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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 12, 2015 

v No. 316224 

Wayne Circuit Court 

ROBERT ANTHONY SMITH, LC No. 12-009631-FC 

 Defendant-Appellant. 

Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of four counts of assault with 

intent to commit murder, MCL 750.83, first-degree home invasion, MCL 750.110a(2), unlawful 

imprisonment, MCL 750.349b, intentional discharge of a firearm from a motor vehicle, MCL 

750.234a, two counts of carrying a dangerous weapon with unlawful intent, MCL 750.226, two 

counts of felon in possession of a firearm, MCL 750.224f, two counts of possession of a firearm 

during the commission of a felony (felony-firearm), MCL 750.227b, and assault with intent to do 

great bodily harm, MCL 750.84.1 Defendant was sentenced, as a fourth habitual offender, MCL 

769.12, to 23 to 50 years’ imprisonment for each assault with intent to commit murder 

conviction; 26 years and 8 months to 50 years’ imprisonment for the first-degree home invasion 

conviction; 20 to 50 years’ imprisonment for the unlawful imprisonment conviction, each 

carrying a dangerous weapon with unlawful intent conviction, each felon in possession of a 

firearm conviction, and the assault with intent to do great bodily harm conviction; 10 to 15 years’ 

imprisonment for the intentional discharge of a firearm from a motor vehicle conviction; and two 

years’ imprisonment for each felony-firearm conviction. We affirm. 

 

1

 The assault with intent to do great bodily harm conviction was imposed in connection with a 

fifth count of assault with intent to commit murder with respect to which the jury found 

defendant guilty of assault with intent to do great bodily harm as a lesser included offense. Also, 

the jury found defendant not guilty of two counts of resisting or obstructing, MCL 750.81d(1). 
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I. DEFENDANT’S PRINCIPAL BRIEF ON APPEAL 

 Defendant first argues that there was insufficient evidence to support his assault with 

intent to commit murder and first-degree home invasion convictions. We disagree. 

 To determine whether there was sufficient evidence to support a conviction, this Court 

reviews the evidence de novo, in the light most favorable to the prosecutor, to determine whether 

a rational trier of fact could have found that the essential elements of the crime were proven 

beyond a reasonable doubt. People v Odom, 276 Mich App 407, 418; 740 NW2d 557 (2007). 

“This Court will not interfere with the trier of fact’s role of determining the weight of the 

evidence or the credibility of witnesses.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 

57 (2008). “All conflicts in the evidence must be resolved in favor of the prosecution.” Id. 

“Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the 

elements of the crime.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010). 

 “The elements of assault with intent to commit murder are (1) an assault, (2) with an 

actual intent to kill, (3) which, if successful, would make the killing murder.” People v Lawton, 

196 Mich App 341, 350; 492 NW2d 810 (1992). “The intent to kill may be proved by inference 

from any facts in evidence.” Id. (quotation marks, brackets, and ellipses omitted). “This Court 

has consistently observed that because of the difficulty of proving an actor’s state of mind, 

minimal circumstantial evidence is sufficient.” People v Ericksen, 288 Mich App 192, 196-197; 

793 NW2d 120 (2010) (quotation marks and brackets omitted). “The use of a lethal weapon will 

support an inference of an intent to kill.” People v Ray, 56 Mich App 610, 615; 224 NW2d 735 

(1974). 

 Defendant contends that there is insufficient evidence to establish his intent to kill for his 

assault with intent to murder convictions. He was convicted of four counts of assault with intent 

to murder, one count with respect to each of the following victims: Quiana Ray, Darryl 

Moncrease, Detroit Police Officer Jelani Dew, and Detroit Police Officer Adrian Singleton. 

 With respect to the counts in which Ray and Moncrease were the victims, Teleshia 

Kirksey testified that, after chasing her on foot around Moncrease’s Dodge Charger parked in 

front of Kirksey’s house on Stoepel Street in Detroit, defendant fired a 9 millimeter gun at the 

Charger driven by Moncrease and in which Ray and Kirksey were passengers, when defendant 

was within 5 to 10 feet of the vehicle. Kirksey saw and heard defendant shoot one time at the 

Charger. Ray testified that she heard three or four gunshots right by the Charger as it pulled off 

on Stoepel Street and that defendant was outside the Charger and very close to it at this point. 

Detroit Police Officer Raymond Diaz, an evidence technician, examined the Charger and 

testified that it contained a bullet impact mark on the passenger side of the vehicle and that the 

metal appeared freshly sheered. Kirksey testified that, during a later confrontation on Burnet 

Street, defendant pointed his gun at Moncrease and threatened to kill Ray and Moncrease unless 

Kirksey left their vehicle and got into defendant’s vehicle. Kirksey testified that defendant shot 

at a blue car after she got into defendant’s vehicle, although she now believes that this blue car 

was not the blue Charger driven by Moncrease. Ray likewise testified that defendant threatened 

to kill Moncrease and Ray during the confrontation on Burnet Street. Ray heard a gunshot 

coming from defendant’s vehicle as it pulled off on Burnet Street, but Ray did not think 

defendant was shooting at her. Moncrease testified that he saw a gun in defendant’s hand during 
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the confrontation on Burnet Street, although defendant did not point the weapon. When 

defendant pulled off, Moncrease heard three or four shots fired inside defendant’s car. 

According to Moncrease, defendant later fired two or three shots from his vehicle toward the 

Charger; Moncrease heard the gunshots when defendant’s car was the only car on the street, 

although Moncrease acknowledged telling the police that he did not see defendant firing at him. 

Moncrease fired back twice. Live rounds of ammunition and a 9 millimeter shell casing were 

recovered from defendant’s vehicle, and the shell casing was determined by a firearm and took 

mark expert to have been fired in the 9 millimeter gun recovered from the basement of the home 

on Stoepel Street where defendant was located during his subsequent shootout with police 

officers. 

 The above evidence supports a reasonable inference that defendant intended to kill Ray 

and Moncrease when he fired his gun at the Charger. Although the respective testimonies of 

Kirksey, Ray, and Moncrease were not entirely consistent with one another regarding precisely 

when and how many times defendant fired his weapon, it is for the trier of fact to determine the 

weight of the evidence and the credibility of the witnesses. Kanaan, 278 Mich App at 619. All 

conflicts in the evidence are resolved in favor of the prosecution when reviewing the sufficiency 

of the evidence. Id. The bullet impact mark found on the passenger side of the Charger by an 

evidence technician further supports the conclusion that defendant fired his weapon at the 

vehicle. In addition, two firearms, including a 9 millimeter, were found in the basement of 

Kirksey’s home on Stoepel Street where defendant was located during his subsequent shootout 

with police officers, and those weapons were not in the basement earlier when the police 

performed a protective sweep of the home. As discussed, a 9 millimeter shell casing matching 

the 9 millimeter gun was recovered from defendant’s vehicle; also, suspected bullet impart marks 

going from the inside to the outside were found on the roof of defendant’s vehicle. Given the 

testimony that defendant used a lethal weapon by firing a gun at the vehicle occupied by Ray and 

Moncrease, defendant’s threats to kill them, and the physical evidence described above, the 

evidence supports a reasonable inference that defendant intended to kill Ray and Moncrease. 

