PEOPLE OF MI V JAMEL ANDRE STOKES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 17, 2007
Plaintiff-Appellee,
v
No. 269345
Macomb Circuit Court
LC No. 2005-001295-FH
JAMEL ANDRE STOKES,
Defendant-Appellant.
Before: Bandstra, P.J., and Zahra and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of third-degree criminal
sexual conduct, MCL 750.520d(1)(d), and fourth-degree criminal sexual conduct, MCL
750.520e(1)(a). He was sentenced as an habitual offender, second offense, MCL 769.10, to
concurrent prison terms of 87 months to 30 years each for the third-degree CSC convictions, and
23 months to 4 years for the fourth-degree CSC conviction. He appeals as of right. We affirm.
I
Defendant’s convictions arise from the sexual assault of his 13-year-old next-door
neighbor in February 2005. The victim was home alone because school was cancelled. She was
outside shoveling snow when she encountered defendant, who asked to borrow her shovel. After
returning the shovel, defendant made sexually suggestive comments and invited the victim back
to his home to smoke marijuana. At his home, defendant engaged the minor in sexual
intercourse and other sexual acts. The victim told her best friend of the sexual encounter, and
ultimately, the victim’s mother learned of the acts and called police.
At trial, defendant denied ever having met the victim. He testified that he was at work
the entire day of the incident, except when he left with another coworker to pick up a car. In
support of his defense, he presented alibi witnesses to support his testimony, including his wife
and co-workers.
II
Defendant first argues that there was insufficient evidence to sustain his convictions. We
disagree. When ascertaining whether sufficient evidence was presented at trial to support a
conviction, this Court must view the evidence in a light most favorable to the prosecution and
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determine whether a rational trier of fact could find that the essential elements of the crime were
proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748,
amended 441 Mich 1201 (1992). Circumstantial evidence and reasonable inferences arising
from the evidence can constitute satisfactory proof of the elements of the crime. People v
Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996). “[A] reviewing court
is required to draw all reasonable inferences and make credibility choices in support of the jury
verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
As applicable to this case, the elements of third-degree CSC are that the defendant
engaged in sexual penetration with another person, and the other person was at least 13 and
under 16 years of age. MCL 750.520d(1)(a). “Sexual penetration” is defined to mean “sexual
intercourse, . . . or any other intrusion, however slight, of any part of a person’s body or of any
object into the genital or anal openings of another person’s body. . . .” MCL 750.520a(p). A
person is guilty of fourth-degree CSC if the person engages in sexual contact with another person
and that other person is at least 13 years of age but less than 16 years of age, and the actor is five
or more years older than that other person. MCL 750.520e(1)(a). MCL 750.520a(o) provides
that “sexual contact” includes “the intentional touching of the clothing covering the immediate
area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be
construed as being for the purposes of sexual arousal or gratification.” See People v Piper, 223
Mich App 642, 647; 567 NW2d 483 (1997). “Intimate parts” includes “the primary genital
area.” MCL 750.520a(d).
Defendant does not challenge the individual elements of the offenses. Rather, he argues
that the evidence was insufficient because the prosecution witnesses were not credible and there
was no physical evidence to corroborate the victim’s testimony. Defendant’s argument requires
this Court to ignore the victim’s testimony and resolve credibility issues anew on appeal. It is
well established that absent compelling circumstances, which are not present here, the credibility
of witnesses is for the jury to determine. See People v Lemmon, 456 Mich 625, 642; 576 NW2d
129 (1998), and Wolfe, supra at 514. Furthermore, contrary to what defendant argues, there is no
requirement that physical evidence or eyewitnesses corroborate the victim’s testimony. Rather, a
victim’s uncorroborated testimony is sufficient to convict a defendant of CSC. MCL 750.520h;
Lemmon, supra at 632 n 6.
Viewed in a light most favorable to the prosecution, the victim’s testimony was sufficient
to establish that defendant engaged in both sexual penetration and sexual contact with her,
contrary to MCL 750.520d(1)(a) and MCL 750e(1)(a).1 The “sexual penetration” element of the
two third-degree CSC convictions was satisfied by the victim’s detailed testimony that defendant
digitally penetrated her vagina, and then put his penis into her vagina as the two engaged in
sexual intercourse. The “sexual contact” element for the fourth-degree CSC conviction was
satisfied by the victim’s testimony that defendant rubbed her vaginal area over her jeans.
1
There is no dispute that the victim was 13 years old and defendant was more than five years
older than her at the time of the incident.
