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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 16, 2015 

v No. 318968 

Kent Circuit Court 

DARRYL ANTHONY WARREN, LC No. 12-005712-FC 

 Defendant-Appellant. 

Before: OWENS, P.J., and JANSEN and MURRAY, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of three counts of armed robbery, 

MCL 750.529, one count of first-degree home invasion, MCL 750.110a, one count of conspiracy 

to commit armed robbery, MCL 750.157a, and one count of possession of a firearm during the 

commission of a felony (felony-firearm), MCL 750.227b. We affirm. 

 This case involves a home invasion allegedly conspired by defendant and four other men 

to rob a medical marijuana user of his plants and other medications, as well as some jewelry and 

electronics. One of the codefendants dated the daughter of one of the occupants of the home, 

and provided information regarding the layout and contents of the home. Defendant raises issues 

in a brief filed by appellate counsel, as well as in propria persona in his supplemental brief, filed 

pursuant to Supreme Court Administrative Order No. 2004–6, Standard 4. 

I. APPELLATE BRIEF ISSUES 

A. OTHER ACTS EVIDENCE 

 First, defendant argues in his appellate brief filed by counsel that the trial court erred by 

admitting evidence of defendant’s prior conviction of accessory after the fact to armed robbery.1

 

We disagree. We review a trial court’s decision whether to admit or exclude evidence for an 

abuse of discretion. People v Mardlin, 487 Mich 609, 614; 790 NW2d 607 (2010). We review 

 

1

 Defendant also challenges, for similar reasons, the trial court’s decision to admit his prior 

conviction in his supplemental brief. 
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de novo preliminary questions of law, such as whether a rule of evidence precludes admission. 

Id.

 MRE 404(b)(1) provides, 

 Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, 

or absence of mistake or accident when the same is material, whether such other 

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the 

conduct at issue in the case. 

 The Supreme Court “unanimously confirmed that the opinions in People v VanderVliet, 

444 Mich 52; 508 NW2d 114 (1993), amended 445 Mich 1205; 520 NW2d 338 (1994), People v 

Crawford, 458 Mich 376; 582 NW2d 785 (1998), and People v Sabin (After Remand), 463 Mich 

43; 614 NW2d 888 (2000), ‘continue to form the foundation for a proper analysis of MRE 

404(b).’ ” Mardlin, 487 Mich at 609 n 6, quoting People v Knox, 469 Mich 502, 510; 674 NW2d 

366 (2004). The Court provided the following MRE 404(b) analysis, summarizing the principles 

set forth in those cases: 

 To admit evidence under MRE 404(b), the prosecutor must first establish 

that the evidence is logically relevant to a material fact in the case, as required by 

MRE 401 and MRE 402, and is not simply evidence of the defendant’s character 

or relevant to his propensity to act in conformance with his character. The 

prosecution thus bears an initial burden to show that the proffered evidence is 

relevant to a proper purpose under the nonexclusive list in MRE 404(b)(1) or is 

otherwise probative of a fact other than the defendant’s character or criminal 

propensity. Evidence relevant to a noncharacter purpose is admissible under 

MRE 404(b) even if it also reflects on a defendant’s character. Evidence is 

inadmissible under this rule only if it is relevant solely to the defendant’s 

character or criminal propensity. Stated another way, the rule is not exclusionary, 

but is inclusionary, because it provides a nonexhaustive list of reasons to properly 

admit evidence that may nonetheless also give rise to an inference about the 

defendant’s character. Any undue prejudice that arises because the evidence also 

unavoidably reflects the defendant’s character is then considered under the MRE 

403 balancing test, which permits the court to exclude relevant evidence if its 

“probative value is substantially outweighed by the danger of unfair prejudice....” 

MRE 403. Finally, upon request, the trial court may provide a limiting instruction 

to the jury under MRE 105 to specify that the jury may consider the evidence only 

for proper, noncharacter purposes. [Mardlin, 487 Mich at 615-616 (citations 

omitted).] 

 The first inquiry, whether the prosecutor showed that defendant’s prior conviction is 

relevant to a proper noncharacter purpose under MRE 404(b)(1), requires us to evaluate the 

materiality and probative value of the evidence. Crawford, 458 Mich at 388. “Materiality is the 
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requirement that the proffered evidence be related to ‘any fact that is of consequence’ to the 

action.” Id.

 In this case, the prosecutor sought to admit evidence regarding defendant’s prior 

conviction to show defendant’s intent, knowledge, and plan or scheme in committing an act. The 

prosecutor noted that the defense’s theory was that defendant never intended to participate in the 

armed robbery, he only agreed to go to the scene, and left the scene before his codefendants 

committed the crime. Armed robbery is a specific intent crime that requires the prosecution to 

show that defendant intended to permanently deprive the owner of the property. People v King, 

210 Mich App 425, 428; 534 NW2d 534 (1995). Additionally, the crime of first-degree home 

invasion may be established by showing, among other things, that defendant broke and entered 

the dwelling intending to commit a felony. MCL 750.110a; People v Baker, 288 Mich App 378, 

384-385; 792 NW2d 420 (2010). “It is well established in Michigan that all elements of a 

criminal offense are ‘in issue’ when a defendant enters a plea of not guilty.” Crawford, 458 

Mich at 389. Therefore, defendant’s intent and knowledge were material to a fact of 

consequence, specifically to show that he committed all the elements of the charged offenses 

beyond a reasonable doubt. 

 “The probative force inquiry asks whether the proffered evidence tends ‘to make the 

existence of any fact that is of consequence to the determination of the action more probable or 

less probable than it would be without the evidence.’ ” Crawford, 458 Mich at 389-390. Any 

tendency is sufficient, but under MRE 404(b), the evidence “truly must be probative of 

something other than the defendant’s propensity to commit the crime.” Id. at 390. For example, 

in Crawford, the question was “whether the prosecutor carried its burden of demonstrating that 

the defendant’s prior conviction establishes some intermediate inference, other than the improper 

inference of character, which in turn is probative of the ultimate issues in this case, the 

defendant’s knowledge of the presence of cocaine and his intent to deliver it.” Id. at 391. 

 In this case, the prosecution sought to admit the evidence of defendant’s prior conviction 

to show that the conduct was very similar to the conduct of the charged offenses, in order to 

show defendant’s intent and knowledge. The similarities between the past conduct and the 

charged offenses were striking, as to establish a sufficient factual nexus between the two. 

