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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED August 16, 2016

v No. 326805 Wayne Circuit Court MARIO KEEREAM JACKSON, LC No. 14-006836-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and C AVANAGH and G ADOLA , JJ.

P ER C URIAM

. Defendant appeals as of right his jury convictions of felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. We affirm.

In the early morning hours of July 25, 2014, defendant was sta nding in the middle of a street with several other people and was holding a bottle of Re my Martin. An officer riding in the front passenger seat of a fully marked Detroit Police Depar tment (DPD) scout car saw defendant spot the scout car and then walk over to an occupied parked car, remove a handgun from his waistband, and drop it through the car’s open rear win dow. The officer then got out of the scout car and approached defendant. The gun—which was load ed—was recovered and defendant, a felon, was arreste d. Subsequently, a discovery or der was entered directing the production of any scout car video tape existing with regard to this arrest. When no video tape was produced, defendant filed a motion to dismiss the charges f or failure to preserve evidence.

At the hearing on defendant’s motion, the officer in charge of the case, Detective Matthew Van Raaphorst, testified that he received the discovery order for any scout car video and submitted a request to the Technical Services Bureau, which is in charge of retrieving all video from the scout cars. The T echnical Services Bureau respo nded that the requested scout car video did not exist. Van Raaphorst explained that video from a scout car is stored for a particular period of time depending on what triggered the recor ding, such as opening the rear car door, activating the overhead lights, and activating the office rs’ body microphones. If a certain trigger did not cause activation, the video may be kept for 24 to 48 hours before it is automatically deleted. But if a certain trigger did activate t he recording, the video could be kept for 30 to 90 days. During cross-examination, Van Raaphorst adm itted that the memorandum-2- from Technical Services stated that there was no scout car vide o for the date of July 24, 2014, at 12:35 p.m., but the actual incident occurred on July 25, 2014, at 12:35 a.m.

The trial court denied defendant’s motion to dismiss, holding that defendant failed to show either that the video tape would have been favorable to th e defense or that the police acted in bad faith in failing to preserve this evidence.

On appeal, defendant argues that his motion to dismiss should have been granted because the efforts of the police and prosecution to comply with the di scovery order concerning any video tape from the scout car sho wed bad faith and/or gross neg ligence, resulting in the destruction of potentially exculpatory evidence. Defendant fur ther contends that the prejudice to him was accentuated by the prosecutor’s impermissible and unsup ported factual st atement during rebuttal argument that, had the v ideo been properly preserved a nd presented, it would have shown defendant in possession of a f irearm. We disagree with b oth arguments.

We review for an abuse of discr etion a trial court’s ruling on a motion to dismiss for discovery violations. People v Banks , 249 Mich App 247, 252; 642 NW2d 351 (2002); People v Davie (After Remand) , 225 Mich App 592, 597-598; 571 NW2d 229 (1997). An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. People v Unger , 278 Mich App 210, 217; 749 NW2d 272 (2008). We review the trial court’s underlyi ng factual determinations for clear error. People v Tracey , 221 Mich App 321, 323; 561 NW2d 133 (1997). “Cl ear error exists if the reviewing court is left with a definite and firm conviction th at the trial court made a mist ake.” People v Armstrong , 490 Mich 281, 289; 806 NW2d 676 (2011).

“‘[T]he suppression by the prosecution of evidence favorable t o the accused upon request violates due process where the evidence is material either to g uilt or to punishment, irrespective of the good faith or the bad f aith of the prosecution.’” Arizona v Youngblood , 488 US 51, 55; 109 S Ct 333; 102 L Ed 2d 281 (1988), quoting Brady v Maryland , 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). The defendant has the burden to show that the evidence was potentially exculpatory and was actually withheld by the prosecution. People v Johnson , 197 Mich App 362, 365-366; 494 NW2d 873 (1992). However, the standard under Brady regarding the government’s failure to disclose or produce evidence does not s imilarly apply to the government’s failure t o preserve evidence.

