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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 19, 2015

v No. 317919 Kalamazoo Circuit Court FLOYD ELLIOTT KOHN, LC No. 2012-000109-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and B ORRELLO and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of operating or maintaining a metha mphetamine laboratory, MCL 333.7401c(2)(f), but acquitted him of unlawfully using a mo tor vehicle, MCL 750.414. Defendant’s conviction stems from the discovery of a “one-pot m eth lab” made from a two-liter bottle under the passenger seat in which defendant sat at the t ime of an investigatory vehicle stop. Defendant raises several challenges on appeal, none of w hich merit relief. We therefore affirm.

I. BACKGROUND

On the evening of September 24, 2011, Kalamazoo police officer s pulled over a pickup truck because its owner had reported it stolen. Defendant was sitting in the passenger seat. After removing the occupants from the vehicle, the officers conducted a vehicle search. Under the passenger seat, they discovered a two-liter plastic bottle cont aining a suspicious liquid. The officers believed the bottle contained methamphetamine that was in the process of being “cooked.” Such bottles build up intense pressure and need to b e carefully ventilated. The officers therefore requested the assistance of specially traine d officers to handle the substance. After securing the bottle, a sample was taken. Later testing r evealed the presence of methamphetamine.

All three passengers of the pic kup truck were taken into custo dy at the scene. At the police station, defendant sat in the booking area next to fello w arrestee, Thomas Peffley. An officer noted that Peffley, defe ndant’s then-boyfriend, was whi spering to defendant. Defendant then rose and approached an officer. He stated his desire to g o on “the record now.” The officer informed defendant that video surveillance was activated in the room and could record any statements. Defendant then indicated, “I just want to go on re cord and tell you that it’s mine.” The officer asked for clarifi cation and defendant asserted, “Th e lab, everything it’s mine.”-2- II. OPINION TESTIMONY

Defendant contends that the pr osecutor improperly elicited, an d witnesses Officer Bryan Martin and Officer David Miller improperly expressed, opinions regarding his guilt. Defendant failed to preserve these challenges through timely objections. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). Our review is the refore limited to plain error affecting defenda nt’s substantial rights. People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011); People v Ackerman , 257 Mich App 434, 448; 669 NW2d 818 (2003).

The issue of a defendant’s guilt or innocence is a question fo r the jury to resolve. People v Suchy , 143 Mich App 136, 149; 371 NW2d 502 (1985). Thus, a witness may not express an opinion on the defendant’s guilt or innocence of the charged cr ime. People v Heft , 299 Mich App 69, 81; 829 NW2d 266 (2012).

Here, Officer Martin testified that defendant came to the coun ter in the booking area and told him that the meth lab found in the pickup truck belonged t o him. Martin explained that the police suspected that the meth lab belonged to defendant becaus e it had been found under defendant’s seat. Martin further described that defendant’s ea rlier invocation of his Miranda 1 rights and refusal to speak about the meth lab “cemented” in th e officer’s mind that defendant was the individual in possession of the contraband. Martin tes tified that defendant’s police station statement surprised him, and he wondered why a person, if innocent, would admit to such a grave crime. This testimony was clearly inadmissible because it constituted an opinion on defendant’s guilt. Contrary to the prosecution’s contentions, this evidence did not explain any steps in the investigation. Cf Heft , 299 Mich App at 81-83.

Additionally, Officer Martin’s comment regarding defendant’s i nitial post- Miranda silence was plainly erroneous. E very person subject to interro gation while in police custody must be given Miranda warnings. People v Shafier , 483 Mich 205, 212; 768 NW2d 305 (2009). If a person remains silent after hearing the warnings, his silence may not be used as evidence against him. Id. Martin testified that he suspected that the meth lab belonged to defendant because defendant refused to talk about it after Miranda warnings were given. This was an improper use of defendant’s post- Miranda silence as evidence against him.

