PEOPLE OF MI V MARCUS J SIMMONS

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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED July 31, 2001 Plaintiff-Appellee, V No. 221689 Oakland Circuit Court LC No. 98-158222-FC MARCUS J. SIMMONS, Defendant-Appellant. Before: Doctoroff, P.J., and Murphy and Zahra, JJ. PER CURIAM. Defendant was convicted by a jury of assault with intent to murder, MCL 750.83, and was sentenced to fifteen to thirty years in prison. He appeals as of right. We affirm. I Defendant first argues that the trial court violated his right of confrontation when it barred him from impeaching the victim, Justin Hollis, with a juvenile adjudication for armed robbery. We disagree. MRE 609(e) provides that evidence of a juvenile adjudication is generally not admissible. “The court may, however, in a criminal case or a juvenile proceeding against the child allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.” Id. Thus, in deciding whether to admit evidence of a prior juvenile adjudication, the witnesses’ juvenile record should be examined in context of MRE 609. In the present case, information regarding the conduct that led to Hollis’ juvenile adjudication, whether the adjudication resulted in a conviction, and the period of time that has elapsed since the date of the conviction or release was not provided below. Thus, this issue is not preserved for our review. MRE 103(a)(2); see People v Poindexter, 138 Mich App 322, 328, 330-331; 361 NW2d 346 (1984). Defendant has not provided information regarding Hollis’ juvenile adjudication on appeal and has not advanced any other valid argument in regard to violation of his right to confrontation. Under these circumstances, we cannot conclude that the trial court erred in barring defendant from impeaching Hollis with the juvenile adjudication. See People v Grant, 445 Mich 535, 545; 520 NW2d 123 (1994). -1- II Defendant next argues that the trial court violated his due process rights by permitting the prosecutor to introduce evidence of third-party threats against Hollis. We disagree. The decision to admit or exclude evidence is within the discretion of the trial court and this Court only reverses such decisions where there is a clear abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). “An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made.” People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). Hollis testified that defendant made a threat to Quenyada Moore, telling her that she better stay out of the car with Hollis or she and Hollis’ son were going to get blown up. Hollis further testified that defendant’s mother threatened him at the preliminary examination, saying that if anything happened to her son, something would happen to Hollis. Pontiac Police Officer Latisha Williams testified that there were “continuous threats” against Hollis’ life and that, on one occasion, Hollis had to be taken out of school to ensure his safety. A defendant’s threat against a witness is generally admissible as conduct that demonstrates consciousness of guilt. People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996). The prosecutor established that the threat against Moore was made by defendant, and we find no abuse of discretion in its admission. While there is no testimony that the threats testified to by Officer Williams were made by defendant and the other threat was allegedly made by defendant’s mother, their admission does not require reversal. Such evidence was cumulative to testimony that defendant, himself, made threats. In addition to the testimony regarding the threat against Moore and Hollis’ son, there was evidence that defendant urged Anita Delgado to tell Hollis not to appear in court. For these reasons, we conclude that defendant’s argument lacks merit. III Defendant further argues that his trial counsel was constitutionally ineffective. We disagree. Because there was no Ginther1 hearing and defendant’s motion for new trial was denied, we limit our review of this issue to mistakes apparent on the existing record. People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999). In order for this Court to reverse an otherwise valid conviction based on the ineffective assistance of counsel, the defendant must establish that his counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, and that the representation so prejudiced the defendant that, but for counsel’s error, the result of the proceedings would have been different. People v Noble, 238 Mich App 647, 662; 608 NW2d 123 (1999), citing People v Pickens, 446 Mich 298, 302-303, 314; 521 NW2d 797 (1994). “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” Id. at 661-662. Furthermore, a defendant must overcome a strong presumption that 1 People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). -2- the assistance of counsel was sound trial strategy. People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999). This Court will not second guess counsel regarding matters of trial strategy, even if counsel was ultimately mistaken. Id. at 445. Nor will it assess counsel’s competence with the benefit of hindsight. Id. Defendant claims that his counsel rendered ineffective assistance by failing to object to testimony from an acquaintance of defendant indicating