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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 29, 2016

v No. 321155 Wayne Circuit Court KONRAD DESHAWN MONTGOMERY, LC No. 13-001228-FC

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and J ANSEN and S TEPHENS , JJ.

P ER C URIAM

. A jury convicted defendant of armed robbery, MCL 750.529, assa ult with intent to commit murder, MCL 750.83, and possession of a firearm during t he commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defe ndant to concurrent prison terms of 10 to 25 years each for the armed robbery and assault convic tions, and a consecutive two-year term of imprisonment for the felony-firearm conviction. Defend ant appeals as of right. We reverse defendant’s convictions and remand for a new trial.

Defendant’s convictions arise from the December 11, 2012 robbe ry of LaVince Marks, Jr., who was shot during the offense. Marks testified that he arrived at his home in Detroit at approximately 6:30 p.m., when it was dark outside. A male wear ing a hooded jacket approached him with a gun, pointed the gun a t him, and threatened to shoot him in the head if he made a sound. As instructed, Marks gave the man his money, just over $400, and his cell phone, an iPhone 4s. The gunman then directed Marks to the side of Marks ’s truck, alongside a vacant house, and instructed Marks to get down on his knees and face t he vacant house. Believing he was going to be shot, Marks grabbed the gun with one hand and t he gunman with his other hand. The two men struggled, and Marks was shot twice during the stru ggle. After the gunman obtained control over the gun, he s hot Marks a third time befor e running away and fleeing in a vehicle. Approximately two weeks after the offense, Marks view ed a photographic array and identified defendant as the gunman.

The police had focused on defendant as a suspect after Marks’s son was able to track Marks’s iPhone with a program on his phone. On December 13, 20 12, Marks’s son learned that the cell phone was at a location in Southfield. Southfield pol ice learned that the phone was purchased by Ali Bazzi, who owned a Metro PCS store. Bazzi inf ormed the police that defendant, who sold telephones to Bazzi in the past, sold him M arks’s phone. At trial, Bazzi-2- believed that he purchased the phone from defendant between 6:0 0 p.m. and 8:00 p.m. on December 12, 2012, but defendant testified that he sold the iPh one to Bazzi on December 13, 2012.

Defendant testified at trial that he supported himself by buyi ng and reselling used electronic equipment, and claimed that he purchased Marks’s pho ne on December 12, 2012 in a transaction arranged by acquainta nces. Defendant testified tha t he was at a gentlemen’s club in another area of Detroit at the time of the offense. The defens e called several witnesses who supported defendant’s testimony re garding his whereabouts at th e time of the offense, and who supported his testimony regarding his purchase of the iPhone fr om a woman named Sherell Lewis. At trial, the parties also stipulated to the admission of defendant’s and Marks’s cell phone records for the relevant per iod. They also stipulated to an analysis of those records by Inspector John Jaehnig, who was unavailable to testify at trial . According to the stipulation, at the time of the robbery, defendant’s cell phone was active in t he area of I-75 a nd McNichols, and was not active in the area where the victim resided on the east side of Detroit. During deliberations, the jury asked for guidance on the meaning of “r outed calls” as indicated in the telephone records. With the appr oval of the parties, the trial court read a definition of that term as contained in the records. The jury thereafter convicted def endant as charged.

After defendant filed his claim of appeal, this Court granted defendant’s motion to remand to allow defendant to file a motion for a new trial base d on ineffective assistance of counsel. Defendant argued that trial counsel was ineffective f or not moving for the appointment of expert witnesses regarding cell phone techno logy and eyewitn ess identification, and for not calling Lewis as a witness at trial. At an evidentiary hearing , defendant presented extensive expert testimony in the areas of cell phone technology and eyew itness identifications. He also called Lewis, who stated that sh e acquired Marks’s phone from h er brother and sold it to defendant.

Defendant now argues, and we agree, that reversal is required because of misstatements by the prosecutor during his cl osing argument pertaining to the telephone records and inferences that could be drawn fro m those records.