Crawford, 458 Mich at 395-396. There was testimony that in both cases, defendant orchestrated 

the plan. Specifically, he acted with his cousin and recruited others to help, he drove the car and 

denied involvement in the act, he had inside information regarding the dwellings, and he went 

out of his way to silence the others involved while in jail. Further, in both cases phones were 

removed from the dwellings so the victims could not call the police and the suspects wore socks 

on their hands. Thus, the proffered evidence was highly probative to show that defendant 

employed a similar plan in doing an act in this case, see Mardlin, 487 Mich at 621, and to 

overcome the improper inference of character, see Crawford, 458 Mich at 391. Therefore, the 

trial court did not abuse its discretion in determining that the prosecutor established that 

defendant’s prior conviction was relevant to a proper noncharacter purpose under MRE 

404(b)(1). 

 However, in deciding to admit the proffered evidence, the trial court did not address the 

second inquiry, i.e., whether the probative value of the evidence is substantially outweighed by 

the danger of unfair prejudice under MRE 403. VanderVliet, 444 Mich at 74-75. Nevertheless, 
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we conclude that although the trial court was required to consider the prejudicial effect of the 

evidence, the failure to do so was harmless error. Specifically, the probative value of the 

evidence was not substantially outweighed by the danger of unfair prejudice. MRE 403 does not 

prohibit prejudicial evidence. Rather, it prohibits evidence that is unfairly prejudicial. 

Crawford, 458 Mich at 398. “Evidence is unfairly prejudicial when there exists a danger that 

marginally probative evidence will be given undue or preemptive weight by the jury.” Id.

 As discussed, in this case, the strong similarities between the past conduct and conduct of 

the charged offenses was highly probative to show that defendant employed a similar plan in 

doing an act in this case. Although the conduct leading to defendant’s prior conviction occurred 

in 2001, given the similarities between the past conduct and the conduct of the charged offenses, 

the factual relationship of the evidence was not too remote to draw a permissible intermediate 

inference of defendant’s intent in the present case. Cf. id. at 395-396 (finding that where the past 

conduct was factually dissimilar, the factual relationship between the prior conviction and 

charged offense was too remote for the jury to draw a permissible intermediate inference of the 

defendant’s intent). In this case, the strong similarities between the conduct likely overshadowed 

any impermissible character evidence. 

 Further, although the prosecutor did emphasize defendant’s prior conviction during 

closing argument to show the similarities to the charged offenses and to argue that defendant was 

the mastermind in the present case, unlike in Crawford, the evidence was not “paraded” in front 

of the jury throughout the entire trial. Crawford, 458 Mich at 400 n 17. Rather, the evidence 

was not presented until the last day of the seven-day trial, and the first six days involved the 

testimony of numerous witnesses to the charged offenses. Moreover, the prosecutor gave a long 

closing argument in which she detailed all the other evidence presented and argued that there 

was sufficient evidence in the witnesses’ testimony to convict defendant beyond a reasonable 

doubt. Additionally, the trial court provided limiting instructions to the jury before the testimony 

regarding defendant’s prior conviction and in the closing jury instructions. 

 Finally, there was sufficient evidence to convict defendant beyond a reasonable doubt 

without the proffered evidence. As stated in Crawford, “Error requires reversal only if it is 

prejudicial. The prejudice inquiry focuses on the nature of the error and assesses its effect in 

light of the weight and strength of the untainted evidence.” Crawford, 458 Mich at 399-400 

(internal quotations and citation omitted). The prosecution presented approximately 15 

witnesses who could link defendant to the charged offenses. Given that credibility is for the jury 

to decide, People v Unger (On Remand), 278 Mich App 210, 222; 749 NW2d 272 (2008), these 

witnesses provided substantial evidence to prove defendant guilty of the charged offenses 

beyond a reasonable doubt, without the proffered evidence. Therefore, we conclude that the trial 

court did not abuse its discretion by admitting evidence of defendant’s prior conviction under 

MRE 404(b). 

B. PROSECUTORIAL MISCONDUCT 

 Next, defendant argues that the prosecutor committed misconduct during rebuttal closing 

argument by appealing to the jury’s civic duty when she stated, “don’t let [defendant] get away 

with it.” We disagree. Because defendant failed to preserve this issue for appellate review by 

timely and specifically objected to the error below, Unger, 278 Mich App at 234-235, we review 
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this issue for plain error affecting defendant’s substantial rights. People v Thomas, 260 Mich 

App 450, 453-454; 678 NW2d 631 (2004). Reversal is only warranted if defendant was actually 

innocent and the plain error caused defendant to be convicted or “if the error ‘seriously affected 

the fairness, integrity, or public reputation of judicial proceedings,’ regardless of defendant’s 

innocence.” Id. at 454, quoting People v Ackerman, 257 Mich App 434, 449; 669 NW2d 818 

(2003). 

 “Given that a prosecutor’s role and responsibility is to seek justice and not merely 

convict, the test for prosecutorial misconduct is whether a defendant was denied a fair and 

impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “Issues of 

prosecutorial misconduct are decided case by case, and this Court must examine the entire record 

and evaluate a prosecutor’s remarks in context.” Id. at 64. 

 The alleged misconduct occurred during the prosecutor’s rebuttal closing argument: 

 In the end of the closing argument by the defense, the thing that struck me 

the most like a hammer to the head was what a waste. What a waste, huh? A 

mind is a beautiful thing or a terrible thing to waste. This defendant clearly is an 

intelligent, articulate guy. He unfortunately has used his God-given talent to 

commit crime. 

 And he manipulated and schmoozed and talked and whatever his way into 

accessory after the fact the first time. But he won’t do that again. He obviously 

didn’t get what he wanted, or we wouldn’t be here. 

Don’t let him get away with this again. Find him guilty of armed robbery, 

home invasion, and conspiracy to commit armed robbery, and felony firearm, 

because he had every chance to pull out if he wanted to. 

 And this is the man—this is the man who called the shots, and he is still 

doing it to this very day. Don’t let him get away with it. Find him guilty. 

[Emphasis added.] 

 While prosecutors are afforded great latitude in their arguments, “it is improper for a 

prosecutor to appeal to the jury’s civic duty by injecting issues broader than guilt or innocence or 

encouraging jurors to suspend their powers of judgment.” Thomas, 260 Mich App at 455-456. 

By saying, “don’t let him get away with it,” the prosecutor, to an extent, did cross the line into a 

civic duty argument. However, a prosecutor’s remarks must be evaluated in light of defendant’s 

arguments, id. at 454, and “an otherwise improper remark may not rise to an error requiring 

reversal when the prosecutor is responding to the defense counsel’s argument.” People v 

Kennebrew, 220 Mich App 601, 608; 560 NW2d 354 (1996). 

 Defendant’s theory was that he was not involved in the armed robbery and home 

invasion, and that while he agreed to drive to the scene, he left when he realized what the others 

were going to do. Defense counsel read a closing argument prepared by defendant, in which he 

accused most of the witnesses of lying and accused the prosecution of intimidating witnesses. 

