PEOPLE OF MI V RODNEY GLENN DAVENPORT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 19, 2009
Plaintiff-Appellee,
v
No. 279040
Lapeer Circuit Court
LC No. 06-009067-FC
RODNEY GLENN DAVENPORT,
Defendant-Appellant.
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
After a jury trial, defendant Rodney Glenn Davenport was convicted of three counts of
first-degree murder, MCL 750.316(a), for the murders of James Hanson, Allyn Oesterle, and
Marie Melzer and was sentenced to life imprisonment. He appeals as of right. We affirm.
Defendant, a drifter, stayed intermittently at an apartment in the Pines of Lapeer
apartment complex that his friends rented. The victims also lived at the complex. Hanson and
Oesterle lived together in an apartment in building 2 of the complex, while Melzer lived alone in
building 3. Hanson, an acquaintance of defendant, owned an S-10 pickup truck that he would
not let others drive. Melzer was 76 years old and was confined to a wheelchair. She typically
kept the doors to her apartment unlocked.
Defendant had a drinking problem and, apparently, could be violent when intoxicated.
Defendant and Michael Bobier, one of the individuals who defendant was staying with, fought
on Friday, July 14, 2006, over some money that defendant owed. Defendant left the apartment
and did not return until the evening of July 16.
Defendant had been drinking on July 16. When he returned to his friends’ apartment, he
only stayed a short time and then left to visit others in the complex.1 Eventually, defendant went
to the apartment of Ashley Hecht, another acquaintance who lived in the complex, and he
continued to drink. He eventually left and headed toward the building in which Melzer lived.
1
Some witnesses also saw defendant with Hanson at a gas station that evening.
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Some time after about 1:00 a.m. on July 17, Hecht and her boyfriend saw defendant walking
briskly away from Melzer’s apartment building.
That day, Melzer’s body was discovered in her apartment. She had died of multiple stab
wounds to her chest. Defendant’s fingerprint was found on an insurance card in Melzer’s
apartment, and a cigarette butt collected from her apartment contained defendant’s DNA. The
bodies of Hanson and Oesterle were discovered in their apartment the following day. Both men
had been stabbed in the chest and someone had rummaged through Hanson’s pockets. Hanson’s
truck was gone.
Hanson’s abandoned truck was later discovered along the westbound ramp of M-15
entering onto I-69. The truck had run out of gas, and investigators would later identify
defendant’s DNA on the driver’s-side door of the truck. On July 17, several witnesses testified
that they saw defendant hitchhiking along the stretch of I-69 between the M-15 exit and the
apartment complex, and passers-by eventually gave defendant a ride back to the apartment
complex. Defendant was soon identified as a person of interest and was questioned by
investigators shortly after returning to the complex. However, he was not arrested on July 17.
Early in the morning of July 18, defendant collected his things and his mother drove him
to the small community of Otter Lake, where he had grown up. At Otter Lake, defendant
encountered a childhood acquaintance, Turessa VanHorn, and reintroduced himself. Later, he
told VanHorn that he was “in trouble for some traffic violations.” Some time thereafter, he
admitted “that he was in more trouble than traffic violations but he didn’t tell [VanHorn]
what....” VanHorn did not question defendant regarding this statement, believing that it would
be best if she did not know too much about the situation. Defendant went to sleep in VanHorn’s
car and was arrested later that evening.
First, defendant argues that the trial court erroneously admitted statements that he made
to the police because he was in custody at the time yet had not been read his Miranda2 rights.
We disagree.3
“A statement obtained from a defendant during a custodial interrogation is admissible
only if the defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment
rights.” People v Akins, 259 Mich App 545, 564; 675 NW2d 863 (2003), citing Miranda, supra.
Here, there is no dispute that defendant did not receive Miranda warnings before he made his
statement. However, “[i]t is well settled that Miranda warnings need be given only in situations
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
3
Defendant raised this issue in a Walker hearing and, therefore, it is preserved for our review.
People v Walker (On Rehearing), 374 Mich 331, 338; 132 NW2d 87 (1965). We review de novo
the trial court’s ultimate decision on a motion to suppress evidence. People v Akins, 259 Mich
App 545, 563; 675 NW2d 863 (2003). However, we “will not disturb a trial court’s factual
findings with respect to a Walker hearing unless those findings are clearly erroneous.” Id. We
must defer to the trial court’s determinations regarding the credibility of the witnesses at a
Walker hearing. People v Tierney, 266 Mich App 687, 708; 703 NW2d 204 (2005).