Although defendant objected to some of the challenged argument s, thereby preserving these claims, he did not object to most of the challenged remar ks, leaving those claims unpreserved. See People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010) (“In order to preserve an issue of prosecu torial misconduct, a defendant m ust contemporaneously object and request a curative instructi on.”). This Court reviews pres erved issues of prosecutorial misconduct de novo to determine if the defendant was denied a f air and impartial trial. Id . An unpreserved issue of prosecutorial misconduct is reviewed for p lain error affecting substantial rights. People v Abraham, 256 Mich App 265, 274; 662 NW2d 836 (2003). “Reversal . . . i s warranted only when a plain erro r resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputatio n of the judicial proceedings.” Id. at 274-275.

Claims of prosecutorial miscondu ct are decided case-by-case, a nd the challenged comments must be read in context. People v McElhaney , 215 Mich App 269, 283; 545 NW2d 18 (1996). The test for prosecutorial misconduct is whether the d efendant was denied a fair trial.-3- People v Bahoda , 448 Mich 261, 266-267; 531 NW2d 659 (1995). A prosecutor is afforded great latitude during closing argument. Id. at 282. The prosecutor is permitted to argue the evidence and reasonable inferences arising from the evidence in support of his theory of the case. Id . However, “[a] prosecutor may not make a statement of fact to the jury that is unsupported by evidence . . . .” People v Ackerman

, 257 Mich App 434, 450; 669 NW2d 818 (2003). The prosecutor “may not argue the effect of testimony that was not entered into evidence.” People v Unger , 278 Mich App 210, 241; 749 NW2d 272 (2008).

As indicated previously, Inspector Jaehnig performed an evalua tion of the telephone records, but did not testify at trial. Instead, the parties en tered into a stipulation regarding Inspector Jaehnig’s analysis of the cell phone and cell tower r ecords. They stipulated that if called as a witness, Inspector J aehnig would testify that betwe en the hours of 6:00 p.m. and 7:00 p.m. on the night of the offense, defendant’s cell phone “was a ctive in the general area of I-75 and McNichols Road, also known as Six Mile, in the City of Detr oit” and “was not active in the area of [the victim’s address] a t the time of the offense.”

During closing and rebuttal arguments, the prosecutor addresse d the significance of the cell phone records and argued that they did not eliminate defen dant as a suspect in the commission of the charged offense. The prosecutor asserted tha t defendant was “pretty savvy when it comes to telephones” and indicated that it was possible that he left his cell phone at the gentlemen’s club, where he was a frequent customer and had many friends, or had his calls either forwarded to another phone or sent directly to voice mail to ma ke it appear that he was at one location when he was actually committing the crime at a differe nt location. Because there was no objection to this argument, review is limited to plain error affecting defendant’s substantial rights. See Abraham , 256 Mich App at 274.

In addition, the prosecutor argued during rebuttal that the de fense witnesses, including defendant, were not credible because they lied about when defen dant sold the phone to Bazzi in Southfield. In support of this argument, the prosecutor again relied on the phone records to argue that defendant’s phone was active and connected to cell t ower 304, near the location of Bazzi’s business, on December 12, 2012, as Bazzi testified, not the next morning, as defendant claimed. Defendant preserved his challenge to these latter rem arks with an appropriate objection at trial. See Bennett , 290 Mich App at 475.

The parties’ stipulation about the results of Inspector Jaehni g’s cell tower analysis established that, at the time of the offense, defendant’s phone was active near the gentlemen’s club, consistent with what defendant and his witnesses testifie d, and was not active in the area where the victim was robbed. The stipulation did not address a nything about voice mail usage or forwarding of calls to another phone. A critical aspect of the prosecution’s theory of the case was explaining why the telephone records did not eliminate defe ndant as the person who committed the robbery, despite th e fact that they showed activi ty on his phone in an area away from the crime scene at the time of the offense. The prosecuto r advanced as one possibility that defendant could have set up his phone at one location to forwar d calls to another location, thereby enabling him to rob the victim at one location while ma king it look like he was at a different location. However, this argument was not supported b y the parties’ stipulation, or any other evidence presented at trial. Indeed, the argument not on ly lacked record support, but defendant presented expert tes timony at the post trial evidenti ary hearing that indicated that the-4- prosecutor’s argument was factually incorrect. The prosecutor should have confined his argument to the parties’ stipula tion, which did not address voi ce mail usage or forwarding of calls, and thus did not support the argument that defendant cou ld have used call forwarding or voice mail to enable him to commit the crime at one location, y et have his cell phone activity register to a different location. Because the prosecutor’s arg ument exceeded the scope of the parties’ stipulation and was not supported by any evidence, the prosecutor’s statements were improper.

