PEOPLE OF MI V JAMES EARNEST JONES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 22, 2010
Plaintiff-Appellee,
v
No. 289946
St. Clair Circuit Court
LC No. 08-001476-FH
JAMES EARNEST JONES,
Defendant-Appellant.
Before: METER, P.J., and SERVITTO and BECKERING, JJ.
PER CURIAM.
Defendant was convicted by a jury of four counts of second-degree criminal sexual
conduct (CSC II), MCL 750.520c (victim under age 13 or over age 13 with multiple variables),
involving his daughter, and sentenced as a second-offense habitual offender, MCL 769.10, to
concurrent prison terms of 36 months to 22 years and six months on each count. He now appeals
as of right. We affirm.
I
Defendant’s first argument on appeal is that his trial counsel was ineffective for failing to
object to the testimony of a child protective services worker and a detective. Defendant claims
that their testimony constituted opinion testimony on the ultimate issue of his guilt. We disagree.
An ineffective assistance of counsel claim is a mixed question of law and fact. People v
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial court’s findings of fact, if any, are
reviewed for clear error, and the ultimate constitutional issue arising from an ineffective
assistance of counsel claim is reviewed de novo by this Court. Id. Because defendant did not
raise this issue in the trial court, and there was no evidentiary hearing held pursuant to People v
Ginther, 390 Mich 436; 212 NW2d 922 (1973), our review is limited to the existing record.
People v Cox, 268 Mich App 440, 453; 709 NW2d 152 (2005).
Effective assistance of counsel is presumed and defendant bears the
burden of proving otherwise. To succeed on a claim of ineffective assistance of
counsel, the defendant must show that, but for an error by counsel, the result of
the proceedings would have been different, and that the proceedings were
fundamentally unfair or unreliable. The defendant bears a “heavy burden” on
these points. Defendant must overcome a strong presumption that counsel’s
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performance constituted sound trial strategy. “This 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 Petri, 279 Mich
App 407, 410-411; 760 NW2d 882 (2008) (citations omitted).]
A witness may not express an opinion regarding the defendant’s guilt or innocence.
People v Bragdon, 142 Mich App 197, 199; 369 NW2d 208 (1985). However, we do not find
that the challenged testimony constitutes an expression of defendant’s guilt.
Defendant argues that his trial counsel should have objected to the testimony of a child
protective services worker who provided an overview of her investigation into the complainant’s
allegations against defendant. The witness described having collected information from the
complainant and “um, protocol after that was that I did contact the courts to ask for a Pick Up
Order” (emphasis added). When asked to define a “Pick Up Order” and explain how it is
obtained, the witness testified that her agency “contact[s] the court and we inform them of
information that we’ve received, um, and let them know that we feel that the child is not safe in
the home; that they need to be removed from the home.” Defendant contends that discussion of
the Pick Up Order amounts to an improper opinion by the child protective service worker
regarding defendant’s guilt. Implicit in this explanation of procedure was that the agency had
concluded that the complainant would be safer outside of defendant’s home. However, the jury
could reasonably conclude that such a procedure was standard protocol pending further
investigation of the claims being made, taken at face value, and not the result of a conclusion that
the complainant’s claims were actually true with respect to defendant’s guilt, which was the
subject of the trial and left to the jury to consider.1 The witness’s testimony is somewhat
analogous to a police officer testifying that after obtaining statements from various witnesses, a
defendant was arrested. Defense counsel was not required to advocate a meritless position and
raise an unfounded objection.2 People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005).
The complainant was also interviewed by a sheriff’s department detective pursuant to a
referral from Child Protective Services. At trial, the prosecutor asked the detective to describe
the complainant’s demeanor during the interview, and the detective described it as “appropriately
uncomfortable.” Defendant contends that such phrasing amounts to an improper opinion as to
defendant’s guilt. However, the challenged testimony did not address the issue of defendant’s
guilt. The witness continued her response by explaining that “[n]obody really wants to sit and
talk about that kind of an issue as a teenager with anybody, and particularly a total stranger . . . .”
1
On cross-examination the child protective services worker again mentioned protocols, stating
that, “any time there’s allegations of this nature, that’s protocol that we send a referral to law
enforcement as well. Um, I—actually in my notes it shows that I got the call from Detective
Jacobsen; that she contacted me to inform me that she had been assigned to the case.”