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In addition to the victim’s testimony, defendant’s parole officer testified that defendant
admitted to having sexual intercourse with the victim, and defendant’s description to his parole
officer was essentially identical to the victim’s version of the incident. Further, defendant’s
coworker, Thompson, testified that defendant left work on the afternoon of the incident and later
returned with a video game. Defendant could not provide any explanation of how the victim
knew about him picking up a video game that he took back to work, and denied giving her that
information. The victim also provided an accurate description of the inside of defendant’s house,
although defendant denied ever meeting her.
From this evidence, the jury could reasonably conclude that defendant sexually assaulted
the victim. Although defendant presented an alibi, it was up to the jury to determine whether
that account was credible. Nowack, supra. The evidence was sufficient to sustain defendant’s
convictions of two counts of third-degree CSC and one count of fourth-degree CSC.
III
Defendant argues, in the alternative, that his convictions are contrary to the great weight
of the evidence. We disagree. Because defendant failed to preserve this issue by raising it in a
motion for a new trial, we review the issue for plain error affecting substantial rights. People v
Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004); People v Musser, 259 Mich App 215, 218;
673 NW2d 800 (2003).
In evaluating whether a verdict is against the great weight of the evidence, the question is
whether the evidence preponderates heavily against the verdict so that it would be a miscarriage
of justice to allow the verdict to stand. Lemmon, supra at 627. A verdict may be vacated only
when it “does not find reasonable support in the evidence, but is more likely to be attributed to
causes outside the record such as passion, prejudice, sympathy, or some extraneous influence.”
People v DeLisle, 202 Mich App 658, 661; 509 NW2d 885 (1993) (citation omitted).
Conflicting testimony and questions regarding the credibility of witnesses are not sufficient
grounds for granting a new trial. Lemmon, supra at 643. Indeed, “unless it can be said that
directly contradictory testimony was so far impeached that it ‘was deprived of all probative value
or that the jury could not believe it,’ or contradicted indisputable physical facts or defied physical
realities, the trial court must defer to the jury’s determination.” Id. at 645-646 (citation omitted).
For the reasons discussed in part II, the verdict is not against the great weight of the
evidence. The evidence does not clearly preponderate so heavily against the verdict that a
miscarriage of justice would result if the verdict was allowed to stand. Id. at 627. Consequently,
this claim does not warrant reversal.
IV
Defendant further argues that the trial court erred when it admitted the statements that he
allegedly made to a police officer and his parole officer. Defendant argues that the statements
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were involuntary because, although he was in custody when he made the statements, he had not
been advised of his Miranda2 rights.
Because defendant did not move to suppress his statement to the police officer or object
to its admissibility at trial, we review this claim for plain error affecting substantial rights.
Kimble, supra. Although defendant did not file a pretrial motion to suppress his statement to his
parole officer, the matter was raised and argued on the first day of trial, and the trial court ruled
on the issue. Therefore, this issue is preserved. Whether a defendant’s statement was knowing,
intelligent, and voluntary is a question of law that a court evaluates under the totality of the
circumstances. People v Cheatham, 453 Mich 1, 27, 44; 551 NW2d 355 (1996). The trial
court’s findings of fact will not be disturbed unless they are clearly erroneous. People v Sexton
(After Remand), 461 Mich 746, 751-752; 609 NW2d 822 (2000).
Statements of a defendant made during a custodial interrogation are inadmissible unless
the defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights.
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); People v Abraham,
234 Mich App 640, 644; 599 NW2d 736 (1999). However, “[i]t is well established that Miranda
warnings need be given only in situations involving custodial interrogation.” People v Zahn, 234
Mich App 438, 449; 594 NW2d 120 (1999). A custodial interrogation is a questioning initiated
by law enforcement officers after the accused has been taken into custody or otherwise deprived
of his freedom of action in any significant way. Id. Interrogation “refers to express questioning
and to any words or actions on the part of the police that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” People v Anderson, 209 Mich App
527, 532-533; 531 NW2d 780 (1995) (citation omitted).
The first statement that defendant challenges occurred while the arresting officer was
booking him at the police station. The arresting officer testified that he overheard defendant
mutter, “He could not believe a five-minute mistake was going to ruin the rest of his life.” There
is no dispute that defendant had not received his Miranda warnings before he made this
statement. But there is no indication that the officer asked defendant any questions or performed
any other action to induce the statement. Thus, defendant’s statement was not the product of
custodial interrogation, but was volunteered. Statements made voluntarily by suspects in custody
do not fall within the purview of Miranda, and are admissible. People v Raper, 222 Mich App
475, 479; 563 NW2d 709 (1997). Consequently, there was no plain error in admitting this
statement. Kimble, supra.
