PEOPLE OF MI V DOMINIQUE XAVIER WIRRICK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 28, 2009
Plaintiff-Appellee,
v
No. 285353
Saginaw Circuit Court
LC No. 07-028976-FC
DOMINIQUE XAVIER WIRRICK,
Defendant-Appellant.
Before: Owens, P.J., and Servitto and Gleicher, JJ.
PER CURIAM.
A jury convicted defendant of assault with intent to commit great bodily harm less than
murder, MCL 750.84, being a felon in possession of a firearm, MCL 750.224f, carrying a
firearm with unlawful intent, MCL 750.226, and two counts of possession of a firearm during the
commission of a felony, MCL 750.227b. The trial court sentenced defendant to concurrent terms
of 71 to 180 months for the assault conviction, and 60 to 90 months for the felon in possession
and carrying a firearm convictions, all consecutive to a two-year term of imprisonment for the
felony-firearm convictions. Defendant appeals as of right. We affirm, and decide this case
without oral argument pursuant to MCR 7.214(E).
Defendant’s convictions stem from a March 2007 shooting at a Saginaw restaurant. The
victim testified that as she waited for food at the restaurant, she saw defendant, with whom she
was acquainted, enter the restaurant with his girlfriend, then watched them leave the restaurant
before placing an order. The victim recounted that moments later, as she waited for food at a
booth near the restaurant’s front window, she saw defendant running toward her from outside
and pointing a handgun at her. Defendant fired two shots at the victim through the window,
striking the victim once in the shoulder. The prosecutor presented testimony that defendant
targeted the victim because he blamed her for the death of his best friend.
Defendant first maintains that the prosecutor engaged in misconduct during his closing
argument by urging the jury to find that because defendant was a convicted felon, he intended to
kill or harm the victim. Because defendant failed to object at trial to the allegedly improper
argument by the prosecutor, we review this claim only to determine whether any plain error
affected defendant’s substantial rights. People v Schutte, 240 Mich App 713, 720; 613 NW2d
370 (2000), criticized on other grounds in Crawford v Washington, 541 US 36; 124 S Ct 1354;
158 L Ed 2d 177 (2004). We review properly preserved claims of prosecutorial misconduct
according to the following standards:
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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. Prosecutors may not make a statement of fact to
the jury that is unsupported by the evidence, but they are free to argue the
evidence and all reasonable inferences arising from it as they relate to the theory
of the case. Prosecutorial comments must be read as a whole and evaluated in
light of defense arguments and the relationship they bear to the evidence admitted
at trial. [Id. at 721.]
We consider properly preserved instances of prosecutorial misconduct in context to determine
whether the defendant received a fair and impartial trial. People v Watson, 245 Mich App 572,
586; 629 NW2d 411 (2001).
The prosecutor devoted the bulk of his closing argument to a discussion of permissible
factual inferences concerning defendant’s intent at the time of the shooting, emphasizing his
position that defendant intended to kill the victim. In the middle and at the conclusion of the
closing argument, the prosecutor mentioned the several weapons offenses that also awaited the
jury’s determination. Defendant complains on appeal regarding the following excerpt that
concluded the prosecutor’s closing:
The weapons offenses you have to decide about are fairly straightforward,
and I don’t need to go through all the elements of those. You’re getting those
from the Court in written form. They’re important decisions, but your time
should be devoted to what appears to be the only issue. The defendant has pled
not guilty to this charge, he has no duty to prove anything. The People in this
case have proven beyond a reasonable doubt that he shot at . . . [the victim] with
the intent to kill her, that he was a person convicted of a specified felony on
March 7th, 2007, that it happened at the Magic Kitchen here in Saginaw, that he
couldn’t properly carry the firearm under those circumstances, and that he carried
it with the intent to do harm to her. We ask your verdict be guilty as charged.
[Emphasis added.]
Viewing the italicized comment above within the entirety of the prosecutor’s argument, he at no
time suggested that the jury should find defendant guilty of the assault and other charges merely
on the basis that defendant had a felony conviction. Instead, the prosecutor theorized at length
that defendant’s threats months before the shooting and his firing of gunshots at the victim
proved his intent to kill the victim. Furthermore, the prosecutor’s comments regarding
defendant’s felony conviction plainly were directed toward proving a requisite element of the
felon in possession of a firearm charge that the jury had to consider. MCL 750.224f.1 Because
no reasonable construction of the prosecutor’s argument supports defendant’s contention that the
prosecutor urged the jury to convict simply because defendant had a felony and thus was a bad
1
Defendant stipulated at trial that he had a conviction of a “specified felony,” as defined in MCL
750.224f(6).
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person, we find no prosecutorial misconduct, let alone plain error, inherent in the prosecutor’s
closing argument.
Defendant additionally asserts that he was denied the effective assistance of counsel by
his attorney’s incorrect closing argument statement that a second witness had identified him as
the restaurant shooter. Because defendant did not raise this issue in a motion for a new trial or
request for a Ginther2 hearing, we limit our review to mistakes apparent in the existing record.
People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
To establish ineffective assistance of counsel, a defendant generally must demonstrate
that his counsel’s performance fell below an objective standard of reasonableness and that
counsel’s representation so prejudiced the defendant that he was deprived of a fair trial. People v
Pickens, 446 Mich 298, 302-303, 308-327; 521 NW2d 797 (1994). With respect to the prejudice
aspect of the test for ineffective assistance, the defendant must demonstrate the reasonable
probability that but for counsel’s errors the result of the proceedings would have been different,
and that the attendant proceedings were fundamentally unfair and unreliable. Id. at 312, 326327; People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). The defendant must
overcome the strong presumptions that his counsel rendered effective assistance and that his
counsel’s actions represented sound trial strategy. Id. at 714-715.
Defendant assigns as erroneous and highly prejudicial the following characterization of
the trial testimony by his counsel:
Jarrett Byrne’s her friend. He corroborated her testimony, but he’s her
friend and apparently associate. He admits using crack and he admits using it that
day. He identified, when I say corroborated her, that is he identified my client as
the assailant. But he’d never seen him before, hadn’t seen him since before he
was on the witness stand, and [defendant’s] at that time sitting right where he is
right now in the defendant’s chair.
And Mr. Byrne’s here knowing that he’s being asked to testify in a case of
the People against Dominique Wirrick. Now, who do you think he’s going to
identify in that situation? The very situation is suggestive of guilt and he knows
it. Byrne knows it. What do you think the chances are he’s going to come in here
after a year and say, I don’t know, I don’t recognize him.
He’s here as a state’s witness and he knows it, and he’s going to testify
accordingly. [Emphasis added.]
Although defense counsel did misstate that Byrne had testified to seeing defendant fire gunshots
into the restaurant, when Byrne in reality could only identify defendant at trial as the man who
had entered and left the restaurant immediately before the shooting, a review of the entirety of
counsel’s argument makes evident that he properly discharged his duty as defendant’s advocate
in attempting to discredit Byrne. As the transcript excerpt above reflects, defense counsel
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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attacked Byrne’s testimony by suggesting that it qualified as drug clouded, influenced by his
friendship with the victim, and manufactured on the basis that defendant was standing trial for
the shooting; counsel further criticized Byrne’s description of the shooter’s attire and insinuated
that Byrne fabricated the description. In conclusion, defendant has failed to overcome the strong
presumption that counsel pursued a reasonable trial strategy in seeking to discredit Byrne.
Rodgers, supra at 714-715.
Affirmed.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
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