He also used the closing argument to provide his own account of what happened, despite the fact 

he did not testify, and in doing so, he also referenced many statements and facts not in evidence. 
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Further, he requested that the jury never lose sight of the goal, which is justice, and to “send this 

innocent man home to his family.” Therefore, when taken in context, it seems the prosecutor 

was attempting to respond to defendant’s closing argument by arguing that defendant was 

essentially the mastermind and knew how to manipulate the system, given that the evidence 

showed that he coordinated an armed robbery years prior, yet received a lesser conviction. The 

prosecutor’s statements were responsive to defendant’s arguments and a fair comment on the 

evidence presented. Thomas, 260 Mich App at 456. The statements were made during rebuttal 

and did not appear to be an attempt by the prosecutor to inject issues broader than guilt or 

innocence or to encourage jurors to suspend their powers of judgment. Id. Finally, any minimal 

prejudice that could have been caused by these brief statements was cured by the trial court’s 

instructions to the jury. Id. Accordingly, we conclude that defendant has failed to establish an 

instance of prosecutorial misconduct warranting relief. 

II. SUPPLEMENTAL BRIEF ISSUES 

A. PROSECUTORIAL MISCONDUCT 

 Defendant also asserts claims of prosecutorial misconduct in his supplemental brief. 

Because defendant failed to preserve any of the claims at trial, our review is for plain error 

affecting defendant’s substantial rights. Thomas, 260 Mich App at 453-454. We conclude that 

defendant has failed to establish any instances of prosecutorial misconduct warranting relief. 

 Defendant first argues that the prosecutor knew that one of the codefendants, Nicholas 

Green, falsified the details of his plea agreement and rather than correct the error the prosecutor 

bolstered it. A “prosecutor may not knowingly use false testimony to obtain a conviction” and 

has a duty to correct false testimony, especially as it relates to a witness’s credibility. People v 

Lester, 232 Mich App 262, 276-277; 591 NW2d 267 (1998), overruled on other grounds by 

People v Chenault, 495 Mich 142; 845 NW2d 731 (2014). 

 At trial, Green testified that he pleaded guilty to conspiracy to commit armed robbery and 

was sentenced to serve 4 to 40 years in prison. He testified that he thought he only “got a few 

months off” for testifying, because his minimum sentencing guidelines were 51 to 85 months. 

On appeal, defendant argues that this statement was a “gross misrepresentation and wholly 

false.” However, other than to state that Green had other charges dismissed, defendant does not 

explain how much of a lesser sentence Green received for testifying. On this record, Green did 

receive a downward departure of a few months when his minimum sentence of 4 years is 

compared to the minimum guidelines range of 51 months. Accordingly, there is no indication 

that Green testified falsely with regard to his plea deal. Further, even if Green gave false 

testimony, there is not a “reasonable likelihood that the false testimony could have affected the 

judgment of the jury.” People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009) 

(internal quotation marks and citation omitted). The fact that Green received leniency for 

testifying was still made known to the jury and directly affects his credibility. 

 Second, defendant argues that the prosecutor knowingly misrepresented his prior 

conviction when obtaining its admissibility under MRE 404(b), because she had a duty to know 

the evidence. However, on this record, there is no indication that the prosecutor intentionally 

misrepresented defendant’s prior conviction. When defense counsel argued the motion to 
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exclude the evidence under MRE 404(b), even she did not reference the correct conviction. It 

was not until a week later, that both the prosecutor and defense counsel reviewed the file and 

learned that defendant had pled guilty to accessory after the fact and not conspiracy to commit 

armed robbery. Further, as the trial court correctly noted, a conviction was not necessary to 

admit evidence of defendant’s past conduct under MRE 404(b). Accordingly, there is no 

indication that defendant was denied a fair trial in this regard. 

 Third, defendant argues that prosecutor mischaracterized the evidence numerous times. 

To support this argument, defendant asks this Court to compare numerous transcript citations of 

statements made during the prosecutor’s opening statement and closing argument to the actual 

testimony. “Opening statement is the appropriate time to state the facts that will be proved at 

trial.” People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010). A review of the 

prosecutor’s opening statement does not indicate misconduct. Rather, “the prosecutor was 

simply summarizing the anticipated testimony” and “providing a fair view of what the evidence 

would show.” Id.

 Likewise, a review of the prosecutor’s closing argument does not indicate misconduct. 

“A prosecutor may not make a factual statement to the jury that is not supported by the evidence, 

but he or she is free to argue the evidence and all reasonable inferences arising from it as they 

relate to his or her theory of the case.” Dobek, 274 Mich App at 66 (internal citations omitted). 

The record shows that the prosecutor was simply arguing the evidence and any reasonable 

inferences. While some of the citations to the testimony that defendant provided did not support 

what the prosecutor said during opening statement or closing argument, a review of the record 

indicates that the prosecutor’s characterization of the evidence came from testimony of other 

witnesses not cited by defendant and reasonable inferences from all of the evidence presented. 

Simply because those inferences may be different than defendant’s inferences does not make 

them unreasonable as to amount to misconduct. 

 Fourth, defendant argues that the prosecutor intimidated witnesses. He first asserts that 

the prosecutor forced all the witnesses to testify at the investigative subpoena hearings by 

threatening them with perjury charges. Defendant cites the transcripts of some of the witnesses’ 

investigative subpoena hearings, but fails to provide those to this Court for review. As the 

appellant, defendant has the burden “of furnishing the reviewing court with a record to verify the 

factual basis of any argument upon which reversal was predicated.” People v Elston, 462 Mich 

751, 762; 614 NW2d 595 (2000). Therefore, we decline to address this claim. 

 Defendant also asserts that the prosecutor intimidated one witness, Monique Gilmore, 

into testifying at trial. However, the record does not support this assertion. From the beginning 

of her testimony, it was clear that Gilmore was hesitant to testify and would only respond with 

one or two words. The prosecutor was having a difficult time getting her to answer the questions 

in their entirety, and after many attempts, the trial court allowed the prosecutor to ask leading 

questions, and essentially treat the witness as a hostile witness, which is permitted under MRE 

611(d)(1). On appeal, defendant does not specifically challenge this decision. 

 Further, it is evident from the record that any hesitancy Gilmore displayed in testifying 

was caused by defendant’s behavior and not a result of intimidation by the prosecutor. The 

record reveals that defendant called Gilmore fifty times since he was incarcerated, blaming her 
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for putting him in jail. Based on comments made by the prosecutor during Gilmore’s testimony, 

it is evident that while testifying, Gilmore would look to defendant with hesitancy before 

speaking. Moreover, Gilmore testified on direct examination that she did not feel pressured to 

testify at trial. Although she stated on cross-examination that she felt pressure to testify during 

the investigative subpoena hearing, she also stated that she answered the questions truthfully, 

with the exception of what she meant by the phrase “hit a lick,” and that she did not “find herself 

just agreeing with what [the prosecutor and detective] said.” Accordingly, on this record, there is 

no indication that the prosecutor intimidated Gilmore into testifying. 

