PEOPLE OF MI V LAMARR MONSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 2, 1999
Plaintiff-Appellee,
v
No. 203770
Recorder’s Court
LC No. 96-001138
LAMARR MONSON,
Defendant-Appellant.
Before: Sawyer, P.J., and Bandstra and R. B. Burns*, JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549.
The court sentenced defendant to thirty to fifty years’ imprisonment. He now appeals and we affirm.
Defendant first argues that the trial court erred in denying his motion for judgment
notwithstanding the verdict because the verdict was against the great weight of the evidence. A trial
court’s denial of a motion for judgment notwithstanding the verdict is reviewed de novo by this Court.
Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 641; 579 NW2d 133
(1998). The evidence and all legitimate inferences are viewed in the light most favorable to the
nonmoving party. Phinney v Perlmutter, 222 Mich App 513, 524; 564 NW2d 532 (1997); People
v Duenaz, 148 Mich App 60, 65; 384 NW2d 79 (1985). If reasonable jurors could honestly have
reached different conclusions, neither the trial court nor this Court may substitute its judgment for that of
the jury. Pakideh v Franklin Commercial Mortgage Group, Inc, 213 Mich App 636, 639; 540
NW2d 777 (1995); Duenaz, supra at 65-66. This Court gives substantial deference to the trial court’s
conclusion that a verdict was not against the great weight of the evidence. Phinney, supra at 525.
Defendant contends that the prosecution failed to rebut beyond a reasonable doubt his claim of
self-defense. A defendant may act in lawful self-defense if he honestly and reasonably believes that he is
in imminent danger of death or serious bodily harm. People v Heflin, 434 Mich 482, 502; 456 NW2d
10 (1990). However, the defendant may not use force beyond that necessary to protect himself and he
must not be the initial aggressor. People v Kemp, 202 Mich App 318, 322-323; 508 NW2d 184
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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(1993). Once the defendant introduces evidence of self-defense, the burden shifts to the prosecutor,
who must disprove that defendant acted in self-defense beyond a reasonable doubt. People v
Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993).
Defendant made two conflicting statements to police. The first one was fully exculpatory. The
second one, taken the following morning, indicated that he had come home to the apartment early on the
morning of Crystal’s death, that she had been smoking marijuana, that she became irate and charged at
him with a knife, that he pushed her head through a window, that he hit her when she tried to pick up the
knife again, that she somehow did pick up the knife again and came at him with it, and that he pushed
her back, which caused the knife to stick her in the neck. He indicated that he did not attempt to cut or
stab Crystal, but that he only attempted to “push, hit or grab for her to defend [him]self.” He then left
the apartment and did not come back for four or five hours because he was intoxicated and he passed
out on the freeway.
Defendant’s statements do not comport with the evidence presented showing the brutality with
which the victim was murdered. The medical examiner testified that the wounds on the victim’s hands
were “defense wounds” tending to show that she was trying to fend off an attack. She had been
stabbed or cut eighteen times. Her lower jaw was broken and teeth were missing. Her left ear was
torn, and there were bruises all over her face and body. She had been strangled. There were abrasions
on the chest and a puncture wound which penetrated the heart. However, she did not die from any of
these injuries. Rather, she died from massive head injury, which, according to the medical examiner,
must have been caused by a “great force.” In killing another in self-defense, the defendant is not
entitled to use any more force than is necessary to defend himself. Kemp, supra at 322. The evidence
is certainly sufficient to show that defendant used more force than was necessary to defend himself
against a twelve-year-old, 113-pound girl.
Defendant also argues that the prosecutor misrepresented the testimony of his neighbor, Linda
Woods, by arguing to the jury that Woods saw defendant’s car on the morning of the murder. While
her testimony regarding what she had seen that morning was conflicting, she had previously told the
police that she had, in fact, seen defendant’s car leaving the parking lot at 7:30 a.m. It is the province of
the jury to determine questions of fact and to resolve all issues of credibility. People v Lemmon, 456
Mich 625, 637; 576 NW2d 129 (1998). Therefore, the jury was free to believe all, part, or none of
Woods’ testimony, and the prosecutor’s comments in this vein were not improper.
Viewing the evidence presented at trial in a light most favorable to the prosecutor, reasonable
jurors could have reached different conclusions about the meaning of the evidence, and there was ample
evidence to support the jury’s verdict. Therefore, we find that the verdict was not against the great
weight of the evidence, and the trial court’s denial of defendant’s motion for judgment notwithstanding
the verdict was proper.
Defendant next argues that the improper tactics employed by the prosecutor had the effect of
denying him a fair trial. Claims of prosecutorial misconduct are decided on a case-by-case basis.
