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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

November 10, 2016 

v No. 327732 

Wayne Circuit Court 

TY-RON STEVEN ANDERSON, LC No. 14-010853-FC 

 Defendant-Appellant. 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

v No. 328134 

Wayne Circuit Court 

CALVIN REMON MOSBY, LC No. 14-007725-FC 

 Defendant-Appellant. 

Before: TALBOT, C.J., and K. F. KELLY and MURRAY, JJ. 

PER CURIAM. 

 In Docket 327732, Ty-Ron Steven Anderson (Anderson) appeals as of right his jury trial 

convictions for first-degree premeditated murder, MCL 750.316(1)(a); felon in possession of a 

firearm, MCL 750.224f; and possession of a firearm during the commission of a felony (second 

offense), MCL 750.227b(2). Anderson was sentenced to life in prison without parole for the 

murder conviction, one to five years’ imprisonment for the felon-in-possession conviction, and 

five years’ imprisonment for the felony-firearm conviction. 

 In Docket 328134, Calvin Remon Mosby (Mosby) appeals as of right his jury trial 

convictions for first-degree premeditated murder; two counts of assault with intent to murder 

(AWIM), MCL 750.83; felon-in-possession, and felony-firearm. Mosby was sentenced to life in 

prison without parole for the murder conviction, 25 to 30 years’ imprisonment for each of the 

AWIM convictions, one to five years’ imprisonment for the felon-in-possession conviction, and 

two years’ imprisonment for the felony-firearm conviction. 
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 Finding no errors warranting reversal, we affirm both defendants’ convictions and 

sentences. 

I. BASIC FACTS 

 This appeal involves the murder of eight-year-old Jakari Pearson, who lived at 682 East 

in an area known as the Brewster Projects. The prosecution’s theory of the case was that Mosby 

became enraged after his ex-girlfriend, Samona Cochran, accused Mosby of breaking into her 

home. Mosby, accompanied by 16-year-old Devontae Starks, used a SKS rifle he received from 

Anderson to shoot at Cochran’s home, killing Jakari as he slept in his bed in the early morning 

hours of July 30, 2014. The defendants were tried together before separate juries. 

 Cochran testified that she stopped seeing Mosby in April 2014, three months before the 

shooting. At that time, Mosby told Cochran that if he “couldn’t have me, nobody would.” He 

had threatened to break out her windows and kill the people around her, causing her to file a 

police report. Cochran returned home from breakfast on July 29, 2014 to find that her home had 

been broken into. She called the police, who located her property under a nearby tree. When 

officers first arrived, Cochran did not name Mosby as a possible suspect. But Mosby called her, 

accusing her of telling the officers that he was responsible. While Cochran had not mentioned 

Mosby’s name to police, she had discussed him as a possible suspect with her neighbors. After 

arguing with Mosby, Cochran went back out to where the officers were and specifically 

mentioned Mosby. Mosby left voicemails for Cochran that day. In one, he threatened to “blow 

your f*****’ brains.” 

 Starks testified for the prosecution as part of a plea deal. He testified that Mosby was a 

neighborhood tattoo artist. The two of them had a “joint venture” whereby Starks would sell 

marijuana to Mosby’s customers. Starks testified that he and a friend were responsible for 

breaking into Cochran’s home. Starks’s friend believed that Cochran had stolen some marijuana 

from him. The two men stole various items and left them under a nearby tree. Starks ran into 

Mosby shortly after the robbery and heard Mosby angrily say that Cochran had accused him of 

the theft. Mosby threatened to kill Cochran. Two neighbors testified that Mosby said that he 

would kill Cochran and her son because she was accusing Mosby of breaking into her home. 

Starks did not tell Mosby that he was the person who broke into Cochran’s home because he was 

afraid that Mosby would kill him. 

 Early in the afternoon of July 29, 2014, Starks and Mosby left the neighborhood so that 

Mosby could tattoo Starks’s girlfriend’s sister. Throughout the afternoon, Mosby remained 

angry. When Mosby and Starks returned to the neighborhood that evening, Mosby told Starks 

that the shooting of the house was about to go down. Anderson arrived in a black Jeep with a 

passenger. Anderson gave Mosby a dark hoodie and a semi-automatic rifle and agreed to meet 

Mosby and Starks after the shooting. Mosby and Starks went to the rear of Cochran’s home 

where Jakari slept. Mosby aimed the gun at the building and Starks ran. Starks heard multiple 

gunshots. 

