PEOPLE OF MI V FELIX HARPER, JR.
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 12, 2002
Plaintiff-Appellee,
v
No. 226946
Oakland Circuit Court
LC No. 99-167099-FH
FELIX HARPER, JR.,
Defendant-Appellant.
Before: Talbot, P.J., and Smolenski and Wilder, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession with intent to deliver less
than fifty grams of a mixture containing cocaine, MCL 333.7401(2)(a)(iv), and was sentenced to
nine months to thirty years in prison, to be served consecutive to an existing sentence defendant
was serving due to his status as a parolee. Defendant appeals by right. We affirm.
Defendant raises claims of prosecutorial misconduct. Defendant first alleges that the
prosecutor improperly elicited testimony and argued to the jury about defendant’s silence and his
non-verbal conduct when questioned by police after he had been given Miranda1 warnings.
Defendant argues that admission of this testimony violated his Fifth and Fourteenth Amendment
right against self-incrimination. Defendant also claims that the prosecutor and the police
committed misconduct by injecting evidence of defendant’s status as a parolee.
Defendant objected to the statements concerning his parole status. Also, during closing
argument, defendant objected to the prosecution’s argument that defendant answered, “yes” when
he nodded his head in response to the police questioning. Therefore, these claims of error are
preserved and we will evaluate the challenged conduct in context to determine if the defendant
was denied a fair and impartial trial. People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67
(2001); People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Because defendant
did not timely and specifically object to the other alleged prosecutorial improprieties, we will
review these claims only for plain error that affected his substantial rights. People v Carines,
460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999); People v Schultz, 246 Mich App 695,
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Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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709; 635 NW2d 491 (2001); People v Wyngaard, 462 Mich 659, 668; 614 NW2d 143 (2000).
Similarly, we review unpreserved claims of evidentiary error for plain error. People v Coy, 243
Mich App 283, 287; 620 NW2d 888 (2000). We find no error in this case.
The use of a defendant’s post-arrest, post-Miranda warning silence for impeachment or as
substantive evidence violates due process guaranteed by the Fourteenth Amendment, except to
contradict the defendant’s trial testimony that he made a statement, that he cooperated with
police, or that trial was his first opportunity to explain his version of events. Doyle v Ohio, 426
US 610, 619 n 11; 96 S Ct 2240; 49 L Ed 2d 91 (1976); People v Dennis, 464 Mich 567, 573 n 5;
628 NW2d 502 (2001). However, where a defendant has waived his Miranda rights and
voluntarily speaks to the police, evidence of omissions in his statements, as well as evidence of a
nonverbal response to a question, does not violate the right to silence and may be admitted at
trial. People v McReavy, 436 Mich 197, 211-212, 218, 222; 462 NW2d 1 (1990); People v Rice
(On Remand), 235 Mich App 429, 435-447; 597 NW2d 843 (1999). Provided the rules of
evidence are otherwise satisfied, “evidence of a defendant’s behavior and demeanor during a
custodial interrogation after a valid waiver of his Fifth Amendment privilege against compelled
self-incrimination” is admissible. McReavy, supra at 200-202, 218, 222. See People v Sholl,
453 Mich 730, 738; 556 NW2d 851 (1996).
In the present case, the alleged silence of defendant occurred while he was in custody
during a conversation with one of the investigating police officers with another officer present.
The uncontradicted testimony of the two police officers established that defendant was advised of
his Miranda rights and waived them. According to one of the officers’ testimony, after
defendant commented that the police must know defendant never left his house, the interviewing
officer told defendant that he knew “your runners come and then they distribute the drugs for
you,” and defendant nodded his head up and down. Further, the officer testified that when
defendant was asked if the drugs found in the home were his, defendant “hunched” over in his
chair and hung his head, but did not say anything. This evidence was properly before the jury.
