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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

August 29, 2017

v No. 332852

Kalamazoo Circuit Court

RICHARD DONALD MARCOTTE, III, LC No. 2015-000818-FH

Defendant-Appellant.

Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ. 

PER CURIAM. 

Defendant appeals by right from his conviction following a jury trial of assault with 

intent to do great bodily harm less than murder, MCL 750.84. Defendant was sentenced as a 

fourth-habitual offender, MCL 769.12, to 25 to 50 years’ imprisonment. We affirm. 

On June 5, 2015, the victim, Bradley Holmes, his family, and his girlfriend, Mary Shief, 

attended a Greek festival and a concert in Kalamazoo, where they met and shared a few beers 

while listening to the music with their friends, Stephanie Gernaat and her boyfriend Andrew 

Brinkert. While Holmes, Shief, Gernaat, and Brinkert were heading back to the carport near an

alleyway where their car was parked, Shief testified that Holmes stopped to admire a motorcycle 

owned by Geoffery Varner.1 A fight soon erupted between Varner and Holmes. Defendant 

joined as the altercation grew more serious, stabbing Holmes multiple times. 

Initially, a friendly conversation had sparked between Varner and Holmes as Varner sat 

on the bike. Holmes testified that “while [he] was just trying to compliment [Varner] about his 

bike” “[Varner had] started saying provocative things about [Shief],” who had been standing 

right next to Holmes’ side listening. Shief testified that she did not hear exactly what was said, 

but that Holmes turned around and told Varner “to be respectful.” At first, Holmes stated, he had 

intended to ignore it. It was only after Varner made a sexually charged racial comment which 

“used the ‘N’ word” about Shief, who was African American, that Holmes “got in [Varner’s] 

face.” Subsequently, Holmes and Varner began to fight. As Holmes was on the ground 

 1 Shief testified that Varner was with defendant and defendant’s [now] wife, Althea Simmons, 

who were both sitting on a motorcycle next to Varner’s. 
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wrestling with Varner, defendant2 came up and kicked Holmes’ side. Holmes also believed he 

was stabbed by defendant in the back while he and defendant were wrestling. Immediately after, 

Holmes said he thought he had been stabbed and asked Gernaat to call 911, which she did. 

Kalamazoo Public Safety Officer Brian Boyer was the first officer on the scene after he 

had received a call from station one in the city of Kalamazoo and a man flagged him down to tell 

him of the stabbing. This man gave him directions on how to get there. Simultaneously, 

dispatchers were giving out the same information to others. When Boyer first arrived and parked 

his police car,

3 people were yelling that there were two suspects farther down to the west. Boyer 

first tried to get everything settled down and helped to keep people away from the victim. As 

soon as the other officers came on the scene, he started to delegate tasks (i.e. for people to render 

aid, to begin interviewing witnesses, etc.) Kalamazoo Public Safety Officer Kristie Hofer also 

received a call to respond to 251 East Michigan regarding a stabbing, labeling the nature of the 

call received as being “vague and chaotic.” Hofer testified that she searched for the weapon used 

to stab Holmes at the scene, but did not find one. Kalamazoo Public Safety Officer Jacob 

Vyverman testified that Varner agreed to be searched and informed him of having a small pocket 

knife in his coat pocket. Vyverman described the knife as a small, folding pocket knife.

Vyverman testified that the pocket knife blade “was under three inches, and it was smaller than 

your average pocket knife that any man or woman would carry.” Vyverman stated that he 

opened Varner’s pocket knife and conducted a thorough search, describing how the knife had 

been dry with no blood or foreign objects on it and how he had examined the hilt of the knife to 

ensure that it was dry. Vyverman testified that he then gave it back to Varner, who was ruled out 

as a suspect there and then. 

When asked at trial if there was a specific length that a knife would have to be to cause 

Holmes’ injuries, trauma and brain surgeon Dr. James Kraatz,

4 who treated Holmes, testified as 

follows: 

The only thing that I could say with regard to that was that it would have 

to be long enough to penetrate through the muscle and through the skin, the 

subcutaneous fat, the fat that’s under the skin, the underlying muscle, the muscle 

between the ribs and chest. And in general, in a person that has fairly normal 

amounts of body fat, that’s gonna [sic] be probably two-and-a-half, three inches. 

