-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 26, 2015

v No. 319240 Jackson Circuit Court LARRY ALLEN MOORE, LC No. 13-004167-FH

Defendant-Appellant.

Before: W ILDER , P.J., and S ERVITTO and S TEPHENS , JJ.

P ER C URIAM

. Defendant appeals as of right from his jury trial conviction o f prisoner in possession of a weapon, MCL 800.283(4). The trial c ourt sentenced defendant, a s a second habitual offender, MCL 769.10, to 25 to 90 months’ imp risonment. We affirm.

I. FACTS

Parnell Correctional Facility c orrections officers searched de fendant’s cell after receiving a tip that he might be in possess ion of contraband. At trial, Officer Garrett McFarland testified that he and Officer Martin Hein found nine metal bars wrapped i n a cloth and tucked on top of a light bulb. Hein testified that metal bars were not allowed in prisoners’ cells because they could be made into “shanks,” i.e., wea pons. McFarland testified thatthe metal bars were not sharpened in any way. A roll of tape, a pointed item, and a screwdriver- type item were also found. Hein explained that inmates could not have any pointed item because “they’ll attach it to a make-shift handle and they’ll stick somebody.” At two separate administra tive proceedings, defendant pleaded guilty to possession of dangerous contraband, stemming from possession of the screwdriver-type instrument, and possession of a weapon, stemmi ng from possession of the metal bars.

II. SHACKLING

Defendant argues that he was denied his right to due process o f law when he was shackled during trial in plain view of the jury. Generally, a defendant has a due process right to be free of shackles or handcuffs during trial because “[f]reedo m from shackling is an important component of a fair trial.” People v Dixon , 217 Mich App 400, 404; 552 NW2d 663 (1996). When a defendant appears before a jury in shackles, it “negativ ely affects the defendant’s-2- constitutionally guaranteed presumption of innocence.” People v Banks , 249 Mich App 247, 256; 642 NW2d 351 (2002). Ordinarily, such restraints “should be permitted only to prevent the escape of the [defendant] or to pr event him from injuring bysta nders . . . or to maintain a quiet and peaceable trial.” People v Dunn , 446 Mich 409, 425; 521 NW2d 255 (1994). Before a trial court can order a defendant to be restrained, it must make spec ific findings, on the record and supported by record evidence, tha t justify restraining the part icular defendant. Deck v Missouri
, 544 US 622, 628-629; 125 S Ct 2007; 161 L Ed 2d 953 (2005). Se e also Dunn , 446 Mich at 425.

Here, defendant did not challenge t he trial court’s use of shac kles. In fact, both defendant and his counsel affirmatively agreed to the shackling as long a s defendant had one free hand to write with. This constitutes a waiver of the issue. People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). “A defendant may not waive objection to an is sue before the trial court and then raise it as an error before this Court.” People v Fetterley , 229 Mich App 511, 520; 583 NW2d 199 (1998).

Defendant alternatively argues th at he was deprived of his righ t to the effective assistance of trial counsel by counsel’s handling of the issue. Because d efendant did not move for a new trial, People v Wilson , 242 Mich App 350, 352; 619 NW2d 413 (2000), or request an evi dentiary hearing, People v Ginther , 390 Mich 436, 443; 212 NW2d 922 (1973), this issue is not preserved.

In People v Carbin , 463 Mich 590, 599-600; 623 NW2d 884 (2001), our Supreme Court explained that in order to show that he had been denied the eff ective assistance of trial counsel, a defendant must first show that counsel’s performance was defici ent, and second, that counsel’s “deficient performance prejudiced the defense.” Id. at 600; see also Strickland v Washington
, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). We presume t hat counsel provided effective assistance. People v Unger , 278 Mich App 210, 242; 749 NW2d 272 (2008).

Again, defendant’s own actions preclude a finding of error. B ecause review is limited to the existing record, People v Lockett , 295 Mich App 165, 186; 814 NW2d 295 ( 2012), we cannot know what discussions counsel and defendant had over the issue beyond the existing record. However, on the record, counsel was careful to make sure the ac tions being advocated were in accord with the wishes of defendant, including those concerning shackling. Defendant cannot now claim error with respect t o a decision he affirmatively app roved.

