PEOPLE OF MI V DWIGHT ROBERSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 8, 2010
Plaintiff-Appellee,
v
No. 291436
Wayne Circuit Court
LC No. 08-014529-FH
DWIGHT ROBERSON,
Defendant-Appellant.
Before: K.F. KELLY, P.J., and WILDER and GLEICHER, JJ.
PER CURIAM.
A jury convicted defendant of first-degree home invasion, MCL 750.110a(2), seconddegree home invasion, MCL 750.110a(3), receiving or concealing stolen property valued
between $200 and $1,000, MCL 750.535(4)(a), malicious destruction of a house, causing
damages between $1,000 and $20,000, MCL 750.380(3)(a), and participating in a criminal
enterprise, MCL 750.159i. The trial court sentenced defendant, as a second habitual offender,
MCL 769.10, to concurrent terms of 20 to 30 years in prison for the first-degree home invasion
and criminal enterprise convictions, 10 to 15 years for the second-degree home invasion
conviction, two to five years for the malicious destruction conviction, and time served for the
receiving or concealing conviction. Defendant appeals as of right. We affirm.
The prosecutor charged defendant and four codefendants1 with participating in four
Detroit robberies: breaking and entering Your Place Lounge located at 17326 East Warren early
on August 31, 2008, invading a residence on Woodhall Street on September 27, 2008, and
robbing two other Woodhall Street residences on September 29, 2008. The robbery targets all
were located within three blocks of one another.
Defendant undisputedly occupied a residence located at 4889 Woodhall Street, in the
midst of the robbery targets.2 Detroit police officers testified that they first investigated a
1
In addition to defendant, the prosecutor charged Delvonne Roshad Randall, Brandon Joshua
Pitts, Shawntez Eric Cobb, and Thomas Ezel Copeland.
2
Police testimony at trial agreed that 4889 Woodhall lacked electric, gas, or water meters, but
had an illegal electricity hookup to the home next door.
-1-
potential connection between 4889 Woodhall Street and the robberies immediately after the
August 31, 2008 breaking and entering of the lounge, to which 4889 Woodhall was the closest
residence, immediately adjacent to the lounge across an alley. Officers observed suspect
movement inside 4889 Woodhall, entered the house, found liquor, pieces of a cash register, and
other items taken from the lounge, and arrested defendant and his four charged codefendants,
who were released days later.
Several Woodhall Street residents testified about the robberies of their houses, and two
residents recalled seeing four to six African-American males engaged in suspicious behavior on
Woodhall Street in the early morning hours of September 29, 2008. The suspicious behavior
included pushing a trash receptacle full of pipes down the sidewalk and carrying a large duffel
bag, which items the group transported to 4889 Woodhall. The trash receptacle bore the address
of one of the broken and entered homes. None of the Woodhall Street residents could identify
defendant as one of the Woodhall home invaders. However, later on September 29, 2008, the
police descended on 4889 Woodhall and arrested defendant and a codefendant as they tried to
flee from the house; police arrested another codefendant inside the house. At the time of the
arrests, the police found the trash receptacle containing copper piping stolen from one of the
Woodhall Street houses, a Wii game system stolen from another Woodhall residence, and several
other items of stolen property from the three invaded Woodhall homes.
I. CRIMINAL ENTERPRISE JURY INSTRUCTION
Defendant initially complains on appeal that the trial court deprived him of due process
and a fair trial when it instructed the jury on an uncharged theory of criminal enterprise liability.
At the close of the third day of trial, after the parties had rested, the trial court discussed with the
parties the language it would employ to instruct the jurors regarding the elements of criminal
enterprise liability under MCL 750.159i. The prosecutor eventually endorsed the instruction
crafted by the trial court, although defense counsel advised the court that he would review the
proposed instruction that evening “and see if I can figure out something that makes it fit better in
my head.” When the next day of trial commenced, the court stated, “When we left yesterday I
had asked you both if you wanted to improve on the jury instruction that I was going to give on
Count 7. It’s my understanding that you can both live with the way I read [it] into the record
yesterday,” and defense counsel replied, “Yes, your Honor.” Defense counsel’s affirmative
expression of approval of the proposed criminal enterprise instruction amounts to a waiver of any
appellate claim of error concerning the instruction, which extinguishes any instructional error.