 With respect to the assault with intent to murder charges in which the two police officers, 

Dew and Singleton, were the victims, Dew testified that while talking to witnesses outside 8854 

Stoepel Street regarding the events that morning, Dew and Singleton entered the house. Kirksey 

then entered the house through the kitchen and indicated that defendant was behind her. As Dew 

and Singleton turned from the kitchen to the basement, Dew saw defendant standing on a landing 

area entryway and partly on a step, with a firearm in each hand pointed directly at Dew. Dew 

immediately thought he was going to be shot and began firing his department issued weapon and 

moving backward from the threshold of the stairwell past the stove. Singleton also testified that 

as he and Dew were going toward the steps, Singleton saw defendant standing six to eight feet 

away at the bottom of the steps holding two firearms, one in each hand. Singleton fired four to 

five shots and moved backward while shooting, ending up in the rear cabinet area of the kitchen 

where he could take cover. Dew explained that he fired his weapon because he felt threatened, 

like he was about to die, as he was looking down the barrel of a weapon. Kirksey testified that 

she heard one shot in the kitchen and then saw the police officers shooting back a couple times, 

as the police officers were in the kitchen. Ray similarly testified that she heard one gunshot from 

the kitchen area in the back and then a round of gunshots in succession. 
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 As discussed, two firearms were recovered from the basement where defendant was 

located, including a 9 millimeter gun with a loaded magazine and a fired casing in the chamber 

and a 22 caliber revolver with a fired casing; those firearms had not been there previously when 

a protective sweep of the basement was effectuated. A fired bullet was recovered from a bucket 

underneath the sink; that bullet was later determined by a firearm and tool mark expert to have 

come from the 9 millimeter gun found in the basement. A 22 caliber bullet recovered from the 

door frame of the kitchen door had significant damage; testing on whether it came from the 22 

caliber revolver recovered from the basement was inconclusive, but the bullet was not consistent 

with the weapons of the police officers or Moncrease. 

 The above evidence supports a reasonable inference that defendant intended to kill Dew 

and Singleton when he fired one or both of his firearms at them. The officers saw defendant 

holding two firearms, one in each hand, pointed directly at Dew. The officers fired their 

weapons as they retreated for cover into the kitchen, and the physical evidence supports the 

conclusion that defendant fired at the officers. Accordingly, a jury could reasonably infer from 

defendant’s use of a lethal weapon that he intended to kill Dew and Singleton. See Ray, 56 Mich 

App at 615. 

 Next, defendant challenges the sufficiency of the evidence with respect to his first-degree 

home invasion conviction. The elements of first-degree home invasion are: (1) the defendant 

either broke and entered a dwelling or entered a dwelling without permission; (2) the defendant 

either intended when entering to commit a felony, larceny, or assault in the dwelling or at any 

time while entering, present in, or exiting the dwelling committed a felony, larceny, or assault; 

and (3) while the defendant was entering, present in, or exiting the dwelling, he was either armed 

with a dangerous weapon or another person was lawfully present in the dwelling. People v 

Wilder, 485 Mich 35, 43; 780 NW2d 265 (2010). Defendant contends that there was no 

evidence that he broke into the dwelling. Defendant’s statement of questions presented suggests 

that he also seeks to challenge whether he intended when entering to commit an assault in the 

dwelling. Defendant fails to present an argument on the latter point. “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). We will 

nonetheless address the issue. 

 “Under Michigan law, any amount of force used to open a door or window to enter the 

building, no matter how slight, is sufficient to constitute a breaking. There is no breaking if the 

defendant had the right to enter the building.” People v Toole, 227 Mich App 656, 659; 576 

NW2d 441 (1998) (citation omitted). Kirksey testified that defendant’s name was not on the 

lease agreement for her home and that defendant had no keys or possessory rights to the house. 

Kirksey explained that at approximately 4:20 a.m. or 4:30 a.m. on July 28, 2012, she and her 

boyfriend, Brandon Wright, were sleeping on the couch in the living room while her five 

children were sleeping in the back room on the same floor. Kirksey heard two banging noises on 

the back door, which was locked. Kirksey explained that the top lock of the door worked, but 

the bottom lock did not. Kirksey later noticed that the wooden frame on the back door where the 

lock goes was bent, and it had not been bent like that when she had locked the door. After 

hearing the banging noises coming from the back door, Kirksey looked up and saw defendant. 

Defendant walked toward the living room, held his phone up, looked at Wright, and then walked 
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up the steps toward Kirksey’s bedroom. Defendant was not expected or invited there and 

Kirksey did not want him there. As defendant went up the steps, Kirksey jumped off the couch 

and ran out of the house through the front door. It is true that Wright’s statement indicated only 

that he heard a noise at the back door and that he and the person who entered exchanged a 

greeting of “what’s up” when the person entered. However, “[t]his Court will not interfere with 

the trier of fact’s role of determining the weight of the evidence or the credibility of witnesses.” 

Kanaan, 278 Mich App at 619. “All conflicts in the evidence must be resolved in favor of the 

prosecution.” Id. Given Kirksey’s testimony that she heard two banging noises coming from the 

back door, which Kirksey had locked, that Kirksey later noticed damage to the part of the door 

where the lock goes in, that defendant came in uninvited and unexpected, and that Kirksey did 

not want him there, sufficient evidence was presented to establish that defendant broke and 

entered the dwelling. 

 There was also sufficient evidence that defendant intended when entering the dwelling to 

commit an assault in the dwelling. Although there is no evidence that defendant actually 

assaulted anyone in the dwelling, there is evidence that he followed Kirksey outside, chased her 

around the Charger several times, held his hand by the side of his hip while inserting himself 

between the rear passenger side door and the body of the car where Kirksey had entered the 

vehicle, and then fired a 9 millimeter gun at the departing Charger occupied by Kirksey, Ray, 

and Moncrease. A jury could reasonably infer that defendant intended when entering the 

dwelling to commit an assault in the dwelling given his possession of the gun, his aggressive 

actions in following Kirksey outside and chasing her around the Charger, and his firing his gun 

at the departing Charger. Accordingly, defendant’s challenge to the sufficiency of the evidence 

lacks merit. 

 Defendant next argues that his sentences constitute cruel or unusual punishment, and 

makes other related arguments concerning his sentencing. To preserve an argument that a 

sentence within the appropriate guidelines range constitutes cruel and/or unusual punishment, a 

defendant must raise grounds for objection at sentencing or in a motion for resentencing. People 

v McLaughlin, 258 Mich App 635, 669-670; 672 NW2d 860 (2003). As discussed later, 

defendant’s sentence is within the appropriate guidelines range. Defendant did not raise grounds 

for objection at sentencing or move for resentencing. Therefore, the issue is unpreserved. This 

Court reviews an unpreserved constitutional issue for plain error. People v Carines, 460 Mich 

750, 764; 597 NW2d 130 (1999). To avoid forfeiture of an unpreserved error, a defendant must 

show that an error occurred, that it was clear or obvious, and that it affected the defendant’s 

substantial rights. Id. at 763. An error affects substantial rights if it affects the outcome of the 

lower court proceedings. Id. Once a defendant satisfies these requirements, an appellate court 

exercises its discretion in deciding whether to reverse by considering whether the plain, forfeited 

error resulted in the conviction of an innocent defendant or seriously affected the fairness, 

integrity, or public reputation of the proceedings. Id. at 763-764. 

 Defendant presents a disjointed argument focusing on multiple aspects of his sentencing. 

Defendant first contends that the guidelines minimum sentence range was incorrect due to 

inaccurate information that was relied on, and that this constitutes cruel and unusual punishment. 

Defendant does not identify any allegedly inaccurate information on which the trial court relied. 

Indeed, defense counsel acknowledged at sentencing that she had reviewed the presentence 

investigation report with defendant and that it was factually accurate except for an error 
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regarding attorney fees, which the trial court struck from the report. “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.” Kelly, 231 Mich App at 640-641. 

 Defendant next contends that he was improperly sentenced as a fourth habitual offender 

because the felony complaint and warrant sought sentence enhancement with a third habitual 

offender notice and he was bound over as a third habitual offender. Defendant asserts that the 

prosecution did not amend its habitual offender notice within 21 days of the arraignment, 

requiring vacation of the enhanced sentences and a remand for resentencing. This issue may be 

considered waived because it is not included in defendant’s statement of questions presented. 

Bennett, 290 Mich App at 484 n 4. In any event, defendant’s argument lacks merit. 

 MCL 769.13(1) requires the prosecution to file a written notice of its intent to seek 

habitual offender enhancement within 21 days after the arraignment on the information or, if 

arraignment is waived, within 21 days after the filing of the felony information. The notice of 

intent to seek an enhanced sentence must list the prior convictions that the prosecution will rely 

on for purposes of sentence enhancement. MCL 769.13(2). Likewise, MCR 6.112(F) provides: 

(F) Notice of Intent to Seek Enhanced Sentence.

