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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UNPUBLISHED

July 6, 2017

v No. 332190

Saginaw Circuit Court

TRAVIS TRAVON SAMMONS, LC No. 15-041848-FC

Defendant-Appellant.

Before: TALBOT, C.J., and BECKERING and M.J. KELLY, JJ.

PER CURIAM.

A jury convicted defendant, Travis Sammons, of conspiracy to commit open murder, 

MCL 750.157a.1 The trial court sentenced him as a third habitual offender, MCL 769.11, to life 

in prison with the possibility of parole. Defendant appeals as of right. We affirm.

I. BASIC FACTS

Defendant’s conviction arises from the murder of Humberto Casas in the afternoon of

June 21, 2015, in Saginaw, Michigan. Police charged defendant and codefendant, Dominique 

Ramsey, with the crime, and the same jury tried the two men. Two eyewitnesses testified to the 

fatal shooting at the trial. Rosie Watkins testified that she was driving north on Cumberland 

Street when she observed three men on the opposite side of the road. She testified that the first

man shot the second man, who bent over, and the third man got into a vehicle while the first man 

continued shooting. Then the shooter got into the vehicle. Watkins described the vehicle as a 

gray or silver Jeep. Approximately 11 minutes after dispatch received a call regarding the 

shooting, police pulled over a Jeep matching that description. Watkins positively identified a

photograph of the Jeep admitted into evidence at trial as the Jeep she saw at the shooting. In the 

Jeep were defendant and Ramsey.

 1 The jury acquitted defendant of open murder, MCL 750.316, possession of a firearm by a felon, 

MCL 750.224f, and three counts of possession of a firearm during the commission of a felony, 

MCL 750.227b. 
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Dyjuan Jones, who was 16-years old at the time of the shooting, testified that he was 

riding in the backseat of his mother’s car when he heard what sounded like three firecrackers 

going off. He looked in the direction of the sound and witnessed the shooting, including the 

assailant’s firing at least seven more shots into the victim, who was rolling from the sidewalk 

into the street in an apparent attempt to avoid being hit.

2

 Jones was approximately 20 to 25 feet 

away from the shooting. He, too, observed a gray Jeep at the scene that he agreed looked similar 

to the one in the photograph identified by Watkins.

The prosecution produced a composite video made from nine or ten surveillance tapes

that depicted a silver Jeep Commander starting from the corner where the homicide occurred to 

the location where defendant and Ramsey were detained after a traffic stop. Jones described the 

shooter as an African-American male wearing a white T-shirt. Michigan State Police Sergeant 

David Rivard testified that Jones identified defendant as the shooter at a showup conducted at the 

police station a few hours after the shooting. However, Jones maintained that he did not identify 

defendant while at the police station.

The jury found both defendant and Ramsey guilty of conspiracy to commit open murder. 

Both men filed motions for a directed verdict or a new trial. The trial court denied defendant’s 

motion, but granted Ramsey’s, holding that there was insufficient evidence to convict him.

3 This 

appeal ensued.

II. ADMISSION OF IDENTIFICATION TESTIMONY

On appeal, defendant contends that the trial court clearly erred by denying his motion to 

suppress the testimony about Jones’s identification of defendant at a police-station showup.

4

This Court reviews a trial court’s determination in a suppression hearing regarding the admission 

of identification evidence for clear error. See People v McDade, 301 Mich App 343, 356; 836 

NW2d 266 (2013). The Court reviews the trial court’s findings of fact for clear error, People v 

Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005), and its rulings on questions of law, including 

constitutional issues, de novo, People v Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007). 

 2 Felicia Little, Jones’ mother, testified that she was driving northbound on Cumberland when 

she witnessed the victim walking along the sidewalk, at which time the assailant walked up from 

around a truck and started shooting the victim, who then fell into the southbound lane of the 

street. She testified that two trucks were parked at the scene, one burgundy and one silver or 

gray. She described Cumberland as a “two-lane very small street,” and she was trying not to run 

over the victim as she attempted to get away from the shooting. 

3 We note that this Court had denied the prosecutor’s application for leave to appeal the trial 

court’s decision. People v Ramsey, unpublished order of the Court of Appeals, entered 

December 29, 2016 (Docket No. 334614). In lieu of granting leave to appeal, on May 2, 2017, 

our Supreme Court has remanded the case to this Court for consideration as on leave granted. 