 After the shooting, Starks and Mosby ran to their prearranged location, where Anderson 

was waiting in his Jeep. Eventually, Anderson dropped off Mosby and Starks. Starks gave the 

gun to Anderson’s passenger before he left. Mosby and Starks went to Starks’s girlfriend’s 
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house, where Mosby threatened to kill Starks if he told anyone. Starks gave Mosby money for a 

bus ticket and a different shirt. Mosby and Starks later were arrested. 

 Police executed a search warrant at Anderson’s house and found the SKS rifle that had 

been used to kill Jakari along with a magazine and bullets. Police technicians determined that 

Anderson was the seventh most frequent contact on Mosby’s cell phone. On the morning after 

the shooting, Mosby sent a text to Anderson, “News report 8-year-old boy shot.” 

 During his jail calls, Anderson indicated that “the juv” presumably Starks, would be 

testifying and said “one of them niggas is telling.” At trial, the officer in charge testified that 

Starks’ mother had been moved, as she had received threats from the person who had been the 

passenger in defendant’s Jeep. 

II. SUFFICIENCY OF THE EVIDENCE 

 Both defendants argue that the evidence was insufficient to support their convictions. 

“This Court reviews de novo defendant’s challenge to the sufficiency of the evidence. We view 

the evidence in the light most favorable to the prosecution to determine whether a rational trier of 

fact could have found the essential elements of the crime to have been proved beyond a 

reasonable doubt.” People v Meissner, 294 Mich App 438, 452; 812 NW2d 37 (2011). 

A. ANDERSON 

 On appeal, Anderson concedes that there was sufficient evidence to support his felon-inpossession and felony-firearm charges. He challenges only his murder conviction. 

 “The elements of first-degree murder are (1) the intentional killing of a human (2) with 

premeditation and deliberation.” People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 

(2010). 

 The aiding and abetting statute, MCL 767.39, provides that a defendant may be convicted 

if he aided or abetted in the commission of a charged crime. The statute reads: 

Every person concerned in the commission of an offense, whether he directly 

commits the act constituting the offense or procures, counsels, aids, or abets in its 

commission may hereafter be prosecuted, indicted, tried and on conviction shall 

be punished as if he had directly committed such offense. 

Therefore, in order to be convicted under an aiding and abetting theory, the prosecution must 

prove: 

(1) the crime charged was committed by the defendant or some other person; (2) 

the defendant performed acts or gave encouragement that assisted the commission 

of the crime; and (3) the defendant intended the commission of the crime or had 

knowledge that the principal intended its commission at the time that [the 

defendant] gave aid and encouragement. [People v Robinson, 475 Mich 1, 6; 715 

NW2d 44 (2006).] 
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“The phrase ‘aids or abets’ is used to describe any type of assistance given to the perpetrator of a 

crime by words or deeds that are intended to encourage, support, or incite the commission of that 

crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). “In determining whether a 

defendant assisted in the commission of the crime, the amount of advice, aid, or encouragement 

is not material if it had the effect of inducing the commission of the crime.” Id. at 71. Whether 

and to what extent a defendant acts or gives encouragement “must be determined on a case-bycase basis.” Id. 

 Anderson concedes that the evidence was sufficient to convict Mosby as the principle, 

but that the evidence was insufficient that Anderson shared Mosby’s intent to kill. 

 In Robinson, the defendant agreed with his codefendant that they would go to the 

victim’s house and “f*** him up.” The defendant drove to the victim’s home and provided the 

first blows to the victim. Once the victim was on the ground, the codefendant began to kick the 

victim. The defendant told his codefendant “that was enough” and walked back to the car. The 

defendant heard a single gunshot; the codefendant had shot the victim. The trial court found the 

defendant guilty of second-degree murder, but this Court reversed, finding that there was 

insufficient evidence to support the defendant’s conviction because there was no evidence 

establishing that the defendant was aware of his codefendant’s intent to kill the victim. Id. at 4-

5. Our Supreme Court reversed, holding that the natural and probable consequence of 

aggravated assault was death. While the defendant may have only intended to assault the victim, 

it was foreseeable that a plan to assault someone could “escalate the assault to murder” and the 

fact that defendant “serendipitously left the scene of the crime moments before [the] murder does 

not under these circumstances exonerate him from responsibility for the crime.” Id. at 11-12. 

