PEOPLE OF MI V DAMON LASHONE MASON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 8, 2008
Plaintiff-Appellee,
v
No. 274620
Saginaw Circuit Court
LC No. 06-027007-FC
DAMON LASHONE MASON,
Defendant-Appellant.
Before: Fort Hood, P.J., and Talbot and Servitto, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of three counts of possession of a
firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b, one
count of felon in possession of a firearm, MCL 750.224f, one count of carrying a concealed
weapon, MCL 750.227, and one count of intentional discharge of a firearm from a motor vehicle,
MCL 750.234a. Defendant was sentenced as a habitual second offender, MCL 769.11, to
concurrent mandatory five-year sentences for the felony-firearm convictions to be served prior to
concurrent prison terms of 47 to 90 months for felon in possession of a firearm, 47 to 90 months
for carrying a concealed weapon, and 40 to 72 months for intentionally discharging a firearm.
We affirm.
I. Prosecutorial Misconduct
Defendant asserts that prosecutorial misconduct prevented him from receiving a fair trial.
Specifically, defendant contends that a reference during the prosecutor’s opening statement
identifying defendant as the shooter in the drive by shooting constituted misconduct based on the
failure to produce testimony at trial consistent with this statement. Defendant failed to object to
the prosecutor’s opening statement. When the misconduct alleged is not properly objected to,
this Court reviews a claim of prosecutorial misconduct for plain error affecting defendant’s
substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1990). Error
requiring reversal will not be found if a “curative instruction would have alleviated any
prejudicial effect.” People v Callon, 256 Mich App 312, 329-330; 662 NW2d 501 (2003).
It is a recognized precept that prosecutors have “great latitude regarding their arguments
and conduct.” People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Opening
statements comprise the proper time for a prosecutor to state the facts that counsel believes will
be proven at trial. MCR 6.414(C); People v Moss, 70 Mich App 18, 32; 245 NW2d 389 (1976).
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Contrary to defendant’s contention the prosecutor elicited testimony at trial from Officer Trace
Vargas that during her interview of the victim, Earl Morris, at the crime scene that he identified
defendant as the shooter. Even though the victim later denied having made this identification,
the prosecutor was within his right to set forth his theory of the case based on evidence that was
produced at trial. In addition, the trial court instructed the jury that statements and arguments by
the attorneys did not constitute evidence. Because jurors are presumed to follow their
instructions, this directive from the trial court would have eliminated any potential for prejudice
to defendant. People v Dennis, 464 Mich 567, 581-582; 628 NW2d 502 (2001).
Next, defendant argues that the prosecutor committed misconduct by leading a witness
and introducing a line of questioning that was irrelevant. The test for prosecutorial misconduct is
whether a defendant was denied an impartial and fair trial. People v Rice (On Remand), 235
Mich App 429, 434; 597 NW2d 843 (1999) (citation omitted). “Prosecutorial misconduct issues
are decided case by case, and the reviewing court must examine the pertinent portion of the
record and evaluate a prosecutor's remarks in context to determine whether the defendant was
denied a fair and impartial trial.” Id. at 435 (citation omitted).
During trial, the prosecutor called Morris to testify regarding his observation of the
events that occurred. Morris became uncooperative during questioning. Consequently, the
prosecutor began asking leading questions, to which defendant’s attorney objected. The
prosecutor asked the court for “a little latitude” and requested that he be allowed to treat Morris
as a hostile witness. The trial court agreed and allowed the questioning to proceed.
Initially, we note that defendant fails to cite any legal authority to support his claim that
the prosecutor's use of leading questions constituted misconduct necessitating the reversal of
defendant’s convictions. “An appellant may not merely announce his position and leave it to this
Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment
[of an issue] with little or no citation of supporting authority.” People v Kelly, 231 Mich App
627, 640-641; 588 NW2d 480 (1998). Defendant's failure to cite any supporting legal authority
constitutes an abandonment of this issue. People v Matuszak, 263 Mich App 42, 59; 687 NW2d
342 (2004) (citation omitted).