People v Ramsey, ___ Mich ___; ___ NW2d ___ (Issued May 2, 2017, Docket No. 155321).

4 A showup is “a police procedure in which a suspect is shown singly to a witness for 

identification, rather than as part of a lineup.” Black’s Law Dictionary (10th ed.), p 1591.
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“A decision is clearly erroneous when the reviewing court is left with a definite and firm 

conviction that a mistake has been made.” People v Barclay, 208 Mich App 670, 675; 528 

NW2d 842 (1995).

Defendant first asserts that absent exigent circumstances, police must use a corporeal 

lineup instead of a showup if a suspect is in custody. Defendant cites for support of this 

proposition People v Kurylczyk, 443 Mich 289, 298 n 8; 505 NW2d 528 (1993) and People v 

Franklin Anderson, 389 Mich 155, 186 n 22; 205 NW2d 461 (1973), overruled by People v 

Hickman, 470 Mich 602; 684 NW2d 267 (2004).

5

 Defendant’s reliance is misplaced. Franklin 

Anderson, 389 Mich at 186 n 22, primarily cites journal and law review articles in support of the 

position to which footnote 22 is appended, i.e., that to use “photographs beforehand to see 

whether important witnesses can identify an accused person whom they are afterwards going to 

see is to pursue a course which is not a proper one.” Franklin Anderson, 389 Mich at 186, 

quoting an English case, Rex v Gross, 17 Crim App Rep 196, 197 (1923). Parenthetical 

explanations in the footnote indicate that the articles distinguish photographic from corporeal 

identification, and generally prefer the latter to the former. Defendant makes no meaningful 

argument regarding how any of the articles cited support his position, and nothing in the footnote 

indicates that the articles collected address corporeal showups of the type at issue. Kurylczyk, 

443 Mich at 298 n 8, refers to a rule set forth by the Franklin Anderson Court that “prohibits the 

use of photographic lineups only when a suspect is in custody or when he can be compelled by 

the state to appear at a corporeal lineup.” Again, however, defendant fails to explain how or why 

a rule that seems to prefer corporeal over photographic identification procedures applies to the 

instant case.

In short, the authorities cited by defendant are inapt to the extent that they address 

photographic showups rather than the corporeal showup conducted in this instance. Even 

assuming that the police should have conducted a lineup rather than a showup because defendant 

was in custody, defendant produced no caselaw holding that his identification at the showup 

must be excluded automatically.

Defendant next asserts that the showup violated his right to due process because it was 

impermissibly suggestive. Due process protects the accused against evidence obtained through 

unnecessarily suggestive identification procedures. Hickman, 470 Mich at 607, citing Moore v 

Illinois, 434 US 220, 227; 98 S Ct 458; 54 L Ed 2d 424 (1977). “In order to sustain a due 

process challenge, a defendant must show that the pretrial identification procedure was so 

suggestive in light of the totality of the circumstances that it led to a substantial likelihood of 

misidentification.” Kurylczyk, 443 Mich at 302. When examining the totality of the 

circumstances, a court should consider relevant factors such as “the opportunity for the witness 

to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of a 

prior description, the witness' level of certainty at the pretrial identification procedure, and the 

 5 Hickman impliedly overruled Kurylczyk to the extent that Kurylczyk relied upon Franklin 

Anderson for the proposition that a suspect in custody is entitled to counsel. See People v Perry, 

317 Mich App 589; __ NW2d __ (2016).
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length of time between the crime and the confrontation.” People v Colon, 233 Mich App 295, 

304-305; 591 NW2d 692 (1998).

In the case at bar, Jones and his mother went to the police station within four or five

hours of the shooting to be interviewed separately regarding the incident. At some point, Rivard

asked Jones to walk down the hallway and look left and right into two interview rooms. Jones 

observed one male seated in each room. According to Rivard, Jones identified the man in Room 

2—i.e., defendant—as the shooter. Defendant moved to suppress the alleged identification that 

Jones made of him, arguing that the showup violated his right to counsel and that the police 

should have held a lineup because he was in custody. Relying on Hickman, the trial court ruled 

that defendant was not denied the right to counsel because that right attaches only at or after the 

initiation of adversarial proceedings, and the showup occurred before defendant was charged 

with any crime. The court also held that the showup was reliable and declined to suppress the 

identification based on the totality of the circumstances even though defendant was shown to 

Jones individually.

