PEOPLE OF MI V VINCENT DARNELL CAPITO JR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 23, 2008
Plaintiff-Appellee,
v
No. 275907
Oakland Circuit Court
LC No. 2006-208991-FC
VINCENT DARNELL CAPITO, JR.,
Defendant-Appellant.
Before: Davis, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assault with intent to murder, MCL
750.83. Defendant was sentenced to 15 to 30 years’ imprisonment. Defendant appeals as of
right. We affirm.
In May 2006, Merle Dean, Ophelia Jones and Ayanna Clark were at work at the T.G.I.
Friday’s Restaurant in Farmington Hills. While Dean was working in the kitchen, he had a
verbal confrontation with Jones. According to Dean, the confrontation began when Jones told
him and other members of the kitchen staff to shut up. Jones claimed that the dispute started
when Dean pushed the brim of her hat down in a way that caused her pain and then threatened to
have his girlfriend beat her up. Dean also allegedly mocked Jones’s glasses as being out of style.
Following the conversation with Dean, Jones told Clark about the altercation. Clark then
confronted Dean and another verbal confrontation resulted. During the confrontation, Clark told
Dean that she was going to have some individuals come to the restaurant and that Dean was
going to die. Later, three men came to the restaurant, and one asked to speak with Dean. Dean
explained the situation to the man, and no violence occurred. The group of men left.
The following day, Dean, Jones and Clark were again working at the restaurant.
According to Dean, when he arrived at 5:00 p.m., he passed by Clark, who told him that he was
going to die that day. Later, Jones and Clark gave Dean the impression that people were coming
to the restaurant to confront him. Three men later arrived at the restaurant. One of the men was
wearing a white shirt, one wearing a blue shirt and one wearing a red shirt. Dean identified the
man in the white shirt as defendant, and stated that the other two men were Talonnie Russell and
Kenneth Thornton. When Dean walked out of the kitchen, he observed Clark point at him while
she was speaking to the three men. Dean then went and told Brian Toro, a manager, that Clark
had called people to come to the restaurant for him. Toro told him to punch out and go home.
-1-
As Dean was going to punch out, defendant approached him and began to throw punches
at him. Dean began to fight back, and was subsequently aided by his brother, Antoine Dean, a
fellow employee. The fight took the men into the kitchen, where Russell and Thornton began to
throw glassware at employees. Dean found himself on top of defendant. Raymond High, one of
Dean’s coworkers, grabbed Dean and began to pull him from defendant. While Dean’s arms
were constrained by High, Dean began to feel pain. Dean looked down, and saw defendant was
stabbing him in the stomach with a serrated knife. Defendant then fled. Dean raised his shirt,
and observed that his intestines were coming out of his stomach. Dean suffered life-threatening
injuries, and is no longer able to work.
Defendant first contends that the prosecutor denied him a fair trail when he unilaterally
decided to strike Ayanna Clark from his witness list. We disagree. Pursuant to MCL
767.40(a)(4), a prosecutor may add to, or delete from, his witness list “upon leave of the court
and for good cause shown or by stipulation of the parties.” See People v Perez, 469 Mich 415,
420; 670 NW2d 655 (2003). On the first day of trial, the prosecution produced Clark, and
moved to strike her from its witness list. Defendant's attorney stated:
No problem, your Honor. The only concern that I have is I imagine we’ll have to
have an attorney appointed for Ms. Clark in light of the fact the prosecutor has
gave [sic] some indication that they may attempt to try to charge her as a
conspirator of some sort. I don’t know what charge, but that might be a concern
so that we may have to appoint counsel for Ms. Clark prior to her taking the stand
as a defense witness if we so proceed. [Emphasis added.]
The defense did not subsequently call Clark to testify, although it did later indicate that it was
“disappointed” that the prosecution did not first consult the defense before striking Clark and
several other witnesses. But when the trial court asked defense counsel whether she was asking
for the prosecution to be forced to call Clark or produce Clark, she stated that she was not.
Because defendant affirmatively approved striking Clark from the witness list, the issue is
waived, and any error is extinguished. People v Dobek, 274 Mich App 58, 65; 732 NW2d 546
(2007).
Defendant next contends he was denied the effective assistance of counsel when his
attorney failed to call Clark to testify. We disagree. Because defendant failed to preserve the
issue of ineffective assistance, this Court is limited to reviewing errors that are evident on the
record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Defendant’s claim
that he was denied the effective assistance of counsel presents a mixed question of fact and
constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court
reviews the factual findings for clear error and the constitutional questions de novo. Id.
In order to prevail on an appeal based on ineffective assistance, defendant must establish
that his attorney’s assistance fell below an objective standard of reasonableness, and that this was
so prejudicial to him that he was denied a fair trial. People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000). There is a strong presumption that defense counsel’s actions were sound trial
strategy. Id. In order to demonstrate prejudice, defendant must establish that there is a
reasonable probability that, but for the mistakes of his attorney, the result of the trial would have
been different. People v Mitchell, 454 Mich 145, 167; 560 NW2d 600 (1997). The United
States Supreme Court has further stated that the proper inquiry is whether, as a result of
-2-
counsel’s performance, the outcome of the trial was fundamentally unfair, unreliable or
prejudicial. Lockhart v Fretwell, 506 US 364, 369; 113 S Ct 838; 122 L Ed 2d 180 (1993).