Scholl, supra at 738; Rice (On Remand), supra at 437. The introduction of evidence of what
defendant said, his demeanor, and his nonverbal conduct, did not violate either defendant’s Fifth
Amendment right against self-incrimination or his rights under the Fourteenth Amendment Due
Process Clause. McReavy, supra at 220-222; Rice (On Remand), supra at 437. Moreover, the
prosecutor did not engage in misconduct by introducing admissible evidence and arguing all
reasonable inferences derived from the evidence. People v Bahoda, 448 Mich 261, 282; 531
NW2d 659 (1995); Rice (On Remand), supra at 437.
Defendant next claims the prosecutor and the police committed misconduct by injecting
defendant’s status as a parolee. A defendant’s opportunity for a fair trial can be jeopardized
when the prosecutor injects issues broader than the guilt or innocence of the accused. Rice (On
Remand), supra at 438. In the instant case, however, it was defendant’s cross-examination of
one of the investigating police witnesses that first injected defendant’s parole status into the trial
by pressing the witness for an explanation of how he learned that defendant was working on the
day of the police raid.
Defendant’s argument that the officer violated “a special duty not to venture into
forbidden areas of testimony,” People v O'Brien, 113 Mich App 183, 209; 317 NW2d 570
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(1982), fails. The cases relied upon by defendant are factually distinguishable and involve
nonresponsive comments or answers, People v Holly, 129 Mich App 405, 414; 341 NW2d 823
(1983); People v Page, 41 Mich App 99, 100-101; 199 NW2d 669 (1972), or nonresponsive
answers introducing evidence specifically ruled inadmissible by the trial court, People v
McCarver (On Remand), 87 Mich App 12, 15; 273 NW2d 570 (1978). In the present case, the
officer’s answer was responsive to a defense question, which although somewhat ambiguous,
could easily have been understood by the officer as calling for the answer given. Moreover, the
officer’s answer should have been anticipated by the defense. Further, the trial court granted
defendant’s request that evidence that defendant was on parole and tethered to his residence
would not be permitted unless defendant chose to present it. Defendant did so by calling his
parole agent as a defense witness. Accordingly, defendant has waived any claim of error. People
v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000); Carines, supra at 762 n 7.
Defendant’s affirmative use of his parole status and past drug use further demonstrates a
waiver in this case. People v Sutton (After Remand), 436 Mich 575, 596; 464 NW2d 276 (1990).
Defense counsel, by questioning police witnesses and in closing argument, painted a picture of
defendant as a drug user who could not be trusted with the large quantity of drugs found by the
police. Through testimony of his parole officer and closing argument defense counsel portrayed
defendant as a drug user, trying to better himself through counseling and employment, but forced
to live in a home with his drug-dealing brother as a condition of parole. The parole officer also
established a critical element of the defense, that defendant left his home at 7:59 a.m., about ten
hours before the police raid, and did not return. Further, the defense used defendant’s parole
status to argue that his status as an “ex-con” explained why he was charged even though the bulk
of the drugs were found in his brother’s bathrobe.
Defendant also claims the prosecutor improperly shifted the burden of proof by arguing
that defendant’s actions, statements, and omissions were inconsistent with an innocent state of
mind. This argument is unpreserved and is reviewed for plain error affecting substantial rights.
People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). As discussed above, because
defendant waived his Miranda rights and chose to speak to the police, his “lack of
responsiveness” was “nonassertive conduct evidence that was admissible along with []
defendant's express statements indicating consciousness of guilt [].” McReavy, supra at 203. “In
such a conversation, [defendant’s] statements, the manner in which he phrased those statements,
and [defendant’s] varying degrees of candor all were fit matters for the jury to consider.” Sholl,
supra at 738. Therefore, the prosecutor’s argument did not shift the burden of proof; rather, it
merely argued that defendant’s statement, demeanor, and conduct indicated a consciousness of
guilt, McReavy, supra, and also attacked the credibility of the theory advanced by defendant at
trial that it was his brother alone who possessed the large quantity of cocaine and that defendant
was the victim of circumstances such as police bias because of his parole status. People v Fields,
450 Mich 94, 107, 115; 538 NW2d 356 (1995).
Defendant’s final claim of misconduct is that the prosecution denied him a fair trial by
equating an up-and-down headshake with a spoken “yes” in its closing argument. Defendant’s
argument is without merit. The prosecutor is accorded great latitude in her argument and is free
to argue all reasonable inferences based on the evidence as it relates to her theory of the case.
