PEOPLE OF MI V JONATHAN FORD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2002
Plaintiff-Appellee,
v
No. 228537
Wayne Circuit Court
LC No. 98-012138
JONATHAN FORD,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and White, JJ.
PER CURIAM.
Defendant was convicted by a jury of two counts of armed robbery, MCL 750.529, and
possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced to
concurrent prison terms of 200 to 480 months for the armed robbery convictions and a
consecutive two-year term for the felony-firearm conviction. He appeals as of right, and we
affirm.
Defendant first argues that he was improperly convicted of two counts of armed robbery,
either because the two convictions violate the guarantee against double jeopardy, or because
there was insufficient evidence to support the second conviction. We disagree. The guarantee
against double jeopardy protects against multiple punishments for the same offense. People v
Wilson, 454 Mich 421, 427; 563 NW2d 44 (1997). In this case, a McDonald’s manager and an
employee were both ordered back inside the restaurant and held at gunpoint. The manager was
forced to open the safe, and defendant and co-defendant took the money that was inside.
On appeal, the prosecutor initially conceded that one of the armed robbery convictions
should be vacated on double jeopardy grounds, People v Wakeford, 418 Mich 95, 111; 341
NW2d 68 (1983), and argued that a conviction for assault with intent to rob while armed should
be entered in its stead. The prosecutor subsequently filed a supplemental brief withdrawing that
concession based on People v Rodgers, 248 Mich App 702; ___ NW2d ___ (2001), and People v
Davis, __Mich App __; __NW2d __ (Docket No. 229130, issued 4/9/02). We agree that
Rodgers is controlling. In Rodgers, the Court found no double jeopardy violation where the
defendant was convicted of three counts of armed robbery based on evidence that he assaulted
three employees of a muffler shop with a shotgun and took money from the cash drawer, which
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the store manager opened.1 The Rodgers Court upheld the three convictions based on the single
taking, concluding that the defendant’s right to possess the money was not superior to the
victims’, and that the money was taken from the presence of all three victims. The instant case
presents similar circumstances; under Rodgers there was sufficient evidence to sustain the
conviction with respect to the employee as well as the manager, and there is no double jeopardy
violation.
Defendant also argues that he was denied a fair trial because of several instances of
prosecutorial misconduct. Prosecutorial issues are decided case by case. People v Schutte, 240
Mich App 713, 721; 613 NW2d 370 (2000). This Court considers allegations of prosecutorial
misconduct in context to determine whether the defendant was denied a fair and impartial trial.
People v Reid, 233 Mich App 457, 466; 592 NW2d 767 (1999). Where no objection is raised
below, we review the issue for plain error affecting the defendant’s substantial rights. People v
Carines, 460 Mich 750, 766-767; 597 NW2d 130 (1999). No error requiring reversal will be
found if the prejudicial effect of the prosecutor’s comments could have been cured by a timely
instruction. Schutte, supra at 721.
First, defendant argues that the prosecutor deliberately elicited testimony that defendant
initially refused to make a statement to the police. Defendant moved for a mistrial on this basis.
The prosecutor explained that he did not intend to argue that defendant’s guilt could be inferred
from his refusal to give a statement; rather, he brought out that rights had been given, but no
statement had been made because defense counsel had informed him that she intended to bring
out the fact that defendant was asked for a statement three times, but only gave one statement.
The trial court agreed that the prosecutor made a “poor choice of words” in questioning the
witness, but denied defendant’s motion for a mistrial. In closing, defense counsel presented
argument regarding the circumstances under which defendant gave his statement, including that
three attempts were made by police to obtain a statement. The prosecutor responded,
acknowledging defendant’s right to talk or not talk as he pleased, and arguing that the
circumstances did not undermine the reliability of the statement. Defendant again moved for a
mistrial. The court noted that it could have “told the jury to strike” the prosecutor’s comments if
defendant had raised a timely objection and denied defendant’s motion.
Although we agree that the prosecutor’s question and comments may have been inartful,
we note that defendant did not testify, and there was no attempt to use defendant’s prior silence
for impeachment purposes. People v Dennis, 464 Mich 567, 577-578; 628 NW2d 502 (2001).
Any prejudice was dispelled by the trial court’s instruction that the arguments of the attorneys
are not evidence. Moreover, defendant made clear that he did not want a curative instruction,
only a mistrial. We conclude that a curative instruction could have cured any prejudice. Further,
it is clear from the record that the jury’s attention was not focused on any inference of guilt to be
drawn from defendant’s initial refusal to make a statement, but on the credibility of the statement
ultimately made, given the timing and circumstances of the statement. We find no reversible
error.
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The defendant attempted to obtain money from all three men directly, but the two employees
had no money. The opinion makes clear that the convictions were based on the defendant’s
taking money from the cash drawer.
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Defendant also argues that he was denied a fair trial because the prosecutor elicited
testimony that the police followed the sound of gunshots when they arrived on the scene. An
officer testified that he heard someone “jumping a fence” and then heard six gunshots. The
police followed the sound to a vacant house. They were then approached by someone who gave
them information. They then went to the house where defendant was arrested and evidence of
the crime was found. We agree that the testimony concerning the gunshots was unnecessary.
However, no evidence was admitted to link defendant to the gunshots, and the prosecutor did not
attempt to introduce the evidence to establish guilt, but rather to explain how the police ended up
at the house. Further, as the trial court noted, any prejudice caused by the testimony was
“cleared . . up” by defense counsel’s cross-examination of the witness, and the trial court also
offered a curative instruction. Defendant was not denied a fair and impartial trial on this basis.
Reid, supra.
Defendant further contends that the trial court abused its discretion in denying his motion
for a mistrial based on the evidence that a police officer pursued the sound of gunshots. This
Court will find an abuse of discretion only where the trial court’s denial of the motion deprived
defendant of a fair and impartial trial. People v Wolverton, 227 Mich App 72, 75; 574 NW2d
703 (1997). Defendant asserts that the prosecutor promised not to introduce evidence that
gunshots were fired without giving defendant an opportunity to challenge admission of the
testimony. The record establishes that the prosecutor told the court that he intended to introduce
the evidence that shots were fired but would not introduce evidence that they were fired at the
police officers, and that he would not mention the evidence in opening. The prosecutor should
have alerted the court when he reached the point that he intended to ask about the gun shots. On
the other hand, defendant should have objected immediately when the testimony was elicited. In
all events, because the evidence did not deprive defendant of a fair and impartial trial, the court
did not abuse its discretion in denying defendant’s request for a mistrial. Id.
Defendant also asserts that the prosecutor made numerous improper arguments during
rebuttal. None of the challenged remarks were objected to below. The prosecutor is not required
to use the “blandest possible terms” to state his inferences and conclusions. People v
Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Moreover, in light of the
eyewitness identification and defendant’s confession, we are not convinced that the challenged
comments, considered in context, require reversal. People v Bahoda, 448 Mich 261, 267; 531
NW2d 659 (1995). We find no plain error affecting defendant’s substantial rights. Carines,
supra.
Finally, defendant argues that he was denied a fair trial because of the cumulative effect
of the alleged errors. Because no errors have been found with regard to any of defendant’s
challenges, there can be no cumulative effect. People v Mayhew, 236 Mich App 112, 128; 600
NW2d 370 (1999).
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Helene N. White
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