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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 9, 2015

v No. 321185
Kent Circuit Court MICHAEL TARRIS-RASHAD NORRIS, LC No. 13-008427-FC

Defendant-Appellant.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

.

Defendant was convicted by a jury of two counts of felony murd er, MCL 750.316(1)(b);
two counts of assault with int ent to commit murder, MCL 750.83; one count of assault with intent to rob while armed, MCL 750.89; and five counts of posse ssion of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The tri al court sentenced defendant to life imprisonment without the possibility of parole for each of his felony murder convictions; life imprisonment for each of his assault with intent to commit murd er convictions; life imprisonment for his assault with intent to rob while armed con viction; and two years’ imprisonment for each of his fe lony-firearm convictions. He ap peals as of right. Because defendant’s claims of prosecutori al misconduct are without meri t, we affirm.

In the early morning hours of September 3, 2012, acting with a n accomplice, defendant shot and robbed three men coming out of a party store. Two of the victims died and the third was seriously injured. A short time later, four or five blocks from the first shooting, defendant then shot two more men in a park ing lot. Both men were serious ly injured, but they survived their gunshot wounds. At trial, in addition to other testimony and evidence implicating defendant, cellular telephone records placed defendant in the a rea of the shootings around the time both shootings occurred. Defendant’s accomplice, Manual R osado, testified against defendant and specifically identified defendant as the shooter. Another witness testified that, shortly before the shootings, defendant and Rosado obtained gun s from a man named “Swello.” One of defendant’s friends, Anto nio Jones, also testified that, the day after the shooting,
defendant confessed to Jones that he had shot three people. De fendant also told another individual, Louis Wilbon, that he threw the gun away in the Bur ton Heights area, and a gun was recovered shortly after the shootings in that area of the city. The gun was later matched to shell casings recovered at the scenes of both shootings. A jury conv icted defendant as noted above. He now appeals as of right.-2- Defendant’s sole claim on appeal is that the prosecutor commit ted several instances of misconduct during closing arguments. In particular, defendant contends (1) that the prosecutor raised an impermissible civic duty argument and made inflammato ry appeals to the jury’s sympathies, (2) that the prosecutor shifted the burden of proof , and (3) that the prosecutor improperly vouched for the credi bility of two prosecution witne sses.

Defendant failed to object to a ny of the challenged remarks at trial or to request a curative instruction, meaning that our rev iew on appeal is for whether p lain error affecting defendant’s substantial rights occurred. See People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). Consequently, “[r]eversal is warranted only when plain error resulted in the conviction of an actually innocent defendant or seriously affected the fai rness, integrity, or public reputation of judicial proceedings.” People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). “Further, we cannot find error requiring reversal where a curat ive instruction could have alleviated any prejudicial effect.” Id. at 329-330. “Curative instructions are sufficient to cure the prejudicial effect of most inappr opriate prosecutorial statemen ts, and jurors are presumed to
follow their instructions.” People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008) (internal citations omitted).

“The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.” Brown , 279 Mich App at 134. To make this determination, we review t he record as a whole and evaluate a prosecutor’s remarks in contex t, considering the particular facts of the case, the evidence admitted at trial, and any arguments by defense counsel. Callon , 256 Mich App at 330. “Prosecutors are typically afforded great lat itude regarding their arguments
and conduct at trial.” Unger , 278 Mich App at 236. “They are generally free to argue the
evidence and all reasonable inferences from the evidence as it relates to their theory of the case.”

Id. A prosecutor may, for example, comment on the credibility of wi tnesses during closing
arguments. People v Thomas , 260 Mich App 450, 455; 678 NW2d 631 (2004). Further, a prosecutor may use emotional la nguage and need not confine her arguments to the blandest of all possible terms. People v Ackerman , 257 Mich App 434, 454; 669 NW2d 818 (2003); People v

Aldrich , 246 Mich App 101, 112; 631 NW2d 67 (2001).

A prosecutor may not, however, appeal to the jury to sympathiz e with the victim or urge the jury to “convict as part of its civic duty or on the basis of its prejudices.” Unger , 278 Mich App at 237; People v Watson , 245 Mich App 572, 591; 629 NW2d 411 (2001). Such arguments are not permitted because they improperly inject issues broader than the guilt or innocence of the
defendant. People v Abraham , 256 Mich App 265, 273; 662 NW2d 836 (2003). In addition, “[a ] prosecutor may not imply in closing argument that the defendant must prove something or present a reasonable explanation for damaging evidence because such an argument tends to shift the burden of proof.” People v Fyda , 288 Mich App 446, 463-464; 793 NW2d 712 (2010). A prosecutor must also refrain from vouching for the credibility of a witness by implying that he or she possessed “special knowledge of the witness’s truthfulness. ” Thomas , 260 Mich App at 455.