2
Further, choosing not to object is consistent with defense counsel’s trial theory, which was that
the complainant fabricated the allegations in order to live with her stepmother, defendant’s exwife. The witness’s testimony about removing the complainant from defendant’s home was
consistent with that alleged motive. This Court will not substitute its judgment for that of
counsel regarding matters of trial strategy. Petri, 279 Mich App at 411.
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The witness was simply expressing her opinion that being uncomfortable is appropriate in that
type of situation. Defendant’s trial counsel cannot be faulted for failing to raise a meritless
objection. Mack, 265 Mich App at 130.
II
Defendant next argues that he was denied a fair trial because the trial court admitted
evidence that he voluntarily released his parental rights to the complainant. The decision
whether to admit evidence is within the discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion. Silberstein v Pro-Golf of America, Inc, 278 Mich App 446,
460; 750 NW2d 615 (2008). An abuse of discretion occurs when a trial court chooses an
outcome falling outside the range of reasonable and principled outcomes. People v Babcock, 469
Mich 247, 269; 666 NW2d 231 (2003). A preserved evidentiary error does not merit reversal in
a criminal case unless, after an examination of the entire cause, it appears that it is more probable
than not that the error was outcome determinative. People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).
Generally, all relevant evidence is admissible, and irrelevant evidence is not. MRE 402.
Evidence is relevant if it has any tendency to make the existence of a fact that is of consequence
to the action more or less probable than it would be without the evidence. MRE 401. “Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
Rebuttal evidence explains, contradicts, or otherwise refutes an opponent’s evidence and
tends to weaken or impeach it. People v Figgures, 451 Mich 390, 399; 547 NW2d 673 (1996).
A party may not introduce evidence during rebuttal unless it is properly responsive to evidence
introduced or a theory developed by the opponent. Id. “The test for error regarding rebuttal
evidence is whether it is justified by the evidence it is offered to rebut.” People v Leo, 188 Mich
App 417, 422; 470 NW2d 423 (1991).
Defendant testified in his own defense at trial. On direct examination, defendant testified
that after the complainant made allegations against him and was removed from his home, he
voluntarily appeared at a Team Decision Meeting at the Department of Human Services—a
meeting that he did not have to attend—in order to “find out what—more information on what
was going on to make sure that [the complainant] was going to be in a, a decent place to be taken
care of.” On cross-examination, the prosecutor sought and received defendant’s confirmation
that he attended the Team Decision Meeting “to find out what was going on and to make sure
[the complainant] had a decent place to be taken care of.” The prosecutor also elicited from
defendant an admission that at the Team Decision Meeting, he declined to allow the complainant
to stay with her stepmother because the stepmother would not allow defendant to see his son.
Defendant testified that he was concerned about not being able to see the complainant anymore
and was upset about that.
During later cross-examination, defendant testified that he had not had contact with the
complainant for almost a year. When the prosecutor asked defendant why he had not had contact
with the complainant, defendant responded that the complainant was removed from his custody.
Then, at a bench conference outside the presence of the jury, the prosecutor sought to admit
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rebuttal evidence that defendant had voluntarily terminated his parental rights to the
complainant. In a separate record, defendant testified that he voluntarily relinquished his rights
because it would be impractical to make the complainant live with him if she did not want to and
was willing to make sexual abuse allegations against him. The parties argued at length regarding
the admissibility of defendant’s voluntary termination. The prosecutor argued that defendant
“opened the door” when he testified that he did not want the complainant to live with her
stepmother because he was afraid he would never see her and that he attended the Team Decision
Meeting and voluntarily participated in the process under the guise of being a good father.
According to the prosecutor, it would be unfair to leave out the fact that at the end of or soon
after that meeting, defendant announced that he was releasing his rights to the complainant. The
prosecutor further argued that defendant’s voluntary termination served to rebut defendant’s
characterization of himself as “such a great and devoted father.” Defendant objected, contending
that the evidence was not relevant, and any probative value was substantially outweighed by the
danger of unfair prejudice under MRE 403. The trial court clearly struggled with discerning the
relevance of the evidence, but ultimately ruled that the evidence was admissible, stating:
I have, I’ve well, I’ve overruled your objection to the extent that he may
testify that he will be—he will testify in response to the question by the
Prosecutor that’s limited to what he testified to on the separate record.
***
It’s not all that complicated. The fact of the matter is he, he told me on the
separate record he agreed to . . . release the . . . parental rights and the reason for
that was because of what he explained to me on the record.
