If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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UNPUBLISHED

May 14, 2020

v No. 346040

Wayne Circuit Court

DEJUAN DERAY LUMPKINS, LC No. 18-002604-01-FC

Defendant-Appellant.

Before: JANSEN, P.J., and METER and CAMERON, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of first-degree felony murder, MCL 

750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission 

of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to life 

imprisonment without parole for the felony murder conviction and 10 to 20 years’ imprisonment 

for the armed robbery conviction, to be served concurrently, and a consecutive two-year term of 

imprisonment for the felony-firearm conviction. We affirm. 

I. FACTUAL BACKGROUND 

Defendant’s convictions arise from the shooting death of Dimitrios Raptis, whose body 

was discovered early in the morning on August 17, 2016. The night before, Raptis, a crack-cocaine 

user, contacted defendant to purchase drugs and then went to Manning Street in Detroit. Raptis’s 

body was discovered on a sidewalk of a nearby street the next morning. He had been shot three 

times. Defendant, Antonio Jolly, and Antonio Roberson were all charged with felony murder, 

armed robbery, and felony-firearm in connection with Raptis’s shooting death. Jolly and Roberson 

both later pleaded guilty of armed robbery pursuant to plea agreements whereby they agreed to 

testify truthfully at defendant’s trial. 

Roberson, a 16-year-old juvenile at the time of the offense, testified that while Raptis was 

at a drug house, defendant told him that Raptis was carrying a sum of cash. Roberson waited on 

the porch of the house next door until Raptis left the drug house and then followed him. Roberson 

then attacked Raptis, but was unaware that Raptis was trained in marital arts. Raptis fought back, 

refusing to give Roberson any money. Defendant and Jolly joined Roberson in assaulting Raptis. 
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After the three men were able to hold Raptis on the ground, defendant put his hand over Raptis’s 

neck and held a gun on him. While Jolly and Roberson were searching Raptis’s pockets, defendant 

shot Raptis in the pelvis or upper thigh. According to Roberson, he and Jolly ran off, after which 

he heard two more gunshots. 

Jolly also testified at trial, but recanted his prior statements. He admitted that he and 

Roberson were both involved in robbing Raptis, but denied that defendant was involved. The 

prosecutor impeached Jolly with his prior testimony and statements in which he said that defendant 

was involved and was the person who shot Raptis. Jolly admitted making those prior statements,

but claimed that he lied. 

Another witness, Cornelius Smith, testified that defendant admitted shooting the victim a 

few days after the offense. Smith was aware that defendant and Roberson had planned to rob the 

victim. The police recovered a .38-caliber handgun from an abandoned house across the street 

from the drug house. The police determined that spent ammunition recovered from the scene of 

the shooting was fired from that weapon. Forensic testing of the handgun revealed the presence 

of DNA that matched the DNA profile of defendant’s uncle. 

Defendant testified at trial and denied any involvement in the offense. The defense argued 

that the DNA evidence supported Jolly’s and Roberson’s involvement in the offense, but did not 

prove defendant’s involvement. 

Defendant now appeals, raising issues through appointed appellate counsel and in a pro se 

brief filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4 (“Standard 4 

brief”). 

I. DEFENDANT’S BRIEF ON APPEAL

A. ROBERSON’S PRIOR CONSISTENT STATEMENT

Defendant first argues that the trial court erred by allowing the prosecutor to introduce a 

video recording of a conversation between Roberson and his mother in a police interview room 

after Roberson’s arrest in September 2016. During their conversation, Roberson told his mother 

that defendant shot the victim. The prosecution offered the recording as a prior consistent 

statement under MRE 801(d)(1)(B), to rebut defendant’s claim that Roberson fabricated his similar 

trial testimony to take advantage of a favorable plea agreement. 

In People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003), this Court explained: 

The decision whether to admit evidence is within a trial court’s discretion. 

This Court reverses it only where there has been an abuse of discretion. People v 

Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). However, the decision 

frequently involves a preliminary question of law, such as whether a rule of 

evidence or statute precludes the admission of the evidence. We review questions 

of law de novo. Id.; People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). 

Therefore, when such preliminary questions are at issue, we will find an abuse of 
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discretion when a trial court admits evidence that is inadmissible as a matter of law. 

Id. 

