PEOPLE OF MI V CURTIS CLINTON HOWARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 29, 1997
Plaintiff-Appellee,
v
No. 180226
Recorder’s Court
LC No. 94-002375
CURTIS CLINTON HOWARD,
Defendant-Appellant.
Before: Doctoroff, P.J., and MacKenzie and Griffin, JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549,
and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He
was sentenced to fifteen to forty years’ imprisonment for the murder conviction and two years’
consecutive imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.
Defendant was originally charged with first-degree murder, MCL 750.316; MSA 28.548, and
felony-firearm for the shooting death of Jennita Fields. At trial, defendant admitted to shooting the
victim, but there were conflicting accounts of the circumstances of the shooting. Defendant testified that
he shot the victim accidentally during a physical confrontation with the victim and others when his gun fell
and discharged after he was pushed by the victim. The prosecution’s witnesses, however, testified that
only defendant and the victim were arguing and that defendant shot the victim after she would not move
away from him.
I
Defendant first cites error with the prosecution’s rebuttal argument. Because this issue was not
raised below, it may be reviewed on appeal only if a curative instruction could not have remedied any
prejudicial effect or the failure to consider the issue would result in a miscarriage of justice. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
The prosecutor stated in his rebuttal argument that the victim was once a live human being and
that even if she was “fouled up” at the time of her death due to drugs and alcohol, the jury should not
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forget that she was a loving human being. The prosecutor also argued to the jury that the witnesses to
the shooting did not have a motive to lie.
While a prosecutor may not appeal to the jury’s sympathy, the prosecutor’s arguments here
were primarily responsive to the defense’s closing argument. For this reason, we do not find error with
the prosecutor’s closing argument. People v Messenger, 221 Mich App 171, 181; 561 NW2d 463
(1997); People v Modelski, 164 Mich App 337, 348; 416 NW2d 708 (1988). If there was error, it
was not egregious and it could have been cured with a cautionary instruction. Thus, reversal is not
required. Stanaway, supra.
Furthermore, the prosecutor did not personally vouch for his witnesses or place the prestige of
his office behind the witnesses. People v Stacy, 193 Mich App 19, 36-37; 484 NW2d 675 (1992).
Although defendant argues that the prosecutor improperly commented on defendant’s guilt, argued facts
that were not in evidence, and improperly raised new issues in his rebuttal argument, he has not
provided citations to the transcript where the above claimed errors occurred or explained the factual
basis for his arguments. The arguments are therefore abandoned on appeal. People v Sean Jones (On
Rehearing), 201 Mich App 449, 456-457; 506 NW2d 542 (1993).
II
Defendant next claims that his trial counsel was ineffective, although he failed to raise this issue in
the trial court. Moreover, this Court previously denied defendant’s motion to remand for an evidentiary
hearing. Our review is therefore limited to the current trial record. People v Wilson, 196 Mich App
604, 612; 493 NW2d 471 (1992). On the record available, we hold that defendant was not denied the
effective assistance of counsel.
To obtain relief due to the ineffective assistance of counsel, defendant must show that his
counsel’s performance fell below an objective standard of reasonableness, and that the representation
so prejudiced him that he was denied the right to a fair trial. People v Pickens, 446 Mich 298, 338;
521 NW2d 797 (1994).
Defendant cites error with his trial counsel’s failure to object to the prosecutor’s closing
argument. While counsel may have had grounds for objecting to the prosecutor’s rebuttal comments, at
most the trial court would have only given a cautionary instruction to the jury. Because the prosecutor’s
remarks were generally responsive to defendant’s closing argument, the remarks were not prejudicial to
defendant and he has not shown that his counsel’s error prejudiced his right to a fair trial.
Defendant also argues that his counsel coerced him into testifying at trial against his will. The
record does not support defendant’s claim. The record reveals that defendant and his attorney
disagreed on whether defendant should testify, but it is unclear what was defendant’s desire. Despite
the disagreement on strategy, defendant was fully advised that it was his decision to make regarding his
right to testify. Nothing in the record suggests that defendant was pressured to testify or that he was
reluctant to testify. There is no evidence that defendant abandoned a more viable defense in favor of
personally testifying. The record also does not support defendant’s claim that his trial attorney was
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ineffective for not objecting to the placement of a partition between defendant and the witnesses
throughout the trial. Rather, it appears that the diagram that blocked one witness’ view of defendant
was moved. Accordingly, defendant’s argument on these points is not supported by the record and
must fail.