A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list 

the prior convictions that may be relied upon for purposes of sentence 

enhancement. The notice must be filed within 21 days after the defendant’s 

arraignment on the information charging the underlying offense or, if arraignment 

is waived, within 21 days after the filing of the information charging the 

underlying offense. 

 In People v Ellis, 224 Mich App 752, 755; 569 NW2d 917 (1997), the prosecutor 

promptly filed a supplemental information charging the defendant with being a second habitual 

offender, but six weeks later filed an amended supplemental information alleging two additional 

prior convictions and charging the defendant as a fourth habitual offender. This Court held that a 

supplemental information may be amended outside the statutory period only to the extent that it 

does not relate to additional prior convictions not included in the timely filed supplemental 

information. Id. at 757. Because the prosecutor’s amendment alleged two additional prior 

convictions, thereby subjecting the defendant to a greater potential sentence, this Court held that 

the trial court erred in denying the defendant’s motion to quash the amended information. Id. 

 In People v Siterlet, 299 Mich App 180, 182; 829 NW2d 285 (2012) (Siterlet I), aff’d in 

part, vacated in part 495 Mich 919 (2013), the prosecution twice amended the felony information 

to change the defendant’s habitual offender level. The prosecution originally charged the 

defendant as a fourth habitual offender, later amended the felony information during 

unsuccessful plea negotiations to charge the defendant as a third habitual offender, and then after 

trial amended the felony information again to increase the habitual offender level to fourth 

offense status. Id. The defendant presented an unpreserved argument on appeal that the trial 

court erred in sentencing him as a fourth habitual offender, which this Court reviewed for plain 

error. Id. at 184-185. This Court held that the trial court had erred by sentencing the defendant 
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as a fourth habitual offender because the prosecution filed its second amended felony 

information to increase the defendant’s habitual offender level after the expiration of the 21-day 

period provided in MCL 769.13(1). Id. at 188. Nonetheless, this Court concluded that the error 

was not plain because no binding precedent established that an amended felony information that 

decreased the habitual offender level could not later be amended to increase the habitual offender 

level back to the level originally charged. Id. at 190. Further, this Court held that sentencing the 

defendant as a fourth habitual offender did not seriously affect the fairness, integrity, or public 

reputation of the proceedings because the factual basis for the defendant’s fourth habitual 

offender status was undisputed, the defendant knew that the prosecution would pursue a fourth 

habitual offender enhancement after he rejected the prosecution’s plea offer, and the defendant 

had admitted in pleadings that he was charged as a fourth habitual offender. Id. at 190-191. “In 

addition, all references to defendant made by the prosecutor after the jury announced its verdict, 

in the presentence investigation report, and by the trial court at sentencing were to defendant as a 

fourth-offense habitual offender, yet defendant remained silent regarding this habitual-offender 

designation.” Id. at 191. 

 In People v Siterlet, 495 Mich 919 (2013) (Siterlet II), citing People v Carter, 462 Mich 

206, 220; 612 NW2d 144 (2000), our Supreme Court affirmed the result reached by this Court in 

Siterlet I “because the defendant waived any error in the untimely amendment of the habitual 

offender enhancement notice by repeatedly admitting his status as a fourth habitual offender. 

This waiver extinguished any error.” Our Supreme Court vacated the portion of this Court’s 

“judgment addressing plain error, because it was unnecessary to decide the case.” Siterlet II, 495 

Mich at 919. 

 In the present case, defendant was arraigned on the warrant in the hospital on July 30, 

2012. During the hospital arraignment, the court advised defendant that he was accused of being 

a third habitual offender. Likewise, the original felony information filed on July 29, 2012, 

charged defendant as a third habitual offender, listing two prior felony convictions from 2001; 

the felony complaint and felony warrant filed on the same date also alleged third habitual 

offender status. On October 24, 2012, the prosecution filed an amended felony information 

charging defendant as a fourth habitual offender, adding an additional prior felony conviction 

from 2003. It appears the additional prior felony conviction from 2003 may have been omitted 

from the original felony information because defendant had used an alias at the time of his 2003 

conviction. At sentencing in this case, the prosecutor explained: 

 The defendant has been a scam artist. In ’03 when he represented himself 

by his father’s name as Coyer he got a break from the system because we didn’t 

realize he was a felon. 

 And but for scamming the system he would have been to prison in ’03 on 

FIP, FF. As the Court recalls from the DSU report and from are [sic] previous 

bonds he’s used four or five different names and four different dates of birth. 

An arraignment on the information was held on October 24, 2012, at which defendant waived a 

formal reading of the information and stood mute. 
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 We conclude that the felony information was amended to increase defendant’s habitual 

offender level within the 21-day period set forth in MCL 769.13(1) because the arraignment on 

the information was held on October 24, 2012, the same date that the amended felony 

information increasing defendant’s habitual offender level was filed. It appears defendant’s 

argument confuses the arraignment on the warrant with the arraignment on the information; it is 

the arraignment on the information that is relevant in determining whether the amended habitual 

offender notice is timely. MCL 769.13(1); MCR 6.112(F). The arraignment on the information 

is different from the arraignment on the complaint or warrant. See MCR 6.104; MCR 6.113. 

The arraignment on the information occurs after the preliminary examination. See MCR 

6.113(A) (noting that “the court with trial jurisdiction must arraign the defendant” and that “[t]he 

court may hold the arraignment before the preliminary examination transcript has been prepared 

and filed.”); People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013) (“After the 

preliminary examination, the circuit court was required to conduct an arraignment on the 

information at which the court would notify defendant of the charges against him and allow him 

to enter a plea.”). The preliminary examination in this case, which was adjourned by stipulation 

and then held over several dates, was not completed until October 12, 2012, the date on which 

defendant was bound over to circuit court. The circuit court then conducted the arraignment on 

the information on October 24, 2012. Accordingly, defendant’s challenge to the timeliness of 

the habitual offender amendment is premised on his misunderstanding of the type of arraignment 

used to determine the 21-day period in which such an amendment must be filed. 

 Even if the habitual offender notice was amended untimely, defendant waived any error. 

Defendant did not object below to the allegedly untimely amendment of the felony information 

to charge him as a fourth habitual offender. Moreover, at sentencing, defense counsel stated that 

she had reviewed the presentence investigation report with defendant and agreed that it was 

factually accurate except for an error regarding attorney fees, which the trial court stated would 

be struck from the report. Defense counsel asked that defendant be sentenced within the 

recommended guideline range of 225 to 750 months. The presentence investigation report 

indicated that defendant was charged as a fourth habitual offender, stated that he had three prior 

felony convictions, and listed the same three prior felony convictions that were set forth in the 

amended felony information as the basis for the fourth habitual offender charge. Further, the 225 

to 750 month guideline range that defense counsel asked that defendant be sentenced within was 

calculated on the basis of defendant’s status as a fourth habitual offender. 

 Accordingly, because (1) defendant admitted at sentencing that the information in the 

presentence investigation report was accurate; (2) the presentence investigation report reflected 

that defendant was charged as a fourth habitual offender, stated that he had three prior felony 

convictions, and listed the same three prior felony convictions that were set forth in the amended 

felony information as the basis for charging defendant as a fourth habitual offender; and (3) 

defense counsel asked for a sentence within the guideline range calculated on the basis of 

defendant’s fourth habitual offender status, defendant waived any error in the untimely 

amendment of the habitual offender enhancement notice because he admitted his status as a 

fourth habitual offender. Defendant’s waiver thereby extinguished any error. See Siterlet II, 495 

Mich at 919; Carter, 462 Mich at 220. 

 Next, defendant asserts that the offense variables for his first-degree home invasion 

conviction should have been scored independently from the offense variables for his assault with 
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intent to commit murder convictions. Defendant says that the offense variables for first-degree 

home invasion were incorrectly scored in the same manner as the offense variables for assault 

with intent to commit murder. He also states that he is challenging the scoring of offense 

variables 1, 2, 8, 9, and 19 for the first-degree home invasion conviction. This issue is not 

included in defendant’s statement of questions presented. Moreover, defendant fails to 

adequately present a coherent rationale for his asserted positions. “An appellant may not merely 

announce his position and leave it to this Court to discover and rationalize the basis for his 

claims. . . .” Kelly, 231 Mich App at 640-641. Hence, this argument may be deemed waived. 

