PEOPLE OF MI V JAMES EDWARD CHAMBERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 30, 1999
Plaintiff-Appellee,
v
No. 207250
Kalamazoo Circuit Court
LC No. 96 001177 FH
JAMES EDWARD CHAMBERS,
Defendant-Appellant.
Before: McDonald, P.J., and Sawyer and Collins, JJ.
PER CURIAM.
Defendant was charged with three counts of third-degree criminal sexual conduct, MCL
750.520d(1)(b); MSA 28.788(4)(1)(b). Following a jury trial, he was convicted on two counts and
acquitted on the third. The trial court sentenced defendant as an habitual offender, MCL 769.11; MSA
28.1083, to six to thirty years’ imprisonment for each conviction. Defendant appeals as of right. We
affirm.
Defendant was convicted for sexually assaulting his former girlfriend. The victim testified that on
the morning of June 6, 1996, defendant followed her home from a substance abuse meeting they both
attended, forced his way into her house as she entered, and sexually assaulted her, penetrating her
vagina with both his fingers and penis. She further alleged that he returned that same night, again forcing
his way into the house, and again sexually assaulting her. In addition to the victim’s account of the
events, the prosecution introduced testimony of the victim’s daughter, who overheard her mother telling
defendant to stop and observed defendant on top of her mother on a living room couch. Two of the
victim’s friends, Maria Garcia and Sharon Taylor, testified that they noticed defendant following them to
her house as they drove home from the morning meeting, and that the victim told them of the sexual
assault the next day. The prosecution did not introduce any testimony corroborating the alleged
nighttime incident. Defendant testified at trial and denied that the assaults occurred. Defendant claimed
that the victim and the other prosecution witnesses were lying and that the victim fabricated the charges
after he spurned her to marry another woman. The defense also introduced the testimony of another of
defendant's former girlfriends, who stated that the victim related the June 6 incident as only physical in
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nature, not mentioning a sexual assault. The jury convicted defendant on the two counts arising from the
morning incident, acquitting him of the alleged nighttime assault.
Defendant first argues the prosecution failed to introduce sufficient evidence to convict him of
the crimes charged. We disagree. In reviewing the sufficiency of the evidence, this Court must view the
evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could
conclude that the elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748, amended 441 Mich 1201 (1992).
Defendant’s arguments relate to the credibility of the victim and the other prosecution witnesses
and the lack of physical evidence supporting the victim’s account of the events. In evaluating the
sufficiency of the evidence, this Court should not interfere with the jury's role of determining the weight
of the evidence or the credibility of the witnesses. Id. at 514-515. We do not determine which
testimony to believe, and instead resolve all conflicts in favor of the prosecution. People v Terry, 224
Mich App 447, 452; 569 NW2d 641 (1997). Viewing the evidence in the light most favorable to the
prosecution, the evidence was sufficient to support defendant’s convictions for the morning assault. The
fact that the jury did not convict defendant of the third charge for the alleged nighttime assault does not
change our conclusion. A jury has the right to disregard all or part of a witness’ testimony. People v
Goodchild, 68 Mich App 226, 235; 242 NW2d 465 (1976).
Defendant next contends the trial court committed reversible error when it allowed the
prosecution to present Taylor as a rebuttal witness. Defendant failed to object to this testimony below.
Accordingly, he has waived appellate review of this issue absent manifest injustice. People v Kelly,
423 Mich 261, 281; 378 NW2d 365 (1985); People v Asevedo, 217 Mich App 393, 398; 551
NW2d 478 (1996). The evidence against defendant was sufficiently strong to convince us that manifest
injustice is not present in this case. See Asevedo, supra at 398-399.
Defendant next argues that the prosecutor’s comments during closing argument denied him a fair
trial. We disagree. Defendant failed to object to the remarks at trial. The failure to object deprives the
trial court of an opportunity to cure the error, and we will reverse only if a curative instruction could not
have eliminated the prejudicial effect of the remarks or where the result would be a miscarriage of
justice. People v Messenger, 221 Mich App 171, 179-180; 561 NW2d 463 (1997). Reversal is not
warranted in this case.
The prosecutor did not express a personal opinion on the credibility of prosecution witnesses.
Moreover, the prosecutor is permitted to argue from the facts that the defendant is not worthy of belief.
People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Finally, we find the
prosecutor’s remark that “according to [defendant], ‘cuz he’s such a hot catch,” did not deny defendant
a fair and impartial trial. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). We
conclude that when placed in context, the prosecutor’s remarks were appropriate responses to
defendant's theory of the case that did not deny him a fair and impartial trial. There was no miscarriage
of justice.
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Finally, defendant claims he received ineffective assistance of counsel. Defendant’s claim is
based on counsel’s failure to remove two jurors from the panel. The two jurors indicated during voir
dire that they had brothers who had been sexually assaulted.1 Because defendant did not move for a
Ginther2 hearing or a new trial based on ineffective assistance of counsel, our review is limited to
mistakes apparent on the record. People v McCrady, 213 Mich App 474, 478-479; 540 NW2d 718
(1995).
We review an ineffective assistance of counsel claim to determine whether defendant has shown
that counsel’s performance fell below an objective standard of reasonableness, and that the
representation so prejudiced defendant as to deprive him of a fair trial. People v Pickens, 446 Mich
298, 338; 521 NW2d 797 (1994). To demonstrate ineffective assistance defendant must overcome a
strong presumption that counsel's assistance constituted sound trial strategy. People v Stanaway, 446
Mich 643, 687; 521 NW2d 557 (1994). He must also show that there is a reasonable probability that,
but for counsel's error, the result of the proceeding would have been different. Id., at 687-688.
Defendant has failed to establish his claim of ineffective assistance. In People v Robinson, 154
Mich App 92, 94-95; 397 NW2d 229 (1986), this Court recognized that decisions on whether to
accept or strike certain jurors are matters of trial strategy. It is well-established that this Court will not
second-guess counsel on matters of trial strategy. People v Barnett, 163 Mich App 331, 338; 414
NW2d 378 (1987). In Robinson, supra at 95, after stating that research had not revealed any case in
Michigan where defense counsel’s failure to challenge a juror or jurors has been held to be ineffective
assistance of counsel, this Court stated: “[w]e cannot imagine a case where a court would so hold, and
we do not so hold in this case.” We also decline to so hold in this case. This appeal does not present
Robinson’s unimaginable case.
We also reject defendant’s cursory argument that the trial court should have sua sponte
excused the two jurors. Jurors are presumed to be competent and impartial, and the burden of proving
otherwise is on the party seeking disqualification. People v Walker, 162 Mich App 60, 63; 412
NW2d 244 (1987). Defendant has failed to convince us that the jurors were incompetent or partial.
Affirmed.
/s/ Gary R. McDonald
/s/ David H. Sawyer
/s/ Jeffrey G. Collins
1
The fact that the jurors had disclosed this information distinguishes this case from People v DeHaven,
321 Mich 327; 32 NW2d 468 (1948), People v Hannum, 362 Mich 660; 107 NW2d 894 (1961),
and People v Kage, 193 Mich App 49; 483 NW2d 424, rev’d 439 Mich 1022 (1992), which
defendant cites.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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