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involving a 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 in custody or otherwise deprived of his freedom of action in any
significant way. Id. Whether an accused was in custody at the time of the interrogation depends
on the totality of the circumstances, and the key question is whether the accused reasonably
could have believed that he was not free to leave. Id.
“[T]he requirement of warnings [is not] to be imposed simply because the
questioning takes place in the station house, or because the questioned person is
one whom the police suspect. Miranda warnings are required only where there
has been such a restriction on a person’s freedom as to render him ‘in custody.’”
[People v Mendez, 225 Mich App 381, 384; 571 NW2d 528 (1997), quoting
Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977).]
The trial court did not err when it permitted the prosecutor to admit evidence concerning
defendant’s statement to Officer Thomas Smith, because defendant was not in custody when he
gave the statement. Defendant was not in a situation in which he could come to the reasonable
conclusion that he was not free to leave or to refrain from answering questions posed by Smith.
Defendant was informed that Smith wanted to talk to him about Melzer’s murder and agreed to
an interview. Defendant was transported to the police station by police cruiser for his
convenience because he did not have another source of transportation, and he was not restrained
or searched before entering the cruiser. The interview was fairly short and defendant was left
alone and unrestrained in the interview room for at least ten minutes. And finally, although
defendant was not given a formal Miranda warning, Smith told him that he was free to leave and
was not obligated to answer any questions. Considering that Smith told defendant that he was
free to end the questioning and leave and the officers acted in a manner consistent with such an
assertion, defendant could not reasonably conclude that he was in custody when he spoke to
Smith. Therefore, the officers were not required to give defendant a Miranda warning, and the
trial court did not err when it admitted evidence concerning this interview.
Second, defendant argues that his trial counsel was ineffective for introducing evidence
concerning his good character and genialness while intoxicated because, he claims, they opened
the door to the introduction of the rebuttal testimony of Victor Wade Smyczak indicating that
defendant had been in a violent fight when he was intoxicated. We disagree. Instead, we
conclude that defense counsel introduced this character evidence as a matter of trial strategy and
that any failure to challenge the admission of Smyczak’s rebuttal testimony was harmless.
A party should raise a claim of ineffective assistance of counsel by a motion for a new
trial or an evidentiary hearing. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
Because defendant failed to move for a Ginther hearing, our review is limited to mistakes
apparent on the record. People v Darden, 230 Mich App 597, 604; 585 NW2d 27 (1998).
Whether defendant has been deprived of effective assistance of counsel is a mixed question of
fact and law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “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.” Id. Factual findings are reviewed for
clear error, while constitutional determinations are reviewed de novo. Id. “Effective assistance
of counsel is presumed, and the defendant bears a heavy burden of proving otherwise.” People v
Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). In reviewing a claim of ineffective
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assistance of counsel, “[t]his Court will not substitute its judgment for that of counsel regarding
matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.”
People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
Criminal defendants are entitled to effective representation at every critical stage of
proceedings against them. People v Abernathy, 153 Mich App 567, 568-569; 396 NW2d 436
(1985). However, counsel is not ineffective merely because the outcome is not optimal. People
v Davidovich, 463 Mich 446, 453 n 7; 618 NW2d 579 (2000). Instead, counsel is ineffective if it
has “sunk to a level at which it is a problem of constitutional dimension.” Id.
“To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). To
demonstrate that counsel’s performance was deficient, a defendant must establish that his
attorney’s representation “fell below an objective standard of reasonableness under prevailing
professional norms. In so doing, the defendant must overcome a strong presumption that
counsel’s performance constituted sound trial strategy.” Id. “A sound trial strategy is one that is
developed in concert with an investigation that is adequately supported by reasonable
professional judgments.” People v Grant, 470 Mich 477, 486; 684 NW2d 686 (2004).
To establish that his counsel’s deficient performance prejudiced the defense, a defendant
must show that his attorney’s representation “was so prejudicial to him that he was denied a fair
trial.” People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). In other words, the
defendant must show that, because of counsel’s deficient performance, the resulting proceedings
“were fundamentally unfair or unreliable.” Rodgers, supra at 714. This requires the defendant
to demonstrate a reasonable probability that but for his counsel’s unprofessional errors, the
outcome of the proceeding would have been different. Toma, supra at 302-303.