However, Officer Martin’s improper testimony did not affect de fendant’s substantial rights. Although defendant initi ally remained silent about the meth lab after receiving Miranda warnings, he subsequently broke his silence. In the booking ar ea, defendant made a clear, unambiguous, and unsolicited statement to the officer that the meth lab belonged to him. The statement was corroborated by the fact that the contraband was found under the seat where defendant had been sitting. A rea sonable jury could readily co nclude that a defendant would not admit to a crime he did not commit, particularly under the circ umstances presented here. Accordingly, Officer Martin’s im proper testimony did not affect the outcome of defendant’s trial. See People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999).

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-3- Officer Miller’s testimony was not improper, however. Officer Miller indicated that he did not search for fingerprint evidence on the bottle. When as ked for an explanation of this decision on redirect examination, Miller testified, in part, th at the “suspects were caught redhanded” and that a meth lab is “a lmost always” the object of a conspiracy. A witness should be permitted to explain on redirect examination an answer given on cross-examination. People v Babcock , 301 Mich 518, 529; 3 NW2d 865 ( 1942). A “[d]efendant cannot complain of admission of testimony which defe ndant invited or instigated.” People v Whetstone , 119 Mich App 546, 554; 326 NW2d 552 (1982). Accordingly, defendant cann ot complain of the alleged improper testimony that Miller gave on redirect examination. E ven if Miller opined on defendant’s guilt, the testimony was not plainly erroneous.

We further reject defendant’s c ontention that the prosecutor e ngaged in misconduct in her questioning of these officers. Prosecutorial misconduct cannot be predicated on a good-faith effort to admit evidence. People v Abraham , 256 Mich App 265, 278; 662 NW2d 836 (2003). A prosecutor is entitled to attempt to introduce evidence that sh e legitimately believes will be accepted by the trial court. People v Noble , 238 Mich App 647, 660-661; 608 NW2d 123 (1999). Officer Martin’s challenged responses were given in re sponse to the following questions: “So does this investig ation take a new turn?” and “I mean were you surprised at the statement that he gave you?” Nothing in these questions sugges ts that the prosecutor was seeking an opinion regarding defe ndant’s guilt or a commentary on defendant’s post- Miranda silence. And, as noted, the pr osecutor’s questio ns to Officer Miller were a proper response to questions posed during cross-exam ination. Accordingly, we disc ern no grounds for relief.

Defendant also claims that defe nse counsel was ineffective forfailing to object to the testimony of Officers Martin and Miller. Our review is limited to mistakes apparent on the record as defendant failed to seek a new trial or an evidentiar y hearing on this issue. See People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). To establish an i neffective assistance claim, a defendant must show that counsel’s performance fell be low objective standards of reasonableness and that but for counsel’s deficient performance , there is a reasonable probability that the result of the proceedings would have been different. People v Uphaus (On Remand)
, 278 Mich App 174, 185; 748 NW2d 899 (2008).

Regarding Officer Martin’s testimony, defendant has failed to overcome the strong presumption that defense counsel ’s decision not to object was s ound trial strategy. People v Petri , 279 Mich App 407, 411; 760 NW2d 882 (2008). As previously no ted, the prosecutor’s questions seemed innocuous, althou gh Officer Martin provided im proper testimony in reply. Defense counsel may have chosen not to emphasize the informatio n in Officer Martin’s responses by foregoing an objection. See People v Bahoda , 448 Mich 261, 287 n 54; 531 NW2d 659 (1995) (“Certainly there are times when it is better not to object and draw attention to an improper comment.”). Moreover, relief is not warranted as coun sel’s decision to withhold objection did not likely alter th e result of defendant’s trial. In relation to Officer Miller’s testimony, any objection would ha ve been futile a s the witness merely provided an explanation of his cross-examination testimony elicited by defendant. Acco rdingly, counsel’s performance cannot be considered deficient. People v Fike , 228 Mich App 178, 182; 577 NW2d 903 (1998).

II. APPOINTMENT OF REP LACEMENT COUNSEL-4- Three months before trial, defense counsel moved to withdraw a s defendant’s appointed counsel, at defendant’s request , because she was campaigning fo r election in neighboring Barry County to serve as county prose cutor. Defendant challenges the trial court’s denial of this request, claiming that defense counsel’s bid for a prosecutoria l position created a conflict of interest. We review a trial cour t’s decision regarding the sub stitution of counsel for an abuse of discretion. People v Strickland , 293 Mich App 393, 397; 810 NW2d 660 (2011). An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. Id.