Defendant contends on appeal that the showup was unduly suggestive, and thus violative 

of his due-process rights, because the police singled him out by presenting him to Jones alone in 

an interview room. The fact that a procedure is suggestive does not necessarily render it 

constitutionally defective. Kurylczyk, 443 Mich at 306. Rather, the procedure is defective only 

if under the totality of the circumstances there is a substantial likelihood of misidentification. Id. 

at 302. An identification procedure can be unduly suggestive when a witness is led to believe 

that the police have apprehended the right person or where the witness is shown only one person 

or a group in which one person is singled out. People v Gray, 457 Mich 107, 111; 577 NW2d 92 

(1998).

In the case at bar, although defendant was singled out to the extent that he was alone in 

an interview room, he was unrestrained and wearing street clothes, and there were no improper 

suggestions from Rivard that the police had arrested anyone for the shooting or even that 

defendant and Ramsey were suspected to be involved in the shooting. In fact, Jones agreed that 

Rivard did not indicate who the men were and only asked him to see if he knew who was in the 

rooms, and if so, how he knew them.6 Thus, to the extent that defendant’s appearing in a room 

 6 Rivard testified at trial that he did not indicate to Jones that he had any knowledge or 

information regarding either one of the persons in the rooms with respect to their involvement in 

criminal activity. Rather, Jones was being interviewed by another detective about the shooting 

when he stepped into the hallway to use the restroom. Rivard then asked Jones to walk down the 

hallway, look into Interview Room 2 and Interview Room 3, and return to him, at which time he 

asked Jones if he knew who was in the two rooms, and if so, how he knew them. Rivard testified 

that he did not suggest to Jones, using facial expressions, gestures, or anything, that either 

defendant or Ramsey should be identified or were connected with anything. According to 

Rivard, Jones walked back to him and stated that the individual in Room 2—defendant—was the 

shooter. 
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alone was suggestive, there is no indication that comments or actions by the police rendered the 

identification procedure unnecessarily suggestive.

Further, we conclude that the trial court correctly reasoned that there was not a 

substantial likelihood of misidentification under the totality of the circumstances. Jones 

witnessed the shooting and identified defendant as the shooter within hours of the event, when 

the details of the crime would still be fresh in his mind.7 Moreover, that Jones identified 

defendant as the shooter but not Ramsey as the getaway driver—or in any way involved, for that 

matter—supports the trial court’s reasoning that Jones relied on his recollection of the event and 

was not influenced by the suggestiveness of the procedure.

Based on the foregoing, we conclude that the showup procedure was not “so suggestive

in light of the totality of the circumstances that it led to a substantial likelihood of 

misidentification.” Kurylczyk, 443 Mich at 302. Therefore, we are not left with a definite and 

firm conviction that the trial court erred by denying defendant’s motion to suppress the 

identification, and defendant has not sustained his due process challenge.

Defendant also contends that the trial court erred by relying on MRE 801(d)(1)(C) to 

allow Rivard to testify that Jones had identified defendant, and that the testimony was more 

prejudicial than probative. Defendant raised this issue in the trial court in a motion in limine, but 

did not include it in his statement of issues presented to this Court. An argument is not properly 

presented for review if it is not within the scope of the question presented. See MCR 

7.212(C)(5); People v Albers, 258 Mich App 578, 584; 672 NW2d 336 (2003) (indicating that 

this Court can decline to consider an argument not within the scope of the question presented).

Even if defendant had properly presented this issue on appeal, he could not prevail 

because his argument lacks merit. Rivard’s testimony about Jones’s prior identification of 

defendant falls squarely within the ambit of MRE 801(d)(1)(C), which provides that a statement 

is not hearsay if “the declarant testifies at the trial and is subject to cross-examination concerning 

the statement,” and the statement is “one of identification of a person made after perceiving the 

person[.]” See also People v Malone, 445 Mich 369, 377; 518 NW2d 418 (1994) (“As long as 

the statement is one of identification, Rule 801(d)(1)(C) permits the substantive use of any prior 

statement of identification by a witness as non-hearsay, provided the witness is available for 

cross-examination”). Jones testified at trial and was available for cross-examination; therefore, 

the requirements of MRE 801(d)(1)(C) were met.