The Due Process Clause of the F ourteenth Amendment, as interpr eted in Brady , makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But w e think the Due Process Clause requires a differe nt result when we deal with th e failure of the State to preserve evidentiary material of which no more can be said then it could have been subjected to tests, the results of which might have e xonerated the defendant. [ Youngblood , 488 US at 57.]

Unless the defendant can demonstrate bad faith, the State’s fai lure to preserve potentially useful evidence does not constitute a denial of due process. Id . at 58. See also People v Heft , 299 Mich App 69, 79; 829 NW2d 266 (2012).-3- In this case, a discovery order was entered directing the prod uction of any scout car video tape existing with regard to def endant’s arrest and no video ta pe existed to produce. But even if it did exist, it could not have shown the key events—namely, de fendant removing a handgun from his waistband and dropping it through the open rear window of a parked car. Thus, the video tape could not have been e xculpatory. That is, a police officer observed defendant remove a gun from his waistband and drop it through the rear window of a parked car while patrolling the area. Because the recording system in the scout car was no t triggered to activate at that time—either by the opening of a s cout car door or because the o verhead oscillating lights were turned on—defendant’s alleged ac tions would not have been video taped. Thus, defendant could not show that his due process rights were violated because the prosecution withhe ld potentially exculpatory evidence by not producing the video tape. See Johnson , 197 Mich App at 365.

Further, defendant did not dem onstrate bad faith with regard t o the failure to preserve any video tape recording. See Heft , 299 Mich App at 79. There is no evidence showing that the DPD’s routine destruction of the video footage occurred despite knowledge of any potential exculpatory value to defendant. Such automatic procedures to c lear police department storage space alone do not constitute bad faith. See Johnson , 197 Mich App at 365; People v Albert , 89 Mich App 350, 352; 280 NW2d 523 (1979). Moreover, it does not appear that Detective Van Raaphorst had any motive not to produce the video tape. He was not involved in defendant’s arrest. Nor is there any evidence that the Technical Services Bureau had reason not to search for or produce the correct video. While the trial court noted that there was “a lot of sloppiness” with regard to the video tape, the court viewed the evidence and spe cifically refused to infer bad faith in that regard. See MCR 2.613(C). Therefore, the trial court properly denied defendant’s motion to dismiss premised on the claim that he was denied due process by the failure to preserve the video tape. See Heft , 299 Mich App at 79.

Defendant also seems to claim that the prosecutor committed mi sconduct during his rebuttal argument by making a statement of fact to the jury tha t was unsupported by the evidence with regard to the missing video tape. However, prosecutorial comments must be read as a whole and evaluated in light of defense arguments. People v Brown , 279 Mich App 116, 135; 755 NW2d 664 (2008). At trial, def ense counsel raised the issu e of the missing video tape during closing argument:

[A] video would have backed up the story. A video would have b een great. Even if, like the officers testified, maybe the camera wasn’t workin g when they came down the street, when they allegedly saw Mr. Jackson put the gu n in the car. Okay. But it triggers when the lights are turned on, which Off icer Washington said happened, or when the back doo rs open, like when Officer M onti jumped out. So we should have some video then. And then if it triggered wh en the back door opened, then the video would have started as soon as they pulle d up. That video, had the police been telling the tr uth, probably would have back ed up their entire story, or maybe it didn’t, and tha t’s why that video is not her e.

The prosecutor responde d in rebuttal argument:

In this particular case I would have rather enjoyed having a vi deo. Because if we had a video that was staring at the scene, you would have seen the defendant walk-4- over, take the gun out and drop the gun in the back seat of the car. And then the part that I would have really enjoyed is I can tell you for alm ost certainty that Mr. Jackson still would have taken the stand and still would have t ried to come up with some reason why he’s not guilty of these offenses. So I w ould have really liked to have it, but alas we did not.

Defendant claims on appeal that the prosecutor’s comments were impermissible. But defense counsel implied that the police were lying about defendant and, because the video tape would have exonerated him, it was destroyed. The prosecutor is permi tted to respond to such an accusation and defendant was not denied a fair and impartial tr ial as a consequence of doing so. See People v Jones , 468 Mich 345, 353-354; 662 NW2d 376 (2003).