In addition, the record does not support defendant’s contention that the prosecutor acted
improperly. Pursuant to MRE 607, “[t]he credibility of a witness may be attacked by either
party, including the party calling the witness.” The prosecutor was attempting to get Morris to
acknowledge that he had spoken with Officer Vargas at the scene and had identified defendant as
the shooter. Morris became hostile and denied being familiar with any of the officers or that he
provided Officer Vargas with information pertaining to defendant. It therefore became necessary
for the prosecutor to lead Morris in order to elicit and highlight his prior inconsistent statements.
Ultimately, Morris acknowledged that he had received threats regarding his testimony. Reading
the record in context, we believe the prosecutor acted properly in trying to demonstrate to the
jury the factors that were inhibiting Morris’s willingness to testify about what he had told Officer
Vargas at the crime scene. Further, reversal is not required merely because leading questions
were asked during trial. To warrant reversal, “it is necessary to show some prejudice or pattern
of eliciting inadmissible testimony.” People v White, 53 Mich App 51, 58; 218 NW2d 403
(1974). See also People v Hooper, 50 Mich App 186, 196; 212 NW2d 786 (1973). Because
defendant has not demonstrated prejudice, reversal is not required.
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Defendant also contends that the prosecutor acted improperly by vouching for Morris’s
credibility. “A prosecutor may not vouch for the credibility of witnesses by claiming some
special knowledge with respect to their truthfulness.” People v McGhee, 268 Mich App 600,
630; 709 NW2d 595 (2005), citing Bahoda, supra at 276. However, contrary to defendant’s
assertion, the prosecutor never vouched for Morris or claimed to have any special knowledge
regarding his credibility. Rather, the prosecutor merely used prior inconsistent statements given
by Morris in an attempt to secure this witness’s admission that he was nervous because of threats
he had received in order to provide the jury with a comprehensive background for their
evaluation of this testimony. Viewing the challenged statements and questions in their complete
context, we find that prosecutorial misconduct did not occur.
II. Admission of Testimony
Defendant argues the trial court abused its discretion by admitting the testimony of
Officer Vargas regarding Morris’s identification of him as the shooter pursuant to MRE 803(2).
We review preserved evidentiary issues for an abuse of discretion. People v Farquharson, 274
Mich App 268, 271; 731 NW2d 797 (2007). “An abuse of discretion occurs when the trial
court's decision falls outside the range of reasonable and principled outcomes.” People v
Shahideh, 277 Mich App 111, 118; 743 NW2d 233 (2007). On appeal, defendant also contends
that the admission of this testimony was improper under MRE 801(d)(1)(B) as a prior consistent
statement.
Defendant’s assertion in his brief that the testimony was inadmissible as hearsay because
it did not meet the requirements of MRE 801(d)(1)(B) as a prior consistent statement is both
nonsensical and misplaced. Admission of the challenged testimony was not pursued under this
rule. Defendant implies on appeal that admission of the testimony violated his rights under the
Confrontation Clause1 based on the testimonial nature of the statement. Crawford v Washington,
541 US 36, 59; 124 S Ct 1354; 158 L Ed 2d 177 (2004). However, the Confrontation Clause
guarantee is typically implicated when a witness is unavailable for cross-examination at trial.
Crawford, supra at 59; People v Katt, 468 Mich 272, 292 n 12; 662 NW2d 12 (2003). Defendant
conveniently ignores the availability of Morris for cross-examination and that he was specifically
questioned by defense counsel regarding his statement to police. To the extent defendant implies
that the failure of Morris to recall or acknowledge his conversation with Vargas, frustrated or
impeded his right to confront this witness, we note the Court’s prior opinion indicating that the
Confrontation Clause does not
guarantee every witness called by the prosecution will refrain from giving
testimony that is marred by forgetfulness, confusion or evasions. To the contrary,
the Confrontation Clause is generally satisfied when the defense is given a full
and fair opportunity to probe and expose these infirmities through crossexamination, thereby calling to the attention of the factfinder the reasons for
giving scant weight to the witness’ testimony. [United States v Owens, 484 US
1
US Const, Am VI.
