PEOPLE OF MI V DEANDRE ANGELO MULLINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellee,
v
No. 286323
Wayne Circuit Court
LC No. 08-001477-FC
DEANDRE ANGELO MULLINS,
Defendant-Appellant.
Before: Wilder, P.J., and O’Connell and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right his conviction following a jury trial of two counts of firstdegree criminal sexual conduct (CSC I), MCL 750.520b (multiple variables), and one count of
first-degree home invasion, MCL 750.110a(2). The trial court sentenced defendant to concurrent
terms of 285 months to 60 years for the CSC I convictions, as well as a consecutive 141 months
to 20 year term in prison for the first-degree home invasion conviction. We affirm.
Defendant first argues that the trial court abused its discretion in failing to inquire into his
reasons for requesting substitute counsel and in failing to determine whether appointing
substitute counsel would have unreasonably disrupted the judicial process. We review a trial
court’s decision regarding substitution of counsel for an abuse of discretion. People v Traylor,
245 Mich App 460, 462; 628 NW2d 120 (2001). An abuse of discretion occurs when a trial
court’s decision falls outside the range of reasonable and principled outcomes. People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
As plaintiff concedes, the trial court erred in failing to hear defendant’s claim and inquire
with defendant as to why he wanted new counsel. People v Ginther, 390 Mich 436, 442; 212
NW2d 922 (1973). However, “[a] judge’s failure to explore a defendant’s claim that his
assigned lawyer should be replaced does not necessarily require that a conviction following such
error be set aside.” Id. In Ginther, our Supreme Court did not reverse the trial court for failing
to explore the defendant’s request for substitute counsel “because the record [did] not show that
the lawyer assigned to represent Ginther was in fact inattentive to his responsibilities.” Id.; see
also People v Morgan, 144 Mich App 399, 402; 375 NW2d 757 (1985) (concluding that reversal
was not warranted where the trial court inquired as the defense counsel’s preparedness and
ability to work on the case). Here, as in Morgan, the trial court did inquire of defense counsel’s
level of preparedness and ability to work on the case. It also inquired of defendant’s ability to
assist in the case, as well as his understanding of it. Further, this was the second of back-to-back
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trials, and defense counsel represented defendant in the first trial. Therefore, the trial court was
already aware of defense counsel’s abilities. Finally, there is no indication that defense counsel
in this case was “inattentive to her responsibilities.” Ginther, 390 Mich at 442.
Defendant also argues that that the trial court abused its discretion in failing to inquire
directly of defendant whether he wanted to represent himself. Defendant has failed to properly
present this issue by raising it in his statement of questions presented. People v Brown, 239
Mich App 735, 748; 610 NW2d 234 (2000). In any event, we see no error where the court did
inquire of defense counsel if defendant wished to represent himself, and defendant did not
correct counsel’s negative response.
Defendant also raises four unpreserved issues on appeal: (1) that the trial court erred in
exercising insufficient caution in voir dire of the jury venire because jurors who had seen media
coverage of this highly publicized case were not removed from the panel; (2) that a change of
venue was warranted based on the pretrial publicity; (3) that he is entitled to a new trial based on
prosecutorial misconduct; and (4) that he is entitled to a new trial because defense counsel was
ineffective. We review these claims for plain error affecting defendant’s substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). Reversal is warranted only if
the error resulted in the conviction of an innocent defendant or the error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. People v Taylor, 252 Mich
App 519, 523; 652 NW2d 526 (2002).
As to defendant’s first argument—that the trial court erred in exercising insufficient
caution in voir dire of the jury venire—defendant’s argument is without merit. During voir dire,
the prosecutor asked the entire prospective jury pool whether they had been exposed to any
media coverage in the case, and reiterated the question each time new jurors were selected
following challenges by the advocates. In each instance, none of the jurors responded in the
affirmative. Further, the trial court instructed the jurors seated both before and after proofs that
they must decide the case based only on the evidence admitted at trial, and before proofs
cautioned against being exposed to news reports of the case because they can be misleading and
do not meet the standards of admissibility imposed upon evidence presented at trial. Considering
these instructions together, People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001), and
mindful that juries are presumed to follow the whole of their instructions, People v Graves, 458
Mich 476, 486; 581 NW2d 229 (1998), defendant’s substantial rights were not prejudiced by the
process.
Defendant next argues that a change of venue was warranted based on the pretrial
publicity in this case. We disagree. Generally, a defendant must be tried in the county where
the crime is committed. MCL 600.8312; People v Jendrzejewski, 455 Mich 495, 499; 566
NW2d 530 (1997). However, a trial court may change venue to another county where justice so
demands or a statute so provides. MCL 762.7; Jendrzejewski, 445 Mich at 499-500. “[I]t may
be appropriate to change venue of a criminal trial when widespread media coverage and
community interest have led to actual prejudice against the defendant.” People v Unger, 278
Mich App 210, 254; 749 NW2d 272 (2008). “Community prejudice amounting to actual bias
has been found where there was extensive highly inflammatory pretrial publicity that saturated
the community to such an extent that the entire jury pool was tainted, and, much more
infrequently, community bias has been implied from a high percentage of the venire who admit
to a disqualifying prejudice.” Jendrzejewski, 445 Mich at 500-501. Again, however, none of the
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jurors were exposed to the pretrial media coverage. Therefore, the jury pool was not tainted and
there was no need for a change of venue.1
Defendant also challenges the prosecutor’s use during closing argument of a photograph
of defendant that he alleges had the word guilty superimposed across his face. The test of
prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v
Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Prosecutorial misconduct issues are
decided on a case-by-case basis, and the reviewing court must examine the record and evaluate a
prosecutor’s remarks in context. Thomas, 260 Mich App at 454. The propriety of a prosecutor’s
conduct depends on all the facts of the case. People v Rodriguez, 251 Mich App 10, 30; 650
NW2d 96 (2002).
Here, the prosecutor did nothing more than summarize the facts in evidence and ask the
jury to find defendant guilty. A prosecutor is free to argue the evidence and all reasonable
inferences arising from it as they relate to his or her theory of the case. People v Bahoda, 448
Mich 261, 282; 531 NW2d 659 (1995). Further, a prosecutor is not required to make an
argument in the blandest possible terms. People v Fisher, 449 Mich 441, 452; 537 NW2d 577
(1995). Even assuming that the word guilty was flashed over defendant’s face in the
prosecutor’s closing power point presentation, this would merely have been a visualization of the
prosecutor’s assertion that the evidence adduced established defendant’s guilt. Therefore, we
conclude that there was no misconduct. Moreover, the trial court properly instructed the jury
that the lawyers’ statements and arguments were not evidence that could be considered during
deliberations. Graves, 458 Mich at 486.
Finally, defendant claims that defense counsel’s failure to object to the alleged
prosecutorial misconduct in this case rendered her assistance ineffective. However, because no
misconduct occurred, defense counsel cannot be faulted for failure to object. Thomas, 260 Mich
App at 457.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
1
Defendant also implies that defense counsel was ineffective for failing to move for a change of
venue. However, because a change of venue was not warranted in this case, defense counsel
cannot be deemed ineffective for failing to move for same. People v Thomas, 260 Mich App
450, 457; 678 NW2d 631 (2004).
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