The crux of defendant’s argument is that admission of Rivard’s testimony was more 

prejudicial than probative because the showup was improper. However, as discussed above, 

defendant did not demonstrate that the showup was improper or that there was a substantial 

likelihood of misidentification under the totality of the circumstances. Therefore, defendant’s 

 7 The shooting occurred shortly after Jones and his mother left church at around 1:00 p.m., and 

Jones asserted that he went to the police station where the showup occurred around 5:00 or 6:00 

p.m.
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argument that Rivard’s testimony was more prejudicial than probative because of alleged errors 

relative to the showup identification procedure must fail.

III. SUFFICIENCY AND GREAT WEIGHT OF THE EVIDENCE

Defendant also contends that there was insufficient evidence to convict him of conspiracy 

and that his conviction was against the great weight of the evidence. This Court reviews a 

defendant’s challenge to the sufficiency of the evidence de novo, People v Cline, 276 Mich App 

634, 642, 741 NW2d 563 (2007), and a trial court’s denial of a motion for a new trial based on 

the great weight of the evidence for an abuse of discretion, People v Unger, 278 Mich App 210, 

232; 749 NW2d 272 (2008). “A trial court abuses its discretion when it selects an outcome that 

does not fall within the range of reasonable and principled outcomes.” People v Young, 276 

Mich App 446, 448; 740 NW2d 347 (2007).

When reviewing a challenge to the sufficiency of the evidence, this Court reviews “the 

evidence in a light most favorable to the prosecutor to determine whether any trier of fact could 

find the essential elements of the crime were proven beyond a reasonable doubt.” People v 

Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006). “Circumstantial evidence and reasonable 

inferences therefrom may be sufficient to prove all the elements of an offense beyond a 

reasonable doubt.” People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). 

“The credibility of witnesses and the weight accorded to evidence are questions for the jury, and 

any conflict in the evidence must be resolved in the prosecutor’s favor.” People v Harrison, 283 

Mich App 374, 378; 768 NW2d 98 (2009).

The jury convicted defendant of conspiracy to commit open murder, MCL 750.157a. 

MCL 750.157a provides that “[a]ny person who conspires together with 1 or more persons to 

commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the 

crime of conspiracy . . . .” In other words, “[a] criminal conspiracy is a partnership in criminal 

purposes, under which two or more individuals voluntarily agree to effectuate the commission of 

a criminal offense.” People v Jackson, 292 Mich App 583, 588; 808 NW2d 541 (2011). The 

individuals must specifically intend to combine to commit the underlying substantive offense, 

and evidence of the conspiracy can be established through circumstantial evidence including the 

acts and conduct of the parties. Id. While defendant was convicted of conspiracy to commit 

open murder, the underlying substantive offense was first-degree murder,8 the elements of which 

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); MCL 750.316(1)(a).

The trial court correctly concluded that there was sufficient evidence, when viewed in the 

light most favorable to the prosecution, for the jury to find defendant guilty of conspiracy to 

commit murder beyond a reasonable doubt. The acts of the parties established an implied 

 8 The substantive offense underlying the conspiracy could not be conspiracy to commit seconddegree murder. See People v Hammond, 187 Mich App 105, 108-109; 466 NW2d 335 (1991) 

(holding that conspiracy to commit second-degree murder is not recognized as a crime under 

Michigan law because conspiracy to commit such an offense is logically inconsistent).
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agreement to commit first-degree murder. Witnesses Jones and Watkins both testified that they 

saw a man shoot the victim, and they saw a second man that they described as the driver of the 

getaway vehicle. Watkins described the vehicle as a gray or silver Jeep, and she identified a 

photograph of the Jeep stopped by police and in which were defendant and co-defendant Ramsey

as the vehicle she saw that day. Sergeant Rivard testified that Jones identified defendant as the 

shooter after observing defendant in an interview room at the police station. Although the record 

contains no evidence of an explicit agreement, the coordinated actions of defendant and the 

driver of the getaway vehicle warrant a fair inference that defendant and the driver conspired 

together to accomplish the shooting, which they intended to result in the death of the victim. 