The Court explained that “sharing the same intent as the principal allows for accomplice liability. 

However, sharing the identical intent is not a prerequisite to the imposition of accomplice 

liability.” Id. at 14. The Court held: 

[A] defendant must possess the criminal intent to aid, abet, procure, or counsel the 

commission of an offense. A defendant is criminally liable for the offenses the 

defendant specifically intends to aid or abet, or has knowledge of, as well as those 

crimes that are the natural and probable consequences of the offense he intends to 

aid or abet. Therefore, the prosecutor must prove beyond a reasonable doubt that 

the defendant aided or abetted the commission of an offense and that the 

defendant intended to aid the charged offense, knew the principal intended to 

commit the charged offense, or, alternatively, that the charged offense was a 

natural and probable consequence of the commission of the intended offense. [Id. 

at 15.] 

 The prosecution presented sufficient evidence to convict Anderson of first-degree 

murder. Anderson provided Mosby with the murder weapon and also provided transportation 

after the shooting. A reasonable jury could conclude that Anderson disregarded the likelihood 

that the natural tendency of his acts was to cause death. Clearly Anderson performed acts or 

gave encouragement that assisted Mosby in Jakari’s murder. 

B. MOSBY 
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 Mosby was convicted of first-degree murder, AWIM, felon-in-possession, and felonyfirearm. As previously stated, “[t]he elements of first-degree murder are (1) the intentional 

killing of a human (2) with premeditation and deliberation.” Bennett, 290 Mich App at 472. 

“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 McRunels, 237 Mich 

App 168, 181; 603 NW2d 95 (1999). A felon-in-possession charge requires that the prosecution 

prove: (1) the defendant possessed a firearm, (2) the defendant was previously convicted of a 

specified felony, and (3) fewer than five years had elapsed since he or she paid all fines, served 

all terms of imprisonment, and completed all terms of probation or parole imposed for the 

offense. MCL 750.224f(2)(a). Finally, the elements of felony-firearm are that the defendant 

possessed a firearm during the commission of or the attempt to commit a felony. MCL 

750.227b(1). “[T]he elements of an offense may be established on the basis of circumstantial 

evidence and reasonable inferences from the evidence.” People v Dunigan, 299 Mich App 579, 

582; 831 NW2d 243 (2013). 

 On appeal, Mosby argues that the evidence was insufficient to prove that he was the 

shooter. “[I]dentity is an element of every offense.” People v Yost, 278 Mich App 341, 356; 749 

NW2d 753 (2008). Mosby’s primary allegation on appeal is that Starks’s testimony was not 

credible and that it contradicted other witnesses and other evidence. However, our Supreme 

Court has admonished: 

 Of course, appellate courts are not juries, and even when reviewing the 

sufficiency of the evidence they must not interfere with the jury’s role: 

“[An appellate court] must remember that the jury is the sole judge of the 

facts. It is the function of the jury alone to listen to testimony, weigh the 

evidence and decide the questions of fact.... Juries, not appellate courts, 

see and hear witnesses and are in a much better position to decide the 

weight and credibility to be given to their testimony.” 

[People v Wolfe, 440 Mich 508, 514–15; 489 NW2d 748, amended 441 Mich 

1201 (1992), quoting People v Palmer, 392 Mich 370, 375–376, 220 NW2d 393 

(1974).] 

As such, an appellate 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 Eisen, 296 Mich App 326, 331; 

820 NW2d 229 (2012), quoting People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 

(2008). Likewise, “[i]t is for the trier of fact, not the appellate court, to determine what 

inferences may be fairly drawn from the evidence and to determine the weight to be accorded 

those inferences.” People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). 

 There was sufficient evidence that Mosby was the shooter. Numerous witnesses testified 

that Mosby was upset with Cochran, thinking that she had given his name to police as a possible 

suspect for the break-in. He verbalized his intent to kill Cochran and anyone else in her home. 

Mosby’s cellular records put him in the area of the shooting and in contact with Anderson, who 

provided the gun and transportation. Although no one actually saw Mosby shoot the weapon at 
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Cochran’s house, the circumstantial evidence and inferences therefrom were sufficient to prove 

Mosby’s guilt. 