The trial court overruled defendant’s hearsay objection to the challenged evidence and 

admitted the evidence under MRE 801(d)(1)(B), which provides that a statement is not hearsay if 

[t]he declarant testifies at the trial or hearing and is subject to cross-examination 

concerning the statement, and the statement is . . . consistent with the declarant’s 

testimony and is offered to rebut an express or implied charge against the declarant 

of recent fabrication or improper influence or motive. 

A consistent statement made after the motive to fabricate arose is not admissible under MRE 

801(d)(1)(B). People v McCray, 245 Mich App 631, 642; 630 NW2d 633 (2001). 

The record clearly indicates that Roberson’s conversation with his mother was offered to 

rebut an express or implied charge that Roberson’s trial testimony implicating defendant and 

identifying defendant as the shooter was fabricated, and was the product of improper influence or 

motive. The defense theory at trial was that Roberson’s trial testimony was not credible because 

it was motivated by a favorable plea offer, which allowed him to plead guilty to the lesser charge 

of armed robbery and avoid a conviction of murder, and to receive a sentence of only eight years 

rather than life imprisonment. Indeed, during defense counsel’s opening statement, he referred to 

the plea agreement as a “gift,” which gave Roberson a reason to lie about who shot the victim. 

Although defendant argues that Roberson had a motive to fabricate at the time he made the 

statement to his mother, the record shows that when Roberson spoke with his mother, he had not 

yet been charged. Moreover, the plea offer was not made until approximately a year and a half 

later. Considering the defense emphasis on the plea agreement as the motivation for Roberson to 

fabricate his trial testimony, the trial court did not abuse its discretion by allowing the prosecution 

to rebut that charge by presenting evidence that Roberson had given the same version during a 

conversation with his mother, which occurred approximately a year and a half before he was 

offered the plea deal. 

B. JOLLY’S RECANTATION TESTIMONY

Jolly entered into a plea agreement whereby he was allowed to plead guilty to armed 

robbery in exchange for dismissal of the felony murder and felony-firearm charges and be required 

to testify truthfully at defendant’s trial. When he entered his plea, he stated that defendant 

participated in the victim’s robbery and it was defendant who possessed the gun. At trial, however, 

Jolly denied that defendant was involved in the offense. Defendant now argues that the prosecutor 

erroneously introduced Jolly’s prior police statements and preliminary examination testimony, 

which were inconsistent with his trial testimony, to impeach his testimony at trial. We disagree. 

Because defendant did not object to the introduction of Jolly’s prior inconsistent statements 

and testimony, this issue is unpreserved. Therefore, we review this issue for plain error affecting 

defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). 

Defendant also argues that defense counsel was ineffective for not objecting to the prior statements 

and testimony. To establish ineffective assistance of counsel, defendant must show that counsel’s 
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performance fell below an objective standard of reasonableness, and that the representation so 

prejudiced defendant that he was denied the right to a fair trial. People v Pickens, 446 Mich 298, 

338; 521 NW2d 797 (1994). Defendant must overcome the presumption that the challenged action 

might be considered sound trial strategy. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 

315 (1991). To establish prejudice, defendant must show a reasonable probability that, but for 

counsel’s error, the result of the proceeding would have been different. People v Johnson, 451 

Mich 115, 124; 545 NW2d 637 (1996). 

Just before he was brought to court to testify at trial, Jolly was held in the same jail cell as 

defendant for up to four hours, despite the fact that there were orders in place to keep them separate. 

Soon after Jolly began testifying as a prosecution witness, he changed his earlier statements and 

testimony and denied that defendant was involved in the offense. 

Defendant argues that it was improper to introduce Jolly’s prior statements and testimony 

because the prosecutor should have anticipated that Jolly would recant his earlier testimony and 

statements. See People v Standifer, 425 Mich 543, 558; 390 NW2d 632 (1986) (a prosecutor may 

impeach a recanting witness’s testimony when it is unexpected and harmful to the prosecutor’s 

case, but the prosecutor may not deliberately place a witness on the stand in order to elicit a denial). 

However, MRE 607 allows the prosecution to impeach its own witness, and MRE 613 allows the 

prosecution to offer Jolly’s prior testimony and statements to impeach Jolly’s inconsistent trial 

testimony. 