In this case, defendant’s attorney’s decision to admit evidence concerning defendant’s
good character was a strategic decision and did not rise to the level of ineffective assistance of
counsel. Although no eyewitness testimony placed defendant in either the Melzer or the
Hanson-Oesterle apartments at the time of the murders, several witnesses testified that defendant
was at the apartment complex about the time of the murders, was intoxicated, and tended to
become violent when he was intoxicated. By presenting evidence that defendant was not violent
when he was intoxicated, defendant’s counsel could attempt to counteract the image of defendant
as a violent, alcoholic, unstable drifter that had developed during the prosecution’s case-in-chief.
Although this testimony would open the door to character evidence and, specifically, additional
evidence indicating that defendant was violent when he was intoxicated, the prosecution had
already introduced evidence indicating that defendant had gotten into fights.4 Defendant’s
counsel could reasonably conclude that introducing some evidence of defendant’s good character
outweighed the risk of opening the door to additional evidence of defendant’s propensity for
4
In particular, the prosecutor presented evidence in his case-in-chief indicating that defendant
and Bobier were in a fight a couple of days before the murders and that defendant became
aggravated when others provoked him when he was in an intoxicated state.
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violence, because the jury would at least be presented with an image of defendant besides that of
a violent, alcoholic drifter.
In addition, defendant’s counsel’s failure to challenge the admission of rebuttal testimony
given by Smyczak did not deny defendant a fair trial. MRE 404(a) permits a criminal defendant
to introduce evidence of his character to establish that he could not have committed the charged
offense. People v Whitfield, 425 Mich 116, 130; 388 NW2d 206 (1986). The prosecutor may
then offer testimony regarding defendant’s reputation or opinions of defendant’s character to
rebut this character evidence, and he may cross-examine witnesses regarding reports of relevant
specific instances of conduct. Id. at 130-131; see also MRE 405. The prosecution introduced
Smyczak’s testimony to rebut evidence presented by defendant under MRE 404(a) concerning
his peaceful, non-violent nature. Smyczak’s opinions regarding defendant’s propensity for
violence when drinking were properly admitted pursuant to MRE 405. Although MRE 405 does
not permit the admission of specific-acts evidence on direct examination to establish defendant’s
character, any error resulting from defense counsel’s failure to challenge the admission of
Smyczak’s testimony regarding specific acts of violence in which defendant participated did not
affect the outcome of the case or otherwise deny defendant a fair trial. Smyczak’s testimony was
merely supplementary to the substantial evidence presented by the prosecutor indicating that
defendant had been in a fight and had been intoxicated and acting in a boorish manner around the
time of the murders. Further, defense counsel neutralized Smyczak’s testimony by eliciting from
him the admission that defendant had not started the fight that Smyczak had described. Although
Smyczak’s testimony would lead to the conclusion that defendant might become violent when
provoked, the prosecution never theorized, and the evidence does not indicate, that defendant
murdered Melzer, Hanson, or Oesterle after they provoked him.
Next, defendant argues that the prosecutor committed misconduct by misstating
VanHorn’s testimony during his closing argument. We disagree. In his closing argument, the
prosecutor presented reasonable inferences that can be drawn from VanHorn’s testimony and,
therefore, the prosecutor’s statements were not improper.5
“The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial (i.e., whether prejudice resulted).” People v Abraham, 256 Mich App 265, 272;
662 NW2d 836 (2003). “Generally, ‘[p]rosecutors are accorded great latitude regarding their
arguments and conduct.’ They are ‘free to argue the evidence and all reasonable inferences from
the evidence as it relates to [their] theory of the case.’” People v Bahoda, 448 Mich 261, 282;
531 NW2d 659 (1995) (citations omitted). Although a prosecutor may not make a statement of
fact to the jury that is unsupported by the evidence, he is “free to argue the evidence and any
reasonable inferences that may arise from the evidence.” People v Ackerman, 257 Mich App
434, 450; 669 NW2d 818 (2003). To determine if a prosecutor’s comments during his closing
argument were improper, we evaluate the prosecutor’s remarks in context, in light of defense
5
Because defendant failed to raise this issue in a motion for a new trial, it is not preserved and
we review for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich
750, 763-764, 774; 597 NW2d 130 (1999).
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counsel’s arguments and the relationship these comments bear to the evidence admitted at trial.
People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). “The propriety of a
prosecutor’s remarks depends on all the facts of the case.” People v Rodriguez, 251 Mich App
10, 30; 650 NW2d 96 (2002).
