PEOPLE OF MI V ARDRA YOUNG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 14, 2000
Plaintiff-Appellee,
v
No. 208788
Wayne Circuit Court
LC No. 97-001523
ARDRA YOUNG,
Defendant-Appellant.
Before: Gribbs, P.J., and Cavanagh and Gage, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of first-degree murder, MCL 750.316; MSA
28.548, and two counts of felony-firearm, MCL 750.227b; MSA 28.414(2), in the shooting deaths of
his wife and son. He was sentenced to concurrent terms of mandatory life imprisonment, and to
consecutive two-year terms for felony-firearm. On appeal, defendant raises numerous issues, both
through counsel and in propria persona. We affirm.
First, there is no merit to defendant’s claim that the trial court erred by denying his motion to
suppress his confession. Defendant’s claim that he was not given his Miranda1 rights is not relevant to
this issue; defendant was not in custody at the time of his first statement, People v Honeyman, 215
Mich App 687, 694-695; 547 NW2d 344 (1996), and he denies that he ever made the second
statement. In determining whether a defendant’s statement was voluntary, a court should consider (1)
the age of the accused; (2) the accused’s lack of education or his intelligence level; (3) the extent of the
accused’s previous experience with the police; (4) the repeated and prolonged nature of the
questioning; (5) the length of the detention before the accused gave the statement; (6) the lack of any
advice to the accused of his constitutional rights; (7) whether there was an unnecessary delay in bringing
the accused before a magistrate before he gave the confession; (8) whether the accused was injured,
intoxicated or drugged, or in ill health when he gave the statement; (9 whether the accused was deprived
of food, sleep or medical attention; (10) whether the accused was physically abused; and (11) whether
the accused was threatened with abuse. People v Sexton, 458 Mich 43; 580 NW2d 404 (1998).
Here, defendant had a high school education; he came to the police station voluntarily, at a time of his
own choosing; he was at the police station less than 3-1/2 hours when he made his confession; he
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denied being intoxicated or drugged and did not appear to be; he was offered food; and he does not
claim to have been physically abused or threatened. Defendant’s claims of error rest entirely on a
finding of credibility. The trial court did not believe defendant’s allegations and this Court gives great
deference to the trial court’s assessment of credibility. People v Cheaham, 453 Mich 1, 29-30; 551
NW2d 355 (1996); People v Kowalski, 230 Mich App 464, 471-472; 584 NW2d 613 (1998), The
trial court’s findings and conclusion that defendant’s confession was voluntary are not clearly erroneous.
Id.
There is no merit to defendant’s claim that the trial court erred by denying defendant’s motions
for new trial. Defendant sought a new trial on the basis of newly discovered evidence. For a new trial
to be granted on the basis of newly discovered evidence, it must be shown that: (1) the evidence itself,
not merely its materiality, is newly discovered; (2) the newly discovered evidence was not cumulative;
(3) including the new evidence upon retrial would probably cause a different result; and (4) the party
could not, using reasonable diligence, have discovered and produced the evidence at trial. People v
Johnson, 451 Mich 115, 118 n 6; 545 NW2d 637 (1996). The evidence raised here was not newly
discovered. Defendant sought to introduce the same evidence at trial and was precluded from doing so.
Defendant’s allegations of undiscovered new evidence are not supported by any evidence, old or new.
The trial court did not abuse its discretion in denying defendant’s motion for new trial. Bosak v
Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985).
There is no merit to defendant’s claims of ineffective assistance of counsel. Contrary to
defendant’s claim on appeal, defense counsel did attempt to impeach witness Connolly with his prior
statement. Counsel’s decision whether to attempt to introduce the statement into evidence is a matter of
trial strategy that will not be second guessed by this Court. People v Mitchell, 454 Mich 145; 560
NW2d 600 (1997); People v Stewart, 219 Mich App 38, 42; 555 NW2d 715 (1996). Defendant’s
claim that the prosecutor acted improperly by not revealing the statement to the jury is specious and
without merit.
There is no merit to defendant’s claim that the trial court abused its discretion by refusing a
request from the jury to rehear testimony. The trial court did not err by refusing to send an exhibit that
had not been admitted to the jury room, and, contrary to defendant’s allegation, it left open the
possibility that the jury could ask to hear tapes of testimony if necessary.
There is no merit to the claim that the trial court disparaged defendant’s alibi witness. The trial
court’s comment about used car salesmen was made during voir dire in another context. Defendant’s
witness identified himself as a truck salesman, not a used car salesman, and, in any event, his testimony
was not challenged by the prosecution. There was no clear error here, defendant was not prejudiced,
and the fairness of the proceedings was not compromised. People v Carines, 460 Mich 750, 763
764; 597 NW2d 130 (1999).
There is no merit to defendant’s claim of prosecutorial misconduct. When reviewing a claim of
prosecutorial misconduct, this Court considers the conduct in context to determine whether it denied the
defendant a fair and impartial trial. If the issue was not properly preserved, review is foreclosed unless
no curative instruction could have removed any undue prejudice to the defendant or manifest injustice
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would result from the failure to review the conduct. People v Reid, 233 Mich App 457, 466; 592
NW2d 767 (1999). Prosecutors are afforded wide latitude regarding their arguments and conduct.
They are free to argue the evidence, to comment on the demeanor of witnesses, and to make all
reasonable inferences. People v Bahoda, 448 Mich 261; 531 NW2d 659 (1995); People v Bucky,
424 Mich 1, 15; 378 NW2d 432 (1985); People Garland, 152 Mich App 301, 310; 393 NW2d 896
(1986). The prosecutor’s remarks here, viewed as a whole, did not deny defendant a fair and impartial
trial.