III. PROSECUTORIAL ERROR 

 Both defendants argue that the prosecutor erred in a variety of ways. Neither defendant 

objected to these alleged errors. As such, our review “is limited to ascertaining whether plain 

error affected defendant’s substantial rights. People v Brown, 279 Mich App 116, 134; 755 

NW2d 664 (2008). “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.” People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008). 

 “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” to determine the propriety of a prosecutor’s 

remarks in the context of the facts of the case and in relation to the defendant’s arguments. Id.

A. ANDERSON 

1. MISSTATEMENT OF LAW 

 Anderson first argues that the prosecutor misstated the law when discussing Anderson’s 

knowledge and intent. “A prosecutor’s clear misstatement of the law that remains uncorrected 

may deprive a defendant of a fair trial. However, if the jury is correctly instructed on the law, an 

erroneous legal argument made by the prosecutor can potentially be cured.” People v Grayer, 

252 Mich App 349, 357; 651 NW2d 818 (2002) (internal citation omitted). 

 During closing arguments, the prosecutor argued: 

 Now, Mr. Anderson. Mr. Anderson’s jury you’re gonna get an instruction 

on aiding and abetting. Did Anderson assist Mr. Mosby in any way? You need to 

think about whether or not what Mr. Mosby did was first-degree murder or 

second-degree murder, because whatever Mr. Mosby did, is what Mr. Anderson 

did, if he helped Mr. Mosby do it, okay. 

 Now, this case I want you to look at this aiding and abetting instruction. 

Okay. Anyone who intentionally assists someone else who [sic] committing a 

crime is guilty as the person who directly commits it, and can be convicted of the 

crime as an aider and abetter. To prove this charge, we have to prove the 

following beyond a reasonable doubt. 

 First, that the alleged crime was actually committed, either by the 

defendant or someone else. It doesn’t matter whether anyone else has been 

convicted of that crime. Second, that before or during the crime the defendant did 

something to assist in the commission of the crime. Okay, we have before and 

during in this case. We have Mr. Anderson speaking with Mr. Mosby as of noon 
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that day, remember that text? That text [“]we got problems[“] that Mr. Mosby 

sends to Mr. Anderson. 

 This is around the same time that Mr. Mosby is walking around the 

neighborhood threatening to kill Samona and everybody else, threatening to kill 

Samona, threatening to kill Samona and her son. They continue to stay in contact 

and it’s not until Mr. Anderson gets off work that he goes all the way back to his 

house in Warren and directly back down with the gun in this case, okay. So when 

we’re talking about assisting, we’re talking about providing the SKS assault rifle, 

providing that piece of clothing to cover up it [sic], and providing him with a ride. 

 Third, that the time the defendant must have intended the commission of 

the crime alleged, or must have known that the other person intended its 

commission, or that the crime alleged was a natural and probable consequence of 

the commission of the crime intended. 

 What does this mean? For the Anderson jury, whatever Mr. Mosby does 

in for a penny, in for a pound, Mr. Anderson is guilty of it. If Mr. Anderson, if 

you want to give him all the benefit of the doubt in the world, all the benefit of the 

doubt, and you think that he just provided a gun to Mr. Mosby to shoot up that 

house, what’s the natural probable consequence of using an SKS assault rifle to 

shoot up a house? That somebody’s gonna get hurt or killed. 

 So you’ve got to think about what Mr. Mosby intended. Whatever he 

intends transfers onto Mr. Anderson if he’s helping him in anyway [sic]. But 

even if you wanna give him any kind of benefit of the doubt, there’s this language 

that you have to consider also, the natural and probable consequences of Mr. 

Anderson’s actions. 

*** 

 When you think about the intent in this case, this wasn’t like Mr. 

Anderson just brought a rifle from around the block. It wasn’t an easy feat. He 

actually had to drive many miles after communicating with Mr. Mosby to go get 

that rifle. And again, he had a choice. He could have brought the .9 millimeter, 

but he brought the SKS assault rifle. Why? Because that’s what Mosby wanted 

him to do and he was more than happy to help. 