III. ADMISSION OF EVIDENCE

Defendant next contends that the admission of unduly prejudici al evidence regarding the length of his incarceration denied him a fair trial. Specifica lly, defendant argues it was error for a hearings investigator to read into the record a statement def endant made during the course of the administrative proceedings that included the following: “I ’ve been locked up for 27 years and have never had any med issues.” Defendant failed to preser ve the issue by raising a timely objection to the admission of the evidence. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). “Unpreserved claims of evide ntiary error are reviewed for plain error affecting the defe ndant’s substantial rights.” People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011).-3- Defendant asserts in his brief to this Court that the statemen t in issue “is so unrelated to the issues in this case there appears to be no purpose for intr oducing the statement other than to inform the jurors of the length of [his] incarceration and by e xtension the fact that he was in prison for a serious and likely violent crime.” This appears t o be the beginning of a MRE 404(b) bad acts argument. However, defe ndant neither provides relevan t authority nor advances any argument beyond these mere protestations. We will not do so fo r him. See Mitcham v Detroit
, 355 Mich 182, 203; 94 NW2d 388 (1959).

Moreover, the predicate of this argument—that the statement wa s focused on another prison ticket he received regard ing possession of medication an d did not relate in any way to the charge of being a prisoner in possession of weapons—is inaccura te. Defendant apparently had a dual charge for one of his admini strative hearings. The refere nce to being in prison for 27 years is made in context of the medications portion of the charge. B ut the statement read into the record concludes as follows: “I’m guilty for the dangerous con traband found.” Defendant does not argue on appeal that the stat ement could have been redacted

. Defendant’s argument focuses in large part on MRE 403, which p rovides, in relevant part: “Although relevant, eviden ce may be excluded if its prob ative value is substantially outweighed by the danger of unfair prejudice . . . .” Unfair p rejudice “means more than simply damage to the opponent’s cause . . . . What is meant here is a n undue tendency to move the tribunal to decide on an improper basis . . . .” People v Vasher , 449 Mich 494, 501; 537 NW2d 168 (1995).

Defendant’s status as a prisoner was not only known to the jur y, but it was an element of the charge filed. And the reco rd does not indicate that any st eps were taken to obscure the prison garb and shackles he was wearing when he was called to the stan d to testify. Under these circumstances, the issue of how long defendant had been incarce rated did not provide an impetus to adjudicate his guilt or innoce nce on an improper basis. Mor eover, the length of his imprisonment was actually used by defendant to his advantage. During direct examination, defendant testified that “as the prosecutor stated . . . I have been incarcerated . . . over 27 straight years now. I can say this, in 27 straight years of incarcerati on, I have never assaulted—I have never had a assault ticket; I’ve never used a weapon on nobody. ”

Further, defendant cannot show t hat his substantial rights were impacted in light of the evidence adduced. The record clearly demonstrates that defenda nt was in possession of the items underlying his conviction. Indeed, defendant admitted th at he was in possession of the items. He had innocent explana tions for having the items, but the issue of intent was not relevant to the charge.

Defendant’s ineffective assistance of counsel argument predicat ed on this evidence also fails. Under the circumstances, defense counsel’s failure to o bject to the admission of defendant’s testimony to the hearing investigator could have be en a choice of sound trial strategy. See People v Rodgers
, 248 Mich App 702, 716; 645 NW2d 294 (2001) . Specifically, it was consistent with his attempt to explain his benign retention of the items. If he had not been cited for assault in all his years in prison, then it is likely that he was holding and using the items for the innocent reasons he provided. Additionally, given the evidence, including defendant’s-4- own testimony, he cannot show that but for counsel’s error, the re was a reasonable probability that the results of the proceedings would have been different.