People v Howard, 226 Mich App 528, 544; 575 NW2d 16 (1997). This Court must examine the
record and evaluate the prosecutor’s remarks in context. People v Green, 228 Mich App 684, 692
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693; 580 NW2d 444 (1998). Improper prosecutorial comments are grounds for reversal where they
deny the defendant a fair and impartial trial. Id. at 693.
Defendant contends that the prosecutor’s questions to Tawanna Crawford, his alibi witness,
improperly implied that Crawford had a duty to report the alibi information to the police prior to trial.
This argument is meritless. The credibility of an alibi witness may be attacked with cross-examination
and argument showing that the witness failed to come forward with the alibi account before trial.
People v Fuqua, 146 Mich App 250, 254-255; 379 NW2d 442 (1985). Furthermore, contrary to
defendant’s assertions, the prosecution is no longer required to lay any special foundation before doing
so. People v Phillips, 217 Mich App 489, 494; 552 NW2d 487 (1996). The credibility of the alibi
witness, regarding both the alibi account and the failure to come forward earlier with that account, is to
be determined by the jury. Id. at 496. Accordingly, the prosecutor’s cross-examination of Crawford
was not improper.
Defendant also argues that he was denied a fair trial by the prosecutor’s misstatement of the
evidence concerning whether Linda Woods saw defendant’s car on the morning of the murder. As
noted above, we disagree with defendant’s contention that the prosecutor mischaracterized Woods’
testimony.
Defendant further argues that the prosecutor improperly vouched for the credibility of the
prosecution witnesses by stating during closing argument that they had told the jury “what they
remember about the events of January the 20th of 1996 as best they can” and that they had been
“honest in telling” the jury that “they are admitted drug users.” Because no objection was made at trial,
nor any cautionary instruction requested, review of these allegedly improper comments is precluded
unless the misconduct was so egregious that no curative instruction could have removed the prejudice to
the defendant or if failure to consider the issue would result in a miscarriage of justice. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994); People v Paquette, 214 Mich App 336,
341-342; 543 NW2d 342 (1995).
A prosecutor may argue from the facts that a witness is credible, as long as there is no
implication that the prosecution had any special knowledge of the witness’ credibility. Howard, supra at
548. The mere statement of the prosecutor’s belief in the honesty of a witness’ testimony does not
constitute error requiring reversal if, as a whole, the remarks are fair. People v McElhaney, 215 Mich
App 269, 284; 545 NW2d 18 (1996). In any case, a prompt admonishment to the jury regarding its
role as factfinder would have cured any error. Id. Therefore, failure to review this issue will not result in
a miscarriage of justice.
Defendant next contends that he was denied the effective assistance of counsel. To establish
that his right to effective assistance of counsel was so undermined that it justifies reversal of an otherwise
valid conviction, defendant must show that counsel’s representation fell below an objective standard of
reasonableness and that the representation so prejudiced him as to deprive him of a fair trial. People v
Smith, 456 Mich 543, 556; 581 NW2d 654 (1998); People v Pickens, 446 Mich 298, 302-303; 521
NW2d 797 (1994). To find prejudice, a court must conclude that there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Pickens, supra at
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312. Furthermore, defendant must overcome the strong presumption that counsel’s actions constituted
sound trial strategy. Stanaway, supra at 687.
Because defendant failed to move in the trial court for a Ginther1 hearing or a new trial on the
basis of ineffective assistance of counsel, our review is limited to mistakes apparent on the record.
People v Plummer, 229 Mich App 293, 308; 581 NW2d 753 (1998). Therefore, we are unable to
address most of the errors alleged by defendant. Moreover, after carefully reviewing each of
defendant’s claims, we are satisfied that he has failed to establish that the challenged actions cannot
reasonably be attributed to trial strategy or that counsel’s actions detrimentally affected the outcome of
his trial. People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998).
Finally, defendant argues that his sentence of thirty to fifty years in prison, which exceeded by
five years the sentencing guidelines’ range, is disproportionate, and therefore the court abused its
discretion in sentencing him. We disagree.
Adherence to the sentencing guidelines is not mandatory, and departures are appropriate if the
guidelines “do not adequately account for important factors legitimately considered at sentencing.”
People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990). The trial court felt that the
guidelines were “in gross error,” considering the facts of the case. The victim was only twelve years
old. Defendant was having sex with her and was using her to sell drugs out of an abandoned apartment
building. She suffered an extremely violent death, having been thrown through a window, stabbed and
cut eighteen times, strangled, and beaten in the head with great force. Defendant left her to die and did
not return for several hours. Given the particular depravity with which this offense was committed, the
sentence was not disproportionate to the circumstances of the case. See People v Parrish, 216 Mich
App 178, 184-185; 549 NW2d 32 (1996).
Affirmed.
/s/ David H. Sawyer
/s/ Richard A. Bandstra
/s/ Robert B. Burns
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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