defendant was silent when accused of shooting at Hollis. Evidence of a defendant’s silence in the face of an accusation is admissible for purposes of impeachment. People v Hackett, 460 Mich 202, 212-215; 596 NW2d 107 (1999), citing People v Cetlinski (After Remand), 435 Mich 742, 757; 460 NW2d 534 (1990). Thus, the prosecution could have impeached defendant with this tacit admission once he took the stand and testified in his own defense. Defense counsel may have chosen not to object to the evidence because he knew that defendant could have been impeached with this evidence. Defense counsel may also have elected not to lodge an objection because the testimony indicated that defendant was not directly asked if he shot at Hollis. We will not second guess counsel regarding these matters of trial strategy. Rice, supra. Defendant also contends that he was denied effective assistance of counsel when his counsel failed to argue against the admission of his prior conviction for armed robbery and elicited from defendant on direct examination that he was currently serving jail time for the armed robbery conviction. Defendant’s armed robbery conviction was admissible under MRE 609(a)(2). Rule 609 provides for impeachment of a criminal defendant by evidence of a conviction of crime during cross-examination if the crime contains an element of theft and the probative value of the evidence outweighs its prejudicial effect. MRE 609(a)(2). According to the record, defendant was convicted of armed robbery just six months prior to trial in this matter. The crime of armed robbery contains an element of theft and is indicative and probative of defendant’s veracity. See MRE 609(b) and People v Minor, 170 Mich App 731, 736; 429 NW2d 229 (1988). See MRE 609(b). Furthermore, the fact that the conviction is merely six months old leans more heavily toward its admission. Id. The conviction is not so similar to the charged offense as to render its prejudicial effect greater than its probative value. Last, defendant would have been able to establish his defense even if he did not testify, as defendant raised an alibi defense. See MRE 609(b). Defense counsel is not required to advocate a meritless position or raise a meritless objection. People v Kulpinski, 243 Mich App 8, 27; 620 NW2d 537 (2000); Snider, supra at 425. Under these circumstances, the evidence of defendant’s prior conviction was properly admitted and defendant’s contention that his trial counsel was ineffective for not arguing against its admission is without merit. Moreover, defendant has failed to overcome the presumption that his trial counsel’s questioning regarding the armed robbery conviction was sound trial strategy. Defense counsel may have wanted to address the conviction before the prosecutor had a chance to impeach defendant on cross-examination. Again, this Court will not second guess counsel regarding trial strategy. Rice, supra. As a result, defendant has failed to establish that he received ineffective assistance of counsel at trial. IV Defendant further argues that the prosecutor violated his due process rights by improperly questioning defendant regarding his failure to call listed alibi witnesses. We disagree. -3- Where a defendant testifies to an alibi that is wholly inconsistent with what was alleged in the notice of alibi, the prosecution is permitted to impeach the defendant with his notice of alibi. People v McCray, ___ Mich App ___; ___ NW2d __ (Docket No. 214701, issued May 8, 2001), slip op pp 2-3; People v Von Everett, 156 Mich App 615, 624; 402 NW2d 773 (1986). Inconsistency in alibis clearly reflects upon a defendant’s credibility and is a proper matter for the prosecutor to raise. Id. Here, defendant’s notice of alibi was inconsistent with his trial testimony that he was with Sharika Armstrong on the night of the incident. The prosecutor’s reference to defendant’s notice of alibi and the witnesses originally referenced in that notice was a proper method of impeaching defendant. Von Everett, supra. V Finally, defendant argues that his due process rights were violated when the prosecutor made an improper civic duty argument to the jury. We disagree. Defendant failed to object at trial to the alleged misconduct. Therefore, we review this issue for plain error. People v Carines, 460 Mich 750, 761-764; 597 NW2d 130 (1999). Civic duty arguments are “generally condemned because they inject issues into the trial that are broader than a defendant’s guilt or innocence of the charges and because they encourage the jurors to suspend their own powers of judgment.” People v Crawford, 187 Mich App 344, 354; 467 NW2d 818 (1991). A review of the prosecutor’s brief remarks, in context, reveals that the prosecutor was asking the jury to convict defendant of the crime charged based on the evidence presented. See People v Bahoda, 448 Mich 261, 284-285; 531 NW2d 659 (1995). This was not improper. Moreover, the trial court’s instruction that the lawyers’ remarks are not evidence cured any error. See id. at 281. Accordingly, defendant has failed to demonstrate a plain error affecting his substantial rights. Carines, supra. Affirmed. /s/ Martin M. Doctoroff /s/ William B. Murphy /s/ Brian K. Zahra . -4-

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