Bennett, 290 Mich App at 484. Further, defendant failed to preserve this issue by raising it at 

sentencing, in a proper motion for resentencing, or in a proper motion to remand. MCL 

769.34(10); People v Jackson, 487 Mich 783, 795-796; 790 NW2d 340 (2010). Any review is 

therefore limited to plain error affecting substantial rights. Carines, 460 Mich at 763. 

 Defendant’s contention lacks merit because it is premised on an erroneous assumption 

that the trial court was required to score the offense variables for first-degree home invasion. 

When a defendant is sentenced to multiple concurrent sentences, a trial court is required to use at 

sentencing a presentence investigation report covering the defendant’s conviction for the crime 

having the highest crime class. People v Mack, 265 Mich App 122, 127-128; 695 NW2d 342 

(2005). The guidelines do not need to be scored for the lower crime class offenses because 

presentence investigation reports and guideline calculations are required only for the highest 

crime class felony conviction. People v Lopez, 305 Mich App 686, 690-691; 854 NW2d 205 

(2014). Assault with intent to commit murder is a Class A felony, MCL 777.16d, whereas firstdegree home invasion is a Class B felony, MCL 777.16f. Therefore, the trial court properly 

scored the guidelines for assault with intent to commit murder because it is the highest crime 

class felony conviction and defendant received concurrent sentences for the convictions at issue. 

Id. Defendant’s argument that the trial court was required to independently score the guidelines 

for first-degree home invasion lacks merit. 

 We note that this Court in Mack and Lopez questioned whether a sentence for a lower 

crime class felony conviction that is not scored under the guidelines could remain proportional if 

it exceeds the sentence imposed on the highest crime class felony conviction. See Lopez, 305 

Mich App at 692; Mack, 265 Mich App at 129. Defendant’s minimum sentence of 26 years and 

8 months for first-degree home invasion exceeded his minimum sentences of 23 years for each of 

his assault with intent to commit murder convictions. However, defendant’s sentences for both 

of these offenses are within the guidelines range of 225 to 750 months. Further, defendant does 

not contend that the first-degree home invasion sentence is disproportional on the ground 

suggested in Lopez and Mack. Instead, he argues that the trial court was required to 

independently score the guidelines for this offense and that there was no evidentiary support for 

the trial court’s scoring of the guidelines for first-degree home invasion. Because, as discussed, 

the trial court was required to score the guidelines only for the assault with intent to commit 

murder convictions, and because there was no scoring by the trial court of the guidelines for 
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first-degree home invasion with respect to which defendant could challenge the evidentiary 

support, defendant’s argument lacks merit.2

 Next, defendant contends that his minimum sentence for first-degree home invasion 

constitutes a departure based on what defendant claims is the correct calculation of the guidelines 

range for that offense. This argument is waived because it is not included in the statement of 

questions presented. Bennett, 290 Mich App at 484. As discussed, the trial court was not 

required to, and in fact did not, score the guidelines for first-degree home invasion. Defendant’s 

argument that the minimum sentence for first-degree home invasion constitutes a departure from 

the guidelines range for that offense is therefore based on an erroneous premise and lacks merit. 

 Finally, defendant contends that because of his age of 30 years, what he characterizes as 

his serious health problems3

, and his view of the quality of the evidence presented at trial, the 

sentences imposed in this case comprise cruel or unusual punishment. “However, a sentence 

within the guidelines range is presumptively proportionate, and a sentence that is proportionate is 

not cruel or unusual punishment.” People v Powell, 278 Mich App 318, 323; 750 NW2d 607 

(2008) (citations omitted). Defendant’s minimum sentences are within the guidelines range of 

225 to 750 months. Indeed, defense counsel at sentencing requested that defendant be sentenced 

within the guidelines range of 225 to 750 months. As discussed, defendant’s challenge to the 

sufficiency of the evidence at trial, on which he again relies in his contention that the sentences 

constitute cruel or unusual punishment, is devoid of merit. Defendant fails to offer a convincing 

reason to conclude that his age or his purported health problems should overcome the 

presumption that his sentences within the guidelines range are proportionate. 

II. DEFENDANT’S SUPPLEMENTAL BRIEF ON APPEAL 

 Defendant argues that he and his attorney were excluded from a competency hearing in 

violation of defendant’s constitutional rights. We disagree. A defendant must raise a 

constitutional challenge in the trial court to preserve the issue for appellate review. People v 

Hogan, 225 Mich App 431, 438; 571 NW2d 737 (1997). Defendant did not raise any 

constitutional challenge below with respect to his purported exclusion from a competency 

 

2

 We note that the prosecution scored the guidelines for first-degree home invasion in its 

sentencing memorandum. Also, the minimum sentence of 26 years and eight months imposed by 

the trial court for first-degree home invasion is at the top end of the guidelines range for that 

offense as calculated by the prosecutor. Nonetheless, the trial court did not state that it was 

calculating the guidelines for first-degree home invasion, and the court’s sentencing information 

report calculated the guideline range only for assault with intent to commit murder. 

3

 Defendant was shot while committing the present offenses, was arraigned at a hospital, sat in a 

wheelchair at trial, and remained seated during his allocution because he had “reinjured [his] 

leg.” In the presentence investigation report, defendant stated that he was taking medications as 

a result of being shot in the stomach in this case, and he asserted that he suffered nerve damage 

in his left leg and was using a walker. The record is not further developed regarding the exact 

nature or extent of defendant’s purported ongoing health problems. 
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hearing. Therefore, the issue is not preserved and our review is for plain error affecting 

substantial rights. Carines, 460 Mich at 763-764. 

 A criminal defendant has a constitutional right to be personally present at all critical 

stages of a trial. Rushen v Spain, 464 US 114, 117; 104 S Ct 453; 78 L Ed 2d 267 (1983). 

Further, the Sixth Amendment of the United States Constitution guarantees a criminal defendant 

facing incarceration the right to counsel at all critical stages of the criminal proceeding. United 

States v Cronic, 466 US 648, 659; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Williams, 

470 Mich 634, 641; 683 NW2d 597 (2004). The United States Supreme “Court has uniformly 

found constitutional error without any showing of prejudice when counsel was either totally 

absent, or prevented from assisting the accused during a critical stage of the proceeding.” 

Cronic, 466 US at 659 n 25. Every lower federal court to consider the issue has found that a 

competency hearing is a critical stage of the criminal process. See United States v Ross, 703 F3d 

856, 873-874 (CA 6, 2012).4

 

 Defendant contends that he and his attorney were excluded from a competency hearing 

that was held in the 36th District Court on August 8, 2012, before defendant was bound over to 

circuit court. The record does not support this contention. It is true that the circuit court register 

of actions has an entry for August 8, 2012, indicating that a motion hearing and a competency 

hearing were held, and there is a reference to an unspecified adjournment on that date.5 There 

are no other motions, orders, or other documents in the lower court file to suggest that a 

competency hearing was held or that the court made any determination of competency at such a 

hearing. The district court register of actions does not indicate that a competency hearing was 

held on August 8, 2012; the entry for that date instead refers to the continuation of defendant’s 

bond and the adjournment of the preliminary examination. 

 Moreover, in connection with defendant’s effort to obtain a transcript of the purported 

August 8, 2012 competency hearing, a court reporter submitted to this Court a certificate dated 

October 30, 2014, stating that there was no record to be transcribed for August 8, 2012. On 

November 26, 2014, this Court entered an order addressing the fact that there was no record of 

proceedings held on August 8, 2012; this Court’s order stated, in relevant part: 

 By order entered on September 11, 2014, the Court granted defendantappellant’s request for an extension of time to file a supplemental brief and 

directed the trial court to secure the filing of transcripts of a July 30, 2012, 

 

4

 “Lower federal court decisions are not binding on this Court, but may be considered on the 

basis of their persuasive analysis.” People v Fomby, 300 Mich App 46, 50 n 1; 831 NW2d 887 

(2013). 

