PEOPLE OF MI V MARVIN TAWON ALLEN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 22, 2009
Plaintiff-Appellee,
v
No. 280523
Kalamazoo Circuit Court
LC No. 06-001743-FC
MARVIN TAWON ALLEN,
Defendant-Appellant.
Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
Defendant Marvin Allen appeals as of right his jury conviction of first-degree
premeditated murder,1 assault with intent to commit murder,2 felon in possession of a weapon,3
carrying a concealed weapon,4 and three counts of possession of a firearm during the
commission of a felony.5 The trial court sentenced Allen as an habitual offender, fourth offense,6
to concurrent terms of life imprisonment for the murder conviction, 40 to 60 years for the assault
conviction, and 6 to 30 years for the CCW and felon-in-possession convictions, to be served
consecutive to three concurrent two-year terms of imprisonment for the felony-firearm
convictions. We affirm.
I. Basic Facts And Procedural History
Allen’s convictions arise from an August 6, 2006 shooting in the parking lot of a Quick
Stop party store in Kalamazoo. Cornelle Mason was killed and William Palm was injured. The
shooting occurred shortly after the storeowner had locked the store doors at the 2:00 a.m. closing
1
MCL 750.316(1)(a).
2
MCL 750.83.
3
MCL 750.224f.
4
MCL 750.227.
5
MCL 750.227b.
6
MCL 769.12.
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time, at which time there were approximately 50 to 100 people in the parking lot. After hearing
multiple gunshots, the storeowner called 911. When the police arrived, the lot was empty and it
looked like “a ghost town.” The store had eight surveillance cameras, and witnesses identified
Allen as the only person with a gun. Witnesses also observed Allen fire the weapon toward
Palm. Additionally, witnesses observed Allen driving a red Durango, and the evidence indicated
that the driver and sole occupant of the Durango shot and killed Mason.
II. Prosecutorial Misconduct
A. Standard Of Review
Allen argues that the prosecutor’s improper comments during closing argument denied
him a fair trial. Because Allen did not object to the prosecutor’s arguments at trial, he did not
preserve this issue.7 Therefore, we limit our review to plain error affecting Allen’s substantial
rights.8
B. Appeal To Jury Sympathy
Allen argues that the prosecutor improperly appealed to the jury to sympathize for the
deceased victim by commenting that he was an innocent victim who left Chicago and went to
Kalamazoo to go to college and find a job to make his family proud. “A prosecutor may not
appeal to the jury to sympathize with the victim.”9 The prosecutor concedes that the challenged
remarks were “unwarranted,” but argues that they did not deny Allen a fair trial. We agree. We
will find no error requiring reversal if a timely instruction could have cured the prejudicial effect
of the prosecutor’s comments.10 Here, to the extent that the prosecutor’s remarks improperly
evoked sympathy for the victim, the trial court specifically instructed the jury that sympathy
must not play a part in its deliberations. The trial court’s instruction was sufficient to protect
Allen’s substantial rights. Therefore, we will not reverse on this ground.
C. Arguing Improper Evidence
Allen also argues that the prosecutor improperly argued impeachment evidence as
substantive evidence of Allen’s guilt. We disagree. When we view the prosecutor’s argument in
context, the prosecutor did not directly argue the witness’s prior statements as substantive
evidence. Rather, the prosecutor urged the jury to consider the witness’s previous statements and
her trial testimony in light of the “code of silence” (that is, “what happens in the streets stays in
the streets”), which several witnesses recognized. The prosecutor suggested that limitations the
witness imposed on her testimony in keeping with that code were a factor in the changes in her
statements. A prosecutor may draw inferences from the testimony and may argue that a
7
People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000).
8
Id., citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
9
People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008).
10
Schutte, supra at 721.
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witness’s testimony is not worthy of belief.11 Thus, we find no plain error. Further, the trial
court protected Allen’s substantial rights by specifically instructing the jury on the limited use of
prior inconsistent statements. We presume that the jury followed the court’s instructions.12
D. Vouching For Witness Credibility
Allen also argues that the prosecutor improperly vouched for the credibility of the police
investigation. Although the prosecutor has wide latitude to argue the evidence and its inferences,
the prosecutor may not put the prestige of the police behind a contention that a defendant is
guilty.13 When we view the prosecutor’s argument in context, the prosecutor was arguing that
the police investigation was thorough and, therefore, its results were reliable. To the extent that
the prosecutor’s remarks might have been improper, an appropriate instruction, if Allen had
requested one, could have cured any error. The principal issues at trial involved Allen’s
identification as the shooter and his intent, and these issues depended largely on the eyewitness
testimony, not the police investigation. For these reasons, we reject Allen’s argument that
misconduct by the prosecutor requires a new trial.
III. Ineffective Assistance Of Counsel
A. Standard Of Review
Allen argues that trial counsel was ineffective for failing to object to the prosecutor’s
remarks. To establish ineffective assistance of counsel, the burden is on Allen to show that
counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the
Sixth Amendment and that the deficient performance so prejudiced the defense as to deprive
Allen of a fair trial.14
B. Applying The Standards
Because we have concluded that the prosecutor’s remarks were either not improper or not
prejudicial, Allen cannot establish that the defense counsel’s failure to object prejudiced him.