People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Defendant additionally recasts his claim of criminal enterprise instructional error as a
contention that he received ineffective assistance of counsel at trial. “Whether a person has been
denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge
must first find the facts, and then must decide whether those facts constitute a violation of the
defendant’s constitutional right to effective assistance of counsel.” People v LeBlanc, 465 Mich
575, 579; 640 NW2d 246 (2002). This Court reviews for clear error a trial court’s findings of
fact, and considers de novo questions of constitutional law. Id. Because defendant did not
previously challenge his trial counsel’s effectiveness, we limit our review of his claim to
mistakes apparent on the existing record. People v Hurst, 205 Mich App 634, 641; 517 NW2d
858 (1994).
-2-
“[I]t has long been recognized that the right to counsel is the right to the effective
assistance of counsel.” United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657
(1984), quoting McMann v Richardson, 397 US 759, 777 n 14; 90 S Ct 1441; 25 L Ed 2d 763
(1970). In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984),
the United States Supreme Court held that a convicted defendant’s claim of ineffective assistance
of counsel includes two components: “First, the defendant must show that counsel’s
performance was deficient. . . . Second, the defendant must show that the deficient performance
prejudiced the defense.” To establish the first component, a defendant must show that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms. People v Solomonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). 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
differed. Id. at 663-664. The defendant must overcome the strong presumptions that his
“counsel’s conduct falls within the wide range of professional assistance,” and that his counsel’s
actions represented sound trial strategy. Strickland, 466 US at 689.
The charging documents filed by the prosecutor consistently charged defendant with a
criminal enterprise violation of MCL 750.159i(1): “A person employed by, or associated with,
an enterprise shall not knowingly conduct or participate in the affairs of the enterprise directly or
indirectly through a pattern of racketeering activity.” However, the trial court’s final jury
instructions concerning criminal enterprise liability focused solely on a distinct theory delineated
in MCL 750.159i(2): “A person shall not knowingly acquire or maintain an interest in or control
of an enterprise or real or personal property used or intended for use in the operation of an
enterprise, directly or indirectly, through a pattern of racketeering activity.” (Emphasis added).3
The trial court’s jury instruction essentially amended the terms of the prosecutor’s charging
documents.
This Court generally reviews for an abuse of discretion a trial court’s decision to amend
an information. People v Russell, 266 Mich App 307, 317; 703 NW2d 107 (2005).
The court may at any time before, during or after the trial amend the
indictment in respect to any defect, imperfection or omission in form or substance
or of any variance with the evidence. If any amendment be made to the substance
of the indictment or to cure a variance between the indictment and the proof, the
accused shall on his motion be entitled to a discharge of the jury . . . and to a
reasonable continuance of the cause unless it shall clearly appear from the whole
proceedings that he has not been misled or prejudiced by the defect or variance in
respect to which the amendment is made or that his rights will be fully protected
by proceeding with the trial or by a postponement thereof to a later day . . . .
[MCL 767.76 (emphasis added).]
3
The trial court instructed the jury that the Michigan criminal enterprise statute “provides that a
person shall not knowingly acquire or maintain property used or intended for use in racketeering
activity by a criminal enterprise.” The trial court went on to read the jury the statutory
definitions of “criminal enterprise,” “racketeering,” and “pattern of racketeering activity.”
-3-
“The court before, during, or after trial may permit the prosecutor to amend the information
unless the proposed amendment would unfairly surprise or prejudice the defendant. . . .” MCR
6.112(H). “A trial court may amend the information at any time . . . as long as the accused is not
prejudiced by the amendment and the amendment does not charge a new crime.” People v
Stricklin, 162 Mich App 623, 633; 413 NW2d 457 (1987); see also People v Higuera, 244 Mich
App 429, 453; 625 NW2d 444 (2001). In summary, “an amendment must not cause
unacceptable prejudice to the defendant through ‘unfair surprise, inadequate notice, or
insufficient opportunity to defend.’” People v McGee, 258 Mich App 683, 688; 672 NW2d 191
(2003), quoting People v Hunt, 442 Mich 359, 364; 501 NW2d 151 (1993).