 Fifth, defendant argues that the prosecutor appealed to the jury’s sympathy during 

opening statement by providing the background of the victims and what type of people they 

were, by stating that one of the victims had scoliosis and is permanently disabled, and by stating 

that the victims were terrorized by the robbery. However, when read in context, it appears that 

the prosecutor provided the background information of the victims to show that one of the 

victims was legally authorized to grow medical marijuana and that the victims were not the type 

of people to be involved in illegal drug usage. There is no indication that the prosecutor’s 

statement was a blatant appeal to the jury to sympathize with the victims, and the statements 

were “not so inflammatory as to prejudice defendant.” People v Watson, 245 Mich App 572, 

591; 629 NW2d 411 (2001). 

 Defendant also argues that the prosecutor injected race into the trial during opening 

statement by repeating a comment made by one of the codefendants, Darell Boyd to Green that 

Boyd regretted not “killing the honkey.” However, “the prosecutor was simply summarizing the 

anticipated testimony,” Ericksen, 288 Mich App at 200, and defendant does not explain how this 

isolated statement that reflected the evidence injected race into the trial. 

 Defendant further argues that the prosecutor used the opening statement to comment on 

the credibility of witnesses, alluded to facts not in evidence, and manipulated evidence. 

However, defendant provides no citations to the record to support these assertions. “An 

appellant may not merely announce his position and leave it to this Court to discover and 

rationalize the basis for his claims, nor may he give only cursory treatment with little or no 

citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 

(1998). Therefore, we decline to address this issue. 

 Moreover, the trial court instructed the jury that the attorneys’ statements were not 

evidence, which is sufficient to cure any minimal prejudice that might have been caused by the 

statements made during the prosecutor’s opening statement. Thomas, 260 Mich App at 456. 

 Finally, defendant argues that throughout trial the prosecutor did not allow the jury to 

evaluate the evidence for themselves, bolstered witness testimony, vouched for the credibility of 

the witnesses, expressed her personal belief as to the credibility of the witnesses, and provided 

her opinion on disputed facts. To support these assertions, defendant provides over 100 citations 

to the record, but fails to explain how each citation referenced amounts to prosecutor 

misconduct. We will not rationalize the basis for defendant’s claims; therefore, we decline to 

address this issue. Kelly, 231 Mich App at 640-641. 
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 In sum, we conclude that defendant has failed to establish any instances of prosecutorial 

misconduct warranting relief. 

B. INACCURATE TRIAL TRANSCRIPTS 

 Next, defendant asserts that a remand is necessary to correct omissions in the trial 

transcripts. We disagree. There is presumption that the transcripts provided are accurate. This 

Court has stated, 

to overcome the presumption of accuracy and be entitled to relief, a petitioner 

must satisfy the following requirements: (1) seasonably seek relief; (2) assert with 

specificity the alleged inaccuracy; (3) provide some independent corroboration of 

the asserted inaccuracy; (4) describe how the claimed inaccuracy in transcription 

has adversely affected the ability to secure postconviction relief pursuant to 

subchapters 7.200 and 7.300 of our court rules. [People v Abdella, 200 Mich App 

473, 476; 505 NW2d 18 (1993).] 

 First, defendant did not seasonably seek relief with the trial court. There is no indication 

that the defendant demanded a review of the audiotapes or even brought the issue to the trial 

court’s attention. See id. Further, defendant did not provide any independent corroboration of 

the asserted inaccuracies. This Court observed that a defendant may provide independent 

corroboration of an asserted inaccuracy by submitting “affidavits of witnesses, trial spectators, 

police officers, court personnel, or attorneys,” or through “references to police reports or 

preliminary examination transcripts, or perhaps to trial circumstances that demonstrate the 

position of the petitioner, such as noting that if the witness whose testimony is claimed to have 

been transcribed inaccurately had actually testified as transcribed, then the final arguments 

would have been different.” Id. at 476 n 2. Finally, other than to assert that he wanted to use the 

omissions to show that the prosecution vouched for the credibility of witnesses and intimidated 

witnesses, and to argue defense counsel was ineffective, defendant does not explain on appeal 

how the inaccuracies adversely affect his ability to secure postconviction relief. Essentially, 

defendant only seeks a remand, which this Court already denied,2

 and because defendant has not 

asserted any alleged inaccuracy with specificity, or submitted any affidavit or other offer of 

proof in support of the existence of any specified inaccuracy, he has not demonstrated that a 

remand is necessary. See MCR 7.211(C)(1)(a). 

C. UNLAWFUL SEARCH AND SEIZURE 

 Next, defendant argues that he was subjected to an unlawful search and seizure when the 

detectives searched his jail cell and confiscated confidential attorney-client communications that 

revealed his defense strategy. We disagree. “A determination regarding whether a party has 

received due process is a question of law reviewed de novo.” People v Odom, 276 Mich App 

407, 421; 740 NW2d 557 (2007). 

 

2 People v Warren, unpublished order of the Court of Appeals, entered November 13, 2014 

(Docket No. 318968). 
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 Both the United States Constitution and the Michigan Constitution guarantee the right of 

persons to be secure against unreasonable searches and seizures. US Const, Am IV; Const 1963, 

art 1, § 11. However, it is well-settled “that prisoners have no legitimate expectation of privacy 

and that the Fourth Amendment’s prohibition on unreasonable searches does not apply in prison 

cells.” Hudson v Palmer, 468 US 517, 530; 104 S Ct 3194; 82 L Ed 2d 393 (1984). This rule 

has been extended to “pretrial detainees and inmates confined in jails.” People v Phillips, 219 

Mich App 159, 162; 555 NW 2d 741 (1996). Thus, to the extent defendant argues that he was 

subjected to an unreasonable search in his jail cell, his argument is without merit. 

 However, government intrusion into confidential attorney-client communications may 

violate a defendant’s right to the effective assistance of counsel under the Sixth Amendment. 

Weatherford v Bursey, 429 US 545, 558; 97 S Ct 837; 51 L Ed 2d 30 (1977). This depends on 

whether the intrusion was purposeful and whether the prosecution obtained evidence of the 

defense strategy. Id.; see also Arizona v Pecard, 196 Ariz 371, 377; 998 P 2d 453 (1999). 

 In this case, although the intrusion into defendant’s cell was intentional, the purpose was 

not to intercept attorney-client communications, but to look for letters exchanged between the 

codefendants in the case. As soon as the prosecutor was made aware via a telephone call from 

the detective conducting the search that some of the documents recovered from defendant’s jail 

cell were police reports and witnesses statements, and there were also documents that contained 

defendant’s handwritten notes, the prosecutor specifically instructed the detective to immediately 

seal any documents that may resemble legal correspondence and turn it over to defense counsel. 