We also conclude that the prosecutor’s improper argument affec ted defendant’s substantial rights. In order fo r an error to affect substantia l rights, it must be outcome determinative. People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). An error is outcome determinative if it undermines the reliability of the j ury’s verdict. People v Whittaker

, 465 Mich 422, 427; 635 NW2d 687 (2001). The telephone records were an essential component of defendant’s defense. Although defendant presented witnesses who also supported the defense theory that defendant was not t he person who r obbed the victim, the prosecutor was able to argue that inconsistencies in the witn ess testimony showed that the w itnesses were not credible. That made the telephone records even more important to the defense, because the records were objective, independent evidence th at corroborated the defense w itnesses’ testimony about defendant’s telephone calls and whereabouts, and placed defenda nt at a location other than the crime scene at the time of the offense. The prosecutor’s impro per argument gave the jury a reason to ignore that crucial evidence. Moreover, the argument not only lacked factual support, but according to the unrefuted expert testimony at the evidenti ary hearing, it was factually incorrect.

It is apparent that the jury focused on the telephone records because it sought assistance in understanding them during deliberations, when it asked for a ssistance from the court to determine the meaning of a rout ed call. The jury’s question st rongly suggests that its inquiry was directed at the prosecutor’s improper call-forwarding theor y. Moreover, it is doubtful that the trial court’s handling of the jury’s question served to cla rify the matter for the jury. The court relied on a definition of “ routed call” that was included in the cell phone records, but defendant’s expert explained that the records were difficult fo r a layperson to understand, and he did not believe that the jury instructions were sufficient to e xplain what is meant by a “routed call.”

Because the prosecutor’s improper argument pertained to an ess ential component of defendant’s defense, and it appears that the argument was not o nly unsupported, but also factually incorrect, and that this subject area was also a focu s of the jury’s deliberations, we conclude that the plai n error undermines the reliability of the jury’s verdict and, therefore, affects defendant’s substantial rights. F urthermore, reversal is appro priate because the telephone records support defendant’s cla im that he is actually innocent. See Carines , 460 Mich at 763.

Defendant’s expert also establis hed that the prosecutor incorr ectly argued that defendant’s telephone had been active at cell tower 304 at the time Bazzi believed defendant sold him the telephone, when the records showed that defendant’s tel ephone did not connect to that tower and that he was in another area. It appears that the pro secutor confused “NEID 304” with tower 304 in the records to argue that the records established defendant’s presence near Bazzi’s gas station on December 12, 2012. According to defendant’s exp ert, NEID 304 had nothing to-5- do with tower 304. The prosecutor used that argument to furthe r question the credibility of defendant’s testimony, as well as the testimony of the defense witnesses, that defendant did not sell the phone until the next day. This error, combined with t he prosecutor’s improper callforwarding argument, further s upports reversal of defendant’s c onvictions. 1

Accordingly, we reverse defenda nt’s convictions and remand for a new trial. In light of this decision, we do not address defendant’s additional argumen ts regarding the effective assistance of defense counsel.

Reversed and remanded for a new trial. We do not retain juris diction.

/s/ Amy Ronayne Krause /s/ Kathleen Jansen /s/ Cynthia Diane Stephens

1 Defendant also argues that there was no evidence to support th e prosecutor’s argument regarding whether Marks’s phone was active on December 12. How ever, this argument was supported by the testimony of Marks’s son, who testified that h e began tracking Marks’s phone after the robbery on December 11, 2012, but did not notice any activity until December 13, 2012. The prosecutor’s argument was linked to that testimony and, the refore, was not improper.