Here, the trial court’s instruction of the jury with respect to the elements of criminal
enterprise responsibility pursuant to MCL 750.159i(2) did not charge defendant with a new
crime, but merely a different theory of criminal enterprise liability than the prosecutor initially
charged under MCL 750.159i(1). Furthermore, defendant cannot genuinely claim unfair surprise
or other prejudice arising from the trial court’s jury instruction incorporating the elements of
subsection (2). At the lengthy preliminary examination, the prosecutor presented much of the
same evidence elicited at trial, including police officer testimony that on August 31, 2008
defendant was arrested at 4889 Woodhall Street in the presence of liquor bottles and the cash
register stolen from the lounge, and that on September 29, 2008 he was arrested at 4889
Woodhall Street with a stolen cell phone in his pocket and other items stolen from the three
targeted Woodhall Street residences sitting in and around 4889 Woodhall. The prosecutor
summarized at the preliminary examination defendant’s participation in the criminal enterprise,
in pertinent part as follows:
We have Mr. Roberson who is present immediately after the breaking and
entering the bar. You have Mr. Roberson. You have Mr. Randall. You have Mr.
Pitts all being present at the address of 4889 Woodhall, which is right behind the
bar. Within the same hour that the alarm went off they’re tracked down by the
blood trail of Mr. Randall. He’s the person bleeding when they get into that
house, but the blood trail is followed to that location. It stops at the grass. But
once they get in there they see Mr. Randall who is bleeding and they see all the
stolen items from the bar at that location: the liquor bottles, the beer and the cash
register.
***
The same goes for the location of the home invasions. Two of the home
invasions happened the exact same night, September 29th of 2008, that’s at 4150
Woodhall and 4128 Woodhall. They happen in the same manner. The windows
were pried open or broken and then items are missing and the back doors are
either unlocked or open. I assume, if they got in through the window, opened the
back door and left through that when they stole all the property.
Again, there’s no eyewitness testimony but there is certainly
circumstantial evidence . . . . Mr. Pitts is found not only with Ms. Taylor’s cell
phone within hours of that B and E, he fits the description the officers received
from a witness and he also has the house keys of the victim on his person when he
was arrested at a different location from everybody else. Everybody else was
-4-
arrested at that 4889 Woodhall, that being Mr. Roberson, Mr. Pitts [sic] and Mr.
Copeland.
Mr. Copeland and Mr. Roberson had items on them specifically from the
home invasions. Mr. Roberson had the cell phone of Ms. Taylor’s . . . .
Also, at that location, . . . . I would say that they’re acting in control of
these items because the black duffel bag, which has the copper piping . . . .
You also have the item from 4303 Woodhall, the popcorn tin, which was
pretty specific, Scooby-Doo popcorn tin, which had approximately $600 worth of
change in it, as well as the Nintendo Wii that Mr. Copeland had in the backpack
along with the jewelry. Everybody was arrested in that location and tied to that .
. . . [Emphasis added.]4
From the time of the preliminary examination, defendant had reasonable notice that the manner
in which the prosecutor intended to prove his criminal enterprise culpability for the breaking and
entering and home invasions at least in large part rested on defendant’s hosting of or association
with his charged codefendants at 4889 Woodhall and the storage of stolen property there.
4
When the prosecutor gave his opening statement at defendant’s trial, he similarly emphasized
defendant’s connection to 4889 Woodhall Street:
Mr. Roberson, you wouldn’t find his DNA in any of the homes. You
won’t find his DNA inside that bar. You won’t see a person who can put him
inside any of those homes, okay. But he is an aider and abettor. Without him,
without his location where he was staying this—but for him these cases would
probably not have happened, okay.
You will hear that from every one of these events there was property
stored and placed at 4889 Woodhall shortly after the event. And the police
collected them within an hour for Your Place Lounge, within a couple of hours
from the home invasions of Ms. Wilk and Ms. Peasie Taylor as well as two days
afterwards for the home invasion of Mr. Andrae Taylor. All that evidence was
collected inside of 4889 Woodhall Street, okay. . . .
***
For all those reasons, and for this evidence, looking at the group of coconspirators who essentially run roughshod over a neighborhood over there on
Woodhall Street, we’d ask you to find the defendant guilty as charged on all these
counts. That is that he aided and abetted in all these home invasions, three of
them, the breaking into the bar, and the receiving and concealing stolen property,
storing it at his location when the police got there on both times . . . .
-5-
Moreover, the amendment in no way altered the nature of defendant’s trial defense or the
evidence supporting the defense. At trial, defendant denied any participation in the charged
breaking and entering or home invasions, maintaining that he spent many days away from 4889
Woodhall Street in September 2008, and that when staying at 4889 Woodhall he was nearly
always inebriated and never noticed any stolen property there. Defense counsel also highlighted
the lack of physical evidence or eyewitness testimony tying defendant to any of the charged
crimes. The chosen defenses applied with equal force irrespective whether the prosecutor
pursued defendant’s criminal enterprise conviction under MCL 750.159i(1) or (2). McGee, 258
Mich App at 688.