The documents were out of defendant’s possession for two days, and defendant acknowledged 

that nothing was missing. There is no indication on this record that the prosecutor received any 

evidence of the defense strategy or confidential attorney-client communications. Weatherford, 

429 US at 558. 

D. RIGHT TO SPEEDY TRIAL 

 Next, defendant argues that he was denied his constitutional right to a speedy trial. We 

disagree. Whether a defendant is denied the right to a speedy trial is an issue of constitutional 

law that this Court reviews de novo. People v Williams, 475 Mich 245, 250; 716 NW2d 208 

(2006). 

 Criminal defendants are guaranteed the right to a speedy trial, US Const, Am VI, Const 

1963, art 1, § 20, which is enforced by statute, MCL 768.1, and court rule, MCR 6.004(A). 

Williams, 475 Mich at 261. “The time for judging whether the right to a speedy trial has been 

violated runs from the date of the defendant’s arrest.” Id. This Court balances four factors, 

known as the Barker3

 factors: “(1) the length of delay, (2) the reason for delay, (3) the 

defendant’s assertion of the right, and (4) the prejudice to the defendant.” Id. at 261-262. 

Prejudice is presumed with a delay of 18 months or more. Id. at 262. 

 

3 Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). 
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 First, the length of defendant’s delay was approximately 14 months; therefore, prejudice 

is not presumed. 

 Second, the reasons for the delay are most attributable to delays inherent in the court 

system. The trial was originally scheduled for January 21, 2013, but had to be adjourned three 

times due to the unavailability of the trial judge, who, twice, was in trial on other cases. 

“Although delays inherent in the court system, e.g., docket congestion, ‘are technically 

attributable to the prosecution, they are given a neutral tint and are assigned only minimal weight 

in determining whether a defendant was denied a speedy trial.’ ” People v Gilmore, 222 Mich 

App 442, 460; 564 NW2d 158 (1997), quoting People v Wickham, 200 Mich App 106, 111; 503 

NW2d 701 (1993). 

 Third, defendant never properly asserted his right to a speedy trial. Defendant submitted 

a handwritten motion and letter requesting a speedy trial that was received by the trial court on 

January 15, 2013. However, it appears this handwritten motion and letter was sent to the trial 

judge, as the record contains a letter from the judge to defendant indicating that the judge 

received defendant’s letter requesting a speedy trial, but noted that as the presiding judge he 

“cannot engage in ex parte communications or consider communications made to him outside the 

presence of all of the parties.” The judge informed defendant that he could not consider his 

request and that because he was represented by counsel, all communications with the trial court 

needed to be handled by his attorney. Despite being informed by the trial court, defendant never 

submitted a motion for a speedy trial through his counsel. Additionally, from the time of the first 

adjournment to the trial, defendant never objected to any of the delays, and appears to have 

accepted the trial dates that were offered after each adjournment. 

 Finally, with regard to prejudice to defendant, this Court has stated that “ ‘[t]here are two 

types of prejudice which a defendant may experience, that is, prejudice to his person and 

prejudice to the defense.’ ” Williams, 475 Mich at 264, quoting People v Collins, 388 Mich 680, 

694; 202 NW2d 769 (1972). Defendant argues that but for the delay, his trial strategy would not 

have been seized while he was incarcerated in jail. Therefore, he essentially argues that the 

delay caused prejudice to his defense. However, as discussed above, there is no indication that 

during the search of defendant’s jail cell any privileged attorney-client communication, including 

trial strategy, was read by the prosecution. Nor has defendant shown how he was unable to 

adequately prepare his case due to the delay. See Williams, 475 Mich at 264. Accordingly, we 

conclude that defendant’s constitutional right to a speedy trial was not violated. 

 
-12- 

E. EVIDENTIARY ERRORS 

 Next, defendant argues that the trial court abused its discretion in making various 

evidentiary rulings.4

 We disagree. We review a trial court’s rulings regarding evidentiary 

questions for an abuse of discretion. Mardlin, 487 Mich at 614. 

 First, defendant argues that the trial court denied defendant’s due process rights and right 

to present a defense when it prohibited defendant from admitting investigative subpoena 

transcripts into evidence. Defendant argues that the transcripts would have allowed the jury to 

properly weigh the evidence and were very important to the defense’s closing argument. 

However, defendant merely asserts that the transcripts were admissible. He provides no 

authority to support his position and does not explain how the trial court’s ruling was error. 

Therefore, we need not consider this argument. See Kelly, 231 Mich App at 640-641. However, 

we conclude that, based on the record, the trial court did not abuse its discretion in declining to 

admit the transcripts. At trial, when seeking their admission, defense counsel failed to show how 

the transcripts were relevant, i.e., how they had “any tendency to make the existence of any fact 

that is of consequence to the determination of the action more or less probable than it would be 

without the evidence,” MRE 401, and failed to argue how the transcripts, as extrinsic evidence of 

a prior inconsistent statement, would be admissible under MRE 613(b). 

 Next, defendant argues that the trial court erred when it prohibited defendant from 

inquiring into the details of an affidavit even though the prosecution used the affidavit to attack 

defendant’s character as a manipulator. The affidavit in question was given to Monique Gilmore 

by defendant to sign, essentially recanting all statements made to the police regarding 

defendant’s involvement in the robbery. Gilmore admitted on direct examination that she signed 

the affidavit, which was allegedly written by defendant. On cross-examination, defense counsel 

sought to ask Gilmore questions regarding the content of the affidavit and to comment on its 

truthfulness. The prosecutor objected, arguing that there was no foundation to read from the 

affidavit when the witness had not written it. The trial court agreed and sustained the objection. 

 Defendant does not explain how this ruling was error and does not cite any authority to 

support his argument. Therefore, we need not consider this argument. See Kelly, 231 Mich App 

at 640-641. However, we note that defense counsel wanted Gilmore to testify as to the 

truthfulness of the statements made in the affidavit, which was not written by her. This is a 

classic example of hearsay. MRE 801(c). And given that it had not been proven at trial whether 

defendant actually wrote the affidavit, the statements in the affidavit could not be admitted under 

MRE 801(d)(2), as a party’s own statement. Therefore, there is no indication, on this record, that 

the trial court abused its discretion in preventing Gilmore from testifying about the contents of 

the affidavit. 

 

4

 We note that although defendant’s question presented states that the trial court made rulings 

that prevented defendant from presenting his defense, in his brief, defendant makes no argument 

as to how the alleged errors deprived him of a defense. 
-13- 

 Next, defendant argues that the trial court erred by allowing the prosecution to discuss a 

codefendant’s conviction. The transcript citation defendant provides is a series of questions 

where the prosecutor asks Nicholas Green about contact he has had with the codefendants in the 

case while incarcerated to determine whether any of the codefendants had threatened Green. The 

purpose in eliciting this information was to explain why Green had previously written a 

statement that was inconsistent with his testimony, which Green explained was because he was 

told by one of the codefendants that a hit would be put out on him. 

