PEOPLE OF MI V ALVIN BROADUS STONE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 9, 2002
Plaintiff-Appellee,
v
No. 224547
Isabella Circuit Court
LC No. 99-008843-FH
ALVIN BROADUS STONE,
Defendant-Appellant.
Before: Cavanagh, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Defendant appeals as of right from his conviction, following a jury trial, of one count of
third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a) (sexual penetration with a
person at least thirteen years of age and under sixteen years of age). Defendant was sentenced as
a third habitual offender, MCL 769.11, to a term of thirteen to twenty years’ imprisonment. We
affirm.
Defendant first argues that the prosecutor improperly shifted the burden of proof by
questioning defendant’s failure to produce evidence to corroborate his claim of innocence and by
stating that defendant’s testimony was presumptively untruthful by virtue of his status as a
criminal defendant. We disagree.
The test for determining prosecutorial misconduct is whether the defendant was denied a
fair and impartial trial. People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
Issues of prosecutorial misconduct are decided on a case-by-case basis, and the reviewing court
must examine the pertinent portion of the record and evaluate the prosecutor’s remarks in
context. Id. The propriety of a prosecutor’s comments depend on the facts of an individual case.
People v Johnson, 187 Mich App 621, 625; 468 NW2d 307 (1991). Further, prosecutorial
comments must 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 Schutte, 240 Mich App 713,
721; 613 NW2d 370 (2000). Because defendant did not raise timely objections to the alleged
misconduct in the lower court, we review for plain error affecting defendant’s substantial rights.
Id. at 720.
As defendant recognizes in his brief on appeal, “[a] fundamental pillar of our legal
system is that a person is presumed innocent until proven guilty.” People v Rosales, 160 Mich
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App 304, 312; 408 NW2d 140 (1987). Accordingly, the prosecution may not shift its burden of
proving beyond a reasonable doubt that the defendant is guilty and obligate the defendant to
prove his innocence. Id. However, the prosecutor may argue on the basis of the facts of the case
that a witness is credible, or that the defendant or another witness is unworthy of belief. People v
Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997).
In the instant case, the prosecutor expressly acknowledged during closing argument that
the burden of proof regarding the elements of the charged offense lay with the prosecution.1
Moreover, a review of the prosecutor’s comments in context reveals that the prosecutor’s
argument hinged on discussing what was essentially a credibility contest between defendant and
the complainant. In this regard, the prosecutor noted that the complainant was worthy of belief
because her version of the pertinent events was corroborated by other witnesses at trial. In this
vein, the prosecutor further noted inconsistencies in defendant’s version of events, his motivation
to lie, and that his side of the story was not corroborated. Under the circumstances, we are not
persuaded that the prosecutor’s action constituted plain error affecting defendant’s substantial
rights.
Defendant next argues that the prosecutor improperly vouched for the complainant’s
credibility and highlighted defendant’s lack of credibility. We disagree. A prosecutor may not
vouch for the credibility of a witness to the extent that it is suggested that he has special
knowledge that the witness is testifying truthfully. People v Bahoda, 448 Mich 261, 276; 531
NW2d 659 (1995). However, as previously noted, a prosecutor may argue from the facts that the
defendant or another witness is not worthy of belief, and is not required to state inferences and
conclusions in the blandest possible terms. People v Launsburry, 217 Mich App 358, 361; 551
NW2d 460 (1996).
We are not persuaded that the challenged prosecutorial comments amounted to
impermissible vouching for the complainant’s credibility. The prosecutor did not suggest that he
had some special knowledge that the complainant was testifying truthfully. Moreover, the
comments were clearly made in response to defense counsel’s opening argument questioning the
complainant’s credibility and inferring that she was a liar. Further, the prosecutor properly
argued his position regarding the credibility of the witnesses in relation to his theory of the case
and on the basis of evidence presented during trial. Indeed, the challenged comments constituted
fair commentary on the evidence and inferences drawn therefrom. We therefore find no plain
error affecting defendant’s substantial rights. Schutte, supra at 722.
Defendant next argues that reversal is warranted because the prosecutor impermissibly
appealed to the jury’s sense of civic duty. We disagree. Although we recognize that prosecutors
are not permitted to resort to civic duty arguments to appeal to the jury’s fears and prejudices, we
must review such comments in context to determine if error requiring reversal occurred.
1
Moreover, the trial court specifically instructed the jurors that it was their duty to determine the
credibility of the witnesses and that the attorneys’ statements and arguments should not be
considered evidence. Jurors are presumed to follow the trial court’s instructions. People v
Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). The court also instructed that the burden of
proof lay with the prosecution and that it was the obligation of the prosecution to prove its case
to the jury beyond a reasonable doubt.
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Bahoda, supra at 282-283. In the present case, a review of the prosecutor’s rebuttal argument in
context reveals that it was responsive to defense counsel’s closing argument. For instance,
during his closing argument defense counsel discussed that defendant was a college student with
good grades. Defense counsel went on to emphasize defendant’s community work, the fact that
defendant volunteered to mentor students at a local school, and that he was well-liked and
popular with the students. In response, the prosecutor argued that defendant used his position of
trust as a mentor to develop his relationship with the complainant and groom her for a sexual
relationship. On this record, we do not agree with defendant that the prosecutor improperly
advanced a civic duty argument to appeal to the jurors’ fears and prejudices.