Bahoda, supra at 282. We find no error.
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Next, defendant claims he was denied his right to the effective assistance of counsel
based on his attorney’s failure to move for a mistrial when testimony indicated defendant was on
parole and by exacerbating the error by calling defendant’s parole agent as a defense witness.
We disagree.
In People v Pickens, 446 Mich 298, 312-313; 521 NW2d 797 (1994), our Supreme Court
held that the Michigan Constitution does not provide a higher standard for effective assistance of
counsel than the United States Constitution, and adopted the test formulated in Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Under the two-pronged test to
determine if counsel’s performance fell below the constitutional standard, the defendant has the
burden of overcoming the presumption that counsel was effective. Strickland, supra at 689.
First, the defendant must show that counsel’s performance was deficient as measured against an
objective standard of reasonableness under the circumstances according to prevailing
professional norms. Id. at 687-688; Pickens, supra at 312-313. Second, counsel’s deficiency
must have been so prejudicial that the defendant was deprived of a fair trial. Strickland, supra at
687-688; Pickens, supra at 309. To prove prejudice, defendant must show that there is a
reasonable probability that but for counsel’s unprofessional error(s) the trial outcome would have
been different. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000); Pickens, supra
at 312.
Defendant has failed to overcome the presumption that his trial counsel provided
effective assistance. People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001); People v
Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). His attorney employed a reasonable
strategy, as discussed above, to argue that although defendant was a drug user, he would not have
been trusted to possess the large quantity of drugs (which indicated intent to deliver) found in his
brother’s bathrobe. Further, trial counsel argued that even though the evidence pointed to his
brother as the drug dealer, defendant was charged because he was an “ex-con.” Finally, calling
defendant’s parole officer may have been the only way trial counsel could show defendant’s tenhour absence from his home before the police raid, which had not been established by the police
testimony, without subjecting defendant to potentially devastating cross-examination, as well as
avoiding possible ethical problems. Toma, supra at 303 n 16.
The fact that the strategy that counsel pursued was unsuccessful does not mean he was
ineffective. People v Williams, 240 Mich App 316, 332; 614 NW2d 647 (2000). Also, it is not
ineffective assistance of counsel to admit guilt to a lesser offense in the hope of raising
reasonable doubt about a greater charge. People v Emerson (After Remand), 203 Mich App 345,
348-349; 512 NW2d 3 (1994). Moreover, trial counsel’s decisions whether to call witnesses and
the manner of questioning witnesses are presumed to be matters of trial strategy. Rockey, supra
at 76. This Court will not second-guess counsel concerning trial strategy with the aid hindsight
or on the basis that the strategy was unsuccessful. Rice (On Remand), supra at 445; People v
Wise, 134 Mich App 82, 97-98; 351 NW2d 255 (1984).
Defendant next argues that admission of evidence that he used cocaine, was on parole,
and violated parole by using cocaine required that a cautionary instruction on bad acts evidence
be given in this case. Defendant has waived review of this issue by acquiescing in the trial
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court’s decision not to give a cautionary instruction. Carter, supra at 215-216; People v Taylor,
159 Mich App 468, 488; 406 NW2d 859 (1987).
Finally, defendant argues that the cumulative effect of trial errors denied him a fair trial.
We disagree. In order to reverse based upon cumulative error, there must be errors of
consequence that are seriously prejudicial to the point that defendant was denied a fair trial.
People v Knapp, 244 Mich App 361, 387-388; 624 NW2d 227 (2001). Prejudicial error has not
been demonstrated in this case and absent such a showing, there can be no cumulative effect of
errors warranting reversal. People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370 (1999).
Affirmed.
/s/ Michael J. Talbot
/s/ Michael R. Smolenski
/s/ Kurtis T. Wilder
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