In support of his argument that the impeachment evidence was improper, defendant relies 

on People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). In that case, the prosecution called 

the defendant’s nephew to testify regarding an admission the defendant made to his nephew about 

having sexual relations with the victim. Id. at 688-689. After the nephew denied the statement, 

the prosecutor called a police officer to testify that the nephew told him about the defendant’s 

admission. Id. at 689-690. The Court explained that the officer’s impeachment testimony was 

improperly admitted because the only relevance for the nephew’s testimony was whether the 

defendant made the admission to the nephew: 

The only relevance Donald Stanaway’s testimony had to this case was 

whether he made the statement regarding his uncle’s alleged admission. The 

witness had no direct knowledge of any of the alleged incidents and was out of 

town at the time they would have occurred. While prior inconsistent statements 

may be used in some circumstances to impeach credibility, MRE 613, this was 

improper impeachment. The substance of the statement, purportedly used to 

impeach the credibility of the witness, went to the central issue of the case. Whether 

the witness could be believed in general was only relevant with respect to whether 

that specific statement was made. This evidence served the improper purpose of 

proving the truth of the matter asserted. MRE 801.

While the prosecutor could have presented defendant’s alleged admission 

by way of the nephew’s statement, he could not have delivered it by way of the 

officer’s testimony because the statement would be impermissible hearsay. See 

People v Carner, 117 Mich App 560, 571; 324 NW2d 78 (1982). Likewise, a 

prosecutor may not use an elicited denial as a springboard for introducing 
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substantive evidence under the guise of rebutting the denial. People v Bennett, 393 

Mich 445; 224 NW2d 840 (1975). Here the prosecutor used the elicited denial as 

a means of introducing a highly prejudicial “admission” that otherwise would have 

been inadmissible hearsay. The testimony of Officer Peters was that Donald 

Stanaway said that Brian Stanaway said that he had sex with a young girl. This 

would have been clearly inadmissible without Donald Stanaway’s denial. It is less 

reliable in the face of the denial. Absent any remaining testimony from the witness 

for which his credibility was relevant to this case, the impeachment should have 

been disallowed. [Stanaway, 446 Mich at 692-693 (footnotes omitted).] 

Comparatively, in People v Kilbourn, 454 Mich 677; 563 NW2d 669 (1997), our Supreme 

Court declined to apply the rule from Stanaway regarding impeachment of a witness in that case. 

In Kilbourn, the McNamaras, who were the Kilbourns’ neighbors, observed several people fighting 

at the Kilbourns’ residence and called the police. Soon after the police responded, but did not 

make any arrests, Mrs. McNamara received a threatening telephone call from Robert Kilbourn, Sr. 

That same evening, shots were fired into the McNamaras’ home and an ax handle was used to 

break a kitchen window. Kilbourn’s son was charged with two counts of assault with intent to 

cause great bodily harm. Id. at 678-679. 

At trial, Kilbourn was called as a witness and described what occurred at his property 

before the police were initially called. He admitted calling Mrs. McNamara to ask her to first call 

him in the future before contacting the police. However, he denied threatening Mrs. McNamara 

and claimed that she became irate with him. Kilbourn could not recall if he discussed that call 

with any of his sons, including the defendant. Id. at 680. The prosecutor asked Kilbourn if he 

recalled telling a detective that the defendant was responsible for the shooting, which Kilbourn 

denied. Id. The prosecutor then called the detective who spoke to Kilbourn and he testified that 

Kilbourn told him that the defendant was the person who shot into the McNamaras’ house. Id. at 

680-681. 

This Court followed Stanaway and held that it was improper for the prosecutor to impeach 

Kilbourn with the officer’s testimony regarding Kilbourn’s prior inconsistent statement because 

that statement was hearsay and the prosecutor elicited Kilbourn’s denial of the purported 

statement. However, our Supreme Court held that this Court misapplied the rule from Stanaway

to the facts. Kilbourn, 454 Mich at 682. The Court explained: 

Under the current provision of MRE 607 the government can impeach its 

own witness. The general rule is that evidence of a prior inconsistent statement of 

the witness may be admitted to impeach a witness even though the statement tends 

directly to inculpate the defendant. United States v Miller, 664 F2d 94 (CA 5, 

1981). People v Stanaway provided an exception to this rule: A prosecutor cannot 

use a statement that directly tends to inculpate the defendant under the guise of

impeachment when there is no other testimony from the witness for which his 

credibility is relevant to the case. 