 Defendant asserts that the trial court erred because the evidence had no proper purpose 

and was overly prejudicial. We disagree. The testimony was offered to show why Green had 

previously made an inconsistent statement, which was highly relevant to Green’s credibility. See 

People v King, 297 Mich App 465, 477; 824 NW2d 258 (2012) (“As the finder of fact, the jury is 

generally entitled to weigh all evidence that might bear on the truth or accuracy of a witness’s 

testimony.”). 

 Next, defendant argues that the trial court erred by repeatedly allowing the prosecutor to 

lead the witnesses to the extent that it was the prosecutor testifying. Defendant cites numerous 

pages of transcripts where he argues the prosecutor asked leading questions, but does not 

actually identify specific questions. “[R]eversal is not required simply because leading questions 

were asked during trial.” Watson, 245 Mich App at 587. Rather, defendant must “show some 

prejudice or pattern of eliciting inadmissible testimony.” Id. (internal quotation marks and 

citation omitted). There are definitely instances where the prosecutor asked leading questions; 

however, the trial court sustained defense counsel’s objections and asked the prosecutor to 

rephrase the question. Further, the trial court permitted the prosecutor to ask Monique Gilmore 

leading questions because, given her hesitancy to testify, it was necessary to develop her 

testimony, which is proper under MRE 611(d)(1). Given that defendant does not even identify 

specific leading questions, it is clear that he has failed to demonstrate any prejudice or a pattern 

of eliciting inadmissible testimony. Therefore, there is no error requiring reversal. 

 Finally, defendant argues that the trial court also erred by allowing a witness to state his 

opinion on defendant’s guilt. However, the witness defendant refers to, Anthony Lackey, was 

not asked whether defendant was guilty. Rather, he testified as to what he knew regarding 

defendant’s involvement in the robbery. His testimony that defendant was involved was based 

on statements made to him by defendant, stolen items he saw in defendant’s presence, and the 

fact that he was asked to participate in the robbery, but he did not do so. Accordingly, the trial 

court did not err in this regard. 

 In sum, we conclude that defendant has not identified any evidentiary errors warranting 

relief. 

 
-14- 

F. BRADY VIOLATION 

 Next, defendant asserts a Brady5

 violation, arguing that the prosecutor withheld valuable 

evidence from trial, which included the investigative subpoenas of three witnesses, and the 

recorded interviews of four other witnesses. We disagree. To establish a Brady violation, 

defendant must show that “(1) the prosecution has suppressed evidence; (2) that is favorable to 

the accused; and (3) viewed in its totality, is material.” Chenault, 495 Mich at 155. 

 Defendant has failed to show that the evidence in question was suppressed. He seems to 

argue that because defense counsel did not cross-examine the witnesses regarding the 

investigative subpoenas, that they were clearly withheld from the defense. However, defense 

counsel sought admission of the transcripts of all the investigative subpoenas at trial. This 

directly rebuts defendant’s claim that investigative subpoenas were withheld. 

 Additionally, with regard to the recorded interviews, defendant does not even know 

whether the interviews were recorded. He merely states that the witnesses “all were said to have 

been recorded while being interviewed,” but provides no proof that they actually were. Based on 

the record, there is no indication that recorded interviews existed. Moreover, two of the 

witnesses he mentions did not even testify at trial, and defendant provides no argument as to how 

their interviews were favorable to the accused and why their interviews were material. 

Therefore, defendant has failed to show that prosecutor suppressed evidence in violation of 

Brady. 

G. MIRANDA VIOLATION 

 Next, defendant argues that he did not effectuate a valid Miranda6

 waiver. Defendant 

argues that he invoked his right to remain silent upon arrest and asked for counsel repeatedly in 

the interrogation room. He also argues that the detectives “deceptively signed” the rights card 

when he never agreed to voluntarily talk. He does not argue, however, that his statements were 

coerced in any way. He simply asserts that his waiver was involuntary. However, defendant has 

waived any claim of error. 

 Waiver is defined as “the ‘intentional relinquishment or abandonment of a known right.’ 

” People v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999), quoting United States v 

Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d 508 (1993). “ ‘One who waives his rights 

under a rule may not then seek appellate review of a claimed deprivation of those rights, for this 

waiver has extinguished any error.’ ” People v Carter, 462 Mich 206, 215; 612 NW2d 144 

(2000), quoting United States v Griffin, 84 F 3d 912, 924 (CA 7, 1996). Defense counsel 

 

5 Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). 

6 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 
-15- 

stipulated at trial that the videotape of defendant’s interview showed that defendant was read his 

rights and initialed the rights card, and defendant did not contest this at trial. This Court has 

stated, “While the defendant must personally make an informed waiver for certain fundamental 

rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be 

effected by action of counsel.” Id. at 218. “[C]ounsel has full authority to manage the conduct 

of the trial and to decide matter of trial strategy.” Id. at 218-219. Therefore, stipulating to the 

contents of a videotape that defense counsel watched is a waiver that could be effected by the 

action of defense counsel. See Id. Accordingly, because defense counsel stipulated that 

defendant was read his rights and initialed the rights card indicating so, defendant cannot not 

now claim error on appeal.7

H. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Finally, defendant argues that he was denied his right to the effective assistance of 

counsel in various ways. We disagree. Our review is “limited to mistakes apparent from the 

record,” People v Brown, 279 Mich App 116, 140; 755 NW2d 664 (2008), because defendant

was unable to demonstrate that further factual development of the record necessitated a remand. 

People v Warren, unpublished order of the Court of Appeals, entered November 13, 2014 

(Docket No. 318968). “The denial of effective assistance of counsel is a mixed question of fact 

and constitutional law, which are reviewed, respectively, for clear error and de novo.” Brown, 

279 Mich App at 140. 

 Criminal defendants have a right to the effective assistance of counsel under the United 

States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20. However, 

effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving 

otherwise. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). To establish that a 

defendant’s trial counsel was ineffective, a defendant must show: (1) that counsel’s performance 

fell below an objective standard of reasonableness under prevailing professional norms and (2) 

that there is a reasonable probability that, but for counsel’s error, the result of the proceedings 

would have been different. Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 

2d 674 (1984). See also Vaughn, 491 Mich at 669. Defendant must also overcome the strong 

 

7

 We also note that there is no indication on this record that defendant did not knowingly and 

intelligently waive his rights. The detectives who interviewed defendant testified that defendant 

did not ask for a lawyer when he was arrested; instead, he said, “Take me to jail.” The detectives 

also testified that defendant initialed the advice of rights card that was read to him, which 

indicated that his rights were read to him and that he waived those rights. Further, defendant’s 

arguments on appeal indicate that he was well aware that he did not have to speak if he wished to 

have counsel present; yet he acknowledges that he made statements during the interview, despite 

claiming he kept insisting on counsel and knew that he did not have to speak. See People v 

Cheatham, 453 Mich 1, 29; 551 NW2d 355 (1996) (“To establish a valid waiver, the state must 

present evidence sufficient to demonstrate that the accused understood that he did not have to 

speak, that he had the right to the presence of counsel, and that the state could use what he said in 

a later trial against him.”). 
-16- 

presumption that counsel’s performance constituted sound trial strategy. People v Dixon, 263 

Mich App 393, 396; 688 NW2d 308 (2004). 