5

 It appears the reference in the register of actions to an adjournment concerns the preliminary 

examination; the district court entered a stipulated order on August 8, 2012, adjourning the 

preliminary examination from August 10, 2012, to August 23, 2012, because defense counsel 

was seeking additional discovery and because defendant was still recovering from his gunshot 

wound and may otherwise have been unable to participate in his defense. 
-12- 

arraignment and an August 8, 2012, competency hearing and mail the transcripts 

to defendant. The Court has subsequently received a court reporter’s certificate 

stating that there is no record of proceedings held on August 8, 2012, and the 

Court has recently received from the trial court transcripts of two arraignment 

proceedings held on July 30, 2012, and a proceeding held on August 23, 2012. 

Defendant states in the instant motion to extend time that he has not yet received 

the transcripts of the July 30, 2012, arraignment and the August 8, 2012, 

competency hearing. However, the court reporter now indicates there is no record 

of proceedings held on August 8, 2012. . . . [People v Smith, unpublished order of 

the Court of Appeals, entered November 26, 2014 (Docket No. 316224).] 

 Accordingly, despite the vague entry in the circuit court’s register of actions, the record 

overall does not establish that a competency hearing was held on August 8, 2012. Even if such a 

hearing was held, there is no indication that defendant and his attorney were excluded from any 

such hearing. Further, as discussed, there is no other indication in the record of any competency 

hearing or determination. Therefore, defendant has not established that he was denied his rights 

to be present or to the assistance of counsel at a critical stage of the proceedings. 

 It appears defendant also suggests that his due process rights were violated because the 

trial court failed to have him evaluated for competency. Defendant does not present a coherent 

argument on this point. “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.” Kelly, 231 Mich App at 640-641. Further, this 

issue may be considered waived because it is not included in defendant’s statement of questions 

presented. Bennett, 290 Mich App at 484. In any event, defendant’s contention lacks merit. “A 

claim of incompetency to stand trial, and the right to a competency determination, implicates 

constitutional due process protections. Issues of constitutional law are reviewed de novo.” In re 

Carey, 241 Mich App 222, 225-226; 615 NW2d 742 (2000) (citation omitted). “The conviction 

of an individual when legally incompetent violates due process of law.” Id. at 227. “[A] 

defendant is presumed competent to stand trial unless his mental condition prevents him from 

understanding the nature and object of the proceedings against him or the court determines he is 

unable to assist in his defense.” People v Mette, 243 Mich App 318, 331; 621 NW2d 713 (2000). 

In the absence of a defense request, the trial court generally does not have a duty to order a 

competency hearing sua sponte. See People v Inman, 54 Mich App 5, 12; 220 NW2d 165 

(1974). But a court should raise the issue of incompetence when facts are brought to the court’s 

attention raising a “bona fide doubt” regarding the defendant’s competence. People v Harris, 

185 Mich App 100, 102; 460 NW2d 239 (1990). In this case, defendant did not request a 

competency hearing or indicate an inability to understand the proceedings or assist his attorneys. 

There is no indication that any facts were brought to the trial court’s attention raising a bona fide 

doubt regarding defendant’s competence. Therefore, the failure to hold a competency hearing 

did not deprive defendant of due process. 

 Defendant next asserts that he was denied a fair trial on the basis of purported 

prosecutorial misconduct. We disagree. “In order to preserve an issue of prosecutorial 

misconduct, a defendant must contemporaneously object and request a curative instruction.” 

Bennett, 290 Mich App at 475. Here, defendant failed to contemporaneously object or request a 
-13- 

curative instruction with respect to the alleged instances of prosecutorial misconduct. 

Accordingly, this issue is unpreserved. 

 Issues of prosecutorial misconduct are reviewed de novo to determine 

whether the defendant was denied a fair and impartial trial. Further, allegations of 

prosecutorial misconduct are considered on a case-by-case basis, and the 

reviewing court must consider the prosecutor’s remarks in context. 

 Unpreserved issues are reviewed for plain error affecting substantial 

rights. Reversal is warranted only when plain error resulted in the conviction of 

an actually innocent defendant or seriously affected the fairness, integrity, or 

public reputation of judicial proceedings. Further, this Court cannot find error 

requiring reversal where a curative instruction could have alleviated any 

prejudicial effect. [Id. at 475-476 (internal quotation marks, brackets, and 

citations omitted).] 

 A prosecutor may not vouch for the credibility of witnesses to suggest some special 

knowledge that the witnesses are testifying truthfully. People v Bahoda, 448 Mich 261, 276; 531 

NW2d 659 (1995). A prosecutor may, however, argue from the facts and testimony that the 

witnesses are credible or worthy of belief. People v Dobek, 274 Mich App 58, 66; 732 NW2d 

546 (2007). In general, prosecutors are accorded wide latitude in making their arguments, “and 

are free to argue the evidence and all reasonable inferences from the evidence as they relate to 

their theory of the case.” People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). 

 A prosecutor need not confine arguments to the blandest possible terms. Dobek, 274 

Mich App at 66. It is improper, however, for a prosecutor to express a personal belief in the 

defendant’s guilt. Seals, 285 Mich App at 24. “A prosecutor’s remarks must be considered in 

light of defense arguments.” People v Ackerman, 257 Mich App 434, 453-454; 669 NW2d 818 

(2003) (internal quotation marks and citation omitted). Otherwise improper remarks may not 

rise to the level of error requiring reversal if the remarks were responsive to defense counsel’s 

argument. People v Watson, 245 Mich App 572, 593; 629 NW2d 411 (2001). 

 The prosecutor may not imply that the defendant is required to prove something or to 

provide a reasonable explanation for damaging evidence because such an argument tends to shift 

the burden of proof. People v Fyda, 288 Mich App 446, 463-464; 793 NW2d 712 (2010) 

(citation omitted). “However, a prosecutor’s argument that inculpatory evidence is undisputed 

does not constitute improper comment. A prosecutor may also argue that the evidence was 

uncontradicted even if the defendant is the only person who could have contradicted the 

evidence.” Id. at 464 (citations omitted). 

 The prosecutor may not personally attack defense counsel. McLaughlin, 258 Mich App 

at 646. Nor may a prosecutor suggest that defense counsel is intentionally attempting to mislead 

the jury. People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008). The prosecutor also 

may not appeal to the jury to sympathize with the victim or urge the jury to convict as part of its 

civic duty or on the basis of prejudices. Id. at 237. A prosecutor may not knowingly use 

perjured testimony to obtain a conviction. People v Aceval, 282 Mich App 379, 389; 764 NW2d 

285 (2009). 
-14- 

 Defendant contends that the prosecutor improperly referred to defense counsel as a “word 

smith” and stated that defense counsel was misleading the jury with “diversionary tactics.” 

According to defendant, the prosecutor accused defense counsel of wrongfully attacking 

prosecution witnesses by questioning their truthfulness and by pointing out inconsistencies 

between witnesses’ testimonies at trial and their prior testimonies. Defendant asserts that the 

prosecutor vouched for his witnesses’ credibility and made excuses for what defendant calls their 

“perjured” testimony by explaining why their testimonies changed from earlier statements or 

testimonies. We disagree with defendant’s argument. 

 As discussed, a prosecutor’s remarks must be reviewed in context, Bennett, 290 Mich 

App at 475, and in light of defense arguments, Ackerman, 257 Mich App at 453-454. With 

respect to the prosecutor’s purported reference during closing argument to defense counsel as a 

“word smith,” the full context of the prosecutor’s remarks is as follows: 

 I’m going to begin by some general comments about a very skilled lawyer. 

And I’m referring to Mr. Upshaw [defense counsel]. Understand that lawyers are 

word smiths. 

 Our tool box does not have the a [sic] wrench or a saw or a hammer in it 

our tool box is our vocabulary [sic]. Our tool box is an ability to talk to 

individuals and express ourselves. 

 You heard testimony from two ladies that Mr. Smith the defendant in this 

case used those words b---- let my wife out of the car before I kill you and this 

wh--- a-- n-----. 