There was also sufficient evidence of premeditation and deliberation, which can be 

established through the circumstances of the killing itself and the conduct after the homicide. 

People v Robert Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995). “Premeditation and 

deliberation require sufficient time to allow the defendant to take a second look.” Id. In the 

instant case, there was testimony establishing that the victim was shot seven times in the head, 

back, abdomen, thigh and arm. Jones also testified that the shooter’s gun appeared to jam 

briefly, and then he continued firing at the victim. The multiple shots and the fact that the 

shooter had to unjam the firearm support the inference that there was sufficient time for a 

“second look” to evaluate his actions.

Defendant also challenges the sufficiency of the evidence with respect to defendant’s 

identity. Defendant is correct that Jones contradicted Rivard by testifying that he did not tell 

Rivard that defendant was the shooter. However, this is an issue of witness credibility and 

conflicting evidence, and the credibility of witnesses is a question for the jury to resolve while 

this Court resolves any conflict in evidence in the prosecutor’s favor when examining the 

sufficiency of the evidence. Harrison, 283 Mich App at 378. Thus, that Jones contradicted 

Rivard’s testimony does not warrant relief. Defendant also points out that the partial license 

plate of the vehicle given by Jones did not match the plate of the Jeep that defendant and Ramsey 

were stopped in,9 and Little recalled seeing “trucks” at the scene but did not mention a Jeep. But 

Watkins testified that the vehicle she saw was a silver or gray “Jeep” and she positively 

identified the Jeep Commander defendant and Ramsey were in as the one she saw that day. 

Again, this Court resolves conflicting evidence in favor of the prosecution, Harrison, 283 Mich 

App at 378, so conflicting evidence regarding the getaway vehicle does not warrant relief. 

Defendant also points out that Jones testified that the shooter was bald, Watkins testified that she 

initially told police the shooter was bald but also testified that his hair was cut short, and Rivard 

agreed that defendant did not have a shaved or bald head when he was identified by Jones. 

Again, Rivard testified that Jones identified defendant, and conflicting testimony is resolved in 

favor of the prosecution. Harrison, 283 Mich App at 378. Thus, defendant brought to light no 

discrepancy that renders the evidence against him insufficient to secure a conviction after 

resolving conflicts in favor of the prosecution.

 9 Jones agreed that he “probably” told officers that the vehicle had a license plate with the letters 

“CE” or “GE” on it. The Jeep Commander defendant and Ramsey were stopped in had a license 

plate reading DFQ9593. 
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Defendant also challenges the sufficiency of the evidence with respect to the conspiracy 

asserting that there can be no one-man conspiracy, and that the trial court violated this rule when 

it allowed defendant’s conviction to stand, but granted co-defendant Ramsey’s motion for a 

directed verdict and acquitted Ramsey of conspiracy to commit murder. Defendant relies on 

People v James Anderson, 418 Mich 31, 35-36; 340 NW2d 634 (1983), in which our Supreme 

Court explained that the common-law “no one-man conspiracy” rule applies to Michigan’s 

criminal conspiracy statute, MCL 750.157a. “That rule provides that ‘if two are tried together 

for a conspiracy in which no additional persons are implicated, a verdict finding one guilty and 

the other not guilty requires a judgment of acquittal of both’.” Id. at 36, quoting Perkins, 

Criminal Law (2d ed), p 622. The purpose of this rule was to prevent the enforcement of 

“inherently defective or inconsistent verdicts in conspiracy cases.” Id. Defendant contends that 

the no one-man conspiracy rule applies to the instant case because he and Ramsey were tried 

jointly and found guilty of conspiracy, but the trial court granted Ramsey’s renewed motion for a 

directed verdict.