During his closing argument, the prosecutor summarized Turessa VanHorn’s testimony
as follows:
Then we look at Rodney’s behavior when he’s on the run. He threatens Turessa
VanHorn, “Take me somewhere or I’ll do something to you and your family.” He
admits to her that he did something really bad but won’t tell her what.
Defendant claims that in making this argument, the prosecutor improperly claimed that
defendant “did something really bad” when the evidence did not support such a claim. However,
the prosecutor’s statements present a reasonable inference that can be drawn from VanHorn’s
testimony. VanHorn testified that defendant initially told her that he was “in trouble for some
traffic violations” and later claimed “that he was in more trouble than traffic violations but he
didn’t tell me what . . . .” By initially mentioning that he had some traffic violations, defendant
implied that he was in some sort of legal trouble. When defendant then altered his statement to
claim that he was in “more trouble than traffic violations,” a reasonable inference could be made
that defendant’s “trouble” with the authorities was more serious than a traffic infraction and, by
process of elimination, rose to the level of some sort of criminal trouble, i.e., “something really
bad.” In making the contested statement, the prosecutor presented a reasonable inference arising
from VanHorn’s testimony. The prosecutor’s statement was not improper and, therefore,
defendant’s claim of prosecutorial misconduct lacks merit.6 Because the prosecutor’s arguments
did not constitute misconduct, defendant’s claim that his counsel was ineffective for failing to
challenge the prosecutor’s arguments also lacks merit. Riley, supra at 142 (“Ineffective
assistance of counsel cannot be predicated on the failure to make a frivolous or meritless
motion.”).
Defendant also argues that the prosecutor committed misconduct when he attempted to
associate himself with the police investigation and vouch for the investigation in his opening and
closing statements. In particular, defendant claims that the prosecutor’s use of the terms “we,”
“us,” and “we’ve” constitute an attempt to put himself in the middle of the police investigation.
We disagree.
6
Regardless, the jury instructions cured any potential error. The trial court properly instructed
the jury that defendant was presumed to be innocent and did not have to prove that he committed
the charged offenses. Further, the trial court properly instructed the jury that the prosecution’s
closing statement is not evidence. See MCR 6.414(g). “It is well established that jurors are
presumed to follow their instructions.” People v Graves, 458 Mich 476, 486; 581 NW2d 229
(1998). Therefore, we assume that the jury did not consider the prosecutor’s closing statement as
evidence when deliberating and disregarded any assertions and arguments unsupported by the
evidence.
-6-
First, the prosecutor’s use of the term “we’ve” during his opening statement did not
constitute an attempt to associate with the police investigation and vouch for its veracity. After
considering the prosecutor’s statement in context, we conclude that the prosecutor could have
just as easily been referring to the case put together by the prosecutor’s office against defendant
when he used the term “we’ve” in relation to an investigation. The prosecutor did not refer to
any action or proceeding undertaken by the police in the challenged portion of the opening
statement, and he was not attempting to place himself in the middle of the police investigation
and vouch for the investigation. Instead, the prosecutor’s use of the term “we’ve” in the
challenged portion of the statement, like his use of the term “we” earlier in his opening
statement, indicates that the prosecutor was most likely using this pronoun to communicate that
he was speaking on behalf of the entire prosecutor’s office.
Second, the prosecutor did not attempt to associate himself with the police investigation
through his use of the terms “we” and “us” in the first part of his closing argument. In the
challenged portion of his closing argument, the prosecutor was not implying that he was directly
involved in the investigation. Instead, the prosecutor’s use of the terms “we” and “us” were
rhetorical devices used to guide the jury through his analysis of the evidence and resulting
conclusions. The prosecutor was not attempting to place himself in the middle of the police
investigation or vouch for the credibility of this investigation, and his use of this rhetorical
device did not constitute outcome-determinative misconduct. Consequently, the prosecutor’s
comments in both his opening statement and closing argument were proper; the prosecutor did
not commit misconduct and defendant’s claim of error lacks merit.
Defendant also argues that his due process rights were violated when the trial court
declined to order the prosecutor to run LIEN inquiries and turn over information pertaining to
witnesses’ criminal histories. However, our Supreme Court’s order in People v Elkhoja, 467
Mich 916; 658 NW2d 153 (2003), which adopts the dissent in People v Elkhoja, 251 Mich App
417; 651 NW2d 408 (2002), confirms that the prosecutor has no duty and is not statutorily
permitted to run LIEN inquiries on its witnesses. Defendant’s claim of error lacks merit.