 What does an assault rifle do? Cuts through walls. Mr. Mosby

complained all day about wanting to kill that bitch and her son. You think he 

didn’t tell Mr. Anderson that? Why else would Mr. Anderson go get the assault 

rifle? He provided it to Mosby, he provided clothing to Mr. Mosby, and he 

provided the ride. He’s an aider and abettor and he intended to help Mr. Mosby 

do what he went there to do that night. 

 Defense counsel took exception and argued to the jury that Anderson had no knowledge 

of what Mosby intended to do with the rifle: 
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 But what is most important here is whether Mr. Anderson had knowledge 

of any intent to commit a crime, to commit a killing or a shooting at all, and I 

submit to you at the outset that that evidence is going to fail because it’s not there. 

Excuse me. 

 Now, you also will be dealing with the felony firearm and felon in 

possession charges. I am not gonna waste a whole lot of time. The Eastwood 

address is an address associated with Mr. Anderson. His wife apparently lives 

there. The police tell us he is coming out of that residence. There are bills there 

in his name. There is clothing there that they say is Mr. Anderson’s. I think that 

you can deal with that as you should. 

 My issue, and we take great exception, is with the murder charge. 

Whether you believe that the murder was premeditated or second-degree murder, 

what is at the heart of the matter is whether Mr. Anderson knew what was going 

to happen. Whether Mr. Anderson assisted with the intent of the killing knowing 

the intent of the shooter. 

 That is what aiding and abetting requires, is that there be proof beyond a 

reasonable doubt that he intentionally assisted before or during the killing of 

Jakari Pearson. And that he intended the killing or that he knew that the shooter 

intended the killing himself. 

*** 

 But on this day, you hold Mr. Anderson’s fate in your hand. You’re the 

finders of the facts. You’re the judges of the facts. We ask that you do justice 

and justice demands in this case that certainly as to the murder charges, there is no 

proof beyond a reasonable doubt of his knowledge, of his intent that there be a 

killing or a shooting at that home, or that he had knowledge before the crime that 

that was going to be committed, or that he provided a weapon for that to be done, 

it just does not exist on this record. And so we ask you to do justice again. 

In response, the prosecutor argued during rebuttal: 

 Mr. Anderson, oh he intended for Mr. Mosby to do what he did. He 

intended to give him that rifle to shoot up that house. This wasn’t a scare tactic. 

He had a choice between guns. He also had several choices to make, and he made 

the wrong one every time. But again, it matters what Mr. Mosby intended. What 

did Mr. Mosby intend? And for s [sic] penny, in for a pound, Mr. Anderson helps 

him, he’s just as guilty. 

 “Prosecutorial comments must be read as a whole and evaluated in light of defense 

arguments and the relationship they bear to the evidence admitted at trial.” People v Brown, 279 

Mich App 116, 135; 755 NW2d 664 (2008). It is clear that the prosecutor was responding to 

Anderson’s argument that lack of knowledge absolved him of any wrong-doing. Pointing to the 

evidence in the record, the prosecutor mapped out Anderson’s knowledge. She did not argue 

that lack of knowledge was irrelevant; rather, she argued that the evidence clearly supported a 
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finding that Anderson acted purposefully and with full knowledge of the natural and probable 

consequences of his conduct. 

 Additionally, the trial court properly instructed the jury on the law of aiding and abetting 

and further instructed the jury: “The lawyers’ statements and arguments and any commentary 

are not evidence. They are only meant to help you understand the evidence in each side’s legal 

theories. You should only accept things the lawyers say that are supported by the evidence or by 

your own common [] sense and general knowledge.” Therefore, even if anything that the 

prosecutor said could be construed as a misstatement of law, the jury was correctly instructed. 

2. IMPROPER APPEAL TO THE JURY’S EMOTIONS 

 Anderson next argues that the prosecutor improperly appealed to the jury’s sympathy 

when she asked for justice for Jakari in the following instances: 

 I’m gonna have one more chance to address the Mosby jury in this case, 

when I do, I’m gonna ask for justice – for justice for Jakari. NO child should be 

unsafe sleeping in their own bed. What Mr. Mosby did, it was deliberate, it was 

intentional. He killed that little boy. He did it on purpose. I’m gonna ask you to 

find him guilty when you return. 

*** 

 Under the cover of darkness, kill a woman and her child. I’m gonna have 

another chance to address you all, so when I do, I’m gonna ask for justice for 

Jakari and I’m gonna ask that you return a verdict guilty on all counts. 

