PEOPLE OF MI V DAVID LEE ROMESBURG
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 25, 2000
Plaintiff-Appellee,
v
No. 209540
Wayne Circuit Court
Criminal Division
LC No. 97-502328
DAVID LEE ROMESBURG,
Defendant-Appellant.
Before: Gribbs, P.J., and Doctoroff and T. L. Ludington*, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions of first-degree home invasion, MCL
750.110a(2); MSA 28.305(a)(2), and habitual offender, second offense, MCL 769.10; MSA
28.1082, entered after a jury trial. We affirm. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Complainant testified that one morning she found a window in her living room removed and her
checkbook and wallet missing. The police found fresh fingerprints on the sill and the window.
Complainant’s wallet was found in a trash bag, and her checkbook and driver’s license were found in a
yard abutting the yard of defendant’s home. A detective testified that he obtained the addresses of the
homes behind the residence where complainant’s checkbook and driver’s license were found, and that
defendant’s residence had a number of police runs to it. Defense counsel did not object to this
statement, or request a mistrial. A defense witness testified that during the course of performing yard
work for complainant, defendant touched the window. Several defense witnesses testified that
defendant was at home on the evening of the incident.
The jury convicted defendant of first-degree home invasion. The trial court sentenced defendant
as an habitual offender to seven to thirty years in prison.
To establish ineffective assistance of counsel, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional norms,
* Circuit judge, sitting on the Court of Appeals by assignment.
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and that the representation so prejudiced the defendant that he was denied a fair trial. People v
Pickens, 446 Mich 298, 313-314; 521 NW2d 797 (1994). Counsel is presumed to have
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afforded effective assistance; to overcome that presumption, a defendant must show that counsel’s
failure to perform an essential duty resulted in prejudice. People v Stubli, 163 Mich App 376, 379;
413 NW2d 804 (1987).
Defendant argues that he was denied a fair trial because the detective’s remarks regarding
police runs to his home lead the jury to infer that he was a known criminal. He asserts that the trial
court’s failure to declare a mistrial was an abuse of discretion; in the alternative, he argues that counsel’s
failure to move for a mistrial constituted ineffective assistance. We disagree. Absent a motion on which
to rule, the trial court cannot be said to have abused its discretion. People v Rice (On Remand), 235
Mich App 429, 439; 597 NW2d 843 (1999). The testimony regarding police runs did not mention,
much less focus on, prior criminal activity by defendant. Counsel’s failure to object to the testimony
could be considered trial strategy, i.e., a decision to not highlight the testimony. We do not substitute
our judgment for that of counsel regarding matters of trial strategy. Id., 445. Generally, an
unresponsive, volunteered answer to a proper question is not grounds for a mistrial. People v Griffin,
235 Mich App 27, 36; 597 NW2d 176 (1999). Counsel’s failure to move for a mistrial did not
constitute ineffective assistance. Pickens, supra. Any error was harmless, and no miscarriage of
justice occurred. People v Grant, 445 Mich 535, 552-553; 520 NW2d 123 (1994). Other
evidence, including that regarding the presence of defendant’s fingerprints on the window and sill, and
the discovery of complainant’s checkbook and driver’s license near defendant’s residence, supported
the verdict.
Furthermore, defendant argues that he was denied a fair trial by the prosecutor’s remarks
regarding the freshness of the fingerprints and by the prosecutor’s expression of personal opinion
regarding his guilt. We disagree. The test of prosecutorial misconduct is whether the defendant was
denied a fair and impartial trial. People v Paquette, 214 Mich App 336, 342; 543 NW2d 342
(1995). Prosecutorial comments are to be read as a whole and evaluated in light of defense arguments
and the relationship they bear to the evidence admitted at trial. People v Lawton, 196 Mich App 341,
353; 492 NW2d 810 (1992). Defendant did not object to the remarks; thus, we review the issue only
if a curative instruction would not have remedied the effect of the prosecutor’s remarks, or if the failure
to review the issue would result in manifest injustice. People v Mayhew, 236 Mich App 112, 122
123; 600 NW2d 370 (1999). The prosecutor’s comment regarding the age of the fingerprints was a
logical inference based on record evidence, and was not improper. People v Bahoda, 448 Mich 261,
282; 531 NW2d 659 (1995), reh den 448 Mich 1225 (1995). Had defendant objected to the
prosecutor’s declaration of guilt, a curative instruction, to the effect that arguments of counsel are not
evidence, could have remedied any prejudice. No miscarriage of justice occurred. People v Rivera,
216 Mich App 648, 651-652; 550 NW2d 593 (1996).
Affirmed.
/s/ Roman S. Gribbs
/s/ Martin M. Doctoroff
/s/ Thomas L. Ludington
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