In People v Stanaway, the defendant was charged with three counts of thirddegree criminal sexual conduct, MCL 750.520d(1)(a) . . . , involving sexual 

intercourse with the complainant when she was fourteen years old. During the 
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prosecution’s case in chief, Stanaway’s nephew was called to testify. When asked 

by the prosecutor if he had made a statement to Officer Peters regarding an 

incriminating statement Stanaway had made to the witness, the witness denied ever 

having made such a statement. The prosecution then called Officer Peters to the 

stand. The officer testified, over hearsay objections, that the nephew told the officer 

that Stanaway had said he had had sexual relations with a young girl and would be 

in a lot of trouble if caught. This Court held that the prior inconsistent statements 

could not be used to impeach credibility under MRE 613. The reasoning behind 

this is that the witness had no direct knowledge of any of the alleged incidents and 

was out of town at the time the incident would have occurred.

The rule set forth in People v Stanaway is that the impeachment should be 

disallowed when (1) the substance of the statement purportedly used to impeach 

the credibility of the witness is relevant to the central issue of the case, and (2) there 

is no other testimony from the witness for which his credibility was relevant to the 

case.

This is a very narrow rule and does not apply in the instant case. Although 

the substance of the statements used to impeach the credibility of the witness were 

indeed relevant to a central issue of the case, the second prong of the test was not 

met because there was other relevant testimony from the witness for which his 

credibility was relevant. Robert Kilbourn, Sr., testified about a number of events 

that took place before the shooting, and indeed was a key actor in some of these 

events.

The facts here are distinguishable from the situation in People v Ince, 21 

F3d 576 (CA 4, 1994). In People v Ince, the court held that the probative value of 

the contradicting witness’ testimony for impeachment value was “nil.” The court 

noted in Ince that the witness’ in-court testimony did not affirmatively damage the 

government’s case, and the prosecution had no need to attack her credibility. Id. at 

581.

Here, there was at least one direct conflict between Mr. Kilbourn’s 

testimony at trial and that of another witness. Mr. Kilbourn testified that when he 

phoned Mrs. McNamara he only asked the McNamaras to contact him before 

calling the police, and that he made no threats. Mrs. McNamara, on the other hand, 

testified that Mr. Kilbourn had made a threatening phone call to her. We find that 

the officer’s testimony was admissible, because it could properly be used to 

impeach the credibility of Mr. Kilbourn. [Kilbourn, 454 Mich at 682-684 (footnote 

omitted).] 

Turning to the instant case, Jolly admitted being an active participant in the charged 

offense. He was called as a witness to testify regarding his knowledge of the offense, including 

whether defendant was involved and the identity of the shooter, which were central issues in the 

case. This scenario falls within the rule from Kilbourn, not Stanaway. As an admitted participant 

who had knowledge about the offense, Jolly’s credibility was clearly relevant to the case. There 

were conflicts between Jolly’s testimony and Roberson’s testimony regarding whether defendant 
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participated in the offense and whether defendant was the shooter. There were also conflicts 

between Jolly’s testimony and testimony from other witnesses regarding whether Jolly was held 

in the same jail cell with defendant just before he testified, whether Jolly spoke with Smith about 

the robbery, whether defendant had twin uncles, and whether defendant used his uncle’s telephone 

or Jolly’s phone when talking to Raptis about the sale of drugs. Because there was other testimony 

for which Jolly’s credibility was relevant, the prosecutor was permitted to offer Jolly’s prior 

inconsistent statements and testimony to impeach his credibility at trial, including statements that 

tended directly to inculpate defendant. Kilbourn, 454 Mich at 682. Further, because the prior 

inconsistent statements were admissible, any objection by defense counsel would have been futile. 

Counsel is not ineffective for failing to make a futile objection. People v Green, 322 Mich App 

676, 687; 913 NW2d 385 (2018).

