PEOPLE OF MI V JAMES ALLEN ROSS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 24, 2002
Plaintiff-Appellee,
v
No. 227964
St. Clair County
LC No. 99-002685-FH
JAMES ALLEN ROSS,
Defendant-Appellant.
Before: Smolenski, P.J., and Neff and White, JJ.
PER CURIAM.
Defendant appeals by right his jury trial conviction of three counts of felonious assault,
MCL 750.82, and one count of assault with intent to do great bodily harm, MCL 750.84.
Defendant was sentenced as a second habitual offender, MCL 769.10, to concurrent sentences of
twenty-four to seventy-two months’ imprisonment for the felonious assault convictions, and
forty-seven months’ to fifteen years’ imprisonment for the assault with intent to do great bodily
harm conviction. We affirm.
Defendant first contends that the trial court erred in allowing testimony regarding the plea
of defendant’s accomplice without sua sponte providing a cautionary instruction, and that the
prosecutor committed misconduct in inquiring whether the accomplice had pleaded guilty to the
offense. Because these claims were not preserved, our review is limited to plain, outcome
determinative error. People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). We find
no such error.
When an accomplice testifies in a defendant accomplice’s trial, and has been granted
leniency in exchange for his testimony, the prosecutor must disclose the consideration given to
the accomplice on the defendant’s request. People v Kincade, 162 Mich App 80, 84; 412 NW2d
252 (1987). Here the accomplice’s testimony was not helpful to the prosecution; his testimony
differed sharply from the prosecution’s other witnesses. If anything, the accomplice provided
exculpatory evidence for defendant. Because the record indicates that the prosecution did not
grant the accomplice leniency in exchange for testimony adverse to defendant, there was nothing
to disclose to the jury, and no error occurred in failing to inquire into the consideration given to
-1-
the accomplice. People v Crawl, 401 Mich 1, 34-35; 257 NW2d 86 (1977); Kincade, supra.
Further, there is no indication that defendant was unaware of the terms of the accomplice’s plea.1
Nor did the prosecutor commit misconduct in inquiring into the accomplice’s plea.
Generally, evidence of the conviction of an accomplice is inadmissible in the trial of a defendant
accomplice; the admission of an accomplice’s guilty plea as substantive evidence of a
defendant’s guilt is error requiring reversal. Id. at 84-85. However, the guilty plea of an
accomplice is admissible for purposes of impeachment or rehabilitation of a witness. People v
Manning, 434 Mich 1, 14; 450 NW2d 534 (1990). The prosecution may impeach its own
witness, MRE 607. While the prosecutor asked the questions on direct, defendant did not object,
and the questions were permissible impeachment in anticipation of the accomplice’s testimony
on cross examination, during which the accomplice gave testimony favorable to defendant and
inconsistent with the statement made at his plea. People v Dowdy, 211 Mich App 562, 571-572;
536 NW2d 794 (1995).
Similarly, we find that the trial court was not obligated to sua sponte instruct the jury
regarding the use of an accomplice’s testimony. It may be error for a trial court to fail to give a
sua sponte jury instruction regarding accomplice testimony if the issue is closely drawn. People
v McCoy, 392 Mich 231, 237, 240; 220 NW2d 456 (1974). The present case does not fall under
McCoy because it was not closely drawn and a finding of guilt did not rest on the accomplice’s
credibility.
Defendant next alleges that he received ineffective assistance of counsel. We disagree.
Because no errors occurred, any objections would have been futile or frivolous, and thus there
are no grounds to establish ineffective assistance of counsel. People v Tullie, 141 Mich App
156, 158-159; 366 NW2d 224 (1985); People v Chinn, 141 Mich App 92, 98; 366 NW2d 83
(1985). Defendant has failed to defeat the presumption that counsel’s treatment was sound trial
strategy. People v Williams, 240 Mich App 316, 331-332; 614 NW2d 647 (2000).
Similarly, we find sufficient evidence in the record to support the trial court’s flight
instruction. People v Johnson, 171 Mich App 801, 804; 430 NW2d 828 (1988). We also
conclude that the prosecution presented sufficient evidence of each element of assault with intent
to do great bodily harm, MCL 750.84, to allow a rational jury to find defendant guilty beyond a
reasonable doubt. People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d 907
(1993); People v Smith, 152 Mich App 756, 761; 394 NW2d 94 (1986).
Defendant finally challenges the sentence imposed by the trial court. Trial courts must
impose sentences within the limits set by the Legislature. People v Hegwood, 465 Mich 432,
437; 636 NW2d 127 (2001). There is no appellate review of sentences falling within the range
1
The record shows that twice during trial defendant was offered, but declined, almost the same
plea agreement his accomplice received, which undermines defendant’s claim of error on appeal.
Both during the presentation of the prosecution’s case and at the close of proofs, defendant
declined the prosecution’s offer to plead no contest to one count of assault with intent to do great
bodily harm, with a recommended maximum sentence of six months, in jail and dismissal of the
habitual offender charge.
-2-
specified by the legislative guidelines absent scoring errors or inaccurate information. People v
Babcock, 244 Mich App 64, 73; 624 NW2d 479 (2000) (Babcock I); MCL 769.34(10).
Sentences falling outside the legislative guidelines require reversal and remand for resentencing
unless substantial and compelling reasons exist for the departure. People v Babcock, ___ Mich
App ___ ; ___ NW2d ___ (Docket No. 235518, issued March 19, 2002) (Babcock II), slip op p
2; Babcock I, supra at 74. In addition, the factors underlying the departure must be objective and
verifiable. Babcock II, supra, at 2; Babcock I, supra at 75.
This Court reviews a trial court’s determination that the objective and verifiable factors
constitute substantial and compelling reasons to depart from the legislative minimum sentence
for an abuse of discretion. Id. at 76. The existence or nonexistence of a particular factor is a
factual determination reviewed for clear error. Id. at 75-76. Whether the factors articulated by
the trial court are objective and verifiable is reviewed de novo, as a matter of law. Id. at 76.
We find that the trial court articulated a substantial and compelling reason for a
departure, defendant’s violent behavior—the violence with which defendant perpetrated the act.
Although this is accounted for in MCL 777.33, the trial court expressly found that the statutory
sentencing guidelines did not adequately address that factor.2 A court may base a departure on
an offense or offender characteristic already taken into account in the guidelines sentence range
if the court finds from the facts that the characteristic has been given inadequate weight. MCL
769.34(3); Babcock II, supra at 2. The trial court had a valid legal reason to impose an upward
departure.
Affirmed.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Helene N. White
2
It should also be noted that defendant had seventeen prior misdemeanor convictions, only seven
of which were taken into account in the calculation of the sentencing guidelines and that of the
seventeen prior convictions four were for assaultive crimes, one was for the unlawful discharge
of a firearm, and one was for fleeing and eluding.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
