PEOPLE OF MI V TOMMIE JAMES EZELL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 19, 2002
Plaintiff-Appellee,
V
No. 229369
Kent Circuit Court
LC No. 99-009706-FC
TOMMIE JAMES EZELL,
Defendant-Appellant.
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted as charged of armed robbery, MCL
750.529, first-degree home invasion, MCL 750.110a(2), felon in possession of a firearm, MCL
750.224f, and possession of a firearm during commission of a felony, MCL 750.227b.
Defendant was sentenced as a second habitual offender, MCL 769.11, to concurrent sentences of
22½ to 75 years’ imprisonment on the armed robbery conviction, 17½ to 40 years’ imprisonment
on the first-degree home invasion conviction, 3 to 8 years’ imprisonment on the felon in
possession of a firearm conviction, and a consecutive two-year sentence on the felony-firearm
conviction. Defendant appeals as of right. We affirm.
Defendant and a partner broke into a residence in Grand Rapids, where they assaulted
and robbed Marvin Trotter and Michael Kukawski. Defendant asserted at trial that the robbery
was a hoax, concocted by Trotter, and that Trotter and Kukawski were beaten because the
robbery had to look real. Defendant stated that Trotter owed drug money to a local gang and
thought that the debt would be forgiven if the gang knew that Trotter had been robbed.
Defendant testified that he went along with the plan because Trotter threatened to tell one of the
gang members that defendant had identified him to the police in connection with a murder.
On appeal, defendant first argues that this case should be remanded for a Ginther1
hearing in order to take the testimony of his trial counsel. However, on November 20, 2001, we
denied defendant’s motion for remand for this same purpose and defendant has presented no
basis for reconsideration of that decision. Therefore, we turn to the merits of defendant’s
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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ineffective assistance of counsel claim; our review is limited to the facts on the record. People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).2
The right to counsel guaranteed by the United States and Michigan Constitutions, US
Const, Am VI; Const 1963, art 1, § 20, is the right to effective assistance of counsel. United
States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Pubrat, 451
Mich 589, 594; 548 NW2d 595 (1996). To establish ineffective assistance of counsel, a
defendant must show (1) that counsel’s performance was below an objective standard of
reasonableness under prevailing professional norms, and (2) that there is a reasonable probability
that, but for counsel’s error, the result of the proceedings would have been different. Cronic,
supra, at 657; People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Effective assistance
of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). A defendant can overcome the
presumption by showing that counsel failed to perform an essential duty and that the failure was
prejudicial to the defendant, People v Stubli, 163 Mich App 376, 379; 413 NW2d 804 (1987), or
by showing a failure to meet a minimum level of competence, People v Jenkins, 99 Mich App
518, 519; 297 NW2d 706 (1980).
Defendant asserts that his trial counsel was ineffective because she failed to call a witness
who would have corroborated the defense theory that the armed robbery was a hoax. According
to affidavits submitted below, the witness would have testified that on the night of the robbery,
he overheard a conversation between defendant and Trotter in which Trotter told defendant to
“come through the side door and make it look good.” The witness would have also testified that
he asked Trotter what the conversation was about and that Trotter responded, “Nothing, just
something we’ve got going on tonight.”
The failure to call a particular witness at trial is presumed to be a matter of trial strategy,
and an appellate court will not substitute its judgment for that of counsel in a matter of trial
strategy. People v Avant, 235 Mich App 499, 508; 597 NW2d 864 (1999). Here, it is apparent
from the record that defendant’s trial counsel knew of the existence of the witness. However,
defendant does not assert that his trial counsel refused to call the witness, who, at the time of trial
was incarcerated for a felony conviction, against defendant’s desires. Moreover, while the
witness’ testimony could be construed as corroborative of defendant’s theory, it was ambiguous
and not exonerating. Given the credibility issues stemming from the witness’ criminal history
and the ambiguous nature of the proposed testimony, we conclude that defendant has not
overcome the presumption that not calling the witness constituted sound trial strategy.
Therefore, we hold that defendant was not denied effective assistance of counsel on that ground.
