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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UNPUBLISHED 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: WILDER, P.J., and SERVITTO and STEPHENS, JJ. 

PER CURIAM. 

 Defendant appeals as of right from his jury trial conviction of prisoner in possession of a 

weapon, MCL 800.283(4). The trial court sentenced defendant, as a second habitual offender, 

MCL 769.10, to 25 to 90 months’ imprisonment. We affirm. 

I. FACTS 

 Parnell Correctional Facility corrections officers searched defendant’s cell after receiving 

a tip that he might be in possession of contraband. At trial, Officer Garrett McFarland testified 

that he and Officer Martin Hein found nine metal bars wrapped in 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., weapons. McFarland testified that the 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 administrative proceedings, defendant 

pleaded guilty to possession of dangerous contraband, stemming from possession of the 

screwdriver-type instrument, and possession of a weapon, stemming from possession of the 

metal bars. 

II. SHACKLING 

 Defendant argues that he was denied his right to due process of 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]reedom 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 “negatively affects the defendant’s 
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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 prevent him from injuring bystanders . . . 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 specific findings, on the record and 

supported by record evidence, that justify restraining the particular defendant. Deck v Missouri, 

544 US 622, 628-629; 125 S Ct 2007; 161 L Ed 2d 953 (2005). See also Dunn, 446 Mich at 425. 

Here, defendant did not challenge the trial court’s use of shackles. In fact, both defendant 

and his counsel affirmatively agreed to the shackling as long as 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 issue 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 that he was deprived of his right to the effective assistance 

of trial counsel by counsel’s handling of the issue. Because defendant did not move for a new 

trial, People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000), or request an evidentiary

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 effective assistance of trial counsel, a 

defendant must first show that counsel’s performance was deficient, 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 that 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. Because 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 actions being advocated were in 

accord with the wishes of defendant, including those concerning shackling. Defendant cannot 

now claim error with respect to a decision he affirmatively approved. 

III. ADMISSION OF EVIDENCE 

 Defendant next contends that the admission of unduly prejudicial evidence regarding the 

length of his incarceration denied him a fair trial. Specifically, defendant argues it was error for 

a hearings investigator to read into the record a statement defendant 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 preserve 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 evidentiary error are reviewed for 

plain error affecting the defendant’s substantial rights.” People v Benton, 294 Mich App 191, 

202; 817 NW2d 599 (2011). 
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 Defendant asserts in his brief to this Court that the statement in issue “is so unrelated to 

the issues in this case there appears to be no purpose for introducing the statement other than to 

inform the jurors of the length of [his] incarceration and by extension the fact that he was in 

prison for a serious and likely violent crime.” This appears to be the beginning of a MRE 404(b) 

bad acts argument. However, defendant neither provides relevant authority nor advances any 

argument beyond these mere protestations. We will not do so for him. See Mitcham v Detroit, 

355 Mich 182, 203; 94 NW2d 388 (1959). 

 Moreover, the predicate of this argument—that the statement was focused on another 

prison ticket he received regarding possession of medication and did not relate in any way to the 

charge of being a prisoner in possession of weapons—is inaccurate. Defendant apparently had a 

dual charge for one of his administrative hearings. The reference to being in prison for 27 years 

is made in context of the medications portion of the charge. But the statement read into the 

record concludes as follows: “I’m guilty for the dangerous contraband found.” Defendant does 

not argue on appeal that the statement could have been redacted. 

 Defendant’s argument focuses in large part on MRE 403, which provides, in relevant 

part: “Although relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice . . . .” Unfair prejudice “means more than simply 

damage to the opponent’s cause . . . . What is meant here is an 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 jury, but it was an element of 

the charge filed. And the record does not indicate that any steps were taken to obscure the prison 

garb and shackles he was wearing when he was called to the stand to testify. Under these 

circumstances, the issue of how long defendant had been incarcerated did not provide an impetus 

to adjudicate his guilt or innocence on an improper basis. Moreover, 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 incarceration, I have never assaulted—I have 

never had a assault ticket; I’ve never used a weapon on nobody.” 

Further, defendant cannot show that his substantial rights were impacted in light of the 

evidence adduced. The record clearly demonstrates that defendant was in possession of the 

items underlying his conviction. Indeed, defendant admitted that he was in possession of the 

items. He had innocent explanations for having the items, but the issue of intent was not relevant 

to the charge. 

Defendant’s ineffective assistance of counsel argument predicated on this evidence also 

fails. Under the circumstances, defense counsel’s failure to object to the admission of 

defendant’s testimony to the hearing investigator could have been 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 
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own testimony, he cannot show that but for counsel’s error, there 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 mischaracterization 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 weapons” by the corrections 

officers. The prosecution also said that “[t]hese are some sharpened objects, even sharpened 

edges on these metal bars, and they’re metal.” Defendant argues that the statements were not 

consistent with the record. 

 In order to preserve a prosecutorial misconduct issue, a defendant must either 

contemporaneously object or request a curative instruction. People v Brown, 279 Mich App 116, 

134; 755 NW2d 664 (2008). Here, defendant did neither. Unpreserved 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 substantial right. People v Cross, 281 Mich 

App 737, 738; 760 NW2d 314 (2008). Reversal is warranted only “if the defendant is actually 

innocent or the error seriously undermined the fairness, integrity, 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 instruction 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 all 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 mischaracterize 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 relationship 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 facts of the case. People v 

Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). 

 Here, the prosecutor stated in her closing argument that screwdrivers and needles are 

considered weapons by the corrections officers and the metal bars were sharpened. Hein 

testified the items were “dangerous contraband,” which he said was “a step lower than weapon.” 

He also explained that “[d]angerous contraband, weapons, I believe 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 evidence. Nonetheless, this plain 

error does not require reversal because defendant cannot demonstrate that there is a reasonable 

probability of a different outcome. The record shows that defendant possessed the items that 

may be used to injure a prisoner or other person, contrary to MCL 800.283(4). 
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 Moreover, the jury was instructed before their deliberations as following: 

 When you discuss the case and decide on your verdict you may only 

consider the evidence that has been properly admitted in this case . . . . Evidence 

includes only the sworn testimony of witnesses and any of the exhibits 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 instructions are presumed to cure most 

errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Thus, the trial 

court’s instructions cured 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 misconduct. Again, however, 

defendant cannot show the requisite prejudice. Defendant admitted his possession of the items 

and the record showed that they may be used to injure a prisoner or other person in violation of 

MCL 800.283(4). Under the circumstances, there is no reasonable likelihood of a different result 

occurring had defense counsel objected. 

 Affirmed. 

/s/ Kurtis T. Wilder 

/s/ Deborah A. Servitto 

/s/ Cynthia Diane Stephens