PEOPLE OF MI V MARCUS DEON OGDEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 31, 2008
Plaintiff-Appellee,
v
No. 278372
Kalamazoo Circuit Court
LC No. 06-001566-FC
MARCUS DEON OGDEN,
Defendant-Appellant.
Before: Saad, C.J., and Fort Hood and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right his jury convictions of carrying a dangerous weapon with
unlawful intent, MCL 750.226, felon in possession of a firearm, MCL 750.224f, carrying a
concealed weapon (CCW), MCL 750.227, first-degree home invasion, MCL 750.110a(2), assault
and battery, MCL 750.81, criminal sexual conduct in the third degree, MCL 750.520d(1)(b),
cutting/tapping a telephone line, MCL 750.540, resisting and obstructing a police officer, MCL
750.81d(1), aggravated stalking, MCL 750.411i, and two counts of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b.1 We affirm. This appeal is
being decided without oral argument pursuant to MCR 7.214(E).
According to complainant, she and defendant began dating in January of 2006.
Defendant moved in with complainant in February. Toward the end of March she noticed that
defendant “had an aggressive side” and decided to end their relationship. Defendant moved out
in May, but they continued to see each other occasionally and to speak on the phone. On July 9,
2006, she left her house and found defendant standing next to a nearby tree. He lifted his shirt,
and complainant saw what appeared to be a pistol grip. He told her not to call the police.
Defendant came to her front porch, and she joined him. They spoke, and defendant began to
curse at her. He left five minutes later. He went across the street and again began to curse at her.
He pulled an object from his waistband, and complainant started to run away from the house.
She heard a gunshot as she reached the driveway. She ran to her neighbor’s home and called the
1
Defendant was acquitted of additional charges of felonious assault, MCL 750.82, felonyfirearm based on the assault, and assault with intent to murder, MCL 750.83.
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police. For the next few days, defendant continually called complainant and drove by her home,
but did not leave his car when she told him that she would call the police.
On July 12, 2006, complainant and her children returned from her neighbor’s home at
approximately 1:00 a.m. After she entered her home and locked the front door, she heard a noise
in her kitchen. She tried to reopen the door, but defendant slammed the door shut. He asked her
where she had been and told her to put the children to bed. She did so. Defendant then accused
her of having sex with another man. He made her disrobe, followed her to her living room, and
threw her on her bed. He straddled her chest and began to choke her. He held her down and had
vaginal intercourse with her. When he finished, he fell asleep. Later that morning, complainant
took one of her children to summer school and called the police from the parking lot. She
returned to her home. Defendant saw police officers arrive and ran out the back door of the
home. Defendant failed to stop in response to a police order to do so, but was apprehended.
On appeal, defendant raises three claims of ineffective assistance of counsel concerning
the use at trial of his previous felonious assault conviction. In order to preserve the issue of
ineffective assistance of counsel, a defendant must move for a new trial or a Ginther hearing,
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973), before the trial court. People v
Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005). If the defendant fails to preserve the issue,
appellate review is “limited to mistakes apparent on the record.” Id. “If the record does not
contain sufficient detail to support defendant’s ineffective assistance claim, then he has
effectively waived the issue.” People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002).
Because defendant did not move for a new trial or a Ginther hearing before the trial court, our
review of his ineffective assistance claim is limited to mistakes apparent on the record.
“Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law. A judge first must find the facts, and then must decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We review questions
of constitutional law de novo. Id.
“Effective assistance of counsel is presumed, and [a] defendant bears a heavy burden of
proving otherwise.” People v McGhee, 268 Mich App 600, 625; 709 NW2d 595 (2005). “In
order to overcome this presumption, defendant must first show that counsel’s performance was
deficient as measured against an objective standard of reasonableness under the circumstances
and according to prevailing professional norms.” Id. (internal citations omitted.) “Second,
defendant must show that the deficiency was so prejudicial that he was deprived of a fair trial
such that there is a reasonable probability that but for counsel’s unprofessional errors the trial
outcome would have been different.” Id.
Defendant argues that his counsel was ineffective for failing to object to an erroneous
jury instruction. The trial court instructed the jury, pursuant to CJI2d 3.4, that:
There is evidence that the defendant has been convicted of a crime in the
past. You may consider this evidence only in deciding whether you believe the
defendant is a truthful witness. You may not use it for any other purpose. A past
conviction is not evidence that the defendant committed the alleged crime in this
case.
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MRE 609 provides, in part, that the credibility of a witness may be attacked through presentation
of a prior conviction if that crime involved an element of dishonesty, false statement, or theft.
MRE 609(a). Because defendant’s prior conviction for felonious assault does not involve an
element of crime or dishonesty, the trial court’s instruction was erroneous.2
We agree with defendant that defense counsel should have objected to this instruction.
However, we find that defendant has not shown that he was provided ineffective assistance
because he has not established a reasonable probability that the outcome would have been
different but for counsel’s error. Strong evidence was introduced at trial that defendant
committed the crimes charged. This evidence included complainant’s testimony, the testimony
concerning the discovery of the spent shell casing where defendant was standing when he
allegedly fired at complainant, the DNA and other physical evidence supporting complainant’s
testimony about the sexual assault, defendant’s flight, and defendant’s letter to his current
girlfriend outlining his attempt to influence witness testimony and falsify an alibi.