Defendant next argues that several remarks made by the prosecutor during closing
argument denied defendant a fair trial and violated his due process rights. Because defendant
failed to object to the challenged comments below, we review these claims for outcome
determinative plain error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999); People
v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial misconduct issues are
2
Because we conclude that a remand is unwarranted, we will not address defendant’s argument
that a different judge should hear the remand.
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decided on a case-by-case basis, and the reviewing court must examine the pertinent portion of
the record and evaluate a prosecutor’s remarks in context. Watson, supra. “‘No error requiring
reversal will be found if the prejudicial effect of the prosecutor’s comments could have been
cured by a timely instruction.’” Id., quoting People v Schutte, 240 Mich App 713, 721; 613
NW2d 370 (2000).
Defendant first asserts that the prosecutor impermissibly shifted the burden of proof to
defendant when she argued that the defense had failed to offer sufficient evidentiary support for
its theory that the robbery was a hoax. We disagree.
When a defendant advances a theory in defense of the charges, a prosecutor’s comment
upon a defendant’s failure to call a witness who supports that theory merely points out the
weakness of the defendant’s case and does not shift the burden of proof because a defendant
cannot be convicted on the basis that he failed to affirmatively prove his defense; thus, due
process is not offended. People v Fields, 450 Mich 94, 112; 538 NW2d 356 (1995). Here, in
making the challenged remarks, the prosecutor was simply commenting on defendant’s failure to
call supporting witnesses. Accordingly, the prosecutor’s remarks were not improper.
Defendant also argues that the prosecutor impermissibly misrepresented facts when she
stated that defendant concocted the hoax theory only after the prosecution refused to give him
“the deal he wanted.”3 Although a prosecutor may argue reasonable inferences from the
evidence, she may not mischaracterize the evidence. Watson, supra at 588. Here, we agree that
the prosecutor’s statement mischaracterized the evidence because defendant testified that he told
police when he was arrested that the robbery was a hoax and two officers on the scene testified
that they heard defendant state the same. However, because a cautionary instruction prompted
by an objection below would have cured any prejudicial effect of the prosecutor’s statement,
defendant is not entitled to relief on this claimed error. Id. at 586. In any event, we are satisfied
that the trial court’s instruction to the jury that the arguments of the attorneys are not evidence
dispelled the minimal prejudice that may have arisen from this isolated comment. See, e.g.,
Schutte, supra at 721-722.
Defendant next contends that the prosecutor impermissibly called defendant a liar.
However, a prosecutor may argue from the facts that the defendant or another witness is not
worthy of belief. People v Launsburry, 217 Mich App 358, 361; 551 NW2d 460 (1996). Here,
in making the challenged comment, the prosecutor essentially attacked defendant’s credibility by
arguing that, based on the evidence presented by the prosecution to the jury, defendant’s theory
of the case was not believable. Accordingly, we find no error in challenged remarks. In any
event, although repeated expressions in closing argument that convey the prosecutor’s opinion
that a defendant is lying can be error mandating reversal, see People v Thangavelu, 96 Mich App
3
Although defendant also contends that this statement was improper because “the prosecutor
[spoke] from [her] own knowledge of facts regarding the policy of making a deal with the
defendant,” defendant has failed to brief the merits of that claim. Accordingly, we decline to
address the matter. See Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) (“It is
not enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, . . . and then search
for authority either to sustain or reject his position.”).
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442, 452; 292 NW2d 227 (1980), we note that, here, the challenged remark was an isolated
incident the prejudicial effect of which, if any, could have been cured by a cautionary instruction.
Watson, supra.
Finally, defendant asserts that the prosecutor impermissibly argued that defendant lied
about having a gun during the incident. In making this argument, however, defendant
mischaracterizes the prosecutor’s statements. The prosecutor stated that defendant told the
police that he was wearing the holster to scare people. The prosecutor then argued that the
implication of defendant’s explanation was that defendant was trying to indicate to the police
that he really did not have a gun with him. A prosecutor may argue the evidence and draw
reasonable inferences from it. People v Kelly, 231 Mich App 627, 641; 588 NW2d 480 (1998).
Accordingly, we conclude that the prosecutor’s argument was proper and that, therefore,
defendant was not denied a fair trial as a result of prosecutorial misconduct.
We affirm.
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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