PEOPLE OF MI V DONALD HUNTER ELLIS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 16, 2001
Plaintiff-Appellee,
v
No. 210011
Wayne Circuit Court
LC No. 95-008835
DONALD HUNTER ELLIS,
Defendant-Appellant.
Before: Markey, P.J., and Murphy and Collins, JJ.
PER CURIAM.
Defendant was charged with alternative theories of first-degree premeditated murder and
first-degree felony murder, MCL 750.316; MSA 28.548, and an additional count of possession of
a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Following a jury
trial, he was convicted of two counts of second-degree murder, MCL 750.317; MSA 28.549, and
felony-firearm. He was sentenced to two concurrent terms of thirteen to twenty years each for
the murder convictions, and a consecutive two-year term for the felony-firearm conviction.
Defendant appeals by right. We affirm defendant's convictions and sentences for one count of
second-degree murder and felony-firearm, but vacate the second conviction for second-degree
murder.
Defendant argues that he was denied a fair trial because the prosecutor presented a
significant amount of personal background information about the victim, which defendant
contends was calculated to elicit sympathy for the victim. Because defendant did not object
below to the challenged testimony, appellate relief is precluded absent a showing of plain error
(i.e., error that is clear or obvious) affecting defendant’s substantial rights (i.e., error that affected
the outcome of trial). Moreover, a reviewing court should not reverse unless it concludes that
defendant is actually innocent or the error seriously affected the fairness, integrity, or public
reputation of the judicial proceedings. People v Carines, 460 Mich 750, 761-767; 597 NW2d
130 (1999).
Claims of prosecutorial misconduct are decided case by case. People v McElhaney, 215
Mich App 269, 283; 545 NW2d 18 (1996). Prosecutorial misconduct cannot be based on good
faith efforts to admit evidence. People v Noble, 238 Mich App 647, 660; 608 NW2d 123 (1999);
People v Missouri, 100 Mich App 310, 328; 299 NW2d 346 (1980).
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For the most part, the challenged evidence was relevant to provide context to the parties’
conflicting theories in the case. During closing argument, the prosecutor referred to the evidence
to explain how it supported her theory of the case, not to evoke sympathy. Thus, defendant has
not shown that the admission of this evidence constituted plain error.
Next, defendant argues that improper remarks by the trial judge deprived him of a fair
trial. Defendant did not object to the challenged remarks at trial. Therefore, we review this
unpreserved issue to determine whether plain error affected defendant's substantial rights.
Carines, supra at 763. We do not condone the trial judge's remarks. Nevertheless, viewed in
context, it is apparent that the judge was directing his comments to all parties, not just the
defense; thus, the judge’s comments did not pierce the veil of judicial impartiality to the point
that the jury was unduly influenced. People v Davis, 216 Mich App 47, 49-50; 549 NW2d 1
(1996); People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995). Further, it was not
improper for the judge to briefly interject himself into the examination of defendant when
defendant was being evasive during questioning. Davis, supra.
Defendant next claims that the testimony of Alice Simms was improperly admitted on
rebuttal because her testimony did not constitute proper rebuttal evidence, and Simms’ telephone
records were not previously disclosed to defendant. The admissibility of rebuttal evidence is
within the sound discretion of the trial court, and this Court will not reverse absent a clear abuse
of discretion. People v Figgures, 451 Mich 390, 398; 547 NW2d 673 (1996). The challenged
evidence was offered to contradict defendant’s claim that the victim had carjacked him on the
date and time in question and, therefore, was proper rebuttal evidence. Id. at 399. Also, in light
of other testimony that the victim called his fiancée often and that telephone bills would so
reflect, we do not believe the rebuttal evidence surprised defendant. In any event, defendant did
not establish that he was unable to properly cross-examine the witness regarding the disputed
evidence or that he needed more time to investigate the authenticity of the telephone bill.
Defendant’s additional arguments concerning the admission of this evidence were not raised in
the trial court and, therefore, are unpreserved. Moreover, defendant has not otherwise
established any plain error affecting his substantial rights arising from the admission of this
evidence. Carines, supra.
Next, we reject defendant’s unpreserved claim that testimony from the victim’s fiancée to
the effect that the victim did not own or possess a gun on the date in question constituted
improper character evidence. The testimony was not offered as evidence of the victim’s peaceful
character, but to rebut the defense theory that the victim was armed with a gun and that defendant
shot the victim in self-defense. Because plain error has not been shown, reversal is not
warranted. Carines, supra.
Defendant also claims that numerous episodes of prosecutorial misconduct denied him a
fair trial. Defendant did not object to most of the matters that he now challenges on appeal.