Defendant also essentially argues that the effect of several cumulative errors denied him
of his right to a fair trial. It is possible for the cumulative effect of a number of errors to
constitute error warranting reversal. People v Dilling, 222 Mich App 44, 56; 564 NW2d 56
(1997). However, in analyzing the effect of errors, only actual errors are accumulated to
determine any prejudicial effect. People v Rice (On Remand), 235 Mich App 429, 448; 597
NW2d 843 (1999).
To the extent that defendant argues that the prosecutor improperly referred to the fact that
defendant altered his birth date on his driver’s license, it is clear that the prosecutor did so only
as a method of impeaching defendant’s credibility. Moreover, during direct examination defense
counsel raised this issue as well, asking defendant whether he had altered his driver’s license.
Further, during cross-examination, in response to the prosecutor’s query whether defendant lied
to the complainant about his age, defendant responded that he was unsure whether he had.
Because defendant’s credibility was a central issue at trial, evidence concerning his attempts to
lie about his age were directly relevant to his credibility. Likewise, there is nothing in the record
to indicate that the jury was informed that altering a driver’s license is an offense, and the
evidence was not offered in violation of MRE 404(b)(1).
Similarly, to the extent that defendant suggests that the prosecutor engaged in misconduct
by attempting to introduce evidence concerning a police report the complainant’s father filed
against defendant, and that the complainant had sexual contact with defendant on occasions other
than the incident for which he was charged, there is no indication that the prosecutor sought to
introduce this evidence in bad-faith. “[P]rosecutorial misconduct cannot be predicated on goodfaith efforts to admit evidence.” People v Noble, 238 Mich App 647, 660; 608 NW2d 123
(1999).
Defendant also argues that his counsel was ineffective in failing to object to the
prosecutor’s questioning of various witnesses throughout trial. Defendant also maintains that
defense counsel introduced extrinsic evidence concerning the complainant’s father’s religious
background during the questioning of the witness.2 We have reviewed each of defendant’s
2
Defendant’s reliance on this Court’s recent decision in People v Leshaj, ___ Mich App ___;
___ NW2d ___ (Docket No. 223746, issued January 29, 2002) as support for his ineffective
assistance of counsel claim is misplaced. In Leshaj, this Court reversed the defendant’s
conviction of CSC III on the basis of prosecutorial misconduct. In Leshaj, the complainant
testified at length about her religious beliefs and convictions. During closing argument, the
prosecutor in Leshaj improperly vouched for the complainant’s credibility, “advising the jury
(continued…)
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allegations in this regard, and conclude that defendant has failed to overcome the well-settled
presumption that trial counsel’s actions were the product of sound trial strategy. People v
Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999); People v Avant, 235 Mich App 499, 507508; 597 NW2d 864 (1999).
Finally, in his supplemental brief filed with this Court on March 15, 2002, defendant
argues that his conviction of CSC III violates double jeopardy principles because it arose from
the same transaction as a previous civil action apparently filed by the complainant’s parents, as
well as a previous criminal matter where defendant apparently pled guilty to making harassing
phone calls. Moreover, defendant argues that his prosecution for CSC III was barred by
principles of collateral estoppel. Both issues are unpreserved because defendant did not raise
them in the lower court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
Further, our review of these issues is hindered by the lack of relevant documentation in the lower
court file. In this regard, defendant has improperly attempted to broaden the scope of the record
on appeal by including documentation not included in the lower court file. MCR 7.210(A)(1).
In any event, after reviewing each issue we are not persuaded that either has merit.
Specifically, we reject defendant’s claim that the CSC III conviction, the previous conviction and
the civil action arose from the “same transaction” or involved identical issues to the extent that
double jeopardy or collateral estoppel principles are applicable. People v White, 390 Mich 245,
258; 212 NW2d 222 (1973); Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 462
(2001); Eaton Co Bd of Rd Comm’rs v Schultz, 205 Mich App 371, 376-377; 521 NW2d 847
(1994). There is no indication that the previous conviction, the civil action and the CSC III
conviction leading to the present appeal, which arose from defendant’s performing oral sex on a
fifteen-year-old student that he met through a mentoring program at her school, were part of the
same criminal act, episode, or occurrence or involved identical issues. White, supra at 254;
Eaton Co, supra at 376-377.
Affirmed.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Peter D. O’Connell
(…continued)
that the complainant should be believed because of her Christian religious beliefs.” Id., slip op at
2. Because the case hinged on a credibility contest between the complainant and the defendant,
this Court ruled that the prosecutor’s misconduct denied the defendant of a fair trial.
In the instant case, a review of the record reveals that defense counsel inquired of the
complainant’s father about his occupation as a pastor. However, the complainant’s father did not
testify at length about his religious beliefs, and the prosecutor and defense counsel did not
subsequently argue that the complainant or her father were more credible than defendant because
of religious beliefs. Thus, Leshaj is distinguishable and does not provide a basis for reversal.
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