Defendant also challenges his statement to his parole officer. Again, there is no dispute
that defendant’s parole officer did not advise defendant of his Miranda rights. But the Miranda
requirement is inapplicable here because defendant’s parole officer was not a police officer
conducting a custodial interrogation. “A person who is not a police officer and is not acting in
concert with or at the request of the police is not required to give Miranda warnings before
eliciting a statement.” Anderson, supra at 533. At the preliminary examination and at trial, the
parole officer indicated that at the time of defendant’s statement, he was not a police officer, but
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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was acting independently from the police, that he went to visit defendant as part of his job as a
parole officer, and that his only reason for speaking to defendant was to advise him of parole
violation charges, to advise him of his right to a preliminary hearing on those charges, and to
determine if he would agree to waive the hearing. He further testified that the police were not
aware that he was interviewing defendant. Consequently, the trial court did not err in admitting
the statement.
V
Defendant argues that he was denied his constitutional right to a speedy trial because the
prosecution delayed his trial for 251 days. We disagree.
Because defendant did not formally demand a speedy trial, this issue is not preserved.
People v Cain, 238 Mich App 95, 111; 605 NW2d 28 (1999). Therefore, this Court reviews this
unpreserved issue for plain error affecting defendant’s substantial rights. Kimble, supra.
A criminal defendant has a constitutional and statutory right to a speedy trial. “In
determining whether a defendant has been denied a speedy trial, four factors must be balanced:
(1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his
right to a speedy trial, and (4) prejudice to the defendant from the delay.” People v Mackle, 241
Mich App 583, 602; 617 NW2d 339 (2000) (citations omitted).
The first factor, the length of delay, does not favor a finding of a speedy trial violation.
The delay period commences at the arrest of the defendant. People v Williams, 475 Mich 245,
261; 716 NW2d 208 (2006). Defendant was arrested on March 9, 2005, and trial commenced on
January 6, 2006. The total time between defendant’s arrest and trial was less than 18 months.
“A delay that is under eighteen months requires a defendant to prove that the defendant suffered
prejudice.” Cain, supra at 112.
With respect to the second factor, in assessing the reasons for the delay, this Court must
examine and attribute each period of delay to either the prosecution or the defendant. See People
v Gilmore, 222 Mich App 442, 460-461; 564 NW2d 158 (1997). Despite defendant’s conclusory
assertion that a delay of 251 days is chargeable to the prosecution, the record discloses that the
largest delay was attributable to the defense.
As previously indicated, defendant was arrested on March 9, 2005. On April 25, 2005,
defendant discharged his attorney. On May 31, 2005, the case was remanded to district court for
a preliminary examination. Defendant obtained new counsel on July 7, 2005. On that same date,
the preliminary examination was held. In his brief, defendant concedes that “[t]he period
between April 25, 2005, and July 7, 2005, was acknowledged to be charged to the Defendant.”
Defendant was arraigned in circuit court on August 8, 2005. Defendant and the prosecutor
thereafter stipulated to adjourn the scheduled trial date of October 26, 2005, because “the parties
have not yet received the report on hair and semen evidence submitted to the Michigan State
Police laboratory,” and “defense attorney requests more time to file motion(s) in this matter.”
Trial was rescheduled for November 30, 2005. On November 30, 2005, defense counsel failed
to appear, causing an additional adjournment. On December 6, 2005, defense counsel filed a
motion to withdraw as counsel, and defendant was appointed new counsel on December 12,
2005. Ultimately, a pretrial hearing was held on December 19, 2005, and trial commenced on
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January 6, 2006. Although there were reasons for additional delays, those periods were not
significant. Under these circumstances, this factor weighs against defendant.
With respect to the third factor, the assertion of the speedy trial right, this Court looks at
when the defendant asserted the right and when trial took place in relation to the assertion. See
Cain, supra at 113-114. As previously indicated, defendant failed to timely assert his right to a
speedy trial, which “weighs against a finding that he was denied a speedy trial.” People v
Wickham, 200 Mich App 106, 112; 503 NW2d 701 (1993).
With regard to the fourth factor, there are two types of prejudice: prejudice to the person
and prejudice to the defense. Gilmore, supra at 461-462. The latter prejudice is the more crucial
in assessing a speedy trial claim. Williams, supra at 264. Defendant does not sufficiently argue
that his incarceration during the delay prejudiced his person. Gilmore, supra at 462 (prejudice to
the person consists of the deprivation of a defendant’s civil liberties). Defendant states that he
suffered from “anxiety, depression, stress and mental anguish” because of his confinement in
jail. But anxiety alone is insufficient to establish a violation of the right to a speedy trial.
Gilmore, supra.