***
It was not, it was not because he had the option of a trial or voluntary
release, but he had other motives to do that. That’s what this is about, which is
responsive to the question which may be contrary to what he may have said in his
direct examination.
While the trial court’s ruling is rather difficult to discern, it appears that the trial court
accepted the prosecutor’s argument that the information could be used as rebuttal evidence given
that defendant may have contradicted himself or opened the door to impeachment regarding his
motives at the time of the Team Decision Meeting and whether he was concerned about
continuing to see the complainant or looking out for her best interests as he alleged.
The evidence that defendant voluntarily released his parental rights is directly responsive
and contradictory to his testimony on direct examination and the answers he gave on crossexamination. Defendant portrayed himself as a good parent who was primarily interested in the
complainant’s best interests. He indicated that he did not want the complainant to live with her
stepmother because he was afraid he would not be able to see her, yet promptly thereafter, he
voluntarily terminated his parental rights, which had the effect of the complainant indefinitely
residing with her stepmother. Furthermore, on direct, defendant testified that he opposed the
complainant’s placement with her stepmother at the Team Decision Meeting, but on the separate
record, defendant testified that he released his parental rights so that the complainant could live
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with her stepmother if that was what she wanted. The voluntary termination evidence was
proper rebuttal evidence, as it was relevant to the issue of defendant’s credibility and tended to
refute defendant’s testimony that he was a caring parent who wished to see the complainant.
MRE 401; Figgures, 451 Mich at 399.
Defendant contends that the evidence was overly prejudicial and likely to lead the jury to
conclude that he was guilty because the allegations had been substantiated in another forum.
However, defendant testified that he voluntarily released his parental rights, and no reference
was made to an involuntary termination proceeding. Additionally, explaining to the jury that
defendant voluntarily released his rights out of concern for the complainant’s well being, and
that he agreed to let her live where she wanted to live, could be viewed as putting her interests
above his own.
III
Defendant next argues that the prosecutor engaged in misconduct by disparaging the
exercise of his constitutional right to a jury trial and his right to confront witnesses, and that his
counsel was ineffective for failing to object. Our review of an unpreserved claim of
prosecutorial misconduct is limited to ascertaining whether there was plain error that affected the
defendant’s substantial rights. People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008).
With respect to defendant’s ineffective assistance claim, he must establish that but for defense
counsel’s error, the result of the proceedings would have been different, and that the proceedings
were fundamentally unfair or unreliable. Petri, 279 Mich App at 410.
The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). 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). “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.”
Brown, 279 Mich App at 135.
Read as a whole, we find that while the prosecutor laced her remarks with what could be
considered a negative connotation regarding defendant having exposed the complainant to the
unpleasantries of a trial, overall, the prosecutor’s remarks were made in support of her argument
that the complainant was credible and to attack defendant’s theory that the complainant
fabricated the allegations. The prosecutor pointed out that at least one of the complainant’s
alleged motives—to make false allegations in order to live with her stepmother—no longer
existed, yet the complainant maintained her allegations and endured extensive scrutiny of both
herself and her accusations of sexual abuse at trial. A prosecutor may argue from the facts in
evidence that the defendant or another witness is or is not credible, Dobek, 274 Mich App at 67,
and may respond to arguments raised by a defendant, see People v Thomas, 260 Mich App 450,
454; 678 NW2d 631 (2004).
The trial court also offered the following instructions to the jury: “The lawyers’
statements and arguments are not evidence. . . . You should accept only things the lawyers say
that are supported by the evidence and your own common sense and general knowledge.” In
addition, the judge told the jury, “You must not let sympathy or prejudice influence your
decision.” Jurors are presumed to follow their instructions. People v Graves, 458 Mich 476,
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486; 581 NW2d 229 (1998). Further, if the prosecutor had committed any misconduct, a timely
objection and curative instruction would likely have alleviated any prejudicial affect by
explaining to the jury that defendant has a constitutional right to a trial and to confront witnesses.
See People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001).
With respect to defendant’s ineffective assistance claim, defense counsel was not
required to advocate a meritless position and raise an unfounded objection. Mack, 265 Mich
App at 130. Assuming defense counsel was ineffective for not objecting, review of the record
reveals that absent such error, the result of the proceedings would not have been different.
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ Jane M. Beckering
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