Next, defendant argues that he was denied the effective assist ance of counsel because his attorney failed to object when the prosecutor made a statement of fact to the jury in rebuttal argument that was unsupported by t he evidence with regard to th e failure of the police to fingerprint the recovered gun. We disagree. Because defendant did not move for a new trial or request an evidentiary hearing in the trial court, this issue i s not preserved and our review is limited to errors apparent on the record. Heft , 299 Mich App at 80.

To establish ineffec tive assistance of c ounsel, a defendant mu st show that defense counsel’s performance fell below an objective standard of reaso nableness and there is a reasonable probability that, but for counsel’s error, the resul t of the proceeding would have been different. People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012) (citation omitted). “Effective assistance of counsel i s presumed, and the defendant bears a heavy burden of proving otherwise.” People v Solmonson , 261 Mich App 657, 663; 683 NW2d 761 (2004).

The gun that was recovered by the police was not tested for fi ngerprints by the Michigan State Police (MSP), which teste d its operability. The MSP has a policy not to do so if the request states that the weapon was sei zed from a suspect’s person, even if the submitting agency requests fingerprinting. In this case, the forms submitted to the MSP i ncorrectly stated that the gun was taken from the suspect’s person so there was no testing for fin gerprints.

In his closing argument, defe ndant’s trial counsel discussed the lack of fingerprint testing on the gun as follows:

Next thing, fingerprints, fingerprints on the gun, none, none. Why? Because Officer Lyons -- well, partially, I don’t want to lie, but partially because Officer Lyons checked the wrong box. And, granted, the detecti ve said that that doesn’t directly pull into it; that he does his own look at it. And he put that the gun was observed taking [sic] off of persons. Had he not put t hat, we could have had some fingerprints. We coul d have had some fingerprints. .

. . In his rebuttal argument, the trial prosecutor also discussed the lack of fingerprint evidence in the

case: Fingerprints, look, they weren’t tested by MSP. Go home, write a letter to the Michigan State Police . . . . Go ahead and do that, but tha t is the only evidence-5- that you’ve heard in this trial, okay. You have not heard any evidence that there was [sic] fingerprints on the gun.

You have a lot of gun owners here. Fingerprints cannot be see n on a gun or cannot be -- you can handle a gun a hundred times and there would be no fingerprints on a gun. I t’s different.

And the bottom line is, look, I’m not an expert. What I just said, don’t consider that evidence. What he said -- what the defense attor ney said, don’t consider that evidence. The only evidence you heard in this pa rticular case is from the witness stand, and it says MSP doesn’t test them for p rints in this type of situation. . . . But the defense attorney basically suggested t hat because there’s not more evidence, okay, even though we’re already beyond a reasona ble doubt, that should be reason to find the defendant not guilty.

Again, a prosecutor’s comments must be reviewed in context and a prosecutor is permitted to respond to defense counsel’s argument. People v Kennebrew , 220 Mich App 601, 608; 560 NW2d 354 (1996). Here, while the prosecutor’s remarks were responsive to defense counsel’s argument, the remarks also improperly included facts that were not in evidence regarding whether fingerprints can be obtained from a firearm. However, the prosecutor almost immediately downplayed his remarks by admitting that he was not a fingerprint expert and told the jury not to consider his rem arks as evidence. Even if defe nse counsel had objected at this point, the goal of a defense objection to prosecutorial remarks is a curative instruction which would have paralleled the prosecutor’s own statements. See People v Stanaway , 446 Mich 643, 687; 521 NW2d 557 (1994). And t he trial court did later instruct the jury that the attorneys’ arguments were not evidence. Under the circumstances of this c ase, there is no reasonable probability that, but for defense counsel’s failure to object t o the improper argumen t, the result of the proceeding would have been different. See Vaughn , 491 Mich at 669. Thus, defendant’s ineffective assistance of c ounsel claim is without merit.

Affirmed.

/s/ Jane M. Beckering /s/ Mark J. Cavanagh /s/ Michael F. Gadola