 First, defendant argues that counsel was ineffective for failing to investigate a witness, 

Edwin Gomez-Rivera. “Decisions regarding whether to call or question witnesses are presumed 

to be matters of trial strategy.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 

(2012). “[T]he failure to call witnesses only constitutes ineffective assistance of counsel if it 

deprives the defendant of a substantial defense.” Dixon, 263 Mich App at 398. “A substantial 

defense is one that might have made a difference in the outcome of the trial.” People v Kelly, 

186 Mich App 524, 526; 465 NW2d 569 (1990). “Similarly, ‘[t]he failure to make an adequate 

investigation is ineffective assistance of counsel if it undermines confidence in the trial’s 

outcome.’ ” Russell, 297 Mich App at 717, quoting People v Grant, 470 Mich 477, 493; 684 

NW2d 686 (2004). 

 Defendant contends that Green lived with Rivera at the time of the robbery, and when 

Green arrived at home later that evening, he told Rivera that defendant never committed the 

robbery. Defendant argues that he was deprived of a substantial defense because Rivera’s 

testimony would have undermined Green’s testimony, who was the only person tying defendant 

to the alleged offenses. However, other than defendant’s speculation, defendant has not provided 

an affidavit or offer of proof indicating what the proposed testimony would have been. People v 

Davis, 250 Mich App 357, 369; 649 NW2d 94 (2002). 

 Further, assuming defendant’s claims regarding Rivera’s testimony were true, Rivera 

would have testified regarding an out-of-court statement made by Green. The statement, 

allegedly indicating that defendant did not commit the robbery, would have been offered to 

prove that defendant did not in fact commit the robbery. This is a classic example of hearsay 

testimony. Defendant provides no argument that this hearsay testimony would have been 

admissible under any of the exceptions provided in the Michigan Rules of Evidence.8

 Therefore, 

defendant has not overcome the strong presumption that counsel’s failure to investigate or call 

Rivera as a witness was sound trial strategy. 

 Next, defendant argues that counsel was ineffective for failing to move for a Walker9

hearing, with regard to the validity of his Miranda waiver. Defendant’s claim depends on 

whether he can establish a valid basis to move for a Walker hearing. A Walker hearing is 

designed to test the voluntariness of a confession. People v Ray, 431 Mich 260, 269; 430 NW2d 

 

8

 Given that the robbery had ended several hours prior to Green returning home and Green did 

not have any of the stolen items in his possession, it unlikely that any statements regarding 

defendant’s involvement made to Rivera were made “during the course and in furtherance of the 

conspiracy” as to fall under MRE 801(d)(2). Further, it would be difficult to admit the statement 

under any of the exceptions listed in MRE 803, such as present sense impression or excited 

utterance, given that the robbery and home invasion had occurred hours prior to Green returning 

to Rivera’s townhouse and allegedly stating defendant was not involved in the robbery. 

9 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). 
-17- 

626 (1988). However, defendant has failed to prove that a Walker hearing was necessary or 

would have been successful where, as we have determined, the record indicates that defendant’s 

statements were in fact voluntary. Further, although the portion of the interview that was played 

for the jury was not transcribed or provided to this Court, there is no mention throughout the trial 

that the tape even contained a confession by defendant, which is what a Walker hearing would 

have addressed. Therefore, defendant has failed to show that counsel was ineffective for failing 

to move for a Walker hearing. See People v Goodin, 257 Mich App 425, 433; 668 NW2d 392 

(2003) (stating that defense counsel is not ineffective for failing to make a meritless motion). 

 Next, defendant argues counsel was ineffective for disclosing the defense strategy to the 

prosecution a week before trial, thereby violating attorney-client privilege. However, defense 

counsel revealed the defense to properly argue a motion to sever the trial of defendant and the 

codefendants, as well as the motion to exclude the other-acts evidence. Defendant merely asserts 

that there is no case law indicating that defense counsel must disclose the defense to properly 

argue a 404(b) motion. He does not show how counsel’s actions did not constitute sound trial 

strategy or provide an alternative argument counsel could have made in arguing the two motions. 

Additionally, there is no indication that counsel violated attorney-client privilege when she only 

revealed the defense’s theory of the case and did not discuss any confidential matters. Therefore, 

defendant has failed to carry his burden to prove that counsel’s actions did not constitute sound 

trial strategy. 

 Next, defendant claims that his attorney told him that he could prepare the closing 

argument for her to read to the jury, which was done over the weekend. Defendant argues that 

counsel was ineffective for informing the jury that defendant only provided his closing argument 

shortly before it was read to the jury and that she did not read the argument as if she believed it. 

However, defense counsel did not tell the jury that defendant provided the argument to her 

shortly before it was read. Rather, she stated that defendant prepared a summary that he wanted 

her to share with the jury and that he “put a great deal of thought and effort into this.” Although 

she stated that the two of them were having a discussion throughout the prosecutor’s closing 

argument, it in no way implied that defendant had just given her the statement to read. 

 Further, there is no indication that counsel did not read the closing argument as if she 

believed it. Most of the argument was interrupted by the prosecutor’s objections, given that 

there were many statements of facts not in evidence, which then prompted the trial court to 

provide further instructions to the jury. It is very reasonable to assume that defense counsel had 

difficulty reading a statement, which was not her own, when she was continuously interrupted. 

Finally, given that the trial court continuously instructed the jury that the attorneys’ arguments 

were not evidence, there is no indication that counsel’s reading of defendant’s statement in any 

way prejudiced defendant or affected the outcome of the trial. Therefore, defendant has failed to 

show how counsel was ineffective in this regard. 

 Next, defendant, who is African American, argues that counsel was ineffective for failing 

to raise a Batson10 challenge. He argues that during the entire jury selection, only four African 

 

10 Batson v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986). 
-18- 

Americans and one Hispanic were seated, and they were also struck by the prosecutor with 

preemptory strikes. Defendant’s claim depends on whether he can establish a valid basis for a 

Batson challenge. 