A defendant has a constitutional right to counsel. People v Meissner , 294 Mich App 438, 459; 812 NW2d 37 (2011). However, an indigent defendant is not entitled to the appointment of counsel of his choosing. Strickland , 293 Mich App at 397. “Appoint ment of substitute counsel is warranted only upon a showing of good cause and where substi tution will not unreasonably disrupt the judicial process. Good cause exists where a legiti mate difference of opinion develops between a defendant and his appointed counsel with regard to a fundamental trial tactic.” Id. (quotation omitted). A defendant’s right to counsel includes t he right to effective assistance of counsel. Meissner , 294 Mich App at 459. A defendant is denied effective assista nce if counsel had an actual conflict of intere st that affected counsel’s perf ormance. People v Smith , 456 Mich 543, 556; 581 NW2d 654 (1998).

In support of his claim, defendant relies on People v Davenport , 483 Mich 906; 762 NW2d 163 (2008), where the Supr eme Court stated:

A presumption of prejudice exists when a defendant’s former de fense counsel joins the prosecutor’s office that is pursuing the case against the defendant. MRPC 1.9(b), 1.10(b). Such a presumption may be ov ercome, however, if the prosecutor show s that the attorney who has a co nflict of interest was properly screened out from “a ny participation in the matter .” MRPC 1.10(b). . . . [ Id. ]

Davenport is distinguishable from the present case. Defense counsel neve r switched sides. She represented defendant throughout the course of the lower court proceedings. In addition, during her representati on of defendant, defense couns el was not associated with the Barry County prosecutor’s office. She was only running for ele ction. Accordingly, defendant’s reliance on Davenport is misplaced, and he fails to establish an actual conflict of i nterest. The trial court therefore acted w ithin its discretion in denying de fendant’s motion.

III. EVIDENCE OF PRIOR ARRESTS

Defendant also challenges as im proper the prosecutor’s decisio n to question him on the stand regarding his prior arrest s. Defense counsel objected to the prosecutor’s questions below, but on different grounds. As suc h, defendant’s appellate claim s are not actually preserved, People v Stimage , 202 Mich App 28, 30; 507 NW2d 778 (1993), and our review is a gain limited to plain error affecting defe ndant’s substantial rights. Ackerman , 257 Mich App at 448.-5- Generally, a witness may not be impeached with evidence of pas t arrests. People v Falkner , 389 Mich 682, 695; 209 NW2d 193 (1973). 2 In People v Layher , 464 Mich 756, 768; 631 NW2d 281 (2001), the Supreme Court limited the Falkner holding and held that “evidence of bias arising from past arrest without conviction is admissib le if relevant, as long as its probative value is not substantial ly outweighed by the danger o f unfair prejudice.” The Layher rule is not applicable to the pr esent case. Evidence of defend ant’s prior arrests was not offered to show any bias by defendant.

Nonetheless, by asking defendant about his prior arrests, the prosecutor did not engage in conduct amounting to plain error. Prosecutorial misconduct can not be predicated on a good-faith effort to admit evidence. Abraham , 256 Mich App at 278. A prosecutor may attempt to introduce evidence that she legitimately believes will be accep ted by the trial court. Noble , 238 Mich App at 660-661. In connection with testimony about his bo oking-area confession, defendant became flustered and exclaimed, “I’m sorry. This is my first time.” Based on this testimony, the prosecutor could have held a legitimate belief t hat defendant was claiming this was his first arrest, and that by making a false claim he opene d the door to challenge. People v Gibson , 71 Mich App 543, 547; 248 NW2d 613 (1976). Because the prose cutor was eliciting further explanation of defendant’s testimony on direct, it appe ars that the prosecutor’s questions about defendant’s prior arrest s were asked in good faith.

