVE ERROR
Defendant argues that the cumulative effect of the aforementioned errors deprived him of
his right to a fair trial. Because defendant has failed to establish any error, there is no possible
cumulative effect warranting reversal. See Gaines, 306 Mich App at 310 (“[O]nly ‘actual errors’
are aggregated when reviewing a cumulative-error argument.”); People v Mayhew, 236 Mich
App 112, 128; 600 NW2d 370 (1999) (“Because no errors were found with regard to any of the
above issues, a cumulative effect of errors is incapable of being found.”).
VI. STANDARD 4 BRIEF
Finally, defendant alleges six issues in a supplemental brief filed in propria persona
pursuant to Administrative Order 2004–6, Standard 4. Defendant’s arguments are interrelated
and essentially assert that (1) the trial court lacked jurisdiction over him, which rendered his
conviction void, due to multiple deficiencies in the lower court record, and (2) defense counsel
was ineffective in failing to raise these jurisdictional issues below. We disagree.
A. STANDARD OF REVIEW
Because defendant failed to preserve these claims in the trial court, his claim is reviewed
for plain error affecting his substantial rights. Carines, 460 Mich at 763-764. As stated supra,
because no Ginther hearing was held, our review of defendant’s ineffective assistance of counsel
claim is limited to mistakes apparent from the record. Jordan, 275 Mich App at 667.
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B. ANALYSIS
In his brief, defendant cites Michigan and federal cases, constitutional provisions, court
rules, and statutes, but he fails to provide any explanation regarding how the cited law applies to,
or supports, his claims. A defendant abandons his claims when he fails to make a meaningful
argument in support of his position. See MCR 7.212(C)(7); People v Payne, 285 Mich App 181,
188; 774 NW2d 714 (2009). Therefore, because defendant has failed to adequately brief these
arguments on appeal, we deem the issues abandoned.7
Furthermore, the lower court record received on appeal includes a complaint; a general
information; a warrant; a district court register of actions; a statement of bindover to the circuit
court; a preliminary examination transcript; a waiver of arraignment and election to stand mute
or enter a not guilty plea; and a transcript from a plea hearing on June 5, 2014. We discern no
legal deficiencies in any of these records and, as a result, have not found an error affecting
defendant’s substantial rights. See Carines, 460 Mich at 763-764. Moreover, even if we had
found a deficiency, reversal is not warranted, as defendant has not demonstrated that the alleged
errors “resulted in the conviction of an actually innocent defendant or . . . seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Id. at 763-764 (quotation marks and citation omitted; second alteration in original).
VII. CONCLUSION
Defendant has failed to establish that any of the claims of error raised in his brief on
appeal and Standard 4 brief warrant relief.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Michael J. Riordan
/s/ Michael F. Gadola
7
Defendant has also abandoned his ineffective assistance of counsel claim, as he failed to state
this issue in his statement of questions presented. See MCR 7.212(C)(5); People v McMiller,
202 Mich App 82, 83 n 1; 507 NW2d 812 (1993). Nevertheless, there is no indication that
defense counsel’s failure to raise these claims in the trial court fell below an objective standard
of reasonableness or prejudiced defendant. See Vaughn, 491 Mich at 669-671.
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