Defendant further argues that his counsel did not adequately prepare for defendant to testify,
should not have continued to represent defendant due to illness, did not impeach a witness, abandoned
defendant’s motion for a directed verdict, and conceded defendant’s guilt. After reviewing the record,
we find no merit to these claims of error.
III
Defendant claims that the prosecutor placed a diagram in such a position that it served as a
partition between defendant and the testifying witnesses, thereby violating his right of confrontation. US
Const, Am VI; Const 1963, art 1, § 20. We disagree.
The only reference to a partition in the record was a brief comment by one witness who was
asked to identify defendant in the courtroom. The witness could not see defendant due to the placement
of a diagram. It appears that the diagram was moved during a recess. When the witness resumed
testifying, he was able to identify defendant in the courtroom and describe what defendant was wearing.
The record does not support defendant’s claim that he was denied his right to confront the witnesses
against him due to the presence of the partition. People v Burton, 219 Mich App 278, 287; 556
NW2d 201 (1996). Even if there was error here, it was harmless. People v Mack, 218 Mich App
359, 360, 364; 554 NW2d 324 (1996).
IV
Defendant next argues that he was coerced into testifying by his trial counsel in violation of his
constitutional rights. As discussed in Section II of this opinion, the record does not support defendant’s
claim that his counsel forced him to testify. Furthermore, there is nothing in the record to support
defendant’s claim that his counsel had not prepared for defendant to testify.
V
Defendant argues that there was insufficient evidence to support the jury’s verdict of second
degree murder or to submit the charge of first-degree murder to the jury. We disagree.
This Court reviews the sufficiency of the evidence to sustain a conviction not based on whether
there was any evidence to support the conviction, but whether the evidence was sufficient, when viewed
in a light most favorable to the prosecution, to justify a rational trier of fact in finding the defendant guilty
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 513-515; 489 NW2d 748 (1992),
amended 441 Mich 1201 (1992).
Viewed most favorably to the prosecution, the evidence presented at trial established that
defendant retrieved a gun from a car trunk before he followed the victim inside the house. While inside
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the house, defendant argued with the victim over money for a period of time and when the victim would
not move away from him, he shot her. There was no evidence from the prosecutor’s witnesses that the
victim physically threatened defendant. Defendant was near a door which he could have used to leave
the house. Further, enough time elapsed for defendant to have taken a second look before he pulled
out his gun and shot the victim. Thus, the charge of first-degree murder was proper since it was for the
jury to decide defendant’s state of mind. People v Anderson, 209 Mich App 527, 537; 531 NW2d
780 (1995).
The jury’s verdict of second-degree murder was also supported by sufficient evidence. The
evidence showed that defendant intentionally shot the victim when she would not get away from him and
that she did not pose a threat of physical harm to defendant. People v Bailey, 451 Mich 657, 669;
549 NW2d 325 (1996), amended on other grounds 453 Mich 1204 (1996).
VI
Next, defendant argues that the prosecutor abused his discretion in charging defendant with
first-degree murder because, at most, the facts only supported a charge of manslaughter. We find no
merit to defendant’s argument. The facts supported charging defendant with first-degree murder and
there was no abuse of the prosecutor’s charging discretion. People v Yeoman, 218 Mich App 406,
413; 554 NW2d 577 (1996).
VII
Defendant next contends that the trial court, the prosecutor, and his attorney all conspired to
convict him. This argument lacks merit. Nothing in the record suggests that the court and the attorneys
conspired against defendant.
VIII
Next, defendant cites error with the trial court’s failure to rule on his motion to reduce the
charges. Defendant also argues that the trial court did not follow the rule of stare decisis when ruling on
the motion. Defendant only requested a reduction in the charges as part of his motion for a directed
verdict. The trial court addressed the merits of the request to reduce the charge of first-degree murder
when ruling on defendant’s motion for a directed verdict. The trial court also properly denied the
motion on the law and facts of this case. Thus, the trial court did not err.
IX
Finally, defendant contends that the trial court did not instruct the jury on malice for the crimes
of first-degree and second-degree murder. We find no merit to defendant’s argument. A review of the
court’s instructions reveals that the court instructed the jury on the necessary intent to convict defendant
of either first-degree or second-degree murder. The jury was properly
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instructed on the intent elements of the charged offenses. People v Caulley, 197 Mich App 177, 184;
494 NW2d 853 (1992).
Affirmed.
/s/ Martin M. Doctoroff
/s/ Barbara B. MacKenzie
/s/ Richard Allen Griffin
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