*** 

 What happen[ed] to [J]akari, shouldn’t happen. No child should be 

sleeping in their bed, minding their own business and murdered in their sleep. 

Ms. Cochran didn’t deserve this. Jakari didn’t deserve this. 

*** 

 There are no do-overs with a trial. This is it Jakari, he gets justice from 

me, from you, or does he get it? I’m gonna ask you to go back and do the work, 

and that you return a verdict of guilty on all counts. 

 “The prosecutor may not inject issues into a trial that are broader than the defendant’s 

guilt or innocence. The prosecutor commits misconduct when he or she invites jurors to suspend 

their powers of judgment and decide the case on the basis of sympathy or civic duty.” People v 

Lane, 308 Mich App 38, 66; 862 NW2d 446 (2014). “A prosecutor may not appeal to the jury to 

sympathize with the victim. Nor may a prosecutor urge the jury to convict as part of its civic 

duty or on the basis of its prejudices.” Unger, 278 Mich App at 237. The issue is whether the 

prosecutor’s comments deflected the jury’s attention from the evidence of the case. Id. 
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 The prosecutor was not asking the jury to convict Anderson so that someone could be 

held accountable for his death and the family could have a measure of justice; instead, the 

prosecutor clearly argued that, in light of all the evidence presented at trial, Anderson was guilty 

and his conviction would be just. 

B. MOSBY 

1. IMPROPER VOUCHING 

 Mosby argues that the prosecutor improperly vouched for Starks’s testimony when the 

prosecutor told the jury “we want you to know that the work is done and it’s done right, that’s 

the nature of the evidence.” “A prosecutor may not vouch for the credibility of his witnesses by 

suggesting that he has some special knowledge of the witnesses’ truthfulness.” People v Seals, 

285 Mich App 1, 22; 776 NW2d 314 (2009). 

 Mosby takes the prosecutor’s comments out of context. The prosecutor made the 

statement, not to vouch for Starks, but in response to Mosby’s assertion that there was no 

fingerprint evidence. The prosecutor explained that, unlike on television, police were often 

asked to make a choice between testing for DNA evidence or fingerprints: 

 We send the gun for prints, the testimony in this case, we have to choose 

because one test will wipe out the other test. The DNA is the more thorough test. 

It’s not like CSI. You get mixed profiles, people have touched that gun, we had 

DNA on the gun, we just can’t get the profile of it. We want you to know that the 

work is done and it’s done right, that’s the nature of the evidence. I wish we were 

like CSI, but it’s not. But you’ve got Mr. Mosby and Mr. Anderson telling on 

themselves, you’ve got all the physical evidence in this case. You’ve got Mr. 

Mosby making these threats all day long, talking about what he was gonna do, 

leaving voice mails, calling his friend, Mr. Anderson, who has that SKS assault 

rifle. 

The comments were a fair response to Mosby’s attempt to point to the lack of physical evidence 

connecting him to the gun. 

2. ARGUING FACTS NOT IN EVIDENCE 

 Mosby next argues that the prosecutor argued facts not in evidence when she told the jury 

that gunshot residue had been transferred from Mosby’s hands to his tattoo bag. 

 “It is improper bolstering for a prosecutor to vouch for credibility of facts and evidence 

not in the case.” People v Stanaway, 446 Mich 643, 686; 521 NW2d 557 (1994). The 

prosecutor argued: 

 Mr. Starks is not the shooter, that’s why the dog didn’t hit on Mr. Starks 

shirt, but that bag, that giant bag. What’s the first thing that Mr. Mosby went and 

picked up after shooting that gun and handling that gun? His bag. You pick up 

the bag, when you pick up something, yeah, it can transfer the residue. You can 
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put it on your back when you fire the gun. Yeah, that gunshot residue it’s gonna 

transfer onto that bag, and sure enough the dog hits on that bag. 

The prosecutor did not argue facts not in evidence. Starks testified that Mosby retrieved his 

tattoo bag after the shooting. 

3. LEADING QUESTIONS 

 Mosby also argues that he was prejudiced by the prosecutor’s “excessive use of leading 

questions during her direct examination of the witnesses” and then basically points to two 

instances in the record. Defense counsel never objected. Mosby fails to make a cogent argument 

as to how he was prejudiced by such leading questions. 