 Mr. Upshaw dealt with that describing it as a derogatory remark. That is a 

statement of intent. That is a statement of intent to kill. 

 Nothing personal towards him this is how things progressed [sic]. This is 

what we’re talking about. 

It appears this comment by the prosecutor during closing argument was responsive to the 

following portion of defense counsel’s opening statement: 

 You have to as a matter of fact intend to kill somebody. So the car drives 

down the street stops as Mr. Trzcinski [the prosecutor] stated they said a few 

minutes the car my client’s car pulls up looks over to the blue charger and says 

hey I want to talk to my wife or whatever derogatory saying he was saying about 

trying to talk to Ms. Kirksey [sic]. 

As the above quotes make clear, defense counsel asserted in his opening statement that defendant 

made a “derogatory saying” when demanding that Kirksey enter his vehicle. In closing 

argument, the prosecutor expressed disagreement with defense counsel’s characterization of 

defendant’s comment as a mere derogatory remark and argued that it instead comprised a 

statement of defendant’s intent to kill. The prosecutor did not personally attack defense counsel. 

The prosecutor’s remarks were responsive to defense counsel’s opening statement and 
-15- 

constituted an appropriate argument concerning reasonable inferences from the evidence as they 

related to the prosecution’s theory of the case. Seals, 285 Mich App at 22. 

 Defendant asserts that the prosecutor improperly suggested that defense counsel was 

misleading the jury with diversionary tactics. Defendant fails to provide a citation to the record 

to support this assertion. “Defendant may not leave it to this Court to search for a factual basis to 

sustain or reject his position.” People v Norman, 184 Mich App 255, 260; 457 NW2d 136 

(1990). See also MCR 7.212(C)(7) (“Facts stated must be supported by specific page references 

to the transcript, the pleadings, or other document or paper filed with the trial court.”). We do 

not find in the transcript any such statement by the prosecutor in closing argument. 

 According to defendant, the prosecutor stated that defense counsel wrongfully attacked 

several prosecution witnesses by questioning their truthfulness and pointing out inconsistencies 

with prior testimony. Defendant also contends that the prosecutor vouched for his witnesses’ 

credibility and made excuses for what defendant characterizes as their “perjured testimony.” 

Again, defendant does not cite to the portion of the record in which any such statements 

occurred. Our review indicates that the prosecutor made no such statements and did not engage 

in improper vouching. Rather, the prosecutor appropriately argued from the evidence that his 

witnesses were worthy of belief. Dobek, 274 Mich App at 66. The prosecutor did not 

improperly vouch for his witnesses by suggesting he had some special knowledge concerning 

their truthfulness. Bahoda, 448 Mich at 276. Defendant fails to support his characterization of 

the prosecution witnesses’ testimony as perjured. Defendant does not identify the specific 

testimony that supposedly constitutes perjury, nor does defendant elaborate on exactly how he 

thinks the prosecutor made excuses for the alleged perjury. The fact that certain prosecution 

witnesses may have testified inconsistently in some respects does not by itself establish that 

those witnesses committed perjury, see People v Kozyra, 219 Mich App 422, 429; 556 NW2d 

512 (1996), let alone that the prosecutor knew that they committed perjury. “This Court will not 

interfere with the trier of fact’s role of determining the weight of the evidence or the credibility 

of witnesses.” Kanaan, 278 Mich App at 619. 

 Defendant next challenges several comments that the prosecutor made during rebuttal 

closing argument. Defendant notes that the prosecutor stated that defense counsel “said nothing 

about unlawful imprisonment. And the unlawful imprisonment has been proven.” This 

comment did not tend to shift the burden of proof. The prosecutor correctly observed that 

defense counsel did not discuss unlawful imprisonment; the prosecutor then immediately stated 

that “the unlawful imprisonment has been proven,” reflecting that the prosecution had the burden 

of proof to establish unlawful imprisonment even though defense counsel did not address it. 

 Defendant complains about comments made by the prosecutor concerning the reason why 

defendant went upstairs in Kirksey’s home following his initial entry into the home that morning. 

The prosecutor’s remarks in context are: 

 The um, claim that he was went [sic] upstairs for the kids Ms. Kirksey said 

they routinely slept in the first floor bedroom. 
-16- 

 That claim has no evidentiary support. Mr. UpShaw’s [sic] claim that he 

his client went upstairs because of the children is contrary to with [sic] what Ms. 

Kirksey testified to. 

 The trust [sic] of what counsel is suggesting is to do something that I 

suggest you shouldn’t do. Mr. Smith selected all of the witnesses that testified in 

this case. 

These comments did not tend to shift the burden of proof. The prosecutor argued from the 

evidence, including Kirksey’s testimony, in favor of the prosecution theory that defendant went 

upstairs for reasons that were unrelated to his children. Proper commentary concerning the 

weaknesses of a defense theory does not shift the burden of proof or comprise prosecutorial 

misconduct. See Fyda, 288 Mich App at 464-465. The comment about defendant selecting all 

of the witnesses was based on the prosecutor’s explanation that the witnesses were chosen not by 

the prosecutor but were determined by the events that defendant set in motion during the 

criminal transaction. Defendant does not explain why he believes such a comment is improper. 

 Next, defendant complains about the prosecutor’s statement that defense counsel had 

elevated the prosecutor’s burden of proof. The prosecutor’s remarks in context were as follows: 

 Now let’s talk about creativeness. Applying Mr. UpShaw’s [sic] analysis 

because the two officers in the kitchen don’t see muzzle flashes therefore it can’t 

be an AWIM. 

 Does [sic] the elements of assault with intent to murder require the victim 

to see the shoots [sic]? Heaven forbid open season on everybody blind. 

 Mr. UpShaw [sic] has elevated the version of the burden that the People 

have. The People can’t prove this so we’ll say that they have to. 

 And God help everybody that’s blind and shot by themselves. Your 

defendant and your charge was [sic] waiting for who every [sic] came to that 

doorway. 

Defense counsel had argued in closing that Dew and Singleton did not see muzzle flashes when 

defendant fired his gun; the prosecutor argued in response that the prosecutor was not required to 

prove that the victim of an assault saw the shots being fired. In light of the defense arguments, 

the prosecutor’s argument was not improper. 

 Defendant asserts that the prosecutor shifted the burden of proof on unlawful 

imprisonment by stating, “Uncontested count of unlawful imprisonment, home invasion, because 

he wasn’t there at 4:30 in the morning for peaceful purposes.” This comment is properly read in 

context as related to the earlier statement in which the prosecutor asserted that defense counsel 

had not addressed unlawful imprisonment in closing and that the charge of unlawful 

imprisonment had been proven. The prosecutor’s comments overall reflect that the prosecutor 

had the burden of proof. Again, “a prosecutor’s argument that inculpatory evidence is 

undisputed does not constitute improper comment. A prosecutor may also argue that the 
-17- 

evidence was uncontradicted even if the defendant is the only person who could have 

contradicted the evidence.” Fyda, 288 Mich App at 464 (citations omitted). 

 Defendant challenges the prosecutor’s statement in rebuttal closing argument that “I did 

predict one thing before the lunch we divide and conquer that’s what was the attempt [sic]. And 

this proverb still holds true layer upon layer of multiple sources.” It appears the prosecutor was 

referring to comments made near the end of his initial closing argument in which the prosecutor 

was suggesting what the defense might argue in closing: 

 The felon in possession charge the felony firearm charge all of those 

weapons offenses I expect that you will hear divided testimony of the first lady 

witness Ms. Kirksey you can’t believe her because of X, Y and Z [sic]. 

 You can’t believe her because of XY and Z. Each witness is a layer. Each 

witness Ms. Ray, Mr. Wright, Mr. Moncrease and combined the African proverb 

something as easy to remove a spider web when layer upon layer upon layer 

gathers strength to the extent it can be [sic] trap one of the most ferocious animals 

perhaps one of the most ferocious animals that God put on the planet [sic]. 