Although the James Anderson Court addressed a hypothetical situation similar to the 

instant case, stating that if two conspirators were tried jointly and the case against the first was 

dismissed as a matter of law while a jury convicted the second, the no one-man conspiracy rule 

would be violated, id. at 37 n 1, the “no one-man conspiracy” rule does not apply to the specific 

facts of this case. This case is analogous to People v Williams, 240 Mich App 316; 614 NW2d 

647 (2000). In Williams, the defendant contended that his conviction for conspiracy to possess 

with intent to deliver over 650 grams of cocaine violated the “no one-man conspiracy” rule 

because his codefendant was found guilty only of conspiracy to possess with intent to deliver 

more than 225 but less than 650 grams of cocaine. This Court reasoned that the verdicts did not 

violate the “no one-man conspiracy” rule because the codefendant was not acquitted, and the 

convictions were not sufficiently inconsistent, and rejected the defendant’s claim “in its entirety 

because of the involvement of others.” Id. at 329. This Court held that the “no one-man 

conspiracy” rule did not apply because the felony information charged that the defendant and the 

codefendant had conspired “together and with others,” and there was evidence presented from 

which a jury could find beyond a reasonable doubt that the defendant did conspire with others 

aside from the codefendant to commit the underlying offense. Id. at 330-331.

In the case at bar, as in Williams, the felony information charged defendant with 

conspiring with Ramsey “and/or other unknown persons” to commit open murder. The trial 

court granted Ramsey’s renewed motion for a directed verdict indicating that there was 

insufficient evidence to convict him of participation in the conspiracy as the driver of the 

getaway vehicle.10 Nevertheless, there was testimony from Jones and Watkins that there was a 

 10 The video compilation that tracked the Jeep after the shooting shows that it stopped for three 

minutes and 12 seconds at a house, at which time the passenger exited the vehicle, another 

person entered the house, and then multiple people walked out of the house. The video was shot 

from a distance and the individuals could not be clearly seen; further, the driver’s side was not 

visible. The trial court concluded that it was impossible to determine whether Ramsey was the 

getaway driver in light of the stop at the house and because there was no direct evidence that he 

was involved. The trial court denied defendant’s motion for a directed verdict or a new trial in 
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driver of the getaway vehicle, and the jury could find beyond a reasonable doubt that defendant 

conspired with the unidentified driver to commit murder. Thus, defendant’s assertion that the 

“no one-man conspiracy” rule bars his conviction lacks merit.

Defendant also asserts that the jury would not have convicted him of conspiracy if it had 

known there was insufficient evidence to convict Ramsey of conspiracy. Further, defendant 

argues that the jury must have believed that defendant was not the shooter because it acquitted 

him of murder. While not explicitly stated, the crux of these arguments is that the verdict on the 

conspiracy charge is illogical or inconsistent with the verdict of not guilty on the other charges. 

However, consistency in jury verdicts is not required. People v Vaughn, 409 Mich 463, 465-466; 

295 NW2d 354 (1980). Indeed, juries must make an independent evaluation of each element of a 

charge, and they are free to reach different conclusions concerning an identical element of two 

different offenses. People v Goss (After Remand), 446 Mich 587, 597; 521 NW2d 312 (1994). 

As our Supreme Court explained:

Juries are not held to any rules of logic nor are they required to explain 

their decisions. The ability to convict or acquit another individual of a crime is a 

grave responsibility and an awesome power. An element of this power is the 

jury’s capacity for leniency. Since we are unable to know just how the jury 

reached their conclusion, whether the result of compassion or compromise, it is 

unrealistic to believe that a jury would intend that an acquittal on one count and 

conviction on another would serve as the reason for defendant’s release. These 

considerations change when a case is tried by a judge sitting without a jury. But 

we feel that the mercy-dispensing power of the jury may serve to release a 

defendant from some of the consequences of his act without absolving him of all 

responsibility. [Vaughn, 409 Mich at 466 (citation omitted).]

Thus, defendant’s argument fails because juries are not held to rules of logic or required to return 

consistent verdicts.

Defendant also contends that his conviction was against the great weight of the evidence. 

A verdict is against the great weight of the evidence when “the evidence preponderates so 

heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” 

People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003). Questions involving 

credibility should be left to the trier of fact, and “[c]onflicting testimony, even when impeached 

to some extent, is an insufficient ground for granting a new trial.” People v Lemmon, 456 Mich 

625, 647; 576 NW2d 129 (1998). This Court must defer to the jury’s verdict unless the 

testimony contradicted indisputable physical facts or the witnesses were so far impeached that 

their testimony lost all probative value. Id. at 645-646. In general, “a verdict may be vacated 

only when the evidence does not reasonably support it and it was more likely the result of causes 

outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.” 