4. CUMULATIVE ERROR 

 Finally, Mosby argues that the cumulative effect of the prosecutor’s misconduct denied 

him of a fair and impartial trial. It is true that “[t]he cumulative effect of several minor errors 

may warrant reversal even where individual errors in the case would not,” People v McLaughlin, 

258 Mich App 635, 649; 672 NW2d 860 (2003), there were no errors, minor or otherwise. 

IV. STARKS’S COMPETENCY TO TESTIFY 

 Mosby argues that Starks was not competent to testify. “The determination of the 

competency of a witness is a matter within the discretion of the trial court. Such determination 

will be reversed only for an abuse of discretion.” People v Breck, 230 Mich App 450, 457; 584 

NW2d 602 (1998) (internal citation omitted). 

 A trial court may exclude the testimony of a witness if that witness if found incompetent 

under MRE 601, which provides: 

Unless the court finds after questioning a person that the person does not have 

sufficient physical or mental capacity or sense of obligation to testify truthfully 

and understandably, every person is competent to be a witness except as 

otherwise provided in these rules. 

 The trial court cannot be said to have abused its discretion when it was never asked to 

exercise its discretion. Additionally, Mosby’s attempt to make this a competency issue must fail. 

There is no indication that Starks lacked the physical or mental capacity to testify. Mosby claims 

that Starks was not competent to testify based on alleged contradictory evidence and Starks’s 

self-interest. Such issues go to Starks’s credibility, not competency. As previously stated, an 

appellate court “will not interfere with the trier of fact’s role of determining the weight of the 

evidence or the credibility of witnesses.” Eisen, 296 Mich App at 331. 

V. COCHRAN’S IN-COURT CRYING 

 Mosby next argues that he was deprived of a fair trial when the trial court allowed 

Cochran to remain in the courtroom despite her continual, excessive crying. Whether a 

defendant received a fair trial is a constitutional question of law that is reviewed de novo on 
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appeal. People v LeBlanc, 465 Mich 575, 580; 640 NW2d 246 (2002). “Normally, discretionary 

issues are reviewed for an abuse of discretion, which is an unusually difficult standard to 

overcome.” Lease Acceptance Corp v Adams, 272 Mich App 209, 222; 724 NW2d 724 (2006). 

 Immediately after the 911 call was played for the jury the following exchange took place 

outside of the presence of the jury: 

 MS. REED [Mosby’s attorney]: I understand the victim’s rights to be able 

to, the right to stay in the courtroom, but at certain points when certain evidence is 

being presented, if Miss Cochran is going to be unable to control her emotions, 

my client is not gonna receive a fair trial. I’m gonna ask that she not be allowed 

to stay in the courtroom, just crying, and crying, and crying. I believe that is very 

prejudicial to my client, and I do not believe he can get a fair trial with her sitting 

there crying. 

*** 

 THE COURT: Okay. 

 Well, the Crime Victims Rights Act says that she has the right to remain in 

the courtroom. 

 And you know, I, I have no authority to order her not to cry. 

 I mean, her son’s dead. 

 And just by the fact that she’s emotional over the loss of her son, doesn’t 

in any way, I don’t believe, prejudice your client, because it doesn’t do anything 

to establish that he did or didn’t do it. 

 And I have instructed the jury during jury selection, and I will remind 

them again, that sympathy cannot play any role in their decision, in this case. 

 And so, your objection is noted and preserved for the record. 

 But I’m not going to tell a woman who lost her child that she can’t cry. 

 I mean, it just – it is what it is. It’s an emotional thing, and she – by 

statute, she has a right to – by law, she has the right to be in the courtroom, and 

I’m not going to tell her that she has to leave. 

 During testimony that involved photographs of the crime scene, the following exchange 

took place: 

 MS. REED: Because the Court has already ruled on my objection to Mrs. 

Cochran being in the courtroom, and being emotional. 

 The Court has ruled on that. I understand the ruling. 
-13- 

 THE COURT: You’re just making a record. 

 MS. REED: By me making a record, and during Officer Diaz’s testimony, 

where they were showing pictures of the interior of the house, and the – her son’s 

bedroom, she was audibly and visibly crying in the back of the courtroom. That’s 

just for the record . . . 