IV. PROSECUTORIAL MISCONDUCT

Defendant also asserts that the prosecutor’s improper mischara cterization of the evidence deprived him of his due process right to a fair trial. In her closing argument, the prosecutor stated that the “screwdriver and even needles are considered we apons” by the corrections officers. The prosecution also said that “[t]hese are some sha rpened objects, even sharpened edges on these metal bars, and they’re metal.” Defendant argue s that the statements were not consistent with the record.

In order to preserve a prosecu torial misconduct issue, a defen dant must either contemporaneously object or re quest a curative instruction. People v Brown , 279 Mich App 116, 134; 755 NW2d 664 (2008). Here, defendant did neither. Unpres erved claims are reviewed for plain error, which means that defendant has the burden to show that (1) an error occurred, (2) the error is plain or obvious, and (3) the error affected a substan tial right. People v Cross , 281 Mich App 737, 738; 760 NW2d 314 (2008). R eversal is warranted only “if the defendant is actually innocent or the error seriously undermined the fairness, integr ity, or public reputation of the trial.” People v Pipes , 475 Mich 267, 274; 715 NW2d 290 ( 2006). In a prosecutorial misconduct context, reversal is necessary only if a timely inst ruction would have been inadequate to cure any defect. People v Ackerman , 257 Mich App 434, 449; 669 NW2d 818 (2003).

Claims of prosecutorial misconduct are reviewed case by case, with the prosecutor’s remarks evaluated in the context of the entire record. People v Dobek , 274 Mich App 58, 64; 732 NW2d 546 (2007). A prosecutor may argue the evidence and a ll reasonable inferences from the evidence. People v Bahoda , 448 Mich 261, 282; 531 NW2d 659 (1995). However, a prosecutor “may not argue facts not in evidence or mischaracter ize the evidence presented.” People v Watson , 245 Mich App 572, 588; 629 NW2d 411 (2001). The prosecutor’s comments are evaluated in light of defendant’s arguments and the relatio nship they bear to the evidence. People v Brown , 267 Mich App 141, 152; 703 NW2d 230 (2005). The propriety of a prosecutor’s statements and comments depends on all of the fact s of the case. People v Rodriguez , 251 Mich App 10, 30; 650 NW2d 96 (2002).

Here, the prosecutor stated in her closing argument that screw drivers and needles are considered weapons by the corrections officers and the metal ba rs were sharpened. Hein testified the items were “dange rous contraband,” which he said was “a step lower than weapon.” He also explained that “[d]angerous contraband, weapons, I beli eve it’s the same.” McFarland testified that the metal bars were not sharpened in any way and they were in their original condition. Accordingly, the prosecutor argued facts not in evi dence. Nonetheless, this plain error does not require reversal because defendant cannot demons trate that there is a reasonable probability of a different outcome. The record shows that defe ndant possessed the items that may be used to injure a prisoner or other person, contrary to M CL 800.283(4).-5- Moreover, the jury was instruc ted before their deliberations a s following:

When you discuss the case and de cide on your verdict you may o nly consider the evidence that has been properly admitted in this c ase . . . . Evidence includes only the sworn testimony of witnesses and any of the e xhibits that have been admitted into evidence . . . .

The lawyers’ statements and arguments are not evidence. They are only meant to help you understand the evidence and each side’s legal theories.

“Jurors are presumed to follow their instructions, and instruct ions are presumed to cure most errors.” People v Abraham , 256 Mich App 265, 279; 662 NW 2d 836 (2003). Thus, the trial court’s instructions cur ed any potential prejudice.

Defendant alternatively argues that he was denied his right to the effective assistance of counsel when counsel failed to object to the prosecutorial misc onduct. Again, however, defendant cannot show the requisite prejudice. Defendant admit ted his possession of the items and the record showed that they may be used to injure a prisone r or other person in violation of MCL 800.283(4). Under the circum stances, there is no reasonabl e likelihood of a d ifferent result occurring had defense counsel objected.

Affirmed.

/s/ Kurtis T. Wilder /s/ Deborah A. Servitto /s/ Cynthia Diane Stephens