Defendant also appears to argue that although the prosecutor could properly argue that the 

jury could consider Jolly’s prior inconsistent preliminary examination testimony as substantive 

evidence, the trial court failed to clarify in its jury instructions that the jury could not consider 

Jolly’s prior inconsistent police statements as substantive evidence. At trial, the prosecutor 

introduced evidence of both Jolly’s prior inconsistent police statements and his prior inconsistent 

preliminary examination testimony. Although the inconsistent police statements could not be 

considered as substantive evidence, because Jolly’s preliminary examination testimony was made 

under oath and he was subject to cross-examination, the testimony was admissible as substantive 

evidence under MRE 801(d)(1)(A). 

The trial court instructed the jury as follows: 

If you believe that a witness previously made a statement inconsistent with 

his or her testimony at this trial, the only purpose for which that earlier statement 

can be considered by you is in deciding whether the witness testified truthfully in 

court. The earlier statement is not evidence that what the witness said earlier is 

true. 

Evidence has been offered that one or more of the witnesses in this case 

previously made statements inconsistent with their testimony at this trial. You may 

consider such earlier statements in deciding whether the testimony at this trial was 

truthful and in determing [sic] the facts of the case. 

The trial court’s instructions allowed the jury to consider Jolly’s prior testimony as substantive 

evidence. To the extent that the court’s instructions failed to distinguish between Jolly’s prior 

inconsistent police statements and prior inconsistent testimony under oath, defendant has not 

demonstrated that his substantial rights were affected because (1) it is undisputed that Jolly gave 

prior testimony under oath that properly could be considered as substantive evidence, (2) defendant 

does not explain how Jolly’s prior inconsistent police statements materially differed from his prior 

inconsistent preliminary examination testimony, and (3) defendant has not identified any part of 

the prosecutor’s closing argument that misrepresented which of Jolly’s prior inconsistent 

statements could be considered as substantive evidence. Further, because Jolly’s statements under 

oath properly could be considered as substantive evidence, and defendant has not identified any 

portion of the prosecutor’s closing argument that misrepresented which of Jolly’s prior 

inconsistent statements could be considered as substantive evidence, there is no basis for 
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concluding that defense counsel was ineffective for failing to object to the prosecutor’s closing 

argument. 

II. DEFENDANT’S STANDARD 4 BRIEF ON APPEAL

A. JUDICIAL ERROR OR MISCONDUCT

Defendant argues that he was denied a fair trial because of judicial misconduct that pierced 

the veil of judicial impartiality. Although defendant frames this issue as one of judicial 

misconduct, he only challenges the trial court’s legal rulings. He does not argue that the trial 

court’s conduct created an “appearance of advocacy or partiality against a party.” See People v 

Stevens, 498 Mich 162, 171; 869 NW2d 233 (2015). His claims of judicial misconduct are more 

properly characterized as claims of judicial error. Further, to the extent that defendant did not 

object at trial to the rulings that he challenges on appeal, our review is limited to plain error 

affecting defendant’s substantial rights. Carines, 460 Mich at 763-764. 

Defendant first argues that the trial court erred by not ordering that Roberson and Jolly, 

who were serving sentences with the Department of Corrections, both continue to be held in the 

county jail after they testified, should defendant want to recall either of them. We disagree. 

After Roberson finished testifying, defense counsel asked that he continued to be held in 

the local jail should counsel wish to recall him. The trial court denied the request and released 

Roberson to the Department of the Corrections. Defense counsel made a similar request after Jolly 

finished testifying. The court agreed to hold Jolly overnight should defendant want to recall him, 

but defendant never did so. 

The record does not support defendant’s argument that the trial court erred by releasing 

Roberson to the Department of Corrections after he finished testifying. Defense counsel did not 

offer any reason for needing to recall Roberson other than “one never knows.” Although defendant 

argues that the trial court’s ruling deprived him of his right to confront his accusers, that argument 

is without merit because defendant was afforded the opportunity to cross-examine both witnesses 

at trial. Moreover, both witnesses had previously testified at the preliminary examination, so 

defense counsel should have been prepared for their testimony. Under these circumstances, and 

because defendant was unable to provide any particularized need to recall either witness, the trial 

court did not err by releasing the witnesses to the Department of Corrections. 

