PEOPLE OF MI V LAVERNE JENKINS

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED April 11, 1997 Plaintiff-Appellee, v No. 187217 Kalamazoo Circuit Court LC No. 94-001119-FH LAVERNE JENKINS, Defendant-Appellant. Before: Hoekstra, P.J., and Murphy and Smolenski, JJ. PER CURIAM. Defendant was convicted by a jury of assault with intent to do great bodily harm, MCL 750.84; MSA 28.279, arising out of an incident in which defendant’s girlfriend was severely beaten in the home in which she was living with defendant. Defendant pleaded guilty to being an habitual offender, third offense, and was sentenced to a term of eight to twenty years’ imprisonment. He appeals as of right. We affirm. I Defendant first argues that the trial court erred in allowing testimony regarding his criminal record and other bad acts. Because defendant failed to object below, this Court will review this issue only if there was a plain error which could have been decisive of the outcome. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). In this case, there was a pretrial ruling that defendant’s criminal record be excluded; however, defendant argues that the trial court had an additional duty to intervene in the trial proceedings and exclude certain bad acts evidence and cites People v Ullah, 216 Mich App 669; 550 NW2d 568 (1996), in support of his argument. This Court in Ullah held that where the prosecutor introduced certain highly prejudicial statements which should have been excluded under MRE 404(b) and the error was not harmless, the defendant was denied a fair trial. Id., 673-674, 676, 686. However, we find Ullah distinguishable from the present case for three reasons. -1­ First, the challenged statements in Ullah were solicited by the prosecutor asking about specific events related to the defendant’s prior bad acts, whereas the present case involved unresponsive witness testimony. Second, the defense attorney in Ullah objected to the prejudicial statements. No objections were made in the present case. Finally, the prejudicial nature of the testimony was far more extreme in Ullah than the present case, because the outcome in Ullah turned primarily on a credibility contest and the complainant referred numerous times to a prior incident of serious abuse by the defendant. In the present case, defendant did not testify, the witness’ references to prior bad acts were not highly prejudicial in nature, and defendant failed to show that he was actually prejudiced by any of the statements. From our review of the evidence in this case, we find no plain error which warrants our review of this nonconstitutional unpreserved issue. II Next, defendant argues that several instances of prosecutorial misconduct denied him a fair trial. We disagree. Defendant first argues that the prosecutor improperly exceeded the scope of the trial court’s order that excluded evidence of defendant’s criminal record by intentionally eliciting evidence of prior bad acts and defendant’s parole status. Because defendant did not object to the prosecutor’s conduct at trial, our review is precluded unless a timely instruction could not have cured the error or there would be a miscarriage of justice if this Court failed to review the issue. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). Because the prosecutor did not intentionally elicit the improper comments from the witness, and the improper comments that did come in could have been cured with a timely instruction, defendant is unable to demonstrate either that misconduct occurred or that prosecutor misconduct denied him a fair trial. People v Legrone, 205 Mich App 77, 82; 517 NW2d 270 (1994). People v Alten, 201 Mich App 98, 104; 505 NW2d 869 (1993). Defendant next argues that the prosecutor improperly evoked sympathy for the victim in her opening and closing remarks. However, although the statements complained of may, at first glance, appear to appeal to the jury’s sympathy, when viewed in context, we conclude that that was not the prosecutor’s intent. Further, had defendant objected to the statements, any possibility of prejudice would have been cured by a timely instruction that the jury should disregard sympathy for the victim in its decision. Because the trial court later so instructed the jury, we conclude there will be no miscarriage of justice in failing to review this issue. Defendant next argues that the prosecutor improperly shifted the burden of proof by stating in opening argument that defendant had to defend against the information charged. Viewing the comments in context, we again find no miscarriage of justice in our failure to review because the prosecutor’s comment did not convey to the jury that defendant must present a defense. People v Dixon, 217 Mich -2­ App 400, 407; 552 NW2d 663 (1996). Further, any possibility of error could have been corrected by a timely instruction. Defendant also argues that the prosecutor shifted the burden of proof in rebuttal by stating that there was no evidence to the contrary that defendant was the person who committed the crime. However, defendant put identity at issue in this case, and where a defendant explicitly or implicitly advances a theory of the case that, if true, would exonerate him, it is not a shift of the burden for the prosecutor to comment on that theory. People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). Finally, defendant argues that the prosecutor argued facts not in evidence in closing argument when comparing defendant’s treatment of the victim to being treated like a dog and when referring to the victim being in shock. The victim did testify at trial that defendant repeatedly kicked her and spat on her and that she was “not treated like a human at all.” The prosecutor is free to relate the facts adduced at trial to her theory of the case and to argue the evidence and all reasonable inferences arising from it to the jury. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). It appears from the record that when referring to the victim being treated like a dog, the prosecutor was arguing the reasonable inferences from the witness’ testimony to prove the theory that defendant was guilty of assault with intent to do great bodily harm. Further, when viewed in context, the prosecutor’s statement that the victim was in shock appears to have been a figurative use of the term “shock,” explaining that the witness’ inconsistent statements may have resulted from the fact that she was not able to clearly perceive what was happening because she was so severely beaten. It is proper for a prosecutor to argue from the facts whether a witness is believable. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). We conclude that the prosecutor’s comments were proper in context. In sum, defendant failed to object to any of the alleged instances of prosecutorial misconduct, and no miscarriage of justice will result from this Court’s decision to decline review of this issue. III Defendant next argues that he was denied effective assistance of counsel by trial counsel’s failure to object to the admission of bad acts testimony and failure to object to instances of prosecutorial misconduct. Defendant again relies on this Court’s holding in Ullah, supra, to support his claim of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, defendant must show that his trial counsel’s performance was deficient under an objective standard of reasonableness and that the deficiency resulted in prejudice to the defendant in the outcome of the case. Ullah, supra, 684. Counsel’s performance is assessed without the benefit of hindsight. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995). This Court in Ullah found that the defendant was denied effective assistance of counsel by his trial counsel’s failure to object to the admission of bad acts testimony which was highly prejudicial to the defendant. Ullah, supra, 685. This Court stated that the admitted testimony “was so substantial that it could have changed the outcome” in such a trial which involved a “credibility contest.” Id., 686. Such -3­ highly prejudicial and outcome determinative evidence was not admitted in defendant’s case. The challenged statements made by the complainant in this case did not seriously undermine any defense theory proffered by defendant, and because defendant did not testify, the testimony did not prejudicially affect defendant’s credibility. Defendant complains of one inadvertent statement in which the complainant described a prior incident of defendant slapping her; however, she specifically distinguished that incident from the charged offense and did not present it as indicative of defendant’s character. Further, the other statements to which defendant objects dealt primarily with defendant’s criminal record and his parole status, issues which go to a defendant’s credibility. Because defendant did not testify and the statements were vague as to defendant’s criminal history, he has failed to show that he was prejudiced in the outcome of the case. Finally, defendant has failed to overcome the presumption of effective assistance. Stanaway, supra, 687. Any objection to the witness’ testimony may have only highlighted any prejudicial nature of her comments. We will not substitute this Court’s judgment for that of counsel regarding matters of trial strategy. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987). Defendant also argues that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct. Defendant specifically argues that his case turned on a “credibility contest” involving his word against the victim’s and that failure to object to the prosecutorial misconduct resulted in prejudice to defendant in the outcome of the case. We disagree. As stated above, defendant chose not to testify in his own behalf and the case therefore was not a typical credibility contest. Defendant was not impeached by any of the challenged witness’ statements and defendant failed to show how the statements resulted in prejudice to him. Further, the statements of which defendant complains were unsolicited by the prosecutor and the prosecutor redirected the witness; therefore, it would likely have been sound trial strategy to refrain from objection and avoid highlighting their importance to the jury. We conclude that defendant has failed to show either that his trial counsel’s performance was deficient or that he was prejudiced in the outcome of the case as the result of any alleged deficiency by counsel. IV Defendant next argues that the trial court abused its discretion in admitting improper hearsay testimony. Again, we disagree. The decision whether to admit evidence is within the sound discretion of the trial court and we will not disturb that decision absent an abuse of discretion. People v Phillips, 217 Mich App 489, 497; 552 NW2d 487 (1996). Defendant objected at trial to a police officer’s testimony regarding statements made by the victim immediately after the police arrived at the home. The statements were properly admissible under the excited utterance exception to hearsay, MRE 803(2). The excited utterance exception requires that a statement arose out of a startling event, was made before there was time for contrivance or -4­ misrepresentation by the declarant, and related to the circumstances of the startling event. People v Kowalak (On Remand), 215 Mich App 554, 557; 546 NW2d 681 (1996). Defendant argues that too much time had passed for the statements to fit within the exception. However, our Supreme Court has held that the issue is whether the declarant was still under the stress of the startling event, People v Straight, 430 Mich 418, 425; 424 NW2d 257 (1988), and such circumstances were present in this case. Although the victim’s statements were made approximately sixteen hours after the startling event occurred, other factors were present which would indicate she was still under the stress of the event. The victim had been beaten for a period of two-and-a-half hours, was unable to move when the police arrived, and was still in severe pain. Further, the victim continued to be in fear of defendant until he left the house, and she called the police soon thereafter. We will not find an abuse of the trial court’s discretion in admitting the statements unless an unprejudiced person, considering the facts on which the trial court acted, would say there is no justification or excuse for the ruling made. People v McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994). Given the circumstances stated above, we conclude that the trial court did not abuse its discretion in overruling defendant’s hearsay objection. V Finally, defendant argues that, even if each of the alleged errors did not individually rise to the level of error requiring reversal, the cumulative effect of errors denied defendant a fair and impartial trial. We disagree. Although due process does not require that a trial be perfect and without irregularities, the total weight of errors at trial may constitute imperfection to the point of violating due process. People v Rosales, 160 Mich App 304, 312-313; 408 NW2d 140 (1987). Defendant argues that such circumstances are present in this case because the alleged errors diminished his credibility in a case that was decided on the basis of a credibility contest. However, as discussed above, defendant did not testify and has failed to show how he was prejudiced by any of the alleged errors. We conclude that defendant was not denied a fair trial. Affirmed. /s/ Joel P. Hoekstra /s/ William B. Murphy /s/ Michael R. Smolenski -5­

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