PEOPLE OF MI V JAMES WILLIAM BELTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 6, 2009
Plaintiff-Appellee,
v
No. 287276
Jackson Circuit Court
LC No. 07-003731-FH
JAMES WILLIAM BELTON,
Defendant-Appellant.
Before: Murray, P.J., and Markey and Borrello, JJ.
PER CURIAM.
Defendant appeals by right his conviction of possession with intent to deliver less than 50
grams of cocaine, MCL 333.7401(2)(a)(iv). We affirm but remand for correction of the
judgment of sentence.
Defendant first contends that he is entitled to a new trial because he received ineffective
assistance of counsel. Specifically, defendant contends that his counsel was ineffective for
conceding that defendant was guilty as charged. Because defendant failed to raise this claim
below in a motion for a new trial or an evidentiary hearing, review is limited to the existing
record. People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
To establish his claim, defendant must first show that (1) his trial
counsel’s performance fell below an objective standard of reasonableness under
the prevailing professional norms and (2) there is a reasonable probability that,
but for counsel’s error, the result of the proceedings would have been different.
Counsel is presumed to have provided effective assistance, and the defendant
must overcome a strong presumption that counsel’s assistance was sound trial
strategy. [People v Horn, 279 Mich App 31, 37-38 n 2; 755 NW2d 212 (2008)
(citations omitted).]
A complete concession of the defendant’s guilt renders counsel ineffective. People v
Krysztopaniec, 170 Mich App 588, 596; 429 NW2d 828 (1988). But, it is a permissible trial
tactic for counsel to “admit guilt of a lesser included offense in hopes that due to his candor the
jury will convict of the lesser offense instead of the greater.” People v Mark Schultz, 85 Mich
App 527, 532; 271 NW2d 305 (1978). In other words, counsel is not ineffective for conceding
what is obvious based upon the evidence. People v Wise, 134 Mich App 82, 98; 351 NW2d 255
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(1984). This Court will not second-guess trial counsel’s strategy of conceding certain elements
of the charge at trial. Id.; People v Chapo, 283 Mich App 360, 369-370; __ NW2d __ (2009).
The record does not support defendant’s claim. The evidence showed that the police
found the cocaine on defendant’s shoe; it had apparently slipped out of defendant’s pants while
he was being patted down. Given that, counsel admitted that defendant possessed the cocaine
but disputed that he intended to deliver it to anyone and urged the jury to find defendant guilty of
simple possession. When counsel initially advanced the idea that defendant might have been
taking the cocaine to a party, he did not indicate that defendant intended to deliver it to other
attendees. At most, counsel implied that defendant and his passengers jointly possessed the
cocaine and would jointly use it, not that defendant intended to distribute it to anyone. Given the
evidence that the cocaine apparently fell out of defendant’s pants, it was reasonable for counsel
to admit guilt of the lesser included offense and argue against the greater offense. “The fact that
defense counsel’s strategy may not have worked does not constitute ineffective assistance of
counsel.” People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
Defendant next contends that he was denied a fair trial because of prosecutorial
misconduct. Defendant objected to both statements at issue but not on the same grounds asserted
on appeal; consequently, the issue has not been preserved. People v Nantelle, 215 Mich App 77,
86-87; 544 NW2d 667 (1996). Our review is limited to plain error affecting defendant’s
substantial rights. People v Goodin, 257 Mich App 425, 431; 668 NW2d 392 (2003). “The test
for prosecutorial misconduct is, viewing the alleged misconduct in context, whether the
defendant was denied a fair and impartial trial.” Id.
We agree that the prosecutor improperly referred to the problem of crack cocaine
“decimating a lot of our communities.” The scourge of illegal drugs on society was irrelevant to
the issue whether defendant intended to deliver the cocaine in his possession and constituted an
appeal to the jurors’ fears. It is improper for a prosecutor to inject issues broader than the guilt
or innocence by making so-called “civic duty” arguments. See People v McGhee, 268 Mich App
600, 636; 709 NW2d 595 (2005). Still, we cannot find that the prosecutor’s comments affected
the outcome of the trial. The trial court admonished the prosecutor to “stick to the facts,” and the
prosecutor never again mentioned the problem of drugs in our society. The court later instructed
the jury that it was to decide the case based only on the evidence, and that the lawyers’
arguments are not evidence, which was sufficient to dispel any prejudice from this one isolated
remark. People v Bahoda, 448 Mich 261, 281; 531 NW2d 659 (1995).
We find nothing improper about the prosecutor’s statements that defendant had come
from Detroit. Taking the statements about traveling from Detroit alone and out of context, one
could certainly speculate that they were meant to suggest something unsavory about defendant’s
character. But when considered in context, as we must, it is clear that no such suggestion was
being made. The prosecutor specifically stated that he did not mean to imply anything negative
from the fact that defendant was from Detroit. He further explained that it was not the fact that
defendant had come from Detroit per se, but the fact that defendant brought cocaine to Jackson
from another city that permitted an inference of intent to deliver. That was a reasonable
inference from the evidence admitted at trial and thus was not improper.
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Defendant’s conviction is affirmed, but we remand for the ministerial task of correcting
the judgment of sentence which erroneously indicates that defendant was convicted by guilty
plea rather than by a jury. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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