Prejudice to the defense must meaningfully impair a defendant’s ability to defend against
the charges against him in such a manner that the outcome of the proceeding will likely be
affected. People v Adams, 232 Mich App 128, 134-135; 591 NW2d 44 (1998). Here, there is no
indication that the delay adversely affected defendant’s ability to defend the charges. Defendant
notes that he “suffered the natural loss of the recollection of events as a result of the lengthy
delay,” and lost “valuable witnesses . . . who would have testified that he engaged in no criminal
behavior.” But general allegations of prejudice caused by delay, such as the unspecified loss of
evidence or memory, are insufficient to show that his defense was affected. Gilmore, supra;
People v Cooper, 166 Mich App 638, 655; 421 NW2d 177 (1987). Furthermore, defendant has
not identified what witnesses were lost, or what specific beneficial testimony they could have
provided. In short, defendant has failed to show that any potential witness favorable to the
defense or that other exculpatory evidence was lost due to the delay in bringing defendant to
trial. Consequently, defendant’s claim of prejudice to his defense lacks merit. In sum, when
balancing the relevant factors, defendant’s right to a speedy trial was not violated.
VI
Defendant also argues that a new trial is required because defense counsel was
ineffective. Defendant alternatively argues that remand is necessary to enable him to develop
this claim. We disagree. Because defendant failed to raise this issue in the trial court in
connection with a motion for a new trial or an evidentiary hearing, this Court’s review is limited
to mistakes apparent on the record. People v Sabin (On Second Remand), 242 Mich App 656,
658-659; 620 NW2d 19 (2000).
Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To
establish ineffective assistance of counsel, a defendant must show that counsel’s performance
was below an objective standard of reasonableness under prevailing norms and that the
representation so prejudiced the defendant that there is a reasonable probability that, but for
counsel’s error, the result of the proceedings would have been different. Id.
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Defendant argues that defense counsel was ineffective for failing to file a pretrial motion
to suppress his statements to the police and his parole officer. Although defense counsel did not
file a pretrial motion to suppress defendant’s statement to his parole officer, the matter was
raised and addressed by the trial court on the first day of trial. Moreover, in light of our
conclusion in part IV that both statements were admissible, a pretrial motion to suppress would
have been futile. Consequently, defendant cannot establish a claim of ineffective assistance of
counsel. See People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000) (counsel is not
required to advocate a meritless position).
We reject defendant’s argument that defense counsel was ineffective for failing to object
to references that he was on parole. References to defendant’s parole status were made in
connection with his parole officer’s testimony regarding the statements that defendant made to
him concerning this crime. As indicated previously, the matter was raised and addressed by the
trial court. Therefore, it is highly probable that had defense counsel objected during trial, it
would have been futile. In addition, as a result of defense counsel’s arguments, the trial court
prohibited the parole officer from introducing evidence of the crimes for which defendant was
placed on parole, and limited the parole officer’s testimony to those statements defendant made
in response to the alleged parole violation, i.e., the crimes at issue in this case. The court also
instructed the jury regarding the proper use of evidence that defendant had been convicted of a
crime in the past for which he was not on trial. Under these circumstances and given the weight
of the evidence produced at trial, no reasonable likelihood exists that defendant would not have
been convicted but for trial counsel’s failure to object. Effinger, supra.
Defendant further argues that defense counsel was ineffective for failing to object to
testimony that defendant “ceased talking to the police and asked for an attorney.” During the
prosecutor’s examination of the arresting officer, the following exchange occurred:
Q. And what did you do then?
A. We took him to the interview room in the booking area, read him his - - I read
him his rights from a Clinton Township from. Upon reading his rights, he
stated he wanted an attorney and the interview was ceased at that point.
Q. And did you do anything else with respect to the investigation or did it end
there?
A. I was done with it. I had nothing else to do with it.
Defendant correctly notes that testimony concerning a defendant’s post-arrest, postMiranda silence is inadmissible. People v Crump, 216 Mich App 210, 214; 549 NW2d 36
(1996). However, the response was an unsolicited answer to an open-ended question about what
occurred next in the investigation, and not patently designed to elicit the improper testimony.
Although defense counsel did not object to the testimony, defendant has not overcome the
presumption that defense counsel’s failure to object was reasonable trial strategy. Given the
brief and isolated reference, defense counsel may have reasonably determined that an objection
would have drawn more attention to the improper testimony. People v Bahoda, 448 Mich 261,
287 n 54; 531 NW2d 659 (1995). This Court will not substitute its judgment for that of counsel
regarding matters of trial strategy, even if counsel was ultimately mistaken, nor will it assess
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counsel’s competence with the benefit of hindsight. People v Rice (On Remand), 235 Mich App
429, 444-445; 597 NW2d 843 (1999). Moreover, given the weight of the evidence produced at
trial, no reasonable likelihood exists that the brief reference affected the outcome of the case.
Effinger, supra.
For these reasons, we reject defendant’s claim that defense counsel was ineffective and
are not persuaded that a remand is necessary.
Affirmed.
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
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