PEOPLE OF MI V CURTIS JERMAINE FULLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 26, 2004
Plaintiff-Appellee,
v
No. 248948
Chippewa Circuit Court
LC No. 00-007006-FC
CURTIS JERMAINE FULLER,
Defendant-Appellant.
Before: Murphy, P.J., and Sawyer and Markey, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to commit
murder, MCL 750.83, and assault with intent to do great bodily harm less than murder, MCL
750.84. Defendant was sentenced to life imprisonment on the assault with intent to commit
murder conviction and six to ten years’ imprisonment on the assault with intent to do great
bodily harm conviction.1 We affirm.
Defendant first argues that he was denied his right to a speedy trial. We disagree. A
defendant’s right to a speedy trial is guaranteed by the United States and Michigan constitutions
as well as by statute. US Const, Am VI; Const 1963, art 1, § 20; MCL 768.1. A claim that a
defendant has been denied his right to a speedy trial raises a constitutional issue that we review
de novo. People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). Four factors must be
balanced to determine whether a defendant was denied a speedy trial: (1) length of the delay; (2)
reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) the
prejudice to the defendant because of the delay. Barker v Wingo, 407 US 514, 530; 92 S Ct
2182; 33 L Ed 2d 101 (1972); People v Hill, 402 Mich 272, 283; 262 NW2d 641 (1978).
The delay in this case was over eighteen months, so it is presumed prejudicial. People v
Wickham, 200 Mich App 106, 109; 503 NW2d 701 (1993). The “presumptively prejudicial
delay triggers an inquiry into the other factors to be considered in the balancing of the competing
interests to determine whether a defendant has been deprived of the right to a speedy trial.” Id. at
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At the time of the incident giving rise to this prosecution, defendant was an inmate at the
Chippewa Correctional Facility. The sentences imposed for the convictions at hand are to be
served consecutive to the sentences imposed on the prior prosecution.
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109-110. Here, approximately eight and one-half months of the delay are attributable to
defendant’s stipulations to adjourn the trial date. Moreover, there were various motions filed by
defendant and a substitution of defense counsel, both of which weigh against defendant. Cain,
supra at 113. Further, defendant never asserted his right to a speedy trial in the lower court.
Defendant’s failure to timely assert his right to a speedy trial “weighs against a finding that he
was denied a speedy trial.” Id. at 112. As for the issue of prejudice, we note that defendant was
not incarcerated in anticipation of this trial; rather, he was already in prison for unrelated
offenses when the events surrounding the present prosecution occurred, and he continued to
serve the sentence imposed in the prior matter thereafter. In addition, the record does not show
that any evidence was lost or that his defense suffered at trial because of the delay. Id.
(observing that prejudice can be to a defendant’s person and to a defendant’s defense).
Defendant argues that it is probable that the delay resulted in the trial witnesses becoming
entrenched in their beliefs regarding the identities of the assailants, thereby increasing the
likelihood of conviction. However, general allegations of possible prejudice are insufficient to
establish a denial of the right to a speedy trial. People v Gilmore, 222 Mich App 442, 462; 564
NW2d 158 (1997). After balancing the four factors, we determine that defendant was not denied
his right to a speedy trial.
Defendant next argues that the trial court should have granted his motion for additional
peremptory challenges and his motion for a change of venue. We disagree. We review a denial
of motions for additional peremptory challenges and for a change of venue for an abuse of
discretion. People v Howard, 226 Mich App 528, 536; 575 NW2d 16 (1997); People v DeLisle,
202 Mich App 658, 662; 509 NW2d 885 (1993).
Defendant claims that he was denied a fair trial because after exhausting all of his
peremptory challenges, he was forced to be judged by a jury taken from a community with a
close affiliation to the corrections system. A trial court may grant additional peremptory
challenges on a showing of good cause. MCR 6.412(E)(2). The trial court excused for cause
from the venire all potential jurors with demonstrated bias or prejudice towards defendant.
Defendant has not shown that anyone placed on the jury was actually biased or prejudiced
toward defendant before trial began. For example, one of the seated jurors stated that he knew
one of the proposed witnesses and that he would believe the witness above others. However, the
juror then acknowledged that if the witness’ testimony was contradicted, the juror could look at
the testimony objectively. In addition, the juror stated that he did not have any preconceived
notions and could sit as an impartial juror. Similarly, another juror whose brother worked at
Kinross Correctional Facility and who himself worked at a store that corrections officers
frequented, stated that he could be impartial in this case. These two jurors were not challenged
for cause. Defendant has failed to show good cause warranting additional peremptory
challenges, and minimally there was no abuse of discretion.