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554, 558; 108 S Ct 838; 98 L Ed 2d 951 (1988), quoting Delaware v Fensterer,
474 US 15, 21-22; 106 S Ct 292; 88 L Ed 2d 15 (1985).]
We note that the trial court stated at the time of defendant’s objection to the questioning
that it would admit the testimony to be elicited under MRE 803(1) as a present sense impression.
However, at sentencing the trial court indicated that it admitted the testimony pursuant to MRE
803(2) as an excited utterance and, in his appellate brief, defendant challenges it under this
provision of the evidentiary rules.
Hearsay is defined as a statement, other than made by a declarant while testifying, offered
to prove the truth of the matter asserted. MRE 801(c). In general, hearsay evidence is not
admissible unless it meets an exception delineated by the rules of evidence. MRE 802; People v
McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). MRE 803(2) provides, in relevant part:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
***
(2) Excited Utterance. A statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition.
As a result, there are “two primary requirements for excited utterances: 1) that there be a
startling event, and 2) that the resulting statement be made while under the excitement caused by
the event.” People v Smith, 456 Mich 543, 550; 581 NW2d 654 (1998). In accordance with
prior decisions of this Court, “[t]here is no express time limit for excited utterances.” People v
Walker, 265 Mich App 530, 534; 697 NW2d 159 (2005), vacated in part and remanded 477 Mich
856 (2006). Rather, MRE 803(2) “focuses on the lack of capacity to fabricate, not the lack of
time to fabricate.” Id. at 534.
In this instance, the prosecutor laid a proper foundation for admission of the statement by
Morris to police. The record indicates that Officer Vargas arrived at the scene within one hour of
the events and within five minutes of being dispatched to the crime scene. When she arrived,
Morris acknowledged that he was present at the time of the shooting. Officer Vargas testified
that Morris was “excited” and that “he was fidgety, [and] moving around” and that she “worked
hard at trying to calm him down enough to get information.” Based on the wide discretion
provided to a trial court in determining whether a declarant remained under the stress of an
event, Walker, supra at 534, we find that the trial court did not abuse its discretion in admitting
the victim’s statements pursuant to MRE 803(2).
Next, defendant argues Officer Vargas’s testimony regarding statements made by his
cousin constituted hearsay. Initially, we would note that it was defense counsel who elicited
testimony from Officer Vargas during cross-examination pertaining to information obtained from
defendant’s cousin. As a result, defendant has waived any challenge to the admission of this
testimony. See People v Jones, 468 Mich 345, 352 n 6; 662 NW2d 376 (2003). In addition, the
trial court has indicated that it admitted the detective’s testimony regarding statements by this
individual, not for their truth, but to demonstrate and explain the subsequent actions taken by
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police in their investigation. As a result, the statement did not constitute hearsay. See People v
McAllister, 241 Mich App 466, 470; 616 NW2d 203 (2000).
III. Great Weight of the Evidence
Defendant next asserts the trial court did not give due consideration to his argument
concerning the great weight of the evidence and, thus, improperly denied his motion for a new
trial on that ground. We review a trial court’s decision to grant or deny a new trial, based on the
great weight of the evidence, for an abuse of discretion. People v McCray, 245 Mich App 631,
637; 630 NW2d 633 (2001). A trial court “may grant a new trial only if the evidence
preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the
verdict to stand.” People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998). In addition,
“absent exceptional circumstances, issues of witness credibility are for the jury, and the trial
court may not substitute its view of the credibility for the constitutionally guaranteed jury
determination thereof.” Id. at 642 (citation and internal quotation marks omitted).
Defendant contends the testimony elicited from Officer Vargas did not confirm beyond a
reasonable doubt that he was the shooter or driving the car from which the shots were fired.
Defendant argues that Morris ran away during the shooting and did not see the shooter and that
at trial Morris denied recognizing defendant or confirming his address, cell phone number,
license plate number, or the make and model of his automobile, which he allegedly provided to
police.