With regard to those unpreserved matters, we conclude that defendant has not demonstrated any
plain error affecting his substantial rights stemming from the prosecutor’s remarks. Carines,
supra; see, also, People v Bahoda, 448 Mich 261, 282-283; 531 NW2d 659 (1995); People v
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Also, as we have previously
concluded, defendant has not established that the prosecutor improperly introduced evidence of
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the victim’s peaceful character or personal background. Finally, defendant has not established
that the prosecution improperly failed to disclose exculpatory evidence during the prior appeal in
this case. Simply because the prosecutor argued that the case did not involve a close-range
shooting does not establish that exculpatory evidence was withheld from defendant.
Defendant next argues that he was denied the effective assistance of counsel. In order for
this Court to reverse because of 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 his right to a fair trial. People v Pickens,
446 Mich 298, 338; 521 NW2d 797 (1994). To establish prejudice, defendant must show that
there was a reasonable probability that, but for his counsel's error, the result of the proceeding
would have been different. People v Johnnie Johnson, Jr, 451 Mich 115, 124; 545 NW2d 637
(1996).
Having reviewed defendant’s numerous allegations of deficient performance, we find no
basis for relief because of ineffective assistance of counsel. Defendant’s allegations are either
unsupported by the record, People v Hoag, 460 Mich 1, 6-8; 594 NW2d 57 (1999), involve
matters of trial strategy that we will not second-guess, People v Tommolino, 187 Mich App 14,
17; 466 NW2d 315 (1991), involve issues discussed elsewhere in this opinion for which
defendant has not established any error affecting his substantial rights, or involve matters that
had no effect on the outcome of the proceedings, People v Mitchell, 454 Mich 145, 163; 560
NW2d 600 (1997).
Next, no plain error has been shown with respect to defendant’s unpreserved claims of
instructional error. Carines, supra. The court’s "reasonable doubt" instruction was given in
accordance with CJI2d 3.2(3), and that instruction adequately conveyed the concept of reasonable
doubt to the jury, notwithstanding the absence of "moral certainty" language. People v Snider,
239 Mich App 393, 420-421; 608 NW2d 502 (2000); People v Cooper, 236 Mich App 643, 656;
601 NW2d 409 (1999).
Defendant also argues that the late endorsement of witness Ira Gray was error. Defendant
did not object to Gray’s testimony, thereby precluding relief absent a showing of plain error
affecting defendant’s substantial rights. Carines, supra. Good cause was shown for Gray’s late
endorsement where he was called only as a rebuttal witness, and his testimony became relevant
only after defendant had testified. People v Burwick, 450 Mich 281, 291; 537 NW2d 813 (1995);
People v Kulick, 209 Mich App 258, 265; 530 NW2d 163 (1995), remanded for reconsideration
on other grounds 449 Mich 851 (1995). Further, defendant has not shown that the late
endorsement prejudiced him.
Although the trial court had initially ruled that Gray's testimony was inadmissible,
defendant never objected when Gray was subsequently called to testify. Thus, we are unable to
conclude that the trial court's earlier ruling entirely precluded Gray’s testimony. Furthermore, we
believe that Gray’s testimony was properly admitted. There was sufficient circumstantial
evidence to establish that the gun used to shoot the victim was either an automatic or semiautomatic handgun. Because Gray's testimony addressed both types of weapons, it was not
improper as being unduly speculative.
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Finally, defendant has not shown that trial counsel was ineffective for not requesting an
instruction on other lesser included crimes. Pickens, supra. The decision whether to request an
instruction on a lesser included offense is a matter of trial strategy. People v Thorin, 126 Mich
App 293, 299; 336 NW2d 913 (1983). It is legitimate trial strategy to forego instructions on
lesser included offenses to force the jury into an "all or nothing" decision. People v Nickson, 120
Mich App 681, 687; 327 NW2d 333 (1982); People v Rone (On Second Remand), 109 Mich App
702, 718; 311 NW2d 835 (1981). Thus, defendant has not shown that his attorney engaged in
unsound strategy by not requesting an instruction on manslaughter. People v Sardy, 216 Mich
App 111, 116; 549 NW2d 23 (1996).
In light of the foregoing discussion, we reject defendant's claim that he was denied a fair
trial due to the cumulative effect of several errors at trial. Cooper, supra at 659-660.
Defendant’s two-year determinate sentence for felony-firearm is not unconstitutional.
Cooper, supra at 660-664. See, also, Snider, supra at 426-428.
Because defendant was found guilty of one killing, we agree that his convictions and
sentences for two counts of second-degree murder were improper. People v Zeitler, 183 Mich
App 68, 71; 454 NW2d 192 (1990). Accordingly, we vacate one of the convictions for seconddegree murder and remand this matter to the trial court for preparation of a corrected judgment of
sentence. Defendant’s remaining second-degree murder conviction and sentence are affirmed in
all other respects.
We affirm in part, vacate in part, and remand for preparation of a new judgment of
sentence in accordance with this opinion. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ William B. Murphy
/s/ Jeffrey G. Collins
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