Within this issue, defendant also again challenges the admissibility of Roberson’s prior 

statement to his mother. As explained earlier, the trial court did not abuse its discretion by allowing 

that evidence. Also, defense counsel was allowed to cross-examine Roberson about his prior 

statement during Roberson’s testimony. Defendant also questions whether Roberson’s statement 

to his mother was voluntarily made, but because the statement was not the product of police 

questioning, it was not subject to exclusion as an involuntary confession or statement. See People 

v Reed, 393 Mich 342, 355-356; 224 NW2d 867 (1975)

Defendant also claims that the trial court erred by instructing the jury on aiding or abetting, 

but he does not explain why the instruction was improper or did not apply. Based on defendant’s 

citation to the record, he appears to be challenging the trial court’s decision not to give an 
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instruction on “mere presence” as part of the aiding or abetting instructions. The trial court 

declined to give that instruction because the evidence did not support it. 

The standard instruction on aiding or abetting does not include a “mere presence” element. 

See M Crim JI 8.1. The mere presence instruction is found at M Crim JI 8.5. The prosecution’s 

witnesses testified that defendant was an active participant in the offense. Conversely, defendant 

and Jolly testified that defendant was not involved or present. Thus, there was no factual basis for 

concluding that defendant was present during the offense, but did not participate. A trial court is 

not required to give a requested instruction that is not supported by the evidence. People v Mills, 

450 Mich 61, 81; 537 NW2d 909 (1995), modified 450 Mich 1212 (1995). Because there was no 

evidence to support a jury finding that defendant was present, but did not participate in the offense, 

the trial court did not err by declining to give the mere presence instruction. 

B. PROSECUTORIAL MISCONDUCT

Next, defendant argues that the prosecutor’s conduct denied him a fair trial. Because 

defendant did not object at trial to any of the conduct that he now challenges on appeal, these 

claims are unpreserved. Review of an unpreserved claim of prosecutorial misconduct “is limited 

to whether plain error affecting substantial rights occurred.” People v Abraham, 256 Mich App 

265, 274-275; 662 NW2d 836 (2003). This Court will not reverse if the prejudicial effect of the 

prosecutor’s conduct could have been cured by a timely instruction from the trial court. People v 

Williams, 265 Mich App 68, 70-71; 692 NW2d 722 (2005), aff’d 475 Mich 101 (2006). 

Claims of prosecutorial misconduct are decided case by case and the challenged conduct 

must be viewed in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). 

The test for prosecutorial misconduct is whether defendant was denied a fair trial. People v 

Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Defendant argues that the prosecutor 

made several statements during closing argument that were not supported by the evidence, and 

also improperly vouched for Smith’s credibility. We disagree. 

A prosecutor is afforded great latitude during closing argument. A prosecutor may not 

make a statement of fact that is unsupported by the evidence, but he is permitted to argue the 

evidence and reasonable inferences arising from the evidence in support of his theory of the case. 

Bahoda, 448 Mich at 282; People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003). 

A prosecutor is not required to phrase his or her arguments in the blandest of terms, but may use 

“hard language” when the evidence supports it. Bahoda, 448 Mich at 282; People v Ullah, 216 

Mich App 669, 678; 550 NW2d 568 (1996). It is improper for a prosecutor to express personal 

knowledge or a personal belief regarding the credibility of a witness, or to vouch for the credibility 

of a witness by implying some special knowledge about the witness’s truthfulness. Bahoda, 448 

Mich at 276; People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 (2011); People v Thomas, 

260 Mich App 450, 455; 678 NW2d 631 (2004). But a prosecutor may comment on a witness’s 

credibility and argue from the evidence that a witness is credible. Id. 

The prosecutor did not misstate the evidence when he stated that it was undisputed that 

defendant had received a telephone call from Raptis to purchase drugs. Defendant admitted that 

he borrowed his uncle’s phone and phone records showed that Raptis called his uncle’s number. 

Defendant also admitted selling drugs to Raptis, but he could not remember if he sold the drugs 
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on the night of the offense or the previous night. Even though defendant was unsure of the date 

when he last sold drugs to Raptis, it was undisputed that Raptis was in the area to purchase drugs 

just before he was robbed and shot, and it was also undisputed that Raptis called the telephone that 

defendant admitted using that night. Accordingly, there was no plain error. 

The evidence also supported the prosecutor’s argument that defendant spoke to Roberson 

on the night Raptis was robbed, and that Roberson understood that defendant was telling him to 

rob Raptis when defendant remarked “there’s money on the floor” while Raptis was present at the 

house to purchase drugs. Roberson admitted that defendant did not directly tell him to rob the 

victim or take his money, but Roberson also denied that it was his idea to rob the victim and he 

testified that he understood what defendant meant by his statement—that he should take the 

victim’s money. Accordingly, the prosecutor’s argument was not improper. 