In this case, defendant first argues that the prosecutor prese nted an impermissible civic duty argument that urged the jury to convict in order to protec t community safety and in particular for the safety of the Hispanic community, which the prosecutor presented as vulnerable to criminal attacks. In context, the challenged rem arks, shown in italics, were as
follows:-3- And the truth is if the defendant had not been in town, this ma n, this defendant had not been in town, up in Big Rapids - - he doesn’t care abou t these people, he doesn’t care about anybody from here, he’s not from here - - th ese men would be alive. They’d be alive because [Rosado], Swello, whoever it is , whoever you want to believe is involved in this, we know [Rosado] is. You know, this is not
their first rodeo. I f they would have jus t robbed three drunk Mexicans coming out of the bar or out of the store, they may have fired a warning s hot like [Rosado] did, like Swello’s done, but the se men would not have been mowe d down.

The defendant doesn’t know anybody here. He doesn’t care who sees him do what. He was pumped up, he was drunk, he was high, and mayb e trying to prove something to [Rosado] and the [Maniac Latin Disciples (ML D)]. And he goes out there with this gun and he just mows these people down . Because if it was just a robbery, that they’re just going to rob him and they didn’t shoot him, he didn’t point the gun, pull the trigger, and fire and fire and f ire, you wouldn’t even
be here.

So I’m going to tell you I don’t know how many robberies we have in the Hispanic community or in the inner city in Grand Rapids, but there are many, many, many, many that occur that no one ever reports. These are the perfect victims, right? I mean, they don’t want to draw attention to themselves. If they’re just robbed are they going to call the police? They don’t even have good I.D. Some of them are illegal. [One of the vi ctims] tells you, you know, he’s not here legally. He’s lived here for many years. They have lives here, but are they going to risk being found out if th ey report anything like that because they’re robbed? No. It’s kind of the cost of doing business. It’s kind of the risk of living in a city where it happens all the time, espe cially to our Hispanic community.

Taken in context, the challe nge remarks do not constitute an i mproper civic duty argument. The argument did not inject issues broader than the guilt or innocence of defendant or encourage the jury to suspend its power of judgment. Instead, it appears that the prosecutor’s argument—albeit somewhat convoluted in its presentation—was tha t Rosado acting alone or
with another local member of the MLD would not have shot or kil led the victims because he
would have had no nee d to do so. In this re spect, it appears t hat the prosecutor w as attempting to explain the counterintuitive noti on that Rosado—who was from th e area and was in fact known
to several witnesses who testified at trial—would have no reaso n to shoot or kill the victims because this robbery was not his “first rodeo” and he would thu s have been well-aware that robberies in the inner-city or ag ainst the Hispanic community o ften went unreported. This line of reasoning served to explain why Rosado may have selected the particular victims in this case, and it comported with Rosado’s testimony that, at the time of t he robbery outside t he party store, he fired a warning shot into the air, but that he did not actua lly shoot any of the victims. In contrast, defendant was from out-of-town and, according to the prosecutor’s theory of the case, he unnecessarily escalated the offense to murder because he was “pumped up,” drunk, high, and looking to impress those around him, which he did by killing tw o men and shooting three others. In short, the prosecutor merely sought to argue that it was def endant, not Rosado, who escalated the crime from an armed robbery to an actual shooting and a mul tiple homicide. In this context, the prosecutor’s references to the Hispanic community was not a n improper appeal for sympathy-4- or an improper appeal to convict d efendant as part of a civic d uty in order to protect the Hispanic community. Furthermore, even if some of the prosecutor’s remar ks were gratuitous or could be construed as the presentation of a civic duty argument, the tri al court cured any resulting prejudice by instructing the jury that the lawyers’ arguments w ere not evidence and that the jury’s verdict should not be infl uenced by sympathy or prejudic e. See People v Long , 246 Mich App 582, 588; 633 NW2d 843 (2001).

Next, defendant argues that the prosecutor improperly appealed to the sympathy of the jury by stating “[t]hank God I have no pictures” of the crime s cene and “thank God” that one of the victims did not suffer because he died almost instantly. M ore fully, the prosecutor stated:

[One of the victims was] shot in the head. Thank God - - I wou ld say thank God it was one shot that put him down instantly, you know tearing t hrough his brainstem, because he didn’t suffer.

* * *

Two counts of assault with inten t to murder and two counts of f elony firearm for
scene two. You know the victim s here. Thank God I have no pic tures.

Defendant contends that these remarks were intended to inflame the jury’s sympathies “by emphasizing the horror and bl oodiness of the crimes.”