 The Equal Protection Clause of the Fourteenth Amendment prohibits a party from 

exercising a peremptory challenge to remove a prospective juror solely based on race. Batson v 

Kentucky, 476 US 79, 86-87; 106 S Ct 1712; 90 L Ed 2d 69 (1986). In Batson, the United States 

Supreme Court held that the party challenging the peremptory dismissal must first make a prima 

facie showing of discrimination. Id. at 96. To do so, the opponent must show that: (1) he is a 

member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to 

exclude a member of a certain racial group from the jury pool; and (3) all of the relevant 

circumstances raise an inference that the proponent of the challenge excluded the prospective 

juror on the basis of race. Id.

 Defendant has failed to establish a prima facie showing of discrimination. First, the fact 

that defendant claims that only four African Americans and one Hispanic were seated during the 

entire jury selection process likely indicates that there had been a small number of minorities in 

the jury venire to begin with. Second, of the five minorities that defendant claims11 were 

excused, one was excused for cause by the trial court on agreement of the parties due to a 

medical condition and scheduled surgery. Of the other four, based on the record, the 

circumstances do not raise an inference that the prosecutor excluded the prospective jurors on the 

basis of race. Rather, based on the prospective jurors’ statements, there were other very valid 

reasons as to why the prosecutor may have excused the jurors. 

 Specifically, one juror stated that he was unsure whether he could convict someone 

without physical evidence. He also stated that his past drug usage compromised his ability to 

listen and pay attention to detail. Another juror stated that he was very good friends with a 

prison warden who was like a mother to him and that he was also convicted of a home invasion 

at the age of 16, the same crime defendant was on trial for. Another juror stated that his brother 

was wrongfully convicted in Kent County, where defendant was being tried, of an assault-related 

crime and spent five years in prison. The last juror stated that he had family members who were 

convicted of crimes and that he accused someone of a crime who was never convicted. He 

indicated that these experiences made it uncertain whether he could be impartial and he had a 

difficult time abiding by the presumption of innocence. 

 Finally, the prosecutor peremptorily excused other prospective jurors along with the 

jurors that defendant claims were excused based on race. Presumably, because defendant did not 

raise a challenge as to those prospective jurors, they were Caucasian. Therefore, on this record, 

there is no basis for concluding that the circumstances surrounding the peremptory dismissal of 

any minority juror raised an inference of discrimination, and defendant has not provided 

evidence to the contrary. 

 

11 The record does not disclose the race of the prospective jurors. 
-19- 

 Notably, although defendant claims that the final jury consisted of all Caucasians, our 

Supreme Court stated in People v Knight, 473 Mich 324, 349; 701 NW2d 715 (2005), 

“[p]rotecting a defendant’s right to a fair and impartial jury does not entail ensuring any 

particular racial composition of the jury. The goal of Batson and its progeny is to promote racial 

neutrality in the selection of a jury and to avoid the systematic and intentional exclusion of any 

racial group.” Therefore, the mere fact that minorities were not represented on the jury does not 

provide a basis for raising a Batson challenge. 

 In sum, because defendant has not established a basis for concluding that defense counsel 

could have raised a valid Batson challenge, defense counsel is not ineffective for failing to make 

a meritless motion or objection. Goodin, 257 Mich App at 433. 

 Next, defendant argues that counsel was ineffective for failing to conduct an independent 

investigation of defendant’s record when arguing the motion to exclude evidence of his prior 

conviction, which then allowed counsel “to speak into the record a conviction that never 

occurred.” While defense counsel should have known defendant’s prior conviction when 

arguing the 404(b) motion, the fact that she referenced the wrong conviction did not prejudice 

defendant. The conviction was discussed outside the presence of the jury, and thus, any 

reference to the wrong conviction would not have affected the outcome of the trial. The otheracts evidence concerned conduct that led to the conviction, and the fact that a conviction even 

resulted was irrelevant for purposes of admitting the evidence under MRE 404(b). Finally, as far 

as the record is concerned, the mistake was later corrected by the parties and noted on the record. 

Therefore, defendant has failed to show defense counsel’s actions prejudiced him. 

 Next, defendant argues that counsel was ineffective for failing to impeach several 

witnesses. Defendant identifies 13 witnesses and argues that there were written pretrial 

statements, sworn depositions, police reports, and “case file discovery materials” that would 

have impeached the testimony of those 13 witnesses. Defendant identifies the testimony which 

he believes should have been impeached, but fails to identify what evidence would have 

impeached that testimony. Defendant has failed to sufficiently support his argument; therefore, 

we need not consider it. See Kelly, 231 Mich App at 640-641. Nevertheless, the record indicates 

that defense counsel cross-examined all the witnesses and attempted to highlight any 

inconsistencies in their testimony. Simply because defense counsel did not cross-examine the 

witnesses on all contradictory aspects of their statements does not constitute ineffective 

assistance of counsel. See People v McFadden, 159 Mich App 796, 800; 407 NW2d 78 (1987) 

(“[W]e do not find that failure to impeach [a witness] on all contradictory aspects of his 

preliminary examination and trial testimony was a serious mistake . . . . Rather, [counsel’s] 

decision not to delve into all the differences constituted a matter of trial strategy for which this 

Court will not substitute its judgment.”). 

 Finally, defendant argues that counsel was ineffective for failing to raise objections to the 

various instances of prosecutorial misconduct. Defendant cites over 100 pages of transcripts 

where he argues that defense counsel should have objected. The first set of transcript citations 

reference the prosecutor’s opening statement. Defendant appears to argue that defense counsel 

should have objected during the opening statement because the prosecutor manipulated and 

falsified evidence. However, as discussed supra, a review of the prosecutor’s opening statement 
-20- 

does not indicate misconduct. Accordingly, defense counsel is not ineffective for failing to make 

meritless objections. Goodin, 257 Mich App at 433. 

 The second set of transcript citations reference various witness testimony. Defendant 

appears to argue that there are many instances where the prosecutor manipulated evidence, stated 

facts not in evidence, and bolstered witness testimony that defense counsel never objected to. 

Other than to state in brackets after the referenced page numbers “facts not in evidence” or 

“manipulation of evidence,” for example, defendant fails to explain how each citation referenced 

amounts to prosecutor misconduct that defense counsel should have objected to. Because 

defendant has failed to sufficiently support his argument, we need not consider it. See Kelly, 231 

Mich App at 640-641. Nevertheless, we note that defendant references many of the same 

citations as he did when asserting that the prosecutor committed misconduct, which as discussed 

supra, there were no instances of prosecutorial misconduct warranting reversal. Accordingly, 

defense counsel is not ineffective for failing to make meritless objections. Goodin, 257 Mich 

App at 433. 

 For the reasons outlined above, we affirm defendant’s convictions. 

 Affirmed. 

/s/ Donald S. Owens 

/s/ Kathleen Jansen 

/s/ Christopher M. Murray