People v Lacalamita, 286 Mich App 467, 469; 780 NW2d 311 (2009).

light of all of the evidence, including Rivard’s testimony that Jones positively identified 

defendant as the shooter.
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In the instant case, defendant’s argument that the verdict was against the great weight of 

the evidence is coextensive with his argument that there was insufficient evidence. Thus, for the 

same reasons discussed above, defendant failed to demonstrate that the evidence preponderates 

so heavily against the verdict that it would be an injustice to allow it to stand. Instead, defendant 

brought to light questions of witness credibility and inconsistent testimony, which are properly 

left to the jury to resolve. Lemmon, 456 Mich at 647.

IV. STANDARD 4 BRIEF

Defendant filed a brief in propria persona pursuant to Administrative Order 2004-6, 

Standard 4. Defendant contends that the prosecutor committed misconduct by referencing facts 

during his opening statements and closing arguments that were never presented in evidence. We 

review this issue for plain error because defendant failed to preserve it with a timely objection

below. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001). Issues of prosecutorial 

misconduct are reviewed “on a case-by-case basis by examining the record and evaluating the 

remarks in context, and in light of defendant’s arguments.” People v Thomas, 260 Mich App 

450, 454; 678 NW2d 631 (2004). “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). 

“Where there is no allegation that prosecutorial misconduct violated a specific constitutional 

right, a court must determine whether the error so infected the trial with unfairness as to make 

the resulting conviction a denial of due process of law.” People v Blackmon, 280 Mich App 253, 

262; 761 NW2d 172 (2008).

“A prosecutor may not make a statement of fact to the jury that is not supported by 

evidence presented at trial and may not argue the effect of testimony that was not entered into 

evidence.” Unger, 278 Mich App at 241. However, prosecutors are “free to argue the evidence 

and all reasonable inferences from the evidence as it relates to their theory of the case.” Id. at 

236. Further, a prosecutor’s opening statement is “the appropriate time to state the facts that will 

be proven at trial.” People v Ericksen, 288 Mich App 192, 200; 793 NW2d 120 (2010).

Defendant asserts that it was error for the prosecutor to state during opening statements 

that defendant and Ramsey “agreed and worked together with each other to commit the brutal 

killing of Mr. Casas[.]” He takes issue with the prosecutor’s statement that the evidence 

presented would show that defendant and Ramsey were in a vehicle and that defendant got out 

and shot Casas, that Ramsey aided and abetted defendant, and that the men possessed a firearm. 

Defendant also takes issue with the prosecutor’s description of the shooting and statements about 

the witnesses’ anticipated testimony. But these statements reveal that the prosecutor was 

properly stating the facts that he intended to prove at trial, Ericksen, 288 Mich App at 200, or 

making reasonable inferences from the evidence he intended to introduce as it related to his 

theory of the case, Unger, 278 Mich App at 236. In short, defendant has not pointed to any 

statement made by the prosecutor that was actually outside the scope of the evidence later 

presented at trial or that was not a reasonable inference derived from the evidence later 

presented.

Defendant also contends that the prosecutor violated his Sixth Amendment right to 

confrontation and cross-examination because the prosecutor effectively became an unsworn 
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witness by arguing facts not in evidence. This claim lacks merit because the prosecutor did not 

argue facts not in evidence or in any other way testify against defendant.

Defendant further contends that the prosecutor made statements during closing arguments 

that were unsupported by facts or evidence. However, defendant abandoned these claims by 

merely providing citation to multiple pages of the transcript without specifying what statements 

he takes issue with and without briefing the merits of his claims. See People v Lopez, 305 Mich 

App 686, 694; 854 NW2d 205 (2014) (holding that failure to properly argue the merits of an 

issue results in abandonment on appeal). In any event, after reviewing the pages identified by 

defendant, they merely contain the prosecutor’s arguments relating to his theory of the case or 

his summary of the witnesses’ testimony. Nothing stated by the prosecutor was improper 

because, as we indicated above, prosecutors are “free to argue the evidence and all reasonable 

inferences from the evidence as it relates to their theory of the case.” Unger, 278 Mich App at 

236.

Finally, defendant argues that the prosecutor improperly bolstered the testimony of 

Rivard and vouched for his credibility during closing arguments because the prosecution’s case 

hinged on Rivard’s testimony that Jones identified defendant. “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). 