 MCL 780.761 provides: “The victim has the right to be present throughout the entire trial 

of the defendant, unless the victim is going to be called as a witness.” Mosby cites no law to 

support his position that alleged excessive crying served as a basis for excluding Cochran from 

the courtroom. “Issues insufficiently briefed are deemed abandoned on appeal.” People v Van 

Tubbergen, 249 Mich App 354, 365; 642 NW2d 368 (2002). 

VI. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Anderson argues that he received ineffective assistance of counsel at trial. Because there 

was no Ginther1

 hearing, our review is limited to mistakes apparent on the record. People v Heft, 

299 Mich App 69, 80; 829 NW2d 266 (2012).2

 “To establish a claim of ineffective assistance of counsel, a defendant must show both 

that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the 

defense. In order to demonstrate that counsel’s performance was deficient, the defendant must 

show that it fell below an objective standard of reasonableness under prevailing professional 

norms. In so doing, the defendant must overcome a strong presumption that counsel’s 

performance constituted sound trial strategy.” People v Riley, 468 Mich 135, 140; 659 NW2d 

611 (2003), citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed2d 674 

(1984); People v Pickens, 446 Mich 298, 302-303, 521 NW2d 797 (1994). 

A. FAILURE TO MOVE TO STRIKE MACKIE’S TESTIMONY 

 Sergeant Samuel Mackie interviewed Anderson for six hours. Although the interview 

was videotaped, the video was not played for the jury because of the references to Anderson’s 

parolee status at the time of the crime. At trial, Mackie testified that defendant denied knowing 

anyone associated with the case. On cross-examination, Mackie admitted that he could not recall 

everything and said that he was under the impression that the videotape would be played for the 

jury. The trial court asked, but did not order, Mackie to review the tape and resume his 

testimony the following day. 

 Contrary to Anderson’s contention on appeal, Mackie did, in fact, view the video. When 

trial began the following day, defense counsel asked: 

 

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 

2

 We denied Anderson’s motion to remand. People v Anderson, unpublished order of the Court 

of Appeals, entered February 17, 2016 (Docket No. 327732). 
-14- 

Q. Sergeant Mackie, on yesterday the judge asked you to review the 

videotape of the interview. Did you do that? 

A. I did. 

Defense counsel only asked a few questions. The trial court later noted its dismay: “We sent the 

jury home, we brought this witness back today only to have you ask him three questions, which 

I mean it was really much to do [sic] about nothing.” There was, therefore, no basis for counsel 

to ask that Mackie’s testimony be stricken. “Counsel is not required to raise meritless or futile 

objections.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012). 

B. FAILURE TO OBJECT TO EVIDENCE REGARDING THREATS TO STARKS’S

FAMILY 

 Anderson next argues that defense counsel was ineffective for failing to object to 

testimony regarding threats to Starks’s family. Starks’s mother and brother both received threats 

and his mother was ultimately relocated. Starks believed these threats came from “Titi,” who 

was Anderson’s passenger on the night of the shooting. Evidence of threats against a witness 

must be linked to the defendant if the evidence is offered to show the defendant’s consciousness 

of guilt. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996). A jury could infer that Titi 

was a passenger in Anderson’s car when the shooting occurred and was acting on Anderson’s 

behalf when the alleged threats were made. Evidence that a witness was threatened by someone 

other than the defendant is also admissible for its relevance to the witness’s credibility to explain 

a reluctance to testify, or to explain prior inconsistent statements of the witness. People v 

Johnson, 174 Mich App 108, 112; 435 NW2d 465 (1989); People v Clark, 124 Mich App 410, 

412–413; 335 NW2d 53 (1983). Even if Anderson’s attorney should have objected, Anderson 

fails to show prejudice in light of the overwhelming evidence against Anderson. 

C. FAILURE TO OBJECT TO THE PROSECUTOR’S CLOSING ARGUMENTS 

 Finally, defendant argues that defense counsel was ineffective for failing to object to the 

prosecutor’s misstatement of law during closing arguments as well as the prosecutor’s improper 

appeal for justice for Jakari. However, as previously explained in Section III(A)(2) above, these 

comments were not improper and counsel was under no obligation to object. Eisen, 296 Mich 

App at 329. 

 Affirmed. 

/s/ Michael J. Talbot 

/s/ Kirsten Frank Kelly 

/s/ Christopher M. Murray