Defendant fails to explain why he thinks the prosecutor’s remarks in rebuttal were improper. It 

appears the rebuttal comments were in response to the defense effort to highlight the inconsistent 

aspects of the prosecution witnesses’ testimonies. The prosecutor characterized this defense 

strategy as “divide and conquer” and apparently analogized the prosecution witnesses’ 

testimonies to layers in a spider web discussed in a proverb. A prosecutor need not confine 

arguments to the blandest possible terms. Dobek, 274 Mich App at 66. The argument was not 

improper. 

 Defendant asserts that the prosecutor appealed to the jury to sympathize with the alleged 

victims and to the jurors’ sense of civic duty by vouching for their testimony and arguing that the 

jury should disregard earlier statements or testimony. Defendant also contends that the 

prosecutor vouched for Moncrease’s testimony even though he initially failed to tell police 

officers that he possessed and discharged a firearm through his car window; according to 

defendant, the prosecutor made excuses for why Moncrease was not charged with any crimes. 

Defendant fails to support these contentions with specific citations to the record. “Defendant 

may not leave it to this Court to search for a factual basis to sustain or reject his position.” 

Norman, 184 Mich App at 260. As discussed, our review indicates that the prosecutor did not 

impermissibly vouch for any prosecution witnesses. Nor do we find any appeals to sympathy or 

civic duty. The prosecutor properly argued from the facts and testimony that his witnesses were 

credible or worthy of belief. Dobek, 274 Mich App at 66. 

 Finally, even if any of the prosecutor’s comments were improper, defendant has failed to 

establish that a timely curative instruction could not have alleviated any prejudice. Bennett, 290 

Mich App at 476. “Curative instructions are sufficient to cure the prejudicial effect of most 

inappropriate prosecutorial statements.” Seals, 285 Mich App at 22. And although defendant 

did not request a curative instruction, the trial court instructed the jury that the lawyers’ 

statements and arguments were not evidence and that the jury should decide the case based only 

on the evidence admitted at trial. In addition, the trial court instructed the jury that the 
-18- 

prosecution had the burden to prove each element of the crimes beyond a reasonable doubt and 

that defendant was not required to prove his innocence or to do anything. The trial court also 

instructed the jury that it must not let sympathy or prejudice influence its decision. These 

instructions dispelled any potential prejudice with respect to the alleged prosecutorial 

misconduct. See People v Parker, 288 Mich App 500, 512; 795 NW2d 596 (2010); Fyda, 288 

Mich App at 465; People v Ullah, 216 Mich App 669, 682-683; 550 NW2d 568 (1996). “It is 

well established that jurors are presumed to follow their instructions.” People v Graves, 458 

Mich 476, 486; 581 NW2d 229 (1998); Fyda, 488 Mich App at 465. Thus, defendant has failed 

to establish that a plain error affected his substantial rights in connection with his unpreserved 

prosecutorial misconduct claim. 

 Defendant next argues that he was denied the effective assistance of counsel. We 

disagree. To preserve a claim of ineffective assistance of counsel, a defendant must move for a 

new trial or an evidentiary hearing. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 

(2008). Defendant did not file either such motion. Therefore, the issue is unpreserved. Because 

defendant did not preserve this issue, this Court’s review is limited to mistakes apparent on the 

existing record. Id. “A claim of ineffective assistance of counsel is a mixed question of law and 

fact.” Id. This Court reviews any findings of fact for clear error, but the ultimate constitutional 

issue arising from an ineffective assistance claim is reviewed de novo. Id. 

 “To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show 

that (1) counsel’s performance was below an objective standard of reasonableness and (2) a 

reasonable probability [exists] that the outcome of the proceeding would have been different but 

for trial counsel’s errors.” Ackerman, 257 Mich App at 455. “Defendant must overcome a 

strong presumption that counsel’s performance constituted sound trial strategy.” Petri, 279 Mich 

at 411. This Court does not substitute its judgment for that of counsel regarding matters of trial 

strategy, nor does it assess counsel’s performance with the benefit of hindsight. Id. The fact that 

a defense strategy ultimately fails does not establish ineffective assistance of counsel. People v 

Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291 (2001). 

 “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). “In general, 

the failure to call a witness can constitute ineffective assistance of counsel only when it deprives 

the defendant of a substantial defense.” People v Payne, 285 Mich App 181, 190; 774 NW2d 

714 (2009) (quotation marks omitted). A defense is substantial if it might have made a 

difference in the outcome. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). 

 Defense counsel has a duty to undertake reasonable investigations or to make a 

reasonable decision that renders particular investigations unnecessary. People v Trakhtenberg, 

493 Mich 38, 52; 826 NW2d 136 (2012). Any choice to limit an investigation “is reasonable 

precisely to the extent that reasonable professional judgments support the limitations on 

investigation.” Id. (quotation marks omitted). The failure to conduct an adequate investigation 

comprises ineffective assistance of counsel if it undermines confidence in the outcome of the 

trial. Russell, 297 Mich App at 716. A defendant claiming ineffective assistance has the burden 

of establishing the factual predicate for the claim. People v Carbin, 463 Mich 590, 600; 623 

NW2d 884 (2001). 
-19- 

 Defendant first contends that he and his stepfather asked defense counsel to retrieve and 

review video surveillance footage allegedly showing that on the date of the incident, defendant 

and Kirksey stopped at a gas station and defendant left Kirksey alone in the vehicle for a 

substantial amount of time. Defendant claims that defense counsel failed to comply with this 

request. Defendant appends to his supplemental brief on appeal an affidavit of his stepfather 

repeating these allegations. This affidavit is not part of the lower court record, which is devoid 

of any support for defendant’s allegations. There is no evidence in the record that defendant and 

Kirksey stopped at a gas station on the date of the incident, that defendant left Kirksey alone in 

the vehicle for a substantial period of time, that video footage of such an event exists, that 

defendant or his stepfather asked defense counsel to retrieve and review the video footage, or 

that defense counsel failed to investigate the matter or seek to obtain the video. Even if the 

affidavit of defendant’s stepfather is accepted, it does not establish how defendant or his 

stepfather could know whether defense counsel failed to seek to obtain any purported video 

footage. Defendant has failed to support the contention that defense counsel performed an 

inadequate investigation. See Odom, 276 Mich App at 417 (rejecting an ineffective assistance 

claim where defense counsel’s alleged failure to properly investigate a case was not apparent 

from the record). 

 Defendant next contends that defense counsel before and during trial failed to give him 

discovery materials obtained from the prosecution. Defendant claims that he requested the 

discovery materials from defense counsel from the time that counsel was retained. Defendant 

states that he has received some materials from defense counsel but not the items he requested, 

including unspecified laboratory reports, his medical records, ballistic reports, and preliminary 

examination transcripts. Defendant asserts that it is possible that items in the discovery package 

could have been favorable to the defense and that without seeing the items he could not direct 

defense counsel or an investigator concerning what other evidence might exist. Given the 

allegedly limited materials possessed by defense counsel, defendant questions whether defense 

counsel ever requested discovery. Defendant appends to his supplemental brief on appeal his 

written correspondence with defense counsel after this appeal was filed and his affidavit that the 

facts alleged in his supplemental brief are true. Defendant’s contentions have no basis in the 

record. There is no support in the record for defendant’s claim that he asked defense counsel for 

his discovery materials6

, that defense counsel failed to provide defendant any discovery materials 

that he requested, or that defense counsel failed to request discovery7. Therefore, defendant has 

not established the factual predicate for this portion of his ineffective assistance claim. Carbin, 

463 Mich at 600. Defendant’s mere speculation that discovery materials may have led to 

 

6

 Even if this Court considers the correspondence appended to defendant’s supplemental brief, it 

is dated after defendant filed his appeal and does not establish that defendant requested the 

materials from defense counsel before or during trial or that defense counsel failed to provide 

discovery materials. 

7

 The record contains an August 23, 2012 order granting discovery of various items to defense 

counsel, although this order did not pertain to all of the materials that defendant addresses on 

appeal. 
-20- 

evidence favorable to the defense fails to establish a reasonable probability of a different 

outcome. 

 Defendant next contends that evidence is available concerning the credibility of Dew and 

Singleton. In particular, defendant states that there is useful information in a federal civil lawsuit 

in which Dew and Singleton were the defendants who shot and killed the plaintiff in that case. 