Defendant argues that the trial court erred when it denied his motion for a directed verdict
because the prosecutor presented insufficient evidence to support charges of first-degree murder
brought against defendant.7 We disagree.8
“Due process commands a directed verdict of acquittal when ‘sufficient evidence to
justify a rational trier of fact in finding guilt beyond a reasonable doubt’ is lacking.” People v
7
We need not address whether the prosecutor presented sufficient evidence to support
defendant’s convictions for felony murder because the trial court vacated these convictions at
sentencing.
8
We review de novo a trial court’s decision to grant or deny a motion for a directed verdict.
People v Mayhew, 236 Mich App 112, 124; 600 NW2d 370 (1999). When evaluating a motion
for a directed verdict, we “consider the evidence presented by the prosecution in the light most
favorable to the prosecution to determine whether a rational trier of fact could find that the
essential elements of the crime charged were proved beyond a reasonable doubt.” Id. at 124.
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Lemmon, 456 Mich 625, 633-634; 576 NW2d 129 (1998) (footnotes and citations omitted). If
the evidence presented by the prosecution, viewed in the light most favorable to the prosecution,
is insufficient to permit a reasonable trier of fact to find guilt beyond a reasonable doubt, the
court must enter the requested directed verdict.
First-degree premeditated murder requires that the defendant killed the victim and that
the killing was “willful, deliberate, and premeditated.” MCL 750.316(1)(a). “Premeditation,
which requires sufficient time to permit the defendant to take a second look, may be inferred
from the circumstances surrounding the killing.” People v Coy, 243 Mich App 283, 315; 620
NW2d 888 (2000). “Premeditation and deliberation may be established by evidence of ‘(1) the
prior relationship of the parties; (2) the defendant’s actions before the killing; (3) the
circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.’” People
v Abraham, 234 Mich App 640, 656; 599 NW2d 736 (1999), quoting People v Schollaert, 194
Mich App 158, 170; 486 NW2d 312 (1992).
The prosecution presented substantial evidence linking defendant to Melzer’s murder.
Several witnesses indicated that defendant was at the complex near Melzer’s apartment building
about the time she was murdered, and forensic evidence indicated that defendant had recently
been in Melzer’s apartment, although he initially denied ever having been there. Melzer was an
elderly, paralyzed woman who was stabbed multiple times; her fragile state belied an assumption
that she might have been a threat to her killer, and her death by multiple stab wounds indicates
that the killer had time to reflect on his actions as he stabbed her repeatedly in the chest. This
evidence was sufficient to survive a motion for directed verdict, and the trial court did not err
when it denied defendant’s motion for a directed verdict dismissing this charge of first-degree
murder.
The prosecution also presented sufficient evidence establishing that defendant murdered
James Hanson and Allyn Oesterle to survive a motion for a directed verdict and to permit a
reasonable jury to find defendant guilty of these counts of first-degree murder. Although
investigators did not discover forensic evidence at Hanson and Oesterle’s apartment that directly
linked defendant to the scene, the prosecution presented evidence that Hanson occasionally gave
defendant rides in his truck, that Hanson was last seen with defendant before he was murdered,
and that although Hanson never let anybody drive his truck and kept his truck keys with him at
all times, his keys were not in his apartment when his body was discovered and it appeared that
someone had gone through the pockets of his clothes. Further, defendant was at the complex at
the time in which Hanson and Oesterle were murdered. In addition, after the murders, Hanson’s
truck was found abandoned on a highway miles away from the complex and defendant was
spotted walking on the stretch of interstate between the apartment complex and the spot where
Hanson’s truck was abandoned. Investigators also discovered defendant’s DNA on the driver’s
side door of the truck. This evidence, taken in a light most favorable to the prosecution,
indicates that defendant was in a position to kill Hanson and Oesterle. In addition, Hanson and
Oesterle died from multiple stab wounds. Again, a reasonable juror could conclude that the
killer had sufficient time to reflect on his actions as he repeatedly stabbed each victim. This
evidence was sufficient to survive a motion for directed verdict, and the trial court did not err
when it denied defendant’s motion for a directed verdict to dismiss the charges of first-degree
murder for the murders of Hanson and Oesterle.
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Affirmed.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Donald S. Owens
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