PEOPLE OF MI V DAVID PETROCCA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 16, 2002
Plaintiff-Appellee,
v
No. 229443
Oakland Circuit Court
LC No. 00-172006-FH
DAVID PETROCCA,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Jansen and Wilder, JJ.
PER CURIAM.
Defendant was convicted by a jury of third-degree fleeing or eluding a police officer,
MCL 750.479a(3), and resisting or obstructing a police officer, MCL 750.479. He was
sentenced to twelve months’ probation. He appeals as of right. We affirm.
Defendant argues that trial counsel was ineffective. Because there is no indication in the
record that defendant raised the issue of ineffective assistance of counsel in an appropriate
motion in the trial court, our review of this issue is limited to mistakes apparent from the record.
People v Randolph, 242 Mich App 417, 422; 619 NW2d 168 (2000). When asserting a claim of
ineffective assistance of counsel, the burden is on the defendant to show that counsel made
serious errors that prejudiced the defense and deprived the defendant of a fair trial. People v
Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997). There is a strong presumption that
counsel’s conduct was reasonable. Id. This Court will not substitute its judgment for that of trial
counsel in matters of trial strategy. People v Avant, 235 Mich App 499, 508; 597 NW2d 864
(1999). Further, this Court will not assess counsel’s competence with the benefit of hindsight.
People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
Here, defendant contends that counsel was ineffective by failing to call defendant’s
neighbor, who allegedly would have testified that he heard tires screeching and saw police cars
pull up to defendant’s residence, and that none of the police cars had their lights or sirens
activated. Defendant asserts that trial counsel intended to introduce the neighbor’s testimony but
failed to take appropriate steps to advise him that he should appear. Even accepting defendant’s
assertions as true, the credibility of the neighbor as a witness is not apparent from the record.
Further, the neighbor did not observe either of the alleged crimes and his purported testimony
that the police cars were not flashing lights or using sirens in the subdivision was cumulative to
the testimony of defendant and defendant’s sister. Defendant has not established that counsel’s
alleged error prejudiced the defense. Mitchell, supra.
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Defendant also contends that counsel was ineffective in failing to challenge, at a pretrial
proceeding, whether the police cars were “clearly marked.” Although defendant asserts that this
issue should have been raised in a motion before trial, defense counsel did raise the challenge in
his motion for a directed verdict and the trial court determined that the adequacy of the police car
markings was a question for the jury. There is no indication that a pretrial motion would have
produced a different result. Thus, defendant has not shown that defense counsel’s alleged error
prejudiced the defense. Id.
Defendant also argues that the trial court abused its discretion in admitting into evidence
a videotape reenactment of the police chase route. Evidence is generally admissible if it is
relevant, MRE 401, and if its probative value is not “substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” MRE 403. Photographic
evidence is admissible if it is substantially necessary or instructive to show material facts or
conditions. People v Anderson, 209 Mich App 527, 536; 531 NW2d 780 (1995). Here, upon
questioning by the trial court, the officer testified that the videotape “fairly and accurately”
depicted the police Camaro as it appeared while looking out the back window of another car, that
it showed the route that the officer testified to, that it depicted the lights and siren that the officer
testified were activated, but that it did not show the speeds that the officer testified to. The
appearance of the police Camaro as it was pursuing a vehicle was at issue in this case, and the
video showing what the Camaro looked like with lights and sirens activated would have been
instructive to the jury. We find no abuse of discretion.
Finally, defendant contends that he was denied a fair trial because of prosecutorial
misconduct. Prosecutorial misconduct issues are decided case by case. People v Schutte, 240
Mich App 713, 721; 613 NW2d 370 (2000). This Court considers alleged prosecutorial
misconduct in context to determine whether it denied defendant a fair and impartial trial. People
v Reid, 233 Mich App 457, 466; 592 NW2d 767 (1999). A prosecutor may not infringe on a
defendant’s right not to testify, and a defendant has no burden to produce any evidence, but once
a defendant advances evidence or a theory, argument on the inferences created does not shift the
burden of proof. People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995).
During closing argument, defense counsel referred to the police officers in this case as
“cowboys” with “too much adrenaline.” In response, the prosecutor made the remarks
challenged on appeal, arguing to the jury that it was common sense that the police had to have
some reason for going to defendant’s house, and that defendant had not given any reasonable
explanation. Defense counsel objected and the trial court stopped the comments and remarked
that “you can’t shift the burden of proof.”
In his trial testimony, defendant admitted seeing a blue Camaro at some point, but
testified that to his “knowledge” he was not speeding, that he had no idea he was being followed
by a police car, that he saw no lights and heard no siren. It was not unreasonable for the
prosecutor to ask the jury to consider why, under those circumstances, several police cars
converged at defendant’s house and followed him inside. Even if the jury had accepted
defendant’s version of the events at the house, the question why the police were there remained.
The burden of proof was not shifted by the prosecutor’s suggestion that defendant’s version of
events did not make sense. When a defendant makes an issue legally relevant, the prosecutor is
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not prohibited from commenting on the improbability of the defendant’s theory or evidence. Id.
Defendant was not denied a fair trial because of the prosecutor’s remarks.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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