We also reject defendant’s claim that the court erred in denying his motion for a change
of venue. “It is the general rule that defendants must be tried in the county where the crime is
committed. An exception to the rule provides that the court may, in special circumstances where
justice demands or statute provides, change venue to another county.” People v Jendrzejewski,
455 Mich 495, 499-500; 566 NW2d 530 (1997). “[T]o be entitled to a change of venue, the
defendant must show that there is either a pattern of strong community feeling against him and
that the publicity is so extensive and inflammatory that jurors could not remain impartial when
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exposed to it,” or “that the jury was actually prejudiced or the atmosphere surrounding the trial
was such as would create a probability of prejudice.” People v Passeno, 195 Mich App 91, 98;
489 NW2d 152 (1992), overruled on other grounds by conflict panel in People v Bigelow, 229
Mich App 218; 581 NW2d 744 (1998). Defendant does not argue that there was extensive
pretrial publicity in the instant case. Additionally, there was not a high percentage of members
of the venire who admitted to disqualifying prejudice in this case. DeLisle, supra at 669. Of the
jurors excused for cause, only one stated that he already had preconceived notions regarding
defendant. While several others had connections with the Department of Corrections, they were
excused not because they expressed that they were biased, but because they expressed concern
on how their relationships would be impacted following the trial’s conclusion. Because
defendant has failed to show a strong community feeling against him or that the jury was actually
prejudiced against him, we conclude that the trial court did not abuse its discretion in denying
defendant’s motion for a change of venue.
Defendant next argues that the trial court erred in admitting photographs of injuries to
officers he was not charged with assaulting. We review a trial court’s admission of photographic
evidence for an abuse of discretion. People v Anderson, 209 Mich App 527, 536; 531 NW2d
780 (1995). “All relevant evidence is admissible, except as otherwise provided” by law. MRE
402. Relevant evidence “means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” MRE 401. Arguably, the photographs in issue helped the jury
better understand the circumstances surrounding the incident, including the planned nature of the
attacks. Under MRE 403, relevant evidence “may be excluded if its probative value is
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.” Considering the great deference given to the trial court on evidentiary
issues, we conclude that the court did not abuse its discretion in failing to find that the
photographs’ probative value was substantially outweighed by the danger of unfair prejudice.
Moreover, assuming error, the error was harmless as it did not undermine the reliability of the
verdict, nor result in a miscarriage of justice. MCL 769.26; People v Lukity, 460 Mich 484, 495;
596 NW2d 607 (1999).
Defendant also claims that the prosecutor exaggerated the evidence against defendant and
argued facts not in evidence. We review these unpreserved claims of prosecutorial misconduct
for plain error affecting defendant’s substantial rights. People v Schutte, 240 Mich App 713,
720; 613 NW2d 370 (2000), abrogated on other grounds Crawford v Washington, ___ US ___;
124 S Ct 1354; 158 L Ed 2d 177 (2004).
“Prosecutors may not make a statement of fact to the jury that is unsupported by the
evidence, but they are free to argue the evidence and all reasonable inferences arising from it as
they relate to the theory of the case.” Schutte, supra at 721. Despite defendant’s claims, the
prosecutor’s arguments were supported with testimony at trial, either by direct eyewitness
testimony and reasonable inferences arising therefrom or testimony related to review of the
surveillance video by witnesses with knowledge of those involved in the altercation. Defendant
also argues that his trial counsel was ineffective for failing to object to the prosecutor’s closing
argument. However, as we have just concluded, the prosecutor’s closing argument was proper
and supported by the evidence. Therefore, counsel was not ineffective because an attorney is not
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obligated to make futile objections. People v Milstead, 250 Mich App 391, 401; 648 NW2d 648
(2002).
Finally, we reject defendant’s argument that the court abused its discretion in denying his
motion for a mistrial. People v Ortiz-Kehoe, 237 Mich App 508, 512; 603 NW2d 802 (1999).
Defendant argues that a mistrial should have been granted because the court erred in admitting a
statement he made as he was being placed in the prison’s segregation unit. Specifically,
defendant argues that because the statement was nothing but propensity evidence, it was
admitted in violation of MRE 401, 402, 403, and 404(b). Testimony was presented that as
defendant was being taken to the segregation unit, he yelled, “I’m in for killing a cop.” While
MRE 404(b)(1) prevents the use of propensity evidence, the prosecutor here was not introducing
evidence of other crimes, wrongs, or acts. Defendant was not incarcerated for killing a cop but
was in prison for assault with intent to do great bodily harm less than murder, felonious assault,
and felony-firearm. Thus, the statement did not reference defendant’s previous conviction, but
more likely the incident that gave rise to the present prosecution. Further, the trial court
instructed the jury that defendant was not in prison for killing anyone, let alone a police officer.
The trial court did not abuse its discretion by denying defendant’s motion for mistrial.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Jane E. Markey
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