There is no indication on the record that Clark would have testified favorably for
defendant at trial. Furthermore, as defense counsel herself acknowledged, Clark may very well
have demanded the assistance of an attorney if called to testify, as there was reason to believe
she would be charged with a crime, based on her involvement in Dean’s stabbing. Importantly,
defendant has not shown how Clark’s testimony could have overcome the strong testimonial
evidence presented by various witnesses. Several witnesses besides Dean testified that defendant
started the confrontation after Clark pointed at Dean, and that Clark stated various times that
Dean was going to die. The evidence against defendant was overwhelming, and he cannot
overcome the presumption that it was sound trial strategy to not call Clark, or establish that he
was prejudiced by the decision.
Defendant next contends that he was prejudiced when he was tried jointly with Talonnie
Russell, and that his attorney was ineffective for failing to move to sever. We disagree. In
regard to the claim that he was prejudiced by the joint-trial, when not properly preserved, this
Court reviews claims of alleged error for plain error affecting the substantial rights of the
defendant. Carines, supra at 763-764. Because defendant failed to preserve the issue of
ineffective assistance, this Court is limited to reviewing errors that are evident on the record.
Matuszak, supra at 48.
As our Supreme Court explained in People v Hana, 447 Mich 325, 346-347; 524 NW2d
682 (1994):
the decision to sever or join defendants lies within the discretion of the trial court.
Severance is mandated under MCR 6.121(C) only when a defendant provides the
court with a supporting affidavit, or makes an offer of proof, that clearly,
affirmatively, and fully demonstrates that his substantial rights will be prejudiced
and that severance is the necessary means of rectifying the potential prejudice.
The failure to make this showing in the trial court, absent any significant
indication on appeal that the requisite prejudice in fact occurred at trial, will
preclude reversal of a joinder decision.
Therefore, because defendant failed to make a showing or an offer of proof, demonstrating that a
joint trial would prejudice his substantial rights, he is only entitled to relief on the appellate level
if there is a “significant indication” that such prejudice actually occurred.
Defendant cannot establish that his substantial rights were prejudiced as a result of being
tried with Russell. While defendant asserts that the testimony regarding Russell throwing dishes
and glassware at restaurant employees was highly inflammatory, and would not have been
admissible had he not been joined with Russell at trial, we cannot agree that the evidence
regarding Russell’s behavior would have been inadmissible against defendant. Russell’s
behavior was relevant as his actions created a chaotic environment, that the prosecution could
have utilized to explain minor discrepancies and contradictions in the testimony of various
witnesses. Furthermore, even if the testimony regarding Russell was not relevant, defendant has
failed to demonstrate that it was prejudicial. Even without testimony about Russell, it would still
have been revealed at trial that Clark told several people that Dean was going to die, defendant
-3-
came to the restaurant, and after Clark pointed at Dean, defendant attacked him and stabbed him
multiple times. The evidence of defendant’s guilt was overwhelming.
Finally, at the close of trial, the court instructed the jurors that each defendant was to be
treated independently, that the fact they were being tried together was not evidence of guilt, and
that any evidence limited to one defendant could not be considered for another defendant. Jurors
are presumed to follow instructions, and instructions are presumed to cure most errors. People v
Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). Here, defendant cannot establish that
the failure to sever was plain error that affected his substantial rights.
In regard to defendant's claim that he was denied the effective assistance of counsel
where his attorney failed to move for severance, defendant is not entitled to relief, as he cannot
establish that the trial court would have granted such a motion. As explained above, the trial
court had no reason to sever, where the evidence admitted against Russell, was also relevant to
the charges against defendant. Furthermore, as stated above, the evidence of defendant's guilt
was overwhelming, even without reference to Russell’s acts. Even if trial counsel had
successfully moved to sever, the results of the trial would have been no different. Defendant is
therefore not entitled to relief.
Finally, defendant contends that he is entitled to resentencing, because the trial court
improperly scored several offense variables (OVs). We disagree.
Defendant was given a prior record variable score of five and an OV score of 145,
resulting in the B-VI range of 126 to 210 months. Defendant alleges that OV 4, OV 9 and OV
10 should have each been scored at zero points. Even if this Court agreed, defendant would still
have a total OV score of 110, and would still be in the B-VI range. Defendant would need to
drop at least 11 more OV points in order to have his guideline range affected. As our Supreme
Court has indicated, resentencing is not required where a scoring error does not alter the
appropriate guidelines range. People v Davis, 468 Mich 77, 83; 658 NW2d 800 (2003).
Therefore, it is unnecessary for this Court to address whether the lower court erred in scoring the
variables at issue.
Affirmed.
/s/ Alton T. Davis
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