“The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” People v Musser, 259 Mich App 215, 218-219; 673
NW2d 800 (2003). Here, the evidence did not preponderate against the jury's verdict. The
prosecutor asked Morris questions on the stand to illustrate to the jury that Morris was scared to
testify about what he had told Officer Vargas after the shooting occurred. Officer Vargas
testified that Morris identified defendant, his car, his birth date, his cell phone number, and the
vehicle license plate. Officer Vargas testified that she collected shell casings from the roadway
and off defendant’s automobile windshield wipers. In addition, Officer Vargas and another
officer discovered and confiscated a gun in defendant’s car that was tucked between the seat and
the armrest. The prosecutor presented the gun, spent shells, and photographs of the vehicle with
the gun inside and shells on the windshield wipers to the jury as evidence.
Issues pertaining to witness credibility were for the jury to determine. Musser, supra at
219. Nothing in the record indicates it was unreasonable for the jury to believe Officer Vargas’s
testimony regarding the evidence secured through her investigative efforts and the statements
made to her by Morris. Accordingly, the trial court did not abuse its discretion by denying
defendant's motion for a new trial. See People v Lueth, 253 Mich App 670, 680; 660 NW2d 322
(2002).
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IV. Blakely Violation2
Relying on Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004),
defendant asserts the trial court engaged in improper judicial fact finding when determining his
sentence. Specifically, defendant argues the trial court violated Blakely by sentencing defendant
as though he had been convicted of assault with intent to commit murder, even though he was
acquitted of these charges. We would note that defendant’s assertion of error regarding the
lower court’s original sentencing determination is precluded as Michigan’s sentencing scheme
has been held to be unaffected by Blakely based on Michigan’s use of an indeterminate
sentencing scheme. People v Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006); People v
Claypool, 470 Mich 715, 730 n 14; 684 NW2d 278 (2004). Accordingly, we reject defendant’s
challenge to the scoring of the offense variables on this ground.
Defendant has also asserted entitlement to re-sentencing by an alternative judge. Based
on our determination that defendant has failed to demonstrate error by the trial court in
sentencing defendant, coupled with defendant’s failure to provide any legal authority in support
of his request for reassignment, we find that this issue has been abandoned on appeal. “An
appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with
little or no citation of supporting authority.” Kelly, supra at 640-641.
V. Offense Variable Scoring Errors
Finally, defendant argues that at sentencing, the trial court improperly scored certain
offense variables (OVs). Specifically, defendant contends the trial court engaged in improper
fact finding when it scored the challenged variables as though defendant has been convicted of
the charges that he acted with intent to commit murder even though the jury acquitted him of
these charges. Issues concerning the proper scoring of sentencing guidelines variables are
reviewed for an abuse of discretion. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700
(2002). “[A]n abuse of discretion standard acknowledges that there will be circumstances in
which there will be no single correct outcome; rather, there will be more than one reasonable and
principled outcome.” People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). The
factual findings by a trial court pertaining to its sentencing determination are reviewed for clear
error. MCR 2.613(C). A scoring decision by a trial court will be upheld if there exists any
evidence in the record to support it. People v Kegler, 268 Mich App 187, 190; 706 NW2d 744
(2005).
At the outset we note that the argument set forth by defendant is relatively
indistinguishable from his assertions regarding the trial court’s violation of Blakely, which we
have already addressed and rejected, supra. In addition, although defendant asserts scoring
errors regarding OV 1, OV 9, OV 10 and OV 14, he fails to delineate or define the asserted error
other than to vaguely suggest that the trial court improperly considered inaccurate information in
2
Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004).
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their scoring.3 Based on defendant’s cursory treatment of this issue, we find that he has
effectively abandoned it on appeal. Matuszak, supra at 59.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Michael J. Talbot
/s/ Deborah A. Servitto
3
We note that a review of the sentencing transcript in this matter does verify that defendant
objected to the scoring of OV 1, OV 9 and OV 10. However, we assume that defendant’s
assertion of error, on appeal, regarding the scoring of OV 14 is misplaced as this offense variable
was scored at zero. The sentencing information report does indicate a scoring of ten points on
OV 13, which was objected to by defendant at the time of sentencing.
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