Further, the defense counsel addressed each of the challenged subject matters in her own closing
argument. Counsel’s decision to address the issues in her own closing argument, rather than
object to the prosecutor’s argument and possibly create an impression that Allen had something
to hide, was a matter of trial strategy and Allen has not overcome the presumption of sound
11
People v Buckey, 424 Mich 1, 14-15; 378 NW2d 432 (1985).
12
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
13
People v Cowell, 44 Mich App 623, 628; 205 NW2d 600 (1973).
14
People v Mitchell, 454 Mich 145, 156; 560 NW2d 600 (1997).
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strategy.15 The fact that the strategy may not have worked does not constitute ineffective
assistance of counsel.16
IV. Jury Instructions
A. Standard Of Review
Allen argues that the trial court erred by denying his request for jury instructions on selfdefense and defense of others, as well as voluntary manslaughter. The trial court’s instructions
“must include all elements of the charged offenses and any material issues, defenses, and
theories if supported by the evidence.”17 We review a trial court’s decision whether an
instruction applies to the facts for an abuse of discretion.18
B. Failure To Instruct On Self-defense And Defense Of Others
“In Michigan, the killing of another person in self-defense is justifiable homicide if the
defendant honestly and reasonably believes that his life is in imminent danger or that there is a
threat of serious bodily harm.”19 A person is also allowed to use deadly force in defense of
another.20 “[T]he touchstone of any claim of self-defense, as a justification for homicide, is
necessity.”21 In this case, although the evidence indicated that Allen came to the aid of his
brother, who was involved in a fight with Palm, the fight ended before the shooting of either of
the victims. According to the witnesses, Palm was running away from the scene, with Allen
chasing him, when he was shot. Additionally, Cornelle Mason, who was not involved in the
fight, was attempting to drive away when he was shot. Because the evidence did not support a
finding that Allen could have honestly and reasonably believed that either he or his brother were
in imminent danger when he fired the shots, the trial court did not abuse its discretion in denying
Allen’s request for the instructions on self-defense and defense of others.
C. Failure To Instruct On Voluntary Manslaughter
Voluntary manslaughter is a necessarily included lesser offense of murder.22 Therefore,
an instruction on manslaughter would have been required upon request if supported by a rational
view of the evidence.23 Manslaughter is an intentional killing, in the heat of passion, caused by
15
Id.
16
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
17
People v McGhee, 268 Mich App 600, 606; 709 NW2d 595 (2005).
18
People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006).
19
People v Kurr, 253 Mich App 317, 320-321; 654 NW2d 651 (2002).
20
Id. at 321.
21
People v Riddle, 467 Mich 116, 127; 649 NW2d 30 (2002) (emphasis in original).
22
People v Mendoza, 468 Mich 527, 533, 541; 664 NW2d 685 (2003).
23
Id.; People v Weeder, 469 Mich 493, 498; 674 NW2d 372 (2004).
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an adequate provocation, and “there cannot be a lapse of time during which a reasonable person
could control his passions.”24 We agree with the trial court that a rational view of the evidence
did not support a manslaughter instruction. Therefore, the trial court did not err by refusing to
instruct on manslaughter. Furthermore, the trial court also instructed the jury on second-degree
murder as a lesser offense, but the jury instead convicted Allen on the higher offense of firstdegree murder. Given the jury’s refusal to either acquit or convict Allen of the lesser offense of
second-degree murder, any error in failing to instruct on manslaughter was harmless.25
V. Newly Discovered Evidence
A. Standard Of Review
In a supplemental brief that he filed in propria persona, Allen argues that he is entitled to
a new trial or remand for an evidentiary hearing because of newly discovered evidence. As
explained in People v Cress,26
For a new trial to be granted on the basis of newly discovered evidence, a
defendant must show that: (1) the evidence itself, not merely its materiality, was
newly discovered; (2) the newly discovered evidence was not cumulative; (3) the
party could not, using reasonable diligence, have discovered and produced the
evidence at trial; and (4) the new evidence makes a different result probable on
retrial.
B. Applying The Cress Standards
Here, the allegedly newly discovered evidence is an unsigned letter that Allen contends
that Palm, one of the shooting victims, wrote. But, contrary to Allen’s argument, the letter
contains no clear indication that its author was also armed on the night of the offense. Rather,
the letter clearly refers to Allen as the shooter. And, even if Palm wrote the letter, its contents do
not provide a reasonable basis for concluding that a different result would be probable on retrial.
Accordingly, the discovery of this letter warrants neither a new trial nor a remand for an
evidentiary hearing.
Affirmed.
/s/ Jane M. Beckering
/s/ William C. Whitbeck
/s/ Michael J. Kelly
24
People v Pouncey, 437 Mich 382, 388; 471 NW2d 346 (1991).
25
See Gillis, supra at 140 n 18.
26
People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003) (citation and internal quotations
omitted).
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