There is no merit to defendant’s claim in propria persona that the police lacked probable cause
to conduct a custodial interrogation. An arrest must be made upon probable cause at the time of the
arrest. People v Lyon, 227 Mich App 599, 611; 577 NW2d 124 (1998). Probable cause is
established by showing the probability or substantial chance of criminal activity. Id. Even if a suspect is
detained illegally, his subsequent confession need not be suppressed unless the unlawful detention was
used to directly procure evidence from the detainee. People v Kelly, 231 Mich App 627, 634; 588
NW2d 480 (1998). Intervening circumstances, such as new information learned by the police, can
break the causal connection between an unlawful arrest and an inculpatory statement, so that the
statement is sufficiently an act of free will to purge the primary taint of unlawful arrest. Id. Here, there
was ample evidence of defendant’s involvement in the shootings to justify his custodial interrogation
prior to his making a confession. There was no plain error in admission of his statement, Carines,
supra, and defendant’s claim of ineffective assistance on this basis is also without merit.
There is no merit to defendant’s claim in propria persona that counsel was ineffective for not
challenging police failure to have defendant examined by a physician after making his confession, as
provided by a police department policy. Counsel did in fact raise the issue of the department policy
requiring examination by a physician, and the question whether counsel pursued the claim vigorously
enough involves a matter of trial strategy. People v Mitchell, 454 Mich 145; 560 NW2d 600 (1997);
People v Stewart, 219 Mich App 38, 42; 555 NW2d 715 (1996). Further, defendant does not
present, and we do not find, any authority for the contention that suppression of defendant’s confession
is required because the police did not follow their department policy. The sole purpose of the policy is
to determine whether there is evidence of physical abuse. Defendant makes no allegation of physical
abuse here and was not prejudiced.
There is no merit to defendant’s issue in propria persona that the prosecutor improperly raised
the issue of defendant’s and witnesses’ religious practices. Defendant first raised the issue, during
cross-examination of defendant’s brother-in-law, regarding defendant’s involvement with Jehovah’s
Witnesses. Part of the defense in this case was that defendant removed his son so quickly from life
support because of the family’s involvement with Jehovah’s Witnesses. The decision concerning
defendant’s defense strategy and which of the prosecutor’s questions to challenge are matters of trial
strategy that this Court will not second-guess. Id.
There is no merit to defendant’s issue in propria persona that the prosecutor deliberately
injected bad acts evidence, that the trial court erred by failing to sua sponte give a cautionary instruction,
and that counsel was ineffective for failing to object. Defendant challenges admission of testimony that
he spoke to his wife “as if she were a child,” that his disassociation from Jehovah’s Witnesses led to a
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breakdown in his marriage because he “no longer wanted to follow [Bible] principles,” and that he took
money from his wife that would otherwise have been used for their son’s education. Evidence of marital
discord is admissible to show motive. People v Fisher, 449 Mich 441, 453; 537 NW2d 577 (1995).
The testimony was properly allowed and neither the prosecutor, the trial court nor defense counsel were
in error.
There is no merit to defendant’s claim in propria persona that reversal is required because the
prosecutor introduced and defense counsel failed to object to “third-party hearsay” concerning marital
discord. The decision about what testimony to object to is a matter of trial strategy that will not be
second-guessed by this Court. Stewart, supra. In any event, in light of the other admissible evidence
against defendant, we are not convinced that any error here could have been decisive to the outcome.
People v Nimeth, 236 Mich App 616, 625; 601 NW2d 393 (1999).
There is no merit to defendant’s claim in propria persona that defendant was denied a fair trial
because the prosecutor asked improper questions of defense witness Floride Brown, and because
defense counsel failed to object. Although Brown had never met defendant, she wrote him letters in jail
and defendant sent her an extremely negative response. Under the circumstances, it was not improper
for the prosecutor to delve into Brown’s motive for volunteering an alibi for defendant a month before
trial, and counsel was not ineffective for failing to object.
There is no merit to defendant’s claim in propria persona that he was denied a fair trial because
of prosecutorial misconduct during closing argument. When reviewing alleged instances of prosecutorial
misconduct, a court must examine the pertinent portion of the record and evaluate the prosecutor's
remarks in context. The test is whether the defendant was denied a fair and impartial trial People v
Green, 228 Mich App 684, 693; 580 NW2d 444 (1998). Defendant raises a number of challenges,
most of which were not preserved below. Absent an objection at trial to a prosecutor's closing
argument, appellate review is precluded unless any prejudicial effect could not have been cured by a
cautionary instruction and failure to consider the issue would result in a miscarriage of justice. People v
Warren, 200 Mich App 586, 589; 504 NW2d 907 (1993). We have reviewed the r
ecord and
conclude that defendant was not denied a fair and impartial trial.
There is no merit to defendant’s claim in propria persona that reversal is required because the
trial court failed to comply with MCL 767.27A; MSA 28.966(11). The statute was repealed in 1974
and so does not apply in this matter. A defendant is presumed competent to stand trial, People v
Newton (Aft Rem), 179 Mich App 484, 487; 446 NW2d 487 (1989), and there was no allegation
either at trial or on appeal that defendant was incompetent to stand trial. Further, a determination of
competency may rest solely on the psychiatric report if neither the state nor defendant chooses to offer
testimony. Here, defense counsel stipulated to defendant’s competency and two psychiatric examiners
found him competent to stand trial. Even if it was error for the trial court to fail to hold a hearing,
defendant has not demonstrated prejudice in this matter. Carines, supra.
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Because we have found each of defendant’s issues to be without merit, there is also no merit to
his contention that reversal is required because of their cumulative affect.
Affirmed.
/s/ Roman S. Gribbs
/s/ Mark J. Cavanagh
/s/ Hilda R. Gage
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Miranda v Arizona, 384 US 436, 467; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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