The trial court did not abuse its discretion to the extent it amended the information
because (1) defendant faced the same criminal enterprise charge contained in the information, (2)
he had reasonable notice of the potential applicability of a criminal enterprise charge under MCL
750.159i(2) stemming from his association with 4889 Woodhall, and (3) the amendment
occasioned no prejudice to defendant’s trial defense. Because no due process violation or fair
trial deprivation occurred related to the trial court’s jury instructions, defense counsel was not
ineffective for failing to raise a groundless objection to the criminal enterprise instructions.
People v Thomas, 260 Mich App 450, 457; 678 NW2d 631 (2004).
II. PROSECUTORIAL MISCONDUCT
Defendant further avers that several instances of prosecutorial misconduct infringed on
his right to a fair trial.
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. [People v Schutte, 240 Mich App 713, 721; 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).]
This Court reviews alleged 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). But appellate review of improper remarks by the prosecutor is
generally precluded absent an objection by defense counsel because a failure to object deprives
the trial court of an opportunity to cure the alleged error. People v Stanaway, 446 Mich 643,
687; 521 NW2d 557 (1994). This Court reviews unpreserved claims of prosecutorial misconduct
only for plain error that affected the defendant’s substantial rights. Schutte, 240 Mich App at
720.
Defendant submits that the following portions of the prosecutor’s cross-examination of
defendant unfairly shifted to him the burden of proof at trial and improperly encroached on
privileged communications with defense counsel:
-6-
Prosecutor: The—Mr. Randall and Mr. Copeland, you’ve had contact
with them on the first day of trial, is that correct, in this case?
Defendant: Yes.
Prosecutor: Okay. Despite counsel telling this jury that Mr. Sparks may
testify and you may testify, do you have some indication or suggest to your
counsel that Mr. Randall and Mr. Copeland would testify?
Defendant. Yes.
***
Defense counsel: I guess I have to object on the grounds that I don’t know
whether or not they’re going to testify or not. I don’t think. There’s privileges
they have and so on. I haven’t mentioned that to the jury.
The Court: Well, that wasn’t really the question, though. We understand
that we don’t know for sure whether they’re going to testify or not.
Defense counsel: That’s why I never brought before the jury.
obviously even my client shouldn’t be able to speculate on that.
And
The Court: Well, your client is being asked what . . . his understanding is
with respect to these witnesses based on any conversations he’s had with them. I
think that’s what—
Prosecutor: That’s correct, your Honor.
The Court: —counsel’s saying. Yeah. So that’s permissible.
Prosecutor: And you were the one having conversations with Mr.
Copeland and Mr. Randall about them testifying; is that correct?
Defendant: Yeah.
***
Prosecutor: Okay. So you’re the one making the arrangements for that,
right?
Defendant: Yes.
Prosecutor: Okay. And then you informed your attorney about that,
right?
Defendant: Yes.
-7-
Given that defendant offered no objection to the prosecutor’s inquiries on the ground that they
shifted the burden of proof or infringed on his attorney-client privilege, we review these
unpreserved claims only to determine whether any plain error affected defendant’s substantial
rights. Schutte, 240 Mich App at 720. We detect from the prosecutor’s challenged questions no
risk that any plain error affected the outcome of defendant’s trial. People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999).
With respect to defendant’s burden of proof complaint, the prosecutor did nothing
tending to unlawfully shift the burden of proof to defendant. Our Supreme Court summarized
the relevant guiding principles when addressing a burden shifting contention like defendant’s:
Our Court of Appeals has addressed on many occasions the claim that
prosecutorial comment on the failure of the defendant to call corroborating
witnesses “shifted the burden of proof.” These published opinions of the Court of
Appeals have consistently held that when a defendant advances an alternate
theory or alibi, “the prosecution, by commenting on the nonproduction of
corroborating alibi witnesses, is merely pointing out the weakness in defendant’s
case” and not “improperly shifting the burden of proof to the defendant.” [People
v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979).]
***
In sum, prosecutorial comment that infringes on a defendant’s right not to
testify may constitute error. However, where a defendant testifies at trial or
advances, either explicitly or implicitly, an alternate theory of the case that, if
true, would exonerate the defendant, comment on the validity of the alternate
theory cannot be said to shift the burden of proving innocence to the defendant.
