-1-

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

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

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

September 14, 2017

v No. 332238

Wayne Circuit Court

SAMUEL ROOSEVELT JONES, LC No. 15-004675-01-FH

Defendant-Appellant.

Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury convictions of carrying a concealed weapon, MCL 

750.227, felon in possession of a firearm, MCL 750.224f, felon in possession of ammunition, 

MCL 750.224f(6), and possession of a firearm during the commission of a felony (felony 

firearm), second offense, MCL 750.227b. He was sentenced, as a fourth habitual offender, MCL 

769.12, to two to five years’ imprisonment for each conviction. We affirm.

Defendant’s convictions arise from him pulling out a gun at a party store after someone 

took his cell phone that had been sitting on the store counter. The loaded gun was recovered 

from the vehicle he was driving.

On appeal, defendant first argues that his convictions were in violation of the double 

jeopardy protections guaranteed by the United States and Michigan constitutions. We disagree.

“A double jeopardy challenge presents a question of constitutional law reviewed de novo 

on appeal.” People v Ackah-Essien, 311 Mich App 13, 30; 874 NW2d 172 (2015). “Generally, 

jeopardy attaches in a jury trial once the jury is empaneled and sworn.” Id. at 32. “Once 

jeopardy attaches, the defendant has a constitutional right to have his or her case completed and 

decided by that tribunal.” Id. However, “[i]f the trial is concluded prematurely” and “the 

defendant consented to the interruption[,]” then a retrial for the same offense is not prohibited. 

Id. (citation omitted).

In this case, the jury in defendant’s first trial was dismissed after it had been empaneled 

but before it was sworn in, because of issues with defendant’s trial counsel and scheduling 

conflicts with some of the jurors. Before defendant’s second trial began, he argued that there 

may be a double jeopardy issue because he believed that the jury had been sworn in twice 

(before voir dire and after being empaneled) and that jeopardy may have attached. However, the 
-2-

trial court proceeded, based on the minutes from the first trial and the recollection of the 

prosecutor that the first jury had not been sworn in after it was empaneled. The transcripts from 

the first trial, which were not available before defendant’s second trial began, confirmed that the 

jury was not sworn after being empaneled.

Defendant now argues that a second oath is not required for jeopardy to attach and relies 

on People v Cain, 498 Mich 108; 869 NW2d 829 (2015), to support his position. In Cain, the 

clerk mistakenly gave the empaneled jurors the oath given before voir dire, not the juror’s oath. 

Id. at 113. While our Supreme Court emphasized the importance of the juror’s oath, it concluded 

that the fairness, integrity, and public reputation of that particular proceeding was not seriously 

affected. Id. at 118-119, 128-129. The Court did not hold, or even imply, that the juror’s oath is 

not required for jeopardy to attach. See id. at 121-124. Accordingly, because the jury in 

defendant’s first trial had not been “empaneled and sworn,” jeopardy had not yet attached. See 

Ackah-Essien, 311 Mich App at 32.

Moreover, when the trial court asked for any objections to starting over with a new jury, 

noting that the jury had not yet been sworn in, defendant did not object to this course of action. 

Accordingly, because defendant consented to a new trial with a new jury, a retrial was not 

prohibited even if jeopardy had attached. See id. Therefore, defendant’s second trial was not in 

violation of double jeopardy.

Next, defendant argues that he was denied a fair trial when the prosecutor engaged in 

misconduct by cross-examining him as to the truthfulness of the testifying police officers. We 

disagree.

Defendant failed to preserve the issue of prosecutorial misconduct for appellate review 

because he did not “contemporaneously object and request a curative instruction.” People v 

Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). This Court reviews unpreserved issues 

for plain error affecting substantial rights. Id. That is, this Court will only reverse where the 

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

integrity or public reputation of judicial proceedings independent of the defendant’s innocence. 

Id. at 475-476 (quotation marks and citation omitted). Further, where a curative instruction 

could have alleviated any prejudice, there is no error requiring reversal. Id. at 476 (citation 

omitted).

At trial, the prosecutor asked defendant multiple times whether he heard the police 

officers’ testimony and asked defendant to comment on the officers’ truthfulness. Specifically, 

the prosecutor asked defendant, “[s]o your testimony, then, is that these Officers made that up?” 

The prosecutor also asked defendant if the police officers “made up the fact that you went and 

got your gun, but they didn’t make up the fact that you came to them with a complaint about 

your stolen [phone], correct?” And when defendant testified that he did not have a gun at all, the 

prosecutor stated, “[o]kay. So, these Officers are just making up what they saw?” Any 

comments by defendant as to the testifying police officers’ truthfulness were in response to direct 

questions by the prosecutor.