Even if the prosecutor’s questions were improper, the error di d not affect defendant’s substantial rights. After defendant admitted that he had previ ously been arrested for resisting arrest and shoplifting, defendant acknowledged that he had seve n convictions for shoplifting. Defendant does not challenge the admission of that evidence. A nd this evidence certainly weighed more negatively on defendant’s credibility.

IV. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises several challenges in an in pro per brief fil ed pursuant to Admin Order 2004-6 Standard 4. Defendant argues that his due process right s were violated by the trial court and this resulted in a cumulative effect of error. By failing to support the argument with citation to any legal authority, defendant has abandoned the issue and w e decline to address to it. See People v Kelly , 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“An appellantmay not merely announce his position and leave it to this Court to disc over and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.”). The remainder of d efendant’s challenges were not preserved by objection in the trial court. Our review is therefore limited to plain error af fecting defendant’s substantial rights, Carines , 460 Mich at 763.

Defendant argues that his conviction violated the Ex Post Fact o Clauses because it was obtained with “less than standardevidence.” US Const, art I, § 10 and Const 1963, art 1, § 10 both prohibit ex post facto laws. People v Callon , 256 Mich App 312, 316-317; 662 NW2d 501

2 MRE 609 does not allow a witness to be impeached with past arr ests. The rule applies only to the use of past convictions

. People v Layher , 464 Mich 756, 771; 631 NW2d 281 (2001).-6- (2003). Laws that violate the Ex Post Facto Clauses share two elements: (1) they attach legal consequences to acts done before their effective date, and (2) they work to the disadvantage of the defendant. Id. at 318. A law disadvantages a defendant if it allows the prose cutor to convict on less evidence. People v Slocum , 213 Mich App 239, 243; 539 NW2d 572 (1995). In this case, the prosecution did not attempt to retroactively apply an y law to defendant’s case. And defendant impliedly concedes t his point by failing to cite any such attempt.

Defendant asserts that evidence regarding the discovery of the meth lab in the vehicle was inadmissible because the jury acquitted him of unlawfully d riving away a vehicle, thereby establishing that the truck’s owner filed a false theft report. However, we are aware of no authority supporting the propositi on that a jury’s verdict dete rmines what evidence is admissible. Indeed, such a proposition is i llogical as a verdict is rendere d only after the jury hears the evidence. The court would therefo re require tarot cards to dis cern the admissibility of evidence.

Defendant claims that the prosecutor committed a wide range of misconduct. He challenges the prosecutor’s decision to wait until January 2012 , four months after his initial arrest, to levy charges against him. A prosecutor is the chief law enforcement officer of the county, People v Barksdale , 219 Mich App 484, 487; 556 NW2d 521 (1996), and is constitutionally entrusted with authority to charge defendants. People v Siebert , 450 Mich 500, 510; 537 NW2d 891 (1995) (opinion of B OYLE , J.). A “trial court’s authority over the discharge of a prosecutor’s duties is limited to those activities or deci sions by the prosecutor that are unconstitutional, illegal, or ultra vires.” People v Morrow , 214 Mich App 158, 161; 542 NW2d 324 (1995). Nothing in the record supports defendant’s suggest ions that the prosecutor’s decision to charge defendant was racially motivated or that the prosecutor decided to charge him because it was an election year. Contrary to defendant’s claim , the charges were never dropped against him. Rather, Officer David Boling testified that charg es were not brought against defendant until the laboratory report was received in December 2011, confirming that the substance in the bottle was meth.

Defendant argues that the prosecutor made improper remarks dur ing closing and rebuttal arguments. We agree that the prosecutor improperly argued that Officer Martin was a credible witness because he would not lie and jeopardize his career. Al though a prosecutor may argue from the facts that a witness is credible, People v Howard , 226 Mich App 528, 548; 575 NW2d 16 (1997), the prosecutor’s argument was not based on the facts . There was no testimony that Martin’s job would be placed in jeopardy if he lied. However, the improper remarks did not affect defendant’s substantial ri ghts. The trial court instruc ted the jury that it was to return a verdict based on the evidence and that its job was to determine the facts of the case, which included deciding which witnesses to believe. The trial court also instructed the jury that the evidence only included the sworn testimony, admitted exhibits, and anything else it was told was evidence. It did not include the lawyers’ statements and argum ents. A jury is presumed to follow its instructions. People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). The prosecutor’s improper remarks did not affect the outcome of def endant’s trial.