Although a defendant has no burden to produce any evidence, once the defendant
advances evidence or a theory, argument on the inferences created does not shift
the burden of proof. [People v Fields, 450 Mich 94, 111-112, 115; 538 NW2d
356 (1995).]
Presumably, the prosecutor’s inquiries of defendant whether he spoke to two codefendants about
testifying meant to cast doubt on defendant’s idea or intent to call these corroborating witnesses.
But because defendant testified at trial and advanced “an alternate theory of the case that, if true
would exonerate . . . [him],” the prosecutor’s questions about potential testimony by his
codefendants merely and properly intended to “comment on the validity of the alternate theory
[and] cannot be said to shift the burden of proving innocence on the defendant.” Id. at 115.
Stated differently, because “the prosecutor’s comments d[id] not burden . . . defendant’s right not
to testify, commenting on . . . defendant’s failure to call a witness does not shift the burden of
proof.” Id. at 112. And defendant endured no conceivable prejudice in light of Copeland’s and
Randall’s appearances at trial to testify for the defense,5 and the trial court’s final instructions
5
Because Copeland testified at trial on behalf of the defense and Randall, whom defendant
ultimately opted against calling, also appeared at trial to testify, we need not address defendant’s
suggestion on appeal that “[t]he prosecutor’s misconduct in questioning Mr. Roberson about co-8-
that the prosecutor “must prove each element of the crimes beyond a reasonable doubt. The
defendant is not required to prove his innocence or to do anything. In the end if you find the
prosecutor has not proven every element beyond a reasonable doubt, then you must find the
defendant not guilty.”
Regarding defendant’s criticism that the prosecutor intruded into the attorney-client
relationship between defendant and defense counsel, defendant specifically suggests as improper
the above-quoted inquiry about whether defendant had advised defense counsel to call his
codefendants as witnesses, and also the following cross-examination questions:
Prosecutor: The—and, sir, you provided your attorney with the
information that you had no money?
Defendant: Yes.
Prosecutor: At the time of either arrest; is that correct?
Defendant: Yes.
Prosecutor: You didn’t tell counsel about your tape when you talked to
your buddy about the $200, getting that out of your house, did you?
Defendant: That was like about—I was locked up about a week and a half
after when I made that phone call.
Prosecutor: Okay. You never told your attorney about that; is that right?
Defendant: No. Wasn’t any money there in my house.
Defendant also points out that the prosecutor again referenced this improper topic in his closing
argument when he noted, “But the defendant didn’t tell his attorney about that tape from jail
about the money, okay. The defendant didn’t tell the—well strike that.” In light of defendant’s
failure to object to any of these additional, alleged instances of prosecutorial misconduct at trial,
we also review these claims to determine whether any plain error affected defendant’s substantial
rights. Schutte, 240 Mich App at 720.
“A prosecutor should not question a defendant regarding conversations with his or her
attorney, as the attorney-client privilege is fundamental to our system of jurisprudence and the
privilege is destroyed if improper inference can be drawn from its exercise.” People v Dobek,
274 Mich App 58, 72; 732 NW2d 546 (2007) (internal quotation omitted). The prosecutor did
elicit that defendant spoke with defense counsel about potential testimony by two codefendants
and not having any money; however, the audio-recorded phone call references in the
prosecutor’s last three above-quoted questions and the closing argument excerpt did not broach
(…continued)
Defendants and potential witnesses Randall and Copeland was particularly egregious because
had either . . . asserted his Fifth Amendment privilege against self-incrimination, Mr. Roberson
could not force him to testify.”
-9-
“[t]he substance of any confidential communications.” Id. The prosecutor’s inquiry whether
defendant told his counsel he had no money, and the follow-up inquiries concerning the audiorecorded phone call, responded to an essential component of the defense theory of the case,
which defense counsel had elicited on direct examination of defendant, namely that defendant
never possessed any proceeds from the charged crimes. In conclusion, while improper, the three
questions of the prosecutor that yielded testimony about the content of communications between
defendant and defense counsel did not affect the outcome of defendant’s trial, considering the
brief and isolated nature of the prosecutor’s improper questions and the wealth of properly
admitted evidence incriminating defendant in the criminal enterprise involving the breaking and
entering and home invasions.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Kurtis T. Wilder
/s/ Elizabeth L. Gleicher
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