We also note that a major purpose behind MRE 609 is the recognition that “the
relationship of the commission of a crime to veracity is often present only when seen through the
prejudicial conclusion that the witness-accused is of bad general character.” People v Allen, 429
Mich 558, 593; 420 NW2d 499 (1988). It was also designed in part to remove “the burden
placed upon truth finding when a defendant chooses not to testify out of fear of prior conviction
impeachment.” Id. at 603. See also MRE 609(b). In this case, however, the jury was already
permitted to discover the nature of defendant’s prior offense, because it formed an element of the
felon in possession charge, and defendant did not stipulate to the introduction of an unspecified
felony conviction. See People v Nimeth, 236 Mich App 616, 627; 601 NW2d 393 (1999);
People v Mayfield, 221 Mich App 656, 659-660; 562 NW2d 272 (1997).3 Defendant cannot
claim he suffered an improper testimonial burden due to the erroneous instruction. In addition,
the instruction correctly informed the jury that it could not use defendant’s prior conviction as
propensity evidence or as evidence that defendant committed any crime charged, other than felon
in possession. Thus, the major prejudicial effects of the introduction of defendant’s prior
conviction were properly addressed. While the trial court erroneously instructed the jury that it
could consider irrelevant evidence in deciding whether defendant was a credible witness, see
Allen, supra at 593-596, this does not rise to the level of outcome-determinative error. Other
prejudicial evidence was properly introduced that had a greater negative bearing on defendant’s
credibility, including his inculpatory written statements after his incarceration. Under the
circumstances, the possible contemplation of this irrelevant credibility evidence appears minor.
Based on the record before us, we cannot conclude defendant was prejudiced by counsel’s error.
2
The trial court’s instruction was also erroneous in that the jury could use this conviction
substantively to satisfy an element of the felon in possession charge. However, as this error
arguably ran to defendant’s benefit, we find that it is not a ground for reversal.
3
Defendant intimates that counsel’s failure to so stipulate was arguably improper. However,
because a stipulation could have left the jury wondering whether defendant had been convicted
of a more serious offense, the decision to not stipulate could be considered a valid trial tactic.
-3-
In a related issue, defendant appears to argue that counsel provided ineffective assistance
for failing to object to the trial court’s jury instruction on other acts evidence. However,
defendant does not develop this claim in any detail. “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. Such
cursory treatment constitutes abandonment of the issue.” People v Matuszak, 263 Mich App 42,
59; 687 NW2d 342 (2004) (quotations omitted). Thus, defendant has not provided a basis for
this Court to address this issue. We also note that the trial court’s instruction was generic and
was applicable to defendant’s other prior acts, including criminal acts, which were properly
introduced at trial. The instruction was not erroneous.
Defendant also asserts that the prosecutor improperly urged the jury to find that he was
guilty in the instant case because he had engaged in assaultive behavior in the past. The
prosecutor appears to have actually attempted to argue the opposite, in response to defense
counsel’s argument that the jury should disbelieve complainant’s testimony solely because she
had prior convictions for retail fraud and filing a false report. During closing arguments, defense
counsel stated:
Keep in mind we’re dealing with a person who testified for like several
hours–[complainant]–who is a liar, a convicted liar and a convicted thief. It’s not
that you folks have to determine whether or not she was convicted of those things;
she, in fact, was. That’s been determined. And you folks have to keep that in
mind. Once a liar, always a liar; once a thief, always a thief.
During rebuttal, the prosecutor responded:
Was [complainant] convicted on–I don’t know–six or seven years ago
when she was about 20 of telling the police a false statement? Yep. About 20
years old, she gave some kind of false statement. I don’t know what it was.
***
We’re not talking about who lied to the police seven years ago; we’re
talking about who’s lying to the jury today.
***
Defense counsel also made a statement, wow, she’s a proven liar: once a
liar, always a liar; once a thief, always a thief. Hmm, I don’t like that analogy. I
don’t know if I do.
Once somebody assaults with a weapon, they always assault with a
weapon? Are we going to carry the logic that far? If we are, he’s the one who’s
been convicted of assault with a dangerous weapon before.
The thrust of the prosecutor’s statements was that the fact that complainant had lied in her distant
past did not mean that she was lying about defendant’s assault. When the prosecutor’s
comments are considered in light of defendant’s arguments, People v Messenger, 221 Mich App
-4-
171, 181; 561 NW2d 463 (1997), they were arguably a proper, if perhaps somewhat inarticulate,
attempt to rehabilitate her witness, not a claim that the jury should find defendant guilty only
because he had a prior conviction. We find that defense counsel did not act objectively
unreasonably in choosing not to object. People v Moorer, 262 Mich App 64, 76; 683 NW2d 736
(2004). Moreover, even were we to determine that defense counsel should have objected to this
statement, we would nevertheless hold that defendant has not met his burden of proving
ineffective assistance. As noted above, the evidence of guilt was substantial. Also, the trial
court’s instruction quoted above correctly warned the jury to not use defendant’s prior conviction
as propensity evidence. In addition, defendant was acquitted of the charge of felonious assault,
the most similar charge to defendant’s prior conviction. This supports a finding that the jury did
not use defendant’s prior conviction as propensity evidence of defendant’s guilt in this case.
Under the circumstances, we find that defendant has not established ineffective assistance
of counsel.
Affirmed.
/s/ Henry William Saad
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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