Defendant states that he is investigating this and other cases purportedly involving Dew and 

Singleton tampering with, destroying, or planting evidence. Defendant does not explain 

precisely how he thinks defense counsel should have used this information in defendant’s case. 

Defendant offers no theory of relevance concerning how this information could have been used 

at trial, nor does defendant articulate how this information would make a different outcome 

reasonably likely in light of the evidence of guilt discussed earlier. “An appellant may not 

merely announce his position and leave it to this Court to discover and rationalize the basis for 

his claims. . . .” Kelly, 231 Mich App at 640-641. Further, the unpublished opinion in the 

federal lawsuit against Dew and Singleton is not part of the record, and the record does not 

support defendant’s allegations of purported misconduct on the part of Dew and Singleton. 

Defendant has not established the factual predicate for his claim. Carbin, 463 Mich at 600. 

 Defendant next argues that defense counsel was ineffective for failing to object to the 

prosecutor’s misconduct during closing argument as summarized earlier and failing to seek to 

cure the prejudice arising from the prosecutor’s impermissible comments. As discussed, the 

prosecutor did not commit misconduct. Defense counsel was not ineffective for failing to 

advance meritless arguments or raise futile objections. Ericksen, 288 Mich App at 201. 

 Next, defendant presents an incomprehensible argument that the prosecutor and the trial 

court erroneously suggested to the jury that it “consider either the first time or the second time to 

find [defendant], guilty of home invasion and the charged [assault with intent to commit murder] 

against Mr. Moncrease, Ms. Kirksey, and Ms. Ray.” Defendant asserts that an instructional error 

occurred and that defense counsel was ineffective for failing to object or request a curative 

instruction. We do not know what defendant means when he says that the prosecutor and the 

trial court stated that the jury may “consider either the first time or the second time” to find 

defendant guilty. Defendant fails to cite to the portion of the transcript in which any such 

comments were made. “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.” Kelly, 231 Mich App at 640-641. “Defendant 

may not leave it to this Court to search for a factual basis to sustain or reject his position.” 

Norman, 184 Mich App at 260. We are unable to analyze this argument further given that it is 

unclear what defendant is challenging. 

 Defendant again requests an evidentiary hearing on his claim of ineffective assistance of 

counsel. This Court already denied defendant’s motion to remand for an evidentiary hearing on 

ineffective assistance of counsel because defendant did not properly demonstrate that further 

factual development of the record or an initial decision of the trial court was necessary. See 

People v Smith, unpublished order of the Court of Appeals, entered September 4, 2014 (Docket 

No. 316224). Defendant fails to address this order or to elaborate on why a remand should be 

granted now despite this Court’s previous order. Defendant may not merely announce his 
-21- 

position and leave it to this Court to discover and rationalize the basis for his renewed request. 

Kelly, 231 Mich App at 640-641. 

 Defendant next argues that a delay in his arraignment following his warrantless arrest 

deprived him of due process. We disagree. A defendant must raise a constitutional challenge in 

the trial court to preserve the issue for appellate review. Hogan, 225 Mich App at 438. 

Defendant did not raise this issue below. Therefore, the issue is unpreserved and our review is 

for plain error affecting substantial rights. Carines, 460 Mich at 763-764. 

 First, this issue is waived because it is not included in defendant’s statement of questions 

presented. Bennett, 290 Mich App at 484 n 4. Second, defendant fails to present a coherent 

argument, instead making a series of random assertions that are difficult to follow. “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.” Kelly, 231 Mich App at 640-641. We will attempt to address 

defendant’s argument to the extent possible. 

 Defendant contends that he never received a probable cause hearing and was arraigned in 

the hospital after the 48-hour time limit had expired. In People v Whitehead, 238 Mich App 1, 2; 

604 NW2d 737 (1999) (quotation marks and brackets omitted), this Court explained: 

 In Riverside Co v McLaughlin, 500 US 44, 56; 111 S Ct 1661; 114 L Ed 

2d 49 (1991), the United States Supreme Court held that, following an arrest 

without a warrant, a jurisdiction that provides judicial determinations of probable 

cause within 48 hours of arrest will, as a general matter, be found to comply with 

the promptness requirement of the federal constitution’s Fourth Amendment. 

Police authorities who hold an arrestee for more than forty-eight hours without an 

arraignment can constitutionally do so only if they can demonstrate the existence 

of a bona fide emergency or extraordinary circumstance that would justify the 

delay. 

“A prompt judicial determination of probable cause for an arrest is one of the most important 

protections afforded citizens under the Fourth Amendment’s prohibition of unreasonable 

seizures. To assure that protection, the forty-eight-hour rule established by Riverside must be 

carefully observed by police authorities.” Whitehead, 238 Mich App at 14 (quotation marks and 

citation omitted). If a defendant is arraigned more than 48 hours after arrest, the delay is 

presumptively unreasonable absent extraordinary circumstances. People v Cain, 299 Mich App 

27, 49; 829 NW2d 37 (2012), aff’d in part, vacated in part on other grounds 495 Mich 874 

(2013). “The exclusionary rule applies whenever a statutorily unlawful detention has been 

employed as a tool to directly procure any type of evidence from a detainee. However, while an 

improper delay in arraignment may necessitate the suppression of evidence obtained as a result 

of that delay, the delay does not entitle a defendant to dismissal of the prosecution.” Id. 

(quotation marks, brackets, and citation omitted). 

 Defendant committed the crimes in this case in the early morning hours of July 28, 2012, 

and he was arrested without a warrant before he was taken to the hospital by EMS that morning. 

Because defendant did not raise this issue below, the exact time of arrest is not indicated in the 
-22- 

record, although it was apparently before 10:00 a.m. because the police officer who accompanied 

defendant to the hospital testified that she remained at the hospital with defendant until 

approximately 10:00 a.m. that morning. On July 29, 2012, a magistrate signed a felony warrant 

finding that there was probable cause to believe that the charged offenses were committed and 

that defendant committed the offenses and commanding that defendant be arrested and brought 

before the court immediately. The felony complaint was filed on July 29, 2012, and it was 

signed by the magistrate. Defendant’s arraignment was held in the hospital on July 30, 2012, at 

11:14 a.m. It therefore appears that the arraignment was held slightly more than 48 hours after 

defendant was arrested. “However, the proper remedy for this delay is the suppression of any 

evidence directly procured as a result of that delay.” Id. at 49. Defendant does not specify any 

evidence that was allegedly procured by his unlawful detention. The record does not indicate 

that any evidence was procured during this short period. Rather, the evidence was recovered 

from the crime scene in the hours after defendant’s arrest. No evidence was obtained as a result 

of the alleged undue delay. “Because there was no evidence to suppress, the delay in defendant’s 

arraignment was not outcome-determinative, and he is not entitled to relief on this issue.” Id. at 

50. 

 Defendant makes various other assertions in his argument on this issue, including that he 

was improperly identified by name in the hospital arraignment procedure without a witness, that 

the denial of his motion to quash the information deprived him of due process, and that he should 

not have been compelled to testify as a witness against himself. These claims are waived 

because they are not included in defendant’s statement of questions presented. See Bennett, 290 

Mich App at 484 n 4. Also, defendant offers no elaboration concerning what he means by any of 

these allegations. It is not this Court’s role to discover and rationalize the basis for an appellant’s 

claims. Kelly, 231 Mich App at 640-641. We do not know what defendant means by his 

assertion that he was improperly identified by name in the hospital arraignment procedure 

without a witness. Defendant does not explain when or how he was allegedly compelled to 

testify as a witness against himself; he did not testify at trial. Defendant does not articulate why 

he thinks the denial of his motion to quash the information8

 deprived him of due process. Given 

the complete lack of elaboration, we find it impossible to review these bare assertions. 

 Affirmed. 

/s/ Elizabeth L. Gleicher 

/s/ Mark J. Cavanagh 

/s/ Karen M. Fort Hood 

 

8

 The motion to quash the information challenged the sufficiency of the evidence to support the 

bindover for first-degree home invasion and unlawful imprisonment.