We also reject defendant’s argument that the prosecutor improperly argued that defendant 

could be connected to the murder weapon because defendant sold drugs across the street from the 

vacant house where the weapon was found. Defendant testified that he was familiar with the 

particular handgun because it was used by persons who sold drugs in the area, and the evidence 

showed that defendant sold drugs in that area. Defendant also admitted that he had previously 

handled the gun. Given this evidence, the prosecutor’s argument was not improper. 

Defendant also claims that the prosecutor improperly argued that the DNA evidence proved 

that defendant touched the murder weapon, even though defendant’s DNA was not found on the 

weapon. Defendant misconstrues the prosecutor’s argument. The defense argued that the absence 

of defendant’s DNA on the gun proved that he did not shoot the victim. However, DNA associated 

with defendant’s uncle was found on the gun’s trigger, but not on the handle. The prosecutor used 

this evidence to explain that the lack of defendant’s DNA did not prove that he could not have 

touched the gun, as the defense claimed. Again, defendant has not demonstrated that the 

prosecutor’s argument was improper. 

Defendant also argues that the prosecutor erroneously stated that Roberson identified the 

shooter as defendant in his conversation with his mother. Defendant notes that during that 

conversion, Roberson identified the shooter as “Poo” or “Pooh,” whereas defendant’s nickname 

was “Pookie.” It was reasonable for the prosecutor to infer that “Poo” or “Pooh” was a shorthand 

reference to “Pookie,” which was defendant’s nickname, and therefore, Roberson was implicating 

defendant in his statement. 

Defendant next argues that the prosecutor improperly theorized that defendant sold drugs 

to the victim, given that Jolly was also selling drugs on Manning Street just before the robbery and 

shooting. Defendant argues that his connection to selling drugs was then used to show that he had 

access to the gun that was used to shoot the victim. Given Roberson’s testimony, as well as 

defendant’s own testimony, there was ample evidence that defendant had access to the gun used 

in the shooting, which was used by persons who sold drugs. Roberson also testified that defendant 

informed him that the victim had money because defendant had sold drugs to the victim on the 

night of the robbery. While Smith testified that he referred Raptis to Jolly to purchase drugs, 

because there was other evidence supporting the prosecutor’s theory that it was defendant who 

sold the drugs, and then planned and participated in the robbery with Roberson and Jolly, the 

prosecutor’s argument was not improper.
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Defendant also argues that the prosecutor improperly argued that defendant’s contact with 

Jolly just before Jolly testified explained why Jolly recanted his earlier testimony. Although 

defendant argues that the prosecutor played on the jury’s emotions by suggesting that defendant 

was a dangerous person, the prosecutor merely asked the jury to consider the circumstances of 

Jolly’s confinement with defendant in jail to determine if it explained why Jolly recanted his prior 

statements and testimony. The prosecutor’s remarks were properly based on the evidence and 

reasonable inferences arising therefrom. 

Defendant next argues that the prosecutor misrepresented the testimony of the DNA expert 

when cross-examining defendant. However, defendant made it apparent that he disagreed with the 

prosecutor’s question. Thus, there is no reason to conclude that the question improperly influenced 

the jury. Moreover, the trial court instructed the jury that “[t]he lawyers’ statements and arguments 

are not evidence,” “[y]ou should only accept things the lawyers say that are supported by the 

evidence,” and that “[t]he lawyers’ questions to the witnesses . . . also are not evidence.” These 

instructions were sufficient to protect defendant’s substantial rights.

Finally, we reject defendant’s argument that the prosecutor improperly vouched for 

Smith’s credibility. The prosecutor did not suggest that he had some special knowledge that 

Smith’s testimony was truthful. Rather, the prosecutor’s remarks were based on the evidence and 

reasonable inference drawn therefrom, which the prosecutor properly could argue showed that 

Smith was credible. Thomas, 260 Mich App at 455. 

In sum, defendant has not demonstrated that any of the challenged comments or conduct 

by the prosecutor were improper. 

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues that he did not receive the effective assistance of counsel at trial. 