Defendant’s challenge to the prosecutor’s remark that “perfect cases do not go to trial” similarly does not warrant relief. A prosecutor’s remarks must be evaluated in light of defense arguments and the relationship they bear to the evidence admitt ed at trial. People v Brown , 279 Mich App 116, 135; 755 NW2d 664 (2008). The prosecutor’s remar ks acknowledged that,-7- because there was no video of defendant’s statement to Martin o r fingerprints on the meth lab, she had not presented a “perfect case.” The remarks were in re sponse to the defense theory that evidence of defendant’s guilt was lacking because there was no fingerprint or video evidence.

Additionally, defendant argues that he was denied his right to be present when the trial court ordered him to undergo a competency examination. “[D]efe ndants have the right to be personally present at every stage of the trial where their subs tantial rights may be affected by the proceedings and where their pres ence relates to the fullness of their opportunity t o defend against the charge.” People v Medcoff , 344 Mich 108, 115; 73 NW2d 537 (1955), overruled in part by People v Morgan , 400 Mich 527; 255 N W2d 603 (1977). Assuming, but without dec iding, that a defendant has the right to be present when a trial court hears and makes a decision on a request that a defendant undergo a competency examination, defendant is not entitled to relief. Injury is not presumed from a defendant’s every absence. Morgan , 400 Mich at 535; People v Buie (On Remand) , 298 Mich App 50, 59; 825 NW2d 361 (2012). The test for wheth er a defendant’s absence requires reversal of his conviction is whether there is any reasonable possibility that the defendant was prejudiced by his absence. Buie (On Remand) , 298 Mich App at 59. According to defendant, because the trial court ordered him to undergo a competency examination, and even though he was subsequently found competent to stand trial, he w as not accepted by the drug
court. 3 However, defendant makes no argument that, had he been presen t, the trial court would not have ordered him to undergo a competency examination. And, the record, which contains no information about defendant’s cond uct that led to the trial cou rt’s order, does not allow us to make that conclusion.

Defendant further asserts that the police engaged in inexcusab le neglect or deliberate deception because they did not conduct fingerprint analysis of the one-pot meth lab. A defendant has a due process right to obtain evidence in the possession of the prosecutor if it is favorable to him and material to guilt or punishment. People v Stanaway , 446 Mich 643, 666; 521 NW2d 557 (1994). However, “[f]or due process concerns, there is a c rucial distinction between failing to disclose evidence that has been developed and failing to dev elop evidence in the first instance.” People v Anstey , 476 Mich 436, 461; 719 NW2d 579 (2006). Police have no constitutional duty to assist a d efendant in developing potenti ally exculpatory evidence. Id. Accordingly, the police were under no duty to search the bottle for fingerprints, and defendant’s claim is meritless. See People v Stephens , 58 Mich App 701; 228 NW2d 527 (1975).

Finally, defendant argues that he is entitled to a new trial b ased on newly discovered evidence. He asserts that he has discovered since trial that h is name is not in the national and state databases for purchases for pseudoephedrine products, a p iece of evidence often relied upon in methamphetamine-related cases. A new trial may be granted o n the basis of newly discovered evidence. People v Rao , 491 Mich 271, 279; 815 NW2d 105 (2012). However, one require ment to support a new trial is that “the new evidence makes a differ ent result probable on retrial.”

3 This assertion is not supported by the record. At the hearing on the motion to withdraw, defense counsel told the trial court that the drug court reject ed defendant because of mental health reasons that gave rise to the competency examination.-8- People v Cress , 468 Mich 678, 692; 664 NW2d 174 (2003). Here, it is complete ly irrelevant whether defendant ever purchased any pseudoephedrine products; he was caught red-handed in the possession of a portable meth lab.

We affirm.

/s/ Jane M. Beckering /s/ Stephen L. Borrello /s/ Elizabeth L. Gleicher