It would have to be at least that long and you’d really be up to the hub if it was 

 2 Holmes testified that he did not think defendant and Simmons were in any way connected to 

Varner or the dispute until after the confrontation began. Shief further testified that defendant 

came from nowhere and joined the fight after the fighting had become “intense.” 

3 Sergeant Boyer’s vehicle was equipped with a camera called a DVR unit which is to record any 

conversation that a law enforcement officer or Sergeant conducts with a pedestrian. 

4 Dr. Kraatz was qualified as an expert at trial in the diagnosis and treatment of traumatic injuries 

and had testified in court more than ten times over the course of his approximately fifteen years 

in practice to serve in that capacity. 
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that. I would anticipate that it would be something that’d probably be a little bit 

longer than that. 

During closing arguments, the prosecutor made the following statement to the jury: 

So we have the officer saying the knife in [Varner’s] pocket was less than three 

inches and the doctor saying the knife had to be at least three inches in order to 

cause the injuries. 

I submit to you that the knife in [Varner’s] pocket that was examined by 

the police is not large enough to have caused the injuries in this case. 

Defense counsel immediately objected to these statements, arguing that the prosecutor was 

misstating Kraatz’s testimony. Defense counsel stated, “[I]t says two-and-a-half to three. If 

we’re gonna . . . be fair, let’s keep it fair here.” The trial court instructed the jury, “For the 

commentary, I simply advise the jury that you have your notes with regard to the evidence. 

What attorneys say may or may not comport with that. Trust your notes.” 

Defendant argues that the prosecutor’s alleged mischaracterization during closing 

arguments of Kraatz’s testimony about the necessary size of the knife blade constituted 

prosecutorial misconduct and denied him of a fair and impartial trial. “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) citing 

People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). At trial, defense counsel 

objected to the prosecutor’s cited statement during closing arguments, and the court gave a 

curative instruction. Therefore, we review this preserved claim of prosecutorial misconduct de 

novo. People v Pfaffle, 246 Mich App 282, 288; 632 NW2d 162 (2001). 

Where a claim of prosecutorial misconduct is based on the assertion that the prosecutor 

made an improper argument, the reviewing court must read the remarks in context, evaluating 

them “in light of defense arguments and the relationship they bear to the evidence admitted at 

trial to determine whether a defendant was denied a fair and impartial trial.” People v Schutte, 

240 Mich App 713, 721; 613 NW2d 370 (2000) abrogated in part on other grounds by Crawford 

v Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). “Although a prosecutor may 

not argue facts not in evidence or mischaracterize the evidence presented, the prosecutor may 

argue reasonable inferences from the evidence.” People v Watson, 245 Mich App 572, 588; 629 

NW2d 411 (2001). 

Defendant’s theory of the case was that it was in fact Varner, not defendant, who stabbed 

Holmes. Defense counsel spent much of his closing argument casting doubt on the veracity of 

the witnesses to the crime. He argued that “the prosecutor is so afraid of that knife, he’s arguing 

over a half-inch. He is trying to make you forget that the other assailant had a knife in his pocket

. . . ” 

Again, the prosecutor argued that Kraatz testified that the knife that inflicted Holmes’

wounds “had to be at least three inches long,” and thus Varner’s knife could not have caused the 

injury because Vyverman testified that Varner’s knife was less than three inches. Kraatz opined 

that, based on the injuries sustained by Holmes, the knife blade that stabbed him had to be “ . . . 
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probably two-and-a-half, three inches. It would have to be at least that long and you’d really be 

up to the hub if it was that. I would anticipate that it would be something that’d probably be a 

little bit longer than that.” The prosecutor’s characterization of Kraatz’s testimony was 

consistent with that testimony. In essence, Kraatz qualified his own testimony that the length 

would have to be “two-and-a-half, three inches” by indicating that length would probably be 

sufficient if the thrusts were “up to the hub” (reasonably understood to mean the bolster), but that 

in reality, he thought it would have to be longer than that cited range, i.e., longer than three 

inches. On rebuttal, the prosecutor acknowledged that he and defense counsel did not agree 

about the doctor’s testimony. 

In any event, the court timely instructed the jury to refer to their notes and to trust their 

notes when determining the facts of the case, and later cautioned that “[w]hat attorneys say may 

or may not comport with that.” Consistent with this, the court instructed the jury in its closing 

instructions that “the lawyers’ statements and arguments are not evidence” and “[y]ou should 

only accept things the lawyers say that are supported by the evidence or by your own common 

sense and general knowledge.” There is nothing in the record to undermine the well-established

legal maxim that “jurors are presumed to follow their instructions.” Unger, 278 Mich App at 

235. 