Because defendant did not raise this issue in an appropriate motion or request for an evidentiary 

hearing in the trial court, our review is limited to errors apparent from the record. People v 

Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). 

Defendant first complains that defense counsel did not call defendant’s uncle to question 

him about his cell phone. Decisions regarding what evidence to present and whether to call 

witnesses are presumed to be matters of trial strategy. People v Horn, 279 Mich App 31, 39; 755 

NW2d 212 (2008). Counsel’s failure to a call a witness is only considered ineffective assistance 

if it deprives the defendant of a substantial defense. People v Russell, 297 Mich App 707, 716; 

825 NW2d 623 (2012). A substantial defense is one that could have affected the outcome of the 

trial. People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). Defendant presumably 

believes that his uncle would have testified that the victim called defendant’s uncle on the night of 

the offense, not defendant. However, defendant has not provided any evidence or other offer of 

proof showing what testimony his uncle would have provided. Without an appropriate offer of 

proof, defendant cannot demonstrate that counsel’s failure to call defendant’s uncle deprived 

defendant of a substantial defense. 

Next, defendant argues that counsel was ineffective for not producing telephone records to 

verify whether defendant and Roberson discussed that the victim had cash on him when he arrived 
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to purchase drugs. According to Roberson, this conversation occurred when he was outside the 

house where defendant sold drugs, and where Roberson had just purchased marijuana. Because 

the testimony indicated that this conversation took place in person, there was no reason for counsel 

to request any telephone records. 

Defendant also complains that defense counsel allowed the prosecutor to argue that only 

defendant was selling drugs on the night of the offense and thus only he would have had access to 

the communal gun used by the drug dealers in the area. As discussed earlier, Roberson’s testimony 

and defendant’s testimony provided ample support for a finding that defendant had access to the 

gun that was commercially used by the persons who sold drugs. Roberson testified that defendant 

informed him that the victim had money because defendant had sold drugs to the victim that night. 

While Smith testified that he referred Raptis to Jolly to purchase drugs, there was other evidence 

that supported the prosecutor’s theory that it was defendant who sold the drugs, planned the 

robbery of Raptis, and then participated in the offense with Roberson and Jolly. Defendant has 

not identified a legal basis on which counsel could have objected to Roberson’s account to allow 

the jury to find that only Jolly sold drugs. To the extent that there was conflicting testimony 

regarding who sold drugs on the night of the offense, it was up to the jury to resolve that conflict. 

It would have been futile for counsel to object merely because defendant disagreed with some of 

the testimony presented. Counsel was not ineffective for failing to make a futile objection. People 

v Knapp, 244 Mich App 361, 386; 624 NW2d 227 (2001). 

Defendant also argues that defense counsel was ineffective for not objecting to the 

prosecutor’s arguments discussed supra. We have concluded, however, that the prosecutor’s 

arguments were not improper. Therefore, counsel was not ineffective for failing to object. Any 

objection would have been futile. Id.

Defendant also claims that defense counsel was ineffective for requesting a jury instruction 

on aiding or abetting. According to defendant, counsel “snuck” that instruction in after the trial 

court had refused to give the instruction. The record does not support this argument. The trial 

court ruled that it intended to instruct the jury on aiding or abetting, but declined defense counsel’s 

request to give an instruction on mere presence because the evidence did not support it. Although 

defense counsel requested the mere presence instruction, he did not ask the court to instruct the 

jury on aiding or abetting. The record does not support defendant’s claim that the instruction was 

given at defense counsel’s request. 

Finally, defendant complains that defense counsel’s trial strategy was ineffective because 

counsel did not focus on Smith or Jolly as the suspects in this shooting. The record before us does 

not support this claim. During closing argument, counsel noted the inconsistences in the witness 

testimony, but highlighted that the evidence established Jolly’s presence at the scene because he 

left a flip-flop there with his DNA on it, whereas there was no evidence that defendant’s DNA was 

at the scene. Counsel further argued that Smith was related to Jolly, it was Smith who “actually 

starts everything here,” and Smith was “going to protect Jolly” and “[t]hat’s exactly what he did.” 

Defendant does not explain what counsel should have done differently, or what other evidence he 

should have presented.
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Affirmed. 

/s/ Kathleen Jansen

/s/ Patrick M. Meter

/s/ Thomas C. Cameron