“Generally, ‘[p]rosecutors are accorded great latitude regarding their arguments and 

conduct.’ ” People v Cooper, 309 Mich App 74, 91; 867 NW2d 452 (2015), quoting People v 
-3-

Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). However, our “Supreme Court has held 

that it is improper for a prosecutor to ask a defendant to comment on the credibility of 

prosecution witnesses because his or her opinion ‘is not probative of the matter.’ ” People v 

Gaines, 306 Mich App 289, 308; 856 NW2d 222 (2014), quoting People v Buckey, 424 Mich 1, 

17; 378 NW2d 432 (1985). Accordingly, the prosecutor erred when she asked defendant to 

comment on the truthfulness of the testifying officers. However, as in Gaines, 306 Mich App at 

308, in this case, a timely objection could have cured this error and the trial court instructed the 

jurors that the testimony of a police officer “is to be judged by the same standards you use to 

evaluate the testimony of any other witness[,]” the jurors must decide which witnesses to believe 

and the facts of the case, and the attorney’s questions to the witnesses are not evidence.

Further, in Buckey, 424 Mich at 16-17, our Supreme Court considered similar improper 

questioning, where the prosecutor asked the defendant whether he believed the complainant, a 

detective, and four witnesses were lying. The defendant answered that the witnesses were either 

lying, did not realize what was happening, or were lying about certain things. Id. at 7 n 3. While 

the Supreme Court agreed that the prosecutor improperly asked the defendant to comment on the 

witnesses’ credibility, it held that the error did not unfairly prejudice the defendant. Id. at 17. 

The Court noted that the prosecutor was trying to “discredit defendant by inviting him to label 

prosecution witnesses ‘liars[,]’ ” but concluded that “the substance of the exchange indicates that 

defendant dealt rather well with the questions[,]” and the Court could not discern how the 

defendant was harmed by them. Id. Defendant argues that this case is distinguishable from 

Buckey because this case is a pure credibility contest. But this is not a case involving a one-onone credibility contest. In this case, multiple police officers testified to essentially the same 

version of events, but from their own perspective. Accordingly, defendant did not establish that 

the prosecutor’s improper questions affected his substantial rights.

Finally, defendant argues that his trial counsel’s failure to object to the improper 

questioning denied him the effective assistance of counsel. We disagree. Because defendant did 

not file a motion for a new trial or seek a Ginther1 hearing in the trial court, our review is limited 

to mistakes apparent on the record. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 

(2008).

Counsel is presumed effective, and a defendant has a heavy burden to prove otherwise. 

Id. To establish a claim of ineffective assistance of counsel, “ ‘the defendant must show that (1) 

defense counsel’s performance was so deficient that it fell below an objective standard of 

reasonableness and (2) there is a reasonable probability that defense counsel’s deficient 

performance prejudiced the defendant.’ ” People v Johnson, 315 Mich App 163, 174; 889

NW2d 513 (2016), quoting People v Heft, 299 Mich App 69, 80-81; 829 NW2d 266 (2012). 

“This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, 

nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 

Mich App 251, 255; 631 NW2d 764 (2001).

 1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
-4-

Although we agree that the prosecutor improperly questioned defendant regarding the 

truthfulness of the testifying police officers, defendant has not shown that his trial counsel’s 

failure to object to the improper questions was objectively unreasonable under the circumstances. 

Given that it was clear that defendant’s testimony contradicted that of the police officers, it was 

not unreasonable for trial counsel to allow defendant to agree that the officers had “made up” 

their testimony. In fact, trial counsel’s closing argument focused on the argument that the police 

officers should not be believed, and defense counsel even expressly stated that one of the officers 

lied. Accordingly, trial counsel’s failure to object could reasonably be viewed as trial strategy, 

which this Court will not second guess. See id.

Further, as stated above, the trial court instructed the jurors that police officers are to be 

judged by the same standards as any other witness, the jurors must decide which witnesses to 

believe and the facts of the case, and the attorney’s questions to the witnesses are not evidence. 

Accordingly, because defendant did not show that he was prejudiced by the prosecutor’s 

improper questions, he cannot establish that his counsel was constitutionally ineffective.

Affirmed.

/s/ Michael F. Gadola

/s/ Mark J. Cavanagh

/s/ Brock A. Swartzle