Nevertheless, a prosecutor may argue from the facts that a witness should be believed. Id. It is 

proper for a prosecutor to “comment on his own witnesses’ credibility during closing argument, 

especially when there is conflicting evidence and the question of the defendant’s guilt depends 

on which witnesses the jury believes.” 

Defendant takes issue with the following statement made by the prosecutor that 

referenced Rivard’s testimony that Jones identified defendant and Jones’s conflicting testimony 

that he did not:

Who has more to lose? When you talk about analyzing the testimony of 

witnesses and when you – and the court will instruct you about motives to say 

things and whether they’re truthful, untruthful, deliberate, un-in-deliberate [sic], 

that sort of thing, who has more to lose here? A 13-year veteran of the Michigan 

State Police Department who’s conducted a number of investigations, or a 16-

year-old kid whose mom recognizes, they shoot witnesses. Who has more to 

lose?

This kid has to survive in society. He has to function in a day-to-day 

living in a place where they shoot witnesses. 

Defendant argues that this statement constitutes improper vouching for the credibility of Rivard. 

In context, this line of argument was clearly a response to defense counsel’s argument that Jones 

had no reason to be untruthful. Additionally, the prosecutor was not implying that he had special 

knowledge of the truthfulness of the police officer. In fact, the prosecutor made no comment 

about his personal knowledge or belief regarding the truthfulness of Rivard; he merely argued 

that Jones had a reason to be untruthful while Rivard did not. Thus, defendant failed to 
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demonstrate that the prosecutor impermissibly bolstered Rivard’s testimony or vouched for his 

credibility.

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

alleged instances of prosecutorial misconduct described above. Review of a claim of ineffective 

assistance of counsel is limited to the existing record where, as here, the defendant fails to move 

for a new trial or an evidentiary hearing. People v Odom, 276 Mich App 407, 415; 740 NW2d 

557 (2007). “To prove that defense counsel was not effective, 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 Heft, 299 Mich App 69, 80-81; 829 NW2d 266 

(2012). “The defendant was prejudiced if, but for defense counsel’s errors, the result of the 

proceeding would have been different.” Id. at 81. “A defendant may meet this burden ‘even if 

the errors of counsel cannot be shown by a preponderance of the evidence to have determined the 

outcome.’ ” People v Trakhtenberg, 493 Mich 38, 56; 826 NW2d 136 (2012), quoting 

Strickland v Washington, 466 US 668, 694; 104 S Ct 2052, 2068; 80 L Ed 2d 674 (1984). “The 

defendant must overcome a strong presumption that counsel’s assistance constituted sound trial 

strategy.” People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).

For the reasons discussed above, defendant failed to demonstrate that there were any

instances of prosecutorial misconduct. Thus, defendant has not shown that counsel’s 

performance fell below an objective standard of reasonableness by failing to make objections. 

Indeed, any objection would have been futile, and counsel is not ineffective for failing to raise a 

futile objection. Ericksen, 288 Mich App at 201.

V. CONCLUSION

We conclude for the reasons stated above that the station-house showup was not 

unnecessarily suggestive and, accordingly, that the trial court did not clearly err in denying 

defendant’s motion to suppress Jones’s identification. Defendant having thus failed to show that 

the “pretrial identification process was so suggestive in light of the totality of the circumstances 

that it led to a substantial likelihood of misidentification[,]” he has failed to sustain his due 

process challenge. Kurylczyk, 443 Mich at 302. We further conclude that Rivard’s testimony of 

Jones’s identification of defendant was admissible pursuant to MRE 801(d)(1)(C) as nonhearsay, and reject defendant’s contention that the trial court should have excluded the testimony 

based on the suggestiveness of the showup. Likewise, for the reasons stated above, we conclude 

that evidence presented at trial was sufficient to sustain defendant’s conviction for conspiracy to 

commit open murder, and that said conviction is not against the great weight of the evidence. 

Finally, we conclude that defendant has not sustained his claims of prosecutorial misconduct, 

and has not shown that the conduct of the prosecutor “so infected the trial with unfairness as to 

make the resulting conviction a denial of due process of law.” Blackmon, 280 Mich App at 262.

Affirmed.

/s/ Michael J. Talbot

/s/ Jane M. Beckering

/s/ Michael J. Kelly