Next, in defendant’s standard 4 brief, defendant argues that he was deprived of a fair trial 

based on ineffective assistance of counsel and therefore, that he should be granted a Ginther 

Hearing and that his case should be remanded for a new trial. He states that his defense attorney 

was ineffective at trial in advising him not to testify on his own behalf, not having requested that 

Boyer’s dash cam video be shown in its entirety5, and for not having called Althea Simmons to 

testify. 

Boyer testified that his squad car camera captured a video of the scene after police 

arrived and that video was played for the jury. Boyer testified that the video showed Simmons 

picking a “shiny” item up in the landscaped area where a helmet and other things had been 

dropped. Boyer further testified that the video showed Simmons walk away toward another alley 

after she had picked up the item. There was nothing found in the alley where she had walked 

down when the alleyway was searched. Defendant argues that were this video that Boyer 

describes to be seen in its entirety, the jury would see that the item picked up was a helmet and 

that, had the jury been able to see the full clip, they would have seen two officers were present at 

that time. 

An ineffective assistance of counsel claim is preserved when a defendant moves for a 

new trial or a Ginther Hearing on that basis in the trial court. People v Payne, 285 Mich App 

181, 188; 774 NW2d 714 (2009). Defendant failed to move in the trial court for a new trial or an 

evidentiary hearing. Thus, this issue is unpreserved. “When a defendant did not move in the 

trial court for a new trial or an evidentiary hearing, this Court's review is limited to mistakes 

apparent from the record.” People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). “A 

 5 Sergeant Boyer’s dash cam recorded the alley where defendant and now-wife, Althea (nee 

Simmons), were located as well as Officer Charles Treppa Jr.’s interview with them. 
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claim of ineffective assistance of counsel is a mixed question of law and fact.” People v Petri, 

279 Mich App 407, 410; 760 NW2d 882, lv den 482 Mich 1186 (2008), recon den 483 Mich 917 

(2009), citing People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review 

questions of fact for clear error. People v McSwain, 259 Mich App 654, 681; 676 NW2d 236

(2003) citing People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000) overruled on other 

grounds by People v Miller, 482 Mich 540; 759 NW2d 850 (2008). “[W]e review de novo 

questions of constitutional law.” People v Unger, 278 Mich App 210, 242; 749 NW2d 272

(2008). 

“[T]o find that a defendant’s right to effective assistance of counsel was so undermined 

that it justifies reversal of an otherwise valid conviction, a defendant must show that counsel’s 

performance fell below an objective standard of reasonableness, and that the representation so 

prejudiced the defendant as to deprive him of a fair trial.” People v Pickens, 446 Mich 298, 302-

303; 521 NW2d 797 (1994). Representing a criminal defendant requires a defense attorney to 

perform certain basic duties such as to assist defendant, advocate on his behalf, keep him 

informed on important developments throughout the progression of the prosecution, and to 

“bring to bear such skill and knowledge as will render the trial a reliable adversarial testing 

process.” Strickland v Washington, 466 US 668, 688, 104 S. Ct. 2052, 80 L Ed 2d 674 (1984),

superseded by statute28 USC §2254(d) (1994 ed, Supp III), citing Powell v Alabama, 287 US at 

68-69, 53 S Ct, at 63-64 (1994). However, “defense counsel is given wide discretion in matters 

of trial strategy because many calculated risks may be necessary in order to win difficult cases.” 

See Unger, 278 Mich App at 242 citing People v Pickens, 446 Mich 298, 325; 521 NW2d 342 

(2004). “We will not substitute our judgment for that of counsel on matters of trial strategy, nor 

will we use the benefit of hindsight when assessing counsel’s competence.” Unger, 278 Mich 

App at 242–243. “The defendant must also show that this performance so prejudiced him that he 

was deprived of a fair trial.” People v Grant, 470 Mich 477, 486; 684 NW2d 686 (2005), citing 

Pickens, supra at 338; 521 NW2d 797. 