Defendant’s claim in this respe ct is without merit. Regarding the first comment, the prosecutor’s remarks regarding th e victim’s instantaneous death , while gruesome, concerned facts in evidence in light of am ple testimony regarding the vic tims’ autopsies and the crime scenes, and we see nothing improper in these remarks. As noted , the prosecutor has wide latitude in respect to her argument and she was not required to confine those arguments to the blandest of all possible terms. Aldrich , 246 Mich App at 112. Regardi ng the prosecutor’s thanks to God that there were “no pictures” of the victims at the seco nd crime scene to show the jury, in context, this remark was not an appeal for sympathy or a commen t on the gruesomeness of what such images might have displayed. Rather, the prosecutor began her closing argument by noting that she was using a PowerPoint presentation. She indicated th at there were pictures of some of the victims, but not all, and she explained that she only had p ictures of the victims who died because those were the victims present at the crime scene when technicians arrived, while those victims who survived had been taken to the hospital. In short, her comment indicating that she had no pictures of the victims at the second scene was merely aremark on the outcome of the crime, i.e., that the victims injured in the second shooting we re not dead. We see nothing improper or inflammatory in these remarks. And, in any event, the trial court’s instruction that the jury should not let its decision be influenced by sympathy or prejudice was sufficient to cure any potential prejudice the comments may have had. See Long , 246 Mich App at 588.

Defendant next argues that the p rosecutor impermissibly shifte d the burden of proof by arguing that it was “un disputed” and that there was “zero evide nce” against a finding that the crimes charged were actually committed. As noted, a prosecutor may not shift the burden of proof by commenting on the defendant’s failure to present evide nce or by implying that a defendant must prove something or present a reasonable explanat ion for damaging evidence.-5- Fyda , 288 Mich App at 464. However, a prosecutor may “observe that the evidence against the defendant is uncontroverted or undisputed[.]” People v Godbold , 230 Mich App 508, 521; 585 NW2d 13 (1998). See also Fyda , 288 Mich App at 464. Here, the prosecutor permissibly argued that the evidence was undisputed with respect to whether the charged crimes had been committed and that the salient question was whether defendant w as the person who committed
the crimes. This was consistent with defendant’s own stance at trial. That is, defendant did not appear to challenge that the crimes had been committed; rather, consistent with the prosecutor’s framing of the issue, defendant only appeared to argue that ide ntity was at issue. Therefore, these challenged remarks by the prosecutor did not constitute m isconduct. Moreover, the trial court instructed the j ury on the elements o f each offense, the applicable burden of proof beyond a reasonable doubt, the presumption of innocence, and the fact th at defendant did not have to testify or prove anything. These instructions were sufficient to cure any potential prejudice. See Long , 246 Mich App at 588.

Finally, defendant argues that the prosecutor improperly vouch ed for the credibility of two witnesses, Antonio Jones and Detective Erik Boillat. First , with respect to Jones, the prosecutor argued that he was “sincere” and, in making this arg ument, the prosecutor indicated that Jones had no reason to lie and in fact cried while being q uestioned at an investigative subpoena hearing because he did not want defendant to go to pri son. As noted, although a prosecutor may not vouch for witness credibility by implying th at he or she possessed special knowledge of the witness’s truthf ulness, a prosecutor may argue from the evidence that a witness
should be believed. Thomas , 260 Mich App at 455; People v McGhee , 268 Mich App 600, 630; 709 NW2d 595 (2005). Facts regardi ng Jones’s close friendship with defendant as well as his demeanor at the hearing were in evidence. Accordingly, the cha llenged argument was a fair inference from facts in evidence. Because the challenged remark did not rely on the prosecutor’s “special knowledge” of Jones’s tr uthfulness, it did not constit ute misconduct.

Second, with respect to Detective Boillat, defendant argues th at the prosecutor improperly vouched for his credibility by indicating that he “i s not deceptive. ” Placing the prosecutor’s remarks in context, with regard to Detective Boill at’s testimony concerning the telephone records in this case, defense counsel accused Detecti ve Boillat on cross-examination of providing deceptive testimony. The prosecutor addressed thi s accusation during closing by arguing that Detective Boillat’s testimony was accurate, not de ceptive, because he based his opinion on information he received from an ostensibly neutral s oftware program and because he took his job “very seriously,” w hich the prosecution argued the jury saw for themselves from the
detective’s demeanor when he testified. Cf. People v Stout , 116 Mich App 726, 730; 323 NW2d 532 (1982) (concluding prosecutor’ s comments on a witness’s res ponses and demeanor were proper). The prosecutor’s remarks were thus based on the evide nce and not on her special knowledge of Detective Boillat’s truthfulness. Therefore, we f ind that the prosecutor did not improperly vouch for Detective Boillat’s credibility. See Thomas , 260 Mich App at 455;

McGhee , 268 Mich App at 630. Moreover, jurors are presumed to follow their instructions, and the trial court instructed the jury that it alone could determi ne the credibility of witnesses. These instructions cured any error re lating to the prosecutor’s purpo rted vouching for Jones and
Detective Boillat. See Long , 246 Mich App at 588.-6- Affirmed.

/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell /s/ Christopher M. Murray