As the video played in the trial court below is not made available to this Court, we limit 

our review to what is described about the video during the witness’s testimony, which is part of 

the record. At trial, Sergeant Boyer described the recording which was played for the jury,

stating that the video showed how someone had dropped property in a grassy area near the scene 

of the stabbing and stated that subsequently “ . . . [a] white female then proceed[ed] to pick up an 

object from the grassy greenish landscaped area . . . ” and how the object she picked up was

clearly “shiny” when she turned. The white female was subsequently identified by Boyer as 

Althea Simmons, defendant’s wife. Then, he described how Simmons had walked into an alley 

in between two buildings for a short period of time, only to walk back into sight a short while 

later. Defense counsel objected to the relevance of the video and highlighted that the dropped 

object was in no way able to be linked to defendant, as he was absent throughout the clip. 

Furthermore, on cross-examination, defense counsel impeached the officer on his client’s 

absence from that clip. The decision not to play the tape was obviously a strategic choice by 

defense counsel, which we will not second guess. Unger, at 242-243. 

Defendant’s assertion that, had the full clip been played for the jury, they would have 

been able to see that there were two officers behind the vehicle with Simmons, making it 

impossible for her to have dropped the knife, is merely a speculative argument and such 

speculation is not nearly enough to presume counsel to have been ineffective. Boyer himself 
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testified that he could not determine what the “object” was and that they did not find it. Further, 

this would be merely cumulative as the officers had already given testimony that they had been 

in that area at the time Althea picked the object up and walked into the alley, as in fact, Sergeant 

Boyer whose testimony has been stated above, was one such officer. Thus, the effect would be 

insufficient to undermine confidence in the outcome, Turner v US, 137 S Ct 1885, 1887, 85 

USLW 4488, 17 Cal Daily Op Serv 5916 (2017), as one of the four elements which must be met 

to allow for defendant’s motion to be granted for a new trial is that the evidence which was not 

originally submitted must not be merely cumulative. People v Terrell, 289 Mich App 553, 

559;797 NW2d 684 (2010). 

Next, advising a client to exercise his right to remain silent is also a matter of trial 

strategy which defendant has an option of declining and so we shall defer to the trial attorney’s 

judgement. “Although counsel must advise a defendant of this right, the ultimate decision 

whether to testify at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 

412, 419; 803 NW2d 217 (2011). 

Finally, defendant’s assertion that defendant’s wife Simmons should have testified is 

baseless as there is no offer of proof as to what she would testify that would bring about reversal. 

Errors in the exclusion of testimony should not upset a judgment, unless a substantial injustice 

has resulted. The substance of the evidence must be made known to the court through an offer of 

proof. People v Parks, 478 Mich 910, 913; 733 NW2d 14 (2007). “[A]n offer of proof serves 

the dual purpose of informing the trial court of the nature and purpose of the evidence sought to 

be introduced, and of providing a basis for the appellate court to decide whether to sustain the 

trial court’s ruling.” Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260, 291; 730 

NW2d 523 (2006), see MRE 103(a)(2). Exclusions of evidence may not support a finding of 

error unless a substantial right of defendant has been violated. Thus, our review is limited to 

defendant’s substantial rights. Landin v Healthsource Saginaw Inc, 305 Mich App 519, 541; 730 

NW2d 523 (2006). Without an offer of proof this Court will assume that counsel’s failure to call 

the witness was an objectively reasonable one. Defendant has not overcome that presumption in 

this case and has failed to show that were such evidence admitted, there would be a reasonable 

probability that the trial would have resulted differently. Parks, at 913-914. 

Further, the claim that the object which was picked up by Simmons in the video clip

deemed to be indiscernible to the viewers was a helmet is also speculative and this would not 

have been likely to change the outcome of trial. The jury heard from multiple eye-witnesses that 

defendant’s blows to Holmes’ back were in the same locations as his stab wounds. Furthermore, 

no matter what Simmons may have testified to that potential testimony would not have 

undermined Holmes’ testimony. He was sure that it was defendant, not Varner, who was the one 

who had stabbed him, which had been followed by his description of feeling as if he had been 

repeatedly slapped on the back by defendant and how blood had “sprayed out” from his back as 

Gernaat had lifted his shirt following the fight.
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As defendant’s argument does not amount to clear error in the record this Court 

concludes that trial counsel was not ineffective.

Affirmed. 

/s/ Mark T. Boonstra 

/s/ Amy Ronayne Krause 

/s/ Brock A. Swartzle